THE LAW

OF

THE CANADIAN CONSTITUTION

BY

W. H. P. CLEMENT, B. A., LL. B. (TOR.)

OF OSGOODE HALL, BAUBI8TEK-AT-LAW.

TORONTO :
THE CARS WELL Co. LTD., LAW PUBLISHERS, ETC.

1892.

A

u-‘

Entered according to Act of the Parliament of Canada, in the year 1802, by
WILLIAM HENRY POPE CLEMENT, at the Department of Agriculture.

CONTENTS.

PAGE,
PREFACE v

TABLE OF CASES CITED vii

INDEX TO STATUTES xv

S
ADDENDA ET CORRIGENDA xxii

PART L INTRODUCTORY.

CHAP. I. Our Political System A Comparative Examination …. 1

II. The Pre-Confederation Constitutions 25

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

PART II. THE RESULTS OF OUR COLONIAL STATUS.

CHAP. IV. What Imperial Acts affect Us-? 55

‘ V. The Sources of Our Law 75

VI. The Prerogatives of the Crown 129

” VII. Executive Checks on Colonial Legislation 145

” VIII. The Governor- General 150

IX. Colonial Legislative Power 176

PART III. THE ORIGINAL GROUP.

CHAP. X. The Division of the Field 199

” XI. Our Judicial System 223

” XII. The B. N. A. Act, 1867 241

PART IV. SUBSEQUENT GROWTH.

CHAP. XIII. The North-West Territories 549

” XIV. Manitoba 585

XV. British Columbia C04

” XVI. Prince Edward Island 617

APPENDICES . . .625

PREFACE.

In this work, I have endeavored to exhibit, in as com-
pact 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 B. N. A. Act.

No work upon the first branch of the subject is in
existence. The works of Clark and Merivale upon the
Colonies are very antiquated, and since their publication
the colonial system of the British Empire has to a very
great extent been recast. In collecting the authorities,
therefore, upon this branch of English jurisprudence into
one book, I shall, at least, have done something to lighten
the labor of those who have occasion to deal with questions
relating to our connection with the Mother Country.

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

VI PREFACE.

I have als > endeavored t<> exhibit clearly the position of
the provinces and territories acquired since 1867, and have
referred as freely to the decisions of the Courts in those
more recent additions to the Dominion as to the authorities
in the older provinces.

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

W. H. P. CLEMENT.

TORONTO,

20th Sept.,

TABLE OF CASES CITED.

A.

Abraham v. Reg., 312

Adam, lie, 406

Adamson, Can. Bank of Comm. v.,

600

Aitcheson v. Mann, 236, 402
Allen v. Hanson, 73, 394
v. Mnrray, 94
Redpath v., 179, 195, 227
Amer, Reg. v., 143, 254, 259, 303,

316

Anderson v. Dougall, 112
v. Dunn, 264
v. Kilbourn, 112
Keg. v., 185, 187
v. Todd, 96, 102, 112, 114,

120, 248

Andrew v. White, 39
Angers v. Montreal, 351, 373
Anglo Can. Mus. Pub. Co. v. Suck-
ling, 403

\, Apollo Candle Co., Powell v., 183
Appleby v. Reg., 93
Arbitration between Ontario and

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

v., 494
Attj.-Gcnl. J5. Col. v. Atty.-Genl.

Can., 307, 530, 610
Can. v. Atty.-Genl. Ont.
49, 129, 144, 173, 219,
223,306,319,321,342,
424, 431, 482, 489
v. Flint, 231
v. Montreal, 531
v. Toronto, 532
Hong Kong, v. Kwok-a-

Sing, 186, 189
N.S.Wales, McLeodv.,

218
Ont. v. Inter Bridge Co.

311
^v. Mercer, 40, 219, 307,

525, 528, 529

x v. Niagara Falls Inter.
v Bridge Co., 311

Atty.-Genl. Quebec v. Col. Bldg.
Ass., 352, 449, 450,
455, 464
\/ v. Queen’s Ins. Co.,

214, 432, 446
v. Reid, 213, 316. 428,

433, 438
v. Richard, 601
v.Stewart, 92, 103, 113,

114

v. Radloff, 410
Auchterarder Case, 56

B.

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

Toronto v. Lambe, 22, 142, L
201, 210, 213, 222, 250, 261,
328, 343, 348, 351, 364, 375,
376, 386, 401, 425, 430, 433,
43o, 454
of Upper Can. v. Betliu’ie,

69, 124

Barnes v. Reg., 126
Barrett, Winnipeg v., 493, 495, 501,

508

Barton v. Taylor, 263, 326
Bate, Mousseau v., 311, 402
Bayley, Ganong v., 238, 315, 471
Beacon Ass. Co. Penley v., 57
Beard v. Steele, 374, 387
Beasley, q.t., v. Cahill, 124
Beique, Tarte v., 481
Belford, Smiles v., 67, 403
Belisle, L’Union St. Jacques v.,
202, 207, 211, 216, 350, 384, 392,
401, 419, 485
Bell, Graham v., 91

Keighley v., 161, 187

Doyle v., 290, 465

Reg. v., 117

Teleph. Co., In re, 230, 236,

312, 403
Bennett v. Pharma. Ass. (Quebec),

348, 373, 482, 487
Reg. v., 471
Thompson v., 73
Bentinck, Oliver v., 150, 155, 160
Bermuda, The, 68

Vlll

TAliLK <>F CASKS CITKI*.

Berry v. Berry, ( ,K)
Bertrand, Reg. v., 142
U Bigge, Hill v., 150, 155, 156, 159
Birkett, Reg., ex. rcl., v. McGuire,

445

Bittle, Reg. v., 415, 474
Black, Dow v., 213, 420, 425, 433,

452, 486

Blain, Ex parte, 185
Blake, Church v., 529
Blankard v. Galdy, 84
Bleeker v. Meyers, 122
Blouin v. Quebec, 362, 482
Boardman, Reg. v., 408, 412, 481
Boosey, Jeffreys v., 185, 186
Boucher, Re, 228
Bourgoin v. M. O. & O. Ry., 454
Bowman v. Middleton, 59

Stuart v., 131

Bradshaw, Reg. v., 416, 469
Brierly, Reg. v., 191
Briton, Med. &. Genl. Life Ass.,

Re, 346, 401

Brome, Gooey v.. 361, 441
Brook v. Brook, 186
Bruneau v. Massue, 231
Brush, Re Ridsdale and, 492
Bullock, Foote v., 124
^\-Burah, Reg. v., 177, 182, 441, 481
Burdell, Reg. v., 89
Burslem, Lopez v., 185
Bustin, Ex parle, 94
Bush, Reg. v., 288
Butland v. Gillespie, 116

0.

Cahill, Beasley, </.., v., 124 Calder, Re, 581 Caldwell v. Kinsman, 91 Cameron v. Kyte, 150, 157, 159, 195 Car. pbell v. Hall, 12, 30, 104, 131, 140 Jackson v., 89 Can. Bank of Comm. v. Adamson, 600 Canada Cent., Jones v., 459, 462 Can. N. W. Land Co., Lynch v., 386, 389, 425 C. P. R., Re, 602 v. N. P. & Man, Ry., 454 C. S. Ry., Inter. Bridge Co. v., 184 . v. Jackson, 375, 458 v. Phelps, 121 Cape Breton, In re, 27 Carson. Kielley v., 263, 326 Carr v. Fire Ass Co., 121 Carr, Reg. v., 185 Cent. Vermont Ry. Co. v. St. Johns 351, :-Jsl Chamberlain, Lawless v., 117 Chandler, Reg. v., 342, 390, 398, 476 Chapleau, Molson v., 312 Chaveau, Cote v., 473 Chisholm, Shey v., 90 Choat, Shea v., 99 Church v. Blake, 529 v. Fenton, 404, 531 Citizens v. Parsons, 96, 105, 206, I/ s 207, 210, 213, 345, 351, 353, 356, 381, 407, 420, 455, 460, 464, 467, 511 Clark, Shoolbred v., 394, 459 v. Union Fire Ins. Co., 451 Clarkson v. Ont. Bank, 395, 397 v. Ryan, 516 Re Claxton, 582 Cleveland v. Melbourne, 489 Coll. of Phys., Reg. v., 67 Col. Bldg. Ass. v. Atty.-Genl. (Que- bec), 353, 450, 455, 464 Commercial Bank, Moulson v., 108 Windsor v., 387 – Comyn v. Sabine, 152, 159 Connolly v. Woolrich, 581 Gooey v. Brome, 361, 441 Coote, Reg. v., 238, 470 Cooper, Smith v., 104 Cope v. Doherty, 185, 186 Corby v. McDaniel, 125 Cote v. Chaveau, 473 v. Watson, 401 Cowan v. Wright, 536 Craw v. Ramsay, 56, 184, 192, 24 5 Crawford v. Duffield, 434 C. V. Ry. Co. v. G. W. Ry. Co., 455 Grombie v. Jackson, 393 Cronyn v. Widder, 125 Curtis v. Hutton, 111 Gushing v. Dupuy, 216, 237. 253, 349, 391, 399, 402, 465 D. Danaher v. Peters, 360, 364, 366 Dansereau, E.r parte, 327 Dart, The, 90 Davidson v. Boomer, 112 Queddy Riv. Driv. Boom Co. v., 383, 489, 535 De Coste, Reg. v., 416 De Grosbois, Willard v. 285 Derbyshire, Gabriel v., 65 Despard, Wilkins v., 155 De St. Aubyn v. Lafrance, 362 TABLE OF CASES CITED. IX De Veber, Re, 398 Diblee, Whittier v., 476 . Dickson, Uniacke v., 77, 88, 90, 94, 127 Dillingham v. Wilson, 98 Doane v. McKenney, 90 4,Dobie v. Temporalities Board, 50, 200, 258, 319, 459, 535 Doherty, Cope v., 185, 186 Donegani v. Donegani, 406 Dougall, Anderson v., 112 Dow v. Black, 213, 420, 425, 433, 452, 486 Doyle v. Bell, 290, 465 Fish v., 98 Duclman, Kinney v.. 396 Duffield, Crawford v., 434 Dulmage v. Douglas, 434 Duncan, Ex parte, 472 Dunn, Anderson, v., 264 v. O’Bielly, 122 Dupuy, Cushing v., 216, 237, 253, 349, 391, 399, 402, 465 E. Eden, Le Caux v., 83 Eldorado Union Store Co., Re, 394 Eli, Keg. v. 415 Ellis, Ex parte, 47G European & N. A. Ry. Co v. Thomas, 452. Evans v. Hudon, 380 v Eyre, Phillips v., 59, 140, 178, 195 Reg. v., 67, 159 Exchange Bank v. Reg., 136, 138, 141, 234, 245 F. Fabrigas v. Mostyn, 152, 153, 155, 159 Fama, The, 69 Fanning, Meisner v., 87 Farewell, The, 231, 250, 384 Fen ton, Church v., 404, 531 Ferguson v. Gibson, 113 Fire Ass., Carr v., 121 Fish v. Doyle, 98 Fisher, Georgian B. Trans. Co. v., 73 Flanagan, Gregory v., 100 Flint, Atty.-Genl. v., 231 Foote v. Bullock, 124 Ford, Stark v., 116 Fraser v. Morrow, 69 Fredricton v. Reg., 206, 349, 363, 370, 407, 616 CAN. CON. B Free v. McHugh, 492 Freeman v. Harrington, 91 v. Morton, 91 Friends Adventure, The, 69 Frontenac v. License Com., 436 Fuller, Gordon v., 56, 60 Hambly v., 112 Fulton v. James, 126 G. Gabriel v. Derbyshire, 65 Galdy, Blankard v., 84 i Gamble & Boulton, Reg. v., 113, 327 Ganong v. Bayley, 238, 315, 471 Gardiner v. Gardiner, 61 Garrett v. Roberts, 122 Gaston v. Wald, 121 Georgian B. Trans. Co. v. Fisher, 73 Gibson, Ferguson v., 113 v. McDonald, 232, 315 Gilbert v. Sayre, 93 Gillespie, Butland v., 116 Mer. Bankv., 395 Glynn v. Houston, 155 Gold Comtnrs, Reg. v., 616 Goodall, Hall v., 69 Gcodhue, In re, 59, 181, 189, 193, 462 Gordon v. Fuller, 56, 60 Gore, Wyatt v., 155 G. T. R., Monkhouse v., 375, 457 Graham v. Bell, 91 Grainger v. School Trustees, 494 Grant v. Protection Ins. Co., 91 G. W. Ry. Co., C. V. Ry. v., 455 Green, Holman v., 530 Gregory v. Flanagan, 100 Griffith v. Rioux, 370 Page v., 473 Paige v., 482 Pope v., 472 ^ H. Haldimand, McBeth v., 159 Hall, Campbell v., 12, 30, 104, 131, 140 v. Gooda-11, 69 Hallock v. Wilson, 112 Hambly v. Fuller, 112 Hanson, Allen v., 73, 394 Harrington v. McFadden, 90, 92 Harding v. Mayville, 493 Plarrison v. Spencer, 58 Harris and Hamilton, Re, 372 Hart v. Missisquoi, 361 v. Meyers, 122 TABLE OF CASES CITED. Harrington, Freeman v., 91 Harvey v. Lord Aylmer, 155 Hasen v. Hector St. James, 93 Hearle v. Koss, 122 Heartly v. Hearns, 100 Henderson, Scott v., 88. 91 Hesketh v. Ward, 93, 120 Hewston, Mercer v., 112 Hill v. Bigge, 150, 155, 156, 159 u Hodge v. Keg.. 182, 202, 213, 261, 324, 358, 363, 364, 370, 425, 474, 480, 481, 486 Hodgins v. McNeil, 73, 118 Holman v. Green, 530 Holmes v. Temple, 350, 379 Homer, Reg. v., 470, 538 Houston, Glynn v., 155 Hudon, Evans v., 380 Hughes, McDiarmid v., 456 Hume, Whicker v., 114 Hutton, Curtis v., Ill I Illidge, Santos v., 57 Inglis, Reid v., 125 v lnt. Bridge Co. v. C. S. Ry., 184 Atty.-Genl. v., 311 J. Jackson, C. S. Ry. v., 375, 458 Crombie v., 393 v. Campbell, 89 James, Fulton v., 126 v. McLean, 58, 94 Jeffreys v. Boosey, 185, 186 Johnson v. Poyntz, 398, 476 Johnstone v. Parker, 117 Jones v. C. Cent. Ry., 459, 462 Kelly v., 93 Wilson, v. 94 K. Kavanagh v. Phelon, 93 Keefe v. McLennan, 360, 361, 443 Keefe, Reg. v., 582 Kelly v. Jones, 93 Keighley v. Bell, 161, 187 Kennedy, O’Connor v., 119 v. Toronto, 531 Keyn, Reg. v., 57, 186, 187 Kielley v. Carson, 263, 326 Kilbourne v. Thompson, 264 Anderson v., 112 King’s, Justices of, Reg. v.,360, 443 Kinney v. Dudman, 396 Kinsman, Caldwell v., 91 Kwok-a-Sing, Atty.-Genl. Hong Kong v., 186, 189. Kyte, Cameron v., 150, 157, 159, 195 L. Lafrance, De St. Aubyn v., 362 Lake, Reg. v., 415 Lambe, Bank Toronto v., 22, 142, 201, 210, 213y 222, 250, 261, 328, 343, 372, 383, 386, 401, 425, 433, 454 Molson v., 364 Landers, Woodworth v., 264 Landry, Theberge v., 171, 253, 286, 325, 336, 341, 464 Langlois, Valin v., 217, 231, 280, 287, 445 Lanty, Miller v., 87 Lawless v. Chamberlain, 117 Lawrence, Reg. v., 411 Law, Sheldon v., 126 Le Caux v. Eden, 83 Leith v. Willis, 100 ir v. Ritchie, 129, 317 Leprohon v. Ottawa, 220, 342, 380, 414, 433, 434, 442 License Com. v. Frontenac, 436 v. Prince Ed., 436 Lindo v. Lord Rodney, 83 Liquor License Act, 1883, Re, 359 Liscombe, Whitby v., 113, 120 Local Option Act, Re, 361, 369, 370, 414, 440, 442, 446 Logan, Winnipeg v., 501 Longueuil Navi. Co. v. Montreal, 383, 431 Lopez v. Burslem, 185 Low, Routledge v., 57, 73, 186 Lucas & McGlashan, Re, 409 L’Union St. Jacques v. Belisle, 202, 207, 211, 213, 216, 350, 352, 384, 392, 401, 419, 485 Lynch v. Can. N. W. Land Co., 386, 389, 425 Lyons, In re, 73 M. M. falsely called S. v. S., 615 Machar, McKilligan v., 474 Maguire, Tai Sing v., 616 Maher v. Portland, 500 Mallette v. Montreal, 373 Mann, Aitcheson v., 236, 402 Marbury v. Madison, 193 Maritime Bank v. Reg., 136, 138, 142 TABLE OF CASES CITED. XI Maritime Bank v. Receiver-Genl. of N. B,, 144, 241, 245, 252, 255, 261, 301, 307, 318, 324, 325, 342, 419, 443, 529 Maryland, McCulloch v., 178, 194 Massey Manf. Co., Re, 312 Massue, Bruneau v,, 231 Mayville, Harding v., 493 Mayor and Aid. of Norwich, Keg. v., 84 Meisner v. Fanning, 87 Melbourne, Cleveland v., 489 Mercer v. Atty.-Genl. Ont., 40, 219, 307, 525, 528 v. Hewston, 112 Reg. v. 124 Merchants B. v. Smith, 387 v. Gillespie, 395 Meth. Church, Smith v., 116 Meyers, Bleeker v., 122 Hart v., 122 Middleton, Bowman v., 59 Milford, Reg. v., 126 Miller v. Lanty, 87 Mississquoi, Hart v., 361 Mohr, Reg. v., 351, 449 Molson v. Chapleau, 312 v. Lambe, 364, 430 Monkhouse v. G. T. R., 375, 457 Montreal, Longueuil N. Co. v., 383, 431 O. &O. Ry., Bourgoinv., 454 Atty.-Genl. Can. v., 531 Angers v., 351, 373 Ware. Co., Royal Can. Ins. Co. v., 389 Moodie, Reg. v., 124 Moore v. Moore, 91 Morrow, Eraser v., 69 Morrison, Wheelock v., 91 Morton, Freeman v., 91 Mostyn, Fabrigas v., 161, 153, 155, 159 Moulson v. Comm. Bank, 108 Mount & Morris, Reg. v., 72 Mosseau v. Bate, 311, 402 Mowat v. McPhee, 73 Mulligan, Sinclair v., 581, 598 Murdoch v. Windsor & Ann. Ry., 399 Murray, Allen v., 94 Mjiagxaye v. Pulido, 150, 158 Muskoka Mill Co. v. Reg., 312 Munn v. McCannell, 399, 537 Me. Macdonell v. Macdonald, 335 Macmillan v. S. W. Boom Co., 382 Macnamara, Wall v., 155 McAlmon v. Pine, 397 McArthur v. N. & P. June. Ry., 458 McBeth v. Haldimand, 159 McCannell, Munn v., 399, 537 McClanagan v. St. Ann’s Mut. Bldg. Soc., 401 McCormick, Reg. v., 122 McCulloch v. Maryland, 178, 194 McDaniel, Corby v., 125 McDiarmid v. Hughes, 456 McDonald, Gibson v., 232, 315 v. McDougall, 109 v. Ronan, 89 Smyth v., 88 McDonell v. Smith, 335 McDougall, Reg, v., 365 v. Union Navi. Co., 382 McFadden, Hanington v., 90 Reg v., 89 McGowan, Smith v., 65 McGuire v. Reg., ex rel. Birkett, 445 Wilson v., 232 McHugh, Free v., 492 McKenny, Doane v., 90 McKeown, Wheelock v., 87 McKilligan v. Machar, 474 McLaughlin, Rex v., 79, 92 McLean, James v., 58, 94 McLennan, Keefe v., 360, 361, 443 McLeod v. Atty.-Genl. N. S. W., 192, 218 McNeil, Hodgins v., 73, 118 N. Nan-e-quis-a Ka, Reg. v., 580 Natal, In re Lord Bishop of, 30, 135, ~ 141 Neville, Union Bank v., 396 New B. Receiver Genl., Maritime Bank v., 144, 241, 252, 255, 261, 301, 307, 318, 324, 342, 419, 443, 529 Niagara Falls Inter. Bridge Co., Atty.-Genl. v., 311 Niboyet v. Niboyet, 57, 186 Noel’v. Richmond, 362 Normand v. St. Lawrence Navi. Co., 382 North Perth, In re, 240, 286, 463, 465 North. & Man. Ry., C. P. R. v., 454 N. & P. June. R V ., McArthur v., 458 TABLE OF CASES CITED. O. O’Brien v. Reg., 312 O’Connor v. Kennedy, 119 Oliver v. Bentinck, 150, 155, 160 Ont. Bank, Clarkson v., 395, 397 Ordnance H. M. Officers, Tally v., 184 O’Regan v. Peters, 3(56 O’Rielly, Dunn v., 122 UOrillia, Slavin v. 359, 439, 443, 487 O’Rourke, Reg. v., 202, 417 {/ Ottawa, Leprohon v., 220, 312, 380, 41 4, 433, 142 P. Page y. Griffith, 473 Paige v. Griffith, 482 Papin, Exparte, 482 Parker, Johnstone v., 117 I/ Parsons, Citizens v., 96, Q. Quebec, Blouin v., 362, 482 V ->|LQueddy Riv. Driving Boom Co. v.
Davidson, 383, 459, 535

Queen’s Ins. Co., Atty.-Genl. Que-
bec v., 214, 432, 446 ‘

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

105, 206,

207, 210, 213, 349, 353, 407, 420,U(Reg.

455, 460, 464, 467, 511
Pattee, Reg. v., 402
Peake v. Shields, 189. 235, 394
Penley v. Beacon Ass. Co., 57
Pennock, Stinson v., 121
Perkins, Ex parte, 471
Peters, Danahers v., 360. 364, 366

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

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

195
Picton, The, 236, 384

Reg. v., 139
Pigeon v. Recorder’s Court, 373,

447

Pillow, Ex parte, 373, 487
Plante, Reg. v., 417
Plummer Wagon Co. v. Wilson, 433
Pope v. Griffith, 472
Porter, Reg. v.,89
Portland, Maher v., 500
Poulin v. Quebec, 362
vpowell y. Appollo Candle Co., 183
Poyntz, Johnson v., 398, 476
Prince Ed., License Cora, v., 436
Protection Ins. Co., Grant v., 91

idence, The, 68

<Pulido, Musgrave v., 150, 158 Purdy, q.t., v. Ryder, 124 R. Radloff, Atty.-Genl. v., 410 Ramsay, Craw v., 56, 184, 192, 245 Ransom, Richardson v., 471 Raphael v. Verelst, 150 Recorder’s Court, Pigeon v., 373, 447 Rector St. James, Hasen v., 93 Receiver G. of N. 13., Maritime B. v,, 141, 241, 245, 252, 255, 261, 301, 307, 318, 324, 325, 342, 419, 443, 529 Redneld v. Wickham Corp., 459 Redpath v. Allen, 179, 195, 227 Reed v. Atty.-Genl. Quebec, 213, 316, 428, 433, 438 v. Amer, 143, 254, 259, 303, 316 v. Anderson, 57, 185, 187 v. Applebv, 93 v. Bank N. S., 136, 151, 303 v. Barnes, 126 v. Bell, 117 v. Bennett, 471 v. Bertrand, 142 v. Bittle, 415, 474 v. Boardman, 408, 410, 412, 481 v. Bradshaw, 416, 469 v. Brierly, 191, 193, 195 v. Burah, 177, 182, 441, 481 – v. Bush, 238 v. Carr, 185 v. Chandler, 342, 396, 398, 476 v. Coll. of Phys., 67 v. Coote, 238, 470 v. De Coste, 416 v. Eli, 415 v. Eyre, 67, 159 -*”” v. Foley, 418 v. Gamble & Boulton, 113, 327 v. Gold Commrs., 616 v. Horner, 470, 538 v. Justices of Kings, 360, 44;>

v. Keefe, 582

v. Keyn, 57, 186, 187

v. Lake, 415

v. Lawrence, 411

v. Mayor and Aid. of Norwich,
84

TABLE OF CASES CITED.

Xlll

Eeg. v. McCormick, 122
v. McDougall, 365
v. McFadden, 89
v. Mercer, 124, 125
v. Milford, 126
v. Mohr, 351, 449
v. Moodie, 124
v. Mount & Morris, 72
v. Nan-e-quis-a Ka, 580
v. O’Rourke, 202, 417
v. Pattee, 402
v. Picton, 139
v. Plante, 417
v. Porter, 89

v. Quirt, 354, 392, 464, 531
v. Reno, 471, 537
v. Robertson, 351, 385, 414,

474, 480, 488, 531
v. Roblin, 117
v. Roddy, 408, 409, 415
v. Row, 122

v. Schram & Anderson, 65, 379
v. Seeker, 117

v. Severn, 194, 364, 430, 448
v. Shaw, 161, 412
v. Sherman, 60
v. Slavin, 60

v. Taylor, 67, 214, 229, 374, 432
v. Toland, 228, 236, 469
v. Wason, -217, 410, 413, 415,’

474, 478, 487

v. Wellington, 354, 388, 531
v. Wing Chong, 616
Abraham v., 312
Exchange B. v., 136, 138, 141
Fredricton v., 206, 349, 363,

370, 407, 616
Hodge v., 182, 202, 213, 216,

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

v. Torrance, 388
Routledge v. Low, 57, 73. 186
R. C. Sep. Schools, In re, 223, 494
Trustees of, v.

Arthur, 494
Royal Can. Ins. Co. v. Mont. Ware.

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

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

465, 486

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

s.

Sabine, Comyn v., 151, 159
Santos v. Illidge, 57
Sawyer, Tarratt v., 91
Sayre, Gilbert v., 93
Schram & Anderson, Reg. v., 65, 379
Schultz v. Winnipeg, 388
School Trustees, Board of, v. Grain-
ger, 494

Scott v. Henderson, 89, 91
Seeker, Reg. v., 117
Sep. Schools, In re R. C., 223, 494
Severn v. Reg., 194,364, 430, 448
Shaw, Reg. v., 161, 412
Shea, v. Choate, 99
Sheldon v. Law, 126
Sherman, Reg. v., 60
Shey v. Chisholm, 90
Shields, Peak v., 189, 235, 394

324, 358, 363, 364, 370, 425, ! Shoolbred v. Clark, 394, 459

474, 480, 481, 486

Maritime B. v., 136, 1887142

Muskoka Mill Co. v., 312

O’Brien v., 312

Riel v., 183, 347, 555

Sproule v., 615

St. Cath. Milling Co. v., 307,

404, 438, 524, 526
Reid v. Inglis, 125
Renand, Ex parte, 350, 496, 509
Rex. v. McLauglin, 79, 92

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

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

}<8immons & Dalton, In re, 240, 286 Sinclair v. Mulligan, 581, 598 Slavin v. Orillia, 359, 439, 443, 487 Smiles v. Belford, 67, 403 Smith, Ex parte, 232, 346 v. Cooper, 114 McDonell, v. 335 v. McGowan, 65 v. Meth. Church, 116 Merchants B. v., 387 Torrance v., 122 Smyth v. McDonald, 88 S. W. Boom Co., McMillan v., 382 Spencer, Harrison, v., 58 Sproule v. Reg., 615 Squier, Re, 73, 514 . Catherines Mill Co. v. Reg., 307, 404, 438, 524, 526 Stark v, Ford, 116 * XIV TABLE OF CASES CITED. St. Ann’s Mut. Bid. Soc., McClana- gan v., 401 St. Johns, Cen. Ver. Ry. v., 351, 384 St. Lawr.Nav. Co., Normand v., 382 Steele, Beard v., 374, 387 Stewart, Atty.-Genl. v., 94, 103, 111, 113, 114 Stinson v. Pennock, 121 Stuart v. Bowman, 131 Suckling, Anglo Can. Mus. Pub. Co. v. 403 Suite, Three Rivers v., 362, 364, 439, 443, 445 Sussex Peerage Case, 57, 186 T. Tai Sing v. Maguire, 616 Tarratt v. Sawyer, 91 Tarte v. Beique, 481 Taylor, Barton v., 263, 326 Reg. v., 67, 214, 229, 374, 432 Temple, Holmes v., 350, 379 Temporalities Board, Dobie v., 50, 200, 258, 319, 459, 535 KTheberge v. Landry, 171, 253, 286, 289, 325, 336, 341, 464 Thomas, European & N. A. Ry. v., 452 Thompson v. Bennett, 73 Kilbourn v., 264 Thrasher Case, 616 Three Rivers v. Suite, 362, 364, 439, 443 Todd, Anderson v.,96, 102, 112, 114, 120, 248 Toland, Reg. v., 228, 236, 469 Toronto, Atty.-Genl. Can. v., 532 Kennedy v., 531 Torrance, Ross v., 388 v. Smith, 122 Tully v. Officers H. M. S. Ordnance, 184 u. Uniacke v. Dickson, 77, 88, 90, 94, 127 Union Bank v. Neville, 396 Fire Ins. Co., Clarke v., 451 Nav. Co., McDougall v., 382 V. ^tValin v . Langlois, 217, 231, 232, 280, 287, 288, 445 Vaughan, Rex v.. 58 Vaughan, Reynolds v., 615 Verelst, Raphael v., 150 w. Wald, Gaston v., 121 Wall v. MacNamara, 155 ^ Reg. v., 161 Wallace-Huestis Grey Stone Co., Re, 400 Ward, Hesketh v., 93, 120 v. Reid, 416 Wason, Reg. v., 217, 410, 474, 478, 487, 582 Watson, Cote T., 401 Way v. Yally, 152 Wellington, Reg. v., 354, 388, 531 Western Counties Ry. Co. v. Wind- sor & Ann. Ry., 531 Wetherell & Jones, In re, 232, 346 Wheelock v. Morrison, 91 v. McKeown, 87 Whicker v. Hnme, 114 Whitby v. Liscombe, 113, 120 White, Andrew v., 39 Whittier v. Diblee, 476 Wickham Corp., Redfield v., 459 Widder, Cronyn v., 125 Wilcox v. Wilcox, 131 Wilkins v. Despard, 155 Willett v. De Grosbois, 285 Williams, In re, 538 Williamson, Ex parte, 471 Willis, Leith v., 100 Wilson, Dillingham v., 98 Hallockv., 112 v. Jones, 94 v. McGuire, 232 Plummer Wagon Co. v., 433 Windsor & Ann. Ry., Murdoch v., 399 Co., Re, 400 West. Coun- ties v., 531 v. Com. Bank. 387 Wing Chong, Reg. v., 616 Winnipeg v. Banrett, 493, 495, 501, 508 v. Logan, 501 Schultz v., 388 Woodworth v. Landers, 264 Woolrich, Connolly v., 581 Worms, Ex parte, 538 Wright, Cowan v., 536 Wyatt v. Gore, 155 Y. Yally, Way v., 152 INDEX TO STATUTES, (a) IMPERIAL STATUTES. Magna Charta, 87, 90 Hen. III. (Charters of), 87 13 Ed. I. c. 18 (Elegit), 91 27 Ed. III. c. 17 (Stat. of Staples), 90 28 c. 3; 89 1 Kich. II. c. 12 (Escape), 94 2 Hen. IV. c. 7 (Nonsuit), 91 8 Hen. VI. c. 29 ; 89 7 Hen. VIII. c. 4 (Damages in Beplevin), 91 8 c. 16 ; 87, 88 18 c. 6 ; 87, 88 25 c. 22 (Marriage), 118 27 c. 10.(Statnte of Uses), 90, 92 28 c. 7 ” 118 28 c. 16 ” 118 31 c. 1 (Partition), 90 32 c. 9 ; 91, 124 32 c. 32 (Partition), 90 32 c. 38 (Marriage), 118 32 c, 39 ; 93 33 c. 23 ; 161 33 c. 39 ; (Crown Debts), 78 5-6 Ed. VI. c. 16 (Sale of Offices), 124 5 Eliz. c. 4 (Apprenticeship), 98 13 c. 4 (Crown Debts), 78 13 c. 5 (Fraudulent Conveyances), 91, 97 18 c. 5 (Actions by Informers), 122 29 c. 4 (Sheriffs’ Fees), 93 43 c. 6 (Costs), 93, 121 21 Jac. I. c. 14 ; 88 16 Car. I. c. 10 (Star Chamber), 116 12 Car. II. c. 18 (Navigation Act), 68 13 c. 2 (Costs), 93, 121 25 c. 7; 35 INDEX TO STATUTES. 1 Wm. & Mary, c. 18 ; 125 1 st. 2, c. 2 (Bill of Eights), 133, 244 11-12 Wm. III. c. 12 (Governors), 152, 160 12-13 c. 2 (Act of Settlement), 244 1 Anne, st, 2, c. 6 (Escape), 120 4 c. 16 (Bail Bonds), 93 5 c. 9 (Escape), 120 6 c. 7 (Succession Act), 134, 244 6 c. 11 (Union Act, Scot.), 212, 357 2 Geo. IT. c. 23; 58 c. 7; GO-5 9 c. 5 (Fortune Telling), 126 . c. 36 (Mortmain), 93, 101-116 13 c. 18 (Certiorari), 89, 94 14 c. 17 (Nonsuit), 93 14 c. 37 (Bubble Act), 69-72 20 c. 19 (Apprenticeship), 99 22 c. 40 ; 100 22 c. 46 (Attorneys), 122 26 c. 33 (Marriage), 116-9, 580 9 Geo. III. c. 16; 122 14 c. 78; 121 14 c. 83 (Quebec Act, 1774), 34, 65, 69, 70, 95, 96, 104, 105, 106, 122, 123, 212, 408, 461 14 c. 88 (Duty on Rum, etc.), 34, 36, 39 18 c. 12 (Renunciation Act), 36, 67 19 c. 70 (Certiorari), 100 21 c. 49 (Lord’s Day Act), 126 22 c. 75 (Removal of Colonial Officers), 73, 514 26 c. 86; 122 28 c. 49; 122 31 c. 31 (Constitutional Act, 1791), 28, 34, 39, 60, 61, 66, 94, 105, 123, 257 39-40 c. 9 (Thellusson Act), 58 42 c. 85 (Colonial Officers), 160 49 c. 123 ; 68 4!> c. 126 (Sale of Offices), 124

59 c. 69; 15 5

59 c. 96 (Apprenticeship) 98

6 Geo. IV. c. 91 ; 69

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

11 Geo. IV. & 1 Wm. IV. c. 60 ; 73
1-2 Wm. IV. c. 23; 39, 40
5-6 c. 54; 73

3-4 Vic. c. 35 (Union Act, 1840) 28, 40, 41, 54, 66, 217, 257, -29-s, 525
5 o. 11; Ml

INDEX TO STATUTES. XV11

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

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

5-6 c. 120 (Newfoundland), 54

6-7 c. 29; 40

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

9-10 c. 94 ; 40, 56

10-11 c. 44 (Newfoundland), 54

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

12-13 c. 29; 40

12-13 c. 96; 72

12-13 c. 106 ; 69

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

15-16 c. 39 ; 40

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

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

18-19 c. 55 (Victoria), 54

18-19 c. 67 (Bills of Exchange), 600

18-19 c. 90; 601

24-25 c. 44 (Queensland), 54

26-27 c. 84 (Colonial Constitutions), 421

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

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

31-32 c. 105 (Rupert’s Land Act, L68), 551

33-34 c. 52 (Extradition), 538

34-35 c. 28 (B. N. A. Act, 1871), 183, 271, 272, 347, 555, 585

34-35 c. 83; 262

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

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

(b) DOMINION OF CANADA.

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

c. 40 (Militia), 379

c. 58; 382

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

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

c. 23 (Perjury), 189

c. 31 (Actions against Justices), 416

c. 39 (Costs in Actions against Justices), 476

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

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

34 c. 5 (Banking), 387

XV111 INDEX TO STATUTES.

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

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

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

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

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

c. 35 ” 557

c. 41 ; 531

37 c. 9 (Elections), 286

c. 10 (Controverted Elections), 217, 232, 289

38 c. 11 (Supreme Court Act), 229

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

40 c. 6 (Manitoba), 587

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

43 c. 67 ; 450

44 c. 14 (Manitoba), 587, 602

45 c. 28 (N. W. T.), 561

46 c. 30 (Dom. Liquor License Act, 1883), 359, 366

47 c. 17 (Evidence), 474
47 c. 23 (N. W. T.) 561

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

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

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

c. 8 (Dominion Elections), 170, 285

c. 9 (Controverted Elections), 285

c. 10 (Election Enquiry), 285

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

c. 12 (Manitoba), 589

cc. 21-41 (Ministers), 167

cc. 28-29 (Finance), 377

c. 30 (Currency), 386

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

c. 41; 260

c. 47 (Manitoba), 589, 602

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

c. 53 (Keewatin), 563

c. 70 ; 355

c. 109 (Railway Act), 458

c. 120 (Banking), 387

c. 127 (Interest), 389

c. 129 (Winding-tip), 394

c. 135 (Supreme Court), 223, 229

INDEX TO STATUTES. xix

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

c. 144 (English Criminal Law), 97, 128, 616
c. 158 ; 413
c. 161 (Bigamy), 191
c. 174 (Grim. Procedure), 417, 473
51 c. 19 (N. W. T.), 564, et seq.
51 c. 33 (Manitoba), 600-1
53 c. 33 (Bills and Notes) 388
54-55 c. 22 (N. W. T.), 564, et seq.
55-56 c. 11 (Redistribution, 1892), 283, 285, 297, 590

(c) UPPER CANADA (1791-1840).

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

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

33 c. 5 (Marriage), 118
38 c. 4 ” 118

40 c. 1 (English Criminal Law), 69, 70, 71, 96, 106, 118,

123, 125, 126

2 Geo. IV. c. 11 (Marriage), 118
11 c. 36; 118

3 Wm. IV. c. 1 ; 101

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

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

6 Vic. c. 31 ; 40
9 c. 114 ; 40

23 c. 17 (Elections), 285

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

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

(e) ONTARIO.

C. S. U. C. c. 14 (Court of Impeachment), 514

34 Vic. c. 3 (Controverted Elections), 290
R. S. O. (1877) c. 42 (Grouping Act), 232-3

c. 181 (Liquor License Act), 358

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

XX INDEX TO STATUTES.

R. S. O. (1887) c. 67 (Arrest for Debt), 190
c. 93 (English Law), 97, 127
c. 124 ; 395
c. 125 ; 225

53 Vic. c. 13 ; 369

c. 18 (Trial of Forgery Cases), 236, 469
c. 56 (Local Option), 361, 369, 370, 414, 442

54 c. 46 ” ” 369

(!) QUEBEC.

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

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

39 c. (Pharmacy Act), 373, 482, 487

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

R. S. Q. (1888) Art. 124 (Assembly), 328

Art. 136-144 , 334
53 Vic. c. 3 (Representation), 332

(g) NOVA SCOTIA.

33 Geo. II. c. 3 ; 26, 77

1 Geo. III. c. 8 ; 68
12-13 Vic. c. ; 40

38 c. 25 (Controverted Elections), 290
K. S. N. S. c. 139; 90

(1884) c. 3 (Assembly), 328

(h) NEW BRUNSWICK.

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

32 c. 32 (Controverted Elections), 290

33 c. 33 (Assembly), 328.

34 c. 21 (Common Schools), 496
:-JG c. 10; 360

37 c. 107 ; 382

50 c. 4 (Liquor License Act), 366

INDEX TO STATUTES. XXI

(i) PEINCE EDWARD ISLAND.

26 Vic. c. 15 (Assembly), 328

37 c. 21 (Controverted Elections), 290

(j) BRITISH COLUMBIA.

34 Vic. No. 70 (English Law), 615

34 No. 147 ; 614

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

R. S. B. C. (1888) c. 22 (Provincial Constitution), 615

(It) MANITOBA.

34 Vic. c. 2 ; 598-9

35 c. 3 ; 599

35 c. 10 (Controverted Elections), 290

38 c. 12 (Introducing English Law), 599

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

49 Vic. c. 11 (Mortmain), 602
49 c. 51 (Stamps), 434
53 c. 23 (Mortmain), 602

53 c. 38 (Public Schools), 505

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

ERRATA ET CORRIGENDA.

Page 40, line 19 for “clearly ” read ” equally.” 1

” 126, ” 12 ” ” ice have enumerated” read “enunciated.”

” 187, ” 32 ” “on” read “no.”

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

pp. 348-9.

” 228, The sentence beginning on line 4, is subsequently qualified.
” 289, line 18 for 1875 ” read ” 1874.”
” 297, ” 5 ” “distribution” read “re-distribution.”
.. _ 19 “” 1892 ” read ” 1891.”

” 406, Eeference should be made to the decisions in British Colum-
bia ; see p.

” 429, head-line for ” sec. 91 ” read ” see. 92″
” 444, line 18 for ” majorities ” read “majority.”
” 469, ” 18″ “35 Vic.” read “53 Vic.”
” 479, line 4 for ” milked ” read ” milk.”
” 538, note (/) supply reference to p. 470.

PAET I.

INTRODUCTORY.

*

THE

Law of the Canadian Constitution.

CHAPTER I.

OUR POLITICAL SYSTEM A COMPARATIVE EXAM-
INATION.

By virtue of a certain Act (a), passed by the Parliament
of the United Kingdom, and Her Majesty’s proclamation
pursuant thereto (b), the Dominion of Canada became “a
new thing under the sun” of the first day of July, 1867.
The Imperial Act provides for its own citation as “The
British North America Act, 1867,” but we shall not only
save space, but conform also to usage on this side of the
Atlantic, by using throughout the shorter title of “The
B. N. A. Act” (c). For a quarter of a century our form of
political organization has been, under that Act, a “general”
government (of which we shall always speak as the
“Dominion” government), charged with matters of common
interest to the whole country, and “local” governments
(to be spoken of as “Provincial” governments), charged
with the control of local matters in their respective sections.

(a) 30 & 31 Vic. c. 3 (Imp). (b) Sec. 3.

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

CAN. CON. 1

2 THE CANADIAN CONSTITUTION.

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

In the preamble to the B. N. A. Act, it is recited that

the provinces of Canada, Nova Scotia and New Brunswick,

\ had expressed their desire for a federal union into one

[Dominion, “with a constitution similar in principle to

1 that of the United Kingdom” and the opinion is ventured

that such a union would conduce to the welfare of the

provinces, and promote the interests of the British Empire.

“Be it therefore enacted,” etc.

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

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

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

OUR POLITICAL SYSTEM.

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

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

(d) Dicey (Prof. A. V.) “The Law of the Constitution,” 3rd ed., p. 155.
As the Professor himself would say, “it is worth noting ” that the criti-
cism of this preamble, in which he indulges, is inaccurate. The provinces
had expressed their desire for a constitution ” similar in principle,” etc.,
as a perusal of the Resolutions, above quoted, will show, and the pre-
amble therefore is literally true. We waive, however, this verbal criticism
of the Professor’s statement, and treat it as indicative merely of his view
of the effect of the B. N. A. Act.

4 THE CANADIAN CONSTITUTION.

the pre-Confederation provinces had been governed, and
the Dominion and its federated provinces have since been
governed, the principle, as we shall endeavor to show,
which is the chief distinguishing feature of the British
form of government, the Empire over, as contrasted with
the constitution of the United States. Because the union
of the B. N. A. provinces is federal, indicating, ex necessi-
tate, some sort of a division of the field of governmental
action, an allotment of some part of that field to a “central”
government, the conclusion is rashly arrived at, that these
matters of outward and superficial resemblance between
our system of government and that of the neighboring
Republic, are sufficient to stamp them as essentially alike.
A closer examination of the B. N. A. Act itself, coupled
with some slight knowledge of the pre-existing provincial
constitutions, and their practical working, would have
sufficed to show that, in essentials, we have a constitution
?not like thfe constitution of the United States, but “similar
j in principle to that of the United Kingdom.” In this
instance, at least, the Imperial parliament has not laid
itself open to the reproach addressed in Holy Writ to cer-
tain unnatural parents. We in Canada labor under the
impression that we have got what we asked for ; whether
it is, or is not, good for us, is not, perhaps, matter for dis-
cussion in a work of this kind.

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

OUR POLITICAL SYSTEM. 5

The British Empire and the American Union consist,
each of a central or “national” government, with subor-
dinate ” local ” governments. The central government in
each is the only organization entitled to international
recognition as the embodiment of the national will ; but it
is, at the same time, the comprehensive organism which
overlies and binds together the various “local” govern-
ments existing within the borders of the Empire or Union.
In the case of the United States, the central or Federal
government has always 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 rather of Great Britain, than as an
Imperial constitution. The reason is partly geographical,
partly historical. The Imperial constitution, as it to-day
exists, is the result of the gradual application to the
government of an expanding empire, of those principles
of local self-government which were adopted, at the start,
as the basis of the federal union of tlie American colonies
but this Imperial phase of the British constitution has
been rather overlooked. If we can, in imagination, place
ourselves in the world of (say) 1776, and try to appreciate
just to what stage the British constitution had arrived, it
will be found that the struggle in Great Britain to that
date, had been a struggle between “the individual” and “the
State.” That question had been finally settle*}, and the
individual was protected by, and subject only to, the law
of the land, and the despotism of discretionary govern-
ment was forever abolished. Next in order came the
question of ” local ” self-government (e). In compact Eng-

(e) The federal idea is really nothing more than the logical outcome
of the “individualistic” idea, which lies at the bottom of self-govern-
ment ; and it would be an interesting task to trace the growth of tha
idea from its root in the belief that man has certain ” natural rights,” and
that society controls his exercise of those rights, only to the extent neces-
sary to give proper play to the like rights of his fellow-men, up through
the growth of municipal self-government to the establishment of a federal
system of government, logical from root to topmost branch.

6 THE CANADIAN CONSTITUTION.

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

Viewed then as an Imperial system, the British coiistitu- /
tion does not differ in principle from the constitution <>i the j

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

OUR POLITICAL SYSTEM. 7

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

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

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

8 THE CANADIAN CONSTITUTION.

they do, to the intercourse between Great Britain and her
European neighbors ( h)\ and, as to these, the British Govern-
ment can hardly be said to act as an Imperial government.
Their recognition as matters largely of “local” concern to
Great . Britain, is made apparent in the case, for instance,
of many British treaties, by the reservation to the colonies,
in a number of modern instances, of the right to share, or
to decline to share, the benefit and burden of these treaties
just as each colony may see fit to determine for itself.
Modern constitutional usage in the British Empire is rap-
i idly approaching the point where, in matters concerning
the colonies in their general relations between themselves
( i ), or the relations of the colonies generally with foreign
powers, the will of the colonies concerned is given effect
to, unless the will of the Empire as a whole should differ *
therefrom, and where in matters concerning the relations of
the colonies to the Mother Country, those relations are
settled by agreement as between independent negotiators.

In truth, the constitution of the Empire is as truly
: federal as is the constitution of the United States. Owing
to the historical accident that the Empire is but the expan-
sion of the population of the United Kingdom, the “local”
. government of the original parent stem has hitherto con-
tinued to be, as we have said, the “national” government of
the Empire, but I by gradual modification, by conventions
and usages, the functions of the British Parliament, so far
a,s it controls the “national” government of the Empire, are
performed according to the will of the Empire. The true
federal idea is clearly manifest to reconcile national unity

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

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

OUR POLITICAL SYSTEM. 9

with the right of local self-government the very same
idea that is stamped on the written constitution agreed
upon by the people of the United States. The difference
of position historically is quite sufficient to account for
the difference of position legally. Given the indepen-
dent 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. With us, on the other
hand, the central government stands historically first,
but the various communities which grew out of it have,
by gradual concession, secured at least as full a measure
[of the right of local .self-government as is enjoyed by the
(individual States, -which together form the neighboring
Republic. 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.

It may, perhaps, be contended that the “national”
government of the British Empire, having the power to
lay down the line, which is to be the legal line of division
between matters of common and matters of local con-
cern, at just such a point as to it seems proper, differs in
this respect from the “national” government of the United
States. The common description of the Federal govern-
ment of the United States, as a government possessed of
specially delegated powers only, would seem to support
this distinction. But, in truth, this special delegation is, for
all practical purposes, of government, a delegation of power
sufficiently wide to enable the Federal government to be
/ itself the regulator of its own sphere of authority. The
subject matters are themselves comprehensive in scope, and
the “implied power” which Congress possesses to choose
such means as it may deem necessary and proper for
carrying out the designed end of the “national” govern-
ment, leaves the decision as to the line of division between
Federal and State matters very much in Congress’ hands ;

10 THE CANADIAN CONSTITUTION.

and thoughtful American writers are not slow in asserting
that Congress is as fully the supreme power in the American
political system as is the British Parliament in our Impe-
rial system (j). But however this may be, and even if we
must go back to “We, the people of the United States” as
the supreme power in the American system, \ve shall find,
as might be expected, that the people, as a whole, are
legally the rulers of the people in parts, and that the line
of division which shall, at any moment, separate the fields
of Federal and State action, depends not on the will of the
individual States, but on the will of “the people of the
United States” the authors of the “Constitution” as it
v exists to-day who can alter it at any time and make it
conform to their will. Cumbersome we may think the
machinery provided for effecting any desired amendment ;
but it is there; and no one can say that the next amend-
ment will not be a simplification of the machinery for
amendment.

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

(j) Prof. Woodrow Wilson, in ” Congressional Government ” 4th ed.:
” For all practical purposes, the National Government is supreme over
the State Governments, and Congress predominant over its so-called co-
ordinate branches” : p. 52. See, however, a criticism of this work by Mr.
A. Lawrence Lowell in his ” Essays on Government,” p. 46 et seq.

OUR POLITICAL SYSTEM.

11

tional” limits, and have, in those few matters of common
concern, endeavored to carry on the Imperial government
in accordance with the wishes of the Empire as a whole,
so far as, under our illogical system, those wishes are
capable of being ascertained. ^

We have spoken of the want of legal limit to the power
of the “national” government under the British Imperial
system. The expression is perhaps hardly accurate the
want which really exists is the want of _legal_
legislative power of the British parliament. The result
is that the legal line of division between the fields of
Imperial and colonial government, is a most uncertain
one, although becoming less so. But although one must
ransack both British and colonial statutes to ascertain this
line, it is, when ascertained, and at any given moment of
time, a legal line of division, and governmental action will
be kept by the courts within its proper sphere. No judge
within the Empire can legally limit the British Parliament
as a legislative body, or treat its enactments as ultra vires ;
but the very same thing may be said of that “amended
Act” of the supreme legislative authority of the United
States its present ” Constitution ” or of any future amend-
ment thereof. But under both the British and the United
States systems systems of government-according-to-law
the courts charged with the enforcement of law must
decline to recognize the validity, the lawfulness, of any
governmental act, 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 notoriety (&), apart altogether from the ^
cases which have arisen relative to the division of the 4jtJj, **^
field of Canadian government between the Dominion and
Provincial legislatures; and no less notorious is, or should
be, the enforcement by the courts, of the legal limits set to

t

(k See post, Chap. IX.

12 THE CANADIAN CONSTITUTION.

governmental interference (other than by Imperial law-
making) on the part of the ” national ” authorities with
colonial rights of self-government (I). The “sphere of
authority” of the British parliament, as a law-making body
for the Empire, is legally unlimited, and within that
unlimited sphere it may exercise its~law-making powers in
whatever fashion may appear proper to it. The “sphere
of authority” of Congress as a law-making body is not
unlimited, but over matters within that sphere (be it ^vvicle
or narrow), the power of legislation is plenary, and subject
to no limitations capable of judicial enforcement.

We have nof ther^fDr^cfiscovered yet the difference in
principle between the British and the American^ systems of
government. It is not in respect of the federal idea
that is common to both; noi*”in respect of the rule of law,
the enforcement by the courts of the law of the constitution
I that, too, is common ground. We are driven, therefore,
(to examine the machinery of government; and here we
shall find a difference which runs through the ” national ”
and ” local ” governments alike of these two systems. The
‘difference in principle is not in those parts of the body
politic which exercise legislative functions, nor in those
which are executive, but in the connection between the two
the connection between the law-making and the law-
xecuting departments of government,.

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

(/) Campbell v. Hall, Cowp. 209.

OUR POLITICAL SYSTEM. 13

the choice of means, manner, and time, left with the execu-
tive, constitutes that executive a power capable of exhibit-
ing the imprint of its own discretion in the actual carrying
on of public affairs. On the other hand, the legislature
may go to such length of legislative detail, may so specifi-
cally provide the means, manner, and time, for the perform-
ance of any work of government, that the executive may
sink to the level of a purely routine office, and the power
of any member of the executive staff to exercise discretion,
as to’ how or when he shall perform his duties, be entirely
taken a,way. The history of constitutional progress in
England is the history of the steps by which the Legisla-
ture compelled the Executive to recognise the supremacy
of law in other words, the supremacy of the Legislature ;
and so long as the Executive withheld this full recognition,
legislation continued to be more and more specific in its
provisions, more of a curb and fetter upon executive dis-
cretion. But now that the principle of executive responsi-|
bility is recognized to the full, the tendency of legislation
is, in many matters, rather the other way; and many de-
tails of governmental action are left to be provided for by
order in council or departmental regulation, or even left to
the discretion of the official who has charge of the particu-
lar work.

It must be observed, too, that this supremacy of the
legislative department of government is just as clearly
apparent under a federal system where the government is
a government-according-to-law, as under what has been
called a ” Unitarian” system, under the like rule of law.
The federal idea has no more necessary relation to the
separation of the spheres of authority of the legislative and
executive departments than has the ” Unitarian” idea. The
English jonstitution (viewed as the constitution of the
United Kingdom merely) and the French constitution are
manifestations of the ” Unitarian ” idea in government ; but,
in the former, the supremacy of the legislature over the
executive is a dominant principle ; while, in the latter, the

14 THE CANADIAN CONSTITUTION.

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

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

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

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

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

OUR POLITICAL SYSTEM. 15

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

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

” The efficient secret of the English constitution may be
described as the close union, the nearly complete fusion of the
executive and legislative powers. No doubt by the traditional
theory, as it exists in all the books, the goodness of our consti-
tution consists in the entire separation of the legislative and
executive authorities, but in truth its merit_consists in their
singula_a]3proximation. The .connecting^. link-is the Cabinet \
By that new word we mea*: a committee__of_the legislative body!
selected^ to_be_the ^xecutive i_body. The legislature has many!
committees, but this is its greatest. It chooses for this, its main
committee, the men in whom it has most confidence. It does
not, it is true, choose them directly ; but it is nearly omnipotent

in choosing them indirectly The Cabinet, 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
buckle which fastens, the legislative part of the State to the
executive part of the State. In its origin, it belongs to the one,
in its functions, it belongs to the other.”

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

16 THE CANADIAN CONSTITUTION.

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

Mr. Dicey, in a work to which reference has already
been made, treats of ‘the law of the constitution/ and
insists on this as the legal principle discernible throughout,
namely, the supremacy of Parliament. Viewed as a legal
question, the solution of the problem stops short at the
expression (in Act of Parliament) of the will of Parlia-
ment, and from that standpoint we may summarize the
result thus : The Imperial Parliament is supreme over the
Executive. By the legal expression of its will in statutory
form, it controls the exercise of executive authority; may
add to, or take from, the power of that department of gov-
ernment, or may subject the exercise of executive power to
such conditions of time, place, or manner of action, as to
Parliament may seem proper. The law of the constitution
does, however, take this cognizance of the “power behind
the throne,” that the method of electing the House of
Commons is provided for by Act of Parliament.

Viewed in the light of the “conventions of the constitu-
tion,” the responsibility of the executive to the legislature
for the proper performance of its functions, is guaranteed

i by those usages and precepts, that code of ” conventions ”
which provide that, upon losing the confidence of the House
o| Commons, the Cabinet must resign, and give place to an
executive which will command that confidence (n).

This responsibility of the executive to the people,

/through the House of Commons the elective branch of
parliament is the principle of the British constitution,

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

OUR POLITICAL SYSTEM. 17

and is worked out in government somewhat upon the prin-
ciple of the endless chain. Travelling in one direction
along the links of this chain, we find an executive commit-
tee, practically appointed by, and subject to deposition at
the hands of the Commons, executing upon and over the
governed those laws of the land which are made, or allowed
to remain such, by that branch of parliament which is elected
by the people through certain executive machinery ap-
pointed by parliament, and put in motion by the executive
committee. A reversal of the process leads to the same
result the discovery that the motive power in government
is the will of the people, and that this power works always
and only through parliament, but that, through the con-
trolling branch of parliament, the governed make their own
laws, and provide the means, and regulate the manner, by
and in which they are to be governed by those laws.

Turning now to the system of government across the \
border, we find the same principle of ultimate responsibility ;
to the people ; but it is worked out in a very different and
much less satisfactory way. We have referred to the

will not be a very satisfactory administrator of that law.
In short, there is no guarantee of that harmony between
the legislative and executive departments, that sympathy
anTFco-operation, without which there must necessarily
arise constant friction, lack of continuity in policy, and
even a deadlock in the administration of public affairs.
Congress and the executive are responsible, each directly
to the people ; but the retention of the confidence of Con-
gress is in no way a condition to the retention of office
Congress has no such power to depose the executive as
has the House of Commons in the English constitutional
system. Moreover, the constant possibility of party diver-
sity between the Executive and Congress, renders it very |
difficult to fasten responsibility upon either. This difficulty
is thus strongly put by Prof. Wilson, in the work from
which we have already quoted :

” Is Congress rated for corrupt, or imperfect, or foolish legis-
lation ? . Does administration blunder and run itself
into all sorts of straits ? The Secretaries hasten to plead the
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? ” (</). (p) Art. I., sec. 6. (q) Congressional Government, p. 283. 20 THE CANADIAN CONSTITUTION. In the preface to the same work, the distinction between the British and the American systems of government is shortly stated, in language which we have no hesitation in adopting. “It is our legislative and administrative machinery which makes our government essentially different from all other great governmental systems. The most striking contrast in modern . politics is not between Presidential and Monarchial governments, / but between Congressional and Parliamentary governments. Congressional government is Committee government ; Parliamen tary government is government by a responsible Cabinet ministry. “These are the two principal types which present them- selves for the instruction of the modern student of the practical in politics : administration by semi-independent executive agents, who obey the dictation of a legislature to which they are not responsible; and administration by executive agents, who are the accredited leaders and accountable servants of a legislature virtually supreme in all things.” Neither need we hesitate to give expression to our decided preference for the system of cabinet government which obtains in England, when we find so thoughtful a writer as Prof. Wilson a citizen of the Republic at that doing the like. After this comparison of the two leading types of Anglo-Saxon self-government, it is easy to decide to which the Canadian constitution conforms. We shall have occasion to again refer to the limits set ‘ to our right of self-government, by reason of our colonial .subjection to. the ultimate supremacy of the Imperial parliament. In this chapter, we have endeavored to show that this subjection is but that subordination of a “local 5 to a “national” government, essential in any truly felcr;>l

scheme of government. If, indeed, to establish our position,

f we must show that some one parliamentary body, elected

X. by a Canadian electorate, is possessed of the ultimate

sovereignty in Canada over every conceivable subject

OUR POLITICAL SYSTEM. 21

matter of governmental action, the discussion need go no*
further ; for, admittedly, we are a colony of Great Britain,
and in the ultimate legal analysis our government is from
without. This, however, is not, we take it, the point of
distinction.

If we can show that so far as the right of local self j
government the right to make the laws by which we are
to be governed, and to execute those laws as suits ourselves
has been conceded, our power is exercisable, the law-
making power with the same efficacy, and the law-execut-
ing power, under the^same principle of responsibility to
parliament, and, through parliament, to the electorate, as in
the United Kingdom, we shall have established our propo-
sition. ,>’* ^..^^

To any one who has knowledge of the constitutions of
the provinces prior to confederation, it is unnecessary to
point out, that since the concession of ” Responsible Govern^
ment,” and up to 1867, those constitutions were “similar irr
principle to that of the United Kingdom,” and that all that
has been said in reference to the British constitution
might be repeated in reference to (old) Canada, Nova
Scotia, and New Brunswick.

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

22 THE CANADIAN CONSTITUTION.

of division. Bearing in mind what is involved in the term
government law-making and law-executing and the co-
extensive and complementary spheres of action of these
two chief departments of government, we shall find that
there is, in our system, no ” division of power ” in the sense
in which such division was, by the older writers, errone-
ously assumed to exist under the British form of govern-
ment; and certainly none in the sense in which such If
division does actually exist in the individual systems of
the United States. Our simile of the endless chain may,
perhaps, serve to impress the true principle of our form of
government upon the reader, and that principle underlies
the practical working of each and every of our govern-
mental organizations, Dominion and Provincial.

The true line of division is this : The various subject
matters, with which government can be supposed to have
anything to do, are divided into two great divisions (r)
matters of general and matters of local concern but to
each of such divisions, the full equipment of power, legisla-
tive and executive, is given. There is no division of function
in the sense that as to any given subject matter, legislati
power resides in one organization or government, and execu-^
tive power in another; as to any given subject matter, tin- \,
full power of government rests in one and the same govern-
mental body. The Dominion government and the Provincial
governments are (each within the sphere of its legitini;
operation) carried -on, on the same principle as the govern- 1 ,
ment of the United Kingdom. Jurisdiction as to subject
ii latter conceded, the will of the legislature, Dominion or
Provincial, is supreme over the executive, in the samo 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 Mr. Dicey the supremacy of
parliament as clearly appears here as in the Unit
Kingdom; while, for the “conventional” aspect of the

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

OUR POLITICAL SYSTEM. 23

question, it is only necessary to carry the comparison one
step further, and point out that, as in the United Kingdom
so here, the ultimate responsibility of the executive to the|\
electorate, through the elective branch of the legislature/
is clearly established, in relation as well to each provincial
as to the Dominion government. The elective branch of
the legislature (Dominion Parliament or Provincial Legis-
lative Assembly) represents, and is directly responsible to,
the electorate as in the United Kingdom. The Execu-
tive Committee (the cabinet) composed of members of the
legislature, holding their positions by virtue of, and con-
tingently upon, the retention of the confidence of the
elective branch of that Legislature, are therefore, practically
directly responsible to that elective 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 King-
dom.

In this view of the Canadian constitution, the extent
to which the executive department of the Dominion
government may exercise, over Acts of the provincial
legislative assembly, the power of disallowance, will appear
quite immaterial when it is borne in mind that this power
is, in any given case, exercised under the same responsi-
bility (directly to the Dominion parliament, and indirectly,
through the elective branch of that parliament, to the elec-
torate) as exists in relation to the exercise of any other
executive ” power lodged in the hands of the Dominion
government. And so as to any other points of contact, or
even conflict, between the Dominion and Provincial govern-
ments or, for that matter, between two local governments
for its conduct with regard to such matter of contact or
conflict, for its action or inaction, each government (execu-
. tive and legislative department alike) is responsible ulti-
mately to the electorate, who condemn or approve in the \
very same way and with like results as in the case, for

24 THE CANADIAN CONSTITUTION.

example, of a conflict between Lords and Commons in the
United Kingdom. k

Nor would it make the slightest difference, if (as was
held in certain quarters, for some years after 1867,) concur-
rent power over many subject matters were, by the B. N. A.
Act, allotted to both the Dominion and Provincial govern-
ments, and if the true construction of that Act were, to
subordinate provincial legislation upon such matters, to
Dominion legislation thereon. Colonial legislation is com-
pletely subordinate to Imperial, and to the extent of its
” repugnancy ” to such Imperial legislation, is utterly void :
and yet no one, we fancy, would contend that, by reason of
such subordination, the constitutions of the pre-Confedera-
tion provinces, for example, were other than constitutions
similar in principle to that of the United Kingdom. The
sphere of their power of government was limited by reason
of “their colonial status, but so far as they had power, that
power was exercised through the same medium of respon-
sible parliamentary government. And so now, under the
B. N. A. Act, each government, Dominion or Provincial,
has limitations set to its sphere of operation, but each.
within its sphere, is a responsible parliamentary govern-
ment.

CHAPTER II.

THE PRE-CONFEDERATION CONSTITUTIONS.

To /^properly appreciate the merits or accurately note
the defects of any form of government, it must be studied in
its actual present working examined, so to speak, in motion
and if the B. N. A. Act were the creation of a govern-!
mental organism, new in all its parts, we might lack justifica-
tion for indulging in historical retrospect back of 1867. But^
just because the slate was not cleaned, just because many –
parts of the machinery of government existing in the’
provinces prior to Confederation were continued in the new. .
plant set up in the various provinces, it will be necessary
to examine the earlier constitutions of those provinces.]
Indeed, it will appear that in at least two of them, New
Brunswick and Nova Scotia (;o), the governmental ma-
chinery was left by the B. N. A. Act almost intact, and new
plant was provided only for the Dominion^overnment and
the provinces of Ontario and Quebec (6). These reasons,
here urged in brief, will develop themselves more at length
as we progress in our examination of the scheme of govern-
ment contained in the B. N. A. Act. To avoid undue
repetition, the proof must be somewhat delayed. In any
case, a short historial retrospect would probably not be
considered out of order.

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

(b) And afterwards for Manitoba and the North West Territories.

26 THE CANADIAN CONSTI FUTIOX.

With the view, then, to determine the nature of the con-
stitution of government in the various provinces of which
the Dominion is composed, we proceed to discuss briefly,
and so far only as is necessary to a proper appreciation of
our present system, the constitutional history of those
provinces.

To .NovA SCOTIA belongs the distinction of being the
oldest of the B. N. A. colonies now forming part of the
Dominion. 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 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 the Crown of England in the most ample terms
of renunciation. Nova Scotia, as thus ceded, included the
present provinces of Nova Scotia (excluding Cape Breton)
and New Brunswick, and also part of Maine. For many
years after its acquisition, 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 anticipating
an influx of settlers into the colony, the commission to
Governor Cornwallis, of date 1749, authorized the sum-
moning of “general assemblys of the free-holders an 1
planters within your government, according to the usage
of the rest of our colonies and plantations in America,”
After much delay, and the exhibition of much mi will ing-
cm the part of the governor and his council t
upon this direction(a scheme of representation was settle*],
and the first parliament of Nova Scotia met on the second
<>f October, L758, at Halifax.

(c) :-;:’> Geo. II. c. 3 (N. S.i.

1

>^PBE-CONFEDERATION CONSTITUTIONS. 27

In Ifi63, the remaining portions of what are now known
.as the Maritime Provinces Cape Breton and Prince Edward
Island were, by the treaty of Paris, ceded to Great Britain ;
and, by the proclamation which followed, were annexed
“”to our government of Nova Scotia.”

Six years later, PRINCE EDWARD ISLAND was made a
separate province, under a governor of its own, whose.
^commission, also, authorized the calling together of “general
assemblys of the free-holders and planters, within your
.government, in such manner as you in your discretion.
shall judge most proper,” and according to further instruc-
tions. The first parliament of Prince Edward Island met ‘
in 1773.

In 1784, NEW BRUNSWICK was made a separate province,
with a governor of its own ; and his commission, too,
authorized, in somewhat similar phraseology, the summon-
ing of a general assembly, which shortly thereafter met.

Of CAPEJBRE^N’S constitutional vicissitudes it is un-
necessary to make mention (d). Finally, in 1820, it was
re-annexed to the government of Nova Scotia, of which
province it has ever since formed, and now forms, part.

So far as the Maritime Provinces (e) are concerned, the
legislatures of to-day, in those provinces, are the lineal
descendants of those early “general assemblys.” But, as we
must show, the sphere of their authority in government, in
1867, when Nova Scotia and New Brunswick (/) became
part of the Dominion of Canada, was very different from
their sphere of authority in 1758, and for many years
thereafter.

QUEBEC not the present province of that name, but
practically the now provinces of Quebec and Ontario was

(d) They are set out at length in 5 Moo. P. C. 259 : In re The Island
of Cape Breton.

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

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

28 THE CANADIAN CONSTITUTION.

ceded to Great Britain by the same treaty of Paris, which
secured Cape Breton and Prince Edward Island. The-
proclamation ((/), to which we have already referred, which
followed upon the cession, simply annexed Cape Breton
and Prince Edward Island to the government of Nova
Scotia, but erected Quebec into a new province, and made
provision for its government. Both by that proclamation,,
and by the commission to Governor Murray, the institution of
a representative assembly was contemplated, but, for reasons,
upon which it is unnecessary to enlarge, no such assembly
ever met thereunder ; and it was not until after the Imperial
parliament intervened (for the second time) in the govern-
ment of the B. N. A. provinces after the passage of what
is known as “The Constitutional Act, 1791” (k) > dividing
Quebec into the two provinces of Upper and Lower
Canada, and providing for a separate legislature in each,
province that such assemblies met ; that of Upper Cairada,,
at Niagara, on the 17th of September, 1792, and that of
Lower Canada, at Quebec, a few months later. In 1840, the
two provinces of Upper and Lower Canada were, by what
is commonly known as “The Union Act” (i), joined together
in a legislative union, which lasted until the birth of the
Dominion (j).

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

(//) See Houston, Constitutional Documents of Canada, p. 07.

(h) 31 Geo. III. c. 31 (Imp).

(/) 3 & 4 Vic. c. 35 (Imp).

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

PRE-CONFEDERATION CONSTITUTIONS. 29

tions, to which we have referred. We may say at once
that, along both lines, this survey is undertaken in order
to show that, ( prior to the date of Confederation, the
Imperial government had, in a tangible way evidenced
partly by dispatches, partly by instructions, partly by
.statutory enactments, partly, perhaps, by long disuse of ,
power along certain lines put upon record their recog-
nition of ( the necessary connection which must exist
between the legislative and executive 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, it is almost indispens-
able that we should again refer to what was, in the latter
part of the eighteenth and the earlier decades of the nine-
teenth century, the accepted explanation of that scheme of
government known as the ” British Constitution.” In
those days, the chief commendation bestowed on that con-
stitution was on account of the complete separation, as I
was supposed, of the legislative and executive power
legislative supremacy in the parliament, executive supre-
macy in the Crown. Opportunity for interference by par-
liament to control and regulate executive action, was largely
the result of the financial necessities of the executive head
of the nation ; but, to the extent to which the revenues of
the Crown rendered that executive head independent of
parliament, the government of the nation was frequently
carried on without that body being summoned together.
How the change was gradually brought about, until now
the supremacy of parliament over the executive, is a clearly/
established principle of the British constitution, it is
beyond the scope of this work to trace (A;); but, shortly
stated, it would appear to have been effected by the judici-
ous use of the power over the purse strings, in order to
secure the consent of the Crown to the relinquishment to
parliament of the most important, if not the most numer-

(k) See May’s Const. Hist., Vol. ii. p. 39.

\

MO THE CANADIAN CONSTITUTION.

I ically, of those ‘ common law ‘ powers of the executive-
known as ” the prerogatives of the Crown.” But, at the
time of which we write, the government of Great Britain
was, to an extent very much larger than at present, carried
< m by the exercise of these prerogatives that is to say, was \ largely an executive government and of no department \vas this more true than of the colonial, “the Board of Trade and Plantations.” The very facts to which we have alluded that for very many years after the settlement of Nova Scotia (practically until the B. N. A. Act), no legis- lative interference by the Imperial parliament, in the govern- ment of the Maritime Provinces, took place that provinces were enlarged, divided, joined, all without Act of parlia- ment and that, without Act of parliament, representative assemblies were established therein make manifest the extent to which the government of the early provinces was in the nature of executive government, by prerogative. And yet not entirely so, for in the celebrated case of Campbell v. Hall (I) involving a consideration of the pro- clamation of 1763 (in its relation to Grenada), it was decided by Lord Mansfield, that, although on the acquisition of new territory by conquest or cession, the Crown, without par- liament^ may make laws for the government of the con- quered or ceded territory (m), nevertheless, on the grant to the inhabitants of the right to make laws in and by a representative assembly, the prerogative right of the Crown to make laws in respect of the internal government of the colony is forever gone, and that, thereafter, the Crown stands in the same relation to the representative assembly of the colony as in England to the Imperial parliament L and any withdrawal of the colony’s right-to make laws can -only be effected by the Imperial parliament (n). (/) Cowp. 204. (m) This was one of the prerogatives annexed to the Crown as com- mancler-in-chief a right arising by conquest. (H) See post, Chap. VI., In re Lord Bishop of Natal, 3 Moo. P. C. (N.S.) 148. PRE-CONFEDERATION CONSTITUTIONS. 31 So far, however, as related to the executive functions; of government the administration of public affairs, the execution of the laws of the colonies (whether imposed by imperial or colonial legislative authority); the’;.collection and expenditure of the public revenues, and the appointment and control of the executive officials necessary to these ends the theoretical independence of the executive, which. | as we have show T n> obtained in England, was carried to its |
practical result in the work of government in the colonies.
Theoretically and, indeed, legally, the executive head of
the nation, by virtue of its position as a constituent branch
of parliament, could prevent encroachment by the legisla-
ture upon the prerogatives of the Crown that is, upon the
executive department of government but the financial
necessities of the executive in England, gradually led, as
we have before observed, to the surrender to parliament,,
or at least to parliamentary 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 of a colony, but the financial necessities of the
executive government were, in these early days of our
colonial history, so largely met by the revenues arising
from the sale of the Crown lands, fines, tolls, and other
royalties of various sorts, and, for the balance, provided
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 we
corne to study somewhat more closely the commissions
of the early governors which were in truth the charters
of government in those provinces.

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

32 THE CANADIAN CONSTITUTION.

Brunswick), and Governor Murray (Quebec); and we there-
fore take for comment the first commission which conveyed
authority to summon an assembly in the provinces now
forming part of the Dominion that to Governor Cornwal-
lis (o), of Nova Scotia. ” For the better administration of

.justice, and the management 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 c</t’i’i/ 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 ministers 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.” Subse-
quent appointments to fill vacancies in the council were to
be made by the authorities in En<jl 14 Geo. III. c. 83.

(</) By the 13th sec. the Governor and his council 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 (cap. 88) provision was made for raising a revenue by means of duties on rum, spirits, and molasses, to be disbursed by imperial officers. See the Act ; Houston, Const. Doc. p. 97. PRE-CONFEDERATION CONSTITUTIONS. 35 of holding elections to the assembly, and as to the officers by whom such elections were to be conducted (r}, the Act would, upon cursory perusal, appear to give to the legisla- j ture no control over the executive, more than had been) conferred on the assemblies in the Maritime Provinces; but there is one most important exception, to which particular attention must be given (s). We have not, of course, overlooked the rule of law, that 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 par- liament, in similar case ; but by reason of the refusal to) concede to the colonies the control of the revenues raised’ therein, the colonial assemblies were unable to force consent! Acts in curtailment of prerogative. Not being able tot starve the executive, they were unable to hold the officers j of that department to responsibility for the due perform- / ance of their duties ; and whether they had the confidence of the representative branch of the legislature or not, was a matter of perfect indifference to these executive officers. 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 as we proceed, and the question must now be dealt with. The treatment accorded by Great Britain to her colonies, in the matter of taxation, was entirely regulated by the view taken in England of the necessities of Imperial ” trade and commerce.” At first^of course, the expense of govern- \ ing the colonies was borne entirely by the home govern- ment, but as early as 1672 (t), the Imperial treasury levied tribute upon the colonies, by the imposition, by Imperial (r) A parliament so firm in its claim to exclusive control over elec- tions, as was the British Parliament at that time, could scarcely have done otherwise. (s) See post, p. 39. (t) 25 Car. II. c. 7. 36 THE CANADIAN CONSTITUTION’. Act, of export duties on certain articles shipped from the colonies for consumption elsewhere than in England : the proceeds of which duties were, of course, a set-off to the expense of government in those colonies. During the cen- tury which followed, Imperial Acts were from time to time passed, providing for the collection of both export and import duties, but always as part and parcel of the regula- tion of trade and commerce (u). IiiJ/763^ permanent pro- vision 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 necessary expenses of defending, protecting, and securing 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 Xova Scotia, Prince Edward Island, New Brunswick and Quebec. The abandonment by the Imperial parlia- ment, of the principle that these duties were in the nature of regulations of Imperial trade and commerce only, and the extension of the Imperial power of taxation to matters of excise to laying tribute, in other words, on internal trade 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 Renunciation Act of 1778 (w), 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 commerce : the net produce of such duties to be always paid and applied (M) 14Geo. III. c. 88 (noted above) was a “revenue” Act. See post, p. 3D. (v) See Todd ” Parl. Gov. in Brit. Col.,” p. 1G9, et scq. (iv) 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 “con- ventional” rule to be thereafter followed. PRE-CONFEDERATION CONSTITUTIONS. &7 to and for the use of the colony, province or plantation in which the same shall be respectively levied, in such manner as other duties collected by the authority of the respective general courts or general assemblies of such colony, prov- ince, or plantation, are ordinarily paid and applied,” and this principle was followed until the free trade campaign in England, led to the abandonment of the system of tax- ing trade for the benefit of trade, and, with it, the regula- tion of colonial tariffs by Imperial legislation. During this period, however, the practical result of the colonial system was this. With the exception of such sums as the colonial assemblies were minded to raise (usually by the imposition of customs duties), in order to the carrying on of public improvement and promoting settlement, the revenues which came to the hands of the executive were, (1) the proceeds of customs, excise and license duties] levied under Imperial Acts ; and (2) the hereditary J, territorial and casual revenues of the Crown, consisting of the proceeds of the sale /or lease of the “waste” lands in the colonies, fines, tolls, etc. Over the revenues arising under colonial Acts, the colonial legislatures could, of course, and did insist on retaining power of appropriation, and. so far as these revenues were concerned, could withhold supplies ; but their action in such case made no difference to the executive, however it might do harm to the colony. The cost oj the administration of justice, and of civil government (including, as it did, the salaries of the entire executive staff, administrative and judicial), was paid out of the other two sources of revenue, and over these the colonial assemblies had for many years no power of appro-J priation or control. To secure control of the executive to make them feel responsibility it was indispensably necessary to get control of these revenues and their appro- priation ; and the history of the growth of the principle of ” Responsible government ” is the history of the gradual ‘ acquisition by the colonial legislatures of the right to appropriate revenue, from whatever source within the * 38 THE CAXADIAX CONSTITUTION. colony arising. The ” tenure-of -office ” question practically depended upon this question of control over the purse strings. In all the provinces, the real issue was somewhat obscured by reason of the fact that, under the then ar- rangement, the legislative council, or second chamber, acted as a shield to the governor and his executive council, and was interposed to bear the brunt of^ all attacks upon executive methods. In the earlier stages of colonial his- tory, the executive council was really a branch of the legislature, and it always continued potentially so, by reason of its members forming the influential portion of the Crown-appointed legislative council. This position of affairs, however, gave the disputes between the legislature 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 osten- sibly bent to secure reform in the constitution of the legislative council (x). The real issue, however, was the question of executive responsibility, and, as we have endeavored to point out, that question largely depended upon, and was ultimately solved by, the solution of the more sordid one as to control of expenditure. Perhaps, there was a lack, too, of proper appreciation of the way in which the principle of responsible government was working 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 BuUer, 4 who were able to see through the intricacies of governmental machin- ery and discern the true principle of the British system, (x} J. G. Bourinot, “Responsible Government in Canada” a paper read before the National Club, Toronto, during the winter of 1890-91, and published sub. tit. ” Maple Leaves,” p. 43. PRE-CONFEDERATION CONSTITUTIONS. 39 to point out how that same principle could be made effect- tive in the colonial machinery of government. The first concession gained, was of the power of appro- priating the proceeds of Imperial tariffs in force in the colonies. As far back as “The Constitutional Act, 1791,” this power of appropriation was expressly given to the legisla- tures of Upper and Lower Canada, over the proceeds of all customs duties levied as part of the commercial policy of the Empire ; and this is the point of distinction between the powers of the colonial assemblies under that Act, and under the earlier commissions, to which reference was made a few paragraphs back (y). But the only Imperial tariff Act in force in Canada, was the Act of 1774 a revenue Act (0) ; and because that Act was contended not to come within the terms of “The Constitutional Act, 1791,” express legislation was necessary to give the Colonial legislature control over the revenue arising under that Act. This was | obtained in 1831 (). Still, however, in all the provinces, the ” hereditary, territorial, and casual revenues” to which we have referred were amply sufficient to “pay the piper”; and so far as the salaries of all the executive ” family-compact ” staff were concerned, the legislature had power neither to fix nor withold them. Secure in the enjoyment of the emolu- ments of office, the executive were able to thwart the wishes of the popular branch of the legislature, and to decline to recognize its right to control or regulate their mode of conducting public business. The history of the struggles, which in the Upper Pro- vinces culminated at one time in open rebellion, and in all resulted in the firm establishment of Responsible Govern- ment, is beyond the scope of this work ; but it is curious to (y) Ante, p. 35. (z) See note ante, p. 36. (a) 1 & 2 Wm. IV. c. 23. See Houston ‘Const. Doc.’ p. 106; Andrew v. White, 18 U. C. Q. B. 170. 40 THE CANADIAN CONSTITUTION. note that the contemporary statutory record (b) appears in Acts relating to colonial control of colonial finances, the ” tenure of office ” question appearing only in the ” conven- tional ” aspect of despatches, instructions, etc. (c). Not to dwell at undue length upon this point, we may mention shortly, that first to New Brunswick, and afterward to Canada, (1847), and Nova Scotia (149), full control over the revenues from all sources was conceded ; and having that full control, the Legislative Assemblies slowly, but surely, overcame the stubborn resistance, or active opposi- tion of the governors of the early forties, and the principle of executive responsibility was firmly and permanently established in all the pre-Confederation provinces. We are now, perhaps, in a position to define with some accuracy, the nature of the constitutions existing in the provinces immediately prior to the coming into force of the B. N. A. Act. What Lieut. -Go v. Archibald has said (d) in reference to the constitution of Nova Scotia is clearly applicable to the >
\other maritime provinces : ” No formal charter or constitu-
tion ever was conferred, either on the province of Nova
Scotia or upon Cape Breton while that island was a sepa-
rate province. The constitution of Nova Scotia has always
been considered as derived from the terms of the royal
commissions to the Governors and Lieutenant-Governors,
and from the ” instructions ” which accompanied the same,
moulded from tirne^ to time by despatches from Secretaries
of State, conveying the will of the Sovereign, and by Acts
of the local legislature, assented to by the Crown ; the

(b) 1 (t 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.) See Mercery. L Atty.-Genl. of Out., 5 S. C. E. at p. 700,
et seq., for an historical statement by Gwynne, J., on this subject.

(c) Todcl, Parl. Govt. Brit. Col., pp. 25-6.

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

PRE-CONFEDERATION CONSTITUTIONS. 41

whole to some extent interpreted by uniform usage and
custom in the colony.”

In (old) Canada the form of government was prescribed I
by the Act of Union (e). But as to all the provinces, it 1
can be truly said that their constitutions were modelled on
the pattern of the parent state, both as to their govern-
mental machinery and as to the principle on which they
were operated. In outward form, there is a close resem-
blance between the British constitution and the constitution
of those provinces the same single executive, the same
legislative machinery (even to a second chamber), with
about the same apparent connection between the two de-
partments of government. And upon inquiry further into*
the motive power and the mode of its application, we may
say that just as in the case of the Imperial parliament, so
here in the case of the pre-Confederation provinces, one
will look in vain for any statute laying down the rules
which shall govern in the matter of the formation, the
continuance in office, or the retirement of the Cabinet. The
” conventions of the constitution,” whose slow growth had
gradually culminated in the full recognition of the principle
of executive responsibility to parliament, was by the simple
method we have shortly described by instructiqns._io_ the
governors introduced as the working principle of the pro-
vincial constitutions/ *

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

(e) 3 & 4 Vic. c. 35 (Imp.)

42 THE CANADIAN CONSTITUTION.

inon concern, the provinces resolved that such general
government should be modelled on the British constitution,
and that its executive authority should be administered i
according to the well-understood principles of the British |
constitution. We may say, therefore, 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 ” (f).

(/) Bourinot, ‘ Maple Leaves,’ p. 37.

CHAPTER III.

WHAT BECAME OF THE PEE- CONFEDERATION

CONSTITUTIONS ?

As justification for the last chapter, it was asserted that
in order to establish the Dominion government, and the
federal scheme of the B. N. A. Act, the slate had not been
cleaned ; and we shall endeavor to make good that justi-
fication.

In comparing the British and United States systems of
government, the really federal character of the former
viewed as an Imperial constitution was pointed out ; but
the gradual working out of the federal idea in the Imperial
constitution (through continuous concessions of powers of
self-government to the colonies) was contrasted with the
studied action of the Fathers of the American Union, in
taking this federal idea as the starting point of their
departure (a). The reason is apparent. Thirteen self-
governing communities occupied one compact territory :
their inhabitants were of common origin, and had common
interests ; and they deliberately set to work to establish
a “national” government, charged with the control of those
matters which were deemed of common interest, but, just
as deliberately, they insisted upon preserving their right to
regulate their local concerns in their local assemblies. And
so in relation to the enactment of the B. N. A. Act : there

(a) See ante, Chap. I., p. 5, et srq.

44 THE CANADIAN CONSTITUTION.

was the same fact of pre-existing governments, the same
desire for united action on matters of common concern, and
the same deliberate refusal (based 011 the same desire to
.preserve local autonomy) to establish a legislative union,
or what has been styled a ” Unitarian ” system.

Opinions may very reasonably vary at different periods
as to wlfere the line should be drawn which is to divide
matters of common or ” national,” Trrom matters of ” local ”
concern; and this variation in opinion is manifest in
the assignment to our Dominion government of several
subject matters, which, under the scheme of division
adopted by the convention of 1787, were not assigned
to their national government for example, criminal law,
and the law of ” marriage and divorce ” (b). When the
idea of a Canadian Confederation began to take prac-
tical shape, the United States was in the throes of its
civil war, and the notion w r as prevalent that that war
had been caused by the weakness of the ” national ”
government, arising from including among “state rights”
the^- residuum of power” as it has been termed. That the
war was not caused by any such defect in the division of
the field of governmental action was then pointed out (c),
and has been since fully demonstrated : but the prevalence
here of that notion led the fathers of confederation to
desire a strong central government, and to that end the
“pesiduum <>f fitfww is, under the B. N. A. Act, with the
Dominion government (d). This fact has been much
utilized in argument, to belittle the sphere of authority of
the Provincial governments, and because, as it is put, these
latter are governments possessing only” enumerated powers,”

(b) That the assignment of these (as matters of common concern re-
quiring uniformity of treatment) to the ” national ” government is
more consonant with moilarn ideas, is apparent from the numerous ex-
pressions of opinion from across the line, in favor of an amendment of
the U. S. constitution in these particulars.

(c) See the speech of Mr. C. Dunkin Confecl. Deb., p. 491.
((/ See sec. 91.

PREVIOUS CONSTITUTIONS. 45

the argument is pushed to this length, that the constitutions
of the pre-Confederation provinces were, by the B. N. A.
Act, completely wiped out, and that the powers, both
legislative and executive, of the post-Federation provinces
and without regard to any necessary connection between
these two departments of government are such only as
are to be found expressly set out in the B. N. A. Act. If
that is the result of tfte enactment, never did legislation
fail more egregiously in carrying out of the design of its
promoters. The Quebec Resolutions convey no hint that
the negotiating provinces desired more than to establish a
“federal” union on terms which would be just to the
provinces, and leave their autonomy, as to matters local,
unimpaired. But these Resolutions, if proper to be referred
to at all, can perhaps be cited to aid only in the construc-
tion of doubtful or ambiguous phraseology in the B. N. A.
Act (e), and, therefore, the terms of the Act itself must be
looked at carefully on this point. But, first/ it is necessary!
to advert to the inaccuracy of the phrase, “residuum of
power.” As has already been pointed out, there is not,
under a federal system, any necessary division_^of_^ow;e?’,
in the proper sense of the term f the essential division
which exists, being a division of the subjects proper for
governmental regulation, into two classes of matters
matters of “national,” and matters of “local” concern.
Just what matters belong to the one class, and what to ‘.
the other, is a question upon which, as we have said,
opinion may vary, but whether the matters of “national”
concern are enumerated, and the residuum left as of “local”
concern (as by the U. S. constitution), or the matters of
” local” concern enumerated, and the residuum left as of
“national” concern (as is partially the case with us), is
matter of indifference, so long as the enumerated class is
sufficiently comprehensive to satisfy public opinion, at the
time, as to the proper line of division. But what is essen-

(e) See post, Chap. X.

4(j THE CANADIAN. CONSTITUTION.

tial, is, that to the full limits of the matters entrusted to
each government, national or local, the power of govern-
mental action should be full and complete. It will be
noticed, of course, that the division effected by the B. N. A.
Act is a division of matters for legislative action, but this
must involve a division alone; the same line for executive

O

action. Any other arrangement would be a clear departure
from that principle of the British constitution, upon which
we have dwelt at some length in earlier pages the suprem-
acy of the maker of a law over the executor of that law
a principle which is dominant in every Anglo-Saxon com-
munity, unless, indeed, Canada is now, as is claimed, the
exception, y *

That principle, as we have pointed out, clearly obtained
in the pre-Confederation provinces as the result of the
long struggle for ” responsible government,” and it is im-
portant therefore to ascertain whether, under the B. N. A,
Act, the provincial constitutions <<> ////// ar ; for if so, then
the same connection between the legislature and the execu-
tive, which existed before confederation, must still continue,
with respect to the subjects of provincial cognizance.

Any complication which may exist in connection with
this question has arisen from what has been termed ” the
necessities of the draftsman.” One cause of the support
given in the two parts of (old) Canada, to the scheme pro-
pounded by the Quebec Resolutions, was that it made pro-
vision for the severing of the tie of legislative union
1 x.’tween them : and the carrying out, in one Act of parlia-
ment, of this design and the larger federal scheme,- neces-
sitated first the severance of that tie, and then the creation
by the Act of a federal union between the four provinces.
But, while on the one hand this necessity, and the mode of
meeting it, adopted in the Act, lias provided a small peg on
which to hang an argument adverse to the provinces ( y ‘).

(/) As a matter of construction, it would appear that sees. 5, G and 7,
point merely to the territorial limits to b3 assigned to the different pro-
vinces of the Confederation.

PREVIOUS CONSTITUTIONS. 47

it has also provided several others, upon which a very
strong argument may be heaped, in support of the full
autonomy of the provinces in relation to the subjects
allotted to them. Old Canada being thus divided into its. /
original divisions, with new names, it became necessary i
to make provision for the establishment of new govern-
Ifnental machinery, legislative and executive, in Ontario
and Quebec. Eliminate from the Act all clauses inserted
to this end ; consider Ontario and Quebec as having had
governmental machinery such as existed in the Maritime
Provinces- ; and the Act would clearly appear as an Act for
the establishment of federal machinery only, for drawing i
the line of division between matters propeV for the con-
sideration of the ” general ” government, and those proper |
for the consideration of the ” local ” governments, and for
the making over to the federal government of certain por-
tions of the assets and revenue-producing powers of the
provinces. The very use of the term federal in connection
with the creation of a central government for territory
occupied by previously existing governments, mutually
independent, would seem to imply the continued existence . tJu
of the individual governments, parties to the cedu&; and >f^,
the fact that no provisions were made for NovaScotia and
New Brunswick, similar to those made for Ontario and
Quebec, would appear to point to the conclusion that the
governmental machinery of those provinces was to continue
as before, employed, of course, upon a somewhat smaller
range of matters.

The type of governmental organization in the pre-

\ Confederation provinces was one and the same a single I

executive head (assisted by an executive council), and a

legislature (g) and the principle upon which the whole

I worked in the actual government of the provinces was the

‘ principle of executive responsibility to the electorate

(g) The existence or non-existence of a second chamber is in no way
material.

48 THE CANADIAN CONSTITUTION.

-through the legislating^ The B. X. A. Act makes provision,
as to all the provinces, for a single executive head in each,
but judging from the absence of any provision for the
appointment of the Governor-General, it may be doubted if
such provision would have been exprcxxly made in regard to
the Lieut.-Governors, had it not been intended to alter the
mode of appointment, so as to make each provincial execu-
tive head, a link in the chain of federal connection (h). As
to the ‘ powers, authorities, and functions ” of that execu-
tive head, they are particularly mentioned only as to
Ontario and Quebec (i), and as to those two provinces only
so far as they were dependent for their existence ujnm
vftitii.tes, either of the Imperial parliament or the parlia-
ments of (Old) Canada. This latter limitation has been
urged as supporting the view that certain of the ” powers,
authorities, and functions ” =those depending for their effi-
cacy upon the common law exercisable by the Governors
(or Lieutenant-Governors) of the pre-Confederation pro-
vinces, are now, even as to matters within the legislative
authority of Ontario and Quebec, exercisable only by the
Governor-General.

We shall deal with this contention in a moment, merely
remarking now that such a construction of the Act, would
create diversity in the position of the different provinces.
and would be a departure from the principle insisted on. as
apparent throughout the British constitution the co-ex –
tensive and complementary sphere in government, of the!
executive and legislative departments. The matter material
to b3 now noted is, that these Ktntatnry powers had been
conferred upon the holder of a particular office which was
now to be divided, and therefore a statutory re-allotment,
so to speak, had to be made. The language of the section
-to which we are now referring (sec. 65), and of what may
.be called its companion section (sec. 12), bears out, too, our

(h) Compare sees. 10 and 58, B. N. A. Act, 1867.
(i) B. N. A. Act, sec. 65.

PREVIOUS CONSTITUTIONS. 49

criticism of the phrase, ” division of power,” inasmuch as
both sections careully avoid using any such term as
” division.” Treating the ” powers, authorities, and func-
tions” conferred by previous legislation as a sum total, they
carefully provide that all these powers, etc., so far as theyj
are capable o being exercised after the union, in relation to j
the government of the Dominion and the provinces respec- j
tively, shall be vested in the Governor-General, or in the/
Lieu tenant-Governors, as the^cjjS^anj^jceefHire.

To revert now to the argument founded on the limita-
tion of sections 12 and 65 to statutory “powers,” etc. We
have already indicated “the necessities of the draftsman,”
as the reason for their insertion in the Act. But for that
necessity, they would not have appeared, and we should
have to look to some other part of the Act in order to
ascertain the position of the executive head of the different
provinces, as, indeed, we have to do with reference to Nova
Scotia and New Brunswick. If there were no express
provision, we should still contend that, as executive head
of the province, a Lieutenant-Governor is invested with all
the ” powers, authorities, and functions ” necessary to carry
on the government of the province that wherever provin-
cial legislation requires, in order to its complete and efficient
enforcement, the sanction of executive action, all the “powers,
authorities, and functions” (prerogative and otherwise)
necessary to such enforcement, reside in, and are exercise-
able by, the executive head of the provincial government
(j). But we are npt limited to this application of legal
principles, incontestable though they be. Sec. 129^ of the
B. N. A. Act is clear upon this matter :

” Except as otherwise provided by this Act, all laws in force f-
in Canada, Nova Scotia or New Brunswick, at the Union, antl
all courts of civil and criminal jurisdiction, and all legal commis-
sions, powers and authorities’, and all officers, judicial, administra-

(j) See judgment of Burton, J.A., in Atty.-Gen’l (Can.) v. Atty.-
Gen’l (Ont.), 19 O. A. E. 38.
CAN. CON. 4

50 THE CAN ADI AX CONSTITUTION.

tive and ministerial, existing therein at the Union, shall continue
in Ontario, Quebec, Nova Scotia, and New Brunswick respectively,
as if the Union had not been made, subject nevertheless (except
with respect to such as are enacted by, or exist under, Acts of the
Parliament of Great Britain, or of the Parliament of the United
Kingdom of Great Britain and Ireland), to be repealed, abolished
or altered by the Parliament of Canada, or by the legislature of
the respective province, according to the authority of the par-
liament or of that legislature under this Act.”

The language of this section is very comprehensive. It
continued the whole body of pre-existing laws and legal
institutions, ” except as otherwise provided by this Act “;
and excepting Imperial Acts and institutions existing
under Imperial Acts, it divided the entire field of law (in
its widest sense) between the Dominion and the provinces,
” according to the authority of the parliament or of that
legislature under this Act.” This body of law would in-
clude every branch of jurisprudence the lex preroy1.ini as
well as the other branches. Combined with sec. 12, it
carries the whole executive power incident to the legislative
sphere of authority of the Dominion parliament, to the
Dominion ; and, combined with sec. 65, it has precisely the
same result in relation to the government of the provinces (/).

With regard to the executive council in each province
in other words, the Cabinet we have to point out that
no provision is made for such a council in New Brunswick
or Nova Scotia, beyond what may be gathered from the
express enactment that the constitution of the executive
authority in those two provinces, should continue as Vt’ore
the passing pf the B. N. A. Act ; while, in regard to Ontario
mid Quebec, the appointment of the first officers who are to
constitute the executive council in those provinces is pro-
vided for. There is this difference, too, to be remarked
between the section of the Act which provides for the

>

(k) Dobie v. Temporalities Board, L. R. 7 App. Gas. 130; and see
notes to B. N. A. Act, sees. 12, 65 and 129, post.

PREVIOUS CONSTITUTIONS. 51

Privy Council of the Dominion (sec. 11) and the correspond-
ing section as to the executive councils of Ontario and
Quebec (sec. 63), namely, that the latter seems to take it
for granted (if we may use the expression), that there is to
be an executive council in those two provinces ; while the
former distinctly provides that ” there shall be ” a Privy
Council for Canada. It may here be remarked that
nowhere in any statute book will be found any Act which
lays down that such executive council shall continue to
hold office only so long as it commands the confidence of
the legislature ; but the existence of that ” convention of
the constitution,” and its raison d’etre, have been already
dealt with at sufficient length, and no one, we fancy, would
argue that any significance attaches to its absence from the
B. N. A. Act.. As put by Lord Russell, in his famous dis- c
patch (I), of September 7th, 1839, conveying to Lord Sy den-
ham his ” instructions ” as to the government of Upper
Canada : ” It is evidently impossible to reduce into the
form of a positive enactment, a constitutional principle of
this nature.” But not only is the appointment of the first
members of the Cabinet provided for in the case of Ontario
and Quebec, but provision is also made as to their ” rights,
powers, duties, functions, responsibilities or authorities “-
the draftsman was certainly exhaustive in his phraseology
and what has just been said as to the sections dealing
with the powers, authorities and functions of the executive
head, is equally applicable to sec. 135, which makes this
provision as to the executive officers under him. All the
” powers, etc., etc.,” which the executive officials named, had
in relation to the government of Canada, are to be vested
in the officers of the provincial governments, in relation to
those governments. There is no division of power, but of
sphere of authority only.

Equally significant of the continued existence of the ^
pre- Confederation constitutions, are the clauses of the

(I) Can. Ass. Jour., 1841, pp. 390-6, App. BB.

52 THE CAXADIAX CONSTITUTION.

B. N. A. Act, dealing with the constitution of the legisla-
tive authority in the provinces (m). For Ontario and
Quebec, legislatures had to be provided. The constitution
of those legislatures is, of course, entirely the creation of
the B. N. A. Act ; but, so far as the creative clauses are
concerned, there is nothing to indicate any difference in
principle, between the constitution of those legislatures,
and the constitution of other colonial legislatures, beyond
the absence in the ” constitutional ” statutes relating to

o

those other colonies, of any division of the sphere of
their legislative authority. But for Nova Scotia and New
Brunswick no legislatures were created, it being provided
(just as had been provided with regard to the executive) that
the constitution of the legislature of each of those provinces
should continue as it existed at the Union. The House of
Assembly of Nova Scotia, as it happened, had been dis-
solved, so that new provincial elections were necessary,
and, in order to save expense, it was provided (n) that
such new elections should take place at the same time as
the first elections for the House of Commons of the
Dominion. But, as to New Brunswick, its House of
Assembly was still alive, and it was expressly provided that
it should continue (unless sooner dissolved) for the period
for which it had been elected. As to both Nova Scotia
and New Brunswick, the B. N. A. Act contains no provision
for the summoning of their Assemblies, for the length of
time they” should live, for yearly sessions, or as to the
conduct of their business ; as to all of which matters,
minute provision is made as to the legislatures of Ontario
.; and Quebec (o).

The group of clauses (p) of the Act, dealing with the
division of the assets of the provinces, between those prov-
inces and the Dominion, bears throughout marks of the

(m) Sees. 69-90. (n) B. N. A. Act, sec. 80.

(o) Note, however, sec. 9 ?, s-s. 1, post.
<p) Group VIII , sees. 102-126. PREVIOUS CONSTITUTIONS. 53 draftsman’s idea that the pre-Confederation provinces con- tinued ; they “shall retain all their respective public property not otherwise disposed of in this Act ” (q) ; and certain duties and revenues are “reserved to the respective legislatures of the provinces (r).” The division of the group of miscellaneous provisions (s) into “general,” and “Ontario and Quebec” is in itself significant, and the absence of provisions for New Bruns- wick and Nova Scotia, similar to those made to meet th’e needs of the newly created governments of Ontario and Quebec provisions as to the executive staff; as to the Great Seals to be used ; as to the construction of temporary Acts of the parliament of old Canada, etc. would seem to make it perfectly clear that the constitutions of the pre- Confederation provinces “by the sea,” at all events, were not intended to be destroyed, and at most, it can only be said, that the constitution of old Canada was re-cast and made into two, each on the same pattern as the one had previously exhibited. Upon consideration, it would appear that the really essential point to be determined in connection with this controversy, is the actual presence in the provincial \ machinery of government (in their constitutions,, in other , words,) of the same working principle as was present in ‘ the constitution of the pre-Confederation provinces. As to, Nova Scotia and New Brunswick, there can be no doubt, as the B. N. A. Act is distinct, that the constitution of the executive and legislative authority in those provinces and these two departments comprise the whole round of govern- ment shall continue ; and the controversy must therefore be limited to Ontario and Quebec. And as to these two provinces, it has already been (remarked that the clauses which create their legislative aad executive machinery (q) Sec. 117. (r) Sec. 102; ani see also sec. 126. (s) Group IX.; sees. 127-144. 54 THE CANADIAN CONSTITUTION. | differ in no essential respects from the similar clauses in other Imperial Acts creative of colonial constitutions, the presence in which of the principle of the co-extensive and complementary nature of the executive and legislative : powers in government, cannot be gainsaid. No Act, Imperial or Colonial, has ever expressly so enacted ; but it I is the legal principle of the British constitution, and of the colonial constitutions of the Empire as well. And when we find, as a comparison of the various “constitutional Acts” for the colonies will show, that the machinery of govern- ment provided by those Acts is “all of a piece,” an argu- ment is afforded in favor of, rather than against, the existence of the same working principle in each. Compare, for instance, the clauses of the B. N. A. Act, creating the executive and legislative machinery of the Dominion gov- ernment, with those creating the like machinery of the governments of Ontario and Quebec, and both sets of clauses with the similar provisions of the Acts relating to (say) the Australasian colonies, and no essential difference can be found (t) nothing to indicate that in one the l&w-makiny power is supreme over the authority which executes that law, and that in another the two are not co-terminous. The fact is, that government is one, and indivisible. The “sanction” of a law is executive action, and no impossible attempt to create two independent powers in relation to any given subject matter, is made by any of these “Constitutional Acts.” (0 Compare B. N. A. Act with the Union Act (3 & 4 Vic. c. 35), and with the Constitutional Acts of New South Wales (5 & 6 Vic. c. 76; 7 A- 8 Vic. c. 74 ; 13 & 14 Vic. c. 59, etc.) ; of Victoria (13 & 14 Vic. c. 59; 18 & 19 Vic. c. 55, etc.); of Newfoundland (5 & 6 Vic. c. 120; 10 & 11 Vic. c. 44), and of Queensland (24 & 25 Vic. c. 44). See Forsyth, Constitu- tional Law, p. 27, for an enumeration of the various ” Constitutional Acts” for the colonies. PART II. THE RESULTS OF OUR COLONIAL STATUS. CHAPTER IV. WHAT IMPERIAL ACTS AFFECT US? While we have, in the preceding chapters, endeavored to distinguish clearly between the ‘ ccte; and the “conven- tions ” of the constitution, we have necessarily had to deal with both. In the light of the conventions of the constitu- tion, the parliament of the United Kingdom has been described as a legislature possessed of a dual nature, par- taking of the character both of an ” Imperial ” parliament and of a “local” parliament for the United Kingdom. It must be again admitted, however, that although, by those usages and precepts of the constitution, the field of govern- ‘ mental action properly to be occupied by the Imperial parliament, is practically though not yet perhaps very definitely limited, the law of the constitution recognizes ! no limit capable of judicial enforcement. For the whole British Empire, legislative sovereignty resides in the Imperial parliament, and when that body undertakes to legislate for the colonies generally, or for any one of them in particular, its enactments are a law unto such colony, binding on its inhabitants, and peremp- torily requiring recognition by the judges in its courts (a) > and no colonial legislature has power, directly or by a side
wind, to alter, in one jot or tittle, any such Imperial enact-

() Letter by Historicus, in London Times, June 1, 1879 ; Dicey, Law
of the Const. ; Clark, Colonial Law, 10.

56 THE CANADIAN CONSTITUTION.

ment (&). That, in certain instances, colonial legislatures-
have been empowered by Imperial legislation (c) to exclude
their particular colony from the operation of some par-
ticular Act usually upon terms is the exception which
proves the rule. It must be kept clearly in mind, that we
) are not now discussing the ” conventional ” limits set to
I this legislative sovereignty. For the judge and the lawyer,
there are no limits ; for them there is, in the performance
of their respective duties, no escape from the “literary
theory.” They have to do with legal rights ; and, for
Canada at least, legal rights are, in the ultimate analysis,
founded upon Imperial enactment. By Imperial enactment,
we enjoy representative government ; by Imperial enact-
ment, that enjoyment could be (as once indeed it has been)
taken from us ; by Imperial enactment, the legislative power
conferred upon our parliaments, has been more or less
limited ; by Imperial enactment only, can a change be
effected in those [limits. No power, even its own, can tie
the hands of the Imperial parliament (d) ; and the boundaries
set to colonial freedom of action in one session of that par-
liament may be enlarged in the next, and again restricted
^in a third. And as in these larger matters, so in any the
smallest question (e) involving the legal rights of the
individual, if she will, she legally may, and every British
judge, in every part of the British Empire, is bound to give
effect to the expressed will of the Imperial parliament
So well settled is the paramount legislative authority of
the Imperial parliament, that English judges have not
hesitated to lay it down that :

“If the legislature of England in express terms applies
its legislation to matters beyond its legislatorial capacity,

(b) Craw v. Ramsay, Vaugh., 292. See post, Chap. IX.

(c) E. fj. 9 & 10 Vic. c. 94, empowering the colonies to repeal Imp.
tariff Acts.

(d) Auchterarder case, Mac. & E. (H.L.) 238; Dicey, Law of the
Const., 61.

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

WHAT IMPERIAL ACTS AFFECT US ?

an English court must obey the English legislature, how-
ever contrary to international comity such legislation may
be”(/).

It may perhaps seem that we have dwelt with undue
emphasis on this point, but a glance at some Canadian
authorities will make it apparent that, even on the bench,
the legislative omnipotence of the Imperial parliament
perhaps we should rather say the legislative impotence of
our colonial legislatures to alter an Imperial enactment
has not been admitted in its entirety without much dis-
cussion. Moreover, a clear recognition of this fundamental
fact in the structure of the Canadian constitution, should
tend to make our statesmen all the more careful that the
limits within which this omnipotence is to have “conven-
tional” scope, are clearly defined. The ultimate legal
power whose mandates must be judicially enforced
residing abroad, our right of self-government should not
depend on uncertain usages, but on clearly expressed
guarantees.

How are we to know when an Imperial Act extends \
by its own inherent force to a colony ? It was never con-
tended that English statutes were operative beyond the
bounds of the United Kingdom, unless, upon a reasonable
construction, there appeared the intention that they should
so operate (g). For a long time this question of construc-
tion was unaffected by any statutory enactment, but at the
present time the Imperial Act, 28 & 29 Vic. c. 63, pro-
vides the canon of construction “An Act of parliament
or any provision thereof shall . . be said to extend to
any colony, when it is made applicable to such colony by
the express words or necessary intendment of any Act of
parliament.”

(/) Niboyet v. Niboyet, L. II. 4 P. D. 20; and see Reg. v. Keyn,.
L. R. 2 Ex. D. 152, 160, 207 ; Reg. v. Anderson, L. R. 1C. C. R. at p. 167.

(fi) I Blackstone, 107, et seq. ; Santos v. Iliidge, 8 C. B. N. S. 869, 887 ;
Routledge v. Low, L. R. 3, E. & I. App. 113; Penley v. Beacon Assce.
Co., 10 Grant 428; Sussex Peerage Case, 11 Cl. & F. 146. See further
on this point, post. Chap. IX.

5S THE CAXADIAX CONSTITUTION.

A very different question this, from the question, how
far English statutory law, of no expressed colonial applica-
tion, has been, by Imperial grant or colonial adoption,
embodied in the legal system of a colony. We are now
dealing with Acts of the Imperial parliament, which, when
passed, were, by ” express words or necessary intendment,”
made applicable to our colony. The former question will
be found treated in subsequent pages; but it may now be
mentioned that, as a general rule, it is limited to a considera-
tion of the English statutory law as it existed at the time of
the introduction of English law into the colony. Imperial
enactments of a general character, passed subsequently
to such introduction, are not operative within the colony
(//). But it follows from what has already been laid down,
that there can be no time limit with regard to the class of
Imperial enactments now under discussion. Of course, in
the case of statutes passed prior to the acquisition of a
colony, there must be the ” express words or necessary
intendment” requisite to make such enactment applicable
to colonies to be thereafter acquired ; but it is simply a
question of construction an enquiry as to the intention of
the Imperial parliament.

It also necessarily follows from what we have said, that
any colonial enactment inconsistent with an Imperial en-
f actment on the same subject which is the earlier and
which the later, makes no difference is inoperative ; and
so far did the English authorities carry this doctrine of
” repugnancy,” that colonial enactments inconsistent with
the principles of the English common law, as well as those
inconsistent with Imperial enactments (of the class we aiv
now discussing), were considered inoperative ; and ” repug-
nancy,” in one portion even, was considered to invalidate

(h) Harrison v. Spencer, 15 O. R. 692 the ” Thellusson Act,” 39 & 40
Geo. III. c. 9 (Imp.) ; Rex v. Vaughan, 4 Burr, 2500 ; and cases cited in
last note; and see Jamss v. McLean, 3 Allen, 164 (Nova Scotia), in which
2 Geo. II. c. 23 (Imp.), was held not to apply to a colony settled before
the Act was passed.

WHAT IMPERIAL ACTS AFFECT US ? 59

the whole of a colonial enactment. It cannot be said that
the authorities were clear to the extent mentioned, but
there was a respectable opinion tending in that direction (?’).
The Act to which we have already referred (commonly
known as “The Colonial Laws Validity Act, 1865,”) was \
passed to clear away these uncertainties. It recites that
doubt had been entertained respecting the validity of divers
laws enacted, or purporting to be enacted, by colonial legis-
latures, and respecting the powers of such legislatures, and
after laying down the canon of constructicn already quoted
it enacts :

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

“III. No colonial law shall be, or be deemed to have been*
void or inoperative on the .ground of repugnancy to the law of
Enyla.ntl , unless the same shall be repugnant to the provisions of \/
some such Act of parliament, order, or regulation, as afore-
said ” (j).

Commenting on this Act, Willes, J. (in delivering the
unanimous judgment of the seven judges of the Exchequer
Chamber, in Phillips v. Eyre, involving a consideration of
a certain ” Act of Indemnity ” passed by the legislature of
Jamaica), says (k) :

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

(i) Bowman v. Middleton, 1 Bay, 252. This limitation has even been
suggested as applying to Imperial legislation 12 Rep. 76; see Dicey,
Law of the Const., 59, note 1.

(j) 28 & 29 Vic. c. 63 (Imp.).

(k) L. R. 6 Q. B. at p. 20.

(I) Because ex post facto legislation. See In re Goodhue, 19 Grant,
366 ; and post, Chap. IX.

60 THE CANADIAN CONSTITUTION.

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

This objection, too, was overruled ; but, as we shall have
to touch upon this particular class of objection to colonial
legislation at a later stage, we omit further comment here.

As we have already intimated, it has been seriously
contended in the courts of this country that, under what is
I known as the Constitutional Act, 1791 (?i), the Imperial
parliament had so far, at least, as concerns Imperial statutes
of a date prior to its passage given to the legislatures of
Upper and Lower Canada power to anfrul, by direct repeal
or inconsistent enactment, Imperial legislation of express
colonial application.

j In 1836, in the case of Gordon v. Fuller (o), it was
decided that the first section of the Imperial Act, 5 Geo II.,
c. 7 (to the fourth section of which we trace our fi. fa>

(m) See further, as to what constitutes “repugnancy,” Reg. v. Sher-
man, 17 U. C. C. P. Ki7. Reg. v. Slavin, ib. 205, seems to lay down bad
law (pp. 210-11), that, because a Canadian Act is later than an Imperial
Act, “the question as to any conflict between them does not arise.’*
Reg. v. Sherman seems to foreshadow this error.

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

WHAT IMPERIAL ACTS AFFECT US > 61

lands) (p), respecting affidavits to be made in England for
proof of debts sued for in this colony, was not repealed by
the provincial Act, (32 Geo. III. c. 1, s. 5), but from the
judgment of the court, Mr. Justice afterward Chief Justice
Macaulay dissented ; and, in order to appreciate the force
of the opinion delivered by Chief Justice Kobmson in support
of the judgment of the court, we quote first from that dissent-
ing opinion ; and, as these earlier opinions contain a large
amount of clear and instructive historical statement in
reference to the early constitutional history of this country,
we venture to give them somewhat at length. Mr. Justice
Macaulay says :

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

(p) See the very interesting case, Gardiner v. Gardiner, 2 U. C. Q. B.
(O. S.) 554, in which the right of a creditor to sue out a fi. fa. lands, is
exhaustively discussed.

(i2 THE CANADIAN CONSTITUTION.

perhaps contemplated only those contracted in England. First,
as to the power : I consider it imparted by 31 Geo. III. c.
31, which is very comprehensive, and almost unlimited in its
terms : . . . . Subject to the exceptions therein expressed, I do
not see that the powers of the colonial legislatures are otherwise
abridged, so far at least as respects the laws in force at the time
it was first organized, however liable to control by subsequent
Imperial statutes, naming the province, or including it in a more
general allusion to the North American possessions …. The
King has almost unqualified power to make laws, binding upon
and within the province, with the advice and consent of the
legislative council and assembly ; not as a mere prerogative
right, or under a system of government established by commis-
sion as a royal government emanating from the grace and pre-
rogative powers of the Crown, but by virtue of a British statute,
which says that all laws so made (if not repugnant thereto) shall,
by virtue of that Act, be valid and binding ; and in order not to
abridge the superintending control of his Majesty’s government,
a double negative is granted to his Majesty, who may annul and
disallow Acts, although assented too in his name by the governor
or lieiftenant-governor representing him in his provincial parlia-
ment here. With these and other such qualifications and safe-
guards as the Imperial parliament deemed expedient, free scope
is given to the action of the colonial legislature in all other
‘ respects ; so much so, that I cannot but reijard the provincial statute,
ir/n’n ilnhj jxiKsed, of equal force within the produce with British
statutes, when not repugnant to 31 Geo. III. c. 31. In other
words, I feel constrained to read the fifth section of our first Act
(<l) as if it had been incorporated in 31 Geo. III. c. 31, and formed one of its provisions, and conceive it competent to the provincial parliament (as a mere question of power) to exclude the operation of 5 Geo. II. c. 7, in any or in all respects by an Act duly assented to by or on behalf of his Majesty ; and, if so, to produce the same effect by implication arising from the intro- duction of incompatible or other contradictory regulations. . . . . The second inquiry whether this clause of it has been excluded. No provincial Act mentions it by name, and, conse- (‘/) 32 Geo. III. c. 1 (U. C.), introducing English law into Upper Canada. WHAT IMPERIAL ACTS AFFECT US ? (53 quently, if effected, it must be by implication. I have already quoted the clause of our first Act, which, in furtherance of the previous clauses adopting the law of England, prescribes the rule of evidence and the forms thereof. . . . Regarding the whole scope and spirit of our provincial Act, from the first to the last, so far as respects the general adoption of the law of England, it appears to me that 5 Geo. II. c. 7, s. 1, was not repealed, but excluded from operation here by implication, especially by the 5th section introducing inconsistent provisions.” And he proceeds to intimate his opinion that the Imperial statute, 6 Geo. IV. c. 114, which declares void all laws, by-laws, usages, or customs, repugnant to that or other British Acts, referred only to ‘laws, usages, etc., founded upon the old systems of colonial government by charter I or otherwise,’ and not to laws made by colonial assemblies 1 constituted under an Imperial statute. ‘Chief Justice Robinson, in delivering the judgment of the court, says : “As a general principle bearing on our introduction of the English law, civil and military, I think . . . tfcat this general adoption (r) of them was not intended to supersede any particular provision that had before been made in respect to a certain matter, by a competent legislative authority, applying itself particularly to the colony. It was an Act to give a general, rule in cases not specially provided for. On the other hand, I. think this provision of 5 Geo. II. c. 7, does not come within i the 46th section of 81 Geo. III. c. 31 ; and that if it depended ( on the question whether that clause (and that clause only) disabled our legislature from repealing it, it would not now be in force. To receive such an affidavit in proof of debt at the trial does certainly militate against the rules of evidence as established in England, and, therefore, after the passing of our provincial statute, 32 Geo. III. cap. 1, it cannot be admitted, unless, 1st, it can be held that the repeal of the British statute, 5 Geo. II. c. 7, is not within the intention of the statute 32 Geo. III. cap. 1 ; or, 2nd, -was not within the power of the colonial 1 legislature.” I (r) i.e. by 32 Geo. III. c. 1, (U. C.) ’64 THE CANADIAN CONSTITUTION. Then, upon a consideration of the provincial Act, 32 Geo. III. c. 1, he concludes that there is no evidence of intent to repeal ; and proceeds : ” Secondly. If the legislature intended the repeal, had they the power ? “1st. The direct effect of such repeal would be to take from persons resident in Great Britain, conveniences secured by an express British Act of parliament to them, and them only; and I cannot conceive that 31 Geo. III. c. 31, gives to this legis- lature such a power. . . . Nothing can be more repugnant to any Act than an attempted repeal of it, and the consequence of being illegal and void must follow, unless the effect of 31 Geo. III. c. 31, is to make our legislature independent of the pro- visions of the imperial statutes respecting ‘repugnancy.’ It may be contended that it has that effect 1st, because parliament delegated the power to make laws for the colony to our legislature, having the concurrence of the King ; and that all that is done by ihis delegated authority (within their scope) is to be regarded as if done by the British parliament on the principle of execution of po\^rs. 2nd. By specifying . . . certain exceptions to this power, which do not embrace such a subject as that in question, we must take it there are to be no other exceptions, and that all laws passed in this province not coming within the exceptions . . . and not repugnant to the constitutional Act which creates the power, must be within the competence of our colonial legislature. But to this, I answer 1st. That the power is to make laws to operate directly only on the peace, welfare, and good government of this province (though indirectly they may affect which is inevitable persons resident out of it), and that it does not reasonably extend to the repeal of an Act of the British parliament expressly passed to afford facilities to British subjects resident in England. . . . 3rd. That the British parliament did not mean to give to this colonial legislature, authority to repeal Acts of parliament prior to 31 Geo. III. expressly binding in the colony (and especially such as did not concern the colony merely), is evidenced in the strongest manner by G Geo. IV. c. 114, s. 49 for it provides expressly that all laws in force or practice in any WHAT IMPERIAL ACTS AFFECT US ? 67 vast Empire, having other colonies exercising similar legislative powers to our own. If any one colony, by passing laws, or re- fusing to pass laws, produced a state of things which created difficulty with a foreign state, the whole nation might be in- volved in a calamitous war from the imprudence or recklessness of a very unimportant colony. Considered in this light, it appears to me that the statute which we are discussing relates to the conduct of citizens of the Empire towards foreign states and people, and is on a subject which must be disposed of and legislated upon by the Imperial parliament, as representing the supreme legislative power of the nation, and as to which it is necessary that all the subjects of the Crown should alike be bound. The very preamble of the Act states that the proceed- ings which the statute prohibits may be prejudicial to, and endanger the peace and welfare of the Kingdom.” And again, in Keg. v. Taylor (w), Chief Justice Draper, in considering the term ” exclusive,” in the 91st section of the B. N. A. Act, construed it as ” intended as a more definite or extended renunciation, on the part of the parlia- ment of Great Britain, of its powers over the internal affairs of the new Dominion than was contained in the Imperial statutes, 18 Geo. III. c. 12 (x\ and 28 & 29 Vic. c. 63 (y)” overlooking apparently the fact that such a renunciation would be of no legal effect whatever in restraining future parliaments from legislative interference in the internal affairs of Canada, if so ill-advised as to take such an “uncon- ventional ” step. This interpretation of that term ” exclu- sive” has, in subsequent cases, and by other judges, been very emphatically dissented from, and the general principle \ of the legislative supremacy of the Imperial parliament \ clearly laid down (0). (w) 36 U. C. Q. B. at p. 220. (x) The celebrated Eenunciation Act; see ante, p. 36. As to the legal effect of this renunciation, see charge of Blackburn, J., in Reg. v. Eyre, reported by Finlayson. (y) The Colonial Laws Validity Act, 1865. (z) Smiles v. Belford, 1 O. A. R. 436 ; Reg. v. Coll. of Phys. 44 U. C. . B. 564. 08 THE CANADIAN CONSTITUTION. In the Maritime provinces, where Imperial Acts relating to navigation were frequently invoked in the Vice-Admir- alty Courts existing in those provinces, a clearer view seems to have prevailed as to the operation, within the colonies, of such Acts ; and numerous cases are to be found in which, without question, effect was given to their pro- j visions. It would appear, however, that the view was I pressed in argument there, just as it was in the courts of the upper province, that a provincial Act, assented to by the Crown, was of equal validity with an Imperial Act, and if later in point of time than an Imperial Act with which it might appear to clash, it should be given effect to, in preference to such Imperial Act. In the case of ” The Bermuda ” (a), an attempt was made to attach prize money in the hands of a prize agent, under the provisions of the Nova Scotia statute, 1 Geo. III. c. 8; but it was held by Dr. Croke that this could not be permitted ; that the Nova Scotia statute was in this particular “repugnant” to the Imperial “Prize Act,” 49 Geo. III. c. 123, and therefore, to that extent, void. He, however, notices the contention we have referred to, in favor of the validity of the Provincial Act, and thus disposes of it: ” Considering it in another point of view, and giving it every possible validity, still the British Act must be allowed to be of equal authority, and then the provincial Act must be taken to be substantially repealed, so far as it is repugnant to the British Act, which is of a later date.” We may also refer to “The Providence,” in which the provisions of the English Navigation Act (12 Car. II. c. 18) the second section of which was directed against alien traders was enforced in Nova Scotia against an American trader, in 1820 (&). That section, being of express colonial application, and not repealed by any subsequent Imperial Act, was held by Dr. Croke to be still in force in Nova Scotia, ” though not often acted upon.” (a) Stewart, 245. (b) Stewart, 186. WHAT IMPERIAL ACTS AFFECT US ? 69 And in like manner the English Bankruptcy Act (12 & 13 Vic. c. 106) was held to apply to Nova Scotia so far as to discharge the bankrupt from debts there incurred^ and an attachment of debts due to him, issued after the fiat, was set aside (c). When an Imperial Act, made applicable by express j words or necessary intendment to any colony, is (even after ‘ the establishment of a legislature in such colony) repealed by an Imperial Act, such repeal is operative in the colony. This was one of the points for decision in the old case of /)Bank of Upper Canada v. Bethune (d), in which it was endeavored to subject the Bank to the disabilities imposed by the English Bubble Acts. The earlier one of these Acts had been repealed by an Act of the Imperial parliament, 6 Geo. IV. c. 91, and in pronouncing the judgment of the court, that by reason of such repeal the Bubble Acts were no longer in force in Upper Canada, Robinson, C.J., brings out clearly : 1st. That the Quebec Act, 1774, and the Provincial Act, 40 Geo. III. c. 1 (upon which two Acts our enjoyment of the criminal law (e) of England rests), were not intended to refer to Acts expressly, or by necessary intendment, made applicable to the colonies in general, or to Canada in par-j ticular. 2nd. That such Acts continued to be, as they had always been, in force here by their own inherent vigor alone ; and 3rd. That a repeal by Imperial Act would wipe them out of the list of colonial laws. It goes without saying (c) Hall v. Goodall, 3 Murd. Epit. 1-19 ; Fraser v. Morrow, 2 Thomp. 232, and see also ” The Friends Adventure,” Stewart, 200; ” The Fama,” Stewart, 112; and Congdon’s N. S. Dig. 1336, et seq. , and Steven’s Dig. N. B. sub. tit., ” British Statutes.” (d) 4 U. C. Q. B. (0. S.) 165. (e) The argument is equally applicable in reference to the Act 32 Geo. III. c: 1 (U. C.), introducing English civil law. 70 THE CANADIAN CONSTITUTION. that his views are very clearly expressed, and we venture therefore to quote somewhat at length from his opinion : ” My opinion is, that the first Bubble Act has not been in force in this province since the repeal of that statute by the Imperial parliament in their Act of 6 Geo. IV. c. 91. While it was in force, I think it derived its obligations in the colonies, first and principally, from the very words of the statute itself. It was passed in order that its provisions might extend, not merely to London and other parts of the Kingdom, but also to Ireland and ‘ other his Majesty’s dominions.’ It was in force in the colonies by the same act of legislative authority, and its obliga- tion rested on the same foundation in the colonies as in Eng- land. …. When, therefore, the legislature determined it to be expedient that the first Bubble Act, or rather those clauses of it which are now in question, should be repealed, and that the several undertakings, attempts, etc., therein prohibited should be left to be dealt with according to the common law, they did, in my opinion, absolve the application of that statute as plainly and as fully in the colonies as in other parts of the Empire where it had been in force. Of course, that must be the effect, unless some statute passed in England or in this- colony since the first Bubble Act prevents it. The second Bubble Act, 14 Geo. II. c. 37, .cannot, as I think, have that effect. It was never anything but a mere supplement to the first Bubble Act. Omne accessor ium sequitur suum principale. The latter statute has nothing to stand upon if the former has been withdrawn. Then we must next consider the effect of ” The Quebec Act, 1774,” introducing the criminal law of England into the province of Quebec, and of our provincial statute, 40 Geo. III. c. 1, declaring that the criminal law of England, as it stood on 17th September, 1792, shall be the criminal law of this province. Neither of those enactments, in my opinion, were intended to affect, or can properly be construed to affect, the question whether the Bubble Acts are now in force in this province. ” By the Quebec Act, 1774, the British parliament clearly designed to give to Canada the criminal law of England, as to those objects and in those matters for which no special provision WHAT IMPERIAL ACTS AFFECT US ? 71 had before been made by parliament. That statute had no intended reference to Acts of parliament which, from their very terms, already were as much in force in the colonies as in England, and which consequently required no introduction at that period. It left those special laws as they stood. Upon any other principle, if there had been particular penal statutes then in force applying solely and exclusively to the colonies, and form- ing no part of the law of England, we must have held such statutes to be virtually repealed by the Quebec Act, 1774, giving us the criminal law of England, though clearly such an effect never could have been intended. The Bubble Acts ‘were not peculiarly the law of England they did not come to us as introduced by The Quebec Act, 1774; they were part of the criminal law of England, and of the other colonies before, and they continued to be so upon the same ground, and no other, after the Quebec Act was passed, as before. “Then, as to our statute 40 Geo. III. c. 1, the point is still more clear. Our colonial legislature, when they passed that Act, must be taken to have been using their discretion and choice in introducing the criminal law of England, in the whole or in part, with or without exception, as they judged best. Now, they had, at that time, no discretion to exercise in regard to these Bubble Acts, because they already formed part of our penal law, being expressly made to extend to this and other colonies by a power beyond that of the provincial legislature. If they had desired to except them they could not have done it, and, there- fore, it cannot follow that because they did not except them, they adopted them ; they were not legislating with any view to laws already in force under a power superior to their own. If they had excluded them, the exclusion would have bean illegal ; if they had introduced them, their declaration to that effect would have been idle and nugatory. I understand the provincial legislature to have left them as they found them, standing upon their own original foundation, which they had no power to strengthen or weaken; and when the parliament of the Mother Country repealed the original and principal Bubble Act, declaring that it was expedient to leave such practices and schemes to be dealt with according to the common law, they did, in my opinion, undo all that they had done by that statute, and they neither meant 72 THE CANADIAN CONSTITUTION. to leave it in force, nor did leave it in force, in any one part of the British dominions more than in any other.” The principle we are now discussing, namely, the opera- tive force in a colony of an Imperial Act repealing a previous Imperial Act of express application to such colony was recognized in a comparatively recent case which came before the Judicial Committee of the Privy Council, Reg. v. Mount & Morris (/). These men were tried before the Supreme Criminal Court of the colony of Victoria, upon the charge of murder, alleged to have been committed on board a British ship on the high seas, and were convicted of manslaughter. The jurisdiction to try persons charged with offences committed on the sea, within the jurisdiction of the admiralty, was for the first time conferred upon colonial courts, in 1849, by the Imperial Act 12 & 13 Vic. c. 96, the second section of which provided that convicted persons should be subject to the same punishment “as by any law now in force ” persons convicted of the same offence would be liable to, had the offence been committed and the trial had in England. At the time this Act was passed, the punishment for manslaughter in England was transportation for life. Afterwards, by an Imperial Act, punishment by transpor- tation was abolished, penal servitude being substituted therefor. There was nothing in this Act expressly extend- ing it to the colonies ; but, notwithstanding this, the Com- mittee held that the previous Act, 12 & 13 Vic. c. 96, which had conferred on colonial criminal courts the juris- diction to try such offences as we have mentioned, must bt>
held to be amended (in respect to the sentence to be
imposed) by the Act which abolished transportation.
Their view is thus expressed :

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

,(/) L. R. G P. C. 233.

