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 PREROGATIVE RIGHTS IN CANADA. 
 
 / 
 
 HEREDITARY REVENUES OF 
 THE CROWN. 
 
 WHICH GOVERNMEiNT IS ENTITLED TO 
 APPROPRIATE THEM? 
 
 ^E;a-UJVCEM"T 
 
 OF THE 
 
 HON. W. MACDOUGALL, C. B, 
 
 IN THK 
 
 MERCER ESCHEAT CASE. 
 
 l^liFORE SUPREME COURT OF CANADA (FULL COURT). 
 
 Reported by ANDREW HOLUND. Reporter for the Senate- 
 
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 PREROGATIVE RIGHTS IN CANADA. 
 
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 HEREDITARY REVENUES OF 
 THE CROWK 
 
 WHICH GOVERNMENT IS ENTITLED TO 
 APPROPRIATE THEM? '■■'S:- 
 
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 A.E.a-TJjvEEnsrT 
 
 ■.^.■' '. 
 
 OF THE 
 
 HON. W. MACDOUGALL, C. B, 
 
 IN THE 
 
 MERCER ESCHEAT CASE. 
 
 BEFORE SUPREME COURT OF CANADA (FULL COURT). 
 
 
 Reporfed by ANDREW HOLLAND, Reporter for the Senate^ 
 
 
'.* 
 
Ml'-. 
 
 The Mercer Escheat Case. 
 
 -* ^^ «— 
 
 Hereditary Keveuues of the Crown in Canada. Which Oovormnont, 
 since Confederation, is entitled to appropriate them 1 - 
 
 [<S/>e«e/< of Hon. W. Macdougall, Reported by A. IloUand, one of tht 
 Reporters fm the Senate.'\ 
 
 Tlie Mercer Escheat Case has become a cause cWebre, for it not only 
 involves the interests of the descendants of the dcceaised Andrew 
 lilercer — a son and four grandchildren —but it raises the question of 
 jurisdiction and right of property in the hereditary revenues of the 
 Crown in Canada, as between the Provinces and the Dominion. -^ • 
 
 Andrew Mercer died at Toronto in 1871, intestate, and (as Vice- 
 Chancellor Blaka held on the evidence before him) without lawful heirs. 
 He was supposed to be the illegitimate son of Chief Justice Scott, an 
 English lawyer who came to Upper Canada about the time it was estab- 
 lished as a separate province. The deceased Mercer was^a thrifty man, 
 of reserved habit, and, holding an office under Government for the 
 greater part of his life, accumulated a considerable pro[)erty. His 
 female servant, who claimed to be his wife, bore him a son, whom he 
 acknowledged and educated, and often spoke of, as entitled to his pro- 
 perty, because he had no other relations. It is probable there was 
 some pretence of marriage, for it was proved that the deceased and his 
 servant, after the birth of the son, lived together as man and wife, and 
 that he introduced her to certain of his friends as Mrs. Mercer. The 
 evidence of actual marriage, however, was not, in the opinion of tha 
 Court of Chancery, sufficient according to the laws of this country. 
 In the eye of Scotch law it would have been ample. 
 
 The Provincial Government, assuming that Mercer's property had 
 escheated to the Crown, and that the province was entitled to colleen 
 and appropriate escheats, took possession of the personal property, oon- 
 

 Bisting of deposits in banka, stocks, mortgages, bonds, etc., and deinnnded 
 the real proiwrty then in the possession of the widov' and her son. 
 According to the English law of procedure in escheat cases, tho tenant 
 in possession is entitled to the intervention of a jury— called an inqui- 
 sition -and young Mercer was advised that the evidence of marriage, 
 which did not satisfy a judge, might satisfy a jiry (especially as addi- 
 tional witnesses had been discovered) that his father and mother were 
 really man and wife, and that ho ought to hold possession and compel 
 the Attorney General to proceed by inquisition. But Mercer and his 
 advisers soon discovered that a poor man is at a great disadvantage in 
 a legal contest, when his adversary not only has the public purse at his 
 command, but can repeal law and make law to suit the case ns it goes on. 
 Foreseeing the danger of a verdict in favour of the son of tho intestate, 
 should he be required to disprove the reputed marriage before a jury, 
 the Attorney General introduced and passed an Act in 1874 authorizing 
 him to take possession in the name of tho Ciown, of any lands or pro- 
 perty escheated, or which lio might suspect liad escheated, 
 " without any inquisition being (inst necfssary." This Act was 
 disallowed on the ground that the Federal, and not the local 
 government, represented the Crown in matters of escheat. A political 
 Iriend of the Attorney General having succeeded to the office «f Minister 
 of Justice, and a decision of the Court of Queen's Bench in Lower 
 Canada having been rendered in favour of the provincial jurisdiction, 
 an ari-angement was made between the two law officers by which the 
 province should seize and appropriate escheats for want of heirs, while 
 the Dominion should deal with cases of forfeiture for crime. A new 
 Act was passed in 1877, recognizing this division of casual profits, but 
 abolishing '• inquisition," or trial by jury, as in the first Act. The 
 Attorney General now fyled an information in the Court of Chancery, 
 demanding possession forthwith on the ground that the decree of the 
 Court in the previous case had det{?rinined the whole' mutter. Under 
 the advice of his present counsel, Mercer demurred on various grounds^ 
 and the case was carried to appeal. The Ontario Court of Appeal, 
 though not agreeing with the Queen'a Bench of Quebec as to the 
 grounds of their judgment, held that the provincial governments are 
 entitled, under the British North America Act, to recover aad appro- 
 priate escheats. 
 
 Mercer, therefore, appealed to the Supreme Court on the point of 
 jurisdiction, and the Minister of Justice, concurring in the view of 
 Mercer's counsel, that the Hereditary Revenues of the Crown belong to 
 
 « 
 
N 
 
 the Liomiiiion, intervenoJ, and tho case was argued «t tlie sitting of the 
 Supreoifl Court in March, .1881. The Counsel were : — 
 
 For Appellant Mercer — 
 HON. W. MACDOUGA.LL, C.B. 
 
 For the Dominion — 
 Z. LASH, Q.C., Deputy Minister of Justice. . . 
 
 For Province of Ontario — 
 HON. E. BLA-KE, Q.C., J. BETHUNE, ESQ., Q.C. 
 
 I For the Province of Quebec — - , 
 
 E.'.- Judge LORANGER, Q.C. 
 
 Mr. Lash opened the case for the Dominion, basing liis argument 
 chiefly on tho British North America Act, and tho case of Lenoir vs. 
 Ritchie, which denied the claim of the provincial autliorities to 
 represent the Crown in matters of prerogative. 
 
 Hon. Mr. Macdougall followed witli a speocli that fixed the 
 attention of court and spectatora for several hours, as he reviewed the 
 case from legal, constitutional, and historical points of view, closing 
 with an eloquent and powerful appeal to the court from an Imperial 
 and national stand point. The reporter regrets that by mistake lie was 
 absent during the greater part of the hon. gentleman's speech on the 
 first day, but with the aid of the very full notes of Mr. Duval, the 
 obliging reporter of the court, and a few corrections made by the learned 
 counsel himself, he now presents to the reader the following able argu' 
 ment on one of the most important constitutional questions thai has 
 arisen since Confederation. 
 
 Hon. Mr. Blake replied with his usual ability, contending for 
 the undoubted right of the provinces to claim and appropriate escheats, 
 on the ground that all lauds, estates, lordships, etc., were transferred to 
 the provinces by the 109 th section of the British North America Act. 
 His argument was reported very fully in the leading newspapers at the 
 time. 
 
 Mr. Eetuune followed with a more technical argument. 
 
 Ex-Judoe Loranger, on behalf of Quebec, and provincial rights 
 generally, traced the history of escheat from the rescripts of the Roman 
 Emperors to the present time, contending that the right was a common 
 law right, and therefore subject to provincial legislation. 
 
 Mr. Lash closed the case on the part of the Dominion. 
 
 ■*■' 
 
.fl^fT- 
 
 . FmsT Day. 
 
 Satukday, March Stli, 1881. 
 
 Mk. Macdouoall said; I appear as counsel for tho Appellant 
 Mercer, the private party in this case. The judgment of the Ontario 
 Court of Appeal from which we have upi^aled to this court, after 
 expressing doubts as to some of the technical questions relating to pro- 
 cedure wliich were raised in tliat appeal, maintained the jurisdiction of 
 the provincial authorities in all cases where lands escheat in this 
 country for want of heirs. Believing that the judges of that court were 
 mistaken, I advised an appeal, and tho Attorney General for the 
 ^ Dominion, concurring in my view of the law, has intervened to maintain 
 the rights ot Her Majesty, as repicsenteJ by the Governor General. It 
 was agreed that in our arguments before this court we should confine 
 ourselves mainly to the question of jurisdiction. I, therefore, occupy a 
 double position, fii-st as counsel for the private party, whose right of 
 possession to his father's jjroperty has been attacked by the Provincial 
 Government ; and, secondly, to establish the right of Her Majesty as 
 represented by the Government of the Dominion to institute proceedings 
 for the recovery of escheats, and to administer this property if an 
 , ;, escheat be prov d . 
 
 I will first ask your lordships to consider the position of the Crown 
 in respect to " waste lands " in Canada — and indeed in all the North 
 American provinces — prior to the Union Act ot 1840. But, before I enter 
 upon that inquiry, I desire to explain my client's position as between the 
 two Governments. His interest in this contest, is not, in my view, en- 
 tirely a question of jurisdiction. It is a direct pecuniary interest, for if th« 
 Ixxsal Government administers this proj>erty he will get very little ; if 
 the Dominion Government is entitled to represent Her Majesty in the 
 matter of escheats, he and his children will faro much better, because it 
 has been the uniform practice in England, for a long period, for the 
 Crown to quit claim, or transfer escheated property to the natural 
 relatives of the deceased* owner, where such relatives exist. This has 
 also been the practice in Canada and the other proN'inces ; therefore, I 
 say my client's interest is not only a moral, but a 'egal interest, for in 
 such matters custom makes the law. Even the i Ontario Government 
 admits that he is the natural son of the deceased M(Tcer, and if we suc- 
 ceed in proving that the jurisdiction is in the Dominion, I shall expect 
 to receive from Her Majesty's representative iu this country the sAme 
 Uberal treatment for my client thftt he would have received before 
 Confederation. 
 
 Prior to 1837, as some of your lordshijw aie old enough to remeni- 
 ber, the control of the waste lands of the Crown, or, as they were called, 
 " the casual and territorial revenues," was a su iject of discussion and 
 dispute between the Crown officials and the Local Assemblies in all the 
 provinces. These revenues were not administnted or appropriated by 
 the Local Tjegislatures, but by the Governor and his appointees. As 
 
 •"Escheat is seldom called into action in modernltimes, as the Crown usually 
 waives its prerogative by making a grant to restore the estate to the femily," etc.. 
 — Whabtox, 350. 
 
