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Tous les autres exemplaires originaux sont film6s en commencant par la premiere page qui comporte une empreinte d'impression ou d'illustration et en terminant par la derniSre page qui comporte une telle empreinte. Un des symboles suivants apparaitra sur la dernidre image de chaque microfiche, selon le cas: le symbols — •► sianifie "A SUIVRE ", le symbole V signifie "FiN". Les cartes, planches, tableaux, etc., peuvent etre film6s d des taux de r6duction diff6rents. Lorsque le document est trop grand pour etre reproduit en un seul clich6, il est film6 c* partir de Tangle sup^rieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'images n6cessaire. Les diagrammes suivants illustrent la m^thode. 1 2 3 1 2 3 4 5 6 OL. 'oL. II.— No. a -X Vior. vi-i 1 1 i-.i.-;t',-'. July, 1890. T II E Juridical Review an Snteniational JOURNAL OF LEGAL AND POLITICAL SCIENCE P UBL I SHED Q UAR TERL V Contents Portrait of LORD Selborne, .... Frontispiece The Federal Constitution of Canada. II. By J. G. BOURIXOT, C.M.G., D.C.L., . . Page 209 The Criminal ResponsibiHty of the In.sane. By Edward F. Willougiiisy, M.D., Foreign Companies under French Law. By C. A. Kennerley Hall, Advocate, Paris, The De Facto Principle in Jurisprudence. By P. J. Hamilton Grierson, Advocate, The Work of the West Indian Commissioners. II By A. Wood Renton, Barrister, Current Topics, .... Aurelio Safti, by Professor Kirkpatrick— Civil Marriage and Canon Law— Marriages in Malta— The Right of E.xpelling Foreigners. Reviews of Books, •••.., Brett's Commentaries on the Laws of England, by J. Walker Craig— Stroud's Judicial Dictionary, by GEoi^GK Watson— Public Health Manuals— Etude sur la Publicite de la Propriete dans le droit Roman, par G. Cornil. Notes on Decided Cases, • • . . . 287 Superior and Vassal— Section 4 of the Conveyancing Act of 1874 —Correi Dcde/i(fi—]o'\r\\. and Several Obligation— Local Cus- tom—Essentials to its Validity in Law— Right to Captured Whales in Shetland — Divorce for Desertion— Duty to Fence Pitfalls on Lands— Vesting Subject to Defeasance— Defamation —Is a Fair Report of a Judgment necessarily Privileged .? — Colonial Appeal. ((Htiinburrjij WILLIAM GREEN & SONS Hato Boolisellers LONDON: STEVENS & HAYNES 220 234 245 256 264 276 List of Investment, Mortgage, Loan, Security Companies, Banks, &c. The Anglo-Argentine Bank, Ltd. — 4i and 5 per Cent, deposits. Authorised Capital, £1,000,000; Subscribed, £500,000 ; J 'aid-up, £2r)0, 000. i>(Vec0 and upwards, the said Debentures being secured by carefully selected Farm Mortgages valued at two and a-half times the amount lent, the Mortgages them- selves being assigned to and deposited with the above-named Trustees, the Assignations in favour of the Trustees being duly recorded in the County Register of the State in which the lands lie. Deposits are also received at short dates at the same rate of interest. Furtiier infor- mation can be obtained from Guild & Shepherd, W.S., 03 Castle Street, Edinburgh ; Finlayson 6 Auld, Writers, 213 West George Street, Glasgow. Jarvis-Conklin Mortgage Trust Company, United States and London.— Authorised Capital, $0,000,000 (about £1,237,000) ; Capital Paid-u|), $1,500,000 (about £309,000). Trustees for the Delientnre-hulders—lloa.mnont W. Lubbock, Esq., Bank'- 15 Lombard Street, London ; John Birkbeck Lubbock, Esq., Banker, 15 Lombard Streti, London ; Alfred Fryer, Esq., Wilnislow, Cheshire. This Company is now ofTcring five and ten year sterling Debentures at 5 per Cent, interest payable half-yearly, at the Banking- Ilouse of Messrs. Ilobarts, Lubbock & Co., 15 Lombard Street, London. Tiiese Deben- tures are secured by the deposit in the hands of the Trustees of First jNIortgage Securities, equal in amount to the Debentures issued. Tiie Mortgages deposited with the Trustees are on Freehold Properties, the amount lent on Mortgage not exceeding in any case 40 per cent, of the value of the Property. Each Deljenture bears the certificate of the Trustees that they have received and hold such Mortgage Securities. The Debentures are further secured by the general assets of the Company. The Com[)any also receives money (not less than £200) for investment on First Mortgage at 6 per Cent, interest, or with Guarantee of Company at 5j per '■ Cent. Money received on deposit for one ov more years at 4^ per Cent. Full information on application to Maclean ]5rodie & Forgie, C.A., 22 Renfield Street, Glasgow. The Bank of South Australia, Limited.— Established 1841. 