W.H.P. Clement, The Law of the Canadian Constitution (1892)


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Date: 1892-09-26
By: W.H.P. Clement
Citation: W.H.P. Clement, The Law of the Canadian Constitution (Toronto: The Carswell Co. Ltd., 1892).
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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, |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

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? ” (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 14 Geo. III. c. 83.

(
\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.
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
(
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. 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.

THE SOURCES OF OUR LAW. 108

”The question is then left to be determined whether the
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 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. (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 (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 (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 (} 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 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 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 . 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 (N.

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
<>liit<-.

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). 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 ().

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.

(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 (
^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 }.

(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); 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. <>

(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 () 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,-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(>).
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

(. 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 (‘< 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.” (), 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 (//
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/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.

to 12- (1) All powers, authorities, and

by Governor- functions (ii) which under any Act (iii) of

pn v v ce councii ^ e -P ar li alnen ^ of Great Britain, or of the
or n aYone oul l p ar ii amen t o f the United Kingdom of
Great Britain and Ireland, or of the
Legislature of Upper Canada, Lower
Canada, Canada, Nova Scotia, or New
Brunswick, are at the Union vested in or
exerciseable by the respective Governors
or Lieutenant-Governors of those Pro-
vinces, with the advice, or with the advice
and consent, of the respective Executive
Councils thereof, or in conjunction with
those Councils, or with any number of
members thereof, or by those Governors
or Lieutenant -Governors individually ,
shall, as far as the same continue in exist-
ence and capable of being exercised after
the Union in relation to the Government
of Canada, be vested in and exerciseable
by the Governor-General, with the advice
or with the advice and consent of or in
conjunction with the Queen’s Privy Coun-
cil for Canada, or any members thereof, or
by the Governor-General individually, as
the case requires, subject nevertheless

THE B. N. A. ACT SEC. 12. 257

(except ‘with respect to such as exist
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 Par-
liament 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 gov-
ernment of Ontario and Quebec, in the Lieutenant-Gover-
nors 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 ” pre-
rogatives of the crown.” The vast majority of the powers
exerciseable by the Governor-General are statutory powers,
that is to say, are vested in him under Canadian legislation.
See chapter VIII. ante, p. 16*3, 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 Consti-
tutional 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 he abolished or altered by the parliament of
Canada” This of course is limited to the abolition or alter-
ation of these powers, etc., so far as they are exerciseable in
CAN. CON. 17

258

THE B. N. A. ACT SECS. 13, 14.

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 govern-
ment 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,

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. ( 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” (<;-< 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 (//
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 func-
tions which under any Act of the Parlia-,Gm’e?n n o a rof

Ontario or

ment of Great Britain, or of the Parlia-

inent of the United Kingdom of Great lone(i) –

814 THE B. N. A. ACT SEC. 65

Britain and Ireland, or of the Legislature
of Upper Canada, Lower Canada, or Can-
ada, were or are before or at the Union
vested in or exerciseable by the respective
Governors or Lieutenant-Governors of
those Provinces, with the advice, or with
the advice and consent, of the respective
Executive Councils thereof, or in con-
junction with those Councils, or with any
number of members thereof, or by those
Governors or Lieutenant-Governors in-
dividually, shall, as far as the same are
capable of being exercised after the Union
in relation to the Government of Ontario
and Quebec respectively, be vested in and
shall or may be exercised by the Lieuten-
ant -Governor of Ontario and Quebec
respectively, with the advice or with the
advice and consent of or in conjunction
with the respective Executive Councils,
or any members thereof, or by the Lieu-
tenant-Governor individually, as the case
requires, subject neverthless (except with
respect to such as exist under Acts of the
Parliament of Great Britain, or of the
Parliament of the United Kingdom of
Great Britain and Ireland), to be abolished
or altered by the respective Legislatures
of Ontario and Quebec (ii).

(i) See notes to section 12. ante. p. 250 ; and see also chap-
ter . 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

THE B. N. A. ACT SEC. 65. 815

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 pro-
vide for the exercise of the powers, etc., which had thereto-
fore 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 pow
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 drafts-
man 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

(d) 1 O. R. 401.

316 THE P. N. A. ACT SEC. Co.

being exercised in relation to those governments respec-
tively.

The fact that the B. N. A. Act Joes effect a clear division
of the “sphere of authority,” seems not to have been appre-
ciated in Reginav. Amer (‘/Hslie// il j , respective
leytNldfi’.rrH of Oofm-io ,nl (Jnrh<'c" See notes to section 12, ante, p. 257 ; also to section 121), y>o.s7. The decision

THE B. N. A. ACT SEC. 06. oil)

in Dobie v. Temporalities Board, 7 App. Gas. 136, is
directly applicable to the interpretation of these two sec-
tions, 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 Domin-
ion 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 MS 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 Ooun-
oil 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- 1
General to appoint a Deputy Governor-General. TliLl
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 over-
look the rule of law that a colonial legislature has as full
power to alter and mould the lex prerogatives in the colony
as has the Imperial parliament in Great Britain ; but, on
the other hand,(the provisions of section 92, sub-section lU
must not be overlooked. See notes to that sub-section, whiclJ
expressly prohibits a provincial legislature from amend-
ing the provincial constitution ” as regards the office ofl
Lieutenant-Governor.” ‘ \-

Reference has already been made to Attorney-General
(Can.) v. Attorney-General (Ont.) (e), in which there aroso
for discussion the question of the power of a provincial
assembly to vest in the Lieutenant-Governor powers in con-
nection 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, unneces-
sary. A somewhat different question is suggested by this

(e) 20 O. R. 322 ; 19 O. A. R. 31.
CAN. CON. 21

322 THE B. N. A. ACT SEC. 67.

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-Goveriior
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 discus-
sion. 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 Lieuten-
ant-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. X. A. Act this would seem to be clear, that the executive
head the person carrying on the government of a prov-
ince is to be one link iu 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 (// ti’lmf-
ever title, lie /’* designated” and the express provision of
this section 67 was hardly needed to negative the power of
a Lieutenant-Governor to appoint a deputy to “cany on
the government” of the province during the absence, etc., of
the Lieutenant-Governor.

ei

THE B. N. A. ACT SEC. 68. 323

We have not seen the commission to the Deputy Lieu-
tenant-Governor, and it may possibly be that it is nothing
more than the appointment of a subordinate officer to per-
form 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 dele-
gation 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 */-/.
,-;/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, ” 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 iitntS’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.

( 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>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 (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 (