WHAT IMPERIAL ACTS AFFECT US ? 73

was intended to embrace sentences for offences tried in the
colonies under the special jurisdiction conferred by 12 & 13 Vic.,
since there is no trace of any intention on the part of the legis-
lature to change the policy of that Act, which orders these sen-
tences to be passed according to the law of England.

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

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

It is beyond the scope of this work to enumerate even
briefly the various Imperial Acts (g) which to-day lay
down, on various matters, the law for our guidance and
submission. The most that can be done is to indicate, with
no pretence of exhaustive treatment, some of the subjects

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

Routledge v. Low, L. R. 3 E. and I. App. 100 Copyright Act (5 & 6
Vic. c. 45).

In re Lyons, 6 U. C. Q. B. (O. S.) 627 An Act respecting Declarations
in lieu of Oaths.

Hodgins v. McNeil, 9 Grant, 305 Lord Lyndhurst’s Marriage Act
(5 & 6 Wm. IV. c. 54). “The colonies are not mentioned in the Act, nor
included by any necessary or even strong intendment.”

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

Re Squier, 46 U. C. Q. B. 474 Removal of Colonial Officers, (22 Geo.
III. c. 75).

Georgian Bay Trans. Co. v. Fisher, 5 O. A. R. 383 Merchant
Shipping Acts.

Mowat v. McPhee, 5 S. C. R. 66.

Allen v. Hanson, 18 S. C. R. 667, at p. 681 English Joint Stock
Companies Acts.

74 THE CANADIAN CONSTITUTION.

on which the Imperial parliament does legislate for us. We

have adverted, to some extent, to the general nature of such

subjects in a previous chapter, and have indicated that they

I are subjects which are’deemed to be of common concern to

‘ the whole Empire, but it will be advisable to defer any fur-

yther remarks upon this branch until we come to treat of

(those sections of the B. N. A. Act which divide the field of

colonial self-government allotted to Canada between the

parliament of Canada on the one hand, and the Legislative

Assemblies of the various provinces, on the other (h). &

(h) The “Chronological Index,” published with the English Law
Reports, affords a convenient method of tracing the fate of Imperial Acts.
See sub. tit. ” Colonies ” and the various cross-references.

,

CHAPTER V

THE SOURCES OF OUR LAW.

In the last chapter, we pointed out the necessity for a,
careful distinction between Imperial Acts which are in
force in any particular colony because “made applicable
to such colony by the express words or necessary intend-
ment ” thereof (a) and Acts which (as’coming within the
term English law, or the law of England) have been, by
Imperial grant or colonial adoption, made the law of the
colony. A constant guard must be maintained with refer-
ence to .this distinction. In the last chapter, the extent to
which we are subject to the law enacted in and by the
former class of Imperial Acts was discussed. This chapter
will deal with those Imperial Acts, and^those only, which
have no expressed reference to the colonies in general, or
to any colony in particular, and the enquiry is to be To

what extent are such Acts to be held in force in Canada ?

In entering upon this enquiry, it becomes at once\
apparent that there is a marked variety in the position of 1
the various provinces of which the Dominion of Canada is :
composed ; and that the extent to which English statutory
law, of a general character, is in force in the different
provinces, is by no means the same. The reasons for this
variety are to be sought in the differences which mark their

(a) 23 & 20 Vic. c. G3, s. 1 (Imp.).

\

76 THE CANADIAN CONSTITUTION.

early history as separate colonies of Great Britain differ-
ences as to the mode by which they attained that distinc-
tion differences in the methods employed by Imperial
authority, in determining what system of jurisprudence
should be given to such of them as had that question
settled for them by Imperial authority differences in the
extent to which English law was adopted by such of them
-as determined the question for themselves differences as
to the point of time in reference to which the introduction
took place.

” A question of this kind,” said Chief Justice Robinson,
in 1845, ” 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 prerogative” (6).

It may be said that in Canada there are, among the
provinces, representatives of each of the classes of colonies
referred to by the eminent Chief Justice whose words we
have quoted ; a-nd an apology, therefore, is hardly in order
for making our inquiry, so to speak, by provinces.

The reader should, perhaps, be warned that many of
the English statutes, upon which discussions have taken
place and decisions been given to the effect that they must
l)e held to be in force here, are not, at this date, in
force in Canada, and for the reason that the subject with
which they deal has, since they were under judicial
.scrutiny, received attention at the hands of our parlia-

Iments. It cannot bs too carefully kept in niiiid that it is
only in the absence of Canadian or provincial legislation

(6) See post, Chap. VI.

THE SOURCES OF OUR LAW. 77

(as the case may be) on the subject, that any question can;
arise as to the effect here of an Imperial enactment, passed
before the date in reference to which, English law is to be
taken as a fixed ” body ” of law, and as such introduced
into the different provinces. The cases are collected and
reviewed in order to enable the readeivtoXfull^) ^rasp, if
possible, the principles on which the decision must rest,.
which admits or denies any Imperial statute as operative
here, rather than as showing what particular Imperial
enactments are to-day in force in the different provinces of
Canada,

Seniores priores. NOVA SCOTIA, as the oldest of the
provinces, is entitled to the first consideration. We have
already referred to the claim made by the General Assembly
of that province in 1759, that Nova Scotia “did always of
right belong to the Crown of England, both by priority of
discovery and ancient possession ” (c). By the Nova Scotia
courts, this claim would appear to have been recognized ; to
this extent, at all events, that Nova Scotia has always beenj
treated as a colony by ‘settlement as distinguished from a\
colony obtained by conquest or cession. Owing to the
absence of reports of the early decisions in that province,
we are unable, by direct reference to decided cases, to show
the way in which this question how far English law was
deemed to be introduced was treated in the earlier years
of its history. There is, however, one decision in that- 1
province which may be considered classic upon this ques-
tion, and subsequent decisions have practically been but the \
application of the principles enunciated in that case. The
decision to which we refer is that of the Supreme Court of
Nova Scotia, in the case of Uniacke v. Dickson (d). Chief
Justice Halliburton, who then presided over the court, had,
at the time this decision was given (19th February, 1848),
occupied a seat on the bench for over forty years. Both
on account of the exhaustive treatment of the whole ques-

(c) ante, p. 26. (d) James, 287.

78 THE CANADIAN CONSTITUTION.

tion contained in the opinions of the Chief Justice and Mr.
Justice Hill, and because the case is a fitting introduction
to our whole subject, we venture to quote somewhat fully
from those opinions.

The action was an action on a mortgage, in which the
Attorney-General for the province intervened, claiming a
charge in priority to that of the plaintiff, by reason of
certain debts which were due to the Crown by the mort-
gagor. The claim was based upon Imperial statutes, 33
Hen. VIII. c. 39, and 13 Eliz. c. 4, the general tenor of
which, is sufficiently indicated in the judgments :

HALLIBURTON, C.J.

” To what extent the laws of the

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

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

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

” Among the colonists themselves there has generally existed
& strong disposition to draw a distinction between the common

THE SOURCES OF OUR LAW. 79

and the statute law. As a code, they have been disposed- to
adopt the whole 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 neces-
sary for, them.

” As it respects the common law, any exclusion formed the )
exception ; whereas, in the statute law, the reception formed the-*
exception.

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

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

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

80 THE CANADIAN CONSTITUTION.

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

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

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

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

THE SOURCES OF OUR LAW. 81

provisions, if it be judicious to adopt them, is not now rather
“the province of the legislature than the courts.

” In the early settlement of a colony, when the local legisla-
ture has just been called into existence, and has its attention
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 than they would be
entitled to do as their local legislature, in the gradual develop-
ment of its powers, assumed its proper position. Erenj year
should render the courts more cautious in the adoption of laws that
had never been previously introduced 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.

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

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

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

CAN. CON. 6

82 THE CAXADIAX CONSTITUTION.

” The 13th of Elizabeth would partially have that effect
also, but not so mischievously, because the officers liable to its
provisions would be generally known. But bonds to the Crown,
in security for the payment of duties, are given all over the pro-
vince by persons engaged in the trade and others, and no one
could be sure that he was safe in purchasing real estate if that
statute should be now adopted.

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

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

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

THE SOURCES OF OUR LAW. 83

to interpose in this case are not in force here, and consequently /
that right cannot be sustained by them. ……” /

HILL, J.

” Then, upon the best consideration I have

been able to give to the- question, I am of opinion that neither
the statute 33 Hen. VIII. c. 39, nor that of 13 Elizabeth, c. 4,
extend to, or are operative in, this province. There is confess-,
edly no precise rule, nor can we expect to find any direct decision,
as to what Imperial statutes extend to the colonies discovered,
settled, and peopled by British subjects. The question seems to\
be, find indeed must of necessity be, left open to be decided in each},
particular colony and case by the courts established in those colonies. }
A law that would be very fit, advantageous, and applicable to
one colony, might be very inapplicable to, and unfit for another
one very requisite in one colony, might not be at all required
in another ; nay, might be very unfit for it, and injudicious to be
adopted.

” The general rule on this subject appears to be, that wherever A
English subjects discover and possess themselves of an unin-lj
habited country, they carry with them such of the English laws .< then in force as are applicable and necessary to their situation and I the condition of the infant colony ; as, for instance, laws for the protection of their persons and property. Wherever an English- man goes, he carries with him as much of the English law and liberty as the nature of his situation will allow.- Loj-d Mansfield, in the case of Lindo v. Lord Rodney, reported in note (/) to the case of Le Caux v. Eden, Doug. 594, says : k The colonies take all the common and statute law of England applicable to their situation and condition.’ Blackstone, in his Commentaries, Vol. I. 108 thus lays it down: ‘Besides these adjacent islands (the islands of Jersey, Guernsey, and others) our more distant plantations in America and elsewhere are also, in some respects, subject to the English law. Plantations or colonies in distant countries are either such where the lands are claimed by right of occupancy only, finding them desert and uncultivated, and peopling them for the mother country ; or, when already cultivated, they have either been gained by oonquest, or ceded to us by treaties ; and both these rights are founded upon the law of nature, or at least, upon that of nations. But there is a difference between these two species 84 THE CANADIAN CONSTITUTION. of colonies with respect to the laws by which they are bound ; for it hath been held that if an uninhabited country be discov- ered and planted by English subjects, all the English laws then in being, which are the birth-right of every subject, are immedi- ately there in force. But this ‘ (that is the doctrine laid down in Salk. 411 and 666, whom Blackstone quotes) ‘must be under- stood with very many and very great restrictions. Such colonists carry with them only so much of the English law as is applicable to their own situation and the condition of an infant colony; such, for instance, as the general rules of inheritance and of protection from personal injuries. The arti- ficial refinements and distinctions incident to the property of a great commercial people, the laws of police and revenue (such especially as are inforced by penalties) the mode of maintenance for the established clergy, the jurisdiction of spiritual courts, and a multitude of other provisions, are neither necessary nor con- venient for them, and, therefore, are not in force. What shall be admitted and what rejected, at what times, and under what re- strictions, must, in case of dispute, be decided, in the first- instance, by their own provincial judicature, subject to the! revision and control of the King in Council.’ ” Blackstone, therefore, dissents from the unrestricted posi- tion in Blankard v. Galdy, Salk. 411. ” Chitty, on Prerogatives of the Crown, p. 30, appears to adopt the doctrine as modified and restricted by Blackstone. He say? ‘ If an uninhabited country be discovered and peopled by Eng- lish subjects, they are supposed to possess themselves of it for their sovereign, and such of the English laws then in force as are applicable and necessary to their situation and the condi- tion of an infant colony as, for instance, laws for the protection of their persons and property are immediately in force. Wher- ever an Englishman goes, he carries with him as much of Eng- lish law and liberty as the nature of his situation will allow.’ ” Chitty refers to an anonymous case, in 2 P. Will. 75, and to the Queen v. Mayor and Aldermen of Norwich, 2 Ld. Raymond, 1245, in which last case Lord Holt refers to Blankard v. Galdy. ” Clarke’s Colonial Law, p. 7, is merely a repetition of what Blackstone has already said on this subject, and from whom I have quoted. THE SOURCES OF OUR LAW. 85 ” The whole tenor and spirit of what all the writers on this subject have said, and of all the cases relating to it, in my mind, leave the question under consideration widely open, and thatv whether a particular statute does or does not extend to a colony is to] be decided in each particular case by the colonial judicature, subject to an appeal home. 5 ^ “When this colony was first settled and possessed by English subjects, were these two statutes applicable and necessary to the condition and state of the first occupiers and possessors ? Did the state of the colony require them to be in force ? I do not conceive the question to be whether the whole or some small part of these Acts might not, as it were, be pressed into the service, but whether they are necessary to our wants and require- ments ? Looking then at the matter in this point of view, I cannot say that these statutes were, or are, necessary to the state and condition of Nova Scotia to its wants and requirements. In that great country where these statutes were passed, the rights of the Crown were considered sufficiently protected under the com- mon law until the time of their enactment ; and in an infant colony like this, at its first settlement, and even now, the rights of the Crown will find ample and o-dequate protection under that same law, without requiring the aid of these stringent statutes. There is no danger, I think, of its being prejudiced in the collec- tions of its revenue, or otherwise. ” Up to this period I have never heard of any complaint or difficulties upon the subject. In England, where the Crown revenues were so great, and derivable from so many resources, and where its dues necessarily pass through so many hands, it might be very proper to clothe the Crown with greater authority and security to collect its revenues. But how could that be necessary here, on the first settlement of the country, when the Crown may be literally said to have had no revenue from any source, nor any debts due to it ? But how has the colonial legislature silently spoken upon this subject ? If it had been thought that these statutes were wholesome, necessary, and applicable to us, I cannot but think that our legislature would have so said by re-enacting them. The legislature, in its very first session in 1758, did re-enact many provisions of English statutes which were thought applicable to our situation, and 86 THE CANADIAN CONSTITUTION. from time to time such re-enactments have found their way into our statute books, but we find nothing of these statutes being re-enacted. Does not then this fact show in strong colors what the opinion of our legislature was and has been on the matter ? for, as I have remarked, if occasion had called for it, there undoubtedly would have been a re-enactment. As far, there- fore, as the opinion of the legislature may be gathered, these statutes do not extend to us ; and I must add, that, on a refer- ence to our statute book, it will be found that very particular attention has been paid to the securing the debts of the Crown under our .various revenue Acts, and particularly under those of a later date. The mode of securing and the manner, of collect- ing are precisely pointed out, so that it is manifest the subject of the Crown debts has been under the consideration of our own legislature. I allude to this, not as showing that our legislature would abrogate the statutes of Henry and Elizabeth, but as an argument that they did not extend to us. ” Thus far, then, as to the legislature. What, then, has been the opinion and practice among the profession ? Cases must have arisen in which these statutes, if extending here, might, and probably would, be called into operation; and yet this is the first occasion on which the attention of any court in the province has been called to them. The contrary has not been asserted; and, no doubt, the fact is, that the writ of extent never issued in this country. The ordinary process of our courts has invariably been the mode of collecting the Crown debts. Why, then, has this been so ? I apprehend merely because no incon- venience has ever been found to flow from following the ordinary and prevailing practice no detriment to the rights or interests of the Crown. This non-user, if I may so speak, of either of these statutes, this want of any reference to them, convinces me that the profession, at all events, never considered them as having any efficacy with us. “Now, the interest in this case is entirely local, it alone con- cerns the province and the support of its government; no portion of this money goes into the private coffers of the sovereign, or into the Imperial treasury; and when circum- stances shall demand it, doubtless we shall pass our statutes of Henry and Elizabeth, as was done in England. THE SOURCES OF OUR LAW. 87 But let us suppose that our legislature in 1758 had re-enacted these two statutes, or that portion of them which relates to the matter in hand ; could it be said that they were necessary, or rather, could it be denied that their enactment would have been absurd, inasmuch as there was nothing for them to operate on. ” The question, therefore, after all, is a narrow one, and may be said to be more addressed to our judgment, as prudent and riyht-judyiny men, than as lawyers and judges. My opinion,, therefore, is based upon this consideration, that neither of these statutes was applicable and necessary to our state and condition when the province was first settled, nor at any time since, and that the rights of the Crown are amply protected and secured by the common law.” ^ Acts in curtailment of prerogative seem to have been favorably looked on by Nova Scotia judges. Magna Charta. and the second and third charters of Henry III. were held (/) to be operative within the province, to prevent the Crown from granting a general right of fishery; for, as was said, a grant to support that must be as old as the reign of Henry II., and, therefore, beyond legal memory ; for, by Magna Charta and the charters of Henry III., the king is expressly precluded from making fresh grants. Again, it was held (cj) 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 inquest taken ; the provisions of the statutes 8 Henry VIII. c. 16, and 18 Henry VIII. c. 6, being held operative within the province, to prevent such new grant from taking effect. The view acted upon by the court is thus expressed : ” The very grievances intended to be remedied and redressed by this statute, are those under which the subjects of this province might well say they labored, if it were held that land, (/) Meisner v. Fanning, 2 Thomp. 97. (g) Wheelock v. McKeown, 1 Thomp. 41 (2nd ed.) ; and see also Miller v. Lanty, ib., 161. 88 THE CANADIAN CONSTITUTION. granted with a condition that the grant should be void if the land were not settled on within a certain time, could be subse- quently granted without inquest of office.” The same view was thus expressed in a later case (//) involving consideration of the same statute : ” The court has uniformly decided that when there is plena possessio held against the Crown particularly under color of title the Crown must re-invest itself with the possession before it can grant ; and, if it grant while it is out of possession, that grant is void under 8 Henry VIII. c. 16, and 18 Henry VIII. c. 6.” In a still later case (i), involving consideration of 21 Jac. I. c. 14 an Act in pari materia with the statutes of Henry, above referred to Young, C. J., speaking of Uniacke v. Dickson and the statute there in question, says : “The statute of James is of a different character. The object of the former was to extend, that of the latter is to limit and restrain, the prerogative of the Crown, and that for a highly beneficial purpose, and for the protection and benefit of the subject. What class of persons is better entitled to the favor of the legislature and the courts than the men who transform a rude country into smiling habitations, and fit it for the use and enjoyment of man? I look upon this statute of James as peculiarly suited to our condition and circumstances, and to have the same title to be considered part of our law, and on the same principle on which we have always recognized the Statute of Uses and the statute dc Donis until the present enactment abolishing estates-tail.” The view expressed by Halliburton, C.J., in Unicicke \ . Dickson, that after a legislature has been duly constitute 1 in a colony, and has, so to speak, settled down to its work, courts of law should be very cautious in giving effect to Imperial Acts which had never been previously acted upon (/i) Scott v. Henderson, 2 Thomp. 115. (0 Smyth v. McDonald, 1 Ok 1 . 274. THE SOURCES OF OUR LAW. 89 m the colony (j), has evidently had a most powerful effect in subsequent cases. For instance, 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 “have wisely legislated for the whole matter. . . . . . The imperative words of the English statute throw the responsibility upon the sheriff In England, but these words are not to be found in our statute, and therefore neither law nor justice throw it upon him here” (k). And, in like manner, the Imperial statutes 28 Edw. III. . 13, -and 8 Hen. VI. c. 29, giving aliens a right to a jury de mediatate linguae, and the other statutes with that object, were held (I) 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. This long course of legislation, coupled with the fact that it has never before been claimed in our courts, though the idea, and the usage in the mother country, were familiar to every lawyer, is strong evidence of the opinions held by our judges and legislators.” In a late case (m), the Supreme Court of Nova Scotia had to consider the question whether or not the imperial statute 13 Geo. II. c. 18, requiring notice 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 convic- tion, was in force in the province. Reference was made by (j) See the passage, ante p. 81. (k) Jackson v. Campbell, 1 Thomp. 18 (2nd ed ). (/) Reg. v. Burdell, 1 Old. 126. (m) 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. See Reg. v. McFadden, 6 R. & G. 426, and McDonald v. Ronan, 7 R. & G. 25. As to New Brunswick, see post, p. 94. 90 THE CANADIAN CONSTITUTION. Ritchie, J., in delivering the judgment of the court, to Uniacke v. Dickson. After quoting the caution of Halli- burton, C.J., above referred to, the opinion proceeds: ” 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 legis- late 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 Imperial Acts, passed prior to the settle- ment of Nova Scotia, have been acted upon without ques- tion, as having been introduced into the colony upon its settlement. The Statute of Uses was, without question, treated as being in force within the province (n), while its companion the Statute of Enrolment would appear to have been thought inapplicable, by reason of the lack of facilities for enrolment (o). The Imperial Acts, 31 Hen. VIII. c. 1, and 32 Hen. VIII. c. 32, allowing partition between joint tenants and tenants in common, were held to have been introduced into Nova Scotia as part of the English law; and the Nova Scotia legislature, in passing R. S. N. S. c. 139, s. 1, was held to have intended to make the remedy thereby provided, concurrent with the remedy under those statutes of Henry VIII. Q>). In the
case of ” The Dart ” (q), the provisions of Magna Charta,
and of the Statute of Staples, 27 Edward III. c. 17,
which provided that, ” In case of war, merchant strangers

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

(o) Berry v. Berry, 4 R. & G. 66 ; see the contrary holding in New
Brunswick, Doe d. Hanington v. McFadden, Berton, 153, post, p. tl’2.
(p) Doane v. McKenny, James, 328. (q) Stewart.

THE SOURCES OF OUR LAW. 91

shall have free liberty to depart the 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 13 Eliz. c. 5, respecting fraudulent conveyances,,
seems to have been acted upon without question (r), as also
the Act 32 Henry VIII. c. 9, against the buying of pre-
tended titles (s).

\
Upon a review of these Nova Scotia decisions, it would

certainly appear that the admission of Imperial statutes, as
operative within the province, 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 s
law, Acts 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 T Brunswick or Ontario, the
judges 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 Imperial statutes n
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 (t), 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 may be ^
confined, I take it, within narrower bounds by the circum-
stances and situation of the colony to which it has been
brought ; but it can never, as it appears to me, become a

(/) Tarratt v. Sawyer, 1 Thomp. 46 (2nd ed.) ; Moore v. Moore, 1 E.
& G. 525 ; and Graham v. Bell, 5 K. & G. 90.

(s) Wheelock v. Morrison, 1 N. S. D. 337; Scott v. Henderson, 2
Thomp. 115. Other Imperial Acts which have been treated as in force
in Nova Scotia, are: 13 Edw. I. c. 18 (elegit), Caldwell v. Kinsman,
James, 398; 2 Hen. IV. c. .7 (judgment of nonsuit), Grant v. Protection
Ins. Co., 1 Thomp. 12 (2nd ed.) ; 7 Hen. VIII. c. 4 (damages in replevin);.
Freeman v. Harrington, 1 Old. 358; and see Congdon’s N. S. Dig., col.
1336, et seq.

(t) Freeman v. Morton, 2 Thomp. 352, per Bliss, J.

“92 THE CANADIAN CONSTITUTION’.

statute of greater effect or more enlarged construction
than was given to it in the intention of those by whom it
was passed. This is the office of legislation alone.”

NEW BRUNSWICK. In this province, we have the same
difficulty to contend with as was noted in the case of Nova
Scotia, namely, that there are no reports of the earlier
decisions in the province during the time when this question
would be most frequently under consideration. The earliest
reported case (u) in which we are furnished with the opin-
ions of the judges, is Doe dem Hanington v. McFadden (v),
in which the Supreme Court of that province had to con-
sider whether or not the Statute of Uses and its companion
the Statute of Enrolment were in force in the province ,
.and that case has had a very large controlling influence in
New Brunswick. Chipman, C.J., quotes with approval the
language of Sir W. Grant in Attorney-General v. Stewart
(w), and takes as his guide, the principle -enunciated in that
case “Whether it be a law of local policy, adapted solely
to the country in which it was made, or a general regu-
lation of property, equally applicable to any country, in
which it is by the rules of English law that property
is governed.” As to the Statute of Uses, no doubt what-
ever was expressed ; the fact that that statute had been
generally, if not universally, considered to be in force in
the old American colonies, was treated as indicative of the
general understanding 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
hesitation, seems to have been expressed; but all the
judges concurred in treating the two statutes as practically
one: and, although the Statute of Enrolment might be
somewhat difficult of application in New Brunswick,
it seems to have been considered that the machinery
of the provincial courts could be utilized in this respect.

(//} See note, ante, p. 79, as to Rex. v. McLaughlin.

(r) Berton, 153. (?<) 2 Mer. at p. 160.

^V* *
‘/

THE SOURCES OF OUR LAW. 93

It was pointed out that 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, and several of such statutes, regulative of the
practice in ” Her Majesty’s Courts at Westminster,” which
had always been treated as operative within the province
in relation to the superior courts there, were cited (x).

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

In an early case (y), it was held that the Imperial
Act, 32 Henry VIII. c. 39, which authorized the Ex-
chequer Court in England to give relief to Crown debtors,
was operative to enable the Supreme Court of New Bruns-
wick to relieve from an estreated reco^niizance.

O

Following Attorney-General v. Stewart, it was held (z)-
that the Statute of Mortmain, 9 Geo. II. c. 36, is not in
force in New Brunswick.

In Kavanagh v. Phelon (a), involving a consideration of
the fees proper to be paid to a sheriff, it was held that 29
Eliz. c. 4, was not operative in New Brunswick to regu-
late the sheriff’s fees, in cases not provided for by the pi o-
vincial ordinance upon the subject. Referring to Doe dem
Hanington v. McFadden (h), Chipman, C.J., says :

” For the same reason it seems to me that the statute o
Eliz. is entirely inapplicable to this or any other colony, and,
-therefore, is not in force here. It is difficult to conceive of any

(x) 4 Anne, c. 16 (assignment of bail-bonds) ; 14 Geo. II. c. 17 (judg-
ment of nonsuit) ; and see Kelly v. Jones, 2 Allen, 473 (43 Eliz. c. 6 cer-
tificate as to costs), and Gilbert v. Sayre, ib. 512 (13 Car. II. c. 2 double
costs on affirmance in error). See Hesketh v. Ward, 17 U. C. C. P. 667,
referred to post .

(y) Reg. v. Appleby, Berton, 397.

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

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

’94 THE CANADIAN CONSTITUTION.

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

and he refers to the declaration in the provincial ordin-
ance that ” there is 110 law or ordinance now in force regu-
lating sheriffs’ fees,” etc., and the regulation of the matter
by that ordinance, as indicative of the view of the legisla-
ture (c).

Although, as we have said, it is very difficult to classify
the New Brunswick authorities upon this question, this
much does appear: that in every case the judges of the
courts there have endeavored to exercise their best judg-
ment as to the applicability of the Imperial statute to the
circumstances of the colony. If any distinction in principle
can be drawn between the decisions in New Brunswick and
those in Nova Scotia, it would appear to be along the line
indicated in the judgment of Halliburton, C.J., in Uniacke
v. Dickson that is to say, Imperial statutes have been
denied operative force in Nova Scotia unless clearly appli-
cable, while, in New Brunswick, the tendency, at least of
the earlier authorities, seems to have been not to reject
them unless clearly inapplicable. At the same time, it must
be confessed that this distinction cannot be clearly pointed
out in every case.

ONTARIO 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 legislative enactment.

In the year 1791, the parliament of Great Britain
passed’ an Act, 31 Geo. III. c. 31, commonly known in

(c) For other New Brunswick cases, see Ex parte Ritchie, 2 Kerr, 75,
;and Ex parte Bustin, 2 Allen, 211, in which the English statutes as to
certiorari proceedings were held not in force ; Wilson v. Jones, 1 Allen ^
-658, in which 1 .Rich. II. c. 12, giving a creditor an action of debt against
a 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. Murray, 2 Kerr, 359.

THE SOURCES OF OUR LAW. 95

Canada as the Constitutional Act, 1791, by which provision
was made for the division of the province of Quebec into
two provinces, Upper and Lower Canada, and for the estab-
lishment therein of separate governments. During the
progress of the war of American independence, there had
taken place, from the disaffected colonies into what after-
wards became Upper Canada, a large influx of loyal subjects,
” born and educated in countries where the English laws
were established, and . . . unaccustomed to the laws
of Canada.” And as, in 1774, the parliament of Great
Britain, by giving to the inhabitants of Canada, then
almost exclusively French, the law in accordance with
which they had been accustomed to regulate their daily
lives, secured their cordial adherence to British connection,
despite the enticing words of Washington and his French
allies (d),so, in 1791, they established the new immigration
in content in the upper province, by giving them a distinct
legislature, with the power to adopt such system of laws
as they might deem best calculated to secure and advance
their own material and religious welfare. Avoiding all
appearance of dictation to either province, the Constitu-
tional Act, 1791, simply provided that there should be
within each “of the provinces respectively, a Legislative
Council and an Assembly, and that in each of the provinces
His Majesty should have power, by and with the advice
and consent of the Legislative Council and Assembly of
such province, to make laws for the peace, welfare, and
good government thereof, such laws not being repugnant
to the -Act. All laws, ordinances, and statutes in force\
within the provinces, or either of them, at the date of the\
Act, were to remain and continue as if the Act had not
been made, except in so far as not expressly varied by the
Act the Act is limited to the making of constitutional
changes or except in so far as the same might be there- \

(d) See Confed. Deb. p. 606; Ryerson, “The U. E. Loyalists in
America.”

96 THE CANADIAN CONSTITUTION.

<fft(/r repeated <‘ varied by the Legislative Council and, AwiMies of the respect ive provinces. The inhabitants of Lower Canada, being content with the law under which they had lived since 1774, made no change ; but, 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 consequence of erecting Upper Canada into a separate province. Reciting that the provision made by the Quebec Act, 1774 (before alluded to), had been manifestly intended for the accommodation of His. Majesty’s Canadian subjects, and that the territory com- prising Upper Canada had become inhabited principally by British subjects, unaccustomed to the laws of Canada, it repealed the provision in the Quebec Act, 1774, so far as that Act had the effect of introducing the French law into- Upper Canada, and 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'” (e\. The criminal law of England had been in force in the x)ld province, and no legislation was deemed necessary by/ the legislature of Upper Canada, beyond naming a day, in reference to which the English criminal law was to be con- sidered fixed (so far as Upper Canada was concerned),, unless altered by the colonial legislature. 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 t > be, the criminal law of this province,” subject to any
variations therein, effected by ordinances of the old pro-
vince of Quebec passed after the Quebec Act of 1774.
The difference in the phraseology in the two Acts of 32 ;m<l
40 Geo. III. respectively, must be carefully noted, for, as will

( devise made by that will to a charitable use is void in this
country under the provisions of the statute 9 Geo. II. c. 36 ;
that it is of such a nature as to come within the terms of that
statute, cannot be doubted, and the only point, therefore, to be
determined is, whether the statute is in force in Upper Canada.

If this had been a colony of that description, and

not a conquered or ceded country, having already laws of its
own, and if the question whether the statute 9 Geo. II. c. 36,
could be regarded as in force or not, had turned wholly on the
point whether, upon the principles of the common law, without
the interposition of any legislative enactment, that statute
formed part of the law binding upon all who settled in the
colony or plantation, I think we should without difficulty have
held that it did not, for the reasons expressed in this passage of
the commentaries (o),and which received the sanction of a judicial
decision, in the case of The Attorney. General v. Stuart, 2 Mer.
144, from a very eminent judge (Sir W. Grant), and in refer-
ence to the very statute now under consideration. But it is
plain that the question does not rest here on that footing, and
though the case of Attorney General v. Stuart may appear very
material to its decision, it cannot be so upon the footing that this
is a colony planted originally by British subjects, to which all
who have come, have brought the law of England as their birth-
right, but it may be material as illustrating the extent and
effect which should be given to the words of a provincial
statute introducing the law of England, which statute, after
all considerations are stated, must form the foundation of
our decision. The country in which this question rises
formed part of the conquered province of Canada, ceded by
the French government, by the Treaty of Paris, 10th July,
1763, and in which, therefore, after the cession, it was in the
power of the Crown, independently of the legislature (/?), to
have introduced either the laws of England, or any other ;
but the laws before enjoyed by the conquered people would

(o) Of Blackstone, from which full extracts have already been taken ;
see ante, p. 78 et seq.

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

104 THE CANADIAN CONSTITUTION.

prevail until such introduction. These principles are clearly
and precisely stated by the Master of the Rolls (2 P. Wms. 75)
to have been determined by the Lords .of the Privy Council,
on an appeal to the king in council from the foreign planta-
tions. .Lord C. J. Holt assents to them, in emphatic terms,
in Smith v. Cooper, 1 Salk. 666, where he says, ‘ the laws of
England do not extend to Virginia ; being a conquered country,
their law is what the king pleases,’ I do not, however, under-
stand in what sense his Lordship speaks of Virginia as a
conquered country. In 1 Salk. 44, the principles we are consider-
ing are again stated by Lord C. J. Holt, and were elaborately
set forth in modern times by Lord Mansfield, in the well-known
case of Campbell v. Hall, 1 Cooper, 204. The proclamation
of October, 1768, on the effect of which that judgment pro-
ceeded, was an act of the Sovereign, introducing the law of
England, in general terms, into countries ceded by the Treaty of
Paris ; but, by some inadvertence, the territory which was then
formed into the Province of Quebec, was so described in that
proclamation as to exclude the greater part of Canada, in regard
to which no provision was made for its civil government. This
omission is noticed in the preamble to the British statute 14
Geo. III. c. 83. If the territory which lately formed Upper
Canada, and in respect to which the question now before us has
arisen, had been included within the limits given by that pro-
clamation to the Province of Quebec, and if to this moment we
had been left to the effect of that proclamation, which assured
to the inhabitants ‘ the enjoyment of the benefit of the laws of
England,’ and directed that all causes, criminal and civil, should
be determined according to law and equity, and * near </* nnj }>r, -(‘c((ltle to the Inn:? of Enijlaiul, then the question would have
been, whether in reason we should hold that any other laws
were introduced by those general words than such laws as
English colonists, planting a newly discovered country, would,
on the principles of “the common law, have carried with them;
and, in considering that point, the observations of Sir William
Grant, in Attorney-General v. Stuart, would have strongly
applied, and might, indeed, have been taken as direct authority.
Then, how does the question stand on the real facts of
the case ? The British statute 14 Geo. III. c. 88, noticing

THE SOURCES OF OUR LAW. 105

the defect in the proclamation of the 7th of October, 1763,
enlarged the limits there assigned to the Province of Quebec,
and made them clearly embrace the country now involved in
this question (if not the whole of Upper Canada) ; and parlia-
ment, by that Act, for the satisfaction of her Majesty’s
Canadian subjects, provided that within the whole of the terri-
tory thus denned, in all matters of controversy relative to pro-
perty and civil rights (q), resort should be had to the laws of
Canada (that is, the laws which prevailed in Canada before the
-conquest), for the decision of the same. This gave a new start-
ing point with regard to the question, and puts an end to all
doubts which might have arisen under the proclamation, which,
in this respect, was wholly abrogated. The statute 31 Geo. III.
c. 81, which divided the Province of Quebec, and gave to Upper
Canada a distinct legislative body, and did not by anything con-
tained in it affect the terms of this question, left the French-
Canadian law in force, but it created a legislature, with power to
make laws for the peace, welfare, and good government of the
province, and which, under the very general terms of that
authority, might alter or abrogate the existing law, if it thought
proper. In the first statute passed by this legislature, 32 Geo.
III. c. 1, that was done which, no doubt, was anticipated and
intended as the consequence of erecting Upper Canada into a
separate province. Reciting that the provision juade by the
14 Geo. III. c. 83, had been ‘ manifestly .intended for the
accommodation of his Majesty’s -Canadian subjects,’ and that
the territory comprising Upper Canada had become inhabited
principally by British subjects, unaccustomed to the law of
Canada, it repealed the provision in the 14 Geo. III. c. 83, so
.far as it had the effect of introducing the French law into Upper
Canada, and enacted, that ‘from and after the passing of that
Act, in all matters of controversy relative to property and
civil rights, resort should be had to the laws of England, as
the rule for the decision for the same. And that all matters
relating to testimony and legal proof in the investigation of
fact, and the forms thereof, in the several courts of law and
equity within this province, shall be regulated by the rules of
evidence established in England ‘ ; with a proviso that the

(q) See Citizens v. Parsons, L. R. 7 App. Gas. 96.

106 THE CANADIAN CONSTITUTION.

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

(r) See post, p. 123 et seq.

THE SOURCES OF OUR LAW. 107

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

(*) See ante, p. 98.

108 THE CANADIAN CONSTITUTION.

which this court has determined, with respect to certain British
statutes passed before our provincial statute 32 Geo. III. c. 1,
that they formed no part of the law of this province, not having
provisions in their nature applicable, and such as it could be
supposed the legislature intended to introduce under the general
words used by them ; these words, too, it must be remarked,
are not such as expressly introduce the whole civil law of Eng-
land ; they seem rather intended to be more prudently limited
to the purpose of giving the principles of English law, modified,
of course, as they may have been by statutes, as the rule of
decision (t) for settling questions as they might arise relative to
property and civil rights. Still it must be confessed that a
wide field is opened for disputes by the term civil rights. Among
a man’s civil rights it may be argued is the riglit of disposing of
his property as he thinks fit. And when he has made a dis-
position of it, the legality of which is questioned, that seems to
present a point which must be solved, since our statute 32 Geo.
III. c. 1, by conceding what a man in the exercise of his civil
rights might in such a case do in England, and taking that as
the rule for deciding the controversy between the persons claim-
ing under the disposition which may be questioned, and the
person who would be entitled to the property as the representa-
tive of the deceased, if he had not the power to dispose of it as
he has done. To decide these constitutional points, for such
they are, upon principles so manifestly clear and consistent as
to keep free from all appearance of conflicting decisions, is more,
1 apprehend, than it can be hoped to attain. That wisem
xerritm which is said to exist where l ju$ et ragum ‘ is so justly
dreaded in these times, that no one can consent to admit that
there exists in any tribunal an arbitrary discretion to say what
British statutes shall be in force here, and what not ; and yet, on
the other hand, in the present state of our jurisprudence, there
cannot be said to be any other method of settling all these doubts
as they arise, than for courts of justice to deter in hie them, not
by anil i’bitnu-y e.rercixe of their ///, for they can <-lini nn (t) See Moulson v. Commercial Bank, 2 U. C. Q. “B. 338, involving the question how far the English Bankruptcy Act was introduced by the first Canadian Bankruptcy Act, which used much the same form of expression. THE SOURCES OF OUR LAW. 109 .such right, but upon the best views which t/u’y can take of art/u- nients which cannot in their nature lead to any clear and incontestable conclusion (u). To repeat what I have already quoted from Mr. Justice Blackstone, ‘ 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 the provincial judica- ture, subject to the revision and control of the King and council,’ and we may add, subject also to any express provision which the legislature of the mother country, or of the province, may think fit to make. With regard to this particular statute, 9 Geo. II. c. 36, when I consider the English decisions as to what are charitable uses within the intention of the Act, I cannot persuade myself that there have not been many dispositions made in this province of property, both by deed, and by will which would be held to come within the prohibitions of the statute, but which have nevertheless been acquiesced in and executed without question. In the case of Doe clem McDonald and others v. McDougall in this Court, Trin. Term, 3 & 4 Will. IV., the question whether this statute was in. force here was discussed, and as far as I know, for the first time. The point was not determined in that case, for the judgment proceeded on other grounds of objection, which prevailed ; but I recollect that I formed and expressed an opinion upon it, and that, looking to the reason of the thing, and fully concurring in the sentiments which had been delivered by Sir W. Grant, in the case of Attorney-General v. Stuart, I was disposed to look upon the statute as not binding in this province, and that would still be my opinion, if the point were left to depend wholly on the effect of our statute 32 Geo. III. c. 1. I think the reasoning of the Master of the Rolls, as applied to the particular provisions and exceptions in that statute, is obvious and irresistible, and that it should lead us to say, that the legislature, if they had given no other evidence of their intention than is to be found in statute 32 Geo. III. c. 1, did not intend by that Act to introduce the statutes of Mortmain, among which the 9th Geo. II. if? usually, though not very accurately, classed. But my opinion is that we cannot properly hold that opinion now, after the legislative (u) Compare with this the language of Mr. Justice Hill, in Nova Scotia, ante, p. 87. 110 THE CANADIAN CONSTITUTION. exposition which has been afforded, and especially in recent times, of the assumed effect of that statute. The legislature, it is admitted, are the best interpreters of their own laws, and to say nothing of other evidences they have given of their under- standing upon this point, by the Church Temporalities Act passed in 3 & 4 Vic. c. 78, they have provided that lands may be conveyed to such uses, for the benefit of the United Church of England and Ireland in this province, as would clearly have been prohibited by the British statute 9 Geo. II., and they have shown it to be their understanding that without such express legislative authority, the English statutes of Mortmain would have restrained parties from making such a disposition, for they have added the words ‘ the Acts of parliament commonly called the statutes of Mortmain, or other Acts, laws, or usages to the contrary thereof notwithstanding,’ 9 Geo. II. c. 36, being commonly regarded as one of these statutes of Mortmain ; but the legislature not being really anxious to relieve parties in this instance entirely from its restrictions, they accompanied the authority given by the Act with limitations in the same spirit, though not to the same extent, as those contained in the 9 Geo. II. c. 36. They only give validity to deeds conveying lands to the use of the church, provided such deeds shall be made and executed six months at least before the death of the person conveying the same, and shall be registered within six months after his decease. The recognitions by the legislature to which I have alluded, are subsequent to the discussion of the question in Doc dem McDonell et al. v. McDougall et cd., whether the statute 9 Geo. II. c. 36, was or was not binding in Upper Canada. We can hardly suppose a point more especially within the province of the legislature to decide, than whether a particular part of the statute law of England is or is not so far in its nature applicable to the state of things in this province j that it may in reason be considered to be included within the operation of the statute which they had themselves passed, introducing the law of England relative to property and civil rights. ” If, after the Church Temporalities Act, which I have particularly referred to, and which certainly is based on the assumption of the statutes of Mortmain being in force here, we THE SOURCES OF OUR LAW. Ill were to hold that the statute in question, 9 Geo. II. c. 36, is not in force, then this incongruity would follow, that while people would be restricted from conveying lands to religious and charitable uses connected with the Church of England, in any other manner than by a deed made six months before the death of the grantor, and registered within six months after, they might convey their lands to religious and charitable purposes connected with any other denomination of Christians, without any restrictions whatever, and might devise all their estates to such uses, even upon their death-beds. What is said by the Master of the Bolls, in Curtis v. Button (v), very strongly accords with this view of the case. If the legislature had left the subject of Mortmain untouched, making no reference to it in any of their Acts, then I think for the reason given by Sir W. Grant, in Attorney-General v. Stuart, we should have held that the statutes of Mortmain were not introduced by the pro- vincial statute 82 Geo. III. c. 1 ; but to treat them as inappli- cable to this province, and on that ground to keep them wholly out of view, after what the legislature has done in contemplation of their being in force, would lead to greater inconveniences and inconsistencies than those which Sir William Grant has pointed out as arguments against their being held generally inapplicable to the colonies. W T e ought, in my opinion, now to take into our view all that the legislature has done bearing on this question ; .and doing so, we must hold that the statute 9 Geo. II. c. 36, is part of our laws, and that under it the disposition made by the testator by the will in this case is void, and that the estate has consequently devolved on the heir-at-law, the lessor of the plaintiff.” It should be remarked, however, that Jones and McLean, JJ., appear to have entertained the view that the statute in question was introduced by 32 Geo. III. c. 1, as being a part j of English law capable of application to Upper Canada, | but both treat the question of applicability as one proper for consideration. McLean, J., puts it thus : ” It is evident from the words of the statute, that they ‘shall form the rule’ for such decisions, that the legislature must have (v) U Ves. 541. 112 THE CANADIAN CONSTITUTION. been well aware that in very many other matters, as well as in reference to the Poor and Bankrupt laws, the laws of England were wholly inapplicable to the circumstances of this province, and could not therefore be introduced as a body of laws to be enforced in all cases. They are therefore only to form the rule in all matters in which they can properly and reasonably be brought into operation here. The statutes of Mortmain form a, part of the law of England introduced as the rule of decision in all cases coming under their operation, and there is nothing to prevent their application to the circumstances of the country.” on the effect of subsequent legislative recognition they agreed with the Chief Justice, and the unanimous judgment of the court was that the statute had the force of . law in Upper Canada. The general tenor of the decisions in the other cases involving a consideration of this statute down to 1876, will sufficiently appear by the following extract from the argument of counsel in the case in appeal about to be noted : ” Hallock v. Wilson (w) follows Doe Anderson v. Todd, and proceeds 011 the ground that registration is substituted for enrolment, and that the statute 9 Geo. II. I c. 36, is in force, because certain provincial statutes have recognized it as being in force. Mercer v. Hewstoii (x) expresses a doubt whether the statute is in force. That decision follows Doc Anderson v. Todd, as being the law until otherwise determined by the Court of Appeal. Ander- son v. Dougall (y) and Anderson v. Kilbourn (0) do not discuss the question whether the statute is in force or riot; arid Davidson v. Boomer (a) concedes that the statute is in force in this province, following Doe Anderson v. Todd ; but in Hainbly v. Fuller (b) the judgment only states that it must be held that the statute is in force, upon the above authorities, until otherwise decided by the Court of Appeal. (iv) 7 U. C. C. P. 29. (z) Ib. 219. (x) 9 U. C. C. P. 349. (a) 15 Grant, 1, 218. (y) 13 Grant, 164. (b) 22 U. C. C. P. 142. THE SOURCES OF OUR LAW. 113 Ferguson v. Gibson (c) follows the above authorities without discussing whether the Act is in force or not.” The whole matter came finally before the Court of Appeal for Ontario in the case of WLitbyj^Liscombe (d). The opinions delivered by the eminent judges who decided the case show the same marked difference of opinion as was apparent in the early case a decided difference in principle although the judgment of the court was unanimous that the statute’ is in force in Ontario, because all agreed in hold- ing that the legislative recognition of its binding force here (particularly since 1845) was sufficient to incorporate it amongst the laws of Ontario (e). Chief Justice Draper / expresses a clear opinion that the provincial statute 32 ‘ Geo. III. c. 1, was sufficient, per se, to introduce the Mortmain Acts, and from his language it might even be argued that he considered the question of applicability not opQii : ” The question before us is whether our legislature have not made it part of our laws ; and but for the case of Attorney-General v. Stewart, I should never have enter- tained a doubt on this point.” And again, referring to the English laws as to the poor and to bankruptcy, and another statute subsequently excluded, he says : ” The reason given, that the provisions of those Acts were inapplicable to this province, is virtually one of the reasons for Sir W. Grant’s judgment in the Attorney-General v. Stewart ; but our legislature evidently did not doubt that their first Act had introduced both these British statutes into Upper Canada.” On the other hand, Mr. Justice afterwards Chief Justice Moss, agreed fully with the view expressed by Robinson, C.J., in the early case, that by the effect of our provincial Act 32 Geo. III. c. 1, per se, the Act in question was not in force. Reviewing that case, he said : (c) 22 Grant, 36. (d) 23 Grant 1. (e) Only on this ground is Reg. v. Gamble and Boulton, 9 U. C. Q. B. 546, supportable. See notes to B. N. A. Act, ss. 18 and 69 post. CAN. CON. 8 114 THE CANADIAN CONSTITUTION. ” The question of principal interest in this case is whether the statute commonly called the Mortmain Act is in force in this province. More than thirty years ago the Court of Queen’s Bench, upon full consideration, held that it was in force. Since that time, in express deference to that authority, the Courts of Common Law and the Court of Chancery have decided many cases, and many devises and bequests to charitable uses, otherwise unimpeachable, have been adjudged invalid. The point is now for the first time raised in a Court of Appeal. So many estates have been administered and so many titles have been acquired upon I the assumption of the correctness of a decision which had been followed so often by courts of co-ordinate jurisdiction, and remained so long unchallenged on appeal, that its reversal would be attended with serious con.sequences. Under such circum- stances, it would deserve consideration whether the case was not a fitting one for the application of the rule stare (hrisi*. If the only question was whether Doe Anderson v. Todd was well decided, I should hesitate long before holding in the affir- mative. The points then presented for determination were, whether the provincial statute 82 Geo. III. c. 1, should have been judicially interpreted to have the effect of introducing the Mortmain Act, and, if not, whether subsequent legislation had effected a change in the law. Robinson, C.J., was of opinion that but for subsequent legislative exposition, the true interpre- tation of the statute of Geo. III. excluded the Mortmain Act, while the other members of the court seemed to have enter- tained a different view. The reasoning of the Chief Justice appears to me to be unanswerable at least, if the decision of Sir Wm. Grant, in Attorney-General v. Stewart, is correct, and, apart from its intrinsic force, it would be hopeless to? impugn this, after its approval by the House of Lords, in Whicker v. Hume (f). It was attempted in the argument of this appeal to distinguish Doe Anderson v. Todd, and withdraw it from the application of the principles enunciated in the two English cases. I do not think the attempt was attended with success. It proceeded upon the differences in the terms employed in intro- ducing the laws of England into this province, and into Grenada and New South Wales respectively. Our statute enacted that (f) 16 Jr.r. H9. THE SOURCES OF OUR LAW. 115 ‘ 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.’ In Grenada, justice was to be administered, as near as might be, according to the laws of England. In New South Wales, the laws in force in England, ‘ so far as they can be applied within the said colonies,’ were introduced. Sir Wm. Grant held that ‘ the question of whether the statute was in force in Grenada depended upon this consid eration whether it be a law of local policy, adapted solely to the country in which it was made, or a general regulation of property, equally applicable to any country in which it is by the rules of English law that property is governed ; ‘ and, having discussed the scope of the statute, he decided it to be local in its character, and not a general regulation of property. In Whicker v. Hume, Lord Cranworth emphatically says : ‘ With regard to this statute of Mortmain, ordinarily so called, I cannot \have the least doubt that that cannot be regarded as applicable Ito the colonies.’ This being the construction placed npon the statute by such high authorities, the respondents were forced to the broad construction, that all the laws of England relative to property and civil rights, whatever might be their historical origin, or however political their character, or however clearly they grew out of local circumstances, or we*e meant to have a, local operation, were introduced. The observations of the Chief Justice, in Doe Anderson v. Todd, seem to me {To[etfectuallyjdis- pose of this proposition. As he points out, the language of the statute does not expressly introduce the whole civil law of England, but seems to be limited to the purpose of giving the principles of the English law as the rule of decision for settling questions, as they might arise, relative to property and civil rights. If this be the correct view, I cannot perceive that any substan- tial distinction can be founded upon the differences of language to which I have referred.” He, however, doubted the propriety of the decision in that case, as founded on too slight a legislative recognition of the Imperial Act as being in force here, and concluded his opinion by saying : ” It is upon the ground of this sub- sequent legislative recognition that I wish to place my 116 THE CANADIAN CONSTITUTION. judgment, that the statute must now be held to be in force in this province ” (g). Stark v. Ford (A) is the rather amusing record of an unsuccessful attempt to subject a Canadian judge to the penalties provided in the Act ” for abolishing the Court of Star Chamber,” 16 Car. I. c, 10. Upon examination of the statute, Robinson, C.J., points out that its whole scope was fto[forejxJput a stop to the unconstitutional usurpation of judicial functions by the Court of Star Chamber, and ridiculed the idea of extending it to a judge alleged to have acted illegally in the exercise of his assigned duties. At tjie date of the passing of the Provincial Act, 32 Geo. III. c. 1, the law of marriage both as to the O forms to be observed, and as to the disabilities which would prevent its solemnization in certain cases in force in Great Britain, was regulated by the statute commonly known as Lord Hardwieke’s Act, 26 Geo. II. c. 33. Since 1792, many provincial statutes have made provisions on many, if not most, of the matters legislated upon by Lord Hardwieke’s Act(i): but; as late as 1887, the latter statute has been expressly recognized as introduced as a whole by our tirst provincial Act. The reasons given for so considering it in force, constitute the material matter for us in this enquiry, and by way of contrast we may note the reasons given for holding as has in 1889 been finally held that section 11 of the Act was never introduced into our law. “That section rendered such marriage by license” i.e., of a minor without consent of parent or guardian ” absolutely void, without any sentence of the court ; and length of cohabita- (n) See Smith v. Methodist Church, 16 O. R. 199 ; Butland v. Gillespie, ib. 486. (h) 11 U. C. Q. B. 363. (i) The whole matter has never been taken up by our legislatures because of the differences in religious view on the question in Upper and Lower Canada respectively ; and note the division of the subject between the Dominion and the provinces under the B. N. A. Act, s. 91, s-s. 26, and s 92, s-s. 12. THE SOURCES OF OUR LAW. H7 tion and birth of children afforded no ground of exemption (j) ; and consent subsequently given would not avail to validate. This rigorous law was soon after repealed in England, and no judge has regarded with favor the proposal to hold it applicable to this country. Judicial opinion as reported is all the other way.” Per Boyd, C., in Lawless v. Chamberlain (/,-). “Whether the llth section of the Act containing that provision was ever part of the law of this province, by virtue of our adoption of the law of England, may fairly be questioned. If it ever was, it must be so still, as we have already mentioned, because the English statute repealing it is of too modern a date to be binding upon us by virtue of our statute 32 Geo. III. c. 1, and it has no relation to the colonies ; but it would be difficult to satisfy our- selves, we think, that it ever has been in force in Upper Canada, on account of the impossibility of applying the 12th clause to the condition of things here. We could not therefore have the enactment respecting the consent of parents in its integrity, and as it would work great hardship to have the llth clause in force without the 12th or any other provision as a substitute for it, we shall, perhaps, if we find it necessary in any case to determine the point, find it right to determine that neither of these clauses could be taken to form part of our law of marriage under our own adoption of the law of England by 32 Geo. III. c. 1.” Per Robinson, C.J., in Reg. v. Roblin (/). ** The reasons given on the other hand for holding the Act, other than the clauses in question, to be introduced here, will appear in the following passages extracted from the opinions of Robinson, C.J., Esten, V.C., and Armour, C. J., in three cases in which those judges had the question under consideration : ” When by our statute 32 Geo. III. c. 1, the provincial legis- lature adopted the law of England as the rule of decision . . they adopted to the extent mentioned, not merely the common law of England, but also the statute law, with the (j) Johnstone v. Parker, 3 Phill. 41. (k) 18 0. R. at p. 309. (1) 21 U. C. Q. B. at p. 350. See Reg. v. Seeker, 14 U. C. Q. B. 604, and Reg. v. Bell, 15 U. C. Q. B. 287. 118 THE CANADIAN CONSTITUTION. exceptions specified in the Act, and with other exceptions, though not specified, of such laws as are clearly not applicable to the state of things existing in the colony, of which various examples might be cited. ” We consider that our adoption of the law of England to the extent and with the exceptions just mentioned, included the law generally which related to marriage. The statute 26 Geo. II. c. 33, being in force in England when our statute was passed, was adopted, as well as other statutes, so far as it consisted with our civil institutions, being part of the law of England at that time ‘ relative to civil rights ‘ ; that is, to the civil rights which an inhabitant of Upper Canada may claim as a husband or wife, or as lawful issue of a marriage alleged to have been solemnized in Upper Canada. ” The legislature of Upper Canada have so regarded this matter, as appears by the statute 33 Geo. III. c. 5, sees. 1, 8 and 6 ; 38 Geo. III. c. 4, s. 4 ; and 11 Geo. IV. c. 36, in which they have recognized the English Marriage Act, in effect, though not in express terms, as having the force of law here in a general sense, and controlling the manner in which marriage is to be solemnized.” Per Robinson, C.J., in Regina v. Roblin (in). ” No doubt the Act of the 32nd of the late King, introduced all the Jaw of marriage as it existed in England at that date, excepting, perhaps, some clauses of the 26 Geo. II. c. 38. It introduced the Acts 25 Hen. VIII. c. 22 ; 28 Hen. VIII. c. 7 & 16 ; and 32 Hen. VIII. c. 88, so far as they remained in force, and so much of the canon law as had been adopted by the law of England.” Per Esten, V.C., in Hodgins v. McNeil (n). ” The legislature of this province has repeatedly recognized that Act as being in force in this province, by from time to time passing laws modifying and qualifying its provisions. See 33 Geo. III. c. 5 ; 38 Geo. III. c. 4 ; 2 Geo. IV. c. 11 ; 11 Geo. IV. c. 36. “Having regard to the provisions of the Acts 82 Geo. III. c. 1, and 40 Geo. III. c. 1, to the cases above referred to, and to the recognition thereof by the legislature of this province, as above mentioned, I am clearly of opinion that the Act 26 Geo. II. c. 33, was brought into force in this province by the Acts ^ (m) 21 U. C.^Q. B. at p. 355. (n) 9 Grant, at p. 309. THE SOURCES OF OUR LAW. 119 32 Geo. III. c. 1, and 40 Geo. III. c. 1, s far as its prtvisitns were applicable to the circumstances of this province, and were not inconsistent with the civil institutions thereof ; and that, at all events (which is all that I am concerned with in this case), the provision thereof making all marriages which should be solemnized without publication of banns or license of marriage from a person or persons having authority to grant the same, first had and obtained, null and void to all intents and purposes whatsoever, was brought into force. “Unless this provision was so brought into force in this pro- vince, there is no provision in this province making void a marriage so solemnized, and the fact that the legislature of this province has never deemed it necessary to make any such pro- vision, is cogent evidence that it considered it unnecessary to do so ; because this provision of 26 Geo. II. c. 33, was treated by it as being in force in this province.” Per Armour, C.J., in O’Con- nor v. Kennedy (o). From the above cases it will be seen that 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 considered : 1st. Is the British statute one which can be considered -as so applicable to the circumstances of this colony, that the legislature must have intended to introduce it by the in- trinsic effect of their Act 32 Geo. III. c. 1 ? This question, in the case of the Mortmain Acts, does not seem to have been unanimously answered by Canadian judges, but the weight of authority would appear to be for a negative answer in conformity, as will have been noticed, with English decisions, As to the Marriage Act of Lord Hard- wicke, there seems to have been no difference of opinion- all agreeing in the result arrived at, in favor of an affirma- tive answer, except as to the llth and 12th clauses. 2nd. Has there been subsequent legislative recognition by the provincial parliament, of the binding force here of the Act in question ? As to both Acts, the answer has been (o) 15 O. R. at p. 22. 120 THE CANADIAN CONSTITUTION. unanimously in the affirmative. To these considerations- may be added : 3rd. Have the decisions of provincial courts proceeded 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 ? In the later cases there can be no doubt this* consideration operated most powerfully. In Whitby v. Liscombe (p), in 1876, Mr. Justice Burton uses this. language : ” Where solemn determinations which establish a rule of property have been acquiesced in for so long a period, a court even of last resort should require very strong grounds for interfering with them ” ; and Mr. Justice Patterson, speaking of Doe Anderson v. Todd, says : ” It has been acquiesced 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 enact- ment ” ; and we have already quoted the opinion of Mr. Justice (afterwards Chief Justice) Moss, in which the same rule of expediency is expressed in those polished periods 1 >y
which his written opinions are always characterized.

The case Hesketh v. Ward (g), brings into prominence
another question proper for consideration, in deciding
whether or not a particular Imperial Act (we are of course
dealing with Acts in force in England on 15th October
1792) is in force in Ontario, namely, the question 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 ? Upon a review of the cases
already mentioned, this consideration will appear to have
been always present to some extent, but in Hesketh v.
Ward it was the real point for decision. The Acts in
question there, were 1 Anne (st. 2) c. 6, and 5 Anne. c. 9,
making certain provisions in reference, amongst other
matters, to escape warrants. Richards, C.J., after a careful

(p) 23 Grant, 1. (</) 17 U. C. C. P. 667. See ante, p. 93. -V-. THE SOURCES OP OUR LAW. 121 consideration of the first-mentioned statute, decided that it was not part of our law, because ” passed with reference to the peculiar position of the officers of the prisons ” the Marshalsea .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 ” ; and again because ” in terms it is only applicable to the two English prisons named in it ; to remedy evils which the preamble …. refers to as peculiar to persons of the descriptions there referred to, and as to which no apparent necessity exists in this country.” The dissenting opinion of Mr. Justice Wilson (afterwards Chief Justice Sir Adam Wilson) is not a dissent in principle, but a joiner of issue on the facts. After a lengthy historical discussion, showing his usual painstaking research, he points out that, ” 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 an amendment of the law, 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 of the statute itself, has an operation here upon all the prisons of the courts ” (r). In a series of cases it was held that the provisions of 14 Geo. III. c. 78, relating to the liability of persons upon whose premises a fire accidently starts, for damages result- ing from its spreading to the premises of another, are part of our law, because they were part of the general law of England, introduced by 32 Geo. III. c. 1, and were not of local application there in the sense before referred to (*). (r) On this principle, many English statutes referring to, e.g., the courts “at Westminster ” have been held to be part of general 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. 93. (*) Gaston v. Wald, 19 U. C. Q. B. 586; Stinson v. Pennock, 14 Grant, 604; Carr v. Fire Ass., 14 O. R. 487; C. S R. v. Phelps, 14 122 THE CANADIAN CONSTITUTION. s The cases heretofore considered have had relation to the effect of 32 Geo. III. c. 1, and the phraseology employed in that Act, has been relied on in support of the contention for a limited introduction of the English statutory law relating to property and civil rights. We now turn to the Provincial Acts, by which the English criminal law was introduced into this province, and the limits of its applica- bility defined. As has been already noticed, the Quebec Act, 1774, (14 Geo. III. c. 83), while re-introducing the law of Canada i.e., the French law in force at the conquest into the Province of Quebec, as described by the Act, pro- vided for a continuation therein of the criminal law of England. “XL And whereas the certainty and lenity of the criminal law of England, and the benefits and advantages resulting from the use of it, have been sensibly felt by the inhabitants from an experience of more than nine years, during which it has been uniformly administered ; be it, therefore, further enacted by the authority aforesaid, that the same shall continue to be adminis- tered, and shall be observed as law in the province of Quebec, as well in the description and quality of the offence as in the method of prosecution and trial, and the punishments and forfei- tures thereby inflicted, to the exclusion of every other rule of criminal law or mode of proceeding thereon, which did or might prevail in the said province before the year of our Lord 1764 ; B. C. R. 132. For other cases in Upper Canada (Ontario) on this subject, see Torrance v. Smith, 3 U. C. C. P. 411, and Hearle v. Hoss, 15 U. C. Q. B. 259, in which 26 Geo. III. c. 86, exempting vessel owners from liability for loss through fire, was held to be part of our law ; Reg. v. Mc- Cormick, 18 U. C. Q. B. 131 Nullum Tempus Act (9 Geo. III. c. .16), in force here; Dunn v. O’Rielly, 11 U. C. C. P. 404, in which the clauses in 22 Geo. II. c. 46, relating to attorneys, were held to be in force here, although other parts of the Act inapplicable (a veritable witches’ cauldron, this!); Reg. v. Row, 14 U. C. C. P. 307, in which 28 Geo. III. c. 49, s. 4 (enabling a magistrate for a county-at-large to sit within a city, itself a county, within the boundaries of the connty-at-large), was held not to be in force, being local in its character ; Bleeker v. Myers, 6 U. C. Q. B. 134; Hart v. Meyers, 7 U. C. Q. B. 416 ; Garrett v. Roberts, 10 O. A. R. 650 18 Eliz. c. 5, as to suits by informers, in force here. THE SOURCES OF OUR LAW. 123 everything in this Act to the contrary thereof in any respect notwithstanding ; subject, nevertheless, to such alterations and amendments as the Governor, Lieutenant-Governor, or Com- mander-in-Chief for the time being, by and with the advice and consent of the legislative council of the said province, hereafter to be appointed, shall from time to time cause to be made therein in manner hereinafter directed.” The Constitutional Act of 1791, while dividing the Pro- vince of Quebec into Upper and Lower Canada, left each province with the law as it stood under the Act of 1774 (except of course as altered by provincial ordinances), but gave each province a legislature empowered to make laws for the peace, welfare and good government thereof. What Upper Canada would do, was pretty well understood. As was anticipated, she annuled the old French law, and adopted the law of England as the rule for decision of all controversies relative to property and civil rights ; and she not merely adhered to the criminal law of England, as introduced by the proclamation of 1763, and continued by the Quebec Act, above quoted, but she went further, and by 40 Geo. III. c. 1, enacted that “the criminal law of England as it stood on the 17th day of September, A.D. 1792, shall be, and the same is hereby declared to be, the criminal law of this province.” Under this statute, every Act of the British parliament \ in force as part of the general criminal law of England on / the 17th day of September, 1792, was introduced into / Upper Canada. The date in reference to which the/ English criminal law should be considered in force was thus brought forward by 18 years, and under it, as well as under the Quebec Act of 1774, the enquiry proper under the common law as to the applicability of an Imperial Act to the circumstances of a colony was eliminated, and the only enquiry is Is the Imperial statute local in the sense we have mentioned ? If not, it is part of the law of Upper Canada. 124 THE CANADIAN CONSTITUTION. n We must, however, again repeat that we are dealing in /ythis chapter with English statutes of no express application //to the colonies, and the Provincial Act, 40 Geo. III. c. 1 applies only to such statutes (t). Imperial Acts which l>i’ojti’io vigore, apply to us, are treated of elsewhere. With
this repeated caution, we proceed to consider some Canadian
authorities upon the question of the introduction of English
criminal law into Upper Canada (a).

In Beasley, qui tarn, v. Cahill (v), it was held that the
Imperial statute, 32 Hen. VIII. c. 9, against buying disputed
titles, was in force in Upper Canada. It was contended
that the statute was obsolete, even in England, and
Robinson, C.J., remarked that this seemed to him rather
singular, as the reasons assigned in the preamble of the Act
for its passing, were reasons sufficient in all times : but
notwithstanding that it seemed to have remained so long a
dead-letter in England, he held the Act to be in force in
Upper Canada, because ” it constitutes part of the criminal
law of England, which we have adopted by an express
statute, introducing it as it stood in England on the 17th
September, 1792 ‘ ; (w).

In Regina v. Mercer (x), certain English Acts against
the buying and selling of offices were considered (5 & 6
Edward VI. c. 16, and 49 Geo. III. c. 126). The latter Act
it will be noticed, is of a date subsequent to 1792, and does
not therefore fall within our present enquiry ; it was how-
ever held to be of express colonial application, and tliere-

(0 Bank of U. C. v. Bethune, 4 U. C. Q. B. (O. S.) 165 ; see ante, p. 69.

(a) Since the above was written, the ‘ Criminal Law ” of Canada has
been codified, and (it is understood] all necessity for reference to English
criminal law obviated. As, however, the ” criminal law ” over which the
Dominion parliament has legislative power, does not cover the whole
field of penal legislation, what we have written may still be applicable in
a few cases even in Ontario.

(c) 2 U. C. Q. B. 320.

(w) And see Purdy q. t. v. Ryder, Tay. 2.W.

(x) 17 U. C. Q. B. 602 ; see aho Foots v. Bullock, 4 U. C. Q. B. 480,
and Reg. v. Hoodie, 20 U. C. Q. B. 389.

THE SOURCES OF OUR LAW. 125

fore in force here. The Act of Edward VI. was unani-
mously held to be part of our law. Robinson, C.J., adverts
to the distinction between the two provincial Acts, 32 Geo.
III. and 40 Geo. III., in the following language :

“It is denied that this statute -has any force in Upper
Canada. If that point depended merely on the question whether
it is included in our adoption of the law of England, under our

statute 32 Geo. III. c. 1, a good deal might be

urged against the application of the statute It

is more to the purpose, I think, to consider whether 5 & 6
Edward VI. c. 16, should not be held to be in force here under
our adoption of the criminal law of England by 40 Geo. III.
c. 1, which enacted that the criminal law of England as it
stood on the 17th of September, 1792, shall be, and it was
thereby declared to be, the criminal law of Upper Canada. I
think it must be held that the statute formed part of the criminal
law of England which was thus introduced.”

McLean and Burns, JJ., were equally free from doubt.

So likewise, in a number of cases, the English Lottery
Acts were held to be in force in Upper Canada ; Cronyn v.
Widder (y) being the leading case. Both in this case and
Regina v. Mercer, above noted, it was urged that the
statutes were not criminal statutes, but with the considera-
tion which led the court in each instance to hold these Acts
to be part of the criminal law of England, we have here
nothing to do. It is more to our purpose to observe that
having held them to be part of the English criminal law,
the court applied them as part of the criminal law of
Upper Canada, without entering upon any inquiry as to
their adaptation or want of adaptation to the circumstances
of Upper Canada.

And in Reid v. Inglis (0), Draper, C.J., speaking of the
Act 1 Win. & Mary, c. 18, “against disturbers of religious

(y) 1$ U. C. Q. B. 356, and seeCorby v. McDaniel, ib. 378. In earlier
cases referred to in these, the Acts were not questioned.
(z) 12 IT. C. C. P. 191.

126 THE CANADIAN CONSTITUTION.

meetings,” said : “I see no reason for holding that the Act
is not in force here;” from which we would infer that, in
his opinion, all English criminal statutes in force in Eng-
land in 1792, are />//’///// facie in force here (<i).

And now even at the risk of a charge of undue repeti-
tion we must again point out, that in any case, the ques-
tion 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
legislation Canadian or Provincial, as the case may TJe^-
on the subject matter involved. If there is none such, then
the principles we have ‘omamorafeyni the cases we have
reviewed, will have to be considered, and may be sum-
marized shortly by saying :

As to the criminal laiv, no question can arise, save
the one question Is the act one of general English appli-
ca^tion ? If so, it^is, in the absence always of colonial legis-
lation, as above specified, part of our law under 40 Geo.
III. c. 1.

AN fu prof wrty (in must be considered: (1) Is the Act one of general English
application in the sense we have mentioned < (2) If so, is
it an Act properly applicable to the circumstances the
commercial, religious, and social environments of this pro-
vince \ (3) If not so applicable, or if the matter is one of
reasonable doubt, has there been a legislative recognition
of the Imperial Act, as being in force here ? (4) Have the
decisions of the courts proceeded so clearly upon one line,
as to have established a rule of property or ,S/^/<(N in the
province ?

It will be seen that, owing to the recognition by Upper
Canadian judges of the propriety of making an inquiry as

(a) See Sheldon v. Law, 3 U. C. Q. B. (O. S.) 85, and Fulton v. James,
5 U. C. C. P. 182 (horse-racing) ; Reg. v. Milford, 20 O. R. 30#(9 Geo.
II. c. 5, against fortune telling), and Reg. v. Barnes, 45 U. C. Q. B. 276

(Lord’s Day Act).

THE SOURCES OF OUR LAW. 127

to the applicability of any Imperial Act to the circum-
stances of this province, the principles upon which the
decision must rest, in the case of any given statute, are the
same (except as to criminal statutes) as those laid down in
the decisions of the Nova Scotia and New ^Brunswick
courts, and, as we shall hereafter see, the statutes by which
this question is governed in the provinces more lately
acquired, expressly make ” applicability ” the test of their
introduction.

The English authorities upon this subject are suffi-
ciently referred to in the extracts taken from the Canadian
authorities. As pointed out by Chief Justice Halliburton,
in Uniacke v. Dickson (b), those authorities lay down no
very definite principle to guide colonial judges in coming
to a decision in this very important matter; and, for this
reason, we have gone more elaborately into the authorities
in the older provinces than might seem necessary, so far as
those older provinces alone are concerned; but, owing to
the comparatively recent dates which have been fixed upon
in the lately acquired provinces (c), as the date for the
introduction of English law, the questions discussed in
this chapter are certain to be of frequent occurrence in
those provinces, and we, therefore, leave this chapter as
originally written.

So far as the province of Ontario is concerned, the
matter now stands :

As to the law relative to property and civil rights
upon R. S. O. (1887) c. 93, in which, after reciting 32 Geo.
III. c. 1, the Legislative Assembly of Ontario enacts as
follows :

” 1. In all matters of controversy, relative to property and
civil rights, resort shall continue to be had to the laws of
England, as they stood on tEe said 15th day of October, 1792,
as the rule for decision of the same, and all matters relative to
testimony and legal proof in the investigation of fact, and the

(6) Ante, p. 78. (c) Rost, Chap. XIII. et seq.

12cS THE CANADIAN CONSTITUTION.

forms thereof, in the several courts in Ontario, shall continue to
be regulated by the rules of evidence established in England, as
they existed on the day and year last aforesaid, (except so far as
\the said laws and rules have been since repealed, altered, varied,
modified, or affected by any Act of the Imperial parliament still
having the force of law in Ontario ; or by any Act of the late
province of Upper Canada, or of the province of Canada, or of
the province of Ontario, still having the force of law in Ontario,
or by these revised statutes.

“2. The statutes of Jeofails, of limitations, and for the
amendment of the law, excepting those of mere local expediency,
which, previous to the 17th day of January, 1822, had been
enacted respecting the laws of England, and then continued to
be in force, shall be valid and effectual for the same purposes in
Ontario, excepting so far as the same have, since the day last
aforesaid, been repealed, altered, varied, modified, or affected in
the manner mentioned in section 1 of this Act.”

And as to the criminal law upon R. S. C. (1886)
c. 144, by section 1 of which it is enacted as follows :

” The criminal law of England, as it stood on the 17th day
of September, in the year 1792, and as the same has since been
repealed, altered, varied, modified, or affected by any Act x of the
parliament of the United Kingdom, having the force of law in
the province of Ontario, or by any Act of the parliament of the
late province of Upper Canada, or of the province of Canada,
still having force of law, or by any Act of the parliament of
Canada, shall be the criminal law of the province of Ontario.”

QUEBEC.: The position of this province is so entirely

‘ unique, that reference to its legal system is of no aid in

the other provinces. Its civil law (founded on the “Code

: Civile” of Napoleon) has since been recast into a provincial

code, and no reference to English law is in order in th.-it

province in the sense we are now discussing. As to the

criminal law, its recent codification obviates any further

reference to it.

CHAPTER VI.

THE PREROGATIVES OF THE CROWN.

There has been no more fruitful cause of dispute and
debate, in reference to the government of the British
colonies, than the lack of a proper understanding of that
branch of English law which relates to the ” prerogatives
of the Crown”; and within a comparatively recent period
the same want of appreciation of the essential principles
lich underlie that law has given rise to notable disputes
(a) between the executive authorities of the Dominion and-
of some of the provinces, as to which executive head the
Governor-Generator Lieutenant-Governor should exercise
ithe prerogatives in certain cases. And, in truth, this lack
of a proper grasp of the situation is not much to be won-
dered at : and, for this reason, that the authorities on this
branch of law (b) 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 prin-

(a) Atty.-Genl. (Can.) v. Atty.-Genl. (Ont.), 19 O. A. R. 31, affirming
20 O. R. 222 ; see Lenoir v. Ritchie. 3 S. C. R. 575. The question about
the appointment of Queen’s Counsel is now standing for argument
before the Court of Appeal for Ontario.

(b) ” A topic that in some former ages was ranked among the arcana
imperil; and, like the mysteries of the bona dea, was not suffered to be
pried into by any but such as were initiated in its service; because, per-
haps, the exertion of the one, like the solemnities of the others, would not
bear the inspection of a rational and sober enquiry.” Blackstone.

CAN. CON. 9

130 THE CANADIAN CONSTITUTION.

ciple which runs through it (c). The old juristic saw, abi
jiix <>M. rat) win ibi nvisera servitus, has no more forcible
illustration than in the history of the struggles of the
English people to free themselves from the despotism of
government by prerogatives, unearthed by the industry of
servile lawyers, and tortured into legal justification for
executive oppression.

It is absolutely necessary to clear up this vagueness and
to assign a definite position in English jurisprudence to
that branch of it which relates to these “prerogatives.

It would be highly interesting, but altogether beyond
the scope of this work, to enter upon a philosophic enquiry
into the relative antiquity of the legislative and executive
departments of government the law-making and the law-
executing power or even upon the more limited enquiry
into their relative position, historically considered, in Brit :
ish jurisprudence. We can merely say, that from time
immemorial there has been a clear distinction drawn by
jurists between these two departments. If any theory can
be said to have legal validity, it would appear that the
legal theory of British jurisprudence is, that further back
than any court will look there was a body of law a funda-
mental law (so to speak) of the constitution (W) by virtue
of which both King and Parliament had their legal being,,
and by it the relations of King to Parliament, and of each
to the government of the kingdom, were regulated. This
common law of England recognizes only one executive
magistrate as exercising authority without commission
from any other, within or without the realm. That execu-
tive magistrate is the occupant for the time being of the
British throne. All other magistrates act “by commission

(c) Hagarty, C.J., speaks of the ” boundless crop of venerable learning
as to pardon and prerogative.” 19 O. A. R. at p. 36.

(d) ” The original right of the kingdom and the very natural consti-
tution of our state and policy,” pc.r Yelverton, ary. 2 St. Tr. 483. And see
Hale’s Hist, of the Common Law ; Broom’s Const. Law, 2nd ed., p. 245,

ct xt'(.

PREROGATIVES OF THE CROWN. 131

from and in clue subordination to him ” (e). But the power
and duty of this executive head is to execute the laws of
the realm. He is not above those laws, but under them,
being bound by them equally with the meanest of his
subjects. It follows, of course, that no commission from
him would carry authority to act otherwise than according /
to law (/). In order to the due execution of the laws, this//
” common law of England ” has invested the executive headj/
with certain attributes and powers, and these are collect-|
ively known as the “prerogatives of the Crown.” The
power to alter the law of the land was no part of these
prerogatives (</): that power rested exclusively with parlia-
ment, the lex et eonvwetuedo of which is equally part of the
common law. Parliament consistecj 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 were supposed to be discovered
by the executive head in the course of the administration
of public affairs ; whereupon, in the exercise of his pre-
rogative right, vested in him by the common law, to sum-
mon the three estates of the realm, he would cause parlia-
ment to assemble in order that the law might (if all agreed)

(e) Chitty, ” On the Prerogatives of the Crown;” 4.

(/) Ib. 5 ; Bracton, L. 1, c. 5.

(g) The power of the Crown, without parliament, to make such laws
as might seem proper, for a conquered territory, was no exception in
reality ; its exercise was in the nature of executive action. See
Clark, Colonial Law, 6, 8 ; Campbell v. Hall, Cowp. 204 ; and the valu-
able 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, inas-
much as the government is not absolutely monarchical, but the authority
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.,
appx. in Wilcox v. Wilcox, and L. C. Jur., vol. 1, 2nd part, pp. 38-48. See
also the various judgments in Stuart v. Bowman, 2 L. C. B., and in appx.
to 2 L. C. Jur.” See also Forsyth, 12, et seq.

132 THE CAN A MAN CONSTITUTION.

In 1 altered and the defect remedied. Parliament, however
once assembled, might address itself, not merely to the alter-
ation desired, but to the alteration of the law upon other,
matters : and the other branches of parliament, or either of
tli em, might bargain for the latter as the price of the
former. In any case, any and every alteration in the law
agreed upon by the King and the three estates was there-
after part of the law, to the execution of which the power
and duty of the King was limited. As it is sometimes, but
not very intelligibly, expressed, the King’s authority, as
executive head of the nation, is subordinate to his authority
as nipn.t <-t tii)i.K jHH’liinnr-nfi. (//). But while parliament may enact laws has enacted many laws even with refer- ence to the prerogatives of the Crown, their extent, and the mode of exercising them, still, unless parliament goes to the full extent of law-making in any given case, it cannot weaken, in the slightest degree, the legal effect of the exercise by the Sovereign of a prerogative right attributed to him by the common law ; and this- legal effect is what the older writers particularly notice. So careful, indeed the old writers put it is the com- mon law in its provisions for the due execution of the laws of the land : so careful to provide a check against any legislative hindrance to their smooth and expeditious working, that the executive magistrate the Crown is by the common law, and for the very purpose of protecting the royal executive authority (i), a constituent branch of parliament: and the consent of the Crown is absolutely essential to the validity of all Acts. This right to give or withhold consent, has been treated as itself one of the piv-^ rogatives of the Crown- the cover and protection to all the other prerogatives and upon its exercise the law recog-y (//) See Steph. Comm. Vol. II. p. 340, as to the proper meaning of this phrase. (?) Chitty, On the Prerog. of the Crown, p. 3 ; see ante, p. 33, for an extract from Gov. Cornwallis’ commission, disclosing this reason in frank terms. PREROGATIVES OF THE CROWN. 133 nizes no limitations. While from time to time parliament has withdrawn certain prerogative rights from the Crown ; has, in regard to others, required the concurrence of some other person -or body of persons in order to their legal exercise; and in many ways has 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 for prerogative it may be called ‘of giving or withholding such consent, no power short of revolution can ever take away (ji). This is the aspect of the question which is pre-eminently apparent in the law books, and it is the utter inadequacy of this one- side-of-the-story mode of treatment which makes this branch of the law so unintelligible to the ordinary student. He is haunted by the idea that what he is reading is largely mere antiquarianisrn ; and yet, the statements made are statements of legal principles which he cannot gainsay. The points of importance to a proper understanding of this branch of jurisprudence, are so slurred over, that it is only by patient spelling out of what appear to be treated as minor subdivisions that we can reach a satisfactory solu- tion of the problem. As a matter of history, parliament perhaps we should say the House of Commons has always found means to secure the consent of the Crow r n to the enactment of laws on which its heart was bent ; and, leaving aside for a moment the legal necessity for such con- sent, let us work out the other legal principles to which we have alluded. Back of legal memory, stands the common law of Eng- land.’ “The law makes the King” (k) ; the attributes and powers which attach to his office, as executive head of the (j) See notes to sec. 2 of the B. N. A. Act, post, for a reference to the method adopted to get over this difficulty, in the case of the Bill of Rights 1 Wra. & Mary, st. 2, c 2. (k) Bracton, L. 1, c. 8; Hale, Hist, of the Common Law; Broom, Const. Law, 248. 134 THE CANADIAN CONSTITUTION. nation, are part of that common law ; are defined and limited l>y that law, and are in aid of the executive (I).
Over against, or at least distinct from the King, stands
Parliament. It is the creation of that same common
law (m), and to parliament alone does that common law
entrust the power to alter the law of the land, whether
common or statutory, upon any and every conceivable
subject matter. Parliament, therefore, can alter the lex
preroyativa (n) ; and it needs no very extensive knowledge
of English history to appreciate that the House of Commons
never relinquishes what it gains of control over the execu-
tive. The history of English legislation is the history of
curtailment of prerogatives, and particularly of those pre-
rogatives in the exercise of which any large amount of
discretion was open to the Crown, as to time, place and
manner of exercise.

At this stage, some attempt should perhaps be made to
classify the ” prerogatives of the Crown ” as they are
enumerated in the works of such writers as Hale, Black-
stone, and Chitty. One large principle of division appears
in the classification of prerogatives into attributes, and
prerogatives proper. The attributes of sovereignty, (or
pre-eminence), perfection, and perpetuity, find expression
in the sayings : ” The King is properly the sole executive
magistrate” (o); “The King can do no wrong”; and
” The King never dies.” With these legal principles, and
their position in English jurisprudence, we need not now
concern ourselves, as they are passive.

(I) Broom, 316.

(m) Steph. Comm. (5th ed.) vol. II. p. 335.

(n) So far, indeed, does the power of parliament over the executive
extend, that it can not only deal by legislation, with the lex prerogativa,
but it can ” make laws and statutes of sufficient force and validity to
limit and bind the Crown and the descent, limitation, inheritance, find
government] thereof ,” at least the statute, G Anne, c. 7, adjudges traitors,
all who affirm the contrary.

(o) Chitty, p. 4.

PREROGATIVES OF THE CROWN. 135

The prerogatives proper represented, according to the
common law, powers of action in connection with every
department of executive government, administrative and
judicial. Even those prerogative powers in connection
with the assembling, proroguing and dissolving of parlia-
ment were in aid of the executive (p). CHITTY divides
these prerogatives proper the line of division is not very
exact into:

1. Prerogatives in reference to foreign states and affairs,
such as the sending of ambassadors, the making of treaties,
making war and peace, and the various acts of executive
government necessary in connection with these various
matters (g).

2. Prerogatives arising from the recognized position
of the Crown as Head of the Church, with which we in
Canada need not perhaps trouble ourselves (r).

3. Prerogatives in connection with the assembling, pro-
roguing, and dissolving of parliament ().

4. Prerogatives annexed to the position of the Crown
as the fountain of justice (t) ; 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, which flow from the position of
the Crown as the fountain of /ton our, such as the bestow-
ing of titles, franchises, etc. (u).

6. The superintendency of commerce (?;).

(p) See ante, p. 131.

(q) 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 Chap. IX. post.

(r) Chitty, 50. See in re Lord Bishop of Natal, 3 Moo. P. C. (N. S.)
115 ; Forsyth, 35, et seq.

(s) Chitty, 67. See Chap. VIII. and notes to sees. 38 and 50, B. N. A.
Act, post.

(t) Chitty, 75. () 11. 107. (v) Ib. 162.

136 THE CANADIAN CONSTITUTION.

7. The prerogatives in connection with the collection of
the revenue (w).

Sergeant STEPHEN in his new Commentaries on the
Laws of England (founded on Blackstone), adopts a some-
what different division. According to his arrangement,
prerogatives are either direct, or by way of exception. Of
the latter he says (x) :

” Those by way of exception are such as exempt the Crown
from some general rules established for the rest of the com-
munity as in the case of the maxims that no costs shall be-
recovered against the Crown; that the Sovereign can never be a,
joint-tenant ; and that his debt shall be 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 (z). Of these
divisions, the prerogatives by way of exception, and those
regarding the royal authority and the royal income, corres-
pond with Chitty’s division treating of “prerogatives
proper.”

So far as the government of the United Kingdom is
concerned, we may, for reasons about to be stated, abandon
any further discussion in detail of these prerogatives. It
requires nothing more than 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
fetfcered their exercise by conditions as to the manner, time,
and circumstances of putting them into execution: has;
indeed, in such a vast majority of cases, indicated the par-

(iv) Ib. 199.

(x) Steph. Comm. p. 494, vol. II. (5th ed.).

(y) See Exchange Bank v. Keg., 11 App. Cas. 157, in which it was held
that no such prerogative right exists in Quebec ; Reg. v. Bank of Nova
Scotia, 11 S. C. B. 1, and Maritime Bank v. Reg., 17 S. C. R. 657 (con-
trary holding as to Nova Scotia and New Brunswick). This last case
has just been affirmed by the Privy Council. See note (y) p. 144 pout.

(z) See Chap. II. ante p. 35, et seq.

PREROGATIVES OF THE CROWN. 137

ticular official by whom they are to be exercised, that
although exercised in the Sovereign’s name all discretion
in connection with them has vanished. They have very
largely ceased to be ” common law ” prerogatives, and are
now statutory powers. But, before entering upon a con-
sideration of the position of the colonies generally, and of
Canada in particular, in reference to ” prerogative ” we must
again emphasize the legal principle (a) that the lex prerog-\
ativa was part of the law of England, which parliament*
was able to alters and mould in such way as, in the opinion’
of parliament, would best conduce to the interests of the
people, or to put the same idea into different language
the law-making power in England has always been, and/
still is, supreme over the law-executing power, their sphere!
of activity being one and the same. We desire, too, to
draw attention to the fact that this control by parliament
over the executive, exists by law, and apart altogether from
those conventions of the constitution, the observance of
which secures harmony and co-operation between the two
departments of government, and that this control by
parliament is, in truth, the necessary result of the ” rule of
law.”

Upon the acquisition of a colony, what is the position of
its inhabitants in reference to this lex prerogativa ? This
broad question finds very scant consideration in the text
writers on this branch of law. The two following quota-
tions exhaust all that Chitty has to say on the subject :

” Though allegiance be due from everyone within the terri-
tories subject to the British Crown, it is far from being a
necessary inference that all the prerogatives which are vested in
His Majesty by the English laws are, therefore, exercisable over
individuals within those parts of His Majesty’s dominions in
which the English laws do not, as such, prevail. Doubtless
those fundamental rights and principles on which the King’s
authority rests, and which are necessary to maintain it, extend
even to such of His Majesty’s dominions as ai*e governed by their

.(a) See Steph. Comm. (5th ed.) 332, et seq.

188 THE CANADIAN CONSTITUTION.

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 Sovereign, which are merely local to England, and do not
fundamentally sustain the existence of the Crown, or form the
pillars on which it is supported, are not, it seems, prima fade,
extensible to the colonies, or other British dominions which
possess a local jurisprudence distinct from that prevalent in, and
peculiar to England. To illustrate this distinction, the attri-
butes of the King, sovereignty, perfection, and perpetuity, which
are inherent in, and constitute his Majesty’s political- capacity,
prevail in every part of the territories subject to the English
Crown, by whatever peculiar or internal laws they may be
governed. The King is the head of the Church ; is possessed of
n 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 depen-
dent on the British Crown, have different and local laws for their
internal governance, as, for instance, the plantations or colonies,
the minor prerogatives and interests of the Crown must be regu-
lated and governed by the peculiar and established law of the
place (b). Though, if such law be silent on the subject, it would
appear that the prerogative, as established by the English law,
prevails in every respect; subject, perhaps, to exceptions which
the differences between the constitution of this country and that
of the dependent dominion may necessarily create in it.
. . . In every question, therefore, which arises between the
King and his colonies respecting the prerogative, the first con-
sideration is the charter granted to the inhabitants (c). If that
be silent on the subject, it cannot be doubted that the King’s
prerogatives in the colonies are precisely those prerogatives
which he may exercise in the mother country. The preroga-
tives in the colonies, unless where it is abridged by grants, etc.
(c), is that power over the subjects, considered either separately
or collectively, which, by the common law of England, ab-
stracted from Acts of parliament and grants of liberties, etc.,

(/*) See Exchange Bank v. Reg., 11 App. Cas. 157, with which com-
pare Maritime Bank v. Reg., 17 S. C. R. 657.

(^) A fortiori, where the charter is an Imperial Act of Parliament.

PREROGATIVES OF THE CROWN. 139

from the Crown to the subject, the King could rightfully exercise
in England ” (d).

The statements contained in these passages, are not very
definite ; but bearing in mind the two methods of acquiring
colonies, by conquest (or cession) and by settlement
-and applying to each type the rules indicated, it may be
laid down : (1) That in a conquered or ceded colony which
continues to be governed by a foreign law (e), the lex pre-
TfHjutiva of English jurisprudence, is to be no more deemed
in force there, than is any other branch of English law (/),
subject as Chitty puts it, to the operation therein, of those
fundamental rights and principles on which the King’s
authority rests and which are necessary to maintain it ;
{2) That in a settled colony the lex prerogatives of English
law is carried with them by the settlers, just to the same
extent and with the same conditions as to applicability (g),
as is the case with the other branches of the common law,
and the prerogative rights of the crown are capable of
exercise in the execution of the law of a colony not having
a legislative body, only to the extent indicated in the
commissions of the executive officers who may be sent
out (h).

The point of supreme importance to us is not however
brought out, (except by inference) but it is a clear and
undoubted rule of English law, that upon the establishment,
by charter or Imperial Act, of a local legislature within
& colony, that legislature is, within the sphere of its
authority (be that sphere large or small), possessed of plenary
powers of law-making, and may, with of course the consent

(d) Chitty, 25-32.

(// the law of the colony ; and that would, of course, depend
011 the will of the colonial legislature as to all matters
confided to its authority. The proclamation which followed
the Treaty of Paris, made provision (j) for the calling
together in Canada, Grenada, and East and West Florida, of
” general assemblys,” empowered ” to make, constitute, and
ordain laws. . . for the public peace, welfare, and good
government of our said colonies and of the people and
inhabitants thereof ” ; and Lord Mansfield held (/:), that
the effect of this was to prevent the Crown from thereafter
exercising legislative authority within the colony. The
act of legislative authority questioned in that case, was
the imposition by Imperial Order in Council, of an export
tax on certain commodities, which strikes one as an act of
executive government rather than of legislation : but how-
ever that may be viewed, the reason given for the decision
was, that the Crown, (i.e., the executive authority of
England), was irrevocably pledged ” that the subordinate
(I) legislation over the island should be exercised by an
Assembly, with the consent of the Governor in Council, in
like manner as in the other provinces under the King,” and
settlers were guaranteed a government by, and according
to the laws made by such subordinate assembly. To the

(/) Chitty, p. 37.

( j) Perhaps we should say that it announced that provision had been
made, in the commissions to the governors of those provinces, for, etc.
See ante, p. 34.

(k) Campbell v. Hall, Cowp. 204; see Phillips v. Eyre, L. R. 6 Q. B.
at p. 19.

(/) i.e., subordinate to the Imperial Parliament.

PREROGATIVES OF THE CROWN. 141

like effect is the comparatively recent decision Qj^jiof the
Judicial Committee of the Privy Council, that ” after a
colony or settlement has received legislative institutions,
the Crown (subject to the special provision of any Act of
parliament (n), stands in the same relation to that colony or
settlement as it does to the United Kingdom.” The
decision in this last case was that the Crown has no power
to constitute, by letters patent, a bishopric or appoint a
bishop, (with ecclesiastical jurisdiction) in a colony pos-
sessed of an independent legislature. And in a still later
case (o) the Judicial Committee of the Privy Council held
that the Crown is bound by colonial legislation and in
Quebec is entitled 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 parliament of
(old) Canada, and continued in force in Quebec by the
B. N. A. Act, s. 129, “so that the Crown cttn claim no
priority except what is allowed by them.”

The legislatures existing in Canada, both Dominion i
and provincial, are statutory i.e., they exist under the
authority of the B. N. A. Act with the exception, to a
partial extent, of the legislatures of New Brunswick and
Nova Scotia, whose sphere of local authority is alone statu-
tory; and this fact, of course, makes the argument a fortiori
in the case of Canada. Certainly no act of the executive in \
England can be upheld against the provisions of an Imperial
sjiatute. The powers of our Canadian parliaments have \
been again and again declared to be, within their sphere,
plenary powers of legislation. It is unnecessary to labor
further upon this point, for a glance through our statute
books will disclose that our colonial parliaments have
legislated with regard to the exercise of the vast majority
of the prerogatives of the Crown down to the smallest

(m) In re Lord Bishop of Natal, 3 Moo. P. C. (N. S.) 115.

(n) i.e., of the Imperial Parliament.

(o) Exchange Bank v. Reg., 11 App. Gas. 157.

142 THE CANADIAN CONSTITUTION.

detail, and the discretionary power of the executive is
reduced to a minimum, as in the United Kingdom. It may,
however, be again remarked that now that executive
responsibility to parliament, and through parliament to
the electorate, is so thoroughly recognized, and the ” con-
ventions ” of the constitution which ensure such

bility, 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.

A rule frequently laid down in the authorities th
statute is not to be construed to deprive” the Crown of
prerogative right unless the intention so to do is expresse
in explicit terms, or arises by irresistible inference ( />)’
should, perhaps, be here adverted to. It applies to
colonial legislation (q) as well as to Imperial, and the case
of ExtuJiiange rVmk v. Reg. (r) is a good illustration of the
” irresistible inference ” which arises in cases where a statute
purports to be exhaustive legislation in reference to a par-
ticular subject matter : in which case the Crown is limited
to the rights and privileges (if any) conferred by the
statute. Applying this to the B. N. A. Act, it appears that
the execliuve government of Canada is to be carried on by
the Governor-General (*) and the executive government of
the several provinces by the respective Lieutenant-Go ver-
nors thereof (/), and that the Act taken as a whole “makes
an elaborate distribution of the whole field of legislative
authority” (u): and it follows irresistibly that the preroga-
tives of the Crown, so far as they are exerciseable in Canada,

(p) Maxwell ” On the Interpretation of Statutes,” p. 161. And see,
as to appeals from the colonies to her Majesty in her Privy Council,
Reg. v. Bertrand, L. R. 1 P. C. 520.

(q) See Maritime Bank v. Reg., 17 S. C. R. 657, (affirmed in P. C.
see note (tj) p. 144 ;K>.S^) and the ” Interpretation Acts ” of the Dominion,
and the various provinces, of Canada.

(r) Ante, p. 141. (x) Sec. 10; and see notes to sec. 9. (t) Sec. 62.

(u) Bank of Toronto v. Lambe, 12 App. Ca. at p. 587.

PREROGATIVES OF THE l|j|pfr. 143

or in any province thereof, must be exercised in her
Majesty’s name (>) by the officer who by the B. N. A. Act.
is entrusted with “the carrying on of government,” and,
cannot be exercised by the Queen i.e., through the Im-
perial authorities except in matters over which none off
our legislatures have legislative power.

We shall have occasion to refer with considerable fre-
quency to the limitations upon colonial legislative power
arising from the colonial static, and it is to be observed
that the prerogatives of the Crown relating to “Foreign
Affairs ” (w), including some as to military matters, have
not been placed within colonial legislative power, but are
under the control of the Imperial parliament for the
reasons (which indeed are obvious) indicated in an earlier
chapter (x). But we again repeat if hapjprly repetition
-y in this instance emphasize the principle which appears

is so important that in every case the power which
es the law upon any given subject* matter, must

(v) B. N. A. Act, sec. 9 and notes thereto, post.

(w) See note, ante, p. 135.

(x) And see notes to sec. 9 of the B. N. A. Act, post. The prerogatives
vested in the Crown as the Fountain of Honor are looked upon as (so to
speak) prerogatives at large and not connected with any particular
department of executive government. The dispute as to the position of
provincial Q.C.’s would seem to narrow itself down to the question,
whether the appointment is one connected with the administration of
justice, or simply an honorary title. If the former, then both the
Dominion and Provincial executives would appear to have the power
each in relation to the courts of Dominion or Provincial creation, as the
case might be. If the latter, then neither would appear to have it, any
more than either could make a man a knight. If there were no “bound-
less crop of venerable learning” to prejudice one’s judgment, and if
members of the bar are really officers of the courts, it would seem
reasonably clear that the prerogative is one relating to the organization
of courts, as to which both governments have powers conferred upon
them by the B. N. A. Act. See post, Chap. XI. In Beg, v. Aiasr
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.

.144 THE CANADIAN CONSTITUTION.

according to English law be the power which controls the
execution of that law in every detail. We have tried to
make this clear as to the colonies, and where those colonies
have what has been termed a ” Unitarian ” form of govern-
ment the rule would seem to be recognized by judicial
decision, and the universal practice of the legislatures of
such ” Unitarian ” colonies. A clear appreciation of the
principle will make it apparent that it applies to the
di tie rent governments of Canada; and that when we find the
legislature of the Dominion empowered’ to make laws upon
any given subject matter, any prerogative right capable of
exercise in relation to such matter, must, and can only be
exercised by the executive of the Dominion, and so of each
of the Provincial governments (//). The division of the
h’eld of government between the Dominion and the pro-
vinces is therefore a division along the line of subject
matters, and the whole power of government, legislative
;ind executive, in relation to any given subject matter,
rests in that government to which it is assigned for legis-
lative purposes.

(//) See per Burton, J.A., in Attorney-General (Can,) v. Attorney-
General (Ont.), 19 O. A. R. at p. 38. Since the above was written, the
report of the judgment of the Judicial Committee of the Privy Council
in Liquidators of Maritime Bank v. Receiver General of New Brunswick
has appeared. It affirms the text. See Times Laic Imports, 6 July, 1892.
We shall have occasion to refer to it again.

CHAPTER

EXECUTIVE CHECKS ON COLONIAL LEGISLATION.

The position of the crown as a branch of the Imperial
parliament, and the reason therefor, is very clearly ex-
pressed in a work to which frequent reference was made in
the last chapter (a):

” The king is, therefore, very properly a constituent part of
parliament, in which capacity he possesses the means of preserv-
ing inviolate his rights and prerogatives as supreme executive
magistrate, by withholding his assent at pleasure, and without
stating any reason, to the enactment of provisions tending to
their prejudice (b). It is however only for the purpose of protect-}
inij the royal executive authority, that the constitution has assigned’
to the king a share in legislation; this purpose is sufficiently!
insured by placing in the crown, the negative power of rejecting)
suggested laws. The royal legislative right is not of the delib-
erative kind ; the crown has no power to propound laws.
Important therefore as this prerogative of rejection is as a shield
against rebellious encroachments, as a preservative of the royal
executive functions, it is in other points of view of a limited and
negative nature.”

\Ve have already (<:) quoted from the commission to Governor Cornwallis, of Nova Scotia, the clause which so .frankly states the same reason for the negative voice given (a) Chitty, ” On the Prerogatives of the Crown,” p. 3. (// See Chap. VI. (c) Ante, p. 33. CAN. CON. 10 146 THE CANADIAN CONSTITUTION. to the early governors. It must be borne in mind, how- ever, that in those days the ” literary theory ” prevailed, which assigned to the legislative and executive departments of government, not only distinct but independent powers. With the growth in England and the colonies, of the prin- ciple of responsible government through the medium of an executive responsible, through parliament, to the elec- torate the negative voice allowed to the governor of a oolony very largely ceased to find utterance in preservation of prerogative, and came to be employed as the up-holderj rather, of the supremacy of the Imperial parliament. And so with reference to the second negative allowed by the common law to the occupant of the throne, over all acts of subordinate legislative bodies throughout the Empire (c/) ; that second negative came to be exercised subject to the “conventions of the constitution” which limit the interfer- ence of the Home government with colonial legislation, to interference in relation to matters of Imperial concern to securing unity of national purpose and method throughout the various parts of a world-wide Empire. In other words, the true federal idea the reconciliation of national unity with local self-government (e) dominates this phase of our relationship to the mother country, just as it now deter- mines the extent to which the British parliament shall legislate, as an Itn^ci’lul parliament, for the colonial por- tions of the Empire. This is the conventional aspect. What is the legal position ‘( In former chapters the paramount legislative authority of the Imperial parliament has been pointed out, and the necessity for a careful distinction between its unlimited/ extent, legally speaking, and its limited operation, ” conven->
tionally ” considered, insisted upon. And, just as we may
have laws enacted for us by an authority entirely external,
so we may have the deliberate utterances of what we

(d) See Chitty, at p. 25 passage quoted a nte, p. 138.

(e) See ante, p. 8.

EXECUTIVE CHECKS ON COLONIAL LEGISLATION. 147

may call the two colonial branches of our Canadian parlia-
ment bills which have passed both Commons and Senate
denied legal operation as Acts of parliament, by the
refusal of Her Majesty’s representative to assent thereto in
(her name.

By express provision of the B. N. A. Act ( /), the Queen
is a constituent branch of the parliament of Canada, and
Her assent is necessary before a bill can become law. Her
representative, the Governor-General of Canada, may refuse
such assent : or he may reserve the bill for the considera-
tion of the Queen in Council (that is to say, of the
Imperial government), and upon such consideration, assent
may be withheld : or, the Governor-General having as-
sented and the bill having passed into Act of parliament,
it may, within two years from its receipt by the Secretary
of State in England, be disallowed, and “such disallow-
ance . . . being signified by the Governor-General
shall annul the Act from and after the day of
such signification.” Now, it matters not what may be the
reasons, assigned or unassigned, for withholding the
Queen’s assent to a bill, or for disallowing an Act of the
Canadian parliament : the effect is, that in the former case,
the bill is as if it never had been : in the latter, it is
repealed by the Imperial government.

To deal with the different phases of this subject, more
in detail, we quote first, section 55 of the B. N. A. Act :

” Where a bill passed by the houses of the parliament is pre-
sented to the Governor-General for the Queen’s assent, he saall
declare according to his discretion, but subject to the provisions
of this Act and to her Majesty’s instructions, either that he
assents thereto in the Queen’s name, or that he withholds the
Queen’s assent, or that he reserves the bill for the signification
of the Queen’s pleasure.”

(f) Sec. 17 ; and see also sec. 2. The Crown is also a constituent
branch of the provincial legislative assemblies see notes to sees. 58 and
69, post.

148 THE CANADIAN CONSTITUTION’.

The exercise by the Governor-General of this discretion-
ary power cannot be legally questioned. Doubt having been
expressed as to the legal efficacy of colonial enactments
when assented to by a Governor, contrary to his instruc-
tions, that doubt was set at rest by the Colonial Laws
Validity Act, 1865, the fourth section of which enacts :

“No colonial law, passed with the concurrence of or as-
sented to by the governor of any colony, or to be hereafter so
passed or assented to, shall be, or be deemed to have been, void
or inoperative by reason only of any instructions with reference
to such law, or the subject thereof, which may have been given
to such governor by or on behalf of Her Majesty, by any instru-
ment other than the letters patent or instrument authorizing
such Governor to concur in passing, or to assent to laws for
the peace, order, and good government of such colony, even
though such instructions may be referred to in such letters
patent, or last mentioned instrument.”

S \ therefore, while the assent of the Governor-General
in the Queen’s name, or in the case of a reserved bill
his signification of the Queen’s assent, is absolutely essen-
tial to the validity of all Acts of the parliament of Canada,
that assent once given to any Act, such Act (if within the
legislative competence of parliament) becomes law, subject
only to the power of disallowance by the QH^emin Council.

This power is recognized, and the mode of its exercise
defined by the 5(>th section of the B. N. A. Act:

” Where the Governor-General assents to a bill in the
Queen’s name, he shall, by the first convenient opportunity,
send an authentic copy of the Act to one of Her Majesty’s
Principal Secretaries of State, and if the Queen in Council,
within two years after receipt thereof by the Secretary of State,
thinks fit to disallow the Act, such disallowance (with a certifi-
cate of the Secretary of State of the day on which the Act 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.”

EXECUTIVE CHECKS ON COLONIAL LEGISLATION. 149

In this section it is material to note the limitation of the
time within which the disallowance must take place. At
common law, no such time limit existed, and this is one of
those instances (to which reference was made in the last
chapter) of the conversion of a common law prerogative
into a statutory power. The tw r o years being allowed to
pass, without such disallowance by order in council for
that is the method prescribed the executive department
of the Imperial government can no longer interfere with
the operation of the Act ; nothing short of ” repugnant ”
Imperial legislation can weaken its validity.

The Governor-General, however, as has been noticed,
may, in the case of any bill presented to him, exercise his
discretion,- by neither giving nor withholding the assent of
the Crown thereto ; a third course is expressly allowed |
him ; namely, to reserve the bill for the signification of the
Queen’s pleasure (g) ; and by section 57 of the B. N. A.
Act, it is enacted :

” A bill reserved for the signification of the Queen’s pleasure
shall not have any force lllllnrn iurl until within two years from
the day on which it was presented to the Governor- General for
the Queen’s assent, the Governor-General signifies by speech
or message to each of the houses of the parliament, or by
proclamation, that it has received the assent of the Queen in
council . . . .”

As we are now dealing with questions which arise out
of our colonial relation to Great Britain, it is perhaps better
to defer consideration of the power of the Lieutenant-
Governor of a province, to withhold the Queen’s assent
from bills passed by the legislative assembly of his province,
and of the power of the Governor-General (in Council) to
disallow Acts of the provincial legislative assemblies, until
we come to discuss the Canadian constitution in its internal
aspect (ti).

(g) Sec. 55.

(h) See next chapter, where will also be found some further observa-
tions on the ” conventional ” limits set to the exercise of the Imperial
power of disallowance.

CHAPTER VITI.

THE CONNECTING LINK THE GOVERNOR-
GENERAL ().

In popular phraseology, the Governor-General is the
” Queen’s representative ” in Canada, and in the popular
mind there is an idea, vague no doubt, but still deeply
ingrained, that he is clothed with large and vice-regal
attributes, standing to us in much the same position as her
Majesty occupies towards her subjects within the borders
of the United Kingdom. But to the constitutional lawyei^
learned in the Dryasdust precedents (as Carlylean laymen
would doubtless term them) which define the legal position
of a Colonial Governor, he appears in the light of an officer
clothed with an authority strictly limited (6), whose every
act as governor must be legally justified (<) by the terms of
her Majesty’s commission appointing him to fill the office,
and whose capacity as representative is not general, but

(a) See Broom., ” Const. Law,” p. 022, et seq. ; Forsyth, p. 84 ct seq. ;
Todd, ” Parl. Gov. in Brit. Col.” It would appear that Mr. Todd’s work
was written in order to inculcate a proper appreciation of the importance
of the office ; see p. 584 of his book. See also Art. in Law Mag. for
Nov., 1861 (Vol. 12), at p. I8’2,etseq., quoting with approval the language
of ” a very able colonial lawyer ” A. Stuart, advocate, Montreal in a
work published in 1832, ” On the functions and duties of the governor of
a British province.”

(b) Cameron v. Kyte, 3 Knapp, P. C. 332; Hill v. Bigge, 3 Moo. P C.
465 ; Musgrave v. Pulido, L. R. 5 App. Cas. 102.

(<) Oliver v. Bentinck, 3 Taunt. 460; Raphael v. Verelst 2 W. Black.
1050: and cases in last note.

THE GOVERNOR-GENERAL. 151

special, in principle not more general, and not less special,)
than that of the most unlettered Dogberry on the magis-
terial bench of a back township (</), the powers, authorities^
and functions of each appearing in, and being limited by,\
the terms of their respective commissions.

A word of caution should perhaps be written at this
stage of our inquiry. In order that the reader may not be
led to underrate the importance, from a political stand-
point -of a governor’s position, and the varied and respon-
sible duties which are put upon him by her Majesty’s com-
mission (c), it may be again observed that we are now
looking at his position from the standpoint of the lawyer*
ifnd not that of the statesman. In some respects it may
indeed be said that the law recognizes as legally effective,
various acts of a governor, which constitutional usage
would emphatically condemn, and the doing of which would
afford ample ground for his recall ; while on the other hand,
a governor may by one and the same act incur civil or even
criminal liability, and win the approbation of his Imperial*
superiors. We cannot too rigorously insist on the distinc-\
tion frequently pointed out in the foregoing pages, between
the leynl and the conventional, under the British system of
government. We shall have occasion to refer more at
length hereafter, to the limits within which the legal powers
of a governor should find scope for ” conventional ” exercise ;
but, as was pointed out in reference to the exercise by the
Imperial parliament of its legal power to enact laws for a
colony, a proper recognition of the legal position will greatly
tend to strengthen colonial statesmen in their insistence
upon the ” conventional ” limits being accurately defined
and observed.

(<l) Finlayson, ” Review of ths Authorities as to Repression of Riot,” 110. Compare with this the language of Taschereau, J. (in reference to the position of a Lieut. -Governor) The Queen v. Bank of Nova Scotia, 11 S. C. R. at p. 24. (>} That commission refers to the B. N. A. Act, under which (see sec.
10) he is described as an executive officer ” carrying on the government
of Canada.”

152 THE CANADIAN CONSTITUTION.

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 (g) so these early
colonial governors, claiming a delegated sovereignty,
attributed to themselves a corresponding sacredness of
person, and an equal immunity from the jurisdiction of
courts of justice. It is a very interesting study to trace
the course of the decisions by which the attributes with
which they had in fancy clothed themselves, were one by
one stripped from them, until now their position, as legally
recognized, is as above stated. It would appear from the
earlier authorities, that the pretentious of the early gover-
nors to the immunities of a delegated sovereignty, were
not paraded out of the territorial limits of their colonial
government, and when proceeded against in England, they
defended themselves by pleas in bar, and not in abatement
by defences on the merits, justifying their acts under their
commissions, and not denying the jurisdiction of the Eng-
lish courts to entertain suits brought against them (7t).
And, when, in 1773, Governor Mostyn did allege, as a
plea to the jurisdiction of an English court, that the
acts complained of in the action, were done by him as

(/) See preamble to 11 & 12 Wm. III. c. 12, cited post.

(g) Steph. Comm. Vol. II. 498; Chitty, ” Prerog. of the Crown,” 374.

(h) In Fabrigas v. Mostyn, 1 Sm. Ldg. Cas. (8th. ed.) 652, Lord Mans-
field cites three instances of actions brought in England against governors-
in respect of acts done in the Colony, during their term of office, in none
of which, so far as appears, was there any plea to the jurisdiction
Lord Bellamont’s case, 2 Salk. 625 ; Comyn v. Sabine (not elsewhere
reported) ; and a third case mentioned by Powell, J., in Way v. Yally,.
6 Mod. 194.

THE GOVERNOR-GENERAL. 153

Governor of Minorca, Lord Mansfield thus disposes of the
plea (i) :

” The two grounds which are enforced to-day, are, if I take
them right, first, that the defendant was governor of Minorca,
and therefore for no injury whatsoever that is done by him,
right or wrong, can any evidence be heard, and that no action
can lie against him; secondly, that the injury was done out of
the realm. I think these are the whole amount of the questions
that have been laid before the court. Now as to the first, there
is nothing so clear as that, in an action of tills kind, which is for
an assault and false imprisonment, the defendant, if he has any
justification, must plead it; and there is nothing more clear than
that if the court has not a general jurisdiction of the matter, he
must plead to that jurisdiction, and he cannot take advantage of
it upon the general issue.

” The point that I shall begin with, is the sacredness of the
person of the Governor. Why, if that was true, and if the law
was so, he must plead it. This is an action of false imprison-
ment ; prima facie, the court has jurisdiction. If he was guilty
of the fact, he must show a special matter that he did this by a
proper authority. What is his proper authority ? The King’s
commission to make him governor. Why, then, he certainly
must plead it ; but, however, I will not rest the answer upon
that. It has been singled out that in a colony that is beyond
the seas, but part of the dominions of the Crown of England,
though actions would lie for injuries committed by other persons,
yet it shall not lie against the governor. Now I say for many
reasons, if it did not lie against any other man, it shall most
emphatically lie against the governor. In every plea to tha
jurisdiction, you must state a jurisdiction ; for if there is no
other method of trial, that alone will give the King’s Courts
jurisdiction. Now in this case no other jurisdiction is shown,
even by way of argument ; and it is most certain that if the
King’s courts cannot hold plea in such a case, there is no other
court upon earth that can do it ; for it is truly said that a gover-

(/) Fabrigas v. Mostyn, Covvp. 161. It will be noticed that the C.J.
animadverts upon the indefinite nature of the plea in this case, but
treats it as a plea to the jurisdiction.

154 THE CANADIAN r< JNSTnVTlON.

nor is in the nature of a Viceroy (j), and of necessity part of the
privileges of the King are communicated to him during the time
of his government. No criminal prosecution lies against him,
and no civil action will lie against him, because what would the
consequence be ? Why, if a civil action lies against him, and a
judgment is obtained for damages, he might be taken up and
put in prison on a ra/^/x. And therefore locally during the
time of his government, the courts in the island cannot hold
plea against him. If he is out of the government, he leaves it ;
he comes and lives in England, and he has no effects there to
be attached; then there is no remedy whatsoever if it is not in

the King’s Courts There may be some cases arising

abroad, which may not be fit to be tried here, but that cannot
be the case of a governor injuring a man contrary to the duty of
his office, and in violation of the trust reposed in him by the
King’s commission. And therefore in every light in which I see
tins matter, it holds emphatically in the case of a governor if it
province, or garrison. But to make question upon matters of
settled law, where there have been a number of actions
determined which it never entered into man’s head to dispute
to lay down in an English court of justice such monstrous pro-
positions as that a governor acting by virtue of letters patent,
under the Great Seal, can do what he pleases ; that he is account-
able only to God and his own conscience, and to maintain here
that every governor in every place, can act absolutely ; that he
may spoil, plunder, affect their bodies and their liberty, and is
accountable to nobody is a doctrine not to be maintained. . . .
How can the argument be supported that in an Empire so
extended as this, every governor in every colony, and every,
province belonging to the Crown of Great Britain, shall be
absolutely despotic, and can no more be called in question than
the King of France ? And this after there have been multitudes
of actions in all our memories against governors, and nobody
lias b ‘en ingenious enough to whisper them that they were not
amenable.”

