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OPINION OF a"TJiDa-E STEA.nDiyi:A.isr, OF THE YORK COUNTY COURT, Delivered in 1868 , upon the power of the Judiciary to determine the Constitutionality of a Law enacted by the Parliament of Canada or a Provincial Legislature, with his reasons therefor. Also — observations upon two cases involving the same question since determined by the Supreme Court of N. 6. A QUESTION touching the constitutionality and binding force of laws enacted^ by the Parliament of Canada and the Provincial Legislatures having been raised before the legal tribunals in soma of the Provinces, and an appli"- cation involving the legality of a law passed by the Legislature of this Pro- vince in the Session of 1868 in amendment of the Insolvent Confined Debtors law, having been made before me, and I having declined to take jurisdiction to determine a question of that nature, I now propose to state the reasons, in as brief a manner as the great importance of the subject will admit, which influenced my judgment upon that occasion, with a few general observations upon two cases involving the same question, which have since been determined by the Supreme Court of this Province. In stating my views I desire it to be understood, that I do so with the greatest possible respect for the admitted legal abihty of the Court, and also with a proper deference to the opinions of a number of eminent legal gentle- men at the Bar who differ from me. But speaking respectfully, as I have not yet heard any reason advanced sufficient to convince me that the conclu- sion at which I first arrived was erroneous, I am induced to state the prin- ciples and reasons which it still seems to me ought to obtain in the determination of this (to the people of the Dominion) most important question. It is necessary in order to a correct understanding of the nature of the question involved, first, to inquire in what character we are to view the British North America Act. Is it in the nature of a written constitution, adopted by the people of the Dominion as the foundation and basis of a new Government, by which several distinct bodies of Executive and Legislative authority are created, with Umited and exclusive powers granted to each, and each executing its authoiity independent of the other, providing also for a judiciary, with extraordinary powers, reserving to themselves all other powers and authority not expressly granted ? Is it in the nature of an Act of Parliament by which the loi^ established political rights and legislative authority of the people are swept away, and new and limited powers granted, and investing the judiciary with extraordinary powers, establishing a system of government different in its character from the British Parliamentary system ? Or shall we viow it as an Act of Parliament not granting any new political rights or legislative powers not previously possessed by the people, but rather as establishing an additional body of Executive and Legislative authority, having relation to that already existing through the negative legislative power of the Governor General, and distributing the legislative authority between the Dominion and Provincial Legislatures for the greater convenience of each in the work of legislating for the peace, good order and government of the Dominion and Provinces, leaving the judicial power as it was before the passing of tie Act, viz: an authority subordinate to the legislative, created for the purpose of interpreting and administering the laws ? It will scarcely be contended that the British North America Act should be regarded in the character stated in either of the first two propositions, but rather in that stated in the last proposition ; that is to say, as an Act of Par- liament passed for the purpose of reorganizing the several Provincial consti- tutions and governments then in existence, each possessed of complete and ample powers of legislation within the respective Provinces. Viewing it then in this light, it is necessary to examine what were the powers of the several Provincial Legislatures, prior to the Act coming into force, and whether the legislative was in any way subordinate to the judicial authority. The Parliament of Great Britain, consisting of the Queen, Lords and Com- mons, is the Supreme power of the nation, and whatever Parliament does no other power can undo. The Colonial Legislature, before Confederation, consisted of the Governor, Legislative Council and House of Assembly as the affirmative legislative authority within the colony, with the negative legis- lative power in the Sovereign, These four branches constituted the supreme legislative authority of the colony, possessed of the same power within the colony that the Parliament of Great Britain possessed within the United Kingdom, and whatever the legislative authority enacted, no other power within the colony could refuse to give effect to ; the negative legislative supremacy of the Sovereign being always presumed in the affirmative, until si^ified to the contrary. The judiciary of the colony could no more assume negative jurisdiction over the laws enacted by the Legislature than the judiciary of England, Ireland and Scotland could assume a negative jurisdiction oveJ' the laws enacted by Parliament. The Royal Commission to the Governor, prior to Confederation, and the Royal Instructions accompanying it, (an authority not to be questioned ), estab- lish this proposition too plainly to be controverted. The Royal Commission r « I authonzid the Lieutenant Governor, by and with the advice and consent of the Legislative Council and Assembly, to constitute and ordain laws, statutes and ordinances, for the public peace, welfare and good government of the colony and the people and inhabitants thereof, &c, which said laws, statutes, and ordinances were not to be repugnant, but as near as local circumstances would admit agreeable to the laws and stutnies of the kingdom. ♦ "^^5 f°yt^.I"^''^^''^io»^ expressly declare what the Imperial authorities in - tenaed by this statement of legislative powers contained in the Royal Com- mission, and the authority by which alone the Legislature was to be restrained in the exercise of such powers, and is expressed in the following words •— ' Whereas great mischief may arise, from passing Bills of an unusual and ex- traordinary nature and importance in our Plantations, which Bills remain in force there , from the tme ,J enacting until our pleasure be signified to the contrary we do will and require you, not to give your assent to any Bill or Bills of an unusual or extraordinary nature and importance wherein our Prerogative or the property of our subjects may be prejudiced, or the trade and shipmnB: of our Kingdom in any way affected, until you shall have transmitted unto us n-n"^ Tl n °'''' P^'icipal Secretaries of State the draft of such Bill or iiills, and shall have received Our Royal pleasure thereupon, unless you take care that there be a clause inserted therein suspending and defe ring the execution fnereoj until our pleasure shall be known concerning the same." Trade and Shipping were always regulated by laws enacted by the Imperial Parliament applying to and leaving force in all the colonies. Yet by this authority either Qt them might have been affected by laws enacted by the Colonial Legislatures ft nV^ ■', T ??