4\ per Cent. Deposits. Capital Paid-up, £800,000 ; Reserve Fund, £100,000 ; Reserve Liability, £800,000 ; Total £1,700,000. Money received on Deposit for fi.xed periods at the following rates: — 4 per Cent, for One Year, 4^ per Cent, per Annum for Two or more Years. Interest remitted by Cheque on 30th June and 31st Deeendjer. Maclean Brodie k Forgie, C.A., 22 Renfield Street, Glasgow. Bank of New Zealand. — Incorporated l so l. Bankers to New Zealand Government. Head Office— I (^ueen Victoria Street, London, E.G. Branches throughout New Zealand, South A.ustralift, Victoria, New South Wales and Fiji. Directors — J. A. Ewen, Esq. ; Sir Jas. FerguHSon, Bart. ; Hon. S. Carr Glyn ; Sir P. G. .lulyan ; Rt. Hon. A. J. Mundella ; Rt. Hon. Sir Hercules Robinson. Capital Subscribed, £1,200,000; Reserve Liability of Shareholders, £1,500,000. Deposits of £50 and upwards for one, two, or three years, are received at 4J per Cent, by following Deposit Agents —M(iSSVB. Hamilton, Kinnear k Beatson, W.S., 35 (Jueen Street, Edinburgh ; Anderson & Mackinnon, Writers, 140 ILope Street, Glasgow ; Strachan & Gray, 177 Union S.reet, Aberdeen ; and J. & J. Ogilvie, Solicitors, 12 Meadowside, Dundee. PAGE 3 OF ADVERTISING SHEET. J I Fhotosraviu-e by T » K Annnn i 3on», DUbsow EX LORD HIGH CHANCELLOR OF GREAT BRITAIN. ;( '-' i'LL'i:i;.\', ■ (>xs'rrr?--;'!^»\ OF canai^ I ■"N U.^ iiij"! 'i*"U'ii> vV i ;v^■ ^"'i"';!'-!- .^ ■>■' ''■ Oi Ae.ll^'0 />r ihii ' ■:,il*-\';r?"SlJff^;,- in ?iK\ A' :s ' II) Vh iri^;'i'/'ij «:'::::-rii'r.nv '/'•♦"■''^t (kfif, : )om iin 209 THE FEDERAI. CONSTITUTION OF CANADA, {a) n. XXTHEN the authors of the Federal system of Canada * ^ adopted the resolutions of Quebec and the British North America Act, they had before them the unhappy experience of the United States in the difficulties arising out of the persistent assertion of State rights. They accordingly proceeded to enumerate with great eare the powers of the Dominion Parliament and the Provincial Legislatures respectively. This is directly opposed to the principle of the United States constitution, in which the powers of the Federal Government only are enumerated, and powers not delegated to the central authority are reserved to the States. In the Canadian constitution the residuum of power is given to the Government of the DominionT/ It is expressly set forth in the introductory words of section 91 of the British North America Act, that the Parliament of Canada is " to make laws for the peace, order, and good government of Canada in relation to all matters not coming within the classes of subjects assigned . . . exclusively to the legislatures of the provinces." In order to place the matter beyond doubt, the same section not only states that the enumeration of Dominion powers is not to restrict the generality of the words just quoted, but it concludes with the declaration that " any matter coming within the classes of subjects enumerated in this section shall not be deemed (o) The first part of tliis article will be found, supra, p. 131. VOL. II. — NO. VII. P 2J0 THE JURIDICAL KEVIEW. to come within the classes of matters of u local or private nature comprised in the enumeration of the classes of subjects assigned exclusively by this act to the legislatures of the provinces. , , . Although only twenty-three years have passed since the establishment of the Federal union, the ti' le of the Courts of Canada and of the judicial committee of -he Privy Council has been much occupied by tlie consideration of cases which have arisen upon the interpretation of section 91, and of section 92, which contain the enumeration of dominion and provincial powers. A careful examination of these two sec- tions will show the student that, despite the obvious intention to give predominance to the Dominion Parliament in cases not expressly provided for, there are in the very terms of the enumeration itself the elements of grave doubt and contro- versy. Questions of difhculty have constantly arisen in connection with " property and civil rights in the province," over which exclusive authority has been given by section 92, sub-section 13, to the provincial legislatures. It necessarily happens that in legislating on subjects within its exclusive jurisdiction the Dominion Parliament may trench upon the provincial rights in this particular. Again, with regard to certain classes of subjects generally described in section 91, as belonging to the Dominion, legislative power may neverthe- less reside as to some matters, falling within the general description, in the provincial legislature. Or, subjects which in one aspect, and for one p>urpose fall within section 92, may in another aspect and for another purpose fall within section 91. Or, the powers of the Dominion and provincial authorities are in certain cases expressed in such broad and general terms as to cover and include the same subject. For instance, insurance has been judicially determined to fall within the express power of the Dominion Parliament to regulate trade and commerce, and also within the more specific power of the provincial legislatures over " the incor- poration of companies with provincial objects." Conse- quently the Dominion Parliament has passed a great number THK FEDERAL CONSTITUTION OP CANADA. 