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THE LAW

OF THF

Canadian Constitution

The Hon. W. H. P. CLEMENT, B.A., LL.B. (Tor.)

JUDGE OF THK SUPKKMB COURT OF BRITISH COLUMBIA

THIRD EDITION

TORON ro :
THE ("ARSWELL COMPANY, LIMITED

1916

London :
SWEET & MAXWELL, LIMITED

CoPYEiGHT : Canada, December, 1915, by The Cabswell Co., L mited.

CONTENTS

PAGE

Preface v

Table op Cases Cited vii

Chap. I. Outline Sketch 1^

" II. The Crown Imperial , 7 v '

III. The Crown in Canada 18 ■/

" IV. The British Parliament as a Constituent

Assembly 29 ^

" x:. V. Constituent Powers of Canadian Legisla-
tures 34 '^

" VI. Imperial Legislation and Consequent Col-

onial Limitations: General Principles... 51 v

" VII. Exterritoriality 65^^ ~

" VIII. The Crown in Council (Imperial) ^^^ v/

'* IX. Allegiance : Nationality : Naturalization : _

Aliens 165

" X. Exclusion: Expulsion: Extradition 190

" XI. The Army and Navy 201

XII. Tlie Merchant Shipping 211

■" . XIII. Miscellaneous Imperial Statutes 248

'* ' XIV. English Law Introduction 271 ^' —

XV. Outline Sketch (Part II.) 301

" XVI. Pre-Confederation Constitutions 316

" XVII. A Constitution Similar in Principle to That

of The ITnited Kingdom , 335

XVIII. A Charter of Self -Government 3?7

" XIX. A Federal Union: Principles Involved 3I0___

XX. The Division of the Field 404

" — XXI. The Scheme of Distribution : View of the

Privy Council 412

- XXIL The Cardinal Principle of Allotment 448

-XXIIL Class-Enumerations 456

" -XXIV. Overlapping Areas: Concurrent Powers:

Federal Authority Paramount 464

" - XXV. Rules of Interpretation for Determining

Scope of the Various Classes 472

" - XXVI. The Method of Enquiry: Aspect and Pur-
pose : Presumption in Favour of Validity. 483

" - XXVII. The Doctrine of Implied Powers 493

XXVIIL The Administration of Justice -508

XXIX. Crown Property 598

-XXX. Taxation 639

" XXXI. Aliens : Naturalization : Indians : Immigra- x/"

tion 669

-- XXXII. The Regulation of Trade and Commerce 683

XXXIII. Navigation and Shipping 695

XXXIV. Sea Coast and Inland Fisheries 712

-XXXY. Companies -718

IV . CONTENTS.

PAGE

Chap. XXXVI. Works and Undertakings : Railways 742

XXXVII. Public Services 773

XXXVIII. Education 777

XXXIX. Municipal Institutions 791

" XL. Commercial Law 798

~ XLI. Property and Civil Rights - 815

- XLI I. The Provincial Residuum 829

" XLIII. Executive Government 837

" XLIV. The North- West Territories 847

APPENDICES—

A. Constitutional Statutes, Orders-in-Council, etc. :

1. British North America Act, 1867 863

2. Order-in-Council Admitting Rupert's Land and the

North Western Territory 893

3. Manitoba Act 898

4. British North America Act, 1871 904

5. Order-in-Council Admitting British Columbia 905

6. Order-in-Council Admitting Prince Edward Island. 912

7. British North America Act, 1886 918

8. Deputy Speaker of Senate Act 919

9. Alberta Act 919

10. Saskatchewan Act 937

11. Ordinances (North- West Territories) respecting

Separate Schools 954

12. Letters Patent constituting the office of Governor-

General of Canada 959

13. " Instructions " accompanying same 962

14. Quebec Resolutions 965

B. Important Imperial Statutes Extending to Canada :

1. Colonial Laws Validity Act, 1865. 976

2. Colonial Courts (Admiralty Jurisdiction) Act, 1849. 978

3. Territorial Waters Jurisdiction Act, 1878 981

4. Colonial Courts of Admiralty Act, 1890 984

5. Foreign Tribunals Evidence Act 995

6. Colonial Tribunals Evidence Act 997

7. Colonial Law Ascertainment Act 999

8. Foreign Law Ascertainment Act 1001

9. Naturalization Act, 1870 1004

10. British Nationality and Status of Aliens Act, 1914. 1014

11. Extradition Act, 1870 1024

12. Fugitive Offenders' Act, 1881 1038

13. Colonial Naval Defence Act, 1865 1053

14. Naval Discipline (Dominion Forces) Act, 1911.... 1055

15. Army Annual Act, 1913 1057

0. Table of British Statutes as to the Operation of
WHICH IN Canada Question has been Raised
IN the Courts 1060

GENERAL INDEX 1065

PREFACE.

The second edition of this work appeared eleven years ago.
A great part of the present edition consists of entirely new
matter, and the whole book has been recast and rewritten.
It is much enlarged and, it is hoped, improved. The end
aimed at, however, has always been, as expressed in the
preface to the first edition, "to exhibit, in as compact a
form as the 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 British North America Act."

W. H. P. CLEMENT.

15th November, 101 5.

- 4

TABLE OF CASES CITED.

PAGE

A. V. B., L. R. 1 P. & D. 559; 37 L. J. P. & Mat. 80; 22

O. L. R. 261 558, 561

A. B. & Co., Re (1900) , 69 L. J. Q. B. 375 89

Abbott V. St. John, 40 S. C. R. 597 642

Abd-el-Messir v. Chukri Farra, 57 L. J. P. C. 88 183

Abraham v. R., 6 S. C. R. 10 591

Ackman v, Moncton, 24 N. B. R. 103 641

Adams, Re (1837) , 1 Moo. P. C. 460 1T9

^neas Maedonald, Re, 18 St. Tr. 858 172

Aitcheson v. Mann, 9 Ont. Pract. R. 473 555

Alberta Ry. Act, Re (1915), 48 S'. C. R. 9, 24. 25; A. C. 363;

84 L. J. P. C. 58. .457, 492, 497, 500, 503, 507, 697, 743,

748, 760, 769, 771

Alberta, &c., Ry. Co., Re (1910) , 20 Man. R. 697 534

Alberta & Great Waterways Ry. Co., Re (1910), 20 Man. R.

6D7 262

Algoma Cent. Ry Co. v. R., 7 Ex. C. R. 239, 253. .53, 60, 63, 214, 331
Allen V. Hanson (1890), 18 S. C. R. 667; 4 Cart. 470. .59,

251. 401, 809
Amalgamated Soc. of Railway Servants v. Osborne (1910). A. C.

87 ; 70 L. J. P. C. 87 501, 719

Amalia, The (1863), 32 L. J. Adm. 191 (P.C.) 79, 88

Anderson v. Dunn, 6 Wheat. 204 38

Andrew v. White, 18 U. C. Q. B. 170 331

Angers v. Montreal, 24 L. C. Jur. 259 691

Arbitration, &c.. Re, 30 S. C. R. 151; 6 L. J. N. S. 212; 4

Cart. 712 599, 600

Armitage, Ex. p. (1902), 5 Can. Cr. Cas. 342, 343 554, 843

Armstrong v. McCutchin, 2 Pug. 381 ; 2 Cart. 494 812

Arnold V. Arnold (1887) , 6 L. J. Ch. 218 76

Ashbury v. Ellis (1893), A. C. 339: 62 L. J. P. C. 107; 5

Cart. 636 92, 93, 98, 105, 114

Ashbury Railway Carriage & Iron Co. v. Riche 719

Atty.-Gen. v. British Museum (1903), 72 L. J. Chy. 742 121

Atty.-Gen. v. Campbell (1872), 41 L. J. Ch. 611 76

Atty.-Gen. v. Flint (1884), 16 S. C. R. 707; 4 Cart. 288 59

Atty.-Gen. v. Foster, 31 N. B. R. 153, 164 358, 498

Atty.-Gen. v. Great Eastern Ry. Co 719, 720

Atty.-Gen. v. Napier (1851), 20 L. J. Ex. 173 76

Atty.-Gen. v. Sillem (1864), 10 H. L. Cas. 704; 33 L. J.

Ex. 212 538

Atty.-Gen. v. Stewart, 2 Mer. 143 274, 281

Atty.-Gen. v. Toronto, 18 O. A. R. 622 646

Atty.-Gen. for Alta. v. Atty.-Gen. of Can. (1915), 48 S. C. R.

9 ; A. C. 363 ; 84 L. J. P. C. 58 766

Atty.-Gen. for Australia v. Colonial Sugar R. Co. (1914), A.

C. 237 ; 83 L. J. P. C. 154 402, 775

Viii TABLE OF OASES CITED.

PAGE
Atty.-Gen. of B. C. v. Atty.-Gen. of Can. (1906), A. C. 552;

75 L. J. P. C. 114 622

Atty.-Gen. v. Bishop of Manchester, L. R. 3 Eq. 436 148

Atty.-Gen. B. C. v. Can. Pac. Ry. (1906), 11 B. C. R. 28;

A. C. 204; 75 L. J. P. C. 38 389, 390

Atty.-Gen. B. C. v. E. & N. Ry. (1900), 7 B. C. R. 221. .347, 590, 617

Atty.-Gen. v. Victoria, 2 B. C. R. 1 358, 650

Atty.-Gen. (B.C.) v. V. V. & E. Ry. Co., 9 B. C. R. 338 594

Atty.-Gen. (Can.) v. Cain & Gilhula (1906), A. C. 542; 75

L. J. P. C. 81 106, 191, 193, 360

Atty.-Gen. (Can.) v. Ewen, 3 B. C. R. 468 592, 710

Atty.-Gen. of Can. v. Flint, 16 S. C. R. 707; 3 R. & G. 453

524, 532, 534

Atty.-Gen. of Can. v. Keefer, 1 B. C. R. 368 617

Atty.-Gen. of Can. v. Montreal (1885), 13 S. C. R. 352 645

Atty.-Gen. of Can. v. Ritchie, &c., Co. (1914), 20 B. C. R. -

333 609, 618

Atty.-Gen. of Can. v. Sam Chak (1909), 44 N. S. R. 19 . . . . 533

Atty.-Gen. of Can. v. Sydney (1914), 49 S! C. R. 148 796

Atty.-Gen. of Commonwealth v. Ah Sheung (1906), 4 Comm.

L. R. 949 165, 682

Atty.-Gen. for Commonwealth v. Colonial Sugar Refining Co.

(1914) , A. C. 237, at 254 445

Atty.-Gen. of Hong-Kong v. Kwok-a-Sing (1873), 42 L. J. P. C.

6^ 101

Atty.-Gen. (N.S.W.) v. Bertrand, L. R. 1 P. C. 520; 36 L. J.

P. C. 51 159, 164

Atty.-Gen. (N.S.W.) v. Collector of Customs (1909), A. C.

345 ; 78 L. J. P. C. 114 162

Atty.-Gen. (N.S.W.) v. Curator (1907), 77 C. J. P. C. 14.... 126
Atty.-Gen. (N.S.W.) v. Love (1898), A. C. 679; 67 L. J.

P. C. 84 275

Atty.-Gen. (Ont.) v. Atty.-Gen. (Can.) (1912), A. C. 571; 81

L. J. P. C. 210 35, 438, 440. 441

Atty.-Gen. of Ont. v. Hamilton Street Ry. (1903), A. C. 524;

72 L. J. P. C. 105 488, 549, 564

Atty.-Gen. (Ont.) v. N. F. Intern. Bridge Co. (1873), 20

Grant 34 ; 1 Cart„ 813 ; 28 Grant. 65 ; 6 O. A. R. 537 ; 2

Cart. 559 591, 592

Atty.-Gen. of Que. v. Queen Ins. Co. (1878), 3 App. Cas. 1090;

22 L. C. Jur. 309 376, 401, 419, 487, 490, 651, 658, 664

Atty.-Gen. of Que. v. Reed, 10 App. Cas. 141 ; 54 L. J. P. C. 12

652, 664, 665

Aubrey v. Genest, Q. L. R. 4 Q. B. 523 554

Bale des Chaleurs Ry. v. Nantel (1896), Que. L. R. 9 S. C. R

47 ; 5 Q. B. 65 762

Bank of Australasia v. Nias (1851), 20 L. J. Q. B. 284 98

'Bank of Toronto v. Lamb, 12 App. Cas. 587; 56 L. J. P. C.

87 345, 347, 741

Bank of U. C. v. Bethune, 4 TJ. C. Q. B. (O.S.) 165 64

Barber v. " Nederland " (1909), 12 E. C. R. 252 237

TABLE OF CASES CITED. IX

PAGE

Barrett's Case (1892), A. C. 445; 61 L. J. P. C. 58 ..365, 782, 784

Bartley v. Hodges, 1 B. & S. 375 ; 30 L. J. Q. B. 352 62

Barton v. Taylor, 11 App. Cas. 197 ; 55 L. J. P. C. 1 38

Bateman's Trusts, Re (1873), L. R. 15 Eq. 355; 42 L. J.

Ch. 553 13

Bayer v. Kaiser (1894) , 26 N. S. B. 280 713

Beard v. Steele, 34 U. C. Q. B. 43 467, 692, 800, 822

Beardmore v. Toronto (1910), 21 O. L. R. 505 693, 796, 832

Beaton v. " Christine," 11 Ex. C. R. 167 236, 237

Becquet v. McCarthy, 2 B. &. Ad. 951 57

Behari Lai, Re (1908) , 13 B. C. R. 415 682

/-Bell Tel. Co., Re, 7 O. R. 605 ; 9 O. R. 339. .522, 524, 556, 745, 750
Bennett v. Pharm. Assn., 1 Dorion 336; 2 Cart. 250 . .497, 554, 691

Bergman v. The " Aurora " (1893), 3 Ex. C. R. 228 235, 238

Bermuda, The, Stewart, 245 61

Berry v. Berry, 4 R. & G. 66 280

Bigamy Sections, Re (1897), 27 S. C. R. 461, 475, 476. .97, 111, 180

Blackburn, Re, 2 P. E. I. 281 812

Blackwood V. R. (1882), 8 App. Cas. 82; 52 L. J. P. C. 10

76, 661

Blain, Ex p. (1879), 12 Chy. D. 522 89

Bleasdell v. Townsend, 3 C. L. T. 509 806

Blouin V. Quebec, 7 Q. L. R. 18 ; 2 Cart. 368 490, 554

Bloxam v. Favre (1884), 52 L. J. P. 42; 53 L. J. P. 26 (C.

A.) 167, 188

Board v. Grainger, 25 Grant. 570 781

Bonanza Creek, &c., Co. v. R. (1915), 50 S. C. R. 534 ... .731, 732

Boucher, Re, 4 Ont. App. R. 191 518, 541

Bourgoin v. :Mont. O. & O. Ry., 5 App. Cas. 381. 406 ; 49 L. J.

P. C. 68, 81 373. 377, 397, 743, 765

Bow, McLachlan & Co, v. The " Camosun " (1910), A. C. 597;

79 L. J. P. C. 17 241

Boyle V. Victoria Yukon Trading Co., 9 B. C. R. 213 733

Bradburn v. Edinburgh Life Co. (1903), 5 O. L. R. 657 802

Brandon Bridge, Re (1884) , 2 Man. R. 14 706

Brant v. Griffin, 1 Alta. L. R. 510 294

Brantford v. Grand Valley Ry. (1913), 15 D. L. R. 88 537

Bread Sales Act, Re (1911), 23 O. L. R. 238 691, 801, 832

Broakev v. Brcakey. 2 U. C. Q. B. 349 288

Breeze v. Midland Ry. (1879), 26 Grant. 225 764

Brewers' License Case (1897), A. C. 231; 66 L. J. P. C. 34

375, 655, 664, 666, 667, 691

B. C. Elec. Ry. v. Gentile (1914), A. C. 1034; 83 L. J. P. C.

353 758

B. C. Elec. Ry. V. V. V. & E. Ry. (1914)! 48 S. C. R. 98; A.

C. 1067 ; 83 L. J. P. C. 374. . . .376, 439, 497, 498, 502, 503, 754
B. C. Fisheries, Re (1913), 26 S. C. R. 444; 47 S. C. R. 493,

502. 505; (1914), A. C. 153; 83 L. J. P. C. 169. .246, 247,

278, 297, 387, 395, 615. 625, 628, 699, 700, 712, 713, 714, .

715, 716
British South Africa Co, v. De Beers Consolidated Mines

(1910) , 1 Chy. 354 ; 79 L. J. Chy. 345 718

Briton Medical & Gen. Life Ass'n., Re, 12 O. R. 441 809

Brook V. Brook, 9 H. L. Cas. 193 179, 263

X TABLE OF OASES CITED.

PAGE

Brooks V. Moore (1907), 13 B. C. R. 91 776

Brophy's Case (1895), A. C. 202; 64 L. J. P. C. 70 ; 5 Cart.

r56 155, 364, 365, 453, 469, 782, 784, 790

Brophy v. Atty.-Gen. (Man.) (1895), A. C. 202; 64 L. J.

P. C. 70 779

Brown v. Brown, 14 B. C. R 545

Brown v. Les Cure, &c., 'de Notre Dame de Montreal (1875),

L. R. 6 P. C. 206 ; 44 L. J. P. C. 1 284

Brown v. Reed, 2 Pugs. 212 609

Bruneau v. Massue, 23 L. C. Jur. 60 533

Bryden's Case (1899), A. C. 580; 68 L. J. P. C. 118. .351, 358,

436, 437, 494, 673, 674, 676, 678

Bunny v. Hart, 11 Moo. P. C. 189 248

Burke, Ex p., 34 N. B. R. 200 641

Burk V. Tunstall, 2 B. C. R. 12 517

Burke V. " Vipond " (1913), 14 E. C. R. 326 .237

Buron v. Denman, 2 Exch. 167 130, 144

Burrard Power Co. v. R. (1911), 43 S. C. R. 27, 51; A. C.

87; 80 L. J. P. C. 69. . . .387, 388, 389, 395, 475, 625, 628, 708

Bustin, Ex p., 2 Allen 211 282

Butland V. Gillespie, 16 O. R. 486 287

Cain & Gilhula Case (1906), A. C. 542; 75 L. J. P. C. 81

357, 362, 681

Calder, Re, 2 Western Law Times 1 293

Caldwell v. Eraser 637, 638

Calgary & Edmonton Land Co. v. Atty.-Gen of Alta. (1911),

45 S. C. R. 171 644

California Fig Syrup Co.'s Trade Mark, Re (1888), 58 L. J.

Ch. 341 138

Callendar v. Col. Secy. Lagos (1891), A. C. 460; 60 L. J.

P. C. 33 52, 55, 248

Calvin's Case 166

Cameron v. Kyte, 3 Knapp P. C. 332, 345 131. 132, 146, 260

Campbell v. Australian Mutual (1908), 77 L. J. P. C. 117.107, 723

Campbell v. Hall, Cowp. 204 11, 16, 17, 32, 173, 322, 338, 348

Can. Bank of Commerce v. Adamson, 1 Man. R. 3 295

Can. North. Ry. v. Robinson, 48 S. C. R. 387 758

C. P. N. Co. V. Vancouver, 2 B. C. R. 193 691, 711

C. P. R., Re, 7 Man. R. 389 491

Can. Pac. Ry. v. North. Pac. & Man. Ry. (1888), 5 Man.

R. 313 766

Can. Pac. Ry. v. Notre Dame de Bonsecours (1889), A. C.

367 ; 68 L. J. P. C. 54 488, 759

Can. Pac. Ry. v. Ottawa Fire Ins. Co., 39 S. C. R. 443.. 724,

725, 726, 730

Can. Pac. Ry. v. R. (1907), 39 S. C. R. 476 765, 836

Can. Pac. Ry. v. Toronto (1911), A. C. 461; 81 L. J. P. C. 5

161, 164

C. P. R. & York, Re (1898), 25 O. A. R. 65, 79; (1896), 27

O. R. 559 358, 498, 522, 752, 760, 797

Canadian Prisoners' Case (1839), 5 M. & W. 32 193

TABLE OF CASES CITED. XI

PAGE

Can. Southern Ry. v. Jackson, 17 S. C. R. 316 466, 692, 761

C. S. R. V. Phelps, 14 S. C. R. 132 291

Canterbury, Mayor of, v. Wyburn (1895), A. C. 89 ; 64 L. J.

P. C. 36 275

Cape Breton, Re the Island of, 5 Moo. P. C. 299 317

Carleton v. Ottawa (1909) , 41 S. C. R. 553 754

Carr v. Fire Ass., 14 O. R. 487 291

Carter Medicine Co.'s Trade Mark, Re (1892), 61 L. J. Ch. 716 138
Casgrain (Atty.-Gen.) v. Atlantic & N. W. Ry., 64 L. J. P. C. 88 593

Uavanagh v. Mcllmoylo (1901). 5 Terr. L. R. 235 551

Central Ontario Ry. v. Trusts & Guarantee Co. (1905), A. C.

576 ; 74 L. J. P. C. 116 763

Central Vermont Ry. Co. v. St. John, 14 S. C. R. 288 707, 797

Choquette v. Lavergne, R. J. Q. 5 S. C. 108 667

Christian Bros. v. Minister of Education (1907), A. C. 69;

76 L. J. P. C. 22 780

Church V. Fenton, 5 S. C. R. 239; 4 O. A. R. 150; 28 U. C.

C. P. 384 635, 646

-Citizens v. Parsons, 7 App. Cas. 96; 51 L. J. P. C. 11. .283, 446, 741

Clarke v. Jacques, Q. R. 9 Q. B. 238 517, 795

Clark V. Union Fire Ins. Co., 10 Ont. t^rac. R. 313; 6 Ont.

R. 223 733

Clarkson v. Ont. Bank, 15 O. A. R. 166, 179, 189, 190, 193 ; 4

Cart. 527 491, 806, 811, 828

Clarkson v. Ryan, 17 S. C. R. 251 538

Cleveland v. Melbourne, 2 Cart, 241 ; 4 Leg. News 277 832

Clifford V. R., 83 L. J. P. C. 152 164

Coates V. Moncton, 25 N. B. R. 605 641

Cochin, Rajah of (1859) , Swab. 473 212

College de Medecins v. Brigham (1888), 16 R. L. 283 667

Col. Bldg. Assn. v. Atty.-Gen. (Que.) ri884), 9 App. Cas.

157 ; 53 L. J. P. C. 27 ; 2 Cart. 275 ; 3 Cart. 118. .414, 593,

729, 734, 738, 740, 741, 744, 747

Colonial Investment Co., Re (1913), 22 Man. R. 87 810

Col. Sugar Refining Co. v. Irving (1905), A. C. 369; 74 L. J.

P. C. 77 163

Colquhoun v. Brooks (1888), L. R. 21 Q. B. D. 65; 57 L. J.

Q. B. 70, 439 ; 59 L. J. Q. B. 53 76, 77, 89, 249

Colquhoun v. Heddon (1890) , 59 L. J. Q. B. 465 77, 89

Colquhoun, Bishop of v. Cridge, 1 B. C. R. 25 275

Common Schools Fund Case (1903), A. C. 39; 72 L. J. P. C. 9 599
Comp. Hydraulique v. Continental Heat Co. (1909), A. C. 194;

78 L. J. P. C. 60 414, 744

Companies, Re (1913), 48 S. C. R. 331, 384, 399, 410, 411,

417, 423 377, 380, 458, 489, 664, 720, 725, 726, 732,

735, 740, 744, 775

Connolly v. Woolrich, 11 L. C. Jur. 197 293

Contracting-Out Case (1907), A. C. 65 ; 76 L. J. P. C. 23. .386,

437, 466, 745, 762, 820

Cooey \. Brome. 21 Lower Can. Jur. 186 797

Cooke v. Chas. A. Vogeler Co. (1901), A. C. 102; 70 L. J.

K. B. 181 84, 89, 249

Cooper V. Mclndoe, 32 L. C. Jur. 210 738

Cooper V. Stuart (1889), 58 L. J. P. C. 93 273, 281

Xii TABLE OF CASES CITED.

PAGE
Cope V. Doherty (1858), 21 L. J. Ch. 601; 2 DeG. & J. 614. .

77, 78, 79
Copeland-Chatterson Co. v. Business Systems, Ltd. (1908),

16 O. L. R. 481 562

Corinthe v. St. Sulpice, etc. (1912), A. C. 872 ; 82 L. J. P. C. 8 638

Cote V. Chavreaii, 7 Q. L. R. 258 551

Cotton V. R. (1914), A. C. 176; 83 L. J. P. C. 105. . .650, 657,

658, 659, 663
Counhaye, Re (1873), L. R. 8 Q. B. 40; 42 L. J. Q. B. 217. . 141
County Courts of B. C, Re. 21 S. C. R. 446, 453. .513, 516, 528, 534

Couture v. Dominion Fish Co. (1909), 19 Man. R. 65 81, 114

Cramp Steel Co., Re, 16 O. L. R. 230 741, 810

Crandell v. Mooney, 23 U. C. C. P. 212 709

Crane v. Blackadar (1895) , 40 N. S. R. 100 280

Craw V. Ramsay, Vaughan, 292. 60, 127, 158, 174, 180

Crawford v. Duffield, 5 Man. R. 121 666

Crawford v. Tilden, 13 O. L. R. 169 ; 14 O. L. R. 572 764, 765

Credit Valley Ry. v. Great Western Ry. (1878), 25 Grant. 507. . 765
Crombie v. Jackson (1874), 34 U. C. Q. B. 575; 1 Cart. 685

537, 806

Crowe V. McCurdy, 18 N. S. R. 301 513, 514, 528, 534, 795

Crown Grain Co. v. Day (1908), A. C. 504 ; 78 L. J. P. C. 19. . 538

Cuba, The, 26 S. C. R. 661 222

Cunard v. R., 42 S. C. R. 88 331, 708

Curran v. Grand Trunk Ry. (1898), 25 Ont. App. 407 759, 762

. Cushing V. Dupuy, 5 App. Cas. 409 ; 49 L. J. P. C. 63. .158, 160,

162, 164, 415, 417, 418, 419, 430, 500, 806, 819, 820
Cust, Re, 18 D. L. R. 647 660

Damodhar Gordhan v. Deoram Kangi (1876), 1 A. C. 352 140

Dansereau, Ex p., 2 Cart. 165 ; 19 L. C. Jur. 210 38

Davidson v. Hill (1901), 2 K. B. 606; 70 L. J. K. B. 788. .74, 81, 82

Day V. Savage (1623) , Hobart, 87 87

Deacon v. Chad wick (1901) , 1 Ont. L. R. 346 .' 114

Dean, Re (1913) , 48 S. C. R. 235 530

Deere Plow Co. v. Agnew, 48 S. C. R. 208 730

Deere Plow Co. v. Wharton (1915), A. C. 330, 363; 84 L. J.

P. C. 64. .367, 413, 444, 449, 457, 470, 482, 483, 507, 668,

688, 689, 727, 746, 818

DeGreer v. Stone, 22 Chy. D. 243 ; 52 L. J. Ch. 57 172

De Veber, Re, 21 N. B. R. 401, 425 ; 2 Cart. 552 498, 812

Diblee, Ex p., 25 N. B. R. 119 667

Dillet, Re (1887) , 12 App. Cas. 459 164

Dillingham v. Wilson (1841), 6 U. C. Q. B. (O. S.) 85. . . .286, 287

Dinner v. Humberstone, 26 S. C. R. 252 710, 832

Direct U.S. Cable Co. v. Anglo- Amer. Tel. Co. (1877), L. R.

2 App. Cas. 394 ; 46 L. J. P. C. 71 91, 245

Dixon, Ex p., 2 Rev. Grit. 231 513

Dixon V. Snetsinger, 23 U. C. C. P. 235 704'

Doane v. McKenny, James, 328 280

Dobie v. Temp. Board, 7 App. Cas. 136 ; 51 L. J. P. C. 26 ; 3

Leg. News 251 383, 397, 405, 491, 529, 583, 736, 844

TABLE OF CASES CITED. ' Xlll

PAGE

Doe, Re (1914) , 19 B. C. R. 536 659

Doe d. Allen v. Murray, 2 Kerr. 359 283

Doe (1. Anderson v. Todd, 2 U. C. Q. B. 82 272, 285, 288, 289

Doe d. Auchmuty v. Mulcaster, 5 B. & C. 771 ; 4 L. J. K. B. 311 173

Doe d. Burk v. Cornier (1890), 30 N. B. R. 147 638

Doe d. Duroure v. Jones, 4 T. R. 308; 7 Anne, c. 5 ; 10

Anne, c. 5 ; 4 Geo. II., c. 21 ; 13 Geo. III., c. 21 172

Doe d. Hanington v. McFadden, Berton 153 280, 281

Doe d. Thomas v. Acklam, 2 B. & C. 771 ; 2 L. J. K. B. 129 . . 173
Dom. License Acts Case, Re. 4 Cart. 342, n. 2 ; Dom. Sess.

Papers, 1885, No. 85; Cassels' Sup. Ct. Dig. 509 489, 491

Dom. Provident B. & S. Assn., Re, 25 O. R. 619 517, 809

Dominion Salvage & Wrecking Co. v. Atty.-Gen. (Can.), 21

S. C. R. 72 593

Donegani v. Donegaui (1835), 3 Knapp P. C. 63 179

Dow V. Black, L. R. 6 P. C. 272 ; 44 L. J. P. C. 52 ; 1 Cart.

95 356, 376, 415, 453, 649, 666, 733, 772, 831

Doyle V. Bell, 32 U. C. C. P. 632 ; 11 O. A. R. 326 41, 498

Dulmage v. Douglas, 3 Man. R. 562 ; 4 Man. R. 495 665

Dunbar, etc., Co. v. " Amazonas " (1911), 13 Ex. C. R. 498.. 241
Dunbar Dredging Co. v. " The 'Milwaukee " (1907), 11 Ex.

C. R. 179 227, 240, 246

Duncan, Ex p., 16 L. C. Jur. 188; 3 Man. R. 613 ... .551, 552, 568

Dupont V. La Cie de Moulin (1888), 11 L. N. 225 808

Dyson v. Atty.-Gen. of Eng. (1911), 1 K. B. 410; 80 L. J.

K. B. 531; S. C. (1912), 1 Ch. 158; 81 L. J. K. B.

217 560, 505

East Ind. Co. v. Campbell (J749), 1 Vessey, Sen. 246 190

Eastern, etc., Ry. v. Marriage (1861), 9 H. L. Cas. 32 305

Eccles V. Louisville, etc., Ry. Co. (1912), 1 K. B. 135: 81

L. J. K. B. 445 261

Egyptian Hotels, Ltd. v. Mitchell (1914), 3 K. B. 118; 83

L." J. K. B. 1510 730

Eldorado Union Store Co., Re, 6 Russ. & Geld. 514 809

Ellis, Ex p., 1 P. & B. 593 ; 2 Cart. 527 589, 812

Ellis V. McHenry, L. R. 6 C. P. 228 ; 40 L. J. P. C. 109 249

Ellis V. R., 22 S. C. R. 7 524

Elsebe Maas, The, 5 C. Rob. 123 137

Emerson v. Maddison (1906), A. C. 569; 75 L. J. P. C. 109. . 278

English V. O'Neill (1899) , 4 Terr. L. R. 74 666, 692

English Bay Case 609

Enterprise, The (1913) , 82 L. J. P. 1 222

Entick V. Carrington (1765), 2 Wils. 275 ; Broom 605 147

Esquimalt & N. Ry. v. Bainbridge (1896), A. C. 561; 65 L. J.

P. C. 98 625

European & N. A. Ry. v. Thomas, 1 Pug. 42 ; 2 Cart. 439 772

Evans v. Hudon, 22 L. C. Jur. 268 ; 2 Cart. 346 642

Exchange Bank v. R., 11 App. Cas. 157; 55 L. J. P. C. 5. .122,

124, 126, 326, 360

Xiv TABLE OF CASES CITED.

PAGE

Fabrigas v. Mostyn, Cowp. 161; 1 Sm. Ldg. Cas. (8tli ed.) 652 131

Fader v. Smith. 18 N. S. R. 433 613

Fairbairn, Ex p. (1877) , 18 N. B. R. 4 667

Falkland Islands Co. v. R., 1 Moo. P. C. (N. S.) 299; 2 Moo.

P. C. (N. S.) 206 164, 272

Farwell, The (1881), 7 Que. L. R. 380; 2 Cart. 378. .59, 326,

533, 711

Farwell v. R., 22 S. C. R. 553 602

Feather v. R. (1866) , 35 L. J. Q. B. 200 130, 144, 147

Ferries, Re (1905) ,36 S. C. R. 206 121

Fiddick v. Esquimalt & N. Ry., 14 B. C. R. 412 358

Fielding v. Thomas (1896), A. C. 600; 65 L. J. P. C. 103;

5 Cart. 398 38, 45, 48, 357, 455, 490, 567

Fillmore v. Colburn, 28 N. S. R. 292 641-, 642

Fish V. Doyle (1831) , Drap. 328 286

Fisher v. Carman, Re (1905) , 16 Man. R. 560 581, 832

Fisher's Case, 1 Stuart, L. C. Rep. 245 194

Fisheries Case, 26 S. C. R. 444; (1898), A. C. 700; 67 L. J.

P. C. 90 108, 358, 368, 387, 388, 393, 435, 468, 477,

482, 489, 490, 494, 498, 567, 603, 606, 608, 612, 618, 620,

621, 628, 641, 708, 710, 805, 820, 823

Fitch V. Weber, 6 Hart 63 ; 17 L. J. Ch. 73 172

Flanagan, Ex p. (1899), 34 N. B. R. 577 515, 534

Flick V. Brisbin (1895) , 26 O. R. 423 588

Florence Mining Co. v. Cobalt, etc., 18 O. L. R. 375; C. R.

1^11 A. C. 412 358

Florida Mining Co., Re, 9 B. C. R. 108 809

Foley V. Webster, 3 B. C. R. 30 296

Forsyth v. Bury, 15 S. C. R. 543 377

Fort George Lumber Co. v. Grand Trunk Pac. Ry 703

Fortier v. Lambe, 25 S. C. R. 422 358, 666

Fox, The, Edward's Adm. R. 311 87

Eraser v. Kirkpatrick, 6 Terr. L. R. 403 294

Fraser v. Morrow, 2 Thomp. (N. S.) 232 249

Frederickton v. R., 3 S. C. R. 505, 551 412, 481, 490

Free v. McHugh, 24 U. C. C. P. 20 779

Freeman v. Morton, 2 Thomp. 352 281

Gagnon v. " Savoy " (1904) , 9 E. C. R. 238 237

Ganong v. Bayley, 1 P. & B. 326 ; 2 Cart. 512 514, 525

Gardner v. London, C. & D. Ry., L. R. 2 Ch. 201; 36 L. J.

Ch. 323 763

Gaston v. Wald, 19 U. C. Q. B. 586 291

Geller v. Loughrin (1911) , 24 O. L. R. 18 522

General Iron, etc., Co. v. Schurmanns (1860), 29 L. J. Ch. 877 79

General Land Credit Co., Re, L. R. 5 Ch. 363 ; 39 L. J. Ch. 737 722

George v. Mitchell (1912), 17 B. C. R. 531 625, 627

Georgian Bay Transp. Co. v. Fisher, 5 Ont. App. R. 383 225

Gibbons v. Ogden (1824), 9 Wheat. 1, 204 466, 507, 568

Gibson v. Garvin, 2 W. W. R. 662 711

TABLE OF CASES CITED. XV

PAGE

Gibson v. McDonald, 7 Ont. R. 401 516, 521

Gilbert v. Sayre, 2 Allen, 512 ; 13 Car. II., c. 2 282

Girard, Re (1898) , Q. R. 14 S. C. R. 237 691

Glynn v. Houston. 2 M. (& G. 337 132

Goodhue, Re, 19 Grant. 366 ; 1 Cart. 560 358, 828

Goodspeed. Re (1903) , 26 N. B. R. 91 568

Gordon v. Fuller (1836), 5 U. C. Q. B. (O. S.) 174 61, 258

Gould, Ex p 358

Gould V. Stewart (1896), A. C. 575 : 42 L. J. Chy. 553 126

Gower v. Joyner, 32 C. L. J. 492 ; 2 N. W. Terr. R. 43 515,

534, 574, 822

Grace, The (1894) , 4 Ex. C. R. 283 109, 246

Graham v. Bell, 5 R. & G. 90 280

Graham v. " E. May field " (1913), 14 Ex. C. R. 331 221, 709

Grand Trunk Ry. v. Atty.-Gen. for Can. (1907), 36 S. C. R.

1^6 ; A. C. 65 : 76 L. J. P. C. 23 386, 437, 466, 755

G. T. R. V. Ham. Rad. Elec. Ry. (1897), 29 O. R. 143 753

Grand Trunk Ry. v. Huard (1892), Que. R. 1 Q. B. 502 764

Grand Trunk Ry. & Kingston, Re (1903), 8 Ex. C. R. 349 .. 754

Grand Trunk Ry. v. Therrien (1900), 30 S. C. R. 485 764

G. T. R. V. Toronto (1900), 32 O. R. 120, 129 495, 753, 794

Grant v. Can. Pac. Ry. (1904), 36 N. B. R. 528 765

Graves v. Gorrie, 72 L. J. P. C. 95 257

Green, Ex p., 35 N. B. R. 137 574, 586

Guay V. Blanchet, 5 Que. L. R. 43 528

Guibord's Case 284

H. B. Co. V. Atty.-Gen. of Man., Man. R. temp. Wood 209 849

Haggarty v. LatreiUe (1913), 14 D. L. R. 532 704

Halifax v. Jones, 28 N. S. R. 452 666, 692

Halifax v. McLaughlin Carriage Co., 39 S. C. R. 174 5.38

Halifax v. Western Ass'ce. Co., 18 N. S. R. 387 666, 692

Hall V. Goodall, 2 Murd. Epit. (N. S.) 149 249

Hallman v. Hallman (1914) , 26 O. W. R. 1 561

Hamburg Packet Co. v. Derochers (1903), 8 Ex. C. R. 304 .. 222

Hampton v. Rickard (1874), 43 L. J. M. C. 133 72

Harbour Commrs. Montreal v. The " Albert M. Marshall "

(1908) , 12 Ex. C. R. 178 222

Hardcastle, Statute Law, 3rd ed. 385 158

Hardie v. Hardie, 7 Terr. L. R. 13 561

Harding v. Mayville 779

Harnett v. Crick (1908), A. C. 470 ; 78 L. J. P. C. 38 38

Harris, Re (1909) , 19 Man. R. 117 209, 775

Harris v. Davis (1885), 10 App. Cas. 259; 54 L. J. P. C.

15 272, 276

Harris •& Hamilton, Re, 44 U. C. Q. B. 641 690

Harris v. Harris, 3 Terr. L. R. 289 561

Harvey v. Lord Aylmer, 1 Stuart 542 '. 132

Heater v. Anderson (1910) , 13 E. C. R. 417 237

Hesketh v. Ward, 17 U. C. C. P. 667 282, 290

Hewson v. Ontario Power Co., 6 O. L. R. 11 ; 8 O. L. R. 9 ;

36 S. C. R. 596 749

Xvi TABLE OF CASES CITED.

PAGE

Hill V. Bigge, 3 Moo. P. C. 465 131, 132, 133

Hodge V. R. (1883), 9 App. Gas. 117; 53 L. J. P. C. 1 : 3
Cart. 144; 7 O. A. R. 274.... 93, 107, 349, 350, 351, 357,
381, 384, 426, 466, 481, 484, 485, 488, 489, 554, 577, 581,

649, 685, 689, 796

Hodgins v. McNeil, 9 Grant 305, 309 (U. C.) 263, 288, 560

Holman v. Green, 6 S. C. R. 707 607, 608, 609, 616

Holmes v. Temple (1882) , 8 Que. L. R. 351 202

Hull Elec. V. Ottawa Elec. (1902), A. C. 237; 71 L. J.

P. C. 58 832

Hurdman v. Thompson, Que. L. R. 4 Q. B. 409 620

Huson V. S. Norwich (1895), 24 S. C. R. 160 586

Hydraulic Company's Case 744

Ibrahim v. R., 83 L. J. P. C. 185 161

Imp. Book Co. V. Black, 8 O. L. R. 9 ; 35 S. C. R. 488! ... .63, 254

Imp. Timber, etc., Co. v. Henderson (1909), 14 B. C. R. 216 . . 213
Indian Claims Case (1897), A. C. 199; 66 L. J. P. C. 11. .161,

353, 387, 591, 599, 630, 632
Indian Lands Case, 13 Ont. App. R. 165; 14 App. Cas. 46:

58 L. J. P. C. 54 357, 388, 394. 395, 603, 628, 629, 634

Indian Treaty Indemnity Case (Ontario v. Canada), 10 Ex. C.

R. 445; 42 S. C. R. 1 ; (1910), A. C. 637; 80 L. J.

p Q 22 391 395 637

Inglis v. Robertson (1898), A. C. 616: 67 L. J. P. C. 108 .. ' 305

Insurance Act, Re, 1910, 48 S. C. R. 290, 310. .454, 470, 474, 476,

487, 491, 831

Interest Case, 39 S. C. R. 14 599

International Book Co. v. Brown (1906), 13 O. L. R. 644 ... 668

International Bridge Co. v. Can. Southern Ry., 28 Grant 134. . 128

International Ferries, Re, 36 S. C. R. 206 631, 711

Iron Clay Brick Co., Re, 19 O. R. 119 809

Irving V. , 1 P. E. I. 38 53, 249

Jackson v. Campbell, 1 Thomp. 18 (2nd ed.) 278

Jacques Besset, Re, 6 Q. B. 481; 14 L. J. M. C. 17 . .141, 191, 195

James v. McLean, 3 Allen 164 283

James Bay Ry. v. Armstrong (1909), A. C. 624; 79 L. J.

P. C. 11 545

Japanese Gov't, v. P. & O., 64 L. J. P. C. 107 186

Jefferys v. Boosey (1855), 4 H. L. Cas. 815; 24 L. J. Ex.

81, 105 72, 103, 172, 187, 252

Jephson v. Riera, 3 Kn. P. C. 130 173

Jex V. McKinney, 14 App. Cas. 77 ; 58 L. J. P. C. 67 275

Johnson v. Can. North. Ry. Co., 19 Man. R. 179 81

Johnson v. Harris, 1 B. C. R. 93 812

Johnston v. O'Neill (1911), A. C. 552 ; 81 L. J. P. C. 17 699

Johnson v. Poyntz, 2 R. & G. 193 513, 812

Jones V. Can. Central Ry., 46 L. C. Q. B. 250 828

Jones V. Marshall (1880) , 20 N. B. R. 61 667

TABLE OF CASES CITED. XVll

PAGE

Jones V. Twohey, 1 Alta. L. R. 267 861

Judge V. " John Irwin " (1911) , 14 E. O. R. 20 237

Juillard v. Greenman, 110 U. S. R. 421 ; Story on the Const.

5th ed., vol. II. 153 499

Junction Ry. & Peterborough, Re, 45 U. C. Q. B. 317 743

Kaiser Wilhelm der Grosse (1907), 76 L. J. P. C. 138 240

Keefe v. McLennan, 2 Russ. & Ches. 5 791

Keefer v. Todd (1885) , 2 B. C. R. 249 523

Keewatin Power Co. v. Kenora, 13 O. L. R. 237; 16 O. L. R.

184 286, 287, 291, 700, 701, 705, 706

Kelly V. Jones, 2 Allen 473 (43 Eliz., c. 6) 282

Kennedy v. " The Surrey," 10 Ex. C. R. 29 709

Kennedy v. Toronto, 12 O. R. 201 621

Kennelly v. Dom. Coal Co., 36 N. S. R. 495 614

Kerley v. London, etc., Co. (1912), 26 O. L. R. 588; 28 O.

L. R. 606 385, 466, 507, 568, 582, 748, 750

Kielley v. Carson (1842), 4 Moo. P. C. 63, 88 37, 93

Kilbourn v. Thompson, 103 U. S. 168 38

Killam, Ex p. (1878), 14 C. L. J. N. S. 242; 34 N. B. R. 586

642, 806

King V. Alford (1885) , 9 Ont. R. 643 764

King V. Gardner, 25 N. S. R. 48 554

Kinney v. Dudman, 2 Russ. & Geld. 19 ; 2 Cart. 412 806

Krzus V. Crow's Nest Pass Coal Co. (1912), A. C. 590; 81

L. J. P. C. 227 80

Laidlaw v. Crow's Nest Ry. (1909), 14 B. C. R. 169; 42 S.

C. R. 169 291

Lake Simcoe Ice Co. v. McDonald, 29 Ont. R. 247; 26 O. A.

R. 411 ; 31 S. C. R. 130 608, 616, 710

Lake Winnipeg Transportation, etc., Co., Re (1891), 7 Man.

R. 243, 255 477, 710, 717, 732, 741

Lambe v. Manuel (1903), A. C. 68; 72 L. J. P. C. 17 655, 657

Lambe's Case (1887), 12 App. Cas. 575; 56 L. J. P. C. 87;

4 Cart. 7 156, 379, 422, 423, 427, 453, 472, 482, 490,

496, 499, 641, 642, 651, 653, 661, 685, 711, 800

Lamonde v. Lavergne, 3 Q. B. 303 66T

Lanier v. R. (1914) , 83 L. J. P. C. 116 164

Larsen v. Nelson & P. S. Ry. (1895), 4 B. C. R. 151 765

L'Ass'n. de St. J. B. v. Brault (1901), 30 S. C. R. 598; 31 S.

C. R. 172 528, 538, 563, 566, 568, 584

Lawless v. Chamberlain, 18 O. R. 309 288, 289, 560

Leach v. Money (1765) , 3 Burr. 1692 147

Leakim v. Leakim, 2 D. L. R. 278 ; 6 D. L. R. 875 561

Leamy v. R. (1915) , 15 Ex. C. R. 189 701

Lecours v. Hurtubise, 2 Can. Crim. Cas. 521 551, 552

Lee V. Bude, etc., Ry. Co. (1871), 40 L. J. C. P. 285 90

CAN. CON. — B.

Xviii TABLE OF CASES CITED.

PAGE

Lee V. Montigny, 15 Que. S. C. 607 666, 692

Lenoir v. Ritchie, 3 S. C. R. 575, 625 ; 1 Cart. 488 338, 373

Leprohon v. Ottawa, 40 U. G. Q. B. 490; 2 O. A. R. 522, 533,

534 • 1 Cart. 592 155, 398, 499, 641, 663

Le Syndicat Lyonnais v. McGrade (1905), 36 S. C. R. 251 .. 290

Leveille, Ex p. (1877), 2 Steph. Dig. 446 ; 2 Cart. 349 412

Levesque v. New Brunswick Ry. (1899), 29 N. B. R. 588 .... 757

License Commrs. v. Frontenac (1887), 14 Ont. R. 741 834

License Commrs. v. Prince Edward (1879), 26 Grant. 452 ... 834

Liquidator's Case (1892), A. C. 437 ; 61 L. J. P. C. 75

25 50. 93, 122, 124, 125. 304, 308, 349, 350, 359, 360, 361,

364, 370, 385, 520, 590, 601, 605, 631

Local Prohibition Case. 9 App. Cas. 117 ; 53 L. J. P. C. 1 577

Local Prohibition Case (1896), A. C. 343; 65 L. J. P. C. 26;
18 O. A. R. 586; 24 S. C. R. 247 ....366, 375, 383, 405,
423, 425, 431, 440, 449, 450, 451, 452, 467, 468, 469, 489,

493, 495, 496, 498, 529, 583, 646, 665, 685, 686, 689, 691, -

793, 795, 797, 831, 832, 834, 844

London v. Wood, 12 Mod. 687 51

London & Canadian Co. v. Warin, 14 S. C. R. 232 709

Longueuil Nav. Co. v. Montreal, 15 S. C. R. 566 666, 711

Lord's Day Legislation Case 549, 564, 565, 579, 581, 587

Lovitt V. R., 43 S. C. R. 125 658, 661, 662, 667

Lucas & McGlashan, Re, 27 U. C. Q. B. 81 563, 583

L'Union St. Jacques v. Belisle, L. R. 6 P. C. 31 ; 20 L. C. Jur.
39; 1 Cart. 63. . . .373, 376, 413, 477, 478, 500, 563, 714,

804, 813, 831

Lynch v. Can. N. W. Land Co., 19 S. C. R. 204 479, 490, 802

Lyons, Mayor of v. East India Co. (1837), 1 Moo. P. C. 175 . . 179

Mc.

McAlmon v. Pine, 2 Pug. 44 ; 2 Cart. 487 : . . . 812

McArthur v. Northern & P. J. Ry. (1890), 17 Ont. App. 86. . 757

Macbeth v. Haldimand, 1 T. R. 172 132

McCaffrey v. Ball, 34 L. C. Jur. 91 377

McClanaghan v. St. Ann's Mut. Bldg. Soc, 24 L. C. Jur.

162 ; 2 Cart. 237 809

McCuUoch V. Maryland (1819), 4 Wheat. 316, 421; Story on

the Const, 5th ed., vol. IL, 153 94, 401, 402, 499, 724

McDiarmid v. Hughes, 16 Ont. R. 570 738

McDonald v. McGuish (1883), 17 N. S. R. 1 ; 5 R. & G. 1. .541, 551

Macdonald v. R., 10 Ex. C. R. 394 620

Macdonald v. Riordan (1899), 8 Q. B. D. 555; 30 S. C. R. 619 756

McDonald v. Ronan, 7 R. & G. 25 279

McDougall V. Union Nav. Co., 21 L. C. Jur. 63 ; 2 Cart. 228. .710, 732

McDowell & Palmerston, Re (1892), 22 Ont. R. 563 358

McGowan v. H. B. Co., 5 Terr. L. R. 147 849

McGregor v. Esquimalt & N. Ry. (1907), A. C. 462; 76 L. J.

P. C. 85 358, 626

Mackell v. Ottawa Separate School Board (1914), 32 O. L.

R. 245 780

McKilligan v. Machar, 3 Man. R. 418 491, 562

TABLE OP OASES OITED. XIX

PAGE

Maclaren v. Atty.-Gen. of Que. (1914), A. C. 258; 83 L. J.

P. C. 201 292, 699, 705

Macleod v. Atty.-Gen. (N.S.W.) (1891), A. 0. 455; 60 L. J.

P. C. 55 85, 98, 111, 113, 115, 492

McLeod V. Noble (1897), 28 O. R. 528 524

McLeod Y. Vroom, Trueman's N. B. Eq. Cas. 131 812

McManamy v. Sherbrooke, Mont. L. R. 6 Q. B. 409 691

MacMillan v. S. W. Boom Co., 1 Pugs. & Burb. 715 ; 2 Cart.

542 697, 707, 741

McMulkin v. Traders Bank (1912), 26 Ont. L. R. 1 114

McNutt, Re (1912) , 47 S. C. R. 259, 283 546, '552, 582

Madden v. Nelson & F. S. Ry. (1899), A. C. 626; 68 L. J.

P. C. 148 487, 759

Maher v. Portland, 2 Cart. 486 783

Mallette v. Montreal, 24 L. C. Jur. 263 691

Man. Liquor Act Case (1902), A. C. 73 ; 71 K J. P. C. 28;

13 Man. R. 239 ; 33 Vict. c. 3 (Dom.) 376, 413, 434,

482, 489, 493, 577, 597, 647, 685, 689, 691, 693, 830, 831,

833, 851

Mann v. Owen, 9 B. & C. 595 582

Marais v. Officer Commanding (1902), A. C. 109; 71 L. J.

P. C. 42 775

Marbury v. Madison, 1 Cranch. 137 374

Marriage Laws, Re (1912), 46 S. C. R. 132, 217, 342; A. C.

880; 1 Ch. 55; 81 L. J. P. C. 73, 237.... 125, 173, 270,

283 284 479 557

Massey Mfg. ,Co., Re (1886), 13 Ont. App. R. 446 .'....!....' 114

Matthieu v. Wentworth (1895), Que. L. R. 4 Q. B. 343 835

Maulson v. Commercial Bank, 2 U. C. Q. B. 338 288

May V. May (1910) , 22 O. L. R. 559 289, 560

Meisner v. Fanning, 2 Thomp. 97 278

Menzies v. Farnon (1909) , 18 O. L. R. 174 561

Mercer v. Atty.-Gen. (Ont.), 5 S. C. R. 700 ; 8 App. Cas. 767;

52 L. J. P. C. 84 ; 3 Cart. 1 331, 359, 364, 393, 629, 630

Merchants Bank v. GiUespie, 10 S. C. R. 312 491, 809

Merchants Bank v. Smith, 8 S. C. R. 512 800

Merriman v. Williams (1882), 7 App. Cas. 484; 51 L. J.

P. C. 95 275

Metherell v. Coll. of Phys. (1892), 2 B. C. R. 189 60, 63, 265

Mette V. Mette (1859), 28 L. J. P. C. 117 174, 175, 179

Miller v. Lanty, 1 Thomp. 161 278

Miller v. Webber (1910) , 8 E. L. R. 460 615

Minnie M 214

Molsons V. Lambe, 15 S. C. R. 288-9 666

Monaghan v. Horn (1881) , 7 S. C. R. 409 235

Monk V. Ouimet (1874) , 19 L. C. Jur. 71 594

Monkhouse v. G. T. R., 8 O. A. R. 637 692, 761

Montreal v, Beauvais (1909), 42 S. C. R. 211 693, 832

Montreal v. Gordon, Coutlee's Supreme Ct. Cases 343 796

Montreal v. Montreal Street Ry. (1912) , A. C. 333 ; 81 L. J.

P. C. 145 439, 457, 475, 476, 498, 502, 687

XX TABLE OP OASES CITED.

PAGE

Montreal v. Riendeau (1887) , 31 L. C. Jur. 129 691

Montreal Street Ry. v. Montreal, 43 S. O. R. 197, 229 ... .375, 379
Montreal Tramways Co. v. Lachine, etc., Ry. Co. (1914), 50

S. C. R. 84 '^70

Moore v. Moore. 1 R. & G. 525 280

Morden v. South Dufferin, 6 Man. R. 515 490

Moses V. Parker (1896), A. C. 245; 65 L. J. P. C. 18.... 163, 164

Moulis V. Owen, 76 L. J. K. B. 406 87

Mousseau v. Bate (1883), 27 L. C. Jur. 153; 3 Cart. 341. .556, 592

Mowat V. Casgrain (1896) , R. J. S. 6 Q. B. 12 637

Mowat V. McPhee, 5 S. C. R. 66 245, 246

Munn V. McConnell, 2 P. E. I. 148 .- . 812

Munro & Downey, Re (1909) , 19 O. L. R. 249 516

Murdock v. Windsor & Ann. Ry. Co., Russ. Eq. R. 137 813

Mure V. Kaye (1811) , 4 Taunt. 34 190

Murne v. Morrison, 1 B. C. R. 120 802

Murphy, Re (1910) , 15 B. C. R. 401 "681

Murray v. Scott 720

Musgrave v. Pulido, L. R. 5 App. Cas. 102; 49 L. J. P. C.

20 131, 132, 133, 145, 363

Musgrove v. Chun Teeong Toy (1891), A. C. 272; 60 L. J.

P. C. 28 107, 145, 192, 362, 363

Musgrove's Case, 5 Cart. 578; 11 Vic. L. R. 379; 14 Vic. L.

R. 349 12, 838, 843

N. B. Penitentiary, Re, Coutlee's Supreme Ct. Cas. 24 568

Nakane, Re (1908), 13 B. C. R. 370, 376. . . .143, 193, 402, 474, 681
Narain Singh (1908), 13 B. C. R. 477; 18 B. C. R. 506... 681, 836

Nash V. Newton, 30 N. B. R. 610 615

Natal, Re, Lord Bishop of (1864-5), 11 Jur. N. S. 353; 3

Moo. P. C. (N. S.) 115, 148 17, 30, 157, 275, 322

Neo V. Neo, L. R. 6 P. C. 382 275

New Zealand Loan Co. v. Morrison (1898), A. C. 349; 67 L. J.

P. C. 10 250

Niboyet v. Niboyet (1879), L. R. 4 P. D. 20 ; 48 L. J. P. C. 1. . 89

Nicholson v. Baird, N. B. Eq. Cas. (Trueman) 195 249

Nickle V. Douglas, 37 U. C. Q. B. 62 663

Nolan V. McAdam (1906) , 39 N. S. R. 380 279

Normand v. St. Lawrence Nav. Co., 5 Que. L. R. 215 ; 2 Cart.

231 710

"North," The Ship v. R. (1906), 11 Ex. C. R. 141; 11 B.

C. R. 473 ; 37 S. C. R. 385 108

North Perth, Re, 21 O. R. 538 522, 523, 524, 817

Northern Counties v. Can. Pac. Ry. (1907), 13 B. C. R. 130. . 757

O'Connor v. Kennedy, 15 O. R. 22 288

Oliver v. Bentick, 3 Taunt. 456 132, 133

Ont. Mining Co. v. Seybold (1903), A. C. 73; 72 L. J. P. C.

5 ; 31 O. R. 386 331, 387, 388, 392, 394, 602, 636

Oriental Bank, Re (1885), 28 Chy. D. 643; 54 L. J. Ch. 327,

330 14, 99, 126

TABLE OF CASES CITED. XXI

PAGE

Orr Ewing v. Colquhoun, 2 App. Cas. 839 698, 700

Osier V. Colthart, 7 Terr. L. R. 99 «44

Ouimet v. Bazan (1912), 46 S. C. R. 502. . . .488, 565, 579, 584, 587
Owen, Ex p., 4 P. & B. 487 641

P. V. S., L. R. 1 P. & D. 559 ; 37 L. J. P. & Mat. 80 558

Pacquet' v. Lavoie, 7 Que. Q. B. 277 588

Page V. Griffith, 17 L. C. Jur. 302 551

Paige V. Griffitti. 18 L. C. Jur. 119 ; 2 Cart. 324 554

Palmer v. Hutchinson, 6 App. Cas. 619 ; 50 L. J. P. C. 62. . . . 132
Papin, Ex p., 15 L. C. Jur. 334; 2 Cart. 320; 16 L. 0. Jur.

319; 2 Cart. 322 554

Pardoning Power Case, 23 S. C. R. 458 ; 19 O. A. R. 31, 38,

39 ; 20 O. R. 222 ; 5 Cart. 517 14, 49, 117, 150, 153,

335, 360, 361, 554, 843, 846

Parent v. Trudel, 13 Q. L. R. 139 589, 812

Parson's Case, 4 S. C. R. 307, 330 ; 7 App. Cas. 96 ; 51 L. J.

P. C. 11.. 283, 355, 374. 412, 413, 419, 422, 423, 424, 426,

431, 432, 451, 456, 458, 466, 478, 480, 481, 482, 483, 566,

683, 686, 688, 690, 728, 735, 737, 740, 744, 755, 814, 817,

819, 822

Payson v. Hubert (1903) , 44 S. C. R. 400 38

Peak V. Shields, 8 S. C. R. 579; 6 O. A. R. 639; 31 U. C.

C. P. 112 114, 589, 806

Perkins, Ex p., 24 N. B. R. 66 515, 534

Perry v. Clergue (1903), 5 O. L. R. 357 121, 616, 631, 711

Peto V. Welland Ry. (1862) , 9 Grant 455 763

Phair v. Venning, 22 N. B. R. 371 498

Pharm. Ass'n. v. Livernois (1900) , 31 S. C. R. 43 691

Phillips V. Eyre (1870), L. R. 4 Q. B. 225, 241; 6 Q. B. 1,

20 ; 40 L. J. Q. B. 28. . . .15, 16, 32, 56, 57, 58, 93, 99, 132,

260, 349, 358

Piekels v. R., 14 Ex. C. R. 379 616, 619

Picton, The (1879), 4 S. C. R. 648 235, 238, 522, 529, 711

Pigeon V. Recorders' Court, 17 S. C. R. 495 691

Pillow, Ex p., 27 L. C. Jur. 216 ; 3 Cart. 357 691, 831

Pillow V. Montreal, Mont. L. R. 1 Q. B. 401 490, 691

Pineo V. Gabaza, 6 R. & G. 489 537

Pisani v. Lawson (1839) , 9 L. J. C. P. 12 187

Plant, Re, 37 N. B. R. 500 589

Plummer Wagon Co. v. Wilson, 3 Man. R. 68 665

Poole V. Victoria. 2 B. C. R. 271 692

Pope V. Griffith, 16 L. C. Jur. 169 551

Portage Extension of Red R. Ry., Re, CassePs Sup. Ct. Dig.

487 368, 766

Porter, Ex p. (1889) , 28 N. B. R. 587 515, 534

Porter v. Heminger, 6 Ex C. R. 210, 211 222

Powell V. Appollo Candle Co. (1885), 10 App. Cas. 282; 54

L. J. P. C. 7 92, 93, 349

Precious Metals Case (14 App. Cas. 295; 58 L. J. P. C. 88;

4 Cart. 241 364, 395, 624, 625, 631

Proclamations, Re, 12 Co. Rep. 74 9

Xxii ' TABLE OF OASES OITED.

PAGE

Prohibition Liquor Laws, Re, 24 S. C. R. 258 468, 474, 506

Provincial Companies, Re (1913), 48 S. C. R. 331, 378-9.. 368, 648
Prowd V. Spence (1913) , 10 D. L. R. 215 561

Q. C. Case (1898), A. C. 247; 67 L. J. P. C. 17; 23 Ont. App.

R. 792 117, 360, 361

Quebec v. Leacraf t, 7 Que. L. R. 46 646

Quebec v. R. (1886), 2 Ex. C. R. 450 646

Quebec Bank v. Tozer, 17 Que. S. C. 303 589, 812

Queddy River Boom Co. v. Davidson (1883), 10 S. C. R. 222

706, 710, 741
Queen v. Burah, L. R. 3 App. Cas. 889; 3 Cart. 409. .93, 353,

355, 357, 373

Quimet v. Bazin (1912) , 46 S. C. R. 502 "384

Quirt V. R., 19 S. C. R. 510 414, 646, 801, 806

Quong Wing v. R. (1914), 49 S. C. R. 440. 444-5 459,
462 ....184, 358, 461, 487, 549, 577, 580, 672, 678, 692,

822, 823, 832, 833

R. v. Ah Pow, 1 B. C. R. 147 296

R. V. " Ainoko " (1894), 4 E. C. R. 195 ; 5 E. C. R. 366 269

R. V. Annie Allen, 5 Ex. C. R. 144 532

R. V. Aloo Paroo, 5 Moo. P. C. 296 164

R. V. Alwes, 8 L. J. Ex. 229 : 194

R. V. Amer, 42 U. C. Q. B. 391 121, 841

R. V. Anderson, L. R. 1 C. C. R. 161 91

R. V. Arnaud (1846) , 16 L. J. Q. B. 50 ; 9 Q. B. 806 213

R. V. " Aurora " (1896) , 5 E. C. R. 372 269

R. V. Bank of N. S., 11 S. C. R. 1, 19 ; 4 Cart. 391. .12, 122,

125, 364

R. V. Batchelor, 1 Perry & Dav. 516 194

R. V. " Beatrice " (1896), 5 E. C. R. 9, 160, 378 269

R. V. Becker, 20 Ont. R. 676 553

R. V. Bell, 15 U. C. Q. B. 287 288

R. V. Bennett (1882), 1 O. R. 445 (Q. B.) 515, 534

R. V. Bigelow, 41 N. S. R. 499 690

R. V. Bittle, 21 O. R. 605 551, 552, 553

R. V. Blane (1849) , 18 L. J. M. C. 216 71

R. V. Boardman, 30 U. C. R. 556 481, 553, 583

R. V. Boscowitz, 4 B. C. R. 132 646, 691

R. V. Bowell, 4 B. C. R. 498 641

R. V. Bradshaw, 38 U. C. Q. B. 564 518

R. V. Brierly (1887) , 14 Ont. R. 525, 534 113, 260

R. V. Brinkley (1907) , 14 Ont. L. R. 435 Ill, 596

R. V. Brown (1907), 41 N. S. R. 293 534

R. V. Burah, L. R. 3 App. Cas. 889 ; 3 Cart. 409 34, 157, 349

R. V. Burden, 1 Old. 126 279

R. V. Bush (1888), 15 O. R. 398 (Q. B.) 511, 515, 534

R. V. Carlisle (1903) , 6 O. L. R. 718 351, 517

R. V. " Carlotta G. Cox '» (1908), 11 E. 0. R. 312 269

TABLE OF OASES CITED. XXlll

PAGE

R. V. Carr, L. R. 10 Q. B. D. 76 91

R. V. Carroll (1909) , 14 B. C. R. 116 543

R. V. Chandler, 1 Hannay (N. B.) 556, 558; 2 Cart. 421,

437 155, 811

R. V. Coll. of Phys. (1879), 44 U. C. Q. B. 564; 1 Cart.

761 53, 60, 62, 265

R. V. Coote (1873), L. R. 4 P. C. 599; 42 L. J. P. C. 45. .513, 514

R. V. Cotton (1912), 45 S. C. R. 469 76

R. V. Cox (1898), 31 N. S. R. 311 518, 519

R. V. Crewe (1910), 2 K. B. 576; 79 L. J. K. B. 874, 888,

895 34, 65, 92, 168, 358

R. V. Dc Coste (1888), 21 N. S. R. 216 542, 551

R. V. Demers, 22 S. C. R. 482 626

R, V. Eduljee Byramjee (1846), 5 Moo. P. C. 276 157, 164

R. V. Eli, 13 Ont. App. R. 526 540, 551

R. V. Eyre, L. R. 3 Q. B. 487 ; 37 L. J. M. C. 159 132

R. V. Farwell, 14 S. C. R. 392 ; 22 S. C. R. 553 537, 625

R. V. Fisher (1891) , 2 Ex. C. R. 365 706, 709

R. V. E'rawley, 7 O. A. R. 246 554

R. V. Frederickton (1879) , 3 P. & B. 160 568

R. V. Garvin, 13 B. C. R. 331 ; 14 B. C. R. 260 690, 776, 835

R. V. Gold Comm. of Victoria, 1 B. C. R. 260 401, 672

R. V. Halifax Tram. Co., 30 N. S. R. 469 574, 575, 586

R. V. Halliday, 21 O. A. R. 42 666

R. V. Hannam (1886) , Times L. R. 234 610

R. V. Hart, 20 Ont. R. 611 553

R. V. Hill (1907). 15 O. L. R. 406 209, 461, 680, 775

R. V. Horner (1876) , 2 Steph. Dig. 450 ; 2 Cart. 317 514

R. V. Horning (1904) , 8 O. L. R. 9, 215 578, 776

R. V. Howe, 2 B. C. R. 36 691

R. V. Jameson (1896), L. R. 2 Q. B. 425; 65 L. J. M. C.

218 82, 210, 274

R. V. Joykissen Mookerjee (1863), 1 Moo. P. C. (N. S.) 273. 164

R. V. Justices of Kings, 2 Pugs. 535 791

R. V. Kay, 39 N. B. R. 278 801, 832

R. V. Keefe, 1 N. W. T. Rep. 88 ; 1 Terr. L. R. 282 574

R. V. Kennedy, 35 N. S. R. 266 534

R. V. Keyn (1876), L. R. 2 Ex. D. 63, 152; 46 L. J. M. C.

17, 86 79, 90, 91, 109, 231, 233, 234, 243, 246

R. V. Kimberley, 2 Stra. 848 191

R. V. Laity, 18 B. C. R. 443 384

R. V. Lake, 43 U. C. Q. B. 515 551

R. V. Lawrence, 44 U. C. Q. B. 164 583

R. V. Le Bell (1910) , 39 N. B. R. 469 522. 534

R. V. Lee (1911) , 23 O. L. R. 490 569

R. V. Levinger, 22 O. R. 690 511, 518, 528

R. V. Lovitt (1912), A. C. 212: 81 L. J. P. C. 40, 140 .. 656, 659, 826

R. V. Lundy, 2 Bent. 314 191

R. V. McAuley, 14 Ont. R. 643 541

R. V. McFadden, 6 R. & G. 426 279

R. V. McGregor, 4 O. L. R. 198 567, 832, 835

R. V. McLeod, 4 Terr. L. R. 513 551

R. V. McMillan, 2 Pugs. 112 490

R. V. Malloy (1900) , 4 Can. Cr. Cas. 116 519

Xxiv TABLE OF OASES CITED.

PAGE

R. V. Marais (1902), A. 0. 51 ; 71 L. J. P. C. 32 57, 58

R. V. Martin (1904), 36 N. B. 448 216

R. V. " E. B. Marvin " (1895) , 4 E. C. R. 453 269

R. V. Mee Wah, 3 B. C. R. 403 666, 672, 692

R. V. Meiklejohn (1905) , 11 Ont. L. R. 366 110

R. V. Mercer, 17 U. C. Q. B. 602 249

R. V. Miller (1909) , 19 O. L. R. 288 551, 552

R. V. " Minnie " (1894) , 4 E. C. R. 151 269

R. V. Mohr, 7 Que. L. R. 187 474

R. V. Moodie, 20 U. C. Q. B. 389 249

R. V. Moss, 26 S. C. R. 322 710

R. V. Mount, L. R. 6 P. C. 283 ; 44 L. J. P. C. 58 64, 101

R. V. McNutt (1912) , 47 S. C. R. 265-6 580

R. V. Nan-e-quis-a Ke, 1 Terr. L. R. 211 293

R. V. Neiderstadt, 11 B. C. R. 347 641, 666

R. V. O'Dea (1899) , 3 Can. Crim. Cas. 402 216

R. V. O'Rourke, 32 U. C. C. P. 388; 1 Ont. R. 465 381, 518

R. V. •' Oscar & Hattie " (1892) , 3 E. C. R. 241 269

R. V. '• Otto " (1898) , 6 E. C. R. 188 269

R. V. Pattee, 5 Ont. Pract. R. 292 556, 591

R. V. Pierce (1904) , 9 O. L. R. 374 578

R. V. Plante, 7 Man. R. 537 381, 518

R. V. Plowman (1894) , 25 Ont. R. 656 112

R. V. Porter, 20 N. S. R 279

R. V. Prittie, 42 U. C. Q. B. 612 551

R. V. Provost, 29 L. C. Jur. 253 381, 518

R. V. Reno (1868) , 4 P. R. (Ont.) 281 515

R. V. Robertson, 6 S. C. R. 52, 66: 3 Man. R. 613. .474, 477,

551, 568, 585, 646, 691, 713, 822, 823, 831

R. V. Roblin, 21 U. C. Q. B. 355 288

R. V. Roddy, 41 U. C. Q. B. 291 553, 563, 583

R. V. Ronan, 23 N. S. 433 490, 551

R. V. Rowe, 12 Can. Law Times 95 553

R. V. Russell (1901), 70 L. J. K. B. 998 86, 102, 111, 169

R. V. Schram (1864) , 14 U. C. C. P. 318 62, 210

R. V. Seeker, 14 U. C. Q. B. 604 288

R. V. " Selby " (1895) , 5 E. C. R. 1 269

R. V. Severn, 2 S. C. R. 106, 110 481

R. V. Sharp, 5 Ont. Pract. R. 135 110, 238, 247

R. V. Shaw, 7 Man. R. 518 ; 5 M. & S. 403 133, 568, 584, 585

R. V. Sherman, 17 U. C. C. P. 167 61

R. V. Slavin, 17 U. C. C. P. 205 61

R. V. Stone (1892), 23 O. R. 46. .488, 567, 568, 569, 571, 776, 835

R. V. Sweeney (1912) , 45 N. S. R. 494 516

R. V. Tano (1909) , 14 B. C. R. 200 245

R. V. Taylor, 36 U. C. Q. B. 220 62, 467, 482, 664, 692

R. V. Toland, 22 O. R. 505 518

R. V. Tubbee (1856) , 1 U. C. Pract. Rep. 98 195

R. V. Tweedie, 15 Ex. C. R. 177 390

R. V. The Valiant, 19 B. C. R. 521 712

R. V. A^ictoria, 1 B. C. R. 331 672

R. V. " Viva '» (1896) , 5 E. C. R. 360 269

R. V. Walden (1913), 19 B. C. R. 539 384, 795

R. V. Walkem (1908) , 14 B. C. R. 1 84

TABLE OF CASES CITED. XXV

PAGE

R. V. Walsh, 5 O. L. R. 527 517

R. V. Walton (1906) , 12 O. L. R. 1 519

R. V. Wason, 17 O. A. R. 221, 236; 17 O. R. 58.... 474, 484,

488, 490, 492, 551, 552, 554, 563, 566, 567, 568, 572, 574,

575, 583, 776, 822, 823

R. V. Wellington, 17 O. A. R. 421 646, 801

R. V. Wilson 1877), 3 Q. B. D. 42 ; 48 L. J. M. C. 37 141

R. V. Wing Chong, 1 B. C. R. 150 672

R. V. Wipper (1901) , 34 N. S. R. 202 534

R. V. Wixon, 8 L. J. Q. B. 129 194

R. V. Wolfe (1886), 19 N. S. R. 24 ; 7 R. & G. 24 542, 551

R. ex rel. Brown v. Simpson Co., 28 O. R. 231 551, 552

R. ex rel. Gibb v. White, 5 Ont. Prac. R. 315 680

R. ex rel. McGuire v. Birkett (1891), 21 O. R. 162 517, 795

Rahim, Re (1911) , 16 B. C. R. 471 681

Rajah of Tanjore's Case, 13 Moo. P. C. 22 146

Redtield v. Wickham, 13 App. Cas. 467 ; 57 L. J. P. C. 94 . . . 763

Redpath v. Allen, L. R. 4 P. C. 511 ; 42 L. J. Adm. 8 260

Reference Case (1910), 43 S. C. R. 569, 575, 593; (1912),

A. C. 571 ; 81 L. J. P. C. 210 35, 107, 158, 344, 351,

354, 358, 365, 369, 415, 422, 440. 453. 454, 457, 473, 479,

505, 528, 529, 535, ^95, 662
Regina Public School District v. Gratton Separate School

District, 6 W. W. R. 1088; 7 W. W. R. 7 ; 50 S. C. R.

589 779, 786

Reid V. Auld, 32 O. L. R. 68 561

Renaud, Ex p., 1 Pug. (N. B.) 273; 2 Cart. 445. . .53, 60, 490, 783
Representation, Re (1905), A. C. 37; 74 L. J. P. C. 9 ; 33 S.

C. R. 475 44

Reuss, Princess of v. Bos, L. R. 5 H. L. 176 ; 40 L. J. Ch. 655 722

Reynolds v. Vaughan, 1 B. C. R. 3 273

Richardson v. Ranson (1886), 10 Ont. R. 387 515, 523

Richelieu Nav. Co. v. The "Cape Breton" (1907), A. C. 112;

76 L. J. P. C. 14 241

Ridsdale & Brush, Re 779

Riel V. R. (1885), 10 App. Cas. 675; 55 L. J. P. C. 28;

4 Cart. 1 35, 92, 93, 349, 355

Ritchie, Ex p., 2 Kerr. 75 282

Robinson Treaties' Case 632, 634

Robtelmes v. Brenan (1906), 4 Comm. L. R. 395 191, 677

Rochester Coal Co. v. "Garden City" (1901), 7 Ex. C.

R. 34 236, 237

R. C. Sep. Schools, Re, 18 O. R. 606 781

Ross V. Can. Agric. Ins. Co., 5 Leg, News 23 377

Ross V. Guilbault, 4 Leg. News (Mont.) 415 377

Ross V. Torrance, 2 Leg. News (Mont.) 186; 2 Cart. 352 802

Rosseter v. Calhman (1853) , 22 L. J. Ex. 128 85

Routledge v. Low, L. R. 3 E. & I. App. 113; 37 L. J. Ch.

454 52, 69, 72, 187, 251

Rowlands v. Can. Southern Ry 761

Royal Bank v. R. (1913), 4 Alta. L. R. 929; A. C. 283; 82

L. J. P. C. 33 626, 823

Royal Canadian Ins. Co. v. Montreal Warehousing Co., 3 Leg.

News (Mont.) 155; 2 Cart. 361 804

XXVi TABLE OF OASES OITED.

PAGE

Russell V. Cambefort (1889), 58 L. J. Q. B. 498 87

Russell V. R. (1882), 7 App. Gas. 829; 51 L. J. P. C. 77;
2 Cart. 12.... 351, 375, 422, 423, 426, 431, 453, 467, 485,

488, 574, 576, 684, 820

St. Oath. Milling Co. v. R. (1887), 13 S. C. R. 606; 14 App.

Cas. 46; 58 L. J. P. C. 54, 59.... 347, 364, 367, 387, 388,

393, 602, 630, 634, 635

St. John Gas Light Co. v. R., 4 Ex. C. R. 326 610

St. Joseph V. Que. Cent. Ry., 11 O. L. R. 193 749, 757

S. V. S. (1877), 1 B. C. R. 25 296, 544

Samson v. R., 2 Ex. C. R. 30 619

Sanderson v. Heap (1909) , 19 Man. R. 122 680

Santos V. lUidge (1860), 8 C. B. N. S. 869; 29 L. J. 0. P. 348 90

Saxonia, The (1862) , 31 L. J. Adm. 201 (P. C.) - 78

School Fund (Constructive Receipt) Case (1910), A. C. 627;

80 L. J. P. C. 35 600

School Fund (Uncollected Sums) Case (1903), A. C. 39; 72

L. J. P. C. 9 600

Schultz V. Winnipeg, 6 Man. R. 35 802

Scotland, etc.. Mortgage Co., Re North of, 31 U. C. C. P. 552 667

Scott V. Henderson, 2 Thomp. 115 278, 280

Scott V. Scott, 4 B. C. R. 316 296, 491, 545

Seman Appu v. Queen's Adv., 9 App. Cas. 571; 53 L. J.

P C 72 289

Severn v.R. (1878), 2 S. C. R. 70, 81, 103 357, 364,' 491,

666, 686, 792

Shea V. Choat (1845) , 2 U. C. Q. B. 211 286, 287

Sheppard v. Sheppard (1908) , 13 B. C. R. 519 545

Shey V. Chisholm, James, 52 280

Shipman v. Phin, 32 O. L. R. 329 537

Shoolhred v. Clark, 17 S. C. R. 265 741, 809

Short V. Fed. Brand Co., 6 B. C. 385, 436 555

Simmons & Dalton, Re, 12 O. R. 505 523

Sinclair v. Mulligan, 3 Man. R. 481 ; 5 Man. R. 17 293,

294 295 296

Slavin v. Orillia, 36 U. C. Q. B. 159 ...*.....' 791

Small Debts Courts, Re, 5 B. C. R. 246 511, 517

Smiles v. Belford (1876), 1 Ont. App. 436; 23 Grant. 590;

1 Cart. 576 53, 59, 60, 62, 63, 254, 556

Smith, Ex p., 16 L. C. Jur. 140 ; 2 Cart. 330 262, 534

Smith V. London, 20 Ont. L. R. 133 88, 693, 796, 832

Smyth V. McDonald, 1 Old. 274 278

Smith V. Merchants Bank, 8 S. C. R. 512 467, 692

Smith V. Meth. Church, 16 O. R. 199 287

Smith V. Vermillion Hills (1914), 49 S. C. R. 563 645

Smylie v. R., 27 Ont. App. R. 172 ; 31 Ont. R. 202. . . .482, 646, 693

Speaker v. Glass, L. R. 3 P. C. 560 ; 40 L. J. P. C. 17 - 37

Special Reserves Case (1903), A. C. i73; 72 L. J. P. C. 5;

32 S. C. R. 1 ; 31 Ont. R. 386 636

Sproule, Re, 12 S. C. R. '140 530

Squier, Re, 46 U. C. Q. B. 474 521

Stark V. Schuster (1904) , 14 Man. R. '672 832

TABLE OF CASES CITED. XXVll

PAGE

Stepney Election, Re (1886), 55 L. J. Q. B. 331 170

Stephens v. McArthur, 6 Man. R. 508 491

Sevens v. Olson (1904) , 6 Terr. L. R. 106 259

Stinson'& Coll. of Physicians, Re (Ont.), 22 O. L. R. 627.. 584

Stinson v. Pennock, 14 Grant. 604 291

Stuart V. Bowman, 2 L. C. R 16

Sturmer & Beaverton, Re, 24 O. L.'R. 65 617, 627, 707

Suite V. Three Rivers, 5 Leg. News 830 791

Sunday Legislation, Re, 35 S. C. R. 581 579

Sussex Peerage Case (1844) , 11 Ch. & F. 146 263

Sutherland v. Can. North. Ry. (1911), '21 Man. R. 27 758

Sutton's Hospital Case (1613), 10 Coke Rep. la, 30b 718

Swift V. Atty.-Gen. (Ireland) (1912), A. 'C. 276; 81 L. J.

P. C. 158 114

Sword V. Sidney Coal Co., 23 N. S. R. 214; 21 S. C. R. 152. . 613

Syndicat Lyonnais v. McGrade (1905), 36 S. C. R. 251 294

T. V. B., 15 O. L. R. 224 560

Tai Sing v. Maguire, 1 B. C. R. 101, 107 63, 490, 672

Tait, Re, 9 Man. R. 617 296

Tarratt v. Sawyer, 1 Thomp. 46 (2nd ed.) 280

Tarte v. Beique, 6 Mont. L. R. 289 553

Taxation, Comrs. of (N.S.W.) v. Palmer (1906), 76 L. J. P.

C. 41 126

Te Teira v. Te Roera Tareha (1902), A. C. 56; 71 L. J.

P. C. 11 638

Templeton v. Stewart, 9 Man. R. 487 295

Tennant v. Union Bank (1894), A. C. 31; 63 L. J. P. 'C.

25.... 418, 428, 438, 467, 468, 498, 555, 556, 692, * 745, 800, 820
Theberge v. Landry, 2 App. Cas. 102, 109 ; 46 L. J. P. C. 1, 4,

2 Cart. 1 .155, 163, 164, 373, 524

Thompson v. Advocate General, 12 CI. & F. 1 76

Thomson v. Wishart (1910), 19 Man. R. 340 296, 585

Thrasher Case, 1 B. C. R. 170, 183 .474, 481

Three Rivers v. Major, 8 O. L. R. 181 692

Three Rivers v. Suite, 5 Leg. News, 332 ; 2 Cart. 283 491

Through Traffic Case (1912), A. C. 331 ; 81 L. J. P. C. 145;

43 S. C. R. 197 ... .375, 378, 396, 439, 457, 476, 498, 502,

743, 747, 754, 768, 770, 810

Tiderington (1912) , 17 B. C. R. 81 543

Tobin V. R. (1864), 33 L. J. C. P. 199 129, 147

Tomalin v. Pearson (1909), 2 K. B. 61 ; 78 L. J. K. B. 863. .80, 232
Tomey Homma's Case (1903), A. C. 151; 72 L. J. P. C.

23 .174, 184, 357, 358, 461, 486, 673, '674, 675

Topay V. Crow's Nest Coal Co. (1914), 29 W. L. R. 555 ... 187
Toronto v. Bell Telephone Co. (1905), A. C. 52; 74 L. J.

P. C. 22 498, 746, 747, 748, 757

Toronto v. Can. Pac. Ry. (1908), A. C. 54; 77 L. J. P. C.

29 438, 498, 752, 753, 796

Toronto v. Grand Trunk Ry. (1906), 37 S. C. R. 232,

257 753, 792, 797

XXViii TABLE OF DASES CITED.

PAGE

Toronto Harbour Commrs., Re, 28 Grant 195 620

Trustees of R. C. Sep. School v. Arthur, 21 O. R. 60 781

TuUy V. Principal Officers of H. M. Ordnance, 5 U. C. Q. B. 6 128

Uuiacke v. Dickson, James, 287 276, 278

Union Bank v. Neville, 21 O. R. 152 806

Union Colliery Co. v. Atty.-Gen. of B. C, 27 S. 0. R. 637 . . . . 597
Union Colliery Co. v. Bryden (1899), A. C. 580; 68 L. J. P.

C. 118 184, 436, 453, 485, 486, 672

United States v. Fisher (1804), 2 Cranch. 358 401, 499

U. S. V. Schooner " Peggy," 1 Cranch 103 136, 138

Valin V. Langlois, 3 S. C. R. 1, 22 ; 5 Q. L. R. 16; 5 App. Cas.

115 ; 49 L. J. P. C. 37 : 1 Cart. 158 41, 335, 373, 404,

416, 453, 491, 511, 517, 524, 525, 533, 534. 536

Vancini, Re (1904) , 34 S. C. R. 621 531. 534

Vancouver v. Can. Pac. Ry., 23 S. C. R. 1 618

Vancouver City Collector of Votes v. Tomey Homma 673

Vancouver Harbour Case, 11 B. C. R. 289 608, 612, 615, 618

Vancouver Street Ends Case ; 389

Varesick v. B. C. Copper Co., 12 B. C. R. 286 81

Virgo's Case (1896) , A. C. 88 : 65 L. J. P. C. 4 685

Voluntary Assignments Case (1894), A. C. 189; 63 L. J. P.

C. 59 430, 438, 477, 478, 494, 501, 589, 745, 806, 809, 823

Waldie V. Fullum (1909), 12 Ex. 0. R. 325 224, 229

Walker v. Baird (1892), A. C. 491; 61 L. J. P. C. 92. .8, 139, 147

Wall V. MacNamara, 1 T. R. 536 132

Wallace v. Atty.-Gen. (1866) , 35 L. J. Ch. 124 76

Wallace-Heustis Grey Stone Co., Re, Russ. Eq. Rep. N. B.

461; 3 Cart. 374 809

Ward v. Reid, 22 N. B. R. 279 587

Ward & Victoria, Re, 1 B. C. R. 114 296

Washington v. Grand Trunk Ry., 24 Ont. App. 183 761

Water Rights Case 389

Watson's Case, Leonard, ^ A. & E. 731 194

Watt V. Watt (1908), 13 B. C. R. 281; A. C. 573; 77 L. J.

P. C. 121 297, 544

Webb V. Outrim (1907), A. C. 76; L. J. P. C. 25 95, 163,

349, 374, 402, 642

Weiler v. Richards (1890), 26 C. L. J. 338 666, 691

Wenlock V. River Dee Co., 10 App. Cas. 362 ; 36 Chy. D. 674 ;

54 L. J. P. C. 581 718, 719

Western Counties Ry. v. Windsor, etc., Ry., 7 App. Cas. 178;

5^1 L. J. P. C. 43 ; 2 Rus. & Geld. 280 621

Wetherell & Jones, Re, 4 Ont. R. 713 262, 534

Whalen, Ex p. (1891), 30 N. B. R. 586 834

Wheeloek v. McKeown, 1 Thomp. 41 (2nd ed.) 278

TABLE OF CASES CITED. XXIX

PAGE

Wheelock v. Morrison, 1 N. S. D. 337 280

Whicker v. Hume, 7 H. L. Cas. 124 : 28 L. J. Chy. 396 ... . 275

Whitby V. Lipscombe, 23 Grant 1 ; 287, 289

"Whitney, The D. C," 38 S. C. R. 303; 10 Ex. C. R. 1 . . .79, 240

Whittier v. Diblee, 2 Pugs. 243 588

Wilcox V. Wilcox, 8 L. C. R. 34 283

Wild Ranger, The (1862) , 32 L. J. Adm. 49 78, 88

Wilkes V. Wood (1763), Lofft. 1 147

VVilkins v. Despard, 5 T. R. 112 132

milett V. De Grosbois, 2 Cart. 332 ; 17 L. C. Jur. 293 40

Williams v. Howarth (1905), A. C. 551; 74 L. J. P. C. 115.. 12

Williamson, Ex p. (1884), 24 N. B. R. 64 515, 534

Wilson V. Codyre (1886) , 26 N. B. R. 516 588

Wilson V. Jones, 1 Allen 658 283

Wilson V. McGuire (1883) , 2 Ont. R. 118 515, 534

Wi Matua's Will, Re, 78 L. J. P. C. 18 160, 161, 164

Windsor & Annapolis Ry., Re, 4 R. & G. 322 ; 3 Cart. 399. .772,

813, 828

Windsor v. Commercial Bank, 3 Russ. & Geld. 420 800

Winnipeg v. Barrett (1892), A. C. 445 ; 61 L. J. P. C. 58 ... 779
Wixon V. Thomas (1912), 1 K. B. 690 ; 80 L. J. K. B. 686. ... 643

Wood V. Esson, 9 S. C. R. 239 708

Woodruff V. Atty.-Gen. of Ont. (1908), A. C. 508; 78 L. J.

P. C. 10 663

Worms, Ex. p. (1876) , 22 L. C. Jur. 109 195

Wright, Ex p., 34 N. B. R. 127 534

Wyatt V. Atty.-Gen. of Que. (1911), A. C. 489; 81 L. J. P.

C. 63 699

Wyatt V. Gore, Holt N. P. 299 132

Wyman v. " Duart Castle " (1899) , 6 E. C. R. 387 237

Yorkshire Guarantee Corp., Re (1895), 4 B. C. R. 258 667

Young V. Harnish, 37 N. S. R. 213 613, 615

Zollverein, The, 2 Jur. N. S. 429 88, 89

THE LAW

OF THE

CANADIAN CONSTITUTION

PART I

IMPERIAL LIMITATIONS

THE

LAW OF THE CANADIAN CONSTITUTION

Part I — Imperial Limitations.

CHAPTER I.

Outline Sketch.

The Colonial Status : Consequent Limitations : —
In the study of the Canadian Constitution the first
fact which challenges attention is that the Domin-
ion of Canada is a British colony; possessed, it is
true, of large powers of self-government, but hold-
ing those powers under a statute passed by the
Parliament of the United Kingdom of Great Britain
and Ireland. This statute is '^ The British Horth
America Act, 1867, '^ under which Canada (as it
stood under the Union Act, 1840), Nova Scotia and
New Brunswick were federally united into one
Dominion under the Crown of the United Kingdom.
It was no part of the scheme of Confederation to
alter in any essential respect the colonial relation-
ship or to weaken the Crown ^s headship; and there
is nothing in the Act to indicate a surrender in any
degree by the British Parliament of that cardinal
principle of the Constitution, the supreme legisla-
tive authority of the British Parliament over and
throughout the British Empire. Our colonial posi-
tion suggests at once two lines of limitation upon
Canada's powers of self-government: First, that she
cannot legislate as to the Imperial Constitution;
and, secondly, that she has no power to change the

CAN. CON. — 1

2 CANADIAN constitution: IMPERIAL LIMITATIONS.

essential framework of her own as provided in the
British North America Act, unless, indeed, power
to that end is conveyed to her by the Act itself.

Imperial Constitution : — Attention, therefore,
must first be given to the Imperial Constitution.
What are the essential parts of the frame-work
provided by the constitution for the government
of the Empire?

The Crown: — First, there is His Majesty the
King, who, by and with the advice and consent of
the two Houses of the British Parliament and by
the authority of the same, may make laws binding
in all parts of his dominions ; who is also the execu-
tive head and chief executive magistrate by whom
or in whose name are performed the most important
acts of government throughout those dominions,
and, indeed, throughout the world; and who, in all
relations with foreign powers, represents and em-
bodies the British nation. Acting, as always, under
the advice of the British Ministry, he constitutes
the Crown in Council and controls the executive
government of the Empire in due subordination to
the sovereign legislature, the Crown in Parliament.
Clearly no colonial legislature has authority to in-
terfere with the position of the Crown in its rela-
tion in either of these aspects to the government
of the Empire.

The British Parliament: — This naturally leads
to an examination of the nature and extent of the
legislative power lodged in the King in Parliament,
or, to use the common phrase, the British Parlia-
ment. It will appear that for the whole British
Empire legislative sovereignty resides in the Par-
liament of the United Kingdom. No power, not
even its own, can tie its hands. No Court within
the Empire can pronounce its Acts ultra vires.

.L.V

OUTLINE SKETCH. 3

A Constituent Assembly: — And, first, it is the
only constituent assembly in the full sense within
the Empire. That unwritten growth of the ages,
the British Constitution, confides to the King
in Parliament power to alter the Constitution
itself. That principle, it will appear, can have no
place in the written constitution of a colony except
as given a place there by the same power which
gave the constitution. Arid this fact calls for a
careful study of the question: To what extent have
constituent powers been bestowed upon Canadian
legislatures 1

Supreme throughout the Empire: — The Parlia-
ment of the United Kingdom is a body possessed of
a dual character. It is at once a local Parliament
for the United Kingdom (as its name, indeed, im-
plies), and an Imperial Parliament. As will ap-
pear, its enactments are prima facie for the United
Kingdom only, and when it would legislate for the
Empire it must make its purpose clear by ^* express
words or necessary intendment. ' ' No one doubts,
however, that it may make laws to operate in the col-
onies. How far it should do so is a matter of Im-
perial policy and statesmanship, and not, therefore,
matter for discussion in a work of this character,
dealing with legal limitations and not with conven-
tional restrictions. How far it has done so is a
practical question of great importance.

Resulting Limitations on Colonial Powers : —
It naturally follows that no colonial legislature can
make laws repugnant to Imperial Acts extending to
the colony. This constitutes a third limitation upon
the power of Canadian legislatures, and it will be at
once apparent that the extent to which Canadian leg-
islative power is limited along this line depends upon
the answer to the question : What Imperial Acts ex-
tend proprio vigor e to Canada? The British North

4 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

America Act is itself one of such Acts, and most of
the cases touching the question of legislative juris-
diction in Canada, particularly as between the Par-
liament of Canada on the one hand and the provin-
cial legislatures on the other, fall logically within
this branch of our subject. But for obvious reasons
those cases which touch the question of the distribu-
tion among Canadian legislatures of Canada's
rights of self-government and which raise no prac-
tical question of competing Imperial legislation,
will stand for discussion later,^ as one of the main
topics of this book.

Imperial Acts Extending to Canada: — Apart
then from the British North America Act, it will
be shewn that with reference to various matters of
great moment the law in force in Canada is to be
found in Imperial statutes. There are British Acts
of Parliament wholly or partially in force here re-
lating to (1) Naturalization of Aliens, involving
questions as to British, Canadian, and Imperial
citizenship; (2) The Army and Navy, involving
questions as to Canadian participation in the wars
of the Empire and the right of self-defence; (3)
Navigation and Shipping, involving questions as to
the position or even existence of a Canadian mer-
cantile marine, as to admiralty jurisdiction, and as
to Canadian control over the ^' territorial waters "
which for many thousands of miles wash the
Canadian coast: (4) Copyright, involving ques-
tions of interest to Canadian publishers of books,
to say nothing of their readers; (5) Fugitive Offen-
ders, forming with Canadian and other colonial
legislation an extradition code within the Empire;
besides many other Acts of a miscellaneous char-
acter which in matters, some of great, others of tri-
fling moment, give law to Canadians. With regard

* See Part II. : " Self-government."

OUTLINE SKETCH. 5

to all these Acts it must not be understood that they
entirely debar Canadian legislatures from making
any laws in relation to these subjects. As will ap-
pear, Canadian laws may well stand side by side
with Imperial laws upon the same subject matter;
they are void only to the extent of their repugnancy
to such Imperial laws but not otherwise.

Territoriality: — Turning next to consider terri-
torial limitations upon legislative power, it may, it
is conceived, be said with strict propriety that there
is no such limitation capable of judicial enforcement
in British Courts in the case of the British Parlia-
ment, but that the weight of authority at present
favours the proposition that there are legal limita-
tions of which the Courts must take cognizance
which prevent the making of laws by Canadian legis-
latures in relation to persons, property, and acts
beyond the limits of the Dominion or the enacting
province, as the case may be. What those limita-
tions are is manifestly a question of great practical
importance in Canada, calling for careful study.
To solve the problem as to colonial or Canadian
legislation generally where no express words of limi-
tation along this line appear in the colony's charter.
Imperial Act or other, will doubtless aid in arriving
at the true meaning and effect of certain express
words of limitation which occur in the British North
America Act as touching provincial legislation.

Part I. of this book will deal with Imperial Limi-
tations upon Canadian powers of self-government.
Some of thoise limitations are matters of principle
arising from the fact that Canada is not a nation
entitled to international recognition, but is a British
colony ; while others are, in a sense, accidental, aris-
ing from the existence of British statutes extending
to Canada.

6 CANADIAN constitution: IMPERIAL LIMITATIONS.

Part II. will deal with Canadian Self-Govern-
ment under the scheme of the British North America
Act, 1867, and its various amendments, with par-
ticular reference to the division of the field as
between the Dominion Government on the one hand
and the various provincial governments on the other.

CHAPTER II.

The Crown Imperial.

The British form of government is monarchical.
The common law of England, the basis of our con-
stitutional law, recognizes only one person as exer-
cising authority without commission from any other
within or without the realm. That one person is
the wearer, for the time being, of the Crown of the
United Kingdom of Great Britain and Ireland. Who
at any moment of time may wear that Crown is now
determined by statute. By the Act of Settlement^
(as it is usually styled), passed in 1700, the Crown
was settled upon the Electress Sophia of Hanover
and the heirs of her body, being Protestant. The
descent is hereditary but the title is statutory. The
right to our allegiance ^ ' rests wholly on the Act of
Settlement and resolves itself into the sovereignty
of the legislature. '' ^

The law makes the King.^ The legal theory of
British jurisprudence is that further back than any
Court will look there was, as part of the common
law of England, a fundamental law of the constitu-
tion governing the kingship: '^the original right
of the Kingdom and the very natural constitution
of our state and policy."* The King is the head
of the nation both for purposes of legislation and
administration, but in the eye of the law he never
acts alone. In legislating he is the King in Parlia-

^12 & 13 Wm. III. c. 2 (Imp.).

'Hallam, Const. Hist. (Ed. 1884), Vol. III., 181. See post,
p. 166.

^ Bracton, L. 1, c. 8.

*-Per Yelverton arg. 2 St. Tr. 483.

8 CANADIAN constitution: IMPERIAL LIMITATIONS.

ment; in executive government the King in Coun-
cil.^

The law governs the King. The British Mon-
archy is a limited monarchy. The duty of the King
as expressed in the coronation oath is ^' to govern
the people of this United Kingdom of Great Britain
and Ireland and the dominions thereto belonging
according to the statutes in Parliament agreed on
and the respective laws and customs of the same ' ' ;
and the power is commensurate with the duty. The
King, therefore, as has been said, is not above the
law, but under it and bound by it equally with the
meanest of his subjects. No mandate from him
would carry authority to act otherwise than accord-
ing to law.^ There is no power in the Crown to dis-
pense with the obligation resting upon all to obey
the law.^

In order to the due performance of the duties
of the kingly office the common law of England
clothed the head of the nation with certain attri-
butes, rights, privileges, and powers, collectively
known as the prerogatives of the Crown ; some hav-
ing regard to the King's position in relation to Par-
liament, others to his position as head of the execu-
tive government.

Power to alter the law of the land was no part
of these prerogatives.^ That power rested exclu-
sively with Parliament; and the lex et consuetudo
parliamenti was as much a part of the common law

' " It has been a marked and important feature in our con-
stitutional history that the King has never in theory acted in
matters of state without the counsel and consent of a body of
advisers." Anson, Law and Custom of the Constitution, 2nd
Ed., pt. II., 7; citing Stuhbs.

^Ghitty, Prerog. of the Crown. 5; Bracton, L. 1, c. 5; Walker
V. Baird (1892), A. C. 491; 61 L. J. P. C. 92.

^Bill of Rights, 1 Wm. & Mary, st. 2, c. 2 (Imp.).

^ Royal Proclamations. — The reign of Henry VIII. has been
said to represent the high-water mark of kingly power; but

THE CROWN IMPERIAL. 'J

of England as the law which made the King. By
the fundamental law were determined (1) what
should be the constituent parts of Parliament; (2)
their relation to each other; (3) the rights, privi-
leges and immunities of each branch; and (4) their
legislative power working in combination. By this
fundamental law, in short, the relations of the King
to Parliament and of each to the government of the
kingdom were regulated. Parliament consisted of
the King and the three estates of the realm. Lords
spiritual. Lords temporal, and Commons ; and its
enactments were promulgated as the Acts of the
King in Parliament. In theory, it would seem that
defects in the law would be discovered by the King
in the course of the administration of public affairs ;
whereupon, in the exercise of the prerogative right
vested in him by the common law to summon the

even he — content to waive the form so long as he enjoyed the
substance of despotism — ^took care to procure an Act of Parlia-
ment (31 Hen. VIII. c. 8), to give his Royal Proclamations the
force of law. Even this statute, however, provided that no man
should by virtue thereof suffer in his estate, liberty, or person,
and that the laws and customs of the realm should not be sub-
verted thereby; and it was repealed in the next reign (1 Ed.
VI. c. 12). But as long as the Star Chamber continued to exer-
cise its indefinite jurisdiction to fine and imprison for breach of
royal orders, so long proclamations continued to issue. The judg-
ment of Lord Coke and his brethren in the Case of Proclamations
(12 Co. Rep. 74), in the time of James I., had real effect after
the abolition of the Star Chamber. It was recognized as un-
doubted law that a Royal Proclamation cannot of itself make
a new or alter an old law. When in 1766, Chatham, by Order-in-
Council without statutory authority, proclaimed an embargo
upon the export of wheat in order to ward off an apprehended
famine, the time which elapsed until Parliament met was called
a " forty days' tyranny." Parliament, indeed, passed an Act of
indemnity, but it explicitly recited that the Order-in-Council
" could not be justified by law." See further on this subject
Anson, Law & Custom of the Const., 2nd ed.. pt. I., 291, et seq;
Broom. Const. Law, 2nd ed., 371, et seq.; Forsyth, 180.

The power of the Crown in Council, without Parliament, to
make laws for conquered or ceded territory, or for the " planta-
tions," must be considered later: see post, p. 15.

10 CANADIAN constitution: IMPERIAL LIMITATIONS.

three estates of the realm, he would cause Parlia-
ment to assemble in order that the law might (if all
agreed) be altered and the defect remedied. Par-
liament, however, once assembled, might address
itself, not merely to the alteration desired, but to
the alteration of the law upon other matters; and
every alteration in the law agreed upon by the King
and the three estates was thereafter part of that
law of the land in accordance with which the King
swore to govern. As it is sometimes, but not very
intelligibly, expressed, the King's authority as ex-
ecutive head of the nation is subordinate to his
authority as caput et finis parliamenti. The same
idea may be expressed in more modern terms by
saying that the power which makes the law must of
necessity be supreme over the power which simply
carries out the law when made.

The monarchical principle stands good through-
out the Empire. The expansion of England and
the consequent necessity for adapting the British
Constitution to the government of dominions beyond
the seas is a comparatively modern matter.

" In the last years of Queen Elizabeth England had
absolutely no possessions outside Europe, for all schemes
of settlement, from those of Hore in Henry VIII's reign
to those of Gilbert and Ealeigh, had failed alike. Great
Britain did not yet exist; Scotland was a separate kingdom,
and in Ireland the English were but a colony in the midst
of an alien population still in the tribal stage. With the
accession of the Stuart family commenced at the same time
two processes, one of which was brought to completion under
the last Stuart, Queen Anne, while the other has continued
without interruption ever since. Of these the first is the
internal union of the three kingdoms which, though tech-
nically it was not completed till much later, may be said
to be substantially the work of the seventeenth century and
the Stuart dynasty. The second was the creation of a still
larger Britain comprehending vast possessions beyond the

THE CROWN IMPERIAL. 11

sea. This process began with the first Charter given to
Virginia in 1606. It made a great advance in the seven-
teenth century; but not until the eighteenth did Greater
Britain in its gigantic dimensions and with its vast politics
first stand clearly before the world."^

This passage emphasizes the modern character
of what may be termed colonial constitutional law;
and the reference to the Charter of Virginia draws
attention to the fact that at first and for many years
the colonies were the care of the Crown in Council.
Parliament in fact, though it grumbled at times/'^
did not seriously question the right of the Crown to
settle the form of government for the colonies.^
But the claim put forward by the Stuart kings to
private ownership of the overseas dominions was
successfully contested and it was settled doctrine in
1774 that such dominions were held by the King in
right of his Crown and were therefore necessarily
subject to the legislative power of the Parliament
of Great Britain.^ They belonged not to the King
but to the Kingdom as expressed in the Coronation
oath.

That the King of the United Kingdom is King
also of all British Possessions abroad has never
been doubted. But in the self-governing colonies
the Crown is associated, both in the work of legisla-
tion and administration, with persons and bodies
entirely distinct from those with which the King
co-operates in the United Kingdom. The colonial
legislatures, of which he is the head, are in some
cases modelled more or less upon the British Par-
liament. Some again have only a single chamber.
And throughout the Empire the qualifications both

^ Seeley, Expansion of England, p. 11.*

^^Egerton, "A Short History of British CJolonial Policy," pp.
17, et seq.

"■ See post, p. 15.

""Gamvhell v. Hall, Cowp. 204.

12f CANADIAN CONSTITUTION: IMPERIAL LIMITATIONS.

for electors and members are of a varying char-
acter. All colonial legislatures however are locally
elected or selected and they constitute, with the
Crown, distinct legislative entities. The same is
true of the colonial councils, with whose consent and
advice the local executive government is carried on :
they are of a different and distinct composition from
the British ministry. In this view there are many
governmental bodies throughout the Empire with
varying spheres of authority, but the Crown is an
essential part of them all ; and they form an organic
whole under the Imperial Crown.

The Crown, to put it shortly, is the one and only
common factor in government. Imperial and colon-
ial. The British sovereign takes part in the work
of legislation in all legislative bodies, properly so
called, within the confines of the Empire; and he is
also the recognized head of the Executive govern-
ment as well of all British possessions as of the
United Kingdom. The Crown, it has been said, is
one and indivisible,^ '' the highest and ultimate
source of all executive authority throughout the
Queen 's dominions " ; ^ and, it should be added, of
all legislative authority as well throughout the
colonies.

A recent case strongly illustrates this oneness
of the Crown throughout the Empire." One How-
arth had served in the Boer war in South Africa
in the New South Wales forces. It had been agreed
between him and the government of New South
Wales that he was to receive pay at the rate of 10s.
a day. He received from the Imperial Government
4:S. 6d. a day while on active service, and his conten-

^Per strong, J., in R. v. Bank of Nova Scotia, 11 S. C. R. 1;
4 Cart. 391.

* Per Higinbotham, C.J., in Musgrove v. Chun Teeong Toy, 14
Vict. L. R. 349; 5 Cart. 573.

'Williams v. Howarth (1905), A. C. 551; 74 L. J. P. C. 115.

THE CROWN IMPERIAL. 13

tion was that this sum should not be held as part
payment of the larger sum which the colonial gov-
ernment had agreed to pay. The Supreme Court of
New South Wales upheld his claim, but on appeal
to the Privy Council this judgment was reversed.

" The plaintiff/' said Lord Halsbury, deUvering the judg-
ment of the Board, " was in the service of the Crown and his
payment was to be made by the Crown. Whether the money by
which he was to be paid was to be found by the colony or the
mother-country was not a matter which could in any way
affect his relation to his employer, the Crown. The learned
Acting-Chief Justice, in giving judgment in this case said,
* The King has no concern with payments for services ren-
dered in this colony; the obligation is with the Government
of New South Wales ; ' and, so far as their Lordships can
understand, this is the ground upon which the judgment
rests. But, with great respect to the learned judge, this is
entirely erroneous. The Government in relation to this con-
tract is the King himself. The soldier is his soldier, and the
supplies granted to His Majesty for the purpose of paying
his soldiers, whether they be granted by the Imperial or the
colonial legislature, are money granted to the King; and the
Appropriation Act, whenever an Appropriation Act is passed,
simply operates to prevent it being applied to any other
purpose. Under these circumstances the money paid was
money paid for the service rendered to the King and no
other payment could possibly be due upon the contract de-
clared on.''

In an earlier case Bacon, V.C., held that a con-
viction for felony in New South Wales operated
to forfeit to the Crown in England property of the
felon situate in England.^ The property consisted
of moneys in Court and the Attorney-General of
England applied for payment out. It was suggested
by counsel for English relatives that the forfeiture
would enure solely to the government of the colony;

"In re Bateman's Trusts (1873), L. R. 15 Eq. 355; 42 L. J.
Ch. 553.

14 CANADIAN constitution: impeeial limitations.

but, although the point is not expressly noticed in
the judgment, the order was made for payment out
as asked.

In another oase,^ where in English winding-
up proceedings a colonial government claimed the
benefit of the Crown's prerogative right to priority
of payment in respect of Crown debts incurred in
the colony, effect was given to the claim as against
the English creditors.

As between the Dominion of Canada and its
various provinces the same question arises and must
be dealt with more in detail later. Here it will
suffice to say that the principle that the Crown is
one and indivisible throughout the Empire has been
steadily maintained. ^ ^

Caution, however, must be observed in assigning
too literal a meaning to the word '' indivisible."
Although, as said-4ay_^Chancellor Boyd,^ ^* the sov-
ereign power is a^-u^ity and, though distributed in
different channels and under different names, it must
be politically and organically identical throughout
the Empire " — that is to say, the Empire is one
political and organic whole — the fact remains that
the Crown in Parliament and the Crown in Council
in Great Britain and the self-governing colonies
respectively are not one and the same political organ
operating in one and the same sphere. In Canada,
indeed, and in Australia there are still further divi-
sions of the sphere of authority and it is often a
legal question not only where legislative power
over a given subject matter resides, but also
where in particular cases executive power is
lodged and by whom exercisable. Questions
arise too as to which government has the right

''Re Oriental Bank (1885), 28 Chy. D. 643; 54 L. J. Ch. 330.
See post, p. 99, for further reference to this case.

' The Pardoning Power Case, 20 Ont. R., at pp. 249-50.

THE CROWN IMPEKIAL. 15

of appropriation over particular public moneys or
of administering particular public properties. The
result is, as will appear later, that the various gov-
ernments throughout the Empire have often and
necessarily been treated in the Courts as distinct
and separate entities, as witness the frequent
litigation between the federal and provincial
or state authorities.

It may be said that from the earliest days of
colonial history British policy has favoured the prin-
ciple of local self-government. Of necessity the
Crown's executive authority has been lodged with
officers, usually styled Governors, resident for the
time in the respective colonies, and acting as a rule
by and with the consent and advice of a local coun-
cil. The assent of this officer on behalf of the Crown
has invariably been required in order to the valid
enactment of laws in the colony. Local assemblies
were authorized by the earliest charters and Gov-
ernors' commissions, and in 1619 the first colonial
assembly '' broke out " in Virginia.^ That this
grant of legislative power might come from the
Crown in the first instance was, as already men-
tioned, not seriously questioned in Parliament, and
is distinctly affirmed in a well-known judgment of
the Exchequer Chamber in 1870": —

" We consider these doubts as to the powers of the Crown
and of the local legislature to be unfounded. There is

• " Hutchinson speaks of it as ' breaking out,' and Professor
Seeley has repeated the expression. But, in fact, it was duly
summoned by Yeardley according to the instructions he had
received from home": Egerton, p. 32. The phrase is, neverthe-
less, very suggestive of something in the blood of Britons.

^'Phillips V. Eyre (1870), L. R. 6 Q. B. 20; 40 L. J. Q. B. 28.
The validity of an Act of Indemnity passed by the Assembly
of Jamaica was in question. The Assembly was constituted
under a Governor's commission, and not by any Imperial Act.
It was assumed, but not decided, that Jamaica was a colony
by settlement.

16 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

even greater reason for holding sacred the prerogative of
the Crown to constitute a local legislature in the case of
a settled colony where the inhabitants are entitled to be
governed by English law than in that of a conquered colony
where it is only by grace of the Crown that the privilege
of self government is allowed, though where once allowed
it cannot be recalled."

The right of the Crown in Council to legislate
generally for a conquered or ceded colony until the
establishment therein of a local assembly has never
been matter of serious doubt, subject, of course, to
the observance of the terms of the capitulation or
cession.^ But it is very doubtful if the Crown in
Council could do more than grant a constitution to
a colony acquired by settlement and provide it with
Courts to administer the law;^ for it has been con-
sidered that the law of England which emigrating
Englishmen carry with them to their new homes
could not be altered by the Crown alone, but only
by a local assembly or by the Imperial Parliament.^

But when once the right to a local assembly has
been bestowed upon a colony it cannot be recalled

^ See the judgment of Lord Mansfield in Campbell v. Hall,
Cowp. 204; with which compare the valuable note (a) to Leith
& Smith's Blackstone, at p. 19: "It has been said that, in case
of territory acquired by Great Britain by conquest, inasmuch
as the government is not absolutely monarchical, but the auth-
ority to impose laws is vested in the Sovereign conjointly with
the two houses of Parliament, the King therefore alone can
exercise no prerogative right to impose such laws as he pleases,
and consequently 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. C. Jur., appendix
in Wilcox v. Wilcox, and J. C. Jur., vol. I., 2nd part, pp. 38-48.
See also the various judgments in Stuart v. Bowman, 2 L. C. R.,
and in appendix to 2 L. C. Jur." See also Forsyth, 12, et seq. .

^Phillips V. Eyre, ubi supra, lays down no wider proposition
than this.

^ The question, though interesting, is of no practical import-
ance since the British Settlements Act, 1887. See Anson, Law
and Custom of the Const., 2nd ed., pt. II., p. 274.

THE CEOWN IMPERIAL. 17

otherwise than by Imperial legislation; the Crown
in Council can no longer legislate for the colony.
It was so held in 1774 by the King's Bench presided
over by Lord Mansfield.* An Imperial Order-in-
Conncil imposing a duty upon exports from the
island of Grenada was held void because
'^ by the two proclamations and the commission to Governor
Melville the King had immediately and irrevocably granted
to all who were or should become inhabitants, or who had or
should have property, in the island of Grenada — in general
to all whom it might concern — that the subordinate legisla-
tion over the island should be exercised by an assembly/' ^

The commission to the G-overnor ante-dated the
Order-in-Council imposing the export duty by a
scant three months.

And, again, in 1865 the Privy Council laid it
down: — .

" After a colony or settlement has received legislative
institutions the Crown (subject to the provisions of any Act
of Parliament) stands in the same relation to that colony or
settlement as it does to the United Kingdom."^

The King, then, is as much a component part of
every colonial legislature properly so called as he is
of the British Parliament, and he is equally the head
of the executive government of the British Isles and
of every colony. For purposes both of legislation
and administration, the Crown is represented in a
colony by the chief executive officer of the colony by
whatever title he may be designated."^

The next enquiry must be : How is the monarchi-
cal principle dealt with by our constitutional charter,
the British North America Act, 1867?

^Camphell v. Hall, Cowp. 204.

^ The earlier of the two proclamations referred to followed
the Treaty of Paris (1763), and is the proclamation which made
provision for the government of the new British colony of
Quebec. It will, therefore, appear again in this book.

'Re Lord Bishop of Natal, 3 Moo. P. C. (N.S.), 148.

' See B. N. A. Act, 1867, sec, 10.

CAN. COX. — 2

CHAPTER III.

The Ceown in Canada.

The Crown as the one common factor in govern-
ment throughout the Empire, was the suhject of the
last chapter. Confining attention now to Canada : the
position of the Crown in reference to the government
of Canada and its provinces, including the arrange-
ment adopted for the Crown ^s representation, so
to speak, upon the ground, is definitely set out in
the British North America Act, 1867. This Imperial
Act opens with a preamble which recites that Can-
ada, Nova Scotia and New Brunswick had ^^ ex-
pressed their desire^ to be federally united into one
Dominion under the Crown of the United Kingdom
of Great Britain and Ireland, with a Constitution
similar in principle to that of the United King-
dom." It recites further that '^ it is expedient, not
only that the constitution of the legislative author-
ity in the Dominion be provided for, but also that
the nature of the executive government therein be
declared."

Canada's future extension to the Pacific coast
was anticipated; and sec. 146^ made provision for

^ In addresses to the Crown based upon the Quebec Resolu-
tions : see Appendix,

"" 146. It shall be lawful for the Queen, by and with the ad-
vice of Her Majesty's most honourable Privy Council, on addresses
from the Houses of Parliament of Canada, and from the Houses
of the respective legislatures of the colonies or provinces of New-
foundland, 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 addresses expressed and as the Queen thinks fit to approve,
subject to the provisions of this Act; and the provisions of any
order-in-council in that behalf shall have effect as if they had
been enacted by the parliament of the United Kingdom of Great
Britain and Ireland.

Newfoundland has not yet taken advantage of this provision.

THE CEOWN IN CANADA. 19

carrying into effect, by Order-in-Council, any ar-
rangements to that end. British Columbia joined
the Union in 1871, and Prince Edward Island in
1873, and the Orders-in-Council ^ uniting them to
Canada are, in effect. Imperial statutes. Rupert's
Land and the North- Western Territory were united
to Canada in 1870,^ and the Province of Manitoba
was established therein by an Act of the Parliament
of Canada * which was subsequently validated by an
Imperial Act.^ This Imperial statute also provided
for the future creation of other provinces within
the territory by Canadian enactment,*' and in 1905
the provin<3es of Alberta and Saskatchewan were
duly so established."^

To aid in the study of those clauses of the Brit-
ish North America Act, of the Orders-in-Council,
and of the Canadian enactments above referred to,
which make provision for what may be called the
machinery of government, in Canada as well as in
the provinces, they are here grouped together.

But, first, it may be pointed out that Canada, as
constituted under the British North America Act,
was divided into four provinces, Ontario, Quebec,
Nova Scotia and New Brunswick.^ Canada as it
existed under the Union Act, 1840, was to be taken

^ These are printed in full in the appendix.

^ The order-in-council is printed in appendix.

*33 Vict, c. 3 (Dom.) See appendix.

»"The British North America Act, 1871," (34 & 35 Vict., c. 28,
Imp.), sec. 5. In appendix.

• 2. The Parliament of Canada may from time to time establish
new Provinces in any territories forming for the time being
part of the Dominion of Canada, but not included in any Province
thereof, and may, at the time of such establishment, make pro-
vision for the constitution and administration of any such Pro-
vince, and for the passing of laws for the peace, order, and good
government of such Province, and for its representation in the
said Parliament.

M & 5 Ed. VII., caps. 3 & 42, in force 1st Sept., 1905.

'See. 5.

20 CANADIAN constitution: imperial limitations.

as severed ; what had formerly been Upper Canada
was now to form the new province of Ontario, while
Lower Canada was to constitute the new province of
Quebec.^ Nova Scotia and New Brunswick retained
their former limits/'^ The necessity for new ma-
chinery, so to speak, for the new provinces of On-
tario and Quebec, as well as for the newly consti-
tuted Dominion, is to be borne in mind in reading
the sections.

Part III. of the British North America Act,
under the heading-** Executive Authority/^ contains
the following clauses : —

9. The Executive Government and Authority of and over
Canada ^ is hereby declared to continue and be vested in the
Queen.2

10. The provisions of this Act referring to the Governor-
General extend and 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-
ment of Canada on behalf and in the name of the Queen, by
whatever title he is designated.

' 11. There shall be a council to aid and advise in the
government of Canada, to be styled the Queen's Privy Coun-
cil for Canada; and the persons who are to be members of
that council shall be from time to time chosen and sum-
moned by the Governor-General and sworn in as Privy Coun-
cillors, and members thereof may be from time to time re-
moved by the Governor-General.

' Sec. 6.

"Sec. 7.

^4. . . . unless it is otherwise expressed or implied, the
name Canada shall be taken to mean Canada as constituted under
this Act.

^2. The provisions of the Act referring to Her Majesty the
Queen extend also to the Heirs and Successors of Her Majesty,
Kings and Queens of the United Kingdom of Great Britain and
Ireland.

THE CKOWN IN CANADA. 21

13. The provisions of this Act referring to the Governor-
General 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.

Constitution of Parliament of Canada.

17. There shall be One Parliament for Canada, consisting
of the Queen, an Upper House styled the Senate, and the
House of Commons.

V. Provincial Constitutions.

Executive Power.

68. For each province there shall be an officer, styled the
Lieutenant-Governor, appointed by the Governor-General-in-
Council by instrument under the Great Seal of Canada.

^ ^ t' * * * * *

62. The provisions of this Act referring to the Lieuten-
ant-Governor extend and apply to the Lieutenant-Governor
for the time being of each province or other the chief exe-
cutive officer or administrator for the time being carrying
on the government of the province, by whatever title he is
designated.

63. The Executive Council of Ontario and of Quebec shall
be composed of such persons as the Lieutenant-Governor from
time to time thinks fit, and in the first instance of the fol-
lowing officers, namely: —

Executive Government of Nova Scotia and New Brunswiclc.

64. The constitution of the executive authority in each
of the provinces of Nova Scotia and New Brunswick shall,
subject to the provisions of this Act, continue as it exists at
the Union until altered under the authority of this Act.

66. The provisions of this Act referring to the Lieuten-
ant-Governor in Council shall be construed as referring to

22 CANADIAN constitution: imperial limitations.

the Lieutenant- GrovernoT of the province acting by and with
the advice of the Executive Council thereof.

Legislature for Ontario.

69. There shall be a Legislature for Ontario, consisting of
the Lieutenant-Governor and of One House, styled the Legis-
lative Assembly of Ontario.

Legislature for Quebec.

71. There shall be a Legislature for Quebec, consisting of
the Lieutenant-Governor and of Two Houses, styled the Legis--
lative Council of Quebec and the Legislative Assembly of
Quebec.

Legislatures of Nova Scotia and New Brunsivick.

88. The Constitution of the Legislature of each of the
provinces of Nova Scotia and New Brunswick shall, subject
to the provisions of this Act, continue as it exists at the
Union until altered under the authority of this Act; and the
House of Assembly of New Brunswick existing at the passage
of this Act shall, unless sooner dissolved, continue for the
period for which it was elected.

YI. Distribution of Legislative Powers.

Powers of the Parliament.

91. It shall be lawful for the Queen, by and with the
advice and consent of the Senate and House of Commons, to
make laws for the peace, order, and good government of
Canada, in relation to all matters not coming within the
classes of subjects by this Act assigned exclusively to the
Legislatures of the provinces; . . .

Exclusive Powers of Provincial Legislatures.

92. In each province, the Legislature may exclusively
make laws in relation to matters coming within the classes
of subjects next hereinafter enumerated ; that is to say, — . . .

THE CKOWN IN CANADA. 23

British Columbia.

The Imperial Order-in-Council ^ admitting Brit-
ish Columbia into the Union contains these clauses :

10. The provisions of the " British North America Act,
1867/' shall (except those parts thereof which are in terms
made, or by reasonable intendment may be held to be, specially
applicable to and only affect one and not the whole of the
provinces comprising the Dominion, and except so far as the
same may be varied by this minute) be applicaible to British
Columbia 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.

14. The constitution of the executive authority and of
the legislature of British Columbia shall, subject to the pro*
visions of the " British North America Act, 1867," continue
as existing at the time of the Union until altered under the
authority of the said Act, it being at the same time under-
stood that the government of the Dominion will readily con-
sent 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.'

^ 6th May, 1871 (Imp.), printed in appendix.

^ 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 9th 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 coun-
cil, to make laws for the peace, order, and good government of
the colony; it recites also the Colonial Laws Validity Act, 1865,
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 legislative assembly of wholly
elective members.

24 CANADIAN constitution: imperial limitations.

Prince Edward Island.

The Imperial Order-in-Council ^ admitting Prince
Edward Island contains these clauses : —

That the constitution of the executive authority and of
the legislature of Prince Edward Island, shall, subject to the
provisions of the ^^ British North America Act, 1867," con-
tinue as at the time of the Union, until altered under 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,
1867," shall, except those parts thereof which are in terms
made, or by reasonable intendment may be held to be spe-
cially applicable to, and only to affect one and not the whole
of the provinces now composing the Dominion, and except
so far as the same may be varied by these resolutions, be
applicable to Prince Edward Island, in the same way and to
the same ex'tent 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 by the said Act.

Manitoba, Alherta, Saskatchewan.

The proviisions af the statutes which created
these provinces and provided for their constitution
need not be set out here in detail.* The language
employed in each case as to the Lieutenant-Gover-
nor and his Executive Council, and as to the Assem-
bly and its legislative power, closely follows the
language of the British North America Act, 1867.

The sections above set out or referred to, it may
be said, indicate the constitution of Canada and its
provinces in its essential outline. The details as

«26th June, 1873 (Imp.), printed in appendix.
* The Acts are printed in full in the appendix.

THE CROWN IN CANADA. 25

to the powers and privileges of the Crown both sta-
tutory and prerogative in connection with what may
be called the every-day work of government, as to
the legislative and executive machinery of govern-
ment, and as to the Crown's assets both federal and
provincial, must be filled in later. Only the funda-
mental fact of the Crown's headship in Canada is
now under consideration.

And it will have been noticed that the British
North America Act does not create that headship;
it simply declares it as to the new entity, the Domin-
ion of Canada. The constitution of the legislative
and executive authority of Nova Scotia and New
Brunswick is continued ; subject of course to the pro-
visions of the Act which diminish the provincial
sphere of authority; and the same is true as to
British Columbia and Prince Edward Island upon
their admission. And for the other new provincial
entities, Ontario and Quebec, the headship of the
Crown is, as it were, properly taken for granted.

The lack of specific reference to the Queen in the
section (58) which provides for the appointment of
Lieut.-Governors for all the provinces, in section
62^ and in the sections (69 and 71) which provide
for the composition of the legislatures of Ontario
and Quebec respectively, was formerly much uti-
lized in argument to belittle the standing of the
provinces of Canada, but the controversy was set at
rest by a judgment of the Privy Council in 1892,
which aifirmed the full autonomy, under the Crown,
of the provinces in relation to all matters committed
to them by the British North America Act.^ By this
judgment provincial government both in its legisla-
tive and executive departments was authoritatively

^ With which compare sec. 10.

^Liquidators of Maritime Bank v. Receiver-Gen. of New
Brunswick (1892), A. C. 437; 61 L. J. P. C. 75; commonly cited
as the Liquidator's Case.

26 CANADIAN constitution: imperial limitations.

established as the King's government. The precise
point involved was as to the right of the provincial
executive of New Brunswick to enforce the Crown's
prerogative right to priority over other creditors
in the winding-up of a bank. The contention put
forward against the right is clearly stated in their
Lordships' judgment and is emphatically held
erroneous :

" The appellants . . . conceded that, until the pas-
sage of the British North America Act, 1867, there was pre-
cisely the same relation between the Crown and the province
which now subsists between the Crown and the Dominion;
but they maintained that the effect of the statute had been
to sever all connection between the Crown and the pro-
vinces, 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 institu-
tions. For these propositions their Lordships have been un-
able to find either principle or authority. . . .

^' It would require very express language, such as is not
to be 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 the British Sovereign was to have no share. In
asking their Lordships to draw that inference from the
terms of the statute, the appellants mainly, if not wholly,
relied upon the fact that whereas the Glovernor-General of
Canada is directly appointed by the Queen, the Lieutenant-
Governor of a province is appointed, not by Her Majesty,
but by the Governor-General, who has also the power of dis-
missal. If the Act had not committed to the Governor-Gen-
eral the power of appointing and removing Lieutenant-
Governors, there would have been no room for the argument,
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 1867 came into operation. But the argument
ignores the fact that by section 58 the appointment of a
provincial Governor is made by the * Governor-General in
Council, by instrument under the Great Seal of Canada,' or,

THE CROWN IN CANADA. 27

in other words, by the executive government of the Dominion
which is by section 9 expressly declared * to continue and be
vested in the Queen/ There is no constitutional anomaly in
an executive officer of the Crown receiving his appointment
at the hands of a governing body who have no power and no
functions except as representatives of the Crown. The act
of the Governor-General and his council in making the ap-
pointment was, within the statute, the act of the Crown;
and a Lieutenant-Governor, when appointed, was as much
the representative of Her Miajesty for all purposes of pro-
vincial government, as the Governor-General himself was for
all purposes of Dominion government.^'

The British North America Act, it should fur-
ther be noted, makes no express provision for
the appointment of a Governor-General. It is,
as will appear later,^ one of the Crown's im-
perial prerog^atives to appoint governors for the
various British possessions, and the British
North America Act does not purport to interfere
with this prerogative so far as concerns the Dom-
inion, although it does largely, if not entirely, de-
termine the duty of the Governor-General when ap-
pointed ; of which later. But the Act does take from
the Crown in Council (Imperial) the power to ap-
point the Lieutenant-Governors of the provinces and
vests that powei* in the Crown in Council (Cana-
dian) ; or, to express it less technically, the appoint-
ment rests with the Dominion Government and not
with the British Ministry. But a Lieutenant-Gov-
ernor is the Crown's representative for all purposes
of provincial government. The Crown, in short, is
at the head of all our governments, both federal and
provincial.^

Tost, p. 148.

* Compare the Commonwealth of Australia Constitution Act
(63 & 64 Vict. c. 12, Imp.): "Chap. I, Part 1.— 1. The legislative
power of the Commonwealth shall be vested in a Federal Par-
liament which shall consist of the Queen, a Senate, and a House

28 CANADIAN CONSTITUTION: IMPERIAL LIMITATIONS.

The Crown acting in conjunction with the British
Parliament is the supreme power in legislation
throughout the Empire and cannot, acting in con-
junction with any colonial legislature, make laws
repugnant to Imperial legislation. The position
therefore of the British Parliament in the constitu-
tional system of the Empire and the consequent
limitations upon colonial powers must first be con-
sidered.

of Representatives, . . Chap. II.: The Executive Government.
^61. The executive power of the Commonwealth is vested in the
Queen, and is exercisable by the Governor-General as the
Queen's representative, . . . Chap. V.: The States. — 106. The
Constitution of each State of the Commonwealth shall, subject
to this Constitution, continue as at the establishment of the
Commonwealth." . . . Nothing appears in the Act as to the
appointment of State Governors. They are still Imperial ap-
pointments.

CHAPTER IV.

The British Parliament as a Constituent
•Assembly.

In the last legal analysis the Parliament of the
United Kingdom of Great Britain and Ireland is
the supreme power in the government of the British
Empire. Its legislation may, for the purposes of
this present enquiry, be classified as constitutional
(or constituent) and ordinary. Along both lines it is
at once a local assembly for the British Isles and an
Imperial assembly hampered by no legal restrictions
in legislating for the Empire as a whole or for any
of its parts, as it may deem fitting. And, first, as to
the nature and extent of its powers as a constituent
Assembly. It is

The Supreme Constituent Assembly for the
British Isles.

We know, of course, that the will of the electorate
of the United Kingdom expressed through their
representatives in the House of Commons is the ul-
timate power in the government of the British Isles ;
but from a legal standpoint it is quite accurate to
say that all the powers of the British electorate are
by the British Constitution lodged unreservedly with
the British Parliament.^ Nothing is so fundamental
in the British Constitution that Parliament may not
change it; and change it, too, in the same way as it
changes the law as to any other, the least important
matter, namely, by Act of Parliament.

^ The difference in this respect between the British Parlia-
ment and the legislatures of the United States of America, both
Federal and State, is discussed at some length in a later chapter.
See post, Part II., Chap. XVII.

30 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

" It can regulate or new model the succession to the
Crown; as was done in the reigns of Henry VIII. and Wil-
liam III. It can alter the established religion of the land;
as was done in the reigns, of Henry VIII. and his three
children.^ It can change and create afresh even the Consti-
tution of the Kingdom and of Pai^iaments themselves; as
was done by the Act of Union and the several statutes for
triennial and septennial elections. It can, in short, do any-
thing that is not naturally impossible." ^

The power of Parliament to legislate in reference
to the Crown 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 descent, limitation, in-
heritance and government thereof.'' But though
the validity of the Act of Settlement * was thus
affirmed and the theory of divine right explicitly
denied, and though the title to the Crown is now a
purely statutory title, the monarchical principle still
obtains in all its essential features. Nevertheless
the attributes, rights and powers of the King as
recognized at common law have in the great major-
ity of cases been the subject of legislation. They
have largely ceased to be the prerogatives of the
Crown at common law and have become statutory
powers.

Coke mentions no instance of legislation by
Parliament in reference to the constitutional posi-
tion of the House of Lords ; but recent legislation, as
is well known, has greatly curtailed its powers, and

^As will appear later, this is not a matter of direct concern
In the colonies. There is no religion established by law in them:
Re Lord Bishop of Natal, 3 Moo. P. C. (N.S.), 115.

""Coke, 4th Inst. 36, p. 8.

* 12 & 13 Wm. III. c. 2 (Imp.). See ante, p. 7.

BRITISH PARLIAMENT AS A CONSTITUENT ASSEMBLY. 31

under certain conditions its assent is no longer
essential to the passing of an Act of Parliament.

The Septennial Act, by which a Parliament
elected for three years extended its life to seven,
strikingly illustrates the supremacy of Parliament
and makes clear that it is not in point of law an
agent or trustee for the electors in the sense that its
departure from or neglect to procure what is popu-
larly called ' ^ a mandate from the people ' ' would in-
validate its Acts.

The Union Acts both for Scotland and Ireland
contain provisions which at the time of their passage
were settled by treaty and might well therefore have
been considered so fundamental as to be unalterable
by subsequent legislation. They have nevertheless
been altered in several such particulars. ^

As the British Parliament is truly an Imperial
Parliament, any legislation as to itself, its compon-
ent parts and their relation to each other, the elec-
toral franchise, the duration of Parliament, and
kindred topics, is in a sense Imperial legislation,
while from a narrower standpoint it might well be
considered local British legislation. The important
point is that whether viewed as an Imperial or as a
local assembly the British Parliament is in law its
own sole master. But it is more; it is also

The Supreme Constituent Assembly for the
Colonies,

Parliament never doubted its own power to legis-
late for the colonies.^ There was, in fact, from .the
earliest colonial times much legislation about trade
and navigation of express colonial application ^ —

* See Anson, Law and Custom of the Const., 2nd ed., Pt. I.,
35-6.

^ See post, p. 52.

' Egerton, Short Hist, of Col. Policy, 60, 70, et seq.

32 CANADIAN constitution: impekial limitations.

some of it with dire results — but, as already noticed,'
Parliament long left it to the Crown in Council to
prescribe the form of local government to be set up
in the colonies. The first British statute conferring
a Constitution upon a colony was the Quebec Act,
1774. '

The legislative power of the Crown in Council
over the colonies was always, as has been said, sub-
ordinate to Parliament ;^^ and a Constitution once
granted could not be recalled by the Crown.^ But as
the Constitution of Canada rests now upon an Im-
perial statute it is unnecessary to pursue further
here the question as to the relation between the
Crown in Council (Imperial) and the colonies. ^

With the acquisition of overseas dominions the
British Parliament took on a dual character. It
continued to be the local Parliament for England,'
but it assumed also and without any effective dissent
the character of an Imperial Parliament, the su-
preme law-making power in and for the Empire. It
provides by statute for the form of government to
be established in a colony, as well as for all matters
which it deems to be of Imperial concern. It is as
the constitution-maker for the colonies that we here
regard it.

^ Ante, p. 11.

»14 Geo. III. c. 83 (Imp.) The proclamation of 1763 and the
commission to G-ov. Murray (provided for a local assembly. To
substitute for this a Crown appointed council required an Act of
Parliament. See ante, p. 16.

^° Campbell v. Hall, Cowp. 204 ; ante, p. 17.

^Phillips V. Eyre (1870), L. R. 6 Q. B. 20; 40 L. J. Q. B. 28.
See'ante, p. 15.

- The question as to the existence and extent of Imperial pre-
rogatives, exerciseable upon the advice of the British Ministry,
in relation to colonial government, is dealt with in Chapter VIII.,
post, p. 116.

^Expanding soon into the Parliament of Great Britain and
later into the Parliament of the United Kingdom of Great Britain
and Ireland.

BRITISH PARLIAMENT AS A CONSTITUENT ASSEMBLY. 33

The constitution of the law-making body in a
colony, the method of election or selection of its
members, the privileges and powers other than legis-
lative of the assembly and its members, and the
range of its legislative powers, all depend upon the
charter of government bestowed by the Imperial
authorities, whether that charter take the form of a
Governor's commission as in earlier times, or an Act
of the British Parliament as is now usual.

It would seem to follow that a colonial legislature
does not inherently possess constituent powers in the
proper sense. It must work along the lines pre-
scribed and with the machinery provided by its
charter of government. If that charter itself or any
other Imperial enactment convey constituent powers
the position is different ; and the question is : to what
extent have constituent powers been given?

CAN. CON.— 3

CHAPTEE V.

Constituent Powers of Canadian Legislatures.

It would seem hardly necessary to quote author-
ity for the proposition that a colonial legislature
cannot alter the Constitution conferred upon it un- >
less power to that end has been given by its charter
or by other Imperial enactment.

Range of legislative poiver: — And, first, as to'
the general range of the legislative power of a col-
onial assembly: One must always refer to the col-
onial charter — proclamation, commission or Imper-
ial Act — containing the grant of legislative power,
to ascertain its extent. Beyond the limits therein
laid down power cannot extend, although within
those limits it is supreme ; as will appear later.

" The Indian legislature has powers expressly limited by
the Act of the Imperial Parliament which created it and it
can, of course, do nothing beyond the limits which circum-
scribe these powers."

This is the language of the Privy Council in
1878 ^ and it has been repeated several times since
in reference to colonial legislatures. The latest
statement perhaps is that of Farwell, L.J., in 1910.
Speaking of legislative assemblies in colonies, he
says :

"Such assemblies derived their powers from the Imperial
Act creating them and had no powers be3^ond those given
expressly or by implication by such Act." ^

The Privy Council has had occasion several times
to consider the position of colonial legislatures in

^R. V. Burah, L. R. 3 App. Cas. 889; 3 Cart. 409.
. 'R. y. Crewe (1910), 2 K. B. 576; 79 L. J. K. B. 874, 888.

CONSTITUENT POWERS OF CANADIAN LEGISLATURES. 35

reference to their privileges and powers other than
legislative ; ^ and the restrictive view taken by their
Lordships in reference to colonial legislation upon
these topics, which might well be considered inciden-
tal, would apply a fortiori to the more substantial
question as to the range of legislative power con-
ferred. In view of the fact that the power conferred
upon colonial legislatures is usually of the most
ample kind, namely, '* to make laws for the peace,
order, and good government of the colony, '''^ this
phase of the subject is not of great practical import-
ance in colonies in which the entire legislative power
of the colony is lodged in one legislature;'^ but in
Canada, where legislative power (of the most ample
kind, viewed as a whole) ^'* is distributed between a
central Parliament on the one hand and provincial
assemblies on the other, the obligation to keep with-
in the bounds assigned is imperative. It is, indeed,
the fundamental principle of a federal form of
government.

It would seem an equally clear proposition that
a colonial legislature cannot, without permissive Im-
perial enactment, alter the legislative machinery
provided for the colony or change the method
prescribed for the selection or election of the
members of the colonial law-making body. No
question has been raised in any court of law as
to the proposition so far; but as to the powers
other than legislative of colonial assemblies,
their privileges and immunities, much debate has

' See post, p. 37.

* See Kiel v. R. (1886), 10 App. Cas. 675; 55 L. J. P. C. 28.

" See, however, the chapter on Exterritoriality, j^ost, p. 65.

^"^ " It would be subversive of the entire scheme and policy of
the Act to assume that any point of internal self-government was
withheld from Canada": jjer Lord Loreburn, L.C., in delivering
the judgment of the Privy Council in Atty.-Gen. (Out.) v. Atty.-
Gen. {Can.); the References Case (1912), A. C. 571; 81 L. J. P.
J. C. 210.

36 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

taken place. As, however, the Colonial Laws Valid-
ity Act, 1865,^ has dealt in one section with the whole
wide question as to the '' constitution '^ as well as
the ^^ powers and procedure '' of colonial assem-
blies, it is not easy to entirely separate these topics.

Constitutional changes: — 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 Imperial Act (the IJnion Act, 1840) which pre- '
scribed the form of political organization in the pro-
vince. Accordingly, an Imperial Act was passed '
authorizing the Parliament of Canada to make the
desired change. When, in the early 'sixties, the
Legislature of South Australia desired to alter the
Constitution of the Legislative Council and Assem-
bly of that colony, Imperial intervention was not
sought. Doubts were, in consequence, raised as to
the validity of the colonial Acts by which the desired
change had been effected, and, to set the matter at
rest, an Imperial Act was passed in 1863 validating
all colonial legislation of like description,^ but this
Act, though applicable to all the colonies of the

« 28-29 Vict. c. 63 (Imp.). See Appendix.

U7 & 18 Vict. c. 118.

* " All laws heretofore passed or purporting to have been
passed by any colonial legislature with the object of declaring or
altering 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." (26 & 27 Vict,
c. 84).

CONSTITUENT POWERS OF CANADIAN LEGISLATURES. 37

Empire, was retrospective, merely, in its operation.
Two years later was passed the Colonial Laws
Validity Act, 1865,^ to be referred to more particu-
larly in a moment.

Privileges, etc., of Parliament: — The law which
defines the privileges, immunities, and powers of
the British Parliament, and of the members there-
of, is largely part of the ancient law of England.
The branch of English common law which deals
with this subject is known as the lex et consuetudo
parliamenti, and the Privy Council, on appeals
from the colonies, has uniformly held that it is
strictly local in its application; that it refers not
to a supreme legislature in the abstract, but to the
Parliament of Great Britain in the concrete; and
that therefore it was a branch of the common law
which emigrating colonists would not carry with
them. The grant, therefore, of a legislature to a
colony did not, without more, invest such body and
its members with those privileges, immunities, and
powers which were possessed by the British Parlia-
ment and its members. ^^ The powers, other than/,
legislative, of a colonial legislature (unless express- j
ly 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
assembly, viz., '' such as are necessary to the exist-
ence of such a body, and the proper exercise of the
functions which it is intended to execute. ' ' ^

" Whatever, in a reasonable sense, is necessary for these
purposes, is impliedly granted whenever any such legisla-
tive body is established by competent authority. For this
purpose, protective and self-defensive powers only are neces-
sary, and not punitive. If the question is to be elucidated

« 28 & 29 Vict. c. 63 (Imp.). See Appendix.
^^ See extract from Fielding v. Thomas, quoted post, p. 45.
* See Speaker v. ijlass, L. R. 3 P. C. 560; 40 L. J. P. C. 17.
2 KieUey v. Carson, 4 Moo. P. C. 88.

38 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

by analogy, that analogy is rather to be derived from other
assemblies not legislative, whose incidental powers of self-
protection are implied by the common law (although of in-
ferior importance and dignity to bodies constituted for pur-
poses of public legislation), than from the British Parlia-
ment, which has its own peculiar law and custom, or from
courts of record, which have also their special authorities
and privileges recognized by law.''^

The Privy Council has also held that without ex-
press authority from the Imperial Parliament a
colonial legislature could not confer on itself the
privileges of the British " Commons' House " or
the power to punish the breach of those privileges
by imprisonment or committal for contempt.* This
power, however, was conferred by the Colonial Laws
Validity Act, 1865,^ in unrestricted terms.

Colonial Laws Validity Act: — The fifth section
of that Act provides :

5. Every representative Legislature ^ shall, in respect to
the colony under its jurisdiction, have, and be deemed at all
times to have had, full power to make laws respecting the
constitution, powers, and procedure of such Legislature; pro-
vided that such laws shall have been passed in such manner
and form as may from time to time be required by any Act

^Barton v. Taylor, 11 App. Cas. 197; 55 L. J. P. C. 1. See
Anderson v. Dunn, 6 Wheat, 204, and KiWourn v. Thompson, 103
U. S. 168, as to the position of Congress. See also Payson v.
Buliert (1903), 44 S. C. R. 400; Harnett v. Crick (1908), A. C.
470; 78 L. J. P. C. 38.

* Fielding v. Thomas (1896), A. C. 600; 65 L. J. P. C. 103; 5
Cart. 398. In the first edition of this book the view, erroneous
It now appears, was expressed (p. 327), that the power to make
laws for a colony carries with it the power to legislate as to the
privileges, etc., of the law-making body, citing Barton v. Taylor,
ubi supra, and Ex p. Dansereau, 2 Cart. 165; 19 L. C. Jur. 210.
Upon this matter, therefore, the Colonial Laws Validity Act is
more than declaratory; it is emabling and retroactive.

"28 & 29 Vict. c. 63 (Imp.). See Appendix.

® " Representative legislature " is defined in sec. 1. See
Appendix.

CONSTITUENT POWERS OF CANADIAN LEGISLATURES. 39

of Parliament, letters patent, Orcler-in-Council, or colonial
law for the time being in force in the colony.

This section, however, though a notable mile-|
stone in the march of the colonies to fuller powers |
of self-government, has largely ceased to operate in \
Canada. The British North America Act, 1867, ' |
contains clauses which cover nearly, if not quite, the
entire ground. That Act was passed, as everybody
knows, to carry into effect a plan for the federal
union of Nova Scotia, New Brunswick, and Canada
as it existed under the Union Act of 1840.^ Out of
the last named, two provinces were to be formed,
Ontario and Quebec, corresponding with Upper Can-
ada and Lower Canada respectively as they existed
under the Constitutional Act of 1791." This, of
course, necessitated new legislative machinery for
Ontario and Quebec as well as for the new Dominion.
The legislatures of Nova Scotia and New Brunswick
were simply continued,^^ their sphere of legislative
authority being, of course, diminished.

Provincial Constitutions: — Power to alter the
provincial constitutions is given to the provincial
legislatures by sec. 92 of the Act, which, so far as is
material, reads as follows :

92. In each province the legislature may exclusively make
laws in relation to matters coming within the classes of subjects
next hereinafter enumerated, that is to say: —

1. The amendment from time to time, notwithstanding any-
thing in this Act, of the constitution of the province,
except as regards the office of Lieutenant-Governor.

This provision, it is hardly necessary to state,
applies to all the Canadian provinces as they exist
to-day.

^30-31 Vict. c. 3 (Imp.).
«3 & 4 Vict. c. 35 (Imp.).

«31 Geo. III. c. 31 (Imp.). See B. N. A. Act, 1867, sec. 6.
'' B. N. A. Act, 1867, sec. 88.

40 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

Federal Constitution : — There is no similar pro-
vision, at least in express terms, with reference to
the Parliament of Canada. The legislative machin-
ery for the Dominion is provided for in Part IV. of
the Act, sections 17 to 57 (both inclusive), and a per-
usal of these sections discloses in many instances a
rather minute attention to details. A few sections
are prefaced by the phrase " until the Parliament
of Canada otherwise provides/' and this has been
held to impliedly confer full power to legislate upon
the matters covered by such sections.^^ The ques-
tion arose in connection with the trial of election
petitions. Sections 40 and 41 continued the old elec-
toral districts, and the existing law as to elections,
qualifications for members and voters, election trials,
etc., ' ' until the Parliament of Canada otherwise pro-
vides." The Parliament of Canada has long since
otherwise provided and these two sections are now
therefore effete ^ except in so far as they confer
power to legislate upon the various matters referred
to in them. That they do impliedly confer such
power was held by the Privy Council in 1880 :

" That other clause, the 41st, expressly says that the old
mode of determining this class of questions was to continue
until the Parliament of Canada should otherwise provide.
It was, therefore, the Parliament of Canada which ivas
otherwise to provide. It did otherwise provide by the Act of

^^To the other sections not so prefaced the maxim mentio
unius, etc., would appear to apply in denial of the power of the
Parliament of Canada to alter their provisions.

^In Willett V. De Grosbois (2 Cart. 332; 17 L. C. Jur. 293),
certain pre-Confederation laws of the old province of Canada in
respect to election matters were held to be still in force in Que-
bec An Act of 1860 (23 Vict. c. 17) made void any contract
referring to or arising out of a* parliamentary election, even for
payment of lawful expenses. The Dominion Parliament, after
Confederation, passed an Act respecting Dominion elections, but
not containing this or any like provision, and it was held that
this provision never having been repealed was in force in Quebec
as to Dominion elections (under this section 41, and section 129)

CONSTITUENT POWERS OF CANADIAN LEGISLATURES. 41

1873, which Act it afterwards altered and then passed the
Act now in question. So far, it would appear to their Lord-
ships very difficult to suggest any ground upon which the
competency of the Parliament of Canada so to legislate
could be called in question." ^

The provisions as to the Senate are contained in
sections 21 to 36, both inclusive ; and the only one of
these with which the Canadian Parliament is ex-
pressly empowered to deal is the provision in sec.
35 as to the number of Senators necessary to form a
quorum.^ When it was thought desirable that a
Deputy Speaker should be appointed for the Senate,
an Act to that end passed by the Parliament of Can-
ada was validated by an Imperial Act.* No such
difficulty arose in reference to a Deputy Speaker for
the House of Commons and that office was created

and that therefore a promissory note given as a contribu-
tion to the expenses of a subsequent Dominion election was
void. In 1874, however, this old statute was repealed so far as
It affected Dominion elections (37 Vict, 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.

""Valin v. LangJois, 5 App. Cas. 115; 49 L. J. P. C. 37; 1 Cart.
158. The legislative jurisdiction of the Dominion Parliament
with respect to the election of members of that body has been
said by the Court of Appeal for Ontario to be " beyond dispute."
See Doyle v. Bell, 11 O. A. R. 326 (affirming 32 U. C. C. P. 632),
in which the provisions of the Dominion Controverted Elections
Act for the prevention of corrupt practices at elections, and for
their punishment either criminally or by the forfeiture of money
to be sued for and recovered by an informer, were upheld as the
exercise of power necessarily " incident to the power to regulate
the mode of election of members of Parliament." The conten-
tion of the defendant was, that the giving of a right of action
to an informer was legislation as to " civil rights in the pro-
vince," and therefore 2iltra vires.

* 35. Until the Parliament of Canada otherwise provides, the
presence of at least fifteen Senators, including the Speaker, shall
be necessary to constitute a meeting of the Senate for the exer-
cise of its powers.

*59 Vict. (Sess. 2), c. 3 (Imp.). See Appendix.

42 CANADIAN constitution: imperial limitations, '

by a Canadian enactment ^ under the power conveyed
by the opening clause of sec. 47.^

Redistribution: — Under sec. 51 the decennial re-'
adjustment of representation as between the differ-i
ent provinces is in the hands of the Parliament of j
Canada.^ The section seems to contemplate that thej
readjustment should be undertaken by some author- '
ity outside Parliament, but the practice is otherwise, i

»48 & 49 Vict. c. 1 (Dom.).

^ 47. Until the Parliament of Canada otherwise provides, in
case of the absence for any reason of the Speaker from the
chair of the House of Commons for a period of forty-eight con-
secutive hours, the House may elect another of its members to
act as Speaker, and the member so elected shall during the con-
tinuance of such absence of the Speaker have and execute all
the powers, privileges, and duties of Speaker.

^51. On the completion of the census in the year one thou-
sand eight hundred and seventy-one, and of each subsequent
decennial census, the representation of the four provinces shall
be readjusted by such authority, in such manner and from such
time as the Parliament of Canada from time to time provides,
subject and according to the following rules: —

(1) Quebec shall have the fixed number of sixty-five members.

(2) There shall be assigned to each of the other provinces

such a number of members as will bear the same pro-
portion to the number of its population (ascertained
at such census) as the number sixty-five bears to the
number of the population of Quebec (so ascertained).

(3) In the computation of the number of members for a

province a fractional part not exceeding one-half of the
whole number requisite for entitling the province to a
member shall be disregarded; but a fractional part
exceeding one^half of that number shall be equivalent
to the whole number.

(4) On any such re-adjustment the number of members for

a province 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 ter-

mination of the then existing Parliament.

CONSTITUENT POWERS OF CANADIAN LEGISLATURES. 43

Nothing appears in the Quebec Eesolutions, or in
the debates thereon, in reference to the question of
delegating the power of distribution to an authority
independent of Parliament ; but in 1892 the question
was raised in the Dominion Parliament, and two of
the *^ fathers of Confederation '' are reported to
have stated that section 51 was deliberately framed
to take from Parliament this dangerous power-
dangerous in the hands of any majority — and to
secure its exercise by an independent authority. If
such was the intention it has been persistently
ignored, and the various redistributions have been
effected by Acts of the Dominion Parliament in the
exercise of its ordinary legislative functions. As a
legal proposition, the power of the Dominion Parlia-
ment to constitute itself the authority by which the
re-adjustment is to be effected cannot be doubted,
whatever may be said of the propriety of so doing.
Under section 40 the power of the Dominion Parlia-
ment to alter electoral districts is clearly established.
Section 51 applies only to the re-adjustment of the
representation of the provinces as hetiveen them-
selves, and has no reference to the boundaries of the
electoral districts in each province, and it would
appear therefore that the re-adjustment under this
section is a mere matter of mathematics. The word-
ing of section 52 ^ bears out this construction, indi-
cating as it does that the essential thing in the
scheme of representation is the proportionate repre-
sentation of the province. The electoral districts
may be altered at any time (section 40), and the total
number of members increased (section 52) by the
Parliament of Canada, ^ ' provided the proportionate
representation of the provinces prescribed by this
Act is not thereby disturbed.'^

* 52. The number of members of the House of Commons may
be from time to time increased by the Parliament of Canada, pro-
vided the proportionate representation of the provinces prescribed
by this Act is not thereby disturbed.

44 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

It has been contended that the Canada referred
to in sub-sec. 4 is the Canada of 1867, and that this
sub-section cannot operate to deprive one of the four
original provinces of any part of its numerical
strength in Parliament unless the proportionate
diminution has relation to the aggregate population
of these four provinces alone ; but this view has been
negatived by the Privy Council. *' The aggregate
population of Canada ' ^ includes that of all provinces
admitted since 1867.^ And Prince Edward Island,
though subsequently admitted, has suffered loss in
her representation.^^

Parliamentary Privileges, etc. (Federal) : —
Power to define the privileges, immunities and
powers (other than legislative) of the Senate and
House of Commons and their respective members is
conveyed by sec. 18, as enacted in 1875 :

[18. The privileges, immunities, and powers 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 Parliament
of Canada, but so that any Act of Parliament of Canada de-
fining such privileges, immunities and powers shall not con-
fer any privileges, immunities or powers exceeding those at
the passing of such Act held, enjoyed and exercised by the
Commons House of Parliament of the United Kingdom of
Great Britain and Ireland and by the mem]>ers thereof.]

In the section as it originally stood the phrase
in italics was " at the passing of this Act," so that
the Parliament of Canada could not go beyond the
privileges, etc., of the British House of Commons as
they stood in 1867.'

'>Re Representation (1905), A. C. 37; 74 L. J. P. C. 9; 33 S. C.
R. 475.

''lb., 33 S. C. R. 594.

'In 1873, the Parliament of Canada passed an Act (36 Vict,
c. 1 ) " To provide for the examination of witnesses on oath by

CONSTITUENT POWERS OF CANADIAN LEGISLATURES. 45

The Privy Council having held that a colonial
assembly cannot legislate as to its own privileges
without express authority from the Imperial Parlia-
ment," it follows that the power of the Parliament of
Canada along this line cannot extend beyond what is
conveyed by this sec. 18 of the British North Amer-
ica Act.

Privileges, etc. (Provincial) : — In this respect
provincial assemblies have really wider powers as
they either retain the full power bestowed upon them
in 1865 by the Colonial Laws Validity Act,^ or have
full powers along this line under item No. 1 of sec.
92* of the British North America Act. The position
is thus stated by their Lordships of the Privy Coun-
cil in the latest case on the subject:''

" According to the decisions which have been given by
this Board there is no doubt the provincial legislature could
not confer on itself the privileges of the House of Commons
of the United Kingdom or the power to punish the breach
of those privileges by imprisonment or committal for con-
committees of the Senate and House of Commons in certain
cases." At the date of the passage of the British North America
Act, the committees of the Imperial " Commons' House " had no
power to examine witnesses upon oath, and for this reason the
Dominion statute was disallowed by the Queen in Council. The
Act had been passed in order to facilitate enquiries into what was
popularly known as the '* Pacific Scandal," and its disallowance
created some excitement. The result of negotiations with the
Imperial authorities was the passage of " The Parliament of Can-
ada Act, 1875" (38 & 39 Vict. c. 38, Imp.), which substituted the
section, as above printed, for the original section 18. It also
expressly validated 31 & 32 Vict. 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. •' The 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.

- See ante, p. 38.

' See ante, p. 38.

* See ante, p. 39.

'Fielding v. Thomas (1896), A. C. 600; 65 L. J. P. C. 103.

46 CANADIAN constitution: imperial limitations.

tempt without express authority from the Imperial legisla-
ture. By section 1 of 38 & 39 Vic. c. 38, which was substi-
tuted for s. 18 of the British North America Act, 1867, it
was enacted. . . . There is no similar enactment in
the British Xorth America Act relating to the House of
Assembly of Nova Scotia, and it was argued, therefore, that
it was not the intention of the Imperial Parliament to con-
fer such a power on that legislature. But it is to be observed
that the House of Commons of Canada was a legislative body
created for the first time by the British North America Act,
and it may have been thought expedient to make express
provision for the privileges, immunities, and powers of the
body so created, which was not necessary in the case of the
existing legislature of Nova Scotia. By s. 88 the constitu-
tion of the legislature of the Province of Nova Scotia was,
subject to the provisions of the Act, to continue as it existed
at the Union until altered by authority of the Act. It was,
therefore, an existing legislature, subject only to the pro-
visions of the Act. By s. 5 of the Colonial Laws A^alidity
Act it had at that time full power to make laws respecting
its constitution, powers and procedure. It is difficult to see
how this power was taken away from it, and the power seems
sufficient for the purpose.

" Their Lordships, however, are of opinion that the Brit-
ish North America Act itself confers the power ,(ii it did
not already exist) to pass Acts for defining the powers and
privileges of the provincial legislature" (citing section 93,
No. 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-Governor'). "It
surely cannot be contended that the independence of the pro-
vincial legislature from outside interference, its protection,
and the protection of its members from insult while in the
discharge of their duties, are not matters which may be
classed as part of the constitution of the province, or that
legislation on such matters would not be aptly and properly
described as part of the constitutional law of the province.-'

Federal Constitution : — In the view of their Lord-
ships the word " constitution '' covers powers and
procedure; but it could hardly be argued that the

CONSTITUENT POWERS OF CANADIAN LEGISLATURES. 47

words ^^ privileges, immunities and powers,'' as used y
in sec. 18 above set out, are wide enough to authorize
changes in the constitutional machinery, properly so
called, of the Parliament of Canada. The word
'' powers " has reference, of course, to powers
other than legislative; such, for example, as
the power to commit for contempt, to compel the
attendance of witnesses and the production of
papers, etc., etc., which may be described as punitive
and inquisitorial powers in aid of intelligent legis-
lation."

It would appear, therefore, that the aid of sec. 5
of the Colonial Laws Validity Act is required only
by the Parliament of Canada, and it may perhaps be
contended that it cannot apply to that body as the
Dominion Parliament was not in existence in 1865.
But the Act seems clearly to be one of those statutes
described as always speaking, and sec. 5, therefore,
it is conceived, would apply to every representative
legislature throughout the Empire to-day.

So far, however, as the British North Americal
Act, 1867, makes provision, express or implied, in
reference to the matters covered by the 5th section
of the Colonial Laws Validity Act, such provision^
would govern. No colonial legislature, it is subr
mitted, can under this section enlarge the sphere ol
its legislative jurisdiction, and, a fortiori, no suctj
authority is conveyed by it to any legislative body^
in Canada, where the field for the exercise of colon-i
ial legislative power is divided in such express terms '
by the British North America Act. The section re^
lates to the organization of the legislative bodies
throughout the colonies, their powers other than>
legislative, and the mode in which their functions

^The Canadian statute on this subject is R. S. C. (1906), c. 10.

48 CANADIAN constitution: imperial limitations.

are to be performed, and lias no relation to their
sphere of authority.^

As already pointed out '^ no general power is ex-
pressly given to the Dominion Parliament to alter
the Federal Constitution, while power to amend
Provincial Constitutions is expressly conveyed by
item No. 1 of sec. 92. The maxim expressio uniiis
exclusio est alterius^ may therefore be invoked in de-
nial of the power of the Parliament of Canada along
this line. The argument does very strongly negative
any power in the Federal Parliament to alter the
Federal Constitution, that being a matter fixed by
the agreement of the federating provinces and ex-
haustively dealt with by the British North America,
Act. But, it is submitted, the Parliament of Canada ^>
may by virtue of the Colonial Laws Validity Act '
legislate as to its own procedure and powers (other
than legislative) except where express or implied
limitation upon such power is imposed by the Act ;
as, for example, by sec. 18.^^ The difficulty, perhaps,
is to distinguish between what is constitutional
legislation properly so called and what relates to
'^ procedure." Lord Davey is reported to have said
during the argument in Fielding v. Thomas ^ when
the point was mooted : ' ' That is a big question that
it would be unwise to express any opinion upon.
There is ^ peace, order and good government.' " — •
the reference being, of course, to those words in sec.
91 in which the legislative power of the Parliament

'Section 92, item No. 10 (c), enables the Parliament of Can-
ada to enlarge its sphere of authority as to the works therein
specified: a marked and oft-criticized exception ito the general
rule.

^ Ante, p. 40.

^See Colquhoun v. Brooks (1888), 19 Q. B. D. 406; 21 Q. B. D.
65; 57 L. J. Q. B. 70, 439.

"See ante, p. 44.

* See ante, p. 45.

CONSTITUENT POWERS OF CANADIAN LEGISLATURES. 49

of Canada is defined. It must be remembered, how-
ever, that those are the words used in very many-
commissions and Imperial Acts to define the legis-
lative power of the colony concerned. Nevertheless,
as stated indeed in the judgment in this very case,^
the decisions of the Board have been uniformly in
denial of the power of a colonial legislature to pass
laws as to the privileges, etc., of the colonial assem-
bly; a fortiori the power to alter the machinery pro-
vided or the sphere of authority prescribed must be
denied.

That the British North America Act does not ^
contemplate Canadian legislation in disturbance of
the federal scheme is accentuated by the prohibition
in sec. 92, No. 1, against provincial legislation in
reference to the office of Lieutenant-Governor.^ An
Act of the Ontario Legislature conferring upon the
Lieutenant-Governor of that province power to re-
mit by Order-in-Council any fine or penalty to which
any person might have become liable through breach
of any provincial law, was held not to offend against
the exception — not being an amendment of the con-
stitution *^ as regards the office of Lieutenant-Gov-
ernor.* Boyd, C, speaking of this exception, puts
the matter thus ;^

'^ That veto is manifestly intended to keep intact the /
headship of the provincial government, forming, as it does,]
the link of federal power; no essential change is possible in'

^ See ante, p. 45.

^ Part II. of this book will deal more fully with the question
as to provincial executive power and the position of the Lieut.-
Governors as depositaries of the Crown's prerogatives in refer-
ence to provincial government.

* Pardoning Power Case, 23 S. C. R. 458; 19 O. A. R. 31; 20 O.
R. 222; 5 Cart. 517. See also the Q. C. Case (1898), A. C. 247;
67 L. J. P. C. 17.

»20 O. R. at p. 247; 5 Cart, at p. 548.

CAN. CON. — 4

50 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

the constitutional position or functions of this chief officer,
but that does not inhibit a statutory increase of duties ger-
mane to the office."

On a literal interpretation of item No. 29 of
sec. 91, power to legislate as regards the ofl&ce of
Lieutenant-Governor is with the Parliament of Can-
ada.* Such legislation, however, would seem to be
repugnant to the spirit of the British North America
Act. The office of Lieutenant-Governor is, as fre-
quently said, a link in the chain of Imperial connec-
tion and the whole spirit of the British North Amer-
ica Act is that this is one of those fundamental mat-
ters in the Canadian political organization which is
matter of Imperial concern.^

« This was, apparently, the view of Sir John Thompson when,
as Minister of Justice, he recommended the disallowance of a
Quebec statute making the Lieut.-Gov. a corporation sole: see
Hodgins' Provincial Legislation, Vol. II., 58.

^See the Liquidators Case (1892), A. C. 437; 61 L. J. P. C.
75; 5 Cart. 1, in which their Lordships say that the Dominion
Government is, in relation to a Lieut.-Govemor, "a governing
body who have no powers and no functions except as representa-
tives of the Crown."

CHAPTER VI.

Imperial Legislation and Consequent Colonial
Limitations: General Principles.

The power of the British Parliament to legislate
for the colonies does not stop short with provision
made for the local legislative machinery and its
range of legislative power. Whether legislating as
the local Parliament of the United Kingdom or in its
Imperial character, the British Parliament is a legis-
lative body with power absolutely unlimited. Other
nations may ignore its Acts and persons abroad may
disregard them; but for the Empire and the Em-
pire's Courts they are the laws which bind. No ex-
ecutive officer, Judge or other, can treat as ultra
vires an Act of the British Parliament. For them
*^ an Act of Parliament can do no wrong, though it
may do several things that look pretty odd.*'^ All
suggested limitations have been swept away and
there is no modern case in which a British Act has
been refused operation as a void attempt at legisla-
tion. The question will come up in a practical form
in a later stage of this book in reference to the ex-
territorial operation of statutes, Imperial and colon-
ial.^ Here the narrower question is as to the power
of the British Parliament to legislate generally, so
far as she may see fit, for all British possessions.

'City of London v. Wood, 12 Mod. 687: Holt, C.J. There is
a valuable review of the old cases in "Judicial Power & Uncon-
stitutional Legislation" by Brinton Coxe^ published after his
death, Philadelphia, 1893: (Kay & Brothers).

'See Chap. VII., post, p. 65.

52 CANADIAJ^ constitution: imperial limitations.

British View.

The British Parliament has often affirmed its
legislative supremacy over the colonies, both by-
direct declaration ^ and by statutes making void re-
pugnant colonial legislation.* Apart from legisla-
tive affirmance, however, the principle is now thor-
oughly established in the constitutional law of the
Empire.

The view of the English Courts may be taken
as expressed by Lord Cranworth in the House of
Lords in 1868 :

" It is certainly within the power of Parliament to make
laws for every part of Her Majesty's dominions."^

Or in the language of the Privy Council in 1891 :

" How far the Imperial Parliament should pass laws
framed to operate directly in the colonies is a question of
policy more or less delicate according to circumstances. No
doubt has been suggested that if such laws are passed they
must be held valid in colonial Courts of law.''^

Colonial View,

Colonial recognition of the principle has been
ample. The only serious question raised has been
as to the power of the British Parliament to tax the
internal trade of the colonies ; but even Franklin ad-
mitted the strict legality of the tax, though stoutly
contending that it was unconstitutional in the British
sense of that term, namely, contrary to the spirit of
the British Constitution under which taxation and

^E.g., 6 Geo. III. c. 11, 12; and see May "Const. Hist, of Eng-
land," 7th ed., vol. iii., p. 349.

*7 & 8 Wm. III. c. 22; 6 Geo. IV. c. 114; 28-29 Vict. c. 63 (the
Colonial Laws Validity Act, 1865; see Appendix).

\Rounedge v. Low, L. R. 3 E. & I. App. 113; 37 L. J. Ch. 454.

^Callendar v. Col. 8ecy. Lagos (1891), A. C. 460; 60 L. J.
P. C. 33.

IMPERIAL LEGISLATION AND COLONIAL LIMITATIONS. 53

representation should go hand in hand."^ By the
celebrated Renunciation Act of 1778, the British
Parliament declared its abandonment of the tax
for revenue purposes ; and although this Act was
powerless to tie the hands of a Supreme legislature,
it represents a rule of policy never since ignored.

No doubt upon the question has ever been ex-
pressed in Canadian cases,^ although, as will appear,
claims have been put forward to the effect that our
Constitutional Acts of 1791, 1840, and 1867, did
justify Canadian legislation repugnant to Imperial
Acts of earlier date than those Acts respectively.
Many cases will necessarily come under review in
dealing, later on, with specific matters governed or
effected by Imperial legislation extending to Canada ;
it will suffice to quote here some passages from a
very able judgment of the late Mr. Justice Burbidge,
of the Exchequer Court of Canada, in which the
general principle is stated:^

. " The supremacy of the Parliament of the United King-
dom of Great Britain and Ireland is not questioned by any
one. All powers exercisable by the Parliament of Canada

' Egerton, Short Hist, of Brit. Col. Policy, 198. "As late as
1758 the Massachusetts Assembly, in defending themselves
against the charge of ignoring British statutes, said : ' The
authority of all Acts of Parliament which concern the colonies
and extend to them are ever acknowledged in all Courts of law,
and made the rule of all judicial proceedings'": lb., 200.

*See (e.g.), Ex p. Renaud, 1 Pug. (N.B.), 273; 2 Cart. 445;
R. V. Coll. of Physicians (1879), 44 U. C. Q. B. 564; 1 Cart. 761;
Smiles v. Belford (1876), 1 Out. App. 436; 23 Grant, 590; 1
Cart. 576; v. Irving, 1 P. E. I. 38 (Peters, J.).

^ Algoma Gent. Ry. Co. \. The King (1901), 7 Ex. Ct. R., at p.
253, et seq. This judgment passed in review before the Supreme
Court of Canada (32 S. C. R. 277), and the Judicial Committee
(1903, A. C. 478; 72 L. J. P. C. 108) and no doubt was sug-
gested as to the soundness of Mr. Justice Burbidge's conclu-
sions on the constitutional question, although his judgment was
reversed on the construction and effect of the Canadian legisla-
tion in question in the case.

54 CANADIAN constitution: impekial limitations.

or by the legislature of any province of Canada are subject
to the Sovereign authority of that Parliament. It has been
contended by some, that since the British North America
Act, 1867, was passed the Parliament of Canada and the
legislature of a province of Canada co-yild, in respect of mat-
ters within their authority respectively, repeal the provi-
sions of an Act of the Imperial Parliament extending to
Canada, but passed prior to 1867; that to that extent at
least the Colonial Laws Validity Act,^^ must be taken to be
repealed or modified by the British North America Act,
1867. . . . The argument by which this view is sup-
ported is entitled to great consideration, but the view has
not found favour with the law officers of the Crown. But
even those who hold this view must strongly concede that
the Colonial Laws Validity Act applies in the case of an
Act of the Parliament of the United Kingdom, extending to
Canada, and passed after the British North America Act,
1867; and that any Canadian legislation on the subject re-
pugnant thereto is void. ... As long ago as 1778, it
was declared by an Act of Parliament^ that thereafter the
King and Parliament of Great Britain would not (with an
exception not now material), impose any duty, tax or assess-
ment whatever, payable in any of His Majesty's colonies in
North America or the West Indies. And the policy of the
Imperial authorities has been to le^ve the self-governing
colonies free and uncontrolled in matters relating to taxa-
tion within such colonies respectively. . . . But the
practical independence of the Parliament of Canada and of
the provincial legislatures in that respect, rests upon no un-
alterable constitution or statute, but upon the wisdom of
those who control the destinies of the Empire. In reality
the power of the Imperial Parliament is as great and its
supremacy as absolute over the subject of taxation within
Canada as it is over any other subject committed by the
British North America Act, 1867, to the Parliament of
Canada or to the provincial legislatures."

As then the British Parliament may legislate Im-
perially, that is to say, may extend its enactments to

"28-29 Vict. c. 63 (Imp.), printed in Appendix.
U8 Geo. III. c. 12 (Imp.).

IMPERIAL LEGISLATION AND COLONIAL LIMITATIONS. 55

the colonies generally or to some one or more of
them in particular, it is important to know when a
British Act does so extend. Prima facie the British
Parliament must be taken to legislate for the United
Kingdom only,^ and there must be manifest indica-
tion of its intent in that respect if a statute is to be
read as extending to a colony. This was until 1865
a question of construction merely, unaided by legis-
lative enactment. In that year, however, was passed
the Colonial Laws Validity Act, to which frequent
reference has already been made.^ It provides that

" an Act of Parliament or any provision thereof shall . . .
be said to extend to a colony when it is made applic-
able to such colony by the express words or necessary intend-
ment ^* of any Act of Parliament ; "

that is to say, of the Act itself, as is the usual case,
or of some other Imperial Act. This, however, is
really no new rule, as the cases decided before the
Act laid down the same rule of construction.

A note of warning should perhaps be here
sounded. There are in force in the various Canadian
provinces and in other colonies many English and
British statutes, which as part of the law of England
were carried by emigrating colonists to their new
homes across the seas, or which by the action of the
home authorities or by colonial adoption have been
established as the basic law of the colony.* These

2 See cases noted, post, p. 69, et seq.

^29 & 30 Vict. c. 63 (Imp.); printed in Appendix. See ante,
p. 38, et seq.

'" On the question of " necessary intendment " see Callendar
V. Col. Secy. Lagos (1891), A. C. 460, referred to' post, p. 248.

*In this book statutes of this kind will be indicated thus:
(Br.). Strictly speaking, statutes of date prior to the Union
with Scotland, should be called English statutes, and those passed
since 1800, statutes of the United Kingdom. But (Imp.) and
(Br.), will suflSce to distinguish those statutes which are truly
Imperial from those which, when passed, were intended to have
local operation merely in the British Isles.

56 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

are not Imperial statutes in the true sense. They
were passed as local English laws with no intended
reference to the colonies. They are necessarily of
date anterior to the introduction of English law
into the particular colony concerned. They are in
force only by the sufferance of the colonial legislat-
ure which may freely repeal or amend them either
directly or by repugnant legislation so far as re-
lates to their operation in the colony. In other words,
they constitute no limitation upon colonial legislative
power. For this reason they must be left for dis-
cussion at a later stage.'*^ At present the enquiry is
as to limitations upon colonial legislative power
arising out of the legislative sovereignty throughout
the Empire of the British Parliament acting with
intent as an Imperial Parliament.

An Act which is truly Imperial, that is to say,
which is made applicable to a colony by express
words or necessary intendment, is in force in
such colony propria vigore as an enactment of
the Sovereign legislature of the Empire. Its
date is immaterial, so long as it is not repealed.
It cannot be repealed or amended by the colon-
ial legislature;^ and any colonial legislation re-
pugnant to it is, to the extent of such repugnancy,
absolutely void and inoperative.

It necessarily follows that any colonial legisla-
tion inconsistent with an Imperial statute extending
to the colony must be inoperative. In the old colon-
ial charters,^ and the earlier Constitution Acts"^ for

*" See post, chap. XIV.

°As will appear, there are suggestions to the contrary: see
post, p. 60 et seq.

« See Egerton's " Short Hist, of Brit. Col. Policy," pp. 17, 27,
etc.; Phillips v. Eyre (infra).

''E.g., 5 & 6 Vict. c. 76, s. 29 (New South Wales). Compare
the Constitutional Act (Canada) of 1791, 31 Geo. III., c. 31, and
the Union Act (Canada) of 1840, 3 & 4 Vict. c. 35.

IMPERIAL LEGISLATION AND COLONIAL LIMITATIONS. 57

some of the colonies, the legislative power conferred
was hedged about with some such proviso as that
no law passed by the colonial assembly should be re-
pugnant or contrary to the law of England,^ or (af-
firmatively) that the laws should be ^^as near as may
be agreeable to the laws and statutes of this our
Kingdom of Great Britain. ' ' And the earlier Imper-
ial Acts on the subject of repugnancy declared void
^* to all intents and purposes whatsoever ^^^ colonial
legislation repugnant to Imperial statutes extending
to the colonies. These very general and sweeping ex-
pressions would, if applied literally, confine colonial
legislative power within very narrow limits ;^^ a
statute might be held inoperative as contrary to
the spirit of English law, statutory or common, and
repugnancy in one portion even would render a
whole statute void. . To remove these difficulties the
Colonial Laws Validity Act, 1865,^ 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 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 regula-
tion, and shall, to the extent of such repugnancy, but not
otherwise, be and remain absolutely void and inoperative.

" III. Xo colonial law shall be, or be deemed to have
been, void or inoperative on the ground of repugnancy to

*See Becquet v. McCarthy^ 2 B. & Ad. 951; and Phillips v.
Eyre (1870), L. R. 6 Q. B. 20; 40 L. J. Q. B. 28, in both of which
cases colonial legislation was attacked on the ground of repug-
nancy to " natural justice." The same limitation has been sug-
gested as applying even to Imperial legislation: 12 Rep. 76. See
Dicey, " Law of the Const.," p. 59, note 1 ; also post, p. 87.

»7 & 8 Wm. III. c. 22; 6 Geo. IV. c. 114.

^''Reg. V. Marais (1902), A. C. 51; 71 L. J. P. C. 32; and see
the argument of defendant's counsel in Phillips v. Eyre (uhi
supra).

'28 & 29 Vic. c. 63 (Imp.). See Appendix.

58 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

the law of England unless the same shall be repugnant to
the provisions of some such Act of Parliament, order, or
regulation, as aforesaid."

These sections are retrospective and their effect
is : (1) The repugnancy to the law of England which
is to make void a colonial Act must be repugnancy
to an Imperial statute extending to the colony or an
Order-in-Council passed under the authority of such
an Imperial statute, and ('2) a colonial Act repug-
nant in part only is to be void * * to the extent of such
repugnancy and not otherwise. ' '

Commenting on this Act, Willes, J. (delivering
the unanimous judgment of the seven Judges of the
Exchequer Chamber in a case^ involving the validity
of an Act of Indemnity passed by the assembly of
Jamaica), said:

"It was further argued that the Act in question was
contrary to the principles of English law,^ and therefore
void. This is a vague expression and must mean either con-
trary to some positive law of England or to some principle
of natural justice. ... It is clear that the repugnancy
to English law which avoids a colonial Act means repug-
nancy to an Imperial statute, or order made by .the author-
ity of such statute, applicable to the colony by express words
or necessary intendment; and that, so far as such repugnancy
extends and no further, the colonial Act is void."

And, in 1902, Lord Halsbury (in delivering the
judgment of the Privy Council in a case involving
the validity of an Act of the legislature of Natal,
which took away, in certain cases, the right to trial
by jury), used much the same language,* adding:

" The obvious purpose and meaning of that statute " —
the Colonial Laws Validity Act — " was to preserve the right

^Phillips v. Eyre (1870), L. R. 6 Q. B. 20; 40 L. J. Q. B. 28.

^ Because ex post facto legislation.

*R. v. Marais (1902), A. C. 51; 71 L. J. P. C. 32.

IMPERIAL LEGISLATION AND COLONIAL LIMITATIONS. 59

of the Imperial legislature to legislate even for the colony
although a local legislature has been given, and to make it
impossible, when an Imperial statute has been passed ex-
pressly for the purpose of governing that colony, for the
colonial legislature to enact anything repugnant to an express
law applied to that colony by the Imperial legislature itself."

As colonial legislation which runs counter to an
Imperial statute extending to the colony is to be read
subject to the Imperial enactment, and is void to
the extent of its repugnancy thereto * * but not other-
wise,'' it follows that Canadian legislatures, each
within its sphere, may legislate upon the subject
matter of Imperial statutes so long as the Canadian
Acts are not inconsistent with the Imperial.^ For
example, it was held by the Supreme Court of
Canada, that a Canadian statute, giving jurisdiction
in revenue cases to a Vice- Admiralty Court, sitting
in Canada but constituted under Imperial legisla-
tion, was not repugnant to such legislation." Four-
nier, J., after quoting sec. 2 of the Colonial Laws
Validity Act, 1865 (as above) puts the matter thus:

" Does not this provision which applies to future as well
as to existing legislation clearly recognize the power of
colonial legislatures to implement or add to (ajouter) the
provisions of Imperial enactments? Does it not also declare
that such added provisions shall have their full effect so long
as they are not contradictory of the Imperial enactment?
To the enumeration of the powers mentioned in the Act of
ISeS,*^ the Tederal Parliament has added another subject of
jurisdiction. This provision not being in conflict with any
of those of the Imperial Act, neither altering nor modifying

^Atty.-Gen. v. Flint (1884), 16 S. C. R. 707; 4 Cart. 288, per
Fournier, J.: Allen v. Hanson (1890), 18 S. C. R. 667; 4 Cart.
470; The Farewell, 7 Q. L. R. 380; 2 Cart. 378; Smiles v. Belford,
1 O. A. R. 436; 1 Cart. 576.

"^Atty.-Gen. {Can.) v. Flint, 16 S. C. R. 707.

^This i8 evidently a misprint for 1863. The reference is to
26 & 27 Vict. c. 24 (the Vice-Admiralty Courts Act, 1863).

60 CANADIAN" constitution: imperial limitations.

any of them, should be held within the competence of the
Federal Parliament under the above cited clause of the
Colonial Laws Validity Act, 1865/' «

This phase of the subject will, however, appear
again when some of the specific matters governed
or affected by Imperial legislation are under discus-
sion.

A colonial legislature cannot repeal or amend
Imperial Acts extending to a colony^ unless empow-
ered so to do by express permissive Imperial legisla-
tion.^^ This would appear to be the clear result
of the authorities. But it is remarkable that at each
step in Canada 's constitutional progress it has been
contended that the Imperial Parliament in legalizing
such step had surrendered, so far as related to
Canada, some portion of its paramount legislative
authority ; that, at least so far as concerns Imperial
Acts of express colonial application but of date
anterior to the ' ^ constitutional ' ' Act then in force,
the power to amend or repeal had been conferred
upon Canadian legislatures. To this extent the con-
tention has received the support of individual
Judges,^ but the decisions of the Courts have been
uniformly adverse.

In the Maritime Provinces, where Imperial Acts
relating to navigation were frequently invoked in the

^ This is a translation, a little free at times but precise in the
material points.

^ Algoma Central Ry. Co. v. Reg. (1902), 7 Exch. Ct. R. 239;
Metherell v. Coll. of Phys. (1892), 2 B. C. 189; Ex p. Renaud, 1
Pug. (N.B.) 273; 2 Cart. 445; Reg. v. Coll. of Phys. (1879), 44 U. C.
Q. B. 564; 1 Cart. 761; Smiles v. Belford (1876), 1 O. A. R. 436;
23 Grant 590; 1 Cart. 576; Craw v. Ramsay, Vaugh. 292.

^^E.g., 9 & 10 Vic. c. 94 (empowering the colonies to repeal Im-
perial Tariff Acts), and the various Admiralty and Merchant
Shipping Acts.

^ Macaulay, J., in Gordon v. Fuller, infra; Draper, C.J., in Reg.
V. Taylor, infra. See also the judgment of Gwynne, J., In re
Bigamy sections of the Criminal Code, 27 S. C. R. 461.

IMPERIAL LEGISLATION AND COLONIAL LIMITATIONS. 61

Vice-Admiralty Courts, 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 question, effect was given to their
provisions. The view, however, was pressed in argu-
ment 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, should be given
effect in preference to such Imperial Act.^ But no
judicial utterance supports such a view.

In a case^ in the Courts of Upper Canada an affi-
davit was tendered in proof of a debt sued for by a
British merchant, and reliance was placed on an Im-
perial statute of Geo. II., expressly providing for
such method of proof in colonial actions. It was
contended that the Upper Canadian assembly had
repealed the Imperial Act by legislation inconsistent
with it. The legislative power of the assembly rested
then upon the Constitutional Act, 1791, which pro-
vided that all laws passed by the assembly should be
valid and binding if not repugnant to the Act itself.
Macaulay, J. (afterwards C.J.), upheld this conten-
tion, saying, ^' I cannot but regard the provincial
statute, when duly passed, of equal force within the
province with British statutes." The question in
his view, therefore, would be one of date as between
the two conflicting statutes, an Imperial and a pro-
vincial; whichever was the later would prevail.*
The Imperial * ^ repugnancy ' ' statute then in force'*
declared null and void to all intents and purposes

2 The Bermuda, Stewart, 245.

^Gordon v. Fuller (1836), 5 U. C. Q. B. (O.S.) 174.

*See Reg. v. Sherman, 17 U. C. C. P. 167; Reg. v. Slavin, ib.
205.

«6 Geo. IV. c. 114; passed, it will be noticed, after the Consti-
tutional Act, 1791.

62 CANADIAN CONSTITUTION: IMPERIAL LIMITATIONS.

whatsoever all colonial laws repugnant to Imperial
Acts ^ ^ made or to be made ' ' extending to the colon-
ies. This statute, Macaulay, J., thought, applied only
to laws passed in the old colonies under government
by commission or charter, and not to the Acts of a
legislative assembly created by Imperial legislation.
The majority of the Court, however, held otherwise.
Adopting the view that the ^^ repugnancy " Act just
mentioned applied to all colonial legislation, Eobin-
son, C.J., pointed out that nothing could be more
repugnant to an Imperial Act than an attempted
repeal of it.

Again, it was seriously argued^ that, in spite of
express words extending it to all parts of the Em-
pire, the Imperial Foreign Enlistment Act of 1819
was not in force in Canada, because Canada had at
the date of its passage a local legislature. This view
was negatived by the judgment of the Court and the
enlistment in Canada of recruits for the American
army held to be unlawful.

Somewhat the same views have been advanced
since the British North America Act became law.
The word ^' exclusive '^ in the section (91) declaring
the legislative power of the Dominion Parliament
has been adverted to^ as ^^ intended as a more defi-
nite or extended renunciation on the part of the
Parliament of Great Britain than was contained in
the Eenunciation Act of Geo. III,^ or the Colonial
Laws Validity Act of 1865. '^^ But this view has not
met with support in later cases.^^ The same word

^Reg. V. Schram (18U), 14 U. C. C. P. 318. See also the in-
effectual argument of counsel in Bartley v. Hodges, 1 B. & S. 375;
30 L. J. Q. B. 352.

' By Draper, C.J., in Reg. v. Taylor, 36 U. C. Q. B. at p. 220.

« 18 Geo. III. c. 12. See ante, p. 54.

^ See ante, p. 57. The Act is in the Appendix.
^"Smiles v. Belford (1876), 1 O. A. R. 436; 1 Cart. 576; Reg. v.
Coll. of Phys. (1879), 44 U. C. Q. B. 564; 1 Cart. 761; Tai Sing

IMPERIAL LEGFISLATION AND COLONIAL LIMITATIONS. 63

occurs in sec. 92, which sets forth the matters for
provincial legislation, and it is used in both sections
to describe the Dominion and provincial spheres as
mutually exclusive.

It has, however, been strongly urged officially that
the British North America Act, 1867, has so far
modified the Colonial Laws Validity Act, 1865, in its
application to Canada that Imperial Acts extending
to Canada, but of date prior to 1867, maybe, in effect,
repealed or amended by Canadian legislation,^ but
this view has not met with favour at the hands of the
Imperial law officers of the Crown," and seems to be
entirely opposed to the strong current of English
and Canadian authority.

As late, however, as 1905, the Supreme Court of
Canada intimated that :

"It is still open for discussion as to whether the Parlia-
ment of Canada, having been given exclusive jurisdiction to
legislate upon the subject of copyright, may not by virtue
of that jurisdiction be able to override Imperial legislation
antecedent to the British North America Act, 1867. . . .
We wish to leave the question open so far as this Court is
concerned." ^

If open as to copyright, then it must also be open
to all subjects specifically enumerated in sees. 91

7. McGuire (1878), 1 B. C. 107; Metherell v. Coll. of Phys. (1892),
2 B. C. 189. In Smiles v. Belford, Moss (Thos.), J. A. — afterwards
C.J.O. — expressed his belief that Draper, C.J., had not deliberately
entertained the view indicated above, but had merely thrown out
a suggestion in that direction. See also opinion of Sir Roundell
Palmer and Sir Farrer Herschell: Dom. Sess. Pap., 1890, Vol. 15,
No. 35.

^Report of Sir John Thompson, Minister of Justice, in Dom.
Sess. Pap., 1890, Vol. 15, No. 35, on the copyright question. See
also Dom. Sess. Pap., 1892, Vol. 12, No. 81, and 1894, No. 5.

'lb. See also Algoma Central Ry. Co. v. Reg. (1902), 7 Ex.
Ct. Rep. 239; passage quoted ante, p. 54.

»/mp. Booh Co. V. Blach (1905), 35 S. C. R. 488. This judg-
ment was affirmed in the Privy Council, but with no reference to
the question mooted in the Supreme Court of Canada.

64: CANADIAN^ CONSTITUTION : IMPEKIAL LIMITATIONS.

and 92 of the Act, for the word * ^ exclusive ' ' is
used in both.*

It would seem almost needless to add that the
repeal by the British Parliament of an Imperial Act
extending to a colony is operative in such colony. It
was so decided in an old case^ in which an effort
was made to subject the Bank of Upper Canada to
the disabilities imposed by the English Bubble Acts.
The earlier Act had been expressly repealed in 1825,
thus wiping out both Acts as the later Act was ^^ a
mere supplement ' ' to the earlier. By reason of such
repeal the Acts were held to be no longer in force in
Canada. A more recent and striking authority^
held that where an Imperial Act extending to a col-
ony has been amended by a subsequent Imperial Act,
not directly but by implication, such amendment is
operative in such colony.

This chapter deals only with the general prin-
ciples as to the operation of Imperial Acts extending
to a colony and their effect in limiting the field open
to the colonial legislature. In later chapters specific
topics covered or affected by existing Imperial legis-
lation will be dealt with.

* See ante, p. 62.

^Bank of U. C. v. Bethune, 4 U. C. Q. B. (O.S.), 165.

«i2. V. Mount (1875), L. R. 6 C. P. 283; 44 L. J. P. C. 58.

CHAPTER VII.

EXTERRITOKIALITY.

Application of the Doctrine.

(a) To British legislation,
(h) To colonial legislation.

The modern conception of a State is of an organ-
ized society identified with, occupying, and control-
ling a defined portion of the earth's surface; and
under normal conditions no State may execute its
laws within any other than its own territory, except
by permission of the sovereign authority of such
other territory. ^' By treaty, capitulation, grant,
usage, sufferance, and other lawful means,'' the
British Crown has jurisdiction within divers foreign
countries, chiefly Oriental, and the exercise of this
jurisdiction is regulated by an Imperial statute, the
Foreign Jurisdiction Act, 1890.^ And where foreign
territory such, for example, as in parts of the Afri-
can continent, is not subject to any regular govern-
ment with which a treaty might be made, the Crown
is given jurisdiction by that Act ^* over His
Majesty's subjects for the time being resident in or
resorting to that country. "^

In addition to this exercise of jurisdiction in
Oriental states and barbarous lands. Great Britain
has assumed to exercise jurisdiction to a limited
extent upon the high seas, both over British sub-
jects and foreigners, even when not upon British

^53 & 54 Vict. c. 37 (Imp.). The phrase quoted in the text
is taken from the recital to this Act.

= See R. V. Crewe (1910), 2 K. B. 57G; 79 L. J. K. B. 874.

CAN. CON. — 5

66 CANADIAN constitution: imperial limitations.

sMps.^ Again, modern diplomacy recognizes that
it is just that a State should exercise some measure
of protection and control over its members when
abroad, not only in their interest, but in its own;
and accordingly international usage, often crystal
lized in treaties, permits certain agents of a State —
ambassadors, consuls, etc. — to exercise jurisdiction
and perform executive acts within the limits of an-
other State; such, for example, as the maintenance
of discipline upon British ships in foreign ports, the
celebration of marriages under the Foreign Mar-
riage Act, 1892,^ and the performance of various con-
sular duties.

But, except as above indicated, there can be no
exterritorial execution of the laws of any State ; and
if the phrases ^ * exterritoriality of a law ' ' and ' ' ex-
territorial operation of a law ^' are to be limited to
the idea of executive action abroad, the subject
would be one of comparatively narrow range so far
as the government of Canada or of any other Brit-
ish colony is concerned. Except as to the exercise of
jurisdiction upon the high seas or in barbarous lands
without settled government, the matter is one of ar-
rangement, express treaty or tacit understanding,
with foreign powers worked out by Imperial legisla-
tion and executive action; and even as to those ex-
cepted matters, the ground is largely covered by
Imperial treaty and legislation.

The word ^^ exterritoriality " is commonly used,
however, to characterize the operation of laws which
purport to determine the effect to be given in the
Courts and within the territory of the enacting State
as against persons without the State or in respect to
property situate or transactions happening abroad.

' Her jurisdiction over British ships is, of course, a recog-
nized territorial jurisdiction.
* 55 & 56 Vict., c. 23 (Imp.).

EXTERRITORIALITY. 67

In this sense, international law recognizes that exr
territorial effect should often be given to the laws
of a State in reference to foreign persons and prop-
erty and to many acts done and suffered abroad ; and
to a greater or less extent the municipal laws of Eng-
land and her colonies embody the same principle.
To take a familiar example : a conveyance of land in
any Canadian province must conform to the laws of
that province wherever the owner of the land may
reside or wherever the documents may be executed;
in other words, one generally recognized rule of in-
ternational law is that the lex rei situs should govern
all transactions about land. And so as to succession :
the lex domicilii of the deceased governs, speak-
ing generally, the distribution of his personal estate,
no matter where he may have died or where the
assets may be. British jurisprudence, again, treats
crime and the jurisdiction over crime as local, and
considers that the nature and quality of an act, so
far as penal consequences are to follow, should be
determined by the law of the place where the act is
done; and British legislation in the main has been
framed upon this principle. Even as to British sub-
jects the British Parliament has very seldom under-
taken to affix criminal character to acts committed
by them within foreign territory f and still less fre-
quently, as will appear, has legislation of that char-
acter been attempted in regard to foreigners without
the realm.

The constitutional problems which arise may be
shortly stated: (1) Is there any limitation upon the

' England and the United States differ in this respect from
those continental states of Europe governed by the principles of
the civil law. In these latter, subjection to the home law is treated
as a matter of race-nationality; and because they themselves
undertake to punish theii citizens for crimes done abroad, they
object to extraditing them: Wheaton, International Law, 4th
Eng. ed., 183.

68 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

power of the Parliament of the United Kingdom
to determine as she will the operation to be given
within the Empire to her laws as they may regard
persons, property, and acts without the Empire?
If there be any such limitation, it would naturally
follow that a colonial legislature would lie under
the same disability. (2) If there be no such limita-
tion in the case of the British Parliament, does
the converse proposition hold good? or, on the con-
trary, is a colonial legislature subject to some con-
stitutional disability along this line arising from the
colonial status?

To clear the ground: the operation within the
colonies of Imperial legislation has nothing to do
with exterritoriality so far as concerns the ques-
tion as to the existence of a constitutional limitation
upon the power of the British Parliament; for the
territory within the ken of the Parliament of the
United Kingdom when legislating Imperially is the
Empire. The question now is as to legislation which
purports to determine what results shall follow
within the Empire or colony as to persons, pro-
perty, and transactions beyond the geographical
bounds of the Empire or colony, as the case may be.

Then again, the distribution of legislative power
in Canada between the Federal Parliament on the
one hand, and the provincial legislatures on the
other, may be here disregarded. In principle, the
question is the same as to each: Is the Parliament
of Canada, or is a provincial legislature, making laws
each in relation to the subjects committed to its jur-
isdiction, debarred wholly or in part from enacting
what results shall follow in Canada or in the par-
ticular province from acts done, or as to persons
and property, without their respective boundaries?

To still further clear the ground, certain recog-
nized canons of construction, which are applied to

EXTERRITORIALITY. 69

Acts of Parliament in determining their territorial
scope should be, strictly speaking, eliminated; be-
cause the subject under discussion is as to consti-
tutional limitations and not as to restrictive inter-
pretation. But a consideration of these canons of
construction will, it is conceived, disclose that as re-
gards Imperial legislation, they are not founded
upon any real constitutional limitation of legislative
power, but that they are based upon considerations
of policy,* of what should be taken to be the intention
of a legislature presumably desirous of paying due
regard to recognized principle of international law,
and of being fair and reasonable toward foreigners.
And if this should appear to be the true position as
to the British Parliament, is there something in-
herent in the colonial status which as to all or some
of these canons of construction makes them constitu-
tional limitations upon colonial legislative power!

Territorial Scope of Statutes: Canons of
Construction :

The question as to the territorial area within
which a statute is to have application, the persons,
property and acts to be affected thereby, is one to
be decided upon the construction of the Act itself,
read in the light of certain well established presump-
tions against undue extension. As between Great
Britain and her colonies, as has already been
pointed out, the Parliament of the United Kingdom
must be taken, prima facie, to legislate only for the
United Kingdom.'' An Act of that Parliament does
not extend to a colony unless '' made applicable to
such colony by the express words or necessary in-
tendment '' of the Act itself, or of some other

"Routledge v. Low (1868), L. R. 3 E. & I. App. 113; 37 L. J.
Ch. 454.

70 CANADIAN constitution: imperial limitations.

Imperial statute;^ and not less express, one would
naturally infer, should be the words or not less
clear should be the necessary intendment to warrant
the application of a British statute to persons, pro-
perty, and acts beyond the precincts of the Empire.

Laws, then, enacted by the Parliament of the
United Kingdom are prima facie territorial; that is
to say, the presumed intent is that general words
should apply only to persons, both British subjects
and foreigners, within the Kingdom; only to pro-
perty situate within its geographical boundaries;
only to acts done or conditions existing within those
boundaries; and only to rights of action to be en-
forced therein. But when statutes come to be ex-
amined it is not often that they can readily be classi-
fied along any such simple clear-cut lines. The one
statute may prescribe acts to be done by certain or
all persons in reference to certain or all property
and may define and regulate the rights of action
(civil or criminal) which are to arise if the law be
broken. Another statute may cover only some one
or more of these elements. For this reason it is
difficult to segregate the authorities along these
simple lines ; but it will be well to keep in view these
various aspects which Acts of Parliament may pre-
sent. It will, it is hoped, become clear as the review
of the leading cases progresses that the presumption
against the exterritorial application of a statute is
strong as to the real subject matter of the legisla-
tion, whether persons, property, acts, or rights of
action, but weak or altogether absent as to ancillary
or, as it were, accidental results.

Eunning through all the cases this doctrine will
be found, that the British Parliament may legislate
freely as to the conduct abroad of British subjects.

^"Colonial Laws Validity Act, 1865" (28 & 29 Vict. c. 63, s.
1). See ante, p. 55.

EXTERRITORIALITY. 71

The executive enforcement of such laws must, of
course, take place within British territory; but it
has always been considered that a foreign power
has no legitimate ground for complaint should Eng-
land see fit to punish one of her own subjects for a
crime (or what would be considered a crime in Eng-
land), committed within the territory of such for-
eign power. And the same idea pervades legisla-
tion as to British ships. The presumption, there-
fore, in favour of strict territoriality gives way
easily before language reasonably indicative of Par-
liament's intention to apply its enactment to British
subjects or British ships wherever they may be.

Personal Laws.

Not many statutes can be found dealing with
persons in a sense detached from all considerations
of property, conduct, and rights. Perhaps the near-
est approach to such legislation which has been
before the Courts upon a question as to its terri-
torial operation is the English Bastardy Act of
1844,^ passed with the object of preventing parishes
from being burdened with the support of illegiti-
mate children. It gave power to justices on sum-
mons duly served to adjudge a man to be the puta-
tive father of a bastard child, and to order him to
pay a weekly sum towards its support. The words
were general, ' ^ any single woman who may be deliv-
ered of a bastard child, ' ' but it was held that the Act
did not apply to a child born out of England, though
the putative father was an Englishman, and the
illicit connection had all taken place in England.^
Where, however, the child was born in England, the
fact that the putative father was an Irishman and
that the illicit connection had taken place only in

«7 & 8 Vict. c. 101 (Eng.).

"/?. V. Blane (1849), 18 L. J. M. C. 216.

72 CANADIAN constitution: imperial limitations.

Ireland did not relieve him from liability, if duly
served with a summons within the justices' jurisdic-
tion/^ The aim of the statute was not punitive as
to the man, but in relief of the mother and, through
her, of the parish; and Cockburn, C.J., thought no
question of exterritoriality was involved.

Under what circumstances a foreign author could
take the benefit of the British Copyright Acts, was
the question before the House of Lords in two well-
known cases. In the first^ it was held that under
the statute of Anne,^ an alien friend not actually in
England at the date of the first publication there of
his work was not entitled to British copyright; in
the second,^ thirteen years later, it was held that
mere presence in any part of the Empire at the time
of the first publication in England was sufficient
under the Copyright Act of 1842,* to entitle an alien
friend to the benefit of the Act. The words used to
designate those entitled to copyright were general,
^^ author '' *' assignee '' and '' assigns, '* in both
Acts. The precise point decided in each case was a
very narrow one, but the discussion ranged over the
entire field, and in the judgments will be found
many statements of the general principles which
should govern the interpretation of British statutes
alleged to extend to foreigners abroad. It may b6
added that the judgments in the later case throw

^"Hampton v. Rickard (1874), 43 L. J. M. C. 133.

Wefferys v. Boosey (1855), 4 H. L. Cas. 815; 24 L. J. Ex. 81.
The action was for infringement of the coipyright in Bellini's
" La Sonnambula."

2 8 Anne c. 19 (Imp.).

^Routledge v. Low (1868), L. R. 3 E. & I. App. 113; 37 L. J.
Ch. 454. " Haunted Hearts," by Maria Cummins, an American
authoress, who crossed to Montreal and stayed there a few days
until her book was published in England.

*5 & 6 Vict. c. 45 (Imp.).

EXTERRITORIALITY. 73

strong doubt upon the correctness of the view taken
by the majority in the earlier case — the minority,
individually counted — as to the principles underly-
ing the legislation as to copyright. Those who looked
upon the Acts as creative of a monopoly at the ex-
pense of the reading public of England, limited that
monopoly to British subjects, including in that term
all who by their bodily presence within England
owed temporary allegiance to British law; while
those who considered that the Acts were framed for
the advancement of learning and that to this end
authors should be encouraged to publish their works
in England by being given a species of property in
them after publication there, placed no territorial
limit upon the general words. Given the right of
property created for the public good there was no
reason why an alien friend, complying with the
terms of the Acts, should not be as free to acquire
such right as to acquire any other personal property
though not resident or even present in England. Or
to express the same idea in its relation to exterri-
toriality, the territorial object of the Act, namely
publication in England for England's good, being
satisfied, there was no reason why regard should be
had to the fact that benefits might accrue to alien
authors abroad.

"The plaintiff/' said Erie, C.J./ "being such assignee,
publishes in England, and after publication in England,
claims the operation of the statute in England to protect
his right there; and in so doing he claims only an intra-
territorial effect."

Maule, J., says :

" By the common law of England aliens are capable of
holding all sorts of personal property and exercising all
sorts of personal rights. Their disabilities in respect of
real property arise out of special laws and considerations

" 24 L. J. Ex., at p. 87.

74 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

applicable to property of that particular kind. So that when
personal rights are conferred and persons filling any char-
acter of which foreigners are capable are mentioned, for-
eigners must be comprehended unless there be something in
the context to exclude them." ®

In the later case Lord Cairns, L.C., speaks of
the Act as intended

"to obtain a benefit for the people of this country by the
publication to them of works of learning, of utility, and of
amusement. . . . There is or may be a benefit to the
author; but it is a benefit given not for the sake of the'
author, but for the sake of those to whom the work is com-
municated ; " ^

and Lord Westbury lays it down^ very emphatically
that as to the incidental results of an Act of Parlia-
ment there is really no presumption against exterri-
torial effect:

" The benefit of the foreign author is incidental only to
the benefit of the English public. Certainly the obligation
lies on those who would give the word ' author ' a restricted
significance to find in the statute the reasons for so doing.
. . . By the common law of England the alien friend
(ami) though remaining abroad may acquire and hold in
England all kinds of pure personal property; and when a
statute is passed which creates or gives peculiar protection
to a particular kind of property, which it declares shall be
deemed personal property, and does not exclude the alien,
why is he to be deprived of his ordinary right of possessing
such property or being entitled to such protection?"

On the other hand, the view of those who looked
upon the Act as an Act for the benefit of authors,

*/?)., p. 88. The idea expressed in this passage appears in
the judgment of Phillimore, J., in Davidsson v. Hill (infra):
" Our Courts are not only open, but open equally to foreigners
as to British subjects, and foreigners who have the benefit of the
English common law have also the benefit of English statutes."

' 37 L. J. Ch., at p. 458.

«/&., p. 463.

EXTERRITORIALITY. 75

may be taken from the judgment of Lord Cranworth,
L.C., in the earlier case:^

"Prima facie the legislature of this country must be
taken to make laws for its own subjects exclusively; and
where, as in the statute now under consideration, an exclu-
sive privilege is given to a particular class at the expense
of the rest of Her Majesty's subjects, the object of giving
that privilege must be taken to have been a national object,
and the privileged class to be confined to a portion of that
community for the general advantage of which the enact-
ment is made. When I say that the legislature must prima
facie be taken to legislate only for its own subjects, I must
be taken to include under the word ' subjects ' all persons
who are within the Queen's dominions and who thus owe to
her a temporary allegiance."

Tax Acts.

There are a number of cases in which the ques-
tion involved was as to the incidence of taxation
under Acts respecting Probate Duty, Legacy Duty,
Succession Duty, and Income Tax; and it will be
found that in all these cases when the real object
intended to be taxed was determined, whether that
object was a person, some species of property, or
some transaction, the presumption as to territorial
operation fixed that real object when stated in gen-
eral terms as intended to be within or associated
with the realm.^^ That the taxation might in its
actual incidence fall upon persons, or be measured
by property, without the realm of itself raised no

* 24 L. J. Ex., at p. 97. He was the only Judge who sat in both
these cases. His judgment is a practical summing up of the
views of the four Judges, the minority out of ten who advised
the House.

^^ The constitutional limitation of the taxing power of a pro-
vince to " direct taxation within the province," has frequently
raised the question, in Canadian cases, as to the real object
aimed at by provincial tax Acts and as to its situs within the
province: see the chapter on Taxation in Part II.

76 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

presumption against it. If the tax were a tax upon
residents there was no very strong presumption
against its being measured by the possessions, both
at home and abroad, of the tax-payer; if the tax
were a property tax the presumption would be
that the property struck at was within the realm,
but there would be no presumption that its owner
should be a resident. As was intimated by the
House of Lords in 1889 ^ it involves no breach of
international duty to tax a resident of England
on the basis of his income from all sources both
at home and abroad and whether he chooses to
have that income sent home to him or not; and the
decision of the Court of Appeal ^ was affirmed upon
a consideration of the context and not upon the
ground taken by Lord Esher, M.K., in the Court of
Appeal that the general words of the schedule to the
Income Tax Act ought to be limited by applying
strictly the presumption against exterritorial opera-
tion.

And so with regard to Legacy, Probate, and Suc-
cession duties, the presumption in favour of territor-
ial limitation might fix the real objective of the Act
— legacies under the will of a person domiciled in
England, the property to which English probate
gives title, and succession under English law — but
would not prevent the tax from having its due effect
because it might perchance bear on persons out of
England or be paid in respect of property abroad.^

^Colquhoun v. Brooks (1889), 59 L. J. Q. B. 53: per Lord
Herschell, at p. 58; per Lord Macnaghten, at p. 62: and see
Blackwood v. R. (infra).

^ 58 L. J. Q. B. 439.

^Arnold v. Arnold (1887), 6 L. J. Ch. 218 (legacy duty):
Thompson v. Advocate General, 12 CI. & F. 1 (legacy duty) ;
Atty.-Genl. v. Napier (1851), 20 L. J. Ex. 173 (legacy duty);
Wallace v. Atty.-Genl. (1866), 35 L. J. Ch. 124 (succession
duty); Atty.-Genl. v. CaTiiphell (1872), 41 L. J. Ch. 611 (succes-
sion duty); Blackwood v. R. (1883), 52 L. J. P. C. 10 (estate
duty in Victoria) : and see R. v. Cotton (1912), 45 S. C. R. 469.

EXTERRITORIALITY. 77

Where provision was made for an abatement
from income tax of the amount of any premium paid
on life insurance effected ' ' in or with any insurance
company, ' ' it was held that an English company only
wag meant*; but the question was really determined
by other words of limitation, though Lord Esher,
M.R., was prepared to put his judgment on a strict
application of the canon of construction.^ The Act,
it may be noticed, was in ease of the tax-payer and
was not in any sense an Act to regulate insurance
companies.

Navigation and Shipping: — How far the Imper-
ial Merchant Shipping Acts were intended to affect
foreign ships and how far the Acts applied to ships
whether British or foreign in respect of their navi-
gation upon the high seas beyond the territorial
boundaries of the Kingdom has been considered in
a series of cases. The legislation was intended prim-
arily for British shipping. ^^ If we were simply
dealing with legislation relating to shipping the
clear conclusion would be that in the first instance
it referred simply to the ships of the nation whose
legislature was passing the Act in question."^ But
some of the provisions of the Acts considered in
these cases were as to the rules to be observed for
the avoidance of collision, and others were in limi-
tation of the liability for damages suffered in colli-
sion to an amount less than the general maritime
law of Europe as recognized in British Courts
would give to the innocent ship.

^Colquhoun y. Heddon (1890), 59 L. J. Q. B. 465 (C.A.).

^Lord Esher, it may be noted, was a strong exponent of the
view that general words in a statute should always be read in
a strictly territorial sense, as his judgment in this case shows ;
but in Colquhoun v. Brooks {uhi supra), the House of Lords did
not adopt his extreme view and thought it was necessary to look
for a limiting context. See ante, p. 76.

""Per Wood, V.C. (afterwards Lord Hatherley, L.C.), in Cope
V. Dohertij (1858), 27 L. J. Ch., at p. 601; 2 DeG. & J. 614.

78 CANADIAN constitution: imperial limitations.

As to the regulations for the avoidance of colli-
sion (commonly known as the *' rules of the road/'
prescribing the course to be steered, the lights to be
exhibited and the signals to be given under varying
conditions) it was held that though they purported
to apply in all cases, they could not be taken as in-
tended to govern the navigation of a foreign ship
except, perhaps, within strictly territorial waters.
Therefore, where a British and a foreign ship met
upon the high seas, even within the three-mile belt
off the English coast, the British statutory regula-
tions would bind neither ship; the decision in such
case had to be based upon what the Priv}^ Council
described as ^' the ordinary rules of the sea,'' i.e.,
the rules laid down by maritime law as recognized in
Admiralty Courts in England.^

Prior to 1862, the clauses limiting liability for
damages done by collision {e.g., to the value of the
ship at fault and its freight, or to a certain sum per
ton of its tonnage) applied in terms to "' the owner
of any sea-going ship. ' ' It was held not to apply at
all in the case of a collision on the high seas between
two foreign ships ;^ nor to the case of a collision
there between a British and a foreign ship so as to
limit the liability of the foreign ship or (as intimated
obiter) of the British ship, because the Act should
not be construed as intended to either favour or
prejudice the foreign ship.^ But where the collision
had taken place within three miles of the British
coast between a British and a foreign ship, the Bri-
tish ship being at fault was held entitled to the bene-
fit of the Act; the position of the foreign ship had

'The Saxonia (1862), 31 L. J. Adm. 201 (P.C.). As is well
known, there are now " International Rules of the Road " adopted
by agreement among maritime powers. See post, p. 221.

^ Cope V. Doherty (supra).

'The Wild Ranger (1862), 32 L. J. Adm. 49.

EXTERRITORIALITY. 79

she been to blame being left in doubt.'^ In 1862 the
Act was amended by substituting for the words in
the Act of 1854 the words ^ ^ the owners of any ship,
whether British or foreign ; ' ' and it was held that the
Act so amended applied to collisions everywhere
and enured to the benefit equally and, conversely, to
the detriment equally of British and foreign ships ;^
and where both ships are foreign the Act applies if
the case is properly before the Court.^ The view
taken before the amendment of 1862 is summed up
by Turner, L. J., in Cope v. Doherty: "' This is a Bri-
tish Act of Parliament and it is not, I think, to be
.presumed that the British Parliament could intend
to legislate as to the rights and liabilities of foreign-
ers.'* But the course of legislation shows that the
attention of Parliament was fixed not so much upon
the fact that the transactions might happen without
the realm as upon the question, a strictly territorial
one, as to the remedy British Courts should atford
when properly seized of the controversy.

And it may further be remarked that the British
Parliament has, apparently, felt little difficulty about
legislating in respect of the doings upon the high
seas, the common ground of all the nations, of Bri-
tish subjects or even foreigners upon foreign ships.^
British ships upon the high seas are, of course, Bri-
tish territory.

"T/ie General Iron, etc., Co. v. Schurmanns (1860), 29 L. J.
Ch. 877. The three-mile belt was held to be " territorial waters "
for the purposes of such legislation; but see R. v. Keyn (1876),
L. R. 2 Ex. D. 152; 46 L. J. M. C. 17.

"^The Amalia (1863), 32 L. J. Adm. 191 (P.O.).

^ " Actions for collision are said to be communis juris and the
Admiralty Court has never refused to entertain an action merely
because both ships were foreign or their owners not British sub-
jects, or because the collision occurred in foreign waters " :
Marsden, " Collisions at Sea," 5th ed., 198. See " The D. C. Whit-
ney," 38 S. C. R. 303; 10 Ex. Ct. R. 1.

'Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60, Imp.), sec.
686, et seq. See post p. 227.

80 CANADIAN constitution: impekial limitations.

Workmen's Compensation Acts: — Certain cases
in which the territorial scope of these Acts was con-
sidered serve, it is conceived, to emphasize that ter-
ritoriality is to be presumed as to the real objective
of a statute, but that the presumption against its
ulterior or incidental results affecting persons or
property or transactions abroad is weak or non-ex-
istent. In one case * it was held that the British Act
has regard to labour conditions in England and does
not cover the case of an accident happening out of
the United Kingdom, although the contract of em-
ployment had been made in England. The general
presumption against exterritorial operation was, it
was considered, fortified by an express provision in
favour of seamen upon ocean voyages in British
ships, affording room for the application of the max-
im expressio unius exclusio est alterius. In another
ease ^ it was held by the Privy Council on appeal
from British Columbia that the Workmen's Compen-
sation Act of that province (the same in general
tenor as the British Act) enured to the benefit of
alien dependants, resident abroad, of a workman
killed by accident in the course of his employment in
the province. Tontalin v. Pearson was approved
but distinguished. The view of the Board is thus
put ^ by Lord Atkinson :

" Here it is not insisted that the provincial statute shall
operate extra-territorially. It is insisted that by its express
words it imposes on the employer a liability to compensate
his workmen for personal injuries by accident arising out
of and in the course of the employment which he carries on,
and in which they work. Where that employment is carried
on in the province of British Columbia, one of the results
of this intra-territorial operation of the statute may pos-

^ Tomalin v. Pearson (1909), 2 K. B. 61; 78 L. J. K. B. 863.
'^Krzus V. Crow's Nest Pass Coal Co. (1912), A. C. 590 ; 81 L. J.
P. C. 227.

« 81 L. J. P. C, at pp. 230-1.

EXTERRITOEIALITY. 81

sibly be that in some cases a non-resident alien may derive
a benefit under it. . . . The employer is, by the terms
of the statute, made liable to pay the compensation in ac-
cordance with the First Schedule. When one turns to that
schedule one finds that in cases where death results from the
injury, and the workman leaves behind him dependants
. . . the amount of the compensation . . . is to be
paid."

This seems to support the view of the Judge of first
instance ^ that the Act was in the nature of compul-
sory insurance at the expense of employers for the
benefit of workmen within the province, the pre-
scribed ^^ compensation '* representing, as it were,
the insurance fund distributable among the depend-
ants of the deceased regardless of their place of
abode.

Lord CamphelVs Act: — Again Lord Campbell's
Act has been held to enure to the benefit of the
vridow and children, resident in Norway, of a Nor-
wegian sailor whose death had been caused by the
Qegligent navigation of a British ship upon the high
eeas.^

^ See YaresicTc v. B. C. Copper Co., 12 B. C. 286.

^Davidsson v. Hill (1901), 2 K. B. 606; 70 L. J. K. B. 788. The
action was brought by the widow for the benefit of herself and
her children, there being no administrator. This seems to be the
only difference between this case and two cases decided by the
Court of Appeal of Manitoba: Couture v. Dominion Fish Co.
(1909), 19 Man. L. R. 65; Johnson v. Can. North. Ry., ib., 179.
The plaintiff in the first case was administratrix under a grant
of letters of administration from the Manitoba Court, and the
action was founded upon the death of the husband in the North
West Territories through the negligence there of the defendants.
It was held that any right of action must rest on the law of the
Territories; that such law, namely, the similar statute there,
vested the right of action in an administrator, who, the Court
held, must be taken to mean an administrator appointed by the
Courts of the Territories; and the action in Manitoba was accord-
ingly dismissed. In the second case, the accident and death

CAN. CON. — 6

82 CANADIAN constitution: imperial limitations.

Penal Laws: Status.

The presumption against exterritorial extension
has been perhaps most rigidly enforced in the con-
Btruction of statutes of a criminal or penal character,
or statutes which, like the English Bankruptcy Acts,
affect the status of individuals. Acts committed by
foreigners are not taken to be covered by such legis-
lation unless the languagcof the Act is absolutely in-
tractable. Perhaps the strongest statement of the
general rule is that of Lord Kussell of Killowen in
a case arising out of the famous '^ Jameson Eaid *'
into the Transvaal Eepublic and involving the con-
struction of the Foreign Enlistment Act, 1870 :^

"Another general canon of construction is thds— that if
any construction otherwise be possible an Act is not to be
construed as applying to foreigners in respect of acts done
by them outside the doininions of the sovereign power enact-
ing. That is a rule based upon international law, by which
one sovereign power is bound to respect the exclusive juris-
diction in its own territory of every other sovereign power
and not to attempt to legislate by law for any portion of
that territory."

In the end it was unnecessary to consider the
application of the Act to foreigners as no evidence

occurred in Ontario, and the plaintiff sued in Manitoba as ad-
ministrator under a Manitoba grant; and the action was dis-
missed upon the same holding as in the earlier case.

It is difficult to reconcile these two decisions with the prin-
ciple upon which Davidsson v. Hill rests, namely, that, given a
right in the deceased, had he lived, to bring action in an English
Court, the widow though an alien non-resident may sue in such
Court. It is true that the right of the deceased, had he lived,
to bring an action in an English Court, might depend on the law
of Norway, the place where the cause of action was assumed to
have arisen, as Mr: Justice Phillimore points out; but if the law
of such place gave a right of action, that action could be brought
In England if the defendants could properly be served with pro-
cess there. And so, it is submitted, the deceased Couture, had
he lived, could have sued in the Manitoba Courts, and, if so, his
administratrix could sue there on the Manitoba statute.

^R. V. Jameson (1896), 2 Q. B. 245; 65 L. J. M. C. 219.

EXTEKRITOKIALITY. 83

was tendered to show that any of the accused were
other than British subjects. But the case bears out
what has been insisted upon in earlier paragraphs
of this chapter that, given a local territorialized sub-
ject matter for a statute to operate upon, the pre-
sumption against its having exterritorial effect in
ancillary matters is weak. This particular statute
provided that if a person without the Queen's license
should in a place within Her dominions prepare or
fit out a hostile expedition against a friendly state
'^ the following consequences shall ensue,'' namely,
that every person engaged in such preparation or
fitting out or assisting in it or aiding or abetting,
counselling or procuring it and every person em-
ployed in any capacity in such expedition should be
guilty of an offence under the Act. The aim of the
Act was to prevent British territory being made the
base for hostile invasion of the territory of a friendly
power and the Act was in terms limited to a pre-
paration or fitting out within the Queen's dominions.
But it was held by Lord Russell of Killowen (Pol-
lock, B., and Hawkins, J. concurring) that a person
might commit the offence of engaging in the prepar-
ation of the expedition or assisting in it, or aiding
or abetting it, although he himself might not be
within the Queen's dominions when he so engages,
or assists, etc. ; and that a person, also, may commit
the offence of taking employment in such an expedi-
tion although he accepts employment in it outside
the limits of the Queen's dominions; in each case at
all events if he were a British subject.

Bankruptcy Acts.

In a series of cases under the Bankruptcy sta-
tutes it has been held that the act of bankruptcy
necessary to give the English Courts jurisdiction
must have taken place in England, and in 1901 these

84 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

cases were reviewed and affirmed in the House of
Lords.^^ The legislation was treated as of a penal
character, affecting the status of the trader declared
a bankrupt under the Act. So far did the presump-
tion extend that although the statute expressly made
certain things acts of bankruptcy ' ^ when committed
out of England/' namely, an assignment for the
benefit of creditors or a fraudulent conveyance, it
was held that these instruments must be instruments
intended to have operation under English law, as for
example an assignment executed abroad by a domi-
ciled Englishman or a conveyance of property in
England fraudulent by the law of England. The
case which went to the House of Lords was of a
trader, non-resident in England but trading there
through agents, who executed in America an assign-
ment for the general benefit of his creditors. It was
held that he could not be adjudged a bankrupt under
the English Acts.

Criminal Law.

Eeferring again to criminal law, the doctrine of
English law is that crime and its punishment is a
local matter and that the nature and quality of an
act is to be determined by the law of the place where
the act was committed. ^* What takes place abroad
cannot, in the eye of our law, be an offence against
our law (unless indeed made so by statute) except
in the one well-known case of piracy jiire gentium.'' ^
Acting on this view the Full Court of British Colum-
bia held that to counsel in Canada the commission
of an act abroad which, if committed in Canada,

''Cooke V. Chas. A. Vogeler Co. (1901), A. C. 102; 70 U J.
K. B. 181.

^R. V. Walkem (1908), 14 B. C. 1 : citing Stephen's History of
the Criminal Law (1883), Vol. II., p. 12, where the point is dealt
with as "a question of the greatest importance and delicacy
which has never yet been judicially decided."

EXTERRITORIALITY. 85

would be a crime is not to counsel the commission of
an offence against the law of Canada, to which alone
the general language of our criminal code is directed.

In a case from New South Wales the Privy
Council had to consider a statute of that colony
which provided that '' whosoever being married
marries another person during the life of the former
husband or wife, wheresoever such second marriage
takes place, shall be liable to penal servitude.*^
Their Lordships held that the word ^' wheresoever ^^
must be read '' wheresoever in this colony;'^ that to
give the word the wider unlimited range, which the
statute upon the bare words would have, would be
'^ inconsistent with the most familiar principles of
international law. '' ^

In an earlier case^ it was held that the statute ^
which imposes a penalty upon persons selling by
' * any denomination of measure other than one of the
Imperial measures ' ' did not apply to a sale, though
made in England, where the measuring was to take
place upon delivery abroad. The object of the Act
was to establish a system of measures for use in
England.

Doctrine of exterritoriality not a constitutional

limitation upon the power of the British

Parliament.

To the modern lawyer familiar with his Dicey it
may seem time wasted to labour further the question
of the legislative sovereignty of the British Parlia-
ment, its power to make laws which British Courts

^Macleod v. Atty.-Genl. (N.8.W.) (1891), A. C. 455; 60 L. J.
P. C. 55. Their Lordships also held that, read in its wider sense,
the statute would be " inconsistent with the powers committed
to a colony " ; as to which the case must be discussed later. See
post, p. 101.

^Rosseter v. Calhman (1853), 22 J. J. Ex. 128.

*5 & 6 Wm. IV., c. 63, s. 6.

86 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

must recognize and enforce as in very trnth the law
of the land, no matter how heedless of the rights of
other nations or of generally recognized principles
of international law such British enactments may be,
or how subversive, it may be, of principles usually
recognized by British law itself as based upon
natural justice. But the question as to the position in
this regard of Canadian and other colonial legisla-
tures is one of such moment to the well-being of the
colonies that it is necessary to get to the bottom of
the matter, if that be possible. Is this doctrine as to
the territoriality of the law of a modern state a mat-
ter of mere restrictive interpretation when applied
to a British statute and a matter of real constitu-
tional limitation when applied to a Canadian enact-
ment! Is a colonial legislature, entrusted with
power to make laws for the peace, order, and good
government of the colony (in so far as that is not
provided for by Imperial Acts of express applica-
tion to the colony) powerless to punish the miscon-
duct of its people abroad? May the British Par-
liament ignore the well-established doctrine of
English law that crime and the jurisdiction over
crime is local, and provide for the trial and punish-
ment in England for acts done abroad even though
the act were no breach of the law of the land where
it took place! ^ and may not a colony do the same?
May it not with a view to excluding undesirables
provide that they will have to answer in the colony "^
for the misdeeds which perhaps may have caused
their migration to the colony? And as to civil rights
accrued abroad, as for example, upon a contract be-
tween foreigners made abroad to be performed
abroad, may the British Parliament, for reasons
touching perhaps the conscience of Englishmen but

'As in R. V. Russell (1901), 70 L. J. K. B. 998.
^ Exclusion or deportation penalizes for acts done abroad just
as clearly as would imprisonment within the colony.

EXTERRITORIALITY. 87

not affecting the validity of the contract abroad, say
that no recovery shall be had in a British Court ? '
And may not a colony say the same?

Dr. Dicey is perhaps the best known modern ex-
ponent of the doctrine of the omnipotence of the
British Parliament f to this extent at least, that no
Court in the Empire can properly decline to enforce
its enactments. Another eminent authority, Sir
Fitzjames Stephen, says that Judges ^^ could not
refuse to put in force '^ an Act, if one were passed,
applying the criminal law of England to the doings
of Frenchmen in France, and giving the Central
Criminal Court jurisdiction in such cases;" while,
on the other hand, another well known writer, Chief
Justice Piggott of Hong Kong, puts the case of an
Act making gambling at Monte Carlo by German
subjects a crime punishable in England, and says
that ** such an Act would be beyond the powers of
Parliament, and further that the Court of Crown
Cases Eeserved would not be slow to say so.'^^^
He cites certain old cases, ^ but discards them
as based on ** too high flown " appeals to
natural justice and the immutable laws of
nature; but, nevertheless, he strongly affirms
the existence of a real constitutional limita-
tion of the power even of the British Parliament.^

But it wilLbe found that there is no reported
decision in modern times in which a British Court

^As for example under the Slave Trade Acts: see Dicey, Con-
flict of Laws, Amer. Ed., 556, et seq.\ or the Acts regarding gam-
bling debts: see Moulis v. Owen, 76 L. J. K. B. 406.

^ Dicey, Law of the Const. There is little reference in it to
reported cases.

^Hist. of the Crim. Law, II., 37.

" " Exterritoriality," p. 42.

^Day V. Savage (1623), Hobart, 87; The Fox, Edward's Adm.
R. 311 (Lord Stowell).

= He relies upon the opinions of Cotton, L.J., and Lopes, L.J.,
in Russell v. Camdefort (1889), 58 L. J. Q. B. 498.

88 CANADIAN CONSTITUTION I IMPEEIAL LIMITATIONS.

has disregarded a British statute as a void attempt
to make law in a matter beyond the jurisdiction of
the legislature.^ British statutes, as we have seen,
have often been held not to apply in a particular
case by reason of the presumption against undue
extension ; and individual Judges have used expres-
sions as to the ^^ right, ^^ the ^^ power,'' and even
the ^ ' jurisdiction ' ' of the British Parliament which,
taken alone, would support an argument in favour
of a constitutional limitation upon the power of
that body. But it will be found upon careful ex-
amination of these dicta that either the words were
used loosely in reference to unsupposable cases or
were used in reference to the executive enforcement
abroad of such enactments. For example that emi-
nent Judge, Dr. Lushington, may be quoted:

" The power of this country is to legislate for its own
subjects all over the world, and as to foreigners within its
jurisdiction, but no further : '^ *

but in a later case he used this unequivocal language :

" If the Act governs the question, and its meaning is
clear, I must obey it, whether it is in conformity with inter-
national law or not, for Acts of Parliament are clearly bind-
ing on the Court : '' ^

and still later :^

^' I have always recognized the full force of this objec-
tion that the British Parliament has no proper authority to

^ See the judgment of Riddell, J., in Smith v. London, 20 Out.
L. R. 133. That learned Judge, in the opinion of the Court of
Appeal, went too far in holding that a legislature of limited
jurisdiction can make ultra vires legislation really operative by
enacting that no Court shall entertain an action to question the
validity of transactions had under the ultra vires legislation;
but apart from this, the judgment contains valuable matter on
the question of the omnipotence of Parliament.

* The Zollverein, 2 Jur. N. S. 429.

'The Wild Ranger (1862), 32 L. J. Adm., at p. 55.

«T/ie Amalia (1863), 32 L. J. Adm. 193.

EXTERRITORIALITY. 89

legislate for foreigners out of its jurisdiction; and I especi-
ally did so in the case of The ZollvereinJ No statute ought,
therefore, to be held to apply to foreigners with respect to
transactions out of British jurisdiction unless the words of
the statute are perfectly clear; but I never said that if it
pleased the British Parliament to make such laws as to for-
eigners out of the jurisdiction Courts of Justice must not
execute them; indeed, I said the direct contrary speaking of
the Court of Admiralty, reserving any particular considera-
tions that might attach to the Prize Court."

In 1879, Brett, L.J. (afterwards Lord Esher)
speaks of ^* the limited power of the legislature of
England to legislate ' ' as to acts done abroad ; '* but
later in the same year he says :

" General words in a statute have never, so far as I am
aware, been interpreted so as to extend the action of the
statute beyond the territorial authority of the legislature.
All criminal statutes are in their terms general; but they
apply only to offences committed within the territory or by
British subjects. When the legislature intends the statute
to apply beyond the ordinary territorial authority of the
country, it so states expressly in the statute, as in the Mer-
chant Shipping Acts and in some of the Admiralty Acts.
If the legislature of England in express terms applies its
legislation to matters beyond its territorial capacity an Eng-
lish Court must obey the English legislature, however con-
trary to international comity such legislation may be." *

In 1900, Lindley, M.E., delivering the judgment
of the Court of Appeal,^ said :

"What authority have we to say that the parties here
are subject to our jurisdiction and that they have committed

^ Supra.

'^Ex p. Blain (1879), 12 Chy. D. 522.

'Niboyet v. Niboyet (1879), L. R. 4 P. D. 20; 48 L. J. P. 1.
See also his judgments in Colquhoun \. Brooks (1888), 21 Q. B.
D. 65; 57 L. J. Q. B. 439; and Colquhoun v. Heddon (1890), 59
L. J. Q. B. 465 (C.A.). And see ante, p. 77.

^In re A. B. d Co. (1900), 69 L. J. Q. B. 375 (Lindley, M. R.,
Rigby & Vaughan Williams, L.J J.) : affirmed in H. L. suJ) nom.
Cooke V. Chas A. Vogeler Co. (1901), A. C. 102; 70 L. J. K. B.
181. See ante, p. 84.

90 CANADIAN constitution: imperial limitations.

an act of bankruptcy? If the Act of Parliament told us
in so many words that we were bound to do so, then we
should be obliged to exercise the jurisdiction."

And in the House of Lords Lord Halsbury
said :^«

" If the law has intended, and has expressed its inten-
tions, that a foreigner may be made a bankrupt under the
circumstances of this case, no Court has jurisdiction to dis-
regard what the legislature has enacted.'^ ^

In conclusion upon this phase of the subject it
may safely be said that there is no constitutional
limitation upon the power of the British Parliament
which any British Court can recognize. So far as-
other nations are concerned, its enactments are of

" 70 L. J. K. B., at p. 184. Lord Davey concurred simpliciter,
and none of the other Lords expressed any dissent from the
proposition as laid down by Lord Halsbury.

^For similar expressions of opinion, see (e.g.):

Per Bramwell, B., in Santos v. Illidge (1860), 8 C. B. N. S,
869; 29 L. J. C. P. 348.

Per Willes, J., in Lee v. Bude, dc, Ry. Co. (1871), 40 L. J.
C. P. 285. It was contended that the Acts upon which the plain-
tiff founded his action had been obtained from Parliament by
fraud. " As to this, I will observe that the Acts are the law of
the land, and that we do not sit as a Court of Appeal from Par-
liament. We have no authority to act as regents over Parlia-
ment, or to refuse to obey a statute because of its rigour."

Per Cockburn, C.J., in R. v. Keijn (1876), L. R. 2 Ex. D. 63;
46 L. J. M. C, at p. 86. This celebrated judgment was concurred
in simpliciter by Lush, J., Pollock, B., and Field, J. The question
was as to the jurisdiction of the Central Criminal Court (without
Act of Parliament) over foreigners in respect of offences com-
mitted on a foreign ship within the three-mile zone off the
British coast. That zone was held by the majority not to be
British territory by English law, either common or statutory.
The decision led to the passage of the Territorial Waters Juris-
diction Act, 1878: see post, p. 243. There is scarcely a hint of
doubt through all the judgments of the power of Parliament to
extend its legislation to the three-mile zone, and the Act of 1878
was passed in direct affirmance of the power. There is no case
throwing doubt upon the validity of the Act.

EXTEREITORIALITY. 91

course inoperative beyond the borders of the Em-
pire,- including within those borders the ^^ floating
islands '' of the British navy and mercantile mar-
ine.^ But if no construction otherwise be possible,
effect must be given by all Courts throughout the
Empire to Imperial legislation in respect of per-
sons, property, and acts, not in an international
sense within the legislative ken of the British
Parliament. Such legislation is, of course, excep-
tional and, comparatively speaking, does not bulk
large on the statute book. Nevertheless there is a
respectable body of legislation of that character,
some of which has already appeared in previous
pages of this book and many instances will appear
later. Here the question is as to the principle in-
volved, as introductory to an enquiry as to the posi-
tion of Canadian legislatures in reference to the
doctrine of exterritoriality.