^'' ''^ ^"'^''' *°^ Amyotts on Statutes "that all laws of the Colonial Legislature remain in force within the colony until disallowed by the Sovereign." The clause in the Royal Commission " which laws statute etc., are not to be repugnant but as near as local circumstances will mil agreeable to the laws and statutes of the Kingdom," is only directory, ana .'u. Colonia Legislature is to judge in the first place of the necessity according to the local circumstances of the Colony, subject to the approval or disapproval oi the sovereign. *^*^ There is no instance on record in any of the Provinces, that I am aware ot, where the Courts before Confederation assumed jurisdiction to declare the !iovereign mil and to disallow a law enacted by the Legislature. On the contrary the Courts in New Brunswick have recognized and acted under a law passed by the Legislature in 1850, which, after reciting a section of an Act ot Parliament, having force in this Province, in express words declared It to be repealed and of no force or effect within the Province. It did not occur to any one at that time, not even the law officers of the crown, by whom all colonial laws are carefully examined, that the legislature had no power to legislate in that way, that is, by expressly repealing an Act of Parliament so lar as it related to the Province. In the case of the Queen vs Kerr — determmed by the Supreme Court of this Province, the late Chief Justice Ohipman m deliyenng the judgement of the Courts, peaking of laws passed by the Provimial Lcgis aturc said : «« It Is a thing unheard of und*r British institution, or a judicial tribunal to question the validity, or binding ?oce to h/Z^^ Z \"^u" t^^ ''^''''^' ' ^'^ «° P-«^d goes^into force. LbTect uthorl V n?Th [ '^" Sovereign." This fourth branch of the legislative ™ n '?°"^ was incorporated into the colonial constitution for the Z xTnJrl '^''' f preventing mischief or injury to the general interest, of rnlon-Tf°'"-' w? unnecessary conflict with the laws of Parliament. But the Colonial Legislative authority has often and repeatedly been exerted to alter and repeal laws enact.^l by Parliament, so far as they related to the colony whenever It was deemed necessary in the interests of the colony. If the' cS X-n^nf ^°^ '° ^'' *'^" ''''' ^°"^^ '^ "° - '^ '^-^ - By the comity of nations, the laws of the country where a contract is made and upon which an action is brought in a foreignc ountry, govern the JuTcial oy me l^ourts in England, and if an action be brought in England uoon a contract made m any of the colonies, the law of that colony wWe the con- tract was made obtain., unless it be repugnant to some law of Pa Wn made in regard to such colony, then the comity is denied and the law of the Ltd"' Ztl. 1 '""". v^ '\' ""1 ' ^ '' ^- "I ' '' - -de void "nEng. It is well established that no statute of the Imperial Parliament extends to fZrT^ZT ut'' '' '' '""^'"''^y '' ^''^^''^- The Act 7 and 8 Wm III enacts that all laws, usages and customs which shall be in pactice in any of the Plantations repugnant to any law made or to be made inlhis kingSomM ,t! to thesa^dplantatzori shall be utterly void and of no effect. B^t it does not ay It shall be utterly void and of no effect within th: Plantation and therefore nower'of !?'."" "-'^ '^'' '^'' ^ " '""'''^'''^ ^^'^ '^' S^P^eme consitSal power of the Sovereign to enact laws with the advice of the Legislature to be m force within such colony. Nor was it ever supposed that If couM be in! ferred from the provisions of that Act that Parliament had invested the colonial legal tribunals, from the highest to the lowest, with juri SLt on over the Acts of the Supreme legislative authority of the colony, wh ch Dos^essed the power to constitute such courts and to add to and take' fTom thei fi^'s diction as might be considered necessary or expedient. their juns- It is laid down as the rule by the Commission of Legal Enquiry for the Colonies, that " no colonial law can be disallowed excepc by order o;^^7qu^)1 amal and when disallowed, and so signified by the mode pointed oi^Ttl^ Royal Instructions, it is void within the colony, as well as in EWfand Tht ba ed wtrdn t^T^^ fr'' "^T-"^^^^ *^^ ^^^^^ insTrulns^at Trih 7 / , .t^ *^^' ^^'"^^ P^^*-^^ '"^ ''^e ^''i'^nij remain in force th^re untdihe rleasu>e of the Crow,, is s^.nified to the contrary; the Governor bebe directed not to jjive his asspnf- fr^ »«,. r;ii« ^c "^ T '^"**'^°0'^ oemg natore or affecting trade andThireing' °' '° """"""' "' """"'i-'y fi i \5 in f/ 7° ^'« w^^'l'ff '"* ^^'!^'^ ^'^ ^''- '^" ^"'•^ " repugnant" as used m the 7 and 8, Wm. III. is explained, and it is therein declared that laws of a colony rq>ugnant to an Imperial Statute relating to the colony shall be Imerial Statute '''''''"' °^ '""'^ repugnancy, and shall be read subject to the The Legislature of Upper Canada, in the year 1839, passed an Act provid- ing for the sale and disposal ot the Clergy Reserves, making provision for the application of the money arising from the sale thereof. Numerous petitions froni the clergy and others interested were presented to the House of Lords m the osssion of Parliament 1840, praying that House to pass an Addrecs to Her Majesty that the Act of the Legislature be disallowed. Four questions were submitted by the House of Lords to the Judges of England, one of which was, whether the Act so passed was repugnant to the provisions of the 7 & 8, Cieo. IV, and consequently void, The Judges answered that it was, but did not say, neither were they asked to say, whether if the Queen did not de- Clare her dissent to the law passed by the Legislature of Upper Canada, but left it to I/* operation, it would be of binding force or void in that Province — Her Majesty disallowed the law and so declared it void wilhin th. Province ot Upper Canada. ' In an action brought in the Court of Queens Bench, England, against the late Governor of Jamaica, on account of excesses alleged to have been com- mitted by him in quelling the rebellion that took place in that colony during hiB administration, under the Act of Parliament 11 & 12, Wm. Ill which rendered him liable to an action in England for oppressive acts corimitted upon Her Majesty s subjects in the Colony while Governor thereof The Legislature of Jamaica, after the rebellion, had passed an Act of Indemnity relieving the Governor and all others from all actions brought against them tbr or on account of any act committed in putting down the rebellion. But it was contended on the part of the Plaintiff that the Act of Indemnity was repugnant to the Imperial Statute 11 and 12, Wm, !:i, giving the Plaintiff aright of action, in England, and must therefore I read by the Court subject to that Act, according to the provisions of 28 & 29 Vic, and not according to the rule of comity. It was never contended that the Act of indemnity was void in Jamaica because repugnant to the 11 and 12 Wm. Ill, or that it must be read by the Courts in Jamaica subject to the Imperial Act, had an action been brought there against any party engaged in quelling the rebellion. It was admitted that the Act would be an answer to any action brought in the Colony The Court decided, as did the Court of Exchequer Chamber on appeal from the Queen's Bench " that the Crown as well as Parliament Lad power to establish a Colonial Legislature with supreme Legislative powers within the Colony over all acts done or to be done within its territorial iuris- diction. That the comity extended to the law of foreign nations must be ex- tended to the law of the colony. But if a law passed by the Colonial Leeis- lature was repugnant to an Imperial Statute relating to that Colony, it mUst be read by the Courts in England by the 28 and 29 Vic, subject to each in any colonial court be taken by anneal tl ,h«^ r , • Z'^" '''^''" ^'■°"»^>* Privy Council, the controversy wHl KeterrnJn. 