From that day to the present, no plea f<> the jurlsdict’wn
1ms .’ver a^ain been raised to an action brought in England,

I./) This proposition is untenable ; see ;>*/.

THE GOVERNOR-GENERAL. 155

MTU! many governors have been mulcted in damages by
English juries, for acts done within the limits of their
colonial governments (/<;).

It will be noticed however that in his celebrated judg-
ment in Fabrigas v. Mostyn, Lord Mansfield lent the weight
of his high authority to certain propositions, which if
correct, would on the one hand largely increase the powers,
and on the other hand largely lessen the liability of a
governor both propositions however being really depen-
dant upon the first. Adopting the proposition that a
Governor is a ” Viceroy ” with. certain me<i*wre of dele- gated sovereignty, he draws from it the further proposition (not necessary for the decision of the case) (I), that he is not amenable, civilly or criminally, to the courts of the j colony over which he presides, during the term of his \ government. Practically considered, the position of parties having claims upon the governor, would in this view be one of much hardship, and in many cases would work a complete denial of justice. So no doubt Lord Aylmer’s house-keeper thought, when the Court of King’s Bench in Lower Canada, adopting Lord Mansfield’s dictum, declined to entertain her action for wages due from His Excellency (m). It is now however clearly settled that a governor- is . j liable to civil action in the courts of the colony over which \ he presides, not merely (1) in respect of claims upon con- tracts entered into, and torts committed by him in his (fc) Wall v. MacNamara, 1 T. R. 536; Wilkins v. Despard, 5 T. R. 112 ; Glynn v. Houston, 2 M. & G. 337 ; Oliver v. Bentinck, 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 coir f erred military authority, and the first three cases were in respect of military excesses, but the principle of the cases is throughout the same. See too Phillips v. Eyre, L. R. 4 Q. B. 225 ; 6 Q. B. 1. (/) See Hill v. Bigge, 3 Moo. P. C. 405. (m) Harvey v. Lord Ayhner, 1 Stuart 542. 15() THE CANADIAN CONSTITUTION. private capacity, but also (2) in respect of any claim against him for acts done in the supposed exercise of his powers as governor. Of the former class, we may instance the case of the Governor of Trinidad, who was informed by the Judicial Committee of her Majesty’s Privy Council (on appeal from the colonial court) that he must submit t;> the
indignity of defending an action brought in the court of his
own colony by certain vindictive jewellers whose bill he
had omitted to pay before leaving England (/?). Since
that time the proposition may be considered settled, that
for a cause of action wholly unconnected \vith his official
capacity, the governor of a colony may be sued in the
courts of that colony.

” They who maintain the exemption of any person from t lie-
law by which all the King’s subjects are bound, or what is the
same thing, from the jurisdiction of the courts which administer
that law to all besides, are bound to show some reason or author-
ity leaving no doubt upon the point. The reference to analogies,
or the supposition of inconvenient consequences, must be much
more pregnant than any that can be urged in this case, to sup-
port or even to countenance such a claim. If it be said that the
governor of a colony is quasi sovereign, the answer is that he
does not even represent the sovereign generally, having only
the functions delegated to him by the terms of his commission,,
and being only the officer to execute the specific powers with
which that commission clothes him.” Per Lord Brougham in
Hill v. Bigge.

And speaking of FaJ^rigas v. Mostyn, Lord Brougham
says :

“It is only a decision that he was liable to be sued in
England for personal wrongs done by him, while Governor of
Minorca. Nor does the decision thus given, rest upon any doc-
trine denying his liability to be sued in the island. There is no
doubt a dictum of Lord Mansfield’s in giving the judgment
‘ that the governor is in the nature of a viceroy, and that there-
fore locally during his government, no civil or criminal action

(n) Hill v. Bigge, 3 Moo. P. C. 465.

THE GOVERNOR-GENERAL. 157

will lie against him.’ And the reason and the only reason given
for this position is, because upon process he would be subject to
imprisonment. With the most profound respect for the author-
ity of that illustrious judge, it must be observed that as has been
shown, the governor being liable to process during his govern-
ment would not of any necessity follow’ from his being liable to
action, and that the same argument might be used to show that an
action lies not against persons enjoying undoubted freedom from
arrest by reason of privilege. But the decision in the case does
not rest on this dictum. . . . The consequences imagined
to follow from holding the governors liable to action like their
fellow -subjects, are incorrectly stated, and if true would not
decide the question/’

Since the decision in Hill v. Bigge, the notion that the
.governor of a colony is in the nature of a viceroy, may be
considered as forever exploded. The extent of a gover-
nor’s powers had previously been passed upon in the case of
Cameron v. Kyte (o), to which, it is true, the governor was
not a party, but the governor’s order in council being set
up as a defence to the action, its validity was properly as
the Judicial Committee of the Privy Council held
inquired into by the courts of the colony. In giving
judgment, Parke, B., says :

” If a governor had by virtue of that appointment, the whole
sovereignty of the colony delegated to him as a viceroy, and
represented the king in the government of that colony, there
would be good reason to contend that an act of sovereignty done
by him would be valid and obligatory upon the subject living
within his government, provided the act would be valid if done
by the sovereign himself, though such act might not be in con-
formity with the instructions which the governor had received
for the regulation of diis own conduct. The breach of those
instructions might well be contended on this supposition to be
matter resting between the sovereign and his deputy, rendering
the latter liable to censure or punishment, but not affecting the
validity of the act done. But if the governor be an officer
merely with a limited authority from the crown, his assumption

(o) 3 Knapp. P. C. 332.

158 THE CANADIAN CONSTITUTION.

of an act of sovereign power, out of the limits of the power so
given to him, would be finally void, and the courts of the colony
orer irhich he presided could not (/ire it any leyal effect. We think
the office of governor is of the latter description, for no authority
or dictum has been cited before us to show that a governor can
be considered as having the delegation of the whole royal power
in any colony, as between him and the subject, when it is not
expressly given him by his commission. And we are not aware
that any commission to colonial governors conveys such an
extensive authority.”

Finally so far as concerns civil liability the question
of a governor’s amenability to the courts of his colony in
rex/H’ct of poiverx at* governor, came before the Judicial Committee of
the Privy Council, on an appeal (//) from the colonial court
in which the action had been brought ; and in the judg-
ment of the Committee, the authorities are reviewed and a
clear decision reached, that the colonial courts have as
complete jurisdiction to entertain an action against a
governor as against any other inhabitant of the colony.
After reviewing the previous authorities, the judgment of
the Committee proceeds as follows :

” It is apparent from these authorities that the governor of a
colony (in ordinary cases) cannot be regarded as a Viceroy ; nor
can it be assumed that he possesses general sovereign power.
His authority is derived from his commission, and limited to
the powers thereby expressly or impliedly entrusted to him.
Let it be granted that for acts of power done by a governor
under and within the limits of his commission he is protected,
because in doing them he is the servant of the crown, and is
exercising its sovereign authority ; the like protection cannot be
extended to acts which are wholly beyond the authority confided
to him. Such acts, though the governor may assume to do
them as governor, cannot be considered as done on behalf of the
crown, nor to be in any sense, proper acts of state. When
questions of this kind arise, it must necessarily be within the
province of municipal courts to determine the true character of

(p) Musgrave v. Pnlido, L. R. 5 App. Gas. 102.

THE GOVERNOR-GENERAL.

15ft

the acts done by a governor, though it may be that when it is
established that the particular act in question is really an act of
state policy done under the authority of the crown, the defence
is complete, and the courts can take no further cognizance of it.”
From these authorities, therefore, we may draw the
following conclusions :

1. The powers, authorities and functions of colonial
governors are such, and such only; as are contained
expressly or impliedly in the commission under which
the office is held by him (q ) : for any act done qua
governor and within his authority as such, he incurs no
liability, either ex cotttnictu (r) or in tort (*).

2. For any act done in his private capacity, or done
qua governor, but beyond his powers as such, a colonial
governor is amenable to the civil jurisdiction of Her
Majesty’s courts, to the. same extent as any other indivi-
dual : and no distinction can be drawn between the courts
in England and the colonial courts in respect to their juris-
diction to entertain an action against a governor (t).

3. To any action brought against him, he cannot plead
a plea of personal privilege of immunity from being im-
pleaded except as part of the larger plea that the acts
complained of were done qua governor and as ” acts of
State,” in which case the only remedy of the party
aggrieved is by petition of right against the crown (?<). 4. A governor must plead specially his justification : in other words, when a governor justifies any act as being- within the powers vested in him by his commission, he (q) Cameron v. Kyte, Hill v. Bigge, Musgrave v. Pulido, ubi supra. (r) Macbeath v. Haldimand, 1 T. R. 172 unless, indeed, he pledges his personal credit. () Reg. v. Eyre, L. R. 8 Q. B. 487, and the charge of Blackburn, J., in the same case, reported by Finlayson’sM&. tit., ” The proceedings in the Jamaica case” ; Comyn v. Sabine, cited by Lord Mansfield in Fabri- gas v. Mostyn, Cowp. 161. (t) Hill v. Bigge, Musgrave v. Pulido, ubi supra. (u) Musgrave v. Pulido, supra. 1GO THE CANADIAN CONSTITUTION. 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 (v). We have hitherto considered the position of a governor in respect to his liability to civil action ; how stands the law as to his criminal liability for crimes committed by him while governor ? Lord Mansfield’s dictum, it will be seen, lays down his immunity from criminal prosecution as well as from civil suit in the courts of the colony, but the very same course of reasoning which resulted in the decis- ions in Hill v. Bigge, and Musgrave v. Pulido, would seem equally to lead to the conclusion that a governor is amen- able criminally to the courts of the colony, for crimes com- mitted in the colony, whether such crimes are connected I with his official position or entirely aside from it. Let us consider ihis question a little more fully. The preamble to the statute 11 & 12 Will. III. c. 12 “An Act to punish governors of plantations, in this Kingdom^ for crimes by them committed in the plantations” charac- terizes the governors of those days as ” not deeming them- selves punishable for the same here (w), nor accountable for such their crimes and offences to any person within their respective governments ” ; for remedy whereof, pro- vision was made by the statute for the trial of any offend- ing governors in Kmjluinl. This statute was extended so as to apply to other persons holding colonial appointments, by 42 (Jeo. III. c. 85, and both statutes are to-day in force. How far do they apply >. And do they, so far as they do
apply, negative the jurisdiction of the colonial courts ‘.
Apart from these statutes, and adopting the doctrine of
Hill v. Bigge, and Musgrave v. Pulido, the’ jurisdiction of
the colonial courts would seem beyond question, and it is
submitted that these, statutes are, so far as the}’ do apply,

(v) Oliver v. Bentinck, 3 Taunt. 400 ; and ca’ies cited xupra, p. 150.
(>r) Crimes being local, and triable and punishable locally. See post,
Chap. IX.

THE GOVERNOR-GENERAL. 161

cumulative and not exclusive. Owing to the rigid rules of
the common law as to venue in criminal prosecutions, it
required statutes to render legal the trial in one county of
an offence committed in another; a fortiori, the trial in
England of offences committed on or beyond seas (x). An
early statute, 33 Henry VIII. c. 23, provided for the
appointment of a special commission for the trial of
persons charged w r ith murder on or beyond the seas, and it
was under this statute that Governor Wall was tried, con-
demned, and executed (y). A governor, therefore, once
departed from his colony would be entirely free from
danger, unless, indeed, he could be sent back to stand his
trial. The more practical remedy, however, would seem to
have been adopted, and under the statute of William III.,
the objection in respect to venue was taken away. The
preamble, moreover, speaks of the governors as ” deeming
themselves not accountable ” to the colonial courts, and the
statute is in no sense declaratory that such is the law. So
we conclude that even in those cases in which, undexjihis_.
statute, a governor may be tried in England for offences
committed in the colony, he is equally amenable to the
courts of the colony.

But these statutes have been held not to apply to
felonies, and only to misconduct in office. Ellenborough,
C. J., thus characterizes (z) the later statute :

“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 the criminal and fraudulent acts committed 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 commission of felonies. . .
‘The reason of the thing, a priori, would lead us to conclude that

(x) See note to Keighley v. Bell, 4 F. & F. at p. 490, zndpost, Chap. IX.
(y) Reg. v. Wall, 28 St. Ir. 51 ; see Broom, ” Const. Law,” 652.
,(.?) Reg. v. Shaw, 5 M. & S. 403, the only reported authority on it.
CAN. CON. 11

162 THE CANADIAN CONSTITUTION.

the jurisdiction as to trial of felonies should be restrained to tin-
local courts.”

Although the prisoner in that case was not a governor
but a subordinate officer in the civil service, the reasoning
would (in the light of the decisions as to a governor’s civil
1 liability) seem to lead to a clear conclusion that /the juris-
diction of the courts of a colony to try a governor for
/ felonies committed within the colony, or misdemeanors-
i unconnected with his office, there committed, is beyond
\ question. And for the reasons before given, it is submitted
that there is like jurisdiction in respect of offences falling
within the statute of William III.

It is beyond the province of this work to discuss the
question, what is necessary to affix criminal character to
acts of a governor done in the supposed exercise of his
powers. We are merely interested .in showing that the
same criminal and civil liability exists in the case of a
governor as in the case of any other officer of the crown
acting under a limited authority, leaving the student who
desires 1 to pursue this subject further to consult writers
who deal with this larger subject (</).

Having now pointed out that for the powers and duties *
of a colonial governor, we must look to the terms of his \
commission, we must follow the course indicated, and for
the powers and duties of the Governor-General of Canada,
look to the terms of the commission under which that
office is held. We shall hereafter have to point out certain
changes which have from time to time been made in the
terms of the commission, but for our present purpose an
inquiry into the legal powers, as now existing, of the
Governor-General it w T ill suffice to say that in 1S7N.

as ;i rule (tlie exceptions to which must also be ad verted to
hereafter) the powers conferred by Canadian enactment
require the concurrence of the Queen’s Privy Council for
Canada, in order to their effective exercise, or in other
words can only be legally exercised by Order in Council
j In considering these same powers from a “conventional”
I standpoint, an entirely different principle of division must
j be adopted, if indeed there is any division so far as regards
their “conventional ” exercise. Following then the line of
division adopted, as likely to afford assistance in arriving
at a correct view of the Governor-General’s powers from
the standpoint of the legal efficacy of their exercise we
proceed to discuss shortly, the prerogative rights and
powers with which the Governor-General is entrusted by
duvet Imperial authority.

We have already discussed the question of the extent
to which the Crown’s prerogative rights are exercisible in
the colonial possessions of the Empire, but we may here
again observe that those rights are in every portion of the
Empire to be exercised according to law, that by express
words or necessary intendinent, an Act of the Imperial par-
liament may either entirely take away from the Crown
(>>., the executive) a prerogative right theretofore exercise-
able by and under the common law without the concurrence
of parliament, or may fetter its exercise with any terms or
conditions which parliament may deem necessary in the
public interest, and that a ” confirmed ” Act of a colonial
legislature is equally effective to those ends so far as con-
cerns the exercise of the prerogative right in the colony (r).
It will be noticed that the language employed in the Letters
Patent, constituting the office of Governor-General, recog-
nizes the existence of legal limits to the exercise (even by
the sovereign in person ) of the prerogative rights therein
mentioned. With this perhaps unnecessary caution we
proceed to enumerate the prerogatives of the Crown, the

(<;) See Chap. VI., nntc^ p. 13!) , ct xeq.

THE GOVERNOR-GENERAL. 165

power to exercise which in Canada is by direct Imperial
authority entrusted to the Governor-General.

I. BY THE LETTERS PATENT, constituting the office of
Governor-General, he is authorized and empowered :

(a) “III To constitute and appoint in our name,

and on our behalf, all such judges, commissioners, justices of
the peace, and other necessary officers and ministers of our said
Dominion, as may be lawfully constituted or appointed by us.

“IV So far as ice lawfully m-ay, upon suffi-
cient cause to him appearing, to remove from his office or to
suspend from the exercise of the same, any person exercising

any office ”

The exercise of the prerogative right of the Crown
(as the fountain of justice) in the appointment to and
removal from office in Canada, is now with the exception
of this one office of Governor-General entirely regulated
by statutes (<7), Imperial and Colonial, so that it will be
necessary to relegate to a future stage the consideration of
this branch of a governor’s general powers.

(b) “V To exercise all powers, lawfully Ix.’hmmny

to ux, in respect of the summoning, proroguing or dissolving of
the parliament of our said Dominion.”

Of these powers in relation to the parliament of Canada,
it may be observed that the exercise of the power of sarti-
niou’ni’j has been the subject of legislative regulation (e) ;
the other two of proroguing and dissolving exist as at
common law. The ” conventional ” limitations are many,
ithe legal right is absolute. For whatever reason, or with
whatever want of reason, parliament is prorogued or dis-
solved, such prorogation or dissolution puts an end to the
session, or the parliament, as the case may be ; and the
assembling of the members without new summons would

(d) See the opinion of Sir James Scarlett (Lord Abinger) and Sir
N. C. Tindal (C.J., C.P.), on the power of the Crown to create the office
of Master of the Rolls in Canada (1827) Forsyth, 172.

‘.e) B. N. A. Act, 1867, ss. 20 and 38.

16() THE CANADIAN CONSTITUTION.

be but as the gathering of a mob, and their Acts but as
waste paper.

II. BY HIS “INSTRUCTIONS” (/).

We need only draw attention to the 5th clause, making
provision as to the exercise of the prerogative of pardon.
The Governor-General is debarred from exercising this pre-
rogative without first receiving the advice, in capital cases,
of the Privy Council for Canada ; in other cases, of one at
least of his ministers ; except in cases where the interests
of the Empire, or of some country other than Canada might
be directly affected ; in which exceptional cases, the Gover-
nor-General shall “take those interests specially into his
own personal consideration, in conjunction with such advice
as aforesaid.” In other words, in those exceptional cases,
he may disregard the advice offered (f/}\ in all other cases
he must follow it.

III. BY THE B. K A. ACT, 1867. the Governor-General
is entrusted with the following prerogatives, and the man-
ner of their exercise is to some extent defined.

A. Appointments to office.

The vast majority of offices in connection with the
government of Canada are filled by persons appointed,
under statutory authority, by the Governor-General in
Council; but there are still a few offices to which the
Governor may legally make appointments without, or even
contrary to, the advice of the Queen’s Privy Council for
Canada, although, of course, the making of such appoint-
ments in cf<> ijtx’niN -mufti, would be a flagrant breach of
” conventional ” usage, a complete subversion of the right
of local self-government, long since fully accorded to Can-
ada. To give anything like a full enumeration of the

(/) i.e., the general “instructions” which accompany the Letters
Patent ; see appendix.

(//) That is to say, he acts in such case as an Imperial officer, and is
supposed to act upon Imperial considerations.

THE GOVERNOR-GENERAL. 167

former class of offices would necessitate a survey of the
entire Civil Service of Canada. But confining our atten-
tion to the B. N. A. Act, the only officer therein mentioned
in whose appointment the Governor-General and the Privy
Council must concur is the Lieutenant-Governor of a Pro-
vince. Of his position when appointed much must be here-
after said (k), but as to the appointment itself it suffices
now to say that it must be made by Order in Council (i).
Of the few officers whose appointment, under the B. N.

A. Act, is in the hands of the Governor-General personally,
the following is a complete list :

1. Members of the Queen’s Privy Council for Canada.

B. N. A. Act, s. 11. In various Acts of the parliament of
Canada, provisions are contained as to the appointment of
the ministers (or other officers) who shall preside over the
various departments of state (j) ; but in all, the appoint-
ment is left in the hands of the Governor-General person-
ally. This is ex necessitate, in the case of a change in the
entire administration, but the position is the same in every
case the appointment is, legally considered, the act of the
Governor-General alone. But there may be, and usually

are, members of the Privy Council who hold no portfolio,

(h) See notes to sec. 58, B. N. A. Act, post.

(/) See K. S. C. (1886) c. 19, as to the use of the Great Seal of Canada
in the appointment to certain offices.

(j) Minister of Justice E. S. C. c. 21, s. 1.

” the Interior ” c. 22, s. 1.

Agriculture ” c. 24, s. 1.

” Marine and Fisheries ” c. 25, s. 1.

Secretary of State ” c. 26, s. 1.

Minister of Finance ” c. 28, s. 2.

Auditor General ” c. 29, s. 21.

Minister of Customs . ” c. 32, s. 3.

” Inland Revenue ” c. 34, s. 2.

Post-Master General ” c. 35, s. 5.

Minister of Railways and Canals ” c. 37, s. 2.

Public Works ” c. 36, s. 3.

” Militia and Defence ” c. 41, s. 4.

168 THE CANADIAN CONSTITUTION.

and it may be said, therefore, that the power of appointing
members of the Privy Council, simply as such, is fettered
by no statutory limitations.

2. Senators. B. N. A. Act, s. 24.

3. Speaker of the Senate. B. N. A. Act, s. 34.

4. Judges. As enumerated in B. N. A. Act, s. 96.

5. Deputy Governor-General. B. N. A. Act, s: 14, and
Letters Patent, clause VI.

B. The summoning of parliament.

Reference has already (k) been made to the clause in
the Letters Patent constituting the office of Governor-
General of Canada, by which the person filling that office
is empowered to exercise the prerogatives of the Crown in
reference to the summoning, proroguing, and dissolving of
parliament; and it has been pointed out that the only
statutory regulation &s to the exercise of this prerogative
is in reference to the summoning of parliament. Treating
the parliament of Canada as one body, the B. N. A. Act
provides (I) :

” There shall be a session of the parliament of Canada onqe’ **
at least in every year, so that twelve months shall not intervene –
between the last sitting of the parliament in one session, and its
first sitting in the next session.”

and there can be no doubt that a Governor-General who
should disregard this imperative provision, even upon the
advice of her Majesty’s Privy Council for Canada i.e., his
Ministers would be guilty of a plain violation of his
duty ; and if it can be imagined that legal damage could
be suffered by any individual by reason of such violation of
duty, such individual would have a right of action in
respect of such damage, in accordance with the principles
heretofore laid down (m). The similar provision (??.}
necessitating annual sessions of the legislative assemblies

(k) Ante, p. 165. (0 Sec. 20.

(m) Ante, p. 158, et seq. (n) B. N. A. Act, sec. 83.

THE GOVERNOR-GENERAL. 160

of the provinces of Ontario and Quebec, has, as we write,
been disregarded by the Lieutenant-Governor of the latter
province, but the bitterness there of contending factions is
such that it is hardly possible to discuss this matter
further now, without appearing to advocate a party’s
cause.

Treating now the parliament of Canada as composed of
three branches the Crown, the Senate, and the House of
Commons (o) attention must be drawn to the difference
in the duration of the life of the respective branches.
The Crown and the Senate are immortal branches, while
the House of Commons might be more aptly termed the
foliage of parliament, appearing and disappearing, some-
times in quick revolving seasons (as in the Antipodean
Colonies), but, at the longest, in quinquennial recur-
rences (p). The analogy holds even more fully, for as a ^ ^^ ‘

tree grows and does effective work only when clothed with
foliage, so parliament requires for the effective exercise oI
its functions the magic call of gubernatorial spring, sum-

oning the murmuring leaves of the Commons into
lative being}!!! 4 – *V* …… – ^~-~

if^-^r
!

…… –

Analogies aside, the result of this marked distinction in
the constitution* of the various branches of parliament is
apparent in the B. N. A. Act, in the absence of any provi-
sion for the calling together of the members of the Senate,
while it is expressly enacted :

” 38. The Governor-General shall from time to time in the
Queen’s name, by instrument under the Great Seal of Canada,
summon and call together the House of Commons.”

This section however would seem to carry the governor’s
powers no further than the Letters Patent alone would
have carried them, and therefore, as said by Dr. Bourinot :
“The summoning, prorogation, and dissolution of parlia- /
ment in Canada, are governed by English constitutional!
usage. Parliament can only be legally summoned by!

(o) B. N. A. Act, sec. 17. (p) B. N. A. Act sec. 50.

170 THE CANADIAN CONSTITUTION.

authority of the Crown.” After the expiry of the House
of Commons by lapse of time or dissolution, there must be
a new House elected by the people according to law, before
there can be an effective exercise of the prerogative right
to sum moil parliament ; and we may here note that in con-
nection with such election certain powers are vested in the
Governor-General and certain duties imposed upon him by
Canadian legislation, in the exercise of which he, in con-
templation of law, acts personally. Upon him devolves
the duty of fixing the date for the holding of such election
the rule is the same as to bye-elections and by him the
returning officer for each electoral district is appointed (q).
This however by the way. The House of Commons being
so elected, parliament can meet together for the despatch of
business only upon the summons of the Governor-General.
It is worthy of note that this word, ” xummon” is used in
the B. N. A. Act, in reference to the appointment of sen-
ators (r), and that, as has been said, there is no legislative
regulation of the method by which the Senate is called
together for the despatch of business : while in relation to
the House of Commons *the word is used to indicate the
annual calling together of the elected members of the
House for the exercise of their functions. As a matter of
usage (in conformity with the English practice) the instru-
ment by which the Governor-General summons the House
of Commons, viz., a proclamation under the Great Seal, is
addressed to both senators, and members of the House of
Commons.

C. Tin 1 exercise <>f tli.c />/Y’/V^//MV / /’/////* of tJic (Jrown
</x co’itNtifH-ciit l-

This matter has been fully dealt with in the last chap-
ter, and we need not therefore dwell further upon it hem

ft) R. S. C. c. 8, s. 3. (r) s. 24.

THE GOVERNOR-GENERAL. 171

D. The disallowance of Provincial Acts*

/

No prerogative right of the Crown is more firmly estab- 1
lished than the right to supervise the legislative enactments
of all minor legislative bodies the right is indeed but the^j.
logical result of the rule that the Crown is a constituent j

o

part of every legislative body throughout the Empire (s). ‘
Even should a Governor ” thereunto lawfully authorized’^
assent in the Queen’s name to an Act of a colonial legisla-,
ture, there is by the common law of England a reserved/
power in the Crown to repudiate the action of the Crown’s/
officer in the colony and to disallow such Act. In the case
of Canada, the exercise of this prerogative must, to be
legally effective, take place within two years after th
receipt of the Act by the Secretary of State for the
colonies (#); but the right once exercised in the method
pointed out by the statute, and such exercise being duly
” signified ” here, the Act, so disallowed, is absolutely an-
nulled “from and after the day of such signification.” It
is to be noticed, however, that this power of disallowance
cannot be legally exercised by the Queen personally, but
only by and with the advice of her Privy Council*

With regard, however, to Acts of the legislative assenW
blies of the different provinces of the Dominion, the right*
to exercise this prerogative has been taken away from the’
Queen in Council, and is by the B. N. A. Act (u) conferred <
on the Governor in Council a matter frequently adverted
to, as indicating the very extended rights of self-govern-
ment accorded to Canada. Much must be said hereafter
with reference to this power, and the proper “conventional”
limits within which it should be exercised ; but viewing it
from the standpoint of the legal efficacy of its exercise, it
would appear clear that, the Governor-General and the\

(s) Chitty, p. 25 ; see. Chap. VI. ante, p. 138 ; Theberge v. Landry,
2 App. Gas. 102 ; see notes to s. 69 B. N. A. Act, post,
(t) B. N. A. Act, s. 56.
(u) Sec. 90, read in connection with ss. 55, 56, and 57.

172 THE CANADIAN CONSTITUTION.

Privy Council concurring in such disallowance and exer-
cising their power in the manner and within the time indi-
cated in the statute, no provincial Act is legally exempt
from the operation of this prerogative of disallowance.

This is, perhaps, the proper place to advert to a glaring
error glaring to us in Canada at least into which Prof-
Dicey has fallen in the work to which we have frequently
referred (v) a work which, in its elucidation of the prin-
ciple of ihe supremacy of law, as the fundamental principle
of Anglo-Saxon government the world over, stands to-day
fticlie princeps; but which, in its references to the colonies
generally and to Canada in particular, displays a strange
lack of appreciation of the true position of affairs (iv). To
confine our attention, however, to this particular error
Prof. Dicey is completely astray in laying it down, that the
lodging of this veto power in the hands of the Governor-
I General in Council i.e., with the Dominion Government,
was intended to obviate the necessity for resort to the
courts, for the decision of “constitutional” cases involving
the determination of the line of division between the sphere
of authority of the Dominion parliament and that of a pro-
vincial assembly.

“The futility of a hope grounded on a misconception of
the nature of federalism,” is a pretty strong expression, and
. contains a very direct charge that the Fathers of Confedera-
tion did not know what they were about in this matter.
One who, like Prof. Dicey, speaks with authority, should
not have penned such a grave charge without first consult-
ing the debates which took place in the various legislatures
upon the “Confederation Resolutions.” Had he done so, he
would have found that a very sharp line of distinction was
drawn between the exercise by the Dominion government,
f(.s <(, iiK/ftcr of i><>liit<- allowance of provincial Acts, and the exercise by the courts

(v) ” The Law of the Constitution.”

(‘) See note at end of this chapter. And see Chap. I. (int<>.

THE GOVERNOR-GENERAL. 173

of the .judicial fcucf’ton of declaring an Act ultra vires.]
As expressed by the Chancellor of Ontario, in a recent/
case (a;), the supervision, 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 Resolutions, upon which the B.
N. A. Act is founded, was the work of the most eminent
legal minds of that day in Canada; and a glance at the
debates upon those Resolutions will show that they
thoroughly appreciated the distinction, pointed out in these
later days by the Chancellor. Throughout the debates, it
was clearly recognized that the exercise by the Dominion
government of the power of disallowance, was to be exer-
cised in- support of federal unity, e.g., to preserve the
minorities in different parts of the confederated provinces,
from oppression at the hands of the majorities. That it
was not intended to obviate the necessity for resort to the
courts, is apparent from the following extract. Complaint
was made that while the Dominion government 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 legisla-
tion ? The speaker (y) presumed, 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 delegates under-
stood the matter better than that. Neither the Imperial govern-
ment 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 magistrate will
decide that the law passed by the federal legislature is not law,

(x) Atty.-Genl. (Can.) v. Atty.-Genl. (Ont.),20 O. R. at p. 245.

(y) Hon. A. A. Dorion ; afterwards Sir A. A. Dorion, Chief Justice of
Quebec. See Confed. Deb. p. 690.

174 THE CANADIAN CONSTITUTION.

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. ATTORNEY-GENERAL CARTIER. Should the general
legislature pass a law beyond the limits of its functions, it will
‘be null and void, i>len<> jur?.

” 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 analagous to
the power of disallowance vested in the Queen in Council
over Dominion legislation. The power in each case is
subject to the limitations prescribed by those ” conventions
of the constitution ” to which Prof. Dicey so frequently
! | refers. An act of the Dominion parliament may run the
gauntlet of the home government, and yet be afterwards
declared 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 con-
tided to the parliament of Canada by section 91 of the
B. N. A. Act. And with regard to the disallowance by
the governor in council of provincial Acts, the exercise of
this power by reason of the provincial Act being thought
nil r vires, has almost entirely ceased, and the supervision

I now works almost exclusively “in the plane of political

I expediency.”

Note to p. 172 ante. The first chapter of Prof. 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 at p. 58 in disproof of “the alleged legal
limitations on the legislative sovereignty of parliament,” namely,
limitations arising out of the precepts of the moral law. the prerogatives
of the Crown, and the binding effect upon parliament of preceding Acts

THE GOVERNOR-GENERAL. 175

of parliament is all equally applicable to the position of Canadian
legislatures. 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 bicameral), 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 parlia :
ment 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 (105) he lays it down :

” When English statesmen gave parliamentary government to the
colonies, they almost, as a matter of course, bestowed upon colonial
legislatures, authority to deal with every law, whether constitutional or
not, which affected the colony, subject, of course, to the proviso, 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 federalism ”
comes with rather bad grace from Prof. Dicey. He speaks (p. 133)
of a federal state as “a political contrivance intended to reconcile
national unity and power with the maintenance of ‘ state rights.’ ” The
end aimed at,” he says, “fixes the essential character of. federalism.” A
very clear statement this ; and yet, the Professor apparently fails to
note that ‘ state rights ‘ may be paraphrased and generalized as ‘ local
self-government,’ and that his definition of federalism is clearly appli-
cable to those “conventions” of the British constitution which regulate
the relations between Great Britain and her colonies. We might refer,
too, to another passage in which he is historically inaccurate. He treats
(page 144) the division of power between the legislative and executive
departments of government, under the American system, and the
restrictions, which appear in their ” Constitution,” upon interference
with individual rights, as being part and parcel of ” connected with “-
the same federal idea of division. In this he is clearly astray. Several
of the constitutions which existed in the individual states prior to the
adoption of “the Constitution of the United States,” exhibit both these
characteristics the first, because that was thought to be the English
principle, and the second, because of the prevalence then of the doctrines
of Rousseau and Montesquieu. \L

CHAPTER IX.j

COLONIAL LEGISLATIVE POWER.

We have now pointed out that, in common with other
British colonies, legislative power in Canada is subject to
certain limitations, arising from the colonial relationship.
Not only must the assent of the Crown as a constituent
branch of the legislature be given (//): the Act so assented
to must run the gauntlet of the Home Government (//) ;
having done so, it may still, by judicial decision, be declared
absolutely void and inoperative by reason, and to the ex-
tent, of its ” repugnancy ” to Imperial legislation having
the force of law in Canada (/>).

Much must be hereafter said in reference to the division,
in Canada, of the subject matters proper for legislative
action, between the parliament of Canada on the one hand,
and the legislative assemblies of the respective provinces
on the other; but for the purpose of the enquiry to which
this chapter is to be devoted, this division of the field may
l>e disregarded. We desire to treat of the power of legisla-
tion as a totality, and to ascertain what, if any, further
bounds are set to that power in this British colony.

It may be argued that this question is settled by the
Colonial Laws Validity Act, 1<S()5 (c\ and that as any colonial law is to be held inoperative to the extent of its (n) See Chap. VII. ante, p. 147. (b) See Chap. IV. ante, p. 58, et seq. (c) 28 & 29 Vic. c. 63 (Imp.). COLONIAL LEGISLATIVE POWER. 177 repugnancy, but not otherwise, it impliedly follows that all colonial laws not open to the charge of repugnancy must be held operative, and that therefore the power of legisla- tion is subject only to the limitations already adverted to as full as that of the Imperial parliament, and that colonial laws are equally obligatory on courts of justice. But a proposii^gg formerly (d) laid down must not be over- looked ; namely, that in the last analysis our rights, legally speaking, are held under Imperial grant, and to our right to legislate this proposition is particularly applicable. In other words, we must always refer to the colonial “Charter” proclamation, commission, or Imperial Act containing the grant of legislative power, to ascertain its extent ; and beyond the limits therein laid .down, the power cannot extend. For us, this Charter is the B. N*JL Act, and the terms of the grant are of the widest possible description (saving always Imperial sovereignty), and subject to the’ division of the field between the Dominion and the pro- vinces and subject always to the checks to which we have j referred the power of legislation is supreme in relation toj all matters within the limits of colonial legislative power.* This principle is fully recognized in the judgment of the Judicial Committee of the Privy Council in a case involving consideration of the position of the Legislature in India Queen v. Burah (>). Lord Selborne, delivering the unani-
mous opinion of the Committee, referred to the judgment of
the court below, as in effect treating the Indian Legislature
as an agent or delegate, acting under a mandate from the
Imperial parliament, and dissented from that judgment in
the following forcible language :

” But their Lordships are of opinion that the doctrine of the
majority of the court is erroneous, and that it rests upon a
mistaken view of the powers of the Indian Legislature, and
indeed of the nature and principles of legislation. The Indian
Legislature has powers expressly limited by the Act of the Im-
perial parliament which created it, and it can, of course, do

(j) Chap. IV. ante, p. 5(5. (<) L. R. 8 App. Gas. 904.

CAN. CON. 12

178 THE CANADIAN CONSTITUTION.

nothing beyond the limits which circumscribe these powers.
JBut when acting within those limits, it is not in any sense an
Lgent 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 instrument by which, affirma-
tively, the legislative powers were created, and by which,
negatively, they are restricted. If what has been done is legis-
lation within the general scope of the affirmative words which
give the power, and if it violates no express condition or restric-
tion 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 inquire further, or
to enlarge constructively those conditions and restrictions” (/).

In an earlier case in the Court of Queen’s Bench, and
afterwards, on appeal, in the Exchequer Chamber the
cause cettbre of Phillips v. Eyre (y) the judges of those
courts had to consider the position and powers of a colonial
legislature, and the extent of the operation of colonial
enactments. As a defence to the action, which was brought
in England, for trespasses alleged to have been committed
in Jamaica, the defendant, governor of the island, pleaded
an Act of Indemnity passed by the Jamaica Legislative
Assembly. The plea was demurred to, and the question
was thus raised, (1) as to the power of the colonial assembly
to pass an Act of Indemnity, and (2) as to the extra terri-
torial operation of that Act. For the defendant it was
argued that by the law of England tin- legislature of a
colony is supreme within the boundary <>f tin- colony: that
the courts in this country are bound to recognize the laws

(/) Compare the language of Marshall, C.J., in McCullocli v. Mary-
land, 4 Wheat. 421 (United States S. C. Rep.), quoted at p. 92 of the
Mich. University Lectures of 1889, published sub. tit. “Const. Hist, as
seen in American Law.”

(fl) L. R. 4Q.B. 225; 6 Q. B. 1.

COLONIAL LEGISLATIVE POWER. 179

which the colonial legislature make as part of the English
law ; that the Crown may refuse its consent to a colonial
Act ; the Imperial parliament may interfere, and the laws
which the colonial legislature make must not be ” repug-
nant ” to the law of England, as that word is explained in
28 & 29 Vic. c. 63 ; but, subject to those qualifications, the
laws passed by the colonial legislature and made with
reference to acts committed within their jurisdiction, are as
binding as the laws of the Imperial parliament ; that Eng J
lish courts recognize them, not through international
courtesy, but because they must be taken to be part of the
law of England (h) ; and that it may well be, that the
colonial legislature have no power to take away a remedy
from a British subject, but they may discharge a cause of
action which has accrued within the limits of their terri-
tory.

In delivering the unanimous judgment of the Court of
Queen’s Bench, Chief Justice Cockburn says :

” It cannot be disputed that the Jamaica

Legislature, having full legislative authority within the limits of
the colony, subject only to the assent of the Crown, had full
power to pass the statute in question, so far as to take away the
right of action before the local tribunals …. but it is
contended on the part of the plaintiff, that a right of action
being given before the courts here, in respect of personal
wrongs committed in a colony, this right cannot be taken away
by an Act having no legislative effect beyond the limits of the

local authority It may be useful to consider what

would have been the effect if, instead of legislating ex post facto,
the Legislature of Jamaica in anticipation of future events, had
passed a statute authorizing the acts which have given rise to this
action. We cannot doubt that in such a case, no right of action

would arise here It remains to be seen how far

this principle will apply where an act, admitted to have been
unlawful when done, is legalized and divested of its tortious
-character, and immunity is afforded to the wrongdoer in respect

(li) See Kedpath Allen, cited ?w.s/

180 THE CANADIAN CONSTITUTION.

of it, by e.c }>ost facto legislation We are, however,

of opinion that the same principle which we have stated to be
applicable to an act made lawful by former legislation, is equally
applicable to an act originally wrongful, but legalized by ai>
f.r iH)xtJ’cttes thereto, post.

1S4 THE CANADIAN CONSTITUTION.

\ legislation a saving of the sovereignty of England. In the
Quebec Resolutions, upon which the B. N. A. Act is founded,
this restriction is express (q) ; but in the Act itself it was
no doubt deemed unnecessary to insert any words of express
| restriction upon this point, as it is an implied restriction
iupon all colonial legislation (r). In a veiy early case (*),
Chief Justice Yaughan, under the heading ” What the par-
liament 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 MI id
subordinate to the parliament of England (f).

3. It cannot change the law of having judgments there
given, reversed for error in England; and others might be
named (u).

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.

And in a Canadian case it is laid down, that legislation

J o

inconsistent with, its relation to the Empire of which it
forms a part, would be ” unconstitutional ” and void (r).

The second and third propositions laid down by Chief
Justice Vaughan, have been already discussed, with the
exception of the question as to the prerogative right of the
Crown to hear, in the Privy Council, appeals from Colonial
judgments ; this must be dealt with hereafter. Propositions
1 and 4 relate no doubt to extreme cases, which can hardly
arise in this age, but there arc many matters in respect to

(q) Resolution No. 29. (>) Dicey ‘ Law of the Const.’ 105.

(x) Craw v. Ramsay, Vaugh. 292. (0 See Chap. IV. ante.

(n) i.e., it cannot legislate in reference to tha prerogative right of the
Crown to hear and determine appeals from colonial courts ; or change
a law of express colonial application.

(v) International Bridge Co. v. Can. Southern Ry., 28 Grant, at
p. 134; see also Tully v. Principal Officers of H. M. Ordnance, 5 II. C.
Q. B. 6.

COLONIAL LEGISLATIVE POWER. 185

which we possess no legislative power because its exercise
would be a usurpation of sovereignty in its international
sense (w).

There is a further implied restriction upon our legisla- 1
tive power, viz., that by the very terms of the grant that ;
power is territorially limited (x) ; and this branch of our/
subject is of so much importance that we must give it
careful attention (y). It will help to a solution of our
problem if we consider, first, the legislative powers,
territorially considered of the Imperial parliament. That
body is the authorized exponent of the will of the nation
in its international sense, and so far as other nations
are concerned, its enactments are of course inoperative
beyond the borders of the Empire, including within j
those borders, the ” floating islands ” of the British j
navy and mercantilfi_jaaajia.e \z). In a work of recog-
nized authority (a), certain canons of construction are laid
down as applicable to Imperial statutes, which may be
shortly stated. Prima facie, enactments of the parliament
of the United Kingdom are operative only within the
United Kingdom, and do not extend to the colonies (b),
nor to British subjects (nor, a fortiori, to foreigners) out
of the United Kingdom (c) ; unless there is the intention
<( clearly expressed or to be inferred either from its I

(IP) Sae B. N. A. Act, ss. 9 and 132.

(x) See 9 App. Cas. 117, passage quoted ante, p. 182.

(y) No text writer gives this matter more than a passing notice. See
Dicey, “Law of the Const.” p. 97, note (3).

(2) Reg. v. Anderson, L. R. 1 C. C. R. 161 ; Reg. v. Carr, L. R. 10
<3. B. D. 76.

(a) Maxwell, “The Interpretation of Statutes,” Chap. VI.

(b) See Chap. IV. ante, p. 57, ft seq.

(c) Arnold v. Arnold, 2 Myl. & Cr. at p.” 270; Jeffreys v. Boosey, 4
H. L. Cas. 815; Cope v. Doherty, 2 DeG. & J. 614; ex parte Blain, L.R
12 Chy. D. 522. Laws as to procedure in actions, including the limita-
tion of a time within which proceedings are to be taken leges fori are
of course binding on all litigants, subjects or foreigners; Lopez v. Burs-
lem, 4 Moo. P. C. 405.

186 THE CANADIAN CONSTITUTION.

language or from the object or subject matter or history of
the enactment ” (d). The Colonial Laws Validity Act, 1865,
gives the canon of construction in reference to Imperial
enactments which are to be held to extend to a colony
there must be the ” express words or necessary intendment ”
of the Act. But in any case, if the language of an Imperial
Act of parliament, unambiguously and without reasonably
admitting of any other meaning, applies to foreigners
abroad, courts of justice, the Empire over, must obey and
administer it as it stands, for they cannot question the
authority of the Imperial parliament or assign any limits
to its powers (e). The entire ground would seem to be
covered by the language of Brett, J., in delivering judgment
in a late English case ( f ‘) :

” 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 ooly 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 Merchant Shipping Act, and in some of
the Admiralty Acts. If the Legislature of England, in express
terms, applies its legislation to matters beyond its legislatorial
capacity, an English court must obey the English legislature,,
however contrary to international comity such legislation may
be. Bat unless there be definite express terms to the contrary,
the statute is to be interpreted as applicable, and as intended to
apply only to matters within the jurisdiction of the legislature by
which it is enacted.” /

but we may be allowed to quote also^from the opinions of

(d) Maxwell, 109-70; The Sussex Peerage Case, 11 Cl. & F. at p. 146 ;
Jeffreys v. Boosey, 4 H. L. Gas. 815 ; Brook v. Brook. 9 H. L. Gas. 198 ;
Gope v. Doherty, 2 DeG. & J. G14. And see Reg. v. Keyn, L. R. 2 Ex.
D. 63 j Kentledge v. Low, L. R. 1 Ghy App. 42, 3 E. & I. App. 113 ; Atty.-
Genl. of Houg-Kong v. Kwok-a-Sing, L. R. 5 P. C. 198.

(e) Maxwell, 179-^0.

() Niboyet v. Niboyet, L. R. 4 P. D. at pp. 19-20.

COLONIAL LEGISLATIVE POWER. 187

two very eminent English Judges, who in succession,
occupied the position of Lord Chief Justice of England
in a very celebrated case arising out of the sinking of the
English steamer ” Strathclyde ” by the German steamer
” Franconia,” off Dover, in 1876 (</). Chief Justice Cole- ridge says : ; ‘ I do not of course forget that it is freely admitted to be* within the competency of parliament to extend the realm how far so ever it pleases to extend it by enactments, at least so as to bind the tribunals of the country.” Chief Justice Cockburn says : ” Now no proposition of law can be more incontestable, or more universally admitted, than that, according to the general law of nations, a foreigner though criminally responsible to the law of a nation not his own, for acts done by him while within the limits of its territory, cannot be made responsible to its law for acts clone beyond such limits. . . . This rule must however be taken subject to this qualification, namely, that if the legislature of a particular country should think fit, by express enactment, tO-Trender foreigners subject to its law, with reference to offences committed beyond the limits of its territory, it would be incumbent on the courts of such country to give effect to such enactment, leaving it to the state to settle the question of international law with the governments of other nations.” From these authorities, we may conclude that if the [ Imperial parliament should enact that any person, British subject or foreigner, committing such-and-such an act abroad, should, if found within British territory, suffer, upon conviction, a certain punishment^); or that, in decid- j. ing a civil action in respect *to contracts made abroad, to be performed abroad, English law should govern ; there is & doubt, every British court of justice would be obliged to (g) Reg. v. Keyn, L. E. 2 Exr. D. 63, at p. 152 and p. 160. (7i) See sec. 267 of the Merchant Shipping Act, 18-54 ; Reg. v. Ander- son, L, R. 1 C. C. R. 161. It required statutes to authorize a trial in one county of England for an offence committed in another county. See the valuable note to Keighley v. Bell, 4 P. & F. at p. 790,. 188 THE CANADIAN COXSTITL’TION. give effect to the enactment. May we lay down the same rule in regard to a ” confirmed ” Act of a colonial legisla- ture ? We think not. Until very recently, there was no judicial decision directly upon this question, but there was high authority in support of the view here adopted that & colonial legislature cannot affix a criminal character to acts committed beyond the territorial limits of the colony ; and there would appear to be no argument in favor of this view, which would not be equally applicable to the case of colonial legislation affecting civil rights “accrued” abroad (i) (if we may use the expression). The high authority to which we refer as to criminal legislation, is that of the law officers of the Crown in England. In 1861, the parliament of (Old) Canada passed an Act to give jurisdiction to Canadian magistrates in reference to certain offences com- mitted 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 legisla- ture, the jurisdiction of which is confined within the limits of the colony ” (j). And again, the Dominion parliament, in 1869, passed ” An Act respecting perjury,” the third section of which reads : ” 3. Any person who wilfully and corruptly makes any false affidavit, affirmation, or declaration out of Canada, or out of any Province of Canada, before any functionary authorized to take the same for the purpose of being used in Canada, or in such Province, shall be deemed guilty of perjury, in like manner as if such false affidavit, affirmation or declaration had been made in Canada, or in such Province, before competent authority ; and such je.’son may be dealt with, indicted, tried and if convicted, b3 sentenced, and the offence miy be laid and charged to have (*’) The legal rights arising out of a contract, are governed by the lex loci contractus ; the lex fori governs as to the nature extent and character of the remedy, Forsyth, 239, 249. (j) Jour. Leg. Ass. Can 1862, p. 101. COLONIAL LEGISLATIVE POWER. . 189 been committed, in that district, county or place where he has been apprehended or is in custody.” In a despatch (k) to the Governor-General, the Colonial Secretary adverts 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 not disallowed, but the acquiescence of the Minister of Justice in the correct- ness of the law laid down by the Colonial Secretary, is evidenced by the fact that the Act was amended in the very next session, so as to limit the operation of the third section to affidavits made in one province of the Dominion for use in another province (I). Forsyth (m), in his collection of opinions on constitu- tional law, cites an pinion given by ‘the law officers of the Crown (n), in England, in 1855 : ” We conceive that the Colonial Legislature cannot legally exercise its jurisdiction beyond its territorial limits three miles from shore or, at the utmost, can only do this over persons domiciled (o) in the colony, who may offend against its ordinances even beyond those limits, but not over, other persons ” ( y>).

In the case of Peak v. Shields (q) the question was
discussed in our courts, but owing to the divergence of
view on the part of the judges (particularly in the

(k) Can. Sess. Papers, 1870, No. 39; see Todd, ” Parl. Govt. in Brit,
Col.” 150.

(I) 33 Vic. c. 26, amending 32-33 Vic. c. 23, s. 3.

(m) p. 24 ; see also p. 238.

(n) Sir J. Harding, Queen’s Advocate; Sir A. E. Cockburn, A.G.
(afterwards Lord Chief Justice of England) ; and Sir R. Bethell, S.G.
(afterwards Lord Chancellor Westbury).

(o) See post, p. 193.

(p) See also Atty.-Gen. of Hong Kong v. Kwok-a Sing, L. R. 5 P. C.
179, and re Goodhue, 19 Grant 386, at pp. 404 and 452.

(</) 31 U. C. C. P. 112; 6 O. A. R. 639; 8 S. C. R. 579.

190 THE CANADIAN CONSTITUTION.

Supreme Court) the case can hardly be considered an
authority (r). The plaintiffs invoked against the defen-
dants a clause in the Insolvent Act of 1875, which, shortly
stated, provided that when it was found on the trial of an
action against an insolvent, that the debt sued for, had
been contracted by him when, to his knowledge, he was
unable to meet his engagements, he might be imprisoned
for two years unless the debt and costs were sooner paid.
In the case in question, the debt had been contracted in
England. A majority of the judges, who rendered opin-
ions in the case, held that the statute did not affix a crim-
inal character to an act committed abroad; that the law
enacted by the section, was a law r/x to tltc rciii?<h/ avail-
able I n <>iir courts, and therefore valid (s). Of the
Supreme Court, the majority who expressed an opinion
on this constitutional point, decided against the applica-
bility of the section, invoking the rules of interpretation to
which we have before referred, as limiting the section to
debts contracted in Canada; but at the same time serious
doubt was expressed by each of these judges as to the
validity of the enactment, in case its unambiguous mean-
ing had admitted none but the wider interpretation. The
position is thus clearly put by Mr. Justice Strong (t) :

” By the 91st section of the B. N. A. Act, the parliament
of Canada is empowered to make laws for the peace order
and good government of Canada. Does this warrant the
enactment of statutes binding British subjects in respect of

H (r) As to the questions arising in this case, which involved considera-
tion of the B. N. A. Act, seeposf, notes to s. 91, s-s. 21, etc.

(s) Somewhat analogous questions arise under the ” Act respecting
Arrest and Imprisonment for Debt” (R. S. O. c. 67). It is submitted
that so far as these statutes make provision as to the remedy to secure the
performance of the obligation created by the contract sued on, they apply to
the case of proceedings for a debt contracted abroad ; but that so far as
they are punitive whether technically “criminal” or not they do not
(as a matter of interpretation) so apply, and could not (as a matter of
jurisdiction to enact them) be made so to apply.

(t) 8 S. C. R.at p. 596-7.

COLONIAL LEGISLATIVE POWER. 191

cacts done without the territory of the Dominion, merely because
they happen at the time to have a domicile in the Dominion ?
Or are not such persons, like all other subjects of the Queen,
liable to be affected by no legislation regulating their personal
conduct without the limits of the Dominion, save such as may
be enacted by the Imperial legislature, the parliament of the
United Kingdom ? I think these weighty and important
questions would arise and have to be determined in the present
case, if we found in the enactment under consideration, either
from express words or necessary implication, that it was the
intention of the legislature to apply it to traders, domiciled
inhabitants of Canada, making purchases without the Dominion.
But as there is not the slightest indication of such a design, as
respects this 136th section, we are relieved from the obligation
of determining such a grave question of constitutional law.”

The only other case in our courts, is Regina v. Brierly (u) }
involving the validity of section 4 of the ” Act respecting
offences relating to the Law of Marriage” (R. S. C. c. 161) :

” IV. Every one who being married, marries any other per-
son during the life of the former husband or wife, whether the
second marriage takes place in Canada or elsewhere, is guilty
of felony and liable to seven years’ imprisonment :

” 2. Nothing in this section contained shall extend to :
(a) Any second marriage contracted elsewhere than in Canada
by any other than a subject of Her Majesty, resident in Canada,
leaving the same with intent to commit the offence ; . . .”

This section was held valid by the Divisional Court of
the Chancery Divison, but in view of the decision about to
be referred to, it would appear that this judgment can only
be supported as to foreign marriages, upon the view that
the offence dealt with by the section, is the leaving Canada
with intent. The opinion of the Chancellor in that case, is
if to say so be permissible a clear marshalling of all that
can be urged in support of the jurisdiction of a colonial
legislature to pass such an enactment ; and were it not that
Regina v. Brierly must be considered overruled by the

(u) 14 O. R. 525.

192 THE CANADIAN CONSTITUTION.

decision of the Judicial Committee of the Privy Council in
the case about to be noted, it might be deemed an act of
presumption to question the correctness of the principles
enunciated. With all deference, it is submitted that the
limitation of the lines of judicial investigation open to a
Canadian judge, to a consideration of the express pro-
visions of the B. N. A. Act on the one hand, and of the
Colonial Laws Validity Act on the other, is to leave
untouched those implied restrictions to which reference
has been made in an earlier part of this chapter such, a. y.,
as those indicated in Craw v. Ramsay (v). The meaning
given to the phrase, ” extra territorial legislation ” seems
also unduly limited ; in the books it is constantly used to
describe the attempt by the legislature of one state, to
determine the legal relation to arise, in that state, from
acts done and contracts entered into in another.

Very opportunely, the report of the case, McLeod v.
Attorney-General for New South Wales (w), before the
Judicial Committee of the Privy Council, comes to hand.
The legislature of that colony had upon its statute book
the following enactment :

“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 for seven
years.”

By applying to this enactment the rules of interpreta-
tion already discussed, the~6sfiamittee construed the word
” wheresoever,” as meaning ” wheresoever in this colony/’
The question of jurisdiction is thus dealt with :

” Their Lordships think it right to add, that they are of
opinion that if the wider construction had been applied to the
statute, and it was 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 Lordships are far from suggesting

(v) See ante, p. 184, H seq. (r) App. Gas. (1891) 455.

COLONIAL LEGISLATIVE POWER. 193

that the legislature of the colony did mean to give to 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.”

It will be noticed, perhaps, that the report of this case
does not disclose whether or not the appellant was a
British subject, or whether he was, or was not, a resident
of the colony. His first marriage took place in New South
Wales, and it would appear that in the United States,
where the second marriage was celebrated, he had in some
way procured a divorce from his first wife. As to his
nationality, the name is perhaps suggestive. It may there-
fore be thought that there is still room for argument as to
the power of a colonial legislature to affix criminal character
to acts done abroad by a British subject, whose domicile is
in the colony, but there is nothing in the judgment of the
Committee to support such a view.

In this connection it may be remarked that in regard
to Imperial Acts, the question is one of construction
merely ; with us, it is a question of jurisdiction, or of
construction to save jurisdiction. If the jurisdiction be
wanting, the legislation is void is not law and would
have to be judicially so held (x). Such an Act would be
unconstitutional, in the proper sense of that term i.e., con-
trary to our constitution and the very same doctrine
which lays down, that it is the right and duty of a
Canadian judge to declare void an Act of a provincial
legislative assembly, trenching upon ground sacred to the
parliament of Canada, lays down with equal force, that it
is also his right and duty to declare void as ultra vines
any Act, provincial or Dominion, which in its territorial
scope exceeds the power of a colonial legislature (y).

(x) See Reg. v. Brierly, 14 O. R. 525.

(y) See the judgment of Marshall, C.J., in Marbury v. Madison, 1
Cranch, 137 ; Political Science Lectures, 1889, University of Michigan,
p. 77, et seq. ; re Goodhue, 19 Grant, at p. 452.
CAN. CON. 13

1!)4 THE CANADIAN CONSTITUTION.

All the limitations upon oar legislative power (alwavs
considered as to its sum_total) have now probably been
adverted to, and we may again refer to the position for-
merly taken (z), and may summarize by saying : Within
the limits laid downi, expressly or jmpliedly, by our charter
the Mr N. A. Act and subject always to Imperial con-
trol as before indicated (a), the powers of legislation pos-
! by the various legislative bodies existing in Canada,
are plenary powers, and that, “jurisdiction conceded, the
will of the legislature is omnipotent according to British
theory, and knows no -superior ” (6). Paraphrasing the lan-
guage of Chief Justice Marshall in a very celebrated case
which came before the Supreme Court of the United States
(r), we admit, as all must admit, that the powers of a colonial
government are limited, and that its limits are not to be
transcended: but the sound construction of the B. N. A.
Act, must allow to the legislatures, that discretion with
respect to the means by which these powers, conferred by
it, are to be carried into execution, which will enable those
bodies to perform the high duties assigned to them in the
manner deemed most beneficial to the people. Let the end
be legitimate, let it be within the scope of the constitution,
and all means which are not prohibited but consistent with
the letter and spirit of the constitution, are legal. Where
the law is not prohibited, to undertake to enquire into the

(2) Ante, p. 177. (n) Ante, Chap. VII.

(1) Per Mowat, A.G., arguendo, Reg. v. Severn, 2 S. C. R. at p. 81.
The theory is not exclusively British, for, jurisdiction conceded, the
same rule applies to Acts of Congress and of the State Legislatures in
the adjoining Republic.

McCulloch v. Maryland, 4 Wheat, 421. Note that Congress is
given certain “enumerated powers” and also power ” to make all laws
which shall be necessary and proper for carrying into execution ” those
powers, etc. The B. N. A. Act gives to each legislature power to make
laws “in relation to” the various matters as distributed between the
various legislative bodies. If there is any distinction, ours is the wider
phrase, and the principle of the decisions of the U. S. Supreme Court on
this subject of ” implied powers ” is applicable a fortiori to the powers of
our legislatures.

COLONIAL LEGISLATIVE POWER. 195

-degree of its necessity, would be to pass the line which
circumscribes the judicial department, and to tread on
legislative ground.

In courts of justice in England and other British colonies,
our law (statutory and common) is entSled to at least as
full recognition and effect as the laws of any foreigffnation/
in accordance w r ith the principles of comity (d). On
appeals to Her Majesty in Her Privy Council, judicial
recognition is, of course, accorded them (e) ; in other cases,
they must be proved as fact, /but it should be observed that
in regard to the proof of our law, as embodied in legislative
enactment, the 6th section (/) of the Colonial Laws Validity
Act, 1865, provides for a simple method of proof, viz., a

(copy of the Act, certified as such by the proper officer of
the legislature whose enactment it is.

In a late case (g) before the Judicial Committee of the
Privy Council, it was very broadly laid down by Sir R.
Phillimore, in delivering the judgment of the Committee,
that (the law contained in an Act of the legislature of a
colony, and ratified by the express sanction of her Majesty,
is, in every case to which it is applicable, of binding
authority, equally in the Queen’s High Courts in England,
and in Vice-Admiralty Courts in the colonies. We are safe
therefore in saying that in an action in an English court,
or the court of another colony, the law of Canada, statutory
or common law, would, on proof in the manner before
indicated, be given effect to, either on the doctrine” of
comity, or on the stronger doctrine enunciated in Redpath
v. Allen.

(rf) Phillips v. Eyre, L. R. 4 Q. B. at p. 241 ; Reg. v. Briefly, 14 O. R.
at p. 534.

(e) Cameron v. Kyte, 3 Knapp, P. C. at p. 345.

(/’) 28 & 29 Vic. c. 63 (Imp.). Is this section in force in the colonies ?
^or does it merely affect the method of proof in the English courts ?

(/;) Redpath v. Allen, L. R. 4 P. C. 511.

PART III.

THE ORIGINAL GROUP.

CHAPTER X.

THE DIVISION OF THE FIELD.

In the earlier chapters of this book, the practical
oneness of the spheres of authority of the legislative and
executive departments of government has been insisted
upon, and the legal supremacy of the former over the latter
pointed out (a). Expressed in another way and in refer- ]
ence to a government of limited authority, it may be said )
that to fix the sphere of authority of the legislative depart-
ment of such a government, is to fix at the same time the \
sphere of authority of the executive department of that j
government. Applying that principle to the Canadian
constitution, it will be at once seen how important it is to
fix, if possible, the exact line which is to divide, for legis-
lative purposes, the field of colonial authority between the
Dominion parliament and the Provincial legislative assem-
blies. For, that line found, we have likewise established
the line of division between the Dominion and the Pro-
vinces for the purposes $f executive government.

Before entering upon an examination in detail of the
sections of the B. N. A. Act which provide for the distribu-
tion of legislative power, we may shortly advert to the
laws and legal institutions existing in the different prov-
inces at the time the B. N. A. Act took effect, and to some
general principles which have, been authoritatively estab-
lished in reference to the nature of the division effected by
the Act.

(a) See ante, p. 12, p. 22, et seq. t p. 40, et teq., and Chap. VI.

200 THE CANADIAN CONSTITUTION.

I. When the Union took effect, there was in existence
in each of the individual provinces, a legal system a
“body” of laws and legal institutions. By sec. 129 of the
B. N. A. Act, it was provided that all laws, etc., in existence
in the different provinces at the time of the Union, ” shall
continue . . . . as if the Union had not been made,
subject nevertheless (except with respect to such as are
enacted by or exist under Acts of the parliament of Great
Britain, or of the parliament of the United Kingdom of
Great Britain and Ireland) to be repealed, abolished or
altered by the parliament of Canada, or by the Legislature
of the respective province, according to the authority of
t/te parliament or of that legislature under this Act ”

This mass of laws and legal institutions may be con-
sidered the raw material, so to speak, upon which the legis-
latures of the Dominion and the respective provinces were
to operate, each according to its authority v.vdcr the
B. N. A. Act; and it must be borne in mind that we have
laws (common law and statutory enactments) on many
subjects which have come down to us from pre-Confedera-
tion days, and these can be repealed or altered only by that
legislative body which could now, were they non-existent,
f ‘enact them (b). The division, therefore, effected by the
B. N. A. Act, was a present division of the whole bod}’ of
existing law (in its widest sense), as well as a division of
the field for future exercise of authority (c). Of course,
the body of law in existence when the B. N. A. Act came
into force was of provincial creation, but at once upon that
Act taking effect, that portion of existing laws, etc., which
fell within the sphere of authority of the Dominion par-
liament, became what we may call a body of Dominion
law, while the remainder might, not inaptly, be designated
a body of provincial laws.

(b) Dobie v. Temporalitias Board, 7 App. Ca?. 13ft.

(c) Sea ante, pp. 49, 50.

V

THE DIVISION OF THE FIELD. 201

II. The division effected by the B. N. A. Act is ex-
haustive. The limitations upon our powers of self-govern-
ment, arising from our colonial status, have been already
dealt with (rZ). The power to legislate along certain lines
.and in reference to certain matters, deemed to be matters
of Imperial concern, has been expressly or is impliedly
withheld; but o_ all the matters in respect to which we
hay_e__power i.e., of the entire field of self-government

alloted to us the B. N. A. Act effects a division, assigning
certain classes of those matters to the Provincial assem-
blies, and the balance to the parliament of Canada.

The following passage from a recent judgment of the
Judicial Committee of the Privy Council discloses the con-
tention to the contrary which had been raised, and finally
disposes of it : (e)

” It only remains to refer to some of the grounds taken by
the learned judges of the Lower Courts which have been strongly

objected to at the Bar It has been suggested

that the provincial legislatures possess powers of legislation
either inherent in them, or dating from a time anterior to the
Federation Act, and not taken away by that Act. Their Lord-
ships have not thought it necessary to call on the respondent’s
counsel, and therefore possibly have not heard all that may be
said in support of such views. But the judgments below are so
carefully reasoned, and the citation and discussion of them here
has been so full and elaborate, that their Lordships feel justified
in expressing their present dissent. . .. They adhere to the
view which has always been taken by this Committee, that the
Federation Act exhausts the whole range of legislative power,
.and that whatever is not thereby given to the provincial legisla-
tures, rests with the Parliament (/).”

III. The parliament of Canada and the provincial
I assemblies possess, each within the sphere assigned to it,\

(d) Ses Chap. IX.

(e) Bank of Toronto v. Lambe, 12 App. Gas. at p. 587.

(/) See further upon this point, the notes to the opening clause of
sec. 91 post.

202 THK CANADIAN (.'( (XSTITUTIOX.

plenary powers of legislation. This attribute of colonial
legislatures lias been examined at some length in the last
chapter, and we need here only emphasize this fact, that
there is no distinction whatever, in this regard, between
the Dominion parliament and the assemblies of the different
provinces. The principle* has been applied alike to the
legislative power of each to uphold, for example, the
“local option ” clauses of the Canada Temperance Act (<j),
and the delegation of power to license commissioners, under
the Ontario Liquor License Acts (ft).

IV. In a country under the rule of law, it necessarily
devolves upon the courts which administer law, to enquire
and determine, in any given -case, whether an Act of a
Jslature having authority over a limited range of sub-
Iject matters, is within or without its powers, is or is not
law. As we have already pointed out (/’), long before the
passage of the B. N. A. Act, English and Colonial judges had
been called on to consider colonial Acts, and to determine
the question of their legal validity ; and the duty of the
courts to determine like questions under the B. N. A.
Act, was no new jurisdiction, although full appreciation of
the extent of their judicial authority in this regard, seems
to have dawned on Canadian judges with something like
surprise. It serves to indicate how small is the range of
matters with which colonial legislatures are unable to deal.
that we find colonial judges almost forgetting that any
limits exist (j). After twenty -live years of experience

(<i) Russell v. Reg., 7 App. Gas. 829. (//) Hodge v. Reg., 9 App. Gas. 117. See also Reg. v. O’Rourke, 1 O. R. 405, 32 U. G. C. P. 388, as to the adoption by the Dominion Parlia- ment, for purposes of criminal procedure, of Provincial Acts respecting jurors. (i) See Chap. IV. and Chap. IX., ,mtc. (j) In this connection we may point out that in L’Union St. Jacques v. Belisle, L. R. 6 P. C. 31, the reporter states the question involved to be whether the Act there impugned was or was not repugnant to the It. N. A. Act a strictly accurate way of putting it, but in these days not followed. ‘I’Hi: DIVISION OF THE FIELD. 203 under our federal system, the exercise by the courts of this function, excites no remark, and the cases on this branch of Canadian jurisprudence now fill many volumes. Under the legal system of the British Empire, the ” last word ” upon these questions rests with the Judicial Committee of ^ the Privy Council, and so far as that tribunal has spoken>
^and so far as the principles enunciated in its judgments
j extend, its decisions are binding upon our courts. In a
(number of cases they have determined the position of the
line of division in regard to the subject matters immediately
involved in those cases, and they have likewise enunciated
certain principles which must hereafter guide us in deter-
mining the line of division as to many subject matters with
which they have not directly dealt. Our first duty there-
fore is t r .) examine their judgments. Next in order of
.authority will come the judgments of the Supreme Court
of Canada; then, for each proving, the provincial Court
of final resort in the province, and so on through the whole
range of the judiciary.

Apart from certain sections which confer legislative
powers in reference to the conduct of business in the dif-
ferent legislatures (A;), and in reference to elections (I), the
distribution of legislative power is provided for, in sections
91-95 of the B. N. A. Act. We deal in this place with
sections 91 and 92 only, and have, for convenience of
reference and comparison, placed them side by side.

(k) See sees. 18, 35, 47, 78, 87, etc.; see also 28 & 29 Vic. c. 63, a. 5
(Imp.), and particularly notes to sec. 35.

(/) See notes to sec?. 40, 41, 51, 80, 83, and 84, post.

204 THE CANADIAN CONSTITUTION.

POWERS OF THE PARLIAMENT.

91. It shall be lawful fur the Queen, by and with the advice and consent of
the Senate and House of Commons, to make Laws f^r ^he “fta-^ nrd^HM^d
firooderovernmen^of^Canaida, 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 (notwith-
standing anything in this Act) the Pj^pln^vfl Legislative Authority of the
Parliament of Canada extends to all matters coming within the classes of
.subjects next hereinafter enumerated ; that is to say :

1. The public debt and property.
j 2. The regulation of trade and cojiunerce.

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 officers of the Government of Canada.

9. Beacons, buoys, lighthouses, and Sable Island.

10. Navigation and shipping.

11. Quarantine and the establishment and maintenance of Marine Hos-

pitals.

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.

|T , 21. Bankruptcy and Insolvency.

22. Patents of invention and discovery.

23. Copyrights.

24. Indians and lands reserved for the Indians.

25. Naturalization and aliens.

^20. Marriage and Divorce. “*”‘*”

27. The Criminal JJaV, except the Constitution of Courts of Criminal Jur-

isdiction, but including the procedure in criminal matters.

28. The establishment, maintenance, and management of penitentiaries.

r 29. Such Classes of subjects as are expressly excepted in the enumeration
of the classes of subjects by this Act assigned exclusively to the
Legislatures of the Provinces.

And any matter coming within any of the classes of subjects enumerated in
this section shall not be deemed to come within the class of matters of a local
or private nature comprised in the enumeration of the classes of subjects by
this Act assigned exclusively to the Legislatures of the Provinces.

THE DIVISION OF THE FIELD. 205

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 :

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.
. Direct taxation within the Province in order to the raising of a revenue
for Provincial purposes. (x^ B f] f j r f ^a~~~C*~ J?. ts^CE-)

3. The borrowing of money on the sole credit of the Province.

4. The establishment and tenure of Provincial offices, and the appoint–

ment 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 Re-

formatory Prisons in and for the Province.

7. The establishment, maintenance, and management of Hospitals,

Asylums, Charities, and Eleemosynary Institutions in and for the
S Province, other than Marine Hospitals,
f 8. Municipal Institutions in the Province.

9. Shop, saloon, tavern, auctioneer, and other licenses in order to the

raising of a Revenue for Provincial, Local, or Municipal purposes.

10. Local works and undertakings other ^han such as are of the following

/

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 bej’ond the limits of the Province ;

6. Lines of steamships between the Province and any British
or foreign country ;

c. Such works as, although wholly situate within the Province,
are before or after their execution declared by the Parlia-
ment of Canada to be for the general advantage of
Canada, ^r_fr>r tih” id vantage of two or mnrr* f^f the
Provinces.

11. The incorporation of Companies with Provincial objects.

12. The solemnization of marriage in the Province.

13. Pjjygerty and civil^ights in the Province.

14. The administration of justice in the Province, including the constitu-

tion, maintenance and organization of Provincial Courts, both of
civil and of criminal jurisdiction, and including-pcocedure in civil
matters in those Courts.

15. The imposition of punishment by tine, penalty, or imprisonment for

enforcing any law of the Province made ‘in relation to any matter
coming within any of the classes of subjects enumerated in this
section.

16. Generally all matters of a merely local or private nature in the

Province.

206 THE .CANADIAN CONSTITUTION.

A perusal, the most cursory, of the classes enumerated
in the various sub-sections (in) of these two sections, reveals
that if, in every case, the full natural meaning is to be given
to the words employed, the classes must inevitably over-
lap. But the Act is clear that the jurisdiction in each
case is (‘.i’duxi rv (n), 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 the sections is
to be so read as to give to the language used in every one
of its suit-sections its full natural meaning, the other section
must necessarily be read as a subordinate section, and the
iiK’Miiiiio- of its various sub-sections so limited as to exclude

o

those subject matters monopolized by the various sub-sec-
tions of the favored section. If neither section is to be
set up as a favorite, by what rule or rules are we to be
guided in reconciling them ? For, reconcile them we must,
if the jurisdiction in each case is exclusive. The first
method was favored by the earlier decisions of our Supreme
Court. Section 91 was setup as the predominant section,
and this formula was suggested, and practically adopted
by the majority of the court, as an unerring guide to the
determination of the line of division as to any given sub-
ject matter :

” 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 exclusively assigned
to the local legislatures, unless it be within one of the subjects
expressly enumerated in section 92, and at the same time <l<‘s not
i moire any interference irith any of the sulijectfi enumerated hi
section 91 ” (<>}.

(TO) Strictly speaking, they are not sub-sections, but it is convenient
to speak of them as such.

(n) See ante, p. 67, for a suggested interpretation of this word. In
addition to the authorities there referred to, s.ee Todd, ” Parl. Gov. Brit.
Col.” p. 189, et seq.

(o) Per Gwynne, J., in City of Frederiokton v. Reg. 3 S. C. R. at p.
568; and see CitizenjrxJEarsons, 4 S. C. R. at p. 330.

THE DIVISION OF THE FIELD. 207

Had this rigid formula been finally adopted, the posi-
tion of a province would have been that of a very minor
municipality, and the union of the provinces legislative
rather than federal. Its adoption by the Supreme Court
was largely owing to a misconstruction of the closing words
of section 91. “The class ^of matters of a local or private
nature ” was held to refer to and embrace the whole of the
sub-sections of section 92, although the singular number is
used in immediate contradistinction to the plural ” the
class . compiled in the enumeration of the classes”

and although thJ? grammatical reference to sub-section
16 only of section 92, had been clearly recognized in an
earlier judgment of the Judicial Committee of the Privy
Council (j>). The labors of the courts would certainly
have been materially lightened, had that Committee ac-
cepted this formula. While, in a sense, it reconciled sections
91 and 92, it did away with any necessity for an attempt
to reconcile their respective sub-sections. Fortunately for
the provinces, the Committee has decisively rejected this
formula, while at the same time (as we shall see) adopting ;
it up to a certain* point as a method of inquiry. The view
of the Committee is set out in a case (q) which must now
be considered classic on this vital question, in the folloAving
language :

” The scheme of this legislation, as expressed in the first
branch of section 91, is to give to the Dominion parliament,
authority to make laws for the good government of Canada in all
matters not coming within the classes of subjects assigned
exclusively to the provincial legislature. If the 91st section had
stopped here, and if the classes of subjects enumerated in section ,
92, had been altogether distinct and different from those in sec-
tion 91, no conflict of legislative authority could have arisen ^
The provincial legislatures would have had exclusive legislative

(2)) L’Union St. Jacques v. Belisle, L. R. 6 P. C. at p. 35. See the
reporter’s way of putting it at p. 33 ; and see note| tf^he final clause of
sec. 91, post.

(q) Citizens v. Parsons, 7 App. Cas. 96,

208 THE CANADIAN CONSTITUTION.

power over the sixteen classes of subjects assigned to them, and
the Dominion parliament exclusive power over ajl other matters
relating to the good government of Canada But it must have
been foreseen that this sharp and definite distinction had not
been and could not be attained, and that some of the classes of
subjects 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 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 (notwith-
standing anything in the Act) the exclusive legislative authority
of the parliament of Canada should extend to all matters coming
within the classes of subjects enumerated in that section. With
the same object, apparently, the paragraph at the end ejection
91 was introduced, though it may be observed that this para-
graph applies in its grammatical construction only to No. 16 of
section 92.

” Notwithstanding this endeavor to give pre-eminence to the
Dominion parliament in cases of a conflict of powers, it is obvious
that in some cases where this apparent conflict exists, the legis-
lature could not have intended that the powers exclusively as-
signed to the provincial legislature, should be absorbed in those
I given to the Dominion parliament. Take as one instance, the sub-
ject ‘marriage and divorce,’ contained in the enumeration of
subjects in section 91 ; it is evident that solemnization of mar-
riage would come within this general description ; yet ‘ solemni-
zation of marriage in the province ‘ is enumerated among the
classes of subjects in section 92, and no one can doubt, notwith-
standing the general language of section 91, that this subject is
still within the exclusive authority of the legislatures of the
provinces (r). So ‘ the raising of money by any mode or system of
taxation ‘ is enumerated among the classes of subjects in section
91 ; but, though the description is sufficiently large and general
to include ‘ direct taxation within the province, in order to the
raising of a revenue for provincial purposes,’ assigned to the

(r) See 3 S. C. R. at pp. 568-U where Mr. Justice Gwyrme seeks to fit
the formula above quoted to these two sub-sections.

THE DIVISION OF THE FIELD. 209

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 (s). With regard to certain classes T
of subjects, therefore, generally described in section 91, legisla-
tive 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 of the courts, however
difficult it may be, to ascertain in what degree, and to what ex-
tent, authority to deal with matters falling within these classes
of subjects exists in each legislature, and to define in the partic-
ular 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 be read I
together, and the language of one interpreted and, where necessary A
modified by that of the other. In this way it may, in most cases,
be found possible to arrive at a reasonable and practical construc-
tion of the language of the sections, so as to reconcile the res-
pective 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 v
can, without entering more largely upon an interpretation of the
statute than is necessary for a decision of the particular question I
in hand.

The first question to be decided is, whether the Act impeached
in the present appeal (t) falls within any of the classes of sub- \
jects enumerated in section 92, and assigned exclusively to the
legislatures of the provinces ; for if it does not, it can be of no
validity, and no other question would then arise. It is only when
an Act of the provincial legislature prima facie 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 jiower of the provincial legislature is, or
is not, thereby orerborne.”

The part italicized* constitutes the essential distinction
between the formula already quoted, and the method of
enquiry adopted by the Judicial Committee of the Privy

(s) See notes to sec. 91, s-s, 8, post. (t) A provincial

CAN. Cox. 14

210 THE CANADIAN CONSTITUTION.

Council. The formula did away with all necessity for the
third enquiry, and, by consequence, with, as we have said,
all necessity for a reconciliation of the various sub-sections
of sections 91 and 92.

The statute impugned in the case from which we have

quoted, was a provincial Act, but in another case in the

! same volume (u), the very same method of enquiry was

I adopted in reference to a Dominion Act, and has since been

reaffirmed by the same tribunal as proper in regard to both

Dominion and Provincial legislation. The propriety of this

method of enquiry was finally established when the

exhaustive character of the division effected by the B. N. A.

Act was definitely enunciated (v).

Although the Judicial Committee of the Privy Council

has frequently reiterated the caution against ” entering

more largely upon an interpretation of the statute than is

‘ necessary for the decision of the particular question in

hand,” and in a late case (w) has laid down, that courts of law

” must treat the provisions of the Act in question by the

same methods of construction} and exposition which they

apply to other statutes,” tHeir judgments do lay down a

I number of rules of construction applicable to the elucidation

of these two sections of the B. N. A. Act, which, even if not

exclusively applicable to this statute, are certainly peculiarly

helpful in interpreting its meaning.

(a) The sections must be read together, and the lanyu<j<‘ of the one interpreted, and, where necessary, modified by tin it of the other (x). This rule is not to be limited to a comparison and reconciliation of one sub-section of section 91, with an apparently conflicting sub-section of section 92. In order (u) Russell v. Reg., 7 App. Cas. 829 ; at p. 836. (v) See ante, p. 201. (10) Bank of Toronto v. Lambe, 12 App. Cas. at p. 579. (x) Citizens v. Parsons. 7 App. Cas. 96 ; see the entire passage quoted, ante, p. 207, et seq. THE DIVISION OF THE FIELD. 211 ito arrive at the meaning of any sub-section of (say) section .91, the other sub-sections of that same section must be examined. As a result of such examination, there has been suggested what may be called a sub-rule of construction which has been applied in a number of cases to limit the scope of some, at least, of the sub-sections of section 91. In one of the earliest cases (y) which came before the Judicial Committee of the Privy Council, involving con- sideration of sub-section 21, of section 91, “bankruptcy and insolvency ” the Committee speaking generally of section 91 say : ” Their Lordships observe that the scheme of enumeration in that section is to mention various categories of general subjects which may be dealt with by legislation. There is no indication i’ any instance of anything being contemplated, except what may be properly described as general legislation ; such legislation as is well expressed by Mr. Justice Caron, when he speaks of the general laws governing Faillite, bankruptcy and insolvency, all which are well-known legal terms expressing systems of legislation, with which the subjects of this country and probably of most other civilized countries are perfectly familiar. This language was used, as we have said, in reference to section 91 generally, and has never been adversely criticized in subsequent judgments of the Committee. The principle has been applied to a number of the other sub- sections of section 91. In the very case from which the rule is quoted, the meaning of the terms, ” regulation of trade and commerce” (z) was restricted: (1) because their collocation with classes of subjects of national and general concern, affords an indication that regulations relating to general trade and commerce were in the mind of the legis- lature when conferring this power on the Dominion par- liament; and (2) because unless intended to have a limited meaning they would have rendered unnecessary the sub- (y) L’Union St. Jacques v. Belisle, L. E. 6 P. C. 31 at p. 36. (2) s-s. 2 ; see the notes to this s-s. 212 THE CANADIAN CONSTITUTION. sections dealing with, e.fj., banking, weights and measures, negotiable instruments, etc. (a). So in reference to legisla- tion relating to navigation and shipping (/>); but just how
far this rule of construction is to be applied to each one of
the various sub-sections of section 91, is matter of doubt,
as a reference to the various cases which have arisen and
been decided under those various sub-sections will disclose.

Reverting however to the rule above laid down, so far
as it enjoins a comparison of the various sub-sections of
section 91 with apparently conflicting sub-sections of
section 92, and vice versa, we may point out that the
passage we have quoted from Citizens v. Parsons affords
two instances of its application, and we need not in this
place enlarge upon the rule, as very few cases arise which
do not call for its application.

(b) In order to arrive at the proper meaning of the
‘a i’ i OILS sub-sections of these two sections, other parts of the
B. N. A. Act, and of other Imperial Acts, in pari mater ia
i nay be looked at (c).

For example, in construing sub-section 2 of section 91 >
the meaning proper to be given to the terms, “regulation of
trade and commerce,” was to a certain extent determined
by the meaning given to a somewhat similar phrase in the
Union Act which joined Scotland to England in legislative
union (d), and the meaning to be given to the 13th sub-
section of section 92, “property and civil rights in the pro-
vince/’ was elucidated by reference to the same phrase in
section 94 of the B. N. A. Act, and in section 8 of the
Quebec Act, 1774 (e).

(c) The true nature. llu’ JKI rfi<-ii(<it’ iiiNftmrv under discussion, must ^//r,/yx 1><>

(a) 7 App. Gas. at p. 112.

(b) See notes to sec. 91, s-s. 10, post.

(c) Citizens v. Parsons, 7 App. Cas. 96.

(d) See the passage quoted in the notes to sec. 91, s-s. 2, post.

(e) See note (e) ant*’, p. fl(i ; and notes to sec. 92, s-s. 13, po*t.

THE DIVISION OF THE FIELD. 213

determined in order to ascertain the class of subject to
which it really belongs, or, in other words, what is the I
primary matter dealt with? (/).

Applying this rule of construction, the Judicial Com-
mittee of the Privy Council held (g) that- the Canada Tem-
perance Act was not legislation on the subject of licenses
or relating to civil rights in a province, but general legisla-
tion for the order and good government of the Dominion;
that the Act respecting uniform conditions in fire insurance
policies, was legislation respecting ” property and civil
rights in the province,” and not respecting “the regulation
of trade and commerce ” in the proper sense of the latter
sub-section (h); that the imposition of a stamp duty on
policies of insurance was not a license Act, although so.
called in the impugned statute (i)\ that an Act for levy-
ing a rate to pay a bonus to an existing railway, ^fenot
an Act respecting “local works and undertakino^PKind
therefore was not subject to the exceptions mentioned in
the sub-section dealing with those matters (j) that an Act
in regulation of the internal affairs of a particular corpora-
tion was not a bankruptcy or insolvency Act (&).

(d) If, on the due construction of the Act, a legislative
power be found to fall within either section, it would be :
quite wrong to deny its existence because by some possibi-*
lity it may be abused, or may limit the range which %
otherwise would be open to the other legislature (7).

(e) Subjects which in one aspect and for one purpose
fidl within section 92, may, in another aspect and for
another purpose, fall within section 91 (in).

(/) Russell v. Reg., 7 App. Cas. 829; at p. 839.
(()} Russell v. Reg., ubi supra,
(h) Citizens v. Parsons, 7 App. Cas. 96.
(/) Reed v. Atty.-Genl. of Quebec, 10 App. Cas. 141.
(j) Dow v. Black, L. R. 6 P. C. 272 ; see notes to sec. 92, s-s. 2.
(/c) L’Union St. Jacques v. Belisle, L. R. 6 P. C. 31.
(I) Bank ofJToronto v. Larabe, 12 App. Cas. at p. 587.
Hodge v. Reg., 9 App. Cas. at p. 130.

214 THE CANADIAN CONSTITUTION.

We deal with these two rules together, because they
both suggest the existence of possibly concurrent powers (ri)r
probably the most perplexing question which arises under’
these sections of the B. N. A. Act. In order to deal inteh
ligently with this question, we must endeavor to get a clear
idea of the meaning of the phrases ” conflict of laius” and
” concurrent powers” Any case which comes up for
judicial decision involves the application of law r to facts-
The law applicable 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 presumedly of a
definite, absolutely correct determination. As to any one
of these legal relations there cannot be a conflict of la^
Of any number of laws put forward as determining the
” legal relation,” one only is the law which governs. The
views of advocates, and even judges, may conflict, but the
law, though it may be, from time to time, varied at the will
of the law-making body in the state, is, at any given moment
of time, a thing certain. It follows that there cannot be
two statutes determining, in different ways, any one of the
legal relations which is to arise from any given state of
facts. If there be two statutes purporting so to do, one of
them must be of no legal effect, either because repealed by ..
the other (o), or by some rule of law made subordinate
thereto as to the particular legal relation. It follows, too.
that, unless “chaos” has come again,” there cannot be in
two legislative bodies concurrent powers of legislation in /
reference to the same legal relation, in the sense, that in/7*
the same moment of time the enactment of each is law ( pjtf

(n) Jessel, M.K.had suggested this, in Atty.-Gen. of Quebec v. Queer/
Ins. Co., 3 App. Cas. at p. 1097.

(o) This is sometimes discussed as a conflict in time ; the other as a
conflict in space.

(p) See however per Wilson, J., in Reg, v. Taylor, 36 U. C. Q. B. at;
p. 206.

THE DIVISION OF THE FIELD. 215

This is recognized in the B. N. A. Act, for in section 95 ,
where powers of legislation are given, over the same subject
matter, to both the Dominion and the Provincial legisla-
tures, there is the express provision that the legislation is I
not to be concurrent ; that the enactment of a Provincial \
legislature is to be law, only in the absence of Dominion leg-
islation upon the subject matter. The first of the two rules
at the head of this paragraph, would seem to indicate that
in the view of the Judicial Committee of the Privy Coun-
cil, the absence of legislation by.one legislature, Dominion or
provincial, upon the particular subject matter may increase
the range open to the other. This view has to be reconciled
with the use of the term ” exclusive power,” in reference to
each enumeration of classes of subjects; or, if there “is no
possible mode of reconciliation, the view of the Privy Council
must be an unsound obiter. The way of escape seems to be
suggested by the second of the rules at the head of this
paragraph. The different aspects any given subject may
present, have reference to the different ‘legal relations’ that
may arise, or (from a legislative standpoint) be created in
connection with that subject. Now, these two sections of
the B. N. A. Act, deal with the various enumerated classes
qf subjects, not as divisions of facts, but as divisions of legal
relations. Insolvency, for example, is not a fact at all ;
civil rights are not facts both are legal relations arising
out of a certain juxtaposition and co-relation of facts.
Without unduly enlarging upon this theme it seems to us
that a correct appreciation of this principle of division will
help to make clear just in what sense legislation by one
legislature (Dominion or Provincial) may lessen the range
open to the other ; in what sense the legislation of one may
interfere with the legislation of the other. In the case from
which the first of the rules now being discussed is quoted^
that rule was applied to uphold the taxation of banks by
provincial legislation (under section 92, s-s. 2), notwithstand-
ing that “banking, the incorporation of banks, and the issue 7
of paper money,” is one of the classes of subjects assigned j

216 THE CANADIAN COXSTITITIOX.

to the exclusive ken of the Dominion parliament. Should
the Dominion parliament repeal all existing laws upon this
head, the legal relation a bank would be non-existent,
could not be created by provincial legislation, and could
not be seized upon, therefore, in order to attach to it the
further legal relation of liability to pay taxes to the pro-
vincial treasury. And on the other hand, an excessive tax
upon banks might possibly operate to prevent the co-
relation of facts arising in any particular instance, upon
which Dominion legislation might attach. No subject
matter has been more fruitful in producing cases for
decision under the B. N. A. Act, than the liquor traffic (q),
The Judicial Committee of the Privy Council has in
effect held (r) that the Dominion parliament may create
such legal relations out of the facts of the liquor traffic, as
to prevent the creation by provincial legislation of other
legal relations out of the same facts ; or perhaps we should
rather say, the Dominion parliament has power to prevent
the facts themselves from having any existence capable of
legislative recognition by a provincial legislature.

In an earlier case the extent of the power of the Do-
minion parliament along the line of bankruptcy and insol-
vency was authoritatively enunciated by the same tribunal
(s), and the power of the provincial legislatures along the
same line, (now that we have no Dominion law upon this
subject) has been frequently discussed. It is submitted
that in the absence of legislation by the Dominion parlia-
ment, creative of any such legal relation as bankruptcy
or insolvency, the provincial legislatures have full power
(under section 92, sub-section 13 “property and civil rights
in the province “) to create such legal relations out of the
facts of commercial life as to ensure, if deemed expedient,

(q) See notes to sec. 91, s-s. 2, and sec. 92, s-s. 8 and 9.

(r) Russell v. Reg., 7 App. Gas. 829.

(x) Cashing v. Dupuy. 5 App. Gas. 409, at p. 415 ; and see L’Union
St. Jacques v. Belisle, L. R. 6 P. G. 31, at p. 3i> ; and notes to -sec. 91
s-s. 21, pout.

THE DIVISION OF THE FIELD. 217

the equitable distribution of the estate of a man whose
assets do not cover his liabilities, and to ensure also the dis-
charge of the debtor from the balance of such liabilities-
In the absence of legislation by the Dominion, no set of
facts can constitute a legal relation to be known as bank-
ruptcy or insolvency ( t). By creating such a legal relation,
to arise from such co-relation of facts as to the Dominion
parliament might .seem meet, the power of the provincial
legislatures would be curtailed. Any attempt to state the
essential elements of bankruptcy and insolvenc}^ legislation
outside of a legislative definition of those terms, leaves one
about as much in the dark as does Milton’s description of
Death.

(f ) The presumption, in any given case, is in favor of
the validity of an impugned Act.(^] 4

In the celebrated case (u) involving the validity of the
Dominion Controverted Elections Act, 1874 the Judicial
Committee of the Privy Council laid down the rule in this
language :

” 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. One of the latest expressions of the rule is that
” in cases of doubt every possible presumption and intend-
ment will be made in favor of the constitutionality of the
Act” (v). It does not apply to an Act, the language of
which is unambiguous, 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 statute as to uphold its validity,

(t) ” Persons who may become bankrupt or insolvent, according to
rules and definitions prescribed Inj law ” L. K. 6 P. C. at p. 36.
(u) Valin v. Langlois, 5 App. Gas. 115.
(v) leg. v. Wason, 17 O. A. R. 221 ; per Burton, J.A , at p. 235.

218 THE CANADIAN CONSTITUTION.

for a legislative body must be held to intend to keep within
its powers. No stronger instance of the application of this
principle of interpretation could be cited than that afforded
by the very recent case which came before the Judicial
Committee of the Privy Council, from New South Wales
(w). The legislature of that colony had enacted :

” 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 for seven
years.”

The Lord Chancellor (Lord Halsbury), in delivering the
judgment of the Committee, says :

In the first place it is necessary to construe the word ‘whoso-
ever’ ; and in its proper meaning it comprehends all persons all
over the world, natives of whatever country. The next word which
is to be construed is ‘ wheresoever.’ There is no limit of person
according to one construction of ‘ whosoever,’ and the word
‘ wheresoever,’ is equally universal in its application. Therefore,
if their Lordships construe the statute as it stands, and upon the
bare words, any person married to any other person, who marries
a second time anywhere in the habitable globe, is amenable to
the criminal jurisdiction of New South Wales, if he can be
caught in that colony. That seems to their Lordsbips to be an
impossible construction of the statute ; the colony can ha\e no
such jurisdiction, and their Lordships do not desire to attribute
to the colonial legislature an effort to enlarge their jurisdiction
to such an extent as would be inconsistent with the powers com-
mitted to a colony, and, indeed, inconsistent with the most
familiar principles of international law. It therefore becomes
necessary to search for limitations to see what would be the
reasonable limitation to apply to words so general ; and their
Lordships take it, that the words, ‘ whosoever being married,’
mean, ‘ whosoever being married, and who is amenable, at the
time of the offence committed, to the jurisdiction of the colony of

New South Wales.’ * Wheresoever ‘ may

be read, ‘ wheresoever in this colony ‘ It appears

to their Lordships that the effect of giving the wider interpretation

(w) Macleod v. Atty.-Genl. of N. S. W., A. C. (1891) 455.

THE DIVISION OF THE FIELD.

to this statute would ba . that the statute was ultrrt

vires of the colonial legislature to pass. Their Lordships are far
from suggesting that the legislature of the colony did mean to
give to themselves so wide a jurisdiction.” ^\^’

A ^ neat way of ” letting them down easy ! ” I What
the colonial legislature did really intend can hardly
be matter of doubt, but, in favor of validity, it was held
that they could notQj^everNsupposed to have intended to
go beyond the limits of their legislative competence (x).

The B. N. A. Act, as we all know, is largely founded ,
on the resolutions of the Quebec Conference, and the
question naturally arises, how far may these resolutions be
looked at in interpreting the B. N. A. Act ? Canadian
judges have frequently quoted from the resolutions, and
have utilized them to aid in the construction of doubtful
passages in the Act ; but it is worthy of note that the
tribunal of last resort the Judicial Committee of the
Privy Council has never made reference to them in its
judgments. In the decision of questions strictly legal
such as would come before the courts rather than before
the legislatures these resolutions can afford, at all events
at this date, very little assistance, and at the most only in
the absence of all light from other parts of the statute, or
in cases perhaps where these resolutions might clearly sup-
port or negative one of two possible interpretations. The
fact that the B. N. A. Act must be judicially interpreted as
expressing the will of the Imperial parliament, rather than
of the federating provinces, tends to make it very doubtful

(x) See, also, Atty. Genl. for Canada v. Atty. Genl. of Ontario, 20
O. R. at pp. 245-6, and 19 O. A. R. at p. 33. Many other canons of con-
struction will be found throughout the cases which have involved con-
sideration of the B. N. A. Act. See notes to the various sections, post.
In this place wa havs endeavored to gather into one chapter the most
important of those rules which aid in the determination of the line of
division between the Dominion and the Provinces. It should perhaps be
noticed here that the Judicial Committee of the Privy Council have not
been unmindful of ;the large political character of the B. N. A. Act.
See Atty. Genl. of Ont. v. Mercer, 8 App. Cas. at p. 778.

220 THE CANADIAN CONSTITUTION.

how far, if at all, it is proper to refer to these resolutions.
The fact, too, that they were subjected to revision by the
delegates from the various provinces, at London, renders
them still more unreliable as legal guides to the interpre-
tation of the -B. N. A. Act.

There is another matter which merits mention in this
place, the extent, namely, to which we may avail ourselves
of the judicial decisions of the American Courts particu-
larly of the Supreme Court of the United States upon
cases involving inquiry 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 study of
our Act (y). The real difficulty, the risk even, in utilizing
them for purposes 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 legislature can legislate (z) ;
and so, under the American system, there are certain laws
which neither Congress nor a State legislature can pass.
But there is not the slightest ground for comparison aw to”f
the nature and character of the subjects which are with-
held from the legislative competency of our legislatures
and theirs, respectively. We are debarred from legislating
upon certain matters, because those matters are deemed ‘
to be of Imperial concern, while, on the contrary, the legis-
lative power of both Congress and the State legislatures is
circumscribed in favor of individual liberty (</); and in some of the State constitutions, more lately adopted, the limitations on the legislative power of the State legislature certainly go to very extreme lengths (b). It cannot be said, therefore, in reference to the American system, that (//) See the remarks of Hagarty, C.J., in Leprohon v. Ottawa, 2 O. A. R. at p. 533. (z) See Chap. IX. ante. (a) See Art. I. sees. 9 and 10. (J>) Bryce’s ” American Commonwealth,” Appx.

THE DWISION OF THE FIELD. 221

if power over a certain subject matter is not with Congress I
it must be with the State legislatures, for it may be with j
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 aggre-
gates, have likewise limited the sphere of authority of the
different State legislatures. The matters allotted to
Congress are, in a sense, specially enumerated, the unenu-
merated residuum being reserved (subject to certain
prohibitions set out in the Constitution of the United
States) (c) to the States or to the people ; but the State
legislatures again may be, and in many cases are, under the
State constitutions, 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. Confin-
ing our attention to Congress, we have to point out, what
has been before referred to (d), that after the enumeration
of the special matters (themselves described in very com-
prehensive terms) over which Congress is to have legisla-
tive power, there follows this clause (e) :

” 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^ 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 warrant one in
drawing analogies between the line of division they have
adopted and that drawn by the B. N. A. Act. The Judicial
Committee of the Privy Council, while not slow to express

(c) Art. I., sec. 10. (d) Ante, p. 9. (e) Art. I , sec. 8.

222 THE CANADIAN CONSTITUTION.

their admiration for the Supreme Court of the United
States, and the eminent jurists who from time to time have
occupied seats in that tribunal, have always deprecated
any attempt to draw analogies between the Canadian and
the American systems. The view of the Committee is thus
expressed in a late case (/) :

” 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 constitution 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 Marshall found one of those limits at
the point at which the action of the state legislature came into
conflict with the power vested in Congress. The appellant
invokes that principle to support the conclusion that the Feder-
ation Act, must be so construed as to allow no power to the
provincial legislatures, under section 92, which may by possi-
bility, and if exercised in some extravagant way, interfere with
the objects of the Dominion in exercising their powers under
section 91. It is quite impossible to argue from the one case to
the other.”

This passage suggests that, in the view of the Com-
mittee, the absence of the power of disallowing State
legislation may have led the United States courts to
scrutinize that legislation more closely, and may Imvo
caused the adoption of the wide interpretation of the
article of the ” Constitution ” above quoted.

(/) Bank of Toronto v. Lambe, 12 App. Gas. at p. 587.

CHAPTER XL-

OUR JUDICIAL SYSTEM.

We have thus far treated of government as divisible
into two chief departments law-making and law-executing
and have not deemed it expedient to complicate the dis-
cussion by reference to any further sub-divisions of these
two departments. There is however a very distinct division
of the executive department into branches, administrative
and judicial ; the former concerned with what we may call
the ordinary administration of public affairs, while upon
the latter devolves the duty of expounding, applying and
enforcing law between litigants (a).

Tribunals for the administration of justice are an indis-
pensable adjunct of any system of civilized government,
and if there can be degrees of importance in connection
with such a matter, we would say that in every country
where government is a government-according-to-law, due
recognition of the authority of the courts is of vital im-
portance to good government ; and particularly is this the
case where the field for the exercise of the functions of
government, both legislative and executive, is divided, and

(a) Of late years there is apparent a tendency to clothe the judiciary
with what may be termed ” advisory ” functions, in aid of the Executive.
See B. S. C. c. 135, ss. 37 and 38, and cases noted in Cassel’s Dig.; K. S. O.
c. 44, s. 52, s-s. 2 ; Attorney-General for Canada v. Attorney-General for
Ontario, 20 O. K. 222 ; 19 O. R. 31. Also see B. S. O. c. 225 ; In re B. C.
Separate Schools, 18 O. B. 606. The policy ol this innovation is ques-
tionable. The Courts of the United States have steadily declined to
exercise any such functions. See Mich. Univ. Law Lectures, 1889.

224 THE CANADIAN CONSTITUTION.

where, in consequence, the courts have necessarily to decide
on the validity or invalidity of legislative enactments, and
of executive action founded thereon (lj).

The decision of any case which may come before a court
of law, involves the application of law to the facts as they
may be admitted, or judicially determined, to exist. Out
1 of every fact, or set of facts there arise ” legal relations,”
and, as was pointed out in the last chapter (c), there can
be no conflict of la^w in reference to any given legal rela-
tion, for the Jjiw applicable to any given circumstances
to any stated facts is presumedly capable of definite
exposition. It may happen, therefore, that in a case arising
in a Canadian court, the law which governs the legal rela-
tions which arise out of the facts of the case may be, not
the law laid down in either Dominion or Provincial statutes ;
not, strictly speakly (d), the law of Canada at all ; not even
Imperial law ; but the law of a foreign country. In
accordance with that comity between nations, which is now
recognized by the tribunals of all civilized countries, those
tribunals do not, where the facts out of which the litigation
arose occurred in a foreign country, limit the enquiry to
what is the law which would govern in case those facts
had occured within its own territory. Indeed, in criminal
matters, that is to say, where a person is being prosecuted
for acts committed abroad, English courts have laid down
the rule that such prosecution can only be had in the
country where the crime was committed. The administra-
tion of international justice, if we may use the expression,
is secured in such a case, by handing over the alleged
offender to the officers of the country in which the offence
is alleged to have been committed : and the jurisdiction of
English tribunals has been limited to a preliminary enquiry
MS to the existence of a /;//’ m civil matters, the tribunals of most civilized states do not

(b) See ante, p. 172. (c) See ante, p. 214.

(d) In a sense, the rules of international law are part of the jurispru-
dence of nearly every civilized state.

OUR JUDICIAL SYSTEM. 225

recognize any such local venue for their trial. It is beyond
the scope of this work to enumerate the various conditions
precedent to jurisdiction, laid down in the jurisprudence of
the different civilized states, but in all such actions as the
courts do entertain, they give effect to legal rights and
obligations which may arise out of transactions occurring
abroad ; and it may happen, therefore, that any modern
tribunal may be called upon, at times, to determine, and
practically to administer, the law of a foreign country (e).

Every tribunal is, in a sense, subject to territorial limits/
of jurisdiction. It would be inconsistent w T ith the sover-
eignty of the different states into which this world is
divided, were the judgments of the courts of any one state
enforcible, proprio vigore, in the others. But, even within
the same state, the territorial jurisdiction of courts of law
may be limited. Their jurisdiction, too, may be in many
other ways limited and defined, by reason of the subject
matter in litigation. Some courts may have jurisdiction
over all classes of matters, and throughout the entire
territory of the state; others again may have the same
wide territorial jurisdiction, but may be restricted to
matters of minor importance, or involving smaller amounts.
But, however their jurisdiction may be limited, territorially j
or otherwise, there may arise for determination by them,;
cases in which the law to be applied is not law laid down’
by the power to which they owe their creation.

There is hardly any line of division founded upon the
nature of the subject matter in litigation, which may not
be, or has not been, adopted in some one country or an-
other; but it is not of importance here to pursue this
general inquiry further. It is of importance to note that,
both in the United States and in Canada, the jurisdiction
of a court may be, and in many cases in the former is,

(e) What is the foreign law in such cases is, in British jurisprudence,
enquired into as a matter of fact, and must be proved by the evidence of
experts versed in such foreign law.
CAN. C<^. 15

22C) THE CANADIAN CONSTITUTION.

limited to the adjudication of causes arising out of matters
within the exclusive competence of- one or other of the
different legislative bodies existing therein. As a qiie*t!<>,-i
of jv/risdiction, therefore, in such case, it may be necessary
to determine just where the line of division between the
different legislatures, should be drawn. In this connection,
Ave may note too, that it may though not of course as a
question of jurisdiction devolve upon Canadian courts to
determine like questions, as to the line of division between
the federal and state legislatures in the adjoining Republic.
It is, however, only in exceptional cases that the jurisdic-
tion of a Canadian court of law will depend upon the
determination of the line of division between the different
‘ Canadian legislative bodies (/). We have dwelt upon these
different considerations in order to make clear that every
court, by whatever authority created, or whatever its juris-
diction, territorially or otherwise may be, may be called upon
to determine, and practically to administer, Imperial law,
Dominion law, Provincial law, or even foreign law, in order
to determine the rights of litigants.

Putting it broadly, a court of law may be said to be
an organization created with a view to the determination
of facts, and the exposition and enforcement of the law
applicable to those facts, between parties who are at
variance upon these points. In the performance of its
duty, certain procedure has to be adopted, and a certain
administrative staff has to be made part of this organiza-
tion in order to secure the enforcement of the judgments
of the court. Over these again may be established appel-
late courts. But whatever the details of the organization
may be, and aside altogether from* the question what
tjovernment should create courts, or whether both Dominion
and Provincial governments should have such power, it
would seem expedient, to say the least, that’ th_\y,IjLQle
‘matter of the constitution of ;my ^iven court should be in

(/) See pott, p. 229.

OUR JUDICIAL SYSTEM. 227

tthe hands of one and the same government ((/). If differ-
^ent parts of the machinery of any court are supplied to it
by different authorities, it must necessarily be a very
difficult matter to fix responsibility^ for a miscarriage of
justice in any given case, unless the cause of such mis-
carriage can be definitely located, and be decisively assigned
to some particular part of the machinery of the court.

The Imperial parliament, as the supreme power in
-government throughout the British Empire (h), may
– establish courts within the limits of any one of the colonies
of Great Britain, and, as a matter of fact, we have, in
Canada, Vice- Admiralty courts of Imperial creation, the
jurisdiction of which is defined by Imperial statutes. What
we must note is that in administering law within the sphere
of their jurisdiction, these Vice-Admiralty courts are not
limited to the enforcement of Imperial law, but must,
should occasion arise (as it may in any court of law),
expound and practically administer Canadian law (%$._
But, with the exception of the special class of cases which
come before those courts, the administration of justice,
using that term in its widest sense, in Canada, is left to
courts of Canadian creation.

At the date of Confederation, there were in existence, in
the different provinces, a large number of courts of law
and, for some years thereafter, the administration of justice
throughout Canada was in ihe hands of these provincial
courts, sec. 129 of the B. N. A. Act expressly pro vidu^^ that
all laws an(l_ all courts of civil and criminal juriMXtion,
and all legal commissions, powers, and authorities, and
all officers, judicial, administrative and ministerial, existing
in the different provinces at the Union, should continue as
if the Union had not been made. Except, therefore,

(g) Seepostrp. 234 and notes to B. N. A. Act, sec. 91, s-s. 27, and sec.
4)2, s-s. 14, and sec. 96, et seq.
(h) See Chap. IV., ante.
(I) Redpath v. Allen, L. R. 4 P.O. 511 ; see ante, p. 195

228 THE CANADIAN CONSTITUTION.

otherwise provided in the Act ( j), and subject to any
changes which have since been made in the organization of
these courts, the limits of their jurisdiction are, in principle,
‘in no wise altered. Any alteration in the jari^l Idioii of
these pre-Confederatioii provincial courts over matters
within the legislative competence of the Parliament of
Canada can, it is submitted, be effected only by Dominion
legislation (/,;). Until so altered their jurisdiction continues
” subject nevertheless , . . to be . . altered by the
Parliament of Canada or by the legislature of the respective
province, according to thv authority of the Parliament or of
that l(> volume if we were to attempt to enumerate these different
courts, or to indicate their different jurisdictions. We
may Bay, how r ever, that there were in all the provinces,
courts modelled upon the principle of the Superior Courts
of law in England, whose jurisdiction territorially was
limited only by the boundaries of the respective provinces
in which they were established, and under these, and as a
rule subordinate to them, were various other courts whose
jurisdiction was limited as to the class of matters which
might be entertained by them (without territorial limita-
tion) (I), or was subject to limitations along both lines (,); but,
it is almost unnecessary to say, there was’ 110 limitation of
jurisdiction in any provincial court, along any line identical
with, or in any sense analogous to, the line of division now
existing between matters within the legislative competence
of the Dominion parliament, and the provincial legislative
assemblies, respectively.

If it be permissible to express an opinion as to what
was anticipated by the fimmors of the B. N. A. Act, we

(j) See sec. 101 of the B. N. A. Act and notes thereto; also post, p. 229.
(k) See re Boucher, noted in Cassel’s Dig. S. C. p. 181, and referred
to in the judgment of MacMahon, J., in Reg. v. Toland, noted fost, p. 236.
(I) e.a., County Courts in Upper Canada.
(in) e.</., Division Courts. OUR JUDICIAL SYSTEM. 229 should say thatjjt was intended that, in the main, the] administration of justice, throughout Canada, should be tli rough the medium of these provincial courts, thus con- J tinned. This is clearly evidenced by the assignment to the provinces of the power to exclusively make laws in rela- ; tion to “the administration of justice in the province, in- cluding the constitution, maintenance and organization of provincial courts, both of civil and criminal jurisdiction” (r>).
As, however, cases would inevitably arise, involving con- !
sideration of the powers of the Dominion and Provin- \
cial legislatures respectively, and with a view, perhaps, to
securing uniformity of decision on such important ques-
tions throughout the whole Dominion, the B. N.. A. Act
provides (section 101), that “the parliament of Canada
may, notwithstanding anything in this Act, from time to
time, provide for the constitution, maintenance and organi-
zation, of a general Court of Appeal for Canada (o), and
for the establishment of any additional courts for the’
better administration of the laws of Canada,” The phrase-
ology of the last clause of this section is a clear recognition
of the fact that the provincial courts would necessarily be
called upon to administer the laws of Canada (p) (as dis-
tinguished from the laws of the various provinces), and
the provision was inserted with a view to the better admin-
istration of those Dominion la^vs through the medium of
additional courts established by the Dominion government,
should occasion arise. The jurisdiction of such additional – s
courts, established by the Dominion government, must be
a special jurisdiction, limited to cases arising out of those
matters only which are within the competence of the
Dominion parliament. This is the only case in Canadian
jurisprudence where the jurisdictional line, if we may use

(h) B. N. A. Act, s. 92, s-s. 14.

(o) See R. S. C. c. 135. The Suprema Court of Canada was es-
tablished by 38 Vic. c. 11 (Dom.), and became a court on January 11,
1876; see Reg. v. Taylor, 1 S. C. R. 65.

(p) See Resolutions Nos. 31 and 32, printed in Appx.

230 THE CANADIAN CONSTITUTION.

that expression, is co-incident with the line which divides-*
the legislative powers of the Dominion and the provinces (q)-
The provinces, in establishing courts, may, but are not
bound to adopt any such jurisdictional line. The Dominion
is so limited except in the case of its “general Court of
Appeal” the Supreme Court of Canada,

What has taken place since Confederation, serves to
support the view we have expressed as to what was an-
ticipated by the Fathers of Confederation. The only
additional courts which have been established by the
Dominion government, are the Exchequer Court of Canada,
and the Maritime Court of Ontario, each with a specially
limited jurisdiction, sufficiently indicated by its name (/).
But any duly created courfyno matter by what authority
created, or by what authority the different parts of its
machinery may be supplied, may be called on to determine
cases involving the application of either Dominion or Pro-
1 vincial law ; and this observation applies even to the special
courts of Dominion creation, for, although of limited juris-
diction as above indicated, incidental legal relations, depend-
ing upon provincial laws, may have to be determined in
order to a decision in any given case.

Any government may take advantage of the actual
existence within its territorial limits of an organized court
of law, to impose on its judges and administrative staff’
duties (in relation to matters within its “sphere of author-
ity”) other than those imposed upon them by the power
which created the court, and whether this action is to be

(</) See ante, p. 225-6. (r) Note, however, in re The Bell Telephone Co., 7, O. R. 605 ; in which it was held by Osier, J.A., that a court or judicial tribunal was established by sec. 28 of the Patent Act of 1872, which provided that in case disputes should arise as to the validity of patents (in certain cases), such disputes should be settled by the Minister of Agriculture or his deputy, whose decision should be final ; and that the constitution of such a court was intm vires of the Dominion parliament. See B. N. A. Act, sec. 91, s-s. 22. See, however, 9 O. R, 33″>. We should, perhaps,
refer also to the Revising Officsrs’ Courts under ” The Electoral Franchise.
Act ” as to which see post, p. 240.

OUR JUDICIAL SYSTEM. 231

considered as the creation of a new court, with the machin-
ery of the old, or as the conferring of a new jurisdiction
upon the old, seems to be considered by the Judicial Com-
mittee of the Privy Council, a matter of indifference (s).
The question has come up in various ways, and the
principle must now be considered as authoritatively estab-
lished. As an extreme instance of its application, we
may cite the case of Attorney-General v. Flint (), in
which it was held by the Supreme Court of Canada, that
it was competent for the Dominion parliament to confer
upon the Vice-Admiralty Court, existing in Nova Scotia
under Imperial authority, jurisdiction to entertain pro-
ceedings for enforcing payment of penalties for breaches of
the Inland Revenue Act. It appears to have been the
opinion of some at least of the Judges of the Supreme
Court, that a judge of a Vice- Admiralty court might
decline to take upon himself the burden of such cases, but
the jurisdiction so to do, they held to be beyond question.
It cannot of course be doubted that if the Imperial
parliament, in the exercise of its legislative supremacy,
were expressly to* prohibit such court from entertaining-
other than matters arising under Imperial legislation, such
prohibition would be operative, but in the absence of such
prohibition, it is difficult to see how, as Canadian citizens,
the judges and staff of the court could lawfully decline to
perform the duties imposed upon them by Canadian
law (u).

Prior to Confederation, the (Decision of controverted |
election cases had been entirely in the hands of the differ-
ent Provincial legislatures, and after Confederation the
Dominion parliament exercised the same jurisdiction over

(s) Valin v. Lianglois, 5 App. Cas. 115, passage quoted post, p. 232.

(0 16 S.~c7il. 707. See also ” The Farewell,” 7 Q. L. R. 380.

(n) “Judges as citizens were bound to perform all the duties which
are imposed upon them by either the Dominion or Local Legislature ”
per Dorion, C.J., in Bruneau v. Massue, 23 L. C. Jur. GO.

232 THE CANADIAN CONSTITUTION.

elections to the Dominion House of Commons ; but in
1873-4, the Dominion parliament decided to transfer this
jurisdiction to the provincial courts. Their power so to do
was distinctly upheld by the Judicial Committee of the
Privy Council, (affirming the decision of the Supreme
(Court of Canada) in the well-known case of Yalin^v. Lan-
‘glois (v}, in which Lord Selborne in delivering the
judgment of the Committee says :

” There is therefore nothing here to raise a doubt about the
power of the Dominion parliament to impose new duties upon the
existing provincial courts, or to give them new powers as to
matters which do not come within the classes of subjects assigned
exclusively to the legislatures of the provinces.”
and he afterwards characterizes the distinction which
was endeavored to be drawn between the Act of 1873,
which entrusted the trial of election petitions to the judges
of the Supreme Court, and the Act of 1874, which
entrusted this jurisdiction to the provincial courts, as ” but
a nominal, a verbal, and an unsubstantial distinction.”

The validity of the Act, 31 Vic. c. 76\Dom.), which pro-
vided f oi| utilizing the machinery of th*e ^provincial courts
for the taking of evidence for use before foreign tribunals,
1ms been affirmed by the courts of both Ontario and
Quebec (w).

Somewhat the same question arose in Ontario in the
cases of Wilson v. McGuire (%), and Gibson v. McDonald (//)
County Court judges in that province are appointed by the
Dominion government (z}. Division Courts existed in the
various counties of that province prior to Confederation*
and had always been presided over by the judge of the
County Court of the particular county. By an Act of the

(r) 5 App. Gas. 115, affirming 3 S. C. K. 1.

() In re Wetherell & Jones, 4 O. R. 713 ; Ex parte Smith, 1C L. C.
Jur. 140; and see notes to the opening clause of sec. 91 of the B. N. A.
Act, post .

(.r) “2 O. R. 118. (//) 7 O. R. 401.

(z) B. N. A. Act, sec. 90.

OUR JUDICIAL SYSTEM. 238

Provincial Assembly (a), it was provided, in effect, that
two or more counties might be grouped together for the
purpose of facilitating the conduct of business in the Divi-
sion courts of the grouped counties, and that the judges of
the County courts of those counties might arrange for
taking the work in rotation throughout the entire group.
The validity of this Act was upheld in Wilson v.
McGuire (b). In Gibson v. McDonald, it was held that
a somewhat similar arrangement as to the General Sessions
of the Peace in the different counties of Ontario, was
invalid, and there is no doubt that the correctness of the
earlier decision must be deemed somewhat impugned by
this case. The point on which the latter decision rests,
however, is the very narrow one, that the judge of the
County Court of one county was sitting as Chairman of
the General Sessions in another, ” and not otherwise than
by virtue of his office as judge of the County Court of his
own county” and that this he had, under his commission,
no right to do. Armour, C.J., expressly reserved the ques-
tion as to the power of the provincial assembly to provide
that the judge oi>the County Court of one county shall be
Chairman at the General Sessions of the Peace in another,
and the decision therefore only goes to this length, that a
County Court judge can act as such only in the ceunty for
which he is appointed, by the Governor-General in Coun-
cil, under section 96 of the B. N. A. Act. Taken together,
these two cases support our proposition. A Provincial,
government can impose upon the individual who is County
Court judge, duties (falling of course within the range of
matters of provincial cognizance) other than those covered
hy his commission from the Governor-General, care being-
necessary perhaps in defining that those super-added duties

(a) B. S. O. (1877) c. 42.

(b) 2 O. R. 118, Armour, J., dissenting. It is to ba noted that the
majority of the Court expressly limited their judgment to affirming the
validity of the Act, in its bearing on Division Courts.

234 THE CANADIAN CONSTITUTION.

I are when exercisable otherwise than in his own County
Court to be exercised by him, not qua County Court

(judge, but qua provincial officer.

With regard to the creation of courts by the Dominion
Government, the scheme of the B. N. A. Act is logical,
while as to those Provincial courts mentioned in section 96
of the B. N. A. Act, the scheme is quite the reverse. We
do not rely upon any possible complication which may
arise from the way in which ” procedure ‘ is treated by the
Act (c). It is difficult, in many cases, to distinguish be-
tween law and “procedure.” In its narrow sense “pro-
cedure ” relates simply to the organic working of a court,
and is not supposed to affect rights, or to alter the legal
relations arising out of any given facts ; while in a wider
sense it may have a most potent effect along both lines (d\
Of this, however, more anon. The method of organizing

! those provincial courts mentioned in section 96 is illogical
in this, that the machinery of those courts is supplied
partly by the Dominion government and partly by the
Provincial, with the resultant difficulty in fixing responsi-
^ bility to which reference has already been made (e). The
power to appoint, necessarily carries with it the power to
determine the tenure of office (subject, as to the Superior
Court jtfdges, to section 99), and therefore the power to
dismiss. This power of appointment and dismissal rests
with one government ; another government defines the
duties of the office an arrangement certainly unique under
a British constitution. But, except in so far as this peculiar
arrangement affects the law of our constitution, further
comment upon it is, perhaps, out of place here.

However constituted, the Provincial courts have, we
again repeat, to administer Dominion as well as Provincial
law, and this is perhaps the proper place to advert more

(c) Compare s. 91, s-s. 27, and s. 92, s-s. 14.

(rf) See Exchange Bank v. Reg., 11 App. Gas. at p. 169.

(<‘) See ante, p. 227.