211 of Acts, incorporating insurance companies to do business throughout the Dominion. Tlie provin(;ial legislatures also incorporate similar companies to transact business within the limits of a province. At the same time it is authoritatively laid down that tlie Dominion Parliament has no power to regulate by legislation the contracts of a particular business or trade in a province, but the form of the contract, and the rights of the parties thereunder, must depend upon the laws of the country or provirc in which the business is done — the power being given to the local legislatures to legislate upon " property and civil rights in the province." (a) In the case of the inland fisheries, difficulties have also <.■.,. ■ ,...,r ,..: ,..,:.. , ., ..;?,.,• ,, That as there are many matters involving property and civil rights expressly reserved to the Dominion Parliament, the power of the local legislatures must to a certain extent be subject to the general and special legislative powers of the Dominion. But while the lefjislative riu'hts of the local legislatures are, in this sense, subordinate to the rights of the Dominion Parliament, these latter rights must be exercised as far as may be, consistently with the rights of the local legislatures, and therefore the Dominion Parliament has only the right to interfere with property and civil rights, in so fsir as such interference may be necessary for the purpose of legislating generally and effectively in relation to matters confided to the Parliament of Canada.(6) i " ". ■ ' '■ ■■ f • But it is reasonable to assume that the right of the Federal ParliMnient to legislate in this manner is limited to such legislation as is absolutely necessary to give full effect to its lawful powers. It cannot be argued from the most strained interpretation of the constitution, that the Federal legislature should, in the exercise, for instance, of its general power to provide for the peace, order, and good government of Canada, obliterate the jurisdiction of the local legislatures over matters of a purely provincial or municipal character, or assume full control over civil rights and property. (c) On the other hand, the local legislatures, whose powers («) The Queen v. Roherlson, Canada Supreme Court K., vol. vi. pp. 52-143. (ft) Can, Sup. Court R., vol. iii.|]). 15 ; vol. iv. pp. 110 and 111, 242. (c) Can. Sup. Court R., vol. iv. 272. . , I) THE FEDERAL CONSTITUTION OF CANADA. 213 fire limited coinpured with these of the General Parliament, must be careful to confine the exercise of these to the par- ticular subjects expressly j)laced under their jurisdiction, «'ind not to encroach upon subjects which, being of national importance, are for that very reason placed under the exclu- sive control of Parliament. («) '». • ■ " AVhere a power is specially granted to one legislature, that power will not be nullified by the fact that indirectly it affects a special power granted to the other legislature. In other words, it is only in the case of absolute incompati- bility that the special power granted to the local legislature gives way. (6) ».( .. i i i .. !, i .• .-'i. The wide construction placed on the general power given to the Dominion Parliament "to make laws for the peace, order, and good government of Canada," can he seen from a decision of the Judicial Committee of the Privy Council with respect to the Canada Temperance Act, which is a law of *' local option," giving the ratepayers in an}' lo(!'ality the power to prohil)it the sale of intoxicating liquors, and to regulate the traffic in liquor generally. Their Lordships laid it down emphatically (an issue having been taken as to the ))ower of the Dominion Parliament to pass the measure), that "' laws designed for the promotion of public order, safety, or morals, and which subject those wIk^ contravene them to <'riminal procedure and punishment, belong to the subject of public wrongs rather than to tliat of civil rights." They are of a nature which " fall within tlie general autliority of Par- liament to make laws for the order and fjood oovernmcnt of (-anada, and have a direct relation to criminal law, which is one of the enumerated classes of subjects assigned exclusively to the Parliament of Canada." Few, if any, laws '' could be made by the Parliament for the peace, order, and good U'overnment of Canada which did not in some incidental way aflect property and civil rights ; and it could not have (a) ("an. Sui). (.'oiiit II, v..l. iv. 348. {{>) Moreditli, C. J., .') hgal News, Mimtreal, 333. 