1 i Committee of the and the law of the colony wherj the ca.l f ?• "^'=°^^'"? »» 'he cotJvity, and not the law as in Engird "'''°" '"'""^'^ ^^" ^' ^PV^^^^ ^z^^j:^::,::::^^^^ ^^t -ythi„g i„ the Bntish in conjunction with the SoS„ a VI^^^^^ laws passed by either of the leSite bSlso^^^^^^^^^ ^'''''^^' ^^^^ nor be of binding force ? '^^'''^''''^ ^'''^'^' ^^ 'he Dominion shall or shall It is true that the Royal CommissJnn tr. tu n which the two Houses of the Sa ure werP ^^^^^''^^^"^ « colony, under legislative powers. The subject! nrelrTlo 'TT^"^' '°°^^''^^'^ S^^^^^l desirable the legislature shoSrna « any^lll J ''^ •' ^"^^ "°' considerable Instructions accLpanying the VorniLln '^L^The'Il^'h^Nith'; ^°^*' Act names the particular subjects exclu8>elv«««;r«^f "ntish North America bodies. Although the rule th h .ovrns the ^1 ^^ ' ^ ^^Si^i^Hye kw is that " what is exclusively gfventoVn;:^^^^^^^^^^ of ordinary statute hibited to all others." still withou^t express iurfsdicti;ni« ^%"^T'"^^ P^^' judiciary. it is not within their provf^e o d^^^^^^^^^ "P°" ^^e mg the constitutional exercise of thi authon>v R !u' "1""'*^°" ^"^°1^- legislativ^. power of the sovereign was preserved L / "' ^^' ""'«'''''' liament of Canada, transferring tie faTe noijT T ^^'"'^ ^^ '^'^'" over laws passed by the ProvinLl LgisktuJes I I / 1^°'"°°''. ^''''''^ jurisdiction cannot be taken by one fw It • • ''^^^'' P"°ciple, that upon another and a higher tribunalwhich ho ^'' '' '' 'Y'^'^y ^^^^^^^ed ing power to create a juaiciary It 7s nt t • J'f'^" ^^^'''''y ''' Po««es8- of a supreme sovereign'tribunTto the nv t IToTo^f ITY'^''' J"'^'"-' however competent it may be to determketC question^ ^"^^''^'^^^^ *"bunal, The British North America Act i' ^-ught to writ of Mandamus to do an official act wkhir Z^^\ ^' compelled by a must follow that bv a wrif nf i-u-!- , ^^' °^oial authority. If so it penalties not to^fc aTl^^nd^h'^^^^^^^^^^^^ undJrpaLVam the judiciary power of the United Ss though t' "*?^- ?' ?^ '^"« ^'^ declare a statute law void, have never P^^rlf^ possessmg jurisdiction to acts of the Chief Magistrate of IL Sta e Br^^^''"" ''^ " """' '^' °®'^*^ pressly conferred by the Constitution In^ ^ jurisdiction there is ex- the official acta of tb^ Chief MaSa^e Buf'Z- :f.^'"'i\J'^"sdiction over V^herent in the original and coSu^^al p'o^e 3'" '^ 1?"^' ^' a natural result, the Supreme JudiVJ^l T.,' K ^ • , J^^'^iary. If so, as a applicable to minicipalloTernZ^s^^^^^^^^^^ "'"^^ ^'^t'^^ ^°*^' ^°^ 'he'rule and executive authorit e^s Th^re ^n be no^Z^VT^'' ^""^ ^^^ ^^^i^l^^i-e diction to declare a law made bv anv m„nf • ^^ u^"''^" J^^^^^^^^^as juris- the law of the land, and That the Zr^r?^-'''???"^ '''^' i^ repugnant to over the official Acts of the chief mu„S o£": ^f ""^'^ ^^^^ jurisdiction ^-ny official act within their authTrkv 3 ,n ' ^"^jnay compel them to do not within their authorkv Now hlrP f P'""'"' '^'"^ ^'""^ ^^^"g ^^7 act why if the Courts can t^ke pfrt of^h s , "^^7 ^'""^ ''^^^'^ *° be assigned lative. they should notLkeTa ap^ i aSf ^^^^^ 'PP^^^^^'^ *° '^« 1^^- viuce an that ^el.LJ^Z.'^Z br^sTn^fSeSur ^''^■ sayf :. Tt'pTnp'fe? o^he^ dX^' ^- '^ ^^ •^''°?"^^°^ °^ ^^- United St... p -pnety ot the ac.eguuon of jurisdiction in cases arisirig undVr \' ng Eocle- ifter wards not at all I to a Bill es on the loubt in a '., autho- egislative ;ut of the at of the a, and so tions are sures are ng party ought to 3, by the aggested ed by a If so it ains and rue that ction to 5 official is ex- on over imed as so, as a :he rule islative 8 juris- nant to diction 1 to do iny act signed legis- ty and iciples con- I. States^ under n the constitution, rests on the obvious consideration that there ousht always to ^ some constitutional method of giving effect to constitutional provi^ons. What, for instance, would avail i^strictions on the authority of the State Legislatures without some constitutional mode of enforcing the observance of them. Ihe btates are by the Constitution prohibited from doin^ a variety of n^h^'' l.-wr \.u * , ,* ^° '^^'^ °^ «^°*« ^iS believe fhat such prohibitions would be scrupulously regarded without some effectual power in the government to restrain or correct the infractions of them. T/i/power must be ctfher a rhre.t negalive on ihe Sta'.e laws, or an authonty in the naiional counsto override such a^ shall minifestli, be in contravention to the Constitution ihe latter course was thought by the convention to be preferable to the for- mer : and it is without question by far the most acceptable to the States The same reasoning Che saysj applies with equal force to cases arising under the laws of the United States." The soundness of the reason here given for some power in the Constitution capable of restraining the several legislative bodies within the constitutional Hmits cannot be questi-ned. But the reason which influenced the members of the United State.- mvention when framing the Constitution, lor vesting t hit power in the judiciary, instead of the highest executive authority of the nation, is not applicable to 'the British Parliamentai-y constit tion, or to the British Colonial constitution. The preroc^ative power vestei m the Sovereign, hfis always been found sufficient to restrain the colo- nial legislatures within proper limits, and to prevent unnecessary conflict witH the laws of Parhament. In these days ot constitutional government the pre- rogative is only exercised in the best interests of the people. If under the British North America Act the Judiciary can assume this negative jurisdiction then we have two separate restraining authorities instead of one as heretofore! _ It will be observed that the reason assigned by Mr. Justice Story for vest- ing in the judiciary of the United States, the jurisdiction to declare laws enacted by either of the legislative bodies void, when in contravention of the constitution, was the absence of any negative power in the constitution. If there had been any such power, and no express jurisdiction conferred upon the judiciary, it is quite clear from his reasoning that the courts would not have assumed it. This is a power greater than the legislative power and cannot hi exercised by judicial supremacy. The question involved cannot be considered in the light of a conflict of laws, nor as a conflict between muni- cipal authorities. A conflict of laws arises only where there is found to exist in different countries, or in diff'erent localities of the same country, rules of law conflicting with each other upon the same subject, or where two statutes are found in conflict in prescribing a rule of law in respect to the same matter Now the British North America Act establishes no rule of law upon any of the subjects of legislation named iu the Act. It only declares what authority may enact a rule of law .n regard to such subjecis. And until two differ^ent laws are enacted concerning some one subject, there can be no conflict. The conflict raised ie. purely on the question of legislative authority between the Parliament of Canada and the Provincial Legislature, and not a conflict with 10 f^i'^^l^r:::'^^' - -^^ ^ iaw ana must bedete. finally enacted. ^ J^S'^'ative power; m cases of doubt before the lawL ^^^^^::^:^:^f'r^:^!