Colonial Legislation,

Does the doctrine of exterritoriality represent a
constitutional limitation upon the power of a colon-
ial legislature^

The weight of English authority at the present
time is, it is conceived, in favour of the view that
a colonial legislature cannot affix penal consequences
to acts committed without the colony, though such
consequences to the doers of the acts are to be
visited upon them only within the colony, and neces-
sarily, of course, only if they are caught within

^ Subject to what was said ante, p. 65, as to the Foreign
Jurisdiction Act, 1890.

5 See per Cockburn, C.J., in R. v. Keyn (1876), 46 L. J. M. C,
at p. 64; R. v. Anderson, L. R. 1 C. C. R. 161; R. v. Carr, L. R.
10 Q. B. D. 76, And as to the " three miles from shore " zone, see
note (1) ante, p. 90; Direct U. 8. Catle Co. v. Anglo-Amer. Tel.
Co., L. R. 2 App. Cas. 394; 46 L. J. P. C. 71; and post, chap. XII.
on ■' Merchant Shipping."

92 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

the colony;^ and that the limitation applies to
the acts abroad of all persons, British subjects
as well as foreigners, and whether ordinarily
resident within the colony or not. But because
there is weighty authority, both English and
colonial, against the existence of any such limi-
tation and because, it is thought, the law is not so
definitely settled by the judgments of the Privy
Council as to preclude its further consideration by
that Court of last resort for the colonies, it is pro-
posed to examine the authorities with some care.
First, however, some preliminary observations.

The doctrine of exterritoriality is to be found
only in case-law. It rests upon the common law, not
upon statutory enactment. And, as to the colonies, it
may safely be affirmed that neither in the old colon-
ial charters (whether governor's commission, let-
ters patent, or other form of grant of legislative
power) nor in modern constitutional Acts for the
various colonies, nor in the Colonial Laws Validity
Act, 1865, is there any direct reference to such doc-
trine or any expressed limitation along such a line
upon the legislative power conferred. In Canada's
case there is no hint of such a doctrine in the Bri-
tish North America Act, 1867, so far at all events as
the Parliament of Canada is concerned.'^ ^ ^ To make
laws for the peace, order, and good government of
the colony ' ' is the usual form of grant of legislative
power to a colonial assembly; and the very wid^
range covered by these words is emphasized in
several well-known cases."^ It is, however, more to

^Extradition Treaties would obviously be inapplicable.

® In sec. 92, some of the enumerated classes contain the phrase
" within the province," or " in the province," or " provincial," and
much will appear later as to the effect of these phrases.

'Powell V. Apollo Candle Co. (1885), 10 App. Cas. 282; 54 L.
J. P. C. 7; Kiel v. Reg. (1885), 10 App. Cas. 675; 55 L. J. P. C.
28; R. V. Crewe (1910), 79 L. J. K. B. 874, per Kennedy, L. J., at
p. 896; Ashhury v. Ellis (1893), A. C. 339; 62 L. J. P. C. 107.

EXTERRITORIALITY. 93

the purpose here to refer to certain cases in which
the nature and extent of colonial legislative power
is examined not merely generally but in comparison
with that of the British Parliament.

Colonial Legislative Power-. Its Nature.

In the last analysis colonial rights, legally speak-
ing, are held under Imperial grant, and one must
always refer to the colonial *^ Charter '^ — procla-
mation, commission, or Imperial Act — containing
the grant of legislative power, to ascertain its ex-
tent. Beyond the limits therein laid down the power
cannot extend; within those limits it is supreme,
^^ with authority subordinate indeed to Parliament
but supreme within the limits of the colony for the
government of its inhabitants.''^ Speaking of the
Jamaica assembly in 1870, seven Judges of the Ex-
chequer Chamber concurred in this statement :

" We are satisfied that a confirmed Act of the local legis-
lature lawfully constituted, whether in a settled or a con-
quered colony, has as to matters within its competence, and
the limits of its jurisdiction, the operation and force of sov-
ereign legislation, though subject to be controlled by the
Imperial Parliament." ®

This principle is fully recognized in the judg-
ment of the Privy Council in a later case involving
consideration of the position of the legislature in
India.^^ Lord Selborne, delivering the opinion of
the committee, referred to the judgment of the
Court below as in effect treating the Indian legisla-

'Kielley v. Carson (1842), 4 Moo. P. C. 63 (Newfoundland
Assembly).

''Phillips V. Eyre, L. R. 6 Q. B. 20; 40 L. J. Q. B. 28.

^'^ Queen v. Burah, L. R. 3 App. Cas. 889; 3 Cart. 409; followed
in Powell v. Apollo Candle Co., 10 App. Cas. 282; 54 L. J. P. C. 7;
3 Cart. 432; Ashhury v. Ellis (1893), A. C. 339; 62 L. J. P. C. 107;
5 Cart. 636; Riel v. Reg,, 10 App. Cas. 675; 55 L. J. P. C. 24; 4
Cart. 1; Hodge v. Reg. (1883), 9 App. Cas. 117; 53 L. J. P. C. 1;
Liquidators' Case (1892), A. C. 437; 61 L. J. P. C. 75.

94 CANADIAN CONSTITUTION: IMPERIAL LIMITATIONS.

ture as an agent or delegate acting under a man^
date from the Imperial Parliament.

" But their Lordships are of opinion that the doctrine is
erroneous, and that it rests upon a mistaken view of the
powers of the Indian legislature,^ and indeed of the nature
and principles of legislation. The Indian legislature has
powers expressly limited by the Act of the Imperial Par-
liament which created it, and it can, of course, do nothing
beyond the limits which circumscribe these powers. But
when acting within those limits, it is not in any sense an
agent or delegate of the Imperial Parliament, but has, and
was intended to have, 'plenary powers of legislation, as large,
and of the same nature, as those of Parliament itself. The
established Courts of Justice when a question arises whether
the prescribed limits have been exceeded, must of necessity
determine that question; and the only way in which they
can properly do so is by looking to the terms of the instru-
ment by which, affirmatively, the legislative powers were
created, and by which, negatively, they are restricted. If
what has been done is legislation within the general scope
of the affirmative words which give the power, and if it
violates no express condition or restriction by which that
power is limited (in which category would of course be in-
cluded any Act of the Imperial Parliament at variance with
it) it is not for any Court of Justice to enquire further, or
to enlarge constructively those conditions and restrictions." ^

^ " A question came before the law officers of the Crown and
myself, in 1867, as to whether the Indian legislature, by virtue
of the power inherent in Sovereignty, irrespective of Acts of
Parliament, could pass laws binding on native subjects out of
British India; and we were of opinion that, having regard to the
manner in which Imperial legislation had been, from time to
time, applied to the government of India, the extent of the
powers of the legislature of India depend upon the authority
conferred upon it by Acts of Parliament, and we thought it
unsafe to hold that the Indian legislature had an inherent power
to pass such laws. It is, however, right to mention that the then
Queen's Advocate (Sir R. Phillimore), was of a different opin-
ion": Forsyth, 17.

2 Compare with this the language of Marshall, C.J.. in McCul-
lough V. Maryland, 4 Wheat. 421 (U. S. Supreme Ct.)

EXTERRITORIALITY. 95

Again, in 1906, Lord Halsbury said :

" Every Act of the Victorian Council and Assembly re-
quires the assent of the Crown; but when it is assented to
it becomes an Act of Parliament as much as any Imperial
Act, though the elements by which it is authorized are dif-
ferent. If indeed it were repugnant to the provisions of an
Act of Parliament extending to the colony it might be in-
operative to the extent of its repugnancy — see the Colonial
Laws Validity Act, 1865 (28 & 29 Vict., c. 63)— but with
this exception no authority exists by which its validity can
be questioned or impeached."^

To apply the doctrine of exterritoriality as a
constitutional limitation upon the legislative power
of a colonial assembly would seem prima facie to
enlarge constructively their prescribed limitations.
In the absence of express condition or restriction,
the limitation, if it exist, must exist because '^ the
general scope of the affirmative words *' is not suffi-
ciently wide to cover legislation affecting acts done
without the colony, although, just as in the case of
Imperial legislation, no ex-territorial enforcement
of such legislation is provided for or contemplated.

If such legislation, to be Enforced within the
colony, is beyond the general scope of such affirma-
tive words as *^ laws for the peace, order, and good
government '' of the colony, it must be because it
is contrary to some fundamental principle in the
constitution of the Empire that a colonial legisla-
ture should have such a power. Is it because such
a power improperly exercised might lead to trouble
with foreign powers? The Crown in Council

'Webb V. Outrim (1907), A. C. 76, L. J. P. C. 25. In the last
analysis all questions as to colonial legislative power do, perhaps,
resolve themselves into a question of repugnancy either to the
Imperial Act which is the colonial charter (e.g., the British
North America Act), or to some other Imperial Act extending to
the colony; of which something will appear later. See post,
p. 113.

96 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

(Imperial) has power within limits to disallow, and
the Crown in Parliament (Imperial) has power
without limit to override, colonial legislation which
in the opinion of the home authorities might create
friction with other nations ; and these powers would
seem sufficient for the purpose without any con-
structive curtailment by the Courts of the power of
a colonial legislature to pass laws ^^ having the
operation and force of sovereign legislation.'^

It is remarkable that the English opinions and
cases which affirm a constitutional limitation along
this line, while of great weight by reason of the
standing of those whose views are expressed, never-
theless almost entirely fail to set forth any state-
ments of principle or line of reasoning to support
the conclusion reached. In one aspect this may be
considered as an element of additional weight; as
indicative of an opinion that self-evident proposi-
tions were being laid down.

Opinions of Laiv Officers.

The law officers 0/ the Crown in England have,
almost without exception,* taken the view that col-
onial legislatures are under a constitutional limita-
tion along this line. In 1855, this opinion was
given ^ in reference to the assembly of British
Guiana :

'^ We conceive that the colonial leo^islature cannot lesfall

exercise its jurisdiction beyond its territorial limits — three
miles from shore ^ — or, at the utmost, can only do this over
persons domiciled in the colony who may offend against its

* See note, ante, p. 94.

''By Sir J. D. Harding (Queen's Advocate), Sir A. E. Cock-
burn, A.-G. (afterwards Lord Chief Justice of England), and
Sir R. Bethen, S.-G. (afterwards Lord Chancellor Westbury).
Forsyth, 24.

" See note, ante, p. 90.

EXTERRITOKIALITY. 97

ordinances even beyond those limits but not over other per-
sons." '

In 1861, the Parliament of (Old) Canada passed
an Act to give jurisdiction to Canadian magistrates
in reference to certain offences committed in New
Brunswick. This Act was disallowed by order of
the Queen in Council upon the report of the law
officers of the Crown, who advised that ^^ such a
change cannot be legally effected by an Act of the
colonial legislature, the jurisdiction of which is con-
fined within the limits of the colony."^

The Dominion Parliament in 1869 passed an Act
respecting perjury, the third section of which pur-
ported to affix penal consequences to the making
abroad of affidavits for use in Canada. In a des-
patch '-" to the Governor-General, the Colonial Secre-
tary adverted to this section as assuming ^^ to affix
criminal character to acts committed beyond the
limits of the Dominion of Canada,'' and *^as such
a provision is beyond the legislative power of the
Canadian Parliament,'' he suggested amendment*
The Act was amended in the very next session, so as
to limit the operation of the third section to affi-

^St^ong, C.J., criticizes this opinion as uncertain and indeter-
minate, and contrasts it with the opinion referred to in note,
ante, p. 94. He objects particularly to the introduction of the
element of domicile. " Domicile, so far as I have been able to
discover, apart from local residence on the one hand and national
allegiance on the other, has nothing to do with criminal law":
In re Bigamy Sections (1897), 27 S. C. R., at p. 476-7. But,
surely, the close identification with the life of a colony indi-
cated by habitual residence there — the word " domicile " seems
to be used in that somewhat popular and untechnical sense in the
opinion quoted in the text — affords strong moral support, to
say the least, to legislation as to the conduct abroad of such
habitual resident. As to allegiance: see post, p. 166.

« Jour. Leg. Ass. Can., 1862, p. 101.

'Can. Sess. Papers, 1870, No. 39.

CAN. CON. — 7

98 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

davits made in one province of the Dominion for
use in another province.^*^

English Cases Prior to Macleod's Case.

Of judicial opinion in England bearing upon the
question, prior to 1891/ the following instances may
be cited :

In 1851, the Court of Queen's Bench in England
had to consider the validity and effect of an Act of
the New South Wales assembly. An unincorporated
banking association carried on its operations in the
colony and the colonial assembly passed an Act "" for
the benefit of the bank '^ enabling the chairman of
the company to sue or be sued on behalf of the com-
pany. Under this statute a judgment had been re-
covered in the colony against the chairman repre-
senting the company; and an action was brought
upon this judgment in England against a share-
holder resident in England who had not been served
with process in the colonial action. He was held
liable.^

" The colonial legislature, we think, clearly had authority
to pass an Act regulating the procedure by which the con-
tracts of the bank should be enforced in the Courts of the
colony. Nor is there anything at all repugnant to the law
of England or to the principles of natural justice ^ in enact-
ing that actions on such contracts, instead of being brought
individually against all the shareholders in the company,
should be brought against the chairman whom they have

"33 Vict. c. 26 (Dom.), amending 32-33 Vict. c. 23, s. 3.

^ The date of the decision in Macleod v. A.-G. New South
Wales (1891), A. C. 455; 60 L. J. P. C. 55. This is the case upon
which, as will appear, the discussion mainly turns.

^Bank of Australasia v. Nias (1851), 20 L. J. Q. B. 284; coram
Campbell, C. J., Wightman & Coleridge, JJ. The Chief Justice
delivered the judgment of the Court. See also Ashhury v. Ellis,
post, p. 105.

^ See ante, p. 57.

EXTERRITORIALITY. 99

appointed to represent them. A judgment recovered in
such an action, we think, has the same effect beyond the
territory of the colony which it would have had if the de-
fendant had been personally served with process and, being
a party to the record, the recovery had been personally
against him. The Act imposes no new liability upon him
but only regulates the mode in which that liability shall be
judicially constituted. Any specific remedy upon the judg-
ment which might have existed in the colony * cannot be
obtained out of the colony and unless the judgment may be
made the foundation of an action it could not in any manner
be rendered available in this country."

Again, in 1870, in the well-known case against
Governor Eyre already referred to ^ an Act of In-
demnity passed by the legislature of Jamaica re-
lieving the governor and others from all liability
for acts done in the Island in connection with cer-
tain troubles there was held operative in England
to protect the defendant from any action in the
English Courts. The ordinary principle was ap-
plied that a release by the lex loci operates as a re-
lease everywhere ; and colonial legislation along that
line was held to be sovereign legislation as truly as
the legislation of the Imperial Parliament or the
parliament of a foreign state.

Eunning somewhat counter apparently to these
decisions is the judgment of Mr. Justice Chitty in
a case® which came before him in 1885. The Oriental
Bank was in liquidation under a winding-up order
made in England. The colony of Victoria proved a
claim arising out of the deposit of government mon-
ies with the bank in the colony and claimed priority

* This refers to a provision in the Act for the issue of execu-
tion against the individual shareholders; and bears out what has
already been said (ante, p. 95), that executive enforcement abroad
is really out of the question.

'Phillips V. Eyre (1870), L. R. 6 Q. B. 20; 40 L. J. Q. B. 28.
See ante, p. 93.

*In re Oriental Bank (1885), 54 L. J. Ch. 327, at p. 330.

100 CANADIAN constitution: impekial limitations.

as for a Crown debt over the claims of ordinary
creditors. A colonial statute was in force in the
colony which enacted that Her Majesty should not
enforce a demand against a public debtor or ac-
countant or against any of his property in any other
manner than any one subject can enforce a claim
against another subject and his property and shall
have such and the same lien, claim, and rights as
any subject has and can enforce, and no others. Not-
withstanding this wide language, it was held that the
Crown in right of the colony, was not deprived of
its prerogative right to priority in the English liqui-
dation :

" The point is a short one. The Victorian statute is a
mere procedure statute regulating the procedure' by the
Crown in Victoria in respect of Crown debts. The statute
is also a colonial statute and has no force outside the colony.
Section 17 deals with claims of the Crown sought to be en-
forced in the colony and contains nothing which can
be said to operate outside the colony as a waiver by the
Crown of its prerogative. The Crown's jight to sue in this
country and enforce its prerogative can only be taken away
by express words or words of necessary implication and there
is nothing of the kind to be found in the statute. It has
been said that sec. 17 ought to be deemed to be incorporated
in every contract made in the colony; but when so incor-
porated there is no reason why the statute should be inter-
preted as having effect outside the colony." ^

Dealing more specifically with statutes which
purport to affix penal consequences to acts done
abroad, two obiter dicta of their Lordships of the
judicial committee of the Privy Council should be

^ Nothing appears as to any claim by other Victorian creditors.
As to such creditors at least, it would seem difficult to support
the judgment; and the decision, it is submitted with deference,
is not in line with the earlier cases noted in the text. But no
criticism of it appears in any later case.

EXTERRITORIALITY. 101

cited. In 1873, in an extradition case® from the
colony of Hong Kong, this passage occurs :

"Their Lordships cannot assume without evidence that
China has laws by which a Chinese subject can be punished
for murdering beyond the borders of the Chinese territory
a person not a subject of China. Up to a comparatively late
period England had no such laws. Moreover, although any
nation may make laws to punish its own subjects for offences
committed outside its own territory, still, in their Lordships'
opinion, the general principle of criminal jurisprudence ^
is that the quality of the act done depends on the law of the
place where it is done."

It was held, therefore, that there was no evi-
dence that the murder by a Chinese subject of a
Frenchman upon a French ship on the high seas was
a crime against the laws of China and, as such, within
the Extradition Treaty and the colonial ordinance
passed to effectuate the treaty. But earlier in the
judgment it was stated broadly that '^ it was im-
possible that the colonial government could punish
Chinese subjects for acts committed within the ter-
ritory of China.''

Again, in 1875,^^ their Lordships speak of the
Imperial Act of 1849 which conferred upon colonial
Courts jurisdiction to try persons charged with
offences upon the high seas within the jurisdiction
of the admiralty^ as conferring ^* a jurisdiction
which their own legislatures could not confer.''

M,acleod's Case.

In 1891, the case of MacLeod v. Attorney -General
of New South Wales ^ came before the Privy Council

»Atty.-Gen. of Hong-Kong v. Kwok-a-Sing (1873), 42 L. J.
P. C. 64, at p. 70.

® See, however, the note (5), ante, p. 67.
^"R. v. Mount, L. R. 6 P. C. 283; 44 L. J. P. C. 58.
^ See post, p. 234.
» (1891), A. C. 454; 60 L. J. P. C. 55.

102 CANADIAN constitution: imperial limitations.

and their Lordships' decision calls for careful study.
Macleod had been convicted in the colony upon an
indictment which charged him with having married
in the colony in 1872 and with having, '' while he
was so married/' married again in the United
States of America in 1889, his first wife being then
still alive. The indictment contained no allegation
as to the national character of the accused nor as to
his connection through domicile, habitual residence,
or otherwise with the colony ; and this is referred to
in their Lordships' judgment. At the date of the
second marriage a colonial statute was in force in
New South Wales which provided : ^ ^ Whosoever be-
ing married marries another person during the life
of the former husband or wife — wheresoever such
second marriage takes place — shall be liable to penal
servitude for seven years. ' ' As already mentioned,^
the Board applied to this statute the canon of con-
struction against undue exterritorial operation and
read the word ' ^ wheresoever ' ' as meaning ^ ^ where-
soever in the colony;" but the reason given for lim-
iting the prima facie wide natural meaning of the
word ^^ was that with such wide meaning the statute
would be ultra vires. The decision, therefore, can-
not be considered a mere obiter on the question of
legislative power.

" If their Lordships construe the statute as it stands, and
upon the bare words, any person, married to another 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 colony. That seems to their
Lordships to be an impossible construction of the statute;
the colony can have no such jurisdiction, and their Lord-
ships do not desire to attribute to the colonial legislature an

^Ante, p. 85.

3« Compare R. v. Russell (1901), 70 L. J. K. B. 998, referred to
post, p. 110.

EXTEERITORIALITY. 103

effort to enlarge their jurisdiction to such an extent as would
be inoonsistent tvith the powers committed to a coiony, and,
indeed, inconsistent with the most familiar principles of
international law. It therefore becomes necessary to search
for limitations, to see what would be the reasonable limita-
tion to apply to words so general."

Later on, their Lordships reiterate the view that
the statute, read in its wide natural meaning, would
be ultra vires: —

" 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 supposed that it was intended thereby
to comprehend cases so wide as those insisted on at the bar.
it would have been beyond the jurisdiction of the colony to
enact such a law. Their jurisdiction is confined within their
own territories, and the maxim which has been more than
once quoted, ' Extra territorium jus dicenti impune non pare-
tur/ would be applicable to such a case. Lord Wensleydale,
when Baron Parke, advising the House of Lords in Jefferys
V. Boosey,^^ expresses the same proposition in very terse
language. He says (page 926): ^ The Legislature has no
power over any pers-ons except its own subjects — that is, per-
sons natural-born subjects, or resident, or whilst they are
within the limits of the kingdom. The Legislature can im-
pose no duties except on them; and when legislating for the
benefit of persons must, 'prima facie, be considered to mean
the benefit of those who owe obedience to our laws, and whose
interests the Legislature is under a correlative obligation to
protect.' All crime is local. The jurisdiction over the crime'
belongs to the country where' the crime is committed, and,
except over her own subjects, her Majesty and the Imperial
Legislature have no power whatever. It appears toi their
Lordships that the effect of giving the wider interpretation
to this statute necessary to sustain this indictment would be
to comprehend a great deal more than her Majesty's subjects;
more than any persons who may be within the jurisdiction
of the colony by any means whatsoever; and that, therefore,

^^ See ante, p. 72.

104 CANADIAN CONSTITUTION : IMPEKIAL LIMITATIONS.

if that construction were given to the statute, it would follow
as a necessary result that the statute was ultra vires of the
Colonial Legislature to pass. Their Lordships are far from
suggesting that the Legislature of the colony did mean to
give themselves so wide a jurisdiction. The more reasonable
theory to adopt is that the language was used subject to the
well-known and well-considered limitation that they were
only legislating for those who were actually within their
jurisdiction and within the limits of the colony."

This decision must be taken as holding that a
colonial legislature cannot affix criminal character
to acts committed out of the colony by persons other
than British subjects ; and as a strong expression of
opinion obiter against the validity of colonial legis-
lation as to the acts abroad of any person. There is
no suggestion of any such thing as colonial citizen-
ship short of national British allegiance.^'' As will
appear, the Canadian Courts have treated this judg-
ment as binding only to the extent of the actual de-
cision, i.e., as limited to criminal law and to the case
of foreigners without the colony, and as leaving
open the question as to British subjects whether
such by birth or naturalization and whether (in the
latter case) naturalized under British or colonial
Acts.

But the most striking feature of this judgment
is that the denial of the jurisdiction of colonial legis-
latures to legislate as to acts done by foreigners
without the limits of the colony is based upon a de-
nial of the jurisdiction of the British Parliament to
legislate as to the acts of foreigners without the
Empire; and such latter denial is opposed to the
strong line of authorities reviewed in previous
pages of this chapter.^*"

^^ See note (1), post p. 165.
^^ Ante, p. 87, et seq.

EXTERRITORIALITY. 105

Later English Cases.

Subsequent cases before the Privy Council have,
it is conceived, put colonial legislative power upon
a basis wider than a logical application of the Mac-
leod Case would warrant.

Service Ex Juris.

In 1893, on an appeal from New Zealand, the
Privy Council had under consideration * the validity
of a colonial Act which purported to give jurisdic-
tion to the Supreme Court of the colony to proceed
against absent defendants without notice to such de-
fendants * * in actions founded on any contract made
or entered into, or wholly or in part to be performed
within the colony/' There were other provisions
for service out of the jurisdiction in specified cases
but the contention of the appellant was, as their
Lordships pointed out, '^equally hostile to the valid-
ity of both groups of rules.''

" His broad contention is that the Act of Parliament
(15 k 16 Vict., c. 72) which gives to the legislature of New
Zealand power ' to make laws for the peace, order, and good
government of New Zealand, provided that no such laws he
repugnant to the laws of England,' does not give it power
to subject to its judicial tribunals, persons who neither by
themselves nor by agents are present in the colony. It is
not contended that the rules in question are repugnant to
the laws of England. In fact, they are framed on principles
adopted in England. But it is said that the moment an
attempt is made by New Zealand law to affect persons out of
New Zealand that moment the local limitations of the juris-
diction are exceeded and the attempt is nugatory. This was
put at the bar in so broad and abstract a way that it might
be sufficient for their Lordships to answer it by equally
abstract propositions."

*Ashhury v. Ellis (1893), A. C. 339; 62 L. J. P. C. 107.

106 CANADIAN constitution: imperial limitations.

What those propositions would have been is not
stated, the Board preferring to deal with the specific
rules under discussion. But the broad proposition
contended for by the appellant is obviously denied
and it may be taken as affirmed generally by this
judgment that colonial legislation may affect and
may be designed to affect persons out of the colony,
and it was held specifically that the rules in ques-
tion were within the limits of permissible legisla-
tion.

" Their Lordships are clear that it is for the peace, order,
and good government of New Zealand that the Courts of
New Zealand should, in any case of contracts made or to
be performed in New Zealand, have the power of judging
whether they will or will not proceed in the absence of the
defendant. The power is a highly reasonable one. So far
as regards service of process on persons not within their
local jurisdiction, or substituted service, or notice in lieu
thereof in proper cases, the English Courts have it conferred
on them by the Imperial Parliament. The New Zealand
legislature, it is true, has only a limited authority; but in
passing the rules under discussion it has been careful to keep
within its limits."

There seems to be a suggestion here of some
difference between the extent of the authority of the
British Parliament and that of a colonial legislature
in regard to proceedings against absentees, but
what that difference is does not appear.

Deportation: —

Again, in 1906, the Board had under consider-
ation ® ^^ The Alien Labour Act " of Canada by
which provision is made for the deportation of
aliens in certain cases. It had been held by Mr.

^ Atty.-Gen. of Canada v. Cain (1906), A. C. 542; 75 L. J.
P. C. 80.

EXTEERITORIALITY. 107

Justice Anglin ^ that as deportation under the Act
would necessarily involve some exterritorial res-
traint of the deported alien the provision was ultra
vires. This decision was reversed by their Lord-
ships ; and it was held that under the power to make
laws for the peace, order, and good government of
a colony a colonial legislature may pass a law for
preventing an alien from entering the colony;^ that
expulsion is but the necessary complement of ex-
clusion; and that therefore a colonial legislature
may legislate as freely as may the Imperial Parlia-
ment * for the expulsion of immigrants who have
entered the colony in contravention of its law, not-
withstanding the fact that exterritorial constraint
might necessarily, but incidentally, be involved.

Oilier Cases : —

In 1908, it was held by the Privy Council as a
proposition too plain for serious discussion that a
colonial Act incorporating a company may validly
empower it to carry on its business ^^ in or out of 'V
the colony.^

And, lastly, reference may be made to the lan-
guage of the Lord Chancellor, Earl Loreburn, in de-
livering the judgment of the Board in 1912 :^^

" In the interpretation of a completely self-governing
constitution founded upon a written organic instrument, such
as the British Xorth America Act, if the text is explicit the

« 10 Ont. L. R. 469.

^Citing Musgrove v. Chun Teeong Toy (1891), A. C. 272; 60
L. J. P. C. 28.

*"A colonial legislature has, within the limits prescribed by
the statute which created it, ' authority as plenary and as ample
as the Imperial Parliament possessed or could bestow'": citing
Hodge v. R. (1883), 9 App. Cas. 117; 53 L. J. P. C. 1.

^Camphell v. Australian Mutual (1908), 77 L. J. P. C. 117.

*°i2e References of Constitutional Questions to the Courts
(1912), A. C. 571; 81 L. J. P. C. 210.

108 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

text is conclusive, alike in what it directs and what it for-
bids. When the text is ambiguous — as, for example, when
the words establishing two mutually exclusive jurisdictions
are wide enough to bring a particular power within either —
lecourse must be had to the context and scheme of the Act.
Again, if the text says nothing expressly, then it is not to be
presumed that the constitution withholds the power alto-
gether. On the contrary, it is to be taken for granted that
the power is bestowed in some quarter unless it be extran-
eous to the statute itself — as, for example, a power to make
laws for some part of his Majesty's dominions outside of
Canada — or otherwise is clearly repugnant to its sense. For
whatever belongs to self-government in Canada belongs either
to the Dominion or to the provinces, within the limits of
the British North America Act."

Canadian Cases.

The question has naturally been much discussed
in Canadian cases. For example, it has been held
by the Supreme Court of Canada that under the
power conferred upon the Parliament of Canada
to make laws in relation to *^ sea coast and inland
fisheries '' the Dominion Parliament has as full
power in every respect in relation to the fisheries of
Canada as was possessed by the Imperial Parlia-
ment itself;^ that the ^* Act respecting Fishing by
Foreign Vessels ^^ (E. S. C, c. 94) was not merely
valid legislation as to fishing rights within the three-
mile limit of¥ the Canadian coast but that it must
also be read in the light of international law as
authorizing a seizure on the high seas outside that
limit, upon ^^ fresh pursuit,'^ for an offence com-
mitted within the limit. The decision is of far-
reaching importance for, in effect, it affirms the

^The Ship ''North" v. R. (1906), 37 S. C. R. 385; affg. 11
Exch. Ct. R. 141; 11 B. C. 473. The Fisheries Case (1898), A. C.
700; 67 L. J. P. C. 90, does not touch the exterritorial phase of
this question.

EXTEKRITORIALITY. 109

power of the Parliament of Canada to exercise con-
trol upon its coast waters in respect of all those
matters over which international law recognizes the
right of a state bordering upon the sea to exercise
jurisdiction. It has been held in a celebrated judg-
ment that the sea coast below low water mark is not
part of the realm and that consequently British
Courts have not, without statutory authority, juris-
diction over crimes committed on the high seas, even
within the three-mile zone f but this jurisdiction has
now been conferred by the Territorial Waters Jur-
isdiction Act, 1878,* in respect not only of the Bri-
tish coast but also of the coasts of all His Majesty's
dominions. But in addition to this jurisdiction
assumed by statute, international law recognizes the
right of a state bordering upon the sea to exercise
jurisdiction in (1) the prohibition of hostilities; (2)
the enforcement of quarantine; (3) the prevention
of smuggling; and (4) the policing of fisheries; this
last involving the assertion and protection of the
exclusive right of its own subjects to fish within the
three-mile limit.^ All these matters with the excep-
tion of the first named have been the subject of
Canadian legislation, the validity of which is
affirmed by the judgment of the Supreme Court of
Canada above referred to.

The soil under the Great Lakes of Canada —
Ontario, Erie, St. Clair, Huron and Superior — is
Canadian territory in the full sense of the term
under treaty with the United States, as far out as
the international boundary line.^ Their waters,

^R. V. Keyn (1876), L. R. 2 Ex. D. 152; 46 L. J. M. c. 17. See
note (1), ante, p. 90.

Ml & 42 Vict. c. 73 (Imp.), printed in Appendix.

^ R. V. Keyn, uhi supra: see judgment of Martin, Lo.J., Adm:
11 Exch. Ct. R., at p. 147.

* The Grace (1854), 4 Exch. Ct. R. 283; and township boundary
lines extend that far: R. S. O. (1887), c. 5, s. 7.

110 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

however, have been held to be ^' the high seas " and
as such within admiralty jurisdiction.^ The juris-
diction of the Ontario legislature in regard to the
sale of liquor upon a United States ship plying upon
Lake Huron on the Canadian side of the boundary
line was discussed in a Divisional Court in Ontario ^
in 1905. The right of that legislature to ignore in
its enactments the ordinary rule of international
law as to the foreign territorial character of a for-
eign ship upon the high seas within the three-mile
zone was affirmed;^ but this was really obiter as the
judgment was based on this, that the ship was
'^ practically in the harbour of Goderich and con-
travening the local laws which prevailed there. '^

Canadian legislation on the subject of bigamy
has brought the question up for very careful con-
sideration. The British statute on the subject ^^
provides : ' ' Whosoever, being married, shall marry
any other person during the life of the former hus-
band or wife, whether the second marriage shall
have taken place in England or Ireland or else-
where, shall be guilty of felony ; ' ' but the enactment
was not to extend *^ to any second marriage con-
tracted elsewhere than in England and Ireland by
any other than a subject of Her Majesty. '^ The
word ^* elsewhere '' in this British statute was held
not to be limited to British dominions but to have a

' R. V. Sharpe (1869), 5 Out. P. R. 135; per Wilson, J. In R.
V. Meiklejohn (1905), 11 Ont. L. R. 366, a Divisional Court
(Meredith, C.J., Teetzel, J., and Mabee, J.), did not question this
view, holding, however, that the ordinary territorial Courts had
concurrent jurisdiction.

* R. V. Meiklejohn, supra.

® " When it is plain that the legislature has intended to dis-
regard or interfere with that rule, the Courts are bound to give
effect to its enactments ": per Meredith, C.J., delivering the judg-
ment of the Court. In a sense, no question as to the exterritorial
operation of a provincial statute was involved; but the jurisdic-
tion claimed was somewhat akin.

"24 & 25 Vict. c. 100, s. 57 (Br.).

EXTERRITORIALITY. Ill

world-wide application;^ while language prima facie
wider in a colonial statute was in Macleod's Case
held to be limited to a second marriage within the
colony (as already pointed out)" in order, as it was
expressly put, to keep it within the limits of colonial
legislative jurisdiction. The Canadian statute mak-
ing bigamy a crime ^ defines it as ' ' the act of a per-
son who, being married, goes through a form of
marriage with anj^ other person in any part of the
world, '^ but there is the further provision that '' no
person shall be liable to be convicted of bigamy in
respect of having gone through a form of marriage
in a place not in Canada, unless such a person, be-
ing a British subject resident in Canada, leaves Can-
ada with intent to go through such form of mar-
riage.^' The enactment in this form has since the
decision in the Macleod Case been upheld as valid by
the Court of Appeal of Ontario in a concrete case *
and by the Supreme Court of Canada upon a refer-
ence under the Supreme Court Act.^ Macleod's Case
has been treated as limited to the particular case of
a man in no way identified with the colony at the
date of the second marriage, either by domicile,
habitual residence, or even British citizenship; and
the leaving Canada with intent as a necessary in-
gredient in the crime — an ingredient involving
wrong-doing in Canada — has been seized upon as
further differentiating the two statutes. The only
dissentient opinion in the Supreme Court of Canada
was that of Strong, C.J. He thought that the
offence struck at was the second marriage and that
the Macleod Case, in principle, settled that a colonial
legislature cannot affix criminal character to an act

^R. V. Russell (1901), 70 L. J. K. B. 998 (H.L.).

^ Ante, p. 103.

''R. S. C. (1906), c. 146, s. 307 (a).

*R. V. Brinkley (1907), 14 Ont. L. R. 435.

^Re Bigamy Sections (1897), 27 S. C. R. 461.

112 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

any essential ingredient in which is to be done
abroad.^ The Imperial Parliament, in his opinion,
might in express terms empower a colonial legisla-
ture so to do, but had not gone that far by a mere
general grant of power to legislate as to ^' criminal
law." Such a grant should be construed in accord-
ance with the ordinary restrictive rule as not auth-
orizing ex-territorial legislation ;^ but this, it is con-
ceived, is altogether too restricted a view to take of
a grant in a constitutional Act of plenary powers of
legislation.^ The judgment of Meredith, J.A., in the
Court of Appeal for Ontario is noteworthy. He
points out that it is altogether too narrow a propo-
sition to say that the legislative power of a Cana-
dian legislature is strictly limited to matters wholly
within the territorial limits, and he instances the
Extradition Act,^ Deportation Act,^" the enactment
against bringing stolen property into Canada, and
the legislation respecting officers in England and
other countries maintained by Canada for political
and commercial purposes.^ Of the legislation in
question he says:

"The enactment relates to an act done out of Canada,
but that is only one circumstance in the constitution of,
crime; and it. is immaterial whether that act is or is not
lawful or is or is not a crime where it is done. It cannot

^ This was the view previously taken by a Divisional Court
(Armour, C.J., and Falconbridge, J.), in R. v. Plowman (1894),
25 Ont. R. 656.

""' If, therefore, the creation of a penal offence is by settled
rules of interpretation to be restricted as regards locality, it
would seem that on the same principles a grant of power to
legislate on the subject of criminal law, to be exercised by a
dependent legislature, should also be so construed": 27 S. C. R.,
at p. 475.

^ See post, Chap. XVIII.

^ See post, p. 194.
^» See ante, p. 106.

^Provincial legislation as to the execution abroad of instru-
ments concerning land may be added. See ante, p. 67.

EXTERRITORIALITY. 113

be said that the gravamen of the offence is in the act so
done; it is quite harmless so far as the enactment goes with-
out the other ingredients (1) a British subject; ,(2) resi-
dence in Canada; and (3) leaving Canada with the intent
to do the act. The wrong struck at was an evasion of the
law of Canada in favour of peace and morality by the simple
expedient of stepping over an international boundary line
to go through a form of marriage."

Prior to the Macleod Case the question came
before a Divisional Court in Ontario.^ Untram-
melled by any pronouncement of a higher Court,
Boyd, C, examined the matter as one of principle
and could find no limitation upon colonial legislative
power along this line. ^' The objection is, that the
Dominion Parliament had no authority to pass aa
Act making the contracting of a second marriage in
a foreign country a crime. But where is to be found
any limitation of its authority in this direction? It
was argued as if the law were in some sense extra-
territorial ; but that is not so, for it is only intended
to affect the man on his return to the Dominion
after having committed the offence. ' ^ ^ In his
opinion the lines of judicial enquiry open to a Court
in examining as to the validity of colonial legisla-
tion are only two: a consideration of the constitu-
tional charter on the one hand and oitthe Colonial
Laws Validity Act, 1865, on the other. In effect,
this would in the case of Canada, whose constitution
rests upon an Imperial statute, reduce the matter
to the one question of repug;nancy; repugnancy to
the provisions, express or implied, of the British
North America Act, or of other Imperial Acts

^R. v. Brierly (1887), 14 Ont. R. 525: Boyd, C, Ferguson, J.,
and Robertson, J.

^ This rather unduly limits the meaning of the word " extra-
territorial." It is constantly used in the books to describe the
attempt by the legislature of one state to determine the legal
relations to arise in that state from acts done and contracts
entered' into in another. See ante, p. 66.

CAN. CON. — 8

114 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

extending to the colony either expressly or by neces-
sary intendment. Among those so extending by
necessary intendment should be included general
Imperial Acts ^ ' of such universality and public im-
portance as obviously to run paramount wherever
the Queen's sovereignty obtains.''* The Chancellor
also examined the Canadian enactment, limited as it
is to British subjects resident in Canada, as to its
propriety in the light of recognized principles of
international law, and found no fault with it along
that line. This, however, does not really touch the
principle involved.^

In conclusion it is submitted that there is no
constitutional limitation upon the power of a Cana-
dian legislature to make laws as to the results
which are to follow in Canada (on proceedings
either civil or criminal in the Canadian Courts)
from acts done abroad, or as to the etf ect to be given
in Canadian Courts to Canadian legislation in regard

*For example, the Act of Settlement, the Bill of Rights, etc.
In the last analysis this view as to the limits of necessary en-
quiry is probably right, although it may be difficult to refer the
limitation of colonial legislative power in the matter of national
or international affairs to such a principle. See post, p. 134.

' Other Canadian cases bearing upon the question are Peak
V. Shields (1882), 8 S. C. R. 579; In re Massey Mfg. Go. (1886),
13 Ont. App. R. 446; Deacon v. Chadwick (1901), 1 Ont. L. R.
346; Couture v. Dom. Fish Co. (1909), 19 Man. L. R. 65 (see
ante, p. 81); McMulkin v. Traders Bank (1912), 26 Ont. L. R.
1 : and also the cases as to provincial powers concerning taxation
touching property without the province. See chap. XXX., post.
In Swift v. Atty.-Gen. (Ireland) (1912), A. C. 276; 81 L. J. P. C.
158, question was raised in the House of Lords, but not decided,
as to the power of the former Irish Parliament to declare void
a foreign marriage, valid according to the law of the place where
It was celebrated. On the construction of the statute it was held
to have no extra-territorial application. Deacon v. Chadwick,
uM supra, appears to throw doubt, by reason of the very wide
language used in the judgment of Armour, C.J., upon the validity
of provincial legislation authorizing service ex juris on non-
residents; but Ash'bury v. Ellis {ante, p. 105), is opposed to such
a view. This subject will come up again for discu-^ision in treating
of the jurisdiction of Canadian Courts.

EXTEREITOBIALITY. 115

to persons and property without the Dominion
or province, as the case may be, or to rights of action
accrued abroad. The Macleod Case, it is true, is
directly opposed to such a wide statement of exist-
ing law; but that case, as already pointed out, is
based upon a wrong principle. It denies validity to
colonial legislation because of a constitutional limi-
tation upon the power of the British Parliament to
legislate as to the acts abroad of persons not British
subjects ; a limitation which it is submitted is nega-
tived by a long line of undoubted authority.^

That a colonial legislature may go to extremes
along this line is beside the question ; in the last re-
sort the power of disallowance or the exercise by the
Imperial Parliament of its supreme legislative
authority should suffice to prevent international
complications."^ But that a colonial legislature ex-
ercising its right to make laws ^* having the oper-
ation and force of sovereign legislation '' for the
peace, order, and good government of the colony
should have no right to have regard to men's acts
and conduct abroad with a view to holding them
responsible for such acts or conduct when they seek
to renew or acquire Canadian citizenship or resi-
dence is a proposition, it is submitted, radically un-
sound. Our immigration laws, the constitutional
validity of which, even to the extent of authorizing
the extra-territorial application of force, has been
affirmed by the Privy Council, ignore all such limi-
tations. In what way the undesirable immigrant,
British subject or foreigner alike, may have to
answer for his previous acts and conduct abroad is
immaterial; penal consequences are affixed and it
matters not in principle that the penalty may be
exclusion or expulsion rather than imprisonment
within the colony.

*See ante, p. 87 et seq.
'' See ante, p. 95.

CHAPTER VIII.

The Crown in Council (Imperial).

Imperial Prerogatives.

The British Ministry, like the British Parlia-
ment, has a dual character. It is at once the Crown
in Council (British) administering the government
of the United Kingdom and the Crown in Council
(Imperial)^ governing the Empire in its interna-
tional relations and in those matters which concern
the relations of the colonies to the motherland or to
each other. It administers the law as laid down in
Imperial Acts in so far as such administration is
not confided by such Acts to the Crown in Coun-
cil (colonial) ; for it must be remembered that in,
so far as the executive powers of the Crown are
regulated by Imperial statute the statute governs,
whether the question be as to the government of
Great Britain or of a colony; as, for example, of
Canada under the British North America Act. The
British Ministry as the Crown in Council (Imperial)
also administers that small part of the common law
which concerns the Crown's Imperial authority over
the colonies; and it is this relatively small part of
the common law, not controlled by statute, which
alone creates any real difficulty.

There has been no more fruitful cause of dis-
pute and debate in reference to the government of

^ It is difficult to express in any short phrase the idea of the
Crown acting in Council with, on the one hand, the British
Ministry, and, on the other, a Colonial Ministry. The Crown in
Council (Imperial), the Crown in Council (British), and the
Crown in Council (colonial), may answer the purpose.

THE CROWN IN COUNCIL (IMPERIAL). 117

the British colonies than the lack of a proper under-
standing of that branch of English law which relates
to the prerogatives of the Crown; and in our Can-
adian federal system the same want of appreciation
of the essential principles which underlie that law
has given rise to notable disputes between federal
and provincial authorities as to which executive
head, the Governor-General or a Lieutenant-Gov-
ernor, should exercise the prerogative in certain s/
cases."

It was, perhaps, not much to be wondered at.
The older authorities on this branch of law ^ so
mix statements of law with hymns of praise and
ascriptions of attributes almost divine to the wearer
for the time being of the Crown of England that it
is a difficult task to disentangle the thread of legal
principle which runs through them.'* Uhi jus est
vagum ibi misera servitus has no more forcible
illustration than in the history of the struggles of
the English people to free themselves from the des-
potism of government by prerogatives, unearthed
by the industry of Court lawyers and tortured into
legal justification for executive oppression.

So careful indeed, the old writers put it, is the
common law in its provision for the due exe<iution
of the laws of the land, so careful to provide a check
against any legislative hindrance to their smooth
and expeditious working, that the King is by the

^The Pardoning Power Case (1894), 23 S. C. R. 458; the Q. C.
Case (1898), A. C. 247; 67 L. J. P, C. 17; 23 Ont. App. R. 792.

* " A topic that in some former ages was ranked among the
arcana imperii; 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, perhaps, the exertion of the one, like the sol-
emnities of the other, would not bear the inspection of a rational
and sober enquiry." — Blackstone.

* " The boundless crop of venerable learning as to pardon and
prerogative" — per Hagarty, C.J., in the Pardoning Power Case,
19 O. A. R., at p. 36.

118 CANADIAN constitution: IMPERIAL LIMITATIONS.

common law and for the very purpose of protecting
the royal executive authority^ a constituent branch
of Parliament; and the consent of the Crown is ab-
solutely essential to the validity of all Acts. This
right to give or withhold consent has been treated
as itself one of the prerogatives of the Crown, the
cover and protection to all the other prerogatives;
and upon its exercise the law recognizes no limita-
tion. While from time to time Parliament has with-
drawn certain prerogatives from the Crown and
has in regard to others fettered their exercise by
conditions as to time, place, and manner of exercise,
such action has always had the consent of the Crown,
no matter how unwillingly or under what stress of
circumstances given; and this supreme prerogative
of giving or withholding consent no power short of
revolution can take away. This is the aspect of the
question which is pre-eminently apparent in the
older law books, and it is the inadequacy of this
mode of treatment which makes this branch of the
law so difficult to the student.

But when it is remembered that this supreme
prerogative has fallen into complete desuetude f that
it and all other prerogatives of the crown are simply
common law powers in aid of efficient executive gov-
ernment ; and that Parliament, the Crown in Parlia-
ment, as the sovereign law-making body may legis-
late and has legislated freely as to the powers of
the Crown in Council, much of the difficulty vanishes.

Dr. Dicey defines the prerogatives of the Crown
as ^^ nothing else than the residue of discretionary
or arbitrary authority which at any given time is

^ cutty, Prerog. of the Crown, 3. See post, p. 324, for an
extract from Gov. Cornwallis' Commission, disclosing this reason
in frank terms.

•It was last exercised by Queen Anne in 1707. See Anson,
Law and Custom of the Const., 2nd ed., Pt. I., 287.

THE CROWN IN COUNCIL (IMPERIAL). 119

legally left in the hands of the Crown ;^'^ and Anson
speaks of them as '' ancient customary powers,''^
not, as Blackstone says, out of the ordinary course
of the common law, but *^ part of the common law
and as capable of ascertainment and definition by
the Courts as any other part of the unwritten law
of the land.''«

In so far as the Imperial Parliament has legis-
lated as to the Crown's powers the statute deter-
mines their residence, extent, and efficacy; and this
proposition holds good as to those prerogatives
which, as having more particular reference to the
relations between the Crown and colonial govern-
ment, may be termed Imperial. And, in like man-
ner, where the Crown's prerogatives in relation to
the internal government of a colony have rightly
been taken possession of by the statute law of the
colony, the statutory law must govern.

Where the whole legislative power of a colony is
entrusted to one legislature, the sole task is to
determine what prerogatives are truly Imperial,
that is to say, have essentially reference to the
Crown's Imperial headship. But where, as in
Canada, the legislative power of a colony is dis-
tributed among different legislatures, the very diffi-
culty which arises as to the line of division for legis-
lative purposes arises also as to the residence of the
Crown's prerogatives.

The attributes, privileges, and powers of the
Crown must, therefore, be considered, as a matter
of principle rather than of detail, in reference to
these questions:

(1) What powers, attributes, etc., statutory or
prerogative, are truly Imperial?

''Dicey, Law of the Const, 5th ed., p. 355.
'Anson, Pt. II., 2.
»7&. 3.

120 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

It will appear that these attach exclusively to
the Crown in Council (Imperial) ; that they have
no colonial counterpart ; and that without an express
grant of power in that direction colonial legislation
cannot usurp or affect them.

(2) What are the powers, etc., statutory or pre-
rogative, of the Crown in Council (British) in
reference to what may he called the local govern-
ment of the United Kingdom?

These have in very many cases their colonial
counterparts, powers, etc., both statutory and pre-
rogative, exerciseable by the Crown in Council (co-
lonial), and colonial legislation may as freely deal
with these as the British Parliament may deal with
their British counterparts. S->^-^ op-^^Ul^-^U^ x^^ji^

This division of the prerogauves of the Crown
into Imperial and Non-Imperial has not been adopted
by English writers, but it is the vital distinction
from a colonial standpoint. As to the Dominion
of Canada on the one hand and the provinces of
Canada on the other, there is the further and diffi-
cult question as to the line of demarcation between
their respective spheres of authority ; but apart from
that, the question is quite as important from a Can-
adian standpoint as from that of any other colony.
What is that Imperial sphere of executive authority
which colonial legislatures cannot invade ?

A short reference, however, to the classification
adopted by English writers will serve to bring the
various prerogatives into view.

One large principle of division appears in the
classification of prerogatives into attributes, and
prerogatives proper. The attributes of sovereignty
(or pre-eminence), perfection, and perpetuity, find
expression in the sayings: — ** The King is properly
the sole executive magistrate,'' ^^ The King can do

THE CKOWN IN COUNCIL (IMPERIAL). 121

no wrong/' and '^ The King never dies.'' The pre-
rogatives proper represent, according to the com-
mon law, powers of action in connection with every
department of executive government, administrative
and judicial. Chitty divides them — the line of divi-
sion is not very exact — into :

1. Prerogatives in reference to foreign states and
affairs, such as the sending of ambassadors, the mak-
ing of treaties, making war and peace, and the vari-
ous acts of executive government necessary in con-
nection with these various matters.^"

2. Prerogatives arising from the recognized posi-
tion of the Crown as Head of the Church}

3. Prerogatives in connection with the assemb-
ling, proroguing, and dissolving of Parliament.^

4. Prerogatives annexed to the position of the
Crown as the fountain of justice,^ such as the
creation of Courts, the appointment of Judges and
officers in connection therewith; the pardoning of
offenders, and the issuing of proclamations.

5. Those prerogatives attributed to the Crown
as the fountain of honor, such as the bestowing of
titles,* franchises, etc.

^'^ 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 no legislative power. See,
however, sec. 132 of the B. N. A. Act.

* Chitty, 50.— See vost, p. 275.

» Chitty, 67.— See &s. 38 and 50, B. N. A. Act.
''Chitty, 75.

* Chitty^ 107. — These would seem to be, so to speak, preroga-
tives at large, not connected with any particular department of
executive government. 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
are none such in relation to our self-government; certainly none
are conferred on the Governor-General by his commission. See
as to franchises. Perry v. Clergue, 5 0. L. R. 357; Re Ferries
(1905), 36 S. C. R. 206; Atty.-Gen. v. British Museum (1903), 72
L. J. Chy. 742.

122 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

6. The STiperintendency of commerce.^

7. The prerogatives in connection with the collec-
tion of the revenue.^

Sergeant Stephen, in his new Commentaries on
the Laws of England (founded on Blackstone),
adopts a somewhat different division. According
to his arrangement, prerogatives are either direct,
or by way of exception. Of the latter he says :^

" Those by way of exception are such as exempt the
Crown from some general rules established for the rest of
the community — as in the ease 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 preferred
before a debt to any of his subjects."®

Direct prerogatives he divides into three classes,
according as they regard, (1) the royal character;
(2) the royal authority; and (3) the royal income.
Of these classes the prerogatives by way of excep-
tion, and those regarding the royal authority and
the royal income, correspond with Chitty^s class
'^ prerogatives proper.''

Sir W. E. Anson® groups the Crown's preroga-
tives under three heads: (1) in connection with the
executive and legislative departments of govern-
ment; (2) feudal rights as overlord; (3) attributes
ascribed to the Crown by mediaeval lawyers.

It needs but a cursory glance at the last edition
of Stephen's Commentaries to make clear that Par-
liament has so taken control of these prerogatives,
has so fettered their exercise by conditions as to the

* Chitty, 162.

«/&., 199.

' Steph. Comm., 5th ed., Vol. II., 494.

'See Liquidators of Mar. Bank v. Rec.-Gen. (N.B.), (1892).
A. C. 437; 61 L. J. P. C. 75; 5 Cart. 1; Exchange Bank v. Reg., 11
App. Cas. 157; 55 L. J. P. C. 5; Reg, v. Bank of N. 8., 11 S. C.
R. 1.

» " Law and Custom of the Const.," Pt. II., 3 et seq.

THE CEOWN IN COUNCIL (IMPERIAL). 133

manner, time, and circumstance of putting them into
execution, has indeed in so many cases indicated the
particular official by whom they are to be exercised,
that although exercised in the Sovereign's name all
arbitrary power in connection with them has van-
ished. They have very largely ceased to be common
law prerogatives and are now statutory powers. This
is particularly true of those prerogatives which have
been spoken of above as non-imperial or local to the
United Kingdom; but even the Imperial preroga-
tives have to some extent been the subject of Im-
perial legislation as will appear from a study of the
various Acts conferring constitutions upon the
colonies. To what extent in Canada's case will be
discussed hereafter.

Upon the acquisition of a colony, what is the
position of its inhabitants in reference to the pre-
rogatives of the Crown? This broad question finds
scant consideration in the older text writers on this
branch of law. The two following quotations ex-
haust all that Chitty has to say on the subject :^^

" Though allegiance be due from everyone within the
territories subject to the British Crown, it is far from being
a necessary inference that all the prerogatives which are
vested in His Majesty by the English laws are, therefore,
exercisable over individuals within those parts of His Ma-
jesty'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 domin-
ions as are governed by their own local and separate laws.
The King would be nominally, and not substantially, a
sovereign over such of his Dominions if this were not the
case. But the various prerogatives and rights of the Sover-
eign which are merely local to England, and do not funda-
mentally sustain the existence of the Crown or form the
pillars on which it is supported, are not, it seems, prima

^''Chitty, 25, 32.

124 CANADIAN CONSTITUTION : IMPEKIAL LIMITATIONS.

facie extensible to the colonies, or other British Dominions
which possess a local jurisprudence distinct from that preva-
lent in, and peculiar to England. . To illustrate this distinc-
tion: the attributes of the King, sovereignty, perfection,
and perpetuity, which are inherent in, and constitute His
Majesty's political capacity, prevail in every part of the ter-
ritories subject to the English Crown, by whatever peculiar
or internal laws they may be governed. The King is the
head of the Church ; ^ is possessed of a share of legislation ;
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 dependent on tl^e
British Crown, have different and local laws for their inter-
nal governance, as, for instance, the plantations or colonies,
the minor prerogatives and interests of the Crown must be
regulated 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, there-
fore, which arises between the King and his colonies respect-
ing the prerogative, the first consideration is the charter
granted to the inhabitants. 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 exer-
cise in the mother country."

Chitty, it will be noticed, emphasizes the distinc-
tion between fundamental rights and principles and
those merely local to England. He does not bring
out clearly that the ^ * peculiar and established law ' ^
of a colony may largely rest upon colonial enact-
ment ; nor does he deny in terms though he does in-
ferentially the power of a colonial legislature to in-
terfere with the fundamentals, just as he infer entially

^But see post, p. 275.

' See Exchange Bank v. Reg., 11 App. Cas. 157 ; 55 L. J. P.
C. 5; Liquidators' Case (1892), A. C. 437; 61 L. J. P. C. 75; 5
Cart. I.

THE CROWN IN COUNCIL (IMPERIAL). 125

asserts the power to legislate locally as to what he
calls the minor prerogatives and interests of the
Crown. In a conquered or ceded colony, therefore,
which continues to be governed by a foreign law,^
unless and until the new sovereign see fit to change
the law, the lex prerogativa of English jurisprudence
is no more to be deemed in force than is any other j
branch of English law; in a settled colony that lex
prerogativa is carried with them by emigrating col-
onists to the same extent and with the same condi-
tions as to applicability as is the case with other
branches of the law of England;* but subject as to
all colonies, however acquired, to the operation
therein, as Chitty puts it, of those fundamental prin-
ciples on which the King ^s authority rests and which
are necessary to maintain it, and, it should be added,
to those principles which underlie the relations be-
tween the Crown and the colonies.^

The question then is: What powers, statutory or
prerogative, come ivithin the class of fundamentals ;
or, as already indicated, what powers, etc, are truly
Imperial?

As to all others, the power of colonial legislatures
being, within the sphere of their authority, plenary,

^ This aspect of the question is of peculiar interest to the
Province of Quebec. See Re Marriage Laws (1912), 46 S. C, R.
132.

* Chapter XIV., post, p. 271.

* " Authorities which it would be useless to quote, so familiar
are they, establish that in a British colony governed by English
law the Crown possesses the same prerogative rights as it has
in England, in so far as they are not abridged or impaired by
local legislation, and that even in colonies not governed by Eng-
lish law and which, having been acquired by cession or conquest,
have been allowed to remain under the government of their
original foreign laws, all prerogative rights of the Crown are in
force except such minor prerogatives as may conflict with the
local law." Per Strong, J., in R. v. Bank of N. S., 11 S. C. R. 1.

" The prerogative of the Queen when it has not been expressly
limited by local law or statute is as extensive in Her Majesty's
colonial possessions as in Great Britain." Liquidator's Case,
supra.

126 CANADIAN constitution: imperial limitations.

such a legislature may, the Crown as a constituent
branch assenting, legislate in reference to the
Crown's prerogatives in the colony as fully as the
British Parliament may so legislate for the United
Kingdom. The Crown is bound by colonial legisla-
tion, and, for example, is entitled in Quebec to no
priority over other creditors because ^^ the subject
of priorities is exhaustively dealt with by them ''
(i.e., by the codes passed by the local parliament)
^^ so that the Crown can claim no priority except
what is allowed by them. ' ' ^ A glance through Cana-
dian statutes will disclose that Canadian legislatures
have freely legislated in reference to the Crown's
prerogatives, and that the arbitrary power of the
executive is reduced to a minimum, as in the
United Kingdom. Now, however, that executive
responsibility to parliament, and through parlia-
ment to the electorate, is so thoroughly recognized
and the ^^ conventions '' of the constitution which
ensure such responsibility so universally observed,
the tendency of legislation is to increase the amount
of discretion allowed to the executive officers in the
various departments of the public service; but this
is not a matter of prerogative (a common law right)
but a statutory discretion.

The question as between the federal and provin-
cial governments of Canada will be discussed later ;
the question here is as between the home government
and the colonies. For the purposes of this enquiry,
the Imperial prerogatives of the Crown may be con-
sidered under these heads :

1. Attributes and privileges.

2. Powers.

^Exchange Bank v. Reg., 11 App. Cas. 157; 55 L. J. P. C. 5.
See also Chitty, 7; Gould v. Stewart (1896), A. C. 575; 42 L. J.
Chy. 553; Re Oriental Bank, 28 Chy. D. 643, 649; 54 L. J. Chy.
327; Commrs. of Taxation (N.S.W.) v. Palmer (1906), 76 K J.
P. C. 41; Atty.-Oen. (N.S.W.) v. Curator (1907), 77 C. J. P. C. 14.

THE CROWN IN COUNCIL (iMPEEIAL). 127

Attributes.

The Crown's Headship.

(1) In legislation:

The attributes of pre-eminence and perpetuity as
described by Chitty and the older writers are com-
prehended in the one word Monarchy, the constitu-
tional headship of one person; and that is funda-
mental in the constitution of the Empire.

Canada is a Dominion ^ ^ under the Crown of the
United Kingdom,'' ' and there must be in any Cana-
dian legislation a saving of the sovereignty of the
British Parliament, the Crown-in-Parliament (Im-
perial). In the Quebec Kesolutions, upon which the
British North America Act is founded, this restric-
tion is express f but it was no doubt deemed unneces-
sary to insert any words of express restriction upon
this point in the Act itself as it is an implied but no
less fundamental restriction upon all colonial legis-
lation. In a very early case ^ Chief Justice Vaughan,
under the heading ^ ^ What the Parliament of Ireland
cannot do, ' ' says :

1. It cannot alien itself, or any part of itself,
from being under the dominion of England; nor
change its subjection.

2. It cannot make itself not subject to the laws of
and subordinate to the Parliament of England.^''

3. It cannot change the law of having judgments
there given, reversed for error in England,^ and
others might be named.

' B. N. A. Act, 1867, (preamble.

' See Appendix.

' Craw V. Ramsay, Vaughan, 292.

^"I.e., to the Crown in Parliament (Imperial).

^ As to appeals to the Privy Council, see post, p. 157.

128 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

4. It cannot dispose the Crown of Ireland to the
King of England's second son, or any other but to
the King of England.

It may seem idle to pursue this subject further.
There is no doubt that any colonial legislation incon-
sistent with the colonial relationship would be un-
constitutional and void.^ The monarchical principle
has been already shewn to obtain throughout the
Empire; and those sections of the British North
America Act which embody that principle have
already been quoted.^

The title to the Crown is, it is true, parliament-
ary ; but the very statute of Anne which is a practical
denial of the theory of divine right impliedly asserts
the Crown's headship in legislation. It 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 descent, limitation, inheritance, and government
thereof."*

The Crown's Headship,

(2) In executive government:

Here, again, there is no Imperial legislation to
weaken the operation of the monarchical principle,
much less to destroy it. Such legislation is conceiv-
able perhaps; but it would spell such a revolution,
peaceful or otherwise, that it is quite unprofitable to
contemplate its possible course. At all events,
Canada's constitutional charter, the British North

'^ International Bridge Co. v. Can. Southern Ry., 28 Grant, at
p. 134; and see Tully v. Principal Officers of H. M. Ordnance, 5
U. C. Q. B. 6.

^ Ante, chap. III.

*6 Anne c. 7 (Imp.).

THE CROWN IN COUNCIL (IMPERIAL). 129

America Act, expressly declares the Crown's head-
ship in the executive government of Canada and any
Canadian legislation in a contrary sense is of course
impossible.

Personal Irresponsibility : —

* ^ The King can do no wrong. ' ' This is not merely
a truism in politics but a legal proposition. It is
said by the older writers to flow from the kingly
attribute of perfection ; but it is really an immunity
by way of compensation for the absence of despotic
power. The sovereign in the eye of the law never
acts alone. The constitution does not contemplate
the possibility of private wrong doingV and for the
work of government the law prescribes not merely
that some minister or official must be legally respon-
sible for every act of the King, but also that such
responsibility be fixed by the observance of forms
prescribed by law, written or customary.®

"> Dicey, Law of the Const., 5th ed., 24.

• '* It is now well established law that the Crown can act only-
through ministers, and according to certain prescribed forms,
which absolutely require the co-operation of some Minister, such
as a Secretary of State or Lord Chancellor who, therefore,
becomes, not only morally, but legally, responsible for the legality
of the Act in which he takes part. Hence, indirectly but surely,
the action of every servant of the Crown and, therefore, in
effect of the Crown itself is brought within the supremacy of
the law of the land." lb., p. 307. See also Anson, Pt. II., 42,
et seq.; ToUn v. R. (1864), 33 L. J. C. P. 199; coram, Erie, C.J.,
Williams, J., Willes, J., and Keating, J.

"The maxim that the King can do no wrong is true in the
sense that he is not liable to be sued civilly or criminally for a
supposed wrong; that which the Sovereign does personally the
law presumes will not be wrong; that which the Sovereign does,
by command to his servants cannot be a wrong in the Soiveredgn-,
because if the command be unlawful it is in law no command;
and the servant is responsible for the unlawful act in the same
way as if there had been no command." /&., p. 205. Erie, C.J.,
delivered the judgment of the Court.

CAN. CON. — 9

130 CANADIAN constitution: imperial limitations.

To no one else in the Empire does this immunity
extend. The officer who performs any act must
answer in the Courts for its legality and can plead
no superior's command for an illegal act.

*^^Let it not, however, be supposed," said Cockburn,
CJ.,"^ "that a subject sustaining a legal wrong at the hands
of the Crown is without remedy. As the sovereign cannot
authorize wrong to be done, the authority of the Crown
would afford no defence to an action brought for an illegal
act committed by an officer of the Crown. The learned
counsel for the suppliant rested part of his argument on the
ground that there could be no remedy by action against an
officer of state for an injury done by the authority of the
Crown, but he altogether failed to make good that position.
The case of Buron v. Denman,^ which he cited in support
of it, only shews that where an act injurious to a foreigner,
and which otherwise might afford a ground of action, is done
by a British subject and the act is adopted by the govern-
ment of this country, it becomes the act of the state and
the private right of action becomes merged in the inter-
national question which arises between our own government
and that of the foreigner.® The decision leaves the question
as to the right of action between subject and subject wholly
untouched. On the other hand, the ease ^^ of the general
warrants. Money v. Leach, and the cases of Sutton v. John-
stone ^ and Sutherland v. Murray ^ there cited are direct
authorities that an action will lie for a tortious act, not-
withstanding it may have had the sanction of the highest
authority in the state. But in our opinion no authority is
needed to establish that a servant of the Crown is respon-
sible in law for a tortious act done to a fellow subject, though
done by the authority of the Crown; a position which seems

''Feather v. R. (1866), 35 L. J. Q. B. 200, at p. 209; coram,
Cockburn, C.J., Crompton, J., Blackburn, J., and Mellor, J. The
Chief Justice delivered the judgment of the Court.

•2 Exch. R. 167.

• As to " acts of state " in relation to colonial government, see
post, p. 145.

"1 Term. Rep. 493.

"3 Burr. 1742.

» 1 Term R. 538.

THE CROWN IN COUNCIL (IMPERIAL). 131

to US to rest on principles which are too well settled to admit
of question and which are alike essential to uphold the dig-
nity of the Crown on the one hand and the rights and liber-
ties of the subject on the other."

It is beyond the scope of this work to deal with
that large branch of public law which concerns the
position of public officials and their relations to pri-
vate individuals.^ But there is one class of officers
on whose behalf a claim to personal irresponsibility
has been strongly urged, namely, colonial governors ;
and this would appear to be the proper place to deal
with their position in this respect as recognized in
the Courts.

Colonial Governors : —

In the early days of colonial history there seems
to have been a disposition on the part of governors
appointed to distant portions of the Empire to set
themselves above the law,* and to insist upon the
applicability to their case of the maxim, ^ ^ The King
can do no wrong.'' As in England the Sovereign
cannot be arrested by virtue of any legal process,
or be impleaded in any Court of Justice in reference
to any act, public or private,^ so these early colonial
governors, claiming a delegated sovereignty, at-
tributed to themselves a corresponding sacredness
of person, and an equal immunity from the jurisdic-
tion of Courts of Justice. But by a series of de-
cisions ^ the attributes with which they had in fancy

^ It will be briefly touched upon again in reference to " acts
of state." See post, p. 144 et seq.

* See preamble to 11 & 12 Wm. III. c. 12 (Imp.), quoted in the
note on p. 133, post.

" Steph. Comm., Vol. II., 498 ; Chitty, " Prerog. of the Crown,"
374; ante, p. 129.

^Fabrigas v. Mostyn, Cowp. 161; 1 Sm. Ldg. Cas. (8th ed.),
652; Cameron v. Kyte, 3 Knapp P. C. 332; Hill v. Bigge, 3 Moo. P.
C. 465; Mtisgrave v. Pulido, L. R. 5 App. Cas. 102; 49 L. J. P. C.

132 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

clothed themselves were one by one stripped from
them until now their position, as legally recognized,
may be sho^-tly summarized thus :

1. The powers, authorities and functions of a
colonial governor are such, and such only, as are con-
veyed expressly or impliedly by his commission/

2. For any act done qua governor and within his
jjithoHty as such, he incurs no liability, either ex

contractu^ or in tort.®

3. For any act done in his private capacity, or
done qua governor biit_bexond his powers as such,
a colonial governor is amenable'Io'the civil JufisHic-
tion of His Majesty's Courts to the same extent as
any other individual; and no distinction can be
drawn between the Courts of England and the colon-
ial Courts in respect to their jurisdiction to enter-
tain an action against a governor.^*^

4. To any action brought against him he cannot
plead in abatement a plea of personal privilege — of
immunity from being impleaded. He must plead in
bar the larger plea that the acts complained of were

20. And see Broom, "Const. Law," 622, et seq.; Forsyth, 84,
et seq.; Todd " Pari. Gov't in Brit. Col.," passim; Harvey v. Lord
Aylmer, 1 Stuart, 542.

^Cameron v. Kyte, Hill v. Bigge, Musgrave v. Pulido, uH
supra.

^Macbeth v. Haldimand, 1 T. R. 172; and see Palmer v. Hutch-
inson, 6 App. Cas. 619; 50 L. J. P. C. 62.

^Reg. V. Eyre, L. R. 3 Q. B. 487; 37 L. J. M. C. 159.

^° Hill V. Bigge, Musgrave v. Pulido, uM supra. See also Wall
V. MacNamara, 1 T. R. 536; Wilkins v. Despard, 5 T. R. 112;
Glynn v. Houston, 2 M. & G. 337; Oliver v. Bentick, 3 Taunt. 456;
Wyatt V. Gore, Holt N. P. 299 (defendant was Lieut.-Gov. of
Upper Canada, and had to pay £300 for libelling plaintiff in the
colony). It is to be observed that the commissions of some of
these governors conferred military authority, and their cases
were in respect of military excesses, but the principle is through-
out the same. See too Phillips v. Eyre, L. R. 4 Q. B. 225; 6 Q. B.
1; 40 L. J. Q. B. 28.

THE CROWN IN COUNCIL (IMPERIAL). 133

done qua governor and within the limits of his auth-
ority as such.^

5. A governor must plead specially his justifica-
tion: in other words, when a governor justifies any
act as being within the powers vested in him by his
commission, he must plead the commission, his
powers thereunder, and show by proper averments
that the acts complained of were done in the proper
exercise of those powers.^

6. A governor is amenable criminally to the
Courts of the colony for crimes committed in the
colony, whether such crimes are connected with his
official position or entirely aside from it.^

^ Musgrave v. PuUdo, uM supra. As to " acts of state," see
post, p. 145.

'Cases supra and Oliver v. Bentick, 3 Taunt. 460.

^ This would seem to result from the reasoning upon which
Hill V. Bigge, and Musgrave v. Pulido, supra, are based. The
preamble to the statute 11 & 12 Wm. III. c. 12— " An Act to
punish governors of plantations, in this Kingdom, for crimes by
them committed in the plantations " — characterizes the gover-
nors of those days as '* not deeming themselves punishable for
the same here nor accountable for such their crimes and offences
to any person within their respective governments " ; for remedy
whereof provision was made by the statute for the trial of any
offending governors in England. This statute was extended so
as to apply to other persons holding colonial appointments, by
42 Geo. III. c. 85, and both statutes are to-day in force. They
have, however, been held to apply only to misconduct in office.
Ellenborough, C.J., thus characterizes the later statute (Reg. v.
Shaw, 5 M. & S. 403) : " The object of this Act was in the same
spirit with the Act of 11 & 12 William III., to protect His
Majesty's subjects against criminal and fraudulent acts com-
mitted by persons in public employment abroad, in the exercise
of their employments; to reach a class of public servants which
that statute did not reach and to place them in pari delicto with
governors. It has no reference in spirit or letter to the commis-
sion of felonies. . . . The reason of the thing, a priori, would
lead us to conclude that the jurisdiction as to trial of felonies
should be restrained to the local Courts.''

134 CANADIAN constitution: imperial limitations.

POWEKS.

(1) Foreign Relations.

Internationally, state recognizes only state. A
colony, no matter how complete for purposes of local
self-government its political organization may be, is
nevertheless a subordinate community and has no
place in the councils of the nations. It cannot there-
fore be, internationally, a party to an act of state.
In all intercourse with foreign powers the British
nation is represented by the Crown, acting only upon
the advice and with the consent of the UtifAsft min- yC-
istry. The appointment of those who are to act as
the accredited agents of the nation rests necessarily
with the Crown in Council (Imperial). Treaties and
diplomatic arrangements of all sorts are made be-
tween His Britannic Majesty as the Empire's repre-
'sentative and embodiment and the executive head of
each foreign state. Over none of these matters have
the colonial governments or legislatures any control
or jurisdiction, prima facie.

Treaties : their colonial operation.

The British North America Act indeed pro-
vides : —

132. The Parliament and Government of Canada shall
have all powers necessary or proper for performing the
obligations of Canada or of any province thereof, as part of
the British Empire, towards foreign countries, arising under
treaties/ between the Empire and such foreign countries.

Inferentially there is a statement here that Im-
perial treaties may impose obligations upon Canada
and its provinces; but the section itself imposes
none. Nor is anything said as to the nature and ex-
tent of these obligations in the event of the Cana-

THE CROWN IN COUNCIL (IMPERIAL). 135

dian Parliament and Government taking no step to ^
recognize or meet them. And, manifestly, no treaty-
making power is conferred by the section.

This is, perhaps, the most important of the manjy
questions which arise touching Canadian relations
to foreign states and foreigners. It presents itself
in two aspects: (1) To what extent, if any, can
the treaty-making power of the Orown operate to
alter or affect private rights as to person or pro-
perty? (2) Is an Imperial treaty a law of the
Empire so as to limit the power of a colonial
legislature to make laws which, but for the treaty,
would ordinarily be within its competence? The
question, of course, in either aspect is as to an
Imperial treaty apart from Imperial legislation
sanctioning it, or making provision for its operation.
Such legislation may be expressly or by necessary
intendment extended to the colonies, one or more;
in which case it is both a law and a limitation upon
legislative power in any colony to which it so extends.

But is a treaty in itself the equivalent of an
Imperial Act ? The answer must, it is submitted, be
in the negative. The Crown, without Parliament,
cannot by bargain with a foreign power, any more
than in any other way, make any alteration in the
law of the land either of the United Kingdom or of
any colony above the rank of a Crown colony; and
no ti^eaty can of itself be a limitation upon the
legislative power conferred upon Canada by Imper-
ial Act. The authorities which either support these
views or render them doubtful merit careful atten-
tion.

In a despatch from the colonial office in 1872 this
statement appears: ** Her Majesty's Government
apprehend that the constitutional right of the Queen
to conclude treaties binding on all parts of the Em-
pire cannot be questioned, subject to the discretion

136 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

of the Parliament of the United Kingdom or of the
colonial parliaments, as the case may be, to pass any
laws which may be required to bring such treaties
into operation. ' ' *

This may be taken to express the view of the law
officers of the Crown in England at that date, and it
recognizes that a treaty may fail of operation in the
absence of Imperial or colonial legislation, as the
case may be. Failing such legislation, in what sense
does the treaty bind ?

The question as to the effect of a treaty in regard
to private rights, both as to person and property, is
discussed in but few cases. And, it should be ob-
served, the United States authorities afford but little
direct assistance because by an express provision in
their constitution treaties duly made are ** the su-
preme law of the land '' equally with Acts of Con-
gress duly passed.^ Nevertheless, even there, if
the treaty calls for payment of money, legislation
would be necessary to carry out its provisions.®

That a treaty made in time of peace does not of
itself without statutory authority extend so far as to
alter the law either as regards individual rights in
property, rights of action, or as to personal liberty
is clearly established. For example :

A foreign ship is ordinarily liable to be arrested
in an action in rem if within British waters. War-
ships of a foreign power are excepted from this gen-
eral rule. But it was held by Sir R. Phillimore in
The Parlement Beige ^ that a convention between
Her Britannic Majesty and the King of the Belgians
could not arbitrarily and contrary to the fact give to
the government-owned Belgian mail-packet plying

* Todd, Pari. Gov. in Brit. Col., Ed. 1880, 196.

"Art. VI.: see U. 8. v. Schooner ''Peggy," 1 Cranch 103.

'^Kent, Comm.

' (1879), 48 L. J. P. 18.

THE CKOWN IN COUNCIL (IMPERIAL). 137

between Ostend and Dover the character of a public
ship of war so as to render her immune from arrest
in an action for damages suffered in a collision in
Dover Harbour between her and another ship.^

" If the Crown had power without the authority of Par-
liament by this treaty to order that the Parlement Beige
should be entitled to all the privileges of a ship of war
. . . the right of the subject — but for the order, unques-
tionable— to recover damages for the injuries done to him
by her is extinguished. This is a use of the treaty-making
prerogative by the Crown which I believe to be without pre-
cedent and in principle contrary to the law of the consti-
tution.^' »

Sir E. Phillimore instances the Declaration of
Paris of 1856, by which certain of t:he Great Powers
came to an agreement as to certain of the rights of
belligerents (to that time notoriously matter of dis-
pute) as a treaty not requiring parliamentary sanc-
tion. It dealt with national, not private, rights.

The treaty in question before him was itself a
sequel to the Treaty of Berne of 1874 respecting in-
ternational postal arrangements and that treaty had
been carried into effect by an Imperial Act which
recited that the treaty and its regulations ^* cannot
be carried into effect except by the authority of
Parliament''; and in the judgment of Sir E. Philli-
more other instances are cited of parliamentary
ratification of treaties^^ involving the public revenue
and taxation.

*Tlie Court of Appeal, it is true (see 5 P. D. 197), reversed
this decision, but upon the ground that Sir R. Phillimore had
unduly limited the exempted class; that it covered not only
ships of war but also any public ship of a foreign power engaged
in carrying out a national purpose, such as the transmission of
mails. No view was expressed as to the effect of the convention,
as the packet did not stand in need of its protective clauses.

»/&., at p. 24.

^"An earlier case before Lord Stowell, The Elsebe Maas, 5
C. Rob. 123, involving a question as to the restoration of prizes

138 CANADIAN" CONSTITUTION : IMPERIAL LIMITATIONS.

In two cases ^ it was held that the International
Convention for the Protection of Industrial Pro-
perty (patents, trade marks, etc.) signed at Paris in
1883, to which Great Britain and the United States
afterwards acceded, conld not have effect given to it
in regard to certain United States trade marks by
reason of the provisions of the English Act then in
force ; in other words, that the Convention could not
override existing law. In the earlier case, Sterling,
J., after referring to the article of the Convention
upon which the applicants relied, said :

" By that article Her Majesty is now bound. Certainly,
according to my construction of the Act, the Act does not
afford the means of carrying out that article and it will no
doubt be for Her Majesty's Government to consider . . .
what legislative steps ought to be taken to give effect to that
article if necessary. But with that I have nothing to do;
I have simply to consider this question, dealing as I am with
and being bound by a statute of the realm.''

Registration was refused in this case because the
application was not made within the time limited by
the Imperial statute, the Convention containing no
such limitation. In the later case, registration was
refused because the trade mark did not satisfy in re-
gard to the signs composing it the legislation of
Great Britain, while the Convention expressly de-
clared that registration should not be refused upon

taken during war, was treated by Sir R. Phillimore as not
decisive of the question before him, as that ease had turned upon
the Crown's right (recognized indeed in the Prize Act then in
force) to restore prize at any time before actual condemnation,
thus, of course, depriving the captors of the fruits of the capture.
And the case before the Supreme Court of the United States,
U. 8. V. The Peggy, 1 Cranch 103, was treated as turning upon
the same point; but it seems clear upon perusal of the report
that it really turned upon the express clause in the constitution
to which reference has already been made.

^In re The California Fig Syrup Co.'s Trade Mark (1888), 58
L. J. Ch. 341: Stirling, J., In re the Carter Medicine Co.'s Trade
Mark (1892), 61 L. J. Ch. 716: North, J.

tiTe crown in council (imperial). 139

such a ground so long as the requirements of the
law of the state where the trade mark had been
originally registered were satisfied.

In 1892 the Privy Council had to consider the
effect of a treaty between Great Britain and France
by which a modus vivendi had been arrived at in
regard to the Newfoundland fisheries.^ One of the
terms agreed to by Great Britain was that no lobster
factories would be permitted to operate on those
parts of the coasts of the island colony where the
French enjoyed rights of fishery under earlier
treaties. A British ship of war was sent to enforce
observance of the terms of the modus vivendi and
her captain took possession and stopped the working
of a factory within the area of prohibition. There
had been no statutory confirmation of the arrange-
ment, either Imperial or colonial, and the captain
was held liable in damages for what was held to be
an unauthorized trespass upon private property.

" The learned Attorney-General, who argued the case be-
fore their Lordships on behalf of the appellant, conceded that
he could not maintain the proposition that the Crown could
sanction an invasion by its officers of the rights of private in-
dividuals whenever it was necessary in order to compel obedi-
ence to the provisions of a treaty. The proposition, he con-
tended for, was a more limited one. The power of making
treaties of peace is, as he truly said, vested by our constitu-
tion in the Crown. He urged that there must of necessity
also reside in the Crown the power of compelling its subjects
to obey the provisions of a treaty arrived at for the purpose
of putting an end to a state of war. He further contended
that, if this be so, the power must equally extend to the pro-
visions of a treaty having for its object the preservation of
peace; that an agreement which was arrived at to avert a
war which was imminent was akin to a treaty of peace, and
subject to the same constitutional law. Whether the power
contended for does exist in the case of treaties of peace,

^Walker v. Baird (1892), A. C. 491; 61 L. J. P. C. 92.

140 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

and whether, if so, it exists equally in the case of
treaties akin to a treaty of peace, or whether in both
or either of these cases interference with private rights
can be authorised otherwise than by the Legislature,
are grave questions upon which their Lordships do not
find it necessary to express an opinion. Their Lordships
agree with the Cburt below in thinking that the allegations
contained in the statement of defence do not bring the case
within the limits of the proposition for which alone the
appellant's counsel contended."

Anson terms this judgment an evasion;^ but it
must be taken to affirm that the treaty in question
was not a treaty of peace nor akin thereto as in-
tended to avert imminent war, in which cases alone
the question would be arguable.

Question has also arisen as to the power of the
Crown to surrender by treaty any part of the na-
tional territory, without parliamentary authority.
It was exhaustively discussed before the Privy
Council in 1876 ^ but, as their Lordships held that
no cession had taken place, it became unnecessary
to decide the point. The High Court of Bombay had
indeed denied the power of the Crown to cede terri-
tory in time of peace and their Lordships went so far
as to say that they had such grave doubts of the
correctness of the ^* general abstract doctrine " laid
down by the High Court that they put their affirm-
ance of the judgment upon the other ground. When,
in 1890, Heligoland was ceded to Germany the ces-
sion was made subject to the approval of Parlia-
ment. This was obtained but it was very strongly
argued that no such approval was required.^ Distinc-
tions were drawn between the cession of territory
after a war and during a time of peace, and between
territory in Crown colonies, in colonies as to which

« Law and Custom of the Const., 2nd ed., Pt. II., 298.
*Damodhar Gordhan v. Deoram Kangi (1876), 1 A. C. 352.
^ Anson ^ ih., 299.

THE CROWN IN COUNCIL (IMPERIAL). 141

Parliament had legislated, and in colonies with re-
presentative assemblies; but it is deemed unneces-
sary to do more here than refer to the argument
before the Privy Council in 1876 in the Indian appeal
above mentioned.

As to personal liberty, it has not been seriously
questioned that extradition treaties cannot of them-
selves and without legislation confer upon executive
officials any right to arrest or detain a person ac-
cused of crime committed abroad. Legislation is
necessary to legalize the arrest and to constitute the
necessary tribunals to pass upon the prima facie
case for surrender to be made out by the applying
country. It has, it is true, been held that the Im-
perial Extradition Act, 1870 ^ is to be read with and
is limited by the treaties to which it applies ; so that,
for example, where the Swiss treaty pf 1874 stipu-
lated that under it neither power should be asked to
surrender its own subjects, a British subject, whose
extradition was sought by Switzerland and who had
been committed for surrender under the unlimited
wording of the Extradition Act, was discharged
upon habeas corpus."^ But it has also been held that
the provisions of the treaty as to the form of the
requisition may be waived by the British authori-
ties f a holding which clearly denies to a treaty the
character of Imperial legislation and treats it as an
international contract merely. That the right to
hold for extradition depends upon and is entirely
governed by the Act has never been seriously ques-
tioned since the decision in Re Jacques Bessetf The
warrant of commitment having been held fatally
defective, it was nevertheless urged that the prisoner
should be remanded to custody, but the Court held

« 33 & 34 Vict. c. 52: see post, p. 195.
' R. V. Wilson (1877), 3 Q. B. D. 42; 48 L. J. M. C. 37.
^Re Counhaye (1873), L. R. 8 Q. B. 40; 42 L. J. Q. B. 217.
* (1844), 6 Q. B. 481; 14 L. J. M. C. 17.

142 CANADIAN constitution: imperial limitations.

that the gaoler could not detain him except under the
Act. ^' Our gaolers are not gaolers for foreign
states/' said Denman, C.J., thus judicially affirming
what he had stated in the House of Lords that there
is no common law right to surrender and ** indeed
no means of securing persons accused of crimes com-
mitted in a foreign country. '^ Under a writ of
habeas corpus at common law any person arrested
or detained upon such a charge otherwise than under
the Act would be certainly discharged. This subject
is one discussed elsewhere in this book.^° Here the
point to be emphasized is that no treaty with a for-
eign power can, of itself, without legislation, affect
the right of the individual to that freedom of person
which is the legal right of every man within British
territory.

(2) Does an Imperial treaty of itself act as a lim-
itation upon colonial legislative power? Is a colon-
ial Act, otherwise intra vires, inoperative because of
its repugnancy to an existing treaty with some for-
eign power? Let it be granted that treaties are
binding international contracts so far as there can
be binding contracts where there is no international
Court to enforce them, and that it is the clear duty of
the British ministry, as the sole Imperial council,
not only to urge Imperial or colonial legislation or
both wherever necessary to the honourable fulfilment
of treaty obligations, but also to disallow any colonial
legislation which puts obstacles in the path of na-
tional good faith ; it is the legal operation of treaties
as a limitation upon legislative power in the colonies
in the absence of legislative affirmance and aid that
now concerns us.

After the grant of representative institutions to a
colony by the Crown the Crown may no longer legis-
late for the colony;^ a fortiori it may not do so where

*"See post, p. 194 et seq.
^ See ante, p. 16.

THE CEOWN IN COUNCIL (IMPERIAL). 143

the legislative power of the colony is conferred
and defined by Imperial Act. That, within the lim-
its so defined, colonial legislative powers are ^ ^ plen-
ary powers of legislation as large and of the same
nature as those of Parliament itself '' is a- proposi-
tion often affirmed by the Privy Council.^ That is
itself the law of the land which it is not in the power
of the Crown, without Parliament, to alter or curtaiJ
by any agreement with a foreign power.

Subject therefore to the possible exceptions of a
treaty made to conclude a war,^ it seems clear that
the Crown in Council (Imperial) cannot by treaty
place any restraint on the legislative power of a
colony as conferred upon such colony by Imperial
Act.

Of Canadian legislation adopting an Imperial
treaty the Act of 1907, known as the Japanese
Treaty Act ^* is an instance. It was held to make
the provisions of that treaty part of the law of
Canada, subject only to the provisions of the Cana-
dian Immigration Act; and a provincial statute of
British Columbia designed to place further restric-
tions upon the immigration of Japanese into that
province was held pro tanto void.* That Canadian
legislation was necessary in order to effectuate the
treaty was not doubted by any of the Judges.

In conclusion, it may be suggested that the Col-
onial Laws Validity Act, 1865,^ is not conclusive

'See ante, p. 93 et seq.

^Forsyth, Cases and Opinions, 182, et seq. "When it was
resolved, in 1782, to recognize the independence of the North
American colonies, an Act of Parliament (22 Geo. III. c. 46), was
passed authorizing the Crown to make peace with the colonies
and to repeal and make void Acts of Parliament relating to
them." See also ante, p. 140.

^" 6 & 7 Ed. VII., c. 50.

*In re Nakane (1908), 13 B. C. Rep. 370. Earlier cases in
British Columibia <yn the subject of Asiatic immigration are re-
ferred to post, p. 672.

" See ante, p. 57.

144 CANADIAN constitution: impekial limitations.

upon the question. It recognizes that there may be
*^ orders and regulations, '^ not under Acts of Par-
liament, which may nevertheless have in a colony
the force or effect of Imperial Acts. But it seems
reasonably clear that the reference is to Crown
colonies as to which the Crown in Council (Imper-
ial) had still, in 1865, a right to legislate.^ *^ Orders
and regulations, ' ' moreover, is not an apt phrase to
cover a treaty. Subject to these observations, the
Colonial Laws Validity Act does enact, in effect,
that the only limitation upon colonial legislative
power is existing Imperial legislation or (confining
the matter to the Crown in Council) orders and
regulations made under such Imperial legislation.
A treaty made under the authority of or ratified by
an Act of the Imperial Parliament is in effect Im-
perial legislation and, as such, a limitation upon
colonial legislative power if extending to the colon-
ies; hui a treaty made without Parliament is not
legislation at all.

Acts of State : —

So far as concerns the internal government of
the Empire, there is no such thing as an *' act of
state '' into the legality of which the Courts will
not enquire. As between this Empire and foreign
nations or foreigners abroad, the Crown in Council
(Imperial) may take the responsibility of approving
acts, either before or after their commission,^
which as against the private persons affected by
them would be illegal and in such case British Courts
will leave the complainant to his diplomatic remedy.^
To constitute an act of state these two facts must
appear: First, the act must be done to one who is
not at the time a British subject either by birth or

® See ante, p. 16.

^ Buron v. Denman, 2 Exch. 167.

^ See judgment of Cockburn, C.J., in Feather v. R., ante, p. 130.

THE CEOWN IN COUNCIL (IMPERIAL). 145

by presence within the Empire;® and this in effect
means that an act of state, the legality of which the
Courts will not undertake to question, can take place
only without the state territory, except in the case
of diplomatic representatives and the case of the
alien refused admission at the threshold ;^^ Second,
the act must be sanctioned or adopted by the state, as
an act done by a duly authorized agent of the state.

It follows that a colonial government cannot be
a party to an act of state as above indicated ; and a
colonial governor or any other person connected
with a colony can perform an act of state — i.e., an
act into the legality of which a British Court, colonial
or other, should not enquire — only as an Imperial
officer under instructions from the British Ministry,
the Crown in Council (Imperial) ; and any such act
must, as intimated before, be done without the Em-
pire.^ No such ** act of state ** can be done by a
colonial' governor acting under the advice of the
colonial ministry.

In the latest case on the subject^ an action was
brought in Jamaica against the governor of that
colony for the seizure and detention in a port of the
Island of a British ship of which the plaintiff was
the charterer. The governor pleaded to the juris-
diction that his act was an ^* act of state '^ done by
him as governor and in the reasonable exercise of
his discretion as such. The Supreme Court of

^See post, p. 166.

^'^Musgrove v. Chung Teeong Toy (1891), A. C. 272; 60 L. J.
P. C. 28.

^For a very able discussion of this question, see the judg-
ments of the Victorian Judges in Musgrove v. Chung Teeong Toy,
14 Vict. L. R. 349; 5 Cart. 570. The judgment of the Privy Coun-
cil {uM supra), does not touch this point. It held that the
Victorian Act as to Chinese exclusion did convey the necessary
power to the officer who had acted; but the decision was put on
the broad ground that an alien has no right enforceable by
action to enter British territory. See ante, p. 107.

'Musgrove v. Pulido, L. R. 5 App. Cas. 102; 49 L. J. P. C. 20.

CAN, CON. — 10

146 CANADIAN constitution: imperial limitations.

Jamaica gave judgment of respondeat ouster against
the governor. The Privy Council affirmed this
judgment, treating the plea as a dilatory plea of
privilege; but they also examined it as a plea on the
merits and held it insufficient as not alleging any
facts upon which the Court could judge whether in
truth the act complained of was or was not an act
of state. What is such an act is discussed in the light
of earlier cases. The result may be thus summar-
ized : A colonial governor may be authorized by his
•commission to perform that act of Sovereign power
described as an act of state; but the Courts willin
any case enquire so far into the facts as may be
necessary to determine whether or not it is an act of
state.^ If the act is one covered by the governor's
commission and is, moreover, an act which the
sovereign could himself lawfully do under the law of
the land that of course is a defence upon the merits.*
But if the act be one within the commission but one
which does not pretend to be justified by the muni-
cipal law, it must be an act of Sovereign power in
relation to international or extra-municipal affairs
in which case the Courts will not enquire further.**
Indeed it may be said that the power of the Crown
in international affairs is of so widely discretionary
a character, so little touched by statute law, that
municipal Courts must deem its exercise as always
lawful ; and in this view it is correct to say that every
official act must be justified by law.

As between Crown and subject — this includes any
person within British territory — ^the legality of any
act done within the Empire may be questioned before
the ordinary Courts, and the orders of the Crown in
Council or indeed of any superior officer cannot

^ Rajah of Tanjore's Case, 13 Moo. P. C. 22.
* Cameron v. Kyte, 3 Knapp P. C. 332.

^ Rajah of Tanjore's Case, uM supra. See ante, p. 131, as to
the position generally, of a colonial governor before the Courts.

THE CROWN IN OOUNCII. (IMPERIAL). 147

avail to render legal any act unauthorized by law.
And the same rule applies to any act done anywhere
to the British subject by birth.® ^' State necessity '*
was put forward as justifying the seizure of papers
under a warrant of a secretary of state during the
exciting times following Wilkes' publication of the
notorious No. 45 of the North Briton.^ Lord Cam-
den thus dealt with the argument :^

" It is then said that it is necessary for the ends of gov-
ernment to lodge such a power with a state officer and that
it is hetter to prevent the publication before than to punish
the offender afterwards. I answer, if the legislature be of
that opinion they will revive the Licensing Acts. But if
they have not done that I conceive they are not of that
opinion. And with respect to the argument of state neces-
sity or a distinction that has been aimed at between state
offences and others, the common law does not understand that
kind of reasoning nor do our books take notice of any such
distinctions.® Sergeant Ashley was committed to the Tower
in the 3rd of Charles I. by the House of Lords -only for
asserting in argument that there was a " law of state "
different from the common law and the ship-money Judges
were impeached for holding, first, that state necessity would
justify the raising money without consent of Parliament;
and, secondly, that the King was judge of that necessity.

If the King himself has no power to declare when the
law ought to be violated for reasons of state, I am sure we,
his Judges, have no such prerogative."

Even the duty of the Crown to carry out treaty
obligations cannot justify the invasion of private
rights.^^

^ Tohin V. R., Feather v. R. See ante, pp. 129-130.

'See Leach v. Money (1765), 3 Burr. 1692; Wilkes v. Wood
(1763), Lofft. 1.

'Entick v. Carrington (1765), 2 Wils. 275; Broom, at p. 605
(2nd ed.).

• Anson says that these words " will meet every case of this
character": Pt. II., 477 (2nd ed.).

^Walker v. Baird (1892), A. C. 491; 61 L. J. P. C. 92. See
ante, p. 139.

148 CANADIAN constitution: imperial limitations.

Powers (continued).
(2) In connection with the colonies.

1. To legislate:

The power of the Crown without Parliament to
legislate for conquered or ceded territory or for the
plantations has already been discussed in these
pages.^ No such power now exists so far as the | b
self-governing colonies are concerned; subject to
this apparent but not real exception, that an Im-
perial Act extending to the colonies (one or more)
may and not infrequently does confer a subordinate
and delegated power upon the Crown in Council to
settle details and make regulations for the better
carrying out of the purposes of the Act. And such
orders in council (Imperial), though valid only if
within the power conferred,^ are in effect Imperial
legislation ; and colonial legislation repugnant there-
to is ^^ to the extent of such repugnancy but not
otherwise ' ' void and inoperative.^

2. To appoint governors :

As has been already pointed out, the British
North America Act makes no provision as to the
appointment of the Governor-General of Canada.'*
There is, in fact, no Imperial Act dealing with the
subject of the appointment of the Crown's represen-
tatives in the colonies generally or in particular, un-
less (as in the case of the Canadian provinces) the
appointment was intended to be placed in other:
hands than those of the British Ministry, i.e., of the

^ Ante, pp. 11, 15 et seq.

2 Atty.-Gen. v. Bishop of Manchester, L. R. 3 Eq. 436.
^Colonial Laws Validity Act (1865). See ante, p. 57.
*Ante, p. 27.

THE CROWN IN COUNCII. (IMPERIAL). 149

Crown acting by and with the advice of the Imperial
council. The lieutenant-governors of the Canadian
provinces are appointed by the Governor-General in
Council,^ that is to say, by the Dominion Ministry.
Their appointment is an appointment by the Crown,
represented to that end by ^^a governing body who
have no power and no functions except as represen-
tatives of the Crown. ^ ' But under the British North
America Act that is the only legal method of ap-
pointment; the Crown's prerogative in that regard
has been taken from the Crown in Council (Im-
perial) and lodged in the Crown in Council (Domin-
ion). In Australia, on the other hand, the appoint-
ment, not only of the Governor-General of the Com-
monwealth, but also of the various State Governors
is with the British Ministry, the Crown in Council
(Imperial).®

The Imperial Parliament has, indeed, legislated
in regard to the conduct of colonial Governors ;^ but
the Crown's prerogative to appoint whom it will
to represent it in a colony has never been the sub-
ject of any general restrictive legislation. And, it
is hardly necessary to say, any colonial attempt at
legislation along this line would be a declaration of
independence; and would be clearly void as repug-
nant to the constitutional charter, whether Gover-
nor's Commission or Imperial Act.^

(3) To disallow Colonial Legislation.

In settling the form of government for the vari-
ous colonies,^ the Crown has from the beginning
reserved to itself the right to disallow colonial legis-

"B. N. A. Act, s. 58.
" See ante, p. 27.
^ See ante, p. 133.
* See ante, p. 128.
^ See ante, p. 15.

150 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

lation ;^^ and in the first Imperial Act wMch framed
a colonial government (The Quebec Act, 1774), and
in all Acts since passed to that end, the right is
reserved. As to Canada the right is statutory, and
its mode of exercise is provided for in the British
North America Act :

56. Where the Governor-General assents to a bill in the
Queen's name, he shall by the first convenient opportunity
send an authentic copy of the Act to one otf 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 certificate of the Secretary of State of the day on
which the Act was received by him) being signified by the
Governor-General, by speech or message to each of the
Houses of the Parliament, or by proclamation, shall annul
the Act from and after the day of such signification.

At common law no such time limit existed, and
this is one instance of the conversion of an unlimited
common law prerogative into a limited statutory-
power.^ The two years being allowed to pass with-
out such disallowance, the executive department of
the Imperial government can no longer interfere
with the operation of the Act; nothing short of re-
pugnant Imperial legislation can weaken its validity.

The power of disallowance bears no necessary
relation to the question of legislative competence.
As expressed by the Chancellor of Ontario,^ it * ^ may
operate in the plane of political expediency and in
that of jural capacity;'' but the jurisdiction of the

" See, for example, the Commission to Gov. Cornwallis of Nova
Scotia: Houston, Const. Doc, at p. 12. There is an interesting
discussion as to the nature of this right, and whether it is a
legislative or judicial power in the Crown in Council, in Brinton
Coxe, " Judicial Power and Unconstitutional Legislation," p. 20'3,
et seq. See ante, p. 51.

^ See ante, p. 122.

^Pardoning Power Case, 20 O. R., at p. 245; 5 Cart, at p. 546.

THE CROWN IN COUNCII, (IMPERIAL). 151

Courts to pass upon the question of the legislative
competence of the Federal Parliament to enact a
particular law operates in the plane of jural capacity-
alone, and is not affected in any way by the non-ex-
ercise of the power of disallowance under this sec-
tion 56.

The power to disallow provincial legislation has
been taken from the Crown in Council (Imperial)
by the British North America Act, and is now
lodged with the Crown in Council (Dominion).^

90. The following provisions of this Act respecting the
Parliament of Canada, namely, the provisions relating to
appropriation and tax bills, the recommendation of money-
votes, the assent to bills, the disallowance of Acts, and the
signification of pleasure on bills reserved, shall extend and
apply to the legislatures of the several provinces as if those
provisions were here re-enacted and made applicable in terms
to the respective provinces and the legislatures thereof, with
the substitution of the Lieutenant-Governor of the province
for the Governor-General, of the Governor-General for the
Queen and for a Secretary of State of one year for two
years, and of the province for Canada.

This is, perhaps, the proper place to advert to a
strange error into which Dr. Dicey has fallen in the
work to which frequent reference has already been
made — a work which, in its elucidation of the prin-
ciple of the supremacy of law as the fundamental
principle of Anglo-Saxon government the world
over, stands to-day facile princeps; but which, in its
reference to the colonies generally, and to Canada
in particular, displays an apparent lack of apprecia-

' It may be noted that prior to Confederation the power of
disallowance rested solely upon prerogative so far as the Mari-
time Provinces were concerned. In (old) Canada the power was
limited by the Union Act, 1840 (3 & 4 Vict. c. 35: Imp.), sec. 38,
to two years, as in the B. N. A. Act.

152 CANADIAN constitution: imperial limitations.

tion of the true position of affairs/ To confine at-
tention, however, to this particular error : Dr. Dicey
is completely astray in laying it down that the lodg-
ing of this veto power in the hands of the Governor-
General in Council — i.e., with the Dominion govern-
ment— was intended to obviate the necessity for re-
sort to the Courts for the decision of constitutional
cases involving the determination of the line of divi-
sion between the sphere of authority of the Domin-
ion Parliament and that of a provincial Assembly.

^^ The futility of a hope grounded on a miscon-
ception of the nature of federalism,'' is a strong
expression,^ and contains a very direct charge that

*"Tlie Law of the Constitution," The first chapter of Dr.
Dicey's book — " On the Nature of Parliamentary Sovereignty " —
contains nothing which might not be, with equal truth, said of
the legislative bodies throughout Canada. What he writes in
disproof of " the alleged legal limitations on the legislative sov-
ereignty 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 of Parlia-
ment— is all equally applicable to the position of Canadian legis-
latures. And with reference to them, too, it may be said, that
there is no competing legislative power either in the Crown,
in either branch of the legislature (where the legislature happens
to be bi-cameral), in the constituencies, or in the law Courts.
The second chapter " is to illustrate the characteristics of such
sovereignty, (by comparing the essential features of a sovereign
Parliament like that of England, with the traits that mark non-
sovereign law-making bodies," — among which he classes colonial
legislatures. Yet, on a later page he lays it down: "When Eng-
lish statesmen gave parliamentary government to the colonies,
they almost, as a matter of course, bestowed upon colonial legis-
latures authority to deal with every law, whether constitutional
or not, which affected the colony, subject, of course, to the pro-
viso, rather implied than expressed, that this power should not
be used in a way inconsistent with the supremacy of the British
Parliament. The colonial legislatures in short are, within their
own sphere, copies of the Imperial Parliament. They are, within
their own sphere, sovereign bodies, but their freedom of action
is controlled by their subordination to the Parliament of the
United Kingdom."

" To charge the men who had in hand the framing of the
scheme of Confederation with "misconception of the nature of

THE CROWN IN COUNCIIv (imperial). 153

the Fathers of Confederation did not know what
they were about in this matter. One who, like Dr.
Dicey, speaks with authority, should not have pen-
ned such a grave charge without first consulting
the debates which took place in the various legisla-
tures upon the ^^ Confederation Eesolutions.'' Had
he done so, he would have found that a very sharp
line of distinction was drawn between the exercise
by the Dominion government, as a matter of political
expediency, of the .power of disallowance of provin-
cial Acts, and the exercise by the Courts of the
judicial function of declaring an Act ultra vires. As
expressed by the Chancellor of Ontario,® the super-
vision touching provincial legislation entrusted to
the Dominion government works in the plane of
political expediency as well as that of jural capacity,
while the question for the Courts is as to the latter
merely. The framing of the Quebec Eesolutions,
upon which the British North America Act is

federalism " comes with rather bad grace from Dr. Dicey. He
speaks (p. 133), of a federal state as "a political contrivance
intended to reconcile national unity and power with the main-
tenance of state rights. " The end aimed at," he says, " fixes the
essential character of federalism." A very clear statement this;
and yet. Dr. Dicey apparently fails to note that " state rights "
may be paraphrased and generalized as "local self-government,"
and that his definition of federalism is clearly applicable to those
"conventions" of the British Constitution which regulate the
relations between Great Britain and her colonies. There is, too,
another passage in which he is historically inaccurate. He treats
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 inter-
ference with individual rights, as being part and parcel of —
" connected with " — the same federal idea of division. In fact,
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 Mon-
tesquieu.

'The Pardoning Power Case, 20 0. R., at p. 245; 5 Cart., at
p. 546.

154 CANADIAN constitution: imperial limitations.

founded, was the work of the most eminent legal
minds of that day in Canada; and a glance at the
debates upon these Kesolutions will show that they
thoroughly appreciated the distinction pointed out
in later days by the Chancellor. Throughout the
debates it was clearly recognized that the exer-
cise by the Dominion government of the power of
disallowance was to be exercised in support of fed-
eral unity — e.g., to preserve the minorities in differ-
ent parts of the confederated provinces from op-
pression at the hands of the majorities. That it w^s
not intended to obviate the necessity for resort to
the Courts is apparent from one extract. Com-
plaint was made that, while the Dominion govern-
ment was invested with this veto power, no authority
was provided to supervise its exercise; and the
question was further asked : — What check will there
be upon Dominion legislation? The speaker^ pre-
sumed, for the purpose of his argument, that in each
of these cases the only check would be through the
Imperial government :

" Hon. Attorney-General Cartier. — The dele-
gates understood the matter better than that.
Neither the Imperial government nor the general
government will interfere, but the Courts of justice
will decide all questions in relation to which there
may be differences between the two powers.

'' A VOICE. — The Commissioner's Courts!

*^ Hon. Mr. Dorion. — Undoubtedly. One magis-
trate will decide that the law passed by the federal
legislature is not law, whilst another will decide
that it is law, and thus the difference, instead of
being between the legislatures, will be between the
several Courts of justice.

^ Hon. A. A. Dorion ; afterwards Sir A. A. Dorion, Chief Jus-
tice of Quebec. See Confed. Deb., p. 690.

THE CROWN IN COUNCII. (IMPERIAL). 155

'^ Hon. Attorney-General Cartier. — Should the
general legislature pass a law beyond the limits of
its functions, it will be null and void, pleno jure.^

'' Hon. Mr. Dorion. — Yes, I understand that; and
it is doubtless to decide questions of this kind that
it is proposed to establish federal Courts.''

The fact is that the power of disallowance vested
in the Governor-General in Council is precisely an-
alogous to the power of disallowance vested in the
King in Council over Dominion legislation. An Act
of the Dominion Parliament may run the gauntlet of
the home government, and yet be afterwards de-
clared by the Courts to be invalid. As is well known,
the supervision exercised by the law officers of the
Crown in England is directed to seeing that any
colonial Act submitted for their consideration is not
repugnant to any Imperial legislation; and they do
not pretend to examine Dominion Acts in order to
determine the question of their validity as being
within the range of subject matters confided to the
Parliament of Canada by sec. 91 of the British North
America Act. And so, as between Canada and its
individual provinces, the existence of the veto power
in the hands of the Dominion Ministry has no logical
relation whatever to the question of legislative com-
petence.® The position is thus tersely summed up
by the Privy Council :

" Their Lordships have to construe the express words of
an Act of Parliament which makes an elaborate distribution
of the whole field of legislative authority between two legis-
lative bodies, and at the same time provides for the confeder-
ated provinces a carefully halanced constitution under which

"See Theherge v. Landry, 2 App. Cas. 102; 46 L. J. P. C. 1;
2 Cart. 1; Brophy's Case (1895), A. C. 202; 64 L. J. P. G. 70; 5
Cart. 156.

"Leprohon v. Ottawa, 2 O. A. R. 522; 1 Cart. 592; Reg. v.
Chandler, 1 Hannay (N.B.), 558; 2 Oart. 437; and Brophy's Case,
uH supra.

156 CANADIAN constitution: imperial limitations.

no one of the parts can pass laws for itself, except under the
control of the whole acting through the Governor-General."^^

Nevertheless the Dominion Government does ex-
amine provincial legislation more or less closely in
order to determine its validity as being within pro-
vincial competence, and acts freely upon the opinion,
right or wrong, formed npon such examination. If
the opinion be right, no harm is done ; if wrong, much
harm may result without appeal. And, while the
functions of the Courts — the constitutional expound-
ers of the law — are thus dangerously usurped, the
responsibility of exercising upon proper occasion
that ^^ control of the whole '^ over every part, re-
ferred to in the passage just quoted, is evaded. This,
however, is a digression, perhaps unwarranted, into
the realm of practical politics.

Upon the expiration of the two years allowed by
sec. 56 for the disallowance by the King in Council
of Dominion legislation: (1) no Act of Imperial exe-
cutive authority can thereafter weaken its effect;
(2) repugnant Imperial legislation can alone over-
ride it.^ The first proposition is equally applicable
to the position of the Dominion executive in refer-
ence to provincial legislation after the -expiration of
the one year allowed by this sec. 90 for its disallow-
ance. To the extent to which intra vires Dominion
legislation conflicts with intra vires provincial legis-
lation, the former is of paramount authority.^ With
this limitation, the second proposition has no appli-
cation ; the federal Parliament cannot interfere with
the operation of a provincial Act; only repugnant
Imperial legislation can override it.

^''Lartibe's Case, 12 Ap. Cas. 575; 56 L. J. P. C. 87; 4 Cart., 7.
* See ante, p. 150.
2 See vost, p. 468.

THE CROWN IN COUNCII. (IMPERIAL). 157

4. To hear Appeals from Colonial Courts.

^' It is the settled prerogative of the Crown to
receive appeals in all colonial cases.'' ^ And the
question here is as to the power of a colonial legis-
lature to deal with this prerogative. The Imperial
Parliament may, of course, do so; ** the Crown
may abandon a prerogative, however, high and es-
sential to public justice and valuable to the sub-
ject, if it is authorized by statute to abandon it.''*
The question is: Can a colonial Act do away with
the right or authorize its abandonment? In the ab-
sence of express decision by the Judicial Committee
itself, the question is one not of easy solution.

Bearing in mind what Lord Selborne said,^ that
in determining the question as to the validity of any
colonial Act the only way is ^* by looking to the
terms of the instrument by which, affirmatively, the
legislative powers were created and by which, nega-
tively, they are restricted," and that it is not
for any Court of justice ^* to enlarge constructively
those conditions and restrictions, ' ' it may be argued
in Canada's case that the affirmative words, ^^ peace,
order, and good government,"^ coupled with the
express provision as to the constitution, mainten-
ance, and organization of a Court of Appeal for
Canada, and the establishment of additional Courts
for the better administration of the laws of Canada,^
are sufficiently wide to authorize legislation barring
further appeal from federal Courts ; and that in the
case of the Canadian provinces the words ^^ the

^In re Lord Bishop of Natal (1864-5), 11 Jur. N. S. 353 ; 3 Moo.
P. C. (N.S.), 115, at p. 156.

*R. V. Eduljee Byramjee (1846), 5 Moo. P. C. 276.
^R. V. Burah, L. R. 3 App. Cas. 889. See ante, p. 94.
« B. N. A. Act, sec. 91.
^16., sec. 101.

158 CANADIAN constitution: imperial limitations.

administration of justice in the province/'^ are
equally comprehensive. Against this it may be con-
tended that as Canada is ^^ under the Crown of the
United Kingdom/'^ and as this is a truly Imperial
prerogative^ '^ held by that Crown, and as no express
power is given by the British North America Act
to legislate in derogation of this prerogative, the
usual rule of interpretation should apply, namely,
that in the absence of such express words the power
to touch it is wanting.^ The question is one to be
settled by the Privy Council; but as it touches the
larger and very vital question as to the extent of
the right of self-government enjoyed in Canada
under the British North America Act it will be well
to consider the authorities.^

In a very early case, Chief Justice Vaughan,
under the heading, ** What the Parliament of Ire-
land cannot do,^^ said:

^^3. It cannot change the law of having judg-
ments there given reversed for error in England.'"

The question as to Irish appeals came up inci-
dentally. It was apparently settled practice even
then to entertain such appeals and it was argued
that there must be some English statute, then no

*/&. sec. 92, No. 14. Provincial legislation cannot bar an
appeal to the Supreme Court of Canada: see post, p. 538: so that
the question here would be as to an appeal per saltum only.

^ lb., preamble. See ante, p. 127.

" See post, p. 159.

^ Hardcastle, Statute Law, 3rd ed., 385. At p. 394, he says:
"The prerogative of the Crown to admit appeals from the col-
onies is not, and cannot be, limited or abolished by any colonial
legislation " : citing Gushing v. Dupuy, referred to infra, p. 160.

^ To say, in this connection, that " whatever belongs to self-
government in Canada belongs to the Dominion or the provinces
within the limits of the British North America Act" (Reference
Case, 1912, A. C. 571; 81 L. J. P. C. 210), really begs the question,
which is: Is this a matter of local self-government or a matter
concerning the government of the Empire?

* Craw V. Ramsay, Vaugh. 292. See ante, p. 127.

THE CROWN IN COUNCII, (imperial). 159

longer extant, to authorize them. But Vaughan,
C.J., held that no Act was necessary. ^^ A writ of
error lies not, therefore, to reverse a judgment in
Ireland by special Act of Parliament, for it lies at
common law to reverse judgments in any inferior
Dominions; and if it did not, inferior and provin-
cial governments, as Ireland is, might make what law
they pleased, for judgments are laws when not to
be reversed.''

Chief Justice Vaughan was evidently of opin-
ion that a colonial legislature could not derogate
from the prerogative right of the Crown to enter-
tain appeals from colonial Courts; and in 1867 the
Privy Council used this language: —

"Upon principle and reference to the decisions of this
committee it seems undeniable that in all cases, criminal as
well as civil, arising in places from which an appeal would lie,
and where either by the terms of a charter or statute the
authority has not been parted with, it is the inherent pre-
rogative right and on all proper occasions the duty of the
Queen in Council to exercise an appellate jurisdiction with a
view not only to ensure, as far as may be, the due administra-
tion of justice in the individual case, but also to preserve the
due course of procedure generally.^^*

The reference to '' the terms of a charter or
statute, ' ' would lead one to infer that as the charter
referred to would necessarily be an Imperial instru-
ment conferring a constitution upon a colony, the
statute meant to be indicated would be of the same
character. But at all events the intimation that
the appellate jurisdiction has a view to something
beyond the administration of justice in the individ-
ual case points to its Imperial character. Earlier
cases advert to this : that more is involved than the
individual suitor 's right : there is the Crown 's right

*AUy,-Gen. N. S. W. v. Bertrand, L. R. 1 P. C. 520; 36 L. J.
P. C. 51.

160 CANADIAN constitution: imperial limitations.

in the interest of the Empire to see to it that funda-
mental principles are not ignored in any of the
Empire's Courts. And as late as 1908 the Privy-
Council said: ^* The exclusion of the right to ap-
peal to his Majesty would therefore be a forfeiture
of existing rights on the part of sovereign and sub-
ject.''**

Nevertheless in recent years the Privy Council
has evaded any direct pronouncement upon the ques-
tion as to the power of a colonial legislature to ex-
tinguish the Crown's prerogative, or, in other words,
to enact that no appeal shall lie, even by special
leave, from the judgment of a colonial Court. When
the Supreme Court of Canada was established it was
the express intention of the Canadian Ministry to so
enact as to that Court,® but the home authorities,
we are told, intimated that the Queen's assent would
be withheld if such a clause were inserted, and in
fact the Act as passed expressly preserves to the
Crown the prerogative right in question.

Where a colonial Act provides for an appeal as
of right to the Privy Council such right of appeal
may be taken away by subsequent colonial legisla-
tion.^ But, in the case in which it was so held, an
appeal was entertained by Her Majesty in Her Privy
Council as an act of grace, the colonial statute not
professing to interfere specifically with the Crown's
prerogative in this respect; though it did provide
that the decision of the Canadian Court should be
'' final."

" The question of the power of the Queen to admit the
appeal as an act of grace gives rise to different considerations.
It is, in their Lordships' view, unnecessary to consider what

» In re Wi Matua's Will, 78 L. J. P. C, at p. 18.
^Todd, Pari. Gov. in Brit. Col., 150 (1st ed.)
'Gushing v. Dupuy, 5 App. Cas. 409; 49 L. J. P. C. 63. The
earlier cases are reviewed in this judgment.

THE CROWN IN COUNCII. (IMPERIAL). 161

power may be possessed by the Parliament of Canada to
interfere with the royal prerogative, since the 28th section
of the Insolvency Act does not profess to touch it; and they
think, upon the general principle, that the rights of the Crown
can only be taken away by express words, that the power of
the Queen to allow the appeal is not affected by this enact-
ment/'«

Eeference is also made in the judgment to a sec- -
tion in the Dominion ' ^ Interpretation Act, ^ ' ^ which
provides that an Act is not to be construed as in-
tended to interfere with the Crown's prerogative
unless the language is express to that effect; a
statutory statement of a well settled principle, as
their Lordships point out. A provision in a colonial
Act, that the judgment of the colonial Court is to
be ** final and conclusive,'' does not affect the
Crown's right to entertain an appeal by special
leave as an act of grace,^° though, as already men-
tioned, it may take away any appeal as of right,
existing under colonial Act^

In a case in which a Canadian statute provided
for an appeal ** to the Privy Council in England in
case their Lordships are pleased to entertain the
appeal, ' ' it was intimated that the provision ignored
** the constitutional rule that an appeal lies to Her
Majesty and not to this Board, and that no such
jurisdiction can be conferred upon their Lordships,
who are merely advisers of the Queen, by any legis-
lation either of the Dominion or of the provinces of
Canada. ' '^ This is a strong denial of the right of a
colonial legislature to legislate in derogation of the

»/&., 49 L. J. p. C, at p. 66.

^31 Vict. c. 1, s. 7, s.-s, 33. Now to be found in R. S. C.
(1906), c. 1.

^'Re Wi Matua's Will (1908), A. C. 448; 78 L. J. P. C. 17;
Can. Pac. Ry. v. Toronto (1911), A. C. 461; 81 L. J. P. C. 5.

^Indian Claims Case (1897), A. C. 199; 66 L. J. P. C. 11.

CAN. CON. — 11

162 CANADIAN constitution: imperial limitations.

Crown's constitutional prerogative in connection
with colonial appeals.

In none of the other cases since Gushing v.
Dupuy,^ — except, perhaps, in some recent Australian
appeals — has the Privy Council suggested a doubt as
to the validity of such colonial legislation. In every
case their Lordships have proceeded upon this, that
the colonial Act in question in the case before the
Board fell short of taking away the Crown's preroga-
tive by reason of the absence of express words to
that effect. As the larger question lies in limine^
the fact that it has of late been invariably passed
over is suggestive.

In certain Australian appeals since 1900, the
question is complicated somewhat by the provisions
of ^' The Commonwealth of Australia Constitution
Act, 1900."' This Act provides (sec. 74), that no
appeal shall be permitted to the Queen m Council
from any decision of the High Court (which is a
Federal Court) upon any question, howsoever aris-
ing, as to the limits inter se of the constitutional
Dowers of the Commonwealth, and those of the
States, or as to the limits inter se of the constitu-
tional powers of any two or more States, unless the
High Court shall itself certify that the question is
one that ought to be determined by Her Majesty in
Council. One appeal* was dismissed upon the hold-
ing that the question at issue fell within the prohibi-
tion of this Imperial Act, the constitutional validity
of which is, of course, beyond doubt. '^ The Act
further provides that except as mentioned in this
section (74) the Act was not to impair any right
which the Queen might be pleased to exercise by

=* See ante, p. 160.
"63 & 64 Vict. c. 12 (Imp.).

*Atty.-Genl. N. 8. W. v. Collector of Customs (1909), A. C.
345; 78 L. J. P. C. 114.
^ See ante, p. 157.

THE CROWN IN COUNCII, (IMPERIAL). 163

virtue of Her royal prerogative to grant special
leave to appeal from the High Court ; but the Com-
monwealth Parliament is expressly empowered to 1
make laws ^^ limiting the matters in which such 1
leave may be asked/' with this condition, however, ;
that any such proposed laws should be reserved by 1
the Governor-General for Her Majesty's pleasure. I
The grant of this power, thus limited, affords ground
for argument that in the absence of such permissive
Imperial legislation, the power would not exist. It
was held not to authorize federal legislation cur-
tailing the right of appeal from State Courts to the
Privy Council.^ In an earlier case,^ a federal Act
conferring federal jurisdiction upon certain State
Courts, and containing provisions purporting to V^^'

limit the right of appeal to the Crown in Council was ^^j ^
held not to be retrospective, '^ assuming them to be ^
within the powers of the Commonwealth legisla-
ture,'' that phase of the question not being further
discussed.

But this settled prerogative of the Crown to re-
ceive appeals in all colonial cases is to be under-
stood as limited to cases in which the colonial Courts
have exercised the ordinary jurisdiction of Courts
of justice. Upon the transfer to the Canadian Courts
from the Canadian Parliament of the jurisdiction to
try election petitions, it was held by the Privy Coun-
ciF* that the Crown 's prerogative ' did not attach,
the subject matter of adjudication touching the
privileges of Parliament, and being entirely alien
to the region of prerogative. And again,^ where a
colonial Court was entrusted with jurisdiction to
decide as between conflicting claims to Crown grants

"We&& V. Outrim (1907), A. C. 81; 76 L. J. P. C. 25.
'Col. Sugar Refining Co. v. Irving (1905), A. C. 369; 74 L. J.
P. C. 77.

""^ Theherge v. Landry, 2 App. Cas. 102; 46 L. J. P. C. 1.
•Moses V. Parker (1896), A. C. 245; 65 L. J. P. C. 18.

164 CANADIAN constitution: imperial limitations.

of land in the colony (a jurisdiction previously exer^
cised by Commissioners) the Court being ** guided
by equity and good conscience only . . . nor bound
by strict rules of law or equity/' it was held that
the functions of the Court were not strictly judicial,
and that the Crown's prerogative to entertain an
appeal did not, therefore, attach. In both these
cases,^ ^^ the subject matter of the protected jurisdic-
tion connoted functions conferred on the Court by
statute which would not otherwise have belonged to
it as the general distributer of justice.'' On the
other hand litigation in insolvency,^^ and in the
region of probate,^ have been held to be within the
ordinary functions of a Court of justice to which
the Crown's prerogative would attach. And it is
now definitely settled^ that the Crown may hear ap-
peals in criminal cases, though the right is very
sparingly exercised. Their Lordships do not exer-
cise functions as a general Court of Criminal Appeal.
They do not interfere unless * * by a disregard of the
forms of legal process or by some violation of the
principles of natural justice or otherwise, substantial
and grave injustice has been done. " ^^

»By an evident slip, in In re Wi Matua's Will (1908), A. C.
448; 78 L. J. P. C. 17; Gushing v. Dupuy (supra), is classed with
Theherge v. Landry (supra). Clearly Mose» v. Parker (supra),
was intended. The four cases are discussed and correctly classi-
fied in C. P. Ry. v. Toronto (1912), 81 L. J. P. C. 5.

^"Gushing v. Dupuy (1880), 5 A. C. 409; 49 L. J. P. C. 63.

^In re Wi Matua's Will (1908), A. C. 448; 78 L. J. P. C. 17.

""R. V. Joykissen Mookerjee (1863), 1 Moo. P. C. (N.S.), 273;
Falkland Island Go. v. R., ib., 299; A.-G. (N.8.W.) v. Bertrand
(1867), infra. Cf. R. w.Eduljee Byramjee (1846), 5 Moo. P. C.
276; R. V. Aloo Paroo, ib., 296; Lanier v. R. (1914), 83 L. J. P. C.
116; Glifford v. R., ib., 152; Ibrahim v. R., ib., 185.

'''In re Billet (1887), 12 App. Cas. 459.

CHAPTEE IX.

Allegiance : Nationality :

Natukalization : Aliens.

[Since this chapter was written a great advance has been
made toward securing uniform action throughout the Em-
pire in the matter of imperial nationality and the naturaliza-
tion of aliens ; and some, perhaps all, of the anomalies dis-
closed in the text will disappear. The Imperial Parliament
lately passed the British Natiomality and Status of Aliens
Adt, IGlJf,^ and the Parliament of Canada has passed The
Naturalization Act, 191 4,^ to come into force on January 1st,
1915. Both of these Acts are printed in the appendix; but
it has been deemed advisable to print this chapter as origin-
ally written.]

The modern conception of a State or Nation is
of an organized society occupying ^nd governing ab-
solutely a definite portion of the earth's surface.
Not all persons within the national territory are
members of the body-politic, and, of course, mem-
bers may be at times abroad. It is for each nation
to prescribe by its own municipal law the conditions
of political membership or citizenship. This is
Nationality, a term which as between nations can
only apply to an independent community as an
organic whole, regardless of territorial subdivi-
sions and of the method adopted for their govern-
ment, and no matter how, as between themselves,
those subdivisions may approach complete self-gov-
ernment.^

M & 5 Geo. v., c. 17 (Imp.)

"4 & 5 Geo. v., c. 44; amended in the recent war session, 5
Geo. v., c. 7.

^ " We are not disposed to give any countenance to the novel
doctrine that there is an Australian nationality as distinguished
■from a British nationality": per Griffith, C. J., in delivering the
judgment of the High Court of Australia in Atty.-Gen. of Com-
monwealth v. Ah Sheung (190'6), 4 Comm; L. R. 949.

166 CAN^ADiAN constitution: imperial limitations.

All, national subjects or citizens and foreigners
alike, within the territory of a modern State are
subject to the State's laws; and this subjection,
viewed with reference to the Sovereign under the
British monarchical system, is termed Allegiance.
And there exists a notion that there is some differ-
ence between the local allegiance due from one who,
from the standpoint of nationality, is the subject or
citizen^ of a foreign State, while he is present within
British territory, and the national allegiance duo
from the British subject, natural-born or natural-
ized.

Allegiance.

What was said on a previous page as to the
ancient and ill-defined customary powers of the King
at common law, known as the prerogatives of the
Crown,^ might be repeated here. The older authori-
ties* mystify rather than enlighten the ordinary
reader. The ligamen or tie between the Crown and
the subject is affirmed as reciprocally binding; but
what of positive right or duty is given or enjoined
by it, if it appear at all, appears most vaguely. And
as between local and national allegiance within the
realm one looks in vain in these days for any tangible
distinction between the commorant alien and the
national subject. Except in the domain of feudal
law which governed land-holding, there never was
any marked distinction between them so far as con-
cerned the civil as distinguished from the political
rights of the individual within the realm,"' and, as

'"Subject" is the term usually employed in monarchies;
" citizen " in republics. But there is no rigid rule. One reads
at times of a British citizen or of a subject of the United States.

^ See ante, p. 117.

* E.g., Calvin's Case as set out in Broom, Const. Law, 4 et seq.
(2nd ed.).

^ See ante, pp. 73-4.

ALLEGIANCE. 167

will be seen later, the special disabilities of the alien
as to land have in these days almost entirely disap-
peared.^ On the other hand, with the growing supre-
macy of commercial interests, a new statutory disa-
bility has made its appearance : an alien, even though
resident, cannot own a British ship or any share
therein."^ And there are a few individual statutes
relating to civil rights which are limited in their
operation to British subjects.^

But for the British subject and foreigner alike,
when within British territory, allegiance, both na-
tional and local, is comprised in, and does not extend
beyond, the duty to obey the law of the land. The
correlative duty resting upon the Sovereign to pro-
tect his subjects both local and national within the
Empire in return for their allegiance is comprised
in, and does not extend beyond, the duty to govern
the people according to law. All within the realm
are subject only to the law of the land; and all have
and need no protection other than that the law
affords. ^ ^ The law is the only rule and measure of
the power of the Crown and of the obedience of
the subject."®

Except in so far as by the statute law — and that
is now mainly in the realm of political rights — a dis-
tinction is drawn between the British subject and the
alien, the matter is of very little practical import-
ance. There is substantially nothing the Crown in
Council can command a British subject within the
realm to do or to abstain from doing, except by sta-
tutory authority.^^ And the same may be laid down

• In some of the colonies aliens are precluded from acquiring
Crown land by pre-emption or direct purchase from the Crown.

^Merchant Shipping Act, 1894, sec. 1; see pos^, pp. 212-3.
'See Bloxam v. Favre, post, p. 188.

• Sir R. Walpole, in 15 St. Tr. 115.

^**The writ ne exeat regno, except as a Court writ in civil
cases, is practically obsolete. See Forsyth, Cases and Opinions,

168 CANADIAN constitution: imperial limitations.

of the alien within our borders; though here, as
will appear, it may be argued that the Crown, with-
out Parliament, may command an alien to leave the
country/

As to the alien without the realm and so long as
he is without the realm, the law of the United King-
dom cannot, of course, touch him; but the same is
true, substantially, of the British subject abroad.^
The power of the British Parliament to legislate in
reference to the conduct of British subjects abroad
and to enforce such legislation in British Courts
within the realm is not here in question.^ The en-
quiry is as to the existence of any duty resting upon
the British subject abroad to which his allegiance
binds him, or of any right upon his part to that pro-
tection whi*ch it is the correlative duty of the Crown
to afford. Has allegiance, in the narrower sense of a
tie between the Crown and the national subject, any
bearing upon this enquiry? Modern nations do
recognize that the bond between a state and its mem-
bers is not to be taken as absolutely broken when, as
Mr. Hall puts it, * ^ the latter issue from the national
territory. ^ ' * A certain moral right to bind its own
subjects wherever they may be by its legislation is
accorded by international law to every state; and

164, 180. A colonial governor, it is conceived, could not issue
such a writ on the advice of colonial ministers without statutory
authoraty.

^ See post, chap. X., p. 191.

' " No country can there " — i.e., in another country — " exercise
jurisdiction over the persons of its subjects without the express
or implied consent of the territorial sovereign " : Hall, Foreign
Jurisdiction of the British Crown, 3. See ante, p. 65.

^ See ante, pp. 70-1.

* " Foreign Jurisdiction of the British Crown," 2. Mr. Hall
is spoken of by Kennedy, L.J., as *' that learned and careful
jurist": R. v. Crewe (1810), 79 L. J. K. B., at p. 895. Very free
use has been made of this masterly work in the preparation of
this chapter.

ALLEGIANCE. 169

the enforcement of these laws when its subjects re-
turn from abroad by punishment for their breach is
not cavilled at by foreign nations even if the act
were lawful in the place where it was done.^ The
British Parliament may indeed make laws which no
Court within the Empire can refuse to enforce as to
acts done abroad even by foreigners;^ but interna-
tional law would not recognize them, and their en-
forcement might well afford good ground for diplo-
matic remonstrance, where none would be thought
of if the legislation were limited to the subjects of
the enacting state. Similarly, the duty of a state to
protect its subjects when abroad is recognized be-
tween states as having a reasonable moral basis ; so
much so that where the principle of territorial sov-
ereignty can be conveniently yielded, a modified
jurisdiction is allowed to one state over its own sub-
jects within the territory of another."^

But, as has been said,^ a British subject abroad
is governed by British law only to the extent that
British law, common or statutory, professes to
govern his conduct abroad; and that is to a very
small extent. Of the unwritten law there is scarcely
a trace extant touching the right of the King over
his subjects abroad. It is almost entirely, if not en-
tirely, statute law.®

*^ To the King in his politic and not in his per-
sonal capacity is the allegiance of his subjects

*As, e.g., in R. v. Russell (1901), 70 L. J. K. B. 998.

® See ante, p. 87 et seq.

^ See ante, p. 66, post, p. 184.

^Piggott, Exterritoriality, 9.

'The Crown at common law might command the return of a
subject from abroad on pain of forfeiture of his property during
further absence: Forsyth^ 181. This was to aid in defending the
Kingdom; and the Army and Navy Acts now cover the ground:
post, p. 201. Court writs addressed to British subjects abroad
are all issued and served under statutory authority.

170 CANADIAN constitution: imperial limitations.

due. ' ' ^^ And that allegiance is nothing more nor
less than the obligation to obey the law, whether
that law have reference to matters within or without
the realm. With regard to matters within the
realm — property and civil rights and the criminal
law — little distinction now survives between the
British subject and the alien. It is as to the posi-
tion of the British subject abroad that British citi-
zenship in its true national sense — the Civis Romanus
sum of Lord Palmerston ^ — is of chief practical
importance, legal as well as diplomatic.

It is of prime importance therefore to determine
who is a British subject abroad; and it is in this
aspect that the nature and effect of naturalization
laws, both British and colonial, require careful
study. The first step is to enquire as to nationality
or national citizenship.

Nationality.

Nationality involves the idea of identification in
some way with the nation's territory. The ** rule
of Europe '' which had its origin in feudalism and
which dominated European nations until the days
of the Code Napoleon fixed birth within the national
territory as the one sure badge of national char-
acter, identifying a person for life with the nation
within whose territory he had been born. Rather
inconsistently some of these same nations claimed
as their own citizens the children born abroad of
their natural-born citizens, thus giving rise to ques-
tion as to a possible double nationality. The
changes wrought by the adoption by many European

"J2e Stepney Election (1886), 55 L. J. Q. B. 331, at p. 339;
per curiam, Coleridge, C.J., Hawkins, J., and Mathew, J.

^ " The Roman citizen was in this instance a Mediterranean
Jew, who chanced to be a British subject " : Morley, Life of Glad-
stone, Vol. I., 368.

NATIONALITY. 171

powers of the principles of the Code Napoleon is
shortly summarized by a ^' learned and careful jur-
ist '* thus:^

" Probably until the establishment of the Code Napoleon
by F^nce no nation regarded the children born of foreigners
upon its territory as aliens. In that Code, however, a prin-
ciple was applied in favour of strangers by which states had
loaig been induced to guide themselves in dealing with their
own subjects, owing to the inconvenience of looking upon
the children born abroad of natives as foreigners. It was
provided that a child should follow the nationality of its
parents ; and most civilized states, either in remodelling their
system of law upon the lines of the Code Napoleon or by
special laws, have since adopted the principle simply or with
modifications giving a power of choice to the child, or else,
while keeping to the ancient rule in principle, have offered
the means of avoiding its effects."

The Natural-horn British Subject.^"^

England long adhered to the old principle in all
its rigour. The common law rule was simple. Na-
tionality was a matter not of race but of birth-place.
Every one born within the King's dominions^ was
a natural-born British subject ; everyone born with-
out was an alien. The result was often startling.
The child born in France of English parents during
the mother's sojourn there, of however temporary
a character that sojourn might be, was an alien,
though his life was afterwards spent on British soil
and his material possessions and interests were all
centred there.* The child born in England of French

^ Hall, International Law, 2nd ed., 201-2. See note ante, p. 168.

^* See note at the beginning of this chapter. Both the Imperial
and the Canadian Acts there referred to oomtain a definition of
" natural-born British subject." See Appendix.

' Including, as within those dominions, British ships.

* " The English female owner of an estate or settlement, if she
comes to Dover and there lies in, produces issue inheritable,
being English issue; if she had been taken in labour at Calais

172 CANADIAN constitution: imperial limitations.

parents, though taken at once to France and never
again identified with British life or affairs, was
through life a British subject. To him the British
nation owed the duty of protection; to the other,
none. The absurdity in the case of the Englishman
accidentally, as it were, born abroad was recognized
and statutes were from time to time passed to re-
move it;^ and now the children and grandchildren,
born abroad, of a natural-born British subject are
themselves to be taken as natural-born subjects;
but not^ however, so as to be in themselves the root
for further extension, for the great-grandchild born
abroad is an alien.^ The absurdity in the other case
of the Frenchman born in England was modified in
diplomacy so far as France's claim to his allegiance
was concerned; but in law he was and could not be
other than a British subject prior to 1870. The
Naturalization Act of that year, both in its provi-
sions for throwing off an arbitrary and unnatural
British nationality and for acquiring a natural Bri-
tish nationality, was an attempt to bring a person's
right to political membership into some degree of
consonance with his real identification with the
nation's life and affairs.

But at common law the national character was
indelible,^ as expressed in the loose saying : * * once
a British subject always a British subject." The
status could not be got rid of except in the one case
of the cession of British territory followed by ad-
herence to the new government on the part of the

the issue would have been alien and could not have taken the
estate": per Lord Brougham in Jeffery v. Boosey (1855), 24 L.
J. Ex., at p. 105.

"25 Ed. III., St. 2 (as construed: see Doe dem. Duroure v.
Jones, 4 T. R. 308); 7 Anne c. 5; 10 Anne c. 5 ; 4 Geo. II. c. 21;
13 Geo. III. c. 21.

'DeGeer v. Stone, 22 Chy. D. 243; 52 L. J. Ch. 57.

''Re JEneas Macdonald, 18 St. Tr. 858; Fitch v. Weber, 6 Hare
63; 17 L. J. Ch. 73.

NATURALIZATION. 173

former British subject.^ The right of expatriation
is now, however, fnlly recognized by the Imperial
Naturalization Act, 1870.

The Naturalized British Subject.

Prior to 1844, an alien might acquire wholly or
in part the privileges of a natural-born British sub-
ject in two ways: (1) by Denization, which was the
prerogative act of the Crown in Council, evidenced
by Letters Patent, and (2) by Act of Parliament.^

(1) Denization *^ may be described as a sort of
inferior naturalization by which the person received
into the community of British subjects, enters it as
^ a new man ' whose capacities date only from the
moment of denization and are not as in naturaliza-
tion cast back for certain purposes to an earlier
period. ' ^ ^^ After 1844 it sank into an inferior posi-
tion, for by the Act of that year ^ certain restrictions
imposed by the Act of Settlement and an Act of the
first year of Geo. I. 's reign, not only upon the grant
of Letters Patent of Denization, but also upon the
passage of unlimited Acts of Naturalization ^ were

'^Jephson v. Riera, 3 Kn. P. C. 130; Doe d. Thomas v. Acklam,
2 B. & C. 771; 2 L. J. K. B. 129; with which compare Doe d.
Auchmuty v. Mulcaster, 5 B. & C. 771 ; 4 U J. K. B. 311. The last
two cases were as to the effect of the separation of the United
States from England.

'By operation of law, the inhabitants of territory acquired
from a foreign power by conquest or cession, become British
subjects If they choose to remain in the conquered or ceded
territory: Camphell v. Holl, Cowp. 204; Forsyth, 267, et seq.; Re
Marriage Laws, 46 S. C. R. 132.

^^ Hall, Foreign Jurisdiction of the British Crown, p. 31, et seq.

^7 & 8 Vict. c. 66 (Br.). See post, p. 175.

=* These provisions, which could not, of course, bind future
Parliaments (see ante, p. 2), were prompted by fear of the
Dutch and Hanoverian counsellors of Wm. III. and Geo. I. res-
pectively. Under them naturalized persons and denizens (unless
born of English parents) wei^e debarred from the Privy Council,
from both Houses of Parliament, from all offices of trust, civil
or military, and from receiving grants of land from the Crown.
They enjoyed the franchise at all elections, parliamentary or
municipal. See Hall, Foreign Jurisdiction, 32.

174 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

removed as to the latter but not as to the former.
As a rule, naturalized persons enjoy now all poli-
tical privileges;^ denizened persons are still under
the old disabilities. They need not, therefore, be
considered further although the Naturalization Act,
1870, expressly reserves the Crown's right in this
regard.

(2) An Act of Parliament might make of an
alien a natural-born British subject in the eye of
the law; in other words, it might give him that
status; or, it might merely confer on him all or some
of the privileges of a natural-born subject without
the status. That would be a question of construction
upon the Act itself.'* Naturalization ** hath the like
effect as a man's birth hath," and if all the privi-
leges of a natural-born British subject were con-
ferred that would, no doubt, be held to confer
nationality in the absence of qualifying words. Lord
Halsbury speaks of ^^ the nationality conferred by
naturalization,''** meaning necessarily, it is con-
ceived, complete naturalization. The view was ex-
pressed in an early case ^ that a British Natur-
alization Act was operative throughout the Empire ;
but this was obiter. The decision ^ was that an Act
of the Irish Parliament could not make a man a
naturalized subject in England so as to entitle him
to inherit land there. ^' Naturalization," said
Vaughan, C.J.,

" is but a fiction of law and can have effect but upon those
consenting to that fiction; therefore it hath the like effect as

^ But see Tomey Homma's Case, referred to post, p. 672 et seq.

*Mette V. Mette (1859), 28 L. J. P. 117.

*^ Tomey Homma's Case (1903), A. C. 151; 72 L. J. P. C. 23.
See post, p. 184.

^ Craw V. Ramsay, Vaugh. 274, at p. 280.

« Qiiwre. The Court was equally divided, " viz., the C. J. and
Tyrell, for the plaintiff; Wylde and Archer, for the defendant."
The plaintiff in whose favour the judgment of Vaughan, C.J.,
was pronounced would, therefore, fail.

NATUKALIZATION. 175

a man's birth hath, where the lawmakers have power but not
in other places where they have not."^ ISTaturalization in Ire-
land gives the same effect in Ireland as being born there, so
in Scotland as being born there, but not in England, which
consents not to the fiction of Ireland or Scotland, nor to any
but her own. . . . The law of England is that no alien
can be naturalized but by Act of Parliament with the assent
of the whole nation."

It was argued that there must have been
some English Act, then no longer extant, authoriz-
ing the Irish Parliament to naturalize generally.
Vaughan, C.J., held that no such English Act could
be presumed but he did not suggest that in such case
naturalization under the Irish Act would not be
effective in England, conferring in fact Imperial
nationality. As will be apparent later, this is not
without bearing upon the question of Canada ^s posi-
tion under the British North America Act.

The converse case is thus quaintly put:

" The people of England now do and always did consist
of native persons, naturalized persons, and denizened persons ;
and no people, of what comsistence so ever they be, can be
aliens to that they have conquered by arms or otherwise sub-
jected to themselves (for it is a contradiction to be a stranger
to that which is a man's own and against common reason
and publique practice)."

The operation of a private Act of Naturalization
passed by the British Parliament since 1844 must
depend upon its language, read perhaps, if general
words are used, in the light of the above judgment.^

In 1844, for the first time, provision was made
for the issue of certificates of naturalization;^ and

''I.e., it can have no ex-territorial operation.

• See Mette v. Mette (1859), 28 L. J. P. 117.

"7 & 8 Vict. c. 66 (Br.). It is declared (by 10 & 11 Vict. c.
83, sec. 3, reciting tliat do^ubts had arisen on the question) not
to extend to the colonies.

176 CANADIAN constitution: imperial limitations.

in 1870 was passed the Imperial Naturalization Act,
1870, to which as the existing Imperial Act on the
subject particular attention must be given/^

After wiping out, in effect, all the remaining dis-
abilities as to property (except British ships), under
which aliens had laboured since 1844 (sec. 2) and
after taking away (sec. 5) the right they had there-
tofore enjoyed of trial by a mixed jury (de media-
tat e linguae), the Act still left them under political
disabilities. His larger enjoyment of property was
not to ** qualify an alien for any office or for any
municipal, parliamentary, or other franchise;''
but in effect this political disability was all that
was left to distinguish him from the natural
born or naturalized British subject, save in the
one matter of ownership of a British ship; and
subject also to what is said on a later page as to
statutory privileges conferred on British subjects
eo nomine.^

The Act then proceeds to alter the law as to
expatriation so as to bring it into conformity with
modern ideas.^ The details of this branch of the
subject are beyond the scope of this work. Suffice
it to say that as to this feature as well, as many
others the Act is a really Imperial statute, extend-
ing either by express words or necessary intendment
to the whole Empire. British nationality in its wide
Imperial sense is the subject matter of the enact-
ment and Canadian legislation cannot alter it or do
other than implement it by consistent provisions.^
Other provisions of the Act are as clearly of local

"33 Vict. c. 14 (Br. and Imp.) : printed in Appendix. Amended
in matters immaterial here by 33 Vict. c. 102; 35-36 Vict. c. 39;
58-59 Vict. c. 43. But see note at the beginning of this chapter,
ante, p. 165.

^Post, p. 188.

^Report of Commrs.: Cockburn on Nationality.

^See ante, p. 59.

NATUEALIZATION. 177

application to the United Kingdom. Such a one
apparently in sec. 7, which sets out the conditions
upon which an alien resident in the United Kingdom
may procure a certificate of naturalization, the
effect of which is thus described :

" 7. An alien to whom a certificate of naturalization is
granted shall in the United Kingdom be entitled to all
political and other rights, powers and privileges and be sub-
ject to all obligations to which a natural-born British subject
is entitled or subject in the United Kingdom; with this quali-
fication, that he shall not, when within the limits of the
foreign state of which he was a subject previously to obtain-
ing his certificate of naturalization, be deemed to be a British
subject unless he has ceased to be a subject of that state in
pursuance of the laws thereof, or in pursuance of a treaty to
that effect."

Of this provision Mr. Hall says

The intention of the Act, no doubt, is to invest him
with like rights and obligations when within the jurisdiction
of foreign powers, subject to the important qualification"
(as to his position when in the state of which he had pre-
viously been, a subject). "The actual words of the section,
however, do not go to this length. The United Kingdom
and the state of which the naturalized alien was previously
a subject are the only states mentioned. His position in all
other countries is left open. At the same time, as these other
countries are not expressly excluded, the presumption is that
he remains clothed with all the rights of a subject that he has
been given in the country of his adoption. It is at least
tolerably clear that the executive government may assert for
him this position as between itself and foreign governments.
A state as a general rule must take its information upon the
law of a foreign country from the organ which is duly charged
with the conduct of external relations f^ and even if there be

*HaU, Foreign Jurisdiction, 25.

^* Courts — at least British Courts — do not act on any such
rule. Foreign law is to be proved as a fact on the evidence of
experts: see Phipson on Evidence, 4th ed., 359.

CAN. CON. — 12

178 CANADIAN constitution: imperial limitations.

a difficulty in the terms of the Act, it is certainly permissible
for a British Government in dealing with foreign powers to
take np its ground upon the unquestionable intention.
Hitherto the practice has been in accordance with this view
and naturalized persons *^ have heen invariably regarded as
occupying a position identical with that of natural-born
subjects of the Crown in all states other than their state of
origin."

But before a foreign Court the question might
well be a question of law and not one of diplomacy.
In a colony where, for example, the holder of a
certificate under the British Act might wish to hold
office or to vote, the question would clearly be one
not of diplomacy but of law; and the wording of the
statute seems clear : ' ^ shall in the United Kingdom
be entitled . . . and be subject, etc.'' It may be
proper to speak of this as conferring nationality;
but only quoad the United Kingdom. From a truly
national, that is to say, imperial standpoint, the
status of full citizenship is not conferred and in a
colony the status of alienage would, it is conceived,
still subsist. In 1836 a private Naturalization Act
was passed by the British Parliament for one
Bernard Mette which provided that * * he shall be
and he is hereby from henceforth naturalized and
shall be adjudged and taken, to all intents and
purposes, to be naturalized and as a free-born sub-
ject of the said United Kingdom;" and there were
no words one way or the other as to the territorial
operation of the Act. This was held to make him
so completely a British subject that, so long as he
retained an English domicile, he was governed by
British law as fully as a natural-born British sub-
ject and could not therefore validly contract mar-
riage abroad with his deceased wife's sister, though

^^J.e., persons holding certificates under the British Act. Mr.
Hall is very guarded as to the position of colonially naturalized
persons: see post, p. 181.

NATURALIZATION. 179

such a marriage was valid by the law of the place
where it was celebrated.'^ But, as already noted, the
Imperial Naturalization Act, 1870, contains in the
clause above quoted, express words of territorial
limitation ; so that it may be doubted if the decision
in Mette v. Mette would hold good as to one holding
merely a certificate under the British Act.

Colonial Naturalization Acts.'^^

The Imperial Naturalization Act, 1870, provides :

"16. All laws, statutes and ordinances which may be duly
made by the legislature of any British possession^ for im-
parting to any person the privileges or any of the privileges
of naturalization, to be enjoyed by such person within the
limits of such possession, shall within such limits have the
authority of law;'^

subject to disallowance as in ordinary cases.

Doubts had been expressed as to the power of a
colonial legislature to pass Naturalization Acts;"^
and it seems clear that British nationality could not
be conferred by any such Acts. It had been held by
the Privy Council that the status of an alien must
be determined by the law of England, while the con-
sequences of that status would depend upon the local
law.^ It does not seem possible to view these cases

''Mette V. Mette (1859), 28 L. J. P. 117. It had previously been
held in Brook v. Brook, 9 H. L. Cas. 193, that Lord Lyndhurst's
Marriage Act (as it is commonly called) did not aipply to colonial
or foreign marriages of persons not domiciled in England.

"* See note at the beginning of this chapter, ante p. 166.

" " All territories and places under one legislature are deemed
to be one British possession for the purposes of this Act": sec.
17. But the British North America Act, 1867, also places " Natur-
alization and Aliens" within federal jurisdiction: sec. 91, No. 25.

■'See preamble to 10 & 11 Vict. c. 83 (Imp.), referred to post,
p. 180.

'^Donegani v. Donegani (1835), 3 Knapp P. C. 63: from Lower
Canada: and Re Adams (1837), 1 Moo. P. C. 460. See also Mayor
of Lyons v. East India Co. (1837), 1 Moo. P. C. 175, in which it
was held that an alien could hold land in India. See also
Forsyth, 330.

180 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

as holding anything less than this, that only a truly
national law can determine nationality.^ That is in
itself an Imperial matter, a question of birth within
the Empire. What the consequences are to be of a
want of national character may be determined by
each colony for itself ,^^ subject of course to overrid-
ing provisions in the constitutional charter or in
Imperial legislation. All civil and even political dis •
abilities may be removed so far as some particularly
liberal-minded colony may be concerned; but the
status of alienage still remains. This agrees with
what was said by Strong, C. J., in 1897 :^

" The acquisition of British nationality is a matter upon
which the Imperial Parliament has the exclusive right of
legislation, although the effect of alienage upon the local
tenure of land may well be dealt with by a colonial legis-
lature.^^

In 1847 an Imperial Act was passed which re-
cited that doubt had arisen ^ as to the validity of
colonial Acts * * for imparting to divers aliens there
resident the privileges or some of the privileges of
naturalization to be exercised and enjoyed within
the respective limits of such colonies,'' and then
proceeded to validate all such colonial Acts.^ Sec.
16 of the Naturalization Act, 1870, is to the same

• See Craw v. Ramsay, referred to, ante, p. 174.

"See Forsyth, 330, quoting opinion of the law officers of the
Crown in 1850, that a colonial legislature could confer an office
of trust upon an alien.

^In re Bigamy Sections, 27 S. C. R., at p. 475. This was a
dissenting opinion on the larger question involved, as to which,
see ante, p. 111. But the law laid down in the passage quoted
is not commented on by any of the other Judges.

* These doubts were not merely as to nationality. Imperial
enactments — the Act of Settlement and an Act passed in 1 Geo.
III., as to which, see ante, p. 173, — were considered to stand in
the way of Colonial Acts. See Forsyth, 330.

' This was the Act in force when the British North America
Act, 1867, was passed.

NATURALIZATION. 181

effect, without the recital. The colonial Acts men-
tioned are not nationalizing Acts. They do not pur-
port to make of an alien an Imperial subject but
merely to impart to him within the colony the privi-
leges or some of the privileges of naturalization,
leaving his national character untouched. As to the
nation he is still an alien, though admitted more or
less completely to colonial citizenship in the particu-
lar colony. In the absence of permissive Imperial
legislation a colonial legislature could not confer
national status, and it seems clear that the Imperial
Naturalization Act, 1870, does not purport to con-
vey to a colonial legislature any such complete na-
tionalizing power. It may be proper to speak of an
alien who has taken the benefit of a colonial Act as a
British subject quoad the colony, but he has clearly
not acquired national status -^ and, as already inti-
mated,* a certificate under the British Act appar-
ently confers British citizenship only and not Im-
perial.

Mr. Hall thus deals with section 16 of the Im-
perial Act in reference to the effect of colonial legis-
lation under it :'^

" By the Act of 1870 it is provided that ' all laws, statutes,
and ordinances which may be duly made by the legislature
of any British possession for imparting to any person the
privileges, or any of the privileges of naturalization, to be
enjoyed by such person within the limits of such possession
shall within such limits have the authority of law.' No
language follows such as that which in the 7th section leads
to the inference that a naturalized British subject ^* must
be intended to keep his British character in countries other
than that of which he was a subject previously to his natur-
alization, and in it also if he has ceased to owe it allegiance.
A colonial Act would seem therefore on the terms of the Act

^Ante, p. 178.

* Hall, Foreign Jurisdiction, 28, et seq.; and see also at p. 127.

••I.e., a person holding a certificate under the British Act.

18^ CANADIAN constitution: IMPERIAL LIMITATIONS.

of 1870 to be operative only within the particular colony in
which it has been enacted and to be incapable of investing a
naturalized person with the quality of a British subject in
foreign states. The Naturalization Act does not however
appear to have been read quite in this sense ;^^ and it has
been the practice to issue passports to the holders of colonial
certificates of naturalization and to protect them in all
foreign countries other than their country of origin, on the
ground, it must be supposed, that when a person is treated
as a subject for all purposes in any part of the British do-
' minions, it is impossible for the state entirely to wash its
hands of him and his affairs the moment that he oversteps
the boundary of the empire.

The feeling is natural ; it is even inevitable. At the same
time it may well be that foreign tribunals, if called upon to
weigh the effect of colonial naturalization, may refuse to re-
gard it as possessing any international value."

To this a foot note is appended : " In a case arising in
France it has already been held by the Cour de Cassation
,(Feb. 14, 1890) that naturalization in a British colony ' does
not amount to true naturalization within the meaning of the
French Code Civil (Art. 17, sec. 1) and cannot cause the
holder of a colonial certificate to lose thereafter his character
of Frenchman.^ The case was one in which the appellant
wished to secure advantages from the possession of a French
national character; there is no reason to suppose that the
decision would have been different if it had been sought to
burden him with obligations."

" The difficulties, which have been already noticed as pre-
senting themselves in connection with colonially naturalized
persons in European states, re-appear with additions in Ori-
ental countries. In accordance with the practice elsewhere,

•''In Howell, on Naturalization, reference is made (p. 13), to
an opinion of the law officers that " a foreigner duly naturalized
in a British colony is entitled as a subject of the Queen in that
colony to the protection of the British Government in every
other state but that in which he was born and to which he owes
a natural allegiance." Cockburn, C.J., in his treatise on Nation-
ality (p. 38), agrees that this "would be the sounder view."

NATUEALIZATION. 183

they would no doubt be diplomatically protected, except in
their country of origin, and it is not likely that the right to
afford them diplomatic protoction would be gainsaid. But
would they be given the protection of the Consular Courts?
Would their civil disputes or would criminal charges iti which
they were involved be withdrawn from the local jurisdiction?
Would, for example, a Dutchman, naturalized in Australia, in
circumstances which deprived him of his nationality of origin,
be obliged to submit himself and his causes to the territorial
laws of Persia or Morocco ? It is impossible to suppose the
deliberate intention of the Legislature in 1870 to have been
to bring about such a result as that a European without any
other than a British nationality should find himself ruled in
life, and his property disposed of, on death, by Mohammedan
law.*^" Upon the terms of the Act, however, it seems hard to
avoid the conclusion that this is the situation in which he is
placed."

In another colony or in England the question
would clearly be one of law and not of diplomacy;
and it may well happen that a person who has ac-
quired all or some of the privileges of naturalization
in one colony might properly be excluded or ex-
pelled from another as an alien.®

The British North America Act, 1867, is of ear-
lier date than the Imperial Naturalization Act of
1870 ; and the power conferred upon the Parliament
of Canada, as distinguished from the provincial
legislatures, to make laws in relation to *^ Naturaliza-
tion and Aliens '' was, it is conceived, subject to the
limitation set out in the Imperial Act of 1847, and
is now subject to the limitation expressed in the Act
of 1870. At all events, Canadian legislation has
followed the wording of sec. 16 :^

24. An alien to whom a certificate of naturalization is
granted shall, within Canada, be entitled to all political and

'•= See Abd-el-Messir v. Chukri Farra, 57 L. J. P. C. 88.
"See post, p. 192.

'See the Canadian Naturalization Act, R. S. C. (1906), c. 77,
sec. 24.

184 CANADIAN constitution: imperial limitations.

other rights, powers, and privileges, and be subject to all
obligations, to which a natural born British suibject is en-
titled or subject within Canada, with this qualification ^* that
he shall not, when within the limits of the foreign state of
which he was a subject previously to obtaining his certificate
of naturalization, be deemed to be a British subject, unless
he has ceased to be a subject of that state in pursuance of
the laws thereof, or in pursuance of a treaty or convention
to that effect.

It is, however, a curious and somewhat disoon-
eerting fact that in the two judgments ® of the Privy
Council in which the line was drawn between federal
and provincial spheres of authority in regard to this
subject no reference at all is made to any limitation
of the federal power by reason of Canada's colonial
position generally or under the Imperial Naturaliza-
tion Act of 1870. Lord Halsbury, it is true, in the
later case, refers to ^* the nationality conferred by
naturalization,'' but he speaks very generally and
without express reference to the effect of Canadian
legislation ; and it is submitted that true nationality
— imperial citizenship — is not conferred by natural-
ization under the Canadian Act. These two cases,
however, will call for more extended reference later
when the respective spheres of authority of the
federal and provincial legislatures are discussed.®

The British Subject Abroad.

It is, of course, beyond the scope of this work to
discuss the nature and extent of the protection and
assistance which the British nation, through its

" Sec. 16 of the Imperial Act containis no warrant for this
qualification, but it is a valid provision, it is conceived, so far as
Canadian Courts are concerned, though it may be hard to imagine
how the question could arise in Canada. See ante, p. 114, as to
ex-territorial otperation.

* Union CoUiery Co. v. Bryden (1899), A. C. 580; 68 L. J. P. C.
118; Tomey Homma's Case (1903), A. C. 151; 72 L. J. P. C. 23.

» See Part II., post; Quong Wing v. R. (1914), 49 S. C. R. 440.

NATUKALIZATION. 185

agents, affords to its members beyond its frontiers
or the quasi- jurisdiction which with the consent of
a foreign power it exercises within the territorial
limits of such foreign power.®*

The functions of British agents abroad — ambas-
sadors, consuls, naval and military officers, etc."^ —
may be grouped as protective, ministerial, and jur-
isdictional.

Protective: Apart from wrongs inflicted upon
British subjects abroad which call for diplomatic
action, and may end in coercive measures, a general
pl-otective supervision is exercised by British con-
sular agents in respect of both the persons and pro-
perty of British subjects. The issue and counter-
signing of passports may be mentioned; in which
connection Mr. Hall tells us^ that to a colonially
naturalized British subject a consul can issue only a
provisional passport *' good for a limited time so^
that the holder may return to his colony or to the
United Kingdom. '^ The transmission of evidence
as to the nationality of a British subject and the
granting of certificates of British nationality may be
also mentioned among protective functions exercise-
able by British consular agents abroad.

Ministerial: These are the most important in a
practical sense. They embrace the celebration of
marriage under the Foreign Marriage Act, 1892,^ the
performance of notarial acts, the registration of
births and deaths, and the administration of the
estates of British subjects dying abroad; besides
many others.

'* Incidental references have already been made to this sub-
ject. For full and masterly treatment of it, see Hall, Foreign
Jurisdiction of the British Crown.
" See Hall, 15, for a classification.

* P. 74.

« 55 & 56 Viot., c. 23 (Imp.).

186 CANADIAN constitution: imperial limitations.

Jurisdictional : In States of the European type,
the supremacy of the territorial law is paramount
and if effect is given in British Courts to acts done
abroad by British agents in the exercise of a coer-
cive jurisdiction (with the express or tacit consent
of the territorial sovereign), it must be by virtue of
statute law; and it would appear^ that such juris-
diction is limited to matters connected with British
ships and their crews, and is all to be found within
the four corners of the Merchant Shipping Act, 1894,
and its amendments. The position of the colonies
generally, and of Canada in particular, in reference
to this legislation must be discussed later/

With regard to Oriental States and barbarous
lands the exercise of jurisdiction is regulated by the
Foreign Jurisdiction Act, 1890.^

The question of importance in all these matters
is to determine who is the British subject abroad,
who alone is entitled to claim the benefit of these
various Acts or who alone, in some oases, is subject
to a coercive jurisdiction civil or criminal.® Al-
though, as already indicated, the British govern-
ment may and does undertake to protect the colon-
ially naturalized British subject without the realm,
this does not touch the legal questions which may
arise as to the validity of transactions abroad in
which such colonially naturalized persons may have
participated. The better opinion would seem to be
that as to all these matters they are not British

• See Hall, 77, et seq.

* See chap. XII., post.

" 53 & 54 Vict. c. 37 (Imp.). See ante, p. 65: Japanese Gov't v.
P. <g 0., 64 L. J. P. C. 107.

•There is a preliminary question in reference to some of the
British Acts, namely: Do they extend to the colonies at all?
For example, the Foreign Marriage Act, 1892, says nothing as
to the effect to be given in colonial Courts to marriages solem-
nized under it. It simply enacts that such marriages are to be
as valid as if duly solemnized in England; and this, primQ, fade,
would mean that English Courts only should so view them. But
see post, p. 263.

AWENS. 187

subjects when without the limits of the colony under
the law of which they hold certificates of naturaliza-
tion.

The Unnaturalized Alien.

Very seldom now in any Canadian Court do the
rights of a litigant depend upon his nationality.
Except to an alien enemy ^* the King's Courts are
open to all. A non-resident plaintiff may be ordered
to give security for costs, but a non-resident British
subject is in this respect in no better or worse posi-
tion than a non-resident alien. By the common law
of England an alien friend was under no disability
as to personal property of any description other
than chattels real. He was accorded full protection
by the law for his person and reputation. And it
was immaterial that he had never been within the
realm.'' The disabilities he was under as to the
ownership of real property had their origin in the
feudal system and these were from time to time
relaxed ^ until finally by sec. 2 of the Naturalization
Act, 1870,® it was enacted that '* Real and personal

«» The recent outbreak of war has brought into unexpected
prominence the alien enemy. The non-resident alien enemy can-
not begin or prosecute any action in Canada; but the resident
alien who is a subject of a country at war with us, but who
remains here in the peaceful pursuit of his avocation, is entitled
to the assistance of the Courts to protect him in his rights: see
judgment of Grregory, J., in Topay v. Crow's Nest Goal Co. (1914),
29 West. Law Rep. 555, where the Orders-in-Council which o<perate
as the Cro'wn's license are noted.

^ Pisani v. Lawson (1839), 9 L. J. C. P. 12; Jefferys v. Boosey
(1855), 5 H. L. Cas. 315; 24 L. J. Ex. 81; per Maule, J., Rout-
ledge V. Low (1868), L. R. 3 E. & I. App. 113; 37 L. J. Ch. 454;
per Lord Westbury. See extracts quoted ante, pp. 73-4.

•See 7 & 8 Vict. c. 66 (Br.).

"33 Vict. c. 14 (Br. and Imp.). In regard to relief from civil
disabilities, as well as in some other respects, the Act is local to
the United Kingdom; while some of its provisions (for example,
those as to Expatriation) are truly Imperial. See ante, p. 176.

188 CANADIAN CONSTITUTION I IMPERIAL LIMITATIONS.

property of every description may be taken, ac-
quired, held and disposed of by an alien in the same
manner in all respects as by a natural-born British
subject."

This, however, was not to qualify an alien for
any office or for any municipal, parliamentary, or
other franchise ;^^ or to own a British ship ;V and it
has been held not to give to an alien the benefit of
any statutory right or exemption bestowed upon
British subjects eo nomine.'^ Subject to these excep-
tions an alien in the United Kingdom lies under no
disabilities. In all the Canadian provinces his posi-
tion is the same;^ in fact in some of the provinces
his freedom from restrictions of any sort in regard
to property dates back to an earlier time than in
the United Kingdom.

But even when his residence is of a permanent
character he is not a citizen in the true sense. He
is not a member of the politically organized society
which governs the land. And although in all Bri-
tish Courts he is as fully protected in all his rights
as to person, property, and reputation as the citizen
proper, the British subject, yet the British Govern-
ment makes no claim as of right as against a for-
eign power to control his conduct or question his
treatment when abroad.* In this respect, as has
already been pointed out,^ the British subject,
natural-born or naturalized, is in a different position

" Sec. 2, S.-S. 1. Appendix.

^ Sec. 14. And see the Merchants' Shipping Act, 1894.

*Bloxam v. Favre (1884), 52 L. J. P. 42; 53 L. J. P. 26 (C.A.)

» Though, as already noted (see ante, p. 167), there are in
some colonies restrictions in regard to acquiring Crown land.

*The British Parliament in its omnipotence may enact laws
for his punishment, upon his return, for acts done abroad, and
these acts again may in certain cases have legal efficacy in Eng-
land only if done, as English law prescribes. As to the position
of a colonial legislature in this regard, see ante, p. 91 et seq.

' See ante, p. 168.

AWENS. 189

when abroad. Whether the difference in any given
case is one of law or a matter for diplomatic action
is one important consideration. Another and still
more important question is as to the position of a
person holding a certificate of naturalization under
the British or Canadian Act or under the similar
legislation of any other colony when in other parts
of the Empire ; and this, it is conceived, is a question
of law and not of diplomacy; while the position of
such a person without the Empire is a question of
both law and diplomacy.®

•In some respects the next chapter is but a continuation
of this.

CHAPTER X.

Exclusion: Expulsion: Exteadition:

Fugitive Offendeks Act.

Full treatment of these topics is not here at-
tempted. The enquiry is as to possible limitations
upon colonial powers along these lines.

The prerogative powers of the Crown at com-
mon law in this connection, that is to say, the right
of the executive without parliamentary authority to
take action to prevent a person's entry into the
realm or to expel or deport therefrom one already
there, have been often the subject of discussion; and
distinctions have been drawn as between national
subjects and aliens, as between simple expulsion and
extradition at the request of a foreign power, and as
between removal from British territory and re-
moval from one part of such territory to another.
There is no authority, for example, to support a
claim on behalf of the Crown to a prerogative right
to expel a national subject from British soil;^ but
dicta are to be found in support of the view that the
national subject — a fortiori the alien — may be
handed over by the executive to a foreign power to
take his trial for offences alleged to have been
committed within the territory of such foreign
power,^ and the Habeas Corpus Act of Charles II. 's

^"No power upon earth, except the authority of Parliament,
can send a subject out of the Kingdom against his will": 1
Steph. Comm. (15th ed.), 92, on authority of Co. Litt. 133a.

^East Ind. Go. v. Camphell (1749), 1 Vesey, Sen. 246; Mure v.
Kaye (1811), 4 Taunt. 34; opinion of Sergeant Hill (1792),
quoted in Clarke on Extradition, 25. See also Forsyth, Cases
and Opinions, 370. In 1842, in a debate in the House of Lords
(Hansard, Vol. 60, 317-327), all the Law Lords concurred in the
view expressed by Lord Denman that, apart from legislation,

exclusion: expulsion. 191

reign is said to recognize the right of the executive
to send persons accused of crime from one part of
the realm to another.^ Again, the right of the su-
preme authority of a state to exclude or expel aliens
from the state is laid down by the Privy Council as a
fundamental principle ;* and that supreme authority
it may be argued, would at common law in the ab-
sence of parliamentary intervention rest with the
Crown in Council.^ But in times of unrest when it
was deemed in the public interest that the power of
the state should be exerted along this line, parlia-
mentary sanction has always been sought.® And

there was no right to deliver up, indeed no means for securing,
persons accused of crime committed abroad. Lord Denman said
that all Westminister Hall, including the Judicial Bench, were
unanimous in holding this view. In 1844, the Court of Queen's
Bench (Denman, C.J., Williams, J., Coleridge, J., and Wightman,
J.), so laid down the law: Re Jacques Besset, 6 Q. B. 481; 14 L.
J. M. C. 17, and no doubt has ever been expressed since. See
ante, p. 141.

*R. V. Lundy, 2 Vent. 314; R. v. Kimberley, 2 Stra. 848. The
Fugitive Offenders Act now covers the ground: see post, p. 198.

*Atty.-Gen. (Canada) v. Cain & Gilhula (1906), A. C. 542;
75 L. J. P. C. 81. These two men had entered Canada in contra-
vention of the Alien Labour Act (see ante, p. 106); and in an
Australian case, Rohtelmes v. Brenan (1906), 4 Comm. L. R. 395,
where the alleged alien had entered Australia lawfully, it was
urged that Cain & Gilhula's Case (supra), did not apply to sup-
port colonial legislation for his deportation in such a case. The
federal legislation, however, was upheld by the High Court of
Australia as within colonial competence. G-riffith, C.J., speaks of
it as " an essential prerogative of a sovereign state to determine
who shall be allowed to come within its dominions, share in its
privileges, take part in its government, or even share in the pro-
ducts of its soil"; and this sovereign power he held to have
passed to the Commonwealth Parliament under the Constitution
Act.

* " It seems that the Crown enjoyed at common law the right
of excluding or expelling from the country any alien " ; 2 Steph.
Comm. (15th ed.), 509, on the authority of Chitty, 49. Forsyth
expresses a decided opinion to the contrary: p. 181.

• See Steph. Comm. uM supra; Forsyth, 181. The recently en-
acted War Measures Act, 1914 — 5 Geo. V., cap. 2 (Dom.) — is a
striking instance.

192 CANADIAN constitution: impekial limitations.

now there is a British statute on the subject of alien
immigration.'^

So far, however, as Canada is concerned, all
these topics are covered by legislation. Imperial or
colonial; and it may be affirmed in the broadest way
that the liberty of no one within Canada may law-
fully be interfered with by executive officials except
under statutory authority, the limits of which must
be strictly observed. All persons actually within
Canada are entitled to the benefit of the Writ of
Habeas Corpus to test in Court the legality of any
constraint of their freedom. The alien, it is true,
has no right enforceable by action to enter British
territory;^ but, once within that territory, he is en-
titled to ask for the writ if detained for deportation.

The only real question for enquiry, therefore,
is : How far, if at all, is Canada 's freedom of action
to legislate as she will upon these subjects curtailed
by Imperial Acts?

Exclusion or Expulsion,

There is no restrictive Imperial legislation to cut
down the powers bestowed affirmatively by the Bri
tish North America Act. As between Canada and
its component provinces, the federal Parliament has
exclusive authority over aliens and a paramount
authority over immigration f and the power to make
laws in relation to these subjects is limited by no
condition which compels discrimination as between
one class of aliens and another or others or — in the
matter of control of immigration — as between an
alien and a British subject. Canadian legislation

'The Alien Act, 1905 (5 Edw. VII., c. 13). See also the Im-
perial War Measures Acts of recent date.

^Musgrove v. Chun Teeong Toy (1891), A. C. 272; 60 L. J.
P. C. 28.

' B. N. A. Act, sec. 91, No. 25, and sec. 95.

exclusion: expulsion. 193

may very naturally and properly draw such distinc-
tions ; but as a matter of legislative freedom Canada
may do as she will in these matters. For example,
the Japanese Treaty Act, 1907/** making positive
law as to Canada the provisions of the treaty, was
the voluntary act of the Parliament of Canada, the
general Immigration Act being thereby to that ex-
tent modified; but no one suggests that the Act of
1907 could not be repealed either directly or by
legislation inconsistent with it/

The judgment of the Privy Council in Cain S
GilhiiWs Case ^ removes any difficulty arising from
the necessity in deportation cases of exercising a
certain amount of exterritorial constraint of the
person. In this connection a word or two may be
added. Colonial laws providing for banishment and
for punishment in case of return to the colony with-
out leave were treated by the law officers of the
Crown in 1838 as unobjectionable ; though provision
for detention in another colony was considered
ultra vires.^ Colonial legislation providing for
sentences of transportation — a mode of punishment
no longer recognized — or for pardon conditional
upon submitting to transportation, were also treated
as within colonial competence; and the difficulty as
to exterritorial constraint during the voyage to the
penal colony was met by a British Act which legal-
ized such restraint in England en routed When it

^«6 & 7 Edw. VII. c. 50 (Dom.). See Re Nakane (1908), 13
B. C. 370; ante, p. 143.

^See a7ite, p. 142, et seq.

== (1906), A. C. 542; 75 L. J. P. C. 81; ante, p. 106.

* Forsyth, 465. The opinion was that of Sir John CampbeU
(afterwards Lord Chancellor), and Sir R. M. Rolfe (afterwards
Lord Cranworth, Lord Chancellor). Some at least of those
banished from Canada were British subjects.

*5 Geo. IV. c. 84, s. 17. See Canadian Prisoners' Case (1839),
5 M. & W. 32, variously reported as Leonard Watson's Case, 9

CAN. CON. — 13

194 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

is once definitely settled that under colonial legis-
lation a person may be placed beyond the frontier
and may be prevented from returning, all practical
difficulty seems to disappear. But, as already sub-
mitted, even further exterritorial restraint would in
Canadian Courts be deemed legal and could give
rise to no action in such Courts, however the Courts
and governments of other countries might treat such
legislation.

Extradition.

It follows from what has already been said that
extradition laws in the British Empire are necessar-
ily statutory. They do not require the support of a
treaty, but as a matter of fact they have been en-
acted in nearly all cases with a view to the carrying
out of Extradition Treaties; and they are all of
comparatively recent date. Upper Canada has one
of the earliest, if not the earliest, enactments on the
subject. In 1833, Lord Aylmer, the Governor, re-
fused to hand over to the United States authorities
a person accused of having committed crime across
the line upon the ground that it was ^* not com-
petent to the executive in the absence of any regula-
tion by treaty or legislative enactment on the sub-
ject to dispense with the provisions of the Habeas
Corpus Act.'' ^ In the same year, the Upper Cana-
dian assembly passed an Extradition Act ^ which
^while it followed in some respects the phraseology
of Jay's Treaty (1794, between Great Britain and

A. & E. 731; R. v. Batchelor, 1 Perry & Dav. 516; R. v. Alwes,
8 L. J. Ex. 229; R. v. Wixon, 8 L. J. Q. B. 129. • Some of these men
were British subjects and some citizens of the United States;
they had all been involved in the Rebellion of 1837.

^ Quoted in Clarke on Extradition, 93. In 1827, Reid, C.J., of
Lower Canada, refused to discharge on hadeas corpus proceed-
ings a person whom the then governor had ordered to be given up
to the U. S. officers: Fisher^s Case, 1 Stuart, L. C. Rep. 245.

«3 Wm. IV. c. 6 (U.C.).

EXTRADITION. 195

the United States) was general in its application to
all foreign countries. As to the United States it was
superseded by the Imperial Act ^ passed to carry
out the Ashburton Treaty, 1842; but otherwise re-
mained in force until replaced by other Canadian
legislation;^ and, as will appear, the present Cana-
dian Extradition Act makes provision for cases not
covered by treaty.®

The Extradition Act, 1870,^^ passed by the Bri-
tish Parliament as the first general legislation on the
subject, is still in force and is a truly Imperial Act,
extending to all parts of the Empire so far as Im-
perial treaties purport to bind all parts ;^'*^ and in
the absence of approved colonial legislation as con-
templated by the Act, it provides for its own en-
forcement throughout all those parts of the Empire
to which treaties may individually extend. It makes
no provision for rendition of alleged criminals apart
from treaty, in which respect the Canadian Act, as.
will appear, goes further; but both in England and
in Canada no rendition can take place nor can a per-
son be confined except under the Act.^

The scheme of the Act may be shortly stated.
Where an arrangement has been made with any for-
eign state — that, of course, is an exclusively Im-
perial matter — for the surrender of fugitive crim-
inals, an Order in Council may be passed directing
that the Act is to apply to such foreign state,^ and

^6 & 7 Vict. c. 76 (Imp.); post, pp. 196-7.

'R. V. Tubhee (1856), 1 U. C. Praot. Rep. 98. And see 23
Vict. c. 41 (Can.).

«R. S. C. (1906), c. 155; post, p. 197.

"33 & 34 Vict. c. 52 (Imp.). The earlier Acts which were
special, are repealed by it. See Appendix. By an amendment in
1906 (6 Edw. VII., c. 15), bribery was added to the list of extra-
dition crimes.

"'See Ex p. Worms (1876), 22 L. C. Jur. 109.

^Re Jacques Besset (1844), 6 Q. B. 481; 14 L. J. M. C. 17. See
ante, pp. 141, 191.

'Section 2.

196 CANADIAN constitution: imperial limitations.

upon the publication of such Order in Council in the
London Gazette the Act does so apply so long as the
arrangement continues.' Where the Act applies in
the case of any foreign state, every fugitive criminal
of that state who is in or suspected of being in any
part of the Empire or in that part covered by the
treaty (as the case may be) is liable to be appre-
hended and surrendered in manner provided by the
Act.* Then follow provisions for the carrying out
of the Act where the fugitive is in the United King-
dom. With regard to other British territory, the
Act is to apply with certain necessary modifica-
tions;^ but these need not be detailed in view of
Canada's position as worked out under the next sec-
tion, which is as follows:

" 18. If by a law or ordinance made before or after the
passing of thig Act by the legislature ^ of any British pos-
session, provision is made for carrying into effect within. such
possession the surrender of fugitive criminals who are in or
suspected of being in such British possession, Her Majesty
may, by the Order in Cbuncil applying this Act in the case
of any foreign state, or by a subsequent order, either :

Suspend the operation within any such British possessioji
of this Act, or of any part thereof, so far as it relates to such
foreign state and so long as such law or ordinance continues
in force there, and no longer;

Or direct that such law or ordinance, or any part thereof,
shall have effect in such British possession, with or without
modifications and alterations, as if it were part of this Act."^

' Section 5.

* Section 6 : and see sec. 26 for definition of " fugitive crim-
inal " and " fugitive criminal of a state,"

"Section 17.

•> " The term * legislature ' . . . where there are local legis-
latures as well as a central legislature, means the central legis-
lature only": sec. 26. This, of course, gives the exclusive right
to the Parliament of Canada,

'There were somewhat similar provisions in the earlier Acts
passed to give effect to treaties with Prance (6 & 7 Vict. c. 75),

EXTRADITION. 197

In Canada's case the first alternative has heen
adopted and Imperial Orders in Council have passed
from time to time suspending the operation within
Canada of the Imperial Extradition Act in favour
of Canadian legislation. For example, upon the re-
vision of the Canadian statutes in 1886, an Imperial
Order in Council of 17th November, 1888, suspended
the operation of the Imperial Act as to Canada so
long as the Canadian statute — K. S. C. (1886) c. —
should continue in force.^

Two observations only seem necessary. The
first is that the power of the Canadian Parliament to
repeal or even to amend the Canadian Extradition
Act, though it clearly exists, can be exercised only
upon pain of bringing into operation the Imperial
Act. The second is, that sec. 18 of the Imperial Act
impliedly recognizes an unlimited right in a colonial
legislature, prior to the Act of 1870 itself, to legis-
late generally as to the extradition of fugitive crimi-
nals apart from treaty.^*

Acting upon such view of its powers, the Parlia-
ment of Canada has provided in Part II. of the
Canadian Extradition Act for ^^ Extradition irres-
pective of Treaty.'/ Where treaties exist, the Act
— like the British Act — is to be read subject to
them f where none exist the practice in treaty cases
is to be followed.^^

The provisions of this part of the Canadian Act,
however, are not to come into force with respect to
any state except upon proclamation of the Governor-
General,^^^ and the list of crimes to be covered by it

with the United States (i&., c. 76), and with Denmark (25 & 26
Vict. c. 70) ; and those Acts were, in due course, suspended as to
Canada in order to give operation to Canadian legislation.

* Qumre as to the revision of 1906.

^^ See ante, p. 194, as to earlier Canadian legislation.

''R. S. C. (1906), c. 155, sees. 3 and 4. See ante, p. 141.

"Section 36, s.-s. 2.

"» Section 34.

198 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

is specifically set forth in a schedule. The pith of the
enactment is to be found in sec. 36 :

"36. In case no extradition arrangement exists between
His Majesty and a foreign state or in case such an extradi-
tion arrangement, extending to Canada, exists between His
Majesty and a foreign state, but does not include the crimes
mentioned in the third schedule to this Act, it shall, never-
theless, be lawful for the Minister of Justice to issue his
warrant for the surrender to such foreign state of any fugi-
tive offender from such foreign state charged with or con-
victed of any of the crimes mentioned in said schedule." ^'^^

And care is to be taken to guard against the trial
in the foreign state of the person extradited for any
offence other than that on account of which his ex-
tradition has been claimed.^^''

There is no suggestion in either the Imperial or
the Canadian Act of reluctance to extradite British
subjects, natural-born or naturalized ; but, of course,
some treaties have been made which do discriminate
in favour of the subjects of the contracting
powers/^^

Fugitive Offenders Acts (Imperial and Colonial).

These may be described as providing for dom-
estic extradition within the Empire. What may be
termed the parent Act is the Imperial Fugitive
Offenders Act, 1881,^ and the most striking feature
presented by this Act and the various colonial
statutes which depend upon it is that they together
form one Imperial code recognized and given effect

^°^ Piggott on Extradition, p. 181, has some remarks on Can-
ada's position. The earlier pages of the work are valuable for
their statement of basic principles.

^"•^ Section 39.

"<* See, e.g., the Swiss Treaty mentioned ante, p. 141. See also
ante, p. 67n.

M4 & 45 Viot. c. 69 (Imp.). In Appendix.

FUGITIVE OFFENDERS ACTS. 199

to throughout the Empire and upon the high seas as
if contained in one Imperial Act. In the absence of
legislation upon the subject in all or any of the
colonies, the Imperial Act of 1881 may be enforced
propria vigore through all British territories; that
is to say it does not, strictly speaking, need aid from
colonial legislatures. Section 2 is the key note. It
provides that where a person accused of having
committed an offence in one part of (His) Majesty's
dominions has left that part, such person, if found
in another part of (His) Majesty's dominions, shall
be liable to be apprehended and returned in manner
provided by the Act to the part from which he is a
fugitive. The rest. of the Act is largely concerned
with the machinery for carrying out this declaration
and in laying down regulations for its operation
throughout the Empire. Under the Colonial Laws
Validity Act, 1865, colonial legislation upon the sub-
ject matter of an Imperial Act extending to the
colony is permissible, so long as and to the extent
that the colonial Act is not repugnant to the Im-
perial Act." But such a colonial Act could not be
carried into execution in any other colony or in the
United Kingdom, although it would, upon due proof,
be recognized elsewhere as the law of the colony
which enacted it. Colonial legislation, however, on
the subject of fugitive offenders when approved of
by the British Government becomes in effect Im-
perial legislation extending to all parts of the Em-
pire ; for the Imperial Fugitive Offenders Act, 1881,
provides :

" 32. If the legislature of a British possession pass any
Act or ordinance —

( 1 ) For defining the offences committed in that possession
to which this Act or any part thereof is to apply; or

'See ante p. 59.

200 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

(2) For determining the Court, Judge, magistrate, of-
ficer, or person by whom and the manner in which any juris-
diction or power under this Act is to be exercised; or

(3) For payment of the costs incurred in returning a
fugitive or a prisoner, or in sending him back if not prose-
cuted or if acquitted, or otherwise in the execution of this
Act; or

(4) In any manner for the carrying of this Act or any
part thereof into effect in that possession,

It shall be lawful for Her Majesty by Order in Council
to direct, if it seems to Her Majesty in Council necessary or
proper for carrying into effect the objects of this Act, that
such Act or ordinance, or any part thereof, shall with or
without modification or alteration be recognized and given
effect to throughout Her Majesty's dominions and on the
high seas as if it were part of this Act."

The Canadian Fugitive Offenders Act^ — duly
sanctioned as above indicated — applies, as does also
the Imperial Act, only to crimes which by the law of
that part of the Empire where they were committed
are punishable by imprisonment at hard labour for
twelve months or more ; but it is not necessary that
they should be crimes by the law of that part of
British territory — of Canada, for instance, under
the Canadian Act — to which the fugitive may have
fled; or that, if there treated as crimes, the punish-
ment provided should be as severe as above specified.*
As already intimated, the clauses in the Canadian
Act providing for the transportation of the fugitive
from Canada to the place from which he fled are, in
effect, Imperial legislation and any objection to them
as providing for exterritorial restraint of the fugi-
tive's person is thus met, even if otherwise open.'

»R. S. C. (1906), c. 154.

*R. S. C. (1906), c. 154, ss. 3 and 4. See sec. 9 of the Im-
perial Act.

^ See ante, p. 194.

CHAPTER XL

The Akmy and Navy.

The Army:

The declaration of the Bill of Eights ^ that ' ^ the
maintenance of a standing army in time of peace
without consent of Parliament is contrary to law ''
applies throughout the Empire. It rests upon two
fundamental principles ; first, that the money neces-
sary for an army's maintenance must be granted by
Parliament; and, second, that without statutory
sanction regulations for the government and disci-
pline of an army would be largely futile as their en-
forcement involves a radical departure from the
ordinary rules of law, and the setting up of tribunals
which the common law does not recognize. Since the
revolution of 1688, inherited distrust of a standing
army has been reconciled with the acknowledged
need of a permanent disciplined force by the well-
known device of annual legislation. First intro-
duced in 1689, the idea has been carried out, with
scarcely a break, ever since by the passage in each
year and for one year only of an Act, styled until
1879 the annual ^^ Mutiny Act '' and since that date
known as the Army (Annual) Act of each year.

It was a recognized prerogative of the Crown in
earlier times to promulgate ** Articles of "War ''
when war had broken out or was imminent ^ and
thus, in effect, to legislate for the maintenance and
discipline of the armed forces of the Crown in time
of war : and the martial tribunals of those days have
become the Courts Martial of to-day. Later, statu-
tory authority was conferred upon the Crown to

^ 1 Wm. and Mary, st. 2, c. 2.

'Hale, Hist, of the Common Law, 40.

202 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

make Articles of War for the government and dis-
cipline of the army both in peace and war. In 1879,
the provisions of the Mutiny Act and of the then
existing Articles of War were consolidated into a
code of military law, and two years later this code
was re-enacted with amendments as the Army Act,
1881^— the existing code for the government and
discipline of the British Army. It is kept in force
each year by an Army (Annual) Act, which specifies
the number of men to constitute the army for the
year, exclusive of the forces employed in India.'
Thus each year the code of military law comes under
the consideration of Parliament which, as Anson
says, ^^ no longer gives power to make rules and con-
stitute Courts, but enacts the rules, provides the
jurisdiction for enforcing them and the punishment
for their breach. " ^ In every aspect' the mainten-
ance- and control of the British Army has passed be-
yond the region of prerogative. Each annual Act
provides that the Army Act, 1881, while in force as
specified, shall apply to all persons ^' subject to
military law '' whether within or without His
Majesty's dominions. But while thus extending to
all British colonies, the Army Act, 1881, deals, .to
put it shortly, only with the British Army.^ In
other words those who are '^ subject' to military
law '' are specified with much particularity in sec-
tions 175 (officers) and 176 (soldiers), and the

M4 & 45 Vict. c. 58 (Imp.).

* " The right of the Crown to dispose freely of this force else-
where than in the United Kingdom must be regarded as an open
question, since the highest legal authorities differed irreconcil-
ably in 1878." Anson, pt. 11. , 362. The reference is to the debate
on the moving of troops from India to Malta in 1878, when Lords
Selborne and Cairns opposed Lord Herschell and Atty.-Gen.
Holker.

"^ Anson, Law and Custom of the Const., 2nd ed., pt. II., 368n.
The Army (Annual) Act, 1913, is printed in the Appendix. Note
its recitals.

•See Holmes v. Temple (1882), 8 Que. L. R. 351.

THE ARMY AND NAVY. 203

enumeration does not include the officers or men of
armed forces raised by colonial governments.
'^ Forces raised by order of Her Majesty beyond the
limits of the United Kingdom and India '' are men-
tioned, but, as Anson says, ^ ' these are substantially
part of the regular forces and are governed by the
Army Act.''^ Colonial forces, properly so called,
may in certain circumstances in time of war be
governed by the Army Act, 1881, as specified in sec-
tion 177 of the Act; but before dealing with that
section, some preliminary observations seem called
for.

No suggestion seems ever to have been made
that a colonial legislature, empowered to pass laws
for the peace, order, and good government of the
colony, might not lawfully provide for the mainten-
ance and discipline of an armed force to preserve
internal peace or to ward off an actual or threatened
invasion. Even in the earlier days when colonial
assemblies were enjoined from enacting laws repug-
nant to the laws of England,^ defensive measures
could hardly fall within that category, whatever
might be said of purely offensive warfare. The
same fundamental principles which necessitate
parliamentary sanction for a disciplined force in the
United Kingdom are operative in the self-governing
colonies. Legislative action is required in order to
the maintenance and due discipline of a colonial
force. But that such legislative action is, speaking
broadly, within colonial competence has never been
doubted ; and Imperial legislation is based upon that
assumption.^ The doubts and difficulties which
have arisen in reference to colonial forces, organized

^ Anson, pt. II., p. 360. Free use of this work has been made
in the preparation of this and other chapters.

® See ante, pp. 56-7.

"See Egerton, Short Hist, of Brit. Col. PoUcy, 365, quoting
Resolution of the British Commons -in 1862.

20J: CANADIAN constitution: imperial limitations.

under colonial law and properly, that is to say, law-
fully, subject to military law and discipline as laid
down in colonial enactment, bave been chiefly two-
fold: First J as to the position of colonial forces
when away from their home limits and, Second, as
to their control and discipline when co-operating
either at home or abroad with the regular forces of
the British army.

As to the first it was doubtful, to say the least,
if the colonial enactments were of binding force be-
yond the limits of the colony. They would doubtless
be enforced and in the colonial Courts such enforce-
ment might be held lawful ; but if the question could
be brought before tribunals abroad or in other parts
of British territory exterritorial enforcement of the
colony's military law might be impossible.'*' This
difficulty is met by sec. 177 of the Imperial Army
Act, 1881, which provides :

177. Where any force of volunteers, or of militia, or any
other force, is raised in India, or in a colony, any law of India
or the colony may extend to the officers, non-commissioned
officers, and men belonging to such force, whether within or
without the limits of India or the colony ; and where an)' such
force is serving with part of Her Majesty's regular forces,
then so far as the law of India or the colony has not provided
for the government and discipline of such force, this Act
and any other Act for the time being amending the same
shall, subject to such exceptions and modifications as may be
specified in the general orders of the general officer command-
ing Her Majesty's forces with which such force is serving,
apply to the officers, non-cornmissioned officers, and men of
such force, in like manner as they apply to the officers, non-
commissioned officers, and men respectively mentioned in the
two preceding sections of this Act.

It would appear therefore that the position of
Canadian forces is the same whether serving at

"See ante, chap. VII., p. 65.

THE ARMY AND NAVY. 205

home or abroad. If acting alone they are subject to
the law as laid down in Canadian enactments, this
section 177 clearly giving such enactments exterri-
torial efficacy; if serving with regular troops the
Army Act, 1881, applies to them so far as Canadian
law has not made provision,^ subject, however, to
the power lodged with the general officer command-
ing to prescribe exceptions to and modifications of
this general rule in favour of the colonial forces. If
the Canadian disciplinary code purported to be ex-
haustive, there might be a question as to the opera-
tion of the Army Act in matters not touched by the
Canadian code ; but it would probably be held appli-
cable even in such cases, subject to the judicious ex-
ercise of the power of modification vested in the
general officer commanding. Of course, if in the
case of any colony there were no code of discipline —
a most unlikely contingency — the Army Act would
apply in its entirety.

Little need be said as to the second point. Sec-
tion 177, above quoted, clearly contemplates that the
general officer commanding the regular forces would
also be in command of the co-operating colonial
forces as well. Section 15 of the British North
America Act provides :

" 15. The Command-in-Chief of the land and naval
militia and of all naval and military forces of and in Canada
is herdby declared to continue and be vested in the Queen."

And the Militia Act of Canada provides, perhaps
superfluously, that ^ ' in time of war when the militia
is called out for active service to serve conjointly
with His Majesty's regular forces. His Majesty may
place in command thereof a senior general officer of
His regular army.'' ^

^See R. S. C. (1906), c. 41, s. 74.
-R. S. C. (1906), c. 41, s. 72.

206 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

Under the Canadian Militia Act provision is
made for a permanent force not (in 1906) to exceed
5,000 men, but further details as to military organ-
ization both in the United Kingdom and in Canada
would be out of place in this book. As between
Canada and its provinces the exclusive power to
make laws relating to '' Militia, military and naval
service, and defence "is with the Parliament of
Canada; and there is no Imperial legislation to
restrict the power of the Canadian Parliament to
legislate fully for the maintenance, government, and
discipline within Canada of a Canadian armed force.
The existing Militia Act limits the right of the
Canadian Government to place the militia on active
service beyond Canada by the qualifying phrase
' ^ for the defence thereof, ' ' ^ a qualification practi-
cally honoured in the breach in the case of the late
South African War. As to the discipline of the
Canadian Militia that, of course, rests with the
Parliament of Canada, subject only to the provisions
of sec. 177 (above quoted) of the Imperial Army
Act, 1881. Those provisions, as already noticed, en-
large rather than restrict colonial powers of legis-
lation along this line. The existing Militia Act of
Canada provides for disciplinary regulations to b^
formulated by the Governor-General in Council and
sec. 74 provides that ** the Army Act for the time
being in force in the United Kingdom, the King's
regulations, and all laws applicable to His Majesty's
troops in Canada and not inconsistent with this Act
or the regulations made thereunder shall have force
and effect as if they had been enacted by the Parlia-
ment of Canada for the government of the Militia. ' '

*R. S. C. (1906), c. 41, s. 69. The War Appropriation Act,
1914, — 5 Geo. V., c. 1 (Dom.) — provides, amongst other things,
for " the conduct of naval and military operations in or beyond
Canada ;" hut the Militia Act was not touched.

THE ARMY AND NAVY. 207

The Navy.

The practical difficulty as to the exterritorial en-
forcement of colonial law, already referred to in
connection with land forces, appears in acute form in
reference to any naval force provided for by colonial
legislation whether for purposes of defence or to
form part of the naval strength of the Empire.
Whatever the reason — and that is not a proper topic
for discussion here — the fact remains that no pro-
vision for a naval force was made by Canadian legis-
lation until 1910;^ and that legislation has become
such a controversial topic in Canadian politics that
the briefest statement of its provisions so far only
as is necessary to indicate the relation it bears to
Imperial legislation must suffice.

The maintenance and organization of the British
Navy is covered by many statutes which call for no
discussion here. Its discipline is provided for by
The Naval Discipline Act, 1866,^ which applies
wherever the ships or men of the Navy may be
throughout the world ; and * ^ every person in or be-
longing to Her Majesty's Navy and borne on the
books of any one of Her Majesty's ships in commis-
sion '' is subject to the Act/ and many other persons
are also or may be affected by its clauses in all
parts of the Empire and beyond.^

*The "Government Vessels DiscipUne Act," R. S. C. (1906),
c. Ill, is the only Act in the Revised Statutes which in any way
touches the topic. It applies to " every vessel employed by the
Government of Canada." These would include vessels used in
Revenue Protection, Fisheries Protection, etc.

^29 & 30 Vict. c. 109 (Imp.). It has undergone little amend-
ment. Its recital is noteworthy: "Whereas it is expedient to
amend the law relating to the government of the Navy, whereon,
under the good Providence of God, the wealth, safety and
strength of the Kingdom chiefly depend."

* Section 84.

^ Section 87, et seq.

208 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

In the previous year had been passed The Col-
onial Naval Defence Act, 1865,^ which, with an
amendment in 1909,'^ is still law. While expressly
saving ^^ any power vested in or exercisable by the
legislature or government of any colony '^ it pro-
vides that in any colony, it shall be lawful for the
proper legislative authority, with the approval of
Her Majesty in Council, from time to time to make
provision at the expense of the colony, for a colonial
organized naval force. The discipline of the force
^' while ashore or afloat within the limits of the
colony '^ may be determined by the colonial legis-
lature, but elsewhere the discipline must be that of
the Eoyal Navy. A perusal of the Act discloses in-
deed that the powers conferred by it are at all
points subject to Imperial control.

The Canadian Act of 1910 already referred to —
the '^ Naval Service Act ''® — gives power to the
Governor-General in Council to organize and main-
tain a permanent naval force, of which the com-
mand-in-chief is to be vested in His Majesty,^^ and
which, while primarily designed for the defence and
protection of the Canadian coasts and Canadian
trade, may be engaged anywhere as the Governor-
General in Council may from time to time direct.
The Naval Discipline Act, 1866 (Imperial) with its
amendments, is to apply ^* except in so far as they
may be inconsistent with this Act or with any regu-
lations made under this Act.'' The attitude of the
Imperial authorities to this Canadian Act appears
in an Imperial Act of 1911.^

«28 Vict. c. 14 (Imp.). See Appendix.

«•» 9 Edw. VII., c. 19.

"9 & 10 Edw. VII. c. 43 (Dom.).

*°A superfluous provision in view of sec. 15 of the B. N. A.
Act. See ante, p. 205.

'1 & 2 G€o. V. c. 47 (Imp.). "The Naval Discipline (Domin-
ion Forces), Act, 1911." It may be added that this chapter was
written before the outbreak of war. Now, doubtless, there will

THE AKMY AND NAVY. 209

General Observations,

Apart from the special laws enacted for their
government and discipline, officers and men of the
Army and Navy are subject to the law of the land
as ordinary citizens;^ and the tribunals — Courts-
Martial and Naval Courts — created for the enforce-
ment of the special laws which affect them are sub-
ject to the superintending jurisdiction of the ordin-
ary Superior Courts both in the United Kingdom
and in the self-governing colonies. If these special
tribunals act without or exceed their jurisdiction,
their proceedings will be quashed or prohibited, per-
sons improperly detained under their process will
be released upon habeas corpus proceedings, and an
action will lie, as a rule, for damages suffered by
any illegal assumption of authority.^ And where an
act which is an offence against the Army Act or the
Naval Discipline Act is also an offence by the ordin-
ary law the ordinary Courts may exercise their
jurisdiction just as if the offender were not subject
to the special law or amenable before a special
tribunal. If convicted before such special tribunal
and duly punished under its sentence, such sen-
tence and punishment is no bar to a further
prosecution before the ordinary Courts; but, under
the Army Act, those Courts ** shall in awarding
punishment have regard to the military punishment
he may have already undergone."* The Naval

be further legislation, imperial and colonial; and it therefore
seems undesirable to enlarge further upon the topics covered by
this chapter. The Imperial Act of 1911 is printed in the Ap-
pendix.

'As to the right to resign at will: see Anson, pt. II., 363; Re
Harris (1909), 19 Man. L. R. 117; and on the general proposition
of the text: see R. v. Hill (1907), 15 Ont. L. R. 406.

'Anson, pt. II., 371, et seq.

* Section 162.

CAN. CON. — 14

210 CANADIAN constitution: impekial limitations.

Discipline Act, 1866, has no like qualification.^ On
the other hand, an acquittal or conviction before a
competent Civil Court is a bar to any prosecution
under the Army Act (sec. 162) and the same prin-
ciple would apply to the Naval Discipline Act.

The Foreign Enlistment Act, 1870, is an Im-
perial statute extending to all British possessions;
but its provisions have already been sufficiently dis-
cussed.®

•Section 101.

•See ante, p. 82; R. v. Jamieson (1896), L. R. 2 Q. B. 425:
65 L. J. M. C. 218. See also R. v. 8chram (1864), 14 U. C. C. P.
318.

CHAPTER XIL

Mekohant Shipping.

No excuse is offered for dealing with this subject
at some length. Canada, with its thousands of miles of
ocean front, its great inland lakes, and its very many
seaports, is vitally interested in knowing what law
governs the ships, British or foreign, which ply on
its waters or visit its ports, and the crews which man
them; and how far that law may be determined by
the Parliament of Canada. As between Canada and
its various provinces, the Parliament of Canada has
exclusive authority to make laws relating to ^ ^ Navi-
gation and Shipping ; ' ' ^ but as between Canada and
the Empire it will develop in the course of this
chapter that the power of the Canadian Parliament
is much circumscribed by Imperial legislation which
extends to this country. For example, it will appear
that while Canadians may own ships, and ships may
be registered in Canadian ports, there is no such
thing in law as a Canadian ship.^ National character
is one apparent aim of the Imperial legislation and
all ships registered within the Empire are British
ships, some indeed with home ports in the colonies,
but all recognized the world over as possessing na-
tional character and entitled to fly the British flag.
It will further appear that while to some extent
colonial legislatures are expressly empowered to
deviate generally from the Imperial pattern, they
may do so only as to ships registered in the colony.^
The law to be administered in Canada as to all other
ships, British and foreign, is to be looked for in the

^B. N. A. Act, 1867, s. 91, No. 10.
^ See post, pp. 215, 231.
'See post, pp. 213, 229.

212 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

first place, in the Imperial Act, which as to many of
its provisions is expressly extended to the colonies.^*
The existing Imperial statute is the Merchant
Shipping Act, 1894,* with its amendments; and it
will be convenient to consider this Act, in the first
place, without regard to the express power of modi-
fied repeal given by it to colonial legislatures in re-
lation to ships registered in the colonies. That
express power exercised to the full, there yet re-
mains a large part of the Act untouched, as already
intimated. In so far as that large part of the Act
which Canadian legislation cannot affect is extended
to Canada by express words or necessary intend-
ment, Canadian legislation ^ must be tested by the
Colonial Laws Validity Act, 1865 f it must be read
subject to the Imperial Act and to the extent of its
repugnancy thereto but not otherwise, it remains
void and inoperative. It is of importance, therefore,
to ascertain just how far the imperial Merchant
Shipping Act, 1894, does extend to Canada ; and this
necessitates a somewhat extended consideration of
its provisions.

Imperial ^^ Meechant Shipping Act, 1894.''

'' Part I: Registry:''
Sees. 1-91,

This part of the Act applies to the whole of His
Majesty's dominions and to all places where His
Majesty has jurisdiction.^ It prescribes, first, the
qualification for owning British ships. British sub-
jects by birth, naturalization (either under British

••See The Rajah of Cochin (1859), Swab. 473.

*57 & 58 Vict. c. 60 (Imp.). The Act of 190'6 (6 Edw. VII.,
c. 48), &hould be particularly noted.

» Chiefly to be found in the " Canada Shipping ^ct," R. S. C.
(1906), c. 113.

« 28 & 29 Vict. c. 63 (Imp.), s. 2. See ante, p. 57, et seq.

'Section 91.

MERCHANT SHIPPING. 213

or colonial legislation) or denization,^ may alone of
natural persons, and bodies corporate established
under and subject to the laws of some part of British
territory and having their principal place of business
within such territory ® may alone of artificial per-
sons own British ships. Every British ship in order
to be recognized as such must, with defined excep-
tions, be registered under the Act/^ The procedure
for registration and for the issue of a *^ certificate
of Eegistry '^ is then set forth, followed by provi-
sions as to transfers, transmissions of interest, mort-
gages,^*^^ and certificates relating thereto. There are
also provisions relating to a ship's name and to any
change in it, to alterations in structure and the con-
sequent changes in her certificate of registry, to
measurement, inspection, returns, etc. ; and particu-
lar provisions as to national character and the use
of the British flag'. The governor of a British
possession ^ occupies the place of the British Com-
missioners of Customs and it is his duty to name
ports for registration and appoint the registrars.^

The modified power of repeal given to the Parlia-
ment of Canada — to be dealt with later — is limited
to ' ' ships registered in that possession ' ' ^ and this

* See ante, p. 173.

•The nationality of the shareholders is immaterial: B. v.
Arnaud (1846), 16 L. J. Q. B. 50; 9 Q. B. 806.

"Section 2.

"•^ In British Columbia, sh^ips are specially exempted from the
operation of the Bills of Sale Act; and there heing no provision
in the Merchant Shipping Act penalizing neglect to register a
mortgage on a ship, an execution creditor cannot seize and sell
as against an unregistered mortgage: Imp. Timter, etc., Co. v.
Henderson (1909), 14 B. C. 216.

* Canada, for the purposes of the Act, is one British posses-
sion. See the Imperial Interpretation Act, 1889 (52 & 53 Vict,
c. 63, s. 18 (2), and also The Merchant Shipping (Colonial) Act,

• 1869 (32 Vict. c. 11). -

* Sections 4 and 89.

^ See section 735, quoted post, p. 229.

214 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

phrase can only refer to registration under the Im-
perial Act. It would seem therefore that all the
provisions of that Act up to the issue of the first
certificate of Eegistry at least, including the require-
ments as to qualification for ownership, not only
extend to Canada but also are not susceptible of re-
peal by Canadian legislation.* Any Canadian enact-
ment as to those matters must, as already pointed
out, be read subject to the Imperial Act and be not in-
consistent with it. This phase of the question is very
lucidly discussed in a judgment of the late Mr. Jus-
tice Burbidge of the Exchequer Court of Canada,
delivered in 1901.^ The Minnie M., built in the
United States, became the property of Canadian
owners who obtained from the British Consul at
Chicago a provisional certificate having operation
under sec. 22 of the Merchant Shipping Act, 1894,
as a temporary certificate of registry. She was
then taken to a Canadian port where application
was made for her registration as a British ship. The
customs' officer there claimed that under the Cana-
dian Customs Tariff, 1897, she was liable '' upon
application for Canadian register ' ' to duty as a for-
eign-built ship. Her owners contended that this was
an impediment thrown in the way of complete regis-
tration, not warranted by, but repugnant to, the pro-
visions of the Imperial Act. It was further argued
that upon the proper construction of the Customs
Tariff the ship was not liable, and on this point Mr.
Justice Burbidge gave judgment against the Crown,
and it was upon this that his judgment was reversed.

* It was not necessary to decide this in Algoma Cent. Ry. Go.
V. R. {infra), and there is no express pronouncement upon it;
but it must be confessed that the language of some of the Judges
tends to a different conclusion from that expressed in the text:
see 7 Exch. Ch. R., at p. 256; 32 S. C. R., at p. 291 ; and 72 L. J.
P. C, at p. 109.

''Algoma Central Ry. Co. v. R., 7 Exch. Ct. Rep. 239.

MERCHANT SHIPPING. 215

His opinion upon the constitutional points involved
was upheld both in the Supreme Court of Canada
and before the Privy Council.^ All agreed that the
imposition of a duty was not repugnant to the Im-
perial Act, its payment not being made a condition
precedent to registration; the phrase *^ on applica-
tion for Canadian register ' ' merely fixing the time
for payment of the tax. It had also been argued
that there had been no application for '^ Canadian
register, ' ' that the application had been for registry
as a British ship under the Imperial Act ; and as to
this all agreed that the only registration possible
was as a British ship and that the phrase * * applica-
tion for Canadian register '' necessarily meant
** application for British register in Canada.'* ^

" Fart II: Masters and Seamen,
{92-266)

The scope of this part is sufficiently indicated for
our purpose by section 261, which prescribes the ex-
tent to which it is to apply in the case of ships regis-
tered out of the United Kingdom. It applies, of
course, to all sea-going ships registered in the
United Kingdom ^ and many of its provisions have
reference to transactions in colonial and foreign
ports touching the members of the crew of such
ships.^ Section 261 is as follows:

261. This Part of this Act shall, unless the context or
subject-matter requires a different application, apply to all
sea-going British ships registered out of the United King-
dom, and to the owners, masters, and crews thereof as fol-
lows ; that is to say,

« 32 S. C. R. 277 ;72 L. J. P. C. 108. See ante, p. 53.

^72 L. J. P. C, at p. 109.

'Section 260.

""E.g., ss. 124, 125, 164, 165, et seq.; 169 et seq.; 186, etc.

216 CANADIAN constitution: imperial limitations.

(a) the provisions relating to the shipping and dis-
charge of seamen in the United Kingdom and to volunteering
into the Navy shall apply in every case ;

(b) the provisions relating to lists of the crew and to the
property of deceased seamen and apprentices shall apply
where the crew are discharged, or the final port of destina-
tion of the ship is, in the United Kingdom; and

(c) all the provisions shall apply where the ships are
employed in trading or going between any port in the United
Kingdom, and any port not situate in the British possession
or country in which the ship is registered; and

(d) the provisions relating to the rights of seameai in
respect of wages, to the shipping and discharge of seamen in
ports abroad, to leaving seamen abroad and to the relief of
seamen in distress in ports abroad, to the provisions, health,
and accommodation of seamen, to the power of seamen to
make complaints, to the protection of seamen from imposi-
tion, and to discipline,^*^ shall apply in every case except
where the ship is within the jurisdiction of the government
of the British possession in which the ship is registered.

Extended reference in detail to these various
matters is not in place here; but it may be pointed
out that under (c) the law which governs, for ex-
ample, the numerous lines of British ships, regis-
tered elsewhere than in Canada, which ply to Cana-
dian ports is the law enacted by this Part as to
matters covered by it; while clause (d) also covers
a large field, a closer examination of which is beyond
the scope of this work.

With section 261 should also be read sections 264
and 265, as follows :

264. If the legislature of a British possession, by any law,
apply or adapt to any British ships registered at, trading

"See R. V. Martin (1904), 36 N. B. 448, and R. v. O'Dea (1899),
3 Can. Crim. Cas. 402. And see also sec. 238 as to deserters from
foreign ships; one instance of a statutory power to interfere
with a person's freedom under circumstances where the common
law would deny the right: see Forsyth, 468.

MERCHANT SHIPPING. 217

with, or being at, any port in that possession, and to the
owners, masters, and crews of those ships, any provisions of
this part of this Act which do not otherwise so apply, such
law shall have effect throughout Her Majesty's dominions,
and in all places where Her Majesty has jurisdiction in the
same manner as if it were enacted in this Act.

265. Where in any matter relating to a ship or to a per-
son belonging to a ship appears to be a conflict of laws,
then, if there is in this Part of this Act any provision on the
subject which is hereby expressly made to extend to that ship,
the case shall be governed by that provision; but if there
is no such provision, the case shall be governed by the law
of the port at which the ship is registered.

Certificates of Competency.

This Part also prescribes conditions as to com-
petency of masters, mates, and engineers and for
examinations under the supervision of the British
Board of Trade to test such competency and for the
issue of certificates of competency; and section 102
provides :

102. Where the legislature of any British possession pro-
vides for the examination of, and grant of certificates of com-
petency to, persons intending to act as masters, mates, or
engineers on board ships; and the Board of Trade report
to Her Majesty that they are satisfied that the examinations
are so conducted as to be equally efficient with the examina-
tions for the same purpose in the United Kingdom under
this Act, and that the certificates are granted on such prin-
ciples as to shew the like qualifications and competency as
those granted under this Act, and are liable to be forfeited
for the like reasons and in the like manner. Her Majesty may
by Order in Council, —

(i) declare that the said certificates shall be of the same
force as if they had been granted under this Act: and

(ii) declare that all or any of the provisions of this Act,
which relate to certificates of competency granted under this
Act, shall apply to the certificates referred to in the Order :
and

218 CANADIAN constitution: imperial limitations.

(iii) impose such conditions and make such regulations
with respect to the certificates, and to the use, issue, delivery,
cancellation, and suspension thereof, as Her Majesty may
think fit, and impose fines not exceeding fifty pounds for
the breach of those conditions and regulations.

This section has been acted upon in Canada's
case and Canadian certificates are now recognized
as of eqnal efficacy to British certificates.

'' Part III: Passenger and Emigrant Ships.''
{267-368)

In section 735, which gives to colonial legisla-
tures a modified power to repeal the provisions of
the Imperial Act in relation to ships registered in
the colonies respectively, the provisions as to emi-
grant ships are expressly excepted ; ^ and section
364 enacts that those provisions shall apply to all
voyages from the British isles to any port ont of
Europe, while section 365 enacts that this Part III.
shall, so far as applicable and with certain modifica-
tions, apply to every ship carrying steerage passen-
gers on a colonial voyage as defined in the Act. A
^* colonial voyage '' is defined in section 270 as a
voyage from any port in a British possession (other
than British India and Hong Kong) to any port
whatever where the distance between such ports is
over 400 miles or the duration of the voyage is over
three days ; and by section 366 colonial governments
may determine what is to be deemed the length of
any colonial voyage and make provision as to ^ ' diet-
ary scales,'* medical stores, and medical treatment.
Subject to these exceptions, colonial legislatures may
not repeal even as to ships registered in the colonies
respectively the provisions of the Act as to emigrant

' See post, p. 229.

MERCHANT SHIPPING. 219

ships, though, as already indicated, they may make
implementing pirovisions.^

With regard to passenger steamers, there are
provisions as to survey and the grant of certificates
as to carrying capacity, etc.; and in reference to
these matters section 284 provides for the acceptance
of colonial certificates in certain cases. The clause
is in its phraseology very like section 102 (quoted
above) ^ dealing with certificates of competency for
masters, mates, and engineers.

In this part, as indeed all through the Act, are
provisions as to the enforcement of the Act before
colonial tribunals, and by colonial administrative
officials.*

'' Part IV: Fishing Boats/'
(369-417)

This Part does not apply to any British posses-
sion (sec. 372) ; but section 744 provides that ships
engaged in the whale, seal, walrus, or Newfoundland
cod-fisheries are not to be deemed fishing boats,
with the exception, as to the cod-fisheries, of ships
belonging to ports in Canada or Newfoundland.

'' Part V: Safety/'
(418-463)

This part contains provisions aimed at prevent-
ing collisions, at securing reports of accidents, as to
the carrying of proper life-saving appliances and
general equipment, signals of distress, draught of
water and load lines, the carriage of dangerous
goods, the loading of timber, carriage of grain, and
for preventing unseaworthy ships proceeding to

^ Ante, p. 212.
^Ante, p. 217.
*E.g., sees. 355, 356.

220 CANADIAN constitution: imperial limitations.

sea; and upon these various matters the Canadian
Parliament has largely legislated both under the
modified power of repeal given by section 735 and
by way of implementing provisions. Upon only one
or two matters is further reference here considered
desirable, in order merely to draw attention to the
possible differences in the law, Imperial or Cana-
dian, which may govern in individual cases.

Collision Regulations : —

Sections 418 and 424 provide as follows:

418. — (1) Her Majesty may, on the joint recommenda-
tion of the Admiralty and the Board of Trade, by Order in
Council, make regulation for the prevention of collisions at
sea, and may thereby regulate the lights to be carried and
exhibited, the fog signals to be carried and used, and the
steering and sailing rules to be. observed by ships, and those
regulations (in this Act referred to as the collision regula-
tions) shall have effect as if enacted in this Act.

(2) The collision regulations, together with the pro-
visions of this Part of this Act relating thereto, or otherwise
relating to collisions, shall be observed by all foreign ships
within British jurisdiction,^ and in any case arising in a
British Court concerning matters arising within British jur-
isdiction foreign ships shall, so far as respects the collision
regulations and the said provisions of this Act, be treated as
if they were British ships.

424. Whenever it is uja^e to appear to Her Majesty in
Council that the government of any foreign country is willr
ing that the collision regulations, or the provisions of this
Part of this Act relating thereto or otherwise relating to col-
lisions, or any of those regulations or provisions should
apply to the ships of that countiiy when beyond the limits of
British jurisdiction, Her Majesty may, by Order in Council,
direct that those regulations and provisions shall, subject to
any limitation of time conditions and qualifications contained
in the Order, apply to the ships of the said foreign country,

''A phrase of dubious import: see post, p. 244.

MERCHANT? SHIPPING. 221

whether within British jurisdiction or not, and that such
ships shall for the purpose of such regulations and pro-
visions be treated as if they were British ships.

Section 419 enacts that all owners and masters
of ships shall obey the collision regulations ; and the
language is sufficiently wide to cover all British
ships everywhere; and, apart from action under
section 424, the regulations are binding, so far as
British Courts are concerned, on foreign ships
within British jurisdiction.^

The two sections, 418 and 424, have been carried
out by concerted action on the part of the British
and Canadian Governments ^ as well as of the lead-
ing powers, with the result that the navigation of
the high seas and of Canadian waters other than the
Great Lakes and the St. Lawrence above Montreal,
is governed as to all British ships and most foreign
ships^ by what are called ^ * International Eules of the
Road, ' ' while Canadian regulations govern as to the
excepted waters, that is, as to the inland waters of
Canada. There is a difference, again, as to the statu-
tory provisions which govern.^ Upon the high seas
beyond the three-mile limit the Imperial Act applies ;
while within Canadian territorial waters — i.e. within
3 miles of the coast, and^on all inland waters — the
Canadian statute governs ; and there is some, though
not a great, difference in the statutory provisions.
For example, under the Imperial Act where a colli-
sion occurs and there is evidence of a breach of any

*Coulson & Forbes, Law of Waters (1902), p. 413. See ante,
p. 77, et seq.

^ The Canadian regulations are as prescribed by Order in
Council of 20tli April, 1905 (Dom.), and are to be found in Dom.
Stats. 4 & 5 Edw. VII., at p. Ix.

' See Goulson & Forbes, ubi supra, for the list. France and
Germany are the only great powers not appearing in it (1902).

•As to the care to be taken apart from express statutory
regulations: see Graham v. The Ship '' E. May field" (1913), 14
Exch. Ct. R. 331; per Drysdale, J.

322 CANADIAN constitution: imperial limitations.

of the collision regulations '^ the ship by which the
regulation has been infringed shall be deemed to be
in fault, unless it be shewn to the satisfaction of the
Court that the circumstances of the case made de-
parture from the regulation necessary;'"^ while
the Canadian statute does not go so far/ ^* The
effect of the statute/' said Mr. Justice BurbidgCj^"
speaking of the Imperial Act, ^^ is to impose on a
vessel that has infringed a regulation which is
prima facie applicable to the case the burden of
proving, not only that such infringement did not, but
that it could not by possibility have contributed to
the accident. That is the rule no doubt to be fol-
lowed in Canadian Courts in cases of collision occur-
ring on the high seas ; but it is not applicable where
the collision occurs in Canadian waters. Where
that happens the rule to be followed is that estab-
lished by the earlier cases. ' '^ This is given merely
as one instance of difference. There are, of course,
others ; but it is obviously beyond the scope of this
work to do more than indicate in some of the lead-
ing matters the relation which Canadian legislation
bears to the Imperial Act.

Load Lines ; —

The Canadian Parliament has legislated ^ as to
load-lines under the authority conferred by sec. 444,
which provides:

""Section 419 (4).

*R. S. C. (1906), c. 113, ss. 914-918.

^ Hamburg Packet Co. v. Derochers (1903), 8 Exch. Ct. R., at
p. 304, where the cases are collected. See also Harbour Commrs.
Montreal v. The ''Albert M. Marshall'' (1908), 12 Exch. Ct. R.
178.

^ He cites The Cuba, 26 S. C. R. 661, and The Ship Porter v.
Ueminger, 6 Exch. Ct. R. 210, 211. The " Maritime Conventions
Act, 1911" (Br.), has, apparently, restored the old rule in most
cases: see The Enterprise (1913), 82 L. J. P. 1.

*R. S. C. (1906), c. 113, s. 930-951. See particularly sec. 950.
As to sec. 951, see post, p. 229.

MERCHANT SHIPPING. 223

444. Where the legislature of any British possession by
any enactment provides for the fixing, marking, and certify-
ing of load-lines on ships registered in that possession, and it
appears to Her Majesty the Queen that that enactment is
based on the same principles as the provisions of this Part
of this Act relating to load-lines, and is equally effective for
ascertaining and determining the maximum load-lines to
which those ships can be safely loaded in salt water, and for
giving notice of the load-line to persons interested. Her
Majesty in Council may declare that any load-line fixed and
marked and any certificate given in pursuance of that enact-
ment shall, with respect to ships so registered, have the same
effect as if it had been fixed, marked, or given in. pursuance
of this Part of this Act.

'* Part VI: Special Shipping Inquiries and Courts.''

(464-491)

This Part contains no general clause as to its
territorial application; but under it jurisdiction is
conferred upon colonial tribunals, and the provi-
sions as to Naval Courts on the high seas and
abroad apply to British ships registered in Canada
when not within Canadian territorial waters.^

As to enquiries into shipping casualties, section
478 makes these provisions :

4i78. (1) The legislature of any British possession may
authorize any Court or tribunal to make enquiries as to ship-
wrecks, or other casualties affecting ships, or as to charges
of incompetency, or, misconduct on the part of masters,
mates, or engineers of ships, in the following cases, namely : —

(a) where a ship-wreck or casualty occurs to a British
ship on or near the coasts of the British possession or to a
British ship in the course of a voyage to a port within the
British possession;

,(b) where a ship-wreck or casualty occurs in any part
of the world to a British ship registered in the British posses-
sion ;

* Section 486.

224 CANADIAN CONSTITUTION I IMPERIAL LIMITATIONS.

(c) where some of the crew of a British ship which has
been wrecked or to which a casualty has occurred, and who
are competent witnesses to the facts, are found in the British
possession ;

(d) where the incompetency or misconduct has occurred
on board a British ship on or near the coasts of the British
possession, or on board a British ship in the course of a voy-
age to a port within the British possession;

(e) where the . incompetency or misconduct has occurred
on board a British ship registered in the British possession ;

(f) when the master, mate, or engineer of a British ship
who is charged with incompetency or misconduct on board that
British ship is found in the British possession.

(2) A Court or tribunal so authorized shall have the
same jurisdiction over the matter in question as if it had
occurred within their ordinary jurisdiction, but subject to all
provisions, restrictions, and conditions which would have
been applicable if it had so occurred.

(3) An inquiry shall not be held under this section into
any matter which has once been the subject of an investiga-
tion or inquiry and has been reported on by a competent
Court or tribunal in any part of Her Majesty's dominions, or
in respect of which the certificate of a master, mate, or engin-
eer has been cancelled or suspended by a Naval Court.

4. Where an investigation or inquiry has been commenced
in the United Kingdom with reference to any matter, an
inquiry with reference to the same matter shall not be held,
under this section, in a British possession.

5. The Court or tribunal holding an inquiry under this
section shall have the same powers of cancelling and suspend-
ing certificates, and shall exercise those powers in the same
manner as a Court holding a similar investigation or inquiry
in the United Kingdom.

6. The Board of Trade may order the re-hearing of any
inquiry under this section, in like manner as they may order
the rehearing of a similar investigation or inquiry in the
United Kingdom, but if an application for re-hearing either
is not made or is refused, an appeal shall lie from any order
or finding of the Court or tribunal holding the inquiry to the

MERCHANT SHIPPING. 226

High Court in England: provided that an appeal shall not
lie—

(a) from any order or finding on an inquiry into a casu-
alty affecting a ship registered in a British possession, or

(b) from a decision affecting the certificate of a master,
mate, or engineer, if that certificate has not been granted
either in the United Kingdom or in a British possession,
under the authority of this Act.

,(7) The appeal shall be conducted in accordance with
such conditions and regulations as may from time to time
be prescribed by rules made in relation thereto under the
powers contained in this part of this Act.

'' Part VII: Delivery of Goods/'
(492-501).

This part is not apparently of colonial applica-
tion; and the subject, moreover, is dealt with by
Canadian legislation.

'' Part VIII: Liability of Shipowners/'
(502-509),

This part extends ^* to the whole of Her
Majesty's Dominions '' (sec. 509);''* but Canadian
legislation has dealt with it under the power con-
ferred by sec. 735 to repeal the provisions of the
Imperial Act in their relation to ships registered in
Canada. As to all others the Imperial Act applies. *^

'' Part IX: Wrech and Salvage/'
(510-571)

This part is apparently of local application only
to the United Kingdom.

"' See Georgian Bay Transp. Co. v. Fisher, 5 Ont. App. R. 383.

•This subject has already received some attention: see ante^
p. 77, et seq. As to the course of Canadian legislation: see Waldie
V. Fullum (1909), 12 Exch. Ct. R. 325.

CAN. CON. — 15

226 CANADIAN constitution: imperial limitations.

*' Part X: Pilotage/'
{572-633),

This part extends only to United Kingdom and
the Isle of Man, but applies to all ships, British or
foreign (sec. 572). Canada has legislated fully upon
the topic.^*

'" Part XI: Lighthouses.' '
(634-675).

This part is almost entirely of local application,
though there are some sees. (670-675) as to light-
houses erected ** on or near the coast of any British
possession by or with the consent of the legislature
of that possession/' in regard to which orders in
Council (Imperial) may impose dues payable by all
ships passing it or deriving benefit from it ; but none
such are to be imposed except on address from the
colonial legislature.

Under the British North America Act, 1867,'
*^ beacons, buoys, lighthouses, and Sable Island,''
are among the specifically enumerated subjects com-
mitted to the Parliament of Canada; and there are
Canadian statutes dealing fully with these subjects.

'' Part XII: Mercantile Marine Fund.''
(676-679)

This part is local to the United Kingdom, and
calls for no further remark here.

'' Part XIII: Legal Proceedings."
(680-712).

This part applies to ** the whole of Her
Majesty's Dominions" (sec. 712); and sec. 711
provides :

«*See The Farwell (1881), 7 Que. L. R. 380.
' Section 91, No. 9.

MERCHANT SHIPPING. 227

711. Any offence under this A)ct shall, in any British
possession, be punishable by any Court or magistrate by
whom an offence of a like character is ordinarily punishable,
or in such other manner as may be determined by any Act
or ordinance having the force of law in that possession.

As has already been intimated, the principle
ordinarily recognized in British jurisprudence that
crime and the jurisdiction over crime is local, is
freely ignored in this part of the Act; and British
law is enacted, not merely to govern British sub-
jects without the realm, but to punish foreigners for
acts committed abroad.

684. For the purpose of giving jurisdiction under this
Act, every offence shall be deemed to have been committed,
and every cause of complaint to have arisen either in the
place in which the same actually was committed or arose, or
in any place in which the offender or person complained
against may be.^

685. — (1) Where any district within which any Court,
Justice of the Peace, or other Magistrate, has jurisdiction,
either under this Act or under any other Act, or at common
law, for any purpose whatever, is situate on the coast of any
sea, or abutting on or projecting into any bay, channel, lake,
river, or other navigable water, every such Court, Justice,
or Magistrate, shall have jurisdiction over any vessel being
on, or lying or passing off, that coast, or being in or near that
bay, channel, lake, river, or navigable water, and over all
persons on board that vessel or for the time being belonging
thereto, in the same manner as if the vessel or persons were
within the limits of the original jurisdiction of the Court,
Justice, or Magistrate.

(2) The jurisdiction under this section shall be in addi-
tion to and not in derogation of any jurisdiction or power of
a Court under the Summary Jurisdiction Acts.

686. — (1) Where any person, being a British subject, is
charged with having committed any offence on board any
British ship on the high seas or in any foreign port, or

*See Dunhar Dredging Co. v. ''The Milwaukee" (1907), 11
Exch. Ct. R. 179. See also the Courts (Colonial) Jurisdiction Act,
1874: 37 & 38 Vict, c. 27 (Imp.).

228 CANADIAN constitution: imperial limitations.

harbour, or on board any foreign ship to which he does not
belong, or, not being a British subject, is charged with hav-
ing committed any offence on board any British ship on the
high seas, and that person is found within the jurisdiction of
any Court in Her Majesty's Dominions, which would have
had cognizance of the offence if it had been committed on
board a British ship within the limits of its ordinary juris-
diction, that Court shall have jurisdiction to try the offence
as if it had been so committed.

(2) Nothing in this section shall affect the Admiralty
Offences (Colonial) Act, 1849.

687. All offences against property or person committed
in or at any place either ashore or afloat out of Her Majesty's
Dominions by any master, seaman, or apprentice, who at the
time when the offence is committed is, or within three months
previously has been employed in any British ship, shall be
deemed to be offences of the same nature respectively, and
be liable to the same punishments respectively, and be inquired
of, heard, tried, determined, and adjudged in the same man-
ner and by the same Courts and in the same places as if
those offences had been committed within the jurisdiction of
the Admiralty of England; and the costs and expenses of
the prosecution of any such offence may be directed to be
paid as in the case of costs and expenses of prosecutions for
offences committed within the jurisdiction of the Admiralty
of England.

And sec. 688 provides for the detention upon its
arrival in a port of the United Kingdom or within
three miles of its coasts, of any foreign ship which
** in any part of the world '' has caused injury to
any of His Majesty's subjects, until security be
given for payment of the amount of loss suffered,
such amount to be fixed, of course, by appropriate
legal proceedings.

Provision is made also for the arrest of persons
committing offences wherever they may be found,
and for their transportation to the most convenient
place for trial ; and for the use, under safeguards, of
depositions taken elsewhere than at the place of
trial.

MERCHANT SHIPPING. 229

'' Part XIV: Supplemental
{713 to end).

Under the heading : —
'' POWEES OF COLONIAL LEGISLATUEES.''

Sections 735 and 736, provide as follows : —

735. — (1) The legislature of any British possession may
by any Aot or Ordinance, confirmed by Her Majesty in
Council, repeal, wholly or in part, any provisions of this Act
(other than those of the third part thereof, which relate to
emigrant ships), relating to ships registered in that posses-
sion; but any such Act or Ordinance shall not take effect
until the approval of Her Majesty has been proclaimed in the
possession, or until such time thereafter as may be fixed by
the Act or Ordinance for the purpose.

(2) Where any Act or Ordinance of the legislature of a
British possession has repealed in whole or in part as respects
that possession any provisions of the Acts repealed by this
Act, that Act or Ordinance shall have the same effect in
relation to the corresponding provisions of this Act as it
had in relation to the provision repealed by this Act.^

Coasting Trade,

736. The legislature of a British possession may, by any
Act or Ordinance, regulate the coasting trade of that British
possession, subject in every case to the following conditions:

•In the Revised Statutes of 1906, a curious error was appar-
ently committed. The method adopted by the Parliament of
Canada to carry out the idea of sec. 735 (sec. 547 of the Act of
1854), was to legislate generally to the extent thought desirable
and within her power, and then to repeal in general terms all the
provisions of the Imperial Act which conflicted with the Can-
adian legislation. Section 951 of R. S. C. (1906), c. 113, by the
use of the word "Part" instead of "Act" limits the repeal to
matters covered by Part XV. of the Canadian Act, *' Deck and
Load Lines." Any general repealing clause, however, may per-
haps be unnecessary. See WaUie v. Fullum (1909), 12 Exch. Ct.
R„ at p. 364.

230 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

,(a) the Act or Ordinance shall contain a suspending
clause providing that the Act or Ordinance shall not come
into operation until Her Majesty's pleasure thereon has heen
publicly signified in the British possession in which it has
been passed :

(b) the Act or Ordinance shall treat all British ships
(including the ships of any other British possession), in
exactly the same manner as ships of the British possession
in which it is made;

,(c) where by treaty made before the passing of the
Merchant Shipping (Colonial) Act, 1869 (that is to say,
before the thirteenth day of May, eighteen hundred and sixty-
nine). Her Majesty has agreed to grant to any ships of any
foreign State any rights or privileges in respect of the coast-
ing trade of any British possession, those rights and privi-
leges shall be enjoyed by those ships for so long as Her
Majesty has already agreed or may hereafter agree to grant
the same, anjrthing in the Act or Ordinance to the contrary
notwithstanding.

The effect of sec. 735 has already been inci-
dentally touched upon. The position may be sum-
marized briefly : —

The power of repeal given to the Parliament of
Canada by sec. 735, is limited in three ways :

1. Only ships registered in Canada can be af-
fected by such repealing legislation.

2. Part III. of the Imperial Act, relating to emi-
grant ships, is expressly excepted. To such ships,
even when registered in Canada, the Imperial Act
extends, so far as it purports so to extend.

3. Canadian legislation requires to be confirmed
by Imperial Order in Council, i.e., by the British
government, and does not become operative until
such approval has been proclaimed in Canada.

No power is given to repeal the provisions of
the Imperial Act as to registration. The phrase
** registered in that possession," can only refer to

MERCHANT SHIPPING. 231

registry under the Imperial Act. All the essential
requirements preliminary to registry, including the
possession on the part of the owners of the qualifica-
tions for owning British ships, must be determined
by the British statute. In the British mercantile
marine there are none but British ships, with home
ports, it is true, in all parts of the Empire, but with
a British registry under one uniform law operative
wherever His Majesty reigns or has jurisdiction.
Any Canadian legislation, therefore, on the subject
of registration derives no efficacy from sec. 735. It
must stand or fall by the Colonial Laws Validity Act,
1865. To the extent, but only to the extent, of its
repugnancy to the provisions of the Merchant Ship-
ping Act, 1894, it is void and inoperative.. It must
be read subject to the Imperial Act.

Section 735 allows colonial legislation (to the ex-
tent and subject to the conditions therein men-
tioned) repugnant to the Imperial Act. The Colonial
Laws Validity Act, 1865, allows colonial legislation
on the subject matter of the Imperial Act (without
any condition as to the approval of the British gov-
ernment), so long as and to the extent that such
colonial legislation is not repugnant to the Imperial
Act.