Hettleiiient went ou these revenueB increnseJ, and it waa found ibat tlio 
 Executive Government could l»e maintained at the expense of the Crown 
 without assistance from the legiBhtture8,and that tho ]:)eople through their 
 repreMontatives could not obtain those reforms which they desired, nor ex- 
 ercise that influence which is now deemed essential to Rood goverument 
 overotfiuialswhowere practically independent of them. This was oneof tho 
 Hubjeots of dispute which culminated in the outbreak of iGclT. The result 
 was favourable to the poi)ular demand, for TiOrd Sydenham wasauthorized 
 to consent on bohalf of Her Majesty to a transfer or surrender of tho 
 casual and territorial revenues of the Crown for a limited time, and on 
 certain specific terras and conditions. In his speech to the Upper 
 Canada Ijngislature, which will be found in the Journals of the 
 7 legislative Council for 1839, he said: "I am commanded again to 
 submit to you the surrender of the casual and territorial revenues of 
 the Crown in exchange for a Civil List, and I shall take an early 
 opportunity of explaining the grounds on which Her M<xjesty's Govern- 
 ment felt precluded from assenting to the settlement wnich you lately 
 l»roposod." 
 
 It appears that tho Uppsr Canada Assembly had proposed a trans- 
 fer, without conditions which would have secured the salaries of the 
 Governor, the judges, and other higlrofficials against the hostile action 
 of a possibly disloyal or domineering majority in tho popular branch of 
 the legislature. I find that in the session of 1837-38 the Assembly 
 addressed the Governor for a copy of nn Act which had been agreed to 
 between the home authorities and the Legislature of New Brunswick, 
 regulating the collection and disbursement of the casual and territorial 
 revenues in that province. Your lordships will find this Act, or a 
 copy of it, in tho appendix to the Assembly Journals of Upper Canada 
 for 1837-38, p. 391, It is to be found also in the Revised Statutes 
 of New Brunswick, but lauch abbreviated, though in substance the 
 H'lme. I call your loi'dships' attention to the preamble, and especially to 
 the 6th section, of this Act. It is a rule in the construction of statutes 
 that they are to be interpretated by reference to former Acts in pari 
 materia, " for it is presumed " (says Maxwell, p. 31) " that the Legislature 
 uses the same language in the same sense when dealing at different 
 times with the same subject." 
 
 The learned counsel then read several ])assagfts to show: 1. That 
 the wasto lands of the Crown in New Brunswick, and the hereditary 
 revenues, including escheats, were not previously subject to the control 
 of the Provincial Legislature. 2. That tho transfer was conditional, 
 and for a limited time. 3. That the right ot the Sovereign to deal 
 with escheats, to compromise, grant to relatives, or otherwise dispaso of 
 them, WHS expressly reserved. 4. That by tho use of the words " lands, 
 mines, minerals and roijaUias," as distinct from hereditary .revenues 
 such as escheats, it if, seen that the construction put upon the word 
 " royalties" by the Quebec Court of Queen's Bench is a mistake, for this 
 New Brunswick Act was, no doubt, prepared by the law olficei-s of the 
 Crown in England. 
 
 The Chief Justice. — I remember very well tiiat that Act was 
 sent out frorA England, and caused a good deal of angry discussion. 
 
 Mr. Macuougah,. — A Bill, founded on the New Brunswick pre- 
 cedent, was paased, but containing, as I believe it did, stipulations that 
 
 SL 
 
8 
 
 
 would have ir.fringed on the prerogative rights of the Crown, it was not 
 Assented to. I have not been able to find a copy of the Bill, bnt I think 
 I have suggested the true explanation of the language used by Lord 
 Sydenham. As regards Upper Canada, therefore, it is evident that prior 
 to the Union Act of 1840, both the casual and the territorial rev- 
 enues of the Crown in that province were under the absolute control 
 of the direct representative of Her Majesty in Catmda, and that her 
 ti*.le to the waste lands jure coronce, and to the hereditary revenues 
 from whatever source, had not been, and constitutionally could not be, 
 affected by any act of the Provincial Legislature without Her Majesty's 
 consent, under the authority of an Act of the Imperial Parliament, 
 We start then with the Union Act of 1840, to ascertain the nature and 
 extent of local legislative authority over Crown lands and Crown rev- 
 enues in Canada, before Confederation, Tha first point to be observed is 
 the extreme care taken by the Imperial Parliament to secure a permanent 
 Civil List, especially in respect to the salaries of the Governor and 
 judges, as fixed by Schedule A of the Act. The Governor (sec. 53) might 
 abolish any of the political offices, and vary the sums payable for their 
 services, mentioned in Schedule B, but the permanent offices could only 
 l)e touched by an Act of the Legislature, which of course required the 
 assent of the Crown. But as regards the waste lands of the Crown, 
 we find this significant restraint upon the power of legislation in the 
 42nd section : — 
 
 " AVhenever any bill or bills shall bt passed containing any provi- 
 sions which shall in any manner relate to or affect Her Majesty's 
 prerogi^'ive touching the granting of waste lands of the Crown within 
 the said Province, every such bill or bills shall, previously to any de- 
 claration or signification of Her Majesty's assent thereto, be hiid bofortj 
 both Houses of Parliament," for ' thirty days,' and, if either House 
 should think proper to address Her Majesty asking her to M'ithold her 
 assent, it would not thereafter be lawful for her to give it. Other 
 formalities were required to prevent any covert legislation which if 
 neglected rendered such legislation ipso facto void. It will b« seen 
 that under these restrictions, in connection with those in the 5 7th sec- 
 tion, preventing the legislature from passing any vote to appropriate 
 any part of the surplus of the Consolidated Revenue Fund, without 
 ' a message ' from the Governor, and in the 59th section, which requires 
 the Governor to exercise all his powera and authorities in conformity 
 with * instructions ' from Her Majestv, any law divesting the Crown of 
 any of its prerogative rights, and vesting them in the Provincial Legis- 
 lature, must emanate from, or be expressly confirmed by, the I'.nperial 
 Parliament. Now, it will be for my learned friends to produce such a 
 law prior to July, 1867, if they can. I have failed to discover it. By 
 the Imperial Act of 1791 the tenure of free and common soccage was 
 declared to be the tenure of lands in Upper Canada, when granted by 
 the Crown, but the fee, estate, or title of the sovereign in the un- 
 granted lamls, Las never been divested or transferred to any other 
 power. Imperial or local. I contend that the power of the Canadian 
 Parliament before 1867, and the power of the Local Legislatures since, 
 in respect to the public lands, was and is simply a power of aduiinistra- 
 tion. I admit that an Act of the old Canadian Parliament, sanctioned 
 and approved; by Her Majesty as required by tlie Union Act of 1840, 
 
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 might have trausferreJ to the Canadian Government the absolute pro- 
 ,pi'ietor8hip; the prerogative right, of Har Majesty in the public lanis, »3 
 well as the power to raanage and sell, ar^d collect and account for, the 
 prjcaeds, bat no such Act is to be found, and therefore the prerogative 
 right remains as before. Such then U the general conclusion at which 
 we arrive as to the legal and constitutional position and power of the 
 Canadian Government prior to 1867, in respect to the prerogative rights 
 of Her Majesty in the casual and territorial revenues and waste lands 
 of the Crown, lu addition to the sections I have cited from the Union 
 Act of 1840. 1 r«fer your lordships to Forsyth's Cases and Opinions, 
 \). \'oG, and to the same authority, p. 157, for the opinion of the law 
 officers of the Crown, that escheats, in the colonies, cannot be granted 
 Itefore they accrue. The Knglish Civil List Act, 1 and 2 Vic, cap. 2, and 
 the Imperial Act, 15 and 16 Vic, cap, 39, passed to remove doubts as to 
 v/hether hereditary revenues in the coionies had not been surrendered to 
 the fmperial Consolidated Fund. From all these acts and authorities 
 I contend it is clear that the jurisdiction of the Canadian Government,' 
 even when these lands and revenues were under the control of a Gover- 
 nor who was a direct representative of the Crown, was limited, condi- 
 tional, fiduciary, and temporary ; and that the power reserved by the 6th 
 •section of the New Brunswick Civil List Act, and by the 12th section 
 of the Imperial Civil List Act (which are almost identical in terms) was 
 reserved in the cab8 of Canada, and that Her Majesty lias never parted 
 with her right to dispose of escheats by and through her repiesentative, 
 .the Governor General. The 1st and 2ad Vic, cap. 2, in terms extends 
 to the colonies and foreign possessions of the Crown, and the 15th and 
 16th Vic, cap. 39, to remove doubts, confirms my contention, because 
 it leaves the Ist and 2nd Vic. to its operation in thu colonies, except as 
 " to monies arising from the sale of Crown liands which might have been 
 lawfully disposed of" if the Civil List Ac^s of Will. 4tli, cap. 25 ard 
 1st and 2nd Vic. cap. 2, had not been passed, and expressly provides that 
 the surplus not applied to public purposes in the colonies " shall be 
 ■carried to, and form part of, the said Consolidated Fund " (sec. 2). The 
 doubt-removing Act is limited to the 'revenue from the sale of Crown 
 lands ; it leaves the hereditary revenues from other sources, and the 
 prerogative powers of the Crown, in the same position as before, in all 
 the colonies. When in 1847 the Canadian Parliament desired to make 
 some changes in the restrictive provisions of the Union Act, and passed 
 an Act for the purpose, what happened ? It was reserved, and as it 
 was expedient to pass ic — the object not being contrary to the spirit 
 of the compact between the Imperial and Colonial Governments — the 
 law officers of the Crown found that it would be necessary to repeal 
 certain clauses of the Union Act before the Canadian Act could be- 
 come law. This -^as done, and the Canadian Act was appended as^a 
 schedule, and became, therefore, an Imperial enactment, unalterable by 
 colonial legislation. 
 