OUR JUDICIAL SYSTEM. 235

fully to the question of ” procedure ” alluded to in the last
paragraph. On this question considerable divergence of
view is apparent in the cases (/), arising largely from the
differing constructions placed upon the words ” procedure in
civil matters in those courts ” in section 92, sub-section 14.
Taking that sub-section alone, and noting the sharp distinct
tion drawn between criminal and civil jurisdiction, and
that together they are exhaustive of the whole Held, the
plain meaning is, that ” procedure,” in all matters other
than criminal, is subject to the exclusive legislative power
of the provincial legislatures) and there would appear to-
be no warrant therefore for the opinion that ” procedure in
civil matters ” in this sub-section must be read as limited to
proceedings in relation to matters over which the provin-
cial legislatures have exclusive legislative power (</). Butj what is “procedure” ? We have already noted that they word is capable of two very different interpretations. IIP is only used once in section 91, and once in section 92, and a comparison of the two sub-sections in which it occurs will suffice to show that in sub-section 27 of section 91, it- has the wide, and in sub-section 14 of section 92, the nar- rower meaning. ” The criminal law . . including the procedure in criminal matters,” would indicate the view of the f ramers of the B. N. A. Act, that ” procedure in criminal matters ” is an essential and necessary part of criminal law ; while ” the constitution, maintenance, and organization of provincial courts, including procedure in civil matters,” would appear to point to the “procedure”; incident to the organic working of the courts. In a sense, statutory regulation of procedure in any, the most im- material, step of a cause may affect rights and obligations, (/) See notes to B. N. A. Act, s. 92, s-s. 14, where the cases are col- lected. (g) See Peak v. Shields, 8 S. C. B. at p. 591. ” Matters ” is here used in two very different senses. ” Civil matters,” we take it, is but another way of saying civil actions, suits, or other judicial proceedings ; while “matters over which, etc.,” refers to subject matters for legislative action. 236 THE CANADIAN CONSTITUTION. but only in a very secondary sense. No idea of altering those legal relations which arise from any facts irrespec- tive of any litigation in reference thereto, is present to the mind of the legislature in laviiio- down such statutory O / O t/ regulations, and it is this sort of ” procedure ” that is re- ferred to in sub-section 14 of section 92 ; while as to criminal matters, ” procedure,” from the laying of the information to the infliction of the penalty, is carefully treated as a component part of criminal law, the various safeguards thereby created forming part of the ” rights ” of persons accused of crime (/*.). So far as procedure is of this sort a necessary and practically component part of legislation relative to any of the classes of matters within the com- petence of the Dominion parliament it is an accessory which follows its principal. The cases under the B. N. A. Act bear us out, we think, in this distinction. As to criminal law, section 91, sub- section 27, is a clear indication that ” procedure in criminal matters ” is such component part of that law, although, as will appear later, (the term “criminal law” in Canadian jurisprudence is a term of limited scope ; but as to laws relating to matters other than crimes, a perusal of the various sub-sections of section 91 discloses many matters, any legislation on which must involve procedure, of which matters, procedure is a component part. Maritime law is a branch of jurisprudence which falls within “Navigation and Shipping “(/), and its peculiarly peremptory /// >'< m procedure is an essential part of an}’ such law, practically creative of rights and obligations. And so of divorce law, patent law (,/’), insolvency law, and election law; and (/O Since the above was written Mr. Justice McMahon has handed -out his judgment in Eeg. v. Toland, holding that 53 Vic. c. 18, s 2 (Ont.), giving to a police magistrate rower to try certain offences under R. S. C. c. 165, “An Act respecting Forgery,” is ultra vires of a provincial legis- lature. (/) Sec. 01, s-s. 10 ; see ” The Picton,” 4 S. C. R. (54*. (j) See In re The Tell Te’ephone Co., 7 O. R. 605, cited in foot note suit?, p. 230. Aitche^on v. Mann, 9 P. R. 253, 473. OUR JUDICIAL SYSTEM. 237 perhaps other branches of jurisprudence may be found wrapped up in the various sub-sections of section 91. The \ leading cases on the subject are those involving consider- \ ation of insolvency law and election law. The extent to ! which the Dominion parliament, by legislation under sub- section 21 of section 91, ” bankruptcy and insolvency/’ is empowered to interfere with “procedure in civil matters in the province,” came up for consideration before the Judicial Committee of the Privy Council, in the case of Gushing v. Dupuy (k), and was disposed of in the judgment of that tribunal in these words : “It was strongly contended that the parliament of Canada could not take away the right of appeal to the Queen from final judgments of the Court of Queen’s Bench, which, it was said, was part of the procedure in civil matters exclusively assigned to the legislature of the province. The answer to this objection is obvious. It would be impossible to advance a step in the con- struction of a scheme for the administration of insolvent estates, without interfering with and modifying some of the original rights of property, and other civil rights, nor without providing some mode of special procedure for the vesting, realization, and distribution of the estate, and the settlement of the liabilities of the insolvent. Procedure must necessarily form an essential i>u-i’t<)fl
tnnj Jaw dealing with insolvency. It is therefore to be presumed,
indeed it is a necessary implication, that the Imperial statute, in
assigning to the Dominion parliament the subjects of bankruptcy
and insolvency, intended to confer on it legislative power to
interfere with property, civil rights and procedure within the
provinces, so far as a general law relating to those subjects might
affect them.”

The power of the Dominion parliament to regulate the
procedure in connection with the trial, by provincial
courts, of controverted election cases, arising out of
elections to the House of Commons, has scarcely been
questioned. The language of the Judicial Committee of
the Privy Council, in dishing v. Dupuy, applies mutatis

(It) 5 App. Cas. 400.

238 THE CANADIAN CONSTITUTION.

i,nity section
41 of the B. N. A. Act, is clearly with the Dominion parlia-
ment (I). The controversy which has arisen as to the
power of the Dominion parliament to refer such cases for
determination by provincial courts, has been settled in
affirmance of the power (m).

So far as provincial courts are concerned, the provin-
cial legislatures have full control of them, subject only to
the appointing power of the Dominion government in
reference to those mentioned in section 96 of the B. N. A.
Act the Superior, District, and County Courts in each
province, excepting the Probate Courts of Nova Scotia and
New Brunswick and to the power of the Dominion parlia-
ment to regulate the procedure in the sense above
explained. This jurisdiction over provincial courts is not
limited to those which were in existence at the Union, but
extends to the creation of such new provincial courts (n),
with such jurisdiction, and with such judicial and adminis-
trative staff, as to the provincial legislature may seem
proper for ” the administration of justice in the province/ V
which phrase is used in its widest sense. It covers the
appointment of all officers connected with the administra-
tion of justice (o), with the exceptions noted. The question
has been much discussed in connection with the appoint-
ment of police magistrates and justices of the peace, and
has been complicated somewhat by considerations as to the
prerogatives of the Crown in this connection. With this
phase of the question we have already dealt (p). It is
now settled, subject to review by our Supreme Court, and
the Judicial Committee of the Privy Council, that the

(I) See notes to that section, post .

(m) See ante, pp. 231-2, and notes to s. 41 of the B. N. A. Act, post.

(n) Reg. v. Coote, L. R. 4 P. C. 599 ; Ganong v. Bayley, 1 Pug. &
Burb. 324.

(o) Reg. v. Bush, 1.5 O. R. 398, per Street, J. See passage quoted
post. (p) See Chap. VI., and Chap. VIII. ante, p. 165.

OUR JUDICIAL SYSTEM. 239

appointment of justices of the peace and police magistrates, !
relates to “the administration of justice ” (which term is to
be read in its broad sense, and qualified only by the power of ;
the Dominion parliament under sections 96 and 101), and
rests therefore with the provinces. The situation is thus
summed up by Armour, C.J.,.in Reg. v. Bush (q):

” Laws providing for the appointment of justices of the peace
are, it is contended, and I think rightly, laws in relation to the
administration of justice, for the appointment of justices of the
peace is a primary requisite to the administration of justice ; and
if this contention be correct the passing of such laws is exclu-
sively within the power of the provincial legislatures.

” There is a considerable weight of judicial opinion in favor
of this contention, and although not binding upon us, yet in a
matter of construction such as this, it ought not to be lightly
dissented from.”

And he refers to a number of authorities, which will be
found collected in the notes to section 92, sub-section 14.
Mr. Justice Street says, referring to the language of sub-
section 14 :

” Now, these words, standing alone and without any interpre-
tation or context, appear to me to be sufficient, had no other
clause in the Act limited them, to confer upon the provincial
legislatures the right to regulate and provide for the whole
machinery connected with the administration of justice in the
provinces, including the appointment of all the judges and
officers requisite for the proper administration of justice in its
widest sense, reserving_only the procedure in criminal matters.”

And he refers to sections 96, 100, and 101 as the only
sections in any way limiting the meaning to be given to
sub-section 14, and then proceeds :

“Everything coming within the ordinary meaning of the
expression, ” the administration of justice,” not covered by the
sections which I have referred to, therefore, remains, in iny
opinion, to be dealt with by the provincial legislatures, in pur-
suance of the powers conferred upon them by paragraph 14 of
.section 92.”

(q) 15 O. R. 398.

240 THE CANADIAN CONSTITUTION.

Iii ra Simmons and Dalton (-/), it was held by Mr. Justice
Proudfoot that tKe~High Court of Justice for Ontario the
” Superior Court ” of that province has jurisdiction to
supervise the exercise of judicial functions by a ” federal ”
Court e.y.j the Revising Officers Court under ” The Elec-
toral Franchise Act” (R. S. C. c. 5) but this decision has
been overruled by the Divisional Court of the Chancery
Division ().

” The Chancery Division has, in common with the other
divisions of the High Court of Justice, plenary jurisdiction to
deal with matters of prohibition which concern the administration
of justice within Ontario as a procim-ial unit. This (inherent)
power is circumscribed by the requirements of the province, and
operates, I think, only as to Itnvx enacted hy or in force in Ontario
pertaining to matters of provincial cognizance under the B.’N. A.
Act:’ Per Boyd, C.

Courts, or judicial tribunals, established under Dominion
legislation limited as their functions must be to adminis-
tering Do mint on law (t) are entirely outside of “the
administration of justice in the Province,” and “are not
subordinate judicial Courts quoad the Province.” ( the B. N. A. Act, post.

CHAPTER

THE B. N. A. ACT, 1867,

30-31 Vic. CAP. 3.

An Act for the Union of Canada, Nova Scotia,
New Brunswick, and the Government thereof
and for Purposes connected therewith.

[29th March, 1867.]

WHEKEAS the Provinces of Canada,
Nova Scotia, and New Brunswick have
expressed their desire (i) to be feder-
ally (ii) united into one Dominion under
the Crown of the United Kingdom (iii)
of Great Britain and Ireland, with a Con-
stitution similar in principle to that of
the United Kingdom (iv) :

(i) ” Have expressed their desire.” This^ expression of
desire is to be found in the Quebec Resolutions, which will
be found printed in full in the appendix. See ante, p. 9.

(ii) ” Federally.” The use of this term would seem to
imply the continued existence of the parties to the fuedus.
See chapter III., ante, p. 47 ; and see also the judgment of
the Privy Council in Liquidators of Maritime Bank v.
Receiver-General of New Brunswick (a).

(a) At present only reported in Times Law Reports for week ending
6th July, 1892 (Vol. VIII., p. 677).
CAN. CON. 16

242 THE B. N. A. ACT PREAMBLE.

(iii) ” Under the Crown of the United Kingdom.” See
notes to section 2, post ; and see also, as to the necessary
saving of Imperial sovereignty in colonial legislation, chap-
ter IX., ante, p. 183, et seq.

(iv) “A constitution */’ lilar in principle, etc” For a
comparison and contrast ./stem of government, with

those of the United Kin: ; )m an d the United States, see
chapter I. As to the Limitation of this preamble to the
Dominion o-overr * -^ n t only, and the harmlessness of such
limitation see ‘ nte, p. 3, and chapter III. It is submitted,
however, ^’ d ^ rea( ^ i n connection with clause 3 of this
p re ^nbie, it should be treated as a general reference to
jiie type of governmental machinery, and its working-
principle throughout both the Dominion and the various
provinces.

And whereas such a. Union would
conduce to the welfare of the Provinces
and promote the interests of the British
Empire :

And whereas on the establishment
of the Union by authority of Parlia-
ment (i) it is expedient, not only that the
Constitution of the Legislative authority
(ii) in the Dominion be provided for, but
also that the nature of the Executive
Government (iii) therein be declared :

(i) ” By authority of parliament” As to the legisla-
tive supremacy of the Imperial parliament over Canada, in
common with all other parts of the British Empire, see
chapter IV. In the early days of our colonial history
provinces were divided, and again joined together by the
Crown in the exercise of ” prerogative,” but as representa-
tive legislatures were in existence in the pre-Confederation
provinces, any attempt to effect their union otherwise than
by Act of the Imperial parliament would have been illegal.

THE B. N. A. ACT SEC. 1. 243

See ante, p. 30, and chapter VI. ante, p. 140 ; and see also
notes to section 3, post.

(ii) ” The legislative authority in the Dominion!’ As
to the control exercised by the executive department of the
Imperial government over Dominion legislation, see chap-
ter VII. ante, p. 145, where will be found a full discussion
-of sections 55, 56 and 57 of the B. N. A. Act. As to
colonial legislative authority and the limitations thereon,
.see chapter IX t

(iii) ” The nature of the executive government!’ As to
the necessary co-extension and practical oneness of the
spheres of authority of the legislative and executive
departments of government, see ante, p. 12 et seq., 22 et seq.,
45 et seq., and chapter VI. See also notes to section 9,
post.

And whereas it is expedient that pro-
vision be made for the eventual admission
into the Union of other parts of British
North America (i) :

(i) ” The eventual admission of other parts of British
North America!’ See sections 146 and 147, post, and Part
IV. of this book.

Be it therefore enacted and declared
by the Queen’s Most Excellent Majesty,
by and with the advice and consent of
the Lords Spiritual and Temporal, and
Commons, in this present Parliament
assembled, and by the authority of the
same, as follows :

I. PKKLIMINAKY.

1. This Act may be cited as ” The Short Title –
British North America Act, 1867 ” (i).

244 THI-: n. \. A. A< r NEC. 2. (i) Throughout this work we have adopted the shorter mode of citation, “the B. N. A. Act.” It should he pointed out, however, that there are two other Acts similarly entitled, namely, the B. N. A. Act, 1871 (/>), mid the B. N. A. Act,
1SN() (c}. By section X of the last-named Act, these three
statutes are to be construed together, and may he cited as
” The British North America Acts, 1867_to_1886.” We
draw attention, too, to lt The Parliament of Canada Act,.
1875 (<l\ as to which, see notes to section IS, 2- The provisions of this Act refer- gTei 1 :’ 10 e ring to Her Majesty the Queen extend also to the heirs and successors of Her Majesty, Kings and Queens of the United Kingdom of Great Britain and Ireland (i). (i) “/tint/* dud Qturnx of the United Klmjdom.”- The succession to the Crown of England is now regulated by the Act of Settlement, 12 & 13 Win. III. c. 2. ^By the common law of England, upon the abdication of a sovereign, parliament might re-settle the succession, and in compar- atively modern times we have the precedent of the Bill of Rights, 1 Win. & Mary (st. 2), c. 2, by which it was de- clared that, by his flight from the kingdom, James II. had abdicated the throne, and the crown was settled upon Wil- liam and Mary. Then came the Act of Settlement, to which we have referred, settling the succession upon the Electress Sophia, of Hanover, and her heirs, being Protestants. The power of parliament to alter the succession is distinctly affirmed in 6 Anne, c. 7, which adjudges traitors all who affirm “that the kings or queens of this realm, with and />//
the i((//orit>/ of parliament, are unable to make laws and
statutes of sufficient force and validity to limit and hind
the Crown and the descent, limitation, inherifance, i/<f
</o<‘<‘rnment thereof.” While, as we have frequently pointed

(b) 34 & 35 Vic. c. 28 (Imp.); see post.

(c) 49 & 50 Vic. c. 85 (Imp.); see pott,
(it) 38 & 39 Vic. c. 38 (Imp.).

THE B. N. A. ACT SEC. 3. 245

out, colonial legislatures have full power to curtail the pre- ,
rogatives of the Crown in connection with the executive
government of a colony (e), this does not extend to enable
.a colonial legislature to pass an Act affecting the position
of the occupant of the throne of England as Executive
Head throughout the Empire ; see Craw v. Ramsay, cite d
ante, p. 184. See s. 9, post, and notes thereto.

Declaration
of Union.

II. UNION.

3- It shall be lawful (i) for the Queen,
“by and with the advice of Her Majesty’s
Most Honourable Privy Council, to de-
clare by Proclamation (h) that on and after
a day therein appointed, not being more
than six months after the passing of this
Act, the Provinces of Canada, Nova Scotia,
and New Brunswick shall form and be one
Dominion under the name of Canada ;
and on and after that day those three
Provinces shall form and be one Do-
minion (iii) under that name accordingly.

(i) ” It shall be lawful:’ See note (i) ante, p. 242 ; the
Proclamation of Union rests upon the express ” authority
of Parliament/’ as intimated in the preamble.

(ii) Her Majesty’s Proclamation bore date 22nd May,
1867, and provided that the Union should take effect on
July 1st of that year.

(iii) ” One Dominion.” i.e., for all purposes of govern-
ment, legislative and executive, in relation to matters of
common concern, leaving the component provinces their
full rounded autonomy in all other matters. ” The object
of the Act was neither to weld the Provinces into one, nor

(e) See ante, p. 140; Exchange Bank v. Reg., 11 App. Cas. 157;
Liquidators of Maritime Bank v. Receiver-General of New Brunswick,
Times Law Rep., Vol. VIII., p. 677.

246 THE B. N. A. ACT SECS. 4, 5.

to subordinate provincial governments to a central author-
ity, but to create a federal government in which they should
all be represented, intrusted with the exclusive administra-
tion of affairs in which they had a common interest, each
province retaining its independence and autonomy.” Per
Lord Watson, in Maritime Bank v. Receiver General of
New Brunswick, Times L. R., Vol. VIII. p. 677. See the
judgment quoted more at length in notes to section 58, post.

4- The subsequent provisions of this

Act vls Act shall, unless it is otherwise expressed
or implied, commence and have effect on
and after the Union, that is to say, on and
after the day appointed for the Union
taking effect in the Queen’s Proclamation ;
and in the same provisions, unless it is
otherwise expressed or implied, the name
Canada shall be taken to mean Canada
as constituted under this Act (i).

(i) ” Canada as constituted under this Act!’ This
Act must now be read in connection with the various Im-
perial ” Orders in Council,” passed under section 146, post,
and having, under that section, the force of Imperial statutes;
and with the Acts in amendment of this Act. See note to
section 1, ante.

Fn cs Prov ” 5- Canada shall be divided into four

Provinces (i), named Ontario, Quebec,,
Nova Scotia, and New Brunswick.

(i) “Four Provinces” For the boundaries of the
Dominion, and of each of the different provinces of which it
is now composed, see Houston, ” Constitutional Documents of
Canada,” appendix B, p. 271. At the date of Confederation r
there were in existence in British North America three
other provinces, namely, Newfoundland, Prince Edward
Island, and British Columbia, ; the balance of the territory

THE B. N. A. ACT SEC. 6. 247

being unorganized, except in so far as the government of
the Hudson’s Bay Company in Rupert’s Land might be
deemed an organized government. Newfoundland has so
far declined all invitations to unite her fortunes with the
Dominion, although she was one of the provinces repre-
sented at the Quebec Conference. Prince Edward Island
#nd British Columbia have since joined, and the remainder
of British North America has been annexed to Canada, and
the province of Manitoba erected therein, so that there are
now seven “provinces” in the Dominion, exclusive of the
North West Territories. See Part IV. of this book.

6. The parts of the Province of Can-
ada (as it exists at the passing of this Que
Act) which formerly constituted respec-
tively the Provinces of Upper Canada and
Lower Canada shall be deemed to be
severed, and shall form two separate Pro-
vinces (i). The part which formerly con-
stituted the Province of Upper Canada
shall constitute the Province of Ontario;
and the part which formerly constituted
the Province of Lower Canada shall con-
stitute the Province of Quebec (ii).

(i) ” Two separate provinces!’ See Quebec Resolu-
tions, No. 2. Although joined in legislative union under
Imperial Act, 3 & 4 Vic. e. 35 (” The Union Act”), the
difference in race, language, and legal systems justified the
popular description of the two parts of old Canada as “the
two Canadas.” For an interesting sketch of the devices
resorted to, in order to work out the federal idea in the
government of these two parts of Canada, see Bourinot,
“Parliamentary Procedure and Practice,” 2nd ed. p. 39, et seq:
The necessity, created by this severance of the two Canadas,
for the establishment of new governmental machinery in
each of them, and the argument founded on the clauses of

248 THE B. X. A. ACT SECS. 7-9.

the Act which make provision therefor, will be found dis
cussed in chapter III. ante, p. 46.

(ii) See the judgment of Robinson, C.J., in Doe d.
Anderson v. Todd (quoted ante, p. 104) for a statement in
reference to the boundaries of (old) Quebec.

7- The Provinces of Nova Scotia and
New Brunswick shall have the same
limits as at the passing of this Act (i).
(i) See foot-note ante, p. 46.

?e e ns e us nial 8- In the general census of the popu-

lation of Canada which is hereby required
to be taken in the year one thousand
eight hundred and seventy-one, and in
every tenth year thereafter, the respective
populations of the four Provinces shall
be distinguished (i).

(i) ” ShaU be distinguished” In order to a re-adjust-
ment_of jbhe representation, in the parliament of Canada, of
the respective provinces. See section 51, post, and notes
thereto.

III. EXECUTIVE POWER (i).

Ec’S3te onof 9- The Executive Government and
qS. 111 ‘ authority of and over Canada i.lioivby

declared to continue and be ves^ffin the

Queen (ii).

(i) “Executive, power” As to the necessary subordi-
nation of the executive to the legislative department of
government, see ante, p. 12. In reference to the govern-
ment of Canada </* part of the British Empire, the Queen’s authority as executive head of that Empire is subordinate j to the parliament of the United Kingdom, the supreme Imperial legislative power ; and her authority as executive THE B. N. A. ACT SEC. 9. 249 head of Canada (that is in reference to our self-govern- ment] is subordinate to the authority of Canadian parliaments. In other words, in so far as the Imperial parliament has reserved to itself, control over certain subject matters, as being matters of Imperial concern (such reservation being evidenced, either by express or implied limitation upon the powers of the colonial legislature over certain subject matters (/), or by the existence of Imperial legislation upon these matters) ((/), the executive authority of the Queen is exercised subject to the control of the Imperial parliament, i.e., by and with the advice of the executive committee or Cabinet of the Empire ; while, on the other hand, in so far as legislative power has been conceded to a colonial legislature, the executive authority of the Queen is exercised, through her representative, subject to the control of the colonial legislature, i.e., by and with the advice of the executive committee or Cabinet, Dominion or Provincial, as the case may be. We may here notice one particular subject matter, which for obvious reasons is treated as matter of Imperial concern, and in respect to which, therefore, no legislative power is conceded to Canadian parliaments; the constitution, namely, of the connecting- links in the chain of executive government, from the Imperial, through the Dominion, to the Provincial. The executive government of the British Empire is, in truth, in its Imperial, as well as its English aspect, a unit ; and for the purpose of securing unity of national purpose and method throughout the Empire, the appointment of the local executive heads is so arranged that the execu- tive department of that government which is pos- sessed of the widest territorial jurisdiction, appoints the executive head of the government next in extent, and exercises executive supervision over its legislation; and so on. We may here note that the Imperial government can also exercise a legislative supervision over colonial legisla- tion ; the Dominion government is limited to the exercise (/) See Chap. IX. (g) See Chap. IV. * 250 THE B. N. A. ACT SEC. 9. of executive supervision to wit, the power of disallowance- over provincial legislation. Leaving out of consideration,, however, the legislative supremacy of the Imperial parlia- ment, what the Judicial Committee has said (hj in reference to the relation between the Dominion and the Provinces, in Canada : ” No one of the parts can pass laws for itself except under the control of the whole, acting through the Governor-General : ” is equally applicable substituting the Queen for the Governor-General to the relation of the colonies generally to the Empire. Under existing arrangements, the Queen occupies a dual position, being executive head of the Empire and, at the same time, local executive head of the United Kingdom ;… but the union, in one legislative body with one executive committee or cabinet, of the power to legislate for the- whole Empire as well as specially for one of its territorial divisions, leaves the line of division a purely “conven- tional ” one in this sense, at least ; that the power of the Imperial parliament to alter the position of the line, is restrained only by the ” conventions,” and not by the law of the constitution ; but at any given moment of time the line of division is a legal one. See ante, p. 11. The Governor-General of Canada again occupies a dual position. He is one of the Imperial executive staff as well as executive head of the Dominion. In the former capacity, he is subject to Imperial executive authority, which, as we- have said, extends to all those subject matters, which, at any given moment of time, are within the category of matters of Imperial concern, controlled by Imperial legis- lation, or from the other point of view uncontrollable by colonial legislation. In regard to such matters his actions are regulated by instructions, general or specific, received from his official superior at home or by Imperial statutes. In his capacity as executive head of the Domin- ion, he acts by and with the advice of the Queen’s Privy Council for Canada, and is, in the exercise of his executive (/*) Bank of Toronto v. Lanibe, 12 App. Gas. at p. r>s7.

THE B. N. A. ACT SEC. 9. 251

authority in relation to matters within the legislative com-
petence of the Dominion parliament, subject to the control
of that body. His position with reference to the Lieuten-
ant-Governors of the several provinces, illustrates the dis-
tinction we have been trying to point out.^The Dominion 1
parliament cannot provide any method for the appointment
of a Lieutenant-Go vernor, or for his removal, other than
that provided in the B. N. A. Act. It is deemed matter ofi
Imperial concern that there should be a single executive!
head for each of the provinces ; that the Dominion execu-
tive committee or cabinet should appoint him; and that,
once appointed, he should not be removed except for cause.
Any departure from the mode provided in the B. N. A.
Act would be illegal and nugatory, and in performance of
his duties in this connection, the Governor-General must>
as an Imperial officer, follow the Imperial statute, as that
statute may be authoritatively interpreted by his official
superior in England. As to the mode of appointment, the!
B. N. A. Act is explicit the appointment must be by order
in council so that the question, who shall fill the position,
is left as a matter of local Canadian concern, to the deter-
mination of the Dominion Cabinet ; while as to the
removal of a Lieutenant-Governor, the B. N. A. Act is
equally clear in giving that power to the Governor-General
alone. That is to say, the Governor-General cannot, aloneJ
legally appoint, but he can, alone, legally remove for cause. 1
This question is perhaps not of much practical importance,
because, in the Letellier case, the Imperial anthorities laid
down ithe ” conventional ” rule for the guidance of the
Governor-General, that he should, in this matter of removal,
act by and with the advice of the Dominion cabinet ; but
should he at any time undertake to act upon his own
judgment a Lieutenant-Governor removed would legally
cease to be Lieutenant-Governor. The laying down of
this conventional rule has certainly very largely increased
the power possessed by the Dominion executive to interfere
in the affairs of the provinces ; but it was necessary, per-

252 THE B. N. A. ACT SEC. 9.

haps, to the logical uniformity of the federal scheme. It is
perhaps more consonant with British notions to have the
real power coupled with real responsibility to the whole
electorate of the Dominion, in whose interests presumably
the power will be exercised in any given case. A political
cynic may perhaps think not inal apropos the remark of
Mr. Bumble when informed that a husband is, in law, pre-
sumed to control his wife : “If thej_aw presumes anything
of the sort, the law ‘s a fool a jnatural fool.” It is indeed
a serious question whether it would not be conducive to \
the impartiality of the provincial executive heads to
make them entirely independent of Dominion executive
authority ; or whether any gain along this line would not
be more than counterbalanced by the loss of one item of
colonial self-government. See notes to section 58, post.

(ii) “In the ^ju0o?V This section is declaratory
merely, and was inserted simply by way of abundant
caution, for, according to Chitty, ” the king of England is
not only the chief, but properly the sole magistrate of the
nation, all others acting by commission from, and in due
subordination to him ” (hh). In an earlier chapter we have
treated at some length of the prerogatives of the Crown in
their relation to colonial government, see chapter_VL; and
we have endeavored to emphasize this legal principle that
these prerogatives of the Crown are nothing more than
powers vested by the common law of England in the execu-
tive head of the nation in aid of the execution of the laws
of the realm, and that, by Act of parliament, these prerog-
ative rights may be, and in a great many instances have
been modified turned into statutory powers or entirely
withdrawn. The question has been mooted, although per-
haps not of such practical importance, whether Her
Majesty could, in person, carry on the government of
Canada, or of one of the provinces ; it is submitted that

(hh) See the judgment of the P. C. in Liquidators of the Maritime
Bank v. Receiver-General of New Brunswick, as yet reported only in
Times L. R., Vol. VIII. p. 677.

THE B. N. A. ACT SEC. 10. 253

without repeal of the B. N. A. Act, she could not legally
do so. All the powers, authorities and functions necessary –
to ” carrying on the government ” of the Dominion and of
the respective provinces are, by the express terms of the
B. N. A. Act, vested in the Governor-General, or the Lieu-
tenant-Governor, as the case may require (i) ; and by no
Act of Imperial executive authority could these express
provisions of this Imperial statute be overridden. In the
absence, therefore, of further Imperial legislation, we
must put up with Her Majesty’s representatives.

The power (1) to disallow colonial legislation; (2) to
appoint the Governor-General ; (3) to appoint a Com-
mander over the military and naval forces of Canada ; (4)
to make international arrangements which will bind
Canada ; and (5) to hear appeals from Canadian courts in
her Privy Council (j); would seem to be about all the
common law prerogatives of the Crown in connection with
colonial affairs, over which colonial legislatures have no
legislative power. As a matter of fact, some of these
powers can hardly be designated prerogatives of the Crown,
as their exercise is entirely Controlled by Imperial statutes.
As one example, we may note the power to disallow Do-
minion legislation, which under section 56 of the B. N. A.
Act, can only be exercised within two years from the
receipt of the Act by the secretary of state, and by order
in council.

1 . The provisions of this Act referring
to the Governor- General (i) extend and Gove n rnor-
apply to the Governor- General for the
time being of Canada, or other the chief
executive Officer or Administrator, for
the time being currying on the govern-

(i) See notes to ss. 10 and 62, post.

(j) Gushing v. Dupuy, 5, App. Cas. 409, and cases there cited ; and
see Theberge v^Laridry, 2 App Cas. 102 (as to appeals in election cases
under the Quebec Acts of 1872 and 1875), noted post, under s. 41.

254 THE B. X. A. ACT SEC. 10.

ment (ii) of Canada on behalf and in the
name of the Queen (iii) by whatever title
he is designated.

(i) “The Governor-General.” We have already de-
y voted one chapter of this book to a consideration of the
position of the Governor-General, and need not therefore
make further reference to that office here. As was pointed
(out, the B. N. A. Act contains no express provision for his
‘ appointment. By R S. C. c. 3, he is a “corporation sole.”
(ii) “Carrying on the government.” Compare with
this section, the language of section 62 in reference to the
carrying on of the government of the respective provinces
V>y the Lieutenant-Governors. The use of this phrase in
reference alike to the Dominion and the Provincial govern-
ments, has been much utilized in argument in support of
the contention that the Lieutenant-Governor is within his
sphere, an officer clothed with authority as complete as
that of the Governor-General; but as we shall have to deal
with this matter more at length when we come to deal
with the office of Lieutenant-Go vernor, we need not stay to
consider it at length here. See notes to section 58, post.

(iii) “OTi behalf and in the name of the Queen.” The
absence of this phrase from section 62, has been utilized in
the opposite direction in Regina v. Amer (k), and other sub-
.sequent cases. It was laid down by Harrison, C.J., that
the Governor-General is the only executive officer provided
for by the B. N. A. Act, who answers the description of
“representative of the Queen,” but it is submitted that the
difference in the wording of this section and of section 62,
does not warrant any such distinction. Any person carry-
ing on government within the British Empire must do so
on behalf of, and in the name of, the executive head of the
British Empire, as all other executive magistrates act
under commission from, and in due subordination to, that
executive head. If reliance is placed upon the fact that
(A-) 42 U. C. Q. B. 391.

THE B. N. A. ACT SEC. 11. 255

the Lieutenant-Go vernor is described as an ” officer,” it will
be seen that this section uses the very same word in de-
jscribing the position of the Governor-General, and a refer-
ence to chapter VIII. and the cases there collected, will
show that the Governor-General occupies, in this respect, a
position in no way different from, or superior to, that of the
Lieu tenant-Go vernor of a province. Very opportunely, there
comes to hand the report of the judgment of the Judicial
-Committee of the Privy Council in Liquidators of the
Maritime Bank v. Receiver General of New Brunswick
(Times L. R, Vol. VIII. p. 677), which authoritatively
establishes the doctrine that (the position of the Governor-
General and the various Lieiitenant-Governors is, in prin-
ciple, precisely analogous. “A Lieutenant-Governor when
appointed is as much the representative of her Majesty
for all purposes of provincial government as the Governor-
General himself is for all purposes of Dominion govern-
ment.” See further on this subject, section 58, et seq. and
notes.

11. There shall be a Council (i) to S f ?3? y ution
.aid and advise in the Government of cSSSaa.
Canada, to be styled the Queen’s Privy
Council for Canada (ii) ; and the persons
who are to be members of that Council
shall be from time to time chosen and
summoned by the Go vernor- General and
sworn in as Privy Councillors, and mem-
.bers thereof may be from time to time
removed by the Governor-General.

(i) (C There shall be a council.” Compare with this,
the language of section 63. This latter section seems to
” take it for granted ” that an executive council would be
called into existence in Ontario and Quebec, while as to the
Dominion it was -necessary to make express provision there-
for. See ante, p. 50-1.

256 THE B. N. A. ACT SEC. 12.

(ii) “The Queeit’x 7V//y/ (‘unm-il for Canada!’ Fol-
lowing the English practice,* members of the Canadian
Privy Council, are not removed from their position upon
the resignation of the “ministry” of which they may happen
to be members ; but, of course, those members only who are
of the cabinet are summoned to meetings of the Privy
Council. See Bourinot, “Parl. Proc. and Pract.,” 2nd
ed. p. 54 and Todd, ” Parl. Gov. Brit. Col.,” p. 42.

12. (i) All powers, authorities and functions (ii) which under any Act (iii) of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of Upper Canada, Lower Canada, Canada, Nova Scotia, or New Brunswick, are at the Union vested in or exerciseable by the respective Governors or Lieutenant-Governors of those Provinces, with the advice, or with the advice and consent, of the respective Executive Councils thereof, or in conjunction with those Councils, or with any number of members thereof, or by those Governors or Lieutenant-Governors individually, shall, as far as the same continue in existence and capable of being exercised after the Union in relation to the Government of Canada, be vested in and exerciseable by the Governor-General, with the advice or with the advice and consent of or in conjunction with the Queen’s Privy Council for Canada, or any members thereof, or by the Governor-General individually as the case requires, subject nevertheless

[Page 257]

(except with respect to such as exist under Acts of the Parliament of Great Britain or of the Parliament of the United Kingdom of Great Britain and Ireland) (iv) to be abolished or altered by the Parliament of Canada (v).

(i) We have already had occasion to treat with some fullness of this section and its companion section (65); see chapter III., pp. 48, et seq.

(ii) ” All powers, etc.”—Compare the language of sec- tion 65, which vests these same ” powers, etc.,” so far as they are capable of being exercised in relation to the government of Ontario and Quebec, in the Lieutenant-Governors of those provinces respectively. The B. N. A. Act affects no division of these powers, but of the field for their exercise merely.

(iii) “Under any Act.”—This section 12, refers only to statutory powers and does not touch the common law ” prerogatives of the crown.” The vast majority of the powers exerciseable by the Governor-General are statutory powers, that is to say, are vested in him under Canadian legislation. See chapter VIII. ante, p. 163, et seq., where this question is fully discussed.

(iv) “Except with respect, etc.”—There are no Imperial Acts conferring powers, authorities, and functions on colonial governors generally : as to Canada, see the Constitutional Act, 1791, and the Union Act, 1840. All the powers, etc., conferred by those Acts—and more—are included in the B.N.A. Act, which at the present time is the only Imperial statute which in any way defines the duties of the Governor-General or of the Lieutenant-Governors of the various provinces.

(v) “To be abolished or altered by the parliament of Canada.” This of course is limited to the abolition or alteration of these powers, etc., so far as they are exerciseable in

[Page 258]

relation to the government of Canada. See section 65, which confers like power on the provincial legislative assemblies, so far as these powers are exerciseable in relation to the government of the provinces of Ontario and Quebec. See also notes to section 129, post, with particular reference to Dobie v. Temporalities Board, L. R. 7 App. Cas.136

13. The provisions of this Act refer-
ring 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 (i).

(i) Compare section 66, and see chapter_JIILatt-te,
p. 167, et seq., for a reference to those matters in respect of
which the Governor-General, in contemplation of law, acts
alone.

14. It shall be lawful for the Queen,
if Her Majesty thinks fit. to authorize the
Governor-General from time to time to
appoint any person or any persons jointly
or severally to be his Deputy or Deputies
within any part or parts of Canada, and
in that capacity to exercise during the
pleasure of the Governor-General such
of the powers authorities, and functions
of the Governor-General, as the Governor-
General deems it necessary or expedient
to assign to him or them, subject to any
limitations or directions expressed or
given by the Queen; but the appoint-
ment of such a Deputy or Deputies shall
not affect the exercise by the Governor-
General himself of any power, authority
or function (i).

to appoint

Deputies.

THE B. N. A. ACT SEC. 15. 259

(i) The commission to Lord Monck (clause 8), and the
Letters Patent of 1878 (clause 6), expressly authorize the
^appointment, by the Governor-General, of a deputy. See
chapter VIII. ante, p. 168. In the case of ReginavA
Amer (I), which came before the court upon a case stated,
.a commission to hold an assize, attested in the name of

” , Deputy of the Governor-General of Canada,” was

referred to in the “case,” and Harrison, C.J., assumed*

” That the Queen authorized the appointment of a Deputy!
Governor, and that the prerogative power in question was con-
ferred by the Governor- General upon the Deputy Governor,
without any limitation or direction on the part of the Queen,
and so that it has been exercised by the proper authority,”

there being no statement to the contrary in the case. In
that case, commissions had been issued both by the Gover-
nor-General, and by the Lientenant-Governor, and the
judgment of the Court affirmed the authority of the
Governor-General to issue such commission ; but it is sub-
mitted that the power to exercise this prerogative is
properly with the Lieutenant-Governor, and not with the
the Governor-General so far at least as provincial courts
are concerned as it is a prerogative directly connected
with ” the administration of justice in the province,”
and therefore falls within the class of matters over which
a provincial legislature is exclusively entitled to exercise
legislative authority. fcSee B. N. A. Act, s. 92, s-s. 14. /
As to the appointment of a Deputy Lieutenant-Gover-
nor, see notes to section 67, post.

15. The Command-in-Chief of the
Land and Naval Militia, and of all Naval
and Military Forces, of and in Canada, is
hereby declared to continue and be vested
in the Queen (i).

(i) This is one of those matters in respect of which
colonial legislative power is subject to many restrictions

(0 42 U. C. Q. B. 391.

c260 THE B. N. A. ACT SECS. 16, 17.

‘ arising from the existence of Imperial legislation of express
colonial application. See chapte^rTX. ante. So far as such
legislation does not extend, the subject is, as between the
Dominion and the provinces, exclusively with the for-
mer : see B. N. A. Act, section 91^ sub-section 7, and notes
thereto. Our legislation upon the subject is contained in
R. S. C. c. 41, to which the reader is referred, as the subject
is beyond the scope of this work political rather than
legal,

!rnmen?Sf” 16. Until the Queen otherwise di-
rects, the seat of Government (i) of Can-
ada shall be Ottawa (ii).

(i) ” The seat of government.” Compare section 68,
where the same form of expression is’ used in reference to
the provincial capitals. This fact, too, strongly supports
the view that the position of the provinces is the same, in
principle, as that of the Dominion.

(ii) ” Ottawa!’ This city is wholly within the boun-
daries of the province of Ontario. See the powerful
speech of Mr. C. Dunkin, in favor of placing the Federal
capital entirely under the jurisdiction of the Federal gov-
ernment, just as the .District of Columbia (within which is
situated the city of Washington) is under the control of
the Federal government of the United States. Confed.
Deb. p. 507.

IV. LEGISLATIVE POWER, (i).

SfTiSment 17. There shall be one Parliament (ii)

for Canada, consisting of the Queen (iii),

. an Upper House, styled the Senate (iv),

and the House of Commons (v).
(i) “Legislative power” See chapter IX., a.nte, for a
full discussion of the extent of the legislative power of a
British colony.

THE B. N. A. ACT SEC. 18. 261

(ii) ” Parliament” The use of this term in reference
to the legislative body of the Dominion only, has been
much utilized in argument to belittle the position of the
provincial legislative assemblies ; but their co-ordinate rank\
with the Dominion parliament (each supreme within its)
sphere of legislative authority) is now finally established :1
Hodge v. Reg. 9 App. Gas. 117 ; Bank of Toronto v. Lambe,
12 App. Gas. 575 : Liquidators of the Maritime Bank v.
Receiver-General of New Brunswick, Times L. R. Vol.
VIII. p. 677. The appellation bestowed upon any of these
bodies is immaterial. The question is, have they legislative
powers in the proper sense of that term ?

(iii) ” The Queen “–The position of the Queen as a

i ‘Constituent branch of parliament will be found discussed

in chapter VI. ante, p. 132, et seq., where we have also

pointed out that the Crown is also a constituent branch of

every colonial legislature. As to the position, in this regard,

of the legislative assemblies of the province, see notes to

section 69, post.

(iv) ” The Senate” See section 21, et seq.

(v) ” The House of Commons.” See section 37, et seq.

[18. The privileges, (ii), immunities,
and powers (iii), to be held, enjoyed and
exercised by the Senate and by the House
of Commons and by the members thereof
respectively shall be such as are from time
to time defined by Act of the Parliament
of Canada (iv), but so that any Act of the I
Parliament of Canada defining such privi-
leges, immunities and powers shall not
confer any privileges, immunities or
powers exceeding those at the passing of
such Act held,) enjoyed, and exercised by
the Commons House (v) of Parliament of

262 THE B. X. A. ACT SEC. 18.

the United Kingdom of Great Britain and!
Ireland and by the members thereof.

(i) The section, as it originally stood, limited the power
of the Parliament of Canada to defining its privileges, etc.,,
by its own enactment, ” but so that the same shall never
exceed those at the passing of this Act, held, enjoyed, etc.”

In 1873, the parliament of Canada passed an Act, 36 Vic.,
c. 1, ” To provide for the examination of witnesses on oath
by committees of the Senate and House of Commons-
in certain cases.” At the date of the passage of the B. X. A.
Act, the committees of the Imperial ” Commons House ”
had no power to examine witnesses upon oath (although
they had been given (m) that power prior to 1873), and for
this reason the Dominion statute was disallowed by the
Imperial Privy Council. The Act had been passed in order-
to facilitate enqiries into what is popularly known as the
” Pacific Scandal,” and its disallowance created some excite-
ment. The result of negotiations with the Imperial author-
ities (?i) was the passage of ” The Parliament of Canada
Act, Ic875,” 38 & 39 Vic. c. 38 (Imp.), which substituted the
section, as above printed, for the original section 18 of the
B. N. A. Act, 1867. It also expressly validated 31 & 32
Vic. c. 24 (Dom.), “An Act to provide for oaths to witness^
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.

(ii.) ” P fii’ !lc(/f’f<. vt.c” The law which defines the ” privileges, immunities, and powers ” of the British parlia- ment, and of the members thereof, is almost altogetlier part ; of the ancient law of England. The branch of English (m) See 34 & 35 Vic. c. 83 (Imp.). (w) See Can. Comm. Jour., 1873 (Oct. Sess.), p. 5; Sess. Pap. (1877)* No. 60. THE B. N. A. ACT SEC. 18. 263 common law which deals with this subject is known as the (lex et consuetudo parliamenti, and the Judicial Committee / of the Privy Council, on appeals from the colonies, have uniformly held that this branch of English common law was strictly local in its application, and referred, 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 f 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 by the lex et consuetudo parlia- menti annexed to the British parliament and its members. The powers, other than legislative, of a colonial legislature / (unless expressly extended by the terms of the charter, I commission, or Imperial Act constituting such legislature), I are such only as are incident to or inherent in such an! assembly, viz., ” such as are necessary to the existence of) such a body, and the proper exercise of the functions which) it is intended to execute.”– Kielley v^jUarson, 4 Mooj P. C. 88. ” Whatever, in a reasonable sense, is necessary for thes^e pur- poses, is impliedly granted whenever any such legislative body is established by competent authority. For this purpose, pro- tective and self-defensive powers only are necessary, and not punitive. If the question is to be elucidated by analogy, that analogy is rather to be derived from other assemblies not legis- lative, whose incidental powers of self-protection are implied by the common law (although of inferior importance and dignity to bodies constituted for purposes of public legislation), than from the British parliament, which has its own peculiar law and custom, or from courts of record, which have also their special authorities and privileges recognized by law.” Barton v* Taylor, 11 App. Cas. at p. 203. The existence of these limitations upon the powers, privileges, and immunities of a colonial legislature was the reason, presumably, for the enactment of the above section 264 THE B. X. A. ACT SEC- 18. of the B. N. A. Act ; and that enactment, and the subse- quent enactments of the Dominion parliament, have had the effect so far as the Dominion parliament is concerned of relegating the numerous authorities which deal with the position, in this regard, of colonial legislatures to the realm of the constitutional historian. But because of the conten- tion advanced in certain quarters that the provincial legis- latures are subject to the law as laid down in those author- ities, we may say that in Barton v. Taylor, 11 App. Cas. 197, the result of the authorities is clearly stated, and in Woodworth v. Landers, 2 S. C. R. 158 (0), will be found a compendium of the law on this subject (_>).

This clause of the B. N. A. Act has, on the other hand,
had the effect of limiting the wide power of the Dominion
parliament to define by its own legislation the privileges*
etc., of itself and its members, conferred by section 5 of the
Colonial Laws Validity Act, 1865, as to which see note (i)
to section 35, and note (iii) to section 69, post. It can never
go further than the Imperial parliament in this direction.
See further, on this aspect of the case, the notes to section
69, pot.

As to the nature and extent of these privileges, etc.,
reference may be made to May, Hatsell, and Bouriiiot.

(iii) ‘-Powers” The reference is, of course, to powers
other than legislative, as for example, the power to commit
for contempt, to compel the attendance of witnesses, and
to compel the production of papers, etc., etc., which may be
described as inquisitorial and punitive powers, in aid of
intelligent legislation. As to the trial of election petitions,
see notes to section 41, poxi.

(iv) “Detii)ei] Act of the parliament <>f Canada”-
Dominioii legislation upon this subject is contained in
R. S. C. (1886), c. 11, ss. 3-8, 20-23 :

(o) The ” apology ” branch of this case is, in view of.Barton v. Taylor,
of doubtful authority.

(p) See Anderson v. Dunn, G Wheat. H04, and Kilbourn v. Thompson,
103 U.S. 1G8, as to the position of Congress.

THE B. N. A. ACT^-‘SEC. 18. 265

“PRIVILEGES AND IMMUNITIES OF MEMBERS AND
OFFICERS.

3. The Senate and the House of Commons respectively-, and
the members thereof respectively, shall hold, enjoy and exercise
such and the like privileges, immunities and powers as, at the
time of the passing of ” The British Xorth America Act, 1867, ‘!-
were held, enjoyed and exercised by the Commons House of
Parliament of the United Kingdom, and by the members thereof,
so far as the same are consistent with and not repugnant to the
said Act, and also such privileges, immunities and powers as are
from time to time defined by Act of the Parliament of Canada,
not exceeding those at the time of the passing of such Act held,
enjoyed and exercised by the Commons House of Parliament of
the United Kingdom and by the members thereof respectively.

4. Such privileges, immunities and powers shall be part of
the general and public law of Canada, and it shall not be
necessary to plead the same, but the same shall, in all courts
in Canada and by and before all judges, be taken notice of
judicially.

> Upon any inquiry touching the privileges, immunities
and powers of the Senate and of the House of Commons or of
any member thereof respectively, any copy of the journals of the
Senate or House of Commons, printed or purporting to be
printed by the order of the Senate or House of Commons, shall
be admitted as evidence of such journals by all courts, justices
and others, without any proof being given that such copies were
so printed.

6. Any person who is a defendant in any civil or criminal
proceedings commenced or prosecuted in any manner for or on
account of or in respect of the publication of any report, paper,
votes or proceedings, by such person or by his servant, by or
under the authority of the Senate or House of Commons, may
bring before the court in which such proceedings are so com-
menced or prosecuted or before any judge of the same, first
giving twenty-four hours’ notice of his intention so to do to the
prosecutor or plaintiff in such proceedings or to his attorney or
solicitor, a certificate under the hand of the Speaker or Clerk of
the Senate or House of Commons, as the case may be, stating

266 THE B. N. A. ACT SEC. 18.

that the report, paper, votes or proceedings, as the case may be r
in respect whereof such civil or criminal proceedings have been
commenced or prosecuted, was or were published by such person
or by his servant, by order or under the authority of the Senate
or House of Commons, as the case may be, together with an
affidavit verifying such certificate ; and such court or judge shall
thereupon iinmediately stay such civil or criminal proceedings,
and the same and every writ or process issued therein shall be
and shall be deemed and taken to be finally put an end to,
determined and superseded by virtue of this Act.

7. If any civil or criminal proceedings are commenced or
prosecuted for or on account or in respect of the publication of
any copy of such report, paper, votes or proceedings, the defen-
dant at any stage of the proceedings may lay before the court or
judge, such report, paper, votes or proceedings, and such copy
with an affidavit verifying such report, paper, votes or proceed-
ings, and the correctness of such copy; and the court or judge
shall immediately stay such civil or criminal proceedings, and
the same and every writ and process issued therein, shall be and
shall be deemed to be finally put an end to, determined and
superseded by virtue of this Act.

8. In any civil or criminal proceeding commenced or prose-
cuted for printing any extract from or abstract of any such
report, paper, votes or proceedings, such report, paper, votes or
proceedings, may be given in evidence, and it may be shown
that such extract or abstract was published bona Jide and with-
out malice, and if such is the opinion of the jury, a verdict of

not guilty shall be entered for the defendant.

*****

EXAMINATION OF WITNESSES.

!JO Witnesses may be examined upon oath or upon affir-
mation, if affirmation is allowed by law, at the bar of the Senate,
and for that purpose the Clerk of the Senate may administer
such oath or affirmation to any such witness.

21. Any select committee of the Senate or House of Com-
mons to which any private Bill has been referred, by either
House, respectively, may examine witnesses upon oath or affir-
mation, if affirmation is allowed by law, upon matters relating;

THE B. N. A. ACT SECS. 19, 20. 267

to such Bill, and for that purpose the chairman or any member
of such committee may administer such oath or affirmation, to
any such witness.

22. Whenever any witness or witnesses is or are to be
examined by any other committee of the Senate or House of
Commons, and the Senate or House of Commons has resolved
that it is desirable that such witness or witnesses shall be-
examined upon oath, such witness or witnesses shall be exam-
ined upon oath or affirmation, if affirmation is allowed by law ;.
and such oath or affirmation shall be administered by the chair-
man or any member of any such committee as aforesaid.

23. Every such oath or affirmation shall be in the forms A
and B respectively, in the schedule to this Act.

(v) “Commons House” The House of Lords in Eng-
land has certain judicial and other functions which our
Senate does not possess. See notes to section 21, post.

19. The Parliament of Canada shall

be called together not later than six IS. of
months after the Union.

20. There shall be a Session of the
Parliament of Canada once at least in
every year, so that twelve months shall
not intervene between the last sitting of
the Parliament in one Session and its
first sitting in the next Session (i).

(i) See chapter VIII. ante, p. 168, for some observa-
tions as to the duty of a governor to insist upon the
observance of this section. In the case of the Dominion
A government no question has ever arisen, the provisions of
the section having been uniformly observed. The object of
the section, it is almost unnecessary to observe, is to pre-
serve the English rule of annual grants for the public
service. In England, the rule is guarded by the passing of
the Mutiny Act for one year only.

268 THE B. N. A. ACT SEC. 21.

THE SENATE (i).

SlStors * 21- The Senate shall, subject to the
provisions of this Act (ii), consist of
seventy-two members, who shall be styled
Senators.

(i) ” The Senate!’- Strange as it may appear, a perusal
of the debates on the Confederation Resolutions discloses
that no question was raised as to the usefulness or useless-
ness of an Upper House. The bi-cameral system would
seem to have been at that time universally favored, so far
at least as the constitution of the Dominion government
was concerned. To the delegates to the Quebec Conference
of 1864, two examples of an Upper House presented them-
selves the English House of Lords, and the United States
Senate. The position of the former in the English consti-
tutional system is very clearly defined by Bagehot :

” Since the Reform Act, the House of Lords has become a

revising and suspending House Their veto is a

sort of hypothetical veto. They say, we reject your bill this
once, or these twice, or even these thrice, but if you keep on
sending it up, at last we won’t reject it.”

The House of Lords, too, is possessed of judicial functions
of a certain sort, but it is manifest that, both historically
and in actual practice, the House of Lords is in no sense a
federal element in the Imperial scheme of government, that
in no way does it stand out as the guardian of colonial
rights. The U. S. Senate on the other hand was instituted
as a part of the federal scheme, for the very purpose of
protecting ” state rights,” and to that end, each state, large
or small, is entitled to two senators and no more. By the
Fathers of our Confederation, the Senate of Canada was
announced as answering both purposes ; as affording a \
heck on hasty or ill-digested legislation, and also as pro- \
tecting local interests and the autonomy of the provinces. 1
The attainment of the former purpose was supposed to be

THE B. N. A. ACT SEC. 21. 269

made secure by the mode of appointment, the life tenure of
the senators being held out as a guarantee for independence
in the exercise of their legislative duties ; while the equal
representation, in the Senate, of each of the distinctly
differentiated portions of the Dominion would make that
body the guardian of ” provincial rights,” or at least of local,:
as distinct from general, interests.

” In order to protect local interests, and to prevent sectional
jealousies, it was found requisite that the three great divisions
into which British North America is separated, should be repre-
sented in the Upper House on the principle of equality. There
are three great sections, having different interests, in this pro-
posed Confederation. We have Western Canada, an agricultural,
country far away from the sea, and having the largest population
who have agricultural interests principally to guard. We have
Lower Canada with other and separate interests, and especially
with institutions and laws which she jealously guards against
absorption by any larger, more numerous, or stronger power.
And we have the Maritime Provinces, having also different sec-
tional interests of their own; having, from their position,
classes and interests which we do not know in Western Canada.
Accordingly in the Upper House the controlling and regulating,
but not the initiating branch (for we know that here, as in Eng-
land, to the Lower House will practically belong the initiation
of matters of great public interest) in the House which has the
sober second- thought in legislation it is provided that each of i
those greac sections shall be represented equally by twenty-four 1
members. . . . The provision that each -of the great sections
shall appoint twenty-four members and no more, will prevent
the Upper House from being swamped from time to time by the
ministry of the day, for the purpose of carrying out their own
schemes or pleasing their partizans. The fact of the govern-
ment being prevented from exceeding a limited number, will
preserve the independence of the Upper House, and make it, in
reality, a separate and distinct chamber, having a legitimate and

controlling interest in the legislation of the country

There is this additional advantage to be expected from the limi-
tation. To the Upper House is to be confided the protection of
sectional interests ; therefore it is that the three great divisions

270 THE B. N. A. ACT SEC. 21.

are there equally represented for the purpose of defending such
interests against the combination of majorities in the Assembly.
It will, therefore, become the interest of each section to be
represented by its very best men, and the members of the
administration who belong to each section will see that such men
are chosen, in case of a vacancy in their section. For the same
reason, each State of the American Union sends its two best
men to represent its interests in the Senate.” Per Sir John A.
Macdonald, in Confed. Deb. p. 35, et seq.

^The Senate of Canada exercises no judicial functions
akin to those exercised by the House of Lords and, to a
smaller extent, by the U. S. Senate ; nor has it any execu-
tive functions like those exercised by the U. S. Senate in
*” executive session,” in relation to treaties and appointments
I to office. Its functions are purely legislative.

In the light of subsequent developments, the criticism of
I Mr. Dunkin, upon this part of the scheme of Confederation,
u reads like a prophecy. Wanting in the characteristics
(Vwhich, to some extent, uphold the exercise of authority by
i the House of Lords as a ” dignified ” part of the constitu-
tion (q], the revising and suspending functions of our Senate
/-are a myth and, in practice, are limited to rejecting bills
/ which the government desire to see defeated but do not like

Ito oppose in the popular chamber; and, wanting as its
members are in any distinctly different character, aims, and
interests from those of the members of the popular chamber,
and appointed, too, as they are, not by the provincial legis-
latures, but by the Dominion government, they are as
. strongly and continuously party men as are the members
of the House of Commons, and they divide on party, not on
provincial or sectional, lines. Such federal element as ex-
ists at all in the constitution of the Dominion government,
is in the distribution of portfolios in the cabinet, as Mr.
Dunkin predicted it would be. With the entry of Mani-
toba, British Columbia and the North West Territories into

(q) See Bagehot, p.. 89, <?/ seq.

THE B. N. A. ACT SEC. 21. 271

the Dominion, all attempt to continue the principle of equal
representation was abandoned in favor, practically, of re-
l presentation by population, so far at all events as the new
.territories were concerned. Upon the passage of an Act
forming a new province, such Act at once passes beyond the
competence of the Dominion parliament, and the representa-
tion allowed such new province in the Senate is thereafter
incapable of increase or decrease except by Imperial legis-
lation (r). The representation of the province of Manitoba
in the Senate is now three, with a maximum limit of four.
Upon the admission of Prince Edward Island, the pro-
visions of section 147, post, took effect ; and that province
is now represented by four Senators. Upon the admission
of British Columbia, the representation of that province in
the Senate was fixed at three. By the B. N. A. Act, 1886,
the Dominion parliament is empowered to make provision
for the representation, in the Senate, of any; territories which
for the time being form part of the Dominion and are not
included in any province thereof; and, pursuant to the
power granted by that statute, the North West Territories
have been given two Senators. There is this peculiarity!
about the position of the North West Territories that the
number of Senators, who may be appointed to represent .
that district, is a matter entirely for the Dominion parlia-
ment, so that it is in the power of the Dominion govern-
ment to swamp the Senate, so long as the additional
members are appointed to represent the North West Terri-i
tories. The original design has, however, left this mark’
upon our system, namely, that Ontario, Quebec, and the
Maritime Provinces are still tied down to equality of repre-
sentation in the Senate, irrespective of differences in popu-
lation, and any alteration of our constitution in this
particular must be by Imperial Act. But it only requires*
an enumeration of the number of Senators to which each\
province is entitled, to show that the position of the Senate/
as a guardian of local interests has entirely vanished.
(r) B. N. A. Act, 1871, sec. 6; see post, Part IV.

272 THE B. N. A. ACT SEC. 21.

(ii) ” Subject to the p rot /x i<ni.* of tli, i# A ct.” See sections 26 and 27, post, and notes thereto. This Act must now be construed as one with the B. N. A. Acts, 1871 and 1886. See section 3 of the latter statute. We have referred in the last note to the provisions of these statutes, both of which will be found printed in full and further discussed in Part IV. of this work. \/ SoS r oTp n ro a ” 22 In relation to the constitution of senTte!” the Senate, Canada shall be deemed to consist of three divisions (i) 1. Ontario ; 2. Quebec ; 3. The Maritime Provinces, Nova Scotia and New Brunswick ; which three divisions shall (subject to the provisions of this Act) be equally represented in the Senate as follows : Ontario by twenty- four Senators ; Quebec by twenty-four Senators ; and the Maritime Provinces by twenty-four Senators, twelve thereof rep- resenting Nova Scotia, and twelve thereof representing New Brunswick. In the case of Quebec (ii) each of the twenty-four Senators representating that Province shall be appointed for one of the twenty-four Electoral Divisions of Lower Canada specified in Schedule A. to chap- ter one of the Consolidated Statutes of Canada. (i) “Three divisions” See note (i) to section 21 ante, p. 269 et seq. (ii) “In tJu’ mxc. of Quebec.” This sub-section reveals a federal scheme within a federal scheme. See also section THE B. N. A. ACT SEC. 23. 273 “23 sub-section 6. The reason for these provisions is dis- closed in the Confederation Debates : ” It has been so arranged to suit^the peculiar position of this section of the province (s). Our Lower Canada friends felt that they had French Canadian interests and British interests to be protected and they conceived that the existing system of electoral divisions would give protection to these separate interests. We in Upper Canada, on the other hand, were quite content that they should settle that among themselves, and maintain their existing divisions if they chose.” per Hon. George Brown, Confed” Deb. 90. ” Lower Canada is in a different position from Upper Canada and there are two nationalities^ in it, occupying certain portions of the country. Well, ‘ these divisions have been made so as to secure to both nationalities their respective rights, and these, in our opinion, are good reasons for the provision that has been made.” per Sir E. P. Tache, ib. 210. 23- The qualification of a Senator ? f ua sena?oi ons shall be as follows : (1) He shall be of the full age of thirty years : (2) He shall be either a natural-born subject of the Queen, or a subject of the Queen naturalized by an Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of one of the Provinces of Upper Canada, Lower Canada, Canada, Nova Scotia, or New Brunswick, (s) i.e., of (old) Canada. CAN. CON. 18 274 THE B. N. A. ACT SEC. 24. before the Union, or of the Parlia- ment of Canada after the Union. (3) He shall be legally or equitably seised as of freehold for his own use and benefit of lands or tene- ments held in free and common socage, or seised or possessed for his own use and benefit of lands or tenements held in franc-aleu or in rotnre, within the Province for which he is appointed, of the value of four thousand dollars, over and above all rents, dues, debts, charges, mortgages, and incumbrances due or payable out of or charged on or affecting the same : (4) His real and personal property shall be together worth four thou- sand dollars over and above his debts and liabilities : (5) He shall be resident in the Pro- vince for which he is appointed : (6) In the case of Quebec he shall have his real property qualification in the Electoral Division for which he is appointed, or shall be resident in that Division. #>

le?o? nsof 24 The Governor-General^) shall
from time to time, in the Queen’s name, by
instrument under the Great Seal of Can-
ada, summon qualified persons 4o the
Senate ; and, subject to the provisions of

THE B. N. A. ACT SECS. 25, 26. 275

this Act, every person so summoned shall
become and be a member of the. Senate
and a Senator.

(i) ” The Governor-General.” The duties of the Gover-
nor-General under this section have been already discussed.
See chapter VIII. ante, p. 169, where will also be found
noted, the different meaning given to the word ” summon ”
in this section, and in section 38.

25 Such persons shall be first sum-
moned (i) to the Senate as the Queen by s<
warrant under Her Majesty’s Eoyal Sign
Manual thinks fit to approve, and their
names shall be inserted in the Queen’s
Proclamation of Union.

(i) ” Such persons shall be first summoned.” See the
Queen’s Proclamation of Union in the Canada Gazette.

26- If at any time on the recommen- teSS in
dation of the Governor- General the Queen SSS^i)
thinks fit to direct that three or six mem-
bers be added to the Senate, the Gover-
nor-General may by summons to three or
six qualified persons (as the case may be),
representing equally the three divisions
of Canada, add to the Senate accordingly.

(i) ” Addition of Senators” The Quebec Resolutions
made no provisions for any alteration in the number of
Senators, and the absence of such provision was commented
on in a despatch of the then Secretary of State for the
Colonies in these terms :

” The second point which Her Majesty’s government desire
should be reconsidered, is the constitution of the Legislative
Council. They appreciate the considerations which have
influenced the Conference in determ minor the mode in which

276 THE B. X. A. ACT SECS. 27, 28.

this body, so important to the constitution of the legislature r
should be composed. But it appears to them to require further
consideration, whether, if the members be appointed for life,
find their number be fixed, there will be any sufficent means of
restoring harmony between the Legislative Council and the
popular assembly, if it shall ever unfortunately happen that
decided difference of opinion shall arise between them.”

The above section was inserted in the Act to meet the
views of the Imperial authorities as expressed in the above
despatch, but it has never been acted upon. In the only
case in which an addition to the membership of the
Senate was sought under this section, it was refused by the
Imperial authorities (t). In view of the position to which
we have before adverted, namely, the power of the
Dominion parliament to regulate the number of Senators
from those parts of Canada not erected into provinces,
this and the next section may be said to be practically
effete. It is certainly somewhat anomalous to place in the
hands of the Imperial C abinet the power to grant or refuse
the request of the Dominion government, in a matter so
entirely one for local consideration.

ISfatoto nof 27- In case of such addition being at
any time made the Governor-General
shall not summon any person to the
Senate, except on a further like direction
by the Queen on the like recommendation,
until each of the three divisions of Canada
is represented by twenty-four Senators
and no more.

l ”

28. The number of Senators shall
not at any time exceed seventy-eight (i).

(i) ” Seventy-eight.” This is the legal limit at present,
so far as regards Ontario,Quebec and the Maritime Provinces ;

(t) See Todd, ” Parl. Govt. in Brit. Col.,” p. 1C.4

THE B. N. A. ACT SECS. 29-31. 277

namely, seventy-two under section 21, with a possible addi-
tion of six under section 26. In note (i) to section 21, we
have referred to the additions which have been made to the
membership of the Senate on the admission of the different
provinces and territories which, since Confederation, have
become part of the Dominion. See also Part IV. There is
now no ” maximum number ” as indicated in the side-note,]

29. A Senator shall, subject to the T f a “‘

Tenure of

e iu

provisions of this Act (i), hold his place b<
in the Senate for life (ii).

(i) ” Subject to the provisions of this Act!’ See the two
following sections, 30 and 31.

(ii) ” For life.’ 7 See note (i) to section 21, ante, p. 268.

30. A Senator may by writing under of^SlS 11
his hand addressed to the Governor- G-ene- s<

ral resign his place in the Senate, and
thereupon the same shall be vacant.

31. The place of a Senator shall be- giTof flca ~
come vacant in any of the following s< (1) If for two consecutive Sessions of the Parliament he fails to give his attendance in the Senate : (2) If he takes an oath or makes a declaration or acknowledgment of allegiance, obedience or adherence to a foreign power, or does an act whereby he becomes a subject or citizen, or entitled to the rights or privileges of a subject or citizen of a foreign power : 278 THE B. N. A. ACT SECS. 32.33. (3) If he is adjudged bankrupt or in- solvent, or applies for the benefit of any law relating to insolvent debtors, or becomes a public de- faulter : (4) If he is attainted of treason or con- victed of felony or of any infamous crime : (5) If he ceases to be qualified in re- spect of property or of residence; provided, that a Senator shall not be deemed to have ceased to be qualified in respect of residence by reason only of his residing at the seat of the Government of Canada while holding an office under that Government requiring his presence there. ^ S aS!fc y r ^n on 32. When a vacancy happens in the Senate by resignation, death, or other- wise, the Governor-General shall, by summons (i) to a fit and qualified person fill the vacancy. (i) ” jtfyv summons!’ See note (i) to section 24, and also chapter VIII. ante, p. 170. ?o u quai ifica- s 33- If an y question arises respecting vac n a s ncie d sin the qualification of a Senator or a vacancy in the Senate the same shall be heard and determined by the Senate (i). (i) ” Determine* I !>>/ f!>f j tf finite” Up to the date of Con-
federation, the legislatures of the various provinces had

THE B. N. A. ACT SECS. 34, 35. 279

retained in their own hands the jurisdiction to determine all
questions relating to the status of their members, and for
some years after Confederation, the parliament of the Do-
minion exercised like jurisdiction. Section 41, however, of
the B.N. A. Act (see post) impliedly empowers the Dominion
parliament to provide otherwise as to the House of Com-
mons, and as the notes to that section will show, this
power has been acted upon. No similar power is given by
the B. N. A. Act to alter the provisions of this section 33, as
to determining the status of members of the Senate. As
they are not elected by popular vote, question can hardly
arise as to the mode of appointment, unless indeed appoint-
ments were made in excess of those allowed by the Act. As
the various matters which work disqualification, are, with
the exception of the failure to give attendance in the
Senate (see section 31, sub-section 1), matters as to which
questions of disputed fact might arise, it may be worth
consideration whether the determination of these matters
should not be left to the courts. Up to the present time
however, none of the sub-sections of section 31 have been
invoked, with the exception of sub-section 1, and upon that
head, the proof of disqualification would appear in the
Senate’s journals.

34. The Governor- General may from o/ipea? nt
time to time, by instrument under the Ol
Great Seal of Canada, appoint a Senator
to be Speaker of the Senate (i), and mayJK’
remove him and appoint another in his
stead.

(i) See R. S. C. (1886), chapter 11, section 24 (a), which j
provides for a salary of $4,000 per annum for the Speaker/
of the Senate. See note to section 44, post.

35- Until the Parliament of Canada
otherwise provides (i), the presence of

280 THE B. N. A. ACT SEC. 35.

at least fifteen Senators, including the 1
Speaker, shall be necessary to constitute
a meeting of the Senate for the exercise-
of its powers.

(i) ” Until the parliament of Canada otherwise pro-
vides” See Valin v^Xanglois (5 App. Cas. 115), in which it-
was held that under these same words, in section 41, the
Dominion parliament has full power to pass laws in
relation to the various matters enumerated in that section..
It follows, therefore, that (apart altogether from the pro-
visions of the Colonial Laws Validity Act, 1865, about to*
be noted) the ” quorum ” of the Senate may be altered by
the Dominion parliament. Compare section 48, post, as to>
the ” quorum ” of the vHouse of Commons. This latter
cannot so far as the B. N. A. Act affects the question-
be altered by anything short of Imperial legislation. But,
in reference to the constitution of all colonial legislative
bodies, the provisions of the Colonial Laws Validity Act,.
1865, must not be overlooked. By the fifth section of that
Imperial Statute, it is enacted :

‘ ” 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 ;
provided that such laws shall have been passed in such manner
and form as may from time to time be required by any Act of
parliament, letters patent, Order in Council or colonial law, for
the time being in force in the colony.”

It may perhaps be contended that this section cannot
apply to Canada, as the B. N. A. Act, 1867, is of a later
date ; and, certainly, so far as the latter statute contains
express provision in reference to the matters referred to in
the section quoted, its provisions would govern.

No colonial legislature, it is submitted, can under this,
section enlarge the sphere of its legislative jurisdiction, and,.
a fortiori, no such authority is conveyed by this section to

THE B. N. A. ACT SEC. 36. 281

any legislative body in Canada, where the field for the
exercise of colonial legislative power is divided in such
express terms by the B. N. A. Act. The section relates to
the organization of the legislative bodies throughout the
colonies, their powers other than legislative, and the mode,
in which their functions are to be performed, and has no
relation to their sphere of authority. It is submitted,
therefore, that the Dominion parliament has full power to
alter these various provisions of the B. N. A. Act, relating’
to powers and procedure, except where express or implied
limitation upon such power (as, for instance, by section 18,
ante) is imposed by the Act.

So far as the provincial legislatures are concerned,
express power to amend the provincial ” constitutions ”
(except as regards the office of Lieutenant-Governor) is
conferred by section 92 (sub-section 1), of the B. N. A. Act,
and the maxim Expressio unius exclusio est alter ins may ,
perhaps be invoked in denial of the power of the Dominion ,
parliament along this line. The argument cannot apply to
the question of parliamentary ” procedure,” but it does very
strongly negative any power in the Dominion parliament to
alter its “constitution,” that being a matter fixed by the
agreement of the federating provinces and exhaustively dealt
with by the B. N. A. Act. The difficulty is, perhaps, to
define what provisions of the B. N. A. Act relate to the
” constitution ” and what to the ” procedure ” of the
Dominion parliament. See further upon this question,
sections 69 and 92 (sub-section 1), post, and notes thereto.

36- Questions arising in the Senate SSSSI. 1 ?!)
shall be decided by a majority of voices,
and the Speaker shall in all cases have a
vote, and when the voices are equal the
decision shall be deemed to be in the
negative.

(i) ” Voting in the Senate.” Compare sections 49, 79,
and 87, and see note to last section.

282 THE B. N. A.” ACT SEC. 37.

The House of Commons.

37- The House of Commons shall,
subject to the provisions of this Act (i),
consist of one hundred and eighty-one (ii)
members, of whom eighty-two shall be
elected for Ontario, sixty-five foi Quebec,
nineteen for Nova Scotia, and fifteen for
New Brunswick.

(i) “Subject to the provisions of this Act!’ See section
51, post, providing for a re-distribution of the representa-
tion, as between the various provinces, after each decennial
census. See also section 52, which provides that the
number of members of the House of Commons may he,
from time to time, increased, provided the proportionate
representation is not thereby affected. Upon the admission
of Prince Edward Island and British Columbia, and upon
the formation of the Province of Manitoba, the representa-
tion in the House of Commons from those provinces was
determined, but subject in each case to re-distribution
under section 51. See Part TV., post. The North West Terri-
tories would seem to be in a peculiar position with regard
to ‘their representation in the House of Commons as well as
in the Senate. As to the former, see note (i) to section 21 ,
ante p. 271. As to the latter, see the B. N. A. Act, 1886,
which apparently does not limit the power of the Dominion
parliament by any reference to section 51 unless, indeed,
the provision (section 3) that the B. N. A. Acts of 1867>
1871, and 1886, are to be construed together, would have
the effect of making applicable to the representation of the
territories, the provisions of section 51. This can hardly
be, however, as section 51 is distinctly limited to the distri-
bution of representation as between the ” provinces.”

(ii) ” 181 inembers.” There has just been passed l>y the
Dominion parliament a re-distribution bill, consequent upon

THE B. N. A. ACT SECS. 38-40. 283

the census of 1891, which apportions the membership as

follows: (55-56 Vic. c. 11). /r ^3

Ontario ………. 92

Quebec ………. 65

New Brunswick ……. 14

Nova Scotia …….. 20 t \

Prince Edward Island ….. 5

Manitoba …….. . 7

British Columbia …… 6

Total 209 L-

To which add the representation to
which the N. W. Territories are
entitled under R. S. C. c. 7 . . . 4

Grand total 213

38. The Governor-General shall from *?

i i ii r\ ) i Commons.

time to time, in the Queen s name, by in-
strument under the Great Seal of Canada,
summon and call together the House of
Commons (i).

(i) See chapter VIII., ante, p. 168, as to the exercise by
the Governor-General of the prerogatives of the Crown, in
connection with the summoning, proroguing and dissolving
of parliament , where will also be found noted the difference
in the meaning of the word “summon” as applied to the
members of the House and of the Senate respectively.

39. A Senator shall not be capable
of being elected or of sitting or voting as
a member of the House of Commons.

40. Until the Parliament of Canada
otherwise provides, Ontario, Quebec, Nova 10
Scotia, and New Brunswick, shall, for
the purposes of the election of mem-

284 THE B. N. A. ACT SEC. 41.

bers to serve in the House of Commons r
be divided into Electoral Districts as fol-
lows : [Here follows an enumeration
(with reference to schedules) of the elect-
oral districts in the provinces named. In
view of what appears in note (i) to section
41, it appears needless to reprint this
enumeration.]

41. Until the Parliament of Canada-
otherwise provides (i), all laws in force in

inent of Cana- . , .

the several Provinces at the Union rela-
tive to the following matters or any of
them, namely, the qualifications and dis-
qualifications of persons to be elected or
to sit or vote as members of the House
of Assembly or Legislative Assembly in
the several Provinces, the voters at elec-
tions (ii) of such members, the oaths to be
taken by voters, the Keturning Officers,
their powers and duties, the proceedings
at elections, the periods during which
elections may be continued, the trial of
controverted elections (iii), and proceed-
ings incident thereto, the vacating of
seats of members, and the execution of
new writs in case of seats vacated other-
wise than by dissolution, shall respec-
tively apply to elections of members to<
serve in the House of Commons for t he-
same several Provinces.

Provided that, until the Parliament of
Canada otherwise provides, at any elec-

THE B. N. A. ACT SEC. 41. 285

‘tion for a Member of the House of Com-
mons for the District of Algoma, in
^addition to persons qualified by the law
Cas. 102.

THE B. N. A. ACT SEC. 41. 289

determining the status of those who claimed to be members of the

Legislative Assembly.”

and the Committee held, in that case, that those Acts did

not annex to the decisions of the tribunals constituted by

them, the ordinary incident of being reviewed by the Crown

under its prerogative right to hear appeals from colonial

courts.

Were there any question of the right of a colonial
legislature to set up and exercise such a claim (see notes to
section 18, ante, p. 262, and section 69, post), the above sec-
tion 41, and the corresponding section (section 84), as to the
legislatures of Ontario and Quebec, w^ould seem sufficient
statutory acknowledgment of it, and, as noted by Ritchie,
C.J., Theberge v. Landry is a distinct recognition of its ex-
istence. The particular point involved in Valin v. Langlois\
was as to the power of the Dominion parliament to confer
upon provincial courts, jurisdiction to try petitions under the
Dominion Controverted Elections Act, 1875, and this will be\
found discussed in chapter XI, ante, p. 231, et seq. and in |
the notes to section 92, sub-section 14, post. It was
held that the statute was intra vires (3 S. C. R. 1, and 5
App. Cas. 115), and we need here only note that, in the view
of the Judicial Committee of the Privy Council, the opening
clause of section 41 : ” Until the parliament of Canada
otherwise provides”: impliedly conferred upon the Dominion
parliament full power to make laws in relation to the
matters enumerated in the remainder of the section, al-
though not enumerated in any of the various sub-sections
of section 91 and this, irrespective of the construction to
be put upon the general words of the opening clause of
section 91.

” 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. Its
/'”S therefore, the parliament of Canada which was otherwise to
tirovide. It did otherwise provide by the Act of 1873, which
Act it afterwards alterecl and then passed the Act now in question.
CAN. CON. 19

290 THE B. N. A. ACT SEC. 42.

So far, it would appear to their Lordships very difficult to
suggest any ground upon which the competency of the parlia-
ment of Canada so to legislate could be called in question.”
per Lord Selborne, 5 App. Gas. at p. 119. See also per Ritchie,
C.J., 8S. C. R. at p. 11.

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 (affirm-
ing 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 contention of the defendant was, that the giving of a
right of action to an informer was legislation as to ” civil
rights in the province,” and therefore ultra rires. See
notes to section 92, sub-section 13, post.

The trial of controverted elections was transferred to the

courts, in England in 1868 ; in Ontario in 1870, (34 Vic. e. 3) ;

Jin Quebec in 1872 (36 Vic. c. 5) ; by the Dominion parliament

I in 1873. See also 35 Vic. c. 10 (Manitoba) ; Con. Stat. c. 40

(British Columbia) ; R, O. 1888, c. 5 (N. W. Territories) ;

32 Vic. c. 32 (New Brunswick) ; 37 Vic. c. 21 (P. E. Island) :

and 38 Vic. c. 25 (Nova Scotia).

de r ctfon 0rfirst 42. For the first election of members
to serve in the House of Commons the
Governor- General shall cause writs to be
issued by such person, in such form, and
addressed to such Returning Officers as
he thinks fit.

The person issuing writs under this
section shall have the like powers as are

THE B. N. A. ACT SEC. 43-45. 291

possessed at the Union by the officers
charged with the issuing of writs for the
election of members to serve in the re-
spective House of Assembly or Legislative
Assembly of the Province of Canada,
Nova Scotia, or New Brunswick ; and the
Returning Officers to whom writs are
directed under this section shall have the
like powers as are possessed at the Union
by the officers charged with the returning
of writs for the election of members to
serve in the same respective House of
Assembly or Legislative Assembly.

As to casual
vacancies.

43- In case a vacancy in the repre-
sentation in the House of Commons of
any Electoral District happens before the
meeting of the Parliament, or after the
meeting of the Parliament before provision
is made by the Parliament in this behalf,
the provisions of the last foregoing section
of this Act shall extend and apply to the
issuing and returning of a writ in respect
of such vacant District.

44- The House of Commons on its

first assembling after a general election commons.
shall proceed with all practicable speed to
elect one of its members to be Speaker.

45- In case of a vacancy happening *
in the office of Speaker by death, resigna- sS
tion or otherwise, the House of Commons
shall with all practicable speed proceed

to tilling
vacancy in

292 THE B. N. A. ACT SECS. 46, 47.

to elect another of its members to be
Speaker.

piSa e e rto 46- The Speaker (i) shall preside at

all meetings of the House of Commons.

(i) ” The Speaker” See R. S. C. (1886), c. 11, s. 24,
which provides that the salary of the Speaker of the House
of Commons shall be $4,000 per annum. The duties of the
Speaker are not defined in the B. N. A. Act, otherwise than
by section 46, but his position (the same is true of the posi-
tion of the Speakers of the various Legislative Assemblies)
is practically the same as that of the Speaker of the House
of Commons in England. His functions are to a certain
extent of a semi-judicial nature, and he is supposed to have
/ thrown aside all party bias upon his elevation to the chair.
See Bourinot ” Parl. Proc. and Prac.” (2nd ed.) p. 202, et seq.,
where will be found a succinct statement of his position and
duties. By way of contrast, see Prof. Wilson’s ” Congres-
sional Government ” for a clear statement as to the position
of the Speaker of the House of Representatives at Washing-
ton. There he is supposed to exercise the powers of his
office in furtherance of the aims of his political party, and
is practically the leader of that party in the House ; the
chairmen of the various standing committees of Con-
gress are appointed by him, and by exercising judicious
selection in this respect he is able to ensure that his views :
upon public matters will find practical expression in the 1
work of Congress.

47. Until the Parliament of Canada
otherwise provides (i), in case of the ab-
sence for any reason of the Speaker from
the chair of the House of Commons for a
period of forty- eight consecutive hours,
the House may elect another of its mem-
bers to act as Speaker, and the member

THE B. N. A. ACT SECS. 48-50. 293

so elected shall during the continuance
of such absence of the Speaker have and
execute all the powers, privileges, and
duties of Speaker.

(i) ” Until the Parliament of Canada otherwise pro-
vides.” See note (iii) to section 41, ante. By 48 & 49 Vic.
c. 1, there was created the office of Deputy Speaker, with
powers as by that statute defined.

48. The presence of at least twenty m f of
members of the House of Commons shall c<
be necessary to constitute a meeting of
the House for the exercise of its powers,
and for that purpose the Speaker shall be
reckoned as a member.

49. Questions arising in the House of
Commons shall be decided by a majority c
of voices other than that of the Speaker
and when the voices are equal, but not
otherwise, the Speaker shall have a vote.

(i) ” Quorum’ “voting” Compare sections 35 and 36,
and see notes to those sections. See also section 87, and
notes thereto, post.

50. Every House of Commons shall Duration of

House of
Commons.

continue for live years (i) from the day of
the return of the writs for choosing the
House (subject to be sooner dissolved (ii)
by the Governor- General), and no longer.

(i) “Shall continue for five years.” This is one of those
matters which, it is submitted, the Dominion parliament ‘
has no power to alter see note (i) to section 35, ante
while provincial legislatures may lengthen or shorten the
period of their own duration. See section 92, sub-section 1.

294 THE B. N. A. ACT SEC. 51.

(ii) “Dissolved by the Governor-General! ‘See chapter
VIII., ante, p. 165, for a full discussion of the powers of the
Governor-General in connection with the summoning, pro-
roguing, and dissolving of parliament.

?dTu e s Tmenfot 51- On the ‘completion of the census
Soii res< in the year one thousand eight hundred
and seventy-one, and of each subsequent
decennial census, the representation of
the four Provinces shall be readjusted by
such authority (i), in such manner and
from such time as the Parliament of Can-
ada from time to time provides, subject
and according to the following rules :

(1) Quebec shall have the fixed num-
ber of sixty-five members.

(2) There shall be assigned to each
of the other Provinces such a
number of members as will bear
the same proportion to the number
of its population (ascertained at
such census) as the number sixty-
five bears to the number of the
population of Quebec (so ascer-
tained).

(3) In the computation of the num-
ber of members for a Province a
fractional part not exceeding one-
half of the 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 equiv-
alent to the whole number.

THE B. N. A. ACT SEC. 51. 295

(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 ^-J-
one-twentieth part or upwards.

(5) Such re-adjustrnent shall not take
effect until the termination of the
then existing Parliament.

(i) ” By such authority.” From the debates on the
Quebec Resolutions in the parliament of (old) ‘Canada, it
would appear that some uncertainty existed as to the terms
of the 24th resolution. As printed in the volume of Debates
on Confederation (published by authority), resolutions Nos.
23 and 24, read as follows :

“23. The legislature of each province shall divide such pro-
vince into the proper number of constituencies and define the
boundaries of each of them.

” 24. The local legislature of each province may, from time to
time, alter the electoral districts for the purpose of representation
in suck local legislature, and distribute the representation to which
the province is entitled in such local legislature, in any manner
such legislature may see fit.”

In Gray’s ” Confederation ” Mr. Gray was a delegate
to the Conference, from New Brunswick the 24th resolu-
tion is given thus :

” The local legislature of each province may, from time to
time, alter the electoral districts for the purposes of representation
in the Home of Commons, and distribute the representation to

296 THE B. N. A. ACT SEC. 51.

which the province is entitled in any manner such legislature
may see fit.”

In moving the resolutions in the House, the Attorney-
General- West (Sir John A. Macdonald) said :

” A good deal of misrepresentation has arisen from the acci-
dental omission of some words from the 24th resolution. It was
thought that by it the local legislatures were to have the power
of arranging hereafter, and, from time to time, of re-adjusting
the different constituencies, and settling the size and boundaries
of the various electoral districts. The meaning of the resolution
is simply this : that for the first General Parliament, the arrange-
ment of constituencies shall be made by the existing local legis-
latures ; that in Canada, for instance, the present Canadian
parliament shall arrange what are to be the constituencies of
Upper Canada, and to make such changes as may be necessary
in arranging for the 17 additional members given to it by the
constitution ; and that it may also, if it sees fit, alter the
boundaries of the existing constituencies in Lower Canada. In

(short, this parliament shall settle what shall be the different
constituencies electing members to the first Federal Parliament.
And so the other provinces, the legislatures of each will fix the

J limits of their several constituencies in the session in which they
adopt the new constitution. Afterwards the local legislatures
may alter their own electoral limits as they please, for their own
local elections. But it would evidently be improper to leave to
the local legislatures the power to alter the constituencies send-
ing members to the General Legislature, after the General
Legislature shall have been called into existence. . . . No ;
after the General Parliament meets, in order that it may have
full control of its own legislation, and be assured of its position,
it must have the full power of arranging, and re-arranging the
electoral limits of its constituencies as it pleases, such being one
fof the powers essentially necessary to such a legislature.
Confed. Deb. p. 39.

Both of these resolutions were struck out at the con-
ference, in London, of the delegates from those provinces
which had agreed to the Quebec Resolutions, probably
because the limits of the various constituencies had been

THE B. N. A. ACT SEC. 51. 297

settled by the local legislatures in the manner pointed out
by Sir John Macdonald, and such, arrangement was put
into statutory form, in section 41. Nothing appears in these
resolutions, or in the debates thereon, in reference to the
question of delegating the power of “distribution ” to an
authority independent of parliament ; but, as we write, the
question has been raised in the Dominion parliament, and
two of the Fathers of Confederation are reported to have
stated that the above section 51, was deliberately framed as
it is, in order 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 re-dis-
tribution after both the census of 1871 and of 1881, was
effected by an Act of the Dominion parliament in the exer-
cise of its ordinary legislative functions ; and an Act (55-56
Vic. c. 11) has just been passed by the Dominion parliament
providing for the re-distribution consequent upon the census
^a I T of 1892. As a legal proposition, the power of the Dominion
yparliament to constitute itself the authority by which the
re-adjustment is to be effected, cannot be doubted what-
ever may be said of the impropriety of so doing. Under
section 40, ante, p. 283, the power of the Dominion
parliament to alter electoral districts is clearly estab-
lished. See note (i) to section 41. This section 51
applies only to the re-adjustment of the representation
of the provinces as betiveen themselves, and has no refer-
ence to the boundaries of the electoral districts in each
province, and it would appear therefore that the re-
adjustment, under this section, is a matter merely of
mathematics. The wording of section 52 bears out this
construction, indicating as it does that the “fixed quantity”
in the scheme of representation, is the proportionate repre-
sentation of the provinces. The electoral districts may be
altered at any time (section 40), and the total number of
members increased (section 52), by the parliament of Canada,

:

2!)S THE B. N. A. ACT SECS. 52-54.

” provided the proportionate representation of the provinces
prescribed by this Act is not thereby disturbed.”

nu c iS e o/ 52 The number of members of the

commons. House of Commons may be from time to
time increased by the Parliament of Can-
ada, provided the proportionate represen-
tation (i) of the Provinces prescribed by
this Act is not thereby disturbed.

(i) ” TJtc proportionate representation” See note (i)
to section 37, ante.

MONEY VOTES (i), EOYAL ASSENT.

53. Bills for appropriating any part
of the public revenue, or for imposing any
tax or impost, shall originate in the
House of Commons.

(i) :: Money vote*” The subject of money votes relates
more particularly to parliamentary procedure and practice ,
and the subject will be found fully discussed in Dr. Bouri-
riot’s work upon that subject (2nd ed., chapter XVII). The
restriction provided for by section 54 was first introduced
into Canada by the Union Act, 3 & 4 Vic. c. 35,
s. 57. See Lord Durham’s report, “p. 34. The restric-
tion is enforced by the Speaker upon a point of order
taken.

54, It shall no t be lawful for the
House of Commons to adopt or pass any
vote, resolution, address, or bill for the
appropriation of any part of the public
revenue, or of any tax or impost, to any
purpose that has not been first recom-
mended to that House by message of the
Governor-General in the Session in which

\

THE B. N. A. ACT SECS. 55, 56. 299

such vote, resolution, address, or bill is
proposed.

55. Where a bill passed by the ? TiL a & c el (i).
Houses of Parliament is presented to the
Governor-General for the Queen’s assent,

he shall declare, according to his discre-
tion, but subject to the provisions of this
Act and to Her Majesty’s instructions,
either that he assents thereto in the
Queen’s name, or that he withholds the
Queen’s assent, or that he reserves the
bill for the signification of the Queen’s
pleasure.

(ij ” Royal assent!’ The provisions of this and the
two following sections have been already fully discussed ;
see ante, chapter VII., p.1.42, et seq.

56. Where the Governor-General as- J^rdeJS 06

sents to a bill in the Queen’s name, he awS

Governor
shall by the first convenient opportunity General.

send an authentic copy of the Act to one
of Her Majesty’s Principal Secretaries of
State; and if the Queen in Council within
i-.Yffi-yftfl.rs after the receipt thereof by the
Secretary of State thinks fit to disallow
the Act, such disallowance (with a certifi-
cate of the Secretary of State of the day
on which the Act was received by him)
being signified by the Governor-General,
by speech or message, to each of the
Houses of the Parliament, or by proclama-
tion, shall annul the Act from and after
the day of such signification.

300 THE B. N. A. ACT SECS. 57, 58.

of QueeS cn 57. A bill reserved for the significa-
d. tion of the Queen’s pleasure shall not
have any force unless and until within two
years from the day on which it was pre-
sented to the Governor- General for the
Queen’s assent, the Governor-General sig-
nifies, by speech or message, to each of the
Houses of the Parliament or by proclama-
tion, that it has received the assent of the
Queen in Council.

An entry of every such speech, mes-
sage, or proclamation shall be made in the
Journal of each House, and a duplicate
thereof duly attested shall be delivered to
the proper officer to be kept among the
Records of Canada. ^

V. PROVINCIAL CONSTITUTIONS (i).
Executive Power (ii).

58- For each Province there shall be

nors G o < ? er an officer (in), styled the Lieutenant-
provinces. . \ .

Governor (iv), appointed by the Governor-

General in Council by instrument under
the Great Seal of Canada (v).

(i) ” ‘Provincial constitutions” In chapter III. will be
found a discussion of the question how far the pre-Con-
federation provincial constitutions are continued by the
B. N. A. Act. That chapter was written in order to show
^hat the working principle of those earlier constitutions
was evidently intended to be continued in the constitutions
of the provinces as defined in the B. N. A. Act. Ever since
the passage of that Act, there has been in progress a peace-
ful warfare as to the position of the provinces under our

THE B. N. A. ACT SEC. 53. 301

constitutional system, a conflict not yet perhaps ended
but now become hopeless to those who would deny the
full autonomy of the provinces in relation to all those
matters which, by the B. N. A. Act, are committed to the;
legislative authority of the provincial assemblies. In the*
earlier stages, the attack was directed toward narrowing
the range of the legislative power of the provinces, and this
phase of the conflict has been already dealt with in chapter
X. At the present time the debateable ground is that
relating to the exercise of executive power) in connection
with the government of the provinces, the contention of
those who would belittle the executive ” sphere of
authority ” of the provinces being, in effect, that under the
B. N. A. Act, there has been a severance of the functions
of government in relation to some, at least, of those subject
matters which, for purposes of legislative action, have
been committed to the provinces. In the earlier pages
of this book we have not hesitated to attack this
position, and further reference to the question will be found
in the following notes. We should mention, however, that
the first three chapters of this book were already in press
before the report of the judgment of the Judicial Committee,
in Liquidators of Maritime Bank v. Receiver General of
New Brunswick (Times L. R. Vol. VIIL, p. 677) reached us,
and this fact will account for the lack of reference to this
important decision as supporting the views expressed in
those chapters upon this question of the position of the
provinces. The particular point for decision was as to ‘the
right of the provincial executive of New Brunswick to
claim the benefit of the prerogative right of the Crown to I
priority over other creditors, in the winding up of the ‘
affairs of the Bank, but the judgment of the Committee
deals with the general question, and, as we have already
intimated, affirms, with final authority, the full autonomy \
of the provinces.

“The appellants conceded that, until the passage of the
B. N. A. Act, 1867, there was precisely the same relation between

302 THE B. N. A. ACT SEC. 58.

the Crown and the province which now subsists between the
Crown and the Dominion ; but they maintained that the effect of
the statute had been to sever all connection between the Crown
and the provinces, to make the government of the Dominion the
only government of Her Majesty in North America, and to reduce
the provinces to the rank of independent municipal institutions.
For these propositions their Lordships have been unable to find
either principle or authority. Their Lordships do not think it
necessary to examine in minute detail the provisions of the Act
of 1867, which nowhere professed to curtail in any respect the
rights and privileges of the Crown, or to disturb the relations
then subsisting between the Sovereign and the provinces. The
object of the Act was neither to weld the provinces into one, nor
to subordinate provincial governments to a central authority,
but to create a federal government in which they should all be
represented, intrusted with the exclusive administration of affairs
in which they had a common interest, each province retaining
its independence and autonomy. That object was accomplished
by distributing between the Dominion and the provinces all
powers, executive and letjislatice, and all public property and
revenues which had previously belonged to the provinces, so that
the Dominion government should be vested with such of those
powers, property, and revenue as were necessary for the due per-
formance of its constitutional functions, and that the remainder
should be retained by the provinces for the purposes of provincial
.government.”

(ii) ” Executive power!’ In arriving at a proper under-
standing of the position of the provincial executive, nothing
is more essential than to have a definite idea of the neces-
sary connection which, in any country where the govern-
ment is a govemment-according-to-law, must exist between
the legislative and executive powers in government: and
various phases of this question will be found discussed in
chapter I. (ante, p. 12, et wq.) t chapter III. (<nrtr, p. 45,
ft *cq.}, and chapter VI. (ante, 142, et $eq.}, and in the notes
to section 9, ante, and the other notes to this section 58.

(iii) ” Thw. **lmll \t<> n officer.” Compare section 10

THE B. X. A. ACT SEC. 58. 303

ante, and see notes thereto. See also chapter III., ante, p.
48, and notes to section 59, post.

(iv) ” The Lieutenant-Governor.” The Lieutenant-^
Governor of a province is the chief executive officer ” carry- ‘
ing on the government of the province ” see section 62,
post. In some of the cases will be found discussed the
question whether or not a Lieutenant-Governor is to be
considered a representative of the Queen. In Regina y.
Amer (y\ Harrison, C.J., laid it down that the Governor-
General is the only officer named in the B. N. A. Act who
answers that description see notes to section 10, ante; arid’
in Regina v. Bank of Nova Scotia, in our Supreme Court,
Mr. Justice Taschereau says (z) : ” The Lieutenant-Gover-
nors, no doubt, in the performance of certain of their duties
as such, under the B. N. A. Act, may be said to represent Her
Majesty in the same sense, and as fully, perhaps, as Her
Majesty is represented, for instance, by justices of the peace,
constables, and bailiffs, in the execution of their duties.” A
reference to chapter VIII., ante, and to the cases which
define the position of the Governor of a colony, will show
that this description of a Lieutenant-Governor is equally
applicable to the Governor-General. Both are “officers,”‘
with powers, authorities, and functions distinctly limited,
and they can be said to represent Her Majesty, not in the ,
sense of being Viceroys, but only to the extent to which
powers are delegated to them, by virtue of their commis-
sions, or under the B. N. A. Act. In the very case to w T hich
we have last referred The Queen v. Bank of Nova Scotia
Mr. Justice Strong points out that the Queen is at the head
of the government of Canada see section 9 and notes
thereto. This section, as was pointed out, is declaratory,
and, so considered, it entirely agrees with what is laid
down by the older writers as to the necessary unity of
executive government throughout the Empire. ” The King
of England is therefore not only the chief, but properly

(y) 42 U. C. Q. B. 391. (z) 11 S. C. R at p. 24.

304 THE B. N. A. ACT SEC. 58.

the sole magistrate of the nation ; all others acting by com-
mission from, and in due subordination to him” (<i).
! Anything therefore which may be said in the way of
belittling the office of Lieutenant-Governor, is equally
applicable to the position of the Governor-General with
this difference, of course, that the territorial sphere of
authority of the latter is larger, and the range of matters
in connection with which his powers may be exercised quite
different from that of a Lieutenant-Governor. But each of
these officers is characterized by the B. N. A. Act see sec-
tions 10 and 62 as the chief executive officer “carrying on
jthe government ” of the Dominion and the provinces re-
-spectively. Any officer, exercising executive functions
anywhere in the British Empire, must act under commis-
sion from the Queen, and, to the extent indicated by his
commission and any Imperial statute in that behalf, does
represent, and act on behalf of and in the name of, the
executive head of the Empire. We pointed out in the
notes to section 9, ante, that the Governor-General of
Canada occupies a dual position, and the same may be said
of the Lieutenant-Governor of a province. In a sense, he
is a member of the executive staff of the Dominion govern-
ment, as well as executive head of the province. But there
is this difference to be noted between his position, and that
of the Governor-General, namely, that while, on the one

/ hand ; the Imperial parliament has legally unlimited power
over the Dominion in respect of every conceivable subject
matter, and may therefore increase or diminish the power

[ of a Governor-General, the parliament of Canada, on the
other hand, cannot invade the legislative sphere of a pro-
vincial assembly, or interfere in relation to its executive

, head. This practical result therefore ensues that a Lieuten-
ant-Governor, once appointed, is subject to the “instruc-
tions” of the Governor-General only upon, at most, those
matters in respect to which the executive of the Dominion

(n) Chitty, p. 4.

THE B. N. A. ACT SEC. 58. 305

is entitled to exercise supervision over provincial legisla-J
tion. As executive head of a province, the Lieutenant-
Governor is commissioned, by the B. N. A. Act, to ” carry
on the government of the province ” ; and any attempt to
instruct him as to how he should exercise the powers,
authorities, and functions of his office in relation to matters
within the sphere of provincial authority, would be in
direct subversion of the principle of provincial autonomy
as now authoritatively declared.

The division of subject matters affected by that Act
being exhaustive (i. e., exhaustive of all matters over which
colonial legislatures have power) and exclusive as well (b),
the same principle must be acknowledged in reference to
the division of those matters for executive action. Most of
the cases which have arisen under the B. N. A. Act have
involved enquiry as to the position of the dividing line,
for legislative purposes, between Dominion and Provincial
jurisdiction ; but, as we have always insisted, the ascertain-
ment of such line is at the same time the ascertainment of
the line of division for executive action. In more recent
times the question has arisen directly in reference to the
exercise of executive power, and the courts of Ontario have
distinctly recognized the principle for which we have been
contending. Reference has been made to the limitation of
sections 12 and 65 to statutory “powers,” etc.; and as to
these, the provisions -of the B. N. A. Act seem to be per-
fectly clear. See chapter III., ante, p. 50. The dispute!
has been in reference to what may be called prerogatives j
proper, viz., those powers connected with executive govern-!
meiit which depend for their efficacy upon the common law.\

In 1887, the Legislative Assembly of Ontario passed j
“an Act respecting the executive administration of the laws
of this province,” making provision as to the exercise of;
executive authority in connection with these common law< prerogatives. The question of the validity of this Act was (b) See Chapter X. CAN. CON. 20 306 THE B. N. A. ACT SEC. 58. submitted to the Divisional Court of the Chancery Division, which decided in favor of its validity, and an appeal to the Court of j Appeal for Ontario was dismissed. The Act was distinctly limited to executive action in connection with those subject matters over which the provincial legislative assembly has jurisdiction, and (construing the Act as so limitedythe courts decided that, although possibly the Act Avas unnecessary, it could not be said to be ulti- vires. The position may be summed up in the language of Mr. Justice Burton (c): ” 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, firtute officii, and without express statutory enactment, to exer- jcise all prerogatives incident to executive authority in matters in [which provincial legislatures have jurisdiction; that he had in fact delegated to him the administration of the royal prerogatives as far as they are capable of being exercised in relation to the government of the provinces, as fully as the Governor- General has the administration of them in relation to the government of the Dominion In my view, no legislation was necessary, but/ to remove doubts, such an Act seems desirable and free from objection.” Reference should no.v be added to the passage from the judgment of the Privy Council quoted in note (i), Hittr, p. 302, and to the further passage quoted in the next note. See. also, notes to section 09, y><;-< as to the position of the Lieutenant-Governor in relation to the provincial assem- blies, where we have endeavored to make clear that tin- Queen is a constituent branch of such assemblies, being- represented therein by the Lieutenant-Governor, just as she is represented in the Dominion parliament by the Governor- General (v) “Ai>i>ui itiwl hi/ //’/” Governor-General, etc!’- Much
stress has been laid upon this clause in support of the coii-

(c) Atty.-Genl. for Canada v. Atty.-Genl. of Ont., 19 0. A. R. at
p. 38.

THE B. N. A. ACT SEC. 58. 307

tention that a Lieutenant-Governor is not a representative I
of the Crown, but of the Governor-General. The following
extract from the judgment of the Judicial Committee of the
Privy Council in Liquidators, &c. v. Receiver-General of
New Brunswick, will show how the question has been
finally disposed of :

” The appellants …. relied upon the fact that,
whereas the Governor-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 dismissal. If ‘ the Act had not committed to the
Governor-General the power of appointing and removing Lieu-
tenant-Governors, there would have been no room for the argu-
ment, which, if pushed to its logical conclusion, would prove that
the Governor-General, and not the Queen, whose^ viceroy he is,
became the sovereign authority of the province whenever the
Act of 1867 came into operation. But the argument ignores the
fact that by sej3tionj>$ the appointment of a provincial Governor
is made by the ‘ Governor-General in Council, by instrument
under the Great Seal of Canada,’ or, in other words, f by thel
executive government of the Dominion which is by section jA
expressly declared ‘to continue and be vested- in the Queen. ‘1
There is no constitutional anomaly in an executive officer of the
Crown – receiving his appointment at the hands of a governing j
body irko have no power and no functions c.i’a’pt as representatives <>J\
tlic (‘num. The Act of the Governor-General and his council
in making the appointment was, within the statute, the Act of
the Crown ; and a Lieutenant-Governor, when appointed, was
as much -the representative of Her Majesty for all purposes of
provincial government, as the Governor- General himself was for
all purposes of Dominion government ….
and the decisions in Mercer v. Attorney-General of Ontario
(8 App. Cas. 767), St. Catherines Milling Co. v. The Queen
(14 App. Cas. 46), and Attorney-General of British jColum-
bia v. Attorney-General for Canada (14 App. Cas. 295), are
referred to by the Committee as ” based upon the general V
recognition of Her Majesty’s continued sovereignty under
the Act of 1867.”

308 THE B. N. A. ACT SEC. 59.

The view expressed in the italicized portion of the above
extract affirms what we had ventured to lay down (<nitr, p. 304), that a Lieutenant-Governor, once appointed, is sub-L ject to ” instructions ” from the Governor-General only uponf those matters connected with the exercise, by the executive/ of the Dominion, of supervision over provincial legislation! See section 90, post. Jffic u e r o e f of 59 A Lieutenant – Governor shall Governor. ‘ hold office during the pleasure of the Governor-General ; but any Lieutenant- Governor appointed after the commence- ment of the first Session of the Parlia- ment of Canada shall not be removable (i) within five years from his appointment, except for cause assigned, which shall be communicated to him in writing within one month after the order for his removal is made, and shall be communicated by message to the Senate and to the House of Commons within one week thereafter if the Parliament is then sitting, and if not then within one week after the com- mencement of the next Session of the Parliament. (i) ” Shall not be removable …. exec pi for cause.” The position of the Governor-General in reference to the removal of a Lieutenant-Governor has been already referred to see notes to section 9, ante, p. 251. The only instance of such removal which has so far occurred under the B. N. A. Act, is that of Lieutenant-Governor Letellier, and it was in connection with his removal that the Im- perial authorities laid down the ” conventional ” rule that the Governor-General should act, under this section 59, />//
and with the advice of the Queen* 7V// 1 // (‘onncil />>/

THE B. N. A. ACT SEC. 59. 309

Canada. But, as has been already pointed out, the power
of removal (subject to the observance of the formalities
prescribed by the section) is, legally, with the Governor-
General alone. The cause assigned in the Order for the
removal of Lieutenant-Governor Letellier was that, after
the vote of the two Houses of the Dominion parliament
censuring him for the dismissal of his ministers, his useful-
ness as a Lieutenant-Governor was gone. Had Lieutenant-
Governor Letellier declined to recognize the validity of the
Order in Council, a very nice question would have been
raised as to the meaning of the phrase “for cause assigned,”
for it is very doubtful if the facts alleged constituted
” cause ” within the meaning of this section. Is the Do-
minion government for, under the terms of the despatch
to the Governor-General in this case, it is left with that
government the sole judge of what constitutes “cause”?
If so, a Lieutenant-Governor holds his office subject possibly
to partisan caprice, not to law. Is the vote of the Houses
of the Dominion parliament an element of ” cause “? If so,
a Lieutenant-Governor is subject to the vote of a parlia-
ment which cannot enact a single law to govern his conduct
in the administration of the affairs of the province over
which he presides. On the other hand, it may be argued
that as the Lieutenant-Governor is a link in the chain of
federal government (now practically operative throughout
the Empire), appointed by the executive of the Dominion,
who are responsible to the electorate of Canada through the
Dominion parliament, the decision of that parliament, ex-
pressive of the will of the people of Canada as a whole,
should govern in regard to all matters entrusted to the
executive of the Dominion. The difficulty is that the ex-
ecutive power, in this regard, of the Dominion government
is entirely divorced from, all legislative power. That
government ” has no powers and no functions except as re-
presentatives of the Crown ” in this matter of the removal
of a Lieutenant-Governor (see ante, p. 307. It strikes one

810

THE B. N. A. ACT SECS. 60-63.

governor.

that it may perhaps be advisable for the Imperial authori-
ties to reconsider the ” instructions ” above referred to.

60- The salaries of the Lieutenant-
Governors shall be fixed and provided by
the Parliament of Canada.

61- Every Lieutenant – Governor,
g^^ before assimiing the duties of his
office, make and subscribe before the
Governor-General or some person author-
ized by him, oaths of allegiance and office
similar to those taken by the Governor-
General.

62- The provisions of this Act refer-
LlSJteSInt- ring to the Lieutenant- Governor extend
and apply to the Lieu tenant- Governor for
the time being of each Province or other
the chief executive officer or administrator
for the time being carrying on the govern-
ment (i) of the Province, by whatever
title he is designated.

S(i) “Carrying on the government of the province”-
ee notes to section IQ^ante, p. 254, and to section ^58, (i-nlr,
p. 303. The word ” government,” in its widest sense, com-
prises the exercise of both the law-making and the law-
executing power, but here it has more particular reference
to the exercise of the executive powers of government, the
legislative powers of a Lieutenant-Governor being exercis-
able only in connection with the legislative assembly. See
section 69, i>of. *

of^xecS 1 63- The Executive Council (i) of On-

cSSVand tario and of Quebec shall be composed of

such persons as the Lieutenant-Governor

THE B. N. A. ACT SEC. 63. 311

from time to time thinks fit, and in the
first instance of the following officers,
namely: the Attorney-General (ii), the
Secretary and Registrar of the Province,
the Treasurer of the Province, the Com-
missioner of Crown Lands, and the Com-
missioner of Agriculture and Public
Works, with, in Quebec, the Speaker of
the Legislative Council and the Solicitor-
General.

(i) ” Executive Council!’ Compare section 11, and see \
notes thereto, ante, p. 255. Since 1867, the Executive’
Council of Ontario has been increased by the addition of a
Minister of Education and a Minister of Agriculture. See
section 92, sub-section 1, and notes thereto.

(ii) ” The Attorney-General.” The position of a pro-
vincial Attorney-General will be found discussed in Attor-
ney-General v. Niagara Falls International Bridge Co., 20
Grant, 34; Attorney-General v. International Bridge Co.,
28 Grant, 65, 6 O. A. R. 537; and in Mousseau v. Bate, 27
L. C. Jurist, 153. In the first case, it was held by Mr.
Justice Strong, that the Attorney-General of a province is
the officer of the Crown who is considered as present in
the courts of the province to assert the rights of the
Crown, and of those who are under its protection, and that
the provincial Attorney-General, and not the Attorney-
General for the Dominion, is the proper party to file an
information when the complaint is, not of an injury to
property vested in the Crown as representing the govern-
ment of the Dominion, but of a violation of the rights of
the public of a province. The information, in that case,
was in respect of a nuisance caused by the defendant
company’s interference with a railway incorporated prior to
1867. In the second case it was held by the Court of
Appeal, reversing the judgment of Spragge, C., that the

312 THE B. X. A. ACT SEC. 63.

non-compliance by a company, incorporated by an Act >>f
the Dominion parliament, with the terms of such Act, such
non-compliance operating, ,-is was alleged, to the detri-
ment of the locality in which the work was being carried
on, could not be the subject matter of an information at
the instance of the provincial Attorney-General. In Mous-
seau v. Bate, decided in Quebec (18-83), it was held that
proceedings in the nature of a sci. fa. to set aside letters
patent of invention, issued under the Dominion Patent Act,
cannot be instituted in the name of the Provincial Attorney –
General, but can only be legally taken by the Attorney-
General for the Dominion. See further, upon this last
subject, the notes to sub-section 22 of section 91, ]><>*!.
It has been practically conceded by the Dominion govern-
ment that a provincial Attorney-General properly repre-
sents the Crown in criminal prosecutions before provincial
courts, but so far as we are aware there has been no
judicial determination of the point. It seems difficult to
appreciate the distinction between proceedings in respect
of a breach of criminal law, and proceedings founded
upon a breach of ” patent ” law. Dominion statutes, how-
ever, expressly recognize the intervention of a provincial
Attorney-General in the former class of cases. See Abraham
v. The Queen, 6 S. C. R. 10.

As to the liability of members of the Executive Coun-
cil for acts done by them in the performance of their duties
as such, see Molson v. Chapleau (3 Cart. 360), where their
non-liability is distinctly affirmed. This latter subject is,
however, while no doubt a question of constitutional law,
so fully treated of by other writers, that it is not
deemed advisable to enter upon it here. See Broom’s
Constitutional Law, p. 521, et seq.; Forsyth’s Opinions on
Constitutional Law, p. 85; and see also the Muskoka Mill
Co. v. The Queen, 28 Grant, 563; O’Brien v. The QU.TH.
4 S. C. R, 529; re The Massey Manufacturing Co., 13
O. A. R. 446 ; and re Bell Telephone Co., 9 O. R. 339.

THE B. N. A. ACT SECS. 64-65. 313

64- The Constitution of the Execu- I vernm e ent
tive Authority in each of the Provinces of and xew co

Brunswick (i).

Nova Scotia and New Brunswick shall,
subject to the provisions of this Act (ii),
continue as it exists at the Union until
altered linger +^ p gnf.hrm’fy n-f +>n’g Act

(i) The early constitutions of the Maritime Provinces
will be found treated of in chapter II., ante. In chapter
III. we have pointed out the importance of this section,
taken in connection with section 88, as showing that in the
Maritime Provinces at least, the old provincial constitutions
are continued; the sphere of their authority being, of
course, under the B. N. A. Act, limited to a smaller range
of matters. See also notes to section 58, ante.

(ii) ” Subject to the provisions of this Act!’ That is to
say, subject to the change in the mode of appointment of
the executive head of the province, and subject also to
those provisions of the B. N. A. Act, which limit the pro-
vincial sphere of authority. These are the only provisions
of the Act which in any way limit the full operation of
this section, unless perhaps the group of clauses which deal
with the division of assets see section 102, et seq, post,
may be said to be provision relating to the provincial
constitutions. See particularly the notes to the word
” royalties ” in section 109.

(iii) ” Until altered under the authority of t/tix Act.”– .
That is to say, until altered by the provincial legislative I
assemblies, under section 92, sub-section 1 . See notes J
thereto.

65. All powers, authorities, and functions which under any Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great

[Page 314]

Britain and Ireland, or of the Legislature of Upper Canada, Lower Canada, or Canada, were or are before or at the Union vested in or exerciseable by the respective Governors or Lieutenant-Governors of those Provinces, with the advice, or with the advice and consent, of the respective Executive Councils thereof, or in conjunction with those Councils, or with any number of members thereof, or by those Governors or Lieutenant-Governors individually, shall, as far as the same are capable of being exercised after the Union in relation to the Government of Ontario and Quebec respectively, be vested in and shall or may be exercised by the Lieutenant-Governor of Ontario and Quebec respectively, with the advice or with the advice and consent of or in conjunction with the respective Executive Councils, or any members thereof, or by the Lieutenant-Governor individually, as the case requires, subject nevertheless (except with respect to such as exist under Acts of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland), to be abolished or altered by the respective Legislatures of Ontario and Quebec (ii).

(i) See notes to section 12. ante. p. 250; and see also chapter III., p. 48, et seq. The powers here referred to are statutory powers. No such provision is made in reference to Nova Scotia and New Brunswick, nor in the Orders in

[Page 315]

Council admitting Prince Edward Island and British Columbia to the Dominion. Owing to the division of (Old) Canada into Ontario and Quebec, it was necessary to provide for the exercise of the powers, etc., which had theretofore been exercised by the Governor or Lieutenant-Governor of the old provinces; and by section 12, all such powers are vested in the Governor-General, so far as the same are capable of being exercised in relation to the government of Canada, while, by this section, the very same powers, in their entirety, are vested in the Lieutenant-Governors of Ontario and Quebec respectively. The two sections, taken together, effect no division of power, but provide simply for the exercise of the same powers in the different spheres of authority created by the B. N. A. Act. In Gibson v. McDonald (d), Mr. Justice O’Connor, referred to a slight difference in the wording of this section, as compared with section 12,–the words ” as far as the same continue in existence,” which appear in the 12th section, being omitted from this 65th section—indicating, in his opinion, that some powers continued to exist in relation to the Dominion, and were vested therein, which did not continue to exist in relation to the provinces. It is difficult to imagine what idea in the mind of the draftsman led to this difference in phraseology. The governments of the Dominion and of the provinces of Ontario and Quebec were all, in a sense, new creations. The exercise of these powers, etc., in relation to the government of the Dominion cannot be said to be a continuation of them, while, in a sense it may be so spoken of in relation to the governments set up by the B. N. A. Act, in Ontario and Quebec. It is impossible to assign any difference in meaning to the two sections, owing to this difference in phraseology. Their effect is sufficiently clear, that all these powers, etc., are to be vested in the executive head of the Dominion and of each provincial government, so far as they are capable of

[Page 316]

being exercised in relation to those governments respectively.

The fact that the B.N.A. Act does effect a clear division of the “sphere of authority,” seems not to have been appreciated in Regina v. Amer (dd), where Mr. Justice Wilson treats these two sections as vesting the same power in the Governor-General and a Lieutenant-Governor in reference to the same subject matter. In view of the subsequent discussions which have taken place in reference to the scheme of the B.N.A. Act, the words which we have italicized, would seem to be an incorrect construction of these two sections.

In Attorney-General for Quebec v. Reed (8 S.C.R. 408, affirmed on appeal, 10 App. Cas. 141), it was contended that the Quebec Act, 43 & 44 Vic. c. 9, which imposed a duty, to be paid in stamps, upon every “exhibit” filed in court in any action depending therein, might be supported under C.S.L.C., c. 109, section 32, which gave to the government of (Old) Canada, power to impose by Order in Council such a duty on exhibits. This contention is thus disposed of in the judgment of the Judicial Committee of the Privy Council:

“With regard to the third argument, which was founded upon the 65^th section of the Act, it was one not easy to follow, but their Lordships are clearly of opinion that it cannot prevail. The 65^th section preserves the pre-existing powers of the Governors or Lieutenant-Governors in Council to do certain things not there specified. That however was subject to a power of abolition or alteration by the respective legislature of Ontario and Quebec, with the exception of course of what depended on Imperial legislation. Whatever powers of that kind existed, the Act with which their Lordships have to deal neither abolishes nor alters them. It does not refer to them in any manner whatever. It is said that among those powers, there was a power, not taken away, to lay taxes of this very kind upon legal proceedings in the courts, not for the general revenue purpose of the

[Page 317]

province, but for the purpose of forming a special fund called “The Building and Jury Fund,” which was appropriated for purposes connected with the administration of justice. What has been done here is quite a different thing. It is not in aid of the Building and Jury Fund. It is a legislative Act, without any reference whatever to those powers; if they still exist, quits collateral to them ; and, if they still exist, it is capable of being exercised concurrently with them.”

See further as to this case, section 92, sub-section 2. The power of the Lieutenant-Governor to impose, by Order in Council, such tax as was in question in Attorney-General v. Reed, has been entirely abrogated by the limitation of provincial powers of taxation to direct taxation; a limitation which, it is submitted, applies to all the revenue producing powers of provincial governments. This point is referred to, but not decided in Attorney-General v. Reed; see 10 App. Cas. at p. 145. A reference to the judgment of Gwynne, J., in the Supreme Court—see 8 S. C. R., at p. 432—will show that, in his view, this limitation does so apply. See, also, the decisions of the Manitoba Courts referred to in the notes to sub-section 2 of section 92, post.

In Lenoir v. Ritchie (3 S. C. R. 575) the question of the 1 power of the Nova Scotia Provincial Assembly to authorize the Lieutenant-Governor to appoint Queen’s Counsel, and to assign precedence, as between those Queen’s Counsel and those appointed by the Dominion Government, was under consideration. Before Confederation, the question was not regulated by any statutory enactment, but the Governors and Lieutenant-Governors of the various provinces had been in the habit of exercising the prerogative of the Crown in this regard. After Confederation, the government of the Dominion claimed that the Governor-General, as representative of Her Majesty in Canada, was alone entitled to exercise this prerogative. It was treated as falling within the class of prerogatives vested in the Crown as the fountain of honour treated so to speak as a prerogative-at-large, not connected with any particular

[Page 318]

department of executive government. If this be its proper position, it is hard to see how any colonial officer can exercise such prerogative. All the other prerogatives which fall within this category are treated as prerogatives pertaining to matters of Imperial concern, such as, for instance, the appointment of knights, baronets, etc., etc. If, on the other hand, the prerogative is one connected with the administration of justice, it would appear that it is one proper to be exercised both by the Governor-General and the Lieutenant-Governors of the various provinces—by the former in relation to courts of Dominion creation, by the latter in connection with provincial courts. It is laid down in all the books that members of the Bar are ” officers ” of the courts, and the assignment of precedence to certain of those members, would seem to be a matter relating either to the organization of the courts or to procedure therein. In Lenoir v. Ritchie, it was not necessary to the determination of that case to decide whether or not a Lieutenant^- Governor is entitled to exercise this prerogative the question there involved being as to the precedence given to provincial over Dominion Queen’s Counsel. At the same time, some of the judges, both in the Nova Scotia courts mid in the Supreme Court of Canada, expressed very decided views against the right of the Lieutenant-Governor to exercise the prerogative in any case. The question is now standing for argument before the Court of Appeal for Ontario. Subject to the assignment of this prerogative to its proper place in connection with executive government—to defining the subject matter within which it properly falls—the general principle which must govern in regard to all these questions of “prerogative” would now seem to be authoritatively stated in the judgment of the Privy Council in Liquidators of Maritime Bank v. Receiver-General of New Brunswick. See notes to section 58, ante.

(ii) “Subject to be abolished or altered by the respective legislatures of Ontario and Quebec.”—See notes to section 12, ante, p. 257; also to section 129, post. The decision

[Page 319]

in Dobie v. Temporalities Board, 7 App. Gas. 136, is directly applicable to the interpretation of these two sections, 12 and 65. All the various subject matters in respect to which, before Confederation, these “powers, authorities, and functions ” could be exercised, are, by the effect of these sections, divided, and, in relation to each division, all these powers, etc., are vested in the executive head of the Dominion and of each province respectively. But in respect to each division, the Dominion parliament or the provincial legislative assembly may abolish or alter these powers in such fashion, and to such extent, as may be thought necessary to the proper government of the Dominion or the province, as the case may be. The holding in Dobie v. Temporalities Board is thus expressed in the head-note :

“The powers conferred by the B. N. A. Act, 1867, section 129, upon the provincial legislatures of Ontario and Quebec to repeal and alter the statutes of the old parliament of Canada, are precisely co-extensive with the powers of direct legislation, with which those bodies are invested by the other clauses of the Act of 1867.”

See further as to this section, Attorney-General (Canada) v. Attorney-General (Ontario), 20 O. R. 222: affirmed in appeal, 19 O. A. R. 31

66- The provisions of this Act refer- ^
ring to the Lieutenant-Governor in (Joun- L1e e ut r enfnt-

i i 11 i T c i i Governor in

cil shall be construed as reterrmg to the council.
Lieutenant-Governor of the Province act-
ing by and with the advice of the Execu-
tive Council thereof (i).

(i) Compare section 13, ante, p. 258. A reference to
section 65, suggests, that there may possibly he powers
vested in the Lieutenant-Governor of a province which he
may exercise individually ; that is to say, that his exercise
of such powers, even contrary to the advice of the Execu-

320 THE B. X. A. ACT SEC. 66.

tive Council, would be legally valid. So far as the B. N. A.
Act itself is concerned, the only powers which a Lieutenant-
Governor may exercise otherwise than by Order in Council,
are : those conferred by section (>3, in reference to the ap-
pointment of members of the Executive Councils of Ontario
and Quebec ; by section 72^ in reference to the appointment
of Legislative Councillors in Quebec ; by sections 82 and 85,
in reference to the summoning and dissolving of the pro-
vincial Legislative Assembly ; and by section 90, the giving
or withholding of the assent of the Crown to bills passed
by the Legislative Assembly. But, with regard to all of
these, with the exc3ption of the last named, the ” conven-
tions of the constitution ” which, as we have shown, are as
fully operative within Canada, in relation to the various
governments here existing, as in relation to the parliament
Jjof the United Kingdom, require that all such acts must be
Tjdone upon the advice of ministers having the confidence of
the legislature of the province. As to the appointment
of members of the Executive Council, the Lieutenant-
Governor must ex necessitate, so far as the legal position is
concerned, appoint, without advice, the new members upon
the defeat and resignation of an entire administration, but
even in such cases, the in-coming ministry or Executive
Council must accept entire responsibility for the acts of the
Lieutenant-Governor in connection with the formation of
the new Executive Council. With regard to the giving or
withholding of the assent of the Crown to bills passed by the
Legislative Assembly of a province, a Lieutenant-Governor
acts as a member of the Dominion executive staff, or, at all
events, is supposed to be subject to ” instructions ” from the
Governor-General, although, in practice, the supervision of
‘ provincial legislation entrusted to the Dominion executive
; is exercised after the event, by ” disallowance,” rather than
bi’fore the event, by “instructions” io withhold the
Crown’s assent. See notes to section 58, ante, for some
further observations as to the position of a Lieutenant-
Governor in relation to the federal executive.