With reference to the coasting trade of Canada
the power conferred by sec. 736 has been freely ex-
ercised on lines duly approved of by the Imperial
authorities.^^

The law which is in force on a British ship — ^no
matter where registered — upon the high seas is the
law of her flag, that is to say, British law.^ Nice
questions as to private international law might thus

"See R. S. C. (1906), c. 113, Part XVI: "Coasting Trade."
^Per Cockdurn, C.J., in R. v. Keyn (1876), L. R. 2 Ex. D. 152;
4€ L. J. M. C. 17, at p. 64. See also Dicey, Private International
Law (1896), 633.

232 CANADIAN constitution: imperial limitations.

arise ; as if, for instance, a foreigner upon a British
ship should make his will there. As to the position
of colonial British subjects at sea upon a British
ship, a quotation from Hall will suffice to suggest
the somewhat anomalous conditions :^

^^ British jurisdictiQn is naturally felt in its largest
extension by British subjects sailing in British vessels. On
board such vessels no competing law is possible. Whether
they are commissioned vessels of the State or whether they
are in the less intimate relation to it of merchant ships,
they are entirely covered by the national sovereignty in places
where no equal or superior sovereignty exists. British sub-
jects therefore are solely governed on board British ships
by whatever law is able to accompany them on leaving the
shores of the British Dominions. With regard to the nature
and extent of this law, it is enough to repeat that the common
law of England reigns, in so far as the ordinary statute law
does not operate outside of the United Kingdom, and in
so far as special laws such as the Merchant Shipping Act,
or the Slave Trade Acts, fail to reach ;^ and to point out
that since the laws enacted by the governments of India and
the colonies take effect only within the territories which they
are expressly made to touch an Indian or colonial subject of
the Crown on embarking in a British ship leaves behind him
all laws under which he was locally placed that are not
identical with the law of England." *

Admiralty Jurisdiction.

(1) Criminal: ^^ The administration of the crim-
inal law of England was formerly distributed among
two tribunals ; the Court of Oyer and Terminer took
cognizance of offences committed in the body of a

^Hall, 239, et seq.

» See Tomalin v. Pearson (1909), 2 K. B. 61; 78 L. J. K. B. 863.

*By the Commonwealtli of Australia Constitution Act, 1900
—63 & 64 Vict. c. 12 (Imp.)— provision is made (sec. 5), that
" the laws of the Commonwealth shall be in force on all British
ships, the Queen's ships of war excepted, whose first port of
clearance and whose port of destination are in the Common-
wealth."

MERCHANT SHIPPING. 233

county, the Court of the Lord High Admiral of
those oommitted on the sea. A divisum imperium
existed with respect to rivers and arms of the sea
within the body of a county; each Court claimed
concurrent jurisdiction over those waters.''^ In
Eichard II. 's time statutes were passed to restrain
the exercise of jurisdiction by the Court of the Ad-
miral to * ^ only of a thing done upon the sea ; * '^ ad-
mirals and their deputies were not thenceforth to
*' meddle of anything done within the realm.** This
prohibition is thus elaborated in the later statute :^

'' Of all manner of contracts, pleas, and quarrels and all
other things rising within the bodies of the counties as well
by land as by water, and also of wreck of the sea, the
Admirals Court shall have no manner of cognizance, power,
nor jurisdiction . . . nevertheless of the death of a man
and of a maihem done in great ships, being and hovering in
the main stream of great rivers, only beneath the bridges of
the same rivers nigh to the sea, and in none other places of
the same rivers, the Admiral shall have a cognizance.'^

In England the criminal jurisdiction of the Court
of the Admiral was transferred to Commissioners in
the reign of Henry VIII., ^ was regulated from time
to time by statutes and, with the passing of the Act
of 1844 entitled ** An Act for the more speedy trial
of offences committed on the High Seas, * '® it may be
said to have become part of the ordinary adminis-
tration of the criminal law.

In the colonies the AdmiraPs criminal jurisdic-
tion was exercised in Vice-Admiralty Courts until
the time of William III., when it was transferred to
Commissioners to be administered according to the

'Per Phillimore, J., in R. v. Keyn (1876), L. R. 2 Ex. D. 152;
46 L. J. M. C. 17, at p. 18.
« 13 Rich. II., St. 2, c. 5.
' 15 Rich. II. c. 3.

• 28 Hen. VIII. c. 15.

• 7 & 8 Vict. c. 2.

234 CANADIAN constitution: imperial limitations.

civil law.'*" In 1806, '' the course of the laws of
this realm used for offences committed upon the land
within this realm, ^^ was substituted for the civil
law/ And in 1849, '' an Act to provide for the
prosecution and trial in Her Majesty ^s colonies of
offences committed within the jurisdiction of the
Admiralty,''^ was passed by the Imperial Parlia-
ment, and this Act is still in force, being expressly
saved by the Merchant Shipping Act, 1894.'^ The
language of the Act of 1849, is of the widest
scope ; but, being limited to offences within the jur-
isdiction of the Admiralty, it did not when passed
apply to offences upon other than British ships,^
though now it covers, as well, all offences on foreign
ships within British territorial waters.^ As to of-
fences upon British ships the jurisdiction of colonial
Courts is complete, no matter where upon the high
seas the offence may have been committed ; but the
punishment to be awarded is to be as if the convic-
tion had taken place in England (sec. 2) . And where
death takes place in a colony following ** stroke,
poisoning, or hurt '' at sea, the homicide is to be
deemed to have been committed wholly within the
colony (sec. 3).®*

The process of the Vice-Admiralty Courts exist-
ing in Canada prior to 1890, did not extend to the
inland waters of Canada.^ Ontario had its Maritime

"10 & 11 Wm. III. c. 7. The enforcement of the civil law
rather than the common law of England in the Courts of the
Admiral appears all through as one ground of complaint, as the
preambles to the various statutes shew.

^ 46 Geo. III. c. 54.

•12 & 13 Vict., c. 96 (Imp.). See Appendix.

•"'Section 686: see ante, pp. 227-8.

^ R. V. Keyn, supra.

" See post, p. 243.

»» Colonial legislatures are empowered to deal with the con-
verse case: see 23 & 24 Vict. c. 102 (Imp.).

^ See post, p. 238.

MERCHANT SHIPPING. 235

Court under an Act of the Parliament of Canada f
but Manitoba and the North- West Territories were
without tribunals possessing admiralty jurisdiction/
Now, as will appear, the jurisdiction of the Exche-
quer Court of Canada in Admiralty extends to the
whole of Canada over all waters, tidal or non-tidal
or naturally navigable or artificially made so. ' '^

Whatever jurisdiction in criminal matters, prop-
erly so called, these Acts may have left with Vice-
Admiralty Courts in the colonies has been practically
taken from them by the Colonial Courts of Admir-
alty Act, 1890,^ which provides that a Colonial Court
of Admiralty shall not have jurisdiction under this
Act to try or punish a person for an offence which
according to the law of England is punishable on
indictment/" Any jurisdiction of a penal character,
therefore, exerciseable by a Colonial Court of Ad-
miralty is to be found in special legislation affecting
such Courts / so that it may be said, speaking gen-
erally, that the jurisdiction of Colonial Courts of
Admiralty is now a civil jurisdiction only.

Admiralty Jurisdiction: (2) Civil.

The statutes of Richard II. touched the civil as
well as the criminal jurisdiction of the Admiral's
Courts ; and many matters relating to shipping
were cognizable only by the ordinary Courts of the
realm.^ What these were appears to some extent in
the various statutes by which from time to time, the

•See The Picton (1879), 4 iS. C. R. 648; Monaghan v. Horn
(1881), 7 S. C. R. 409.

* Bergman v. The '* Aurora" (1893), 3 Exch. Ct. R. 228.
"Post, p. 239.

* 53 & 54 Vict. c. 27 (Imp.). In Appendix.
"Section 2, s.-s. 3 (c).

^E.g., The Fisheries Protection Act, Behring Sea Award Act,
etc.

^Ante, p. 233.

236 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

civil jurisdiction of the Courts of Admiralty was
extended. Full treatment of this topic is not at-
tempted here. Suffice it to say, that, apart from
these statutes, the jurisdiction very often depended
upon very fine distinctions. For example, wages due
upon a parole contract for service at sea could be
sued for in the Court of Admiralty; while if they
were due by a contract under seal only the common
law Courts could entertain the action.^ Salvage or
towage services rendered or necessaries furnished
upon the high seas were proper subjects of Admi-
ralty jurisdiction; rendered or furnished within
the body of a country — which would include navig-
able rivers and many harbours — only a Court of
common law could enforce recompense. In 1840, an
Act was passed '* to improve the practice and ex-
tend the jurisdiction of the High Court of Admi-
ralty in England,''* under which claims upon mort-
gages could, for the first time, be adjusted in the Ad-
miralty Court, but only where the ship was under
arrest or the proceeds of her sale were in Court;'
and recompense for salvage or towage services and
payment for necessaries was no longer to depend in
the High Court of Admiralty upon where they were
rendered or furnished. In 1861, the jurisdiction of
the Court was still further extended® to cover, for
example, claims for building, equipping, or repair-
ing any ship, if the ship were under arrest when the
cause was instituted; ^' any claim for damage done
by any ship;'' questions between co-owners; en-
forcement of mortgages and several other matters
as to which theretofore jurisdiction had been denied

» See Beaton v. " Christine," 11 Exch. Ct. R. 167.

*3 & 4 Vict. c. 45 (Br.).

'Now these limitations no longer exist.

•24 & 25 Vict. c. 10 (Br.). It was in some respects, indeed,
restrictive. See sec. 5 as to necessaries furnished: Rochester
Coal Co. V. ''Garden City'* (1901), 7 Exch. Ct. R. 34.

MERCHANT SHIPPING. 237

or was doubtful. For further information as to the
jurisdiction of the High Court of Admiralty in Eng-
land, there are well known works to be consulted.^

Colonial Admiralty Courts and Jurisdiction,

So far as concerns the Constitution of these
Courts, the position is thus shortly put by Anson :®

"Admiralty Courts in the colonies have had a different
history to others. Admiralty jurisdiction existed to deal
with matters arising at sea, outside the purview of other
Courts. So the creation of Vice- Admiralty Courts in the
colonies was not the establishment of a new jurisdiction, but
a machinery for giving effect to one already existing. Acts
of 1863 and 1867^ gave facilities for establishing such Courts
in all the colonies by instrument under the seal of the Ad-
miralty and these Vice-Admiralty Courts were emanations
of the Admiralty Court at home. But in 1890 these Imperial
Courts, existing side by side with the colonial Courts, were
abolished^® and their duties and powers transferred, or the
colonial legislatures were empowered to transfer them, to the
colonial Courts/'

The jurisdiction of the Vice- Admiralty Courts in
Canada prior to 1890 is particularly specified in the

* The following cases from tlie Exch. Ct. Reports may usefully
be noted:

1. As to wages: Burke v. ''Vipond'' (1913), 14 B. C. R. 326;
Beaton v. " Christine" 11 E. C. R. 167 ; Ckignon v. " Savoy "
(1904), 9 E. C. R. 238.

2. As to equipment: Judge v. ''John Irwin'' (1911), 14 E. C.
R. 20.

3. As to actions between co-owners: Heater v. Anderson
(1910), 13 E. C. R. 417.

4. As to " damage done "by any ship": Barber v. " Nederland"
(1909), 12 E. C. R. 252; Wyman v. '' Duart Castle" (1899), 6
E. C. R. 387.

5. As to necessaries furnished: Rochester, etc., Co. v. " Garden
City" (1901), 7 E. C. R. 34. •

•Law and Custom of the Const., pt. II., 462.

» 26 & 27 Vict. c. 24 (Imp.) ; 30 & 31 Vict. c. 45 (Imp.).

^"53 & 54 Vict. c. 27 (Imp.). See Appendix.

338 CANADIAN constitution: imperial limitations.

Imperial ^'Vice-Admiralty Courts Act, 1863."' Now
under the legislation of 1890, it is as wide as that of
the High Court of Admiralty in England; as will
appear.

The Colonial Courts of Admiralty Act, 1890,^
provides (sec. 3), that the legislature of any British
possession may by any Colonial law^ (a) declare
any Court of unlimited civil jurisdiction — unlimited,
that is, as to value or amount recoverable — whether
original or appellate, in that possession to be a
Colonial Court of Admiralty, and provide for the
exercise by such Court of its jurisdiction under the
Act, and limit territorially or otherwise the extent
of such jurisdiction; and (b) confer upon any other
inferior or subordinate Court in the possession such
partial or limited Admiralty jurisdiction under such
regulations, and with such appeal (if any) as may
seem fit: Provided that any such colonial law shall
not confer any jurisdiction which is not by th,e Act
conferred upon a Colonial Court of Admiralty.

The Parliament of Canada is the proper '* legis-
lature of a British possession " to act under this
provision,* and by '' The Admiralty Act, 1891, ''" the

*At that date there were six Vice-Admiralty Courts in the
colonies now forming Canada, namely: British Columbia; Van-
couver Island; Lower Canada, otherwise Quebec; New Bruns-
wick; Nova Scotia; and Prince Edward Island. As to the position
of Manitoba and the North-West Territories, prior to 1890: see
Bergman v. "Aurora" (1893), 3 Exch. Ot. R. 228. Ontario was
given a Maritime Court in 1877 (40 Vict. c. 21, Dom.): see The
Picton (1879), 4 S. C. R. 648. In R. v. Sharp, 5 Ont. Pract. R.
135, Wilson, J., held that the Great Lakes of Canada were " high
seas" within the jurisdiction of the Admiralty; but the process
of the Quebec Vice-Admiralty Court did not extend to them.

* 53 & 54 Vict. c. 27 (Imp.). See Appendix.

' The provisions of sec. 4 ( as to approval of such colonial law
by Her Majesty in Council), and of sec 7 (as to a like approval
of Rules of Court), have been duly complied with as to Canada.
See 3 Exch. Ct. R.; appendix.

*See The Interpretation Act, 1889 (Imp.), cap. 63, s. 18 (2).

•^54 & 55 Vict. c. 29 (Dom.).

MERCHANT SHIPPING. 239

Exchequer Court of Canada was declared to be,
within Canada, a Colonial Court of Admiralty, with
all the jurisdiction, powers, and authority conferred
by the Act or by the Imperial statute upon which it is
founded. So far from limiting the Court's jurisdic-
tion, territorially or otherwise, the Act provides :

"4. Such jurisdiction, powers and authority shall be exer-
cisable and exercised by the Exchequer Court throughout
Canada and the waters thereof, whether tidal or non-tidal,
or naturally navigable or artificially made so ; and all persons
shall, as well in such parts of Canada as have heretofore been
beyond the reach of the process of any Vice- Admiralty Court
as elsewhere therein, have all rights and remedies in all
matters (including cases of contract and tort and proceedings
in rem and in personam ) , arising out of or connected with
shipping, trade or commerce, which may be had or enforced
in any Colonial Court of Admiralty under The Colonial
Courts of Admiralty Act, 1890."

The Canadian Act provides also for the constitu-
tion of Admiralty Districts with Local Judges in
Admiralty; and each such Local Judge has within
his District the full jurisdiction of the Judge of the
Exchequer Court in Admiralty, but subject to ap-
peal to such Judge.

The jurisdiction of the Exchequer Court in Ad-
miralty is provided for in the Imperial Act as fol-
lows:

''2.— (2) The jurisdiction of a Colonial Court of Ad-
miralty sihall, subject to the provisions of this Act,^ be over
the like places, persons, and things, as the Admiralty juris-
diction of the High Court in England, whether existing by
virtue of any statute or otherwise; and the Colonial Court
of Admiralty may exercise siich jurisdiction in like manner
and to as full an extent as the High Court in England and

•As to limiting such jurisdiction, territorially or otherwise,
by colonial law (sec. 3, ante, p. 238). Under the proviso to sec.
3, it cannot be extended beyond the limits indicated in sec. 2.

240 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

shall have the same regard as that Court to international law
and the Comity of Nations."

Collision Cases: These have been said to be
communis juris/ and the jurisdiction of the Admi-
ralty Division of the High Court in England does
not depend upon the place of collision. But where a
collision took place in the harbour of Sandusky, Ohio,
between two United States ships, it was held by the
Supreme Court of Canada that the Exchequer Court
of Canada in Admiralty had no jurisdiction; at
least, under the circumstances. The proceedings
had been instituted, and the warrant for the ship's
arrest issued before she came into Canadian waters ;
and when she did come into those waters it was only
casually, as it were, in the course of a voyage from
one United States port on the lakes to another. She
was arrested, too, in one of the channels of the
Detroit Eiver as to which the Ashburton Treaty of
1842 provides that they should be ^ ^ equally free and
open to the ships, vessels, and boats of both parties."*
This judgment must be taken to affirm that each one
of these circumstances was sufficient ground for
denying jurisdiction to the Exchequer Court in
Admiralty.^

^ See ante, p. 79n. For example, see The Kaiser Wilhelm der
Qrosse (1907), 76 L. J. P. 138, where the collision took place in
French territorial waters between a British and a German ship.

TTie "D. C. Whitney" (1907), 38 S. C. R. 303.

•Hodgins, Lo.J., whose judgment in this case (10 Exch. Ct.
R. 1), was reversed hy the Supreme Court of Canada, remained,
evidently, unconvinced, and in Dunl)ar Dredging Co. v. The " Mil-
waukee" (1907), 11 Exch. Ct. R. 179, discussed the questions
involved at some length. So far as treaty obligations affect the
matter, the same question might arise as to the navigation of the
Pacific Coast, and particularly of the waters of the Gulf of
Georgia, lying inside Vancouver Island, to the west and north of
the international boundary line between the United States and
Canada as settled by the Treaty of Washington and the award
thereunder. As pointed out by Hodgins, Lo.J., the treaty articles
dealing with the question of free navigation have not had par-
liamentary confirmation and, therefore, cannot affect private

MERCHANT SHIPPINU. 241

As illustrating the fine distinctions which
even yet may be drawn in order to determine Ad-
miralty jurisdiction, reference may be had to a case
which was decided in 1909 by the Privy Council on
appeal from the Canadian Courts.^" The appellants
built the ship in Scotland, taking a mortgage to se-
cure the unpaid balance of her purchase price; and
on this mortgage proceedings were instituted in the
British Columbia Admiralty District against the
ship after her delivery to the owners in that pro-
vince. The owners complained that she was not up to
specifications and set up as a defence pro tanto that
by reason of the builders ' breach of contract the ship
was worth less than the ship for which they had
bargained. It was held that this defence raised a
question which the Exchequer Court could not enter-
tain by way of counterclaim ; and, this being so, the
doctrine or practice which permitted it to be raised
by way of defence in the common law Courts (which
had jurisdiction over both claim and counterclaim)
could not be invoked in favour of the ship-owners.

Notwithstanding the provision in the Canadian
Exchequer Court Act making a judgment of the
Supreme Court of Canada on appeal from the Ex-
chequer Court '' final and conclusive,^' there is an
appeal as of right to the Privy Council under the
Imperial Colonial Court of Admiralty Act, 1890.^

rights: see ante, p. 136. See also the judgment of Mr. Justice
Garrow in Dunbar, etc. Co. v. '* Amazonas," et al. (1911), 13 Exch.
Ct. R., at p. 498.

"Bow;, McLachlan d Co. v. The "Camosun'' (1910), A. C. 597;
79 L. J. P. C. 17.

^Richelieu Nav. Co. v. The '"Cape Breton*' (1907), A. C. 112;
76 L. J. P. C. 14. See ante, p. 157, et seq.

CAN. CON. — 16

242 canadian constitution : imperial limitations.

Cakadian Tekritorial Waters.
(1) On the Sea Coast:

The ^* realm of England '' extends only to. low
water mark; all beyond is ^^ the high seas/' the
common highway for the ships of all nations. Inter-
national law or the custom of nations recognizes the
right of a maritime state to exercise jurisdiction for
certain purposes looking to self protection over that
portion of the high seas which washes its shore f to
what distance is not settled, though custom tends to
stretch it to whatever distance is reasonably neces-
sary for those purposes. But the recognition falls
short of according that full territorial sovereignty
which would warrant interference with the peaceful
enjoyment by other nations of the common highway
'* upon their lawful occasions." The soil beneath
the water beyond low water mark is often appropri-
ated in the erection of piers, wharves, lighthouses,
etc., but as these are usually in aid of navigation
and useful to all nations no objection is raised.
What international trouble might be caused by ap-
propriation for other purposes need not be dis-
cussed f for, so far as the Courts of the appropriat-
ing state are concerned, the state legislature may
make the appropriation lawful.

Apart from legislation, British Courts have no
criminal jurisdiction over -the acts of persons on the
high seas upon other than British ships. These for
many purposes are " floating islands '' of the Em-
pire and, there being no other law to come into com-
petition with the law of the flag, that law governs and
the jurisdiction to enforce it rested, as has been seen,

^This has already been sufficiently discussed: see ante, pp.
108-9.

' Coulson and Forbes, Law of Waters, 2.

MERCHANT SHIPPING. 343

with the Courts of the Lord High Admiral of Eng-
land. But in the well-known case arising from the
sinking of the British ship ^^ Strathclyde '^ by the
German ship '^ Franconia '' off Dover pier in 1876,
it was held * that the Central Criminal Court — in
which was vested the criminal jurisdiction of the
Admiralty — could not try the captain of the German
ship for manslaughter of a British subject drowned
as the result of the collision. In the judgment in
that case the various propositions so far stated were
affirmed. The collision, though within the three-
mile limit off the British coast, was held not to have
occurred in British territory ; and, in the absence of
legislation, the alleged crime, having been com-
mitted abroad by a foreigner,^ could not be enquired
of in a British Court.

The power of the British Parliament to legislate
oh the subject, ** to extend the realm,'* as Chief
Justice Coleridge put it, ^ * how far so ever it pleases
to extend it by its enactments, at least so far as to
bind the tribunals of this country '^^ was freely ad-
mitted ; and this power was at once exercised in the
passing of the Territorial Waters Jurisdiction Act,
1878,^ but only for the purposes of the criminal law.

The statute, indeed, contains a recital that ^^ the
rightful jurisdiction of Her Majesty, Her heirs and
successors extends and has always extended over
the open seas adjacent to the coasts of the United
Kingdom and of all other parts of Her Majesty's
dominions to such a distance as is necessary for the
defence and security of such dominions;" but the

*R. V. Keyn (1876), L. R. 2 Ex. D. 152; 46 L. J. M. C. 17; a
veritable mine of learning on the subject of territorial exten-
sion and admiralty jurisdiction. See ante, p. 90n.

' At that time a British subject could be tried for offences
abroad: see ante, p. 227. But this was by statute.

• See ante, p. 88, et seq.

Ml & 42 Vict. c. 73 (Imp.). In Appendix.

244 CANADIAN constitution: IMPERIAL LIMITATIONS.

title is merely ^ * An Act to regulate the law relating
to the trial of offences committed on the sea within
a certain distance of the coasts of Her Majesty's
dominions ' ' and the enacting clauses deal only with
the exercise of criminal jurisdiction.

An offence committed by a person, whether he is
or is not a British subject, on the open sea within
the ' ^ territorial waters ' * of the Empire, is declared
to be within the jurisdiction of the Admiral, al-
though it may have been committed on board or by
means of a foreign ship; and the person who com-
mitted the offence may be arrested, tried and pun-
ished accordingly. This enactment suffices to bring
such an offence within the Admiralty Offences (Col-
onial) Act, 1849, already discussed on a previous
page;® but no prosecution of a foreigner under the
Act is to take place without the consent of one of
the secretaries of state (in the United Kingdom) or
of the Governor-General of Canada or the proper
provincial Lieutenant-Governor (in Canada).

What are ^^ territorial waters of Her Majesty's
dominions ' ' is defined in the Act to mean such part
of the sea adjacent to British territory ^* as is
deemed by international law to be within the terri-
torial sovereignty of Her Majesty;" but this would
leave the matter too doubtful and therefore the
definition proceeds: ** and for the purposes of any
offence declared by this Act to be within the juris-
diction of the Admiral, any part of the open sea
within one marine league of the coast measured
from low water mark shall be deemed to be open sea
within the territorial waters of Her Majesty. ' '

The Parliament of Canada in legislating (need-
lessly perhaps) on this topic repeated the language
of the British Act, but left out the clause in section 4
which provides that proceedings before a Justice

"Ante, p. 234.

MERCHANT vSHIPPINQ. 245

previous to committal for trial should not be deemed
proceedings for the trial of the offence so as to re-
quire the consent of the Governor, etc. This, how-
ever, was held to be immaterial as the British Act is
clearly Imperial, extending propria vigore to Can-
ada, and the omitted clause therefore fully operative
here.®

The result then is that all offences committed
within the '' three-mile limit " are cognizable by
Canadian Courts under this Act, by whomsoever
committed ; while as to the open sea beyond that limit
only such offences as are committed on board Bri-
tish ships are within the jurisdiction of the Admiral
and as such cognizable in Canadian Courts under the
'^Admiralty Offences (Colonial) Act, 1849." And, as
has already appeared,^^ the Merchant Shipping
Act, 1894, appreciably extends the jurisdiction of
British Courts over offences committed abroad by
members or ex-members of the crew of a British
ship.

With regard to narrow arms of the sea running
into British territory, bays, inlets, etc., inter fauces
terrae British law asserts absolute territorial sov-
ereignty; but here again there is no unanimity
among international jurists as to the width of the
entrance which will suffice to bring the principle into
operation. Where the British legislature has by its
enactments treated an arm of the sea as British
territory that is sufficient for a British Court, as in
the case, for example, of Conception Bay in New-
foundland, which was on this principle, held to be
British territory by the Privy Council in 1877.^ In
the judgment of the Board, delivered by Lord

'R. V. Tano (1909), 14 B. C. Rep. 200.

^""Ante, p. 227.

^Direct U. 8. Cable Co. v. Anglo-Amer, Tel. Co. (1877), L. R.
2 App. Gas. 894; 46 L. J. P. C. 71. As to the Bay of Ohaleurs:
see Mowat v. McPhee, 5 S. C. R. 66.

246 CANADIAN CONSTITUTION I IMPERIAL LIMITATIONS.

Blackburn, the whole question is discussed and more
extended treatment of it is not called for here.

It would seem clear that the soil beneath the
waters of such arms of the sea on the Canadian
coast would be part of the Crown lands of the prov-
ince into which they penetrate, except in the case of
public harbours,^* though it may be presumptuous to
express too decided an opinion upon the point. The
proprietary interest of the Crown in the soil below
low water mark along other parts of the coast is of a
very doubtful character, apart from express legisla-
tive declaration;^ and, as already pointed out, the
Territorial Waters Jurisdiction Act, 1878, is silent
as to proprietary interest. There is merely an
assertion of jurisdiction, both past and present, for
purposes of defence and security.^

(2) Inland Waters:

The waters of the Great Lakes which lie along
the boundary between Canada and the United
States are usually spoken of as inland waters and
the Canadian ' ^ realm ' ' extends to the international
line, with as full territorial sovereignty as over
waters strictly inland.* By treaty conventions with
the United States the free navigation of these boun-
dary waters is open to the ships of both countries.

Criminal jurisdiction has been asserted and pro-
vided for by Canadian statutes from early times

'* B. N. A. Act, sec. 108, schedule 3.

'This question is much discussed in R. v. Keyn, uH supra,
and proprietary interest in the Crown denied. See also judg-
ment of Duff, J., in Re British ColumMa Fisheries <1913), 47
S. C. R., at p. 502.

^On this question of title, see also Coulson and Forces, Law
of Waters, 8, et seq.

*-The Grace (1894), 4 Exch. Ct. R. 283; Dundar Dredging
Co. V. The ''Milwaukee" (1907), 11 Exch. Ct. R. 179. As to the
Bay of Chaleurs: see Mowat v. McPhee (1880), 5 S. C. R. 66.

MERCHANT SHIPPING. 247

and the boundary lines of townships extend to the
international line.^ It has also been held that the
Great Lakes are '^ high seas ^' within the jurisdic-
tion of the Admiral/ so that the Imperial statutes
of 1849 and 1878 would convey jurisdiction to Cana-
dian Courts over offences committed on those
waters, even if the exercise of criminal jurisdiction
had not been fully provided for by Canadian legis-
lation.

The same territorial sovereignty with propri-
etary ownership of the underlying soil exists, it
would seem, in regard to the waters of the Gulf of
Georgia lying behind Vancouver Island and to the
north and west of the international boundary line
and as far out as the seaward entrance to the Straits
of Juan de Fuca. These are Canadian territorial
waters apart altogether from the Territorial Waters
Jurisdiction Act, 1878 ; for they are not ' ^ open ^ ' sea
and it is only as to a three-mile belt of open sea that
the Act of 1878 was necessary. These waters are
** within the realm " and the underlying soil is part
of the province of British Columbia and held by the
Crown, it seems clear, in right of that province ; just
as the soil beneath the waters of strictly inland lakes
is so held."^

» See 11 Exch. Ct. R., at p. 181-2.
" R. V. Sharpe, 5 Ont. Pract. R. 135 : see ante, p. 238.
^As to public rights of fishing and of navigation in strictly
inland waters: see Re B. C. Fisheries (1912), 47 S. C. R. 493.

CHAPTER XIIL

Miscellaneous Imperial Statutes.

Bankruptcy Acts,

The extent to which the British Acts are of
colonial application has been considered by the Privy
Council and the House of Lords. The Act of 1869
was held to vest in the assignee in bankruptcy real
estate of the bankrupt situate in a colony.^ The
words of the particular sections were ^* lands and
every description of property whether real or per-
sonal '' and '' all such property as may belong to or
be vested in the bankrupt.^' There being thus no
^^ express words/ ^ the question was whether there
was the ** necessary intendment " required by the
Colonial Laws Validity Act.^ It was held that ^ ^ if a
consideration of the scope and object of a statute
leads to the conclusion that the legislature intended
to affect a colony, and the words used are calculated
to have that effect they should be so construed.'' The
scope and object of the statute was determined,
not only on the language of the Act itself, but
on their Lordships' view of the policy of the
whole ^eries^ of Bankruptcy Acts as being in pari
materia, and it was held that * * there is no good rea-
son why the literal construction of the words should
be cut down so as to make them inapplicable to a
colony. ' '

^Callender \. Col. Se&y Lagos (1891), A. C. 460; 60 L. J. P.
C. 33. A Scotch bankruptcy under the Act of 1856 (19 & 20
Vict. c. 79), would seem to have the same effect: see sec. 102.

^28 & 29 Vict. c. 63 (Imp.); see Appendix.

' The Act of 1849 had been held not to extend to New Zealand;
Bunny v. Hart, 11 Moo. P. C. 189.

MISCELLANEOUS IMPERIAL STATUTES. 249

The natural result would follow that the dis-
charge of a bankrupt under the Imperial Act may be
pleaded as a defence to an action in a colonial Court.*

On the other hand, it has recently been held by
the House of Lords^ that a foreigner cannot be ad-
judicated a bankrupt under the Imperial Act for an
act of bankruptcy committed abroad. In that case
certain United States merchants carried on business,
through a manager, in England. Being in financial
difficulties they executed in the United States a deed
of assignment for the benefit of creditors. This
would have been an act of bankruptcy under the
Imperial statute had the assignment been executed
in England; but its execution abroad was held not
to bring them within the Act. A resident of a colony
is a ** foreigner '' within the meaning of thi^
decision.®

Buying and Selling Offices.

The statute of Edward VI^ against trafficking in
public offices was expressly extended to the colonies
by an Act of Geo. III.«

^ Ellis V. McHenry, L. R. 6 C. P. 228; 40 L. J. P. C. 109. See
also Nicholson v. Baird, N. B. Eq. Cas. (Trueman), 195; Fraser
V. Morrow, 2 Thomp. (N.S.), 232; Hall v. Goodall, 2 Murd. Epit.
(N.S.), 149; V. Irving, 1 P. E. I. Rep. 38.

'Cooke V. Chas. A. Vogeler Co. (1901), A. C. 102; 70 L. J.
K. B. 181. See ante, p. 84. See, however, 3 & 4 Geo. V., c. 34,
sec. 8 (Br.), which extends the meaning of the word 'debtor,'
as used in the Acts of 1883 and 1890, to persons carrying on busi-
ness in England by an agent or manager, etc.

•See Colquhoun v. Brooks (1888), L. R. 21 Q. B. D. 65; 57 L.
J. Q. B. 70, 439.

^5 & 6 Ed. VI. c. 16.

« 49 Geo. III. c. 126, sec. 1. See R, v. Mercer, 17 U. C. Q. B. 602;
R. V. Moodie, 20 U. C. Q. B. 389.

250 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

Companies' Acts.

Neither the Joint Stock Companies' Arrange-
ment Act, 1870, nor the other Companies' Acts with
which it must be read and construed, extend to the
colonies or are intended to bind the colonial Courts ;
and proceedings in an English Court under those
Acts cannot be pleaded in a colony as a defence to
an action by a colonial creditor.®

" It is impossible to contend that the Companies' Acts
as a whole extend to the colonies, or are intended to bind the
colonial Courts. The colonies possess and have exercised the
power of legislating on these subjects for themselves, and
there is every reason why legislation of the United Kingdom
should not unnecessarily be held to extend to the colonies,
and thereby overrule, qualify, or add to their own legislation
on the same subject. It is quite true that the provisions of
the Arrangement Act are expressed to extend to all creditors,
and so they do to foreign as well as to colonial creditors,
but only when their rights are in question in the Courts of
the United Kingdom. . . . Nor do their Lordships think
that any -assistance is to be derived from what has been held
with regard to the application of the Bankruptcy Act to the
colonies. It has been decided that by the express words ^'^
of the Bankruptcy Acts all the property, real and personal,
of an English bankrupt in the colonies as well as in the
United Kingdom is vested in his assignees or trustees. Their
title must therefore receive recognition in the colonial Courts,
from which it has been considered to follow that the bank-
rupt, being denuded of his property by the English law, is
also entitled to plead the discharge given him by the same
law. But how does this assist the appellants? We have to
deal with the winding-up of a company, not with bankruptcy,
and there is a material distinction between the effect of bank-
ruptcy and that of winding-up. In the former case the
whole property of the bankrupt is taken out of him, whilst

""New Zealand Loan Co. v. Morrison (1898), A. C. 349; 67 L.
J. P. C. 10.

^"But see ante, p. 248.

MISCELLANEOUS IMPERIAL STATUTES. 251

in the latter case the property remains vested in title and in
fact in the company, subject only to its being administered
for the purpose of the winding-up under the direction of the
English Courts."

And the respondent held her judgment, obtained
in the Victorian Courts, for moneys deposited with
the appellants in Victoria before the making of the
English winding-up order.

If a winding-up of a company incorporated under
the Imperial Acts is desired in and for a colony, it
must be decreed by the colonilal Court under colonial
legislation.^

'' The Companies Seals Act, 1864, ^'^ is not,
strictly speaking, an Imperial statute. It applies
only to companies incorporated under the British
Act of 1862 and empowers them to adopt and use a
special seal for transactions outside of the United
Kingdom. The reverse method appears in an Im-
perial Act of 1908^* which empowers companies in-
corporated in British Possessions to hold land on
complying with certain provisions of the (Imperial)
Companies Act.

To what extent the Imperial Copyright Act of
1842^ was operative in Canada was considered by
the House of Lords in 1868.* The precise case, as
stated by the Lord Chancellor (Lord Cairns), was
whether an alien friend publishing a work in Eng-
land during the time of his or her temporary sojourn
in a British colony was entitled to the protection

^ Allen V. Hanson (1890), 18 S. C. R. 667; 4 Cart. 470.
'27 & 28 Vict. c. 19 (Br.). See also the Companies Act, 1862,
sec. 55, as to appointing agents abroad.
2»8 Edw. VII., c. 12.
•5 & 6 Vict. c. 45 (Imp.).
*Routl€dge v. Low, L. R. 3 E. & I. App. 113; 37 L. J. Ohy. 454.

252 CANADIAN constitution: imperial limitations.

given by the Act. The facts were that an American
authoress had crossed into Canada and her book was
published in London during her few days^ stay in
Montreal. Three questions were considered: First,
where must the publication take place? Secondly,
what is the area over which the protection of the
Act extends? Thirdly, who is entitled to that pro-
tection? Although the Act expressly provides^ that
it shall extend to * * every part of the British Domin-
ions, ' ' it was held to protect those works only which
were published in the United Kingdom for reasons
thus summed up by Lord Westbury : ^ ^ This results
from various provisions and conditions contained in
the Act which could not possibly be complied with
if the first publication was to take place in distant
parts of the British Empire. ' ' As to the area over
which the protection afforded by the Act was to
extend, the language of the statute^ was express that
the copyright when created should extend to every
part of the British Dominions. The third question
as to what authors could procure the protection of
the Act has already been fully discussed."^

Upon the question of chief importance from a
Canadian standpoint, the operation of the Act in a
colony having copyright legislation of its own, the
language of Lord Cranworth and of Lord Chelms-
ford may be quoted:

" The decision of your Lordships' House in Jejfreys v.
Boosey^ rested on the ground that the statute of Anne, then
alone in question, must be taken to have had reference exclu-
sively to the subjects of this country, including' in that de-
scription foreigners resident within it, and not to have con-
templated the case of aliens living abroad beyond the auth-

» Section 29.

« Sections 15 and 29.

^ See ante p. 72, et seq.

« (1855), 4 H. L. Cas. 815; 24 L. J. Ex. 81.

MISCELLANEOUS IMPERIAL STATUTES. 253

ority of the British legislature. The British Parliament
in the time of Queen Anne must be taken prima facie to
have legislated only for Great Britain, just as the present
Parliament must be taken to legislate only for the United
Kingdom.^ But though the Parliament of the United King-
dom must prima fade be taken to legislate only for the
United Kingdom and not for the colonial Dominions of the
Crown, it is certainly within the power of Parliament to
make law for every part of Her Majesty's Dominions, and
this is done in express terms by the 29th section of the Act,
now in question. Its provisions appear to me to show clearly
that the privileges of authorship, which the Act was intended
to confer or regulate in respect to works first published in
the United Kingdom, were meant to extend to all subjects
of Her Majesty in whatever part of her dominions they might
be resident, including under the term ' subjects ' foreigners
resident there and so owing to her a temporary allegiance.
That Her Majesty's colonial subjects are by the statute de-
prived of rights they would otherwise have enjoyed is plain,
for the 15th section prohibits them from printing or pub-
lishing in the colony, whatever may be their own colonial
laws, any work in which there is a copyright in the United
Kingdom. It is reasonable to infer that the persons thus
restrained were intended to have the same privileges as to
works they might publish in the United Kingdom as authors
actually resident therein." — Per Lord Cranworth.

'" Our attention was called to a local law of Canada with
regard to copyright; but it was not contended that it would
prevent a native of Canada from acquiring an English copy-
right which would extend to Canada as well as to all other
parts of the British Dominions, although the requisitions of
the Canadian law had not been complied with. It is unneces-
sary to decide what would be the extent and effect of a copy-
right in ^"^ those colonies and possessions of the Crown which
have local laws upon the subject. But even if the Imperial
statute applies at all to such a case, I do not see how such
a copyright can extend beyond the local limits of the law
which creates it." — Per Lord Chelmsford.

® See ante, p. 69.

" " In " clearly means " under the laws of."

264 CANADIAN constitution: imperial limitations.

The question was afterwards litigated in Cana-
dian Courts/ and the view of Lord Cranworth
adopted, that the prohibition against printing or
publishing in a colony a work protected by British
copyright applies even to a colony having its own
Copyright Act. But it should be noted that as late
as 1905 the Supreme Court of Canada^ expressly
reserved the right to reconsider this decision, saying
that it was still open to discussion whether the Par-
liament of Canada might not be able to override
Imperial legislation on the subject of ' copyright '
passed prior to 1867.^*

The question is not now likely to arise — ^at leas-t,
as to copyright'*' — as the recent consolidating British
*^ Copyright Act, 1911,^'^ contains these careful pro-
visions as to the application of the Act to the self-
governing dominions :

Application to British Possessions.

35. (1) This Act, except such of the provisions thereof
as are expressly restricted to the United Kingdom, shall
extend throughout His Majesty's dominions: Provided
that it shall not extend to a self-governing dominion, unless
declared by the Legislature of that dominion to be in force
therein either without any modifications or additions or with
such modifications and additions relating exclusively to pro-
cedure and remedies, or necessary to adapt this Act to the
circumstances of the dominion, as may be enacted by such
Legislature.

(2) If the Secretary of State certifies by notice published
in the London Gazette that any self-governing dominion has
passed legislation under which works, the authors whereof
were at the date of the making of the works British subjects

^ Smiles v. Belford, 1 Ont. App. R. 436.

""Imp. Book Go. v. Black, 35 S. C. R. 488; affirming 8 Ont. L.
R. 9. The Privy Council refused leave to appoal.
^^ See ante, p. 63.
^ But see ante, p. 63.
'1 & 2 Geo. v., c. 46 (Imp.).

MISCELI^ANEOUS IMPERIAL STATUTES. 256

resident elsewhere than in the dominion or ,(not being British
subjects) were resident in the pants of His Majesty's do-
minions to which this act extends, enjoy within the dominion
rights substantially identical with those conferred by this
Act, then, whilst such legislation continues in force, the do-
minion shall, for the purposes of the rights conferred by this
Act, be treated as if it were a dominion to which this Act
extends; and it shall be lawful for the Secretary of State to
give such a certificate as aforesaid, notwithstanding that the
remedies for enforcing the rights, or the restrictions on the
importation of copies of works, manufactured in a foreign
country, under the law of the dominion, differ from those
under this Act.

26. (1) The Legislature of any self-governing dominion
may, at any time, repeal all or any of the enactments relating
to copyright passed by Parliament (including this Act) so
far as they are operative within that dominion; Provided
that no such repeal shall prejudicially affect any legal rights
existing at the time of the repeal, and that, on this Act or
any part thereof being so repealed by the Legislature of a
self-governing dominion, that dominion shall cease to be a
dominion to which this Act extends.

(2) In any self-governing dominion to which this Act
does not extend, the enactments repealed by this Act shall,
so far as they are operative in that dominion, continue in
force until repealed by the Legislature of that dominion.

(3) Where His Majesty in Council is satisfied that the
law of a self-governing dominion to which this Act does not
extend provides adequate protection within the dominion for
the works (whether published or unpublished) of authors
who at the time of the making of the work were British sub-
jects resident elsewhere than in that dominion, His Majesty
in Council may, for the purpose of giving reciprocal protec-
tion, direct that this Act, except such parts (if any) thereof
as may be specified in the Order, and subject to any condi-
tions contained therein, shall, within the parts of His
Majesty's dominions to which this Act extends, apply to
works the authors whereof were, at the time of the making
of the work, resident within the first-mentioned dominion,
and to works first published in that dominion; but, save as

256 CANADIAN constitution: IMPERIAL LIMITATIONS.

provided by such an Order, works the authors whereof were
resident in a dominion to which this Act does not extend shall
not, whether they are British subjects or not, be entitled to
any protection under this Act except such protection as is by
this Act conferred on works first published within the parts
of His Majesty's dominions to which this Act extends : —

Provided that no such Order shall confer any rights within
a self-governing dominion, but the Governor in Council of
any self-governing dominion, to which this Act extends, may,
by Order, confer within that dominion the like rights as His
Majesty in Council is, under the foregoing provisions of this
subnsection, authorised to confer within other parts of His
Majesty's dominions.

For the purposes of this sub-section, the expression "a
dominion to which this Act extends" includes a dominion
which is for the purpose of this Act to be treated as if it were
a dominion to which this Act extends.

27. The Legislature of any British possession to which
this Act extends may modify or add to any of the provisions
of this Act in its application to the possession, but, except
so far as such modifications and addition relate to procedure
and remedies, they shall apply only to works the authors
whereof were, at the time of the making of the work, resident
in the possession, and to works first published in the posses-
sion.

28. His Majesty may by Order in Council, extend this Act
to any territories under his protection and to Cyprus, and, on
the making of any such Order, this Act shall, subject to the
provisions of the Order, have effect as if the territories to
which it applies or Cyprus were part of His Majesty's do-
minions to which this Act extends. . . .

Pakt II. — Inteknational Copykight.

30. (1) An Order in Council under this Part of this
Act shall apply to all His Majesty's dominions to which this
Act extends except self-governing dominions and any other
possessions specified in the Order with respect to which it
appears to His Majesty expedient that the Order should not
apply.

MISCELM.NEOUS IMPERIAIy STATUTES. 257

(2) The Governor in Council of any self-governing
dominion to which this Act extends may, as respects that
dominion make the like orders as under this Part of this Act
His Majesty in Council is authorised to make with respect
to His Majesty^s dominions other than self-governing do-
minions, and the provisions of this Part of this Act shall,
with the necessary modifications, apply accordingly.

.(3) Where it appears to His Majesty expedient to except
from the provisions of any order any part of his dominions
not being a self-governing dominion, it shall be lawful for
His Majesty by the same or any other Order in Council to
declare that such order and this Part of this Act shall not,
and the same shall not, apply to such part, except so far as
is necessary for preventing any prejudice to any rights
acquired previously to the date of such Order.

35. (1) "Self-governing dominion" means the Do-
minion of Canada, the Commonwealth of Australia, the Do-
minion of New Zealand, the Union of South Africa, and
Newfoundland.

The Copyright ("Works of Art) Act, 1862,* does
not extend to the colonies.^

^' Colonial Boundaries Act, 1895.^^

Under this Act® power is given to the Crown
in Council (Imperial) to alter the boundaries of
British colonies ; but not without the consent of the
colony in the case of the self-governing colonies set
out in the schedule, Canada being one of those
named."^

*25 & 26 Vict. c. 68 (Br.).
^Graves v. Gorrie, 72 L. J. P. C. 95.
• 58 & 59 Vict. c. 34.

' See post, Chap. XVI., as to the alteration of boundaries by-
mere prerogative in the early days of colonial history.

CAN. CON. — 17

258 CANADIAN CONSTITUTION I IMPERIAL LIMITATIONS.

Demise of the Crown,

By the '' Demise of the Crown Act, 1901/''^ it is pro-
vided :

" 1. The holding of any office under the Crown whether
within or without His Majesty's dominions shall not be af-
fected, nor shall any fresh appointment thereon be rendered
necessary, by the demise of the Crown/'

Evidence: British, Foreign, and Colonial Law.

It may happen that in a case before a Canadian
Court, the law to be applied is the law written or
unwritten, of a foreign country, of some other Brit-
ish colony, or of the United Kingdom. Where the
law which governs is to be found in an Imperial
enactment extending to Canada, judicial notice must
be taken of such enactment ; but in the case of statu-
tory law of local application merely in the United
Kingdom that law, as in the case of foreign or other
colonial law, must be proved as fact. Apart from
Canadian legislation, both federal and provincial,
as to the mode of proof — a topic not within our
range here — there are several Imperial enactments
upon the subject which are or have been in force in
Canada.

A statute of George II.® provided an easy method
of proof by affidavit of debts sued for by British
merchants in the colonies and plantations in
America f but this was repealed by the Statute Law
Eevision Act, 1887 (Imp.).

Colonial enactments providing for admission of
the unsworn testimony of the heathen aborigines

'"1 Edw. VII., c. 5.

•5 Geo. II. c. 7 (Imp.).

^ See Gordon v. Fuller, referred to ante, p. 61.

MISCELLANEOUS IMPERIAL STATUTES. 259

were considered of doubtful validity as being ^' re-
pugnant to the law of England,'"'^ and an Imperial
statute was passed in 1843 to quiet such doubts/

By an Imperial Act of 1851, every document ad-
missible in England without proof of the seal, or
stamp, or signature authenticating it, or of the judi-
cial or official character of the person appearing to
have signed it, is to be admitted in evidence in the
same way in colonial Courts.^ The provision in the
Canada Evidence Act as to giving notice of inten-
tion to use certified copies of such documents was
held by the Supreme Court of the North-West Terri-
tories not repugnant to this Imperial Act.^

The Documentary Evidence Act, 1868,* provid-
ing for proof of Orders in Council and departmental
regulations, applies to all British colonies, but ^ * sub-
ject to any law that may be from time to time made
by the legislature of any British colony or posses-
sion. ' ^ One method of proof open in a colonial Court
is by production of a copy purporting to have been
printed under the authority of the colonial legisla-
ture. The practice of printing such orders and regu-
lations with the Dominion Statutes facilitates this
method of proof.

Under the Colonial Laws Validity Act, 1865,^ a
simple method of proof of a colonial statute is pro-
vided, viz., a copy of the Act certified by the proper
officer of the legislature enacting it; and this pro-
vision applies, it would seem, to proceedings in the
Courts not only of the United Kingdom but of all

^•^See ante, p. 57.

" 6 & 7 Vict. c. 22.

'14 & 15 Vict. c. 99, s. 11 (Imp.). The provisions of sec. 12
as to proof of registry of a British ship, are now to be found in
the Merchant Shipping Act, 1894.

'Stevens v. Olson (1904), 6 Terr. L. R. 106 (Full Ct.).

* 31 & 32 Vict. c. 37.

» 28 & 29 Vict. c. 63 (Imp.), sec. 6. See Appendix.

260 CANADIAN CONSTITUTION I IMPERIAL LIMITATIONS.

other British colonies. An Act of 1907 '^ provides
for proof in the United Kingdom of colonial statutes
by production of a copy purporting to be signed by
the King's Printer in the colony. The Act is not
to be taken as affecting the operation of the Colonial
Laws Vialidity Act, 1865.

Colonial law, statutory and common, is entitled
in cases where it applies to at least as full recogni-
tion as is accorded in British Courts to foreign law
on principles of international comity.^ In Admiralty
Courts, which are really Imperial tribunals, colonial
enactments are of binding authority in all cases to
which they apply and judicial recognition would be
accorded them ;^ just as judicial recognition is taken
by the Privy Council on colonial appeals.^

In 1859 an Imperial Act was passed ^^ to afford
better facilities for the more certain ascertainment
of the law administered in one part of Her Majesty's
dominions when pleaded in the Courts of another
part thereof. ' ' ® It provides for the transmission of
a settled case for the opinion of a Superior Court of
the colony the law of which is in question and for the
hearing of the parties by counsel in such Court.
Upon receipt of such opinion the Court which asked
for it is to apply it to the case before them. In the
event of an appeal to the Privy Council the Board
are not bound by the opinion so obtained and may
either adopt it or reject it ^^ as the same shall appear
to them to be well founded or not in law. ' ' In other
words, the Privy Council as the ultimate Imperial
Court of Appeal for the Empire must decide for it-,
self what the law is in any and all parts of the

»» 7 Edw. VII., c. 16.

'Phillips V. Eyre, L. R. 4 Q. B., at p. 241; R. v. Brierly, 14
Ont. R., at p. 534.

'Redpath v. Allen, L. R. 4 P. C. 511; 42 L. J. Adm., 8.
" Cameron v. Kyte, 3 Knapp P. C, at p. 345.
•22 & 23 Vict. c. 63 (Imp.). See Appendix.

MISCELIvANEOUS IMPERIAI, STATUTES. 261

Empire, taking judicial notice of that law both
statutory and unwritten.

In 1861, the principle of the statute just referred
to was applied for the better ascertainment of for-
eign law '* when pleaded in Courts within Her
Majes'ty^s dominions. '^^^ The procedure is along the
same lines as that of the earlier Act ; but there is a
clause providing for reciprocal action by British
Courts at the request of a foreign Court." The sta-
tute, however, only applies to those foreign countries
with which a convention has been entered into to
that end by the British Government.

** An Act to provide for taking evidence in Her
Majesty's dominions in relation to civil and commer-
cial matters pending before foreign tribunals ' ' ^ was
passed by the Imperial Parliament in 1856. Under
it an order may be made for the examination of a
witness or witnesses whose evidence may be desired
by a foreign tribunal before some person to be
named in the order ; and any such order may be en-
forced as if made in a cause depending in the Court
which made it. The statute, it will be noticed, does
not apply to criminal cases. ** Every Supreme
Court in any of Her Majesty's colonies or posses-
sions abroad ' ' has authority under this Act.^

In 1859, a somewhat similar Act was passed to
facilitate the taking of evidence in one part of the
Empire for use before a tribunal in some other
part.^

The Parliament of Canada has enacted legisla-
tion along similar lines * and its power in that regard

"24 Vict. c. 11 (Imp.). See Appendix.

M9 & 20 Vict. c. 113 (Imp.). See Appendix.

'See Eccles v. Louisville, dc, Ry. Go. (1912), 1 K. B. 135; 81
L. J. K. B. 445, where the principles upon which British Courts
should act under this statute are discussed.

»22 Vict. c. 20 (Imp.). See Appendix.

*See R. S. C. (1906), c. 145.

262 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

has been upheld in Ontario.^ The view was ex-
pressed that provincial legislatures could not enact
such laws as being of extra-provincial pertinence;
but in a recent case in Manitoba this view was not
adopted, and an Act of the legislature of that prov-
ince providing for the taking of evidence there for
use in another province was upheld as within provin-
cial competence.*' In neither of these cases was the
Imperial Act discussed, though it would appear
sufficient to uphold the proceedings in each of them.

Floating Derelicts.

The Derelict Vessels (Report) Act, 1896, requires
the master or person in command of any British
ship who shall become aware of the existence on the
high seas of any floating derelict vessel to notify
Lloyd ^s agent at the next port of call or, if there be
no agent at such port, to send a report to the Secre-
tary of Lloyd ^s, London ; under penalty not exceed-
ing five pounds.

Geneva or Red Cross.

The Geneva Convention Act, 1911,^* prohibits the
use of the Red or Geneva Cross for trade or other
commercial purposes, under penalty. It extends to
'' His Majesty's possessions outside the United
Kingdom, subject to such necessary adaptations as
may be made by order-in-council.

J ?

^Re Wetherell & Jones, 4 Ont. R. 713.

•Jee Alderta d Great Waterways Ry. Co. (1910), 20 Man. L.
R. 697; agreeing with the view expressed in the 2nd ed. of this
book, p. 182. See also Ex p. Smith, L. C. Jur. 140; 2 Cart. 330.

^59-60 Vict. c. 12 (Imp.).

'" t & 2 Geo. v., c. 20.

MISCELI^ANEOUS IMPERIAI, STATUTES. 263

Marriage, '^ The Foreign Marriage Act, 1892.''

For obvious reasons, the Royal Marriage Act of
George III.^ applies to all marriages wheresoever
solemnized f while the Act forbidding marriage with
a deceased wife 's sister ^^ was confined in its opera-
tion to persons domiciled in the United Kingdom
and was held not to apply to a foreign or colonial
marriage of persons not domiciled in England.^ In
an early Canadian case it was expressly held not to
be in force in Canada as ^ * the colonies are not men-
tioned in the Act nor included by any necessary or
even strong intendment. ' '^ An Act of 1906^^ passed
for removing doubts makes such colonial marriages
valid in the United Kingdom where both parties
were domiciled in the colony. And in 1907,^^ the
** Deceased Wife's Sister Act "makes valid all such
marriages ^ ^ heretofore or hereafter contracted . . .
within the realm or without. ' '

Beginning in 1823, there are a series of British
statutes passed with the view of validating mar-
riages of British subjects solemnized abroad by con-
sular and naval and military officers or army chap-
lains according to English forms and not in conform-
ity with the lex loci celebrationis, which in interna-
tional law as adopted by the municipal law of Eng-
land is the law upon which, speaking generally, the
validity of a marriage depends.^ Extended treat-
ment of this topic is not to be expected here ; but it

•12 Geo. III. c. 11 (Imp.).

'Sussex Peerage Case (1844), 11 Ch. & F. 146.

"5 & 6 Wm. IV. c. 54 (Br.), commonly called Lord Lynd-
hurst's Act.

^ Brook V. Brook, 9 H. L. Cas. 193.

'Hodgins v. McNeil, 9 Grant 305 (U.C.).

=" 6 Edw. VII., c. 30.

="7 Edw. VII., c. 47 (Imp.).

' 4 Geo. IV. c. 91; 12 & 13 Vict. c. 68. (The Consular Marriage
Act, 1849); 31 & 32 Vict. c. 61 (The Consular Marriage Act,

264 CANADIAN CONSTITUTION : IMPEKIAL LIMITATIONS.

may be remarked that the question as to the opera-
tion of these statute's in the colonies and as to British
subjects there presents at least three aspects : First,
to what extent are such marriages to be held valid
in colonial Courts 1 Second, to what extent did those
Acts, and does now the Act of 1892, cover marriages
celebrated in a colony? and Third, what is the posi-
tion of a colonially naturalized British subject in
reference to taking the benefit of the Act ? This last
question has already been dealt with.* The second
question seems to present no difficulty as the only
marriages which under the Act could take place in a
colony would be marriages on board ship in a colon-
ial port or marriages within the lines of the army,
and these are expressly dealt with by the Act itself,
which is in this respect clearly an Imperial enact-
ment. As to the first question, the proper answer
would seem to be that such marriages would be held
valid everywhere within British dominions, at least.
They are based on a, fiction of extended territoriality ;
and are considered as really made in British terri-
tory.^ The Acts prior to 1890 provide that such mar-
riages are to be ^^ valid in law as if the same had been
solemnized within (His) Majesty's dominions with
a due observance of all forms required by law. ' ' In
the Acts of 1890, 1891, and 1892 the expression is
'* within the United Kingdom.'' Beading all the
Acts as in pari materia, however, and in the light of
the fictional idea underlying them all, the intent
would seem to be of Imperial scope.

1868); 53 & 54 Vict. c. 47 (The Marriage Act, 1890); 54 & 55
Vict. c. 74 (The Foreign Marriage Act, 1891); and a Consolidat-
ing Act, 55 & 56 Viot. c. 23 (The Foreign Marriage Act, 1892).
See also 2 & 3 GTeo. V., c. 15 (as to marriages in Japan) ; also
6 Edw. VII., c. 40.

* Ante, p. 186.

''See Dicey, Conflict of Laws (1896), c. 26, where the whole
subject is discussed. See also Hall, Foreign Jurisdiction of the
British Crown.

MISCELIvANEOUS IMPERIAI, STATUTES. 265

Doubts having arisen as to the extra-territorial
operation of colonial Acts validating marriages con-
tracted in the colonies respectively, an Imperial Act
of 1865 « provides : _

" Every law made or to be made by the legislature of any
such possession as aforesaid for the purpose of establishing
the validity of any marriage or marriages contracted in such
possession shall have and be deemed to have had from the
date of the making of such law the same force and effect for
the purpose aforesaid within all parts of Her Majesty's do-
minions as such law may have had or may hereafter have
within the possession for which the law was made:

Provided that nothing in this law contained shall give
any effect or validity to any marriage unless at the time of
such marriage both of the parties thereto were, according to
the law of England, competent to contract the same."

Whether such a validating Act should in Canada
be passed by the Parliament of Canada or by a pro-
vincial legislature may be a question of difficulty."^

Medical Practitioners,

Under the earlier British Medical Acts practi-
tioners registered under those Acts were entitled to
practice their profession in the colonies;^ but since
1886 British registration while conferring the right
to practice in the colonies ® does so '* subject to any
local law. * ' ^° ^ ^ Local law ' ' is defined as ^ ^ an Act
or ordinance passed by the legislature of any British
possession ;'' and British possession as applied to

•28 & 29 Vict. c. 64 (Imp.).
^ See post, p. 556, et seq.

*Metherell v. Coll. of Phys. (1892), 2 B. C. 189; R. v. Coll. of
Phys. (1879), 44 U. C. Q. B. 564.
'See 49 & 50 Vict. c. 48 (Imp.).
•° Section 6.

266 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

Canada means Canada as one whole.^ Apparently,
therefore, only an Act of the Parliament of Canada
can make the ^ local law ' necessary to limit the full
effect of registration under the British Act. The
same provision appears in the Act as to dentists.^
There are also provisions in the Act for the registra-
tion of colonial practitioners upon conditions de-
signed to secure reciprocal advantages for British
practitioners in the colonies.^

Official Secrets.
The Official Secrets Act, 1911,^* is designed to
prevent the betrayal of government plans and pur-
poses. It applies to all acts which offend against
its provisions when committed in any part of His
Majesty's dominions or by British officers or sub-
jects elsewhere. Any competent British Court in
the place where the offence is alleged to have been
committed may hear and dietermine the charge ; but
out of the United Kingdom the Court must be one
having jurisdiction ^^ to try crimes which involve
the greatest punishment allowed by law. ' '

Pacific Cable.
The ^^ Pacific Cable Act, 1901,''^^ made provi-
sion for the construction and working of a submarine
cable between Canada and the Australasian colonies
(via Norfolk Island)' at the joint expense of Great
Britain and the colonies named. To that end the
Pacific Cable Board was constituted, each of the
contributing governments being represented on the
Board. An amendment of 1911 ^'^ provides for
branches to other points in the Pacific.

'Section 27. "

'Section 26.

' Section 11, et seq.

"" 1 & 2 Geo. v., c. 28.

'^1 Edw. VII., c. 31.

"n & 2 Geo. v., c. 36; see also 2 Edw. VII., c. 26, which sub-
stitutes the Commonwealth of Australia for the former individual
colonies of New South Wales, Victoria, and Queensland.

MISCELLANEOUS IMPERIAL STATUTES. 267

Privy Council Appeals,

There are a series of statutes dealing with
the Judicial Committee of the Privy Council and
its composition and the procedure on appeals
from colonial Courts;* but it is deemed advis-
able to deal in one place with the Canadian ju-
dicial system of the administration of justice in and
for Canada and its various provinces.*^ The question
how far, if at all, a colonial legislature may take
way the right of appeal to the Crown in Council (Im-
perial) has already been dealt with.®

Prize Courts Act, 1894.

Under this Act,^ Prize Courts may be estab-
lished in any British possession in time of peace
by warrant, commission or instructions from the
Crown or the Admiralty conditioned to take opera-
tive effect only on the breaking out of hostilities.
Jurisdiction to act as a Prize Court may be con-
ferred under this Act upon a Vice-Admiralty Court
or a Colonial Court of Admiralty or a Vice-Admi-
ralty Court may be established for that purpose.
In Canada, the jurisdiction has been conferred on
the Exchequer Court as a Colonial Court of Admi-
ralty^ and the proceedings to that end are published
in the 6th volume of the Exchequer Court Eeports,
p. 468 et seq.

*3 & 4 Wm. IV. c. 41; 7 & 8 Vict. c. 69; 39 & 40 Vict. c. 59;
44 & 45 Vict. c. 3; 50 & 51 Vict. c. 70; 58 & 59 Vict. c. 44; 8 Edw.
VII., c. 51; 3 & 4 Geo. V., c. 16.

" See post.

'^ Ante, p. 157, et seq.

^57 & 58 Vict. c. 39 (Imp.).

*See ante, p. 239.

268 CANADIAN constitution: imperial limitations.

Probate, '' Colonial Probates Act, 1892.''

This is really a purely British Act^ providing for
the recognition in the United Kingdom of Probates
and Letters of Administration granted by Colonial
Courts, upon a reciprocal basis. The Canadian
provinces are for the purposes of this statute to be
treated as separate British possessions, contrary to
the rule of interpretation generally applied to Im-
perial Acts since 1889.^"

Seal Fisheries of the North Pacific.

The controversy between Great Britain and the
United States as to Behring Sea and the seal fishing
there and in the adjoining waters of the North Pa-
cific resulted in the making of the Behring Sea
Award of 15th August, 1893. To carry out the provi-
sions of this Award, the Imperial Parliament passed
the Behring Sea Award Act, 1894,^ under which the
Exchequer Court of Canada as a Colonial Court of
Admiralty^ has jurisdiction to punish those who,
whether on British or United States ships, contra-
\^ene the articles of the award as confirmed by the
Act. In addition to this special Act, there have been
several Acts passed by the Imperial Parliament,
regulating the seal fisheries of the North Pacific;^
but these apply only to British ships and their crews.
The Act now in force is the Seal Fisheries (North
Pacific) Act, 1895, as amended in 1912. It applies
to that part of the Pacific Ocean north of the 30th
parallel of north latitude, including the seas of

•55 & 56 Vict. c. 6 (Br.).
" See ante, p. 238.
' 57 & 58 Vict. c. 2.
^ See ante, p. 239.

'54 & 55 Vict. c. 19; 55 & 56 Vict. c. 23; 58 & 59 Vict. c. 21;
2 & 3 Geo. v., 0. 10.

MISCELI^ANEOUS IMPEKIAIv STATUTES. 269

Behring, Kamcliatka, Okhotsk, and Japan; and is
in addition to and not in derogation of the Behring
Sea Award Act, 1894. This latter Act forbids
altogether the killing of seals within 60 miles of
the Pribiloff Islands, a well-known breeding haunt
for seals, and establishes a close season from
May 1st to July 31st in each year for Behring
Sea and that part of the Pacific north of the 35th
degree of north latitude and east of the Eussian
boundary line as agreed upon between Russia and
the United States at the time of the Alaska pur-
chase; and also makes regulations for the carrying
on of the industry during the open season. Both
Acts embody many provisions of the Imperial Mer-
chant Shipping Acts of 1854 and 1894 and under
both Acts, the Exchequer Court of Canada (in Ad-
miralty) has complete jurisdiction to decree forfeit-
ure or to fine for contravention of the Acts. Ships
registered in Canada, it is hardly necessary to state,
are British ships.* Further details as to these Acts
must be sought for in the Acts themselves.'^

'' Colonial Solicitors' Act, 1900/'

This, again, is a purely British Act ^ facilitating
the admission of colonial solicitors to practice in the
United Kingdom under certain conditions, looking

* See ante, pp. 215, 231.

•Reference may perhaps usefully be made to the following
cases in the Exch. Ct. Reports : R. v. Ship " Oscar & Hattie "
(1892), 3 E. C. R. 241; R. v. Ship "Minnie" (1894), 4 E. C. R.
151; R. V. Ship "Ainofco" (1894), 4 E. C. R. 195; R. v. Ship
*'E. B. Marvin" (1895), 4 E. C. R. 453; R. v. Ship " Selby "
(1895), 5 E. C. R. 1; R. v. Ship ''Beatrice" (1896), 5 E. C. R. 9,
160, 378; R. v. Ship ''Viva" (1896), 5 E. C. R. 360; R. v. Ship
"Ainoko" (1896), 5 E. C. R. 366; R. v. Ship "Aurora" (1896),.
5 E. C. R. 372; R. v. Ship "Otto" (1898), 6 E. C. R. 188; R. v.
Ship "Carlotta O. Cox" (1908), 11 E. C. R. 312.

•63 & 64 Vict. c. 14 (Br.). It repeals earlier Acts on the
subject.

270 CANADIAN constitution: imperial limitations.

to reciprocity amongst other things. For the pur-
poses of this Act the Canadian provinces are to be
treated as individual British possessions, contrary,
as above intimated, to the general rule of interpre-
tation to be applied to British statutes since 1889.

Colonial Stock Acts.

These Acts ^ are really purely British Acts,
passed in order to facilitate dealings in the
United Kingdom in stock ^' forming part of
the public debt of any colony; '^ and they
therefore call for little comment here. For the pur-
pose of these Acts the Canadian provinces are colon-
ies and their legislatures colonial legislatures; con-
trary to the general rule now applied in the interpre-
tation of Imperial statutes under the Interpretation
Act, 1889 f and contrary also to the rule of interpre-
tation to be ordinarily applied in England to the
word ^ colony ' in a will or other written document.
The Act of 1900 for the first time made Colonial
Stock to which these Acts apply a proper trustees'
investment, but provincial stock was held to be an
improper investment under a will of a person who
died prior to 1900, and who by his will authorizes the
trustees named therein to invest in the stock of
' ^ any British colony or dependency. ' ' These words
were held not to cover the individual provinces of
Canada.^

But, as already intimated, these Acts are not
really Imperial Acts extending to Canada, so as, for
instance, to authorize colonial trustees to invest in
such securities unless duly authorized so to do by
colonial law.

MO & 41 Vict. c. 59; 55 & 56 Vict. c. 35; 63 & 64 Vict. c. 62;
to be read together and cited as the " Colonial Stock Acts, 1877
to 1900."

•52 & 53 Vict. c. 63 (Imp.), sec. 18 (3).

•In re Maryon-Wilson Estate (1912), 1 Ch. 55; 81 L. J. Ch. 73
(C.A.).

CHAPTER XIV.

English Law Introduction.

^ So far this book has dealt with Imperial Acts
appljang^ expressly or by necessary intendment to
the colonies ; and it has been sliowh~t¥at a statute of
this class is in force in a colony propria vigore as an
enactment of the Supreme Legislature of the Em-
pire ; that it cannot be repealed or amended by colon-
ial legislation, except under permissive Imperial en-
actment; and that any colonial Act in any way re-
pugnant to it is to the extent of such repugnancy,
but not otherwise, absolutely void and inoperative.
In other words, such an Imperial Act is both a law in
the colony and a limitation upon its legislative

i^ower. But there is another class of British sta-
tutes ^ which, like the unwritten law of England, may
be part of the law of the colony. As part of the law
of England they have been carried to the colony by
its first settlers, or by the action of the home author-
ities or by colonial adoption have been established as
the basic law of the colony. British statutes of this
class are necessarily of date anterior to the intro-
duction of English law into the colony. They are in
force there only by colonial sufferance, for the legis-
lature of the colony may repeal of amend them, so
far as relates to their operation in the colony, either
directly or by repugnant legislation. In other
words, they may be a law in the colony but they are
not a limitation upon the colony's legislative power.
When passed, they had not the colonies in contem-
plation, but were intended to alter or amend the law
of England. And the question is : to what extent is

^It will be convenient to call these statutes Britisti, though
the term is not always strictly accurate. See ante, p. 55, note.

272 CANADIAN constitution: imperial limitations.

the common and statute law of England in force as
the basic law of the colony upon or after its acqui-
sition?

"A question of this kind/' said Chief Justice Eobinson/
" arising in any British colony must depend upon the manner
in which the law of England has become the law of that
particular colony ; whether it has been merely assumed to be
in force upon common law principles, as, in the case of new
and uninhabited lands found and planted by British subjects ;
or whether it has been introduced by some positive enactment
of the Mother Country, or of the colony, or (as may be done
in the case of a conquered country) imposed by the mere Act '
or regulation of the King in the exercise of his royal pre-
rogative."

Many of the British statutes in times past held to
be in force here are not now operative in Canada,
the subjects with which they deal having received
attention at the hands of Canadian legislatures. It I
is only in the absence of Canadian legislation on the ^
subject that any question can arise as to the effect \
here of such British Act.^

A brief review of the authorities is attempted in
order to arrive at the principles upon which they
rest and not in order to indicate what particular
British Acts are to-day in force in the different
Canadian provinces.*

English Cases: —

In 1889, the Privy Council had occasion to con-
sider how far the rule of the common law of Eng-
land against perpetuities had been introduced '^ by

'Doe d. Anderson v. Todd (1845), 2 U. C. Q. B. 82.

^Falkland Islands Co. v. R., 2 Moo. P. C. (N.S.), 206; Harris
V. Davis, L. R. 10 App. Cas. 259; 54 L. J. P. C. 15; etc., etc.

* In Appendix will be found a table of the British statutes as
to which question has been raised in the Courts.

ENGLISH LAW INTRODUCTION. 273

the silent operation of constitutional principles ''
into New Sonth Wales.'^

" The extent/^ said Lord Watson in delivering their
Lordships' judgment, " to which English law is introduced
into a British colony, and the manner of its introduction,
must necessarily vary according to circumstances. There is
a great difference between the case of a colony acquired by
conquest or cession, in which there is an established system
of law, and that of a colony which consisted of a tract of
territory practically unoccupied, without settled inhabitants
or settled law, at the time wlien it was peacefully annexed to
the British dominions. The colony of New South Wales
belongs to the latter class. In the case of such a colony, the
Crown may by ordinance, and the Imperial Parliament or its
own legislature when it comes to possess one may by statute,
declare what parts of the common and statute law of England
shall have effect within its limits. But when that is not done
the law of England must, subject to well established excep-
tions, become from the outset the law of the colony ^ and be
administered by its tribunals. In so far as it is reasonably
applicable to the circumstances of the colony the law of
England must prevail until it is abrogated or modified either
by ordinance or statute. The oft-quoted observations of Sir
William Blackstone appear to their Lordships to have a direct
bearing upon the present case. He says : ^ 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 birthright of every subject, 'are immediately there in
force.'^ But this must be understood with very many and
very great restrictions. Such colonists carry with them only
so much of the English law as is applicable to the condition
of an infant colony; such, for instance, as the general rules
of inheritance and protection from personal injuries. The

"Cooper V. Stuart (1889), 58 L. J. P. C. 93.

"Begbie, C.J., with quaint humor, says {Reynolds v. Vaughan,
1 B. C. pt. 1, p. 3): "An Englishman going to found a colony
may be supposed to know the common law by common sense,
and to carry the statutes (in the form of Chitty) in his hands."

U Salk. 411, 666.

CAN. CON. — 18

274 CANADIAN^ CONSTITUTION : IMPERIAL LIMITATIONS.

artificial requirements aii,d distinctions incidental to the
property of a great and commercial people, the laws of police
and revenue (such especially as are enforced by penalty), the
mode of maintenance of the established church, the jurisdic-
tion of spiritual Courts, and a multitude of other provisions,
are neither necessary or convenient for them, and therefore
are not in force. What shall be admitted and what rejected,
at what times and under what restrictions, must in case of
dispute be decided in the first instance by their own pro-
vincial judicature subject to the decision and control of the
King in Council; the whole of their Constitution being also
liable to be remodelled and reformed by the general superin-
tending power of the legislature in the Mother Country.'

" Blackstone, in that passage, was setting right an opinion
attributed to Lord Holt, that all laws in force in England
must apply to an infant colony of that kind. If the learned
author had written at a later date he would probably have
added that as the population, wealth, and commerce of the
colony increase, many rules and principles of English law
which were unsuitable to its infancy will gradually be at-
tracted to it; and that the power of remodelling its laws
belongs also to the colonial legislature." ^

Applying these principles their Lordships held
that the English rule against perpetuities could not
be invoked in New South Wales to hamper the
Crown in its dealings with the public lands of the
colony; and a clause in a Crown grant reserving to
the Crown the right to resume at any time posses-
sion of part of the land if found necessary for pub-
lic purposes was held valid.

As the above extract indicates, the English auth-
orities turn upon the question of reasonable applica-
bility. In one of the earliest cases® Sir William
Grant held that the Statute of Mortmain^" (so

•See also the language of Lord Alverstone in R. v. Jameson
(1896), 2 Q. B. 425; 65 L. J. M. C. 218.
^ Atty.-Oen. v. Stewart, 2 Mer. 143.
'»9 G€0. II. c. 36 (Imp.).

ENGLISH LAW INTRODUCTION. 275

called) was not part of the law of Grenada, being *^ a
law of local policy adapted solely to the country in
which it was made," and not a general regulation
of property equally applicable to any country gov-
erned by English law. In a later case ^ the House of
Lords approved of the principle thus laid down, and
subsequent English authorities are but applications
of it.^ One notable case decided that the ecclesiasti-
cal law of England is not carried with them by emi-
grating colonists, and that, after the establishment
of a constitutional government in a colony, the
Crown cannot by patent create a bishopric with co-
ercive jurisdiction. '' The Church of England in
places where there is no church established by law
is in the same situation with any other religious
body.''^ The extent to which English law, common
and statutory, is to be applied in New South Wales
was declared by Imperial statute,* but the construc-
tion put upon the Act has placed that colony in line
with other settled colonies.^ The Act further pro-
vided that the colonial assembly ^^ as often as any
doubt shall arise '' might declare whether or not a
particular law or statute should be deemed to ex-
tend to the colony, and might make such ^^ limita-
tions and modifications ' ' of any such laws and sta-
tutes as might be deemed expedient. In the absence
of such colonial legislation the Courts, of the colony

^Whicker Y. Hume, 7 H. L. Cas. 124; 28 L. J. Chy. 396.

'Jex V. McKinney, 14 App. Cas. 77; 58 L. J. P. C. 67; Mayor
of Canterbury v. Wyhurn (1895), A. C. 89; 64 L. J. P. C. 36;
Atty.-Gen. (N.S.W.) v. Love (1898), A. C. 679; 67 L. J. P. C. 84;
Neo V. Neo, L. R. 6 P. C. 382.

'In re Bishop of Natal, 3 Mao. P. C. (N.S.), 115. There is a
series of cases relating to the position of the Anglican Church in
South Africa: see Merriman v. WilUams (1882), 7 App. Cas. 484;
51 L. J. P. C. 95. See also Bishop of ColumUa v. Cringe, 1 B. C.
(part 1), 25.

*9 Geo. IV. c. 83 (Imp.).

" Whicker v. Hume .and Atty.-Gen v. Love, both ubi supra.

276 CANADIAN constitution: impeeial limitations.

were to decide as to the operation of any such
laws or statutes within the colony. It was held by
the Privy Council ^ that the colonial legislature had
power under this Act to repeal, and by inconsistent
legislation had repealed, a statute of James I. con-
cerning costs in actions for slander. No direct
power of repeal, it will be noted, was given by the
Act; but whether the repeal is direct or by repug-
nant legislation is a mere question of words.

Canadian Cases: —

The Canadian cases upon this subject are numer- -
ous, and owing to some divergence of view, must be
considered, so to speak, by provinces. And this
broad distinction is to he noted : that in the Maritime
Provinces^Nova Scotia, New Brunswick and Prince
Edward Island — there is no statute, imperial or col-
onial, defining the extent to which English law was
introduced into those provinces upon their acquisi-
tion; while in all the other Canadian provinces and
territories there is express statutory provision
upon the subject. In other words, in the Maritime
Provinces the matter is ait large, while elsewhere I /
in Canada the question depends at the outset upon
the words of the statutes respectively in force in
the different provinces and the territories.

The Maritime Provinces have always been
treated as colonies by settlement as distinguished
from colonies obtained by conquest or cession, and
the question of applicability has been to the front in
all the cases. In Nova Scotia one decision ^ may be
considered classic upon this question and subsequent
decisions there have practically been but the applica-
tion of the principles enunciated in it.

'Harris v. Davis (1885), 10 App. Cas. 259; 54 L. J. P. C. 15.

^ Uniacke v. Dickson, James, 287. Haliburton, C.J., who then
presided over the Court, had occupied a seat on the bench of
Nova Scotia for over forty years.

ENGLISH LAW INTRODUCTION. 277

Nova Scotia : —

Two extracts from the judgment of Haliburton,
C.J., will indicate the considerations deemed essenr
tial in the Nova Scotia cases :

"Among the colonists themselves there has generally
existed a strong disposition to draw a distinction between the
common and the statute law. As a code, they have been dis-
posed to ado.pt_ihe__whoJe of the former, 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 necessary 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 noth-
ing very precise, yet, if we adopt it, and I think it wise and
safe to do so, we must hold it to be quite clear that an Eng-
lish statute is applicable and necessary for us before we
decide that it is in force here."

" In the early settlement of a colony, when the local
legislature has just been called into existence and has its
attention engrossed 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
th%Q they would be entitled to do as their local legislature in
the gradual development of its powers assumed its proper
position. Every year should render the Courts more cautious
in the adoption of laws that had never been previously intro-
duced into the colony, for prudent Judges would remember
that it is the province of the Courts to declare what is the
law, and of the legislature to decide what it shall be."

Acts in curtailment of prerogative have been
favorably looked on by Nova Scotia Judges. Magna

278 CANADIAN CONSTITUTION : IMPERIAL LIMITATIONS.

Charta and the second and third charters of Henry
III. were held ^ operative within the province to
prevent the Crown from granting a general right of
fishery. Again it was held^ that where land had
been granted with a condition that the grant should
be void if the land were not settled upon within a
certain time^ no new grant could be made without a
previous retaking of possession by the Crown; the
provisions of certain statutes of Henry VIII. being
held operative within the province to prevent such
new grant from taking effect.

" The very grievances intended to be remedied and re-
dressed by this statute are those under which the subjects of
this province might well say they labored if it were held that
land, granted with a condition that the grant should be void
if the land were not settled on within a certain time, could
be subsequently granted without inquest of office." ^"

The view expressed by Haliburton, C.J., ^ that
after a legislature has been duly constituted in a
colony, and has, so to speak, settled down to its
work. Courts of law should be very cautious in giv- k
ing effect to British Acts which had never been pre- ' ^
viously acted upon in the colony, has evidently had
a most powerful effect in subsequent cases. For in-
stance, the Court refused to visit upon the sheriff of
Halifax penalties to which he would have been liable
under English statutes, because the Nova Scotia
legislature had ^' wisely legislated for the whole
matter."^

« Meisner v. Fanning, 2 Thomp. 97. And see Re B. C. Fisheries
(19-13), 47 S. C. R. 493; (1914), A. C. 153, 83 L. J. P. C. 169.

*Wheelock v. McKeown, 1 Thomp. 41 (2nd ed.); and see also
Miller v. Lanty, if)., 161.

" Followed in Scott v. Henderson, 2 Thomp. 115 ; and cf. Smyth
V. McDonald, 1 Old. 274; but see Emerson v. Maddison (1906), A.
C. 569; 75 L. J. P. C. 109.

^In Vniacke v. Dickson; see the passage, ante, p. 277.

* Jackson v. Camphell, 1 Thomp. 18 (2nd ed.).

ENGLISH LAW INTRODUCTION. 279

And, in like manner, the Imperial statutes giving
aliens a right to a jury de mediatate linguae were
held ^ not to be in force in Nova Scotia because :

''In the numerous Jury Acts, extending from 1759 . . .
down to the Revised Statutes (2nd ser.), not the slightest
allusion nor provision for this privilege of aliens ... is
to be found."

In another case the Supreme Court of Nova
Scotia had to consider the question whether or not
the British statute (12 Geo. II. c. 18) requiring no-
tice to a convicting justice of a motion for a writ of
certiorari, and limiting the time for moving for
such writ to six months from conviction, was in force
in the province. After quoting the caution of Hali-
burton, C.J., above referred to, the judgment pro-
ceeds :

" If this caution was necessary forty years ago, there is
much more necessity for caution now in view of the fact that
since then very many Acts have been passed regulating the
practice and procedure of this Court, and the removal of
causes from inferior Courts. . . . Now, our legislature has
passed several statutes on the subject. ... I cannot see
that 13 Geo. II. c. 18, is obviously applicable and necessary
to our condition in this province; and as our legislature has
undertaken to legislate in the matter of certiorari, and has
enacted many of the provisions of the English statutes on
that subject, omitting those contained in the Act in question,
I have been unable to come to the conclusion that that Act
is at present in force here."*

A number of British Acts havfe been acted upon
without question as introduced into Nova Scotia

^Reg. V. Burden, 1 Old. 126; and see Nolan v. McAdam (1906),
39 N. S. 380.

*Reg. v. Porter, 20 N. S. R. Reference is made to the fact
that in Upper Canada it had been always treated as in force
there. It appears to have been acted on in Nova Scotia in earlier
cases. See Reg. v. McFadden, 6 R. & G. 426, and McDonald v.
Ronan, 7 R. & G. 25. As to New Brunswick, see post, pp. 282-3,
note.

280 CANADIAN constitution: imperiai, limitations.

upon its settlement. The Statute of Uses was treated^
as being in force within the province, while its com-
panion— the Statute of Enrolment — ^wonld appear to
have been thought ^ inapplicable by reason of the
lack of facilities for enrolment. The British Acts of
Hen. VIII. allowing partition between joint tenants
and tenants in common and the Act of Queen Anne 's
reign giving an action of account to one tenant in
common against another were held ^ to have been
introduced into Nova Scotia as part of the English
law. The provisions of Magna Charta, and of the
Statute of S'taples, which provided that * * In case of
war, merchant strangers shall have free liberty to
depart ithe realm with their goods freely,'^ were
enforced ^ in favor of an American vessel, seized
before the commencement of the American war of
1812. The Act of Eliz. respecting fraudulent con-
veyances seems to have been acted upon without
question,^ as also the Act of Henry VIII. against the
buying of pretended titles.^*^

Upon a review of the Nova Scotia decisions, it
appears that the admission of British statutes has
been the exception ; those which have been held to be
in force being, in the main, statutes in amelioration
of the rigors of the common law, in curtailment
of prerogative, or in enlargement of the liberty of
the subject. To a greater extent than has been the
case in either New Brunswick or Ontario, the Judges

^ STiey V. CMsholm, James, 52.

"Berry v. Berry, 4 R. & G. 66; see the contrary holding in
New Brunswick, Doe d. Hanington v. McFadden, Berton, 153.

'' Doane v. McKenny, J'ames, 328; Crane v. Blackadar (1895),
40 N. S. 100.

*The Dart, Stewart.

•Tarratt v. Sawyer, 1 Thomp. 46 (2nd ed.) ; Moore v. Moore,
1 R. & G. 525; and Graham v. Bell, 5 R. & G. 90.

^"Wheelock v. Morrison, 1 N. S. D. 337; Scott v. Henderson, 2
Thomp. 115.

ENGLISH LAW INTRODUCTION. ?81

of Nova Scotia have deemed it the office of legisla-
tion rather than of judicial decision to bring into
operation within the province the provisions of Bri-
tish statutes not originally capable of being made
operative, but which might be thought suitable to the
changed circumstances of the colony/^^ And in the
same spirit it was laid down ^ that where an English
Act is held to be in force the Courts/* will not give
it a further extension than it received in the land of
its origin. '^ The operation of an English statute
might be confined within narrower bounds by the
circumstances and situation of the colony; but it
could never become a statute of greater effect or
more enlarged construction. ** This is the office of
legislation alone/*

New Brunswick : —

In New Brunswick an early case,^ in which the
Supreme Court of that province had to consider
whether the Statute of Uses and its companion — the
Statute of Enrolment — ^were or were not in force in
the province, has had a very large controlling influ-
ence. Chipman, C.J., quotes with approval the
language of Sir. W. Grant,^ and takes as his guide
the principle enunciated in that case. As to the Sta-
tute of Uses no doubt whatever was expressed ; the
fact that it had been generally, if not universally,
considered to be in force in the old American colon-
ies was treated as indicative of the general under-
standing that the statute was carried by emigrating
colonists as part of the law of England relating to
real property. As to the Statute of Enrolment more

"' On this point, see the judgment of Lord Watson in Cooper
V. Stuart, quoted ante, p. 274.

* Freeman v. Morton, 2 Thomp. 352, per Bliss, J.
*Doe dem. Hanington v. MeFadden, Berton, 153.
^ Atty.-Gen. v. Stewart, 2 Mer. 143; see ante, p. 274.

282 CANADIAN constitution: impekiai, limitations.

hesitation seems to have been expressed ; but all the
Judges concurred in treating the two statutes as
practically one. Although the Statute of Enrolment
might be somewhat difficult of application in New
Brunswick, it seems to have been considered that
the machinery of the provincial Courts could be uti-
lized in this respect. The extension to the province
of statutes which are in terms confined to the Courts
of the Mother Country is not by any means without
precedent. Several of such statutes, regulative of
the practice in '^ Her Majesty ^s Courts at West-
minster,'' have always been treated as operative
within the province in relation to the Superior
Courts there.*

Although it is difficult to classify the New Bruns-
wick authorities upon this question, in every case the
Judges of the Courts there have exercised their best
judgment as >to the applicability of the British Sta-
tute to the circumstances of the colony. If any dis-
tinction in principle can be drawn between the deci-
sions in New Brunswick and those in Nova Scotia,
it would appear to be this : that British statutes have
been denied operative force in Nova Scotia unless
clearly applicable, while in New Brunswick the tend-
ency, at least of earlier authorities, seems to have
been not to reject them unless clearly inapplicable.'^
At the same time it must be confessed that this dis-
tinction cannot be clearly pointed out in every case.'

*Anne c. 16 (assignment of bail-bonds); 14 G€o. II. c. 17
(judgment of nonsuit) ; and see Kelly v. Jones, 2 Allen, 473 (43
Dliz. c. 6 — certificate as to costs), and GWbert v. Sayre, id., 512
(13 Car. II. c. 2 — double costs on affirmance in error). See
Hesketh v. Ward, 17 U. C. C. P. 667; also the cases noted post,
p. 296, as to the jurisdiction of the Courts of British Columbia in
divorce and matrimonial causes.

"Compare the "English Law" Acts of Manitoba and the N.
W. T. with the British Columbia Act. See post, pp. 293, 296.

'For other New Brunswick cases, see Ex parte Ritchie, 2
Kerr., 75, and Ex parte Bustin, 2 Allen, 211; in which the Eng-

ENGLISH LAW INTRODUCTION. 283

Quebec: —

Following upon the Treaty of Paris of 1763,
by which Canada was ceded by France to Great
Britain, the King's proclamation, issued in October
of that year,^ foreshadowed the establishment in the
colonies acquired under the treaty of local assemb-
lies ^ * and in the meantime, and until such assemblies
can be called as aforesaid all persons inhabiting in or
resorting to our said colonies may confide in our
Royal protection for the enjoyment of the benefit
of the laws of our realm of England." This was
construed as introducing English law into the prov-
ince of Quebec,^ but there was much controversy
upon the point.

The Quebec Act, 1774, however, settled the ques-
tion for the future in broad outlines by providing
that the criminal law of England should continue in
force, but that ** in all matters of controversy re-
lative to property and civil rights, resort should be
had to the laws of Canada as the rule for the deci-
sion of the same.'' The result of this enactment
has been, as put by the Privy Council, that ^ * the law
which governs civil rights in Quebec is in the main
the French law as it existed at the time of the
cession of Canada, and not the English law which
prevails in the other provinces."^ For this rea-
son, the province of Quebec calls for little treatment

lish statutes as to certiorari were held not in force: Wilson v.
Jones, 1 Allen, 658, in which I Rich. II. c. 12, giving a creditor
an action of debt against a sheriff 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. Mur-
ray, 2 Kerr., 359.

^ See ante, p. 16, note.

"See the report of Hey, C.J., in Appendix to 1 L. C. Jurist;
judgment of Lafontaine, C.J., in Wilcox v. Wilcox^ 8 L. C. R. 34;
argument of counsel in Re Marriage Laws (1912), 46 S. C. R-, at
p. 217; and judgment of Duff, J., ih., p. 403.

'Citizens v. Parsons, 7 App. Cas. 96; 51 L. J. P. C. 11; con-
veniently cited as Parsons* Case.

284 CANADIAN constitution: imperial limitations.

upon the subject matter of this chapter. The posi-
tion of the Roman Catholic Church in that province,
in view of the concessions made to those of that faith
by the Quebec Act, 1774, was to some extent defined
by the Privy Council in Guihord's Case;^^ and the
law of the province on the subject of marriage was
the subject of recent consideration by the Supreme
Court of Canada;^ but extended treatment of these
matters is beyond the scope of this work. It would
seem reasonably clear that, upon the cession of Can-
ada to England, any laws previously in force based
upon principles fundamentally opposed to those un-
derlying British laws would be abrogated ;^^ and that
the Quebec Act, 1774, would not restore them.

Ontario : — '

Ontakio falls within the class of colonies into
whose legal system English law has been introduced
by the Will of the colony itself, as expressed in legis-
lative enactment.

In 1774, the Parliament of Great Britain, by giv-
ing to the inhabitants of Canada, then almost ex-
clusively French, the law in accordance with which
they had been accustomed to regulate their daily
lives, secured their cordial adherence to British con-
nection despite the enticing words of Washington
and his French allies,^ In like manner, in 1791, they
established the new immigration in content in the
upper province by giving them an assembly of their

^^ Brown V. Les Gur4 &c., de Notre Dame de Montreal (1875),
L. R. 6 P. C. 206; 44 L. J. P. C. 1.

^Re Marriage Laws (1912), 46 S. C. R. 132; affirmed in the
Privy Council on the question of jurisdiction as between the
Parliament of Canada and the provincial legislatures (as to
which, see post, p. 556, et seq.) ; but without discussion of other
topics: (1912), A. C. 880; 81 L. J. P. C. 237.

^^ See ante, p. 125.

'See Confed. Deb., p. 606, and the author's "History of Can-
ada," p. 108.

ENGLISH LAW INTRODUCTION. 285

own with the power to adopt such system of laws as
they might deem best calculated to secure and ad-
vance their own material and religious welfare. In
the very first Parliament of Upper Canada, by the
first Act of its first session,^ *^ that was done which
no doubt was anticipated and intended as a conse-
quence of erecting Upper Canada into a separate
province. ' '^ It was enacted that ' ^ from and after the
passing of this 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 of the same/'

The Criminal law of England had been in force
in the old province, and no legislation was deemed
necessary by the legislature of Upper Canada be-
yond naming a day, in reference to which the Eng-
lish criminal law was to be considered fixed. This
date was fixed by 40 Geo. III. c. 1 (U.C.)? which
enacted : * * The criminal law of England, as it stood
on the 17th day of September, 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 province of Quebec
passed after the Quebec Act of 1774.

In the province of Ontario, therefore, the whole
question turns upon the effect which should be given
to these enactments. So far as concerns the law
relative to property and civil rights, it will be
found that, owing to the construction placed upon
the English Law Act of 1792^ by the Courts of Upper-
Canada, the same method of enquiry was often fol-
lowed in that province (now Ontario) as in the Mari-
time Provinces; but a decision of the Court of

^32 Geo. III. c. 1 (U.C).

*Per Robinson, C.J., in Doe d. Anderson v. Todd, 2 U. C. Q.
B. 82.

"32 Geo. III. c. 1 (U.C).

286 CANADIAN constitution: imperial limitations.

Appeal for Ontario in 1907^^ throws mnch doubt
upon many of the earlier cases.

Throughout the law reports of Upper Canada
(Ontario) numerous cases will be found in which
laws passed by the Parliament of England, and in
force there in 1792, were without question acted
upon as being the law of Upper Canada. In the very
first volume of reported cases, by Taylor, several
of such instances appear,^ and so on through the
reports to the present time. For instance, no ques-
tion seems to have ever been raised as to the Statute
of Uses,^ the Statute of Frauds,^ the Acts of Eliza-
beth's time as to fraudulent and voluntary convey-
ances,^ and a casual glance at our Digests will re-
veal-many others as to which no doubt has ever
found a reporter. As being in affirmance of the
common law, or in amendment of same defect in that
law working general detriment, their position as
practically part and parcel of general English law
was too fully recognized to be questioned. A statute
of Elizabeth making void, in the interest of the
guilds, articles of apprenticeship for a less term than
seven years was the first statute upon which argu-
ment seems to have been had, and in three early
cases^^ it received consideration. In two of these
it was held not part of the law of Upper Canada.
^^ That Act was obsolete in England even before the
statute which repealed it. . . . We consider the
statute as a local Act, which was probably adapted
to the state of society in England three hundred

'"' Keewatin Power Co. v.

Kenora,

16 Ont. L. R. 184;

see post,

. 291-2..
« Taylor,
' 27 Hen.
«29 Car.
" 12 Eliz.

546.

VIII. c. 10.

II. c. 3.

c. 5; 27 Eliz. c.

^'Fish V,

. Doyle (1831),

Drap.

328;

Dillingham v.

Wilson

(1841), 6 U,

, C. Q. B. (O.S.)

, 85; 8hea v,

. Choat (1845),

2 U. C.

B. 211.

ENGLISH LAW INTRODUCTION. ^87

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^ it was broadly contended that
the question of applicability was not open under the
Upper Canadian* statute; that all English statute
law of 1792 had been introduced by it except the
poor and bankrutcy laws.^ The Court, however,
held that a recognition must be accorded to the dif-
ferences of environment, and that the Courts of
Upper Canada should consider the question of the
adaptability of any English Act ** to the nature of
our institutions. '' To some extent this view of the
effect of 32 Geo. III. c. 1 has not met with entire
approval by individual Judges in subsequent cases ;
but the decided tendency of the authorities was,
until recently, to support the principle just laid
down.

The English statute 9 Geo. II. c. 36 — commonly
classed as one of the Mortmain Acts — has been
under review in a number of decided cases ;* and in
the argument of counsel and the opinions of the
Judges will be found all the considerations which
can be urged in support of the two different views.

In the result the statute was decided to be in
force in Upper Canada, but only on the ground of

* Per Sherwood,. J., in Dillingham v. Wilsen. As will appear,
Keevxitin Power Go. v. Kenora (uM supra), leaves this enquiry
still open at least as to English statute law: post, p. 292.

* Shea V. Choat. The head-note is misleading. In speaking of
20 Geo. II. c. 19, Rohinaon, C.J., says: "My inclination at present
is that that statute in its present scope and bearing is not applic-
able to this province"; but he decided that, even if in force, the
pleading could not be supported, not showing a case within the
statute.

'Expressly excepted by sec. 6.

*The latest is Whitby v. Lipsoombe, 23 Grant 1, in which all
the earlier cases are reviewed. See also Smith v. Meth. Church,
16 0. R. 199; Butland v. Gillespie, ib., 486.

288 CANADIAN constitution: imperiai, limitations.

its implied recognition by our colonial legislature;
the view of a decided majority being that it was not
introduced by the sole force of 32 Geo. III. c. 1.
The Courts of Upper Canada (Ontario) practi-
cally adopted the view of Robinson, C.J., that the
terms of the Act of 1792 (U.C), '' do not place the
introduction of the English law on a footing ma-
terially different 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 hav-
ing been first inhabited and planted by British sub-
jects. ' '^ This oonstruotion would place Ontario upon
the ^ame line in this matter as the Maritime Pro-
vinces and the more lately acquired provinces of
Canada ; but the latest pronouncement of the Court
of Appeal for Ontario is distinctly opposed to this
view.

In reference to Lord Hardwicke ^s Marriage Act*
the same principles were invoked^ as in reference to
the Mortmain Acts. In each case the Court consid-
ered: 1st. Is the British statute one which can be
considered as so applicable to the circumstances of
this colony that the legislature must be taken to
have intended to introduce it by the intrinsic effect
of the Act of 17921 This question, in the case of
the Mortmain Acts, does not seem to have been
unanimously answered by Canadian Judges, but the

" Doe d. Anderson v. Todd, 2 U. C. Q. B. 82. And see Maulson
V. Commercial Bank, il)., 338, as to the English Bankruptcy Acts
which were introduced into Upper Canada in somewhat similar
language.

"26 Geo. II. c. 33 (Imp.), Lord Lyndhurst's Act of 1835 has
been held not to extend to Canada: Hodgins v. McNeil, 9 Grant,
309. See ante, p. 263.

'Reg. V. RoUin, 21 U. C. Q. B. 355; Hodgins v. McNeil, uU
supra; O'Connor v. Kennedy, 15 O. R. 22; Lawless v. Chamher-
lain, 18 O. R. 309; and see Breakey v. Breakey, 2 U. C. Q. B. 349;
Reg. V. Seeker, 14 U. C. Q. B. 604; and Reg. v. Bell, 15 U. C. Q.
B. 287.

ENGLISH LAW INTRODUCTION. 289

weight of authority would appear to be for a nega-
tive answer — in conformity with English decisions.^
As to the Marriage Act of Lord Hardwicke there
seems to have been no difference of opinion — all
agreeing in the result arrived at in favour of an
affirmative answer, except as to the 11th and 12th
clauses.^

2nd. Has there been subsequent legislative recog-
nition by the provincial Parliament of the binding
force here of the Act in question? As to both Acts,
the answer has been unanimously in the affirmative/*
To these considerations may be added :

3rd. Have the decisions of provincial Courts pro*
ceeded so clearly upon one line, and for such a length
of time, as to have established a rule of law in regard
to dealings with property, or in regard to the status
of particular classes of persons 1 In the later cases
this consideration operated most powerfully. Ill
1876, Mr. Justice Burton used this language :^
'* Where solemn determinations which establish a
period, a Court even of last resort should require
very strong grounds for interfering with them;''
and Mr. Justice Patterson, speaking of Doe d. And-
erson V. Todd, said: *^ It has been acquiesoed in too
long and has for too long a period governed titles
to land in this province to be now interfered with by
any authority short of legislative enactment;'' and
in the opinion of Mr. Justice (afterwards Chief
Justice) Moss the same rule of expediency is

^Ante, pp. 274-5.

^Lawless v. Chaml)erlain, uhi supra; May v. May (1910), 22
Ont. L. R. 559. These clauses render absolutely void a minor's
marriage (by license) without consent of parent or guardian.

^"Whitby V. Lipscomde, 23 Grant 1 (as to Mortmain Acts);
cases supra (as to Marriage Act of Lord Hardwicke). Cf. Seman
Appu V. Queen's Adv., 9 App. Gas. 571 ; 53 L. J. P. G. 72.

^Whitby V. Lipscorribe, uM supra.

CAN. CON. — 19

290 CANADIAN constitution: imperiai, limitations.

expressed in those polished periods by which his
written opinions were always characterized.

An earlier case^ brings into prominence another
question proper for consideration in deciding
whether or not a particular British Act is in force
in Ontario : Is the Act one of general application in
England, or is it local in the sense of being confined
to some particular locality or local institution in
England 1 And, as already intimated, this enquiry is
still open. The Aots in question there made certain
provisions in reference, amongst other matters, to
escape warrants. Eichards, C.J., decided that the
earlier of these statutes was not part of our law,
because ^' passed with reference to the peculiar
position of the officers of the prisons ^' (the Marshal-
sea and the Fleet) ^* to which it referred, and the
evils recited in the preamble, which state of things
has not, and is not likely to exist in this country.^'
The dissenting opinion of Mr. Justice Wilson (after-
wards Chief Justice Sir Adam Wilson) is not a dis-
sent in principle, but a joinder of issue on the facts.
'^ Although it may have a limited application in
England to the two special and peculiar prisons of
the Courts, it is nevertheless a general law, and a
beneficial one, and as there are no special prisons of
the Courts here, but all the gaols of the province are
equally the prisons of- the Court, the statute, being
such general law by the declaration df the statute
itself, has an operation here upon all the prisons of
the Courts.''^

'Hesketh v. Ward 17 U. C. C. P. 667. See ante, p. 282; Le
Syndicat Lyonnais v. McGrade (1905), 36 S. C. R. 251.

^On this principle, many English statutes referring to, e.g.,
the Courts " at Westminister " have been held to be part of gen-
eral English law, and as such in force here in relation to our
Superior Courts. See 43 Eliz. c. 6, and 13 Car. II. c. 2, as to
costs in certain cases, and note the New Brunswick decisions
on this point, ante, p. 282.

ENGLISH LAW INTRODUCTION. 291

In a series of cases it was held that the provisions
of 14 Geo. III., cap. 78, relating to the liability of per-
sons upon whose premises a fire accidentally sitarts,
for damages resulting from its spreading to the pre-
mises of another, are part of our law, because they
were part of the general law of England and were
not of local application there in the sense before
referred to.*

^5 to the criminal law: Under the Upper Can-
adian statute ot laou," evef>^ Act of the British Par-
liament in force as part of the general criminal law
of England on the 17th day of September, 1792, was
introduced into Upper Canada. The enquiry proper
in civil cases as to the applicability of a British Act
to the circumstances of a colony was eliminated, and
the only enquiry is — Is the Imperial statute local in
the sense above indicated? If not, it is part of the
law of Upper Canada. Owing, however, to the codi-
fication of the criminal law of Canada " further refer-
ence to this branch of the subject need not be made.'

In 1907, as already intimated, the whole question
was reconsidered by the Court of Appeal for On-
tario."^* Mr. Justice Anglin had held that the rule of
English law governing non-tidal rivers, even when
navigable in fact, was so far modified in its applica-
tion to Canada that a public right of navigation
jure naturce existed over Canadian rivers navigable

* Gaston v. Wald, 19 U. C. Q. B. 586; Stinson v. Pennock, 14
Grant, 604; Carr v. Fire Ass., 14 O. R. 487; C. 8. R. v. Phelps, 14
S. C. R. 132; Laidlaw v. Crow's Nest Ry. (1909), 14 B. C. 169, 42
S. C. R. 169.

= 40 Geo. III. c. 1 (U.C.). See ante, p. 285.

« In 1892. The " criminal law " over which the Dominion
Parliament has legislative power, does not, however, cover the
whole field of penal legislation. See B. N. A. Act, s. 92, No. 15.

■In Appendix is a tabulated statement of English statutes as
to which question has been raised in the Courts. Many of these
are criminal statutes.

""■ Keewatin Power Co. v. Kenora, 16 Ont. L. R. 184, reversing
13 Ont. L. R. 237.

292 CANADIAN- constitution: imperiai, limitations.

in fact and particularly over those forming part of
the international honndary line between Canada and
the United States ; and that;, in regard to such rivers,
the rule of English law that a grant of land upon the
border of a stream presumably carried title to the
middle line of the streiam was not the rule of Cana-
dian law, the presumption being, in his opinion, to
the contrary/^ The Court of Appeal unanimously
reversed this judgment, holding that as to the gen-
eral principles of the English common law and as
to English statute law of a general character no
question of applicability in its wider sense could be
raised; but in the judgment of Sir Charles Moss,
C.J.O., it is intimated that the question is always
open as to the purely local character of 'an English
statute and, it is conceived, the same question might
arise as to some features of English common law;
for example, copyhold/"

The position in Ontario may be shortly sum-
marized. In any case, the question whether or not
any particular British statute of date anterior to
1792 has the force of law in Ontario will depend,
in the first place, upon the absence of colonial legis-
tation — Canadian or Provincial, as the case may be
— on the subject matter involved. If there is none
such, then the following points must be considered :

(1) Is the Act one of general English application'?

(2) If not, or if the matter is one of reasonable
doubt, has there been a legislative recognitioii_Qf the
British Act as being in force here? (3) Have the
decisions of the Courts proceeded so clearly upon
one line as to have established a rule of property
or status in the province ?

■'" The recent decision of the Privy Council in Maclaren v. Atty.-
Gen. (Quebec), 83 L. J. P. C. aoi, (1914) A. C. affirms the view
taken by the Court of Appeal of Ontario upon this last point.

'"' The subject of navigation and shipping has already been
dealt with to some extent in Chap. XII., ante, p. 211; and it will
come up again in Part II. of this book.

ENGLISH LAW INTRODUCTION. 293

As to the common law: Unless clearly dealing
with a purely local institution, it wasjntrod]i£e.d in
its entirety by the Upper Canadian Statute of 1792 ;
and is still law unless altered or abrogated by Cana-
dian enactment.

Other Provinces: — The statutes by which this
question is governed in the provinces more lately
acquired expressly miake ^^ applicability '^ the test
of introduction.

North-West Territories: Alberta: Saskatche-
vvAN: After the admission of Eupert's Land and the
aorth-western territory to the Canadian Union,^ the
Parliament of Canada continued all the then exist-
ing laws in those regions f and so the matter stood
until 1887. In that year it was provided that ^* the
laws of England relating to civil and criminal mat-
ters as the same existed on the 15th day of July,
1870, shall be in force in the Territories in so far as
the same are applicable to the Territories,'^" sub-
ject, of course, to such alterations therein as had
been affected by proper legislative authority. Down
to 1887 the law in force was the law of England as
it stood in 1670, the date of the Hudson's Bay Com-
pany's charter.^

Lord Hardwicke's Marriage Act was held not to
be in force in the Territories quoad Indians.^ In 1907
the British '' Debtors' Act, 1869," was held to be in
force in Alberta by a divided Court after a careful

*By Order in Council (Imp.), 23 June, 1870, passed under
the authority of the B. N. A. Act, s. 146.

« 32 & 33 Vict. c. 3 (Can.).

^'R. S. C. (1886), c. 50, s. 11; 49 Vict. c. 25 (Dom.).

^Re Calder, 2 Western Law Times, 1; Sinclair v. Mulligan,
5 Man. L. R. 17: but see Connolly v. Woolrich, 11 L. C. Jur. 197,
and an article in 4 Can. Law Times, p. 1, et seq., by Mr. C. C.
McCaul. A large part of that region was undoubtedly first occu-
pied by French Canadian voyageurs.

''Reg. V. Nan-e-quis-a Ke, 1 Terr. L. R. 211. See ante, p. 288,
as to the Ontario decisions.

294 CANADIAN constitution: imperial, limitations.

discussion of the principles to be kept in view on
such an enquiry.^^ The provisions of the British Act
of 1838 respecting registration of notice of lis pen-
dens are purely local and were not introduced into
the North-West Territories by the Canadian Act
above referred to.^^ The '' Infants Relief Act,
1874, ' ' is not in force in Alberta.^^

Manitoba: ^^ Until 1870,'' said Taylor, C.J.,
'* 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
which are within the jurisdiction of the provincial
legislature and have been dealt with by it, that is
the law of this province at the present day."^ The
legislature of the province had dealt with this ques-
tion in 1874* by providing that *^ The Court of
Queen's Bench shall decide and determine all mat-
ters 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."

2" Fraser v. Eirkpatrick, 6 Terr. L. R. 403.

2" 2 & 3 Vict. c. 11 (Br.) : Syndicat Lyonnais v. McGrade (1905),
36 S. C. R. 251.

^^ Brant v. GHffin, 1 Alta. L. R. 510. The Britisli Act is of
later date than 1870, but the case is cited as drawing attention
to the use in the N. W. T. Act of the word " applicable " in two
different senses.

^Sinclair v. Mulligan, 5 Man. L. R. 17; 3 Man. L. R. 481.

*By 38 Vict. c. 12 (Man.). In 1871, a provincial Act (34 Vict,
c. 2), established a Supreme Court in Manitoba, and provided
that : " 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 Court of Manitoba " ; but it was doubtful if this
was more than a law of procedure: See Sinclair v. Mulligan, uJ)i
supra. Cf. the N. S. Wales cases referred to, ante, p. 275.

ENGLISH LAW INTRODUCTION. 395

This statute has been uniformly treated as intro-
ducing into Manitoba the law of England as it stood
at the date mentioned.

The limited operation of this Act is indicated by
Taylor, C.J., in the passage of his judgment above
italicized. From time to time the Parliament of
Canada has passed statutes introducing certain por-
tions of the statute law of the Dominion, passed
prior to 1870, into Manitoba. Statutes since 1870
are of course in force there unless expressly ex-
cepted. But until 1888 no general provision was
made as to those matters which are within the legis-
lative competence of the Dominion Parliament, so
that the law in Manitoba as to all such matters was
the English law of 1670.^

** To remove doubts ^' a Dominion Act was
passed in 1888® providing that *' The Laws of Eng-
land relating to matters within the jurisdiction of
the Parliament of Canada, as the same existed on
the 15th July, 1870, were from the said day and are
in force in the province of Manitoba, in so far as the
same are applicable to the said province, and in so
far as the same have not been and are not hereafter
repealed, altered, varied, modified, or affected by
any Act of the Parliament of the United Kingdom
applicable to the said province, or of the Parliament
of Canada. ' *

In the leading case^ in Manitoba the Statute of
Uses was held to be in force, the Statute of Enrol-
ment was held inapplicable, and the Statute of
Frauds not to be in force because of date subsequent
to 1670. In the result a verbal bargain for the sale

* See Canadian Bank of Commerce v. Adamson, 1 Man. L. R.
3, as to bills of exchange.

«51 Vict. c. 33 (Dom.).

^ Sinclair v. Mulligan, uM supra: followed in Templeton v.
Stewart, 9 Man. L. R. 487.

296 CANADIAN constitution: imperial limitations.

of lands was enforced nnder the Statute of Uses.
The English law of descent as it stood in 1670 was
given effect to as late as 1890.^ The introduction
of the criminal law of England did not include the
law as to maintenance and champerty; and a pro-
vincial Act allowing bargains of that character was
held intra vires.^^

Bkitish Columbia : In 1871, before its admission
to the Canadian Union,® the legislature of the colony
had enacted :^®

" 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 Col-
umbia.^'

This statute was held^ to introduce the English
'^ Matrimonial Causes Act, 1857," Chief Justice
Begbie, however, dissenting from the judgment of
the majority, the local circumstances of the colony
precluding, in his opinion, its operation therein.^
The jurisdiction of the British Columbia Supreme

'Re Tait, 9 Man. L. R. 617.

^* Thomson v. Wishart (1910), 19 Man. L. R. 340.

» Avoiding the Manitoba difficulty as indicated by Taylor, C.J.,
in Sinclair v. Mulligan, supra.

^°No. 70 of 34 Vict. (1871). The proclamation (19th Nov.,
1858), of Governor Douglas had so ordained as to the mainland
colony; and the Act of 1871 was passed to extend its provision
in this regard to the united colony.

*The use of the double negative would seem to place British
Columbia in line with New Brunswick: see ante, p. 282.

^M. falsely called 8. v. ;8'., 1 B. C. (pt. 1), 25: see also 8cott v.
Scott, 4 B. C. 316.

'Other B. C. cases are Beg. v. Ah Pow, 1 B. C. (pt. 1), 147;
In re Ward & Victoria, ih., 114; Foley v. Webster, 3 B C. 30. As
to the operation of English ecclesiastical law in B. C, see ante,
p. 275.

ENGLISH LAW INTRODUCTION. 297

Court in Divorce and Matrimonial Causes has been
finally affirmed by the Privy Council/

The use of the double negative throws the burden
on him who asserts that a given English law, statu-
tory or other, of date prior to 1858, was not intro-
duced into British Columbia.^^

The law of England as to the right of the public
to fish in tidal waters is the law of the province.^

*Watt V. Watt (1908), A. C. 573; 77 L. J. P. C. 121; reversing
13 B. C. 281.

*» Watt V. Watt, 13 B. C. 281.

'Re B. C. Fisheries (1913), 47 S. C. R. 493; (1914), A. C. 153;
83 L. J. P. C. 169.

PART H.

SELF-GOVERNMENT

UNDER THE

BRITISH NORTH AMERICA ACT, 1867
AND ITS AMENDMENTS.

CHAPTER XV. •

Outline Sketch (Pakt II.)

Part I. of this book has dealt with the limita-
tions upon Canada's powers of self-government
arising from her position as a British Colony. She
is not one of the family of nations and her external
relations with foreign powers are under the control
of the British Government; to this extent, at least,
that the Imperial stamp, in some form, is necessary
to give legal efficacy. Again, Canada is only one of
a sisterhood of self-governing dominions under the
British Crown, and in matters which concern her
relations with the parent state or with other parts
of the Empire, she and they alike recognize the
superintending authority of the Imperial Parlia-
ment; at least to the extent required for legal
efficacy.^ All, moreover, recognize that parlia-
ment as the supreme and ultimate power in legis-
lation for and throughout the British Empire.
How far that supreme power has been exer-
cised in the past in relation to matters which or-
dinarily might be considered to pertain to> internal
self-government was one of the main themes of
Part I. How far at any moment of time the British
Parliament should treat such topics as of Imperial
moment and legislate upon them as such rests in
the wisdom of those who,- throughout the Empire,
are charged with control of its affairs. It is a
purely domestic problem within the Empire. With
one notable exception, some one hundred and forty
years ago, mutual forbearance and goodwill have so
far solved all difficulties; and time will in the end,

^Notable examples are the Fugitive Offenders' Acts (see ante,
p. 198), and the Pacific Cable Acts (see ante, p. 266).

302 CANADIAN CONSTITUTION : SELF-GOVERNMENT.

no doubt, evolve a more perfect system and, if neces-
sary, remove the problem from the realm of con-
stitutional usage to the realm of constitutional law.

Stress has been laid upon the fact that the
British Parliament is the only constituent as-
sembly, properly so-called, within the Empire. That
free ^^ mother of parliaments '^ is the sovereign
constitution-maker for the outlying dominions
under the British Crown; and like breeds like.
Local self-government through representative as-
semblies has always been favoured of British policy,
and within the last eighty years the tendency has
become marked towards the establishment of the
larger colonies upon sL basis of complete self-govern-
ment, subject only to the maintenance of Imperial
or — ^which is the same thing — national unity in the
face of the world. Their political standing within
the Empire is recognized in the phrase ^' self-
governing dominions '* which has of late become
common in Imperial statutes.^ Their charters of
government are not powers of attorney to manage
affairs in the colonies as the agents or delegates of
the people of the British Isles, but charters confer-
ring powers of self-government as complete and
ample within the colonial ambit and of the same
nature as are those of the British Parliament. In
form the Constitutions established have been in the
main modelled upon that of the motherland ; and for
many years past, as will appear, the principle of
responsible parliamentary government has been
recognized as the working principle of government
as well in the self-governing colonies as in the
parent state.

The plenary nature of colonial legislative power
has been already discussed, more particularly in

^ See post, p. 352.

OUTLINE SKETCH, (part II.) 303

connection with the doctrine of exterritoriality;^ so
that in this Part, it will only be necessary to make
clear that the principle applies equally to all Cana-
dian assemblies, to the provincial legislatures as
well as to the Parliament of Canada.

Furthermore, constituent power, that is to say,
the power to alter the framework of government as
prescribed in the Constitution conferred by the Im-
perial Parliament, has been to some extent con-
ferred. This feature of the Canadian Constitution
has been given an entire chapter' in Part I. of this
book. It appeared there rather than in this Part,
because it touches more our position in the Imperial
scheme than the relations between the Dominion of
Canada and its various provinces. Further refer-
ences to it in this Part will be somewhat casual.

The British North America Act,

The Dominion of Canada looks for its Constitu-
tion to the British North America Act, 1867.* Since
the 1st day of July in that year, Canada's form of
political organization has been, under that Act and
its various amendments, (a) a general or Dominion
government charged with matters of common in-
terest to the whole country, and (b) local or pro-
vincial governments charged with the control of
local matters in their respective sections.^ The
structure of these governments is provided for in
the Act and the sphere of political activity assigned
to the Dominion Government on the one hand and
to provincial governments on the other is i3arefully
mapped out.

' Chap. VII., ante, p. 93, et seq.

* 30 & 31 Vict. c. 3 (Imp.): in full in Appendix.

''General and local are the distinguishing words used in the
Quebec Resolutions, upon which the Act was mainly based. See
Appendix.

304 CANADIAN CONSTITUTION I SELF-GOVEENMENT.

Originating in the will of the individual and, as
between themselves, independent colonies con-
cerned, the Act represents the first attempt to pro-
vide in a written organic instrument a federal form
of government for one large area of the British Em-
pire; and the experiment has been repeated in the
case of the Australian Colonies.' The whole wide
field of self-government in Canada has been divided
and to each of the divisions, federal and provincial,
full powers of government, legislative and executive,
have been given. As described by that great ex-
pounder of the British North America Act, the late
Lord Watson -J

"The object of the Act was neither to weld the Pro-
vinces into one, nor to subordinate Provincial Governments
to a central authority, but to create a Federal Government
in which they should all be represented, entrusted with the
exclusive administration of affairs in which they had a com-
mon interest, each province retaining its independence and
autonomy. That object was accomplished by distributing,
between the Dominion and the provinces, all powers, execu-
tive and legislative, and all public property and revenues
which had previously belonged to the provinces; so that
the Dominion Government should be vested with such of
these powers, property and revenues as were necessary for
the due performance of its constitutional functions and
that the remainder should be retained by the provinces for
the purposes of the Provincial Government."

Outline of the Act : — At this stage, it may be well
to exhibit shortly the general scheme of the Act.
It opens with recitals which show, in the first place,
that it was passed in order to carry into effect
the expressed desire of Canada, Nova Scotia and
New Brunswick ^' to be federally united into one

• See the Commonwealth of Australia Constitution Act, 1900
(63 & 64 Vict, c. 12— Imp.)

' In the Liquidator's Case (1892), A. C. 437 ; 61 L. J. P. C. 75.

OUTLINE SKETCH ,(PART II.) 305

Dominion under the Crown of the United Kingdom
of Great Britain and Ireland, with a constitution
similar in principle to that of the United Kingdom ; ' '
and, secondly, that the eventual admission of other
parts of British North America into the union was
contemplated.

The Act is divided into eleven parts, with head-
ings and sub-headings; and these (unlike the mar-
ginal notes) are to be read as an integral part of
the statute, affording in many cases a master key
to the proper interpretation of the clauses grouped
under them.^

Part '^ /. — Preliminary '' (sees. 1 and 2) pro-
vides for a short title to the statute, *^ The British
North America Act, 1867 ; ^ ' and that the provisions
of the Act relating to the Queen are to apply to her
heirs and successors, Kings and Queens of the
United Kingdom. It may be stated here that there
are three other statutes similarly entitled: The
British North America Act, 1871,^ the British North
America Act, 1886,^^ and the British North America
Act, 1907.' By section 3 of the statute of 1886, the
three Acts to that date are to be read together and
may be cited as ^ ' The British North America Acts,
1867 to 1886.'' With them must also be read the

"See Eastern, dc, Ry. v. Marriage (1861), 9 H. L. Cas. 32;
Inglis V. Robertson (1898), A. C. 616; 67 L. J. P. C. 108.

* 34 & 35 Vict., c. 28: "An Act respecting the establishment of
provinces in the Dominion of Canada."

^° 49 & 50 Vict,, c. 35: " An Act respecting the representation in
the Parliament of Canada of territories which for the time being
form part of the Dominion of Canada, but are not included in any
province."

^ 7 Edw, VII., c. 11, respecting provincial subsidies only. There
is another Imperial Act in amendment of the British North
America Act, 1867. By the " Parliament of Canada Act, 1875 "
(38 & 39 Vict., c. 38), section 18, relating to the privileges of
parliament, was amended: see ante, p. 44.

CAN. CON. — 20

306 CANADIAN CONSTITUTION : SELF-GOVERNMENT.

various Imperial Orders-in-Council admitting other
parts of British North America to the Canadian
Union; for, under section 146 of the Act of 1867,
these Orders-in-Council have the force of Imperial
Acts.

Part "" II. — Union '' (sees. 3-8) creates the Do-
minion of Canada covering the three former
colonies of Canada, Nova Scotia and New Bruns-
wick. Four provinces were to be established and
to that end Canada as it stood under the Union Act,
1840, was to be taken as severed into Ontario ^ (old
Upper Canada) and Quebec (old Lower Canada),
while Nova Scotia and New Brunswick retained the
same limits as at the passing of the Act. At that
date, there were three other British colonies in
North America, namely, Newfoundland, Prince Ed-
ward Island and British Columbia. The balance of
British territory in North America was unorgan-
ized, except in so far as the government of the
Hudson's Bay Company in Rupert's Land might be
deemed an organized government. Part XL of the
Act makes provision for the admission of all these
other parts to the Canadian Union. Newfoundland
has so far declined all invitations to unite her for-
tunes with the Dominion, although she was one of
the colonies represented at the Quebec Conference
(1864), at which were adopted the resolutions upon
which the scheme of Confederation is mainly based
British Columbia and Prince Edward Island have
since joined the union ; and the remainder of British
territory in North America has been annexed to
Canada, and out of it have been carved the pro-
vinces of Manitoba, Saskatchewan and Alberta.

'See 52-53 Vict., c. 28 (Imp.), fixing the boundaries of Ontario,
in accordance with the award referred to in it. For the bound-
aries of the Dominion and of the individual provinces, see
Houston, 'Const. Doc. of Canada,' p. 271.

OUTLINE SKETCH ,(PAKT II.) 307

There are now, therefore, nine provinces in Canada,
exclusive of the Territories.

Part ^^ ///. — Executive Power '^ (sees. 9-16) has
reference to the federal executive. As already
pointed out,^ there is no new creation of headship
for the government of the Dominion. The executive
government and authority of and over Canada is
declared to continue and be vested in the Crown of
the United Kingdom. It is administered locally by
the Governor-General or other the chief executive
ojBficer or administrator for the time being carrying
on the government of Canada, by whatever title he
may be designated. He acts by and with the advice
of the Privy Council for Canada; and so far as is
necessary for the carrying on of the federal govern-
ment all statutory powers, authorities, and func-
tions previously possessed by the various governors
of the pre-Confederation provinces are by the Act
(sec. 12) vested in the Governor-General of Canada.

Part '' IV.— Legislative Power'' (sees. 17-57)
has reference also to the Dominion Government
only. Its title is not quite accurate. What is dealt
with in this Part is the federal legislative machinery.
Incidentally, some of its provisions confer legis-
lative power of a constituent character,* but the
main provisions of the Act as to the distribution of
legislative power are contained in Part VI., sections
91 to 95.

The Parliament of Canada consists of the Crown,
an Upper House, styled the Senate, and the House
of Commons; and it must meet once at least in
every year. The use of the term " Parliament '' in
reference to the Dominion Legislature only was
formerly much relied on in argument to belittle
the standing of provincial legislatures; but their

' Chap. III., ante, p. 25.
*See ante, p. 40.

308 CANADIAN CONSTITUTION : SELF-GOVEKNMENT.

co-ordinate rank with the Dominion Parliament,
each being supreme within its sphere of legislative
authority, is now finally established/* The name
bestowed upon any of these bodies is immaterial.
The question is: Have they legislative powers in
the proper sense of that term? The Crown is pos-
sessed of a share in legislation throughout the Em-
pire, and it would require very express language in
any Constitutional Act to warrant an inference that
sovereign powers of legislation '^ in which the
British Sovereign was to have no share ' * have been
bestowed upon any colonial legislature.

Part '^ V. — Provincial Constitutions ^' (sees. 58-
90) consists of two main subdivisions, ^* Executive
power '' and ^' Legislative power.' ^ This last ex-
pression, it should be again noted,^ is inexact. What
is dealt with in this Part is the legislative ma-
chinery for the provinces. Some of the sections do,
it is true, impliedly confer powers of legislation, but
these are all of a constituent character,^ and do not
touch the distribution of legislative power as be-
tween the Dominion and the provinces. That is
provided for in Part VI. of the Act.

Executive Power: — In each province the Crown
is represented by ^* an officer, styled the Lieutenant-
Governor, appointed by the Governor-General in
Council by instrument under the Great Seal of
Canada. '' He acts by and with the advice of the
Executive Council of the province, that is to say,
of the provincial ministry. In the case of Nova
Scotia and New Brunswick, the provision was
simple; the constitution of the executive authority
in those provinces was continued, subject only to the

*" Liquidator's Case (1892), A. C. 437; 61 L. J. P. C. 75. See
post, p. 350.

* See ante, p. 307.

^ See Chap. V., ante, p. 40.

OUTLINE SKETCH ,(PART II.) 309

change in the method of appointment of the execu-
tive head of the province, and to those provisions
of the British North America Act which limit the
provincial sphere of legislative authority and,
necessarily and co-relatively, the executive sphere
as well. The same course was adopted in the
Orders-in-Council admitting British Columbia and
Prince Edward Island to the Canadian Union ;^
their executive government continued as before
their admission, subject to the same qualifications
as above mentioned. On the other hand, the division
of (old) Canada into two provinces necessitated
more detailed provision as to the constitution of the
executive councils of those provinces. All statutory
powers, authorities and functions which had pre-
viously been vested in the Governors or Lieutenant-
Governors of (Old) Canada, Upper Canada, or
Lower Canada, were by the Act (sec. 65) vested in
the Lieutenant-Governors of the two new provinces,
so far as the same might be capable of being exer-
cised in relation to their government respectively.
No such provision was necessary in the case of
Nova Scotia or New Brunswick or, on their admis-
sion, in the case of British Columbia or Prince Ed-
ward Island. On the other hand, the corresponding
section (12) vesting in the Governor-General all the
statutory powers, etc., of the pre-Confederation
governors, so far as the same might be capable of
being exercised in relation to the government of
Canada applies to all the provinces.^

Legislative Machinery: — For reasons already
stated, new machinery had to be provided for On-
tario and Quebec, while the constitution of the
legislatures of Nova Scotia and New Brunswick

^ The clauses are quoted in Chap. III., ante, and are also to be
found In the appendix.
» See ante, p. 307.

310 CANADIAN CONSTITUTION : SELF-GOVERNMENT.

was not interfered with, subject only to the change
in the method of appointment of the Crown's repre-
sentative. The range of legislative power possessed
by the provincial assemblies prior to the passing of
the Act was, of course, cut down, but that does not
touch the constitutional arrangement of the legisla-
tive machinery. British Columbia and Prince Ed-
ward Island fall into the same category as Nova
Scotia and New Brunswick ;^^ while Manitoba, Sas-
katchewan and Alberta (like Ontario and Quebec)
required new governmental machinery upon their
establishment as provinces of Canada.

The only provision of this Part which applies to
all the provinces originally joined by the Act,
namely, section 90, also applies to all the present
Canadian provinces ; to those admitted by Imperial
Orders-in-Council, as well as to those created by the
Parliament of Canada under permissive Imperial
Acts. This section will best explain itself:

The Four Provinces.

90. The following provisions of this Act respecting the
Parliament of Canada, namely, the provisions relating to
appropriation and tax bills, the recommendation of money
votes, the assent to bills, the disallowance of Acts, and the
signification of pleasure on bills reserved, shall extend and
apply to the legislatures of the several provinces as if those
provisions were here re-enacted and made applicable in
terms to the respective provinces and the legislatures
thereof, with the substitution of the Lieutenant-Governor of
the province for the Governor-General, of the Governor-
General for the Queen and for a Secretary of State, of one
year for two years, and of the province for Canada.

Part **F7. — Distribution of Legislative Powers^*
(sees. 91-95) determines for all purposes of govern-
ment the spheres of authority of the Dominion on

'" The clauses are quoted In Chap. III., ante.

OUTLINE SKETCH ,(PAKT II.) 311

the one hand and the provinces on the other, subject
only to what has been said in Part I. of this book as
to Imperial limitations. The whole field of Canadian
self-government is divided and, speaking generally,
matters of common interest to the whole of Canada
are allotted to the control of the Parliament of
Canada, while matters of more immediate local or
provincial concern are left with the legislative as-
semblies of the various provinces. To draw the line
between these two fields, as that line is fixed by the
Act and by authoritative judicial decisions, is the
main purpose of this Part of this book. As already
noticed,^ there are other sections of the Act which
confer legislative power both upon the Parliament
of Canada and upon the provincial legislatures;
but these are in the nature of constituent powers
and do not vitally affect the question as to the divi-
sion of the field. This Part VI. is the really import-
ant matter.

Part '' VIL — Judicature'' (sees. 96-101) is
really in the nature of a modification of the provi-
sions made by sections 91 and 92 for the adminis-
tration of justice in Canada. The topic will be fully
dealt with hereafter. Here it will suffice to say that
in the main justice is administered through the
medium of provincial Courts, both of civil and
criminal jurisdiction, constituted under provincial
legislation. Criminal law and procedure in criminal
cases is determined by federal law ; and this Part
VII. provides for the appointment of certain of the
judges of the provincial Courts by the Dominion
Ministry, for their payment out of the federal ex-
chequer, and (sec. 101) for the establishment '' not-
withstanding anything in the Act'' of a general
Court of Appeal for Canada and of additional
Courts for the better administration of federal law.

* See ante, p. 40.

312 CANADIAN CONSTITUTION : SELF-GOVERNMENT.

The Supreme Court of Canada, and the Exchequer
Court of Canada have been established under the
powers conferred by this Part.

Part '' VIII. — Revenue, Debts, Assets, Taxa-
tion '' (sees. 102-126) deals with the division of
Crown property as it existed in the various pro-
vinces immediately prior to the passing of the Act;
with the sources of Crown revenue; and with the
financial arrangements then deemed expedient as be-
tween the Dominion and the provinces, as well as be-
tween the two new provinces formed out of (Old)
Canada. So far as tangible assets were concerned,
certain enumerated classes of Crown property were
to become the property of Canada, all others re-
maining the property of the provinces in which,
respectively, they were situate. The line of division
may be said to follow, roughly, the general line of
division of the field for purposes of legislation and,
necessarily and co-relatively, of executive govern-
ment as well. Crown lands and the revenues thence
arising were by the Act specifically allotted to the
provincial governments, an arrangement which has
not been followed in the case of the prairie pro-
vinces, Manitoba, Saskatchewan and Alberta.

Part '^ IX, — Miscellaneous Provisions'^ pre-
scribes the form of the Oath of Allegiance to be
taken by members, both federal and provincial, and
the Declaration of Qualification to be made by sena-
tors of Canada and legislative councillors in Que-
bec. The only other provisions which need here be
mentioned are those contained in sections 132 and
133. Section 132, which conveys to the Parliament
and Government of Canada all powers necessary or
proper for performing treaty obligations, has al-
ready been discussed.^

' See ante p. 134.

OUTLINE SKETCH ,(PAfiT II.) 313

Section 133 provides for the use of the French
language in the debates and records of the Do-
minion Parliament and of the Quebec Legislature;
and for the publication of their statutes in both
languages.

Part '^ X. — Intercolonial Railway '' (sec. 145)
calls for no comment.

Part ^^ XI. — Admission of other Colonies '' has
already been referred to.^ Under it, Imperial
Orders-in-Council have been passed for the admis-
sion of British Columbia and Prince Edward Island
to the Canadian Union as provinces thereof, and
also for the admission of ^' Rupert's Land and the
North-western Territory. '^ The position of this
later territory, both before and after the creation
therein of the provinces of Manitoba, Saskatchewan
and Alberta, will call for more extended treatment
in a later chapter.'*

Spirit of the Act: Responsible Parliamentary
Government. — The British North America Act pro-
fessedly intended to give to Canada a constitution
similar in principle to that of the United Kingdom.'^
The one great legal principle which dominates
British government is the supremacy of parliament.
Side by side with it are what Dr. Dicey calls the
'^ conventions of the Constitution, ' ' those unwritten
constitutional usages which time has established
to give more complete and easy operation to the
legal principle; to ensure, in other words, that exe-
cutive government in all its departments shall be
carried on with full and easily- enforced responsi-
bility to parliament and, through parliament, to the
electors. While this book is not designed to treat
of constitutional procedure and practice resting

' See ante, p. 306.

* Chapter XLIV., post.

• See preamble to the Act.

314 CANADIAN constitution: self-government.

upon the unwritten ^^ conventions of the Constitu-
tion," it would be incomplete if no attempt were
made to show that responsible parliamentary
government obtains in Canada, both in the federal
and in the provincial spheres of government. This
will necessitate some historical references to the
constitutional position of the British Colonies in
Nor^' America prior to Confederation. These will
be found in Chapter XVI.

To further emphasize the fact that we have a
constitution like that of the Motherland, and not,
as some have contended, similar in principle to that
of the United States, a brief comparison of the two
is attempted in Chapter XVII.

Spheres of Authority. — Turning, then, to the
more immediate purpose of this Part, the respective
spheres of government occupied by the Dominion,
on the one hand, and the provinces, on the other, the
legal principle of the supremacy of parliament re-
quires that attention should first be given to the
division of the field for legislative purposes. Legis-
lative jurisdiction and executive power go hand in
hand. To fix the line which divides the field of
colonial authority for legislative purposes between
the Dominion Parliament and the provincial legis-
latures is to fix at the same time the same line of
division for purposes of executive government.
Those sections, therefore, of the British North
America Act ^ which define the law-making spheres,
federal and provincial, are the pivotal clauses upon
which the scheme of Confederation turns.

Next will follow a brief examination of the
machinery provided in and by the Act for the execu-
tive government of Canada and its provinces. The

•Particularly sections 91 to 95, both inclusive; but there are
other sections also to be considered and, as will appear, other
Imperial Acts.

OUTLINE SKETCH ,(PAKT II.) 315

division made by the Act of the Crown's assets
throughout Canada will be discussed most conven-
iently in dealing with the legislative power of the
Dominion and the provinces respectively over
Crown property.^^

«» See Chap. XXIX., post.

CHAPTER XVI.

PRB-CONFEDERATION CONSTITUTIONS.

Had the British North America Act created a
governmental organism new in all its parts, justifi-
cation might be lacking for historical retrospect.
Many parts, however, of the machinery of govern-
ment existing in the provinces prior to 1867 were
retained nnder the federating Act. Indeed, in two
of them, Nova Scotia and New Brunswick, the
governmental machinery was left almost intact, and
the same is true of British Columbia and Prince Ed-
ward Island upon their admission to the Union
New machinery was obviously required for the new
political creations, the federal government and the
governments of Ontario and Quebec; and the same
remark applies to the provinces since carved out of
the North- West Territories, namely, Manitoba, Al-
berta and Saskatchewan. The earlier provincial
constitutions which in the main features of their
organization are thus continued merit careful study,
and it is proposed to trace shortly the constitutional
history of those provinces, but so far only as is
necessary to a proper appreciation of the principles
which underlie the working of the Canadian Consti-
tution, federal and provincial, to-day.

To Nova Scotia belongs the distinction of being
the oldest of the British Colonies in North America
which now form part of the Dominion of Canada.
The preamble to one of the earliest Acts of the Nova
Scotia Assembly (1759)^ declares that ^* this pro-
vince of Nova Scotia or Acadie and the property
thereof did always of right belong to the Crown of
England, both by priority of discovery and ancient

»33 Geo. II., c. 3 (Nova Scotia).

PRE-CONFEDEKATION CONSTITUTIONS. 317

possession.'' The correctness of this declaration,
France would probably not admit; but the contest
would be of antiquarian interest merely, for by the
Treaty of Utrecht in 1713, * * Nova Scotia or Acadie,
with its ancient boundaries,'' was ceded by France
to Great Britain in the most ample terms of renun-
ciation. Nova Scotia, as thus ceded, included the
present province of that name (excluding Cape Bre-
ton), as well as what is now New Brunswick and
part of Maine. For many years after its acquisi-
tion Nova Scotia was practically under the military
rule of a Governor and council, whose authority was
defined in the Governor's Commission. In 1749, a
colonization scheme was set on foot and, anticipat-
ing an influx of settlers into the colony, the commis-
sion of Governor Cornwallis authorized the sum-
moning of ^* general assemblys of the freeholders
and planters within your government according to
the usage of the rest of Our colonies and planta-
tions in America." After much delay and the ex-
hibition of much unwillingness on the part of the
Governor and his council to act upon this direction,
a scheme of representation was settled and the first
parliament of Nova Scotia met at Halifax on the
2nd of October, 1758.

In 1763, the remaining portions of what are now
known as the Maritime Provinces, namely. Cape
Breton and Prince Edward Island, were ceded by
France to Great Britain by the Treaty of Paris;
and, by the proclamation which followed, were an-
nexed to ^' our Government of Nova Scotia."^

Six years later. Prince Edward Island was made
a separate province under a Governor, whose

^ Of Cape Breton's constitutional vicissitudes it is unnecessary
to make mention. They are set out in 5 Moo. P. C. 259 (In re the
Island of Cape Breton}. Finally in 1820 it was re-annexed to
Nova Scotia, of which province it has ever since formed, and now
forms, part.

318 CANADIAN CONSTITUTION : SELF-GOVERNMENT.

commission, also, authorized the calling together of
' * general assemblys of the freeholders and planters
within your government." The first parliament of
Prince Edward Island met in 1773.

In 1784, New Brunswick was also created a
separate province; and the commission of its first
Governor authorized in somewhat similar phrase
the summoning of a general assembly which shortly
thereafter met.

So far as the Maritime Provinces by the Atlantic
seaboard are concerned, their provincial legisla-
tures of to-day are the lineal descendants of those
early ^^ general assemblys."^

Quebec, then embracing, roughly speaking, terri-
tory now occupied by the present provinces of On-
tario and Quebec, was ceded by France to Great
Britain by the same Treaty of Paris (1763), which
secured to her Prince Edward Island and Cape
Breton. By the proclamation which followed, Que-
bec was erected into a separate province ; and, both
by the proclamation itself* and by the commission
to Governor James Murray, the institution of a
representative assembly was contemplated. For
reasons upon which it is unnecessary to enlarge
here, no such assembly was summoned. Not until
after the passage of the Constitutional Act, 1791,^*
dividing Quebec into the two provinces of Lower
and Upper Canada and providing for a separate
legislature for each, 3id such assemblies meet. The
first parliament of Upper Canada met at Niagara
on the 17th of September, 1792; that of Lower
Canada at Quebec a few months later. By the

'The documents relating to tlie early constitutions of the
Maritime Provinces are set out in Return No. TO, Can. Sess. Papers,
1883.

* See ante, p. 17.

•31 Geo. III., c. 31 (Imp.)

PRE-CONFEDERATION CONSTITUTIONS. 319

Union Act, 1840,^ the two provinces were re-united
under the name of Canada in a legislative union,
the severance of which was effected only by the
British North America Act, 1867. Under this Act,
the Canada of the Union Act was divided into the
present provinces of Ontario and Quebec, cor-
responding to the earlier provinces of Upper and
Lower Canada. respectively.

British Columbia, as it existed at the date of the
adoption by the Parliament of Canada of the Reso-
lutions for its admission to the Dominion, had not
a representative assembly and did not, therefore,
enjoy responsible parliamentary government. Its
introduction into the colony was then contemplated '
and, in fact, was actually accomplished before the
date (20th July, 1871) upon which the union took
effect. By an Imperial Order-in-Council of 9th
August, 1870, the Legislature of British Columbia
was so altered as to make it a ^* representative
legislature '^ within the meaning of the Colonial
Laws Validity Act, 1865.® Theretofore it had con-
sisted of a Governor and Legislative Council only,
the latter containing both Crown-appointed and
elective members. The appointed members, how-
ever, constituted a majority; and, in consequence, a
strong agitation had arisen in the colony in favour
of responsible government, under a wholly elective
assembly. The Imperial Order-in-Council of August,
1870, above mentioned, was avowedly passed in
order to bring this about. Under the Order-in-
Council, the elective members were constituted a
majority (9 to 6) of the Legislature^ which, there-
fore, became clothed with power under the Colonial

•3 & 4 Vict, c. 35 (Imp.)

' See Item No. 14 of the Terms of Union, as set out in the
Order in Council, admitting British Columbia to the Union. In
Appendix.

* See the Act in Appendix. See also ante, p. 38.

320 CANADIAN CONSTITUTION : SELF-GOVEENMENT.

Laws Validity Act, 1865, to alter its own Constitu-
tion. This it promptly did; the Legislative Council
was abolished and in its stead a legislative assembly
of wholly elective members was established.^ The
provincial legislature of to-day in British Columbia
is in its essential features but the continuation of
the legislature so established. This short statement
of the position of British Columbia will suffice to
explain why no further reference to that province
need be made in this chapter.

In making a survey of the forms of government
established in the various provinces in order to
learn their actual working, it will be convenient to
confine attention, in the first place, to the constitu-
tions established by royal prerogative ^^ in the Mari-
time Provinces and to treat later of the statutory
constitutions of the Upper Provinces. The survey,
it should again be premised, is taken in order to
show that, prior to Confederation, the Imperial
Government had in a tangible way — evidenced
partly by despatches, partly by instructions, partly
by statutory enactments, partly, perhaps, by long
disuse of power along certain lines — put upon
record its recognition of the necessary connection
which must exist between the legislative and execu-
tive departments of government, as well in the case
of a colony as in the case of the United Kingdom.

As a preliminary to this survey reference must
be made to what was, in the latter part of the
eighteenth and the earlier decades of the nineteenth
century, the accepted view of the British constitu-
tion. It was then chiefly commended because of
the complete separation, as was supposed, of the
legislative and executive departments. Legislative

» British Columbia Statutes, No. 147 of 34 Vict.
^^ See ante, p. 11, as to the position of the Crown in Council
(Imp.) in this connection.

PRE-CONFEDERATION CONSTITUTIONS. 331

supremacy resided in the parliament, executive
supremacy in the Crown. Opportunity for inter-
ference by parliament to control and regulate execu-
tive action was largely the result of the financial
necessities of the executive head of the nation; but,
to the extent to which the royal revenues rendered
the Crown independent of parliament, the govern-
ment of the nation was frequently carried on with-
out the aid of that body. How the change was
gradually brought about, until now the supremacy
of parliament over the executive is a clearly estab-
lished principle of the British constitution, is be-
yond the scope of this work to trace.' Shortly stated,
it was effected by the judicious use of the Commons '
control over the purse strings, as a means to secure
the consent of the Crown to, the relinquishment to
parliament of the most important of those common
law powers of the executive known as * [ the pre-
rogatives of the Crown.'' But in the latter part of
the eighteenth century, the government of Great
Britain was, to an extent very much larger than at
present, carried on by the exercise of these preroga-
tives. It was more largely an executive govern-
ment, and of no department was this more true than
of the colonial, ^* the Board of Trade and Planta-
tion." The very facts above alluded to — that for
very many years after the settlement of Nova
Scotia (practically until the British North America
Act) no legislative interference by the Imperial
parliament in the government of the Maritime Pro-
vinces took place; that provinces were enlarged,
divided, joined, all without Act of parliament; and
that, without Act of parliament, representative as-
semblies were established therein — ^make manifest
the extent to which the government of the early pro-
vinces was in the nature of executive government,

CAN. CON. — 21

322 CANADIAN CONSTITUTION : SELF-GOVERNMENT.

by prerogative. And yet not entirely so, for in a
celebrated case/ involving a consideration of the
proclamation of 1763, Lord Mansfield held that, al-
though on the acquisition of new territory by con-
quest or cession the Crown without parliament may
make laws for the government of the conquered or
ceded territory, nevertheless, on the grant to the
inhabitants of the right to make laws through a
representative assembly, the prerogative right of
the Crown to legislate for the internal government
of the colony is forever gone. Thereafter the Crown
stands in the same relation to the representative as-
sembly 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 Im-
perial parliament.^

So far, however, as related to the executive func-
tions of government, the theory of executive inde-
pendence which obtained in England was carried to
its practical result in the work of government in the
colonies. Theoretically and, indeed, legally, the
Crown, by virtue of its position as a constituent
branch of parliament, could prevent encroachment
by the legislature upon its prerogatives (in other
words, upon the executive department of govern-
ment), but in England the financial necessities of
the executive gradually led, as before observed, to
thd surrender to parliament, or at least to parlia-
mentary control, of the entire executive government
of the nation. The Crown occupied in the colonies
the same position as a constituent branch of the
legislature; but the financial necessities of the

^ Campbell v. Hall, Ck)wp. 204 ; relating to Grenada. See ante,
p. 17.

'See Re Lord Bishop of Natal, 3 Moo. P. C. (N.S.) 148. The
position of the Crown in Council (Imp.) in relation to colonial
government has already been largely discussed. See Chap. VIII.,
ante, p. 116 et seq.

PRE-CONFEDERATION CONSTITUTIONS. 323

executive government were, in those early colonial
days, so largely met by the revenues arising from
the sale of Crown lands, from fines, tolls, and other
royalties of various sorts, and, for the balance, pro-
vided for in the Imperial budget, that the executive
of a colony was to a large degree independent of the
colonial assembly.

That the early ^' assemblys ^' of the provinces
were intended to be 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 one comes to study somewhat
more closely the commissions of the early governors,
the constitutional charters of those provinces.

There is no essential difference in the terms of
these commissions. The first commission conveying
authority to summon an assembly in the provinces
now forming part of the Dominion was that to
Governor Cornwallis- of Nova Scotia.^ ''' For the
better administration of justice, and the manage-
ment of the public affairs of our said province, ' ' the
Governor was authorized to appoint " such fitting
and discreet persons as you shall either find there,
or carry along with you, not exceeding the number
of twelve, to be of our council in our said province.
As also to nominate and appoint, by warrant under
your hand and seal, all such other officers and minis-
ters as you shall judge proper and necessary for our
service and the good of the people whom we shall
settle in our said province until our further will and
pleasure shall be known. ' ' Subsequent appointments
to fill vacancies in the council were to be made by the
authorities in England. With the advice and con-
sent of this council, the governor was empowered
to establish Courts of Justice and to appoint all the

^ Hcyaston, Const. Documents, p. 9.

324 CANADIAN" CONSTITUTION : SELF-GOVERNMENT.

necessary ministerial and judicial officers in connec-
tion therewith. The public revenue was to be dis-
bursed by the Governor's warrant, issued by and
with the advice of the council, with this limitation,
however, that it was to be disposed of by the
governor ^^ for the support of the government, and
not otherwise.'' It is hardly to be wondered at,
having in view the mode of appointment, and of fill-
ing vacancies in this council, that the executive
government of those days came to be designated by
the familiar phrase, ** the family compact."

Turning now to the part played in government
by the assemblies: the commission to Governor
Cornwallis commanded him to govern the colony ac-
cording to his commission, the instructions there-
with, or to be thereafter given, '' and according to
such reasonable laws and statutes as hereafter shall
be made or agreed upon by you, with the advice and
consent of our council and the assembly of our said
province." The legislative power was in terms
ample : ^ ^ To make, constitute, and ordain laws . . .
for the publick peace, welfare, and good government
of our said province . . . and for the benefit of
us, our heirs, and successors; which said laws are
not to be repugnant, but, as near as may be, agree-
able to the laws and statutes of this our Kingdom
of Great Britain." All such laws, however, were
subject to disallowance by the Imperial authorities,
with no limitation as to the time within which such
disallowance might take place.

The position of the Crown as a constituent
branch of the assembly was recognized in a clause
noteworthy for the frank and undisguised fashion
in which it discloses the reason :

" And to the end that nothing may be passed or done by
our said council or assembly to the prejudice of us, our
heirs, and successors, we will and ordain that you, the said

PRE-CONFEDERATION CONSTITUTIONS. 325

Edward Cornwallis, shall have and enjoy a negative voice
in the making and passing of all laws, statutes, and ordin-
ances, as aforesaid/'

Tiie importance of the concession to the early
provinces of the right to frame the laws by which,
in local matters, they were to be governed, must
not be under-rated. If it cannot be considered as
in any fair sense a concession of the right of self-
government, it must at least be admitted that it fell
short only because of the theory which then obtained
that the two departments of government should be
kept strictly distinct and because of the inability of
the colonial legislatures to withhold supplies until
grievances in the executive department were
remedied.

The form of government introduced into Quebec
by Imperial statutes must now be examined. For
eleven years after the Treaty of Paris, the commis-
sion to Governor Murray and his successors (read
with the proclamation of 1763 J was the charter of
government; but, as already noticed, no assembly
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 in-
troduction (which was claimed to have 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
by the Imperial parliament. This statute revoked
the right to a representative assembly and lodged
both departments of government, legislative and
executive, in the hands of the governor and his
council ; with this provision, however, that the mem-
bers of the council were to be appointed from the

* 14 Geo. III., c. 83.

326 CANADIAN CONSTITUTION : SELF-GOVERNMENT.

inhabitantsi of the province. A perusal of the Act
discloses much milder checks on the legislative
power than in the case of the earlier commissions;
— no doubt because of the union of the legislative
and executive powers of government in the same
hands.

By the 13th section, the Governor and his coun-
cil were expressly prohibited from laying taxes or
duties within the province, with the exception of
local assessments for municipal purposes. By an
Act of the same session (c. 88), provision was made
for raising a revenue by means of duties on rum,
spirits, and molasses, to be disbursed by Imperial
officers. It will be referred to again.

By '' The Constitutional Act, 1791 ''— ^the King
having signified ^^ his Eoyal intention to divide his
province of Quebec into two separate provinces '' —
provision was made for the establishment in each
of a legislative council and assembly. Beyond giv-
ing the assembly so created the right to legislate as
to time, place, and manner' of holding elections to
the assembly, the Act gave the legislature no larger
measure of control over the executive than had been
conferred on the assemblies in the Maritime Pro-
vinces.

The consent of the Crown by its representative
in the colony to any Act of the colonial legislature
curtailing the power of the Crown in the exercise of
any prerogative right is as effective to that end as
is an Act of the Imperial parliament in similar
case;^ but, by reason of the refusal to concede to
the colonies the control of the revenues raised there-
in, the colonial assemblies were unable to force con-
sent to Acts in curtailment of prerogative. Not
being able to starve the executive, they were unable

* Exchange Bank v. Reg., 11 App. Cas. 157 ; 55 L. J. P. C. 5.

PRE-CONFEDERATION CONSTITUTIONS. 327

to hold the officers of that department to responsi-
bility for the due performance of their duties; and
whether they had or had not the confidence of the
representative branch of thef legislature was prac-
tically a matter of indifference to these executive
officers. The importance, therefore, of this question
of revenue and its expenditure — the power to make
provision for a revenue and to appropriate it when
raised — becomes more .and more apparent.

The treatment accorded by Great Britain to her
colonies in the matter of taxation was entirely regu-
lated by the view taken in England of the neces-
sities of British trade and commerce. At first, the
expense of governing the colonies was borne en-
tirely by the home government, but as early as
1672,^ the Imperial treasury levied tribute upon the
colonies by the imposition, by Imperial Act, of ex-
port duties on certain articles shipped from the
colonies for consumption elsewhere than in Eng-
land; the proceeds of which duties were, of course,
a set-off to the expense of government in those
colonies. During the century which followed. Im-
perial Acts were from time to time passed provid-
ing for the collection of both export and import
duties, but always as part and parcel of the regula-
tion' of trade and commerce. In 1763, permanent
provision was made with regard to these colonial
duties and it was provided that the net proceeds
thereof should be reserved for the disposition of the
Imperial parliament '' towards defraying the neces-
sary expenses of defending, protecting, and secur-
ing the British colonies in America. ^ '

This, then, was the position of affairs at the time
when regular forms of civil government began to
be established in Nova Scotia, Prince Edward

« 25 Car. II., c. 7.

328 CANADIAN CONSTITUTION : SELF-GOVERNMENT.

Island, New Brunswick, and Quebec. The abandon-
ment by the Imperial parliament of the principle
that these duties should only be imposed when
necessary for the due regulation of Imperial trade
and commerce, and the extension of the Imperial
power of taxation to matters of excise — to laying
tribute, in other words, on the internal trade of a
colony — and the consequent loss of the southern
half of this continent, is a familiar story. During
the progress of the struggle, but too late to win
back the revolting colonies, the Imperial parliament
passed the celebrated Eenunciation Act of 1778,^ by
which it was declared and enacted that:

" The King and Parliament of Great Britain will not
impose any duty, tax, or assessment whatever, payable in
any of his Majesty's colonies, provinces, and plantations in
North America or the West Indies; except only such duties
as it may be expedient to impose for the regulation of com-
merce ; the net produce of such duties to be always paid and
applied to and for the use of the icolony, province, or plan-
tation in which the same shall be respectively levied, in such
manner as other duties collected by the authority of the re-
spective general courts or general assemblies of such colony,
province, or plantation, are ordinarily paid and applied.^'

This principle was followed until the free trade
campaign in England led to the abandonment of the
system of taxing trade for the benefit of trade, and,
with it, the regulation of colonial tariffs by British
legislation.

During this period, however, the practical re-
sult of the colonial system was this: With the ex-
ception of such sums as the colonial assemblies were
minded to raise (usually by the imposition of
customs duties) for public improvement and to

'18 Geo. III., c. 12. This Act is, of course, powerless to bind
the Imperial parliament; but it is a most emphatic expression of
a * conventional " rule to be thereafter followed. .

PRE-CONFEDEKATION CONSTITUTIONS. 329

promote settlement, the revenues which came to the
hands of the executive were, (1) the proceeds of
customs, excise, and license duties, levied under Im-
perial Acts, and (2) the hereditary, territorial, and
casual revenues of the Crown, consisting of the pro-
ceeds of the sale or lease of the * ^ waste ' ' lands in
the colonies, fines, tolls, etc. The colonial legisla-
tures could, of course, and did insist on retaining
power of appropriation over the revenues arising
under colonial Acts, and, so far as these revenues
were concerned, could withhold supplies. But their
action in such case made no difference to the execu-
tive, however it might do harm to the colony; the
cost of the administration of justice and of civil
government (including the salaries of the entire
executive staff, administrative and judicial) was
paid out of the other two sources of revenue, and
over these the colonial assemblies had for many
years no power of appropriation. To secure control
of the executive — to make them feel responsibility —
it was indispensably necessary to get control of
these revenues and their appropriation; and the
history of the growth of the principle of '^ Eespon-
sible government *' is the history of the gradual ac-
quisition by the colonial legislatures of the right to
appropriate revenue from whatever source within
the colony arising. The '* tenure-of -office ^* ques-
tion practically depended upon this question of con-
trol over the purse strings.

In all the provinces, the real issue was somewhat
obscured by reason of the fact that under the then
arrangement the legislative council, or second cham-
ber, acted as a shield to the governor and his execu-
tive council, and was interposed to bear the brunt
of all attacks upon executive methods. In the earlier
stages of colonial history, the executive council was
a branch of the legislature, and it always continued

330 CANADIAN CONSTITUTION : SELF-GOVERNMENT.

potentially so, because its members formed the in-
fluential portion of the Crown-appointed legislative
council. This position of affairs, however, gave the
disputes between the assembly and the executive the
appearance of being disputes between the two
branches of the legislature ; and it is not surprising,
therefore, to find that the efforts of Howe, Wilmot,
Papineau, and Baldwin were directly and ostensibly
bent to secure reform in the constitution of the
legislative council.^ The real issue, however, was
the question of executive responsibility, and that
question largely depended upon 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 work-
ing 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 machinery and dis-
cern the true principle of the British system, to
point out how that same principle could be made
effective in colonial government.

The first concession gained was of the power to
appropriate the proceeds of Imperial tariffs in
force in the colonies. As far back as the Constitu-
tional Act, 1791, this power of appropriation was
expressly given to the legislatures of Upper and
Lower Canada over the proceeds of all customs
duties levied as part of the commercial policy of the
Empire. But the only Imperial tariff Act then in
force in Canada, was the Act of 1774,^ a revenue Act ;

" Sir John Bourinot, " Responsible Grovernment in Canada " — a
paper read before the National Club, Toronto, during the winter of
1890-91, and published as ' Maple Leaves," p. 43.

» See ante, p. 326.

PRE-CONFEDERATION CONSTITUTIONS. 331

and because that Act was thought not to come
within the terms of the Constitutional Act, 1791, ex-
press legislation was necessary to give the colonial
legislature control over the revenue arising under
it. This was not obtained until 1831.^"

For many years, however, in all the provinces,
the ^^ hereditary, territorial, and casual revenues ''
were amply sufficient to pay the salaries of all the
executive stalf, and these salaries the legislature
had power neither to fix nor withhold. Secure in
the enjoyment of the emoluments of office, the exe-
cutive were able to thwart the wishes of the popular
branch of the legislature and to ignore its claim to
control and regulate their mode of conducting
public business.

The history of the struggles, which in the Upper
Provinces culminated at one time in open rebellion,
and in all resulted in the firm establishment of
responsible government, is beyond the scope of this
work; but it is curious to note that the contempor-
ary statutory record^ appears in Acts relating to
colonial control of colonial finances — ^the ^ ^ tenure of
office '* question appearing only in despatches, in-
structions, etc. Not to dwell at undue length upon
this point : first to New Brunswick and afterward to
Canada (1847) and Nova Scotia (1849) full control
over the revenues from all sources was conceded;

*n & 2 Wm. IV., c. 23. See Houston "Const. Doc." p. 106;
Andrew v. White, 18 U. C. Q. B. 170.

n & 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 & 16
Vic, c, 39 (Imp.) 17 & 18 Vic, c, 118 (Imp.). For historical
statements on this subject see Mercer v. Atty.-Gen'l. of Ontario.,
5 S. C. R. at p. 700, et seq., per Grwynne, J.: Ontario Mining Co.
V. Seybold, 31 O. R. 386, per Boyd, C; Algoma Central Ry. Co. v.
Reg., 7 Exch. C. R. 239, per Burbidge, J.; Todd " Pari. Gov't in
Brit. Col.," pp. 25-6, 169, et seq. As to the disposal of Crown
lands, see also Cunard v. Reg., 42 S. C. R. 88.

332 CANADIAN CONSTITUTION : SELF-GOVERNMENT.

and, having that full control, the Legislative As-
semblies slowly but surely overcame the stubborn
resistance or active opposition of the governors of
the early 'forties, and the principle of executive
responsibility was firmly and permanently estab-
lished in all the pre-Confederation provinces.

The nature of the constitutions existing in the
provinces immediately prior to the coming into
force of the British North America Act may now,
perhaps, be defined with some approach to accuracy.
What Lieut.-Gov. Archibald has said,^ in reference
to the Constitution of Nova Scotia is equally applic-
able to the other maritime provinces : ^ * No formal
charter or constitution ever was conferred, either
on the province of Nova Scotia or upon Cape Breton
while that island was a separate province. The con-
stitution of Nova Scotia has always been considered
as derived from the terms of the Eoyal commissions
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, as-
sented to by the Crown; the whole to some extent
interpreted by uniform usage and custom in the
colony. ' '

In (old) Canada, the form of government was
prescribed by the Act of Union.^ But as to all the
provinces, it can be truly said that their constitu-
tions were modelled on the pattern of the parent
state. In outward form, there is a close resemblance
between the British constitution and the constitu-
tion of those provinces — the same single executive,
the same legislative machinery (even to a second
chamber), with about the same apparent connection

2 Can. Sess. Papers, 1883, No. 70.
^3 & 4 Vic. c. 35 (Imp.)

PKE-CONFEDEEATION CONSTITUTIONS. 333

between the two departments of government. And
upon inquiry further, it is found that just as in the
case of the Imperial parliament, so here in the case
of the pre-Confederation provinces, one will look in
vain for any statute laying down the rules which
should govern in the matter of the formation, the
continuance in office, or the retirement of the Cabi-
net. Constitutional usage had in the parent land
gradually culminated in the full recognition of the
principle of executive responsibility to parliament,
and this principle was by the simple method of in-
structions to the Governors introduced as the work-
ing principle of the provincial constitutions.*

Of the causes which led to the adoption by the
provinces of the Quebec Eesolutions, upon which the
British North America Act is founded, it is for the
historian to treat. In agreeing to the establishment
of a *^ general '' government, charged with matters
of common concern, the provinces resolved that
such general government should be modelled, as
were their own governments, on that of the United
Kingdom, and that its executive authority should
be administered according to the well-understood
principles of the British constitution. Nowhere in
the British North America Act is to be found any
section laying down that the ministry, either federal
or provincial, shall hold office only so long as it can
command the confidence of the legislature. Such is,
of course, the unwritten but undoubted constitu-
tional rule, and no significance can be attached to its
absence from the British North America Act. '^ It
is evidently impossible to reduce into the form of a
positive enactment a constitutional principle of this
nature.''^ It may, therefore, be unhesitatingly

* Extracts from the despatches from the Col. Secy, to Lord
Sydenham are given in the author's " Hist, of Canada," at p. 248.

'^Lord Russell's famous despatch of Sept., 1839, introducing
"Responsible Government" into Upper Canada: Can. Sess. Jour.,
1841, pp. 390-6, App. BB.

334 CANADIAN CONSTITUTION : SELF-GOVERNMENT.

ajQfirmed of both the Dominion and the provincial
governments :

" That great body of unwritten .conventions, usages, and
understandings, which have in the course of time grown 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 the federation." ®

^Bourinot " Maple Leaves," p. 37; see note ante, p. 330.

CHAPTER XVII.

'' A Constitution Similab in Principle to that of
THE United Kingdom/'

The preamble to the British North America Act
recites that the provinces of Canada, Nova Scotia
and New Brunswick, had expressed their desire ^
for a federal union into one Dominion '^ with a con-
stitution similar in principle to that of the United
Kingdom/' and 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 Act is in its preamble
a notable instance of '' official mendacity:''^ and
that its effect has been to establish in Canada a
system of government presenting features analo-
gous rather to those of the United States than to
those of the United Kingdom. This view of the
Canadian Constitution is quite erroneous and want-
ing in a proper regard for the underlying principle
in conformity to which the pre-Confederation pro-
vinces had been governed and the Dominion and its
federated provinces have since been governed — the
principle of executive responsibility to the people
through parliament, which is the chief distinguish-
ing feature of the British form of government, the
Empire over, as contrasted with that of the United
States. Because the union of the provinces is
federal, indicating, ex necessitate,^ some sort of a

^In the Quebec Resolutions; see Appendix.

^ Dicey (Prof. A. V.)— "The Law of Constitution," 3rd ed., p.
155. Modified in later editions to " diplomatic inaccuracy." See
the criticism of this passage by Burton, J.A., in the Pardoning
Power Case, 19 O. A, R. at p. 39.

» Per Ritchie, CJ.—Yalin v. Langlois, 3 S. C. R. 1, at p. 10.

336 CANADIAN CONSTITUTION : SELF-GOVERNMENT.

division of the field of governmental action and an
allotment of some part of that field to a central
government, the conclusion is rashly reached that
these matters of outward and superficial resem-
blance between the Canadian system of government
and that of the neighbouring Eepublic are sufficient
to stamp them as essentially alike. A closer ex-
amination of the Act itself, coupled with some slight
knowedge of the pre-existing provincial constitu-
tions and their practical working, would have suf-
ficed to show that, in essentials, the constitution of
Canada is not like the constitution of the United
States, but is in very truth ^ * similar in principle to
that of the United Kingdom.''

To arrive at an intelligent conclusion upon this
much-discussed question — to which form of govern-
ment, the British or the American, does our govern-
ment in principle conform? — one must necessarily
first formulate in his own mind some definite notion
of the difference in principle between these two sys-
tems. It may, perhaps, turn out that a candid com-
parison will disclose that the difference between
them should hardly be characterized as a difference
in principle — that in each the same motive power is
applied to the same end, with some difference only
in the mode of application.

The British Empire and the American Union
consist, each of a central or national government, in-
ternationally recognized, side by side with subordin-
ate local governments. In the case of the United
States, the central or Federal government has al-
ways received treatment as a tangible national
government over one compact territory; but the
British constitution has, as a rule, been looked at
as the constitution of Great Britain rather than as
an Imperial constitution. The reason is partly
geographical, partly historical. The Imperial con-

CONSTITUTION SIMILAR TO THAT OF UNITED KINGDOM. 337

stitution, as it to-day exists, is the result of the
gradual application to the government of an ex-
panding empire of those principles of local self-
government which were adopted, at the start, as the
basis of the federal union of the American colonies.
Thirteen colonies, mutually independent, having
joined to destroy the common tie of subjection to
the British Crown, but desiring still to perpetuate
their union of race and common interest, faced the
task of forming a central or union government in
such fashion as to reconcile national unity with
those ideas of the right of self-government which
had been the cause of their separation from the Em-
pire. Schooled by the failure of the '' Articles of
Confederation '^ to work this result, they formu-
lated the '^ Constitution of the United States,"
under which they have lived and thrived for so
many years.* That which by revolution and a formal
written convention they accomplished has been
brought to pass throughout the British Empire by
peaceful evolution and unwritten conventions. The
true federal idea is clearly manifest, to reconcile
national unity with the right of local self-govern-
ment; the very same idea that is stamped on the
written constitution of the United States. The dif-
ference of position historically is quite sufficient to
account for the difference of position legally. Given
the independent self-governing communities which
made up the American Commonwealth, the national
government was super-imposed to secure unity, but
upon conditions preservative of local autonomy.

* " I think and believe that it is one of the most skilful works
which human intelligence ever created ; is one of the most perfect
organizations that ever governed a free people. To say that it
has some defects is but to say that it is not the work of Omni-
science but of human intellects." — Sir John A. Macdonald, Oonfed.
Debates, 32.

CAN. CON. — 22

838 CANADIAN CONSTITUTION : SELF-GOVERNMENT.

With US, on the other hand, the central government
stands historically first, but the various communities
which grew out of it have now as full a measure of
local self-government as is enjoyed by the individual
States which together form the neighbouring Ee-
public. The sum total of conceded power at any
given period will be found to be commensurate with
the opinion prevalent at such period as to the
proper line of division between Imperial and local
concerns.

Under both the British and the United States
systems the Courts charged with the enforcement of
law must decline to recognize the validity of any
act, legislative or executive, done by any person or
body of persons, 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 notor-
iety, and there is a no less rigorous enforcement of
the legal limits set to interference, otherwise than
by Imperial legislation, with colonial rights of self-
government.^

The diiference in principle between the British
and the American systems of government is not in
respect of the federal idea — that is common to
both ; nor in respect of the rule of law, the enforce-
ment by the Courts of the law of the constitution —
that, too, is common ground. But in the machinery
of government a difference runs through the
national and local governments alike of these two
systems. The diiference in principle is in the con-
nection between the law-making and the law-execu-
ing departments of government. In both the British
and the American systems, the body which makes
the law must necessarily be supreme over the body

* Campbell v. Hall, Cowp. 209 ; and see Lenoir v. Ritchie, 3 S.
C. R. 575, 1 Cart. 488.

CONSTITUTION SIMILAR TO THAT OF UNITED KINGDOM. 339

which simply carries out the law when made. In
the British system not only is this supremacy re-
cognized, but, by a certain arrangement of the
machinery of government, the will of the law-mak-
ing body is made to sympathetically affect and con-
trol 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 of the legisla-
ture necessarily exists in the United States system ;
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 ef-
fort to prevent co-operation and sympathy.

What then is this arrangement of machinery, in
the British system? Of late years it has been found
necessary to revise somewhat our ideas concerning
the British constitution. The older authorities
dwell upon the division of power between the legis-
lative and executive departments of government,
and the subdivision, in turn, of the legislative de-
partment into King, Lords, and Commons; and
they ^ dilate with quiet enthusiasm upon the
'^ checks and balances " provided in and by such a
division and subdivision of power. Gradually, how-
over, this *^ literary theory," safe-guarding the ark
of the constitution with its supposed division of
sovereignty into departments, came to be recog-
nized as an incomplete and, in truth, wholly erron-
eous explanation of the working of the constitution.
Of comparatively recent writers, the late Walter
Bagehot, in his most valuable essays, attacks with
vigor this ^' literary theory " with its supposed
checks and balances, and arrives at this conclusion :

• E.g. CMtty, " On the Prerogatives of the Crown," at p. 2.

340 CANADIAN CONSTITUTION : SELF-GOVEENMENT.

" 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 onr constitution consists in the entire separation of the
legislative and executive authorities, but in truth its merit
consists an their singular approximation. The connecting
link is the Cabinet. By that new word we mean a commit-
tee 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 in-
directly. . . . The Cabinet, in 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 hucMe
which fastens, the legislative part of the State to the exe-
cutive part of the State. In its origin it belongs to the one,
in its functions it belongs to the other."

And he proceeds further to show how, by this
practical fusion, this result is clearly attained —
that the will of the people, constitutionally ex-
pressed through their elected representatives in the
House of Commons, controls both the law-making
and the law-executing power, and is, in very fact,
the ultimate power in government. The responsi-
bility of the executive to the people through the
elective branch of parliament is the essential prin-
ciple of the British constitution.

Turning now to the system of government across
the border, one finds the same principle of ultimate
responsibility to the people; but it is worked out
in a very different and much less satisfactory way.
It is not very far from the truth to say that the
United States system is an attempt to work out the
^' literary theory '^ of the British constitution in
actual practice. Take as an example the national

CONSTITUTION SIMILAR TO THAT OF UNITED KINGDOM. 341

government at Washington, for the type is persist-
ent throughout both the national and the local gov-
ernments of the American Union, just as the British
type is persistent throughout both the national and
local governments of the British Empire. How it
came about that the [^ literary theory " of the
British constitution was embodied in the constitu-
tion of the United States has been the subject of
frequent enquiry, and a quotation is ventured from
a recent American work of great merit :^

"The Convention of 1787 was composed of very able men
of the English-speaking race. They took the system of gov-
ernment with which they had been familiar, improved it,
adapted it to the circumstances with which they had to deal,
and put it into successful operation. . . . It is needful,
however, to remember in this connection what has already
been alluded to, that when the Convention was copying the
English constitution that constitution was in a stage of
transition, and had by no means fully developed the features
which are now recognized as most characteristic of it.
. . . . The English constitution 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 tools of a ministry of
Royal favorites, who were kept out of sight behind the
strictest confidences of the Court. It was notorious that
the subservient parliaments of the day represented the
estates and the money of the peers and the influence of the
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 subservient, and an executive which could not
be despotic; and it was equally to have been expected that
they should regard an absolute separation of these two great
branches of the system as the only effectual means for the
accomplishment of that much desired end."

^ Prof. Woodrow Wilson, " Congressional Government," 4th ed.,
p. 307. The above was first written in 1892 when it was not
anticipated that the author of "Congressional Government"
would one day become President of the United States.

342 CANADIAN CONSTITUTION : SELF-GOVERNMENT.

Prof. Wilson, indeed, claims that Congress is
now supreme over the executive of the federal gov-
ernment, and '^ subjects even the details of admin-
istration to the constant supervision, and all policy
to the watchful intervention, of the Standing Com-
mittees of Congress '^; but he laments the lack of
executive responsibility to Congress. The Presi-
dent and the heads of the chief executive depart-
ments of government stand apart, isolated from
Congress; bound to execute its laws, but with no
greater influence in securing the passage of laws in
aid of effective administration, or in preventing
the passage of laws which may hamper administra-
tion, than is possessed by any other private citi-
zen. By the terms of the Constitution itself they
are debarred from* seats in Congress,^ and so have
no initiative in legislation. On the other hand.
Congress must go to the full extent of law-making
in order to exercise its supremacy over the execu-
tive. But the trouble may be, not in the Act itself,
but in its execution; no matter to what extent of
detail an Act may make provision, an executive
completely, out of sympathy with the law will not
be a very satisfactory administrator of it. In short,
there is no guarantee of that harmony between the
legislative and executive departments, that sym-
pathy and co-operation, without which there must
necessarily arise constant friction, lack of contin-
uity in policy, and even a deadlock in the adminis-
tration of public affairs. Congress and the execu-
tive are responsible, each directly to the people;
but the retention of the confidence of Congress is in
no way a condition to the retention of office. Con-
gress has no such power to depose the executive as
has the House of Commons in the British constitu-
tional system. Moreover, the constant possibility

« Art. 1, s. 6.

CONSTITUTION SIMILAR TO THAT OF UNITED KINGDOM. 343

of party diversity between the Executive and Con-
gress renders it very difficult to fasten responsibil-
ity upon either. This difficulty is thus strongly put
by Prof. Wilson : ^

" Is Congress rated for corrupt, or imperfect, or foolish
legislation? . . . Does administration blunder and run
itself into all sorts of straits? The Secretaries hasten to
plead the unreasonable or unwise commands 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 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 bungling 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?"

In the preface to the same work, the distinction
between the British and, the American systems of
government is thus shortly stated:

" 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 Monarchical
governments, but between Congressional and Parliamentary
governments. Congressional government is Committee gov-
ernment; Parliamentary government is government by a re-
sponsible Cabinet Ministry.

'' These are the two principal types which present them-
selves for the instruction of the modern student of the prac-
tical in politics: administration by semi-independent execu-
tive 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 ser-
vants of a legislature virtually supreme in all things."

® Congressional Government, p. 283.

344 CANADIAN" CONSTITUTION : SELF-GOVERNMENT.

After this comparison of the two leading types
of Anglo-Saxon self-government, it is easy to decide
to which the Canadian Constitution conforms.

If, so far as the right of local self-government
has been conceded, power is exercisable, the law-
making power with the same efficacy, and the law-
executing power under the same principle of re-
sponsibility to parliament and, through parliament,
to the electorate, as in the United Kingdom, the
preamble to the British North America Act is
strictly accurate.

To any one who has knowledge of the constitu-
tions of the provinces piior to Confederation,^^ it is
unnecessary to point out that since the concession
of *^ Eesponsible Government" and up to 1867
those constitutions were '* similar in principle to
that of the United Kingdom,'^ and as to them all
that has been said in reference to the British Con-
stitution might be repeated.

Nor will it be contended that, under the British
North America Act, the sum total of our rights of
self-government has been lessened. Stronger lan-
guage could not be used than that of Earl Lore-
burn, speaking for the Privy Council in a recent
case: ^

" In 1867, the desire of Canada for a definite Constitu-
tion embracing the entire Dominion was embodied in the
British North America Act. Now there can be no doubt
that under this organic instrument the powers distributed
between the Dominion on the one hand and the Provinces
on the other hand cover the whole area of self-government
within the whole area of Canada. Ic would be subversive
of the entire scheme and policy of the Act to assume that
any point of internal self-government was withheld from
Canada."

^^ See Chap. XVI., ante, p. 331, et seq.

^References Case (1912), A. C. 571; 81 L. J. P. C. 210.

CONSTITUTION SIMILAR TO THAT OF UNITED KINGDOM. 345

And no one who knows the actual working of
the machinery of government in Canada will con-
tend that either in the Dominion or the various pro-
vinces there exists other than responsible parlia-
mentary government.

It has been usual to speak of the division of
power under a federal system. In truth, this form
of expression is most inapt and very inaccurately
describes the division of labor which really exists.
Its thoughtless use has been fruitful of much mis-
conception of the true line or principle of division.
There is in the system no division of power in the
sense in which such division was, by the older
writers, erroneously assumed to exist under the
British form of government; and certainly none in
the sense in which such division does actually exist
in the individual systems of the United States. The
true line of division is this: The various subject
matters with which government may have to deal
are divided into two great divisions ^ — matters of
general and matters of local concern — but to each
of such divisions the full equipment of power, leg-
islative and executive, is given. The Dominion gov-
ernment and the Provincial governments are car-
ried on (each within the sphere of its legitimate
operation) on the same principle as is the govern-
ment of the United Kingdom. Jurisdiction as to
subject matter conceded, the will of the legislature.
Dominion or Provincial, is supreme over the execu-
tive in the same sense as the will of the Imperial
parliament is supreme over the executive in the
United Kingdom. The legal principle, so strongly
insisted upon by Dr. Dicey — the supremacy of par-
liament— as clearly appears here as in the United
Kingdom; while, for the ^^ conventional ^' aspect of

'See e.g., Bank of Toronto v. Lamb, 12 App. Cas. 587; 56 L. J.
P. C. 87.

346 CANADIAN CONSTITUTION : SELF-GOVERNMENT.

the question, it is only necessary to point out that,
as in the United Kingdom so here, the ultimate re-
sponsibility of the executive to the electorate
through the elective branch of the legislature is
clearly established in relation as well to each pro-
vincial as to the Dominion government. The elec-
tive branch of the legislature (Dominion Parliament
or Provincial Legislative Assembly) represents,
and is directly responsible to, the electorate — as in
the United Kingdom. The Executive Committee
(the cabinet), composed of members of the legisla-
ture, hold their positions by virtue of, and contin-
gently upon, the retention of the confidence of the
elective branch of that Legislature and are, there-
fore, practically directly responsible to that elec-
tive branch — as in the United Kingdom. The same
chain of connected relation, the same source of
motive power, and the same method of applying
that power to the work of government, exists in
each of our governmental bodies as in the United
Kingdom.

CHAPTEE XVIII.

A Chaeter of Self- Govern me NT.

In most of the cases which have arisen under
the British North America Act the problem has been
to reconcile those sections of the Act which divide
the field between the Dominion and the provinces
for purposes of legislation ; and to that end a num-
ber of principles or rules of interpretation have
been laid down as peculiarly applicable in dealing
with such cases. But the cases are comparatively
few in which the question is touched as to the view
to be taken of the Act as being, what it undoubtedly
is, a great constitutional charter. The Privy Coun-
cil, indeed, has laid down ^ that Courts of law must
treat the provisions of this Act by the same methods
oi construction and exposition which they apply to
other statutes. But theie are statutes and statutes;
and the strict construction deemed proper in the
case, for example, of a penal or taxing statute or
one passed to regulate the affairs of an English
parish,^ would be often subversive of parliament's
real intent if applied to an Act passed to ensure
the peace, order and good government of a British
colony. Never perhaps was the matter better put
than by Edward Blake in his argument before the
Privy Council in the Indian Title Case:^

" The written Constitution of Canada in two aspects
demands a very large, liberal and •comprehensive interpre-

^Bank of Toronto v. Lam'be, 12 App. Cas. 575; 56 L. J. P. C. 87.

' " In endeavouring to arrive at the meaning of a great statute
which confers a Constitution upon a federal state the subject must
be approached in a very different frame of mind from that in
which one would consider the rights of a parochial authority." —
Per Martin, J., in Atty.-Gen. B. C. v. E. d N. Ry. (190O), 7 B. C. 221.

' 8t. Cath. Milling Co. v. R., 14 App. Cas. 46; 58 L. J. P. C. 54.

348 CANADIAN CONSTITUTION : SELF-GOVERNMENT.

tation, a survey in which the interpreter shall look both be-
fore and after, if he is to effectuate and not to frustrate the
objects of the statute. First, the Act is an attempt — per-
haps a somewhat ambitious attempt — to create in one short
document a very complicated written Constitution, dealing
actually with five political entities, and potentially with
many more; and dealing not merely with their creation or
re-organization, but also with the distribution of political,
legislative and executive power, and with the adjustment of
their revenues and their assets. It is therefore an Act in its
nature dealing with many topics, as has been truly said, of
high political import. Thus, its very nature requires a
large, comprehensive and liberal spirit of interpretation. But
its frame also demands the same spirit. We know well that
even where the draftsman has used an abundance of words,
he is not always able to make his meaning clear; but upon
this occasion there has been no attempt to expand the mean-
ing of the draftsman; the attempt has rather been to deal
in the fewest possible words with subject-matters of the
highest possible importance. One sentence, one phrase, even
one word, deals with a whole code or system of law or poli-
tics, disposes of national and sovereign attributes, makes
and unmakes political communities, touches the ancient
liberties and the private and public rights of millions of
free men, and sets new limits to them all. And, therefore,
we are bound, in attempting to ascertain the meaning of
these clauses, to become very conversant with the surround-
ings, to allow due weight to the conditions, and to be
thoroughly informed with the spirit of the law, in order
that wo, may so read it as to accomplish its great intents.'^

Legislative Power in Canada.

Local self-government has always been favoured
of British policy ; and from the time of Lord Mans-
field's celebrated judgment in the case of Grenada*
down to the present the judgments of British
Courts have taken cognizance of the policy which
lay behind the grant of representative institutions

^Camplell v. Hall, Cowp. 209; see ante, p. 17.

A CHARTER OF SELF-GOVERNMENT. 349

to the various colonies. The question has chiefly
been as to the nature and extent of the legislative
power conferred; but the determination of this
question determines all else. The sanction of a law
is executive action and any attempt to divorce the
two under a system of responsible parliamentary
government would be foredoomed to failure. Their
spheres dre essentially co-extensive and comple-
mentary, and authorities which define the limits of
the one equally in principle assert the same limits
for the other. There is a clear and emphatic line
of decisions by the Privy Council that, within the
ambit of colonial authority, the legislative power
of colonial legislatures is a plenary power to make
laws having within the colony the force and effect
of sovereign legislation. Within that ambit the
power is as great and of the same nature as that
of the parliament of the United Kingdom itself.
First affirmed as to the assembly of Jamaica,^ the
proposition has been repeated as to the legislature
of India,® of Ontario,^ of New South Wales,^ of each
of the Canadian provinces,^ of Victoria,^" and of the
parliament of Canada ; ^ and may now be considered
a principle permanently embodied in the constitu-
tion of the Empire.

Provincial Legislative Poiver.

In Canada, it is true, question has been raised
as to the position of provincial legislatures as con-
stituted under the British North America Act, but

'^Phillips V. Eyre, L. R. 6 Q. B. 20; 40 L. J. Q, B. 28. See
ante, p. 93.

« R. V. Burah, L. R. 3 App. Cas. 889. See ante, p. 94.
'Hodge v. R. (1883), 9 App. Cas. 117; 53 L. J. P. C. 1.
^Powell V. Appollo Candle Co., 10 App. Cas. 282; 54 L. J. P. C. 7.
^Liquidator's Case (1892), A. C. 437; 61 L. J. P. C. 75.
'''Webb V. Outrim (1907), A. C. 81; 76 L. J. P. C. 25.
^Riel V. R., 10 App. Cas. 675; 55 L. J. P. C. 28.

350 CANADIAN CONSTITUTION : SELF-GOVERNMENT.

iliat they, too, are sovereign legislatures is no longer
open to question. The Privy Council has thus de-
cisively ruled upon the matter : ^

"When the British North America Act enacted that
there should be a legislature for Ontario and that its legis-
lative assembly should have exclusive authority to make laws
for the province and for provincial purposes in relation to
the matters enumerated in section 92, it conferred powers
not in any sense to be exercised by delegation from or as
agents of the Imperial Parliament, but authority as plenary
and as ample within the limits prescribed by section 92 as
the Imperial Parliament in the plenitude of its power pos-
sessed and could bestow. Within these limits of subjects
and area the local legislature is supreme and has the same
authority as the Imperial Parliament or the Parliament of
the Dominion would have had under like circumstances to
confide to a municipal institution or body of its own crea-
tion authority to make by-laws or resolutions as to subjects
specified in the enactment and with the object of carrying
the enactment into operation and effect. ... It was ar-
gued at the bar that a legislature committing important re-
gulations to agents or delegates effaces itself. That is not
so. It retains its powers intact and can, whenever it pleases,
destroy the agency it has created and set up another or take
the matter directly into its own hands. How far it shall
seek the aid of subordinate agencies, and how long it shall
continue them, are matters for each legislature, and not for
courts of law, to decide."

and in the Liquidator's Case,^ in which New Bruns-
wick was concerned, the above passage is repeated,
and this is added:

'^ The Act places the constitution of all provinces within
the Dominion on the same level; and what is true with re-
spect to the legislature of Ontario has equal application to
the legislature of New Brunswick. It is clear, therefore,
that the provinoial legislature of New Brunswick does not

^ Hodge v. R. (1883), 9 App. Gas. 117; 53 L. J. P. C. 1.
' (1892), A. C. 437; 61 L. J. P. C. 75.

A CHAETER OF SELF-GOVERNMENT. 351

occupy the subordinate position which was ascribed to it in
the argument of the appellants. It derives no authority
from the government of Canada, and its status is in no way
analogous to that of a municipal institution, which is an
authority constituted for purposes of local administration.
It possesses powers, not of administration merely, but of
legislation in the strictest sense of that word; and, within
the limits assigned by section 92 of the Act of 1867, these
powers are exclusive and supreme." — per Lord Watson.

In this matter, therefore, no distinction can be
drawn between the Dominion parliament and pro-
vincial legislatures.* The principle of plenary
powers has been invoked to uphold alike the local
option features of the Canada Teniperance Act ^
and the delegation of power to license commission-
ers under provincial Liquor License Acts.®

Confining attention now to the government of
Canada and the Canadian provinces, this line of
authority is for the present closed by a judgment
of the Privy Council in 1912,^ affirming the validity
of those sections of the Supreme Court Act (Can-
ada) which provide that the Governor-General in
Council may refer important questions to that
tribunal for hearing and report:

" In 1867, the desire of Canada for a definite Constitu-
tion embracing the entire Dominion was embodied in the
British North America Act. Now there can be no doubt
that under this organic instrument the powers distributed
between the Dominion on the one hand and the provinces
on the other hand cover the whole area of self-government
within the whole area of Canada. It would be subversive
of the entire scheme and policy of the Act to assume that

*Bryden's Case (1899), A. C. 580; 68 L. J. P. C. 118.
'RusselVs Case (1882), 7 A. C. 829; 51 L. J. P. C. 77.
'Hodge v. R. (1883), 9 A. C. 117; 53 L. J. P. C. 1; and see also
R. V. Carlisle (1903), 6 Ont. L. R. 718.

'Re References (1912), A. C. 571; 81 L. J. P. C. 210.

352 CANADIAN CONSTITUTION : SELF-GO VEKNMENT.

any point of internal self-government was withheld from

Canada

"In the interpretation of a completely self-governing
Constitution founded upon a written organic instrument,
such as the British Korth America Act, if the text is ex-
plicit the text is conclusive, alike in what it directs and what
it forbids. When the text is ambiguous — as, for example,
when the words establishing two mutually exclusive juris-
dictions are wide enough to bring a particular power within
either — recourse must be had to the context and scheme of
the Act. Again, if the text saye nothing expressly, then it
is not to be presumed that the Constitution withholds the
power altogether. On the contrary, it is to be taken for
granted that the power is bestowed in some quarter unless
it be extraneous to the statute itself — as, for example, a
power to make laws for some part of His Majesty^s dom-
inions outside of Canada — or otherwise is clearly repugnant
to its sense. For whatever belongs to self-government in
Canada belongs either to the Dominion or to the provinces,
within the limits of the British North America Act.'' — Per
Earl Loreburn, L.C.

On all these decisions of the Courts, the Imperial
parliament has placed the seal of its approval by
the adoption of late years in many statutes of the
phrases ^* self-governing colonies '^ and ** self-
governing dominions '' as properly descriptive now
of Canada, Australia, South Africa, New Zealand
and Newfoundland.^

Ambit: How Determined.

The limitations upon the powers of self-govern-
ment possessed by Canada and its provinces aris-
ing from the colonial status have been fully dealt
with in Part I. of this book; and in the chapter on

""E.g., 58 & 59 Vict c. 34 (the Colonial Boundaries Act, 1895:
see ante, p. 257); 1 & 2 Geo. V. c. 46 (the Copyright Act, 1911:
see ante, p. 254) ; 2 & 3 Geo. V. c. 10 (the Seal Fisheries (North
Pacific) Act, 1912: see ante, p. 269).

A CHARTER OP SELF-GOVERNMENT. 353

Exterritoriality (Chapter VII.) much that appears
in this chapter has been already said. It may be
well, however, to repeat what was said by Lord
Selborne in the India Case ^ as to the method of en-
quiry to be adopted in determining the ambit of self-
government to which, under its charter, a colonial
legislature is to be confined, and to apply that
method to the interpretation of the British North
America Act.

" The established Courts of Justice when a question
arises whether the prescribed limits have been exceeded
must of necessity determine that question; and the only
way in which they can properly do so is by looking to the
terms of the instrument by which, affirmatively, the legis-
lative powers were created and by which, negatively, they
are restricted. If what has been done is legislation within
the general scope of the affirmative words which give the
power, and if it violates no express condition or restriction
by which that power is limited (in which category would,
of course, be included any Act of the Imperial Parliament
at variance with it), it is not for any Court of Justice to in-
quire further or to enlarge constructively those conditions
and restrictions."

In this passage Lord Selborne probably had not
before his mind the case of colonies united under
a federal system of government; and this must be
kept in view in applying to the British North Amer-
ica Act the method of enquiry of which he approved.

Affirmatively : the power of legislation conferred
by the Act is of the widest possible description. The
parliament of Canada is given exclusive authority
extending to '^ all matters coming within the classes
of subjects '' enumerated in section 91; provincial
legislatures ^* may exclusively make laws in re-
lation to matters coming within the classes of

" Queen v. Burah, L. R. 3 App. Cas. 889.

CAN. CON. — 23

354 CANADIAN CONSTITUTION : SELF-GOVEKNMENT.

subjects ^ ' enumerated in section 92 ; and a general
residuary^^ power is lodged with the parliament of
Canada * ' to make laws for the peace, order and good
government of Canada in relation to all matters not
coming within the classes of subjects " assigned to
the provinces. Clearly, as Lord Loreburn said in
the passage quoted above from the References Case,
these powers ^' cover the whole area of self-govern-
ment within the whole area of Canada.''

Negatively: Of express conditions or restric-
tions, apart from such as carry out the agreed-on
federal division of spheres, there is really only one,
the prohibition against interference with the office
of Lieutenant-Governor contained in section 92, No.
1. That, however, is an item touching constituent
powers, and it is to be borne in mind that Part VI.
of the British North America Act which deals with
the ^ ^ Distribution of legislative powers ' ' has, with
the exception of that one item, nothing to do with
the constituent powers of Canadian legislatures ; as
has been fully shown in Part I. of this book.^*^ The
limited power of the parliament of Canada in this
regard as contrasted with the fuller powers of the
provincial legislatures over the provincial constitu-
tions is one of the results of the adoption of a fed-
eral system for Canada; and has little bearing on
the subject matter of this chapter.^

There are, of course, other limitative phrases to
be reckoned with; such, for example, as '^ direct
taxation '' and ^^ the incorporation of companies
with provincial objects;'' and it will appear also
that a somewhat special territorial limitation is sug-
gested as arising from the insertion in some of the
class-enumerations of section 92 of such phrases as

®* See, however, post, p. 452.
^" See ante, Chap. V.
^ See ante, p. 40 et seq.

A CHARTER OF SELF-GOVERNMENT. 355

** in the province/' ^^ within the province,'* etc.
These, however, are part of the federation bargain
and must be given their due effect as interpreted.
Sections 91 and 92, indeed, contain competing and
mutually exclusive class-enumerations; but, their
respective scope established, there are no restrictive
limitations to cut down plenary legislative power.

Constitutional Acts all in pari materia.

As a natural consequence of the cognizance
taken by the Courts of the policy which lay behind
the grant of constitutions to the colonies, the var-
ious constitutional Acts have been treated as in
pari materia with each other, and with such statutes
for example, as the Act for the Union of England
and Scotland. Their language has been compared
and phrases in one have been construed in accord-
ance with the interpretation given to like phrases
in another. It is ^^ common form," for example, to
grant power to make laws for '^ the peace, order
and good government " of the colony; and these
have been held in cases from India ^ and Canada ^
apt words ^^ to authorize the utmost discretion of
enactment for the attainment of the objects pointed
to."

Again, in giving a wide interpretation to the
words ^* property and civil rights " {No. 13 of sec.
92) justification was found in the Quebec Act, 1774,
in which the same phrase was used in a clearly
large sense ; * while, on the other hand, in the same
case the words, '' the regulation of trade and

' Queen v, Burah, 3 App. Cas. 889.

^Riel V. R., 10 App. Cas. 675; 55 L. J. P. C. 28, evidently follow-
ing Queen v. Burah.

* Parsons' Case, 7 App. Cas. 96; 51 L. J. P. C. 11. The same
words, taken evidently from the Quebec Act, were used in a large
sense in the Act introducing English law into Upper Canada:
see ante, p. 285.

356 CANADIAN CONSTITUTION : SELF-GOVERNMENT.

commerce," were given a restricted meaning in
accordance with the view taken by the Board of
somewhat similar phraseology in the Act for the
Union of England and Scotland.^

The words used to describe the various classes
of subjects assigned to the Dominion parliament
and to the provincial legislatures respectively
should, prima facie, receive a large liberal interpre-
tation; but there are so many cases in which the
very general terms employed in the two leading
sections, 91 and 92, are mutually inconsistent with
each other and apparently overlap, that this larger
rule of interpretaton is overshadowed by other
rules invoked to aid in reconciling these apparent
conflicts. The application of the larger rule, how-
ever, appears in certain cases in which no point of
conflict as between federal and provincial jurisdic-
tion arose. For example: the power to make laws,
relating to ^' direct taxation within the province
for provincal purposes ' ' was held in an early case °
not to limit the provinces to laying taxes on the
whole province or applicable only for the general
benefit of the whole province. An Act authorizing
a municipality to issue debentures as a bonus to a
railway and to levy a tax upon the inhabitants to
meet the obligation so incurred was upheld ; and this
decision stands as a warrant for the whole system
of municipal taxation in operation to-day through-
out the Canadian provinces. Again, in determining
the extent of the legislative power conferred by No.
15 of section 92, to make laws in relation to '' the
imposition of punishment by fine, penalty, or im-
prisonment,'' the Privy Council declined to con-
strue the words strictly as penal legislation; on
the contrary, treating them as conveying plenary

^ other reasons were given as well: see post p. 684.
''Dow V. Black, L. R. 6 P. C. 272; 44 L. J. P. C. 52.

A CHARTER OF SELF-GOVERNMENT. 357

legislative power, their Lordships held that impris-
onment '' with or without its usual accompaniment,
hard labour '' might be imposed by provincial sta-
tutes ; ^ a construction aptly characterized as broad,
liberal, and quasi-political.^ And again, the power
given to a provincial legislature to make laws in re-
lation to ** the amendment of the constitution of
the province " {sec. 92, No. 1) has been held to
cover legislation as to the parliamentary privileges
of the assembly and of its members, such legislation
being ^ ^ aptly and properly described as part of the
constitutional law of the province. ' ' ^ And legisla-
tion as to the provincial franchise falls within the
same category.'^ Federal jurisdiction over ' ' aliens ' ^
and "' immigration '' authorizes deportation, even
though necessarily involving some measure of ex-
territorial constraint.^

The Omnipotence of Parliament.

When once it is determined that an Act passed
by any Canadian legislature, federal or provincial,
is within the power conferred by the British North
America Act it is not for any Court of justice to
enquire further.^

"Jurisdiction conceded, the will of the legislature is
omnipotent according to British theory and knows no
superior."^

^Hodge's Case, 9 App. Cas. 117; 53 L. J. P. C. 1.
"By Burton, J.A., in the Indian Lunds Case, 13 Ont. App. R.
at p. 165.

* Fielding v. Thomas (1896), A. C. 600; 65 L. J. P. C. 103.
*" Tomey Homma's Case (1903), A. C. 151; 72 L. J. P. C. 23.

* Cain & Gilhula's Case (1906), A. C. 542; 75 L. J. P. C. 81. See
the chapter on " Exterritoriality," ante, p. 106.

' Queen v. Burah, 3 App. Cas. 889.

»Mowat, A.-G., arguendo in Severn v. R., 2 S. C. R. at p. 81.
The theory is not exclusively British. "Jurisdiction conceded,"
the same rule obtains in the United States.

358 CANADIAN CONSTITUTION : SELF-GOVERNMENT.

"It cannot he too strongly put that with the wisdom or
expediency or policy of an Act, lawfully passed, no Court
has a word to say/^*

Courts of law are interpreters merely in such
case and have no right to enquire whether the jur-
isdiction has been exercised wisely or unwisely,*
justly or unjustly.^ Magna Charia may be inter-
fered with ; ^ taxation imposed without regard to
uniformity or equality ; ^ class legislation and laws
discriminating against race may be enacted ; ^ one
man's property may be taken from him and given
to another without compensation ; ^^ ex post facto
legislation passed ; ^ in short, the power may be
abused but ** the only remedy is an appeal to those
by whom the legislature is elected.^

Division of Assets.

In dealing with this feature of the Act, the
Courts, again, have not been unmindful of the wide

*Re References (1912), A. C. 571; 81 L. J. P. C. 210.

'^Bry den's Case (1899), A. C. 580 ; 68 L. J. P. C. 118; Ue C. P. R,
& York, 25 Out. App. R. at p. 79, per Meredith, J.

«i?e McDowell d Palmerston (1892), 22 Ont. R. 563 ; Atty.-Oen.
V. Victoria, 2 B. C. 1.

' Per Day, J., in Ex p. Oould, quoted with approval by Boyd, C,
in Re McDowell d Palmerston, supra.

« Fortier v. Larribe, 25 S. C. R. 422.

""Tomey Homma's Case (1903), A. C. 151; 72 L. J. P. C. 23;
Quong Wing v. R., 49 S. C. R. 440.

^'^ McGregor v. Esquimau & N. Ry. (1907), A. C. 462; 76 L. J.
P. C. 85; Fiddick v. Esquimau d N. Ry., 14 B. C. 412; Florence
Mining Co. v. Cobalt, dc, 18 Ont. L. R. 375 (affirmed in the Privy
Council; see C. R., 1911, A. C. 412) ; Re Goodhue, 19 Grant 366.

^Phillips V. Eyre, L. R. 6 Q. B. 20; 40 L. J. Q. B. 28: Atty.-Gen,
V. Foster, 31 N. B. 153.

'FisheHes Case (1898), A. C. 700; 67 L. J. P. C. 90.

" I fail to see how any Court can say that the legislature —
that is, the Crown, the Lords, and the Commons — has not juris-
diction to set up a despotism in any of the Dominions of the
Crown, or, indeed in the United Kingdom itself, although the
results might be even more disastrous than the attempt in the
18th century to tax the American Colonies:" per Farwell, L.J., in
R. V. Crewe (1910), 79 L. J. K. B. at p. 891.

A CHARTEK OF SELF-GOVERNMENT. 359

sweep of the statute. For example, in construing
section 109 which reserves certain sources of rev-
enue to the provinces, the Privy Council has said ; *

" The general subject of the whole section is of a high
political nature; it is the attribution of royal territorial
rights for purposes of revenue and government."

Executive Power.

The same broad view of the British North Am-
erica Act which led the Privy Council to affirm with
final authority that the Crown is a constituent
branch of all Canadian legislatures, of each pro-
vincial assembly as well as of the parliament of
Canada, led also and in the same case to an equally
authoritative pronouncement that:

" A Lieutenant-Governor, when appointed, was as much
the representative of Her Majesty for all purposes of pro-
vincial government, as the Governor-General himself was
for all purposes of Dominion government."*

The Crown's headship in Canada in both de-
partments of government, legislation and executive
administration, has already been largely discussed
in a previous chapter. And it may seem needless to
enlarge further upon what, under responsible gov-
ernment, would appear to be axiomatic, namely,
that legislative jurisdiction and executive power go
hand in hand. It is now authoritatively settled
that legislative power in Canada in reference to
any particular prerogative of the Crown rests with
that legislature, Dominion or provincial, which may
make laws in relation to the subject matter to which
such prerogative appertains. Executive action

^Mercer v. Atty.-Gen'l. (Ont.), 8 App. Cas. 767; 52 L. J. P. C.
84; 3 Cart. 1.

*Liquidator'9 Case (1892), A. C. 437; 61 L. J. P. C. 75.

360 CANADIAN CONSTITUTION : SELF-GOVERNMENT.

would then properly follow and be based on such
legislation.^

Question, however, has been raised with refer-
ence to those prerogative rights of the Crown which
have not been ^^ taken possession of by statute
law;"^ but the law seems clear that they are to be
exercised, so far as they fall within the scope of
Canadian self-government, by the Governor-Gen-
eral or the Lieutenant-Governors respectively upon
the same principle of division ; that where the legis-
lature of the Dominion is empowered to make laws
upon any given subject matter, any prerogative
right capable of exercise in relation to such matter
can only be exercised by the executive of the Dom-
inion, and so of each of the provincial governments.
The whole power of government, legislative and
executive, in relation to any given subject matter,
rests with that government to which it is assigned
for legislative purposes. The decision in the Liqui-
dator's Case, from which the above passage is ex-
tracted, has been uniformly so interpreted. It re-
lated to the Crown's prerogative right in respect of
Crown debts to priority of payment over other
creditors and there was no provincial statute on
the subject; nevertheless effect was given to the
Crown's claim in an action brought on behalf of the
province by the proper provincial officer.^ Prior to
this decision Mr. Justice Burton had thus expressed
himself in the Court of Appeal for Ontario:

"The 0. C. Case (1898), A. C. 247; 67 L. J. P. C. 17 (affirming
the judgment of the Court of Appeal for Ontario, 23 Ont. A. R.
792) ; the Pardoning Power Case, 23 S. C. R. 458; Atty.-Gen.
{Can.) V. Cain <& Gilhula (1906), A. C. 542; 75 L. J. P. C. 81.

"The expression is Mr. Lef ray's. See his "Leg. Power in
Can.," 144 (n.)

^ Reference is made in the judgment to Exchange Bank v. R.,
11 App. Cas. 157; 55 L. J. P. C. 5; in which the Board had given
effect to a provincial statute of Quebec limiting this prerogative
in that province.

A CHAKTER OF SELF-GOVERNMENT. 361

" I have always been of opinion that the legislative and
executive powers granted to the province were intended to
be co-extensive, and that the Lieutenant-Governor became
entitled, virtute officii, and without express statutory enact-
ment, to exercise all prerogatives incident to executive auth-
ority in matters in which provincial legislatures have juris-
diction; that he had in fact delegated to him the adminis-
tration of the royal prerogatives as far as they were cap-
able of being exercised in relation to the government of the
provinces, as fully as the Governor-General has the admin-
istration of them in relation to the government of the Dom-

And in a later case ^ he repeats this, adding : * ^ This
opinion seems to have been fully sustained and con-
firmed by the subsequent decision of the Privy
Council '' in the Liquidator's Case. Speaking of
the same decision Mr. Justice Maclennan says :

" That judgment determined conclusively that the Crown
stands in the same relation to the several provinces of the
Dominion as to the Dominion itself, with respect to powers
of legislation and government; and that Her Majesty is a
part of the government of the provinces in the same sense
as she is part of the government of the Dominion. That
being so, it follows that those prerogatives of the Crown
which properly belong or relate to the portion of legislation
and government assigned to the provinces are to be exercised
by the respective Lieutenant-Governors as representing Her
Majesty, precisely as those belonging to the Dominion are
to be exercised by the Governor-General. In short the effect
of the British North America Act is to distribute preroga-
tive powers as well as powers of legislation between the
Dominion and the provinces."^^

The same question was raised in a case which
came before the Privy Council in 1891 in reference

» The Pardoning Power Case, 19 Ont. App. R. at p. 38.

'The 0. C. Case, 23 Ont. App. R. at p. 802.

"The Q. C. Case, 23 Ont. App. R. at p. 805; and see also per
Hagarty, C.J.O., i6., at p. 798. See also a state paper by Sir Oliver
Mowat, Ont. Sess. Papers, 1888, No. 37.

362 CANADIAN constitution: self-government.

to the exclusion of Chinese from the colony of Vic-
toria ; ^ but was not decided because the Board held
that a colonial Act upon which the oiBficer concerned
had acted was sufficient to sustain what he had
done. The discussion in the Courts of Victoria had
largely proceeded upon the hypothesis that the col-
onial Act might not apply to the particular exclu-
sion; in which view the question was whether or
not the Crown without statutory authority could ex-
clude an alien ^ and, if so, whether or not the col-
onial executive, i.e. the governor acting on the ad-
vice of his colonial ministers, could exercise the
prerogative. The Privy Council declined to discuss
this larger question involving, as their Lordships
intimated, important considerations and points of
nicety. Although, as they also intimate, the ques-
tion might never become of practical importance
(because statutes may easily be passed ^ taking pos-
session of these prerogatives) the deliberate refusal
of their Lordships to pass upon it raises a doubt
as to the extent of the powers of self-government in
Canada as well as in other self-governing colonies
which, it is submitted, should not exist. If there
are any such prerogative rights to be exercised by
the Sovereign personally in reference to matters
within the scope of the British North America Act,
such rights must be exercised upon the advice of
the Imperial ministry, there being no provision in
the constitutional system of the Empire for a direct
tender of advice to the Sovereign by a colonial min-
istry. This would be that government from Down-
ing street which the self-governing colonies have

^Musgrove v. Chun Teeong Toy (1891), A. C. 272; 60 L. J.
P. C. 28.

' See chapter X., ante, p. 191 et seq.

^Por example, the Canadian Immigration Act, and the Alien
Labour Act: see Cain & Gilhula Case (1906), A. C. 542; 75 L. J.
P. C. 81.

A CHARTER OF SELF-GOVERNMENT. 363

been taught to regard as a thing of the past. There
are of course prerogatives which are truly imperial
as pointed out in an earlier chapter, and the ques-
tion consequently must be limited to those preroga-
tives of the Crown which relate to or are connected
with subjects committed to the power of colonial
legislatures, and which fall therefore within the
sphere of colonial self-government. It is submitted
that what Kerford, J., said of Victoria in Mus-
grove's Case^ is a fortiori true of Canada:

"All the prerogatives necessaryi for the safety and pro-
tection of the people, the administration of the law, and the
conduct of public affairs in and for Victoria, under our
system of responsible government, have passed as an inci-
dent to the grant of self-government (without which the
grant itself would be of no effect) and may be exercised by
the representative of the Crown on the advice of responsible
ministers."

The question must turn upon the proper con-
struction to be placed upon the various Imperial
Acts conferring constitutions upon the self-govern-
ing colonies. The powers of the Governor-General
and of the various Lieutenant-Governors are de-
fined in and limited by their respective commis-
sions, but these commissions expressly refer to the
office as created and defined by the British North
America Act. That Act speaks of these officers
as carrying on the government of Canada (s. 10),
and of the respective provinces (s. 62), and pro-
vides expressly for the Dominion that there shall
be a council to aid and advise in the government of
Canada (s. 11). It is noteworthy, too, that the title
of '^ viceroy '' denied to colonial governors in ord-
inary cases ^ has been lately applied by the Privy

* 5 Cart, at p. 606.

^Musgrave v. PuUdo, 5 App. Gas. 102; 49 L. J. P. C. 20.

364 CANADIAN constitution: self-government.

Council to the Governor-General of Canada,® and
would seem to be of equally proper application to a
Lieutenant-Governor ; indicating in each case a gen-
eral delegation of the Crown's authority in regard
to Dominion and provincial government respec-
tively/

Historical Aids to Interpretation.

The British North America Act, it has now been
shown, has been interpreted as a great constitu-
tional charter. Upon a broad and statesmanlike
view of British policy it has been held as intended
to confer full powers of self-government subject
only to the supremacy of the Imperial parliament
as the sole constitution-maker for the Empire and
as the embodiment and upholder of national unity in
the face of the world. And in determining the
scope of words and phrases used as descriptive of
the subjects upon which the federal and provincial
legislatures respectively may legislate, it is of
course proper to have regard to the circumstances
surrounding the passage of the Act.® But the rule
is of limited application. It cannot, for example,
be invoked to contradict or even modify unambigu-
ous language in the statute itself.

* Liquidator's Case, supra; and see per Strong, J., in R. v. Bank
of Nova Scotia, 11 S. C. R. 19.

' The following additional cases, in none of which had the pre-
rogative there in question been the subject of legislation, have a
bearing upon the subject: (1) Mercer's Case (8 App. Gas. 767; 52
L. J. P. C. 84; 3 Cart. 1), in which the right of the Crown to
escheats was enforced at the suit of the Atty.-General of Ontario
for the behoof of that province; (2) The Precious Metals Case (14
App. Cas. 295; 58 L. J. P. C. 88; 4 Cart. 241), in which British
Columbia was held entitled at the suit of the provincial Atty.-
General to the precious metals within the C. P. R. " railway belt "
in that province.

'Severn v. R. (1878), 2 S. C. R. 70; per Ritchie, C.J., at p. 87;
8t. Oath. Milling Co. v. R. (1887), 13 S. C. R. at p. 606, per Strong,
J.; Brophy's Case, infra.

A CHAKTER OF SELF-GOVERNMEN*r. 365

*^If the text is explicit the text is conclusive, alike in
what it directs and what it forbids. When the text is am-
biguous . . . recourse must be had to the context and
scheme of the Act/'^

The leading case, perhaps, on this proposition is
Barrett's Case ^^ in which the Privy Council had to
pronounce upon the validity of certain Manitoba
legislation which was attacked as prejudicially af-
fecting the rights of the Eoman Catholic minority
in that province in regard to separate schools. Sec-
tion 93 of the British North America Act confides
'* education '' to provincial legislatures with this
proviso:

(1) Nothing in any such law shall prejudicially af-
fect any right or privilege with respect to denominational
schools which any class of persons have by law in the pro-
vince at the union.

When Manitoba was made a province, the above
proviso was altered as to that province by inserting
after the words ^* have by law '' the words '* or
practice.'' Their Lordships held in effect that the
insertion of these words had not placed Manitoba in
a position different from that of the older pro-
vinces. This decision was much criticized; but in
a later case,^ the Board adhered to the interpreta-
tion adopted in Barrett's Case and thus justified it:

" It was not doubted that it was proper to have regard
to the intent of the legislature and the surrounding circum-
stances in interpreting the enactment. But the question
which had to be determined was the true construction of the
language used. The function of a tribunal is limited to con-
struing the words employed; it is not justified in forcing
into them a meaning which they cannot reasonably bear. Its

''References Vase (1912), A. C. 571; 81 L. J. P. C. 210.

" (1892), A. C. 445; 61 L. J. P. C. 58.

^BropMfs Case (1895), A. C. 202; 64 L. J. P. C. 70.

366 CANADIAN CONSTITUTION: SELF-GOVERNMENT.

duty is to interpret not to enact. It is true that the con-
struction put by this Board upon the first sub-section re-
duced within very narrow limits th© protection afforded by
that sub-section in respect of denominational schools. It
may be that those who were acting on behalf of the Eoman
Catholic community in Manitoba, and those who either
framed or assented to the wording of that enactment, were
under the impression that its scope was wider and that it
afforded protection greater than their Lordships held to be
the case. But such considerations cannot possibly influence
the judgment of those who have judicially to interpret a
statute. The question is not what may be supposed to have
been intended but what has been said. More complete effect
might in some cases be given to the intentions of the legis-
lature if violence were done to the language in which their
legislation has taken shape, but such a course would on the
whole be quite as likely to defeat as to further the object
which was in view. Whilst, however, it is necessary to re-
sist any temptation to deviate from sound rules of construc-
tion in the hope of more completely satisfying the intention
of the legislature, it is quite legitimate where more than one
construction of a statute is possible, to select that one which
will best carry out what appears from the general scope of
the legislation and the surrounding circumstances to have
been its intention."

Then, again, the introduction of federalism into
colonial government was a new departure; and it
would not be right as between the federating pro-
vinces to construe the Act in the light, as has been
said, of any one provincial candle. For example,
in defining the area covered by the class *^ municipal
institutions in the province " {sec. 92, No. 8), the
Privy Council declined ^ to accede to the argument
that the power to create such institutions neces-
sarily implied the right to endow them with all the
functions which had been ordinarily possessed and
exercised by them before the time of the Union.
This contention was thus negatived by the Board:

^ Local Prohibition Case (1896), A. C. 348; 65 L. J. P. C. 25.

A CHARTER OF SELF-GOVERNMENT. 367

" Their Lordships can find nothing to support that con-
tention in the language of section 92, No. 8, which accord-
ing to its natural meaning simply gives provincial legisla-
tures the right to create a legal body for the management
of municipal affairs. Until Confederation the legislature of
eaoh province as then constituted could if it choose, and did
in some cases, entrust to a municipality the execution of
powers which now belong exclusively to the parliament of
Canada. Since its date a provincial legislature cannot dele-
gate anyi power which it does not possess; and the extent
and nature of the functions which it can commit to a muni-
cipal body of its own creation must depend upon the legis-
lative authority which it derives from the provisions of sec-
tion 92 other than No. 8."

Upon a like broad outlook, the Privy Council, in
opposition to the view of all the Ontario Courts
and of a majority of the Supreme Court of Canada,
construed the phrase *^ lands reserved for Indians ''
{sec. 91 J No. 24) as having reference, not only to the
special ^^ Indian reserves,'' so much referred to in
the statute law of (old) Canada, but also to the
larger areas covered by the proclamation which fol-
lowed upon the Treaty of Paris (1763), namely, all
areas in respect of which there had been no surren-
der by the Indian tribes of their aboriginal ''' title.''*

The Quebec Resolutions. — As is well known, the
British North America Act is largely founded upon
the Quebec Eesolutions.^ Canadian judges have
frequently quoted from them and have utilized them
in construing doubtful passages in the Act. The
Privy Council, however, never referred to them in
its judgments until within the last year, when they
were somewhat casually spoken of as the material
upon which the Act was drafted.^^ For instance,

*/8f«. Catn. Milling Co. v. R. (1889), 14 App. Cas. 4^; 58 L. J.
P. C. 59.

^ Printed in full in the Appendix.

^^John Deere Plow Co. Case (1915), A. C. 330; 84 L. J. P. C. 64.

368 CANADIAN constitution: self-government.

the words ^^ Elvers and Lake Improvements '' in
the schedule to section 108 were held^ to con-
vey to the Dominion not the rivers themselves,
but, In the words of the Quebec Eesolutlons,
** Elver and Lake Improvements:'" but the deci-
sion was reached on considerations ah incon-
veinienti without reference either to the Eesolu-
tlons or to the French version of the Act, both of
which clearly negative the view contended for by
counsel for the Dominion. How far the British
North America Act should be judicially Interpreted
as expressing the will of the Imperial parliament
rather than of the federating provinces Is a ques-
tion affecting the use to be made of these resolu-
tions. The fact, too, that they were subjected at
London to revision by the delegates from the vari-
ous provinces renders them somewhat unreliable
as legal guides to the Interpretation of the British
North America Act. Nevertheless, In the latest
case^ In the Supreme Court of Canada Involving
consideration of the class ^* the Incorporation of
companies with provincial objects, '' reference was
freely had both by counsel and by the Court to these
Eesolutlons and to the historical record In Mr.
Pope's book ^ of the changes made from time to time
In the draft bills before parliament up to the final
passage of the Act. In an earlier case before the
Supreme Court, Eltchle, C.J., Is reported as saying:
** The Inference Is that they altered It advisedly.''^**
If so, a comparison of the Eesolutlons with the Act,

^Fisheries Case (1898), A. C. 700; 67 L. J. P. C. 90.

'See No. 55 (5).

«i?e Provincial Companies (1913), 48 S. C. R. 331. See particu-
larly per Idington, J., at p. 362, and per Brodeur, J., at p. 462.

» " Confederation Documents," edited by Sir Joseph Pope, 1895
(Carswell & Co.)

"i?e Portage Extension of Red R. Ry., Cassel's Sup. Ct. Dig.
487. See Lefroy, Legislative Power in Canada, 4 (n).

A CHARTER OF SELF-GOVERNMENT. 369

and of the Act with the draft bills, should throw
some light on the meaning to be attached to the
phrase finally adopted. This is clearly so if it is
proper to consider the Act as an agreement put into
statutory form; and this is in terms affirmed by a
recent decision of the Privy Council:

" In 1867, the desire of Canada for a definite constitu-
tion embracing the entire Dominion was embodied in the
British North America Aot."^

A Federal Union.

To establish such a union is the avowed object of
the British North America Act. The Act is to be
so interpreted. The subject, however, is of such
wide scope and importance that it should be given a
separate chapter.

^Re References (1912), A. C. 571; 81 L. J. P. C. 210.

CAN. CON,— 24

CHAPTEE XIX.
A Fedekal Union: Principles Involved.

The provinces originally united by the British
North America Act, 1867, asked for a federal union. ^
The Act was passed to embody their desire as its
preamble avovs^edly states, and as is recognized in
the familiar language of Lord Watson, speaking for
the Privy Council, in the Liquidator's Case:^

"The object of the Act was neither to weld the pro-
vinces into one, nor to subordinate provincial governments
to a central authority, but to create a federal government in
which they should all be represented, entrusted with the ex-
clusive administration of affairs in which they had a com-
mon interest, each province retaining its independence and
autonomy. That object was accomplished by distributing
between the Dominion and the provinces all powers, execu-
tive and legislative, and all public property and revenues
which had previously belonged to the provinces, so that the
Dominion Government should he vested with such of those
powers, property, and revenues as were necessary for the due
performance of its constitutional functions, and that the re-
mainder should be retained by the provinces for the purposes
of provincial government."

Whether the term '^ federal union " should, as
a matter of scientific accuracy, be applied to the
Canadian Constitution is a question for constitu-
tional philologists. It is the term in fact used in
our Act, as well as in the Australian Commonwealth
Act, 1900,^ to designate a union which, at all events,

^See Quebec Resolutions, 1, in Appendix.

' (1892), A. C. 437; 61 L. J. P. C. 75.

' " Whereas the people of New South Wales, Victoria, South
Australia, Queensland, and Tasmania, humbly relying on the
blessing of Almighty God, have agreed to unite in one indissoluble
Federal Commonwealth under the Crown of the United Kingdom

A FEDERAI, UNION: PRINCIPI.ES INVOLVED. 371

was not to be a Legislative Union; not, in other
words, a merger for all purposes of government as
a legislative union must be in any land under the
rule of law. Apart from detail, the term federal
union in these modern times implies an agreement
between two or more communities which, as between
themselves, are independent and autonomous. Hav-
ing arrived at a point where community of interest
in certain matters is recognized, they agree to com-
mit all their people to the control of one common
government in relation to such matters as are agreed
upon as of common concern, leaving each local
government still independent and autonomous in all
other matters. Moreover, and this is the point of
difference most plainly discernible between ancient
and modern forms of federalism, the central or com-
mon government, upon its establishment, is itself
independent and autonomous; it operates, as does
each local government, upon the individual directly
and not through the medium of any other govern-
ment.* And, finally, and as a necessary corollary in
any land governed by law, the whole arrangement
constitutes a fundamental law to be recognized in
and enforced through the agency of the Courts.

The exact position of the line which is to divide
matters of common concern to the whole federation
from matters of local concern in each unit is not of
the essence of federalism. Where it is to be drawn
in any proposed scheme depends upon the view
adopted by the federating communities as to what,
in their actual circumstances, geographical, com-

of Great Britain and Ireland and under the Constitution hereby
established: . . . Be it therefore enacted, etc."— 63 & 64 Vict.,
c. 12 (Imp.).

* See " The Federalist;' Nos. 15 & 16 (written by Hamilton), in
which it is shown how the absence of this principle in the
" Articles of Confederation " which preceded the present Constitu-
tion of the United States threatened a dissolution of that con-
federacy.

372 CANADIAN constitution: self-government.

mercial, racial, or otherwise, are really matters of
common concern and as such proper to be assigned
to a common government. But the maintenance of
the line, as fixed by the federating agreement, is of
the essence of modern federalism; at least, as ex-
hibited in the three great Anglo-Saxon federations
of to-day, the United States of America, the Com-
monwealth of Australia, and the Dominion of Can-
ada. Hence the importance and gravity of the duty
thrown upon the Courts as the only constitutional
interpreters of the organic instrument which con-
tains the fundamental law of the land. The line is
described by metes and bounds, stated in very
general terms ; and upon a broad, liberal, and states-
man-like interpretation of those terms, clearly de-
fining and yet reconciling them, the stability of our
institutions largely depends.

The above brief statement of general principles
would seem to indicate as proper for treatment in
this chapter the following topics: (1) The position
of the Courts in reference to questions of legislative
competency; (2) the independence of each govern-
ment, federal or provincial, both as to legislative
and executive action and as to proprietary rights;
(3) the necessity in some cases for conjoint action
to effect desired results; and (4) the aid, if any, to
be obtained from United States and Australian de-
cisions.

I. The position of the Courts in reference to
questions of legislative competence.

All questions as to the constitutional validity of
colonial legislation based, as all such legislation is,
upon Imperial charter must be determined by the
Courts, which will bring them to the touchstone of
the charter and so determine whether the limits

A FEDERAL UNION: PRINCIPLES INVOLVED. 373

therein prescribed have or have not been exceeded.^
Apart, therefore, from any question concerning
federalism, the problem as to any Canadian Act,
federal or provincial, is simply this : Is the Act re-
pugnant to the British North America ActT Does
the impugned Act overstep the limits prescribed by
this Imperial charter for federal or provincial legis-
lation, as the case may be?

But, treating the matter upon larger general
principles, it would seem axiomatic that in any coun-
try under the rule of law, it necessarily devolves
upon the Courts to enquire and determine in any
given case whether an Act of a legislature having
authority over a limited range of subject-matters is
within or without its powers, is or is not law. *' A
statute emanating from a legislature not having
power to pass it is not law. * '^ It cannot confer rights
or impose liabilities.* It is a nullitas nullitatum ^
and can affect nobody.^*' And the same law which
has prescribed bounds to the legislative power has
imposed upon the Judges the duty of seeing that
these bounds are not overstepped.^ This proposi-
tion, seemingly so self-evident, was elaborately at-
tacked in argument before the Supreme Court of
the United States in 1803 and as elaborately af-
firmed in the well-known judgment of Chief Justice

^ Queen v. Burah: see passage quoted ante, p. 94.

" The question is not often stated now in this way. It was so
Btated by the reporter with strict accuracy in U Union St. Jacques
V. Belisle, L. R. 6 P. C. 31.

^ Valin V. Langlois, 5 Que. L. R. at p. 16, per Meredith, C.J.

* Theherge v. Landry, 2 App. Cas. at p. 109 ; 46 L. J. P. C. at
p. 4.

* Lenoir v. Ritchie, 3 S. C. R. at p. 625, per Taschereau, J.
^""Bourgoin v. Mont., 0. d 0. Ry., 5 App. Cas. at p. 406; 49 L. J.

P. C. at p. 81.

1 UJJnion St. Jacques v. Belisle, 20 L. C. Jur. at p. 39, per Duval,
C.J.

374 CANADIAN CONSTITUTION: SELF-GO VEENMENT.

Marshall.^ It was clearly stated by Lord Hob-
house, speaking for the Privy Council, in Parsons'
Case :^

" In these cases it is the duty of the Courts, however dif-
ficult it may be, to ascertain in what degree and to what
extent authority to deal with matters falling within these
classes of subjects exists in each legislature, and to define
in the particular case before them the limits of their respec-
tiye powers."

This duty British Courts in England, Australia,
and Canada eixercise daily without question and al-
ready their decisions upon this branch of Imperial
jurisprudence would fill many volumes. The omni-
potence of parliament has no place here. It is, no
doubt, settled law that the powers of Canadian legis-
latures, -each in its sphere, are plenary powers of
legislation; but this is always ^^ jurisdiction con-
ceded.''*

And where the question of jurisdiction or legis-
lative competence depends under the British North
America Act upon a question of fact or a mixed

'Marhury v. Madison, 1 Cranch. 137. In a recent case from
Australia, Webb v. OutHm (1907), A. C. 81; 76 L. J. P. C. 25, the
judgment delivered by Lord Halsbury contains, with great defer-
ence be it said, some questionable matter. Contrasting the posi-
tion of an Act of the Victoria legislature with that of a State
legislature in the United States, Lord Halsbury says of the
former: "If indeed it were repugnant to the provisions of any
Act of Parliament extending to the colony it might be inoperative
to the extent of its repugnancy; but, with this exception, no
authority exists by which its validity can be questioned or im-
peached. The American Union, on the other hand, has erected
a tribunal which possesses jurisdiction to annul a statute upon
the ground that it is unconstitutional." The jurisdiction is not
to annul; and, until Marhury v. Madison settled the matter for
all time, it was a disputed point whether the Supreme Court
could treat as void an Act of Congress repugnant to the written
Constitution. It may be added that in Australia Webh v. Outrim
is a much criticized decision. See Law Quart. Rev. No. 90.

» 7 App. Cas. 96 ; 51 L. J. P. C. 11.

* See ante, p. 357.

A PEDERAI, union: PRINOIPIyES INVOLVED. 375

question of law and fact, the Courts must determine
this preliminary question. For example, the parlia-
ment of Canada may deal with matters which are
local or private and as such within the ordinary
scope of section 92 in cases where such federal legis-
lation is *' necessarily incidental " to the exercise
of the powers conferred upon the parliament of
Canada by the enumerative heads of section 91.^ It is
for the Courts and not for the parliament of Canada
to lay down the line of necessity in each case f other-
wise, as has been pointed out, the federal character
of the union might be ended if the judgment of par-
liament were to be decisive."^ Legislative bodies are
proverbially impatient of constitutional limitations
upon their power; and convenient provisions might
easily be deemed necessary provisions. In the one
case in which the federal parliament has the right
to extend the limit of its own jurisdiction, namely,
in the case of local works and undertakings, by de-
claring them to be for the general advantage of
Canada (sec. 92, No. 10 c) complaint is heard of
practical usurpation.® In all other cases, it is for
the Courts to restrain colourable encroachment. The
Privy Council had intimated this in several cases
before actually interposing in the Through Traffic
Case just referred to.^

'Local Prohibition Case (1896), A. C. 348; 65 L. J. P. C. 26.
See extract, post, p. 432.

'Montreal Street Ry. v. Montreal, 43 S. C. R. 197; per Duff, J.,
at p. 229; per Anglin, J., at p. 245. The Chief Justice and
Girouard, J., concurred in the judgment of Duff, J., and the
decision was upheld in the Privy Council: (1912), A. C. 333; 81
L. J. P. C. 145. The question was as to the right of the Dominion
parliament to force provincial railways to make certain pre-
scribed agreements with federal railways as to "through traffic."

' Per Duff, J., at p. 232.

'The federal railway in the Through Traffic Ca»e just men-
tioned is a rather startling example. " Small and provincial
though it was " is the language of Lord Atkinson in describing it.

«See Russell v. Reg., 7 App. Cas. 829; 51 L. J. P. C. 77;
Brewers' License Case (1897), Af C. 231; 66 L. J. P. C. 34; Atty.-

376 CANADIAN CONSTITUTION: SELF-GOVERNMENT.

Again, the jurisdiction of the Dominion parlia-
ment under the opening ^^ peace, order, and good
government '^ clause of section 91 has been held to
be ^^ strictly confined to such matters as are un-
questionably of Canadian interest and importance. ' '
The Courts must accept the heavy responsibility of
deciding this question of fact. In the Local Pro-
hibition Case,^^ their Lordships of the Privy Coun-
cil speak of being*! relieved of this responsibility in
reference to the Canada Temperance Act by the
previous decision of the Board in Russell's Case^
No Dominion statute has yet been held ultra vires
upon this ground as a colourable invasion of the
provincial field unless, indeed, the decision of the
Privy Council holding invalid the Dominion Liquor
License Acts, 1883 and 1884,^ was based upon this
view; but as no reasons were ever published, this
must remain uncertain. To what extent the Courts
may, in deciding such a question of fact, take
judicial notice of conditions, political, social, and
industrial, throughout the Dominion may be a very
difficult problem. It was held in an early case that
the onus is on those who assert that a matter in it-
self local or provincial does also come within one of
the) enumerated classes of section 91 f and it may
well be argued that the onus would be still harder
to satisfy if it were sought to have it established
that the matter was unquestionably one of Cana-
dian interest and importance.^*

Gen. {Que.) v. Queen Ins. Co., 3 App. Cas. 1090; Man. Liquor Act
Case (1»02). A. C. 73; 71 L. J. P. O. 28. See also B. C. Elee. Ry.
V. Y. y. & E. Ry. (1914), 83 L. J. P. C. 374.

" (1896), A. C. 348; 65 L. J. P. C. 26.

^7 App. Cas. 829; 51 L. J. P. C. 77.

2 Commonly called the McCarthy Act. See 4 Cart. 342 n.

^L'Union St. Jacques v. Belisle, L. R. 6 P. C. 31, referred to
with approval in Dow v. Black, ih. 272; 44 L. J. P. C. 52.

^» See Re Insurance Act, 1910, 48 S. C. R. at p. 307, per
Anglin, J.

A FEDERAIv UNION: PEINCIPI.ES INVOLVED, 377

Again, the opinion has been expressed that the
question as to what are provincial objects within
the meaning of section 92, No. 11, '' the incorpora-
tion of companies with provincial objects '^ must be
settled in each case as a question of fact.*

It has been suggested that a' person may be es-
topped from setting up the unconstitutionality of a
statute;'^ but upon principle this cannot be so. A
person may be estopped by his own acts from deny-
ing liability, as, for; instance, by entering into con-
tracts which, though contemplated by invalid legis-
lation, are valiii apart from such legislation; but in
any such case, the statute, as a statute, must be
treated as non-existent.^

In conclusion upon this branch, it is obvious that
it is not at all an essential feature of a federal
system that some particular Court or Courts should
be created for the decision of questions of legisla-
tive competency. Any court of law must determine,
at the instance of any suitor, the question of the
validity of any statute put forward as affecting the
rights of the litigants before it, and it is not at all
necessary that the Crown by its Attorney-General
(federal or provincial) should first intervene."^
Further discussion of this phase will appear more
appropriately when the constitutional law as to the
administration of justice in Canada is examined.^

*In re Companies Inoorporation, 48 S. C. R. at p. 399, per
Duff, J. Presumably the facts would have to be taken from the
instruments constituting the charter of incorporation. The whole
difficult subject is now before the Privy Council.

** Lefroy, Legislative Power in Canada, 200, n. 1.

" Cooley on Const. Limitations, 6th ed., at p. 222; Ross v. Guil-
tault, 4 Leg. News (Mont.) 415; Ross v. Can. Agric. Ins. Co., 5
Leg. News, 23; Forsyth v. Bury, 15 S. C. R. 543; McCaffrey v.
'Ball, 34 L. C. Jur. 91.

'' Bourgoin v. Montreal, 0. d 0. Ry., 5 App. Cas. 406; 49 L. J.
P. C. at p. 81.

^ See chap. XXVIIL, post, p. 589.

378 CANADIAN CONSTITUTION: SELF-GOVERNMENT.

Daily experience in Canadian Courts supports the
general propositions above advanced.

II. — ^Autonomy.

Neither government {federal or provincial) has
power to enlarge its own or the other's sphere of
authority, or to take property belonging to the
other; unless, in either case, authorized so to do by
the Federation Act itself,

(a) Legislative Jurisdiction.

The above proposition appears upon reflection
to be self-evident, even as to Crown property; but
it is thought better, for reasons which will appear
later, to confine attention in the first place to legis-
lative jurisdiction simply. The British North
America Act defines the limit of jurisdiction in each
case; and the proposition, confined as indicated,
seems but a re-statement of what has already
appeared in a previous chapter in reference to
the constituent powers of Canadian legislatures.®
Any legislation, federal or provincial, which at-
tempted to alter the range of legislative power, as
prescribed in the Act, either by increase or diminu-
tion of jurisdiction, would be so clearly repugnant
to the Act and so subversive of the federating com-
pact which is embodied in it, that it seems unneces-
sary to dwell at any length on the general question.
What Mr. Justice Duff said of the Dominion in the
Through Traffic Case applies equally to the pro-
vinces :

" I do not think there can be found in any of the cases
the slightest suggestion that the Dominion has power of its

' Chap, v., ante, particularly at p. 34-5.