^' the prerogative power in the coo-. pertainty the binding Lee of aUstaLpl' '^'°l"*t °^^^^^^ ^°' ^^^S with jurisdiction is to he^JrM%'T,t:it^^^^^ be if^a final may be enacted which in the iud^m Jf^? .u "°''^': ^^'^ instance, a law within the authority as declared fc P .^^^^Jf ^^e tribunal is entirely public accept it as law, r„drWdualI nves^^'^ ^°^^ ^™«"^^ Act: the jmportantinterests become in vdved-aC^^ ''f ^^^'^-^^ «nd ladmdual anxious to avoid a responsibil v /^ ^^V^^'T '' '^'''^ ^y some into question before the Courts anrnrl!^ * '^^^^i^'tr of the law is brought of the judges it is in contravention of trr^"^^ joid because in the opinfon ess to say that in such Hase ^at in^.L" °"i^ °^ '^' ^''' I* » ^eed- mdividuals with great public njSrL ZrlZT^l^"'^ °^^ °^ P'^P^r^X to 0. say that the best or only remeSv for sucH 1 ^-^ '• "« ^^^ffi^ient answer legislature keeping strictl/wW^L^thrdeTeeat^H "S!'^" *° ^' ^^""'^ ^^ the an impossibility Legislators like u^^^^^^^^ that is next to the question must be determined Cfere oninl 5 a"'? "" ™b'«' ^°d mmds may arrive at verv different coSsian,TT' *^ ^'^^' ""^ ^^«'«°t legi. ators and the Sovereign power mav be fn t ^°rrf' ^««ous then the provisions, they can only elercle fheTr L«^ - a''^ ""'^^'^ ^^^ constitutional th°r r.'^^ ^'l^ °P^"-" °f the Cour^ wiut i? 1^^^^^^^ '* " ^'"P-'^^e to the validity of their Act. '*^ *^*"^^ ^^^ to pronounce upon illutrsXThi::]^^^^ t^s province completely the inhabitants of that' town t issu^ bond^t " • ^""^ ' ^^" ^"*b°"-°^ Sr-f \-' the Houlton Branch Ra"!wa/ and /^^^^^^^ '''T^ »-d apply thf the inhabitants from time to time inrth^^' ^^tjiorized assessments upon mate redemption of the deb^ Thfbondfr- °' u *b^i°terest and the u^U° w-« ordered. A case was brought beJore the 'J^fn ^^^V''^"'^ ^"^ ^"^^^^^'^t tion for a writ of certiorari vv\th. J I Supreme Court, on an apnlica- that the law was .CS a^nf the^X^oif Th T""^".^°" '^^^^^^^ ^was void and ordered the writ to i! ue A« J^- ?°"'' determined that Dominion Parliament for a remed al StJ;,f.f ^PPhcation was made to the with the bond holders ParUrml/ f T *° ^"^^^^ the Town to keep faith •ne of which was thl^L's'^tlved fn fhT aT^^^ '°^^^"-« --- ^ withm the powers of the PrnvL.;!] t • V^ '^'" '° ^"^^tion was sntirelv Parliament 4tertaining a^ o^nl 75 ff^^^^^^^^^^ ablest legal minS preme Court. Now if thp S^ '^''^^'^^"t from that expressed bv our S., ^risdictlon, and the lat as deXTinTir' V"^' "^^-'^ - regtrdtothe" been done for which the S ut on an^^^^^^^^^^ oases must frequently occur if the SL "Vr' i -"^ °° «medy, and such of judicial investigation. The plerf-- .k T" '.° ^e made a subiect xne p.^ers ^.vcn ^ the Dominion Parliament to • » 11 levy taxes is confined to raising money for the general purposes of the Do- mimon. ihe power of levying taxes for a local purpose is exclusively assigned to the ProviDcial Legislatures. By the rule of construction adopted by the Court in the case referred to, any law enacted by Parliament in regard to local taxation must also be declared void. Another reason why the courts should not asssume this jurisdiction is to be taundin.the fact that it must often bring them in direct collision with the legislative authority, certainly a state of things not very desirable. In the case of the Queen w. Chandler, which arose under a law passed by the Legis- lature of this Province, in amendment of the Insolvent Confined Debtors Law, in which the Supreme Court granted a prohibition to Judge Chandler, foi- bidding him to discharge a confined debtor under the authority of the amended Act, tor the reason that it was ultra vires, and therefore void. The Lecrislature being determined to defeat the action of the Court, passed another law requir- !i°L u I . /°^ ^*°'®" to discharge from their custody all orisoners for debt who had been confined for a period of two years and upwards An Act was also passed whereby all officers were indemnified from all actions or suits on account of such discharge, or of any other act done in pursuance of the authority and direction of the first Act. An injunction was granted for- bidding the Sheriff of the City and County of St. John to discharge a debtor in his custody under the authority of that law. The Sheriff, however, did discharge the debtor m defiance of the injunction, and I think it was dis- covered thu. the Court was unable to enforce obedience or to effectually impose any penalties for the disobedience to its writ. It is hardly to be supposed that the legislature in such a case would be disposed to invest the Court with the necessary power of enforcement. Such a conflict of authority between the judiciary and the legislature ought never to occur. If it does occur It must cease whenever the latter chooses to assert its supremacy. If the egislature in the case of the Town of St. Stephen, should pass a law declaring the judgment of the Court void, and without force, (for which a precedent can be found m Imperial Legislation), and as in the case under the Insolvent Confined Debtors Law, pass an act of indemnity, and restrain the Court in the exercise of jurisdiction by injunction, or otherwise, and such law should receive the assent of the Governor General (of which there could be no doubt. His Jfixcellency having already sustained the authority of the legislature by the assent to the first law) the Court would be powerless to interpose and prevent the collection of the assessment, or the application of the money. Ihis IS a proceeding that ought never to be resorted to unle.'s the emergencv of the case justifies it. In this case the bon^olders have no right of appeal to the Judicial Committee of the Privy Council, the local authorities may not desire it, and the only Court of Appeal open by right to the creditors of the lown, 18 the Provincial Legislature. In this view then of the case any attempt on the part of the judiciary to restrain the legislative authority must tail lor any useful or practical purpose. Questions of great public importance must often arise in the legislation of tne Parliament of Canada, as well as in t^.o Provincial Legislatures, in which 12 determined by the lei? trih,?!»l •. '"'" ''^ ^ '^^^^^ °^ uncertainty unti - convenience, Ud it lay t?n the?. T"""^ •' ^f ^ ^° -"^-^ P^bHc in- legisbtivealwaysTdiSletrtribun.1 " .T°"^ ^'-^'^ T^ ''^'^ ' '^' comroi oy^the LSir^nTrcom "^ ')' J"f^V^^^ powe/exerciL's a (tliough it may be rilht\ i;M )? i, °, °^ ^'^^hority occurs, the former stated; and Zk was fthe Uni^pV^.^'^K '^ '° ^^^^ ^^ ^" ^^^ ^^«« I have CVart in regard To the duties to h. 7 ^"'ZT ^r^'''' '""'^ '^' Supreme Courts. Is'irwse then unir ^' ^''^T'^ \'^^ Judges in the Circuit jurisdiction oyeTthX^^^^^^^^ '^' judiciary to assume Wish North TmeriL Act trnr^^^^^ the Dominion, especially as the the legislative tTy capfwe of r^I^ f ' "'" "t'^^-'J^ ""^^^^'^ independent of monsTor, to adop^ th^WuaJeS rS^f ?'V''nu" '^'' ^-^^^^^tional pro- Sovereign a lemslative Lw.fZ- . Y "'^''"P^^P"^'"' '^ '^^^'"^^ '° the bpdie8in^^.A'|^a^;/;T:;^^^^^^^^^ ''^^^ °^ the legislative t&e juaiciHry to dSe a W v 'A ^ T'^^''' ^^^"^"^'««- Jurisdiction in tlie Britishiorfh Iterica Aa his IZ "^{.t ^"'""^^ "P°" ^^^ ^^^^y *hat Dominion to the cWac er anS pIV'^ f '^r '''^'''^"^^ legislatures of the «• t^e Superior CoureantaLtZ ?