 I now come to the British North America Act of \867. The 
 relative rights and powers of the Imperial and Provincial Governments 
 Hud Legislatures, and the qualified, conditional and temfmrary assign- 
 ment or loan of the hereditary revenues — not prerogative riglits, or even 
 "lands" — but " revenues, " the "net produce" of which was to be 
 "" paid over " after all proper deductions, (3 and 4 Vic. caj). 35, sec 54) to 
 
iij^<- 
 
 the Consolidatod Fund of olJ Cinttdu, have to be aijcortained and con- 
 sidered in construing the Union Act of 1867. We nuisb determine the 
 effect and meaning of the provisions of the Act of July, 1867, by ascer- 
 taining the legal and constitutional position of the subject matter im- 
 mediately before the passing of that Act. It is to be observed, in the. 
 first place, that the new legislative authority for the Dominion is declared 
 to be a " Parliament" — it was only a " Legislative Council and Assem- 
 bly " before — and the " Queen " is eo nomine declared to be a part of 
 that Parliament. It " consists " of the Queen, the Senate and the 
 House of Commons. But she is not a part of any other corporation or 
 legislative body under that Act. The great powers of government are 
 given to the Parliament of Canada, and only limited, enumerated and 
 definite powers of legislation, on local and municipal aiibjects,. are given 
 to the Local Assemblies. By sec. 102, "all duties and revenues" 
 over which the previous Provincial Legislatures had power of appropria^** ' 
 tion (e.xcept what is otherwise disposed of by the Act) are to consti- 
 tute a Consolidated Fund foi the public service of Canada. Now, I c an- 
 not understand the reasoning of the learned judges who say that by the 
 word "land, "in the 109th section, the absolute estate and prerogative 
 right of the Crown — always theretofore reserved — in the waste lands 
 of the Crown have been granted to and vested in the Provincial Legisla- 
 tures. It is clear, from the qualifying expression " belonging " to the 
 provinces " at the Union," that nothing more was intended to be given 
 to the new, than had already been given to the old, provinces. There-' :; 
 fore, we come back to the proposition I have endeavoured to estab- 
 lish, viz, that under the Union Act of 1840 the Queen's prerogative 
 right remained intact, and that neither the l09th nor any othor section 
 of the Act of 1867 has infringed upon or divested it. ' If we look at the 
 92nd section, which enumerates rmd limits the legislative powers of 
 the province, we find these significant words : " The nhanagement and 
 sale of the public lands belonghig to the Province, and of the timber and 
 wood theron." If it had been intended to extinguish the estate or title of 
 the Crewn, and to vest in the Legislature the absolutf* dominion over, 
 and fee simple in the public lands, why specify " the timber and wood 
 thereon?" In this grant of le^islativs power every word suggest;* 
 agency, trusteeship, and limitation ; not absolute ownership or undivided 
 authority. 
 
 As this is a question of interpretation and intention, and as we some-^ 
 times derive great advantage from the lig!it which is thrown upon 
 doubtful words and phrases in Acts of Parliament — though I see nothing 
 obscure or doubtful here — by ascertaining the views, opinions, and 
 intentions of the f ramers of tUose Acts, and as the estate or title which 
 " belonged " to the Province of Canada " at the Union " of 1867 is the 
 estate or title which belongs to Ontario now with certain qualifications, 
 I direct your lordships' attention on this point to the explanations of 
 Lord John Kussell, who introduced and carried through Parliament the 
 Union Act of 1840. You will find the report in the Mirror of Parlia- 
 «»cn< for 1840, vol. 4, pp. 3,722 and 3,725. Lord Stanley, who had 
 previously held the office of Colonial Secretary, t''.ough at the time in 
 opposition, approved genemlly of Lord John Russell's Union Bill. He 
 held strong views as to the propriety of retaming the Crown lands- 
 under Imperial control, and he put the following query to Lord 
 Busfiell : — 
 
H 
 
 :i^w*" 
 
 " I aiu not quile cei-tain whether the Govertiaient intends to keep 
 in their own hands the management of the lands of tlie Crown. [ 
 presume that they mean to do so, but upon this point I hope to have a 
 distinct assurance from my noble friend. I hope to hear that the manage- 
 ment of the Crown lands will contin«;3 in the hands of the Crown ; and 
 that it is not the Crown lands themselvt^s, but the revenue arising from 
 them, that it is proposed to transfer to the House of Assembly." 
 
 Lord John, replying to this point in Lord Stanley's speech, said : — 
 
 *' Then, Sir, as to the management of the Crown Lands. He asks 
 whether it will remain in the hands of the Crown 1 Sir, I believe it 
 will. There is no provision to transfer it ; and even supposing that the 
 revenue arising in part from laud might be somewhat diminished, under 
 the circumstances, I do not think that there will accrue any great loss to 
 the revenue from this cause ; for as fast as land may be alienated the 
 other parts of the land will become of more value, and other portions of 
 the Crown's revenue yield a greater increase than they have done of late 
 years. It may be said there is danger of an indiscriminatn sale of the 
 lands. To prevent that, however, I think there will be sufficient guards 
 in the protection and superintendence of the Crown officers. I therefore 
 do not think that the Crown revenue will be materially affected." . 
 
 We have here a commentary upon the land and revenue clauses of 
 the Act of 1840, by tho.se who framed them, and explained their mean- 
 ing to Parliament. It supports my contention that, as Lord Stanley 
 puts it, " it is not the Crown lands themselves, but the revenue arising 
 from them" that was transferred to the Canadian Legislature. It 
 results from this view of the reservation of the prerogative right 
 of the Crown in the waste lands of the Crown, under the Act of 
 1840, that the pamo right subsists, and was not intended to 
 be granted to the Local Legislatui'es by the Act of 1867. 
 The judgment of the Court of Queen's Bench for the Province of Que- 
 bec, in the Fraser escheat case (vol. 9,, Quebec Law Reports, page 236), 
 on which the Respondents also rely as a decision in their favour, is 
 based on the assumption that the word " royalties " in the 109th section 
 of the British North America Act t.ansfers to the provinces the heredi- 
 tary revenues accruing from escheats. I admit that these re\enues did 
 belong to the old Province of Canad.-*, subject to the right of her majesty 
 to quit claim to or release them in favour of relatives, as I have already 
 pointed out. But the " net produce " of these revenues is all that was 
 granted by the Act of 1840, and the 102nd section of the Act of 1867 
 gives these revenues to the Consolidated Fund of the Dominion, in ex- 
 press terms. The word " royalties " has no reference to these casual 
 rovenues, but to the rents or dues reserved for mining rights in the 
 Maritime Provinces. " It is usual for the Crown to reserve'a royalty 
 on minerals raised from waste lands in the colonies, " (Foreyth, 
 p. 178.) Not only is this clear from the associate words, 
 but the next sentence shows that such a construction was never contem- 
 plated by tha fi-amers of the Act, " and all sums then due or payable ybr 
 such lands, mines, minerals or royalties shall belong to " the provinces. 
 What " sums " could possibly be then due or payable " for " the pre- 
 rogative right to inherit, as ultimas hoeres, the property of persons dying 
 intestate and without heirs 1 Are the jura reyalia of the Crown things, 
 commodities, that can be sold in the market place, and for which 
 
rs 
 
 s 
 
 i 
 
 " Hums " of money may be " due or payable " by private peraons t 
 Surely not ; yet, m^llords, the Kespondents quote the case of Dyke vs. 
 Walford (5 Moore, p. 434) to support that proposition, for they say 
 royalties hero, means the same thing aa jura re'jalia, there. 
 
 The Ontario Court of Appeal, though arriving at the same conclu- 
 sion as to the jurisdiction, would not base their judgment oa the word 
 *' royalties," as the Quebec Court had doue, but discovered an intention 
 to transfer— I will net say, to sell— the prerogative to the Local Legis- 
 lature, in the words " all lands." But they overlook, or do not attempt 
 to constiue, the proviso at the end of section 109. The grant of " all 
 lands," etc., is subject expressly to " any trusts existing in respect 
 thereof, and to any interest " — that of the Sovereign, by virtue of her 
 prerogative, as well as any — " other than that of the province in the 
 same." This proviso qualifies the whole section. Private as well aa 
 public rights had to be considered in handing over the administration 
 of the public lands to Local Legislatures. Sales had been made 
 and rights acquired, which it became necessary to protect against 
 unjust treatment by an arbitrary majority in legislatures which 
 did not then exist. That proviso was intended to give a legal 
 remedy against theso new jrowera if they attempted to take away, 
 oi affect injuriously, the existing rights of any of Her Majesty's subjects 
 in the old provinces. I trust this Court will not ignore the proviso. 
 
 The next point urged by the Respondent, and recognized by the 
 Ontario Court as a correct inference in law, from the word " lands," is, 
 1st, that the estate, or interest of the Crown in escheats in Canada, is a 
 ^' reversion," and, Und, that a grant o? land.s without more, in an Act of 
 Parliament, conveys this reversion. I have tried in vain to find any 
 authority for this doctrine as applied to lands in a colony. The Re- 
 spondent, in his reasons against appeal, mentions no cases. Rernem- 
 ijering the commendation of my legal preceptor in favour of an old book, 
 which he said was the great storehouse of cases on the law of real 
 property in England, especially concerning tenures, I resorted to 
 Touc/istone, and tliis is what I find there : — "^ 
 
 " Grant of an estate iu being by the king must recite the previous 
 estate or else the grant of tlie new estate will be void." — Shep. Touch- 
 stone, p. 76. ^ 
 
 " Misrecital of previous estate in a deed may pass the reversion in 
 the case of a private person, but will be void in case of grant by the 
 king."— 76. 77 and 2j^5. 
 
 " By grant of land in [wssession reversion may pass, but by grant 
 of reversion land in possession will not pass." But this ai»plies to pri- 
 vate persons. — 76. 91 and supra. 
 
 In Cruise's digest, vol. 5, p. 422, 423, I find it laid down that 
 " where a reversion is vested in the Crown it could not be barred by 
 common recovery, which barred reversions and estates tail," and again, 
 " the Crown could not be deprived of any part of its property by ordi- 
 nary conveyances which would divest subjects. An Act of Parlia- 
 ment expressly declaring that the reversion shall be divested out of the 
 Crown is necessary." It is clear from ail the authorities that nothing 
 will be inferred or implied against the rights of the Crown. The 
 reigning sovereign cannot even abandon a prerogative unless author- 
 iz-jd by statute to do so. — {Qu^en vs. Alloo Paroo, 5 Moore, P.C. 303). 
 
13 
 
 In the casB of Minos, (Ploivrlen 330 b.,) it was laid down, ami lias been 
 followed as good law ever since, tliat if the king granted " lands and 
 mines therein eontainod " it passes only certain \iiiuea, and not mines 
 of gold and silver. The grantee will not take anything not expressly 
 mentioned. (See the King vs. Capper, 5, Price 217). And as it is an 
 equally well established rule that ro Act of Parliament can affect or 
 take away the Crown's prerogatives, unless by clear and express 
 words, I do not see any justification in law or logic for the claim 
 of the Respondent in this case that the words " all lands " in the 
 109th section of the B.N.A. Act, even if they were not explained 
 and limited by the succeeding words, include and weje intended to 
 grant away forever the prerogntive rights of the Crown, whether 
 you call it a royalty, a reversion, or a caducary suoci'ssion. 
 
 [The Court, having sat till half past four o'clo.k, adjourned till 
 Monday.] 
 
 Skcond Day. 
 