THE B. N. A. ACT SEC. 67. 32.1

67. The Governor-General in Council may from time to time appoint an administrator to execute the office and functions of Lieutenant-Governor during his absence, illness, or other inability (i)

(i) With this section compare section 14, ante, which (coupled with the Letters Patent) empowers the Governor-General to appoint a Deputy Governor-General. This section, it will be noticed, conveys no such power to a Lieutenant-Governor, and as to him, therefore, the maxim delegatus non potest delegari applies. We do not overlook the rule of law that a colonial legislature has as full power to alter and mould the lex prerogativa in the colony as has the Imperial parliament in Great Britain ; but, on the other hand,(the provisions of section 92, sub-section 1, must not be overlooked. See notes to that sub-section, which expressly prohibits a provincial legislature from amending the provincial constitution “as regards the office of Lieutenant-Governor.”

Reference has already been made to Attorney-General (Can.) v. Attorney-General (Ont.) (e), in which there arose for discussion the question of the power of a provincial assembly to vest in the Lieutenant-Governor powers in connection with the Executive government of the province other than those expressly vested in him by section 65 of the B. N. A. Act. See ante, p. 305. The language of the various judges who delivered opinions in that case supports the view that there is the power in a provincial assembly to use the phrase of Boyd, C. to impose upon a Lieutenant-Governor any executive functions “germane to the office.” In view of the recent decision of the Privy Council already noted, the legislation impugned in this case would appear to have been, as Mr. Justice Burton considered it, unnecessary. A somewhat different question is suggested by this

[Page 322]

section 67, taken in connection with sub-section 1 of section 92, conferring upon provincial legislatures power to amend the provincial constitution “except as regards the office of Lieutenant-Governor.”

During the last illness of the late Lieutenant-Governor Campbell, an Order in Council was passed appointing a Deputy Lieutenant-Governor, and this action on the part of the provincial government gave rise to considerable discussion. It is understood that the Attorney-General of Ontario prepared a ” state paper” in support of this action of his government, but this we have not seen. A Lieutenant-Governor—standing as he does in the same relation to the government of a province as the Governor-General does in relation to the government of the Dominion—has vested in him the appointment of all subordinate executive officers throughout the province, but we do not see how this could extend to authorize the appointment of a deputy. Under the B. N. A. Act this would seem to be clear, that the executive head—the person carrying on the government—of a province is to be one link in the chain of federal connection between the provinces and the Imperial government, and his tenure of office is (section 59) during the pleasure of the Governor-General, subject to certain restrictions upon the exercise of the power of removal, already adverted to This would seem to be one of those essentials in connection with the office of a Lieutenant-Governor which a provincial legislature cannot alter, under section 92, sub-section 1. By section 62 (ante, p. 310) the provisions of the B.N.A. Act relating to a Lieutenant-Governor apply also to “other the chief executive officer or administrator for the time being carrying on the government of the province, by whatever title he is designated,” and the express provision of this section 67 was hardly needed to negative the power of a Lietuantn-Governor to appoint a deputy to “carry on the government” of the province during the absence, etc., of the Lieutenant-Governor.

[Page 323]

We have not seen the commission to the Deputy Lieutenant-Governor, and it may possibly be that it is nothing more than the appointment of a subordinate officer to perform certain of the executive functions of the Lieutenant-Governor (such, for instance, as to perform the ceremony of opening the session, and others which might be named), and is not in truth the appointment of a deputy in the proper sense of that term. There are, however, some of the duties of a Lieutenant-Governor which the B. N. A. Act expressly provides are to be performed by him, and any general delegation of the duties of his office to a deputy, would seem contrary to both the spirit and the terms of the B. N. A. Act.

68. Unless and until the Executive
Government (i) of any Province otherwise
directs with respect to that Province, the
seats of Government (ii) of the Provinces
shall be as follows, namely, of Ontario,
the City of Toronto ; of Quebec, the City
of Quebec ; of Nova Scotia, the City of
Halifax ; and of New Brunswick, the City
of Fredericton.

(i) ” The executive government” This is a somewhat
peculiar provision. The idea probably was to provide for
a change of the seat of government upon a sudden emer-
gency which might not allow of the calling together of the
legislature. There is no doubt, however, that this is one
of those clauses relating to the provincial constitution
which may be altered by the legislature of a province,
under section 92, sub-section 1. A provincial assembly,
therefore, may, if so minded, take from the executive this
power.

The seats of government of the provinces and territories
acquired since Confederation are as follows :

o24 THE B. N. A. ACT SEC. 69.

Of Manitoba, Winnipeg ; of the North West Territories,
Regina ; of Prince Edward Island, Charlottetown ; and of
British Columbia, Victoria.

(ii) “The seats of government” See notes to section
10, ante, p. 260.

Legislative Power (i).
1. ONTARIO.

Jo^ttario 6 69- There shall be a Legislature for
Ontario consisting of the Lieutenant-
Governor (i) and of one House (ii), st} 7 led
the Legislative Assembly of Ontario.

(i) ” Legislative power.” The nature of the legislative
power which resides in provincial legislative assemblies
has been fully discussed in previous pages, and we need
here only summarise the position shortly. The limitations
upon that power are : First, in respect of the subject mat-
ters ; Second, the territorial limitation ; Third, those general
and implied limitations (such as the necessary saving of
Imperial sovereignty) before referred to. But, as expressed
by Lord Selborne in Hodge v. Queen (/), ” within the*<‘ 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.” See chapter IX., ante, p. 182. To the cases there collected there should now be added a reference to Liquidators of Maritime Bank v. Re- ceiver-General of New Brunswick (n), in which the above passage is quoted with approval, and the Committee lay it down that ” in so far as regards those matters which 1 v section 92 were specially reserved for provincial legislation, the legislature of each province continactl to be free from the control of the Dominion, and as supreme as it was before the passing of the Act.” See also notes to section 58, ante. (/) 9 App. Gas. 116. (g) Times L. R. Vol. VIII., p. 677. THE B. N. A. ACT SEC. 69. 325 (ii) ” TkeLieiitenant-Governor” Compare the language of section 17. Owing to the difference in the phraseology employed, it has been contended that the Queen does not form a constituent part of the provincial legislatures, but in the present state of the authorities, this view can hardly be said to be tenable. It is laid down by Chitty, that the Crown has a part in legislation throughout the Empire, and we have already (h) quoted the passage from that writer in which it is laid down, that all executive officers act under commission from, and in due subordination to, the executive head of the Empire. The Lieutenaiit-Governor acts under Her Majesty’s commission in carrying on the government of the province over which he presides, and is as fully Her Majesty’s representative as is the Governor-General in re- ference to the Dominion at large. The assent, therefore,^ given by the Lieutenant-Govemor to Acts of the legislative assembly, is the assent of the Crown. This is distinctly recognized in Theberge v. Landry, where an Act of the Quebec legislature is described by Lord Chancellor Cairns as” an Act which is assented to on the part of the Crown/ and to which the Crown therefore is a party.” For a further reference to this case see notes to section 41, ante, p. 288. Whether, therefore, Acts of a legislative assembly are promulgated as the Acts of the Lieutenant-Governor, by and with the advice .and consent, etc., or as the Acts of the Queen, by and with such consent, would seem matter of indifference. Again we are able to quote, from the latest deliverance of the Judicial Committee of the Privy Council, language authoritatively enunciating the views above ex- pressed : “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 ” (i). (h) Ante p. 252. (?) Liquidators, etc. v. Rec.-Gen. of New Brunswick, Times L. R .Vol. \ 7 III., p. 677. This passage immediately precedes that quoted ante, p. 307. 326 THE B. N. A. ACT SEC. 69. (iii) ” One house.” This form of a legislature was the deliberate choice of the Upper Canada representatives in the old parliament of Canada. Lower Canada (now Quebec) \ chose the bi-cameral form: see section 71, 2>ost. Nova
Scotia and New Brunswick prior to Confederation had that
form, and the constitution of the legislatures in those pro-
vinces was continued by the B. N. A. Act see notes to
section 88, post. Prince Edward Island was in like position
upon its admission in 1873 ! Upon the formation of the
* province of Manitoba, a second chamber was established,

“7~7 but was afterwards abolished by an Act of the Manitoba
legislature, 39 Vic. c. 29, under the powers conferred by
section 92, sub-section 1. At the time of its admission to
the Union, British Columbia had a legislature somewhat
similar to that of Ontario, consisting of one house only.

It may here be noticed that no section of the B. N. A-
Act makes any express provision (such as is made in refer-
I ence to the Dominion parliament, see notes to section 18,
( : nte., p. 261) as to the ” privileges, immunities, and powers ”
of the provincial legislative assemblies and the members
thereof, respectively. In common with all legislative bodies
they have certain incidental and inherent powers, ” such
;is are necessary to the existence of such a body, and the
proper exercise of the functions which it is intended to
execute ” ( j). “Whatever in a reasonable sense is necessary
for those purposes, is impliedly granted whenever any such
Legislative body is established by competent authority ;
for these purposes, protective and self-defensive powers
only and not punitive are necessary ” (k). This question
however arises, can they, as law-making bodies, give
themselves, and their members, other and greater powers,
etc., than these ? It is submitted that according to the
weight of authority they can do so. Indeed, some sanction
is given by Kielley v. Carson (a case from Newfoundland),

(j) Kielley v. Carson, 4 Moo., P. C. 88.

(k) Barton v. Taylor, 11 App. Cas. at p. 203.

THE B. N. A. ACT SEC. 69. 827

to the contention that usage in a colony, judicially sanctioned
there, might raise a presumption that the power (e.g., of
committal for contempt of the colonial assembly) had been,
as Forsyth puts it, duly communicated by law, or, as we
would prefer to put it/ had been recognized as part of the\
law introduced into the colony upon its settlement. But’
however that may be (1), the authorities do lay it down
although no doubt obiter dicta that the power to make
laws for a colony carries with it the power to make laws as to
the privileges and immunities of the law-making body and
its members (m). We have already quoted the fifth section
of the Colonial Laws Validity Act, 1865, see notes to
section 35, ante, p. 280, and have discussed its bearing
upon Dominion legislation. It is not, however, necesary
to rely upon this Act, so far as concerns the position of the
provincial legislative assemblies ; in fact, this section of the I
Colonial Laws Validity Act, was passed “to remove doubt,” and!
as we have said, the weight of judicial authority was in favour
of the view, that colonial legislatures have power to define/
their own privileges and immunities. The same rule would
apply to a provincial legislature. It cannot, it is true,
enlarge its sphere of legislative activity, but it can make
laws as to how and under what safe-guards it shall do its
work within the sphere assigned. Such a law would be
” in relation to the classes of matters ” coming within section
92 of the B. N. A. Act, treating those classes as a whole.
Moreover, sub-section 1 of section 92, giving provincial
assemblies power to amend the provincial constitutions,
would seem to be sufficiently wide to embrace legislation

(I) Only on such ground is Reg. v. Gamble, 9 U. C. Q. B. 546, support-
able. This view is very strongly combatted by Mr. Justice Ramsay, in
Ex parte Dansereau, 2 Cart. 165, 19 L. C. Jur. 210. His judgment was
overruled by the majority of the Court, but upon the ground that an
Act of the Quebec Legislative Assembly which purported to confer powers,
etc., other than those annexed by the common law to a legislature,
such as that of Quebec, was (contrary to his view) intra vires, sup-
porting the view expressed in the text.

(m) See Barton v. Taylor, ubi supra, and cases there noted.

328 THE K. N. A. ACT SEC. 70.

as to the privileges, etc., of the provincial assemblies and
the members thereof. Such legislation could in no sense
be said to effect an enlargement of their sphere of legisla-
tive activity. We do not overlook what was laid down in
Bank of Toronto v. Lambe (n), that provincial legislatures
have no inherent or reserved rights of legislation dating
from a time anterior to the B. N. A. Act, that by that
Act the whole range of colonial legislative power is
exhausted ; our argument is based on the language of the
B. N. A. Act itself, and on what, we submit, is a reasonable
construction of that language.

The following provincial acts, defining the privileges,
etc., of the legislative assemblies in the respective provinces,
and of their members, are therefore, it is submitted, infra
vires :

Ontario. R. S. O. (1887), c. 11, s. 37, et seq.
Quebec. R. S. Q. (1888), Art. 124, et seq.
Nova Scotia. R. S. N. S. (1884), c. 3, s. 20, et seq.
New Brunswick. 33 Vic. c. 33.
P. E. Island. 26 Vic. c. 15 (1863).
Manitoba. R. S. M. (1880), c. 5, s. 36, et seq.
British Columbia. R. S. B. C. (1888), c. 22, s. 76, ct */-</.
The position of the N. W. Territories will be found
treated in Part IV., post.

dSSii). 70- The Legislative Assembly of
Ontario shall be composed of eighty- two
members, to be elected to represent the
eighty-two Electoral Districts set forth in
the first Schedule to this Act.

(i) The representation in the different provincial legisla-
tures has from time to time since 1867 been altered, under
the power granted to the provincial legislatures by section
92, sub-section 1. Owing to the frequent revision of the
statutes in the various provinces, it is not thought desirable

(n) 12 App. Gas. 575.

THE B. N. A. ACT SECS. 71, 72. 329

to encumber this work with a list of the various electoral
districts for provincial purposes. So far as Ontario is con-
cerned, they will be found set out in R. S. O. c. 7, and sub-
sequent amendments. The number of members is now 91.

2. QUEBEC.

71- There shall be a Legislature for J^i*^
Quebec consisting of the Lieutenant-
Governor and of two Houses (i), styled
the Legislative Council of Quebec and the
Legislative Assembly of Quebec.

(i) ” Two houses!’ See notes to section 69, where will
be found a statement of the position of the various pro-
vinces, in regard to this matter. See also the notes to sec-
tion 21, ante, p. 268.

72. The Legislative Council of Que- SfTegSaSe
bee shall be composed of twenty-four CouncU –
members, to be appointed by the Lieu-
tenant-Governor in the Queen’s name (i),
by instrument under the Great Seal of
Quebec, one being appointed to represent
each of the twenty-four Electoral Divi-
sions (ii) of Lower Canada in this Act
referred to, and each holding office for
the term of his life, unless the Legisla-
ture of Quebec otherwise provides under
the provisions of this Act (iii).

(i) ” In the Queen’s name.” See note (ii) to section 69,
ante, p. 325.

(ii) ” Each of the tiventy-four electoral division*” See
notes to section .22, sub-section 3, ante, p. 272.

(iii) ” Unless the legislature of Quebec otherwise pro-
vides.” Up to the present time j no change has been made

330 THE B. N. A. ACT SECS. 73-77.

in the constitution of the legislative council of that pro-
vince.

o”Le|Sative 73- The qualifications of the Legisla-
tive Councillors of Quebec shall be the
same as those of the Senators for Quebec

(i).

(i) See section 23, ante, p. 273.

pSqSinflS: 74- The place of a Legislative Coun-
cillor of Quebec shall become vacant in
the cases mutatis mutandis, in which the
place of Senator becomes vacant (i).
(i) See sections 30 and 31, ante, p. 277.

75. When a vacancy happens in the
Legislative Council of Quebec, by resig-
nation, death, or otherwise, the Lieut en-
ant-Governor, in the Queen’s name (ii)
by instrument under the Great Seal of
Quebec, shall appoint a fit and qualified
person to fill the vacancy.

(i) See notes to section 32, (ivte, p. 278.

(ii) u Lii the Queen’s name” See section 72, above, and
si’c also notes to section ()9, <ri)te, p. 325.

76- If any question arises respecting
the qualification of a Legislative Council-
lor of Quebec, or a vacancy in the Legis-
lative Council of Quebec, the same shall
be heard and determined by the Legisla-
tive Council (i).

(i) See notes to section 33, an te, p. 27

77- The Lieutenant-Governor may
from time to time, by instrument under

THE B. N. A. ACT SECS. 78-80. 331

the Great Seal of Quebec, appoint a
member of the Legislative Council of
Quebec to be Speaker thereof, and may
remove him and appoint another in his
stead (i).

(i) See section 34, ante, p. 279.

78- Until the Legislature of Quebec gSgSSive
otherwise provides, the presence of at

least ten members of the Legislative
Council, including the Speaker, shall be
necessary to constitute a meeting for the
exercise of its powers (i).

(i) See notes to section 35, ante, p. 280.

79- Questions arising in the Legisla- Legi

tive Council of Quebec shall be decided c<
by a majority of voices, and the Speaker
shall in all cases have a vote, and when
the voices are equal the decision shall be
.deemed to be in the negative (i).

(i) See notes to section 36, ante, p. 281. It will be noted
that in the Senate of Canada, and the Legislative Council
of Quebec, the Speaker is entitled to vote as an ordinary
member, and has no casting vote ; while in the House of
Commons, and the Legislative Assemblies of the various
provinces the Speaker has only a casting- vote in case of a
tie. See sections 49 and 90.

80- The Legislative Assembly of
Quebec shall be composed of sixty-five Que1?ec. Iy
members, to be elected to represent the
sixty-five electoral divisions or districts
of Lower Canada in this Act referred to,
subject to alteration (i) thereof by the

332 THE B. N. A. ACT SEC. 81.

Legislature of Quebec : Provided that it
shall not be lawful (ii) to present to the
Lieutenant-Governor of Quebec for assent
any bill for altering the limits of any of
the Electoral Divisions or Districts men-
tioned in the second Schedule to this Act,
unless the second and third readings of
such bill have been passed in the Legis-
lative Assembly with the concurrence of
the majority of the members representing
all those Electoral Divisions or Districts,
and the assent shall not be given to such
bill unless an address has been presented
by the Legislative Assembly to the Lieu-
tenant-Governor stating that it has been
so passed.

(i) “Subject to alteration:’ See 53 Vic., c. 3 (Quebec^,
by which the membership of the legislative assembly of
that province is fixed at 72.

(ii) “It shall not be lawful, etc.” See notes to section
22. cute, where the considerations which led to this par-
ticular arrangement in the case of Quebec are adverted to.
The electoral districts set out in the second schedule, are,
or were at the date of Confederation, inhabited largely by
protestant English, and are familiarly known as the ” east-
ern townships.”

3. ONTAEIO AND QUEBEC.

of ir L s egSS? on 81. The Legislatures of Ontario and
Quebec, respectively shall be called to-
gether not later than six months after the
Union (i).

(i) This section is now effete. The first sessions of the
legislatures of Ontario and Quebec respectively were held

THE B. N. A. ACT SECS. 82, 83. 333

on the 27th of December, 1867, just in time to comply with
the provisions of this section.

82. The Lieutenant-Governor of On-

tario and of Quebec shall from time to A
time, in the Queen’s name (i), by instru-
ment under the Great Seal of the Prov-
ince, summon and call together (ii) the
Legislative Assembly of the Province.

(i) ” In the Queen’s name.” See note (ii) to section 69,
ante. A clearer indication than this section 82 affords
could hardly have been given, that the Lieutenant-Gov-
ernor of a province, in his relations to the legislative
assembly of such province, represents the Queen. And see
also notes to section 90, post.

(ii) ” Summoned – and called together” See notes to
section 38, ante, p. 283. What is laid down in chapter
VIII., as to the exercise, by the Governor-General, of the
prerogatives of the Crown in connection with the sum-
moning, proroguing, and dissolving of parliament, is equally
applicable to the case of the Lieutenant-Governor of a
province. See notes to section 58, ante, p. 303.

83- Until the Legislature of Ontario

or of Quebec otherwise provides (i), a per- offices?
son accepting or holding in Ontario or in
Quebec any office, commission, or em-
ployment permanent or temporary, at the
nomination of the Lieutenant-Governor,
to which an annual salary, or any fee,
allowance, emolument, or profit of any
kind or amount whatever from the Prov-
ince is attached, shall not be eligible as
a member of the Legislative Assembly of
the respective Province, nor shall he sit

334 THE B. N. A. ACT SEC. 83.

or vote as such; but nothing in this sec-
tion shall make ineligible (ii) any person
being a member of the Executive Council
of the respective Province, or holding
any of the following offices, that is to say,
the offices of Attorney-General, Secretary
and Eegistrar of the Province, Treasurer
of the Province, Commissioner of Crown
Lands, and Commissioner of Agriculture
and Public Works, and in Quebec Solici-
tor-General, or shall disqualify him to sit
or vote in the House for which he is
elected, provided he is elected while hold-
ing such office (iii).

(i) ” Until the legislature ofOi/tariu or of Qnelw otlici’-
<r/sv -jirorh/cN” See notes to section 41, ante, p. 285. It is to be noticed that there is no corresponding provision with regard to the Dominion government, except so far as it may be embodied in section 41. It is difficult, in view of section 84, to see the necessity for this section 83 in the case of these provinces, except, perhaps, in connection with the first elections after Confederation. The matters referred to in the section have been the subject of legislation in all the provinces. The law, as to Ontario, will be found in R. S. ( ).. c. 11, and, as to Quebec, in R. S. Q., articles 186 to 144. (ii) ” Noth in;/ in tli.ix Hpcfiin) shall m”/r iiic’i //”>/.
,-;/r. : ‘ Prior to Confederation, this was the law in the vari-
ous provinces, and upon its existence hinges the difference
between the British constitutional system, and that of the
United States: see chapter L, <mte, p. 14, et wy. As to tin- Dominion, the law in this respect was continued by section 41, nte, p. 284, and as to Nova Scotia and New Brunswick by sections 64 and 88. See also section 129. Upon the admission of the other portions of British North America. THE B. N. A. ACT SEC. 84. 335 care was taken to establish therein the same system of re- presentative parliamentary government as exists in the United Kingdom, and as existed in the various pre-Confed- eration provinces. See Part IV., post. (iii) ” Provided he is elected while holding such ojjice”- This provision is a reminder of the days when ” the King’s party ” was accustomed to recruit its ranks by a lavish dis- tribution of office. It applies even to the acceptance of office by members of a new administration after a general election. See McDonell v. Smith, 17 U. C. Q. B. 310, and Macdonell v. Macdonald, 8 U. C. C. P. 479, which upheld as legal what is popularly known in Canadian history as the ” double shuffle ” of 1858. 84. Until the Legislatures of Ontario and Quebec respectively otherwise pro- ( vide (i) all laws which at the Union are in force in those Provinces respectively, relative to the following matters, or any of them, namely, the qualification and disqualifications of persons to be elected or to sit or vote as members of the Assembly of Canada, the qualifications or disqualifications of voters (ii), the oaths to be taken by voters, the Returning Officers, their powers. and duties, the pro- ceedings at elections, the periods during which such elections may be continued, and the trial of controverted elections (hi) and the proceedings incident thereto, the vacating of the seats of members and the issuing and execution of new writs in case of seats vacated otherwise than by dissolution, shall respectively apply to elections of members to serve in the 33() THE B. N. A. ACT SEC. 85. respective Legislative Assemblies of On- tario and Quebec. Provided that until the Legislature of Ontario otherwise provides, at any elec- tion for a member of the Legislative Assembly of Ontario for the District of Algoma, in addition to persons qualified by the law of the Province of Canada to vote, every male British subject, aged twenty-one years or upwards, being a householder, shall have a vote. (i> ” Until, etc!’ See notes to section 41, ante, p. 284.
Were it not that the power of the provincial legislatures to
deal with the various matters referred to in this section
may perhaps depend thereon, it might be said to be effete,
as the legislatures of all the provinces have long since
otherwise provided.

(ii) ” Voters!’ See note (ii) to section ^1, ante, p. 286.

(iii) ” The trial of controverted elections.” See Thebero-e_
v. Landry, referred to in the notes to section 41, ante, p. 288.
All that is laid down in the notes to that section, applies,
nnifatix iitnt<ni<Us, to the case of the provincial election
laws.

85- Every Legislative ‘Assembly of
Ontario and every Legislative Assembly
of Quebec shall continue for four years (i)
from the day of the return of the writs
for choosing the same (subject neverthe-
. less to either the Legislative Assembly of
Ontario or the Legislative Assembty of
Quebec being sooner dissolved (ii) by the
Lieutenant- Governor of the Province),
and no longer.

THE B. N. A. ACT SECS. 86, 87. 337

(i) ” Four years!’ See notes to section 50, ante, p. 293,
where this difference is noted in the position of the Do-
minion parliament and the legislatures of the different pro-
vinces, namely, thatfthe former cannot alter the provisions
of the B. N. A. Act in regard to this matter, while the latter
(under section 92, sub-section 1), can do so.

(ii) ” Sooner dissolved” See notes to section 0, ante,
p. 293, and note (ii) to section 82, ante, p. 333.

86- There shall be a Session of the S^Legls-
Legislature of Ontario and of that of Que- ]

bee once at least in every year, so. that
twelve months shall not intervene between
the last sitting of the Legislature in each
Province in one Session and its first sit-
ting in the next Session.

(i) ” Yearly Session.” See notes to section 20, ante}
p. 267, and see also chapter VIII., ante, p. 168. What is there
laid down as to the duty of the Governor-General to insist
upon the observance of the provisions of section* 20, is
equally applicable to the case of. a Lieutenant-Governor
under this section. There is no similar provision in the
B. N. A. Act as to Nova Scotia and New Brunswick, and,
so far as we have been able to find, no such provision exists
by law in those provinces.

As to Manitoba, British Columbia, Prince Edward Island,
and the North West Territories, see post.

87- The following provisions (i)*of
this Act respecting the House of Commons
of Canada shall extend and apply to the
Legislative Assemblies of Ontario and
Quebec, that is to say, the provisions re-
lating to the election of a Speaker (ii)
originally and on vacancies, the duties of

CAN. Cox. 22

338 THE B. N.~A. ACT SEC. 88.

_
the Speaker (iii), the absence of the

Speaker (iv), the quorum and the mode of
voting (v), as if those provisions were
here re-enacted and made applicable in
terms to each such Legislative Assembly.

(i) ” The following provision^” The provisions re-
ferred to are contained in sections 44 to 49 (both inclusive).
Upon nearly, if not quite, all of these matters, the assemblies
of the various provinces have exercised the legislative
power given by section 92, sub-section 1. See notes to
section 35, ante, p. 280, for some observations as to the
powers, in this regard, of the Dominion parliament.

(ii) ” The election of S’y> W.YT.” See section 47, and
notes.

(v) ” Tlw Q’tiortini (iixf ike -mode of rotiin/.” See
sections 48 and 49 ; with which compare sections 35
arid 36, relating to the Senate, and sections 78 and 79, as
to the Legislative Council of Quebec. ^

4. NOVA SCOTIA AND NEW BKUNSWICK.

ofLlSSa- ons 88- The constitution of the Legisla-
scotiaimi ova ture of each of the provinces of Nova

NewBruns- ‘ . .

Scotia and New Brunswick shall, subject
to the provisions of this Act (i), continue
(ii) as it exists at the Union until altered
under the authority of this Act ; and the

THE B. N. A. ACT SEC. 89. 339

House of Assembly of New Brunswick (iii)
existing at the passing of this Act shall,
unless sooner dissolved, continue for the
period for which it was elected.

(i) ” Subject to the provisions of this Act.” That is to
say, subject to the limitation of the ” sphere of authority ”
of the legislatures in these provinces under the B. N. A,
Act, and subject also to the difference in the mode of
appointment of the Lieutenant-Governor. In all other
respects, the constitutions of these provinces may be, from
time to time, altered by the provincial legislatures, under
the terms of section 92, sub-section 1.

(ii) ” Shall continue!’ See chapter III., ante, p. 52, et
seq.; also section 64 and notes thereto.

(iii) The House of Assembly of New Brunswick!’ See
ante, p. 52, where the difference in the provisions made for
New Brunswick, and for Nova Scotia see section 89 is
referred to.

5._ONTAEIO, QUEBEC, AND NOVA
SCOTIA.

89- Each of the Lieutenant-Govern-
ors of Ontario, Quebec, and Nova Scotia
shall cause writs to be issued for the first
election of members of the Legislative
Assembly thereof in such form and by
such person as he thinks fit, and at such
time and addressed to such Returning Offi-
cer as the Governor- General directs, and
so that the first election of member of
Assembly for any Electoral District or
any subdivision thereof shall be held at
the same time and at the same places as
the election for a member to serve in the

340 THE B. N. A. ACT SEC. 90.

House of Commons of Canada for that
Electoral District.

(i) ” First elections.” This section is now effete. See
notes to last section.

6. THE FOUR PEOVINCES.

90- The following provisions of this
Act respecting the Parliament of Canada,

respecting ‘ . . .

money votes, namely, the provisions relating to ap-
propriation and tax bills, the recommen-
dation of money votes, the assent to bills,
the disallowance of Acts, and the signifi-
cation of pleasure on bills reserved, shall
extend and apply to the Legislatures of
the several Provinces as if those provi-
sions were here re-enacted and made ap-
plicable in terms to the respective Pro-
vinces and the Legislatures thereof, with
the substitution of the Lieutenant-Gov-
ernor- of the Province for the Governor-
General, of the Governor-General for the
Queen and for a Secretary of State, of
one year (ii) for two years, and of the
Province for Canada.

(i) ” The following prorixionx” In reference to some
of the sections of the B. N. A. Act -those making provision
for the constitution, both legislative and executive, of
Ontario and Quebec we have spoken of the ” necessities of
the draftsman,” as the reason for their introduction. See
ante, p. 46. The insertion of this clause in the Act in its
present shape might more properly be said to have been
caused by the laziness of the draftsman. Applying its pro-
visions, literally, certainly makes some of the provisions to

THE B. N. A. ACT SEC. 90. 341

which it refers read very peculiarly, and affords an argu-
ment in support of the view which would belittle the posi-
tion of provincial legislatures, and of the Lieutenant-
Go vernors of the provinces. Let us take them in their
order :

(1) ” The provisions relating to appropriation and tax
Mils.” See section 53. This section can only be made to
affect those provinces in which a bi-cameral legislature ex-
ists. Should any of the provinces which now have one
house decide to alter their constitution in this respect, it
might perhaps be difficult to say which one of the two
houses would answer to the House of Commons, for both
houses might possibly be elective.

(2) ” The recommendation of money votes!’ See section
54, ante. What has been said as to section 53 applies with
equal force to any attempt to paraphrase section 54.

(3) ” Assent to bills.” See section 55. To paraphrase I
this section in accordance with the literal provisions of
section 90, would indicate that, in the view of the framers
of the B. N. A. Act, the Lieutenant-Governor’s assent to
Acts of a provincial legislature is not the assent of the
Queen but of the Governor-General. The case of Theberge \
v. Landry (o), before the Judicial Committee of the Privy
Council, in which it was held that the Lieutenant-Gover-
nor’s assent was the assent of the Crown, has bsen already
referred to ; see also the provisions as to the summoning of
the provincial legislature of Ontario and Quebec (section 82,
ante,. p. 333), and the provisions in reference to the appoint-
ment of members of the Legislative Council of Quebec,
(section 72, ante, p. 329). As has been frequently pointed
out, all executive officers throughout the Empire act under
commission direct from the executive head of the Empire,
although their appointment may be through the medium
of certain other executive officers. The dispute has now
been given its quietus by the recent judgment of the

(w) 2 App. Cas. 102.

q 3 ***>
ijjs*^

342 THE B. N. A. ACT SEC. 90.

Judicial Committee of the Privy Council in Liquidators,
e ^ c – v< ReofiiEfii^JGeneral of New Brunswick, Times L. R, “Vol. VIII., p. 677. See the passages quoted in note (v) to section 58, and note (ii) to section 69. I (4) ” The dwctUowanceofi^Scta” This matter has been /already fully dealt with. In chapter VIII, ante, p. 172, will be found a criticism of Professor Dicey’s statement that the rdo power was lodged with the Dominion Govern- ment in order to obviate the necessity for resort to the courts for the determination of these constitutional ques- tions ; and by reference to the debates upon the Quebec Resolutions, we endeavoured to point out that the framers of those resolutions knew perfectly well what the position of affairs would be, upon the carrying out of the scheme therein contained. The views of judges since Confederation, cannot of course be cited against Professor Dicey’s state- ment. We may refer however to Leprohon v. Ottawa (y>),
in which the judges of the Court of Appeal for Ontario,
laid down without hesitation, that the fact that a pro-
vincial law had not been disallowed by the Dominion
authorities, could in no way affect the question as to its
legal validity. Hagarty, C.J., says : “I do not see how the
existence of such power can affect the constitutionality of
the enactment ‘ : and Mr. Justice Burton uses this language :
” Whether allowed or not, to the extent that provincial
Acts transcend the competence of the provincial legislature,
they are void.” To refer again to the language of the
rimnot-llor of Ontario, in Attorney-General (Canada) v.
Attorney-General (Ontario) (q), the power of disallowance
is one which may operate both in the plane of political
expediency, and in that of jural capacity. Its exercise in
these days is largely confined to the former. The result is
very fairly summed up by Lord Hobhouse, in delivering the

(p) 2 O. A. R. 52?. See also Reg. v. Chandler, referred to in the
notes to sec. 91, s-s. 21, post.
(q) 20 O. R. at p. 245.

THE B. N. A. ACT SEC. 91. 843

judgment of the Judicial Committee of the Privy Council,
in Bank of Toronto v. Lambe (?) :

” 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.”

(5) ” The signification of pleasure on bills reserved “-
See section 57 ; also chapter VII, ante, p. 149.

(ii) ” One year” In chapter VII. (ante, p. 149), we
have pointed out that upon the expiration of the two years
allowed by section 56 for the disallowance by the Queen in
Council of Dominion legislation, no act of Imperial execu-
tive authority can thereafter weaken its effect; that
nothing short of ” repugnant ” Imperial legislation can
override it. The first proposition is equally applicable to the
position of the Dominion executive in reference to provin-
cial legislation after the expiration of the one year allowed
by this section 90 for its disallowance. The second propo-
sition has no application, except in the case of section 95.
Upon the expiration of the year, no power short of Imperial
legislation can interfere with the operation of a provincial
Act, passed in relation to a matter within its legislative
competence. The Dominion legislature cannot interfere
because the legislative powers of the Dominion and of the
provinces are exclusive, each of the other. See chapter X.,
, p. 206.

VI. DISTRIBUTION OF LEGISLATIVE POWERS (i).
Powers of the Parliament (ii).

91. It shall be lawful for the Queen
(iii), by and with the advice and consent
of the Senate (iv) and House of Commons

(>) 12 App. Gas. at p. 587.

344 THE B. N. A. ACT SEC. 91.

(v) to make laws for the peace, order, and
good government (vi) of Canada, in rela-
tion to (vii) all matters not coming (viii)
within the classes of subjects by this Act
assigned exclusively to the Legislatures
of the Provinces ; and for greater cer-
tainty (ix) 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 (x) Legislative Authority of the
Parliament of Canada extends to all mat-
ters coming within the classes of subjects
next hereinafter enumerated (xi) ; that is
to say :

(i) ” Distribution of legislative powers.” As a prelim-
I inary to the study of this and the following section, chap-
| ters X. and XI. (particularly the former) should be carefully
read. In chapter X. we have endeavored to collect from
the cases particularly those which have been decided by
the Judicial Committee of the Privy Council what lias
been authoritatively laid down as to the nature of the
division effected by the B. N. A. Act, and have noted also
certain general rules of construction applicable to the in-
terpretation of these two very difficult sections of the Act.

(ii) “Power* of the jut fl’n intent” These powers are not
exhausted by the various sub-sections. See notes to section
41, ante, p. 289, and section 13%, post. Other sections’, too.,
have been noted in which power has been expressly given
to the parliament of Canada (the same is true of the pro-
vincial legislatures as well) to alter certain provisions
of the B. N. A. Act in reference to the conduct of
its business. But, apart altogether from these various
sections dealing with special matters, the opening words of

THE B. N. A. ACT SEC. 91. 345

(section 91 clearly assign the iniejjnm prated ” rooidumn ” of j
L_ subject matters, proper to be legislatively treated by a

colonial legislature, to the parliament of Da.na.da.. and various
Acts of the Dominion parliament have been upheld although
it was not possible to classify their provisions as falling
within any of the various sub-sections of section 91.

For instance, in Russell v. The Queen (s), the Judicial
Committee of the Privy Council upheld the provisions of
the Canada Temperance Act upon this ground :

“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 . . that, if the Act does not come within one of
the classes of subjects assigned to the provincial legislatures,
the parliament of Canada had not by its general power ‘ to make
laws for the peace, order, and good government of Canada,’ full
legislative authority to pass it.”

In Citizjejis^v^JEarsons (t), the power of the Dominion/
parliament to incorporate companies with powers extending
over the whole Dominion, or over more than one province,)
was clearly recognized as existing under the general words!
of this section. The following passage is taken from the
judgment of Sir Montague Smith, in delivering the judg-
ment of the Privy Council :

” Taschereau, J., in the course of his vigorous judgment, seeks
to place the plaintiff in the action against the Citizens Company
in a dilemma. He thinks that the assertion of the right of the
province to legislate with regard to the contracts of insurance
companies amounts to a denial of the right of the Dominion
parliament to do so, and that this is, in effect, to deny the right
of that parliament to incorporate the Citizens Company, so that
the plaintiff was suing a non-existent defendant. Their Lord- *
ships cannot think that this dilemma is established. The
learned judge assumes that the power of the Dominion govern-
ment to incorporate Companies to” carry on business in the
Dominion is derived from one of the enumerated classes of subjects,
viz., ‘the regulation of trade and commerce,’ and then argues

(s) 1 App. Cas. 829. (t) 1 App. Gas. ( J6.

84() THE 13. N. A. ACT SEC. 91.

that if the authority to incorporate companies is given by this
clnuse, the exclusive power of regulating them must also be
given by it, so that the denial of one power involves the denial
of the other. But, in the first place, it is not necessary to rest
the authority of the Dominion parliament to incorporate com-
panies on this specific and enumerated power. The authority
would belong to it by its general power over all matters not
coming within the classes of subjects assigned exclusively to the
legislatures of the provinces ; and the only subject on this head
assigned to the provincial legislature being ‘ the incorporation
of companies with provincial objects,’ it follows that the incor-
poration of companies with objects other than provincial falls
within the general powers of the parliament of Canada.”

Ill ftp. “Rrjfrin IMWli^a,] fl, T >r] Honer^! Life Association (/’),
it was held that the Dominion Acts which require a deposit
with the Minister of Finance by foreign corporations seek-
ing to do business within Canada, Avere i-utrn vires.

In fog Wp.t.hfifP.11 fl.p<-] JrmPK (r\ the power of the Dominion parliament to pass an Act in reference to the taking of evidence in the various provinces for use before foreign tribunals, was upheld, as coining within the general words of this section 91. The provincial legislatures, it was held, have no power to pass such Acts, as in their operation, they are of extra-provincial pertinence, and do not relate to the administration of justice, or to property and civil rights in the province. It may be noted, too, that such laws in no way offend against the rules which have been laid down as to the territorial limitation upon the legislative power of a colony. The extra-territorial effect to be given to proceedings taken under such Acts depends upon the law of the country in which the evidence is to be used. Mr. Justice Torrance, of the Quebec Superior Court, had arrived at tlie same conclusion in :E,>’ i>[TJe Smith (w), which came

(if) 12 O. II. 441. See further, on this subject of the incorporation,
etc., of companies, the notes to s. 92, s-s. 10 and 11.
(r) 4 O. R. 713.
(w) 16 L. C. Jur. 140 ; 2 Cart, 330.

THE B. N. A. ACT SEC. 91. 847

before him in 1872. He speaks of the Dominion Act in
question, as an Act in relation to ” a matter of international
comity.”

(iii) ” The Queen!’ See notes to sections 9, 58 and 09>
a/nte.

(iv) ” The Senate.” See section 21, etseq.

(v) ” House of Commons” See section 37, et seq.

(vi) ” The peace, order, and good government.” This is
an expression very frequently used in Imperial Acts creative
of colonial constitutions (x), and it also occurs in many of
the commissions to the early governors. The same words
are used in 34 & 35 Vic., c. 28, giving the Dominion parlia-
ment legislative power over the territories. Their very wide!
scope^jis thus referred to in Kiel v. Regina (y) by Lord*
Chancellor Halsbury, in delivering the judgment of the
Judicial Committee of the Privy Council :

” It is not denied that the place in question was one in res-
pect of which the parliament of Canada was authorized to make
such provision, bat it appears to be suggested that any provision
differing from the provisions which in this country have been
made for administration, peace, order and good government, can-
not, as matters of law, be provisions for peace, order and good
government in the territories to which the statute .relates, and
further that, if a court of law should come to the conclusion that
a particular enactment was not calculated as matter of fact and
policy to secure peace, order and good government, they
would be entitled to regard any statute directed to those objects,
but which the court should think likely to fail of that effect, as
ultra firex, and beyond the competency of the Dominion parlia-
ment to enact. Their Lordships are of opinion that there is not 1 ^
the least colour for such a contention. The words of the statute
are apt to authorize the utmost discretion of enactment for the
attainment of the objects.^ointed to. They are words under
which the widest departure from criminal procedure as it is
known and practised in this country, have been authorized in Her
Majesty’s Indian Empire. Forms of procedure unknown to the

ix) See note (t) p. 54, ante. (y) 10 App. Cas. 675.

S4S THE B. X. A. ACT SEC. 01.

English common law have there been established and acted upon,
and to throw the least doubt upon the validity of powers con-
veyed by these words would be of widely mischievous conse-
quence.”

(vii) ” LIU-.*; lit I’^iy^o’it to” See chapter IX., (int?,
p. 194, note (<-), where reference is made to the wording of
the Constitution of the United States in those sections of
it which confer legislative power upon Congress. As is
there pointed out, the words of our statute are, il^coinpari-
son be in order, wider than the words of the American
” Constitution,” and the various American authorities sup-
porting the doctrine of ” implied powers ” may, therefore,
appear applicable, a fortiori, to the powers of Canadian
legislatures.

In Bennett v. Pharmaceutical Association of Quebec (:),
Dorion, C.J., lays it down :

” We consider, as a proper rule of interpretation in all these
cases, that when a power is given, either to the Dominion or to
the provincial legislatures, to legislate on certain subjects coming
clearly within the class of subjects which either legislature has
a right to deal with, such power includes all the incidental sub-
jects of legislation which are necessary to carry on the object
which the 13. N. A. Act declared should be carried on by that
legislature.”

The application, however, of this doctrine brings us face
to face with the question as to the existence of “concurrent
powers ‘ and, in every case, calls for a careful consideration of
those rules of interpretation (laid down by the Judicial Com-
mittee of the Privy Council in Russell v. Reg. (<()and Bank of Toronto v. Lambe (/>)), which we have already discussed
in chapter^X. see ante, pp. 212, 213, et seq. In truth, ,-is
a distinct, independent rule of interpretation, this doctrine
of ” implied powers ‘ is scarcely applicable to a federal
system such as ours. It is really nothing more than a

(z) 1 Dor. 336; 2 Cart. 250. Se3 also notes to section 91, sub-section
2, and section 92, sub-section JG.

(</) 7 A pp. Cas. 82;). (b) 12 App. Gas. 575.

THE B. N. A. ACT SEC. 91. 349

short form of expression embodying the doctrine of the
supremacy of the legislature (c) in relation to those matters
which, upon a reasonable and proper interpretation, can
fairly be said to fall within one of the classes of subjects
committed to such legislature ; but, as will bd at once per-
ceived, this still leaves the question open for the application
of those other rules rules of interpretation proper appli-
cable for the reconciliation of apparently conflicting sub-
sections of sections 91 and 92. Legislative jurisdiction i
must first be conceded before the doctrine of ” implied
powers ” can apply. A reference to the various cases, in
which this doctrine has been applied in terms will, we think,
disclose that as a preliminary to its application, jurisdiction
over the subject matter in dispute was determined. It is
noteworthy that the Judicial Committee of the Privy
Council have never used the phrase ” implied powers,” pre- ^
ferring the other form ” ^^jj^^powers.” Gushing v. ^/
Dupuy (d) in reference to the scope of ” bankruptcy and
insolvency ” legislation, is frequently referred to as illustra-
tive of the application of this doctrine of ” implied powers,”
but a perusal of the judgment of the Committee in that
case discloses that no such doctrine is referred to, the point
decided being that procedure is an essential part of insol-
vency legislation a decision as to the scope of certain
words in the B. N. A. Act, not as to the nature of the legis-
lative power of the Dominion parliament.

(viii) “Not coming within.” See note (ii) to this
section.

(ix) “For greater certainty.” See the passage, from
the judgment in Citizens v. Parsons, quoted ante, p. 207,
et seq.j with which may “EeTcompared the language of the
judges of the Supreme Court of Canada in the same case (e)
and in City of Frederictori v. Reg. (/).

(c) See ante, p. 177, et seq., 194, ct scq. (e) 4 S. C. E. 215.

(d) 5 App. Gas. 409. (f) 3 S. C. II. 505.

350 THE B. N. A. ACT. SEC. 91.

(x) “Exclusive” It is now settled beyond controversy
that this word refers to the extent to which the legislative
power of the Dominion parliament may be exercised t< > the
exclusion of legislation by the provincial assemblies, and

I was in no way intended as a limitation upon the supreme
legislative authority of the Imperial parliament. We have
: already referred to this question in chapter IV. see tnttv,
p. 67 and need here merely add a reference to some other
Canadian cases in which the legislative supremacy of the
Imperial parliament has in view of this phrase in the
B. N. A. Act been questioned.

In the case of ” The Farewell ” (see notes to sub-section
10 of section 91, post), Mr. Justice Stuart, of the Quebec
Vice- Admiralty Court, distinctly recognizes the continued
supremacy of the Imperial parliament. He held that upon
the proper construction of the Colonial Laws Validity Act,
1865, effect should be given to an Act of the parliament of
of Canada, even though in part repugnant to an Imperial
statute, so far as its provisions do not conflict with those of
such Imperial enactment (g).

See also the case of Holmes v. Temple (k), referred to
more fully in the notes to section 91, sub-section 7, yW,
and we may also note upon this question as to the continued
supremacy of the Imperial parliament, since the B. N. A.
Act, the language of Ritchie, C.J., in delivering the t judg-
ment of the majority of the New Brunswick Supreme
Court, in ex j><i/’t< j Renaud (/), a case which will be found
more fully discussed in the notes to section 93, poxt.

(xi) ” The r/r/.sxrx <>f .^nhjcrttt next hereinafter enumer-
ated.” In chapter X. see ante, p. 211 will be found
quoted the language of the Judicial Committee of the Privy
Council in L’Union St. Jacques v. Belisle (ii), in which that
tribunal lays down that, in this section 91, “‘there is no in-
to) 2 Cart. 378 ; 7 Q. L. R. 380. (i) 2 Cart, 445 ; 1 Pug. 273.
(/) 2 Cart, 39G; 8 Q. L. R. 351. (ii) L. R. 6 P. C. 31.

THE B. N. A. ACT SEC. 91. 351

dication in os. In Citizens v. Parsons (n), the Committee )
distinctly held that an insurance company, incorporated
under Dominion legislation, is subject, as to the contracts
of insurance entered into by it, to the laws of the province
in relation to such contracts generally, as being a matter of
property and civil rights in the province. By way of illus- ‘
tration obiter, the question of the , applicability of the
statutes of Mortmain to such a company was touched upon,
and the view expressed that a company incorporated under
Dominion legislation would be subject to the law of the
province in this regard. In Colonial Building Association
v. Attorney-General of Quebec (o), this view was again dis-
tinctly enunciated. I Carrying these decisions to their logical*
conclusion, it would appear that the Dominion parliament
cannot confer, upon any body incorporated by it, any power
in relation to matters falling within the legislative

(n) 7 App. Gas. 96. (o) 9 App. Gas. 157.

CAN. CON. 23

354 THE B. N. A. ACT SEC. 91.

petence of a provincial legislature ca^n^t

words, any pQwerjaduch. it could not itself directly exercise.
There is nothing in any of the other judgments of that
tribunal to throw doubt upon this as being a correct enunci-
ation of the law in regard to this very perplexing matter.
A precisely similar question arises in connection with the
subject of ” municipal institutions” and will be found dis-
cussed in the notes to sub-section 8 of section 92.

The subject of special legislation has been lately
brought again to the front by the judgment of the
Supreme Court of Canada in a case (p) which arose out of
the winding up of the defunct Bank of Upper Canada.
Prior to Confederation the bank had become insolvent
and had assigned all its property and assets to trustees.
By 31 Vic. c. 17, the Dominion parliament incorporated
the trustees and gave them authority to carry on the
business of the bank so far as was necessary for winding
up the same. By 33 Vic. c. 40, all the property of
the bank vested in the trustees was transferred to the
Dominion government, who became thereby seised of all
the powers of the trustees. In the Court of Appeal for
Ontario, the court was equally divided as to the validity
of this Dominion legislation. Hagarty, C.J.O., and Osier,
J.A., upheld the Acts as being within the legislative power
of the Dominion parliament over ” banking, the incorpora-
tion of banks,” and also over “bankruptcy and insolvency”;
while Burton and Maclennan, JJ.A., held that the Acts
were in relation to ” property and civil rights in the pro-
vince,” and could only have been validly passed by a
provincial legislature. In the Supreme Court the judgment
was unanimous, upholding the validity of the impugned
Acts. Ritchie, C.J., held that the legislative authority of
parliament over banking and the incorporation of banks,
and over bankruptcy and insolvency, empowered it to pass

(p) Quirt v. Reg., 19 S. C. R. 510, affirming 17 O. A. R. 421 (Reg. v.
Wellington).

THE B. N. A. ACT SEC. 91, S.-S. 1. 355

such Acts, while of the other members of the court, Strong
and Patterson, JJ., founded their judgment upon the latter
power only, the three other judges not intimating the
ground of their concurrence.

This legislation was undoubtedly private bills legislation
and the judgment of the Supreme Court must be taken as
conclusive upon all Canadian courts, that the power of the
Dominion parliament under the v arious sub-sections of sec-
tion 91 does extend to private bills legislation so long as
the subject matter legislated upon can be fairly said to fall
within any of those sub-sections. There is one of the sub-
sections of this section 91 which upon its face would seem
to indicate that it was intended to confer power to pass
private and special Acts, namely, sub-section 7, referring
to ” Sable Island.” No argument, however, can be founded
upon this sub-section, as it must evidently be read in con-
nection with sub-section 10, and, in fact, the only legislation
in reference to it is in connection with light-houses and
other safeguards to navigation. See R. S. C. (1886), c. 70.

It is hardly necessary to say that in considering this
question those other rules of interpretation which have
been laid down as applicable for the reconciliation of appar-
ently conflicting powers, must not be lost sight of ; but the
question now being discussed has reference, rather, to the
possibility of laying down a general rule of construction
applicable to section 91 and its various sub-seqtions, irre-
spective, in a sense, of section 92 and its sub-sections. We
shall have occasion to again touch upon certain aspects of
this question, but we may say that we make no pretence
to an exhaustive treatment of it, and any views we may
venture upon moot points are advanced with much mistrust.

1. The Public Debt and Property.

This has reference, of course, to the public debt of the
Dominion, as a unit, assumed upon Confederation or since
incurred, and to the public property held by the Dominion
Government in trust for Canada as a whole.

356 THE B. N. A. ACT SEC. 91, S.-8. 2.

In section 102, post, and the following sections, will be
found the provisions of this Act as to the division of assets,
and the distribution of revenue producing powers between
the Dominion and the provinces, and any extended reference
to this question will be more in order when we come to con-
sider those provisions of the Act. We may say, however,
in reference to the legislative power of the Dominion ‘and
the provinces over their respective property, and in connec-
tion with their revenue producing powers, that the absence
of any provision in the various sub-sections of section 92,
similar to the provision made by this sub-section 1 of sec-
tion 91, does not in any way afford an argument against
the full legislative authority of a provincial legislature in
reference to provincial assets. The B. N. A. Act simply
affects a division of the beneficial interest in the various
provincial assets as they existed at the time of Confedera-
tion, but, in reference to the revenue therefrom, cannot be
deemed to weaken in any way the effect of the Imperial
Act, 17 & 18 Vic. c. 118, and the other Imperial Acts,
giving Canadian legislatures full power of appropriation
over all revenues from whatever source within the colony
arising. See notes to section 126.

2. The regulation of Trade and Com-
merce.

In the leading case of Citizens v. Parsons, the meaning
proper to be attributed to the language of this sub-section
w T as discussed. In that case, the Act impugned was the
Ontario Act providing for uniform conditions in fire insur-
ance contracts. Without deciding whether or not lire
insurance is a trade, the Judicial Committee of the Privy
Council decided that this sub-section does not extend to
the regulation of the contracts of a particular business or
trade in a single province. What, in the view of their
\Lordships, -may properly be held to come within this sub-
I section will be best shown by the following extract from
the judgment in that case (q] :

(q) 7 App. Gas. 96.

THE B. N. A. ACT SEC. 91, S.-S. 2. 357

” The words * regulation of trade and commerce ‘ in their
unlimited sense are sufficiently wide, if uncontrolled by the
context and other parts of the Act, to\ include every regulation ,
of trade, ranging from political arrangements in regard to.
trade with foreign governments, requiring the sanction of
parliament, down to minute rules for regulating particular
trades. But a consideration of the Act shows that the words
are not used in this unlimited sense. In the first place the
collocation of No. 2 with classes of subjects of national and
general concern, affords an indication that (regulations relating!
to general trade and commerce were in the mind of the legis- )
lature, when conferring this power on the Dominion parlia-
ment. If the words had been intended to have the full scope
of which, in their literal meaning, they are susceptible, the
specific mention of several of the other classes of subjects
enumerated in section 91, would have been unnecessary ; as, 15,
banking ; 17, weights and measures ; 18, bills of exchange and
promissory notes ; 19, interest, and even 21, bankruptcy and
insolvency.

” ‘Regulation of trade and commerce ‘ may have been used
in some such sense as the words * regulations of trade,’ in the
Act of Union between England and Scotland (6 Ann., c. 11),
and as these words have been used in Acts of State relating to
trade and commerce. Article V. of the Act of Union enacted,
that all the subjects of the United Kingdom should have ‘ full
freedom and intercourse of trade and navigation ‘ to and from
all places in the United Kingdom and the colonies ; and Article
VI. enacted, that all parts of the United Kingdom, from and after
the Union, should be under the same ‘ prohibitions, restrictions,
and regulations of trade.’ Parliament has at various times since
the Union passed laws affecting and regulating specific trades in
one part of the United Kingdom only, without it being supposed
that it thereby infringed the Articles of Union. Thus, the Acts
for regulating the sale of intoxicating liquors notoriously vary in
the ft two kingdoms. So with regard to Acts relating to bank-
ruptcy, and various other matters.

‘ ‘ Construing, therefore, the words ‘ regulation of trade and ^
commerce ‘ by the various aids to their interpretation above
suggested, they would include political arrangements m regard

358 THE B. N. A. ACT SEC. 91, S.-S. 2.

to trade requiring the sanction of parliament, regulations of
trade in matters of inter-provincial concern, and it may be that
they would include general regulations of trade affecting the u-kolf
Dominion. Their Lordships abstain on the present occasion from
any attempt to define the limits of the authority of the Dominion
parliament in this direction. It is enough for the decision of
the present case to say that, in their view, its authority to legis-
late for the regulation of trade and commerce does not compre-
hend the power to regulate by legislation the contract of a
particular business or trade, such as the business of fire insur-
ance, in a single province, and, therefore, that its legislative
authority does not in the present case conflict or compete with
the power over property and civil rights assigned to the legisla-
ture of Ontario by No. 13 of section 92.”

” In Russell v. The Queen, in the same volume (r), involv-

ing the validity of the Canada Temperance Act, 1878, Sir
Montague E. Smith, in delivering the judgment of the
Judicial Committee of the Privy Council, intimated that
their Lordships

” Must not be understood as intimating any dissent from the
opinion of the Chief Justice of the Supreme Court of Canada and
the other judges who held that the Act as a general regulation of
the traffic in intoxicating liquors throughout the Dominion, fell
within the class of subjects, ‘ the regulation of trade and com-
merce ‘ enumerated in that section, and was on that ground a
valid exercise of the legislative power of the parliament of
Canada.”

As has been already noted (,s), the judgment of the
Privy Council proceeds upon the ground that the subject
was one not falling within any of the sub-sections of sec-
tion 92, and was therefore within the power of the
Dominion parliament as a matter pertaining to ” the peace,
order, and good government of Canada,” but in Hodgf \ .
The Queen, involving the question of the validity of* the
Ontario Liquor License Act, 1877, the earlier decision is
discussed and again put clearly upon the opening language

(r) 7 App. Gas. 829. (*) Ante, p. 345.

THE B. N. A. ACT SEC. 91, S.-S. 2. 359

of section 91. The Liquor License Act was held not to be
an interference with the general regulation of trade and
commerce, which belongs to the Dominion parliament, and
it was also held not to conflict with the Canada Temper-
ance Act, which had not been locally adopted.

This is perhaps the proper place to notice the various
cases which have arisen in reference to the liquor traffic,
for the attacks which have from time to time been made
upon provincial legislation in connection with this subject
have practically ranged themselves under this sub-section.
At this date, however, there is only one matter which is 1
open to argument, the power, namely, of a provincial legis- <*\~ lature to pass a prohibitory law for the province. Owing to the emphatic pronouncement of the Privy Council in Hodge v. The Queen (), in support of the power of provincial legislatures to regulate the sale of intoxicating liquor, and to their equally emphatic affirm- ance of the invalidity of the Dominion Liquor License Act, 1883 (u), it will not i>e necessary to discuss at any length
the earlier decisions in the various provinces.

fci Ontario, the power of a provincial legislature to
empower a municipality to limit the number of tavern
licenses, and to entirely prohibit the sale of liquor in places
other than houses of public entertainment, was affirmed
(1875) by the Court of Queen’s Bench in Slavin v. Orillia
(v), and the decision in this case may be said to embody
the law upon this point as judicially recognized in the
courts of that province until Hodge v. The Queen became
the leading case. Such power was held not to infringe
upon the field allotted to the Dominion parliament by the
term ” the regulation of trade and commerce,” but to fall
properly within the field covered by ” municipal institu-
tions ” and ” property and civil rights in the province.” As

(0 9 App. Gas. 117. (u) Cassels, Sup. Ct. Dig. 543.

(v) 1 Cart. 688 ; 36 U. C. Q. B. 159.

360 THE B. N. A. ACT SEC. 91, S.-S. 2.

to this last point which sub-section of section 92 supports
such legislation ? we shall have to speak later.

The question came before the Supreme Court of the
province of New Brunswick, in 1875, in Reg. v. The
Justices of King’s (w), and although the decision of the
court was against the validity of the statute there impugned
(36 Vic. c. 10), it was upon the ground that the Act was
prohibitory in its character, allowing, as it did, a majority of
the ratepayers in a municipality to entirely prevent the
issue of any licenses for the sale of intoxicating liquor
within such municipality. Power to make regulations for
the good government of saloons, taverns, etc., such as
would tend to the preservation of good order in the
locality ” matters of municipal police, and not of com-
merce “was conceded by Chief Justice Ritchie to pro-
vincial legislatures, but ” if, outside of this, and beyond
the granting of the licenses referred to in order to raise
a revenue for the purposes mentioned, the legislature
undertakes directly or indirectly to prohibit the manu-
facture or sale, or limit the use of* any article of trmlr
or commerce, whether it be spirituous liquors, flour, or
other articles of merchandize, so as actually and absolutely
to interfere with the traffic in such articles, and thereby
prevent trade and commerce being carried on with respect
to them . . they assume to exercise a legislative power
which pertains exclusively to the parliament of Canada.”
This represented the law of that province, as recognized
at least until Hodge v. Reg. In fact, it is still a question
about which opinions conflict, whether a local legislature
can empower a majority of the ratepayers of a municipality
to absolutely prevent the issue of any licenses to sell
intoxicating liquor therein. As we shall see, the judgment
of the Supreme Court in Danaher v. Peters (x), does not go
the full length of upholding such a provincial enactment.

In Nova Scotia, the question was pronounced upon by
the Supreme Court of that province, in 1877, in .Keefe v.

(w) ‘2 Cart. 499 ; 2 Pug. 535. (x) 17 S. C. B. 44.

THE B. N. A. ACT SEC. 91, S.-S. 2. 361

McLennan (y\ and it was broadly held that a provincial
legislature ” is entitled to legislate with a view to regulate
within the province the sale of whatever may injuriously
affect the lives, health, morals, or well-being of the com-
munity, whether it be intoxicating liquors, poisons, or un-
wholesome provisions, if such legislation is made bonafole
with that object alone, even though to a certain limited
extent it should affect trade and commerce.”

In Quebec, the question did not come squarely before
any appellate court until very shortly before the decision
in Hodge v. The Queen (z) was pronounced by the Judicial
Committee of the Privy Council. The Canada Temperance
Act of 1864 was in force in many of the counties of that
province, and the earlier decisions in connection with this
subject dealt, rather, with the question as to the position
of that Act after Confederation.

In Hart v. Mississquoi (a), however, Mr. Justice Caron
held that a provincial legislature cannot repeal or modify
those sections of the Canada Temperance Act, 1864 (the
Dunkin Act), which conferred on municipal councils the
power to pass by-laws for prohibiting the sale of intoxica-
ting liquors. The ground upon which this decision is put,
namely, that such legislation would conflict with the powers
of the Dominion government under this sub-section 2, is the
debatable ground to-day. See this question also discussed
in Re Local Option Act (b), in the Court of Appeal for
‘ Ontario. To the same effect is the decision of Mr. Justice
Dunkin, in Cooey v. Brome (c), in which, after reviewing
municipal legislation prior to 1867, he refers to section 129
of the B. N. A. Act as leaving the law as it then existed,
subject to repeal or amendment by that legislature, which
if the law were non-existent, would now have authority
to enact it. He considered that the Dunkin Act in its

(y) 2 Cart. 400 ; 2 Kuss. & Ches. 5. (&> 18 O. A. K. 572 ; see post.
(z) 9 App. Gas. 117. (c) 2 Cart. 385 ; 21 L. 0. Jur. 182.

() 2 Cart. 382 ; 3 Q. L. E. 170.

:

362 THE B. N. A. ACT SEC. 91, S.-S. 2.

general scope and effect was an Act respecting trade and
commerce and that, therefore, none of its provisions could
be altered by provincial legislation. Noel v. Richmond,
(1 Dor. 333 ; 2 Cart. 246) deals only with the question
arising under section 129.

In Blouin v. Quebec (d), it was held by Chief Justice
Meredith that the provision of the Quebec statute (38 Vic-
c. 74), fixing the hours during which taverns, etc., should be
kept open, was within the competence of the provincial
legislature ; that the provincial legislatures may make
reasonable regulations for the preservation of good order in
the municipalities under their control, and may for this
purpose restrict the sale of spirituous liquors. The Chief
Justice holds that provincial legislation, such as above in-
dicated, falls within the provisions of section 92, sub-section
8, ” municipal institutions,” such laws being in the nature
of police regulations.

It was held by Mr. Justice Alleyn, in De St. Aubyn v.
Laf ranee (e), that while provincial legislatures may make
laws regulating the sale of liquors in taverns and public
places, in order the better to maintain peace and good order,
they cannot directly or indirectly prohibit the manufacture
or sale of spirituous liquors, or other articles of commerce
or confer authority for that purpose upon municipal
councils. Such legislation it w^as held would be in direct
conflict with the powers of the Dominion parliament under
this sub-section.

Finally, just prior to the decision in Hodge v. Reg., the
general question of the power of a provincial legislature in
connection with the liquor traffic came before the Quebec
Court of Queen’s Bench (appeal side), in Three Rivers v.
Suite (/). It was held broadly that a provincial legisla-

(d) 2 Cart. 368 ; 7 Q. L. R. 18 (1880).

(e) 2 Cart, 392 ; 8 Q. L. R. 190 (1882).

(/) 5 Legal News, 330; 2 Cart. 280. Affirmed 11 S. C. R. 25. See
also Poulin v. Quebec, 9 S. C. R. 185.

THE B. N. A. ACT SEC. 91, S.-S. 2. 863

ture has the power under ” municipal institutions ” to pass
a prohibitory liquor law, or a liquor law which is .prohibi-
tory except under certain conditions. Reference was made
to the condition of affairs in the provinces prior to Confed-
eration, and it was held that the powers then possessed by
municipal bodies in, at any rate, ” two great provinces of
Confederation and one of the smaller ones ” (Nova Scotia),
are the powers which a provincial legislature can now
bestow upon such bodies. The affirmance of the decision
in this case in the Supreme Court cannot be taken as an
affirmance of the ground upon which the decision was
based. The judgment of the Supreme Court is avowedly
put as following Hodge v. Reg.

We have already quoted, see ante, p. 358, the passage
from the judgment of the Judicial Committee of the Privy
Council in Russell v. The Queen (g), in which that tribunal
intimated that although its judgment upholding the
validity of the Canada Temperance Act, 1878, was based
upon the residuary clause, as it has been termed, of section

91 , they nevertheless did not desire to be understood as dis-
senting from the position taken by the Supreme Court of
Canada in Freclricton v. The Queen (h), in which the Act
was upheld as a matter relating to the regulation of trade
and commerce. In many quarters this was taken to mean \
that the Dominion parliament alone has power to legislate
in connection with the liquor traffic. This view however I
was very decisively negatived in the judgment of the Privy I
Council in Hodge v. The Queen (i), upholding the validity ;
of the Ontario LiquoiTLicense Act. While, as we shall have
to point out, a good deal of uncertainty exists upon the ques-
tion upon which one of the various sub-sections of section,

92, the legislative power of a provincial legislature over
certain phases of the liquor traffic is to be rested, it is now
clearly settled that, so long as provincial legislation stops

(g) 1 App. Gas. 829. (h) 3 S. C. R. 505.

(i) 9 App. Cas. 117.

8(54 THE B. N. A. ACT SEC. 91, S-.S. 2.

short of absolute prohibition, it cannot be taken to infringe
upon the regulation of trade and commerce.

Following Hodge v. The Queen, the Supreme Court of
Canada has since affirmed the validity of the Liquor License
Acts of Quebec and New Brunswick respectively. See
Suite v. Three Rivers (j), and Danaher v. Peters (k\

We should, perhaps, mention here that in Severn v. The
Queen (I), the Supreme Court of Canada held that a pro-
vincial legislature has no power to pass an Act requiring a
brewer to take out a license to sell liquor manufactured by
him. The judgment of the court was founded on the view
(1) that such legislation was an interference with trade and
commerce; and (2) that a brewer’s license is not ejusd&m
generis with the licenses particularly mentioned in section
92, sub-section 9. So far as the first ground is concerned,
Hodge v. The Queen (m), must be considered to deprive
Severn v. The Queen of its support ; and as to the second,
the judgment of the Privy Council in Bank of Toronto v.
Lambe (n) must be taken as an affirmance of the power of
a local legislature to levy such a license fee as beiiii;’ a
“direct” tax within the province under sub-section 2 of
section 92.

The removal of the first ground of support is recognized
by the judgment of the Supreme Court in Molsmi v. Lam V’
(o), although that case is complicated somewhat by reason
of the question as to the propriety of the issue of a writ of
prohibition under the peculiar circumstances of the case.
The majority of the court, however, were of opinion that
the question of the validity of the Quebec License Act had
been settled by the judgments of the Judicial Committee
of the Privy Council. , Ritchie, C.J., expresses himself thus :

” In view of the cases determined by the Privy Council since
the case of Severn v. The Queen was decided in this court, which

(j) 11 S. C. E. 25. (m) 9 App. Gas 117.

(k) 17 S. C. E. 44. (M) 12 App. Gas. 575.

(1) 2 S. C. E, 70. (o) 16 6. C. E. 253.

THE B. N. A. ACT SEC. 91, S.-S. 2. 365

appear to me to have established conclusively that the right and
power to legislate in relation to the issue of licenses for the sale
of intoxicating liquors by wholesale and retail belong to the local
legislature, we are bound to hold that the Quebec License Act,
1878, and its amendments are valid and constitutional.”

Mr. Justice Gwynne expresses the view that Severn v.
The Queen is still an authority binding upon Canadian
courts, but rests his dissent from the view of the majority
upon the ground that upon a proper construction of the
Quebec License Act, it imposed no obligation upon a brewer,
manufacturing under Dominion license, to take out a pro-
vincial license.

A further distinction will be found noted in the cases
between the issue of a license to sell by retail and to sell by
wholesale. The point is practically covered by Molson v.
Lambe, but, as indicative of the difference of opinion which
may still honestly exist as to certain matters in connection
with the liquor traffic, we may refer to the case of Queen v.
McDougall (p), in which the Supreme Court of Nova
Scotia had to consider, the question of the validity of the
Nova Scotia Liquor License Act. The defendant was con-
victed of five separate offences, each dealing with a distinct
phase of the question. Three out of five judges intimated
their opinion that Severn v. The Queen (q), must be taken to
be overruled, and that a provincial legislature may not
merely regulate the retail traffic in intoxicating liquor, but/
may also pass laws in relation to wholesale licenses, andj
licenses for brewing and distilling. Mr. Justice Weatherbe,
however, expressed the view that the restriction, requiring a
petition from a certain number or proportion of the rate-
payers in order to obtain a license, was ultra vires; but, as we
shall see, this view cannot now be considered law. The Chief
Justice and Mr. Justice Ritchie considered Severn v. The
Queen to be still an authority binding upon them, and that
therefore the conviction of the defendant as a brewer and

(p) 20 N. S. R. 462. (q) 2 S. C. R 70.

/
/

‘#

366 THE B. N. A. ACT SEC. 91, S.-S. 2.

distiller must, upon the authority of that case, be quashed :
and the other convictions on the ground that the regulation
of the wholesale trade is ultra vires of a provincial legisla-
ture. Mr. Justice Ritchie intimated that although there is
a difficulty in drawing the line between wholesale and
retail, yet as the Act itself defined ” wholesale,” all restric-
tions as to the sales of the quantities so defined, are ultr
vires. The discussion of the authorities in that case is very
voluminous, but in view of the subsequent decision of the
Supreme Court of Canada in Danaher v. Peters (r), uphold-
ing the Liquor License Act of New Brunswick, it is
unnecessary to discuss this case further, beyond noting that
Mr. Justice Weatherbe refers to the Dominion License Act
of 1883, as being substantially identical as respects its
wholesale and retail clauses, with the Nova Scotia Act.
Referring to the judgment of the Judicial Committee of the
Privy Council, declaring the Dominion Act ultra vires, he
treats that decision as conclusive in favor of the validity of
a provincial Act.

In the two cases about to be noted, involving the ques-
tion of the validity of the New Brunswick Liquor License
Act, 1887, appeals were lodged by appellants who had been
applicants for each of these classes of licenses respectively.
Both appeals, however, were dismissed, thus upholding the
validity of provincial legislation upon both branches of the
traffic.

The question still remains, however, as we have said,
as to the power of a local legislature to prohibit absolutely
the sale of intoxicating liquors in the province. In the
cases to which we have just referred Danaher v. Peters,
and O’Regan v. Peters (s) it was contended that the New
Brunswick Liquor License Act of 1887, could be utilized as
a means for effecting prohibition. The Act -provides that
applications for licenses under the Act must be endorsed by
the certificate of “one-third of the rate-payers of the district

(r) 17 S. C. R. 44. (*) 17 S. C. B. 4i.

THE B. N. A. ACT SEC. 91, S.-S. 2. 367

in which the license is asked ; and it was urged, therefore,
that a majority of more than two-thirds could in any
locality within the province, effect complete prohibition.
As being the last deliverance of the Supreme Court upon
this question, we venture to quote somewhat fully from the
judgments. Mr. Justice Taschereau says :

” As to the constitutionality of the Act there can be no doubt.
This is not a statute to prohibit, it is a statute to regulate ; to
permit under certain conditions. If these conditions are not ful- 1
filled, it may be that the consequences are that the sale of liquor s
is virtually prohibited; but that consequence cannot render the \
Act unconstitutional.”

Mr. Justice Gwynne says :

” It was contended that, in effect, the Act operates as a total
prohibition of the sale of liquor in the City of St. John, and that

it was therefore ultra vires and void The argument

based upon this section” that is, the section requiring the cer-
tificate of one-third of the rate-payers ”was, that it shewed
clearly the intention of the legislature to be, that any number of
rate payers in a polling sub-division, exceeding two-thirds, should
have the power of totally prohibiting the sale of liquor, by refus-
ing to sign the certificates for applicants for licenses. Then it
was contended that section 31 authorizes the majority of the rate-
payers in a city or incorporated town, to prohibit the sale of
liquor by petitioning against the granting of licenses ; and for
those reasons it was contended that the Act was, in effect, an Act
for the total prohibition of the sale of liquor in the City of St.
John, and therefore ultra vires, and void ; but there is nothing inj
the language of the Act which would justify us in pronouncing
the intention of the legislature to have been to enact a prohibit
tion of the sale of liquors in a municipality, or in any part there-(
of, under color of passing an Ac.t on the subject of municipal
regulations relating to the sale of liquors, which is a subject
clearly within the jurisdiction of a local legislature. The objec-
tions which alone the Act authorizes to be urged by petition
against the granting of a license to a parjicj^r person, or for a
^arjicular house , enumerated in section 15, seem to be very
reasonable grounds of objection as affecting the person and place

368 THE B. N. A. ACT SEC. 91, S.-S. 2.

sought to be licensed, as regards the retail trade in liquors ; and
although these objections may seem to be unreasonable if applied
to a person or shop for which a license to sell liquors by whole-
sale is sought to be obtained, we cannot for that reason hold the
object of the legislature to have been to effect prohibition of the
trade of dealing in the sale of liquors, under color of an Act
establishing municipal regulations affecting that trade. . * .
Defects or imperfections in the Act, or provisions therein which
may be, or may appear to some to be, unreasonable, will not
justify us in pronouncing the true object of the Act to hare been pro-
hibition, total or partial, of the trade of dealing in the sale of
liquors, under pretence of establishing municipal regulations
upon that subject.”

Mr. Justice Patterson says :

” The power of the local legislatures to provide for the
issuing of licenses for the sale of spirituous liquors, either in
large or small quantities, to limit the number of licenses, and
to prohibit, under penalties, the sale of such liquors without
license, cannot now be treated as an open question. The con-
tention for the present appellants is, that the New Brunswick
Liquor License Act, 1887, while professing merely to deal with
the subject of licenses, contains provisions which, from their
inherent tendency or from the way in which they may be acted
on, give the measure the effect of a prohibitory law, either as to
the whole province and for all time, or as to particular localities
and particular calendar years. The larger question of the
power of the province to prohibit the sale of intoxicating liquors
within its own borders, is not presented for discussion, and we
have to deal only with questions which concede that total
prohibition can be decreed only by the Dominion parliament.

The objections are too fanciful and far-fetched

to be seriously discussed without denying to the local legislature
the right to prescribe the conditions on which licenses can be
obtained. They assume a right in every man to demand a
license, ignoring the right of the legislature to limit the
number.”

A perusal of these passages discloses that, in the opinion 1
I of the members of the Supreme Court, the question of the I
I power of a provincial legislature to enact a prohibitory law

THE B. N. A. ACT SEC. 91, S.-S. 2. 369

‘(for the province is still an open one. In the province of
Ontario, the*matter has been under the consideration of the
Court of Appeal for that province JT^Tfc Lnfa.1 Op^jn^ AH-,
(t). The case is complicated somewhat by the fact that in
that province at the time of Confederation there was in
existence a law which distinctly empowered municipal
bodies to pass by-laws for the total prohibition of the retail
liquor traffic within the municipality. These provisions had
never been repealed by provincial legislation, but, in sub-
sequent consolidations of provincial statutes, had been
omitted owing to the existence of somewhat similar clauses
as to local option in the Canajla/Tejiipej:^^
1878. The particular Act which came under the considera-
tion of the court was 53 Vic. c. 56. As explained by 54 Vic.
c. 46, s. 1, that enactment purported to be simply a revival
of the provisions which had existed in the laws in force in
the province prior to Confederation. It appears, however,
that these pre-Conf ederation provisions had been repealed
by Dominion legislation (u), so that it became necessary for
the court to determine which legislature, Dominion or pro-
vincial, had power to pass such an enactment. The case was
submitted for the consideration of the court under the pro-
visions of 53 Vic. c. 13 (Ont.) “An Act for expediting the
decision of constitutional and other provincial questions,”
and Mr. Justice Osier declined to give any opinion upon
the questions submitted. The other members of the court
Hagarty, C.J.O., Burton and Maclennan, JJ.A. upheld
the power of the provincial legislature to pass such ” local
option ” laws ; basing their judgment upon the view that
such legislation falls within sub-section 8 of section 92,
” municipal institutions in the province.” So far as Ontario
is concerned, therefore, it must be taken as settled that a
local legislature can empower a municipality to pass a pro-
hibitory by-law, so far, at all events, as relates to the retail
trade in intoxicating liquors, it being held tnat, upon a

(t) 18 O. A. R. 572. (u) See E. S. C. (1886), p. 2255.

CAN. CON. 24

370 THE B. N. A. ACT SEC. 91, S.-S. 2.

proper construction of the statutes in question, they do not
cover the wholesale trade. With regard to theconstruction
placed upon sub-section 8 of section 92, we shall have to
refer to this subject again in the notes to that sub-section.
J It is material, however, to note here that the decision of
A the Court of Appeal in no way affirms the right of a local
I legislature to pass a prohibitory law of general application
‘ throughout the province. In fact, Mr. Justice Burton,^
while intimating his own view that such power does exist,
expresses the opinion that the matter is concluded against
>the provinces by the judgment of the Privy Council in
j Russell v. The Queen (v), affirming the judgment of the
Supreme Court of Canada in Fredericton v. The Queen (w\
(in which the power to prohibit was distinctly classified as
\ coming under sub-section J. of section 91), without intimat-
ing any dissent from the view upon which that decision
was based. To the like effect, in Griffith v. Rioux (x), it
was held by Brooks, J., sitting in the Quebec Superior
Court, that a provincial legislature cannot repeal those
sections of the Dunkin Act which relate to the prohibition
of the sale of intoxicating liquors ; the matter of prohibition
being, in his opinion, covered by the decision of the Supreme
Court in Fredericton v. The Queen, as affirmed in Russell
v. The Queen. J –

The decision of the Court of Appeal for Ontario, in Re
Local Option Act (y), leaves the matter in this peculiar
position ; that, by united action on the part of the various
municipalities throughout the province, the total prohibi-
tion of the retail liquor traffic may possibly be effected^
but that a provincial legislature has no power to do directly
(what it may empower a municipality to do. In Hodge v
The Queen (z}, the Judicial Committee of the Privy Council
expressed the view that the power of a provincial legislature

(v) 1 App. Gas. 829; see ante, p. 358.

(w) 3 S. C. K. 505. {y) 18 O. A. R. 572.

(x) 3 Cart. 348. (z) 9 App. Gas. 117.

THE B. N. A. ACT SEC. 91, S.-S. 2. 371

to pass Acts in regulation of the traffic in particular com-
modities, exists under section 92, sub-section 8 ” municipal
institutions ” ; 15 ” the imposition of punishment by fine,
etc.” ; and 16 ” matters of a merely local or private nature
in the province.” Further than this general statement, the
judgment of that tribunal throws very little light upon the
subject we are now discussing. It does not indicate clearly
whether any one of these sub-sections alone supports the
power, or whether the combined force of all is required
to uphold such legislation. They speak of license regula-
tions’ as seeming to be matters of a merely local nature
in the province, and to be similar to, though not identical
in all respects with, the power that belongs to municipal
institutions under previously existing laws passed by the
local parliaments.

” Their Lordships consider that the powers intended to be
conferred by the Act in question, when properly understood,
are to make regulations in the nature of police or municipal
regulations, of a merely local character for the good government
of taverns, etc., licensed for the sale of liquors by retail, and
such as are calculated to preserve, in the municipality, peace
and public decency, and repress drunkenness and disorderly and
riotous conduct. As such they cannot be said to interfere with
the general regulation of trade and commerce which belongs to
the Dominion parliament.”

No attempt, it will be seen, is made to distinguish
between sub-sections 8 and 16, of section 92. There is
however the distinct expression of opinion that such
matters do not fall within this sub-section of section 91.

The conclusion appears to us unavoidable that if a local
legislature has power, under ” municipal institutions,” to-
authorize a municipal body pf its own creation to prohibit
the traffic in any commodity, the use or abuse of which may
tend to the disturbance of the peace of the community, or
to prejudicially affect its health or morals, the legislature
itself must necessarily have the ‘power to pass a general
law prohibiting the traffic in such commodity throughout

372 THE B. X. A. ACT SEC. 91, 8.-S. 2.

all the municipalities of the province. If the conclusion
be unsound the premises must go, and then we must fall
back upon some class enumerated in section 92, other than
” municipal institutions,” as supporting the power to regu-
late, to the extent of prohibition, the traffic in particular
commodities within a province. If regulation, conditionally
prohibitive, be not an infringement of the power of the
Dominion parliament to regulate trade and commerce,
as those words have been construed by the various judg-
ments, above cited, of the Judicial Committee of the Privy
Council, it seems difficult to appreciate how the absolute
prohibition of traffic in such commodities as above indicated
can be such infringement. It cannot be by reason of the
extent of interference with “trade and commerce” for a
” regulation ” of the traffic in one commodity may cause
greater interference than a total prohibition of the traffic
in several others. ^^

Turning now to the traffic in commodities other than
intoxicating liquor, no distinction in principle can be sug-
gested. The fact that the Dominion Inland Revenue and
Excise Acts utilize this latter traffic for purposes of taxation
cannot make any difference, as is now settled by the
principle of the decision of the Privy Council in Bank of
Toronto v. Lambe, applied e converso. This case will be
referred to more at length hereafter. We proceed now to
a short review of the cases dealing with the power of a
provincial legislature to legislate in relation to the traffic
in other commodities.

In a number of cases, regulations as to the carrying on
;Of certain classes of business in markets, have been held to
j be no infringement of the power of the Dominion parliament
j under this sub-section.

In Re Harris and Hamilton (a), the provision in the
Municipal Act of Ontario empowering Municipal Councils
to pass by-laws ” for preventing criers and vendors of small

(a) 44 U. C. Q. B. 641.

*

THE B. N. A. ACT SEC. 91, S.-S. 2. 373

ware from practising their calling in the market, public
streets and vacant lots adjacent thereto” was upheld as
intra vires by Mr. Justice Armour now Chief Justice of
the Q. B. D. ; and this decision represents the law as it has
ever since been recognized in that province.

In Angers v. Montreal (b) and Mallette v. Montreal (c},
an Act of the Quebec legislature, authorizing the imposition
of a license fee on butchers exercising their calling in places
other than the public markets of a municipality, was held
valid ; and in Ex parte Pillow (d) it was held that a pro-
vincial legislature may authorize municipal bodies to pass
by-laws in restraint of nuisances hurtful to public health.
The attack in this last case it should perhaps be remarked
was upon the ground that such legislation conflicts with
the power of the Dominion parliament over “criminal law”
rather than with the power to regulate trade and commerce,
but the general principle of the case is^e same as that in-
volved in the others.

The question has lately come before the Supreme Court
of Canada in Pigeon v. Recorder’s Court (e), and the opinion
of the court is contained in a sentence taken. from the judg-
ment of Mr. Justice Taschereau: “As to the constitutionality
of the sections . . there is no room for controversy.”

In Bennett v. Pharmaceutical Association (/), it was held \
by the Court of Queen’s Bench of Quebec, that the Quebec \
Pharmacy Act of 1875, requiring certain qualifications on
the part of persons engaged in the business of selling drugs
and medicines, was valid. Treating of this question, Chief
Justice Dorion says :

” In the present case there is no prohibition to sell drugs or
medicines in any part of the province of Quebec ; the provision
is merely that drags and medicines shall only be sold by persons
having the qualifications provided for by the Act.

(6) 24 L. C. Jur. 259 ; 2 Cart. 335.

(c) 24 L. C. Jur. 263; 2 Cart 340.

(d) 27 L. C. Jur. 216 ; 3 Cart. 357.

() 17 S. C. R. 495. (/) 1 Dor. 336 ; 2 Cart. 250.

374 THE B. N. A. ACT SEC. 91, S.-S. 2.

” It is true that incidentally this may be considered as interfer-
ing in some degree with the sale of drags and medicines in the
province of Quebec, since it limits the number of persons who
can do that business.”

In Beard v. Steele ((/), the provisions of the Mercantile
Amendment Act, as to the rights and liabilities of con-
signees and indorsees of bills-of-lading, were held to be
provisions as to property and civil rights in the province,
and therefore within the power of a provincial legislature.
They were held not to be regulations of commerce within
the meaning of this sub-section 2. In Regina v. Taylor (h),
Mr. Justice Wilson afterwards Chief Justice Sir Adam
Wilson gives more at length the considerations which had
induced the court to uphold these provisions on the ground
mentioned :

” It did not seem to me, at the time, to be a regulation of
trade, and it does not seem’to me to be so now. It does however
[affect trade and commerce. But what enactment will not, in
I some way or other, affect it ? If an Act were passed requiring
every person who instituted a suit to give security for costs, or
; still further limiting the time within which to bring an action,
.or enacting that no execution should be issued on a judgment
until a demand was first made of the sum recovered on the
person liable to pay it, or giving to the holder of a bill of ex-
change, or promissory note, a lien for the amount due upon it
on the goods of the acceptor or maker, all these provisions, and
many other cases which might be put, would very much affect
trade and commerce, but could they be said to be a reyulation of
it? I certainly think they could not. They would do so only
incidentally ; but not more so in principle than by shutting up a
trader in gaol for debt or for contempt of court, or by closing all
shops at eight o’clock at night, or by the exercise of mere police
powers, or by giving a public holiday. All these are lawful
objects, and if they can be properly adopted they do not become
unlawful, because they cannot be wholly separated from every
other matter, and because they are attended with inevitable
.consequences. I think the provincial legislature have the power

to) 34 U. C. Q. B. 43. (h) 36 U. C. Q. B. 212.

THE B. N. A. ACT SEC. 91, S.-S. 2. 375

to annex the right of contract to the right of property in the
goods mentioned in a bill of lading although it does affect
trade and commerce.”

It should be noted, perhaps, that in the same judgment
the view is expressed that the Dominion parliament would
have power to pass a similar law, if it did so ” as a neces-
sary and convenient matter to be dealt with in the regula-
tion of trade and commerce.” This question of concurrent’,
power, however, has been already touched upon (i) and we
need not discuss this point of the case further here”.

The principles enunciated in the above cases e.g., Ex
parte Pillow, Bennett v. Pharmaceutical Association, and
Beard v. Steele support the validity of provincial Acts\
such as the Employers Liability Acts and Factory Acts,/
which, no doubt, in a sense affect trade and commerce, but \
which in their intended scope relate to the civil rights of I
employers and employees (j) to matters of a merely local
or private nature in the province and cannot be deemed
regulations of general trade and commerce within the mean- /
ing of this sub-section as defined in the deliverances of the /
Privy Council.

The latest authoritative deliverance as to the meaning
to be attached to this sub-section, is to be found in Bank of
Toronto^ JLambe (&), in which it was urged that the power
of the Dominion parliament to regulate trade and commerce
operates to prevent a provincial legislature from levying ,
taxes upon a bank. The Judicial Committee of the Privy
Council negatived this contention in the following language:

” The words regulation of trade and commerce are indeed very
wide, and in Seiwris Case (I), it was the view of the Supreme
Court that they operated to invalidate the license duty which
was there in question. But, since that case was decided, the

(i) Chapter X. ante, p. 214, et seq.

(j) See Monkhouse v. G. T. R., 8 O. A. R. 637, and Can. Southern Ry.
v. Jackson, 17 S. C. R. 316, both noted under sub-section 10 of section 92,
post.

(A-) 12 App. Cas. 575. (I) Severn v. Reg., 2 S. C. R. 70.

376 THE B. N. A. ACT SEC. 91, S.-S. 3, 4.

question has been more completely sifted before the Committee,
in Parson’s Case (m) and it was found absolutely necessary that
the literal meaning of the words should be restricted in order to
afford scope for powers which are given exclusively to the pro-
vincial legislatures. It was there thrown out that the power of
regulation given to the parliament meant some general or inter-
provincial regulations. No further attempt to define the subject
need now be made, because their Lordships are clear that if they
were to hold that this power of regulation prohibited any pro-
vincial taxation on the persons or things regulated, so far from
restricting the expressions, as was found necessary in Parson 1 *
Case, they would be straining them to their widest conceivable
extent.”

3. The raising of money by any mode
or system of taxation.

4. The borrowing of money on the
public credit.

Compare with this sub-section 3, sub-section 2 of section
92 which assigns to provincial legislatures the exclusive
power to make laws relating to ” direct taxation within the
province.” In Bank of Toronto v. Lambe (n), it is said by
the Judicial Committee of the Privy Council, commenting
upon this provincial power\that the above sub-section 3

” * ‘ * certainly is in literal conflict with it. It is
impossible to give exclusively to the Dominion the whole subject
of raising money by any mode of taxation, and at the same time 1
to give to the provincial legislature exclusively or at all, the I
power of direct taxation for provincial or any other purpose./
This very conflict between the two sections was noticed by way of
illustration in the case of Parsons. Their Lordships there said,
‘ So, the raising of money by any mode or system of taxation is
enumerated among the classes of subjects in section 91 ; but
though the description is sufficiently large and general to include
direct taxation within the province in order to the raising of a

(m) Citizens v. Parsons, 7 App. Cas. 96.
(n) 12 App. Cas. 575.

THE B. N. A. ACT SEC. 91, S.-S. 5. 377

revenue for provincial purposes, assigned to the provincial legis-
latures by section 92, it obviously could not have been intended
that, in this instance also, the general power should override the
particular power.’ Their Lordships adhere to that view, and
hold that as regards direct taxation within the province to raise
revenue for provincial Durposes, that subject falls wholly within
the jurisdiction of the provincial legislatures.”

Mutatis mutandis, the views expressed in the above
extract apply to a comparison of the above sub-section 4
with sub-section 3 of section 92 “the borrowing of money
on the sole credit of the province.”

Conceding the entire correctness of the view of the
Judicial Committee, this further view deserves considera-
tion, namely, that these apparently over-lapping powers do
not in fact conflict at all that the power of either govern-
ment in this connection is limited to raising money fpr>
purposes connected with its sphere of authority ; the choice
of method allowed to the Dominion government being of
the widest possible character ; that of the provincial gov- ;
ernments being limited to direct taxation within the
province, because, as it is put in this very case, the power
of indirect taxation would be felt all over the Dominion.
Perhaps this should not be advanced as a further view ; it
probably represents what was in the mind of the Commit-
tee in using the expression ” obviously.”

Under these sub-sections have been passed our various
Acts relating to Customs and Excise duties see K. S. C.
c. 32, 33 and 34; and Acts in relation to Finance see
R. S. C. c. 28 and 29. Note also chapter II., ante, p. 35,
et seq., for an account of the practical surrender to colonial
legislatures of full control over their own revenites and
tariffs.

See also the cases collected under section 92, sub-section
2, post,

5. Postal service.

378 THE B. N. A. ACT SEC. 91, S.-S. 6, 7.

6. The Census and Statistics.

We have not found any expression of judicial opinion
as to the scope of this sub-section 6, al tlio uglr>rfl”umber of
questions suggest themselves. It must be construed so as
to exclude provincial legislation upon whatever matters are
properly included in it : and ‘ it seems to us that any con-
struction other than ” the Census, and Statistics in relation
thereto” would land us in difficulties. So construed, it has
reference to the census required to be taken every ten years
by section 8 of the B. N. A. Act, and to the compilation of
statistics in reference to nationality and creed, the increase
or decrease of population, and kindred matters. In the
Quebec Resolutions the words ” and statistics ” do not
appear. No wider interpretation is needed to enable the
Dominion parliament to institute enquiries and compile
statistics as to any matters upon which information is
desired in order to intelligent legislation upon the various
subjects committed to its legislative care. Acts authorizing
such proceedings would be laws ” relating to ” such subjects.
Any wider interpretation would have the absurd effect of
condemning provincial legislatures to legislate in the dark
upon many very important matters.

7. Militia, Military and Naval Service,
and Defence.

See notes to section 15, ante, p. 259. This is perhaps
the matter in which, above all others, the Imperial authori-
ties continue to exercise supervision over colonial legisla-
tion, and in respect to which, also, the British parliament
passes Acts of express colonial application. The Coni-
inander-in-Chief of the Canadian forces is appointed by the
Imperial authorities. At the same time, the laws relating
to the volunteer forces of Canada are largely of Canadian
enactment, but, as we have said, they are very carefully
scrutinized by the Imperial authorities; the idea being

THE B. N. A. ACT SEC. 91, S.-S. 7. 379

to have a uniform system of defence throughout thel
Empire.

In Holmes v. Temple (o) v it was held (in Quebec) that
^the provisions of the Imperial “Army Act, 1881,” do not
apply to Canada, so as to make persons not connected with
the active Militia of the Dominion liable in respect of acts
which are offences under the Imperial Act but not under
the Militia Act of Canada. The whole subject of Imperial
defence is of such a complicated nature, and so many of the
provisions of Imperial Acts are in force in all portions of
the Empire, that it is not thought desirable to discuss the
matter at any length here (p). We simply note the only
case which has been decided in Canada since Confederation
(q) in reference to the subject, and in reference to this case
it should be remarked that, apparently, Mr. Justice Chauv-
eau held the view that the legislative authority of the
Dominion parliament under this sub-section is ” exclusive ”
as between that parliament and the parliament of the
United Kingdom a view which cannot of course be main-
tained. He treats the English Army Act of 1881 as appli-
cable in Canada only to the extent to which it is expressly
made so by the Canadian Militia Act (31 Vic. c. 40). The
proper position is clearly this : so far as Imperial legislation
upon this subject is, within the meaning of the Colonial
Laws Validity Act, 1865, made applicable to the colonies
generally, or to Canada in particular, any Canadian legis-
lation repugnant thereto, in whole or in part, must be held
to be void and inoperative to the extent of such repug-
nancy, but not otherwise that is to say, in so far as]
Canadian legislation is- supplementary to and not inconsis-i
tent with Imperial legislation upon the subject, this sub-1
section 7 distinctly affirms the authority of the Dominion \
parliament, as distinguished, from provincial assemblies, to
pass such legislation.

(o) 8 Q. L. K. 351 ; 2 Cart. 396.

(p) See Todd ” Parl. Govt. Brit. Col.” 274, et seq.

(q} See Reg. v. Schram, 14 U C. C. P. 318 (1864), noted ante, p. 65.

3cSO THE B. X. A. ACT SEC. 91, S.-S. 8.

8. The fixing of and providing for the
salaries and allowances of civil and other
officers of the Government of Canada.

Compare section 92, sub-section 4.

In Evans v. Hudon (r), in the Superior Court of Quebec,
it was held that a provincial legislature has no power to
declare liable to seizure the salaries of employees of the
Federal government, the exemption of such salaries being
” a matter of public order.”

Much the same question came before the courts in
Ontario in the case of Leprohon v. Ottawa (s), in which it
was held by the Court of Appeal, reversing the decision of
the Court of Queen’s Bench, that provincial powers of tax-
ation do not extend over the salaries of the executive staff’
of the Dominion. The decision is based, not so much 011
the limited effect of sub-section 2 of section 92, as upon the
broader ground that j the provincial legislature has no power
to impose a burden upon any of the instruments by which
the Dominion government is carried on, and cannot invest
a municipal corporation of its own creation with a power
which it cannot itself directly exercise. The arguments in
support of the contrary view will be found in the opinions
delivered in support of the judgment of the Court of
Queen’s Bench. The question has never been further
litigated. This case is noteworthy for the free use, made
by the judges, of the decisions of the Supreme Court of the
United States upon similar questions which have arisen
there. The whole matter is one of much interest as indi-
cative of the distinct separation oLthe governmental organ-
ization of the Dominion and of the provinces respectively,
and of their mutual independence.

So far as the Dominion government is concerned, the
severance of the tie of territorial connection with one pro-
vince and the creation of a distinct, exclusively federal,
territory as the seat of the Dominion government, would,

(r) 22 L. C. Jur. 268 ; 2 Cart. 346. (s) 2 0. A. R. 522.

THE B. N. A. ACT SEC. 91, S.-S. 9-11. 381

to some extent, do away with this difficulty. As the law
now stands, in, at least, Ontario and Quebec, federal officials
are exempt from provincial burdens, while for provincial
officers there is no escape from the burden of federal tariffs.
As dealing with a somewhat kindred topic, see the
notes to section 125. post.

9. Beacons, Buoys, Lighthouses, and
Sable Island.

10. Navigation and Shipping (i).

11. Quarantine and the establishment
and maintenance of Marine Hospitals.

(i) ”Navigation and Shipping!’ This is one of those \
subjects in respect of which colonial legislative power is
limited by reason of the existence of Imperial legislation i
upon the subject applicable to, and in force in, the different (
colonies of the Empire. It is beyond the scope of this
work to attempt any treatment of this large branch of
English jurisprudence ; we must simply note the line ofj
division between the Dominion parliament and the provin-j
cial legislature in respect of the various matters which
may appear in some aspects to fall within this sub-section,
and, in other aspects, within some one or more of the
various sub-sections of section 92.

The line of argument which led the Judicial Committee
of the Privy Council in Citizens _v._Pfl.rsnn a (), to limit sub-
section 2, ” the regulation of trade and commerce,” to regu- !
lations relating to general trade and commerce, would \
appear to be equally applicable to limit this sub-section 10.
See sub-sections 9, 11, and 13, all of which would be un-
necessary if the wider meaning were intended to be given
to this sub- section 10. See also section 92, sub-section 10,
and section 108, and the various cases there noted.

(t) 7 App. Gas. 96.

382 THE B. N. A. ACT SEC. 91, S.-S. 9-11.

In MacMillan v. The South- West Boom Company ( u), it
was held by the Supreme Court of New Brunswick that a
provincial enactment (37 Vic. c. 107) authorizing the erec-
tion of booms in a navigable river, does not conflict with
the power of the parliament of Canada with respect to
” navigation and shipping ” ; those words being used in the
sense in which they are used in the several Acts of the
Imperial parliament, relating to navigation and shipping,
in the Act of the Dominion parliament, 31 Vic. c. 58,

! namely, as giving the right to prescribe rules and regula-
tions for vessels navigating the waters of the Dominion,
and not excluding, for all purposes, provincial jurisdiction
over navigable waters. Allan, C. J., says :

” A local legislature, therefore, clearly, has a right to incor-
porate a Boom Company, where its objects, as in this case, are
entirely provincial, and the erection of the booms, piers, etc.,
necessary for giving effect to such Act of incorporation, are
undoubtedly local works, necessary and useful only for this
lumbering business in one section of the province the river
Miramichi. The Acts then are entirely within the powers given
to the provincial legislature unless the construction of the word,
“navigation,” is as has been contended for the plaintiff’s
counsel ; for, in that case, the general power over local works
and undertakings must yield to the particular power given to
the Dominion parliament over the subject matter of navigation.
But I think that it is not the proper construction of the term,
and therefore the Acts in question are not ultra riirx.”

It was held in McDougall v. Union Navigation Co. (v\
that the power to incorporate navigation companies, the
operations of which are limited to a particular province,
belongs exclusively to the legislature of such province.

In Normand v. St. Lawrence Navigation Co. (w), the
grant, by the province of Quebec, of a water lot extending

(it) 1 Pug. & Burb. 715 ; 2 Cart. 542. Such an enactment however
cannot authorize any obtruction to navigation. See post,
(v) 21 L. C. Jur. 63 ; 2 Cart. 223.
(u-) 5 Q. L. K. 215 ; 2 Cart. 231.

THE B. -N. A. ACT SEC. 91, S.-S. 9-11. 383

into deep water at the mouth of the River St. Maurice was
held to be valid, subject to the implied restriction that the
grantee should not use his powers in such a way as to
interfere with the requirements of navigation.

In Queddy River Driving Boom Co. v. Davidson (xtf
it was held by the Supreme Court of Canada affirming the;
judgment of the Supreme Court of New Brunswick, that a;
provincial legislature cannot authorize such an obstruction;
of a navigable stream as would create a public nuisance^
In that case there was no Dominion legislation upon the
subject to alter the law as it existed in New Brunswick at
the date of the Union, and the true effect of the decision
would seem to be contained in an observation of Mr.
Justice Strong :

” The Queddy river is shown to be a navigable tidal river,
and the appellants have obstructed the navigation and thus
committed an act which is prima facie a public nuisance, and
which the respondent shows to be especially injurious to him
as a riparian proprietor. The respondent was therefore entitled
to an injunction to restrain the continuance of the obstruction,
unless the appellants were able to show some legal justification
for the interference with the navigation of the river caused by
the construction and maintenance of these booms ; they, how
ever, show nothing but an Act of the provincial legislature
of New Brunswick.”

Following Bank of Torontqjf… Lambe (y), the Supreme
Court of Canada has held in Longueuil Navigation Co. v.
Montreal (z), that a provincial legislature can impose direct
taxation e.g., a fixed annual tax of $200.00 upon ferry
men and ferry companies. Ferries plying entirely within one
province would, in any case, fall ‘within sub-section 10 of
section 92, although no doubt they would have to conform
to the provisions of any Act respecting ” navigation and
shipping ” passed by the Dominion parliament within the
proper scope of this sub-section.

(x) 10 S. C. R. 222 ; see notes to section 129, post, and also ante,
p. 200.

(y) 12 App. Cas. 575. (z) 15 S. C. R. 566.

384 THE B. X. A. ACT SEC. 91, S.-S. 12.

In Central Vermont Railway Co. v. St. John (a), the
Supreme Court of Canada treated as almost beneath notice
the contention that the boundaries of a municipality can
not be extended by provincial legislation so as to include
therein part of a navigable river.

“If it is beyond controversy that navigable rivers are for
?//y/o.sr.s of nariijtition under the control of the parliament of
Canada, it is not less clearly established that the provinces have,
upon these same rivers, the right to exercise all municipal and
police powers, so loDg as their legislation creates no hindrance to
navigation.” Per Fournier, J., at p. 297.

In ” The Picton ” (b), it was held by the Supreme
Court of Canada that, under section 101 (see post) and this
sub-section 10, the Dominion government was within its
powers in creating the Maritime Court of Ontario, having
jurisdiction over certain matters relating to navigation and
shipping.

In the case of ” The Farewell ” (c), before the Vice-
Admiralty Court of Quebec, it was held by Stuart, J., that
the Dominion parliament can confer upon Vice- Admiralty
Courts existing in Canada under Imperial legislation, juris-
diction in any matter relating to navigation and shipping
within the territorial limits of the Dominion, and that any
such Act is to be given full effect so far as its provisions
are not repugnant to Imperial legislation (<!.). Compare the cases which have arisen under this sub- section with those under sub-section 12 ; and see also note (xi) to the opening clause of section 91, ante, p. 350. 12. Sea coast and inland Fisheries. Xote the curious error into which Lord Chancellor Sel- borne fell, in L’Union St. Jacques v. Belisle (e), in not apply – (a) 14 S. C. E. 288. (b) 4 S. C. K. 648. (c) 1 Q. L. K. 380 ; 2 Cart. 378. (d) See Chapter XI. ante, p. 230 ; also Todd, ” Parl. Govt. Brit. Col.,” p. 149, et seq. (e) L. R. 6 P. C. 31. THE B. N. A. ACT SEC. 91, S.-S. 12. 385 ing the word ” fisheries ” to ” sea coast.” He speaks of the whole of the sea coast being put within the exclusive cog- nizance of the Dominion legislature. See notes to section 108, and cases there cited. The different views that may be taken of the scope of the various sub-sections of sections 91 and 92 are nowhere -better illustrated than in the litigation (/) which arose out of the grant of a lease of a salmon fishery by the Minister of Marine and Fisheries under authority of a Dominion Act. The locus in quo included part of the Miramichi river, in New Brunswick, above the ebb and flow of the tide, and the lease in question purported to give an exclusive right to fish in that part of the river, regardless of the rights of the riparian proprietor. After much litigation, the inva- lidity of the lease, and of the clause of the Dominion Act under which it was made, was finally declared by the Su- preme Court of Canada. On the subject of the rights of riparian proprietors generally, the opinions expressed by the different judges are interesting and instructive ; but, confining our attention to the constitutional point involved, the Supreme Court held that the scope of this sub-section 12 is properly limited to J. 1 t/ . -w \ “subjects affecting the fisheries generally, /tending to their regu- lation, protection, and preservation, matters of a national and general concern and important to the public, such as the forbid- ding fish to be taken at improper seasons in an improper manner, j or with destructive instruments, laws with reference to the im- 1 provement and the increase of the fisheries ; in other words, all such general laws as enure as well to the benefit of the owners : of the fisheries as to the public at large, who are interested in the fisheries as a source of national or provincial wealth ; ” that the Dominion parliament could not interfere with l the rights of property (with all its incidents) vested in the riparian proprietors whether the province, or individual owners further than laws within the above limits might {/) Terminating in The Queen v. Robertson, 6 S, C. R, 52. CAN. CON. 25 386 THE B. N. A. ACT SEC. 91, S.-S. 13-15. curtail their exercise; and that, having no power to inter- fere directly, the Dominion parliament could not authorize others to interfere with those rights. Such legislation would be confiscation, not regulation. 13. Ferries between a Province and any British or Foreign country or between two provinces. Such undertakings, as being of extra-provincial opera- tion, fall naturally into the classes of matters confided to the parliament of Canada. We need not, however, discuss the sub-section at length here, as the whole subject will come up for consideration under sub-section 10 of section 92. 14. Currency and Coinage. See R. S. C. (1886) c. 30, which contains our legislation upon this subject. In Lynch v. Canada N. W. Land Co. ((/), Patterson, J. refers to this and the six following classes as relating ” to the regulation of the general com- mercial and financial system of the country at large. 15. Banking, incorporation of banks, and the issue of paper money. The scope of this sub-section has been under considera- tion by the Judicial Committee of the Privy Council in Bank of Toronto \\ Lainl >e (/> ). It was there “earnestly contended”
that this sub-section operates to prevent a province from
levying direct taxation (under section 92, sub-section 2)
upon a bank: but this view was negatived:

” Their Lordships think that this contention gives far too
wide an extent to the classes in question ; they cannot see how
the power of making banks contribute to the public objects of the
province where they carry on business can interfere at all with

(.’/) 19 S. C. R. 204; see notes to s-s. 19, p<>*t.

(h) 12 App. Cas. 575; see Chapter X., ant?, p. 213.

THE B. N. A. ACT SEC. 91, S.-S. 15.

387

the power of making laws on the subject of banking, or with the

power of incorporating banks Then it is suggested;

that the legislature may lay on taxes so heavy as to crush a bank ‘
out of existence, and so to nullify the power of parliament to/
erect banks. But their Lordships cannot conceive that when’
the Imperial parliament conferred wide powers of local self-i
government on great countries such as Quebec, it intended to I
limit them on the speculation that they would be used in an in-y
jurious manner. People who are trusted with the great power
of making laws for property and civil rights may well be trusted
to levy taxes. There are obvious reasons for confining their
powers to direct taxes and licenses, because the power of indirect
taxation would be felt all over the Dominion ; but whatever
power falls within the meaning of class 2 is, in their Lordships’
judgment, wlrat the Imperial parliament intended to give ; and
to place a limit on it, because the power may be used unwisely,
as all powers may, would be an error and would lead to insuper-
able difficulties in the construction of the Federation Act.”

The provisions of the Dominion Banking Act (34 Vic.
c. 5 ; R. S. C. c. 120), empowering banks to hold warehouse
receipts as collateral security for the re-payment of monies
advanced to the holders of such receipts, was held to be
intra vires, and no interference with ” property and civil
rights ” further than the fair requirements of a banking
Act would warrant Merchants Bank v. Smith (i) ; with
which compare Beard v. Steele (j), cited in the notes to sub-
section 2, ante, p. 374.

In Windsor v. Commercial Bank (k), it was held in New
Brunswick that a provincial legislature has authority to-
enact a law to impose a tax on the Dominion notes held by
a bank, as portion of its cash reserve, under the Dominion
Act relating to banks and banking. The correctness of this
decision would seem to be settled by the judgment of the
Judicial Committee of the . Privy Council in Bank of
Toronto v. Lambe.

(0 8 S C. R. 512.

(;) 34 U. C. Q. B. 43.

(Ic) 3 Cart, 377 ; 3 Rnss. & Geld. 420.

388 THE B. N. A. ACT SEC. 91, S.-S. 16-20.

Regina v. County of Wellington (I), exhibits the differ-
ence in view which is still possible as to the scope of this
sub-section, the Court of Appeal for Ontario being equally
divided in opinion on the constitutional point involved
the validity of a Dominion Act providing for certain
matters in connection with the winding up of the defunct
Bank of Upper Canada. The facts are sufficiently set forth
in note (xi), ante, p. 354, and see also notes to section 92,
sub-section 13. In the Supreme Court, Chief Justice
Ritchie was alone in upholding the legislation under this
sub-section.

16. Savings’ Banks.

17. Weights and Measures.

18. Bills of Exchange and Promissory

Notes (i).

19. Interest (ii).

20. Legal tender.

(i) ” Bills of exchange and promissory notes!’ This
sub-section is very frequently noted as limiting the other-
wise wide scope of sub-section 13 of section 92 ” property
and civil rights in the province.” The law upon this sub-
ject has recently been codified. See 53 Vic. c. 33.

(ii) “. Interest” In Ross v. Torrance (m), it was held
that a provincial legislature has no power to authorize a
municipal corporation to charge a percentage increase on
over-due taxes, the so-called increase being but another
name for interest. The same question came before the
courts of Manitoba in the case of Schultz v. Winnipeg (n),
where a similar provincial Act was also held invalid. It is
difficult, however, to agree with these decisions, as there is

(I) 17 O. A. R. 421; and in Sup.JCt. (sub worn. Quirt v. Beg.) 19
S.C. E. 510.

(m) 2 Cart. 352; 2 Legal News, 186. (n) 6 Man. L. R. 35

THE B. N. A. ACT SEC. 91, S.-S. 19. 389

no necessary connection between interest and percentage,
and the power to impose a penalty (by whatever name it
may be called) to enforce prompt payment of municipal
taxes would seem to be clearly within the power of the
provincial legislature under section 92, sub-section 15.

See Royal Canadian Insurance Co. v. Montreal Ware-
housing Co. (o), in which it ‘was held that a provincial
legislature may give a local corporation authority to borrow
money at any rate of interest already legalized as to other
persons who have the right to borrow. Having reference
to the views of the Privy Council as expressed in Citizens
v. Parsons (p), it is submitted that this sub-section is hm- \
ited to the regulation of the legal rate of interest through- /
out the Dominion in the absence of special contract, or to the
passing of what are known as usury laws, in case, in the
general interests of the Dominion, it is deemed advisable
to put such laws .upon the statute book. The question,
however, is one of some difficulty. Dominion legislation
upon the question is contained in R. S. C. c. 127.

Since the above was written, the report of the judgment
of the Supreme Court of ^nR^TrtfTl^^h y Thf” Cnnnrln
Kiir^lv^^strdEsrmt^Co. (q) has appearecfT^’I’h^’alses above !
noted are distinctly overruled and local legislation in
reference to the imposition of an additional percentage on
over-due taxes held not to fall within the scope of this sub-
section.

In reference to the general scope of the section Chief
Justice Ritchie says’:

” It is obvious that the matter of interest which was intended
to be dealt with by the Dominion parliament was in connection
with debts originating in contract, and that it was never intended
in any way to conflict with the right of the local legislature to
deal with municipal institutions in the matter of assessments or
taxation, either in the manner or extent to which the local legis-

(o) 2 Cart. 361 ; 3 Legal News, loo. (p) 1 App.Cas. 96.

(q) 19 S. C. R. 204.

390 THE B. N. A. ACT SEC. 91, S.-S. 19.

lature should authorize such assessments to be made ; but the
intention was to prevent individuals under certain circumstances
from contracting for more than a certain rate of interest and fix-
ing a certain rate when interest was payable by law without a rate
having been named.”

Following a number of American authorities, quoted in
the judgment, the Chief Justice points out that municipal
taxes are not, per se, debts or contractual obligations, and
then proceeds :

” Does not the collocation of No. 19 with the classes of sub-
jects as numbered 18 and 20 afford a strong indication that the
interest referred to was connected in the mind of the legislature
with regulations as to the rate of interest in mercantile transac-
tions and other dealings and contracts between individuals, and
not with taxation under municipal institutions and matters
incident thereto ? The present case does not deal directly or
indirectly with matters of contract. The Dominion Act expressly
deals with interest on contracts and agreements as the first sec-
tion conclusively shows.”

Referring to the rule that the true nature and character
of the legislation in the particular instance under discussion
must be considered (r), he points out that the Act there in
controversy had for its ” primary matter ” municipal taxa-
tion and not ” interest.” It will be seen that the Chief
Justice founds the jurisdiction of a provincial legislature to
pass the Act in question upon section 92, sub-section 8. He
speaks of municipal matters as ” necessarily” embracing the
levying of taxes for municipal purposes. We shall have to
refer to this again when dealing with that sub-section.
Here we have to note that the Chief Justice clearly points
out that the percentage increase is in reality an extra tax
and not ” interest.” Mr. Justice Taschereau characterizes
the addition as a ” penalty,” and Mr. Justice Patterson
says:

” We find that article associated with others numbered from
14 to 21, all of which relate to the regulation of the general com-

(?) See ante, p. 212.

THE B. N. A. ACT SEC. 91, S.-S. 21. 391

mercial and financial system of the country at large

We must see what the thing really is. It is clearly something
which the Manitoba tax-payer who does not pay his taxes when
due is made liable to pay as an addition to the amount originally
assessed against him or his property. It is a direct tax within
the province in order to raise a revenue for provincial purposes,
and as such is indisputably within the legislative authority of

the province

” The imposition may, not improperly, be regarded as a
i penalty for enforcing the law relative to municipal taxation, and
in that character it comes directly under article 15 of section 92.”
The question whether such an imposition can in any
sense be properly called interest is referred to and it is
pointed out that under the impugned Act the addition is of
an arbitrary percentage not accruing de die in diem ; but,
without expressing a decisive opinion upon this point, the
opinion of the court, Mr. Justice Gwynne dissenting, was,
that such an imposition does not, at all events, fall within
the scope of this sub-section 19. ^(

*

21. Bankruptcy and Insolvency.

The extent to which the Dominion parliament, by legis-
lation under this sub-section, is empowered to interfere with
” property and civil rights in the province,” or with ” pro-
cedure ” in the courts of a province, came up for considera-
tion before the Judicial Committee of the Privy Council,
in the case of Gushing v.JDupuy (s), and was disposed of in
the judgment of that tribunal in these words :

” It was contended for the appellant that the provisions of
the Insolvency Act interfered t with property and civil rights, and
was therefore ultra vires. This objection was very faintly urged,
but it was strongly contended that the parliament of Canada
could not take away the right of appeal to the Queen from final
judgments of the Court of Queen’s Bench, which, it was said,
was part of the procedure in civil matters exclusively assigned to
the legislature of the province. The answer to these objections

(*) 5 App. Cas. 409.

392 THE B. N. A. ACT SEC. 91, S.-S. 21.

is obvious. It would be impossible to advance a step in the
construction of a scheme for 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, realiza-
tion, and distribution of the estate, and the settlement of the
liabilities of the insolvent. Procedure must necessarily form an
essential part of any law dealing with insolvency, It is there-
fore to be presumed, indeed it is a necessary implication, that; the
Imperial statute, in assigning to the Dominion parliament the
subjects of bankruptcy and insolvency, intended to confer on it 1
legislative power to interfere with property, civil rights, and pro-
L -i cedure within the provinces, .so far an u f/cneral 1mr ;v///f/w// to
those subjects uiit/ht ((feet them.”

The words italicised are important as indicating the view
of the Committee as to the scope of the sub-section, as
authorizing, namely, a general insolvency or bankruptcy law.
There is now no such law in existence in Canada, and the
power of a provincial legislature, in the absence of Dominion
legislation, to pass laws for the equitable distribution of the
estate of a man whose assets are insufficient to meet his
liabilities, has necessarily arisen, and with this question has
also arisen the larger one as to the existence of ” concur-
rent ” powers of legislation in the Dominion parliament
and provincial legislatures; as to which see chapter X., ante,
p. 216, and note (xi) to section 91, ante, p. 350. Quirt v.
Reg. (t), in which a Hpec’tvl Act in reference to the winding
up of the affairs of a particular bank was upheld by the
Supreme Court of Canada as within the scope of this sub-
section, is sufficiently referred to in the note last mentioned.

The Privy Council had had occasion to consider this
sub-section in an earlier case L’Union St. Jaccji;
Belisle (u) which came before them in 1874. The so pe >f
the sub-section is clearly indicated in the judgment, where,
speaking of the various sub-sections of section 91, and of

(0 19 S. C. R. 510. (n) L. K. 6 P. C. 31.

THE B. N. A. ACT SEC. 91, S.-S. 21. 393

this sub-section in particular, the following language
occurs :

” There is no indication in any instance of anything being
contemplated, except what may be properly described as general
legislation ; such legislation as is well expressed by Mr. Justice
Caron when he speaks of the general laws governing Faillite,
bankruptcy and insolvency, all which are well known legal terms
expressing systems of legislation with which the subjects of this
country, and probably of most other civilized countries, are per-
fectly familiar. The words describe in their known legal sense*
provisions made by law for the administration of the estates of\
persons who may become bankrupt or insolvent, according to ntlat
and definitions prescribed by law, including of course the conditions
on which that law is to be brought into operation, the manner
in which it is to be brought into operation, and the effect of its
operation.”

The latter part of this extract supports what has been
said in an earlier chapter (v) in reference to bankruptcy
and insolvency being legal relations, the creation of which
‘out of any given combination of circumstances, is alone in
the power of the Dominion parliament. In the absence of
any such legislation, it is difficult in view of the scope at-
tributed to sub-section 13 of section 92 (10), ” property and
civil rights in the province ” to see 011 what ground pro-
vincial legislation, making provision for the distribution of
a man’s estate among his creditors, and fr hig discharge
from liability upon his contractual obligations, can be im-
pugned. In view, however, of the difference of opinion
among the judges who have had to consider this question >
this view, we need hardly say, is put forward with much
diffidence.

In Crombie v. Jackson (x\ that was held to be a valid
provision, in the Insolvent Act in force at that date (1874),
which obliged a person, making claiftn to any part of the
property of an insolvent transferred to the possession of his

. (v) See ante, p. 215. (?p) See the notes to that sub-section.

(.r) 34 U. C. Q. B. 57-“.

394 THE B. N. A. ACT SEC. 91, S.-S. 21.

assignee under the Act, to proceed, under the Act, by sum-
mary proceedings before a county judge. In our view,
these cases involving enquiry as to the validity of indi-
vidual sections of former Insovent Acts are not of much
practical importance ; they would assist of course in the
framing of a new Act ; but the important cases are those in
which provincial Acts or clauses of provincial Acts have
been impugned on the ground that their provisions are in
the nature of insolvency legislation. At the same time, in
the face of the divergence of view which exists upon the
subject, we should hardly be justified in overlooking the
former class of cases.

In Peak v. Shields (y\ was involved the question of the
validity of the 136th section of the Insolvent Act of 1875,
which provided that a debtor, afterwards becoming an in-
solvent under the Act, who had fraudulently obtained goods
on credit knowing himself unable to meet his engagements,
might be subjected to imprisonment for two years unless
the debt and costs were sooner paid. The opinions delivered
were very conflicting, some of the judges expressing the
view that the clause was legislation regarding procedure in
civil matters, others that it was properly described as in-
solvency legislation, and others again that it might be up-
held as criminal legislation. The broader question involved
in the case, namely, the power of a colonial legislature to
legislate respecting wrongs committed abroad, was treated
of in chapter IX., ante, p. 189.

In Re Eldorado Union Store Company (z\ it was held
in Nova Scotia, and again in ^oolbred v. Clark (a), it was
unanimously held by the Supreme Court of Canada, that
the Dominion Winding-up Acts are insolvency legislation,
and are properly made applicable to companies incorporated
under provincial Acts. In Allen v. Hanson (b), it was held

(y) 8 S. C. R. 579; G O. A. K. 639; 31 U. C. C. P. 112.
(z) 6 Russ. & Geld., 514.
() 17 S. C. R. ‘265.
(6) 18 S. C. R. 667.

THE B. N. A. ACT SEC. 91, S.-S. 21. 395

that these Winding-up Acts also apply to companies incor-
porated under Imperial Acts, the power in such case being
limited, of course, to dealing with the realization and dis-
tribution of the assets in Canada. See the earlier case of
Merchants Bank v. Gillespie (c), in which it was held that
the Winding-up Act then in force, did not, upon the proper
interpretation of it, apply to such an Imperial Company.

In Clarkson v. Ontario Bank (d) and other cases re-
ported with it, the validity of certain legislation by the
Ontario legislature (R. S. O. c. 124 “an Act respecting as-
signments and preferences by insolvent persons “) was in
question. The court was equally divided. The opinions of
Hagarty, C.J.O., and Osier, J.A., who held the Act ultra
vires, proceed upon the broad ground thus expressed by the
Chief Justice :

“It is to all intents a law for the Judicial administration of
an insolvent’s estate by means unknown to the common law,
and conferring rights on an assignee in addition to, and beyond
all rights assigned to him by the debtor.”

On the other hand, Burton and Patterson, JJ.A., who
upheld its validity, support their opinions by pointing
out that the various clauses, examined in detail, deal with
matters within the legislative competence of a provincial
legislature under sub-section 13 of section 92. property and
civil rights. In view of this difference of opinion it can be
easily understood, therefore, that the view we have
attempted to express in an earlier chapter is advanced
with much mistrust. In all these cases there will
have to be a pronouncement by the Judicial Committee
of the Privy Council or an amendment to the B. N. A. Act,
before the position of impecunious debtors is satisfactorily
settled.

In Clarkson v. Ontario Bank, Burton and Patterson,
JJ.A., both expressed some doubt as to section 9 of the Act
then in question, which section did not itself come im-

(c) 10 S. C. R. 812. (d) 15 O. A. R. 1GG.

396 THE B. X. A. ACT SEC. 91, S.-S. 21.

mediately in question in the case. It provided that an
assignment, under the Act, for the general benefit of
creditors, should take precedence of all judgments and
executions not completely executed by payment : and
afterwards, in Union Bank v. Neville (e), it was held by
Chief Justice Sir Thomas Gait, to be ultra vires, as being
insolvency legislation.

” The question now is whether or not the assignee is entitled
to take these goods out of the possession of the sheriff. It is
manifest that the assignor himself has no such authority, and
it appears to me that, that being the case, he could confer no
such right on his assignee. By the words of the statute itself,
it is plain that the provisions are to have effect only in cases of
insolvent debtors or persons on the verge of insolvency ; con-
sequently, to attribute to an assignment under the statute a
power to remove goods in the hands of the sheriff under execu-
tion against an insolvent, must, in my opinion, be considered as
an Act relating to “bankruptcy and insolvency.”