A FEDERAI, UNION: PRINOIPI^ES INVOLVED. 379

own will to enlarge the limits of its legislative authority.
Those limits are fixed by the Act itself.^'^^

Express power to enlarge, at its own will, its
range of legislative power is in one instance con-
ferred by the Act upon the Dominion parliament,
namely, by declaring a local work, though wholly
situate within a province, a work for the general
advantage of Canada {sec. 92, No, 10 c). The
maxim expressio unius exclusio est alterius would
seem to apply, if it were not so obviously unneces-
sary to invoke it. The power of the Dominion par-
liament to pass remedial laws in reference to the
educational rights of denominational minorities
upon appeal from provincial legislation (sec. 93) is
an exceptional power of interference in affairs
prima facie provincial, and affords no argument
against, but rather as just indicated in favour of
the general proposition now under discussion.

Veto power not relevant. — Nor does the exist-
ence of the veto power in the Governor-General in
Council over provincial legislation touch the pro-
position. It is a matter in which, as was said by the
Privy Council in reference to the appointment of
a provincial Lieutenant-Governor, the Dominion
Government has ^^ no power and no functions, ex-
cept as representatives of the Crown.'' It is the
Crown's Imperial prerogative, taken by Imperial
statute from the Crown in Council (Imperial) and
lodged with the Crown in Council (Canadian). It
is one feature of ^ ' a carefully balanced Constitution
under which no one of the parts can pass laws for
itself, except under the control of the whole acting
through the Governor-General."^ But in no way

^"Montreal Street Ry. v. Montreal (1910), 43 S. C. R. at p. 229;
concurred in by the Chief Justice and Girouard, J., and affirmed
in the Privy Council (1912), A. C. 333; 81 L. J. P. C. 197.

"■Lamte's Case, 12 App. Cas. 575; 56 L. J. P. C. 87.

380 cANADiAi>r constitution: self-government.

does it touch the question of legislative competence,
or the essentially federal character of our Constitu-
tion.^

Federal Act cannot enlarge provincial ambit. —
It is equally clear upon authority that a federal
statute cannot enlarge the ambit of provincial
authority as fixed by the British North America
Act. Provincial legislative power in reference to
the incorporation of companies is limited to '' the
incorporation of companies with provincial ob-
jects.'' If this has. the effect of preventing pro-
vincially incorporated companies from extending
their activities beyond the bounds of the incorporat-
ing province — and that is a very moot point ^ — the
unanimous view of the Judges of the Supreme
Court of Canada is that a Dominion Act purporting
to license such companies to carry on business any-
where in Canada is quite powerless to that end ; nor
would a provincial Act of like character be effectual
in such province as to a company incorporated in
another province.* The question, however, is not
without its difficulties; and certain recent federal
legislation concerning Sabbath observance appears
to be based upon the view that the Dominion parlia-
ment may validly empower a provincial legislature
to make laws in relation to subjects within federal
jurisdiction; a view which, it is conceived, is radi-
cally unsound, but which nevertheless has the sup-
port in this instance of very high authority. The
question merits closer examination.

The right of a sovereign legislature to delegate
to a subordinate body some part of its legislative

^ This subject is discussed more at length in chap. VIII., ante,
p. 150 et seq.

^ Now before the Privy Council on appeal in the case cited in
the next note.

*In re Companies (1913), 48 S. C. R. 331.

A FEDERAIv UNION I PRINCIPI.ES INVOLVED. 381

functions is beyond question f and the parliament of
Canada and the assemblies of the several provinces
are all sovereign legislatures within their respective
spheres. They can take advantage of the existence
within the territorial limits of their jurisdiction of
any person or body of persons or of any corpora-
tion, municipal or other, to confer rights or impose
duties upon such persons or corporations; in other
words, as previously intimated, federal or provincial
laws competently enacted operate directly upon the
individual, natural or artificial.^ For example, the
parliament of Canada has adopted for the purposes
of criminal procedure the juries selected under pro-
vincial law, and has thereby effectually imposed
federal duties, so to speak, upon the persons so
selected.^ It has also adopted as the proper qualifi-
cation for the federal voter the provincial franchise,
and has thereby effectually clothed the provincial
voter, speaking generally, with the right to vote at
federal elections.^ This is sometimes spoken of as
legislation by reference and no serious question has
ever been raised as to its validity.

And the parliament of Canada or a provincial
legislature can confer power upon a subordinate
agency to make regulations for the better carrying
out in detail of the scheme of any enactment. As
was said in Hodge's Case,^ a legislature committing
important regulations to agents or delegates does
not efface itself. On the contrary —

" It retains its powers intact and can^, whenever it
pleases, destroy the agency it has created and set up another
or take the matter directly into its own hands. How far

^Hodge's Case (1883), 9 App. Cas. 117; 53 L. J. P. C. 1.
"Ante, p. 371.

' R. V. O'Rourke, 32 U. C. C. P. 388; 1 Ont. R. 465: R. v. Provost,
29 L. C. Jur. 253; R. v. Plante, 7 Man. L. R. 537.
*See R. S. C. (1906) c. 6, part I.
' Ubi supra.

382 CANADIAN CONSTITUTION: SELF-GOVERNMENT.

it shall seek the aid of subordinate agencies, and how long
it shall continue them, are matters for each legislature, and
not for courts of law, to decide/'

But, it is conceived, there is notMng in all this to
give any countenance to the notion that by Canadian
legislation, federal or provincial or both, a readjust-
ment of the respective spheres of legislative auth-
ority as fixed by the British North America Act can
be brought about; that, for example, the Dominion
parliament can confer upon a provincial assembly
any power of legislation not possessed by such as-
sembly under the imperial statute. No such con-
stituent power has been given by the Act to either
legislature.^^ It is not covered by any affirmative
words and is radically repugnant to the principle
underlying the use of the mutually restrictive word
** exclusive '' as applicable to the two competing
groups of class-enumerations. Provincial legisla-
tion which, ex hypothesi, requires federal legislation
to support it is not legislation at all.

Nevertheless, as a mere question of method, the
Dominion parliament may legislate as it will by
reference. It may enact as law the resolutions of a
debating club; and this, in principle, is what has
been attempted in connection with Sabbath observ-
ance laws. Such laws have been held by the Privy
Council to fall within the class '* the criminal law ^'
and therefore within the exclusive legislative auth-
ority of the parliament of Canada. But by the
Lord^s Day Act ^ and by a section in the Eailway
Act of Canada,^ the federal parliament has pur-
ported, apparently, to throw upon the provincial
legislative assemblies a constitutional burden which
is clearly not theirs. If, however, those assemblies

^^ See ante, p. 34 et seq.
^R. S. C. (1906) c. 153.
^R. S. C. (1906) c. 37, sec. 9.

A FEDERAL UNION: PRINCIPI^ES INVOLVED. 383

choose to express in what is not a valid legislative
Act views which they have no constitutional right to
put forward as the views of the provincial elector-
ate, there would seem to be no doubt that the result-
ing document — in itself a nullitas nullitatum^ — may
be made federal law by federal enactment. Whether,
on the proper construction to be placed upon the
federal enactments as they now stand, this is what
has been done, may be doubted.

The Lord's Day Act contains a section (16) ex-
pressly saving ' ' any Act or law relating in any way !
to the observa»ce of the Lord 's Day in force in any
province of Canada ' ' ; but this could not operate j
upon any Act or law which was not really federal \
law, that is to say, which was not a law which, if
non-existent, the parliament of Canada could enact.*
In other words, the Lord's Day Act leaves un-
touched existing ' Sabbath . observance laws which
otherwise might be deemed to be repealed by .it.
Manifestly it could not touch any law, whether pre-
confederation or post-confederation, in force in any
province which, if enacted after the union, would be
properly classified as provincial and not federal.^

Some of the prohibitive clauses of the Act
declare it to be unlawful for any person to do certain
things on the Lord 's Day ^ ' except as provided here-
in or in any provincial Act or law now or hereafter
in force.'' If the word '^provincial" was intended
to mean ' ' passed by a post-confederation provincial
legislative assembly " — the word "' hereafter "
points to that conclusion — the Dominion parliament
has attempted to confer upon a provincial legisla-
ture the power to repeal as to the province some of
the provisions of the Lord's Day Act. In a recent

* See ante, p. 373.

* Dome's Case, 7 App. Cas. 136 ; 51 L. J. P. C. 26 ; Local Pro-
hibition Case (1896), A. C .343; 65 L. J. P. C. 26.

"" See post, p. 405.

384 CANADIAN CONSTITUTION: SELF-GOVERNMENT.

case before the Supreme Court of Canada, Mr. Jus-
tice Davies expressed a strong opinion in favour of
the right of the parliament of Canada to confer such
a delegated authority;^ and in a still later case in
British Columbia, Hunter, C.J., spoke of the provi-
sion as enabling the province ^^ to reduce the scope
or mitigate the severity of the general prohibition in
respect of the topics mentioned in the section.*"
y~The true view, it is submitted with all respect, is
that taken by Mr. Justice McPhillips in the Court of
Appeal for British Columbia,* that it is not compe-
tent for a provincial legislature to enact any legis-
lation in the nature of criminal law nor is it compe-
tent for the parliament of Canada to confer upon or
delegate to a provincial legislature any authority to
enact such legislation. To repeal or alter or modify
existing criminal legislation, such as the Lord's Day
Act of Canada, is to pass criminal legislation^ The
judicial utterances above referred to were oWter, as
the attempted provincial enactment in each of the
above cases was prohibitive and not by way of excep-
tion. If, however, a provincial legislature can re-
duce the scope or mitigate the severity of the Lord's
Day Act it can delegate the power to a municipal
body;^^ otherwise the anomaly would exist of an
assembly possessed both of the power of legislation
in the proper sense of that term and of certain other
power exercisable as a strictly delegated power
only^ not capable of being further delegated.

The section of the Eailway Act of Canada on the
subject of Sabbath observance above referred to is

''Ouimet v. Bazin (1912), 46 S. C. R. 502, at p. 514.

'R. V. Walden (1913), 19 B. C. 539. See also R. v. Laity, 18
B. C. 443.

«76. at p. 545.

^ " Parliament is the sole custodian of authority to make,
amend, or repeal criminal laws." — II)., per Macdonald, C.J., at
p. 342.

^'^ Hodge's Case; see ante, p. 350.

A FEDERAL UNION: PRINCIPI.ES INVOLVED. 385

limited to conferring power upon provincial legisla-
tures to prohibit labour on Sunday upon railways
situate wholly within a province, but brought within
federal jurisdiction by a declaration by the parlia-
ment of Canada that they are for the general ad-
vantage of Canada/ The effect of this legislation was
elaborately discussed by Chancellor Boyd in a;i!e«ent
case in Ontario.^ He treated the^emaetme^i; as in the
nature of a modification of the effect of the declara-
tion ; as restoring to the province a legislative power
over the railway which the declaration had taken
from it. He thought the legislation intra vires; but
a perusal of the judgment discloses that it was as
federal legislation by reference rather than as pro-
vincial legislation. And it should be noted that the
description which he gives of the two legislatures,
federal and provincial respectively, as ^* a superior
and a subordinate legislature,'^ is contrary to the
authoritative pronouncement of the Privy Council
in the Liquidator's Case.^ The judgment of the
Chancellor was reversed by the Court of Appeal, but
upon the ground that as the railway was one within
federal jurisdiction by reason of the fact that it
extended (potentially) beyond the province, it did
not fall within the permissive section of the Kailway
Act of Canada, which covered only railways which,
but for the declaration, would be provincial rail-
ways.* The question of delegation was not discussed.

Question of concurrent powers here irrelevant. —
It is now definitely settled that the classes enumer-
ated in sections 91 and 92 do to some extent inter-
lace and that there may be a domain in regard to
which either legislature may legislate if the field be
clear. If in such a domain the two legislations meet,

*B. N. A. Act, 1867, sec. 92, No. 10 (c).

^ Kerley v. London <& L. E. Trans. Co., 26 Ont. L. R. 588.

' See iBxtract ante, p. 351.

* 28 Ont, L. R. 606. See post, p. 747.

CAN. CON. — 25

386 CANADIAN CONSTITUTION: SELF-GOVERNMENT.

then the Dominion legislation must prevail.'^ This
is the proper interpretation of the British North
America Act as determined by the Courts; as will
more fully appear later. This question of concur-
rent or overlapping powers is one of the most in-
tricate and difficult of the many questions which
arise under a federal system; but a little reflection
will make clear\ that it does not touch the proposi-
tion now under discussion. A federal Act, in the
case put, intervenes, and so long as it remains in
force, overrides provincial law; but it does so be-
cause and only because it is intra vires federal legis-
lation. For example, the law governing generally
the relations between master and servant is pro-
vincial law (^* civil rights in the province:^' sec. 92,
No. 13) which, in the absence of any federal law to
the contrary, would govern the relations between a
federal railway and its employees. But the Do-
minion parliament, it has been said, is entitled by
virtue of its legislative jurisdiction over federal
railways {sec. 92, No, 10a) to make laws governing
the relations between such railways and their em-
ployees.'^* In other words, such a law is within and
not without the limits of Dominion competence as
fixed by the Act. It does not alter the range; it
keeps within it, as the Privy Council has decided.

(fc) Neither Government Can Take Property Be-
longing to the Other,

There is a broad distinction between legislative
jurisdiction and proprietary rights.

There can be no a priori probability that the British
legislature in a branch of the statute which professes to deal

« Grand Trunk Ry. v. Atty.-Gen. Can. (1907), A. C. 65; 76 L. J.
P. C. 23.

*" Contracting-out Case, cited in last note.

A FEDERAIv UNION: PRINCIPI.ES INVOLVED. 387

only with the distribution of legislative power intended to
deprive the provinces of rights which are expressly given
them in that branch of it which relates to the distribution
of revenues and assets.^

For example, the legislative power over '^ In-
dians and lands reserved for Indians ' ' conferred by
No. 24 of section 91 upon the parliament of Canada
is *^ not in the least degree inconsistent with the
right of the provinces to a l3eneficial interest in
those lands. '^^ And so as to ^* fisheries " (sec. 91,
No. 12), proprietary rights may be vested in the
Crown in right of a province side by side with and
notwithstanding the legislative power of the Do-
minion parliament over that particular subject, al-
though, of course, the exercise of such legislative
power may materially affect the proprietary rights
of individuals or of the provinces.^

On the other hand, the ownership in the Crown,
in right of the Dominion or of a province, of public
property places such property within the exclusive
legislative control of the Dominion parliament or of
the provincial legislature, as the case may be. This
has been expressly held in the case of Dominion
public property;® and is indeed covered by one of
the enumerated classes of sec. 91, " the public debt
and property '' (No. 1). This obviously has refer-
ence to the public debt of the Dominion, as a unit,
assumed at Confederation or since incurred, and
to the public property held by the Dominion govern-

*8t. Catherines Milling Co. v. Reg., 14 App. Cas. 46; 58 L. J.
P. C. 59.

'!&.; followed in the Indian Claims Case (1897), A. C. 199;
66 L. J. P. C. 11; and in Ont. Mining Co. v. Seybold (1903), A. C.
73; 72 L. J. P. C. 5.

* Fisheries Case (1898), A. C. 700; 67 L. J. P. C. 90.

^Burrard Power Co. v. R. (1911), A. C. 87; 80 L. J. P. C. 69;
Re British Colum'bia Fisheries (1914), A. C. 153; 83 L. J. P. C.
169.

388 cANADiAisr constitution: self-government.

ment for Canada, as a whole.^'' The companion
item, so to speak, of section 92, No. 5, ^^ the man-
agement and sale of the pnblic lands belonging to
the province and the timber and wood thereon, '^ is
more limited in its phraseology; bnt the power of
appropriation, which is a legislative power, over all
Crown revenues and assets in the provinces prior
to Confederation was clear and section 117 of thie
British North America Act provides:

117. The several provinces shall reitain all their respec-
tive public property not otherwise disposed of by this Act,
subject to the right of Canada to assume any lands or public
property required for fortifications or for the defence of the
country.''

Solus populi suprema lex; but this, it is con-
ceived, is the only case in which the right of one
government in Canada to expropriate the property
of another government exists under the Act. The
Indian Lands Cases lay down this proposition very
clearly as to the provincial interest in lands which
are still subject to the * Indian title;' the Dominion
cannot by its legislation or by treaty with the In-
dians thereunder, effect the proprietary rights of
the province.^ And so as to the proprietary rights
of a province in fisheries, arising from its owner-
ship of the public lands; those rights cannot be
alienated by Dominion legislation.^ Eeferring to
these cases, Mr. Justice Duff said:

" The reasoning upon which these decisions are based
appears to involve the principle that except in the special
case mentioned in section 117 the distribution of property

" Burrard Power Case, 43 S. C. R. at p. 51, per Duff, J., in whose
judgment the Chief Justice and Sir Lrouis Davies, J., concurred.

^ St. Catherines Milling Co. \. R., 14 App. Cas. 46; 58 L. J.
P. C. 59; Ontario Mining Co. v. Seybold (1903), A. C. 73; 72 L. J.
P. C. 5.

^Fisheries Case (1898), A. C. 700; 67 L. J. P. C. 90.

A FEDERAL UNION: PRINCIPLES INVOLVED. 389

between the Dominion and the provinces is not subject to
be readjusted at the will of one of the parties and, conse-
quently, that a province cannot take away either for the
benefit of itself or for the benefit of another any of the
property appropriated by the British North America Act to
the Dominion/'^

The principle was applied in the Watex Rights
Case, from which the above extract is taken, in
favour of the Dcminion as against the province
of British Columbia which had assumed to grant
water rights in the Eailway Belt of that province,
which under the terms of union agreed to when
British Columbia entered the Canadian Union had
become Dominion property ;* but, as stated, the prin-
ciple covers the converse case of federal legislation
attempting to take provincial property. And if the
Dominion cannot itself take, it cannot authorize any
person, natural or corporate, to take. The Privy
Council has, however, held that a federal railway
may expropriate provincial Cjown land;^ but it was
not necessary to tTie decision of the case to take
such broad ground, and the opinion expressed is
opposed in principle to that underlying the other
decisions above mentioned. The question was as to
the right of the Canadian Pacific Railway to expro-
priate Crown property on the foreshore of Burrard
Inlet in front of the City of Vancouver. The fore-
shore there was held to be part of a public harbour
and therefore property belonging to the Dominion;
and that holding was sufficient to dispose of the
case. Moreover, the rights of that railway in
British Columbia rest largely upon the Terms of

' Burrard Power Co. v. R., 43 S. C. R. 27, at p. 52. As already
noted, the Chief Justice and Davies, J., concurred in the
opinion of Duff, J. The judgment was affirmed in the Privy
Council (1911), A. C. 87; 80 L. J. P. C. 69.

* See Appendix.

'' Atty.-Gen. B. C. v. Can. Pac. Ry. (19i06), A. C. 204; 75 L. J.
P. C. 38, usually referred to as the Vancouver Street Ends Case.

390 CANADIAN CONSTITUTION: SELF-GOVERNMENT.

Union which were embodied in the Order-in-Council
(Imperial) admitting that province to the Canadian
Union and which, under section 146 of the British
North America Act, have the force of an Imperial
Act. The view was expressed in the Conrt below
that the Terms of Union gave the Dominion power
to take Crown land, whether provincial or federal,
for the construction of the Canadian Pacific Kail-
way.®

In a very recent case in the Exchequer Conrt,
however, the right of the Dominion to expropriate
provincial Crown lands is treated as settled by the
decision of the Privy Council in the ease just noted.**

(c) No government in Canada, federal or pro-
vincial, can in the exercise of its constitutional func-
tions create of its own will alone obligations to he
met hy any other government.

The Dominion or a province in the exercise of
its powers of government under the British North
America Act acts for itself and upon its own
responsibility. It is not the constitutional agent of
or trustee for any other government, so as to im-
pose by any action of its own any liability upon such
other government to indemnify it for expenditures
incurred or any legal obligation to implement its
action; unless, indeed, there is something in the
nature of a contractual or quasi-contractual relation
between the two or more governments concerned in
reference to the action in question.

The position of the Courts in reference to the
Crown in Canada and to controversies between the
different governments of His Majesty in Canada

'Attp.-Gen. B. C. v. Can. P. Ry., 11 B. O. 28; per Hunter, C.J.,
and Martin, J.

«" R. V. Tweedie, 15 Exch. Ct R. 177. The land was taken for
the Intercolonial Railway and the province concerned disclaimed
any interest in it. The opinion expressed was therefore obiter.

A FEDERAI, UNION: PRINOIPI^ES INVOLVED. 391

will come up for somev^hat detailed discussion later.
Here it may be premised that, apart from statutory
agreement, such controversies could not come be-
fore the Courts. The Crown cannot ordinarily be
impleaded without its own consent. Any difficulty,
however, on this score has been obviated by the
passage by the Dominion parliament and by each
of the provincial legislatures of statutes conferring
upon the Exchequer Court of Canada jurisdiction
to decide such controversies, not only between the
Dominion and a province, but also as between two
or more provinces."^ The decision, however, must be
rested upon ^* some recognized legal principle/'^

Under this statute, the Dominion brought suit
against Ontario, claiming to be indemnified for ex-
penditures incurred and obligations undertaken by
the Dominion in arranging what is known as the
North-West Angle Treaty with the Indians of
North- Western Ontario for the surrender of the
* ^ Indian Title. ' '^ The removal of the burden of that
title from a large area of land within the boundaries
of Ontario enured, no doubt, to the benefit of that
province in a marked degree; but, as the Treaty
has been negotiated without the concurrence of On-
tario— so that no question of contractual relation-
ship, express or implied, could be seriously argued
— it was held by the Supreme Court of Canada,^®
on appeal from the Exchequer Court, that no right
to indemnity existed. This decision was affirmed
by the Privy Council;^ and the judgment of that

^The Dominion Statute is R. S. C. (1906), c. 140, the
*' Exchequer Court Act."

* Case cited in note 10, infra.

» The question as to " Indians and lands reserved for the
Indians" will, of course, be more fully dealt with later. See
post, p. 633.

^° Indian Treaty Indemnity Case (Ontario v. Canada), 42 S.
C. R. 1. reversing 10 Exch, Ct. R. 445 (Burhidge, J.)

» (1910), A. C. 637; 80 L. J. P. C. 32.

392 CANADIAN CONSTITUTION: SELF-GOVERNMENT.

tribunal, it is conceived, fully supports what has
been said above. It should be noted, however, that
the question as to *^ the liability of the Ontario
government to carry out the provisions of the treaty
so far as concerns future reservations of land for
the benefit of the Indians '' was left open by the
Board; but the earlier decision in the Special Re-
serves Case ^ to the effect that any definite reserve
'^ could only be effectually made by the joint action
of the two governments,^' seems to put the obliga-
tion of Ontario no higher than ^^ an honourable en-
gagement '^ only, which no Court could measure or
enforce. The particular question, no doubt, may
never arise, as statutory agreements have been
made for joint action in the selection of reserves;
but the suggestion that the Dominion by its legisla-
tion and by treaty thereunder could place any legal
obligation upon a province to part with any portion
of its public lands without its own consent, seems
irreconcilable with the principles laid down in the
earlier cases. What Court could measure the ex-
tent of the obligation or usurp the right of His
Majesty's provincial government to decide for it-
self how far it would be just to the province to im-
plement a possibly impolitic and extravagant Do-
minion bargain to which the province, ex hypothesi,
was not a party V

In conclusion upon this branch of our subject,
as well as in affirmance of the exclusive right of
each government in Canada to control its public
property, the following passage from the judgment
of Mr. Justice Duff, in the Treaty Indemnity Case,^
is cited:

''Ont. Mining Co. v. Seybold (1903), 73; 72 L. J. P. C. 5.

" See ante, p. 136 et seq., as to the power of the Crown to affect
private rights or alter the law by treaty.

" 42 S. C. R. at p. 127. Maclennan, J., concurred simplioiter
with Duff, J.; and the judgment of the Privy Council is hased
upon the principle stated in this extract.

A FEDERAL UNION: PRINCIPLES INVOLVED. 393

" The Crown on the advice of the Legislature of a pro-
vince (acting within the limits prescribed by the * British
North America Act") may authorize the undertaking on
behalf of the province of a financial or other obligation. 1
do not think the Act creates any other agency having auth-
ority to fasten upon a province as such any such obligation.
The view advanced on behalf of the Dominion, as I have
just indicated it, is, of course, the negation of this; but, as
I conceive, that view is incompatible with the true view of
the status of the provinces under the British North America
Act

" The independence of the provinces as regards their
control of the property and revenues appropriated to them
by the Act has been emphasized in a series of decisions;
and it has been frequently pointed out that the parts of the
Act in which property and revenues are declared to " belong
to " or to be " the property of " the provinces import simply
that the public property and revenues referred to while con-
tinuing to be vested in the Crown are made subject to the
exclusive disposition of the provincial legislatures." ^ . . .

"I am unable to reconcile these views touching the con-
stitutional position of the provinces and the measure of con-
trol conferred upon the provincial legislatures respecting
the property and revenues vested in them with the conten-
tion that the grant to the Dominion of legislative power in
respect of the subjects enumerated in section 91 implies the
right in the exercise of that power to dispose, indirectly
(without the consent of the provincial legislatures) of such
properties and revenues by fastening upon the provinces
without any syiih consent obligations of a financial charac-
ter. This view, if accepted, would, 'I think, be simply de-
structive of what Lord Watson in the passage qiuoted above
describes as '^the independence and autonomy of the pro-

» St. Catherines Milling Co. v. R., 14 App. Cas. 46; 58 L. J. P. C.
59; Mercer's Case, 8 App. Cas. 767; 52 L. J. P. C. 84; and the
Fisheries Case (1898), A. C. 70; 67 L. J. P. C. 90; are then cited
and Quotations extracted.

394 CANADIAN CONSTITUTION: SELF-GOVERNMENT.

III. — Necessity for Conjoint Action.

A federal union, as has been well said, has the
defects of its qualities. There are some things per-
haps that cannot be done at all ; at air events, there
are things that cannot be done in the way and shape
in which they could be done by the one legislature
of a legislative union.^ The Crown's proprietary
rights in Canada as they exist under the British
North America Act cannot be altered, except by con-
joint action, and disputes between governments in
Canada can be ^submitted to judicial determination
only by agreement. But, apart from the relations
inter se of the various governments, there are cases
in which the interest of the public cannot be fully
conserved, in which great evils may flourish, unless
by concerted action on the part of the federal and
provincial authorities the situation is met, the evil
suppressed. These propositions, it is conceived, are
fully supported by decided cases. For example:

Public rights. — The adjustment of the rights or
just claims of the Indians who are under federal
wardship, both as to their persons and property,
and of the provinces to whom belong the lands upon
which the burden of the *' Indian title *' rests, can
be effected satisfactorily only by harmonious con-
cert. In dealing with the Indians, the Dominion
government may desire to establish special reserves
in which the Indians will possess a higher pro-
prietary right than their aboriginal title gives them
over the area to be surrendered ; and this cannot be
done without the concurrence of the provincial
government within whose jurisdiction the lands lie.^

" The Crown acts on the advice of Ministers in making
treaties; and, in owning public lands, holds them for the

* Mr. Edward Blake, arguendo^ in the Indian Lands Case.
^ Ontari(3i Mining Go. v. Seybold (1903), A. C. 73; 72 L. J.
P. C. 5.

A FEDERAI, UNION: PRINCIPI.ES INVOLVED. 395

good of the commuiiity. When differences arise between
the two governments in regard to what is due to the Crown
as maker of treaties from the Crown as owner of public
lands, they must be adjusted as though the two govern-
ments are separately invested by the Crown with its rights
and responsibilities as treaty maker and as owner respec-
tively."«

Affain, mining rights in the ^^ Bailway Belt^* of
British Columbia can be satisfactorily dealt with
and fully vested in private parties only by the con-
joint action of the federal and provincial authorities.
The Crown in right of Canada is possessed of the
public land in that belt, including the baser metals ;
while the right to gold and silver is held by the
Crown in right of the province.^ The miner's grant
to be practically effective must come from the
Crown in both capacities.^* And the same is true
of the right to the use of water from streams which
flow in one part of their course over provincial or
private lands and over the federal lands of the belt
in another.^** Concerted action is necessary if a
uniform and practical code is to be established.

Again, the due administration of justice requires
concerted action. The provinces have jurisdiction
to constitute, maintain, and organize provincial
courts (sec. 92, No. 14) ; but the appointment and
payment of the Judges of the Superior District and
County Courts is in the hands of the federal govern-
ment {sees. 96, 100). Eefusal to co-operate might
easily result in chaos.

"" Indian Treaty Indemnity Case (19ia), A. C. 637; 80 L. J.
P. C. 32. The two governments are invested by the Act of the
Crown-ln-parliament (Imperial), that is to say, by the British
North America Act, with these distinct and independent rights.
Pro hue vice Sovereignty is divided.

^Preoions Metals Case, 14 App. Cas. 295; 58 L. J. P. C. 88.

^" See, however, post, p. 624, note 2.

^'Burrard Power Co. v. R. (1911), A. G. 87; 80 L. J. P. C. 69;
Re B. C. FisheHes (1914), A. C. 153; 83 L. J. P. C. 169.

396 CANADIAN CONSTITUTION: SELF-GOVEENMENT.

Private rights, — The same necessity exists in
the field of private rights, personal and corporate.
For example, the provinces control local works and
undertakings other than those specified (sec. 92,
No. 10) ; amongst those specified are federal rail-
ways. The just claims of the public in regard to
traffic, freight and passenger, passing over both a
federal and a provincial railway can be satisfac-
torily met only by concerted action on the part of all
the governments concerned, federal or provincial.^

The litigation over the Temporalities Ijund^
the Presbyterian Church affords another example.
The division of (old) Canada into the two provinces
of Ontario and Quebec left corporations created by
the parliament of (old) Canada in a peculiar situa-
tion. By section 129 of the British North America
Act, all pre-existing laws in force in (old) Canada,
Nova Scotia and New Brunswick were continued,
subject to be repealed, abolished, or altered by the
parliament of Canada or by the legislature of On-
tario or Quebec ^^ according to the authority of the
parliament or of that legislature under this Act.'^
The result would be that in a case where the objects
of incorporation were clearly '^ provincial objects '*
as to Ontario or Quebec as the case might be, the
Act of Incorporation would, after Confederation, be
a provincial statute; in all others, it would be a
federal or Dominion Act. The Board for the man-
agement of the Temporalities Fund had its head
office in Montreal, the funds were largely invested
in the province of Quebec, but the beneficiaries were
in both provinces and the Synod of the Church
which had some measure of control over the Board
was not local to either of the new provinces. An
Act of the Quebec legislature providing for the

^Through Traffic Case (1912), A. C. 333; 81 L. J. P. C. 145;
43 S. C. R. 197.

A FEDERAL UNION I PRINCIPLES INVOLVED. 397

future disposal of this fund upon the taking place
of the contemplated union of the various Presby-
terian bodies throughout the Dominion was held
ultra vires. The province of Ontario had passed a
similar statute. But it was held that the corpora-
tion and the corporate funds were not capable of
division according to the limits of provincial
authority and that a re-arrangement, such as con-
templated, could be accomplished only by the con-
current action of all three legislatures. The two
provincial Acts could not operate to repeal a federal
statute and so work a dissolution of the corporation,
That could only be done by a federal Act ; after
which the fund could be divided on provincial lines
and in each province be committed to the control of
a provincially incorporated body.^

A similar difficulty arose in attempting to trans-
fer an existing federal railway to the government
of Quebec, with a view to amalgamating it with a
provincial road. Federal legislation was held neces-
sary to work a dissolution of the existing corpora-
tion or to transfer its undertaking.^

IV. — Decisions of United States' and Australian

Courts.

(a) United States' Cases. — There is another
matter which merits mention in this place, the ex-
tent, namely, to which Canadian Courts may avail
themselves of the decisions of the United States
Courts as to the powers of Congress and the State
legislatures respectively. They are not, of course,
authorities binding upon our Courts, but under
proper safeguards are very valuable aids to the

'DoUe V. Temp. Fund Board, 7 App. Cas. 136; 51 L. J. P. C. 26.
^BourffOin v. Mont., 0. d 0. Ry., 5 App. Gas. 381; 49 L. J. P. C.
68.

398 CANADIAN" CONSTITUTION: SELF-GOVERNMENT.

study of the British North America Act/ The real
difficulty, the risk even, in utilizing them for pur-
poses of illustration arises from the difference not
only in the principle, but also in the method, of
division. There are certain matters on which neither
the Dominion parliament nor a provincial legisla-
ture can legislate f and so, under the American sys-
tem, there are certain laws which neither Congress
nor a State legislature can pass. But there is not
the slightest ground for comparison as to the nature
and character of the subjects which are withheld
from the legislative competence of Canadian legisla-
tures and theirs, respectively. Canadian legis-
latures are debarred from legislating upon certain
matters because those matters are deemed to be of
Imperial concern, while the legislative power of
both Congress and the State legislatures is circum-
scribed mainly in favor of individual liberty;'^* and,
in some of the State constitutions more lately
adopted, the limitations on the legislative power of
the State legislatures certainly go to very extreme
lengths.^ It cannot be said, therefore, in reference
to the American system that if power over a certain
subject matter is not with Congress, it must be with
the State legislatures, for it may be with neither.
The ** people of the United States,*' as a grand
aggregate, have limited the power of Congress, and
the people of the individual States, viewed as
smaller aggregates, have likewise limited the sphere
of authority of the different State legislatures. The
matters allotted to Congress are, in a sense, speci-
ally enumerated, the unenumerated residuum being
reserved (subject to certain prohibitions set out in

* See the remarks of Hagarty, C.J., in LeproJion v. Ottavm, 2
O. A. R. at p. 533.

" See Part I. of this book.

"• See Art. I., ss. 9 and 10.

'Bryce's "American Commonwealth," Vol. I., 423 et seq.

A FEDERAIv UNION: PRINCIPI^ES INVOLVED. 399

the constitution of the United States)^ to the States
or to the people; but the State legislatures again
may be, and in many cases are, under the State con-
stitutions, bodies with specially enumerated powers.
In short, in the American system there are matters
over which no body has legislative power, matters
held in reserve, as it were, by the people of the
United States or by the people of the respective
States.

Confining attention to Congress: After the
enumeration of the special matters (themselves
described in very comprehensive terms) over which
the Congress is to have legislative 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 " :

and under this clause, as construed by Marshall and
his successors, the powers of Congress in relation to
the national government of the United States can
hardly be said to be specially enumerated powers
only.**

Nothing short of the most thorough mastery of
the United States constitutional system would war-
rant one in drawing analogies between the line of
division they have adopted and that drawn by the
British North America Act. The Judicial Com-
mittee of the Privy Council, while not slow to ex-
press their admiration for the Supreme Court of the
United States, and the, eminent jurists who from
time to time have occupied seats upon that tribunal,

'Art. I., s. 10.
« Art. I., s. 8.

'^^Woodrow Wilson, "Congressional Government;" see ante,
p. 341.

400 CANADIAN constitution: SELF-GOVERNMENT.

have always deprecated any attempt to draw
analogies between the Canadian and the American
systems :

Their Lordships have been invited ... to apply to
the construction of the Federation Act the principles laid
down for the United States by Chief Justice Marshall.
Every one would gladly accept the guidance of that great
judge in a parallel case. But he was dealing with the consti-
tution of the United States. Under that constitution, as
their Lordships understand, each State may make laws for
itself, uncontrolled by the federal power, and subject only
to the limits placed by law on the range of subjects within
its jurisdiction. In such a constitution. Chief Justice Mar-
shall found one of those limits at the point at which the ac-
tion of the state legislature came into conflict with the power
vested in Congress. The appellant invokes that principle
to support the conclusion that the Federation Act must be
so construed as to allow no power to the provincial legisla-
tures, under section 92, which may by possibility, and if ex-
ercised in some extravagant way, interfere with the objects of
the Dominion in exercising their powers under section 91.
It is quite impossible to argue from the one case to the other.
Their Lordships have to construe the express words of an Act
of parliament 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 pass laws for itself except under the
control of the whole acting through the Governor-General.
And the question which they have to answer is whether the
one body or the other has power to make a given law."

This passage suggests that, in the view of the
committee, the absence of the power of disallowing
state legislation may have led the United States
Courts to scrutinize that legislation more closely,
and may have caused the adoption of a wide inter-
pretation of the article of the United States Con-
stitution conferring power upon Congress '^ to
make all laws which shall be necessary and proper

A FEDERAIy UNION: PRINCIPI.ES INVOLVED. 401

for carrying into execution ^' the enumerated
powers.^

By giving a wide scope to the ^ * implied powers ' '
of Congress and by refusing to sit in judgment upon
the view taken by Congress as to the necessity for
its legislation, so long as its aim appeared legitimate
to the Court/^ the Supreme Court of the United
States has established the proposition that *^ the
States have no power, by taxation or otherwise, to
impede, burden or in any manner control any means
or measures adopted by the federal government for
the execution of its powers/'^ It is to be noted, too,
that there are not in the Constitution of the United
States two groups of class enumeration, federal and
state, to be interpreted and reconciled as under the
British North America Act; so that, with us, a
power which might readily be implied under the
general words of section 91 cannot be so implied,
because some clause of section 92 forbids the impli-
cation, and vice versa. With them, on the other
hand, there is not any class enumeration for the
States; they have an unenumerated residuum; and
full play, therefore, has been possible for the doc-
trine of implied powers in support of federal Acts.

{h) Australian Cases. — The Constitution of
Australia was intended, it is said, to follow the
United States' rather than the Canadian pattern.
Upon this view, the High Court of Australia held,
upon the principle elaborated by Chief Justice

«See Atty.-Gen. (Que.) v. Queen Ins. Co. (1878), 22 L. C. Jur.
309; per Ramsay, J.; Reg. v. Gold Comm., 1 B. C. (pt. 2) 260, per
McCreight, J.

^"^ United States v. Fisher (1804), 2 Cranch. 358; McCulloch v.
Maryland (1819), 4 Wheat. 316; Story on the Const., 5th ed..
Vol. II., 153.

^ Henry Hitchcock, LL.D., in Mich. Univ. Law Lectures, 1889,
at p. 94 (G. P. Putnam's Sons, London and New York, 1889).

CAN. CON. — 26

402 CANADIAN CONSTITUTION : SELF-GOVERNMENT.

Marshall in McCulloch v. Maryland,^ that State leg-
islation could not impose taxation upon federal offi-
cials. But the Privy Council declined to recognize
the analogy and reversed the colonial decision.^
Nevertheless, the view is still, apparently, strongly
held in Australia that the analogy exists and that
United States decisions are peculiarly helpful in
construing the Australian Commonwealth Act. The
Australian States have an unenumerated residuum;
jj^ but whether this will result in the adoption of the
wide United States doctrine of implied powers in
support of federal legislation is questionable.^^ The
uncertainty of the position, however, makes it dan-
gerous to express any decided view.

In conclusion upon the subject matter of this
chapter, this quotation may be pardoned:

"We live under a federal system of government. With
regard to certain matters the Canadian people speak as a
unit; while, as to other matters we sipeak separately and, if
we choose, diversely by provinces. The system was brought
to birth only after long travail. The minds of our best men
were long occupied in fixing upon the proper line of division
between matters of general or Canadian concern and matters
of more immediately local or provincial concern; and the
result of their labours as embodied in the British North
America Act should be loyally recognized and respected. No
doubt honest differences of opinion may exist in many cases
as to where the line is drawn in that Act or as to the ques-
tion on which side of the line a particular matter should
properly fall. But to suggest doubt where no real doubt
exists, and particularly as to matters apt to inflame, is not
to be commended.^^*

2 (1819), 4 Wheat. 316.

'Wehb V. Outrim (1907), A. C. 81; 76 L. J. P. C. 25. See note
ante, p. 374. See also post p. 641.

^^ See Atty.-Gen. for Australia v. Colonial Sugar R. Co. (1914),
A. C. 237; 83 L. J. P. C. 154.

*In re Nakane (1908), 13 B. C. at p. 376.

A FEDERAL UNION: PRINCIPI.ES INVOLVED. 403

The best qualities of restraint and forbearance,
as well as a loyal desire for co-operation in all that
tends to Canadian well-being, may find full play
under the system of federal government established
by the British North America Act.

CHAPTER XX.

The Division of the Field.

There are certain sections of the British North
America Act which confer legislative power of a
constituent character in relation to the conduct of
business in the different legislatures and in relation
to elections and the electoral franchise which have
already been discussed at sufficient length.' These
may be classed as of a subjective character. As
said by Chief Justice Ritchie:^

"It will be observed that of the classes of subjects thus
enumerated either in respect to the powers of the provincial
legislatures or those of the parliament of Canada, there is
not the slightest allusion, direct or indirect, to the rights
and privileges of parliament or of the local legislatures,^ or
to the election of members of parliament or of the houses
of assembly, or the trial of controverted elections, or pro-
ceedings incident thereto. The reason of this is very easily
found in the statute and is simply that, before these specific
powers of legislation were conferred on parliament and on
the local legislatures, all matters connected with the consti-
tution of parliament and the provincial constitutions had
been duly provided for, separate and distinct from the distri-
bution of legislative powers and, of course, overriding the
powers so distributed. For, until parliament and the local
legislatures were duly constituted, no legislative powers, if
conferred, could be exercised.'^

What may be called, then, the objective division
of the field for legislative purposes is provided for

^Chapter V., ante, p. 38 et seq.

^ Yalin v. Langlois, 3 S. C, R. 1, at p. 11.

' Section 92, No, 1 (" the amendment from time to time . . .
of the Constitution of the Province, etc.") has since been held to
cover these matters in the provincial sphere. See ante, p. 45.

THE DIVISION OF THE FIELD. 405

in Part VI. of the Act (sections 91 to. 95, both in-
clusive), in section 101, and in section 132; though
the appropriation clauses of Part VIII. should not
be overlooked.''

Keference, however, should first be particularly
drawn to section 129 of the Act:

129. Except as otherwise provided 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 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
cf 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
parliament or of that legislature under this Act.

This body of laws and legal institutions may be
considered the raw material, so to speak, upon
which the post-Confederation legislatures were to
operate, each according to its authority under tKe
British North America Act. It must be borne in
mind that there are many laws, common law as well
as statutory, on many subjects, which have come
down from pre-Confederation days; and these can
be altered, modified, or repealed only by that legis-
lative body which could now enact them were they
non-existent/ The division, therefore, effected by
the Act was a present division of the whole body of
existing law in its widest sense, as well as a division
of the field for future exercise of legislative

* See ante, p. 325, et seq.

" Dobie V. Temporalities Fund Board, 7 App. Cas. 136 ; 51 L. J.
P. C. 26; Local ProMMtion Case (1896), A. C. 343; 65 L. J. P. C.
26.

406 CANADIAN CONSTITUTION: SELF-GOVERNMENT.

authority. At once upon the Act taking effect, that
portion of existing law in each province which fell
within the sphere of the authority of the parliament
of Canada became a body of federal law, while the
remainder might not inaptly be styled a body of
provincial law.

It should be noted that the exception as to Im-
perial Acts in force in the pre^Confederation pro-
vinces refers, of course, to Imperial Acts of express
colonial application. The section emphasizes what
has been already said,* that such Acts cannot be re-
pealed or amended by Canadian legislation, unless,
indeed, permission to that end is contained in the
Imperial Act itself.

But of the whole body of law within the ken of
self-government, the British North America Act
works a division as follows :

VI. — Distribution of Legislative Powers,

Powers of the Parliament.

91. It shall be lawful for the Queen by and with
the advice and consent of the Senate and House of
Commons, to make laws for the peace, order, and
good government of Canada, in relation to all
matters not coming within the classes of subjects by
this Act assigned exclusively to the legislatures
of the provinces ; and for greater certainty, but not
so as to restrict the generality of the foregoing
terms of this section, it is hereby declared that (not-
withstanding anything in this Act) the exclusive
legislative authority of the parliament of Canada
extends to all matters coming within the classes of
subjects next hereinafter enumerated; that is to
say:

•See ante, p. 56.

THE DIVISION OF THE FIELD. 407

1. The public debt and property.

2. The regulation of trade and commerce.

3. The raising of money by any mode or system of taxation.

4. The borrowing of money on the public credit.

5. Postal service.

6. The census and statistics.

7. Militia, military and naval service, and defence.

8. The fixing of and providing for the salaries and allowances

of civil and other oflBcers of the government of Canada.

9. Beacons, buoys, lighthouses, and Sable Island.

10. Navigation and shipping.

11. Quarantine and the establishment and maintenance of mar-

ine hospitals.

12. Sea coast and inland fisheries.

13. Ferries between a province and any British or foreign

country, or between two provinces.

14. Currency and coinage.

15. Banking, incorporation of banks, and the issue of paper

money.

16. Savings banks.

17. Weights and measures.

18. Bills of exchange and promissory notes.

19. Interest.

20. Legal tender.

21. Bankruptcy and insolvency.

22. Patents of invention and discovery.

23. Copyrights.

24. Indians and lands reserved for the Indians.

25. Naturalization and aliens.

26. Marriage and divorce.

27. The criminal law, except the constitution of courts of crimi-

nal jurisdiction, but including the procedure in criminal
matters.

28. The establishment, maintenance, and management of peni-

tentiaries.

29. Such classes of- ffnhpcj[;s as are expressly excepted in the

enumeration of the classes of subjects by this Act as-
signed exclusively to the legislatures of the provinces.

And any matter coming within any of the classes of
subjects enumerated in this section shall not be
deemed to come within the class of matters of a
local or private nature comprised in the enumera-
tion of the classes of subjects by this Act assigned
exclusively to the legislatures of the provinces./, o^ 'z^*: ^'

Exclusive Powers of Provincial Legislatures.

92. In each province the legislature may exclu-
sively make laws in relation to matters coming
within the classes of subjects next hereinafter
enumerated, that is to say:

1. The amendment from time to time, notwithstanding any-
thing in this Act, of the constitution of the province,
except as regards the office of Lieutenant-Governor.

408 cANADiAN^ constitution: self-government.

2. Direct taxation within the province in order to the raising

of a revenue for provincial purposes.

3. The borrowing of money on the sole credit of the province.

4. The establishment and tenure of provincial offices, and the

appointment and payment of provincial officers.

5. The management and sale of the public lands belonging to

the province and the timber and wood thereon.

6. The establishment, maintenance and management of public

and reformatory prisons in and for the province.

7. The establishment, maintenance, and management of hospi-

tals, asylums, charities,, and eleemosynary institutions
in and for the province, other than marine hospitals.

8. Municipal institutions in the province.

9. Shop, saloon, tavern, auctioneer, and other licenses in order

to the raising of a revenue for provincial, local or muni-
cipal purposes.

10. Local works and undertakings other than such as are of the

following classes, —

a. Lines of steam or other ships, railways, canals,
telegraphs, and other works and undertakings
connecting the province with any other or
others of the provinces, or extending beyond
the limits of the province ;

&. Lines of steamships between the province and
any British or foreign country ;

c. Such works as, alt-hough wholly situate within
the province, are before or after their execu-
tion declared by the parliament of Canada to
be for the general advantage of Canada, or for
the advantage of two or more of the provinces.

11. The incorporation of companies with provincial objects.

12. The solemnization of marriage in the province.

13. Property and civil rights in the province.

14. The administration of justice in the province, including the

constitution, maintenance and organization of provincial
courts, both of civil and of criminal jurisdiction, and
including procedure in civil matters in those courts.

15. The imposition of punishment by fine, penalty, or imprison-

ment 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.

16. Generally all matters of a merely local or private nature in

the province.

Education.

93. In and for each province the legislature may
exclusively make laws in relation to education, sub-
ject 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;

THE DIVISION OF THE FIELD. 409

(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 subjects shall be and the same are
hereby extended to the dissentient schools
of the Queen's Protestant and Eoman
Catholic subjects in Quebec;

(3) Where in any province a system of separate

or dissentient schools exists by law at the
union, or is thereafter established by the
legislature of the province, an appeal shall
lie to the Governor- General in Council
from any Act or decision of any provincial
authority affecting any right or privilege
of the Protestant or Eoman Catholic
minority of the Queen's subjects in rela-
tion to education.

(4) In case any such provincial law as from time

to time seems to the Governor-General in
Council requisite for the due execution of
the provisions of this section is not made,
or in 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 circumstances of each case require,
the parliament of Canada may make re-
medial laws for the due execution of the
provisions of this section and of any de-
cision of the Governor-General in Council
under this section.^

^ This section, 93, applies in all the provinces except Manitoba,
Alberta, and Saskatchewan. In those provinces some modifica-
tions of the section have been introduced as will appear later.

410 CANADIAN CONSTITUTION: SELF-GOVERNMENT.

Uniformity of Laws in Ontario, Nova Scotia and
New Brunswick.

94. Notwithstanding anything in this Act, the
parliament of Canada may make provision for the
uniformity of all or any of the laws relative to pro-
perty and civil rights in Ontario, Nova Scotia and
New Brunswick, and of the procedure of all or any
of the Courts in those three^provinces and from and
after the passing of any Act in that behalf the
power of the parliament of Canada to make laws in
relation to any matter comprised in any such Act
shall, notwithstanding anything in this Act, be un-
restricted ; 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.

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 legis-
lature of a province relative to agriculture or to
immigration shall have effect in and for the pro-
vince as long and as far only as it is not repugnant
to any Act of the parliament of Canada.

101. The parliament of Canada may, notwith-
standing anything in this Act, from time to time,
provide for the constitution, maintenance, and or-
ganization of a general Court of Appeal for Canada,

THE DIVISION OF THE FIELD. 411

and for the establishment of any additional Courts
for the better administration of the laws of Canada.

132. The parliament and government of Canada
shall have all powers necessary or proper for per-
forming the obligations of Canada or of any pro-
vince thereof, as part of the British Empire, to-
wards foreign countries, arising under treaties be-
tween the Empire and such foreign countries.

CHAPTEE XXL

The Scheme of Distkibution : View of the Privy

Council.

A perusal, the most cursory, of the classes
enumerated in sections 91 and 92 reveals that if, in
every case, the full natural meaning is to be given to
the words employed, the classes must inevitably
overlap. Such a conflict could not have been in-
tended;^ the Act is clear that the jurisdiction in each -
case is exclusive; and, therefore, in the case of one
of the sections, or of the other, or of both, that full
natural meaning cannot be given. If either one of
them is to be so read as to give to the language used
in every one of its class enumerations its full natural
meaning, the other section must necessarily be read
as a subordinate section, and the scope of its various
classes so limited as to exclude those subject
matters monopolized by the classes of the favored
section. This method was favored by the earlier
decisions of the Supreme Court of Canada. Section
91 was set up as the predominant section, and this
formula was suggested, and practically adopted by
the majority of the Court, as an unerring guide in
determining the line of division:

"All subjects of whatever nature not exclusively assigned
to the local legislatures are placed under the supreme
control of the Dominion parliament; and no matter is ex- ^

clusively assigned to the local legislatures unless it be within
one of the subjects expressly enumerated in section 92,
and at the same time does not involve any interference [
with any of the subjects enumerated in section 91." ^

^Parsons' Case, 7 App. Cas. 96; 51 L. J. P. C. 11. And see per
Mackay, J., in Ex p. Leveille (1877), 2 Steph. Dig. at p. 446;
2 Cart, at p. 349.

' Per Gwynne, J., in Frederickton v. Reg., 3 S. C. R. 505. See
also Parsons' Case, 4 S. C. R. at p. 330.

SCHEME OF DISTRIBUTION : VIEW OP PRIVY COUNCIL. 413

Fortunately, perhaps, for the provinces, the
Privy Council has decisively rejected this formula,
while at the same time adopting? it up to a certain
point as a method of enquiry. The labors of the
Courts would certainly have been materially light-
ened had the Committee accepted this formula.
While, in a sense, it reconciled sections 91 and 92, it
did away with any necessity for an attempt to re-
concile their respective class enumerations. Had it
been finally adopted, the provinces would have be-
come large municipalities merely, and the Union
would be legislative rather than federal.

Although the Judicial Committee of the Privy
Council has frequently reiterated the caution
against ^ ' entering more largely upon an interpreta-
tion of the statute than is necessary for the de-
cision of the particular question in hand,''^ stress of
circumstances has gradually forced a wider exposi-
tion of the scheme of distribution effected by these
sections, until it is now possible to outline it in a few
fairly exhaustive propositions deducible from the
judgments of that Court of last resort. But before
attempting to formulate any such propositions, it
may be useful to collect in one place those passages
in Privy Council judgments in which the scheme is
discussed in general terms. A study of these will
disclose an interesting evolution.

1875. — L'Union St. Jacques v. Belisle^

The question was as to the validity of a pro-
vincial Act (Quebec) which, in view of the embar-
rassed state of the society's finances, forced com-

"" Parsons' Case, 7 App. Cas. 96; 51 L. J. P. C. 11. One of the
latest references to this passage is in the Manitoba Liquor Act
Case (1902), A. C. 73; 71 L. J. P. C. 28, in which it is described
as "advice often quoted but not, perhaps, always followed." See
also the John Deere Plow Co. Case, extract, post p. 444.

*L. R. 6 P. C. 31; 1 Cart. 63.

414 CANADIAN constitution: self-government.

mutation upon certain annuitants, of whom Dame
Julie Belisle, the respondent, was one. This Aet
was attacked as legislation relating to ^^ bankruptcy
and insolvency '^ {sec. 91, No. 21) ; but was upheld
by their Lordships as relating to a matter ^* of a
merely local or private nature in the province ' '
{sec. 92, No. 16). The scope of section 91 is thus
discussed : "^

" Their Lordships observe that the scheme of enumera-
tion in that section is to mention various categories of gen-
eral subjects which may be dealt with by legislation. There
is no indication in any instance of anything being contem-
plated except what may be properly described as general
legislation; such legislation as is well expressed by Mr. Jus-
tice Caron when he speaks of the general laws governing
Faillite, bankruptcy and insolvency, all which are well-
known legal terms expressing systems of legislation with
which the subjects of this countiy and probably of most
other civilized countries are perfectly familiar" — per Lord
Selbome.

If this language is to be taken literally, special
or ^ ^ private bills ' ' legislation by the federal parlia-
ment would be entirely precluded. Such legislation,
however, is recognized in many cases ^ and was up-
held in one case in the Supreme Court of Canada in
1891, where the argument suggested was expressly
advanced.® Such legislation is, in fact, of yearly
occurrence and has never been seriously questioned.
Under section 91, No. 26 (^ ^marriage and divorce")
legislation has so far been exclusively of this char-
acter. The above passage has, nevertheless, never
been adversely criticized in any subsequent judg-
ment of the Privy Council. But if the view sug-
gested were really entertained in 1875, it cannot be

'E.g., Col. Bldg. As». v. Atty.-Gen. (Que.), 8 App. Cas. 157; 53
L. J. P. C. 27; Comp. HydrauUque v. Continental Heat Co. (1909),
A. C. 194; 78 L. J. P. C. 60.

• Quirt v. Reg. 19 S. C. R. 510.

SCHEME OF DISTRIBUTION I VIEW OE PRIVY COUNCIL. 415

supported now, although as late as 1880, the Privy
Council again spoke of the power of the parliament
of Canada under section 91, No. 21 {'' bankruptcy
and insolvency '') as a power authorizing interfer-
ence with property and civil rights, " so far as a
general law relating to those subjects might affect
them.''^ As a matter of fact, the language used in
enumerating the classes of section 92 is quite as
general as that used in section 91,^ and in each case
the power is a plenary power of sovereign legisla-
tion in relation to all matters coming within the
classes of subjects therein enumerated, as the Act
expressly states. The power is not to legislate on
each class as a whole (though that is necessarily
implied), but on any matter, great or small, falling
within the class.

1875.— Dow V. Black.'''

A provincial Act (New Brunswick) authorizing
a particular town to raise money by the issue of
municipal debentures as a bonus to a railway (al-
leged to be federal), and to levy a rate upon the in-
habitants to meet such debentures was upheld as
legislation in relation to '^ direct taxation within
the province in order to the raising of a revenue for
provincial purposes '' (sec. 92, No. 2) or, in the al-
ternative, as relating to a matter ^ ^ of a merely local
or private nature in the province " {sec. 92, No. 16).
It was held not to be properly classed as a law in
relation to a federal railway, even if the road were,
as contended, a federal railway. The division ef-
fected by sections 91 and 92 is thus described :

" Sections 91 and 92 purport to make a distribution of
legislative power between the parliament of Canada and the

^ Cushing v. Dupuy: see extract, post, p. 418.

^ See extract from the References Case, post, p. 442.

"« L. R. 6 P. C. 272; 44 L. J. P. C. 52.

416 CANADIAN constitution: self-government.

provincial legislatures, section 91 giving a general power
of legislation to the parliament of Canada subject only to
the exception of such matters as by section 92 were made the
subjects upon which the provincial legislatures were exclu-
sively to legislate " — per Sir James W. Colville.

This passage is little more than a paraphrase of
the opening clause of section 91, emphasizing, per-
haps, the exhaustive character of the distribution of
legislative power effected by the British North
America Act. The entire field is given over to the
federal parliament^ after the provincial sphere is
fully occupied ; but, as will appear, the largest resi-
duum of unenumerated subjects is really with the
provinces under the grant of power to make laws in
relation to '' generally all matters of a merely local
or private nature in the province '^ {sec. 92, No. 16)
as that item is now to be viewed.^

1879.— FaZm v. Langlois.^''

A Dominion Act imposing upon certain existing
provincial Courts the duty of determining election
petitions relating to federal elections was held not
to be a law in relation to '^ the administration of
justice in the province, including the constitution,
maintenance and organization of provincial Courts'^
{sec, 92, No. 14). It was not necessary to invoke
section 91 to support the Act, as section 41 was held
to be sufficient to warrant Dominion legislation upon
the subject of federal electionjtrials.^ Nevertheless,
their Lordships said:

"If the subject matter is within the jurisdiction of the
Dominion parliament it is not within the jurisdiction of
the provincial parliament, and that which is excluded by the

® See post, p. 449, et seq., 829.

^°5 App. Cas. 115; 49 L. J. P. C. 37.

^ See ante, p. 40.

\u^'

SCHEME OF DISTRIBUTION : VIEW OF PRIVY COUNCIL. 417

91st section from the jurisdiction of the Dominion parlia-
ment is not anything else than matters coming within the
classes of subjects assigned exclusively to the legislatures of
the provinces.'^' — per Lord Selbome.

And section 41 is then again referred to as making
it clear that the trial of election petitions could not
reasonably be held to fall within the administration
of justice, as that term is used in section 92 (No.
14).

In view of subsequent cases as to overlapping
areas and so-called concurrent powers, it has been
suggested ^ that the above passage should be some-
what modified ; that the phrase * * it is not within the
jurisdiction of the provincial parliament '' should
read '^ it is not, in its entirety, within the jurisdic-
tion, etc.'^ The question really is to determine the
subject-matter of legislation in each case, the ** pith
and substance " of the enactment.^

1880. — Gushing v. Dupuy^

The Insolvent Act of 1875 (Dominion), in addi-
tion to provisions usual in such enactments for the
compulsory transfer of the insolvent's assets to the
assignee in insolvency and for their realization and
distribution among creditors, contained provisions
for proceedings in the Courts and, amongst others,
one which made the decisions of certain Courts iiL
insolvency litigation final, so far as any aimeal as
of right was concerned. These provisions were at-
tacEed as being laws' in relation to (1), *^ property
and civil rights in the province '' {sec. 93, No. 13) \
and (2) ^' procedure in civil matters '' {sec. 92, No,

^ Lefroy, Lreg. Power in Canada, 347.

' See post, p. 484, et seq.

*5 Ai>p. Cas. 409; 49 L. J. P. C. 63.

CAN. CON. — 27

418 CANADIAN constitution: self-government.

14), They were, however, upheld as relating to
*^ bankruptcy and insolvency " (sec, 91, No. 21).
Although the discussion was limited to the question
of the legitimate effect of laws relating to. bank- ^
ruptcy and insolvency upon property and civil
rights and upon procedure in the Courts, the prin-
ciple is so obviously applicable to federal legisla-
tion upon many of the enumerated classes of section
91 — e.g., banking,^ copyright, navigation and ship-
ping, patents, federal railways and kindred under-
takings— that it is thought proper to quote the
passage here :

^^ 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
parhament 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 is obvious. It^
would be impossible to advance a step in the construction of
a scheme for the 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, realization,
and distribution of the estate, and the settlement of the lia-
bilities, of the insolvent. Procedure must necessarily form^»
an essential part of any law dealing with insolvency. It is
therefore to be presumed, indeed it is a necessary implica-
tion, that the Imperial statute, in assigning to the Dominion
parliament the subjects of bankruptcy and insolvency, in-
tended to confer on it legislative power to interfere with
property, civil rights, and procedure within the provinces,

^^ee^extract, pos?, p. 429, from the judgment of the Board in
Tennant v. Union Bank. In that extract a reference will be
found to Gushing v. Dupuy as a direct authority upon the prin-
ciple involved in the Tennant Case.

SCHEME OF DISTRIBUTION : VIEW OF PRIVY COUNCIL. 419

SO far as a general law relating to those subjects might affect
them." — per Sir Montague Smith.

Sir George Jessel, M.E., had suggested in an
earlier case ® the possibility of concurrent powers or
overlapping areas. The question" lirst assumes
practical shape before^ the Privy Council in Gushing
V. Dupuy, from which the above passage is extracted.
It has since been constantly to the front, as succeed-
ing extracts will show.

1881. — Citizens Ins. Co. v. Parsons ^ (usually re-
ferred to as Parsons' Case).

A prnvinci^l Aot (Ontario) providing for uni-
form conditions in fire insurance policies was at-
tacked as being legislation in relation to ' * the regu-
lation of trade and commerce '' (sec. 91, No. 2).
This contention was rejected and the Act was de-
clared intra vires as legislation relating to *^ pro-
perty and civil rights in the province '* (sec. 92, No.
13). The judgment of the Committee contains the
first comprehensive survey of the scheme of distri:^
bution undertaken by that tribunal:

" The most important question is one of those, already
numerous, which have arisen upon the provisions of the
British North America Aot, 1867, relating to the distribution
of legislative powers between the parliament of Canada and
the legislatures of the provinces ; and, owing to the very gen-
eral language in which some of these powers are described,
the question is one of considerable difficulty

"The scheme of this legislation, as expressed in the
first branch of section 91, is to give to the Dominion par-
liament authority to make laws for the good government of
Canada in all matters not coming within the classes of sub-
jects assigned exclusively to the provincial legislature. If

'Atty.-Gen. (Que.) v. Queen Ins. Co., 3 App. Cas. 1090.
'7 App. Cas. 96; 51 L. J. P. C. 11.

■^
^

420 CANADIAN constitution: self-government.

the 91st section had stopped here, and if the classes of sub-
jects enumerated in section 92 had been altogether distinct
and different from those in section 91, no conflict of legisla-
tive authority could have arisen. The provincial legislatures
would have had exclusive legislative power over the sixteen
classes of subjects assigned to them, and the Dominion par-
liament exclusive power over all other matters relating to the
good government of Canada. But it must have been fore-
seen that this sharp and definite distinction had not been and
could not be attained, and that some of the classes of sub-
jects assigned to the provincial legislatures unavoidably ran {/
into, and were embraced by, some of the enumerated classes
of subjects in section 91 ; hence an endeavor appears to have
been made to provide for cases of apparent conflict; and it
": .j» would seem that with this object it was declared in the second

branch of the 91st section, " for greater certainty, but not
so as to restrict the generality of the foregoing terms of this
section," that (notwithstanding anything in the Act) the ex-
clusive legislative authority of the parliament of Canada
should extend to all matters coming within the classes of
subjects enumerated in that section. With the same object,
apparently, the paragraph at the end of section 91 was in-
troduced, though it may be observed that this paragraph ap-
plies in its grammatical construction only to No. 16 of sec-
tion 92.'

" Notwithstanding this endeavor to give pre-eminence to
th3 Dominion parliament in oases of a conflict of powers, it
is obvious that in some cases where this apparent conflict
exists, the legislature could not have intended that the powers j
exclusively assigned to the provincial legislature should be
absorbed in those given to the Dominion parliament. Take
as one instance the subject * marriage and divorce,^ contained
in the enumeration of subjects in section 91 ; it is evident '
that solemnization of marriage would come within this gen-
eral description ; yet ' solemnization of marriage in the pro- '
vince' is enumerated among the classes of subjects in section
92, and no one can doubt, notwithstanding the general Ian- '
guage of section 91, that this subject is still within the ex-
clusive authority of the legislatures of the provinces. So
' the raising of money by any mode or system of taxation ' is

■:^jf^

SCHEME OF distribution: VIEW OF PRIVY COUNCIL. 421

enumerated among the classes of subjects in section 91 ; but,
though the description is sufficiently large and general to in-
clude ' direct taxation within the province in order to the
raising of a revenue for provincial purposes/ assigned to the
provincial legislatures by section 92, it obviously could not
have been intended that in this instance also the general
power should override the particular one. With regard to
certain classes of subjects, therefore, generally described in
section 91, legislative power may reside as to some matters
falling within the general description of these subjects in the
legislatures of the provinces. In these cases it is the duty )f
the Courts, however difficult it may be, to ascertain in what
degree, and to what extent, authority to deal with matters
falling within these classes of subjects exists in each legis-
lature, and to define in the particular case before them the
limits of their respective powers. It could not have been the
intention that a conflict should exist ; and in order to prevent
such a result, the two sections must he read together, and the
language of one interpreted and, where necessary, modified by
that of the other. In this way it may, in most cases, be found
possible to arrive at a reasonable and practical construction
of the language of the sections, so as to reconcile the respec-
tive powers they contain, and give effect to all of them. In
performing this difficult duty, it will be a wise course for
those on whom it is thrown, to decide each case which arises
as best they can, without entering more largely upon an in-
terpretation of the statute than is necessary for a decision of
the particular question in hand.

" The first question to be decided is, whether the Act im-
peached in the present appeal falls within any of the classes
of subjects enumerated in section 92, and assigned exclus-
ively 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
prima fade falls within one of these classes, of subjects, that
the further questions 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 91, and
whether the power of the provincial legislature is, or is not,
thereby overborne/' .... -^ ■

422 CANADIAN constitution: self-government.

The italicized passages constitute the essential
distinction between the formula of Mr. Justice
Gwynne quoted on a previous page ^ and the method
of enquiry adopted by the Privy Council. That
formula did away with the third enquiry, namely,
' ^ whether the power of the provincial legislature is,
or is not, thereby overborne,'^ and, as a necessary
consequence, with all necessity for a reconciliation
of the various class enumerations of sections 91 and
92. The statute impugned in Parsons' Case was a
provincial enactment, but in BusselVs Case ^ in the
next year the same method of enquiry was adopted
as to a Dominion Act, and it has since been often
reaffirmed by the Privy Council as the proper
method in regard to both federal and provincial leg-
islation. Its propriety rests upon the exhaustive
character of the distribution of legislative powers
effected by the British North America Act as now
authoritatively established.^*^

While it is not intended to discuss here the gen-
eral rules laid down in these judgments — that will
come later — it is desirable perhaps to indicate in
what respect, if any, the views expressed have been
radically modified in later cases. As to Parsons'
Case, the only serious departure has been as to the
application of the paragraph at the end of sec. 91.

^ See ante, p. 412.

« 7 App. Cas. 829; 51 L. J. P. C. 77.

^'>LamJ)&s Case (1887), 12 App. Cas. 575; 56 L. J. P. C. 87;
The References Case (1912), A. C. 571; 81 L. J. P. C. 210; and
see post, p. 483, et seq.

SCHEME OF distribution: VIEW OF PRIVY COUNCIL. 433

The Committee say that '' this paragraph applies
in its grammatical construction only to No. 16 of
sec. 92 "; but in the Local Prohibition Case^ in
1895 this view was abandoned and it is now held
that the paragraph correctly describes and was in-
tended to cover all the class-enumerations of sec.
92 as being, from a provincial point of view, of a
local or private nature. As will appear, this change
of view has had important consequences.

It may further be noted that when the two mat-
ters of marriage and taxation, used as illustrations
in Parsons' Case, themselves came up for consider-
ation, the Board adhered to the views expressed in
this case. It was held in the Marriage Eeference
Case ^ that legislation in relation to '' the solemniz-
ation of marriage in the province '' (sec. 92, No.
12) is within the exclusive authority of the pro-
vinces even to the extent of imposing conditions af-
fecting the validity of the marriage. And in
Lamhe's Case provincial powers in relation to
** direct taxation within the province " (sec. 92,
No. 2) were established upon a wide basis.

1882. — Russell v. Reg,^ (usually cited as RusselVs
Case.)

A Dominion statute, the Canada Temperance
Act, 1878, was attacked in this case as an invasion
of the provincial field in three respects : as being a
law in relation to (1) ^* shop, saloon, tavern, auc-
tioneer, and other licenses, in order to the raising
of a revenue for provincial, local, or municipal pur-
poses '' — sec. 92, No. 9; (2) *^ property and civil
rights in the province '^ — sec. 92, No. 13; (3) " gen-
erally, all matters of a merely local or private

* (1896), A. C. 348; 65 L. J. P. C. 26.
« (1912), A. C. 880; 81 L. J. P. C. 237.
»7 App. Cas. 829; 51 L. J. P. C. 77.

424 CANADIAN constitution: self-government.

nature in the province '' — sec. 92, No, 16. These
three grounds of objection are examined at length
and rejected; and the Act was upheld upon the
grounds appearing in the following extract:

" The general scheme of the British North America Act
with regard to the distribution of legislative powers, • and
the general scope and effect of sections 91 and 92, and their
relation to each other, were fully considered and commented
on by this Board in Parsons' Case.^ According to the prin-
ciple of construction there pointed out, the first question to
be determined is, whether the Act now in question falls
within any of the classes of subjects enumerated in section
92 and assigned exclusively to the legislature of the province.
If it does, then the further question would arise, namelr,
whether the subject of the Act does not also fall within one
of the enumerated classes of section 91, and so does not still
belong to the Dominion parliament. But if the Act does not
fall within any of the classes of subjects in section 92 no
further question will remain ; for it cannot be contended, and
indeed was not contended at their Ix)rdships' bar, that if the
Act does not come within one of the classes of subjects as-
signed to the provincial legislatures, the Parliament of Can-
ada had not, by its general power ^to make laws for the
peace, order, and good government of Canada,' full legisla-
tive authority to pass it

" Laws of this nature, designed for the promotion of pub-
lic order, safety, or morals, and which subject those who con-
travene them to criminal prosecution and punishment, be-
long to the subject of public wrongs rather than to that of
civil rights. They are of a nature which fall within thej
general authority of parliament to make laws for the ordei
and good government of Canada, and have direct relation to[
criminal law, which is one of the enumerated classes of sub-
jects assigned exclusively to the parliament of Canada. H
was said in the course of the judgment of this Board in the
case of Citizens v. Parsqns 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

* See extract, ante, p. 419.

SCHEME OF DISTRIBUTION : VIEW OF PRIVY COUNCIL. 425

could be made iby parliament for the peace, order, and good
government of Canada, which did not in some incidental way
affect property and civil rights; and it conld not have been
intended when assuring to the province exclusive legislative
authority on the subject of property and civil rights, to ex-
clude 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 he deter-
mined in order to ascertain the class of subject to which it
really belongs/' ....

" Parliament deals with the subject as one of general
concern to the Dominion upon which uniformity of legisla-
tion is desirable, and the parliament alone can so deal with
it. There is no ground or pretence for saying that the evil
or vice struck at by the Act in question is local or exists only
in one province, and that parliament, under color of general
legislation, is dealing with a provincial matter only. It is
therefore unnecessary to discuss the considerations which a
state of circumstances of this kind might present " — per Sir
Montague E. Smith.

The grounds put forward in the above passage
as indicating the view to be taken of the legislative
character of the Canada Temperance Act have been
much criticized and it is not going too far to say
that the views above expressed have been very
largely modified by subsequent decisions of the
Board. Such legislation must now be taken as
based solely upon the opening, residuary, ** peace,
order, and good government '^ clause of section 91,
and not upon any of the enumerated classes of that
section. The cases as to the liquor traffic will come
up for discussion in their proper place. Suffice it
to say here that the provinces may legislate freely,
even to the extent of provincial prohibition, so long
as the traffic is dealt with in its local provincial as-
pect ; but that, in the words of Lord Watson in the
Local Prohibition Case,^ —

» See extract, post, p. 432.

426 CANADIAN CONSTITUTION : SELF-GOVERNMENT.

" The decision in Russell v. Beg. must be accepted as an
authority to the extent to which it goes — ^namely, that the
lestrictive provisions of the Canada Temperance Act of 1886,
when they have been duly brought into operation in any pro-
vincial area within the Dominion, must receive effect as valid
enactments relating to the peace, order, and good govern-
ment of Canada/'

1883. — Hodge v. Reg J (frequently cited as Hodge's
Case.)

A provincial Liquor License Act (Ontario) was
attacked upon the ground, among others, that it was
a law in relation to '' the regulation of trade and
commerce '' {sec. 91, No. 2). Adhering to the view
taken in Parsons' Case^ as to the proper scope
of that class, the Board held that the local regula-/
tion of a particular trade or business within a pro-
vince did not fall within it ; and that the provincial
Act might properly be viewed as a law relating to
'' municipal institutions in the province '' {sec. 92,
No. 8) or to a matter *^ of a merely local or private
nature in the province '* (sec. 92, No. 16). This as-
signment of the Act to these particular classes
would not now be followed in its entirety; but that
is a question to be discussed later. One passage in
their Lordships^ judgment has become classic as
indicative of one most important consideration
which should be borne in mind in examining any
impugned Act. After referring to RusselVs Case,
the judgment proceeds :

" Their Lordships do not intend to vary or depart from
the reasons expressed for their judgment in that case. The
principle which that case and Parsons' Case illustrate is that
subjects uMich in one aspect and for one purpose fall within

^9 A. C. 117; 53 L. J. P. C. 1.

» 7 App. Cas. 96; 51 L. J. P. C. 11: see post, p. 683.

SCHEME OF DISTRIBUTION : VIEW OF PRIVY COUNCIL. 427

section 92 may in another aspect and for another purpose
fall within section 91 " — per Sir Barnes Peacock.

1887.— ^awA; of Toronto v. Lamhe^ (often cited as
Lamhe's Case.}

A provincial Act (Quebec) imposing taxation
upon banks carrying on business in the province,
the amount of the tax depending in part upon the
amount of the bank's paid-up capital and in part
upon the number of its branches in the province,
was upheld as legislation in relation to '^ direct
taxation within the province in order to the raising
of a revenue for provincial purposes '' {sec. 92, No.
3). It was contended on behalf of the banks that
the taxation was not direct taxation, that it was not
taxation within the province, and that banks as the
offspring of federal legislation (sec. 91, No. 15)
were not proper subjects of provincial taxation. This
last argument was fortified by reference to many
United States authorities.^^ The judgment of the
Board thus deals with this phase of the argument:

" Their Lordships have been invited to take a very wide
range on this part of the case and to apply to the construc-
tion of the Federation Act the principles laid down for the
United States hy Chief Justice Marshall. Every one would
gladly accept the guidance of that great judge in a parallel
case. But he was dealing with the Constitution of the United
States. Under that constitution, as their Lordships under-
stand, each State may make laws for itself, uncontrolled by
the federal power, and subject only to the limits placed by
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 which the action of the state legisla-
ture came into conflict with the power vested in Congress.
The appellant invokes that principle to support the conclu-
sion that the Federation Act must be so construed as to allow

»12 App. Cas. 175; 56 L. J. P. C. 87.
^^ See ante, p. 397, et seq.

428 CANADIAN constitution: self-government.

no power to the provincial legislations, under section 92,
which may by possibility, and if exercised in some extrava-
gant way, interfere with the objects of the Dominion in exer-
cising their powers under section 91. It is quite impossible
to argue from the one case to the other. Their Lordships
have to construe the express words of an Act of parliament
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 care-
fully balanced constitution under which no one of the parts
can pass laws for itself except under the control of the whole
acting through the Governor-General. And the question
which they have to answer is whether the one body or the
other has power to make a given law. If they find that on the
.due construction of the Act a legislative power falls within
section 92, it would be quite wrong of them to deny its exist-
ence because by some possibility it may be abused, or may
limit the range which otherwise would be open to the Do-
minion parliament

" It has been suggested that the provincial legislatures
possess powers of legislation either inherent in them, or dat-
ing from a time anterior to the Federation Act, and not taken
away by that Act. Their Lordships 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 rea-
soned, 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 x4.ct exhausts the whole range of legisla-
tive power, and that whatever is not thereby given to the
provincial legislatures, rests with the parliament.^' — per Lord
Hoibhouse.

1894. — Tennant v. Union Bank}

A provision in the Bank Act (Dominion) which
empowered banks to take warehouse receipts as col-

* (1894), A. C. 31; 63 L. J. P. C. 25.

SCHEME OF DISTRIBUTION : VIEW OF PRIVY COUNCIL. 429

lateral security for the repayment of moneys ad-
vanced to the holders of such receipts was upheld
as a law relating to ^^ banking '' (sec. 91, No. 15).
It was attacked as legislation in relation to '' pro-
perty and civil rights in the province '' {sec. 92, No.
13), but their Lordships were of opinion that though
it did affect such rights it interfered with them no
further than the fair requirements of a banking Act
would warrant:

" Section 91 gives the parliament of Canada power to
make laws in relation to all matters not coming within the
classes of subjects by the Act exclusively assigned to the legis-
latures of the provinces and also exclusive legislative author-
ity in relation to certain enumerated subjects. . . . Sec-
tion 92 assigns to each provincial legislature the exclusive
right to make laws in relation to the classes of subjects
therein enumerated. . . . The objection taken by the appel-
lants to the provisions of the Bank Act ^ould be unanswer-
able if it could be shown that by the Act of 1867 the parlia-
ment of Canada is absolutely debarred from trenching to any
extent upon the matters assigned to the provincial legisla-
tures by section 92. But section 91 expressly declares that
* notwithstanding anything in this Act^ the exclusive legis-
lative authority of the parliament of Canada shall extend to
all matters coming within the enumerated classes; which
plainly indicates that the legislation of that parliament so
long as it strictly relates to those matters is to be of para-
mount authority. To refuse effect to this declaration would
render nugatory some of the legislative powers specially as-
signed to the Canadian parliament. For example, among
the enumerated classes of subjects in section 91 are ' patents
of invention and discovery ' and ' copyright.^ It would be
practically impossible for the Dominion parliament to legis-
late upon either of these subjects without affecting the prop-
erty and civil rights of individuals in the provinces. . . .
The power to legislate conferred by that clause (91) may
be fully exercised, although with the effect of modifying civil
rights in the province.

430 CANADIAN constitution: self-government.

This is not the first occasion on which the legislative
limits laid down by sections 91 and 92 have been considered
by this Board. In Cushing v. Dupuy/ their Lordships had
before them the very same question of statutory construction
which has been raised in this appeal " — per Lord Watson.

In Cushing v. Dupuy, as already noticed,^ the
discussion was limited to the particular items in-
volved. In the passage just quoted the question is
avowedly treated as one of principle. How far the
field is open for provincial occupation in the ab-
sence of Dominion legislation upon the enumerated
heads of section 91 is a question dealt with in the
next extract.

lS<^^,—AUy.-Gen. (Ont.) v. Atty.-Gen. (Can,),'''
usually referred to as the Voluntary Assign-
ments Case.

A provincial Act (Ontario) respecting assign-
ments and preferences by insolvent persons con-
tained the now usual provision that an assignment
for the general benefit of creditors should take pre-
cedence over all judgments and over all executions
not completely executed by payment. This was at-
tacked as a law relating to ** bankruptcy and insol-
vency '' (sec. 91 y No, 21) ; but their Lordships held
that though the provision was one which might well
find a place in insolvency legislation properly so
called it was within the competence of a provincial
legislature, in the absence of a federal insolvency
law, as legislation in relation to '' property and
civil rights in the province '^ {sec. 92, No. 13) :

" A system of ibankruptcy legislation may frequently
require various ancillary provisions for the purpose of pre-
venting the scheme of the Act from being defeated. It may

^5 App. Gas. 409; 49 L. J. P. C. 63.

^ See ante, p. 418.

^^ (1894), A. C. 189. 63 L. J. P. C. 59.

SCHEME OF DISTRIBUTION : VIEW OF PRIVY COUNCIL. 431

he necessary for this purpose to deal with the effect of execu-
tions and other matters which would otherwise be within the
legislative competence of the provincial legislatures. Their
Lordships do not doubt that it would be open to the Domin-
ion parliament to deal with such matters as part of a bank-
ruptcy law, and the provincial legislatures would doubtless
be then precluded from interfering with this legislation, inas-
much as such interference would affect the bankruptcy law
of the Dominion parliament. But it does not follow that
such subjects as might properly be treated as ancillary to
such a law, and therefore within the powers of the Dominion
parliament, are excluded from the legislative authority of the
provincial legislature when there is no (bankruptcy or insolv-
ency legislation of the Dominion parliament in existence."
— per Lord Herschell, L.C.

lS96.—AUy.-Gen. (Ont.) v. Atty.-Gen. {Can.) *
usually referred to as the Local Prohibition
Case.

The power of a provincial legislature to pass
prohibitory liquor laws was in question. A provin-
cial Act (Ontario) purported to confer upon muni-
cipal authorities (subject to the vote of the elec-
tors) power to prohibit within the municipality the
sale by retail of intoxicating liquors, and the main
point involved was as to the validity of such pro-
vincial legislation in view of the existence of ^ Dom-
inion Act (the Canada Temperance Act, 1886) cov-
ering much the same ground, the validity of which
had been affirmed in BusseWs Case.^

This is the first general survey of the scheme of
distribution effected by sections 91 and 92 made by
the Board since Parsons' Case. A comparison of
the two judgments discloses a marked advance, par-
ticularly toward a solution of the ever-recurring

* (1896), A. C. 348; 65 L. J. P. C. 26.
•See ante, p. 423.

/
432 CANADIAN constitution: self-government.

question of concurrent powers or (to use Lord
"Watson's own phrase) interlacing powers. It
should be noted, however, that the main question to
which the Committee addressed itself was as to the
extent of the jurisdiction conferred upon the par-
liament of Canada by the opening, ^^ peace, order,
and good government '' clause of section 91, as con-
trasted with that of provincial legislatures under
No. 16 of section 92.

" It was apparently contemplated iby the f ramers of the
Imperial Act of 1867 that the due exercise of the enumer-
ated powers conferred upon the parliament of Canada by
section 91 might occasionally and incidentally involve legis-
lation upon matters which are prima facie committed ex-
clusively to the provincial legislatures by section 92. In or-
der to provide against that contingency the concluding part
of section 91 enacts that ' any matter coming within any of
the classes of subjects enumerated in this section shall not
be deemed to come within the class of matters of a local or
private nature comprised in the enumeration of the classes
of subjects by this Act assigned exclusively to the legislatures
of the provinces.^ It was observed by this Board in the Par-
sons* Case that the paragraph just quoted 'applies in its
grammatical construction only to No. 16 of section 92.' The
observation was not material to the question arising in that
case, and it does not appear to their Lordships to be strictly
accurate. It appears to them that the language of the ex-
ception in section 91 was meant to include and correctly de-
scribes all the matters enumerated in the sixteen heads of
section 92 as being, from a provincial point of view, of a local
or private nature. It also appears to their Lordships that
the exception was not m-eant to derogate from the legislative
authority given to provincial legislatures by these sixteen
sub-sections, save to the extent of enabling the parliament of
Canada to deal with matters local or private in those cases
where such legislation is necessarily incidental to the exercise
of the powers conferred upon it by the enumerative heads of
clause 91

SCHEME OF DISTRIBUTION I VIEW OF PRIVY COUNCIL. 433

" The general authority given to the Canadian parliament
by the introductory enactments of section 91 is * to make law*
for the peace, order, and good government of Canada in re-
lation to all matters not coming within the classes of subjects
by this Act assigned exclusively to the legislatures of the
provinces,' and it is declared, hut not so as to restrict the
generality of these words, that the exclusive authority of the
Canadian parliament extends to all matters coming within
the classes of subjects which are enumerated in the clause.
There may, therefore, be matters not included in the enu-
meration, upon which the parliament of Canada has power
to legislate because they concern the peace, order, and good
government of the Dominion. But to those matters which
are not specified among the enumerated subjects of legisla-
tion the exception from section 92 which is enacted by the
concluding words of section 91 has no application; and in
legislating with regard to such matters the Dominion parlia-
ment has no authority to encroach upon any class of subjects
which is exclusively assigned to provincial legislatures by
section 92. These enactments appear to their Lordships to
indicate that the exercise of legislative power by the parlia-
ment of Canada in regard to all matters not enumerated in
section 91 ought to be strictly confined to such matters as are
unquestionably of Canadian interest and importance, and
ought not to trench upon provincial legislation with respect
to any of the classes of subjects enumerated in section 92.
To attach any other construction to the general power which,
in supplement of its enumerated powers, is conferred upon
the parliament of Canada by section 91, would, in their Lord-
ships' opinion, not only be contrary to the intendment of the
Act, but would practically destroy the autonomy of the pro-
vinces. If it were once conceded that the parliament of
Canada had authority to make laws applicable to the whole-
Dominion in relation to matters which in each province are
substantially of local or private interest, upon the assumption
that these matters also concern the peace, order, and good
government of the Dominion, there is hardly a subject enu-
merated in section 92 upon which it might not legislate to
the exclusion of the provincial legislatures.

" In construing the introductory enactments of section
91 with respect to matters other than those enumerated,.

CAN. CON. — 28

434 CANADIAN constitution: self-government.

which concern the peace, order, and good government of
Canada, it must be kept in view that section 94, which em-
powers the parliament of Canada to make provision for the
uniformity of the laws relative to property and civil rights
in Ontario, Nova Scotia, and New Brunswick, does not ex-
tend to the province of Quebec ; and also that the Dominion
legislation thereby authorized is expressly declared to be of
no effect unless and until it has been adopted and enacted by
the provincial legislatures. These enactments would be idle
and abortive if it were held that the parliament of Canada
derives jurisdiction from the introductory provisions of sec-
tion 91 to deal with any matter which is in substance local or
provincial and does not truly affect the interest of thei Do-
minion as a whole. Their Lordships do not doubt that
some matters, in their origin local and provincial, might
attain such dimensions as to affect the body politic of the
Dominion, and to jusftify the Canadian parliament in passing
laws for their regulation or abolition in the interests of the
Dominion. But great caution must be observed in distin-
guishing between that which is local and provincial and there-
fore within the jurisdiction of the provincial legislatures,
and that which has ceased to be merely local or provincial
and has become matter of national concern in such a sense as
to bring it within the jurisdiction of the parliament of Can-
ada.^^ ....

" It is not necessary, for the purposes of the present ap-
peal, to determine whether provincial legislation for the sup-
pression of the liquor traffic, confined to matters which are
provincial or local within the meaning of Nos. 13 and 16, is
authorized by the one or the other of these heads.® It cannot,
in their Lordships^ opinion, be logically held to fall within
both of them. In section 92, No. 16 appears to them to have
the same office which the general enactment with respect to
matters concerning the peace, order, and good government
of Canada, so far as supplementary of the enumerated sub-
jects, fulfils in section 91. It assigns to the provincial legis-
lature all matters in a provincial sense local or private which
have been omitted from the preceding enumerations; and

•In the Manitoba Liqmr Act Case (1902), A. C. 73; 71 L. J.
P. C. 28, such legislation is put squarely upon No. 16 of sec. 92.

SCHEME OF DISTRIBUTION" : VIEW OF PRIVY COUNCIL. 435

although its terms are wide enough to cover, they were ob-
viously not meant to include, provincial legislation in rela-
tion to the classes of subjects already enumerated.'^ ....
" It has been frequently recognized by this Board, and it
may now be regarded as settled law that, according to the
scheme of the British North America Act, the enactments of
the parliament of Canada in so far as they are within its
competency must override provincial legislation. But the
Dominion parliament has no authority conferred upon it by
the Act to repeal directly any provincial statute ^ whether it
does or does not come within the limits of jurisdiction pre-
scribed by section 92. The repeal of a provincial Act by the
parliament of Canada can only be effected by repugnancy
between its provisions and the enactments of the Dominion;
and if the existence of such repugnancy should become matter
of dispute, the controversy cannot be settled by the action
either of the Dominion or of the provincial legislatures,
but must be submitted to the judicial tribunals of the coun-
try.^' ....

" The question must next be considered whether the pro-
vincial enactments, to any, and, if so, to what extent, come
into collision with the provisions of the Canadian Act of
1886. In so far as they do, provincial must yield to Domin-
ion legislation and must remain in abeyance unless and until
the Act of 1886 is repealed by the parliament which passed
it/'— Per Lord Watson.

lS98.—Atty.-Gen. (Can.) v. Atty.-Gen. (Ont, Que.,
and N.S.),^ usually called the Fisheries Case.

How far a provincial legislature may pass laws
relating to fisheries, fishing rights, etc., was one
of the questions before the Board. It was held that
laws in relation to all matters falling within the
class '^ sea-coast and inland fisheries '^ (sec. 91, No.
12) could be passed only by the Dominion parlia-
ment. Provincial legislation thereon is ultra vires :

^ Post-confederation is of course meant. See ante, p. 405.
* (1898), A. C. 700; 67 L. J. P. C. 90.

436 CANADIAN constitution: self-government.

"The earlier part of section 91, read in connection
with the words beginning * and for greater certainty/ ap-
pears to amount to a legislative declaration that any legis-
lation falling strictly within any of the classes specially enu-
merated in section 91 is not within the legislative competence
of the provincial legislatures under section 92. In any view
the enactment is express that laws in relation to matters fall-
ing within any of the classes enumerated in section 91 are
within the ^ exclusive ' legislative authority of the Dominion
parliament. Whenever, therefore, a matter is within one of
these specified classes, legislation in relation to it by a pro-
vincial legislature is, in their Lordships' opinion, incompe-
tent. It has been suggested, and this view has been adopted
by some of the judges of the Supreme Court, that although
Dominion legislation dealing with the subject would override
provincial legislation, the latter is nevertheless valid unless
and until the Dominion parliament so legislates. Their
Lordships think that such a view does not give their due effect
to the terms of section 91, and in particular to the word ' ex-
clusively.' It would authorize, for example, the enactment
of a bankruptcy law or a copyright law in any of the pro-
vinces unless and until the Dominion parliament passed
enactments dealing with those subjects. Their Lordships do
not think this is consistent with the language and manife:it
intention of the British North America Act." — per Lord
Herschell.

This view is reaffirmed in the next extract.

1899. — Union Colliery Co. v. Bryden,^ (usually re-
ferred to as Bryden's Case).

A provincial Act prohibited Chinamen from
working in coal mines below ground. It was held
to be in its pith and substance a law in relation to
a matter coming within the class *^ naturalization
and aliens '^ (sec. 91, No. 25). It was argued that
the only Dominion legislation on that subject, the
Naturalization Act, left the field largely open and

» (1899), A. C. 580; 68 L. J. P. C. 118.

SCHEME OF DISTRIBUTION : VIEW OF PRIVY COUNCIL. 437

that provincial legislation might lawfully occupy
the portion not covered by the Dominion Act; in
which view the provincial legislation should be up-
held as a law relating to ^^ local works and under-
takings ^^ (sec. 92, No. 10). The argument is thus
answered :

" The abstinence of the Dominion parliament from legis-
lating to the full limits of its powers could not have the
effect of transferring to any provincial legislature the legis-
lative power which had been assigned to the Dominion by
section 91 of the x\ct of 1867 ^' — per Lord Watson.

It should be added here that though the view
taken in this Bryden Case as to the scope of the
class *^ naturalization and aliens '' cannot now, it
is conceived, be supported,^ this does not affect the
proposition laid down in the above passage.

im^,— Grand Trunk By. v. Atty.-Gen. (Can.),^'»
sometimes cited as the Contracting -out Case.

A provision in the Eailway Act of Canada de-
signed to prevent railway employees from entering
into agreements with their employers, federal rail-
ways, relieving the latter from liability in case of
accidents to the former, was upheld as a law relat-
ing to federal railways (sec. 91, No. 29; sec. 92, No.
10a), even though it might modify the general law
of the province in relation to '^ civil rights '* (sec.
92, No. 13) :

" The point therefore comes to be within a very narrow
compass. The respondent maintains, and the Supreme Court
has upheld his contention, that this is truly railway legisla-
tion. The appellants maintain that, under th^ guise of rail-
way legislation, it is truly legislation as to civil rights, and,
as such, under section 92, sub-section 13 of the British North
America Act, appropriate to the province.

*See post, p. 672 et seq.

" (1907), A. C. 65; 76 L. J. P. C. 23.

438 CANADIAN constitution: self-government.

The construction of the provisions of the British North
America Act has been frequently before their Lordships.
It does not seem necessary to recapitulate the decision. But
a comparison of two cases decided in the year 1894 — namely,
Atty-Gm. of Ontario v. Atty-Gen. of Canada (1894) ^ and
Tennant v. Union Bank of Canada (1893),^ — seems to estab-
lish these two propositions : First, that there can be a domain
in which provincial and Dominion legislation may overlap,
in which case neither legislation will be ultra vires, if the
field is clear, and, secondly, that if the field is not clear, and
in such a domain the two legislations meed:, then the Do-
minion legislation must prevail.

Accordingly, the true question in the present case does not
seem to turn upon the question whether this law deals with a
civil right — which may be conceded — ^but whether this law is
truly ancillary to railway legislation." — per Lord Dunedin.

In the next case from which an extract is taken
the above passage is quoted with approval; and it
would hardly be necessary to insert the following
extract were it not that it pointedly distinguishes
between the * substantive ' anji * ancillary ' pro-
visions of a statute.

1907. — Toronto v. Canadian Pacific By}

By the Dominion Eailway Act power was given
to the Eailway Committee of the Privy Council of
Canada to direct the carrying out of protective
measures for the safeguarding of the public at
places where a federal railway might cross public
highways and also to apportion the cost of such pro-
tective measures among those benefited by them.
This power of apportionment was attacked as not
being truly railway legislation and as unduly inter-
fering with provincial powers in relation to */ muni-
cipal institutions in the province ''. {sec. 92, No. 8)

^Yoluntary Assignments Case: see extract, ante, p. 430.

' See extract, ante, p. 429.

» (1908), A. C. 54; 77 L. J. P. C. 29.

SCHEME OF DISTRIBUTION : VIEW OP PEIVY COUNCIL. 439

and to ^ * property and civil rights in the province ' '
{sec. 92, No. 13). It was, however, upheld as a
reasonable ancillary provision to be inserted in a
railway Act:

^' In the present case it seems quite clear to their Lord-
ships that if, to use the language above quoted, 'the field
were clear,' the sections impugned do no more than provide
reasonable means for safeguarding in the common interest
the public and the railway which is committed to the exclu-
sive jurisdiction of the legislature which' enacted them> and
were therefore intra vires. If the precautions ordered are
reasonably necessary, it is obvious that they must be paid
for, and in the view of their Lordships there is nothing, ^^ra
vires in the ancillary power conferred by the sections on the
Committee to make an equitable adjustment of the expenses
among the persons interested. This legislation is clearly
passed from a point of view more natural in a young and
growing community interested in developing the resources of
a vast territory as yet not fully settled, than it could possibly
be in the narrow and thickly populated area of such a coun-
try as England. To such a community it might well seem
reasonable that those who derived special advantages from the
proximity of a railway might bear a special share of the ex-
penses of safeguarding it. Both the substantive and the an-
cillary provisions are alike reasonable and intra vires of the
Dominion Legislature, and on the principles above cited must
prevail even if there is legislation intra vires of the pro-
vincial legis-lature dealing with the same sulbject-matter and
in some sense inconsistent '' * — per. Lord Collins.

1912. — Montreal v. Montreal Street By.^ (the
Through-Traffic Case),

The Board of Eailway Commissioners for
Canada in an effort to prevent what they considereel
an unjust discrimination in the rates charged to
passengers carried over certain tram lines operat-
ing in Montreal and its suburbs, directed one of the

* Compare witli this case B. G. Elec. Ry. v. V. V. d E. Ry.
(1914), A. C. 1067; 83 L. J. P. C. 374.

• (1912), A. C. 333; 81 L. J. P. C..145.

440 CANADIAN constitution: self-government.

roads concerned, a federal railway (within sec. 91,
No. 29; sec. 92 J 10 c), to make all the necessary
arrangements to remove the grievance complained
of; and it also ordered the other road concerned, a
provincial railway (within sec. 92, No. 10), to enter
into any agreement or agreements that might be
necessary to enable the federal railway to carry out
the Board's orders. The Dominion Eailway Act
purported to give to the Board power to make such
orders, and the question was as to the validity of
the Dominion Act in this particular. The Act was
held to be ultra vires so far as it attempted to con-
trol the rates to be charged by a provincial railway.
The judgment is important, for our present pur-
pose, as containing a summing up of the scheme of
distribution effected by sections 91 and 92 as estab-
lished by previous decisions of the Privy Council
and as affording therefore in some degree an
authoritative commentary on those decisions:

" It has, no doubt, been many times decided by this Board
that the two sections 91 and 92 are not mutually exclusive,
that their provisions may overlap, and that where the legis-
lation of the Dominion Parliament comes into conflict with
that of a provincial Legislature over a field of jurisdiction
common to both the former must prevail ; but, on the other
hand, it was laid down in Att.-Gen. for Ontario v. Att.-Gen.
for Canada^^ — first, that the exception contained in section 91
near its end, was not meant to derogate from the legislative
authority given to provincial Legislatures by section 92, sub-
section 16, save to the extent ot-ea^bling the Parliament of r. , iIa^
Canada to deal with matters, local or private, in those cases
where such legislation is necessarily incidental to the exer-
cise of the power conferred upon that Parliament under the
heads enumerated in section 91 ; secondly, that to those mat-
ters which are not specified amongst the ^numerated subjects A- ^ fl
of legislation in section 91 the exception at its end has no
application, and that in legislating with respect to matters '^'^^^^"^^^

^^ The Local ProMMtion Case: see extract, ante, p. 432.

SCHEME OF distribution: VIEW OF PRIVY COUNCIL. 441

not so enumerated the Dominion Parliament has no auth-
ority to encroach upon any class of subjects which is exclu-
sively assigned to the provincial legislature hj section 92 ;
thirdly, that these enactments — sections 91 and 92 — indicate
that the exercise of legislative power by the Parliament of
Canada in regard to all matters not enumerated in section
91 ought to be strictly confined to such matters as are un-
questionably of Canadian interest and importance, and ought
not to trench upon provincial legislation with respect to any
classes of subject enumerated in section 92 ; fourthly, that to
attach any other construction to the general powers which, in
supplement of its enumerated powers, are conferred" upon
the Parliament of Canada by section 91 would not only be
contrary to the intendment of the Act, but would practic-
ally destroy the autonomy of the provinces; and lastly, that
if the Parliament of Canada had authority to make la\vs ap-
plicable to the whole Dominion in relation to matters which
in each province are substantially of local or private interest,
upon the assumption that these matters also concern the
peace, order, and good government of the Dominion, there is
hardly a subject upon which it might not legislate to the
exclusion of provincial legislation. The same considerations
appear to their Lordships to apply to two of the matters
enumerated in section 91 — namely, the regulation of trade
and commerce. Taken in their widest sense, these words
would authorise legislation by the Parliament of Canada in
respect of several of the matters specifically enumerated in
section 92, and would seriously encroach upon the local
autonomy of the province " — per Lord Atkinson.

1912.— Atty. -Gen. (Ont. etc.) v. Atty.-Gen. (Can.),'
to be cited as the References Case.

The judgment of the Privy Council in this case
affirms the validity of those provisions of the
Supreme Court Act (Canada) which authorize the
Governor-General in Council to refer important
questions — as enumerated they are chiefly of a con-
stitutional character — to the Supreme Court for

• (1912), A. C. 571; 81 L. J. P. C. 210.

442 CANADIAN constitution: self-government.

hearing and consideration. The reasons given in
support of the judgment touch many phases of our
constitutional law as will be manifest throughout
this book :

''In 1867, the desire of Canada for a definite Constitu-
tion embracing the entire Dominion was embodied in the
British North America Act. ISTow there can be doubt that
under this organic instrument the powers distributed be-
tween the Dominion on the one hand and the provinces on
the other hand cover the whole area of self-government
within the whole area of Canada. It would be subversive
of the entire scheme and policy of the Act to assume that
any point of internal self-government was withheld from
Canada. Numerous points have arisen, and may hereafter
arise, upon those provisions of the Act which draw the divid-
ing line between what belongs to the Dominion or to the
province respectively. An exhaustive enumeration being
unattainable (so infinite are the subjects of possible legisla-
tion), general terms are necessarily used in describing what
either is to have; and with the use of general terms comes
the risk of some confusion, whenever a case arises in which
it can be said that the power claimed falls within the descrij>-
tion of what the Dominion is to have, and also within the des-
cription of what the province is to have. Such apparent over-
lapping is unavoidable, and the duty of a Court of law is to
decide in each particular case on which side of the line it
falls in view of the whole statute.

In the present case, however, quite a different contention
is advanced on behalf of the provinces. It is argued, indeed,
that the Dominion Act authorising questions to be asked of
the Supreme Court is an invasion of provincial rights, but
not because the power of asking such questions belongs ex-
clusively to the provinces. The real ground is far wider.
It is no less than this — that no Legislature in Canada has
the right to pass an Act for asking such questions at all.
This is the feature of the present appeal which makes it so
grave and far-reaching. It would be one thing to say that
under the Canadian Constitution what has been done could
be done only by a provincial Legislature within its own

SCHEME OF DISTRIBUTION" : VIEW OF PRIVY COUNCIL. 443

province. It is quite a different thing to say that it can-
not be done at all, being, as it is, a matter affecting the
internal affairs of Canada, and, on the face of it, regulating
the functions of a Court of law, which are part of the ordin-
ary machinery of Government in all civilised countries.'^ . .

"A> Court of law has nothing to do with a Canadian Act
of Parliament, lawfully passed, except to give it effect ac-
cording to its tenor. No one who has experience of judicial
duties can doubt that, if an Act of this kind were abused,
manifold evils might follow, including undeserved suspicion
of the course of justice and much embarrassment and
anxiety to the Judges themselves. Such considerations are
proper, no doubt, to be weighed by those who make and by
those who administer the laws of Canada, nor is any Court
of law entitled to suppose that they have not been or will
not be duly so weighed. So far as it is a matter of wisdom
or policy, it is for the determination of the Parliament. It
is true that from time to time the Courts of this and other
countries, whether under the British flag or not, have to
consider and set aside, as void, transactions upon the ground
that they are against public policy. But no such doctrine-
can apply to an Act of Parliament. It is applicable only
to the transactions of individuals. It cannot be too strongly
put that with the wisdom or expediency or policy of an Act,
lawfully passed, no Court has a word to say. All, therefore,
that their Lordships can consider in the argument under
review is, whether it takes them a step towards proving that
this Act is outside the authority of the Canadian Parliament,
which is purely a question of the constitutional law of
Canada.

"In the interpretation of a completely self-governing
Constitution founded upon a written organic instrument,
Buch as the British North America Act, if the text is explicit
the text is conclusive, alike in what it directs and what it
forbids. When the text is ambiguous — ^as, for example, when
the words establishing two mutually exclusive jurisdictions
are wide enough to bring a particular power within either —
recourse must be had to the context and scheme of the Act.
Again, if the text says nothing expressly, then it is not to be
presumed that the Constitution withholds the power alto-
gether. On the contrary, it is to be taken for granted that

444 CANADIAN CONSTITUTION : SELF-GOVERNMENT.

the power is bestowed in some quarter -unless it be extraneous
to the statute itself — as, for example, a power to make laws
for some part of His Majesty's dominions outside of Canada
— or otherwise is clearly repugnant to its sense. For what-
ever belongs to self-government in Canada belongs either to
the Dominion or to the provinces, within the limits of the
British North America Act. It certainly would not be suf-
ficient to say that the exercise of a power might be oppressive,
because that result might ensue from the abuse of a great
number of powers indispensable to self-government, and ob-
viously bestowed by the British North America Act. Indeed
it might ensue from the breach of almost any power." — yer
.Earl Loreburn, L.C.

1914. — John Deere Plow Co. v. Wharton.^

The decision of the Board in this case was that a
provincial legislature cannot require a trading com-
pany, incorporated under the Federal Companies
Act for the purpose of carrying on its business
throughout Canada, to take out a certificate as an
extra-provincial company as a condition of its right
to carry on its business in such province. As the
latest expression of the Privy Council's view as to
the way in which the class-enumerations of the
British North America Act should be approached,
the method of enquiry, and the danger of a too free
indulgence in a priori generalization, the passages
extracted deserve careful study:

The distribution of powers under the British North
America Act, the interpretation of which is raised by this
appeal, has been often discussed before the Judicial Com-
mittee and the tribunals of Canada and certain principles
are now well settled. The general power conferred on the
Dominion by section 91 td make laws for the peace, order,
and good government of Canada, extends in terms only to
matters not coming within the cla^esl)! subjects assigned
by the Act exclusively to the legislatures of the provinces.

* (1915), A. C. 330; 84 L. J. P. C. 64.

SCHEME OP DISTRIBUTION : VIEW OF PRIVY COUNCIL. 445

But if the subject matter falls within any of the heads of
section 92, it becomes necessary to see whether it also falls
within any of the enumerated heads of section 91 ; for if so,
by the concluding words of that section it is excluded from
the powers conferred by section 92.

Before proceeding to consider the question whether the
provisions already referred to of the British Columbia Com-
panies Act, imposing restrictions on the operations of a
Dominion company which has failed to obtain a provincial
license, are valid, it is necessary to realize the relation to
each other of sections 91 and 92 and the character of the
expressions used in them. The language of these sections
and of the various heads which they contain obviously can-
not be construed as having been intended to embody the
exact disjunctions of a perfect logical scheme. The drafts-
man had to work on the terms of a political agreement,
terms which were mainly to be sought for in the resolutions
passed at Quebec in October, 1864. To these resolutions
and the sections founded on them, the remark applies which
was made by this Board about the Australian Commonwealth
Act in a recent case,^ that if there is at points obscurity in
language, this may be taken to be due, not to uncertainty
about general principle, but to that diflBculty in obtaining
ready agreement about phrases which attends the drafting
of legislative measures by large assemblages. It may be
added that the form in which provisions in terms overlap-
ping each other have been placed side by side, shews that
those who passed the Confederation Act intended to leave
the working out and interpretation of these provisions to
practice and to judicial decision.

The structure of sections 91 and 92, and the degree to
which the connotation of the expressions used overlaps render
it, in their Lordships' opinion, unwise on this or any other
occasion, to attempt exhaustive definitions of the meaning
and scope of these expressions. Such definitions, in the case
of language used under the conditions in which a constitu-
tion such as that under consideration was framed, must
almost certainly miscarry. It is in many cases only by

i^-J

^A.-G. for the Commonwealth v. Colonial Sugar Refining Co,
(1914), A. C. 237, at 254.

446 CANADIAN constitution: self-government.

confining decisions to concrete questions which have actually
arisen in circumstances the whole of which are before the
tribunal, that injustice to future suitors can be avoided.
Their Lordships adhere to what was said by Sir Montague
Smith in delivering the judgment of the Judicial Committee
in Citizens Insurance Co. v. Parsons,^ to the eifect that in
discharging the difficult duty of arriving at a reasonable and
practical construction of the language of the sections, so as
to reconcile the respective powers they contain and give ef-
fect to them all, it is the wise course to decide each case
which arises without entering more largely upon an inter-
pretation of the statute than is necessary for the decision of
the particular question in hand. The wisdom of adhering
to this rule appears to their Lordships to be of especial im-
portance when putting a construction on the scope of the
words ^^ civil rights '' in particular cases. An abstract logi-
cal definition of their scope is not only, having regard to the
context of the 91st and 92nd sections of the Act, impracti-
cable, but is certain, if attempted, to cause embarrassment
and possible injustice in future cases. Jt must be borne in
mind in construing the two sections that matters which in
a special aspect and for a particular purpose may fall within
one of them, may in a different aspect and for a different
purpose fall within the other. In such cases the nature and
scope of the legislative attempt of the Dominion or the pro-
vince, as the case may be, have to be examined with refer-
ence to the actual facts if it is to be possible to determine
under which set of powers it falls in substance and in reality.
This may not be difficult to determine in actual and con-
crete cases, but it may well be impossible to give abstract
answers to general questions as to the meaning of the words,
or to lay down any interpretation based on their literal scope
apart from their context

For the reasons already indicated, it is impracticable to
attempt with safety definitions marking out logical disjunc-
tions between the various powers conferred by the 91st and
92nd sections and between their various sub-heads inter se.
Lines of demarcation have to be drawn in construing the
application of the sections to actual concrete cases, as to each

» A. C. 96, at p. 109.

SCHEME OF DISTRIBUTION : VIEW OF PRIVY COUNCIL. 447

of which individually the Courts have to determine on which
side of a particular line the facts place them. But while in
some cases it has proved, and may hereafter prove, possible
to go further and to lay down a principle of general appli-
cation, it results from what has been said about the lan-
guage of the Confederation Act, that this cannot be satis-
factorily accomplished in the case of general questions such
as those referred to — per Lord Moulton.

From the principles laid down in these various
extracts, illustrated by other decisions as well, it is
now in order to attempt to deduce some leading
propositions as to the scheme of division and as to
the canons of construction to be applied for the re-
conciliation of the class enumerations.

CHAPTER XXII.

The Caedinal Pkinciple of Allotment.

It may now be affirmed with some degree of as-
surance that the British North America Act em-
bodies a system of government based on principles
truly federal.^ The aim was to reconcile a Dom-
inion-wide unity of action and control in all mat-
ters of common Canadian concern with local and
independent control by each province of all matters
of merely local or private concern in a provincial
sense in each province. To this end the Act as now
authoritatively construed assigns to the parliament '
of Canada all such matters only as are of common
Canadian concern, while the provincial jurisdiction
embraces in each province all such matters as are
of merely provincial concern. In this view and if
there were in the Act no further attempt to limit
more definitely the respective fields of federal and
provincial authority, either jurisdiction might be
taken as the starting point for investigation; but
in each of the two leading sections, 91 and 92, there
is an enumeration of classes and a method of cross-
reference which renders it advisable to investigate,
as it were, from both ends.

Federal Jurisdiction is only over matters of
common concern. — Section 91 provides as its main
substantive enactment that the parliament of Can-
ada may make laws for the peace, order and good
government of Canada in relation to all matters
not coming within the classes of subjects assigned
by the Act to the exclusive jurisdiction of the pro-
vincial legislatures. This early cross-reference

* See ante, p. 370, et seq.

THE CAKDINAL PRINCIPLE OF ALLOTMENT. 449

requires that attention should at once be paid to sec-
tion 92 which defines the limits of exclusive provin-
cial jurisdiction. The underlying principle of the
section is to be found in No. 16 of its class enumer-
ations: ^' Generally, all matters of a merely local
or private nature in the province.'' In the Local
Prohibition Case ^ their Lordships of the Privy
Council expressly stated that all the matters enum-
erated in the 16 heads of section 92 are from a pro-
vincial point of view of a local or private nature.
Of No. 16 they say:

" In section 92, No. 16, appears to them to have the same
office which the general enactment with respect to matters
concerning the peace, order, and good government of Canada,
so far as supplementary of the enumerated snfcjects, fulfils in
Beotion 91. It assigns to the provincial legislature all
matters in a provincial sense, local or private, which have
been omitted from the preceding enumeration ; and, although
its terms are wide enough to cover, they were obviously not
meant to include provincial legislation in relation to the
classes of subjects already enumerated.'^

The point their Lordships were making was
that it would not be logical to treat a particular
provincial enactment as falling both within No. 16
and also within one of the other classes of section
92; just as it would not in one sense be logical to
treat a particular federal enactment as falling both
within the opening clause of section 91 and also-
within one of the enumerated classes of that sec-
tion.^* But there is a marked difference in the method
of enactment adopted in the two sections, 91 and
92, respectively. Section 91 introduces certain class
enumerations only for greater certainty, but not sa

= (1896), A. C. 348; 65 L. J. P. C. 26. See extract, ante p. 432.

'* See judgment of Lord Moulton in the John Deere Plow Co.

Case (1915), A. C. 330; 84 L. J. P. C. 64. Extract, ante, p. 444.

CAN. CON. — 29

450 CANADIAN constitution: self-oovebnment.

as to restrict the generality of the substantive en-
actment of the opening clause; on the other hand,
the enactment of section 92 is entirely by class
enumerations, ending with the comprehensive resi-
duary No. 16.

Bearing in mind then that provincial jurisdic-
tion has been authoritatively held to cover all mat-
ters in a provincial sense local or private, one must
realize that the opening clause of section 91, though
in form residuary, is dealing only with matters of
common concern to the whole Union. And in the
same Local Prohibition Cuse it was so held.^ Col-
lecting the various phrases used in that case to de-
scribe the scope of the opening clause of section 91,
the above quoted passage dealing with No. 16 of
section 92, applied mutatis mutandis to section 91,
would read thus: ** The introductory clause of sec-
tion 91 assigns to the Dominion parliament all mat-
ters in a Dominion sense of national concern, mat-
t<6rs' unquestionably of Canadian interest and im-
portance affecting the body politic of the Dom-
inion, not covered by the enumeration which fol-
lo^^s.^' The words were obviously intended to cover
the enumerated classes because those classes had
been recognized by the agreement of the federating
provinces as of common Canadian concern; but, to
avoid doubt, the exclusive legislative authority of
the parliament of Canada is *' for greater cer-
tainty '' declared — not enacted — to extend to those
classes. All matters, therefore, within the legisla-
tive authority of the federal parliament, whether
within the class enumerations or unenumerated, are
ear-marked as of quasi-national concern, as one
would expect in a federal union; and, it is not ar-
guing in a circle to say that this principle of allot-
ment is to be borne in mind in interpreting the

'See extract, ante, p. 432.

THE CAKDINAL PRINCIPLE OF ALLOTMENT. 451

language of the class enumerations of section 91,
particularly where there is an apparent incon-
sistency as between the class enumerations of sec-
tions 91 and 92 respectively.

Following the class enumerations of section 91
this clause follows:

And any matter coming within any of the classes of sub-
jects enumerated in this section shall not be deemed to come
within the class of matters of a local or private nature com-
prised in the enumeration of the classes of subjects by this
Act assigned exclusively to the legislatures of the provinces.

In Parsons' Case^ it was intimated that in its
true grammatical construction this clause referred
only to No. 16 of section 92 ; but in the Local Fro-
hihition Case^ this view was abandoned and it is
now settled that it refers to and correctly describes
all the classes enumerated in section 92 as being
from a provincial point of view of a local or private
nature. It is to be read therefore as a limiting pro-
viso to section 92. In other words,

Provincial Jurisdiction extends to all matters in
a provincial sense local or private within the pro-
vince; subject, however, to- this proviso that any
matter really falling within any of the class enum-
erations of section 91 is to he deemed' of common
Canadian concern and not in any sense a matter
local or private within any province.

This large principle of allotment, on the one side
matters of quasi-national concern and on the other
side matters of local concern in eacl\ province,
is to be borne in mind in interpreting the language
of the class enumerations of sections 91 and 92 re-
spectively. The principle has not been propounded

*7 App. Cas. 96; 51 L. J. P. C. 11. See extract, ante, p. 419.
» (1896), A. C. 348; 65 L. J. P. C. 26. See extract, ante, p. 432.

452 CANADIAN constitution: self-government.

as the necessary conclusion from the language
employed in the respective class enumerations
taken alone. It stands out rather as the basic prin-
ciple of federalism and, as a matter of authoritative
interpretation, is deduced by the Privy Council in
the Local Prohibition Case from the language of the
opening and main substantive clause of section 91
on the one hand as compared and contrasted with
the language of the comprehensive residuary clause
No. 16, of section 92 on the other. It is not there-
fore, as already intimated, arguing in a circle to say
that the language of the class enumerations of both
section 91 and section 92 is to be interpreted in the
light of this large principle of allotment which is
now recognized as underlying the distribution of
legislative power as between the Dominion and the
provinces respectively effected by the British North
America Act.

The residuum, so called. — This marked dividing
line clearly recognized, matters of common Can-
adian concern on one side and matters of provin-
cial concern in each province on the other, it would
appear to be a misnomer to say of either jurisdic-
tion that it carries with' it the residuum of legisla-
tive power in Canada, except in the sense in which
it might be said that one particular half of a
divided orange represents a residuum. There is in
fact a residuary or supplementary clause in each of
the two sections 91 and 92; but in each case it car-
ries with it the residuum of federal or provincial
subjects, as the case may be, not covered by the re-
spective class-enumerations. For example, federal
jurisdiction is over matters of quasi-national con-
cern. Certain classes of subjects had been agreed
upon as falling within that category and these, for
greater certainty, are set out in the class-enumera-
tions of section 91. All other matters of quasi-

THE CAEDINAL PRINCIPLE OF ALLOTMENT. 453

national concern are covered by the opening clause
of section 91. In other words, that clause covers
only a residuum of matters of quasi-national con-
cern. And so as to section 92: certain classes of
subjects had been agreed on as of local provincial
concern and these are specially enumerated in the
fifteen classes of the section while the large resi-
duum of matters of local provincial concern is cov-
ered by No. 16: '^ Generally, all matters of a merely
local or private nature in the province '': as that
item has been authoritatively interpreted. As will
appear later, the provincial residuum covers, in the
number of its topics at least if not in their import-
ance, a much larger legislative field than that cov-
ered by the opening clause of section 91. However,
the important point here is that the use of the word
residuum as indicating any real principle of dis-
tribution as between federal and provincial juris-
diction is entirely out of place under the British
North America Act as now interpreted. Neverthe-
less,

The Distribution is Exhaustive. — The whole
field of self-government in Canada is covered in the
distribution of legislative power effected by the
British North America Act. Whatever belongs to
self-government in Canada belongs either to the
Dominion or to the provinces within the limits of
the Act.^ Whatever is not thereby given to the pro-
vincial legislatures rests with the parliament of
Canada.^

•Re References (1912), A. C. 571; 81 L. J. P. C. 210. See
extract, ante, p. 442.

'' Lam'be^s Case, 12 App. Cas. 575; 56 L. J. P. C. 87; see extract
ante, p. 427. Previously indicated in Dow v. Black (extract ante,
p. 415); Valin v. Langlois (extract ante, p. 416); and Russell v.
Reg. (extract ante, p. 424). See also Brophy's Case (1895), A. C.
202; 64 L. J. P. C. 70; and Union Colliery Co. v. Bryden (1899),
A. C. 580; 68 L. J. P. C. 118.

454 CANADIAN constitution: self-government.

What of reservation is wrapped up in the quali-
fying phrase ^^ within the limits of the Act '' has
been the subject of enquiry in previous chapters.^
There are, undoubtedly, matters upon which neither
the federal parliament nor any provincial assembly
can legislate ; matters touching the fundamentals of
the British Constitution, particularly in its Imperial
aspect, and matters deemed to be of concern to the
Empire at large and as such covered by Imperial
enactments. But these, while not to be lost sight
of ^ are not here of immediate concern. What is
emphasized is that of the entire field of self-govern-
ment constitutionally allotted to Canada the British
North America Act works a division, assigning to
the federal parliament all such matters (specifically
enumerated or not) as are of general Canadian in-
terest and importance while all matters of local pro-
vincial concern are placed in the hands of the
provincial assemblies.

As already intimated, there are certain sections
of the British North America Act which confer
upon Canadian legislatures, federal and provincial,
powers of a constituent character.^® These are not
part of the scheme of distribution as between the
Dominion and the provinces now under considera-
tion. They have regard to the constitutional
machinery and not to the objects upon which that
machinery may operate. And as to them in one
particular at least it has been held that the British
North America Act is not necessarily exhaustive.
The constitution of the legislative and executive
authority in the pre-Confederation provinces is ex-
pressly continued by the Act, and the provisions of
the Colonial Laws Validity Act, 1865, as to the

» Part I., Chapters I. to XIII.

*Per Idington, J., In re Insurance Act, 1910, 48 S. C. R. at
p. 290 ; ver Anglin, J., in Re References, 43 S. C. R. at p. 593.
"See Chapter V., ante, p. 40; also p. 311.

THE CAKDINAL PRINCIPLE OF ALLOTMENT. 455

amendment by colonial legislatures of their own
constitutions, have been held by the Privy Council
to be still operative in relation to the legislatures
of those provinces.^ But the point would appear to
be of little practical importance as the Board was
of opinion that the impugned Act of the Nova
Scotia legislature was well warranted by the British
North America Act itself, section 92, No. 1, con-
ferring upon all the Canadian provinces, post-con-
federation ^ as well as pre-conf ederation, power to
amend the provincial constitutions. This question,
however, is mentioned here merely to emphasize
the fact that the scheme of distribution as between
the Dominion and the provinces now under exam-
ination has reference solely to the objective range
of legislative power; and as to that the distribu-
tion is exhaustive, as indeed the opening clause of
section 91 clearly intimates.

^Fielding v. Thomas (1896), A. C. 600; 65 L. J. P. C. 103.
* Including Ontario and Quebec as in a sense post-confederation
provinces.

CHAPTER XXIII.
Class-enumerations.

Although the large principle of allotment which
underlies the distribution of legislative power un-
der the British North America Act is to assign mat-
ters of common Canadian concern to the parliament
of Canada and matters of local concern in a pro-
vincial sense in each province to the provincial leg-
islatures, the fact remains that the distribution is
very largely effected by class-enumerations. Apart
from these or even with their assistance it is often
difficult to determine whether a particular subject
not covered by any class-enumeration in either sec-
tion 91 or section 92 is a matter of common Can-
adian concern and as such falls within the opening
clause of section 91, the federal residuum, or, on
the other hand, is in each province a matter of local
concern and as such falls within No. 16 of section
92, the provincial residuum. But the chief difficulty
has been to reconcile the respective class-enumer-
ations. The Act in terms declares the two juris-
dictions, federal/ and provincial, to be mutually ex-
clusive and it was not intended that there should
be any real conflict between them.^ But a perusal
of the respective class-enumerations discloses that
if in each case the full natural meaning is to be
given to the words employed the classes must in-
evitably overlap; and in one case indeed, the Privy
Council has said that the two sections 91 and 92 are
not mutually exclusive, that their provisions may

^Parsons' Case, 7 App. Cas. 96; 51 L. J. P. C. 11. See extract
ante, p. 419.

CLASS-ENUMERATIONS. 457

overlap.^ The means adopted in the Act to prevent
a real conflict and the rules of interpretation which
have been applied to reconcile apparent inconsist-
encies must be left for discussion later. Here the
class-enumerations may well be studied with a view
to seeing how far they do apparently overlap or
interlace.

A complete enumeration of the subjects upon
which legislation is possible is practically unattain-
able, so infinite in number are they.^ Upon a view
taken of possible legislative products — to use Mr.
Justice Idington's expression* — the British North
America Act divides them into classes described in
more or less large and comprehensive phrase, as-
signing some to federal, some to provincial jurisdic-
tion. The question here is as to the method of
classification; and while over-refinement and rule-
of-thumb methods are to be avoided in dealing with
an organic instrument of government, it may prove
not entirely unprofitable to attempt to place these
classes in still larger sub-divisions. It must be borne
in mind, however, that, as lately said by Lord Moul-
ton, in the Deere Plow Co. Case,^^ these sections can-
not be taken as embodying ^^ the exact disjunctions
of a perfectly logical scheme. ' ^

As justifying this attempt to group the class-
enumerations of sections 91 and 92 of the Act,
though not supporting in their entirety the views
hereafter expressed, the following passage may be
quoted :

'Montreal v. Montreal Street Ry. (1912), A. C. 333; 81 L. J.
P, C. 145 — the Through Traffic Case. See extract ante, p. 440.
However, in the References Case (1912), A. C. 571; 81 L. J. P. C.
210, the jurisdictions are again described as "mutually exclu-
sive."

*Re References (1912), A. C. 571; 81 L. J. P. C. 210.

*Re Alberta Railway Act (1913), 48 S. C. R. at p. 25.

*• See extract ante, p. 444.

458 CANADIAN constitution: self-government.

" The division of powers under the general scheme of
the Aot is according to the subject matter of the legislation,
not according to the persons to be affected by the legislation.
Care was taken to specify those cases in which it was thought
necessary that the rights of a particular class of persons as
such or a particular class of institutions as such should be
exclusively committed to the control of one legislature or of
the ofher."'

Government property and finance. — There are,
first, certain classes in both sections 91 and 92
which cover what may be called the proprietary and
financial business of the respective governments;
and these, it is conceived, may be largely eliminated
from the region of controversy as between federal
and provincial jurisdiction. For example, section
91 places in the Dominion field for exclusive control
by the federal parliament :

1. The public debt and property.

3. The raising of money by any mode or system of taxa-
tion.

4. The borrowing of money on the public credit;

while section 92 gives exclusive control to the pro-
vincial legislatures over :

^ 2. Direct taxation within the province in order to the
raising of a revenue for provincial purposes.

3. The borrowing of money on the sole credit of the pro-
vince.

5. The management and sale of the public lands belong-
ing to the province and the timber and wood thereon.

The ** literal conflict '' between these powers is
referred to in Parsons^ Case;^ but, though there is
an apparent overlapping, these powers do not in
fact come into conflict at all. As their Lordships

^Re CoTwpanies (1913), 48 S. C. R. at p. 410, per Duff, J.
«7 App. Cas. 96; 51 L. J, P. C. 11. See extract ante, p. 419.

CLASS-ENUMEKATIONS. 459

put it, this is obviously so. They are the necessary
powers of mutually independent governments. The
wider choice of method allowed to the Dominion in
taxation does not touch the question; no one would
suggest that its power of indirect taxation could
be used to raise a revenue for provincial pur-
poses. There is of course room for controversy
as to certain public assets, whether they are Crown
property in right of the Dominion or in right of a
province; but, that controversy settled, there re-
mains no question as to legislative control. This
however is a matter already sufficiently discussed.''

Government business: public services. — There
are classes of this description in both sections 91
and 92. For example, section 91 assigns to federal
jurisdiction:

5. The postal service.

6. The census and statistics.

7. Militia, militBry and naval service, and defence.

8. The fixing of and providing for the salaries and allow-
ances of civil and other officers of the government of Canada.

9. Beacons, buoys, lighthouses, and Sa'ble Island.

11. Quarantine and the establishment and maintenance
of marine hospitals.
7 12. Sea coast and inland fisheries.

7 13. Ferries between a province and any British or foreign
country or between two provinces.

14. Currency and coinage.

17. Weights and measures.

28. The establishment, maintenance and management of
penitentiaries ;

while section 92 assigns to provincial jurisdiction:

4. The establishment and tenure of provincial offices and
the appointment and payment of provincial officers.

^ Ante, p. 386, et sea.

460 CANADIAN constitution: self-government.

6. The establishment, maintenance, and management of
public and reformatory prisons in and for the province.

7. The establishment, maintenance, and management of
hospitals, asylums, charities, and eleemosynary institutions
in and for the provincei, other than marine hospitals.

8. Municipal institutions.

9. Shop, saloon, tavern, auctioneer and other licenses in
order to the raising of a revenue for provincial, local, or
municipal purposes.

Some of these classes will call for further notice ;
but there is not now much room for serious contro-
versy as between federal and provincial jurisdic-
tion in regard to most of them.

Many other classes suggest some measure of
state control and regulation, but the above classes
have particular regard to the relations between the
state, federal or provincial as the case may be, and
the citizen; while the other classes referred to, e.g.
navigation and shipping (sec. 91, No. 10), banking
(sec. 91, No. 15), marriage and divorce (sec. 91, No.
26), the incorporation of companies with provincial
objects (sec. 92, No. 11), and the solemnization of
marriage in the province (sec. 92, No. 12), have re-
gard more particularly to the rights and obliga-
tions of citizens as between each other. The ad-
ministration of justice, both civil and criminal, in-
cluding punishment for breach of provincial law,
is a large subject presenting aspects both of state
service and intervention on the one hand and pri-
vate rights as between citizens on the other.

Persons and things. — Speaking broadly, laws are
passed to regulate and govern the actions of men.
An Act of parliament may be in the nature of spe-
cial or ^^ private bills '^ legislation regarding one
person, natural or artificial. If power to make laws
in relation to such a person is exclusively vested

CLASS-ENUMERATIONS. 461

in a particular legislature such power would prima
facie cover all his possible legal relations. The
same remark would apply if the power were exclu-
sive to make laws in relation to a particular class
of persons; all the legal relations of all persons
coming within the class would prima facie be within
the exclusive control of such legislature. And so
as to the exclusive power to legislate in relation to
a particular thing or institution or to a particular
class of either. There is no instance of specific al-
lotment of a particular person to federal or provin-
cial jurisdiction; but there are two classes of per-
sons who, for all purposes apparently, may be made
subject to federal law, namely Indians (sec. 91, No.
24), and aliens (sec. 91, No. 25). If, however, the
Dominion parliament does not see fit to legislate for
them as to all their possible legal relations, then
provincial laws may govern Indians and aliens, not
as Indians or aliens but as inhabitants of the pro-
vinces in those matters which lie within provincial
competences.^

The general jurisdiction over physical things is
with the provinces under '^ property and civil
rights in the province,'' but there are three marked
exceptions in the class-enumerations of section 91,
namely. Sable Island (No. 9), lands reserved for
Indians (No. 24), and federal undertakings. Works
and undertakings are classified according to the
potential scope of their operations geographically.
This appears in section 92, No. 10, the exceptions
there mentioned, which may be conveniently de-
scribed as federal undertakings, being carried over
to section 91 by force of No. 29 of its class-enumer-
ations. These undertakings, both federal and pro-

»i2. V. Hill (IMT), 15 Ont. L. R. 406 (Indians); Tomey Rom-
ma's Case (1903), A. C. 151; 72 L. J. P. C. 23, and Qiiong Wing
V. R. (1914), 49 S. C. R. 440 (aliens).

462 CANADIAN constitution: self-government.

vincial, are as the Privy Council has said ^ ^ physical
things, not services ' ' ; and as will be seen later this
is a consideration which has to be borne in mind
and which aids materially in determining the scope
of the two classes, federal and provincial, not only
in reference to each other but also in reference to
other classes of sections 91 and 92 respectively.

Private rights. — Of the remaining classes which
regard mainly private rights and obligations as be-
tween individuals it may be said that they present
two marked differences in the principle of classifi-
cation. First, there is a classification based upon
the principle of segregation into classes covering
more or less distinct fields of human activity. In
two classes only of section 91 is this the dominating
principle, but they cover a large and important
field, namely,

10. N'lavigation and shipping.

15. Banking, incorporation of banks, and the issue of
paper money.

Secondly, what may be called a classification ac-
eording to divisions of jurisprudence is adopted,
and the far-reaching effect is that these classes
practically cross-section the whole field of possible
legislation. There are notably two classes of this
description in section 92:

13. Property and civil rights in the province.

14. The administration of justice in the province, etc.

The range of these two classes if not modified
by the operation of other class-enumerations would
manifestly be very wide. And in a lesser degree
the same is true of such classes in section 91 as

18. Bills of exchange and promissory notes.

19. Interest.

CLASS-ENUMERATIONS. 463

20. Legal tender.

21. Bankruptcy and insolvency.

22. Patents of invention and discovery.
23^ Copyright.

26. Marriage and divorce.

27. The Criminal Law, etc.

Whole branches of jurisprudence are wrapped
up in some of these classes; and all, more or less,
interlace with and cross-section other classes in
both sections 91 and 92.

CHAPTER XXIV.

Overlapping Areas: Concurrent Powers: Federal
Authority Paramount.

The foregoing examination of the class-enumer-
ations of sections 91 and 92, cursory and somewhat
superficial though it may have been, has brought
out clearly that if each class is allowed the full
scope to which upon the natural import of the lan-
guage used it is entitled, the jurisdictions must in-
evitably overlap, or, to use Lord Watson's expres-
sion, interlace. And even after turning upon these
class-enumerations the search-light of the great un-
derlying principle of allotment, that the federal
classes are to be viewed as confined to matters of
common Canadian concern and the provincial as
covering matters of local provincial concern,^ and
after applying further the great cardinal rule of
interpretation laid down by the Privy Council in
Parsons' Case, that the two sections 91 and 92 must
be read together and the language of the one inter-
preted and, where necessary, modified by that of
the other,^ it will still appear that there are domains
in which intra vires federal legislation will meet
intra vires provincial legislation. The perplexing
problem is to reconcile this possible situation with
the essentially sound principle, declared indeed by
the Act, that the two jurisdictions, federal and pro-
vincial, are mutually exclusive.

Conflict of laws : concurrent powers, — In order
to deal intelligently with this question one must en-
deavour to get a clear idea of the meaning of the
phrases ' conflict of laws ' and ' concurrent powers.'

^ See ante, p. 448, et seq.
^ See post, p. 480, et seq.

CONCURRENT POWERS. 465

Any case which comes up for judicial decision in-
volves the application of law to facts. The law ap-
plicable may be unquestioned and the dispute be as
to the facts, or, the facts being determined, the dis-
pute may be as to the law applicable thereto. This
latter aspect is the one with which we have to deal.
As Von Savigny puts it, out of any given state of
facts arise legal relations, one or more, capable pre-
sumably of a definite, absolutely correct determin-
ation. As to any one of these legal relations there
cannot be a conflict of law. Of any number of laws
put forward as determining the legal relation, one
only is the law which governs. The views of advo-
cates, and even judges, may conflict, but the law,
though it may be from time to time varied at the
will of the law-making body in the state, is at any
given moment of time theoretically a thing certain. ^
It follows that there cannot be two statutes deter-
mining, in different ways, any one of the legal re-
lations which is to arise from any given state of
facts. If there be two statutes purporting so to do,
one of them must be of no legal effect, either be-
cause repealed by the other, or by some rule of law
made subordinate thereto as to the particular legal
relation. It follows, too, that, unless chaos is come
again, there cannot be in two legislative bodies con-
current powers of legislation in reference to the
same legal relation, in the sense that at the same
moment of time the enactment of each is law. This
is recognized in the British North America Act, for
in section 95, where powers of legislation are given
over the same subject matter to both the Dominion
and the Provincial legislatures, there is the express
provision that the legislation is not to be concur-
rent; that the enactment of a provincial legislature
is to be law only in the absence of Dominion legis-
lation upon the subject matter.

CAN. CON. — 30

466 CANADIAN constitution: self-government.

The question will be found to turn upon the fact
as put by the Privy Council in Hodge's Case^ that
subjects which in one aspect and for one purpose
fall within provincial jurisdiction may in another
aspect and for another purpose fall within the jur-
isdiction of the parliament of Canada. A particu-
lar legal relation viewed as a subject matter for
legislative treatment may in its general aspect be
within provincial jurisdiction, while in its particu-
lar setting or environment it may be a proper sub-
ject for federal legislation ; and vice versa. It must
ever be borne in mind that

" the same measures, or measures scarcely distinguishable
from each other, may flow from distinct powers; but this
does not prove that the powers themselves are identical.'^**

Some concrete examples drawn from decided
cases, may help to make the position clearer:

The law of master and servant falls in its gen-
eral aspect within provincial jurisdiction as relating
to ' civil rights in the province ' (sec. 92, No. 13).
Federal railways are within federal jurisdiction.
A provincial law, not aimed specially at the rela-
tions between federal railways and their employees,
would nevertheless govern those relations.* But
legislation aimed specially at those relations is
within federal' competence.'*

Again, the operation and effect of mercantile
documents (other than bills of exchange and pro-
missory notes) such as bills of lading and ware-

^^ App. Cas. 117; 53 L. J. P. C. 1. See extract ante, p. 426.

^^Per Marshall, C.J., in GibTions v. Ogden, 9 Wheat. 204;
quoted with approval by Fournier, J., in Parsons' Case, 4 S. C. R.
276, and by Boyd, C, in Kerley v. London ^ L. E. Ry., 26 Ont
L. R. 588.

* Can. Southern Ry. v. Jackson, 17 S. C. R. 316.

''Grand Trunk Ry v. Atty.-Gen. of Canada — the Contracting
Out Case (1907), A. C, 65 ; 76 L. J. P. C. 23. See extract ante, p. 437.

CONCURRENT POWERS. 467

house receipts is in its general aspect within the
jurisdiction of provincial legislatures as a matter
relating to * property and civil rights in the pro-
vince ' (sec. 92, No. 13). * Banking * is exclusively
within federal jurisdiction (sec. 91, No. 15). A pro-
vincial Act, not aimed specially at the use of such
mercantile documents in banking transactions,
would nevertheless govern such use of them.^ But
legislation aimed specially at their use in banking
transactions is within federal competence "^ and
only within federal competence.

Again, the evils of the drink traffic as they af-
fect the body politic of the Dominion may be com-
batted by federal legislation under the general
power over subjects of quasi-national concern con-
ferred by the opening clause of section 91.® But in
their local provincial aspect, that is to say, as a
matter of a ' merely local or private nature in the
province, ' they may be met in each province by pro-
vincial legislation under No. 16 of section 92.®

In each of the above instances if the enactments,
federal and provincial, are the same in general
tenor and effect no practical question would arise.
But if they differ, which is to govern? It is essen-
tial to the avoidance of a deadlock that in such cases
the legislation of one of the two bodies should be
of paramount authority.

* Beard v. Steele, 34 U. C. Q. B. 43, as more fuUy explained In
R. Y. Taylor, 36 U. C. Q. B. 212; Smith v. Merchants Bank, 8
S. C. R. 512.

' Tennant v. Union Bank (1894), A. C. 31; 63 L. J. P. C. 25.
See extract ante, p. 429.

'^RusselVs Case, 7 App. Cas. 829; 51 L. J. P. C. 77. See extract
ante, p. 424.

''Local Prohibition Case (1896), A. C. 348; 65 L. J. P. C. 26.
See extract ante, p. 432.

468 CANADIAN CONSTITUTION": SELF-GOVERNMENT.

Federal Laivs of Paramount Authority.

Intra vires federal legislation will override in-
consistent intra vires provincial legislation. Upon
a careful analysis of the provisions of sections 91
and 92 the Privy Council has finally enunciated the
above proposition, assigning paramount authority
to federal legislation in all cases of conflict between
intra vires enactments.

Dealing first with the enumerated classes; the
position is this: The exclusive legislative authority
of the parliament of Canada over the 29 enumer-
ated classes of section 91 is guarded and plenary
operation assured by the non-ohstante clause with
which the class enumeration opens.^° ' Notwith-
standing anything in this Act ' the parliament of
Canada may exclusively make laws in relation to
all matters which really fall within those classes.

On the other hand, the exclusive authority of
the provincial legislatures over the 16 enumerated
classes of section 92 is weakened and, in a sense,
invasion is made possible by the concluding clause
of section 91. That clause, as already noticed,^ is
really a limiting proviso or exception ^ to section
92. Provincial legislation, therefore, though plen-
ary is only so ^* subject to the provisions of section
91 '' ; ^ that is to say, subject to the right of the par-
liament of Canada to legislate fully upon all mat-
ters which strictly, that is to say, really, fall within
the 29 enumerated classes of section 91. In rela-
tion to the subjects specified in section 92 and not
falling within any of those specified in section 91

^"TennanVs Case (1894), A. C. 31; 63" L. J. P. C. 25; extract
ante, p. 429; Fisheries Case (1898), A. C. 700; 67 L. J. P. C. 90;
extract ante, p. 436.

^Ante, p. 451.

"Local ProhiMtion Case; passage ante, p. 433.

^ Re ProhiMtion Liquor Laws, 24 S. C. R. at p. 258, per King, J.

FEDERAL AUTHORITY PARAMOUNT. 469

the exclusive power of the provincial legislatures
may be said to be absolute.*

With regard to the two residuary areas of sec-
tions 91 and 92 respectively, that is to say, the
opening clause of s^ection 91 and No. 16 of section
92, the same rule of federal paramountcy obtains.
In so far as a provincial enactment based solely
upon No. 16 of section 92 comes into collision with
a federal enactment based solely upon the opening
clause of section 91, the provincial legislation must
yield to the Dominion law and must remain in
abeyance unless and until the Dominion law is re-
pealed.''

Finally, with regard to possible conflict between
federal legislation under the opening clause of sec-
tion 91 and provincial legislation under one of the
fifteen specific heads of section 92, the question is
one of difficulty. As pointed out by the Privy Coun-
cil, the exception to section 92 enacted by the con-
cluding clause of section 91 refers only to the enu-
merated classes of section 91 and has no application
to its opening clause.^ Upon this ground, the Board
held that federal legislation based solely upon the
opening, peace-order-and-good-government clause
of section 91 ought not to trench upon any provin-
cial enumerated class ; and the reason given is this :

" If it were once conceded that the parliament of Canada
had authority to make laws applicable to the whole Dominion
in relation to matters which in each province are substantially
of local or private interest, upon the assumption that those
matters also concern the peace, order, and good government
of the Dominion, there is hardly a subject enumerated in
section 92 upon which it might not legislate to the exclusion
of the provincial legislatures."

*Brophy's Case (1895), A. C. 202; 64 L. J. P. C. 70.

^ Local ProMMtion Case, extract ante, p. 432.

* Local ProMMtion Case. See passage ante, p. 433.

470 CANADIAN constitution: self-government.

. Does not this mean that such federal legislation
would be really ultra vires as being upon a matter
which had not in fact become a matter of national
concern; which had not, in other words, really at-
tained such dimensions as to affect the body politic
of the Dominion? The word ** assumption "in the
above passage, read in connection with the preced-
ing words, appears to mean ** false assumption. ' '
A. mere desire for uniformity is not enough to war-
rant federal legislation ; otherwise, as often pointed
out, the uniformity section (94) of the British North
America Act would have been unnecessary. Eeal,
community of interest in a large Canadian sense,
as distinguished from mere similarity of conditions
in the different provinces, must exist. But, the line
once really passed, the matter is no longer a matter,
for example, of '^ property and civil rights in the
province," but has become a matter affecting the
peace, order, and good government of Canada as
one body politic. In this view, it seems difficult to
deny to the parliament of Canada plenary power of
legislation affecting, if need be, rights of property
and civil rights in every or any province. The posi-
tion is thus accurately put in a recent case:

"Whe^ a matter primarily of civil rights has attained
such dimensions that it ^ affects the body politic of the Do-
minion ' and has become ' of national concern/ it has in that
aspect of it not only ceased to be 'local and proYincial,^ but
has also lost its character as a matter of ' civil rights in the
province * and has thus so far ceased to be subject to pro-
vincial jurisdiction that Dominion legislation upon it under
the 'peace, order, and good government' provision does not
trench upon the exclusive provincial field and is, therefore,
valid and paramount."^

And, in the same reference. Sir Charles Fitzpatrick,
C.J., treats as clearly established law:

' Re Insurance Act, 1910, 48 S. C. R. at p. 310, per Anglin, J.

FEDERAL AUTHORITY PARAMOUNT. 471

"That the parliament of Canada may legislate with
respect to matters which affect property and civil rights
when they have attained such dimensions as to affect the
body politic of the Dominion/^^

It is worthy of note in this connection that the
doctrine of the paramountcy of federal legislation
based solely upon the opening clause of section 91
over provincial legislation based solely upon the
residuary class, No. 16, of section 92, is not pro-
pounded upon anything to be found in their lan-
guage respectively. It must be taken as founded
upon the broad, general principle that in matters
really affecting the well-being of the whole people of
Canada as one body politic and as such covered by
federal legislation, local laws must give way. And, if
so, it would seem in principle immaterial whether the
local law were founded upon one of the more specific
class enumerations of section 92 or upon the resi-
duary. No. 16. The opening clause of section 91
draws no such distinction.

The duty of the Courts to determine whether the
line which separates matters of common concern
from matters of local provincial concern has or has
not, as matter of fact, been passed has already been^
discussed, and is not here in question. Nor are the
principles of interpretation which are to be borne in
mind in determining the scope of the various classes
now under consideration, nor the method of enquiry
to be adopted in the case of any impugned Act in
order to determine as to its validity. These sub-
jects have still to be considered. This chapter, pur-
ports to deal only with the possible conflict of intra
vires enactments.

•At p. 265.

CHAPTER XXV.

Rules of Interpketation for Determining Scope
OF THE Various Classes.

Although, as laid down by the Privy Council,
Courts of law must treat the provisions of the
British North America Act by the same methods of
construction and exposition which they apply to
other statutes,^ it is nevertheless true that in the
many years which have now elapsed since the pas-
sage of the Act certain principles and rules of inter-
pretation have become established as peculiarly to
be borne in mind in determining the scope of the
various class-enumerations.

Regard must he had to the Character of the Act.

This principle of interpretation has already been
sufficiently dealt with. The British North America
Act is a great constitutional charter.^ It establishes
a system of government upon essentially federal
principles.^ And it must be construed as intended
to cover the whole area of self-government within
the whole area of Canada ; in other words, its scheme
is exhaustive and was intended to cover the whole
field of colonial self-government in its widest
range.* That these principles are to be applied to
the interpretation of the language used to designate
the various classes of subjects assigned to the Do-
minion and to the provinces respectively, is thus
laid down:

^ Lambe's Case, 12 App. Cas. 575, 56 L. J. P. C. 87.
^See ante, p. 347, et seq.
^ See ante, p. 370, et seq.
^ See ante, p. 453, et seq.

RULES OF INTERPRETATION. 473

" Numerous points have arisen, and may hereafter arise,
upon those provisions of the Act which draw the dividing
line between what belongs to the Dominion or to the pro-
vince respectively. An exhaustive enumeration being un-
attainable (so infinite are the subjects of possible legislation),
general terms are necessarily used in describing what either
is to have ; and with the use of general terms comes the risk
of some confusion, whenever a case arises in which it can be
said that the power claimed falls within the description of
what the Dominion is to have, and also within the descrip-
tion of what the province is to have. Such apparent over-
lapping is unavoidable, and the duty of a Court of law is to
decide in each particular case on which side of the line it
falls in view of the whole statute. . . .

'^ In the interpretation of a completely self-governing
constitution founded upon a written organic instrument such
as the British North America Act, if the text is explicit the
text is conclusive, alike in what it directs and what it forbids.
When the text is ambiguous — as, for example, when the words
establishing two naturally exclusive jurisdictions are wide
enough to bring a particular power within either — recourse
rmjLst be had to the context and scheme of the Act."^

The Large Underlying Principle of Allotment must
he Kept in Vieiv.

If it be true, as affirmed in a previous chapter,*
that the policy of the British North America Act
was to assign to federal jurisdiction matters only
of common concern to the whole Union, leaving or
allotting to each province tlie control of all matters
substantially of local concern in such province, it is
accurate to say that any class of subjects specifically
assigned to the parliament of Canada was so as-
signed because recognized by the federating pro-
vinces as covering subjects in regard to which there
was a community of interest calling for unity of
action and control. In this view, it would appear

'Re References (1912), A. C. 571; 81 L. J. P. C. 210. ~

« Chap. XXII., ante, p. 448.

474 CANADIAN constitution: self-government.

to be proper to have regard to this underlying prin-
ciple of allotment in interpreting the language of
the class-enumerations of section 91. By parity of
reasoning, the principle underlying the allotment of
a particular class of subjects to a provincial legis-
lature should be taken to be this, that the subjects
falling within the class were recognized as in each
province of substantially local concern, calling for
local provincial treatment and control; and the
language employed should be interpreted with that
principle in view. These propositions, it is con-
ceived, are well warranted by the authorities.

There are very many dicta of individual judges
emphasizing the large and quasi-national scope of
many of the class-enumerations of section Ol.*^ These
were not always uttered as indicating an opinion in
favour of a restrictive interpretation; frequently
either quite the reverse or as emphasizing the
necessity for giving paramount authority to Do-
minion powers. The view, however, now being sup-
ported is that, restrictively, those powers should not
be taken to cover, or as intended to cover, matters
which in each province are there substantially of
local provincial concern and range of influence.
Mere similarity of conditions, even in important
matters, is not to be taken as establishing com-,
munity of interest.^ Diversity of treatment, if
thought desirable, is of the essence of local pro-
vincial autonomy.® As instances of the application
of the large principle of allotment above referred
to in a restrictive way, so as to cut down the range

"Be Insurance Act, 1910, 48 S. C. R. at p. 304, per Duff, J.

» Re Nakane, 13 B. C. at p. 376. See ante, p. 402.

' For example, R. v. Mohr, 7 Que. L. R. at p. 187, per Dorion,
C.J. ; Thrasher Case, 1 B. C. at p. 183, per Begbie, C.J.; R. v.
Rodertsan, 6 S. C. R. at p. 66, pjsr Gwynne, J.; R. v. Wason, 17
Ont. App. R. at p. 236, per Burton, J.A. ; Re Prohibitory Liquor
Laws, 24 S. C. R. at p. 233, per Sedgewick, J. In fact, examples
might be multiplied indefinitely.

RULES OP INTERPRETATION. 475

of the class-enumerations of section 91, some
authoritative decisions may be cited.

The federal power to exclusively make laws as
to all matters coming within the class '' the public
debt and property '' {sec, 91, No. 1) would carry
with it, upon the bare language used, control of pro-
vincial finances and provincial public property. Ob-
viously such an interpretation would be subversive
of the whole scheme of the Act, as described in the
classic language of Lord Watson in the Liquidator's
Case}^ What is covered by the item is clearly the'
public debt of Canada as a whole, assumed at Con-
federation or since incurred, and the property of
the Crown held in right of the Dominion and for
purposes of Dominion government.^ Provincial
public debts incurred in carrying on provincial
government and the public Crown assets assigned
to the provinces are in each province matters of
provincial concern only and as such under pro-
vincial control. And, in like manner, other classes
of section 91 dealing with matters of government
business and finance^are, as intimated on a previous
page,^ to be confined to the public business and
finances of the federal government.

** The regulation of trade and commerce '^ {sec.
91, No. 2), which upon the bare words would cover
a very wide field, was held in Parsons' Case^ to
cover —

" Political arrangements in regard to trade requiring the
sanction of parliament, regulations of trade in matters of
inter-provincial concern, and it may be they would include
general regulations of trade affecting the whole Dominion.
. . . The regulation of trade and commerce does not

" See the passage, ante, p. 304.

^ Burrard Power Co. v. R., 43 S. C. R. 27, per Duff, J., at p. 51.

^Ante, p. 458.

»7 App. Cas. 96; 51 L. J. P. C. 11.

476 CANADIAN constitution: self-government.

comprehend the power to regulate by legislation the con-
tracts of a particular business or trade . . . in a single
province."

So far, indeed, has the Privy Council gone in limit-
ing the scope of this class that in the Through
Traffic Case * it was practically relegated to the un-
ennmerated residuum of federal jurisdiction; in
other words, as that judgment has been construed
by Mr. Justice Anglin:

" The regulation of trade and commerce in clause 2 of
section 91 should be given a construction which will preclude
its being invoked to justify Dominion legislation trenching
upon thej provincial field."^

In the most recent case in which the range of this
class has been considered by the Privy Council, it
was held that the incorporation of a trading or com-
mercial company under Dominion legislation with
capacity to carry on its business throughout the Do-
minion was, in effect, an interprovincial or general
Dominion regulation of trade and commerce, which
could not be made futile by a provincial Act pre-
scribing, as a condition precedent to the exercise in
such province of the company's power to do busi-
ness there, that the company must take out a pro-
vincial license.^ Apart from this decision, there is
no case, since Parsons^ Case was decided, in which
provincial legislation regulating particular trades
and commercial transactions has been successfully
attacked as an invasion of the federal jurisdiction
under thisi item. No. 2 of section 91.

*^ Sea coast and inland fisheries '^ {sec. 91, No.
12) has been held to cover —

"■Montreal v. Montreal Street Ry. (1912), A. C. 333; 81 L. J.
P. C. 145. See extract ante, p. 440.

" Jee Insurance Act, 1910, 48 S. C. R.- at p. 309.

''John Deere Plow Co. v. Wharton (1915), A. C. 330; 84 L. J.
P. a 64.

RULES OF INTERPRETATION. 477

" subjects affecting the fisheries generally, tending to
their regulation, protection, and preservation, matters of a
national and general concern and important to the public,
such as the forbidding fish to be taken at improper seasons
in an improper manner, or with destructive instruments,
laws with reference to the improvement 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 a,t large, who are interested in the fisheries as a source
of national or provincial wealth:"^

And this view has been substantially upheld in the
Privy Council.^ The Dominion parliament cannot
interfere with the rights of property vested in
riparian proprietors, whether a province or an in-
dividual, further than laws within the above limits
may curtail their exercise. The carrying on of a
fisherman ^s business in a particular province may
be a matter of local concern and a provincial ob-
ject within the meaning of section 92, No. 11, *^ the
incorporation of companies with provincial ob-
jects,'^ so as to justify the incorporation of a pro-
vincial company to carry it on.^

Again, ^' bankruptcy and insolvency ^' (sec. 91,
No, 21) has been held to contemplate only the enact-
ment of a general code or system for the compulsory
administration and distribution of the assets of per-
sons who may become bankrupt or insolvent ** ac-
cording to rules and definitions prescribed by
law.^'^° In the absence of such a Dominion system,
so prescribed by federal law, the whole field is prac-
tically within provincial jurisdiction, as a matter
of substantially local concern in each province/

^ R. V. Robertson, 6 S. C. R. 52, per Ritchie, C.J., at p. 120.

'Fisheries Case (1898), A. C. 700; 67 L. J. P. C. 90.

" Re Lake Winnipeg Transp. Co., 7 Man. L. R. 255.

^^UUnion St. Jacques v. Belisle, L. R. 6 P. C. 31. See extract
ante, p. 414.

^Voluntary Assignments Case (1894), A. C. 189; 63 L. J. P. C.
59. .

478 CANADIAN constitution: self-government.

Upon this view the various Creditors' Belief Acts
in force in the different provinces under provincial
legislation are valid enactments as relating to '^pro-
perty and civil rights in the province '^ (sec. 92, No.
13) f and a provincial Act which, in view of the em-
barrassed state of a company's finances, forced
commutation upon certain annuitants was upheld as
relating to a matter of a '* merely local or private
nature in the province,'' even though at the time
there was a federal Insolvency Act in force.^

In order to determine the meaning of the terms
employed in describing any particular class, other
parts of the British North America Act and of other
Imperial Acts in pari materia may he looked atJ^

It was pointed out in an earlier chapter that the
other Imperial Acts which have been found helpful
in interpreting the British North America Act have
been as a rule constitutional statutes.** For example,
the meaning of the words '' the regulation of trade
and commerce '^ {sec. 91, No. 2) was to a certain
extent determined by the meaning given to a some-
what similar phrase in the Act of Union between
England and Scotland.® That a restricted scope was
intended was, in the opinion of the Privy Council,
further evidenced (1) by the collocation of this class
with others of national and general concern, indicat-
ing that regulations relating to general trade and
commerce were in the mind of the framers of the
Act; and (2) by the particular enumeration in sec-
tion 91 of such classes as banking, weights and
measures, bills of exchange and promissory notes,

' Voluntary Assignments Case, uH supra.

* L' Union St. Jacques v. Belisle, uM supra.

* Parsons' Case, 7 App. Cas. 96; 51 L. J. P. C. 11.
"See ante, p. 355, et seq.

* Parsons' Case, uM supra.

RULES OF INTERPRETATION. 479

etc., which enumeration would have been meaning-
less if the larger scope had been intended for No. 2.

In the same case, the meaning of the phrase
'* property and civil rights '^ (sec. 92 ^ No. 13) was
elucidated by reference to the same phrase in sec-
tion 94 of the British North America Act and in
section 8 of the Quebec Act, 1774.

The scope of the class "' interest "" (sec. 91, No.
19) was determined by its collocation with classes
clearly relating to mercantile transactions, and a
percentage added by provincial legislation to taxes
in arrear was held intra vires as not conflicting with
the authority of the Dominion parliament to legis-
late as to interest.^

In an opinion given by the Law Officers of the
Crown in England as to the scope of the words
'' the solemnization of marriage in the province "
{sec. 92, No. 12), the same meaning was attributed
to those words as they had been held to bear in an
English statute.^

The reconciliation of one class of section 91 with
other classes of the same section, though not in it-
self of great importance, falls within the rule now
under discussion. Logically, of course, they should
not overlap.^ But the necessity for reconciling the
respective class-enumerations of sections 91 and 92
is imperative. The jurisdictions were intended to
be and indeed are expressly stated by the Act itself
to. be mutually exclusive; and in the most recent
pronouncement of the Privy Council they are so
described.^" The next rule deals with this feature

'Lynch v. Can. N. W. Land Co., 19 S. C. R. 204. See post,
p. 802.

•Quoted by Davies, J., in Re Marriage Laws, 46 S. C. R. at
p. 342.

"See ante, p. 449.

*»iJe References (1912), A. C. 571; 81 L. J. P. C. 210. See
extract ante, p. 442.

480 CANADIAN CONSTITUTION": SELF-GOVERNMENT.

and, thougli, strictly speaking, it is only one branch
of the present rule, it is of cardinal importance and,
therefore, deserves separate treatment.

Sections 91 and 92 must he read together and the
language of the one interpreted, and, where neces-
sary, modified hy that of the other.^

Very few cases arise which do not call for the
application of this rule and to multiply instances
here would be but anticipating much of what must
be said hereafter in dealing with specific classes. The
emphasis is to be laid on the phrase ^^ where neces-
sary, modified.'' That phrase, which applies recip-
rocally, indicates most strongly the dissent of the
Privy Council from the formula of Mr. Justice
Gwynne as set out on a previous page,^ which would
have allowed play to provincial legislation under
section 92, only after full scope had been given to
federal legislation under section 91 upon the widest
possible interpretation of the language of its class
enumerations; and which, if upheld, would have
made of the Union not a confederation, but, in
effect, a legislative union under the control of the
parliament of Canada. As will appear more fully
hereafter, the rule now under discussion largely for-
bids the growth of any doctrine of implied powers
to swell federal jurisdiction at the expense of the
provinces.^ Out of its application has grown a sub-
rule of marked importance:

From any large general class in either section
must he excepted any particular class in the other

^ Parsons' Case. See extract ante, p. 419, where some examples
are given.

''Ante, p. 412.

^See post, p. 493, et seq.

RULES OF INTERPRETATION. 481

which forms a branch or sub-division of the larger
general class,*

For example : From the general class ' * criminal
law {sec. 91, No, 27) must be excepted the particular
class, provincial penal law (sec. 92, No. 15).^

From '^ the regulation of trade and commerce ''
{sec. 91, No. 2) must be excepted trade '^ licenses '^
{sec. 92, No. 9).^

From '^ property and civil rights '^ {sec. 92, No.
13) must be excepted many items of section 91/

From ^' the administration of justice in the pro-
vince '' must be excepted certain branches of juris-
prudence which are to be found wrapped up in some
of the items of section 91.^

It has, indeed, been suggested that all the items
of section 92 are in the nature of exceptions to sec-
tion 91 f but, while there is a sense in which the pro-
position is certainly true, it is equally certain that in
the sense of the rule under discussion some of the
items in section 91 are particular classes to be ex-
cepted out of larger general classes enumerated in
section 92.^'

//, on the due construction of the Act, a power be
found to fall within either section, it would be quite
wrong to deny its existence because by some possi-

* Parsons' Case, extract ante, p. 419. Some examples are there
given,

= Reg. V. Boardman, 30 U. C. R. at p. 556. See post, p. 564, et seq.
« FredericTcton v. Reg., 3 S. C. R. at p. 551.
' In the Quebec Resolutions, 43 (15), the exception is expressly
made.

* See post, p. 554, et seq.

*Reg. V. Severn, 2 S. C. R. 106, 110; Thrasher Case, 1 B. C.
(pt. 1) 170.

" See per Burton, J.A., in Hodge v. Reg., 7 O. A. R. at p. 274.

CAN. CON. — 31

482 CANADIAN constitution: self-government.

biliiy it may he abused or may limit the range which
otherwise would be open to the other legislature.^

y In the case from which the rule is taken, the
right of the provinces to tax objects and institutions
over which the federal parliament has legislative
jurisdiction was affirmed.^ Provincial legislatures
may pass Mortmain Acts and thus prevent federal
corporations from carrying on the business for
which they are incorporated.^ Dominion excise laws
may be rendered nugatory by provincial prohibi-
tion.* A province may sell its timber on terms pro-
hibiting export.^ Fisheries regulations may preju-
dicially affect the owners of fishing grounds, pro-
vincial or private.*'' Railway legislation by the
federal parliament may affect private rights and
limit and regulate appeals to the Courts for their
protection ; and, on the other hand, federal railways
are in many matters subject to provincial laws.*^ As
has been said, lawful legislation does not become
unlawful because it cannot be separated from its in-
evitable consequences.®

^Lamhe's Case, extract ante, p. 427.

''The rule is to the contrary in the United States, as is inti-
mated in Lambe's Case. " The states have no power, by taxation
or otherwise, to impede, burden, or in any manner control any
means or measures adopted by the federal government for the
execution of its powers." — Mich. Univ. Law Lectures, 1889, p. 94.
See ante, p. 401.

^Parsons' Case, 7 App. Cas. 96; 51 L. J. P. C. 11. See, however,
John Deere Plow Co. v. Wharton (1915), A. C. 330; 84 L. J. P. C.
64.

*Man. Liquor Act Case (1902), A. C. 73; 71 L. J. P. C. 28.

» Smylie v. Reg., 27 O. A. R. 172.

''Fisheries Case (1898), A. C. 700; 67 L. J. P. C. 90.

^See post, p. 759..

^Per Wilson, C.J., in Reg. v. Taylor, 36 U. G. Q. B. 206.

CHAPTER XXVI.

The Method of Enquiry: Aspect and Purpose:
Presumption in Favor of Validity.

The method of enquiry here discussed has
primary reference to the legislation impugned.
Side by side with it must proceed the enquiry as
to the scope of the various enumerated classes. As
from time to time the dividing lines of these classes
become more clearly marked by authority, the task
of assigning an enactment to the class to which it
truly belongs will, perhaps, be less difficult.

The general rule laid down in Parsons' Case,'^
still stands good. The first question in reference
to any impugned Act is whether it deals with a
matter prima facie within section 92. If it does
not, no further question remains ; if the legislation
be federal, infringing no imperial limitation, it is
valid; if provincial, it is ultra vires. If the legis-
lation be prima facie within section 92, the further
questions arise, (1) whether the subject of the Act
does not also fall within one of the enumerated
classes of subjects in section 91, and (2) whether
the power of the provincial legislature is, or is not,
thereby overborne.^^

It should be noted, however, that in Parsons'
Case the Board was dealing only with the enumer-
ated classes. To cover the case of an Act based
solely upon the opening clause of section 91, that
is to say, supported only as wiihin^^ the residuum

^ See extract, ante, p. 419.

^"In the Deere Plow Co. Case (extract, ante, p. 444), this
method of enquiry is again indicated, but with a variation in the
language which shpuld be noted. The mutually exclusive char-
acter of the class-enumerations seems to be emphasized.

484 CANADIAN constitution: self-government.

of federal matters,^ the two last enquiries should
be put thus : if the legislation be prima facie within
section 92, either as coming within the 15 more
specific heads of that section or as legislation re-
garding a matter of local concern merely within the
residuary class, No. 16, these further questions
arise (1) whether the subject matter of the enact-
ment does not also fall within the opening clause
of section 91 as a matter which is of, or which has
attained, such dimensions as to affect the body
politic of the Dominion and (2) whether the power
of the provincial legislature is or is not thereby
overborne. And the question in such cases is or
may be more peculiarly one of fact, as has been
already noticed,^ while the question in other cases
is rather one of law to be determined upon a con-
sideration of legislative aspect and purpose as dis-
closed by the impugned Act itself. The matter,
however, is one of much difficulty upon which it is
not advisable to express a too decided opinion in
the absence of authority.

Legislative Aspect and Purpose: — The one great
cause of difficulty in all these cases is the fact that
subjects which in one aspect and for one purpose
fall within section 92 may in another aspect and
for another purpose fall within section 91,* and,
therefore, at the threshold of every case ^ this test
question of aspect and purpose confronts one.
Various phrases have been used by the Privy
Council to frame the issue in a clear, practical
shape. Collecting these, the test to be applied may
be thus stated:

^See ante p. 452.

^See ante, p. 376, et seq.

* Hodge's Case, extract, ante, p. 426.

''Per Osier, J.A., in Reg. v. Wason, 17 O. A. R. 221.

ASPECT AND PUKPOSE. 485

In order to ascertain the class to which a parti-
cular enactment really belongs, the primary matter
dealt with hy it,^ its subject matter and legislative
character,'^ the true nature and character of the leg-
islation,^ its leading feature, its pith and sub-
stance,^ must be determined.

If, upon such consideration, a provincial enact-
ment be found to fall within a federal class it will
be held void; and if, upon like considerations, a
federal enactment should be catalogued as within
a provincial class it will be denied operation.

And in this connection it may be added that a
particular provision in a federal Act, which though
prima facie within a provincial class, is upheld as
a provision necessarily incidental to federal legis-
lation upon a subject clearly federal, is no excep-
tion. The particular subject or legal relation dealt
with could not in that aspect of it, that is to say,
with that setting and in that environment, be said
to fall within any provincial class. ^**

Some Examples: — To attempt at this stage an
exhaustive examination of the cases in which the
above considerations have been discussed and ap-
plied would manifestly be to duplicate much of
what must be said later in dealing with specific
topics; for as already intimated this test question
of aspect and purpose is ever to the front. A few
examples, some of them showing sharp contrasts,
will help perhaps to make clearer the line of en-
quiry which should be followed in all cases.

^Russell V. Reff., 7 App. Cas. 829; 51 L. J. P. C. 77; 2 Cart. 12.
'Hodge v. Reg., 9 App. Cas. 117; 53 L. J. P. C. 1; 3 Cart. 144.
« Russell V. Reg., uM supra.

» Union Colliery Co. v. Bryden (1899), A. C. 580; 68 L. J. P. C.
118.

" See post, p. 497, et seq.

486 CANADIAN CONSTITUTION": SELF-GOVERNMENT.

In a provincial Act (British Columbia) dealing
with the working of coal mines a clause prohibiting
the employment of Chinamen in such mines under-
ground was considered by the Privy Council not to
be aimed at the regulation of coal mines at all but
to be in its pith and substance a law to prevent a
certain class of aliens or naturalized persons from
earning their living in the province. In other
words the enactment was not really in relation to
local works or undertakings (sec. 92, No. 10) or to
property and civil rights in the province (sec. 92,
No. 13) or to a matter of a local or private nature
in the province (sec. 92, No. 16); but was in fact
an enactment in relation to aliens and naturaliz-
ation (sec. 91, No. 25), and therefore ultra vires
of a provincial legislature.^ In a later case, on the
other hand, an enactment of the same legislature
denying the franchise to Japanese was held to be
legislation in relation to the provincial constitution
(sec. 92, No. 1), and as having no necessary rela-
tion to alienage ; the discrimination, in other words,
being based upon racial not national grounds.^ As
will appear later, it is difficult to reconcile these
two decisions; and in a recent case in the Supreme
Court of Canada a provision in a provincial Act
(Saskatchewan) forbidding the employment of any
white woman or girl in any restaurant, laundry,
or other place of business or amusement owned,
kept, or managed by any Chinaman, was upheld as
within provincial competence as a law for the sup-
pression or prevention of a local evil (sec. 92, No.
16), or as touching civil rights in the province
(sec. 92, No. 13). It did not in the opinion of the
majority of the Court present any aspect particu-
larly affecting Chinamen as aliens; for a natural
born British subject of the Chinese race (and there

* Union Colliery Co. v. Bryden (1899), A. C. 580; 68 L. J. P. C.
118.

*Tomey Homma's Case (1903), A. C. 151; 72 L. J. P. C. 23.

ASPECT AND PURPOSE. 487

are many such in Canada) would be under the ban
of the Act."

An Act of the Quebec legislature entitled *^ An
Act to compel assurers to take out a license,'' pro-
vided that the price of the license should consist in
the payment, by means of stamps duly affixed and
cancelled, at the time of the issue of any policy or
of any premium or renewal receipt of a sum com^
puted upon a percentage basis on the amount paid
as premium or for renewal. There was no penalty
prescribed for failure to take out a license, but de-
fault in affixing the required stamps was visited
with a money penalty and the policy could not be
sued on. The Privy Council held the Act to be not
a license Act at all but an attempt to raise a pro^
vincial revenue by indirect taxation contrary to the
restriction contained in section 92, No. 2, ** direct
taxation within the province, etc. ' ' *

Again, a provincial * * Cattle Protection ' ' Act
(British Columbia) provided that federal railways
which failed to fence should be liable for damage
to cattle which should get upon their lines owing
to such failure. At that time such fencing was not
prescribed by any federal enactment. The Privy
Council held the provincial Act ultra vires as
plainly intended to force the creation of certain
structural works in connection with federal rail-
ways which the federal parliament alone had power
to do.*^ On the other hand, a provincial Act requir-
ing the cleaning out of ditches was held to apply
to federal railways equally with other land owners

» Qmng Wing v. R., 49 S. C. R. 440. The Privy Council refused
leave to appeal. See post, p. 671. In Re Insurance Act, 1910,
48 S. C. R. 260, the question of legislative aspect and purpose also
appears; see particularly per Brodeur, J., at p. 313.

*Atty.-Gen. of Quebec v. Queen Ins. Oo., 3 App. Cas. 1090.

^Madden v. Nelson & F. 8, Ry. (1S99), A. C. 626; 68 L. J. P. C.
148.

488 CANADIAN constitution: self-government.

in a province; in other words, as to its real legis-
lative character it should be catalogued as a law
relating to property and civil rights in the pro-
vince (sec. 92, No. 13), or to a matter of a local or
private nature in the province (sec. 92, No. 16) and
not as a law relating to federal railways.^

The most noteworthy cases, perhaps, in this
connection are those in which the question has been
whether a particular enactment should be classed
as falling within the criminal law (sec. 91, No. 27),
or as within provincial penal law, that is to say,
*^ the imposition of punishment by fine, penalty,
or imprisonment for enforcing any law of the pro-
vince, etc.'' (sec. 92, No. 15). The subject is a
large one and must be fully dealt with later ; ^ but
it may be said here that the question will be found
to be this: Is the Act designed to protect the in-
terest of the Canadian public and to ensure the
well-being of all? or, is it intended as the neces-
sary sanction merely of provincial law in the in-
terest of the province or some locality therein or
of those entitled to the benefit of that law, individ-
ually considered? In the former aspect the mat-
ter is exclusively within the jurisdiction of the par-
liament of Canada; in the latter, of the provincial
legislatures in each province.*

The cases as to the liquor traffic also merit
special notice. What is popularly known as the
Scott Act, or, more accurately, the Canada Tem-
perance Act, providing for prohibition throughout
Canada on a local option basis, was upheld in Rus-

" Can. Pac. Ry. v. Notre Dame de B. 8., i6., 367, 54. See post,
p. 759.

^ See post, p. 563, et seq.

•Compare R. v. Wason, 17 Ont. R. 58; 17 Ont. App. R. 221,
with R. V. Stone, 23 O. R. 46 (cheese factories) ; and Hodge's Case,
9 App. Cas. 117; 53 L. J. P. C. 1, with Atty.-Gen. of Ontario v.
Harmlton Street Ry. (1903), A. C. 524; 72 L. J. P. C. 105, and
Ouimet v. Bazin, 46 S. C. R. 502 (Lord's Day legislation).

ASPECT AND PURPOSE. 489

sell's Case ^* as dealing with the traffic in its large
Canadian aspect as affecting the body politic of the
Dominion; while provincial regulation and even
prohibition of the traffic in its provincial aspect has
been upheld by the Privy Council.^ On the other
hand, the Dominion Liquor License Act, commonly
known at the time as the McCarthy Act, was held
to be a dealing with the traffic in what was really
its provincial aspect, and was for that reason, pre-
sumably, held to be ultra vires.^^

Colourable Legislation: — The principle of the
omnipotence of parliament forbids that any Court
should enquire into the motives that may have led
to the passage of any Act, federal or provincial.^
Jurisdiction may be questioned but not the good
faith of the legislature. What is said in the follow-
ing passage concerning provincial legislation ap-
plies equally to any federal Act :

" If a province professing to legislate in exercise of the
powers conferred by section 92 shews by its legislation that
it is in reality attempting to exercise some power conferred
upon the Dominion, exclusively, then the legislation may be
ultra vires. . . . But it has never been held and mani-
festly it would be impossible to hold that the Court has any
power to effect the nullification of a provincial statute be-
cause of the motives with which the legislation was enacted."^

There is always the possibility of an abuse
of power, but the only remedy, apart from

«» 7 App. Cas. 829; 51 L. J. P. C. 77. Extract ante, p. 424.

'Hodge's Case, 9 App. Cas. 117; 53 L. J. P. C. 1: the Local
Prohibition Case (1896), A. C. 348; 65 L. J. P. C. 26: and the
Manitoba Liquor Act Case (1902), A. C. 73; 71 L. J. P. C. 28.

^° Re Dom. License Acts Case, 4 Cart. 342, n. 2; Dom. Sess.
Papers, 1885, No. 85. See ante, p. 467. Another instance of a
federal enactment being held void as dealing with a provincial
phase of a subject which in other aspects was within federal jur-
isdiction is the Fisheries Case (1898), A. C. 700; 67 L. J. P. C. 90.
See post, p. 713.

^See ante, p. 87 et seq.

'Re Companies (1913), 48 S. C. R. at p. 423, per Duff, J.

490 CANADIAN constitution: self-government.

ultimate action by the electorate, is that which
for a time lies in the power of disallowance
conferred by the British North America Act.
For the Court, the only question is ^* whether
the one body or the other has power to make
a given law."^ When, therefore, it is said
that it is for the courts to restrain colourable en-
croachment by one body upon the field reserved for
the other, the meaning simply is that the method
of enquiry above indicated will be followed in or-
der to determine the true character of the legisla-
tion, its pith and substance, and that in reaching a
conclusion as to how a given enactment is to be
constitutionally classified the Courts will determine
its real intent, its legislative aspect and purpose,
and to that end will, if necessary, disregard title
or preamble * or misused words.*^ But if when all
is done the Act is within the powers of the enact-
ing legislature it must be given effect according to
its tenour ; for, jurisdiction conceded, the will of
parliament is omnipotent and knows no superior.

An Act may he ultra vires in part only. The
question in such case is whether the good and the
bad are so separable that each should be taken to
be a distinct declaration of the legislative will. In
such case the good will stand ; ^ but if the invalid

'Lamfte's Case, 12 App, Cas. 575; 56 L. J. P. C. 87. Extract
ante, p. 427.

*See Frederickton v. Reg., 3 S. C. R. 505; Reg. v. Wason, 17
0. A. R. at p. 223.

^ Atty.-Gen. {Que.) v. Queen Ins. Co., 3 App. Cas. 1090; Lynch
V. Can. N. W. Land Co., 19 S. C. R. 204; Pillow v. Montreal, Mont.
L. R. 1 Q. B. 401; Reg. v. Ronan, 23 N. S. 433; Tai Sing v. Maguire,
1 B. C. (pt. 1) 101.

'Fisheries Case (1898), A. C. 700; 67 L. J. P. C. 90; Blouin v.
Quebec, 7 Que. L. R. 18; Morden v. South Dufferin, 6 Man. L. R.
515 (but see Lynch v. Can. N. W. Land Co., 19 S. C. R. 204);
Ex p. Renaud, 1 Pugs. 273; Reg. v. McMillan, 2 Pugs. 112; Cooley
on Const. Limitations, 6th ed., 209, et seq. See also Fielding v.
Thomas (1896), A. C. 600; 65 L. J. P. C. 103.

PRESUMPTION IN FAVOR OF VALIDITY. 491

clause or clauses are a necessary part of the sdieme
of the Act the whole Act must f all."^ And con-
versely if 'the Act as a whole is invalid, individual
clauses which, if separately enacted, would be in^
tra vires must fall unless clearly to be taken as in-
dependent substantive enactments.^ ,

It has been said that an enactment may be in^
tra vires in some of its applications while ultra
vires in others.^ If the application of an Act to a
subject to which the enacting legislature has no
power to apply it Is Express, it is, of course, a ques^
tion of legislative competence; but if, as in most
of the cases, the application of an Act is a question
of interpretation, the rule of interpretation is to
limit the application to such subjects only as are
within the jurisdiction of the enacting legislature.
In other ,word$::, f; ^';;_;\^^'^,;,.__^_^_ ';:■*'■ ;^!'

The presumption in any given case is in favor
of the validity of an impugned Act. '^y

*^ It is not to be presumed that the legislature
of the Dominion has exceeded its powers unless
upon grounds really of a serious character. '^ ^* -

In numerous subsequent cases the principle has
been invoked in reference to both federal and pro^
vincial Acts.^ One of the strongest expressions of

' Per Ramsay; J., in DoMe v. Temp. Board, 3 Leg. News, at p.
251; Clarkson v. Ont. Bank, 15 O. R. 179, 189, 193.

^Re Bom. Liquor License Acts, 4 Cart. 342, n. 2; Gassels' Sup.
Ct. Dig. 509 ; Stephens v. McArthur, 6 Man. L. R. 508; Three Rivers
V. Suite, 5 Leg. News. 332; 2 Cart. 283.

"See Re Insurance Act, 1910, 48 S. C. R. at p. 285, per Iding-
ton, J.

^"Valin V. Langlois, 5 App. Cas. 115; ; 49 L. J. P. C. 37; Severn
V. R., 2 S. C. R. at p. 103, per Strong, J.

* See cases as to the application of provincial Acts to federal
railways, noted post, p. 759 et seq. See also Allen v. Hanson, 18
S. C. R. 667; Merchants Bank v. Gillespie, 10 S. C. R. 312; McKil-
ligan v. Machar, 3 Man. L. R. 418; Re C. P. R., 7 Man. L. R. 389;
Scott V. Scott, 4 B. C. 316.

492 CANADIAN constitution: self-government.

the rule is that *^ in cases of doubt every possible
presumption and intendment will be made in favor
of the constitutionality of the Act. ' ' ^ It does not
apply to an Act the language of which is unam-
biguous, and the effect (if the Act be held valid)
clearly beyond the competence of the legislature
by which the Act was passed. It indicates, rather,
a principle of interpretation, and may be put thus :
If possible such a meaning will be given to a sta-
tute as to uphold its validity, for a legislative body
must be held to intend to keep within its powers.^

In support of all that is said above the follow-
ing may be quoted : *

"Any legislative enactment under our federal system,
which partitions the entire legislative authority, ought to be
approached in the spirit of assuming that the legislature
did not intend to exceed its powers; and if an interpretation
can reasonably be reached which will bring it within the power
assigned the legislature in question, and given operative
effect, then that meaning ought to be given it. Of course, if
the plain language is such that to give it operative effect must
necessarily involve doing that which is beyond the power
assigned the legislature, then the Act must be declared null.

Again, the language used is sometimes capable of a double
meaning according to the respective surrounding circum-
stances to which it may be sought to be applied. In such
cases the Court, on the one hand, must refuse to give such
effect to the language as will maintain anything ultra vires
the legislature, and on the other hand give such effect to it
as will, within the purpose and power of the legislature,
render it effective."

=* Reg. V. Wason 17 O. A. R. at p. 235— per Burton, J.A.

^ No stronger instance of restrictive interpretation to save
jurisdiction could be cited than Macleod v. Atty.-Gen. N.S.W.
(1891), A. C. 455 ; 60 L. J. P. C. 55. See ante, p. 101.

*From the judgment of Idington, J., in Re Alberta Ry. Act,
48 S. C. R. at p. 24.

CHAPTEE XXVIL

The Doctrine of Implied Powers.

Referring again to the sclieme of distribution
of legislative powers as exhibited in sections 91
and 92 of the British North America Act: the de-
cisions of the Privy Council from which extracts
have been collected in a previous chapter ^ estab-
lish these propositions:

1. Dominion legislation may be said to fall
within two main divisions,^ being either (a) upon
matters falling within the 29 enumerated classes of
section 91, or (b) under the opening clause of that
section, upon matters which are or have become
unquestionably of Canadian interest and import-
ance, and which in that aspect of them call for leg-
islative action.

2. Provincial legislation also falls within two
main divisions, being either (a) upon matters com-
ing within the first 15 enumerated classes of section
92, or (b) under No. 16 of that section upon mat-
ters which, either in their entirety or in some local
provincial aspect of them, are substantially of a
merely local or private nature in each province.^

3. Dominion legislation upon matters within the
enumerated classes of section 91 is given most
marked predominancy, being guarded by a non-
ohstante and by the concluding clause which in ef-
fect provides that legislation in relation to any

1 Chap. XXI., ante, p. 412.

^ Local ProhiUtion Case (1896), A. C. 348; 65 L. J. PC. 26.
Extract ante, p. 432.

^Manitoba Liquor Act Case (1902), A. C. 73; 71 L. J. P. C. 28,
applying the principle stated in the Local Prohibition Case. Ex-
tract ante, p. 432.

494 CANADIAN constitution: self-government.

matter falling within any one of the enumerated
classes of section 91 is not an encroachment upon
provincial authority, or, in other words, is not to
be deemed legislation upon a matter of local pro-
vincial concern/ But distinctions have been drawn
between substantive and ancillary or incidental
provisions in federal Acts. Any legislation falling
strictly within any of the classes specially enum-
erated in section 91 is not within the legislative
competence of a provincial legislature ; ^ and the
abstinence of the Dominion parliament from legis-
lating to the full limits of its powers cannot effect
a transference to provincial legislatures of any
power which the Act has assigned to federal juris-
diction exclusively.^ The word substantive, as dis-
tinguished from ancillary or incidental, must be
construed in this connection as indicating that the
provisions so styled are provisions which fall
strictly within a federal class and therefore in no
aspect could be enacted by a provincial legislature.
In their essence they are federal, and this is
what is meant by saying that a province cannot,
for example, pass a bankruptcy law, a copyright
law, or enact fishery regulations or, in short, pass
any Act which, upon consideration of its real pith
and substance, must be catalogued as within one of
the federal classes. On the other hand, a Dom-
inion Act may contain ancillary or incidental pro-
visions designed to make the Act more effective or
to prevent its substantive or strictly federal scheme
from being defeated."^ Such provisions, standing
alone or in another setting, would not be of the

*See ante, p. 451.

''Fisheries Case (1898), A. C. 700; 67 L. J. P. C. 90. Extract
ante p. 436.

''Bry den's Case (1899), A. C. 580; 68 L. J. P. C. 118. Extract
ante, p. 437.

: ' Voluntary Assignments Case (1894), A. C. 189; 63 L. J. P. C.
69. Extract ante, p. 430.

THE DOCTRINE OF IMPLIED POWERS.. 495

essence, for example, of copyright legislation or
bankruptcy legislation or divorce legislation, and
might properly be within provincial competence.
But in the aspect which they present in the federal
enactment, that is to say, in that environment and
with reference to the legal relations therein dealt
with, they are really not within provincial compet-
ence. In this view there is no departure from the
essentially sound principle, expressly stated indeed
in the British North America Act, that the jurisdic-
tions, federal and provincial, are mutually exclu-
sive.^ The other principle, now authoritatively
established, of federal paramountcy must be here
recognized and a federal enactment of a merely
ancillary or incidental character when properly
forming part of federal legislation upon any of the
classes of section 91 will override repugnant pro-
vincial legislation which would otherwise be oper-
ative.®

4. To the residuum of federal matters allotted
to the parliament of Canada by the opening cla,use
of section 91 as well as to the residuum of provin-
cial matters covered by No. 16 of section 92 the
same principles apply. The jurisdictions are mutu-
ally exclusive in the proper sense, but if the Dom-
inion legislating upon a subject in its quasi-national
aspect enacts provisions which clash with those
enacted by a provincial legislature legislating in

*See ante, p. 456.

' See ante, p. 468. Various verbs have been used to describe
tMs operation; active — to override, to supervene, etc.; passive —
tbf be overborne, to yield to, to remain in abeyance, etc. But the
only noun so far used is the noun active " supervention " — per
Meredith, J., in G. T. R. v. Toronto, 32 0. R. 120 (1900). A word
is much wanted which will adequately convey the passive idea
of an eclipse, possibly of temporary duration only; the provincial
enactment being in abeyance and inoperative only while the
supervening federal enactment remains in force. See the Local
ProMMtion Case, extract ante, p. 432.

496 CANADIAN constitution: self-government.

relation to the same subject in its purely local pro-
vincial aspeot, the provincial law must remain in
abeyance unless and until the federal law be re-
pealed/" In this sense only federal legislation
within this residuary area may encroach upon the
provincial field and, as already intimated,^ upon the
field covered by the 15 more specific classes of sec-
tion 92 as well as upon that covered by No. 16 of
that section.

5. The legislative power conferred by the Brit-
ish North America Act upon Canadian legislatures,
both provincial and federal, is a plenary power of
legislation conveyed in terms '* apt to authorize
the utmost discretion of enactment for the attain-
ment of the objects pointed to/'^ The proper ap-
plication of this principle to a federal system with
mutually exclusive jurisdictions is a matter of much
difficulty. It has to be recognized that the exercise
of its power by one legislature may lessen the range
which otherwise would be open to the other ^ and
that there are many subjects upon which complete
and effectual legislation cannot be had except by
the co-operation of both legislatures, federal and
provincial.*

As put in a recent case:

" The subject dealt with may be of that complex char-
acter that concurrent legislation on the part of a provincial
legislature and Parliament is absolutely needed to effectuate
satisfactorily the purpose had in view. To the man accus-
tomed to deal only with the legal product of a single legis-
lature possessing paramount legislative authority over all
matters that can be legislatively dealt with, this latter

^'^ Local ProhiMtion Case, extract ante, p. 432.
"^Ante, p. 469.
'Ante, p. 349, et seq.
^Lamhe's Case, extract ante, p. 427.
* See ante, p. 394, et seq.

THE DOCTKINE OF IMPLIED POWERS. 497

situation seems almost incomprehensible. The situation often
exists, must be reckoned with and dealt with accordingly."^

Manifestly, therefore, what was said by an
eminent judge® in an early case stands good as a
prima facie proposition only, namely, that it is

" 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
subjects of legislation which are necessary to carry out the
object which the British North America Act declared should
be carried out by that legislature."

This is but a statement of the principle that legis-
lative power in Canada, federal and provincial, is
a plenary power, and it really does not materially
assist in the reconciliation of the respective class-
ennmerations. The cardinal principle is that each
of the two sections, 91 and 92, must be given, where
necessary, a modifying effect upon the other, thus
limiting in each the wide scope which upon the
bare words the individual class-enumerations would
have.^

Federal Ancillary Legislation : — Bearing in mind
that intra vires federal legislation will override all
inconsistent provincial law, the rule to be deduced
from the cases seems to be this: that the widest

'^Re Algeria Railway Act (1913), 48 S. C. R., per Idington, J.,
at p. 24.

* Dorion, C.J., in Bennett v. Pharm. Ass. of QueJ)ec, 1 Dor. 336;
2 Cart. 250.

'In B. C. Elec. Ry. v. V. V. & E. Ry. (1913), 48 S. C. R. at
p. 123, Mr. Justice Duff cites several cases as illustrating "the
necessity of attending to the provisions of section 92 in ascer-
taining the limits of the enumerated powers conferred by section
91." In other words, proper interpretation requires to some
extent reciprocal modification. See ante, p. 480.

CAX. CON. — 32

498 CANADIAN constitution: self-government.

discretion must be allowed to the federal parlia-
ment in the moulding of full-rounded legislation
upon all matters assigned to it by the British North
America Act,^ but that the courts have power to
prevent and will prevent usurpation under the
guise of so-called ancillary legislation.^ The con-
cluding clause of section 91, from which has been
largely drawn the doctrine of federal paramountcy,
was not meant to derogate from the powers of pro-
vincial legislatures ^^ save to the extent of enabling
the parliament of Canada to deal with matters
local or private in cases where such legislation is
necessarily incidental to the exercise of the powers
conferred upon it by the enumerative heads of sec-
tion 91. '^ ''

The words ^^ necessarily incidental to the exer-
cise of the powers conferred '' must be taken to
mean necessarily involved in the plenary exercise
of the powers conferred; and whether any im-
pugned provision of a federal Act is or is not leg-
islation in regard to a matter necessarily involved
in the due exercise of federal power over a parti-
cular class is the difficult question which the Courts
must decide.^

This was formerly much discussed, particularly
in regard to federal jurisdiction, as a question of

^Tenant v. Union Bank (banking laws), 1894, A. C. 31; 63 L.
J. P. C. 25; Fisheries Case (1898), A. C. 700; 67 L. J. P. C. 90;
Doyle V. Bell (election laws), 32 U. C. C. P. 632; 11 O. A. R. 326;
Re C. P. R. & York, 27 O. R. 559 ; 25 O. A. R. 65; In re De Veder.
21 N. B. 425; Phair v. Venning, 22 N. B. 371; Atty.-Gen. v. Foster,
31 N. B. 164; Toronto v. Can. Pac. Ry, (1908), A. C. 54; 77 L. J.
P. C. 29 (federal railway legislation) ; Toronto v. Bell Telephone
Co. (1905), A. C. 52; 74 L. J. P. C. 22 (federal works and under-
takings).

''Montreal v. Montreal Street Ry. (1912), A. C. 333; 81 L. J.
P. C. 145— the Through Traffic Case; B. C. Elec. Ry. v. T. Y. & E.
Ry., 48 S. C. R. 98.

^'^ Local ProhiMtion Case, extract ante, p. 432; repeated in the
Through Traffic Case, extract ante, p. 440.

^ See ante, p. 374 et seq.

{

THE DOCTRINE OF IMPLIED POWERS. 499

implied powers or powers by necessary implication,
and United States authorities in support of the
doctrine in its application to the legislative powers
of Congress were frequently quoted.^ But in
Lamhe's Case the Privy Council strongly depre-
cated any attempt to reason from the powers of
Congress to the powers of the parliament of Can-
ada.^ As already pointed out,* there are in the fed-
eral system of the United States no competing
class-enumerations to be reconciled. The powers
of Congress are alone enumerated, the entire re-
siduum of legislative power being reserved to the
States or to the people of the respective States.^
The absence, too, of any power in the federal
government of the United States to disallow State
legislation may have influenced the courts there in
giving as full play as possible to federal legisla-
tive powers. Moreover, following upon the class-
enumeration, power '' to make all laws which shall
be necessary and proper for carrying into execu-
tion the foregoing powers '' is expressly conferred
upon Congress by the U. S. Constitution (Art. I.,
section 8), and that Constitution and the laws
passed by Congress under it are expressly declared
(Art. VI.) to be ^^ the supreme law of the land.''
United States courts hold that Congress has an un-
fettered choice of means, let the aim be legitimate ;
and they have uniformly declined to tread upon
legislative ground by any enquiry in the case of a
federal law ^^ into the degree of its necessity.''^

The British North America Act, on the other
hand, confers power to make laws in relation to

^See, for example, Leprohon v. Ottawa, 2 Ont. App. R. 522.

' See extract ante, p. 400.

*Ante, p. 401.

"See ante, p. 399.

« U. 8. V. Fisher, 2 Cranch. 358 ; McCulloch v. Maryland, 4
Wheat. 421; JuiUard v. Greenman, 110 U. S. Rep. 421; Story on the
Const., 5th ed.. Vol. II., 153.

500 CANAMAN CONSTITUTION": SELF-GOVERNMENT.

all matters coming within certain classes which,
as between the Dominion and the provincial enum-
erations, are distinctly competing classes to be read
together and the language of the one to be inter-
preted, and where necessary modified, by that of
the other/

The first question therefore in every case is
whether the federal enactment in controversy is
strictly in relation to a matter coming within a
particular class of section 91. If it is, no question
can arise as to possible competing provincial leg-
islation.^ But it is often difficult to determine just
what provisions are of the essence of a federal
class so as to preclude under all circumstances the
enactment of similar provisions in provincial leg-
islation, and what are ancillary provisions merely
covering matters which in themselves if they stood
alone or in other environments would be within
provincial competence. The cases as to insolvency
legislation bring out this distinction most clearly.
'^ Bankruptcy and Insolvency ^' (sec. 91, No. 21),
as those words have been construed, is a purely
statutory creation ® and procedure must necessarily
form an essential part of any law dealing with in-
solvency; ^^ and provincial jurisdiction over proce-
dure in civil cases (sec. 92, No. 14), can in no sense
be considered a competing power. On the other
hand, while insolvency legislation must necessarily
involve some modification of the law in regard to
property and civil rights in a province (sec. 92, No.
13) the extent of its interference will depend upon
the scheme adopted, and bankruptcy legislation may
frequently require various ancillary provisions for

^ See ante, p. 480.

"i^e Alberta Ry. Act (1913), 48 S. C. R. 9, particularly at p. 38,
per Duff, J.

^UUnion St. Jacques v. Belisle, L. R. 6 P. C. 31.
^^Cushing v. Dupuy, extract ante, p. 418.

THE DOCTRINE OF IMPLIED POWERS. 501

the purpose of preventing the scheme of the Act
from being defeated. Such ancillary provisions
standing alone or in relation to other matters, that
is to say, in other aspects, might well be within pro-
vincial competence.^ And the principle now under
discussion lays it down that if such ancillary pro-
visions in a federal insolvency law are to override
provincial law they must be necessarily incidental
to the exercise of federal jurisdiction over the class
'^ bankruptcy and insolvency.'^

In this connection reference may usefully be had
to the cases in which the scope of a company's
powers is discussed;^'' and particularly to Lord Mac-
naghten 's criticism of the terms ' ancillary ' and
' incidental ' as rather loose expressions.^'' At the
same time, too, it is to be remembered that, in the
case of an Act or other instrument of incorporation,
there is no competing class-enumeration to cut down
the meaning of the language used to define the com-
pany's powers.

In a previous chapter it was pointed out that
two of the provincial classes, namely, '' property
and civil rights in the province '' (sec. 92, No. 13)
and ^' the administration of justice in the province,
including . . . proceedings in civil matters in
those courts '' (sec. 92, No. 15), notably cross-sec-
tion the whole field of possible legislation. In a
sense, the provincial residuary class (No. 16) might
be added. Subject to the suggestion that procedure
may not be an essential part of federal law in re-
lation, for example, to patents^ copyright, divorce,
navigation and shipping, and other possible
branches of jurisprudence which may be wrapped
up in some of the class-enumerations of section 91,

^ Voluntary Assignments Case, extract ante^ p. 430.
. ^See Chap. XXXV., post, p. 718 et seq.

;. , ^^ Amal. Soc. of Ry. Servants v. Osdorne (1910), A. C. 87; 79
L. J. P. C. 87. Extract, post, p. 719.

502 CANADIAN constitution: self-government.

but may be merely a possible ancillary feature of

such legislation, the following statement may be

■ taken as correctly indicating the present position:

" Up to the present time the only cases in which the
courts have sustained the attempt on the part of the Do-
minion to exercise an ancillary overriding power have been
cases in which the legislation regarded from the provincial
point of view would be considered to be legislation dealing
with a subject-matter falling within the classes of subjects
included in No. 13 or No. 16 of section 92; and to suggest
that when it is proposed to exercise such a paramount sub-
sidiary power in matters clearly falling within other classes
specially mentioned in that section great care ought to be
observed in order to ascertain whether the Dominion has
really been invested with the authority it claims to possess."^ •

The question has been much debated of late in
reference to federal railway legislation. In the
Through Traffic Case the Privy Council held that
it was not necessarily incidental to the due exer-
cise of federal jurisdiction over federal railways
that the federal parliament should have authority
to compel a provincial railway to enter into agree-
ment with a federal railway in reference to the
rates to be charged by the provincial railway for
carrying ^^ through traffic '^ over its line. Pro-
vincial railways are exclusively within provincial
jurisdiction, and it was the view of the Board that
if any evil had grown up in the way of unjust dis-
crimination or otherwise it could be met only by
the co-operation of the two legislatures.^ On the
other hand, it has recently been held by the Privy
Council that a provincial railway cannot, by virtue

^Per Duff, J., in B. C. Elec. Ry. v. Y. Y. & E. Ry. (1913), 48
S. C. R. at p. 122. In the Through Traffic Case, 43 S. C. R. at pp.
239 et seq., Anglin, J., collects and discusses nearly all the cases
in which the doctrine of * necessarily incidental powers ' appears.

^Montreal v. Montreal Street Ry. (1912), A. C. 333; 81 L. J.
P. C. 145. See ante, p. 394.

THE DOCTRINE OF IMPLIED POWERS. 503

of provincial legislation alone, force a crossing
over a federal railway; but this is put upon the
ground that legislation touching the structural ar-
rangements of a federal railway is strictly within
the federal class/ Whether a federal railway, by
virtue of Dominion legislation alone, can force a
crossing over a provincial railway, is not touched
in the judgment of the Board, bulk in the Supreme
Court. Mr. Justice Duff expressly left the question
open. In another recent case '^ the question was as
to the right of the Board of Railway Com-
missioners acting under federal legislation to ex-
act from a provincial street railway company con-
tribution toward the cost of building a viaduct de-
signed to afford an overhead crossing along the
streets of Vancouver over a Dominion railway in
lieu of the previously existing level crossings. The
Privy Council held that the federal Railway Act
conferred no such jurisdiction upon the Board of
Railway Commissioners and it was therefore un-
necessary to determine whether the Dominion Par-
liament could have conferred it. In the Supreme
Court of Canada the order of the Railway Board
had been upheld by a majority, but three of the
judges were of opinion that federal legislation in
such case would be unwarranted, not being neces-
sarily incidental to the due exercise of federal
authority over federal railways. One of the three,
however — Mr. Justice Idington — thought the mat-
ter precluded by an earlier decision of the Privy
Council and therefore concurred in upholding the
order of the Railway Board. The reasons ad-
vanced by Mr. Justice Duff and concurred in by
Mr. Justice Brodeur were characterized by the

*Re Alherta Ry. Act (1915), A. C. 363; 84 L. J. P. C. 58;
affirming 48 S. C. R. 9.

»B. C. Elec. Ry. v. Y. Y. <€ E. Ry. (1914), A. C. 1067; 83 L. J.
P. C. 374, reversing 48 S. C. R. 98.

504 CANADIAN constitution: self-government.

Privy Council as ^^ weighty reasons,'' which, how-
ever, their Lordships, for the reason above given,
did not find it necessary to pass upon. The follow-
ing extract, therefore, may be taken as containing
an authoritative definition of the phrase ^ neces-
sarily incidental ' :

"When such a conflict arises it rests with the courts in
each case to determine whether the particular enactment in
so far as it relates to the provincial railway or the provincial
railway company is one that is so essential to the effective
exercise of Dominion legislative authority relating to Do-
minion railways that power to pass it must be taken to have
been conferred by the grant of that authority. I assume for
the purpose of deciding the question before us that in some
degree some such power is comprehended within that auth-
ority; limited by the necessity above indicated, of the exist-
ence of which, when it is disputed, the courts must in the
last resort be the judges.

In this view then in every case in which a conflict does
arise the point for determination must be whether there exists
such a necessity for the power to pass the particular enact-
ment in question as essential to the effective exercise of the
Dominion authority as to justify the inference that the
power has been conferred. ...

It is necessary, in determining the scope of the ancillary
power and whether in any particular instance the circum-
stances have arisen which justify the exercise of it, to decide
that question in the light of the facts that plenary legislative
jurisdiction respecting the provincial railway has been speci-
fically conferred upon the province; and that from the pro-
vincial point of view it is the province which was intended
to be the final judge as to the desirability of any proposed
legislation relating to the provincial railway."

In other words, the grant to the provinces of
exclusive jurisdiction over provincial railways for-
bids the inference that federal jurisdiction over
them is to be implied as necessarily incidental to
the due exercise of federal jurisdiction over federal

THE DOCTKINE OF IMPLIED POWERS. 505

railways. Can this proposition be stated more
broadly so as to give it general application, thus:
the grant to the provinces of exclusive jurisdiction
over the enumerated classes of section 92 forbids
the inference that federal jurisdiction over them is
to be in any case implied as necessarily incidental
to the exercise of federal jurisdiction over the enum-
erated classes of section 91 1 An affirmative answer
would appear to run counter to the many decisions
in which so-called ancillary provisions in federal
Acts have been upheld; while a negative answer
would appear to deny the essentially sound princi-
ple, expressly declared indeed by the British North
America Act itself, that the jurisdictions, federal
and provincial, are mutually exclusive, as stated in
one of the most recent decisions of the Privy Coun-
cil.^ The true reconciliation, it is conceived, lies
in the proper appreciation and application of the
oft-quoted principle laid down in Hodge's Case that
subjects which in one aspect and for one purpose
fall within a provincial class may in another aspect
and for another purpose fall within a federal class,
a proposition which also involves this, that if the
subject calls for legislation in both of the supposed
aspects, the co-operation of the two legislatures is
necessary.

The relations existing between two such classes
as federal railways and provincial railways are ob-
viously different from those which exist between
two such classes as federal railways and property
and civil rights. In the first case physical things,
each a distinct and separate entity, are concerned;
in the second, a physical thing on the one hand and
a large branch of jurisprudence on the other. In
regard to rights of property and civil rights as well
as in regard to all other matters relating to federal

^References Case, extract ante, p. 442.

506 CANADIAN constitution: self-government.

railways as physical things they are put in a class
by themselves. The legal relations between those
who handle them, whether as employers or work-
men are, quoad them, matter for federal legislation
only. On the other hand, quoad a province and the
people of a province, a general law of the province
might govern the relations between a federal rail-
way company and its workmen in the absence of
such special federal law."^ In the absence of direct^
authority it can only be suggested that the various
cases in which so called ancillary legislation has
been upheld are cases in which the enactment in
controversy dealt with an aspect of the subject upon
which provincial legislation would have been in-
competent; in other words the subject in the as-
pect dealt with fell strictly within one of the enum-
erated classes of section 91.

Provincial Ancillary Legislation: — In the view
just put forward, provincial ancillary legislation is
quite possible. The powers of a provincial legisla-
ture, however, are not protected by any non-oh-
stante clause or by any clause like that with which
section 91 concludes. The true position would ap-
pear to be that if a power

" exists in the provinces it must be found either in the enu-
merations of section 92 or in what is reasonably and prac-
tically necessary for the efficient exercise of siieh enumerated
powers, subject to the provisions of section 91; otherwise it
can in no aspect be within the sphere of provincial legisla-
tion.^^«

' And the same view is thus expressed in a re-
cent case:

"As to the parallel drawn between the incidental or neces-
sarily implied powers which have been held to be part and

' See ante, p. 466.

'^Per King, J., in Re Prohihitory Liquor Laws, 24 S. C. R. at
p. 258.

THE DOCTRINE OF IMPLIED POWERS. 507

parcel of the power conferred by the powers given the Do-
minion over the enumerated subjects of section 91 and the
supposed need to give vitality to the power of the provinces
. . . by means of implying similar incidental and neces-
sarily implied powers in anything to be enacted in order to
the carrying into execution of any such provincial powers, I
have just this to say: I agree the analogy holds good until
the attempt to give operative effect to it runs against the
exclusive precedent power and its products/'®

In conclusion, reference should be directed to
the recent judgment of the Privy Council in the
John Deere Plow Co. Case^^ Two things are there
emphasized: First, that the class-enumerations of
sections 91 and 92 must not be taken as ^' the exact
disjunctions of a perfectly logical scheme,'' but
must be reciprocally modified in interpretation if
the real intent of the Act is to be carried out; and,
secondly, that

" It must be borne in mind in construing the two sections
that matters which in a special aspect and for a particular
purpose may fall within one of them, may in a different
aspect and for a different purpose fall within the other. In
such cases the nature and scope of the legislative attempt of
the Dominion or the province, as the case may be, have to be
examined with reference to the actual facts if it is to be pos-
sible to determine under which set of powers it tails in sub-
stance and reality.'^

All of which brings to mind what was said by
Chief Justice Marshall:^

" All experience shews that the same measures, or meas-
ures scarcely distinguishable from each other, may flow from
distinct powers ; but this does not prove that the powers them-
selves are identical .''

^Per Idington, J., in Re Alberta Ry. Act (1913), 48 S. C. R.
at p. 27.

" See extract ante, p. 444.

^Gibbons v. Ogden (1824), 9 Wheat. 1, 204, quoted with ap-
proval by Boyd, C, in Kerley v. London, dc., Ry., 26 Ont. L. R. 588.

CHAPTER XXVIII.

The Administration of Justice.

The following are the sections of the British
North America Act which deal directly with the
administration of justice in Canada and its pro-
vinces :

VI. Distribution of Legislative Powers.
Powers of the Parliament.

91. ... It is hereby declared that (notwithstanding
anything in this Act) the exclusive legislative authority of
the parliament of Canada extends to all matters coming
within the classes of subjects next hereinafter enumerated;
that is to say : — ...

^7. The Criminal law, except the constitution of Courts
of criminal jurisdiction, but including the procedure
in criminal matters.

28. The establishment, maintenance, and management of
penitentiaries. ...

Exclusive 'powers of Provincial Legislatures.

92. In each province the legislature may exclusively make
laws in relation to matters coming within the classes of sub-
jects next hereinafter enuDfierated ; that is to say: — . . .

6. The establishment, maintenance, and management of
public and reformatory prisons in and for the pro-

\vince. ...
14. The administration of justice in the province, includ-
ing the constitution, maintenance, and organization of
provincial courts, both of civil and of criminal juris-
■ ' diction, and including procedure in civil matters in
those courts.
15. The imposition of punishment by fine, penalty, or
imprisonment for enforcing any law of the province

THE ADMINISTRATION OP JUSTICE. 509-

made in relation to any matter coming within any of
the classes of subjects enumerated in this section. . . .

VII. JutDIOATURE.

96. The Governor-General shall appoint the judges of
the superior, district, and county courts in each province,
except those of the courts of probate in Nova Scotia and New
Brunswick.

97. Until the laws relative to property and civil rights
in Ontario, Nova Scotia, and New Brunswick, and the proce-
dure 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 from the respective bars
of those provinces.

98. The judges of the courts of Quebec shall be selected
from the bar of that province.

99. The judges of the superior courts shall hold office
during good behaviour, but shall be removable by the Gover-
nor-General on address of the senate and house of commons.

100. The salaries, allowances, and pensions of the judges
of the superior, district, and county courts (except the courts
of probate in Nova Scotia and New Brunswick), and of the
admiralty courts in cases where the judges thereof are for the
time being paid by salary, shall be fixed and provided by the
parliament of Canada.

101. 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 administration of the laws of
Canada. . . .

IX. Miscellaneous Provisions.

129. Except as otherwise provided by this Act, all laws in
force in Canada, NoYa Scotia or New Brunswick, at the
Union, and all courts of civil and criminal jurisdiction, and
all legal commissions, powers and authorities, and all offices,

510 CANADIAN constitution: (SELF-GOVERNMENT,

judicial, administrative 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 respec-
tive province, according to the authority of the parliament
or of that legislature under this Act.

Canadian Judicial System.

The subject naturally divides into three
branches: (1) the constitution, maintenance and
organization of courts; (2) their jurisdiction; and
(3) their procedure.

I. The Constitution, Maintenance and Organiza-
tion OF Courts:

(a) Provincial Powers.

At the date of confederation there were in ex-
istence in the different provinces a large number
of Courts of law; and for some years thereafter the
administration of justice throughout Canada was
entirely, and still is largely, in the hands of these
provincial Courts. Section 129 of the British North
America Act expressly provides that all laws and
all Courts of civil and criminal jurisdiction, and all
legal commissions, powers and authorities, and all
officers, judicial, administrative and ministerial, ex-
isting in the different provinces at the union, should
continue as if the union had not been made; sub-
ject of course to future legislation by the proper
legislature, federal or provincial, under the Act.
It was evidently intended that in the main the

^This section of course now applies to Prince Edward Island
and British Columbia. See ante, pp. 23, 24.

THE ADMINISTRATION^ OF JUSTICE. 511

administration of justice throughout Canada should
be through the medium of these provincial Courts,
thus continued." This is clearly evidenced by the
assignment to the provinces of the power to exclu-
sively make laws in relation to '^ the administra-
tion of justice in the province, including the con-
stitution, maintenance and organization of provin-
cial Courts, both of civil and criminal jurisdiction.^'

The judges of certain of these Courts are now
appointed and paid by the Dominion Government;
and for certain, perhaps obvious^ reasons the par-
liament of Canada is empowered by section 101 to
establish a general Court of Appeal for Canada and
any additional Courts for the better administration
of the laws of Canada. The phraseology of this
last clause of section 101 is a clear recognition of
the fact that the provincial Courts would neces-
sarily be called upon to administer the laws of
Canada ^ as, distinguished from the laws of the
various provinces, and the provision was inserted
with a view to the better administration of those
Dominion laws through the medium of additional
Courts established by the Dominion government,
should occasion arise.

Subject, therefore, to the appointing power, and
to the reserve power to create additional Courts as
above indicated, the right to regulate and provide
for the whole machinery for the proper adminis-
tration of justice in its widest sense, including the
appointment of all the judges and officers requisite
therefor, is with the provincial legislatures. The
position is well put by Mr. Justice Street, who, re-
ferring to the language of section 92, No. 14, said:*

2 Ritchie, C.J., in Valin v. Langlois, 3 S. C. R. at p. 22.

^ See Quebec Resolutions, Nos. 31 and 32, in Appendix.

*R. \\ Bush. 15 O. R. 398. See also Reg. v. Levinger, 22 0. R.
690, and Re Small Debts Courts, 5 B. C. 246, per Walkem, J., at
p. 260: — "Where, therefore, the legislature constitutes a court,

512 CANADIAN constitution: self-government.

" Now, these words, standing alone and without any in-
terpretation or context, appear to he sufficient, had no other
clause in the Act limited them, to confer upon the provincial
legislatures the right to regulate and provide for the whole
machinery connected with the administration of justice in
the provinces, 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 he refers to sections 96, 100, and 101,
quoted above, as the only sections in any way lim-
iting the scope to be given to this class No. 14, and
then 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 with by the provincial legislatures, in
pursuance of the powers conferred upon them by paragraph
14 of section 92." . . . The words, ^ constitution, main-
tenance, and organization of provincial courts,' do not, as I
read the clause, in any way limit the scope of the general
words preceding them, by which the whole matter of the ad-
ministration of justice is included."

The right of the provincial legislatures to create
new Courts and, subject to section 96, to appoint the
judges who shall preside over them has been fre-
quently exercised and has been affirmed in a num-
ber of cases. Courts of Appeal, for example, have
been created in Manitoba and British Columbia, and
the Dominion Government has made the requisite
appointment of the judges of those Courts and has
provided for their salaries and allowances under
section 100 of the Act, without any question being
raised as to the validity of the provincial legisla-
tion. Nova Scotia has likewise established a

whether of superior or inferior jurisdiction, the power to appoint
the judge rests exclusively (if s. 96 does not interfere with it)
with the Lieutenant-Governor."

THE ADMINISTRATION OF JUSTICE. 513

County Court system and no question has been
raised as to tlie validity of the legislation; and the
Dominion government duly appoints and pays the
judges of the various County Courts in that pro-
vince.^ The same remark applies to British Col-
umbia.^ The exercise of this power by the pro-
vinces has been viewed with some jealousy by fed-
eral Ministers of Justice, particularly where Courts
have been established with jurisdiction akin to that
of County or District Courts, but under other
names so as to leave the power to appoint the judges
of such Courts in the hands of the provincial gov-
ernment.^

The decisions of the courts have been almost
without exception in affirmance of provincial power
to create courts ® for the administration of justice
as well under federal as under provincial law; and
may be briefly indicated :

Quebec: — In an early case the Privy Council
held intra vires a Quebec Act creating Fire Mar-
shals' Courts;^ and the establishment in that pro-
vince of District Magistrates ' Courts, including the

° See Johnson v. Poyntz, 2 R. & G. 193, and Crowe v. McGurdy,
18 N. S. 301.

•See Re County Courts of B. C, 21 S. C. R. 446.

^ See the report of Sir John Thompson, Minister of Justice,
upon the disallowance of an Act of the Quebec assembly respect-
ing District Magistrates' Courts: Can. Sess. Papers, 1889, 47c.
It recites the action of previous ministers in similar cases and
criticizes many of the cases noted in the text. In one passage
it even seems to suggest that the creation of new courts with
jurisdiction to administer Dominion law is within the exclusive
power of the Dominion parliament, referring evidently to s. 101
in which the word is not " new " but " additional." See note (1),
post, p. 514.

* As to courts of appellate jurisdiction, see post, p. 538.

*R. V. Coote (1873), L. R. 4 P. C. 599; 42 L. J. P. C. 45; and see
Ex p. Dixon, 2 Rev. Crit. 231, cited by Sir John Thompson in his
report referred to in the note below.

CAN. CON. — 33

514 CANADIAN constitution: self-government.

appointment of the presiding officers, was held to
be within the power of the assembly by the Quebec
Court of Queen's Bench/^ In this case Ramsay^
J., speaks of the Privy Council decision in the Coote
Case as directly recognizing the right of the local
legislature to create new Courts for the execution
of criminal law as also the power to nominate mag-
istrates to sit in such Courts/

New Brunswick: — The creation by the New
Brunswick assembly of Parish Courts presided
over by commissioners appointed by the provincial
government, was held to be within its powers."^ The
power of the local legislature to establish Courts
seems to have been treated as beyond question, the
point more fully discussed being as to the validity
of the Act in so far as it conferred on the Lieuten-
ant-Governor of the province power to appoint the
judges who should preside in such Courts. The
case, therefore, should perhaps be noted rather as
affirming that an Act of provincial legislation in re-
ference to the exercise of the prerogatives of the
Crown in relation to matters falling within the

"le. V. Horner (1876), 2 Steph. Dig. 450; 2 Cart. 317.

* Sir John Thompson strongly criticizes this passage in the re-
port above referred to (see note p. 513). Speaking of Reg. j.
Coote he says, that "there was no contention at the argument
and no decision by the court as supposed by Mr. Justice Ramsay,
that the ' power to nominate magistrates to sit in such courts is
within the power of the local executives.' " This criticism is
hard to appreciate ; it seems clear that the objection to the juris-
diction of the Fire Marshal's Court would include the question
as to the validity of the appointment of its presiding officer. Sir
John Thompson's criticism of the passage in Mr. Justice Ramsay's
judgment relating to the creation of new courts of criminal juris-
diction seems equally unsatisfactory. R. v. Coote, it is submitted,
does decide just what Ramsay, J., said it decided. Against the
argument of Sir John Thompson, Minister of Justice, in 1889, may
be cited the judgment of Mr. Justice Thompson in Crowe v. Mo-
Curdy, 18 N. S. 301 (1885), noted post, p. 528.

"Ganong v. Bayley (1877), 1 P. & B. 324.

THE ADMINISTRATION OF JUSTICE. 515

legislative competence of such legislature, is a
proper exercise of its legislative power.^

Ontario: — The power of the provincial legisla-
ture and the provincial executive in reference to
the appointment of justices of the peace and police
magistrates to administer justice in criminal cases
has been often upheld.* As remarked by Armour,
C.J., *^ the appointment of justices of the peace is
a primary requisite to the administration of jus-
tice. ' " The same view prevails in other provinces'*
and may be said to represent the view taken in all
the provinces.

The complete jurisdiction of the Ontario as-
sembly over the Division Courts of that province,
including the power to appoint the presiding offi-
cers, has been affirmed by the Court of Queen's
Bench."' County Court judges in that province are
appointed by the Dominion government. Division
Courts existed in the various counties prior to Con-
federation, and had always been presided over by
the judge of the County Court of the particular

» The opinions of Chief Justice Allen and Mr. Justice Duff, who
dissented from the judgment of the majority of the court, are
placed upon the ground that the exercise of this prerogative- is,
by the British North America Act, vested exclusively in the
Governor-General as Her Majesty's only representative in Canada;
a view now clearly untenable. See ante, p. 359.

*R. V. Reno (1868), 4 P. R. (Ont.) 281 (Draper, C.J.) ; R. v.
Bennett (1882), 1 O. R. 445 (Q.B.) ; Richardson v. Ransom (1886),
10 Ont. R. 387 (Wilson, C.J.); R. v. Bush (1888), 15 O. R. 398
(Q.B.)

" In R. V. Bush, supra.

•Ex p. Williamson (1884), 24 N. B. 64; Ex p. Perkins, ib. 66;
Ex p. Porter (1889), 28 N. B. 587; Ex p. Flanagan (1899), 34 N. B.
577. In the New Brunswick cases (except Ex p. Williamson) no
question was raised as to the provincial power ; the question was
as to the power of the Dominion parliament to give them juris-
diction to hear cases under the Canada Temperance Act, as to
which see post p. 534. See also Gower v. Joyner, 2 N. W. Terr.
Rep. 43.

'Wilson V. McOuire (1883), 2 Ont. R. 118.

516 CANADIAN constitution: self-government.

county. By the impugned Act it was provided, in
effect, that two or more counties might be grouped
together for the purpose of facilitating the conduct
of business in the Division Courts of the grouped
counties, and that the judges of the County Courts
of those counties might arrange for taking the work
in rotation throughout the entire group. This Act
was upheld by the Court.^

The establishment of a Mining Eecorder's Court
for the settlement of mining disputes was held to
be clearly within provincial competence.^ It may
be here noted that such tribunals have always been
a marked feature of provincial legislation in British
Columbia ; ^^ and the same is true as to * * Water
Eights ^' litigation.^

Nova Scotia : — The power of the provincial legis-
lature to appoint Stipendiary Magistrates with jur-
isdiction to try cases under federal law has been
recently affirmed without hesitation by the Full
Court after exhaustive argument to the contrary.-

British Columbia: — The establishment by pro-
vincial legislation of a system of Small Debts
Courts including the appointment of the judges of
those Courts by the provincial executive was upheld ;

®In Gibson v. McDonald, 7 Ont. R. 401, a somewhat similar
arrangement as to General Sessions of the Peace was held invalid,
but this case must be considered overruled by the decision of the
Supreme Court of Canada in Re County Courts of B. C, 21 S. C. R.
446. These cases, however, deal rather with the question of the
territorial jurisdiction of County Courts, discussed later; see post,
p. 525.

^Re Munro & Downey (1909), 19 Ont. L. R. 249; per Riddell, J.,
who gave no reasons, evidently deeming the matter too clear for
argument.

"See R. S. B. C. (1911), c. 157 and c. 165.

^7&. c. 239.

^R. V. Sweeney (1912), 45 N. S. 494.

THE ADMINISTRATION OF JUSTICE. 517

the only serious question raised being as to the
exercise of the power of appointment.^

Miscellaneous Cases: — The following cases, re-
lating to the assignment of certain classes of liti-
gation to particular judicial officers of the provin-
cial Courts, may also be noted here as affirming the
power to constitute and organize judicial tribunals.
The trial of controverted municipal elections in On-
tario by the Master in Chambers under the author-
ity of a provincial Act has been upheld;* and in
Quebec a provincial Act limiting the right of appeal
in such cases was held valid. ^ Similarly, Armour,
C.J., held that an Act of the Ontario legislature
assigning winding-up proceedings (in the case of
provincial companies) to the Master in Ordinary,
was a proper exercise of its power.^ And in more
recent cases those clauses of the Ontario Liquor
License Act, 1902, which provided for the trial of
petitions to question the regularity of the voting
under the Act as to ** local option '' and which des-
ignated the particular judge who should try them
were held intra viresJ

" Re Small Debts Courts, 5 B. C. 246. The cases on this part
of the subject have been complicated by the introduction of this
question as tor the prerogatives of the Crown in this connection.
See BurJc v. Tunstall, 2 B. C. 12. Where a provincial Act provides
for the appointment this question cannot arise; indeed, it is sub-
mitted, it should not arise at all. See ante, p. 360.
. *R. ex rel. McChiire v. Birkett (1891), 21 0. R. 162.

^ Clarke v. Jacques, Q. R. 9 Q. B. 238. In Valin v. Langlois,
5 App. Cas. 115; 49 L. J. P. C. 37, the Privy Council doubted
whether election trials fall within " the administration of justice "
and these cases, therefore, fall more properly perhaps under
"municipal institutions" (No. 8 of s. 92).

^Re Dom. Provident B. d 8. A»sn., 25 0. R. 619. The judg-
ment, however, is based more particularly upon the power of the
provinces under " the incorporation of companies with provincial
objects" (No. 11 of s. 92).

' R. V. Carlisle, 6 Ont L. R. 718 (C.A.) See also R. v. Walsh,
5 Ont. L. R. 527.

518 CANADIAN CONSTITUTION": SELF-GOVERNMENT.

Organization or Procedure? — It is often difficult
to draw a clear line between the constitution or
organization of a Court and procedure. In civil
cases no inconvenience arises as along both lines
provincial legislatures have full power ; but in crim-
inal cases the exclusive power to regulate procedure
is with the parliament of Canada,^ while the Courts
are organized under provincial law.

Difficulties have particularly arisen in reference
to trial by jury. The federal Criminal Code adopts
provincial laws as to the selection of jurors; as it
may validly do.^ In an early case^** in Ontario it
was held that trial with or without jury is a ques-
tion of procedure and is not a matter relating to
the organization of Courts ; while a jury empanelled
and sworn is part of the organization of the Court.^
On the broad ground that trial is matter of pro-
cedure, MacMahon, J., held void a provincial Act
empowering a police magistrate to try certain of-
fences under the Criminal Code;^ but this decision
is opposed to all the cases above noted and must
be taken to be overruled as to Ontario by the sub-
sequent decision of a Divisional Court upholding the
same Act in so far as it conferred like jurisdiction
upon the Court of General Sessions.^

*Per Ritchie, J., in R. v. Cox (1898), 31 N. S. 311.

»JK. V. O'Rourke, 32 U. C. C. P. 388; 1 O. R. 465; R. v. Provost,
29 L. C. Jur. 253. See also R. v. Plante, 7 Man. L. R. 537.

"J2. V. BraOshaw, 38 U. C. Q. B. 564; and see R. v. Plante^
ubi svrvra. '

^R. V. Plante, uM supra.

*R. V. Toland, 22 O. R. 505. See Re Boucher quoted in that

^R. V. Levinger, 22 O. R. 690: Armour, C.J., Street and Falcon-
bridge, JJ. It should be noted, however, that express reference
is made to the fact that the impugned Act did not assume to deal
with the procedure in the Court of General Sessions on such trial ;
while before a Police Magistrate there would be no jury possible.
On this ground only can R. v. Toland and R. v. Levinger be dis-
tinguished; but the question as to trial by jury does not appear
in R. V. Toland, the judgment being based upon the broad unten-
able ground indicated in the text.

THE ADMINISTRATION OF JUSTICE. 519

The Supreme Court of Nova Scotia has held
that while a provincial legislature may fix the num-
ber of grand jurors who shall compose the panel,, it
cannot fix the number necessary to find a true bill ;*
and this decision has been recently followed in On-
tario/ The former is matter of organization, the
latter of criminal procedure. The provision in the
Criminal Code that on appeals from summary con-
victions the appellate Court shall try the appeal
without a jury has been held intra vires as relating
to procedure and not to the organization of the
Court.«

The Constitution, Maintenance and Organiza-
tion OF Courts (Continued),

(h) DominioTP Powers,

As already intimated, the only limitations upon
the power of the provinces in relation to the consti-
tution, maintenance, and organization of Courts
are: (1) the power vested in the Dominion govern-
ment by section 96 to appoint the judges of the Su-
perior, County, and District Courts,"^ and (2) the
possible establishment by the parliament of Canada
of *^additional Courts for the better administration

*R. V. Cox (1898), 31 N. S. 311.

'R.Y. Walton (1906), 12 Ont. L. R. 1.

'R. V. Malloy (1900), 4 Can. Crim. Cas. 116. The judgment of
the late Judge Macdougall (County Court of York) contains a
very interesting historical statement as to the Courts of General
Sessions in Ontario. He arrived at the conclusion that a jury
was not an essential feature.

'The absence of logical method in thus divorcing legislative
and executive functions is not matter for discussion in this hook;
see ante, p. 314, and also the speech of Mr. C. Dunkin (afterwards
Mr. Justice Dunkin) on the Quebec Resolutions, Confed. Deb.,
p. 508, et seq. The idea of course was to avoid the expense and
inconvenience of two groups of courts, as under the United States
system, but nevertheless to give the Dominion some voice in
connection with the organization of the courts which would
necessarily have to enforce Dominion laws.

520 CANADIAN constitution: self-government.

,of the laws of Canada," under section 101. Of
these in their order.

To what extent does the appointing power lodged
with the Dominion government affect provincial
power under No. 14 of section 92f

In this connection the language of the Privy
Council in reference to the power of the Dominion
government to appoint the Lieutenant-Governors is
apposite :^

'^ Ther^ is no constitutional anomaly in an executive of-
ficer of the Crown receiving his appointment at the hands of
a governing body wJio have no power and no functions except
as representatives of the CrownJ'

The power to remote Superior Court judges is
limited by section 99 even more stringently than
the power to remove a Lieutenant-Governor;^ and
this limitation and the other limitations provided in
sections 97 and 98 as to the area of choice open to
the Dominion government are as much beyond
power of alteration by the parliament of Canada as
by a provincial legislature. It has been intimated
that the power to appoint County and District Court
judges carries with it the power to dismiss, and
provincial legislation upon the subject has been held
to be incompetent. ^° The validity of a commission
of enquiry issued by the Governor-General purport-
ing 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 Con-
federation by the parliament of (old) Canada for

^Liquidator's Case (1892), A. C. 437; 61 L. J. P. C. 75.
» Compare s. 59 and s. 99.
"i?e Squier, 46 U. €. Q. B. 474.

THE ADMINISTRATION OF JUSTICE. 521

trying complaints against County Conrt judges—
C. S. U. C. c. 14. The precise ground is not stated,
bnt 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 legis-
lation to Imperial enactment, as such ground would
equally affirm the invalidity of the original Act.
The decision therefore must be taken to be that
legislation in reference to the removal of those
judges mentioned in s. 96, other than the Superior
Court judges, must come from the Dominion parlia-
ment.

The question has been much canvassed as to the
validity of provincial Acts prescribing the qualifi-
cations to be possessed by the judges mentioned in
section 96, their place of residence, etc. Dominion
ministers of justice have refused to be bound by
such legislation,^ but there is no judicial decision on
the point. The question, it is conceived, is not be-
tween Dominion and provincial legislation; it is a
question of repugnancy to an Imperial statute, to
wit, the British North America Act. The argu-
ment for the Dominion has been that no further
limitations upon the range of choice than are im-
posed by that Act can be imposed by provincial
law. It would seem to follow that Dominion legis-
lation limiting the Governor-GreneraPs range of
choice would be equally repugnant and invalid.^
If and so far as such legislation is not repugnant
to the British North America Act, it would seem
to fall clearly within No. 14 of s. 92, as a matter
relating to the administration of justice in the pro-
vince or, more specifically, to the organization of
provincial Courts.

* See report of Sir John Thompson, Minister of Justice, in Can.
Sess. Papers, 1889, No. 47c.

* See the judgment of O'Connor, J., in Gibson v. McDonald,
7 Ont. R. 401.

522 CANADIAN constitution: self-government.

Fedeeal Coukts: their Constitution, Mainten-
ance, AND Organization.

The power conferred upon the parliament of
Canada by section 101 to constitute a general Court
of Appeal for Canada and also additional Courts
for the better administration of the laws of Canada
is coupled with a non obstante clause, ** notwith-
standing anything in this Act.'' The legislation
therefore of the parliament of Canada in this con-
nection is of paramount authority, and, to the ex-
tent to which the provincial judicial system is re-
pugnant to it, provincial arrangements must give
way.^

Under the power conferred by this section have
been established the Supreme Court of Canada,* the
Exchequer Court of Canada,^ Maritime Courts,® Ee-
vising Officers' Courts,^ the Eailway Committee of
the Privy Council,^ (so far as relates to its judicial
functions), the Court of the Minister or Deputy
Minister of Agriculture ^^ empowered to decide in
rem upon the status of a patent;"^ Dominion Police
Commissioners' Courts,^^ and there are doubtless

" See ante, p. 468.

* By 38 Vict. c. 11 (Dom.) It became a Court on January 11th,
1876. See now R. S. C. (1906), c. 139.

■By 38 Vict. c. 11 (Dom.) at the same time as the Supreme
Court of Canada. See now R. S. C. (1906), c. 140. Its Admiralty
jurisdiction is provided for in the Admiralty Act, c. 141.

" See The Picton, 4 S. C. R. 648. These no longer exist; the
Exchequer Court (in Admiralty) has taken their place. See
ante, p. 238 et seq.

' See Re North Perth, 21 Ont. R. 538. They no longer exist
under federal legislation, as the provincial voters' list^ prepared
under provincial law are now taken as the basis of the federal
franchise. See R. S. C. (1906), c. 6, sec. 6 et seq.

» See Re Can. Pac. Ry. & York, 27 Ont. R. 559 ; 25 Ont. App. R.
65 (1896-8). The Board of Railway Commissioners for Canada
has largely taken its place.

» See Re Bell Tel. Co., 7 O. R. 605.

^""Geller v. Loughrin (1911), 24 Ont. L. R. 18; R. v. Le Bell
(1910), 39 N. B. 469. And see next note.

THE ADMINISTRATION OF JUSTICE. 523

other instances in which judicial powers have been
conferred upon Dominion officials.^

Control by Superior Courts: — The jurisdiction
of these federal Courts is a matter to be discussed
later. The question here is merely as to their crea-
tion. But before passing to the subject of the juris-
diction of Canadian Courts, reference may be made
to the question as to the control, if any, which the
Superior Courts in the provinces may exercise by
way of prohibition to stay proceedings in federal
Courts of original jurisdiction when such jurisdic-
tion is exceeded, or by way of certiorari to quash
their proceedings when illegal.

In reference to Eevising Officers' Courts for the
settlement of voters ' lists for Dominion elections it
was held by the Chancery Division in Ontario that
the provincial Superior Courts could not interfere
by prohibition with the working of such federal
Courts ; and Chancellor Boyd went so far as to say :

" The Chancery Division has, in common with the other
divisions of the High Court of Justice, plenary jurisdiction
to deal with matters of prohibition which concern the admin-
istration of jiistice within Ontario as a provincial unit. This
inherent power is circumscribed by the requirements of the
province, and operates, I think, only as to laws enacted by
or in force in Ontario pertaining to matters of provincial co\g-
nizance under the British North America Act."^

Eeference is made to the peculiar nature of the
jurisdiction conferred upon the Courts in election

^See Reefer v. Todd (1885), 2 B. C. 249, upholding arrange-
ments made under Dominion Acts for the better preservation of
peace in the vicinity of public works. Wilson, C.J., in Ontario,
considered that such Acts might be grounded on the "peace,
order, and good government " clause of s. 91, and that under them
Dominion justices of the peace might properly be appointed: see
Richardson v. Ransom (1886), 10 O. R. 387.

'Re North Perth, 21 O. R. 538, overruling Re Simmons and
Dalton, 12 O. R. 505.

524 CANADIAN constitution: self-government.

matters,^ and in that particular class of cases inter-
ference by the ordinary Courts might be impliedly
excluded.* The language of Boyd, C, however,
(above quoted) would exclude jurisdiction to pro-
hibit any federal Court; contrary to the view ex-
pressed in other cases.

For example. Osier, J. A., was of opinion that
prohibition would lie to restrain the Minister of
Agriculture or his deputy from the exercise of the
judicial functions . conferred by the Dominion
Patent Act, if it were decided that the jurisdiction
had not been validly conferred or that it was being
exceeded.^ Similarly, the Supreme Court of Nova
Scotia prohibited proceedings authorized by Dom-
inion statute to be taken in the Vice-Admiralty
Court at Halifax (an Imperial Court) on the ground
that the Dominion parliament could not validly
confer jurisdiction on such a Court ; and although
this decision was reversed by the Supreme Court
of Canada, it was upon the ground that the juris-
diction had been validly conferred.® No intimation
that prohibition would not lie if the jurisdiction
were wanting appears in the judgments.

The correct view would appear to be that fed-
eral Courts of original jurisdiction created by sta-
tute of the parliament of Canada are in the same
position as inferior Courts created by a legislature
having full control over all matters or by a provin-
cial legislature in Canada legislating in regard to
matters within its competence. Unless by the sta-
tutes creating such inferior Courts the superintend-

" Valin V. Langlois, 5 App. Gas. 115; 49 L. J. P. C. 68; Theberge
V. Landry, 2 App. Gas. 102; 46 L. J. P. G. 1.

