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Full text of "The law of the Canadian constitution"

n 






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 

2> 




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. 



A. 

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 

B. 

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 

C. 

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 

D. 

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. 

F. 

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 

G. 

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. 

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 

I. 

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 

J. 

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 

K. 

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 

M. 

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. 

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. 

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. 

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 



9- 

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. 

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 

S. 

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. 

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 

U. 

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 

V. 

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 

W. 

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 



t 



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 



Y. 

Yorkshire Guarantee Corp., Re (1895), 4 B. C. R. 258 667 

Young V. Harnish, 37 N. S. R. 213 613, 615 



Z. 

Zollverein, The, 2 Jur. N. S. 429 88, 89 



4> 



THE LAW 



OF THE 



CANADIAN CONSTITUTION 



PART I 



IMPERIAL LIMITATIONS 



II 



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) 



k 



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. 

Copyright. 

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. 



I 



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. 

t 



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. 



I 



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 



v/ 



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. 



V 



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. 



I 



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.'* ^ 



fj 



" 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. 

Copyright. 

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, 


pp 


. 291-2.. 
« Taylor, 
' 27 Hen. 
«29 Car. 
" 12 Eliz. 


546. 

VIII. c. 10. 

II. c. 3. 

c. 5; 27 Eliz. c. 


4. 










^'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. 


Q. 


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 g eneral English applicati on'? 

(2) If not, or if the matter is one of reasonable 
doubt, has there been a l egislative recognitio ii_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. 



I 



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 Presbyteri an 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 class es of - ff nhpcj[;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 Dom inion Ac t imp osing upon certain exis ting 
p rovincial C ourts the duty of determining e lectio n 
petitions relating to f ederal elect ions 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 s ection 41 was held 
t o be su fficient to warrant Dominion legislation up on 
th e subject of federal electionjtria ls.^ 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 ii L 
i nsolvency litigation final, so fa r as any aimea l as 
of right was concerne d. 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 
over lapping 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 distr i:^ 
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. 

" 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 implica- 
tion or reasonable intendment be modified and limited." — per 
Sir Montague Smith. 

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. 



:7 



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 r