314 THE JURIDICAL REVIEW. been intended, when assuring to the Provinces exclusive legislative authority on the subject of property and civil rights, to exclude the Parliament from the exercise of this general power whenever any such incidental interference would result from it." On these grounds the Judicial Com- mittee decided in favour of the constitutional character and validity of the Scott Act.(a) In the first ten years of the Confederation there was a tendency in the Courts, as well as in Parliament, to mini- mise the jurisdiction of the provincial legislatures, and to claim that they were only practically municipal corporations of large powers. It was even claimed that the Crown is not represented in the provincial governments. In one memor- able case it was practically decided by a mere majority of the Supreme Court of Canada that the Dominion Government alone has the right to appoint Queen's Counsel as a prero- gative right of the Queen, who is represented directly by the Governor-General, (b) With the progress of Con- federation, however, there has been a steady assertion of provincial rights ; a determination, in fact, on the part of the provincial ooA^ernments to stretch to an extreme desjrec both the express and the implied powers of the provinces, and the general result of recent decisions has been to strengthen the claims of the advocates of " provincial rights." It is now generally admitted, or more strictly speaking, the weight of authority goes to show, that the Crown is represented in the person of the Lieutenant-Governor as the head of the provincial executive, so far as concerns the performance of (a) 7 App. Oils. 82t). (b) fjinoir v, Ritchie, Can. Supreme Coiift Rep.^'vol. iii. i)p. 575-640 The opinions expressed in tliis case by tlut'e judj^es with respect to Queen'.-* Counsel have never been considered satisfactory by eminent lawyers in Canada and England, who have looked into these legal questions. The provincial govern- ments continue to appoint such counsel concurrently with the Dominion Govern- ment, by virtue of provincial statutes ; and the consequence so far has been a multitude of counsel, and a lessening of the estimation in which the honour should be held. General ojtinion favour.*! a test case before the Judicial Com- mittee of the Privv Council. THE FEDERAi. CONSTITUTION OF CANADA. ^15 all executive or legislative acts that have to be performed by such functionaries in the Queen's name — the assembling and dissolution of the legislature, and other executive acts, (a) But the decision which has given greatest force to the asser- tion of provincial rights is one pronounced by the Judicial Committee of the Privy Council on a License Act of Ontario, which was decided to be within the powers of the provincial legislatures. The ground of the decision was that the powers conferred by the act in question are in the nature of police or municipal regulations of a merely local character for the good government of taverns, &c., and such as are calculated to preserve in a municipality peace and public decency, and repress drunkenness and riotous conduct. The Judi<;ial Committee laid it down emphatically, that the pro- vincial legislatures are " in no sense delegates of, or acting under any mandate from the Imperial Parliament." They go on then to say, that when the British North America Act provided that there should be a legishiture for Ontario, and that its legislative assembly should have exclusive authority to make laws for the provinces and for provincial purposes in relation to the matters enumerated in section 92, it con- ferred powers not in any sense to be exercised by delegation from, or as agents of, the Imperial Parliament, but authority as plenary and as ample within the limits prescribed b}' section 92 as the Imperial Parliament in the plenitude of its power possessed and could bestow. Within these limits of subjects and area, " the local legislature is supreme, and has the same authority as the Imperial Parliament or the Parlia- ment of Canada." (h) Three large octavo volumes (c) are now required to contain the vjirious decisions given on the cases in which constitu- («) TixUVh " Ptirliainentary Government in tlie Coloniea," pp. ;}92, 393 ; Can. Sup. Court R., vol. V. pj). 