* See Re North Perth, supra, per Meredith, J., at p. 546; McLeod
V. Noble (1897), 28 Ont. R. 528, and cases there cited, particularly
the judgment of Fournier, J., in Ellis v. R., 22 S. G. R. 7.

^Re Bell Telephone Co,, 7 Ont. R. 605; 9 Ont. R. 339.

'Atty.-Gen. of Canada v. Flint, 16 S. G. R. 707; 3 R. & G. 453.

THE ADMINISTRATION OF JUSTICE. 525

ing jurisdiction of the Superior Courts is taken
away, such jurisdiction clearly exists to prevent
the unwarranted assumption of authority or the il-
legal exercise of authority by any inferior Court
over the person or property or civil rights of any
one. The power, for example, of the Superior
Courts of a province to quash convictions made by
federal magistrates under the Canada Temperance
Act has never been denied and is freely exercised
without question/

As intimated by the Privy Council,^ the distinc-
tion between creating a new Court and conferring
jurisdiction upon an existing Cqurt, provincial or
other, is ^* but a nominal, a verbal, and an unsub-
stantial distinction/' The subject now in hand is
closely connected, therefore, with the question of
the jurisdiction of Courts now to be dealt with.

II. The Jurisdiction of Canadian Courts: by
What Authority Conferred?

At the date of confederation there were in all
the provinces Courts modelled upon the principle
of the Superior Courts of law in England, whose
jurisdiction territorially was limited only by the
boundaries of the respective provinces in which
they were established. Under these, and as a rule
subordinate to them, were various other Courts^
whose jurisdiction was limited as to the class of
matters which might be entertained by them, with-
out territorial limitation,^^ or was subject to limita-
tions along both lines.^ It is almost unnecessary to
say there was no limitation of jurisdiction in any

^ See cases noted post, p. 534. As to Courts Martial and Naval
Courts, see ante, p. 209.

'Valin V. Langlois, 5 App. Cas. 115; 49 L. J. P. C. 68.
* See Ganong v. Bayley, 1 P. & B. at p. 326 ; 2 Cart, at p. 512.
" For example. County Courts in Upper Canada.
^For example. Division Courts in Upper Canada.

526 CANADIAN" constitution: self-goyernment.

provincial Court along any line identical with, or in
any sense analogous to, the line of division now ex-
isting between matters within the legislative com-
petence of the Dominion parliament and of the pro-
vincial legislative assemblies respectively.

However the jurisdiction of Courts may be lim-
ited territorially or otherwise, the law to be ap-
plied in any given case may not be law laid down
by the power to which they owe their creation.
The decision of any case which may come before
a Court of law involves the application of law to the
facts as they may be admitted or judicially deter-
mined. Out of every fact, or set of facts, there
arise various legal relations, and there can be no
conflict of law in reference to any given legal rela-
tion, for the law applicable to any stated facts is
presumably capable of definite exposition. It may
happen, therefore, that in a case arising in a Can-
adian Court, the law which governs the legal rela-
tions which arise out of the facts of the case may
be, not the law laid down in either Dominion or pro-
vincial statutes; not strictly speaking the law of
Canada at all; not even Imperial law; but the law
of a foreign country. In accordance with that com-
ity between nations, which is now recognized by the
tribunals of all civilized countries, those tribunals
do not, where the facts out of which the litigation
arose occurred in a foreign country, limit the en-
quiry to what is the law which would govern in
case those facts had occurred within its own terri-
tory. Indeed, in criminal matters, that is to say,
where a person is being prosecuted for an act com-
mitted abroad, British Courts have laid down the
rule that the trial of such a charge can only be had
in the country where the crime was committed. The
administration of international justice, if one may
use the expression, is secured in such a case by
handing over the alleged offender to the officers of

THE ADMINISTRATION OP JUSTICE. 527

the country in which the offence is alleged to have
been committed; and the jurisdiction of British
tribunals has been limited to a preliminary enquiry
as to the existence of a prima facie case. With
regard to civil matters, the tribunals of most civil-
ized states do not recogtiize any such local venue
for their trial. It is beyond the scope of this work
to enumerate the various conditions precedent to
jurisdiction laid down in the jurisprudence of the
different civilized states.^ But, in all such actions
as the Courts do entertain, they give effect to legal
rights and obligations which may arise out of trans-
actions occurring abroad; and it may happen,
therefore, that any modern tribunal may be called
upon, at times, to determine, and practically to ad-
minister, the law of a foreign country.

The jurisdiction of provincial Courts is neces-
sarily limited to the administration of justice ** in
the province.'' Subject to this limitation^ the pro-
vincial legislatures may confer such jurisdiction,
territorial and as to subject matter, civil or crim-
inal, as they may respectively deem proper, subject
always to the paramount authority of the parlia-
ment of Canada should that legislature choose to
legislate in reference to the judicial determination
of disputes relating to matters assigned to it by the
British North America Act.

"A court is a place where justice is judicially adminis-
tered : Coke on Littleton, 58a ; and the constitution of a court
therefore necessarily includes its jurisdiction; and the grant-
ing by the British North America Act to the provincial legis-
latures of the power to constitute courts of civil and crim-
inal jurisdiction necessarily included the power of giving

* Dicey, ** Conflict of Laws," deals with the subject.

'The application of the doctrine of exterritoriality to pro-
vincial legislation is a question of such moment as to call for
special notice in this Part, in addition to what was said in
Chap. VII., ante, upon the general subject.

528 CANADIAN constitution: self-goveknment.

jurisdiction to those courts, and impliedly included the power
of enlarging, altering, amending and diminishing the juris-
diction of those courts."*

" The constitution, maintenance and organization of pro-
vincial courts plainly includes the power to define the juris-
diction of such courts territorially as well as in other re-
spects/'^

" I think the legislature which had power to constitute
and organize the court had likewise power to change the con-
stitution of the court both as to subject matter of jurisdic-
tion and as to the area over which jurisdiction should be exer-
cised. . . . The expressions cited from the commissions
are to be taken ... as being merely descriptive of the
tribunal over which the judge is appointed to preside."^

Jurisdiction of Federal Courts: — The authority
of the parliament of Canada, on the other hand, is
limited by section 101 to the establishment of a
general Court of Appeal for Canada and of addi-
tional Courts for the better administration of the
laws of Canada. While, therefore, the appellate
jurisdiction of the Supreme Court of Canada, is,
or may be made, practically unlimited, both terrir
torially and as to the subject matter in litigation,^
its original jurisdiction is as an ^* additional '*
Court; and the jurisdiction of all tbese ** additional' '
Courts is limited as to subject matter. They may
only be established for the better administration of
the laws of Canada, that is to say, of federal law f
although of course, as already intimated,® it may

*R. V. Levinger (1892), 22 Ont. R. 690, per Armour, C.J.

'Re County Courts of BHtish Columbia (1892), 21 S. C. R. 446,
per Strong, J.

• Crowe V. McCurdy, 18 N. S. 301, per Thompson, J., afterwards
Sir John Thompson, Minister of Justice. See note (1) ante,
p. 514. And see Quay v. Blanchet, 5 Que. L. R. 43, at p. 51, per
Casault, J.

'UAss'n. de 8t. J.-B. v. Brault (1901), 31 S. C. R. 172.

•16.; see also Re References (1910), 43 S. C. R. at p. 575, per
Idington, J.

""Ante, p. 526.

THE ADMINISTRATION OF JUSTICE. 529

happen that the law to be applied in determining
a case in a Dominion Court is the law laid down in
provincial enactment. The jurisdiction of a federal
court may or may not be territorially limited/**

The original jurisdiction of the Supreme Court
in habeas corpus has been from the beginning lim-
ited to an enquiry into the cause of commitment
*^ in any criminal case under an Act of the parlia-
ment of Canada ' ^ ; a form of expression narrower
than that of section 101, ^^ the laws of Canada/'
There is no authoritative pronouncement that the
latter expression covers more than the laws en-
acted by the parliament of Canada •/ but having re-
gard to section 129 the better view would appear to
be that it includes all subjects within federal juris-
diction and that it is in principle immaterial
whether there has or has not been post-confedera-
tion legislation by the parliament of Canada in re-
gard to them. The whole body of laws, common
law as well as statutory enactments, was continued
by section 129 but with a clear line of division
drawn through it by that section. Any repeal or
amendment of a pre-confederation law, common
law or statutory law, can now be enacted by that
legislature only which, if the law which it is de-
sired to repeal or amend were non-existent, could
now enact it." It seems proper therefore to con-
sider the laws of Canada, as distinguished from
provincial law, as the whole body of law within

" The Picton, 4 S. C. R. 648, affirming the validity of an Act
establishing a Maritime Court for Ontario only.

^The language of Mr. Justice Idington in Re References, iZ
S. C. R. at p. 575, points to the narrower construction: "What are
the laws of Canada? Is it not obvious that they are the laws
enacted by the parliament of Canada?"

='Do6ie V. Temp. Board, 7 App. Cas. 136; 51 L. J. P. C. 26;
Local Prohibition Case (1896), A. C. 343; 65 L. J. P. C. 26: see
extract ante, p. 432.

CAN. CON. — 34

530 CANADIAN CONSTITUTION : SELF-GOVERNMENT.

federal jurisdiction ; and to so interpret the phrase
in section 101.

Eeferring again to the original jurisdiction in
habeas corpus of the Supreme Court of Canada : ^
the codification of the criminal law of Canada has
had the effect of enormously increasing that juris-
diction. Prior to the Criminal Code of 1,892 it was
held that there was no jurisdiction in a murder
case as the crime of murder was a common law
crime only,* Now, of course, under the Criminal
Code it is a crime ^ ^ under an Act of the parliament
of Canada '*; and the same- remark applies to a
multitude of crimes now covered by the Code.
That code, however, does not purport to be abso-
lutely exhaustive. The common law of England on
the subject of crimes is to some extent untouched by
statute; and there are crimes made such by British
enactment and, as part of the law of England, intro-
duced into Ontario, British Columbia, and Mani-
toba, which the Criminal Code of Canada does not
^ cover.*^ It has been recently held ^ that offences
covered in this way by British statutes only are
not offences ^^ under any Act of the parliament
of Canada '' within the meaning of the section
of the Supreme Court Act which confers an
original habeas corpus jurisdiction; and an ap-
plication for the writ with a view to an enquiry
into the validity of a commitment in British Colum-
bia on a charge of house-breaking was refused,
that offence being an offence under an old British
Act which had become part of the law of British
Columbia under the English Law Introduction Or-
dinance of that colony passed in 1858, and not being

' The appellate jurisdiction in habeas corpus is a matter to be
dealt with later; see post, p. 547.
*Re Sproule, 12 S. C. R. 140.

^''See sees. 10, 11, and 12; R. S. C. (1906), c. 146.
'Re Dean (1913), 48 S. C. R. 235 (Duff, J.)

THE ADMINISTRATION OF JUSTICE. 531

covered by any express section of the Criminal
Code of Canada other than the saving clause above
quoted :

" The jurisdiction extends only, I think, to those cases
in which the ^ commitment ' has followed upon a charge of a
criminal offence which is a criminal offence by virtue of some
statutory enactment of the parliament of Canada; it does
not, in my opinion, extend to cases in which the commitment
is for an offence which was an offence at common law or
under a statute which was passed prior to Confederation and
is still in force."

The Dominion parliament may confer jurisdiction
upon a provincial tribunal; and, conversely, a pro-
vincial legislature may confer jurisdiction upon a
federal Court sitting in the province.

The parliament of Canada may give jurisdiction
to a provincial Court, whether superior or inferior,
or to a provincial judicial oJBficer to perform judi-
cial functions in the adjudication of matters over
which the parliament of Canada has exclusive jur-
isdiction ; and no provincial legislation is necessary
in order to enable effect to be given to such federal
enactments.^

The decision of the Supreme Court of Canada
to the above effect was avowedly based upon the
principle of Valin v. Langlois ^ decided by the Privy
Council, and may be taken therefore as affirming
with final authority that the Dominion parliament
legislating upon matters falling within its compe-
tence, may confer jurisdiction upon a provincial

^Re Vancini (1904), 34 S. C. R. 621. Sedgewick, J., delivered
the unanimous judgment of the court. The Supreme Court of
New Brunswick had rested its judgment upon the validity of a
provincial Act implementing, and thus in effect enacting, the pro-
visions of the federal Act, which in itself the Court considered
ultra fires.

'5 App. Cas. 115; 49 L. J. P. C. 37. See infra, p. 533.

532 CANADIAN constitution: self-government.

Court ; and it seems equally clear that the converse
proposition is sound law. Indeed, the law may be
stated still more broadly, that any government may
take advantage of the actual existence within its
territorial limits of an organized Court of law to
impose on the judges and administrative staff of
such Court duties in relation to matters within its
sphere of authority other than those imposed upon
them by the power which created the Court, and
whether this action is to be considered as the crea-
tion of a new Court with the machinery of the old,
or as the conferring of a new jurisdiction upon the
old, was considered by the Privy Council a matter
of indifference. For example, it was held by the
Supreme Court of Canada that it was competent
for the Dominion parliament to confer upon the
Vice-Admiralty Court, existing in Nova Scotia un-
der Imperial authority, jurisdiction to entertain
proceedings for enforcing payment of penalties for
breaches of the Inland Eevenue Act.^ In the
opinion of some at least of the judges of the Su-
preme Court a judge of a Vice-Admiralty Court
might decline to take upon himself the burden of
such cases, but the jurisdiction so to do they held
to be beyond question. If the Imperial parliament,
in the exercise of its legislative supremacy, were
expressly to prohibit such Court from entertaining
other than matters arising under Imperial legisla-
tion, such prohibition would be operative; but, in
the absence of such prohibition, it is difficult to see
how the judges and staff of the Court could, as
Canadian citizens, lawfully decline to perform the
duties imposed upon them by Canadian law; for

* Atty.-Qenl. {Can.) v. Flint, 16 S. C. R. 707; followed in R. v.
Annie Allen, 5 Exch. Ct. R. 144, in which the Imperial Colonial
Courts of Admiralty Act, 1890, was held not to have disturbed the
jurisdiction conferred by the Dominion Inland Revenue Act.

THE ADMINISTRATION OF JUSTICE. 533

"Judges as citizens are bound to perform all the duties
which are imposed upon them by either the Dominion or
local legislature/'®

And, again, it has been held that the Dominion
parliament can confer upon Vice-Admiralty Courts
jurisdiction in any matter relating to navigation
and shipping within the territorial limits of the
Dominion, and that any such Act is to be given full
effect so far as its provisions are not repugnant to
Imperial legislation.®^

The right of the Dominion parliament to adopt
for its purposes a provincial Court and for such
purposes to increase the jurisdiction (for example,
as to amount) of such provincial Court has been af-
firmed by the Supreme Court of Nova Scotia as
clearly established doctrine.^"

As instances of jurisdiction conferred upon pro-
vincial Courts or provincial officers by Dominion
Acts the following may be referred to:

The Act empowering the provincial Courts to
try Dominion controverted election petitions was
held intra vires by the Privy Council :^

" There is therefore nothing here to raise a doubt about
the power of the Dominion parliament to impose new duties
upon the existing provincial courts, 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 pro-
vinces.^' i

The validity of the Dominion Act which pro-
vided for utilizing the machinery of the provincial

^ Per Dorion, C.J., in Bruneau v. Masque, 23 L. C. Jur. 60;
quoted with approval by Meredith, C.J., in Valin v. Lanfflais,
5 Q. L. R. at p. 16.

»« The Farewell, 7 Q. L. R. 380; 2 Cart. 378.
. ^"Atty.^enl. of Canada v. Sam Chak (1909), 44 N. S. 19.

* Valin V. Langlois, supra, aflBrming 3 S. C. R. 1. Ritchie, C.J.,
in his judgment, gives several instances of such legislation.

534 CANADIAN constitution: self-government.

Courts for the taking of evidence for use before
foreign tribunals, has been affirmed by the Courts
of both Ontario and Quebec.^

The power of the Dominion parliament to con-
fer jurisdiction upon provincial Courts and judicial
officers to try cases under the Canada Temperance
Acts has been often affirmed,^ as well as to try
cases under the Criminal Code.*

That provincial legislatures may impose duties
upon County Court judges to be performed beyond
the limits named in their commissions is clear,^ but
as County Courts are Provincial Courts these cases
cannot strictly be held to sustain the converse pro-
position that provincial legislation may confer

= i2e Wetherell d Jones (1884), 4 Ont. R. 713; Ex p. Smith, 16
L. C. Jur. 140; 2 Cart. 330. But see Re Alberta, dc, Ry. Co. (1910),
20 Man. L. R. 697, referred to, ante, p. 262.

^Ex p. Williamson, 24 N. B. 64 (Parish Courts) ; Ex p. Perkins,
24 N. B. 66 (Police Magistrates) ; Ex p. Porter, 28 N. B. 587
(Magistrates); R. v. Wipper (1901), 34 N. S. 202 (provincial
J. P.); R. V. Kennedy, 35 N. S. 266; R. v. Bennett, 1 O. R. 445;
R. V. Bush 15 0. R. 398. See also Gower v. Joyner, 2 N. W. Terr.
R. 43. The New Brunswick cases above cited were, however, all
overruled in Ex p. Flanagan (1899), 34 N. B. 577 (see also Ex p.
Wright, i&. 127) ; hut this decision was avowedly based upon
what appears to be a mistaken view of the meaning of a passage
in the judgment of Strong, J., in Re County Courts of B. C, 21
S. C. R. at p. 453: — " The jurisdiction of parliament to legislate as
regards the jurisdiction of provincial courts is, I consider, ex-
cluded by s.-s. 14 of s. 92 before referred to, inasmuch as the con-
stitution, maintenance and organization of provincial courts
plainly includes the power to define the jurisdiction of such
courts territorially as well as in other respects." This passage
is properly explained in R. v. Wipper (supra) ; that Strong, J.,
had not in view s. 101 at all, and did not intend to impugn Atty.-
Gen. V. Flint, Valin v. Langlois, and that class of cases. He was
speaking of the general jurisdiction of the provincial courts. The
decision of the Supreme Court of Canada in Re Vancini, 34 S. C. R.
621, settles the matter. It has been followed in New Brunswick:
R. V. Le Bell (1910), 39 N. B. 469.

*R. V. Vancini, supra.

^Re Wilson v. McGuire, 2 O. R. 118, cited ante, p. 515; Crowe
V. McCurdy, 18 N. S. 301, cited ante, p. 528; R. v. Brown (1907),
41 N. S. 293.

THE ADMINISTRATION OF JUSTICE. 535

jurisdiction on Federal Courts. But the principle of
the cases cited above is equally applicable to up-
hold such provincial legislation in relation to sub-
jects within its competence.

May federal legislation take away or curtail the
jurisdiction of provincial Courts to try cases involv-
ing federal law?

The power of the parliament of Canada to
create Courts of original jurisdiction under section
101 of the British North America Act is limited to
the establishment of additional Courts for the bet-
ter administration of the laws of Canada. The
word ** additional '' has been construed by one
learned judge at least to mean ** in addition to the
ordinary provincial Courts '' and not '' in addition
to the general Court of Appeal '^ referred to in the
earlier part of the section,^ but there is no authori-
tative decision upon the point. It is a question of
great importance, for if the construction suggested
is correct, it is open to argument that interference
to the extent of diminishing the jurisdiction of the
ordinary provincial Courts is impliedly forbidden;
an argument which would not be open if the sec-
tion is to be read as providing in the first place for
a general Court of Appeal for Canada and then in
addition thereto for the establishment, if thought
advisable, of Courts for the better administration
of the laws of Canada. The non-ohstante clause
affords no assistance here, nor, it is conceived,
does the word ** better.'' In the absence of auth-
ority it would be rash to express a decided view.
There are dicta both ways. It may be argued that
apart from section 101 the power to constitute
Courts having exclusive jurisdiction, for example,
in patent cases, divorce cases, cases regarding navi-

« Per Idington, J., in Re References, 43 S. C. R. at p. 569.

536 CANADIAN constitution: self-government.

gation and shipping, etc., is with the parliament
of Canada nnder the enumerated classes of section
91, if it choose to exercise the power; in which
view section 101, in spite of the non-ohstante,
might be held to be a clause of limitation, cutting
down this wide implied or necessarily incidental
power wrapped up in some at least of the class-
enumerations. A solution of the problem involves
consideration of many of the principles discussed
in earlier chapters; amongst others, the principle
of federal paramountcy in regard to all matters
really within federal jurisdiction,^ and the still
larger principle that the sanction of a law rests in
executive action, which would properly include the
enforcement of the law through judicial tribunals,®
a principle which should not lightly be taken to be
departed from even under a federal system.

In Valin v. Langlois in the Supreme Court of
Canada^ Mr. Justice Taschereau refers to the argu-
ment advanced that *' the Dominion parliament
cannot in any way increase or decrease, give or
take away from, or in any manner interfere with
the jurisdiction of the provincial Courts '' as a
radically and entirely false and erroneous interpre-
tation of section 92, No. 14, and altogether opposed
to the other parts as well as to the spirit of the
British North America Act. Speaking of the crim-
inal law he says:

" Cannot parliament in virtue of section 101 of the Act
create new courts of criminal jurisdiction and enact that all
crimes, all offences, shall be tried exclusively before these
new courts? I take this to be beyond controversy.'^

And later on the judgment proceeds:

' See ante, p. 468.
* See ante, p. 359.
>* 3 S. C. R. at p. 74 et seq.

THE ADMINISTRATION OF JUSTICE. 537

" I also think it clear that parliament can say, for in-
stance, that all judicial proceedings on promissory notes and
bills of exchange shall be taken before the Exchequer Court
or before any other Federal Court. This would be certainly
interfering with the jurisdiction of the provincial courts.
But I hold it has the power to do so quoad all matters within
its authority."

\ In an earlier case in Ontario it had been held
that a provision in the Insolvent Act of 1869 that
claims by and against assignees in insolvency
might be brought before a County Court judge in
a summary way upon petition and not by any suit,
attachment, opposition, seizure, or other proceed-
ings whatever, was within federal competence; but
Wilson, C.J., in his judgment intimated his opinion
that an enactment by the parliament of Canada
that some of the matters covered by the class-
enumerations of section 91 — for example he men-
tions bills of exchange and promissory notes —
should be litigated in a particular Court and not in
any other Court would be ultra vires ;^^ a view dia-
metrically opposed to that of Taschereau, J., above
quoted.

No question, of course, can arise as to the power
to confer concurrent jurisdiction.^ To that extent
the scope and policy of section 101 is obvious. The
moot point is as to the right to confer an exclusive
jurisdiction; and upon that point, it is conceived,
the view of Mr. Justice Taschereauds more in con-
sonance with the scheme and policy of the Act than
is that of Chief Justice Wilson.

In this view, the Dominion parliament may take
from provincial Courts the cognizance of those
matters within Dominion competence which it may

^"CromMe v. Jackson (1874), 34 U. C. Q. B. 575; 1 Cart. 685;
and see Pineo v. Gavaza, 6 R. & G. 489.

* See R. V. Farwell, 22 S. C. R. 553; Brantford v. Grand Valley
By. (1913), 15 D. L. R. 88; Shipmany. Phin, 32 Ont. L. R. 329.

538 CANADIANT CONSTITUTION: SELF-GOVERNMENT.

think fit to assign to Courts of its own creation, or
it may take them from one provincial Conrt and as-
sign them to another. The converse proposition,
however, is not sustainable; at least not to its full
extent. As the jurisdiction of Dominion Courts, so
far as it is conferred by the parliament of Canada,
is limited to matters within the legislative compe-
tence of that parliament, provincial legislatures are
powerless to abridge it. But to the extent to which
provincial legislatures might choose to confer a
special jurisdiction upon a Dominion Court, it may
again abridge that jurisdiction. On the other hand,
the right of appeal to the Supreme Court of Can-
ada conferred by the parliament of Canada under
section 101 of the British North America Act
covers litigation over all matters, provincial as well
as federal, and cannot be limited or abridged by
provincial legislation.^ As put by Lord Eobertson :

" The argument necessarily goes so far as to justify the
wholesale exclusion of appeals in suits relating to matters
within the region of provincial legislation. As this region
covers the larger part of the common subjects of litigation,
the result would be the virtual defeat of the main purposes
of the Court of Appeal."^

Appellate Jurisdiction: — The right of appeal
from one Court to another has been described by
the highest authority as a substantive right, the cre-
ation of which requires legislative authority. It is

" in effect a limitation of the jurisdiction of one court and
an extension of the jurisdiction of another ;''*

a remark which, of course, would equally apply in

^ Crown Grain Co. v. Day (1908), A. C. 504; 78 L. J. P. C. 19;
Glarkson v. Ryan, 17 S. C. R. 251 ; L'A^'n de St. J.-B. v. Brault,
31 S. C. R. 172; Halifax v. McLaughlin Carriage Co., 39 S. C. R.
174.

' Crown Grain Co. v. Day, supra.

^Atty.-Gen. v. miem (1864), 10 H. L. Cas. 704; 33 L. J. Ex. 212.

THE ADMINISTRATION OF JUSTICE. / 539

the case of the creation of a new appellate tribunal,
with a newly created appellate jurisdiction. As
already intimated,^ the policy of the British North
America Act was that justice should be adminis-
tered throughout Canada in the main through the
medium of Courts constituted, maintained, and or-
ganized under provincial legislation. It has been
authoritatively affirmed that this provincial power
includes the determination of the jurisdiction of
such provincial Courts not only in regard to sub-
ject matters within provincial competence but in
regard to all matters which may come into litiga-
tion.® No serious question has been raised as to
the right of a provincial legislature to formulate a
complete scheme for the administration of justice
in the province, including the creation of new ap-
pellate tribunals, with a newly created appellate
jurisdiction;^ thus diminishing, as above intimated,
the jurisdiction of the Court from which an appeal
is given, by taking away the element of finality.
The right of appeal, thus created, is in no sense an
alteration of the right or rights concerning which
litigation has arisen; it is an alteration of a right
connected with the administration of justice; and
such rights are subject to the law laid down in pro-
vincial enactment, subject always to the operation
of federal law validly enacted in relation to mat-
ters within the ambit of federal authority.^

Criminal Appeals: — The administration of
criminal justice has, however, been viewed in a
somewhat different light. The assignment to the
federal parliament of exclusive authority over
'^ the criminal law . . . including the procedure

''Ante, p. 510.
® See ante, p. 527 et seq.
' See ante, p. 512.
' See ante, pp. 468, 536.

540 CANADIAN constitution: self-government.

in criminal matters '^ has been held to preclude
provincial legislatures from giving a right of ap-
peal in particular instances; so that the creation
of an appellate tribunal with a general criminal
jurisdiction is futile unless the federal parliament
confers the right of appeal in the particular in-
stance. As a matter of fact, the Criminal Code
covers negatively as well as affirmatively almost
entirely the whole field of criminal appeals ; and so
far as such provisions extend they are of para-
mount authority. But the superintending juris-
diction exercisable by the Superior Courts over all
inferior Courts, for example, in the quashing of
convictions by magistrates and the release upon
habeas corpus of persons imprisoned upon illegal
convictions is a matter more or less left open; and
question has been raised as to the validity of pro-
vincial legislation creating a further right of ap-
peal. The following cases may be noted :

The Court of Appeal for Ontario held unani-
mously in 1886 that the provincial Act regarding
that Court upon its true interpretation gave no
right of appeal from a judgment of the High Court
quashing a conviction under the federal Canada
Temperance Act and the federal Summary Convic-
tions Act then in force.® Mr. Justice Osier went
further, however ; he referred to the provincial Act
as giving the Court of Appeal an appellate juris-
diction in both civil and criminal cases but as only
giving a right of appeal in civil cases. Of this
right in criminal cases he says:

" We must look elsewhere for the legislation which creates
and regulates the right of appeal in such cases. It cannot,
of course, be found in the statutes of Ontario. The ' judg-
ments of the Superior Courts ' mentioned in sec. 18 are un-
questionably limited to judgments in causes or matters over
which alone the provincial legislature has jurisdiction;"

• R, V. Eli, 13 Ont. App. R. 526.

THE ADMINISTRATION" OF JUSTICE. 541

(meaning, of course, civil matters as distinguished
from criminal matters) ;^^ and later on he speaks of
the judgment of Moss, C.J.O., in an earlier case,^
as wholly adverse to the view that an appeal in a
criminal case could be created or regulated by pro-
vincial legislation.

In the following year, 1887, the Divisional Court
of the Common Pleas Division of the High Court
for Ontario adopted the same view, holding that
provincial legislation could not give a right of ap-
peal in a criminal case ^* whether such right of ap-
peal be or be not considered a new right or only
procedure. '* "

Much to the same effect are certain decisions of
the Supreme Court of Nova Scotia. Under the
Canada Temperance Act an appeal lay in certain
cases to the County Court, but no further appeal
was provided for. Under provincial legislation,
however, there was a wide right of appeal from
the County Court to the Supreme Court of the pro-
vince. The Full Court held that no appeal lay in
cases under the Canada Temperance Act.^ Thomp-
son, J., said:

" During the argument I was strongly inclined to think
that an appeal to this court would lie in consequence of the
constitution and practice of the County Courts being such
that every suitor where the amount in controversy exceeds a
certain sum had the right of appeal. It would be carrying
that view too far, however, to apply it to cases which go to

^» See post, p. 550.

^Re Boucher, 4 Ont. App. R. 191; in whiph the view was ex-
pressed that a provision allowing a single judge to sit as and for
the court was a procedure provision and therefore to be inter-
preted as applying only to civil matters.

'R. V. McAuley, 14 Ont. R. 643; doubt was expressed as to the
right of a single judge to sit as and for the court in criminal cases.
Thereafter applications to quash convictions in criminal cases
were always taken in Ontario before the Full Court.

^McDonald v. McCuish (1883), 17 N. S. 1.

542 CANADIAN constitution: self-government.

the County Courts by way of appeal under enactments creat-
ing statutory liabilities and giving an appeal to the court,
but conferring no further right of appeal/'

This judgment does not, perhaps, decide more
than that the general right of appeal from the
County Courts given by provincial legislation
should not be construed as applying to such cases
as that before the Court. In 1886 the decision was
followed by the same Court upon the ground, as
stated by the reporter, '^ that no appeal to this
court was provided in the Act creating the offence,
and no appeal could be taken under the local Act
providing generally for appeals from the County
Court;''* and the same view is open as to that de-
cision. But in 1888 the question came again before
the court.'^ A provincial Act gave certain jurisdic-
tion to a County Court judge to quash convictions
upon certiorari. A conviction under the Canada
Temperance Act had been quashed by a County
Court judge upon certiorari under the provincial
statute; and an appeal was taken to the Supreme
Court of the province. The full Court held that
the whole proceedings were coram non judice; that
neither Court had jurisdiction in the premises.
Townshend, J., for the Court said:

" The local legislature has no power to confer jurisdiction
or to legislate at all in reference to proceedings under the
Canada Temperance Act. The authority conferred by the
legislature on the County Courts to grant writs of certiorari
must of necessity be limited to matters over which it has
powet to legislate, . . . The only right of appeal from the
County Court to this Court which the local legislature could
give would be in those matters within its competency to deal
with and as already pointed out this particular statute is
not one of them. An appeal can only be entertained where it

'R. V. Wolfe (1886), 19 N. S. 24.
^R. V. De Coste (1888), 21 N. S. 216.

THE ADMINISTRATION OF JUSTICE. 543

is expressly given by statutory authority, and none has been
authorized in such a case as the present."

The same view has been taken in British Colum-
bia. The full Court of that province refused to en-
tertain an appeal from the decision of a single
judge quashing a conviction under the Criminal
Code.® And in a later case the Court of Appeal
held that it had no jurisdiction to hear an appeal
from an order made by a judge of the Supreme
Court of British Columbia discharging upon habeas
corpus a person who had been committed for ex-
tradition. Such a proceeding was, in the opinion
of the Court, in a criminal matter, in regard to
which the provincial legislature could confer no
right of appeal.^ Macdonald, C.J., said:

" Now while there is no provision in our Court of Appeal
Act that there should be no appeal in any criminal cause or
matter, it is not necessary, in my opinion, that there should
be such in order to exclude such an appeal, because the pro-
vince has no jurisdiction in such a matter at all. Any Act
of the province giving the right of appeal in a criminal
matter in the sense in which jurisdiction is given to the Do-
minion in such matters would be ultra vires of the province."

And he referred to the language of Strong, C.J.,
in Re County Courts of British Columbia,^ quoted
on a previous page of this book^ as relating to ter-
ritorial jurisdiction merely or, at least, as other-
wise obiter and not ** intended to be taken literally
and applied to a case like the present.'' The con-
trol of procedure in criminal matters assigned to
the federal parliament covered in his opinion the
right of appeal:

" The parliament of Canada was given exclusive jurisdic-
tion over criminal law and over ' procedure ' in criminal cases,

'R. V. Carroll (1909), 14 B. C. 116.
'Re Tiderington (1912), 17 B. C. 81.
*24 S. C. R. 453 (1892); see ante, p. 528.

544 CANADIAN constitution: self-government.

not in one court alone, but in all the courts of criminal juris-
diction. ^ Procedure/ while it includes practice, is a much
more comprehensive term. . . . That the province has the
right to constitute a court or courts for the hearing of crim-
inal causes or matters is one thing ; that it may say that the
Crown or an accused person shall have the right to go from
court to court is another."

If the various authorities above discussed are
to be taken, as they probably should be taken, as
based upon the view that '^ procedure in criminal
matters '^ covers provision for the right of appeal,
the position is one of little difficulty. If, on the
other hand, the right of appeal is essentially a
question of jurisdiction, it seems questionable that
provincial legislation, always, of course, in the ab-
sence of supervening federal legislation, should be
held incompetent.

Divorce Jurisdiction in British Columbia: — A
somewhat curious position has arisen in British
Columbia with regard to appellate jurisdiction in
divorce. There is no legislation of the colony prior
to Confederation directly touching the matter, be-
yond the proclamation of Sir James Douglas in
1858 introducing English law as it existed at that
date into the colony so far as it was not from local
circumstances inapplicable. After Confederation it
was held that the English ^* Divorce and Matri-
monial Causes Act '' of 1857 was part of the law
of the province, and that the Supreme Court of
British Columbia, or one judge thereof sitting as
and for the Court, possessed the jurisdiction exer-
cisable in England by the special tribunal desig-
nated in the Act ; ^ and this view has recently been
upheld by the Privy Council.^^ In 1891, however,

^S. V. 8. (1877), 1 B. C. (pt 1) 25.

^'^ Watts V. Watts (1908), A. C. 573; 77 L. J. P. C. 121. See
ante, p. 296. *

• THE ADAIINISTRATION OF JUSTICE. 545

the full Court had held that no appeal lay to that
appellate tribunal from the decision of a single
judge in a divorce case ^ and that view was re-af-
firmed and followed in a decision of the full Court
in 1909.- It apparently follows that as the Supreme
Court of the province is not the Court of last re-
sort in the province within the meaning of the
Supreme Court Act,^ the only appeal from the
judgment of a single judge in divorce cases is an
appeal direct to the Privy Council — a most unsat-
isfactory state of affairs. The denial of the right
to appeal in what are clearly ^' civil matters " to
an appellant tribunal which under provincial legis-
lation has jurisdiction to review ^^ every judgment
order or decree made by the Supreme Court or a
judge thereof, ' ' * seems opposed to the principles
involved in the cases referred to on an earlier page
of this book; and can be supported only on the
peculiar nature of the jurisdiction in divorce, rest-
ing, as it does, on the English statute. The better
view would appear to be that, given a law creating
a right to divorce or judicial separation, the ad-
ministration of that law would be part of the ad-
ministration of justice in the province and would
prima facie fall to provincial Courts, constituted
under provincial legislation — subject always, of
course, to the power of the Dominion parliament to
constitute additional Courts, under s. 101, and to
regulate procedure in divorce cases, if so disposed.^

^ Scott V. Scott, 4 B. C. 316.

=* Brown v. Brown, 14 B. C. 142.

^See James Bay Ry. v. Armstrong (1909), A. C. 624; 79 L. J.
P. C. 11.

^ Court of Appeal Act, R. S. B. C. (1911), c. 51, s. 6.

^This view, expressed in the second edition of this book, is
referred to with approval by Martin, J., in Sheppard v. Sheppard
(1908), 13 B. C. at p. 519.

CAN. CON. — 35

546 CANADIAN constitution: self-government.

III. Procedure.

By section 91, No. 27, *' procedure in criminal
matters '^ is assigned exclusively to the parliament
of Canada as part of the criminal law; and, apart
from the questions which, as already intimated,^
sometimes arise as to whether a particular enact-
ment is one relating to procedure or to the consti-
tution (including jurisdiction)^ or organization of
the Court, no serious difficulty arises when once it
has been settled that the matter dealt with by pro-
cedure provisions comes within ^* the criminal
law '' assigned to the Dominion. Jurisdiction over
procedure in all such matters is with the parlia-
ment of Canada.

On the other hand, section 92, No. 14, assigns
to the provincial legislatures exclusive jurisdiction
over ^* procedure in civil matters '^ in the provin-
cial Courts. And, until recently, it could be stated
with confidence that the procedure for the enforce-
ment of provincial penal law enacted by a provin-
cial legislature under the authority of section 92,
No. 15, is procedure in a civil matter within No. 14
and as such within the exclusive competence of the
provinces. But the views expressed by some of the
judges in a late case before the Supreme Court of
Canada ^ tend to raise a doubt as to the correctness
of this proposition; and it is thought advisable
therefore, to discuss that case before attempting to
indicate the position as determined by the earlier
authorities in the different provinces. The exact
point was not before the Court, but it is open to
argument that it was really involved in the
opinions expressed. By the Supreme Court Act,*

"Ante pp. 518 and 538.

'' See ante, p. 527.

*Re MoNutt (1912) 47 S. C. R. 259.

»R. S. C. (1906), c. 139, sec. 39 (c).

THE ADMINISTRATION OF JUSTICE. 547

an appeal to that Court from provincial Courts is
permitted in *^ proceedings for or upon a writ of
habeas corpus . . not arising out of a criminal
charge/' The appellant had been convicted of
keeping liquor for sale contrary to the provisions
of a provincial Act and sentenced to imprisonment.
A judge of the Supreme Court of Nova Scotia on
an application for a writ of habeas corpus, instead
of granting the writ, made an order under a pro-
vincial xict entitled * ' Liberty of the Subject Act ' '
calling upon the gaoler to shew cause why the pri-
soner should not be discharged. Cause was shewn
and the discharge refused ; and this refusal was up-
held by the full Court. From the judgment of the
full Court an appeal was taken to the Supreme
Court of Canada. The appeal was unanimously
dismissed; but there was a difference of opinion
as to the proper ground for dismissal. The Chief
Justice (Sir Chas. Fitzpatrick) and Davies and
Anglin, JJ., were of the opinion that the proceed-
ings had arisen ** out of a criminal charge.'' Iding-
ton and Brodeur, JJ., held that they had not been
** for or upon a writ of habeas corpus/' expressing
no opinion otherwise. Duff, J., dissented upon
both points, but thought the appeal should be dis-
missed upon the merits. The ground taken by the
Chief Justice, Davies and Anglin, JJ., is the matter
of importance here. The Chief Justice placed his
opinion squarely upon the ground that the Supreme
Court Act intended to give a right of appeal only
** when the petitioner for the writ is detained in
custody on a process issued in a civil matter,"
which, in his opinion, the matter before the court
was not. He concludes thus:

" If the subject comes within the powers of the province
then the right to impose punishment by imprisonment to
enforce its provisions undoubtedly exists: Sec. 92 (15). Such

548 CANADIAN constitution: self-government.

legislation if enacted by the Imperial Government would be
denominated criminal and fall within the category of crim-
inal law ; and I fail to understand how the element of crimin-
ality disappears merely because the Act is competent to the
provincial legislature. At all events it cannot be said to be
in any aspect legislation creating or regulating a civil remedy
or process.'^

Mr. Justice Davies expressed the view that
where a provincial Act deals ^^ with public law and
order from a provincial standpoint and not with
private wrongs or civil rights/' a charge of break-
ing that law is a criminal charge within the mean-
ing of the Supreme Court Act:

I see, no reason for reading any limitation into the gen-
eral words of the exemption and to confine them either to
criminal charges at common law or under Dominion legisla-
tion. It seems to me that the same reasons for withdrawing
jurisdiction from this court in proceedings arising out of a
criminal charge under Dominion, temperance legislation must
apply to proceedings under provincial temperance legisla-
tion.^'

Mr. Justice Anglin speaks of the Privy Coun-
cil as having recognized by its decisions that pro-
vincial legislatures legislating upon provincial sub-
jects ^^ may include under the authority of section
92, No. 15, provisions of a criminal character "
without offending against section 91, No. 27, which
assigns '^ the criminal law '' to the parliament of
Canada ; and upon this branch of his judgment con-
cludes thus:

" The word ^ criminal ' is, I think, used in section 39 ,(c)
in contradistinction to the word ^ civil ' and connotes a pro-
ceeding which is not civil in its character. The proceeding
against the appellant was of this class."

The dissenting opinion of Mr. Justice Duff is
based mainly upon the view that in Canadian juris-

THE ADMINISTRATION OF JUSTICE. 549

prudence the word ^^ criminal '' is recognized as
not of proper application to provincial penal law,
and should be construed accordingly when used in
Canadian Acts of parliament. He refers to the
judgment of the Privy Council in the Lord's Day
Legislation Case '^^ as affirming that ' ' the criminal
law in its widest sense '^ is reserved to the Dom-
inion. In view of the express power conferred
upon the provinces by section 92, No. 15, to attach
the sanctions of fine, penalty, or imprisonment to
breaches of provincial law,

" It seems to be clear that consistently with the views thus
expressed by Lord Halsbury acts or omissions struck at by
such penal enactments cannot with strict propriety be de-
scribed as crimes nor can the proceedings taken with a view
to enforce the sanctions attached to them be properly des-
cribed as criminal proceedings./ Under a constitutional
system such as ours, that which the supreme legislative auth-
ority declares to be so is so in contemplation of law; and in
face of this declaration in the British North America Act,
construed as it has been construed in the passages quoted, it
cannot be said that in the contemplation of the law of Can-
ada an act which is an offence against a provincial statute is
for that reason alone a crime ; and no definition of the terms
' crime ' and ' criminal proceedings ' which fails to take this
circumstance into account can be considered adequate with
reference to the law of this country."^

The views expressed by the three judges as
above indicated, though of great weight, do not,
it is conceived, constitute a binding authority. If
applied to the two phrases of the British North
America Act, ** procedure in criminal matters '' on
the one hand and '' procedure in civil matters '' on

^'^ Atty.-Gen. of Ontario v. Hamilton Street Ry. (1903), A. C.
524; 72 L. J. P. C. 105.

^ Mr. Justice Duff adheres to this opinion in Quong Wing v. R.,
39 S. C. R. 459; but the other judges do not notice the point
though, as Mr. Justice Duff points out, it would have sufficed to
dispose of the appeal in that case.

550 CANADIAN constitution: self-government.

the other, they would not only overrule a long line
of provincial cases which affirm that ^* procedure
in civil matters " includes procedure for the en-
forcement of provincial penal law,^ but would also
establish a marked departure from the sound prin-
ciple that legislative power and executive action
should go hand in hand ; ^ that the power, in other
words, which provides the sanction should see to
its enforcement. Subject, therefore, to the doubt
created by the expression by eminent judges of the
opinions above indicated, it is proposed to treat
the earlier authorities as correct expositions of the
law.

^^ Matters/' — It should be noted that the word
^^ matters '' is used in both sections 91 and 92 in
two very different senses. It is used chiefly to de-
note subject matters for legislation; but in No. 27
of section 91 and in No. 14 of section 92 it has re-
ference to proceedings in Court. ^* Civil matters,^'
for example, is but another way of saying civil
actions, suits, or other judicial proceedings: while
'* criminal matters *' means simply criminal prose-
cutions.

Procedure in Criminal Matters: — What part of
penal law is covered by the class '' the criminal
law '' and what part falls within No. 15 of section
92, ^^ the imposition of punishment . . . for en-
forcing any law of the province, etc.," is a diffi-
cult question to answer, as will appear later. But
when once it is determined that a particular enact-
ment is within *^ the criminal law '' as that class-
enumeration is to be properly construed, then leg-
islation as to the procedure to be followed in judi-
cial proceedings instituted for its enforcement is

2 See post, p. 551 et seq.
^ See ante, p. 536.

THE ADMINISTRATION OF JUSTICE. 551

exclusively within Dominion competence. All fed-
eral penal legislation, that is to say, legislation im-
posing punishment as its sanction, is within this |
class, ^^ the criminal law,'' whether such legislation j
is to be found in the Criminal Code or in separate ■
enactment. For example, while the Canada Tem- i
perance Act passed by the parliament of Canada
has been determined to be, as a whole, based upon
the power conveyed by the opening clause of sec-
tion 91 rather than upon this class. No. 27, its
penal clauses are clearly part of the criminal law.
It has been so held in several cases under that Act,
provincial legislation as to procedure in such pro-
secutions being held ultra vires.*

Procedure to enforce provincial penal laws ^ —
That provincial legislatures have exclusive auth-
ority to regulate the procedure in prosecutions for
offences against provincial statutes is now recog- j
nized as the law in all the provinces.® The provi- ^
sions of Dominion statutes regulating appeals
from summary convictions do not apply to offences
against provincial law; the provincial enactments

*R. V. Prittie, 42 U. C. Q. B. 612; R. v. Lake, 43 U. C. Q. B. 515;
R. V. Eli, 13 0. A. R. 526 (appeals) ; McDonald v. McGuish (1883),
5 R. & G. 1 (appeals) ; R. v. Wolfe (1886), 7 R. & G. 24 (appeals) ;
R. V. De Coste (1888), 21 N. S. 216.

"What follows must be read subject to what was said, ante,
p. 546 et seq.

*Pope V. Griffith, 16 L. C. Jur. 169 (a proceeding under the
Quebec License Act) ; Ex parte Duncan, id., 188 (provincial Act
taking away the right to certiorari to remove proceedings under
Quebec License Act); Page v. Griffith, 17 L. C. Jur. 302; Gotd v.
Ghavreau, 7 Q. L. R. 258; R. v. Rol)ertson, 3 Man, L. R. 613 (pro-
ceedings under, provincial game laws) ; R. v. Wason, 17 O. A. R.
221; R. V. Ronan, 23 N. S. 421; R. v. Bittle, 21 O. R. 605 (com-
petency of witnesses) ; R. ex rel. Brown v. Simpson Co., 28 O. R.
231 (appeal by case stated); Lecours v, HurtuU»e, 2 Can. Crim.
Cas. 521 (appeals), R. v. Miller (1909), 19 Ont. L. R. 288 (habeas
corpus) ; R. v. McLeod, 4 Terr. L. R. 513; Cavanagh v. Mcllmoyle
(1901), 5 Terr. L. R. 235.

552 CANADIAN constitution: self-government.

alone govern/ A Dominion statute making the de-
fendant a competent witness upon the trial of such
cases has been held ultra vires.^ And proceedings
; by way of habeas corpus to question the legality of
I imprisonment upon conviction under a provincial
1 Act have lately been held to be proceedings in a
civil matter and therefore governed by the provin-
cial procedure law.^

It may well be that the views expressed by
some of the judges in Re McNutt as to the meaning
to be given to the word ^^ criminal,'' or '^ crime ''
in a Canadian statute^^ were not intended to have
nor do they have any bearing upon the question as
to the meaning to be given to the two phrases in
the British North America Act; *^ procedure in
criminal matters, ' ' , on the one hand, and ' ^ proce-
dure in civil matters " on the other. Those two
phrases are to be read together and the language
of section 91, No. 27, modified if necessary by the
language of section 92, No. 14; and they have been,
as already shewn, consistently, and, it is conceived,
properly interpreted as giving to the provinces full
control over the procedure to be adopted for the
enforcement of the penal law of the ..province legi-
tiinat£ly_ enacted under section 92, No. 15. While,
therefore, it seems desirable that in Canadian jur-
isprudence and legislation the words ^^ crime '' and
'^ criminal '' should be used in what may be called
their constitutional meaning under the British
North America Act, the fiact remains that they are
often used colloquially in the wider sense and may
be so used in a Canadian statute, federal or pro-
vincial. That, of course, is a question of interpre-

'' Ex parte Duncan, R. v. Wason, R. ex rel. Brown v. Simpson
Co., Lecours v. HurtuMse, all cited in the last note.
8 R. V. Bittle, 21 0. H. 605.
^ R. V. Miller, supra.
i" See ante, pp. 547-8.

THE ADMINISTRATION OF JUSTICE. 553

tation in each case. For example, where an Act of
the Ontario legislature provided that the parties to
legal proceedings in any matter '' not being a
crime " should be competent witnesses on their
own behalf, the provision was held not to apply
upon a prosecution for breach of a municipal by-
law forbidding under penalty the erection of
wooden buildings within certain limits; the widest
meaning obviously being given to the word crime/
And in R. v. Bittle,- which is, properly, cited above
as authority for the proposition that a provincial
legislature has full right to control the procedure
for the enforcement of provincial penal law, the
same wide meaning was given to the word
^' crime '^ as used in the same provincial Act. The
Canada Temperance Act contained a provision that
in prosecutions under that Act or under any pro-
vincial Liquor License Act, the person accused
might testify on his own behalf. The provincial
Act above mentioned was held to govern and, the
prosecution being for a ^^ crime," the accused was
not entitled to be a witness on his own behalf. And
there are other cases in which the word ^^ crime "
in a Canadian statute has been given a wider
meaning than the strict constitutional sense would
warrant.^

It has been suggested that provincial legisla-
tion under No. 15 of section 92 can only be special
legislation applying to particular offences;* but the
authorities are all opposed to that view. The
Supreme Court of Canada without any hint of such
a limitation, upheld a general enactment by the

^ R. V. Hart, 20 Ont. R. 611.

==21 Ont. R. 605.

^R. V. Roddy, 41 U. C. Q. B. 291; R. v. Becker, 20 Ont. R. 676;
R. V. Rowe, 12 Can. Law Times, 95.

*i?. V. Boardman, 30 U. C. Q. B. 553; Tarte v. Beique, 6 Mont.
L. R. 289.

554 CANADIAN constitution: self-government.

Ontario legislature empowering the Lieutenant-
-Governor to remit fines, etc., imposed under pro-
ivincial legislation.^

The power is conferred with perhaps somewhat
too minute attention to details,^ but it is a large
general power of legislation and is not to be treated
as if the class enumeration were itself criminal
legislation.^ The punishment may be by fine or im-
prisonment or both ; ^ the imprisonment may be
with or without hard labor ; ^ and the penalty im-
posed may be forfeiture of goods.^" The fine, in
whole or in part, may go to private parties, in-
formers or others.^

Procedure in Civil Matters; (a) Under Federal

Laws.

The parliament of Canada may, when provi-
sion as to procedure is necessarily incidental to
proper and comprehensive legislation upon any of
the branches of jurisprudence wrapped up in the
various classes of section 91, legislate to that ex-
tent as to procedure in civil matters. In other
words, so far as procedure is a necessary and prac-
tically component part of legislation relative to any
of the classes of matters within the competence of
the Dominion parliament, it is an accessory which
follows its principal.^

'Pardoning Power Case, 23 S. C. R. 458.

* See Mr. Edward Blake's argument in R. v. Wason, uM supra.

'Hodge v. R., 9 App. Cas. 117; 53 L. J. P. C. 1; R. v. Frawley,
7 O. A. R. 246. See ante, p. 356.

« Auhrey v. Genest, Q. L. R. 4 Q. B. 523, agreeing with Paige v.
Griffith, 18 L. C. Jur. 119; 2 Cart. 324; and contrary to Ex p.
Papin, 15 L. C. Jur. 334; 2 Cart. 320; 16 L. C. Jur. 319; 2 Cart. 322.

^ Hodge v. R., iibi supra. Contra, Blouin v. Quebec, 7 Q. L. R.
18; 2 Cart. 368.

^°King v. Gardner, 25 N. S. 48.

^Bennett v. PJiarm. Assn., 1 Dorion 336; 2 Cart. 250. But see
Ex p. Armitage, 5 Can. Crim. Cas. 343.

2 See chap. XXVII., ante, p. 493 et seq.

THE ADMINISTRATION OF JUSTICE. 555

No. 27 of section 91 is an express indication that
procedure is an essential part of '^ criminal law.'*
As to laws relating to matters other than crimes,
a perusal of the various classes of section 91 dis-
closes many matters any legislation on which must
almost necessarily involve procedure. Maritime
law is a branch of jurisprudence which falls within
^* navigation and shipping/' and its peculiar per-
emptory in rem procedure is a distinguishing fea-
ture, practically creative of rights and obligations.^
And so of divorce law, patent law, insolvency law,
and election law; and other branches of jurispru-
dence may perhaps be found to be embraced in
some of the other classes of section 91.

It is now authoritatively settled that Dominion
legislation regulating procedure in any such cases
is of paramount authority and will displace the
provincial procedure which, in the absence of fed-
eral law, would otherwise govern.*

Patents of Invention and Discovery: — Dom-
inion legislation under this head constitutes al-
most a distinct branch of jurisprudence— patent
law. It necessarily interferes with and modifies
some of the ordinary rights of property and other
civil rights ^ and provides special procedure and
to some extent a special tribunal for the trial of
patent cases. It has been held, for example, that
the provision in the Patent Act as to the place of
trial of a patent action is legislation regarding a
matter of procedure which the federal parliament
has power to regulate in patent cases ; ^ and, fur-
ther, that by the Act the Minister of Agriculture or

' This topic is dealt with elsewhere.

* See ante, p. 468 et seq., where the general principle of federal
paramountcy is discussed.

' Tennanfs Case, extract ante, p. 429.

» Aitcheson v. Mann, 9 Ont. Pract. R. 473 ; Short v. Fed. Brand
Co., 6 B. C. 385, 436.

556 CANADIAN" constitution: self-government.

his deputy is constituted a judicial tribunal for the
trial of certain of such cases and that, therefore,
prohibition will lie to restrain an illegal exercise of
the power bestowed/

The late Master in Chambers in Ontario (Mr.
Dalton, Q.C.) was of opinion^ that a provincial
Attorney-General is the proper officer to grant a
fiat for the issue of a writ of Sci. Fa. to set aside
letters patent of invention. The judgment was,
however, expressly limited to the case of a subject,
domiciled in the province, seeking to avail himself
of the peculiar privileges of the Crown in order to
the assertion of his own private rights and was not
intended to cover a case where the Crown itself
seeks to avoid a patent. In such a case it has been
held that the Attorney-General of Canada can alone
institute proceedings.^

Copyright :— The power of the Dominion parlia-
ment to legislate upon this class is, or was until
lately, circumscribed by Imperial Acts of colonial
application.^^ So far as concerns the line of divi-
sion between the parliament of Canada and the pro-
vincial legislatures it is clear' that Dominion legis-
lation under this head must interfere with and mod-
ify some of the ordinary rights of property and
other civil rights and may properly provide special
procedure or special tribunals for the decision of
copyright cases, if thought desirable.

Divorce: — To the parliament of Canada is com-
mitted the exclusive power to legislate as to ^^ mar-

' Re Bell Telephone Co. 7 Ont. R. 605. See ante, p. 523 et seq.

« R. V. Pattee, 5 Ont. Pract. R. 292.

""Mousseau v. Bate, 27 L. C. Jour. 153; 3 Cart. 341. As to the
Crown in the courts, see post, p. 589 et seq.

" See ante, p. 251, et seq. The situation when Smiles v. Belford,
10 Ont. App. R, 436, was decided is graphically described in the
judgment of Moss, J.A.

^ Tennanfs Case, extract ante, p. 429.

THE ADMINISTRATION^ OF JUSTICE. 557

riage and divorce '' (section 91, No. 26) while the
provincial legislatures may exclusively make laws
in relation to ^^ the solemnization of marriage in
the province.'' It has recently been held by the
Privy Council that provincial legislation may val-
idly prescribe conditions as to the solemnization of
marriage which may affect the validity of the mar-
riage contract.- The whole field of validity, there-
fore, is not within federal control; but undoubtedly
a large part of it is. It was the opinion of the law
officers of the Crown in England in 1870 that ^ ^ mar-
riage and divorce '' covered all matters relating
to the status of marriage, between what persons
and under what circumstances it shall be created
and (if at all) destroyed, the procedure whereby
that status is created or evidenced being a matter
within the control of the individual provinces^ even
to the extent, as above intimated, of prescribing
procedure or solemnization conditions the failure to
obey which would or might render the contract void
or voidable as the provincial law might determine.
And this view would appear to be that held by the
judges of the Supreme Court of Canada, on the ref-
erence above referred to. The question, however,
as to the essentials to the valid creation of ^^ mar-
riage '' manifestly does not touch at all closely the
question of procedure in civil matters in the Courts ;
while ^^ divorce '' just as manifestly involves the
enactment of provisions not only determining what
shall constitute cause for dissolving the marriage
tie but also creating the necessary Courts and pre^
scribing the procedure to be followed in seeking
such dissolution at the hands of those Courts. As\
is well known no general divorce law for Canada \

= i?e Marriage Laws (1912), A. C. 880; 81 L. J. P. C. 237,
affirining 46 S. C. R. 132.

'This opinion is quoted in full in the judgment of Davies, J.,
46 S. C. R. at p. 342.

558 CANADIAN constitution: self-government.

has been enacted by the parliament of Canada, the
exercise of its authority in this regard being con-
fined to the passage of private divorce Acts.* In
the absence of such a general law the question has
arisen as to the jurisdiction of the ordinary Courts
to adjudicate in what may be called matrimonial
causes; and although the subject may appear some-'
what apart from ' procedure in civil matters ' it
has this bearing, that, whatever the jurisdiction of
the ordinary Courts may be, that jurisdiction is to
be exercised in the mode and according to the pro-
cedure laid down in provincial enactment; always,
of course, in the absence of overriding federal legis-
lation validly passed.^ Without legislation the or-
dinary Courts in existence in the various provinces
which now form part of Canada were purely tem-
poral Courts without spiritual jurisdiction such as
that exercised by the Ecclesiastical Courts in Eng-
land in matrimonial causes prior to 1857 and since
then by the specially created Divorce Court. To
what extent and in what way those temporal Courts
could be called on to adjudicate as to the validity
of a marriage is clearly set forth in a well known
judgment of Sir J. P. Wilde :«

" The various restrictions on marriage, such as a prior
existing marriage, insanity, illegality under the Koyal Mar-
riage Act, and, since Lord Lyndhurst's Act/ consanguinity or
affinity; all these matters when they arise incidentally in the
temporal courts have in modern times been there dealt with
for the purposes of the suit in which they have arisen. In
olden times all questions of marriage were relegated to the
Ecclesiastical authorities. . . . The gradual declension of

* See ante, p. 414.

''The position of British Columbia as to divorce jurisdiction
has been already referred to ; see ante, p. 544 et seq.

«A. V. B., L. R. 1 P. & D. 559; 37 L. J. P. & Mat. 80 (suh nom.
P. V. 8.). Sir James P. Wilde is better known, perhaps, by his
later title. Lord Penzance.

^See ante, p. 263.

THE ADMINISTRATION OF JUSTICE. 559

spiritual authorit}' in matters temporal has brought it about
that all questions as to the intrinsic validity of a marriage, if
arising collaterally in a suit instituted for other objects, are
determined in any of the temporal courts in which they may
chance to arise ; though, at the same time, a suit for the pur-
pose of obtaining a definitive decree, declaring a marriage
void, which should be universally binding and which should
ascertain and determine the status of the parties once for all,
has from all time up to the present been maintainable in the
Ecclesiastical courts or Divorce Court alone."

Sir J. P. Wilde proceeded to point out that mat-
ters, such for example as impotence, which rendered
a marriage voidable at the option of the injured
spouse but not intrinsically void, could not become
cognizable in any way in a temporal Court. To
avoid such a marriage a definitive decree of an
Ecclesiastical Court (or, after 1857, of the Divorce
and Matrimonial Court) was necessary.

As already mentioned, failure to observe the
conditions prescribed by a provincial Act for ^ the
solemnization of marriage in the province ^ (what-
ever the phase may be properly held to cover) may
render a so-called marriage void; and a Canadian
temporal Court would be bound so to hold it if
the question arose collaterally in a suit over which
the Court had jurisdiction. But, apart from legis-
lation conferring jurisdiction to entertain an action
at the suit of one of the spouses seeking merely ^ ' a
definitive decree declaring a marriage void,^^ no
such action would lie in any of the ordinary Courts
in Canada.

Such legislation, however. Chancellor Boyd held
to have been passed in the Judicature Act of On-
tario, which contains the well-known provision that
* ' the Court may make binding declarations of right
whether any consequential relief is or could be
claimed or not;'^ and that, therefore, the High
Court of Justice in Ontario could declare void the

560 CANADIAN constitution: self-government.

marriage of a minor where the consent of parent
or guardian as required by provincial legislation
had not been first obtained, in an action instituted
for the sole purpose of obtaining such a declara-
tion.^ But this view has not commended itself to
other judges in later cases. The weight of author-
ity in Ontario is in favour of the view that the
clause in the Judicature Act above quoted does not
confer jurisdiction to pronounce a declaratory judg-
ment where the right in regard to which a declar-
ation is sought is one. upon which the Court could
not have directly granted relief before the passage
of the Act.'

Lord Lyndhurst's Act, referred to in the extract
above quoted, had been held in an early case ^^ not
to apply to Upper Canada, and in 1910 a Divisional
Court in Ontario held that there was no jurisdiction
in any temporal Court in that province to declare
void a marriage with the brother of a deceased hus-
band, such a marriage being one which only an
Ecclesiastical Court could annul and that only in
the lifetime of both spouses.^ In 1907, Chancellor
Boyd had himself held that his earlier decision did
not apply to an action claiming a declaration of
nullity of a marriage on the ground of impotence,
as such a marriage was voidable only and not void.
It was good until decree, which only an Ecclesias-
tical Court (or parliament) could pronounce.^ In
1911, Mr Justice Clute held that the Court could
not declare void, in an action brought by the guar-
dian ad litem of a minor, a marriage made by her

^Lawless v. Ghamherlain, 18 Ont. R. 296.

^ The latest pronouncement on the effect of this clause in the
Judicature Act is Dyson v. Atty.-Gen, of England (1911), 1 K. B.
410; 80 L. J. K. B. 531.

^"Hodgins v. McNeil, 9 Grant 309.

^May V. May, 22 Ont. L. R. 559; coram Sir Wm. Meredith, C.J.,
Teetzel and Sutherland, JJ.

== T. V. B., 15 Ont. L. R. 224.

THE ADMINISTRATION OF JUSTICE. 561

when of unsound mind;^ and Mr. Justice Lennon
has declined jurisdiction in several eases, the last
being a case where relief was sought by the hus-
band on the ground that the wife (at the date of
trial incarcerated in a lunatic asylum) at the time
of the marriage had fraudulently concealed the fact
that she had previously been insane for a time.*

The legislature of Ontario, in a carefully guarded
enactment, has purported to confer jurisdiction
upon the High Court of Justice to declare void the
marriage of a person under 18, where such marriage
has been without consent or with consent obtained
by duress or fraud. Of this enactment, Sir Wm..
Meredith, C.J., delivering the judgment in May v.
May^^ above referred to, says that the provincial
legislature ^^ went to the extreme limit of, if it did
not overstep, its jurisdiction." No case has arisen
under the Act, so far as the reports shew.

The true view would appear to be this: that a
provincial legislature may confer jurisdiction upon
a provincial Court to declare void a marriage made
void by failure to observe those conditions '^ affect-
ing the validity of the contract "^ which may prop-
erly be prescribed by a law relating to "" the sol-
emnization of marriage in the province," whatever
those conditions may be properly held to include;
otherwise provincial legislation would be largely
shorn of its proper executive sanction through the
instrumentality of the Courts. On the other hand,.

^A.y.B., 22 Ont. L. R. 261.

^Hallman v. Hallman (1914), 26 Ont. W. R. 1. Other cases are
Menzies v. Farnon (1909), 18 Ont. L. R. 174; Hardie v. Hardie, 7
Terr. L. R. 13; HarHs v. Harms, 3 Terr. L. R. 289; Leakim v.
Leakim, 2 D. L. R. 278; 6 D. L. R. 875; Prowd v. Spence (1913),.
10 D. L. R. 215; Reid v. Auld, 32 Ont. L. R. 68.

^ See ante, p. 560. The legislation is fully set out in the judg-
ment.

* See ante, p. 557.

CAN. CON. — 36

562 CANADIAN constitution: self-government.

jurisdiction to declare a marriage void for any other
reason affecting the validity of the contract or to
dissolve it for any cause not based on intrinsic in-
validity must come from federal legislation. The
debateable ground would appear to be that touch-
ing invalidity at common law arising from the ab-
sence of consent; provincial legislation, it may be
argued with some force, might confer jurisdiction
to declare such invalidity. Would such legislation
be ^^ divorce '' legislation T

Procedure in Civil Matters; (h) Generally: —
Subject to what has already been said, jurisdiction
to legislate as to judicial procedure in all civil liti-
gation, whether involving subjects within federal or
within provincial jurisdiction, rests with the pro-
vincial legislatures. For example, the competency
of witnesses is a matter of procedure and, subject
as above indicated, properly falls to be regulated in
civil cases by provincial enactment.^ Whether giv-
ing jurisdiction in appeal is or is not matter of pro-
cedure is a question already dealt with.®

In a comparatively recent case before the Court
of Appeal of Ontario, it was held that an order of
sequestration for disobedience of an injunction was
not (on the facts disclosed) an order made in a
' criminal matter ' but fell within ^ procedure in
civil matters ^ and was therefore appealable.^'' Upon
this aspect of the case the opinion of Meredith, J.A.,
was concurred in by all the judges. For this reason,
the following extract may be taken as expressing
the law as now recognized in Ontario:

^ It is not thought advisable to attempt any statement as to
the law of the province of Quebec. The matter, in some import-
ant features, is now before the Privy Council.

^ McKilligan v. Machar, 3 Man. L. R. 418.

® See ante, p. 538 et seq.

^'^ Copeland-Chatterson Co. v. Business Systems Ltd. (1908),
16 Ont. L. R. 481.

THE ADMINISTRATION OF JUSTICE. 563

" Many things which are in reality crimes, however much
one may struggle to apply some other appropriate word to
them, are created by provincial legislation, though quite with-
out the meaning of the criminal law and practice and pro-
cedure in criminal matters placed within the exclusive legis-
lative authority of the parliament of Canada, and are not ex-
cluded from the Judicature Act or the Consolidated Rules/'

And, later on, he speaks of the phrase ^ criminal
matters ' in the Judicature Act and Rules as not
used in the wide English sense but as meaning —

" only matters which are criminal in the strict sense of
that word, criminal matters such as are under the British
North America Act committed to the exclusive legislative
authoritative of the parliament of Canada."

This agrees with what was stated on a previous
page, that in Canadian enactments the word ^ crim-
inal ' and the phrases ^ criminal law ' and ' criminal
matters ^ should, at least presumably, be taken to
be used in their strict constitutional sense.^

The Criminal Law: Provincial Penal Law.

(a) What is Comprehended within ^^ the Criminal
Law ^' as that Phrase is Used in Section 91,

No, 27 f

^^ Criminal law '^ in its widest sense would deal
with otiPences against provincial laws;^ but by
section 92 (No. 15) exclusive jurisdiction is con-
ferred upon the provincial legislatures to make laws
relating to ** the imposition of punishment by fine,
penalty, or imprisonment for enforcing any law of
the province made in relation to any matter coming

*See ante, p. 549.

'See R. v. Wason, 17 O. A. R. 221; Re Lucas and McGlashan,
27 U. C. Q. B. 81; R. v. Roddy, 41 U. C. Q. B. 291; UAss'n de St.
J.-B. V. BrauJt, 30 S. C. R. 598.

564 CANADIAN CONSTITUTION I SELF-GOVERNMENT.

within any of the classes of subjects enumerated in
this section.'^

From the larger general class the smaller par-
ticular class must be excepted ; and it is now author-
itatively recognized that provincial penal law is not
'^ criminal law ^' within the meaning of thm class
No. 27 of section 91, nor is the procedure for its en
forcement ^' procedure in criminal matters."

The above was written before the decision of the
Privy Council in the Lord's Day Case ;^ and, in-
deed, the views expressed by Lord Halsbury in de-
livering the judgment of the Board in that case have
not been considered by Ca:iiadian Courts as weaken-
ing the authority of the earlier cases upon which
the above propositions are founded. Nevertheless,-
if Lord Halsbury 's language is to be taken literally,
it would seem difficult to assign much, if any, of the
field of penal legislation to the control of provincial
legislatures. The question before their Lordships
was as to the validity of certain Ontario legislation
designed to enforce abstention from labour on Sun-
day and the actual decision was that all such legis-
lation is clearly within ^ the criminal law;' and to
that extent the opinion of the Board has been fol-
lowed by the Supreme Court of Canada; as will
appear. But the reason given by Lord Halsbury
was not based upon any statement as to the prin-
ciples underlying that particular class of legislation
but was based on this, that

" The reservation of the criminal law for the Dominion
of Canada is given in clear and intelligible words, which
must be construed according to their natural and ordinary
signification. These words seem to their Lordships to require,
and indeed to admit, of no plainer exposition than the lan-
guage itself affords. Section 91, sub-section 27, of the British

^Atty.-Gen. of Out. v. Hamilton Street Ry. (1903), A. C. 524;
72 L. J. P. C. 105.

THE ADMINISTRATION OF JUSTICE. 565

North America Act 1867, reserves for the exclusive legis-
lative authority of the parliament of Canada ^ the criminal
law, except the constitution of Courts of criminal jurisdic-
tion.' It is, therefore, the criminal law in its widest sense
that is reserved, and it is impossible, notwithstanding the
protracted argument to which their Lordships have listened,
to doubt that an infraction of the Act which in its original
form, without the amendment afterwards introduced, was in
operation at the time of confederation, is an offence against
the criminal law. The fact that from the criminal law gen-
erally there is one exception — namely, ^ the constitution of
Courts of criminal jurisdiction ' — renders it more clear, if
anything were necessary to render it more clear, that with
that exception (which obviously does not include what has
been contended for in this case) the criminal law in its widest
sense is reserved for the exclusive authority of the Dominion
parliament."

There is no reference whatever to section 92,
No. 15, as requiring a modified interpretation of,
or as forming an exception to, item No. 27 of sec-
tion 91. Nevertheless since this decision Canadian
Courts have continued to treat provincial penal law
as an exception carved out of ^ the criminal law '
in its widest sense. In a recent case * Sir Charles
Fitzpatrick, C.J., says:

" It must be accepted as settled that ' criminal law ' in
the widest and fullest sense is reserved for the exclusive legis-
lative authority of the Dominion parliament, subject to an
exception of the legislation which is necessary for the purpose
of enforcing, whether by fine, penalty, or imprisonment, any
of the laws validly made under the enumerative heads of
section 92 of the British North America Act;"^

*Ouimet v. Ba^an (1912), 46 S. C. R. 502, at p. 505.

■^The learned Chief Justice then proceeds to speak of the
Lord's Dap Case as decided by the Privy Council upon the view
that the criminal law " would include every such law as purports
to deal with public wrongs, that is to say, with offences against
society rather than against the private citizen." No such view,
with due respect, is to be found in the language of Lord Halsbury.

566 CANADIAN constitution: self-government,

and this represents accurately, it is conceived, the
attitude of Canadian Conrts npon the question.

It seems obvious that item No. 27 of section 91
and item No. 15 of section 92 present one of those
apparent conflicts referred to by the Privy Council
in Parsons^ Case^ and there illustrated by reference
to the items ' marriage and divorce ' (Section 91,
No. 26) on the one hand, and ^ the solemnization of
marriage in the province ' (Section 92, No. 12) on
the other; the mode of reconciliation being thus
indicated :

"With regard to certain classes of subjects, therefore,
generally described in section 91, legislative power may reside
as to some matters falling within the general description of
these subjects in the legislatures of the provinces."

(h) To What Extent does Dominion Legislation
Bringing Particular Conduct within the '^ Criminal
Law " Prevent Provincial Legislation in Reference
to Such Conduct?

It has been said that the parliament of Canada
may validly declare anything, even the most inno-
cent local or private matter, to be a crime,^ and
that such legislation would put an end to the juris-
diction of the provincial legislatures.^

On the other hand Armour, C.J., was of opinion®
that the fact that the Dominion Adulteration Act
(as he construed it) rendered criminal the acts for-
bidden by the Ontario Act respecting frauds in the

« See extract ante, p. 419.

' Per Girouard, J., in UAss'n de St. J.-B. v. Brault, 30 S. C. R.
598 (1900).

* Taken with the context the learned judge's statement cannot
be taken to mean more than this; that lotteries, having been
brought within the purview of the " criminal law " by Dominion
enactment, could not be authorized by provincial legislation. That
would be an extreme example of repugnancy.

'R. V. Wason, 17 O. R. 58.

THE ADMINISTRATION OF JUSTICE.

567

supplying of milk to cheese factories, would not
affect the validity of the provincial Act if the latter
'^ comes properly within the powers of that legis-
lature.'' In this view he was supported by the
judges of the Court of Appeal.'" The Dominion
further legislated along the line of the Ontario Act,
and such legislation was held intra vires,^ Eose, J.,
for the Court, saying:

" It was urged "iipon us that if the legislature had power
to deal with the subject it followed that it was not within
the jurisdiction of the parliament. I think this is not so.
In my opinion Mr. Edward Blake in his argument in E^i
V. Wdson, correctly stated the law as follows : ' The juris-^|
dictions of the provinces and the Dominion overlap. The)
Dominion can declare anything a crime, but this only so asl
not to interfere with or exclude the powers of the province |
of dealing with the same thing in its civil aspect and of im-l
posing sanctions for the observance of the law ; so that though
the result might be an inconvenient exposure to a double
liability, that possibility is no argument against the right to
exercise the power.' ^'^

The Privy Council, too, has held that the exist-
ence of Dominion criminal law on the subject of
assault and criminal libel is no reason for denying
to a provincial assembly the right to forbid and
punish such acts and conduct when they threaten to
disturb the orderly conduct of business and debate
in the assembly.^

The problem calls at every turn for the applica- \
tion of the rule that the true nature and legislative ^

^" 17 O. A. R. 221; but the view was expressed that the Adulter-
ation Act did not reach the offence aimed at by the provincial
statute.

*i?. V. Stone (1892), 23 O. R. 46. See also R. v. McGregor,
4 O. L. R. 198.

' Compare the language of the Privy Council in the Fisheries
Case (quoted ante, p. 436), in reference to double taxation.

^Fielding v. Thomas (1896), A. C. 600; 65 L. J. P. C. UDS.
See also the discussion in the court below on this feature of the
case, 26 N. S. 55.

568 CANADIAN constitution: self-government.

character, the pith and substance, of the enactment
which may be in question must be determined in
order to refer it to its proper class.* Certain pro-
positions, too, formerly discussed, in reference to
the scheme of legislative distribution effected by the
British North America Act, must be borne in mind..
Dominion legislation within its competency is of
paramount authority and, to the extent that provin-
cial enactments are repugnant to such Dominion
legislation, they must give way.^ But a provincial
Act may deal with the same subject matter in any
other aspect which would bring it within one of
the classes of section 92; and, to the extent that
such legislation is not repugnant to federal legisla-
lation falling within ^ the criminal law ' class, it is
intra vires and operative.^ It is here more especially,
perhaps, that it is to be borne in mind that —

" All experience shews that the same measures, or mea-
sures scarcely distinguishable from each other, may flow from
distinct powers; but this does not prove that the powers
themselves are identical."^

There are many other dicta to the effect that the
parliament of Canada can declare any act to be a
crime and thus bring it within the purview of the
*^ criminal law."^ In this view no doubt can arise

* This rule is discussed, ante, p. 485.

^ See ante, p. 468 et seq.

® See ante, p. 488.

''Per Marshall, C.J., in Gihlons v. Ogden, 9 Wheat. 1, 204,
quoted with approval by Boyd, C, in Kerley v. London, do., Co.
(1912), 26 Ont. L. R. 588.

' R. V. Wason, 17 O. A. R. 221, per Burton and Osier, JJ.A. ;
R. V. Stone, 23 0. R. 46 ; UAss'n de 8t. J.-B. v. Brault, 30 S. C. R.
598, per Girouard, J.; per Bain, J., in R. v. Shaw, 7 Man. L. R.
518; R. v. Rolert^on, 3 Man. L. R. 613 ; Ex p. Duncan, udi supra.
See, however, per Wetmore, J., in R. v. Frederickton (1879), 3 P.
& B. at p. 160. As to the place of confinement, and the expense
of maintenance of prisoners confined under federal law, see Re
Goodspeed (1903), 26 N. B. 91; Re N. B. Penitentiary, Coutlee's
Supreme Ct. C'as. 24.

THE ADMINISTRATION OF JUSTICE. 569

as to the validity of such an enactment even where
there is similar provincial legislation.^ The par-
liament of Canada at one time attempted to cover
the entire field by enacting that the infraction of
a provincial law which is not otherwise made an
offence shall be a misdemeanour and punishal)le as
such;'^ an enactment of doubtful validity. For, if
such an enactment is within ^ the criminal law '
confided to the Dominion, then any infraction of a
provincial law might be, without qualification, made
part of the federal criminal law and the exclusive
jurisdiction of the provinces to prescribe and con-
trol the procedure to be followed in the enforce-
ment of provincial law might thus be completely
overborne. That there is some limit to the power
of the federal parliament ' in this connection is indi-
cated in the following extract from the judgment
of Meredith, J.A., in a recent case :^

" It may be, indeed it must be, that this legislative power
is not as wide as that of the imperial parliament in the same
field of legislation. In regard to such questions as are in^
volved in this case, the rule may be that which is said to
prevail in the Courts of the United States of America, which,
as applied to Canada, may be thus stated: Parliament has ,:
power to prohibit and punish any act as a crime prqvided-iti
_d,oes not violate any exclusive power of legislation conferred
upon the legislatures of the provinces ; and the Courts cannot
consider the question further than to see whether there has
been a violation of such exclusive powers."

Therc^ is, liowover, no reported case in which a
federal {x^iial law has. been held invalid as an un-
authorized encroachment upon the provincial field.
In the case from which the above extract is taken,
the Court of Appeal for Ontario was asked, in a

^ R. v. Stone, iihi supra.
^•^ But see now the Criminal Code, sec. 706.
^R. v. Lee (1911), 23 Ont. L. R. 490 (C.A.)

570 CANADIAN constitution: self-government.

case stated, to pass upon the validity of a Dominion
enactment" which provided that any dealer should
be guilty of an indictable offence who ^^ makes use
of any written or printed matter or advertisement
or applies any mark to any article of any kind *'
covered by the statute ^^ or to any part of such
article guaranteeing or purporting to guarantee by
such matter, advertisement, or mark that the gold
or silver on or in such article will wear or last
for any specified time. ' ' This enactment was unani-
mously upheld as criminal legislation properly so
called. The judgment of the late Sir Charles Moss,
C.J.O., is a fitting introduction to a discussion of
the distinction which should properly be drawn be-
tween the criminal law which is within the legisla-
tive ken of the federal parliament and the penal
laws which a province may validly enact and en-
force. Eeferring to the provisions above quoted,
he says:

" They are the culmination of a series of provisions . .
manifestly designed for the protection of purchasers, intend-
ing purchasers, and the public generally, against imposition
or deception as to the quality, fineness, grade or description
of the articles therein specified, . . . the governing pur-
pose being the prevention of the use of false or misleading
indicia. . . .

The objection made to sub-sec. (6) is, that it assumes to
render penal what is nothing more than the mere warranting,
in writing or by means of a mark, the lasting quality of the
article — a matter of contract or representation not within the
realm of criminal law. But assuming that to be the case
it by no means concludes the matter. . . .

The exclusive legislative authority conferred by sectionl*-
91 upon the parliament of Canada in relation to the crim--
inal law, including the procedure in criminal matters, does]
not deprive the provincial legislatures of the right to legisn

=» The Gold and Silver Marking Act, 7 & 8 Ed. VII., c. 30, s. 166
(Dom.)

THE ADMINISTRATION OF JUSTICE. 571

' I

late' for the better protection of the rights of property by pre-
venting fraud in relation to contracts or dealings in a par-
ticular business or trade : Reg. v. Wason, supra.^

But, on the other hand, the right of the provincial legis-l
latures so to legislate does not deprive the parliament of its'
powers in relation to criminal law. In the case referred to,
Osier, J. A., said (p. 241) : 'I suppose it will not be denied
that the latter' — i.e., the parliament — may draw into the
domain of criminal law an act which has hitherto been
punishable only under a provincial statute.' A fortiori,
where the field has not been already occupied by provincial
legislation. . . .

Although in one way the sub-section may appear to inter-
fere with the right and power to contract, yet in another way
it is the exercise of the power to prevent and punish the adop-
tion of methods whereby the public are or may be exposed to
deception or imposition."

As this case clearly shows, no distinction can be {
drawn, as touching the question of jurisdiction, be-
tween acts mala in se and acts which are offences
merely because prohibited.

In an earlier case,* referred to with approval in
the judgment just mentioned, a federal statute cov-
ering much the same ground as that covered by the
provincial legislation in question in R. v. Wason,^
as to fraud in the delivery of milk to cheese fac-
tories, was upheld by a Divisional Court. Eose, J.,
delivering the judgment of the Court, said:

" Had there been no provincial statute, I do not think it
could have been argued that the Act in question did not cre-
ate a crime and was not within the powers of Parliaments.
. . . The passing of a provincial statute within the powers'
of the legislature cannot in any wise take away from Parlia-
ment the right to legislate respecting the same matters, and'.

^ 17 Ont. App. R. 221. See post, p. 572.

*R. V. Btone (1892), 23 Ont. R. 46, coram Gait, C.J., Rose and
MacMahon, JJ.

» 17 Ont. App. R. 221. See post, p. 572.

572 CANADIAN constitution: self-government,

to prohibit them and to enforce the prohibition by such pun- 1
ishment by way of fine or imprisonment as may be deemed I
best/'

Further expressions of judicial opinion as to
the scope of the criminal law which is properly
within federal jurisdiction will appear in the cases
which have now to be considered dealing with the
question of the range which provincial penal law
may properly take. Most of the cases, in fact, ap-
proach the question from this point of view; in
other words, the validity of provincial Acts has most
frequently been in question.

(c). What is the Test to he Applied to any Provin-
cial Enactment Imposing Punishment?

In what may be termed the leading case on the^
subject,^ an Ontario Act directed to preventing
fraud in the supplying of milk to cheese factories
was impugned. All the judges agreed that the case
turned upon the question as to the true character
and nature of the legislation. In the Court below
the judges ^' arrived at diametrically opposite con-
clusions, the chief justice^ being of opinion that the
primary object of the Act was to create new offences
and to provide for their punishment, while my
brother Street considers that its real object was the
regulation of the rights and dealings of cheese-
makers and their patrons.'' The Court of Appeal
unanimously adopted the view taken by Street, J.

In deciding the question, regard is to be had to

the prescribing rather than the punitive clauses of

the Act.^ Do the prescribing clauses fall properly

\ within any class enumerated in section 92 other

"R. V. Wason, 17 0. A. R. 221; 17 O. R. 58.

■^ ArmourrC.J., with whom Falconbridge, J., concurred. The
quotation is from the judgment of Osier, J.A., in appeal.
^ Per Osier, J.A.

THE ADMINISTRATION OF JUSTICE. 573

than No. 15 itself? This is the test expressly sup-
plied by No. 15. If they do so fall, ^' how can the
fact that the legislature has . . . imposed a pen-
alty convert that into a crime which was not so
otherwise. ' *^

The considerations which influenced the judges
in determining the true nature and legislative char-
acter of the impugned Act will appear from the fol-
lowing extracts :

" Is it an Act constituting a new crime for the purpose
of punishing that crime in the interest of puhlic morcdityf
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 crim-
inal 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 British North America Act. An examination of the
Act satisfies me that the latter is its true object, intention and
character."-^Street, J.

" If this be an Act merely to create offences in the interest
of public morality it may be argued that it is trenching on the
forbidden ground of ' criminal law.' If it be, as I think it is,
an Act to regulate the business carried on at these cheese
factories, ... I consider it to be within the powers given
by the constitution to the provincial legislature." — Hagarty,
C.J.O.

" The regulation of their dealings between the persons
supplying milk and the persons to whom it is supplied was
not only the primary object but the sole object of the legis-
lature."— Burton, J.A.

" The Act is to be regarded as one, the primary object
of which is not the creation of new offences generally and
the prevention of dishonesty among all classes in relation to
the kind of dealings mentioned therein, but the regulation

""Per Burton, J.A. Mr. Justice Maclennan says: " The proper
way to look at this case is to lay out of view for the moment the
penalty and see whether the principal subject enacted is com-
petent."

574 CANADIAN constitution: self-government.

of the contracts and dealings between the parties in a par-
ticular business or transaction. ... It is, I consider, de-
signed more for the protection of civil rights than the pro-
motion of public morals or the prevention of public wrongs."
— Osier, J.A.

" The provisions of the Act in question seemed to have
been designed to regulate the dealings between the manu-
facturers and their customers in such a way as to secure
fairness and good faith. . . . That seems to me to be
the object and purpose of the legislature, and not the crea-
tion of new offences and their punishment by fine and im-
prisonment."— Maclennan, J.A.

The principle of the above case has been recog-
nized and adopted by the Supreme Court of No /a
Scotia.^^ Eeferring to a provincial Act forbidding
labor on the Lord^s Day, Graham, E.J., says:

" Is it aimed at a public wrong or is it a ^ shall not ' in
respect of civil rights ?

and applies to it the language of the Privy Council,
used in reference to the Canada Temperance Act:^

" Laws of this nature designed for the promotion of public
order, safety and morals . . . belong to the subject of
public wrongs rather than to that of civil rights."

Thus, while expressly approving of the test sug-
gested by Street, J.,^ the learned judge placed the
Act in question before him in the '^ criminal law '^
class.

The same test was applied by the Supreme Court
of the North- West Territories,^ with the result that

"i?. V. Halifax Tram. Co. (1898), 30 N. S. 469. Compare Ex p.
Green, 35 N. B. 137.

^Russell V. Reg., 7 App. Cas. 829; 51 L. J. P. C. 77. The pas-
sage is quoted, ante, p. 424.

^R. V. Wason, uM supra.

*R. V. Keefe, 1 N. W. T. Rep. 88; 1 Terr. L. R. 282. Compare
Gower v. Joyner, 2 N. W. T. Rep. 43, in which, on the authority of
R. V. Wason. an Ordinance was upheld which provided that for

THE ADMINISTRATION OF JUSTICE. 575

the ordinance against gambling there impugned was
also held to be an encroachment upon ^^ criminal
law^^

''There is no doubt in onr minds that the real object li
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."

Nature of Punishment : — The nature of the pun- 1 1
ishment to be inflicted has no bearing upon the 11
question of constitutional validity. As put by
Osier, J.A.:*

^ " The competency of the enactment cannot be tested byl
the severity of the sanction so long as the latter is limited toll
fine, penalty, or imprisonment; in other words, it cannot be
argued that the thing prohibited is brought within the range
of the criminal law merely by reason of the high nature of
the punishment which may be inflicted upon the offender;
and therefore those cases in which that has been made the
test of an act not being a crime, and the proceeding for its
punishment a ' criminal ' as distinguished from a civil pro-
ceeding are of little or no assistance in construing this pro-
vision of the ^Constitutional Act."

"Of course, the imposition of a penalty means little.
Both legislatures may impose penalties."^

Laws Merely Prohibitive: — And it is recognized j]
that provincial legislation, particularly that per-:!
missible under item No. 16 of section 92, " Gener-
ally, all matters of a merely local or private nature
in the province," may consist of prohibitive enact-
ments merely, and that this of itself affords no test
as to the validity of the enactment. For example,

ill-usage, non-payment of wages to, or improper dismissal of a
servant by his master, a J. P. might order the master to pay a
month's wages as a penalty in addition to arrears, etc.

* R. v. Wason, supra.

'Per Graham, E.J., in R. v. Halifax Tram. Co., 30 N. S. 469.

576 CANADIAN constitution: self-government.

provincial prohibition of the liquor traffic in its pro-
vincial aspect is jvithin the power of the provincial
legislatures; anil in the judgment of the Privy
Council in the Local Prohibition Case^ this passage
occurs:

" An Act restricting the right to carry weapons of offensej
or their sale to young persons, within the province, would be
within the authority of the provincial legislature. But traffic
in arms, or the possession of them under such circumstances
as to raise a suspicion that they were to be used for seditious
purposes, or against a foreign state, are matters which, their
Lordships conceive, might be competently dealt with by the
parliament of the Dominion."

Their Lordships, however, were discussing the
line of division between the opening clause of s.
91, and ^' local and private matters '^ (No. 16 of
s. 92), and evidently had not the subject of crim-
inal law in view. The passage, nevertheless, recog-
nizes a wide field as open to provincial legislation
alongside the field of criminal law controlled by
the parliament of Canada. Much provincial legis-
lation, indeed, is of this simply prohibitive char-
acter. As put by Mr. Justice Osier, in R. v.
Was on :®^

" The legislature when really dealing with property and
civil rights must have power to say ^ thou shalt ' or ' thou
shalt not,^ and, as the breach of the legislative command is
always, in one sense, an offence, the line between wHat may,
and what may not be lawfully prescribed without touching
upon ^ criminal^ law is sometimes difficult to ascertain, and
may shift according to circumstances. . . . The criminal
^'^ law, so far as regards human legislation, in its ultimate ob-
ject, even when dealing with public order, safety, or morals,
is chiefly concerned with preventing and punishing the vio-
lation of personal rights and rights respecting property, and

« (1896) A. C. 348; 65 L. J. P. C. 26. See also Russell v. R.,
51 L. J. P. C. at p. 81.

THE ADMINISTRATION OF JUSTICE. 577

hence, in a very wide sense^ 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 con-
federated 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 protection 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 92, and to punish
the infraction of the law in a suitable manner, so long, at
all events, as parliament has not occupied the precise field."

The same view is thus expressed by Mr. Justice
Duff in a recent casef

" The enactment is not necessarily brought within the
category of ^ criminal law ' as that phrase is used in section
91 of the British Koxth America Act, 1867, by the fact merely
that it consists simply of a. prohibition and .of clauses pre-
scribing penalties for the non-observance of the substantive
provisions. . . . The provinces may under section 92 (16) Ij
suppress a provincial evil by prohibiting 5tmp?iafer 'the -doing j
of the acts which constitute the evil or the maintaining of !
conditions affording a favourable milieu for it, under the
sanction of penalties authorized by section 92 (15).^

In the case from which the last extract has been
taken an enactment of the Saskatchewan legisla-i
ture was in question. It provided under penalty
that no person should employ any white woman or 1
girl, or permit any such to work, in any restaurant, j
laundry, or other place of business or amusement i
owned, kept, or managed by any Chinaman. It was
attacked as an invasion of the jurisdiction of the
parliament of Canada over ^* naturalization and
aliens ^'rather than over ^^ the criminal law;'^ and %

'' Quong Wing y. R. (1914), 49 S. C. R. at p. 462.

"Hodge's Case, 9 App. Cas. 117; 53 L. J. P. C. 1; Local Prohi-
Mtion Case, supra; and the Manitoba Liquor Act Case (1902),
A. C. 73; 71 L. J. P. C. 28, are cited as authorities for this last
proposition.

CAN. CON. — 37

578 CANADIAN constitution: self-government.

none of the judges, other than Mr. Justice Duff,
deals with this latter phase. As already intimated^
the legislation was upheld.

In an Ontario Act concerning loan companies
there was a clause penalizing the making of certain
kinds of contracts, and in the judgment of Sir Wm.
Meredith, C.J., speaking for a Divisional Court, up-
holding the validity of the enactment as a prohibi-
tion designed to prevent what were deemed from a
provincial point of view questionable methods in
contracting, the view is expressed that if in order
to the validity of the legislation it was necessary
to construe the penal clause as in effect prohibitive,
it should be so constrijed. Apart, however, from
this reason for such construction, he held upon the
authorities that the simple imposition of a penalty
upon the doing of an act is in legal effect a pro-
hibition without express words.^^

An Ontario Act prohibiting under penalty the
entering .a horse in a wrong class in any race at
an agricultural association show was upheld as re-
lating to ^^ Agriculture '^ (section 95) and not in
conflict with any federal legislation. Meredith,
J.A., speaks of the prohibited act as ^* something
short of a crime. **^

Sahhath Observance Laws: — Provincial legisla-
tion as to Sabbath observance was held by the Privy
Council, as already mentioned, to be invalid as re-
lating to the criminal law, so far at all events as
regards the general prohibition of labour upon that
day.^ Since that decision, the same question has been
twice before the Supreme Court of Canada and in
both instances the provincial legislation impugned

® See ante, p. 486; also post, p. 833.
"i?. V. Pierce (1904), 9 Ont. L. R. 374.
^R. V. Homung (1904), 8 Ont. L. R. 215.
^See ante, p. 564 et seq.

THE ADMINISTRATION OF JUSTICE. 579

was pronounced invalid. In the first case,^
upon a reference from the Governor-General in
Council, the Court expressed itself as unable to dis-
tinguish the draft provincial bill which was sub-
mitted— and which was framed carefully as a labour
abstention Act merely — from the Ontario Act which
in the Lord's Day Case the Privy Council had held
invalid; and deduced this principle from the de-
cision of the Board:

"The day commonly called Sunday or the Sabbath or
the Lord's Day is recognized in all Christian countries as an
existing institution and legislation having for its object the
compulsory observance of such day or the fixing of rules of
conduct (with the usual sanctions) to be followed on that
day is legislation properly falling within the views expressed
by the Judicial Committee and is within the jurisdiction of
the Dominion parliament."

In the later case* an Act of the Quebec legisla-
ture was in question. It provided that no person
should, on Sunday, for gain, do or cause to be done
any industrial work or pursue any business or call-
ing, or give or organize theatrical performances or
certain excursions. The appellant had been con-
victed of giving theatrical performances on Sunday,
contrary to the provisions of this provincial Act;
and the sole question before the Supreme Court of
Canada was as to the validity of the enactment.
The decision of the Privy Council in the Lord's
Day Case was held to cover such legislation and
the provincial Act was therefore held ultra vires.

' Re Sunday Legislation, 35 S. C. R. 581.

*Ouimet v. Bazan (1912), 46 S. C. R. 502. Following the
earlier case the Dominion parliament passed a Lord's Day Act
(see R. S. C. 1906, cap. 153), which leaves, or purports to leave,
the matter largely to the individual provinces. The validity of
some of its provisions in this regard is open to serious doubt, as
already intimated: see ante, p. UQ^et seq. It was held not to
affect the question before the Court in Ouimet v. Bazan.

580 CANADIAN constitution: self-government.

The Chief Justice treated the judgment of the
Board as holding that the phrase ^* the criminal
law"—

" would include every such law as purports to deal with
public wrongs, that is to say, with offences against society
rather than against the private citizen/'

and applying that test he concluded that the sec-
tion impugned was not a local, municipal, or police
regulation intended to regulate civil rights but
'^ legislation designed to promote order, safety, and,
morals.'' Mr. Justice Idington expressed the view^
that the giving of theatrical performances or ex-
cursions of the kind described may well be pro-
^ hibited by provincial legislation, such legislation
L& \ not resting upon the licensing power but upon the
power to ^^ make such mere police regulations as
the . social habits and conditions existing in that
province may require;'' and later on he speaks of
the right of a province to do something ^' to eradi-
cate an evil which is not likely to be dealt with by
Parliament." In this connection it may be noted,^
as Mr. Justice Davies intimated in another case,^
that such provincial legislation under the residuary
clause No. 16 of section 92 may properly deal
^^ with public law and order from a provincial
standpoint and not with private wrongs or civil
rights;" and in Quong Wing v. i?./ ab^
the Chief Justice and Mr. Justice Duff bl
the provincial Act there upheld as one d1
a local evil or apprehended local evil
standpoint of public as well as private morality.
All this tends to establish that there is practically
very little limit to the possible range of provincial
penal law so long as the substantive matter dealt

^R. V. McNutt (1912), 47 S. C. R. at pp. 265-6. This case is
more fully discussed, ante p. 546 et seq.
M9 S. C. R. 440.

THE ADMINISTRATION OF JUSTICE. 581

with is approached and dealt with from the local
or private standpoint, even in a wide provincial
sense; in other words, so long as the substantive
enactment, considered wholly apart from the sanc-j'
tion attached, is within provincial competence.

With reference to Sunday observance legisla-
tion, the question is undoubtedly clouded with un-
certainty. Mr. Justice Duff considered that the
Quebec Act in question in Ouimet v. Bazan treated
the prohibited acts ^' as constituting a profanation
of the Christian institution of the Lord's Day ''
and punished them as such; and he felt bound by
the decision of the Privy Council in the Lord's Day
Case to hold such legislation as within *' the crim-
inal law,'' and therefore ultra vires. He then pro-
ceeds :

" It is perhaps needless to say that it does not follow from
this that the whole subject of the regulation of the conduct
of people on the first day of the week is exclusively com-
mitted to the Dominion parliament. It is not at all neces-
sary in this case to express any opinion on the question, andj
I wish to reserve the question in the fullest degree of how far
regulations enacted by a provincial legislature affecting the
conduct of people on Sunday, but enacted solely with a view
to promote some object having no relation to the religiou^j
character of the day would constitute an invasion of the jurist
diction reserved to the Dominion parliament. But it may be
noted that since the decision of the Judicial Committee in
Hodge v. R."^ it has never been doubted that the Sunday clos
ing provisions in force in most of the provinces affecting what
is commonly called the liquor trade were entirely within the
competence of the provinces to enact; and it is of course
undisputed that for the purpose of making such enactment

^9 App. Cas. 117; 53 L. J. P. C. 1. Hodge was convicted on
the charge of allowing billiards to be played in his hotel after
seven o'clock on Saturday night, contrary to regulations of the
Police Commissioners (held valid), which provided that billiard
rooms should be kept closed from seven p.m. on Saturday to
6 a.m. on Monday. See also Re Fisher d Carman, 16 Man. 560.

582 CANADIAN constitution: self-government.

effective when within their competence the legislatures may
exercise all the powers conferred by snb-section 15 of section
92 of the British North America Act."

Later in the same year, 1912, the question came
before Chancellor Boyd as to the validity of cer-
tain provisions of the Ontario Kailway Act which
purported to prohibit the running of Sunday trains
(subject to certain exceptions here immaterial) on
railways within provincial jurisdiction.^ On con-
sideration of the purely secular aspect of the legis-
lation, designed to secure rest and recuperation for
railway employees, and also of the right of a pro-
vince to annex to the grant of corporate powers a
condition limiting the right of exercise to six days
in the week, the learned Chancellor upheld the pro-
visions of the Act. In the Court of Appeal no opin-
ion was expressed on this aspect of the case, the
judgment of the Chancellor being reversed on the
ground that the defendant railway was a federal
railway and as such not touched by the provincial
enactment.

Do any offences at common law fall within the
class of provincial penal law?

Prior to Confederation there existed no neces-
sity for distinguishing the various parts of the
criminal code, whether as passed for the putting
down of public wrongs or as directed towards the i
upholding of private rights. "■ Crime,'' in British'
jurisprudence, is a most comprehensive term. Any
offence for which the law awards punishment is,
according to high authority, a crime.®

^Kerley v. London dc, Transp. Co. (1912), 26 Ont. L. R. 588;*
28 Ont. L. R. 606.

^ Mann v. Owen, 9 B. & C. 595, quoted with approval by Anglin,
J., in Re McNutt, 47 S. C. R. at p. 283. Duff, J., suggests a some-
what modified rule even in English, as distinguished from Cana-
dian, jurisprudence: pp. 272-3. Re McNutt is discussed, ante,

THE ADMINISTRATION OF JUSTICE. 583

The British North America Act (section 129)
continued the whole body of existing law, both com-
mon law and statutory enactments, ^' subject, never-
theless, to be altered by the parliament of Canada
or by the legislature of the respective provinces,
according to the authority of the parliament or of
that legislature under this Act." Criminal law in
its wide pre-confederation sense was thus divided,
and there is no doubt that whatever enactments
could now, were they non-existent, be passed by a
provincial legislature, became upon the passage of
the British North America Act a body of provincial
penal law/^

Much may be advanced in favour of the view
that even the common law of England upon this
subject, so far as still extant in Canada, is capable
of division along a similar line,^ but judicial opin-
ion favours the view that this is by the British
North America Act assigned in its entirety to the
parliament of Canada.

A provision in the Ontario Liquor License Act
that any person who, in a prosecution under the
Act, should tamper with a witness, should be guilty
of an offence under the Act and liable to a penalty,
was held ultra vires because the offence dealt with
was an offence at common law.- On the same ground

p. 546, on the question of ' criminal ' procedure. See also Re
Lucas do McOlasTian, 27 U. C. Q. B. 81; R. v. Roddy, 41 U. C. Q. B.
291.

^"Dohie V. Temp. Board, 7 App. Cas. 136; 51 L. J. P. C. 26;
Local ProhiMtion Case (1896), A. C. 348; 65 L. J. P. C. 26.

^ See per Osier, J.A., in R. v. Wason, 17 Ont. App. R. 221.

'R. V. Lawrence, 44 U. C. Q. B. 164, affirming judgment of
Gwynne, J. Compare with this case R. v. Boardman, 30 U. C.
Q. B. 553, in which a provision in the same Act forbidding under
penalty any compromise of a prosecution was upheld. Such a
compromise would not be an offence at common law and the cases
can be reconciled only on that ground.

584 CAN"ADiAN- constitution: self-government.

provincial legislation in Quebec authorizing lotter-
ies was held invalid,^ and a Manitoba Act against
the keeping of gambling houses was held to infringe
upon the '' criminal law '^ upon the same ground/
The judgment of Dubuc, J., .in this last case would
seem to be in accord with the later authorities. He
considered the offence a crime at common law, but
inclined to the view that in its local and private
aspect it might also be the subject of local prohibi-
tion. The above authorities can go no further, it
is submitted, than this: that where an- act is ani
offence at common law provincial legislation cannot
authorize it nor legislate with regard to it in its
criminal aspect, but can legislate in reference to it
in its local provincial aspect so long as such pro-
vincial legislation is not repugnant to the Dominion
enactment.^ It has been held, for example, that a
medical council may, acting under powers conferred
by provincial Act, investigate into and discipline
members for acts which may amount to crimes, and,
even after acquittal on a criminal prosecution, may:
still enquire into the doing of the act alleged and
discipline the member in accordance with the Coun-
cil's own view of the facts/*

In regard to Sunday observance laws, stress wasl
laid by some of the judges of the Supreme Court
of Canada upon the fact that Sabbath breaking wa&
an offence at common law and should for that rea--
son be held to fall within ^' the criminal law '' as-
signed to federal jurisdiction.^ And the same idea

^UAss'n de St. J.-B. v. Brault, 30 S. C. R. 598. Girouard, J.,
dissented on the ground that it was no offence at common law to
conduct a lottery, and that although the Criminal Code has now
brought lotteries within the purview of the criminal law the
agreement sued on, having been made before the code came into
force, was valid.

* R. v. Shaw, 7 Man. L. R. 518.

" See ante, p. 488.

"•^JRe Stinson & Coll. of Physicians (Ont.), 22 Ont L. R. 627.

""Ouimet v. Bazan (1912), 46 S. C. R. 502.

THE ADMINISTRATION OF JUSTICE. 585

underlies a recent decision of the Court of Appeal
of Manitoba upholding a provincial enactment
which permitted an attorney or solicitor to bargain
with a client for a share in the money or property
to be recovered 'in an action. Champerty as an
offence at common law had, in the opinion of the
Court, became obsolete before 1870 and did not
therefore become part of the criminal law of the
province under the English Law Introduction Act."^

How is pre-Confederation statutory law on the
subject of crimes to be divided? or is it to be di-
vided at all?

As already indicated,^ section 129 of the British
North America Act would seem to be decisive upon
this point; but there are some strong judicial dicta
in support of the view that the criminal law as em-
bodied in the statutes of the federating provinces
became criminal law within class No. 27 of section
91. For example, Killam, J., uses this language:^

" It was an offence at common law to keep a gambling
house. This offence, it appears to me, comes within the
subject of criminal law referred to in section 91, sub-section
27 of the British North America Act. That term must, in
my opinion, include every act or omission which was regarded
as criminal hy the laws af the 'provinces when the Union Act
was passed, 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 difficulty than ever would arise in draw-
ing the line between the jurisdiction of the Dominion and the
provincial legislatures. This gives us one clear line of de-
marcation which it would be dangerous to obliterate. I think

'Thompson v. Wishart (1910), 19 Man. L. R. 340.

""Ante, p. 583.

^R. V. Shaw, 7 Man. L. R. 518. On appeal Taylor, C.J., ex-
pressed his entire concurrence in the judgment of Killam, J. Cf.
R. V. Robertson, 3 Man. L. R. 613, upholding provincial game laws
in the absence of Dominion legislation.

586 CANADIAN" constitution: self-government.

it must be deemed to be one line which was intended to exist.
How far parliament can exclude provincial or municipal legis-
lation by creating new crimes is a question."

Among the statutes in force in Nova Scotia at
the date of Confederation was one entitled ^' of-
fences against religion." Some of its provisions
were incorporated in and repealed by subsequent
Dominion legislation; but certain sections were
neither repealed nor re-enacted; of these one pro-
hibited under penalty certain kinds of labour on the
Lord^s day. An amendment of this section by a
provincial Act extending it to corporations was held
ultra vires,'^^ and Eitchie, J., puts his judgment on
the sole ground that the pre-Confederation statute
was part of the criminal law of Nova Scotia which
a provincial Act could not afterwards touch.

On the other hand, an Act of the provincial legis-
lature of New Brunswick prohibiting the sale of
real or personal property on Sunday, or the exer-
cise of any worldly business on that day, was held
valid by the Supreme Court of that province,^ and
Barker, J., points out that not everything called
'' criminal law " in ante-Confederation legislation
is to be deemed part of '^ the criminal law " as-
signed by the British North America Act to the

"J2. V. Halifax Tram. Co. (1898), 30 N. S. 469. Reference is
made to the fact that there was then no Dominion legislation in
force respecting Sabbath observance. McDonald, C.J., dissented
on the ground that the pre-Confederation statute was still in
force by virtue of s. 129 of the British North America Act, and
covered the offence charged.

^Ex p. Green, 35 N. B. 137. The offence charged was selling
cigars on Sunday, and the judgment followed the view expressed
by Taschereau, J., in Huson v. S. Norwich (1895), 24 S. C. R. at
p. 160: — "There are a large number of subjects which are gener-
ally accepted as falling under the denomination of police regula-
tions. . . . Take, for instance, the closing of stores and the
cessation of labor on Sunday. Parliament, I take it, has power to.
legislate on the subject for the Dominion; but, until it does so,j
the provinces have, each for itself, the same power."

THE ADMINISTRATION OF JUSTICE. 587

Dominion parliament because the federating pro-
vinces differed in this respect.^

And the same view has recently been expressed
by Mr. Justice Anglin in the Supreme Court of
Canada.^ It will be seen by reference to the judg-
ment of Lord Halsbury in the Lord^s Bay Case that
express attention is drawn to the fact that the On-
tario statute there in question had, apart from cer-
tain amendments, been in force in (old) Canada
before Confederation; and apparently the argu-
ment had been advanced before the Supreme Court
that this was the real ground of the decision. As
to this Mr. Justice Anglin says:

" I do not regard the decision of the Judicial Committee
as depending on the fact that the Upper Canada ^ Lord's Day
Act' (Con. Stat. IJ. C, 1859, c. 104), had been originally
enacted by a legislature clothed with authority to pass crim-
inal laws. Neither can I accede to an argument which in-
volves the view that legislation held to be criminal in one
province of Canada may be regarded as something different
in another province."

Miscellaneous Cases : — As examples of what may
be considered provisions relating to ^^ criminal
law ^' and criminal procedure the following may be
noted :

A provision that penalties against justices of
the peace for non-return of convictions may be re-
covered in an action of debt by any person suing
for the same in any Court of record : Held to over-
ride a provincial enactment declaring that a county
Court should not have jurisdiction in such cases.*
The Dominion Act could, it is conceived, apply only

2 The same difficulty was experienced in attempting to construe
"municipal institutions" in ttie light, as it was put, of the On-
tario candle only. See iJOSt, p. 791 et seq.

3 Ouunet V. Bazan, 46 S. C. R. 502.
* Ward V. Reid, 22 N. B. 279.

588 CANADIAN CONSTITUTION: SELF-GOVERNMENT.

to actions against justices for non-performance of
duties imposed by Dominion legislation; and could
modify the provincial law to that extent only.

In another case it was made a qucere whether
the Dominion Act relating to costs against jus-
tices is not ultra vires of the federal parliament as
relating to procedure in a civil matter.^ It is diffi-
cult to suggest any principle in denial of the right
of the Dominion parliament, as part of general leg-
islation in regard to criminal law, to pass an Act
protecting magistrates in the exercise of their crim-
inal jurisdiction in the constitutional sense of that
term.

A provision that, in assault cases where the com-
plainant has asked summary disposition of the
charge, a certificate that the charge has been dis-j
missed or that the penalty imposed upon conviction/;
has been satisfied shall be a bar to a civil action forj|
damages, has been held intra vires of the federal
parliament.^^

The Criminal Code (section 534) provides that
the civil remedy for an act shall not be suspended
or affected because the act amounts to a criminal
offence. Is this provision ultra vires?^ As the sus-
pension of the civil remedy was in the interest of
the administration of criminal justice it would seem
that it was a rule of criminal jurisprudence to be
retained or abandoned as the parliament of Canada
might determine.

The following provincial enactments have been
held not to relate to '' criminal law." The Su-
preme Court of New Brunswick upheld the validity
of a provincial Act for the imprisonment in certain

^ Whittier v. Diblee, 2 Pugs. 243.

^"Wilson V. Cofiyre (1886), 26 N. B. 516; Flick v. Brisbin
(1895), 26 0. R. 423.

« Quwre in Pacquet v. Lavoie, 7 Que. Q. B. 277, by Blanchet, J.

THE ADMINISTRATION OF JUSTICE. 589

cases of a person making default in payment of a
sum of money due on a judgment as being a matter
relating to procedure in civil matters and not fall-
ing within the criminal law, or the law relating to
bankruptcy 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
administration of justice, and procedure in civil matters in
the province; all of which are expressly within the jurisdic-
tion of the provincial legislature.^ Having therefore the
right to legislate on these subjects, the 15th sub-section gives
them power to enforce any such laws by imposing imprison-
ment. It would seem, therefore, that the powers conferred
by this Act are directly within the 92nd section of the Act.'^

And . provincial legislation empowering the
Courts to award indefinite imprisonment in certain
events in connection with proceedings by writ of
ca. sa. to enforce a judgment, was held by the Su-
perior Court at Quebec not to fall within ^ ' pro-
cedure in criminal cases," but to be a proceeding
in a civil matter.®

The Crown in the Courts.

It is, of course, beyond the scope of this work,
to deal in any 'large way with the question as to
the administration of justice as between Crown and
subject. But under our federal system, as already

^ Ex p. Ellis, 1 P. & B. 593. The proceedings were under the
common " judgment summons " clauses. Mr. Justice Weldon dis-
sented from the judgment of the majority of the court, the legisla-
tion impugned being, in his opinion, legislation relating to the
criminal law. Imprisonment had been awarded because it ap-
peared from the debtor's examination that the debt had been
fraudulently incurred (one of the cases specified in the Act).
See Peak v. Shields, 6 O. A. R. 639.

^ Compare the language of the judgment (quoted, ante, p. 430),
In the Voluntary Assignments Case.

• Quebec Bank v. To^er, 17 Que. S. C. 303. And see also Parent
V. Trudel, 13 Q. L. R. 189 ; and Re Plant, 37 N. B. 500.

590 CANADIAN" constitution: self-government.

pointed out, the principle of the Crown's indivisi-
bility must be modified by regard to the fact that
the various governments in Canada, federal and
provincial, are distinct statutory entities, depart-
ments, as it were, of His Majesty's government of
Canada and its provinces. In administration each
government comes into direct relation with the in-
dividual. It often, therefore, becomes a legal ques-
tion to which government the subject must look for
compensation for goods sold or services rendered
to the Crown or for redress for wrongs inflicted by
the Crown's servants. Conversely the question
which government is entitled as against the subject
to enforce his contractual obligations to the Crown
or to represent the Crown in proceedings to pre-
vent or punish wrongs done to the public, is a legal
question to be determined by the Courts in each
case in which the point arises.

Then, again, these governments are often
brought into direct relations with each other and it
is often a legal question which government is en-
titled to represent the Crown and to administer its
proprietary rights and enforce its prerogatives in
regard to particular public property ;^" and the con-
troversy as to the jurisdiction of the respective leg-
islatures through which laws are enacted by the
Crown is and doubtless will be ever with us. To
deal first with this phase of the subject: No prac-
tical difficulty has arisen. Except where by statute
the title to Crown property is vested in some pari
ticular official, in which case he would, of course,
be the proper party to sue or be sued,^ His Ma-
esty's Attorney-General, federal or provincial a3

^0 See Atty.-Gen. of British Columbia v. E. & N. Ry., 7 B. C.
221.

^See, for example, the Liquidator's Case (1892), A. C. 437;
61 L. J. P. C. 75, in which the Receiver-General of New Bruns-
wick represented the Crown-provincial.

THE ADMINISTRATION OF JUSTICE. . 591

the case may be, has been uniformly recognized as
the proper party to represent the Crown acting in
right of the Dominion or of a province, as the case
may be. And in a case where the dispute was of a
purely financial character, costs were ordered to be
paid by the Crown to the Crown.^* /

As between Crown and subject, ' the administra- r
tion of justice in the province ' is, as a matter of f
executive action as well as of legislative jurisdic- ■
tion,^ in the hands of the various provincial govern-
ments. This, however, is subject to the paramount
power of the federal parliament, if it see fit, to
legislate as to the administration of justice in re-
gard to any and all subjects within the ambit of its
legislative authority; and there would appear to be
no doubt that such legislation might validly pre-
scribe who should represent the Crown in judicial
proceedings.

In a number of cases the question as to the posi- j
tion in this regard of a provincial Attorney-Gen-/
eral has been discussed. That, at all events in thef
absence of federal enactment to the contrary, he is
the proper officer to represent the Crown in the|
prosecution of criminal charges has not been ser-'
iously questioned and has been recognized by the.
Dominion parliament.^

In Ontario, the late Master in Chambers (Mr.
Dalton, Q.C.) held in 1871* that the Attorney-Gen-
eral of that province was the proper officer to grant
a fiat for the issue of a 8ci. Fa. to question the vali-
dity of a patent, limiting his judgment, however, to
the case of a subject, domiciled in the province,
seeking to avail himself of the peculiar privileges

^''Indian Claims Case (1897), A. C. 199; 66 L. J. P. C. 11.
^ See ante, p. 359.

' See Abraham v. The Queen, 6 S. C. R. 10 ; see also per Strong,
V.C, in Atty.-Genl. (Ont.) v. N. F. Intern. Bridge Co., infra.
*R. V. Pattee, 5 P. R. (Ont.), 292.

592 CANADIAN constitution: self-government.

of the Crown in order to the assertion of his own
private interests. The learned Master desired that
he should not be understood as speaking of a case
where the Crown itself seeks to avoid a patent. On
the other hand, it has been held in Quebec that a
provincial Attorney-General cannot institute such
proceedings ; they, can be legally taken only by the
Attorney-General for Canada.^ It seems difficult to
appreciate the distinction between proceedings for
breach of the criminal law and proceedings founded
on a breach of the Patent Act. The former, per-
haps, fall more properly within the common notion
of the administration of justice.

■ In reference to proceedings against a company
incorporated under Dominion law, for breach of
its charter or for acts beyond its powers or for cre-
ating or niaintaining a nuisance, the cases leave the
question in some doubt. In an early case^ Strong,
V.-C, held that the Attorney-General of a province
is the officer of the Crown who is considered as
present in the Courts of the province to assert the
rights of the Crown, and of those who are under its
protection, and that he, and not the Attorney-Gen-
eral for the Dominion, is the proper party to file
an information when the complaint is, not of an
injury to property vested in the Crown as repre-
senting the government of the Dominion, but of a
violation of the rights of the public of a province.
The information in that case was in respect of a
nuisance caused by the defendant company's inter-
ference with a railway incorporated prior to 1867.
In a later case^ it was held by the Court of Appeal,

^Mousseau v. Bate (1883), 27 L. C. Jur. 153; 3 Cart. 341.

* Atty.-Genl. (Ont.) v. Niagara Falls International Bridge Co.
(1873), 20 Grant 34; 1 Cart. 813.

' Atty.-Genl. (Ont.) v. International Bridge Co., 28 Grant 65;
6 O. A. R. 537; 2 Cart. 559. The judgment of Burton, J.A., alone
deals with the constitutional point. See also Atty.-Gen. {Can.)
V. Ewen, 3 B. C. 468.

I
I

THE ADMINISTRATION OF JUSTICE. 593

reversing the judgment of Spragge, C, that the
non-compliance by a company, incorporated by an
Act of the Dominion parliament, with the terms
of such Act, such non-compliance operating, as was
alleged, to the detriment of the locality in which the
work was being carried on, could not be the subject
matter of an information at the instance of the pro-
vincial Attorney-General.

The Attorney-General of Quebec took action
against a building society incorporated under Do-
minion law in respect of alleged ultra vires trans-
actions in the province, and although the judgment
of the Quebec Courts was reversed by the Privy
Council, no objection was taken, either by Court or
counsel, that the provincial Attorney-General was
not the proper plaintiff.® In a somewhat similar
proceeding against a Dominion company by the At-
torney-General of Canada it was held by the Su-
preme Court of Canada^ that he was entitled to
bring the action; but the Court expressly reserved
the question as to the right of a provincial Attor-
ney-General to institute like proceedings.

In a case which went to the Privy Council in
1895,^^ the Attorney-General of Quebec took pro-
ceedings at the instance of a private relator against
a federal railway company for a nuisance created
by the stopping up of what was alleged to be a
public lane in the city of Montreal ; and in this case
there is, again, no suggestion by Court or (so far as
appears) by counsel, that the provincial attorney-
general was not entitled to institute the proceed-
ings. On the other hand,

^Col. BUg. Assn. v. Atty.-Genl. (Que.), (1884) 9 App. Cas. 157;
53 L. J. P. C. 27; 2 Cart. 275; 3 Cart. 118.

'Dominion Salvage and Wrecking Co. v. Atty.-Gen. (Can.), 21
S. G. R. 72.

" Casgrain (Atty.-Gen.) v. Atlantic & N. W. Ry., 64 L. J. P. C. 88.

CAN. CON. — 38

594 CANADIAN constitution: self-government.

In a case in the Supreme Court of British
Columbia Mr. Justice Irving held that the Attor-
ney-General of that province was not entitled to
take action at the instance of a private relator to
restrain a railway company, originally incorporated
by provincial Act but afterwards brought within
federal jurisdiction as a work for the general ad-
vantage of Canada, from taking steps claimed to be
ultra vires and in alleged violation of its charter;
the allegation, in effect, being that the company was
creating a nuisance in the shape of a railway line
not covered by its charter.^

In this connection reference may be made to a
Quebec case in which the provincial Attorney-Gen-
eral sought to recover moneys due to the Crown.
It was objected that the moneys were due, if at
all, to the Crown in right of the Dominion. Dorion,
C.J., said:

^Admitting that this debt belongs to the Dominion, it
cannot be denied that it must be claimed by and in the name
of Her Majesty, and that the Attorney-General has the right
to appear for Her Majesty in all Courts of justice in this pro-
vince. The question as to which government this sum be-
longs to does not arise here.'^^

With regard to claims against the Crown it will
suffice here to say that where the claim is against
the Dominion government it is to be prosecuted in
the Exchequer Court of Canada; while claims
against provincial governments are governed by
jprovincial statutes providing, as a rule, for proceed-
ings by way of Petition of Eight. "Where com-

^ Atty.-Genh (B.C.) v. TheV. V. & E. Ry. Co. 9 B. C. 338. In addi-
tion to setting aside the order under the provincial Quo Warranto
^Act, as mentioned in the report, Irving, J., also dissolved the
interim injunction (previously granted) on the, ground stated in
the text. Pending appeal the action was settled.

^Mohk \. Ouimet (1874), 19 L. C. Jur. 71. See also per Tas-
chereau, J., at p. 83; also ante, p. 13.

THE ADMINISTRATION OF JUSTICE. 595

plaint is made of unauthorized action threatened
by any Crown official an action lies for a declaration
of the subject's right in the matter and in such an
action the Attorney-General, federal or provincial
as the case may be, is a proper defendant to repre-
sent the Crown. Whether such a declaratory quia
timet judgment will be pronounced in any given
case rests in the discretion of the Court.^

The Courts as Legal Advisers of the Crown.

It is now settled that legislation, federal and
provincial, may impose upon the Courts the duty
of advising the government upon questions either
of fact or law.* This is not the place to discuss
the expediency or inexpediency of such legislation.
The judges have often protested; but the validity
of such enactments was not seriously questioned
until the reference by the Governor-General in
Council to the Supreme Court of Canada in 1910
of certain questions regarding the limits of federal
and provincial jurisdiction in relation to the incor-
poration of companies. The majority of that Court
affirmed the validity of those sections of the Su-
preme Court Act which authorized such references ;^
and the Privy Council took the same view.

As a question of legislative power, therefore, the
matter is now beyond controversy, although some-
times— as the Privy Council has recently remarked
concerning the very questions which gave rise to
the controversy — the task imposed is ^^ an impos-
sible one owing to the abstract character of the ques-
tions put.''^ The answers given, however, are only

^ Dyson v. Atty.-General of England (1911), 1 K. B. 410; 80
L. J. K. B. 531; S. C. (1912), 1 Ch. 158; 81 L. J. K. B. 217.

*Re References (1912), A. C. 571; 81 L. J. P. C. 210; and see
ante, p. 442.

= 43 S. C. R. 536.

® References Case, supra.

596 CANADIAN constitution: self-government.

advisory and will have no more effect than the opin-
ions of the law officers of the Crown/ It has never
been suggested that they should be considered as
judgments ; and it would appear clear that any leg-
islative attempt to give them effect as judgments,
binding either the Court or the parties who might
see fit to appear upon the argument of any such
reference, would be beyond the powers of either the
federal or a provincial legislature. For the Do-
minion or a province to empower a tribunal of its
own choosing to pronounce a binding judgment
upon questions which may or may not have arisen,
which may or may not arise, between the Crown in
right of the Dominion and the Crown in right of a
province would be a rather startling proceeding.
There is nothing in the British North America Act
to support the notion, i;:*rational in itself, that one
party to a dispute, even if that party be a govern-
ment, may without the consent of the other dis-
putant nominate a tribunal to determine that dis-
pute in invitum. That an existing Court before
which similar question might arise in ordinary liti-
gation might be named does not affect the argu-
ment. Any other tribunal might be created or
named if the principle be conceded. But the prin-
ciple seems radically wrong. It is in complete op-
position to the underlying principles upon which
our federal system rests that one government should
as against another and independent government
take upon itself to determine in such fashion as to
it seems meet the method to be adopted for the set-
tlement of the large debateable questions which
must constantly arise between governments under
such a system. There is no federal legislation which
goes this far, but some of the provinces have passed
Acts which purport to make the Court's opinion

^See however, R. v. Brinkley (1907), 14 Ont. L. R. 435 (C.A.)

THE ADMINISTRATION OF JUSTICE. 597

upon a reference a judgment of such Court. The
Full Court in Manitoba in 1901 refused to recognize
the validity of such an enactment,^ following a de-
cision of the Supreme Court of Canada in 1897, in
which it was held that there was no appeal to that
Court from the opinion of the Supreme Court of
British Columbia upon a reference under an Act
of that province although the Act provided that the
opinion should ^^ be deemed a judgment '' of the
Court and appealable as such.^

*Re Manitoba Liquor Act, 13 Man. L. R. 239.

» Union Colliery Co. v. Atty.-Gen. of British Columbia, 27 S. C.
R. 637. Rather curiously, the respondent Attorney-General moved
to quash the appeal on the ground indicated.

CHAPTEE XXIX.

Ckown Peoperty.

The sections of the British North America Act
which bear directly upon the Crown's proprietary
interests in Canada ar§^as follows:

VIII. Revenues; Debts; Assets; Taxation.

102. All duties and revenuas over which the respective
legislatures of Canada, Nova^'S^otia, and New Brunswick
before and at the Union had^and have power of appropri-
ation, 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 conferred on
them by this Act, shall form one consolidated revenue fund,
to be appropriated for the public service of Canada in the
manner and subject to the charges in this Act provided.

107. All stocks, cash, banker's balances, and securities for
money belonging to each province at the time of the union,
except as in this Act mentioned, 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.

108. The public works and property of each province,
enumerated in the third schedule to this Act, shall be the
property of Canada.

THE THIKD SCHEDULE.

Provincial Public Worlcs and Property to he the Property of

Canada.

1. Canals, with land and water power connected there-

with.

2. Public harbours.

3. Lighthouses and piers, and Sable Island.

CROWN PROPERTY. 599

4. Steamboats, dredges, and public vessels.

5. Eive^s) and lake improvements.

6. Eailways and railway stocks, mortgages, and other

debts due by railway companies.

7. Military roads.

8. Custom houses, post offices and all other public build-

ings, except such as the government of Canada ap-
propriate for the use of the provincial legislatures
and governments.

9. Property transferred by the Imperial government, and

known as ordnance property.
10. Armouries, drill sheds, military clothing, and muni-
tions of war, and lands set apart for general public
purposes.

109. All lands, mines, minerals, and royalties belonging
to the several provinces of Canada, Nova Scotia and New
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. All assets connected with such portions of the public
debt of each province as are assumed by that province shall
belong to that province.

♦ * * * * *

113. The assets enumerated in the fourth schedule to this
Act belonging at the union to the province of Canada shall
be the property of Ontario and Quebec conjointly.^

* It is not thought necessary to insert this schedule here. It
may be found in the Act as printed in the Appendix. Section 142
provides for the adjustment of all financial questions between
Ontario and Quebec by arbitration. It has been implemented by
statutory arrangements sanctioned by the federal parliament and
the two provinces. See Indian Claims Case (1897), A. C. 199;
66 L. J. P. C. 11; Common Schools Fund Case (1903), A. C. 39;
72 L. J. P. C. 9 ; Re Arbitration, do., 30 S. C. R. 151; Interest Case.
39 S. C. R. 14; School Fund (Uncollected Sums) Case (1903), A. C.

600 CANADIAN constitution: SELF-GOVERNMENT.

117. The several provinces shall retain all their respec-
tive public property not otherwise disposed of in this Act,
subject to the right of Canada to assume any lands or public
^properly required for fortifications or for the defence of the
country.

126. Such portions of the duties and revenues over which
the respective legislatures of Canada, Nova Scotia, and New
Brunswick had before the union power of appropriation as
are by this Act reserved to the respective governments or
legislatures of the provinces, and all duties and revenues
raised by them in accordance with the special powers con-
ferred upon them by this Act, shall in each province form one
consolidated revenue fund to be appropriated for the public
service of the province.

British Columbia and Prince Edward Island: —
On the admission of these provinces to the Canadian
Union, the British North America Act became ap-
plicable to them as if they had been of the provinces
originally united by the Act, subject to certain
variations which so far as here material may be
shortly stated.^ To aid in the construction of the
Canadian Pacific Eailway, British Columbia agreed
to transfer to the Dominion a large tract of her
Crown lands lying along the route of the railway;
and out of the transfer of this *^ Eailway Belt '*
have arisen some notable disputes which will call
for separate notice later on in this chapter. Prince
Edward Island entered Confederation without any
Crown lands available as a source of revenue. They
had been alienated as Lord Durham afterwards
complained^ ^^ in one day by the Crown in very

39; 72 L. J. P. C. 9 ; School Fund (Constructive Receipt) Case
(1910), A. C. 627; 80 L. J. P. C. 35. The difficulties encountered
in connection with the first attempt at arbitration are shewn in
Be ArMtration, dc, 6 L. J. N. S. 212 ; 4 Cart. 712.

'The Orders-in-Council are printed in full in the Appendix,
post.

'See the author's "History of Canada," 105, 324.

CROWN- PROPERTY. 601

large grants, chiefly to absentees/^ Allowance was
made in the federal subsidy for this lack of revenue-
producing property, and there will be found in the
Order-in-Council admitting the Island some other
provisions as to certain Crown properties which,
however, will not call for further notice.

Manitoba, Alberta, Saskatchewan: — These pro-
vinces have been carved out of the territory trans-
ferred to Canada by the Hudson's Bay Company;
and upon their establishment they were not given
control of the Crown lands within their borders.
Subject to these remarks, what follows in this chap-
ter has application in all the Canadian provinces.
The North-West Territories are, of course, entirely
under federal rule.

Crown Property '^ belonging to '' the Dominion
or a Province: — In an earlier chapter* the position
of the pre-Confederation provinces in reference to
Crown property and Crown revenues within their
borders was discussed. As a necessary part and
parcel of responsible parliamentary government
the assemblies of those provinces had been given
full control and the right to appropriate to the pur-
poses of government Crown property and Crown
revenues as they might deem fitting. But, unless
indeed some statute vested a particular public pro-
perty or species of property in some particular
Crown officer,'' the title to what may be called gov-
ernment property remained then and still remains
in the Crown. What is said of land in the following
passages is, apart from statutory provision to the
contrary, true of . all species of public property;

" In construing these enactments it must be always
kept in view that, wherever public land with its incidents is

* See ante, p. 325 et seq.

^ See the Liquidator's Case, noted ante, p. 25 et seq.

602 CAN-ADIANT CONSTITUTION": SELF-GOVERNMENT.

described as ' the property of ' or as ' belonging to ' the Dom-
inion or a province, these expressions merely import that the
right to its beneficial use, or to its proceeds, has been appro-
priated 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/'^

In a recent case, after quoting the above passage,
Lord Davey, delivering the judgment of the Privy
Council, says:

'^ Their Lordships think it should be added that the right
of disposing of the land can only be exercised by the Crown
under the advice of the ministers of the Dominion or pro-
vince, as the case may be, to which the beneficial use of the
land or its proceeds has been appropriated, and by an instru-
ment under the seal of the Dominion or the province." ^

Residuum of Proprietary Rights Retained hy the
Provinces-. — Section 117 of the Act declares that
the provinces should retain all their public property
not otherwise disposed of in the Act; and whether,
in view of the subsequent phrase ^' lands or public
property,'* the words "' public property '' in the
earlier part of the section should or should not be
taken to cover Crown lands, section 109 clearly
leaves those lands with the provinces in which re-
spectively they were situate. The result, either
way, is as expressed by the Privy Council in the
Fisheries Case:^

"Whatever proprietary rights were at the time of the
passing of the British North America Act possessed by the
provinces remain vested in them, except such as are by any

•/Sff. Cath. Milling Co, v. R., 14 App. Cas. 46; 58 L. J. P. C. 59.

' Out. Mining Co. v. Seybold (1903), A. C. 73 ; 72 L. J. P. C. 5.
See also Farwell v. R., 22 S. C. R. 553:—" The rights of the Crown,
territorial or prerogative, are to be passed under the Great Seal
of the Dominion or Province (as the case may be) in which is
vested the beneficial interest therein."

« (1898), A. C. 700; 67 L. J. P. C. 90. Extract ante, p. 436.

CROWN PEOPERTY. 603

of its express enactments transferred to the Dominion of
Canada."

The Dominion took nothing except by express grant
of the property itself ; and there is no presumption,
for example, that the grant of legislative jurisdic-
tion to the federal parliament over a particular sub-
ject-matter vested any proprietary interest therein
in the Dominion. Legislative jurisdiction over
^* sea coast and inland fisheries '' was not intended
to imply any ownership in the Dominion of the fish-
eries of the lakes, rivers and streams which flowed
thropgh the Crown lands of the provinces ; they are
provincial assets, though subject to the effect of fed-
eral fishery regulations.® And the legislative author-
ity of the parliament of Canada over ** lands re-
served for Indians '* does not operate to divest the
provinces of their beneficial interest in those Crown
lands which are under the burden of the so-called
Indian title.^** How careful tbe Act was in this re-
gard was forcibly put by Mr. Edward Blake in the
case just mentioned:

" Thus, by 91 legislative power is granted over ' militia,
military and naval service, and defence/ But military roads,
ordnance property, armouries, drill sheds, clothing and
munitions of war were not conceived to be so transferred.
Each of them is expressly vested by 108.

Legislative power is granted over ^navigation and ship-
ping.' But there is an express transfer of lighthouses, bea-
cons, buoys, canals, harbours, steamboats, dredges, public
vessels, river and lake improvements.

Legislative power is granted over indirect taxation. But
there is an express transfer of the custom houses.

Legislative power is granted over the ^ postal service.' But
there is an express transfer of the post offices.

* Fisheries Case, supra.
^^ Indian Lands Case, 14 App. Cas. 46 ; 58 L. J. P. C. 59.

604 CANADIAN" constitution: self-government.

Legislative power is granted over ^the public property/
But there is an express transfer of land set apart for gen-
eral public purposes.

Legislative power is granted over ' Sable Island.' But
there is an express transfer of Sable Island."

It will be convenient, therefore, to deal first with
the question: what public property of the pre-Con-
federation provinces was transferred to the Do-
minion ?

Measure of Control: — First, however, it should '
be pointed out that, while legislative jurisdic-
tion does not carry with it proprietary rights,
the converse proposition is not true. In other
words, property belonging to the Dominion or
to a province is within the independent and ab-
solute control of the Dominion or provincial
government as the case may be. Provincial Crown
property cannot be taken from the province by the
federal authorities or by any person or corporation
acting under federal legislation; the one exception
being that indicated in section 117 of the British
North America Act : Canada may assume any lands
or public property required for fortifications or for
the defence of the country. As against tbe indi-
vidual, either government, federal or provincial,
may for purposes within its jurisdiction exercise or
empower others to exercise a power of expropria-
tion if thereto authorized by statute; as against
each other no such power is conferred by the Brit-
ish North America Act with the one exception
noted. This phase of the subject has, however,
been already discussed.^

* See ante, p. 386, et seq.

crown property. 605

Dominion Government Propeety.

The enquiry, of course, is not as to property
acquired by the Crown in right of the Dominion
since Confederation either by gift, purchase, or ex-
propriation, for purposes within federal jurisdic-
tion. The question is simply, as already indicated:
what public property of the pre-confederation pro-
v^inces was transferred to the Dominion of Canada?
And no practical question now arises except under
section 108 and its schedule as already quoted.^

For Federal Purposes : — A perusal of the items
set out in the schedule to section 108 discloses, as
one might expect, that the property transferred
to Canada was property of the kinds needed and
in use for those purposes of government which
the parliament of Canada was thereafter to carry
out and control. As put by Lord Watson in
his oft quoted judgment in the Liquidator's Case^
the British North America Act accomplished the
object of its framers:

" By distributing, between the Dominion and the Pro-
vinces, all powers, executive and legislative, and all public
property and revenues which had previously belonged to the
Provinces; so that the Dominion Government should be
vested with such of these powers, property and revenues as
were necessary for the due performance of its constitutional
functions, and that the remainder should be retained by
the Provinces for the purposes of the Provincial Government."

The general principle of distribution thus indicated
should of course be borne in mind, but whether this
should result in the case of any particular item in
a liberal or a restrictive interpretation of the lan-
guage used, may be a question. The former was
strongly but unsuccessfully urged, for example, in

^^See ante, p. 598-9.

' (1892), A. C. 437; 61 L. J. P. C. 75.

606 CANADIAN constitution: self-government.

the case of item No. 5, ^^ rivers and lake improve-
ments/' in support of the contention that all rivers
themselves and not merely the public improvements
upon them were the property of Ganada.^^ And
there is another phrase, namely, *^ lands set apart
for general public purposes '' (item No. 10) which
obviously calls for the application of the above
principle to restrict the meaning to federal public
purposes. There is however no reported case in
which question has been raised as to the scope of
this phrase or of the phrase '^ all public buildings "
in item No. 8 ; the governments concerned having ap-
parently adjusted any differences upon these items
amicably. Buildings, particularly, might be used
before Confederation for several public purposes
which after Confederation would fall within differ-
ent spheres of authority. How far and with what
result the principle above indicated is to be applied
in regard to those items which are still to be con-
sidered controversial topics, may be worth consider-
ation. The most important item and the one which
has created and still creates most dispute is item
No. 2.

Public Harboues.

The Soil Transferred: — Putting aside for the
moment the two questions : what is a harbour ? and
what constitutes a harbour a public harbour? this
much is settled law, that the transfer effected by
section 108 was more than of a franchise; it was a
transfer of full ownership in the soil, so far as it
was Crown property, under public harbours, the
Crown's title thereto usque ad coelum, usque ad
centrum, being held after Confederation in right of
the Dominion and being thereafter alienable only

^''Fisheries Case (1898), A. C. 700; 67 L. J. P. C. 90; see ante,
p. 368. The argument is more fully stated in 26 S. C. R. 444.

CROWN PROPERTY. 607

on the advice of the Crown's federal ministers by
grant under the Great Seal of Canada or otherwise
as might be determined by federal law. This pro-
position was involved in a decision of the Supreme
Court of Canada in 1881 concerning the harbour of
Summerside in Prince Edward Island.* A grant of
certain Crown property on the foreshore of that
harbour made by the provincial government in the
usual way — by grant under the Great Seal of the
province — was held invalid. This view was after-
wards re-affirmed upon the reference in the Fisher-
ies Case and upheld by the Privy Council.^ The
Board, it is true, expressed the opinion that the Su-
preme Court of Canada had erred in laying down
as a universal proposition that the foreshore or
the whole foreshore of a public harbour is part of
the harbour; but that the bed of the sea under all
public harbours, whatever is properly comprised
within that term, became vested in the Dominion
was expressly affirmed.

Not Limited to Harbours Artifically Created at
the Public Expense : — Summerside harbour was ad-
mittedly a natural harbour, neither created nor im-
proved as such, although there was a wharf there
which had been built by the government before Con-
federation. The Supreme Court of Canada, how-
ever, expressly declined to construe the words
** public harbours " as covering only harbours
which had in a special sense become public property
by being created or improved as harbours at the
public expense; and there is nothing in the judg-
ment of the Privy Council in the Fisheries Case to
cast a doubt upon the correctness of the decision of
the Supreme Court of Canada upon this point. And

*Holman v. Green, 6 S. C. R. 707.

"26 S. C. R/444; (1898) A. C. 700; 67 L. J. P. C. 90.

608 CANADIAN constitution: self-government.

in the lateY Vamcouver Harbour C as e^ there was no
suggestion of government expenditures to make or
improve the harbour, either as a harbour or in any-
other way. What the Board said about public har-
bours in the Fisheries Case was this:

" With regard to pubHc harbours, their Lordships enter-
tain no doubt that whatever is properly comprised in this
term became vested in the Dominion of Canada. The words
of the enactment of the third schedule are precise. It was
contended on behalf of the provinces that only those parts
of what might ordinarily fall within the term ^ harbour ' upon
which public works had been executed became vested in
the Dominion, and that no part of the bed of the sea did so.
Their Lordships are unable to adopt this view. The Supreme
Court in arriving at the same conclusion founded their opin-
ion on a previous decision in the same Court in the case of
Holman v. Green (1882), where it was held that the fore-
shore between high and low water niark on the margin of
the water between the property of the Dominion as part of
the harbour.

" Their Lordships think it extremely inconvenient that a
determination should be sought of the abstract question, what
falls within the description * public harbour.' They must
decline to attempt an exhaustive definition of the term,
applicable to all cases. To do so would, in their judgment
be likely to prove misleading and dangerous. It must de-
pend, to some extent at all events, upon the circumstances of
each particular harbour, what forms a part of that harbour.
It is only possible to deal with definite issues which have
been raised. It appears to have been thought by the Supreme
Court, in the case of Holman v. Green, that if more than the
public works connected with the harbour passed under that
word, and if it included any part of the bed of the sea, it
followed that the foreshore between the high and low water
mark, being also Crown property, likewise passed to the
Dominion.

" Their Lordships are of opinion that it does not follow
that because the foreshore on the margin of a harbour is

• (1906) A. C. 204; 75 L. J. P. C. 38; 11 B. C. 289. See also
Lake Simcoe Ice Co. v. McDonald, 26 Ont. App. R. 411.

CROWN^ PEOPERTY. 609

Crown property it necessarily forms part of the harbour. It
may or may not do so, according to circumstances. If, for
example, it had actually been used for harbour purposes, such
as anchoring ships or landing goods, it would no doubt form
part of the harbour; but there are other cases in which, in
their Lordships' opinion, it would be equally clear that it
did not."

There is nothing in this passage to suggest a doubt
as to the correctness of the view expressed by the
Supreme Court of Canada in Holman v. Green that
the word '' public " has reference solely to the
right of user. A public harbour is a harbour which
the public have a right to use."^ It has been sug-
gested that the word ' ' public ^ ' might have been in-
tended to indicate harbours which had been de-
clared such by the Crown in the exercise of its pre-
rogative right to establish ports and grant port
franchises f but there is nothing in the cases to
support such a limited interpretation, and it is very
doubtful if there were or could be any such ports
in Canada at the date of Confederation.®

Private Ownership not Touched: — The transfer
was, of course, of public property only. Accord-
ingly, the harbour of St. John, N.B., has been held
not to be a ^^ public harbour '^ within section 108,,
being vested in the municipality. Nevertheless, the
Attorney-General of Canada may file an informa-
tion to prevent any obstruction to its navigation;
but so long as drainage into it, authorized by pro-

' See Atty.-Gen. of Canada v. Ritchie, dc, Co. (1914), 20 B. a
333, the English Bay Case, referred to later: per Macdonald, J.

* Lefroy, ' Canadian Federal System,' 691.

^ See ante, p. 123 et seq. as to prerogative rights in a colony-
having a local assembly. In 1867 there were, of course, harbours
recognized in, if not created by, statutes: e.g., Toronto and Co-
bourg on Lake Ontario, and St. John in New Brunswick. See
Brown v. Reed, 2 Pugs. 212.

CAN. CON. — 39

610 CANADIAN constitution: self-government.

vincial Act, creates no such obstruction, an injunc-
tion will be refused.^^

The Date of Union the Material Date: — The
judgment of the Privy Council in the Vancouver
Harbour Case^ is founded upon the manifest view
that the date upon which the province concerned
entered the Union is the date to be considered. The
Crown's title is not subject, as it were, to a shifting
use; yesterday for a province, to-day for the Do-
minion. It was fixed at the date of Union. The
enquiry in that case was again as to the foreshore,
no doubt being suggested as to the existence of a
public harbour in front of the city. The trial judge,
Mr. Justice Duff, treated as a question of fact to be
enquired into as of the 20th July, 1871 — the date
of British Columbia's entry into the Union — whe-
ther or not the part of the foreshore in question
had been in use as part of the harbour; and this
method of enquiry was upheld by the Judicial Com-
mittee. If proper as to the foreshore, the same en-
quiry must be entered into in every case as to what
may be called the harbour proper.^ Was it a public
harbour at the date of the Union? And this is where
the chief difficulty appears.

What is a Harbour? Lord Esher, M.K., is re-
ported as having defined a harbour as —

" A place to shelter ships from the violence of the sea and
where ships are brought for commercial purposes to load and
unload goods/' ^

" St. JoTin Gas Light Co. v. R., 4 Ex Ct. R. 326.

^ (1906) A. C. 204; 74 L. J. P. C. 38; 11 B. C. 289.

= In the Full Court of British Columbia, Hunter, C.J., had ex-
pressed the view that the jurisdiction of the parliament of Canada
was " latent " and would attach to any inlet or harbour as soon
as it becomes a public harbour and is not confined to such public
harbours as existed at the union. With due respect, there seems
to be confusion here between legislative jurisdiction and proprie-
tary rights.

^R. V. Hannam (1886), Times L. R. 234.

CROWN PROPERTY. 611

Coulson (& Forbes * define it thus :

"A harbour or haven is a place naturally or artificially
made for the safe riding of ships. A port is a haven and
something more, — it is a harbour where customs officers are
established and where goods are either imported or exported
to foreign countries and comprehends a city or borough called
caput portis with a market and accommodation for sailors."

Lord Esher's definition, it will be seen, gives to
a harbour some of the characteristics of a port;
and, as will appear later, the question of commer-
cial user is probably an element to be considered.

There is a still further question suggested by
the cases. If * harbour ' is to be construed as a
haven of safety, merely, and ^ public liarbour ' as
a haven which the public have the right to use, then
■ — apart from the question as to the foreshore — the
date of entry into the Canadian Union would be of
no practical importance. The question would be
one of geographical or physical configuration
merely as to which dates would be ordinarily out
of place. The matter is obviously one of great mo-
ment to all the maritime provinces of Canada and
particularly so to British Columbia with its deeply
indented coast line. There were in 1871 thousands
of public harbours in that province if configuration
merely is the test.

Then, again, if actual user, and not mere adapt-
ability for use, is the proper test — but user as a
haven of refuge only — the difficulty is not removed,
for there is hardly a haven on any part of the coast,
Atlantic or Pacific, that had not been sought at
some time before Confederation as a refuge from
wind and sea; though proof might be difficult now
and still more difficult as the years go by. Even
if the user must be shewn to have been a matter

* 3rd ed. 464, citing Hale, De Portibus Maris, cap. 2, 11, and
Houck, Navigable waters, 175.

612 CANADIAN constitution: self-government.

of custom, but a customary user as a haven of ref-
uge merely, the difficulty would be lessened, but
would obviously still be great. What amount of
user? and by how many? in what sort of craft?
and how about user by the Indian subjects of the
Crown 1

If, on the other hand, the notion of a port is
covered by the words ^' public harbour,'' that is to
say, if a public harbour, as meant in section 108, is
a place to which ships were at the date of Union
accustomed to resort not merely for shelter but for
purposes of commerce, to load and unload goods,
the difficulty while not entirely removed would be
reduced to a minimum. In this view, the two ele-
ments of shelter and customary commercial user
would have to be taken into consideration. And
this view would seem to be that indicated in the
judgment of the Privy Council in the Fisheries
Case where reference is made to user of the fore-
shore for ^^ harbour purposes, such as anchoring
ships or landing goods.'' It is also supported by
the collocation of '^ public harbours " with items
relating to navigation and shipping in a commer-
cial sense : canals, on the one hand, and lighthouses
and piers, dredges, and river and lake improve-
ments, on the other; all being items of public pro-
perty held and used for the benefit of those en-
gaged in maritime commercial pursuits.

Harbour Boundaries : — Taking the date of Union
as the material date, the question whether a par-
ticular body of water was or was not at that date
a public harbour, and, if so, what were then its boun-
daries seaward and landward, must be a question of
fact. As to the foreshore this has been so held;*^
and it would seem clear that the proposition must

^ Yancouver Har'bour Case; see ante, p. 610.

CROWN PROPERTY. 613

apply equally to determine the harbour boundaries
seaward. The result is that the question is one
often very diJBficult of solution, depending on evi-
dence as to facts which are daily becoming more
obscure and hard to ascertain. It is a matter upon
which there is no pronouncement binding in all the
provinces and for that reason each province has to
consider the decisions of its own Courts.

Provincial Decisions : — In Nova Scotia the ques-
tion has been before the Courts several times. In
1885, the Full Court disregarded a provincial Crown
grant of the foreshore at a spot in St. Margaret's
Bay thus described by Thompson, J.:

" It is the shore of a narrow creek or cove into which small
vessels may pass as far as the locus extends but which has
only been used by such vessels to approach lumber mills on
rivers flowing into this creek, the practice being to carry the
lumber down to be laden on board in the creek. . . This
creek or cove I do not regard as a part of those waters which
form any of the recognized harbours in St. Margaret's Bay.
It is one of the many small inlets which abound on the shores
of the bay and which have neither the name nor character
of public harbours." ^

However, it was thought advisable to leave to a
higher authority the drawing of a distinction in
legal principle between ^^ such a piece of coast and
the shore of a harbour like Summerside. ' ' It will
be noticed that attention was paid not merely to
the physical configuration but to the user of the
bay for commercial purposes at that particular cove
or inlet.

In 1891, a provincial grant was held inoperative
for the reason that the land covered by it was
*^ situate in the navigable waters of Sidney Har-
bour.'' No serious question, however, was made

« Fader v. Smith 18 Nova Scotia R. 433. St. Margaret's Bay
as a whole appears again in Young v. Harnish; see post, p. 615.

614 CANADIAN constitution: self-government.

upon this feature of the case, the defendants being
held both in the provincial Court and in the Su-
preme Court of Canada to be estopped from deny-
ing their grantor's title as against the plaintiff, his
widow, who claimed dower/ In 1904, question again
arose as to Sidney Harbour but this time as to one
of its upper reaches.^ That some part of the har-
bour was a ^^ public harbour '' within the meaning
of section 108 was not doubted. The character of
the particular part in question is thus indicated in
the judgment of the Full Court delivered by Town^
shend, J. :

" While up to the present very little, if any, use has been
made of the harbour as far south as the locus and such
v\^harves as have been built were merely for private use, yet
the harbour is there quite navigable and suitable for shipping
and trade purposes.^^

The opinion was ventured that in time the locus
would be required for such purposes; and in that
view the Court thought it would not be reasonable to
hold that a portion of the harbour was not within
section 108 because it had not yet come into use for
commercial purposes although the evidence shewed
its ^ ^ capacity and adaptability ' ' for such purposes.
Sidney Harbour was, of course, the recognized geo-
graphical name long prior to 1867 of a fairly well
defined and distinct sheet of land-locked water
though of irregular outline ; and this fact may have
a bearing if it were attempted to apply the prin-
ciple adopted by the Nova Scotia Court to the many
more or less land-locked inlets, for example, of
British Columbia which have at some place upon
their shores a wharf or some other landing for
commercial purposes.

'Sword V. Sidney Coal Co., 23 Nova ETcotia R. 214; 21 S. C. R.
152.

' Kennelly v. Dom. Coal Co., 36 N. S. 495.

CROWN PEOPERTY. 615

In the same year (1904) it was held that al-
though St. Margaret's Bay was ^^ very likely '' a
public harbour nevertheless the Dominion Govern-
ment could not grant an exclusive right of fishing
in its waters;^ but, apart from the necessity for
statutory authority, this view seems erroneous and
inconsistent with that full proprietary interest in
the soil which the Dominion undoubtedly has and
of which the right of fishing is part.^^

In New Brunswick question arose in 1897 as to
the validity of a license granted by the federal
authorities under the Fisheries Act to fish in the
waters of Dark Harbour on the island of Grand
Manan/ It had been originally a fresh water lake
or pond, but before Confederation, a channel had
been cut — largely at the public expense — through
the low sea wall which separated it from salt water.
Thereafter the tide ebbed and flowed on it, fish
came in, and the harbour was used both for shelter
and for commercial purposes; but as to this latter
it was apparently in doubt whether, apart from fish-
ing, it had not been so used exclusively by the plain-
tiff who owned the land on its shores. The harbour
was held to be a public harbour within section 108
and the Court inclined to the view that commercial
user need not be shewn, a distinction being drawn
in this regard between a harbour and a port.^ Tuck,
J., expressed himself definitely as of opinion that it
was not necessary that a harbour, in order to be

^ Young v. HarnisJi, 37 N. S. 213. See the comment on this
case in Miller v. Welter (1910), 8 E. L. R. 460.

'°J?e B. C. Fisheries (1914), A. C. 153; 83 L. J. P. C. 169. In
the Vancouver Harbour Case, 11 B. C. 289, Hunter, C.J., had ex-
pressed the view that the ownership of the Dominion was a
qualified property right and did not extend ad centrum. The
province, he thought, would own a copper mine under a public
harbour,

"^Nash V. Newton, 30 N. B. 610.

2 See ante, pp. 610-11.

616 CANADIAN constitution: self-government.

properly so, called, should be used for commercial
purposes. The plaintiff failed in making proof of
his own title and therefore decided expressions of
view upon the other points were not called for or
given, except as above indicated.

In the Court of Appeal for Ontario, Burton,
C.J.O., expressed the opinion that the term '' public
harbour " is not restricted to those harbours which
at the time of Confederation had been artificially
constructed or improved at public expense, and in-
stanced Halifax Harbour. In that case^ a small
bay in Lake Simcoe at which there was a wharf
permissively used, but no mooring ground, and little
shelter except from an off-shore wind, was held by
the Court of Appeal not a public harbour. This
question was not passed upon in the Supreme Court
of Canada. Assuming a provincial grant of the
locus in quo to be valid the majority of the Court
held that the reservation in the grant, *^ subject to
rights of navigation," included the right to cut a
channel through the ice in order to float into shore
ice cut farther out in the bay.

In another case in Ontario the view was ex-
pressed by the late Mr. Justice Street that the Sault
Ste. Marie Eiver in front of the town of that name
was not a public harbour simply because there were
wharves along it.* He was apparently of opinion
that the ownership of a harbour ^^ does not involve
an ownership of the soil under the water '^ but he
may have had in his mind merely the question as to
what is the boundary off-shore of a public harbour ;
otherwise the view expressed seems clearly unten-
able in the face of Holman v. Green.^

^ Lake Simcoe Ice Co. v. McDonald, 26 Ont. App. R. 411; 31
S. C. R. 130.

* Perry v. Clergue (1903), 5 Ont. L. R. 357. See Pickels v.. R.,
14 Ex. Ct. R. 379, noted post, p. 619.

^ See ante, p. 607.

CROWN PROPERTY. 617

Federal ownership of public harbours does not
operate to prevent their inclusion within municipal
boundary lines, and municipal by-laws validly en-
acted will have their due operation over the har-
bour. '^ For purposes within the ambit of provin-
cial legislation they are within the jurisdiction of
the province and its legislatures, provincial and
municipal. ' ' Local prohibition of the sale of liquor
within the town was accordingly held to cover the
harbour.®

In British Columbia in 1889 an injunction was
granted at the instance of the Attorney-General of
Canada to restrain the driving of piles in the bed
of False Creek, an arm of English Bay running into
the heart of the city of Vancouver. It was held to
be a public harbour, but as of what date and upon
what evidence does not clearly appear. The trans-
fer effected by section 108 was considered by
Crease, J., as covering both the franchise of public
harbours and the ownership of the soil within their
boundaries.®^

In 1899 question was raised between private
litigants as to the title to the coal under Nanaimo
Harbour, which had undoubtedly been used as a
harbour both for shelter and for commerci-al pur-
poses long before 1871. The Attorney-General of
the province brought action ®^ to stay the litigation
on the suggestion of the Crown's interest. The
private action was stayed accordingly, the majority
of the Court declining to determine the question as
between the province and the Dominion as a pre-
liminary to granting a stay. Martin, J., dissented

«i2e Sturmer & Beaverton (Town), 24 Ont. L. R. 65. The
judgment of Middleton, J., as above indicated was upheld by a
Divisional Court (Boyd, C, Teetzel, and Latchford, JJ.), with a
simple expression of concurrence therein on this point.

"'' Atty.-Gen. of Canada v. Keefer, 1 B. C. (pt. 2) 368.

«'' Atty.-Gen. of British Columbia v. Esquimau d N. Ry. et al.,
7 B. C. 221.

618 CANADIAN constitution: self-government.

holding that the Crown in right of the province
should make out a prima facie case at least of title
to the soil of the harbour. That it had no property
therein he thought too plain for serious argument.
The soil not only of the bed proper but of the fore-
shore^ was, in his opinion, the property of the Crown
in right of the Dominion in full ownership including
minerals and all else. It had been argued that the
transfer of '^ Military Eoads '^ (item 7 of section
108) was a transfer of a modified interest only so
far as necessary to give the right of superficial con-
trol, and that the same view should be taken as to
public harbours. The argument, however, did not
find favour ; although in a later case, as already no-
ticed,^ it commended itself to Hunter, C.J.

In the Vancouver Harbour Case already re-
ferred to® Burrard Inlet, from the First to the
Second Narrows, was considered by Mr. Justice
Duff to have been a public harbour at the Union
(1871) ; but the question was limited, so far as the
foreshore was concerned, to the immediate water
front at certain '^ street ends '' of the City of Van-
couver. These were held to be part of the public
harbour ^^ as was the whole of the foreshore adjoin-
ing the townsite of Granville " (now part of Van-
couver). This finding of fact was upheld by the
Privy Council.

In a recent case, English Bay, of which False
Creek and Burrard Inlet are arms covered by the
foregoing cases, was held not to have been a har-
bour at all even as a customary haven of refuge
from wind and sea.^^ The date of British Columbia's

^ The quaUfication upon this point which the Privy Council laid
down in the Fisheries Case (see ante, p. 607) is not noticed in the
judgment.

* See note 10, ante, p. 615.

^ See ante, p. 610. See also Vancouver (City) v. Can. Pac. Ry.
23 S. C. R. 1.

^'^ Atty.-Gen. of Canada v. Ritchie, dc, Co. (1914), 20 B. C. 333.

CROWN PROPERTY. 619

entry into the Union (20th July, 1871) was re-
garded as the material date and the evidence was
directed to show the condition of affairs then. The
delimiting of the boundaries of the Port of Van-
couver by Order-in-Council under the Canada Ship-
ping Act (E. S. C, cap. 113, sec. 850) had therefore
no bearing on the enquiry. The judgment, however,
was really based upon the configuration of the bay,
which made it in no reasonable sense a harbour,
though there were, as already intimated, two public
harbours off its eastern end.

It was held by the Exchequer Court of Canada
that where, prior to Confederation, a water lot
fronting on Quebec Harbour had been granted by
the Crown with a reservation of the right to resume
possession in certain events, such right was, after
1867, exerciseable in right of the Dominion.^

And in a recent case in the same Court Mr. Jus-
tice Audette had occasion to consider a claim put
forward in regard to a part of the river front of
the Annapolis River in Nova Scotia.^ It was con-
tended by the Crown in right of the Dominion that
Annapolis Harbour (or Basin) extended up river
beyond the property held by the suppliant under a
provincial Crown grant issued since 1867 and that,
therefore, he had no title. This contention was
overruled. The date of Confederation was taken
as the material date and the erection since then by
the federal government of wharves along the river
above the suppliant's property was therefore im-
material. In any case such erections would not
make of a river a public harbour, ^^ not any more
than all the wharves on the coast from Belle Isle
to Quebec would make that part of the St. Law-
rence a public harbour. ''

^ Samson v. R., 2 Ex. Ct R. 30.
rPickels V. R,, 14 Ex. Ct. R. 379.

620 CANADIAN constitution: self-government.

Under a pre-confederation statute provision
was made for a Board for the management of Tor-
onto Harbour. In 1881, Spragge, C, held the Har-
bour Commissioners to be trustees within the mean-
ing of the Ontario Trustees Act and accordingly
entertained an application to fix their remunera-
tion.^

Canals, with land and water power connected there-
with.

EiVEKS AND Lake Impkovements.

It is now definitely settled that river improve-
ments and not the rivers themselves vest in the
Dominion.* Consequently, the soil of the river bed
of the Ottawa Eiver is vested in the provinces of
Quebec and Ontario, each ad medium filiim, and not
in the Dominion.^

And in a case in the Exchequer Court of Can-
ada the late Mr. Justice Burbidge held that the
transfer to the Dominion of the Cornwall Canal
did not operate to give it any proprietary interest
in the St. Lawrence Eiver from which the canal is
fed.^ Eef erring to section 108, item No. 1, he said:

" There is nothing in that, I think, to give the Dominion
any proprietary right in the river from which the water is
taken, beyond the right to take the water."

In a statute of the old province of Canada re-
specting public works a schedule of them appears,
and under the heading ^^ Navigations, canals and
slides ' ' there is the following item : * ^ All those por-

* Re Toronto Harlour Commrs., 28 Grant, 195.

^Fisheries Case (1898), A. C. 700; 67 L. J. P. C. 90. See ante,
p. 368.

" Hurdman \: Thompson, Que. L. R. 4 Q. B. 409. See post, p.
628, as to provincial ownership of the beds of rivers.

« Macdonald v. R., 10 Ex. Ct. R. 394.

CROWN PEOPERTY. 621

tions of the St. Lawrence navigation from King-
ston to the Port of Montreal improved at the ex-
pense of Canada." The suppliant's claim was for
damages alleged to have been suffered on a public
work. The accident had happened as a matter of
fact on the river, but the above schedule was relied
on as making the entire '' navigations " between
the points mentioned a public work. Mr. Justice
Burbidge, however, held that only improvements
passed by virtue of section 108, following the
Fisheries Case.

Government Railways.

It has been held by the Privy Council that the
Dominion government acquired provincial railways
— i.e., government railways — subject to all claims
against them, or, in other words, for no larger in-
terest than the province had in theni."^ Whether
the parliament of Canada could afterwards legis-
late in derogation of claims against such railways
or obligations incurred by a province in respect of
them before Confederation, was a question upon
which the Board refrained from expressing any
opinion. In the Court below Ritchie, J., had ex-
pressed the view that such legislation would be in
relation to ^* property and civil rights in the pro-
vince '^ (section 92, No. 13) and therefore beyond
federal competence.

Property transferred by Imperial Government.

Section 108, item 9, had reference, of course, to
ordnance property which at the date of the Union
had already been transferred to the pre-confedera-
tion governments.^ After the Union, however, there

^ Western Counties Ry. v. Windsor, i&c., Ry., 7 App. Cas. 178 ;
51 L. J. P. C. 43; 2 Rus.. & Geld. 280 (Nova Scotia R.).
« See Kennedy v. Toronto, 12 Ont. R. 201.

622 CANADIAN constitution: self-government.

were still lands in different parts of Canada held
by the Crown in right of the Empire. These, it is
thought, have all since been transferred to Canada.
For example, Deadman's Island in Vancouver Har-
bour was held by the Privy Council to be part of a
imilitary or naval reserve set apart in Sir James
Douglas' time by the imperial authorities and, af-
ter the Union, transferred to the Dominion. The
claim of the province to its ownership was accord-
ingly denied.^

The ^' Eailway Belt ^' in Bkitish Columbia.

The terms of Union embodied in the imperial
Order-in-Council admitting British Columbia into
the Dominion of Canada ^^ have effect as an im-
perial statute by virtue of section 146 of the British
North America Act. Amongst the terms so em-
bodied are these:

11. The government of the Dominion undertake to secure
the. commencement simultaneously, within two years from
the date of the union, of the construction of a railway from
the Pacific towards the Eocky Mountains, and from such
point as may be selected east of the Eocky Mountains, towards
the Pacific, to connect the seaboard of British Columbia with
the railway system of Canada; and further, 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 appropriated in
such manner as the Dominion government may deem advis-
able in furtherance of the construction of the said railway, a
similar extent of public lands along the line of railway
throughout its entire length in British Columbia (not to
exceed, however, twenty miles on each side of said line),

^ Atty.-Gen. of British ColumMa v. Atty.-Gen. of Canada (1906),
A. C. 552 ; 75 L. J. P. C. 114.
" In Appendix.

CROWN PROPERTY. 623

as may be appropriated for the same purpose by the Domin-
ion 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 made good to the Dominion from con-
tiguous public lands; and provided further, that 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 or 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 construction of the said railway, the Dominion govern-
ment agree 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.

The Dominion failed to secure the commence-
ment of the contemplated railway within two years.
In fact there was a much longer delay, and, as a
result, much dissatisfaction in British Columbia.
In the end, however, certain modifications of the
original terms were agreed upon and that agree-
ment was ratified by both legislatures. By the pro-
vincial Act, passed on 19th December, 1883,^ it was
enacted :

" From and after the passing of this Act there shall be
and there is hereby granted to the Dominion Government for
the purpose of constructing and to aid in the construction of
the portion of the Canadian Pacific Railway on the main-
land of British Columbia, in trust, to be appropriated as the
Dominion Government may deem advisable, the public lands
along the line of the railway before mentioned, wherever it
may be finally located, to a width of twenty miles on each
side of the said line as provided in the order in council, sec-
tion 11, admitting the province of British Columbia into
confederation; . . ."

M7 Vict. c. 14 (B. C).

624 CANADiAJ^ constitution: self-government.

In lieu of a grant of ^^ contiguous public lands "
to make good to the Dominion any lands in the belt
already alienated under pre-emption right or
Crown grant, a compact block of three and one half
million acres in the Peace Kiver region was to be
transferred to Canada. On Vancouver Island a
large area of land ^^ including all coal, coal oil,
ores, stones, clay, marble, slate, mines, minerals,
and substances whatsoever thereupon, therein, or
thereunder " was also transferred to the Dominion
Government to aid in the construction of the Island
branch, known as the Esquimalt and Nanaimo Eail-
way.

Section 109 of the British North America Act
provides that '* all lands, mines, minerals, and roy-
alties '' shall belong to the provinces in which they
are respectively situate, and the word '^ royalties '^
has been held to cover the Crown's prerogative
right to the precious metals.^ But the words ' ' pub-
lic lands " in the provincial statute above men-
tioned have been held by the Privy Council not to
include 'the precious metals which therefore con-
tinue to belong to the Crown in right of the pro-
vince.^ As put by Lord Watson, although they are
within the meaning of the word ^^ royalties " even
if that word in section 109 is to be limited to royal-
ties connected with land, nevertheless they are not
partes soli, but are held under prerogative title.
Words of express grant are required to pass them;
and, therefore, even the wide words, as quoted
above, of the section of the provincial Act which

^ " By the common law, all mines of gold and silver within
the realm belong to the Crown; so also mines of copper, tin, lead,
iron or other base metal, if they contain aliquid auri aut argenti :
Comyn's Digest, Waife, H. 1. But by statute 1 Wm. & M., c. 30, s.
4, no mine of copper, tin, iron, or lead shall be taken to be a
royal mine, although gold or silver may be extracted out of the
same." Forsyth, 177.

^Precious Metals Case, 14 App. Case. 295; 58 L. J. P. C. 88.

CROWN PEOPERTY. 625

granted the Vancouver Island railway belt to the
Dominion were held equally ineffectual to transfer
the precious metals in the belt, for they do not pass
with the freehold.*

There is some uncertainty as to the date upon
which the transfer under the provincial Act took
effect. It was passed, as already mentioned, on
19th December, 1883. The Dominion Act ratifying
the modified Terms of Union was passed on 19th
April, 1884.' The date when the line was '' finally
located '' does not appear to have been judicially
determined, although Mr. Justice Strong spoke of
it in one case as " a fact of common notoriety '^
that this date was prior to 15th January, 1885. No
ease is reported in which it became necessary to de-
termine as between these date.®

The entire beneficial interest in everything
which was transferred passed from the province to
the Dominion; and it has been held by the Privy
Council that the soil and everything which goes
with the soil, including the beds of the rivers and
lakes within the belt, water rights, and rights of
fishing (except in tidal waters), became vested in
the Crown in right of the Dominion.^ In the Pre-
cious Metals Case,^ Lord Watson expressed the
view that when the Dominion had disposed of the
land to settlers it would cease to be public land un-
der federal control and would revert to the same
position as if it had never passed from provincial
control ; but in the last case before the Privy Coun-
cil upon this subject their Lordships expressly

* Esquimau d N. Ry. v. Bainhridge (1896), A. C. 561; 65 L. J.
P. C. 98.

M7 Vict, c. 46 (Dom.)

"See George v. Mitchell (1912), 17 B. C. 531.

' Burrard Power Co. v. R. (1911), A. C. 87; 80 L. J. P. C. 69
(water rights) ; Re B. C. Fisheries (1914), A. C. 153; 83 L. J. P.
C. 169 (fishing, river beds, &c.); and see R. v. Farwell, 14 S. C.
R. 392.

« 14 App. Cas. 295 ; 58 L. J. P. C. 88.

CAN. CON. 40

626 CANADIAN constitution: self-government.

noted that they had not to '^ consider questions
which might arise if this had taken place.'' But in
an earlier case such a situation had arisen in refer-
ence to the belt on Vancouver Island. That belt
had been granted by the Dominion to the Esquimalt
and Nanaimo Eailway Co., which was to construct
the Island line; and thus had become private pro-
perty. A provincial Act was passed which provided
for the issue of provincial Crown grants to any
settler who could establish to the satisfaction of
the provincial government that he had occupied or
improved land within the belt prior to its transfer
to the Dominion; and this confiscatory legislation
was upheld by the Privy Council as relating to pro-
perty and civil rights in the province. The provin-
cial legislature it was held ' ' had the exclusive right
to so amend or repeal in whole or in part its own
said statute of December, 1883 (47 Vict., c. 14) ''—
the Act granting the belt to the Dominion.® And
in another case it was held by the Supreme Court
of Canada that land in the '^ railway belt,'' not in-
cluded in the statutory conveyance because held
under pre-emption, fell to the province upon an
abandonment by the pre-emptor.^"

Water Records: — The matter of fishing rights
and the extent of provincial rights under section
109 to the public lands within the boundaries of the
province will be discussed later. With regard to
'^ water rights " in the railway belt of British Col-
umbia it may be noted that for many years before
1871 provincial legislation had provided for the
grant of such rights as appurtenant to, or to be
used with, lands held by settlers quite apart from
riparian rights. In a recent case the Court of Ap-
peal for British Columbia held that the proviso

^ McGregor \, Esquimau d N. Ry. Co. (1907), A. C. 462; 76 L.
J. P. C. 85. With this compare Royal Bank v. R. (1913), A. C.
283; 82 L. J. P. C. 33.

"22. V. Demers, 22 S. C. R. 482.

CROWN PROPERTY. 627

reserving to the province the power to grant pre-
emption rights to actual settlers pending the transfer
of the belt would include the power to grant '' water
records '' entitling the pre-emptor to take water
from one or more streams for domestic use or for
irrigation/ In view of the language of the proviso
and of the failure of the Dominion to live up to the
undertaking first mentioned in clause 11 of the
original Terms of Union, it seems difficult to under-
stand how the province — at all events after the two
years had expired — ^was bound even by what has
been called '' an honourable engagement '^ to re-
frain from dealing with her public lands according
to provincial law.^ Construed as an imperial sta-
tute the Terms of Union could not, it is conceived,
be invoked under such circumstances to invalidate
titles under provincial grant.

Apart from the exclusive legislative authority
of the parliament of Canada to legislate as to the
Crown's proprietary interest in the lands of the
railway belt, there is nothing to suggest a doubt as
to the operation throughout the belt of provincial
law in relation to all matters within provincial com-
petence.^ The cases shew merely that provincial
legislation cannot operate to take away any part of
the Dominion's proprietary rights; though indir-
ectly it may, of course, affect them. Here mani-
festly co-operation is necessary if the wants of the
province are to be adequately met.*

^George v. Mitchell (1912), 17 B. C. 531.

'This was apparently the view of Macdonald, C.J., in the
case last cited. As he points out, however, a provincial statute
passed in 1880 (cap. 11) might create difficulty as to water-records
west of Kamloops, the abandonment of the Yellowhead Pass route
not substantially affecting the location of the line from Kamloops
to the coast.

^See Re Sturmer d Beaverton (Town), 24 Ont. L. R. 65, refer-
red to atite, p. 617.

* See ante, p. 294 et seq.

628 CANADIAN constitution: self-government.
Pkovincial Goveknment Pkopekty.

Crown Lands.

The position, speaking broadly, is as put by
Lord Watson : ^

" The enactments of section 109 are, in the opinion of
their Lordships, sufficient to give to each province, subject to
the administration and control of its own legislature, the
entire beneficial interest of the Crown in all lands within its
boundaries which at the time of the Union were vested in
the Crown, with the exception of such lands as the Dominion
acquired right to under section 108, or might assume for the
purposes specified in section 117. Its legal effect is to ex-
clude from the ' duties and revenues ' appropriated to the
Dominion all the ordinary territorial revenues of the Crown
arising within the provinces."

The beneficial interest referred to in this pas-
sage includes not merely the ownership of the beds
of all rivers and streams tidal or non-tidal, of the
beds of all lakes and arms of the sea (not being
public harbours), and of the foreshore and bed of
the sea so far as the same is ^' within the realm,''
but also the right to fish in the non-tidal waters of
all these rivers, lakes and streams. It also includes
the ownership of the waters themselves, subject to
the provincial law touching riparian rights, and
subject to the right of the public to fish in the sea
and other tidal waters, and, possibly, to a public
right to navigate all waters navigable in fact even
though not at common law navigable waters.^

These matters, however, call for more detailed
treatment elsewhere in this book. The question of

^ Indian Lands Case, 14 App. Cas. 46 ; 58 L. J. P. C. 54.

'Fisheries Case, 26 S. C. R. 444; (1898), A. C. 700; 67 L. J. P.
C. 90; Burrard Power Co., 43 S. C. R. 27; (1911), A. C. 87; 80
L. J. P. C. 69; Re B. C. Fisheries, 47 S. C. R. 493; (1914), A. C.
153; 83 L. J. P. C. 169.

CROWN PROPERTY. 629

the proprietary interest of the Crown in the bed of
the sea within the three-mile zone off the coast of
Canada where it faces the open sea, as distin-
guished from the right to exercise therein or even
farther out certain sovereign powers and to exclude
the subjects of other countries from the coast fish-
eries, has been already discussed^ The matter of
'^ water records '' in the Eailway Belt of British
Columbia has also been dealt with.® And the matters
of navigation and of the fisheries as special topics
have still to be treated of.^ The general proposi-
tion laid down by Lord "Watson in the passage
quoted above really covers the entire ground. In the
earliest case before the Privy Council involving
the interpretation of section 109 it was held that
the right of the Crown to lands escheated for want
of heirs is a right falling within the word *' royal-
ties '' and therefore belongs to the province in
which the land lies.^^

The connection between section 102, sometimes
spoken of as the Eevenue Clause, and section 108
is indicated in the following passage from the
judgment in the Indian Lands Case:^

" 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 (section 102), can only be ascer-
tained by reference to the two exceptions which it makes in
favor of the new provincial legislatures.

" The second of these exceptions has really no bearing
on the present case, because it comprises nothing beyond the
revenues which provincial legislatures are empowered to raise

^ See ante, p. 108 et seq.

« See ante, p. 626.

''See post, p. 695 (navigation) and p. 712 (fisheries).

^"Mercer's Case, 8 App. Cas. 767; 52 L. J. P. C. 84.

^14 App. Cas. 96; 58 L. J. P. C. 54.

630 CANADIAN constitution: self-government.

by means of direct taxation for provincial purposes in terms
of section 92 (2). The first of them, which appears to com-
prehend the whole sources of revenue reserved to the pro-
vinces by section 109, is of material consequence." After quot-
ing this section at length, the judgment proceeds : " In con-
nection with this clause it may be observed that by section
117 it is declared that the provisions shall retain their respec-
tive 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 property which
is directly appropriated to the provinces; but it hardly ad-
mits of doubt that the interests in land, mines, minerals, and
royalties, which by section 109 are declared to belong to the
provinces, include, if they are not identical with, the ' duties
and revenues ^ first excepted in section 102." ^

In Mercer's Case the question was left unde-
cided whether ^^ royalties '' other than those con-
nected with lands, mines, and minerals, were cov-
ered by this section; it was held that the section at
all events reserved to the provinces all royal rights,
^^ jura regalia omnia ad fiscum spectantia/' con-
nected with those three subjects. In a later case
the Committee held that a statutory grant by the
province of British Columbia to the Dominion of
'^ public lands " was, in substance, an assignment
merely of its right to appropriate the territorial
revenues arising therefrom and could not, in the
absence of express words, be construed as a trans-
fer of the precious metals under such lands, the
revenues derivable therefrom not being incident to

=^ The scheme of division of assets, &c., effected by Part VIII.,
has been exhaustively discussed in Mercer's Case, 8 App. Cas.
767; 52 L. J. P. C. 84; and the St. Catharines Milling Co.'s Case,
uM supra; and (as to the apportionment of liabilities) in the
Indian Claims Case (1897), A. C. 199; 66 L. J. P. C. 11. As to the
power of appropriation possessed by the provincial legislatures
prior to Confederation: see ante, p. 325, et seq.

CROWN PEOPERTY. 631

the land (as are mines of baser metal), but rev-
enues arising from the prerogative rights of the
Crown, which, under the word '^ royalties,'' passed
to the provinces by force of section 109.^ In one
case Mr. Justice Street held that the right to grant
a license to operate a ferry between an Ontario
port and a United States port is a ^^ royalty ''
which is reserved to the province by this section,
notwithstanding the fact that legislative power
over such ferries is with the federal parliament ; *
but this view was not taken by the Supreme Court
of Canada upon a later reference to that Court of
certain questions concerning international ferries.^
Mr. Justice Nesbitt, after reviewing the cases noted
above, said:

" I do not find any Court has laid down the rule that a
mere right to create something, a mere authority to bring into
being a corporate entity or privilege or anything of that
character for which a fee could be charged is a ' royalty '
within section 109, but I would rather place such a right
under sections 12 and 108 than under 109/^

Section 109 expressly provides that provincial
ownership of Crown lands is ** subject to any

^Precious Metals Case, 14 App. Cas. 295; 58 L. J. P. C. 88.
The holding in the Liquidators' Case (1892), A. C. 437 ; 61 L. J. P.
C. 75), that the prerogative right of the Crown to claim priority
for debts due the Crown over the claims of private 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, 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.

* Perry v. Clergue, 5 Ont. L. R. 357.

^Re International Ferries, 36 S. C. R. 206. Sedgewick and
Girouard, JJ., concurred in the opinion of Nesbitt, J. The
Chief Justice (Sir Elzear Taschereau), put the right to license
an international ferry on section 102. See ante, p. 359 et seq., as
to the principle upon which the Crown's prerogatives are distri-
buted by the British North America Act.

632 CANADIAN constitution: self-government.

trusts existing in respect thereof and to any inter-
est other than that of the province in the same,''
These expressions, it was said by Lord Watson
speaking for the Privy Council,

" appear to their Lordships to be intended to refer to dif-
ferent classes of right. Their Lordships are not prepared
to hold that the word ^ trust ' was meant by the legislature
to be strictly limited to such proper trusts as a Court of
equity would undertake to administer; but, in their opin-
ion, it must at least have been intended to signify the exist-
ence of a contractual or legal duty, incumbent upon the holder
of the beneficial estate or its proceeds, to make payment out
of one or other of these of the debt due to the creditor to
whom that duty ought to be fulfilled. On the other hand
^ an interest other than that of the province in the same ^ ap-
pears to them to denote some right or interest in a third
party independent of and capable of being vindicated in com-
petition with the beneficial interest of the old province." ^

In the judgment from which the above extract
is taken the Privy Council dealt with a claim put
forward by the Dominion and the province of Que-
bec against the province of Ontario in respect of
the burden of certain annuities which the old pro-
vince of Canada had in 1850 agreed to pay to cer-
tain Ojibeway Indians as the consideration, in part,
for the surrender by the Indians of their ^ title ' to
large tracts of land on the shores of Lakes Huron
and Superior. These lands after Confederation
were exclusively within Ontario; and it was con-
tended that the right of the Indians to be paid the
annuities constituted an *^ interest other than that
of the province '' in the surrendered lands, or, at
all events, that the lands were subject to a trust
'* existing in respect thereof.'' There was nothing
in the language of the Treaties to charge the an-
nuities either upon lands themselves or even upon

^Indian Claims Case (1897), A. C. 199; 66 L. J. P. C. 11 ; some-
times referred to as the RoMnson Treaties' Case.

CEOWN PROPERTY. 633

the revenues to be derived from their sale to set-
tlers and others ; and under these circumstances the
Privy Council held that there was clearly no in-
terest other than that of the province in the sur-
rendered lands and, moreover, that no trust could
be said to exist in respect of them. The obligation
to pay the annuities was an ordinary government
debt to be adjusted as between the Dominion and
the two provinces in the manner contemplated by
other sections of the British North America Act,
and not charged to Ontario alone. With regard to
surrenders made since Confederation it has been
held, as already intimated,^ that the Dominion acts
upon its own constitutional responsibility in ar-
ranging treaties of that character with the Indians
and has no legal claim to contribution from the pro-
vince in which the lands may lie, although such pro-
vince undoubtedly reaps a peculiar benefit by the
extinction of the Indian ^' title.''

The Indian Title.

The proclamation which followed upon the
Treaty of Paris (1763) contained provisions de-
signed to protect the aborigines ^' in the possession
of such parts of our dominions and territories as,
not having been ceded to us, are reserved to them
or any of them as their hunting grounds.'' To this
end the governors of Quebec, East Florida, and
West Florida were forbidden to issue patents for
unsurrendered lands and it was further declared —

"to be our Eoyal will, for the present as aforesaid, to re-
serve under our sovereignty, protection and dominion, for
the use of the said Indians, all the lands and territories not
included within the limits of Our said three new govern-
ments, or within the limits of the territory granted to the
Hudson's Bay Company." ^

^ See ante, p. 390 et seq.

^ See post, p. 847 et seq., as to the Hudson's Bay territory.

634 CANADIAN CONSTITUTION": SELF-GOVERNMENT.

The nature of the interest thus recognized has
been the subject of much controversy ; and in the
Indian Lands Case ^ the Privy Council declined to
express any opinion as to the '' precise quality of
the Indian right.'' The majority of Canadian
judges had intimated the opinion that the title or
interest of the Indians was one which could not
come into competition with a Crown grant in the
issue of which the Indian *^ title " had been ig-
nored.^^ In the judgment of the Privy Council,
however, the Indian title to unsurrendered lands
was expressly stated to be an ^^ interest other than
that of the province in the same ' ' within the mean-
ing of section 109 ; and that phrase is defined in the
Robinson Treaty Case'^ as denoting ^* some right
or interest in a third party independent of and
capable of being vindicated in competition with the
beneficial interest '' of a province. And in the
same case it is stated that these lands become avail-
able to the province *^ as a source of revenue when-
ever the estate of the Crown is relieved of the In-
dian title.''

The controversy in the eastern provinces may
be considered as closed; the middle provinces do
not own the public lands; and even in British Col-
umbia where, it is suggested, the proclamation of
1763 does not apply and where the Indian ^^ title "
has been denied and almost completely disre-
garded, an effort is being made to adjust the whole
matter amicably not only as between the Dominion
and the province but also as regards the interests

» St. Cath. Milling Co. v. R., 14 App. Cas. 46; 58 L. J. P. C. 54.
'"Boyd, C, (10 Ont. R. 196) ; Hagarty, C.J.O., Burton and Osier,
JJ.A. (13 Ont. App. R. 148). Ritchie, C.J., Fournier, Henry, and
Taschereau, J J., (13 S. C. R. 577). Strong, J., put the right on
higher ground, and it has been suggested that his view is that
which accords most nearly with that taken by the Privy Council.

^ (1897), A. C. 199; 66 L. J. P. C. 11; extract ante, p. 632.

CROWN PROPERTY. 635

of the Indian tribes. The subject therefore does
not seem to call for extended treatment.

While declining to express an opinion as to the
** precise quality of the Indian right " under the
proclamation Lord Watson described it as

"a personal and usufructuary right dependent upon the good
will of the Sovereign. . . . There has been all along
vested in the Crown a substantial and paramount estate un-
derlying the Indian title, which became a plenum dominium
whenever that title was surrendered or otherwise ex-
tinguished.^^ 2

The traditional policy, as stated in the proclam-
ation of 1763, had been universally followed. No
Crown grants issued until a treaty of surrender
had been negotiated. From time to time Indian
tribes had surrendered their title to portions of the
reserved territory, usually upon terms which se-
cured to them a more definite right of occupation
of some small subdivision/ of it. These smaller
tracts were known as "' Indian reserves.'* In the
view of Canadian Courts the phrase ** lands re-
served for the Indians '' (section 91, No. 24) ap-
plied only to these, and not to the larger indefinite
areas covered by the proclamation of 1763; but
this view was distinctly negatived by the Privy
Council. The power of the Dominion government
is a power of legislation and administration in re-
spect of Indians, and the lands reserved for them
over both these larger areas and the more restricted
areas of the " Indian reserves '' (so called) until
the surrender and extinguishment of the Indian
title.* The Crown's title and the effect of a sur-
render is thus put:

^ St. Catharines Milling Co. v. R., 14 App. Cas. 46 ; 58 L.J.P.C. 59.
'Chicrch V. Fenton, 5 S. C. R. 239; 4 O. A. R. 150; 28 U. C. G.
P. 384.

* St. Catharines Milling Co. v. R., ubi supra.

636 CANADIAN" constitution: self-government.

" Prior to that surrender the province of Ontraio had
a proprietary interest in the land under the provisions of
section 109 of the British N"orth America Act, 1867, subject
to the burden of the Indian usufructuary title and, upon the
extinguishment of that title by the surrender, the province
acquired the full beneficial interest in the land, subject only
to such qualified privilege of hunting and fishing as was re-
served to the Indians in the treaty." ^

Section 91, No. 24, confers legislative power
only and does not in any way operate to ^* vest in
the Dominion any proprietary right in such lands
or any power by legislation to appropriate lands,
which by the surrender of the Indian title had be-
come the free public lands of the province, as an
Indian reserve in infringement of the proprietary
rights of the province.'' The treaty of 1873 in
question in the earlier case provided for the set-
ting aside of smaller areas as Indian reserves. Af-
terwards parts of these smaller areas were in their
turn surrendered to the Crown under the Indian
Act, 1880, upon trust to sell the same and invest
tHe proceeds for the benefit of the Indians con-
cerned. But, in the words of Mr. Justice Street,

" the act of the Dominion officers in purporting to select and
set aside out of it certain parts as special reserves for Indians
entitled under the treaty, and the act of the Dominion gov-
ernment afterwards in founding a right to sell these so-called
reserves upon the previous acts of their officers, both appear
to stand upon no legal foundation whatever. The Domin-
ion government, in fact, in selling the land in question was
not selling ^ lands reserved for Indians ' but was selling lands
belonging to the province of Ontario."

The Privy Council upheld this view ^ and a
Dominion patent for the lands in dispute was held

^Ontario Mining Co. v. SeytoU (1903), A. C. 73; 72 L. J. P.
C. 5 ; sometimes spoken of as the Special Reserves Case.

* Special Reserves Case (1903), A. C. 73; 72 L. J. P. C. 5; 32
S. C. R. 1: 32 Ont. R. 301 ; 31 Ont R. 386.

CROWN PROPERTY. 637

invalid and title under a provincial patent was up-
held.

The result is, as intimated on a previous page/
that the Indian interest can be practically dealt
with only by the co-operation of the two govern-
ments. A treaty of surrender can be negotiated
only by the Crown in right of the Dominion. This
is the view of the majority of the judges of the
Supreme Court of Canada as expressed in the In-
dian Treaties {Indemnity) Case^ and is indicated
in the following passage from the judgment of the
Privy Council in the same case:

" The Crown acts on the advice of ministers in making
treaties and in owning public lands holds them for the good
of the community. When differences arise between the two
governments in regard to what is due to the Crown as maker
of treaties from the Crown as owner of public lands they
must be adjusted as though the two governments are separ-
ately invested by the Crown with its rights and responsibil-
ities as treaty maker and as owner respectively.^'

Executive action must be grounded on legisla-
tive jurisdiction in this as in all other matters.

On the other hand, the usual provision for smal-
ler special reserves with larger propriety rights
therein on the part of the Indians can only be made
by the province at the request and with the concur-
rence of the Dominion.

There is no reported case in Canada of any ac-
tion by or on behalf of any Indian or tribe of In-
dians to vindicate, as Lord Watson puts it, the In-
dian ' ' title ' ' in competition with the beneficial in-
terest of a province or its grantee. Probably none

' See ante, p. 394.

» (1910), A. C. 637 ; 80 L. J. P. C. 32; 42 S. C. R. 1. See also per
Rose, J., in Caldwell v. Eraser, as reported in Macpfierson d
Clark's Law of Mines, p. 15.

638 CANADIAN" constitution: self-government.

would lie;^ but there are dicta to the effect that
there is no right to sell until after surrender of the
Indian title.^'

»See Te Teira v. Te Roera Tareha (1902), A. C. 56; 71 L. J.
P. C. 11.

^"For example, per Rose, J., in Caldwell v. Fraser: see note
(8), ante, p. 637. Otlier cases which may be referred to on the
general subject are Mowat v. Casgrain (1896), R. J. S. 6 Q. B. 12;
Corinthe v. St. Sulpice, <&c. (1912), A. C. 872; 82 L. J. P. C. 8;
Doe d. Burk v. Cornier (1890), 30 N. B. 147 (as to operation in
New Brunswick of the proclamation of 1763). And see also
Hodgins, Provl. Legislation, 1254, 1024.

CHAPTER XXX.

Taxation.

The following sections of the British North
America Act bear directly upon taxation:

VI. Distribution of Legislative Powers.
Powers of the Parliament.

91. . . . the exclusive legislative authority of the
parliament of Canada extends to all matters coming within
the classes of subjects next hereinafter enumerated; that is
to say : — ...

3. The raising of money by any mode or system of tax-

ation. ...

8. The fixing of and providing for the salaries and allow-

ances of civil and other officers of the government
of Canada. . . .

Exclusive Powers of Provincial Legislatures.

92, In each province the legislature may exclusively make
laws in relation to matters coming within the classes of sub-
jects next hereinafter enumerated ; that is to say : — ...

2. Direct taxation within the province in order to the
raising of a revenue for provincial purposes. . . .

4. The establishment and tenure of provincial offices and

the appointment and payment of provincial offi-
cers. . . .

9. Shop, saloon, tavern, auctioneer, and other licenses in

order to the raising of a revenue for provincial,
local, or municipal purposes. . . .

640 CANADiAjf constitution: self-government.

VIII. Eevenues, Debts^ Assets, Taxation.

121. All articles of the growth, produce, or manTifacture
of any one of the provinces shall, from and after the union,
be admitted free into each of the other provinces.

125. No lands or property belonging to Canada or any
province shall be liable to taxation.^

Plenary Powers : — It is beyond the scope of this
work to specify and distinguish the various methods
to which a legislature possessed of plenary powers
may resort in order to the raising of the monies re-
quired for carrying on the work of government. It
will be necessary, indeed, in dealing with provin-
cial powers of taxation to discuss to some extent
the question as to the incidence of taxation, that is
to say, whether a tax can or cannot be said to be.
imposed upon property or transactions as distinct
from some person interested in the property or
concerned in the transactions aimed at or made the
basis of provincial taxation ; but beyond that neces-
sary enquiry very little if any attempt will be made
to classify the various possible modes of taxation.
Subject to the restrictions indicated in the above
sections, some of which apply to all Canadian gov-
ernments, federal as well as provincial, and some
to provincial taxation only, the power to impose
taxation, like every other legislative power con-
ferred by the British North America Act, is the
plenary power of a sovereign legislature.- That

* Sections 122, 123, and 124, were of temporary operation only.
They may be read in the Appendix. There are three other sec-
tions of the Act touching taxation, namely, sections 53 and 54
(federal) and section 90 (provincial) ; but they enact rules of
parliamentary procedure only. Tax Acts must originate in the
popular chamber and be recommended by message from the Gov-
ernor-General or Lieutenant-Governor, as the case may be.

-See ante, p. 349. As to taxation of foreign-built ships on
application for British registry in Canada, see ante, p. 214.

TAXATION. 641

these powers may possibly be abused is no argu-
ment against their existence.^ The possible result
under a federal system is an inconvenient liability
to double taxation. For example, as the Privy
Council has pointed out,* both the Dominion par-
liament and a provincial legislature may, each for
its own purposes, impose a tax by way of license as
a condition of the right to fish; and possible in-
stances might be multiplied indefinitely. The dif-
ficulties arising from such taxation of the same sub-
ject matter and within the same area by different
authorities would no doubt, as the Board observed^
be obviated in practice by the good sense of the
legislatures concerned.^ And provincial powers of
taxation are not to be curtailed through fear of
their injurious operation upon subjects committed
to the Dominion parliament ; ^ and the converse
proposition is undoubtedly true. Then, again, there
is no rule or limitation that taxation, federal or
provincial, under the British North America Act
must be uniform or without discrimination.*^

Provincial Taxation of Federal Officers: — In an
early case in Ontario ^ it was held that provincial
powers of taxation do not extend over the salaries
of the executive staff of the Dominion; and this un-
til recently was the generally accepted view. The
decisions were based not so much upon the limited.

' See ante, pp. 481-2.

* Fisheries Case (1898), A. C. 700; 67 L. J. P. C. 90.

" See also R. v. Neiderstadt, 11 B. C. 347.

« Lambe's Case, 12 App. Cas. 575 ; 56 L. J. P. C. 87.

^ See ante p. 358, where the cases are cited.

^Leprohon v. Ottawa, 2 0. A. R. 522 (reversing 40 U. C. Q. B..
490, where will be found strong arguments in support of the~
contrary view) ; R. v. Bowell, 4 B. C. 498; Ex p. Owen, 4 P. & B.
487; Ackman v. Moncton, 24 N. B. 103; Coates v. Moncton, 25 N.
B. 605 ; Ex p. Burke, 34 N. B. 200. But see Fillmore v. Colburn, 28:
N. S. 292, noted in-fra.

CAN. CON. 41

642 CANADIAN constitution: self-government.

range of No. 2 of section 92, ^^ direct taxation
within the province, ' ' as upon the broader grounds
of public policy which underlie a federal system
such as obtains in Canada; that a provincial legis-
lature has no power to impose a burden upon the
instruments by which the government of the Dom-
inion is carried on.^ Upon the same avowed prin-
ciple it has been held that Dominion officials can-
not be ordered to pay a judgment by instalments
under provincial Acts,^^ and that their salaries can-
not be attached or made exigible in execution under
such Acts ; ^ but these decisions, it may be noted,
really rest upon a different foQting.

But in a case from Australia " the Privy Council
in 1906 held that the incomes of Commonwealth of-
ficials were liable to State taxation; and, following
that decision, the Supreme Court of Canada in
1908 held that the same principle applied to war-
rant provincial taxation of the incomes of Dom-
inion officials.^ The judgment, however, does not
touch the larger question as to the power of a pro-
vincial legislature to affect directly the salary
payable by the Crown by provisions designed to
intercept it and prevent its receipt by the officer to

' ^ This decision was based largely upon authorities in the United
States Courts, as to which see ante, p. 397. In the second edition
of this book this comment was added: "Whether these decisions
can stand in face of Lamde's Case (12 App. Cas. 575; 56 L. J.
P. C. 87) is questionable. The argument ad inconvenienti is
weakened by the fact that for provincial officers there is no
escape from the burden of federal tariffs. In Fillmore v. CoXburn
(1896), 28 N. S. 292, performance of statute labour was enforced
against a sectionman on the Intercolonial (Government) Ry. by
the Supreme Court of Nova Scotia."
'. ' ^''Ex p. Killam, 34 N. B. 586.

^ Evans v. Hudon, 22 L. C. Jur. 268 ; 2 Cart. 346.

^Webl) V. Outrim (1907), A. C. 81; 76 L. J. P. C. 25.

^ A'b'bott V. 8t. John (City), 40 S. C. R. 597. In the dissenting
judgment of Girouard, J., is a statement as to the view taken in
Australia of the decision in WeJ)l) v. Outrim. See ante, p. 375,
note.

TAXATION. 643

to whom it is due. Such provisions could, it is
conceived, be enacted by the federal parliament
only. But the judgment does affirm that the amount
payable may be properly made the basis of a pro-
vincial tax upon the income of a federal official.
The converse proposition, that a federal tax might
be imposed based on the income of a provincial of-
ficial and in that sense on the income itself, would
be an a fortiori one.

Taxation of Crown Property: — The constitu-
tional restriction imposed by section 125 applies to
both federal and provincial governments; but the
only cases in which it has been invoked are cases in
which provincial taxation, either general or muni-
cipal, has been questioned. The section, it is con-
ceived, was unnecessary. It was not intended to
affect the general rule as to the exemption of Crown
property from taxation as that rule is to be ap-
plied, for example, in England or in a colony under
one legislature only."^ It was inserted by way of
abundant caution to prevent the Dominion from
levying taxes for federal purposes upon property
held by the Crown for provincial purposes, and
vice versa. It would operate no doubt to exempt
from custom's duties goods purchased abroad by a
provincial government, though there is no reported
case on this point.

With reference to provincial taxation, it has re-
cently been held by the Supreme Court of Canada
that the section protects the Crown's interest only,
and does not operate to prevent a province from
taxing, or from authorizing a municipality to tax,
the beneficial interest of any private person or cor-

*The latest English case is Wixon v. Thomas (1912), 1 K. B.
«90; 80 L. J. K. B. 686 (C.A.).

644 CANADIAN constitution: self-government.

poration.^ Of course, as put by Mr. Justice Iding-
ton, the beneficial estate or interest privately
owned ^^ is all that is touched and all that becomes
forfeitable or forfeited if not redeemed." Mr. Jus-
tice Anglin states it more precisely, thus:

" Full effect is given to section 125 of the British North
America Act, 1867, by holding that it precludes the taxation
of whatever interest the Crown holds in any land or property
and that, so long as such interest subsists, the taxation of any
other interest in the land and any sale or other disposition
made of it to satisfy unpaid taxes, while valid, is always sub-
ject to the rights of the Crown which remain unaffected
thereby.^'

In that case the lands in question formed part
of a land subsidy granted by the Dominion Govern-
ment under federal Act to a railway company, and
at the time the provincial tax was imposed the
Crown was a bare trustee, the lands having been
'' earned " by the company and duly set apart for
it, though no Crown grant had yet issued. But the
principle of the decision covers any beneficial in-
terest, legally recognizable, in any person in land
or property, notwithstanding that some beneficial
interest as well as the legal title still remains in the
Crown; and therefore upholds provincial taxation
of homestead and pre-emption interests. This had
been the view taken in the courts of the North-West
Territories,^ where the question was obviously of
far-reaching importance, and afterwards in the pro-
vinces of Alberta and Saskatchewan; though the
principle as now affirmed is, of course, of universal
application in all the provinces.

This decision has very recently been re-affirmed
and the principle of it held to cover the case of an

^ Calgary & Edmonton Land Co. v. Atty.-Gen. of Alherta (1911),
45 S. C. R. 171.

« Osier v. Colthart, 7 Terr. L. R. 99.

TAXATION. 645

interest in federal Crown lands in Saskatchewan
held under grazing leases or licenses from the Min-
ister of the Interior issued under federal legisla-
tion/ It was suggested that the lessee or licensee
was a non-resident of the province, and this phase
of the case will call for discussion later/

In an earlier case in 1885 the Supreme Court
of Canada had held that lands under lease to the
Dominion Government for military purposes could
not be taxed for municipal purposes by the city of
Montreal ; ^^ but, although that case is mentioned
and not criticized in the later case above discussed,
it seems difficult to reconcile the two decisions. Cer-
tain pre-confederation statutes of Lower Canada
were relied on and it may be that they were suffi-
cient to exempt the owner's interest as well as that
of the Crown; or it may be that the taxation pur-
ported to be in respect of occupation merely and
not a tax on the land, as to which the report is not
clear. That a municipality may not enforce contri-
bution to municipal expenditures from an owner of
property who, as Mr. Justice Strong put it, is for-
tunate enough to have the Crown as his tenant,
would seem an untenable proposition, unless, in-
deed, the municipality is restricted by its charter
to the levy of an occupation rate merely. Section
125 uses the expression ^^ belonging to ''; and the
landlord's reversionary interest could not by any
stretch of language be said to belong to the Crown.

The city of Quebec endeavoured to recover from
the Dominion the cost of sidewalks laid in front of
federal Crown lands in that city; but it appearing
that no contractual relationship existed and that
the cost had been assessed in the usual way against

'Smith V. Vermillion Hills (1914), 49 S. C. R. 563.

« See post, p. 681.

^ Atty.-Gen. of Canada v. Montreal (1885), 13 S. C. R. 352.

646 CANADIAN" constitution: self-government.

the lands the city's petition of right was dismis-
sed/^ On the other hand the Court of Appeal for
Ontario held the federal government liable to pay
city water rates as being the price charged for a
commodity furnished/

Interprovincial Trade: — There is no instance
reported of any attempt by any province to lay a
tax upon imports from or exports to another pro-
vince. The former would, of course, be indirect
taxation; the latter might be direct taxation and
might, moreover, be held not to fall wifhin the let-
ter of the restriction imposed by section 121 oF the
British North America Act as it appears at the be-
ginning of this chapter. It has been held by the
Court of Appeal for Ontario that a province in
dealing with its public lands and the timber and
wood thereon (section 92, No. 5) may impose such
conditions as it sees fit upon purchasers and
licensees even to the extent of prohibiting exporta-
tion from the province.^ And provincial game laws
may also go so far as to prohibit exportation.'
But these were not really fiscal Acts.

In the Local Prohibition Case * the question was
propounded: '' Has a provincial legislature juris-
diction to prohibit the importation of such liquors
into the province!" The answer of the Privy
Council, as printed in the reports, was :

^"Quelec {City) v. R. (1886), 2 Exch. Ct. R. 450 (Fournier, J.).

^ Atty.-Gen. v. Toronto, 18 O. A. R. 622. For other cases in
which section 125 is discussed, see Church v. Fenton, 5 S. C. R.
239; Quebec v. Leacraft, 7 Que. L. R. 56 (see 13 S. C. R. 358);
B. V. Wellington, 17 0. A. R. 421; sul) nom. Quirt v. R., 19 S. C.
R. 510, as explained by Anglin, J., in 45 S. C. R. at p. 189 et seq.

^Smylie v. R., 27 Ont App. R. 172; 31 Ont. R. 202.

' R. V. Boscowitz, 4 B. C. 132 ; R. v. Robertson, 13 Man. L. R.
613.

* (1896), A. C. 348; 65 L. J. P. C. 26.

TAXATION. 647

" Their Lordships answer this question in the negative.
It appears to them that the exercise by the provincial legis-
lature of such jurisdiction in the wide and general terms in
which it is expressed would probably trench upon the exclu-
sive authority of the Dominion parliament."

But as recited in the formal Order-in-Council the
report of the Board appears to have stated that

there might be circumstances in which a provincial legisla-
ture might have jurisdiction to prohibit the manufacture
within the province of intoxicating liquors and the importa-
tion of such liquors into the province.^

What those circumstances might be is nowhere
expressly stated. In the Manitoba Liquor Act
Case,^ it was unnecessary to carry the enquiry fur-
ther for the provincial Act there in question did
not prohibit importation, for it expressly excepted
from the operation of the Act ^^ bona fide transac-
tions in liquor between a person in the province of
Manitoba and a person in another province or in a
foreign country ' ' ; and this provision was, as the
Board expressed it, as much part of the Act as any
other section contained in it. The Act would if ef-
fective manifestly interfere with the revenue of the
Dominion, with licensed trades in the provinces and
indirectly cut off much interprovincial business;
but this was held to be no good reason for limiting
provincial jurisdiction so long as the Act dealt with
the liquor traffic as a local provincial evil. Section
121, which apparently contemplates interprovincial
free trade, is not referred to in either of the above
cases and the reference in the first extract to a pos-
sible trenching upon federal jurisdiction had evi-
dently in view section 91, No. 2, ^^ the regulation of
trade and commerce." Section 121 contains a pro-

" This quotation is from the case cited in the next note.
« (1902), A. C. 73 ; 71 L. J. P. C. 28.

648 CANADIAN constitution: self-government.

vision which would operate to restrict federal leg-
islation as well as provincial. But it is a tax or
revenue clause merely a*s the group heading indi-
cates/ and would not, it is conceived, affect federal
or provincial legislation not of a fiscal character.

Peovincial Poweks of Taxation.

Apart from the restrictions above indicated,
which apply to limit the range of federal as well as
of provincial taxation, provincial power is subject
to two expressed limitations. First, the taxation
must be ^ ' direct taxation " ; a substantial and rea-
sonable restriction. Secondly, it must be taxation
' ^ within the province " ; a substantial restriction
in this sense only, that the inability of any state to
enforce abroad its fiscal legislation is obviously
matter of substance, but a restriction which is un-
reasonable if interpreted as being more than the
natural, and, as it were, casual expression of a uni-
versal limitation upon the power of a modern state.
Neither of these two limitations was introduced to
define the boundary line between federal and pro-
vincial powers of taxation; for, as already pointed
out,^ the two heads of sections 91 and 92 respec-
tively which confer the power to tax do not come
into competition at all. That power is the neces-
sary adjunct of any independent government and
was conferred upon all the governments established
under the British North America Act. The third
phrase, therefore, ^^ in order to the raising of a
revenue for provincial purposes '' is but the casual

'' See ante, p. 305. In Re Provincial Companies 48 S. C. R. at
pp. 378-9, Idington, J., after quoting sec. 121, treats the word
" free " as if it were " freely." " Interprovincial trade and com-
merce was to flow thereafter as freely as if its right to do so had
been declared by an organic law." This appears too wide ; " free "
means, it is submitted, " free of taxation."

^Ante, p. 458.

TAXATION. 649

statement of a limitation which would exist in any
case. And the same is true, it is conceived, of the
phrase *^ within the province,'' but upon this pro-
position a careful examination of the authorities is
necessary, and in this connection the earlier chap-
ter dealing with the doctrine of exterritoriality®
should be consulted. It is advisable to keep the two
limitations distinct as far as possible; but to some
extent the authorities overlap, as will appear. It
is proposed therefore to examine the cases before
rthe Privy Council in their order.

First, however, it should again be noted that the
third phrase ^^ in order to the raising of a revenue
for provincial purposes '' was construed by the
Privy Council in one of the earliest cases which
came before it under the British North America
Act as authorizing direct taxation for a local pur-
pose upon a particular locality within the province
and was not limited to taxation which should be in-
cident on the whole province for the general pur-
poses of the whole province." In that case the tax
necessary to pay a local bonus was directly im-
posed by the Act impugned, but, bearing in mind
the principle of Hodge v. The Queen ^ as to the dele-
gation of power, the decision in Dow v. Black is
sufficient warrant for the whole system of munici-
pal 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 section 92, No. 9;
and direct subsidies from the provincial govern-
ments must have been resorted to, if indeed that
method could have been upheld as being for the
general benefit and purposes of the whole province.

•Chap. VII., ante, pp. 65, 75.

^''Dow V. Black, L. R. 6 P. C. 272; 44 L. J. P. C. 52.
* See ante, p. 350.

650 CANADIAN constitution: self-government.

And municipalities may be ordered to contri-
bute toward provincial expenditures within their
limits."

Direct Taxation: — In the latest case on the sub-
ject ^ Lord Moult on, delivering the judgment of the
Privy Council, said:

" The language of this provision of the British Xorth
America Act, 1867, marks an important stage in the history
of the fiscal legislation of the British Empire. Until that
date the division of taxation into direct and indirect be-
longed solely to the province of political economy, so far as
the taxation in Great Britain or Ireland or in any of our
Colonies is concerned ; and, although all the authors of stand-
ard treatises on the subject recognized the existence of the
two types of taxation, there cannot be said to have existed
any recognized definition of either class which was univer-
sally accepted. Each individual writer gave his own descrip-
tion of the characteristics of the two classes, and any differ-
ence in the descriptions so given by different writers would
necessarily lead to differences in the delimitation of the two
classes, so that one authority might hold a tax to be direct
which another would class as indirect. But, so long as the
terms were used only in connection with the theoretical treat-
ment of the subject, this state of things gave rise to no seri-
ous inconvenience. The British North America Act changed
this entirely. " Direct taxation ^' is employed in that statute
as defining the sphere of provincial legislation, and it became
from that moment essential that the Courts should, for the
purposes of that statute, ascertain and define the meaning of
the phrase as used in such legislation.^'

The decisions of the Privy Council bearing on
the question up to the date of the judgment are then
reviewed, and this passage follows:

" Their Lordships are of opinion that these decisions have
established that the meaning to be attributed to the phrase

2 Atty.-Gen. of B. C. v. Victoria, 2 B. C. 1.

' Cotton V. R. (1914), A. C. 176 ; 83 L. J. P. C. 105.

TAXATION. 651

' direct taxation ' in sec. 92 of the British North America Act,
1867, is substantially the definition quoted above from the
treatise of John Stuart Mill, and that this question is no
longer open to discussion."

The definition referred to is in the following
terms :

" A direct tax is one which is demanded from the very
person who it is intended or desired should pay it. Indirect
taxes are those which are demanded from one person in the
expectation and intention that he shall indemnify himself
at the expense of another."

In the earliest case in which the subject came
before the Privy Council* it was held that a pro-
vince cannot under the guise of a license fee impose
indirect taxation; in other words, that it cannot
make what is in substance indirect taxation direct
taxation by calling it a license fee. The legislature
of Quebec passed an Act providing for the issue of
licenses to insurance companies doing business in
the province. Nothing was 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 varying with the amount of the premium.
This was held by the Privy Council to be not a
license, but a stamp duty on policies. In the latter
view it was held to be indirect taxation. In arriv-
ing at the meaning to be attributed to the words
*^ direct taxation '' the Committee pointed out that
they may have a technical (economical or legal.) or
popular meaning. No attempt was then made to
decide this question,^ because it was held that, by
whichever key interpreted, a stamp duty, such as
was imposed by the Act, was not direct taxation.

* Atty.-Gen. of Quebec v. Queen Ins. Co., 3 App. Cas. 1090. See
ante, p. 487.

Afterwards settled by Lamde's Case, noted infra.

652 CANADIAN constitution: self-government.

In the next case ^ a duty payable in stamps upon
papers filed in Court in the course of litigation was
held to be indirect taxation for reasons thus stated :

" Can it be said that a tax of this nature, a stamp duty in
the nature of a fee 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 last 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 terminate, 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 administrator, a person who will
have to be indemnified by somebody 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 con-
troversy between them. The legislature in imposing the tax
cannot have in contemplation, one way or the other, the ulti-
mate 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. There-
fore 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 indifference to the intention of the legis-
lature. And, on the other hand, so far as relates to the know-
ledge which it is possible to have in a general way of the
position of things at such a moment of time, it may be as-
sumed that the person who pays it is in the expectation and
intention that he may be indemnified; and the law which
exacts it cannot assume that that expectation and intention
may not be realized. As in all other cases of indirect taxa-

'^ Atty.-Gen. of Quetec v. Reed, 10 App. Cas. 141; 54 L. J. P. C.
12. As to the method adopted in Manitoba to get over this deci-
sion, see vost, p. 665. It is systematically ignored in some at least
of the other provinces.

TAXATION. 653

tion, in particular instances, by particular bargains and ar-
rangements of individuals, that which is the generally pre-
sumable incidence may be altered. An importer may be him-
self a consumer. Where a stamp duty upon transactions of
purchase and sale is payable, there may be special arrange-
ments between the parties determining who shall bear it.
The question whether it is a direct or indirect tax cannot
depend upon those special events which may vary in particular
cases ; but the best general rule is to look to the time of pay-
ment; 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
section of the ninety-second clause of the Act in question."

With this description of indirect taxation may
be compared that of direct taxation as given in
Lamhe's Case ^ in which a tax imposed upon banks
which carry on business within a province, varying
in amount with the paid-up capital, and with the
number of its offices, was held to be direct taxation.

" First, is the tax a direct tax ? For the argument of this
question, the opinions of a great many writers on political
economy have been cited. . . . But it must not be for-
gotten that the question is a legal one, namely, what th6
words mean as used in this statute; whereas the economists
are always seeking to trace the effects of taxation throughout
the community, and are apt to use the words ' direct ' and
' indirect ' according as they find the burden of a tax abides
more or less with the person who first pays it. This distinc-
tion is illustrated very clearly by the quotations from a very
able and clear thinker, the late Mr. Fawcett, who, after giving
his tests of direct and 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 true of every indirect
tax that some persons are both the first and the final payers
of it ; and of every direct tax that it affects persons other than
the first payers; and the excellence of an economist's defini-

' 12 App. Cas. 575 ; 56 L. J. P. C. 87.

654 CANADIAN constitution: self-government.

tion will be measured by the accuracy with which it contem-
plates and embraces every incident of the thing defined. But
that very excellence impairs its value for the purposes 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 understanding
of men as to those tendencies.

'^After some consideration, Mr. Kerr chose the definition
of John Stuart Mill as the one he would prefer to abide by.
The definition is as follows: (as quoted on p. 651 ante).

" It is said that Mill adds a term, that, to be strictly di-
rect, a tax must be general, and this condition was much
pressed at the bar. Their Lordships have not thought it
necessary to examine Mill's works for the purpose of ascer-
taining precisely what he 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 char-
acter of a direct tax to the income tax of this country, whicli
is always spoken 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 sub-
ject, which is one main clue to the meaning of the legislature.

" 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 writer, nor
with the intention that it should be considered a binding
legal definition, but because it seems to them to embody with
sufiicient accuracy for this purpose an understanding of the
most obvious indicia of direct and indirect taxation, which is
a common understanding, and is likely to have bfeen present
to the minds of those who passed the Federation Act.

" N'ow, whether the probabilities of the case or the frame
of the Quebec Act are considered, it appears to their Lord-
ships that the Quebec legislature must have intended and
desired that the very corporations from whom the tax is de-
manded should pay and finally bear it. , It is carefully de-
signed for that purpose. It is not like a customs' duty

TAXATION. 655

which enters at once into the price of the taxed commodity.
There the tax is demanded of the importer, while nobody ex-
pects or intends that he shall finally bear it. All scientific
economists teach that it is paid, and scientific financiers in-
'tend that it shall be paid, by the consumer; and even those
who do not accept the conclusions of the economists maintain
that it is paid and intended to be paid by the foreign pro-
ducer. Nobody thinks that it is, or intends that it shall be,
pai^ by the importer from whom it is demanded. But the
tax now in question is demanded directly of the bank, appar-
ently for the reasonable purpose of 'getting contributions for
provincial purposes from those who are making profits by
provincial business. It is not a tax on any commodity which
the bank deals in and can sell at 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 busi-
ness. It may possibly happen that in the intricacies of mer-
cantile dealings the bank may find a way to recoup itself out
of the pockets of its Quebec customers. But the way must
be an obscure and circuitous one. The amount of recoup-
ment cannot bear any direct relation to the amount of tax
paid, and, if the bank does manage it, the result will not im-
probably disappoint the intention and desire of the Quebec
government."

In 1897, a provincial Act requiring brewers and
distillers to take out a license and pay a fee thereon
was held by the Privy Council to be direct taxa-
tion, being demanded, in the opinion of the Board,
from the very persons whom the legislature desired
to tax, with no intention or expectation that the bur-
den would fall on other shoulders.^

In 1902 the range of the Quebec Succession Duty
Act (1892) was in question before the Board. The
province claimed to collect the duty in respect of
property locally situate in the province but being
part of the estate of a person who had died domi-
ciled in Ontario.^ Applying the rule of restrictive

"^Brewers' Case (1897), A. C. 231; 66 L. J. P. C. 34.
'>Laml)e v. Manuel (1903), A. C. 68; 72 L. J. P. C. 17.

656 CAi^ADiAN constitution: self-government.

interpretation laid down by the English Courts as
applicable to such Acts/*^ the provincial Courts had
held that only property which the successor claims
under and by virtue of Quebec law was touched by
the statute and the Privy Council sustained this
view.

In 1911, the question before the Board was as
to the New Brunswick Succession Duty Act.^ The
province claimed — just as the province of Quebec
had claimed in the case last noted — to collect the
duty in respect of property situate in the province,
but forming part of the estate of a person who
died domiciled in Nova Scotia. It was contended
that the rule of restrictive interpretation should be
applied; but the Board held that while the rule or
principle that personal property (mohilia) is sup-
posed to accompany the person of its owner was
a just and expedient rule as between nations and
had been given full effect in the construction of
taxing statutes both English and colonial, never-
theless its application might be excluded by the use
of apt and clear words in a statute for the purpose,
and that this had been done by the New Brunswick
statute. The legislature of New Brunswick, it was
held, had full authority to disregard the interna-
tional rule. It was further contended that the tax
was really a tax on the succession which had taken
place in Nova Scotia under Nova Scotia law and
that it was not therefore taxation '^ within the pro-
vince.'' As to this their Lordships held that the
mere calling of the tax a succession duty did not
alter the fact that it was by the Act laid on the
corpus of the property and that its payment was
made a condition of the grant of ancillary probate
by the New Brunswick Courts, under which alone

^°See ante. p. 76; also the next case.

^R. V. Lovitt (1912), A. C. 212; 81 L. J. P. C. 40.

TAXATION. 657

the executors were ' entitled to collect the debt in
the province. As the next case indicates, these fea-
tures were wanting in the Quebec statute in ques-
tion in Lambe v. Manuel .^^

The latest case is Cotton v. R}^ from which the
Board's judgment in the first of the above extracts
is taken, substantially adopting as the legal defini-
tion of *^ direct taxation '' the economic definition
of John Stuart Mill. The Quebec Succession Duty-
Act in question in that case provided that:

"All transmissions, owing to death, of the property in,
usufruct or enjoyment of, moveable or immoveable property
in the province shall be liable to the following taxes, calcu-
lated upon the value of the property transmitted, &c.''

And the method of collection is thus described by
Lord Moulton:

" There is nothing corresponding to probate in the Eng-
lish sense ; but there is an obligation on ^ every heir, uni-
versal legatee, legatee by general or particular title, executor,
trustee, and administrator, or notary before whom a will has
been executed ' to forward within a specified time to the col-
lector of provincial revenue a complete schedule of the estate,
together with a declaration under oath setting forth various
matters relating thereto."

A declaration by one relieved the others; but
the declarant, whoever he might be — in most cases,
as the Board understood, the notary before whom
the will had been executed — could be sued for the
amount of the duty as fixed by the Act. No title
was to vest in any beneficiary if the taxes were
unpaid. The property in regard to which the dis-
pute had arisen as to the right of the province to
exact the duty was personal property actually situ-
ate outside the province, though the deceased had

'" See ante, p, 655.

^^ (1914) A. C. 176; 83 L. J. P. C. 105; ante, p. 651.

CAN. CON. 42

658 CANADIAN CONSTITUTION : SELF-GOVERNMENT.

died domiciled in the province. "Where the benefi-
ciaries lived does not appear. Their Lordships dis-
regarded again the tax upon the ^^ transmission '^
and in view of the obligation imposed upon the de-
clarant held that the tax was indirect, not being
demanded from the person intended to bear it but
from some one — not necessarily nor even usually
a person beneficially entitled to any part of the es-
tate transmitted — who was expected to recoup him-
self '^ from the assets of the estate or more accur-
ately, from the persons interested therein.'^

This disregard by the Board of the expressly
laid tax upon ^^ transmission,'' following upon the
view expressed in LoviWs Case that to call a tax
a succession duty did not relieve the Court of the
duty to examine the actual incidence of the tax,
brings both cases into line with the earlier case in
which a so-called Insurance ^ * License ' ' Act was
held to be in its actual operation a stamp Act and,
as payable, indirect taxation.^ In the Cotton Case
one example of the actual operation of the Act was
indicated, from which it may be argued that the
Board was of opinion that in no case and by no
method could a provincial legislature tax property
situate abroad to which a person resident abroad
might succeed upon the death of a domiciled inhab-
itant of the province. In that case under the Que-
bec Act the province would be collecting from the
declarant a tax which, it was premised, could be
collected in no other way. But if the beneficiary,
in order to get possession abroad, were obliged to
procure probate or letters of administration from
the provincial Courts, either himself or through
executors or other administrators, there is nothing
apparently to weaken the principle laid down in

^ Atty.-Gen. of Quedec v. Queen Ins. Co. (1878), 3 App. Cas.
1090. It is to be noted, however, that this case is not mentioned
in the judgment in Cotton v, R.

TAXATION. 659

Lovitt's Case that the province as a condition of
the grant conld exact a duty, the amount of which
could be fixed on any basis thought proper ; for ex-
ample, the total value of the property left by the
deceased regardless of its local situation. The judg-
ment in Cotton's Case is apparently based on a
strict view of the actual obligation to pay as fixed
by the statute;^ and the phrase discussed was ** di-
rect taxation '' only and not the phrase ^^ within
the province. '^ Lord Moulton's statement that:

" Indeed the whole structure of the scheme of these suc-
cession duties depends on a system of making one person pay
duties which he is not intended to bear, but to obtain from
other persons/'

is not to be taken as affirming that all succession
duties so called are necessarily indirect taxation.
Where the property passing is situate within the
province imposing the tax, that tax can be imposed
or be made a charge on the property itself or its
payTnent can be made a condition of the grant of
probate or of Letters of Administration; as was
held by the Privy Council in Levitt's Case in which
both reasons were given for upholding the New
Brunswick Succession Duties Act.* In a recent
case in British Columbia, the Succession Duty Act
of that province, which in its main outlines closely
resembles the New Brunswick statute, was held
valid so far as related to property within the pro-
vince.^ It was considered that Lord Moulton in the
Cotton Case was —

'^ speaking of the scheme of the Quebec Act then under
examination and not of succession duties in general, as if the
phrase ' Succession duty ' had a well known and definite
legal significance. Its real meaning must be gathered from

= See Re Doe (1914), 19 B. C. 5?6.

*R. V. Lovitt (1912), A. C. 212; 81 L. J. P. C. 140.

"i^e Doe, 19 B. C. 536.

660 CANADIAN constitution: self-government.

the statute in which it is used; the real character of the tax,
whatever it may be styled, depends upon its intended inci-
dence as disclosed by the statute itself."

On the other hand, the Succession Duties Act of
Alberta was recently held ultra vires on the ground
that the taxation was indirect, the liability being im-
posed on the personal representative and not on the
beneficiaries or on the property.^^

Upon a careful examination of the judgments
of the Privy Council the question is suggested : Can
a tax be considered as laid upon anything other
than some person or some property! What is the
subject matter of a tax! A person may be com-
pelled to pay, and a tax may be levied out of pro-
perty; but a tax upon a transaction or a succession
or other intangible concept is but a name for a tax
upon some person concerned in the transaction or
interested in the property passing from the de-
ceased. In every case before the Privy Council the
intangible has been disregarded; but in nearly all
the cases a property tax, charged upon and payable
out of the property, has been referred to as a recog-
nized method of enforcing contribution to the
state's expenditures. In a sense, perhaps, the con-
tribution is borne by the person or persons inter-
ested in the property; and it is this incidence upon
persons, it is true, that is alone considered in the
definition of ^ ^ direct taxation ' ' which has now been
^^ substantially '' adopted by the Privy Council.^
But a too literal application of the definition would
make all taxes on property (so called) indirect tax-
ation. The owner, if resident, could, of course, be
caught by a direct personal tax based upon the
value of his property ; but if he were a non-resident
of the province he could not be touched by provin-

'" Re Oust, 18 D. L. R. 647.
® See ante, p. 651.

TAXATION. 661

cial taxation. That such is not the position is uni-
versally conceded in actual practice in Canada and
has been recently affirmed by the Supreme Court of
Canada."^ Municipal taxation of the interest of a
non-resident in grazing leases of Crown lands in
Saskatchewan was upheld.

Within the Province: — The result, it is submit-
ted, is that any person found within a province may
be legally taxed there ;^ and there is no constitu-
tional limitation which precludes a province from
adopting as the basis of such taxation the wealth
of the individual, whether that wealth consists in
property at home or abroad and whether the in-
come— if that be the basis of taxation — ^be received
at home or re-invested abroad.^ As stated by the
Privy Council in a case from the colony of Victoria,
without any suggestion that the principle did not
apply to colonial taxation:

" There is nothing in the law of nations which prevents
a government from taxing its own subjects on the basis of
their foreign possessions. . . . But the question is one of
discretion and is to be answered by the statutes under which
each state levies its taxes and not by mere reference to the
laws which regulate successions to real and personal prop-
erty;" ^«

and this case is spoken of in Lovitt's Case^ without
any intimation that a Canadian province is in a
position in this regard ditferent from that of a col-
ony under one legislature, or different from that of
the provinces before Confederation. As already

^ Smith v. Vermillion Hills, 49 S. C. R. 563; and see Re Doe,
19 B. C. 536.

^Lamhe's Case, 12 App. Cas. 575; 56 L. J. P. C. 87.

® The English authorities as to the sweep of tax Acts are col-
lected in the chapter on " Exterritoriality," ante, p. 75.

'' Blackivood v. R. (1882), 8 App. Cas. 82 ; 52 L. J. P. C. 10.

^Ante, p. 656.

662 CANADIAN constitution: self-government.

pointed out," there is no question of competition
with federal jurisdiction ; it is a question of the
plenary power of a provincial legislature acting
within its sphere. No point of self government is
withheld,^ except that provincial taxation must be
laid directly upon the person from whom contribu-
tion to provincial expenditures is to be exacted.
That condition observed, the basis of the tax may
be whatever the legislature pleases.

And the same principle applies to a tax on pro-
perty. Property outside the province cannot of
course, though its owner within may, be taxed; but
property within may be taken to answer provincial
needs in such shape, in whole or in part, as the
sovereign legislature of the province in its wisdom
or unwisdom* deems proper, regardless of the
whereabouts of those interested in the property.

As to probate or succession or legacy duty —
whatever name may be given to an inheritance tax
— if the beneficiary is ^' found '^ in the province he
may be taxed upon the basis of property abroad to
which he has succeeded;^ and if the property pass-
ing is situate within the province it may be made
available for public needs, no matter where the
beneficiary to whom it passes may reside.® Where
neither property nor beneficiary is within the pro-
vince, it may be that any attempt to make the value
of the property the basis in whole or in part of the
sum to be exacted as a condition of local probate,
would be held to be indirect taxation; but Lovitt's
Case seems opposed to such a view, and Cotton's
Case does not in terms affirm it, though in principle
it may go that far.

""Ante, p. 648.

^ Re References; extract ante, p. 442.

*See ante, p. 358.

^ See ante, p. 661.

^ Lovitfs Case, ante, p. 656.

TAXATION. 663

in this connection reference should not be omit-
ted to another case which came before the Privy
Council in 1908/ A transfer of property in the
State of New York made by a domiciled resident of
Ontario in contemplation, as alleged, of death, was
after his death attacked by the Attorney-General of
the province as a fraud upon the Succession Duty
Act; and the property was therefore, under the
terms of the Act, claimed to be part of the estate
of the deceased. The attack failed, and in the judg-
ment of the Privy Council as delivered by Lord
Collins there is some sweeping language to the
effect that neither directly nor indirectly can pro-
perty outside a province be touched by provincial
taxation. But in the Cotton Case the Board ex-
pressly declined to rest its judgment upon the ear-
lier case, because, as Lord Moulton expressed it,
the circumstances of that case were so special and
because there was so much doubt as to the reason-
ing on which the decision was based. Evidently the
broad proposition above mentioned did not com-
mend itself to their Lordships.^

Owing to the provision in the United States con-
stitution that ^^ no capitation or other direct tax
shall be laid unless in proportion to the census,"
the cases there practically limit direct taxation to
poll taxes and taxes on land, and are of little as-
sistance in deciding what is direct taxation within
the meaning of the British North America Act.

' Woodruff V. Atty.-Gen. of Ont. (1908), A. C. 508 ; 78 L. J. P. C.
10.

* See also on the general question Nickle v. Douglas, 37 U. C. Q.
B. at p. 62, per Burton, J.A.; LeproJian v. Ottawa, 2 Ont. App. R.
at p. 534, per Hagarty, C.J., who expresses an opinion against
provincial taxation based on property situate outside the province.
As already intimated this chapter should be read with the chapter
on " Exterritoriality," ante, p. 65.

664: CANADIAN" CONSTITUTION": SELF-GOVERNMENT.

License Fees: — The only other class of section
92 expressly conferring npon the provinces power
to tax is No. 9: — *^ Shop, saloon, auctioneer, and
other licenses in order to the raising of a revenue
for provincial, local, or municipal purposes;^'® and
the license fees there authorized have been finally
held to be direct taxation.^^ And the weight of judi-
cial opinion would seem to be that a provincial
legislature cannot impose indirect taxation under
any of the classes of section 92. The payment of
provincial officers^ and the *^ maintenance " of cer-
tain provincial institutions^ and of provincial
Courts^ rest with the provinces; and the question
has arisen as to the means open to a provincial leg-
islature in providing funds for such maintenance.
In the '' exhibits '^ case above referred to* the
Privy Council declined to determine —

" whether, if a special fund had been created by a pro-
vincial Act for the maintenance of the administration of
justice in the provincial Courts, raised for that purpose, and
not available as general revenue for general provincial pur-
poses, in that case the limitation to direct taxation would
still have been applicable."^

^ Nos. 5 and 15 are the only other express revenue items.

^"Brewers' License Case (1897), A. C. 231; 66 L. J. P. C. 34.
See also the cases noted, post, pp. 666-7.

^ Section 92, No. 4.

=^ 76., Nos. 6 and 7.

'76., No. 14.

* Atty.-Gen. v. Reed, 10 App. Cas. 141 ; 54 L. J. P. C. 12. See
ante, p. 652.

^ In the same case in the Supreme Court of Canada (8 S. C. R.
408), Gwynne, J., had explicitly held that " the provincial legisla-
tures cannot by an Act of theirs authorize the raising a revenue
by any mode of taxation other than direct," citing Atty.-Gen.
(Que.) V. Queen Ins. Co., (1878), 3 App. Cas. 1090; but the above
extract would indicate that the Privy Council did not in 1884 con-
sider the question determined by any previous decision of the
Board. See also per Wilson, J., in R. v. Taylor, 36 U. C. Q. B.
183, at p. 201 ; and per Duff, J., in Re Companies, 48 S. C. R
at p. 417.

TAXATION. 665

There is no subsequent direct pronouncement by
the Board upon the question; but the decision of
that tribunal that the powers which a provincial
legislature can bestow upon a municipality^ must
be limited to such powers as such a legislature
itself possesses under the other classes of section
92,^ would seem to afford a strong argument that
provincial power to raise funds for *^ mainten-
ance '^ is limited to direct taxation under classes
Nos. 2 and 9.

The question has, however, been much litigated
in Manitoba. Following the judgment of the Privy
CounciP the Court of Queen's Bench of that pro-
vince held® that the then existing provincial stat-
utes requiring payment of fees by means of law
stamps on proceedings in that Court were ultra
vires. Thereupon, acting upon the distinction sug-
gested by the Committee, the Manitoba legislature
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 being impugned was up-
held by Mr. Justice Dubuc, but, on appeal to the
full Court, this decision was reversed.^*^ and the
statute pronounced ultra vires. In the opinion of
the Court, the only exception to the limitation laid
down in class No. 2 is that expressed in No. 9, but
as the Privy Council has since held that license fees
are direct taxation,^ the case may be taken as a
decision that there is no exception to the rule. The
Manitoba legislature surmounted the difficulty by

"Under s. 92, No. 8: — "Municipal Institutions."

'Local ProMUtion Case (1896), A. C. 348; 65 L. J. P. C. 26.

^ Atty.-Gen. (Que.) v. Reed, ubi supra.

^Plummer Wagon Co. v. Wilson, 3 Man. L. R. 68.

^"Dulmage v. Douglas, 3 Man. L. R. 562; 4 ib. 495.

^Ante, p. 664.

666 CANADIAN constitution: self-government.

declaring law stamps to be a direct tax and making
good this declaration by enacting that such fees, so
payable in stamps, are not to form any part of the
costs of an action taxable between party and party,
but are to be borne once for all by the party actu-
ally paying them in the first instance. This Act
was declared int7^a vires by the full Court."

Examples of Provincial Taxation: — The follow-
ing kinds of taxation have been held to be within
the legislative competence of a provincial legisla-
ture:

A tax, by way of license fee, upon brewers.^

An annual tax on ferrymen and ferry compan-
ies.^

A tax, by way of license fee, upon insurance
agents.^

A tax on laundries.®

A tax by way of license fee, on Canadian or
foreign companies doing business in a province.^

A license tax on merchants, wholesale and re-
tail.^

* Crawford v. Duffield, 5 Man. L. R. 121.

^Brewers' License Case (1897), A. C. 231; 66 L. J. P. C. 34;
Fortier v. Lamle, 25 S. C. R. 422 ; R. v. Halliday, 21 0. A. R.
42; R. V. Neiderstadt, 11 B. C. 347; Severn v. R., 2 S. C. R. 70,
may now be considered as finally overruled. See, however, per
Gwynne, J., in Fortier v. Lamde uH supra, and in Molsons v.
Laml)e, 15 S. C. R. at p. 288-9.

^Longueuil Nav. Co. v. Montreal, 15 S. C. R. 566.

'^English v. O'Neill (1899), 4 Terr. L. R. 74.

^ Lee V. Montigny, 15 Que. S. C. 607; but see R. v. Mee Wah, 3
B. C. 403.