To the same effect from the other standpoint we
may note the case of Kirniey v. Dudman (/), decided by
the Nova Scotia Supreme Court, upholding the validity of
section 59 of the Insolvent Act of 1869, which provided
that a judgment not completely executed, should as against
an assignment under that Act, create no lien or privilege
upon the property of the insolvent.

In The Queen v. Chandler (y), it was held by the
Supreme Court of New Brunswick, that those provisions,
hi what are commonly known as Indigent Debtors Acts,
providing for the examination of a confined debtor and for
his discharge from imprisonment upon proof of indigence,
and of the absence of fraudulent dealings with his property,
cannot be passed by provincial legislatures. This case
arose in 1868, and the judgment of the court was founded
upon views, as to the wide scope of this sub-section, which
cannot in view of the later authorities be now considered

(e) 21 O. R. 152. (/) 2 Russ. & Ches. 1’J ; 2 Cart. 412.

(u) 2 Cart. 421 ; 1 Hannay 556.

THE B. N. A. ACT SEC. 91, S.-S. 21. 397

a. correct exposition of the law. The words ” bankruptcy
and insolvency ” were interpreted as covering all legisla-
tion as to impecunious debtors even entirely apart from
any system of bankruptcy and insolvency legislation,
and, in this view, the Act in question was held to be
an insolvent Act (h). In another aspect, however, the
case may well be referred to, as being one of the earliest
decisions emphatically enunciating the doctrine that,
under the B. N. A. Act, it necessarily devolves upon
courts of justice to inquire into the validity of post-Con-
federation Canadian legislation. The fact that the
Governor-General had not disallowed the provincial Act in
question, was decisively held by the court to be immaterial,
upon an inquiry as to its legal validity.

Upon the question as to the scope of this sub-section
21, The Queen v. Chandler has never been overruled, but, in
subsequent cases in New Brunswick, the wide view upon
which the decision in the early case proceeded has evidently
and necessarily been modified. Prior to the Union, the
New Brunswick legislature had passed an Act extending
the gaol limits an Act affecting confined debtors. This
Act was not to come into operation until April 1st, 1868,
but before that date, and after Confederation, it was
repealed by a subsequent enactment. The New Brunswick
Supreme Court intimated that there was nothing in the
point that the Act was one relating to insolvency, and that
therefore the provincial legislature was within its powers
in repealing it (i). And, again, in Armstrong v. McCutchin
(j), the Supreme Court of New Brunswick held that an
Act of the legislature of that province abolishing imprison-
ment for debt was not ultra vires, as respects a party not
shown to be a trader, subject to the Dominion Insolvent
Act. Ritchie C.J., says :

(h) See the remarks of Mr. Justice Burton in Clarkson v. Ontario
Bank, ubi supra ; and see also notes to sec. 92, s.-s. 14, post.
(i) McAlmon v. Pine, 2 Cart. 487 ; 2 Pug 44.
( j) 2 Cart. 494 ; 2 Pug. 381.

398 THE B. N. A. ACT. SEC. 91, S.-S. 21.

” But while legislation on the subject of imprisonment for
debt may be, under some circumstances, involved in legislation
on bankruptcy and insolvency, and therefore fit matter to be
dealt with by the Dominion parliament, it by no. means follows
that in no circumstances can a local legislature legislate with
reference thereto. On the contrary, there may be many cases \
where the abolition or regulation of imprisonment for debt is in /
no way mixed up with or depending on insolvency. In this case,/
in which application has been made for discharge under a local!
Act, the party does not appear by the affidavits to be in anywise!
amenable to the Insolvent Act of 1869, nor a party who could
be brought within the operation of that Acfc ; nor, so far as he is
concerned, or as applicable to his case, are the clauses of the
local Act under which he seeks the discharge, in any way in conflict
with that Act. The defendant simply appears in the position of
a person not subject to the Insolvent Act of 1869, and whom
the legislature has declared shall not be proceeded against for
recovery of a debt by imprisonment, without reference to any
question of solvency or insolvency ; therefore there is no reason
why he should not receive the benefit of an Act passed by the
local legislature for regulating the procedure in civil suits in
relation to the civil rights of parties in the recovery of debts.
So far therefore as the defendant is concerned and we limit
our decision to the particular circumstances of this individual
case there is no reason why the Act should not have full force
and effect. Begina v. Chandler, which was so much pressed on
us, is, we think, entirely distinguishable from the present case.”

See also, Re De Veber (k), in which an Act of the New
Brunswick legislature, providing that as against an assignee
of the grantor under any law relating to insolvency, a bill
of sale should only take effect from the date of its filing,
was held to be intra vires. The provinces down by the
are not at one upon this question. In Johnson v.
Poyntz (I), it was held by the Nova Scotia Courts that a
provincial legislature- could confer upon a newly created
provincial court, jurisdiction to entertain an application for

(k) 21 N. B. R. 401 ; 2 Cart. 552.
(I) 2 Cart. 416; 2 Russ. & Geld. 1M.

THE B. N. A. ACT SEC. 91, S.-S. 21. 399

the discharge of anjnanlypjit_debtor under a provincial Act
passed prior to Confederation, such legislation, it was held,
not coming within this sub-section ; while, on the other
hand, in the case of Munn v. McCannell (m), the Supreme
Court of Prince Edward Island held to be ultra vires, a
provision in the Indigent Debtors Act of that province,
providing for thediacharffe of an insolvent debtor.

The language above quoted of Sir Montague Smith in
delivering the judgment of the Privy Council in Gushing v.
Dupuy (n) would seem to cover the various matters dis-
cussed in the above cases. As relating to ” civil rights in
the province” a provincial legislature has full power to
legislate thereon, subject to the operation of any general
insolvency legislation passed by the Dominion parliament.

In Murdoch v. Windsor & Annapolis Railway Co. (o),
Mr. Justice Ritchie, sitting as Equity Judge, held invalid,
as an infringement upon the powers of the Dominion par-
liament under this sub-section, an Act of the Nova Scotia
legislature, entitled “An Act to facilitate arrangements
between Railway Companies a:id their creditors.” The Act? 1 ‘*
provided that the company might propose a scheme of
arrangement between the company and its creditors, and
rile the same in court, and that thereupon the court might,
on application by the company, restrain any action against
the company, upon such terms as such court might see fit.
The Act also provided that notice of filing the scheme
should be published, and that thereupon no process should
be enforced against the company without leave of the court.
Mr. Justice Ritchie considered the Act as one which could
have reference only to a company which was insolvent.
That a company, having become insolvent, should have the
power, in order to settle with all its creditors alike, of de-
claring itself such, and that on such declaration the remedies
of creditors should be suspended, would not be unreason-

(m) 2 P. E. R. () 5 App. Gas. 409.

(a/ 3 Carfc. 368 ; Rusa. Eq. Rep. 137.

400 THE B. N.~A. ACT SEC. 91, S.-S. 21.

able ; but that the legislature should give to a company,
solvent and able to meet all its liabilities, the power of/
staying all proceedings on the part of their creditors, by
merely presenting and filing a scheme of arrangement with
them, would be incomprehensible. The legislation, in his
view, must have been passed on the assumption of the in-
solvency of the company. And, upon this view of the Act,
he held it ultra vires. The same judge held in Re The
Wallace -Heustis Grey Stone Company (p), that the Nova
Scotia Winding-up Act, was infra vires. It made provision
for the winding-up of any company where a resolution to
that effect was passed by the company, or where the court
so ordered at the instance of a contributor, on it being made
to appear that such order was just and equitable. The Act
could be enforced, although no debts were due by the com-
pany, but could not be called into operation by a creditor.
Such an Act, it was held, had no necessary relation to)
bankruptcy and insolvency, but was an Act respecting pro-/
perty and civil rights in the province.

The decision in Murdoch v. Windsor & Annapolis Rail-
way Co. mustsbeconsidered overruled by the judgment in Re
Windsor & Annapolis Railway (pp), in the Nova Scotia
Supreme Court, in which the same Act was upheld so far
as it provided for the confirmation of a scheme, propounded
by the company under the Act, for cancelling certain
debentures, and for the allotment of new stock in lieu
thereof bearing a low rate of interest. The decision, how-
ever, it should be noted, is placed upon the ground that the
Windsor & Annapolis Railway Company was a local work
or undertaking within the meaning of section 92, sub-sec-
tion 10, and that so far as any such local undertaking is
concerned, the impugned Act was within the legislative
competence of the provincial legislature, that the scheme
propounded by the company had 110 relation whatever to

(p) 3 Cart. 374 ; Kuss. Eq. Rep. 461.
(pp) 3 Cart. 387 ; 4 Russ. & Geld. 312.

(b

THE B. N. A. ACT SEC. 91, S.-S. 22. 401

the insolvency of the company, and was simply a scheme
for changing the form of the stock. In this view of the
case, reliance was placed upon L’Union St. Jacques v. Be-
lisle (q}, and the Act in its relation to local undertakings
upheld upon the authority of that case.

We may also refer to Re Briton Medical and General
Life Association (r), cited in notes to section 91, ante, p.
346 as the Act there referred to might, perhaps, be said to
fall within this sub-section 21. The deposit required by
that Act to be made by all corporations desiring to do
business in Canada, was held to be, upon the true construc-
tion of the Act, a special fund applicable in case of insol-
vency for the benefit of Canadian policy holders only.

In McClanaghan v. St. Ann’s Mutual Building So-
ciety (s), it was held that the Dominion parliament has no
power to pass an Act providing for the liquidation of alU
building societies, whether solvent or not, in the province of
Quebec.

In Cote v. Watsoip(), it was held by the kiperior Court ^
of Quebec that a provincial legislature has no power to
impose a tax on the suC^irealized from the sale of an insol-
vent’s effects, or to impose upon an assignee under that
Act, or his agent, any penalty for not taking out a license
to sell by auction the goocte of the bankrupt. In view of
Bank of Toronto^^Xambe, this case cannot be considered
law. (^ AAZ

22. Patents of invention and dis-
covery.

We have already had occasion to point out that this
sub-section embraces what may now be considered almost *

(q) L. R. 6 P. C. 31. See notes to s. 92, s-s. 16.
(>) 12 O. R. 441.

(*) 2 Cart. 237 ; 24 L. C. Jur. 162.
() 2 Cart. 343 ; 3 Q. L. R. 157.
CAN. CON. 26

402 THE B. N. A. ACT SEC. 91, S.-S. 22.

a distinct branch of jurisprudence patent law (u}. The
language of the Judicial Committee in Gushing v. Dupuy ( /),
as to the necessity for regulating “procedure” in connec-
tion with the handling of estates under bankruptcy and
insolvency legislation, applies with almost equal force to
legislation under this sub-section 22. At the same time we
have to note that comparatively few cases have arisen
calling for a decision as to the line of division which
properly marks out the sphere of provincial legislative
authority in connection with patent litigation, but so far as
the decisions go they uphold the authority of the Dominion L
parliament to regulate procedure in such cases.

In Aitcheson v. Mann (iv), the Queen’s Bench Divisional
Court held, affirming the decision of Boyd, C., that section 24
of the Patent Act of 1872, which requires that the trial of an
action for the infringement of a patent must be tried in the
court nearest the defendant’s residence or place of business,
was intra vires.

In Mousseau v. Bate (x), it was held that proceedings in
the nature of a Sci. Fa. to set aside letters patent of inven-
tion issued under a Dominion statute, cannot be instituted
in the name of a provincial Attorney-General, but can
only legally be brought by the Attorney-General for Canada.
In connection with this case, reference should also be had to
Regina v. Pattee (y), in which the late Master in Chambers
(Mr. Dalton, Q.C.), held that the Attorney-General of
Ontario was the proper officer to grant a fiat for the issue
of a writ of *SW. Fa. In another view, the case is note-
worthy as containing one of the earliest expressions of
opinion in reference to the necessary co-extension of the
executive and legislative functions of a provincial govern-
ment. So far as concerns this sub-section, however, the
judgment is expressly limited to the case of a subject domi-

(M) Ante, p. 236. (r) 27 L. C. Jur. 153 ; 3 Cart. 341.

(v) 5 App. Gas. 409. (//) 5 P. R. (Out.) 292.

() 9 P. R. (Ont.) 473.

THE B. N. A. ACT SEC. 91, S.-S. 23. 403

ciled in the province, seeking to avail himself of the peculiar
privileges of the Crown, in order to the assertion of his own
private interests, and the Master in Chambers desired that
he should not be understood as speaking of a case where
the Crown itself seeks to avoid a patent.

In Re The Bell Telephone Co. (z), it was held to be a
proper exercise of the powers of the Dominion parliament
under this Act, to provide that in case of dispute arising
as to the validity of a patent, such dispute should be settled
by the Minister of Agriculture, or his Deputy, whose
decision should be final. It was held that by the Act a
court or judicial tribunal was constituted, and that the Do-
minion parliament had power to constitute such a court,
under section 101 (see post). This question has been already
discussed to some extent in chapter XL, ante, p. 230, and
further reference to it will be found in the notes to section

23. Copyrights.

This is hardly the place to discuss the somewhat peculiar j
position in which, underfthe combined operation of Imperial ‘
and Canadian legislation, Canada is placed in relation to
this question of copyright. Our power along this line
is subject to limitations owing to the existence of Imperial
legislation in force in Canada. Smiles v. Belford (a], in
which the situation is graphically described by Moss, J.A.
(afterwards C.J.O.), is of importance to our subject in
another aspect, namely, as affirming the legal supremacy of
the Imperial parliament, even over colonies possessed of legis-
latures of their own, and as limiting the term ” exclusive ”
in this section 91 of the B. N. A. Act, as referable merely
to the power of the. Dominion parliament as distinguished
from that of the provincial legislatures (6). It is hardly

(z) 1 O. K. 605.

(a) 1 O. A. R. 436 ; see also Anglo-Canadian Music Publishers v.
Suckling, 17 O. R. 239.

(b) See ante, p. 67, and note (x) to sec. 91, ante, p. 350.

404 THE B. N. A. ACT SEC. 91, S.-S. 24.

conceivable that any question can arise as between the
Dominion and the provinces upon this subject, except,
perhaps, in relation to ” procedure ” in copyright litigation,
should the Dominion parliament legislate along this line.
See note to the last sub-section (22).

24. Indians and lands reserved for the
Indians.

The proclamation (a) which followed upon the Treaty
of Paris contained provisions designed to protect the ?ibn-
rigines ” in the possession of such parts of our dominions
and territories as, not having been ceded to us, are reserved
to them, or any of them, as their hunting grounds.” In the
celebrated case of the St. Catharines Milling Co. v. The
Queen (b), it was held by the Judicial Committeeoi the
Privy Council, that the interest of the Indians under this
proclamation was “a personal and usufructuary rig] it,

dependent upon the good will of the sovereign

There has been all along vested in the Crown a substantial
and paramount estate underlying the Indian title, which
became a plenum dominium whenever that title was sur-
rendered or otherwise extinguished.” From time to time
Indian tribes had surrendered their title to portions of this
reserved territory, usually upon terms which secured to
them a more definite right of occupation of some small suit-
division of it. These smaller tracts were known as “Indian
reserves.” In Church v. Fenton (c), it was held by all our
courts that the above sub-section 24 applied only to these
and not to the larger indefinite areas covered by the
proclamation of 1763 ; but this view is distinctly nega-
tived by the Committee in the case above referred to.
Under the holding of that tribunal, the power of the
Dominion government is a power of legislation and adniin-

(a) See Houston, ” Const. Doc. of Canada,” p. 67.

(6) 14 App. Cas. 46.

(c) 5 S. C. K. 239 ; 4 O. A. R. 159 ; 28 U. C. C. P. 384.

\

THE B. N. A. ACT SEC. 91, S.-S. 24. 405

fistration in respect of Indians, and the lands reserved for
them over both these larger areas and the more restricted
areas of the ” Indian reserves ” (so called) until the surren-
der and extinguishment of the Indian title. The chief
matter in dispute in the case was as to the beneficial interest
in these lands after such surrender and extinguishment.
The Committee gave effect to the contention put forward
on behalf of the province of Ontario, that to the provinces
accrued the right to ” a beneficial interest in these lands,
available to them as a source of revenue whenever the
estate of the Crown is disencumbered of the Indian title.”
Upon such surrender they fall into the category of ” public
lands belonging to the province,” mentioned in sub-section
5 of section 92. It would appear, however, that where,
upon a surrender, certain rights of hunting and fishing
throughout the surrendered territory were still reserved to
the Indians, “with the exception of those portions of it which
may, from time to time, be required or taken up for pur-
poses of settlement, mining, lumbering, or other purposes,”
the question of ” the right to determine to what extent, and
at what periods, the disputed territory, over which the
Indians still exercise their avocations of hunting and fishing,
is to be taken up for settlement or other purposes,” is still
an open one. In that case, there was no ‘pretence of a
reservation to the Indians of any right to timber in the
territory surrendered, and a permit to cut timber issued
by the Dominion government was held invalid. It
occurs to one, however, that it would be an easy
jnatter to arrange such terms of conditional surrender,
with such reservations of beneficial interest to the Indians,
as would practically prevent the provinces from dealing
with the land ; but whatever is surrendered accrues to the!
benefit of the province in which the territory is situated.
Subject to the burden of the Indian title (with whatever
legislative and administrative powers exist in the Dominion
government by reason of the existence of that Indian title)
the beneficial interest in these lands passed on Confedera-

406 THE B. N. A. ACT SEC. 91, S.-S. 25.

“tion to the provinces, the fee, of course, remaining in the
XDrown. See further notes to section 102. et seq.

25. Naturalization and aliens.

By the Imperial Naturalization Act, 1870, it is enacted
that ” 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. . . .”

While, therefore, as between the Dominion and the
provinces, this subject is, by this sub-section, exclusively
! with the formeri.no legislation by the parliament of Canada
,can make an alien a British subject quoyd the Empire: it
; can do no more than give him, within the confines of the
Dominion, the privileges or some of the privileges of natu-
ralization. Where any question arises as to the national
<, stain* of a person domiciled in a colony, such question must be determined by the law of England, whilst the rights and liabilities incident to that .sY^/n/x must, in Canada, be determined by laws passed by the parliament of Canada (d). The power of a provincial legislature to* make laws relative to ” property and civil rights in the province ” must obviously be read subject to Dominion legislation under this sub-section. It is for the Dominion government to say whether or not, within Canada, an alien is to lie under any disability and that government can insist that throughout the Dominion an alien may, upon conforming to the provisions of any Act in that behalf passed by the parliament of Canada, become, quoad Canada, a naturalized British subject and enjoy all the privileges accorded by the laws of the provinces to British subjects. (d) Donegani v. Donegani, 3 Knapp, P. C. C. 63; re Adam, 1 Moo. P. C. C. 460. THE B. N. A. ACT SEC. 91, S.-S. 26, 27. 407 Connected with this subject is the question of the terri- torial operation of Canadian legislation discussed in chapter IX., ante, p. 185, et seq. Just as Canadian legisla- tion cannot invest an alien with the character of a Britisk* subject outside Canada, so it cannot visit upon natural born* British subjects resident in Canada any penalty for acts committed without the Dominion ; for, without the Dominion, they are quoad Canada British subjects only and their status as citizens of Canada is nought. A for- tiori, legislation in reference to the acts of aliens abroad would be invalid. 26. Marriage and Divorce. Compare section 92, sub-section 12. No case has arisen in our courts in reference to the line of division between the Dominion parliament and the local legislatures on this subject of marriage ; but this sub-section and sub-section 12 of section 92, will be found frequently compared and contrasted, and inferences drawn therefrom as to the pro- per principles of interpretation to be applied to the various other sub-sections of sections 91 and 92 (e). Judging from provincial legislation since Confederation, it would appear to be conceded that the scope of the first branch of this sub- section is limited to legislation as to the status merely of husband, wife, and issue. So far, the scope of the second branch has been limited in practice to private bills legisla- tion. No court for the trial of matrimonial causes has yet been established. 27. The Criminal Law, except the Constitution of Courts of Criminal Juris- diction, but including the Procedure in Criminal Matters. It will be advisable to defer consideration of the excep- tion the constitution of courts of criminal jurisdiction (e) See Citizens.*. JParsons, 7 App. Cas. 96 ; City of Fredericton v. The Queen, 3 S. C. R. 505. 408 THE B. N. A. ACT SEC. 91, S.-S. 27. until we reach sub-section 14 of section 92, and to confine our remarks upon this sub-section to “criminal law” and “procedure in criminal matters.” The subject has been already adverted to in chapter XL, ante, p. 235, et seq., to which reference should be had. In its widest and strictly legal sense (f) the term “criminal law” would include all that class of matters offences against the provisions of provincial law covered by sub-section 15 of section 92, and, the jurisdiction being in each case exclusive, the meaning of the term must be here limited. It will facilitate our enquiry if we refer shortly to the sources of our criminal law using that term in its widest sense and to the position at the time the Union took effect. As the basis we take the common law of England. In chapter V. we have endeavored to point out to what extent English common and statutory law was deemed to be in- troduced into the various provinces of British North America. As to the common law of England relating to crimes, their trial and punishment, no discussion was neces- sary. That law was undoubtedly in force in the maritime provinces and in Quebec as then constituted. By the Quebec Act, 1774 (g), the criminal laAV of England was to continue to be administered in the province, and be “ob- served as law as well in the description and quality of the offence as in the method of prosecution and trial, and the punishments and forfeitures thereby inflicted.” As was pointed out, in Upper Canada the question of applicability seems not to have been considered open in determining the operation within that province of English criminal law (///, but in the maritim3 provinces this question had to be considered in all cases, criminal as well as civil. But, the “criminal law of England ” had become in those days largely statutory, and no disti nction in principle can (j) Sea Reg. v. Boardman and Rag. v. Roddy, post, (g) 14 Geo. III. c. 83. (h) See ante, p. 123. THE B. N. A. ACT SEC. 91, S.-S. 27. 409 be pointed out as separating statutory criminal law. from the old common law upon the subject of crimes, their trial { and punishment. All sorts of regulations were^laid down to guide the daily conduct of men, and their observance was enforced by penalties, inflicted in personam or in rem>
until the severity of English law became notorious. As Sir
Thomas May points out (i) t the criminal code down to the
reform era of the ‘thirties was largely protective of the
rights of property, regardless, in such case, of any question
of moral turpitude. Such was the law introduced into the
colonies of British North America, and down to Confedera-
tion there existed no necessity for distinguishing the various
parts of the criminal code, whether as passed for the put-
ting down of public wrongs or as directed toward the
upholding of private rights. “Crimes” was a most com-
prehensive term, and its definition by Richards, C.J., hi
1868 ( j] may be taken as a correct exposition of the law
as it stood at the date of Confederation :

” When a party may be punished for an offence against a
public Act of a public nature, for which he may be tried sum-
marily and -a penalty imposed, the proceeding to recover such a,
penalty is a criminal proceeding, . . . then the offence for.
which the penalty was imposed must be a crime.”

This, as we have said, covers enactments such as those,
which, by the express provision of sub-section 15 of section
92, a provincial legislature may pass ” for enforcing any
law of the province made in relation to any matter coming
within any of the classes of subjects enumerated in this
section.” So far as concerns legislation since Confedera-
tion, it may be now taken as clearly established that pro-
vincial penal laws within the limits defined are not
“criminal law,” nor is the procedure for their enforcement
“procedure in criminal matters” within the meaning of
this sub-section 27. As to the ” common law ” upon the

(/) May’s ” Const. Hist, of Eng.” Vol. III. p. 393, et seq.
(j) In lie Lucas & M’Glashan, 27 U. C. Q. B. 81 ; see also Reg. v.
Roddy, 41 U. C. Q. B. 291.

410 THE B. N. A. ACT SEC. 91, S.-S. 27.

subject of crimes, their trial and punishment, there seems
to be a consensus of judicial opinion that, under this sub-
section this became so far as still extant in the different
provinces a body of Dominion law. But how about the
great body of provincial statutory ” criminal ” law as it)
would then be properly termed in force in the different
provinces at Confederation ? Upon this question there is
no expression of judicial opinion, so far as we have b^en
able to find, and yet it seems to us clear that section 129 of
the B. N. A. Act (see post), makes a definite division of
that whole body of existing ” criminal ” law, and that,
without doubt, whatever enactments prior to Confederation
could now, were they non-existent, be passed by a pro-
vincial legislature must, since the Union, be deemed to be
a body of ” provincial ” law, and the procedure for their
enforcement must be regulated by provincial statutes
applicable, generally, to prosecutions under post-Con-
federation provincial Acts. We may say, also, that much \
may be advanced in favor of the view that even the coin- !
mon law of England upon this subject so far as s^ill
extant in Canada is capable of division along a similar
line (k), but j udicial opinion is, as we have said, in favor of ,
the view that this is by the B. N. A. Act assigned in its
entirety to the parliament of Canada. We now proceed to
examine the cases which have involved consideration of
this sub-section, first, however, remarking that the notes
to sub-section 15 of section 92 should be read in connection
with what is here laid down, for nearly every case lias
involved a comparison between that sub-section and this.

In Reg. v. Boardman (I), Chief Justice Richards,
delivering the judgment of the court, refers to a passage
from the judgment of Martin, B., in Attorney-General v.
Raclloff (m), in which that judge, speaking of ” the intriu-

(k) See per Osier, J.A., in Re 30 II. C. Q. B. 553.
(HI) 10 Exch. 06.

THE B. N. A. ACT SEC. 91, S.-S. 27. 411

sic and essential nature of the act itself ” smuggling
says ” that it cannot be denominated a ‘ crime ‘ according
to the ordinary and common usage of language, and the
understanding of mankind.” Chief Justice Richards says :

” I refer to this language … as indicating the popular
idea of criminal law, in which view it may have been used in the
statute.”

but, without enlarging further upon this suggestion, he
held that, at all events, whatever comes properly within 1
sub-section 15 of section 92 must be excluded from the I
” criminal law ” confided to the parliament of Canada by
this sub-section 27. A clause in the Liquor License Act of
Ontario directed against any person who, having violated
the Act, should compromise the offence, and against any per-
son who should be a party to such compromise, was upheld.
But in Regina v. Lawrence (n) it was held that a provision
of the same Act, that any person who, in a prosecution
under the Act, tampers with a witness, should be guilty of
an offence under the Act, and liable to a penalty, and regu-
lating the mode of enforcing such penalty, was ultra vires
of a provincial legislature, because the offences dealt with
are offences at common law. Harrison, C.J., says :

” There are many acts, not being crimes, which are triable
before, and punishable by, magistrates, which, although called
offences, are not crimes, and which by the proper legislative
authority may be made the subject of summary magisterial
jurisdiction, either with or without appeal, but these are not to
be mistaken for acts in themselves crimes, and the subject of
Indictment, and of conviction under indictment, either at the
common law or by statute, Such acts as these may by the pro-
vincial legislature be made the subject of punishment by fine,
penalty or imprisonment, when this is done for the purpose of
enforcing any law of the province made in relation to any matter
coming within any of the classes of subjects exclusively assigned
to the provincial legislatures. . . . The constitutionality
of this clause is called in question because it is affirmed that the

(n) 43 U. C. Q. B. 164, affirming judgment of Gwynne, J.

412 THE B. N. A. ACT SEC. 91, S.-S. 27.

acts with which it deals are, and each of them is, the subject of
an indictment by the criminal (sic j law, and so not the subject
of the exercise of power by the provincial legislature. If this
contention be well founded in fact we are of opinion that it is
a good contention in law.” ^

Upon a review of the authorities it was held that the
offence legislated against by the Act in question, was an
offence which might be the subject of an indictment at
common law, and was therefore beyond the power of a
provincial legislature. Regina v. Boardman, and Regina
v. Lawrence are hard to reconcile. The former can be
upheld only on the view that the compounding of a misde-
meanor is not an offence by the common law, and can,
therefore, for the purpose of securing proper enforcement
of a provincial law, be made punishable by provincial
legislation.

To the like effect, in Regina v. Shaw (o) it was held by
the Court of Queen’s Bench in Manitoba, that keeping a
gambling-house is an offence against the common law, and
that consequently it can only be dealt with by the parlia-
ment of Canada, and cannot be made an offence by M
provincial Municipal Act or by a by-law passed under the
authority of such Act. Mr. Justice Killam says :

” It was an offence at common law to keep a gambling
house. This offence, it appears to me, comes within the subject
of criminal law referred to in section 91, sub-section 27 of the
]}. N. A. Act. That term musfc, in my opinion, include every
i act < oim’xxion ir/ndi iras retjunh’tl an criniintd % the //nr.s- of tin’ imn-incen when the I’ninn Act. n-as //^.s-.W, and which was not merely an offence against a by-law of a local authority. If this were not to be the rule of construction, more difficulty than ever would arise in drawing the line between the jurisdic- tion of the Dominion and the provincial legislatures. This gives us one clear line of demarcation which it would be dangerous to obliterate. I think it must be deemed to be one line which was intended to exist. How fir parliament can ex- (o) 7 Man. L. R, 518. THE B. N. A. ACT SEC. 91, S.-S. 27. 413 elude provincial or municipal legislation by creating new crimes is a question. ” This being the view which I t-ike, I think that the act of keeping a common gaming house cannot be made an offence by provincial statute or by municipal by-law, but that it can be punished only as an offence against the general criminal law by indictment or such other procedure as the parliament of Canada may provide.” It will be noticed that the language of this judgment goes beyond what was necessary to the decision of the case, and the part italicised conflicts with sec. 129 of the B. N. A. Act. See ante, p. 410. On appeal, however, to the full Court, Taylor, C.J., intimates his entire con- currence with the view expressed by Killam, J. He speaks of the offence as one which might have been dealt with under the Dominion statute R. S. C. c. 158. Referring to Regina v. Wason (p), before the Court of Appeal for Ontario, he points out that the offence created by the provincial Act there impugnetP formed no part of the criminal law previously existing, and that the apparent object of the Act was to protect private rights rather than punish public wrongs. Mr. Justice Bain, referring to the same case, says : ” The remarks of all the judges clearly imply that had the Acfc in question been one that was punishable as a crime under the general criminal law of the Dominion, the matter would have been ultra vires ot the legislature.” Mr. Justice Dubuc did not dissent from the judgment of the court, but expressed his doubts in these words : “It is objected that keeping a gambling house is a criminal offence over which the Dominion parliament has exclusive juris- diction. It is, undoubtedly, a criminal offence ; but I am in- clined to think that such houses might also be regarded as centres of disorder and immorality in the community, which municipal corporations have a right and even a duty to suppress.” We might remark, in reference to this case, that the (p) 17 O. A. R, 221. 414 THE B. N. A. ACT SEC. 91, S.-S. 27. ultimate decision of the point raised by Mr. Justice Dubuc will depend somewhat upon the scope given to section 92. sub-section 8 ” municipal institutions in the province.” If the views expressed by the Court of Appeal for Ontario in Re Local Option Act (g), receive final sanction, and the term ” municipal institutions ” be held to cover, in the newly acquired provinces, what the Court of Appeal has held it to cover in the province of Ontario, then the view to which Mr. Justice Dubuc inclined would be supported by the fact that prior to Confederation, the power to put down such establishments was vested in municipal bodies. in Upper Canada at least. If, however, the powers of a municipal body cannot, so far as those powers are conferred by a provincial legislature, extend beyond the limits of the powers directly exerciseable by such legislature (r) under the other sub-sections of section 92, it will have to be con- sidered whether any sub-section does support the grant to a municipal body of what have been called police powers. This must be discus^d later, but, in either view, the point raised by Mr. Justice Dubuc would necessitate consideration of what was said by the Privy Council in Russell v. Reg 1 .,, that, in one aspect, a subject may fall within section 91, and, in another, within section 92, and of how far that prin- ciple can apply to the determination of the scope of this sub-section 27 and sub-section 15 of section 92. Provincial statutes regulating the killing and possession of game at certain seasons of the year, were held by the Court of Queen’s Bench in Manitoba, not to fall within this sub-section (.s). At common law, no prohibition whatever exists in regard to the taking of game at any season of the year: no public general statute of the Dominion purports (([} 18 O. A. R. 572 ; see notes to s. 91, s-s. 2, ante. p. 309 and to s. 92, 8-3. 8, post. (r) See Leprohon v. Ottawa, 2 O. A. R. 522, referred to in the notes to s-s. 8 of s. 92, post. (s) Reg^jv. Robertson, 3 Man. L. R. 613; see also notes to s-s. 16 of s. 92, post. ~~ THE B. N. A. ACT SEC. 91, S.-S. 27. 415 to make criminal interference with wild animals ; and therefore the matter is under the B. N. A. Act, left to be dealt with by each province as a matter of a merely local or private nature. This view is suggested by the judgment of the court in that case ; that, if by reason of inter-pro- vincial migration of birds and other game, the subject should become one of the Dominion or quasi-national importance, it would then be in order for the Dominion government, if deemed advisable, to enact laws, making acts, which might tend to the extermination or undue decrease of o-ame, o criminal. That provincial legislatures have exclusive authority to regulate the procedure in prosecutions for offences against provincial statutes is now recognized as the law in all the provinces. In Regina v. Roddy (t), it was held that a provincial statute could so far create a crime as to make applicable to the prosecution therefor the rules of* evidence, procedure, etc., laid down by Dominion legislatioSf to the exclusion of any provincial law ; but this decision has been clearly over- ruled by Regina v. Wasori (ti\ This case will be found referred to more at length in the notes to sub-section 15 of section 92. It is a clear authority that the provincial legis- latures have full power to regulate procedure in all prose- cutions arising under provincial Acts. As will be seen, the authorities in the other provinces are to the same effect. On the other hand, in Regina v. Lake (v), it was held that a provincial legislature has no power to enact that an offence against a Dominion Act (in that case the Canada Temperance Act), may be treated as, and be proceeded upon, under a provincial statute ; and in Regina v. Eli (it;), also a prosecution under the Canada Temperance Act, it was held (*) 41 U. C. Q. B. 291 ; see Reg. v. Bittle, 21 O. R. 605. (M) 17 O. A. R, 221. (v) 43 U.C. Q. B. 515. (w) 13 O. A. R. 526. 416 THE B. X. A. ACT SEC. 91, S.-S. 27. that all procedure connected with the infliction of punish- ment for offences against that Act must be fixed by the Dominion parliament, and that no appeal lay to the Court of Appeal under the procedure as to appeals laid down 1 > y
provincial statutes. To the same effect are many dicta of
judges in the other provinces in cases involving the other
aspect of this question of procedure. The latest enuncia-
tion of the rule is in The Queen v. De Coste (x), in which the
Supreme Court of Nova Scotia held that a provincial legis-
lature has no power to authorize the removal by certwrdri
of a conviction under the Canada Temperance Act. This
agrees with the decision in all the provinces.

We should note, also, that in Ward v. Reid (y), it was
held by the Supreme Court of New Brunswick, that the
Dominion Act, 32 & 33 Vic. c. 31, s. 78, which provided
that penalties against justices of the peace for the non-
return of convictions, may be recovered in an action of
debt by any persoy^ suing for the same in any court of
record, was within me competence of the Dominion parlia-
ment, and that a provincial enactment declaring that
county courts should not have jurisdiction in such cases,
was thereby overborne. It is submitted that the Dominion i
Act can only be held to apply to convictions for offences
under Dominion legislation, and can have no application tol
convictions for offences against provincial laws.

Although we defer consideration of the excepted matter
of the constitution of courts of criminal jurisdiction, we
should here make reference to some cases in which ques-
tion has arisen as to the nature of the legislation impugned,
whether relative to the ” constitution’ of the court or to
procedure.

In Regina v. Bmdshaw (z), it was held that trial with
or without jury is ;i question of procedure, and is not

(x) 21 N. S. K. 210.

(y) 22 N. B. Rep. 279 ; 3 Cart. 405.

(z) 38 U. C. Q. B. 504.

THE B. N. A. ACT SEC. 91, S.-S. 27. 417

a matter relating to the ” organization ” of courts. The
validity of Dominion legislation adopting, for purposes of
criminal trials, provincial law in reference to the selection
of jurors was upheld in Reg. v. O’Rourke (a), a case suffi-
ciently referred to in Reg. v. Plante, about to be noted.

In reference to the provision in the Dominion Criminal
Procedure Act (see R. S. C., c. 174, s. 160), adopting the
provincial jury law, this saving clause is inserted : ” sub-
ject always to any provision in any Act of the parliament
of Canada, and in so far as such laws are not inconsistent
with any such Act.” Section 166 of the same statute
makes provision for a mixed jury, when duly demanded in
the province of Quebec, and section 167 makes a somewhat
similar provision for the province of Manitoba. In the
latter province, prior to 1890, the jury laws were adapted
and conformed to the requirements of the Criminal Pro-
cedure Act. There were provisions for the selecting, sum-
moning and impanelling of French-speaking jurors in case
a mixed jury was required, but in 1890 these provisions
were repealed. In Queen v. Plante (b), the defendant
demanded a mixed jury, or a jury composed of at least six
persons skilled in the language of the defence, as pre-
scribed for in section 167 of the Criminal Procedure Act,
but such a jury could not be obtained. Upon a case
reserved, the majority of the court gave judgment, quash-
ing the case, upon the ground that, as judgment had been
given on demurrer at the trial upon the point raised, it had
become matter of record and could not therefore be
reserved, a writ of error being the only remedy. Mr.
Justice Dubuc dissented from this view, and therefore
found it necessary to consider the constitutional question
involved. After referring to Regina v. O’Rourke and the
views of Wilson, C.J., and Hagarty, C. J., therein expressed,
his judgment proceeds :

(a) 1 O. R. 465 ; 32 U. C. C. P. 388 ; see note (h) ante, p. 202.

(b) 1 Man. L. R. 537.
CAN. CON. 27

418 THE B. N. A. ACT SEC. 91, S.-S. 28, 29.

” I perfectly agree with those views. I think that the jury,
when empanelled and sworn, became part of the constitution of
the court ; but, at the same time, I am of opinion that the
selecting and summoning of jurors are matters of criminal
procedure over which the Dominion parliament has exclusive
jurisdiction. It being so, section 169 of the Criminal Procedure
Act, by which the power to select and summon jurors is
delegated to the province, must be held to be intra vires. As,
therefore, the provinces exercise the power of selecting and
summoning jurors only by delegation of the Dominion parlia-
ment, and as, by section 160, the delegation is made ‘ subject
always to any provision in any Act of the parliament of Canada,
and in so far as such laws are not inconsistent with any such
Act,’ it follows that section 167 of the Criminal Procedure Act,
by which, in Manitoba, that power, delegated to the province,
of selecting and summoning jurors is qualified in providing for
a mixed jury when duly demanded, is also intra vires.

” The authority to delegate implies the authority to qualify
and restrict the power delegated. By section 160, in delegating i
to the provinces the power of selecting and summoning jurors,!
the parliament of Canada reserved to itself the right to make
provisions in regard to the same. . . . The parliament of
Canada, by said section 167, has prescribed and determined
what kind of jury shall, in certain cases, be required for criminal
assize. It follows that any jury summoned to serve at a
criminal assize, and different in its composition from the jury
required by the provisions of section 167, may be, by any
prisoner entitled to the benefit of such provisions, challenged as
not properly and duly summoned ” (c).

28. The Establishment, Maintenance,
and Management of Penitentiaries.

29. Such classes of subjects as are
expressly excepted in the enumeration of
the classes of subjects by this Act as-
signed exclusively to the Legislatures of
the Provinces.

(c) See also Reg. v. Foley, 2 Cart. 653 (n).

THE B. N. A. ACT SEC. 91, S.-S. 29. 419

Referring to the various sub-sections of section 92, the
only express exceptions are those mentioned in sub-sections
1 and 10. With reference to the latter we need say noth-
ing here, as the notes to that sub-section discuss the matter
with sufficient fullness. As to the former, it is submitted
that this sub-section 29 does not apply to warranJLj&e
Dominion parliament in amending the provincial constitu-
tions ” as regards the office of Lieutenant-Governor.” Any
such legislation would be repugnant to the spirit, if not the
express terms, of the B. N. A. Act. The office of the Lieu-
tenant-Governor is, as we have frequently remarked, a
link in the chain of connection between the provinces and
the Empire, and the whole spirit of the B. N. A. Act is that
this is one of those fundamental matters in connection with
the scheme of Canadian . political organization, which is I
matter of Imperial concern. This is recognized in that
passage of the judgment of the Privy Council in Liquida-
tors of Maritime Bank v. Receiver-General of New Bruns-
wick (d), in which their Lordships say that the Dominion
government is, in relation to a Lieutenant-Governor, “a
governing body, who have no powers and no functions
except as representatives of the Crown.”

And any matter coming within any of
the classes of subjects enumerated in this
section shall not be deemed to come
within the class of matters of a local or
private nature comprised in the enumera-
tion of the classes of subjects by this Act
assigned exclusively to the Legislatures
of the Provinces.

As to the wide effect given to this concluding clause in }
the earlier decisions in our courts, see chapter^X., ante, pj!
207. Its reference to sub-section 16 of section 92 is now
clearly settled by authority. In L’Union St. Jacques v.

(d) Times L. R. Vol. VIII. 677 ; see ante, p. 307.

420 THE B. N. A. ACT SEC. 92, S.-S. 1.

Belisle (e}, Lord Selborne lays it down that the onus is on
the party who contends that any matter, ” being of a private
nature,” does also come within the class of subjects specially
enumerated in the 91st section. Note, too, the way in
which the reporter quotes this clause, putting ” matters < >f
a local or private nature ” in inverted commas as a quota-
tion from section 92, sub-section 16. See also Dow v.
(Black (/’), and Citizens^ v. Parsons (g) where the grammat-
ical connection with sub-section ]j6 of section 22. is clearly-
pointed out. In note (xi) to section 91, ante, p. 352, we
have pointed out the bearing of this clause on the question
as to the power of the Dominion parliament to pass
“private Acts,” and the notes to sub-section 16 of section
92 contain further reference to it.

Exclusive Powers of Provincial Legis-
** lat’iires.

exSvepro- 92. In each Province the Legislature
hS! Le81s ” may exclusively make laws in relation to
matters coming within the classes of sub-
jects next hereinafter enumerated, that
is to say :

As to the powers, other than legislative, and the privi-
leges and immunities of provincial legislatures, see the
notes to section 69, ante, p. 326. The notes to the opening
clause of section 91 should be read preparatory to the con-
sideration of the various sub-sections of this section 92.

1. The Amendment from time to time,
notwithstanding anything in this Act, of
the Constitution of the Province, except
as regards the office of I^utejiant-Gov-
ernor.

(c) L. R. 6 P. C. 31. ff) L. R. 6 P. C. 272, at p. 282.

((j) 1 App. Cas. %, at p. 108.

THE B. N. A. ACT SEC. 92, S.-S. 1. 421

When, in the early ‘fifties, it was considered desirable to
make the Legislative Council of (Old) Canada elective, it
was thought that nothing short of Imperial legislation
could effect the change ; that any colonial legislation to that
end would be ” repugnant ” to the provisions of the Union
Act, 1840, which prescribed the form of political organiza-
tion in the province. Accordingly, an Imperial Act (17 &
18 Vic. c. 118) was passed (h) authorizing the parliament of
Canada to make the desired changer The Act authorized
further alteration, from time to time, but with the proviso
that any Bill ‘for such purpose should be reserved for the
signification of Her Majesty’s pleasure thereon ; and it also
repealed certain clauses of the Union Act limiting the
power of the Canadian parliament in the matter of making
alteration in the membership of the Legislative Assembly
of the Province.

When, in the early -‘sixties, the legislature of South
Australia desired to alter the constitution of the Legislative
Council and House of Assembly 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 enacted, and, to set at rest these
doubts, 26 & 27 Vic. c. 84 (Imp.) was passed, by which it
was enacted :

‘ ‘ All laws heretofore passed or purporting to have been passed
by any colonial legislature with the object of declaring or alter-
ing the qjmslftajtion 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 it the said legislature had
possessed full powers of enacting laws for the objects aforesaid,
and as if all formalities and conditions by Ac^^f-parliament or
otherwise prescribed in respect of the passing of such laws had
been duly observed.”

(h) See it printed in full in Houston’s ” Const. Doc. of Can.” at p. 177.

422 THE B. N. A. ACT SEC. 92, S.-S. 1.

but this Act though applicable to all the colonies of the
Empire was retrospective, merely, in its operation.

In the next year, however, was passed the Colonial Laws
Validity Act, 1865, to many of the provisions of which we
have already referred. The Act is one of such importance,
that, although we have quoted nearly every section of it in
various parts of this book, we have given it a place in the
appendix, in order that it may be studied in its entirety.
Upon our present subject, the important clause is the 5th,
enacting that

Every representative legislature shall, in respect to the
fcoiony under its jurisdiction, have, and be deemed at all times
‘to have had, full power to make laws respecting the cvmtitution,
irers, and procedure of such legislature ; provided that such laws
shall have been passed in such manner and form as may from
time to time be required by any Act of parliament, letters patent,
order in council, or colonial law for the time being in force in the
colony.”

Such was the position of affairs at the time the B. X. A.
Act, 1867, was passed. What is the effect of this later
Imperial Act, in respect of the applicability, to the legisla-
tive bodies now existing, under it, in Canada, of this clause
of the Colonial Laws Validity Act, 1865.? We have already
discussed this question, to a slight extent, in reference to
the power of the Dominion parliament see ante, p. 280
and have pointed out that under the words “to make laws
respecting the constitution” no power is conferred by the
clause upon any colonial legislative body to enlarge the
sphere of its legislative authority. A fortiori, the fact that
by the B. N. A. Act, the field for the exercise, in Canada, of
colonial legislative power is exhaustively divided, into divi-
sions exclusive each of the other, clearly prevents any such
enlargement, by any one of our legislatures, of the sphere of
its authority. The word “constitution,” therefore, must be
limited to the defining how, within its allotted sphere, the
work of government, legislative and executive, is to be
carried on what is to be the machinery of government.

THE B. N. A. ACT SEC. 92, S.-S. 1. 423

Of “powers” and “procedure” we have already said (i) that,
as to the Dominion parliament and provincial legislatures,
this clause of the Colonial Laws Validity Act, 1865, is still in
force to enable them (save where, as by section 18, the B.N. A.
Act expressly limits its force) to define their powers, other
than legislative, and to regulate their procedure.

It has at length been authoritatively enunciated by the
highest tribunal in the Empire that the form of political
organization in Canada is truly federal ; that the B. N. A. ,
*-| Act had for its object “neither to weld the provinces ipto/ “1
* lone, nor to subordinate provincial governments to a centray
/authority, but to create a federal government in w^hich theyf
should all be represented, intrusted with the exclusive ad-
ministration of affairs in which they had a common interest, /

ih province retaining its independence and autonomy.”!! |/
lie word “federal” can have significance only as between*^ ‘
the parties to the federal union, and in no way can it have
any bearing upon our relations to the government of the
United Kingdom, although the agreement entered into by
the provinces required, for its legal validity, to be clothed
in the garb of an Imperial Act. While, however, the “con-
stitution” of the federal government was thus matter of
agreement between the provinces, and while the B. N. A.
Act confers no general power (j) upon the parliament of
^Canada to make alteration therein, no limitation would
have been proper in regard to the ” constitutions ” of the
provincial governments no restriction upon the manner in
which the work of government. should be carried on in rela-
tion to those matters in respect of which they retained their
“independence and autonomy” other than in regard to the
position of the executive head, designed to be the connect-
ing link, binding the provinces, through the Dominion
executive, to the home government and the Empire. Apart
from this new feature, the provincial ” constitutions ” were

(/) See notes to ss. 35 and 69, ante.

(j) Sp3cial power is given, for obvious reasons, in relation to elections,
etc. See s. 40, et scq.

424 THE B. N. A. ACT SEC. 92, S.-S. 2.

to continue as before the Union employed, of course, upon
, la, small range of matters and no withdrawal of the powers
/which had been conferred by the Colonial Laws Validity
Act was contemplated. By way of abundant caution, how-
ever, it was deemed advisable to enact that ” notwithstand-
ing anything in this Act” the provincial legislatures should
have still the power to amend the provincial constitutions,
save, for the reasons above indicated, ” as regards the office
of Lieutenant-Governor.”

We have, from time to time, in the notes to the various
sections relating to the provinces and their form of govern-
ment, pointed out alterations and amendments which have
been made under the authority of this sub-section. Under
it Manitoba has abolished her second chamber, and there -are
signs of a disposition on the part of some of the other pro-
vinces to follow suit to this lead on the part of our youngest
, province. There is no limit, however, to the extent to
which the “amendment” may proceed, save in so far as it
may be restrained by the exercise of the power of disallow-
ance. No particular form of provincial government is
“guaranteed” by our charter of government beyond this,
that its executive head must be the Queen, represented in
each province by a Lieutenant-Governor, appointed by the
federal executive, and through this representative she is
entitled to share in all provincial legislation.

An Act of the Ontario legislature conferring upon the
Lieutenant-Governor power to remit, by order in council,
any tine or penalty, to which any person might have become
liable through breach of any provincial law, was held (/)
not to offend against the exception not being an amend-
ment of the constitution “as regards the office of Lieutenant-
Governor.

2. Direct Taxation within the Pro-
vince in order to the raising of a Revenue
for Provincial ptirposes.

(k) Atty.-Genl. for Canada v. Atty.-Genl. (Out.), 20 P. B. 222 ; 19
O. A. R. 31. See notes to s. 58, ante, p. 305.

THE B. N. A. ACT SEC. 92, S.-S. 2, 3. 425

3. The borrowing of money on the
sole credit of the Province.

As to the other source of provincial revenue, see sub-
sections 5, 9 and 15 of this section 92, and section 102 et seq.,
and notes thereto. See also notes ‘ to sub-sections 3 and
4 of section .91, ante, p. 376.

The operation of the power conveyed by sub-section ‘2
is limited ” in order to the raising of a revenue for pro-
vincial purposes” but, in Dow v. Black (I), it was held
that this sub-section authorizes the imposition of ” direct
taxation for a local purpose upon a particular locality
within the province,” and is not to be limited to direct
taxation, ” only for the purpose of raising revenue for
general’ provincial purposes, that is, taxation incident on
the whole province for the general purposes of the whole
province.” In that case the tax necessary to pay a local
bonus was directly imposed by the Act impugned, but,
bearing in mind the principle of Hodge v. The Queen, as to
the delegation of power (see ante, p. 202), the decision in
Dow v. Black is sufficient warrant for the whole system of
municipal taxation now operative throughout Canada.
Had the construction contended for prevailed, the taxing
powers of a municipality would have been cut down to
license fees under sub-section 9 ; and direct subsidies from
the provincial governments must have been resorted to (m),
if indeed that method could have been upheld as being for
the general benefit and purposes of the whole province.

What is direct taxation ? This question has been under
consideration by the Judicial Committee of the Privy I
Council in several cases, the last being Bank of Toronto v./
Lambe (n), in which it was held that a tax irnpose^ttpon

(I) L. K. 6 P. C. 272.

(m) See, however, Lynch v. Canada N. W. Land Co., 19 S. C. R. 204,
in which Chief Justice Ritchie speaks of the power of taxation as being
essential to il municipal institutions.” See the notes to s. 92, s-s. 8,
post.

() 12 App. Gas. 575.

426 THE B. N. A. ACT SEC. 92, S.-S. 2, 3.

banks which carry on business within the province, vary-
ing in amount with the paid-up capital, and with the num-
ber of its offices, is direct taxation.

“First, is the tax a direct tax? For the argument of this
question, the opinions of a great many writers on political
economy have been cited But it must not be for-
gotten that the question is a legal one, namely, what the words
mean as used in this statute ; whereas the economists are always
seeking to trace the effects of taxation throughout the com-
munity, and are apt to use the words ‘ direct ‘ and ‘ indirect *
according as they find the burden of a tax abides more or less
with the person who first pays it. This distinction is illustrated
very clearly by the quotations from a very able and clear thinker,
the late Mr. Fawcett, who after giving his tests of direct and
indirect taxation, makes remarks to the effect that a tax may be
made direct or indirect by the position of the tax-payers or by
private bargains about its payment. Doubtless such renr-irks
have their value in an economical discussion. Probably it is true
of every indirect tax that some persons are both the first and
the final payers of it ; and of every direct tax that it affects
persons other than the first payers ; and the excellence of an
economist’s definition will be measured by the accuracy with
which it contemplates and embraces every incident of the thing
defined. But that very excellence impairs its value for the pur-
poses of the lawyer. The legislature cannot possibly have meant
to give a power of taxation valid or invalid according to its
actual results in particular cases. It must have contemplated
some tangible dividing line referable to and ascertainable by the
general tendencies of the tax and the common understanding of
men as to those tendencies.

“After some consideration, Mr. Kerr chose tlie definition of
John Stuart Mill as the one he would prefer to abide by. The
definition is as follows :

” * Taxes are either direct or indirect. A direct tax is one*
which is demanded from the very persons who it is intended orl
desired should pay it. Indirect taxes are those which are de-
manded from one person in the expectation and intention that
he shall indemnify himself at the expense of another. Such are
the excise or customs. The producer or importer of a commod-

THE B. N. A. ACT SEC.* 92, S.-S. 2, 3. 427

ity is called upon to pay a tax on it, not with the intention to
levy a contribution upon him, but to tax through him the con-
sumers of the commodity, from whom it is supposed he will
recover the amount by means of an advance in price.’

” It is said that Mill adds a term, that, to be strictly direct, a
tax must be general, and this condition was much pressed at the
bar. Their Lordships have not thought it necessary to examine
Mill’s works for the purpose of ascertaining precisely what he
does say on this point, nor would they presume to say whether,
for economical purposes, such a condition is sound or unsound,
but they have no hesitation in rejecting it for legal purposes.
It would deny the character of a direct tax to the income tax of
this country, which is always spoken of as such, and is generally
looked upon as a direct tax of the most obvious kind ; and it
would run counter to the common understanding of men on this
subject, which is one main clue to the meaning of the legisla-
ture.

” Their Lordships, then, take Mill’s definition, above quoted,
as a fair basis for testing the character of the tax in question,
not only because it is chosen by the appellants’ counsel, nor
only because it is that of an eminent writer, nor with the inten-
tion that it should be considered a binding legal definition, but
because it seems to them to embody with sufficient accuracy for
this purpose an understanding of the most obvious indicia of
direct and indirect taxation, which is a common understanding,
and is likely to have been present to the minds of those who
passed the Federation Act.

” Now, whether the probabilities of the case or the frame of
the Quebec Act are considered, it appears to their Lordships that
the Quebec Legislature must have intended and desired that the
very corporations from whom the tax is demanded should pay
and finally bear it. It is carefully designed for that purpose.
It is not like a customs’ duty, which enters at once into the price I
of the taxed commodity. There the tax is demanded of the |
importer, while nojbody expects or intends that he shall finally
bear it. All scientific economists teach that it is paid, and
scientific financiers intend that it shall be paid, by the consumer ;
and even those who do not accept the conclusions of the econom-
ists maintain that it is paid and intended to be paid by the

428 THE B. N. A. ACT SEC. 92, 8.-S. 2, 3.

foreign producer. Nobody thinks that it is, or intends that it
shall be, paid by the importer from whom it is demanded. But
the tax now in question is demanded directly of the bank, appar-
ently for the reasonable purpose of getting contributions for
provincial purposes from those who are making profits by pro-
vincial business. It is not a tax on any commodity which the
bank deals in and can sell at an enhanced price to its customers.
It is not a tax on its profits, nor on its several transactions. It
is a direct lump sum to be assessed by simple reference to its
paid-up capital and its places of business. It may possibly
happen that in the intricacies of mercantile dealings the bank
may find a way to recoup itself out of the pockets of its Quebec
customers. But the way must be an obscure and circuitous
one. The amount of recoupment cannot bear any direct relation
to the amount of tax paid, and, if the bank does manage it, the
result will not improbably disappoint the intention and desire of
the Quebec government. For these reasons, their Lordships
hold the tax to be ‘ direct taxation.’ ‘

With this description of direct taxation may be com-
pared that given by the same Committee in Attorney-
General (Quebec) v. Reed (o), where Mill’s definition was
also relied on in support of the holding that a stamp duty/
on “exhibits,” filed in the course of judicial proceedings, is’
not ” direct ” taxation, and that the Act imposing such a
duty was therefore ultra vires of the Quebec legislature :

” Can it be said that a tax of this nature, a stamp duty in
the nature of a fee payable upon a step of a proceeding in the
administration of justice, is one which is demanded from the
very persons who it is intended or desired should pay it ? It
must be paid in the course of the legal proceeding, whether that
is of a friendly or of a litigious nature. It must, unless in the
case of the last and final proceeding after judgment, be paid
when the ultimate termination of those proceedings is uncertain ;
and from the very nature of such proceedings until they termi-
nate, as a rule, and speaking generally, the ultimate incidence of
such a payment cannot be ascertained. In many proceedings of
a friendly character, the person who pays it may be a trustee, an

(-) 10 App. Gas. 141.

J

THE B. X. A. ACT SEC. 9JS, S.-S. 2, 3. 429

administrator, a person who will have to be indemnified by some-
body else afterwards. In most proceedings of a contentious
character, the person who pays it is a litigant, expecting or
hoping for success in the suit, and whether he or his adversary
will have to pay it in the end must depend on the ultimate
termination of the controversy between them. The legislature
in imposing the tax cannot have in contemplation, one way or
the other, the ultimate determination of the suit, or the final
incidence of the burden, whether upon the person who had to
pay it at the moment when it was exigible, or upon anyone -else.
Therefore it cannot be a tax demanded ‘ from the very persons
who it is intended or desired should pay it ‘; for, in truth, that is
a matter of absolute indifference to the intention of the legisla-
ture. And, on the other hand/so far as relates to the knowledge
which it is possible to have in a general way of the position of
things at such a moment of time, it may be assumed that the
person who pays it is in the expectation and intention that he
may be indemnified ; and the law which exacts it cannot assume
that that expectation and intention may not be realized. As in
all other cases of indirect taxation, in particular instances, by
particular bargains and arrangements of individuals, that which
is the generally presumable incidence may be altered. An im-
porter may be himself a consumer. Where a stamp duty upon
transactions of purchase and sale is payable, there may be
special arrangements between the parties determining who shall
bear it. The question whether it is a direct or indirect tax can-
not depend upon those special events which may vary in par-
ticular cases ; but the best general rule is to look to the time of
payment ; and if at the time the ultimate incidence is uncertain,
then, as it appears to their Lordships, it cannot, in this view,
be called direct taxation within the meaning of the second sec-
tion of the ninety-second clause of the Act in question.”

The legislature of Quebec passed, in 1875, an Act (39
Vic. c. 7) providing for the issue of licenses to insurance
companies doing business in the province. Nothing was to
be paid on the issue of the license, but, on the issue of any
policy by an insurance company, stamps were to be affixed
to an amount varying with the amount of the premium.
This was held by the Judicial Committee of the Privy

430 THE B. N. A. ACT SEC. 92, S.-S. 2, 3.

Council in Attorney-General v. The Queen Insurance
Company (p), to be not a license, but a stamp duty on
policies. In the latter view it was held to be indirect taxa-
tion. In arriving at the meaning to be attributed to the
words ” direct taxation ” the Committee point out that
they may have a technical (economical or legal) or popular
*j meaning. No attempt is made to decide this question,
I because it was held that, by whichever key interpreted, a
I stamp duty, such as was imposed by the Act, was not direct
taxation. ^

The decision of the Supreme Court of Canada, in Sev-
ern v. The Queen (q), must upon this point be considered
I overruled. It was held in that case that a license fee
required to be paid by brewers, under an Act of the legis-
lative assembly of Ontario, was indirect taxation; applying,
however, the considerations dwelt upon by the Privy
Council, particularly in Bank of Toronto v. Lambe (r), such
.a license fee must be held to be direct taxation. It is
intended to be paid by the very person on whom it is
imposed, and if that person manages to recoup himself, it
must be by some circuitous method, the amount of recoup-
ment on each sale of beer bearing no relation whatever to
the tax imposed. Even before Bank of Toronto v. Lambe
was decided the Judges of the Supreme Court seem to have
recognized that the authority of Severn v. The Queen had
been seriously impugned. See, however, the observations
of Gwynne, J., in Molson v. Lambe (s); but, so far as
appears from the report of this case, Bank of Toronto v
Lambe was not referred to. The holding, too, of the
Supreme Court that such a license fee upon brewers was a
” regulation of trade and commerce ” cannot be supported,
for reasons also set out in Bank of Toronto v. Lambe, as well
as in earlier cases to which reference has already been
made in the notes to sub-section 2 of section 91.

( p) 3 App. Ca.s. 1090. (r) 12 App. Gas. 575.

(q) 2 S. C. R. 70. (*) 15 S. C. R. at pp. 288-9.

THE B. N. A. ACT SEC. 92 ; S.-S. 2, 3. 431

In Longueuil Navigation Co. v. Montreal (t), an Act of
the Quebec legislature authorizing the city of Montreal to
impose an annual tax on ferrymen and ferry companies,
was held to be intra vires. See notes to section 91, sub-
section 10, ante, p. 383.

Referring to the other sources of provincial revenue,
and to the various institutions which a province has to
maintain, the question arises, are the powers of provincial
legislatures under those sub-sections limited to ” direct ” i
taxation ? In Attorney-General (Quebec) v. Reed (u),
above referred to, the Judicial Committee of the Privy
Council declined to determine ” whether, if a special fund
had been created by a provincial Act for the maintenance
of the administration of justice in the provincial courts,
raised for that purpose, and not available as general
revenue for general provincial purposes, in that case the
limitation to direct taxation would still have been applic-
able.” The point was considered by Mr. Justice Gwynne in
the same case when before the Supreme Court of Canada
{v). The . contention was, that under sub-section 15 of
section 92, ” the constitution, maintenance and organiza-
tion of provincial courts ” indirect taxation might be re-
sorted to, and that, therefore, a stamp duty on ” exhibits ”
might be imposed under the authority of a provincial Act.

Mr. Justice Gwynne says :

” The express provision made by item 2, which, while it
authorizes the legislatures to make laws in order to the raising
of a revenue for provincial purposes by taxation, limits the ex-
ercise of the authority thus conferred to direct taxation, very
clearly excludes, in my judgment, the power of raising a revenue
by any species of taxation other than by direct. . . . That
the maintenance of provincial courts and the administration of
justice are provincial purposes, there can be no doubt. They are
therefore comprehended within the purview of item 2 of section
92, which in express terms prescribes direct taxation as the mode

(t) 15 S. C. R. 566. (u) 10 App. Gas. 141.

(v) 8 S.C. R. 408; at p. 431.

432 THE B. N. A. ACT SEC. 92, S.-S. 2, 3.

of taxation to be adopted for raising revenue for provincial pur-
poses, so that upon the principle of expression facitcessare taciturn,
there can be no such implied power involved in this item 14, as
is insisted upon ; moreover, if the contention were sound, then
upon the same principle they could equally pass an Act imposing
a special tax of an indirect character for the payment of provincial
officers under a power implied under item 4 of this 92nd section,
and another Act imposing another special tax, also of an indirect
character, to defray the expense attending the establishment,
maintenance, and management of public and reformatory prisons,
under the powers conferred by item 6, and another to defray the
expense attending the establishment, maintenance, and manage-
ment of hospitals, asylums, etc., under the powers conferred by
item 7 ; and so the effect would be that this im-
plied power of raising revenue by indirect taxation, which, it is
contended, the legislatures have, being exercised, as it might be
if they have the power, to raise sufficient revenue to defray all
the expenses of the government and legislatures in respect of all
the several matters under their control and jurisdiction, it would
be quite unnecessary for them to exercise the power conferred by
item 2, raising by direct taxation the revenue for provincial pur-
poses, or to draw upon the revenue created by the subsidy paid
by the Dominion, or by sale of the public property, or other in-
come arising therefrom, or from the assets assigned to each
province. Such a contention appears to me to involve so
palpable a reductio fid absurclum, as to carry with it its own refu-
tation ; and indeed the judgment of the Privy Council in
Attorney-General (Quebec) v. The Queen Insurance Company,
in effect, decides that the provincial legislatures cannot, by any
Act of theirs, authorize the raising a revenue by any mode of
taxation other than direct.”

That the Privy Council did not consider the question
determined by any previous decision of their own is
apparent from the language of the judgment of that tribunal
when the case came before them. The question is touched
upon in other Canadian authorities for example, in Regina
v. Taylor (w), where Mr. Justice Wilson afterwards Chief
Justice Sir Adam Wilson says :
(w) 36 U. C. Q. B. 183, at p. 201.

THE B. N. A. ACT SEC. 92, S.-S. 2, 3. . 433

” The power which is vested in Ontario to raise money by
direct taxation excludes, of course, as a general rule, the right
to raise it by indirect taxation. But, by means of the powers,
numbers 8 and 9, relating to licenses and to municipal institu-
tions, it is plain that Ontario may, and does, by virtue of these
powers, raise very large sums of money by indirect taxation.
Power No. 2 must be read as qualified in its absoluteness, there-
fore, by powers No. 8 and 9.”

In Leprohon v. Ottawa (x\ the late Chancellor Spragge
expressed the opinion that a provincial legislature cannot
confer upon a municipality of its own creation power to do
what it cannot itself do ; and if this be sound law, the
powers of municipal corporations in the matter of taxation
must be limited to direct taxation, if the powers of the
province are so limited.

As to the powers under sub-section 9 of section 92, it
may be said that the judgment of the Privy Council in
Bank of Toronto v.Lambe establishes that license fees are j
“direct” taxation; so that the controversy would appear!
to be limited to those sub-sections of section 92 (y), which
give provincial legislatures power to provide for the main-
tenance of certain institutions, and as to these it is sub-
mitted, the same limitations exist. The raising of money
to maintain these institutions courts, prisons, hospitals,
etc. would be for ” provincial purposes,” as interpreted in
Dow v. Black (z).

Following Atty.-Genl. v. Reed, the Court of Queen’s
Bench in Manitoba held in Plummer Wagon Co. v. Wilson
((/), that the then existing provincial statutes requiring
payment of fees by means of law stamps on proceedings in
that court were ultra vires. Thereupon, acting upon the
distinction suggested by the Committee, the Manitoba legis-

(x) 2 O. A. K. 522 ; at p. 520.
(y) s-ss. 6, 7 and 14.
(z) L. K. 6 P. C. 272; see ante, p. 425.
(a) 3 Man. L. E. 68.
CAN. CON. 28

434 THE B. N. A. ACT SEC. 92, S.-S. 2, 3.

lature passed an Act creating a special fund “solely for the
maintenance of the administration of justice in the courts
of this province,” to which fund the fees payable in stamps
upon legal proceedings were appropriated. This Act was
impugned, and in Dulmage v. Douglas (6), was upheld by
Mr. Justice Dubuc, but, on appeal to the full court, this
decision was reversed and the statute pronounced ultra
vires. In the opinion of the court, the only exception to
the limitation laid down in this sub-section 2 is that
expressed in sub-section 9, but as the judgment of thel
Privy Council in Bank of Toronto v. Lambe (c), in effect)
holds that license fees are ” direct taxation,” no doubt tha
Manitoba Court would agree with the view we have ven-j
tured to express, that there is no exception to the rule laic^
down in this sub-section 2. The Manitoba legislature sur-
mounted the difficulty by 49 Vic. c. 51, declaring law stamps
to be a direct tax, and making good this declaration by en-
acting that such fees, so payable in stamps, are not to form
any part of the costs of an action taxable between party
and party, but are, in fact, to be borne once for all by the
party actually paying them in the first instance. This Act
was declared intra vires by the full court in Crawford v.
Duffield (cl).

We have already referred to that part of the judgment
in Bank of Toronto v. Lambe which lays it down that the
powers of taxation vested in the provincial legislatures by
this sub-section are not to be curtailed, because possibly
they may be abused or so exercised as to prejudicially affect
corporations and institutions existing under Dominion
laws (e). See also notes to section 91, sub-section 8, for a
further reference to the case of Leprohon v. Ottawa (/), in

(b) 3 Man. L. E. 562 ; 4 ib. 495.

(c) 12 App. Gas. 575.

(d) 5 Man. L. E. 121.

(e) See notes to s. 91, s-s. 15.

(f) 2 O. A. E. 522 ; see also the note to the next sub-section.

THE B. N. A. ACT SEC. 92, S.-S. 4. 435

which it was held that provincial legislatures have no
power to tax the salaries of members of the executive staff
of the Dominion.

With regard to the meaning of the expression, ” within
/ the province,” we may again refer to Bank of Toronto v.
Lambe, which decides that it is not necessary” that the
persons to be taxed under a provincial law be domiciled, or
even resident, in the province. It was urged in that case
that the Bank of Toronto was an Ontario corporation,
having its domicile in Toronto, and that the taxation must
therefore fall on persons not within the province of
Quebec ; but to this it was answered : ” Any person found
within the province may be legally taxed there. This
Bank is found to be carrying on business there, and on ,
that ground alone it is taxed.”

4. The establishment and tenure of
Provincial offices and the appointment
and payment of Provincial officers.

This sub-section is the guarantee for the continuance of
“responsible government.” It covers the entire executive
department of provincial government with the sole excep-
tion of the Lieutenant-Governor, and of those judges
mentioned in section 96 of the B. N. A. Act and ensures
that the people of the province, through the provincial
assembly, shall always be able to make the members high
and low of the provincial executive staff feel responsi-
bility. In the third chapter of this book we have
endeavored to make clear s the intimate connection which
exists between ” tenure of office ” and the power to ” with-
hold supplies,” and have there pointed out that the grant to
colonial legislatures of the latter power necessarily carried
with it that the tenure of office in the colony should be at
their ” pleasure.”

With reference, however, to the existence of dual gov-
ernment in Canada, it has been laid down (g) that the
(g) 2 O. A. R. 522.

436 THE B. N. A. ACT SEC. 92, S.-S. 4.

provincial legislatures cannot impose burdens e.g., a muni-
cipal income tax upon the ” instruments ” by which the
Dominion government is carried on. Whether this judg-
ment can stand in the face of Bank of Toronto v. Lambe (h)
is, perhaps, questionable. The impossibility of applying
the principle, conversely, to relieve provincial officers from
the burden of federal tariffs rather tends to weaken the c1>
inconvenienti argument.

It has been held that a provincial legislature is within
its powers in appointing officers entrusted with the enforce-)
ment of The Canada Temperance Acts of 1864 (i) and 1878
(j) in municipalities where either of them had been
adopted. In the last case the ground for the decision is
thus put by the present Chancellor of Ontario :

” The general law as to prohibition respecting all Canada,
which can only be enacted by the Dominion, being localized by
municipal suffrages, its enforcement becomes also a matter of
local importance in the province within the meaning of the
B. N. A. Act, section 92, item 16. The enforcement of the Act
in the adopting municipalities involves questions of local police
regulation. For the purpose of ensuring uniformity and efficiency
of action, the prosecution of offenders may be properly relegated
to the hands of provincial officers, for the appointment and pay-
ment and governance of whom laws may be made under the
B. N. A. Act, section 92, item 4. The expense of carrying the
Act into effect within the adopting county is a burden to be
borne by the ratepayers of that locality. So that the legislation
now questioned may also fall within the scope of the B. N. A.
Act, section 92, item 8, as pertaining to municipal institutions
within the province.”

With much misgiving, we venture to question the cor-
rectness of these decisions. The ” local option ” character

(h) 12 App. Gas. 575.

(?) License Commissioners v. Prince Edward, 26 Gr. 452 ^r Spragge,
C., (1879).

(j) License Commissioners v. Frontenac, 14 O. K. 741 per Boyd, C.,,
(1887).

THE B. N. A. ACT SEC. 92, S.-S. 5. 437

of the Canada Temperance Act its localization by muni-
cipal suffrages was much pressed in argument in Russell
v. The Queen, as shewing the subject matter of that Act to
be within the legislative competence of a provincial legis-
lature only. The argument was rejected by the Privy
Council, and it appears to us that, so long as that decision
stands, the enactment of laws for the enforcement of the
provisions of that Act cannot be said to be a matter of
a merely local or private nature in the province. Laws
“in relation to” any subject matter must come in their
entirety from that legislature to which the subject matter
is committed. It is the question over again of the necessary
connection between legislature and executive. It is, of
course, open to the Dominion parliament to utilize existing
provincial machinery (&), or to confer upon “boards” or
bodies of provincial creation powers and authorities in
relation to the enforcement of Dominion laws, but, qupofl
the duties imposed by Dominion legislation, the members
of the municipal bodies or ” boards ” are not provincial
officers. The above cases, however, did not involve con-
sideration of the power of the Dominion legislature to
delegate its authority or to adopt existing institutions, but
of the power of a provincial legislature to supplement
Dominion legislation upon a matter admittedly within the
exclusive ken of the latter, by the appointment of an
executive staff to carry it out.

5. The Management and Sale of the
Public Lands belonging to the Province
and of the timber and wood thereon.

u It must always be kept in view that, wherever public land
with its incidents is described as ‘ the property of ‘ or as ‘ belong-
ing to’ the Dominion or a province, these expressions merely
import that the right to its beneficial use, or to its proceeds, has

(k) See ante, p. 417, as to their adoption of provincial laws as to
jurors; and ante, p. 232, as to the trial of (Dominion) election petitions
by provincial courts.

438 THE B. X. A. ACT. SEC. 92, S.-S. 6, 7.

been appropriated to the Dominion or the province, as the case
may be, and is subject to the control of its legislature, the land
itself being vested in the Crown. Per Lord Watson in St.
Catherines Milling Co. v. The Queen (I).

The case from which the above extract is quoted is a
decision that the ” lands reserved for the Indians ” men-
tioned in sub-section 24 of section 91, become, when dis-
encumbered of the Indian usufructuary interest, ” public
lands belonging to the province,” or, perhaps we should
say, that they are always such, subject to the encum-
brance of that Indian interest.

The matter, however, of public assets, revenue pro-
ducing and otherwise, will be fully considered in the notes
to the group of clauses of this Act, which deal more full}”
therewith 102, et seq.

As to the position of Manitoba and the North- West
Territories in reference to the public lands within those
areas we shall have to speak in Part IV. of this book.

6. The Establishment, Maintenance
(i) and Management of Public and Ke-
formatory Prisons in and for the Pro-
vince.

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

(i) “Maintenance.” See note to sub-section 2 of sec-
tion 92, where reference is made to the query suggested
by the Privy Council in Attorney-General of Quebec v.
Reed (m) as to the power of a province to maintain
prisons, hospitals, etc., and courts by “indirect taxation.”

(I) 14 App. Cas. 46. (m) 10 App. Gas. 141.

THE B. N. A. ACT SEC. 92, S.-S. 8. 439

S. Municipal Institutions in the Pro-
vince.

It must be admitted that the authorities are in a very/
unsatisfactory state as to the precise scope of this sub-sec-
tion, and as to the powers intended to be thereby conferred
upon provincial legislatures. The main question is one that
goes to the very root, and it has been brought prominently
into discussion in connection with that most prolific cause
of litigation the traffic in intoxicating liquor. In one of I
the earliest cases (n) which arose in Ontario in reference to
the power of a provincial legislature to authorize municipal
bodies to restrict the traffic, the late Chief Justice Richards
intimated his opinion that the Imperial parliament, in
passing the B. N. A. Act, “on the suggestion of, and on
conference with the delegates from the various provinces ”
must have intended to empower those provinces to establish
municipalities which ” would possess the same powers asj
those which were then in existence, under the same name,
in the province ” i.e., in that part of (old) Canada, formerly ‘
known as Upper Canada, and now forming the province of
Ontario. To the like effect, the court of final resort in
Quebec held (o), in 1883, that the state of things existing
in the provinces at the time of Confederation, and more
particularly that which was recognized by law in all or
most of the provinces, is a useful guide in the interpreta-
tion of the meaning attached by the Imperial parliament to
indefinite expressions employed in the B. N. A. Act. At
the time of Confederation, the right to prohibit the sale of
intoxicating liquors was possessed by municipal authorities
under the laws in force respecting municipal institutions in
both parts of the province of Canada, and in Nova Scotia ;
and the court held that in consequence it should be deemed
to be included within the term ” municipal institutions ” in

(n) Slavin v. Orillia, 36 U. C. Q. B. 159 ; sea ante, p. 359.

(o) Suite v. Three Rivers, 5 Leg. News, 330 ; 2 Cart. 280 ; see ante,
p. 362.

440 THE B. N. A. ACT SEC. 92, S.-S. 8.

this sub-section. In the opinion of the Court, the provin-
cial legislatures have the power for the purposes of
” municipal institutions ” to pass a prohibitory liquor law,
applicable to all municipalities within the province. In
delivering the judgment of the court Mr. Justice Ramsay
thus deals with the question of the meaning to be given to
the term ‘^nunicipal institutions ” :

” It may be at once conceded that the power to pass pro-
hibitory liquor laws is not essential to the existence of municipal
institutions, and that consequently in a very restricted reading
of sub-section 8, it would not justify the local legislature in pass-
ing a prohibitory liquor law. But, it may fairly be asked,
whether it was the intention of the Imperial parliament in an
enumeration of this sort to confine ‘ municipal institutions ‘ to
those matters only which are of the -essence of municipal insti-
tutions ? If such was the intention of parliament, a wide field
for speculation was left open, or it was contemplated to restrict
municipal institutions within very narrow limits. It wouldl
seem, however, we have not to determine what institutions are)
essential to municipal existence in the abstract, but the meaning!
of the term at the time of Confederation.”

Reference is made in the judgment to the fact that, in
New Brunswick, prior to Confederation, no statute con-
ferred any such powers upon municipal corporations, but
their existence in ” the two great provinces of Confedera-
tion and one of the small ones ” was, in the opinion of the
court, sufficient to include them within the powers intended
to be conferred under the expression ” municipal institu-
tions ” in this sub-section 8.

The Court of Appeal for Ontario has lately had
occasion to review the earlier decision of Chief Justice
Richards, and, as we have before intimated, it was held ( p) ;
that a provincial legislature can empower a municipal
body to pass a prohibitory by-law, because, at the date of
Confederation, municipalities had that power in Upper j

(p) He Local Option Act, 18 O. A. R. 572; see per Maclennan, J.A.,
at p. 596.

THE B. N. A. ACT SEC. 92, S.-S. 8. 441

Canada, now Ontario, thus confirming the opinion ex-
pressed in the earlier case.

In both Ontario and Quebec, therefore, this must be
taken as law, that whatever powers municipal bodies hadj I
been invested with prior to the Union, those powers canff
now be conferred upon them by a provincial Unislatiire-
that the term ” municipal institutions ” must be taken
cover all such powers.

In the case to which we have last referred, an admis-
sion is made to much the same effect as that made by Mr.
Justice Ramsay in the Quebec case “that there is no
inherent connection between the liquor traffic and muni-
cipal institutions ” ; but this is qualified by the statement
that there is as to Ontario at least a constitutional con-
nection, and that, in fact, in all the provinces there was the
power to regulate the traffic, in some to even prohibit it,
within the bounds of the municipality.

It must not be forgotten, however, that the pre-Con-
federation. provinces had all the powers of colonial self-
government ; their legislatures could make laws in relation
to all matters not of Imperial- concern, or governed by
Imperial legislation ; there was then no sub-division of the
field between co-ordinate legislative bodies within the
colony, and upon the principle of The Queen v. Burah, and
subsequent cases (</), these pre-Confederation legislatures
could, from time to time, invest municipal bodies with such
of their own powers as to them seemed fit.

The late Mr. Justice Dunkiii adverts to this in Cooey v.
Brome (r) in the following terms :

” Nor is there wanting a sense of the words ‘ municipal
institutions in the province ‘ which would extend them also over
ground assigned exclusively to parliament, and notably would
limit its trade and commerce powers. Under legislation not
federally limited in that behalf, all sorts of powers are of course

(q) See ante, p. 177, et seq.

(/) 21 L. C. Jur. 182, 2 Cart. 385 ; see ante, p. 361.

442 THE B. N. A. ACT SEC. 92, S.-S. 8.

more or less delegated to municipal bodies whenever convenience
may seem so to require. But for a legislature of strictly limited
jurisdiction, nothing is clearer than that it can delegate no
powers beyond those it can directly exercise. Our legislature
can delegate no power of regulation of trade and commerce, nor
over fisheries, nor weights and measures, nor anything else
(matter of merely parliamentary legislation. Each provincial
/legislature alone can create municipalities properly so-called ;
establish their functionaries, and assign them their proper duties
f and their powers but always within the limits of its own.
Whether or not it can render them incapable of other duties and
powers, to be delegated by parliament, is a question that need
not here be considered. Our legislature, as will presently be
seen, has been careful to declare them not so. And as to all
powers not of provincial competency, so to speak, which they
may hold under antecedent delegation of the unlimited legisla-
ture of the late province of Canada, these can be resumed or
altered by parliament alone. As being exercised by municipali-
ties, they may be styled in a certain sense municipal. But such
sense is not that of the Union Act ; nor even as mere matter of
presumption, prim a facie, is it that of provincial legislation under
authority of the Union Act.”

and the same view is very’ clearly put by Mr. Justice Bur-
ton in Re Local Option Act (s) :

” It does not suggest itself to my mind as at all conclusive
in favor of the power of the Local Legislature to deal with the
subject of prohibition under the words ‘ municipal institutions ‘
that provisions in reference to that subject were, at the time of
the passing of the Confederation Act, to be found in our own
municipal Acts, and had been so for many years. It must not
be forgotten that the legislature of the old province of Canada,
which passed those Acts, had plenary powers of legislation,
. in fact, all the powers which are now distributed be-
tween the parliament of the Dominion and the legislatures of
the provinces. Having that power, it was clearly competent to
the legislature to confide to a municipal council or any other

() 18 O. A. R. at p. 585. See also per Spragge, C. in Leprohon v.
Ottawa, 2 O. A. R., 5 ’22, ante, p. 380.

THE B. N. A. ACT SEC. 92, S.-S. 8. 443

body of its own creation, or to individuals of its selection,
authority to make by-laws or resolutions as to subjects specified
in the enactment with the object of carrying it into effect “;
but, nevertheless, by reason of the constitutional connec-
tion above referred to, he gave the term “municipal insti-
tutions ” the wide scope we have mentioned.

As indicated in the above cases in Ontario and Quebec,
the municipal institutions in the various pre-Confederation
provinces were widely dissimilar (), ranging from the (for
those days) very complete system of Upper Canada to the
very incomplete and primitive methods of local government
in vogue in New Brunswick. In fact, the maritime pro-
vinces can hardly be said to have had any system of muni-
cipal government, and the systems of Upper and Lower
Canada were by no means identical. Now, admitting, for
the sake of the argument, that the term “municipal institu-
tions” is to be construed according to the meaning attached
to it in the minds, not of ^ those by whom but of those for
whom it was passed, it is not conceivable that this Imperial
Act is to receive a construction geographically variable (u).
The decisions above noted, therefore, put the Imperial par-‘
liament in the peculiar position of having used, as to all the
provinces, a phrase which, at the date of Confederation, had
a different meaning in the different provinces, intending,
without expressly saying so, that the phrase .should bear
the meaning attached to it in one particular province, with-
out indicating which.

It seems to us that such an interpretation must be put
upon this sub-section as will obviate these difficulties.
“Municipal institutions” is but another form of expression

(t) See Slavin v. Orillia (Ontario), Suite v. Three Rivers (Quebec),
Keefe y. McLennan (Nova Scotia), and Reg. v. Justices of Kings (New
Brunswick).

(u) ” The Act placed the constitutions of all the provinces on the same
level, and what was true with respect to the lagislature of Ontario had
equal application to the legislature of New Brunswick.” Per Lord Wat-
son, in Liquidators v. Receiver-General^Times L.R. Vol. VIII., p. 677.

THE B. N. A. ACT SEC. 92, S.-S. 5.

for local self-government by boards or corporate bodies,
entrusted with powers of administration and, to some
extent, of legislation but delegated powers merely. Irre-
spective of detail this was a familiar phase of political
organization. The essentials of a municipality would appear
to be, first, territorial limitation ; and, secondly, the organi-
zation therein of the executive and legislative machinery
and staff for the administration of local affairs. Under a
“Unitarian” form of government power all flows from the
one source, but under a dual government power over
any given subject matter must come from, and the mode of
/its exercise be regulated by, that legislature which has
/itself power over the particular subject matter. Given the
municipalities “instituted” under provincial legislation, the
Dominion parliament as well as the provincial legislatures
can confer on such municipalities powers of local self-gov-
ernment, each in relation to matters within its own com-
petence (v). The vast majorities of the powers exercisable
by municipal bodies throughout Canada are conferred by
the provincial legislatures, because nearly all those matters
which touch the daily life of a man, and regulate his rights
and duties as a citizen of a municipality, are comprehended
within some one or other of the various sub-sections of sec-
tion 92. Very few, if any, of the cases which have arisen
under the B..N. A. Act, touching the powers of municipal
bodies, depend upon a wider scope being given to this sub-
section 8, than we have given it. Sub-sections 2, 7, 9, 10, 13,
14, 15 and 16 of section 92, suffice to sustain the exercise of
municipal powers in all cases in which it has been ques-
tioned (w) ; but that a provincial legislature cannot delegate
‘ to a municipal or other body created by it, power over any
subject matter not, by the B. N. A. Act allotted to such
provincial legislature, is a view which seems to be forced

(v) The Canada Temperance Act is an example of power conferred
and duties imposed by Dominion legislation.

(w) These cases have all been noted under these various sub-sections.

THE B. N. A. ACT SEC. 92, S.-S. 9. 445

upon us by the exhaustive character of the division effected;
by that Act, and the exclusive character of the jurisdiction]
conferred upon our legislative bodies, Dominion and pro-j
provincial.

Under this sub-section we should, perhaps, note the case
of Reg. ex rel. McGuire v. Birkett (x), in which it has lately
been held that a provincial legislature has the exclusive
right to designate the judicial officer by whom controverted
municipal election cases are to be determined. This is a
matter clearly relating to municipal organization, and has
no relation to the nature of the powers to be exercised by
municipal bodies or officers thereof. We note it here rather
than under sub-section 14, because of the expression of
opinion by the Privy Council in Valin^v. Langlois (y) that
the trial of election cases does not “quite plainly” come
within “the administration of justice in the province.”^

9. Shop, Saloon, Tavern, Auctioneer,
and other Licenses in order to the raising
of a, “RpvpTn-m for Provincial, local, or
municipal purposes.

The scope of this sub-section is limited by the last
clause, in order to the raising, etc. (z\ and in Russell v.
The* Queen (a), it was held that the. Canada Temperance
Act, is not an infringement on the powers of the provincial
legislatures under this sub-section :

” The Act in question is not a fiscal law ; it is not a law for
raising revenue ; on the contrary, the effect of it may be to
destroy or diminish revenue ; indeed, it was a main objection to
the Act, that in the city of Fredericton it did, in point of fact,

(x) 21 O.K. 162.

(y) 5 App. Gas. at p. 119.

(z) Sse Three Kivers v. Suite, 5 Leg. News 330, 2 Cart. 280. This
does not conflict with the views expressed in earlier cases in Ontario that
this sub-section does not exhaust the powers of a provincial legislature in
relation to the liquor traffic.

(a) 7 App. Gas. 829.

446 THE B. N. A. ACT SEC. 92, S.-S. 9.

diminish the sources of municipal revenue. It is evident, there-
fore, that the matter of the Act is not within the class of sub-
jects No. 9, and consequently that it could not have been passed
by the provincial legislature by virtue of any authority conferred
upon it by that sub-section.”

Referring to what we have said in the notes to sub-
section 8, it is to be noticed that in Russell v. The Queen
the effect of sub-section 8 upon the questions there under
consideration is not in any way touched upon (b). The
previous legislation of New Brunswick on the subject of
tavern licenses was looked at merely as the exercise of
power under this sub-section 9 ; and it was held that the
mere fact that Dominion legislation upon any matter
within its legislative competence might prejudicially affect
the revenue derivable from license fees imposed under this
sub-section 9, would in no way invalidate such Dominion
legislation (c).

In the notes to sub-section 2 of section 92 reference
was made to the case of Attorney-General_( Quebec) v. The
Queen Insurance Co. (d), in which a license tax (so called)
imposed upon insurance companies, payable not upon the
taking out of the license, but upon t|ie issue of policies,
and to an amount depending upon the amount of premium
payable upon a policy, was held not to be a license tax at
all, but a stamp duty :

‘” Now, the first point which strikes their Lordships, and will
strike every one as regards this Licensing Act, is that it is a com-
plete novelty. No such Licensing Act has ever been seen before.
It purports to be a Licensing Act, but the licensee is not com-
pelled to pay anything for the license, and, what is more singular,
is not compelled to take out the license because there is no penalty
at all upon the licensee for not taking it up ; and, further than
that, if the policies are issued with the stamp, they appear to be
valid, although no license has been taken out at all. The result,

(b) See Re Local Option Act, 18 O. A. R. 572.

(c) See ante, p. 213, et seq.

(d) 3 App. Cas, 1090.

THE B. N. A. ACT SEC. 92, S.-S. 9. 447

therefore, is, that a license is granted which there are no means
of compelling the licensee to take, and which he pays nothing
for if he does take; which is certainly a singular thing to be
stated of a license. They say on the face of the statute, ” the price
of each license shall consist,” and so on. But it is not a price
to be paid by the licensee. It is a price to be paid by anybody
who wants a policy, because, without that, no policy can be ob-
tained, It may be that the company buys the adhesive stamps,
and affixes them ; or it may be that the assured buys the adhesive
stamps and affixes them, or pays an officer of the company the
money necessary to purchase them and affix them ; but whoever
does it complies with the Act.

Another observation which may be made upon the Act is
this : that, if you leave out the clauses about the license,
the effect of the Act remains the same. It is really nothing
more nor less than a stamp Act if you leave out these clauses.
If you leave out every direction for taking out a license, and
everything said about the price of a license, and merely leave
the rest of the Act in, the government of the province of
Quebec obtains exactly the same amount by virtue of the statute
as it does with the license clauses remaining in the statute. The
penalty is on the issuing of the policy, receipt or renewal ; it is
not a penalty for not taking out the license. The result there-
fore is this, that it is not in substance a license Act at all. It
is nothing more or less than a simple stamp Act on policies
with provisions referring to a license, because it must be pre-
sumed, the framers of the statute thought it was necessary in
order to cover the kind of tax in question with legal sanction.,
that it should be made in the shape of the price paid for a
license.”

In the notes to sub-section 2 (ante, p. 430) will also
be found a reference to the cases involving the question
whether these license fees are to be considered direct or in-
direct taxation. See Pigeon v. The Recorder’s Court (e),
where the effect of the decision in Bank of Toronto v.
Lambe (/), seems to have been considered to be, in effect,
that all these license fees are direct taxation. It is to be

(e) 17 S. C. R. 495. (/) 12 App. Gas. 587.

448 THE B. X. A. ACT SEC. 92, S.-S. 10.

noted, however, that in Bank of Toronto v. Lambe, the
Committee speak of “direct taxation a?id licenses/’ The
difference of opinion, therefore, which may very reasonably
exist upon the point would be sufficient warrant for the
insertion, by the framers of the B. N. A. Act, of this sub-
section ” by way of abundant caution.”

If the decision in Severn v. Reg. (</), that a brewer’s license cannot be imposed by a province, is still law, it can only be upon the ground that it is ” indirect ” taxation and not ejusdem generis with the licenses particularly men- tioned in this sub-section. If it is ” direct ” taxation, it does not matter whether it is or is not ejusdem generis, for Bank of Toronto v. Lambe would distinctly uphold it. 10. Local Works and Undertakings, other than such as are of the following classes, a. Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other works and under- takings connecting the Pro- vince with any other or others of the Provinces, or extending beyond the limits of the Pro- vince : b. Lines of Steam Ships between the Province and any British or Foreign Country : , c. Such works as, although wholly situate within the Province, are heforq or_ after their execution declared by the Parliament of Canada to be for the general advantage of Canada or for the (g) 2 S. C. R. 70 ; see ante, p. 364. THE B. N. A. ACT SEC. 92, S.-S. 10, 11. 449 advantage of two or more of the Provinces. 11. The Incorporation of Companies with Provincial objects. The authorities upon these two sub-sections so run into each other that it will simplify matters if we discuss them together. Their connection is obvious, the ” provincial objects ” for which incorporation is sought under sub-sec- tion 1 1 being, in probably the majority of cases, ” local works and undertakings ” falling within sub-section 10. The power lodged by exception (c) in the hands of the; Dominion government gives that government the anoma- lous privilege of defining its own sphere of authority, in reference to these matters, as against the provinces. Much the same power is vested in Congress in reference to ” internal improvements,” and this has been the subject of much adverse comment from those who view with alarm the encroachment of the central authority. With this phase of the question, however, we should not perhaps concern ourselves in this place, for, at any given moment of time, the line of division is a legal one, though subject to be thereafter shifted at the will of the parliament of Canada. It has been held by the Court of Queen’s Bench of Quebec (h) that all works which are wholly within .one province, whether the undertaking to which they belong be for a commercial purpose or otherwise, are within the con- trol, and subject to the legislation of the province in which they are situate, unless they are by the parliament of Canada declared to be for the general advantage of Canada, or for the advantage of two or more of the provinces. The Dominion parliament cannot, it was held, without such declaration, authorize a company to establish in two or (h) Reg. v. Mohr, 7 Q. L. R. 183, 2 Cart. 257. CAN. CON. 29 450 THE B. N. A. ACT SEC. 92, S.-S. 10, 11. more provinces, works needing special legislative authority ? and which are in their nature local in each province, the jurisdiction in such case to give the needed authority being determined by the location and object of the works, and not by the circumstance that the company is authorized to make them in several provinces. Applying the law so laid down, the Dominion Act (43 Vic. c. 67), incorporating the Bell Telephone Company, and authorizing the establishment by that company of telephone lines in the several provinces of the Dominion, but which contained no provision as to utilizing their powers for the ,, purpose of connecting two or more provinces, was declared ultra vires. Dorion, C.J., says: ” If the Dominion cannot incorporate separate companies for the purpose of establishing separate lines of telegraph in one, or two, or more of the provinces, unless such lines are to con- nect two or more provinces, or extend beyond the limits of one province, or are expressly declared to be for the advantage of the Dominion, or of two or more provinces, it is because by their nature these separate telegraph lines are local works and ‘undertakings, subject to the exclusive control of the provincial legislatures. “And if the Dominion cannot authorize separate companies to establish such separate lines of telegraph, whence could it derive its authority to incorporate one company to establish those several works ? It is evident that the nature and charac- ter of such undertakings cannot be altered from being local undertakings to become general by the mere fact that they are to be established by one company instead of several companies. Their character is determined by their location and object, or by an express declaration of the Dominion parliament, and not by the accident that the same company is authorized to make them all.” In view, however, of the judgment of the Judicial Com- mittee of the Privy Council, in the case about to be noted (i), Regina v. Mohr can no longer be considered a binding itty.-Genl. of Quebec, 9 App. Gas. 157. THE B. N. A. ACT SEC. 92, S.-S. 10, 11. 451 authority even in Quebec so far, at least, as it declared the entire invalidity of the Act of incorporation. The larger question as to the subjection of such a company to pro- vincial law just how far the Dominion parliament can go, beyond merely conferring corporate capacity is not touched upon in the judgment. It should be pointed out, perhaps, that no doubt was expressed by the court as to the power of the Dominion parliament to authorize the incorporation of a company, with power to establish general telephone com- munication throughout the various provinces of the Do- minion, or between any two of them. The judgment pro- ceeded solely upon the ground that the Act in question gave the company no power to establish such a system, or to make ( such connection between two provinces. The work which was actually being carried on, under this statute, was held to be a local work falling within sub-section 10, and being such, it could only be authorized by a provincial Act. The judgment of the Privy Council, however, distinctly enunci-i ates that the territorial extensibility of the power, and noi the extent to which it is actually exercised, is to decide the question as to which legislature should grant a charter of incorporation. The power to incorporate companies with powers extend- ing beyond one province, is clearly with the parliament of Canada, and the fact that a company, so incorporated, may not see fit to extend its operations beyond one pro- vince, does not affect its status as a duly incorporated com- pany, or render its Act of incorporation (if incorporated by Act of parliament) ultra vires. The difference between a Dominion and a provincial company is in the territorial sphere within which the company’s powers may be, not within which they are actually, exercised. In Clarke v. Union Fire Insurance Co. ( j), it was held by the Master in Ordinary (Mr. Hodgins, Q.C.), that an in– (j) 10 P. B. (Ont.) 313. The affirmance of this judgment on appeal^ does not touch the constitutional point ; see 6 O. R. 223. 452 THE B. N. A. ACT SEC. 92, S.-S. 10, 11. surance company incorporated under a provincial statute can enter into insurance contracts abroad, i.e., insuring pro- perty situated out of the province. Sed qucere. No doubt it can validly contract in matters collateral to the objects for which it was incorporated, but (apart from the view which might be taken in foreign courts if such contract were sued upon there) it is submitted that, in respect of such insurance contracts, the company must be treated by the courts of these provinces as an unincorporated associa- tion of individuals. In European and N. A. Railway Company v. Thomas (k), a provincial legislature was held by the New Bruns- wick Supreme Court to be entitled to legislate with respect to a provincial railway running only to the boundaries of the province, such railway being a local work and undertaking within sub-section 10, although, as appeared by the facts of that case, legislation had been procured in the State of Maine incorporating an American company to build a rail- way in that State to connect with the provincial railway in question. This sub-section 10 was considered by the Privy Council in Dow v. Black (I), in which a provincial Act authorizing a municipality to grant a bonus to a railway company extending beyond the province, was held to fall within sub-section 2 of section 92, ante, or, if not under that suhr section, then under sub-section 16, as to which see post. It was held not to be touched by sub-section 10 at all. A question, however, was raised in that case which the Com- mittee abstained from deciding, namely does exception (a) apply to a railway extending from one province, not into another, but into a foreign country? The limitation of exception (b) to steamship lines was urged in support of the view EFiat a provincial legislature has power to enact laws as to railways extending from one province into a (k) 1 Pug. 42, 2 Cart. 439. (1) L. K. 6 P. C. 272. THE B. N. A. ACT SEC. 92, S.-S. 10, 11. 453 foreign country. For reasons which will be found dis- cussed in chapter IX., ante, p. 185, et seq., it is submitted that a provincial legislature has no such power, nor indeed has the Dominion parliament, so far as the operation of the road without Canada is concerned. So far as the incorpo- 7 ration of any such company is concerned, sub-section 11 would appear to prevent a provincial legislature from passing any laws in reference thereto. The question of the status and rights of a corporation without the limits of the country under whose laws it is incorporated is not within the scope of this work, being a matter of inter- national, rather than of colonial, law. A number of very interesting cases have arisen involv- ing consideration of the position occupied by federal ” works and undertakings ” and federal companies in refer- ence to provincial law upon matters within the legisla- tive competence of a provincial legislature and vice versa. In reference to the incorporation of companies with objects f other than provincial and other than those covered by the 1 exceptions to sub-section 10, no difficulty perhaps should arise. For the very same reasons which led us to limit the scope of the term ” municipal institutions,” we submit that a company incorporated under Dominion legislation can exercise no power which its creator could not directly exer- cise ; its Act of incorporation can confer corporate capacity merely and powers in relation to matters within the legisJ lative competence of that creator. We have already touched upon this question (m) and shall refer in a moment to certain cases which, we think, bear out the view we have ventured to express. As to works and undertakings falling within the exceptions to sub-section 10 whether carried on by a company or by individuals a somewhat different question arises, namely what is covered by the term ” works and undertakings ” ? but this question must, it seems to us, be ultimately decided upon the very same prin- (m) See ante, p. 353. 454 THE B. N. A. ACT^ SEC. 92, S.-S. 10, 11. ciple. The difficulty arises from the fact that a work or undertaking may to-day be provincial and to-morrow federal, and, it may be asked, how can the subject matter of such work or undertaking be as a matter of law within the legislative competence of a provincial legislature, one day, and within that of the parliament of Canada the next. Without attempting any elaborate discussion we may venture the opinion that the solution of these ques- tions will require a freer application of the rule laid down in Bank of Torontoj^^Lambe that legislation by one legis- lature may limit the range open to the other (n) than has yet been attempted. We now proceed to examine the cases. A railway incorporated under a provincial Act was declared to be a federal railway under clause (c) of sub- section 10, by an Act of the parliament of Canada. An Act of the legislative assembly of Quebec amalgamating the company at its own request with another provincial rail- way, was held ultra vires by the Judicial Committee of the Privy Council (o). Mr. Justice Killam in Manitoba held in Canadian Pacific Ry. v. North Pacific & Man. Ry. (p), that it is within the competence of the Dominion parliament to enact that no provincial railway shall cross a Dominion railway without the approval of the Railway Committee of the Privy Council. He treats the power to legislate in re- ference to ” crossings ” as incidental to the power of the Dominion parliament in relation to general undertakings as well as to the power of the local legislatures in relation to local undertakings within this sub-section. It would seem therefore to depend upon the question which occu- pied the ground first ? Unless this is to be the rule for de- termining these disputes, it must be conceded that, in this (n; See ante, p. 213, and notes to sub-section 16, post, (o) Bourgoin v. M. O. and O. By., 5 App. Gas. 381. (p) Man. L. B. THE B. N. A. ACT SEC. 92, S.-S. 10, 11. 455 instance at least, provincial legislation must be subordinate to Dominion legislation. Where it is necessary for a provincial railway in Ontario to cross a Dominion railway, the company desiring to effect such crossing, must procure the approval of the Minister of Public Works for Ontario, as well as the approval of the Railway Committee of the Privy Council for the Dominion, and the railway companies concerned cannot waive this provision (q). The power of a provincial legislature to pass laws as to’ insurance contracts entered into within the province by a Dominion or a foreign corporation, was considered in Par- son^JESS-zenl^r), and the view of the Judicial Committee of the Privy Council is thus expressed : ” It was contended, in the case of the Citizens Insurance Company of Canada, that the company having been originally in- corporated by the parliament of the late province of Canada, and having had its incorporation and corporate rights confirmed by the Dominion parliament, could not be affected by an Act of the Ontario legislature. But the latter Act does not assume to in- terfere with the constitution or status of corporations. It deals with all insurers alike, including corporations and companies, whatever may be their origin, whether incorporated by British authority, as in the case of the Queen Insurance Company, or by foreign or colonial authority, and without touching their status, requires that if they choose to make contracts of insurance in Ontario, relating to property in that province, such contract shall be subject to certain conditions.” and this, it was held, a provincial legislature had fullj power to do, under section 92, sub-section 13. In Colonial Building and Investment Association v. Attorney-General of Quebec (s), the Judicial Committee of the Privy Council, referred to the hypothetical case, put by- way of illustration in Citizens v. Parsons, as to the applica- (q) Credit Valley R. R. Co. v. Great Western Ry. Co., 25 Grant, 507. (r) 1 App. Gas, 96. (a) 9 App. Gas. 157. 456 THE B.. N. A. ACT SEC. 92, S.-S. 10, 11. bility, to a Dominion company, of a provincial mortmain law, and expressed their continued adherence to the view then entertained as to the respective powers of the Do- minion and provincial legislatures in regard to incorporated companies. The two cases lay down’ very clearly that a Dominion company cai^n]y_ejexcjse ^i^^ to the law of the ^aticular_province in which any of its transactions mayjpe carried on! IrTTihe firs^named~case the matter was merely put by way” of illustration in refer- ence, as we have said, to the operation of provincial mort- main laws : “Suppose the Dominion parliament were to incorporate a com- pany with power, among other things, to purchase and hold lands throughout Canada in mortmain, it could scarcely be contended if such a company were to carry on business in a province where a law against holding land in mortmain prevailed (each province having exclusive legislative power over ‘property and civil rights in the province’) that it could hold land in that province in con- travention of the provincial legislation ; and, if a company were incorporated for the sole purpose of purchasing and holding land in the Dominion, it might happen that it could do no business in any part of it, by reason of all the provinces having passed mortmain Acts, though the corporation would still exist and pre- serve its status as a corporate body.” This the Committee explain in the later case by saying that they had not in view the special law of any one pro- vince, nor the question whether the prohibition was absolute, or only in the absence of the Crown’s consent ; that their object had merely been to point out that a corporation could only exercise its powers, subject to the law of the province, whatever that may be, in this regard. In this connection may be mentioned the case of Mc- Diarmid v. Hughes (t), in which the Divisional Court of the Queen’s Bench Division (Armour, C.J., and Street, J.), held that the Dominion parliament has power to enact that a license from the Crown shall not be necessary. (0 16 O. K. 570. THE B. N. A. ACT SEC. 92 k S.-S. 10, 11. 457 to enable corporations to hold lands within the Dominion ; and that a Dominion Act enabling a Quebec corporation to hold lands in Ontario, would operate as a license ; a view difficult to reconcile with the above cases. No doubt, as put by the Chief Justice, an Imperial Act might be passed, extending to all Her Majesty’s possessions, providing that thereafter a license from the Crown should not be neces- sary to enable any corporation to hold lands therein, but it seems to us a non sequitur to say that an Act of the Dominion parliament would have effect throughout the Dominion in relation to matters over which, as between the Dominion parliament and the provincial legislatures, the latter have exclusive jurisdiction. The power of a corporation to hold land is part of the law relating to real property, and governed therefore by the lex loci, and the grant of a license from the Crown to hold lands, ntn obstante the Mortmain Acts, must be made by the execu- tive head of that government whose legislature has power to pass laws in relation to real property within its terri- torial limits. In Monkhouse v. Grand Trunk R. R. (u). it was held that a provincial statute which made provision as to ” frog-packing ” applicable only ” to every railway and railway company in respect to which the legislature of Ontario has authority to enact such provisions,” did not apply to the Grand Trunk R. R. Company, which falls within exception (a) to this sub-section 10. Just what is the scope of legislation relating^to a work or undertaking such as a railway connecting one province ^with another, is left by this case still uncertain. Mr. Justice Patterson puts his decision on the ground that the statute, there in question, ” which relates to the management and in some respects to the construction of railways, and deals only with railways as such” did not apply to the defendant company ; and he expressly reserves the question how far (M) 8 O. A. R. 637. 458 THE B. N. A. ACT SEC. 92, S.-S. 10, 11. such an undertaking may be affected by provincial legisla- tion touching property and civil rights or other subjects within the jurisdiction of the provincial legislatures. In Canada Southern Railway v. Jackson (v), before the Wtipleme (Jburt of Canada, it was held that the “Workmen’s Compensation for Injuries Act of Ontario (49 Vic. c. 28), applied to the appellant company, notwithstanding that it had been brought under the operation of the Government Railways Act of the Dominion. Mr. Justice Patterson says: ” It is not legislation respecting such local works and under- takings as are excepted from the legislative jurisdiction of the province by article 10 of section 92 of the B. N. A. Act. It touches civil rights in the province. The rule of law which it alters was a rule of common law in no way depending on or arising out of Dominion legislation, and the measure is strictly of the same class as Lord Campbell’s Act, which, as adopted by provincial legislation, has been applied without question to all our railways.” The difference in opinion which is still possible upon this question is made manifest in McArthur v. N. and P. Junction Ry. Co. (17 O. A. R. 86) in which the Court of Appeal was evenly divided upon the question of the validity of the clause in the Dominion Railway Act limit- ing the time within which an action may be brought for injury sustained ” by reason of the railway. R. S. C. c. 109, s. 27. Hagarty, C.J.O. and Osier, J.A. upheld the enactment as being an almost essential part of railway legislation, while Burton and Maclennan, JJ.A. considered it an unnecessary interference with ” property and civil rights in the province.” The injury complained of, we should perhaps state, was trespass to timber in connection with the construction and operation of the road. As to the applicability of the Dominion Winding-up Acts to companies incorporated under provincial legislation, (i>) 17 S. C. R. 310.

THE B. N. A. ACT SEC. 92, S.-S. 12. 459

see Shoolbred v. Clarke (w) and other cases under section
91, sub-section 21, ante, p. 394.

In like manner, companies incorporated under provincial I
legislation, for the purpose of carrying on these ” local ‘
works and undertakings/’ have without hesitation been held ;
to be subject to the provisions of Dominion law and legisla-
tion upon the subject of “navigation and shipping.” See;
noted under section 91, sub-section 10.

As to the power of a provincial legislature over a cor-
poration existing prior to Confederation, see Dobie v. Tem-
poralities Board (y) cited in the notes to section 129, post.

In JOTiej_v J j2anada-Gotral (z) it was held that provin-
cial legislation in reference to the bonds of a railway
company falling within this sub-section 10 is operative to r
govern bonds held out of the province. Mr. Justice Osier
says :

” I am of opinion that where debts and other obligations
arise out of, or are authorized to be contracted under, a local Act
which is passed in relation to a matter within the powers of the
local legislature, such debts or obligations may be” dealt ‘with or
affected by subsequent Acts of the same legislature in relation to
the same matter, and this notwithstanding that by a fiction of
law such debts may be domiciled out of the province.” *^

12. The Solemnization of Marriage in
the Province.

This sub-section will be found noted, so far as is neces-
sary, in the notes to sub-section 26 of section 91. We may
also refer to chapter V., ante, page 116, et seq., as to the ex-

(w) 17 S. C. R 265.

(x) 10 S. C. R. 222.

(y) 7 App. Gas. 133 ; see ante, p. 200.

(z) 46 U. C. Q. 13. 250. See Redfield v. Corporation of Wickhara, 13
App. Gas. 467, as to the right of an execution creditor to sell under
Ji.fa., a Canadian railway as a whole, and the difference, in this respect,
between English and Canadian law.

460 THE B. N. A. ACT SEC. 92, S.-S. 13.

tent to which English marriage law is in force in Upper
Canada. Owing to the decided religious convictions of
Roman Catholics upon this question, there has been no
general legislation by the Dominion parliament upon the
subject of marriage and divorce ; and its jurisdiction under
sub-section 26 of section 91, has been limited to the passage
of private Divorce Acts.

13. Property and Civil Eights in the
Province.

In what may be termed the leading case as to the mean-
ing to be attached to this sub-section, and the range of
matters embraced therein Citizens_y_Parsons (a) it was
contended that “civil rights” should be limited to such rights
only as flowed from the law, e.g., the status of persons, and
should not be interpreted to cover rights arising from con-
tract. Had this contention prevailed, the provinces would
have been driven out of the larger part of the field of
activity, which now, by the authoritative deliverance of the
Judicial Committee of the Privy Council in that case, the}’
are undoubtedly entitled to occupy.

” Their Lordships cannot think that the latter construction
is the correct one. They find no sufficient reason in the
language itself, nor in the other parts of the Act, for giving so
narrow an interpretation to the words ‘civil rights.’ The words
are sufficiently large to embrace, in their fair and ordinary mean-
ing, rights arising from contract ; and such rights are not included
in express terms in any of the enumerated classes of subjects in
section 91.

V “It becomes obvious, as soon as an attempt is made to con-

strue the general terms in which the classes of subjects in sec-
tions 91 and 92 are described, that both sections and the other
parts of the Act must be looked at to ascertain whether language
of a general nature must not by necessary implication or reason-
able intendment be modified and limited. In looking at section
91, it will be found not only that there is no class including,

(a) 7 App. Cas. 96.

THE B. N. A. ACT SEC. 32, S.-S. 13. 461

generally, contracts and the rights arising from them, but that
one class of contracts is mentioned and enumerated, viz : ‘ 18.
bills of exchange, and promissory notes,’ which it would have,
been unnecessary to specify, if authority over all contracts, and/
the rights arising from them, had belonged to the Dominion!
parliament.

” The provision found in section 94 of the Act, which is one
of the sections relating to the distribution of legislative powers,
was referred to by the learned counsel on both sides, as throwing
light upon the sense in which the words ‘property and civil
rights’ are used. By that section, the parliament of Canada is
empowered to make provision for the uniformity of any laws
relative to ‘ property and civil rights ‘ in Ontario, Nova Scotia
and New Brunswick, and to the procedure of the courts in these
three provinces, if the provincial legislatures choose to adopt the
provisions so made. The province of Quebec is omitted from
this section for the obvious reason that the law which governs
property and civil rights in Quebec is, in the main, the French
law as ii^ existed at the time of the Cession of Canada, and not
the English law which prevails in the other provinces. The
words ‘property and civil rights’ are, obviously, used in the same
sense in this section as in Nor. 13 of section 92, and there seems
no reason for presuming that contracts, and the rights arising
from them, were not intended to be included in this provision for
uniformity. If, however, the narrow construction of the words,
‘ civil rights ‘ contended for by the appellants were to prevail, the
Dominion parliament could, under its general power, legislate in
regard to contracts in all and each of the provinces, and, as a
consequence of this, the province of Quebec, though now
governed by its own Civil Code, founded on the French law, as
regards contracts and their incidents, would be subject to have
its law on that subject altered by the Dominion legislature, and
brought into uniformity with the English law prevailing in the
other three provinces, notwithstanding that Quebec had been
carefully left out of the uniformity section of the Act.

” It is to be observed that the same words ‘civil rights’ are
employed in the Act of__ 14^ GUo^ HI, chapter 83, which made
provision for the government of the province of Quebec. Section
8 of that Act enacted ‘ that His Majesty’s Canadian subjects,

462 THE B. N. A. ACT SEC. 92, S.-S. 13.

within the province of Quebec, should enjoy their property, usages,
and other civil rights as they had before done, and that in all
matters of controversy relative to property and ciril rit/htx, resort
should be had to tile laws of Canada, and be determined agree-
ably to the said laws.’ In this statute, the words, ‘property and
civil rights ‘ are plainly used in their largest sense ; and there
is no reason for holding that in the statute under discussion,
they are used in a different or narrower one.”

The Quebec Act, 1774, referred to in the last paragraph
of this quotation, draws a sharp distinction between the
criminal and the civil law (6), the two branches together
being treated as inclusive of the whole field ; and the Com-
mittee, in holding that the same wide meaning must be
given to the term ” property and civil rights ” in this sub-
section, have, it may be thought, decided that the various
other sub-sections of section 92 are to be treated as
unnecessary surplusage. A reference, however, to those
other sub-sections will show that with one or two excep-
tions, they treat, not of civil rights as between subject and
subject, but of what may be called political rights, as
between the subject, on the one hand, and the provincial
government and bodies organized for the purposes of local
self-government throughout the various sections of the prov-
ince, on the other. The judgment of the Committee does,
however, indicate a very wide range of subjects as included
within this sub-section a range subject only to the terri-
torial limitation indicated by the words ” in the province,”
and subject also, as the cases show, to be cut down to tin*
extent necessary to give proper play to the powers of the
Dominion parliament under the various sub-sections of
section 91. It would seem as if this sub-section really
throws the largest ” residuum ” to the provinces.

As to the first limitation, reference may be had to R

In Regina v. Horner (r), the Court of Queen’s Bench
(Quebec), upheld the Act of that province respecting dis-
trict magistrates and magistrates’ courts, and the power of
the provincial executive to appoint such magistrates. Refer-
ence is made by Mr. Justice Rarnsay, in delivering the
judgment of the court, to Regina v. Coote (s), decided in

^the_Privy Council, as expressly recognizing the power of
provincial legislatures to create new courts for the execu-
tion of the criminal law, as also to nominate the magistrates
to sit in such courts. ” So much being established almost
all difficulty disappears. The Privy Council recognizes the
general principle that the executive power is derived from
the legislative power unless there be some restraining enact-
ment.” It appears, we should perhaps say, from the report
of the case, that the Act in question expressly provided for
the appointment of such magistrates by the Lieutenant-
Governor in Council.

(r) 2 Steph. Dig. 450 ; 2 Cart. 317. (s) L. R. 4 P. C. 599.

THE B. N. A. ACT SEC. 92, S.-S. 14. 471

To speak now of courts of civil jurisdiction, we may
note that in Ganong v. Bayley (t), in the New Brunswick
Supreme Court, it was held by the majority of the court
that an Act of the New Brunswick legislature establishing
commissioners’ courts in that province, and for the appoint-
ment by the Lieutenant-Governer in Council of commis-
sioners to preside therein, was valid. The power of the
local legislature to establish courts seems to have been
treated as beyond question, the point more fully discussed
being as to the validity of the Act in so far as it con-
ferred on the Lieutenant-Governor of the province power
to appoint the judges who should preside in such courts,
and the case, therefore, should perhaps be noted rather as
an affirmance of the doctrine that an Act of provincial
legislation in reference to the exercise of the prerogatives
of the Crown in relation to matters falling within the
legislative competence of such legislature, is a proper
exercise of its legislative power. The opinions of Chief
Justice Allen and Mr. Justice Duff, who dissented from the
judgment of the majority of the court, are placed upon the
ground that the exercise of this prerogative is, by the
B. N. A. Act, vested exclusively in the Governor-General
as Her Majesty’s only representative in Canada. But, in
view of the authorities noted under section 58, ante, this
view is untenable.

As to the appointment of judges and officers connected
with the administration of justice reference may be had to
chapter XI. (ante, p. 238, et seq.), and to the cases in the
foot note (u).

The question of the power of a provincial legislature
to regulate procedure affecting penal laws which such
legislature is authorized to enact (v), came before the Que-

(0 1 Pug, & Burb. 324 ; 2 Cart. 509.

(it) Reg. v. Reno, 4 P. R. (Ont.) 281 ; Reg^^Bpnnett, 1 O. R. 445;
Richardson v. Ransom, 10 O. R. 387 ; Ex parte Williamson, 24 N. B. 64 ;
and Ex pnrle Perkins, ib. 66.

(v) See s-s. 15, post.

472 THE B. N. A; ACT SEC. 92, S.-S. 14.

bee Courts in three early cases, and was very emphatically
affirmed. In Pope v. Griffith (w), a case arising under the
Quebec License Act, Mr. Justice Ramsay says :

” Appellant at once admits that the local legislature have the
power to attach a fine, penalty, or imprisonment, to the sale or
keeping of spirituous liquors without a license ; but that having
done that, a crime was created, and that all the procedure con-
nected with the infliction of punishment for this crime must
necessarily be fixed by parliament, and could not be fixed by the
legislature of the province. In support of this pretension appel-
lant maintains that every infraction of a public law to which any
penalty is attached is a crime. . . . Whatever may be the
definition of a crime, I would remind those who lean too much
upon definitions, of their danger ; it will not be denied that, in one
sense of the word, the act of which the appellant is accused, is a
crime ; but it is equally plain that it is not a crime in the seme of
sub-section 2.7, section 91 of the B. N. A. Act. Now, if the signifi-
cation attached to the word ” criminal ” is restricted when re-
ferring to law in this sub-section, why should it be used in a
different sense when applied to procedure? It cannot be pre-
sumed that in one short paragraph, particularly a paragraph of
an enumeration of powers, the legislature should have intended
to apply two different meanings to the same word, especially
when by doing so they would be transferring the legisla-
tion with regard to a purely local matter to parliament. The
rule is all the other way.”

In Ex parte Duncan (a?), Mr. Justice Dunkin held that
34 Vic. c. 2 (Quebec) taking away the right to certiorcr/,
to remove proceedings in civil matters before a district
magistrate, was valid, and that under the term “civil
matters,” a proceeding before a district magistrate for the
enforcement of penalties under a license law of the pro-
vince would be included.

” These words ‘ civil ‘ and * criminal ‘ are used in a sense which
excludes from the idea conveyed by the latter and includes
within that conveyed by the former this matter of ‘ punishment

(w) 16 LK C. Jur. 169 ; 2 Cart. 291.
(x) 16 L. C. Jur. 188 ; 2 Cart. 297.

THE B. N. A. ACT SEC. 92, S.-S. 14. 473

by fine, penalty, or imprisonment, for enforcing any law ‘
which, under this 92nd section, a province alone can legally
enact. Jurisdiction is characterized simply as being civil or else
criminal. Crime of whatever kind or degree can
its punishmentassigned, and procedure relative to_Jt l^id down
by parliament alone. So enactment of a local legislature can
give to any Act that quality, or subject it to that punishment, or
bring it within the purview of that procedure. But every local
legislature without let or hindrance from parliament and
therefore without need of aid from parliament can impose pun-
ishment by fine, penalty, or imprisonment, for enforcing certain
laws, which it alone can make. . .

” Whatever infractions of law, whether as to matters of
Dominion or provincial (y) legislation, parliament sees fit to
designate as crimes, it and it alone can so declare, and as such
punish, and to that end regulate procedure. Whatever infrac-
tions of any provincial law coming within the purview of this
92nd section, parliament may not see fit thus to deal with, the
interested province may punish by fine, penalty, or imprison-
ment ; but its so doing does not make the offence to be thus
punished a crime, nor the procedure laid down in order to its
punishment procedure in a criminal matter. On the contrary,;
suck whole matter must remain a civil matter, within what is here^
the true meaning of these respective terms.

In Page v. Griffith (z), Mr. Justice Sanborn expresses
the same opinion, intimating that, in his view, the power
to prescribe procedure in criminal matters refers to “the
general public criminal law comprised in the criminal
statutes of the Dominion and in the common law. This
view is confirmed by the Criminal Procedure Act, which
has no reference whatever to local penal laws, but to laws
in force throughout the Dominion,” and in Cote v. Chaveau
(a), the law is laid down to the same effect by Mr. Justice
Casault.

(y) See ante, p. 414.

(z) 17 L. C. Jur. 302 ; 2 Cart. 308.

(a) 7 Q. L. R. 258; 2 Cart. 311.

474 THE B. N. A. ACT SEC. 92, S.-S. 14.

Having held valid the provincial game laws, the full
Court of Queen’s Bench of Manitoba, in 1886 (b), adopted
the view which was then practically recognized in all the
other provinces, that procedure in connection with prose-
cutions under such laws is matter of exclusively provincial
jurisdiction. We say practically recognized, although the
question was only in 1890 authoritatively passed upon in
Ontario by the Court of Appeal for that province in Reg. v.
Wason ( in the notes to sub-section 15, post.

In Reg. v. Bittle (d), the Divisional Court of the Common
Pleas Division, reviewed the decisions upon this question.
MacMahon, J., delivering the judgment of the court, uphold-
ing the validity of R. S. O. c. 61, s. 9, which provides
that, in proceedings under provincial Acts, the defendant
is neither a competent nor compellable witness, refers to
the diversity of nomenclature applied to provincial laws
falling within this sub-section “provincial criminal laws”
(7 App. Cas. 840); “penal laws” (2 Cart. 291); “a civil
matter within the true meaning of these respective terms”
(2 Cart. 297) adopts the language of Hodge v. Reg., that,
however styled, such laws are ” not in conflict with No.
27 of section 91,” and concludes:

“It is manifestly clear from the authorities that the pro-
cedure by the tribunals intrusted with adjudicating on the
offences so created cannot be prescribed by the Dominion parlia-
ment.”