^ ?'^d^"^7„"^unicipal governments. tM all inferior court^rsttaL^^a^^^^^ '' ^"" •^^" ^ '"'-^"^^ °f ^°»"« fprce of every leZlatiractmJhK ^^ ^^- constitutionality and binding the Peace ex^erclng cTvirc^r^^mtnal^ question before a Justice !i Judges of the Supefior CourN wn K J""i'^^^°^' '"^"d the Justice like the judgement wheSTL^e^^^^^^^^^^ determine according to his or whether it is beyond thaf n„.K^ v a , ^f ^"^ive legislative authority, W unseemi; inTju ^icl of X^^^ so «W«j./, M It would appeJ; legislative authority, voTd but f the Lw T *^'t''^ ! ^r' '^^^^^'^ ^y the j:&diction,eV«,.,,^^r.;/b c^y tlZjrtv'"^- '^' ''''''' ^^^^ *^i« in a J-ustice of the Peace tihgwha? hroathrfoffi? ^'""° --/ ""-emly decide what the law is apcn-ST I- I •/ ^^''^ requires of him, viz: iHe Supreme CW^lr • ^ his best judgement, than in the Judges of ParhSt TuteS sotTeia^^^^^ ""^^ ^^ "^>' ^^ *»^'^^ *^^ I-Peria 0/ Canada and of tLp?oy1ShT.'f ?'"'"' ''^ '"'^ P°^''* °^ '^' Parliament powers subordinatlL the uH^^^^^^^^ ?' '° '""^^^ *^^ ^^^^"^^ °f their S^the legal tZnals of thr Do -^ k^' IT' °' *^^ ^^^^est in authority advanced! nor have I been abETS-^"' ^"' ^ ^'^'^ "°^ ^^^ ^^'-^''^ ^ reason assumption can be bounded. '' '^^ '"'^^^^"^ "^^^^ ^^^^^'^^^ ^'^^h an i- i^^ "_°l^ "^^'^ *^ ^^^^^''^ anything that might have the ^npe.ranr-^ of -d''cule |^«i=.u,.nga great question like this; but I cannot fc^LarTayinglttt an 13 does not tend to elevate the character of the Provincial Legislature to hear Uunsel learned m the law arguing before a legal tribunal upon the constitu- tionality of a permissive liquor license law passed by the Provincial Legisla- ture, urging upon the court the profound argument, " that to prohibit the granting of a hcense to a country tavern, to sell liquor within the municipal authoniy, interferes with the regulations of trade and commerce, the right to export and to import, to buy and sell, in the foreign market ; that it affected the general revenues of the Dominion and robbed the government of Canada of Its just dues, That to impose a pecuniary penalty for selling liquor without « license, and imprisonment for its non-payment when imposed, was making the offence of so selling in a legal sense a criminal act under the term Crimi- nal Law in the British North America Act, and therefore void." Truly weighty arguments to advance upon such a question, apparently forgetting tnat all trade and barter within the Province must necessarily be governed by the laws relating to pioperty and civil rights, and that the only principle in- volved in such a law is the civil right of the subject to sell within the muni- cipal jurisdiction ; a civil right the most im'portant of all tights, and forgettincr also the sound principle that the greater right must never be merged iu the mmor right. If the two rights are inseparable, the minor must merge in the greater, which the Provincial Legislature has. Such occasions lead one to imagine that the Provincial Legislature is reduced to a mere Parochial Gov- ernment, instituted for the sole purpose of regulating the sale of int oxicating liquors and hke subjects within the limits of its Parochial Authority, and with very doubtful powers for even that. The Dominion Parliament is supposed to pass no law except necessary in the general interests of the Dominion and of like effect in all the Provinces except m a few instances in the case of Quebec. There ought, therefore, to be no arbitrary rule laid down by which any desired alteration in the laws of any Province could not be effected by its legislature, though such alteration in the opinion of some legal minds encroached upon the powers delegated to gie Parliament of Canada, if, in the opinion of the tribunal invested by the Wntish North America Act with the negative jurisdiction, such alteration did not infringe upon the powers so delegated. It experience should subsequently prove that the nature of any such alteration had been misapprehended, it would be in the power of either legislative body to correct the error, as was done m the case of a law passed by the legislature of this Province in regard to the Central Bank, which being lound to conflict with the authority assigned to Parhament was repealed at^he next session of the legislature. Where a Bill is passed by the Legislative Council and House of Assembly, it is the duty of the Lieutenant Governor to declare that he assents thereto, or that he witholds his assent, according to his discretion, subject to the provisions of the British JNorth America Act, that is as stated in Sections 91 and 92 He is required first to determine, which he does with the aid of the Attorney Gen- ral, whether the Bill so presented for his assent is in contravention of the authonty as declared in the two sections named. If so his duty is plain 14 either to declare his dissent or reserve it for th. • j • Genera . When a Bill so reserveTor aLt. ^^^^^^^^ the Governor General, he also is roquired fn/nr.? 7 1 *° ^' presented to the Governor doe, wieh .he aid of thrMTitTjtioe'L&V"' "''7 '■'"• ^^' m hks manner according to his discretion »n^-.u'^ ^'"'"°'' ""d determines h.8 dissent. In the lansua^of S T r -?u-*™"'' *"'«'' " declares assented to and duly enfcte'd ft „„r ■ ■'"'T Chipman, when a Bill i, ,„ and the legal tribunals a fboundTrirff'?'^ J"'" '""">' -""^ '" "."«. words of the Act as it was before Confrd. f .'"• " "■ *»»<>»ed (by the sage to the legislature, if i„ session or bt.°°^' • """' ^' ^^nMod by Ves! to be null after ,/« ,/ ' of,^kli^i7 ^ P'o^'^'Won, and the Act is deckr/d wftb ?i! '■pn,'""' ''°"" i° ">" Royal In tructrns * ll '"""P'"»'i''g i-«o the w«h the B,lls passed by the Senate and H™. fn" """^ ""'" '» adopted General acting with the aid of "he MM., f,"*^ Commons, the Governor gnant Governor and the lotdg^, XtJ l"'T.V'"f "'' °' *^ J^'"" Crown, and the Queen's Privy CouMilT ns'ead oLV"" '"" °«'^''™ "^ '>>e render valid^t l^'^iZ-^lZjTlr Tr'F^^^"^^ legislative jurisdiction The office „d„urt' °' T-d'"? "r nJ^^gZ determme what is within the powers conferrM ^ '^^ ^'i^"^ power is to this jurisdiction in the Sovereign md n„.'^ ^"'^ ""' •*« having placed « the proposition does n^a^rL By Ih^r °?T'- ^ «"^'''''" i"S affirmed to be within the authoritv ,Ia T°' ""= '""' « declared and Act or invested with iurisdta^n ,?' ''° ?*" """""^l « created bvtEl It.ia wholly a q-stiofo ttwa.L':rtWv' ".T'"^'^ "' 'hat dedii™ the country should arisc^id f^Tr wLicVn"o T'm"" '^«'''''"'^ P"""" of tainty, confusion and injury would rlsuTt "^ " «°°''' •"" ""S" ""oer- a .njga^j^ri™ :il*;«rr ttr ' --^ -' »--<> ^y Pamament with will over laws passed by the L„L° , ^"'T^ "^ exercising an ibitrarv consistent to su'pposo thJtXXiniTet-'" '"l"'^'- I'«oldS each legislative body. Parliament w^^M^ f'" ^^<^'>»sive authority uDon might be intended that anv aM clll l-^' ""^ "'"'«'• Power by whicH : trarily defeated. It is mucV mo^M^o^ t" "°'' "J""^'^ ™"'d t arb =/."h^Xol°r<;;;Si£^^^^^^^ --.declared ,y .he'^™i:tiS;:ih:—i-^^^^ -..