 Hon. Mk. Macdougall — (Continued) — On Saturday I was endea- 
 vouring to establish the position thiitthe hcreilitiiiy revenues ol the Crown 
 in the colonies, and especially in British America piior tol840, were i.nder 
 the direct control, management and disposition of the Crown, through its 
 direct representative in each colony ; that at the union of the two prov- 
 inces of Canada in 1840, the prerogative rights and the disposition of 
 the hereditary revenues of the Crown were still retained by its represen- 
 tative, subject to certain provisions and temporary arrangements contained 
 in that Act. Those clauses I read at length to your lordships, and they 
 form the basis of my argument in behalf of the continiiation of that right 
 under the now system created by the Act of 1867. I need not further 
 refer to the argument upon that head. The question turns now, I ap- 
 itrehend, upon the express words and the intentio'i to be collected from 
 those words, as used by the Imperial Parliament in the Act of 1867. 
 The first provision to which I drew your lordships' attention bearing on 
 this point is the 102nd section, in which '' all the duties and reveniies " 
 which belonged to the provinces before 1867, or, to quote the precise 
 language of the clause — " over which the respective legislatures had and 
 have power of appropriation," were transferred to and " shall" — the Act 
 declares — " form one consolidated revenue fund to be appropriated for 
 the public service of Canada." But for the exception in this clause there 
 would be no doubt, I apprehend, as to the present position of the hered- 
 itary revenues of the Crown in Canada. It would be clear — beyond 
 question — that these " revenues " as well as the " duties " arising under 
 existing laws from various sources, were transferred to, and intended to 
 form part of the Consolidated Fund of the Dominion, for the 
 purposes of the Dominion, and that conclusion would be all 
 the more evident from a consideration of the special object for 
 which this trausferrence was made. It was made in order that 
 the new Qovernment should have the means from the same sources as 
 before, and in pursuance of an existing contract, of providing for certain 
 
H 
 
 services, for certain Hulaiies, and for certain public establishments. Thnt 
 duty is transferred to the Dominion. The Imperial Act having cast 
 upon the Dominion the burden, of these services, it would be only reason- 
 able and natural to suppose that the framers of this Act would provide 
 the Dominion with the vruians, from the same sources as had previously 
 lixmished them with funds to meet those charges. But the excepting 
 clause, according to some authorities, raises the question involved in this 
 case : " Except such portions thereof as are by this Act reserved to the 
 respective legislatures of the provinces." I would call your lordships' 
 attention to the peculiar language of that clause. The Act does not say 
 that any revenues are reserved for appropriation by, or subject to the 
 control of the provinces or their local governments, but a portion is re- 
 served to the " legislatures " of the provinces. The legislatures are the 
 only power, newly constituted, to which this reservation is made ; there- 
 fore, it is a legislative power. Their power of disposition or control is 
 derived exclusively from their functions as a legislature. They must 
 pass a law ; they must dispose of whatever is under their control by an 
 act of legislation. It is to them in their corporate, legislative capacity, 
 that this ])ower of control is given by the Imperial Act. When we look 
 Rt the section of the Act which assigns to them their legislative powers, 
 we do not find, I contend, any sufficient words to convey to thom the 
 power to intermeddle with, or dispose of the hereditary revenues of the 
 Crown. As I pointed out on Saturday " the managemeut and sale" of 
 the waste lands of the Crown, or, as they are called in this Act, " the 
 public lands" (which, 1 contend, means the same thing) is given to them 
 legislatively. I'hey have power to make laws "respecting the manage- 
 ment and sale of the public lands, and tlie wood and timber thereon." * 
 Now, that is a limited giant. By its very language we see that a particu- 
 lar power is given to them and nothing beyond that power. They have 
 not had assigned to them by the Imperial Act the absolute dominion 
 over the subject matter. It is a qualified power, and, therefore, we have 
 to consider the history and circumstances of this new legislative creation 
 in order to see how far its legislative authority goes. I argued on Sat- 
 urday, briefly, the question with regard to the position of Lieutenant 
 Governors, I contended then, and I contend to-day, that the Lieutenant 
 Governor is not the representative of the prerogatives of the Crown in 
 this country, except in a very limited sense. The Lieutenant Governor 
 is appointed by the Governor General as other officers are appointed by. 
 him. He is a high official ; he has important functions unquestionably, 
 but among them is not included the power of representing the preroga- 
 tive rights of Her Majesty in respect to Her hereditary revenues. As 
 Lord Carnarvon stated in his despatch of January 7th, 1875, written 
 under the advice of the Law Officers of the Crown in England, he is a 
 " part of the colonial administrative staff." He is, therefore, subject to 
 
 ' , the direction of the Governor General, who is advised, in respect to 
 questions of Dominion import, by the Responsible Ministers of the 
 Crown in this country. He is appointed by the Governor General, not 
 by the Queen : he is commissioned by the Governor General, not by the 
 
 • Qneen ; he is instructed by the Governor General, not by the Queen ; 
 lie is subject to dismissal, under certain circumstances, by the Governor 
 General ; he is not subject to diamidsal by the Queen. And, if I am 
 permitted to refer for the purpose of my argument and in illustration -f 
 
15 
 
 my case to a recent political event, he is subject to dismissal in conse- 
 quence of a vote cf censure by the Parliament of Canada, even against 
 the opinion, so far as it could be ascertained, of the Governor General 
 himself. The correspondence in that cass and the action *^^hat folio .'ed 
 clearly prove that my construction of the Act in regard to the office of 
 the Lieutenant Governor, is the true one. We have not had a judicial 
 decision upon the point, but, so far as executive action and official opin- 
 ion are concerned, that case proves tliat the Lieutenant Governor is ro 
 garded as a local officer appointed by the Governor General, and in nd 
 manner subject to direction, approval, or disapproval by the Imperial 
 authorities. Ue is to all intents and [)urposes a local colonial officer and 
 nothing more. If that is so, it is absurd to suppose that he can, by virtue 
 of his office, in any manner undertake to represent or e.Kei*cise Imperial 
 functions, or dispose of the revenues resulting from the exercise ot the 
 prerogative rights of the Crown. If you could find in this Act language , 
 which showed a clear intention on the part of the Imperial Parliament 
 for convenience or for any reason of state, to clothe this officer, appointed 
 by the Governor General, with authoiity to deal with this particular 
 property or revenue, I would in that case admit, as the power of the 
 Imperial Parliament is supreme, that he was properly exercising the 
 functions of his office in collecting and disposing of the revenues result- 
 ing from tlie enforcement of the hereditary right of the Crown in the 
 case of esclieatn. From the evidence of intention which we find in the 
 Act itself, from the judicial commentaries and expositions it has re- 
 ceived, from the action of the Imperial Government through the Secre- 
 tary of State, from the action of the Governor General in this country, 
 • from the action of our ova Parliament — from all these, I contend, it is 
 established that the L' en tenant Govei'nor is a local and not an Imperial 
 officer, and can in no w,iy intervene in proceedings for the recovery of 
 escheats. On this pniut I would call your lordsaips' attention to the 
 fact, which I did more at large on Saturday, that in the case of the civil 
 list in England, the hereditary revenues ot the Crown are surrendered to 
 Parliament in consideration of a permanent civil list ot fixed amount 
 during the life of the sovereign^ In the case of William IV, and in the 
 case of Her Majesty (and those Acts ai-e still in force in Great Britain, 
 and as far as they apply are in force in the colonies of Great Britain) we 
 find that Parliament expressly reserved to the Sovereign, or in other 
 words to the Crown, the right as against Parliament and the Govern- 
 ment of the day, in respect of these revenues, to grant escheats of this 
 description to relatives of the deceased — to those who were not, under 
 strict construction of law, entitled to enforce their rights as legiti- 
 mate heirs. That right to evince the benevolent disposition of the 
 Crown towards the natural relatives of a deceased pei-son who may have 
 left his property subject to escheat, is reserved in express terms, and, in 
 order to prevent any possibility of misconstruction, it is reiterated ex 
 viajori cautela that the reservation is made to the intent and for the pur- 
 pose of enabling the Crown independently of those Acts, and of the dis- 
 position that was apparently made of all the hereditary revenues, to deal 
 with this particular class of revenues as it should please the Royal will. 
 The same discretion and power must be held to remain in Her Majesty 
 in respect to these revenues in the colonies, for that Act, Ist and 2nd Vic, 
 cap. 25, relaties to the colonies and foreign posttessions of the Crown, &% 
 
16 
 
 well as to Great Britain ami Ireland. The construction that in siigjjoHted 
 respecting the Union Act of 18t>7, would utterly destroy the object and 
 purpose of that reservation of authority in Her Majesty with respect to 
 escheats in Canada. It would place that kind of proi»erty which is ex- 
 pressly reserved to the Crown in England, under t^ie control absolutely 
 of whom 1 Of the local assembly, the provincial representatives of the 
 people. And how are they likely to exercise that control ? What does 
 this very example show of the dispositioi: of such a body 1 In this case 
 about $150,000 worth of private property belonging to the deceased, Mr, 
 Meroer, accumulated by himself, not resulting from free grants or any- 
 thing of that kind— which might, perhaps, have justified a feeling in the 
 public mind that his property ought to revert to the public for public 
 purposes — but the private earnings and accumulations of this pei-son, are 
 taken from the possession of his own son "by the Local Government, by 
 the vote of a bare majority of the Local Legislature, and appropriated to 
 public uses. The local officials, with a voracity that was revolting, 
 seized it for the purpose of gaining credit to themselves with their par- 
 tizans, and, ignoring the moinil, and, as I contend, the rightful claims of 
 the admitted son and four grand-children of this deceased person, ai)pro- 
 priate their patrimony to the use of abandoned women, to the erection 
 of an asylum, a reforraatorv for prostitutes — and, adding insult to in- 
 jury, with cruel sarcasm, they gave this reformatory the name of 
 Andrew Mercer! Now, my lords, I say that, looking through these 
 Imperial statutes and the reports of transactions of this kind in Great 
 Britain, we find that Her Majesty has never acted in that spirit or iu 
 that manner in dealing with e.scheated property. I remember a 
 case, and no doubt some of your lordships have met with it, 
 which happened two or three years ago in England, where a person 
 was killed by a railway accident. He hap{)ened to be without 
 heirs. His estate consisted of personal pr iperty. I think he lived in 
 the Town of Bristol, and the property was taken possession of a^ an 
 escheat to the Crown. The money was, by oixler of Her Majesty, appro- 
 priated for some public purpose in the town in which the man had lived. 
 It was appropriated for the benefit of his neighbours and friends. 
 Under the provisions of the Civil List Act,>0,nd under the influence of 
 those moral considerations which have induced the Crown to act leni- 
 ently and unselfishly in mattera of this kind, the money was given in 
 that case, not to relatives, because the man had none, but it was 
 devoted to public purposes in the town in which he had accumulated 
 his property. It was not [>ermitted to reach the public treasury. I 
 refer to that case as showing the spirit which prevails, and the policy 
 which directs in the disposition of such properties in England, and that 
 the representative of Her Majesty in this country will, presumably, 
 exercise this mild and generous prerogative power in dealing with pro- 
 perties of this kind which legally come to the Crown in Canada. The ar- 
 gument of convenience and inconvenience is, I perceive, made use of by 
 the respondeuts in this case, as if some weight ought to be given to it in a 
 coui-t of law. I think, therefore, 1 am justified in directing your atten- 
 tion to the public policy which is involved in this question, in view of 
 the uniform practice of the Imperial authorities. At all events, it will 
 operate to this extent — that it will cause your lordships to look into the 
 matter with great care to discover the meaning and purpose intended. 
 