637-643. See also Theberije v. Landry, 2 App. Cas. 102, which appears to sustain the provincial contention that the Crown is a constituent part of the provincial legislature. — Canada Law Journal, Jan., 1890. (h) Hodge v. Jieginam, 9 App. Cas. 117. (c) See Cartwright's " Cases on B.N.A. Act," 3 vols., Toronto. Another volume is promised this year. ,216 .« 't THK JURIDICAL REVIEW. I i tional ditiiculties liave arisen. All the Courts of the provinces have the right to interpret the constitution, and declare an act of any legislative authority in the Dominion intra or ultra vires as the case may be. They do this in the ordinary process of law, and not under any special power given them l)y the constitution. The Supreme Court of Canada, how- ever, was established for the purpose of acting as far as possible as a Court of Appeal for the provinces.. It is not, however, the ultimate Court of Appeal for the Dominion, since it is the continual practice of the Judicial Committee of the Privy Council to entertain appeals from the Supreme (,'Ourt, when it is considered any error of law has been made and substantial interests are involved. Indeed, the Court can be considered only a general Court of Appeal for the Dominion itself in a limited sense, since there is in every province the right to appeal from its Appellate Court directly to the Privy Council, (a) But the general sense of the people is tending more and more to make the Supreme Court, as for as practi- cable, the ultimate Court of Appeal in all cases involving constitutional issues. It is felt that men, versed in the constitutional law of Canada and of the United States, and acquainted with the liistory and the methods of governinent, as well as with the political conditions of the country at large, are more likely to meet satisfactorily the difficulties of the cases as they arise, than European judges who are trained to move in the narrower paths of ordinary statutes. A remark- able assertion of the judicial independence of Canada can be seen in the Act(?>) passed by the Parliament of the Dominion («) Ciissoll's " Practice of tlie Supreme Court of Caniula," p. 4. Supra, p. 137, the copyist jfives the number of Supreme Court judj^'es incorrectly ; the Court <'()n8i8t8 of a chief justice and five puisne jutl) Can. Stat, 51 Vict. c. 43. The report of the Canadian Miuister of Justice on this Act (which has been allowed), contains a sti'ong assertion of the right of the Canadian Parliament to pass any Act alfectinj,' the Royal prerogative, since that body has under the B.N.A. Act, full jurisdiction over the Criminal Law, the THE FEnERAL CONSTITUTION OF CANADA. 217 in 1888, which enacts that " notwithBtanding any royal prerogative " no appeal shall be brought in any criminal case from any judgment or order of any Court of Canada, to any Court of Appeal or authority by which, in the United King- dom, appeals to Her Majesty in Council may l»e heard. Whilst there exists in the Crown of Enoflahd a oeneml power of disallowing any Act passed by the Parliament of the Dominion, the Imperial Government has given to the Governor-General in Council the right to review all the Acts [tassed by the several provincial legislatures, and to disallow, or, in other words, veto them for good and sutKcient reasons. (a) That is to say, the Dominion Government now occupies towards the provincial legislatures the same relation which the Imperial Government formerly held towards the provinces before they, became parts of the Federation. The (ixercise of this power has given rise to some controversies between the Dominion and the Provinces on account of the general government having considered it expedient in the public interests to disallow acts which were believed to be within the constitutional jurisdiction of the legislatures that passed them. The British North America Act does not limit the exercise of the power ; the Dominion Government may ilisallow not only an Act whicli is unconstitutional in whole or in part, but also one that is quite within the competency of the legislature, but is at the same time regarded as in- jurious on grounds of public policy. Consequently a j)ower, essentially sovereign in its nature, is to be used with great constitution of a },'encral Court of Ajjpeal for Canada, and the i>eacr, order, and good goveinnient of the Dominion. In another case, still under the re\ iew of the Imperial Government — the Canadian Coi)yright Act of 1889, wliich conllicts with imperial legislation on the same subject — the Canadian (iovernment takes the ground that the Canadian Parliament can legislate on all subjects over which it has legislative jurisdiction by section 91, even if in doing so it repeals an imi)erial statute, applicable to the Dominion, pjvssed previous to 1867, when the Imperial Parliament gave such large powers to Canada. This legislation is subject, of course, to the general power of disallowance possessed by the Crown. See Canadian Sess. Taj), for 1889 and 1890, Criminal Law and Copyright, Bourinot's " Federal Government," p. 39, note. (a) B.N.A. Act, 1867, §S &«. 