«liJlltfJ,W»-,S,^_ 15 or declaring their dissent, and thereby settle all doubt and finally determine that question. It is not the personal will of the Sovereign or of the Governor Gyneral that they are authorized by the Act to signify. It is the sovereign will of the people declared by express authority of Parliament, and when so declared it must remain until Imperial enactment, or the legislative authority within the Dominion, chooses to alter it. It is said that the sections of the British North America Act relating to the allowance and disallowance of Bills only apply to such as the legislative body is empowered to pass. But this does not affect the argument.' It is still a question of legislative jurisdiction which the negative legislative power, as before stated, is_ authorized to determine. If the Act had not preserved this power the judiciary could not assume jurisdiction to say what was or was not wiihin the legislative authority, and to declare void a law which in the opinion of the Judges was ultra vires. The British North America Act is not declared to be the supreme law within the Dominion, not to be changed or altered except by the authority which enacted it. It is as before stated like all other statutes relating to the colonies subject to alteration in so far as it reh;tes to the Dominion and the government thereof by the legislative authority of the Dominion, restrained only by the prerogative power. It is a question of a political nature, growing out of a conflict between %islative authorities, and therefore not within the sphere of ordinary judicial inquiry or judicial control. Assuming for the sake of argument that if Parliament intended by the use of the word " exclusive" in the ninety first and ninety second sections of the Act, that all laws passed by either legislative body which in any way encroached upon the subjects of legislation so exclusively assigned to the other should be void, the legal tribunals would be called upon to ascertain and declare what law was void and what valid. Let us see whether we can be justified in implying such an intention in the absence of any express declaration to that effect. If that was the intention of Parliament the general rule of law which governs the courts in such cases is that '« when exclusive authority is given to one person to do an act it cannot be executed by another," and when the same law confers exclusive authority upon one person to do a particular act and upon another person authority to do some other act, each is confined to the execution of his own authority, and cannot, as incident thereto, execute anv part of the authority so exclusively given to the other. There is another rule that where a law directs a thing to be done in a particular manner, the direction must be implicitly followed. To this rule, however, there are some excep- tions. For instance, if the law relates to an authority already held and ex- ercised, and is only declaratory of another mode of executing some of such powers, any act done though not in strict conformity with the direction of the law, would not be void unless so expressly declared, or some strong negative words are used that necessarily render it void. The word " exclusive" in a law only declaratory of Lhe authority is not sufficient. But there is another reason why the word "exclusive" does not render a law void because ultra vires. Parliament has expressly stated for what purpose the word is used. In 16 the ninety.first section it is stated, " and for greater certainty, but not so as to restrict * * * it is hereby declared that the exclusive authority of the Parliament of Canada extends etc., etc." The word is not therefori used ior the purpose of rendering a law void not enacted strictly within the letter of the authority, nor in the vain hope of securing absolute certainty, but to enable each legislative body to ascertain with a greater degree ofcerlaimu, what may or may not be fairly and reasonably within its authority — 55urely It is not used for the purpose of rendering the binding force of all law uncertain. Ihe unavoidable uncertainty in the interpretation of the law is enough, we should not unnecessarily add thereto. The last named rule then IS the one to be applied in the construction of the British North America Act. It IS evident that Parliament did not intend that all laws should be void not enacted strictly within the authority conferred, for the reason that in the subjects assigned to the Parliament of Canada, such only were selected in regard to which a uniformity of law was deemed requisite. But if the ninety- first and ninety second sections of the Act are construed according to the two first named rules, it must follow that in regard to many of the subiecta assigned to Parliament no uniform law can Lj enacted. In order to do so the authority must be exercised in con;unction with some of the powers expressly assigned to the Provincial Legislatures. In regard to ''Bank- ruptcy and Insolvency" t*e Dominion Parliament could not exercise authority over " Property and civil rights" as incident to the enactment of a uniform law upon the former subject, the latter being exclusively assigned to the Provincial Legislatures. It would be compelled to confine legislation upon that subject to declaring what persons should be subject to the Bankrupt and Insolvent laws, what acts by such persons should be deemed acts of Bank- ruptcy, and what acts by bankrupt or insolvent debtors should be deemed cri- minal, leaving the respective Provincial Legislatures to deal with the liberty of the person and subsequently acquired property of a Bankrupt whose estate had been subjected to compulsory liquidation by the law of Parliament. The power to make laws relating to Bankruptcy and Insolvency cannot be construed into aft authority to take away the right of a creditor who is neither Bankrupt or In- solvent, to pursue his remedy to recover his debt against either the person of his Bankrupt debtor or his future assets. What may be taken as incident to any subject under the last clause of the nineiy-first section of the Act is a question thai would necessarily lead to great diversity of opinion and endless legal con^ fiict, if It be left subject to judicial inquiry. Laws relating to " property and civil rights" are the most important and most sacred of all temporal laws by which a people are governed, and include more than all the other subjects named. The laws relating to bankruptcy and insolvency are so vastly inferior^ in importance, it cannot be contended' for a moment that authority to deal with the latter -subject can take with it> ' as incident thereto, the right to make laws upon the former subject j the minor right cannot merge the greater. The application then, of the two first men- tioned rules of construction, would entirely defeat the clear iatcution vf Parliament. 