17 
 
 and the conditions imposed, in the transfer cf these revenues to Old 
 Canada in 184(>, and will sustain my contention that they were trans< 
 ferred to the jurisdiction and control of the Dominion Parliament by 
 the Act of 1U67, under the same conditions. Now, I will call youir 
 lordships' attention, at this stage, to a case decided in this .urt, which 
 involved the question of authority to exercise the prerogativo right of 
 the Crown under our present constitution : I refer to the case of Lenoir 
 \s. Ritchie, and, although it bears upon another branch of the preroga- 
 tive, yet the docttines propounded, and cases cited by some of the 
 learned judges who delivered judgments in that case are, I think, doc- 
 tripes and authorities which are applicable to the question which is now 
 under your consideration. On page 610 of the report of the tase, Bu- " 
 preme Court Reports, vol. 3, I find Hon. Justice Henry made these ob- 
 servations : — 
 
 " The Local Legislatures are now simply the creatures of a 
 statute, and under it alone have they any legislative powers. The Im- 
 perial Parliament, by the Union Act, prescribed aud limited their juris- 
 diction, and in doing so has impliedly but virtually and effectually pro- 
 hibited them from legislatiug on any other than the subjects comprised ! 
 in the powei-s given by that Act. The right of the Imperial Parliament 
 when conferring legislative powers on the Local Legislatures to limit the 
 exercise of them cannot be questioned, and any local act passed beyond 
 the prescribing limit, being contrary to the terms of the Imi>eHal Act, 
 must necessarily be ultra vires." , 
 
 Then, on page 613, the question of the assent to, or acquiescence of 
 the Crown in, local acts is discussed. It may be argued on the other side 
 that because an Act of the Local Legislature respecting eucheatrt was, by 
 a kind of agreement between the then Minister of Justice and the local 
 Attorney General, allowed to go into operation, or speaking, more cor- 
 rectly; was not disallowed by the Goveraor General, thtfro is a kind 
 of assent or acquiescence by the Crown 
 
 Mil. Blake — I do not intend to argue that. 
 
 Mb. Macdougall — My learned friend says he will not argue that^ ' 
 but I shall read the passage I have marked, which deals not only with 
 that })oint in the case, but also with the doctrine which I am endeavour- 
 ing to sustain as to the position of Local Legislaturus. It is a» 
 follows : — 
 
 " As the Sovei'eign is the source of all honours and dignities, it i» 
 argued that the royal assent to the Act, however otherwise ultra vires, 
 nuisc be taken as a legislative declaration of the waiver and transfer- 
 rence of the Sovereign's functions. Several difficulties, however, present 
 themselves : the first is that by such a conclusion the Act of the Im- 
 jterial Parliament would be extended, if not in part re{>ealed ; second, it 
 the Local Act be ab initio void, it cannot become law merely by the as- 
 sent of the Sovei'eign. It might as well be claimed that an oixjinance of 
 a City or County Council, of the same t«nor, giving power to a Mayor 
 or Reeve to appoint Queen's Counsel, if assented to by the Queen, would 
 be valid. By the provisions of section 90 or' the Imperial Act, the 
 Governor General and not the Queen assents to local Acta made in hi& 
 name as pi-ovided. The Lieutenant Governors are appointed not by th» 
 Queen but by the Governor General in Council. It cannot therefore be<- 
 successfully contended that the Queen has a-ssented to the local Act ia 
 2 
 
/ 
 
 :' ' ■/ 18 
 
 question ; nor can it be with greater success conteniled thit by assent- 
 ing to it, the Governor General had any power in doing so to interfere 
 with the royal prerogative in question." 
 
 I am sorry that I am not sufficiently familiar with the French lan- 
 guage to read the passages in the judgment of Hon. Justice Fournier 
 liearing upon the same point, but the judgment of Hon. Justice Tasche- 
 reau contains two or three passages to which I shall take the liberty of 
 directing yoi\r lordships' attention. The fiiut which I have marked in 
 the report (page 619) is the following :-— 
 
 " If this statute is taken as vesting the Lieutenant Governor with 
 Her Majesty's prerogative lights of appointing such Queen's Counsel, I 
 hold, then, that it is ultra vires, and an absolute nullity. I need 
 hardly add that the Sovereign has this prerogative of conferring honours 
 and dignities over the whole of the British Empire, and that by the B. 
 N. A. Act, the Crown has not renounced or abdicated tliis nrerogiitive 
 over the Dominion of Canada, or any part thereof." 
 
 My learned friend will argue that the B. N. A. Act gives Local 
 Legislatures the power to legislate on Her M^ijesty's prerogatives. I 
 ask him to point out which part of section 92 — which sub-section or 
 ■clause — authorizes the legislature, as a legislature, to interfere with or con- 
 cern itself about the prerogatives of the Ciownl The learned Judge 
 continues : — • 
 
 "Under the rule that Her Majesty is bound by no statute unless 
 
 especially named therein, und that any statute which would divest or 
 
 •abridge the Sovereign of his prerogStivos in the slightest degi-ee does not 
 
 ' extend to or bind the King unless there be express words to that effect, 
 
 it remains in Her Majesty and in Her Majesty alone, as the Imperial 
 
 Statute does not specially give it to the Legislatures." (p. 62 1). 
 
 The citation there is from Chitty on Prerogatives, 383. In look- 
 ing over the, cases bearing upon this question, I have met with a judg- 
 ment pronounced by the Judicial Committee of the Prify Council in the 
 case of Theherye vs. Landry, \n which that doctrine is reaffirmed, although 
 the court in that case distinguished as to the subject matter, and refused 
 to advise the exercise of Her Majesty's prerogative right to hear api>eals. 
 As it is the latest decision on the point, by the highest court in the enr- 
 pire, I ask your lordships to take a note of it. It will be found in 
 Appeal Cases, vol. 2, Council of Law Reports. 106 : — 
 
 " Their lordships wish to state distinctly that they do not desii-e to 
 imply any doubt whatever as to the general principle that the prerogative 
 of the Ci-own cannot be taken away, except by express words, and they 
 would be prepared to hold, as often has been held before, that in any 
 case where the prerogative of the Crown has existed, precise words must 
 be shown to take away tl at prerogative." 
 
 This is a judgment upon the British North America Act, and sup- 
 ports my contention that when I have shown that the prerogative as to 
 escheats " existed" in this country prior to 1867, precise words must be 
 found in the Union Act of 1840 and in the Confederation Act of 1867 
 to take away that prerogative. Now, my lords, thei'e are no such words 
 in either of these Acts. There is another point with reference to tha 
 Act of 1867, which I omitted to notice on Saturday in consequence of 
 tho order of my argument being somewhat disturbed, but to which I de- 
 sire particularly to call your lordships' attention : I'he first sub-section 
 
19 
 
 assent- 
 terfere 
 
 ch laii- 
 'ournier 
 Taache- 
 jerty of 
 I'ked ill 
 
 lonoui-H 
 
 tlie B. 
 
 rogiitive 
 
 of the out section of the B. N. A. Act gives to the Dominion Parlia- 
 nient — but I may an well read the intro»luctory wordH to justify the 
 inference I intend to draw from them : — 
 
 "It shall be lawful for the Queen, by and with the advice of the 
 Senate and House of Commons, to make laws for the |)eace, order and 
 good goveinmeiit of Canada in relation to ail matters," — no more com- 
 prehensive language could be used than ttiis. But there is one excep- 
 tion — " to all matters not coming within the classes of subjects by this Aot 
 assigned exclusively to the legislatures o'. the provinces." 
 
 Now, ray lords, it is the plain meaning of the language used by the 
 Imperial Parliament in this section, that the Dominion Parliament should 
 have full, complete, and, so far as a subordinate legislature can have, 
 absolute authority to deal with every motter of legislation in Canada, 
 except those special matters that are assigned to these local bodies. The 
 whole field of legislation, the whole scope of legislative power, is placed 
 in the hands of the Dominion Parliament, and may be exercised over 
 the lives, liberties and pro|)erty of the people of this Dominion, except in 
 those specially provided cases in which this subordinate sectional legis- 
 lative power is conceded to the Local Legislatures. And to impress 
 still moi-e strongly and clearly on those who are to read this Act, and the 
 courts which are to interpret it, that they are not to question this gen- 
 eral exclusive authority of the Dominion Parliament to legislate upon 
 every matter concerning the i>eople under its jurisdiction, except in those 
 special cases in which certain questions are expressly assigned to pro- 
 vincial authorities, it is i)rovi'Jed : — 
 
 " 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 exclusive legislative authority of the 
 Parliament of Canada extends to all matters coming within the classes 
 of subjects next hereinafter enumerated." 
 