It was held in Manitoba, by Mr. Justice Killam (e), that
the provisions of the Dominoii Act (46 Vic. c. 17) (f), for
the reception in evidence of certified copies of documents

(b) Reg, v. Robertson, 3 Man. L R. 613 ; see notes to s-s. 15, p-.)*t.

(c) 17 O. A. R. 221.

(d) 21 O. R. 605.

(‘) McKilligan v. Machar, 3 Man. L. R. 418.

* (f) See R. S. C. c. 139 ; see particularly section 10, which makes
applicable to proceedings under Dominion law, provincial law? of evi-
dence ” subject to the provisions of this and other Acts of the parliament
of Canada.”

THE B. N. A. ACT SEC. 92, S.-S. 14. 475

and records in the Dominion Lands Office, were ultra vires,
so far as they might be taken to apply to suits merely for (
the cancellation, as clouds upon title, of conveyances regis-l
tered under the Lands Registration Act of Manitoba. As
the point is of some importance, and, so far as we are
aware, has not been touched upon in any other case, we
quote somewhat at length from his judgment :

” It does not appear to me that the Dominion parliament
could make any binding provision as to the nature of the evi-
dence to be received in a case like the present. The suit is one to
determine the right to, or property in, certain lands in this prov-
ince. The decision of the question may involve to a certain
extent the interpretation of statutes of the parliament of Canada,
and of orders of the Governor- General in Council ; but the suit
is not instituted under any authority of the Dominion parlia-
ment. Whether there had been, at a certain date, a grant from
the Crown, represented by the Governor-General, of lands held
for the benefit of the Dominion, must be determined by a consid-
eration of certain statutes and Orders in Council, as well as of
evidence of acts done under them. This court, in interpreting
those statutes and Orders in Council, has to apply tlfe ordinary
rules of interpretation. In so far as the Dominion parliament lays
down rules to show the meaning of its own statutes they will be
used for the purpose, just as any statement in any document of the
meaning of certain phrases or words therein, will be used in the
interpretation of the document. This, however, in no way shows I
that the Dominion parliament could lay down rules as to the
method of proving acts done under its statutes, or Orders of the
Governor-General in Council. Whether the registration of an
instrument appearing to show a claim adverse to that of the real
owner of land, forms a cloud upon the title of the owner which
should be removed by a decree of this court, is a matter upon
which the provincial legislature alone could legislate ; though in
such a suit, title may be deduced from the Crown, holding origin-
ally for the Dominion. The provincial legislature has the
authority to regulate the administration of justice in the province,
including procedure in civil matters .in the courts ; though it
has in some cases been held that the Dominion parliament could
establish courts for the determination of matters arising under

476 THE B. X. A. ACT SEC. 92, S.-S. 14.

statutes within its powers, or, ‘perhaps, regulate to some extent,
procedure in the ordinary courts, in suits upon subjects within
its legislative authority.”

Whittier v. Diblee (</), is simply a qucvre whether the Dominion Act, 32 & 33 Vic. c. 39, relating to costs against justices is not ultra vires of the federal parliament as relating to procedure in a civil matter. It is difficult to suggest any principle in denial of the right of the Dominion parliament, as part of general legislation in regard to a criminal law, to pass an Act protecting magistrates in the exercise of their criminal jurisdiction in the proper sense of that term. We have already noted some cases which deal with the (juestion of the position of imprisoned debtors, and may here refer to some others dealing with the same topic. Prior to Confederation, there were no county courts in Nova Scotia. By an Act in force in the Province of Nova Scotia at the Union, every debtor imprisoned under process in any court, was entitled to apply for and, on certain con- ditions, to obtain his discharge. Doubts having been expressed as to the jurisdiction of the county courts estab- lished after Confederation to entertain such application, an Act of the provincial legislature was passed making the above provisions applicable to persons imprisoned by county courts ; and this Act was held (h) to be valid, as being a matter relating to procedure in ” civil ” matters in provin- cial courts. With this case should be compared the Queen v. Chandler (i), an earlier decision of the New Brunswick Supreme Court, which with other cases will be found noted more fully in sub-section 21 of section 91. The Supreme Court of New Brunswick, in Ex partf. Ellis ( j), upheld the validity of a provincial Act for the (ij\ 2 Pug. 243; 2 Carfc. 492. (h) Johnston v. Poyntz, 2 Rass. & Geld. 195 ; 2 Cart 416. (/) 1 Hannay, 55G ; 2 Cart. 421. (j) 1 Pug. and Burb. 593 ; 2 Cart. 527. THE B. N. A. ACT SEC. 92, S.-S. 14. 477 imprisonment of a person making default in payment of a sum of money due on a judgment in certain cases as being a matter relating to proceeding in “civil” matters and not falling within the criminal law, or the law relating to bankruptcy and insolvency. Allen, C. J., says : ” Now surely the enforcing the payment of a judgment is a civil right, and the mode of enforcing it a part of the adminis- tration of justice, and procedure in civil matters in the province; all of which are expressly within the jurisdiction of the provin- cial legislature. Having therefore the right to legislate on these subjects, the 15th sub-section gives them power to enforce any such laws by imposing imprisonment. It would seem, therefore, that the powers conferred by this Act are directly within the 92nd section of the B. N. A. Act.” – Mr. Justice Weldon dissented from the judgment of the majority of the court, the legislation impugned being, in his opinion, legislation relating to the criminal law. l Other cases in which reference has been made to this I sub-section will be found in the foot note (k). Those sub- sections of section 91 which involve ” procedure ” as an essential part of any legislation thereon are treated of generally in chapter XI, ante, p. 236, and more particularly in the notes to the sub-sections themselves. (k) Wilson v. McGuire, 2 O. R. 118, ante, p. 232 ; Peak v. Shields, 8 S. C. R. 591, ante, p. 235 ; Reg. v. Bush, 15 O. R. 398, ante, p. 239 ; Ee N. Perth, 21 O. R. 538, ante, p. 240 ; Valin v. Langlois, 5 App. Gas. 115, ante, p. 287 ; Re Wetherell and Jones, 4 O. R. 713, ante, p. 346 ; Gushing v. Dupuy, 5 App. Gas. 409, ante, p. 391; Crombie v. Jackson, 34 U. C. Q. B. 575, ante, p. 393 ; Armstrong v. McCutchin, 2 Cart. 494, ante, p. 397; Reg. v. Boardman, 30 U. C. Q. B. 553, ante, p. 410; Reg. v. Lawrence, 43 U. C. Q. B. 164, ante, p. 411 ; Reg. v. Roddy, 41 U. C.Q. B.’ 291, ante, p. 415; Ward v. Reid, 3 Cart. 405, ante, p. 416 ; Atty.-Genl. of Quebec v. Reed, 10 App. Gas. 141, ante, p. 431 ; Plummer Wagon Co. v. Wilson, 3 Man. L. R. 68, ante, p. 433 ; Dulmage v. Douglas, 3 Man. L. R. 562, ante, p. 434 ; Crawford v. Duffield, 5 Man. L. R. 121, ante, p. 434 ; Keg. ex rel. McGuire v. Birkett, 21 O. R. 162, ante, p. 445 ; McArthur v. N. & P. June. Ry. 17 O. A. R. 86, ante, p. 458; Reg. v. Amer, 42 U. C. Q. B. 391, ante, p. 259 ; Lenoir v. Ritchie, 3 S. C. R. 575, ante, p. 317 ; Re Squier, 46 U. C. Q. B. 474 ; see notes to section 96, post. 478 THE B. N. A. ACT – SEC. 92, S.-S. 15. 15. The imposition of punishment by fine, penalty, or imprisonment for enforc- ing any law of the Province made in relation to any matter coming within any of the classes of subjects enumerated in this section. This sub-section was required in order to round up the sphere of authority of the provinces and make the legis- lative and executive departments, beyond doubt, co- terminous. By it, moreover, that power to ” sanction ” its enactments without which law is but a brutum fulmen, is placed within the hands of provincial legislatures. Subject (j/* to the finrnnajjr perpetrated by section 96, -the provinces p A/ have control to the farthest bounds over the execution of y*r provincial laws. In the notes to the last sub-section (14), the authorities were collected which have now clearly established that the matters covered by this sub-section are not ” criminal ” in the sense of sub-section 27 of section 91, but “must remain civil matters within what is here the true meaning of these respective terms”; and the procedure necessary to enforce punishment for breach of any provincial law is procedure in a ” civil ” matter. But, by whatever name called, the body of laws passed under the authority of this sub-section must necessarily present features closely resembling the ordinary criminal law as it is to be found in the Dominion statute books, and because this fact is the one most prominent in Reg. v. Wason (I), we have left that case to be noted here rather than under sub-section 13, although, as will appear, the decision of the Court of Appeal for Ontario was unani- mously to the effect that the provincial legislation there impugned was legislation as to “property and civil rights.” The statute in question was entitled ” An Act to protect (I) 17 O. A. K. 221. THE B. N. A. ACT SEC. 92, S.-S. 15. >

against frauds in the supplying of milk to chefcse or butter
manufactories/’ and by its first section it provided that
” no person shall knowingly and wilfully ” supply diluted,
adulterated, or skimmed milked to a cheese or butter
manufactory without notifying the owner or manager of
such dilution, etc., under a penalty as provided in the Act.
The Divisional Court of the Queen’s Bench Division de-
clared the Act ultra vires, on the ground, as put by
Armour, C. J., that ” the primary object of the Act is to
create new offences and to punish them by fine, and, in de-
fault of payment, by imprisonment, and this is its true
nature and “character.” Mr. Justice Street dissented, and
his view was adopted by the Court of Appeal. He says in
his judgment :

” Is it an Act constituting a new crime for the purpose of
punishing that crime in the interest of public morality ? Or is it an
Act for the regulation of the dealings and rights of cheesemakers
and their patrons, with punishments imposed for the protection
of the former ? If it is found to come under the former head, I
think it is bad as dealing with criminal law ; if under the latter,
I think it is good as an exercise of the rights conferred on the
province by the 92nd section of the B. N. A. Act. An examina-
tion of the Act satisfies me that the latter is its true object, in-
tention and character.”

It may now, therefore, be taken, so far as the courts of
Ontario are concerned, that the criterion here suggested is to
be our guide in determining this question in any given
case. As will have been noticed, the difference in opinion
which existed in the Queen’s Bench was as to the primary
object of the Act there impugned, the majority of the
court answering Mr. Justice Street’s questions in the
reverse way. It would appear, therefore, that, as Mr.
Justice Osier puts it, ” Thoujshalfr not ” is not necessarily 1
” criminal ” legislation within the meaning of the B. N. A.
Act.

” The legislature when really dealing with property and civil
rights must have power to say ‘ thou shalt ‘ or ‘ thou shalt not,’

480 THE B. N. A. ACT SEC. 92, S.-S. 15.

and, as the breach of the legislative command is always, in one
sense, an offence, the line between what may, and what may not
be lawfully prescribed without touching upon * criminal ‘ law is
sometimes difficult to ascertain, and may shift according to cir-
cumstances The criminal law, so far as regards

human legislation, in its ultimate object, even when dealing
with public order, safety, or morals, is chiefly concerned with
preventing and punishing the violation of personal rights and
rights respecting property, and hence, in a very wide sense, with
property and civil rights. But while in this sense, and in making
provisions applicable to the community at large, whether we
speak of all the confederated provinces or of one, the right to
legislate rests with parliament, I do not see how the right can be
denied to the provincial assemblies to legislate for the better pro-
tection of the rights of property by preventing fraud in relation
to contracts or dealings in a particular business or trade, or upon
other subjects coming within section 92, and to punish the infrac-
tion of the law in a suitable manner, so long, at all events, as
parliament has not occupied the precise field ; for I suppose it
will not be denied that the latter may draw into the domain of
criminal law an act which has hitherto been punishable only
under a provincial statute : Hodge v. The Queen, 9 App. Cas. at
p. 181. But if a particular species of fraud has not been con-
verted into a crime by Dominion legislation, I think that the
local legislature must be at liberty to deal with it for the better
protection of the class of persons immediately affected by it.”

We have quoted this passage at length, because it ex-
presses views in relation to the question of “concurrent”
powers which go far to support what we have ventured to
lay down in chapter X. (ante, p. 213, et seq.) upon this vexed
question.

Having held the Act intra vires, the Court of Appeal
decided without hesitation that the procedure laid down for
its enforcement was procedure in a civil matter within the
meaning of sub-section 14 of section 92.

To the like effect, the full Court of Queen’s Bench, in Man-
itoba, in Queen v^Rpbertson (m), held that laws relating to

(m) 3 Man. L. R. 613. This case is noted more fully under the next
s-s. 16.

THE B. N. A. ACT SEC. 92, S.-S. 15. 481

the killing and possession of game at certain seasons of the
year, are laws relating to property and civil rights. Re-
ference is made to the works of Blackstone and other old
writers as showing that the taking of animals ferce naturce
is an ordinary right which, in the absence of legislation ,
any citizen possesses; and therefore that laws curtailing
such rights are laws relating to civil rights in the province,
within the meaning of this sub-section.

The query in Regina v. Boardman (n), as to the power
of a provincial assembly to pass a general law in reference
to the punishment to be meted out for violation of pro-
vincial laws, is now answered in favor of the power so
far at all events as the authority of the Court of Appeal
for Ontario extends by the decision of that tribunal in
Attorney-General (Canada) v. Attorney- General (Ont.) (o).
It would seem also to be covered by the principle of Hodge
v. The Queen (p), applied a fortiori.

However, as late as July, 1890, Mr. Justice Wurtele, of
the Quebec Superior Court, held, in Tarte v. Beique (q) r
that a provincial legislature, for enforcing a law made by
it, must enact a special fine or imprisonment, and cannot
confer the power on any person or body of persons to
determine what penalty shall be incurred by a violation of
such law. But this seems to be qualified by a remark,
made later, that the legislature has no power to decree that
the punishment of an offender shall be at the discretion of
the court before which he may be tried. No reference is
made in the judgment to the doctrine enunciated in Queen
v. Burah, and the other cases, particularly Hodge v. The

(n) 30 U. C. Q. B. 553 ; see ante, p. 410.

(o) 19 O. A. E. 31.

(p) 9 App. Gas. 117.

(q) 6 Mont. L. R. 289. It was also held in this case that a commis-
sion of inquiry issued by a Lieutenant-Governor in Council, under a
provincial statute, is not a judicial tribunal, and does not possess any in-
herent power to commit for contempt.
CAN. CON. 31

482 THE B. N. A. ACT SEC. 92, S.-S. 15.

Queen (r), which support the doctrine of “plenary powers” ;
and it is difficult in view of these authorities to acquiesce
in the correctness of this decision.

In Bennett v. The Pharmaceutical Association (s), it was
held by Chief Justice Dorion, that the provisions of the
Quebec Pharmacy Act, 1875, appropriating fines imposed
for breaches of that Act to the respondent corporation, was
intra vires :

” It can direct that a portion or the whole of it shalLbe for
the benefit of the prosecutor, or of a municipal or other corpora-
tion, just as it distributes the provincial revenue, in any manner
it may choose to direct. It had the same power to enact that
the fines levied under the Act should be for the benefit of the
society respondent as it would have, after receiving the fines as
part of the provincial revenue, to order that the amount should
be paid back to the society for the objects of its incorporation.”

a decision which is in agreement with the later decision
of the Court of Appeal for Ontario in the case above noted
(t), in which general legislation authorizing the Lieutenant-
Governor in Council to remit fines, etc., if thought proper,
was upheld.

In the province of Quebec conflicting decisions were
given in certain cases which came before the Courts of that
province in 1871-3. Mr. Justice Drummond held (u) that
the local legislature could not authorize punishment by both
fine and imprisonment, and in this view he was followed
by Mr. Justice Torrance (v). In Paige v. Griffith (w) t Mr.
Justice Sanborn declined to follow the earlier cases, and
construed the word “or” as being cumulative. In Blouin v.
Quebec (x), Chief Justice Meredith intimated his agree-

(r) See ante, p. 177, et seq.

(s) I Dor. 336 ; 2 Cart. 250.

(t) Atty.-Gen. (Can.) v. Atty.-Gen. (Ont.), 19 0. A. K. 31.

(u) Exparte Papin, 15 L. C. Jur. 334 ; 2 Cart. 320.

(v) Exparte Papin, 16 L. C. Jur. 319 ; 2 Cart. 322.

(w) 18 L. C. Jur. 119 ; 2 Cart. 324.

(x) 7 Q. L. K. 18 ; 2 Cart. 368.

THE B. N. A. ACT SEC. 92, S.-S. 16. 483

ment with the view which had also been expressed in
earlier cases in that province that a local legislature has no
power to impose hard labor as a term of imprisonment
under this sub-section 15 ; but the contrary has now been
distinctly held by the Judicial Committee of the Privy
Council in Hodge v. The Queen, which also supports the
-cumulative reading of the word “or” (xx).

16. Generally all matters of a merely
local or private nature in the Province.

This sub-section must be read in connection with per-\
haps we should say, subject to the concluding paragraph 1
of section 91 :

“And any matter coming within any of the classes of sub-
jects enumerated in this section shall not be deemed to come
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.”

As has been pointed out, the grammatical connection of
this concluding paragraph of section, 91 with, this sub-section
16 is now clearly established by authority. In note.(xi) to,
the opening paragraph of section 91 we referred to the con-
cluding paragraph of that section as weakening somewhat
the argument that the legislative power conferred on the
Dominion parliament should be limited to the passing of
general laws, to operate throughout Canada or for the
general benefit of Canada as a whole; because it would
seem to be implied that matters would come before the
Dominion parliament for legislative action which upon

(xx) For other cases in which this sub-section has received attention,
see:

Keg. v. Lawrence, 43 U. C. Q. B. 164, ante, p. 411 ;
Reg. v. Shaw, 7 Man. L. R. 518, ante, p. 412 ;
Keg. v. Roddy, 41 U. C. Q. B. 291, ante, p. 415 ;
Reg. v. Lake, 43 U. C. Q. B. 515, ante, p. 415 ;
Pope v. Griffith, 2 Cart. 291, ante, p. 472 ;
Ex parte Duncan, 2 Cart. 297, ante, p. 472 ;
-Page v. Griffith, 2 Cart. 308, ante, p. 473.

484 THE B. N. A. ACT SEC. 92, S.-S. 16.

their face, so to speak, would appear to be matters of a
merely local or private concern in one province. It may be
argued, however, that what is meant by the concluding
paragraph of section 91 is simply this : that if a Dominion
law, ex hypothesi of a general character, should affect
local and private interests in one province in a particular
manner, or to a degree peculiar to such province, such law
must not on that account be deemed to be a law relating to a
matter of a merely local or private nature in such province,

.’ and therefore invalid. For example, a general law in rela-
tion to sea-coast fisheries might peculiarly or even exclu-
sively affect one province and so as to the establishment
of lighthouses, inter-provincial or international ferries, and
other matters which might be named. We have already
discussed various aspects of this question (y). It is
involved in the larger question as to ” concurrent ” powers
(so-called), and as to the difference in the range of matters
open to one legislature in the absence or presence of legis-
lation enacted by the other. If the powers of the parlia-
ment of Canada are, in every instance, powers of genera]
legislation only, it would appear that all laws for the peace.

Border, and good government of a province as a. aclf-

j^J**!!^ “nit, pa.sse.rl in relation to ma.tt.ftra not mypyprl “hy
rt ‘ y XjjUneral legislation by the parliament of Canada upon those
* j > (l> /J^inatters of common concern committed to it. would be la^ws
of a ” merely local or private nature in the province.” In
this view no difficulty would arise from the limitation upon
the scope of the term “municipal institutions”; for as a
province could itself pass, so it could delegate to a muni-
cipal body power to pass, any laws in relation to local self-
government not overborne by general laws passed by the
parliament of Canada in the interests of the Dominion as
a whole. In this connection we may refer to what was
laid down by Lord Selborne in L’Union St. Jacques v.
Belisle(0):

(;/) See ante, p. 213, et seq*; and note (xi) to sec. 91, ante, p. 350.
(z) L. E. 6 P. C. 31.

THE B. N. A. ACT SEC. 92, S.-S. 16. 485

“The onus is on the respondent to show that this, being of
itself of a local or private nature, does also come within one or
more of the classes of subjects specially enumerated in the 91st
section.”

a passage which is immediately followed by that other
which we have already quoted, to the effect that, in the
various sub-sections of section 91, there is no indication in
any instance of anything being contemplated beyond what
may be properly described as general legislation.

The main difficulty about the whole matter is that thej
“residuum” of subject matters is assigned to the parlia- 1
ment of Canada. But here again it may be argued that
the legislation must be general, for the peace, order and
good government of Canada as a federal Dominion, and
that, in truth, the ‘* residuum,” at any given moment, must
be with the provinces, the matters comprised in such ” resi-
duum ” being deemed matters of a local or private nature
in each province as would be evidenced by the absence of
general federal legislation thereon.

The whole subject is one upon which much may be
said, but, confining our attention* now to this sub-section
16, we proceed to indicate what particular provincial legis-
lative Acts have been held to fall within it.

In L’Union St. Jacques v. Belisle, above referred to, an I
Act of the Quebec legislature, passed in aid of a society \X
which was in financial straits, forcing commutation upon
certain annuitants, was held to be an Act relating to a
matter of a merely local or private concern in the pro-
vince. It was contended held in the judgment appealed
from that the legislation was insolvency legislation, and
the Judicial Committee intimated that if a Dominion Act
had been in existence making such acts on the part of the
society as were authorized by the statute in question, acts
of insolvency rendering all societies who committed them
liable to be wound up under insolvency proceedings, it
might be that the statute in question would have been

486 THE B. N. A. ACT SEC. 92, S.-S. 16.

ultra vires; but that, as no such general Dominion legis-
lation was in existence, the Quebec statute was intra vires
as relating to a matter which, as the law stood, must be
taken to be a matter of local concern in Quebec.

In Dow v. Black (a), an Act of the New Brunswick
legislature authorizing a levy to pay a ” bonus ” to a rail-
way extending beyond the boundaries of the province was
upheld under this sub-section.

In Hodge v. The Queen (b), the regulation of taverns,
etc., was held to fall within this sub-section, although in
the earlier case of Russell v. The Queen (c), the ” local
option ” character of the Canada Temperance Act did not,,
in the opinion of the Committee, make that Act other than
one for the peace, order and good government of Canada,
falling within the residuary clause of section 91 :

” The Act as soon as it was passed became a law for the whole
Dominion, and the enactment of the first part, relating to the
machinery for bringing the second part into force, took effect, and
might be put in motion at once and everywhere within it.
The manner of bringing the prohibitions and penalties into force,
which parliament has thought fit to adopt, does not alter its
general and uniform character. Parliament deals with the sub-
ject as one of general concern to the Dominion, upon which
uniformity of legislation is desirable, and the parliament alone
can so deal with it.”

In Hodge v. The Queen the regulations there supported
were said not to conflict with the Canada Temperance Act,
“which was not locally adopted.” In a number of the
cases which dealt with the question of the power of a pro-
vincial legislature to deal with certain phases of the liquor
traffic, dicta are to be found to the effect that the exercise
of regulative power falls within this sub-section as a,

(a) L. R. 6 P. C. 272.

(b) 9 App. Gas. 117.

(c) 1 App. Gas. 829.

THE B. N. A. ACT SEC. 92, S.-S. 16. 487

matter of ” police ” (d), for the repression of disorderly and
riotous conduct such as would injuriously affect local
morals and local good government; but there can be no
doubt that upon the adoption of the Canada Temperance
Act all such provincial powers in relation to that traffic
would be overborne.

And so as to ” nuisances/’ it was held in Ex parte /
Pillow (e), that the power of a provincial legislature to
pass, or to authorize a municipal body to pass, laws for
their abatement as being injurious to the public health of
the community, was not in conflict with the power of the
parliament of Canada to pass, as part of the criminal law
of the Dominion, a general law as to nuisances.

In Bennett v. The Pharmaceutical Association (/), it-
was held by Chief Justice Dorion :

” The determining of the age or other qualifications, required
by those residing in the province of Quebec, to manage their own
business, or to exercise certain professions or certain branches of
business attended with danger or risk for the public, are local
subjects in the nature of internal police regulations ; and in pass-
ing laws upon those subjects, even if those laws incidentally
affect trade and commerce, it must be held that this incidental
power is included in the right to deal with the subjects placed
especially under their control, the exercise of which can not be
considered to be unconstitutional. The Pharmacy Act of 1875,
in so far as this case is concerned, does not regulate trade and
commerce. It merely determined the status of persons exercising
the business of chemist and druggist. This is a civil right
coming clearly within the powers of the local legislature.”

(d) See the cases collected in the notes to s. 91, s-s. 2, ante, p. 359,
et seq. In Slavin v^Orillia, the late Sir Wm. Richards collects a num-
ber of American authorities as to “police ” powers.

(e) 27 L. C. Jur. 216 ; 3 Cart. 357. See also Reg. v. Wason, noted
under s-s. 15 ; it would support laws as to ” nuisances ” as being for the
protection of property and civil rights.

(/) 1 Dor. 336 ; 2 Cart. 250.

488 THE B. N. A. ACT SEC. 92, S.-S. 16.

It has been held (</), by the full Court of Queen’s Bench
of Manitoba that provincial Acts, regulating the killing and
possession of game at certain seasons of the year, are
intra vires. Mr. Justice Killarn, in delivering the judg-
ment of the court, refers to the action of the Dominion
parliament in not assuming to pass any such laws, and to|
their action in placing among the subjects of legislation by
the Council of the North- West Territories the subject

THE B. N. A. ACT SEC. 93. 509

merits, or of the decision of the “provincial authority”
(whatever that may be taken to mean) mentioned in the sub-
section. The appeal, therefore, would seem to be limited
to supervising and suggesting alterations to provincial
enactments, “affecting any right or privilege of the Pro-
testant or Roman Catholic minority of the Queen’s subjects,
in relation to education.” In the event of the ruling,
decision, or whatever it* may be called, of the Dominion
executive not being duly executed by the provincial
authorities, the provisions of sub-section 4, may be invoked.
But as a condition precedent to any right to interfere with
provincial legislation, one must be able to predicate that in
the province concerned there exists any “right or privilege”
enjoyed by the Protestant or Roman Catholic minority in
such province, and that the provincial legislation com-
plained of affects such right or privilege. It is to be noted
that the word ‘prejudicially’ does not occur in this sub-
section, and this bears out the view for which we have
been contending, that interference on the part of the!
Dominion authorities can properly take place only in con- 1
nection with valid provincial legislation. Legislation
prejudicially affecting such right or privilege is void.
Legislation affecting it otherwise than prejudicially is valid,
but may be clumsy and unworkable. Such defects the
parliament of Canada can remedy.

We have attempted in a former place to summarize the
rights and privileges enjoyed by the religious minorities of
Ontario and Quebec, and, as to the other provinces, the posi-
tion would seem to be, at best from the separatist stand-
point that indicated in the judgment of the Privy Council
in Winnipeg v. Barrett, although, perhaps, it is matter of
doubt whether the rights and privileges there enumerated
as to Manitoba, exist to their full extent in the other pro-
vinces. In fact, the judgment in Ex parte Renaud
(affirmed, as we have seen, in the Privy Council) seems to
indicate that in the provinces other than Ontario, Quebec,
and Manitoba, religious denominations have no “right or

510 THE B. N. A. ACT SEC. 93.

privilege” by law in respect to education, within the mean-
ing of, and requiring the protection of, the various sub-
sections of section 93. The question which suggests itself
i as doubtful is as to the power to entirely prohibit denom-
/ inational schools, or, in other words, to compel universal
attendance at state schools.

The North- West Territories.

The parliament of Canada having power (subject always

to the paramount legislative supremacy of the Imperial

parliament) to pass laws for the ” peace, order and good

government” of these territories, not as yet elevated topro-

^-^. vincial dignity (s), the position of affairs there is as yet

/I \e m jp?j>ic. ^ n res P e ct to educational matters, the powers

I of the Legislative Assembly are at present circumscribed,
as will appear from the following section of the North- West

I Territories Act R. S. C., c. 50.

14. The Lieu tenant- Governor in Council (t) shall pass all
necessary ordinances in respect to education ; but it shall
therein always be provided, that a majority of the ratepayers of
any district or portion of the Territories, or of any less portion
or sub-division thereof, by whatever name the same is known,
may establish such schools therein as they think fit, and make
the necessary assessment and collection of rates therefor ; and
also that the minority of the ratepayers therein, whether Protes-
tant or Roman Catholic, may establish separate schools therein
and in such case, the ratepayers establishing such Protestant
or Roman Catholic separate schools shall be liable only to
assessments of such rates as they impose upon themselves in
respect thereof :

2. The power to pass ordinances, conferred upon the Lieu-
tenant-Governor by this section is hereby declared to have been
vested in him from the seventh day of May, 1880.

(s) See ante, p. 347. The position of these Territories will be dealt
with more at length in Part IV.

(t) Now the Legislative Assembly. See post.

THE B. N. A. ACT SEC. 94. 511

It is much to be hoped that when (as will doubtless
soon be the case) new provinces are erected in these Terri-
tories, they will be given full control of educational
matters. In expressing this hope we perhaps ” travel
beyond the record.”

Uniformity of Laws in Ontario, Nova
Scotia and New Brunswick.

94. Notwithstanding anything in this f^uiifSm-
Act, the Parliament of Canada may make tiJePro- 81E
provision for the uniformity of all or any
of the laws relative to property and civil
rights in Ontario, Nova Scotia and New
Brunswick, and of the procedure of all
or any of the Courts in those three Pro-
vinces ; and from and after the passing
of any Act in that behalf the power of
the Parliament of Canada to make laws
in relation to any matter comprised in
any such Act shall, notwithstanding any-
thing in this Act, be unrestricted; but any
Act of the Parliament of Canada making
provision for such uniformity shall not
have effect in any Province unless and
until it is adopted and enacted as law
by the Legislature thereof.

/ Nothing has ever been done toward carrying out this
(idea. The only use to which the section has been put has
been in utilizing the expression “property and civil rights”
which occurs in it as a key to the interpretation of the
same term in sub-section 13 of section 92. The passage in
Citizens v. Pajsons is quoted at length in the notes to that
sub-section.

512

THE B. N. A. ACT SECS. 95-7.

powl r o? nt

Agriculture and Immigration.

95. In each Province the Legislature
may make laws in relation to Agriculture

Agriculture, . J ………

*c- in the Province, and to Immigration into

the Province ; and it is hereby declared
that the Parliament of Canada may from
time to time make laws in relation to
Agriculture in all or any of the Provinces,
and to Immigration into all or any of the
Provinces ; and any law of the Legislature
of a Province relative to Agriculture or to
Immigration shall have effect in and for
the Province as long and as far only as it
is not repugnant to any Act of the Parlia-
ment of Canada.

See ante, p. 215, as to the bearing of this section on the
general question of ” concurrent ” powers.

Appointment
of Judges.

tion of
udges in
Ontario, &c.
\

YII . JUDICATURE .

96. The Governor-General shall ap-
point the Judges of the Superior, District,,
and County Courts in each Province, ex-
cept those of the Courts of Probate in
Nova Scotia and New Brunswick.

97. Until the laws relative to pro-
perty and civil rights in Ontario, Nova
Scotia, and New Brunswick, and the pro-
cedure of the Courts in those Provinces,
are made uniform, the Judges of the
Courts of those Provinces appointed by
the Governor-General shall be selected

THE B. N. A. ACT SECS. 98-100. 513

from the respective Bars of those Pro-
vinces.

98. The Judges of the Courts of fSgeftS of
Quebec shall be selected from the Bar of Que
that Province.

99. The Judges of the Superior
Courts shall hold office during good
behaviour, but shall be removable by the
Governor-General on address of the Sen-
ate and House of Commons.

100. The salaries, allowances, and
pensions of the Judges of the Superior,
District, and County Courts (except the
Courts of Probate in Nova Scotia and
New Brunswick), and of the Admiralty
Courts in cases where the Judges thereof
are for the time being paid by salary,
shall be fixed and provided by the Parlia-
ment of Canada.

” Judicature” We have already devoted a chapter to
a discussion of our judicial system (u), and it remains now
merely to refer to the question of the ” tenure of office ” of
those judges whose appointment under the 96th section is.
with the Dominion government. The B. N. A. Act con-
tains no express provision beyond section 99, which applies
only to the Superior Court judges, and beyond what may
be inferred from the provision in section 100 that the
salaries of all these judges are to be ” fixed and provided ”
by the parliament of Canada.

Does the power to appoint carry with it the power to
remove ? It is submitted that it does, and that, not with –

(u) See chapter XI. and notes to s. 92, s-s. 14.
CAN. CON. 33

514 THE B. N. A. ACT SEC. 101.

standing sub-section 14 of section 92 by which “the
administration of justice in the province” is assigned to
provincial legislatures, the parliament of Canada alone can
legislate (subject, as to Superior Court judges, to section 99)
as to the qualifications and nature of tenure (including, of
course, provisions as to removal from office) of the judges
mentioned in section 96. In Re Squier (v) the validity of
a commission of enquiry issued by the Governor- General
purporting to be under the Imperial Act (22 Geo. III. c. 75)
relating to the removal of colonial officers, was in question.
It seems to have been admitted on the argument and held
by the court that the legislative assembly of Ontario,
had no power to abolish the old Court of Impeachment
established before Confederation by the parliament of (old)
Canada for trying complaints against County Court
judges C. S. U. C. c. 14. The precise ground is not stated,
but as a proceeding under the Consolidated Statute is
enumerated as one of the methods of attack then open, the
decision could not have been based on the ground of the
” repugnancy ” of such provincial legislation to Imperial
enactment. Such ground would equally affirm the inval-
idity of the original Act, and the decision therefore must
be taken to be that legislation in reference to the removal
of those judges mentioned in section 96 must come from
the Dominion parliament.

101- The Parliament of Canada may,
notwithstanding anything in this Act,
from time to time, provide for the con-
stitution, maintenance, and organization
of a general Court of Appeal for Canada,
and for the establishment of any addi-
tional Courts for the better administra-
tion of the Laws of Canada.

46 U. C. Q. B. 474.

THE B. N. A. ACT SEC. 101. 415

This section, too, has already been fully discussed. In I

the Union to the Province of Canada

shall be the property of Ontario and Que-
bec conjointly.

THE FOURTH SCHEDULE.

Assets to be the Property of Ontario and Quebec conjointly*
Upper Canada Building Fund,
Lunatic Asylums.

520 THE B. N. A. ACT SECS. 114, 115.

Normal School.
Court Houses, ”
in

Aylmer.

Lower Canada.

Montreal.

Kamouraska.

Law Society, Upper Canada.

Montreal Turnpike Trust.

University Permanent Fund.

Royal Institution.

Consolidated Municipal Loan Fund, Upper Canada.

Consolidated Municipal Loan Fund, Lower Canada.

Agricultural Society, Upper Canada.

Lower Canada Legislative Grant.

Quebec Fire Loan.

Tamiscouata Advance Account.

Quebec* Turnpike Trust.

Education East.

Building and Jury Fund, Lower Canada.

Municipalities Fund.

Lower Canada Superior Education Income Fund.

sc e o b tia fNova 114. Nova Scotia shall be liable to
Canada for the amount (if any) by which
its public debt exceeds at the Union eight
million dollars, and shall be charged with
interest at the rate of five per centum per
annum thereon.

115. New Brunswick shall be liable
to Canada for the amount (if any) by
which its public debt exceeds at the
Union seven million dollars, and shall be
charged with interest at the rate of five
per centum per annum thereon.

THE B. N. A. ACT SECS. 116-118. 521

116. In case the public debts of Nova

Scotia and New Brunswick do not at the SSiNew^
Union amount to eight million and seven
million dollars respectively, they shall
respectively receive by half-yearly pay-
ments in advance from the Government
of Canada interest at five per centum per
annum on the difference between the
actual amounts of their respective debts
and such stipulated amounts.

117- The several Provinces shall rg.-
tain all their respective public property p<
not otherwise disposed of in this Act, sub-
ject to the right of Canada to assume any ”
lands or public property required for for-
tifications or for the defence of the coun-
try.

118- The following sums shall be
paid yearly by Canada to the several Pro-
vinces for the support of their Govern-
ments and Legislatures :

Dollars.

Ontario – – – – Eighty thousand.
Quebec – – – – Seventy thousand.
Nova Scotia – – – Sixty thousand.
New Brunswick – – Fifty thousand.

Two hundred and sixty thousand ;
and an annual grant in aid of each Pro-
vince shall be made, equal to eighty cents
per head of the population as ascertained
.by the Census of one thousand eight hun-

522 THE B. N. A. ACT SECS. 119, 120.

dred and sixty-one, and in the case of
Nova Scotia and New Brunswick, by each
subsequent decennial Census until the
population of each of those two Provinces
amounts to four hundred thousand souls,
at which rate such grant shall thereafter
remain. Such grants shall be in full
settlement of all future demands on Can-
ada, and shall be paid half-yearly in
advance to each Province ; but the Gov-
ernment of Canada shall deduct from such
grants, as against any Province, all sums
chargeable as interest on the Public Debt
of that Province in excess of the several
amounts stipulated in this Act.

Further grant JJQ New Brungwick ghall reC eive

by half-yearly payments in advance from
Canada for the period of ten years from
the Union an additional allowance of
sixty-three thousand dollars per annum ;
but as long as the Public Debt of that
Province remains under seven million
dollars, a deduction equal to the interest
at five per centum per annum on such
deficiency shall be made from that allow-
ance of sixty-three thousand dollars.

120- All payments to be made under
this Act, or in discharge of liabilities
created under any Act of the Provinces of
Canada, Nova Scotia, and New Bruns-
wick respectively, and assumed by Can-
ada, shall, until the Parliament of Can-

THE B. N. A. ACT SECS. 121-124. 523

ada otherwise directs, be made in such
form and manner as may from time to
time -be ordered by the Governor- General
in Council.

121. All articles of the growth, pro-
duce, or manufacture of any one of the &< Provinces shall, from and after the Union, be admitted free into each of the other Provinces. 122. The Customs and Excise Laws of each Province shall, subject to the Laws! xc provisions of this AcV.continue in force until altered by the Parliament of Canada. 123- Where Customs duties are, at SmporTa- the Union, leviable on any goods, wares, tw?en s tw e o . -n Provinces. or merchandises in any two Provinces, those goods, wares, and merchandises may, from and after the Union, be im- ported from one of those Provinces into the other of them on proof of payment of the Customs duty leviable thereon in the Province of exportation, and on pay- ment of such further amount (if any) of Customs duty as is leviable thereon in the Province of importation. 124- Nothing in this Act shall affect p n u SJ e b w r dues the right of New Brunswick to levy the B lumber dues provided in chapter fifteen of title three of the Eevised Statutes of New Brunswick, or in any Act amending that (d) See note (vi) following section 126, post. 524 THE B. N. A. ACT SECS. 125, 126. Act before or after the Union, and not increasing the ajnount of such dues ; but the lumber of any of the Provinces other than New Brunswick shall not be subject to such dues. 125- No lands or property belonging to Canada or any Province shall be liable to taxation (e). 126- Such portions of the duties and Fund uue revenues over which the respective Legis- latures of Canada, Nova Scotia, and New Brunswick had before the Union power of appropriation as are by this Act reserved to the respective Governments or Legis- latures of the Provinces, and all duties and revenues raised by them in accord- ance with the special powers conferred upon them by this Act, shall in each Pro- vince form one Consolidated Ee venue Fund to be appropriated for the public service of the Province. (i) ” Revenues, etc” In arriving at a determination of the line of division of revenues, etc., effected by this group of clauses we must bear in mind what is said by Lord Watsen in delivering the judgment of the Judicial Com- mittee of the Privy Council in a case to ‘ which we have already had occasion to refer St. Catharines’ Millii v. The Queen (/): ” There can be no a priori probability that the British Legis- lature, in a branch of the statute which professes to deal only (e) See note (vii) following section 126, post. (/’) 14 App. Gas. 46, at p. 59. See notes to sec. 91, s-s. 24, ante. THE B. N. A. ACT SEC. 126. 525 with the distribution of legislative power, intended to deprive the provinces of rights which are expressly given them in that branch of it which relates to the distribution of revenues and assets.” by way of application of which rule to the case then in hand, he says : ” The fact that the power of legislating for Indians, and for lands which are reserved to their use, has been entrusted to the parliament of the Dominion is not in the least degree inconsistent with the right of the provinces to a beneficial, interest in those lands, available to them as a source of revenue whenever the estate of tlie Crown is disencumbered of the Indian title.” It is matter for remark, too, that in construing these sections, the Committee has taken into consideration the ” high political nature ” of the B. N. A. Act. In Attorney- General of-Dfitario v^Mexcer (g), they speak of ” the attri- bution of royal territorial rights for purposes of revenue and government.” Their reference in the later case to a priori probabilities indicates the use of aids to the inter- pretation of these sections somewhat wider than those which they have felt free to use in construing the various sub-sections of sections 91 and 92, which provide for the division of the field of subject matters proper for legisla- tive action between the Dominion and the provinces. Owing to the reference made in these sections to the power of appropriation over the duties and revenues arising in the pre-Confederation provinces we may refer to what has been already said in chapter II. (h). Taking up the thread at the date of the Union Act, 1840, the Committee thus characterize its provisions upon this head (i) : ” By an Imperial statute passed in the year 1840 (3 & 4 Vic. c. 35) the provinces of Ontario and Quebec, then known as Upper and Lower Canada, were united under the name of the Province of Canada, and it was, inter alia,’ enacted that in consideration of certain annual payments which Her Majesty had agreed ta (g) 8 App. Gas. 767.\ (h) Ante, p. 35, et seq. : App. Gas. at p. 55. 526 THE B. N. A. ACT SEC. 126. aceept by way of * civil list,’ the produce of all territorial and other revenues at the disposal of the Crown arising in either of the united provinces should be paid into the Consolidated Eevenue Fund of the said province. There was no transfer to the province of any legal estate in the Crown lands, which con- tinued to be vested in the Sovereign ; but all monies realized by sales or in any other manner became the ^property of the province. In other words, all beneficial interest in such lands within the provincial boundaries belonging to the Queen, and either producing or capable of producing revenue, passed to the province, the title still remaining in the Crown. That continued to be the right of the province until the passing of the British North America Act, 1867.” The Consolidated Revenue Fund created by this Act was to be appropriated subject to the payment of the ” civil list ” charges by the Canadian parliament ” for the public service in such manner as they shall think proper.” We should, perhaps, point out that the 42nd section of the Union Act, 1840, limited the right of the then province to dispose of the ” waste lands of the Crown,” but this section was repealed by 17 & 18 Vic. c. 118, s. 6. We may refer also to the Imperial Act, 10 & 11 Vic. c. 71, which handed over to the province the control of the civil list. Prior to Confederation, therefore, the parliament of (old) Canada had the fullest power of appropriation over these territorial and other revenues, as had also the assemblies of the Maritime Provinces over the revenues therein arising (j). The scheme of division of assets, etc., effected by the B. N. A. Act has been the subject of exhaustive examination by the Judicial Committee of the Privy Council in the two cases to which we have above referred. We quote from the judgment in the later case (k) : et seq See note (b), ante, p. 40. (k) St. Catharines’JMillingjCo. v. The Queen, 14 App. Gas. at p. 56 THE B. N. A. ACT SEC. 126. 527 ” The Act also contains careful provisions for the distribu- tion of legislative powers and of revenues and assets between/ the respective provinces included in the Union, on the one hand, ( and the Dominion on the other. The conflicting claims to the ceded territory maintained by the Dominion and the province of Ontario are wholly dependent upon these statutory provisions. In construing these enactments it must be always kept in view that, wherever public land with its incidents is described as ‘ the property of ‘ or as ‘ belonging to ‘ the Dominion or a nrp- yince, these expressions merely import that the right to its beneficial use, or to its proceeds, has been appropriated to the Dominion or the province, as the case may be, and is subject to the”cohtrol of its legislature, the land itself being vested in the Crown. ” Section 108 enacts that the public works and undertakings enumerated in Schedule 3 shall be the property of Canada. As ( specified in the Schedule, these consist of public undertakings j which might be fairly considered to exist for the benefit of all the provinces federally united, of lands and buildings necessary* for carrying on the customs or postal service of the Dominion, or required for the purpose of national defence, and of * lands set apart for general public purposes.’ It is obvious that the enumeration cannot be reasonably held to include Crown lands which are reserved for Indian use. The only other clause in the Act by which a share of what previously constituted provincial revenues and assets is directly assigned to the Dominion is sec- / tion 102. It enacts that all ‘ duties and revenues ‘ over which the respective legislatures of the united provinces had and have power of appropriation, ‘ except such portions thereof as are by this Act reserved to the respective legislatures of the provinces, or are raised by them in accordance with the special powers con- ferred upon them by this Act,’ shall form one consolidated ^ fund, to be appropriated for the public service of Canada. The\ extent to which duties and revenues arising within the limits of Ontario, and over which the legislature of the old province of Canada possessed the power of appropriation before the passing of the Act, have been transferred to the Dominion by this clause, can only be ascertained by reference to the two excep- tions which it makes in favor of the new provincial legislatures. 528 THE B. N. A. ACT SEC. 126. ” The second of these exceptions has really no bearing on the present case, because it comprises nothing beyond the revenues which provincial legislatures are empowered to raise by means of direct taxation for provincial purposes in terms of sec- ion 92 (2). The first of them, u’lnch appears to comprehend the irliole sources of revenue reserved to the provinces by section 109, is of material consequence.” After quoting this section at length, the judgment proceeds : “In connection with this clause it may be observed that by section 117 it is declared that the pro- vinces shall retain their respective public property not otherwise disposed of in the Act, subject to the right of Canada to assume any lands or public property required for fortifications or for the defence of the country. A different form of expression is used to define the subject matter of the first exception, and the pro- perty which is directly appropriated to the provinces ; but it hardly admits of doubt that the interests in land, mines, minerals, and royalties, which by section 109 are declared to belong to the pro- vinces, include, if they are not identical with, the ‘ duties and irrenues ‘ first exceptecl in section 102. 61 The enactments of section 109 are, in the opinion of their Lordships, sufficient to give to each province, subject to the administration and control of its own legislatnre, the entire bene- f Jicial interest of the Crown in all lands within its boundaries, which *^ at the time of the Union were vested in the Crown, with the ex- ception of such lands as the Dominion acquired right to under section 108, or might assume for the purposes specified in section 117. Its legal effect is to exclude from the ‘duties and reve-‘ nues ‘ appropriated to the Dominion all the ordinary territorial revenues of the Crown arising within the provinces. That con- struction of the statute was accepted by this Board in deciding Attorney -General of Ontario v. Mercer, where the controversy related to land granted in fee simple to a subject before 1867, ‘ which became escheat to the Crown in 1871. The Lord Chan- cellor (Earl Selborne) in delivering judgment in that case said : ‘ It was not disputed in the argument for the Dominion at the bar, that all territorial revenues arising within each province from lands (in which term must be comprehended all estates in land) which at the time of the Union belonged to the Crown, were reserved to the respective provinces by section 109; and it THE B. N. A. ACT SEC. 126. 529 -was admitted that no distinction could, in that respect, be made between lands then ungranted, and lands which had previously reverted to the Crown by escheat. But it was insisted that a line was drawn at the date of the Union, and that the words were not sufficient to reserve any lands afterwards escheated which at the time of the Union were in private hands, and did not then belong to the Crown.’ Their Lordships indicated an opinion to the effect that the escheat would not, in the special circumstances of that case, have passed to the province as ‘ lands ‘ ; but they/ lield that it fell within the class of rights reserved to the prov-j ince as ‘royalties’ by section 109. ” . . . The ceded territory was at the time of the Union land vested in the Crown, subject to ‘an interest other than that of the province in the same,’ within the meaning of section 109 ; and must now belong to Ontario in terms of that clause, unless its rights have been taken away by some provision of the Act of 1867 other than those already noticed.” Any controlling effect which might be claimed in respect of ” lands reserved for the Indians ” by reason of the legis- lative power of the Dominion in respect thereof is negatived in the passage already quoted (I). In Attorney-General of Ontario v. Mercer (m) the meaning of the word ” royalties ” was discussed and without deciding whether it does or does not cover royal rights other than those connected with lands, mines, and minerals, it was held that it does cover all royal rights jura regalia omnia ad fiscum spectantia connected with those three subjects, and escheats within a province were adjudged to belong to such province and not to the Dominion. In the case of The Liquidators of the Maritime Bank v. The Receiver-General of New Brunswick (n) it has just TDeen held that the prerogative right of the Crown to claim Apriority for debts due the Crown over the claims of private (I) Ante, p. 525. (m) 8 App. Gas. 767. See Church v. Blake, 2 Q. L. K. 236. (n) 8 Times L. R. 677. CAN. CON. 34 530 THE B. N. A. ACT SEC. 126. creditors, is a prerogative right vested in the Lieutenant- Governor of a province so far as relates to debts due the Crown as representing such province a decision which would appear to show that it was not necessary to rely solely upon the word ” royalties ” as vesting in the provinces (or in the Lieutenant-Governors as chief executive officers thereof) the Crown’s prerogative rights in connection with lands escheated for want of heirs. See, however, Attorney- General of British Columbia v. Attorney-General of Can- ada (o), in which the Committee held that a conveyance by the province to the Dominion of “public lands” was, in sub- stance, an assignment merely of its right to appropriate the territorial revenues arising therefrom, and could not with- out express evidence of intention in that behalf, be con- strued as a transfer of the precious metals in, upon and under such lands, the revenues derivable therefrom not being incident to the land (as are mines of baser metal), but arising from the prerogative rights of the Crown, which, under the word ” royalties,” passed to the provinces by force of section 109. In reference to those sections of this group VIII. which deal with the financial arrangements agreed upon by the provinces as the basis of the federal Union, we deem it unnecessary to say anything here. ” Better terms ” have been sought and granted in the case of a number of the provinces (p). The whole policy of provincial ” subsidies ” has been the subject of much adverse comment, but, in any case, these financial arrangements are hardly matter for discussion in a work of this kind. The same may be said of the ” interprovincial free trade,” section (121). (ii) “Public Harbours.” It was held in Holman v. Green (q) by the Supreme Court of Canada that this in- fo) 14 App. Gas. 295. See post, Part IV, Chap. XV. (p) See a short resume of them in Houston, ” Const. Doc. of Canada,,” p, 237. (q 6 S. C. R. 707. THE B. N. A. ACT SEC. 126. 531 eludes all harbours, together with the bed and soil thereof, which the public have the right to use, and is not limited to such as at the date of the Union had been artificially constructed or improved at the public expense; and where a grant of the foreshore of a natural harbour used as such by the public was made by a provincial government, the grant was held invalid. (iii) “Rivers and Lake Improvements.” ” Rivers” is a- mistake. River improvements are clearly intended. See per Gwynne, J., in Reg, v. Robertson (r). In the Quebec Resolutions it appears as “River and Lake Improvements.” (iv) “Railways, etc.” In Western Counties^ Ry. Co. vl Windsor & Annapolis Ry. Co. (s) it was held by the Judicial Committee of the Privy Council that the Dominion govern-1 rnent acquired provincial railways i.e., government rail- ways subject to all claims against them, or, in other words, ( for no larger interest than the province had in them. It was a quaere with the Committee whether the parliament of Canada could afterwards legislate in derogation of claims against, or obligations incurred by, the province in respect of such railways. (v) ” Ordnance property.” See Kennedy v. Toronto (), (vi) “Lumber Dues in New Brunswick” The right to levy these duties was surrendered in 1871, upon certain terms as set out in 36 Vic. c. 41 (Dom.). (vii) “Exemption of public lands, etc” See Church v. Fenton (u), and Reg. v. Wellington (v). In Attorney- General of Canada v. Montreal (w) it was held by the Supreme Court of Canada that lands under lease to the Do- (r) 6 S. C. R. at pp. 98-99. (s) 7 App. Gas. 178. (t) 12 O. R. 201. (it) 5 S. C. R. 239 ; see notes to sec. 91, s-s. 24. (v) 17 O. A. R. 421 ; sub nom. Quirt v. Reg. 19 S. C. R. 510. (w) 13 S. C. R. 352. 532 THE B. N. A. ACT SECS. 127, 128. minion government for military purposes cannot be taxed for municipal purposes ; on the other hand, in Attorney- General of Canada v. Toronto (x) the Dominion govern- ment was held liable to pay water rates as being the price charged for a commodity furnished. IX. MISCELLANEOUS PKOVISIONS. General. 127- If any person being at the pass- ng of this Act a Member of the Legisla- ing Senators. tive Council of Canada, Nova Scotia, or New Brunswick, to whom a place in the Senate is offered, does not within thirty days thereafter, by writing under his hand addressed to the Governor- General of the Province of Canada or to the Lieutenant- Governor of Nova Scotia or New Bruns- wick (as the case may be), accept the same, he shall be deemed to have declined the same; and any person who, being at the passing of this Act a member of the Legislative Council of Nova Scotia or New Brunswick, accepts a place in the Senate shall thereby vacate his seat in such Legislative Council. San h ce f &c! e ” 128- Every member of the Senate or House of Commons of Canada shall be- fore taking his seat therein take and sub- scribe before the Governor- General or some person authorized by him, and every member of a Legislative Council or Legis- (x) 18 O. A. E. 622. THE B. N. A. ACT SEC. 128. 533 lative Assembly of any Province shall before taking his seat therein take and subscribe before the Lieutenant- Governor of the Province or some person authorized by him, the oath of allegiance contained in the fifth Schedule to this Act ; and every member of the Senate of Canada and every member of the Legislative Council of Quebec shall also, before taking his seat therein, take and subscribe be- fore the Governor-General, or some person authorized by him, the declaration of qualification contained in the same Schedule. THE FIFTH SCHEDULE. OATH OF ALLEGIANCE. I, A. B. do swear, That I will be faithful and bear true Alle- giance to Her Majesty Queen Victoria. Note. The name of the King or Queen of the United Kingdom of Great Britain and Ireland for the time being is to be substituted from time to time, ivith proper terms of reference thereto. DECLARATION OF QUALIFICATION. I, A. B. do declare and testify, That I am by law duly quali- fied to be appointed a member of the Senate of Canada [or as the case may be] , and that I am legally or equitably seised as of free- hold for my own use and benefit of lands and tenements held in free and common socage [or seised or possessed for my own use and benefit of lands or tenements held in franc-alleu or in roture 534 THE B. X. A. ACT SEC. 129. (or as the case mag be),’] in the province of Nova Scotia [or as the case may be] of the value of four thousand dollars over and above all rents, dues, debts, mortgages, charges, and incumbrances due or payable out of or charged on or affecting the same, and that I have not collusively or colourably obtained a title to or become possessed of the said lands and tenements or any part thereof for the pur- pose of enabling me to become a member of the Senate of Canada [or as the case may be], and that my real and personal property are together worth four thousand dollars over and above my debts and liabilities. Sext u ing ce 129- Except as otherwise provided cSioOTMko? 81 by this Act, all laws in force in Canada, Nova Scotia, or New Brunswick at the Union, and all Courts of civil and criminal jurisdiction, and all legal commissions, powers and authorities, and all officers, judicial, administrative and ministerial, existing therein at the Union, shall con- tinue in Ontario, Quebec, Nova Scotia, and New Brunswick respectively, as if the Union had not been made; subject nevertheless (except with respect to such as are enacted by or exist under Acts of the Parliament of Great Britain or of the Parliament of the United Kingdom of Great Britain and Ireland), to be repealed, abolished, or altered by the Parliament of Canada, or by the Legislature of the re- spective Province, according to the authority of the Parliament or of that Legislature under this Act. We have already had such frequent occasion to refer to this section (y), that we need here only sum up what has (y) See particularly p. 49, et seq, and p. 200. THE B. N. A. ACT SEC. 129. 535 Leen already said and refer to some of the more important decisions which deal with the question of its construction and effect. The legislative bodies which were, after the Union, to make law for the Dominion and for the respective pro- vinces have their ” constitution ” and powers provided for in other sections of the Act. The different spheres of authority are defined. But, apart from these necessary provisions, account had to be taken of the body of laws and legal institutions the executive staff, administrative and judicial existing in the provinces at the Union, and this is done by the section in question. The whole body of laws common law and statutory! enactments was continued, but w T ith a clear line of divi- >
sion drawn through it by this section. Any alteration of i
that law, any Act in amendment of it, can now be enacted j
only by that legislature which, if the law which it is-
desired to repeal or alter were non-existent, could now j
enact it. As an example of the application of this rule to
provisions of the common law in force in any province at
the date of Confederation we may refer to the decision of
the Supreme Court of Canada in Qnp.Hdy Tfri^ar Boom
Co. v. Davidson (0), in which a provincial Act was held
inoperative to authorize the obstruction of a navigable
river. The cases in reference to the amendment or repeal
of provincial Acts of date prior to 1867 are numerous.
We have from time to time referred to many of them.
Dobie v. Temporalities Board (a), is the leading case.
Upon the secularization of the ” Clergy Reserves,” a
statutory commutation of the claims of the then Presby-
terian clergy upon the revenues derivable from these
‘” Reserves ” was effected, and by an Act of the province of
Canada a Board was incorporated for the management of
the fund so created. After Confederation, in contempla-

(z) 10 S. C. K. 222 ; see ante, p. 383.
(a) 7 App. Gas. 136 ; see ante, p. 319.

536 THE B. N. A. ACT SEC. 129.

tion of the union of the various Presbyterian bodies-
throughout Canada, the Quebec legislature passed an Act
(38 Vic. c. 64), providing for the future disposal of this
fund in the event of the union taking place. Somewhat
similar legislation had taken place in Ontario (b). In the
view of the Committee, the corporation and the corporate
funds were not capable of division according to the limits
of provincial authority, and the Quebec Act was therefore
< held invalid : ” The Act of the parliament of the province of Canada was, after the passing of the B. N. A. Act, 1867, continued in fore 6 within the provinces of Ontario and Quebec by virtue of section 129 of the latter statute. . . . The powers conferred by this section upon the provincial legislatures of Ontario and Quebec to repeal and alter the statutes of the old parliament of the province of Canada, are made precisely co- extensive with the powers of direct legislation with which these bodies are in- vested by the other clauses of the Act of 1867. In order, therefore, to ascertain how far ‘the provincial legislature of Quebec had power to ‘alter and amend the Act of 1858, incor- porating the Board for the^ management of the Temporalities- Fund, it becomes necessary to revert to sections 91 and 92 of the B. N. A. Act, which enumerate and define the various matters which are within the exclusive legislative authority of the par- liament of Canada, as well as those in relation to which the legislatures of the respective provinces have the exclusive right of making laws. If it could be established that, in the absence of all previous legislation on the subject, the legislature of Que- bec would have been authorized by section 92 to pass an Apt identical in its terms with the Act of 1858, then it would follow that that Act has been validly amended by the 38 Vic. c. 64. On the other hand, if the legislature of Quebec has not derived such power of enactment from section 92, the necessary infer- ence is that the legislative authority required in terms of section 129 to sustain its right to repeal or alter an old law of the par- liament of the province of Canada is in this case wanting.” (&) See Cowan v. Wright, 23 Grant 616. THE B. N. A. ACT SEC. 130. 53T Upon an examination of the Act of 1858, the Committee was of opinion that it could not have been validly passed by the Quebec legislature and could not therefore after the Union be altered or amended by provincial legis- lation (c). In reference to the continuation of existing courts we need add nothing to what was said in chapter XI. (d)l beyond drawing attention to the fact that the Determina- tion of the line between ” the authority of the parliament or of that legislature under this Act ” in relation to courts>
their organization and procedure, is one of the most difficult-
tasks set by the B. N. A. Act.

In reference to the executive staff, this section should
be read in connection with sections 130 and 131, and (as to
Ontario and Quebec) 134 and 135. We need here do no
more than refer to previous pages on which the question is,
discussed (e).

r

130. Until the Parliament of Canada o/SSs to
otherwise provides, all officers of the Cf
several Provinces having duties to dis-
charge in relation to matters other than
those coming within the classes of sub-
jects by this Act assigned exclusively to
the Legislatures of the Provinces shall
be officers of Canada, and shall continue
to discharge the duties of their respective
offices under the same liabilities, respon-

(c) See also Willett v. DeGrosbois (ante, p. 285) ; Noel v. Eichmond 1
(ante, p. 362) ; Cooey v. Brome (ante, p. 361) ; Hart v. Mississquoi (ante,
p. 361) ; Munn v. McCannell, 2 P. E. E. 148 ; Keefe v. McLennan, 2 Euss.
& Ches. 5 ; 2 Cart. 400 ; Eeed v. Mousseau, 8 S. C. E. 408 ; Peak v. Shields,.
6 O. A. E. 639. Note also s. 137, post.

(d) Ante, p. 227, et seq. See also notes to s. 91, s-s. 27, s. 92, s-s. 14,.
and s. 101.

(e) Ante, p. 49, et seq.; Eeg. v. Eeno, 4 P. E. (Ont.) 294.

538 THE B. N. A. ACT SEC. 131, 132.

sibilities, and penalties as if the Union
had not been made.

In Regina v. Horner (/), Mr. Justice Ramsay, delivering
the judgment of the Court of Queen’s Bench of Quebec,
says :

” In saying they are federal officers, the statute must be
understood quoad their federal duties, for the parliament of
Canada could not legislate for their local duties.”

offe4 n oSc e ers 131. Until the Parliament of Canada
otherwise provides, the Governor-General
in Council may from time to time appoint
such officers as the Governor- General in
Council deems necessary or proper for the
effectual execution of this Act.

Treaty obiiga- 132. The Parliament and Govern-
ment of Canada shall have all powers
necessary or proper for performing the
obligations of Canada or of any Province
thereof, as part of the British Empire,
towards foreign countries, arising under
treaties between the Empire and such
foreign countries.

In Ex parte Worms, before Chief Justice Dorion (z), it
was argued that the Imperial Extradition Act of 1870
could not apply to Canada, because of the express power
conveyed by this section. The Chief Justice however held
that the two provisions are in no way inconsistent, and
that, if they were, the Extradition Act, being an Imperial
Act of later date, must govern in all matters relating to the
extradition of fugitive criminals. The overruling legisla-

(/) 2 Steph. Dig. 450; 2 Cart. 317. See ante, p.
(z) 22 L. C. Jur. 109 ; 2 Cart. 315. See also In re Williams, 7 P. R.
(Ont.) 275.

THE B. N. A. ACT SECS. 133, 134. 539*

tion of the Imperial parliament prevents us from utilizing \
the power conferred by this section.

While we may legislate in aid of British treaties affect-
ing us, we have as yet no power to make treaties with for-
eign countries (a).

133. Either the English or the ^ Scf sh
French language may be used by any languages>
person in the debates of the Houses of
the Parliament of Canada and of the
Houses of the Legislature of Quebec ; and
both those languages shall be used in the
respective Eecords and Journals of those
Houses; and either of those languages
may be used by any person or in any
pleading or process in or issuing from any
Court of Canada established under this
Act, and in or from all or any of the
Courts of Quebec.

The Acts of the Parliament of Canada
and of the Legislature of Quebec shall be
printed and published in both those
languages.

Ontario and Quebec.

134- Until the Legislature of Ontario
or of Quebec otherwise provides, the Lieu-
tenant-Governors of Ontario and Quebec
may each appoint under the Great Seal
of the Province the following officers, to
hold office during pleasure, that is to say
the Attorney-General, the Secretary

(a) See Todd, ” Parl. Govt. Brit. Col.,” 192.

540 THE B. N. A. ACT SEC. 135.

and Eegistrar of the Province, the Trea-
surer of the Province, the Commissioner
of Crown Lands, and the Commissioner
of Agriculture and Public Works, and in
the case of Quebec the Solicit or- General;,
and may, by order of the Lieutenant-
Governor in Council, from time to time
prescribe the duties of those officers and
of the several departments over which
they shall preside, or to which they shall
belong, and of the officers and clerks
thereof ; and may also appoint other and
additional officers to hold office during
pleasure, and may from time to time pre-
scribe the duties of those officers, and of
the several departments over which they
shall preside or to which they shall be-
long, and of the officers and clerks
thereof.

” 135- Until the Legislature of Ontario
or Quebec otherwise provides, all rights,
powers, duties, functions, responsibilities,
or authorities at the passing of this Act
vested in or imposed on the Attorney-
General, Solicitor-General, Secretary and
Kegistrar of the Province of Canada,
Minister of Finance, Commissioner of
Crown Lands, Commissioner of Public
Works, and Minister of Agriculture and
Eeceiver-General, by any law, statute or
ordinance of Upper Canada, Lower Can-
ada, or Canada, and not repugnant to

THE B. N. A. ACT SECS. 136, 137. 541

this Act, shall be vested in or imposed on
any officer to be- appointed by the Lieu-
tenant-Governor for the discharge of the
same or any of them; and the Commis-
sioner of Agriculture and Public Works
shall perform the duties and functions of
the office of Minister of Agriculture at the
passing of this Act imposed by the law
of the Province of Canada, as well as
those of the Commissioner of Public
Works.

136- Until altered by the Lieutenant- Great Seal –
Governor in Council, the Great Seals of
Ontario and Quebec respectively shall be
the same, or of the same design, as those
used in the Provinces of Upper Canada
and Lower Canada respectively before
their Union as the Province of Canada.

137. The words “and from thence to
the end of the then next ensuing Session A(
of the Legislature,” or words to the same
effect, used in any temporary Act of the
Province of Canada not expired before
the Union, shall be construed to extend
and apply to the next Session of the
Parliament of Canada, if the subject
matter of the Act is within the powers of
the same, as defined by this Act, or to
the next Sessions of the Legislatures of
Ontario and Quebec respectively, if the
subject matter of the Act is within the

542 THE B. N. A. ACT SEC. 138-140.

powers of the same as defined by this

Act.

–

* 8 138. From and after the Union, the
use of the words “Upper Canada”
instead of ” Ontario,” or ” Lower Can-
ada ” instead of ” Quebec,” in any deed,
writ, process, pleading, document, matter,
or thing, shall not invalidate the same.

139. Any Proclamation under the
uSon to com- Great Seal of the Province of Canada

raence after

union. issued beiore the Union to take effect at
a time which is subsequent to the Union,
whether relating to that Province, or to
Upper Canada, or to Lower Canada, and
the several matters and things therein
proclaimed shall be and continue of like
force and effect as if the Union had not
been made.

p1odaSa* of l4:0. Any Proclamation which is au-
union. fte thorized by any Act of the Legislature of
the Province of Canada to be issued under
the Great Seal of the Province of Canada,
whether relating to that Province, or to
Upper Canada, or to Lower Canada, and
which is now issued before the Union,
may be issued by the Lieutenant- Governor
of Ontario, or of Quebec, as its subject
matter requires, under the Great Seal
thereof; and from and after the issue of
such Proclamation the same and the
several matters and things therein pro-

THE B. N. A. ACT SECS. 141-143. 543

claimed shall be and continue of the lifce
force and effect in Ontario or Quebec as if
the Union had not been made.

141- The Penitentiary of the Pro- Penitentiary..
vince of Canada shall, until the Parlia-
ment of Canada otherwise provides, be

and continue the Penitentiary of Ontario
and Quebec.

142- The division and adjustment of %**$*
the debts, credits, liabilities, properties dt

and assets of Upper Canada and Lower
Canada shall be referred to the arbitra-
ment of three arbitrators, one chosen by
the Government of Ontario, one by the
Government of Quebec, and one by the
Government of Canada ; and the selection
of the arbitrators shall not be made until
the Parliament of Canada and the Legis-
latures of Ontario and Quebec have met ;
and the arbitrator chosen by the Govern-
ment of Canada shall not be a resident
either in Ontario or in Quebec.

(i) See In re Arbitration between Ontario and Quebec (6)*

143- The Governor-General in Coun- ?i v Ta s nof
cil may from time to time order that such

and so many of the records, books, and
documents of the Province of Canada as
he thinks fit .shall be appropriated and
delivered either to Ontario or to Quebec,
and the same shall thenceforth be the

(6) 6L. J. N. S.212; 4 Cart. 712.

544 THE B. N. A. ACT SECS. 144, 145.

property of that Province ; and any copy
thereof or extract therefrom, duly certi-
fied by the officer having charge of . the
original thereof shall be admitted as
evidence.

S^SShSi 144- The Lieutenant-Governor of
)ec ‘ Quebec may from time to time, by Pro-
clamation under the Great Seal of the
Province, to take effect from a day to be
appointed therein, constitute townships
in those parts of the Province of Quebec
in which townships are not then already
constituted, and fix the metes and bounds
thereof.

X. INTEKCOLONIAL RAILWAY.

145- Inasmuch as the Provinces of
Canada, Nova Scotia, and New Bruns-

make railway . …… -. , . .

herein de- wick have iomed in a declaration that

scribed. J

the construction of the Intercolonial Bail-
way is essential to the consolidation of
the Union of British North America, and
to the assent thereto of Nova Scotia and
New Brunswick, and have consequently
agreed that provision should be made for
its immediate construction by the Gov-
ernment of Canada : Therefore, in order
to give effect to that agreement, it shall
be the duty of the Government and Par-
liament of Canada to provide for the com-
mencement within six months after the

THE B. N. A. ACT SEC. 146. 545

Union, of a railway connecting the Eiver
St. Lawrence with City of Halifax in
Nova Scotia, and for the construction
thereof without intermission, and the
completion thereof with all practicable
speed.

XI. ADMISSION OF OTHEK COLONIES (i).

146- It shall be lawful for the Queen,
by and with the advice of Her Majesty’s
Most Honourable Privy Council, on Ad-
dresses from the Houses of Parliament of
Canada, and from the Houses of the
respective Legislatures of the Colonies
or Provinces of Newfoundland, Prince
Edward Island, and British Columbia, to
admit those Colonies or Provinces, or any
of them, into the Union, and on Address
from the Houses of the Parliament in
Canada to admit Rupert’s Land and the
North-western Territory, or either of
them, into the Union, on such terms and
conditions in each case as are in the Ad-
dresses expressed and as the Queen thinks
fit to approve, subject to the provisions
of this Act; and the provisions of any
Order in Council in that behalf shall
have effect as if they had been enacted by
the Parliament of the United Kingdom of
Great Britain and Ireland.

I (i) See Part IV,
CAN. CON. 35

546

THE B. N. A. ACT SEC. 147.

As to repre-
sentation of
Newfound-
land and
Prince Ed-
ward Island
in Senate.

147- I n case of the admission of
Newfoundland and Prince Edward Island,
or either of them, each shall be entitled
to a representation in the Senate of Can-
ada of four members, and (notwithstand-
ing anything in this Act) in case of the
admission of Newfoundland the normal
number of Senators shall be seventy-six
and their maximum number shall be
eighty-two ; but Prince Edward Island
when admitted shall be deemed to be
comprised in the third of the three
divisions into which Canada is, in rela-
tion to the constitution of the Senate,
divided by this Act, and accordingly, after
the admission of Prince Edward Island,
whether Newfoundland is admitted or
not, the representation of Nova Scotia
and New Brunswick in the Senate shall,
as vacancies occur, be reduced from
twelve to ten members respectively, and
the representation of each of those Pro-
vinces shall not be increased at any time
beyond ten, except under the provisions of
this Act for the appointment of three or
six additional Senators under the direc-
tion of the Queen.

PART IV.

SUBSEQUENT GROWTH.

CHAPTER XIII.

THE NORTH-WEST TERRITORIES.

The future extension of the Dominion of Canada, so as
ultimately to embrace the whole of British North America
from ocean to ocean, was anticipated, as appears by sections
146 and 147 of the B. N. A. Act, 1867. We need here draw
attention to the former section only (a), by which provision
was made for the admission of the other British territories,
organized and unorganized. The important point to be
noted is that by virtue of the last clause of this section, the
various orders in council subsequently promulgated effect-
ing the admission to the Union of Rupert’s Land and the
North-western Territory, and of British Columbia and
Prince Edward Island are, in effect, Imperial Acts, and are,
to those new portions of the Dominion, their constitutional
charters, amended, however, in certain particulars by subse-
quent Imperial legislation.

The Dominion government lost no time in setting to ]
work to secure control of the vast territories lying bet ween !
Ontario and British Columbia. At the very first session of
the parliament of Canada, an address (b) was passed by both
Houses representing the expediency, both from a Canadian
and an Imperial point of view, of an early extension of the
Dominion to the shores of the Pacific. This address pointed
out the necessity for a “stable government” and the estab-

(a) See ante, p. 545.

(6) See Dom. Stat. 1872, p. Ixiii., et seq.

550 THE CANADIAN CONSTITUTION.

lishment of institutions analogous to those of the older pro-
vinces, in order to the development of the agricultural,
mineral, and commercial resources of the Great Lone Land,
and prayed that Her Majesty might be pleased (pursuant
to section 146 of the B. N. A. Act) ” to unite Rupert’s Land
and the North- Western Territory with this Dominion, and
to grant to the parliament of Canada authority to legislate
for their future welfare and good government.”

That part of these territories (c) known as Rupert’s Land
had been under the control of the Hudson’s Bay Company
ever since, in 1670, King Charles II. granted his charter to
those “adventurers trading into Hudson’s Bay, “and as lords-
proprietors they had full right of government and adminis-
tration therein subject to the sovereignty of England. The
boundaries of Rupert’s Land were never accurately deter-
mined. Speaking roughly, the ^country known by that
name comprised the territory watered by streams flowing
into Hudson’s Bay; but the company had extended their
operations and assumed jurisdiction (d) over other parts of
the North- Western Territory. We note this distinction
between the North- Western Territory proper and Rupert’s
Land, because, as we shall see, the authority of the Domin-
ion parliament to legislate for these two portions respect-
ively of this great country flowed, in the first instance, from
different Imperial Acts.

The existence of the Hudson Bay Company’s charter
rendered it necessary, in the view of the home government,
that terms should first be settled with that company for a
surrender of “all the rights of government” and other
rights, privileges, etc., in Rupert’s Land enjoyed by the
company under their charter, other than their trading and
commercial privileges. To this end, the Rupert’s Land Act,

(c) See a very interesting article in Western Law Times, Vol. I., June,
1890, which contains in brief an account of the early organization of these
territories under the H. B. Co.

(d) See post.

THE NORTH-WEST TERRITORIES. 551

1868, was passed by the Imperial parliament, empowering
Her Majesty to accept such surrender on terms to be agreed
U p 0n subject to the approval of Her Majesty in council
of the terms and conditions to be proposed by the Domin-
ion parliament for the admission of Rupert’s Land and
embodied in an address.” The 5th section of this Act pro-
vides :

” 5. It shall be competent to Her Majesty by any such order
or orders in council as aforesaid on address from the Houses of
the parliament of Canada to declare that Rupert’s Land shall
from a date to be therein mentioned, be admitted into and be-
come part of the Dominion of Canada ; and thereupon it shall bej
lawful for the parliament of Canada from the date aforesaid to*
make, ordain, and establish within the land and territory so ad-l
mitted as aforesaid all such laws, institutions, and ordinances,
and to constitute such courts and officers as may be necessary
for the peace, order and good government of Her Majesty’s sub-
jects and others therein ; provided that unti) otherwise enacted
by the said parliament of Canada all the powers, authorities and
jurisdiction of the several courts of justice now established in
Rupert’s Land and of the several officers thereof and of all
magistrates and justices now acting within the said limits shall
continue in full force and effect therein.”

This Act, it will be noticed, is confined to Rupert’s Land,
but, under the terms agreed upon by the Hudson Bay Com-
pany and the Canadian delegates, the company surrendered
all their rights of government and other rights, privileges,
etc., etc., not only in Rupert’s Land but also in any other
part of British North America (other than Canada and
British Columbia) and all lands and territories therein, save
some 50,000 acres reserved to them by the agreement. We
need not refer further to the terms of surrender as embodied
in the Imperial order in council finally passed, because those
terms were simply the price paid by the Dominion for the
surrender, and do not in any way touch our subject. The
order in council 23rd June, 1870 which finally admitted
Rupert’s Land and the North- Western Territory to the

552 THE CAN ADI AX CONSTITUTION.

Union provided that from and after the 15th day of July,
1870, those vast areas should form part of Canada, and that
as to the North- Western Territory “the parliament of
\ Canada shall from the day aforesaid have full power and
(authority to legislate for the future welfare and good gov-
4ernment” thereof; but it made no further provision as to
legislation for Rupert’s Land, because that was provided for
by the section of the Rupert’s Land Act, 1868, which we
have already quoted. As to the North- Western Territory
proper, therefore, the legislative power was conferred by
the order in council operating as an Imperial Act by virtue
of section 146 of the B. N. A. Act; while as to Rupert’s Land
the legislative power was conferred by the Rupert’s Land Act,
1868. Nothing, however, turns upon this distinction, for, as
we shall see, after the province of Manitoba was formed,
full legislative power was given to the parliament of Canada
over all territories not included within the boundaries of
any province, so that any possible distinction which might
liave been urged as arising from the difference in the
phraseology of the two earlier enactments is entirely oblit-
erated.

Anticipating the admission of these territories, the f
Dominion parliament in 1869 passed “An Act for the tern-!
porary government of Rupert’s Land and the North –
Western Territory, when united with Canada ” (32-33 Vic.
c. 3), providing for the appointment of a Lieutenant-Gov-
ernor to administer the government of these territories
under instructions from the Governor-General in Council
and that by Order in Council the Lieutenant-Governor
might be empowered (subject to such conditions and restric-
tions as might be imposed by such Order in Council), “to
make provision for the administration of justice therein,
and generally to make, ordain, and establish all such laws,
institutions, and ordinances as may be necessary for the
peace, order, and good government of Her Majesty’s sub-
jects and others therein.” The Lieutenant-Governor was to

THE NORTH-WEST TERRITORIES. 553

be aided by a Council, not exceeding fifteen, nor less than
seven persons, to be appointed by the Governor-General
in Council. The powers of this Council were to be from
time to time as defined by Order in Council, i.e., by the
Dominion government. By the 5th and 6th sections of
this Act it was provided :

11 5. All the laws in force in Rupert’s Land and the North-
Western Territory at the time of their admission to the Union
shall so far as they are consistent with “the British North
America Act, 1867,” with the terms and conditions of such ad-
mission approved of by the Queen under the 146th section
thereof and with this Act remain in force until altered by the
parliament of Canada, or by the Lieutenant-Governor under the
authority of this Act.

“6. All public officers and functionaries holding office in
Rupert’s Land and the North-Western Territory at the time of
their admission into the Union, excepting the public officer or
functionary at the head of the administration of affairs, shall
continue to be public officers and functionaries of the North-
West Territories with the same duties and powers as before,
until otherwise ordered by the Lieutenant-Governor under the
authority of this Act.”

to which clauses we shall shortly have occasion again to
refer.

Again, in 1870 (the admission not having yet taken j
place) the parliament of Canada passed ” An Act to amend*
and continue the Act 32-33 Vic. c. 3 ; and to establish and \
provide for the government of the province of Manitoba ” /
33 Vic. c. 3. The provisions of this Act as to Manitoba
will be dealt with later. As to the remaining portions of
the territories about to become part of the Dominion, the
only amendment of the Act of the previous session was
in the provision that the Lieutenant-Governor of Manitoba!
should also be commissioned as Lieutenant-Governor of \
the North-West Territories as such remaining portions
were now to be called. With this amendment the Act of
1869 was continued to the end of the session of 1871.

554 THE CANADIAN CONSTITUTION.

Confining our attention, then, to the North- West Terri-
tories ; when next the parliament of Canada met, these
territories were part of the Dominion, and much of the
legislation of that session applied to them equally with the
other parts of Canada. From that time to the present the j
Dominion parliament has had the power to legislate for the I
North- West Territories in reference to all matters within”::,
the ken of a colonial legislature (e)\ and although large,
powers of local self-government have been conceded to the I
inhabitants of these Territories they are held at the will of ,
the parliament of Canada. To what extent that parliament ;
will interpose in reference to matters over which legislative
power has been conferred on the North- West assembly,
depends on ” conventions ” not capable of accurate definition.
No doubt before very long a new province or provinces
will be formed out of these territories. The position,
therefore, is so evidently tern porary\ that we feel some diffi-
culty in deciding to what extent or detail we should go in
discussing the present position of the North-West Terri-
tories. What we write will in all probability be in a very
short time of historical interest merely. Present useful-
ness therefore must be our guide, leaving the future to
take care of itself. Because, however, cases may arise in
which the rights of litigants will depend on the law as it
stood at some particular time since 1870, we deem it advis-
able before discussing the Acts which are to-day the
constitutional charters of the North-West Territories, to
state shortly the changes which have been made from time
to time up to the present, in order that the proper sources
of legislation at any given period, and in relation to any
given matter, may be consulted.

On the 15th of July, 1870, these Territories became part \
of Canada. The Acts of the two previous sessions expiring
at the end of the session of 1871, a permanent Act was
passed (34 Vic. c. 16), containing the same provisions as had

(e) See chapter IX., ante.

THE NORTH-WEST TERRITORIES. 555

been made by those Acts. We should note here the B. N. A.
Act, 1871 (34-35 Vic. c. 28), which will be printed in full
when we come to deal with Manitoba. So far as concerns
the North- West Territories, it merely validated the pre-
vious Canadian legislation (32-33 Vic. c. 3, and 33 Vic. c. 3),
and made ftie general provision above noted that “the par-
liament of Canada may from time to time make provision
for the administration, peace, order, and good govern-
ment (/) of any territory not for the time being included
in any territory.”

Period from 15 July, 1870, to 1 November, 1873.

During this period, then, legislative authority over the
North- West Territories was exercised or exerciseable in
the order of efficacy

(a) By the Imperial Parliament :

(b) By the Parliament of Canada :

(c) By the Lieutenant-Governor of Manitoba in relation
only to such matters as were designated by order of the
Governor-General in Council. By 36 Vic. c. 5, the number
of the council of the North -West Territories was increased
to a maximum of 21, instead of 15, the minimum remaining
at 7. Nothing, however, was done toward the government,
by local authority, of the North- West Territories until
December, 1872, when Lieutenant-Governor Morris of Mani-
toba was commissioned to act as Lieutenant-Governor of
these Territories, with a council of eleven members to aid
him in the administration of affairs there. By Order in
Council of date 12th February, 1873, it was ordered:

” 1. That the Lieutenant-Governor of the North-West Terri-
tories, by and with the advice of the said Council shall be, and he is
hereby authorized to make provision for the administration of jus-
tice in the said territories, and generally to make and establish such
ordinances as may be necessary for the peace, order, and good
government of the said North-West Territories and of Her

(f) Sea Kiel v. Regina, 10 App. Gas. 675, fully noted, ante, p. 347.

556 THE CANADIAN CONSTITUTION.

Majesty’s subjects and others therein. Provided, first, that no
such ordinance shall deal with or affect any subjects which are
beyond the jurisdiction of a provincial legislature, under the
4 British North America Act, 1867,’ and provided, second, that
all such ordinances shall be made to come into force only after
they .have been approved by the Governor-General*in Council,
unless in case of urgency, and in that case the urgency shall be
stated on the face of the ordinance.”

with further provision for the transmission of all ordi-
nances to the Governor-General, who should be at liberty
to disallow any of them at any time within two years from
their passage.

Period from 1 November, 1873. to 7 October, 1876.

On the 1st of November, 1873, the Act 36 Vic. c. 34,
came into force. It provided probably to remove doubts
that the local legislation on the various subjects which
by Order in Council to that date had been committed
to the legislative ken of the Lieutenant-Governor and his
Council, should thereafter be passed by the Lieutenant-
Governor, by and with the advice and consent of the
Council. In relation to all matters not so committed,
legislative power was by the Act conferred on the Gov-
ernor-General in Council. The legislative power of both
the Dominion cabinet and the Lieutenant-Governor in
Council each within its respective sphere might be ex-
ercised in the way of extending to the Territories general
Acts of the parliament of Canada with such modification
as might be thought desirable, or in the way of repealing
such general Acts so far as they might apply to the terri-
tories ; with this proviso, however, that no law to be
passed by either of these bodies should (1) be inconsistent
with any Act of the parliament of Canada of express ap-
plication to the Territories ; (2) alter the punishment pro-
vided for any crime or the legal description or character of
the crime itself; (3) impose any tax or any duty of
customs or excise or any penalty exceeding one hundred

THE NORTH-WEST TERRITORIES. 55 7″

dollars ; -or (4) appropriate any monies or property of the
Dominion without the authority of the Dominion parlia-
ment. All local legislation was to be subject to disallow-
ance within two years after its passage.

During this period, therefore, legislative power was
exercisable in the order of its efficacy

(a) By the Imperial Parliament :

(b) By the Parliament of Canada :

(c) By the Governor-General in Council in relation to
all matters not committed to the Lieutenant-Governor and
his Council ; which in reality placed the entire legislative
power (subject to the foregoing) in the hands of the
Dominion government, if it had chosen to exercise it, for;
the powers of the Lieutenant-Governor were themselves
defined by the Order in Council to which we have
referred, and could of course be at any time curtailed :

(d) By the Lieutenant-Governor in Council in relation
to all matters from time to time committed to them for
legislative action.

During this period, however, no further Orders in
Council were passed relative to the powers of the Lieuten-
ant-Governor in Council, nor was the legislative power of
the Governor-General in Council exercised, so that this and
the earlier period are practically one. Dominion legisla-
tion of a general character passed during this period would
prima facie apply to the North- West Territories, and in
addition we may note 36 Vic. c. 35, which made special
provision for the administration of justice therein.

Period from 7lOctober, 1876, to 28 April, 1877.

‘.

In 1875 was passed ” The North- West Territories Act,
1875,” which came into force, however, only on the 7th
of October, 1876. It amended and consolidated previous ,
legislation, and under it the first resident Lieutenant-Gov-
ernor was appointed, and the first legislative session took

558 THE CANADIAN CONSTITUTION.

place in the Territories. The Council was reduced in num-
ber so far as appointed members were concerned to five
persons, with powers as defined in the Act, and with such
further powers not inconsistent therewith as might from
time to time be conferred by Order in Council. As, how-
ever, the section of the Act defining the legislative powers
of the Lieutenant-Go vernor in Council (g), was in force for
only some six months, and as a reference to the ordinances
passed at the session held while it was so in force discloses
that nothing was done in the way of legislation which was
not fully justified by the powers conferred by the Act, we
have not thought it necessary to quote the section. By
the 6th section of this Act all laws and ordinances then in
force in the Territories were to continue until altered or re-
pealed by competent authority. The Governor-General in
Council was empowered (h) to apply any Act, or part of
any Act of the Dominion parliament to the Territories
generally or to any part thereof. The Lieutenant-Governor
was empowered to establish, as population increased, elec-
toral districts, and it was provided that so soon as the
number of elected members of the Council should reach
21, the Council should cease to exist and a Legislative/
Assembly take its place. In the electoral districts the?
Lieutenant-Governor in Council might impose direct tax-
ation and license fees for raising a revenue for the local and
municipal purposes of each district. Power was also given
to establish municipalities in the electoral districts, with
powers of municipal taxation to be prescribed by ordinance
of the Lieutenant-Governor in Council. In reference to
education, it was provided that any legislation upon the
subject should be subject to the right of the minority in
any district, whether Protestant or Roman Catholic, to es-
tablish separate schools, the supporters of which should be
exempt from taxation for the support of the schools estab-

(g) 38 Vic. c. 49, s. 7 ; repealed by 40 Vic. c. 7.
(h) Sec. 8.

THE NORTH-WEST TERRITORIES. 559

lished by the majority. The Act also contained much
legislation upon such general topics as real estate and its
descent, wills, married women, registration of deeds, etc.
Provision was made for the administration of justice
through the medium of local courts presided over by
stipendiary magistrates, who in more serious criminal cases
were to be associated with the chief justice or one of the
judges of the Court of Queen’s Bench of Manitoba. In
capital cases an appeal lay to the full Court of Queen’s
Bench of that province.

Period from 28 April, 1877, to R. 8. C. (1886).

The North-West Territories Act, 1875, was, as we have
intimated, amended in a most important particular by
40 Vic. c. 7, passed about six months after the Act of 1875
came into operation. The section denning the legislative
powers of the Lieutenant-Governor in Council was. repealed
and the following section substituted therefor :

” 7 The Lieutenant-Governor in Council, or the Lieutenant-
Governor by and with the advice and consent of the Legislative
Assembly, as the case may be, shall have such powers to make
ordinances for the Government of the North-West Territories as
the Governor in Council may, from time to time confer upon
him ; Provided always that such powers shall not at any time
be in excess of those conferred by the ninety-second section of
The British North America Act, 1867,’ upon the Legislatures
of the several Provinces of the Dominion :

” 2. Provided that no ordinance to be so made shall, (1) be
inconsistent with or alter or repeal any provision of any Act
of the Parliament of Canada in Schedule B. of this Act, or of
any Act of the parliament of Canada, which may now, or at any
time hereafter, expressly refer to the said Territories or which or
any part of which may be at any time made by the Governor in
Council, applicable to or declared to be in force, in the said Ter-
ritories, or, (2) impose any fine or penalty exceeding one
hundred dollars :

11 3. And provided that a copy of every such ordinance shall
be mailed for transmission to the Secretary of State, within ten

560 THE CANADIAN CONSTITUTION.

days after its passing, and it may be disallowed by the Governor
in Council at any time within two years after its receipt by the
Secretary of State ; Provided, also, that all ordinances so made,
and all Orders in Council disallowing any ordinances so made,
shall be laid before both Houses of Parliament, as soon as con-
veniently may be after the making and enactment thereof
respectively.”

On the llth of May, 1877, an Order in Council was
passed which, after reciting the statutes of 1875 and 1877,
ran thus :

Now, in pursuance of the powers by the said statute
conferred, his Excellency, by and with the advice of the
Privy Council, has been pleased further to order, and it is
hereby ordered, that the Lieutenant-Governor in Council
shall be and he is hereby empowered to make ordinances in
relation to the following subjects, that is to say :

1. The establishment and tenure of territorial offices,
and the appointment and payment of territorial officers ;

2. The establishment, maintenance and management of
prisons in and for the North- West Territories ;

3. The establishment of municipal institutions in the
Territories, in accordance with the provisions of the
“North- West Territories Acts, 1875 and 1877 ” (i);

4. The issue of shop, auctioneer and other licenses, in
order to the raising of a revenue for territorial or munici-
pal purposes (i) ;

5. The solemnization of marriage in the Territories ;

6. The administration of justice, including the consti-
tution, organization and maintenance of territorial courts
of civil jurisdiction ;

7. The imposition of punishment by fine, penalty or
imprisonment for enforcing any territorial ordinance ;

8. Property and civil rights in the Territories, subject
to any legislation by the parliament of Canada upon these
subjects, and

(i) Somewhat amended in 1883 ; see post.

THE NORTH-WEST TERRITORIES. 561

9. Generally on matters of a merely local or private
nature in the Territories.

These Acts were from time to time amended, consoli-
dated and revised, as we shall indicate, but, substantially,
the legislative power of the Lieutenant-Governor in \
Council continued to be governed by the above section and
the Order in Council we have quoted until 1888 indeed,
we may say, until 1891, for, upon the establishment of a
legislative assembly in the former year, its powers of legis-
lation were not increased beyond those exerciseable before
its creation by the Lieutenant-Governor in Council.

In 1880, by 43 Vic. c. 25, previous Acts were amended
and consolidated. The time for disallowing territorial
ordinances was shortened to one year, and the clauses of the
Act of 1875 relating to municipalities eliminated, being
deemed, no doubt, to be covered by the Order in Council
above quoted (j). The participation of Manitoba judges in
the administration of justice in the Territories was
abolished except in the matter of appeals in capital cases.

We may mention also 47 Vic. c. 23, and 48-49 Vic. c. 51,
making amendments of details not material to be further
noted here.

On June 26th, 1883, a now Order in Council was
promulgated defining the powers of the Lieutenant-Gov-
ernor, whether acting in Council or by and with the ad-
vice and consent of the legislative assembly (&) ; the only
amendment, however, of the Order in Council of 1877
above quoted being in items 3 and 4, which were made to
read as follows :

” 3. Municipal Institutions in the Territories, subject to any
legislation by the Parliament of Canada heretofore or hereafter
enacted :

” 4. The issue of shop, auctioneer, and other licenses, except

(j) See 45 Vic. c. 28, and 47 Vic. c. 23, s. 10.
{k) No assembly was constituted until 1888 ; see post.
CAN. CON. 36

562 THE CANADIAN CONSTITUTION.

licenses for the sale of intoxicating liquors, in order to the
raising of a revenue for territorial or municipal purposes.”

In 1886, important legislation was enacted (49 Vic. c. 25),
but as it was carried at once into the Revised Statutes of
that year we need not stay to consider its provisions (I).

At the present time the position of these territories is
denned by “The North- West Territories Act” (R. S. C-
! c. 50), and amendments thereto as follows :

A. D. 1886. A n Act respecting the North-West Ter-

ritories.

TTER Majesty, by and with the advice and
-I*- consent of the Senate and House of Com-
mons of Canada enacts as follows :

SHORT TITLE.

short title. i. This Act may be cited as ” The North-

West Territories Act!’

INTERPRETATION.

2. In this Act, unless the context otherwise
requires,
interpretation f a ) The expression ” Territories ” means the

” Territories.”

North- West Territories, as denned in this Act;

Governor*” 1 *” ^^ e ex P ress i n ” The Lieutenant-Gover-
nor” means the Lieutenant-Governor of the
North- West Territories ;

^Lieutenant- / c \ The expression ” Lieutenant-Governor in

Governor in ^ ‘ *

Council ” means the Lieutenant-Governor of the
Territories in Council, or the Lieutenant-Gover-
nor by and with the advice and consent of the
Legislative Assembly of the Territories, as the
case may be;

(I) It was proclaimed 18th February, 1887 ; the K. S. O. took effect
1st March, 1887.

THE NORTH-WEST TERRITORIES. 563

(d) The expression ” Supreme Court ” means coS r ” me
the Supreme Court of the North- West Terri-
tories.

[(e) and (/) define “intoxicating liquor”
and ” intoxicant.” It is not thought necessary
to print the sections dealing with that subject.
Only those parts of the Act which may be rea-
sonably considered of constitutional impor-
tance are here inserted.]

GOVERNMENT AND LEGISLATION.

3. The Territories formerly known as ” Ru- Territories

defined.

pert’s Land ” and the North-West Territory
shall, with the exception of such portions thereof
as form the Province of Manitoba and the Dis-
trict of Keewatin (m), continue to be called and
known as the North- West Territories.

4. There shall be for the Territories, an offi- Lieutenant-

Governor.

cer called the Lieutenant-Governor, appointed by
the Governor in Council, by instrument under
the Great Seal of Canada, who shall hold office
during pleasure :

2. The Lieutenant-Governor shall administer KIS powers
the Government, under instructions, from time to
time, given him by the Governor in Council, or
by the Secretary of State of Canada.

5. The Governor in Council may, from time Administrator
to time, appoint an Administrator to execute the

office and functions of the Lieutenant-Governor
during his absence, illness or other inability.

6. Every Lieutenant-Governor or Adminis- gjf^ to be
trator so appointed shall, before assuming the

duties of his office, take and subscribe, before the
Governor-General, or before some person duly

(m) Keewatin is in a still more embryonic state, and it is not thought
necessary to deal with it here. See K. S. C. c. 53.

564

THE CANADIAN CONSTITUTION.

Legislative
Assembly.

Electoral
districts,

Duration of
the Assembly,

Limit of time
for session.

Proceedings
on bills.

authorized to administer such oaths, an oath of
allegiance and an oath of office similar to those
required to be taken by a Lieutenant-Governor
under ” The British North America Act, 1867.”
[Sections 7 and 8 were repealed by 51 Vic.
c. 19, s. 1, and provision made for a Legislative
Assembly (section 2). This latter section was
itself repealed by 54-55 Vic. c. 22, the provision
now standing :

2. There shall be a Legislative Assembly for.
the Territories, which shall be composed of
twenty-six members elected to represent the
electoral districts set forth in the schedule (n) to
this Act.

2. The Assembly shall have power to alter
the boundaries of the electoral districts from
time to time. 54-55 Vic. c. 22, s. 2.

55. Every Legislative Assembly shall con-
tinue for three years from the date of the
return of the writs for choosing the same ; but
the Lieutenant-Governor may, at any time, dis-
solve the Assembly and cause a new one to be
chosen. 54-55 Vic. c. 22, s. 3.

4. There shall be a session of the Legislative
Assembly convened by the Lieutenant-Governor
at least once in every year, so that twelve
months shall not intervene between the last
sitting of the Assembly in one session and its
first sitting in another session; and such Assem-
bly shall sit separately from the Lieutenant-
Governor, and shall present Bills passed by it to
the Lieutenant-Governor for his assent, who may
approve or reserve the same for the assent of
the Governor- General. 54-55 Vic. c. 22, s. 4.]

(n) Not printed.

THE NORTH-WEST TERRITORIES. 565

[ With respect to elections provision is made
by 51 Vic. c. 19, amended to some extent by
54-55 Vic. c. 22. We indicate after each section
by what Act enacted :

5. Until the Legislature of the North-West l^f^S.
Territories otherwise provides, as it may do, the

la\v in force therein at the time of the passing of
this Act relating to the election of members of
the Council of the North-West Territories shall,
subject to the provisions of this Act, apply to
the election of members of the Legislative As-
sembly. 51 Vic. c. 19, s. 5.

6. Whenever it is necessary to call a new issue of writs

T . , . A , , , for elections.

Legislative Assembly, or whenever a vacancy
occurs by reason of death, resignation, or other-
wise, of an elected member, the Lieutenant-Gov-
ernor shall cause a writ or writs of election, as
the case may be, to be issued by the Clerk of the
Legislative Assembly, in such form and ad-
dressed to such returning officer or officers as he
approves of until otherwise provided by the
Assembly :

2. Until the Legislative Assembly otherwise Euies for
provides, the Lieutenant-Governor shall, by pro- e
clamation, prescribe and declare, for use at all or
any elections, rules for

(a) The mode of providing voters’ lists;

(b) The oaths to be taken by voters ;

(c) The appointment, powers and duties of
returning and deputy returning officers, election
and poll clerks and their oaths of office ;

(d) The proceedings to be observed at elec-
tions ;

(e) The periods during which such elections
may be continued ;

566 THE CANADIAN CONSTITUTION.

(f) Such other provisions with respect to
such elections as he thinks fit. 54-55 Vic. c. 22,
s. 5.

who may y . The persons qualified to vote at an elec-

tion for the Legislative Assembly shall be the
male British subjects by birth or naturalization
(other than unenfranchised Indians), who have
attained the full*age of twenty-one years, who
have resided in the North- West Territories for
at least the twelve months, and in the electoral
district for at least the three months respec-
tively, immediately preceding the time of voting.
51 Vic. c. 19, s. 7.

who eligible 8. Any British subject by birth or natural –

for election. J ‘ f J

ization shall be eligible for nomination and
election.

Deposit at 2. N o nomination at any election shall be

nomination. *

valid and acted upon unless at or before the
time of nomination a sum of one hundred dollars
is deposited in the hands of the returning
officer ; and the receipt of the returning officer
shall in every case be sufficient evidence of the
payment herein mentioned :

HOW applied. 3. The sum so deposited shall be returned to
the person by whom the deposit was made in
the event of the candidate, by or on whose
behalf it was so deposited, being elected, or of
his obtaining a number of votes at least equal to
one-half the number of votes polled in favor of
the candidate elected, otherwise it shall belong to
Her Majesty for the public uses of the Terri-
tories ; and the sum so paid and not returned as
herein provided shall be applied by the return-
ing officer towards the payment of the election
expenses, and an account thereof shall be ren-

THE NORTH-WEST TERRITORIES. 567

dered by him to the Lieu tenant- Governor.
51 Vic. c. 19, s. 8.

O. Elected members of the Legislative As- ^ n * y be
sembly shall take and subscribe before the membeif8 –
Lieutenant-Governor or before such person as is
designated by the Governor in Council, the fol-
lowing oath of allegiance :

” I, A. B., do swear that I will be faithful and
bear true allegiance to Her Majesty, her heirs
and successors.” 51 Vic. c. 19, s. 9.

10. A majority of the members of the Legis- Q UO
lative Assembly, including the members ap-
pointed by the Governor in Council, shall form

a quorum for the transaction of business. 51
Vic. c. 19, s. 10.

1 1 . The Legislative Assembly, on its first Election of
assembling after a general election, shall proceed

with all practicable speed to elect one of its
elected members to be Speaker:

2. In case of a vacancy happening in the vacancy m
office of Speaker by death, resignation or other- speaker,
wise, the Legislative Assembly shall proceed

with all practicable speed to elect another of its
elected members to be Speaker :

3. The Speaker shall preside at all meetings speaker to
of the Legislative Assembly :

4. Until the Legislative Assembly otherwise case of at>

. T e ,, , ,, sence pro-

provides, in case of the absence for any reason videa for.
of the Speaker from the chair of the Assembly
for forty-eight consecutive hours, the Assembly
may elect another of its members to act as
Speaker, and the member so elected shall, during
the continuance of such absence of the Speaker,
have and execute all the powers, privileges and
duties of Speaker. 51 Vic. c. 19, s. 11.

568

THE CANADIAN CONSTITUTION.

Advisory
Council to be
appointed.

dicid r e! tyt J2 Questions arising in the Legislative As-

sembly shall be decided by a majority of voices
other than that of the Speaker, and when the
voices are equal, but not otherwise, the Speaker
shall have a vote. 51 Vic. c. 19, s. 12.

13. The Lieutenant-Governor shall select
from among the elected members of the Legisla-
tive Assembly four persons to act as an advisory
council on matters of finance, who shall severally
hold office during pleasure; and the Lieutenant-
Governor shall preside at all sittings of such
advisory council and have a right to vote as a
member thereof, and shall also have a casting
vote in case of a tie. 51 Vic. c. 19, s. 13.

?o b n e e L V s? tes I4 – The Legislative Assembly shall not adopt
recommended or p agg an y yo ^ reso i u ti O n, address, or bill for
the appropriation of any part of the public
revenue, or of any tax or impost to any purpose
that has not been first recommended to the
Assembly by message of the Lieutenant-Gover-
nor in the session in which such vote, resolution^
address or bill is proposed. 51 Vic. c. 19, s. 14.

| al ea?er f ~*^” ^ e Speaker ^ ^ ne Legislative Assembly

shall receive a salary of live hundred dollars per
annum, payable out of the Consolidated Revenue
Fund of Canada. 51 Vic. c. 19, s. 15.

C embi f his * **” ^e G overnor ~i n ‘Council may appoint a
duties and clerk of the Legislative Assembly, who shall act

O *J *

as, and perform the duties of secretary to the
Lieutenant-Governor, and who shall take before
the Lieutenant-Governor the oath of allegiance*
and such oath of office as the Governor-in-Coun-
cil prescribes, and who shall receive a salary of
two thousand dollars per annum, and such salary
shall be paid out of the Consolidated Revenue
Fund of Canada. 51 Vic. c. 19, s. 16.]

THE NORTH-WEST TERRITORIES. 569

9. The seat of Government of the Territories
shall be fixed, and may, from time to time, be
changed by the Governor in Council.

[Section 10 ‘made provision for the Lieut.-
Governor presiding over and voting at meetings
of the Council. See now 51 Vic. c. 19, s. 13 ;
and 54-55 Vic. c. 22, s. 4, supra.]

11. Subject to the provisions of this Act, the
laws of England relating to civil and criminal
matters, as the same existed on the fifteenth day

of July, in the year of our Lord one thousand exceptions. .
eight hundred and seventy, shall be in force in
the Territories, in so far as the same are appli-
cable to the Territories, and in so far as the same
have not been, or are not hereafter repealed,
altered, varied, modified, or affected by any Act
of the Parliament of the United Kingdom appli-
cable to the Territories, or of the Parliament of
Canada, or by any ordinance of the Lieutenant-
Governor in Council.

12. All laws and ordinances in force in the ^fnu^a ) 5
Territories, and not repealed by or inconsistent

with this Act, shall remain in force until it is
otherwise ordered by the Parliament of Canada,
by the Governor in Council, or by the Lieuten-
ant-Governor in Council, under the authority of
this Act.

[Section 13, defining the pouters of the Lieut.-
Governor in Council was repealed by 54-55 Vic.

(o) For convenience we have collected the authorities upon the mat-
ters referred to in sections 11 and 12, and they will be found, post. In the
Revised Statutes of Canada are a number of Acts specially dealing with
different subjects of legislation as to the North-West Territories, e. g.,
” The N. W. T. Representation Act,” ” The Territories Real Property
Act,” ” The Homestead Exemption Act,” “The Dominion Lands Act,”
etc., etc.

570 THE CANADIAN CONSTITUTION.

c. 22, s. 6, which substitutes therefor the follow-
ing :

IS The Legislative Assembly shall, subject
to the provisions of this Act, or of any other Act
of the Parliament of Canada, at any time in force
in the Territories, have power to make ordi-|
nances for the government of the Territories in
relation to the classes of subjects next herein-
after mentioned, that is to say :

(1) The mode of providing voters’ lists, the
oaths to be taken by voters, the appointment,
powers and duties of returning officers and
deputy returning officers, election and poll clerks,
and their oaths of office, the proceedings to be
observed at elections, the periods during which
such elections may be continued, and such other
provisions with respect to such elections as may
be thought fit ;

(2) Direct taxation within the Territories in
order to raise a revenue for territorial or muni-
cipal or local purposes ;

(3) The establishment and tenure of terri-
torial offices, and the appointment and payment
of territorial officers out of territorial revenues ;

(4) The establishment, maintenance, and
management of prisons in and for the Terri-
tories, the expense thereof being payable out
of territorial revenues ;

(5) Municipal institutions in the Territories ;

(6) Shop, saloon, tavern, auctioneer and
other licenses, in order to raise a revenue for
territorial or municipal purposes ;

(7) The incorporation of companies with ter-
ritorial objects, with the following exceptions:

THE NORTH-WEST TERRITORIES. 571

(a) Such companies as cannot be incorpor-
ated by a provincial legislature ;

(b) Railway, steamboat, canal, transportation,
telegraph and irrigation companies ;

(c) Insurance companies ;

(8) The solemnization of marriage in the
Territories ;

(9) Property and civil rights in the Terri-
tories ;

(10) The administration of justice in the
Territories, including the constitution, organi-
zation, and maintenance of territorial courts of
civil jurisdiction, including procedure therein;
but not including the power of appointing any
j udicial officers ;

(11) The imposition of punishment by fine,
penalty, or imprisonment, for enforcing any ter-
ritorial ordinances ;

(12) The expenditure of territorial funds and
such portion of any moneys appropriated by
Parliament for the Territories as the Lieutenant-
Go vernor is authorized to expend by and with
the advice of the Legislative Assembly or of any
Committee thereof ;

(13) Generally, all matters of a merely local
or private nature in the Territories :

2. Nothing in this section contained gives, or Limitation,
shall be construed to give to the Legislative
Assembly any greater powers with respect to
the subjects therein mentioned than are given to
Provincial Legislatures under the provisions of
section 92 of ” The British North America Act,
1867,” with respect to the similar objects therein
mentioned.]

572

THE CANADIAN CONSTITUTION.

Ordinances
respecting
education.
Majority
schools, (p)

Minority
schools.

Declaratory
as to ordinan-

Ordinances
respecting
administra-
tion of justice

14. The Lieutenant-Governor in Council
shall pass all necessary ordinances in respect to
education ; but it shall therein always be pro-
vided, that a majority of the ratepayers of any
district or portion of the Territories, or of any
less portion or subdivision thereof, by whatever
name the same is known, may establish such
schools therein as they think fit, and make the
necessary assessment and collection of rates
therefor ; and also that the minority of the rate-
payers therein, whether Protestant or Roman
Catholic, may establish separate schools therein
and in such case, the ratepayers establishing
such Protestant or Roman Catholic separate
schools shall be liable only to assessments of such
rates as they impose upon themselves in respect
thereof :

2. The power to pass ordinances, conferred
upon the Lieutenaiit-Governor by this section is
hereby declared to have been vested in him from
the seventh day of May, one thousand eight
hundred and eighty.

15. The Lieutenant-Governor in Council
may, from time to time, but subject to the pro-
visions of this Act, make ordinances in relation
to the administration of justice in the Territories,
and to the constitution, maintenance and organ-
ization of the Supreme Court, including proce-
dure therein in civil matters, in as full and ample
a manner as the Legislature of any Province of

(p) See ante, p. 489 and p. 510.

(q) See, however, 54-55 Vic. c. 22, s. 6, enacting a new section 13 to the
main Act and giving to the Legislative Assembly the powers defined
as above. By some oversight, probably, this section was not repealed,
and it would appear that the Lieutenant-Governor in Council has con-
current power, in this connection, with the Assembly.

THE NORTH-WEST TERRITORIES. 573

Canada could, under the fourteenth paragraph of
the ninety-second section of ” The British North
America Act, 1867,” or otherwise, make laws in
relation to the administration of justice in the
Province, and to the constitution, maintenance
and organization of a provincial court, both of
civil and criminal jurisdiction, including proce-
dure in civil matters in such court.

16. The Lieutenant-Go vernor in Council ordinances

respecting

may, from time to time, make ordinances in juries,
respect to the mode of calling juries, other than
grand juries, in criminal as well as civil cases,
and when and by whom and the manner in
which they may be summoned or taken, and in
respect to all matters relating to the same.

IT. An authentic copy of every ordinance
shall be transmitted by mail to the Secretary of
State within thirty days after its passing ; and
if the Governor in Council, at any time within
one year after its receipt by the Secretary of
State, thinks fit to disallow the ordinance, such
disallowance, when signified by the Secretary of
State to the Lieutenant-Governor, shall annul
the* ordinance from and after the date of such
signification ; and all ordinances so made, and all
Orders in Council disallowing any ordinances so
made, shall be laid before both Houses of Parlia-
ment as soon as conveniently may be after
the making and enactment thereof respectively.

[Sections 18 to 25, both inclusive, were re-
pealed by 51 Vic. c. 19. Sections 26 to 40, both
inclusive, relate to “wills” and “married wo-
men” and by 5^-55 Vic. c. 22, the Assembly of
the Territories is empowered to repeal them and
make other provision.]

574

THE CANADIAN CONSTITUTION.

ADMINISTRATION OF JUSTICE.

Supreme 41. The Supreme Court of record of original

court continu- m r m

ed – and appellate jurisdiction now existing under the

name of “The Supreme Court of the North- West
Territories” is hereby continued under the name
aforesaid.

constitution 43. The Supreme Court shall consist of five

of court. L

puisne judges, who shall be appointed by the
Governor in Council by letters patent under the
Great Seal.

who may

be appointed

judge.

to be held.

Residence.

office re f

?aken to be

43. Any person may be appointed a iudg-e

.- , , i i j P

or the court who is or nas been a judge 01 a
Superior Court of any Province of Canada, a
stipendiary magistrate of the Territories, or a
barrister or advocate of at least ten years’ stand-
ing at the bar of any such Province, or of the
Territories.

f the COurt sha11 hold

o ther office of emolument under the Government
of Canada, or of any Provmce thereof, or of the
Territories.

45. Each judge of the court shall reside at
such place in the Territories as the Governor in
Council, in the commission to such judge, or by
Order in Council, directs.

judges of the court shall hold office
during good behavior, but shall be removable by
the Governor-General, on address of the Senate
and House of Commons of Canada.

^ ‘ Every judge shall, previously to enter-
ing upon the duties of his office as such judge,
take an oath in the form following:

THE NORTH- WEST TERRITORIES. 575

” I, , do solemnly and sincerely Form of oath –

” promise and swear that I will duly and faith-
” fully, and to the best of my skill and know-
” ledge, execute the powers and trusts reposed in
” me as one of the judges of the Supreme Court
” of the North- West Territories. So help me
” God.”

2. Such oaths shall be administered by the
Lieutenant-Governor or by a judge of the court.

48. The court shall, within the Territories,
and for the administration of the laws for the
time being in force within the Territories, pos- mal –
sess all such powers and authorities as by the
law of England are incident to a superior
court of civil and criminal jurisdiction ; and shall
have, use and exercise all the rights, incidents
and privileges of a court of record and all other
rights, incidents and privileges, as fully to all
intents and purposes as the same were on the
fifteenth day of July, one thousand eight hun-
dred and seventy, used, exercised and enjoyed
by any of Her Majesty’s superior courts of com-
mon law, or by the Court of Chancery, or by the
Court of Probate in England, and shall hold
pleas in all and all manner of actions, causes and
suits as well criminal as civil, real, personal
and mixed, and shall proceed in such actions,
causes and suits by such process and course as
are provided by law, and as tend with justice
and despatch to determine the same, and shall
hear and determine all issues of law, and shall
also hear and (with or without a jury as pro-
vided by law) determine all issues of fact joined
in any such action, cause or suit, and give judg-
ment thereon and award execution thereof in as
full and as ample a manner as might at the said

576

THE CANADIAN CONSTITUTION.

Sittings in
bane.

Quorum.

Jurisdiction
in bane.

date be done in Her Majesty’s Court of Queen’s
Bench, Common Bench, or in matters which
regard the Queen’s revenue (including the con-
demnation of contraband or smuggled goods) by
the Court of Exchequer, or by the Court of
Chancery or the Court of Probate in England.

49. The court shall sit in bane at the seat of
government of the Territories at such time as the
Lieutenant-Governor in Council appoints : the
senior judge present shall preside and any three
judges of the court shall constitute a quorum.

50. The court sitting in bane shall hear and
determine all applications for new trials, all
questions or issues of law, all questions or points
in civil or criminal cases reserved for the opinion
of the court, all appeals or motions in the nature
of appeals, all petitions and all other motions,
matters or things whatsoever which are lawfully
brought before it.

5 1 . The Governor in Council may, at any
time, by proclamation divide the Territories into
judicial districts, and give to each such district
an appropriate name, and in like manner, from
time to time, alter the limits and extent of such
districts.

[Section 52 was repealed by 54-55 Vic. c. 2%,
s. 7, and the following substituted :

Territorial 52. Every Judge of the Court shall have

jurisdiction of

Judges. jurisdiction throughout the Territories, but shall

usually exercise the same within the judicial
district to which he is assigned by the Governor
in Council, and in all causes, matters, and pro-
ceedings, other than such as are usually cogniz-
able by a court sitting in bane, and not by a
single judge of the Said court, shall have and

Appeals.

Judicial

districts.

THE NORTH-WEST TERRITORIES. 577

exercise all the powers, authorities and jurisdic-
tion of the court :

2. Subject to any statute prohibiting or re- Wri . ts <> f .

J r c certioran.

stricting proceedings by way of certiorari, a
single judge shall, in addition to his other
powers, have all the powers of the court as to
proceedings by way of certiorari over the pro-
ceedings, orders, convictions, and adjudications
had, taken, and made by justices of the peace*
and in addition thereto shall have the power of
revising, amending, modifying, or otherwise
dealing with the same ; and writs of certiorari
may, upon the order of a judge, be issued by the
clerk of the court mentioned in such order
returnable as therein directed. 54-55 Vic. c. 22,

. r.]

53. Whenever, under any Act in force in the Powers of

^ single judge.

Territories, any power or authority is to be exer-
cised, or anything is to be done by a judge of a
court, such power or authority shall, in the Ter-
ritories, be exercised or such thing shall be done
by a judge of the Supreme Court, unless any
other provision is made in that behalf by such
Act.

54. The judges of the Supreme Court shall Judges to

r replace

liave all the powers, authority and jurisdiction

vested in the stipendiary magistrates of the Ter- magistrates.

ritories on the second day of June, one thousand

eight hundred and eighty-six; and wherever in

any Act of the Parliament of Canada relating to

the Territories the words ” stipendiary magis-

trate ” or ” stipendiary magistrates ” are used, the

same shall mean a judge or the judges of the

Supreme Court, as the case may be.

55. Sittings of the Supreme Court, which
be presided over by a judge of the court,
CAN. CON. 37

578 THE CANADIAN CONSTITUTION.

shall be held in each judicial district at such
times and places as the Lieutenant-Governor of
the Territories appoints.

[Sections 56 to 62, both inclusive, relate to
sheriffs and clerks, their duties, etc.]

Disposal of O3. The Lieutenant-Governor inav, subiect

North-West J ‘ J

Mounted to any orders made in that behalf, from time to

Police Force. J

time, by the Governor in Council, issue orders to
the North- West Mounted Police force, in aid of
the administration of civil and criminal justice,
and for the general peace, order and good govern-
ment of the Territories.

peace ces fthe ^ The Lieutenant-Governor may appoint
justices of the peace for the Territories, who shall
have jurisdiction as such throughout the same.

[Sections 65 to 81, both inclusive, relate to
the administration of criminal justice ; 82 to
87 to coroners and inquests ; 88 to 91 to the ad-
ministration of civil justice ; 92 to 100 to in-
toxicants, and 101 to 108 contain miscellaneous
provisions which we need not further notice.
Amendments have been made to some of the sec-
tions by 51 Vic. c. 19, and 54-55 Vic. c. 22. By
section 19 of the latter, power to repeal and
alter the law as to intoxicants is given to the
Assembly so far as relates to territory covered
% elect or

GENERAL PROVISIONS.

when is there 1OO. Whenever in any Act of the Parlia-

officers b as?are men ^ ^ Canada in force in the Territories, any

” om order and good government of any

territory not for the time being included in any

Province.

Confirmation 5>. The following Acts passed by the said

of Acts of Par- \ . . /

Hament of Parliament or Canada, and intituled respec-

Canada, 32 &

,

‘ca Vi 3 t 33 vlct’ ^ ve v : ” ^ n ^ c ^ * or ^ ne temporary government

can), ‘cap. 3. o f Rupert’s Land and the North- Western Terri-

tory when united with Canada,” and “An Act to

MANITOBA. 587

amend and continue the Act thirty-two and
thirty-three Victoria,^ chapter three, and to
establish and provide for the ‘government of
the Province of Manitoba/” shall be and be
deemed to have been valid and effectual for all
purposes whatsoever from the date at which
they respectively received the assent, in the
Queen’s name, of the Governor-General of the
said Dominion of Canada.

O. Except as provided by the third section po^’jfpav-
of this Act, it shall not be competent for the cEa^tS’ ie g –
Parliament of Canada to alter the provisions established 1
of the last mentioned Act of the said Parlia- province
ment, in so far as it relates to the Province of
Manitoba, or of any other Act hereafter estab-
lishing new Provinces in the said Dominion,
subject always to the right of the Legislature of
the Province of Manitoba to alter from time to
time the provisions of any law respecting the
qualification of electors and members of the
Legislative Assembly, and to make laws respect-
ing elections in the said Province.

Under the 3rd section of this Act, the limits of Mani-
toba were in 1877 (a), and again in 1881 (6), altered and
its territory considerably increased. The 6th section is*
the all-important one, not merely to Manitoba but to any
province to be hereafter created. It will tend to retard
the creation of new provinces until the Territories are so
well settled and organized as to be entitled to the same
powers of self-government as are now enjoyed by the older
provinces. It would be unfortunate to give the name of a
province to any division of the Territories, unless at the
same time full provincial autonomy were given. In fact it

(a) See 40 Vic. c. 6 (Dom.).
(6) See 44 Vic. c. 14 (Dom.).

588 THE CANADIAN CONSTITUTION.

may be doubted if, under the above Act, a province could
be created with less power than the provinces named in
the B. N. A. Act. However this may be, any Act of the
parliament of Canada creative of a new province becomes
at once, in effect, an Imperial Act at all events an Act
which can be altered by nothing short of Imperial legisla-
tion. Such is the position of Manitoba to-day. Her
charter is :

33 Vic., CAP. 3.

An Act to amend and continue the Act 32 and 33 Victoria,
chapter 3 ; and to establish and provide for the Govern-
ment of the Province of Manitoba.

[Assented to 12th May, 1870.}

Preamble. TT 7 HERE AS it is probable that Her Majesty
‘ The Queen may, pursuant to the British
North America Act, 1867, be pleased to admit
Rupert’s Land and the North- Western Territory
into the Union or Dominion of Canada, before
the next Session of the Parliament of Canada :

And Whereas it is expedient to prepare for
the transfer of the said Territories to the Gov-
ernment of Canada at the time appointed by the
Queen for such admission :

And Whereas it is expedient also to provide
for the organization of part of the said Terri-
tories as a Province, and for the establishment
of a Government therefor, and to make provision
for the Civil Government of the remaining part
of the said Territories not included within the
limits of the Province :

Therefore Her Majesty, by and with the
advice and consent of the Senate and House of
Commons of Canada, enacts as follows :

MANITOBA. 589

1. On, from and after the day upon wMck

the Queen by and with the advice and consent territory
of Her Majesty’s Most Honorable Privy Conncil,
under the authority of the 146th section of the
British North America Act, 1867, shall, by
Order in Council in that behalf (c), admit Ru-
pert’s Land and the North- Western Territory
into the Union or Dominion of Canada, there
shall be formed out of the same a Province,
which shall be one of the Provinces of the Do-
minion of Canada, and which shall be called the
Province of Manitoba, and be bounded as
follows :

[The boundaries as here defined were after-
wards altered, and the area of the Province en-
larged. See ante, p. 587 ; also R. 8. C. c. Jfll\

2. On, from and after the said day on which certain pro-
the Order of the Queen in Council shall take B. N^ Act,
effect as aforesaid, the provisions of the British to Manitoba 7
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, or only to affect one or
more, but not the whole of the Provinces now
composing the Dominion, and except so far as the
same may be varied by this Act,’ be applicable
to the Province of Manitoba, in the same way,
and to the like extent as they apply to the sev-
eral Provinces of Canada, and as if the Province
of Manitoba had been one of the Provinces
originally united by the said Act.

3. The said Province shall be represented in ^-^f^th 1 ?”
the Senate of Canada by two Members, until Senate – (<*) (c) The Order in Council bears date 23 June, 1870, and provides for admission on 15 July, 1870. (d) Now 3. See R. S. C. c. 12 ; also ante, p. 268, et seq. 590 THE CANADIAN CONSTITUTION. it shall have, according to decennial census, a, population of fifty thousand souls, and from thenceforth it shall be represented therein by three Members, until it shall have, according to decennial census, a population of seventy-five thousand souls, and from thenceforth it shall be represented therein by four Members. 4 – The sa ^ P rovince sna ll be represented, in the first instance, in the House of Commons of Canada, by four Members, and for that purpose shall be divided by proclamation of the Gover- nor-General, into four Electoral Districts, each of which shall be represented by one Member : Provided that on the completion of the census in the year 1881, and of each decennial census afterwards, the representation of the said Prov- ince shall be re-adjusted according to the pro- visions of the fifty-first section of the British North Amercia Act, 1867. Qualification |>. Until the Parliament of Canada otherwise

of voters and

members (/). provides, the qualification of voters at Elections
of Members of the House of Commons shall be
the same as for the Legislative Assembly here-
inafter mentioned : And no person shall be
qualified to be elected, or to sit and vote as a
Member for any Electoral District, unless he is
a duly qualified voter within the said Province.