90. r 218 THK JUIUDICAL HKVIKW. caution. The exercise of the veto may have its uses in restraining hasty and unconstitutional legishition, or in cases involving the peace, integrity, and security of the (Jonfedera- tion, on which there is consensus of opinion to support the Central Government. The principle, however, appears now generally laid down by the lejiding statesmen and lawyers of both political parties in Canada, that the wisest policy is not to interfere with any legislation which is clearly within the constitutional rights of the provinces, and does not affect the harmony and vital interests of the confederation as a whole. As a rule the safest practice is to leave the Courts to act as the arbiter in all cases of constitutional controversy. The exercise of such power by a political body has obviously its dangers in a Federation composed of several provinces, jealous of their constitutional rights, anxious to preserve their local iiutonomy, and looking with distrust on every attempt to interfere with their legislative authority. (a) The experience of Canada since 1867 proves quite con- clusively that there is in the Dominion, as uecessaril ,"■ in all countries united b}^ the federal principle, a tendency to friction between the National and the Provincial Govern- ments arising out of the distribution of powers. The doctrine of State sovereignty is at times pressed to undue limits iu (.*anada, as was the case for the greater part of a century in the United States. Happily for the Canadian Federation, there is no great social institution like slavery to complicate the political situation and give a fictitious strength for a while to the ndvocates of State rights. The presence of a large community speaking the French language, and posses- sing institutions differing in essential respects from those of the majority of the people of Canada, is one of the strong reasons for the constant assertion of provincial rights, apart altogether from the fact that such an assertion must always more or less exist in any system of federal government. Mr. Dicey(6) has st-^ted with much force that the sentiment (a) Bouriuot's " Federal Government in Canada," pp. 58-62. {h) " The Law of the Constitution," .3ra ed., p. 133. THK FEDERAL CONSTITUTION OK CANADA. 319 " which animates a federal state is the prevahmce throughout the citizens of more or less allied countries of two feelings, which are to a certain extent inconsistent — the desire for national unity and the determination to maintain the inde- T>endence of each man's separate state." This is as true of • anada at the present time as it was of the United States before the war of rebellion, the result of which has been to strengthen the Central Government, and to make the doc- trine of State sovereignty practically a dead issue. Not- withstanding the great care taken by the draftsmen of the Canadian constitution to draw the lines of division rigidly between the respective authorities of the Dominion, cases of conflict are inevitable. The danger in such a system lies in the indiscretions of politicians, in the provinces especially ; its safety lies in the legal foundation of the constitution, and in that respect for law which exists in communities governed by the principles of English jurisprudence, and workins: out their future on the basis of British government. The perpetuation of the Canadian constitution and the harmony of the members of the Confederation rest in a large measure on the Judiciary of Canada, just as the constitution of the United States owes much of its strenoth to the leoral acumen and sagacity of a great constitutional lawyer like Chief Justice Marshall, and of the able men who have, as a rule, composed the Federal Judiciary. The instinct of self- preservation and the necessity of national union must in critical times prevail over purely sectional considerations, even under a federal system, as the experience of the United States has conclusively shown us ; but, as 3 general principle, the success of confederation must rest on ?i. spint of compro- mise, and in the readiness of the pecp'.. lo accept the decisions of the Courts as final qiLd conducive on every constitutional issue of importance, j^ v^.''i■■'ifn^J■ Jno. Geo. Bouiunot. B