 And certain subjects are then enumerated for the purpose of ex- 
 planation and suggestion to people about to be placed under a new con- 
 stitutional system. It might have been inferred from the enumeration 
 of excepted matters, if this first enumeration had been omitted from 
 the Act, that the powers of the general ])arliament would after all be 
 largely limited ; but with this enumeration they would see at a glance 
 the great multiplicity of matters upon which the Dominion Parliament 
 have unquestionably the right to legislate. And for fear that the 
 specification of particular powers might, according to a well known 
 rule, operate as a restriction of the Dominion Pai'liament, the 
 following is added : — 
 
 "And any matter coming within any of the classes of subjects" — . 
 not the particular subjects, but the " classes " of subjects — " enumer- 
 ated 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 legisla- 
 tures of the provinces." Although in the ennmoiution of local powers 
 it might seem that some of those assigned to Parliament were included, 
 you are not to include them. The very first subject over which the 
 Dominion Parliament is given exclusive authority is " the public 
 debt, and," as I intaqjolate, tht puhlie " property." " The public debt and 
 property " must be read as if the word " public " had been inserted before 
 
20 
 
 I ' 
 
 " property ," became no other property can be intended. That is tl»e 
 power with which tlie Dominion Parliament is endowed. It includes 
 the " public property " of every kind which is not expressly assigned to 
 the provinces. The 102nd section, as I have pointed out, covern 
 everything so far as duties and *' revenu4<s " are concerned. " Tlie |)Ower 
 to manage and sell the waste lands which were under provincial juris- 
 diction at the union, and collect the monifs or " suras " in resjiect of 
 previous sales which were then uncollected, were under 
 the 109th section, given to the jHovinces. So tliere is no difficulty 
 about that. Now, that j)0wer of legislation conferred upon the 
 Dominion Parliament by the Isc subsection, taken in connection with 
 the general authorization in the 91 St section, and taken in connection 
 with the 102nd section relating to " all duties and revenues " seems to 
 me, my lords, to give to the Dominion Parliament, beyond any question 
 whatever, the jwwer of dealing with the subject matter involved in this 
 case, unless it is found to have been conveyed or transferred to the 
 Local Legislatures by some other section. Now, with reference to that 
 contention, I shall have to examine with some detail the judgments in 
 the fij-st place, of the Queen's Bench of Lower Canada, beforo whom this 
 point was first debated, and by,wliom it was first decided. In the Fraser 
 case to which I refer, it appears that in the first instance the question 
 came before the learned judge who now so worthily fills his place 
 upon this Supreme Court Bench, Hon. Justice Taschereau. The judg- 
 ment given by him in that case affirmed the jurisdiction of the 
 Dominion Parliament and the Dominion Government in matters of 
 escheat. That was appealed against, and the case came before the Court 
 of Appeal of Lower Canada. As I pointed out on Saturday, the learned 
 Chief Justice of that Court admitted that he found nowhere in th« B. 
 N. A. Act of 1867, any direct and expross transfer of lands or revenues 
 escheating to the Crown in Canada, to the Local Legislatures. I have 
 made ncces of a few points of his argument : — 
 
 " All rights and revenues of the several provinces are by section 102 
 transferred to the consolidated fund of Canada, except those reserved by 
 that Act to the provinces " (Quebec Law Reports, vol. 2, p. 238). fie 
 admits that property derived from escheats would, therefore, belong to 
 the Dominion Government, "unless specially reserved," or "unless it 
 came within the category of rights received in virtue of the powers oon- 
 ferred by thw Act. " 
 
 He admits that none of the sections distributing assets, viz, sections 
 107, 108, 109, 113 and 117, together with schedules 3 and 4, reserve 
 escheats specially to the provinces. But he contends that as the Pro- 
 vincial Legislatures may " enlarge or curtail the right of escheat by ex- 
 tending or restricting the class of persons who may inherit it," and so 
 abolish escheat altogether, they may collect the revenue and appropriate 
 it. 
 
 My learned friends will rely upon that judgment It was followed 
 by Yice-Chancellor Proudfoot in this case, but he took good care not to 
 commit himself to the argument further than was necessary. He says: 
 " The learned counsel made an able argument to show that escheats be- 
 long to the Consolidated Revenue of the Dominion and not to the Local 
 Legislatures, that so far as thei-e is any power in Canada of appropriating 
 these revenues under Imperial Acts, the Federal Parliament alone can 
 
91 
 
 <lertl with thetn ; that the CMtml revenues of the Crown in Ontario (aa 
 (liiitinct from territorial) are Fedenil revonueH applicable to Fedeml pur- 
 poses, and payable to the Receiver General of the Dominion. The 
 (|uefltIon has been the subject of judicial deciuion in the Co\irt of Queen's 
 Bench in Quebec, on appeal from the Superior Court at Kamoiiraska, in 
 II case in which the Attorney General for Quebec was appel- 
 lant and the Attorney General for the Dominion was ruspondent, 
 and it was determined tint the escheat accrued to the benefit of the 
 Province of Quebec, and not of the Dominion. While not absolutely 
 bound to follow that decision, yet, considering that it was the unanimous 
 decision of judges of great eminence of one of the Confederate provinces 
 sitting in appeal, and construing the same acts and legislative provisions 
 now brought into question, it would be unseemly in me to venture to 
 give a contrary opinion, ajid I have, therefore, concluded to follow that 
 decisior until it be reversed by some higher tribunal, without endeavour- 
 ing to co)i8true the virions acta tfuit were referred to." 
 
 I cannot gather from the judgment of Vice-Chancellor Proudfoot 
 whether he approved of it as a correct interpretation of the law or not, 
 but at all events he assented to it in the language I have read. Then, 
 the Court of Appeal, having referred to the jncgment of the court in 
 Lower Canada, although differing from that couit in some of the 
 grounds on which they base it, also follow that judgment. It becomes 
 necessary, therefore, to review ccrefully the arguments and ])ositions of 
 the Queen'fi Bench. I I'eturn, for a moment, to the Chief Justice. 
 He argues : — 
 
 ■^ " From what I have already said, escheats seem to come within 
 that class of revenues which are derived from tho exercise of the 
 powers specially conferred on the Provincial Legislatures. If these 
 legislatures have the power to enlarge or curtail tho extent of this right 
 by extending or restricting the range of parties to whom the estate of 
 deceased persons may be transmitted, or if they can abolish it altogether, 
 then the existence of this right to escheats is sultject to the authority 
 of the Provincial Legislature, and the i-evenuo derived from it is col- 
 lected in virtue of the powers specially conferred on them by the Act, 
 since it depends upon their action whether this source of revenue shall 
 be maintained, and to what extent, or whether it shall be abolished 
 altogether, (p. 238.) " 
 
 That is the argument of the learned Chief Justice of the Court 
 of Queen's Bench. It does not commend itself to my judgment. He 
 draws aa inference from a proposition of Jaw which has not yet been 
 decided — which may not be the proper interpretation — which, in fact, 
 the judges of the Court of Appeal in Ontario have disputed. They 
 rjfuse to agree to that proposition. They declare that he is begging the 
 question when he takes that ground — for it is not in the statute 
 on which he bases his judgment. To that argument I answer, that the 
 Parliament of Canada, having exclusive power to legislate on " all mat- 
 ters coming within " the subject of Marriage and Divorce (sec. 91, 
 sub-sec. 20), the Pi-ovincial Legislatures are excluded from the matters of 
 heirship or inheritance which are a consequence uf the marriage relation. 
 " The accessory right foUovys the principal " (Co. Litt, 152, a.) " The 
 incident shall pass by the grant of ilie principal." (Broom's Maxims, 
 203). In Stephen's Commentaries, vol. 2, p. 279, we are told that 
 
2^; 
 
 " the doctrines which relate to the matrimonial relation, depend, not 
 exclusively on the general la^v of the realm, but partly on the canon 
 law as administered in the ecclesiastical courts." 
 
 I cite that passage because of the remark of one of your lordships 
 on Saturday, that this case was possibly included under the 
 term " civil rights " as part of tha civil law. My opinion is that the 
 laws respecting marriage and inheritance were, in their origin, canon 
 law — ecclesiastical law — and we have to regard that fact in the history 
 of the case, when we come to place an interpvetation upon any terms 
 found in the Act of 1867, which seem to endow the legislatmes of the 
 provinces with power over any particular subject, which has been 
 assigned in general terms to the Dominion. We must see that it comes 
 strictly within the context as well as the text of the Imperial Act. The 
 " subject " of marriage, and the rights which flow from it, would not 
 therefore come within " property and civil rights in the province " under 
 a strict construction, even if they had not been assigned to the Dom- 
 inion by section 91. 
 
 Then, Mr. Justice Ramsay delivers a judgment in which his lord- 
 ship admits that escheats in the provinces are legally vested in the 
 sovereign. He complains of the difficulty that results from double 
 enumeration of subjects in the British North America Act. 1 think if 
 he had given his at:ention more closely to the introductory clause of the 
 91st section, and the other sections bearing on the matter, he would not 
 have found so much difficulty as he appears to hav met with. He 
 confounds the '' duties and revenues" mentioned in the 102nd section 
 with the public property referred to in the 117th section, and makes con- 
 fusion worse confounded by attempting to reconcile the earlier and later 
 sections by reference to the 109th section. The " public property " 
 referred to in the 1 17th section consists of gaols, coui"t houses, asylums, 
 etc., not disposed of by other sections of the Act, nor included in the 
 schedules. He admits that th., word " Royalties " must not be used in 
 its " largest sense," and then makes it include all the minor prerogatives 
 of the Crown, confessing at the same time that the conclusion he arrives 
 at is open to objection. In a foot note, which I presume he has himself 
 supplied, he expresses an opinion that the use of the title " Governor 
 General " is a remnant of former ideas, themselves confused, and thinks 
 the use of the Queen's name in sections 72 and 77 (75 he probably 
 means) is an uncorrected error. 
 
 I thii those who were concerned in the framing of that Act and 
 in the discussion of it before the public in its original form, as well 
 as those who explained it to the Imperial Parliament, will not 
 agree with his lordship in his construction or his criticism. 
 
 Mr. Justice Sanborn begs tlie whole question in his judgment. He 
 savs : — 
 
 " Escheats of the nature of the one in question are subject to the 
 control of the Provincial Legislatures." — (p. 245.) 
 
 He makes the same assumption and draws the same inference in 
 regard to the power of the Local Legislatures to alter descents, as the 
 Chief Justice. He says : " It is competent for the Parliament of 
 Quebec to establish the law relating to descents," etc., etc. Overlooking 
 the 91st section, and ignoring the 102ud section, he declares that " the 
 public property given to the Dominion is given in express term's (section 
 108) and specified in the 3rd schedule." 
 
23 
 
 |d, not 
 
 [canon 
 
 Iships 
 the 
 Jat the 
 
 jcanou 
 listory 
 (terms 
 k the 
 been 
 
 I have called your lord.ship's attention to the fii'st sub-section of the 
 Gist section, in which legislative power over public property, generally, 
 is given to the Dominion Parliament. So far as the enumeration of 
 certain propertiej of the Dominion in the third schedule is concerned, 
 the rule expressio unius excluaio alttrius does not apply. [ notice that 
 that argument has been used elsewhere. If anything is attempted to 
 be made of it here, I would call your lordship's attention to the fourth 
 schedule, which enumerates provincial property, from which the same 
 inference may be drawn, for the one is as suggestive of exclusion as the 
 other. Mr. Justice Sanborn does not say, however, which Government 
 has the right to act for the Queen, or if both have. That question is 
 put on one side. Now, with referenco to the judgment of the Court of 
 Appeals for Ontario, it is unfortunate that we have not the advantage 
 of having before us the judgment of the Irte learned chief justice of that 
 court, becauae every lawyer in Ontario and in all the other provinces, 
 who enjoyed the acquaintance of that learned judge, would say at once 
 that his opinion and his authority upon a question of this chanictev 
 would deservedly carry very great weight. IJnfortunateiy, by an un- 
 timely event, he has been removed from the bench which he adorned, 
 and his judgment in this case, if formally prepared, is not accessible. 
 It is not printed in the case, for it was'not available to counsel or solici- 
 tors in the preparation of the appeal books. We have only the judg- 
 ments of Mr. Burton and Mr. Patterson, two of the judges of the Court 
 jf Appeal, and I shall have to direct your Itrdships' attention for a few 
 moments to some of the positions which they have taken. Mr. Justice 
 Burton begins by laying down this proposition : — 
 
 •• I find no warrant in the Act for the assertion so frequently made 
 that all lights or property not expressly given to the Province pass to 
 the Dominion ; on the contrary, I take it to be clear that the Provinces 
 retained all property and rights which were previously vested in them 
 under the constitutional Acts then in force, except those which by the 
 Confederation Act are taken from them, and ti'ansferred to the 
 Dominion." 
 