' Halifax v. Western Ass'ce Co., 18 N. S. 387 ; Halifax v. Jones,
28 N. S. 452. In the earlier case the tax was upheld under No. 9 of
s. 92, and the scope of No. 2 was limited in a way inconsistent
with Dow V. Black. See ante, p. 649.

*Weiler v. Richards (1890), 26 Can. Law. Jour. 338 (B.C.)./

TAXATION. 667

A tax on mortgages held by a loan company.®
A tax on the income received in a province by
an English company.^*

A tax on physicians for the support of a col-
lege.'°

A license tax on ** any trade, profession, occu-
pation, or calling. '^^

A stamp duty on sales of land.^

But, as already noted, a province cannot, by
calling a tax a license fee when it is in reality a
stamp Act, impose indirect taxation.^ The court will
consider the real incidence of the tax, as indicated
by this passage from a later case:*

" It was argued that the provincial legislatures might, if
the judgment of the Court below were upheld, impose a tax
of such an amount and so graduated that it must necessarily
fall upon the consumer or customer, and that they might thus
seek to raise a revenue by indirect taxation in spite of the re-
striction of their powers to direct taxation. Such a case is
conceivable. But if the legislature were thus, under the guise
of direct taxation, to seek to impose indirect taxation, noth-
ing that their Lordships have decided or said in the present
case would fetter any tribunal that might have to deal with
such a case if it should ever arise.^'

And in a very recent case the Privy Council has
held that a provincial Act which imposed upon a
federal company the obligation to take out a license,

^Re Yorkshire Guarantee Corp. (1895), 4 B. C. 258. "The
tax is not imposed on the dollars, but on the owners of the dol-
lars:" per Drake, J., at p. 274.

»" Re North of Scotland, do., Mortgage Co., 31 U. C. C. P. 552,
referred to by Idington, J., in Lovitt v. R., 43 S. C. R. at p. 125.

^"College de Medecins v. Brigham (1888), 16 R. L. 283.

^Ex p. Fairlairn (1877), 18 N. B. 4 ; Jones v. Marshall (1880),
20 N. B. 61; Ex p. DiUee, 25 N. B. 119.

^Choquette v. Lavergne, R. J. Q. 5 S. C. 108; (sub nom.
Lamonde v. Lavergne), 3 Q. B. 303.

^ Ante, p. 651.

* Brewer's License Case (1897), A. C. 231; 66 L. J. P. C. 34.

668

CANADIAN CONSTITUTION : SELF-GOVERNMENT.

for which a fee was payable, as a condition prece-
dent to the exercise of its power to carry on its
business in the province was invalid;^ but such a
tax without such a condition would no doubt be
a valid imposition.^^

'^John Deere Plow Co. Case; extract ante, p. 444.

'^''See International Book Co. v. Brown (1906), 13 Ont. L. R.

644.

CHAPTER XXXI.

Aliens: Naturalization: Indians: Immigration.

The provisions of the British North America
Act touching these topics are as follows —

VI. Distribution of Legislative Powers.

Powers of the Parliament.

91. . . , the exclusive legislative authority of the par-
liament of Canada extends to all matters coming within the
classes of subjects next hereinafter enumerated; that is tar
say: — ....

24. Indians and lands reserved for the Indians.

25. Naturalization and aliens. . . .

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 parlia-
ment of Canada may from time to time make laws in relation
to agriculture in all or any of the provinces, and to immigra-
tion into all or any of the provinces; and any law of the
legislature of a province relative to agriculture or to immigra-
tion shall have effect in or for the province as long and as
far only as it is not repugnant to any Act of the parliament
of Canada.

Aliens: Naturalization: — In an earlier chapter
of this book the position of a British colony in ref-
erence to legislation respecting aliens and natural-
ization was discussed at some length.^ What was
there said may be summed up shortly as introduc-
tory to an examination of the position as between
the federal and provincial legislatures.

^Chap. IX., ante, p. 165.

670 CANADIAN constitution: self-government.

Alienage is the antithesis of nationality; and
British nationality in its wide imperial sense can
be conferred only by or under national, that is to
say imperial, Act of parliament. The extent of
colonial legislative power along this line depends
therefore upon the colonial charter read in the light
of the Colonial Laws Validity Act. In other words
it depends upon permissive imperial legislation;
and prior to the imperial Act of 1914^ no colonial
Act could, it is conceived, alter the status of an
alien or— which is the same thing — confer full im-
perial nationality.^ It was even considered doubt-
ful whether a colonial legislature could impart to'
aliens resident in the colony the privileges or any
of the privileges of naturalization to be exercised
or enjoyed within the limits of the colony. There
were two imperial statutes which were considered
to stand in the way.* Apart from these, there
would seem to be no doubt that each colony might
determine as it might see fit the rights, civil or
political, which an alien should enjoy in the colony.
But, however this may be, the imperial Naturaliza-
tion Act of 1847,^ to do away with any doubt upon
the subject, enacted:

^All laws, statutes and ordinances which shall hereafter
be made and enacted by the legislatures of any of Her Ma-
jesty's colonies or possessions abroad for imparting to any
person or persons the privileges or any of the privileges of
naturalization, to be by any such person or persons exercised
and enjoyed within the limits of any such colonies and pos-
sessions respectively shall within such limits have the force
and authority of law, any law, statute, or usage to the con-
trary in anywise notwithstanding."

2 " British Nationality and Status of Aliens Act, 1914 " (Imp.) ;
acted upon in Canada in The Naturalization Act, 191Jf (Dom.),
which came into force on 1st January, 1915.

' See ante. p. 179.

*See note (2), ante, p. 180.

" 10 & 11 Vict. c. 83 (Imp.) There was also a clause validating
past colonial Acts of like character.

aliens: naturalization. 671

Canadian Legislation as to Aliens :— This was
the imperial Act in force at the date of the passage
of the British North America Act, 1867; and there
is no doubt the power conferred by section 91, No.
25, upon the parliament of Canada to make laws
concerning " Naturalization and Aliens " was a
power subject to the limitations expressed in the
imperial statute. Any doubt upon this point® dis-
appears in the face of the imperial Naturalization
Act of 1870,^ passed since Confederation, which re-
enacts the above clause of the Act of 1847. Cana-
dian legislation has at all events proceeded on that
assumption. The result would appear to be that
the status of alienage could not be altered by Cana-
dian legislation; in other words the status of a
national British subject could not be conferred upon
an alien, although within Canada he might be given
all the rights of a natural-born British subject.
And, apart from authority, it would appear reason-
able to read the imperial statute as conferring
power upon the legislature of a British possession*
to prescribe not only the conditions precedent upon
which an alien should be given the privileges or
some of the privileges of naturalization, but also
whether he should be given all or only some; and,
if only some, what particular privileges of a na-
tural-born British subject he should have conferred
upon him. As to aliens, apart from any question
as to their naturalization, full legislative power is
conferred upon the parliament of Canada, so that
a provincial legislature cannot discriminate against
an alien upon the ground of his lack of British

' See ante, p. 63.

^ 33 Vict. c. 14 (Br. and Imp.) ; see ante, p. 176. The Canadian
Act copies it closely; see R. S. C. (1906), c. 77.

•As already pointed out (ante, p. 179, note), the parliament of
Canada has been given jurisdiction over naturalization by two
imperial Acts, by the British North America Act, 1867, and the
Naturalization Act, 1870 (Imp.)

672 CANADIAN constitution: self-government.

nationality; but he may nevertheless be under dis-
ability, civil or political, by reason for example of
racial descent, a disability which he would share
with natural-born or naturalized British subjects of
like extraction.^

Privy Council Decisions: — The matter however
is one upon which the authorities are not at all in
a satisfactory shape. It is a disturbing circum-
stance that in the two cases in which the Privy
Council has been called upon to draw the' line be-
tween federal and provincial jurisdiction in regard
to these two subjects of naturalization and aliens —
that is to say, aliens and the naturalization of
aliens — no reference appears in the judgments of
the Board to any limitation of federal power by
reason of Canada ^s position as a colony generally
or under the imperial Naturalization Act, 1870.
These two cases call for careful study.

In the earlier case ^^ the provincial legislation im-
pugned provided that ^* no boy under the age of 12
years and no woman or girl of any age, and no
Chinaman, shall be employed in or allowed to be for
the purpose of employment in any mine to which this
Act applies, below ground.'' This enactment was
upheld as within provincial competence by the
Courts of the province,^ but the Privy Council held

^ Quong Wing v. R., 49 S. C. R. 440. See ante, p. 486.

^"Vnion Colliery Co. v. Bryden (1899), A, C. 580; 68 L. J. P.
C. 118.

^ 5 B.C. 306. In earlier cases in British Columbia, Acts directed
against the Chinese had been viewed with judicial disfavor as
an infringement upon the power of the Dominion parliament to
regulate trade and commerce, and as a contravention of Imperial
treaties with China: see Tai Sing v. Maguire, 1 B. C. (pt. 1) 101;
R. V. Wing Chong, 1 B. C. (pt. 2) 150; R. v. Gold Comm. of Vic-
toria, 1 B. C. (pt. 2) 260; R. v. Victoria, 1 B. C. (pa. 2) 331, and
R. V. Mee Wah, 3 B. C. 403, in all of which differential taxation of
Chinese was held ultra vires. Having regard to the " pith and
substance " of the various impugned Acts, the judgment in

aliens: naturalization. 673

it ultra vires as an invasion of the federal field. In
the second case ^ the provincial legislation pro-
vided that no Japanese, whether naturalized or not,
should have his name placed on the register of
voters or be entitled to vote. The provincial Courts
considered the matter concluded by the judgment of
the Privy Council in the earlier case and held the en-
actment ultra vires; but again they were reversed
by the Privy Council and the Act was held to be
within provincial competence. The earlier case was
thus distinguished:

"That case depended upon totally different grounds.
This Board, dealing with the particular facts of that case,
came to the conclusion that the regulations there impeached
were not really aimed at the regulation of coal mines at all.
but were in truth devised to deprive the Chinese, naturalized
or not, of the ordinary rights of the inhabitants of British
Columbia and, in effect, to prohibit their continued resi-
dence in that province, since it prohibited their earning a
living in that province. It is obvious that such a decision
can have no relation to the question whether any naturalized
person has an inherent right to the suffrage within the
province in which he resides.^'

Nevertheless it is not easy to reconcile the views
expressed in these two cases as to the scope of the
words *' naturalization and aliens '^ or to harmon-
ize the reasons given in support of the respective
decisions; as the following extracts will show:

(1) Extract from Lord Watson's judgment in
Bry den's Case,

" Every alien when naturalized in Canada becomes ipso
facto a Canadian subject of the Queen; and his children are

Bryden's Case would seem to support those decisions; while the
views expressed in Tomey Homma's Case, infra, would overrule
them.

' Yancouver City Collector of Votes v. Tomey Homma (usually
cited as Tomey Romma's Case), 1903, A. C. 151; 72 L. J. P. C. 23.

CAX. CON. — 43

674 CANADIAN constitution: self-government.

not aliens, requiring to be naturalized, but are natural born
Canadians. It can hardly have been intended to give the
Dominion Parliament the exclusive right to legislate for the
latter class of persons resident in Canada;^ but section 91,
No, 25, might possibly be construed as conferring that
power in the case of naturalized aliens after naturalization.
The subject of ' naturalization ' seems prima facie to include
the power of enacting what shall be the consequences of
naturalization^ or, in other words, what shall he the rights
and privileges pertaining to residents in Canada after they^
have been naturalized. It does not appear to their Lord-
ships to be necessary in the present case to consider the
precise meaning which the term ' naturalization ' was in-
tended to bear as it occurs in section 91, No. 25. But it
seems clear that the expression ' aliens ' occurring in that
clause refers to, and at least includes, all aliens who have
not yet been naturalized; and the words 'no Chinaman,' as
they are used in section 4 of the provincial Act, were probably
meant to denote, and they certainly include, every adult
Chinaman who has not been naturalized.* . . ."

^' The provisions, of which the validity has been thus
affirmed by the Courts below, are capable of being viewed
in two different aspects, ** according to one of which they
appear to fall within the subjects assigned to the provincial
parliament by section 92 of the British North i^merica Act,
1867, whilst, according to the other, they clearly belong to
the class of subjects exclusively assigned to the legislature
of the Dominion by section 91, No. 25. They may be re-
garded as merely establishing a regulation applicable to the

» That is, natural-born Britisli subjects of foreign extraction.
Any legislation specially affecting such a class would be neces-
sarily based upon race distinctions, real or supposed; and this
passage affirms that such a distinction does not in any case serve
to fix the line between federal and provincial authority; in other
words, provincial legislation is not incompetent because based
upon racial distinctions, if otherwise within its powers, as,
indeed, Tomey Homma's Case decides. In Australia, on the con-
trary, the federal Parliament alone has power to pass " special
laws for the people of any race."

*In Tomey Homma's Case it is said that the legislation in
Bryden's Case covered " Chinese naturalized or not." See above
extract.

° See ante, p. 480.

aliens: naturalization. 675

working of underground coal mines; and if that were an
exhaustive description of the substance of the enactments,
it would be difficult to dispute that they were within the
competency of the provincial legislature by virtue either of
section 92, Nos. 10 or 13. . But the leading feature of the
enactments consists in this — that they have, and can have,
no application except to Chinamen who are aliens or natural--
ized subjects,® and that they establish no rule or regulation,
except that- these aliens or naturalized subjects shall not
work or be allowed to work in underground coal mines
within the province of British Columbia.

" Their Lordships see no reason to doubt that by virtue
of section 91, No. 25, the legislature of the Dominion is in-
vested with excltisive authority in all matters which directly
concern the rights, privileges, and disabilities of the class
of Chinamen who are resident in the provinces of Canada J
They are also of opinion that the whole pith and substance
of the enactments of section 4 of the Coal Mines Eegula-
tion Act, in so far as objected to by the appellant company,
consists in establishing a statutory prohibition which affects
aliens or naturalized subjects and, therefore, trenches upon
the exclusive authority of the Parliament of Canada, The
learned Judges who delivered opinions in the full Court
noticed the fact that the Dominion legislature had passed
a ' Naturalization Act,' No. 113 of E. S. C. 1886, by which
a partial control was exercised over the right of aliens. Mr.
Justice Walkem appears to regard that fact as favourable to
the right of the provincial parliament to legislate for the
exclusion of aliens, being Chinamen, from undergroimd
coal mines. The abstinence of the Dominion Parliament

* It seems to have been assumed or taken as proved that there
were in British Columbia in 1890, when the prohibition against
Chinese labor underground in mines was first enacted, no
Chinese males over twelve years of age who were natural-born
British subjects; and that this stamped the enactment as a
colorable invasion of the federal field relating to " naturaliza-
tion and aliens." The same argument would stamp with the
same character the franchise clause in question in Tomey Hom-
ma's Case; for there were not, it is thought, any natural-born
British subjects of Japanese extraction over 21 years of age in
British Columbia at the date of the franchise enactment in ques-
tion.

^ That is, aliens or naturalized. See last note. *'

676 CANADIAN constitution: self-goveknment.

from legislating to the full limit of its powers ^ could not
have the effect of transferring to any provincial legislature
the legislative power which had been assigned to the Do-
minion by section 91 of the Act of 1867."

(2) Extract from Lord Halshury's judgment in
Tomey Momma's Case.

" The first observation which arises is that the enact-
ment supposed to be ultra vires and to be impeached upon
the ground of its dealing with alienage and naturalization,
has not necessarily anything to do with either. A child of
Japanese parentage born' in Vancouver City is a natural
born subject of the King, and would be equally excluded
from the franchise.^ The extent to which naturalization
will confer privileges has varied both in this country and
elsewhere. From the time of William III. down to Queen
Victoria, no naturalization was permitted which did not ex-
clude the alien naturalized from sitting in parliament or in
the Privy Council.

"In Lawrence's Wlieaton, 903 (2nd annotated ed. 1863),
it is said that '^though in the United States the power of
naturalization be nominally exclusive in the Federal govern-
ment, its operation in "the most important particulars,
especially as to the right of suffrage, is made to depend on

*The Canadian Naturalization Act provided, inter alia, that
aliens may hold and transmit property of any kind (s. 3), and
that an alien to whom a certificate of naturalization is granted
shall, within Canada, be entitled to all political and other rights,
powers, and privileges, and be subject to all obligations to which
a natural born British subject is entitled or subject within
Canada (s. 15). Provincial Acts as to the property rights of
aliens have been questioned by Canadian Ministers of Justice,
but the point has not been before the Courts, the provincial Acts
not being restrictive, as a rule. The validity of provincial Acts
debarring aliens from acquiring Crown land by pre-emption or
direct, purchase has not been questioned in any reported case.

^Mutatis mutandis, would not this sentence have been pro-
perly used in Bryden's Case? In other words, would not a
Chinaman of any age be excluded from mines underground under
the provincial Act there in question, even if he had been born
in British territory; say in Hong Kong? The legislation in both
these cases seems really to have been based on distinctions of
race, not of nationality.

ALIENS : NATURALIZATION. 677

the local constitution and laws/^^ The term ' political
rights ' used in the Canadian Naturalization Act is, as Mr.
Justice Walkem very justly says, a very wide phrase, and
their Lordships conpur in his observation that, whatever it
means, it cannot be held to give necessarily a right to the
suffrage in all or any of the provinces. In the history of
this country, the right to the franchise has been granted and
withheld on a great number of grounds, conspicuously upon
grounds of religious faith, yet no one has ever suggested that
a person excluded from the franchise was not under allegi-
ance to the Sovereign.

" Could it be suggested that the province of British
Columbia could not exclude an alien from the franchise in
that province? Yet if the mere mention of alienage in the
enactment could make the law ultra vires, such a construc-
tion of section 91, No. 25, would involve that absurdity.
The truth is that the language of that section does not pur-
port to deal with the consequences of either alienage or
naturalization. It undoubtedly reserves these subjects for
the exclusive jurisdiction of the Dominion — that is to say,
it is for the Dominion to determine wJiat shall constitute the
one or the other — hut the question as to what consequences
shall follow from either is not touched.^ The right of pro-
tection and the obligations of allegiance are necessarily in-
volved in the nationality conferred by naturalization; but
the privileges attached to it, where these depend upon
residence, are quite independent of nationality."^

"Art. I., sec. 8, of the Constitution of the United States con-
fers on Congress power to " establish an uniform rule of natural-
ization." This clearly does not touch the consequence of natural-
ization. Art. XIV. (adopted in 1868), penalizes such states as
unduly limit the franchise, by decreasing their representation
in the House of Representatives at Washington.

^With this compare not only Lord Watson's language in the
Bryden Case above, but also the language of Griffith, C.J., in a
case before the High Court of Australia. RoMelmes v. Brenan
(1906), 4 Comm. L. R. 395: "The power to make such laws as
parliament may think fit with respect to aliens must surely if-.it
includes anything include the power to determine the conditions
under which they may be permitted to remain in the country and
the conditions under which they may be deported from it."

^ Naturalization, in these days, has very seldom, if ever, any
other object than to confer political privileges; that is to say, to
give to a person really identified by residence with the nation's
affairs, a voice in its government. All else is a negligible quan-

678 CANADIAN constitution: self-government.

The reconcilation of the conflicting views indi-
cated in the italicized passages must be left for fu-
ture adjudication. Lord Halsbury's dictum that
the parliament of Canada may define what shall
constitute alienage would appear to be opposed to
earlier decisions or dicta of the Board ;^ but, apart
from that, it is clear that the actual decision in
Bry den's Case is not in terms approved. If the
view taken by Lord Watson of the ** pith and sub-
stance '^ of the Act in question in that case was
correct, the actual decision stands ; but the view ex-
pressed as to the scope of the two words, ** natur-
alization " and ^* aliens *' respectively must be
taken to begverruled.

Preismt Position : — The question came before
the Supreme Court of Canada in a recent case
which has already been sulBficiently noticed.* In the
result, it appears clear that provincial legislation
may take a much wider scope than the views ex-
pressed in Bry den's Case would warrant. It is
suggested that the view which would reconcile all
difficulty is this, that it is for the federa,l parlia-
ment alone to say what disability an alien is to be
under in Canada through his lack of national char-
acter and how those disabilities may wholly or in
part be removed by the grant of a certificate of
naturalization; but that a provincial legislature,
while powerless to discriminate against any one by
reason of his lack of national character, may in its
legislation discriminate as it sees fit upon any other
lines.

tity. See ante, p. 167. The italicized sentence tallies closely with
what was said by McCaul, C.J., (7 B. C, at p. 372) : "Apart from
decisions binding upon me" (i.e.. Bryden's Case, supra), "I
would have considered that the authority of the Dominion Par-
liament becomes exhausted with the naturalization, and that the
person naturalized passes under the jurisdiction of the provincial
legislature to the same extent as if born a British subject."

' See ante, pp. 179-180.

* Quong Wing v. R., 49 S. C. R. 440. See ante, p. 486.

INDIANS. 679

Indians.

As natural-born British subjects segregated
into a class apart from the ordinary inhabitants of
the Canadian provinces, the Indians seem to fall
naturally into this chapter. Their lands and their
' title ' thereto have been the subject of discussion
elsewhere in this book;^ but the Indians themselves
as a special subject for federal legislation call for
some attention. As mentioned on a previous page,''
aliens and Indians are the only instances of persons
as a class being specifically enumerated as a subject
matter for legislation; and the view was expressed
that all laws in relation to aliens and Indians as
aliens or Indians respectively must emanate from
the parliament of Canada. As to Indians the auth-
orities are clear that in so far as the federal parlia-
ment has not made special provision as to their
privileges and disabilities they are subject as any
other inhabitant to the law of the province in which
they live. "Whether the federal parliament could
remove them entirely from the scope of provincial
law is, perhaps, doubtful; as a matter of fact, fed-
eral legislation has treated them as wards of the
nation standing in need of protective measures,
and has not attempted to exempt them from the
laws which govern ordinary citizens further than
such purely protective measures extend. Their
special privileges (if any) and their special disabil-
ities, as well as certain disabilities under which
others labor in dealing with them, are designed
for their own benefit only."^ So far as these do not
extend, Indians have the same rights and are sub-
ject to the same obligation to observe the law as the
ordinary inhabitant of a province. In an early caso

'See ante, p. 633.
^ See ante, p. 461.
^See the Indian Act, R. S. C. (1906), c. 81.

680 CANADIAN constitution: self-government.

in Ontario, for example, it was held that an Indian,
if otherwise qualified, might be elected to member-
ship in a municipal council;^ and in a more recent
case the Court of Appeal for that province held
without hesitation that the Ontario Medical Act ap-
plied to prevent an Indian from practising without
a license.^ In this case Mr. Justice Osier expressed
the view that the federal parliament might com-
pletely withdraw Indians from the scope of pro-
vincial law ; in other words, might legislate for them
in all their relations in life if deemed advisable.
In a later case in Manitoba the same rule of sub-
jection to provincial law in all matters not touched
by the federal Indian Act was laid down, and an
Indian was held entitled to deal freely with land
privately owned by him.^^ The provisions of the
provincial Estoppel Act were also applied in con-
struing the Indian's deed.

Provincial Discrimination: — A more difficult
question perhaps is whether a provincial Act can
single out Indians as a class to be debarred from
the benefit of provincial Acts. For example, can
they be debarred from the franchise, if otherwise
qualified to vote? In the Tomey Homma Case^ Lord
Halsbury treated it as beyond question that an
alien could be debarred from the provincial fran-
chise, meaning obviously on the simple ground of
alienage. If so, there would apparently be no ques-
tion as to the right to debar Indians simply as In-
dians. Such provisions relate to the provincial
constitution and the legislative power of a province
in that connection (section 92, No. 1) is guarded by
a non-ohstante later than that in section 91. But
how about municipal and school-board elections'?
Are they part of the constitution of the province?

*R. ex rel. Gihl) v. White, 5 Ont. Prac. R. 315.
'R. V. Hill (1907), 15 Ont. L. R. 406.
^° Sanderson v. Heap (1909), 19 Man. L. R. 122.
^ Extract ante, p. 676.

immigration. 681

Immigration.

The position of a British colony in reference to
immigration has already been sufficiently dealt
with,- and little need be added here. I'here is noth-
ing in the British North America Act to restrict in
this particular the plenary powers of legislation
conferred by it; and the doubt concerning the ex-
territorial restraint of-the person necessarily inci-
dent to deportation under our immigration legisla-
tion has been set at rest by the decision of the Privy
Council in the Cain S Gilhul'a Case.^ As between
the Dominion and the provinces there is a concur-
rent power to make laws on the subject of immigra-
tion, but the federal power is paramount and pro-
vincial legislation is operative so far only as it is
not repugnant to the provision made by federal
law. Upon this principle an Act of the legislature
of British Columbia placing restrictions upon Jap-
anese immigration into that province was held in-
valid as being repugnant to the imperial Japanese
treaty which had been adopted as part of the law
of Canada by the Japanese Treaty Act of 1907.''
And on the like ground of its repugnancy to the
federal Immigration Act, the provincial Immigra-
tion Act, 1908, was held inoperative.^

There are a number of cases in which the valid-
ity of Orders-in-Council purporting to have been
passed pursuant to the Immigration Act has been
questioned.^ Such Orders-in-Council must of course
be founded on and cannot go beyond the statute;
and the power conferred by the statute upon the

2 Chapter X.. ante, p. 192.
^ See ante, p. 106.

"■Re Nakane (1908), 13 B. C. 370; referred to ante, p. 143.
'Narain Singh (1908), 13 B. C. 477.

«For example, Re Narain Singh (1913), 18 B. C. 506; In re
Rahim (1911), 16 B. C. 471; Re Murphy (1910), 15 B. C. 401.

682 CANADIAN constitution: self-government.

Governor-General in Council cannot be delegated
to any official as, for example, to the Minister of the
Interior/

In an Australian case it was held that the word
** immigration " in the Commonwealth of Australia
Constitution Act, 1900, — an imperial Act — would
not cover the case of an Australian returning to
Australia after an absence during which the inten-
tion to return had always existed, but it was a ques-
tion whether true domicil was required or mere bona
fide residence and how the facts were to be investi-
gated and determined/ So far as the parliament of
Canada is concerned the meaning to be put upon the
word ^^ immigration '^ would probably be immater-
ial for under the opening clause of section 91 the
federal parliament would have plenary powers of
exclusion apart altogether from section 95/ But in
the case of the provinces, section 95 must, it is con-
ceived, be necessarily invoked and, if so, the view
taken by the High Court of Australia would limit
the range of provincial legislation. The further
view, too, might be taken as already intimated that
provincial law could not prohibit the immigration
of aliens as a class, but might reach them by dis-
crimination along liuQs other than that of lack of
British nationality. The ^^ Indians ^' of the British
North America Act are, of course, the Canadian
aborigines, so that they are not as a class of prac-
tical concern here. As a matter of fact, the control
of immigration into Canada is now, largely, if not
entirely, exercised under federal law.

'Re Behari Lai (1908), 13 B. C. 415.

^ Atty.-Gen. of Commonwealth v. Ah Sheung (1906), 4 Comm.
L. R. 949.

^ See ante, p. 192.

CHAPTEE XXXII.

** The Eegulation of Tkade and Commerce/^

(Section 91, No. 2.)

The exclusive authority of the parliament of
Canada to make laws in relation to all matters com-
ing within the class designated by the phrase ^^ the
regulation of trade and commerce '^ would mani-
festly, upon the bare words, cover a very large
field of possible legislation ; and naturally there has
been from the very beginning much discussion as
to its limits. Here, as in all other cases, the view
taken by the Privy Council must govern and for t^'
that sufficient reason the judgments of the Board
should first be examined. Not merely have the
lines been laid down in certain individual instances
but the reasons for so laying them down, the diffi-
culties to which a different interpretation would
lead, have been so stated as to make it possible to
indicate with a certain degree of assurance the
scope of federal authority under this head.

Parsons^ Case: — In the earliest and what may
still be called the leading case on this subject, an (
Act of the Ontario legislature prescribing certain
uniform conditions to be inserted in all fire insur-^.
ance policies in force in the province was attacked
as an unwarranted invasion of the federal field.^
The Act was upheld as a law relating to property^
and civil rights in the province; it was not, in the
opinion of the Board, a regulation of trade and
commerce within the meaning of that phrase in sec- j
tion 91, for reasons thus elaborated :

^Parsons' Case (1881), 7 App. Cas. 96; 51 L. J. P. C. 11.

684 CANADiAi^ constitution: self-government.

" The words ' regulation of trade and commerce ' in their
unlimited ^sense are sufficiently wide, if uncontrolled by the
^aatext and other parts of the Act, to include every regu-
lation of trade, ranging from political arrangements in re-
gard to trade with foreign governments, requiring the sanc-
tion 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 with classes of sub-
jects of national and general concern affords an indication
that regulations relating to general trade and commerce
were in the mind of the legislature when conferring this
power on the Dominion parliament. 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
oi 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 ' regulation 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 King-
dom should have ' full 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 same ^prohibitions, restrictions, and regula-
tions of trade.' Parliament has at various times since the
Union passed laws affecting and regulating specific trades
in one part 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 Act^ relating to bankruptcy, and various other matters.

^Ijkis. would seem to indicate that such Acts are not a "regu-
lation of trade and commerce." Nevertheless in Russell \. R. (7
App. Cas.' 829; 51 L. J. P. C. 77), involving the validity of the
Canada Temperance Act, 1878, Sir Montague E. Smith, in deliv-

THE REGULATION OF TRADE AND COMMERCE. 685

" 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 to trade requiring sanction of parliament, regu-
lations of trade in matters of inter.-pxovincial concern, and -
it may be that they would include general regulations of^
trade affecting the whole Dominion. Their Lordships ab-
stain 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 legislate for
the regulation of trade and commerce does not comprehend ,
the power to regulate by legislation the contract of a parti- '
cular business or trade, such as the business of fire in-
surance, in a single province, and, therefore, that its
legislative authority does not in the present case conflict or
compete with the power over property and civil rights as-
signed to the legislature of Ontario by No. 13 of section
92."

Bank Taxation : — In a later case ® it was urged
that the power of the Dominion parliament to re-
gulate trade and commerce should operate to pre-
vent a provincial legislature from levying taxes

ering the judgment of the Privy Council, intimated that 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 commerce.' " But this view has since been negatived.
The power, to regulate does not include, but ex vi termini ex-
cludes, power to prohibit: Virgo's Case (1896), A. C. 88; 65 L. J.
P. C. 4; and Dominion prohibitory legislation can be justified
only upon the "peace, order, and good government" clause of s.
91, Local Prohibition Case (1896), A. C. 348; 65 L. J. P. C. 2Q;
while provincial power of prohibition is based squarely upon
the residuary class, No. 16, of s. 92 ; Manitoba Liquor Act Case
(1902), A. C. 73; 71 L. J. P. C. 28. Provincial power to license
for fiscal purposes is founded on No. 9 of s. 92; regulation falls
under No. 16; Hodge's Case, 9 App. Cas. 177; 53 L. J. P. C. 1,
as explained in the Local Prohibition Case.

^ Lambe's Case, 12 App. Cas. 575 ; 56 L. J. P. C. 87.

686 CANADIAN constitution: self-goveknment.

I upon a bank. The Privy Council thus negatived
'this contention:

" The words ^ regulation of trade and commerce ^ are in-
deed very wide, and in Severn's Case,^ 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 question has been more completely sifted before
the committee in Parsons' Oase, and it was found abso-
lutely necessary that the literal meaning of the words should
be restricted in order to afford scope for powers which ^'
are given exclusively to the provincial legislatures. It was i
there thrown out that the power of regulation given to the
parliament meant some general or interprovincial regula- Y
tions. No further attempt to define the subject need now be
made, because their Lordships are clear that if they were
to hold that this power of regulation prohibited any provin-
cial taxation on the persons or things regulated, so far
from restricting the expressions, as was found necessary in
Parsons' Case, they would be straining them to their widest
possible extent.^'

Insurance Law : — In the Local Prohibition Case '^
the following passage occurs:

"The scope and effect of No. 2 of section 91 were dis-j.
cussed by this Board at some length in Parsons' Case, where!
it was decided that in the absence of legislation upon the
subject by the Canadian parliament, the legislature of On- ^
tario had authority to impose conditions, as being matters
of civil right, upon the business of fire insurance, which was
admitted to be a trade, so long as those conditions only
affected provincial trade. Their Lordships do not find it
necessary to re-open that discussion in the present case.''

The italicized words indicate that a general fed-
eral Act regulating trade and commerce might legi-
timately embrace such provisions as to the insur-
ance trade throughout the Dominion as are con-
tained in the Ontario Act.^

* 2 s. c. R. 70.

" (1896), A. C. 348; 65 L. J. P. C. 26.

• See Re Insurance Act, 1910, 48 S. C. R. 260, referred to post,
p. 689.

)

THE REGULATION OF TRADE AND COMMERCE. 687

Railway Traffic : — In the Through Traffic Case' \
federal autliority to regulate trade and commerce
was again evoked to support the provision in the
Railway Act under which the Board of Railway
Commissioners had directed a provincial railway to
enter into certain prescribed agreements with a fed-
eral railway as to the rates to be charged by the pro-
vincial railway in respect of the carriage over its
line of '' through traffic.'' But the Board held that,
the large general power should not be so construed
as to trp^pr^h upon the specific and exclusive auth-
ority otthe provinces over such local works and un-
dertakings as provincial railways. Their Lordships
repeat and emphasize that the authority of the par-
liament of Canada under the opening clause of sec
tion 91, that is to say, over the unenumerated resi-
duum of federal matters,^ is to be confined strictly
to such matters as are unquestionably of Canadian
interest and importance, and they add:

" The same considerations appear to their Lordships to ;
apply to two of the matters enumerated in section 91 —
namely, the regulation of trade and commerce. Taken in
their widest sense, these words would authorize legislation
by the parliament of Canada in respect of several of the
matters specifically enumerated in section 92, and would!
seriously encroach upon the local autonomy of the pro-
vinces. . . . The invasion of the rights of the province'
which the Railway Act and the order of the Commissioners
necessarily involve in respect of one of the matters enumer-
ated in section 92 — namely, legislation touching local rail-
ways— cannot be justified on the ground that this Act and
order concern the peace, order, and good government of
Canada, nor upon the ground that they deal with the regu-T^^
lation of trade and commerce/^

Federal Companies : — In the latest case in which
the Privy Council has had occasion to consider the

^Montreal v. Montreal Street. Ry. (1912), A. C. 333; 81 L. J.
P. C. 145. Extract ante, p. 440.
* See ante, p. 452.

6SS CANADIAN CONSTITUTION : SELF-GOVERNMENT.

scope of federal authority along this line the ques-
tion was as to the position of companies incorpor-
ated under federal law for trading purposes.^ It
was held that the right of the parliament of Canada
to confer upon such companies the charter-power
or capacity to carry on their operations throughout
Canada might well be rested upon the general auth-
ority to regulate trade and commerce in its large
Canadian or interprovincial aspect ; and that no '
province could lay down conditions precedent to
the exercise in such province of the companies'
functional powers.

Present Position: — A careful study of these de-
cisions serves, it is conceived, to emphasize what
was said on a previous page ^° that the enumerated
classes of section 91, particularly when described
in large general terms, are to be looked at as em-
bracing only matters of Canadian concern and as
not intended to preclude provincial legislation upon
local provincial aspects of the same subject so long
as such legislation is not repugnant to the general
federal law competently enacted. They also em-
phasize as applicable to section 91 as well as to
section 92 the rule laid down in Parsons^ Case that
those sections may reciprocally modify each other ;^
that the doctrine of implied powers can have but a
limited application where federal and provincial
powers are both set forth in class-enumerations, be-
cause the implication prima facie proper is forbid-
den by the existence of a specific enumeration of
the would-be implied power in a competing class.-

In view of the assignment by the Privy Council
of federal authority under No. 2 of section 91 to a

^John Deere Plow Co. v. Wharton (1915), A. C. 363; 84 L. J.
P. C. 64. Extract ante, p. 444.
^^ Ante, p. 448 et seq.
^Ante, p. 480.
'■^ Ante, p. 493 et seq.

THE REGULATION OF TRADE AND COMMERCE. 689

position analogous to that occupied under the open-
ing, peace-order-and-good-government clause of
section 91, the language of the Board in the Local
Prohibition Case^ would apply. If it were once
conceded that the parliament of Canada has auth-
ority to make laws applicable to the whole Dom-
inion in relation to matters which in each province
are substantially of local or private interest upon
the false ^ assumption that those matters also con-
cern the regulation of trade and commerce in a
large Canadian sense, there is hardly a subject
enumerated in section 92 upon which it might not
'legislate to the exclusion of the provincial legisla-
tures. Is the subject one as to which there is a real
community of interest as between two or more or
all of the Canadian provinces or is it a mere matter
of similarity of conditions? If the former, federal
legislation is competent and paramount; if the lat-
ter, the right to local autonomy entitles each pro-
vince to deal with its local conditions as it sees fit
and differently, it may be, from every other pro-
vince.^

The difference of opinion which may honestly
exist upon the question in its relation to this parti7
cular topic is strongly indicated in the opinions of
the judges of the Supreme Court of Canada upon a
reference as to the validity of certain sections of
the federal Insurance Act, 1910 ; ^ but as the matter
is now before the Privy Council it is not thought ad-
visable to .do more than point out that the differ-
ences of opinion were substantially upon the very
question above propounded.

^^ (1896), A. C. 348; 65 L. J. P. C. 26. Extract ante, p. 432.
* See ante, p. 470.
' See ante, p. 474.
» 48 S. C. R. 260.

CAN. COX. 44

690 CANADIAN constitution: self-government.

Canadian Cases : — It is noteworthy that, at least
since Parsons' Case, all the cases in which this class
has been considered are cases in which provincial
Acts have been attacked as infringing upon it ; and
that in none of them except the John Deere Plow,
Co. Case ^ has the attack been successful. In thei
absence of any general ^ Dominion law regulating
trade and commerce, the regulation of particular
trades and commercial transactions is within pro4
vincial jurisdiction. The local regulation and evenj
prohibition of the liquor traffic, it is now settled;
does not fall within this class No. 2 of section 91,^i
and that decision authoritatively affirms a long line,
of cases in which the local regulation of particular
trades, the exclusion of certain persons from them,
and even their total prohibition by provincial legis-
lation has been upheld. For example : The provision
in the Municipal Act of Ontario empowering muni-
cipal councils to pass by-laws ^* for preventing
criers and vendors of small wares from practising
their calling in the market, public streets and vacant
lots adjacent thereto ^' was held intra vires ^^ and
this decision represents the law as it has ever since
been recognized in that province.

An Act of the Quebec legislature authorizing
the imposition of a license fee on butchers exercis-
ing their calling in places other than the public

^ Ante pp. 687-8.

* " It is not general as including all particulars, but it is gen-
eral as distinguished from certain particulars : " per Lord Watson
on the argument of the Local Prohibition Case, as quoted in
Lefroy, p. 553 (n).

'Hodge's Case, Local Prohibition Case, Manitoba Liquor Act
Case; see ante, p. 685, note. One of the latest cases is R. v.
Bigelow, 41 N. S. 499. As to the milk traffic: see R. v. Oarvin,
13 B. C. 331.

^"Re Harris d Hamilton, 44 U. C. Q. B. 641. The view there
taken, however, as to the scope of No. 8 of s. 92 ("municipal
Institutions") cannot now be supported: see post, p. 791 et seq.

THE REGULATION OF TRADE AND COMMERCE. 691

markets of a municipality, was held valid ; ^ and a
provincial legislature may authorize municipal
bodies to pass by-laws in restraint of nuisances
hurtful to public health.-

The Quebec Pharmacy Acts, requiring certain
qualifications on the part of persons engaged in the
business of selling drugs and medicines, have been
twice passed upon and held valid.^

A license tax on merchants, wholesale or retail,
may be imposed by provincial legislation ; * and
there is no constitutional distinction between whole-
sale and retail trade.*^

A provincial Act may regulate the width of tires
to be used upon particular streets.®

Provincial health regulations are intra vires as
affecting the shipping trade and ships engaged in
it.^

Provincial game laws may go so far as to pro-
hibit exportation.^

Provincial law may prescribe the size and
weight of loaves of bread offered for sale.^

^Angers \. Montreal, 24 L. C. Jur. 259; Mallette v. Montreal,
il>., 263; Montreal v. Riendeau, 31 L. C. Jur. 129 (1887) ; Pigeon
V. Recorders' Court, 17 S. C, R. 495.

'Ex p. Pillow, 27 L. C. Jur. 216; Pillow v. Montreal, M. L. R.
1 Q. B. 401. The attack in this last case, it should perhaps be
remarked, was upon the ground that such legislation conflicts
with the power of the Dominion parliament over " criminal law "
rather than with the power to regulate trade and commerce.

^Bennett v. Pharm. Assn., 1 Dorion 336; 2 Cart. 250; Re Gir-
ard, Q. R. 14 S. C. 237 (1898). See also Pharm. Ass'n v. Liver-
nois, 31 S. C. R. 43 (1900).

* Weiler v. Richards, 26 Can. L. Jour. 338, per Begbie, C.J.,
(B.C.) : McManamy v. Sherbrooke, Mont. L. R. 6 Q. B. 409.

''Brewers' License Case (1897), A. C. 231; 66 L. J. P. C. 34;
Local Prohibition Case (1896), A. C. 348; 65 L. J. P. C. 26; Man.
Liquor Act Case (1902), A. C. 73 ; 71 L. J. P. C. 28.

*R. V. Howe, 2 B. C. 36.

" C. P. N. Co. V. Vancouver, 2 B. C. 193.

'R. V. Boscowitz, 4 B. C. 132; R. v. Robertson, 13 Man. L. R.
«13.

''Re Bread Sales Act (1911), 23 Ont. L. R. 238.

692 CANADIAN constitution: self-government.

A province may tax insurance agents,^*^ foreign^
insurance companies/ commercial travellers,- or
laundries.^

The provisions of the Ontario Mercantile
Amendment Act, as to the rights and liabilities of
consignees and indorsees of bills-of-lading, were
held * to be provisions as to property and civil
rights in the province, not regulations of commerce
within the meaning of class No. 2.

The principles enunciated in the above cases!
support the validity of provincial Acts such as the[
Employers' Liability Acts and Factory Acts.* No
doubt such Acts in a sense affect trade and com-
merce, but they have primary reference to the civil
rights of employers and employees ^ — to matters
of a merely local or private nature in the province
• — and cannot be deemed regulations of general
trade and commerce within the meaning of this
class as indicated in the deliverances of the Privy
Council. '

^''English v. O'Neill, 4 Terr. L. R. 74.

' Halifax v. Western Ass'ce Co., 18 N. S. 387 ; Halifax v. Jones,
28 N. S. 452.

^ Poole V. Victoria, 2 B. C. 271. See also Three Rivers v. Major,
8 O. L. R. 181.

^R. \. Mee Wah, 3 B. C. 403 ; Lee v. Montigny, 15 Que. S. C.
'607.

* Beard v. Steele, 34 U. C. Q. B. 43. The reasons for upholding
these provisions is more fully stated in R. v. Taylor, 36 U. C. Q.
B. 212. The view is expressed that the Dominion parliament
might pass a similar law " as a necessary and convenient mat-
ter to be dealt with in the regulation of trade and commerce."
Somewhat similar provisions in the Bank Act (Dom.) were up-
held in Tennant v. Union Bank (1894), A. C. 31; 63 L. J. P. C.
25. See also Smith v. Merchants Bank, 8 S. C. R. 512.

" Quong Wing v. R., 49 S. C. R. at p. 444-5, per Fitzpatrick, C.J.

"See Monkhouse v. G. T. R., 8 0. A. R. 637; Can. 8. Ry. v.
Jackson, 17 S. C. R. 316. To what extent Dominion railways, etc.,
are subject to provincial legislation of the above kind is dis-
cussed, post, p. 761.

THE REGULATION" OF TRADE AND COMMERCE. 693

The fact that provincial legislation may prejiif
dicially affect trade and commerce does not oper-
ate to prevent the full exercise of the powers con-
ferred upon provincial legislatures. For example,
the right of the provinces to prohibit the export of
timber cut upon Crown lands/ and their right to -
enact local prohibition despite its obvious effect
upon inter-provincial trade,® have been recognized
as beyond question.

In the latest case before the Supreme Court of
Canada touching provincial power to regulate the
local carrying on of particular trades, a Quebec
statute empowering municipalities to pass ^* early
closing '' by-laws was upheld under No. 16 of sec-
tion 92 as legislation relating to a matter which in
every province is substantially of local interest only
and is not of any direct or substantial interest to
the Dominion as a whole. It was held not to be a
regulation of trade and commerce within the mean-
ing of section 91, No. 2.^

Another recent instance of provincial legisla-
tion attacked on the ground that it constituted a re-
gulation of trade and commerce was the Ontario
Act establishing a hydro-electric Commission to
utilize water power in that province for the gener-
ating of electric power and authorizing municipali-|
ties to purchase from the Commission and to con-1
trol within their own limits a supply of electric \
power.^" The Act was upheld and the principle laid
down that provincial control and, as founded there-
on, municipal control of public commercial utilities \

^ Smylie v. R., 27 Ont. App. R. 172; see ante, p. 646.

* Manitoba Liquor Act Case (1902), A. C. 73; 71 L. J. P. C.
28 ; see ante, p. 647.

"" Montreal v. Beauvais (1909), 42 S. C. R. 211. The Privy
Council refused leave to appeal.

^^ SmitUj^London (1909). 20 Ont. L._R. 133 : Beardmore v.
Toronto (1910), 21 Ont. L. R. 505.

694 CANADIAN constitution: self-government.

is within provincial competence and does not in-
fringe upon federal authority; and this notwith-
standing the fact that the water power utilized was
that of the Niagara Eiver through which passes
the international boundary line. Whether or not
the time will ever come when the generation and
use of electric power will be substantially a quasi-
national problem in Canada is a question for the
future.

CHAPTER XXXIII.

Navigation and Shipping.

The following are the provisions of the British
North America Act which bear directly upon this
subject: —

VI. Distribution of Legislative Powers.

Powers of the Parliament.

91. . . . the exclusive legislative authority of the
parliament of Canada extends to all matters coming within
the classes of subjects next hereinafter enumerated; that is
to say: . . .

9. Beacons, buoys, lighthouses and Sable Island.

10. Navigation and shipping.

11. Quarantine and the establishment and maintenance

of marine hospitals. . . .
13. Ferries between a province and any British or
foreign country, or between two provinces. . . .

ExcliLsive Powers of Provincial Legislatures.

92. In each province, the legislature may exclusively
make laws in relation to matters coming within the class of
subjects next hereinafter enumerated ; that is to say : . . .

10. Local works and undertakings other than such as are

of the following classes: —

h. Lines of steamships between the province and
•any British or foreign country;,

696 CANADIAN constitution: self-government.

c. Such works as, although wholly situate within
the province, are before or after their execu-
tion declared by the parliament of Canada to
be for the general advantage of Canada, or for
the advantage of two or more of the j)ro-
vinces. . . .

VIII. Eevenues, Debts, Assets, Taxation.

108. The public works and property of each province
enumerated in the third schedule to this Act shall be the
property of Canada.

The Third Schedule.

Provincial Public WorJcs and Property to he the Property of

Canada.

1. Canals, with land and water power connected there-

with.

2. Public harbours.

3. Lighthouses and piers, and Sable Island.

4. Steamboats, dredges, and public vessels.

5. Rivers and lake improvements. . . .

In Part I. of this book dealing with imperial
limitations upon Canadian powers of self-govern-
ment a chapter was devoted to Merchant Ship-
ping;^ and it was there pointed out that many of
the provisions of the imperial Merchant Shipping
Act, 1894, extend to and are to-day in force in Can-
ada. Furthermore, the modified power of repeal
conferred by that Act upon the legislatures of
British possessions is confined to ships registered
in such possessions respectively; so that the law
,which governs very many of the ships which ply
to Canadian ports must be looked for in the im-
perial statute. At the same time, as often pointed

*Chap. XII., ante, p. 211.

NAVIGATION" AND SHIPPING. 697

out," a colonial legislature may legislate upon the
various topics touched by imperial legislation ex-
tending to the colony so long as the colonial law is
not repugnant to the imperial Act. That phase of
the- subject, however, was sufficiently dealt with in
the earlier chapter already referred to. Here the
question is as to the division of the field of possible
Canadian legislation on or affecting the subject of
navigation and shipping between the parliament of
Canada on the one hand and the provincial legisla-
tures on the other. The imperial statute has, how-
ever, this direct bearing on the question, that the
parliament of Canada is, so far as Canada is con-
cerned, ** the legislature of a British possession ''
empowered to exercise the qualified right of re-
peal conferred by it;^ so that as to all topics cov-
ered by the imperial Merchant Shipping Act, 1894,
the legislative authority of the parliament of Can-
ada has a double foundation, namely, that Act and
the British North America Act, 1867.*

Provincial Steamship Lines, etc. : — Eef erring to
the provisions of the British North America Act
set out at the beginning of this chapter, it should
perhaps be pointed out that the three excepted
items of section 92, No. 10, are federal classes by
virtue of section 91, No. 29 ; ^ but it is also obvious
that ^* lines of steam or other ships ^' and
'^ canals ^' (privately-owned) not operating or ex-
tending beyond a province are as ^ ' works and under-

* See with particular reference to this topic, ante, pp. 212, 231.
^ See ante, p. 213, note.

* See McMillan v. The S. W. Boom Co., 1 Pugs. & Burb. 715 ;
2 Cart. 542, referred to post, p. 707.

■* Sec. 91, " 29. Such classes of subjects as are expressly ex-
cepted in the enumeration of the classes of subjects by this
Act assigned exclusively to the legislatures of the provinces."
See Re Alberta Railway Act (1915), A. C. 363; 84 L. J. P. C. 58.

698 CANADIAN constitution: self-government.

takings '^ within the exclusive jurisdiction of the
provincial legislature, though subject doubtless to
federal law competently enacted on the subject of
navigation and shipping.

Proprietary Rights: — The transfer to Canada,
under section 108, of various items of Crown pro-
perty which prior to Confederation had been held
and used as public property of the respective pro-
vinces in connection with navigation and shipping
has already received sufficient notice.^ It was
thought proper to repeat the items at the begin-
ning of this chapter in order to again emphasize
that the grant to the federal parliament of legisla-
tive power over the subject-matter of navigation
and shipping in no way implies federal ownership
of the rivers, lakes, and sea-coast waters upon
which ships may ply, or in regard to which there
may exist rights of navigation either on the part
of the public or on the part of private owners.
While there can be little doubt that the parliament
of Canada may, as against private persons and with
or without making compensation, take and establish
as public highways of navigation such waterways
as it sees fit, there is apparently as little doubt that
it cannot create a public right of navigation over
provincial Crown lands covered by water where no
public right of navigation now exists. As a matter
of fact there is no federal Act which purports to
create a right of navigation, either public or private,
even over privately owned land covered by water;
and certainly none as to provincial Crown lands so
covered. Federal legislation, in other words, deals
with the exercise of the public right of way by
water known as the right of navigation,^ aiding and
safeguarding it as may be thought proper. And

'Chapter XXIX., ante, p. 598.

^ Orr Ewing v. ColqiiTioun, 2 App. Cas. 839.

NAVIGATION AND SHIPPING. 699

wherever ships ply, whether lawfully or as tres-
passers, those in control must conform to the laws
of navigation as laid down in federal enactment.
The question, however, as to the existence or non-
existence of a public right to navigate all Canadian
waterways which are in fact capable of being used
for purposes of travel or transportation is not
touched by any federal legislation, although it is
open to argument that all such legislation is based
upon the assumption that a public right exists to
navigate all waters which in fact are capable of
user as above indicated. The Crown's ownership
of the bed or soil underlying tidal waters is subject
to a paramount right in the public to navigate such
waters and to fish therein otherwise than by con-
trivances fixed in the soil ; ^ and the Crown without
parliament cannot derogate from such public rights.
Legislative power in Canada in respect to them
rests exclusively with the federal parliament.

Non-tidal Waters: — But in regard to non-tidal
waters the rule of the common law is that there can
be no public right of fishing therein ; ® and in the
British Columbia Fisheries Case ^^ it was held by
the Privy Council that the English common law
rule was in force in British Columbia, the rule be-
ing thus stated:

"The fishing in navigable non-tidal waters is the sub-
ject of property, and, according to English law, must have
an owner, and cannot be vested in the public generally.^'

If in force in British Columbia it is equally in
force in all the other provinces except, possibly,
Quebec.

*Re B. C. Fisheries (1914), A. C. 153; 83 L. J. P. C. 169.

* Johnston v. O'Neill (1911), A. C. 552; 81 L. J. P. C. 17.

" UM supra. As to Quebec, see Wyatt v. Atty.-Gen. of Quebec
(1911), A. C. 489; 81 L. J. P. C. 63; Maclaren v. Atty.-Oen. of
Quebec (1914), A. C. 258; 83 L. J. P. C. 201.

700 CANADIAN constitution: self-government.

As to navigation, the rule of the common law
was also clear, it would seem, that in the case of
non-tidal waters there was no paramount right in
the public to use them for purposes of navigation
or as highways for travel and transportation. As
against the Crown's grantee and his successors in
title — that is to say, as against a private owner — a
right of way by water might be acquired by the
public just as a right of way might be acquired by
land ; ^ but there is, it is conceived, no case in Eng-
land in which it has been held that such a right had
been acquired in respect of waters, navigable in
fact, flowing over Crown lands. There is, however,
a strong current of authority in Canadian cases
that the rule of the common law of England deny-
ing the existence of a public right of navigation in
non-tidal waters is not the law of Canada even in
those provinces which have adopted the common
law of England as the basis of their jurisprudence.^
It has been considered that either jure naturae or
by a species of dedication by the Crown evidenced
by throwing open the colonies for settlement a pub-
lic right, paramount to the title of any private
grantee of the Crown if not to the Crown's title it-
self, has always existed to make such use as was
possible of the natural waterways, non-tidal as well
as tidal, as a means of travel and transportation;
in other words, that such waterways are public
highways. The same view has obtained to some
extent as to the existence of a right in the public
to fish in such non-tidal waterways. How far the
denial of this latter right by the Privy Council in
the British Columbia Fisheries Case ^ may affect

* Orr Ewing v. Colquhoun, 2 App. Cas. 839 ; Keewatin Power
Co. V. Kenora, 13 Ont L. R. 237; 16 Ont. L. R. 184.

^ The authorities are aU collected in the elaborate judgment
of Mr. Justice Anglin in the Kenora Case (13 Ont. L. R. 237),
cited in the last note,

* (1914), A. C. 153; 83 L. J. P. C. 169.

NAVIGATION AND SHIPPING. 701

the question as to the existence of a public right of
navigation upon non-tidal waters it v^ould be rash
to predict. In the Supreme Court of Canada upon
the same reference Mr. Justice Duff made use of
this language:

" It does not appear to me to be necessary for the pur-
pose of dealing with this argument ^' — namely, that under
the statutory transfer to the Dominion of the ^ Railway
Belt ' in British Columbia only such rights were intended to
pass as in the ordinary course would be granted to settlers
— " to express any opinion upon the very important question
of how far and upon what principle public rights of naviga-
tion are recognized by the law of British Columbia as exist-
ing in non-tidal waters capable of being navigated. Cer-
tain rivers and lakes in that province, which from the first
settlem'ent of it have been used as public highways are, one
cannot doubt, subject to a public easement of passage. Such
rights can, in the case of such waters, be maintained upon
grounds which involve no straining of the principle of Eng-
lish law/'*

In delivering the judgment of the Privy Coun-
cil, the Lord Chancellor (Viscount Haldane), speak-
ing of the right of the public to fish in tidal waters,
says:

The legal character of this right is not easy to define.
It is probably a right enjoyed so far as the high seas are
concerned by common practice from time immemorial, and
it was probably in very early times extended by the sub-
ject without challenge to the foreshore and tidal waters,
which were continuous with the ocean, if indeed it did not
in fact first take rise in them. The right into which this

*Re B. C. Fisheries (1913), 47 S. C. R. at pp. 505-6. The
Chief Justice (Sir Chas. Fitzpatrick), Davies and Brodeur, J J.,
concur simpliciter in the judgment of Duff, J. The judgment of
Idington, J., does not touch this point ; while Anglin, J., adhered
to the views he had expressed in the Kenora Case, ante, p. 700, in
affirmance of the public right. And see also the recent judgment
of Mr. Justice Audette (Leamy v. R. (1915), 15 Exch. Ct. R. 189),
in which such a right is held to exist under the law of Quebec.

702 CANADIAN constitution: self-government.

practice has crystallised resembles in some respects the right
of navigating the seas or the right of using a navigable
river as a highway, and its origin is not more obscure than
that of these rights of navigation. Finding its subjects
exercising this right as from immemorial antiquity, the
Crown^ as parens patriae, no doubt, regarded itself bound
to protect the subject in exercising it, and the origin and
fextent of the right as legally cognizable are probably
attributable to that protection, a protection which gradually
came to be recognized as establishing a legal right enforce-
able in the Courts. . . . Neither in 1867, nor at the
date when British Columbia became a member of the Feder-
ation, was fishing in tidal waters a matter of property. It
was a right open equally to all the public; and, therefore,
when by section 91, ' sea coast and inland fisheries ' were
placed under the exclusive legislative authority of the Do-
minion parliament, there was in the case of the fishing in
tidal waters nothing left within the domain of the pro-
vincial legislature. The right being a public one, all that
could be done was to regulate its exercise, and the exclusive
power of regulation was placed in the Dominion parliament.
Taking this in connection with the similar provision with
regard to * navigation and shipping,' their Lordships have
no doubt that the object and the effect of these legislative
provisions were to place the management and protection of
the cognate public rights of navigation and fishing in the
sea and tidal waters exclusively in the Dominion parliament
and to leave to the province no right of property or control
in them. It was most natural that this should be done,
seeing that these rights are the rights of the public in
general and in no way special to the inhabitants of the
province."

Later on, speaking of the waters within the
' Railway Belt/ '" he says :

" So far as the waters are tidal, the right of fishing in
them is a public right, subject only to regulation by the
Dominion parliament. So far as the waters are not tidal,
they are matters of private property, and all these pro-
prietary rights passed with the grant of the railway belt and

" See ante, p. 622 et seq.

NAVIGATION AND SHIPPING. 703

became thereby vested in the Crown in right of the Do-
minion. The question whether the non- tidal waters are
navigable or not has no bearing on the question. The fish-
ing in navigable non-tidal waters is the subject of property \^
and, according to English law, must have an owner, and
cannot be vested in the public generally.'^

The guarded language of the above extracts in
reference to the public right of navigation is notice-
able. There is really no expression of opinion as
to existence or non-existence of such a public right
in the case of non-tidal waterways which are
navigable in fact; but in a very recent case
in British Columbia it was considered that the
views expressed even upon a reference ^ by a
majority of the Supreme Court of Canada as
above indicated should be followed, at least
by a court of first instance."^ Accordingly the Fraser
River in its upper waters was held to be a common
and public highway, judicial notice being taken of
the fact that, apart from recent and unchallenged A
commercial user by steamboats and for the floating
of logs, it had been from the earliest days of the
colony a well-known highway for the traders of the
Hudson's Bay Company and for early explorers.

T/ie ad medium filum Rule: — The rule of the
common law that ownership of land bordering upon
a highway carried with it, prima facie, the owner-
ship of the soil of the highway ad medium filum
viae applied to highways by water as well as to
highways by land. Consequently a grant of land
bordering upon a non-tidal stream or body of
water carried with it the grantor's title to the mid-
dle thread of the stream unless there were clear
words of exclusion. In the Kenora Case ® it was

* See ante, p. 596.

^ Fort George Lumter Co. v. Grand Trunk Pac. Ry., not yet
reported.

^ 13 Ont. L. R. 237, referred to ante, p. 291 et seq.

704 CANADIAN CONSTIIUTION : SELF-GOVERNMENT.

held by Mr. Justice Anglin that this rule did not
apply to the navigable non-tidal streams and lakes
of Canada, and that in the case of Crown grants of
land bordering on any such waters the presumption
was that the bed of the stream ad medium fihim was
not intended to pass to the Crown's grantee; in
other words, that express words of inclusion were
necessary if the bed were to pass. In the Court of
Appeal for Ontario, this judgment was reversed.^
The English common law rule was held to be part
of the law of the province ^^ even in the case of
waters lying along the international boundary line
between Canada and the United States; but it was
pointed out that the rule was one of prima facie
presumption only and that such presumption might
be rebutted in the case, for example, of a grant of
land upon the shores of one of the Great Lakes by
the absurdity of the supposition that the grantee
was intended to acquire thousands of acres of sub-
merged land fronting upon his lot or farm of a
few acres.

In a more recent case before the same court,^
reference was made to a decision of the Court of
Common Pleas in Ontario in 1872 that the bed of
the St. Lawrence above tide-water is vested in the
Crown and not in the riparian proprietors ad
medium filum.- This decision had been based upon
the view that the Crown of Great Britain had ac-
quired upon the cession of Canada the same rights
in regard to streams navigable in fact as had pre-
viously been held by the Crown of France ; that the
locus was included in the cession; and that there-
fore the bed would not pass to a subject under a
Crown grant. As to this, Meredith, C.J.O., says:

ne Ont. L. R. 184.

^^ See ante, p. 291 et seq.

^Haggarfy v. Latreille (1913), 14 D. L. R. 532.

^ Dixon V. Snetsinger, 23 U. C. C. P. 235.

NAVIGATION AND SHIPPING. 705

" How far, if at all, the reason upon which this de-
cision was based is in conflict with what was decided in the
Kenora Case it is unnecessary to enquire, as the same con-
clusion would have been reached on the ground that the
prima facie presumption I have mentioned was rebutted in
the case of the St. Lawrence as undoubtedly it would be in
the case of the Great Lakes."

The question has been recently passed upon by
the Privy Council and the rule of the English com-
mon law has been held to apply in its fullest extent
in Canada.^ In delivering the judgment of the
Board, Lord Moulton said:

" It is settled law that no description in words or by
plan or by estimation of area is sufficient to rebut the pre-
sumption that land abutting on a highway or stream carries
with it the land ad medium filum merely because the verbal
or graphic description describes only the land that abuts on
the highway or stream without indicating in any way that
it includes land underneath that highway or stream. This
is precisely what we have here. The land is shewn as
abutting on the river and is described as bounded by the
river, and again as bounded by a line following the wind-
ings and sinuosities of the river bank. This clearly makes
it abut on the river and gives rise, according to English
law, to the presumption in question. . . . It is precisely
in the cases where the description of the parcel (whether
in words or by plan) makes it terminate at the highway or
stream and does not indicate that it goes further that the
rule is needed."

This strong statement as to the scope of the ad
medium filum rule and its applicability to grants,
from the Crown even in the province of Quebec — it
would apply a fortiori in the other provinces — doe&
not, however, really touch the question as to the

*Maclaren v. Atty.-Oen. of Quel)ec (1914), A. C. 258; 83 L. J.
P. C. 201. The question was as to Crown grants of land abutting
on the Gatineau R. in Quebec.

CAN. CON. — 45

706 CANADIAN constitution: self-government.

existence in Canada of a public right of way over
waterways which are capable of user and have in
fact been used without question from the earliest
colonial days as public highways for travel and
transportation.* The right of the public to fish in
such waters would appear to be a right different in
kind from that of passage, the, former tending, as
it were, to waste the patrimony of the Crown or
other private owner; but it is obviously arguable
that to affirm a free right in the public generally to
use a stream as a public highway is to burden the
land with a servitude beyond the ordinary servi-
tudes to which riparian property is subject by Eng-
lish law.

Federal and Provincial Jurisdiction: — It was
held in an early case in the Supreme Court of Can-
ada that provincial legislation cannot authorize
such an obstruction of a navigable stream as would
constitute a nuisance.^ The case had reference to
tlie Queddy River in New Brunswick and there was
then no Dominion legislation upon the subject to
alter the law as it existed in New Brunswick at the
date of the Union. The true effect of the decision
would seem to be contained in an observation of
Mr. Justice Strong:

" The Queddy river is shewn to be a navigable tidal river,
and the appellants have obstructed the navigation and thus
committed an act which is prima facie a public nuisance, and
which the respondent shews to be especially injurious to him

*" The public right of navigation is not thereby affected:" per
Moss, C.J.O., in the Kenora Case, 16 Ont. L. R. 184. " The fact
that the stream or other body of water is navigable or, in other
words, a highway, obviously cannot take it out of the rule, for
that would take every highway on land or water out of it, which
no one can contend for." — per Meredith, J.A., i&., p. 201.

» Queddy River Boom Co. v. Davidson (1883), 10 S. C. R. 222 ;
See also Re Brandon Bridge (1884), 2 Man. L. R. 14; R. v. Fisher
(1891), 2 Exch. Ct. R. 365.

NAVIGATION AND SHIPPING. 707

as a riparian proprietor. The respondent was therefore en-
titled to an injunction to restrain the continuance of the ob-
struction, unless the appellants were able to shew some legal
justification for the intejference with the navigation of the
river caused by the construction and maintenance of these
booms; they however, shew nothing but an Act of the pro-
vincial legislature/'

The provincial Act so far as it incorporated the
appellants as a Boom Company was held intra
vires.

And it has been held that a provincial enact-
ment authorizing the erection of booms in a navi-
gable river does not necessarily conflict with the
power of the Dominion parliament over navigation
and shipping; that those words are used in the
same sense as in the several Imperial Acts relating
to navigation and shipping, namely, as giving the
right to prescribe rules and regulations for vessels
navigating the waters of the Dominion and not as
excluding, for all purposes, provincial jurisdiction
over navigable waters.^ A provincial legislature,
for example, may extend the boundaries of a muni-
cipality so as to include therein part of a navigable
river.^ As put by Fournier, J. :

" If it is beyond controversy that navigable rivers are for
purposes of navigation under the control of the parliament
of Canada, it is not less clearly established that the provinces
have, upon these same rivers, the right to exercise all muni-
cipal and police powers, so long as their legislation creates
no hindrance to navigation.^

There is no doubt that the authority of the Dom-
inion parliament extends, as already intimated,^ to

'MacMillan v. S. W. Boom Co., 1 Pugs. & Burb. 715; 2 Cart.
542.

' Central Vermont Ry. Co. v. St. John, 14 S. C. R. 288.
^ See also Re Sturmer & Beaverton, ante, p. 617.
*See ante, p. 697.

708 CANADIAN constitution: self-government.

all matters covered by the imperial Acts relating
to navigation and shipping ; manifestly a large part
of the field of property and civil rights. The con-
servancy of navigation is also a matter within its
control. The provisions of the Dominion ' Navi-
gable Waters Protection Act ' ^^ under which, for
example, no structures can be erected in navigable
waters unless sanctioned and approved of by the
Dominion government and under which also mill-
owners and others are prohibited from allowing
slabs, saw dust, or other matter which might ob-
struct navigation or pollute the waters to be de-
posited in navigable streams have been held by the
Privy Council to be clearly provisions relating to
navigation and as such within federal competence.^

The right of the public to navigate tidal waters
is, as above intimated, paramount to the Crown's
title in the soil underlying such waters and the
Crown therefore cannot, without statutory auth-
ority, grant the right to place in any such waters,
as, for example in a public harbor, any obstruc-
tion or impediment which would prevent the full
exercise of the right of navigation." And if there
is a public right to navigate non-tidal waterways
in Canada the position must be the same as to them.
The Navigable Waters Protection Act has always
been taken to apply to all waters, non-tidal or in-
land as well as tidal, which are navigable in fact;
but there is in the Act no definition of the term
' navigable waters,' and if, as a matter of law, that
term covers only waters in which there exists a pub-
lic right of navigation, the question above discussed

"R. S. C. (1906), cap. 115.

^Fisheries Case (1898), A. C. 700; 67 L. J. P. C. 90. The.
grounds of attack are set out in 26 S. C. R. 444, at p. 484 et seq.
See also Burrard Power Co. v. R., 43 S. C. R. 27, particularly per
Anglin, J,, at p. 55.

' Wood V. Esson, 9 S. C. R. 239, as explained in Cunard v. R.,
43 S. C. R. 88.

NAVIGATION AND SHIPPING. 709

as to our inland non-tidal lakes, rivers, and other
waters is one of much importance.

As between the two public rights of navigation
and of fishing, the former is the paramount right.'
And as between the various persons who may util-
ize navigable waters for purposes of travel or trans-
portation the question, in the absence of statutory
regulations, is one of reasonable user having regard
to the fact that all have an equal right.* The pub-
lic right of navigation includes the right to use the
stream for the transportation of goods by mere
flotation of the goods themselves as in the case of
logs and lumber ; at least, it has been so considered
in American and Canadian cases. The use of the
word ^ navigation ' is, of course, not strictly accur-
ate, and the question is really as to the existence
of a public highway. As put in an Ontario case:

" Every person has an undoubted right to use a public
highway, whether upon the land or water, for all legiti-
mate purposes of travel and transportation, and if, in so
doing, while in the exercise of ordinary care, he necessarily
and unavoidably impede or obstruct another temporarily, he
does not thereby become a wrongdoer, his acts are not illegal,
and he creates no nuisance for which an action can be main-
tained.'' «

Miscellaneous Cases: — Where by a pre-Confed-
eration Act authority was given to the Crown to
permit interference with navigation, such authority
is exerciseable since 1867 by the Governor-General
in Council, not by the provincial government.® And
where the Crown had allowed a bridge to be built
before Confederation which obstructed navigation,

* Coulson & Forbes, Law of Waters, 2nd ed., 359.

* Kennedy v. "The Surrey," 10 Exch. Ct. R. 29; Graham v.
" The E. May field," 14 Exch. Ct. R. 331.

* Crandell v. Mooney, 23 U. C. C. P. 212, at p. 221.

*R. V. Fisher (1891), 2 Exch. Ct. R. 365. See also London de
Canadian Co. v. Warin, 14 S. C. R. 232.

710 CANADIAN" constitution: self-government.

the Dominion government was held bound/ The
Attorney-General of Canada may take proceedings
to restrain by injunction the pollution of navigable
waters and, semhle, a provincial Attorney- General
may also take action to restrain such a nuisance.®

A provincial Act may incorporate a navigation
or transportation company the operations of which
are limited to the province ; ^ or a boom company to
operate on a navigable stream within a province.^^

A grant by the province of Quebec of a water
lot extending into deep water at the mouth of the
River St. Maurice was held valid, subject to the
implied restriction that the grantee should not use
his power in such a way as to interfere with navi-
gation.^ Provincial ownership of the beds of all
waters within the province, other than the public
harbors and canals allotted to Canada by section
108, is unquestionable.^ But statutory authority is
necessary for their alienation by the Crown.^

Ferries plying entirely within one province fall
within No. 10 of section 92 as local works and un-
dertakings, although no doubt they would have to
conform to any regulations imposed by Dominion
legislation respecting navigation and shipping.*

'R. V. Moss, 26 S. C. R. 322.

' Atty.-Gen. Can. v. Ewen, 3 B. C. 468. This last proposition
is, it is conceived, doubtful law. See ante, p. 592 et seq.

^McBougall v. Union Nav. Co., 21 L. C. Jur. 63; 2 Cart. 228;
Re Lake Winnipeg Transportation Co., 7 Man. L. R. 255.

" Queddy R. Boom Co. v. Davidson, 10 S. C. R. 222, referred to
ante, p. 706.

^Normand v. St. Lawrence Nav. Co., 5 Que. L. R. 215; 2 Cart.
231.

^Fisheries Case (1898), A. C. 700; 67 L. J. P. C. 90; R. v.
Moss, 26 S. C. R. 322; Lake Simcoe Ice Co. v. McDonald, 29 Ont.
R. 247; 26 O. A. R. 411; 31 S. C. R. 130. See ante, p. 628.

' Cunard v. R., 43 S. C. R. 88.

* Dinner v. Humherstone, 26 S. C. R. 252.

NAVIGATION AND SHIPPING. 711

Provincial powers of taxation may be exercised
upon the shipping trade,^ and navigation companies
must observe the provisions of provincial health
laws within the province.^

The Dominion parliament may create Maritime
Courts having jurisdiction over matters falling
within this class/ or may confer such jurisdiction
upon other Courts, e.g., upon Vice- Admiralty Courts
existing in Canada under Imperial Acts.^ In this
last case, of course, nothing repugnant to such Im-
perial Acts would be valid.®

Ferries. — It was the opinion of Mr. Justice
Street that the prerogative right of the Crown to
create a ferry and to grant a franchise therefor was
a *^ royalty ^' within the meaning of section 109
and as such belonged to the provinces since Con-
federation even in the case of such an international
ferry as that at Sault Ste. Marie ; ^° but this view
has been overruled by the Supreme Court of Can-
ada.^ The granting of licenses to operate ferries is
now governed in all the provinces by statutory pro-
visions which can, of course, apply only to ferries
operating entirely within the province. As local
works and undertakings they are subjects of pro-
vincial jurisdiction, although governed by federal
law touching navigation and shipping.^ All other
ferries are within Dominion jurisdiction.^

** Longueuil Nav. Co. v. Montreal, 15 S. C. R. 566, following the
general principle laid down in Lamte's Case, 12 App. Cas. 575; 56
L. J. P. C. 87. See ante, p. 653.

« C. P. Nav. Co. V. Vancotiver, 2 B. C. 193.

' The Picton, 4 S. C. R. 648. See ante, p. 238 et seq., as to
Admiralty jurisdiction in Canada.

'The Farewell, 7 Q. L. R. 380; 2 Cart. 378.

'See ante, p. 59.
»° Perry v. Clergue, 5 Ont. L. R. 357.

^ Re International Ferries, 36 S. C. R. 206. See ante, p. 631.

* See Gibson v. Garvin, 2 W. W. R. 662.

•See R. S. C. (1906), cap. 118; the Ferries Act.

CHAPTER XXXIV.

^' Sea Coast and Inland Fishebies/' — ^Section 91.

No. 12.

In an earlier chapter the nature and extent of
the control which, through the Dominion parlia-
ment and government, Canada is entitled to exer-
cise over her coast waters both as to the fisheries
and otherwise was discussed ; ^ and in the last
chapter the question as to the existence of a public
right to fish in the non-tidal waters of Canada was
sufficiently dealt with. It was held in the British
Columbia Fisheries Case ^ that the provinces have
no rights of property in the fisheries in tidal
waters; that the public generally and not merely
the people of that province have a paramount right
to fish in tidal waters; and that federal legislation
alone can control and regulate the exercise of that
right. It was also held that of the non-tidal waters
embraced within the ^' Railway Belt '^ of British
Columbia the Dominion has a full proprietary own-
ership, and that in such waters there is no public
right of fishing. This holding with regard to the
nature and extent of Dominion ownership of the
tract in question establishes provincial ownership
of all Crown lands belonging to a province as of
the same nature and extent so far as touches the
ownership of the fisheries in waters covering or
running through such Crown lands. The fisheries
in those waters are a provincial asset.

* See ante, p. 108, et seq. In addition to the cases there cited,
reference should be had to the recent judgment of Martin, Lo.J.
Adm., in R. v. The Valiant, 19 B. C. 521, in which is discussed
the right of foreign ships to enter and remain in Canadian
waters at places other than ports of entry, as well as the opera-
tion of the 1815 and 1818 Conventions with the United States.

' (1914), A. C. 153 ; 83 L. J. P. C. 169.

SEA COAST AND INLAND FISHERIES. 713

The different views that may be taken of the
scope of the various classes of sections 91 and 92
are nowhere better illustrated than in the litiga-
tion *'' which arose out of the grant of a lease of a
salmon fishery by the Minister of Marine and Fish-
eries under authority of a Dominion Act. The
locus included part of the Miramichi river in New
Brunswick above the ebb and flow of the tide, and
the lease in question 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 invalidity of the lease, and of the
clause of the Dominion Act under which it was
made, was finally declared by the Supreme Court
of Canada. It was held that the scope of class No.
12 of section 91 is properly limited to —

" subjects affecting the fisheries generally, tending to their
regulation, protection, and preservation, matters of a national
and general concern and important to the public, such as the
forbidding fish to be taken at improper seasons in an im-
proper manner, or with destructive instruments, laws with
reference to the improvement 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."

It was accordingly held that the Dominion par-
liament could not interfere with the rights of pro-
perty (with all its incidents) vested in the riparian
proprietors, whether a province or individual
owners, further than laws within the above limits
might curtail their exercise; and that, having no
power to interfere directly, the Dominion parlia-
ment could not authorize others to interfere with

• Terminating in R. v. Rodertson, 6 S. C. R. 52. The judgment
of the Supreme Court in the Fisheries Case (26 S. C. R. 444),
affords still further evidence of the possible differences of view
above referred to. See also Bayer v. Kaiser, 26 N. S. 280 (1894).

714 CANADIAN- constitution: self-government.

those rights. Such legislation, it was said, would
be confiscation, not regulation. The judgment of the
Privy Council in the Fisheries Case * substantially
affirms the views above expressed, with this excep-
tion, that laws as to the improvement and increase
of the fisheries belonging to a province are no doubt
within provincial competence, so long as they do not
conflict with federal regulations.

The whole ground is exhaustively covered by
Lord Herschell in delivering the judgment of the
Board in the Fisheries Case: —

" Their Lordships are of opinion that the 91st section of
the British North America Act did not convey to the Do-
minion of Canada any proprietary rights in relation to
fisheries. Their Lordships have already noticed the distinc-
tion which must be borne in mind between rights of property
and legislative jurisdiction. It was the latter only which
was conferred under the heading ^ Sea Coast ^ and Inland
Fisheries ' in section 91. Whatever proprietary rights in rela-
tion to fisheries were previously vested in private individuals
or in the provinces respectively remained untouched by that
enactment. Whatever grants might previously have been law-
fully made by the provinces in virtue of their proprietary
rights could lawfully be made after that enactment came into
force. At the same time it must be remembered that the power
to legislate in relation to fisheries does necessarily to a certain
extent enable the legislature so empowered to affect pro-
prietary rights. An enactment, for example, prescribing the
times of the year during which fishing is to be allowed or the
instruments which may be employed for the purpose (which
it was admitted the Dominion legislature was empowered to
pass) might very seriously touch the exercise of proprietary
rights, and the extent, character, and scope of such legisla-
tion is left entirely to the Dominion legislature." . . .

* (1898), A. C. 700; 67 L. J. P. C. 90.

• Note the curious error into which Lord Chancellor Selborne
fell in UVnion St. Jacques v. Belisle (L. R. 6 P. C. 31; 1 Cart.
63) in not treating "sea coast" as an adjective. He speaks
of the whole of the sea coast as put within the exclusive cogni-
zance of the Dominion legislature.

SEA COAST AND INLAND FISHERIES. 715

" If, however, the legislature purports to confer upon
others proprietary rights where it possesses none itself that,
in their Lordships' opinion, is not an exercise of the legisla-
tive jurisdiction conferred by section 91. If the contrary
were held it would follow that the Dominion might practic-
ally transfer to itself property which has by the B. IST. A.
Act been left to the provinces and not vested in it." . . .

" It follows from what has been said that in so far as sec-
tion 4 of R. S. C. c. 95 (1886) empowers the grant of fish-
eries leases conferring an exclusive right to fish in pro-
perty belonging not to the Domion but to the provinces, it
was not within the jurisdiction of the Dominion parliament
to pass it." . . .

"Regulations controlling the manner of fishing are un-
doubtedly witliin the competence of the Dominion parlia-
ment. The question is whether they can be the subject of
provincial legislation also in so far as it is not inconsistent
with the Dominion legislation ^ . . . Their Lordships
feel constrained to hold that the enactment of fishery regula-
tions and restrictions is within the exclusive competence of
the Dominion legislature, and is not within the legislative
powers of provincial legislatures.

"But while, in their Lordships' opinion, all restrictions
or limitations by which public rights of fishing are sought
to be limited or controlled can be the subject of Dominion
legislation only, it does not follow that the legislation of pro-
vincial legislatures is incompetent merely because it may
have relation to fisheries. For example,'^ provisions prescrib-
ing the mode in which a private fishery is to be conveyed or
otherwise disposed of and the rights of succession in respect of
it would be properly treated as falling under the heading
' Property and civil rights ' and not as in the class ' Fisheries '
within the meaning of section 91.^ So, too, the terms and
conditions upon which the fisheries which are the property
of the province may be granted, leased, or otherwise disposed

* The passage here omitted will be found ante, p. 436.

' The examples here given all illustrate the general rule that
the true nature and character of any Act must be determined In
order to constitutionally classify it. See ante, p. 484 et seq.

• See the judgment of Idington, J., in Re B. C. Fisheries, 4tl
S. C. R. at pp. 496-7.

716 CANADIAN constitution: self-government:.

of, and" the rights which, consistently with any general regu-
lations respecting fisheries enacted by the Dominion parlia-
ment, may be conferred therein appear proper s-ubjects for
provincial legislation either under class 5 of section 92, ' The
management and sale of public lands,' or under the class
* Property and civil rights/ Such legislation deals directly
with property, its disposal, and the rights to be enjoyed in
respect of it, and was not, in their Lordships' opinion, in-
tended to be within the scope of the class ' Fisheries ' as that
word is used in section 91."

In the British Columbia Fisheries Case ® it was
held that the provinces have no proprietary interest
in the fisheries in tidal waters, the right of the pub-
lic to fish therein being a paramount right antedat-
ing the Union. The Board did not desire to express
an opinion on the question whether the subjects of
the province might be taxed in respect of the exer-
cise by them of this public right, but, the Lord
Chancellor (Viscount Haldane) added, —

" No such taxing power could enable the province to
confer any exclusive or preferential right of fishing on indi-
viduals, or classes of individuals, because such exclusion or
•preference must import regulation and control of the general
right of the public to fish, and this is beyond the competence
of the provincial legislature."

Of the earlier decision he says :

'^It recognized that the province retains a right to dis-
pose of any fisheries to the property in which the province
has a legal title, so far as the mode of such disposal is con-
sistent with the Dominion right of regulation; but it held
that even in the case where proprietary rights remain with
the province, the subject matter may be of such a character
that the exclusive power of the Dominion to legislate in re-
gard to fisheries may restrict the free exercise of provincial
rights. Accordingly it sustained the right of the Dominion
to control the methods and season of fishing and to impose a

» (1914), A. C. 153; 83 L. J. P. C. 169.

SEA COAST AND INLAND FISHERIES. 717

tax in the nature of license duty as a condition of tHe right
of fishing, even in cases in which the property originally
was or still is in the provincial government/'^^

Miscellaneous Cases: — A provincial Act incor-
porating a company with power to catch and cure
fish is not an Act in relation to fisheries within the
meaning of this class, but falls properly within No.
11 of section 92, ^* The incorporation of companies
with provincial objects.''^

" See the chapter on " Taxation," ante, p. 643.
^ Re Lake Winnipeg Trans. Co., 7 Man. L. R, 255. As to fish-
ing in public harbors, see ante, p. 615.

CHAPTER XXXV.

Companies.

Common Law Corporations : — At common law
a corporation created by Royal Charter has power
to bind itself by its common seal to all such con-
tracts as an ordinary person can enter into, and
may deal with its property as freely as an ordinary
person may deal with his. Even if such contracts
or methods of dealing with property are expressly
prohibited by the charter they nevertheless bind
both the corporation and the other parties thereto.^
In other words, in the case of such corporations
there can arise no question of ultra vires; a breach
by such a corporation of any restrictive provision
or any departure from the purposes or objects of
incorporation is ground merely for scire* facias pro-
ceedings by the Crown to cancel the charter.^

Statutory Corporations: — On the other hand,
the position of statutory companies is radically dif-
ferent. It is not even a question of express or im-
plied prohibition, though acts in breach of such a
prohibition are undoubtedly iiltra vires and void;
it is a question of the extent of the company's
capacity for action as measured and limited by the
purpose of the incorporation and by the powers
actually conferred to be used in furtherance of
such purpose. And the powers actually conferred
do not extend beyond what is covered by the words
of the incorporating instrument and by what may

^Sutton's Hospital Case (1613), 10 Coke Rep. la, 30b; Wen-
lock (Baroness) v. River Dee Co., 36 Chy. D. 674, at p. 685.

'British South Africa Co. v. De Beers Consolidated Mines
(1910), 1 Chy. 354; 79 L. J. Chy. 345.

COMPANIES. 719

be reasonably implied therefrom. The incorporat-
ing instrument may, of course, be a special Act of
parliament or it may be, as in most cases nowa-
days, the memorandum and articles of association
upon which under general Companies' Acts a cer-
tificate of incorporation issues. As put by Lord
Watson : ^

" Whenever a corporation is created by Act of parliament
with reference to the purposes of the Act,* and solely with a
view to carrying those purposes into execution, I am of
opinion not only that the objects which the corporation may
legitimately pursue must be ascertained from the Act itself,
but that the powers which the corporation may lawfully use
in furtherance of these objects must either be expressly con-
ferred or derived by reasonable implication from its pro-
visions. That appears to me to be the principle recognized
by this House in Ashhury Railway Carriage & Iron Co. v.
Riche ^ and in Atty.-Gen. v. Great Eastern Ry. Co."^

to which should be added what was said by. Lord
Macnagliten in a recent well-known case : '^

" The learned counsel for the appellants did not, as I
understand their argument, venture to contend that the power
which they claimed could be derived by reasonable implication
from the language of the legislature. They said it was a power
' incidental,' * ancillarv^ ' or ' conducive ' to the purposes of
trade unions. If these rather loose expressions are meant to
cover something beyond what may be found in the language
which the legislature has used, all I can say is that, so far as T
know, there is no foundation in principle or authority for the

» Wenlock (Baroness) v. River Dee Co., 10 App. Cas. at p. 362 ;
64 L. J. Q. B. at p. 581'.

* A British Act of parliament could of course incorporate sim-
pliciter, that is, could confer unlimited capacity to do, so far as
possible, whatever a natural person can do.

»L. R. 7 H. L. 653; 44 L. J. Ex. 185.

•5 App. Cas. 473; 49 L. J. Ch. 545.

' Amalgamated Society of Railway Servants v. Osborne (1910),
A. C. 87; 79 L. J. P. C. 87, involving the right of a trade union
to use its funds to promote the election to parliament of labor
members.

720 CANADIAN constitution: self-government.

proposition involved in their use. Lord Selborne no doubt
did use the term ' incidental ' in a well known passage in
Atty.-Oen. v. Great Eastern By. Co. But Lord Watson cer-
tainly understood him to use it as equivalent to what might
be derived by reasonable implication from the language of the
Act to which the Company owed its constitution; and Lord
Selborne himself, to judge from his language in Murray v.
Scott,^ could have meant nothing more.'^

'^Incorporation" : — What has been said with
reference to statutory corporations as distinguished
from common law corporations, so called, created
by prerogative,® would indicate that it is of the es-
sence of modern incorporation that the purpose of
the incorporation, that is to say, its objects, should
be defined in the instrument of incorporation. This
vis spoken of as the capacity of the corporation; its
status is that of a person of limited capacity or
vitality; and the question arises, are the powers
which, as Lord Watson puts it,^^ a company may
use in furtherance of the object of its incorporation
something different from its capacity or capacities?
It has been said that incorporation —

" would include the constitution of the company, the
designation of its corporate capacities, the relation of the
members of the company to the company itself, the powers
of the governing body,'^^

and possibly more. The distinction, if any, between
capacities and rights is not, perhaps, a matter of
much importance where both may be conferred by
a legislature having plenary legislative authority
over all subjects ; but as will appear later ^ the dis-
tinction has been drawn by the Privy Council and

«9 App. Cas. 519; 53 L. J. Ch. 745.

® See ante, p. 718.

"See passage, ante, p. 719.

^ Re Companies, 48 S. C. R. at p. 411, per Duff, J.

^ See post p. 738 et seq.

COMPANIES. 721

treated as matter of substance in dealing with
Canadian incorporation. But it is thought that no
useful purpose can be served by further discussion
of the abstract question here.

British Incorporation : — Chartered companies do
not particularly concern us, but they have been men-
tioned in order to emphasize the fact that, apart
from any question as to the powers of the legisla-
ture by which, or by whose authority, a company
may be incorporated, its corporate capacity is mea-
sured and limited by its instrument of incorpora-
tion. Legislative power to incorporate should next
be considered. The British parliament may, of
course, incorporate or authorize the incorporation
of a company for any purpose or object, and with
no territorial limitation upon the exercise of the
company's powers; and in such case all British
Courts within the Empire must treat such a com-
pany as a legal person, while foreign Courts may
and usually do so treat it as a matter of interna-
tional comity. If, on the other hand, a territorial
area is prescribed within which the company's
activities are to have operation, that is a constitu-
tional limitation upon the company's powers just
as much as the clause, for example, which defines
the business the company is to carry on. It is, in
fact, part of that definition. In the case of a com-
pany incorporated to carry on a particular business,
in England, it may be that the recognition in a col-
onial Court of such a company would be, strictly
speaking, based upon comity rather than upon
strict legal right ; but the point is not very material
for the purposes of this chapter. The important
matter in the instance put is that the company
could not carry on its business anywhere but in
England; but it would seem to be a reasonable im-
plication that in the carrying on of its business in.

CAN. CON. 46

722 CANADIAN constitution: self-government.

England its rights, in the absence of any words
of limitation, would be the same as those of
any natural person carrying on such a business
there. A company, for example, incorporated to
carry on a departmental store business in London
could not carry on such a business in Paris, but its
stock might be bought in Paris or anywhere and
sold to customers in Paris or anywhere on orders
sent by such customers personally or through
agents. Lord Watson, it will have been noticed, in
the judgment from which an extract is printed
above, distinguishes between the objects which were
in view in securing incorporation and the powers
to be used in furtherance of those objects, the same
rule of limited capacity applying in each instance;
but it would appear on principle obvious that where
the objects are stated in general terms without spe-
cific indication of the powers to be used in further-
ance of them, the right ^ to use all ways and means
which a natural person might lawfully use in pur-
suit of like objects would be impliedly conferred.
And territorial limitations are not to be read into
the insti*ument of incorporation further than is re-
quired by those canons of construction — treated of
at length in an earlier chapter of this book * — ^which
operate to prevent the undue extension exterritori-
ally of English statutes.

Colonial Incorporation: — The power of a colon-
ial legislature, where it is the sole legislature for
the colony, in reference to the incorporation of com-
panies is in no respect different from that of the

•Perhaps a clearer distinction is required between powers
which are really part of the capacity and powers which are
strictly rights attaching to the personality of a company.

* Chapter VII., "Exterritoriality," ante, p. 65. This aspect
of the English Companies Act, 1862, is discussed in Princess of
Reuss V. Bos, L. R. 5 H. L. 176; 40 L. J. Ch. 655; suh nom. Re
General Land Credit Co., L. R. 5 Ch. 363; 39 L. J. Ch. 737.

COMPANIES. 723

British parliament. A colonially incorporated com-
pany would, perhaps, in other parts of the Empire
receive recognition only upon grounds of interna-
tional comity where a British company might be en-
titled to recognition as a matter of strict legal
right; but the point, as already intimated, is not
here of importance. "What should be noted is that
a colonial legislature may confer corporate capacity
to transact business in any part of the world; and
in determining the territorial scope of the language
of the instrument of incorporation the same rules
apply as to a British statute.^ In a recent case,
the Privy Council has expressly recognized the
power of a colonial legislature to confer upon a
corporation of its own creation the capacity to do
business anywhere in or out of the colony.^ A com-
pany had been incorporated by Act of the legisla-
ture of New South Wales at a time when that col-
ony included what are now the colonies of Victoria
and Queensland. The company by its original Act
was limited as to the scope" of its operations to the
colony of New South Wales. After the separation
of Victoria, a further Act of the legislature of New
South Wales, passed in 1857, empowered the com-
pany to carry on its business *^ in or out of '^ the
colony. The company afterwards so altered its by-
laws as to extend its business to the United King-
dom and the British South African colonies. The
exact contention raised appears from the following
extract from the judgment of the Board:

"The contention is shortly this, that the words in the
Act of 1857 empowering the society to carry on its business
'in or out oi' New South Wales did not authorize an ex-
tension of the business to England or South Africa, but
must be limited to those territories which formed part of

» See ante, p. 69, et seq.

* Campbell v, Australian Mutual Provident Society (1908), 77
L. J. P. C. 117.

724 CANADIAN constitution: self-government.

New South Wales at the date of the original constitution of
the society; that is to say, what are now New South Wales,
Victoria, and Queensland. Their Lordships are unable to
accede to this contention. The words are as wide as could
be used and there is no reason whatever for not giving them
their natural construction. This disposes of the case, so far
as it is based upon the doctrine of ultra vires/'

The strength of this pronouncement lies largely
in the fact that the power of the colonial legisla-
ture was not at all a matter of doubt; the question
was treated as one of interpretation merely.

Under a Federal System : — The power to confer
corporate capacity is no doubt a legislative power;
but that capacity is always conferred for a purpose
and not merely to establish a status.^ That pur-
pose is shewn in the objects of incorporation as de-
fined in the instrument of incorporation. Under a
federal system the legislative power of incorpora-
tion for any and all purposes and with or withbut
territorial limitation might be specifically lodged
with either the central legislature or the local legis-
latures respectively, though such an arrangement
would be manifestly illogical and inconvenient ; but
if no mention were made of this particular legisla-
tive power it seems clear that under an exhaus-
tive scheme of distribution — such for example as
that effected by the British North America Act^ —
the power to incorporate for any object or purpose
must rest with that legislature which has jurisdic-
tion over such object or purpose.

In Canada : — Bearing in mind the large principle
of allotment referred to in a previous chapter^ as

' See the judgment of Marshall, C.J., in McCulloch v. Maryland,
4 Wheaton, 316, at pp. 410-411, as quoted and adopted by Iding-
ton, J., in Canadian Pac. Ry. v. Ottawa Fire Ins. Co., 39 S. C. R.
at p. 443.

^ See ante, p. 453.

« Chapter XXII., ante, p. 448.

COMPANIES. 725

underlying the scheme of distribution embodied in
the British North America Act, namely, that all
matters of common concern are within federal jur-
isdiction and that all matters of local concern, not
merely from the standpoint of a particular locality
in a province but also from the standpoint of the
province as a unit, are within provincial jurisdic-
tion, it would appear to follow that in every case in
which the object or purpose o^f incorporation might
in regard to any province be truly characterized as
a matter of ^^ a merely local or private nature in
the province," as that phrase has been authorita-
tively construed,^^ the power to incorporate a com-
pany for the pursuit of such object or purpose must
rest with the province, even though that object or
purpose might touch or affect subjects which in
some aspects of them would clearly be within federal
jurisdiction. This, it is conceived, would be the
position if the class-enumerations of sections 91
and 92 contained no reference to the incorporation
of companies. And there is high authority for the
proposition that the specific allotment contained in
the two sections respectively has not altered the
situation; that the clauses were inserted simply by
way of abundant caution ; and that the result would
be the same if they were not there.^

Express Clauses of the British North America
Act: — Among the federal classes of section 91 the
only express power of incorporation is that men-
tioned in No. 15: ^^ Banking, incorporation of hanks,
and the issue of paper money;" while provincial
legislatures are given exclusive power to make laws

"The authorities are collected ante, p. 449 et seq.

^This view really underlies or is apparent In several of the
judgments in the Ottawa Fire Ins. Co. Case, and in Re Com-
panies, to be referred to later. On this point, however, particular
reference may be made to the judgment of Anglin, J., in the
latter case, 48 S. C. R. at p. 450 et seq.

726 CANADIAN constitution: self-government.

in relation to ^^ the incorporation of companies
with provincial objects/' The question of the in-
terpretation to be put upon the words ^^ with pro-
vincial objects " has given rise to much difference
of opinion, particularly in reference to the right -of
a provincial company to transact business beyond
the bounds of the incorporating province. The
question first came before the Supreme Court of
Canada in a case between private litigants.^ The
point was taken that the respondent company, which
was a provincially incorporated fire insurance com-
pany, could not legally contract to indemnify against
loss by fire happening to property situate without
the province of Ontario, the incorporating pro-
vince. The policy had been delivered by the
company's agents at Montreal to the appellant rail-
way company and it was contended that the con-
tract had been entered into there, that is to say,
outside the incorporating province; the insurance
company's right to enter into a contract elsewhere
than in Ontario being contested. Three of the judges
(Idington, Maclennan, and Duff, JJ.) affirmed the
validity of the policies, two (Fitzpatrick, C.J., and
Davies, J.) held them ultra vires, while the sixth
judge (Girouard, J.) declined to express an opinion
upon the point. Afterwards upon a reference from
the Governor-General in Council the judges of the
Supreme Court in 1913 expressed their opinion
upon the same question, put in this form: — ^

" Has a corporation constituted by a provincial legisla-
ture "with power to carry on a fire insurance business, there
being no stated limitation as to the locality within which
the business may be carried on, power or capacity to make
and execute contracts —

» Canadian Pacific Railway Co. v. Ottawa Fire Ins. Co. (1907),,
39 S. C. R. 405.

*R€ Companies, 48 S. C. R. 331.

COMPANIES. 727

(a) within the incorporating province insuring property

outside of the province;

(b) outside of the incorporating province insuring pro-

perty within the province;

perty outside of the province?"

The Chief Justice (Sir Chas. Fitzpatrick) and
Davies, J., answered in the negative, intimating
however that the territorial limitation would not
operate to invalidate contracts made with persons
residing without the province in reference to mat-
ters ancillary or necessarily incidental to the exer-
cise of the companies' substantive powers. The
other four judges (Idington, Duff, Anglin, and Bro-
deur, JJ.) answered each of the three questions
substantially in the affirmative.

A number of other questions were put touching
the matter of provincial power in a more general
and abstract way ; but in view of the later pro-
nouncement of the Privy Council in the John Deere
Plow Co. Case* that the task set the judges of the
Supreme Court of Canada by the reference in ques-
tion was an impossible one, and in view also of the
further fact that the whole matter is understood
to be before the Privy Council upon appeal in the
reference case itself, it is not thought proper to at-
tempt any statement at length of the views ex-
pressed by the individual judges. The decision in
the earlier case must be taken to represent the law
in Canada to-day upon the questions of principle
involved in the decision. There are, however, cer-
tain judgments of the Privy Council bearing di-
rectly upon those questions and these are, of course,
authoritative and binding so far as they go. They
must now be considered.

* (1915), A. C. 330; 84 L. J. P. C. 64.

728 CANADIAN constitution: self-government.

Privy Council Decisions-. — ^The subject of com-
pany incorporation in Canada first came before the
Privy Council in Parsons' Case^ in which it was held
that ^* the legislative authority of the parliament
of Canada over the regulation of trade and com-
merce " (section 91, No. 2) did not comprehend the
power to legislate as to '' the contracts of a par-
ticular business or trade, such as the business of
fire insurance, in a single province;" and accord-
ingly a provincial Act providing for certain uniform
conditions in all fire insurance policies was upheld
as a matter relating to ^^ property and civil rights
in the province '' (section 92, No. 13). How far a
company incorporated by or under an Act of the
parliament of Canada is subject to the law of any
province in which it may carry on its business was
the question really before the Board; a question to
be dealt with later. But incidentally the power of
a provincial legislature in relation to company in-
corporation came up in this way. One of the appel-
lant insurance companies was an English company,
the other a company originally incorporated by the
parliament of (old) Canada before Confederation.
After Confederation a Dominion Act changed the
name of the latter company and confirmed its incor-
poration and corporate rights. Mr. Justice Tas-
chereau in the Supreme Court of Canada had con-
sidered that to assert the right of the province to
legislate with regard to the contracts of such a com-
pany was to deny the right of the Dominion parlia-
ment to incorporate it. He had assumed that this
latter right rested upon section 91, No. 2, ^* the
regulation of trade and commerce." As to this the
Privy Council said:

" It is not necessary to rest the authority of the Do-
minion parliament to incorporate companies on this specific

»7 App. Cas. 96; 51 L. J. P. C. 11. Extract ante, p. 684.

COMPANIES. 729

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 legislatures of
the provinces ; and the only subject on this head assigned to
the provincial legislature being ^ the incorporation of com-
panies with provincial objects/ it follows that the incor-
poration of companies for objects other than provincial falls
within the general powers of the parliament of Canada.
. . . The Dominion parliament had alone the right to
create a corporation to carry on business throughout the
Dominion. . . ."

In a later case ^ a company incorporated by a
Dominion Act was the appellant. The validity of
the Act of incorporation had been upheld in the
Quebec Courts, but the company was held to be con-
ducting its business illegally in contravention of
provincial law. This was the chief matter in con-
troversy before the Board, but their Lordships dealt
also with the larger question in this way:

" The company was incorporated with powers to carry
on its business, consisting of various kinds/^ — to deal in
land, to act as agents or trustees, etc. — "throughout the
Dominion. The parliament of Canada could alone constitute
a corporation with these powers; and the fact that the
exercise of them has not been co-extensive with the grant
cannot operate to repeal the Act of Incorporation, nor
warrant the judgment prayed for, namely, that the com-
pany be declared to be illegally constituted. . . . What
the Act of Incorporation has done is to create a legal and
artificial person with capacity to carry on certain kinds of
business, which are defined, within a defined area — namely,
throughout the Dominion.^^^

• Colonial Building & Investment Assn. v. Atty.-Gen. of Quebec,
9 App. Cas. 157; 53 L. J. P. C. 27.

' As a matter of fact, there was no express territorial limita-
tion in the Act of incorporation. There was a recital that the
incorporators owned land in the district of Montreal and " else-
where in the Dominion" and express power was conferred to
establish branch offices or agencies not only throughout Canada
but in England and in the United States.

730 CANADIAN constitution: self-government.

As has been pointed out, this passage does indi-
cate that there is a territorial limitation involved in
the phrase^ with provincial objects;^ that, taking
the case actually decided, to carry on a business
outside a province is not a provincial object. But
it was also considered ^^ that on the authorities as
to the meaning in a territorial sense of the phrase
*^ to carry on business '' and similar phrases, the
opiniqn expressed by the Privy Council in the above
extract should not be taken as opposed to the pro-
position that a company's business — the object of ,
its incorporation — is not in law or in fact carried
on outside of a province if it is controlled and man-
aged from the head centre of the company within
such province; if, as it has been put, the ^^ brain ''
of the company has a fixed seat within the pro-
vince.® This is the view which obviously underlies
the opinions of the majority of the Supreme Court
of Canada in reference to the powers of a provin-
cially incorporated fire insurance company. Its
business, that is to say, its object, is to enter into
contracts of indemnity against loss by fire. To es-
tablish, conduct, and control from within the pro-
vince such a business is not to carry it on without
the province, even where the contract is made
through agents abroad, with persons abroad, and in
respect of property situate abroad. ^4^ C/

In this view the limitation involved in the phrase
*^ with provincial objects '' is territorial in the same
sense that the phrase ** matters of a merely local or
private nature in the province '^ (section 92, No.
16) involves a territorial limitation.

/•See particularly the judgment of Duff, J., in the Ottawa
Fire Ins. Go. Case, 39 'S. C. R. at p. 406 et seq.

•Many authorities are cited in the judgment of Duff, J., re-
ferred to in the last note. Later cases are JoJin Deere Plow Co. v.
Agnew, 48 S. C. R. 208; Egyptian Hotels, Ltd. v. Mitchell (1914),
3 K. B. 118; 83 L. J. K. B. 1510.

COMPANIES. 731

The question has very recently been again before
the Supreme Court of Canada ; and it was held by
the majority that a company incorporated under the
Companies Act of Ontario to carry on mining opera- /tf ' J
tions could not validly acquire mining properties in (/^^^^^ ^
the Yukon Territory. There were no words of terri- A^t^r^-^

torial limitation in the companies' memorandum of
association, but it was considered that the carrying "^^^ ^
on of mining in the Yukon Territory could not be /j? /O

deemed a provincial object as to Ontario.^

Companies' '' Objects:"— The purposes or ob-
jects to be served by incorporation are, like the
possible subjects of legislation,^ numberless ; but it
may not be quite useless to consider some possible
objects which touch closely the class-enumerations
of the British North America Act. The ^ * works and
undertakings," for example, mentioned in section
92, No. 10, have been described by the Privy Coun-
cil as physical things. Such of them as extend, ac-
tually or potentially, beyond the limits of a province
are within the exclusive control of the parliament of
Canada; and are manifestly not provincial objects
for the establishment, control, and operation of
which a provincial company could be incorporated.
And the same remark applies to such undertakings
as, though entirely located in one province, have
been declared to be for the general advantage of
Canada. That very declaration, the truth of which
no Court can question, stamps them as objects other
than provincial. On the other hand, a steamship
line operating solely within a province is as a
^* work and undertaking '^ within the exclusive
jurisdiction of the provincial legislature. And
it has been held that it is also a provincial
object for the management and control of which

,** Bonanza Creek, dc, Co. v. R. (1915), 50 S. C. R. 534.
•See ante, p. 442.

732 CANADIAN constitution: self-government.

a provincial company may be validly incor-
porated/^ There would be a manifest terri-
torial limitation preventing such a company
from extending its line beyond the province; but
in no other sense would there be a territorial
limitation. It might buy its boats in England, hire
their crews in New York, and provision them in an
adjoining province. And, nevertheless, in all its
operations it would be subject to federal law validly
enacted on the subject of navigation and shipping,
just as it would be subject to the provisions of the
imperial Merchant Shipping Acts where they ap-
plied.

The same view was taken in a case in Manitoba.
A provincial Act incorporating a company as car-
riers within the province of passengers and goods
by water was upheld.^ The same company was fur-
ther authorized to catch, cure, transport, and deal
in fish within the province and this feature of its
charter was also held valid, notwithstanding the
power of the parliament of Canada over ' ^ sea coast
and inland fisheries " (section 91, No. 12), but al-
ways of course subject to federal regulations validly
enacted.

The view has been expressed that the question
whether or not the objects of a company, to be gath-
ered of course from the incorporating instrument or
instruments, are provincial objects must in each case
be determined as a question substantially of fact.^

^^ Macdonald v. Union Navigation Co. (1877), 21 L. C. Jur. 63.
It is rather curious that no reference is made in the judgments
to No. 11 of section 92. The incorporation was upheld under No.
10, supporting the view expressed by other judges (see ante,
p. 725), that No. 11 was inserted through abundant caution and
was really unnecessary.

^Re Lake Winnipeg Transportation, ^dc, Co. (1891), 7 Man.
L. R. 255.

^Per Duff, J., in Re Companies, 48 S. C. R. at p. 399; repeated
in Bonanza Creek, tgc, Co. v. R. (1915), 50 S. C. R. at p. 575.

COMPANIES. 733

In this view, it is conceived, the question is really
the same as arises constantly under section 92, No.
16, '^ matters of a merely local or private nature in
the province. ^'^

Territorial Limitation : Other Cases : — There is
an early decision by the Supreme Court of Canada,
upon a reference from the Senate, based apparently
upon the view that the phrase *' with provincial ob-
jects '' has reference to the legislative jurisdiction
of the incorporating legislature. A bill to incorpor-
ate the Christian Brothers was reported upon as
uttra vires of the parliament of Canada as infring-
ing upon the powers of the provinces in the matter
of education.*

In an early case in Ontario it was held by the
Master in Ordinary (Mr. Thos. Hodgins, Q.C.) that
an insurance company incorporated under a provin-
cial statute could enter into a contract insuring pro-
perty situate out of the province.^ On appeal the
constitutional point was not touched. And in a
later case in British Columbia it was held gener-
ally that a provincial company may carry on its
business out of the province and yet that business
might be provincial.® The view was expressed by
Hunter, C. J., that the true antithesis of * ^ provincial
objects " is ^^ non-provincial objects '' and not
'^ Dominion objects,'' and he added that provincial
objects might possibly be extra-provincial. The ref-
erence, however, to the Act of the New Brunswick
legislature in question in Dow v. Black ^ is inaccurate.
The Act did not, as suggested, authorize a levy to

' See ante, p. 376.

*Coutlee's S. C. Cas. 1; Senate Jour. 1876, Vol. 10, 150, 206.
» Clark V. Union Fire Ins. Co., 10 Ont. Prac. R. 313 ; 6 Ont. R.
223.

* Boyle V. Victoria Yukon Trading Co., 9 B. C. 213.
^ L. R. 6 P. C. 272; 44 L. J. P. C. 52. See ante, p. 415.

734 CANADIAN CONSTITUTION : SELF-GOVERNMENT.

pay a bonus to a foreign railway, the operation of
which was an object of provincial advantage; the
bonus was payable to a provincial company operat-
ing a line in the province to connect with the foreign
railway, not to the foreign railway itself. The very
purpose or object of the incorporation in the Brit-
ish Columbia Case was to carry on a trading and
transportation business between the province and
the Yukon Territory, and it seems difficult to pro-
perly characterize such a business as a provincial
object.

Enlargement of Capacity: — The object or pur-
pose to be furthered by the incorporation of a com-
pany, as set forth in the instrument of incorpora-
tion, fixes the company's capacity. The territorial
range of the actual exercise of its powers by a fed-
eral company does not affect the validity of the in-
corporation; and the same proposition applies, it is
conceived, to a provincial company incorporated for
an object truly '' provincial.'' As to a federal com-
pany the proposition is one expressly laid down by
the Privy Council that the fact that such a company
does not see fit to extend its operations beyond the
bounds of a single province cannot affect its status
as a duly incorporated company or render its Act
of incorporation void;^ and, conversely, if the view
which now prevails be sound that the business of a
provincially incorporated company carried on
within a province may validly cover transactions
with persons, and affecting property, without the
province, such transactions- cannot weaken the valid-
ity of the incorporation or the status of the com-
pany as one incorporated '^ with provincial ob-
jects."

*Col. Building Assn. v. Atty.-Gen. of Quebec, 9 App. Cas. 157;
53 L. J. P. C. 27.

COMPANIES. 735

But, on the other hand, federal legislation cannot
operate to enlarge the corporate capacity of a pro- i^^^^,^*. xA ^
vincial company so as, in other words, to authorize /^
it to carry on a business or pursue an object other ^^ r^
than provincial, whatever may be the true interpre- ^tXeo,-^ ^ j"
tation of the phrase ** with provincial objects;'' .. ^ '
and, conversely, provincial legislation cannot add a '

provincial object to the objects of incorporation as (Lfp^^^jfyr^
defined in the charter of a federal company, for • ^
those must be ^ ^ other than provincial ' ' as the Privy ^^-^"^5"^
Council has said.^ As to federal legislation in C^

assumed enlargement of the capacity of a provin-
cial company, the question was thus put on a refer-
ence to the Supreme Court of Canada: —

Can the powers of a company incorporated by a pro-
vincial legislature be enlarged, and to what extent, either
as to locaHty or objects by

(a) the Dominion parliament?

(h) the legislature of another province ?^^

And, although, as has been already pointed out, the
judges of the Supreme Court differed radically as
to the permissible territorial range of the opera-
tions of a provincial company, the above question
was unanimously answered in the negative as to
both its branches.

There is, however, one exception. A provincial
company incorporated with the ^' provincial ob-
ject '' of establishing and operating a local work or
undertaking, may become a federal company by its
work and undertaking being declared by the parlia-
ment of Canada to be a work for the general advan-
tage of Canada; the effect of such a declaration
being that the object or purpose of incorporation is
no longer a ^^ provincial object.'' In such case it

'^Parsons' Case, see ante, p. 729.
^'*Re Companies, 48 S. C. R. 331.

736 CANADIAN constitution: self-government.

seems clear that the provincial Act of incorpora-
tion must be deemed thenceforth a federal Act,
which no provincial Act could subsequently alter
or repeal. But, as already noticed,^ this is the one
and only case in which under the British North
America Act the distribution of legislative power
thereby effected as between the Dominion parlia-
ment on the one hand and a provincial legislature
on the other can be altered at the will of either.

As to the effect of conjoint action by the legis-
latures of two or more provinces, an early case
^^ J before the Privy Council afforded clear authority

^. I for the unanimous view taken by the judges of the

Supreme Court that one province cannot add to the
corporate capacity of a company incorporated by
another, that is to say, so as to warrant the pursuit
\ of objects which would be other than provincial as
-^ to the incorporating province. The question before
the Board was as to an Act of the province of Que-
bec purporting to deal as to that province with the
Temporalities Fund of the Presbyterian Church."
That fund had been by a pre-confederation statute
of the old province of Canada entrusted to an in-
\ corporated Board, and, having regard to the
nature of the fund, the constitution of the
Board, and the domicile of the beneficiaries in
both Ontario and Quebec, it was held that
the incorporating statute was not severable so as
to be treated after the union as two provincial
statutes, one of Ontario, the other of Quebec. In
other words the objects of incorporation were not
provincial objects as to either province, so as to
entitle the legislature of either province to deal
with the fund. The legislature of Ontario had
passed an Act similar to the Quebec statute, but it

^Ante, p. 379.

^Dohie V. Temp. Fund Board, 7 App. Cas. 136; 51 L. J. P. C. 26.

COMPANIES. 737

was held that the maxim juncta juvcmt could not
apply —

'^seeing that the power of the provincial legislature to
destroy a law of the old province of Canada is measured by
its capacity to reconstruct what it has destroyed. If the
legislatures of Ontario and Quebec were allowed jointly to
abolish the board of 1858, which is one corporation in and
for both provinces, they could only create in its room two
corporations, one of which would exist in and for Ontario
and be a foreigner in Quebec, and the other of which would
be foreign to Ontario, but a domestic institution in Quebec."

Subjection of Federal Companies to Provincial
Laws, and vice versa: — It may be said generally
that a company is in the same position as a natural
person in regard to subjection to the law of the
land. In the pursuit of its objects, a federal com-
pany is governed by all provincial laws validly en-
acted; and, conversely, provincial companies must
obey the requirements of all valid federal laws.

(a) Federal Companies: — ^As to federal com-
panies the position was thus stated in Parsons'
Case,^ in which the validity of an Ontario Act pre-
scribing that certain uniform conditions should
form part of all insurance contracts in the pro-
vince was affirmed as against both a federal com-
pany and a company incorporated under a British
Act:

It was contended, in the case of the Citizens' Insurance
Company of Canada, that the company having been originally
incorporated by the parliament of the late province of Can-
ada, and having had its incorporation and corporate rights
confirmed by the Dominion parliament, could not be affected
by an Act of the Ontario legislature. But the latter Act
does not assume to interfere with the constitution or status

»7 App. Cas. 96; 51 L. J. P. C. 11.

CAN. CON. — 47

^'\

738 CANADIAN constitution: self-government.

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 status, requires that
if they choose to make contracts of insurance in Ontario, re-
lating to property in that province, such contracts shall be
subject to certain conditions.'^ . . .

" Suppose the Dominion parliament were to incorporate
a company 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 rights in the province') that it
could 'hold land in that province in contravention 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
^A r preserve its status as a corporate body."

This latter .passage the committee explain in a
later ease by saying that they had not in view the
special law of any one province, nor the question
whether the prohibition was absolute, or only in
the absence of the Crown's consent; that their ob-
ject 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.^ Speaking

^Colonial Bldg. Assn. v. Atty.-Oen. (Que.), 9 App. Cas. 157;
53 L. J. P. C. 27. And see CooiJer v. Mclndoe, 32 L. C. Jur. 210.
In this connection also may be mentioned McDiarmid v. Hughes,
16 Ont. R. 570, 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 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

COMPANIES. 739

of the Act of incorporation in question in this later
ease, their Lordships say:

" What the Act of incorporation has done is to create a
legal and artificial person with capacity to carry on certain
kinds of business which are defined, within a defined area,
namely, throughout the Dominion. Among other things, it
has given to the association power to deal in land and build-
ings ; but the capacity so given only enables it to acquire and
hold land in any province consistently with the laws of that
province relating to the acquisition and tenure of land. If
the company can so acquire and. hold it, the Act of incor-
poration gives it capacity to do so.^'

A very recent case brings ont strongly the fact v

that the objects of a company incorporated under v'v
federal Act may have special relation to some par-
ticular subject within exclusive federal jurisdiction.
This is pre-eminently so in the case of companies
incorporated to establish and carry on works and
undertakings of the classes set out in the excep-
tions to No. 10 of section 92; such, for example, as
federal railways, federal telegraph and telephone'
lines, federal steamship lines, and others. In such
cases it is not going too far to say that the work
and undertaking, itself within exclusive federal
jurisdiction, is substantially the whole object of the
incorporation. The result has been to create some
confusion in the cases. Certain rights have been

passed extending to all Her Majesty's possessions providing that
thereafter a license from the Crown should not be necessary to
enable any corporation to hold lands therein; but it seems a
non sequitur 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 pro-
vincial legislatures, the latter have exclusive jurisdiction. The
right 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 executive head of that
government whose legislature has power to pass laws in rela-
tion to real property within its territorial limits.

740 CANADIAN constitution: self-government.

treated as if conferred by the incorporation simply,
whereas they really rest upon the legislative power
of the parliament of Canada over the object or pur-
pose of the incorporation, namely the work or un-
dertaking. The distinction between such a case and
the case of a federal company incorporated as an
insurance company (as in Parsons' Case^) or as a
land company (as in the Colonial Building Co.
CasG^) seems obvious. Federal works and under-
takings will be dealt with in a separate chapter;
but the recent case above referred to, and now to
be dealt with, shows that in other cases as well the
Act of incorporation of a company of a particular
class may have peculiar relation to some subject
within exclusive federal jurisdiction, so that both
as to the capacities and rights of the company there
is a greater legislative power in the parliament of
Canada than in the case of such companies as
those instanced above. In the John Deere Plow
Co. Case ^ the Privy Council has just held that in
the incorporation of a federal trading company
the legislative power of the Dominion parliament
over ^^ the regulation of trade and commerce '*
comes into play to confer rights the exercise
of which in any province cannot be prevented
by conditions precedent enacted by the pro-
vincial legislature. But even in the case of such
'* interprovincial agencies of trade and commerce '*
(as they have been called^) provincial law no doubt
governs them very largely in their business trans-
actions, as intimated in the following passage:

" It is true that even when a company has been incor-
porated by the Dominion Government, with powers to trade,
it is not the less subject to provincial laws of general appli-
cation enacted under the powers conferred by section 92.

^ See ante, p. 730.

*'See ante, p. 729.

' (1915), A. C. 330; 84 L. J. P. C. 64.

« See Re Companies, 48 S. C. R. at p. 407.

COMPANIES. 741

Thus, notwithstanding that a Dominion company has
capacity to hold land, it cannot refuse to obey the statutes
of the province as to mortmain {Colonial Building Associa-
tion V. A.-G. of Quebec, 9 A. C. 157 at 164) ; or escape the
payment of taxes, even though they may assume the form
of requiring, as the method of raising a revenue, a license
to trade which affects a Dominion company in common with
other companies (Bank of Toronto v. Lambe, 12 A. C. 575).
Again, such a company is subject to the powers of the pro-
vince relating to property and civil rights, under section 92
for the regulation of contracts generally (Citizens* Insur-
ance Co. V. Parsons, 7 A. C. 96).

To attempt to define a priori, the full extent to which
Dominion companies may be restrained in the exercise of
their powers by the operation of this principle is a task
which their lordships do not attempt.^'

(b) Provincial Companies: — No doubt has been
suggested as to the subjection of provincial com-
panies to federal law validly passed in relation to
any matters touched by the companies' operations.
For example, a provincial company incorporated to
establish and carry on a local work or undertaking
such as a provincial steamship line or a boom com-
pany is subject to federal law relating to naviga-
tion and shipping;^ and similar examples might be
multiplied indefinitely. The federal Winding-up
Act applies to provincial companies which have be-
come insolvent.^**

In short, the proposition may be put as to both
federal and provincial companies in the most com-
prehensive way, that they are bound by all existing
laws competently enacted whether by the legisla-
ture to which they owe their corporate existence or
by any other, imperial, federal, or provincial.

^Re Lake Winnipeg Transp. Co., 7 Man. L. R. 243; MacMillan
v. S. W. Boom Co., 1 Pugs. & Burb. 715; Queddy R. Boom Co.
V. Davidson, 10 S. C. R. 222. See ante, p. 706.

" Snoolbred v. Clark, 17 S. C. R. 265 ; Re Cramp Steel Co., 16
Ont. L. R. 230; and see post, p. 809 et seq.

CHAPTEE XXXVI.

WoKKs AND Undertakings: Eailways.

The sections of the British North America Act
which directly touch this topic are section 91, No.
29, and section 92, No. 10, which should be read in
reverse order as follows:

92. In each province the legislature may exclusively make
laws in relation to matters coming within the classes of sub-
jects next hereinafter enumerated, that is to say : — . .

10. Local works and undertakings other than such as
are of the following classes, —

a. Lines of steam or other ships, railways, canals,
telegraphs and other works and undertakings
connecting the province with any other or others
of the provinces, or extending beyond the limits
of the province;

&. Lines of steamships 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 Canada, or for the ad-
vantage of two or more of the provinces. . '. .

91. . . . the exclusive legislative authority of the
parliament of Canada extends to all matters coming within
the classes of subjects next hereinafter enumerated; that is
to say: — . . . .

29. Such classes of subjects as are expressly excepted
in the enumeration of the classes of subjects by this
Act assigned exclusively to the legislatures of the
provinces

WORKS AND UNDERTAKINGS. 743

As pointed out in the Through Traffic Case^ the
effect of section 91, No. 29, is to transfer to that
section the three classes, a, h, and c, which are by
section 92, No. 10, expressly excepted from provin-
cial jurisdiction. And to those three classes, of
course, the concluding clause of section 91 applies;
that is to say, any matter falling within any one of
those three classes is not to be deemed a local pro-
vincial matter exclusively within the scope of any
of the class-enumerations of section 92.^

It was suggested in Ontario as late as 1880 that
the class-enumerations of section 92, No. 10, were
intended to apply solely to works and undertakings
of a public character to be established at the public
expense;* but in the same year the Privy Council
dealt with a case in which a railway constructed by
a private company under a provincial Act had been
declared by the Dominion parliament to be a work
for the general advantage of Canada, and no doubt
seems to have been suggested as to the jurisdiction
of that parliament to make such a declaration as
to such a railway.* And no subsequent case lends
any support to the contrary view suggested in the
Ontario case.

Companies and their '^ Works :'^ — It was re-
marked in the last chapter that works and under-
takings of the character indicated in these classes
are usually established and managed by incorpor-
ated companies, and that some confusion had arisen
in the cases through a failure to distinguish between

* (1912), A. C. 333; 81 L. J. P. C. 145. Repeated and empha-
sized in Re AWerta Railway Act (1915), A. C. 363; 84 L. J. P.
C. 58.

*See ante, p. 451.

*Re Junction Ry. and Peterborough, 45 U. C. Q. B. at p. 317.
per Cameron, J.

*Bourgoin v. Montreal, 0. & 0. Ry., 5 App. Cas. 381; 49 L. J.
P. C. 68.

744 CANADIAN constitution: self-government.

'tile capacities and powers conferred by the instru-
ment of incorporation merely and the powers or
rights the bestowment of which in connection with
-the work or undertaking rests upon the legislative
jurisdiction over such work or undertaking irre-
spective of the fact that a company is empowered
to establish and operate it.^ In truth, in such case
the Act of incorporation is more than a mere in-
strument of ■ incorporation ; it is not only that but
it is also substantive legislation relating to the
work or undertaking. The result of not paying
strict attention to the distinction indicated has been
that of late a greater immunity from the require-
ments of provincial law has been claimed for fed-
eral companies than the earlier authorities would
warrant.^ And this claim has been put forward in
cases in which the object or purpose of incorpora-
tion has relation to matters, as for example insur-
ance contracts,^ which in each province are prima
facie within the ambit of provincial authority. The
root of the difficulty is largely in the interpretation
which has been put upon the judgment of the Privy
Council in what is usually styled the Hydraulic
Company's Case.^ The matter is one of such mo-
ment that before proceeding to deal with works and
undertakings strictly as such, and apart from any
consideration as to their control by incorporated
companies, it will be well to dispose, if possible, of
this preliminary difficulty.

The Hydraulic Company's Case: — The appel-
lant company was a provincial company incorpor-
.ated to produce and sell electricity within a radius

^ See ante, p. 739.

® Colonial Building Co. v. Atty.-Gen. of Quebec; Parsons^ Case,
do., see ante, pp. 740-1.

' See Re Companies, 48 S. C. R. 331, with particular reference
to questions 6 and 7.

' Compagnie Hydraulique de 8t. Francois v. Continental Heat
d Power Co. (1909), A. C. 194 ; 78 L. J. P. C. 60.

WORKS AND UNDERTAKINGS.- 745

of- a few miles from a Quebec village, and the Act
of incorporation prohibited any other company
from exercising similar powers within that terri-
tory. The respondent company was a federal com-
pany empowered to manufacture, supply, sell, and
dispose of gas and electricity. It invaded the ter-
ritory of the appellant company which thereupon
applied for an injunction to restrain such invasion.
The injunction was refused by the Quebec Courts
and in a short judgment the Privy Council upheld
the refusal. There is no mention in the judgment
of any particular class in either section 91 or sec-
tion 92, and no reference to the fact that the re-
spondent company's enterprise was a work or un-
dertaking extending, actually or potentially, beyond
the limits of Quebec. What their Lordships said
was this:

" The contention on behalf of the appellant company was,
that the only effect of the Canadian Act was to authorize the
respondent company to carry out the contemplated operations
in the sense that its doing so would not be ultra vires of the
company, but that the- legality of the company's action in
any province must be dependent on the law of that province.
This contention seems to their Lordships to be in conflict
with several decisions of this Board. Those decisions have
established that where, as here, a given field of legislation
is within the competence both of the parliament of Canada
and of the provincial legislature and both have legislated, the
enactment of the Dominion parliament must prevail over
that of the province if the two are in conflict as they clearly
are in the present case."

The particular decisions the Board had in mind
are not specified.^ In the Quebec Courts the Bell
Telephone Co/s Case, to be dealt with in a

»In the Law Journal Reports (78 L. J. P. C. 60) the reporter
refers in a footnote to TennanVs Case (1894), A. C. 31; 63 L. J.
P. C. 25; to the Voluntary Assignments Case (1894), A. C. 189;
63 L. J. P. C. 59; and to the Contracting Out Case (1907), A. C.
65; 76 L. J. P. C. 23.

746 CANADIAN OONSTlTtJTION : SELF-GOVERNMENT.

moment, was considered the governing authority
and that would seem to be manifestly the correct
view. The ^ given field of legislation/ referred
to in the judgment, was evidently the field covered
by '^ works and undertakings.'^ The two Acts
of incorporation were, as already suggested,
more than mere incorporating instruments; they
were substantive enactments in relation to cer-
tain works and undertakings, the one local or pro-
vincial only, the other federal, contemplating and
authorizing physical extension both within and be-
yond the limits of the province. Any provincial
legislation therefore which directly purported to
restrict the intra-provincial area within which the
federal work could extend itself would be repug-
nant to a valid enactment of the parliament of Can-
ada, passed in relation to a work or undertaking
over which, as a work or undertaking, a provincial
legislature had no jurisdiction. This was the ac-
tual decision in the Bell Telephone Co.'s Case,^^ in
which it was held that the company had the right,
given to it by federal legislation relating to its
work and undertaking, to erect poles and string its
wires along the streets of Toronto without the con-
sent of the city in spite of a provision to the con-
trary in the provincial Municipal Act. And the
same principle underlies the recent decision of the
Privy Council in the John Deere Plow Co. Case,^
in which the company's Act of incorporation was
treated not only as an instrument of incorporation
but also as legislation relating to the regulation of
interprovincial trade and commerce, and in which
it was accordingly held that provincial legislation
could not by way of conditions precedent shut out
the company from a particular province.

^"Toronto v. Bell Telepfione Co. (1905). A. C. 52; 74 L. J. P. C.
22.

^John Deere Plow Co. v. Wharton (1915), A. C. 330; 84 L. J.
P. C. 64.

WORKS AND UNDERTAKINGS. 747

Extension Beyond a Province: ''Physical
Things '': — It was the opinion of the late Mr. Jus-
tice Street that the connection between two pro-
vinces, or the extension beyond a province, requisite
to bring a work or undertaking within class a of
section 92, No. 10, was intended to be real and phy-
sical, and not a mere paper connection or extension
created by a charter; but this view has been ex-
pressly overruled.^ Of course, a work or undertak-
ing not created under statutory authority would
have to be judged upon the actual facts, but no case
of that kind has come up for adjudication, as par-
liamentary sanction by an Act of incorporation or
otherwise is nearly always obtained. The result is
that the character of the work or undertaking
stands to be judged in most cases by the descrip-
tion of it contained in the instrument of incorpora-
tion. And the Privy Council has laid it down that
it is the potential, and not the actual, sphere of
operation which fixes the character of a work or
undertaking as federal or provincial, just as a
company's capacity for action and not the actual
exercise of its powers fixes its objects as provincial
merely or other than provincial.^ The works and
undertakings covered by these classes have been
described by the Privy Council as '^ physical things
not services.'** Except in the case of class c, ex-
tension beyond the limits of a single province must
be a feature of the work or undertaking. But the'
fact that at any given moment the work may be
confined to a single province does not affect the
validity of the federal Act providing for its estab-
lishment and operation, or make the work at any

» Toronto v. Bell Telephone Co., 3 Ont. L. R. 465 ; reversed on
appeal: see (1905) A. C. 52; 74 L. J. P. C. 22.

'Colonial Building Co.'s Case, 9 App. Cas. 157; 53 L. J. P. C.
27. See ante, p. 729.

* Through Traffic Case (1912) A. C. 333; 81 L. J. P. C. 145.

748 CANADIAN constitution: self-government.

such moment a local work or -undertaking, so as to
subject it to any provincial law relating to local
works and undertakings as such.^

Physical Continuity: — To what degree, if any,
there ihust be a physical connection, actual or con-
teinplated, between the works or undertakings in
one province and in another in order that it may be
said with truth that the whole work or undertaking
extends or may extend beyond one province or that
it connects one province, with another, so as to
make the work or undertaking as a whole a proper
subject for federal legislation, is a question upon
which there is no authoritative pronouncement. It
is quite conceivable that a manufacturing company,
for example, might be incorporated and properly
incorporated by the Dominion parliament, for the
purpose of erecting and operating manufacturing
plants in two or more provinces; but whether in
each province those plants would be other than
local works or undertakings, and as such within
the exclusive jurisdiction of the provincial legisla-
tures, is a very debatable point. It is obvious
that a continuous or even actual physical connec-
tion is not contemplated in some of the classes men-
tioned; for example, steamship lines, or a wireless
telegraphy system; and, perhaps, the use of the
word '^ undertaking " indicates that physical con-
nection between the different parts of the under-
taking is not essential, so long as the undertaking
as a whole has to do with physical things worked
and controlled as one, though spread over different
provinces. In all these cases, as the Privy Council
has just emphasized in the Alberta Railway Act
CasCy^ it is a question of constitutional power,

' Toronto v. Bell Telephone Co., supra; Kerley v. London d
Lake Erie Ry., 28 Ont. L. R. 606 (C.A.).
« (1915), A. C. 363 ; 84 L. J. P. C. 58.

WOKKS AND UNDERTAKINGS. 749

which should not be denied because of administra-
tive difficulties. These are possible and indeed in-
evitable under a federal system; but no assumption
is permissible that any legislature, federal or pro-
vincial, will abuse its power, in the one ease to the
detriment of any locality or province, in the other
against the interests of Canada as a whole.

''For the General Advantage of Canada'':—
It has been made a question by individual fudges
whether the power of the parliament of Canada ex-
tends so far as to declare a particular class of
works to be works for the general advantage of
Canada or whether it is a power exercisable only
in individual cases as they arise ; ^ but no case has
turned upon the point. Where the only declaration
was in the shape of a preamble that it was desir-
able '* for the general advantage of Canada '' that
a company should be incorporated for a certain
purpose, there was a marked difference of opinion
among the judges of the Supreme Court of Canada
as to the effect of this preamble in bringing the
work within class c; but as the work contemplated
extra-provincial extension of its wires it was held
to fall within a and therefore no declaration was
necessary.^ The view was further expressed that
because the company's operations would interfere
with the navigation of the Welland Eiver the un-
dertaking was within the exclusive jurisdiction of
the parliament of Canada, but this, it is conceived,
is not a correct statement of the law ; ^ unless, in-
deed, the fact that the Welland Eiver at the locus
had by a pre-confederation statute of Canada been
declared to be public property, as part of the Wel-

* See Re St. Joseph and Quedee Central Ry., 11 Ont. L. R. 193.
'Hewson v. Ontario Power Co., 36 S. C. R. 596; 8 Ont. L. R.
9 ; 6 Ont. L. R. 11.

"•' See ante, p. 707 ct seq.

750 CANADIAN constitution: self-government.

land Canal system, would make federal legislation
necessary.^*^

Where the work or undertaking falls within
either class a or class h of section 92, No. 10, a de-
claration by the parliament of Canada in the terms
of class c is unnecessary and unmeaning ; ^ and it
has been recently held by the Court of Appeal for
Ontario that the provision in the Dominion Lord's
Day Act allowing provincial legislation in regard
to Sunday labor on works which, but for such a
declaration, would be within provincial jurisdiction
as being local works and undertakings merely does
not apply at all to railways or steamship lines fall-
ing within class a or class b.^

E AIL WAYS.

Eailways are mentioned in section 92, No. 10,
as one particular species of ^' works and undertak-
ings,'' and there are many federal railways and
many provincial railways, which as works and un-
dertakings are within the exclusive jurisdiction of
the parliament of Canada and the provincial legis-
latures respectively, as the case may be. Thej
may well be taken for special treatment, not merely
because of their importance, but also because they
are typical and the general principles governing all
' ' works and undertakings ' ' have been very largely
settled in cases in which railways have been liti-
gants. Moreover, in determining what enactments
are to be constitutionally classified as laws in re-
lation to ** railways,'' resort has been had in a
marked degree to the doctrine of implied or neces-
sarily incidental or ancillary powers. Upon this

'* This is one of the grounds taken by Britten, J., in the court
of first instance: 6 Ont. L. R. 11.
^ Bell Telephone Co.^s Case, supra.
'Kerley v. London d L. E. Ry. (1913), 28 Ont. L. R. 606.

RAILWAYS. 7$1

feature of the cases toucliiiig railways reference
should be had to a previous chapter in which the
doctrine is discussed.^ It was there pointed out
that the doctrine must necessarily have but a re-
stricted application in determining the scope of
competing, mutually exclusive, class-enumerations;
and that although the powers conferred are plenary
powers of legislation and the descriptions of the
classes should prima facie cover all that may be
taken by reasonable implication from the language
used, nevertheless the language describing a com-
peting class may forbid an implication or inference
which ordinarily might be legitimate, and so limit
the scope of a given class. The general principles
which underlie the distribution of legislative power
under a federal system such as that established by
the British North America Act, and the rules of
interpretation which have been established as
peculiarly to be borne in mind for the reconcilia-
tion of the apparently overlapping class-enumera-
tions, must be constantly referred to. here as al-
ways. But these have received separate treatment
in earlier chapters * and therefore it should suffice
here to note in order of authority the cases which
have determined what is proper '' railway '' legis-
lation, federal or provincial, as the case may be.

^' Railway " Legislation.

Most of the cases to be examined on this head
relate to federal enactments, but they would ob-
viously apply to support similar enactments by
provincial legislatures in reference to provincial
railways.

Highway Crossings: — In the latest case upon
this particular branch of our subject, the Privy

^Chap. XXVII., ante, p. 493.

*See Chaps. XXII. to XXVII., ante, pp. 448-507.

752 CANADIAN" constitution: self-government.

Council was called upon to pronounce npon the val-
idity of a certain order made by the Eailway Com-
mittee of the Privy Council of Canada directing
the City of Toronto to pay a fixed proportion of the
cost of maintaining gates and a watchman at a
point where the Canadian Pacific Eailway crossed
on the level over one of the city's streets.^ The
Eailway Act of Canada then in force provided that
the Eailway Committee might require protective
measures to be adopted at such crossings and might
order a portion of the cost of their establishment
and maintenance to be paid by ^* any person inter-
ested therein.'' In the opinion of the Privy Coun-
cil this legislation was clearly intra vires:

" The sections impugned do no more than provide rea-
sonable means for safeguarding in the common interest the
public and the railway which is committed to the exclusive
jurisdiction of the legislature which enacted them, and were
therefore intra vires. If the precautions ordered are reasonably
necessary it is obvious that they must be paid for and, in the
view of their Lordships, there is nothing ultra vires in the
ancillary power conferred by the sections on the Committee
to make an equitable adjustment of the expenses among the
persons interested."

The application for the protective measures
was made, it should be noted, by the city and their
Lordships held that it was a ^* person interested."
The contest, indeed, in the Courts below had been
^ largely upon this latter point, which raised ques-
tions as to the position of provincial ^^ municipal
institutions," which must be discussed later.^

'Toronto v. Can. Pac. Ry. (1908), A. C. 54; 77 L. J. P. C. 29.

« See post, p. 796. In earlier litigation the County and Town-
ship of York, who had not been applicants but had been repre-
sented before the Railway Committee by counsel objecting to the
Committee's jurisdiction, unsuccessfully took proceedings to ques-
tion the order so far as it imposed liability upon them : Re C. P. R.
d York (1898), 25 O. A. R. 65; (1896) 27 O. R. 559. Burton,

' KAILWAYS. 755

The same sections of the Eailway Act, it should
perhaps be noted, had been before the Supreme
Court of Canada two years earlier and had been
unanimously pronounced intra vires, although Mr.
Justice Idington dissented from the rest of the
Court upon the question whether or not the muni-
cipality in which the crossed highway was situate
could be deemed a ^^ person interested,^' being of
opinion that it could not.'^ The Privy Council re-
fused leave to appeal from this judgment.

After the decision of the Privy Council in
Toronto v. Canadian Pacific By., the further ques-
tion came before the Supreme Court of Canada as
to the power to direct a municipality into which a
crossed highway led, but in which the actual cross-
ing was not situate, to pay a portion of the cost of
an overhead bridge at the crossing. The Board of
Railway Commissioners had held that the munici-
pality was in fact a '^ person interested '' and had
directed it to pay a certain proportion. This order

C.J.O., said: — "In all matters affecting its construction, opera-
tion, and management, including the expropriation of the lands
required, everything in fact necessary to its full and efficient
working, the legislation of the Dominion is of paramount auth-
ority, even though it interferes with property and civil rights
and trenches upon matters assigned to the provincial legislature
by s. 92 ;" but he expressed doubt as to the clauses giving power
to impose upon parties other than the railway the burden of the
cost of the structures, etc., deemed necessary. Of the clauses in
question. Osier, J.A., said: — "As provisions relating to the safety
of the public in connection with the management of a great Do-
minion undertaking they would appear to be eminently germane,.
If not absolutely necessary, to legislation on such a subject." See
also G. T. R. V. Ham. Rad. Elec. Ry. (1897), 29 O. R. 143, per
Street, J.: G. T. R. v. Toronto (1900), 32 O. R. 120, per Mere-
dith, J. In the former case Street, J., held that an order of the
Railway (Committee allowing defendant company to cross the
G. T. R. at grade was valid though contrary to the provisions of
the defendant company's provincial Act of incorporation.
^Toronto v. Grand Trunk Ry. (1906), 37 S. C. R. 232.

CAN. CON. — 48

754 CANADIAN constitution: self-government.

was upheld by the Supreme Court, and the Privy
Council afterwards refused leave to appeal.^

And reference may conveniently be made here
to the later case before the Supreme Court of Can-
ada ^ in which the above decisions were further
considered, and in which the majority of the Court
upheld an order of the Board of Eailway Commis-
sioners for Canada directing the appellants, a tram-
way company provincially incorporated, to pay a
portion of the cost of certain overhead bridges or
viaducts over a federal railway to be constructed
along certain streets in Vancouver in lieu of the
previous level crossings. The tramway line had
running rights along these streets under agree-
ments with the city. The matter had been brought
before the Board by the city. It was the opinion
of the majority of the Supreme Court that the tram-
way company was a ^^ person interested " and, fur-
ther, that the parliament of Canada could validly
impose liability upon such a company under such
circumstances. Mr. Justice Duff, with whom Mr.
Justice Brodeur concurred, dissented for reasons
based largely upon the decision of the Privy Coun-
cil in the Through Traffic Case,^"^ namely, that the
imposition of liability under such circumstances
upon a provincial undertaking was not legislation
necessarily incidental to legislation in relation to
the federal railway. The Privy Council, however,
reversed the decision of the Supreme Court of Can-
ada, but only on the ground that the Railway Act
did not, upon its true interpretation, warrant any
such order as the Board of Railway Commissioners
had pronounced.^ The constitutional point was

* County of Carleton v. Ottawa (1909), 41 S. C. R. 553. See
also, to the same effect, Re Grand Trunk Ry. & Kingston (1903),
8 Exch. Ct. R. 349 (Burbidge, J.)

»B. C. Elec. Ry. v. Yancouver, Y., & E. Ry., 48 S. C. R. 98.

"See post, p. 768.

^ (1914), A. C. 1067; 83 L. J. P. C. 374.

RAILWAYS. . 755.

therefore not discussed though the reasons given
in Mr. Justice Duff's judgment were characterized
as ** weighty. '^

Relations with Employees : — A provision in the
Railway Act of Canada prohibiting any railway
company from entering into contracts with its em-
ployees by which the latter should agree to relieve
the company from liability to pay compensation in
case of accidents resulting in injury to such em-
ployees was held intra vires by the Privy Council"
for reasons thus stated:

" Inasmuch as these railway corporations are the mere
creatures of the Dominion legislature^which is admitted —
it cannot be considered out of the way that the parliament
which calls them into existence should prescribe the terms
which were to regulate the relation of the employers to the
corporation. It is true that in so doing it does touch what
may be described as the civil rights of those employees. But
this is inevitable and indeed seems much less violent in such
a case where the rights, such as they are, are, so to speak, all
intra familiam, than in the numerous cases which may be
figured where the civil rights of outsiders may be affected.
As examples may be cited provisions relating to the expro-
priation of land, conditions to be read into contracts of car-
riage, and alterations upon the common law of carriers."

The use of the colloquial phrase '' not out of
the way '' serves to indicate the wide discretion
parliament has in legislating as to railways.

Contracts of Carriage: — In reference to con-
tracts of carriage, incidentally mentioned in the
above extract, there is a statement in an early case
in the Supreme Court of Canada ^ as follows :

"The contracts to convey passengers and goods on the
railways under Dominion control, for instance, the contract

^ Grand Trunk Ry. v. Atty.-Gen. for Canada (1907), A. C. 65;
76 L. J. P. C. 23; affirming 36 S. C. R. 136.

" Parsons' Case, 4 S. C. R. at p. 307, per Taschereau, J.

756 CANADIAN CONSTITUTION": SELF-GOVERNMENT.

made by the sender of a message with a telegraph company,
the contract of sale of bank stock, are all and every one of
them, when made anywhere within the Dominion, regulated
by federal authority. ... It would 'be impossible for them
to carry on their business if each province could impose
upon them and their contracts different conditions and re-
strictions. A Dominion charter would be absolutely useless
to them if the constitution granted to each province the right
to regulate their business.'^

While there is confusion here between the
powers conferred by incorporation and the powers
under the exceptions specified in class No. 10 of s.
92,* no doubt has been cast upon the main proposi-
tion; but of course provincial laws as to such con-
tracts would govern in the absence of express fed-
eral legislation.

Organization of Company: — The clause in the
Railway Act which renders any person holding of-
fice in a federal railway company or interested in
any contract with it ineligible as a director of the
company was upheld by the Supreme Court of
Canada ^^ for the reasons given in the Court ap-
pealed from," namely, that —

" The capacity or incapacity of directors is a matter essen-
tially connected with the internal economy of a railway com-
pany.''« '

And there would seem to be no doubt that the
Act of incorporation of a railway company may
provide as parliament wills for the company's form
of organization.®

Limitation of Actions: — And the clause limiting
the time within which an action may be brought

* See ante, p. 743 et seq.

^Macdonald v. Riordan (1899), 30 S. C. R. 619; affirming 8
Que. Q. B. 555.

" See post, p. 760.

RAILWAYS. 757

against a railway company for injury sustained
'' by reason of the railway '' or damage suffered
through the construction or operation of it has
been upheld by the Supreme Court of New Bruns-
wick/ and the Full Court in British Columbia.'
The Court of Appeal for Ontario divided evenly
upon the question.® In the New Brunswick case
the defendant company was originally incorpor-
ated by a pre-Confederation Act which provided
for the fencing of the line. After Confederation,
the railway was declared to be for the general ad-
vantage of Canada with the provision that the
Dominion Railway Act should govern it so far as
applicable and not inconsistent with the several
Acts of the company. The provincial Act was held
to govern as to fencing ; the Dominion Act as to the
time within which action should be brought.^®

In the British Columbia case the action was one
claiming damages for injury to the plaintiff's or-
chards caused by fire from the railway company's
engines. In the Ontario case Hagarty, C.J.O., and
Osier, J.A., upheld the enactment as being an al-
most essential part of railway legislation, while
Burton and Maclennan, JJ.A., considered it an un-
necessary interference with '^ property and civil
rights in the province." The injury complained
of was trespass to timber in connection with the
construction and operation of the road.

'' Levesque v. New Brunswick Ry. (1899), 29 N. B. 588.

'Northern Counties v. Can. Pac. Ry. (1907), 13 B. C. 130.

*McArthur v. Northern & P. J. Ry. (1890), 17 Ont App. 86.

"King, J., expressed doubt as to the clause allowing the com-
pany to plead the general issue, saying: — " I have not been con-
vinced thus far of the power of the Dominion parliament to
legislate as to pleadings in the Courts of civil jurisdiction estab-
lished by provincial laws ;" but held it unnecessary to decide the
point, leave to amend having been granted. See also Toronto v.
Bell Tel. Co. noted ante, p. 747, and St. Joseph v. Que. Cent. Ry.,
11 Ont. L. R. 193, as to the abrogation of provincial Acts by the
exercise of the power conferred by exception (c).

758 CAN-ADiAN" constitution: self-government.

There has been some difference of opinion as
to the scope of the actual legislation upon this sub-
ject which from time to time has found a place in
the Eailway Act of Canada ;^ but in none of the cases
is the constitutional authority of the parliament to
legislate as it will on the subject been seriously
questioned. In the absence of such legislation, pro-
vincial law governs. In a recent case in Manitoba
the Court of Appeal for that province held, upon a
full review of the authorities, that the clause in the
Railway Act of Canada (sec. 306) which limits to
one year the right to bring an action for damages
suffered ^' by reason of the construction and oper-
ation of the railway,'' did not cover the case of a
workman injured through the fall of a scaffold used
in the erection of an ice-house for the company.^ In
the opinion of the Court, the section applied only
to actions based on some specific provision in the
Eailway Act itself and not to common law rights
of action or rights based on general provincial leg-
islation as to the relation of master and servant.
And in a very recent case the Privy Council held
that a similar provision in the special Act of a pro-
vincial railway limiting the time to six months did
not operate to alter the general law as enacted in
Lord Campbell's Act or, rather, in its provincial
counterpart, namely, a one year limitation.^

The section of the Railway Act which gives to
any person injured through the failure of a railway
company to observe the provisions of the Act a
right of action *^ for the full amount of damages
sustained " was held by the Court of Appeal for
Ontario to be a valid enactment and to override a
provision in a provincial Act which placed a limit

^ See Can. Northern Ry. v. RoUnson, 43 S. C. R. 387.
^Sutherland v. Can. Northern Ry. (1911), 21 Man. L. R. 27.
See further as to provincial law, post, p. 759 et seq.

'B. C. Elec. Ry. v. Gentile (1914), A. C. 1034; 83 L. J. P. C. 353.

RAILWAYS. 759

upon the amount recoverable by an employee un-
der such circumstances/

Federal Railways and Provincial Laws.

Dominion legislation in reference to federal
railways is, of course, of paramount authority and
may interfere with and modify or supersede pro-
vincial legislation. Provincial legislation strictly-
relating to such works and undertakings is incom-
petent; but in the absence of Dominion legislation
upon what may be deemed ancillary topics provin-
cial legislation in reference thereto would have
operation.^

The line of demarcation between Dominion and
provincial powers in reference to federal railways
is indicated in two early decisions of the Privy
Council.^ In the later of the two cases it was held
that a provincial legislature has no power to order
any particular work, in that case fencing, in con-
nection with the construction of federal railways,
and that it cannot indirectly enforce such construc-
tion work by a provision that the company shall be
liable in damages to any one injuriously affected
by its absence. The earlier decision is thus refer-
red to:

" The line seems to have been drawn with sufficient pre-
cision in the case of the Canadian Pacific By. v. Notre Dame
de Bcmsecours, where it was decided that, although any direc-
tion of the provincial legislature to create new works on the
railway and make a new drain and to alter its construction
would be beyond the jurisdiction of the provincial legislature,
the railway company were not exempted from the municipal
state of the law as it then existed, that all land owners,

*Curran v. Grand Trunk Ry. (1898), 25 Ont. App. 407.
"The general principle is discussed, ante, p. 493 et seq.
* Can. Pac. Ry. v. Notre Dame de Bonsecours (1889), A. C. 367;
68 L. J. P. C. 54; and Madden v. Nelson d F. S. Ry., il. 626, 148.-

760 CANADIAN constitution: self-government.

including the railway company, should clean out their ditches
so as to prevent a nuisance."

The line is thus drawn in the earlier case:

" The British North America Act, whilst it gives the
legislative control of the appellants' railway qua railway to
the parliament of Canada, does not declare that the railway
shall cease to be part of the provinces in which it is situated
or that it shall in other respects be exempted from the juris-
diction of the provincial legislatures. Accordingly the par-
liament of Canada has, in the opinion of their Lordships, ex-
clusive right to prescribe regulations for the construction, '
repair, and alteration of the railway and for its management,
and to dictate the constitution and powers of the company ;^
but it is, inter alia, reserved to the provincial parliament to ^
impose direct taxation upon those portions of it which are
within the province in order to the raising of a revenue for
provincial purposes. It was obviously in the contemplation
of the Act of 1867 that the ' railway legislation,' strictly so
called, applicable to those lines which were placed under its
charge should belong to the Dominion parliament. It there-
fore appears to their Lordships that any attempt by the
legislature of Quebec to regulate by enactment, whether de-
scribed as municipal or not, the structure of a ditch forming
part of the appellant company's authorized works would be ,
legislation in excess of its power. If, on the other hand,
the enactment had no reference to the structure of the ditch,
but provided that in the event of its becoming choked with
silt or rubbish so as to cause overflow and injury to other
property in the parish it should be thoroughly cleaned oat
by the appellant company, then the enactment would, in their
Lordships' opinion, be a piece of municipal legislation com-
petent to the legislature of Quebec."^

In a number of other cases provincial legisla-
tion has been held operative in respect to federal
railways. For example:

' Compare with, this the language of Burton, C.J.O., in Re Can.
Pac. Ry. V. York, 25 Ont. App. 65, quoted in note on p. 752, ante.

"Approved of in the latest case before the Privy Council, Re
Alberta Ry. Act. See post p. 766.

RAILWAYS. 761

Master and Servamt : — Those parts of provincial
'' employers' liability '' and ^' workmen's compen-
sation '' Acts which do not touch the structural ar-
rangement of a railway are applicable alike to fed-
eral and provincial roads. In 1897, the earlier
authorities were thus summed up by Osier, J.A. : ^

" In Monhhouse v. Grand Trunk Ry.,^^ it was held that
the provisions of the Eailway Accidents Act (Ont.) as to
packing and filling frogs, guard rails, and wing rails, applied
to those railway companies only which were within the juris-
diction of the provincial legislature and not to Dominion
railway companies. The corresponding enactments of th'e
Workmen's Compensation for Injuries Act (Ont.) must also,
in my opinion, be confined in their application to the former
class of railway companies and for the same reason, namely,
that they relate to the construction or arrangement of the
railway track itself. This is consistent with our decision in
the case of Rowlands v. Can. Southern Ry., 30th June, 1889,
approved in C. S. R. v. Jackson,^ where it was held that rail-
way companies of both classes, just as other corporations or
individuals within the province, were subject to other provi-
sions of the Workmen's Compensation for Injuries Act deal-
ing with the general law of master and servant and giving
their servants a right of action against them under certain
circumstances for injuries arising from the negligence of
fellow servants."

In Can. Southern Ry. v. Jackson, referred to in
the above extract, Mr. Justice Patterson says of the
clauses there in question:

" It is not legislation respecting such local works and
undertakings as are excepted from the legislative jurisdic-
tion of the province by article 10 of s. 92 of the British ]Nrorth
America 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,

* Washington v. Grand Trunk, Ry., 24 Ont. App. 183.
^0 8 O. A. R. 637.
^ 17 S. C. R. 316.

762 CAN'ADi^N constitution: self-government.

and the measure is strictly of the same class as Lord Camp-
bell's Act, which, as adopted by provincial legislation, has
been applied without question to all our railways."

But there is no doubt of the power of the par-
liament of Canada to legislate fully as to the rela-
tions, contractual and otherwise, which are to ex-
ist between any federal railway or other federal
work or undertaking and its employees. That is
definitely established by the Contracting -out Case,^
and such federal legislation would override all in-
consistent provincial law.^ Whether such legisla-
tion was in extension or curtailment of the com-
mon-law or provincial-law rights of the workmen
would not touch the question of legislative jurisdic-
tion. Whether a provincial Act touching the law
of master and servant could, in the absence of Dom-
inion legislation, deal specially by way of exception
or otherwise with the relation in that regard be-
tween a federal railway and its employees may be
questioned; such special provision would, it is con-
ceived, be really legislation as to the federal rail-
way.

Provincial Process to Enforce Judgments: — A
provincial statute providing for sequestration pro-
ceedings against railways in certain cases was up-
held as applicable to a federal railway by the Que-
bec Court of Queen's Bench upon the ground that
the Act was one relating to procedure to enforce a
judicial sale/ It should be noticed, however, that
there is apparently a difference between the statu-
tory jurisprudence of Quebec and that of Ontario
as to the sale of a railway under execution or by

'Ante, p. 755.

» See Curran v. Grand Trunk Ry., 25 Ont. App. 407, referred to
ante, p. 759.

''Baie des Chaleurs Ry. v. Nantel (1896), Que. L. R. 9 S. C.
47; 5 Q. B. 65, Hall and Wurtele, JJ., dissenting.

KAILWAYS. 763

mortgagees. The policy underlying railway legis-
lation in Great Britain forbids the transfer of such
a quasi-public franchise to persons other than the
company authorized by parliament to make use of
it, the reason just suggested being thus elaborated
by Lord Cairns : '

"When parliament, acting for the public interest, auth-
orizes the construction and maintenance of a railway both as
a highway for the public and as a road on which the company
may themselves become carriers of passengers and goods, it
confers powers and imposes duties and responsibilities of the
largest and most important kind, and it confers them upon
the company which parliament has before it and upon no
other body of persons. These powers must be executed and
these duties discharged by the company. They cannot be
delegated or transferred."

The result was that in England anyone having
a judgment against, or holding a mortgage deben-
ture of, a railway company could only procure the
appointment of a receiver of the profits of the un-
dertaking, and was not entitled to have the rail-
way or the lands or other capital property of the
company sold for payment of its debts. The same
view was taken in Ontario as to the policy of rail-
way legislation in that province.^ But in Quebec
it was laid down as settled law in 1888 that under
the legislation of that province a railway could be
seized and sold to satisfy the debts of the company ;
not indeed piecemeal but as an integer J And this
was taken by the Privy Council to be recognized by
federal enactment which provided that where a
federal road is sold under lawful proceedings, a

** Gardner v. London, C. & D. Ry., L. R. 2 Ch. 201 ; 36 L. J. Ch.
323.

'Peto V. Welland Ry. (1862), 9 Grant 455; and the Privy Coun-
cil in 1905 saw no reason to doubt the correctness of this view
of the law in Ontario ; Central Ontario Ry. v. Trusts d Guarantee
Co. (1905), A. C. 576; 74 L. J. P. C. 116.

"^ Red-field v. Wickham, 13 App. Cas. 467; 57 L. J. P. C. 94.

764 CANADIAN constitution: self-government.

permit may issue to the buyer to operate the rail-
way until a company can be incorporated to take
it over. As to provincial railways in Ontario the
position is otherwise in the absence of any altera-
tion in the statute law of that province ; ^ in all the
provinces indeed the position of provincial rail-
ways in this regard must depend upon provincial
legislation. And the same is, of course, true as to
federal railways ; their position in this regard de-
pends upon the Railway Act.

Epoamples of Ineffectual Provincial Legislation,

On the other hand, provincial legislation has
been held either inapplicable to federal railways or
an encroachment upon the Dominion field, in sev-
eral instances. For example:

Affecting Structural Condition: — The Supreme
Court of Canada, following avowedly the principle
of the Privy Council decisions, has held that pro-
vincial legislatures have no jurisdiction to make re-
gulations in respect to crossings or the structural
condition of the road bed of railways subject to
the provisions of the Eailway Act of Canada.® And
in a comparatively recent case the same tribunal
held that the ^^ Prairie Fires Ordinance " of the
North- West Territories designed to enforce the
ploughing of fire guards along the line of the Can-
adian Pacific Eailway, on its true construction ap-
plied to that road, but that, as so applied, it was
ultra vires, as legislation in relation to the com-
pany's right of way and to the equipment of its

•As to mechanics' liens, see Crawford v. Tilden, 13 Ont. L. R.
169; King v. Alford (1885), 9 Ont. R. 643 ; Breeze v. Midland Ry.
(1879), 26 Grant 225.

^ Grand Trunk Ry. v. Therrien (1900), 30 S. C. R. 485. See
also Grand Trunk Ry. v. Huard (1892), Que. R. 1 Q. B. 502.

RAILWAYS. 765

engines.'** In an earlier case the Supreme Court of
New Brunswick had held the '^ Forest Fires Act "
of that province intra vires and applicable to the
same railway ; ' but the Act was one of general ap-
plication and did not touch structural conditions.
It simply provided that any person setting out fire
for clearing purposes during certain defined sea-
sons should give notice and take certain precau-
tions.

A provincial Mechanics' Lien Act cannot oper-
ate to place a charge upon a federal railway.^

As already intimated, those parts of provincial
^' Employers' Liability '' and *' Workmen's Com-
pensation " Acts and Acts of that description
which relate to the structure and arrangement of
the railway plant and equipment cannot apply to
federal railways.^

Amalgamation: — And where a railway incorpor-
ated under a provincial Act was declared to be for
the general advantage of Canada, thus becoming a
federal road, a subsequent provincial Act amalga-
mating the company at its own request with an-
other (provincial) railway company was held ultra
vires by the Privy Council.*

Federal Railways and Provincial Railway Law.

Crossings : — It was held in an early case in On-
tario that the provision in the then Eailway Act
of Canada that no provincial railway should cross
a federal line without the approval of the Eailway

^''Can. Pac. Ry. v. R. (1907), 39 S. C. R. 476.

"■Grant v. Can. Pac. Ry. (1904), 36 N. B. 528.

"" Crawford v. Tilden (1907), 14 Ont. L. R. 572, C. A.; 13 O. L.
R." 169; Larsen v. Nelson & F. 8. Ry. (1895), 4 B. C. 151.

^See ante, p. 761.

*Bourgoin v. Montreal, 0. d 0. Ry., 5 App. Cas. 381; 49 L. J.
P. C. 68.

766 CANADIAN constitution: self-government.

Committee of the Privy Council was intra vires,
the consent of the provincial Minister of Public
Works under the Provincial Act being, of course,
also necessary.^ And the same view was taken in
a later case in Manitoba.^

The right of a provincial legislature to enact
provisions looking to the compulsory crossing of
federal railways by provincial lines has been re-
cently considered by the Privy Council. The Eail-
way Act of Alberta contained a clause permitting
a provincial railway to take lands belonging to any
other railway and to operate over its right of way,
subject to the approval of the Lieutenant-Governor
in Council. In 1912 the Act was amended so as to
make it clear that the words ^^ any other railway ''
would cover a federal railway, so long as the tak-
ing and using would not unreasonably interfere
with the construction and operation of the crossed
line. In the opinion of the Privy Council, the Act
before its amendment could apply only to the cross-
ing of one provincial line by another provincial
line and was intra vires. The amendment was
held to be clearly beyond the powers of a provin-
cial legislature as being —

"unquestionably legislation as to the physical construc-
tion and use of the tracks and buildings of a Dominion rail-
way and that of a serious and far-reaching character.'"'

And, in the opinion of the Board, the striking
out of the word '' unreasonably '' would not mend
matters.

= Credit Valley Ry. v. Great Western Ry. (1878), 25 Grant, 507,
per Proudfoot, V.C.

"Can. Pac. Ry. v. Northern Pac. d Man. Ry. (1888), 5 Man. L.
R. 313, per Killam, J. See also Re Portage Extension of Red R.
Valley Ry., Cassell's Supreme Ct. Dig., 487.

' Atty.rGen. of Alberta v. Atty.-Gen. of Canada (1915), A. C.
363; 84 L. J. P. C. 58; affirming 48 S. C. R. 9.

RAILWAYS. 767

" It would still be legislation as to the physical tracks
and works of the Dominion railway and as such would be
beyond the competence of the provincial legislature. These
are matters as to which the exclusive right to legislate has
been accorded to the parliament of the Dominion so that the
provincial legislatures have no power of legislation as to them ;
and this holds good whether or not the legislation is such as
might be considered by juries or judges to be reasonable. '^

Provincial Railways and Federal Railway Law.

Through Traffic: — Federal railways and pro-
vincial railways, of course, often cross each other,
and this necessarily involves structural arrange-
ments at the point of intersection. And traffic orig-
inating on one line must often, before reaching its
ultimate destination, be transferred to and be car-
ried over another line. Moreover railways both
federal and provincial have often to cross navi-
gable waters; and in connection with their opera-
tion there is obviously room for penal enactments.
The Railway Act of Canada provides ^ that every
provincial railway crossing or connecting with a
federal railway shall, although not declared to be
for the general advantage of Canada, be subject to
those provisions of the Act which relate, (a) to the
crossing or connection of one railway by or with
another, (b) to through traffic, (c) to criminal mat-
ters, and (d) to navigable waters. There is added
a proviso that in the case of a provincial railway
owned by a province the provisions of the Act as
to through traffic are not to apply except by
consent of the province; a proviso which by
implication leaves or purports to leave provincial
government railways subject to the other provisions
mentioned in the section. The section, it will be
noticed, leaves untouched the question as to the

•R. S. C. (1906), c. 37, sec. 8.

768 CANADIAN constitution: self-government.

operation as regards provincial railways of the
general law of Canada relating to navigation and
crimes ; it is only the special provisions of the federal
Eailway Act upon these topics which are covered by
the section. In the Through Traffic Case ^ the Privy
Council held the section ultra vires so far as the en-
actment as to through traffic was concerned, with-
out any expression of opinion as to the other items.
The question before their Lordships was as to the
validity of an order made by the Board of Eailway
Commissioners under the above mentioned section
requiring a provincial railway to enter into certain
prescribed arrangements with a federal railway
fixing the rate to be charged by the former for the
carriage over its line of ^* through " traffic. So
far as the order purported to bind the federal rail-
way it was held to be valid, but as to the provincial
railway the provincial legislature in the opinion of
their Lordships had exclusive jurisdiction over it
in regard to its carriage of freight and passengers.
Federal legislation purporting to control the rates
it should charge could not be considered as in any
proper sense legislation relating to the federal rail-
way. If a public evil had grown up the only rem-
edy lay in the co-operation of the federal and pro-
vincial governments, each putting the necessary
legislative pressure upon the railway subject to its
jurisdiction.^^

But what is said in the judgment as to the em-
barrassment of dual control should not, it is con-
ceived, be pushed too far. Provincial railways and
railway companies are subject in many matters to
federal law, the execution of which is necessarily
in the hands of federal officers. The dual control
deprecated by the Privy Council is a dual control

« (1912), A. C. 333; 81 L. J. P. C. 145. See ante, p. 502.
^" See ante, p. 394.

RAILWAYS. 769

of a provincial railway as a local work and under-
taking, that is to say, in matters which, as in the
ease of federal railways, would he properly de-
scrihed as railway legislation.

And the established principle of federal para-
mountcy must be recognized here as elsewhere. An
enactment, for example, as to the construction of
bridges over navigable waters would apply to a
bridge on the line of a provincial railway although
in one aspect of the enactment it might be said to
be a law in relation to a provincial railway, and
although no doubt in the absence of any federal law
on the subject the provincial legislature could pre-
scribe the character of such bridges as well as any
others on provincial railways. And the same con-
siderations would apply to the criminal law. It
would appear indeed that the reference to the two
subjects of navigation and the criminal law in the
section above mentioned might naturally suggest a
limitation of federal jurisdiction which does not
exist, namely, to those provincial railways only
which cross or connect with federal lines.

Crossings: — And in the most recent case before
the Privy Council ^ the Board very distinctly af-
firmed the validity of that part of the section of
the Eailway Act of Canada above referred to which
dealt with the question of crossings and connec-
tions. In their Lordships' opinion the Act gives
an effective remedy against undue obstacles being
put in the way of a provincial railway which may
desire to cross a federal line, by imposing upon the
Board of Eailway Commissioners for Canada the
duty, to be exercised of course in the public inter-
est, to afford facilities for such crossings and

^Re Algeria Railway Act (1915), A. C. 363; 84 L. J. P. C. 58.
See ante, p. 766.

CAN. CON. — 49

770 CANADIAN constitution: self-government. .

giving to provincial railways a locus standi as appli-
cants therefor. As to the constitutional validity of
the enactment their Lordships say:

^^ These portions of the provincial railways are made
subject to the clauses of the Dominion railway legislation,
which deals also with the crossings of two Dominion railways,
so that the provincial railways are in such matters treated
administratively in precisely the same way as Dominion
railways themselves. The parliament of the Dominion is
entitled to legislate as to these crossings because they are
upon the right of way and track of the Dominion railway-
as to which the Dominion parliament has exclusive rights of
legislation."

Expropriation: — In a recent case before the
Supreme Court of Canada there was a marked dif-
ference of opinion as to the power of the parlia-
ment of Canada to authorize the expropriation by a
federal railway of land belonging to a provincial
railway." The Railway Act of Canada (section
176) authorizes a Dominion railway company to
take lands belonging to any other railway com-
pany, subject to the approval of the Board of Rail-
way Commissioners. It was unanimously held that
on the proper interpretation of the Act the words
* * any other railway company ' ' in the section in
question do not apply to a provincial railway
company. Had they so applied, Mr. Justice Duff
was of opinion (in which the Chief Justice concur-
red) that the enactment would be ultra vires as
establishing that dual control over provincial rail-
ways which the Privy Council had held in the
Through Traffic Case ^ unwarranted by the British
North America Act. Mr. Justice Idington was
clearly of a contrary opinion; Mr. Justice Brodeur

^Montreal Tramways Co. v. Lachine, dc, Ry. Co. (1914), 50 S.
C. R. 84.

• (1912), A. C. 333; 81 L. J. P. C. 145.

KAILWAYS. 771

thought it '' likely " that a federal railway could
take the land by expropriation proceedings under
the relevant sections of the Act; and Mr. Justice
Anglin expressed no opinion upon the point. As
to the particular order of the Board of Bail way
Commissioners under appeal, Mr. Justice Idington
thought it should be upheld as merely supplemen-
tary to a previous order approving conditionally
the location of the respondent's line, but the other
judges were all of the opinion that it could be
founded only on section 176, which, as already men-
tioned, the Court unanimously held inapplicable.

The recent pronouncement by the Privy Coun-
cil in the Alberta Railway Act Case * while not ex-
pressly dealing with the point, would seem to af-
firm the constitutional authority of the parliament
of Canada to authorize the taking of the lands of a
provincial railway company by a federal railway
for crossing purposes or otherwise, the exercise of
the right being in fact subject to the controlling
jurisdiction of the Board of Railway Commissioners
to be exercised apparently upon the application of
the federal railway for the Board's approval of the
location plans. Upon that application the provin-
cial line would be entitled to urge all proper safe-
guarding of its interests. But federal paramountcy
must, it is conceived, be recognized.

Exterritorial Connections.

A provincial legislature was held by the New
Brunswick Supreme Court to be entitled to legis-
late with respect to a provincial railway running
only tox the boundaries of the province, such rail-
way being a local work and undertaking within
section 92, No. 10, although, as appeared by the

*Ante, p. 769.

772 CANADIAN constitution: self-government.

facts of that case, legislation had been procured
in the State of Maine incorporating an American
company to build a railway in that State to con-
nect with the provincial railway in question.^

A provincial Act authorizing a municipality to
grant a bonus to a railway built to connect with
one beyond the province, was held by the Privy
Council ^ to fall within No. 2 of section 92,^ or un-
der No. 16.^ It was held not to be touched by No.
10 at all. A question, however, was raised in that
case which the committee abstained from deciding,
namely: Does class a cover a railway extending
from one province, not into another, but into a for-
eign country? The limitation of class h to steam-
ship lines was urged in support of the view that a
provincial legislature has power to enact laws as
to railways extending from the province into a for-
eign country. A provincial legislature, it is con-
ceived, has no such power, nor indeed has the Dom-
inion parliament so far as the operation of the
road without Canada is concerned. So far as the
incorporation of any such company is concerned
No. 11 of section 92 would prevent action by a pro-
vincial legislature, as the object would not be pro-
vincial.^

'^ European d N. A. Ry. v. Thomas, 1 Pug. 42 ; 2 Cart. 439. See
also Re Windsor & Annapolis Ry., 4 R. & G. 322; 3 Cart. 399.

^Dow V. Black, L. R. 6 P. C. 272; 44 L. J. P. C. 52; 1 Cart. 95.

^ " Direct taxation within the province, etc."

' " Generally all matters of a merely local or private nature in
the province."

"> See ante, p. 731.

CHAPTER XXXVII.

Public Services.

The exclusive legislative authority of the par-
liament of Canada extends to all matters falling
within the following classes of subjects as enumer-
ated in section 91 of the British North America Act,
namely :

5. Postal Service.

6. The census and statistics.

7. Militia, military and naval service, and defence.
9. Beacons, buoys, lighthouses, and Sable Island.

11. Quarantine, and the establishment and maintenance
of marine hospitals.

12. Sea coast and inland fisheries.
14. Currency and coinage.

28. The establishment, maintenance and management of
penitentiaries.

There is concurrent federal and provincial jur-
isdiction under section 95 in relation to —

Agriculture and Immigration;

with the proviso that provincial legislation is to
have effect as long and as far only as it is not re-
pugnant to any Act of the parliament of Canada.
The provincial legislatures have exclusive juris-
diction under section 92 over matters relating to —

6. The establishment, maintenance and management of
public and reformatory prisons in and for the province.

7. The establishment, maintenance, and management of
hospitals, asylums, charities, and eleemosynary institutions
in and for the province, other than marine hospitals.

And by section 93 the subject of

774 CANADIAN constitution: self-government.

Education

is placed in the hands of the provinces with certain
restrictions in the matter of separate schools for
religious minorities which will call for discussion
in a later chapter.

It is obvious that legislation upon some of the
above topics results in the creation of private
rights' and the imposition of obligations both to-
ward the public and toward individuals. And
some of the other class-enumerations of sections
91 and 92 cover legislation which is more or less in
the nature of public service, such as navigation and
shipping, the criminal law, the administration of
justice, municipal institutions, and others. These,
however, have received separate treatment in other
chapters, and those of the above classes which pre-
sent aspects touching rights and obligations as be-
tween one citizen and his fellows have in that as-
pect received sufficient incidental treatment
throughout other chapters.

There is not much room for diiferences of
opinion as to the classes dealt with in this chapter
so far as they relate to public service simply. At
all events there are very few cases in which their
scope in this aspect of them has been in question
before the Courts. Not much, therefore, need be
said about them here.

The Census and Statistics,

There has been no expression of judicial opinion
as to the scope of this class, although a number of
questions suggest themselves. It must be construed
so as to exclude provincial legislation upon what-
ever matters are properly included in it; and any
construction other than '^ the Census, and Statis-
tics in relation thereto '* would land one in diffi-
culties. So construed, it has reference to the cen-
sus required to be taken every ten years by section

PUBLIC SERVICES. 7*^5

8 of the British North America 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 Eesolutions ^ the
words '^ and statistics '' do not appear. No wider
interpretation is needed to enable the Dominion
parliament to institute inquiries and compile statis-
tics as to any matters upon which information is
desired in order to intelligent legislation upon the
various subjects committed to its legislative care.
Acts authorizing such proceedings would be laws
'^ relating to '^ such subjects. Any wider interpre-
tation would have the absurd effect of condemning
provincial legislatures to legislate in the dark upon
many very important matters. ■

'^ Militia, Military and Naval Service, and De-
fence.'^

This is perhaps the matter in which, above all
others, the Imperial authorities continue to exer-
cise supervision over colonial legislation, and in
respect to which, also, the British parliament
habitually passes Acts of express colonial applica-
tion. This matter, however, has received attention
in a previous chapter,^ and, as no serious question
of any competing jurisdiction in Canada has arisen
further treatment seems uncalled for.* From the

^No. 29 (12). See appendix.

2 In this connection reference should be had to the recent case,
Atty.-Gen. of Australia v. Colonial Sugar Refining Co. (1914), A.
C. 237; 83 L. J. P. C. 154, in which the powers of the Common-
wealth of Australia to gather information compulsorily and un-
der oath were held to be somewhat limited. See also Re Com-
panies, 48 S. C. R. at p. 384, per Idington, J.

' Chapter XI., ante, p. 201, et seq.

* The subjection of militiamen to the ordinary law of the land
is touched upon in R. v. Hill (1907), 15 O. L. R. 406 ; and see also
Re Harris (1909), 19 Man. L. R. 117 (C.A.) as to military law.
As to the effect of war upon the work of the Courts, see Marais
V. Officer Commanding (1902), A. C. 109; 71 L. J. P. C. 42.

776 CANADIAN constitution: self-government.

colonial point of view, the position is clearly this :
so far as Imperial legislation npon this subject is
made applicable to the colonies generally, or to
Canada in particular, any Canadian legislation re-
pugnant thereto, in whole or in part, must be held
to be void and inoperative to the extent of such re-
pugnancy, but not otherwise.^ In other words, in
so far as Canadian legislation is supplementary to
and not inconsistent with Imperial legislation
upon the subject, section 91, No. 7, distinctly af-
firms the authority of the Dominion parliament, as
distinguished from provincial assemblies, to pass
such legislation.

Agriculture and Immigration.

The subject of immigration has already received
attention.^ ^' Agriculture " has been given a very
wide interpretation, covering all matters connected
with the farm, such as the care and improvement
of stock, horsebreeding, dairying, and kindred mat-
ters. As properly falling under this head the fed-
eral Animals Contagious Diseases Act has been
upheld."^ And a provincial Act which provided a
penalty for fraud in entering horses in a wrong
class at race meetings of agricultural associations
was considered as competent legislation under this
head, there being no federal legislation to which it
was repugnant.^

' Colonial Laws Validity Act, 1865. See ante, p. 57.

« Ante,, p. 681 et seq.

''Brooks V. Moore (1907), 13 B. C. 91.

^R. V. Horning (1904), 8 Ont. L. R. 9. See also R. v. Wason,
17 Ont. App. 221, and R. v. Stone, 23 Ont. R. 46 referred to ante,
p. 567. See also R. v. Garvin, 13 B. C. 331; 14 B. C. 260.

CHAPTER XXXVIII.

Education.

Section 93 of the British North America Act,
1867, provided as follows:

93. In and for each province the legislature may exclu-
sively make laws in relation to education, subject and accord-
ing to the following provisions : —

(1) Nothing in any such law shall prejudicially affect ^~\
any right or privilege with respect to denominational I
schools which any class of persons have by law in the j
province at the union; 1

(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 subjects shall be and the
same are hereby extended to the dissentient schools
of the Queen's Protestant and Eoman Catholic sub-
jects in Quebec;

(3) Where in any province a system of separate or dis-^
sentient schools exists by law at the union, or is y
thereafter established by the legislature of the pro- \
vince, an appeal shall lie to the Governor-General in \
Council from any Act or decision of any provincial
authority affecting any right or privilege of the
Protestant or Eoman Catholic minority of the
Queen's subjects in relation to education.

(4) In case any such provincial law as from time to time
seems to the Governor-General in Council requisite
for the due execution of the provisions of this sec-
tion 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 pro-
vincial authority in that behalf, then and in every
such case, and as far only as the circumstances of
each case require, the parliament of Canada may make

778 CANADIAN CONSTITUTION : SELF-GOVERNMENT.

remedial laws for the due execution of the provisions
of this section and of any decision of the Governor-
General in Council under this section.

Upon the admission of Prince Edward Island
and British Columbia, this section as it stands was,
with other parts of the British North America Act,
made applicable to those provinces as if they had
been originally parties to the Union. As will ap-
pear, it was somewhat modified in Manitoba's
case, and, afterwards, in the recently formed pro-
vinces of Saskatchewan and Alberta. The North-
West Territories are, of course, in a restricted
position with regard to this question owing to the
legislative supremacy exercised over these terri-
tories by the Dominion parliament. Although,
therefore, it is thought advisable to treat the whole
subject in one 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 Eoman Catholic separate school system
established by law.^ Immediately prior to Con-
federation 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
that occupied by the Roman Catholic minority of
the Upper Province, but no Canadian legislation
took place upon the subject, the end aimed at being

^ 26 Vic. c. 5 : " An Act to restore to Roman Catholics in Upper
Canada certain rights in respect to separate schools." There was
also upon the statute book of (old) Canada an Act conferring
rights and privileges upon Protestants and " colored people " in
regard to the establishment of separate schools. The separate
schools of the " colored people," not being denominational, are
not protected by the British Korth America Act.

EDUCATION. 779

secured by sub-section 2 of section 93. That sub-
section is applicable to the province of Quebec only
and it puts the two provinces of Quebec and On-
tario upon so much the same footing that these
two provinces may be dealt with together.

Prior to Confederation the position of the Eo-
man Catholic minority in Upper Canada, under the
Roman Catholic Separate School Act, had been
considered in the Courts of that part of the pro-
vince, and the view taken by those Courts is thus
summed up by Hagarty, C.J. :^

"As Burns, J., remarked in Be Ridsdale & Brush :^ ' The
legislature intended the provisions " creating the common
school system, and for working and carrying that out, were
to be the rule, and that all the provisions for the separate
schools were only exceptions to the rule, and carved out of ii
for the convenience of such separatists as availed themselves
of the provisions in their favour;' and my brother Gwynne,
commenting on these words in Harding v. Mayville,^ says
that ' it lies on the plaintiff claiming exemption as a separat-
ist to aver and prove all those exceptional matters, taking
him out of the general rule.' "

These exceptional and special rights — privi-
leges enjoyed by religious minorities in the differ-
ent districts of the provinces over and above those
rights enjoyed at common law or under statutory
enactment by the inhabitants of the province at
large — are the rights and privileges protected by
this 93rd section. Having in view what is laid
down by the Privy Council,^ they may be shortly
stated as follows :

Tree v. McHugh, 24 U. C. C. P. at p. 20.

» 22 U. C. Q. B. 124.

* 21 U. C. C. P. at p. 511.

'Winnipeg v. Barrett (1892), A. C. 445; 61 L. J. P. C. 58;
BropTiy v. Atty.-Gen. {Man.), (1895), A. C. 202; 64 L. J. P. C. 70.
In this connection the recent expressions of opinion by the judges
of the Supreme Court of Canada in the Regina School Case
(1915), 50 S. C. R. 589, should be taken into account.

780 CANADIAN" constitution: self-government.

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 their supporters;

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 separ-
ate schools the religious tenets of their denomina-
tion;

to which should perhaps be added the right or pri-
vilege which any member of any denomination has
to choose which he will support, the separate
schools of his denomination or the public schools of
the province.^ Any legislation of a compulsory
character would, it is thought, be unconstitutional
as prejudicially affecting the right or privilege
which such persons had by law at the date of Con-
federation.

It has been recently held that the use of the
French language in schools in Upper Canada at-
tended by French-Canadian children, whether those
schools were public schools or denominational (sep-
arate) schools, was not a right enjoyed by law at
the date of the union, and that therefore the pro-
vincial legislature of Ontario has the fullest discre-
tion as to how far the French language is to be now
used or taught in the schools of that province.^

Provincial legislatures have full power of
legislation in relation to education and edu-
cational systems in the province, including
the separate school system therein, so long
as such legislation does not offend against
the provisions of sub-section 1, that is to say,

'As to the position of teachers, see Christian Brothers v. Min-
ister of Education (1907), A. C. 69; 76 L. J. P. C. 22.

'' Mackell v. Ottawa Separate School Board (1914), 32 Ont. L.
R. 245 (Lennox, J.).

EDUCATION. 781

does not prejudicially affect any right or pri-
vilege thereby protected.^ Subsections 3 and 4 are
indicative of the expectations of the framers of the
British North America Act that there would be
legislation by provincial legislatures in relation to
denominational schools. The validity of such legis-
lation is, in a sense, recognized by the deliverance
by the Divisional Court of the Chancery Division
in Ontario of an opinion on certain questions
submitted to that tribunal as to the effect to
be given to certain clauses of the Assessment
Act of Ontario working amendment of the sep-
arate school law as it existed at the union by
making more elaborate provision for classifying
ratepayers into two classes, supporters of public,
and supporters of separate, schools; although no
discussion seems to have taken place, and no ex-
pression of opinion is to be found in the judgment,
upon this constitutional question.^ The matter
however appears so clearly upon the construction
of the statute that no doubt has ever been expressed
as to the correctness of the views enunciated by
Vice-Chancellor Blake. As put by him in the case
cited :

" It would be a most unfortunate result of this enact-
ment if it were found that it precluded the remedying de-
fects in, or improving the machinery for, working out the
separate school system. . . . It is therefore clear that the
provincial legislature has some power to legislate as to de-
nominational 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

' Board v. Grainger, 25 Grant. 570 ; per Blake, V.C.
^Re R. C. Sep. Schools, 18 O. R. 606; see also Trustees of R. G.
Sep. School V. Arthur, 21 O. R. 60.

782 CANADIAN constitution: self-government.

many years' experience, is found to be the best and simplest
we have yet had."

Question for the Courts : — It has been contended
that owing to the appeal provided for by sub-sec-
tion 3, and the power given to the parliament of
Canada to pass remedial laws in certain cases un-
der sub-section 4, the question of the validity of
separate school legislation has been entirely with-
drawn from the Courts, but this view has been de-
cisively negatived by the Privy Council: —

" At the commencement of the argument a doubt was sug-
gested as to the competency of the present appeal in conse-
quence of the so-called appeal to the Governor-General in
Council provided by the Act. But their Lordships are satis-
fied that the provisions of sub-sections 2 and 3 do not operate
to withdraw 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 provin-
cial legislation regarding denominational schools
does, or does not, prejudicially affect any right or
privilege with respect to denominational schools
which any class of persons had by law in the pro-
v^inces at the Union.

Nova Scotia, New Brunswick, Prince Edward
Island, and British Columbia,

Only in the event of the future establishment of
a system of separate or dissentient schools by any
one of these provinces can their full autonomy in
relation to educational matters be interfered with

^' Bu^r^ttls-Cuse (1892), A. C. 445; 61 L. J. P. C. 58: re-affirmed
in Brophy's Case (1895), A. C. 202 ; 64 L. J. P. C. 70. Su'b-sections
2 and 3 of the Manitoba Act correspond with 3 and 4 of sec. 93 of
the British North America Act.

EDUCATION. ^ 783

by the parliament of Canada. In none of these
provinces could the claim to a ^ ^ right or privilege ' '
existing at the time of the Union be more strongly-
supported than in New Brunswick ; and, as to that
province, it has been held by the Privy Council
that no such right or privilege existed there.^

Manitoba.

This province became part of the Dominion in
1870, and by what is popularly known as the Mani-
toba Act^ the power of the provincial legislature in
reference to education is defined:

22. In and for the province, the said legislature may eif-
clusively make laws in relation to education^ subject and ac-
cording 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 ^hy law or practice m the province
at the Union : 'V

(2) An appeal shall lie to the Governor-General in
Council from any Act or decision of the Legislature 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 :

(3) In case any such provincial law, as from time to time iW)
seems to the Governor-General in Council 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 circumstances of each case
require, the Parliament of Canada may make remedial laws

''MaTier v. Portland, 2 Cart. 486 (n). The judgment, which
was delivered without calling upon the respondents, affirms the
unanimous decision of the Supreme Court of New Brunswick, in
Ex p. Renaud, 1 Pugs. 273 ; 2 Cart. 445. The judgment of Ritchie,
C.J., contains an exhaustive statement of the position of New
Brunswick in educational matters prior to 1867.

^33 Vic. c. 3, Dom., see post, p. 851. In Appendix.

784 CANADIAN constitution: self-government.

for the due execution of the provisions of this section, and of
any decision of the Governor-General in Council under this
section.

It has been held by the Privy Council that the
insertion of the words ' ^ or practice ' ' has not been
effective to place Manitoba in a different position \
upon this question from that occupied by the Mari-
time Provinces and British Columbia:

" Such being the main provisions of the Public Schools
Act, 1890, their Lordships have to determine whether that '
Act prejudicially affects any right or privilege with respect
to denominational schools which any class of persons had by
law or practice in the province at the Union. Notwithstand-
ing the Public Schools Act, 1890, Roman Catholics and
members of every other religious body in Manitoba are free
to establish schools throughout the province ; they are free to
maintain their schools by school fees or voluntary subscrip-
tions; they are free to conduct their schools according to their
own religious tenets without molestation or interference. No
child is compelled to attend a public school."^

It is, perhaps, matter of doubt whether the
rights and privileges enumerated in the above ex-
tract as existing in Manitoba, exist to the same ex-
tent in the other provinces. The doubt which sug-
gests itself is as to the power to prohibit denomin- \l/
ational schools, that is, to compel universal attend-
ance at state schools. Such a law could not be
passed in Ontario, Quebec, or Manitoba: sed qucere \
as to the other provinces.

Alberta and Saskatchewan.

Prior to the creation of these provinces in 1905
they formed part of the North West Territories
over which the parliament of Canada had and still

'Barrett's Case (1892), A. C. 445; 6± L. J. P. C. 58. See also
the statement in BrophYs Case (1895), A. C. 202; 64 L. rV. C. 70.

EDUCATION. 785

has legislative control.* A subordinate legislative
assembly was given a defined law making author-
ity' under which in 1901 ordinances were duly
passed upon the subject of education, containing
provisions designed to protect the supposed inter-
ests of denominational minorities in regard thereto.
These ordinances are now fixed constitutional pro-
visions in both of the two provinces, as appears in
the following section inserted in each of the Acts
creating those provinces:^

17. Section 93 of The British North America Act, 1867,
shall apply to the said province, with the substitution for
paragraph (1) of the said section 93, of the following para-
graph : —

",(1) Nothing in any such law shall prejudicially affect
any right or privilege with respect to separate schools which
any class of persons have at the date of the passing of this
Act, under the terms of chapters 29 and 30 of the Ordinances
of the North-West Territories, passed in the year 1901, or
with respect to religious instruction in any public or separ-
ate school as provided for in the said ordinances."

2. In the appropriation by the Legislature or distribu-
tion by the Government of the province of any moneys for
the support of schools organized and carried on in accordance
with the said chapter 29 or any Act passed in amendment
thereof, or in substitution therefor, there shall be no discrim-
ination against schools of any class described in the said
chapter 29.

3. Where the expression " by law " is employed in para-
graph 3 of the said section 93, it shall be held to mean the
law as set out in the said chapters 29 and 30, and where the
expression "at the Union ^^ is employed, in the said para-
graph 3, it shall be held to mean the date at which this Act
comes into force.

* See post, Chap. XLIV.

= R. S. C. (1886), c. 50; 55 Vict, c. 22 (Dom.). See vost.

M & 5 Edw. VII., c. 3 (Alberta); c. 42 (Saskatchewan).

CAN. CON. 50

786 CANADIAN constitution: self-government.

It is beyond the scope of this work to discuss in
detail the provisions of these ordinances."^ Stated
shortly, ^^ The School Ordinance '^ (chap. 29)
permitted the establishment of a separate school
by the minority of the ratepayers in any district,
whether Protestant or Eoman Catholic. The rate-
payers establishing such a separate school were to
pay rates for its support only. After the establish-
ment of such a separate school district, the school
was to be governed by a board which should have
the same powers and perform the same duties and
pursue the same method of government as the
boards of public school districts. ^^ The School
Assessment Ordinance " (chap. 30) made provision
for the assessment and collection of school taxes,
both for public schools and separate schools.
Amongst other provisions was one as to the taxation
for school purposes of the lands of companies, and
out of the attempted amendment of this provision by
the legislature of Saskatchewan has arisen a some-
what notable dispute, in which, however, the larger
issues involved remain still undecided owing to the
disposition of the case in the Supreme Court of
Canada.^ And in view of the marked divergence of
opinion among the judges of that tribunal, it would
seem advisable to do no more here than indicate
briefly the questions raised and the opinions ex-
pressed thereon. The provision referred to, as it
stood in the Ordinance of 1901 (chap. 30, sees. 9 and
93), was that a company might give notice requiring
any part of its land to be assessed and rated for
separate school purposes and the assessor was to
assess accordingly. It was provided, however, that
the share or portion of the land of a company which

' The material sections are printed in the appendix.

^Regina Pudlic School District v. Gratton Separate School
District, 50 S. C. R. 589 ; reversing 7 West. W. R. 7 ; 6 West. W. R.
1088.

EDUCATION. 787

might thus be rated for separate school support i
should bear the same proportion to the whole laud of j
the company in the district as the paid-up shares of 1
the Protestant or Roman Catholic shareholders, as I
the case might be, should bear to the whole paid-up ]
capital of the company. The legislation of the pro- '
vince of Saskatchewan which came into question in
the case referred to consisted in the addition of a
clause which provided that, in the event of any com-
pany failing to give the notice specified in the earlier
clause, the board of the separate school district
could require the company to give the prescribed
notice and that, in default, the company's school
taxes upon lands in the district should be divided
between the public school and the separate school.
The method of division, however, varied from that
indicated in the earlier section. The shares were to
correspond to the total assessments for public and
separate school purposes respectively in the district,
exclusive of the assessments upon corporations in
each case. A number of companies owning property
within a separate school district in Regina gave no
notice, either of their own motion or after notice
from the separate school board, and thereupon the
latter demanded payment in accordance with the
provisions of the amendment or added section. In '
opposition to this demand, the broad question as to
the constitutional validity of the provincial amend-
ment was raised. The judge of first instance and
the Full Court of Saskatchewan held unanimously
that the rights and privileges protected by section
93 of the British North America Act and the cor-
responding clauses in later Acts are those of re-
ligious minorities only; that — in the words, of
Lamont, J. —

" The power of the legislature, therefore, is absolute in
deahng with education, unless its legislation prejudicially

788 CANADIAN CONSTITUTION": SELF-GOVERNMENT.

afiects the minority, whether Protestant or Catholic, in any
school district." . -

On appeal to the Supreme Court of Canada, the
Chief Justice and Mr. Justice Anglin upheld the
validity of the provincial amendment; Mr. Justice
Idington was strongly of opinion to the contrary;
while Mr. Justice Davies and Mr. Justice Duff pro-
nounced no opinion on the constitutional question.
In the result, the appeal was allowed, the Chief
Justice and Mr. Justice Anglin dissenting. In the
Court below, Newlands, J., had taken the view that'
the original provision could apply only in the case of
companies having a divided body of shareholders,
some Protestant and some Roman Catholic, and that
the amendment was of like limited application. In
the Supreme Court of Canada, Mr. Justice Davies
and Mr. Justice Dutf agreed in this view, and as the
companies concerned were not shewn to have been
in that category, the separate school board's claim
to a share of their taxes must fail. And Mr. Justice
Idington 's view that the amendment was ultra vires
gave a majority in favour of the allowance of the
appeal.

The North-West Territories:

The parliament of Canada having power (sub-
ject 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 provincial dig-
nity, the position of affairs there is as yet em-
bryonic. After the two new provinces were carved
out of the territories in 1905, the remainder was
placed under the control of a Commissioner in
Council whose authority in this matter is thus de-
fined :^«

^"R. S. C. (1906), c. 62, sec. 10. The same clause appears in
the Yukon Territory Act: R. S. C. (1906), c. 63, sec. 14.

EDUCATION. 789

10. The Commissioner in Council, if ap.thorized to make
ordinances respecting education, shall pass all necessary ord-
inances in respect thereto; but in the laws or ordinances re-
lating to education it shall always be provided that a ma-
jority of the ratepayers of any district or portion of the
Territories, or of any less portion or subdivision 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 Protestant or Roman
Catholic, may establish separate schools therein, 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.

Appeals to the Governor-General in Council:
Remedial legislation :

The functions of the Governor-General in Coun-
cil are not of a judicial character, that is to say, it
does not properly devolve upon the Dominion
executive to consider the constitutionality of pro-
vincial enactments, or of the decision of the ** pro-
vincial authority '' (whatever that may be taken to
mean) mentioned in the sub-section. The appeal,
therefore, would seem to be limited to supervising
and suggesting alterations to provincial enact-
ments, ^^ affecting any right or privilege of the
Protestant or Roman 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 Dominion executive not being duly
executed by the provincial authorities, the provi-
sions 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 predi-
cate that in the province concerned there exists
under either pre-confederation or post-confedera-
tion law any '* right or privilege " enjoyed by the

790 CANADIAN constitution: self-government.

Protestant or Roman Catholic minority in such pro-
vince, and that the provincial legislation com-
plained of affects such right or privilege. The
word ^^ prejudicially '' does not occur in this
sub-section, and interference on the part of the
Dominion authorities can properly take place only
in connection with valid provincial legislation. Leg-
islation prejudicially affecting such right or privi-
lege is void. Legislation affecting it otherwise
than prejudicially is valid but may be unjust or
clumsy and unworkable. Such defects the parlia-
ment of Canada can remedy.^

*The whole question is exhaustively discussed in Brophy's
Case (1895), A. C. 202; 64 L. J. P. C. 70.

CHAPTER XXXIX.

Municipal Institutions.

Shortly after Confederation there was much
discussion in Canadian cases ^ as to the scope to
be allowed to provincial legislation under class No.
8 of section 92, ^ ^ municipal institutions in the pro-
vince.'' Municipal by-laws in regulation of the
liquor traffic, passed pursuant to provincial Acts,
were upheld as falling within this class as distinct
and apart from any other class of section 92. It
was considered that the power to create municipal
institutions necessarily implied the right to endow
those institutions with all the administrative func-
tions which had been ordinarily possessed and ex-
ercised by them before the union. This view has
since been rejected by the Privy Council, substan-
tially for the reasons advanced in the first edition
of this book. It may not be out of place to shortly
repeat them here.

It must not be forgotten that the pre-Conf eder-
ation 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 subdivision of the field between co-ordinate
legislative bodies within the colony, and upon the
principle of The Queen v. Burah ^ and subsequent
cases these pre-Confederation legislatures could,
from time to time, invest municipal bodies with
such of their own powers as to them seemed fit.

^E.g., Slavin v. Orillia, 36 U. C. Q. B; 159; Suite v. Three
Rivers, 5 Leg. News, 330 ; Keefe v. McLennan, 2 Russ. & Ches. 5 ;
Ti. V. Justices of Kings, 2 Pugs. 535.

2 See ante, p. 381 et seq.

792 CANADIAN constitution: self-government.

The municipal institutions in the various pre-Con-
federation provinces were widely dissimilar, rang-
ing from the (for those days) very complete sys-
tem of Upper Canada to the very incomplete and
primitive methods of local government in vogue
in New Brunswick. In fact, the maritime pro-
vinces can hardly be said to have had any system
of municipal government, and the systems of Up-
per and Lower Canada were by no means identi-
cal. Even if the term ^ municipal institutions ^
were to be construed according to the meaning at-
tached to it in the minds, not of those hy whom
but of those for whom it was passed,^ it is not con-
ceivable that this Imperial Act should receive a
construction geographically Variable. ^The deci-
sions 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 dif-
ferent provinces, intending, without expressly say-
ing so, that the phrase should bear the meaning
attached to it in one particular province, without
indicating which. Such an interpretation must be
put upon this sub-section as will obviate these diffi-
culties.* ^ Municipal institutions ' is but another
form of expression for local self-government by
boards or corporate bodies entrusted with powers
of administration and, to some extent, of legisla-
tion— but delegated powers merely. Irrespective
of detail this was a familiar phase of political or-
ganization. The essentials of a municipality would
appear to be, first, territorial limitation; and, sec-
ondly, the organization therein of the executive
and legislative machinery and staff for the admin-
istration of local affairs. Under a legislative

' See per Idington, J., in Toronto v. Grand Trunk, Ry., 37 S. C.
R. at p. 257.

*See Severn v. R., 2 S. C. R. 70; p?r Ritchie, J., at p. 99.

MUNICIPAL INSTITUTIONS. 793

union power all flows from the one legislature, but
under a federal form of government power over
any given subject matter must come from, and the
mode of its exercise be regulated by, that legisla-
ture which has itself power over the particular
subject matter. Given the municipalities instituted
under provincial legislation, the Dominion parlia-
ment as well as the provincial legislatures can con-
fer on such municipalities powers of local self-
government, each in relation to matters within its
own competence. The difficulties above referred
to were felt by many of the judges, but the view
prevailed that while there might be no inherent
connection between drink regulations and munici-
pal institutions there was, nevertheless, a constitu-
tional connection.^ And accordingly such regula-
tions by provincial legislation were upheld under
class No. 8 of s. 92. But, by the judgment of the
Privy Council in that case ^ such regulations, even
to the extent of provincial prohibition, are
grounded solely upon No. 16 of s. 92, '* matters of
a merely local or private nature in the province.''
The view which to some extent, as above inti-
mated, had been countenanced in Canadian cases,
particularly in Ontario, was thus dealt with:

" Their Lordships can find nothing to support that con-
tention in the language of section 92, No. 8, which accord-
ing to its natural meaning simply gives provincial legisla-
tures the right to create a legal body for the management
of municipal affairs. Until Confederation the legislature of
each province as then constituted could if it choose, and did
in some cases, entrust to a municipality the execution of
powers which now belong exclusively to the parliament of
Canada, Since its date a provincial legislature cannot dele-
gate any power which it does not possess; and the extent

^ See per Burton, J.A., in the Local ProTiiUtion Case, 18 O. A.
R. at p. 586.

• (1896), A. C. 348; 65 L. J. P. C. 25.

794 CANADIAN constitution: SEI,r-GOVERNMENT.

and nature of the functions which it can commit to a muni-
cipal body of its own creation must depend upon the legis-
lative authority -w^hich it derives from the provisions of sec-
tion 92 other than No. 8/'

It has been suggested that there is a distinction
to be drawn between the capacity and the powers
of a municipal body just as such a distinction has
been sometimes drawn in the case of an incorpor-
ated company/ but there is no case which has
really turned on any such distinction. Municipali-
ties instituted under provincial law seem to ex-
hibit a close analogy in a constitutional sense to
provincial Courts. Just as the latter were intended
to administer justice under both federal and pro-
vincial law/ so the former were designed to ad-
minister municipal or local affairs whether those
affairs fell within the sphere of federal or provin-
cial authority. In other words the object of muni-
cipal incorporation, namely, local self-govern-
ment, is constitutionally related to both spheres
of authority, and while the field of municipal gov-
ernment in by far the most numerous of its as-
pects is covered by section 92, No. 16, *^ matters
of a merely local or private nature,'' nevertheless
there are federal subjects, notably * the criminal
law, ' which require local attention and touch muni-
cipal life. And in regard to these the broad pro-
position referred to on a previous page obtains,
namely, that the parliament of Canada, as well as
a provincial legislature, may take advantage of the
existence within the territorial limits of its juris-
diction of any person or body of persons or of any
corporate body however created to confer upon
such person or persons, natural or artificial, such
powers or impose such duties connected with sub-
jects within its jurisdiction as to it may seem

^ Grand Trunk By. v. Toronto, 32 Ont. R. 129. See ante, p. 722.
* See ante, p. 510 et seq.

MUNICIPAL INSTITUTIONS. 795

meet.® Applying this proposition to the municipal
entity created by provincial legislation, it would
seem clear that the powers and duties of a muni-
cipal body, like those of the individual, are such as
may be conferred and imposed by both federal and
provincial legislation, each in its sphere. And
this, it is conceived, is the clear result of the judg-
ment of the Privy Council above noted.

The creation of municipal institutions rests
with the provincial legislatures. The princix>le of
popular election very largely if not entirely ob-
tains throughout Canada, and no serious question
has been raised as to the power of the provincial
legislatures to provide for such elections in all
their details, as also to determine the mode of try-
ing municipal elections cases, to name the tribunal,
and to regulate the procedure.^^ In the view of
the Privy Council these matters do not plainly fall
within ^^ the administration of justice in the pro-
vince '^ but they do fall clearly into the category
of laws relating to municipal institutions.

As already intimated the work of municipal
government is very largely concerned with matters
of a merely local or private nature and therefore
the powers of municipal bodies are to be looked
for in the main, in provincial enactment. But such
an enactment cannot confer power in relation to
matters as to which a provincial legislature can-
not itself directly legislate.^ Thus, power cannot
be given by provincial legislation to a municipal
body to pass by-laws for the enforcement of Sab-
bath observance as that, speaking generally, is a
matter touching the criminal law ; - though in so far

" See ante p. 531 et seq.

^^ Crowe V. McCurdy (1885), 18 N. S. 301; R. ex rel. McGuire v.
Birkett, 21 Ont. R. 162 ; Clarice v. Jacques, Que. R. 9 Q. B. 238.
^ Local ProMdition Case, extract, ante, p. 432.
'R. V. Walden, 19 B. C. 539; see ante, p. 578 et seq.

796 CAisTADiAN constitution: self-government.

as provincial law may regulate particular trades
by licensing requirements or otherwise,^ the power
of regulation may be delegated to municipal
bodies and may, it would appear, include the right
to enforce Sunday closing.*

The extent to which powers may be conferred
upon municipalities by provincial legislation, val-
idly enacted, is really without limit.*^ In a recent
case the power to delegate to municipalities the
right to acquire and control public utilities was af-
firmed in the broadest way in connection with the
Ontario hydro-electric undertaking ; ® and munici-
pal ownership of waterworks, gas and electric
light and power plants, etc., is common throughout
Canada.

The power of the Dominion parliament to im-
pose duties upon municipalities involving pecun-
iary outlay and thus necessitating the exercise of
the municipalities' powers of taxation was affirmed
in an early case by the Supreme Court of Canada
in relation to the calling out of the militia to quell
civic disturbance ; ^ and the Privy Council has, as
already pointed out, upheld the validity of those
provisions of federal railway legislation which em-
power the Board of Eailway Commissioners to
direct municipalities to contribute to the cost of
protective measures at railway crossings.^ The
Canada Temperance Act is another notable exam-

«See ante, p. 690.

*See ante, p. 586.

^Hodge's Case: extract, ante, p. 381.

'Smith V. London, 20 Ont. L. R. 133; Beardmore v. Toronto, 21
Ont. L. R. 505.

''Montreal v. Gordon, Coutlee's Supreme Ct. Cases, 343; and
see Atty.-Gen. of Can. v. Sydney (1914), 49 S. C. R. 148.

^Toronto v. Can. Pac. Ry. (1907), A. C. 54; 77 L. J. P. C. 29;
and see ante, p. 752 et seq.

^ MUNICIPAL INSTITUTIONS. 797

pie of powers conferred and duties imposed upon
municipalities by federal legislation.^

Federal law, competently enacted, binds muni-
cipalities just as it does individuals.^^ This pro-
position is clearly enunciated in the judgment of
Osier, J.A., affirming the power of the parliament
of Canada to force contribution from municipali-
ties toward the cost of protective measures as
above indicated:

" If the legislation is intra vires, municiipal corporations
are in no different position from natural persons; and there
is no more difficulty in enforcing compliance with the order
of the Railway Committee than in enforcing a judgment ob-
tained against them in an ordinary action."^

The power of the provincial legislatures to
create municipal institutions cannot operate of
course to prevent the parliament of Canada from
establishing local boards or bodies for the better
administration of federal law, as has been done in
many instances." In this respect, the analogy be-
tween the constitutional position of municipalities
and that of provincial Courts, suggested above,
would seem to be manifestly presented. If the
local machinery provided by provincial legislation
is not deemed satisfactory as a medium through
which the local administration of federal law is to
be carried out, machinery purely federal may be
provided by federal enactment.

» Local ProTiiUtion Case, 24 S. C. K. at p. 247, per Sedgewick,
J. ; Cooey V. Brome, 21 Lower Can. Jur. at p. 186, per Dunkin, J.

^''Cent. Vermont Ry. v. St. John, 14 S. C. R. 288; and see ante,
p. 371.

^iJe Can. Pac. Ry. and York County, 25 Ont. App. R. 65, at p.
73; quoted with approval by Girouard, J., in Toronto v. Grand
Trunk Ry., 37 S. C. R. at pp. 237-8.

'E.g., Harbour Commissions, Dominion Boards of Health, &c.,
with power to make local regulations which, conceivably, a muni-
cipal council might in many instances be empowered to make.

CHAPTER XL.
Commercial Law.

The parliament of Canada is given exclusive
jurisdiction by section 91 of the British North
America Act over all matters coming within the
following enumerated classes of subjects which
touch directly the commercial life of Canada,
namely :

2. The regulation of trade and commerce.

15. Banking, incorporation of banks, and the issue of
paper money.

16. Savings banks.

17. Weights and measures.

18. Bills of Exchange and promissory notes.

19. Interest.

20. Legal tender.

21. Bankruptcy and insolvency.

22. Patents of invention and discovery.

23. Copyright.

To these might be jadded such subjects as navi-
gation and shipping, international and interprovin-
cial ferries, sea coast and inland fisheries, and
federal works and undertakings, but these topics
have received separate treatment' in other chap-
ters.

On the other hand, the only classes of section
92 which can be considered as referring directly to
commercial matters are: No. 9, ^* shop, saloon,
tavern, auctioneer and other licenses in order to
the raising of a revenue for provincial, local, or
municipal purposes "; No. 10, '' local works and
undertakings,'' and No. 11, ^^ the incorporation of

COMMERCIAL LAW. 799

companies with provincial objects ''; and all of
these, again, have been discussed elsewhere.

Of the federal classes specifically enumerated
above it may be said that they have no specific
competing provincial class; but .that they them-
selves are all in the nature of exceptions carved
out of the large provincial class No. 13 '' property
and civil rights in the province.''' At the same
time they are to be interpreted in the light of that
large principle of allotment which, as suggested
in an earlier chapter,^ underlies the distribution of
legislative powers effected by the British North
America Act, namely, that the federal classes all
describe matters of common concern to all the pro-
vinces. This has been notably the case in regard
to the first of the classes above specified, namely,
** the regulation of trade and conamerce,'' already
dealt with in a previous chapter ; ^ but the same
principle applies to the more specific classes men-
tioned. While therefore the parliament of Canada
as a sovereign legislature may exercise the utmost
discretion of enactment in reference to these speci-
fied subjects and may by so doing override and put
into abeyance many provincial laws touching pro-
perty and civil rights which in the absence of fed-
eral legislation would properly have full effect,
nevertheless, on the other hand, provincial legisla-
tion upon local or private matters in the province
is not to be taken as infringing upon a federal class
merely because in some larger Canadian aspect
those same matters might fall to be dealt with by
federal enactment. These, it is conceived, are the
general principles chiefly exemplified by the var-
ious cases which have arisen under the classes par-
ticularly dealt with in this chapter.

^ See ante, p. 481.

- Chap. XXII., ante, p. 448.

""Ante, p. 683.*

800 CANADIAN constitution: self-government.

Banking J Incorporation of Banks, and the Issue of
Paper Money,

' In the leading case nnder tMs class its scope is
thus indicated by the Privy Council:

The legislative authority conferred by these words is not
confined to the mere constitution of corporate bodies with
the privilege of carrying on the business of bankers; it ex-
tends to the issue of paper currency, which necessarily means
the creation of a species of personal property carrying with
it rights and privileges which the law of the province does
not and cannot attach to it. It also comprehends ' banking,'
an expression which is wide enough to embrace every trans-
action coming within the legitimate business of a banker."'*

The Board's decision was in affirmance of an
earlier decision of the Supreme Court of Canada
in which the provision in the Dominion Banking
Act empowering banks to hold warehouse receipts
as collateral security for the re-payment of monies
advanced to holders of such receipts was held to
be intra vires, and no interference with property
and civil rights further than the fair requirements
of a banking Act would warrant/ The particular
provision in question in these cases was afterwards
repealed, allowing fuller scope for the operation
of provincial legislation.®

Provincial power to tax banks is now authori-
tatively established.'^

The difference of view which is possible as to
the classification of a given enactment is exhibited
in a case arising out of the winding-up of the
defunct Bank of Upper Canada. The Court of

^Tennant v. Vnion Bank (1894), A. C. 31; 63 L. J. P. C. 25.
See fuller extract ante, p. 429.

^ Merchants Bank v. Smith, 8 S. C. R. 512.

« Beard v. Steele, 34 U. C. Q. B. 43, referred to ante, p. 467.

'Lamde's Case, 12 App. Cas. 575; 56 L. J. P. C. 87; Windsor v.
Commercial Bank, 3 Russ. & Geld. 420. See ante, p. 653.

^ COMMERCIAL LAW. 801

Appeal for Ontario was equally divided upon the con-
stitutional point involved — the validity of a Dom-
inion Act specially providing for certain matters
in connection with the winding-up. In the Supreme
Court, Eitchie, C.J., was alone in upholding the
legislation as within this class, No. 15.^

Weights and Measures.

The establishment of Canadian standards was
apparently all that was contemplated by this class.®
It was held in New Brunswick not to prevent pro-
vincial legislation in reference to the stamping
upon bread offered for sale the weight of the
loaf ; ^° and in the Court of Appeal for Ontario the
Bread Sales Act of that province containing sim-
ilar provision was treated as intra vires, though
Meredith, J. A., was apparently in doubt upon the
point. The matter came before the Court upon a
reference from the Lieutenant-Governor in Coun-
cil merely asking for the Court's opinion as to the
construction of the Act and not as to its validity.^

Bills of Exchange and Promissory Notes.

No question has been raised as to the scope of
this class or as to the validity of any of the pro-
visions of the federal Bills of Exchange Act.^
There has been some discussion obiter, as noted on
a previous page,^ as to the power of the Dominion

^ Quirt V. R., 19 S. C. R. 510; (sud nom. R. v. Wellington), 17
O. A. R. 421; see ante, pp. 414, 646.

"See R. S. C. (1906), c. 52 (Weights and Measures Act) ; iK
c. 53 (Electrical Units Act).

'" R. y. Kay, Z9- N. B. 27S.

"■Re Bread Sales Act (1911), 23 Ont. L. R. 238.

^'R. S. C. (1906), c. 119.

^ See ante, p. 535 et seq.

CAN. CON. — 51

802 CANADIAN constitution: self-government.

Parliament to confer exclusive jurisdiction on a
particular or special court in cases upon negoti-
able instruments.

Interest.

The view taken by the federal government as
to the intended scope of this class is indicated by
the existing Dominion Acts upon the subject.* The
clause in the Interest Act which allows a mort-
gagee to pay off his mortgage upon certain terms
at any time after the expiration of six years from
the date of the loan, no matter for how long the
mortgage may have been drawn, was upheld in On-
tario in 1903 ^ and that case has not been subse-
quently doubted. The general scope of the class
was thus discussed in a case in the Supreme Court
of Canada in which it was held that provincial leg-
islation imposing an additional percentage upon
over-due taxes does not fall within this class :^

It is obvious that the matter of interest which was in-
tended to be dealt with by the Dominion parliament was in
connection with debts originating in contract, and that it
was never intended in any way to conflict with the right oi
the local legislature to deal with municipal institutions in
the matter of assessments or taxation, either in the manner
or extent to which the local legislature should authorize such
assessments to be made ; but the intention was to prevent in-
dividuals under certain circumstances from contracting for
more than a certain rate of interest and fixing a certain rate
when interest was payable by law without a rate having been
named. . . . Does not the collocation of No. 19 with the

*R. S. C. (1906), c. 120 (Interest Act); tb. c. 121 (Pawn-
brokers Act); il)., c. 122 (Money Lenders Act).

^Bradl)urn v. Edinl)urgh Life Co. (1903) T 5 Ont. L. R. 657;
Britton, J.

''Lynch v. Qan. N. W. Land Co., 19 S. C. R. 204; overruling
Boss v. Torrance, 2 Leg. News (Mont), 186; 2 Cart. 352; Mufne
V. Morrison, 1 B. C. (pt. 2), 120; and Schultz \. Winnipeg, 6 Man.
L. R. 35.

COMMERCIAL LAW. 803

classes of subjects 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 in-
terest in mercantile transactions and other dealings and con-
tracts 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 expres&ly deals with inter-
est on contracts and agreements as the first section conclu-
sively shews."^

Mr. Justice Taschereau characterizes the addi-
tion as a '^ penalty/^ 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 commercial and financial system of the country at
large. . . . We must see what the thing really is. It is
clearly something which the Manitoba taxpayer 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 re-
venue for provincial purposes, and as such is indisputably
within the legislative authority of the province. . . . The
imposition may, not improperly, be regarded as a penalty
for enforcing the law relative to municipal taxation, and in
that character it comes directly under article 15 of section
92."

The question whether such 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 diem; but, without expressing a
decisive opinion upon this point, the opinion of the
Court, Mr. Justice Gwynne dissenting, was that
such an imposition does not, at all events, fall
within the scope of this class No. 19.

'Per Ritchie, C.J. Following a number of American author-
ities, quoted in the judgment, the chief justice points out that
municipal taxes are not, per se, debts or contractual obligations.

804 CANADIAN constitution: self-government.

A provincial legislature may empower a provin-
cial company to borrow money at any legal rate
of interest.*^

Bankruptcy and Insolvency.

In one of the earliest cases to come before tbe
Privy Council under tbe British North America
Act the question was as to the validity of an Act
of the Quebec legislature which, in view of the em-
barrassed state of the finances of a certain society,
provided for a forced commutation of the annui-
ties payable out of its funds. This was attacked
as legislation relating to insolvency; but it was
held not to be within that class but to relate to a
matter of a merely local or private nature in the
province (No. 16 of section 92). What was con-
templated by the federal class No. 21 of section
91, ^^ bankruptcy and insolvency,'' is stated thus:

" The words describe in their known legal sense provisions
made by law for the administration of the estates of persons
who may become bankrupt or insolvent, according to rules
and definitions prescribed hy law, including of course the con-
ditions on which that law is to be brought into operation, the
manner in which it is to be brought into operation, and the
effect of its operation."^

The phrase in italics indicates that bankruptcy
or insolvency — for the terms are really synony-
mous— is a purely legal concept which the Dom-
inion parliament alone can create. In the absence
of a federal law establishing such a system for the
administration of the estate of a person who has
acquired the status of a bankrupt or insolvent per-
son, it is difficult to see on what ground provincial

* Royal Canadian Ins. Co. v. Montreal Warehousing Co., 3 Leg.
News (Mont), 155; 2 Cart. 361. ^

^U Union St. Jacques v. Belisle, L. R. 6 P. C. 31. ry U^

COMMERCIAL LAW. 805

legislation, making provision for the distribution
of a man's estate among his creditors and for his
discharge from liability upon his contractual ob-
ligations could be impugned. The Privy Council,
however, has declared that a provincial legislature
cannot pass a bankruptcy Act,^° and stress has been
laid on the absence of compulsory provisions in
provincial Acts which have been upheld as compe-
tent legislation touching '' property and civil
rights in the province '' (No. 13 of section 92), al-
though the distribution was in reality in invitum,
as under the various Creditors' Eelief Acts now in
force in the various provinces. What is the really
essential feature in insolvency legislation, the pre-
sence of which in a provincial Act would render
the Act ultra vires, is a difficult question which has
not been yet clearly answered.

The extent to which the Dominion parliament
may by such legislation interfere with ^^ property
and civil rights " (No. 13 of section 92), or with
** procedure " (No. 14 of section 92) is indicated
by the judgment of the same tribunal in a later
case :

" It would be impossible to advance a step in the con-
struction of a scheme for the administration of insolvent
estates without interfering with and modifying some of the
ordinary rights of property, and other civil rights, nor with-
out providing some special mode of procedure for the vesting,
realization, and distribution of the estate, and the settlement
of the liabilities of the insolvent. Procedure must neces-
sarily form an essential part of any law dealing with insol-
vency. It is therefore to be presumed, indeed it is a neces-
sary implication, that the Imperial statute, in assigning to
the Dominion parliament the subjects of bankruptcy and in-
solvency, intended to confer on it legislative power to inter-
fere with property, civil rights, and procedure within the

^^ Fisheries Case: extract ante, p. 436.

806 CANADIAN constitution: self-government.

provinces, so far as a general law relating to those subjects
might affect them/'^

There is now no such general law in force in
Canada, except the Dominion Winding-up Acts re-
lating exclusively to companies, and the extent of
provincial power in reference to matters which
might properly form the subject of such a law has
been much discussed. ^' An Act respecting assign-
ments and preferences by insolvent persons *^
passed by the legislature of Ontario was considered
finally by the Privy Council ^ and held intra vires,
for reasons thus stated:

" Their Lordships proceed now to consider the nature of
the enactment said to be ultra vires. It postpones judg-
ments and executions not completely executed by payment to
an assignment for the benefit of creditors under the Act.

^Cushing v. Dupuy, 5 App. Cas. 409; 49 L. J. P. C. 63. The
general rule is discussed post, p. 818 et seq. The decision supports
Cromtie v, Jackson, 34 U. C. Q. B. 575. Reference may also be
had to Kinney v. Dudman, 2 Russ. & Geld. 19 ; 2 Cart. 412, up-
holding the validity of s. 59 of the Insolvent Act of 1869, which
provided that a judgment not completely executed should create
no lien or privilege upon an insolvent's property as against an
assignment under the Act; and to Peak v. Shields, 8 S. C. R. 579;
6 O. A. R. 639; 31 U. C. C. P. 112, which involved the question as
to the validity of the 136th section of the Insolvent Act of 1875,
which provided that a debtor fraudulently obtaining goods on
credit with knowledge of his insolvency might be subjected under
the Act to imprisonment. The opinions delivered were very con-
flicting, some of the judges regarding the clause as one relating
to procedure in civil cases (No. 14 of s. 92), others as criminal
legislation (No. 27 of s. 91), and others as insolvency legislation
proper under this class. No. 21. The larger question, also in-
volved in this case, as to the power of a colonial legislature to
legislate as to acts committed abroad is discussed ante, p. 114.
See also Quirt v. R., 19 S. C. R. 510, referred to ante, pp. 800-1.

"^ Voluntary Assignments Case (1894), A. C. 189; 63 L. J. P. C.
59. It came before their lordships upon direct appeal from the
Ontario Court of Appeal; 20 0. A. R. 489. See also Clarkson v.
Out. Bank, 15 O. A. R. 166; Union Bank v. Neville, 21 O. R. 152;
Bleasdell v. Townsend, 3 Can. Law Times, 509 (Man.); Re Killam
(1878), 14 C. L. J. N. S. 242.

COMMERCIAL LAW. 807

Now there can be no doubt that the effect to be given to judg-
ments and executions, and the manner and extent to which
they may be made available for the recovery of debts are
prima facie within the legislative powers of the provincial
parliament. Executions are a part of the machinery by
which debts are recovered, and are subject to regulation by
that parliament. A creditor has no inherent right to have
his debt satisfied by means of a levy by the sheriff or to any
priority in respect of such levy. The execution is a mere
creature of the law, which may determine and regulate the
rights to which it gives rise. The Act of 1887 ^ which
abolished priority as amongst execution creditors provided a
simple means by which every creditor might obtain a share
in the distribution of moneys levied under an execution by
any particular creditor. The other Act of the same year con-
taining the section which is impeached goes a step further
and gives to all creditors under an assignment for their
general benefit a right to a rateable share of the assets of the
debtor including those which have been seized in execution."

" But it is argued that, inasmuch as this assignment con-
templates the insolvency of the debtor and would only be made
if he were insolvent, such a provision purports to deal with
insolvency and therefore is a matter exclusively within the
jurisdiction of the Dominion parliament. Xow it is to be
observed that an assignment for the general benefit of credi-
tors has long been known to the jurisprudence of this coun-
try and also of Canada, and has its force and effect at common
law quite independently of any system of bankruptcy or in-
solvency or any legislation relating thereto. So far from
being regarded as an essential part of the bankruptcy law,
such an assignment was made an act of bankruptcy on which
an adjudication might be founded, and by the law of the pro-
vince of Canada which prevailed at the time the Dominion
Act* was passed it was one of the grounds for an adjudication
of insolvency.

" It is to be observed that the word ' bankruptcy ' was ap-
parently not used in Canadian legislation, but the insolvency
law of the province of Canada was precisely analogous to
what was known in England as the bankruptcy law.

• The Ontario " Creditors' Relief Act."
*I.e., the Dominion Insolvent Act, 1869.

808 CANADIAN constitution: self-government.

" Mioreover, the operation of an assignment for the benefit
of creditors was precisely the same whether the assignor was
or was not in fact insolvent. ...

" It is not necessary, in their Lordships' opinion, nor
would it be expedient, to attempt to define what is covered by
the words ' bankruptcy ' and ' insolvency ' in section 91 of the
British North America Act. But it will be seen that it is a
feature common to all the systems of bankruptcy and insol-
vency to which reference has been made, that the enactments
are designed to secure that in the case of an insolvent person
his assets shall be rateably distributed amongst his creditors,
whether he is willing that they shall be so distributed or not.
Although provision may be made for a voluntary assignment
as an alternative, it is only as an alternative. In reply to a
question put by their Lordships the learned counsel for the
respondent were unable to point to any scheme of bankruptcy
or insolvency legislation which did not involve some power
of compulsion by process of law to secure to the creditors the
distribution amongst them of the insolvent's estate.'*

" In their Lordships' opinion, these considerations must
be borne in mind when interpreting the words ' bankruptcy '
and * insolvency ' in the British North America Act. It appears
to their Lordships that such provisions as are found in the
enactment in question, relating as they do to assignments
purely voluntary, do not infringe on the exclusive legislative
power conferred upon the Dominion parliament. They would
observe that a system of bankruptcy legislation may frequently
require various ancillary provisions for the purpose of pre-
venting the scheme of the Act from being defeated. It may
be necessary for this purpose to deal with the effect of exe-
cutions and other matters which would otherwise be within
the legislative competence of the provincial legislature.
Their Lordships do not doubt that it would be open to the
Dominion parliament to deal with such matters as part of a
bankruptcy law, and the provincial legislature would doubt-
less be then precluded from interfering with this legislation,

^ See ante, p. 805. It was held in Dupont v. La Cie de Moulin
(1888), 11 L. N. 225, by the Superior Court at Montreal, that pro-
vision for an insolvent's discharge upon a full compliance with
the terms of the insolvency law is not an essential feature of in-
solvency legislation.

COMMEECIAL LAW. 809

inasmuch as such interference would affect the bankruptcy
law of the Dominion parliament. But it does not follow that
such subjects as might properly be treated as ancillary to
such a law, and therefore within the ipowers of the Dominion
parliament, are excluded from the legislative authority of
the provincial legislature when there is no bankruptcy or
insolvency legislation of the Dominion parliament in exist-
ence."

Winding-up of Companies.

The Dominion Winding-up Acts are insolvency
legislation, and are properly made applicable to
companies incorporated under provincial legisla-
tion.* They also apply to Imperial companies, the
power in such case being limited, of course, to deal-
ing with the realization and distribution of the as-
sets in Canada."^ But the Dominion parliament
cannot pass an Act for the liquidation of all build-
ing societies in a province, whether solvent or not.^
Provincial Winding-up Acts are intra vires so long
as they are not true ^^ bankruptcy and insolvency '*
legislation.®

In a comparatively recent case in Ontario it
was held by Mr. Justice Mabee that a provincial

«/?e Eldorado Union Store Co., 6 Russ. & Geld. 514; 8hooldred
V. Clark, 17 S. C. R. 265.

' Allen V. Hanson, 18 S. C. R. 667. In the earlier case of Mer-
chants Bank v. Gillespie, 10 S. C. R. 312, it was held that the
Winding-up Act then in force did not, upon its proper construc-
tion, apply to such an imperial company. See also Re Briton
Medical and Gen. Life Ass'n., 12 O. R. 441. The deposit required
by the Act to be made by all companies desiring to do business
In Canada was held to be a special fund applicable, in case of in-
solvency, for the benefit of Canadian policy holders only.

'' McClanaghan v. St. Ann's Mut. Bldg. Soc, 24 L. C. Jur. 162;
2 Cart. 237.

* This would seem to be a proper deduction from the decision
in the Voluntary Assignments Case, supra. See Re Wallace-Heus-
tis Grey Stone Co., Russ. Eq. Rep. N. B. 461; 3 Cart. 374; In re
Dom. Prov. B. d E. Ass'n., 25 O. R. 619; Re Iron Clay Brick Co.,
19 O. R. 119; Re Florida Mining Co., 9 B. C. 108.

810 CANADIAN" constitution: self-government.

company cannot be wound np under the Dominion
Winding-up Act except in case of its insolvency.^'^
The capital of the company had been largely im-
paired and the company itself was in course of vol-
untary liquidation, but as there were no creditors
a state of insolvency could not be said to exist.
The application which was made by shareholders
was therefore dismissed, not being made under the
provincial Winding-up Act. But in a later case be-
fore the Court of Appeal for Manitoba a different
view was taken.^ In the opinion of the majority
of the Court (Howell, C.J.M., diss.) it is within
the power of the Dominion parliament to deter-
mine what shall constitute an act or acts of bank-
ruptcy or the condition of insolvency; and the var-
ious clauses of the Dominion Winding-up Act which
define the cases in which an order may be made
are, in effect, definitions of bankruptcy or insol-
vency. It seems difficult, however, to reconcile
this view with the principle underlying the judg-
ment of the Privy Council in the Through Traffic
Case.^ The parliament of Canada cannot at its
own will enlarge its jurisdiction by giving an arti-
ficial or statutory meaning to the words used in an
imperial Act to describe competing classes.^ If a
provincial company's shareholders are creditors,
then a provincial company which has suffered loss
but still has enough to pay all its ordinary credi-
tors as their claims mature, or which may have no
ordinary creditors, may be said to be insolvent;
but that seems to be an unnatural meaning to be
given to the words ^^ bankruptcy and insolvency,''
and the judgment of the Court of Appeal for Mani-
toba does not, apparently, proceed on such a view.

" Re Cramp Steel Co., 16 Ont. L. R. 230.
^Re Colonial Investment Co. (1913), 23 Man. L. R. 87.
2 (1912), A. C. 333; 81 L. J. P. C. 145. See ante, p. 378.
^ See ante, p. 500 et seq.

COMMERCIAL LAW. 811

The compulsory character of insolvency proceed-
ings does not really touch the question, which is:
do the provisions contained in the Act constitute
legislation relating to bankruptcy or insolvency?

Provincial Legislation Touching Insolvency.

It was early held* by the Supreme Court of
New Brunswick that those provisions, in what are
commonly known as Indigent Debtors Acts, pro-
viding for the examination of a confined debtor
and for his discharge from imprisonment upon
proof of indigence and of the absence of fraudu-
lent dealings with his property, cannot be passed
by provincial legislatures. The judgment of the
Court was founded upon views as to the wide scope
of this class which cannot in view of the later
authorities be now considered a correct exposition
of the law. The words ^' bankruptcy and insol-
vency '' were interpreted as covering all legisla-
tion as to impecunious debtors even entirely apart
from any system of bankruptcy and insolvency leg-
islation, and, in this view, the Act in question was
held to be an insolvent Act.^ In subsequent cases
in New Brunswick this wide view has evidently
and necessarily been modified. Prior to the union,
the New Brunswick legislature had passed an Act
extending the gaol limits — an Act affecting confined
debtors. This Act was not to come into operation
until April 1st, 1868, but before that d^te, and af-
ter 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 : the provin-
cial legislature was therefore within its powers in

*R. V. Chandler (1868), 1 Hannay 556; 2 Cart. 421.
=*See the remarks of Burton, J.A., in Clarkson v. Out. Bank,
ubi supra.

812 CANADIAN constitution: self-government.

repealing it.^ An Act of the legislature of that
province abolishing 'imprisonment for debt was
held not ultra vires as to a party not shown to be
a trader subject to the Dominion Insolvent Act."^

Again, an Act of the New Brunswick legislature
providing that, as against an assignee of the gran-
tor under any law relating to insolvency, a bill of
sale should only take effect from the date of its
filing was held to be intra vires.^ It was held by
the Nova Scotia Courts that a provincial legisla-
ture could confer upon a newly created provincial
Court jurisdiction to entertain an application for
the discharge of an insolvent debtor under a pro-
vincial Act passed prior to Confederation, such
legislation, it was held, not coming within this
class ; ^ while, on the other hand, the Supreme
Court of Prince Edward Island held to be ultra
vires a provision in the Judgment Debtors Act of
that province providing for the discharge of an in-
solvent debtor/^

The decision of the Privy Council in the Vol-
untary Assignments' Case would seem to cover the
various matters discussed in the above cases. As
relating to ^^ civil rights in the province,'' or to
** procedure in civil matters,'' a provincial legisla-
ture has full power to legislate thereon subject to

» McAlmon v. Pine, 2 Pug. 44 ; 2 Cart. 487.

^ Armstrong v. McCutchin, 2 Pug. 381 ; 2 Cart. 494, See also Ex
p. Ellis, 1 P. & B. 593; 2 Cart. 527, upholding a provincial Act
authorizing imprisonment for non-payment of a judgment in cer-
tain cases ; and Quebec Bank v. Tozer, 17 Que. S. C. 303, to same
effect; also Parent v. Trudel, 13 Q. L. R. 139 (capias proceedings),
and Johnson v. Harris, 1 B. C. (pt. 1) 93 (debtor's exemption
law).

* McLeod V. Vroom, Trueman's N. B. Eq. Cas. 131 ; Re De Veber,
21 N. B. 401; 2 Cart. 552.

^Johnson v. Poyntz, 2 Russ. & Geld. 193.

^ Munn V. McConnell, 2 P. E. I. 148; and see In re Blackdum,
2 P. E. I. 281.

COMMERCIAL LAW. 813

the operation of any general insolvency legislation
passed by the Dominion parliament.

An Act of the Nova Scotia legislature, entitled
** An Act to facilitate arrangements between rail-
way companies and their creditors,'' provided that
the company might propose a scheme of arrange-
ment between the company and its creditors, and
file the same in Court, and that thereupon the
Court might, on application by the company, re-
strain any action against the company, upon such
terms as such Court might see fit. The Act also
provided that notice of filing the scheme should be
published, and that thereupon no process should
be enforced against the company without leave of
the Court. Mr. Justice Ritchie considered the Act
as one which could have reference only to a com-
pany which was insolvent, and upon this view held
it ultra vires as an infringement upon the powers
of the Dominion parliament under this class.^

This decision, however, must be considered
overruled by the judgment in Re Windsor S Anna-
polis Railivayj^ 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, however, is
placed upon the ground that the Windsor & Anna-
polis Railway was a local work or undertaking
within the meaning of s. 92, No. 10, and that so far
as any such local undertaking is concerned, the
impugned Act 'was within the legislative compe-
tence of the provincial legislature. The scheme
propounded by the company had no relation what-
ever to the insolvency of the company, and was

^ Murdoch v. Windsor and Ann. Ry. Co., Russ. Eq. Rep. 137.
» 4 Russ. & Geld. 312.

814 CANADIAN constitution: self-government.

simply a scheme for changing the form of the
stock. In this view of the case reliance was placed
upon L 'Union St. Jacques v. Belisle,^ and the Act
in its relation to local undertakings upheld upon
the authority of that case.

Patents : Copyright.

These topics have already been sufficiently no-
ticed. They are notable examples of classes any
legislation upon which must of necessity deal with
rights of property and civil rights and, in patent
cases particularly, With procedure in civil mat-
ters.

^ See ante, p. 414.

CHAPTER XLI.

Property and Civil Rights.