Lieutenant- ft F or the said Province there shall be an

Governor (g).

officer styled the Lieuteiiant-Govemor, appointed
by the Governor-General in Council by instru-
ment under the Great Seal of Canada.

(e) Now 7. See 55-56 Vic. c. 11 (Dom.) ; also ante, p. 282, et seq.

(f) See ante, p. 285, et seq. The restriction imposed by the latter part
of the section has been removed.

(g) See ante, p. 300, et seq.

MANITOBA. 591

7. The Executive Council of the Province
shall be composed of such persons, and under
such designations, as the Lieutenant-Governor
shall, from time to time, think fit ; and, in the
first instance, of not more than five persons.

. Unless and until the Executive Govern-
ment of the Province otherwise directs, the seat ment (l) ‘
of Government of the same shall be at Fort
Garry, or within one mile thereof.

9. There shall be a Legislature for the Prov- Legislature.
ince, consisting of the Lieutenant-Governor,
and of two Houses ( j), styled respectively, the
Legislative Council of Manitoba, and the Legis-
lative Assembly of Manitoba.

[Sections 10-13 relate to the defunct Legisla-
tive Council.’]

14. The Legislative Assembly shall be com- Legislative

Assembly.

posed of twenty-four Members, to be elected to
represent the Electoral Divisions into which the
said Province may be divided by the Lieutenant-
Governor, as hereinafter mentioned.

15. The presence of a majority of the Mem- Quorum,
bers of the Legislative Assembly shall be neces-
sary to constitute a meeting of the House for

the exercise of its powers ; and for that purpose
the Speaker shall be reckoned as a Member.

(/i) The provisions of this and the following sections, relating to the
provincial constitution, have all been the subject of provincial legislation-
See R. S. Man. (1888) ; and see also notes to B. N. A. Act, 1867, s. 92, s-s. 1,
ante, p. 420, et seq.

(0 Now ” Winnipeg.”

( j) Now only one. The Legislative Council was abolished by 39 Vic.
c. 29 (Man.) ; see ante, p. 326.

592

THE CANADIAN CONSTITUTION.

Duration of
Legislative
Assembly (k).

[Sections 16 to 18 relate to first elections,
electoral districts, and qualifications of voters.
They are long since effete.]

19. Every Legislative Assembly shall con-
tinue for four years from the date of the return
of the writs for returning the same (subject
nevertheless to being sooner dissolved by the
Lieutenant-Go vernor), and no longer; and the
first Session thereof shall be called at such time
as the Lieutenant-Governor shall appoint.

20. There shall be a Session of the Legisla-
ture once at least in every year, so that twelve
months shall not intervene between the last
sitting of the Legislature in one Session and its
first sitting in the next Session.

21. The following provisions of the British
North America Act, 1867, respecting the House
of Commons of Canada, shall extend and apply
to the Legislative Assembly, that is to say :
Provisions relating to the election of a Speaker,
originally, and on vacancies, the duties of the
Speaker, the absence of the Speaker and the
mode of voting, as if those provisions were here
re-enacted and made applicable in terms to the
Legislative Assembly.

22. In and for the Province, the said Legis-
lature may exclusively make Laws in relation
to Education, subject and according to the fol-
lowing provisions :

(1) Nothing in any such law shall prejudi-
cially affect any right or privilege with respect

(A-) See ante, p. 336.

(1) See ante, p. 337.

(ro) Compare B. N. A. Act, 1867, s. 87, ante, p. 337.

(n) This matter is fully dealt with ; ante, p. 489, et seq.

Sessions at
least once a
year (I).

Certain pro-
visions of
B. N. A. Act,
1867, to
apply (m).

Legislation
touching
schools sub-
ject to certain
provisions (n),

MANITOBA. 593

to Denominational Schools which any class of
^persons have by Law or practice in the Province
-at the Union :

(2) An appeal shall lie to the Governor-
General in Council from any Act or decision of
the Legislature of the Province, or of any Pro-
vincial Authority affecting any right or privilege
of the Protestant or Roman Catholic minority of
the Queen’s subjects in relation to Education :

(3) In case any such Provincial Law, as from Power

reserved to

time to time seems to the Governor-General in Parliament.
Council requisite for the due execution of the
provisions of this section, is not made, or in case
any decision of the Governor-General in Council
on any appeal under this section is not duly
executed by the proper Provincial Authority in
that behalf, then, and in every such case, and as
far only as the circumstances of each case
require, the Parliament of Canada may make
remedial Laws for the due execution of the pro-
visions of this section, and of any decision of the
Governor-General in Council under this section.

23. Either the English or the French Ian- English and

. French

guage may be used by any person in the debates languages to
of the Houses of the Legislature, and both those
languages shall be used in the respective Records
and Journals of those Houses ; and either of
those languages may be used by any person, or
in any Pleading or Process, in or issuing from
any Court of Canada established under the
British North America Act, 1867, or in or from
all or any of the Courts of the Province. The
Acts of the Legislature shall be planted and pub-
lished in both those languages.

CAN. CON. 38

594 THE CANADIAN CONSTITUTION.

to ^’ I nasmu ch as the Province is not in debt,,

on e a P cer V tain e the said Province shall be entitled to be paid >
SS,t U o n f tof the and to receive from the Government of Canada,
by half-yearly payments in advance, interest at
the rate of five per centum per annum on the sum
of four hundred and seventy-two thousand and
ninety dollars.

th^Province ^**’ ^ Q sum ^ thirty thousand dollars shall
Government ‘ ^ e P a ^ y ear ty ^7 Canada to the Province, for
po?tion p toits the support of its Government and Legislature,
population. anc [ an annua l grant, in aid of the said Province,
shall be made, equal to eighty cents per head of
the population, estimated at seventeen thousand
souls ; and such grant of eighty cents per head
shall be augmented in proportion to the increase
of population, as may be shown by the census.
that shall be taken thereof in the year one thou-
sand eight hundred and eighty-one, and by each
subsequent decennial census, until its population
amounts to four hundred thousand souls, at
which amount such grant shall remain there-
after, and such sum shall be in full settlement of
all future demands on Canada, and shall be paid
half-yearly, in advance, to the said Province.

Sumes cer- ~ 6< Canada will assume and defray the
tam expenses. cnar g es f or the following services :

1. Salary of the Lieutenant-Governor.

2. Salaries and allowances of the Judges of
the Superior and District or County Courts.

3. Charges in respect oi the Department of
the Customs.

4. Postal Department.

5. Protection of Fisheries.

6. Militia.

7. Geological Survey.

MANITOBA. 595

8. The Penitentiary.

9. And such further charges as may be
incident to, and connected with the services
which, by the British North America Act, 1867,
appertain to the General Government, and as
are or may be allowed to the other Provinces.

[Sections 27-29 relate to customs and inland
revenue and are effete. ~\

SO. All ungranted or waste lands in the
Province shall be, from and after the date
of the said transfer, vested in the Crown, and P ur P ses ()-
administered by the Government of Canada for
the purposes of the Dominion, subject to, and
except and so far as the same may be affected
by, the conditions and stipulations contained in
the agreement for the surrender of Rupert’s
Land by the Hudson’s Bay Company to Her
Majesty.

3 1 . And whereas, it is expedient, towards Provisions as

‘ . . to Indian

the extinguishment of the Indian Title to the title –
lands in the Province, to appropriate a portion
of such ungranted lands, to the extent of one
million four hundred thousand acres thereof, for
the benefit of the families of the half-breed Q rant f 0r half
residents, it is hereby enacted, that, under regu- b
lations to be from time to time made by the
Governor-General in Council, the Lieutenant-
Governor shall select such lots or tracts in such
parts of the Province as he may deem expedient,
to the extent aforesaid, and divide the same
among the children of the half-breed heads of

(o) See post, for some observations on the position of Manitoba in
relation to lands within her borders.

(p) There has been much legislation by the parliament of Canada in
reference to the adjustment of the claims of half-breeds and squatters,
but the subject is hardly within our range.

596

THE CANADIAN CONSTITUTION.

Quieting

titles.

Grants by
H. B. Com-
pany.

The same.

Titles being
occupancy
with per-
mission;

By peaceable
possession.

families residing in the Province at the time of
the said transfer to Canada, and the same shall
be granted to the said children respectively, in
such mode and on such conditions as to settle-
ment and otherwise, as the Governor-General in
Council may from time to time determine.

32. For the quieting of titles, and assuring
to the settlers in the Province the peaceable
possession of the lands now held by them, it is
enacted as follows :

1. All grants of land in freehold made by the
Hudson’s Bay Company up to the eighth day of
March, in the year 1869, shall, if required by the
owner, be confirmed by grant from the Crown.

2. All grants of estates less than freehold in
land made by the Hudson’s Bay Company up to
the eighth day of March, aforesaid, shall, if
required by the owner, be converted into an
estate in freehold by grant from the Crown.

3. All titles by occupancy with the sanction
and under the license and authority of the Hud-
son’s Bay Company up to the eighth day of
March, aforesaid, of land in that part of the
Province in which the Indian Title has been
extinguished, shall, if required by the owner, be
converted into an estate in freehold by grant
from the Crown.

4. All persons in peaceable possession of
tracts of land at the time of the transfer to
Canada, in those parts of the Province in which
the Indian Title has not been extinguished, shall
have the right of pre-emption of the same, on
such terms and conditions as may be determined
by the Governor in Council.

MANITOBA. 597

5. The Lieutenant-Governor is hereby author-
ized, under regulations to be made from time to
time by the Governor-General in Council, to
make all such provisions for ascertaining and
adjusting, on fair and equitable terms, the rights
of cutting Hay held and enjoyed by the settlers
in the Province, and for the commutation of the
same by grants of land from the Crown.

33. The Governor-General in Council shall councnt r in
from time to time settle and appoint the mode

and form of Grants of Land from the Crown,
and any Order in Council for that purpose when
published in the Canada Gazette, shall have the
same force and effect as if it were a portion of
this Act.

34. Nothing in this Act shall in any way Ri
prejudice or affect the rights or properties of the
Hudson’s Bay Company, as contained in the con-
ditions under which that Company surrendered
Rupert’s Land to Her Majesty.

[Sections 35 and 36 are long since effete.]

English Law in Manitoba.

We have already (q) had occasion to refer to the pro-
vision of the first Dominion Statute (32-33 Vic. c. 3), deal-
ing with Rupert’s Land and the North- Western Territory,
which continued in force in that country the laws then in
force there. We have also referred (r) to the question as
to what those laws then in force were. This question has;
been much discussed in Manitoba. Its position in this,

(q) Ante, p. 553. (r) Ante, p. 581.

598 THE CANADIAN CONSTITUTION.

matter both (1) as to the date upon which such introduc-
tion took place, (2) the extent of such introduction, (3) the
effect to be given to that ordinance of the old Assiniboia
Council, to which we shall have to refer, as well as (4)
the extent of the introduction subsequently effected by
provincial Acts was considered by the Court of Queen’s
Bench (s) upon an appeal from the judgment of Killam, J.
{#), in Sinclair v. Mulligan. The first three questions are
exhaustively discussed in the latter judgment, and the
opinions expressed therein were adopted by the full Court,
Mr. Justice Dubuc, however, expressing some doubt as to
the correctness of the construction placed by the other
judges upon the Assiniboia ordinance. The holding of the
Court may be summed up in the language of Taylor, C.J. :
“Until 1870, the law of England, at the date of the Hudson’s

/”Bay Company’s charter, 1670, was the law in force here, and
indeed, except as to matters which have been dealt with by the
Dominion parliament, or ‘which arc within the jurisdiction of tin-

i Provincial legislature and hare been dealt with by it, that is the law

joi this province at the present day.”

In his judgment, Mr. Justice Killam adopts the view,
upon which enough has been said in chapter V., ante, that
the question of applicability is one proper for consideration.
The ordinance of 1862 (u) he construed as a law regulative
of practice and procedure merely, and not as a law bringing
forward the date as of which English law, in the general
sense of that term, was to be deemed to be introduced into
those Territories a question as to which the doubt ex-
pressed by Mr. Justice Dubuc seems to have much to sup-
port it. In the result, the Statute of Uses was held to be in
force, the Statute of Enrolment was held inapplicable, and
the Statute of Frauds -not to be in force because of date

(s) 5 Man. L. B. 17.
(0 3 Man. L. K. 481.

(u) The language of this ordinance was very much the same as that
of s. 38 of 34 Vic. c. 2 (Man.), quoted post.

MANITOBA. 599

subsequent to the H. B. Co.’s charter ; and a verbal bargain
as to land was given effect to under the Statute of Uses.

One of the first Acts of the Manitoba Legislature
{34 Vic. c. 2), was to establish a Supreme Court for the
province, having the jurisdiction distributed in England
between the Superior Courts of Law and Equity and of
Probate. By sections 38, 51 and 52 of this Act it was
provided :

” 38. 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.

“51. So much of the laws of the Governor and Council of
Assiniboia as may be inconsistent with ‘this Act, is hereby
repealed.

” 52. So much of the laws of the Governor and Council of
Assiniboia as are not repealed by the preceding section, or are
not inconsistent with this Act, or with any other Act to be
passed during this session, shall be extended to the whole of the
province of Manitoba.”

Section 38 would no doubt receive the same construc-
tion as the ordinance of 1862 afterwards received in Sin-
clair v. Mulligan (see ante), and be limited to the regulation
of practice and procedure, and this statute therefore is of
importance upon this question only as putting aside any
doubt as to the extent of the territorial operation of the
laws of the Assiniboia Council.

In 1874, by 38 Vic. c. 12 (see Con. Stat. Man., 1880,
c. 31), it was enacted :

” The Court of Queen’s Bench (v) shall decide and determine
all matters of controversy relative to property and civil rights
according to the laws existing, or established and being in
England, as such were, existed and stood on the 15th day of
July, 1870, so far as the same can be made applicable to matters
relating to property and civil rights in this province. . . .”

(v) “The Supreme Court of Manitoba” was given this name by 35
Yic. c. 3.

600 THE CANADIAN CONSTITUTION.

with a clause as to evidence, and practice and procedure, to*
the same effect. Were it not for the sharp distinction
drawn between law and practice in this enactment, it
might be contended that, so far as the general adoption of
English law is concerned, it should receive the same con-
struction as the Assiniboia ordinance of 1862, and be
limited to the introduction of English practice and
procedure. It has, however, been uniformly treated as
introducing general English law as it stood on the 15th of
July, 1870, and there can be little doubt that such is its
proper construction.

In reference to the limited operation of any provincial
statute introducing English law, it seems impossible to
escape from the result indicated by Taylor, C.J., in the
passage of his judgment which we have italicized (w).
From time to time the parliament of Canada has passed
statutes introducing certain portions of the statute law of
the Dominion, passed prior to 1870, into Manitoba. Statutes
since 1870 are of course in force there unless expressly
excepted. But there had been no general provision made
as to those matters which are within the legislative
competence of the Dominion parliament, so that ‘the law in
Manitoba as to all such matters was, until 1888, the
English law of 1670. As to matters within the legislative
competence of the provincial legislature there has been, as
we have seen, such general legislation not, indeed, in
terms so confined, but judicially determined to be so
limited. In Canadian Bank of Commerce v. Adamson (x)
it had been held that the English Bill of Exchange Act
(18 & 19 Vic. c. 67), was in force in Manitoba, but this
decision was based upon a construction of the ordinance of
1862, which was not followed in Sinclair v. Mulligan.
However, by 51 Vic. c. 33 (Dom.) for the removal of
doubts the difficulty suggested in reference to the intro-
duction of English law T in relation to matters other than

(w) Ante, p. 598. (x) 1 Man. L. R. 3.

MANITOBA. 601

those within the legislative competence of a provincial
legislature was removed, and it was enacted that :

” The laws of England relating to matters within the juris-
diction of the parliament of Canada, as the same existed on 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.”
the legal rate of interest, however, being placed at six per
cent., as in the other provinces.

The same principle in reference to the introduction of
English statutory law of local application in England has
been invoked in Manitoba, as in the older provinces (y\
In Attorney-General v. Richard (z), it was held by Chief
Justice Wallbridge, that the Imperial statute 18 & 19
Vic. c. 90, under which costs may be ordered against the
Crown in England, was not introduced into Manitoba by
the provincial Act to which we have above referred :

” That Act is local as to England, and required a special
Act to make it applicable to the Isle of Man ; besides, the manner
of obtaining costs pointed out under it could not apply here.
We have not the officers, or the means territorially of enforcing
a demand for costs, and the court will not make a decree which
it cannot enforce.”

Public Lands in Manitoba.

Upon the formation of the province of Manitoba (a\
provision was made for the administration by the Governor
in Council of the public lands of that province as a federal
asset. Statutes have from time to time been passed
making provision for the issue of Letters Patent granting
such lands to purchasers from the Hudson’s Bay Co., to

(y) Ante, p. 120. (z) 4 Man. L. K. 336.

(a) See 33 Vic. c. 3, s. 30, ante, p. 595.

602 THE CANADIAN CONSTITUTION.

half-breeds, squatters, and subsequent settlers (b). A large
portion has been granted to ‘the Canadian Pacific Railway
Co., under the terms of its charter, and up to the present
time the only concession to the province is that contained
in R. S. C. c. 47, under which swamp lands are to be trans-
ferred to the province, and an endowment of 150,000 acres
is provided for the University of Manitoba. The addi-
tional territory since annexed to the province is in the
same position, being subject moreover to interests acquired
therein, prior to such annexation, under Dominion legis-
lation.

A very interesting question came before the Court of
Queen’s Bench in Manitoba, in 1891, in reference to the
power of the Canadian Pacific Railway Co. to hold land in
that province without taking out the license required by
provincial statutes (c). In delivering the judgment of the
Court, Mr. Justice Killam says :

“By the Act, 49 Vic. c. 11, s. 4 (Man.), ‘No company,
corporation, or other institution not incorporated under the
provisions of the statutes of this province, shall he capable of
taking, holding, or acquiring any real estate within this province
unless under license from the Lieutenant- Governor in Council,
under any statute of this province.’ Several statutes have, from
time to time, been passed by the provincial legislature, author-
izing the issue of licenses to corporations, permitting them to
take and hold lands or securities upon lands in Manitoba. These
have been repealed and consolidated and to some extent
amended by the Act, 53 Vic. c. 23, s. 15 (Man.). The C. P. R,
Co. has taken out no license under any of these statutes.
By the Act, 44 Vic. c. 14 (Dom.), provision was made for the
extension of Manitoba by including within it certain territory,
formerly a portion of the North-West Territories. One term of
this extension was, as provided by section 2, sub-section (1) :
4 The said increased limit and territory thereby added to the
province of Manitoba shall be subject to all such provisions as

(b) SeeR. S. C c. 48.

(c) 7 Man. L. R. 389. Re C. P. R. Co.

MANITOBA. 603

may have been, or shall hereafter be enacted respecting the
C. P. B., and the lands to be granted in aid thereof.’ The
assent of the Legislature of- Manitoba to this extension and its
terms was given by the Acts 44 Vic. (3rd session) c. 1 and 6,
assented to respectively the 4th March and 21st May, 1881. The
extension took effect the 1st July, 1881. . . . Before the
territory in question was included in Manitoba, and when the
Act 44 Vic. c. 1 (Dom.) was passed, that territory was not in-
cluded in any province, and was subject fully to the legislative
authority of the parliament of Canada in all matters. What-
ever, then, might be the position in the provinces, that parlia-
ment could authorize any corporation to take and hold lands in
the North- West Territories. It is difficult to conceive any more
effectual mode of conferring such a power than is exhibited in
the statute 44 Vic. c. 1 (Dom.), the contract and the charter.
And, to wind up the transaction, the lands are to be granted to
the Company by the letters patent of the Crown.”

As an indemnity, however, for the want of public lands,
the province receives, in addition to other subsidy, a sub-
sidy of $100,000 per annum from the federal government.

CHAPTER XV.

BRITISH COLUMBIA.

The proceedings which culminated in the admission of
British Columbia to the Union sufficiently appear in the
following :

ORDER IN COUNCIL

RESPECTING

THE PROVINCE OF BRITISH COLUMBIA (</).

A T the Court at Windsor, the 16th day of Nay, 18TL

PRESENT.

The QUEEN’S MOST Excellent Majesty.
His Royal Highness Prince ARTHUR.

Lord Privy Seal. Lord Chamberlain,

Earl Cowper. Mr. Secretary Cardwell.

Earl of Kimberley. Mr. Ayrton.

WHEREAS by the ” British North America Act, 1867,”
provision was made for the Union of the Provinces
of Canada, Nova Scotia and New Brunswick into the

(d) See Dom. Stat., 1872, p. Ixxxiv. See ako B. N. A. Act, s. 146.

BRITISH COLUMBIA. 605

Dominion of Canada, and it was (amongst other things)
enacted that it should be lawful for the Queen, by and with
the advice of Her Majesty’s Most Honourable Privy Coun-
cil, on Addresses from the Houses of Parliament of Canada,
and of the Legislature of the Colony of British Columbia,
to admit that Colony into the said Union, on such terms
and conditions as should be in the Addresses expressed, and
as the Queen should think fit to approve, subject to the
provisions of the said Act ; And it was further enacted
that the provisions of any Order in Council in that behalf
should have effect as if they had been enacted by the Par-
liament of the United Kingdom of Great Britain and
Ireland :

And whereas by Addresses from the Houses of the Par-
liament of Canada, and from the Legislative Council of
British Columbia respectively, of which Addresses copies
are contained in the Schedule to this Order annexed, Her
Majesty was prayed, by and with the advice of Her Most
Honourable Privy Council, under the one hundred and
forty-sixth section of the hereinbefore recited Act, to admit
British Columbia into the Dominion of Canada, on the
terms and conditions set forth in the said Addresses :

And whereas Her Majesty has thought fit to approve of
the said terms and conditions, it is hereby declared by Her
Majesty, by and with the advice of Her Privy Council, in
pursuance and exercise of the powers vested in Her
Majesty by the said Act of Parliament, that from, and
after the twentieth day of July, one thousand eight
hundred and seventy -one, the said Colony of British
Columbia shall be admitted into and become part of the
Dominion of Canada, upon the terms and conditions set
forth in the hereinbefore recited Addresses. And, in
accordance with the terms of the said Addresses relating
to the Electoral Districts of British Columbia, for which
the first election of members to serve in the House of Com-
mons of the said Dominion shall take place, it is hereby

606 THE CANADIAN CONSTITUTION.

further ordered and declared that such electoral districts

shall be as follows :

[Here follows an enumeration of these electoral districts.]
And the Right Honorable Earl of Kimberley, ofte of

Her Majesty’s Principal Secretaries of State, is to give the

necessary directions therein accordingly.

ARTHUR HELPS.

SCHEDULE.

Address of the Senate of Canada ( cj.
To the Queen’s Most Excellent Majesty.
Most Orations Socereif/n,

We, Your Majesty’s most dutiful and loyal subjects, the
Senate of Canada in Parliament assembled, humbly
approach Your Majesty for the purpose of representing :

That by a despatch from the Governor of British
Columbia, dated 23rd January, 1871, with other papers
laid before this House, by message from His Excellency
the Governor-General, of the 27th February last, this
House learns that the Legislative Council of that colony,
in council assembled, adopted, in January last, an Address
representing to Your Majesty that British Columbia was
prepared to enter into Union with the Dominion of
Canada, upon the terms and conditions mentioned in the
said Address, which is as follows :

To the Queen’s Most Excellent Majesty.
M<>xt Gh”aciou& Sovereign,

We, Your Majesty’s most dutiful and loyal subjects, the
Members of the Legislative Council of British Columbia,
(e) The address of the House of Commons is identical in its terms.

BRITISH COLUMBIA. 607

in council assembled, humbly approach Your Majesty for
the purpose of representing :

That, during the last session of the late Legislative
Council, the subject of the admission of the Colony of
British Columbia into the Union or Dominion of Canada
was taken into consideration, and a resolution on the-
subject was agreed to, embodying the terms upon which it-
was proposed that this colony should enter the Union ;

That after the close of the session, Delegates were-
sent by the Government of this Colony to Canada to
confer with the Government of the Dominion w r ith respect
to the admission of British Columbia into the Union upon
the terms proposed ;

That after considerable discussion by the Delegates
with the Members of the Government of the Dominion of
Canada, the terms and conditions hereinafter specified
were adopted by a Committee of the Privy Council of
Canada, and were by them reported to the Governor-
General for his approval ;

That such terms were communicated to the Govern-
ment of this Colony by the Governor- General of Canada,
in a despatch dated July 7th, 1870, and are as follows :

1. Canada shall be liable for the debts and liabilities of
British Columbia existing at the time of the Union.

2. British Columbia not having incurred debts equal to
those of the other Provinces now constituting the Dominion,
shall be entitled to receive, by half-yearly payments in
advance, from the General Government, interest at the rate
of five per cent, per annum on the difference between the
actual amount of its indebtedness at the date of the
Union, and the indebtedness per head of the population of
Nova Scotia and New Brunswick (27.77 dollars), the popu-
lation of British Columbia being taken at 60,000.

3. The following sums shall be paid by Canada to
British Columbia for the support of its Government and

1308 THE CANADIAN CONSTITUTION.

Legislature, to wit, an annual subsidy of 35,000 dollars,
and an annual grant equal to 80 cents per head of the said
population of 60,000, both half-yearly in advance, such
grant of 80 cents per head to be augmented in proportion
to the increase of population, as may be shown by each
subsequent decennial census, until the population amounts
to 400,000, at which rate such grant shall thereafter
remain, it being understood that the first census be taken
in the year 1881.

4. The Dominion will provide an efficient mail service,
fortnightly, by steam communication between Victoria and
San Francisco, and twice a week between Victoria and
Olympia ; the vessels to be adapted for the conveyance of
freight and passengers.

5. Canada will assume and defray the charges for the
following services :

A. Salary of the Lieutenant-Governor ;

B. Salaries and allowances of the Judges- of the Supe-

rior Courts and the County or District Courts ;

C. The charges in respect to the Department of

Customs ;

D. The Postal and Telegraph Services ;

E. Protection and encouragement of Fisheries :

F. Provision for the Militia ;

G. Lighthouses, Buoys and Beacons, Shipwrecked Crews,

Quarantine and Marine Hospitals, including a
Marine Hospital at Victoria ;
H. The Geological Survey ;
I. The Penitentiary ;

And such further charges as may be incident to and con-
nected with the services which by the “British North
America Act, 1867,” appertain to the General Government,
and as are or may be allowed to the other Provinces.

6. Suitable pensions, such as shall be approved of by
Her Majesty’s Government, shall be provided by the Gov-

BRITISH COLUMBIA. 609

ernment of the Dominion for those of Her Majesty’s
servants in the Colony whose position and emoluments
derived therefrom would be affected by political changes
on the admission of British Columbia into the Dominion of
Canada.

7. It is agreed that the existing Customs tariff and
Excise duties shall continue in force in British Columbia
until the railway from the Pacific coast and the system of
railways in Canada are connected, unless the Legislature of
British Columbia should sooner decide to accept the Tariff
and Excise Laws of Canada (/). When Customs and
Excise duties are, at the time of the union of British
Columbia with Canada, leviable on any goods, wares or
merchandise in British Columbia, or in the other Provinces
of the Dominion, those goods, wares and merchandise may,
from and after the Union, be imported into British Colum-
bia from the Provinces now composing the Dominion, or
into either of those Provinces from British Columbia on
proof of payment of the Customs or Excise duties leviable
thereon in the Province of exportation and on payment of
such further amount (if any) of Customs or Excise duties
as are leviable thereon in the Province of importation.
This arrangement to have no force or effect after the assim-
ilation of the Tariff and Excise duties of British Columbia
with those of the Dominion.

8. British Columbia shall be entitled to be represented
in the Senate by three members, and by six members in the
House of Commons. The representation to be increased
under the provisions of ” British North America Act,
1867.”

9. The influence of the Dominion Government will be
used to secure the continued maintenance of the naval
station at Esquimalt.

(/) See 35 V. c. 37. On 27th March, 1872, British Columbia decided,
to accept the Canadian tariff, hence the enactment.
CAN. CON. 39

610 THE CANADIAN CONSTITUTION.

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 effect one and not the
ivhole of the Provinces comprising the Dominion, and
except so far as the same may be varied by this Minute)
be applicable to British Columbia in the same way and to
the like extent as they apply to the other Provinces of tlie
Dominion, and as if the Colony of British Columbia had
been one of the Provinces originally united by the -svnV
Act.

11. The Government of the Dominion undertake to
secure the commencement simultaneously, within two years
from the date of the Union, of the construction of a railway
from the Pacific towards the Rocky Mountains, and from
such point as may be selected east of the Rocky Mountains,
towards the Pacific, to connect the seaboard of British
Columbia with the railway system of Canada ; and further,
to secure the completion of such railway within ten years
from the date of the Union.

And the Government of British Columbia agree to
convey to the Dominion Government in trust, to be appro-
priated in such manner as the Dominion Government may
deem advisable in furtherance of the construction of the
said railway, a similar extent of public lands (g) along the
line of railway throughout its entire length in British
Columbia (not to exceed, however, twenty (20) miles on
each side of said line,) as may be appropriated for the same
purpose by the Dominion Government from the public
lands of the North-West Territories and the Province of
Manitoba : Provided that the quantity of land which may
be held under pre-emption right or by Crown grant
within the limits of the tract of land in British Columbia
to be so conveyed to the Dominion Government shall be

(g) See Attorney-General of British Columbia v, Attorney- General
of Canada, 14 App. Gas. 295 ; noted, ante, p. 530.

BRITISH COLUMBIA. 611

made good to the Dominion from contiguous public lands ;
and provided further, that until the commencement, within
two years, as aforesaid, from the date of the Union, of the
construction of the said railway, the Government of British
Columbia shall not sell or alienate any further portions of
the public lands of British Columbia in any other way than
under right of pre-emption requiring actual residence of the
pre-emptor on the land claimed by him. In consideration of
the land to be so conveyed in aid of the construction of the
said railway, the Dominion Government agree to pay
to British Columbia from the date of the Union, the sum
of 100,000 dollars per annum, in half-yearly payments in
advance.

12. The Dominion Government shall guarantee the
interest for ten years from the date of the completion of
the works, at the rate of five per centum per annum, on
such sum, not exceeding 100,000 sterling, as may be
required for the construction of a first-class graving dock
.at Esquimalt.

13. The charge of the Indians, and the trusteeship and
management of the lands reserved for their use and benefit,
shall be assumed by the Dominion Government, and a
policy as liberal as that hitherto pursued by the British
Columbia Government shall be continued by the Dominion
Government after the Union.

To carry out such policy, tracts of land of such extent
as it has hitherto been the practice of the British Columbia
Government to appropriate for that purpose, shall from
time to time be conveyed by the Local Government to the
Dominion Government in trust for the use and benefit of
the .Indians on application of the Dominion Government;
and in case of disagreement between the two Govern-
ments respecting the quantity of such tracts of land to be
so granted, the matter shall be referred for the decision of
the Secretary of State for the Colonies.

612 THE CANADIAN CONSTITUTION.

14. The Constitution of the Executive Authority and
of the Legislature of British Columbia shall, subject to the
provisions of the ” British North America Act, 1867,” con-
tinue as existing at the time of the Union until altered
under the authority of the said Act, it being at the same
time understood that the Government of the Dominion
will readily consent to the introduction of responsible
government when desired by the inhabitants of British
Columbia, and it being likewise understood that it is the
intention of the Governor of British Columbia, under the
authority of the Secretary of State for the Colonies, to-
amend the existing Constitution of the Legislature by
providing that a majority of its Members shall be elective.

The Union shall take effect according to the foregoing
terms and conditions on such day as Her Majesty by and
with the advice of Her Most Honorable Privy Council
may appoint (on addresses from the Legislature of the
Colony of British Columbia and of the Houses of Parlia-
ment of Canada in the terms of the 146th section of the
” British North America Act, 1867,”) and British Columbia
may in its address specify the electoral districts for which
the first election of Members to serve in the House of
Commons shall take place.

That such terms have proved generally acceptable to*
the people of this Colony.

That this Council is, therefore, willing to enter into
Union with the Dominion of Canada upon such terms, and
humbly submit that, under the circumstances, it is expedient
that the admission of this Colony into such Union, as
aforesaid, should be effected at as early a date as may be
found practicable under the provisions of the 146th section
of the “British North America Act, 1867.

We, therefore, humbly pray that Your Majesty will be-
graciously pleased, by and with the advice of Your
Majesty’s Most Honorable Privy Council, under the pro-
visions of the 146th section of “British North America

BRITISH COLUMBIA. 613

Act, 1867,” to admit British Columbia into the Union or
Dominion of Canada, on the basis of the terms and condi-
tions offered to this Colony by the Government of the
Dominion of Canada, hereinbefore set forth; and inasmuch
as by the said terms British Columbia is empowered in its
address to specify the electoral districts for which the first
election of members to serve in the House of Commons
shall take place, we humbly pray that such electoral
districts may be declared, under the Order in Council, to be
.as follows : (Here follows an enumeration of such districts.
See now R. S. C. c. 6).

We further humbly represent, that the proposed terms
and conditions of Union of British Columbia with Canada,
as stated in the said Address, are in conformity with those
preliminarily agreed upon between delegates from British
Columbia and the Members of the Government of the
Dominion of Canada, and embodied in a Report of a Com-
mittee of the Privy Council, approved by His Excellency
the Governor-General in Council, on the 1st July, 1870,
which approved Report is as follows :

Copy of a Report of a Committee of the Honorable the
Privy Council, approved by His Excellency the
Governor-General in Council, on the 1st of July,
1870.

The Committee of the Privy Council have had under
consideration a Despatch, dated the 7th May, 1870, from
the Governor of British Columbia, together with certain
Resolutions submitted by the Government of that colony
to the Legislative Council thereof both hereunto annexed
on the subject of the proposed Union of British
Columbia with the Dominion of Canada; and after several
interviews between them and the Honorable Messrs.
Trutch, Helmcken and Carrall, the Delegates from British
Columbia, and full discussion with them of the various
questions connected with that important subject, the Com-
mittee now respectfully submit for Your Excellency’s

614 THE CANADIAN CONSTITUTION.

approval, the following terms and conditions to form the
basis of a political union between British Columbia and
the Dominion of Canada: (Setting out such terms as-
before).

(Certified.) WM. H. LEE,

Clerk Privy Council.

We further humbly represent that we concur in the 1
terms and conditions of Union set forth in the said
Address, and approved Report of the Committee of the
Privy Council above mentioned ; and most respectfully
pray that your Majesty will be graciously pleased, by and
with the advice of your Majesty’s most Honorable Privy
Council, under the 146th clause of “The British North
America Act, 1867,” to unite British Columbia with the
Dominion of Canada, on the terms and conditions above
set forth.

The Senate, Wednesday, April 5th, 1871.

(Signed.) JOSEPH CAUCHON, Speaker.

Provincial Constitution.

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 council, to make
laws for the peace, order, and good government of the
colony; it recites also the Colonial Laws Validity Act,
1865 (h), as sufficient warrant for the contemplated change
in the colonial constitution ; and then proceeds to abolish
the legislative council and to establish in its stead a legis-

(h) See ante, p. 422. See the Act in Appendix.

BRITISH COLUMBIA. 615

lative assembly of wholly elective members. The present
provincial constitution can be studied in the Consolidated
Statutes of the province (1888) chapter 22.

Introduction of English Law.

In the same session (by Act No. 70 of 34 Vic.) it was
provided that

” The civil and criminal laws of England, as the same existed
on the 19th day of November, 1858, and so far as the same are
not from local circumstances inapplicable, are and shall be in. 5
force in all parts of the colony of British Columbia.”

This statute was held (i) 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.

In Reynolds v. Yaughan (j), it was held that under this
statute Imperial Orders in Council, even though passed
pursuant to Imperial statutes which were themselves in
force in the colony, would not operate therein, unless made
specially applicable by subsequent Imperial or colonial
enactment.

We may note also the case of Sproule v. Reg. (k), in
which is discussed the question as to the operation of pro-
vincial jury laws in criminal cases. It includes in ” organi-
zation ” some matters in reference to the procurement of a
jury, which in Ontario were deemed matters of ” procedure,’*
and in this view upholds provincial legislation even apart
from the Dominion Criminal Procedure Act.

Reference to the decisions of the British Columbia
courts particularly those of date closely following the
admission of the province discloses that very extreme,

(t) M. falsely called S. v. S., 1 B. C. Kep. 25.

(j) 1 B. C. Kep. 3.

(k) 2 B. C. Rep. 219 ; see ante, p. 417.

616 THE CANADIAN CONSTITUTION.

views were entertained as to the predominancy of the
parliament of Canada over the provincial legislatures. The
formula (I) enunciated in Fredericton v. Reg. was adopted,
and in the ” Thrasher ” Case (m) carried to lengths which
in view of the later decisions cannot be maintained. We
should, however, note that in British Columbia have arisen
the only cases in reference to the power of a provincial
legislature to legislate in regard to aliens. The ” Chinese
Tax Act, 1878,” was held (n) ultra vires as an infringement
upon the power of the Dominion parliament over trade and
commerce and over aliens, and as inconsistent with the
provisions of section 132 of the B. N. A. Act, vesting in
that parliament power to pass laws in aid of the treaty
obligations of the Empire so far as they affect Canada.
In two later cases (o) the same principle was applied, and a
provincial Act imposing a differential tax upon Chinese
miners was also held invalid.

By R S. C. c. 144, s. 2, it is provided :

2. The criminal law of England as it stood on the 19th day
of November, in the year 1858. and as the same has since been
repealed, altered, varied, modified or affected by any ordinance
or Act (still having the force of law) of the colony of British
Columbia, or of the colony of Vancouver Island before the Union
of such colonies, or of the colony of British Columbia passed
since such Union, or by any Act of the parliament of Canada,
shall be the criminal law of the province of British Columbia.

In view of the recent codification of our criminal law, it
is not worth while to discuss the effect of this enactment
on the Colonial Act which made “applicability” the test (p),
of the introduction into the colony of English law.

(I) See ante, p. 206.
(m) 1 B. C. Rep. 153.

(n) Tai Sing v. Maguire, 1 B. C. Rep. 101 Mr. Justice Gray,
(o) Reg. v. Wing Chong, 2 B. C. Rep. 150 ; Reg. v. Gold Commis-
sioners of Victoria, ib. 260 Sup. Ct. B. C.; see also notes to s. 91, s-s. 25-
(p) See ante, p. 615 ; see also chapter V. upon the general question.

CHAPTER XVI.

PRINCE EDWARD ISLAND.

The admission of Prince Edward Island to the Dominion
was effected by the following Order in Council :

At the Court at Windsor, the 26th day of June, 1873.

PRESENT :

The QUEEN’S Most Excellent Majesty.

Lord President. Earl of Kimberley.

Earl Granville. Lord Chamberlain.

Mr. Gladstone.

WHEREAS by the ” British North America Act, 1867,”
provision was made for the Union of the Provinces
of Canada, Nova Scotia and New Brunswick into the
Dominion of Canada, and it was (amongst other things)
enacted that it should be lawful for the Queen, by and
with the advice of Her Majesty’s Most Honorable Privy
Council, on Addresses from the Houses of the Parliament
of Canada, and of the Legislature of the Colony of Prince
Edward Island, to admit that Colony into the said Union
on such terms and conditions as should be in the Addresses
expressed, and as the Queen should think fit to approve,
subject to the provisions of the said Act; and it was
further enacted that the provisions of any Order in

618 THE CANADIAN CONSTITUTION.

Council in that behalf, should have effect as if they had
been enacted by the Parliament of the United Kingdom of
Great Britain and Ireland.

And whereas by Addresses from the Houses of the
Parliament of Canada, and from the Legislative Council
and House of Assembly of Prince Edward Island respec-
tively, of which Addresses, copies are contained in the
Schedule to this Order annexed, Her Majesty was prayed,,
by and with the advice of Her Most Honorable Privy
Council, under the one hundred and forty-sixth section of.
the hereinbefore recited Act. to admit Prince Edward
Island into the Dominion of Canada, on the terms and
conditions set forth in the said Addresses.

And whereas Her Majesty has thought fit to approve of
the said terms and conditions, it is hereby ordered and
declared by Her Majesty, by and with the advice of Her
Privy Council, in pursuance and exercise of the powers
vested in Her Majesty, by the said Act of Parliament, that
from and after the first day of July, one thousand eight
hundred and seventy-three, the said Colony of Prince
Edward Island shall be admitted into and become part of
the Dominion of Canada, upon the terms and conditions
set forth in the hereinbefore cited Addresses.

And in accordance with the terms of the said Addresses
relating to the Electoral Districts for which, the time
within which, and the laws and provisions under which
the first election of members to serve in the House of
Commons of Canada, for such Electoral Districts shall be
held, it is hereby further ordered and declared that
” Prince County ” shall constitute one district, to be
designated ” Prince County District,” and return two
members; that “Queen’s County” shall constitute one
district, to be designated ” Queen’s County District,” and
return two members ; that ” King’s County ” shall consti-
tute one district, to be designated “King’s County District,”
and return two members ; that the election of members to

PRINCE EDWARD ISLAND. 61 9 1

serve in the House of Commons of Canada, for such Elec-
toral Districts shall be held within three calendar months
from the day of the admission of the said Island into the
Union or Dominion of Canada ; that all laws which at the
date of this Order in Council relating to the qualification
of any person to be elected or sit or vote as a member of
the House of Assembly of the said Island, and relating ta
the qualifications or disqualifications of voters, and to the
oaths to be taken by voters, and to Returning Officers and
Poll Clerks, and their powers and duties, and relating to
Polling Divisions within the said Island, and relating to
the proceedings at elections, and to the period during
which such elections may be continued, and relating to
the trial of controverted elections, and the proceedings,
incidental thereto, and relating to the vacating of seats of
the members, and to the execution of new writs, in case of
any seat being vacated otherwise than by a dissolution,
and to all other matters connected with or incidental to
elections of members to serve in the House of Assembly of
the said Island, shall apply to elections of members to
serve in the House of Commons for the Electoral Districts
situate in the said Island of Prince Edward.

And the Right Honorable Earl of Kimberley, one of
Her Majesty’s Principal Secretaries of State, is to give the
necessary directions herein, accordingly.

ARTHUR HELPS.

SCHEDULE.

To the QUEEN’S Most Excellent Majesty.
Most Gracious Sovereign,

We, Your Majesty’s most dutiful and loyal subjects,,
the Commons of the Dominion of Canada in Parliament
assembled, humbly approach Your Majesty for the purpose,
of representing :

620 THE CANADIAN CONSTITUTION.

That during the present Session of Parliament we have
taken into consideration the subject of the admission of
the Colony of Prince Edward Island into the Union or
Dominion of Canada, and have resolved that it is expedient
that such admission should be effected at as early a date as
may be found practicable, under the one hundred and
forty-sixth section of the “British North America Act,
1867,” on the conditions hereinafter set forth, which
having been agreed upon with the Delegates from the said
Colony ; that is to say :

That Canada shall be liable for the debts and liabilities
of Prince Edward Island at the time of the Union ;

That in consideration of the large expenditure author-
ized by the Parliament of Canada for the construction of
railways and canals, and in view of a possibility of a re-ad-
justrnent of the financial arrangements between Canada and
the several Provinces now embraced in the Dominion, as
well as the isolated and exceptional condition of Prince
Edward Island, that Colony shall, on entering the Union,
be entitled to incur a debt equal to fifty dollars per head
of its population, as shewn by the Census Returns of 1871,
that is to say : four millions seven hundred and one thou-
sand and fifty dollars ;

That Prince Edward Island not having incurred debts
equal to the sum mentioned in the next preceding Resolu-
tion, shall be entitled to receive, by half-yearly payments,
in advance, from the General Government, interest at the
rate of five per cent, per annum on the difference, from
time to time, between the actual amount of its indebted-
ness and the amount of indebtedness authorized as aforesaid,
viz., four millions seven hundred and one thousand and
fifty dollars;

That Prince Edward Island shall be liable to Canada for
the amount (if any) by which its public debt and liabilities
at the date of the Union, may exceed four millions seven
hundred and one thousand and fifty dollars and shall be

PRINCE EDWARD ISLAND. 621

chargeable with interest at the rate of five per cent, per
annum on such excess ;

That as the Government of Prince Edward Island holds
no land from the Crown, and consequently enjoys no
revenue from that source for the construction and main-
tenance of local works, the Dominion Government shall pay
by half-yearly instalments, in advance, to the Government
of Prince Edward Island, forty-five thousand dollars per
annum, less interest at five per cent, per annum, upon any
sum not exceeding eight hundred thousand dollars which
the Dominion Government may advance to the Prince
Edward Island Government for the purchase of lands now
held by large proprietors ;

That in consideration of the transfer to the Parliament
of Canada of the powers of taxation, the following sums
shall be paid yearly by Canada to Prince Edward Island, for
the support of its Government and Legislature, that is to
say, thirty thousand dollars and an annual grant equal to
eighty cents per head of the population, as shown by the
Census returns of 1871, viz., 94,021, both by half-yearly
payments in advance, such grant of eighty cents per head
to be augmented in proportion to the increase of population
of the Island as may be shown by each subsequent decen-
nial Census, until the population amounts to four hundred
thousand, at which rate such grant shall thereafter remain
it being understood that the next Census shall be taken in
the year 1881 ;

That the Dominion Government shall assume and defray
all the charges for the following services, viz.:

The salary of the Lieutenant Governor ;

The salaries of the Judges of the Superior Court and
of the District or County Courts when established;

The charges in respect of the Department of Customs ;

The Postal Department ;

The protection of Fisheries ;

622 THE CANADIAN CONSTITUTION.

The provision for the Militia ;

The Lighthouses, Shipwrecked Crews, Quarantine, and
Marine Hospitals ;

The Geological Survey ;

The Penitentiary ;

Efficient Steam Service for the conveyance of mails and
passengers, to be established and maintained between the
Island and the mainland of the Dominion, Winter and
Summer, thus placing the Island in continuous communi-
cation with the Intercolonial Railway and the railway
system of the Dominion ;

The maintenance of telegraphic communication between
the Island and the mainland of the Dominion ;

And such other charges as may be incident to, and
connected w^ith, the services which by the ” British North
America Act, 1867,” appertain to the General Government,
and as are or may be allowed to the other Provinces ;

That the railways under contract and in course of con-
struction for the Governmont of the Island, shall be the
property of Canada ;

That the new building in which are held the Law
Courts, Registry Office, etc., shall be transferred to Canada,
on the payment of sixty-nine thousand dollars. The pur-
chase to include the land on which the building stands, and
a suitable space of ground in addition, for yard room, &c. ;

That the Steam Dredge Boat in course of construction,
shall be taken by the Dominion, at a cost not exceeding
twenty-two thousand dollars ;

That the Steam Ferry Boat owned by the Goverment
of the Island, and used as such, shall remain the property
of the Island ;

That the population of Prince Edward Island having
been increased by fifteen thousand or upwards since the
year 1861, the Island shall be represented in the House of
Commons of Canada by six Members ; the representation

PRINCE EDWARD ISLAND. 623

to be re-adjusted, from time to time, under the provisions
of the ” British North America Act, 1867 ” ;

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,”
continue, as at the time of the Union, until altered under
the authority of the said Act, and the House of Assembly
of Prince Edward Island existing at the date of the Union
shall, unless sooner dissolved, continue for the period for
which it was elected ;

That the Provisions in the “British North America
Act, 1867,” shall, except those parts thereof which are in
terms made, or by reasonable intendment, may be held to
be especially 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 reso-
lutions, be applicable to Prince Edward Island, in the
same way and to the same extent as they apply to the other
Provinces of the Dominion, and as if the Colony of Prince
Edward Island had been one of the Provinces originally
united by the said Act.

That the Union shall take place on such day as Her
Majesty may direct by Order in Council, on Addresses to
that effect from the Houses of Parliament of Canada and
of the Legislature of the Colony of Prince Edward Island,
under the one hundred and forty-sixth section of the
” British North America Act, 1867,” and that the Electoral
Districts for which, the time within which, and the laws
and provisions under which, the first Election of Members
to serve in the House of Commons of Canada for such
Electoral Districts shall be held, shall be such as the said
Houses of the Legislature of the said Colony of Prince
Edward Island may specify in their said Addresses.

We, therefore, humbly pray that Your Majesty will be
graciously pleased, by and with the advice of Your Majesty’s
Most Honourable Privy Council, under the provisions of the

624 THE CANADIAN CONSTITUTION.

one hundred and forty-sixth section of the ” British North
America Act, 1867,” to admit Prince Edward Island into-
the Union or Dominion of Canada, on the terms and condi-
tions hereinbefore set forth.

(Signed) JAMES COCKBURN,

Speaker.

House of Commons,

20th May, 1873.

A similar address was voted by the Senate of the
Dominion, and by the two Houses of the Prince Edward
Island Legislatures the latter specifying the electoral dis-
tricts as set out in the Order in Council.

APPENDICES.

1 COLONIAL LAWS VALIDITY ACT, 1865.

2. LETTERS PATENT CONSTITUTING THE OFFICE OF
GOVERNOR GENERAL OF CANADA.

a. INSTRUCTIONS TO ACCOMPANY SAME
4. QUEBEC RESOLUTIONS.

CAN. CON. 40

APPENDIX I.

COLONIAL LAWS VALIDITY ACT, 1865.
28-29 Vic., CAP. 63, (!MP.)

An Act to remove Doubts as to the Validity of Colonial Laics.

[29ra JUNE, 1865.

WHEREAS doubts have been entertained respecting the
validity of divers laws enacted, or purporting to be enacted
by the Legislatures of certain of Her Majesty’s Colonies,
and respecting the powers of such Legislatures ; and it is
expedient that such doubts should be removed :

Be it hereby enacted by the Queen’s Most Excellent
Majesty, by and with the advice and consent of the Lords
Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as
follows :

1. The term “colony” shall in this Act include all of Definitions
Her Majesty’s Possessions abroad, in which there shall
exist a legislature as hereinafter denned, except the Channel
Islands, the Isle of Man, and such territories as may for the
time being be vested in Her Majesty, under or by virtue of
any Act of Parliament for the government of India ;

The terms “Legislature” and “Colonial Legislature” “Legislat-
shall severally signify the authority (other than the Imperial n j a j Legisla-
Parliament or Her Majesty in Council), competent to make ture “l
laws for any colony ;

The term “Representative Legislature” shall signify “Representa-
any Colonial Legislature which shall comprise a legislativ 6 ture”;
body of which one-half are elected by inhabitants of the
colony ;

The term ” Colonial Law” shall include laws made for “Colonial
any colony, either by such Legislature as aforesaid or by
Her Majesty in Council ;

628 APPENDIX.

Act of Parlia- An Act of Parliament, of any provision thereof, shall,, in
when toex- construing this Act, be said to extend to any colony when it
tend to j g ma de applicable to such colony by the express words or

necessary intendment of any Act of Parliament ;
“Governor”; The term “Governor” shall mean the officer lawfully

administering the Government of any colony ;

“Letters Pa- The term “Letters Patent” shall mean letters patent-
under the Great Seal of the United Kingdom of Great Britain
and Ireland.

Colonial Law 2. Any colonial law, which is or shall be repugnant to
ripugnan’cy 01 the P rovisions of an y Act of Parliament extending to the
colony to which such law may relate, or repugnant to any
order or regulation made under authority of such Act of
Parliament, or having in the colony the force or effect of
such Act, shall be read subject to such Act, order, or
regulation, and shall, to the extent of such repugnancy,
but not otherwise, be and remain absolutely void and in-
operative.

Colonial Law 3. No colonial law shall be, or be deemed to have been,
for1Spug- V ld v0 ^ or in P erative on tne ground of repugnancy to the law
nancy. of England, unless the same shall be repugnant to the pro.

visions of some such Act of Parliament, order, or regula-
tion, as aforesaid.

Colonial Law 4. No colonial law, passed with the concurrence of or
inconsistency assented to by the Governor of any colony, or to be here-
with instruc- a ft e r so passed or assented to, shall be, or be deemed to
have been, void or inoperative by reason only of any in-
structions with reference to such law. or the subject thereof,
which may have -been given to such Governor, by or on
behalf of Her Majesty, by any instrument other than the
letters patent or instrument authorizing such Governor to
concur in passing or to assent to laws for the peace, order,
and good government of such colony, even though such in-
structions may be referred to in such letters patent, or last-
mentioned instrument.

Colonial Leg- 5. Every colonial Legislature shall have, and be deemed
est^blish.’&c^ at a11 times to have had, full power within its jurisdiction
Courts of law. to establish courts of judicature, and to abolish and re-
constitute the same, and to alter the constitution thereof,
and to make provision for the administration of justice
Kepresenta- therein; and every representative Legislature shall, in re-
turemayal- spect to the colony under its jurisdiction, have, and be
Deemed at all times to have had, full power to make laws
respecting the constitution, powers, and procedure of such
Legislature; provided that such laws shall have been

APPENDIX. 629

passed in such manner and form as may from time to time
l>e required, by any Act of Parliament, letters patent, Order
in Council, or colonial law for the time being in force in
the colony.

6. The certificate of the clerk or other proper officer of a Certified co-
legislative body in any colony to the effect that the docu- be^denl! t0
ment to which it is attached is a true copy of any colonial *^J* tb *y are
law assented to by the Governor of such colony, or of any sed.

bill reserved for the signification of Her Majesty’s pleasure
by the said Governor, shall be prima facie evidence that the
document so certified is a true copy of such law or bill, and,
as the case may be, that such law has been duly and
properly passed and assented to, or that such bill has been
duly and properly passed and presented to the Governor ;
and any proclamation, purporting to be published by
authority of the Governor, in any newspaper in the colony deuce of as-
to which such law or bill shall relate, and signifying Her
Majesty’s disallowance of any such colonial law, or Her
Majesty’s assent to any such reserved bill as aforesaid,
shall be prima facie evidence of such disallowance or assent.
And whereas doubts are entertained respecting the vali-
dity of certain Acts enacted, or reputed to be enacted, by
the Legislature of South Australia : Be it further enacted
as follows :

7. All laws or reputed laws enacted or purporting to Certain Acts
have been enacted by the said Legislature, or by persons or

bodies of persons for the time being acting as such Legis- tralia to be
lature, which have received the assent of Her Majesty in V8
Council, or which have received the assent of the Governor
of the said Colony in the name and on behalf of Her
Majesty, shall be and be deemed to have been valid and
effectual from the date of such assent for all purposes what-
ever ; provided that nothing herein contained shall be
deemed to give effect to any law or reputed law which has
been disallowed by Her Majesty, or has expired, or has been
lawfully repealed, or to prevent the lawful disallowance or
repeal of any law.

APPENDIX II.

DRAFT OF LETTERS-PATENT ‘PASSED UNDER
THE GREAT SEAL OF THE UNITED KINGDOM,

Constituting the Office of Governor -General of the Dominion of

Canada.

Letters-Patent, }

Dated 5th October, 1878. }

VICTORIA, by the Grace of God, of the United Kingdom of Great Britain
and Ireland, Queen, Defender of the Faith, Empress of India ;
To all to whom these Presents shall come, Greeting :

WHEREAS We did, by certain Letters-Patent under the Great Seal of
Our United Kingdom of Great Britain and Ireland, bearing date at
Westminster the Twenty-second day of May, 1872, in the Thirty-fifth
Year of Our Reign, constitute and appoint Our Right Trusty and Right
Well-beloved Cousin and Councillor, Frederick Temple, Earl of Dufferin,
Knight of Our Most Illustrious Order of Saint Patrick, Knight Com-
mander of Our Most Honorable Order of the Bath (now Knight Grand
Cross of Our Most Distinguished Order of Saint Michael and Saint
George), to be Our Governor-General in and over Our Dominion of
Canada for and during Our will and pleasure :

And whereas by the 12th section of ” The British North America Act,
1867,” certain powers, authorities, and functions were declared to be
vested in the Governor-General :

And whereas We are desirous of making effectual and permanent
provision for the office of Governor-General in and over Our said
Dominion of Canada, without making new Letters-Patent on each demise
of the said Office :

Now know ye that We have revoked and determined, and by these
presents do revoke and determine, the said recited Letters-Patent of
the Twenty-second day of May, 1872, and every clause, article and thing
therein contained :

And further know ye that We, of our special grace, certain know-
ledge, and mere motion, have thought fit to constitute, order, and

APPENDIX. 631

declare, and do by these presents constitute, order, and declare that
there shall be a Governor- General (hereinafter called Our said Gover-
nor-General) in and over Our Dominion of Canada (hereinafter called
Our said Dominion), and that the person who shall fill the said
Office of the Governor-General shall be from time to time appointed
by Commission under our Sign-Manual and Signet. And we do hereby
authorize and command Our said Governor-General to do and execute,
in due manner, all things that shall belong to his said command, and to
the trust We have reposed in him, according to the several powers and
authorities granted or appointed him by virtue of ” The British North
America Act, 1867,” and of these present Letters-Patent, and of such Com-
mission as may be issued to him under Our Sign-Manual and Signet,
and according to such Instructions as may from time to time be given to
him, under Our Sign-Manual and Signet, or by Our Order in Our Privy
Council, or by us through one of Our Principal Secretaries of State, and
to such Laws as are or shall hereafter be in force in Our said Dominion.

II. And We do hereby authorize and empower Our said Governor-
General to keep and use the Great Seal of Our said Dominion for sealing
all things whatsoever that shall pass the said Great Seal.

III. And We do further authorize and empower Our said Governor-
General to constitute and appoint, in Our name and on Our behalf, all
such Judges, Commissioners, Justices of the Peace, and other necessary
Officers and Ministers of Our said Dominion, as may be lawfully con-
stituted or appointed by Us.

IV. And We do further authorize and empower Our said Governor-
General, so far as we lawfully may, upon sufficient cause to him appear-
ing, to remove from his office, or to suspend from the exercise of the
same, any person exercising any office within Our said Dominion, under
or by virtue of any Commission or Warrant granted, or which may be
granted, by Us in Our name or under Our authority.

V. And We do further authorize and empower Our said Governor-
General to exercise all powers lawfully belonging to Us in respect of the
summoning, proroguing, or dissolving the Parliament of Our said Do-
minion.

VI. And whereas by “The British North America Act, 18G7.” it is
amongst other things enacted, that it shall be lawful for Us, if We think,
fit, to authorize the Governor-General of Our Dominion of Canada to
appoint any person or persons, jointly or severally, to be his Deputy or
Deputies within any part or parts of Our said Dominion, and in that
capacity to exercise, during the pleasure of Our said Governor-General,
such of the powers, authorities, and functions of Our said Governor-
General as he may deem it necessary or expedient to assign to such
Deputy or Deputies, subject to any limitations or directions from time to
time expressed or given by Us : Now We do hereby authorize and em-

632 APPENDIX.

power Our said Governor-General, subject to such limitations and direc-
tions as aforesaid, to appoint any person or persons, jointly or severally,
to be his Deputy or Deputies within any part or parts of Our said
Dominion of Canada, and in that capacity to exercise, during his pleasure,
such of his powers, functions, and authorities as he may deem it neces-
sary or expedient to assign to him or them : Provided always, that the
appointment of such a Deputy or Deputies shall not affect the exercise
of any such power, authority or function by Our said Governor-General
in person.

VII. And We do hereby declare Our pleasure to be that, in the event
of the death, incapacity, removal, or absence of Our said Governor-
general out of Our said Dominion, all and every the powers and
authorities herein granted to him shall, until our further pleasure is
signified therein, be vested in such person as may be appointed by Us
under our Sign-Manual and Signet to be Our Lieutenant-Governor of
Our said Dominion ; or if there shall be no such Lieutenant-Governor in
Our said Dominion, then in such person or persons as may be appointed
by Us under our Sign-Manual and Signet to administer the Government
of the same ; and in case there shall be no person or persons within Our
said Dominion so appointed by Us, then in the Senior Officer for the time
being in command of our regular troops in our said Dominion : Pro-
vided that no such powers or authorities shall vest in such Lieutenant-
Governor, or such other person or persons, until he or they shall have
taken the oaths appointed to be taken by the Governor-General of Our
said Dominion, and in the manner provided by the Instructions accom-
panying these Our Letters-Patent.

VIII. And We do hereby require and command all Our Officers and
Ministers, Civil and Military, and all other the inhabitants of Our said
Dominion, to be obedient, aiding and assisting unto our said Governor-
General, or, in the event of his death, incapacity, or absence, to such
person or persons as may, from time to time, under the provisions of
these, Our Letters-Patent, administer the Government of Our said
Dominion.

IX. And We do hereby reserve to Ourselves, Our heirs and successors,
full power and authority from time to time to revoke, alter or amend
these Our Letters- Patent as to Us or them shall seem meet.

X. And We do further direct and enjoin that these Our Letters-Patent
shall be read and proclaimed at such place or places as Our said Gov-
ernor-General shall think fit within Our said Dominion of Canada.

In Witness whereof We have caused these our Letters to be made
Patent. Witness Ourself at Westminster, the Fifth day of October, in
the Forty-second Year of Our Keign.

By Warrant under the Queen’s Sign-Manual.

C. ROMILLY.

APPENDIX III.

DRAFT OF INSTRUCTIONS

Passed under the Royal Sign-Manual and Signet to the Governor-
General of the Dominion of Canada.

Dated 5th October, 1878.
VICTORIA R.

Instructions to Our Governor-General in and over Our Dominion of
Canada, or, in his absence, to Our Lieutenant-Governor or the Officer
for the time being administering the Government of Our said
Dominion.

Given at our Court at Balmoral, this Fifth day of October, 1878, in
the Forty-second year of Our Reign.

WHEREAS by certain Letters-Patent bearing even date herewith, We
have constituted, ordered, and declared that there shall be a Governor-
General (hereinafter called Our said Governor-General) in and over Our
Dominion of Canada (hereinafter called Our said Dominion), and We
have thereby authorized and commanded Our said Governor-General to
do and execute in due manner all things that shall belong to his said
command, and to the trust We have reposed in him, according to the
several powers and authorities granted or appointed him by virtue of the
said Letters-Patent, and of such Commission as may be issued to him
under Our Sign -Manual and Signet, and according to such Instructions
as may from time to time be given to him, under Our Sign-Manual and
Signet, or by Our Order in Our Privy Council, or by Us through One of
Our Principal Secretaries of State, and to such Laws as are or shall
hereafter be in force in Our said Dominion :

Now, therefore, We do, by these, Our Instructions, under Our Sign-
Manual and Signet, declare Our pleasure to be that Our said Governor-
General for the time being shall, with all due solemnity, cause Our
Commission, under Our Sign-Manual and Signet, appointing Our said
Governor-General for the time being, to be read and published in the
presence of the Chief Justice for the time being, or other Judge of the
Supreme Court of Our said Dominion, and of the members of the Privy
-Council in Our said Dominion :

634 APPENDIX.

And We do further declare Our pleasure to be that Our said Governor-
General, and every other Officer appointed to administer the Government
of Our said Dominion, shall take the Oath of Allegiance in the form
provided by an Act passed in the Session holden in the thirty-first and
thirty-second years of Our Reign, intituled : ” An Act to Amend the Law
relating to Promissory Oaths ;” and likewise that he or they shall take the-
usual Oath for the due execution of the Office of Our Governor- General in
and over Our said Dominion, and for the due and impartial administration
of justice ; which Oaths the said Chief Justice for the time being, of Our
said Dominion, or, in his absence, or in the event of his being otherwise
incapacitated, any Judge of the Supreme Court of Our said Dominion
shall, and he is hereby required to tender and administer unto him or
them.

II. And We do authorize and require Our said Governor-General
from time to time, by himself or by any other person to be authorized by
him in that behalf, to administer to all and to every persons or person
as he shall think fit, who shall hold any office or place of trust or profit
in Our said Dominion, the said Oath of Allegiance, together with such
other Oath or Oaths as may from time to time, be prescribed by any
Laws or Statutes in that behalf made and provided.

III. And We do require Our said Governor-General to communicate
forthwith to the Privy Council for Our said Dominion these Our Instruc-
tions, and likewise all such others from time to time as he shall find con-
venient for Our service to be imparted to them.

IV. Our said Governor- General is to take care that all laws assented
to by him in Our name, or reserved for the signification of Our pleasure
thereon, shall, when transmitted by him, be fairly abstracted in the
margins, and be accompanied, in such cases as may seem to him neces-
sary, with such explanatory observations as may be required to exhibit
the reasons and occasions for proposing such Laws ; and he shall also
transmit fair copies of the Journals and Minutes of the proceedings of
the Parliament of Our said Dominion, which he is to require from the
clerks, or other proper officers in that behalf, of the said Parliament.

V. And We do further authorize and empower Our said Governor-
General, as he shall see occasion, in Our name and on Our behalf, when
any crime has been committed for which the offender may be tried
within Our said Dominion, to grant a pardon to any accomplice not being
the actual perpetrator of such crime, who shall give such information as
shall lead to the conviction of the principal offender ; and further, to grant
to any offender convicted of any crime in any Court, or before any Judge,
Justice, or Magistrate, within Our said Dominion, a pardon, either free
or subject to lawful conditions, or any respite of the execution of the
sentence of any such offender, for such period as to Our said Governor-
General may seem fit, and to remit any fines, penalties, or forfeitures

APPENDIX. 635

which may become due and payable to Us. Provided always, that Our
said Governor- General shall not in any case, except where the offence has
been of a political nature, make it a condition of any pardon or re-
mission of sentence that the offender shall be banished from or shall
absent himself from Our said Dominion. And We do hereby direct and
enjoin that Our said Governor-General shall not pardon or reprieve any
such offender without first receiving in capital cases the advice of the
Privy Council for Our said Dominion, and in other cases the advice of
one, at least, of his Ministers; and in any case in which such pardon or
reprieve might directly affect the interests of Our Empire, or of any
country or place beyond the jurisdiction of the Government of Our said
Dominion, Our said Governor- General shall, before deciding as to either
pardon or reprieve, take those interests specially into his own personal
consideration in conjunction with such advice as aforesaid.

VI. And whereas great prejudice may happen to Our service and to*
the security of Our said Dominion by the absence of Our said Governor-
General, he shall not, upon any pretence whatever, quit Our said
Dominion without having first obtained leave from Us for so doing under
Our Sign-Manual and Signet, or through one of Our Principal Secretaries-
of State.

V.R.

APPENDIX IV.
QUEBEC CONFERENCE RESOLUTIONS, 1864.

1. The best interests and present and future prosperity of British
North America will be promoted by a federal union, under the Crown of
Great Britain, provided such union can be effected on principles just to
the several Provinces.

2. In the federation of the British North American Provinces, the
system of Government best adapted under existing circumstances to pro-
tect the diversified interests in the several Provinces, and secure efficiency,
harmony and permanency in the working of the union, would be a general
Government, charged with matters of common interest to the whole
country ; and Local Governments for each of the Canadas, and for the
Provinces of Nova Scotia, New Brunswick, and Prince Edward Island,
charged with the control of local matters in their respective sections ;
provision being made for the admission into the union, on equitable
terms, of Newfoundland, the North-West Territory, British Columbia,
and Vancouver.

3. In framing a constitution for the general Government, the Confer-
ence, with a view to the perpetuation of our connection with the mother
country, and to the promotion of the best interests of the people of these
Provinces, desire to follow the model of the British constitution so far
-as our circumstances will permit.

4. The Executive authority or government shall be vested in the
Sovereign of the United Kingdom of Great Britain and Ireland, and be
administered according to the well-understood principles of the British
constitution, by the Sovereign personally, or by the representative of the
Sovereign duly authorized.

5. The Sovereign or Representative of the Sovereign shall be Com-
mander in Chief of the land and naval militia forces.

6. There shall be a General Legislature or Parliament for the
federated Provinces, composed of a Legislative Council and a House of
Commons.

7. For the purpose of forming the Legislative Council, the federated
Provinces shall be considered as consisting of three divisions: 1st, Upper

APPENDIX. 637

Canada, 2nd, Lower Canada, 3rd, Nova Scotia, New Brunswick, and
Prince Edward Island; each division with an equal representation in
the Legislative Council.

8. Upper Canada shall be represented in the Legislative Council by
24 members, Lower Canada by 24 members, and the three maritime
Provinces by 24 members, of which Nova Scotia shall have 10, New
Brunswick 10, and Prince Edward Island 4 members.

9. The Colony of Newfoundland shall be entitled to enter the pro-
posed union, with a representation in the Legislative Council of 4
members.

10. The North- West Territory, British Columbia and Vancouver
shall be admitted into the union on such terms and conditions as the
Parliament of the federated Provinces shall deem equitable, and as shall
receive the assent of Her Majesty ; and, in the case of the Province of
British Columbia or Vancouver, as shall be agreed to by the Legislature
of such Province.

11. The members of the Legislative Council shall be appointed by the
Crown under the great seal of the general government, and shall hold
office during life ; if any Legislative Councillor shall, for two consecutive
sessions of Parliament, fail to give his attendance in the said Council,
his seat shall thereby become vacant.

12. The members of the Legislative Council shall be British subjects-
by birth or naturalization, of the full age of thirty years, shall possess a
continuous real property qualification of four thousand dollars over and
above all incumbrances, and shall be and continue worth that sum over
and above their debts and liabilities, but in the case of Newfoundland
and Prince Edward Island the property may be either real or personal.

13. If any question shall arise as to the qualification of a Legislative
Councillor, the same shall be determined by the Council.

14. The first selection of the members of the Legislative Council shall
be made, except as regards Prince Edward Island, from the Legislative
Councils of the various Provinces, so far as a sufficient number be
found qualified and willing to serve; such members shall be appointed
by the Crown at the recommendation of the general executive Govern-
ment, upon the nomination of the respective local Governments, and in
such nomination due regard shall be had to the claims of the members of
the Legislative Council of the opposition in each Province, so that all
political parties maj as nearly as possible be fairly represented.

15. The Speaker of the Legislative Council (unless otherwise provided
by Parliament) shall be appointed by the Crown from among the mem-
bers of the Legislative Council, and shall hold office during pleasure, and
shall only be entitled to a casting vote on an equality of votes.

APPENDIX.

16. Each of the twenty-four Legislative Councillors representing
Lower Canada in the Legislative Council of the general Legislature,
shall be appointed to represent one of the twenty-four electoral divisions
mentioned in Schedule A of chapter first of the Consolidated Statutes of
Canada, and such Councillor shall reside or possess his qualification in
the division he is appointed to represent.

17. The basis of representation in the House of Commons shall be
population, as determined by the official census every ten years ; and the
number of members at first shall be 194, distributed as follows :

Upper Canada 82

Lower Canada 65

Nova Scotia 19

New Brunswick 15

Newfoundland 8

Prince Edward Island 5

18. Until the official census of 1871 has been made up, there shall be
no change in the number of representatives from the several sections.

19. Immediately after the completion of the census of 1871, and im-
mediately after every decennial census thereafter, the representation
from each section in the House of Commons shall be readjusted on the
basis of population.

20. For the purpose of such re-adjustments, Lower Canada shall
always be assigned sixty-five members, and each of the other sections
shall at each re-adjustment receive, for the ten years then next succeed-
ing, the number of members to which it will be entitled on the same
ratio of representation to population as Lower Canada will enjoy accord-
ing to the census last taken by having sixty-five members.

21. No reduction shall be made in the number of members returned
by any section, unless its population shall have decreased, relatively to
the population of the whole Union, to the extent of five per centum.

22. In computing at each decennial period the number of members
to which each section is entitled, no fractional parts shall be considered,
unless when exceeding one-half the number entitling to a member, in
which case a member shall be given for each such fractional part.

23. The Legislature of each Province shall divide such Province into
the proper number of constituencies, and define the boundaries of each
of them.

24. The local Legislature of each Province may, from time to time,
alter the electoral districts for the purposes of representation in such
local Legislature, and distribute the representatives to which the Prov-
ince is entitled in such local Legislature, in any manner such Legislature
may see fit.

APPENDIX. 639

25. The number of members may at any time be increased by the
general Parliament, regard being had to the proportionate rights then
existing.

26. Until provisions are made by the General Parliament, all the laws
which, at the date of the proclamation constituting the Union, are in
force in the Provinces respectively, relating to the qualification and dis-
qualification of any person to be elected, or to sit or vote as a member
of the Assembly in the said Provinces respectively ; and relating to the
qualification or disqualification of voters and to the oaths to be taken
by voters, and to returning officers and their powers and duties, and
relating to the proceedings at elections, and to the period during which
such elections may be continued, and relating to the trial of controverted
elections, and the proceedings incident thereto, and relating to the
vacating of seats of members, and to the issuing and execution of new
writs, in case of any seat being vacated otherwise than by a dissolution,
shall respectively apply to elections of members to serve in the House
of Commons, for places situate in those Provinces respectively.

27. Every House of Commons shall continue for five years from the
<3ay of the return of the writs choosing the same, and no longer ; subject,
nevertheless, to be sooner prorogued or dissolved by the Governor.

28. There shall be a session of the general Parliament once, at least,
in every year, so that a period of twelve calendar months shall not inter-
vene between the last sitting of the general Parliament in one session,
and the first sitting thereof in the next session.

29. The general Parliament shall have power to make laws for the
peace, welfare, and good government of the federated provinces (saving
the sovereignty of England), and especially laws respecting the following
subjects :

*< (1) The public debt and property.

ot. (2) The regulation of trade and commerce.

(3) The imposition or regulation of duties of customs on imports and

exports, except on exports of timber, logs, masts, spars, deals
and sawn lumber from New Brunswick, and of coal and other
minerals from Nova Scotia.

(4) The imposition or regulation of excise duties.

<T^ (5) The raising of money by all or any other modes or systems of taxation. o (6) The borrowing of money on the public credit. *-{?) Postal service. Y. (8) Lines of steam or other ships, railways, canals and other works, connecting any two or more of the Provinces together or ex- tending beyond the limits of any Province. 640 APPENDIX. (9) Lines of steamships between the federated provinces and other countries. (10) Telegraphic communication and the incorporation of telegraphic companies. (11) All such works as shall, although lying wholly within any Pro- vince be specially declared by the Acts authorizing them fco be for the general advantage. j, (12) The census. , (13) Militia military and naval service and defence. ‘ (14) Beacons, buoys and light houses. (15) Navigation and shipping. / (16) Quarantine. 1 (17) Sea-coast and island fisheries. ‘ (18) Ferries between any province and a foreign country, or between any two provinces. > (19) Currency and coinage.

‘ (20) Banking incorporation of banks, and the issue of paper money.

‘ (21) Savings banks.

‘ (22) Weights and measures.

‘ (23) Bills of exchange and promissory notes.

‘ (24) Interest.

/(25) Legal tender.

(26) Bankruptcy and insolvency.

/ (27) Patents of invention and discovery.

, (28) Copyrights.

i (29) Indians and lands reserved for the Indians.

1 (30) Naturalization and aliens.

(31) Marriage and divorce.

1 (32) The criminal law, excepting the constitution of courts of criminal
jurisdiction, but; including the procedure in criminal matters.

i (33) Rendering uniform all or any of the laws relative to property and
civil rights in Upper Canada, Nova Scotia, New Brunswick,
Newfoundland, and Prince Edward Island, and rendering
uniform the procedure of all or any of the courts in these Pro-
vinces ; but any statute for this purpose shall have no force or
authority in any Province until sanctioned by the Legislature
thereof.

(34) The establishment of a general Court of Appeal for the federated

Provinces.
*(35) Immigration,
i (36) Agriculture.

APPENDIX. 641

*”” (37) And generally respecting all matters of a general character, not
specially and exclusively reserved for the local Governments
and Legislatures.

*, 30. The general Government and Parliament shall have all powers
necessary or proper for performing the obligations of the federated Pro-
vinces, as part of the British Empire, to foreign countries arising under
treaties between Great Britain and such countries.

t- 31. The general Parliament may also, from time to time, establish
additional courts, and the general Government may appoint judges and
-officers thereof, when the same shall appear necessary or for the public
advantage, in order to the due execution of the laws of Parliament.

i- 32. All courts, judges and officers of the several Provinces shall aid,
assist and obey the general Government in the exercise of its rights and
powers, and for such purposes shall be held to be courts, judges and
officers of the general Government.

t- 33. The general Government shall appoint and pay the judges of the
Superior Courts in each Province, and of the County Courts in Upper
Canada, and Parliament shall fix their salaries.

34. Until the consolidation of the laws of Upper Canada, New Bruns-
wick, Nova Scotia, Newfoundland and Prince Edward Island, the
judges of these Provinces appointed by the general Government shall be
selected from their respective bars.

35. The judges of the courts of Lower Canada shall be selected from
the bar of Lower Canada.

36. The judges of the Court of Admiralty now receiving salaries
shall be paid by the general Government.

37. The judges of the Superior Courts shall hold their offices during
good behaviour, and shall be removable only on the address of both
Houses of Parliament.

LOCAL GOVEBNMENT.

38. For each of the Provinces there shall be an executive officer,
styled the Lieutenant-Governor, who shall be appointed by the Governor-
General in Council, under the Great Seal of the federated Provinces,
during pleasure; such pleasure not to be exercised before the expiration
of the first five years, except for cause ; such cause to be communicated

“in writing to the Lieutenant-Governor immediately after the exercise of
the pleasure as aforesaid, and also by message to both Houses of Parlia-
ment, within the first week of the first session afterwards.

39. The Lieutenant-Governor of each Province shall be paid by the
.general Government.

CAN. CON. 41

642 APPENDIX.

40. In undertaking to pay the salaries of the Lieutenant-Governors^
the Conference does not desire to prejudice the claim of Prince Edward
Island upon the Imperial Government for the amount now paid for the-
salary of the Lieutenant -Governor thereof.

41. The local Government and Legislature of each Province shall be
constructed in such manner as the existing Legislature of such Province
shall provide.

42. The local Legislatures shall have power to alter or amend their
constitution from time to time.

43. The local Legislatures shall have power to make laws respecting
the following subjects :

\s (1) Direct taxation, and in New Brunswick the imposition of duties
on the export of timber, logs, masts, spars, deals and sawn
lumber ; and in Nova Scotia, on coals and other minerals,
u (2) Borrowing money on the credit of the Province.
* (3) The establishment and tenure of local offices, and the appoint-
ment and payment of local officers.
^(4) Agriculture.
i. (5) Immigration.

u(6) Education ; saving the rights and privileges which the Protestant
or Catholic minority in both Canadas may possess as to their-
denominational schools, at the time when the union goes into
operation.

/ (7) The sale and managementbf public lands excepting lands belong-
ing to the general Government.
(8) Sea-coast and inland fisheries.

C (9) The establishment, maintenance and management of peniten-
tiaries, and of public and reformatory prisons.
V (10) The establishment, maintenance and management of hospitals,

asylums, charities and eleemosynary institutions.
^(11) Municipal institutions.

V(12) Shop, saloon, tavern, auctioneer and other licenses.
v (13) Local works.
v(14) The incorporation of private or local companies, except such a&

relate to matters assigned to the general Parliament,
“f 15) Property and civil rights, excepting those portions thereof –

assigned to the general Parliament.

]/ (16) Inflicting punishment by fine, penalties, imprisonment or other-
wise, for the breach of laws passed in relation to any subject
within their jurisdiction.

APPENDIX. 643

” (17) The administration of justice, including^the constitution, main-
tenance Tand organization of the courts, both of civil and
criminal jurisdiction, and including also the procedure in civil
matters.

A (18) And generally all matters “of a private or local nature, not
assigned to the general Parliarnent.

44. The power of respiting, reprieving, and pardoning prisoners con-
victed of crimes, and of commuting and remitting of sentences in whole or
in part which belongs of right to the Crown, shall be administered by
the Lieutenant-Governor of each Province in Council, subject to any in-
structions he may, from time to time, receive from the general Govern-
ment, and subject to any provisions that may be made in this behalf by
the general Parliament.

MISCELLANEOUS.

45. In regard to all subjects over which jurisdiction belongs to both
the general and local Legislatures, the laws of the general Parliament
shall control and supersede those made by the local Legislature, and the
latter shall be void so far as they are repugnant to or inconsistent with,
the former.

46. Both the English and French languages may be employed in the
general Parliament and in its proceedings, and in the local Legislature of
Lower Canada, and also in the Federal courts, and in the courts of
Lower Canada.

47. No lands or property belonging to the general or local Govern-
ments shall be liable to taxation.

48. All bills for appropriating any part of the public revenue, or for
imposing any new tax or impost, shall originate in the House of Com-
mons or House of Assembly, as the case may be.

49. The House of Commons or House of Assembly shall not originate
or pass any vote, resolution, address or bill for the appropriation of any
part of the public revenue, or of any tax or impost to any purpose, not
first recommended by message of the Governor-General or the Lieuten-
ant-Governor, as the case may be, during the session in which such vote,
resolution, address or bill is passed.

50. Any bill of the general Parliament may be reserved in the usual
manner for Her Majesty’s assent, and any bill of the local Legislatures
may, in like manner, be reserved for the consideration of the Goyernor-
General.

51. Any bill passed by the general Parliament shall be subject to dis-
allowance by Her Majesty within two years, as in the case of bills passed
by the Legislatures of the said Provinces hitherto ; and, in like manner,,

644 APPENDIX.

any bill passed by a local Legislature shall be subject to disallowance by
the Governor-General within one year after the passing thereof.

52. The seat of Government of the federated Provinces shall be
Ottawa, subject to the Royal prerogative.

53. Subject to any future action of the respective local Governments,
the seat of the local Government in Upper Canada shall be Toronto : of
Lower Canada, Quebec ; and the seats of the local Governments in the
other Provinces shall be as at present.

PROPERTY AND LIABILITIES.

54. All stocks, cash, bankers’ balances and securities for money be-
longing to each Province at the time of the Union, except as hereinafter
mentioned, shall belong to the general Government.

55. The following public works and property of each Province shall
belong to the general Government, to wit :

(1) Canals.

(2) Public harbours.

(3) Light houses and piers.

(4) Steamboats, dredges and public vessels.

(5) River and lake improvements.

(6) Railway and railway stocks, mortgages and other debts due by

railway companies.

(7) Military roads.

(8) Custom houses, post offices and other public buildings, except

such as may be set aside by the general Government for the use
of the local Legislatures and Governments.

;(9) Property transferred by the Imperial Government and known as
ordnance property.

(10) Armories, drill sheds, military clothing and munitions of war ;

and
(11) Lands set apart for public purposes.

56. All lands, mines, minerals and royalties vested in Her Majesty in
the Provinces of Upper Canada, Lower Canada, Nova Scotia, New
Brunswick and Prince Edward Island, for the use of such Provinces,
shall belong to the local Government of the territory in which the same
are so situate ; subject to any trusts that may exist in respect to any
of such lands or to any interest of other persons in respect of the same.

57. All sums due from purchasers or lessees of such lands, mines or
minerals at the time of the Union, shall also belong to the local Govern-
ments.

APPENDIX. 645

58. All assets connected with such portions of the public debt of any
Province as are assumed by the local Governments shall also belong
to those Governments respectively.

59. The several Provinces shall retain all other public property
therein, subject to the right of the general Government to assume any
lands or public property required for fortifications or the defence^of the
country.

60. The general Government shall assume all the debts and liabilities
of each Province.

61. The debt of Canada, not specially assumed by Upper and Lower
Canada respectively, shall not exceed, at the time of the Union, $62,500,-
000 ; Nova Scotia shall enter the Union with a debt not exceeding
$8,000,000 ; and New Brunswick with a debt not exceeding $7,000,000,

62. In case Nova Scotia or New Brunswick do not incur liabilities
beyond those for which their Governments are now bound, and which
shall make their debts at the date of union less than $8,000,000 and
$7,000,000 respectively, they shall be entitled to interest at five per cent,
on the amount not so incurred, in like manner as is hereinafter pro-
vided for Newfoundland and Prince Edward Island; the foregoing
resolution being in no respect intended to limit the powers given to the
respective Governments of those Provinces, by Legislative authority,
but only to limit the maximum amount of charge to be assumed by the
general Government ; provided always, that the powers so conferred by the
respective Legislatures shall be exercised within five years from this
date, or the same shall then lapse.

63. Newfoundland and Prince Edward Island, not having incurred
debts equal to those of the other Provinces, shall be entitled to receive,,
by half-yearly payments, in advance, from the general Government, the
interest at five per cent, on the difference between the actual amount of
their respective debts at the time of the Union, and the average amount
of indebtedness per head^of the population of Canada, Nova Scotia and.
New Brunswick.

64. In consideration of the trasfer to the general Parliament of the;
powers of taxation, an annual grant in aid of each Province shall be-
made, equal to eighty cents per head of the population, as established by
the census of 1861 ; the population of Newfoundland being estimated at
130,000. Such aid shall be in full settlement of all future demands upon
the general Government for local purposes, and shall be paid half-yearly
in advance to each Province.

65. The position of New Brunswick being such as to entail large im-
mediate charges upon her local revenues, it is agreed that for the period
of ten years, from the time when the Union takes effect, an additional

646 APPENDIX.

allowance of $63,000 per annum shall be Jmade to that Province. But
that so long as the liability of that Province remains under $7,000,000, a
deduction equal to the interest of such deficiency shall be made from the
$63,000.

66. In consideration of the surrender to the general Government, by
Newfoundland, of all its rights in mines and minerals, and of all the un-
granted and unoccupied lands of the Crown, it is agreed that the sum of
$150,000 shall each year be paid to that Province, by semi-annual pay-
ments ; provided that that Colony shall retain the right of opening, con-
structing and controlling roads and bridges through any of the said
lands, subject to any laws which the general Parliament may pass i
respect of the same.

67. All engagements that may, before the Union, be entered into with
ihe Imperial Government for the defence of the country, shall be assumed
by the general Government.

68. The general Government shall secure, without delay, the com-
:pletion of the Intercolonial Railway from Riviere du Loup, through New
Brunswick, to Truro in Nova Scotia.

69. The communications with the North-Western Territory, and the
improvements required for the development of the trade of the great west
with the seaboard, are regarded by this conference as subjects of the
highest importance to the federated Provinces, and shall be prosecuted
.at the earliest possible period that the state of the finances will permit.

70. The sanction of the Imperial and local Parliaments shall be
sought for the union of the Provinces, on the principles adopted by the
Conference.

71. That Her Majesty the Queen be solicited to determine the rank
and name of the federated Provinces.

72. The proceedings of the Conference shall be authenticated by the
signatures of the delegates, and submitted by each delegation to its own
Government ; and the Chairman is authorized to submit a copy to the
Governor-General for transmission to the Secretary of State for the
Colonies.

INDEX.

GENERAL INDEX.

(NOTE. On pp. 204 and 205, we have placed side by side, for con-
venience of reference and comparison, sections 91 and 92 of
the B. N. A. Act, containing an enumeration of the various
subjects committed to the parliament of Canada and the-
provincial legislatures, respectively. By reference to the
head lines adopted throughout chapter XII. any given sub-
section of section 91 or 92 can be quickly found.)

A.

ADMINISTRATION OF JUSTICE ,S>* JUDICIAL SYSTEM

ADMINISTRATOR

of Dominion government, in absence, etc., of Governor-General, 258

(see Letters Patent in Appendix)

of Provincial government in absence, etc., of Lieut. -Governor, 321
(See DEPUTY.)

ADMISSION OF OTHER COLONIES OF B. N. A., 545-6
(See Part IV.)

AGRICULTURE. 512

ALIENS See NATURALIZATION AND ALIENS

APPOINTMENT TO OFFICE

powers of Governor- General in relation to, 165, 166-8
federal officers See OFFICES AND OFFICEBS
provincial ” ” ”

(See also the various offices.)

APPROPRIATION AND TAX BILLS
must originate in Commons, 298
on recommendation of Crown, 298
provincial legislatures, 341

‘650 IXDEX.

APPROPRIATION, POWER OF

importance of, in securing responsible government, 35, 37

results of colonial system, 37

concession of, to pre-Confederation provinces, 39, 40, 356, 525

” tenure-of -office ” question thereby solved, 38, 40, 435

of parliament of Canada over Cons. Rev. Fund, 517

of provincial legislatures over provincial, 524

ASSEMBLIES, EARLY See PRE-CONFEDERATION PROVINCES

ASSENT TO BILLS

of Parliament of Canada, 147, 299
of provincial legislatures, 341
contrary to instructions, 148

(See COLONIAL LAWS VALIDITY ACT)

ATTORNEY-GENERAL-

position of provincial, 311, 402

B.

B. N. A. ACT, 1867 See pp. 241-546

limitation of preamble to ” general ” government only, 3, 242

Dicey’s criticism of, 3, 172

constructivs clauses compared with ” Constitutional Acts ” for other

colonies same type, 52, 54

scheme of, could not have been effected, except by Act of Parlia-
ment, 242

truly federal, 43, 47, 245, 423
Division of the Field See chapter X.

for legislative purposes, fixes division for executive, 199

body of pre-existing laws divided, 200, 410, 535

exhaustive, 201, 345

line of division enforced by courts, 11, 193, 202

principles enunciated in earlier decisions of Supreme Court, 206

rejected by Privy Council, 207
certain general rules discussed, 210, 219

sections 91 and 92 to be read together, 210

other Imperial Acts in pan materia, 212, 357, 461

true nature of enactment to be considered, 212

possibility of power being abused, no reason for denying its

existence, 213, 386, 434
subjects in one aspect may fall within section 91, in another

within section 92 ; 213, 467, 484-5
concurrent powers, 214 See CONCURRENT POWERS.
presumption for validity, 21

INDEX. 651

B. N. A. ACT, 1867 Continued.

Quebec Resolutions how far to be utilized, 219
United States decisions how far useful, 220
(See FEE-CONFEDERATION PROVINCES, PROVINCIAL CONSTITUTIONS,
PARLIAMENT OF CANADA, etc., etc.)

BAGEHOT

on the fusion of legislative and executive departments in England, 15
on the House of Lords, 268

BICAMERAL FORM OF LEGISLATURE, 326

(See SENATE)

BILLS See ASSENT TO BILLS, RESERVED BILLS
BREWERS See LIQUOR TRAFFIC

BRITISH CONSTITUTION

compared with that of United States, 5, et seq.
federal idea, in Imperial aspect of, 5, 8, 250
upheld by ” Conventions,” 7
common to both United States and, 12
supremacy of law ” ” ” 12, 14

” literary theory ” of division of power_in, 14, 29
Bagehot combats, 15
embodied in United States system, 17
executive responsibility to parliament the essential feature of, 16

in Canada, 22
difference, in ihis respect in United States system, 12, 20

(See CABINET, DIVISION OF POWER, CONVENTIONS OF THE CONSTITU-
TION, FEDERALISM, RULE OF LAW, etc.)

BRITISH COLONY See COLONY

BRITISH COLUMBIA

order in Council admitting to Union, 604
provincial constitution, 612, 614,
English law in See ENGLAND, LAW OF

BRITISH GOVERNMENT See IMPERIAL EXECUTIVE AUTHORITY

BRITISH LAW See ENGLAND

BRITISH PARLIAMENT See IMPERIAL PARLIAMENT

C.

CABINET

in England, 15

connects legislative and executive departments, 15, 334

United States system, 12, 20

652 INDEX.

CABINET Continued.

British system in Canada, 23, 334

in the provinces, 50, 51, 334
in the pre-Confederation provinces, 41

(See PRIVY COUNCIL FOR CANADA, EXECUTIVE COUNCIL)

CANADA

constitution of, compared with British and United States, 2, 20
general view, 1
truly federal, 43, 47, 245, 423

similar in principle to that of : United Kingdom, 2, 21
(See B. N. A. ACT)

CANADA (Old)

severed by B. N. A. Act, 247
argument founded on clauses relating to, 46
legislative power of parliament of, 60, et seq.

statutory powers of governors, etc., vested in both Governor-
General and Lieut. -Governors of Ontario and Quebec, 256, 315
(See PRE-CONFEDEKATION PROVINCES)

CAPE BRETON, 27

CAPITALS See SEATS OF GOVERNMENT

CENSUS, 248

CHINESE Sec NATURALIZATION AND ALIENS

COLONY

federalism in colonial system, 5, 8, 250

primd facie British statutes not operative in, 7, 57, 185

(See COLONIAL LAWS VALIDITY ACT)

. comparison of Constitutional Acts for the colonies, 52, 54
results of our status as a, Part II., 54, et seq.
legislative power in a See COLONIAL LEGISLATIVE POWER

COLONIAL LAWS VALIDITY ACT, 1865 (28 & 29 Vic. c. 63 See

Act in Appendix)
canon as to extension of Acts of British Parliament to colonies, 7,

57, 186

“repugnancy” clauses, 59, 379
assent to Bills contrary to “instructions,” 148
power of colonial legislatures to alter constitution of legislature?

280, 327, 422, 614
legislate as to procedure, etc., ib.
proof of colonial laws, 195
earlier Acts along same line, 63, 64, 421

INDEX. 653

COLONIAL LEGISLATIVE POWER

supreme within limits of subjects and area, 177, et seq., 194

principle applicable to both Dominion and Provincial legisla-
tures, 181-3, 194, 201-2, 324

of parliament of Canada over N, W. Territories, 183, 347, 554-5
subject to sovereignty of England, 183-5, 192, 245
limitations in respect of subject-matter, 7, 74

military matters, 378-9

navigation, 381

copyright, 403

aliens, 406
territorial limits, 185, et seq.

Canadian authorities, 188

a question of jurisdiction, 193

for the determination of courts of law, 11, 193, 202
division of the field in Canada See B. N. A. ACT
in reference to ” prerogatives ” See PREROGATIVES

(See PARLIAMENT or CANADA, PROVINCIAL LEGISLATURES)

COLONIAL SYSTEM -See PRE-CONFEDERATION PROVINCES, TAXATION
COMMONS See HOUSE OF COMMONS

COMPANY

power of parliament of Canada in reference to incorporation of,
353, 449

(See NOTES TO B. N. A. ACT, s. 92, ss. 10 AND 11)
Dominion, how far subject to provincial law, 353, 453, et seq., 464

CONCURRENT POWERS

question discussed, 214-7, 467, 480, 484

in relation to insolvency legislation, 216, 392
liquor traffic, 216
banks, etc., 215
bills of lading, 375
agriculture and immigration, 512

CONTINUATION OF LAWS, ETC., EXISTING AT UNION, 200,
534, 553 See B. N. A. ACT

CONVENTIONS OF THE CONSTITUTION

federalism in colonial system, upheld by, 7

in relation to legislation by Imperial parliament for Canada, 66

executive responsibility to parliament of United King-
dom, 16
same principle in pre- Confederated provinces, 41

applies to Dominion executive, 42, 320
and to provincial executive, 51, 320
how far based on legal sanction, 16 (ri)

654 INDEX.

COURTS OF LAW

enforcement by, of legal limitations upon both legislative and

executive action, 11, 223

legal limitations upon Imperial executive-
authority, 11

legal limitations upon colonial legislative-
authority, 11, 193, 202

international comity as recognized by, 224-5
jurisdiction of, territorially and otherwise, 225
(See JUDICIAL SYSTEM OF CANADA)

CRIMINAL LAW, 407, 418

meaning of term in Canadian jurisprudence limited, 408, 478, et seq>
common law crimes assigned to Dominion parliament, 410
pre-Confederation laws, how divided, 410
“procedure,” 235, 415

difficult to distinguish from ” organization,” 416-8, 468
constitution of courts, 468

(See PENAL LAWS OF PROVINCES, JUDICIAL SYSTEM)

CROWN

of England, succession to, 244

power of Imperial parliament over, 134, 244
colonial legislature no power over, 184, 245

(See PREROGATIVES OF THE CROWN)

D.

DENOMINATIONAL SCHOOLS See SEPARATE SCHOOLS.

DEPUTY GOVERNOR-GENERAL, 258

Lieut. -Governor, power to appoint, 321
DICEY (Prof. A. V.)

his criticism of B. N. A. Act, 3

on the supremacy of parliament, 16
power of disallowance, 172
position of Colonial legislatures, 174 (n)

on federalism, 175

DIRECT TAXATION See B. N. A. Act, sec. 92, s-s. 2,
What is? 425, et seq.
provincial powers of taxation limited to, 431

(See LICENSES.)

DISALLOWANCE

of Acts of parliament of Canada, 146, et seq.
” conventional ” limits, 146, 174
provisions of B. N. A. Act, 147-9, 299

INDEX. 655

DIS ALLOWANCE- Continued.

of Acts of provincial legislatures, 171, 342

after lapse of year, nothing but Imp. Act can affect, 343

responsibility for, to Parliament 23

power of, not intended to obviate necessity for resort to-

courts, 172, 342. 397
no bearing on question of validity, ib.

DIVISION OF POWER

between legislative and executive departments, 14, et seq.
” literary theory ” as to, in England, 14, 29
Bagehot on, 15

embodied in United States system, 17
carried out in early government of colonies, 31
(See BKITISH CONSTITUTION, UNITED STATES CONSTITUTION)
under a federal system

expression criticized, 21, 45, 51, 257

DIVISION OF THE FIELD (chapter IX.)
in Canada

(See B. N. A. ACT, PARLIAMENT OF CANADA, PROVINCIAL LEGISLA-
TURES.

DROIT ADMINISTRATE- –
in France and Switzerland, 14

DOMINION EXECUTIVE 248, et teq.

responsibility to parliament for disallowance of provincial Acts, 2&
appointment and removal of Lieut. -Governors See LIEUT. -GOVERNOR
relations to Lieut. -Governors, 307-8, 309, 320 ”

(See CABINET, GOVERNOR-GENERAL, PRIVY COUNCIL FOR CANADA)

E.

EDUCATION 489, et seq.

ELECTIONS

pre-Confederation laws as to, continued, 284f335, 619
to House of Commons, 283, 291

power of Dominion parliament to legislate respecting, 289
Dominion and provincial systems dissevered, 286
voters at, 286

Revising officers, 286

not subject to supervision of provincial courts, 240, 286

(See JUDICIAL SYSTEM.)

right to vote, not a civil right within B. N. A. Act, s. 92 (s-s..
13), 286-7

INDEX.

ELECTIONS Continued.

controverted elections, trial of, 288

not part of “the administration of justice,” 287

transferred to courts, 288-290

not subject to review in P. C., 289
to provincial assemblies, 385

voters, 286

controverted elections, 288
to municipal councils, 445

controverted elections, provincial legislature may legislate as to,
445

EMPLOYERS’ LIABILITY ACTS

power of provincial legislature to pass, 375

ENGLAND, LAW OF

how far introduced into provinces, 75-128

N. W. Territories, 580-2
Manitoba, 597-601
British Columbia, 615-6

operative only in absence of Canadian legislation, 77
Nova Scotia decisions, 77-92

statutes creating charge in favor of Crown, 78

in curtailment of prerogative, 87
how colonial legislation affects the question, 88
certain statutes recognized without question, 90
Statute of Uses, but not of Enrolment, 90
Magna Charta, 90
Statute of Staples, 90
Partition Acts of Henry VIII., 90
Fraudulent Conveyances, 90
review of, 91
New Brunswick decisions, 92-94

Statute of Uses and Enrolment, 92

Mortmain, 93
other statutes, 93
review, 94
Ontario, 94-128

English law introduced by Canadian Enactment, 95, 96, 127, 128
difference between ” civil ” and ” criminal” law, 96-7, 122
certain Acts recognized without question, 97
statutes as to apprentices, 98

review, 100
certiorari, 100

Mortmain Acts, 101, et seq.
Marriage Acts, 1 16
review, 119

INDEX. 657

ENGLAND, LAW OF Continued.

Acts of local application in Eng, not introduced, 120
criminal laws, 122, et seq.

general review of Ontario cases, 126
as to prerogatives, 139

(See TABLE OF IMPERIAL STATUTES)

ESCHEATS, 528

EVIDENCE

taking of, for use before foreign courts, 346

powers of Dominion and provincial legislatures, 474-5

” EXCLUSIVE ”

term in section 91 B. N. A. Act, not intended as a renunciation by

Imperial parliament of its legislative supremacy, 67, 379
refers to relations between Dominion and provinces, 67, 350, 379
(See IMPERIAL PARLIAMENT)

EXECUTIVE AUTHORITY

subordinate to legislature, 12, 46, 137, 144
and legislative, co-extensive, ib., 199, 302, 437

contention to the contrary noticed, 45, 301
limitations upon, enforced by courts, 11, 202
in provinces, 45, 49-51, 301

(See LIEUT. -GOVERNOR)
unity of, throughout the Empire, 249, 303
in Canada vested in the Queen, 248
in reference to our judicial system, anomalous position of, 470

(See IMPERIAL EXECUTIVE AUTHORITY, DOMINION EXECUTIVE)

EXECUTIVE COUNCIL

Ontario and Quebec, 310

Nova Scotia and New Brunswick, 313

North-West Territories, 568

Manitoba, 591

British Columbia, 612, 614

Prince Edward Island, 623

liability of members of, 312

EXECUTIVE RESPONSIBILITY

to electorate through parliament, the British principle, 16 …
” ” ” Canadian ” 22

” directly, the United States principle, 17

lack of, to congress, of United States executive, 18
growth of principles, of in pre-confederated provinces, 29-40
CAN. CON. 42

658 INDEX.

EXECUTIVE RESPONSIBILITY Continued.

secured by concession of control of revenue, 55, 40, 356, 525
statutes relating to, 40
” ten ure-of -office,” despatches, etc., 40, 41

(See APPROPRIATION, BRITISH CONSTITUTION, CABINET, CONVENTIONS)

F.

FACTORY ACTS-

power of provincial legislature to pass, 875

FEDERALISM

common to both British and United States systems, 12
in British Imperial system, 5, et seq.

rests on ” conventions,” 7, 10, 250

growth of, 8
in United States system, the basis, 8, 43.

upheld by law, 7
in Canadian system, the basis, 43, 47, 245, 281, 423

involves continuation of parties tofoedus, 47, 241, 423

v. legislative union, 44 (see UNITARIAN)
opinion may vary as to position of dividing line, 44
full governmental power necessary for each division, 45-6

(See B. N. A. ACT)

FEDERAL OFFICERS , See OFFICES AND OFFICERS

FEDERAL COURTS -See JUDICIAL SYSTEM

FINANCIAL ARRANGEMENTS, 519, et seq., 530, 594, 607, 61

FRANCE –

droit administratif in, 14

FRANCHISE -See ELECTIONS

FREE TRADE

interprovincial, 523, 530

FRENCH LANGUAGE

in debates, etc., of parliament of Canada, 539

Quebec legislature, 539
in courts, 539
in Manitoba, 593
in N.-W. Territories, 579

INDEX. 659

G.

GAME LAW8

power of a provincial legislature to pass, 414, 480, 488

GOVERNOR-GENERAL chapter VIII.

powers of, defined and limited by commission, 150
no immunity from being impleaded, 152, 162
in English courts, 152-5, 160
in courts of his colony, 155, 162
civilly, 155-9
criminally, 160-2

letters patent constituting office, 162, ft scq. (see Appendix)
powers in relation to appointments to office, 165-6.
parliament, 165-168
pardon, 166
disallowance of provincial Acts, 342

(See DISALLOWANCE)
dual position of, 250
Acts under advice of Dominion cabinet in matters committed to

parliament of Canada, 250

powers in relation to Lieutenant-Governors, 251, 308, 320
not sole representative of the Queen in Canada, 254-5 (see LIEUTE-
NANT-GOVERNOR)

invested with all statutory powers of governors, etc., in pre-con-
federated provinces, so far as exerciseable in federal govern-
ment, 48, 256, 315

power of Dominion parliament to alter, etc., 257
salary of, 517

(See ADMINISTRATOR, DEPUTY, PREROGATIVES)

GREAT BRITAIN See BRITISH CONSTITUTION, ENGLAND, IMPERIAL
PARLIAMENT

H.

HARBOURS, 530

HOUSE OF COMMONS OF CANADA
constitution of, 282-300
membership, 282

representation of provinces in, 282, 294
redistribution, 294
electoral districts in each province, 297

660 INDEX.

HOUSE OF COMMONS OF CANADA Continued.

elections See ELECTIONS

speaker, 291 SPEAKER

quorum, 293 QUORUM

voting, 293 VOTING

duration of, 293

cannot be altered by Dominion parliament, 293
money votes must originate in, 298 See APPROPRIATION AND TAX

BILLS
(See PARLIAMENT OF CANADA)

HOUSE OF LORDS
functions of, 258

compared with United States senate, 258
senate of Canada, 268-271
(See SENATE)

I.

IMMIGRATION, 512

IMPERIAL EXECUTIVE AUTHORITY
in relation to Canada, limited, 11, 141-3, 253

disallowance of Dominion legislation, 145-9, 174
(See PREROGATIVES)

IMPERIAL PARLIAMENT

its dual nature, 7, 55

legislates, primd facie, for United Kingdom only, 7, 185
Acts of, do not primd facie extend to colonies, 7, 185
no legal limits to legislative power of, 11, 55, 186 See EXCLUSIVE
“conventional ” limits as to colonies, 7-9, 66, 74

(See COLONIAL LEGISLATIVE POWER)
colonial legislature cannot affect Acts of, of express application to

colony, 60, et seq.

repeal of Act by, repeals in colony, 69, et seq.

general legislation by, how far introduced into Canada See ENG-
LAND, LAW OF

distinction between, and Acts of express application, 58, 75
time limit, 58
when do Acts of, extend to a colony See COLONIAL LAWS VALIDITY

ACT
(See PREROGATIVES, PRIVILEGES)

IMPERIAL STATUTES See ENGLAND (LAW OF), IMPERIAL PARLIAMENT

INDEX. 661

IMPLIED POWEKS, 9, 221, 348

doctrine of, how far applicable in Canada, 348-9

IMPRISONMENT FOR DEBT, 394, 476

INDIGENT DEBTORS, 396, 476 See BANKRUPTCY AND INSOLVENCY,
B. N. A. Act, s. 91, s-s. 21

J.

JUDGES

appointment of, etc., 512, et seq. See JUDICIAL SYSTEM

JUDICIAL SYSTEM OF CANADA-See also COURTS

Canadian Courts, at times, practically administer foreign law, 224-5
courts enforce observance of dividing line between Dominion Par-
liament and provincial legislatures, 172, 223, 342
federal courts administer provincial law, and vice versd, 227, 230

power of Dominion parliament to establish, 229, 230,

384, 514

jurisdiction determined by line of division between
Dominion parliament and provincial legislatures,
229, 515

provincial courts no power to supervise, 240
provincial courts, pre-Confederation, continued, 227-9

jurisdiction of, does not depend on line of division
between Dominion parliament and provincial
legislatures, 230, 238, 470
power of provincial legislature to establish new,

238, 470
power of provincial legislature to appoint judicial

officers, 238-9, 470-1

territorial jurisdiction of courts, 225, et s?q.
vice admiralty courts, 227
duties may be imposed on courts, etc., in Canada by authority other

than that which created the court, 230
by Dominion parliament on vice-admiralty courts, 231, 384

on provincial courts, 232

by provincial legislature on federal judges, 232-4
scheme of B. N. A. Act illogical, 234, 468, 515
procedure an essential part of certain legislation, 235-7
maritime law, 236
patent law, 402
insolvency law, 237
election law, 237-8, 290
different meanings of term, 234-7

(See CRIMINAL LAW, PE.VAL LAWS OF PROVINCES, EVIDENCE)
JUSTICES OF THE PEACK See JUDICIAL SYSTEM

662 INDEX.

LANDS See PUBLIC LANDS
LAW See RULE OF LAW

LEGISLATIVE POWER

supreme over executive, 12, 137, 144

through financial necessities of executive, 29 See APPROPRIATION
both in British and United States systems, 14
and executive co-extensive, 12, 46, 137, 144, 437.
close connection in England, 15 See CABINET.
lack of sympathetic connection in United States, 14, 17, 334
limitations upon, enforced by courts, 11, 202 See COURTS OF LAW

in colonies, part of federal idea, 20

(See B. N. A. ACT, COLONIAL LEGISLATIVE POWER, EXECUTIVE)
AUTHORITY, PARLIAMENT OF CANADA, PROVINCIAL LEGISLATURES

LEGISLATIVE UNION See UNITARIAN, FEDERALISM

LEX ET CONSUETODO PARLIAMENTI See PRIVILEGES
not carried into colonies, 263

LIEUT.-GOVERNOR

a link in the chain of federal connection, 48

appointment of, 48, 300, 306

tenure of office, 251, 308

removal of, 251, 308-9

” conventional ” rule in Letellier case, 16.
what constitutes “cause,” 309

deputy, power to appoint, 321 See ADMINISTRATOR

invested with all statutory powers of governors, etc., prior to Con-
federation so far as exerciseable in provincial government,
48, 313-9

invested with all powers necessary to executive government of pro-
vince, 49, 303

.represents the Queen, 303-6, 325

for purposes of executive government, 303-4
legislation, 306, 325

how far he may act without ” advice,” 319-20

subject to ” instructions ” of Governor-General, 304-5,

relations of Dominion executive to, 307-8, 309, 320

Dominion parliament no power to legislate as to, 309, 419

his position compared with that of Governor-General, 303-5

LICENSES, 445 .See LIQUOR TRAFFIC
direct or indirect taxation ? 430, 447

INDEX. 663

LIQUOR TRAFFIC

cases reviewed, 359, et seq.

power of provincial legislature to prohibit, 3^aJ2

” LITERARY THEORY “See DIVISION OF POWER

LOWER CANADA See QUEBEC, FEE-CONFEDERATION PROVINCES

M.

MANITOBA

historical sketch as to admission, 549-53

MARRIAGE, 407, 459 (see ENGLAND, LAW OF)

MILITARY MATTERS See COLONIAL LEGISLATIVE POWER
supreme command of militia in the Queen, 259
committed to Dominion parliament, 378-9

MONEY VOTES See APPROPRIATION AND TAX BILLS
MORTMAIN ACTS See ENGLAND, LAW OF COMPANIES
MUNICIPAL INSTITUTIONS, 439-45

N.

NATURALIZATION AND ALIENS, 40(5
cases in British Columbia, 610

NEW BRUNSWICK

lagislative and executive authority in, continued by B. N. A. Act

50, 52, 313, 338

early constitution of, 27 See PRE-CONFEDERATION PROVINCES
introduction of English law into, 92-4 See ENGLAND, LAW OF

NORTH-WEST TERRITORIES

admission of, to Canada, historical sketch, 549, et seq.

constitutional changes, 555

present constitution, 562, et seq.

representation in parliament of Canada, 271, 283

legislative supremacy of parliament of Canada ovar, 183, 347, 554-5

introduction of English law into, 581 See ENGLAND, LAW OF

664 INDEX.

NOVA SCOTIA

early constitution of/ 26, 40 See PRE-CONFEDERATION PROVINCES
introduction of English law into, 77-92 See ENGLAND, LAW OF
legislative and executive authority in, continued by B. N. A. Act,
50, 52, 313, 338

NUISANCES

power of provincial legislature to prohibit, etc,, 361, 373, 487

o.

OATHS

to be taken by senators, ete., 532

OFFICES AND OFFICERS

federal, power of Dominion parliament over, 380

Governor-General in relation to, 165, 166, et seq.
provincial legislature to tax, 380, 436
provincial, power of provincial legislatures over, 435

can provincial officers be appointed to execute Dominion
legislation? 436

ONTARIO

l9gislature,’324-329

constitution, 324

membership, 328
executive council, 310
introduction of English*law into, 94-128 See ENGLAND, LAW OF

(See PRE- CONFEDERATION PROVINCES)

P.

*

PARLIAMENT

no special significance attached to term, 261

PARLIAMENT, SUPREMACY OF
Dicey on the, 16

principle fully operative in Canada, 22, 174 ()
(See LEGISLATIVE POWER)

PARLIAMENT OF CANADA (See note at beginning of this Index)
constitution of, 260, et seq.

cannot alter its own, 281, 422-3
summoning of, etc., 165, 168-70

(See HOUSE^OF COMMONS, SENATE)

INDEX. 665

PARLIAMENT OF CANADA Continued.

legislative power of, 204, 343, 420 (See note at beginning of Index)
may legislate as parliamentary procedure, 280 See COLONIAL

LAWS VALIDITY ACT

limited power of legislation as to “privileges,” 264 See PRIVI-
LEGES

limited to general legislation, 211, 351, 392, 464, 483
private bills, 352 See COMPANIES
residuum with, 344-5, 462, 485
” peace, order and good government,” 347, 484
over N. W. Territories, 183, 347, 554-5
disallowance of Acts of See DISALLOWANCE

PARLIAMENT OF UNITED KINGDOM See IMPERIAL PARLIAMENT

PARLIAMENTARY PROCEDURE See COLONIAL LAWS VALIDITY ACT,
PRIVILEGES

PENAL LAWS OF PROVINCES, 478, et seq.
diversity of nomenclature, 474

provincial legislature full power over procedure, 471-4
how distinguished from ” criminal ” law, 479
power to pass a general law, 481
appropriation of fines, 482
remission of penalties, etc., 482

POLICE MAGISTRATES

power to appoint, 238 See JUDICIAL SYSTEM

“POLICE” POWERS, 487

POWER OF APPROPRIATION See APPROPRIATION

POWER, DIVISION OF See DIVISION OF POWER

PRE-CONFEDERATION PROVINCES

Maritime provinces,

Nova Scotia, 26, 40

Prince Edward Island, 27

New Brunswick, 27

Cape Breton, 27

general treatment, 28, et seq., 40
Quebec, 27
(Old) Canada, 28, 34

general treatment, 34, 41
commissions of early governors, 20-32
government by prerogative in, 30 See PREROGATIVES
assemblies in, 26, et seq.

their functions, legislative, 30

f)66 INDEX.

PRE-CONFEDERATION PROVINCES Continued.
” responsible government ” in, growth of, 29-40

(See APPROPRIATION, POWER OF EXECUTIVE RESPONSIBILITY)
type of organization in, 47
what became of their constitutions, 43, et seq.

continuation of executive authority, 48-51, 318

legislative authority, 52, 338
division of assets, etc., 52-3, 510, et seq.
laws of England in See ENGLAND, LAWS OF

PREROGATIVES OF THE CROWN See chapter VI.
in connection with early government of colonies, 30
extent of operation in colonies, 137, et seq.

same rule applies to lex prerogative as to other branches of

English law, 139
effect of establishment of representative assembly in colonies, 30,

140, 242
power of colonial legislature over, 35, 139, 253

no power over certain, 253
one executive magistrate, the British idea, 130

invested by the common law with ” prerogatives,” 131, 134

limited by the common law, 134

no power to alter law, 131

protected in exercise of, by being a branch of parliament, 31,

132, 145
parliament may legislate as to, 132, 134, 135, 137, 253

secured control of, through power over finances, 31
express words or irresistible inference required to take away, 142
classification of, 134-6
in Canada, under B. N. A. Act, 142, 253
disallowance of colonial Acts, 145-9 See DISALLOWANCE
commissions of Oyer and Terminer, 259
Queen’s Counsel case, 143 (n), 317
escheats, 528
royalties, 529-30

PRESUMPTION

in favor of validity, 217

(See LEGISLATIVE POWER, EXECUTIVE RESPONSIBILITY)

PRINCE EDWARD ISLAND

early constitution, 27 See P-BK- CONFEDERATION PROVINCES
admission of, to Union, 617

PHI VATE BILLS .’See PARLIAMENT OF CANADA
PRIVILEGES

of parliament of Canada, 261, et seq.
B. N. A. Act amended, 262

INDEX. 667

PRIVILEGES -Continutd.

legislative power in relation to, limited, 264

(See PARLIAMENT OF CANADA)
of provincial legislatures, 326, et seq.

legislative power in relation to, plenary, 326-7
(See COLONIAL LAWS.VALIDITY ACT)

PRIVY COUNCIL FOR CANADA
constitution of, 50-1, 255
appointment of members, 167, ‘255

PROCEDURE -See JUDICIAL SYSTEM, CRIMINAL LAW, PENAL LAW, etc.
PROHIBITION See LIQUOR TRAFFIC

PROVINCIAL CONSTITUTIONS, 300-343

executive power, 300-324 See EXECUTIVE AUTHORITY

Lieutenant-Governors See LIEUTENANT-GOVERNOR

Executive Council -See EXECUTIVE COUNCIL, CABINET

“executive power case” (Ont.), 305-6
legislative power See PROVINCIAL LEGISLATURES

range of, determines range of executive, 199, 305 See LEGISLA-
TIVE POWER
provincial autonomy, 301

(See ONTARIO, QUEBEC, etc.)

PROVINCIAL LEGISLATURES^ note at beginning of this Index
disallowance of Acts of See DISALLOWANCE
powers of, 205, 420-512 See B. N. A. ACT, COLONIAL LEGISLATIVE

POWER

as to prerogatives See PREROGATIVES
as to “privileges,” etc. See PRIVILEGES, COLONIAL LAWS VALIDITY

ACT

to alter constitution, 420, et seq.
as to elections See ELECTIONS
duration of, 336

speaker, quorum, voting See these titles
(See ONTARIO, QUEBEC, ETC.)

PROVINCIAL OFFICES See OFFICES AND OFFICERS
PUBLIC HARBOURS, 530

PUBLIC LANDS

Indian reserves, 404
provincial legislative power, 437
assigned to provinces, 518, 528

Manitoba, 595, 601

British Columbia, 610

Prince Edward Island, 621
exempt from taxation, 524, 531

668 INDEX.

PUBLIC WORKS AND PROPERTY

certain, assigned to Dominion, 518, 530-1
remainder reserved to provinces, 521
exempt from taxation, 524, 531

Q.

QUALIFICATION See the various offices

QUEBEC

legislature, 329, et seq,
legislative council
constitution of, 329
qualification, vacancies, etc., 330-1
legislative assembly, 331
executive council, 310

QUEBEC RESOLUTIONS, 1864 See Appendix
indicate a federal union, 45
how far may they be utilized, 45, 219
as to re-distribution, 295

QUEEN, THE

executive head throughout the Empire, 130, 252, 304

in Canada, 248, 252, 304
dual position occupied b}’, 250
commander-in-chief, 289
a branch of the parliament of Canada, 261

provincial legislatures, 306, 325, 341

QUEEN’S COUNSEL-143 (.), 317

QUORUM

Senate of Canada, 279

House of Commons, 293

Quebec legislative council, 331

Ontario and Quebec legislative assemblies, 337

E.

RAILWAYS See COMPANY

RE-DISTRIBUTION

of representation in parliament of Canada, 294
Quebec resolutions, 29-“)

INDEX. 669

RE-DISTRIBUTION Continued.

different from defining electoral districts, 297
parliament of Canada full control of both, 297-8

RESEKVED BILLS, 149, 298, 300

REPUGNANCY

of colonial Acts to Imperial, 58, 379

(See COLONIAL LAWS VALIDITY ACT)
of ordinances of North-West assembly to Dominion legislation,

570, 582

RESIDUUM OF POWER See also DIVISION OF POWER
Canadian and United States systems contrasted, 44
expression criticized, 45

(See PARLIAMENT OF CANADA)

RESPONSIBLE GOVERNMENT See EXECUTIVE RESPONSIBILITY

REVENUE

power to appropriate See APPROPRIATION
provisions of B. N. A. Act, 516, et seq.

ROYALTIES, 518, 529-30

RULE OF LAW

common to both British and United States systems, 12, 14
(See PARLIAMENT, SUPREMACY OF)

SEATS OF GOVERNMENT
of Dominion, 260
of provinces, 323

SENATE OF CANADA, 268-81

compared with House of Lords and United States, 268-70
no judicial functions, 270

except as to status of senators, 278
no executive functions, 270

has failed to answer the end of its creation, 270-1
principle of equal representation in, abandoned, 271

Ontario, Quebec and Maritime provinces, 272,

peculiar provision as to Quebec, 271
qualification of senators, 273
summons to senators, 274

670 IXDEX.

SENATE OF CANADA Continued.

possible addition to, of -six members, 275

provision practically effete, 276
number of senators, 276

no maximum, 277
tenure of office, 239, 277
vacating of seat in, 277

question determined by senate, 278
speaker, quorum, voting See these titles
senators ineligible for election to Commons, 283

SEPARATE SCHOOLS, 489, et seq.

remedial legislation by parliament of Canada, 495, 508

SOVEREIGN See QUEEN, CROWN, PREROGATIVES

SPEAKER

of senate f Canada, 279

of Quebec executive council, 330

of House of Commons, 291

position compared with that of, in England and United S;
292

deputy speaker, 293
of provincial assemblies, 337

STATUTES .See Index to Statutes, p. xv
SUPREMACY OF LAW See RULE OF LAW

SUPREME COURT OF CANADA, 514, 516

provincial legislature no power to limit appeals to, 516

SWITZERLAND

droit aclmim strati/ in, 14

T.

TAXATION –

colonial system, 35, et seq.
result of, 37

(See APPROPRIATION.)
powers of Dominion and provincial legislatures limited to purpn-i-s

of those governments respectively, 377
parliament of Canada, 376
provincial legislatures, 424

public lands and property exempt from, 524, 531
(See DIRECT TAXATION.)

INDEX. 671

TENUKE OF OFFICE See APPROPRIATION, POWER OF, OFFICES

TERRITORIAL OPERATION OF STATUTES –
of Imperial parliament, 7, 185
of colonial legislatures, 185, et seq.

TERRITORIAL REVENUES

assigned to provinces, 518, 528

TREATY OBLIGATIONS

parliament of Canada may legislate for performing, 538
power limited by reason of Imperial legislation, 538-9

u.

UNIFORMITY-

provision for future, in laws of Ontario, Nova Scotia and New
Brunswick, 511

UNITED STATES

constitution of, compared with British and Canadian, 5, 20
distribution of legislative power in, as compared with Canada, 41-;>

220-1

power of congress to determine line of division, 9
how far decisions in courts of, may be utilized. 220-2
(See BRITISH CONSTITUTION, FEDERALISM)

UNITARIAN FORM OF GOVERNMENT, 13-
v. federal, 44, 444

V.

VALIDITY

presumption in favor of, 217

a principle of interpretation, 217

VOTERS See ELECTIONS

VOTING

in senate of Canada, 281
in House of Commons, 293
Quebec legislative council, 331
provincial assemblies, 337

VETO See DISALLOWANCE

672 INDEX.

w.

WORKMEN’S COMPENSATION FOR IN JURIES ]ACT-
how far federal railway subject to provisions of, 458

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