 Now, I contend his lordship has misconceived the language, policy 
 and intention of the Confederation Act. I feel sure that your lordships 
 will agree that the very opposite interpretation is the clearly expressed 
 intention of the Imperial Parliament, viz. : that jurisdiction over every 
 possible subject of legislation is, in general words, assigned to the Dom- 
 inion Parliament, and that the exception, so far as it extends, is some- 
 thiug taken or carved out of that power, and is all that is given to the 
 Local Legislatures. The entire legislative authority, as it existed in the 
 various provinces before Confederation, was dealt with by the Imperial 
 Parliament. No one can doubt the power of the Imperial Pailiamenc 
 to have deprived Canada (so tVir'as an Act of Parliament could do it) of 
 representaive gov<^rnment altogether. It might have converted, or 
 reconverted, our provinces into Crown colonies, with some new 
 experimental system of colonial government, as a matter of 
 mere legiplative authority. Probably it would not have been well 
 received. They might have found Boers in Canada, us well as 
 in South Africa ; but, as a matter of law — as a matter of argument 
 before a court of law — I contend that the whole sul>ject w.ts completely 
 within th9 control of the Imperial P-irliamsnt. They could assign suclv. 
 
* 
 
 i 
 
 i! 
 
 ■powers of legislation for the future as tliey pleaseiJ. without respect to 
 the " rights " of the past. There were no rights in the question which 
 a court of law can recognize. The people of the four provinces, united 
 together in the new form, were endowed with even greater rights and 
 larger powers than before, but the legislative control and direction of 
 . affairs were placed under two distinct legislative boilies. The greater 
 power was that of the Dominion. The full and ccmiplete exercise of 
 that power was vested in the Parlianit^nt of the Dominion, but certain 
 geographical distinctions were retained, and the provinces were allowed, 
 under the machinery provided in the Act, to legislatft upon certain 
 specified local subjects as a raattor of convenience. Now, I cannot 
 understand wliat the Inarned judge mean? when he talks about political 
 rights which rdmnined in, or belonged to the Province of Ontario. What 
 rights could Ontario have had ] There was no sucjh political entity or 
 corporation ; tliere was no such province in a li^gal sense. Tt was a 
 geographical expression. It is true you will find that our statutes from 
 1840 down, were applicable, some to Lower, and some to Upper Canada. 
 The old distinction was kept up to limit the operation of certain statutes in 
 consequence of local laws that had previously existed in the provinces. 
 So far as the people of Lower Canada are concerned, I admitted on Sat- 
 urday and I admit to-day, that from the jjcculiar circumstances under 
 which the French inhabitants of Quebec were dealt with after what the 
 English call the "conquest," and they call the "cession," certain privi 
 leges and rights were reserved or secured to them by a so called treaty. 
 But those rights were not secured to Quebec according to her present 
 limitary lines. They were conceded to tJie French population who were 
 scattered at that time over the whole northern part of this continent. 
 The cession was not restricted to the Province of Quebec as bounded at 
 present. These boundaries were establishe<l under English jurisdiction ; 
 the French never bounded their province on the north; tlierefore, when 
 rights were reserved to the French inhabitants of this colony, they ex- 
 tended to tljo people, and not to any geographical or territorial circum- 
 scription or boundary. So, the pretence that there ever was any grant 
 or reservation of particular rights to British immigi-ants who came to 
 Canada since the cession, and are now living within territory formerly 
 part of the Province of Quebec, is altogether unwarranted in the history 
 or reason of the case. But starting out with that wrong assumption — 
 that mistake as to the very origin and foundation of tiie legislative power 
 of the provinces and of the Dominion — I am not suiprised that his lord- 
 ship falls into error in that, as well as in other respects. He says : — 
 
 " The term ' all lands ' must be held to include any inttsrest which 
 the province then held, or was entitled to in the lands, including any 
 reversionary interest, or interest incident to the tenure." What lands ? 
 Those which belonged to the i>rovince " at the union." Did Mercer'.s 
 lands belong to the province in 18671 Ce;tainly not. The learned 
 judge admits that if he is mistaken on this point, then " no disposition 
 whatever is made of such interest, and it will remain in Her Majesty." 
 His lordship would seem inclined to adopt the role of legislator, and 
 not of judge, in this part of his judgment. However, he refuses lo fol- 
 low the Court of Queen's Bench in the reasons and grounds ol their 
 judgment. Ho says : — 
 
 "I prefer to place my judgment on the ground I have indicated 
 ■above, rather than that adopted "by the Court of Appeal in Quebec." 
 
3T/-,:'- 
 
 25 
 
 Now, so far as I understand the judgment of Mr. Justice Burton, 
 !t would aeem that he i-ests his conchision as to the ownership and des- 
 tination of this property chiefly, if not altogether, upon his interpreta- 
 tion of the nature of the estate in escheats. The doctrine that it is a re- 
 version, in the ordinary sense, seems to be relied \ipon both by Mr. Jus- 
 tice Burton and Mr. Justice Patterson, and it is also stated in the reasons 
 against appeal, by the learned gentlemen who prepared the case, that 
 they rely upon that doctrine of reversion. I have just this to say 
 with respect to that theory : it does not apply in this case. I am not 
 going to occupy the attention of your lordshipp ,irith a discussion upon 
 tenures, because it siems to me the feudal relation is not involved 
 in the argument here. I did go into that question at some length 
 before the Court of Appeal. I had cai'efuUy examined the authorities, 
 because it was a matter of some historical as well as legal interest. 
 The origin of feudal tenure, the mode in which property was 
 transferred under that tenure, the relation of lord and tenant, the rights 
 of tenants, and the successive changes made by Parliament as to these 
 rights ; first, their right to sell ; secondly, their I'ight to devise by will, 
 and thus put other tenants in their places, without the lord's consent, 
 destroying thereby the right of escheat in the lord to a great extent ; 
 and, lastly, the right of the Crown in the absence of a mesne lord : all 
 these questions were and are very interesting as a historical study, but 
 it seems to me they have very little weight in this discussion, because 
 in Canada we have a tenure the character, incidents, and bearings of 
 which, are well understood even by laymen, from the frequent discus- 
 sions and expositions in the courts — I mean free and common Soccage. 
 That was established in Upper Canada in 1791 — and -wh have to deal 
 with this question in the light of doctrines applicable to the tenure of 
 free and common Sopcage. I contend, as a matter of plain, elementary 
 law, that it is neither in accordance with modern decisions nor the reason 
 of the thing, to say that when the Crowi grants waste lands in a colony to 
 private persons, or authorizes a Colonial Legislature to grant them, the 
 rights of the Crown as nltimus hcnres, or if you please, the reversionary 
 j'ight of the Crown arising from escheats, is granted at the same time. 
 Tliat sovereign right is not gi'anted ; that is the "seigniory " which is 
 always reserved. Let us suppose it to have been granted once in a par- 
 ticular case, and that a subsequent owner ha)>pens to die intestate and 
 without heirs, what becomes of thao seignioiy % The Crown having 
 granted tha reversion cannot resume it. It has ceased to exist. There- 
 fore, the I'eversion here is not that liind of reversion whic!i 
 lies in grant. Lord Mansfield said, in the case of 
 Jhtrges/t vs. Wheatc, that it was a cadiicary succession, a 
 " sort of reversion," that is to say, it reverted, it came back to the lord 
 or king, but in contemplation of law it wis not the reversion which is 
 granted, or may be granted by the owner of a prior estate, if he uses 
 language to show that he intends to gi'ant tli3 reversion. It is not a 
 part of the inheritance, it is something which springs into existence by 
 accident, and is no part of the original estate or fee, which is always 
 vested in some person, and may descend successively through unending 
 genemtions. Therefore, I contend that the judges of the lower courts 
 treating it as a part of the inheritance, known as a reversion, have 
 entirely mistaken the fundamental principle on wliicli the doctrine of 
 
 ■'«• 
 
 X 
 
2d 
 
 re^ei-sions is based. In the ni-esent case the lantl coit*es to the Crown 
 as the last heir. In the colonies that now form pare of the United 
 States, as well as these provinces, and also in India, the Crown has always 
 been treated as tlie ultimate heir, the person to whom property descends or 
 T)a8ses that is vested in no one else, and it is by virtue of that doctrine that 
 this property fell to, and is now vested in Her Majesty. It is not vested 
 under any doctrine of reversion found in the old books with reference 
 to feudal tenure. Perhaps it will be as well at this point to give your 
 lordships the authority on which I rely, and which, in my judgment, is 
 conclusive. I quote from Cruise's Digest, edition of 1835, vol. 3, in 
 which the law on this subject is summed up with great clearness. 
 The citation will be found at page 397, "An escheat is a casual profit. 
 When the power of alienation was introduced the change of tenant 
 changed the chance of the escheat but did not destroy it, and when a 
 general liberty of alienation was allowed without consent of the lord, 
 this right became a sort of caducary sticceasion, the lord taking as 
 ultimm hm'ea" The same doctrine is laid down by Lord Mansfield in 
 Burgess vs. Wlieate, 1 Wm. Blackstone, 163. The Master of the Rolls 
 in the same case said, "The difference of taking by prerogative 
 and escheat (i.e. feudal escheat) is material, and Lord Hale makes the 
 distinction." 1 Wm. Black., 144. 
 