By section 92, No. 13, the provincial legislatures
are given the exclusive power to make laws in re-
lation to '^ property and civil rights in the pro-
vince,'' and in Parsons' Case ' it was held that the
words '' property and civil rights " are here used
in the widest sense. The question was as to the
validity of a provincial Act which prescribed cer-
tain uniform conditions to be made part of all fire
insurance contracts. This, as already noticed,^ was
held not to be legislation falling within '' the re-
gulation of trade and commerce "; but it was also
contended that '' civil rights '' should be limited
to such rights only as flowed from the law, e.g., the
status of persons, and should not be interpreted to
cover rights arising from contract. Had this con-
tention prevailed, the provinces would have been
driven out of the larger part of the field of activity
which now, by the authoritative deliverance of the
Privy Council in that case, they, are undoubtedly
entitled to occupy; unless, indeed. No. 16 of sec-
tion 92 would have sufficed to save the situation.
The contention was negatived and the general
scope of the class No. 13 gf section 92 indicated
thus :

" Their Lordships cannot think that the latter construc-
tion 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
words are sufficiently large to embrace, in their fair and
ordinary meaning, rights arising from contract; and such

^ 7 App. Cas. 96; 51 L. J. P. C. 11.
2 See chap. XXXII., ante, p. 683.

816 CANADIAN constitution: self-government.

rights are not included in express terms in any of the enumer-
ated classes of subjects in section 91.

" It becomes obvious, as soon as an attempt is made to
construe the general terms in which the classes of subjects
in sections 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 reasonable intendment be modified and limited.
In looking at section 91, it will be found not only that there
is no class including, generally, contracts and the rights aris-
ing from them, but that one class of contracts is mentioned
and enumerated, viz. : ^ 18. — Bills of exchange, and promis-
sory 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 ' pro-
perty and civil rights' are. used. By that section the parlia-
ment 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 pro-
cedure of the Courts in these three provinces, if the provin-
cial legislatures choose to adopt the provisions so made. The
province of Quebec is omitted from this section for the obvi-
ous reason that the law which governs iproperty 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 rea-
son 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 Que-
bec, though now governed by its own Civil Code, founded on
the French law, as regards contracts and their incidents.

PROPERTY AND CIVIL RIGHTS. 817

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, not-
withstanding 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. III. c. 83, which made pro-
vision for the government of the province of Quebec. Sec-
tion 8 of that Act enacted ^ that His Majesty^s Canadian sub-
jects within the province of Quebec should enjoy their pro-
perty, usages, and other civil rights as they had before done,
and that in all matters of controversy relative to property and
civil rights resort should be had to the laws of Canada, and
be determined agreeably to the said laws.' In this statute,
the words ' property and civil rights ' are plainly used in
their largest sense ; and there is no reason for holding that in
the statute under discussion they are used in a different or
narrower one.''

The Quebec Act, 1774, referred to in the last
paragraph of this quotation, draws a sharp dis-
tinction between the criminal and the civil law,^
the two branches together being treated as inclu-
sive of the whole field of jurisprudence; and the
committee, in holding that the same wide meaning
should be given to the term ^^ property and civil
rights '' in the British North America Act have,
it may be thought, decided that the various other
classes of section 92 are to be treated as unneces-
sary surplusage. A reference, however, to those
other classes will show that, with one or two ex-
ceptions, they treat, not of civil rights as between
subject and subject, but of government business,
and of what may be called political rights,* as be- ^
tween the subject, on the one hand, and the pro-
vincial government and bodies organized for the

2 See ante, p. 283.

* See Re N. Perth, 21 O. R. 538 ; ante, p. 523. Boyd, C, says
of this class No. 13 that " it regards mainly the meum and tuum as
between citizens."

CAN. CON. — 52

818 CANADIAN constitution: self-government.

purposes of local self-government throughout the
various sections of the province, on the other. The
judgment of the Committee does, however, indicate
a very wide range of subjects as included within
this class No. 13 — a range subject only, 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 classes of section 91.

The warning note sounded in Parsons' Case,
against entering more largely upon an interpreta-
tion of the British North America Act than the par-
ticular case calls for, has been lately repeated with
this pointed reference to the class now under dis-
cussion :

" Tlie wisdom of adhering to this rule appears to their
Lordships to be of especial importance when putting a con-
struction on the scope of the words 'civil rights" in par-
ticular cases. An abstract logical definition of their scope
is not only, having regard to the context of the 91st and 92nd
sections of the Act, impracticable, but is certain, if attempted,
to cause embarrassment and possible injustice in future cases.
It must be borne in mind in construing the two sections that
matters which in a special aspect and for a particular purpose
may fall within one of them, may in a different aspect and
for a different purpose fall within the other. In such cases,
the nature and scope of the legislative attempt of the Do-
minion or the province, as the case may be, have to be ex-
amined with reference to the actual facts if it is to be pos-
sible to determine under which set of powers it falls in sub-
stance and in reality. This may not be difficult to determine
in actual and concrete cases, but it may well be impossible to
give abstract answers to general questions as to the meaning
of the words, or to lay down any interpretation based on their
literal scope apart from their context."*^

Federml Legislation Touching Property and
Civil Rights: — Many of the enumerated classes of

*^ Deere Plow Co. Case (1915). Extract ante, p. 444.

PROPERTY AND CIVIL RIGHTS. 819

section 91 obviously cover certain species of pro-
perty and departments of civil rights. And the
power of the parliament of Canada to legislate in
relation to these classes is a plenary paramount
power, exerciseable to the full as parliament sees
fit and overriding all inconsistent provincial legis-
lation.^ And the same is true, it is conceived, of
federal legislation properly passed under the open-
ing, * peace, order, and good government ' clause
of section 91.^ What is legislation falling properly
within the class-enumerations of section 91 or
within its opening clause, and what is the distinc-
tion, if any, between substantive legislation falling
strictly within a given class and ancillary or neces-
sar'ily incidental legislation in connection there-
with, are subjects which have been already fully
treated of. And sufficient attention has already
been paid to the general question how far, in the
absence of federal legislation, provincial legisla-
tures may make laws touching subjects which in
other aspects and in different environments might
properly be dealt with by the parliament of Can-
ada.'^ Here it will suffice to draw attention to the
decided cases in which, on the one hand, federal en-
actments have been upheld notwithstanding their
operation upon property and civil rights in one or
more or all of the individual provinces, and in
which, on the other, provincial enactments have
been held valid as relating to property and civil
rights in the province, notwithstanding their effect
upon subjects within the general jurisdiction of
the parliament of Canada.

Prior to Parsons' Case the Privy Council had
dealt specially in dishing v. Dupuy ' with the ques-

"See ante p. 468, et seq.
«See ante, p. 469, et seq.
^See ante, p. 485, et seq.
»5 App. Cas. 409; 49 L. J. P. C. 63; extract ante, p. 418.

820 CANADIAN constitution: self-government.

tion as to the scope of the federal class ^* bank-
ruptcy and insolvency '' and had affirmed the
power of the parliament of Canada to deal under
that head with rights of property and civil rights
which ordinarily would fall within provincial jur-
isdiction. A few years later in BusselVs Case,^
the Board affirmed the validity of the Canada Tem-
perance Act, a federal enactment based — as later
cases show — solely upon the opening clause of sec-
tion 91, notwithstanding its obvious effect upon
property and civil rights in the various provinces.
Still later in Tennants' Case,^^ the Board had to
consider the scope of federal jurisdiction under the
head '^ banking '' and a clause in the Bank Act em-
powering banks' to accept and hold warehouse re-
ceipts as collateral security for loans made to the
holders thereof was upheld as a legitimate exercise
of federal legislative power under that class. In
that case the question is treated as one of princi-
ple applicable to all the class-enumerations of sec-
tion 91. ^ Patents of invention and discovery ' and
* copyright ' are specially instanced as subjects
upon which it would be practically impossible to
legislate without affecting the property and civil
rights of individuals in the provinces; and the de-
cision in Gushing v. Dupuy touching ^' bankruptcy
and insolvency '' legislation is cited as based on
the same general principle.

And in the Fisheries Case, and the Contract-
ing-out Case, the same principle was laid down as
to federal legislation concerning fisheries and fed-
eral railways respectively. In the various chapters
of this book dealing with the different federal
classes numerous examples will be found of the ap-
plication of the same principle by Canadian Courts.

»7 App. Cas. 829; 51 L. J. P. C. 77; extract ante, p. 424.
" (1894), A. C. 31; 63 L. J. P. C. 25; extract ante, p. 429.

PROPERTY AND CIVIL RIGHTS. 821

Provincial Legislation: How Far Incompetent:
—A provincial legislature cannot deal with sub-
jects which are prima facie within a federal class
in those aspects of them which are really within
the class; that is to say, for example, a provincial
legislature cannot pass a Bankruptcy Act, a Patent
Act, a Copyright Act, a Divorce Act, a Merchants
Shipping Act, or enact fishery regulations. In this
connection the true nature and character, the pith
and substance, of the impugned Act must be con-
sidered. An Act which does in a large sense deal
with property and civil rights may, on close inspec-
tion, be found to have been passed alio intuitu; as,
for example, to curtail the civil rights of aliens,^ • ^
to create offences with a view to their punishment ^**^
in the public interest,^ to regulate the structural^ j**"""^
arrangement of federal railways ; ^ in other words,
it may appear, that the primary object dealt with
is some matter falling within federal jurisdiction.
In all such cases, provincial legislation would be
held invalid. This, however, is a matter which has
already been sufficiently dealt with, both as a mat-
ter of general principle * and in individual cases
under the various classes of section 91.

How Far Competent: — Short of offending in
the way indicated in the last paragraph and sub-
ject always to the paramount authority of federal
law validly enacted, provincial legislation relating
to property and civil rights in the fullest sense is
permissible; and an inspection of the provincial
statute books discloses that a great part of the sta-
tute law of the different provinces is based upon
the authority conferred by No. 13 of section 92. It

* See ante p. 486.
*See ante, p. 563 et seq.
» See ante, p. 759 et seq.

* See ante, p. 486 et seq.

822 CANADIAN COI^bTITUTION: SELF-GOVERNMENT.

would seem, indeed, that this class really throws
the largest residuum to the provinces; bnt that the
field comprised within it is one which may from
time to time grow narrower as the necessity for
federal legislation upon the various classes of s.
91 increases. For example, the field now occupied
by provincial legislation of the kind upheld in the
Voluntary Assignments Case^ would no doubt be
largely covered by any Insolvency Act the federal
parliament might see fit to pass.

Some Examples: — It is not considered neces-
sary to refer again here to all the cases in which
provincial legislation has been upheld as falling
properly within this class rather than within some
federal class apparently touched by it. The com-
peting or apparently competing federal class is
usually plainly discernible and reference may be
had to that part of this book in which the scope of
the particular federal class is discussed. Just by
way of illustration, however, a short statement of
some of the fields of legislative activity open to
provincial legislatures under this head may be
given :

The regulation of particular trades and com-
mercial transactions: Held not to be a regulation
of trade and commerce within the meaning of No.
2 of section 91,* nor, when penalties are attached to

^ See extract ante, p. 430.

^Parsons' Case (insurance contracts) ; Beard v. Steele (ware-
house receipts) ; 34 U. C. Q. B. 43; see ante, p. 800; R. v. Robertson
(game laws): 3 Man. L. R. 613; ante, p. 691; Gower v. Joyner
(master and servant) : 32 Can. Law Jour. 492; R. v. Wason (con-
tracts with cheese factories), 17 O. A. R. 221; ante, p. 572, Quong
Wing V. R., 49 S. C. R. 440 (employment). It should be noted that
the local regulation of particular trades with a view to suppres-
sing or preventing local evils though touching civil rights falls
more obviously within No. 16 of section 92. No. 13 touches the
rights and duties of individuals inter se rather than in relation to
the public. See ante p. 817, note.

PROPERTY AND CIVIL RIGHTS. 823

a breach of the law, to be '^ criminal law " legisla-
tion/

*^ Creditors' Relief " Acts and Acts providing
for the enforcement of judgments against debtors
solvent or insolvent: provincial winding-np Acts:
Held not to be insolvency legislation ^ nor to fall
within the domain of criminal law even when im-
prisonment might be awarded in certain events.^

Legislation as to proprietary rights, provincial
or private, in fisheries ; ^^ as to Dominion companies
and corporations ^ and federal railways ; ^ and as
to aliens.^

" In the Province.''

The doctrine of exterritoriality in its applica-
tion to colonial legislation generally was examined
at some length in an earlier chapter.* And in re-
ference to provincial legislation the subject was
again discussed in dealing with the phrase '^ within
the province '^ as a territorial limitation upon pro-
vincial powers of taxation.^ In reference to pro-
vincial legislation touching property and civil
rights the effect of the added phrase '' in the pro-
vince '' has been of late the subject of much dis-
cussion following the decision of the Privy Coun-
cil holding invalid certain legislation of the legis-
lative assembly of Alberta as relating to property
and civil rights without that province.® Apart

^ R. V. Robertson, R. v. Wason, Quong Wing v. R., all uM supra.
« Voluntary Assignments Case and cases noted in chapter XL.
» Ex p. Ellis, and other cases noted ante, p. 589.
*° See the extract from the Fisheries Case, ante, p. 714.
? See ante, p. 741.
'See ante, p. 759.
'See ante, p. 671, et seq.
* Chap. VII., ante, p. 65, et seq.
^ Ante, p. 648, et seq.

"Royal Bank v. R. (1913), A. C. 283 ; 82 L. J. P. C. 33; revers-
ing 4 Alberta L. R. 929.

824 CANADIAN- constitution: self-government.

from the question immediately involved, the case
presents many features of extra-provincial results
following upon provincial legislation. Three non-
residents of the province were incorporated under
a provincial Act for the avowed object of building
and operating a railway to be situate wholly
within the province. The company was authorized
to borrow money upon its bonds and these bonds
were to a defined extent guaranteed by the govern-
ment of the province pursuant to authority con-
ferred by another Act of the same session. Under
this Act and certain Orders-in-Council passed un-
der it, arrangements were made for the sale of the
company's bonds in England through the branch
there of a New York banking-house. To secure
the purchasers of the bonds the company mort-
gaged its assets and undertaking to a trust com-
pany incorporated under a Manitoba statute and
having its head office in Winnipeg in that province.
In order to keep proper control of the moneys real-
ized upon the sale of the railway company's bonds,
the government of the province of Alberta, as it
was entitled to do under the provincial Act, named
certain banks as custodians of the proceeds of the
sale of the bonds, which proceeds were to be placed
to the credit of the provincial treasurer and paid
out from time to time as the work of construction
progressed. The moneys realized in England were
transmitted to New York and there paid over to
the banks named by the Alberta government,
amongst others to the Eoyal Bank of Canada, a
bank incorporated under federal Act and having
its head office in Montreal in the province of Que-
bec. No part of the moneys so received by the
Royal Bank was sent in specie to Alberta, but an
account was opened at a branch of the bank at Ed-
monton, the capital of the province, to the credit
of the provincial treasurer, the amount credited

PROPERTY AND CIVIL RIGHTS. 825

being the entire amonnt received by the bank. The
special account so opened was subject to the im-
mediate instructions of the bank's head office at
Montreal. Before any moneys had been paid out
the enterprise apparently collapsed, the railway
company made default in payment of the interest
upon its bonds, and the legislative assembly of Al-
berta thereupon passed an Act which, while ratify-
ing and confirming the provincial guarantee, dir-
ected that ** the proceeds of the sale of the said
bonds '' — to quote the words of the Act — should
be paid over by the various banks, including the
Royal Bank, to the provincial treasurer and be
held as part of the general revenue fund of the pro-
vince. The Royal Bank declined to pay over the
amount standing to the credit of the special ac-
count above mentioned and the province accord-
ingly brought suit to compel payment. The
Supreme Court of Alberta was of opinion that the
proceeds of the sale of the bonds were within the
province and that the Act therefore was intra vires
as relating to ^^ property and civil rights in the
province '' (No. 13 of section 92) but upon appeal
to the Privy Council this decision was reversed
and the Act held invalid as legislation relating to
property and civil rights without the province. The
view of their Lordships was apparently that the
fund, ^' the proceeds of the sale of the said bonds,"
which had come into existence under the earlier
legislation had its situs at the head office of the
Bank at Montreal and that at that city the bond-
holders had the right to demand and receive back
the moneys they had paid as paid upon a consider-
ation which had failed. The provincial Act there-
fore was an Act relating directly to property situ-
ate without the province of Alberta and directly
destructive of rights in regard to that property
not only capable of enforcement but also properly

826 CANADIAN constitution: self-government.

enforceable in the province of Quebec. The power
of the legislative assembly of Alberta to repeal the
earlier guarantee Act was not doubted, but it was
considered that the later impugned Act attempted
to deal with an ear-marked fund not situate in the
province and to affect rights to that fund existing
elsewhere than and not in the province. This, it
is conceived, is the ground taken in the judgment:

" The money claimed in the action was paid to the ap-
pellant bank as one of those designated to act in carrying out
the scheme. The bank received the money at its branch in
New York, and its general manager then gave instructions
from the head-office in Montreal to the manager of one of its
local branches, that at Edmonton, in the province of Alberta,
for the opening of the credit for the special account. The
local manager was told that he was to act on instructions
from the head-office, which retained control. It appears to
their Lordships that the special account was opened solely
for the purposes of the scheme, and that, when the action of
the government in 1910 altered its conditions, the lenders in
London were entitled to claim from the bank, at its head-
office in Montreal, the money which they had advanced solely
for a purpose which had ceased to exist. Their right was
a civil right outside the province; and the legislature of the
province could not legislate validly in derogation of that
right. These circumstances distinguish the case from that
of R. V. Lovitt,'^ where the point decided was in reality quite
a different one.

In the opinion of their Lordships the effect of the statute
of 1910, if validly enacted, would have been to preclude the
bank from fulfilling its legal obligation to return their money
to the bondholders, whose right to this return was a civil
right which had arisen and remained enforceable outside the
province. The statute was on this ground beyond the powers

' (1912), A. C. 212; 81 L. J. P. C. 140. A deposit made in a
branch at St. John, New Brunswick, of the Bank of British North
America, whose head office was in England, was held to be situ-
ate in New Brunswick and therefore subject to the succession
duties Act of that province. The depositor had his domicile in
Nova Scotia and died so domiciled. See ante p. 656.

PROPERTY AND CIVIL RIGHTS. 827

of the legislature of Alberta inasmuch as what was sought to
be enacted was neither confined to property an^ivil rights
within the province nor directed solely to matte*»f a merely
local or private nature within it/'

In other words, the bank was directed by the
impugned Act to pay over to the provincial trea-
surer a fund held by the bank outside the province.
In this view, the decision simply overruled the
holding of the Alberta Courts that the fund was
clearly intended by the earlier legislation to be,
and had in fact been, deposited in the province of
Alberta. If such had been the intention of the
Guarantee Act, the bank or the bond-holders had
managed to evade compliance with the statute, and
the bond-holders ' money remained at Montreal and
coul/i not be appropriated by the province of Al-
berta. This, it is conceived, is all that is covered
by the Board's decision, and, if so, there is noth-
ing in the decision to indicate a territorial limita-
tion in the phrase ^^ in the province '' different
from or greater than the essential territorial lim-
itation which exists in the case of any modern state.
The words do not connote any dividing line between
federal and provincial authority. It could not be
contended that the parliament of Canada had
power to legislate in the premises.

Earlier cases touching the exterritorial opera-
tion of provincial legislation may be noted. In an
early case in Ontario a provincial Act which pur-
ported to provide for the devolution and distribu-
tion of the estate of a testator, who had died domi-
ciled in the province, in a way not (as held by the
Courts) in conformity with the testator's will, was
upheld as within provincial competence notwith-
standing the fact that some of the parties entitled
under the will lived, and some of the property was
situate, outside the province; although, on the Act

828 CANADiAN^ constitution:' self-government.

as construed by the Courts, the legislation fell
short of the full effect contended for/

In an action brought by an English bond-holder
against a provincial railway, the plea was ad-
vanced that by a provincial statute, passed after the
sale of the bond sued on, the right of the bond-
holders to receive payment had been commuted
into a right to receive a prescribed number of new
shares on a re-organization of the company. The
plea was held good by Mr. Justice Osier on grounds
thus stated:

" I am of opinion that where debts and other obligations
arise out of, or are authorized 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 pro-
vince.'^^

This decision, it should be noted, was based
upon the view that the Act there impugned was
valid legislation in relation to a provincial railway
(No. 10 of section 92) rather than in relation to
property and civil rights in the province. The
bond-holder's right of action, however, upon his
bond was manifestly a civil right in the province,
and in relation to this right the legislation was
validly passed. The effect of a contrary holding
in crippling the operations of provincial undertak-
ings is strongly put in Mr. Justice Osier's judg-
ment, which is not, it is conceived, in any way
weakened by the recent decision of the Privy Coun-
cil above discussed.

^Re Goodhue, 19 Grant. 366; 1 Cart. 560. Gwynne, J., alone
dissented on the constitutional point.

» Jones V. Can. Central Ry., 46 L. C. Q. B. 250. And see Clark-
son V. Ont. Bank, 15 O. A. R. at p. 190, 4 Cart, at p. 527 ; Re Wind-
sor & Ann. Ry., 4 R. & G. 322; 3 Cart. 399, referred to ante, p. 813.

CHAPTER XLII.

The Provincial Residuum — '^ Generally, all
Matters of a Merely Local or Private Nature
IN the Province/'

In the last chapter the field covered by the pro-
vincial class No. 13 of section 92, ^^ property and
civil rights in the province, ' ' was spoken of as com-
prising the largest residuum of legislative power.
The use of the term ^ residuum ' was not perhaps
quite accurate. The real provincial residuum is
that embraced within the scope of class No. 16 of
section 92 as quoted at the head of this chapter.
The subject has already been largely discussed;^
and it will suffice here to repeat the language of the
Privy Council in the Local Prohibition Case,^ as-
signing to this class the position it must now be
taken to occupy in the scheme of distribution ef-
fected by the British North America Act, and then
to indicate various instances of provincial legisla-
tion which have been avowedly upheld as falling
within the class.

This is the language of their Lordships of the
Privy Council above referred to :

" In section 92, No. 16 appears to them to have the same
office which the general enactment with respect to matters
concerning the peace^ order, and good government of Canada,
so far as supplementary of the enumerated subjects, fulfils
in section 91. It assigns to the provincial legislature all
matters, in a provincial sense local or private, which have
been omitted from the preceding enumeration ; and, although
its terms are wide enough to cover, they were obviously not
meant to include, provincial legislation in relation to the
classes of subjects already enumerated."

* See aikte, p. 452.

2 (1896), A. C. 348; .65 L. J. P. C. 26. Extract ante, p. 432.

830 CANADIAN" CONSTITUTION: SELF-GOVERNMENT.

Their Lordships had held in an earlier part of
the same judgment that the parliament of Canada
does not derive jurisdiction from the ^^ peace,
order, and good government '^ clause of section 91
to deal with any matter which is in substance local
or provincial and does not truly affect the interest
of the Dominion as a whole; to which they added:

" Their Lordships do not doubt that some matters, in
their origin local and provincial, might attain such dimen-
sions as to affect the body politic of the Dominion and to
justify the Canadian parliament in passing laws for their
regulation or abolition in the interest of the Dominion. But
great caution must be observed in distinguishing between that
which is local and provincial and therefore within the juris-
diction of the provincial legislatures, and that which has
ceased to be merely local or provincial and has become matter
of national concern in such sense as to bring it within the
jurisdiction of the parliament of Canada."

The views expressed in the above case were
carried to their logical conclusion in the Manitoba
Liquor Act Case,^ and provincial power to prohibit
the traffic in liquor upheld under this class No. 16
of section 92. All provincial Acts regulating or
prohibiting the traffic in particular commodities, so
long as it is dealt with in its local or provincial
aspect, are intra vires. If licensed for purposes of
provincial revenue the regulation is good under No.
9 of section 92, '^ shop, saloon, tavern, auctioneer,
and other licenses, etc.;* if simply subjected to
regulation or prohibited under penalty the legisla-
tion is valid under this class No. 16. These two
aspects of the question cover all the cases on the
subject of the liquor traffic. The pronouncement of
the Privy Council in the Manitoba Liquor Act Case
as to the present position of the question renders

» (1902), A. C. 73; 71 L. J. P. C. 28.
* See ante, p. 685, note.

THE PROVINCIAL RESIDUUM. 831

it unnecessary to refer to the long list of earlier
cases upon it.

Whether a matter is of a merely local or private
nature from a provincial standpoint, or whether it
has developed into national or extra-provincial
magnitude, must, it seems, be determined by the
courts.^ In an early case, the Privy Council held
that the onus is on those who assert that any matter,
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 ; ^ and the
onus would, it is submitted, be still more hard to
satisfy if such a matter were sought to be placed
under the ** peace, order, and good government ''
clause of section 91/

Other matters which have been held to fall
within this class.^

An Act of the Quebec legislature, passed in aid
of a society in financial straits, forcing commuta-
tion upon certain annuitants.^

An Act of the New Brunswick legislature auth-
orizing a levy to pay a bonus to a railway company
operating a line to connect with a railway in
Maine.'^

Provincial Acts respecting nuisances.^

Provincial game laws.^

''See ante, p. 376.

""L'Union St. Jacques v. Belisle, L. R. 6 P. C. 31; referred to
with approval in Dow v. Black, L. R. 6 P. C. 272 ; 44 L. J. P. C. 52.

' Local Prohibition Case, Man. Liquor Act Case, uM supra.
"Vastly more difficult," is Mr. Justice Anglin's phrase in Re In-
surance Act, 1910, 48 S. C. R. at p. 307.

' In many of these cases other classes were also indicated which
would uphold the impugned Act; but in all of them it was inti-
mated that at all events No. 16 would cover the legislation.

* L' Union St. Jacques v. Belisle, L. R. 6 P. C. 31. See ante, p.
414.

" Dow V. Black, uM supra.

^Ex p. Pillow, 27 L. C. Jur. 216; 3 Cart. 357.

^R. V. Robertson, 3 Man. L. R. 613.

832 CANADIAN constitution: self-government.

A territorial ordinance relating to ferries.*

A provincial Act validating an agreement be-
tween a municipality and an electric light com-
pany.*

A provincial Act authorizing municipalities to
pass by-laws regulating the storage of explosives f
requiring bread to be stamped with the weight of
the loaf f regulating the closing of shops ;^ for Sun-
day closing.^

A provincial Act prohibiting employment of
white girls in restaurants, etc., owned or managed
by Chinamen.^

Suppression of Local Evils : — As intimated on a
previous page," it may now be taken as settled law
that a provincial legislature may validly enact laws
looking to the prevention or suppression of local
evils — local, that is, either in a large provincial
sense or in reference to smaller or municipal areas
within a province — even though the evils are such
as might in other aspects of them be proper sub-
jects for federal legislation, even to the extent of
being made crimes. For example, in the Local Pro-
hihition Case,^ it was said that

^Dinner v. Humherstone, 26 S. C. R. 252; and see Cleveland v.
Melbourne, 2 Cart. 241; 4 Leg. News, 277 (tollbridge case).

*Hull Elec. V. Ottawa Elec. (1902), A. C. 237 ; 71 L. J. P. C. 58;
and see also Smith v. London, 20 Ont. L. R. 133 ; Beardmore v.
Toronto (1910), 21 Ont. L. R. 505. See ante, p. 693.

'J2. V. McGregor (1902), 4 Ont. L. R. 198.

«JB. V. Kay (1909), 39 N. B. 278; Re Bread Sales Act (1911), 23
Ont. L. R. 238.

'Montreal v. Beauvais (1909), 42 S. C. R. 211; Stark v. Schus-
ter (1904), 14 Man. L. R. 672.

'Re Fisher & Carman (1905), 16 Man. L. R. 560. As to Sab-
bath observance legislation, see ante, p. 578 et seq.

» Quong Wing v. R., 49 S. C. R. 440. See ante, p. 486.

^''See ante, p. 486.

^ (1896), A. C. 348; 65 L. J. P. C. 26.

THE PEOVINCIAL EESIDUUM. 833

'*?An Act restricting the right to carry weapons of offence,
or their sale to young persons, would he within the authority
of the provincial legislature. But traffic in arms, or the pos-
session of them under sudh circumstances as to raise a sus-
picion that they were to he used for seditious purposes or
against a foreign state, are matters which, their Lordships
conceive, might be competently dealt with by the parliament
of the Dominion."

And in this passage, it is to be borne in mind,
the Board was not discussing what might be per-
missible federal legislation under ^^ the criminal
law,'' but was distinguishing between the authority
of the federal parliament under the opening resi-
duary clause of section 91, namely, over matters
touching the peace, order, and good government of
the Dominion as a whole and the authority of pro-
vincial legislatures under the residuary clause. No.
16, of section 92, namely, over ^* all matters of a
merely local or private nature in the province.''
The decision of the Committee in the Manitoba
Liquor Act Case ^ settled that the liquor traffic,
viewed as a possible evil, might be the subject of
both federal and provincial legislation. And the
question was further considered in the recent de-
cision of the Supreme Court of Canada in regard to
the provincial prohibition of white girl labour in
establishments under Chinese control.^

In all such cases, of course, provincial laws may
not be repugnant to federal laws upon the same
subject;* but the question has arisen as to how far
federal occupation of the field by legislation which
may possibly be construed as intended to be ex-
haustive should close the door to provincial legis-
lation, either upon phases of the subject not speci-
fically dealt with by the federal law or by way of

» (1902), A. C. 73 ; 71 L. J. P. C. 28.
» Quong Wing v. R., 49 S; C. R. 440.
*Ante, p. 468, et seq.

CAN. CON. — 53

834 CANADIAN constitution: self-government.

implementing provisions making the law, perhaps,
locally more stringent. Lord Herschell is reported
to have intimated snch an opinion upon the argu-
ment of the Local Prohibition Case,^ but the judg-
ment of the Board does not embody any such view,
merely holding that where the Canada Temperance
Act might be brought into force, the provincial
local option law would be superseded.

It has been held, however, in Ontario that the
legislative assembly was within its powers in pro-
viding for the appointment of local officers to see
to the proper enforcement of the Canada Temper-
ance Act and for their payment by local munici-
palities;^ and similar provincial legislation in New
Brunswick has been upheld by the Supreme Court
of that province."^ These decisions, it is conceived,
are of doubtful authority, but they do not really
touch the larger question of the right of a province
to pass such laws as it may see fit for the suppres-
sion of local evils, subject always to such laws being
put into abeyance by similar or repugnant federal
laws. Conceding this right fully, it would not sup-
port provincial laws providing for the execution of
federal laws. Executive action upon federal laws
must be based upon those laws.^

In Quebec, it has been held that the provincial
legislature was within its powers in enacting pro-
visions looking to the restraint of abuses in con-
nection with the sale of liquor for medicinal pur-

^ Supra.

^License Commrs. v. Prince Edward (1879), 26 Grant, 452 —
Spragge, C. ; License Commrs. v. Frontenac (1887), 14 Ont. R. 741
—Boyd, C.

'Ex p. Whalen (1891), 30 N. B. 58b.

* See ante, p. 359. It may be argued, possibly, that the Act
above noted had relation to " the administration of justice in the
province " (No*. 14 of sec. 92), as the officers' duties were chiefly to
institute prosecutions. See Chap. XXVIII., ante, p. 511.

THE PROVINCIAL RESIDUUM. 885

poses under the Canada Temperance Act;^ a de-
cision entirely in line, apparently, with the opinion
of Lord Herschell, noted above.

Occupation of the Field hy Federal Law : — In a
case in British Colnmbia, the question was as to
the validity of certain regulations passed by the
Lieutenant-Governor in Council, under the pro-
vincial Health Act, fixing a standard of purity for
milk offered for sale/° The federal Adulteration
Act provided that the Governor-General in Council
should fix the standard of quality and the limits of
variability in the constituent parts of any article of
food, including milk. The defendant had been con-
victed under the provincial regulations. It was
erroneously assumed before the judge of first in-
stance that the Governor-General in Council had
fixed the standard in the case of milk and upon that
assumption the provincial regulations were held
inoperative; but the opinion was expressed obiter
that, as the federal parliament had placed the duty
of fixing such a standard upon the Governor-
General in Council, such duty could not be under-
taken by or under the authority of provincial legis-
lation and that, therefore, the local regulations
were ultra vires. Upon appeal, this view was ap-
parently doubted, but the order quashing the con-
viction was upheld on other grounds. A somewhat
similar point — though not touching class No. 16 of
section 92 — had arisen in the same province as to
the validity of a provincial Immigration Act which
purported to deny entrance to the province of a

^Matthieu v. Wentworth (1895), Que. L. R. 4 Q. B. 343— Archi-
bald, J. See also R. v. McGregor, 4 Ont. L. R. 198, in which a pro-
vincial Act regarding the storage of explosives was held not re-
pugnant to federal legislation upon the same subject; also R. v.
Stone, referred to ante, p. 571.

'"R. V. Garvin (1908), 14 B. C. 260.

836 CANADIAN constitution: self-government.

class of persons not excluded by the federal Immi-
gration Act. That Act provided for the exclusion
of certain classes and gave power to the Governor-
General in Council to make regulations as to all
others; and this was held to constitute an occupa-
tion of the entire field, with the result that the pro-
vincial Act was held ultra vires as repugnant to
existing federal law.^ The question, it is conceived,
is, in all cases, really one as to the repugnancy of
provincial legislation to federal enactment; but
whether a delegation by the parliament of Canada
of power to make regulations of itself operates as
an occupation of the field, so as to debar local regu-
lation, is very debatable. Mr. Justice Idington has,
in one case, expressed an opinion to the contrary."

^Re Narain Singh (1908), 13 B. C. 477.

^Can. Pac. Ry. v. R. (1907), 39 S. C. R. 476, at p. 490. The
opinion was expressed in a dissenting judgment; but the point is
not touched by the judgment of the Court.

CHAPTER XLIII.

Executive Goveknment.

The Crown's headship in the government of
Canada and its various provinces*/ the necessary
connection which, nnder a system of responsible
parliamentary government such as obtains through-
out the Dominion, must exist between the legislative
and executive departments of government f the con-
sequent right of the federal and provincial execu-
tives to exercise those prerogatives of the Crown
which appertain to' the subjects of federal and pro-
vincial legislative cognizance respectively;^ all
these topics have already been discussed in earlier
chapters. The executive government of the Do-
minion is very largely provided for in Acts of the
parliament of Canada, while provincial legislation
covers in the main the details of executive govern-
ment in the respective provinces. It remains here
to draw attention to certain specific provisions of
the British North America Act dealing with the
position and powers of the Governor-Greneral of
Canada and the provincial Lieutenant-Governors
respectively. There are no Imperial Acts confer-
ring powers, authorities, and functions on colonial
governors generally.* As to Canada, all the statu-
tory powers, etc., conferred by the Constitutional
Act, 1791, and the Union Act, 1840, are included in
the British North America 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.

* See ante, p. 18, et seq.
' See ante, p. 320, et seq.
' See ante, p. 359.
*See ante, p. 148.

838

CANADIAN CONSTITUTION : SELF-GOVERNMENT.

The Goveknok-Geneeal.

The Act, in addition to authorizing many spe-
cific acts on the part of the Governor-General,
describes him in section 10 as an officer *^ carrying
on the government of Canada on behalf of and in
the name of the Queen." This would seem suffi-
ciently wide language to entitle him to exercise all
the Crown's prerogatives in relation to Canada's
sphere of self-government upon the advice, of
course, of the council appointed to ^^ aid and advise
in the government of Canada " (sec. 11), i.e., the
Canadian ministry. No instructions from Imperial
authorities would warrant a contravention of an
Imperial statute.^ Such instructions should, there-
fore, if the above interpretation be sound, be limited
\ to matters of Imperial concern.^ Obviously the
I Governor-General occupies a dual position. He is
\ \ one of the Imperial executive staff, as well as exe-
cutive head of the Dominion. In the former
capacity, he is subject to Imperial executive auth-
j^ ority extending to all those subject matters which

are within the category of matters of Imperial con-
cern, controlled by Imperial legislation, and — 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 superior at home or by
Imperial statutes. In his capacity as executive
head of the Dominion, he acts by and with the ad-
vice of the Queen's Privy Coi;ncil for Canada, and

''Mr. Lefroy's 12th Proposition ("Leg. Power in Can.," 232),
might very properly be extended to a denial of the right of im-
perial officers to interfere in the executive as well as the legisla-
tive department of Canadian government under the British North
America Act. As he says in relation to the latter, so it might be
said as to the former: the proposition is "too obvious to need
enunciation."

'See the emphatic judgment of Higinbotham, C.J., in Mus-
grove's Case, 5 Cart, at p. 578 et seq.; 14 Vic. L. R. at p. 379, et seq.

EXECUTIVE GOVERNMENT. 839

is, in the exercise of his executive authority in re-
lation to matters within the legislative competence
of the Dominion parliament, subject to the control
of that body.

The Act, as already noted,^ makes no express
provision for the appointment of a Governor-
General; but in 1878, Letters Patent, under the
Great Seal of the United Kingdom were issued,
and are still in force, ^^ making effectual and per-
manent provision for the office of Governor-
General " of Canada. They provide for the ap-
pointment, from time to time, by commission under
the Sign Manual and Signet, ^^ of the person who
shall fill the said office, ^^ and enumerate the powers
and duties which should devolve upon him.^ He is
authorized and commanded to do and execute in
due manner all things that belong to his command
and trust according:

I. To the several powers and authorities granted or ap-
pointed him by virtue of:

(a) The British North America Act, 1867.

(b) The Letters Patent (now being recited).

II. To such instructions as may from time to time be
given to him,

(a) Under the Sign Manual and Signet.

(b) By order of Her Majesty's Privy Council.

III. To such laws as are or shall hereafter be in force in
Canada.

By the Act itself, the Governor-General is en-
trusted with the following prerogatives, the manner
of their exercise being to some extent defined: —

^ See ante, p. 27.

'The Letters Patent and the general "instructions" accom-
panying them are printed in Appendix. For an account of the
correspondence which lead up to their issue, see Todd, "Pari.
Gov't in Brit. Col." (1st ed.), 77, et seq.

840 CAN-ADiAN constitution: self-government.

Appointments to Office.

The vast majority of offices in connection with
the government of Canada are filled by persons
appointed under statutory authority, by the
Grovernor- General in Council; but there are still a
few offices to which the Governor may legally make
appointments without, or even contrary to, the ad-
vice of the Queen's Privy Council for Canada,
although, of course, the making of such appoint-
ments mero ipsius motu would be a flagrant subver-
sion of the right of local self-government long since
fully accorded to Canada. But, confining attention
to the British North America Act, the only officer
therein mentioned in whose appointment the
Governor-General and the Privy Council must con-
cur is the Lieutenant-Governor of a Province." Of
the few officers whose appointment, under the Act,
is in the hands of the Governor-General personally,
the following is a complete list:

1. Members of the Queen's Privy Council for

Canada. — section 11. In various Acts of the
parliament of Canada, provisions are con-
tained as to the appointment of the ministers
(or other officers) who shall preside over
the various departments of state. In all,
the appointment is left in the hands of the
Governor-General personally. This is ex
necessitate in the case* of a change in the
entire administration, but the position is
the same in every case — the appointment is,
■ legally considered, the act of the Governor-

General alone.

2. Senators. — s. 24.

3. Speaker of the Senate. — s. 34.

»Sec. 58.

EXECUTIVE GOVERNMENT. 841

4. Judges. — As enumerated in s. 96.

5. Deputy Governor-General. — s. 14, and Letters

Patent, clause VI.^'

The Summoning of Pakliament.

38. The Govemor-Greneral shall from time to time, in the
Queen's name, by instrument under the Great Seal of Canada,
summon and call together the House of Commons.

This section would seem to carry the governor's
powers no further than the Letters Patent ^ alone
would have carried them, and, therefore, as said by
Sir John Bourinot : ^ ^ The summoning, prorogation,
and dissolution of parliament in Canada are
governed by English constitutional usage. Parlia-
ment can only be legally summoned by authority of
the Crown.'' After the expiry of the House of
Commons by lapse of time or dissolution, there
must be a new House elected by the people accord-
ing to law before there can be an effective exercise
of the prerogative right to summon parliament;
and it is worthy of note that in connection with
such election certain powers are vested in the
Governor-General and certain duties imposed upon
him by Canadian legislation in the exercise of
which he, in contemplation of law, acts personally.
Upon him devolves the duty of fixing the date for
the holding of such election — the rule is the same
as to bye-elections— and by him the returning officer
of each electoral district is appointed.^ This, how-
ever, by the way. The House of Commons being
so elected, parliament can meet together for the
despatch of business only upon the summons of
the Governor-General. The word ^* summon " is
also used in the Act (sec. 24) in reference to the
appointment of senators.

i» See R. V. Amer, 42 U. C. Q. B. 391; referred to ante, p. 121.

* See infra.

»R. S. C. (1906), c. 6.

842 CANADIAN constitution: self-government.

The exekcise of the peekogative eights of the
Ceown as a constituent beanch of the paeliament
OF Canada.^

The disallowance of peovincial Acts.*

By the Letters Patent, constituting the office of
Governor-General, he is authorized and em-
powered :

" III. ... 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 constituted or ap-
pointed by us.

" IV. ... So far as we lawfully may, upon sufficient
cause to him appearing, to remove from his office or to sus-
pend from the exercise of the same, any person exercising any
office. . . r

The exercise of the prerogative right of the
Crown in the appointment to and removal from
office in Canada, is now (with the exception of this
one office of Governor-General) entirely regulated
by statutes, Imperial and Colonial.*^

"V. . . . To exercise all powers lawfully belonging to
us, in respect of the summoning, proroguing or dissolving
of the parliament of our said Dominion."

The exercise of the power of summoning has
been the subject of legislative regulation;^ the other
two — of proroguing and dissolving — exist as at
common law. The '' conventional " limitations are
many, the legal right is absolute.

' Section 55. See ante, p. 25 et seq.

* Section 90. See ante, p. 149 et seq.

■* See the opinion of Sir James Scarlett CLord 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 (1S27)— Forsyth, 172.

« B. N. A. Act, 1867, ss. 20 and 38. See above.

EXECUTIVE GOVERNMENT. 843

By his ' ^ instructions ■ '^ : —

Attention need only be drawn to the 5th clause
making provision as to the exercise of the prero-
gative of pardon. The Governor-General is de-
barred from exercising this prerogative without
first receiving the advice, in capital cases, of the
Privy Council for Canada; in other cases, of one
at least of his ministers ; except in cases where the
interests of the Empire or of some country other
than Canada might be directly affected; in which
exceptional cases, the Governor-General shall *' take
those interests specially into his own personal con-
sideration, in conjunction with such advice as afore-
said.*' In other words, in those exceptional cases,
he may disregard the advice offered;^ in all other
cases, he must follow it.

Pre-Confedeeation Powees.

In so far as powers and authorities were vested
by statute law in the governors of the pre-con-
federation' provinces, they had been conferred upon
the holder of a particular office. This office was
now to be divided and a statutory re-allotment of
powers, so to speak, had to be made. The British
North America Act effects no division of these
powers, but merely of the field for their exercise.
By section 12 they are all vested in the Governor-
General so far as capable of being exercised in re-
lation to the government of Canada ; and by section

' I.e., the general " instructions " which accompany the Letters
Patent: see Appendix. As to how far such instructions are justi-
fiable in relation to matters within the sphere of colonial self-gov-
ernment: see ante, p. 362, and particularly Musgrove's Case, 5
Cart. 556, at p. 578, et seq.

' That is to say, he acts in such case as an imperial officer upon
imperial considerations. On the general question of the preroga-
tive of mercy, see the Pardoning Power Case, 23 S. C. R. 458 ; Ex
p. Armitage (1902), 5 Can. Crim. Cas. 342.

844 CANADIAN CONSTITUTION : SELF-GOVERNMENT.

65 they are vested in the Lieutenant-Governors of
Ontario and Quebec so far as capable of exercise
in relation to the government of those provinces
respectively. The power of the Dominion Parlia-
ment to alter or abolish these powers is, of course,
limited to their abolition or alteration so far as
they are exercisable in relation to the government
of Canada.^ Section 65 confers like powers on the
provincial legislative assemblies, so far as these
powers are exercisable in relation to the govern-
ment of the provinces of Ontario and Quebec. This
subject has, however, already been sufficiently dis-
cussed.^^

Lieutenant-Governors.

A provincial Lieutenant-Governor is described
in section 62 of the British North America Act as
an officer ^^ carrying on the government of tHe pro-
vince ''; and notwithstanding the absence of the
phrase ^' on behalf of and in the name of the
Queen," which appears in section 10 in reference
to the Governor-General, it is now authoritatively
settled that a Lieutenant-Governor when appointed
is as much the representative of the Crown for all
purposes of provincial government as the Gov-
ernor-General himself is for all purposes of Dom-
inion government.^

In each province the Lieutenant-Governor acts
by and with the advice of an executive council,
that is to say, the provincial ministry. The only
powers which under the Act a Lieutenant-Gov-
ernor may exercise otherwise than by order-in-

» Section 129. DoMe v. Temp. Board, 7 App, Cas. 136; 51 L. J.
P. C. 26. Local ProMMtion Case (1896), A. C. 343; 65 L. J. P. C.
26.

"See ante, p. 405 et seq.

^See ante, p. 359.

EXECUTIVE GOVERNMENT. 845

council are those conferred by section 63, in refer-
ence to the appointment of members of the Execu-
tive Councils of Ontario and Quebec; by section
72, in reference to the appointment of legislative
councillors in Quebec ; by sections 82 and 85, in re-
ference to the summoning and dissolving of the
provincial legislative assembly; and by section 90,
the giving or withholding of the assent of the
Crown to bills passed by the legislative assembly.
But, with regard to all of these, with the exception
of the last named, constitutional usage requires
that all such acts must be done upon the advice of
ministers having the confidence of the legislature
of the province. As to the appointment pf mem-
bers of the Executive Council, the Lieutenant-Gov-
ernor must ex necessitate J so far as the legal posi-^ ; ^^
tion is concerned, appoint, without advice, the new 1^ I
members upon the defeat and resignation of an en- (^^tAH^^
tire administration; but, even in such cases, the in- ^^Jiir^
coming ministry or Executive Council must accept (^ ^-yl^
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 the assent of the Crown to bills
passed by the legislative assembly of a province,
a Lieutenant-Governor acts, it is conceived, as a
member of the Dominion executive staff, subject to
instructions from the Governor-General, although,
in practice, the supervision of provincial legisla-
tion entrusted to the Dominion executive is exer-
cised after the event, by disallowance, rather than
before the event, by instructions to withhold the
Crown's assent. The relation, indeed, which exists
between the Dominion government and a provin-
cial Lieute^nant-Governor is somewhat ancertain.
The Privy Council has spoken of the Governor-
General in Council as a body having no powers

846 CANADIAN constitution: self-government.

and no functions in regard to a Lieutenant-Gov-
ernor except to act as representatives of the Crown
in appointing Mm.^

Section 14 of the Act (coupled with the Letters
Patent) empowers the Governor-General to ap-
point a Deputy Governor-General. No section, it
will be noticed, conveys such power to a Lieuten-
ant-Governor, and as to him, therefore, the maxim
delegatus non potest delegari applies. Section 67
confers power upon the Governor-General in Coun-
cil to appoint an administrator to execute the of-
fice and functions of a Lieutenant-Governor in case
of absence or illness ; and section 92 expressly pro-
hibits a provincial legislature from amending the
provincial constitution *^ as regards the office of
Lieutenant-Governor.'' A provincial legislature
may, it has been held, confer upon a Lieutenant-
Governor power to execute functions *^ germane to
the office, ' ' ^ but any general delegation by him of
the duties of his office would seem contrary to the
spirit of the Federation Act.

^See ante, p. 27.

^Per Boyd, C, in the Pardoning Power Case, 20 O. R. 222; and
see the Q. C. Case (1898), A. C. 247 ; 67 L. J. P. C. 17.

CHAPTER XLIV.

The Nokth-West Terkitokies.

The future extension of the Dominion of Can-
ada so as ultimately to embrace the whole of
British North America from ocean to ocean was
anticipated by the framers of the British North
America Act.^ After its passage the Dominion
government lost no time in setting to work to se-
cure control of the vast territories lying between
Ontario and British Columbia. At the very first
session of the parliament of Canada an address ^
was passed by both Houses representing the ex-
pediency, both from a Canadian and an Imperial
point of view, of an early extension of the Dom-
inion to the shores of the Pacific. This address
pointed out the necessity for a stable government
and the establishment of institutions analogous to
those of the older provinces, in order to the deve-
lopment of the agricultural, mineral, and commer-
cial resources of the Great Lone Land, and prayed
that Her Majesty might be pleased (pursuant to
section 146 of the Act) '' to unite Rupert's Land
and the North- West Territory with this Dominion,
and to grant to the parliament of Canada author-
ity to legislate for their future welfare and good
government. ' '

That part of these territories ^ known as
Rupert's Land had been under the control of the
Hudson's Bay Company ever since, in 1670, King

^Sections 146 and 147; in appendix. See ante, p. 305.

= See Dom. Stat, 1872, p. Ixiii.

» See a very interesting article in Western Law Times, Vol. I.,
June, 1890, which contains in brief an account of the early organ-
ization of these territories under the H. B. Co. ; also the author's
" History of Canada."

848 CAN^ADIAN CONSTITUTION : SELF-GOVERNMENT.

Charles II. granted Ms charter to those ^^ adven-
turers trading into Hudson's Bay." As lords-pro-
prietors the company had full right of government
and administration therein subject to the sover-
eignty of England. The boundaries- of Eupert's
Land were never accurately determined. Speaking
roughly, the country known by that name com-
prised the territory watered by streams flowing
into Hudson's Bay; but the company had extended
their operations and assumed jurisdiction over
other parts of the North-Western Territory.

The existence of the Hudson Bay Company's
charter rendered it necessary, in the view of the
home government, that terms should first be set-
tled with that company for a surrender of *^ all the
rights of government " and other rights, privi-
leges, etc., in Rupert's Land enjoyed by the com-
pany under their charter, other than their trading
and commercial privileges. To this end, the
Rupert's Land Act, 1868,* was passed by the Im-
perial 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 the Dominion parliament for the admission of
Rupert's Land and embodied in an address." The
5th section of this Act provided :

"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 become part of the Dominion of Canada ; and there-
upon it shall be lawful for the parliament of Canada from the
date aforesaid to make, ordain, and establish within the land
and territory so admitted as aforesaid all such laws, institu-
tions, and ordinances, and to constitute such courts and

* 31-32 Vict, c. 105 (Imp.).

THE NORTH-WEST TERRITORIES. 849

officers as may be necessary for the peace, order and good gov-
ernment of Her Majesty^s subjects and others therein; pro-
vided that until otherwise enacted by the said parliament of
Canada all the powers, authorities and jurisdiction of the
several courts 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 the terms agreed upon
by the Hudson's Bay Company and the Canadian
delegates, the company surrendered all their rights
of government and other rights, 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. The terms of surrender
as embodied in the Imperial order in council finally
passed were simply the price paid by the Dominion
for the surrender, and are not here material.^ The
order in Council — 23rd June, 1870 — which finally
admitted Rupert's Land and the North- West Ter-
ritory to the 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 government " thereof; but it made no further
provision as to legislation for Rupert's Land, be-
cause that was provided for by the section of the
Rupert's Land Act, 1868, already quoted. As to
the North-Western Territory proper, therefore,

• As to the company's exemption from " exceptional " taxation,
see McGowan v. H. B. Co., 5 Terr. L. R 147; H. B. Co. v. Atty.-
Gen. of Manitoba, Man. R. temp. Wood, 209.

CAN. CON. — 54

850 CANADIAN constitution: self-government.

the legislative power was conferred by the order
in Council of 23rd June, 1870, operating as an Im-
perial Act by virtue of section 146 of the British
North America Act; while as to Eupert's Land the
legislative power was conferred by the Eupert's
Land Act, 1868. Nothing, however, turns upon
this distinction, for by the British North America
Act, 1871,® full legislative power was given to the
parliament of Canada over all territories not in-
cluded 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 entirely
disappeared.

Anticipating the admission of these territories,
the Dominion parliament in 1869 passed '^ An Act
for the temporary government of Eupert^s Land
and the North-Western Territory, when united
with Canada ' ' ^ providing for the appointment of
a Lieutenant-Governor to administer the govern-
ment of these territories under instructions from
the Governor-General in Council. By order in
Council the Lieutenant-Governor might be em-
powered (subject to such conditions and restric-
tions as might be imposed by such order in coun-
cil), '' 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 subjects and
others therein. '^ The Lieutenant-Governor was to
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

•34 & 35 Vict, c. 28 (Imp.). In appendix.
^32-33 Vict, c. 3 (Dom.).

THE NORTH-WEST TERRITORIES. 851

order in council, i.e., by the Dominion government.
By the 5th and 6th sections of this Act, it was pro-
vided :

"All the laws in force in Eupert'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
admission approved of hy the Queen tinder 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
Eupert's Land and the North- Western Territory at the timi}
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 ol* 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."

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 fjor the govern-
ment of the province of Manitoba. ' ^ ® This Act
was validated by the British North America Act,
1871.* As to the remaining portions of the terri-
tories 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 Lieu-
tenant-Governor of the North- West Territories —
as such remaining portions were now to be called.
With this amendment, the Act of 1869 was con-
tinued to the end of the session of 1871.

Confining attention, then, to the North- West
Territories; when next the parliament of Canada

•"The Manitoba Act," 33 Vict., c. 3 (Dom.). In appendix.
•34 & 35 Vict, c. 28 (Imp.). In appendix.

852 CANADIAN CONSTITUTION : SELF-GOVERNMENT.

met, these territories were part of the Dominion,
and much of the legislation of that session applied
to them equally with the other parts of Canada.
Prom that time until the creation of the provinces
of Alberta and Saskatchewan in 1905 ^° the Dom-
inion parliament had the power to legislate for the
North- West Territories in reference to all matters
within the ken of a colonial legislature; and al-
though, as will appear, large powers of local self-
government were from time to time conceded to
the inhabitants of these Territories, they were held
at the will of the parliament of Canada. And as
cases may arise in which the rights of litigants will
depend on the law as it stood at some particular
time since 1870, it may be well to state shortly the
changes which have been made from time to time
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, 1870, these Territories be-
came part of Canada. The Acts of the two pre-
vious sessions expiring at the end of the session of
1871, a permanent Act was passed,^ containing the
same provisions as had been made by those Acts;
and the British North America Act, 1871, made the
general provision above noted that '' the parlia-
ment of Canada may from time to time make pro-
vision for the administration, peace, order, and
good government of any territory not for the time
being included in any province ' ' ^— a provision
which, of course, still stands good as to the pre-
sent North- West Territories, the Yukon Territory
and Keewatin.

"See ante, p. 19.

^34 Vict. c. 16 (Dom.).

^See ante, p. 850. ,

THE NORTH-WEST TERRITORIES. 853

Period from 15th July, 1870, to 1st November,

1873,

During this period, then, legislative authority
over the North- West Territories was exercised or
exercisable — in the order of efficacy —

(a) By the Imperial parliament:

(b) By the parliament of Canada:

(c) By the Lieutenant-Governor of Manitoba in
relation only to such matters as were designated
by order of the Governor-General in Council. Noth-
ing, however, was done toward the government of
the North-West Territories by local authority, un-
til December, 1872, when Lieutenant-Governor
Morris of Manitoba was commissioned to act as
Lieutenant-Governor of these Territories, with a
council of eleven members ^ to aid him in the ad-
ministration of affairs there. By order in council
of date 12th February, 1873, it was ordered:

" 1. That the Lieutenant-Governor of the North-West
Territories, by and with the advice of the said council, shall
be, and he is hereby authorized to make provision for the
administration of justice in the said territories, and gener-
ally to make and establish such ordinances as may be neces-
sary for the peace, order, and good government of the said
North-West Territories and of Her Majesty's subjects and
others therein. Provided, first, that no such ordinance shall
deal with or affect any subjects which are beyond the juris-
diction of a provincial legislature, under the ^ British North-
America Act, 1867,' and provided, second, that all such ordi-
nances shall be made to come into force only after they have
been approved by the Governor-General in Council, unless
and in case of urgency, and in that case the urgency shall be
stated on the face of the ordinance."

• By 36 Vict., c. 5, the membership of the council was increased
to a maximum of 21 instead of 15, the minimum remaining at 7.

854 CANADIAN constitution: self-government.

With further provision for the transmission of
all ordinances to the Grovernor-General, who should
be at liberty to disallow any of them at any time
within two years from their passage.

Period from 1st November, 1873, to 7th October,

1876.

On the 1st of November, 1873, the Act 36 Vic.
c. 34, came into force. It provided — probably to re-
move doubts — that the local legislation on the var-
ious subjects which by order in council to that date
had been committed to the legislative ken of the
Lieutenant-Governor and his council, should there-
after be passed by the Lieutenant-Governor, by
and with the advice and consent of the council. In
relation to all matters not so committed, legislative
power was by the Act conferred on the Governor-
General in Council. The legislative power of both
the Dominion cabinet and the Lieutenant-Governor
in Council — each within its respective sphere —
might be exercised in the way of extending to the
Territories general Acts of the parliament of Can-
ada with such modification as might be thought de-
sirable, or in the way of repealing such general
Acts so far as they might apply to the Territories ;
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 ex-
press application to the Territories; (2) alter the
punishment provided 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 dollars; or
(4) appropriate any monies or property of the
Dominion without the authority of the Dominion
parliament. All local legislation was to be subject
to disallowance within two years after its passage.

THE NORTH-WEST TERRITORIES. 855

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 re-
lation to all matters not committed to the Lieuten-
ant-Governor and his council; which in reality
placed the entire legislative power (subject to the
foregoing) in the hands of the Dominion govern-
ment if it had chosen to exercise it, for the powers
of the Lieutenant-Governor were themselves de-
fined by the order in council referred to above *
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 Lieutenant-Governor in Council, nor was the
legislative power of the Governor-General in Coun-
cil exercised, so that this and the earlier period
are practically one. Dominion legislation of a
general character passed during this period would
prima facie apply to the North-West Territories.^

Period from 7th October, 1876, to 28th April, 1877.

In 1875 was passed '^ The North- West Terri-
tories 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-Governor was appointed,
and the first legislative session took place in the
Territories. The council was reduced in number

* Ante, p. 852.

''See particularly 36 Vict, c. 35, as to the Administration of
Justice. *!

856 CANADIAN constitution: self-government.

— so far as appointed members were concerned —
to ^ye 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, however, the section of
the Act defining the legislative powers of the Lieu-
tenant-Governor in Council,^ was in force for only
some six months, and as a reference to the ordin-
ances passed at the session held while it was so in
force discloses that nothing was done in the way
of legislation which was not fully justified by the
powers conferred by the Act, it is not thought
necessary to quote the section. By the 6th section
of this Act all laws and ordinances then in force in
the Territories were to continue until altered or
repealed by competent authority. The Governor-
General in Council was empowered ' 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 estab-
lish, as population increased, electoral 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 as-
sembly take its place. In the electoral districts the
Lieutenant-Governor in Council might impose
direct taxation and license fees for raising a rev-
enue for the local and municipal purposes of each
district. Power was also given to establish muni-
cipalities in the electoral districts, with powers of
municipal taxation to be prescribed by ordinance
of the Lieutenant-Governor in Council. In refer-
ence to education, it was provided that any legis-
lation should be subject to the right of the minority
in any district, whether Protestant or Roman Cath-
olic, to establish separate schools, the supporters

' 38 Vict, c. 49, s. 7 ; repealed by 40 Vict, c. 7.
'Section 8.

THE NORTH-WEST TERRITORIES. 857

of which should be exempt from taxation for the
support of the schools established by the majority.
The Act also contained much legislation upon such
general topics as real estate and its descent, wills,
married women, registration of deeds, etc. Provi-
sion was made for the administration of justice
through the medium of local Courts presided over
by 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 28th April, 1877, to 18th February,

1887:^

The North-West Territories Act, 1875, was, as
above intimated, amended in a most important par-
ticular by 40 Vic. c. 7, passed about six months
after the Act of 1875 came into operation. The sec-
tion defining the legislative powers of the Lieuten-
ant-Governor in Council was repealed and the fol-
lowing section substituted therefor:

'^ 7. The Lieutenant-Governor in Council, or the Lieuten-
ant-Governor by and with the advice and consent of the legis-
lative assembly, as the case may be, shall have such powers to
mark ordinances for the government of the North-West Ter-
ritories 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 ninet}^-
second section of ' The British North America Act, 1867,'
upon the legislatures of the several provinces of the Do-
minion :

" 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 w^hich or any part of which may ^e at any time

''^ See note on p. 860, post.

858 CANADIAN constitution: self-government.

made by the Governor in Council, applicable to or declared
to be in force, in the said Territories, 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 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 conveniently may be after the making
and enactment thereof respectively."

On the 11th of May, 1877, an order in council
was passed which, after reciting the statutes of
1875 and 1877, ran thus:

" Now, in pursuance of the powers by the said statute con-
ferred, 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 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 officers ;

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."

4. The issue of shop, auctioneer and other licenses, in
order to the raising of a revenue for territorial or municipal
purposes ;

5. The solemnization of marriages in the Territories ;

6. The administration of justice, including the constitu-
tion, organization and maintenance of territorial courts of
civil jurisdiction;

7. The imposition of punishment by fine, penalty or im-
prisonment for enforcing any territorial ordinance;

THE NORTH-WEST TERRITORIES. 859

8. Property and civil rights in the Territories, subject to
any legislation by the parliament of Canada upon these sub-
jects, and —

9. Generally on matters of a merely local or private na-
ture in the Territories.

These Acts were from time to time amended,
consolidated and revised, but, substantially, the
legislative power of the Lieutenant-Governor in
Council continued to be governed by the above sec-
tion and the order in council quoted until 1888 —
indeed, one may say, until 1891, for, upon the
establishment of a legislative assembly in the
former year, its powers of legislation were not in-
creased beyond those exercisable before its crea-
tion by the Lieutenant-Governor in Council.

In 1880, by 43 Vic. c. 25, previous Acts were
amended and consolidated. The time for disallow-
ing territorial ordinances was shortened to one
year, and the clauses of the Act of 1875 relating to
municipalities eliminated, being deemed, no doubt,
to be covered by the order in council above quoted.^
The participation of Manitoba judges in the ad-
ministration of justice in the Territories was abol-
ished except in the matter of appeals in capital
cases.^

On June 26th, 1883, a new order in council was
promulgated defining the powers of the Lieuten-
ant-Governor, whether acting in council or by and
with the advice and consent of the legislative as-
sembly ; ^^ 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 :

" 3. Municipal institutions in the Territories, subject to
any legislation by the parliament of Canada heretofore or
hereafter enacted :

" See 45 Vict, c. 28, and 47 Vict, c. 23.

•See also 48-^9 Vict, c. 51.

" No assembly was constituted until 1888 ; see post.

860 CANADIAN constitution: self-government.

'^4. The issue of shop, auctioneer, and other licenses,
except licenses for the sale of intoxicating liquors, in order
to the raising of a revenue for territorial or municipal pur-
poses.""

In 1886, important legislation was enacted (49
Vie. c. 25), bnt it was carried at once into the Ee-
vised Statutes of that year.^

From that time until 1905 the position of these
territories was defined by ** The North- West Ter-
ritories Act '' (E. S. C. 1886, c. 50), and amend-
ments thereto.^ The Yukon Territory was carved
out of the North-West Territories in 1898, and spe-
cial provision has from time to time been made for
the administration of affairs there.

Alberta and Saskatcheivan.

The British North America Act, 1871, which
validated the Manitoba Act ^ by which the parlia-
ment of Canada had purported to create the pro-
vince of that name, contained this further provi-
sion :

2. The Parliament of Canada may from time to time
establish new Provinces in any territories forming for the
time being part of the Dominion of Canada, but not included
in any Province thereof, and may, at the time of such estab-
lishment, make provision for the constitution and adminis-
tration of any such Province, and for the passing of laws for
the peace, order, and good government of such Province, and
for its representation in the said Parliament.

Acting under this authority the parliament
of Canada in 1905 established the provinces of

*It was proclaimed 18th February, 1887; the R. S. C. (1886)
took effect 1st March, 1887.

* The council was replaced by a legislative assembly in 1888 —
54-55 Viet., c. 22. Section 6 of that Act defines the assembly's
jurisdiction.

^Ante, p. 851.

THE NORTH-WEST TERRITORIES. 86.1

Alberta and Saskatchewan.* In the same session the
North- West Territories Act was largely remodel-
led, what was left of those^Territories being placed
under the local control of a Commissioner and
Council.^ It is not thought necessary to go further
into detail as the statute is readily accessible.

Upon the establishment of the two new provinces
the existing laws were, of course, continued. The
Ordinances of the North- West Territories thus be-
came two bodies of provincial law, each having no
different or more extensive effect than if it were
made up of Acts of the legislatures of each of the
new provinces respectively.^

In discussing the position of Alberta and
Saskatchewan, the question has been suggested
as to the power of the parliament of Canada
to establish a province with a sphere, of auth-
ority smaller than or different from that indi-
cated for a province by the original British North
America Act, 1867. By the Act of 1886 all the Acts
so entitled are to be read together. By section 6
of the Act of 1871 it is provided:

6. Except as provided by the third section of this Act,^ it
shall not be competent for the Parliament of Canada to alter
the provisions of the last mentioned Act of the said Parlia-
ment, in so far as it relates to the Province of Manitoba, or
of any other Act hereafter establishing new Provinces in the
said Dominion, subject always to the right of the Legislature
of the Province of Manitoba to alter from time to time the
provisions of any law respecting the qualification of electors
and members of the Legislative Assembly, and to make laws
respecting elections in the said Province.

*4 & 5 Edw. VII., c. 3 (Alberta); id. c. 42 (Saskatchewan).
These Acts will be found in the appendix.

»See R. S. C. (1906) c. 62. See also c. 63 as to the Yukon
Territory.

'Jones V. TwoUey, 1 Alberta L. R. 267.

^ This section relates to alterations of boundary by consent.
See appendix.

862 CANADIAN constitution: self-government.

In other words, an Act of the parliament of
Canada establishing a province becomes in effect
an Imperial Act or, at least, an Act which can be
altered only by imperial legislation. No question
can arise as to the Manitoba Act as that was ex-
pressly validated by the British North America
Act, 1871, from which sections 2 and 6 are above
quoted; but as to Alberta and, Saskatchewan the
question is perhaps debatable, as to the validity
of the restrictive clauses. The wording of section
2, however, indicates a very wide power in the,
Dominion parliament in moulding the constitutional
form of government in a new province. Sit lux!

APPENDICES.

A. CONSTITUTIONAL STATUTES. ORDERS IN
COUNCIL, &c.

1. THE BRITISH NORTH AMERICA ACT, 1867.

Imperial Act 30-31 Vict. Cap. 3.
An Act for the Union of Canada, Nova Scotia, and New Bruns-
wick, and the Oovernment thereof; and for purposes con-
nected therewith.

[29th March, 1867.]

Whereas the Provinces of Canada, Nova Scotia, and New
Brunswick, have expressed their desire to be federally united
into one Dominion under the Crown of the United Kingdom of
Great Britain and Ireland, with a constitution similar in prin-
ciple to that of the United Kingdom;

And whereas such a Union would conduce to the welfare
of the Provinces and promote the interests of the British Empire;

And whereas on the establishment of the Union by authority
of Parliament it is expedient, not only that the Constitution
of the Legislative Authority in the Dominion be provided for,
but also that the nature of the Executive Government therein
be declared;

And whereas it is expedient that provision be made for the
eventual admission into the Union of other parts of British
North America;

Be it therefore enacted and declared by the Queen's most
Excellent Majesty, by and with the advice and consent of the
Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as
follows :

I. — Prpliminaby.

1* This Act may be cited as The British North America Act,
1867.

2. The provisions of this Act referring to Her Majesty the
Queen extend also to the heirs and successors of Her Majesty,
Kings and Queens of the United Kingdom of Great Britain
and Ireland.

864 CANADIAN CONSTITUTION-: APPENDIX A.

II. — Union.

3. It shall be lawful for the Queen, by and with the advice
of Her Majesty's Most Honorable Privy Council, to declare
by Proclamation that on and after a day therein appointed,
not being more than six months after the passing of this Act,
the Provinces of Canada, Nova Scotia, and New Brunswick
shall form and be one Dominion under the name of Canada ;
and on and after that day those three Provinces shall form
and be one Dominion under that name accordingly.

4. The subsequent provisions of this Act shall, unless it is
otherwise expressed or implied, commence and have effect on
and after the Union, that is to say, on and after the day ap-
pointed for the Union taking effect in the Queen's Procla-
mation; 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.

5. Canada shall be divided into four Provinces, named On-
tario, Quebec, Nova Scotia, and New Brunswick.

6. The parts of the Province of Canada (as it exists at the
passing of this Act) which formerly constituted respectively
the Provinces of Upper Canada and Lower Canada shall be
deemed to be severed, and shall form two separate Provinces.
The part which formerly constituted the Province of Upper
Canada shall constitute the Province of Ontario; and the part
which formerly constituted the Province of Lower Canada
shall constitute the Province of Quebec.

7. The Provinces of Nova Scotia and New Brunswick shall
have the same limits as at the passing of this Act.

8. In the general census of the population of Canada which
is hereby required to 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 dis-
tinguished.

III. — Executive Power.

9. The Executive Government and authority of and over
Canada is hereby declared to continue and be vested in the
Queen.

10. The provisions of this Act referring to the Governor
General extend and apply to the Governor General for the time
being of Canada, or other the Chief Executive Officer or Ad-
ministrator, for the time being carrying on the Government of
Canada on behalf and in the name of the Queen, by whatever
title he is designated.

BRITISH NORTH AMERICA ACT, 1867. 865

11. There shall be a Council to aid and advise in the Gov-
ernment of Canada, to be styled the Queen's Privy Council for
Canada; and the persons who are to be members of that Coun-
cil shall be from time to time chosen and summoned by the
Governor General and sworn in as Privy Councillors, and
members thereof may be from time to time removed by the
Governor General.

12. All powers, authorities, and functions which under any
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 Upper Canada, Lower Canada, Canada, Nova
Scotia, or New Brunswick, are at the Union vested in or exer-
cisable 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 indi-
vidually, shall, as far as the same continue in existence and
capable of being exercised after the Union in relation to the
Government of Canada, be vested in and exercisable by the
Governor General, with the advice or with the advice and con-
sent of or in conjunction with the Queen's Privy Council for
Canada, or any members thereof, or by the Governor General
individually, as the case requires, subject nevertheless (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
Parliament of Canada.

13. The provisions of this Act referring to the Governor
General in Council shall be construed as referring to the Gov-
ernor General acting by and with the advice of the Queen's
Privy Council for Canada.

14. It shall be lawful for the Queen, if Her Majesty thinks
fit, to authorize the Governor General . from time to time to
appoint any person or any persons jointly or severally to be
his Deputy or Deputies within any part or parts of Canada^
and in that capacity to exercise during the pleasure of the
Governor General such of the powers, authorities, and 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 appointment of such a Deputy or Deputies shall not affect
the exercise by the Governor General himself of any power,
authority or function.

CAN. CON. — 55

866 CANADIAN CONSTITUTION: APPENDIX A. ,

15. The Command-in-Chief of the Land and Naval Militia,
and of all Naval and Military Forces, of and in Canada, is
hereby declared to continue and be vested in the Queen.

16. Until the Queen otherwise directs the seat of Govern-
ment of Canada shall be Ottawa.

IV. — Legislative Power.

17. There shall be one Parliament for Canada, consisting of
the Queen, an Upper House styled the Senate, and the House
of Commons.

[Section 18 was repealed dy Imperial Act S8 and 39 Vict.
c. S8, and the following section su1)stituted therefor.]

18. The privileges, immunities, and powers to be held, en-
joyed and exercised by the Senate and by the House of Com-
mons and by the members thereof respectively shall be such as
are from time to time defined by Act of the Parliament of
Canada, but so that any Act of the Parliament of Canada defining
such privileges, immunities and powers shall not confer any
privileges, immunities or powers exceeding those at the passing
of such Act held, enjoyed, and exercised by the Common House
of Parliament of the United Kingdom of Great Britain and Ire-
land and by the members thereof.]

19. The Parliament of Canada shall be called together not
later than six months after the Union.

20. There shall be a Session of the Parliament of Canada
once at least in every year, 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.

The Senate.

21. The Senate shall, subject to the provisions of this Act,
consist of seventy-two members, who shall be styled Senators.

22. In relation to the constitution of the Senate, Canada
shall be deemed to consist of three divisions —

1. Ontario;

2. Quebec:

3. The Maritime Provinces, Nova Scotia and New 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
representing Nova Scotia, and twelve thereof representing New
Brunswick.

In the case of Quebec each of the twenty-four Senators repre-
senting that Province shall be appointed for one of the twenty-

BRITISH NORTH AMERICA ACT, 1867. 867

four Electoral Divisions of Lower Canada specified In Schedule
A. to chapter one of the Consolidated Statutes of Canada.

23. The qualification of a Senator shall be as follows: —

1. He shall be of the full age of thirty years.

2. He shall be either a natural-born subject of the Queen,

or a subject of the Queen naturalized by an Act of the
Parliament of Great Britain, or of the 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, before the Union, or of the Parliament of
Canada after the Union.

3. He shall be legally or equitably seised as of freehold for

his own use and benefit of lands or tenements held
in free and common 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 $4,000, 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

$4,000 over and above his debts and liabilities.

5. He shall be resident in the Province for which he is

appointed.

6. In the case of Quebec he shall have his real property

qualification in the Electoral Division for which he is
appointed, or shall be resident in that Division.

24. The Governor General shall from time to time, in the
Queen's name, by instrument under the Great Seal of Canada,
summon qualified persons to the Senate; and, subject to the
provisions of this Act, every person so summoned shall become
and be a member of the Senate and a Senator.

25. Such persons shall be first summoned 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.

26. If at any time on the recommendation of the Governor
General the Queen thinks fit to direct that three or six mem-
bers be added to the Senate, the Governor General may by sum-
mons to three or six qualified persons (as the case may be),
representing equally the three divisions of Canada, add to the
Senate accordingly.

27. In case of such addition being at any time made the
Governor General shall not summon any person to the Senate,

868 CANADIAN constitution: appendix a.

except on a further like 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.

28. The number of Senators shall not at any time exceed
seventy-eight.

29. A Senator shall, subject to the provisions of this Act,
hold his place in the Senate for life.

30. A Senator may by writing under his hand addressed to
the Governor General resign his place in the Senate, and there-
upon the same shall be vacant.

31. The place of a Senator shall become vaqant in any of
the following cases:

1. If for two consecutive. Sessions of the Parliament he

fails to give his attendance in the Senate.

2. If he takes an oath or makes a declaration or acknow-

ledgment 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 privi-
leges of a subject or citizen, of a foreign power.

3. If he is adjudged bankrupt or insolvent, or applies for

the benefit of any law relating to insolvent debtors,
or becomes a public defaulter.

4. If he is attainted of treason or convicted of felony or of

any infamous crime.

5. If he ceases to be qualified in respect of property or of

residence; provided, that a Senator shall not be
deemed to have ceased to be qualified in respect of
residence by reason only of his residing at the seat
of the Government of Canada while holding an oflBce
under that Government requiring his presence there.

32. When a vacancy happens in the Senate by resignation,
death, or otherwise, the Governor General shall by summons
to a fit and qualified person fill the vacancy.

33. If any question arises respecting the qualification of a
Senator or a vacancy in the Senate the same shall be heard and
determined by the Senate.

34. The Governor General may from time to time, by in-
strument under the Great Seal of Canada, appoint a Senator to
be Speaker of the Senate, and may remove him and appoint
another in his stead.

35. Until the Parliament of Canada otherwise provides, the
presence of at least fifteen Senators, including the Speaker, shall
be necessary to constitute a meeting of the Senate for the exer-
cise of its powers.

BRITISH NORTH AMERICA ACT, 1867. 869

36. Questions arising in the Senate shall be decided by a
majority of voices, and the Speaker shall in all cases have a
vote, and when the voices are equal the decision shall be deemed
to be in the negative.

The House of Commons.

37. The House of Commons shall, subject to the provisions
of this Act, consist of one hundred and eighty-one members, of
whom eighty-two shall be elected for Ontario, sixty-five for
Quebec, nineteen for Nova Scotia, and fifteen for New Bruns-
wick.

38. The Governor General shall from time to time, in the
Queen's name, by instrument under the Great Seal of Canada,
summon and call together the House of Commons.

39. A Senator shall not be capable of being elected or of
sitting or voting as a member of the House of Commons.

40. Until the Parliament of Canada otherwise provides,
Ontario, Quebec, Nova Scotia, and New Brunswick shall, for
the purposes of the election of members to serve in the House
of Commons, be divided into Electoral Districts as follows: —

1. — Ontario.

Ontario shall be divided into the Counties, Ridings of Coun-
ties, Cities, parts of Cities, and Towns enumerated in the first
Schedule to this Act, each whereof shall be an Electoral District,
each such District as numbered in that Schedule being entitled
to return one member.

2. — Quebec.

Quebec shall be divided into sixty-five Electoral Districts,
composed of the sixty-five Electoral Divisions into which Lower
Canada is at the passing of this Act divided under chapter two
of the Consolidated Statutes of Canada, chapter seventy-five
of the Consolidated Statutes of Lower Canada, and the Act
of the Province of Canada of the twenty-third year of the
Queen, chapter one, or any other Act amending the same in
force at the Union, so that each such Electoral Division shall
be for the purposes of this Act an Electoral District entitled to
return one member.

3. — Nova Scotia.

Each of the eighteen Counties of Nova Scotia shall be an
Electoral District. The County of Halifax shall be entitled to
return two members, and each of the other Counties one
member.

4. — New Brunswick.

Each of the fourteen Counties into which New Brunswick is
divided. Including the City and County of St. John, shall be an

870 CANADIAN CONSTITUTION: APPENDIX A.

Electoral District; the City of St. John shall also be a separate
Electoral District. Each of those fifteen Electoral Districts
shall be entitled. to return one member.

41. Until the Parliament of Canada otherwise provides, all
laws in force in the several Provinces at the Union relative to
the following matters or any of them, namely, — the qualifica-
tions and disqualifications of peYsons 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 elections 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, and proceedings incident thereto, the
vacating of seats of members, and the execution of new writs
in case of seats vacated otherwise than by dissolution, — shall
respectively apply to elections of members to serve in the House
of Commons for the same several Provinces.

Provided that, until the Parliament of Canada otherwise pro-
vides, at any election for a Member of the House of Commons
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.

42. For the first election of members 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 possessed at the Union by the officers charged
with the issuing of writs for the election of members to serve
in the respective House of Assembly or Legislative Assembly
of the Province of Canada, Nova Scotia, or New Brunswick;
and the Returning Officers to whom writs are directed under this
section shall have the like powers as are possessed at the Union
by the officers charged with the returning of writs for the elec-
tion of members to serve in the same respective House of
Assembly or Legislative Assembly.

43. In case a vacancy in the representation in the House of
Commons of any Electoral District happens before the meeting
of the Parliament, or after the meeting of the Parliament before
provision is made by the Parliament in this behalf, the provi-
sions 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.

BRITISH NORTH AMERICA ACT;, 1867. 871

44. The House of Commons on its first assembling after a
general election shall proceed with all practicable speed to elect
one of its members to be Speaker.

45. In case of a vacancy happening in the office of Speaker
by death, resignation or otherwise, the House of Commons
shall with all practicable speed proceed to elect another of its
members to be Speaker.

46. The Speaker shall preside at all meetings of the House
of Commons.

47. Until the Parliament of Canada otherwise provides, in
case of the absence for any reason of the Speaker from the
chair of the House of Commons for a period of forty-eight con-
secutive hours, the House may elect another of its members to
act as Speaker, and the member so elected shall during the con-
tinuance of such absence of the Speaker have and execute all
the powers, privileges, and duties of Speaker.

48. The presence of at least twenty members of the House
of Commons shall be necessary to constitute a meeting of the
House for the exercise of its powers, and for that purpose the
Speaker shall be reckoned as a member.

49. Questions arising in the House of Commons shall be de-
cided by a majority of voices other than that of the Speaker and
when the voices are equal, but not otherwise, the Speaker shall
have a vote.

50. Every House of Commons shall continue for five years
from the day of the return of the writs for choosing the House
(subject to be sooner dissolved by the Governor General), and
no longer.

51. On the completion of the census in the year one thou-
sand eight hundred and seventy-one, and of each subsequent
decennial census, the representation of the four Provinces shall
be re-adjusted by such authority, in such manner and from such
time as the Parliament of Canada from time to time provides,
subject and according to the following rules: —

1. Quebec shall have the fixed number of sixty-five mem-

bers:

2. There shall be assigned to each of the other Provinces

3. In the computation of the number of members for a

Province a fractional part not exceeding one-half of
the whole number requisite for entitling the Province

872 CANADIAN CONSTITUTION: APPENDIX A.

to a member shall be disregarded; but a fractional
part exceeding one-balf of that number shall be
equivalent to the whole number:

4. On any such re-adjustment the number of members for

a Province 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 ter-

mination of the then existing Parliament.

52. The number of members of the House of Commons may
be from time to time increased by the Parliament of Canada,
provided the proportionate representation of the Provinces
prescribed by this Act is not thereby disturbed.

Money Votes; Royal Assent.

53. Bills for expropriating any part of the public revenue,
or for imposing any tax or impost, shall originate in the House
of Commons.

54. It shall not be lawful for the House of Commons to
adopt or pass any vote, resolution, address, or bill for the appro-
priation of any part of the public revenue, or of any tax or
impost, to any purpose that has not been first recommended
to that House by message of the Governor-General in the
Session in which such vote, resolution, address, or bill Is
proposed.

55. Where a bill passed by the Houses of the Parliament Is
presented to the Governor General for the Queen's assent, he
shall declare according to his discretion, but subject to the
provisions of this Act and to Her Majesty's instructions, either
that he assents thereto in the Queen's name, or that he with-
holds the Queen's assent, or that he reserves the bill for the
signification of the Queen's pleasure.

56. Where the Governor General assents to a bill in the
Queen's name, he shall by the first convenient opportunity 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 certificate of
the Secretary of State of the day on which the Act was re-
ceived by him) being signified by the Governor General, by
speech or message to each of the Houses of Parliament, or by

BEITISH NORTH AMERICA ACT, 1867. 873

proclamation, shall annul the Act from and after the day of
such signification.

57. A bill reserved for the signification of the Queen's pleasure
shall not have any force unless and until within two years'
from the day on which it was presented to the Governor
General for the Queen's assent, the Governor General signifies,
by speech or message to each of the Houses of the Parliament
or by proclamation, that it has received the assent of the Queen
in Council.

An entry of every such speech, message, or proclamation
shall be made in the Journal of each House, and a duplicate
thereof duly attested shall be delivered to the proper officer to
be kept among the Records of Canada.

V. — Provincial Constitutions.
Executive Power.

58. For each Province there shall be an officer, styled the
Lieutenant Governor, appointed by the Governor General in
Council by instrument under the Great Seal of Canada.

59. A Lieutenant Governor shall hold office during the
pleasure of the Governor General; but any Lieutenant Gover-
nor appointed after the commencement of the first Session of the
Parliament of Canada shall not be removable within five years
from his appointment, except for cause assigned, which shall
be communicated to him in writing within 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 commencement of the next
Session of the Parliament.

60. The salaries of the Lieutenant Governors shall be fixed
and provided by the Parliament of Canada.

61. Every Lieutenant Governor shall, before assuming the
duties of his oflEice, make and subscribe before the Governor
General or some person authorized by him, oaths of allegiance
and office similar to those taken by the Governor General.

62. The provisions of this Act referring to the Lieutenant
Governor extend and apply to the Lieutenant Governor for the
time being of each Province or other the chief executive officer
or administrator for the time being carrying on the govern-
ment of the Province, by whatever title he is designated.

63. The Executive Council of Ontario and of Quebec shall
be composed of such persons as the Lieutenant Governor from
time to time thinks fit, and in the first instance of the following

874 CANADIAN CONSTITUTION: APPENDIX A.

officers, namely: — The Attorney General, the Secretary and
Registrar of the Province, the Treasurer of the Province, the
Commissioner of Crown Lands, and the Commissioner of Agri-
culture and Public Works, within Quebec, the Speaker of the
Legislative Council and the Solicitor General.

64. The Constitution of the Executive Authority in each of
the Provinces of Nova Scotia and New Brunswick shall, subject
to the provisions of this Act, continue as it exists at the Union
until altered under the authority of this Act.

65. All powers, authorities, and functions which under any
Act of the Parliament of Great Britain, or of the Parliament
of the United Kingdom of Great Britain and Ireland, or of the
Legislature of Upper Canada, Lower Canada, or Canada, were
or are before or at the Union vested in or exercisable by the
respective Governors or Lieutenant Governors of those provinces,
with the advice, or with the advice and consent, of the
respective Executive Councils thereof, or in conjunction with
those Councils, or with any number of members thereof, or by
those Gorvernors or Lieutenant Governors individually, 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
Lieutenant Governor of Ontario and Quebec respectively, with
the advice or with the advice and consent of or in conjunction
with the respective Executive Councils, or any members thereof,
or by the Lieutenant Governor individually, as the case re-
quires, subject nevertheless (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 Ire-
land), to be abolished -or altered by the respective Legislatures
of Ontario and Quebec.

66. The provisions of this Act referring to the Lieutenant
Governor in Council shall be construed as referring to the
Lieutenant Governor of the Province acting by and with the
advice of the Executive Council thereof.

67. The Governor General in Council may from time to time
appoint an administrator to execute the office and functions
of Lieutenant Governor during his absence, illness, or other
Inability.

68. Unless and until the Executive Government of any Pro-
vince otherwise directs with respect to that Province, the seats
of Government of the Provinces shall be as follows, namely, —
of Ontario, the City of Toronto; of Quebec, the City of Quebec;
of Nova Scotia, the City of Halifax; and of New Brunswick, the
City of Fredericton.

BEITISH NORTH AMEEICA ACT, 1867. 875

Legislative Power.
1. — Ontario.

69. There shall be a Legislature for Ontario consisting of the
Lieutenant Governor and of one House, styled the Legislative
Assembly of Ontario.

70. The Legislative Assembly of Ontario shall be composed
of eighty-two members, to be elected to represent the eighty-
two Electoral Districts set forth in the first Schedule to this
Act.

2. — Quebec.

71. There shall be a Legislature for Quebec consisting of
the Lieutenant Governor and of two Houses, styled the Legis-
lative Council of Quebec and the Legislative Assembly of Quebec.

72. The Legislative Council of Quebec shall be composed of
twenty-four members, to be appointed by the Lieutenant Gover-
nor in the Queeii^_aame, by instrument under the Great Seal
of Quebec, one being appointed to represent each of the twenty-
four electoral divisions of Lower Canada in this Act referred
to, and each holding office for the term of his life, unless the
Legislature of Quebec otherwise provides under the provisions
of this Act.

73. The Qualifications of the Legislative Councillors of Quebec
shall be the same as those of the Senators for Quebec.

74. The place of a Legislative Councillor of Quebec shall
become vacant in the cases mutatis mutandis, in which the
place of Senator becomes vacant.

75. When a vacancy happens in the Legislative Council of
Quebec, by resignation, death, or otherwise, the Lieutenant
Governor, in the Queen's name by instrument under the Great
Seal of Quebec, shall appoint a fit and qualified person to fill
the vacancy.

76. If any question arises respecting the qualification of a
Legislative Councillor of Quebec, or a vacancy in the Legisla-
tive Council of Quebec, the same shall be heard and determined
by the Legislative Council.

77. The Lieutenant Governor may from time to time, by
instrument under the Great Seal of Quebec, appoint a member
of the Legislative Council of Quebec to be Speaker thereof, and
may remove him and appoint another in his stead.

78. Until the Legislature of Quebec otherwise provides, the
presence of at least ten members of the Legislative Council, in-
cluding the Speaker, shall be necessary to constitute a meeting
for the exercise of its powers.

,876 CAN^ADIAN" CONSTITUTION: APPENDIX A.

79. Questions arising in the Legislative Council of Quebec
shall be decided by a majority of voices, and the Speaker shall
in all cases have a vote, and when the voices are equal the
decision shall be deemed to be in the negative.

80. The Legislative Assembly of Quebec shall be composed
of sixty-five members, to be elected to represent the sixty-five
electoral divisions or districts of Lower Canada in this Act re-
ferred to, subject to alteration thereof by the Legislature of
Quebec: Provided that it shall not be lawful to present to the
Lieutenant Governor of 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 bills unless an address
has been presented by the Legislative Assembly to the Lieutenant
Governor stating that it has been so passed.

3. — Ontario and Quebec.

81. The Legislatures of Ontario and Quebec respectively shall
be called together not later than six months after the Union.

82. The Lieutenant Governor of Ontario and of Quebec shall
from time to time, in the Queen's name, by instrument under the
Great Seal of the Province, summon and call together the Legis-
lative Assembly of the Province.

83. Until the Legislature of Ontario or of Quebec otherwise
provides, a person accepting or holding in Ontario or in Quebec
any office, commission, or employment 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 Province is attached,
shall not be eligible as a member of the Legislative Assembly
of the respective Province, nor shall he sit or vote as such;
but nothing in this section shall make ineligible any person
being a member of the Executive Council of the respective
Province, or holding any of the following offices, that is to say,
the offices of Attorney General, Secretary and Registrar of the
Province, Treasurer of the Province, Commissioner of Crown
Lands, and Commissioner of Agriculture and Public Works,
and, in Quebec, Solicitor General, or shall disqualify him to sit
or vote in the House for which he is elected provided he is
elected while holding such office.

84. Until the Legislatures of Ontario and Quebec respectively
otherwise provide, all laws which at the Union are in force in

BRITISH NORTH AMERICA ACT^ 1867. 877

those Provinces respectively, relative to the following matters,
or any of them, namely, — the qualifications and disqualifications
of persons to be elected or to sit or vote as members of the
Assembly of Canada, the qualifications or disqualifications of
voters, the oaths to be taken by voters, the Returning Officers,
their powers and duties, the proceedings at elections, the periods
during which such elections may be continued, and the trial of
controverted elections 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 dissolu-
tion, shall respectively apply to elections of members to serve in
the respective Legislative Assemblies of Ontario and Quebec.

Provided that until the Legislature of Ontario otherwise pro-
vides, at any election for a member of the Legislative Assembly
of Ontario for the District of Algoma, in addition to persons
qualified by the law of the Province of Canada to vote, every
male British subject, aged twenty-one years or upwards, being
a householder, shall have a vote.

85. Every Legislative Assembly of Ontario and every Legis-
lative Assembly of Quebec shall continue for four years from
the day of the return of the writs for choosing the same (sub-
ject nevertheless to either the Legislative Assembly of Ontario
or the Legislative Assembly of Quebec being sooner dissolved
by the Lieutenant Governor of the Province), and no longer.

86. There shall be a session of the Legislature of Ontario
and of that of Quebec once at least in every year, so that
twelve months shall not intervene between the last sitting of
the Legislature in each Province in one session and its first
sitting in the next session.

87. The following provision of this Act respecting the House
of Commons of Canada, shall extend and apply to the Legis-
lative Assemblies of Ontario and Quebec, that is to say, — the
provisions relating to the election of a Speaker originally and
on vacancies, the duties of the Speaker, the absence of the
Speaker, the quorum, and the mode of voting, as if those pro-
visions were here re-enacted and made applicable in terms to
each such Legislative Assembly.

4. — Nova Scotia and New Brunswick.

88. The constitution of the Legislature of each of the Pro-
vinces of Nova Scotia and New Brunswick shall, subject to
the provisions of this Act, continue as it exists at the Union
until altered under the authority of this Act; and the House
of Assembly of New Brunswick existing at the passing of this

878 CANADIAN CONSTITUTION: APPENDIX A.

Act shall, unless sooner dissolved, continue for the period for
which it was elected.

5. — Ontario, Quebec and Nova Scotia.

89. Each of the Lieutenant Governors of Ontario, Quebec,
and Nova Scotia shall cause writs to be issued for the first
election of members of the Legislative Assembly thereof in such
form and by such person as he thinks fit, and at such time
and addressed to such Returning Officer as the Governor General
directs, and so that the first election of member of Assembly
for any Electoral District or any subdivision thereof shall be
held at the same time and at the same places as the election
for a member to serve in the House of Commons of Canada
for that Electoral District.

6. — The Four Provinces.

90. The following provisions of this Act respecting the I^ar-
llament of Canada, namely, — the provisions relating to appro-
priation and tax bills, the recommendation of money votes, the
assent to bills, the disallowance of Acts, and the signification
of pleasure on bills reserved, — shall extend and apply to the
Legislatures of the several Provinces as if those provisions
were here re-enacted and made applicable in terms to the
respective Provinces and the Legislatures thereof, with the
substitution of the Lieutenant Governor of the Province for
the Governor General, of the Governor General for the Queen
and for a Secretary of State, of one year for two years, and of
the Province of Canada.

VI. — Distribution of Legislative Powers.
Powers of the Parliament.

91. It shall be lawful for the Queen, by and with the advice
and consent of the Senate and House of Commons, to make
laws for the peace, order and good government of Canada, in
relation to all matters not coming within the classes of subjects
by this Act assigned exclusively to the Legislatures of the Pro-
vinces; and for greater certainty, but not so as to restrict the
generality of the foregoing terms of this section, it is hereby
declared that (notwithstanding anything in this Act) the ex-
clusive legislative authority of the Parliament of Canada ex-
tends to all matters coming within the classes of subjects next
hereinafter enumerated ; that is to say: —

1. The Public Debt and Property.

2. The regulation of Trade and Commerce.

3. The raising of money by any mode or system of Taxa-

tion.

BRITISH NORTH AMERICA ACT, 1867. 879

4. The borrowing of money on the public credit.

5. Postal service.

6. The Census and Statistics.

7. Militia, Military and Naval Service and Defence.

8. The fixing of and providing for the salaries and allow-

ances of civil and other officers of the Government
of Canada.

9. Beacons, Buoys, Lighthouses and Sable Island.

10. Navigation and Shipping.

11. Quarantine and the establishment and maintenance of

Marine Hospitals.

12. Sea coast and inland Fisheries.

13. Ferries between a Province and any British or Foreign

country or between two Provinces.

14. Currency and Coinage.

15. Banking, incorporation of Banks, and the issue of paper

money. '

16. Savings' Banks.

17. "Weights and Measures.

18. Bills of Exchange and Promissory Notes.

19. Interest.

20. Legal tender.

21. Bankruptcy and Insolvency.

22. Patents of invention and discovery.

23. Copyrights.

24. Indians, and lands reserved for the Indians.

25. Naturalization and Aliens.

26. Marriage and Divorce.

27. The Criminal Law, except the Constitution of Courts

of Criminal Jurisdiction, but including the Procedure
in Criminal Matters.

28. The Establishment, Maintenance, and Management of

Penitentiaries.

29. Such classes of subjects as are expressly excepted in the

enumeration of the classes of subjects by this Act
assigned exclusively to the Legislatures of the Pro-
vinces.
And any matter coming within any of the classes of subjects
enumerated in this section shall not be deemed to come within
the class of matters of a local or private nature comprised in
the enumeration of the classes of subjects by this Act assigned
exclusively to the Legislatures of the Provinces.

880 CANADIAN CONSTITUTION: APPENDIX A.

Exclusive Powers of Provincial Legislatures.
92. In each Province the Legislature may exclusively make
laws in relation to matters coming within the classes of sub-
jects next hereinafter enumerated, that is to say, —

1. The Amendment from time to time, notwithstanding

anything in this Act, of the Constitution of the Pro-
vince, except as regards the office of Lieutenant
Governor.

2. Direct Taxation within the Province in order to the

raising of a Revenue for Provincial purposes.

3. The borrowing of money on the sole credit of the Pro-

vince.

4. The establishment and tenure of Provincial offices and

the appointment and payment of Provincial officers.

5. The management and sale of the Public Lands belong-

ing to the Province and of the timber and wood
thereon.

6. The establishment, maintenance, and management of

public and reformatory prisons in and for the Pro-
vince.

7. The establishment, maintenance, and management of

hospitals, asylums, charities, and eleemosynary
institutions in and for the Province, other than marine
hospitals.

8. Municipal institutions 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.

10. Local works and undertakings other than such as are

of the following classes, —

a. Lines of steam or other ships, railways, canals,
telegraphs, and other works and undertakings
connecting the Province with any other or
others of the Provinces, or extending beyond
the limits of the Province:
&. 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 execu-
tion declared by the Parliament of Canada to
^^, -v; be for the general advantage of Canada or for

^ '^B( the advantage of two or jnore of the Provinces.

11. The incorporation of companies with Provincial ob-

jects.

12. The solemnization of marriage in the Province*

13. Property and civil rights in the Province.

BRITISH NORTH AMERICA ACT, 1867. 881

14. The administration of justice in the Province, includ-

ing the constitution, maintenance, and organization
of Provincial Courts, both of civil and of criminal
jurisdiction, and including procedure in civil matters
in those Courts.

15. The imposition of punishment by fine, penalty, or

imprisonment 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.

16. Generally all matters of a merely local or private

nature in the Province.

Education.
93. In and for each Province the Legislature may exclu-
sively make laws in relation to education, subject and accord-
ing to the following provisions: —

1. Nothing in any such law shall prejudicially affect any

right or privilege 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
Roman Catholic subjects shall be and the same are
hereby extended to the dissentient schools of the
Queen's Protestant and Roman Catholic subjects in
Quebec.

3. Where in any Province a system of separate or dissen-

tient schools exists by law at the Union or is there-
after established by the Legislature of the Province,
an appeal shall lie to the Governor General in Council
from any Act or decision of any Provincial authority
affecting any right or privilege of the Protestant or
Roman Catholic minority of the Queen's subjects in
relation to education.

4. In case any such Provincial law as from time to time

seems to the Governor General in Council requisite
for the due execution of the provisions of this section
is not made, or in case any decision of the Governor
General in Council on any appeal under this section
is not duly executed by the proper Provincial auth-
ority in that behalf, then and in every such case, and
as far only as the circumstances of each case require,,
the Parliament of Canada 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 section.
CAN- CON. — 56

882 CANADIAN constitution: appendix a.

Uniformity of Laws in Ontario, Nova Scotia and New
Brunswick.

94. Notwithstanding anything in this Act, the Parliament
of Canada may make provision for the uniformity of all or
any of the laws relative to 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 Provinces ; 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 anything in
this Act, be unrestricted; but any Act of the Parliament of
Canada jnaking 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.

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 Parlia-
ment of Canada may from time to time make laws in relation
to Agriculture in all or any of the Provinces, and to Immigra-
tion into all or any of the Provinces; and any law of the
Legislature of a Province relative to Agriculture or to Immi-
gration shall have effect in and for the Province as long and
as far only as it is not repugnant to any Act of the Parliament
of Canada.

VII. — Judicature.

96. The Governor General shall appoint the Judges of the
Superior, District, and County Courts in each Province, except
those of the Courts of Probate in Nova Scotia and New
Brunswick.

97. Until the laws relative to property and civil rights in
Ontario, Nova Scotia, and New Brunswick, and the procedure
of the Courts in those Provinces, are made uniform, the Judges
of the Courts of those Provinces appointed by the Governor
General shall be selected from the respective Bars of those
Provinces.

98. The Judges of the Courts of Quebec shall be selected
from the Bar of that Province.

99. The Judges of the Superior Courts shall hold office
during good behaviour, but shall be removable by the Gover-
nor General on address of the Senate and House of Commons.

100. The salaries, allowances and pensions of the Judges
of the Superior, District, and County Courts (except the Courts
of Probate in Nova Scotia and New Brunswick), and of the

BRITISH NORTH AMERICA ACT, 18.67. 883

Admiralty Courts in cases where the Judges thereof are for
the time being paid by salary, shall be fixed and provided by
the Parliament of Canada.

101. The Parliament of Canada may, notwithstanding any-
thing in this Act, from time to time, provide for the constitu-
tion, maintenance, and organization of a general Court of
Appeal for Canada, and for the establishment of any additional
Courts for the better administr^ion of the Laws of Canada.

VIII. — Revenues; Debts; Assets; Taxation.

102. All duties and revenues over which the respective
Legislatures of Canada, Nova Scotia, and New Brunswick
before and at the Union 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 conferred on them by
this Act, shall form one Consolidated Revenue Fund, to be
appropriated for the public service of Canada in the manner
and subject to the charges in this Act provided.

103. The Consolidated Revenue Fund of Canada shall be
permanently charged with the costs, charges, and expenses
incident to the collection, management, and receipt thereof,
and the same shall form the first charge thereon, subject to be
reviewed and audited in such manner as shall be ordered by
the Governor General in Council until the Parliament other-
wise provides.

104. The annual interest of the public debts of the several
Provinces of Canada, Nova Scotia and New Brunswick at the
Union shall form the second charge on the Consolidated
Revenue Fund of Canada.

105. Unless altered by the Parliament of Canada, the salary
of the Governor General shall be ten thousand pounds sterling
money of the United Kingdom of Great Britain and Ireland,
payable out of the Consolidated Revenue Fund of Canada, and
the same shall form the third charge thereon.

106. Subject to the several payments by this Act charged
on the Consolidated Revenue Fund of Canada, the same shall
be appropriated by the Parliament of Canada for the public
service.

107. All stocks, cash, banker's balances, and securities for
money belonging to each Province at the time of the Union,
except as in this Act mentioned,- 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.

884 CANADIAN CONSTITUTION: APPENDIX A.

108. The public works and property of each Province,
enumerated in the third schedule to this Act, shall be the
property of Canada.

109. All lands, mines, minerals, and royalties belonging
to the several Provinces of Canada, Nova Scotia and New
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, subject to
any trusts existing in respect thereof, and to any interest other
than that of the Province in the same.

110. All assets connected with such portions of the public
debt of each Province as are assumed by that Province shall '
belong to that Province.

111. Canada shall be liable for the debts and liabilities of
each Province existing at the Union.

112. Ontario and Quebec conjointly shall be liable to Canada
for the amount (if any) by which the debt of the Province of
Canada exceeds at the Union $62,500,000, and shall be charged
with interest at the rate of five per centum per annum thereon.

113. The assets enumerated in the fourth Schedule to this
Act belonging at the Union to the Province of Canada shall be
the property of Ontario and Quebec conjointly.

114. Nova Scotia shall be liable to Canada for the amount
(if any) by which its public debt exceeds at the Union
$8,000,000, and shall be charged with interest at the rate of
five per centum per annum thereon.

115. New Brunswick shall be liable to Canada for the
amount (if any) by which its public debt exceeds at the Union
$7,000,000, and shall be charged with interest at the rate of
five per centum per annum thereon.

116. In case the public debt of Nova Scotia and New Bruns-
wick do not at the Union amount to $8,000,000 and $7,000,000
respectively, they shall respectively receive by half-yearly pay-
ments in advance from the Government of Canada interest at
five per centum per annum on the difference between the
actual amounts of their respective debts and such stipulated
amounts.

117. The several Provinces shall retain all their respective
public property not otherwise disposed of in this Act, subject/
to the right of Canada to assume any lands or public property
required for fortifications or for the defence of the country.

BRITISH NORTH AMERICA ACT, 1867. 885

118. The following sums shall be paid yearly by Canada to
the several Provinces for the support of their Governments
and Legislatures: —

Ontario Eighty thousand

Quebec Seventy thousand

Nova Scotia Sixty thousand

New Brunswick Fifty thousand

Two hundred and sixty thousand.

and an annual grant in aid of each Province shall be made,
equal to eighty cents per head of the population as ascertained
by the Census of 1861, and in the case of Nova Scotia and New
Brunswick, by each subsequent decennial census until the popu-
lation 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 Canada, and shall be paid half-yearly in advance to each
Province; but the Government of Canada shall deduct from
such grants, as against any Province, all sums chargeable as
interest on the Public Debt of that Province in excess of the
several amounts stipulated in this Act.

119. New Brunswick shall receive by half-yearly payments
In advance from Canada, for the period of ten years from the
Union an additional allowance of $63,000 per annum; but as
long as the Public Debt of that Province remains under
$7,000,000, a deduction equal to the interest at five per centum
per annum on such deficiency shall be made from that allow-
ance of $63,000.

120. All payments to be made under this Act, or in dis-
charge of liabilities created under any Act of the Provinces of
Canada, Nova Scotia and New Brunswick respectively, and
assumed by Canada, shall, until the Parliament of Canada
otherwise directs, be made in such form and manner as may
from time to time be ordered by the Governor General in
Council.

121. All articles of the growth, produce, or manufacture of
any one of the Provinces shall, from and after the Union, be
admitted_Xr.ee JutQ each ^oi the other Provinces.

122. The Customs and Excise Laws of each Province shall,
subject to the provisions of this Act, continue in force until
altered by the Parliament of Canada.

123. Where Customs duties are, at the Union, leviable on
any goods, wares and merchandises In any two Provinces, those
goods, wares and merchandises may, from and after the Union,

886 CANADIAN CONSTITUTION: APPENDIX A.

be imported from one of those Provinces into the other of
them on proof of payment of the Customs duty leviable thereon
in the Province of exportation, and on payment of such further
amount (if any) of Customs duty as is leviable thereon in the
Province of importation.

124. Nothing in this Act shall affect the right of New Bruns-
wick to levy the lumber dues provided in chapter fifteen, of
title three, of the Revised Statutes of New Brunswick, or in
any Act amending that Act before or after the Union, and
not increasing the amount of such dues; but the lumber of
any of the Provinces other than New Brunswick shall not be
subject to such dues.

125. No lands or property belonging to Canada or any Pro-
vince shall be liable to taxation.

126. Such portions of the duties and revenues over which
the respective Legislatures of Canada, Nova Scotia and New
Brunswick had before the Union power of appropriation as
are by this Act reserved to the respective Governments or
Legislatures of the Provinces, and all duties and revenues
raised by them in accordance with the special powers conferred
upon them by this Act, shall in each Province form one Con-
solidated Revenue Fund to be appropriated for the public ser-
vice of the Province.

IX. — Miscellaneous Provisions.
General.

127. If any person being at the passing of this Act a
Member of the Legislative 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 q{
Nova Scotia or New Brunswick, accepts a place in the Senate,
shall thereby vacate his seat in such Legislative Council.

128. Every member of the Senate or House of Commons of
Canada shall before taking his seat therein, take and subscribe
before the Governor General or some person authorized by him,
and every member of a Legislative Council or Legislative As-
sembly of any Province shall before taking his seat therein,
take and subscribe before the Lieutenant Governor of the Pro-
vince or some person authorized by him, the oath of allegiance

BRITISH NORTH AMERICA ACT, 1867. 887

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 before the Governor General or some person
authorized by him, the declaration of qualification contained in
the same Schedule.

129. Except as otherwise provided by this Act, all laws in
-force In Canada, Nova Scotia or New 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 continue in Ontario, Quebec, Nova Scotia and New Bruns-
wick 'respectively, as if the Union had not been made; subject
nevertheless (except with respect to such as are enacted by or
exist under Acts of the Parliament of Great Britain or of
the Parliament of the United Kingdom of Great Britain and
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 Parliament or of that Legis-
lature under this Act.

130. Until the Parliament of Canada otherwise provides, all
officers of the several provinces having duties to discharge in re-
lation to matters other than those coming within the classes of
subjects by this Act assigned exclusively to the Legislatures of
the Provinces shall be officers of Canada, and shall continue to
discharge the duties of their respective offices under the same
liabilities, responsibilities and penalties as if the Union had not
been made.

131. Until the Parliament of Canada otherwise provides, the
Governor General in Council may from time to time appoint
such officers as the Governor General in Council deems neces-
sary or proper for the effectual execution of this Act.

132. The Parliament and Government of Canada shall have
all powers necessary or proper for performing the obligations
of Canada or of any Province thereof, as part of the British
•Empire, towards foreign countries, arising under treaties be-
tween the Empire and such foreign countries. '

133. Either the English or the French language may be used
by any person in the debates of the Houses of the Parliament
of Canada and of the Houses of the Legislature of Quebec; and
both those languages shall be used in the respective records
and journals of those Houses; and either of those languages
may be used by any person or in any pleading or process in or
issuing from any Court of Canada established under this Act,
and in or from all or any of the Courts of Quebec,

888 CANADIAN CONSTITUTION: APPENDIX A.

The Acts of the Parliament of Canada and of the Legislature
of Quebec shall be printed and published in both those languages.

Ontario and Quel)ec.

134. Until the Legislature of Ontario or of Quebec other-
wise provides, the Lieutenant Governors of Ontario and Quebec
may each appoint under the Great Seal of the Province the
following officers, to hold office during pleasure, that is to say: —
the Attorney General, the Secretary and Registrar of the Pro-
vince, the Treasurer of the Province, the Commissioner of Crown
Lands, and the Commissioner of Agriculture and Public Works,
and in the case of Quebec the Solicitor General; and may, by
order of the Lieutenant Governor in Council, from time to' time
prescribe the duties of those officers and of the several depart-
ments 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 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.

135. Until the Legislature of Ontario or Quebec otherwise
provides, all rights, powers, duties, functions, responsibilities
or authorities at the passing of this Act vested in or imposed
on the Attorney General, Solicitor General, Secretary and
Registrar of the Province of Canada, 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 Canada, or Canada,
and not repugnant to this Act, shall be vested in or imposed
on any officer to be appointed by the Lieutenant Governor for
the discharge of the same of any of them; and the Commissioner
of Agriculture and Public Works shall perform the duties and
functions of the office of Minister of Agriculture at the passing
of this Act imposed by the law of the Province of Canada, as
well as those of the Commissioner of Public Works.

136. Until altered by the Lieutenant Governor in Council,
the Great Seals of Ontario and Quebec respectively shall be
the same, or of the some 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 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

BRITISH NORTH AMERICA ACT, 1867. 889

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 powers of the same as defined by this Act.

138. From and after the Union, the use of the words
" Upper Canada " instead of " Ontario," or " Lower Canada "
instead of " Quebec," in any deed, writ, process, pleading, docu-
ment, matter or thing, shall not invalidate the same.

139. Any Proclamation under the Great Seal of the Pro-
vince of Canada issued before the Union to take effect at a
time which is subsequent to the Union, whether relating to
that Province, or to Upper Canada, or to Lower Canada, and
the several matters and things therein proclaimed shall be and
continue of like force and effect as if the Union had not been
made.

140. Any Proclamation which is authorized by any Act of
the Legislature of the Province of Canada, to be issued under
the Great Seal of the Province of Canada, whether relating to
that Province, or to Upper Canada, or to Lower Canada, and
which is not issued before the Union, may be issued by the
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 proclaimed shall be and continue of
the like force and effect in Ontario or Quebec as if the Union
had not been made.

141. The Penitentiary of the Province of Canada shall, until
the Parliament of Canada otherwise provides, be and continue
the Penitentiary of Ontario and of Quebec.

142. The division and adjustment of the debts, credits, lia-
bilities, properties and assets of Upper Canada and Lower
Canada shall be referred to the arbitrament of three arbitra-
tors, one chosen by the Government of Ontario, one by the
Government of Quebec, and one by the Government of Canada;
and the selection of the arbitrators shall not be made until the
Parliament of Canada and the Legislatures 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.

143. The Governor General in Council may from time to
time order that such and so many of the records, books, and
documents of the Province of Canada as he thinks fit shall be
appropriated and delivered either to Ontario or to Quebec, and

890 CANADIAN CONSTITUTION: APPENDIX A.

the same shall thenceforth be the property of that Province;
and any copy thereof or extract therefrom, duly certified by
the officer having charge of the original thereof, shall be ad-
mitted as evidence.

144. The Lieutenant Governor of Quebec may from time to
time, by Proclamation under the Great Seal of the Province, to
take effect from a day to be appointed therein, constitute town-
ships in those parts of the Province of Quebec in which town-
ships are not then already constituted, and fix the metes and
bounds thereof.

X. — Intercolonial Railway.

145. Inasmuch as the Provinces of Canada, Nova Scotia,
and New Brunswick have joined in a declaration that the con-
struction of the Intercolonial Railway is essential to the con-
solidation 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 im-
mediate construction by the Government of Canada: There-
fore, in order to give effect to that agreement, it shall be the
duty of the Government and Parliament of Canada to provide
for the commencement within six months after the Union, of
a railway connecting the River St. Lawrence with the City of
Halifax in Nova Scotia, and for the construction thereof with-
out intermission, and the completion thereof with all practicable
speed.

XL— Admission of other Colonies.

146. It shall be lawful for the Queen, by and with the ad-
vice of Her Majesty's Most Honourable Privy Council, on
Addresses 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 Parlia-
ment of Canada to admit Rupert's Land and the Northwestern
Territory, or either of them, into the Union, on such terms and
conditions in each case as are in the Addresses expressed and
as the Queen thinks fit to approve, subject to the provisions of
this Act; and the provisions of any Order in Council in that
behalf shall have effect as if they had been enacted by the
Parliament of the United Kingdom of Great Britain and Ireland.

147. In case of the admission of Newfoundland and Prince
Edward Island, or either of them, each shall be entitled to a
representation in the Senate of Canada of four members, and
(notwithstanding anything in this Act) in case of the admission

BEITISH NORTH AMERICA ACT, 1867. 891

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 relation to the constitution of the Senate, divided
by this Act, and accordingly, after the admission of Prince
Edward Island, whether Newfoundland is admitted or not, the
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
Provinces 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 direction of the Queen.

SCHEDULE.

The First Schedule.

Electoral Districts of Ontario.

[This Schedule is omitted as the division of Ontario into

Electoral Districts has heen altered hy the sul)sequent Dominion

and Provincal legislation.]

Pontiac.
Ottawa.
Argenteuil.
Huntingdon.

The Second Schedule.
Electoral Districts of Quebec specially fixed.
[See Section 80.]
Counties of —
Missisquoi.
Brome.
Shefford.
Stanstead.
Town of Sherbrooke

Compton.

Wolfe and Richmond.

Megantic.

The Third Schedule.
Provincial Public Works and Property to be the Property of

Canada.

1. CaBLals,jglth Lands and Water Power connected therewith.

2. liublic Harbours.

3. Lighthouses and Piers, and Sable Island.

4. Steamboats, Dredges, and public Vessels.

5. Rivers and Lake Improvements.

6. Railways and Railway Stocks, Mortgages, and other Debts

due by Railway Companies.

892 CANADIAN CONSTITUTION: APPENDIX A.

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.
10. Armouries, Drill Sheds, Military Clothing, and Munitions
of War, and Lands set apart for general public purposes.

The Fourth Schedule.
Assets to he the Property of Ontario and Quel)ec conjointly.
Upper Canada Building Fund.
Lunatic Asylums.
Normal School.
Court Houses, \

in
Aylmer, V Lower Canada.

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.
Temiscouata Advance Account.
Quebec Turnpike Trust.
Education — East.

Building and Jury Fund, Lower Canada.
Municipalities Fund.
Lower Canada Superior Education Income -Fund.

The Fifth Schedule.
Oath of Allegiance.
I. A.B. do swear, That I will be faithful and bear true Alle-
giance to Her Majesty Queen Victoria.

Note. — The name of the King or Queen of the United King-
dom of Great Britain and Ireland for the time "being is to te sub-
stituted from time to time, with proper terms of reference
thereto.

Rupert's land and n. w. territory. 893

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 &e], and that I am legally or equitably seised as of
freehold for my own use and benefit of lands or tenements held
in free and common socage [or seised or possessed for my own
use and benefit of lands or tenements held in franc-alleu or
in roture (as the case may 6e),] in the Province of Nova Scotia
[or as the case may be] of the value of four thousand dollars
over and above all rents, dues, debts, mortgages, charges, and
incumbrances due or payable out of or "charged on or affecting
the same, and that I have not collusively or colourably obtained
a title to or become possessed of the said lands and tenements
or any part thereof for the purpose of enabling me to become
a member of the Senate of Canada [or as the case may be], and
that my real and personal property are together worth four
thousand dollars over and above my debts and liabilities.

2. ORDER OF HER MAJESTY IN COUNCIL ADMITTING
RUPERT'S LAND AND THE NORTH-WESTERN TERRI-
TORY INTO THE UNION.

At the Court at Windsor, the 23rd day of June, 1870.*

Present: The Queen's Most Excellent Majesty, Lord President,
Lord Privy Seal, Lord Chamberlain and Mr. Gladstone.

Whereas by the British North America Act, 1867, "It was
(amongst other things) enacted that it should be lawful for the
Queen, by and with the advice of Her Majesty's Most Honourable
Privy Council, on Address from the Houses of the Parliament
of Canada, to admit Rupert's Land and the North-Western Ter-
ritory, or either of them, into -the Union on such terms and
conditions in each case 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 Council in that behalf should have
effect as if they had been enacted by the Parliament of the
United Kingdom of Great Britain and Ireland:

And whereas by an Address from the Houses- of the Parliar
ment of Canada, of which Address a copy is contained in the
Schedule to this Order annexed, marked A, Her Majesty was
prayed, by and with the advice of Her Most Honourable Privy
Council, to unite Rupert's Land and the North-Western Territory
with the Dominion of Canada, and to grant to the Parliament

* Dominion Statutes 1872, pp. Ixiii-lxvii.

894 CANADIAN constitution: appendix a.

of Canada authority to legislate for their future welfare and
good government upon the terms and conditions therein stated:

And whereas by the "Rupert's Land Act, 1868," it was
(among other things) enacted that it should be competent for
the Governor and Company of Adventurers of England trading
into Hudson's Bay (hereinafter called the Company) to sur-
render to Her Majesty, and for Her Majesty, by any Instrument
under Her Sign Manual and Signet to accept a surrender of all
or any of the lands, territories, i-ights, privileges, liberties, fran-
chises, powers, and authorities whatsoever, granted or purported
to be granted by certain Letters Patent therein recited to the said
Company within Rupert's Land, upon such terms and conditions
as should be agreed upon by and between Her Majesty and the
said Company; provided, however, that such surrender should
not be accepted by Her Majesty until the terms and conditions
upon which Rupert's Land should be admitted into the said
Dominion of Canada should have been approved of by Her
Majesty and embodied in an Address to Her Majesty from both
the Houses of the Parliament of Canada, in pursuance of the
146th Section of the British North America Act, 1867:

And it was by the same Act further enacted that it should
be competent to Her Majesty, by Order or Orders in Council, on
Addresses from the Houses of the Parliament of Canada, to
declare that Rupert's Land should, from a date to be therein
mentioned, be admitted into and become part of the Dominion
of Canada:

And whereas a second address from both the Houses of the
Parliament of Canada has been received by Her Majesty praying
that Her Majesty will be pleased, under the provisions of the
hereinbefore recited Acts, to unite Rupert's Land on the terms
and conditions expressed in certain Resolutions therein referred
to and approved of by Her Majesty of which said Resolutions
and Addresses copies are contained in the Schedule to this
Order annexed marked B. and also to unite the North-Western
Territory with the Dominion of Canada as prayed for by and
on the terms and conditions contained in the hereinbefore first
recited Address, and also approved of by Her Majesty:

And whereas a draft surrender has been submitted to the
Governor-General of Canada containing stipulations to the fol-
lowing effect, viz.: —

1. The sum of £300,000 (being the sum hereinafter men-
tioned) shall be paid by the Canadian Government into the Bank
of England to the credit of the Company within six calendar
months after acceptance of the surrender aforesaid, with interest
on the said sum at the rate of 5 per cent, per annum, computed
from the date of such acceptance until the time of such payment.

RUPERT S LAND AND N. W. TERRITORY. 895

2. The size of the blocks which the Company are to select
adjoining each of their forts in the Red River limits, shall be
as follows:— Acres.
Upper Fort Garry and town of Winnipeg, including the

enclosed part around shop and ground at the entrance

of the town 500

Lower Fort Garry (including the farm the Company now

have under cultivation ) 500

White Horse Plain 500

3. The deduction to be made as hereinafter mentioned from
the price of the materials of the Electric Telegraph, in respect
of deterioration thereof, is to be certified within three calendar
months from such acceptance as aforesaid by the agents of the
Company in charge of the depots where the materials are stored.
And the said price is to be paid by the Canadian Government
into the Bank of England to the credit of the Company within
six calendar months of such acceptance, with interest at the
rate of five per cent, per annum on the amount of such price,
computed from the date of such acceptance until the time of
payment:

And whereas the said draft was on the fifth day of July,
one thousand eight hundred and sixty-nine, approved by the said
Governor-General in accordance with a Report from the Com-
mittee of the Queen's Privy Council for Canada; but it was not
expedient that the said stipulations not being contained in the
aforesaid second Address, should be included in the surrender
by the said Company to Her Majesty of their rights aforesaid or
in this Order in Council:

And whereas the said Company did by deed under the seal
of the said Company and bearing date the nineteenth day of
November, one thousand eight hundred and sixty-nine, of which
deed a copy is contained in the Schedule to this Order annexed
marked C, surrender to Her Majesty all the rights of Govern-
ment and other rights, privileges, liberties, franchises, powers,
and authorities granted, or purported to be granted to the said
Company by the said Letters Patent herein and hereinbefore
referred to, and also all similar rights which may have been
exercised or assumed by the said Company in any parts of
British North America not forming part of Rupert's Land, or
of Canada, or of British Columbia, and all the lands and. terri-
tories (except and subject as in the terms and conditions therein
mentioned) granted or purported to be granted to the said Com-
pany by the said Letters Patent:

And whereas such surrender has been duly accepted by Her
Majesty, by an Instrument under Her Sign Manual and Signet,

896 CANADIAN CONSTITUTION: APPENDIX A.

bearing date at Windsor the twenty-second day of June, one
thousand eight hundred and seventy:

It is hereby Ordered and declared by Her Majesty, by and
with the advice of the Privy Council, in pursuance and exercise
of the powers vested in Her Majesty by the said Acts of Parlia-
ment, that from and after the fifteenth day of July, one thousand
eight hundred and seventy, the said North-Western Territory
shall be admitted into and become part of the Dominion of
Canada upon the terms and conditions set forth in the first
hereinbefore recited Address, and that the Parliament of Canada
shall from the day aforesaid have full power and authority to
legislate for the future welfare and good government of the
said Territory. And it is further ordered that without preju-
dice to any obligations arising from the aforesaid approved
Report, Rupert's Land shall from and after the said date be
admitted into and become part of the Dominion of Canada upon
the following terms and conditions, being the terms and con-
ditions still remaining to be performed of those embodied in
the said second address of the Parliament of Canada, and -
approved of by Her Majesty as aforesaid: —

1. Canada is to pay to the Company £300,000 when Rupert's
Land is transferred to the Dominion of Canada.

2. The Company are to retain the posts they actually occupy
in the North-Western Territory, and may, within twelve
months of the surrender, select a block of land adjoining each
of its posts within any part of British North America not com-
prised in Canada and British Columbia, in conformity, except
as regards the Red River Territory, with a list made out by the
Company and communicated to the Canadian Ministers, being
the list in the Schedule of the aforesaid Deed of Surrender.
The actual survey is to be proceeded with, with all convenient
speed.

3. The size of each block is not to exceed (10) acres round
Upper Fort Garry, (300) acres round Lower Fort Garry; in the
rest of the Red River Territory a number of acres to be settled
at once between the Governor in Council and the Company, but
so that the aggregate extent of the blocks is not to exceed
50,000 acres.

4. So far as the configuration of the country admits, the
blocks shall front the river or road by which means of access
are provided, and shall be approximately in the shape of paral-
lelograms, of which the frontage shall not be more than half
the depth.

5. The company may, for fifty years after the surrender,
claim in any township or district within the Fertile Belt in

Rupert's land and n. w. territory. 897

which land is set out for settlement grants of land not exceeding
one-twentieth part of the land so set out. The blocks so granted
to be determined by lot and the Company to pay a rateable share
of the survey expenses, not exceeding eight cents Canadian an
acre. The Company may defer the exercise of their right of
claiming the proportion of each township for not more than ten
years after it is set out; but their claim must be limited to an
allotment from the lands remaining unsold at the time they
declare their intention to make it.

6. For the purpose of the last Article, the Fertile Belt is
to be bounded as follows: — On the south by the United States
boundary; on the west by the Rocky Mountains; on the north
by the northern branch of the Saskatchewan; on the east by
Lake Winnipeg, the Lake of the Woods and the waters con-
necting them.

7. If any township shall be formed abutting on the north
bank of the northern branch of the Saskatchewan River, the
Company may take their one-twentieth of any such township,
which for the purpose of this Article shall not extend more
than five miles inland from the river, giving to the Canadian
Dominion an equal quantity of the portion of lands coming to
them of townships established on the southern bank.

8. In laying out any public roads, canals, etc., through any
block of land reserved to the Company, the Canadian Govern-
ment may take, without compensation, such land as is neces-
sary for the purpose, not exceeding one twenty-fifth of the total
acreage of the block; but if the Canadian Government require
any land which is actually under cultivation or which has been
built upon or which is necessary for giving the Company's ser-
vants access to any river or lake, or as a frontage to any river
or lake, they shall pay to the Company the fair value of the
same, and shall make compensation for any injury done to the-
Company or their servants.

9. It is understood that the whole of the land to be appro-
priated in the meaning of the last preceding clause shall be
appropriated for public purposes.

10. All titles to land up to the eighth day of March, one
thousand eight hundred and sixty-nine, conferred by the Com-
pany, are to be confirmed.

11. The Company is to be at liberty to carry on its trade
without hindrance in its corporate capacity, and no exceptional
tax is to be placed on the Company's land, trade or servants, nor
any import duties on goods introduced by them previous to the
surrender.

CAN. CON. — 57

898 CANADIAN CONSTITUTION: APPENDIX A.

12. Canada is to take over the materials of the electric tele-
graph at cost price, — such price including transport, but not
including interest for money and subject to a deduction for
ascertained deterioration.

13. The Company's claim to land under agreements of Messrs.
Vankoughnet and Hopkins is to be withdrawn.

14. Any claims of Indians to compensation for lands re-
quired for purposes of settlement shall be disposed of by the
Canadian Government in communication with the Imperial Gov-
ernment; and the Company shall be relieved of all responsibility
in respect of them.

15. The Governor in Council is authorized and empowered
to arrange any details that may be necessary to carry out the
above terms and conditions.

And the Right Honorable Earl Granville, one of Her Ma-
jesty's principal Secretaries of State, is to give the necessary
directions herein accordingly.

Schedule (not printed).*

3. THE MANITOBA ACT.
33 Vic, Cap. 3 (Can.).
An Act to amend and continue the Act 32 and 33 Victoria chap-
ter 3; and to establish and provide for the Government of
the Province of Manitoba}

[Assented to 12th May, 1870.]
Whereas it is probable that Her Majesty The Queen may,
pursuant to the British North America Act, 1867, 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 Government of Canada at the time
appointed by the Queen for such admission ;

And whereas it is expedient also to provide for the organi-
zation of part of the said Territories as a Province, and for the

* See R. S. C. 1908, Vol. 4, App. III., pp. 59-75.

^By sec. 5 of the B, N. A. Act, 1871 (printed infra), this Dom-
inion Act, generally known as " The Manitoba Act," was validated.
By sec. 6 of the same Act it is enacted that " it shall not be
competent for the Parliament of Canada to alter the provisions
of the Manitoba Act." Read with the B. N. A. Act, this Manitoba
Act is, therefore, the constitutional charter of that province.

''The order-in-council bears date 23rd June, 1870, and pro-
vides for the admission of these regions to the Canadian union on
15th July, 1870.

MANITOBA ACT. 899

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 :

1. On, from and after the day upon which the Queen by and
with the advice and consent of Her Majesty's Most Honorable
Privy Council under the authority of the 146th section of the
British North America Act, 1867, by Order in Council in that
behalf, shall admit Rupert's Land and the North-Western Terri-
tory into the Union or Dominion of Canada, there shall be
formed out of the same a Province, which shall be one of the
Provinces of the Dominion of Canada, and which shall be called
the Province of Manitoba, and be bounded as follows:'

2. On, from and after the said day on which the Order of
the Queen in Council shall take effect as aforesaid, the provi-
sions of the British North America Act, 1867, shall, except those
parts thereof which are in terms made, or by reasonable intend-
ment, may be held to be specially applicable to, or only to
affect one or more, but not the whole of the Provinces now com-
posing 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 way, and to the like extent as they apply to the
several provinces of Canada, and as if the Province of Manitoba
had been one of the Provinces originally united by the said Act.

3. The said Province shall be represented in the Senate of
Canada by two Members,* until it shall have, according to
decennial census, a population of fifty thousand souls, and from
thenceforth it shall be represented therein by three Members,
until it shall have, according to decennial census, a population
of seventy-five thousand souls, and from thenceforth it shall be
represented therein by four Members.

4. The said Province shall be represented, in the first in-
stance, in the House of Commons of Canada, by four Members,'
and for that purpose shall be divided by proclamation of the
Governor-General, into four Electoral Districts, each of which
shall be represented by one Member: provided that on the com-
pletion of the census in the year 1881, and of each decennial
census afterwards, the representation of the said Province shall
be re-adjusted according to the provisions of the fifty-first sec-
tion of the British North America Act, 1867.

* The boundaries as here defined were afterwards altered, and
the area of the province enlarged.

* Since increased to four.
. '^nce increased.

900 CANADIAN CONSTITUTION: APPENDIX A.

5. Until the Parliament of Canada otherwise provides, the
qualification of voters at Elections® of Members of the House
of Commons shall be the same as for the Legislative Assembly
hereinafter mentioned: And no person shall be qualified to be
elected, or to sit and vote as a Member for any Electoral Dis-
trict, unless he is a duly qualified voter within the said Province.

6. For the said Province there shall be an officer styled the
Lieutenant Governor, appointed by the Governor General in
Council by instrument under the Great Seal of Canada.

'7. The Executive Council of the Province 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 persons.^

8. Unless and until the Executive Government of the Pro-
vince otherwise directs, the seat of Government of the same
shall be at Fort Garry,^ or within one mile thereof.

9. There shall be a Legislature for the Province, consisting
of the Lieutenant Governor, and of two Houses,^ styled respec-
tively, the Legislative Council of Manitoba, and the Legislative
Assembly of Manitoba.

[Sections 10-13 relate to the defunct Legislative Council.]

14. The Legislative Assembly shall be composed of twenty-
four 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 Members of the Legis-
lative Assembly shall be necessary to constitute a meeting of
the House for the exercise of its powers; and for that purpose
the Speaker shall be reckoned as a Member.

[Sections 16 to 18 relate to first elections, electoral districts,
and qualifications of voters. They are long since effete.]

19. Every Legislative Assembly shall continue 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 Legislature once at least
in every year, so that twelve months shall not intervene between

®The restriction imposed by the latter part of the section has
been removed.

' The provisions of this and the following sections, relating to
the provincial constitution, have all been the subject of provin-
cial legislation.

" Now " Winnipeg."

"Now only one. The legislative council was abolished by 39
Vict. c. 29 (Man.).

MAJSriTOBA ACT. 901

the last sitting of the Legislature in one Session and its first
sitting in the next Session.

21. The following provisions of the British North America
Act, 1867, respecting the House of Commons of Canada, shall
extend and apply to the Legislative 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
Assenibly.

22. In and for the Province, the said Legislature may ex-
clusively 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 or practice in the Province
at the Union: —

(2) An appeal shall lie to the Governor General in Council
from any Act or decison of the Legislature of the Province, or
of any Provincial Authority affecting any right or privilege of
the Protestant or Roman Catholic minority of the Queen's sub-
jects in relation to Education;

(3) In case any such Provincial Law, as from time to time
seems to the Governor General in Council requisite for the due
execution of the provisions of this section, is not made, or in
case any decision of the Governor General in Council or 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 circumstances of each case require,
the Parliament of Canada may make remedial Laws for the
due execution of the provisions of this section, and of any de-
cision of the Governor-General in Council under this section.

23. Either the Eilglish or the French language may be used
by any person in the debates of the Houses of the Legislature,
and both those languages shall be used in the respective Records
and Journals of those Houses; and either of those languages
may be used by any person, or in any Pleading or Process, in
or issuing from any Court of Canada established under the
British North America Act, 1867, or in or from all or any of the
Courts of the Province. The Acts of the Legislature shall be
printed and published in both those languages.

24. Inasmuch as the Province is not in debt, the said Pro-
vince shall be entitled to be paid, and to receive from the
Government of Canada, by half-yearly payments in advance,

"This matter is fully dealt with, ante, p. 783.

902 CANADIAN CONSTITUTION: APPENDIX A.

interest at the rate of five per centum per annum on the sum
of four hundred and seventy-two thousand and ninety dollars.

25. The sum of thirty thousand dollars shall be paid yearly
by Canada to the Province, for the support of its Government
and Legislature, and an annual grant, in aid of the said Pro-
vince, 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 shewn by the census
that shall be taken thereof in the year one thousand eight
hundred and eighty-one, and by each subsequent decennial
census, until its population amounts to four hundred thousand
souls, at which amount suqh grant shall remain thereafter, 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.

26. Canada will assume and defray the charges for the fol-
lowing 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.

6. Militia.

7. Geological Survey.

8. The Penitentiary.

9. 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 Government,^ and as are or
may be allowed to the other Provinces.

[Sections ■21-29 relate to customs and inland revenue and are
effete. ^

30. All ungranted or waste lands in the Province shall be,
from and after the date of the said transfer, vested in the
Crown, and 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 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 residents, it is hereby enacted, that,
under regulations to be from time to time made by the Governor-

MANITOBA ACT. 903

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 families residing in the
Province at the time of the said transfer to Canada, and the
same shall be granted to the said children respectively, in such
mode and on such conditions as to settlement and otherwise, as
the Governor-General in Council may from time to time de-
termine.

32. For the quieting of titles, and assuring to the settlers
in the Province the peaceable possession of the lands now held
by them, it is enacted as follows: —

1. All grants of land in freehold made by the Hudson's Bay
Company up to the eighth day of March, in the year 1869, shall,
if required by the owner, be 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 occupancy with the sanction and under the
license and authority of the Hudson's Bay Company up to the
eighth day of March 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 Pro-
vince 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.

5. The Lieutenant-Governor is hereby authorized, under regu-
lations to be made from time to time by the Governor-General
in Council, to make all such provisions for ascertaining and
adjusting, on fair and equitable terms, the rights of cutting
Hay held and enjoyed by the settlers in the Province, and for
the commutation of the same by grants of land from the Crown.

33. The Governor-General in Council shall from time to time
settle and appoint the mode and form of Grants of Land from
the Crown, and any Order in Council for that purpose when
published in the Canada 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 prejudice or affect
the rights or properties of the Hudson's Bay Company, as con-
tained in the conditions under which that Company surrendered
Rupert's Land to Her Majesty.

[Sections 35 and 36 are long since effete.]

904 CANADIAN constitution: appendix a.

4. THE BRITISH NORTH AMERICA ACT, 1871.

34-35 Vict. Cap. 28.

An Act respecting the establishment of Provinces in the
Dominion of Canada.

[29th June, 1871.]

Whereas doubts have been entertained respecting the powers
of the Parliament of Canada to establish Provinces in Terri-
tories 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 the said Parlia-
ment:

Be it 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: —

1. This Act may be cited for all purposes as " The British
North America Act, 1871."

2. The Parliament of Canada may from time to time establish
new Provinces in any territories forming for the time being
part of the Dominion of Canada, but not included in any Pro-
vince thereof, and may, at the time of such establishment, make
provision for the constitution and administration of any such
Province, and for the passing of laws for the peace, order, and
good government of such Province, and for its representation in
the said Parliament.

3. The Parliament of Canada may from time to time with the
consent of the Legislature of any Province of the said Dominion,
increase, diminish, or otherwise alter the limits of such Province,
upon such terms and conditions as may be agreed to by the said
Legislature, and may, with the like consent, make provision
respecting the effect and operation of any such increase or
diminution or alteration of territory in relation to any Province
affected thereby.

4. The Parliament of Canada may from time to time make
provision for the administration, peace, order and good govern-
ment of any territory not for the time being included in any
Province.

5. The following Acts passed by the said Parliament of
Canada, and intituled respectively: "An Act for the temporary
government of Rupert's Land and the North- Western Territory
when united with Canada," and "An Act to amend and con-
tinue the Act thirty-two and thirty-three Victoria, chapter three,

B. N. A. ACT, 1871. 905

and to establish and provide for the ' government of the Province
of Manitoba,' " shall be and be deemed to have been valid and
effectual for all purposes whatsoever from the date at which
they respectively received the assent, in the Queen's name, of
the Governor-General of the said Dominion of Canada.

6. Except as provided by the third section of this Act, it
shall not be competent for the Parliament of Canada to alter
the provisions of the last-mentioned Act of the said Parliament,
in so far as it relates to the Province of Manitoba, or of any other
Act hereafter establishing new Provinces in the said Dominion,
subject always to the right of the Legislature of the Province
of Manitoba to alter from time to time the provisions of any
law respecting the qualification of electors and members of the
Legislative Assembly, and to make laws respecting elections in
the said Province.

5. ORDER IN COUNCIL RESPECTING THE PROVINCE OF
BRITISH COLUMBIA.^

At the Court of Windsor, the 16th day of May, 1871.

Present: The Queen's Most Excellent Majesty, His Royal
Highness Prince Arthur, Lord Privy Seal, Earl Cowper, Earl
of Kimberley, Lord Chamberlain, Mr. Secretary Card well, and
Mr. Ayrton.

Whereas by the ''British North America Act, 1867," pro-
vision 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, by and with the advice of Her Majesty's Most
Honourable Privy Council, on addresses from the houses of
parliament of Canada and of the legislature of the colony of
British Columbia, to admit that colony into the said union, on
such terms and conditions as should be in the addresses ex-
pressed, 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 council in that behalf should
have 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 parliament
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

'■ See Dom. Stat., 1872, p. Ixxxiv. See also B. N. A. Act, sec.
146.

906 CANADIAN CONSTITUTION: APPENDIX A.

and with the advice of Her Most Honorable Privy Council, under
the one hundred and forty-sixth section of the hereinbefore re-
cited 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 terms and conditions, it is hereby 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 twentieth day of July, one
thousand eight hundred and seventy-one, the said colony of
British ColumMa shall de admitted into and become part of the
Dominion of Canada, upon the terms and conditions set forth,
in the hereinbefore recited addresses. And, in accordance with
the terms of the said addresses relating to the electoral districts
of British Columbia, for which the first election of members to
serve in the House of Commons of the said Dominion shall take
place, it is hereby further ordered and declared that such
electoral districts shall be as follows:

[Here follows an enumeration of those 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.^

To the Queen's Most Excellent Majesty.

Most Gracious Sovereign,

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

'' The address of the House of Commons is identical in its terms.

ORDER ADMITTING BRITISH COLUMBIA. 907

of Canada, upon the terms and conditions mentioned in the
said address, which is as follows:

To the Queen's Most Excellent Majesty.
Most Gracious Sovereign,

We, your Majesty's most dutiful and loyal subjects, the mem-
bers of thei legislative council of British Columbia, in council
assembled, humbly approach your Majesty for the purpose of
representing: —

That, during the last session of the 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 government 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 five 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 population 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 legislature,
to wit, an annual subsidy of 35,000 dollars, and an annual grant
equal to 80 cents per head of the said population of 600,000, both
half-yearly in advance, such grant of 80 cents per head to be
augmented in proportion to the increase of population, as may

908 CANADIAN CONSTITUTION: APPENDIX A.

be shown by each subsequent decennial census, until the popula-
tion amounts to 400,000, at which rate such grant shall there-
after remain, it being understood that the first census be taken
in the year 1881.

4. The Dominion will provide an efficient mail service, fort-
nightly, by steam communication between Victoria and San
Francisco, and twice a week between Victoria and Olympia;
the vessels to be adapted for the conveyance of freight and
passengers.

5. Canada will assume and defray the charges for the fol-
lowing services:

A. Salary of the Lieutenant-Governor;

B. Salaries and allowances of the judges of the Superior

Courts and the County or District Courts ;

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, quar-

antine and marine hospitals, including a marine hospital
at Victoria;
H. The geological survey;
I. The penitentiary;

A.nd such, further 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.

6. Suitable pensions, such as shall be approved of by Her
Majesty's government, shall be provided by the government of
the Dominion for those of Her Majesty's servants in the colony
whose position and emoluments derived therefrom would be
affected by political changes on the admission of British Col-
umbia 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 rail-
way from the Pacific coast and the systems 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

"See 35 Vict. c. 37. On 27th March, 1872, British Columbia
decided to accept the Canadian tariff, hence the enactment.

ORDER ADMITTING BRITISH COLUMBIA. 909

other provinces of the Dominion, those goods, wares, or mer-
chandise may, from and after the union, be imported into British
Columbia 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 assimilation 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 three members, and by six members in the House
of Commons. The representation to be increased under the pro-
visions 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 Esqui-
mau.

10. The provisions of the "British North America Act, 1867"
shall (except those parts thereof which are in terms made, or by
reasonable intendment may be held to be specially applicable to
and only affect one and not the whole of the provinces com-
prising the Dominion, and except so far as the same may be
varied by this minute) be applicable to British Columbia in the
same way and to the like extent as they apply to the other pro-
vinces 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
the 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 such 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 further, 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 appropriated in
such manner as the Dominion government may deem advisable
in furtherance of the construction of the said railway, a similar
extent of public lands 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 appro-
priated 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

910 CANADIAN CONSTITUTION: APPENDIX A.

held under pre-emption right or by Crown grant within the
limits of the tract of land in British Columbia to be so con-
veyed to the Dominion government shall be made good to the
Dominion from contiguous public lands; and provided further,
that until the commencement, within two years, as aforesaid,
from the date of the union, of the construction of the said rail-
way, the government of British Columbia shall not sell or alien-
ate 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
construction of the said railway, the Dominion government
agree to pay to British Columbia from the date of the union, thef
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 ex-
ceeding £100,000 sterling, as may be required for the construc-
tion of a first-class graving dock at Esquimau.

13. The charge of the Indians, and the trusteeship and man-
agement 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 has
hitherto been the practice of the British Columbia government
to appropriate for that purpose, shall from time to time be con-
veyed by the local government to the Dominion government
in trust for the use and benefit of the Indians on application of
the Dominion government; and in case of disagreement between
the two governments respecting the quantity of such tracts of
land to be so granted, the matter shall be referred for the de-
cision of the Secretary of State for the colonies.

14. The constitution of the executive authority and of the
legislature of British ColumMa shall subject to the provisions
of the *' British North America Act, 1867 " continue as existing
at the time of the union until altered under the authoirty of the
Said Act, it being at the same time understood that the govern-
ment of the Dominion will readily consent to the introduction
of responsible government when desired by the inhabitants of
Britsh Columbia, and it being likewise understood that it is the
intention of the Governor of British Columbia, under the auth-
ority of the Secretary of State for the colonies, to amend the

ORDER ADMITTING BRITISH COLUMBIA. 911

existing constitution of the legislature by providing that a
majority of its members shall be elective.^

The union shall take effect according to the foregoing terms
and conditions on such day as Her Majesty by and with the
advice of Her Most Honorable Privy Council may appoint (on
addresses from the legislature of the colony of British Columbia
and of the Houses of Parliament 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 provisions of the
146th section of the "British North America Act, 1867," to
admit British Columbia into the union or Dominion of Canada,
on the basis of the terms and conditions 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 members to serve in the House
of Commons shall 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.)

We further humbly represent, that the proposed terms and
conditions of union of British Columbia with Canada, as stated

"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 Vict.). This statute recites an
Imperial Order in Council of 9th 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, 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 legislative assembly of wholly elective members.

912 CANADIAN CONSTITUTION: APPENDIX A.

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
embodied in a report of a committee of the Privy Council,
approved by His Excellency the Governor-General in Council, on
the 1st July, 1870, which approved report is as follows:
Copy of a report of a committee of the Honorable the Privy
Council, approved ly his Excellency the Governor-General
in Council, on the 1st of July, 1870.

The committee of the Privy Council have had under con-
sideration a despatch, dated the 7th May, 1870, from the Governor
of British Columbia, together with certain resolutions sub-
mitted by the government of that colony to the legislative council-
thereof — both hereunto annexed — on the subject of the proposed
union of Britsh 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 ques-
tions connected with that important subject, the committee now
respectfully submit for Your Excellency's approval, the follow-
ing terms and conditions to form the basis of a political union
between British Columbia and the Dominion of Canada: (Setting
out 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 committee 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 146th clause of " The
British North America Act, 1867," to unite British Columbia
with the Dominion of Canada, on the terms and conditions above
set forth.

The Senate, Wednesday, April 5th, 1871.

(Signed.) Joseph Cauchon, Speaker.

6. ORDER IN COUNCIL ADMITTING PRINCE EDWARD

ISLAND.
At the Court of Windsor, the 26th- day of June, 1873.
Present: The Queen's Most Excellent Majesty, Lord President,
Earl Granville, Earl of Kimberley, Lord Chamberlain, and Mr.
Gladstone.

OKDER ADMITTING PEINCE EDWARD ISLAND. 913

Whereas by the " British North America Act, 1867," pro-
vision 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, by and with the advice of Her Majesty's Most
Honorable Privy Council, on addresses from the Houses of Parlia-
ment of Canada, and of the legislature of the colony of Prince
Edward Island, to admit 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 pro-
visions of the said Act; and it was further enacted that the
provisions- of any Order in Council in that behalf, should have
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 Parlia-
ment of Canada, and from the Legislative Council and House
of Assembly of Prince Edward Island 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 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 elec-
tion 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 constitute
one district, to be designated "King's County District," and
return two members; that the election of members to serve in

CAN. CON. — 58

914 CANADIAN CONSTITUTION: APPENDIX A.

the House of Commons of Canada, for such electoral 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 to 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 con-
troverted 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 other-
wise than by a dissolution, and to all 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 mem-
bers 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 Kimberley, 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 Gracious Sovereign,

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 represent-
ing:—

That 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 Dominion 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 " British North
America Act, 1867," on the conditions hereinafter set forth,
which have 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;

ORDER ADMITTING PRINCE EDWARD ISLAND. 915

That in consideration of the large expenditure authorized
by the parliament of Canada for the construction of railways
and canals, and in view of a possibility of a re-adjustment of
the financial arrangements between Canada and the several pro-
vinces 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 thousand and fifty dollars;

That Prince Edward Island not having incurred debts equal
to the sum mentioned in the next preceding resolution, 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 indebtedness and the amount of indebted-
ness authorized as aforesaid, viz., four millions seven hundred
and one thousand and fifty dollars;

That Prince Edward Island shall be liable to Canada 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 dollars and shall be chargeable with in-
terest at the rate of five per cent, per annum on such 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 maintenance of local works,
the Dominion government shall pay by half-yearly instalments,
in advance, to the government of Prince Edward Island, forty-
five 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 consideration 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 equal 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 in-
crease of population of the Island as may be shown by each
subsequent decennial census, until the population amounts to
four hundred thousand, at which rate such grant shall there-
after remain, it being understood that the next census shall be
taken in the year 1881.

916 CANADIAN CONSTITUTION: APPENDIX A.

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 department of customs ;

The postal department;

The protection of fisheries;

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 communication with the Inter-
colonial Railway and the railway system of the Dominion ;

The maintenance of telegraphic communication 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 construc-
tion 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 pay-
ment of sixty-nine thousand dollars. The purchase to include
the land on which the building stands, and a suitable space of
ground in addition, for yard room, etc.;

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 government 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 to be re-adjusted,
from time to time, under the provisions of the " British North
America Act, 1867;"

ORDER ADMITTING PRINCE EDWARD ISLAND. 917

That the constitution of the executive authority and of the
legislature of Prince Edward Island, shall, subject to the pro-
visions of the ''British North America Act, 1861,'' continue as
at the time of the union, until altered under 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, 1867,"
shall, except those parts thereof which are in terms made, or by
reasonable intendment may be held to be specially applicable to,
and only to affect one and not the whole of the provinces now
composing the Dominion, and except so far as the same may be
varied by these resolutions, be applicable to Prince Edward
Island, in the same way 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 by 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 the 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 Honorable Privy Council, under the provisions of the 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 conditions 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 legislature,
the latter specifying the electoral districts as set out in the
Order in Council.

918 CANADIAN CONSTITUTION: APPENDIX A.

7. THE BRITISH NORTH AMERICA ACT, 1886.
49-50 Victoria (Imp.), Chapter 35.
An Act respecting the Representation in the Parliament of
Canada of Territories which for the time being form part
of the Dominion of Canada, 'but are not included in any
Province.

[25th June, 1886.}

"Whereas it is expedient to empower the Parliament of Canada
to provide for the representation in the Senate and House of
Commons of Canada, or either of them, of any territory which
for the time being forms part of the Dominion of Canada, but
is not included in any Province:

Be it, therefore, enacted by the Queen's most Excellent
Majesty, by and with the advice and consent of the Lords
Spiritual and Temporal, and Commons, in this present Parlia-
ment assembled, and by the authority of the same, as follows: —

1. The Parliament of Canada may, from time to time, make
provision for the representation in the Senate and House of
Commons of Canada, or in either of them, of any territories
which for the time being form part of the Dominion of Canada,
but are not included in any Province thereof.

3. Any Act passed by the Parliament of Canada before the
passing of this Act for the purpose mentioned in this Act shall,
if not disallowed by the Queen, be, and shall be deemed to have
been, valid and effectual from the date at which it received the
assent, in Her Majesty's name, of the Governor-General of
Canada.

It is hereby declared that any Act passed by the Parliament
of Canada, whether before or after the passing of this Act, for
the purpose mentioned in this Act or in the British North
America Act, 1871, has effect, notwithstanding anything in the
British North America Act, 1867, and the number of Senators
or the number of Members of the House of Commons specified
in the last-mentioned Act is increased by the number of Senators
or of Members, as the case may be, provided by any Act of the
Parliament of Canada for the representation of any provinces
or territories of Canada.

3. This Act may be cited as the British North America Act,
1886.

This Act and the British North America Act, 1867, and the
British North America Act, 1871, shall be construed together,
and may be cited together as the British North America Acts,
1867 to 1886.

ALBERTA ACT. 919

8. DEPUTY-SPEAKER OF SENATE ACT.
59 Vict. cap. 3.
An Act for Removing Douhts as to the Validity of an Act passed
ty the Parliament of the Dominion of Canada respecting
the Deputy -Speaker of the Senate.

loth September 1895.]
Whereas the Parliament of Canada have passed an Act in-
tituled "An Act respecting the Speaker of the Senate," and
providing for the appointment of a deputy during the illness or
absence of the Speaker of the Senate, and containing a sus-
pending clause to the effect that the Act should not come into
force until Her Majesty's pleasure thereon has been signified
by proclamation in the Canada Gazette:

And whereas doubts have arisen as to the power of the Parlia-
ment of Canada to pass that Act, and it is expedient to remove
those doubts:

Be it, therefore, enactecj by the Queen's most Excellent
Majesty, by and with the advice and consent of the Lords
Spiritual and Temporal, and Commons, in this present Parlia-
ment assembled, and by the authority of the same, as follows: —

1. The Act of the Parliament of Canada passed in the session
held in the fifty-seventh and fifty-eighth years of Her Majesty's
reign, entitled " An Act respecting the Speaker of the Senate,"
shall be deemed to be valid, and to have been valid, as from
the date at which the royal assent was given thereto by the
Governor-General of the Dominion of Canada.

2. This Act may be cited as the Canadian Speaker (Appoint-
ment of Deputy) Act, 1895, Session 2.

9. THE ALBERTA ACT,

4-5 Edw. VII.

Chapter 3.

An Act to establish and provide for the Government of the

Province of Alherta.

[Assented to 20th July, 1905.]
Whereas in and by The British North America Act, 1871,
being chapter 28 of the Acts of the Parliament of the United
Kingdom passed in the session thereof held in the 34th and 35th
years of the reign of her late Majesty Queen Victoria, it is enacted
that the Parliament of Canada may from time to time establish
new provinces in any territories forming for the time being
part of the Dominon of Canada, but not included in any province

920 CANADIAN CONSTITUTION: APPENDIX A.

thereof, and may, at the time of such establishment, make pro-
vision for the constitution and administration of any such pro-
vince, and for the passing of laws for the peace, order and good
government of such province and for its representation in the
said Parliament of Canada;

And whereas it is expedient to establish as a province the
territory hereinafter described, and to make provision for the
government thereof and the representation thereof in the Parlia-
ment of Canada; Therefore, His Majesty, by and with the advice
and consent of the Senate and House of Commons of Canada,
enacts as follows: —

1. This Act may be cited as The Alberta Act.

2. The territories comprised within the following boundaries,
that is to say, — commencing at the intersection of the inter-
national boundary dividing Canada from the United States of
America by the fourth meridian in the system of Dominion
lands surveys; thence westerly along the said international
boundary to the eastern boundary of the province of British
Columbia; thence northerly along the said eastern boundary
of the province of British Columbia to the north-east corner of
the said province; thence easterly along the said parallel of the
sixtieth degree of north latitude to the fourth meridian in the
system of Dominion land surveys as the same may be hereafter
defined in accordance with the said system ; thence southerly
along the said fourth meridian to the point of commencement
— is hereby established as a province of the Dominion of Canada,
to be called and known as the province of Alberta.

3. The provisions of The British North America Acts, 1867
to 1886, shall apply to the province of Alberta in the same way
and to the like extent as they apply to the provinces heretofore
comprised in the Dominion, as if the said province of Alberta had
been one of the provinces originally united, except in so far as
varied by this Act and except such provisions as are in terms
made, or by reasonable intendment may be held to be, specially
applicable to or only to affect one or more and not the whole
of the said provinces.

4. The said province shall be represented in the Senate of
Canada by four members: Provided that such representation
may, after the completion of the next decennial census, be from
time to time increased to six by the Parliament of Canada.

5. The said province and the province of Saskatchewan shall,
until the termination of the Parliament of Canada existing at
the time of the first readjustment hereinafter provided for, con-
tinue to be represented in the House of Commons as provided

ALBERTA ACT. 921

by chapter 60 of the statutes ®f 1903, each of the electoral dis-
tricts defined in that part of the schedule to the said Act which
relates to the North-West Territories, whether such district is
wholly in one of the said provinces, or partly in one and partly
in the other of them, being represented by one member.

6. Upon the completion of the next quinquennial census for
the said province, the representation thereof shall forthwith be
readjusted by the Parliament of Canada in such a manner that
there shall be assigned to the said province such a number of
members as will bear the same proportion to the number of its
population ascertained at such quinquennial census as the
number sixty-five bears to the number of the population of
Quebec as ascertained at the then last decennial census; and
in the computation of the number of members for the said
province a fractional part not exceeding one-half of the whole
number requisite for entitling the province to a member shall
be disregarded, and a fractional part exceeding one-half of that
number shall be deemed equivalent to the whole number, and
such readjustment shall take effect upon the termination of the
Parliament then existing.

2. The representation of the said province shall thereafter
be readjusted from time to time according to the provisions of
section 51 of The British North America Act, 1867.

7. Until the Parliament of Canada otherwise provides, the
qualifications of voters for the election of members of the House
of Commons and the proceedings at and in connection with elec-
tion of such members shall, mutatis mutandis, be those pre-
scribed by law at the time this Act comes into force with respect
to such elections in the North-West Territories.

8. The Executive Council of the said province shall be com-
posed of such persons, under such designations, as the Lieuten-
ant-Governor from time to time thinks fit.

9. Unless and until the Lieutenant-Governor in Council of
the said province otherwise directs, by proclamation under the
Great Seal, the seat of government of the said province shall
be at Edmonton.

10. All powers, authorities and functions which under any
law were before the coming into force of this Act vested in or
exercisable by the Lieutenant-Governor of the North-West Terri-
tories, with the advice, or with the advice and consent, of the
Executive Council thereof, or in conjunction with that Council
or with any member or members thereof, or by the said Lieuten-
ant-Governor individually, shall, so far as they are capable of

922 CANADIAN CONSTITUTION: APPENDIX A.

being exercised after the coming into force of this Act in rela-
tion to the government of the said province, be vested in and
shall or may be exercised by the Lieutenant-Governor of the said
province, with the advice or with the advice and consent of, or
in conjunction with, the Executive Council of the said province
or any member or members thereof, or by the Lieutenant-
Governor individually, as the case requires, subject nevertheless
to be abolished or altered by the legislature of the said province.

11. The Lieutenant-Governor in Council shall, as soon as may
be after this Act comes into force, adopt and provide a Great
Seal of the said province, and may, from time to time, change
such seal.

12. There shall be a legislature for the said province con-
sisting of the Lieutenant-Governor and one house, to be styled
the Legislative Assembly of Alberta.

13. Until the said Legislature otherwise provides, the Legis-
lative Assembly shall be composed of twenty-five members to be
elected to represent the electoral divisions defined in the
Schedule to this Act.

14. Until the said Legislature otherwise determines, all the
provisions of the law with regard to the constitution of the
Legislative Assembly of the North-West Territories and the
election of members thereof shall apply, mutatis mutandis, to
the Legislative Assembly of the said province and the elections
of members thereof respectively.

15. The writs for the election of the members of the first
Legislative Assembly of the said province shall be issued by
the Lieutenant-Governor and made returnable within six months
after this Act comes into force.

16. All laws and all orders and regulations made thereunder,
so far as they are not inconsistent with anything contained in
this Act, or as to which this Act contains no provision intended
as a substitute therefor and all courts of civil and criminal
jurisdiction, and all commissions, powers, authorities and func-
tions, and all officers and functionaries, judicial, administrative
and ministerial, existing immediately before the coming into
force of this Act in the territory hereby established as the pro-
vince of Alberta, shall continue in the said province as if this
Act and The Saskatchewan Act had not been passed; subject
nevertheless, except with respect to such as are enacted by or
existing under Acts of the Parliament of Great Britain, or of
the Parliament of the United Kingdom of Great Britain and
Ireland, to be repealed, abolished or altered by the Parliament
of Canada, or by the legislature of the said province, according

ALBERTA ACT. 923

to the authority of the Parliament or of the said legislature:
Provided that all powers, authorities and functions which under
any law, order or regulation were, before the coming into force
of this Act, vested in or exercisable by any public officer or func-
tionary of the North-West Territories shall be vested in and
exercisable in and for the said province by like public officers
and functionaries of the said province when, appointed by com-
petent authority.

2. The legislature of the province may, for all purposes
affecting or extending to the said province, abolish the Supreme
Court of the North-West Territories, and the offices both judicial
and ministerial thereof, and the jurisdiction, powers and auth-
ority belonging or incident to the said court: Provided that, if,
upon such abolition, the Legislature constitutes a superior court
of criminal jurisdiction, the procedure in criminal matters then
obtaining in respect of the Supreme Court of the North-West
Territories shall, until otherwise provided by competent auth-
ority, continue to apply to such superior court, and that the
Governor in Council may at any time and from time to time
declare all or any part of such procedure to be inapplicable to
such superior court.

3. All societies or associations incorporated by or under the
authority of the legislature of the North-West Territories exist-
ing at the time of the coming into force of this Act which include
within their objects the regulation of the practice of, or the
right to practise, any profession or trade in the North-West
Territories, such as the legal or the medical profession, dentistry,
pharmaceutical chemistry and the like, shall continue, subject,
however, to be dissolved and abolished by order of the Governor
in Council, and each of such societies shall have power to
arrange for and effect the payment of its debts and liabilities,
and the division, disposition or transfer of its property.

4. Every joint stock company lawfully incorporated by or
under the authority of any ordinance of the North-West Terri-
tories shall be subject to the legislative authority of the Pro-
vince of Alberta if —

(a) The head office or the registered office of such company
is at the time of the coming into force of this Act situate in the
Province of Alberta; and

( & ) The powers and objects of such company are such as
might be conferred by the legislature of the said province and
not expressly authorized to be executed in any part of the North-
West Territories beyond the limits of the said province.

924 CANADIAN CONSTITUTION : APPENDIX A.

17. Section 93 of The British North America Act, 1867, shall
apply to the said province, with the substitution for paragraph
(1) of the said section 93, of the following paragraph: —

"(1) Nothing in any such law shall prejudicially affect any
right or privilege with respect to the separate schools which any
class of persons have at the date of the passing of this Act,
under the terms of chapters 29 and 30 of the Ordinances of the
North-West Territories, passed in the year 1901, or with respect
to religious instruction in any public or separate school as pro-
vided for in the said ordinances."

2. In the appropriation by the Legislature or distribution by
the Government of the province of any moneys for the support
of schools organized and carried on in accordance with the said
chapter 29, or any Act passed in amendment thereof or in sub-
stitution therefor, there shall be no discrimination against
schools of any class described in the said chapter 29.

3. Where the expression " by law " is employed in paragraph
(3) of the said section 93, it shall be held to mean the law as
set out in the said chapters 29 and 30 ; and where the expression
"at the union," is employed, in the said paragraph (3), it shall
be held to mean the date at which this Act comes into force.

18. The following amounts shall be allowed as an annual
subsidy to the Province of Alberta, and shall be paid by the
Government of Canada, by half-yearly instalments in advance,
to the said province, that is to say: —

(a) For the support of the Government and Legislature, fifty
thousand dollars;

(&) On an estimated population of two hundred and fifty
thousand, at eighty cents per head, two hundred thousand
dollars, subject to be increased as hereinafter mentioned, that
is to say: — a census of the said province shall be taken in every
fifth year reckoning from the general census of one thousand
nine hundred and one, and an approximate estimate of the
population shall be made at equal intervals of time between each
quinquennial and decennial census; and whenever the population
by any such census or estimate, exceeds two hundred and fifty
thousand, which shall be the minimum on which the said allow-
ance shall be calculated, the amount of the said allowance shall
be increased accordingly, and so on until the population has
reached eight hundred thousand souls.

19. Inasmuch as the said province is not in debt, it shall be
entitled to be paid and to receive from the Government of
Canada, by half-yearly payments in advance, an annual sum
of four hundred and five thousand three hundred and seventy-

ALBERTA ACT. 925

five dollars, being the equivalent of interest at the rate of five
per cent, per annum on the sum of eight million one hundred
and seven thousand five hundred dollars.

20. Inasmuch as the said province will not have the public
land as the source of revenue, there shall be paid by Canada to
the province by half-yearly payments, in advance, an annual
sum based upon the population of the province as from time
to time ascertained by the quinquennial census thereof, as
follows: —

The population" of the said province being assumed to be at
present two hundred and fifty thousand, the sum payable until
such population reaches four hundred thousand, shall be three
hundred and seventy thousand dollars;

Thereafter, until such population reaches eight hundred
thousand, the sum payable shall be five hundred and sixty-two
thousand five hundred dollars;

Thereafter, until such population reaches one million two
hundred thousand, the sum payable shall be seven hundred and
fifty thousand dollars;

And thereafter the sum payable shall be one million one
hundred and twenty-five thousand dollars.

2. As an additional allowance in lieu of public lands, there
shall be paid by Canada to the province annually by half-yearly
payments in advance, for five years from the time this Act comes
into force, to provide for the construction of necessary public
buildings, the sum of ninety-three thousand seven hundred and
fifty dollars.

21. All Crown lands, mines and minerals and royalties in-
cident thereto, and the interest of the Crown in the waters
within the province under The North-West Irrigation Act, 1898,
shall continue to be vested in the Crown and administered by
the Government of Canada for the purposes of Canada, subject
to the provisions of any Act of the Parliament of Canada with
respect to road allowances and roads or trails in force immedi-
ately before the coming into force of this Act, which shall apply
to the said province with the substitution therein of the said
province for the North-West Territories.

22. All properties and assets of the North-West Territories
shall be divided equally between the said province and the pro-
vince of Saskatchewan, and the two provinces shall be jointly
and equally responsible for all debts and liabilities of the North-
west Territories: Provided that, if any difference arises as to
the division and adjustment of such properties, assets, debts and
liabilities, such difference shall be referred to the arbitrament

926 CANADIAN CONSTITUTION: APPENDIX A.

of three arbitrators, one of whom shall be chosen by the
Lieutenant-Governor in Council of each province and the third
by the Governor in Council. The selection of such arbitrators
shall not be made until the legislatures of the provinces have
met, and the arbitrator chosen by Canada shall not be resident
of either province.

23. Nothing in this Act shall in any way prejudice or affect
the rights or properties of the Hudson's Bay Company as con-
tained in the conditions under which that company surrendered
Rupert's Land to the Crown.

24. The powers hereby granted to the said province shall
be exercised subject to the provisions of section 16 of the con-
tract set forth in the schedule to chapter 1 of the statutes of
1881, being an Act respecting the Canadian Pacific Railway
Company.

25. This Act shall come into force on the first day of Sep-
tember, one thousand nine hundred and five.

SCHEDULE.
(Section 13.)

The province of Alberta shall be divided into twenty-five
electoral divisions which shall respectively comprise and consist
of the parts and portions of the province hereinafter described.

In the following descriptions where " meridians between
ranges " and " boundaries of townships " or " boundaries of
sections " are referred to as the boundaries of electoral divi-
sions, these expressions mean the meridians, boundaries of
townships or boundaries of sections, as the case may be, in
accordance with the Dominion Lands system of surveys, and
include the extension thereof in accordance with the said system.

Names and Descriptions of Divisions.

(1) The electoral division of Medicine Hat, bounded as
follows: —

Commencing at the intersection of the eastern boundary of
the said province of Alberta by the north boundary of the 38th
township; thence westerly along the north boundary of the 38th
townships to the meridian between the 10th and 11th ranges,
west of the 4th meridian; thence southerly along the meridian
between the 10th and 11th ranges to the southern boundary of
the said province of Alberta; thence easterly along the said
southern boundary of the province of Alberta to the southeast
corner thereof; thence northerly along the eastern boundary of
the said province of Alberta to the point of commencement.

AIvBERTA act: SCHEDULE. 927

(2) The electoral division of Cardston, bounded as follows: —

Commencing at the southern boundary of the said province
of Alberta where it is intersected by the meridian between
the 10th and 11th ranges, west of the 4th meridian; thence
northerly along the said meridian between the 10th and 11th
ranges to the north boundary of the 5th township; thence
westerly along the north boundary of the 5th township to the St.
Mary river; thence along the St. Mary river up stream to the
south boundary of the Blood Indian Reserve; thence westerly
along the said south boundary of the Blood Indian Reserve
to the meridian between the 27th and 28th ranges west of
the 4th meridian ; thence southerly along the said meridian
between the 27th and 28th ranges to the north boundary of
the 2nd township; thence westerly along the north boundary of
the 2nd townships to the meridian between the 29th and 30th
ranges west of the 4th meridian; thence southerly along the
said meridian between the 29th and 30th ranges to the southern
shore of the Waterton Lakes; thence in a westerly and south-
erly direction and following the southerly and eastern shores
of the said Waterton Lakes to the southern boundary of the
said province of Alberta; thence easterly along the said southern
boundary of the province of Alberta to the point of commence-
ment.

(3) The Electoral division of Lethbridge, bounded as follows:

Commencing at the meridian between the 10th and 11th
ranges, west of the 4th meridian, where it is intersected by
the north boundary of the 5th township; thence northerly
along the said meridian between the 10th and 11th ranges to
the north boundary of the 14th townships; thence westerly
along the north boundary of the 14th townships to the Bow
river ; thence along the Bow river up stream to the north
boundary of the 19th township; thence westerly along the north
boundary of the 19th townships to the meridian between the
22nd and 23rd ranges, west of the 4th meridian; thence south-
erly along the said meridian between the 22nd and 23rd ranges
to the Belly river; thence along the St. Mary river up stream
to the north boundary of the 5th township, thence easterly along
the north boundary of the 5th townships to the point of com-
mencement.

(4) The electoral division of Macleod, bounded as follows: —

Commencing at the south boundary of the Blood Indian
Reserve where it is intersected by the St. Mary river; thence
along the said St. Mary river down stream to the Belly river;
thence along the said Belly river up stream to its most northerly

928 CANADIAN constitution: appendix a.

intersection with the meridian between the 22nd and 23rd
ranges, west of the 4th meridian; thence northerly along the
said meridian between the 22nd and 23rd ranges to the north
boundary of the 14th township ; thence westerly along the north
boundary of the 14th townships to the western boundary of the
province of Alberta; thence in a southerly direction and along
the said western boundary to the province of Alberta to the
north boundary of the 11th township; thence easterly along
the said north boundary of the 11th township to the 5th mer-
idian; thence southerly along the said 5th meridian to the north
boundary of the 10th township; thence easterly along the
said north boundary of the 10th township to the meridian
between the 29th and 30th ranges, west of the 4th meridian;
thence southerly along the said meridian between the 29th and
30th ranges to the north boundary of the 8th township; thence
easterly along the said north boundary to the 8th township to
the west boundary of the Peigan Indian Reserve; thence
southerly along the west boundary of the Peigan Indian Re-
serve to the south-west corner of the said Peigan Indian Re-
serve; thence easterly along the south boundary of the
said Peigan Indian Reserve to the south-east corner of the said
Reserve; thence in a straight line south-easterly to the north-
east corner of section 14 in the 6th township in the 27th range,
west of the 4th meridian; thence along the north boundary
of section 13 in the said 6th township and in the 27th range
to the meridian between the 26th and 27th ranges west of the
4th meridian; thence southerly along the said meridian between
the 26th and 27th ranges to the Belly river; thence along the
Belly river up stream to the south boundary of the said Blood
Indian Reserve; thence easterly along the said south boundary
of the Blood Indian Reserve to the point of commencement.

(5) The electoral division of Pincher Creek, bounded as fol-
lows:—

Commencing at the southern boundary of the said province
of Alberta, where it is intersected by the eastern shore of the
Waterton Lakes, thence northerly and easterly and along the
said eastern shores and the southern shores of the Waterton
Lakes to the meridian between the 29th and 30th ranges west
of the 4th meridian; thence northerly along the said meridian
between the 29th and 30th ranges to the north boundary of
the 2nd township; thence easterly along the said north
boundary of the 2nd townships to the meridian between the
27th and 28th ranges west of the 4th meridian; thence northerly
along the said meridian between the 27th and 28th ranges
to the south boundary of the Blood Indian Reserve; thence

AI^BERTA act: SCHEDULE. 929

westerly along the said south boundary of the Blood Indian
Reserve to the Belly river; thence along the said Belly river
down stream to the meridian between the 26th and 27th ranges
west of the 4th meridian; thence northerly along the said
meridian between the 26th and 27th ranges to the north-east
corner of section 13 in the 6th township in the said 27th range;
thence westerly along the north boundayy of the said section
13 to the north-east corner of section 14 of the said 6th town-
ship in the 27th range; thence in a straight line north-westerly
to the south-east corner of the Peigan Indian Reserve;
thence westerly along the south boundary of the said Peigan
Indian Reserve to the southwest corner of the said Indian
Reserve; thence northerly along the west boundary of the said
Indian Reserve to the north boundary of the 8th township;
thence westerly along the said north boundary to the 8th town-
ships to the meridian between the 29th and 30th ranges west
of the 4th meridian; thence northerly along the said meridian
between the 29th and 30th ranges to the north boundary of
the 10th township; thence westerly along the said north
boundary of the 10th township to the 5th meridian; thence
northerly along the said 5th meridian to the north boundary
of the 11th township ; thence westerly along the said north
boundary of the 11th townships to the western boundary of the
said province of Alberta; thence in a southerly direction and
along the said western boundary of the province of Alberta to
the southern boundary of the said province of Alberta; thence
easterly along the said southern boundary of the province of
Alberta to the point of commencement.

(6) The electoral division of Gleichen, bounded as follows: —
Commencing at the meridian between the 10th and 11th
ranges, west of the 4th meridian, where it is intersected by the
northern boundary of the 14th township; thence northerly along
the said meridian between the 10th and 11th ranges to the
north boundary of the 28th township; thence westerly along
the said north boundary of the 28th townships to the meridian
between the 2nd and 3rd ranges, west of the 5th meridian;
thence southerly along the said meridian between the 2nd and
3rd ranges, to the north boundary of the 22nd township; thence
easterly along the said north boundary of the 22nd townships
to Bow river; thence along the said Bow river down stream
to the north boundary of the 14th townships thence easterly
along the said north boundary of the 14th townships to the
point of commencement. Excepting and reserving out of the
said electoral division the city of Calgary, as incorporated by
ordinances of the North- West Territories.

CAN. CON. — 59

930 CANADIAN CONSTITUTION: APPENDIX a.

(7) The electoral division of Calgary City, comprising the
city of Calgary as incorporated by ordinance of the North-
West Territories.

(8) The electoral division of Rosebud, bounded as follows: —

Commencing at the meridian between the 10th and 11th
ranges, west of the 4th meridian, where it is intersected by the
north boundary of the 28th township ; thence northerly along
the said meridian between the 10th and 11th ranges to the
north boundary of the 33rd township; thence westerly along
the said north boundary of the 33rd townships to the western
boundary of the province of Alberta; thence in a southerly
direction and along the said western boundary of the province
of Alberta to the north boundary of the 28th township;
thence easterly along the said north boundary of the 28th
townships to the point of commencement.

(9) The electoral division of High River, bounded as fol-
lows:—

Commencing at the meridian between the 22nd and 23rd
ranges, west of the 4th meridian, where it is intersected by
the north boundary of the 14th township; thence northerly
along the said meridian between the 22nd and 23rd ranges to
the north boundary of the 19th township; thence easterly
along the said north boundary of the 19th townships to the
Bow river; thence along the said Bow river up stream to the
north boundary of the 22nd township ; thence westerly along
the said north boundary of the 22nd townships to the western
boundary of the province of Alberta; thence in a southerly
direction and along the said western boundary of the province
of Alberta to the north boundary of the 14th township; thence
easterly along the said north boundary of the 14th townships
to the point of commencement.

(10) The electoral division of Banff, bounded as follows: —

Commencing at the meridian between the 2nd and 3rd
ranges, west of the 5th meridian, where it is intersected by
the north boundary of the 22nd township; thence northerly
along the said meridian betweeji the 2nd and 3rd ranges to
the north boundary of the 28th township; thence westerly
along the said north boundary of the 28th townships to the
western boundary of the province of Alberta; thence in a south-
erly direction and along the said western boundary of the
province of Alberta to the north boundary of the 22nd town-
ship; thence easterly along the said north boundary of the
22nd townships to the point of commencement.

AI^BERTA act: SCHEDULE. 931

(11) The electoral division of Innisfail, bounded as follows: —
Commencing at the meridian between the 10th and 11th

ranges, west of the 4th meridian, where it is intersected by
the north boundary of the 33rd township ; thence northerly
along the said meridian between the 10th and 11th ranges to
the north boundary of section twenty-four in the 36th town-
ship; thence westerly along the section line which bounds on
the north the section comprising the most southerly two-thirds
of the 36th townships to the Red Deer river, in the 28th range,
west of the 4th meridian; thence along the said Red Deer river
down stream to the north boundary of section twenty-two,
in the 37th township; thence westerly along the section line
which bounds on the north the sections comprising the most
southerly two-thirds of the 37th townships to the western
boundary of the province of Alberta; thence in a southerly
direction and along the said western boundary of the province
of Alberta to the north boundary of the 33rd township ; thence
easterly along the north boundary of the 33rd townships to
the point of commencement.

(12) The electoral division of Red Deer, bounded as follows:
Commencing at the meridian between the 10th and 11th

ranges, west of the 4th meridian, where it is intersected by
the north boundary of section 24, in the 36th township; thence
northerly along the said meridian between the 10th and 11th
ranges to the said north boundary of the 38th township ; thence
westerly along the said north boundary of the 38th townships
to where the said north boundary of the 38th townships is
intersected by the Red Deer river in the 26th range, west of
the 4th meridian; thence along the said Red Deer river up
stream to the Blindman river; thence along the said Blindman
river up stream to the north boundary of the 39th township;
thence westerly along the said north boundary of the 39th
townships to the North Saskatchewan river; thence along the
North Saskatchewan river up stream to the section line which
bounds on the north the sections comprising the most southerly
two-thirds of the 37th townships; thence easterly along the
said section line which bounds on the north the sections com-
prising the most southerly two-thirds of the 37th townships to
the Red Deer river; thence along the Red Deer river up stream
to the north boundary of section twenty, in the 36th town-
ship ; thence easterly along the section line which bounds on
the north the sections comprising the most southerly two-
thirds of the said 36th townships to the point of commencement.

932 CANADIAN CONSTITUTION: APPENDIX A.

(13) The electoral division of Vermilion, bounded as follows: —
Commencing at the eastern boundary of the province of Al-
berta where it is intersected by the north boundary of the 38th
township ; thence northerly along the said eastern boundary of
the province of Alberta to the North Saskatchewan river; thence
along the North Saskatchewan river up stream to the meridian
between the 10th and 11th ranges, west of the 4th meridian;
thence southerly along the said meridian between the 10th and
11th ranges to the north boundary of the 54th township; thence
westerly along the said north boundary of the 54th townships to
the meridian between the 19th and 20th ranges, west of the 4th
meridian; thence southerly along the said meridian between the
19th and 20th ranges to the north boundary of section twenty-
four, in the 47th township; thence easterly along the section
line which bounds on the north the sections comprising the most
southerly two-thirds of the 47th townships to the meridian be-
tween the 10th and 11th ranges, west of the 4th meridian; thence
southerly along the said meridian between the 10th and 11th
ranges to the north boundary of the 38th township; thence
easterly along the said north boundary of the 38th township
to the point of commencement.

(14) The electoral division of Lacombe, bounded as follows:
Commencing at the meridian between the 10th and 11th

ranges, west of the 4th meridian, where it is intersected by the
north boundary of the 38th township; thence northerly along
the said meridian between the 10th and 11th ranges to the
north boundary of the 41st township; thence westerly along
the said north boundary of the 41st townships to the North
Saskatchewan river; thence along the said North Saskatche-
wan river up stream to the north boundary of the 39th town-
ship; thence easterly along the said north boundary of the
39th townships to the Blindman river; thence along the said
Blindman river down stream to the Red Deer river; thence
along the said Red Deer river down stream to the north boundary
of the 38th township ; thence easterly along the said north
boundary of the 38th townships to the point of commencement.

(15) The electoral division of Ponoka, bounded as follows: —
Commencing at the meridian between the 10th and 11th

ranges, west of the 4th meridian, where it is intersected by
the north boundary of the 41st township; thence northerly
along the said meridian between the 10th and 11th ranges to
the north boundary of the 44th township; thence westerly along
the north boundary of the 44th townships to the North Saskat-
chewan river thence along the said North Saskatchewan river
up stream to the north boundary of the 41st township; thence

ALBERTA act: SCHEDULE. 933

easterly along the said north boundary of the 41st townships
to the point of commencement.

(16) The electoral division of Wetaskiwin, bounded as fol-
lows:—

Commencing at the meridian between the 10th and 11th
ranges, west of the 4th meridian, where it is intersected by the
north boundary of the 44th township; thence northerly along
the said meridian between the 10th and 11th ranges to the
section line which bounds on the north the sections comprising
the most southerly two-thirds of the 47th township; thence
westerly along the said section line which bounds on the north
the sections comprising the most southerly two-thirds of the 47th
townships to the North Saskatchewan river; thence along the
said North Saskatchewan river up stream to the north boundary
of the 44th township; thence easterly along the said north
boundary of the 44th townships to the point of commencement.

(17) The electoral division of Leduc, bounded as follows: —

Commencing at the meridian between the 19th and 20th
ranges, west of the 4th meridian, where it is intersected by
the section line which bounds on the north the sections com-
prising the most southerly two-thirds of the 47th townships;
thence northerly along the said meridian between the 19th and
20th ranges to the north boundary of the 50th township;
thence westerly along the said north boundary of the 50th
townships to where the said north boundary of the 50th townships
first intersects the North Saskatchewan river; thence along
the North Saskatchewan river up stream to the section line
which bounds on the north the sections comprising the most
southerly two-thirds of the 47th township; thence easterly
along the said section line which bounds on the north the sec-
tions comprising the most southerly two-thirds of the 47th
townships to the point of commencement.

(18) The electoral division of Strathcona, bounded as fol-
lows:—

Commencing at the meridian between the 19th and 20th
ranges, west of the 4th meridian, where it is intersected by the
north boundary of the 50th township; thence northerly along
the said meridian between the 19th and 20th ranges to the
north boundary of the 53rd township ; thence westerly along
the said north boundary of the 53rd townships to the North
Saskatchewan river; thence along the said North Saskatchewan
river up stream to the north boundary of the 50th township;
thence easterly along the said north boundary of the 50th
townships to the point of commencement.

934 CANADIAN constitution: appendix a.

(19) The electoral division of Stoney Plain, bounded as
follows: —

Commencing at the meridian between the 24th and 25th
ranges, west of the 4th meridian, where it is intersected by the
north boundary of the 53rd township; thence westerly along
the said north boundary of the 53rd township to the rear line
of lots fronting on the east side of the Sturgeon river in the
Saint Albert Settlement; thence in a southerly and westerly
direction and along the said rear line to Big Lake; thence in
a westerly direction and along the southerly, westerly and
northerly shores of Big Lake to the south-west corner of lot D
in the Saint Albert Settlement; thence westerly and along the
southerly limit of lots E, F, G, H and I in the said Saint Albert
Settlement to the south-east corner of the Indian Reserve Chief
Michel Calahoo; thence westerly along the south boundary of
the said Indian Reserve to the south-west corner thereof;
thence northerly along the west boundary of the said Indian
Reserve to the north boundary of the 54th township; thence
westerly along the said north boundary of the 54th townships
to the 5th meridian; thence northerly along the said 5th meridian
to the south boundary of the Indian Reserve Chief Alexandra;
thence westerly along the south boundary of the Indian Reserve
Chief Alexandra to the south-west corner of the said Reserve ;
thence northerly along the west boundary of the said Reserve
Chief Alexandra to the north boundary of the 55th township;
thence westerly along the north boundary of the 55th town-
ships to the western boundary of the province of Alberta;
thence in a southerly direction and along the said western
boundary of the province of Alberta to the section line which
forms the north boundary of the sections comprising the most
southerly two-thirds of the 37th township; thence easterly
along the said section line which forms the north boundary
of the sections comprising the most southerly two-thirds of
the 37th townships to the North Saskatchewan river; thence
along the said North Saskatchewan river down stream to its
most northerly intersection with the meridian between the 24th
and 25th ranges west of the 4th meridian; thence northerly
along the said meridian between the 24th and 25th ranges to
the point of commencement.

(20) The electoral division of Edmonton City, comprising the
city of Edmonton as incorporated by ordinance of the North-
West Territories.

(21) The electoral division of Victoria, bounded as follows: —
Commencing at the 4th meridian where it is intersected by

the North Saskatchewan river; thence northerly along the

ALBERTA act: SCHEDULE. 935

said 4th meridian to the north boundary of the 70th township;
thence westerly along the said north boundary of the 70th
townships to the meridian between the 10th and 11th ranges
west of the 4th meridian; thence southerly along the said mer-
idian between the 10th and 11th ranges to the north boundary
of the 58th township; thence westerly along the said north
boundary of the 58th townships to the North Saskatchewan
river; thence along the said North Saskatchewan river up stream
to the north boundary of the 53rd township; thence easterly
along the said north boundary of the 53rd township to the mer-
idian between the 19th and 20th ranges, west of the 4th meridian;
thence northerly along the said meridian between the 19th
and 20th ranges to the north boundary of the 54th township;
thence easterly along the said north boundary of the 54th
townships to the meridian between the 10th and 11th ranges,
west of the 4th meridian ; thence northerly along the said
meridian between the 10th and 11th ranges to the North Sas-
katchewan river; thence along the said North Saskatchewan
river down stream to the point of commencement.

(22) The electoral division of Sturgeon, bounded as follows: —
Commencing at the meridian between the 10th and 11th

ranges, west of the 4th meridian, where it is intersected by the
north boundary of the 58th township; thence northerly along
the said meridian between the 10th and 11th ranges to the
north boundary of the 70th township; thence westerly along
the said north boundary of the 70th townships to the meridian
between the 24th and 25th ranges, west of the 4th meridian;
thence southerly along the said meridian between the 24th and
25th ranges to the North Saskatchewan river; thence along
the said North Saskatchewan river down stream to the north
boundary of the 58th township; thence easterly along the said
north boundary of the 58th townships to the point of com-
mencement. Excepting and reserving out of the said electoral
division the city of Edmonton as incorporated by ordinance of
the North-West Territories.

(23) The electoral division of Saint Albert, bounded as
follows: —

Commencing at the meridian between the 24th and 25th
ranges, west of the 4th meridian, where it is intersected by the
north boundary of the 53rd township; thence northerly along
the said meridian between the 24th and 25th ranges west of
the 4th meridian to the north boundary of the 70th township;
thence westerly along the said north boundary of the 70th
townships to the western boundary of the province of Alberta;
thence in a southerly direction and along the said western

936 CANADIAN CONSTITUTION: APPENDIX A.

boundary of the province of Alberta to the north boundary of
the 55th township; thence easterly along the said north bound-
ary of the 55th township to the Indian Reserve Chief Alex-
ander; thence southerly along the western boundary of the
said Indian Reserve Chief Alexander to the south-west corner
of the said reserve; thence easterly along the south boundary
of the said Indian Reserve Chief Alexander to the 5th meridian;
thence southerly along the said 5th meridian to the north
boundary of the 54th township ; thence easterly along the said
north boundary of the 54th township to the west boundary of
the Indian Reserve Chief Michel Calahoo; thence southerly
along the west boundary of the said Indian Reserve Chief
Michel Calahoo to the south-west corner thereof ; thence easterly
along the south boundary of the said Indian Reserve Chief
Michel Calahoo to the south-west corner thereof; thence in an
easterly direction and along the southern limit of lots I, H, G, F
and E, in the Saint Albert Settlement to the south-west corner
of lot D in the said Settlement; thence along the westerly and
southerly shores of Big Lake in a westerly, southerly and easterly
direction to the rear line of lot 55 in the said Saint Albert
Settlement; thence in an easterly direction and along the rear
line of lots fronting on the east side of the Sturgeon river in the
said Saint Albert Settlement to the north boundary of the
53rd township; thence easterly along the north boundary of the
53rd township to the point of commencement.

(24) The electoral division of Peace River, bounded as
follows: —

Commencing at the meridian between the 19th and 20th
ranges, west of the 5th meridian, where it is intersected by the
north boundary of the 70th township; thence northerly along
the said meridian between the 19th and 20th ranges to the
north boundary of the 80th township; thence easterly along
the said north boundary of the 80th townships to the meridian
between the 13th and 14th ranges, west of the 5th meridian;
thence northerly along the said meridian between the 13th and
14th ranges to the north boundary of the 92nd township;
thence easterly along the said north boundary of the 92nd
townships to the meridian between the 20th and 21st ranges,
west of the 4th meridian; thence northerly along the said meri-
dian between the 20th and 21st ranges to the northern boundary
of the province of Alberta; thence westerly along the said
northern boundary of the province of Alberta to the north-west
corner of the said province; thence in a southerly direction
and along the western boundary of the said province of Alberta
to the north boundary of the 70th township; thence easterly

SASKATCHEWAN ACT. 937

along the said north boundary of the 70th townships to the
point of commencement.

(25) The electoral division of Athabasca, bounded as follows:
Commencing at the eastern boundary of the province of
Alberta where it is intersected by the north boundary of the
70th township; thence northerly along the said eastern boundary
of the province of Alberta to the northern boundary of the
said province ; thence westerly along the said northern boundary
of the province of Alberta to the meridian between the 20th
and 21st ranges, west of the 4th meridian; thence southerly
along the said meridian between the 20th and 21st ranges to
the north boundary of the 92nd townships; thence westerly
along the said north boundary of the 92nd townships to the
meridian between the 13th and 14th ranges, west of the 5th
meridian; thence southerly along the said meridian between
the 13th and 14th ranges, west of the 5th meridian to the north
boundary of the 80th township; thence westerly along the said
north boundary of the 80th townships to the meridian between
the 19th and 20th ranges, west of the 5th meridian; thence
southerly along the said meridian between the 19th and 20th
ranges to the north boundary of the 70th township; thence
easterly along the said north boundary of the 70th townships
to the point of commencement.

10. THE SASKATCHEWAN ACT,

4-5 Edw. VII. cap. 42.

An Act to establish and provide for the Government of the

Province of Saskatchewan.

[Assented to July 20th, 1905.}
Whereas in and by The British North America Act, 1871,
being chapter 28 of the Acts of the Parliament of the United
Kingdom passed in the session thereof held in the 34th and
35th year of the reign of her late Majesty Queen Victoria it
is enacted that the Parliament of Canada may from time to
time establish new provinces in any territories forming for
the time being part of the Dominion of Canada, but not in-
cluded in any province thereof, and may at the time of such
establishment make provision for the constitution and admin-
istration of any such province and for the passing of laws for
the peace, order and good government of such province and
for its representation in the said Parliament of Canada;

And whereas it is expedient to establish as a province the
territory hereinafter described and to make provision for the

938 CANADIAN CONSTITUTION: APPENDIX A.

government thereof and the representation thereof in the Par-
liament of Canada;

Therefore his Majesty, by and with the advice and consent of
the Senate and House of Commons of Canada, enacts as follows:

1. This Act may be cited as " The Saskatcheican Act.''

2. The territory comprised within the following boun-
daries, that is to say, — commencing at the intersection of the
international boundary dividing Canada from the United
States of America by the west boundary of the province of
Manitoba, thence northerly along the said west boundary of
the province of Manitoba to the north-west corner of the said
province of Manitoba; thence continuing northerly along the
centre of the road allowance between the twenty-ninth and
thirtieth ranges west of the principal meridian in the system
of Dominion lands surveys, as the said road allowance may
hereafter be defined in accordance with the said system, to
the second meridian in the said system of Dominion lands
surveys as the same may hereafter be defined in accordance
with the said system; thence northerly along the said second
meridian to the sixtieth degree of north latitude; thence west-
erly along the parallel of the sixtieth degree of north latitude
to the fourth meridian in the said system of Dominion lands
surveys as the same may be hereafter defined in accordance
with the said system; thence southerly along the said fourth
meridian to the said international boundary dividing Canada
from the United States of America; thence easterly along the
said international boundary to the point of commencement, —
is hereby established as a province of the Dominion of Canada,
to be called and known as the province of Saskatchewan.

3. The provisions of The British North America Acts 1867
to 1886 shall apply to the province of Saskatchewan in the
same way and to the like extent as they apply to the pro-
vinces heretofore comprised in the DominiJjin, as if the said
province of Saskatchewan had been one of the provinces orig-
inally united, except in so far as varied by this Act and except
such provisions as are in terms made, or by reasonable intend-
ment may be held to be, specially applicable to or only to affect
one or more and not the whole of the said provinces.

4. The said province shall be represented in the Senate of
Canada by four members: Provided that such representation
may, after the completion of the next decennial census, be
from time to time increased to six by the Parliament of Canada.

5. The said province and the province of Alberta shall,
until the termination of the Parliament of Canada existing

SASKATCHEWAN ACT. 939

at the time of the first readjustment hereinafter provided for,
continue to be represented in the House of Commons as pro-
vided by chapter 60 of the Statutes of 1903, each of the electoral
districts defined in that part of the schedule to the said Act
which relates to the North-West Territories, whether such
district is wholly in one of the said provinces, or partly in one
and partly in the other of them, being represented by one
member.

6. Upon the completion of the next quinquennial census
for the said province the representation thereof shall forth-
with be readjusted by the Parliament of Canada in such man-
ner that there shall be assigned to the said province such
a number of members as will bear the same proportion to
the number of its population ascertained at such quinquennial
census as the number sixty-five bears to the number of the
population of Quebec as ascertained at the then last decennial
census ; and in the computation of the number of members
for the said province a fractional part not exceeding one-half
of the whole number requisite for entitling the province to
a member shall be disregarded and a fractional part exceeding
one-half of that number shall be deemed equivalent to the
whole number, and such readjustment shall take effect upon
the termination of the Parliament then existing.

(2) The representation of the said province shall thereafter
be readjusted from time to time according to the provisions
of section 51 of The British North America Act, 1867.

7. Until the Parliament of Canada otherwise provides the
qualifications of voters for the election of members of the
House of Commons and the proceedings at and in connection
with elections of such members shall, mutatis mutandis, be
those prescribed by law at the time this Act comes into force
with respect to such elections in the North-West Territories.

8. The executive council of the said province shall be com-
posed of such persons under such designations as the Lieutenant
Governor from time to time thinks fit.

9. Unless and until the Lieutenant Governor in Council of
the said province otherwise directs by proclamation under the
Great Seal the seat of government of the said province shall
be at Regina.

10. All powers, authorities and functions which under any
law were before the coming into force of this Act vested in or
exercisable by the Lieutenant Governor of the North-West Ter-
ritories with the advice or with the advice and consent of the
executive council thereof or in conju'nction with that council

940 CANADIAN" CONSTITUTION: APPENDIX A.

or with any member or members thereof or by the said Lieu-
tenant Governor individually shall so far as they are capable
of being exercised after the coming into force of this Act in
relation to the government of the said province be vested in
and shall or may be exercised by the Lieutenant Governor of
the said province, with the advice or with the advice and con-
sent of or in conjunction with the executive council of the said
province or any member or members thereof or by the Lieu-
tenant Governor individually as the case requires subject never-
theless to be abolished or altered by the Legislature of the
said province.

11. The Lieutenant Governor in Council shall as soon as may
be after this Act comes into force adopt and provide a Great
Seal of the said province and may from time to time change
such seal.

12. There shall.be a Legislature for the said province con-
sisting of the Lieutenant Governor and one House to be styled
the Legislative Assembly of Saskatchewan.

13. Until the said Legislature otherwise provides the Legis-
lative Assembly shall be composed of twenty-five members to
be elected to represent the electoral divisions defined in the
schedule to this Act.

14. Until the said Legislature otherwise determines all the
provisions of the law with regard to the constitution of the
Legislative Assembly of the North-West Territories and the
election of members thereof shall apply, mutatis mutandis, to
the Legislative Assembly of the said province and the election
of members thereof respectively.

15. The writs for the election of the members of the first
Legislative Assembly of the said province shall be issued by the
Lieutenant Governor and made returnable within six months
after this Act comes into force.

16. All laws and all orders and regulations made thereunder
so far as they are not inconsistent with anything contained
in this Act or as to which this Act contains no provision
intended as a substitute therefor and all courts of civil and
criminal jurisdiction and all commissions, powers, authorities
and functions and all officers and functionaries, judicial, ad-
ministrative and ministerial existing immediately before the
coming into force of this Act in the territory hereby estab-
lished as the province of Saskatchewan shall continue in the
said province as if this Act and The Alberta Act had not been
passed; subject nevertheless, except with respect to such as
are enacted by or existing under Acts of the Parliament of

SASKATCHEWAN ACT. 941

Great Britain or of the Parliament of the United Kingdom of
Great Britain and Ireland, to be repealed, abolished or altered
by the Parliament of Canada or by the Legislature of the said
province according to the authority of the Parliament or of
the said Legislature:

Provided that all powers, authorities and functions which
under any law, order or regulation were before the coming
into force of this Act vested in or exercisable by any public
officer or functionary of the North-West Territories shall be
vested in and exercisable in and for the said province by like
public officers and functionaries of the said province when
appointed by competent authority.

(2) The Legislature of the province may for all purposes
affecting or extending to the said province abolish the supreme
court of the North-West Territories and the offices both judi-
cial and ministerial thereof and the jurisdiction, powers and
authority belonging or incident to the said court:

Provided that if upon such abolition the Legislature con-
stitutes a superior court of criminal jurisdiction the procedure
in criminal matters then obtaining in respect of the supreme
court of the North-West Territories shall until otherwise pro-
vided by competent authority continue to apply to such superior
court and that the Governor in Council may at any time and
from time to time declare all or any part of such procedure
to be inapplicable to such superior court.

(3) All societies or associations incorporated by or under
the authority of the Legislature of the North-West Territories
existing at the time of the coming into force of this Act which
include within their objects the regulation of the practice of
or the right to practice any profession or trade in the North-
west Territories, such as the legal or the medical profession,
dentistry, pharmaceutical chemistry and the like, shall con-
tinue subject however to be dissolved and abolished by order
of the Governor in Council and each of such societies shall
have power to arrange for and effect the payment of its debts
and liabilities and the division, disposition or transfer of its
property.

(4) Every joint stock company lawfully incorporated by or
under the authority of any Ordinance of the North-West Ter-
ritories shall be subject to the legislative authority of the pro-
vince of Saskatchewan if:

(a) The head office or the registered office of such com-
pany is at the time of the coming into force of this
Act situate in the province of Saskatchewan; and

942 CANADIAN CONSTITUTION: APPENDIX A.

(ft) The powers and objects of such company are such as
might be conferred by the Legislature of the said
province and not expressly authorised to be executed
in any part of the North-West Territories beyond
the limits of the said province.

17. Section 93 of The British North America Act, 1867,
shall apply to the said province with the substitution for para-
graph (1) of the said section 93 of the following paragraph:

1. Nothing in any such law shall prejudicially affect any
right or privilege with respect to separate schools which any
class of persons have at the date of the passing of this Act,
under the terms of chapters 29 and 30 of the Ordinances of
the North-West Territories, passed in the year 1901, or with
respect to religious instruction in any public or separate school
as provided for in the said Ordinances.

(2) In the appropriation by the Legislature or distribution
by the government of the province of any moneys for the sup-
port of schools organised and carried on in accordance with
the said chapter 29 or any Act passed in amendment thereof
or in substitution therefor, there shall be no discrimination
against schools of any class described in the said chapter 29.

(3) Where the expression "by law" is employed in para-
graph (3) of the said section 93 it shall be held to mean the
law as set out in the said chapters 29 and 30; and where the
expression " at the union " is employed in the said paragraph
(3) it shall be held to mean the date at which this Act comes
into force.

18. The following amounts shall be allowed as an annual
subsidy to the province of Saskatchewan and shall be paid by
the government of Canada by half-yearly instalments in advance
to the said province, that is to say:

(a) For the support of the government and Legislature,
fifty thousand dollars;

(&) On an estimated population of two hundred and fifty
thousand, at eighty cents per head, two hundred thousand
dollars, subject to be increased as hereinafter mentioned, that
is to say: A census of the said province shall be taken in every
fifth year reckoning from the general census of one thousand
nine hundred and one and an approximate estimate of the
population shall be made at equal intervals of time between
each quinquennial and decennial census; and whenever the
population by such census or estimate exceeds two hundred and
fifty thousand, which shall be the minimum on which the said
allowance shall be calculated, the amount of the said allowance

SASKATCHEWAX ACT. 943

shall be increased accordingly and so on until the population
has reached eight hundred thousand souls.

19. Inasmuch as the said province is not in debt it shall be
entitled to be paid and to receive from the government of
Canada by half-yearly payments in advance an annual sum
of four hundred and five thousand three hundred and seventy-
five dollars, being the equivalent of interest at the rate of five
per cent, per annum on the sum of eight million one hundred
and seven thousand five hundred dollars.

20. Inasmuch as the said province will not have the public
land as a source of revenue, there shall be paid by Canada to
the province by half-yearly payments in advance an annual
sum based upon the population of the province as from time
to time ascertained by the quinquennial census thereof, as
follows:

The population of the said province being assumed to be at
present two hundred and fifty thousand, the sum payable until
such population reaches four hundred thousand shall be three
hundred and seventy-five thousand dollars;

Thereafter, until such population reaches eight hundred
thousand the sum payable shall be five hundred and sixty-two
thousand five hundred dollars ;

Thereafter, until such population reaches one million two
hundred thousand the sum payable shall be seven hundred and
fifty thousand dollars;

And thereafter the sum payable shall be one million one
hundred and twenty-five thousand dollars.

(2) As an additional allowance in lieu of public lands there
shall be paid by Canada to the province annually by half-
yearly payments in advance for five years from the time this
Act comes into force to provide for the construction of neces-
sary public buildings the sum of ninety-three thousand seven
hundred and fifty dollars.

21. All crown lands, mines and minerals and royalties in-
cident thereto and the interest of the crown in the waters
within the province under The North-West Irrigation Act,
1898, shall continue to be vested in the crown and adminis-
tered by the government of Canada for the purposes of Canada
subject to the provisions of any Act of the Parliament of
Canada with respect to road allowances and roads or trails in
force immediately before the coming into force of this Act,
which shall apply to the said province with the substitution
therein of the said province for the North-West Territories.

944 CANADIAN CONSTITUTION: APPENDIX A.

22. All properties and assets of the North-West Territories
shall be divided equally between the said province and the
province of Alberta and the two provinces shall be jointly and
equally responsible for all debts and liabilities of the North-
west Territories:

Provided that if any difference arises as to the division and
adjustment of such properties, assets, debts and liabilities such
difference shall be referred to the arbitrament of three arbi-
trators, one of whom shall be chosen by the Lieutenant Gov-
ernor in Council of each province and the third by the Gover-
nor in Council. The selection of such arbitrators shall not be
made until the Legislatures of the provinces have met and the
arbitrator chosen by Canada shall not be a resident of either
province.

24. The powers hereby granted to the said province shall
be exercised subject to the provisions of section 16 of the con-
tract set forth in the schedule to chapter 1 of the Statutes of
1881, being An Act respecting the Canadian Pacific Railway
Company.

25. This Act shall come into force on the first day of Sep-
tember, one thousand nine hundred and five.

SCHEDULE.
(Section 13.)

The province of Saskatchewan shall be divided into twenty-
five electoral divisions which shall respectively comprise and
consist of the parts and portions of the province hereinafter
described.

In the following descriptions where "meridians between
ranges " and " boundaries of townships " or " boundaries of
sections " are referred to as the boundaries of electoral divi-
sions these expressions mean the meridians, boundaries of
townships or boundaries of sections, as the case may be, in
accordance with the Dominion lands system of surveys and
include the extension thereof in accordance with the said system.

Names and Descriptions of Divisions.
(1) The electoral division of Souris, bounded as follows: —
Commencing at the south-east corner of the said province of
Saskatchewan; thence northerly along the last boundary of the

SASKATCHEWAN ACT: SCHEDULE. 945

said province of Saskatchewan to the north boundary of the
sixth township; thence westerly along the said north boundary
of the sixth townships to the meridian between the tenth and
eleventh ranges west of the second meridian ; thence southerly
along the said meridian between the tenth and eleventh ranges
to the southern boundary of the said province of Saskatchewan;
thence easterly along the said southern boundary of the pro-
vince of Saskatchewan to the point of commencement.

(2) The electoral division of Cannington bounded as
follows: —

Commencing at the intersection of the eastern boundary of
the said province of Saskatchewan by the north boundary of
the sixth township; thence northerly along the said eastern
boundary of the province of Saskatchewan to the north boundary
of the eleventh township; thence westerly along the said north
boundary of the eleventh townships to the meridian between
the tenth and eleventh ranges west of the second meridian;
thence southerly along the said meridian between the tenth and
eleventh ranges to the north boundary of the sixth township;
thence easterly along the said north boundary of the sixth
townships to the point of commencement.

(3) The electoral division of Moosomin, bounded as follows:

Commencing at the intersection of the eastern boundary of
the said province of Saskatchewan by the north boundary of
the eleventh township; thence northerly along the said eastern
boundary of the province of Saskatchewan to the north boun-
dary of the nineteenth township ; thence westerly along the
said north boundary of the nineteenth townships to the second
meridian; thence southerly along the said second meridian to
the north boundary of the eleventh township; thence easterly
along the said north boundary of the eleventh townships to the
point of commencement.

(4) The electoral division of Whitewood, bounded as follows:
Commencing at the second meridian where it is intersected

by the north boundary of the eleventh township; thence
northerly along the said second meridian to the north boundary
of the twentieth township; thence westerly along the said north
boundary of the twentieth townships to the meridian between
the fourth and fifth ranges west of the second meridian; thence
southerly along the said meridian between the fourth and fifth
ranges to the north boundary of the eleventh township ; thence
easterly along the said north boundary of the eleventh town-
ships to the point of commencement.

CAN. CON. — 60

946 CANADIAN CONSTITUTION: APPENDIX A.

(5) The electoral division of Grenfell, bounded as follows:
Commencing at the meridian between the fourth and fifth

ranges west of the second meridian where it is intersected by
the north boundary of the eleventh township; thence northerly
along the said meridian between the fourth and fifth ranges to
the north boundary of the twentieth township; thence westerly
along the said north boundary of the twentieth townships to
the meridian between the sixth and seventh ranges west of the
second meridian; thence northerly along the said meridian
between the sixth and seventh ranges to the north boundary of
the twenty-first township thence westerly along the said north
boundary of the twenty-first township to the meridian between
the seventh and eighth ranges west of the second meridian;
thence northerly along the said meridian between the seventh
and eighth ranges to the north boundary of the twenty-second
township; thence westerly along the said north boundary of
the twenty-second township to the meridian between the eighth
and ninth ranges west of the second meridian ; thence southerly
along the said meridian between the eighth and ninth ranges
to the north boundary of the eleventh township; thence easterly
along the said north boundary of the eleventh townships to the
point of commencement.

(6) The electoral division of Wolseley, bounded as follows:
Commencing at the meridian between the eighth and ninth

ranges west of the second meridian where it is intersected by
the north boundary of the eleventh township; thence northerly
along the said meridian between the eighth and ninth ranges
to the north boundary of the twenty-second township; thence
westerly along the said north boundary of the twenty-second
townships to the meridian between the tenth and eleventh
ranges west of the second meridian; thence southerly along the
said meridian between the tenth and eleventh ranges to the
north boundary of the nineteenth township; thence westerly
along the said north boundary of the nineteenth township to
the meridian between the eleventh and twelfth ranges west of
the second meridian; thence southerly along the said meridian
between the eleventh and twelfth ranges to the north boundary
of the eleventh township ; thence easterly along the said north
boundary of the eleventh townships to the point of commence-
ment.

(7) The electoral division of Saltcoats, bounded as follows:
Commencing at the intersection of the eastern boundary of

the said province of Saskatchewan by the north boundary of
the nineteenth township; thence northerly along the said
eastern boundary of the province of Saskatchewan to the north

SASKATCHEWAN ACT I SCHEDULE. 947

boundary of the thirty-fourth township; thence westerly along
the said north boundary of the thirty-fourth townships to the
meridian between the third and fourth ranges west of the
second meridian; thence southerly along the said meridian
between the third and fourth ranges to the north boundary of
the twentieth township; thence easterly along the said north
boundary of the twentieth townships to the second meridian;
thence southerly along the said second meridian to the north
boundary of the nineteenth township ; thence easterly along
the said north boundary of the nineteenth townships to the
point of commencement.

(8) The electoral division of Yorkton, bounded as follows: —
Commencing at the meridian between the third and fourth

ranges west of the second meridian where it is intersected by
the north boundary of the twentieth township; thence northerly
along the said meridian between the third and fourth ranges
to the north boundary of the thirty-fourth township; thence
westerly along the said north boundary of the thirty-fourth
townships to the meridian between the tenth and eleventh
ranges west of the second meridian; thence southerly along the
said meridian between the tenth and eleventh ranges to the
north boundary of the twenty-second township; thence easterly
along the said north boundary of the twenty-second townships
to the meridian between the seventh and eighth ranges west
of the second meridian; thence southerly along the said
meridian between the seventh and eighth ranges to the north
boundary of the twenty-first township; thence easterly along
the said north boundary of the twenty-first township to the
meridian between the sixth and seventh ranges west of the
second meridian ; thence southerly along the said meridian
between the sixth and seventh ranges to the north boundary of
the twentieth township; thence easterly along the said north
boundary of the twentieth townships to the point of commence-
ment.

(9) The electoral division of South Qu'Appelle, bounded as
follows:

Commencing at the meridian between the tenth and eleventh
ranges west of the second meridian where it is intersected by
the southern boundary of the said province of Saskatchewan;
thence northerly along the said meridian between the tenth and
eleventh ranges to the north boundary of the eleventh township;
thence westerly along the said north boundary of the eleventh
township to the meridian between the eleventh and twelfth
ranges west of the second meridian; thence northerly along
the said meridian between the eleventh and twelfth ranges to

948 CANADIAN CONSTITUTION: APPENDIX A.

the north boundary of the nineteenth township; thence westerly
along the said north boundary of the nineteenth townships to
the meridian between the sixteenth and seventeenth ranges west
of the second meridian; thence southerly along the said meridian
between the sixteenth and seventeenth ranges to the southern
boundary of the said province of Saskatchewan ; thence easterly
along the said southern boundary of the province of Saskatche-
wan to the point of commencement.

(10) The electoral division of North Qu'Appelle, bounded as
follows:

Commencing at the meridian between the tenth and eleventh
ranges west of the second meridian where it is intersected by
the north boundary of the nineteenth township; thence northerly
along the said meridian between the tenth and eleventh ranges
to the north boundary of the thirty-fourth township; thence
westerly along the said north boundary of the thirty-fourth
townships to the meridian between the sixteenth and seventeenth
ranges west of the second meridian; thence southerly along the
said meridian between the sixteenth and seventeenth ranges to
the north boundary of the nineteenth township; thence easterly
along the said north boundary of the nineteenth townships to
the point of commencement.

(11) The electoral division of South Regina, bounded as
follows:

Commencing at the meridian between the sixteenth and
seventeenth ranges west of the second meridian where it is
intersected by the southern boundary of the said province of
Saskatchewan ; thence northerly along the said meridian between
the sixteenth and seventeenth ranges to where it is intersected
by the centre of the track of the main line of the Canadian
Pacific Railway; thence westerly along the said centre of the
track of the main line of the Canadian Pacific Railway to where
it is first intersected by the north boundary of the seventeenth
township; thence westerly along the said north boundary of the
seventeenth townships to the meridian between the twenty-third
and twenty-fourth ranges west of the second meridian; thence
southerly along the said meridian between the twenty-third and
twenty-fourth ranges to the southern boundary of the said pro-
vince of Saskatchewan; thence easterly along the said southern
boundary of the province of Saskatchewan to the point of com-
mencement; excepting and reserving out of the said electoral
division of South Regina all that portion thereof comprised
within the limits of the city of Regina as incorporated by
Ordinance of the North-West Territories.

SASKATCHEWAN ACT: SCHEDULE. 949

(12) The electoral division of Regina City, comprising the
city of Regina as incorporated by Ordinance of the North-West
Territories.

(13) The electoral division of Lumsden, bounded as follows:
CommeKcing at the meridian between the sixteenth and

se\enteenth ranges west of the second meridian where it is
intersected by the centre of the track of the main line of the
Canadian Pacific Railway ; thence northerly along the said
meridian between the sixteenth and seventeenth ranges to the
north boundary of the thirty-fourth township; thence westerly
along the said north boundary of the thirty-fourth townships
to the meridian between the twenty-third and twenty-fourth
ranges west of the second meridian; thence southerly along the
said meridian between the twenty-third and twenty-fourth
ranges to the point where it is first intersected by the east
shore of Last Mountain lake; thence southerly along the said
east shore of the said lake to its intersection with the meridian
between the twenty-third and twenty-fourth ranges in township
twenty-four; thence southerly along the said meridian between
the twenty- third and twenty-fourth ranges to the north boun-
dary of the seventeenth township; thence easterly along the
said north boundary of the seventeenth townships to where it is
first intersected by the centre of the track of the main line of
the Canadian Pacific Railway; thence easterly along the said
centre of the track of the main line of the Canadian Pacific
Railway to the point of commencement.

(14) The electoral division of Moose Jaw, bounded as
follows:

Commencing at the meridian between the twenty-third and
twenty-fourth ranges west of the second meridian where it is
intersected by the southern boundary of the said province of
Saskatchewan ; thence northerly along the said meridian between
the twenty-third and twenty-fourth ranges to the point where
the said meridian intersects the east shore of Last Mountain
lake in township twenty-four; thence northerly along the said
east shore of Last Mountain lake to its intersection with the
northern boundary of township twenty-six ; thence westerly along
the said north boundary of the twenty-sixth townships to the
meridian between the seventh and eighth ranges west of the
third meridian; thence southerly along the said meridian be-
tween the seventh and eighth ranges to the southern boundary
of the said province of Saskatchewan; thence easterly along the
said southern boundary of the province of Saskatchewan to the
point of commencement; excepting and reserving out of the said
electoral division of Moose Jaw all that portion thereof comprised

950 CANADIAN CONSTITUTIOX : APPENDIX A.

within the limits of the city of Moose Jaw as incorporated by
Ordinance of the North-West Territories.

(15) The electoral division of Moose Jaw City, comprising the
city of Moose Jaw as incorporated by Ordinance of the North-
west Territories.

(16) The electoral division of Maple Creek, bounded as
follows:

Commencing at the meridian between the seventh and eighth
ranges west of the third meridian where it is intersected by the
southern boundary of the said province of Saskatchewan; thence
northerly along the said meridian between the seventh and
eighth ranges to the north boundary of the twenty-sixth town-
ship ; thence westerly along the said north boundary of the
twenty-sixth townships to the western boundary of the said
province of Saskatchewan; thence southerly along the said
western boundary of the province of Saskatchewan to the
southern boundary of the said province of Saskatchewan; thence
easterly along the said southern boundary of the province of
Saskatchewan to the point of commencement.

(17) The electoral division of Humboldt, bounded as follows:
Commencing at the intersection of the eastern boundary of

the said province of Saskatchewan by the north boundary of the
thirty-fourth township; thence northerly along the said eastern
boundary of the province of Saskatchewan to the north boundary
of the forty-second township; thence westerly along the said
north boundary of the forty-second townships to the meridian
between the twenty-fourth and twenty-fifth ranges west of the
second meridian; thence southerly along the said meridian
between the twenty-fourth and twenty-fifth ranges to the north
bounda,ry of the thirty-fourth township ; thence easterly along
the said boundary of the thirty-fourth townships to the point of
commencement.

(18) The electoral division of Kinistino, bounded as follows:
Commencing at the intersection of the eastern boundary of

the said province of Saskatchewan by the north boundary of
the forty-second township; thence northerly along the said
eastern boundary of the province of Saskatchewan to the north-
east corner of the said province; thence westerly along the
northern boundary of the said province of Saskatchewan to the
meridian between the twenty-fourth and twenty-fifth ranges
west of the second meridian; thence southerly along the said
meridian between the twenty-fourth and twenty-fifth ranges to
the north limit of the Indian Reserve Chief Muskoday; thence
easterly along the said north limit of the Indian Reserve Chief
Muskoday to the South Saskatchewan river; thence along the

SASKATCHEWAN ACT: SCHEDULE. 951

South Saskatchewan river up stream to the north boundary of
the forty-fifth township; thence easterly along the said north
boundary of the forty-fifth townships to meridian between the
twenty-fourth and twenty-fifth ranges west of the second
meridian ; thence southerly along the said meridian between
the twenty-fourth and twenty-fifth ranges to the north boundary
of the forty-second township; thence easterly along the said
north boundary of the forty-second townships to the point of
commencement.

(19) The electoral division of Prince Albert, bounded as
follows :

Commencing at the meridian between the twenty-fourth and
twenty-fifth ranges west of the second meridian where it is
intersected by the northern boundary of the said province of
Saskatchewan; thence westerly along the said northern boun-
dary of the province of Saskatchewan to the meridian between
the fifth and sixth ranges west of the third meridian; thence
southerly along the said meridian between the fifth and sixth
ranges to the north boundary of the forty-seventh township;
thence easterly along the said north boundary of the forty-
seventh townships to the meridian between the first and second
ranges west of the third meridian; thence southerly along the
said meridian between the first and second ranges to the north
boundary of the forty-sixth township; thence easterly along the
said north boundary of the forty-sixth townships to the third
meridian ; thence southerly along the said third meridian to
the South Saskatchewan river; thence along the said South
Saskatchewan river down stream to the north limit of the
Indian Reserve Chief Muskoday; thence westerly along the said
north limit of the Indian Reserve Chief Muskoday to the
meridian between the twenty-fourth and twenty-fifth ranges
west of the second meridian; thence northerly along the said
meridian between the twenty-fourth and twenty-fifth ranges to
the point of commencement; excepting and reserving out of the
said electoral division all those portions described as follows:

Firstly, the city of Prince Albert, as incorporated by Or-
dinance of the North-West Territories; and

Secondly, those portions of lots 68, 69, 70, 71, 72, 73, 74, 75,
76, 77, 78, 79, 80, 81 and 82 of the Prince Albert Settlement which
lie to the south of the said city of Prince Albert as incorporated
and that portion of the Hudson Bay reserve outside of and
adjoining the said city on the east and south and which lies
to the north of the production in a straight line easterly of the
southern boundary of the said lot 82 in the Prince Albert Settle-
ment; and

952 CANADIAN CONSTITUTION: APPENDIX A.

Thirdly, fractional sections 13 and 24 in the forty-eighth
township in the twenty-sixth range west of the second meridian.

(20) The electoral division of Prince Albert City, compris-
ing:

Firstly, the city of Prince Albert as incorporated by Ordin-
ance of the North-West Territories; and

Secondly, those portions of lots 68, 69, 70, 71, 72, 73, 74, 75,
76, 77, 78, 79, 80, 81 and 82 of the Prince Albert Settlement
which lie to the south of the said city of Prince Albert as in-
corporated and that portion of the Hudson Bay reserve outside
of and adjoining the said city on the east and south and which
lies to the north of the production in a straight line easterly of
the southern boundary of the said lot 82 in the Prince Albert
Settlement; and

Thirdly, fractional sections 13 and 24 in the forty-eighth
township in the twenty-sixth range west of the second meridian.

(21) The electoral division of Batoche, bounded as follows:

Commencing at the meridian between the twenty-third and
twenty-fourth ranges west of the second meridian where it is
intersected by the north boundary of the twenty-sixth township;
thence northerly along the said meridian between the twenty-
third and twenty-fourth ranges to the north boundary of the
thirty-fourth township; thence westerly along the said north
boundary of the thirty-fourth township to the meridian between
the twenty-fourth and twenty-fifth ranges west of the second
meridian; thence northerly along the said meridian between the
twenty-fourth and twenty-fifth ranges to the north boundary of
the forty-fifth township; thence westerly along the said north
boundary of the forty-fifth townships to where it first intersects
the South Saskatchewan river; thence along the said South
Saskatchewan river up stream to the north boundary of the
fortieth township ; thence easterly along the said north boun-
dary at the fortieth townships to the meridian between the first
and second ranges west of the third meridian; thence southerly
along the said meridian between the first and second ranges to
the north boundary of the twenty-sixth township ; thence easterly
along the said north boundary of the twenty-sixth townships to
the point of commencement.

(22) The electoral division of Saskatoon, bounded as follows:
Commencing at the meridian between the first and second

ranges west of the third meridian where it is intersected by
the north boundary of the twenty-sixth township; thence
northerly along the said meridian between the first and second
ranges to the north boundary of the fortieth township; thence

SASKATCHEWAN" ACT! SCHEDULE. 953

westerly along the said north boundary of the fortieth town-
ship to the South Saskatchewan river; thence along the said
South Saskatchewan river down stream to the north boundary-
of the forty-first township; thence westerly along the said
north boundary of the forty-first townships to the North Sas-
katchewan river; thence along the said North Saskatchewan
river up stream to the meridian between the thirteenth and
fourteenth ranges west of the third meridian; thence southerly
along the said meridian between the thirteenth and fourteenth
ranges to the north boundary of the twenty-sixth township;
thence easterly along the said north boundary of the twenty-
sixth townships to the point of commencement.

(23) The electoral division of Rosthern, bounded as follows:

Commencing at the north boundary of the forty-first town-
ship where it is intersected by the South Saskatchewan river;
thence along the said South Saskatchewan river down stream
to the third meridian; thence northerly along the said third
meridian to the north boundary of the forty-sixth township;
thence westerly along the said north boundary of the forty-
sixth township to the meridian between the first and second
ranges west of the third meridian; thence northerly along the
said meridian between the first and second ranges to the north
boundary of the forty-seventh township ; thence westerly along
the said north boundary of the forty-seventh townships to the
meridian between the fifth and sixth ranges west of the third
meridian; thence southerly along the said meridian between
the fifth and sixth ranges to the North Saskatchewan river;
thence along the said North Saskatchewan river up stream to
the north boundary of the forty-first township; thence easterly
along the said north boundary of the forty-first townships to
the point of commencement.

(24) The electoral division of Redberry, bounded as follows:

Commencing at the meridian between the fifth and sixth
ranges west of the third meridian where it is intersected by
the North Saskatchewan river; thence northerly along the said
meridian between the fifth and sixth ranges to the northern
boundary of the said province of Saskatchewan; thence westerly
along the said northern boundary of the province of Saskatche-
wan to the meridian between the thirteenth and fourteenth
ranges west of the third meridian; thence southerly along the
said meridian between the thirteenth and fourteenth ranges to
the North Saskatchewan river; thence along the said North
Saskatchewan river down stream to the point of commencement.

954 CANADIAN constitution: appendix a.

(25) The electoral division of Battleford, bounded as follows:
Commencing at the meridian between the thirteenth and
fourteenth ranges west of the third meridian where it is inter-
sected by the north boundary of the twenty-sixth township;
thence northerly along the said meridian between the thirteenth
and fourteenth ranges, to the northern boundary of the said
province of Saskatchewan; thence westerly along the said
northern boundary of the province of Saskatchewan to the
western boundary of the said province of Saskatchewan; thence
southerly along the said western boundary of the province of
Saskatchewan to the north boundary of the twenty-sixth town-
ship; thence easterly along the said north boundary of the
twenty-sixth townships to the point of commencement.

11. EXTRACTS FROM ORDINANCES OP THE NORTH-WEST

TERRITORIES TOUCHING SEPARATE SCHOOLS.

(1901, cap. 29 and cap. 30.)

Chapter 29.

An Ordinance respecting Schools.

Educational Council.
******

8. There shall be an educational council consisting of five
persons at least, two of whom shall be Roman Catholics to be
appointed by the Lieutenant-Governor in Council; who shall
receive such remuneration as the Lieutenant-Governor in Council
shall determine.

(2) On the first constitution of the council three of the mem-
bers shall be appointed for three years and two for two years;
and thereafter each member appointed shall hold office for two
years. C. O. c. 75, s. 4.

******
Separate Schools.

41. The minority of the ratepayers in any district whether
Protestant or Roman Catholic may establish a separate school
therein ; and in such case the ratepayers establishing such Pro-
testant or Roman Catholic separate school shall be liable only to
assessments of such rates as they impose upon themselves in
respect thereof. C. O. c. 75, s. 36.

42. The petition for the erection of a separate school district
shall be signed by three resident ratepayers of the religious faith
indicated in the name of the proposed district; and shall be in
the form prescribed by the commissioner. C. O. c. 75, s. 37.

NORTH-WEST TERRITORIES: SEPARATE SCHOOLS. 955

43. The persons qualified to vote for or against the erection
of a separate school district shall be the ratepayers in the district
of the same religious faith, Protestant or Roman Catholic, as the
petitioners. C. O. c. 75, s. 38.

44. The notice calling a meeting of the ratepayers for the
purpose of taking their votes on the petition for the erection of a
separate school district shall be in the form prescribed by the
commissioner and the proceedings subsequent to the posting of
such notice shall be the same as prescribed in the formation of
public school districts. C. 0. c. 75, s. 39.

45. After the establishment of a separate school district under
the provisions of this Ordinance such separate school district and
the board thereof shall possess and exercise all rights, powers,
privileges and be subject to the same liabilities and method of
government as is herein provided in respect of public school
districts.

(2) Any person who is legally assessed or assessable for a
public school shall not be liable to assessment for any separate
school established therein. C. O. c. 75, s. 40.

* * * * * *

Union of Public and Separate School Districts.

52. If in any area there exist a public school district and a
separate school district and it is resolved by the latepayers of
each of such school districts at a public meeting of such rate-
payers respectively called for the purpose of considering the
question that it is expedient that such districts should be
disorganised for the purpose of the union of the same and the
erection of such area into a public school district, the commis-
sioner may by order, notice of which shall be published in the
official gazette, disorganise such existing districts and erect such
area into a public • school district with such name as he may
decide upon; and thereafter the commissioner may make such
orders, provisions and appointments as to him shall appear
proper for the carrying into effect of such disorganisation and
the erection of the public school district and as to all matters
incident thereto and necessary for the establishment and opera-
tion of the same as a public school district and for the carrying
out therein of all the provisions of this Ordinance and for the
adjustment, arrangement and winding up of all the affairs of
such disorganised districts and for the settlement of their lia-
bilities and disposition of their assets.

Provided that unless the liabilities of such disorganised
districts are not otherwise liquidated, tl^ same shall be assumed
by and imposed upon such newly created district and any de-
bentures issued by the disorganised districts or either of them

956 CANADIAN CONSTITUTION: APPENDIX A.

shall have force and effect upon the newly established district
and the property and rates thereof as they had upon the district
by which they were respectively issued and its property and
rates; and the trustees of such newly organised district may
authorise and direct the levy and collection of such rate or rates
as may from time to time be necessary for the discharging of
any liability or debenture indebtedness of a disorganised district
assumed by or imposed upon such new district. C. O. c. 75,
s. 54.

******

Religious Instruction.

137. No religious instruction, except as hereinafter provided,
shall be permitted in the school of any district from the opening
of such school until one-half hour previous to its closing in the
afternoon, after which time any such instruction permitted or
desired by the board may be given.

(2) It shall, however, be permissible for the board of any dis-
trict to direct that the school be opened by the recitation of the
Lord's prayer. C. O. c. 75, s. 110.

138. Any child shall have the privilege of leaving the school
room at the time at which religious instruction is commenced as
provided for in the next preceding section or of remaining with-
out taking part in any religious instruction that may be given,
if the parents or guardians so desire. C. O. c. 75, s. 111.

139. No teacher, school trustee or inspector shall in any way
attempt to deprive such child of any advantage that it might
derive from the ordinary education given in such school and any
such action on the part of any school trustee, inspector or teacher
shall be held to be a disqualification for and voidance of the
office held by him. C. O. c. 75, s. 112.

****♦♦

Chapter 30.
" The School Assessment Ordinance."

******
Assessment in Rural Districts.
3. The assessment in any village or rural district may be
made by the board or any person appointed by it as assessor for
the district.

(2) Any member of the board may be appointed assessor.

(3) The expression "assessor" in any part of this Ordinance
relating to village or rural districts shall mean the board or the
assessor accordingly as the assessment is made by the board or
an assessor.

******

NORTH-WEST TERRITORIES I SEPARATE SCHOOLS. 957

8. In cases where separate school districts have been estab-
lished whenever land is held by two or more persons as joint
tenants or tenants in common the holders of such property being
Protestants and Roman Catholics, they shall be assessed in pro-
portion to their interest in the land in the district to which
they respectively are ratepayers. C. O. c. 75, s. 127.

9. A company may by notice in that behalf to be given to the
secretary of the board of any district in which a separate school
has been established and to the secretary of the board of such
separate school district, require any part of the land of which
such company is the owner to be entered, rated and assessed for
the purposes of said separate school and the proper assessor
shall thereupon enter said company as a separate school rate-
payer in the assessment roll in respect of the land specially
designated in that behalf in or by said notice, and so much of
the land as shall be so designated shall be assessed accordingly
in the name of the company for the purposes of the separate
school and not for public school purposes, but all other land of
the company shall be separately entered and assessed in the
name of the company as for public school purposes:

Provided always that the share or portion of the land of any
company entered, rated or assessed in any district for separate
school purposes under the provisions of this section shall bear
the same ratio and proportion to the whole land of the company
assessable within the district as the amount or proportion of the
shares or stock of the company so far as the same are paid or
partly paid up, held and possessed by persons who are Pro-
testants or Roman Catholics, as the case may be, bears to the
whole amount of such paid or partly paid-up shares or stock of
the company.

(2) Any such notice given in pursuance of a resolution in
that behalf of the directors of the company shall for all purposes
be deemed to be sufficient and every such notice so given shall
be taken as continuing and in force and to be acted upon unless
and until the same is withdrawn, varied or cancelled by any
notice subsequently given pursuant to any resolution of the com-
pany or of its directors.

(3) Every such notice so given to such secretary shall remain
with and be kept by him on file in his office and shall at all con-
venient hours be open to inspection and examination by any
person entitled to examine or inspect the assessment roll each
year.

(4) False statements made in any such notice shall not re-
lieve the company from rates, but any company fraudulently
giving such notice or making false statements therein shall be

958 CANADIAN CONSTITUTION: APPENDIX A.

liable to a penalty not exceeding $100 and any person giving for
a company such a statement fraudulently or wilfully inserting
in any such notice a false statement shall be guilty of an offence
and liable on summary conviction to the like penalty. C. O.
c. 75, s. 128.

* * * * * Hf

Village and Town Districts.

* « * * * 4:

92. In cases where separate school districts have been estab-
lished whenever property is held by two or more persons as joint
tenants or tenants in common, the holders of such property being
Protestants and Roman Catholics, they shall be assessed in pro-
portion to their interest in the property in the district to which
they respectively are ratepayers. C. O. c. 75, s. 127.

93. A company may by notice in that behalf to be given to
the secretary-treasurer of any municipality wherein a separate
school district is either wholly or in part situafed and to the
secretary of the board of any public school district in which a
separate school has been established and to the secretary of the
board of such separate school district, require any part of the real
property of which such company is either the owner and occupant
or not being such owner is the tenant or occupant or in actual
possession of and any part of the personal property if any of such
company liable to assessment to be entered, rated and assessed
for the purposes of said separate school, and the proper assessor
shall thereupon enter said company as a separate school sup-
porter in the assessment roll in respect of the property specially
designated in that behalf in or by said notice and so much of the
property as shall be so designated shall be assessed accordingly
in the name of the company for the purposes of the separate
school and not for public school purposes, but all other property
of the company shall be separately entered and assessed in the
name of the company as for public school purposes:

Provided always that the share or portion of the property of
any company entered, rated or assessed in any municipality or
in any school district for separate school purposes under the
provisions of this section shall bear the same ratio and propor-
tion to the whole property of the company assessable within the
municipality or school district as the amount or proportion of the
shares or stock of the company so far as the same are paid or
partly paid up, held and possessed by persons who are Protest-
ants or Roman Catholics, as the case may be, bears to the whole
amount of such paid or partly paid-up shares or stock of the
company.

NORTH-WEST TERRITORIES*. SEPARATE SCHOOLS. 959

(2) Any such notice given in pursuance of a resolution in that
behalf of the directors of the company shall for all purposes be
deemed to be sufficient and every such notice so given shall be
taken as continuing and in force and to be acted upon unless and
until the same is withdrawn, varied or cancelled by any notice
subsequently given pursuant to any resolution of the company or
of its directors.

(3) Every such notice so given to such secretary-treasurer
shall remain with and be kept by him on file in his office and
shall at all convenient hours be open to inspection and examina-
tion by any person entitled to examine or inspect the assessment
roll and the assessor shall in each year before the completion and
return of the assessment roll search for and examine all notices
which may be on file in the clerk's office and shall thereupon in
respect of said notices if any follow and conform thereto and to
the provisions of this Ordinance in that behalf.

(4) False statements made in any such notice shall not re-
lieve the company from rates. Any company fraudulently giving
such notice or making false statements therein shall be liable to
a penalty not exceeding $100. Any person giving for a company
such a statement fraudulently or wilfully inserting in any such
notice a false statement shall be guilty of an offence and liable
on summary conviction to a like penalty. C. O. c. 75, s. 128.

Miscellaneous.
94. In cases where separate school districts have been estab-
lished where land is owned by a Protestant and occupied by a
Roman Catholic or vice versa, such land shall be assessed to the
owner. C. O. c. 75, s. 126.

12. LETTERS-PATENT.

(Passed under the Great Seal of the United Kingdom.)

Constituting the Office of Governor-General of the Dominion

OF Canada.
Letters-Patent, ^

Dated 5th October, 1818. j
Victoria, 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: .
Whereas We did, by certain Letters-Patent under the Great
Seal of Our United Kingdom of Great Britain and Ireland, bear-
ing date at Westminster the Twenty-second day of May, 1872,
in the Thirty-fifth Year of Our Reign, constitute and appoint

960 CANADIAN CONSTITUTION: APPENDIX A.

Our Right Trusty and Right Well-beloved Cousin and Councillor,
Frederick Temple, Earl of Dufferin, Knight of Our Most Illus-
trious Order of Saint Patrick, Knight Commander 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 per-
manent provision for the office of Governor-General in and over
Our said 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-second day of May, 1872, and every clause,
article and thing therein contained:

And further know ye that We, of our special grace, certain
knowledge, and mere motion, have thought fit to constitute, order,
and declare, and do by these presents constitute, order, and
declare 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 that the
person who shall 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, 1867," and of these present
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.

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

IvETTERS patent: OFFICE OF GOVERNOR-GENERAL. 961

on Our behalf, all such Judges, Commissioners, Justices of the
Peace, and other necessary OflGicers and Ministers of Our said
Dominion, as may be lawfully constituted or appointed by Us.

IV. And We do further authorize and empower Our said
Governor-General, so far as we lawfully may, upon sufficient
cause to him appearing, to remove from his office, or to suspend
from the exercise of the same, any person exercising any office
within Our 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 Dominion.