17 There is one case stated in the British North America Act, which renders a law enacted by either Legislative body null and void, viz : where a law passed by the Parliament of Canada is disallowed by the Sovereign, and where a law passed by any Provincial Legislature is disallowed by the Governor General ; then such disallowance being signified to the legislature or by proclamation within the time stated in the Act, the law in each case is declared to be null from and after the day of such signification. In regard to the power given to the Parliament of Canada to provide for a uniform law in the three Provinces upon the subject of property and civil rights, it is ex- pressly declared by the ninety-fourth section, that no law providing for such uniformity shall have any effect in any Province until the legislature thereof shall have enacted such law. Now it is not unreasonable to suppooe that in an Act of the peculiar nature of the British North America Act, if Parlia- ment had intended that laws enacted by either legislative body should in any other case be absolutely void and of no effect, it would have been stated. If the negative power is left to determine the question of legislative authority, that tribunal would not necessarily be bound by the construction which the judiciary might feel compelled to adopt, and would treat the sections named as declaratory only, and not in restraint of the general powers of legislation. Under this construction, it would be competent for the Parliament of Canada to deal with property and civil rights in the enactment of a uniform law on any of the subjects assigned to that body. But whichever construction may be considered most in accordance with the general rule for construing statutes, if there be any reasonable doubt of the intention of Parliament in regard to what laws should be void, or of the authority to determine what laws enacted are, or are not within the scope of the legislative authority, then I say public interest and public convenience require that such doubt should be given in favor of the legislative jurisdiction. By the legislative jurisdiction, I naean the negative power of the Sovereign and the Governor General, which Chief Justice Chipman in the case before cited said, was in the nature of a legislative power, retained for the express purpose of restraining and controlling the colonial legislatures. There is another reason why we should not give to the word " exclusive" the full legal force claimed for it. We must not mistake the real nature of the authority conferred by the British North America Act upon the Parliament of Canada and the Provincial Legislature. It is not an authority to enact laws. It is only an " exclusive" right and authority to the Senate and House of Commons for the Dominion, and the respective Legislative Councils and Auemblies of the Provinces to tender advice and consent to the Sovereign to enact laws, in regard to the subjects named in the Act. The Sovereign ever did by the legislative prerogative power enact all law for the United Kingdom by the advice and consent of the Lords and Commons, and for the Provinces by the advice and consent of the Legislative Council and Assembly. The Utter always had the right to give such advice and consent. No grant was therefore required lor that purpose. The Lieutenant Governor now, as for- merly, assents to Bills passed by the Legislative ' ^ncil and An^jmbly in the 18 name of the Queen in the same manner as the Governor General by authority of the fifty-fifth and ninetieth sections of the Act. In Cooley, on Constitutional Limitations, it is stated " where by the theory of any government, complete sovereignty is vested in the same individual or body to enact law, any law enacted could not be void, but if it conflicted with any existing constitutional principle must have the effect to modify or abro- gate such principle instead of being nullified by it. This must be so in Great Britain, with every law not in harmony with pre-existing constitutional prin- ciples." ^ This is an admirable illustration of the law making power under the British Constitution. Let us see how far it is applicable to the Dominion under the British North America Act. The same sovereign authority enacts all law for the United Kingdom, the Dominion, and the Provinces. In exer- cising the legislative prerogative power of enacting laws fur the United King- dom, the Sovereign is governed by the advise and consent of the Lords and Commons ; for the Dominion, the Senate and House of ( Jommons ; for any Province by the Legislative Council and Assembly. Though the advice and consent is tendered by "exclusive" right and authority by respec;ive legis- lative bodies of the Empire, the sole enacting power is centred in one and the same sovereignty. Hence whatever law is enacted by that sovereign authority either modifies or abrogates any pre-existing constitutional principle or law relating thereto. The Legislative prerogative pouer of the Sovereign can no more be subject to judicial supremacy when enacting laws for the Dominion or any Province, than when in enacting' laws for the United Kingdom. If we give to the word " exclusive" the full force claimed for it, it would carry us farther than any would be willing to go. The Lords and Commons by the British North America Act advised and consented that the Queen should^confer upon the Senatp and House of Commons for Canada the "ex- clusive" right and authority to advise and consent to the enactment of laws to be m force within the Dominion, and i?t a legal sense these two Houses of Parliament are as much excluded from the right to tender that advice and consent as the Legislative Councils and Assemblies in the respective Provinces, and cannot of strict legal right resume it. Therefore if a law enacted bv the advice and consent of the Legislative Council and Assembly or Senate' and House of Commons is subject to judicial supremacy, because repugnant to any " exclusive" authority conferred, the law enacted by the advice and consent of the Lords and Commons, alike repugnant, must also be subject to judicial supremacy. This is the fair legal result of the claim on behalf of the judiciary, not only to declare what the law is, but to restrain the sovereign authority which alone can declare what shall be the law. There are certain acts per- formed by virtue of the prerogative sibject to judicial inquiry, but that of enactinrr laws is not one of them. There is nothing in the British North Amfcuiou Act that can be construed to render it so subject. On the contrary, the sovereign prerogative to enact the law in the fullest sense, to dissent frrm and declare null a law passed by either of the legislative authorities within the Dom-inion,_is expressly preserved and confirmed by Parliament. If Par- liament had said it shall not be lawful for the Queen to enact laws with the 19 advice and consent of tho Legislative Council and Assembly of any Province, except upon the subjects assigned to each, and had not preserved the negative power for the purpose of detorminintj what was within the subjects so exclu- sively as^signcd, there miu;ht he some force in the claim put forth on behalf of the judiciary to assume tliat jurisdiction. None will deny that it is most desirable for each legislative body to confine its legislation to the subjects assi.ned to it by the British North America Act, 6 far as it is possible to do so, consistent with the {"general .