 That expresses very clearly the doctrine with respect to title by 
 escheat since the abolition of military tenures. In Ne.i' Brunswick it 
 was held, on the authority of the law ofiicers of the crown, that the wild 
 lands of that province belonged to the Crown, ^ure coronm, and were 
 disposable by the representative of the Crown, and not by the Provin- 
 cial Legislature. (Forsyth, 156.) I hold that the waste lands in Canada 
 are still Crown lands in the same sense, and that only the revenue has 
 been granted to the provinces', and only " the management and sale " 
 entrusted to their legislatures. The pretence that this land, which has 
 come to the Crown by the accident of escheat, was included or contem- 
 ])lated in the word "lands," as used in the 109th section, cannot be sus- 
 tained as a matter of law, in my humble opinion, for a single moment. 
 That it was not conveyed or transferred under the word " royalties " I 
 hope I have succeeded in convincing your lordships. The learned 
 judges of the Court of Quean's Bench were misled by Brown's Law 
 Dictionary. Their attention Avas not directed to the use of this word 
 in the provincial statutes. Upon that point I would direct your lord- 
 ships to an opinion expressed in another place by a distinguished law3"'r 
 and politician. I refer to the Premier of this Dominion, who was one 
 of the framers of the B.N.A. Act. It will be found in the House of 
 Commons Debates for 1880, page 1,185. In the course of a debate on 
 tjie fisheries award, he said : — 
 
 " The argument of my hon. friend is based principally on the lan- 
 guage used in the British North Ai^ierica Act, which provides that all 
 lands, mines, minerals and royalties belonging to the several provinces 
 at the union, shall belong to the several Provinces of Ontario, Quebec, 
 Nova Scotia and New Brunswick in which the same are situated or 
 arise. Fisheries are not lands, mines, or minerals, nor do they come 
 within the term "royalties." We know what " royalties " mean. My 
 learned friend has quoted some authorities showing that sovereignties 
 and regalities are the same things. But "royalties " has a distinct sig- 
 
27 
 
 nification at law. The word in this application ami its evident vise in the 
 B. N. A. Act is limited by the ordinary use and signification of the 
 term. In its large or general sense the vord " royalty " signifies all 
 that belongs to the sovereign ; in its colloquial sense in the English 
 language, " royalty " means all that pertains to the royal person, dig- 
 nity, rank and prerogative. In the legal sense it arose in this way ; we 
 know that in England, no mt, ■'■ '• who may be the owner of th3 soil, still 
 under the law of England the lOyal mines mean those mines of gold and 
 silver belonging exclusively to the sovereign, and the fact tliat the 
 ownar of the soil may have the fee simple in the land does not give him 
 any right or claim to the gold or silver mines on his estate ; those be- 
 long to the sovereign, and when grants were made either to the owner 
 of the soil or to sti-angers, the Crown was in the habit of claiming and 
 insisting upon an annual compensation, or a compensation as to quan- 
 tity, which in either case was called the " royalty," and was a 
 recompense' to the sovereign for handing over that portion of 
 the royal mines. Hence the expression " royalty," and this expression 
 has been extended to every kind of charge of that natiire, whether by 
 the soveieign or by the owner of a mine of any kind, whether of gold 
 or silver, or of iron, of copper, or any other mineral whatever. The 
 word has come to be applied to the rental, charg'i, or compensation 
 made for the use of a mine. I say, therefore, that this word " royalty " 
 was evidently so used in the British North America Act." 
 
 That is the opinion of a distinguished statesman, and one who has 
 been conversant with legislation and political affairs in this country for 
 a great many years ; who was chairman of the convention which planned, 
 elaborated, and finally succeeded, with the co-operation of the Imperial 
 Government, in carrying through the Imperial Parliament the Confedera- 
 tion Act — that is an opinion which I venture to say is entitled to great 
 weight even in a court of law. My learned friend who, as Minister of 
 Justice, acquiesced in the decision of the Quebec Court, will contend, I 
 presume, that their interpretation of the word " royalty " is according to 
 the intention of this Act, or that becaiise the word happens to be foand 
 there, your lordships may by a large construction make it cover the royal 
 prerogative of escheats, I submit that even if the word is capable of 
 that meaning it cannot be held to include the hereditary revenues from 
 escheats, if by a consideration of the wliole Act it is clear that it was 
 not intended — 
 
 Judge Henry — Your position is that if the word " royalty " could 
 cover something else it does not cover escheat? 
 
 Me. Macdougall — We say that the word "royalty" has some 
 meaning there. We say it i-efei-s to the rents or charges for mines in 
 Nova Scotia and New Brunswick. There were none reserved in Ontario 
 and Quebec. Those who are familiar with the preliminaiy stages of the 
 Bill, are aware that the word " royalties " was inserted after the first 
 draft, at t;he suggestion of gentlemen from Nova Scotia and New 
 Brunswick, lest thdse rents or sums payable to the Crown under the 
 name of " royalties " should be held not to be included ; and thus the 
 word was added. By the well known maxim noscitur a soriis, you are 
 to interpret words of this kind by reference to those with which they are 
 associated ; and according to the doctrine also that the prerogative rights 
 of the Crown cannot be conveyed or granted unless by express woi'ds. 
 
:. :':.. ;■■■■■ j ' . ■ '■ .. .■ - ' r ■,,.■:,■•''■:• . 
 
 you must be satisfied, that it was uadoubtedly the intention of the Im- 
 i)erial Parliament to grant them in this case. Unless that is clear, jou 
 must give ft limited sijjnification to the word " royalty." The Court in 
 Quebecbased their judgment prinuipally on that word. The Court in 
 Ontario founded their judgment upon the doctrine of reversion, being of 
 opinion, as we must assume, that it was the intention of tlie Imperial 
 P«rliament to convey to the provinces by the »ise of the word " land " 
 this so called reversion. Tisat construction, I submit, is in direct 
 conflict with the old, and heretofore, unquestioned doctrine with 
 resjiect to the prerogative rights of the Crown in England and 
 in the colonies. In Theberge vs. Landry, the doctrine that Her Majesty's 
 prerogative in her colonies must not be infringed, must not, in any man- 
 ner be affected by any A(Ct of Parliament, except by precise words, is i-e- 
 affirraed by the highest court in the empire. I contend that even Her 
 Majesty, without the express sanction of Parliament, cannot grant away 
 the hereditary revenues of the Crown from her successor. In all the 
 Actt relating to that subject since Parliament was established, there is 
 evidence of extreme care when dealing with hereditary revenues of the 
 Crown, and prerogati /e rights of the Crown, to preserve them intact 
 for the successor ; otherwise the Crown would not be worth fighting for. 
 
 Judge Henry — A despatch from the Colonial Secretary would 
 not be sufficient to transfer them. 
 
 Mr. Macdougall — I think not. No subordinate power can touch 
 the prerogative. If the Parliament of Great Britain should choose to 
 turn the Sovereign out and convert tlie country into a republic, as once 
 happened, I suppose Parliament could do it. I do not know that law- 
 yers would agree th;it Parliament, without the 6onsent of the Sovereign, 
 could do it. With that assent Parliament is sujjreme. But, I appre- 
 hend, even my learned friends will agree that such an Act must contain 
 words which clearly evidence the intention. My lords, there is nothing 
 to evidence that intention here. It ii only an inference at best, and. 
 that inference is contradicted by all tlie expressed objects of the Act. 
 Treating this question for a monifut Irom a political standpoint, I re- 
 gard the preservation of the prei ogative rights of the Crown in this 
 country, as essential to the happinesj, iirosperity, and safety of the people 
 who inhabit this countiy. Why 1 Because by it we are assured of the 
 protection of a powerful empire. We are a part of that empire. The 
 Queen who rules over our distant fellow subjects rules over us. Her 
 proti. ting armies are ever ready to shield us. She has certain rights of 
 sovereignty here that we recognize, and have always been leady to 
 defend. The correlative duty is cast upon her to use the whole power 
 of the empire for the protection of the rights and privileges, the free- 
 dom and independence, of the people of this part of her dominions. 
 If it should turn out that my learned friends are right in their 
 contention that the Imperial Parliament has cut that link 
 which hitherto bound, and, as I think, still binds us to 
 the Mother Country, I will not undertake to say in a court 
 of law what the immediate consequence of the atHrmation of such a 
 doctrine would be on the minds of the people. I hold fast by this 
 doctrine of visible, potential prerogative, because I believe that it is the 
 living evidence of the Imperial relations which happily exist between 
 the Mother Country and the Dominion. It is not in the slightest 
 
29 
 
 degrfc a hardship upon ua. Surely it is a triHing thiug to allow the 
 Queen's representative in this country, as a matter of authority, as a 
 proof of the existence of that authority, to dispose of any properties 
 which may, by the death of the existing owners, be escheated. It 
 is a light burden, and my learned friends wish to deprive us, not 
 only of the fact, but even of the sentiment, which is inspired by the 
 existence of the fact, and to cut the last — almost the last — link which, 
 binds Canada to the Mother Country, I say it would be a most fatal 
 result if it should turn out that the Imperial Parliament meant to extin- 
 guish the sentiment of loyalty, where it has hitherto inspired to noble 
 deeds, by removing forever from the eyes of our youth this sign, this badge 
 of the Eoyal authority. Certainly it is not the expressed meaning of 
 Parliament. 1 am satisfied it was not the intention. My lords, if 
 such an intention had been avowed, thac Act would never have passed 
 the Parliament of Cmiada, much less the Parliament ot the Empire. 
 My learned friends must go that far. They must admit that the 
 surrender is for all time ; that this Act is perpetual ; ttiut it has no 
 limitation ; that it is a complete and final transfer to the suliject, of the 
 power of asserting the prerogative rights of the Crown iu Canada. 
 They must say that the Crown of England is no hmger entitled to claim 
 any rights whatever in the casual or territorial revenues which pre- 
 viously did accrue and belong to that Crown, in Canada. I deny that 
 there is a word in the Act to support their construction. I leave the 
 case there. It is an important one. Its importance is not by any 
 means to be measured by the amount of money involved, or the private 
 interests directly concerned. It is a question whose decision will, 
 settle the relative powers and rights of these two legislative systems iu 
 this country. It is the first case, so far as I have observed in looking 
 through the judgments of this high court, in which the question of 
 prerogative jurisdiction has been squarely presented. Though I am 
 here representing private parties in this matter, I hive felt it my duty 
 to di-aw your lordships' attention — perhaps to a greater extent than 
 would be wan anted in an ordinary case — to the public interests 
 that are involved in it. I expect, and the country expects, 
 that this h:gh court will interpret the l>-.w correctly and impartially. As 
 a public man I have had occasion to say in another place, and I said it 
 because it is true, that I am perfectly satisfied with the judg- 
 ments of the Supreme Court of Canada in their intei-pretation of the 
 present constitution. I believe they have rightly appr3hended its spirit, 
 and have rightly interpreted its terms, in the cases that have come be- 
 fore them. It would be idle to suppose that any remarks which may 
 fall from me could have a misleading effect on the minds of the reverend 
 judges.of this court, but I may be permitted to say that it is our good for- 
 tune to have in this country a court above all improper influences — su- 
 perior to the ebb and flow of political feeling — capable of dealing with 
 all questions which come before it, whether emanating from the side of 
 the Dominion, or from the side of the Provitices, in the light of the Im- 
 perial Act of Union, and delivering their judgments upon its terms and 
 meaning according to their reason and their conscience, unaffected by 
 any considerations or influences outside of these walls. Under that con- 
 viction, I feel that I am entitled to the judgment of your lordships, 
 against the decision of the Court of Appeal of Ontario.