VI. And whereas by " The British North America Act, 1867,"
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 empower Our said Governor-General, subject to
such limitations and directions 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 necessary 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 func-
tion 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

CAN. CON. — 61

962 CANADIAN CONSTITUTION: APPENDIX A.

by Us under pur 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 regu-
lar troops in our said Dominion: Provided 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
accompanying 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 Governor-General shall think fit within Our
said Dominion of Canada.

In Witness whereof We have caused these our Letters to be
made Patent. Witness Ourselves at Westminster, the Fifth day
of October, in the Forty-second Year of Our Reign.

By Warrant under the Queen's Sign-Manual.

C. ROMILLY.

13. DRAFT OF INSTRUCTIONS.
Passed under the Royal Sign-Manual and Signet to the Governor-
General of the Dominion of Canada.

Dated 5th October, 1878.
VWTORIA R.

Instructions to Our Governor-General in and over Our Dominion
of Canada, or, in his absence, to Our Lieutenant-Governor
or the Officer for the time being administering the Govern-
ment of Our said Dominion.

:. Given at our Court at Balmoral, this Fifth day of October,

1878, in the Forty-second year of Our Reign.

INSTEUCTIONS TO GOVERNOB-OENERAI,. 963

Whereas by certain Letters-Patent bearing even date here-
with. We have constituted, ordered, and declared that there
shall be a Governor-General (hereinafter called Our said Gov-
ernor-General) in and over Our Dominion, of Canada (herein-
after called Our said Dominion), and We have thereby auth-
orized and commanded 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, accord-
ing to the several powers and authorities granted or appointed
him by virtue of the said Letters-Patent, and of such Commis-
sion 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
Order in Our Privy Council, or by Us through One of Our Prin-
cipal 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 presence 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:

And We do further declare Our pleasure to be that Our said
Governor-General, and every other Officer appointed to admin-
ister the Government of Our said Dominion, shall take 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 Reign, 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 him in that behalf, to administer to all 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

964 CANADIAN CONSTITUTION: APPENDIX A.

said 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 com-
municate forthwith to the Privy Council for Our said Dominion
these Our Instructions, and likewise all such others from time
to time as he shall find convenient for Our service to be im-
parted 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 such
cases as may seem to him necessary, with such explanatory
observations as may be required to exhibit the reasons and occa-
sions for proposing such Laws; and he shall also transmit fair
copies of the Journals and Minutes of the proceedings 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, which may
become due and payable 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 remission 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 affect the interests of Our Empire,
or of any country or place beyond the jurisdiction of the Gov-
ernment of Our said Dominion, Our said Governor-General shall,

QUEBEC RESOIyUTIONS. ' 965

before deciding as to either pardon or reprieve, take those
interests specially into his own personal consideration in con-
junction 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 under Our Sign-Manual and Signet,
or through one of Our Principal Secretaries of State.

V. R.

14. 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 circum-
stances to protect the diversified interests in the several Pro-
vinces, 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 Pro-
vinces of Nova Scotia, New Brunswick, and Prince Edward
Island, charged with the control of local matters in their respec-
tive 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 Conference, with a view to the perpetuation of our connec-
tion 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 Ire-
land, and be administered according to the well-understood prin-
ciples of the British constitution, by the Sovereign personally,
or by the representative of the Sovereign duly authorized.

5. The Sovereign or Representative of the Sovereign shall be
Commander 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.

966 CANADIAN CONSTITUTION: APPENDIX A.

7. For the purpose of forming the Legislative Council, the
federated Provinces shall be considered as consisting of three
divisions: 1st, Upper Canada, 2nd, Lower Canada, 3rd, Nova
Scotia, New Brunswick, and Prince Edward Island; each divi-
sion with an equal representation in the Legislative Council.

8. Upper Canada shall be represented in the Legislative Coun-
cil 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
proposed union, with a representation in the Legislative Council
of 4 members.

10. The North-West Territory, British Columbia and Van-
couver shall be admitted into the union on such terms and con-
ditions 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 oflBce 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 sufllcient number be found qualified and willing to serve;
such members shall be appointed by the Crown at the recom-
mendation of the general executive Government, upon the nom-
ination of the respective local Governments, and in such nomina-
tion due regard shall be had to the claims of the members of the
Legislative Council of the opposition in each Province, so that

QUEBEC RESOLUTIONS. 967

all political parties may as nearly as possible be fairly repre-
sented.

15. The Speaker of the Legislative Council (unless other-
wise provided by Parliament) shall be appointed by the Crown
from among the members of the Legislative Council, and shall
hold office during pleasure, and shall only be entitled to a cast-
ing vote on an equality of votes.

16. Each of the twenty-four Legislative Councillors repre-
senting Lower Canada in the Legislative Council of the general
Legislature, shall be appointed to represent one of the twenty-
four electoral divisions mentioned in Schedule A of chapter
first of the Consolidated Statutes of Canada, and such Coun-
cillor 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 65

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 immediately 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 succeeding, the number of members to which
it will be entitled on the same ratio or representation to popu-
lation as Lower Canada will enjoy according 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 de-
creased, 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

968 CANADIAN CONSTITUTION: APPENDIX A.

shall be considered, unless when exceeding one-half the number
entitling to a member, in which case a member shall be given
for each such fractional part.

2S. 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 purposes of represen-
tation in such local Legislature, and distribute the representa-
tives to which the Province is entitled in such local Legislature,
in any manner such Legislature may see fit.

25. The number of members may at any time be increased
by the general Parliament, — regard being had to the proportion-
ate rights then existing.

26. 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 Provinces respectively, relating
to the qualification and disqualification 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 dur-
ing which such elections may be continued, — and relating to the
trial of controverted elections, and the proceedings incident
thereto, — and relating to the vacating of seats of members, and
to the issuing and execution of new writs, in case of any seat
being vacated otherwise than by a dissolution, — shall respec-
tively apply to elections of members to serve in the House of
Commons, for places situate in those Provinces respectively.

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 dis-
solved 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 intervene between the last sitting of the general Par-
liament in one session, 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.

QUEBEC RESOIyUTIOi^S. 969

(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 extending beyond the limits
of any Province.

(9) 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 Province, be specially declared by the Acts
authorizing them to be for the general advantage.

(12) The census.

(13) 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) Saving 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 discovery.

(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 proce-
dure in criminal matters.

970 CANADIAN CONSTITUTION: APPENDIX A.

(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 proce-
dure of all or any of the courts in these Provinces;
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.

(37) And generally respecting all matters of a general

character, 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 Provinces, as part of the 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 execu-
tion 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 exer-
cise of its rights and powers, 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
Brunswick, 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 shall 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.

QUEBEC RESOLUTIONS. 971

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 Lieu-
tenant-Governor immediately after the exercise of the pleasure
as aforesaid, and also by message to both Houses of Parliament,
within the first week of the first session afterwards.

39. The Lieutenant-Governor of each Province shall be paid
by the general Government.

40. In undertaking 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.

41. 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 imposi-

tion 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

appointment 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 belonging to the general Government.

(8) Sea-coast and inland fisheries.

(9) The establishment, maintenance and management of

penitentiaries, and of public and reformatory
prisons.

972 CANADIAN CONSTITUTION: APPENDIX A.

. (10) The establishment, maintenance and management of
hospitals, asylums, charities and eleemosynary in-
stitutions.

(11) Municipal institutions.

(12) Shop, saloon, tavern, auctioneer and other licenses.

(13) Local works.

(14) The incorporation of private or local companies, ex-

cept such as relate to matters assigned to the gen-
eral Parliament.

(15) Property and civil rights, excepting those portions

thereof assigned to the general Parliament.

(16) Inflicting punishment by fine, penalties, imprisonment

or otherwise, for the breach of laws passed in rela-
tion to any subject within their jurisdiction.

(17) The administration of justice, including the consti-

tution, maintenance and organization of the courts
— ^both of civil and criminal jurisdiction, and includ-
ing also the 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 respiting, reprieving, and pardoning pris-
oners convicted 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 instructions he may,
from time to time, receive from the general Government, and
subject to any provisions that may be made in this behalf by
the general Parliament.

MISCELLANEOUS.

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
Governments 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 Commons or House of Assembly, as the case may be.

QUEBEC RESOI.UTIONS. 973

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 Lieutenant-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 con-
sideration of the Governor-General.

51. Any bill passed by the general Parliament shall be sub-
ject to disallowance 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, any bill passed by a local Legis-
lature 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 Gov-
ernments, 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.

PROPERTY AND LIABILITIES.

54. All stocks, cash, bankers' balances and securities for
money belonging 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 Pro-
vince shall belong to the general Government, to wit: —

(1) Canals.

(2) Public harbors.

(3) Light houses and piers.

(4) Steamboats, dredges and public vessels.

(5) River and lake improvements.

(6) 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 Gov-
ernment for the use of the local Legislatures and
Governments.

974 CANADIAN CONSTITUTION: APPENDIX A.

(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.

57. 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 Governments.

58. All assets connected with such portions of the public
debt of any Province as are assumed by the local Governments
shall also belong to those Governments respectively.

59. The several Provinces shall retain all other public pro-
perty therein, subject to the right of the general Government
to as^me 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 the
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 exceeding $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 in-
curred, in like manner as is hereinafter provided for Newfound-
land and Prince Edward Island ; the foregoing resolution being
in no respect intended to limit the powers given to the respec-
tive Governments of those Provinces, by Legislative 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.

63. Newfoundland and Prince Edward Island, not having in-
curred debts equal to those of the other Provinces, shall be en-
titled to receive, by half-yearly payments, in advance, from the

QUEBEC RESOLUTIONS, 975

general Government, the interest at five per cent, on the differ-
ence 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 Bruns-
wick.

64. In consideration of the transfer to the general Parlia-
ment 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, as 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 locat purposes, and shall be paid half-yearly in
advance to each Province.

65. The position of New Brunswick being such as to entail
large immediate 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 allowance of $63,000 per annum shall
be made to that Province. But that so long as the liability of
that Province remains under $7,000,000, a deduction equal to
the interest of such deficiency shall be made from the $63,000.

66. In consideration of the surrender to the general Gov-
ernment, by Newfoundland, of all its rights in mines and min-
erals, and of all the ungranted 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 payments; provided that
that colony shall retain the right of opening, constructing and
controlling roads and bridges through any of the said lands,
subject to any laws which the general Parliament may pass in
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 by the general Government.

68. The general Government shall secure, without delay, the
completion 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 with the seaboard, are regarded by this con-
ference as subjects of the highest importance 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.

976 CANADIAN constitution: appendix b.

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 dele-
gation 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.

B. IMPORTANT IMPERIAL STATUTES EXTEND-
ING TO CANADA.-

1. COLONIAL LAWS VALIDITY ACT, 1865.

28-29 Vic, Cap. 63, (Imp.).

An Act to remove DouMs as to the Validity of Colonial Laws.

[June 29th, 1865.]

Whereas doubts have been entertained respecting the validity
of divers laws enacted, or purporting to be enacted by the Legis-
latures 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: —

1. The term " colony " shall in this Act include all of Her
Majesty's Possessions abroad, in which there shall exist a legis-
lature as hereinafter defined, except the Channel Islands, the
Isle of Man, and such territories as may for the time being be
vested in Her Majesty, under or by virtue of any Act of Par-
liament for the government of India;

The terms " Legislature " and " Colonial Legislature " shall
severally signify the authority (other than the Imperial Par-
liament of Her Majesty in Council), competent to make laws
for any colony;

The term "Representative Legislature" shall signify any
Colonial Legislature which shall comprise a legislative body of
which one-half are elected by inhabitants of the colony;

The term " Colonial Law " shall include laws made for any
colony, either by such Legislature as aforesaid or by Her Ma-
jesty in Council;

An Act of Parliament, or any provision thereof, shall, in
construing this Act, be said to extend to any colony when it is

COLONIAL LAWS VALIDITY ACT^ 1865. 977

made applicable to such colony by the express words or neces-
sary intendment of any Act of Parliament;

The term " Governor " shall mean the officer lawfully ad-
ministering the Government of any colony;

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

2. Any colonial law, which is or shall be repugnant to the
provisions of any Act of Parliament extending to the colony to
which such law may relate, or repugnant to any order or regu-
lation made under authority of such Act of Parliament, or
having in the colony the force or effect of such Act, shall be
read subject to such Act, order, or regulation, and shall, to the
extent of such repugnancy, but not otherwise, be and remain
absolutely void and inoperative.

3. No colonial law shall be, or be deemed to have been, void
or inoperative on the ground of repugnancy to the law of Eng-
land, unless the same shall be repugnant to the provisions of
some such Act of Parliament, order, or regulation, as aforesaid.

4. No colonial law, passed with the concurrence of or as-
sented to by the Governor of any colony, or to be hereafter so
passed or assented to, shall be, or be deemed to have been, void
or inoperative by reason only of any instructions with reference
to such law, or the subject thereof, which may have been given
to such Governor, by or on behalf of Her Majesty, by any in-
strument 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 instructions may be referred to in such
letters patent, or last-mentioned instrument.

5. Every colonial Legislature shall have, and be deemed at
all times to have had, full power within its jurisdiction to estab-
lish courts of judicature, and to abolish and re-constitute the
same, and to alter the constitution thereof, and to make pro-
vision for the administration of justice therein; and every
representative Legislature shall, in respect to the colony under
its jurisdiction, have, and be deemed at all times to have had,
full power to make laws respecting the constitution, powers, and
procedure of such Legislature; provided that such laws shall
have been passed in such manner and form as may from time
to time be required, by any Act of Parliament, letters patent.
Order in Council, or colonial law for the time being in force in
the colony.

6. The certificate of the clerk or other proper officer of a
legislative body in any colony to the effect that the document

CAN. CON. — 62

978 CANADIAN CONSTITUTION: APPENDIX B.

to which it is attached is a true copy of any colonial law as-
sented to by the Governor of such colony, or of any bill reserved
for the signification of Her Majesty's pleasure by the said Gov-
ernor, shall be prima facie evidence that the document so certi-
fied 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 pre-
sented to the Governor; and any proclamation, purporting to be
published by authority of the Governor, in any newspaper in the
colony to which such law or bill shall relate, and signifying
Her Majesty's disallowance of 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 validity
of certain Acts enacted, or reputed to be enacted, by the Legis-
lature of South Australia: Be it further enacted as follows:

7. All laws or reputed laws, enacted or purporting to have
been enacted by the said Legislature, or by persons or bodies of
persons for the time being acting as such Legislature, which
have received the assent of Her Majesty in Council, or which
have received the assent of the Governor of the said Colony in
the name and on behalf of Her Majesty, shall be and be deemed
to have been valid and effectual from the date of such assent for
all purposes whatever; provided that nothing herein contained
shall be deemed to give effect to any law or reputed law which
has been disallowed by Her Majesty, or has expired, or has been
lawfully repealed, or to prevent the lawful disallowance or
repeal of any law.

2. COLONIAL COURTS (ADMIRALTY JURISDICTION), 1849.

12-13 Vict. cap. 96 (Imp.).
An Act to provide for the Prosecution and Trial in Her Majesty's

Colonies of Offences committed within the Jurisdiction of the

Admiralty.

[1st August, 1849.^
" Whereas by an Act passed in the Eleventh Year of the
Reign of King William the Third, intitutled An Act for the more
effectual Suppression of Piracy, it is enacted, that all Piracies
Felonies, and Robberies committed on the Sea, or in any Ha-
ven, River, Creek, or Place where the Admiral or Ad-
mirals have Power, Authority, or Jurisdiction, may be
examined, inquired of, tried, heard, and determined, and ad-
judged, in any Place at Sea or upon the Land in any of His
Majesty's Islands, Plantations, Colonies, Dominions, Forts, or

COLOXIAI, COURTS (ADMIRALTY JURISDICTION). 979

Factories, to be appointed for that Purpose by the King's Com-
mission, in the Manner therein directed, and according to the
Civil Law and the Methods and Rules of the Admiralty: And
whereas by an Act passed in the Forty-sixth Year of the Reign
of King George the Third, intituled An Act for the speedy Trial
of Offences committed in distant Parts upon the Sea, it is enacted,
that all Treasons, Piracies, Felonies, Robberies, Murders, Con-
spiracies, and other Offences, of what Nature of Kind soever,
committed upon the Sea, or in any Haven, River, Creek, or Place
where the Admiral or Admirals have Power, Authority, or Juris-
diction, may be inquired of, tried, heard, determined, and ad-
judged, according to the common Course of the Laws of this
Realm used for Offences committed upon the Land within this
Realm, and not otherwise, in any of His Majesty's Islands,
Plantations, Colonies, Dominions, Forts, or Factories under and
by virtue of the King's Commission or Commissions under the
Great Seal of Great Britain, to be directed to Commissioners in
the Manner and with the Powers and Authorities therein pro-
vided: And whereas it is expedient to make further and better
Provision for the Apprehension, Custody, and Trial in Her
Majesty's Islands, Plantations, Colonies, Dominions, Forts, and
Factories of Persons charged with the Commission of such
Offences on the Sea, or in any such Haven, River, Creek, or
Place as aforesaid:" Be it therefore enacted by the Queen's most
Excellent Majesty, by and with the Advice and Consent of the
Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the Authority of the same. That
if any Person within any Colony shall be charged with the
Commission of any Treason, Piracy, Felony, Robbery, Murder,
Conspiracy, or other Offence, of what Nature or Kind soever,
committed upon the Sea, or in any Haven, River, Creek, or
Place where the Admiral or Admirals have Power, Authority,
or Jurisdiction, or if any Person charged with the Commission
of any such Offence upon the Sea, or in any such Haven, River,
Creek, or Place, shall be brought for Trial to any Colony, then
and in every such Case all Magistrates, Justices of the Peace,
public Prosecutors, Juries, Judges, Courts, public Officers, and
other Persons in such Colony shall have and exercise the same
Jurisdiction and Authorities for inquiring of, trying, hearing,
determining, and adjudging such Offences, and they are hereby
respectively authorized, empowered, and required to institute and
carry on all such Proceedings for the bringing of such Person
so charged as aforesaid to Trial, and for and auxiliary to and
consequent upon the Trial of any such Person for any such
Offence wherewith he may be charged as aforesaid, as by the
Law of such Colony would and ought to have been had and

980 CANADIAN CONSTITUTION: APPENDIX B.

exercised or instituted and carried on by them respectively if
such Offence had been committed, and such Person had been
charged with having committed the same, upon any Waters situ-
ate within the Limits of any such Colony, and within the Limits
of the local Jurisdiction of the Courts of Criminal Justice of
such Colony.

IL Provided always, and be it enacted, That if any Person
shall be convicted before any such Court of any such Offence,
such Person so convicted shall be subject and liable to and shall
suffer all such and the same Pains, Penalties, and Forfeitures
as by any Law or Laws now in force Persons convicted of the
same respectively would be subject and liable to in case such
Offence had been committed, and were inquired of, tried, heard,
determined, and adjudged, in England, any Law, Statute, or
Usage to the contrary notwithstanding.

III. And be it enacted, That where any Person shall die in
any Colony of any Stroke, Poisoning, or Hurt, such Person
having been feloniously stricken, poisoned, or hurt upon the
Sea, or in any Haven, River, Creek, or Place where fhe Admiral
or Admirals have Power, Authority, or Jurisdiction, or at any
Place out of such Colony, every Offence committed in respect
of any such Case, whether the same shall amount to the Offence
of Murder or of Manslaughter, or of being Accessory before the
Fact to Murder, or after the Fact to Murder or Manslaughter,
may be dealt with, inquired of, tried, determined, and punished
in such Colony in the same Manner in all respects as if such
Offence had been wholly committed in that Colony; and that if
any Person in any Colony shall be charged with any such Offence
as aforesaid in respect of the Death of any Person who having
been feloniously stricken, poisoned, or otherwise hurt, shall have
died of such Stroke, Poisoning, or Hurt upon the Sea, or in any
Haven, River, Creek, or Place where the Admiral or Admirals
have Power, Authority, or Jurisdiction, such Offence shall be
held for the Purpose of this Act to have been wholly committed
upon the Sea.

IV. Provided also, and be it enacted. That nothing in this
Act contained shall in any way affect or abridge the Jurisdic-
tion of the Supreme Courts of New South Wales and Van Die-
men's Land, as established by an Act passed in the Ninth Year
of the Reign of King George the Fourth, intituled An Act to
provide for the Administration of Justice in New South Wales
and Van Diemen's Land, and for the more effectual Government
thereof, and for other Purposes relating thereto.

V. And be it enacted. That for the Purposes of this Act the
Word '* Colony " shall mean any Island, Plantation, Colony,

TERRITORIAL WATERS JURISDICTION ACT. 981

Dominion, Fort, or Factory of Her Majesty, except any Island
within the United Kingdom, and the Islands of Man, Guernsey
Jersey, Alderney, and Sark, and the Islands adjacent thereto
respectively, and except also all such Parts and Places as are
under the Government of the East India Company; and the
Word " Governor " shall mean the Officer for the Time being
administering the Government of any Colony.

VI. And be it enacted. That this Act may be amended or
repealed by any Act to be passed during this present Session
of Parliament.

3. TERRITORIAL WATERS JURISDICTION ACT, 1878.
41-42 Vict. cap. 73 (Imp.).
Abstract of the Enactments.

1. Short title.

2. Amendment of the law as to the jurisdiction of the Admiral.

3. Restriction on institution of proceedings for 'punishment

of offence.

4. Provisions as to procedure.

5. Saving as to jurisdiction.

6. Saving as to piracy.

7. Definitions. "Jurisdiction of the Admiral:" "United

Kingdom : " " Territorial waters of Her Majesty's do-
minions: " "Governor: " "Offence: " "Ship: " "Foreign
ship."

An Act to regulate the Law relating to the trial of offences com-
mitted on the Sea within a certain distance of the Coasts
of Her Majesty's Dominions.

[16th August, 1878.]
Whereas the rightful jurisdiction of Her Majesty, her heirs
and successors, extends and lias always extended over the open
seas adjacent to the coasts of the United Kingdom and of all
other parts of Her Majesty's dominions to such a distance as
is necessary for the defence and security of such dominions:

And whereas it is expedient that all offences committed
on the open sea within a certain distance of the coasts of the
United Kingdom and of all other parts of Her Majesty's do-
minions, by whomsoever committed, should be dealt with ac-
cording to law:

Be it therefore enacted by the Queen's most Excellent Ma-
jesty, by and with the advice and consent of the Lords Spiritual
and Temporal, and Commons, in this present Parliament as-
sembled, and by the authority of the same, as follows:

982 CANADIAN CONSTITUTION: APPENDIX B.

1. This Act may be cited as the Territorial Waters Juris-
diction Act, 1878.

2. An offence committed by a person, whether he is or is
not a subject of Her Majesty, on the open sea within the terri-
torial waters of Her Majesty's dominions, is an offence within
the jurisdiction of the Admiral, although it may have been
committed on board or by means of a foreign ship, and the
person who committed such offence may be arrested, tried,
and punished accordingly.

3. Proceedings for the trial and punishment of a person
who is not a subject of Her Majesty, and who is charged with
any such offence as is declared by this Act to be within the
jurisdiction of the Admiral, shall not be instituted in any court
of the United Kingdom, except with the consent of one of
Her Majesty's Principal Secretaries of State, and on his certi-
ficate that the institution of such proceedings is in his opinion
expedient, and shall not be instituted in any of the dominions
of Her Majesty out of the United Kingdom, except with the
leave of the Governor of the part of the dominions in which
such proceedings are proposed to be instituted, and on his
certificate that it is expedient that such proceedings should be
instituted.

4. On the trial of any person who is not a subject of Her
Majesty for an offence declared by this Act to be within the
jurisdiction of the Admiral, it shall not be necessary to aver in
any indictment or information on such trial that such consent
or certificate of the Secretary of State or Governor as is required
by this Act has been given, and the fact of the same having
been given shall be presumed unless disputed by the defendant
at the trial; and the production of a document purporting to be
signed by one of Her Majesty's Principal Secretaries of State as
respects the United Kingdom, and by the Governor as respects
any other part of Her Majesty's dominions, and containing such
consent and certificate, shall be sufficient evidence for all the
purposes of this Act of the consent and certificate required by
this Act.

Proceedings before a justice of the peace or other magistrate
previous to the committal of an offender for trial or to the
determination of the justice or magistrate that the offender is
to be put upon his trial shall not be deemed proceedings for the
trial of the offence committed by such offender for the purposes
of the said consent and certificate under this Act.

5. Nothing in this Act contained shall be construed to be in
derogation of any rightful jurisdiction of Her Majesty, her heirs
or successors, under the law of nations, or to affect or prejudice

TEEEITORIAL WATERS JURISDICTION ACT. 983

any jurisdiction conferred by Act of Parliament or now by law
existing in relation to foreign ships or in relation to persons on
board such ships.

6. This Act shall not prejudice or affect the trial in manner
heretofore in use of any act of piracy as defined by the law of
nations, or affect or prejudice any law relating thereto; and
where any act of piracy as defined by the law of nations is also
any such offence as is declared by this Act to be within the juris-
diction of the Admiral, such offence may be tried in pursuance
of this Act, or in pursuance of any other Act of Parliament, law,
or custom relating thereto.

7. In this Act, unless there is something inconsistent in the
context, the following expressions shall respectively have the
meanings hereinafter assigned to them; that is to say:

" The jurisdiction of the Admiral," as used in this Act, in-
cludes the jurisdiction of the Admiralty of England and Ireland,
or either of such jurisdictions as used in any Act of Parliament;
and for the purpose of arresting any person charged with an
offence declared by this Act to be within the jurisdiction of the
Admiral, the territorial waters adjacent to the United Kingdom,
or any other part of Her Majesty's dominions, shall be deemed
to be within the jurisdiction of any judge, magistrate, or officer
having power within such United Kingdom, or other part of
Her Majesty's dominions, to issue warrants for arresting or to
arrest persons charged with offences committed within the juris-
diction of such judge, magistrate, or officer:

" United Kingdom," includes the Isle of Man, the Channel
Islands, and other adjacent islands:

" The territorial waters of Her Majesty's dominions," in
reference to the sea, means such part of the sea adjacent tu the
coast of the United Kingdom, or the coast of some other part of
Her Majesty's dominions, as is deemed by international law to
be within the territorial sovereignty of Her Majesty; and for
the purpose of any offence declared by this Act to be within the
jurisdiction of the Admiral, any part of the open sea within one
marine league of the coast measured from low- water mark shall
be deemed to be open sea within the territorial waters of Her
Majesty's dominions:

" Governor," as respects India, means the Governor-General
or the Governor of any presidency; and where a British posses-
sion consists of several constituent colonies, means the Governor-
General of the whole possession or the Governor of any of the
constituent colonies; and as respects any other British posses-
sion, means the officer for the time being administering the
government of such possession; also any person acting for or

984 CANADIAN CONSTITUTION: APPENDIX B.

in the capacity of Governor shall be included under the term
" Governor:"

" Offence," as used in this Act, means an act, neglect, or de-
fault of such a description as would, if committed within the
body of a county in England, be punishable on indictment
according to the law of England for the time being in force:

" Ship " includes every description of ship, boat, or other
floating craft:

" Foreign ship " means any ship which is not a British ship.

4. COLONIAL COURTS OF ADMIRALTY ACT, 1890.
53-54 Vict. cap. 27 (Imp.).
An Act to amend the Law respecting the exercise of Admiralty
Jurisdiction in Her Majesty's Dominions and elsewhere out
of the United Kingdom.

[25th July, 1890.]

1. This Act may be cited as the Colonial Courts of Admiralty
Act, 1890.

2. — (1) Every court of law in a British possession, which is
for the time being declared in pursuance of this Act to be a court
of Admiralty, or which, if no such declaration is in force in the
possession, has therein original unlimited civil jurisdiction, shall
be a court of Admiralty, with the jurisdiction in this Act men-
tioned, and may, for the purpose of that jurisdiction, exercise all
the powers which it possesses for the purpose of its other civil
jurisdiction; and such court, in reference to the jurisdiction con-
ferred by this Act, is in this Act referred to as a Colonial Court
of Admiralty. Where in a British possession the Governor is
the sole judical authority, the expression " court of law " for
the purposes of this section includes such Governor.

(2) The jurisdiction of a Colonial Court of Admiralty shall,
subject to the provisions of this Act, be over the like places,
persons, matters and things, as the Admiralty jurisdiction of
the High Court in England, whether existing by virtue of any
statute or otherwise, and the Colonial Court of Admiralty may
exercise such jurisdiction in like manner and to as full an
extent as the High Court in England, and shall have the same
regard as that Court to international law and the comity of
nations.

COIvONlAl, COURTS OF ADMIRAI.TY ACT. 985

(3) Subject to the provisions of this Act any enactment
referring to a Vice-Admiralty Court, which is contained in an
Act of the Imperial Parliament or iii a Colonial law, shall apply
to a Colonial Court of Admiralty, and be read as if the ex-
pression " Colonial Court of Admiralty ' were therein substi-
tuted for " Vice-Admiralty Court " or for other expressions
respectively referring to such Vice-Admiralty Courts or the
judge thereof; and the Colonial Court of Admiralty shall have
jurisdiction accordingly.

Provided as follows: —

(a) Any enactment in an Act of the Imperial Parliament
referring to the Admiralty jurisdiction of the High
Court in England, when applied to a Colonial Court of
Admiralty in a British possession, shall be read as if the
name of that possession were therein substituted for
England and Wales ; and —

(J)) A Colonial Court of Admiralty shall have, under the
Naval Prize Act, 1864, and under the Slave Trade Act,
1873, and any enactment relating to prize or the slave
trade, the jurisdiction thereby conferred on a Vice-Ad-
miralty Court and not the jurisdiction thereby conferred
exclusively on the High Court of Admiralty or the High
■ Court of Justice; but, unless for the time being duly
authorized, shall not, by virtue of this Act, exercise any
jurisdiction under the Naval Prize Act, 1864, "or other-
wise in relation to prize; and —

tion under this Act to try or punish a person for an
offence which, according to the law of England, is
punishable on indictment; and —

(d) A Colonial Court of Admiralty shall not have any greater

jurisdiction in relation to the laws and regulations re-
lating to Her Majesty's Navy at sea, or under any Act
providing for the discipline of Her Majesty's Navy, than
may be, from time to time, conferred on such court by
Order in Council.

(4) Where a Court in a British possession exercises in respect
of matters arising outside the body of a county or other like part
of a British possession any jurisdiction exercisable under this
Act, that jurisdiction shall be deemed to be exercised under this
Act and not otherwise.

3. The legislature of a British possession may, by any Col-
onial law, —

(a) declare any court of unlimited civil jurisdiction, whether
original or appellate, in that possession to be a Colonial

986 CANADIAN constitution: appendix b.

Court of Admiralty, and provide for the exercise by such
court of its jurisdiction under this Act, and limit terri-
torially or otherwise, the extent of such jurisdiction;
and —
(ft) confer upon any inferior or subordinate court in that
possession such partial or limited Admiralty jurisdic-
tion, under such regulations and with such appeal (if
any), as may seem fit:

Provided that any such Colonial law shall not confer any
jurisdiction which is not, by this Act, conferred upon a Colonial
Court of Admiralty.

4. Every Colonial law, which is made in pursuance of this
Act, or affects the jurisdiction of or practice or procedure in
any court of such possession in respect of the jurisdiction con-
ferred by this Act, or alters any such Colonial law as above in
this section mentioned, which has been previously passed, shall,
unless previously approved by Her Majesty through a Secretary
of State, either be reserved for the signification of Her Majesty's
pleasure thereon, or contain a suspending clause providing that
such law shall not come into operation until Her Majesty's
pleasure thereon has been publicly signified in the British posses-
sion in which it has been passed.

5. Subject to rules of court under this Act, judgments of a
court in a British possession given or made in the exercise of
the jurisdiction conferred on it by this Act, shall be subject to
the like local appeal, if any, as judgments of the court in the
exercise of its ordinary civil jurisdiction, and the court having
cognisance of such appeal shall, for the purpose thereof, possess
all the jurisdiction by this Act conferred upon a Colonial Court
of Admiralty.

6. — (1) The appeal from a judgment of any court in a British
possession in the exercise of the jurisdiction conferred by this
Act, either where there is as of right no local appeal or after a
decision on local appeal, lies to Her Majesty the Queen in
Council.

(2) Save as may be otherwise specially allowed in a particu-
lar case by Her Majesty the Queen in Council, an appeal under
this section shall not be allowed —

(a) from any judgment not having the effect of a definitive
judgment unless the court appealed from has given leave
for such appeal, nor —

(&) from any judgment unless the petition of appeal has
been lodged within the time prescribed by rules, or if no
time is prescribed within six months from the date of
the judgment appealed against, or if leave to appeal has
been given then from the date of such leave.

COLONIAI, COURTS OF ADMIRALTY ACT. 987

(3) For the purpose of appeals under this Act, Her Majesty
the Queen in Council and the Judicial Committee of the Privy-
Council shall, subject to rules under this section, have all such
powers for making and enforcing judgments, whether inter-
locutory or final, for punishing contempts, for requiring the
payment of money into court, or for any other purpose, as may
be necessary, or as were possessed by the High Court of Dele-
gates before the passing of the Act transferring the powers of
such court to Her Majesty in Council, or as are, for the time
being, possessed by the High Court in England or by the court
appealed from in relation to the like matters as those forming
the subject of appeals under this Act.

(4) All Orders of the Queen in Council or the Judicial Com-
mittee of the Privy Council for the purposes aforesaid or other-
wise in relation to appeals under this Act shall have full effect
throughout Her Majesty's dominions, and in all places where
Her Majesty has jurisdiction.

(5) This section shall be in addition to and not in
derogation of the authority of Her Majesty in Council
or the Judicial Committee of the Privy Council arising other-
wise than under this Act, and all enactments relating to appeals
to Her Majesty in Council or to the powers of Her Majesty in
Council or the Judicial Committee of the Privy Council in re-
lation to those appeals, whether for making rules and orders or
otherwise, shall extend, save as otherwise directed by Her
Majesty in Council, to appeals to Her 'Majesty in Council under
this Act.

7. — (1) Rules of court for regulating the procedure and
practice (including fees and costs) in a court in a British pos-
session in the exercise of the jurisdiction conferred by this
Act, whether original or appellate, may be made by the same
authority and in the same manner as rules touching the prac-
tice, procedure, fees and costs in the said court in the exercise
of its ordinary civil jurisdiction respectively are made:

Provided that the rules under this section shall not, save as
provided by this Act, extend to matters relating to the slave
trade, and shall not (save as provided by this section) come
into operation until they have been approved by Her Majesty
in Council, but on coming into operation shall have full effect
as if enacted in this Act; and any enactment inconsistent there-
with shall, so far as it is so inconsistent, be repealed.

(2) It shall be lawful for Her Majesty in Council, in approv-
ing rules made under this section, to declare that the rules so
made with respect to any matters which appear to Her Majesty

988 caintadian constitution: appendix b.

to be matters of detail or of local concern may be revoked,
varied or added to, without the approval required by this section.

(3) Such rules may provide for the exercise of any jurisdic-
tion conferred by this Act by the full court, or by any judge or
judges thereof, and subject to any rules, where the ordinary
civil jurisdiction of the court can, in any case, be exercised by a
single judge, any jurisdiction conferred by this Act may, in the
like case, be exercised by a single judge.

8. — (1) Subject to the provisions of this section nothing in
this Act shall alter the application of any droits of Admiralty
or droits of or forfeitures to the Crown in a British possession;
and such droits and forfeitures, when condemned by a court
of a British possession in the exercise of the jurisdiction con-
ferred by this Act, shall, save as is otherwise provided by any
other Act, be notified, accounted for and dealt with in such
manner as the Treasury from time to time direct, and the
officers of every Colonial Court of Admiralty and of every
other court in a British possession exercising Admiralty juris-
diction shall obey such directions in respect of the said droits
and forfeitures as may be, from time to time, given by the
Treasury.

(2) It shall be lawful for Her Majesty the Queen in Council
by Order to direct that, subject to any conditions, exceptions,
reservations and regulations contained in the Order, the said
droits and forfeitures condemned by a court in a British pos-
session shall form part of the revenues of that possession, either
for ever or for such limited term or subject to such revocation
as may be specified in the Order,

(3) If and so long as any of such droits or forfeitures by
virtue of this or any other Act form part of the revenues of
the said possession, the same shall, subject to the provisions of
any law for the time being applicable thereto, be notified,
accounted for and dealt with in manner directed by the Govern-
ment of the possession, and the Treasury shall not have any
power in relation thereto.

9. — (1) It shall be lawful for Her Majesty, by commission,
under the Great Seal, to empower the Admiralty to establish
in a British possession any Vice-Admiralty Court or Courts.

(2) Upon the establishment of a Vice- Admiralty Court in
a British possession, the Admiralty, by writing under their
hands and the seal of the office of Admiralty, in such form as
the Admiralty may direct, may appoint a judge, registrar,
marshal and other officers of the court, and may cancel any
such appointment ; and in addition to any other jurisdiction of

COI.ONIAI, COURTS OF ADMIRALTY ACT. 989

such court, may (subject to the limits imposed by this Act or
the said commission from Her Majesty) vest in such court the
whole or any part of the jurisdiction by or by virtue of this
Act conferred upon any courts of that British possession; and
may vary or revoke such vesting, and while such vesting is in
force the power of such last-mentioned courts to exercise the
jurisdiction so vested shall be suspended.

Provided that —

(a) nothing in this section shall authorize a Vice- Admiralty
Court so established in India or in any British posses-
sion having a representative legislature, to exercise any
jurisdiction except for some purpose relating to prize, to
Her Majesty's Navy, to the slave trade, to the matters
dealt with by the Foreign Enlistment Act, 1870, or the
Pacific Islanders Protection Acts, 1872 and 1875, or to
matters in which questions arise relating to treaties or
conventions with foreign countries, or to international
law; and —

( ft ) in the event of a vacancy in the office of judge, registrar,
marshal or other officer of any Vice-Admiralty Court in
a British possession, the Governor of that possession
may appoint a fit person to fill the vacancy until an
appointment to the office is made by the Admiralty.

(3) The provisions of this Act with respect to appeals to
Her Majesty in Council from courts in British possessions in
the exercise of the jurisdiction conferred by this Act, shall
apply to appeals from Vice-Admiralty Courts, but the rules
and orders made in relation to appeals from Vice-Admiralty
Courts may differ from the rules made in relation to appeals
from the said courts in British possessions,

(4) If Her Majesty at any time by commission under the
Great Seal so directs, the Admiralty shall, by writing under
their hands and the seal of the office of Admiralty, abolish a
Vice-Admiralty Court established in any British possession
under this section, and upon such abolition the jurisdiction of
any Colonial Court of Admiralty in that possession which was
previously suspended shall be revived.

10. Nothing in this Act shall affect any power of appoint-
ing a vice-admiral in and for any British possession or any place
therein, and whenever there is not a formally appointed vice-
admiral in a British possession or any place therein, the Gov-
ernor of the possession shall be ex-officio vice-admiral thereof.

11. — (1) The provisions of this Act with respect to Colonial
Courts of Admiralty shall not apply to the Channel Islands.

990 CANADIAN CONSTITUTION: APPENDIX B.

(2) It shall be lawful for the Queen in Council by Order to
declare, with respect to any British possession which has not a
representative legislature, that the jurisdiction conferred by
this Act on Colonial Courts of Admiralty shall not be vested
in any court of such possession, or shall be vested only to the
partial or limited extent specified in the Order.

12. It shall be lawful for Her Majesty .the Queen in Council
by Order to direct that this Act shall, subject to the conditions,
exceptions and qualifications (if any) contained in the Order,
apply to any Court established by Her Majesty for the exercise
of jurisdiction in any place out of Her Majesty's dominions
which is named in the Order as if that Court were a Colonial
Court of Admiralty, and to provide for carrying into effect such
application.

13. — (1) It shall be lawful for Her Majesty the Queen in
Council by Order to make rules as to the practice and pro-
cedure (including fees and costs) to be observed in and the
returns to be made from Colonial Courts of Admiralty and
Vice-Admiralty Courts in the exercise of their jurisdiction in
matters relating to the slave trade, and in and from East
African Courts as defined by the Slave Trade (East African
Courts) Acts, 1873 and 1879.

(2) Except when inconsistent with such Order in Council,
the rules of court for the time being in force in a Colonial Court
of Admiralty or Vice-Admiralty Court shall, so far as applicable,
extend to proceedings in such court in matters relating to the
slave trade.

(3) The provisions of this Act with respect to appeals to Her
Majesty in Council, from courts in British possessions in the
exercise of the jurisdiction conferred by this Act, shall apply,
with the necessary modifications, to appeals from judgments of
any East African court made or purporting to be made in exer-
cise of the jurisdiction under the Slave Trade (East African
Courts) Acts, 1873 and 1879.

14. It shall be lawful for Her Majesty in Council from time
to time to make Orders for the purposes authorized by this
Act, and to revoke and vary such Orders; and every such Order
while in operation shall have effect as if it were part of this
Act.

15. In the construction of this Act, unless the context other-
wise requires, —

The expression ** representative legislature " means, in rela-
tion to a British possession, a legislature comprising a
legislative body of which at least one-half are elected by
inhabitants of the British possession.

OOI.ONIAI, COURTS OF ADMIRAIvTY ACT. 991

The expression " unlimited civil jurisdiction " means civil
jurisdiction unlimited as to the value of the subject-
matter at issue, or as to the amount that may be claimed
or recovered.

The expression " judgment " includes a decree, order, and
sentence.

The expression " appeal " means any appeal, rehearing, or
review ; and the expression " local appeal " means an
appeal to any court inferior to Her Majesty in Council.

The expression " Colonial law " means any Act, ordinance
or other law having the force of legislative enactment in
a British possession and made by any authority, other
than the Imperial Parliament or Her Majesty in Council,
competent to make laws for such possession.

16. — (1) This Act shall, save as otherwise in this Act pro-
vided, come into force in every British possession on the first
day of July, one thousand eight hundred and ninety-one.

Provided that —

(a) This Act shall not come into force in any of the British
possessions named in the First Schedule to this Act
until Her Majesty so directs by Order in Council, and
until the day named in that behalf in such Order; and —

(6) If before any day above mentioned rules of court for the
Colonial Court of Admiralty in any British possession
have been approved by Her Majesty in Council, this Act
may be proclaimed in that possession by the Governor
thereof, and on such proclamation shall come into force
on the day named in the proclamation.

(2) The day upon which this Act comes into force in any
British possession shall, as regards that British possession, be
deemed to be the commencement of this Act.

(3) If, on the commencement of this Act in any British
possession, rules of court have not been approved by Her
Majesty in pursuance of this Act, the rules in force at such
commencement under the Vice-Admiralty Courts Act, 1863, and
in India the rules in force at such commencement regulating
the respective Vice-Admiralty Courts or Courts of Admiralty
in India, including any rules made with reference to proceedings
instituted on behalf of Her Majesty's ships, shall, so far as
applicable, have effect in the Colonial Court or Courts of Ad-
miralty of such possession, and in any Vice-Admiralty Court
established under this Act in that possession, as rules of
court under this Act, and may be revoked and varied
accordingly and all fees payable under such rules may be taken
in such manner as the Colonial Court may direct, so however

992 CANADIAN constitution: appendix b.

that the amount of each such fee shall, so nearly as practicable,
be paid to the same officer or person who but for the passing
of this Act would have been entitled to receive the same in
respect of like business. So far as any such rules are inappli-
cable or do not extend, the rules of court for the exercise by a
court of its ordinary civil jurisdiction shall have effect as rules
for the exercise by the same court of the jurisdiction conferred
by this Act.

(4) At any time after the passing of this Act any Colonial
law may be passed, and any Vice-Admiralty Court may be
established and jurisdiction vested in such Court, but any such
law, establishment, or vesting shall not come into effect until
the commencement of this Act.

17. On the commencement of this Act in any British posses-
sion, but subject to the provisions of this Act, every Vice-Ad-
miralty Court in that possession shall be abolished ; subject as
follows: —

(1) All judgments of such Vice- Admiralty Court shall be

executed and may be appealed from in like manner as
if this Act had not passed, and all appeals from any
Vice-Admiralty Court pending at the commencement of
this Act shall be heard and determined, and the judg-
ment thereon executed as nearly as may be in like
manner as if this Act had not passed:

(2) All proceedings pending in the Vice- Admiralty Court in

any British possession at the commencement of this
Act shall, notwithstanding the repeal of any enactment
by this Act, be continued in a Colonial Court of Ad-
miralty of the possession in manner directed by rules of
court, and, so far as no such rule extends, in like man-
ner, as nearly as may be, as if they had been originally
begun in such court:

(3) Where any person holding an office, whether that of

judge, registrar or marshal, or any other office in any
such Vice-Admiralty Court in a British possession,
suffers any pecuniary loss in consequence of the aboli-
tion of such court, the Government of the British pos-
session, on complaint of such person, shall provide that
such person shall receive reasonable compensation (by
way of an increase of salary or a capital sum, or other-
wise) in respect of his loss, subject nevertheless to the
performance, if required by the said Government, of the
like duties as before such abolition:

(4) All books, papers, documents, office furniture and other

things at the commencement of this Act belonging or

COI.ONIAI, COURTS OF ADMIRALTY ACT. 993

appertaining to any Vice-Admiralty Court, shall be de-
livered over to the proper officer of the Colonial Court of
Admiralty or be otherwise dealt with in such manner as,
subject to any directions from Her Majesty, the Governor
may direct:
(5) Where, at the commencement of this Act in a British pos-
session, any person holds a commission to act as advo-
cate in any Vice-Admiralty Court abolished by this Act,
either for Her Majesty or for the Admiralty, such com-
mission shall be of the same avail in every court of the
same British possession exercising jurisdiction under
this Act, as if such court were the court mentioned or
referred to in such commission.
18. The Acts specified in the Second Schedule to this Act
shall, to the extent mentioned in the third column of that
schedule, be repealed as respects any British possession as from
the commencement of this Act in that possession, and as respects
any courts out of Her Majesty's dominions as from the date of
any Order applying this Act:
Provided that —

(a) Any appeal against a judgment made before the com-
mencement of this Act may be brought and any such
appeal and any proceedings or appeals pending at the
commencement of this Act may be carried on and com-
pleted and carried into effect as if such appeal had not
been enacted; and —
(6) All enactments and rules at the passing of this Act in
force touching the practice, procedure, fees, costs, and
returns in matters relating to the slave trade in Vice-
Admiralty Courts and in East African Courts shall have
effect as rules made in pursuance of this Act, and shall
apply to Colonial Courts of Admiralty, and may be
altered and revoked accordingly.

SCHEDULES.

FIRST SCHEDULE.
British Possessions in which Operation of Act is Delayed.
New South Wales. | Victoria.

St. Helena. British Honduras.

CAN. CON. — 63

994

CANADIAN CONSTITUTION: APPENDIX B.

SECOND SCHEDULE.
Enactments Repealed.

Session and
Chapter.

56 Geo. 3, c. 82 .

Title of Act.

2 & 3 WiU. 4, c. 51

3 & 4 Will. 4, c. 41

6 & 7 Vict., c. S^

An Act to render valid
the Judicial Acts of
Surrogates of Vice-Ad-
miralty Courts abroad,
during vacancies in of-
fice of Judges of such
courts.

An Act to regulate the
practice and the fees
in the Vice-Admiralty
Courts abroad, and to
obviate doubts as to
their jurisdiction.

An Act for the better
administration of jus-
tice in His Majesty's
Privy Council.

An Act to make further
regulations for facili-
tating the hearing ap-
peals and other mat-
ters by the Judicial
Committee of the
Privy Council.

Extent of Repeal.

The whole Act.

Section two.

In section two, the words
"or from any Admir-
" alty or Vice-Admir-
"alty Court," and the
words " or the Lords
" Commissioners of Ap-
" peals in prize causes
" or their surrogates."

In section three, the
words " and the High
" Court of Admiralty
" of England," and the
words " and from any
" Admiralty or Vice-
" Admiralty Court."

In section five, from the
first "the High Court
" of Admiralty " to the
end of the section.

In section seven, the
words " and from Ad-
" miralty or Vice-Ad-
"miralty Courts."

Sections nine and ten,
so far as relates to
maritime causes.

In section twelve, the
words " or maritime."

In section fifteen, the
words " and Admiralty
" and Vice-Admiralty."

COI^ONIAI, COURTS OF ADMIRALTY ACT.

995

Session and
Chapter.

7&8Vict.,c.69.

26 Vict., c. 24 .

30 & 31 Vict., c. 45

36 & 37 Vict., c. 59

36 & 37 Vict, c. 88

38 & 39 Vict., c. 51

Title of Act.

An Act for amending an
Act passed in the fourth
year of the reign of
His late Majesty in-
tituled : " An Act for
" the better adminis-
*' tration of justice
" in His Majesty's
" Privy Council," and
to extend its jurisdic-
tion and powers.

The Vice - Admiralty
Courts Act, 1863.

The Vice- Admiralty
Court Act Amendment
Act, 1867.

The Slave Trade (East
African Courts) Act*
1873.

The Slave Trade Act,
1873.

The Pacific Islanders
Protection Act, 1875.

Extent of Repeal.

In section twelve, the
words " and from Ad-
" miralty and Vice-Ad-
" miralty Courts," and
so much of the rest of
the section as relates
to maritime causes.

The whole Act.
The whole Act.

Sections four and five.

Section twenty as far as
relates to the taxation
of any costs, charges,
and expenses which
can be taxed in pur-
suance of this Act.

In section twenty-three,
the words " under the
" Vice - Admiralty
" Courts Act, 1863."

So much of section six
as authorizes Her Ma-
jesty to confer Admir-
alty jurisdiction on
any court.

5. FOREIGN TRIBUNALS EVIDENCE ACT,
19-20 Vict. cap. 113 (Imp.).
An Act to provide for taking Evidence in Her Majesty's Bo-
minions in relation to Civil and Commercial Matters vending
hefore Foreign Tribunals.

[29th July, 1856.]
" Whereas it is expedient that Facilities be afforded for taking
Evidence in Her Majesty's Dominions in relation to Civil and
Commercial Matters pending before Foreign Tribunals:" Be it
enacted by the Queen's most Excellent Majesty, by and with the
Advice and Consent of the Lords Spiritual and Temporal, and

996 CANADIAN constitution: appendix b.

Commons, in this present Parliament assembled, and by the
Authority of the same, as follows: —

I. Where, upon an Application for this Purpose, it is made
to appear to any Court or Judge having Authority under this
Act that any Court or Tribunal of competent Jurisdiction in
a Foreign Country, before which any Civil or Commercial
Matter is pending, is desirous of obtaining the Testimony in
relation to such Matter of any Witness or Witnesses within the
Jurisdiction of such first-mentioned Court, or of the Court to
which such Judge belongs, or of such Judge, it shall be lawful
for such Court or Judge to order the Examination upon Oath,
upon Interrogatories or otherwise, before any Person or Persons
named in such Order, of such Witness or Witnesses accord-
ingly; and it shall be lawful for the said Court or Judge, by the
same Order, or for such Court or Judge or any other Judge
having Authority under this Act, by any subsequent Order, to
command the Attendance of any Person to be named in such
Order, for the Purpose of being examined, or the Production of
any Writings or other Documents to be mentioned in such
Order, and to give all such Directions as to the Time, Place, and
Manner of such Examination, and all other Matters connected
therewith, as may appear reasonable and just; and any such
Order may be enforced in like Manner as an Order made by such
Court or Judge in a Cause depending in such Court or before
such Judge.

II. A Certificate under the Hand of the Ambassador, Minister,
or other Diplomatic Agent of any Foreign Power, received as
such by Her Majesty, or in case there be no such Diplomatic
Agent, then of the Consul-General or Consul of any such Foreign
Power at London, received and admitted as such by Her Majesty,
that any Matter in relation to which an Application is made
under this Act is a Civil or Commercial Matter pending before
a Court or Tribunal in the Country of which he is the Diplomatic
Agent or Consul having Jurisdiction in the Matter so pending,
and that such Court or Tribunal is desirous of obtaining the
Testimony of the Witness or Witnesses to whom the Application
relates, shall be Evidence of the Matters so certified; but where
no such Certificate is produced other Evidence to that Effect
shall be admissible.

III. It shall be lawful for every Person authorized to take
the Examination of Witnesses by any Order made in pursuance
of this Act to take all such Examinations upon the Oath of
the Witnesses, or Affirmation in Cases where Affirmation is
allowed by Law instead of Oath, to be administered by the
Person so authorized; and if upon such Oath or Affirmation any

FOREIGN TRIBUNALS EVIDENCE ACT. 997

Person making the same wilfully and corruptly give any false
Evidence, every Person so offending shall be deemed and taken
to be guilty of Perjury.

IV. Provided always, That every Person whose Attendance
shall be so required shall be entitled to the like Conduct Money
and Payment for Expenses and Loss of Time as upon Attendance
at a Trial.

V. Provided also, That every Person examined under any
Order made under this Act shall have the like Right to refuse
to answer Questions tending to criminate himself and other
Questions, which a Witness in any Cause pending in the Court
by which or by a Judge whereof or before the Judge by whom
the Order for Examination was made would be entitled to ;
and that no Person shall be compelled to produce under any
such Order as aforesaid any Writing or other Document that
he would not be compellable to produce at a Trial of such a
Cause.

VI. Her Majesty's Superior Courts of Common Law at West-
minster and in Dublin respectively, the Court of Session in
Scotland, and any Supreme Court in any of Her Majesty's
Colonies or Possessions abroad, and any Judge of any such
Court, and every Judge in any such Colony or Possession who
by any Order of Her Majesty in Council may be appointed for
this Purpose, shall respectively be Courts and Judges having
Authority under this Act: Provided, that the Lord Chancellor,
with the Assistance of Two of the Judges of the Courts of Com-
mon Law at Westminster, shall frame such Rules and Orders as
shall be necessary or proper for giving Effect to the Provisions
of this Act, and regulating the Procedure under tre same.

6. COLONIAL TRIBUNALS EVIDENCE ACT,

22 Vict. cap. 20 (Imp.).

An Act to provide for taking Evidence in Suits and Proceedings
pending before Tribunals in Her Majesty's Dominions in
Places out of the Jurisdiction of such, Tribunals.

[19th April, 1859.]

Whereas it is expedient that facilities be afforded for taking
evidence in or in relation to actions, suits, and proceedings pend-
ing before tribunals in Her Majesty's dominions in places in such
dominions out of the jurisdiction of such tribunals: Be it enacted
by the Queen's most Excellent Majesty, by and with the advice
and consent of the lords spiritual and temporal, and commons.

998 CANADIAN CONSTITUTION: APPENDIX B.

in this present Parliament assembled, and by the authority of
the same, as follows: —

1. Where upon an application for this purpose it is made
to appear to any court or judge having authority under this
Act that any court or tribunal of competent jurisdiction in Her
Majesty's dominions has duly authorized, by commission, order,
or other process, the obtaining the testimony in or in relation
to any action, suit, or proceeding pending in or before such court
or tribunal of any witness or witnesses out of the jurisdiction of
such court or tribunal, and within the jurisdiction of such first-
mentioned court, or of the court to which such judge, or of such
judge, it shall be lawful for such court or judge to order the
examination before the person or persons appointed, and in
manner and form directed by such commission, order, or other
process as aforesaid, of such witness or witnesses accordingly;
and it shall be lawful for the said court or judge by the same
order, or for such court or judge, or any other judge having
authority under this Act, by any subsequent order, to command
the attendance of any person to be named in such order for the
purpose of being examined, or the production of any writings
or other documents to be mentioned in such order, and to give
all such directions as to the time, place, and manner of such
examination, and all other matters connected therewith, as may
appear reasonable and just; and any such order may be enforced,
and any disobedience thereof punished, in like manner as in
case of an order made by such court or judge in a cause depend-
ing in such court or before such judge.

2. Every person examined as a witness under any such com-
mission, order, or other process as aforesaid, who shall upon
such examination wilfully and corruptly give any false evidence,
shall be deemed and taken to be guilty of perjury.

3. Provided always, that every person whose attendance shall
be so ordered shall be entitled to the like conduct money, and
payment for expenses and loss of time, as upon attendance at a
trial.

4. Provided also, that every person examined under any such
commission, order, or other process as aforesaid, shall have the
like right to refuse to answer questions tending to criminate
himself, and other questions which a witness in any cause pend-
ing in the court by which, or by a judge whereof, or before the
judge by whom the order for examination was made, would be
entitled to ; and that no person shall be compelled to produce
under any such order as aforesaid any writing or other document
that he would not be compellable to produce at a trial of such
a cause.

COLONIAL TRIBUNALS EVIDENCE ACT. 999

5. Her Majesty's Superior Courts of Common Law at West-
minster and in Dublin respectively, the Court of Session in
Scotland, and any Supreme Court in any of Her Majesty's col-
onies or possessions abroad, and any judge of any such court,
and every judge in any such colony or possession who, by any
order of Her Majesty in Council, may be appointed for this pur-
pose, shall respectively be courts and judges having authority
under this Act.

6. It shall be lawful for the Lord Chancellor of Great Britain,
with the assistance of two of the judges of the Courts of Com-
mon Law at Westminster, so far as relates to England, and for
the Lord Chancellor of Ireland, with the assistance of two of
the judges of the Courts of Common Law at Dublin, so far as
relates to Ireland, and for two of the judges of the Court of
Sessions, so far as relates to Scotland, and for the chief or only
judge of the Supreme Court in any of Her Majesty's colonies or
possessions abroad, so far as relates to such colony or posses-
sion, to frame such rules and orders as shall be necessary or
proper for giving effect to the provisions of this Act, and regulat-
ing the procedure under the same.

7. COLONIAL LAW ASCERTAINMENT ACT,
22 & 23 Vict. cap. 63 (Imp.).

An Act to afford Facilities for the more certain Ascertainment
of the Law administered in one Part of Her Majesty's Bo-
minions when pleaded in the Courts of another Part thereof.

[13th August, 1859.]
Whereas great improvements in the administration of the
law would ensue if facilities were afforded for more certainly
ascertaining the law administered in one part of Her Majesty's
dominions when pleaded in the courts of another part thereof:
Be it therefore enacted, by the Queen's most excellent Majesty,
by and with the advice and consent of the lords spiritual and
temporal, and commons, in this present Parliament assembled,
and by the authority of the same, as follows:

1. If in any action depending in any court within Her
Majesty's dominions, it shall be the opinion of such court, that
it is necessary or expedient for the proper disposal of such
action to ascertain the law applicable to the facts of the case
as administered in any other part of Her Majesty's dominions
on any point on which the law of such other part of Her Ma-
jesty's dominions is different from that in which the court is
situate, it shall be competent to the court in which such action

1000 CANADIAN CONSTITUTION: APPENDIX B.

may depend to direct a case to be prepared setting forth the
facts, as these may be ascertained by verdict of a jury or other
mode competent, or may be agreed upon by the parties, or
settled by such person or persons as may have been appointed
by the court for that purpose in the event of the parties not
agreeing; and upon such case being approved of by such court
or a judge thereof, they shall settle the questions of law aris-
ing out of the same on which they desire to have the opinion
of another court, and shall pronounce an order remitting
the same, together with the case, to the court in such other
part of Her Majesty's dominions, being one of the superior courts
thereof, whose opinion is desired upon the law administered
by them as applicable to the facts set forth in such case, and
desiring them to pronounce their opinion on the questions sub-
mitted to them in the terms of the Act; and it shall be com-
petent to any of the parties to the action to present a petition
to the court whose opinion is to be obtained, praying such last-
mentioned court to hear parties or their counsel, and to pro-
nounce their opinion thereon in terms of this Act, or to pro-
nounce their opinion without hearing parties or counsel; and
the court to which such petition shall be presented shall, if
they think fit, appoint an early day for hearing parties or their
counsel on such case, and shall thereafter pronounce their
opinion upon the questions of law as administered by them
which are submitted to them by the court; and in order to their
pronouncing such opinion they shall be entitled to take such
further procedure thereupon as to them shall seem proper,

2. Upon such opinion being pronounced, a copy thereof, cer-
tified by an officer of such court, shall be given to each of the
parties to the action by whom the same shall be required, and
shall be deemed and held to contain a correct record of such
opinion.

3. It shall be competent to any of the parties to the action,
after having obtained such certified copy of such opinion, to
lodge the same with an officer of the court in which the action
may be depending, who may have the official charge thereof,
together with a notice of motion, setting forth that the party
will, on a certain day named in such notice, move the court to
apply the opinion contained in such certified copy thereof to
the facts set forth in the case hereinbefore specified; and the
said court shall thereupon apply such opinion to such facts, in
the same manner as if the same had been pronounced by such
court itself upon a case reserved for opinion of the court, or
upon special verdict of a jury; or the said last-mentioned court
shall, if it think fit, when the said opinion has been obtained

COLONIAL LAW ASCERTAINMENT ACT. 1001

before trial, order such opinion to be submitted to the jury
with the other facts of the case as evidence, or conclusive evi-
dence, as the court may think fit, of the foreign law therein
stated ; and the said opinion shall be so submitted to the jury.

4. In the event of an appeal to Her Majesty in Council or to
the House of Lords in any such action, it shall be competent to
bring under the review of Her Majesty in Council or of the
House of Lords the opinion pronounced as aforesaid by any
court whose judgments are reviewable by Her Majesty in Coun-
cil or by the House of Lords; and Her Majesty in Council or
that House may respectively adopt or reject such opinion of
any court whose judgments are respectively reviewable by them,
as the same shall appear to them to be well founded or not in
law.

5. In the construction of this Act, the word '* action " shall
include every judicial proceeding instituted in any court, civil,
criminal, or ecclesiastical; and the words "Superior Court"
shall include, in England, the Superior Courts of Law at West-
minster, the Lord Chancellor, the Lords Justices, the Master of
the Rolls or any Vice-Chancellor, the Judge of the Court of Ad-
miralty, the Judge Ordinary of the Court for Divorce and Mat-
rimonial Causes, and the Judge of the Court of Probate ; in
Scotland, the High Court of Justiciary, and the Court of Session
acting by either of its divisions; in Ireland, the Superior Courts
of Law at Dublin, the Master of the Rolls, and the Judge of
the Admiralty Court; and in any other part of Her Majesty's
dominions, the Superior Courts of Law or Equity therein.

8. FOREIGN LAW ASCERTAINMENT ACT,
24 & 25 Vict. cap. 11 (Imp.).
An Act to afford Facilities for the letter Ascertainment of the
Law of Foreign Countries when pleaded in Courts within
Her Majesty's Dominions.

[17th May, 1861.]
Whereas an Act was passed in the twenty-second and twenty-
third years of Her Majesty's reign, intituled "An Act to afford
facilities for the more certain ascertainment of the law admin-
istered in one part of Her Majesty's dominions when pleaded
in the courts of another part thereof":

And whereas it is expedient to afford the like facilities for
the better ascertainment, in similar circumstances, of the law
of any foreign country or state with the Government of which
Her Majesty may be pleased to enter into a convention for the

1002 CANADIAN constitution: appendix b.

purpose of mutually ascertaining the law of such foreign coun-
try or state when pleaded in actions depending in any courts
within Her Majesty's dominions and the law as administered
in any part of Her Majesty's dominions when pleaded in actions
depending in the courts of such foreign country or state:

Be it therefore enacted by the Queen's most excellent Ma-
jesty, by and with the advice and consent of the lords spiritual
and temporal, and commons, in this present Parliament as-
sembled, and by the authority of the same, as follows, viz.:

1, If, in any action depending in any of the Superior Courts
within Her Majesty's dominions, it shall be the opinion of such
court that it is necessary or expedient, for the disposal of such
action, to ascertain the law applicable to the facts of the case
as administered in any foreign state or country with the Gov-
ernment of which Her Majesty shall have entered into such
convention as aforesaid, it shall be competent to the court in
which such action may depend to direct a case to be prepared
setting forth the facts as these may be ascertained by verdict
of jury or other mode competent, or as may be agreed upon by
the parties, or settled by such person or persons as may have
been appointed by the court for that purpose in the event of
the parties not agreeing; and upon such case being approved
of by such court or a judge thereof, such court or judge shall
settle the questions of law arising out of the same on which
they desire to have the opinion of another court, and shall pro-
nounce an order remitting the same, together with the case, to
such superior court in such foreign state or country as shall be
agreed upon in said convention, whose opinion is desired upon
the law administered by such foreign court as applicable to the
facts set forth in such case, and requesting them to pronounce
their opinion on the questions submitted to them ; and upon such
opinion being pronounced, a copy thereof, certified by an officer of
such court, shall be deemed and held to contain a correct record
of such opinion.

2. It shall be competent to any of the parties to the action,
after having obtained such certified copy of such opinion, to
lodge the same with the officer of the court within Her Majesty's
dominions in which the action may be depending who may have
the official charge thereof, together with a notice of motion
setting forth that the party will, on a certain day named in
such notice, move the court to apply the opinion contained in
such certified copy thereof to the facts set forth in the case
hereinbefore specified; and the said court shall thereupon, if it
shall see fit, apply such opinion to such facts, in the same man-
ner as if the same had been pronounced by such court itself

rOKEIGN LAW ASCERTAINMENT ACT. 1003

upon a case reserved for opinion of the court, or upon special
verdict of a jury; or the said last-mentioned court shall, if it
think fit, when the said opinion has been obtained before trial,
order such opinion to be submitted to the jury with the other
facts of the case as conclusive evidence of the foreign law therein
stated; and the said opinion shall be so submitted to the jury:
Provided always, that if after having obtained such certified
copy the court shall not be satisfied that the facts had been
properly understood by the foreign court to which the case was
remitted, or shall on any ground whatsoever be doubtful whether
the opinion so certified does correctly represent the foreign
law as regards the facts to which it is to be applied, it shall
be lawful for such court to remit the said case, either with or
without alterations or amendments, to the same or to any other
such superior court in such foreign state as aforesaid, and so
from time to time as may be necessary or expedient.

3. If in any action depending in any court of a foreign country
or state with whose Government Her Majesty shall have entered
into a convention as above set forth, such court shall deem it
expedient to ascertain the law applicable to the facts of the case
as administered in any part of Her Majesty's dominions, and
if the foreign court in which such action may depend shall
remit to the court in Her Majesty's dominions whose opinion is
desired a case setting forth the facts and the questions of
law arising out of the same on which they desire to have the
opinion of a court within Her Majesty's dominions, it shall be
competent to any of the parties to the action to present a peti-
tion to such last-mentioned court, whose opinion is to be ob-
tained, praying such court to hear parties or their counsel, and
to pronounce their opinion thereon in terms of this Act, or to
pronounce their opinion without hearing parties or counsel;
and the court to which such petition shall be presented shall
consider the same, and, if they think fit, shall appoint an early
day for hearing parties or their counsel on such case, and shall
pronounce their opinion upon the questions of law as admin-
istered by them which are submitted to them by the foreign
court; and in order to their pronouncing such opinion they shall
be entitled to take such further procedure thereupon as to them
shall seem proper; and upon such opinion being pronounced a
copy thereof, certified by an ofiicer of such court, shall be given
to each of the parties to the action by whom the same shall be
required.

4. In the construction of this Act the word " action " shall
include every judicial proceeding instituted in any court, civil,
criminal, or ecclesiastical ; and the words " Superior Courts "

1004 CANADIAN CONSTITUTION: APPENDIX B,

shall Include, in England, the Superior Courts of Law at West-
minster, the Lord Chancellor, the Lords Justices, the Master of
the Rolls, or any Vice-Chancellor, the Judge of the Court of Ad-
miralty, the judge ordinary of the Court for Divorce and Matri-
monial Causes, and the judge of the Court of Probate; in Scot-
land, the High Court of Judiciary, and the Court of Sessions,
acting by either of its divisions; in Ireland, the Superior Courts
of Law at Dublin, the Master of the Rolls, and the judge of the
Admiralty Court; and in any other part of Her Majesty's do-
minions, the Superior Courts of Law or Equity therein; and in a
foreign country or state, any superior court or courts which shall
be set forth in any such convention between Her Majesty and the
Government of such foreign country or state.

9. NATURALIZATION ACT, 1870.

33 Vict. cap. 14 (Imp.).

An Act to amend the Law relating to the legal condition of

Aliens and British Subjects.

[12th May, 1870.]
Whereas it is expedient to amend the law relating to the
legal condition of aliens and British subjects:

Be it 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:

1. This Act may be cited for all purposes as " The Nat-
uralization Act, 1870."

Status of Aliens in the United Kingdom.

2. Real and personal property of every description may be
taken, acquired, held, and disposed of by an alien in the
same manner in all respects as by a natural-born British
subject; and a title to real and personal property of every
description may be derived through, from, or in succession to
an alien, in the same manner in all respects as through, from,
or in succession to a natural-born British subject: Provided, —

(1) That this section shall not confer any right on an

alien to hold real property situate out of the
United Kingdom, and shall not qualify an alien for
any office or for any municipal, parliamentary, or
other franchise:

(2) That this section shall not entitle an alien to any

right or privilege as a British subject, except such
rights and privileges in respect of property as are
hereby expressly given to him:

NATURALIZATION ACT, 1870. 1005

(3) That this section shall not affect any estate or in-
terest in real or personal property to which any
person has or may become entitled, either medi-
ately or immediately, in possession or expectancy,
in pursuance of any disposition made before the
passing of this Act, or in pursuance of any devo-
lution by law on the death of any person dying
before the passing of this Act,

3. Where Her Majesty has entered into a convention with
any foreign state to the effect that the subjects or citizens
of that state who have been naturalized as British subjects
may divest themselves of their status as such subjects, it shall
be lawful for Her Majesty, by Order in Council, to declare
that such convention has been entered into by Her Majesty;
and from and after the date of such Order in Council, any
person being originally a subject or citizen of the state referred
to in such Order, who has been naturalized as a British subject,
may, within such limit of time as may be provided in the con-
vention, make a declaration of alienage, and from and after the
date of his so making such declaration such person shall be
regarded as an alien, and as a subject of the state to which he
originally belonged as aforesaid.

A declaration of alienage may be made as follows; that is
to say, — If the declarant be in the United Kingdom in the
presence of any justice of the peace, if elsewhere in Her
Majesty's dominions in the presence of any judge of any court
of civil or criminal jurisdiction, of any justice of the peace, or
of any other officer for the time being authorised by law in
the place in which the declarant is to administer an oath for
any judicial or other legal purpose. If out of Her Majesty's
dominions in the presence of any officer in the diplomatic or
consular service of Her Majesty.

4. Any person who by reason of his having been born
within the dominions of Her Majesty is a natural-born
subject, but who also at the time of his birth became under
the law of any foreign state a subject of such state, and is
still such subject,^ may, if of full age and not under any
disability, make a declaration of alienage in manner aforesaid,
and from and after the making of such declaration of alienage
such person shall cease to be a British subject. Any person
who is born out of Her Majesty's dominions of a father being
a British subject may, if of full age, and not under any dis-
ability, make a declaration of alienage in manner aforesaid,
and from and after the making of such declaration shall cease
to be a British subject.

1006 CANADIAN CONSTITUTION: APPENDIX B.

5. From and after the passing of this Act, an alien shall
not be entitled to be tried by a jury de medietate linguae,
but shall be triable in the same manner as if he were a
natural-born subject.

Expatriation.

6. Any British subject who has at any time before, or
may at any time after the passing of this Act, when in any
foreign state and not under any disability, voluntarily become
naturalized in such state, shall from and after the time of his
so having become naturalized in such foreign state, be deemed
to have ceased to be a British subject and be regarded as an
alien; Provided, —

(1) That where any British subject has before the pass-

ing of this Act voluntarily become naturalized in a
foreign state and yet is desirous of remaining a
British subject, he may, at any time within two
years after the passing of this Act, make a declara-
tion that he is desirous of remaining a British
subject, and upon such declaration hereinafter re-
ferred to as a declaration of British nationality
being made, and upon his taking the oath of alle-
giance, the declarant shall be deemed to be and to
have been continually a British subject; with this
qualification, that he shall not, when within the
limits of the foreign state in which he has been
naturalized, be deemed to be a British subject,
unless he has ceased to be a subject of that state
in pursuance of the laws thereof, or in pursuance
of a treaty to that effect:

(2) A declaration of British nationality may be made, and

the oath of allegiance be taken as follows; that is
to say, — if the declarant be in the United Kingdom
in the presence of a justice of the peace; if else-
where in Her Majesty's dominions in the presence
of any judge of any court of civil or criminal juris-
diction, of any justice of the peace, or of any other
officer for the time being authorised by law in the
place in which the declarant is to administer an
oath for any judicial or other legal purpose. If out
of Her Majesty's dominions in the presence of any
officer in the diplomatic or consular service of Her
Majesty.
Naturalization and resumption of British Nationality.

7. An alien who, within such limited time before making
the application hereinafter mentioned as may be allowed by

NATURALIZATION ACT^ 1870. 1007

one of Her Majesty's Principal Secretaries of State, either by-
general order or on any special occasion, has resided in the
United Kingdom for a term of not less than five years, or has
been in the service of the Crown for a term of not less than
five years, and intends, when naturalized, either to reside in
the United Kingdom, or to serve under the Crown, may
apply to one of Her Majesty's Principal Secretaries of State
for a certificate of naturalization.

The applicant shall adduce in support of his application
such evidence of his residence or service, and intention to
reside or serve, as such Secretary of State may require. The
said Secretary of State, if satisfied with the evidence adduced,
shall take the case of the applicant into consideration, and
may, with or without assigning any reason, give or withhold
a certificate as he thinks most conducive to the public good,
and no appeal shall lie from his decision, but such certificate
shall not take effect until the applicant has taken the oath
of allegiance.

An alien to whom a certificate of naturalization is granted
shall in the United Kingdom be entitled to all political and
other rights, powers, and privileges, and be subject to all
obligations, to which a natural-born British subject is entitled
or subject in the United Kingdom, with this qualification,
that he shall not, when within the limits of the foreign state
of which he was a subject previously to obtaining his certi-
ficate of naturalization, be deemed to be a British subject
unless he has ceased to be a subject of that state in pursu-
ance of the laws thereof, or in pursuance of a treaty to that
effect.

The said Secretary of State may in manner aforesaid grant
a special certificate of naturalization to any person with
respect to whose nationality as a British subject a doubt
exists, and he may specify in such certificate that the grant
thereof is made for the purpose of quieting doubts as to the
right of such person to be a British subject, and the grant
of such special certificate shall not be deemed to be any admis-
sion that the person to whom it was granted was not pre-
viously a British subject.

An alien who has been naturalized previously to the passing
of this Act may apply to the Secretary of State for a certi-
ficate of naturalization under this Act, and it shall be lawful
for the said Secretary of State to grant such certificate to
such naturalized alien upon the same terms and subject to
the same conditions in and upon which such certificate might
have been granted if such alien had not been previously
naturalized in the United Kingdom.

1008 CANADIAN constitution: appendix b.

8. A natural-born British subject who has become an alien
in pursuance of this Act, and is in this Act referred to as a
statutory alien, may, on performing the same conditions and
adducing the same evidence as is required in the case of an
alien applying for a certificate of nationality, apply to one of
Her Majesty's PrincippJ Secretaries of State for a certificate
hereinafter referred to as a certificate of re-admission to
British nationality, re-admitting him to the status of a British
subject. The said Secretary of State shall have the same
discretion as to the giving or withholding of the certificate as
in the case of a certificate of naturalization, and an oath of
allegiance shall in like manner be required previously to the
issuing of the certificate.

A statutory alien to whom a certificate of re-admission to
British nationality has been granted shall, from the date of
the certificate of re-admission, but not in respect of any
previous transaction, resume his position as a British subject;
with this qualification, that within the limits of the foreign
state of which he became a subject he shall not be deemed to
be a British subject unless he has ceased to be a subject of
that foreign state according to the laws thereof, or in pursuance
of a treaty to that effect.

The jurisdiction by this Act conferred on the Secretary of
State in the United Kingdom in respect of the grant of a
certificate or re-admission to British nationality, in the case of
any statutory alien being in any British possession, may be
exercised by the governor of such possession; and residence
in such possession shall, in the case of such person, be deemed
equivalent to residence in the United Kingdom.

9. The oath in this Act referred to as the oath of alle-
giance shall be in the form following; that is to say,

" I do swear that I will be faithful and

bear true allegiance to Her Majesty Queen Victoria, her heirs
and successors, according to law. So help me GOD."

National status of married women and infant children.

10. The following enactments shall be made with respect
to the national status of women and children:

(1) A married woman shall be deemed to be a subject of

the state of which her husband is for the time being
a subject:

(2) A widow being a natural-born British subject, who

has become an alien by or in consequence of her
marriage, shall be deemed to be a statutory alien.

NATURALIZATION ACT^ 1870. 1009

and may as such at any time during widowhood
obtain a certificate of re-admission to British na-
tionality in manner provided by this Act:

(3) Where the father being a British subject, or the

mother being a British subject and a widow, be-
comes an alien in pursuance of this Act, every
child of such father or mother who during infancy
has become resident in the country where the
father or mother is naturalized, and has, according
to the laws of such country, become naturalized
therein, shall be deemed to be a subject of the state
of which the father or mother has become a subject,
and not a British subject:

(4) Where the father, or the mother being a widow, has

obtained a certificate of re-admission to British na-
tionality, every child of such father or mother who
during infancy has become resident in the British
dominions with such father or mother, shall be
deemed to have resumed the position of a British
subject to all intents:

(5) Where the father, or mother being a widow, has

obtained a certificate of naturalization in the United
Kingdom, every child of such father or mother who
during infancy has become resident with such father
or mother in any part of the United Kingdom, shall
be deemed to be a naturalized British subject.

Supplemental Provisions.
11. One of Her Majesty's Principal Secretaries of State may
by regulation provide for the following matters: —

(1) The form and registration of declarations of British

nationality:

(2) The form and registration of certificates of naturaliza-

tion in the United Kingdom:

(3) The form and registration of certificates of re-admis-

sion to British nationality:

(4) The form and registration of declarations of alienage:

(5) The registration by officers in the diplomatic or con-

sular service of Her Majesty of the births and
deaths of British subjects who may be born or die
out of Her Majesty's dominions, and of the mar-
riages of persons married at any of Her Majesty's
embassies or legations:

CAN. CON. — 64

1010 CANADIAN CONSTITUTION: APPENDIX B.

(6) The transmission to the United Kingdom for the

purpose of registration or safe keeping, or of being
produced as evidence of any declarations or certi-
ficates made in pursuance of this Act out of the
United Kingdom, or of any copies of such declara-
tions or certificates, also of copies of entries con-
tained in any register kept out of the United King-
dom in pursuance of or for the purpose of carrying
into effect the provisions of this Act:

(7) With the consent of the Treasury the imposition and

application of fees in respect of any registration

authorised to be made by this Act, and in respect

of the making any declaration or the grant of any

certificate authorised to be made or granted by this

Act.

The said Secretary of State, by a further regulation, may

repeal, alter, or add to any regulation previously made by him

in pursuance of this section.

Any regulation made by the said Secretary of State in
pursuance of this section shall be deemed to be within the
powers conferred by this Act, and shall be of the same force
as if it had been enacted in this Act, but shall not go far as
respects the imposition of fees be in force in any British pos-
session, and shall not, so far as respects any other matter, be
in force in any British possession in which any Act or ordin-
ance to the contrary of or inconsistent with any such direction
may for the time being be in force.

12. The following regulations shall be made with respect to
evidence under this Act: —

(1) Any declaration authorised to be made under this Act

may be proved in any legal proceeding by the pro-
duction of the original declaration, or of any copy
thereof certified to be a true copy of one of Her
Majesty's Principal Secretaries of State, or by any
person authorised by regulations of one of Her
Majesty's Principal Secretaries of State to give cer-
tified copies of such declaration, and the production
of such declaration or copy shall be evidence of the
person therein named as declarant having made the
same at the date in the said declaration mentioned:

(2) A certificate of naturalization may be proved in any

legal proceeding by the production of the original
certificate, or of any copy thereof certified to be a
true copy by one of Her Majesty's Principal Secre-
taries of State, or by any person authorised by regu-
lations of one of Her Majesty's Principal Secretaries
of State to give certified copies of such certificate:

NATUEALKIAXION ACT, 1870. 1011

(3) A certificate of re-admisstwi to British nationality

may be proved in any legal proceeding by the pro-
duction of the original certificate, or of any copy
thereof certified to be a true copy by one of Her
Majesty's Principal Secretaries of State, or by any
person authorised by regulations of one of Her
Majesty's Principal Secretaries of State to give cer-
tified copies of such certificate:

(4) Entries in any register authorised to be made in pur-

suance of this Act shall be proved by such copies
and certified in such manner as may be directed by
one of Her Majesty's Principal Secretaries of State,
and the copies of such entries shall be evidence of
any matters by this Act or by any regulation of the
said Secretary of State authorised to be inserted in
the register:

(5) The Documentary Evidence Act, 1868, shall apply to

any regulation made by a Secretary of State, in
pursuance of or for the purpose of carrying into
effect any of the provisions of this Act.
Miscellaneous.

13. Nothing in this Act contained shall affect the grant of
letters of denization by Her Majesty.

14. Nothing in this Act contained shall qualify an alien to
be the owner of a British ship.

15. Where any British subject has in pursuance of this Act
become an alien, he shall not thereby be discharged from any
liability in respect of any acts done before the date of his so
becoming an alien.

16. All laws, statutes, and ordinances which may be duly
made by the legislature of any British possession for impart-
ing to any person the privileges, or any of the privileges, of
naturalization, to be enjoyed by such person within the limits
of such possession, shall within such limits have the autho-
rity of law, but shall be subject to be confirmed or disallowed
by Her Majesty in the same manner, and subject to the same
rules in and subject to which Her Majesty has power to con-
firm or disallow any other laws, statutes, or ordinances in that
possession.

17. In this Act, if not inconsistent with the context or
subject-matter thereof, —

" Disability " shall mean the status of being an infant,

lunatic, idiot, or married woman:
" British possession " shall mean any colony, plantation,

island, territory, or settlement within Her Majesty's

1012 CANADIAN CONSTITUTION: APPENDIX B.

dominions, and not within the United Kingdom, and
all territories and places under one legislature are
deemed to be one British possession for the purposes
of this Act:

" The Governor of any British possession " shall include
any person exercising the chief authority in such
possession:

" Officer in the Diplomatic Service of Her Majesty " shall
mean any Ambassador, Minister or Charge d' Affaires,
or Secretary of Legation, or any person appointed by
such Ambassador, Minister, Charge d'Affaires, or Sec-
retary of Legation to execute any duties imposed by
this Act on an officer in the Diplomatic Service of Her
Majesty :

" Officer in the Consular Service of Her Majesty " shall
mean and include Consul-General, Consul, Vice-Consul,
and Consular Agent, and any person for the time being
discharging the duties of Consul-General, Consul, Vice-
Consul, and Consular Agent.

SCHEDULE.
Note. — Reference is made to the repeal of the " whole Act " where
portions have been repealed before, in order to preclude
henceforth the necessity of looking back to previous Acts.
This Schedule, so far as respects Acts prior to the reign of George
the Second, other than Acts of the Irish Parliament, refers
to the edition prepared under the direction of the Record
Commission, intituled " The Statutes of the Realm ; printed
" by Command of His Majesty King George the Third, in pur-
" suance of an Address of the House of Commons of Great
" Britain. From original Records and authentic Manu-
" scripts."

PART I.
Acts wholly repealed, other than Acts of the Irish
Parliament.
Date. Title.

7 Jas. 1, c. 2 An Act that all such as are to be naturalized

or restored in blood shall first receive the
sacrament of the Lord's Supper, and the
oath of allegiance, and the oath of supre-
macy.

11 Will. 3, c. 6 (a)... An Act to enable His Majesty's natural-born
subjects to inherit the estate of their ances-
tors, either lineal or collateral, notwithstand-
ing their father or mother were aliens.

13 Geo. 2, c. 7 An Act for naturalizing such foreign Protest-
ants and others therein mentioned, as are
settled or shall settle in any of His Majesty's
colonies in America.

NATUBALIZATION ACT^ 1870. 1013

Date. Title.

20 Geo. 2, e. 44 An Act to extend the provisions of an Act made

in the thirteenth year of His present Majesty's
reign, intituled *" An Act for naturalizing
" foreign Protestants and others therein men-
" tioned, as are settled or shall settle in any
" of His Majesty's colonies 'in America, to
" other foreign Protestants who conscien-
" tiously scruple the taking of an oath."

13 Geo. 3, c. 25 An Act to explain two Acts of Parliament, one

of the thirteenth year of the reign of His
late Majesty, " for naturalizing such foreign
" Protestants and others as are settled or
'• shall settle in any of His Majesty's colonies
" in America," and the other of the second
year of the reign of His present Majesty,
" for naturalizing such foreign Protestants as
" have served or shall serve as officers or
" soldiers in His Majesty's Royal American
" regiment, or as engineers in America."

14 Geo. 3, c. 84 An Act to prevent certain inconveniences that

may happen by bills of naturalization.

16 Geo. 3, c. 52 An Act to declare His Majesty's natural-boru

subjects inheritable to the estates of their
ancestors, whether lineal or collateral, in that
part of Great Britain called Scotland, not-;
withstanding their father or mother were
aliens.

6 Geo. 4, c. 67 An Act to alter and amend an Act passed in

the seventh year of the reign of His Majesty
King James the First, intituled " An Act that
" all such as are to be naturalized or rc-
" stored in blood shall first receive the sacra-
" ment of the Lord's Supper and the oath of
" allegiance and the oath of supremacy."

7 & 8 Vict. c. 66. . . . An Act to amend the laws relating to aliens.
10 & 11 Vict. c. 83 An Act for the naturalization of aliens.

(a) 11 & 12 Wm. 3 (Ruff.).

PART II.
Acts of the Irish Parliament wholly repealed.
Date. Title.

14 «& 15 Chas. 2, c. 13. . An Act for encouraging Protestant strangers
and other to inhabit and plant in the King-
dom of Ireland.

2 Anne, c. 14 An Act for naturalizing of all Protestant

strangers in this kingdom.

19 & 20 Geo. 3, c. 29 . . . An Act for naturalizing such foreign merchants,
traders, artificers, artizans, manufacturers,
workmen, seamen, farmers, and others as
shall settle in this kingdom.

23 & 24 Geo. 3, c. 38 . . . An Act for extending the provisions of an Act
passed in this kingdom in the nineteenth and
twentieth years of His Majesty's reign, in-
tituled " An Act for naturalizing such foreign
" merchants, traders, artificers, artizans, manu-
j " facturers, workmen, seamen, farmers, and
" others as shall settle in this kingdom."

36 Geo. 3, c. 48 An Act to explain and amend an Act, intituled

" An Act for naturalizing such foreign mer-
" chants, traders, artificers, artizans, manu-
" facturers, workmen, seamen, farmers, and
" others who shall settle in this kingdom."

1014 CANADIAN CONSTITUTION: APPENDIX B.

PART III.
Acts partially repealed.

Extent of repeal.

4 Geo. 1, c. 9 An Act for reviving, con- So far as it makes

(Act of Irish Par- tinning, and amending perpetual the Act
liament.) several statutes made of 2 Anne, c. 14.

in this kingdom here-
tofore temporary.

6 Geo. 4, c. 50 An Act for consolidating The whole of sect. 47.

and amending the laws
relative to Jurors and
Juries.

3 & 4 Will. 4, c. 91 An Act consolidating and The whole of sect. 37.

amending the laws re-
lating to Jurors and
Juries in Ireland.

Repeal of Acts mentioned in Schedule.

18. The several Acts set forth in the first and second parts
of the schedule annexed hereto shall be wholly repealed, and
the Acts set forth in the third part of the said schedule shall be
repealed to the extent therein mentioned ; provided that the
repeal enacted in this Act shall not affect: —

(1) Any right acquired or thing done before the passing

of this Act:

(2) Any liability accruing before the passing of this Act:

(3) Any penalty, forfeiture, or other punishment incurred

or to be incurred in respect of any offence committed
before the passing of this Act:

(4) The institution of any investigation or legal proceed-

ing or any other remedy for ascertaining or en-
forcing any such liability, penalty, forfeiture, or
punishment as aforesaid.

10. BRITISH NATIONALITY AND STATUS OF ALIENS ACT,

1914.
4 & 5 Geo. V. cap. 17 (Imp.).

An Act to consolidate and amend the Enactments relating to
British Nationality and the Status of Aliens.

[7th August, 19U.^
Be it enacted by the King's most Excellent Majesty, by and
with the advice and consent of the Lords Spiritual and Temporal,
and Commons, in this present Parliament assembled, and by
the authority of the same, as follows: —

BKITISH NATIONAIvITY AND STATUS OF ALIENS. 1015

Part I.
Natiiral-1)orn British Subjects.
1, — (1) The following persons shall be deemed to be natural-
born British subjects, namely: —

(a) Any person born within His Majesty's dominions and

allegiance; and
(&) Any person born out of His Majesty's dominions,
whose father was a British subject at the time of
that person's birth and either was born within His
Majesty's allegiance or was a person to whom a
certificate of naturalization had been granted; and
(c) Any person born on board a British ship whether in
foreign territorial waters or not:
Provided that the child of a British subject, whether that
child was born before or after the passing of this Act, shall be
deemed to have been born within His Majesty's allegiance if born
in a place where by treaty, capitulation, grant, usage, sufferance,
or other lawful means, His Majesty exercises jurisdiction over
British subjects.

(2) A person born on board a foreign ship shall not be
deemed to be a British subject by reason only that the ship was
in British territorial waters at the time of his birth.

(3) Nothing in this section shall, except as otherwise ex-
pressly provided, affect the status of any person born before
the commencement of this Act.

Part II.

Naturalization of Aliens.
2. — (1) The Secretary of State may grant a certificate of
naturalization to an alien who makes an application for the
purpose, and satisfies the Secretary of State: —

(a) that he has either resided in His Majesty's dominions
for a period of not less than five years in the
manner required by this section, or been in the ser-
vice of the Crown for not less than five years within
the last eight years before the application; and
(ft) that he is of good character and has an adequate

knowledge of the English language; and

reside in His Majesty's dominions or to enter or

continue in the service of the Crown.

(2) The residence required by this section is residence in

the United Kingdom for not less than one year immediately

preceding the application, and previous residence, either in the

1016 CANADIAN CONSTITUTION : APPENDIX B.

United Kingdom or in some other part of His Majesty's do-
minions, for a period of four years within the last eight years
before the application.

(3) The grant of a certificate of naturalization to 'any such
alien shall be in the absolute discretion of the Secretary of State,
and he may, with or without assigning any reason, give or with-
hold the certificate as he thinks most conducive to the public
good, and no appeal shall lie from his decision.

(4) A certificate of naturalization shall not take effect until
the applicant has taken the oath of allegiance.

(5) In the case of a woman who was a British subject
previously to her marriage to an alien, and whose husband has
died or whose marriage has been dissolved, the requirements of
this section as to residence shall not apply and the Secretary of
State may in any other special case, if he thinks fit, grant a
certificate of naturalization, although the four years' residence
or five years' service has not been within the last eight years
before the application.

3. — (1) A person to whom a certificate of naturalization is
granted by a Secretary of State shall, subject to the provisions
of this Act, be entitled to all political and other rights, powers
and privileges, and be subject to all obligations, duties and
liabilities, to which a natural-born British subject is entitled or
subject, and, as from the date of his naturalization, have to
all intents and purposes the status of a natural-born British
subject.

(2) Section three of the Act of Settlement (which disqualifies
naturalized aliens from holding certain offices) shall have effect
as if the words " naturalized or " were omitted therefrom.

4. The Secretary of State may in his absolute discretion,
in such cases as he thinks fit, grant a special certificate of
naturalization to any person with respect to whose nationality
as a British subject a doubt exists, and he may specify in the
certificate that the grant thereof is made for the purpose of
quieting doubts as to the right of the person to be a British
subject, and the grant of such a special certificate shall not
be deemed to be any admission that the person to whom it was
granted was not previously a British subject.

5. — (1) Where an alien obtains a certificate of naturalization,
the Secretary of State may, if he thinks fit, on the application
of that alien, include in the certificate the name of any child
of the alien born before the date of the certificate and being
a minor, and that child shall thereupon, if not already a
British subject, become a British subject; but any such child
may, within one year after attaining his majority, make a

BRITISH NATIQNAUTY AND STATUS OF ALIENS. 1017

declaration of alienage, and shall thereupon cease to be a British
subject.

(2) The Secretary of State may, in his absolute discretion
in any special case in which he thinks fit, grant a certificate of
naturalization to any minor, although the conditions required
by this Act have not been complied with.

(3) Except as provided by this section, a certificate of
naturalization shall not be granted to any person under dis-
ability.

6. An alien who has been naturalized before the passing of
this Act may apply to the Secretary of State for a certificate
of naturalization under this Act, and the Secretary of State may
grant to him a certificate on such terms and conditions as he
may think fit.

7. — (1) Where it appears to the Secretary of State that a
certificate of naturalization granted by him has been obtained
by false representations or fraud, the Secretary of State may by
order revoke the certificate, and the order of revocation shall
have effect from such date as the Secretary of State may direct.

(2) Where the Secretary of State revokes a certificate of
naturalization, he may order the certificate to be given up and
cancelled, and any person refusing or neglecting to give up
the certificate shall be liable on summary conviction to a fine not
exceeding one hundred pounds.

8. — (1) The Government of any British Possession shall
have the same power to grant a certificate of naturalization as
the Secretary of State has under this Act, and the provisions
of this Act as to the grant and revocation of such a certificate
shall apply accordingly, with the substitution of the Governnient
of the Possession for the Secretary of State, and the Possession
for the United Kingdom, and also, in a Possession where any
language is recognised as on an equality with the English
language, with the substitution of the English language or that
language for the English language:

Provided that, in any British Possession other than British
India and a Dominion specified in the First Schedule to this
Act, the powers of the Government of the Possession under
this section shall be exercised by the Governor or a person
acting under his authority, but shall be subject in each case to
the approval of the Secretary of State, and any certificate pro-
posed to be granted shall be submitted to him for his approval.

(2) Any certificate of naturalization granted under this
section shall have the same effect as a certificate of naturalization
granted by the Secretary of State under this Act.

1018 CANADIAN constitution: appendix b.

9. — (1) This Part of this Act shall not, nor shall any cer-
tificate of naturalization granted thereunder, have effect within
any of the Dominions specified in the First Schedule to this
Act, unless the Legislature of that Dominion adopts this Part
of this Act.

(2) Where the I^egislature of any such Dominion has
adopted this Part of this Act, the Government of the Dominion
shall have the like powers to make regulations with respect to
certificates of naturalization and to oaths of allegiance as are
conferred by this Act on the Secretary of State.

(3) The Legislature of any such Dominion which adopts
this Part of this Act may provide how and by what Department
of the Government the powers conferred by this Part of
this Act on the Government of a British Possession are to be
exercised.

(4) The Legislature of any such Dominion may at any time
rescind the adoption of this Part of this Act, provided that no
such rescission shall prejudicially affect any legal rights existing
at the time of such rescission.

Part III.
General.

National Status of Married Women and Infant Children.

10. The wife of a British subject shall be deemed to be a
British subject, and the wife of an alien shall be deemed to be
an alien: Provided that where a man ceases during the con-
tinuance of his marriage to be a British subject it shall be
lawful for his wife to make a declaration that she desires to
retain British nationality, and thereupon she shall be deemed to
remain a British subject.

11. A woman who, having been a British subject, has by,
or in consequence of, her marriage become an alien, shall not, by
reason only of the death of her husband, or the dissolution of
her marriage, cease to be an alien, and a woman who, having
been an alien, has by, or in consequence of, her marriage become
a British subject, shall not, by reason only of the death of her
husband or the dissolution of her marriage, cease to be a British
subject.

12. — (1) Where a person being a British subject ceases to
be a British subject, whether by declaration of alienage or
otherwise, every child of that person, being a minor, shall
thereupon cease to be a British subject, unless such child, on
that person ceasing to be a British subject, does not become by
the law of any otner country naturalized in that country:

BRITISH NATIONAIvITY AND STATUS OF ALIENS. 1019

Provided that, where a widow who is a British subject
marries an alien, any child of hers by her former husband shall
not, by reason only of her marriage, cease to be a British
subject, whether he is residing outside His Majesty's dominions
or not.

(2) Any child who has so ceased to be a British subject
may, within one year after attaining his majority, make a
declaration that he wishes to resume British nationality, and
shall thereupon again become a British subject.

Loss of British Nationality.

13. A British subject who, when in any foreign state and
not under disability, by obtaining a certificate of naturalization,
or by any other voluntary and formal act, becomes naturalized
therein, shall thenceforth be deemed to have ceased to be a
British subject.

14. — (1) Any person who by reason of his having been born
within His Majesty's dominions and allegiance or on board a
British ship is a natural-born British subject, but who at his
birth or during his minority became under the law of any
foreign state a subject also of that state, and is still such a
subject, may, if of full age and not under disability, make a
declaration of alienage, and on making the declaration shall
cease to be a British subject.

(2) Any person who though born out of His Majesty's do-
minions is a natural-born British subject may, if of full age
and not under disability, make a declaration of alienage, and on
making the declaration shall cease to be a British subject.

15. Where His Majesty has entered into a convention with
any foreign state to the effect that the subjects or citizens of that
state to whom certificates of naturalization have been granted
may divest themselves of their status as such subjects, it shall
be lawful for His Majesty, by Order in Council, to declare that
the convention has been entered into by His Majesty; and from
and after the date of the Order any person having been originally
a subject or citizen of the state therein referred to, who has been
naturalized as a British subject, may, within the limit of time
provided in the convention, make a declaration of alienage, and
on his making the declaration he shall be regarded as an alien
and as a subject of the state to which he originally belonged as
aforesaid.

16. Where any British subject ceases to be a British sub-
ject, he shall not thereby be discharged from any obligation,
duty or liability in respect of any act done before he ceased to
be a British subject.

102G CANADIAN CONSTITUTION : APPENDIX B.

Status of Aliens.

17. Real and personal property of every description may be
taken, acquired, held and disposed of by an alien in the same
manner in all respects as by a natural-born British subject ; and
a title to real and personal property of every description may be
derived through, from or in succession to an alien in the same
manner in all respects as through, from or in succession to a
natural-born British subject:

Provided that this section shall not operate so as to —

(1) Confer any right on an alien to hold real property

situate out of the United Kingdom; or

(2) Qualify an alien for any office or for any municipal,

parliamentary, or other franchise; or

(3) Qualify an alien to be the owner of a British ship; or

(4) Entitle an alien to any right or privilege as a British

subject, except such rights and privileges in respect
of property as are hereby expressly given to him; or

(5) Affect any estate or interest in real or personal pro-

perty to which any person has or may become en-
titled, either mediately or immediately, in posses-
sion or expectancy, in pursuance of any disposition
made before the twelfth day of May eighteen hun-
dred and seventy, or in pursuance of any devolution
by law on the death of any person dying before
that day.

18. An alien shall be triable in the same manner as if he
were a natural-born British subject.

Procedure and Evidence.
19. — (1) The Secretary of State may make regulations gen-
erally for carrying into effect the objects of this Act, and in
particular with respect to the following matters: —

(a) The form and registration of certificates of naturaliza-
tion granted by the Secretary of State:

(6) The form and registration of declarations of alienage

and declarations of resumption or retention of Brit-
ish nationality:

sular service of His Majesty of the births and deaths
of British subjects born or dying out of His Ma-
jesty's dominions:

(d) The time within which the oath of allegiance is to be

taken after the grant of a certificate of naturaliza-
tion:

BRITISH NATIONAUTY AND STATUS OF ALIENS. 1021

(e) The persons by whom the oath of allegiance may be
administered, and the persons before whom declara-
tions of alienage and declarations of resumption of
British nationality may be made:

(/) Whether or not oaths of allegiance are to be sub-
scribed as well as taken, and the form in which the
taking and subscription are to be attested:

(g) The registration of oaths of allegiance:

(h) The persons by whom certified copies of oaths of
allegiance may be given; and the proof in any legal
proceeding of any such oaths:

(i) The transmission to the United Kingdom, for the pur-
pose of registration or safe keeping or of being
produced as evidence, of any declarations, certifi-
cates or oaths, made, granted or taken out of the
United Kingdom in pursuance of this Act or of any
Act hereby repealed, or of any copies thereof, also
of copies of entries contained in any register kept
out of the United Kingdom in pursuance of this
Act or any Act hereby repealed:

(;) With the consent of the Treasury, the imposition and
application of fees in respect of any registration
authorised to be made by this Act or any Act hereby
repealed, and in respect of the making of any
declaration or the grant of any certificate authorised
to be made or granted by this Act or any Act hereby
repealed, and in respect of the administration or
registration of any oath: Provided that in the case
of a woman who was a British subject previously to
her marriage to an alien, and whose husband has
died or whose marriage has been dissolved, the fee
for the grant of a certificate shall not exceed five
shillings.

(2) Any regulation made by the Secretary of State in pur-
suance of this Act shall be of the same force as if it had been
enacted therein, but shall not, so far as respects the imposition
of fees, be in force in any British Possession, and shall not, so
far as respects any other matter, be in force in any British
Possession in which any Act or ordinance, or, in the case of
a Dominion specified in the First Schedule to this Act, any
regulation made by the Government of the Dominion under
Part II. of this Act, to the contrary of, or inconsistent with,
any such regulation may for the time being be in force.

(3) Any regulations made by the Secretary of State under
any Act hereby repealed shall continue in force and be deemed
to have been made under this Act.

1022 CANADIAN CONSTITUTION: APPENDIX B.

20. Any declaration made under this Act or under any Act
hereby repealed may be proved in any legal proceeding by the
production of the original declaration or of any copy thereof
certified to be a true copy by the Secretary of State, or by any
person authorised by him in that behalf, and the production of
the declaration or copy shall be evidence of the person therein
named as declarant having made the declaration at the date
therein mentioned.

21. A certificate of naturalization may be proved in any legal
proceeding by the production of the original certificate or of
any copy thereof certified to be a true copy of the Secretary of
State, or by any person authorised by him in that behalf.

22. Entries in any register made in pursuance of this Act or
under any Act hereby repealed may be proved by such copies
and certified in such manner as may be directed by the Secretary
of State, and the copies of any such entries shall be evidence of
any matters, by this Act or by any Act hereby repealed or by
any regulation of the Secretary of State, authorised to be in-
serted in the register.

23. If any person for any of the purposes of this Act know-
ingly makes any false representation or any statement false in a
material particular, he shall, in the United Kingdom, be liable on
summary conviction in respect of each offence to imprisonment
with or without hard labour for any term not exceeding three
months.

24. The oath of allegiance shall be in the form set out in
the Second Schedule to this Act.

Supplemental.

25. Nothing in this Act shall affect the grant of letters of
denization by His Majesty.

26. — (1) Nothing in this Act shall take away or abridge any
power vested in, or exercisable by, the Legislature or Govern-
ment of any British Possession, or affect the operation of any
law at present in force which has been passed in exercise of
such a power, or prevent any such Legislature or Government
from treating differently different classes of British subjects.

(2) All laws, statutes and ordinances made by the Legislature
of a British Possession for imparting to any person any of the
privileges of naturalization to be enjoyed by him within the
limits of that Possession shall, within those limits, have the
authority of law.

(3) Where any parts of His Majesty's Dominions are under
both a central and a local legislature, the expression " British
Possession " shall, for the purposes of this section, include both

BRITISH NATIONALITY AND STATUS OF ALIENS. 1033

all parts under the central legislature and each part under a
local legislature: Provided that nothing in this provision shall
be construed as validating any law, statute or ordinance with
respect to naturalization made by any such local legislature in
any case where the central legislature possesses exclusive legis-
lative authority with respect to naturalization.

27. — (1) In this Act, unless the context otherwise requires, —
The expression " British subject " means a person who is

a natural-born British subject, or a person to whom a

certificate of naturalization has been granted:
The expression "alien" means a person who is not a

British subject:
The expression " certificate of naturalization " means a

certificate of naturalization granted under this Act or

under any Act repealed by this or any other Act:
The expression " disability " means the status of being a

married woman, or a minor, lunatic, or idiot:
The expression " territorial waters " includes any port,

harbour, or dock.

(2) Where in pursuance of this Act the name of a child is
included in a certificate of naturalization granted to his parent,
such child shall, for the purposes of this Act, be deemed to be a
person to whom a certificate of naturalization has been granted.

28. — (1) The enactments mentioned in the Third Schedule
to this Act are hereby repealed to the extent specified in the
third column of that schedule.

(2) This Act may be cited as the British Nationality and
Status of Aliens Act, 1914.

(3) This Act shall come into operation on the first day of
January nineteen hundred and fifteen.

SCHEDULES.

FIRST SCHEDULE.
List of Dominions.
The Dominion of Canada.

The Commonwealth of Australia (including for the purposes
of this Act the territory of Papua and Norfolk Island).
The Dominion of New Zealand.
The Union of South Africa.
Newfoundland.

1024

CANADIAN CONSTITUTION: APPENDIX B.

SECOND SCHEDULE.
Oath of Allegiance.
" I, A.B., swear by Almighty God that I will be faithful and
bear true allegiance to His Majesty, King George the Fifth, his
Heirs and Successors, according to law.

THIRD SCHEDULE.
Enactments Repealed.

Session and
Chapter.

25 Edw. 3,
Stat. 1.

42 Edw. 3,
c. 10.

12 & 13 Will.
8, c. 2.

7 Anne, c. 5.

4 Geo. 2, c. 21
13 Geo. 3, c. 21

33 & 34 Vict,
c. 14.

33 & 34 Vict,
c. 102.

58 & 59 Vict,
c. 43.

Title or Short Title.

Statute for those who are
born in parts beyond the

seas.

A statute made at West-
minster on the first day
of May in the forty-
second year of King
Edward III.

The Act of Settlement

The Foreign Protestants
(Naturalization) Act,
1708.

The British Nationality
Act, 1730.

The British Nationality
Act, 1772.

The Naturalization Act,
1870.

The Naturalization Oath
Act, 1870.

The Naturalization Act,
1895.

Extent of Repeal.

From " and in the right of
other children " to the
end of the statute.

The whole chapter.

In section three the words
" naturalized or."

The whole Act.

The whole Act.
The whole Act.
The whole Act.
The whole Act.
The whole Act.

11. THE EXTRADITION ACT, 1870.
33-34 Vict. cap. 52 (Imp.).
An Act for amending the Law relating to the Extradition of
Criminals.

[9th August, 1870.]

Whereas it is expedient to amend the law relating to the
surrender to foreign states of persons accused or convicted of the
commission of certain crimes within the jurisdiction of such

EXTRADITION ACT^ 1870. 1025

States, and to the trial of criminals surrendered by foreign states
to this country:

Preliminary.

1. This Act may be cited as " The Extradition Act, 1870."

2. Where an arrangement has been made with any foreign
state with respect to the surrender to such state of any fugitive
criminals. Her Majesty may, by Order in Council, direct that
this Act shall apply in the case of such foreign state.

Her Majesty may, by the same or any subsequent order,
limit the operation of the order, and restrict the same to fugitive
criminals who are in or suspected of being in the part of Her
Majesty's dominions specified in the order, and render the opera-
tion thereof subject to such conditions, exceptions, and qualifica-
tions as may be deemed expedient.

Every such order shall recite or embody the terms of the
arrangement, and shall not remain in force for any longer period
than the arrangement.

Every such order shall be laid before both Houses of Parlia-
ment within six weeks after it is made, or, if Parliament be
not then sitting, within six weeks after the then next meeting
of Parliament, and shall also be published in the London
Gazette.

3. The following restrictions shall be observed with respect
to the surrender of fugitive criminals: —

(1) A fugitive criminal shall not be surrendered if the

offence in respect of which his surrender is de-
manded is one of a political character, or if he
prove to the satisfaction of the police magistrate or
the court before whom he is brought on habeas,
corpus, or to the Secretary of State, that the requisi-
tion for his surrender has in fact been made with a.
view to try or punish him for an offence of a political
character:

(2) A fugitive criminal shall not be surrendered to a

foreign state unless provision is made by the law of
that state, or by arrangement, that the fugitive
criminal shall not, until he has been restored or
had an opportunity of returning to Her Majesty's
dominions, be detained or tried in that foreign
state for any offence committed prior to his.

CAN. CON. — 65

1026 CANADIAN constitution: appendix b.

surrender other than the extradition crime proved
by the facts on which the surrender is grounded:

(3) A fugitive criminal who has been accused of some

offence within English jurisdiction not being the
offence for which his surrender is asked, or is under-
going sentence under any conviction in the United
Kingdom, shall not be surrendered until after he
has been discharged, whether by acquittal or on ex-
piration of his sentence or otherwise:

(4) A fugitive criminal shall not be surrendered until the

expiration of fifteen days from the date of his being
committed to prison to await his surrender.

4. An Order in Council for applying this Act in the case of
any foreign state shall not be made unless the arrangement —

(1) provides for the determination of it by either party to

it after the expiration of a notice not exceeding one
year; and

(2) is in conformity with the provisions of this Act, and

in particular with the restrictions on the surrender
of fugitive criminals contained in this Act.

5. When an order applying this Act in the case of any foreign
state has been published in the London Gazette this Act (after
the date specified in the order, or if no date is specified, after the
date of the publication), shall, so long as the order remains in
force, but subject to the limitations, restrictions, conditions, ex-
ceptions, and qualifications, if any, contained in the order, apply
in the case of such foreign state. An Order in Council shall be
conclusive evidence that the arrangement therein referred to
complies with the requisitions of this Act, and that this Act
applies in the case of the foreign state mentioned in the order,
and the validity of such order shall not be questioned in any
legal proceedings whatever.

6. Where this Act applies in the case of any foreign state,
every fugitive criminal of that state who is in or suspected of
being in any part of Her Majesty's dominions, or that part
which is specified in the order applying this Act (as the case
may be), shall be liable to be apprehended and surrendered in
manner provided by this Act, whether the crime in respect of
which the surrender is sought was committed before or after
the date of the order, and whether there is or is not any con-
current jurisdiction in any court of Her Majesty's dominions
over that crime.

7. A requisition for the surrender of a fugitive criminal of
any foreign state, who is in or suspected of being in the United
Kingdom, shall be made to a Secretary of State by some person

EXTRADITION ACT, 1870. 1027

recognized by the Secretary of State as a diplomatic representa-
tive of that foreign state. A Secretary of State may, by order
under his hand and seal, signify to a police magistrate that such
requisition has been made, and require him to issue his warrant
for the apprehension of the fugitive criminal.

If the Secretary of State is of opinion that the offence is one
of a political character, he may, if he think fit, refuse to send
any such order, and may also at any time order a fugitive
criminal accused or convicted of such offence to be discharged
from custody.

8. A warrant for the apprehension of a fugitive criminal,
whether accused or convicted of crime, who is in or suspected
of being in the United Kingdom, may be issued —

1. by a police magistrate on the receipt of the said order

of the Secretary of State, and on such evidence as
would, in his opinion, justify the issue of the warrant
if the crime had been committed or the criminal con-
victed in England ; and

2. by a police magistrate or any justice of the peace in any

part of the United Kingdom, on such information or
complaint and such evidence or after such proceedings
as would, in the opinion of the person issuing the
warrant, justify the issue of a warrant if the crime
had been committed or the criminal convicted in that
part of the United Kingdom in which he exercises
jurisdiction.
Any person issuing a warrant under this section without an
order from a Secretary of State shall forthwith send a report
of the fact of such^ issue, together with the evidence and in-
formation or complaint, or certified copies thereof, to a Secretary
of State, who may, if he think fit, order the warrant to be can-
celled, and the person who has been apprehended on the warrant
to be discharged.

A fugitive criminal, when apprehended on a warrant issued
without the order of a Secretary of State, shall be brought before
some person having power to issue a warrant under this section,
who shall by warrant order him to be brought and the prisoner
shall accordingly be brought before a police magistrate.

A fugitive criminal apprehended on a warrant issued with-
out the order of a Secretary of State shall be discharged by
the police magistrate, unless the police magistrate, within such
reasonable time as, with reference to the circumstances of the
case, he may fix', receives from a Secretary of State an order
signifying that a requisition has been made for the surrender of
such criminal.

1028 CANADIAN CONSTITUTION: APPENDIX B.

9. When a fugitive criminal is brought before the police
magistrate, the police magistrate shall hear the case in the
same manner, and have the same jurisdiction and powers, as
near as may be, as if the prisoner were brought before him
charged with an indictable offence committed in England.

The police magistrate shall receive any evidence which may
be tendered to show that the crime of which the prisoner is
accused or alleged to have been convicted is an offence of a
political character or is not an extradition crime.

10. In the case of a fugitive criminal accused of an extra-
dition crime, if the foreign warrant authorising the arrest of
such criminal is duly authenticated, and such evidence is pro-
duced as (subject to the provisions of this Act) would, accord-
ing to the law of England, justify the committal for trial of the -
prisoner if the crime of which he is accused had been committed
in England, the police magistrate shall commit him to prison,
but otherwise shall order him to be discharged.

In the case of a fugitive criminal alleged to have been con-
victed of an extradition crime, if such evidence is produced as
(subject to the provisions of this Act) would, according to the
law of England, prove that the prisoner was convicted of such
crime, the police magistrate shall commit him to prison, but
otherwise shall order him to be discharged.

If he commits such criminal to prison, he shall commit him
to the Middlesex House of Detention, or to some other prison
in Middlesex, there to await the warrant of a Secretary of State
for his surrender, and shall forthwith send to a Secretary of
State a certificate of the committal, and such report upon the
case as he may think fit.

11. If the police magistrate commits a fugitive criminal to
prison, he shall inform such criminal that he will not be sur-
rendered until after the expiration of fifteen days, and that he
has a right to apply for a writ of Habeas corpus.

Upon the expiration of the said fifteen days, or, if a writ
of Habeas corpus is issued, after the decision of the court upon
the return to the writ, as the case may be, or after such further
period as may be allowed in either case by a Secretary of State,
it shall be lawful for a Secretary of State, by warrant under his
hand and seal, to order the fugitive criminal (if not delivered
on the decision of the court) to be surrendered to such person
as may, in his opinion, be duly authorised to receive the fugitive
criminal by the foreign state from which the requisition for the
surrender proceeded, and such fugitive criminal shall be sur-
rendered accordingly.

EXTRADITION ACT^ 1870. 1029

It shall be lawful for any person to whom such warrant is
directed and for the person so authorised as aforesaid to receive,
hold in custody, and convey within the jurisdiction of such
foreign state the criminal mentioned in the warrant; and if the
criminal escapes out of any custody to which he may be delivered
on or in pursuance of such warrant, it shall be lawful to retake
him in the same manner as any person accused of any crime
against the laws of that part of Her Majesty's dominions to
which he escapes may be retaken upon an escape.

12. If the fugitive criminal who has been committed to prison
is not surrendered and conveyed out of the United Kingdom
within two months after such committal, or, if a writ of Habeas
corpus is issued, after the decision of the court upon the return
to the writ, it shall be lawful for any judge of one of Her
Majesty's Superior Courts at Westminster, upon application
made to him by or on behalf of the criminal, and upon proof that
reasonable notice of the intention to make such application has
been given to a Secretary of State, to order the criminal to be
discharged out of custody, unless sufficient cause is shown to the
contrary.

13. The warrant of the police magistrate issued in pursuance
of this Act may be executed in any part of the United Kingdom
in the same manner as if the same had been originally issued or
subsequently indorsed by a justice of the peace having jurisdic-
tion in the place where the same is executed.

14. Depositions or statements on oath, taken in a foreign
state, and copies of such original depositions or statements, and
foreign certificates of or judicial documents stating the fact of
conviction, may, if duly authenticated, be received in evidence
in proceedings under this Act.

15. Foreign warrants and depositions or statements on oath,
and copies thereof, and certificates of or judicial documents
stating the fact of a conviction, shall be deemed duly authenti-
cated for the purposes of this Act, if authenticated in manner
provided for the time being by law or authenticated as follows:

(1) If the warrant purports to be signed by a judge, magis-

trate, or officer of the foreign state where the same
was issued;

(2) If the depositions or statements or the copies thereof

purport to be certified under the hand of a judge,
magistrate, or officer of the foreign state where the
same were taken to be the original depositions or
statements, or to be true copies thereof, as the case
may require; and

1030 CANADIAN CONSTITUTION: APPENDIX B.

(3) If the certificate of or judicial document stating the
fact of conviction purports to be certified by a judge,
magistrate, or officer of the foreign state where the
conviction took place; and
if in every case the warrants, depositions, statements, copies,
certificates, and judicial documents (as the case may be) are
authenticated by the oath of some witness or by being sealed
with the official seal of the minister of justice, or some other
minister of state: And all courts of justice, justices, and magis-
trates shall take judicial notice of such official seal, and shall
admit the documents so authenticated by it to be received in
evidence without further proof.

Crimes Comynitted at Sea.

16. Where the crime in respect of which the surrender of a
fugitive criminal is sought was committed on board any vessel
on the high seas which comes into any port of the United King-
dom, the following provisions shall have effect:

1. This Act shall be construed as if any stipendiary magis-

trate in England or Ireland, and any sheriff or sheriff
substitute in Scotland, were substituted for the police
magistrate throughout this Act, except the part relat-
ing to the execution of the warrant of the police magis-
trate :

2. The criminal may be committed to any prison to which

the person committing him has power to commit per-
sons accused of the like crime:

3. If the fugitive criminal is apprehended on a warrant

issued without the order of a Secretary of State, he
shall be brought before the stipendiary magistrate,
sheriff, or sheriff substitute who issued the warrant,
or who has jurisdiction in the port where the vessel
lies, or in the place nearest to that port.

Fugitive Criminals in British Possessions.

17. This Act, when applied by Order in Council, shall, unless
it is otherwise provided by such order, extend to every British
possession in the same manner as if throughout this Act the
British possession were substituted for the United Kingdom or
England, as the case may require, but with the following modifi-
cations; namely,

(1) The requisition for the surrender of a fugitive
criminal who is in or suspected of being in a British
possession may be made to the governor of that
British possession by any person recognised by that
governor as a consul-general, consul, or vice-consul,
or (if the fugitive criminal has escaped from a

EXTRADITION ACT, 1870. 1031

colony or dependency of the foreign state on behalf
of which the requisition is made) as the governor
of such colony or dependency:

(2) No warrant of a Secretary of State shall be required,

and all powers vested in or acts authorised or re-
quired to be done under this Act by the police
magistrate and the Secretary of State, or either of
them, in relation to the surrender of a fugitive
criminal, may be done by the governor of the British
possession alone:

(3) Any prison in the British possession may be sub-

stituted for a prison in Middlesex:

(4) A judge of any court exercising in the British posses-

sion the like powers as to the Court of Queen's
Bench exercises in England may exercise the power
of discharging a criminal when not conveyed within
two months out of such British possession.

18. If by any law or ordinance, made before or after the
passing of this Act by the Legislature of any British possession,
provision is made for carrying into effect within such possession
the surrender of fugitive criminals who are in or suspected of
being in such British possession, Her Majesty may, by the
Order in Council applying this Act in the case of any foreign
state, or by any subsequent order, either

suspend the operation within any such British possession
of this Act, or of any part thereof, so far as it relates to
such foreign state, and so long as such law or ordin-
ance continues in force there, and no longer;

or direct that such law or ordinance, or any part thereof,
shall have effect in such British possession, with or
without modifications and alterations, as if it were
part of this Act.

General Provisions.

19. Where, in pursuance of any arrangement with a foreign
state, any person accused or convicted of any crime which, if
committed in England, would be one of the crimes described
in the first schedule to this Act, is surrendered by that foreign
state, such person shall not, until he has been restored or had
an opportunity of returning to such foreign state, be triable
or tried for any offence committed prior to the surrender in
any part of Her Majesty's dominions other than such of the
said crimes as may be proved by the facts on which the surrender
is grounded.

20. The forms set forth in the second schedule to this Act,
or forms as near thereto as circumstances admit, may be used

1032 CANADIAN constitution: appendix b.

in all matters to which such forms refer, and in the case of
a British possession may be so used, mutatis mutandis, and
when used shall be deemed to be valid and sufficient in law.

21. Her Majesty may, by Order in Council, revoke or alter,
subject to the restrictions of this Act, any Order in Council
made in pursuance of this Act, and all the provisions of this
Act with respect to the original order shall (so far as applicable)
apply, mutatis mutandis, to any such new order.

22. This Act (except so far as relates to the execution of
warrants in the Channel Islands) shall extend to the Channel
Islands and Isle of Man in the same manner as if they were
part of the United Kingdom ; and the royal courts of the Channel
Islands are hereby respectively authorised and required to
register this Act.

23. Nothing in this Act shall affect the lawful powers of Her
Majesty or of the Governor-General of India in Council to make
treaties for the extradition of criminals with Indian native states,
or with other Asiatic states conterminous with British India, or
to carry into execution the provisions of any such treaties made
either before or after the passing of this Act.

24. The testimony of any witness may be obtained 'in relation
to any criminal matter pending in any court or tribunal in a
foreign state in like manner as it may be obtained in relation
to any civil matter under the Act of the session of the nineteenth
and twentieth years of the reign of Her present Majesty, chapter
one hundred and thirteen, intituled " An Act to provide for tak-
ing evidence in Her Majesty's Dominions in relation to civil and
commercial matters pending before foreign tribunals;" and all
the provisions of that Act shall be construed as if the term civil
matter included a criminal matter, and the term cause included
a proceeding against a criminal: Provided that nothing in this
section shall apply in the case of any criminal matter of a
political character.

25. For the purposes of this Act, every colony, dependency,
and constituent part of a foreign state, and every vessel of that
state, shall (except where expressly mentioned as distinct in
this Act) be deemed to be within the jurisdiction of and to be
part of such foreign state.

26. In this Act, unless the context otherwise requires, —
The term " British possession " means any colony, planta-
tion, island, territory, or settlement within Her
Majesty's dominions, and not within the United King-
dom, the Channel Islands, and Isle of Man; and all
colonies, plantations, islands, territories, and settle-
ments under one legislature, as hereinafter defined,
are deemed to be one British possession:

EXTRADITION ACT, 1870. 1033

The term " legislature " means any person or persons who
can exercise legislative authority in a British posses-
sion, and where there are local legislatures as well as
a central legislature, means the central legislature
only:

The term " governor " means any person or persons ad-
ministering the government of a British possession,
and includes the governor of any part of India:

The term *' extradition crime " means a crime which, if
committed in England or within English jurisdiction,
would be one of the crimes described in the first
schedule to this Act:

The terms " conviction " and " convicted " do not include
or refer to a conviction which under foreign law is a
conviction for contumacy, but the term ' accused per-
son " includes a person so convicted for contumacy:

The term " fugitive " criminal " means any person accused
or convicted of an extradition crime committed within
the jurisdiction of any foreign state who is in or is
suspected of being in some part of Her Majesty's
dominions; and the terms "fugitive criminal of a
foreign state " means a fugitive criminal accused or
convicted of an extradition crime committed within
the jurisdiction of that state:

The term " Secretary of State " means one of Her Majesty's
Principal Secretaries of State:

The term " police magistrate " means a chief magistrate
of the metropolitan police courts, or one of the other
magistrates of the metropolitan police court in Bow
Street:

The term " justice of the peace " includes in Scotland any
sheriff, sheriff's substitute, or magistrate:

The term " warrant," in the case of any foreign state, in-
cludes any judicial document authorising the arrest of
a person accused or convicted of crime.

Repeal of Acts.
27. The Acts specified in the third schedule to this Act are
hereby' repealed as to the whole of Her Majesty's dominions;
and this Act (with the exception of anything contained in it
which is inconsistent with the treaties referred to in the Acts
so repealed) shall apply (as regards crimes committed either
before or after the passing of this Act), in the case of the
foreign states with which those treaties are made, in the same
manner as if an Order in Council referring to such treaties had
been made in pursuance of this Act, and as if such order had

1034 CANADIAN CONSTITUTION: APPENDIX B.

directed that every law and ordinance which Is In force In
any British possession with respect to such treaties should
have effect as part of this Act.

Provided that if any proceedings for or in relation to the
•surrender of a fugitive criminal have been commenced under
the said Acts previously to the repeal thereof, such proceedings
may be completed, and the fugitive surrendered, in the same
manner as if this Act had not passed.

SCHEDULES.

FIRST SCHEDULES.

List of Crimes.

The following list of crimes is to be construed according to the

law existing in England, or in a British possession (as the case

may be) at the date of the alleged crime, whether by common

law or by statutes made before or after the passing of this Act:

Murder, and attempt and conspiracy to murder.

Manslaughter.

Counterfeiting and altering money and uttering counterfeit
or altered money.

Forgery, counterfeiting, and altering, and uttering what is
forged or counterfeited or altered.

Embezzlement and larceny.

Obtaining money or goods by false pretences.

Crimes by bankrupts against bankruptcy law.

Fraud by a bailee, banker, agent, factor, trustee, or
director, or member, or public officer of any company
made criminal by any Act for the time being in force.

Rape.

Abduction.

Child stealing.

Burglary and housebreaking.

Arson.

Robbery with violence.

Threats by letter or otherwise with Intent to extort.

Piracy by law of nations.

Sinking or destroying a vessel at sea, or attempting or con-
spiring to do so.

Assaults on board a ship on the high seas with intent to
destroy life or to do grievous bodily harm.

Revolt or conspiracy to revolt by two or more persons on
board a ship on the high seas against the authority of
the master.

EXTRADITION ACT, 1870. 1035

SECOND SCHEDULE.
Form of Order of Secretary of State to the Police Magistrate.
To the chief magistrate of the metropolitan police courts or
other magistrate of the metropolitan police court in
Bow Street [or the stipendiary magistrate at ].

Whereas, in pursuance of an arrangement with ,

referred to in an Order of Her Majesty in Council, dated the
day of , a requisition has been made to me,

, one of Her Majesty's Principal Secretaries
of State, by , the diplomatic represen-

tative of , for the surrender of

late of , accused [or convicted] of the com-

mission of the crime of within the jurisdiction

of : Now I hereby, by this my order under my

hand and seal, signify to you that such requisition has been made,
and require you to issue your warrant for the apprehension of
such fugitive, provided that the conditions of The Extradition
Act, 1870, relating to the issue of such warrant, are in your judg-
ment complied with.

Given under the hand and seal of the undersigned, one of
Her Majesty's Principal Secretaries of State, this
day of , 18 .

Form of Warrant of Apprehension hy Order of Secretary of
) State.

Metropolitan \ rpo all and each of the constables of the metro-
police district, I

[or county or V politan police force [or the county or borough

boron jfh <*i ] \ ot ] .

to wit. I

Whereas the Right Honorable

one of Her Majesty's Principal Secretaries of State, by order
under his hand and seal, hath signified to me that requisition
hath been duly made to him for the surrender of ,

late of , accused [or convicted] of the commission

of the crime of within the jurisdiction

of : This is, therefore, to command you in Her

Majesty's name forthwith to apprehend the said
pursuant to The Extradition Act, 1870, wherever he may be found
in the United Kingdom or Isle of Man, and bring him before me
or some other [*magistrate sitting in this court], to show cause
why he should not be surrendered in pursuance of the said Ex-
tradition Act, for which this shall be your warrant.

Given under my hand and seal [*Bow Street, one of the

police courts of the metropolis] this day

of , 18 .

J. P.

* Note. — Alter as required.

1036 CANADIAN CONSTITUTION: APPENDIX B.

Metropolitan ^ t^ ^^ ^^^ ^^^^ ^^ ^^^ constables Of the metro-
police district, I

[o?- county or V politan police force [or of the county or

borough of ] borough of 1.

to wit. ; ® ^ -■

Whereas It has been shown to the undersigned, one of Her
Majesty's justices of the peace in and for the metropolitan police
district [or the said county or borough of ]

that late of is accused

[or convicted] of the commission of the crime of
within the jurisdiction of : This is, therefore,

to command you in Her Majesty's name forthwith to apprehend
the said and to bring him before me or some

other magistrate sitting at this court [or one of Her Majesty's
justices of the peace in and for the county [or borough] of
] to be further dealt with according to
law, for which this shall be your warrant.

Given under my hand and seal at Bow Street, one of the
police courts of the metropolis, [or in the

county or borough aforesaid] this day

of ' , 18 .

J. P.

Form of Warrant for "bringing Prisoner before the Police
Magistrate.

^ ^ ^ , ^ To , constable of the police force

County [or bo- , j ^ ,, x, «.

rough] of f o' » ^^^ to all Other peace officers

to wit. J in the said county [or borough] of

Whereas , late of ,

accused [or alleged to be convicted of] the commission of the
crime of within the jurisdiction of ,

has been apprehended and brought before the undersigned, one
of Her Majesty's justices of the peace in and for the said county
[or borough] of : And whereas by The Extradition

Act, 1870, he is required to be brought before the chief magistrate
of the metropolitan police court, or one of the police magistrates
of the metropolis sitting at Bow Street, within the metropolitan
police district [or the stipendiary magistrate for ] :

This is, therefore, to command you, the said constable in Her
Majesty's name forthwith to take and convey the said
to the metropolitan police district [or the said
and there carry him before the said chief magistrate or one of the
police magistrates of the metropolis sitting at Bow Street within
the said district [or before a stipendiary magistrate sitting in the
said ] to show cause why he should not be

EXTRADITION ACT, 1870. 1037

surrendered in pursuance of The Extradition Act, 1870, and other-
wise to be" dealt with in accordance with law, for which this shall
be your warrant.

Given under my hand and seal at in the

county [or borough] aforesaid, this day

of , 18 .

J. P.

Form of Warrant of Committal.

Metropolitan . To , one of the constables of

police district, the metropolitan police force, [or of the police

Wou^h^of^^ ] [ ^*^^^® ^^ ^^® county or borough of ],

to wit. ) and to the keeper of the

Be it remembered, that on this day of ,

in the year of our Lord , late of ,

is brought before me , , the chief magistrate of the

metropolitan police courts [or one of the police magistrates of the
metropolis] sitting at the police court in Bow Street, within the
metropolitan police district, [or a stipendiary magistrate for
,] to show cause why he should not be sur-
rendered in pursuance of The Extradition Act, 1870, on the
ground of his being accused [or convicted] of the commission of
the crime of within the jurisdiction

of , and forasmuch as no sufficient cause

has been shown to me why he should not be surrendered in
pursuance of the said Act:

This is, therefore, to command you the said constable in Her
Majesty's name forthwith to convey and deliver the body of the
said into the custody of the said keeper of

the at , and you the said keeper to

receive the said into your custody, and him

there safely to keep until he is thence delivered pursuant to the
provisions of the said Extradition Act, for which this shall be
your warrant.

Given under my hand and seal at Bow Street, one of the
police courts of the metropolis, [or at the said ]

this day of , 18

J. P.

Form of Warrant of Secretary of State for Surrender of

Fugitive.
To the keeper of and to

Whereas , late of , accused [or

convicted] of the commission of the crime of within

1038

CANADIAN constitution: APPENDIX B.

the jurisdiction of , was delivered into the custody

of you, , the keeper of , by warrant

dated pursuant to the Extradition Act, 1870:

Now I do hereby, in pursuance of the said Act, order you the
said keeper to deliver the body of the said into

the custody of the said , and I command you the

said to receive the said into

your custody, and to convey him within the jurisdiction of the
said , and there place him in the custody of any

person or persons appointed by the said to

receive him, for which this shall be your warrant.

Given under the hand and seal of the undersigned, one

of Her Majesty's Principal Secretaries of State,

this day of

THIRD SCHEDULE.

Year and Chapter.

6 & 7 Vict. c. 75.

6 & 7 Vict. c. 76.

8 & 9 Vict. .c. 120.
25 & 26 Vict. c. 70

29 & 30 Vict. c. 121.

Title.

An Act for giving effect to a convention be-
tween Her Majesty and the King of the
French for the apprehension of certain
offenders.

An Act for giving effect to a treaty between
Her Majesty and the United States of
America for the apprehension of certain
offenders.

An Act for facilitating execution of the treaties
with France and the United States of
America for the apprehension of certain
offenders.

An Act for giving effect to a convention be-
tween Her Majesty and the King of Den-
mark for the mutual surrender of criminals.

An Act for the amendment of the law relating
to treaties of extradition.

12. THE FUGITIVE OFFENDERS ACT, 1881.
44-45 Vict. cap. 69 (Imp.).
An Act to amend the Law with respect to Fugitive Offenders in
Her Majesty's Dominions, and for other Purposes connected
with the Trial of Offenders.

[27th August, 1881.]
Be it 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; (that is to say,)

1. This Act may be cited as the Fugitive Offenders Act, 1881.

FUGITIVE OFFENDEES ACT, 1881. 1039

PART I.
Return of Fugitives.

2. Where a person accused of having committed an ofEence (to
which this part of this Act applies) in one part of Her Majesty's
dominions has left that part, such person (in this Act referred
to as a fugitive from that part) if found in another part of Her
Majesty's dominions, shall be liable to be apprehended and re-
turned in manner provided by this Act to the part from which
he is a fugitive.

A fugitive may be so apprehended under an endorsed warrant
or a provisional warrant.

3. Where a warrant has been issued in one part of Her
Majesty's dominions for the apprehension of a fugitive from
that part, any of the following authorities in another part of Her
Majesty's dominions in or on the way to which the fugitive is
or is suspected to be; (that is to say,)

(1) A judge of a superior court in such part; and

(2) In the United Kingdom a Secretary of State and one

of the magistrates of the metropolitan police court
in Bow Street; and

(3) In a British possession the governor of that posses-

sion,
if satisfied that the warrant was issued by some person having
lawful authority to issue the same, may endorse such warrant in
manner provided by this Act, and the warrant so endorsed shall
be a sufficient authority to apprehend the fugitive in the part of
Her Majesty's dominions in which it is endorsed, and bring him
before a magistrate.

4. A magistrate of any part of Her Majesty's dominions may
issue a provisional warrant for the apprehension of a fugitive
who is or is suspected of being in or on his way to that part on
such information, and under such circumstances, as would, in
his opinion, justify the issue of a warrant if the offence of which
the fugitive is accused had been committed within his jurisdic-
tion, and such warrant may be backed and executed accordingly.

A magistrate issuing a provisional warrant shall forthwith
send a report of the issue, together with the information or a
certified copy thereof, if he is in the Unitea Kingdom, to a Secre-
tary of State, and if in a British possession, to the governor of
that possession, and the Secretary of State or governor may, if he
think fit, discharge the person apprehended under such warrant.

5. A fugitive when apprehended shall be brought before a
magistrate, who (subject to the provisions of this Act) shall hear
the case in the same manner and have the same jurisdiction and

1040 CANADIAN CON'STITUTION : APPENDIX B.

powers, as near as may be (including the power to remand and
admit to bail), as if tbe fugitive were charged with an offence
committed within his jurisdiction.

If the endorsed warrant for the apprehension of the fugitive
is duly authenticated, and such evidence is produced as (subject
to the provisions of this Act) according to the law ordinarily
administered by the magistrate, raises a strong or probable pre-
sumption that the fugitive committed the offence mentioned in
the warrant, and that the offence is one to which this part of this
Act applies, the magistrate shall commit the fugitive to prison
to await his return, and shall forthwith send a certificate of the
committal and such report of the case as he may think fit, if in
the United Kingdom to a Secretary of State, and if in a British
possession, to the governor of that possession.

Where the magistrate commits the fugitive to prison, he shall
inform the fugitive that he will not be surrendered until after the
expiration of fifteen days, and that he has a right to apply for a
writ of habeas corpus, or other like process.

A fugitive apprehended on a provisional warrant may be from
time to time remanded for such reasonable time not exceeding
seven days at any one time as under the circumstances seems
requisite for the production of an endorsed warrant.

6. Upon the expiration of fifteen days after a fugitive has been
committed to prison to await his return, or if a writ of habeas
corpus or other like process is issued with reference to such
fugitive by a superior court, after the final decision of the court
in the case,

(1) if the fugitive is so committed in the United Kingdom,

a Secretary of State; and

(2) if the fugitive is so committed in a British possession,

the governor of that possession,
may, if he thinks it just, by warrant under his hand order that
fugitive to be returned to the part of Her Majesty's dominions
from which he is a fugitive, and for that purpose to be delivered
into the custody of the persons to whom the warrant is addressed,
or some one or more of them, and to be held in custody, and con-
veyed by sea or otherwise to the said part of Her Majesty's
dominions, to be dealt with there in due course of law as if he
had been there apprehended, and such warrant shall be forthwith
executed according to the tenor thereof.

The governor or other chief officer of any prison, on request of
any person having the custody of a fugitive under any such war-
rant, and on payment or tender of a reasonable amount for ex-
penses, shall receive such fugitive and detain him for such

FUGITIVE OFFENDERS ACT, 1881. 1041

reasonable time as may be requested by the said person for the
purpose of the proper execution of the warrant.

7. If a fugitive who, in pursuance of this part of this Act, has
been committed to prison in any part of Her Majesty's dominions
to await his return, is not conveyed out of that part within one
month after such committal, a superior court, upon application
by or on behalf of the fugitive, and upon proof that reasonable
notice of the intention to make such application has been given,
if the said part is the United Kingdom to a Secretary of State,
and if the said part is a British possession to the governor of
the possession, may, unless sufficient cause is shown to the con-
trary, order the fugitive to be discharged out of custody.

8. Where a person accused of an offence and returned in pur-
suance of this part of this Act to any part of Her Majesty's
dominions, either is not prosecuted for the said offence within
six months after his arrival in that part, or is acquitted of the
said offence, then if that part is the United Kingdom a Secretary
of State, and if that part is a British possession the governor of
that possession, may, if he think fit, on the request of such per-
son, cause him to be sent back free of cost and with as little delay
as possible to the part of Her Majesty's dominions in or on his
way to which he was apprehended.

9. This part of this Act shall apply to the following offences,
namely, to treason and piracy, and to every offence, whether
called felony, misdemeanour, crime, or by any other name, which
is for the time being punishable in the part of Her Majesty's
dominions in which it was committed, either on indictment or
information, by imprisonment with hard labour for a term of
twelve months or more, or by any greater punishment; and for
the purposes of this section, rigorous imprisonment, and any
confinement in a prison combined with labour, by whatever name
it is called, shall be deemed to be imprisonment with hard labour..

This part of this Act shall apply to an offence notwithstanding
that by the law of the part of Her Majesty's dominions in or on
his way to which the fugitive is or is suspected of being it is
not an offence, or not an offence to which this part of this Act
applies; and all the provisions of this part of this Act, including
those relating to a provisional warrant, and to a committal ta
prison, shall be construed as if the offence were in such last-
mentioned part of Her Majesty's dominions an offence to which
this part of this Act applies.

10. Where it is made to appear to a superior court that by
reason of the trivial nature of the case, or by reason of the appli-
cation for the return of a fugitive not being made in good faitk

CAN. CON. — 66

1042 CANADIAN constitution: appendix b.

In the interests of justice or otherwise, it would, having regard
to the distance, to the facilities for communication, and to all
the circumstances of the case, be unjust or oppressive or too
severe a punishment to return the fugitive either at all or until
the expiration of a certain period, such court may discharge the
fugitive, either absolutely or on bail, or order that he shall not
be returned until after the expiration of the period name in the
order, or may make such other order in the premises as to the
court seems just.

11. In Ireland, the Lord Lieutenant or Lords Justices or other
chief governor or governors of Ireland, also the chief secretary
of such Lord Lieutenant, may, as well as a Secretary of State,
execute any portion of the powers by this part of this Act vested
in a Secretary of State.

PART II.
Intercolonial Backing of Warrants, and Offences.

Application of Part of Act.

12. This part of this Act shall apply only to those groups of
British possessions to which, by reason of either contiguity or
otherwise, it may seem expedient to Her Majesty to apply the
same.

It shall be lawful for Her Majesty from time to time by Order
in Council to direct that this part of this Act shall apply to the
group of British possessions mentioned in the Order, and by the
same or any subsequent Order to except certain offences from
the application of this part of this Act, and to limit the applica-
tion of this part of this Act by such conditions, exceptions, and
qualifications as may be deemed expedient.

Backing of Warrant.

13. Where in a British possession of a group to which this
part of this Act applies, a warrant has been issued for the appre-
hension of a person accused of an offence punishable by law in
that possession, and such person is or is suspected of being in
or on the way to another British possession of the same group, a
magistrate in the last-mentioned possession, if satisfied that the
warrant was issued by a person having lawful authority to issue
the same, may endorse such warrant in manner provided by this
Act, and the warrant so endorsed shall be a suflSicient authority
to apprehend, within the jurisdiction of the endorsing magis-
trate, the person named in the warrant, and bring him before
the endorsing magistrate or some other magistrate in the same
British possession.

FUGITIVE OFFENDERS ACT, 1881. 1043

14. The magistrate before whom a person so apprehended is
brought, if he is satisfied that the warrant is duly authenticated
as directed by this Act and was issued by a person having lawful
authority to issue the same, and is satisfied on oath that the
prisoner is the person named or otherwise described in the
warrant, may order such prisoner to be returned to the British
possession in which the warrant was issued, and for that pur-
pose to be delivered into the custody of the persons to whom the
warrant is addressed, or any one or more of them, and to be held
in custody and conveyed by sea or otherwise into the British
possession in which the warrant was issued, there to be dealt
with according to law as if he had been there apprehended. Such
order for return may be made by warrant under the hand of the
magistrate making it, and may be executed according to the
tenor thereof.

A magistrate shall, so far as is requisite for the exercise of the
powers of this section, have the same power, including the power
to remand and admit to bail a prisoner, as he has in the case of a
person apprehended under a warrant issued by him.

15. Where a person required to give evidence on behalf of the
prosecutor or defendant on a charge for an offence punishable by
law in a British possession of a group to which this part of this
Act applies, is or is suspected of being in or on his way to any
other British possession of the same group, a judge, magistrate,
or other officer who would have lawful authority to issue a
summons requiring the attendance of such witness, if the witness
were within his jurisdiction, may issue a summons for the
attendance of such witness, and a magistrate in any other British
possession of the same group, if satisfied that the summons was
issued by some judge, magistrate, or officer having lawful auth-
ority as aforesaid, may endorse the summons with his name;
and the witness, on service in that possession of the summons, so
endorsed, and on payment or tender of a reasonable amount for
his expenses, shall obey the summons, and in default shall be
liable to be tried and punished either in the possession in which
he is served or in the possession in which the summons was
issued, and shall be liable to the punishment imposed by the
law of the possession in which he is tried for the failure of a
witness to obey such a summons. The expression " summons "
in this section includes any subpoena or other process for re-
quiring the attendance of a witness.

16. A magistrate in a British possession of a group to which
this part of this Act applies, before the endorsement in pursuance
of this part of this Act of a warrant for the apprehension of any
person, may issue a provisional warrant for the apprehension of

1044 CANADIAN constitution: appendix b.

that person, on such information and under such circumstances
as would, in his opinion, justify the issue of a warrant if the
offence of which such person is accused were an offence punish-
able by the law of the said possession, and had been committed
within his jurisdiction, and such warrant may be backed and
executed accordingly; provided that a person arrested under
such provisional warrant shall be discharged unless the original
warrant is produced and endorsed within such reasonable time
as may under the circumstances seem requisite.

17. If a prisoner in a British possession whose return is
authorised in pursuance of this part of this Act is not conveyed
out of that possession within one month after the date of the
warrant ordering his return, a magistrate or a superior court,
upon application by or on behalf of the prisoner, and upon proof
that reasonable notice of the intention to make such application
has been given to the person holding the warrant and to the
chief officer of the police of such possession or of the province or
town where the prisoner is in custody, may, unless sufficient
cause is shown to the contrary, order such prisoner to be dis-
charged out of custody.

Any order or refusal to make an order of discharge by a
magistrate under this section shall be subject to appeal to a
superior court.

18. Where a prisoner accused of an offence is returned in
pursuance of this part of this Act to a British possession, and
either is not prosecuted for the said offence within six months
after his arrival in that possession or is acquitted of the said
offence, the governor of that possession, if he thinks fit, may, on
the requisition of such person, cause him to be sent back, free of
cost, and with as little delay as possible, to the British possession
in or on his way to which he was apprehended.

19. Where the return of a prisoner is sought or ordered under
this part of this Act, and it is made to appear to a magistrate or
to a superior court that by reason of the trivial nature of
the case or by reason of the application for the return
of such prisoner not being made in good faith in the in-
terests of justice or otherwise, it would, having regard to the
distance, to the facilities of communication, and to all the cir-
cumstances of the case, be unjust or oppressive, or too severe a
punishment, to return the prisoner either at all or until the ex-
piration of a certain period, the court or magistrate may dis-
charge the prisoner either absolutely or on bail, or order that
he shall not be returned until after the expii'ation of the period
named in the order, or may make such other order in the
premises as to the magistrate or court seems just.

FUGITIVE OFFENDERS ACT, 1881. 1045

Any order or refusal to make an order of discharge by a
magistrate under this section shall be subject to an appeal to a
superior court.

PART III.

Trial, etc., of Offences.

20. Where two British possessions adjoin, a person accused
of an offence committed on or within the distance of five hundred
yards from the common boundary of such possessions may be
apprehended, tried, and punished in either of such possessions.

21. Where an offence is committed on any person or in
respect of any property in or upon any carriage, cart, or vehicle
whatsoever employed in a journey, or on board any vessel what-
soever employed in a navigable river, lake, canal, or inland
navigation, the person accused of such offence may be tried in
any British possession through a part of which such carriage,
cart, vehicle, or vessel passed in the course of the journey or
voyage during which the offence was committed; and where the
side, bank, centre, or other part of the road, river, lake, canal,
or inland navigation along which the carriage, cart, vehicle, or
vessel passed .in the course of such journey or voyage is the
boundary of any British possession, a person may be tried for
such offence in any British possession of which it is the boun-
dary:

Provided that nothing in this section shall authorise the trial
for such offence of a person who is not a British subject, where
it is not shown that the offence was committed in a British
possession.

22. A person accused of the offence (under whatever name it
is known) of swearing or making any false deposition, or of
giving or fabricating any false evidence, for the purposes of this
Act, may be tried either in the part of Her Majesty's dominions
in which such deposition or evidence is used, or in the part in
which the same was sworn, made, given, or fabricated, as the
justice of the case may require.

23. Where any part of this Act provides for the place of trial
of a person accused of an offence, that offence shall, for all pur-
poses of and incidental to the apprehension, trial, and punish-
ment of such person, and of and incidental to any proceedings
and matters preliminary, incidental to, or consequential thereon,
and of and incidental to the jurisdiction of any court, constable,
or oflBcer with reference to such offence, and to any person
accused of such offence, be deemed to have been committed in
any place in which the person accused of the offence can be

1046 CANADIAN constitution: appendix b.

tried for it; and such person may be punished in accordance
with the Courts (Colonial) Jurisdiction Act, 1874.

24. Where a warrant for the apprehension of a person accused
of an offence has been endorsed in pursuance of any part of this
Act in any part of Her Majesty's dominions, or where any part
of the Act provides for the place of trial of a person accused of
an offence, every court and magistrate of the part in which the
warrant is endorsed or the person accused of the offence can be
tried shall have the same power of issuing a warrant to search
for any property alleged to be stolen or to be otherwise unlawfully
taken or obtained by such person, or otherwise to be the subject
of such offence, as that court or magistrate would have if the
property had been stolen or otherwise unlawfully taken or ob-
tained, or the offence had been committed wholly within the
jurisdiction of such court or magistrate.

25. Where a person is in legal custody in a British possession
either in pursuance of this Act or otherwise, and such person is
required to be removed in custody to another place in or belong-
ing to the same British possession, such person, if removed by
sea in a vessel belonging to Her Majesty or any of Her Majesty's
subjects, shall be deemed to continue in legal custody until he
reaches the place to which he is required to be removed; and
the provisions of this Act with respect to the retaking of a
prisoner who has escaped, and with respect to the trial and
punishment of a person guilty of the offence of escaping or
attempting to escape, or aiding or attempting to aid a prisoner
to escape, shall apply to the case of a prisoner escaping while
being lawfully removed as aforesaid, in like manner as if he
were being removed in pursuance of a warrant endorsed in
pursuance of this Act.

PART IV.
Supplemental.
Warrant and Escape.
26. An endorsement of a warrant in pursuance of this Act
shall be signed by the authority endorsing the same, and shall
authorise all or any of the persons named in the endorsement,
and of the persons to whom the warrant was originally directed,
and also every constable, to execute the warrant within the part
of Her Majesty's dominions or place within which such endorse-
ment is by this Act made a sufficient authority, by apprehending
the person named in it, and bringing him before some magistrate
in the said part or place, whether the magistrate named in the
endorsement or some other.

FUGITIVE OFFENDERS ACT, 1881. 1047

For the purposes of this Act every warrant, summons, sub-
poena, and process, and every endorsement made in pursuance of
this Act thereon, shall remain in force, notwithstanding that the
person signing the warrant or such endorsement dies or ceases
to hold office.

27. Where a fugitive or prisoner is authorised to be returned
to any part of Her Majesty's dominions in pursuance of Part One
or Part Two of this Act, such fugitive or prisoner may be sent
thither in any ship belonging to Her Majesty or to any of her
subjects.

For the purpose aforesaid, the authority signing the warrant
for the return may order the master of any ship belonging to any
subject of Her Majesty bound to the said part of Her Majesty's
dominions to receive and afford a passage and subsistence during
the voyage to such fugitive or prisoner, and to the person having
him in custody, and to the witnesses, so that such master be not
required to receive more than one fugitive or prisoner for every
hundred tons of his ship's registered tonnage, or more than one
witness for every fifty tons of such tonnage.

The said authority shall endorse or cause to be endorsed upon
the agreement of the ship such particulars with respect to any
fugitive prisoner or witness sent in her as the Board of Trade
from time to time require.

Every such master shall, on his ship's arrival in the said part
of Her Majesty's dominions, cause such fugitive or prisoner, if he
is not in the custody of any person, to be given into the custody of
some constable, there to be dealt with according to law.

Every ma'ster who fails on payment or tender of a reasonable
amount for expenses to comply with an order made in pursuance
of this section, or to cause a fugitive or prisoner committed to
his charge to be given into custody as required by this section,
shall be liable on summary conviction to a fine not exceeding fifty
pounds, which may be recovered in any part of Her Majesty's
dominions in like manner as a penalty of the same amount under
the Merchant Shipping Act, 1854, and the Acts amending the
same.

28. If a prisoner escape, by breach of prison or otherwise, out
of the custody of a person acting under a warrant issued or en-
dorsed in pursuance of this Act, he may be retaken in the same
manner as a person accused of a crime against the law of that
part of Her Majesty's dominions to which he escapes may be
retaken upon an escape.

A person guilty of the offence of escaping or of attempting to
escape, or of aiding or attempting to aid a prisoner to escape, by
breach of prison or otherwise, from custody under any warrant

1048 CANADIAN constitution: appendix b.

issued or endorsed in pursuance of this Act, may be tried in any
of the following parts of Her Majesty's dominions, namely, the
part to which and the part from which the prisoner is being
removed, and the part in which the prisoner escapes and the part
in which the offender is found.

Evidence.

29. A magistrate may take depositions for the purposes of this
Act in the absence of a person accused of an offence in like
manner as he might take the same if such person were present
and accused of the offence before him.

Depositions (whether taken in the absence of the fugitive or
otherwise) and copies thereof, and official certificates of or
judicial documents stating facts, may, if duly authenticated, be
received in evidence in proceedings under this Act.

Provided that nothing in this Act shall authorise the recep-
tion of any such depositions, copies, certificates, or documents in
evidence against a person upon his trial for an offence.

Warrants and depositions, and copies thereof, and official cer-
tificates of or judicial documents stating facts, shall be deemed
duly authenticated for the purposes of this Act if they are
authenticated in manner provided for the time being by law, or
if they purport to be signed by or authenticated by the signature
of a judge, magistrate, or officer of the part of Her Majesty's
dominions in which the same are issued, taken, or made, and
are authenticated either by the oath of some witness, or by being
sealed with the official seal of a Secretary of State, or with the
public seal of a British possession, or with the official seal of a
governor of a British possession, or of a colonial secretary, or
of some secretary or minister administering a department of the
government of a British possession.

And all courts and magistrates shall take judicial notice of
every such seal as is in this section mentioned, and shall admit
in evidence without further proof the documents authenticated
by it.

Miscellaneous.

30. The jurisdiction under Part One of this Act to hear a case
and commit a fugitive to prison to await his return shall be
exercised, —

(1) In England, by a chief magistrate of the metropolitan

police courts or one of the other magistrates of the
metropolitan police court at Bow Street; and

(2) In Scotland, by the sheriff or sheriff' substitute of the

county of Edinburgh ; and

(3) In Ireland, by one of the police magistrates of the

Dublin metropolitan police district; and

FUGITIVE OFFENDERS ACT, 1881. 1049

(4) In a British possession, by any judge, justice of the

peace, or other officer having the like jurisdiction

as one of the magistrates of the metropolitan police

court in Bow Street, or by such other court, judge,

or magistrate as may be from time to time provided

by an Act or ordinance passed by the legislature of

that possession.

If a fugitive is apprehended and brought before a magistrate

who has no power to exercise the jurisdiction under this Act in

respect of that fugitive, that magistrate shall order the fugitive

to be brought before some magistrate having that jurisdiction,

and such order shall be obeyed

31. It shall be lawful for Her Majesty in Council from time to
time to make Orders for the purposes of this Act, and to revoke
and vary any Order so made, and every Order so made shall,
while it is in force, have the same effect as if it were enacted in
this Act.

An Order in Council made for the purposes of this Act shall
be laid before Parliament as soon as may be after it is made if
Parliament is then in session, or if not, as soon as may be after
the commencement of the then next session of Parliament.

32. If the legislature of a British possession pass any Act or
ordinance —

(1) For defining the offences committed in that posses-

sion to which this Act or any part thereof is to
apply; or

(2) For determining the court, judge, magistrate, officer,

or person by whom and the manner in which any
jurisdiction or power under this Act is to be exer-
cised; or

(3) For payment of the costs incurred in returning a

fugitive or a prisoner, or in sending him back if not
prosecuted or if acquired, or otherwise in the execu-
tion of this Act; or

(4) In any manner for the carrying of this Act or any

part thereof into effect in that possession,
it shall be lawful for Her Majesty by Order in Council to direct,
if it seems to Her Majesty in Council necessary or proper for
carrying into effect the objects of this Act, that such Act or
ordinance, or any part thereof, shall with or without modifica-
tion or alteration be recognised and given effect to throughout
Her Majesty's dominions and on the high seas as if it were part
of this Act.

Application of Act.

33. Where a person accused of an offence can, by reason of the
nature of the offence, or of the place in which it was committed,

1050 CANADIAN constitution: appendix b.

or otherwise, be, under this Act or otherwise, tried for or in
respect of the offence in more than one part of Her Majesty's
dominions, a warrant for the apprehension of such person may be
issued in any part of Her Majesty's dominions in which he can,
if he happens to be there, be tried; and each part of this Act
shall apply as if the offence had been committed in the part of
Her Majesty's dominions where such warrant is issued, and such
person may be apprehended and returned in pursuance of this
Act, notwithstanding that in the place in which he is appre-
hended a court has jurisdiction to try him:

Provided that if such person is apprehended in the United
Kingdom, a Secretary of State, and if he is apprehended in a
British possession, the Governor of such possession may, if
satisfied that, having regard to the place where the witnesses
for the prosecution and for the defence are to be found, and to-
all the circumstances of the case, it would be conducive to the
interests of justice so to do, order such person to be tried in the
part of Her Majesty's dominions in which he is apprehended, and
in such case any warrant previously issued for his return shall
not be executed.

34. Where a person convicted by a court in any part of Her
Majesty's dominions of an offence committed either in Her
Majesty's dominions or elsewhere, is unlawfully at large before
the expiration of his sentence, each part of this Act shall apply
to such person, so far as is consistent with the tenor thereof,
in like manner as it applies to a person accused of the like
offence committed in the part of Her Majesty's dominions in
which such person was convicted.

35. Where a person accused of an offence is in custody in some
part of Her Majesty's dominions, and the offence is one for or in
respect of which, by reason of the nature thereof or of the place
in which it was committed or otherwise, a person may under this
Act or otherwise be tried in some other part of Her Majesty's
dominions, in such case a superior court, and also if such person
is in the United Kingdom a Secretary of State, and if he is in a
British possession the governor of that possession, if satisfied
that, having regard to the place where the witnesses for the
prosecution and for the defence are to be found, and to all the
circumstances of* the case, it would be conducive to the interests
of justice so to do, may by warrant direct the removal of such
offender to some other part of her Majesty's dominions in which
he can be tried, and the offender may be returned, and, if not
prosecuted or acquitted, sent back free of cost in like manner as
if he were a fugitive returned in pursuance of Part One of this
Act, and the warrant were a warrant for the return of such
fugitive, and the provisions of this Act shall apply accordingly.

FUGITIVE OFFENDERS ACT, 1881. 1051

36. It shall be lawful for Her Majesty from time to time by
Order in Council to direct that this Act shall apply as if, subject
to the conditions, exceptions, and qualifications (if any) con-
tained in the Order, any place out. of Her Majesty's dominions in
which Her Majesty has jurisdiction, and which is named in the
Order, were a British possession, and to provide for carrying into
effect such application.

37. This Act shall extend to the Channel Islands and the Isle
of Man as if they were part of England and of the United King-
dom, and the United Kingdom and those islands shall be deemed
for the purpose of this Act to be one part of Her Majesty's
dominions; and a warrant endorsed in pursuance of Part One of
this Act may be executed in every place in the United Kingdom
and the said islands accordingly.

38. This Act shall apply where an offence is committed before
the commencement of this Act, or, in the case of Part Two of this
Act, before the application of that part to a British possession
or to the offence, in like manner as if such offence had been com-
mitted after such commencement or application.

Definitions and Repeal.

39. In this Act, unless the context otherwise requires, —

The expression " Secretary of State " means one of Her
Majesty's Principal Secretaries of State:

The expression '* British possession " means any part of
Her Majesty's dominions, exclusive of the United King-
dom, the Channel Islands, and Isle of Man; all terri-
tories and places within Her Majesty's dominions
which are under one legislature shall be deemed to be
one British possession and one part of Her Majesty's
dominions:

The expression " legislature," where there are local legis-
latures as well as a central legislature, means the
central legislature only:

The expression " governor " means any person or persons
administering the government of a British possession,
and includes the governor and lieutenant-governor of
any part of India:

The expression " constable " means, out of England, any
policeman or officer having the like powers and duties
as a constable in England:

The expression " magistrate " means, except in Scotland,
any justice of the peace, and in Scotland means a
sheriff or sheriff substitute, and in the Channel Islands,

1052 CANADIAN CONSTITUTION: APPENDIX B.

Isle of Man, and a British possession means any per-
son having authority to issue a warrant for the appre-
hension of persons accused of offences and to commit
such persons for trial:

The expression " offence punishable on indictment " means,
as regards India, an offence punishable on a charge
or otherwise:

The expression " oath " includes affirmation or declaration
in the case of persons allowed by law to affirm or de-
clare instead of swearing, and the expression " swear "
and other words relating to an oath or swearing shall
be construed accordingly:

The expression " deposition " includes any affidavit, affirm-
ation, or statement made upon oath as above defined:

The expression "superior court" means:

(1) In England, Her Majesty's Court of Appeal and High

Court of Justice; and

(2) In Scotland, the High Court of Justiciary; and

(3) In Ireland, Her Majesty's Court of Appeal and Her

Majesty's High Court of Justice at Dublin; and

(4) In a British possession, any court having in that

possession the like criminal jurisdiction to that
which is vested in the High Court of Justice in Eng-
land, or such court or judge as may be determined
by any Act or ordinance of that possession.
40. This Act shall come into operation on the first day of
January one thousand eight hundred and eighty-two, which date
is in this Act referred to as the commencement of this Act.

(41) The Act specified in the Schedule to this Act is hereby
repealed as from the commencement of this Act:
Provided that this repeal shall not affect —

(a) Any warrant duly endorsed or issued, nor anything
duly done or suffered before the commencement of
this Act; nor
(6) Any obligation or liability incurred under an enact-
ment hereby repealed ; nor

respect of any offence committed against any enact-
ment hereby repealed; nor

(d) Any legal proceeding or remedy in respect of any such

warrant, obligation, liability, penalty, forfeiture, or
punishment as aforesaid; and any such warrant may
be endorsed and executed, and any such legal pro-
ceeding and remedy may be carried on, as if this
Act had not passed.

COI.ONIAI, NAYAL DEFENCE ACT, 1865. 1053

SCHEDULE.

Year and Chapter.

6 & 7 Vict. c. 34..

Title.

An Act for the better apprehension of certain
offenders.

13. COLONIAL NAVAL DEFENCE ACT, 1865.
28-29 Vict. cap. 14 (Imp.).

An Act to make better Provision for the Naval Defence of the

Colonies.

[Hth April, 1865.1
Whereas it is expedient to enable the several colonial posses-
sions of Her Majesty the Queen to make better provision for
naval defence, and to that end to provide and man vessels of
war, and also to raise a volunteer force, to form part of the Royal
Naval Reserve established under the Act of Parliament of 1859,
" for the establishment of a Reserve Volunteer Force of Seamen,
and for the government of the same/' (hereafter in this Act
called the Act of 1859), and accordingly to be available for
general service in the Royal Navy in emergency:

Be it therefore enacted by the Queen's most Excellent Majesty,
by and with the advice and consent of the lords spiritual and
temporal, and commons, in this present Parliament assembled,
and by the authority of the same, as follows:

1. This Act may be cited as The Colonial Naval Defence Act,
1865.

2. In this Act—

The term " colony " includes any plantation, island, or
other possession within Her Majesty's dominions, ex-
clusive of the United Kingdom of Great Britain and
Ireland, and of the islands being immediate depend-
encies thereof, and exclusive of India as defined by
the Act of Parliament of 1858, " for the better govern-
ment of India:"

The term " the Admiralty " means the Lord High Admiral
of the United Kingdom, or the Commissioners for
executing the office of Lord High Admiral.

3. In any colony it shall be lawful for the proper legislative
authority, with the approval of Her Majesty in Council, from
time to time to make provision for effecting at the expense of the
colony all or any of the purposes following:

1054 CANADIAN constitution: appendix b.

(1) For providing, maintaining, and using a vessel or

vessels of war, subject to such conditions and for
such purposes as Her Majesty in Council from time
to time approves:

(2) For raising and maintaining seamen and others en-

tered on the terms of being bound to serve as or-
dered in any such vessel:

(3) For raising and maintaining a body of volunteers en-

tered on the terms of being bound to general service
in the Royal Navy in emergency, and, if in any case
the proper legislative authority so directs, on the
further terms of being bound to serve as ordered in
any such vessel as aforesaid:

(4) For appointing commissioned, warrant, and other

officers to train and command or serve as officers^
with any such men, ashore or afloat, on such terms
and subject to such regulations as Her Majesty in
Council from time to time approves:

(5) For obtaining from the Admiralty the services of

commissioned, warrant, and other officers and of
men of the Royal Navy for the last-mentioned pur-
poses:

(6) For enforcing good order and discipline among the

men and officers aforesaid, while ashore or afloat
within the limits of the colony:

(7) For making the men and officers aforesaid, while

ashore or afloat within the limits of the colony or
elsewhere, subject to all enactments and regulations
for the time being in force for the discipline of the
Royal Navy.

4. Volunteers raised as aforesaid in any colony shall form
part of the Royal Naval Reserve, in addHion to the volunteers
who may be raised under the Act of 1859, but, except as in this
Act expressly provided, shall be subject exclusively to the pro-
visions made as aforesaid by the proper legislative authority of
the colony.

5. It shall be lawful for Her Majesty in Council from time to
time as occasion requires, and on such conditions as seem fit, to
authorise the Admiralty to issue to any officer of the Royal Navy
volunteering for the purpose a special commission for service in
accordance with the provisions of this Act.

6. It shall be lawful for Her Majesty in Council from time to
time as occasion requires, and on such conditions as seem fit, to
authorise the Admiralty to accept any offer for the time being
made or to be made by the Government of a colony to place at

COLONIAL NAVAL DEFENCE ACT, 1865. 1055

Her Majesty's disposal any vessel of war provided by that
Government, and the men and officers from time to time serving
therein; and while any vessel accepted by the Admiralty under
such authority is at the disposal of Her Majesty, such vessel
shall be deemed to all intents a vessel of war of the Royal Navy,
and the men and officers from time to time serving in such vessel
shall be deemed to all intents men and officers of the Royal Navy,
and shall accordingly be subject to all enactments and regula-
tions for the time being in force for the discipline of the Royal
Navy.

7. It shall be lawful for Her Majesty in Council from time to
time as occasion requires, and on such conditions as seem fit, to
authorise the Admiralty to accept any offer for the time being
made or to be made by the Government of a colony to place at
Her Majesty's disposal for general service in the Royal Navy the
whole or any part of the body of volunteers, with all or any of
the officers, raised and appointed by that Government in accord-
ance with the provisions of this Act; and when any such offer is
accepted, such of the provisions of the Act of 1859 as relate to
men of the Royal Naval Reserve raised in the United Kingdom
when in actual service shall extend and apply to the volunteers
whose services are so accepted.

8. The Admiralty may, if they think fit, from time to time by
warrant authorise any officer of Her Majesty's Navy of the rank
of captain or of a higher rank to exercise, in the name and on
the behalf of the Admiralty, in relation to any colony, for such
time and subject to such limitations, if any, as the Admiralty
think fit, any power exercisable by the Admiralty under this Act.

9. Nothing done under this Act by Order in Council, or by the
Admiralty, or otherwise, shall impose any charge on the revenues
of the United Kingdom, without express provision made by Par-
liament for meeting the same.

10. Nothing in this Act shall take away or abridge any power
vested in or exercisable by the Legislature or Government of
any colony.

14. NAVAL DISCIPLINE (DOMINION FORCES) ACT, 1911.

1-2 Geo. V. cap. 47 (Imp.).
An Act to declare the effect of the Naval Discipline Acts when
applied ty the legislatures of self-governing Dominions to the
Naval Forces raised hy such Dominions.

[16th Deceml)er, 1911.]
Be it enacted by the King's most Excellent Majesty, by and
with the advice of the Lords Spiritual and Temporal, and Com-

1056 CANADIAN constitution: appendix b.

mons, in this present Parliament assembled, and by the authority
of the same, as follows: —

1. — (1) Where in any self-governing dominion provision has
been made (either before or after the passing of this Act) for
the application to the naval forces raised by the dominion of
the Naval Discipline Act, 1866, as amended by any subsequent
enactment, that Act, as so amended, shall have effect as if
references therein to His Majesty's Navy and His Majesty's ships
included the forces and ships raised and provided by the do-
minion, subject, however —

(a) in the application of the said Act to the forces and ships
raised and provided by th6 dominion, and the trial by
court-martial of officers and men belonging to those
forces, to such modifications and adaptations (if any) as
may have been or may be made by the law of the do'
minion to adapt the Act to the circumstances of the
dominion, including such adaptations as may be so made
for thQ purpose of authorising or requiring anything,
which under the said Act is to be done by or to the Ad-
miralty or the Secretary of the Admiralty, to be done by
or to the Governor-General or by or to such person as
may be vested with the authority by the Governor-
General in Council; and
(6) in the application of the said Act to the forces and ships
of His Majesty's Navy not raised and provided by a self-
governing dominion, to such modifications and adapta-
tions as may be made by His Majesty in Council for the
purpose of regulating the relations of the last-mentioned
forces and ships to the forces and ships raised and pro-
vided by the self-governing dominions or any of them:

Provided that, where any forces and ships so raised and pro-
vided by a self-governing dominion have been placed at the dis-
posal of the Admiralty, the said Act shall apply without any such
modifications or adaptations as aforesaid.

(2) This Act shall not come into operation in relation to the
forces or ships raised and provided by any self-governing do-
minion, unless or until provision to that effect has been made in
the dominion.

(3) For the purposes of this Act, the expression " self-govern-
ing dominion " means the Dominion of Canada, the Common-
wealth of Australia, the Dominion of New Zealand, the Union of
South Africa, and Newfoundland.

2. This Act may be cited as the Naval Discipline (Dominion
Naval Forces) Act, 1911.

AEMY (annual) ACT, 1913. 1057

15. ARMY (ANNUAL) ACT, 1913.

3 Geo. V. cap. 2 (Imp.).

An Act to provide, during Twelve Months, for the Discipline and

Regulation of the Army.

[25th April, 1913.]

Whereas the raising or keeping of a standing army within
the United Kingdom of Great Britain and Ireland in time of
peace, unless it be with the consent of Parliament, is against
law:

And whereas it is adjudged necessary by His Majesty and this
present Parliament that a body of forces should be continued for
the safety of the United Kingdom and the defence of the posses-
sions of His Majesty's Crown, and that the whole number of such
forces should consist of one hundred and eighty-five thousand six
hundred including those to be employed at the depots in the
United Kingdom of Great Britain and Ireland for the training
of recruits for service at home and abroad, but exclusive of the
numbers actually serving within His Majesty's Indian posses-
sions:

And whereas it is also adjudged necessary for the safety of the
United Kingdom, and the defence of the possessions of this realm,
that a body of Royal Marine forces should be employed in His
Majesty's fleet and naval service, under the direction of the
Lord High Admiral of the United Kingdom or the Commissioners
for executing the office of Lord High Admiral aforesaid:

And whereas the said marine forces may frequently be quar-
tered or be on shore, or sent to do duty or be on board transport
ships or vessels, merchant ships or vessels, or other ships or
vessels, or they may be under other circumstances in which they
will not be subject to the laws relating to the government of His
Majesty's forces by sea:

And whereas no man can be forejudged of life or limb, or
subjected in time of peace to any kind of punishment within
this realm, by martial law, or in any other manner than by the
judgment of his peers and according to the known and estab-
lished laws of this realm; yet, nevertheless, it being requisite,
for the retaining all the before-mentioned forces, and other per-
sons subject to military law, in their duty, that an exact discip-
line be observed, and that persons belonging to the said forces
who mutiny or stir up sedition, or desert His Majesty's service,
or are guilty of crimes and offences to the prejudice of good
order and military discipline, be brought to a more exemplary
and speedy punishment than the usual forms of the law will
allow:

CAN. CON. — 67

1058 CANADIAN constitution: appendix b.

And whereas the Army Act will expire in the year one
thousand nine hundred and thirteen on the following days: —

(a) In the United Kingdom, the Channel Islands, and the
Isle of Man, on the thirtieth day of April; and

(6) Elsewhere, whether within or without His Majesty's do-
minions, on the thirty-first day of July:

Be it therefore enacted by the King's most Excellent Majesty,
by and with the advice and consent of the Lords Spiritual and
Temporal, and Commons, in this present Parliament assembled,
and by the authority of the same, as follows: —

1. This Act may be cited as the Army (Annual) Act, 1913.

2. — (1) The Army Act shall be and remain in force during
the periods hereinafter mentioned, and no longer, unless other-
wise provided by Parliament (that is to say): —

(a) Within the United Kingdom, the Channel Islands, and

the Isle of Man, from the thirtieth day of April, one
thousand nine hundred and thirteen to the thirtieth day
of April one thousand nine hundred and fourteen, both
inclusive; and

(b) Elsewhere, whether within or without His Majesty's do-

minions, from the thirty-first day of July one thousand
nine hundred and thirteen to the thirty-first day of July
one thousand nine hundred and fourteen, both inclusive.

(2) The Army Act, while in force, shall apply to persons
subject to military law, whether within or without His Majesty's
dominions.

(3) A person subject to military law shall not be exempted
from the provisions of the Army Act by reason only that the
number of the forces for the time being in the service of His
Majesty, exclusive of the marine forces, is either greater or less
than the number hereinbefore mentioned.

3. There shall be paid to the keeper of a victualling house
for the accommodation provided by him in pursuance of the Army
Act the prices specified in the First Schedule to this Act.

Amendments of the Army Act.

4. The officers who may be authorised to issue a billeting
requisition under section one hundred and eight A of the Army
Act shall include general or field officers commanding any part
of His Majesty's forces in any military district or place in the
United Kingdom, and accordingly in sub-section (1) of that
section, for the words " any general or field officer commanding
His Majesty's regular forces," there shall be substituted the
words " any general or field officer commanding any part of His
Majesty's forces."

ARMY (annual) ACT, 1913.

1059

5. The power of requisitioning carriages, horses, and vessels
in case of emergency conferred by the Army Act shall extend so
as to include a power of requisitioning aircraft of all descriptions
and accordingly at the end of sub-section (2) of section one
hundred and fifteen of the Army Act there shall be inserted
the words "and also of aircraft of every description;" and the
consequential amendments specified in the second column of the
Second Schedule to this Act shall be made in the enactments
mentioned in the first column of that schedule.

6. In section one hundred and forty-five of the Army Act
(which relates to the liability of a soldier to maintain his wife
and children) after the words " order a portion " there shall be
inserted the words " not exceeding in respect of a wife and chil-
dren one shilling and sixpence, and in respect of a bastard child
one shilling, of the daily pay of a warrant officer not holding an
honorary commission."

7. In section one hundred and sixty-four of the Army Act
(which relates to the evidence of civil conviction and acquittals)
after the word " judgment " there shall be inserted the words
" or order;" for the words " if he was convicted, and the acquittal
if he was acquitted " there shall be substituted the words " or if
he was acquitted the acquittal;" and after the word " sentence"
there shall be inserted the words " or cf the order of the court."

SCHEDULES.

FIRST SCHEDULE.

Accommodation to be provided.

Lodging and attendance for soldier where
meals furnished.

Breakfast as specified in Part I. of the second
Schedule to the Army Act.

JJinner as so specified

Supper as so specified

Where no meals furnished, lodging and at-
tendance, and candles, vinegar, salt, and the
use of fire, and the necessary utensils for
dressing and eating his meat.

Stable room and ten pounds of oats, twelve
pounds of hay, and eight pounds of straw
per day for each horse.

Stable room without forage

Lodging and attendance for officer

Maximum Price.

Sixpence per night.

Fivepence each.

One shilling and one
penny each.

Threepence each.

Sixpence per day.

One shilling and nine-
pence per day.

Sixpence per day.

Two shillings per
night.

1060

CANADIAN constitution: APPENDIX C.

SECOND SCHEDULE.
Amendments consequential on Amendment to Section 115.

Provision of Army
Act to be modified.

Modification to be made.

Section 31 (1), (4)
(5), (7), (8).

Section 115 (3), (4),
(6), (7), (8), (9).

Sections 116, 117,
119, and 1^1.

For the words " or vessels " wherever they

occur there shall be substituted the words

** vessels or aircraft."
For the words " or vessel " wherever they

occur there shall be substituted the words

" vessel or aircraft."

For the words " and vessels " wherever they
occur there shall be substituted the words
" vessels and aircraft."

For the word " vessels " where it secondly and
thirdly occurs in sub-section (3) there shall
be substituted the words " vessels and air-
craft."

For the words " or vessel " wherever they
occur there shall be substituted the words
" vessel or aircraft."

For the words " or vessels " there shall be
substituted the words " vessel or aircraft."

For the words " or vessels " wherever they

occur there shall be substituted the words

" vessels or aircraft."
For the words " or vessel " wherever they

occur there shall be substituted the words

" vessel or aircraft."

C. ENGLISH LAW INTRODUCTION'.
(See Chap. XIV.)

Table of British Statutes,

The Operation of which in the Colonies has been in question in
the Courts.

Magna Charta: Enforced in Nova Scotia (Meisner v. Fanning, 2
Thomp. 97; The Dart, Stewart, 44). Printed with R. S.
British Columbia (1897) p. xvii.

Hen. III. (Charters of) : Enforced Nova Scotia (Meisner v. Fan-
ning, 2 Thomp. 97).

13 Ed. I. c. 18 (Elegit): In force in Nova Scotia (Caldwell v.
Kinsman, James, 398).

18 Ed. I. (St. 1) c. 1 (quia emptores): Printed in R. S. B. C.
(1897) p. xliii.

27 Ed. III., c. 17 (Stat, of Staples): Enforced in Nova Scotia
(The Dart, Stewart).

BRITISH statutes: OPERATION QUESTIONED. 1061

28 Ed. III., c. 13 (Aliens) : Not in force in Nova Scotia (Reg. v.
Burden, 1 Old. 126).

1 Richard II., c. 12 (escape): In force in Nova Scotia; not in

force in Nevt Brunswick (Wilson v. Jones, 1 Allen 658;
and see James v. McLean, 3 Allen 164, and Doe d. Allen
V. Murray, 2 Kerr 359).

2 Hen. IV., c. 7 (nonsuit) : In force in Nova Scotia (Grant v. Pro-

tection Ins. Co., 1 Thomp. 12, 2nd ed.).
8 Hen. VI., c. 29 (aliens) : Not in force in Nova Scotia (Reg. v.
Burden, 1 Old. 126).

7 Hen. VIII., c. 4 (damages, replevin) : In force in Nova Scotia

(Freeman v. Harrington, 1 Old. 358).

8 Hen. VIII., c. 16 (forfeiture) : In force in Nova Scotia (ante,

p. 278).

18 Hen. VIII., c. 16 (forfeiture) : In force in Nova Scotia (ante,
p. 278).

25 Hen. VIII., c. 22 (marriage) : In force in Ontario (Hodgins
v. McNeil, 9 Grant, 309).

27 Hen. VIII., c. 10 (uses): In force in Nova Scotia (Shey v.
Chisholm, James, 52) ; in New Brunswick (Doe d. Han-
ington v. McFadden, Berton, 153) ; in Ontario (see ante,
p. 286) ; printed in R. S. B. C. (1897) p. xlv.

27 Hen. VIII., c. 10 (enrolment): Not in force in Nova Scotia

(Berry v. Berry, 4 R. & G. 66) ; in force in New Bruns-
wick (Doe d. Hanington v. McFadden, Berton, 153).

28 Hen. VIII., c. 7 (marriage) : In force in Ontario (Hodgins v.

McNeil, 9 Grant 309).
28 Hen. VIII., c. 16 (marriage) : In force in Ontario (Hodgins v.
McNeil, 9 Grant 309).

31 Hen. VIII., c. 1 (partition): In force in Nova Scotia (Doane

V. McKenny, James, 328; ante, p. 280).

32 Hen. VIII., c. 32 (partition) : In force in Nova Scotia (Doane

V. McKenny, James, 328; ante, p. 280).
32 Hen. VIII., c. 9 (pretended titles) : In force in Nova Scotia

(ante, p. 280) ; (Beasley v. CaMll, 2 U. C. Q. B. 320).
32 Hen. VIII., c. 34 (leases) : Printed in R. S. B. C. (1897) p. li.
32 Hen. VIII., c. 38 (marriage) : In force in Ontario (Hodgins v.

McNeil, 9 Grant 309).

32 Hen. VIII., c. 39 (relief to Crown debtors) : In force in New

Brunswick (Reg. v. Applehy, Bert. 397).

33 Hen. VIII., c. 39 (lien for Crown debts) : Not in force in Nova

Scotia (Uniacke v. Dickson, James, 287); in force in
New Brunswick (Rex v. McLaughlin, Steven's Dig.
N. B.).

1062 CANADIAN constitution: appendix c.

5 & 6 Ed. VI., c. 16 (sale of offices) : In force in Ontario (Reg. v.

Mercer, 17 U. C. Q. B. 602 ; and see Foote v. Bullock, 4

U. C. Q. B. 480; Reg. v. Moodie, 20 U. C. Q. B. 389).
1 & 2 Philip & Mary, c. 13 {habeas corpus) : Printed in R. S. B. C.

(1897) p. xxxvi.
5 Eliz., c. 4 (apprentices) : Not in force in Ontario (Fish v. Doyle,

Drap. 328; Dillingham v. Wilson, 6 U. C. Q. B. (O. S.) 85 :

Shea V. Choat, 2 U. C. Q. B. 211).
13 Eliz., c. 4 (lien for Crown debts) : Not in force in Nova Scotia

(Uniacke v. Dickson, James, 287).
13 Eliz., c. 5 (fraudulent conveyances) : In force in Nova Scotia

(ante, p. 280).
18 Eliz., c. 5 (Qui tarn actions): In force in Ontario (Garrett v.

Roberts, 10 Ont. App. 650).
29 Eliz., c. 4 (sheriff's costs) : Not in force in New Brunswick

(Kavanagh v. Phelon, 1 Kerr, 472).
43 Eliz., c. 6 (costs) : In force in New Brunswick (Kelly v. Jones,

2 Allen, 473).
21 Jac. 1, c. 14 (forfeiture): In force in Nova Scotia (Smyth v.

McDonald, 1 Old. 274).
1 Car. 1, c. 1 (Lord's Day) : See R. S. B. C. (1897), c. 177.

3 Car. 1, c. 1 (Lord's Day): See R. S. B. C. (1897), c. 177.

16 Car. 1, c. 10 (Star Chamber) : Not in force in Ontario (Stark

V. Ford, 11 U. C. Q. B. 363).
13 Car. II., c. 2 (costs): In force in New Brunswick (Gilbert v.

Sayre, 2 Allen, 512).
29 Car. II., c. 3 (Statute of Frauds): Printed as c. 85 of R. S.

B. C. 1897; in force in Ontario (see ante, p. 286): Not

introduced into Manitoba originally (see ante, p. 295).
29 Car. II., c. 7 (Lord's Day) : See R. S. B. C. (1897) c. 177.
31 Car. II., c. 2 (habeas corpus) : Printed with R. S. B. C. (1897)

p. xxix.
1 Wm. & Mary, c. 18 (disturbing religious meeting) : In force in

Ontario (Reid v. Inglis, 12 U. C. C. P. 191).
9 & 10 Wm. III., c. 15 (awards) : In force in British Columbia

(In re Ward d Victoria Waterworks, 1 B. C. (pt. 1) 114).
1 Anne (st. 2), c. 6 (escape) : Not in force in Ontario (Hesketh v.

Ward, 17 U. C. C. P. 667).

4 Anne, c. 16 (bail bonds) : In force in New Brunswick (see Doe

d. Hanington v. McFadden, Berton, 153).

5 Anne, c. 9 (escape) : Not in force in Ontario (ante, p. 290).

7 Geo. II., c. 20 (foreclosure) : Printed as c. 141, R. S. B. C. 1897.
9 Geo. II., c. 5 (fortune telling) : In force in Ontario (Reg. v.

Milford, 20 O. R. 306).
9 Geo. II., c. 36 (mortmain) : Not in force in New Brunswick

(Doe d. Hagen v. Rector of St. James, 2 P. & B. 479);

BRITISH STATUTES: OPERATION QUESTIONED. 1063

in force in Ontario (ante, p. 287); not in force in
Grenada (Atty.-Genl. v. Stewart, 2 Mer. 142), nor in
N. S. Wales (Whicker v. Hume, 7 H. L. Cas. 124; 28 L, J.
Chy. 396) ; nor in Victoria (Mayor of Canterbury v.
Wyburn (1895) A. C. 89; 64 L. J. P. C. 36); nor in
Honduras (Jex v. McKinney, 14 App. Cas. 77; 57 L. J.
P. C. 67).

13 Geo. II., c. 18 (certiorari) : Not in force in Nova Scotia (ante,

p. 279); nor in New Brunswick (ante, p. 282-3, note);
in force in British Columbia (see R. S. B. C. (1897)

c. 42) ; and in Ontario (see ante, p. 279, note).

14 Geo, II., c. 17 (nonsuit) : In force In New Brunswick (see Doe

d. Hanington v. McFadden, Berton, 153).

19 Geo. II., c. 37 (marine insurance) : Printed as c. 105 R. S. B. C.

1897.

20 Geo. II., c. 19 (apprentices) : Not in force in Ontario (see 5

Eliz., c. 4, supra). See R. S. B. C. (1897) c. 8.
22 Geo. II., c. 40 (sale of liquor) : Not in force in Ontario (Leith

V. Willis, 5 U. C. Q. B. (O. S.) 101; Heartley v. Hearns,

6 U. C. Q. B. (O. S.) 452).
22 Geo. II., c. 46 (attorneys): In force (in part) in Ontario

(Dunn V. O'Reilly, 11 U. C. C. P. 404).
26 Geo. II., c. 33 (marriage) : In force in Ontario (see ante, p.

288); not in force in N. W. T. quoad Indians (Reg. v.

Nan-e-quis-a Ke, 1 T. L. R. 211).
9 Geo. III., c. 16 (Nullum Tempus Act) : In force in Ontario

(Reg. V. McCormick, 18 U. C. Q. B. 131) ; in N. S. Wales

(Atty.-Oen'l v. Love (1898) A. C. 679; 67 L. J. P. C. 84).
14 Geo. III., c. 48 (life insurance) : Printed as c. 203 of R. S. B.

C. 1897.
14 Geo. III., c. 78 (fire spreading): In force in Ontario (C. 8.

Ry. V. Phelps, 14 S. C. R. 132) ; in British Columbia

(Laidlaw v. Crow's Nest, dc, Ry., 14 B. C. 169; 42 S. C.

R. 169.
19 Geo, III., c. 70 (certiorari): In force in Ontario (Baldwin

V. Roddy, 3 U. C. Q. B. (O.S.) 166; and see Gregory v.

Flanagan, 2 U. C. Q. B. (O.S.) 552).

21 Geo. III., c. 49 (Lord's Day) : In force in Ontario (Reg. v.

Barnes, 45 U. C. Q. B. 276).

26 Geo. III., c. 86 (fire on ships): In force in Ontario (Tor-
rance V. Smith, 3 U. C. C. P. 411; Hearle v. Ross, 15 U.
C. Q. B. 259).

28 Geo. III., c. 49 (magistrates) : Not in force in Ontario (Reg.
\. Rowe,UV. C. C. P. Z07).

28 Geo. III., c. 56 (marine insurance) : printed as c. 105 R. S.
B. C. 1897.

1064 OAlsTADIAN CONSTITUTION: APPENDIX C.

39-40 Geo. III., c. 98 (Thellusson Act) : Printed as c. 2 R. S. B. C.
1897.

43 Geo. III., c. 140 (habeas corpus): Printed with R. S. B. C.

(1897) p. xxxvi.

44 Geo. III., c. 102 (habeas corpus): Printed with R. S. B. C.

(1897) p. xxxvii.
56 Geo. III., c. 100 (habeas corpus): Printed with R. S. B. C.
(1897) p. xxxviii.

I & 2 Vic. c. 45 (habeas corpus) : Printed with R. S. B. C. (1897)

p. xli.

II Geo. IV & 1 Wm. IV., c. 68 (stage coaches) : Printed as c. 37

of R. S. B. C. (1897).
1 & 2 Wm. IV., c. 32 (Lord's Day): See R. S. B. C. (1897) c. 177.
3 & 4 Wm. IV., c. 105 (dower) : In force in British Columbia

(see R. S. B. C. (1897) c. 63).

I & 2 Vic. c. 110 (int. on Judgments) : In force in British Col-

umbia (Foley V. Webster, 3 B. C. 30).
8 & 9 Vic. c. 106 (real property) : Printed in R. S. B. C. (1897)
p. liii.

II & 12 Vic. c. 49 (Lord's Day) : See R. S. B. C. (1897) c. 177.
13 & 14 Vic. c. 23 (Lord's Day) : See R. S. B. C. (1897) c. 177.

17 & 18 Vic. c. 113 (Administration) : Printed as c. 140, R. S. B. C.

1897.
20-21 Vic. c. 43 (appeal from summary conviction) : In force in

British Columbia (Reg. v. Ah-Pow 1 B. C. (pt. 1) 147).
20-21 Vic. c. 85 (divorce) : In force in British Columbia (see R.

S. B. C. 1897 c. 62.
21-22 Vic. c. 108 (divorce) : In force in British Columbia (see R.

S. B. C. 1897 c. 62.

INDEX.

ACT OF SETTLEMENT.

Passed in 1700, 7.
ACTIOIs^S.

Limitation of — see Limitation of Actions.
ACTS.

British in force in Canada — see Imperiai. Acts.
ACTS OF STATE.

Legality of inquiry by Courts, 144.
AD MEDIUM FILUM.

Rule of, 703.
ADMINISTRATION OF JUSTICE.
British Columbia, 516.
Canadian Judicial System, 510.
Judicature, 311, 509, 882.
New Brunswick, 514.
Nova Scotia, 516.
Ontario, 515.

Powers of Parliament, 508.
Powers of Provincial Legislatures, 508, 510.
Quebec, 513.
See Appeal — Courts — Judicature.
ADMIRALTY.

Colonial Courts Act, 1849, 978.
Colonial Courts Act, 1890, 984.
Colonial jurisdiction, 237. /

Collision cases, 240.
Exchequer Court of Canada, 239.
Imperial jurisdiction, 232.
Civil jurisdiction, 235.
Criminal jurisdiction, 232.
See Navigation and Shipping.
ADMISSIONS OF OTHER BRITISH COLONIES, 890.
British Columbia, order admitting, 23, 600, 905.

Address of Senate, re, 906.
Prince Edward Island, admission of, 24, 600, 912.

Address to Queen, re, 914.
Rupert's Land, admission of, 893, 898.

1066 INDEX.

ADVISEES OP CB0W:N^.

Courts are legal advisers^ 594.
AGRICULTURE, 410, 669, 773, 776, 882.
ALBERTA.

Act estaJblishing province, 24, 601, 860, 919, 9J57.
Cases on introduction of English Law, 293.
Education in province, 784.
ALIENS AND NATURALIZATION.
Acts respecting.

British, 4, 1004, 4014.

Colonial, 179, 671.

Imperial Act of 1870, 1004.

Imperial Act of 1914, 1014.

New Legislation as to, 165, 1014.
Aliens, status of, 1004, 1020.
Allegiance, 166.

Oath of, 892, 1024.
British Acts in force in Canada, 4, 1004, 1014.
British subjects.

Ahroad, 184.

Children of, 1008, 1018.

Married women, 1008, 4018.

Natural born, 171, 1015.

Naturalized, 183, 1006, 1015.
Bry den's case, 673.
Canadian legislation, re, 671.
Children, status of infant, 1008, 1018.
Citizenship, permanent residence does not confer, 188.
Colonial Naturalization Acts, 179. •
Decisions of Privy Council, 672.
Deportation of aliens, 106, 190, 192.
Evidence and procedure, 1020.
Exclusion of aliens, 190, 192.
Expatriation, 100-6.
Extradition of aliens, 190, 194.
Homma's case, 676.
Imperial Act of 1870, 1004.
Imperial Act of 1914, 1014.
Legislation as to

British, 4, 1004, 1014.

Colonial, 179, 671.

INDEX. 1067

ALIENS AND NATUEALIZATION— (7o?ifmi^ec?.
Legislation as to

Imperial Act of 1870, 1004.

Imperial Act of 1914, 1014.

New legislation respecting, 165, 1014.
Loss of British nationality, 1019.
Married women, status of, 10.08, 1018.
Nationality, 165, 170.
•Natural born subjects, 171, 1015.
Naturalized subjects, 173, 1006, 1015.
New legislation as to, 165, 1014.
Oath of allegiance, 892, 1024.
Parliament, powers of, 669.

Permanent residence does not confer citizenship, 188-
Powers of Parliament, 669.
Present position of aliens, 678.
Privy Council decisions on, 672.
Procedure and evidence, 1020.
Status of.

Aliens, 1004, 1020.

Children, infants, 1008, 1018.

Married women, 1008, 1018.
Subjects.

Abroad, 184.

Natural born, 171, 1015.

Naturalized, 3 73, 1006, 1015.
Supplemental provisions, 1009, 1022.
Unnaturalized aliens, 187.

ALLEGIANCE.

Oath of, 892, 1024.

ALLOTMENT.

Principle of allotment of powers, 473.

AMALGAMATION OF.

railways, 765.

AMENDMENT OF.

B. N. A. Act, 1871, 904.
B. N..A. Act, 1886, 918.

ANCILLARY LEGISLATION.
Federal, 497.
Provincial, 506.

1068 INDEX.

APPEALS.

Appellate jurisdiction, 538.
Criminal, 539.

Power of Crown-in-Conncil to hear colonial, 157.
To Governor- General, re education, 789.
To Privy Council, 267.
See CouETs.

APPOINTMENT OF.

Colonial governors, 131, 148.
Officers by Governor- General, 84'0..

ARMY AND NAVY.

Annual Army Act, Imp., 1057.
Amendment to, 1058.

Army, 201.

British Acts in force in Canada, 4, 1057, 1058.

Canada participating in Imperial Acts, 4.

Colonial Naval Defence Act, 1865, 1053.

Command of Canadian forces, 866.

Discipline Naval Act (Dominion Forces), 1055.

General observations, 209.

Eed Cross Imperial Act, 262.

Militia, military and naval service, 773, 775.

Navy, 207.
ARTIFICIAL.

Harbours, 607, 610.

ASCERTAINMENT.

Colonial Law Act, 1859, 999.

Foreign Law Act, 1861, 1001.
ASSEMBLY.

Constituent, 3.
ASSENT.

Royal, to Acts, 872.

ASSESSMENT ORDINANCES.
Rural districts, 956.
Village and town districts, 958.

ASSETS, 312, 358, 589, 640, 696, 883.

ASYLUMS, 773.

ATTRIBUTES.

Of Crown, 127.

INDEX. 1069

AUSTEALIAN.

Cases on autonomy, 401.

AUTHOEITY.

Federal paramount, 464, 468.
Spheres of, 314, 878, 880.

AUTONOMY.

Ambit.

Federal Act cannot enlarge Provincial, 380.

How determined, 352.
Australian cases on, 401.
Concurrent jurisdiction, question of, 385.
Federal Act cannot enlarge provincial ambit, 380.
Legislative jurisdiction, 378.
Necessity of conjoint action, 394.
Neither government can take property of other, 386.
Private rights, 396, 462.
United States cases on, 397.

BACKING.

Warrants — see Warrants.
BANKRUPTCY.

Imperial Acts, re, 248.

Insolvency, 798, 804.

Provincial laws touching, 811.

Territorial jurisdiction, re, 83.
BANKS, 725, 798, 800.

Savings banks, 798.

Taxation of, 685, 696.
BEACONS, 226, 696, 773.
BELL TELEPHONE CO.'S CASE, 745.
BILLS OF EXCHANGE, 798, 801.

BOUNDARIES.

Colonial Boundaries Act, 1895, 257.

BRITISH ACTS.

See Imperiai, Acts in force in Canada.

BRITISH COLUMBIA.

Administration of justice in, 516.

Cases on introduction of English law, 296.

Constitution of, 319.

Divorce jurisdiction, 544.

1070 INDEX.

BRITISH COLUMBIA— Continued.
Education in, 782.
Fisheries case, 716.
Order-in-Council admitting, 23, 600, 905.

Address of Senate, re, 906.
Eailway belt, 622.
BRITISH COMPANIES.
See CoMPAKY.

BRITISH NORTH AMERICA ACT, 1867, 863, 893.
Ambit, how determined, 352.

Federal Act cannot enlarge Provincial, 380.
Amending Act of 1871, 904.
Amending Act of 1886, 918.
Assets, 312, 358, 589, 640, 696, 883.
Admission of other British colonies, 890.
Authority, spheres of, 314, 878, 880-.
Census, 773, 774, 864.
Crown's headship not effected by Act, 1.
Debts, 312, 358, 589, 640, 696,' 883.
Executive power, 307, 308, 359, 864.
Exclusive powers of.

Parliament, 406, 878.

Provincial legislatures, 407, 880.
Federal union, principles of, 370.
Founded on Quebec resolutions, 367.
Government, responsible, 313.
Historical aids in interpretation, 364.
House of Commons, 869.
Intercolonial Railway, 313, 621, 890.
Interpretation of, 364.
Judicature, 311, 509, 882.

Legislative powers, 307, 309, 348, 349, 378, 406, 412,
866, 869.

Distribution of, 310, 406, 412, 878.
Cases under, 412, 447.
Miscellaneous provisions, 312, 886.
Money votes, 872.
Outline sketch of Act, 304-315.
Parliament, omnipotence of, 357.
Parliamentary governments, responsible, 313.
Preliminary part of Act, 305, 863.

INDEX. 1071

BEITISH NOETH AMERICA ACT— Continued.
Powers.

Executive, 307, 308, 359, 864.
Legislative, 307, 309, 348, 349, 378, 406, 412,
" 866, 869.

Distribution of, 310, 406, 412, 878.
Cases under, 412, 447.
Provincial constitutions, 308, 873.
Executive power, 308, 359, 873.
Legislative power, 309, 349, 866, 875, 878.
Quebec resolutions, basis of Act, 367.
Railway, Intercolonial, 313, 621, 890.
Responsible parliamentary government, 313.
Revenue, 312, 589, 598, 640, 696, 883.
Royal assent, 872.
Senate, the, 866.

Spheres of authority, 314, 878, 880.
Spirit of Act, 313.
Taxation, 312, 589, 639, 640, 883.

See Taxation.
Union part IL, 3=06, 864.
BRITISH PARLIAMENT.

Acts of, are all intra vires, 2.

Canadian Acts must not be repugnant to, 3, 5.
Extending to Canada — see Imperial Acts in
FORCE IN Canada.
Canada cannot legislate as to, 1, 2.
Constituent assembly, 29.
May change constitution, 3.
May legislate for colonies, 3, 51.
British view as to, 52.
Colonial view as to, 52.
Powers unlimited, 2, 51.
Supreme for British Isle, 29.
Supreme for colonies, 31.
Supreme throughout Empire, 3.
Territorial Jurisdiction, 65, 85.
BRITISH SUBJECTS.

See Aliens and Naturalization.
BUYING AND SELLING OFFICES.
Imperial Act, re, 249.

1072 INDEX.

BUOYS, 773.

CABLE.

Pacific Cable Act, Imp., 266.

CANADA.

British colony not a nation, 1, 5.
Cannot change own constitution, 1.
Cannot legislate as to Crown, 1, 2.
Judicial system, 510.

Not entitled to international recognition, 5.
Participating in Imperial loss, 4.

CANALS, 696.

CENSUS, 773, 774, 864.

CHARITIES, 773.

CHARTER.

Canadian constitution a great, 347.

CHILDREN.

See Aliens and Naturalization.

CITIZENSHIP.

See Aliens and Naturalization.

CIVIL RIGHTS.

See Aliens — Property and Civil Rights.
COAST.

British Columbia Fisheries case, 716.
Miscellaneous cases on, 717.
Sea coast and inland fisheries, 712, 773.
Trading, 229.

COINAGE, 773.

COLONIAL.

Admiralty Courts Act, 1849, 978.
Admiralty Courts Act, 1890, 984.
Boundaries Act, 1895, 257.
Governors, 131.

Appointment of, 148.
Law Ascertainment Act, 1859, 999.
Laws Validity Act, 1865, 38, 976.
Legislation, disallowance of, 149.
Legislative power, its nature, 93.
Legislatures, power re merchant shipping, 229.

INDEX. ^ 1073

COLOl^IAL— Continued.

Naval Defence Act, 1865, 1053.
Status, 1.

Tribunal Evidence Act, 1859, 997.
COMMERCIAL LAW.
Bankruptcy, 798, 804.

See Bankruptcy.
Banks, 725, 798, 800.

See Banks.
Bills of exchange, 798, 801.
Companies, winding-up, 809.

See Company.
Copyright, 798, 814.

See Copyright.
Insolvency, 798, 804.

Provincial laws touching, 811.
See Bankruptcy.
Interest, 798, 802.
Legal tender, 798.
Patents, 798, 814.
Saving banks, 798.
Trade and commerce, 798.
Weights and measures, 798, 801.
COMPANIES.

Bell Telephone Co.'s case, 745.
Canadian (Federal), 724, 737.
Banks, 725.

Incorporation, 720, 726.
Subjection of to provincial laws, 737.
Common law corporations, 718.
Enlargement of capacity, 734.
Extension beyond province, 747.
Federal, 687.

Present position of, 688.
Canadian cases on, 690.
Hydraulic Company's case, 744.
Imperial Companies Act, 250..
Objects of, 731.
Privy Council decisions, 728.
Provincial companies, 741.

CAN. CON. — 68

1074 , INDEX.

COUFA-NIES— Continued.

Railway company organization, 756.
Statutory corporations, 718.

Incorporation, 720, 726.

British, 721.

Colonial, 722.
Territorial limitations, 733.
Under Federal system, 724.
Winding-np, 809.
Works and undertakings of, 743.

CONFLICT OF LAWS.

Colourable legislation, 489.
Concurrent powers, 464, 483.

Determining scope of various classes, 472, 483.

Principle of allotment must be kept in view, 473.

Regard to character of Act, 472.
Federal authority paramount, 464, 468.

CONSEQUENT LIMITATIONS, 1.

CONSTITUENT ASSEMBLY, 3.

CONSTITUTION.
British^ 2.

British Parliament may change, 3.

Canada cannot legislate as to, 1, 2.

Crowd's headship not effected by B. N. A. Act, 1.
Dominion, 40, 46.

Canada cannot change essential framework of its
own constitution, 1.

Executive power, 307, 308, 359.

Great charter, 347.

Legislative power, 307, 348.

Similar to British, 335, 346.
See B. N. A. Act.
Provincial, 21, 39.

All in pari materia, 355.

British Columbia, 319.

Changes in legislatures, 36.

Constitutional Act, 1774, 325, 326, 817.

Constitutional Act, 1791, 326.

Distribution of legislative powers, 22.

Ijegislative power, 309, 349.

INDEX. 1075

COI^STITUTIO-N— Continued.
Provincial.

New Brunswick, 318.

Nova Scotia, 316.

Pre- Confederation constitutions, 316.

Prince Edward Island, 317.

Quebec, 318.

Quebec Act, 1774, 325, 817.
CONTRACTS.

Eailway Contracts of carriage, 755.
COPYRIGHT, 798, 814.

British Acts in force in Canada, 4, 251.

Application of to British possessions, 254.
International copyright, 256.
Territorial jurisdiction, 72.
COURTS.

Appellate jurisdiction, 538. ,

Constitution and maintenance, 519.
Criminal appeals, 539.
Divorce jurisdiction in B. C, 544.
Exchequer Court of Canada. See Admiralty.
Federal courts, 522.

Jurisdiction of, 528.

What authority confers, 525.
Legal advisers of Crown, 595.
Position of re legislative competence, 372.
Privy Council, appeals to, 157, 267.
Prize Courts Imperial Act, 1894, 267.
Procedure, 546.

In civil matters generally, 562.

In copyright cases, 556.

In criminal matters, 550. -

\ In patent cases, 555.

In provincial penal laws, 551.

Under Federal laws, 554.
Special shipping inquiries, 223.
Star Chamber Court re Royal Proclamations, 9.
Superior Courts, control by, 523.
Tribunal Evidence Act, 1859, 997.
CRIMINAL LAW, 84, 563, 589.
Appeals, 539.

1076 INDEX.

CEIMINAL LAW— Continued.

Buying and selling oflfices. Imp. Act, re, 249.

Common law offences, 583.

Crimes committed at sea, 1030.
Fugitive criminals in British possessions, 1030.
8ee Fugitive Offendeks.
— Introduction of English, in Canada, 291.
List of crimes extraditable, 1034.

See Extradition.
Pre-Confederation laws, 585.
Procedure, 550.
Provincial penal laws, 563.

Nature of punishment, 575.
Procedure in, 551.
Prohibitive laws merely, 575.
Territorial jurisdiction, re, 82.
Testing validity of, 572.
Sunday observance laws, 578. •
- Territorial jurisdiction, 84.
Warrants.

Apprehension in extradition, 10'35.
Backing of, 1042.

Bringing before police magistrate, 1036.
Committal, 1037.
Escape and warrants, 1046.
Surrender of Fugitive, 1037.
See Extradition — Fugitive Offenders.

CROSSINGS.

See Raii^way.

CROWN, THE, 2.

Acts under advice of ministers, 2, 7.

Attributes, 127.

Canada cannot legislate as to, 1, 2.

Courts legal advisers of, 595.

Demise of. Act, 258.

Duty expressed in Coronation oath, 8.

Executive head of governments, 2, 7.

In Canada, 18.

In Council Imperial, 116, 164.

In Courts, 589, 597.

INDEX. 1077

CEOWN, THE— Continued.
Headship, 127, 837.

In executive government, 128.

In legislation, 127.

Not effected by B. N. A. Act, 1.

Personal irresponsibility, 129.
Law governs, 8.
Made by law, 7.
Never acts alone, 2, 7.

No power to dispense with obligation to obey law, 8.
Not above the law, 8.
One person only swears, 7.
Part of the common law, 7.
Prerogatives of, 8, 116.
Powers of.

Foreign Relations, 134.

To appoint governors, 148.

To disallow colonial legislation, 149.

To hear appeals from colonial courts, 157.

To legislate, 148.
Settled upon Sophia of Hanover, 7.
Title of is statutory, 7.
Who may wear determined by statute, 7.

CROWN LANDS AND PROPERTY, 598, 628.
Dominion property, 605.
Federal or provincial, 601.
Indian Title, 633.
Powers of provinces over, 643.
Revenues, debts, etc, 312, 589, 598, 640, 696, 883.
Taxation of, 643.

Transferred by Imperial Government, 621.
Water records, 626.

CURRENCY, 773.

DEBTS, 312, 358, 589, 640, 696, 883.

DEFENCE.

See Army and Navy.
DEMISE OF CROWN.

Imperial Act, re, 258.
DEPORTATION.

See Aliens and Naturalization.

1078 JNDEX.

DEEELICTS.
Floating, 262.

DISCIPLINE.

See Army and Navy.

DIEECT TAXATION, 650.
See Taxation.

DISALLOWANCE.

Of Provincial Acts, 842.

DISCEIMINATION.

Provincial, re Indians, 680.

DISTEIBUTION.

Legislative powers, 22, 406, 412.
Cases under, 412, 447.
Is exhausted, 453.
See ParIvIAment.

DiyOECE. ' ^^'"^

Jurisdiction of B. C. re, 544.

DOMINION.

Constitution — see Constitution.

Parliament — see ParIvIament.

Property and lands — see Crown Lands and Property.

DEEDGES, 696.

EDUCATION, 881.
Alberta, 784.

Appeals to Governor- General-in-council, 789.
British Columbia, 782.
Manitoba, 783.
New Brunswick, 782.
North-West Territories, 788.
Nova Scotia, 782.
Ontario, 778.

Prince Edward Island, 782.
Provincial authority in, 408, 777.
Quebec, 778.

Eemedial legislation, 789.
Saskatchewan, 784.
School Assessments Ordinances, 956.

Eural districts, 956.

Village and Town districts, 958.

INDEX. * 1079

EBJJiJATlO^— Continued.

Separate School Ordinances, N. W. T., 954.

Educational councils, 954.

Religious instruction, 956.
Separate schools, 954.
Union of Public ond Separate school districts, 955.

ELEEMOSYNAEY.

Institutions, 773.

ENGLISH LAW.

Introduction of, into Canada, 371.

Alberta Cases on, 293.

As to Criminal Law, 291.

British Columbia cases on, 296.

Canadian cases on, 276.

English cases on, 272.

Manitoba cases on, 294. i

New Brunswick cases on, 281.

North- West Territories cases on, 293.

Nova Scotia cases on, 277. •

Ontario cases on, 284.

Quebec case on, 283.

Saskatchewan cases on, 293.

Table of British Statutes, 1060, 1064.

ESCAPES.

See Fugitive Offenders.

EVIDENCE.

British, foreign and colonial law, 258.
Colonial Tribunal Act, 1859, 997.
Evidence and procedure re aliens, 1026.
Fugitive offenders, evidence re, 1048.
Tribunal Evidence Act, 1859, 997.

EXCHEQUER COURT OF CANADA.

See Admiralty.

EXCLUSION.

See Aliens and Naturalization.

EXCLUSIVE POWERS.

See B. N. A. Act — ^Legislature — Parliament.

1080 INDEX.

EXECITTIVE GOVEEXMENT, 21, 307, 308, 359.
Appointments to office, 840.
Crown's headship, 837.
Disallowance of Provincial Acts, 842.^
Governor- General, 838.
Lieutenant-Governors, 844.
Pre-Confederation powers, 843.
Summoning of Parliament, 841.
See B. N. A. Act — Pakliament.

EXPATEIATION.

See Aliens and Naturalization.

EXPEOPRIATION.

Land by railways, 770.

EXTENSION.

Of works beyond Province, 747.

EXTEADITION.

Aliens, extradition of, 190, 194.
Imperial Act, 1870, 1024.

Crimes committed at sea, 1030.

Crimes extraditable, 1034.

Fugitive criminals in British possessions, 1030.

General provisions of Act, 1031.

List of crimes extraditable, 1034.

Order of Secretary of State to Police Magistrate,

1035.
Preliminary part of Act, 1025.
Eepeal of Acts, 1033.
Warrant.

Apprehension, 1035.
Bringing before Police Magistrate, 1036.
Committal, 1037.
' Surrender of fugitive, 1037.

See Fugitive Offenders.
FEDEEAL.

Authority paramount, 464, 468.
Companies.

Canadian cases on, 690.
Present position of, 688.
Constitution — see Constitution.
Crown lands — see Crown Lands and Property.

INDEX. 1081

YEBEUAL— Continued.

Officers, taxation of, 641.
Parliament — see Parliament.
Railways — see Railways.

FERRIES.

Re Navigation and shipping, 711.

FISHERIES.

Boats, fishing, 219. ^

British Columbia Fisheries Case, 716.
Cases on, 717, 820.
Navigation and shipping, 699.
Powers of Parliament over, 108.
Sea coast and inland, 712, 773.
Seal Fisheries north Pacific, 268

FLOATING.

Derelicts, 262.

FOREIGN.

Law Ascertainment Act, 1861, 1001.
Marriage Act, 263.
Relations, Crown in, 134.

FUGITIVE OFFENDERS.

British Acts in force in Canada, 4.
Imperial and Colonial Acts, 198.
Imperial Act of 1881, 1038.

Application of Act, 1049.

Backing of warrants, 1042.
Definitions, 1051.

Escapes and warrants, 1046.

Evidence, 1048.

Miscellaneous provisions, 1048.

Repeal, 1051.

Return of fugitives, 1039.

Trial of offenders, 1045.

Warrants and escapes, 1046.
backing of warrants, 1042.
See Criminal Law — Extradition.

GOVERNOR.

Colonial, 131.

appointment of, 148.

1082 INDEX..

GOYEBl^OIl— Continued.
General of Canada, 838.

Acts on advice, 865.

Appeals to, re education, 789.

Appointments of officers by, 840.

Disallowance of Provincial Acts, 842.

Instructions to, 962.

Letters patent constituting office of, 959.

S"ammoning of Parliament, 841.
Lieutenant, 844.

HARBOUES, PUBLIC, 606, 696.

Artificially created, 607.

Whatis?6i0.
HIGHWAY.

Crossings — see Eailv\^ays.
HOSPITALS, 773.

Marine, 773.

HOUSE OF COMMONS.

Constitution of House, 869.

Electoral districts, 869.

Senators not to sit in, 869.

Summoning of House, 869.
HYDRAULIC.

Company's case, 744.

IMMIGRATION, 773, 776, 882.

Powers of Parliament re, 669, 681.
Powers of Provinces re, 410.
IMPERIAL.

Admiralty jurisdiction, 232, 235.

See Admiralty.
Companies Act, 250.
Constitution — see Constitution.
Limitation, 1.

B. N". A. Act did not effect Crown's headship, 1.
Canada cannot change essential framework of her
own constitution, 1.
cannot legislate as to Imperial constitution, 1, 2.
is a British colony, 1, 5.
Territorial questions re Acts, 5.
Parliament — see British Parliament.

INDEX. 1083

IMPEEIAL ACTS IN FORCE IN CANADA.
Admiralty Colonial Courts Act, 1849, 978.
Admiralty Colonial Courts Act, 1890, 984.
Appeals to Privy Council, 267.
Army Annual Act, 1057.

Amendment to, 1058.
Bankruptcy Acts, 248.

Boundaries, Colonial Boundaries Act, 1895, 257.
Buying and selling offices, 249.
Companies Acts, 250.
Copyright Acts, 251.

Application to British possessions, 254.

International copyright, 256.
Colonial.

Admiralty Courts Act, 1849, 978.

Admiralty Courts Act, 1890, 984.

Boundaries Act, 1895, 257.

Law Ascertainment Act, 1859, 999.

Laws Validity Act, 1865, 38, 976.

Naval Defence Act, 1865, 1053.

Tribunals Evidence Act, 1859, 997.
Crown, demise of, 258.
Derelicts, floating, 262.
Evidence Acts, 258.
Extradition Act, 1870, 1024.
Floating derelicts, 262.
Foreign Law Ascertainment Act, 1861, 1001.
Foreign Marriage Act, 263.
Fugitive Offenders Act, 1881, 1038.
Geneva or Red Cross, 262.
Marriage, the Foreign Marriage Act, 263.
Medical practitioners, 265.
Naturalization Act, 1870, 1004.
Naturalization Act, 1914, 1014.

Naval Discipline (Dominion Forces) Act, 1911, 1055.
Official secrets, 266.
Pacific Cable, 266.
Privy Council appeals, 267.
Prize Courts Act, 1894, 267.
Probate, Colonial Probates Act, 1892, 268.
Red Cross, 262.

1084 INDEX.

IMPEEIAL ACTS IN FORCE m CANADA— Continued,

Seal Fisheries in North Pacific, 268.

Solicitors, Colonial Solicitors' Act, 1900, 269.

Stock, Colonial Stock Act, 270.

Territorial Waters Jurisdiction Act, 1878, 981.
IMPLIED POWEES.

Of Parliament — see Parliament.
INDIANS, 669.

Lands of, 633.

Powers of Parliament over, 669.

Provincial discrimination re, 680.

Rights and liabilities of, 679.

Title to lands, 633.
INLAND WATERS.

Canadian, 246.
INSOLVENCY.

See Bankruptcy.
INSURANCE.

Local prohibition case. 686.
INTERCOLONIAL.

Railway — see B. N. A. Act — Railways.
INTEREST, 788, 802.
INTERNATIONAL.

Recognition, Canada not entitled to, 6.
INTERPROVINCIAL TRADE.

Power to tax, 646.
See Taxation.

INTRODUCTION OF ENGLISH LAW.

See English Law.
JUDGMENT.

Provincial process to enforce, 762.
JUDICATURE, 311, 509, 882.
JUDICIAL SYSTEM, 510.
JURISDICTION.

Appellate, 538.

Concurrent, question as to, 385.

Criminal — see Cri:^inal Law.

INDEX. 1085

JURISDICTION— Con^mt^e^?.

Divorce in B. C, 544.

Federal Courts, 522, 528.

Legislative, 378.

Parliamentary — see Parliament.

Provincial, extent of, 451.

class enumeration of, 456.
distribution of powers is exhausted, 453.

Territorial — see Territorial Jurisdiction.

See Administration of Justice — Courts — Parlia-
ment.

JUSTICE.

See Administration of Justice.

KING.

See Crown.

LAKE.

Improvements re navigation and shipping, 696.

LAW ASCERTAINMENT ACT, 1359, 999.

LAWS VALIDITY ACT, 1865, 38, 976.

LEGAL TENDER, 798.

LEGISLATION.
Ancillary.

Federal, 497.
Provincial, 506.
Disallowance of, 149.

LEGISLATIVE.

Competency, position of Courts re, 372.
Power, 307, 348, 349.
Distribution of, 22.
Its nature, 93.
See B. N. A. Act — Parliament.

LEGISLATURES, PROVINCIAL.

Administration of justice, 508, 510.

Agriculture, powers over, 410.

Ancillary legislation. 506.

Conflict of laws. Federal authority paramount, 464, 468.

Concurrent jurisdiction, question of, 385.

Constituent, powers of, 34.

1086 INDEX.

LEGISLATURES, TBOYm CI Al^Continued.
Constitutional changes, 36.
Distribution of legislative powers, 22.
Education, 408.

• Exclusive powers of, 22, 407, 880.
Federal Act cannot enlarge provincial ambit, 380.
Immigration, 410.
jurisdiction.

class enumeration of, 456.

distribution of powers is exhausted, 453.

Extent of, 451.
Necessity of conjoint action, 394.
New Brunswick, 22.
Nova Scotia, 22.
Ontario, 22.

Powers re merchant shipping, 229.
Privileges of Parliament, 37, 44, 45.
Provincial constitutions, 39.
Quebec, 22.
Range of legislative powers, 34.

LIEUTENANT GOVERNORS, 844.

LIGHTHOUSES, 226, 696, 773.

LIMITATION.

Consequent, 1.

Imperial — see Imperial Limitations.

Of actions against railways, 756.

LOCAL SELF GOVERNMENT, 348.

LORD CAMPBELL^S ACT.

Territorial jurisdiction re, 81.

MACLEOD'S CASE, 101.

English cases prior to, 98.
English case since, 105.

MANITOBA.

Act establishing province of, 24, 601, 898, 903.
Cases on introduction of English Law, 294.
Education in, 783.

MARINE.

Hospitals, 773.

INDEX. 1087

MAREIAGE.

Foreign Marriage Act, Imp., 263.

MARRIED WOMEN.

See Aliens and Naturalization.

MASTER AND SERVANT.
Re railway — see Railways.

MEDICAL PRACTITIONERS.

Imperial Act, 265.
MILITIA.

See Army and Navy.

MONEY VOTES.

See B. N. A. Act.

MUNICIPAL INSTITUTIONS.

Provincial powers re, 791.

NATIONAL DEBTS, 312, 358, 589, 640, 696, 883.

NATIONALITY.

See Aliens and Naturalization.

NATURALIZATION.

See Aliens and Naturalization.

NAVIGATION AND SHIPPING.
Ad medium filum rule, 703.
Admiralty jurisdiction — see Admiralty.
British Acts in force in Canada, 4.
Canals, 696.
Dredges, 696.
' Federal and Provincial jurisdiction, 706.
' Ferries, 711.
Fisheries, 699.

Inland waters of Canada, 246.
' Lake improvements, 696.
Lighthouses, 226, 696, 773.
Merchant shipping, 211.
Merchant Shipping Act, Imp., 1894, 212.
Certificates of competency, 217.
Coasting trade, 229.
Collision regulations, 220.
Colonial Legislatures, powers of, 229.
Courts and special shipping inquiries, 223.

1088 INDEX.

NAVIGATION AND SHIFl^mG— Continued.

Delivery of goodS;, 225.

Emigrant ships, 218.

Fishing boats, 219.

Legal proceedings, 226.

Liability of shipowners, 225.

Lighthouses, 226, 696, 773.

Load lines, 222.

Masters and seamen, 215.

Mercantile marine fund, 226.

Passengers and emigrant ships, 218.

Pilotage, .226.

Powers of Colonial Legislatures, 229.

Registry, 212.

Regulations re collisions, 220.

Safety, 219.

Salvage and wreck, 225.

Seamen and Masters, 215.

Shipowners' liability, 225.

Special shipping inquiries and courts, 223.

Trade, coasting, 229.

Wreck and salvage, 225.
^Non- tidal waters, 699.

Piers, 696.

Powers of Parliament, 695.

Powers of Provinces, 695.

Public Harbours, 696.

Public vessels, 696.

Proprietary rights, 698.

Rivers, 696.

Sable Island, 696.
• Sea coast of Canada, 242.

Steamboats, 696, 697.
' Special inquiry by Courts re, 223.

• Territorial jurisdiction re, 77.
Territorial waters of Canada, 4.

Canadian sea coasts, 242.

• Inland waters of Canada, 246.

NAVY.

See Army and Navy.

INDEX. 1089

NEW BEUNSWICK, 869.

Administration of Justice in, 514.

Cases on introduction of English Law, 281.

Constitution, 318.
See Constitution.

Education in, 782.

Legislature, 22.
NOETH-WEST TEERITOEIES.

Alberta government in, 860.
See Alberta.

Cases on introduction of English Law, 293.

Education in, 788.

Government of in 1870-1873, 853.
in 1873-1876, 854.
in 1876-1877, 855.
in 1877-1887, 857.

Obtaining of by Federal government, 847.

Saskatchewan government in, 860.
See Saskatchewan.
NOVA SCOTIA, 869.

Administration of justice in, 516.

Cases on introduction of English Law, 277.

Constitution, 316.
See Constitution.

Education in, 782.

Legislature, 22.
OATHS.

Allegiance, 892, 1024.

Coronation, 8.

Senators' declaration of qualification, 893.
OFFICIAL.

Secrets Act, Imp., 266.
ONTAEIO, 869.

Administration of justice in, 515.

Cases on introduction of English law, 284.

Education in, 778.

Legislature, 22.
PACIFIC CABLE.

Imperial Act, re, 266.

CAN. CON. — 69 -f

1090 IXDEX.

PAELIAMEXT OF CA^^ADA.

British Parliament — see British Paeliamext.
Provincial Parliament — see Legislatuees Pbovin^cial.
Administration of justice, 508.
Agriculture power, re, 410, 669, 773, 776, 882.
Aliens — see Aliens and Naturalization.
Ancillary legislation, 497.
Australian cases on autonomy, 401. .
Cannot take provincial property, 386.
Concurrent jurisdiction, question of, 385.
Conflict of laws. Federal authority paramount,

464, 468.
Constituent parts of, 9.
Exclusive powers of, 406, 878.
Federal Act cannot enlarge provincial ambit, 380.
Government responsible, 313.
House of Commons, 869.
Implied powers, 493.
Jurisdiction.

Class enumeration of, 40^, 456.

Distribution of powers exhausted, 453.

Exclusive, 406, 878.

Legislative, 378.

Only over matters of common concern, 448.
Legislative powers, 307, 309, 348, 349, 378, 406, 412.

Distribution of, 310, 406, 412.
Cases under, 412, 447.
Money votes, 872.

!f^avigation and shipping powers, 695.
Necessity of conjoint action, 394.
Omnipotence of, 357.
Powers in Canada, 22.

Executive, 307, 308, 359, 864.

Legislative, 307, 309, 348, 349, 378, 406, 412,
866, 869.
Distribution of, 310,. 406, 412, 878.
Cases under, 412, 447.
Private rights, 396, 462.

Privileges, rights and immunities, 9, 37, 44, 45, 866.
Property and finance, 458.
Public service, 459.

INDEX. 1091

PAELIAMENT OF CANADA— Continued.
Eevenue, 312, 883.
Senate, 866, 867.

Spheres of authority, 314, 878, 880.
Sole right to change laws, 8.
Summoning of, 841.
Taxation, 312, 639, 883.
United States cases on autonomy, 397.
Works and undertakings, 742.

PARSON'S CASE, 815.
PATENTS, 798, 814.
PENAL LAWS, 563.

See Ceiminal Laws.

Nature of punishment, 575.

Procedure in, 551.

Prohibitive laws merely, 575.

Sunday observance laws, 578.

Territorial jurisdiction, re, 82.

Testing validity of, 572.

PENITENTIARIES, 773.
Reformatory prisons, 773.

PILOTAGE.

See Navigation and Shipping.

PIERS, 696.

POSTAL SERVICES, 773.

PRE-CONFEDERATION. '■

Constitution — see Constitution.
Criminal law, 585.
See Criminal Law.
PREROGATIVES OF CROWN.

See Crown.
PRINCE EDWARD ISLAND.

Admission of, order-in-council, 24, 600, 912.

Address to Queen, re, 914.
Constitution — see Constitution.
Education in, 782.

PRISONS.

Penitentiaries, 773.
Reformatory, 773.

1G92 INDEX.

PRIVATE RIGHTS, 396, 462.

See Autonomy — Parliament.

PRIVY oouisrciL.

Advice to GoYernor-General, 865.
Appeals to, right of, 157, ^Q'i.
Constitution of for Canada, 865.
Decisions re aliens, 672.
Re companies, 728.

PRIZE COURTS.

Imperial Act, 1894, 267.

PROCEDURE.

In aliens and naturalization, 1020.

In civil matters generally, 562.

In copyright cases, 556.

In criminal matters, 550,

In patent cases, 555.

In provincial penal laws, 551.

Under Federal laws, 554.

PROVINCIAL.

Administration of justice, 508, 510.
Companies, 741.
See Company.
Constitutidh, 39.

See Constitution.
Legislatures — see Legislature Provincial.
Parliament — see Legislature Provincial.
Penal laws — see Criminal Lav^s.
Process to enforce judgment, 762.
Railways — see Railways.
Residuum, 829, 836.

Federal laws touching, 835.

Local or private matters, 829.

Suppression of local evils, 832.

PROBATE.

Colonial Probates Act, 1892, 268.

PROCESS.

Provincial to enforce judgment, 762.

PROPRIETARY RIGHTS.

Re navigation and shipping, 698.

INDEX. 1093

PEOPEKTY AND CIVIL EIGHTS, 815-828.
Federal legislation touching, 818.
Fisheries case, 820.
Parsons case, 815.
Provincial legislation.

How far competent, 821.

How far incompetent, 821.

In the province, 823.

Some samples, 822.
Quebec Act, 1774, 325, 326, 817.

PUBLIC HARBOURS, 606, 696.
Artificially created, 607.
What is, 610.

PUBLIC SERVICES, 459, 773.

Agriculture, 410, 669, 773, 776, 882.

Asylums, 773.

Beacons, 226, 696, 773.

Buoys, 773.

Census and statistics, 773, 774.

Charities, 773.

Currency and coinage, 773.

Eleemosynary institutions, 773.

Hospitals, 773.

Marine, 773.
Immigration, 773, 776, 882.

Powers of Parliament, re, 669, 681.

Powers of provinces, re, 410.
Lighthouses, 226, 696, 773.
Marine hospitals, 773.
Military and naval service, 773, 775.

See Army and Navy.
Penetentiaries, 773.
Postal service, 773.
Quarantine, 773.
Reformatory prisons, 773.
Sable Island, 696, 773.
Sea coast and inland fisheries, 712, 773.
See Fisheries.

PUBLIC VESSELS, 696, 697.
CAN. CON. — 69a

1094 INDEX.

QUARANTINE, 773.
QUEBEC, 869.

Act of 1774, 325, 326, 817.

Administration of justice in, 513.

Cases on introduction of English law, 283.

Constitution, 317.
See Constitution.

Education in, 778.

Legislature, 22.

Resolutions basis of B. N. A. Act, 367, 965, 976.
RAILWAYS, 750.

Amalgamation of, 765.

Belt in B. C, 622.

Contracts of carriage, 755.

Crossings, 751, 769.

Expropriation of lands, 770.

Exterritorial connections, 771.

Federal and Provincial laws, 759.

Federal laws eifecting Provincial, 767.

Federal railways and provincial laws, 765.

Government, 313, 621, 890.

Highway crossings, 751, 769.

Ineffectual provincial legislation, 764.

Intercolonial, 313, 621, 890.

Legislation, re, 751.

Limitation of actions against, 756.

Master and servant, 761.

Organization of company, 756.

Provincial laws effecting, 759, 765.

Provincial process to enforce Judgment, 762.

Provincial railways and Federal laws, 767.

Relations with employees, 755.

Structural conditions, 764.

Through traffic, 687.

RED CROSS.

Imperial Act, re, 262.

REDISTRIBUTION.

Parliamentary, 42.

REFORMATORY.

Prisons, 773.

INDEX. loo's

RELIGIOUS HSHSTRUCTION.

See Education — Schools.

REMEDIAL LEGISLATION.
Re education, 789.

RESIDENCE.

See Aliens and Naturalization.

RESIDUUM, PROVINCIAL, 829, 836.
Federal laws touching, 835.
Local or private matters, 829.
Suppression of local evils, 832.

RESOLUTIONS.

Quebec conference, 1864, 367, 965, 976.

REVENUE, 312, 589, 598, 640, 696, 883.

RIVERS.

Lake improvements, 620.
Navigation and shipping, 696.

ROYAL.

Assent, 872.

Proclamations of Henry VIII., 8, 9.

RUPERT'S LAND.

Admission of, 893, 898.

RURAL DISTRICTS.

See Schools — ^Taxation.

SABLE ISLAND, 696, 773.

SALVAGE.

See Navigation and Shipping.

SASKATCHEWAN.

Act establishing province, 24, 601, 860, 937, 954.
Cases on introduction of English law, 293.
Education in, 784.
Government of, 860.
SAVINGS BANKS, 798.
See Banks.

SCHOOLS.

Assessment ordinances, 956.

Rural districts, 956.

Village and town districts, 958.
Remedial legislation, 789.

1096 INDEX.

SCHOOLS— Continued.

Separate school ordinances N. W. T., 954.
Educational council, 954.
Religious instruction, 956.
Separate schools, 954.

Union of public and separate school districts, 955.
See Education.

SEA COAST.

And inland fisheries, 712, 773.
British Columbia fisheries case, 716.
Miscellaneous cases, 717.
See Fisheries.

SEAL FISHEEIES.

North Pacific, 268.

SENATE, THE, 866.

Declaration of qualification of Senator, 893.

Deputy Speakers Act, 919.

Disqualification of Senators, 868.

Number of Senators, 868.

Qualification of Senators, 867.

Quorum, 868.

Reduction of Senators, 867.

Resignation of Senators, 868.

Speaker of Senate, appointment of, 868.

Summons of Senators, 867, 868.

Tenure of Senators, 868.

Vacancies in Senate, 868.

Voting in Senate, 869.

SEPARATE SCHOOLS.

See Education — Schools.

SERVICE EX JURIS, 105.

SHIPPING.

See Admiralty — Navigation and Shipping.

SOLICITORS.

Colonial Solicitors Act, 1900, 269.

STAR CHAMBER COURT.

Jurisdiction re breach of Royal Proclamations, 9.

STATUS.

Of aliens — see Aliens and Naturalization.

INDEX. 1097

STEAMBOATS, 696, 697.

SUBJECTS.

See Aliens and Naturalization.

SUNDAY OBSERVANCE.

See Criminal Law.

SUPERIOR COURTS.
See Courts.

TAXATION, 312, 589, 640-, 883.
Bank taxation, 685.
Crown lands, 643.
Direct taxation, 650.
Examples of provincial taxation, ^&Q.
Federal officers, taxation of, 641.
Interprovincial trade, 646.
License fees, 664.
Powers of Parliament, 639.
Powers of provinces, 639.
School Assessment Ordinance, 956.

Rural districts, 956.

Village and town districts, 958.
Territorial jurisdiction, re tax Acts, 75.
Within the province, 661.

TELEPHONE.

Bell Telephone Co.'s case, 745.

TERRITORIAL JURISDICTION.
Of British Parliament, 65, 85.
Of colonial Parliaments, 65, 91.

Bankruptcy laws, 83.

Criminal laws, 84.

Lord Campbell's Act, 81.

Navigation and shipping, 77.

Penal laws, 82.

Tax Acts, 75.

TERRITORIAL LIMITATION.

Re Canadian Acts, 5.
Re companies, 733.

1098 - INDEX.

TEREITOEIAL WATERS.

Canadian, 4.
Canadian sea coast, 243.
Inland waters of Canada, 246.
Jurisdiction Act, 1878, 981.

TRADE AN'D COMMERCE, 798.
Bank taxation, 685.
Coast trading, 229.
Federal companies, 687.
Canadian cases on, 690.
Present position of, 688.
Insurance laws, 686.
Parson^s case, 683.
Railway through traffic, 687.
Regulation of, 475, 683:

See Commercial Law — Companies — Navigation
AND Shipping.

TREATIES.

Colonial operation of, 134, 142. —

TRIAL.

See Criminal Law — Extradition — Fugitive Of-
fenders.

TRIBUNAL.

Evidence Act, 1859, 997.

UNIFORMITY OF LAWS.

New Brunswick, Nova Scotia and Ontario, 410.

UNITED STATES.

Cases on autonomy, 397.

UNNATURALIZED ALIENS.

See Aliens and Naturalization.

VESSELS.

Fishing boats, 219.
Public, 696, 697.

WARS.

British Army and Navy Acts in force in Canada, 4.
Canada participating in Imperial, 4.
See Army and Navy.

INDEX. 1099

WARRANTS.

Apprehension in extradition, 1035.

Backing of, 1042.

Bringing before police magistrate, 1036.

Committal, 1037.

Escapes and warrants, 1046.

Surrender of fugitive, 1037.

WATERS.

Non-tidal, 699.

Records, 626.

Territorial Jurisdiction Act, 1878, 981.

Territorial waters of Canada, 4.
WEIGHTS AND MEASURES, 798, 801.

WINDING-UP.

See Company.
WOMEN.

See Aliens and Naturalization.

WORKS AND UNDERTAKINGS.
Bell Telephone Co.'s case, 745.
Company undertakings, 743.
Extension beyond province, 747.
General advantage of Canada, 749.
Hydraulic Co.'s case, 744.
Local, 742.

Physical continuity, 748.
Powers of Parliament, 742.
Powers of provinces, 742. ,

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