^interest of the Duminion, or of any Province. But it would be very unwise in the c om- mencement ol our confederate system of government to surround the consti- tution with a legal buiiil rendering it unable to yield to any public necessity or public pressure, save only that capable of rending it assunder and reducing it to its original fragments. It is not a sufficient answer to say that a remedy can be found to meet sucli a difficulty in an application to the Imperial Parliament. The people of the Dominion, through the Legislative authority, always did, and do now, possess the power within themselves necessary to effect any change they may deem desirable in the constitution or laws, and no other power within the constitution other than the negative power can prevent them. The Constitution of the United States is a grant of executive and legislative and judicial powers and authority to these three departments of the Govern- ment organized under its authority, with certain specified subjects upon which no law is to bo enacted, and reserving all other powers not expressly granted. It provides the mode of appointing and electing all officers of the state, and among a great variety of provisions an article is inserted declaring that the Constitution is the supreme law of the land. It ma*kes special provisions in regard to the mode of proposing and effecting amendments to the constitution by the people through delegates elected for that pupose, and so depriving the legidaiive axUhonty of any such power it expressly requires that the judiciary shall determine all questions according to the authority as declared by the constitution. The oath of office taken by the Judges before entering upon their judicial duties, compels them to decide every question by the standard of the constitution as the supreme laiv. The legislature under that constitution does not represent the people in the same sense in which Parliament represents the people under the British constitution, nor in the sense in which a colonial legislature represents the people under the colonial constitution. A rule of construction therefore applied to the former in regard to its restraining powers must not be applied to the British North America Act That Act does not contain a grant of powers from the people to the legislatures, nor from the Imperial Parliament acting on their behalf to the legislatures, for the reason that Parliament does not act in its dealings with the colonies in a representa- tive capacity, but as a sovereign power. The people of the colonies are not repre^ented in Parliament. But the action of Parliament in regard to the colonies is governed by the same principles, as if it acted in a representative capacity, and therefore subject to be altered or repealed by the legislative authority of the colony to which it relates, in so far as it affects the internal interests of that cfW«hyr The theory of the British Constitution is that Parlmment reprw-nts th« y ^ple in the fulh .t possible sense, and can do whatever the peopl. tiD^mseives could do were they personally present. Parhament can add to or Ink^ from the constitution whatever it deems proper The law enacted by the i,over<.ig« with the advice and col nt of the two Houses of Parliament is the sup,. me law. The colonial legislature in like manner represents the people and may add to or take from the Colonial Con- stitution. AH laws enacted by the Queen, (represented by the Governor) with the advice and consent of the Legislative Council and Assembly i. the supreme law within the Colony. ^ The seventeenth section of the British North America Act says, " there shall be one Parliament for Canada," meaning for the people of CaLda. Ne ther the term "Parliament ' in the ninety-first section, nor t'he term " legislature'Mn the ninety-second section is used to designate a body distinct from, but as a body representing he people, and must br- read in the same sense a if the words ^tAl7 T Y'^'^'f r*^ '^' ""^^' *' ^^^ P-P^« - the IgislaTu;' had been used. Inasmuch, therefore, as all the powers of legislation men- tioned in the Act were possessed before and at !he time of its enactment these so, as a., not to be taken as granting powers already possessed nor' n »n arburary u. . ne as restraining the exercise of such powers. Whatever language IS used fo express it, it must be taken as declaratory onh in pointine out for the purpose of greater convenience, the particular subject/ upon which «n?h"7 ; *k'°"^^ e^ch legislative body, are to exercise the WisTat ve authority, to be controlled only by the negative legislative power ^of the Sovereign. In reading the Act then we must not treat Parliament or he legislature as distinct from the people, but like all statutes involvinTthe rLhtJ of the subject or the public good, it must receive the most full^and liS construction the language and intention of the legislature will admit o and best to attain that end. No man will be found to say that the pubHc interests or the rights of the subject will be best promoted b/ the judiciary exercS jurisdiction to declare an act - i the legislative authority void, tWeby ren? thfCT'-UuX^^^'''^ ^"^^^ °^ ^" ''''-'' ^''-- All must agree hat both objects will be best attained if that question be determined as heretofore by the negative authority, and the binding force of the law, when enacted rendered certain. Certainty in the binding character of the awsTs a maUer of the greatest importance in every well governed country. The iudidarv ought not, therefore, to attempt to restrict the powers of Parliament ir ofTe rstfof'tr' T'^«\^«-^ ''^^^-ch restriction is necessary in the n! terests of the people, or the liben. ;f the subject. senllt^ves7n 'P^ r ' ^^^^ ^^^^^^'^ '°^ ' ' ^ l^o^^^ ^'^nnot rely upon their repre- sentatives in Parliament to protect » 'he and provide the neceLry autho'-Sy' «o "nt he judgrtroAhf^^^^^^^^^ be put into exprntinn Rill if ,uJ • j- • • . J""6"*"=nis 01 tne (courts to au,L,y shonTd^ers; .^ llnU t:Tat" : ''dXed'trf ■?"•" authority, M-e need not bp <»,irnr,-=o;> if .u i • i "^cmrea by the legislaUve of ,he cL,ry. rhiTdVtd'crra n dt S^ t'/S "r 'L'"' '•?""" u. adm,niB,..a,ion wi.hou. any question of the .mWrS^ihtl'i r^rd" lea.mg ihul lo be determined by the only .tt,hori.> knownlo t^o cSi to abolish with such ted by the stration of lorn of the judiciary any act of chich they 1 the legal :• original dual will power of sign head aijd every f Appeal luire the lacted by in order reversal ivith any )bey the I created le Court itutional It in the It seems . firstly, rinciple, !i autho- luse the If the though Quid be ion had to the Fudges, lurts to uch an islative iterests it upon snated, olonial 25 'k constitution and the one provided by the Act for that purpose This is a jurisdiction peculiar to the judiciary of the United Stales under \\ie\x constitution, in which the prerogative power as known to our constitution forms no part. The written constitution is 'he prerogative authority through which the people have declared their will, which is paramount to that of their representa- tives expressed in any law. This high authority is not claimed by the Judges by virtue of judicial supremacy, but as administruiors of the public will. This judicial jurisdiction is a theory altogether foreign to the spirit of the British constitution, by virtue of which the sovereign declares th*? will of the people in every law enacted in regard to the subjects embraced therein. Hence when the Judges in any Province claim to exercise this high authority by virtue of judicial supremacy, they act not as administrators of the public will but as restrainers of that will, declared by the only authority through which the people speak. In conclusion, to use the language of Blackstone, " what Parliament does no pow^r on earth can undo," and so what the Parliament of Canada does or the Legislature of any Province does, no power within the Dominion, save Ihfc lygislative, can undo or successfully resist. JAMES STE ADMAN. Fredericton, Februarv, 1873.