ESCHEATS FOR WANT OF HEIRS ; 
 
 THE PROVINCES ARE ENTITLED TO THEM. 
 
 THE ARGUMExNT FOK THE PROVINCIAL VIEW, 
 
 IN THE 
 
 MERCER ESCHEAT CASE 
 
 Se/oT^e the Supren'^.e Court of CcljxucLcl, 2£clt'c}l, 1881. 
 
 ej-.((.i.'>..„ ~ -»>, 
 
 
 OHi 'K!s:41-0-?:^:^ii/ 
 
 loronto: 
 
 PRINTED BY C. BLACKETT ROBINSON, 5 JORDAN STREET. 
 
 1881. 
 
 r 
 

ESCHEATS FOR WANT OF HEIRS ; 
 
 THE PROVINCES ARE ENTITLED TO THEM. 
 
 THE ARGUMENT FOR THE PROVINCIAL VIEW, 
 
 IN THK 
 
 MKRCER ESCHEAT CASE 
 
 J3efore the. Sizprerrxe Corrvt of Ccincida , MciTcJt , I'-iSJ. 
 
 ^y^ 
 
 Toronto: 
 
 PRINTED BY C. BLACKETT ROBINSON, 5 JORDAN STREET. 
 
 1»81. 
 
The Attorney-General of Ontario v. O'Reilly et al. 
 
 The facts of the case appear from the Report of the Attorney-(iener.il, dated February 20th, 1S78, 
 and tirinted at pci^re liV punt, from th'- Sessional Papers. The property in ipiestion Neiiii,' situated in Ontario, 
 and Iiavin;; esclieated to the I'rown for want of lieirs, a suit w.is lirooijlit in Chancery to recover it. The 
 U>'fendants ill possession set up that such escheated property did not heloni,' to the Province. Tlie |)ecree 
 of the Court of Chancery, and afterwards of the Court of Appeal, was in tiie I'Uiiiititf's favour. Froin the 
 Decree of the latter Court the Defendants appealed to the Supreme Court. Hon. .Mr. .\IiDouj,'all, ',•('., 
 i id Mr. Lash, Q.C.. argued the case for the Detenlants. Tlie following: pa','es contain the ari.'unieiit in j 
 a iswer, hy Hon. .Mr. Blake, y.C., and Air. Hethune, '-.^C. , Counsel for the I'rovince of Ontario, and Hon. I 
 .Mr. Loranger, Q.C., who, by leave of the Court, arj,'ued on the same side in the interest of the I'rovince of \ 
 Quebec. 
 
 *.Mu. Blake, Q.(\, did not intond to discu.ss all the questions which had been 
 referred to by the learned Counsel for the appellant, but would endeavour to set before 
 the Court what he believed nece.s.sary for the determination of this appeal. While entirely 
 aj;reein<j with Counsel on the other side that the importance of tlie case far outweif;hed 
 the amount involved, he was unable t(j ai^ree with them when they claimed that upon tlie 
 decision of this case rested the ultimate fate of the .scheme of Confederation. He failed to 
 perceive how the connection of this country with the Empire could depend upon the 
 question, wlieth-r the property of an inhabit mt of Ontario or (Janada who died without 
 heirs was to be disposed of by the Dominion Government or by the Provincial (Govern- 
 ment. If the connection depended upon that, it was hardly worth retaining. 
 
 He would first refer to the position of the Provinces before the Union. He believed 
 this rij^ht of escheat, which is improperly called a prerogative right, to be an incident of 
 tenure in socage — a species of reversion. This right of escheat fell to the lord ; and not 
 to the Crown, unless the Crown happened to be also the lord of whom the land was held. 
 
 This view is confirmed by '1 Crui.se's Digest, Title Escheat, p. 397 : " This mode of 
 acqviiring an estate is called an escheat, which FiOrd Coke says is a word of art derived from 
 the French word eschier, quttd est ncridfre ; for an escheat is a casual profit, quod acridit 
 domino ex ei'entu et ex inspirato, which liappens to the lord by chance and unlocked for. 
 An escheat is therefore, in fact, a species of reversion, and is so called and treated by 
 Bracton. When a power of alienation was introduced, the change of the tenant changed 
 the chance of the escln-at, but did not destroy it ; and when a general liberty of alienation 
 was allowed without the consent of the lonl, this right became a sort of caducary succes- 
 sion, the lortl taking as nltini>i.K /urres." 
 
 In Attorney -General vs. Hands, Tudor's Leading Cases on Real Property (3rd ed. ), p. 
 774, it is said : " In one ca-se, however, lands in fee simple are not liable to e.schtiat. For 
 if land b" given to a body politic or incorpoiute, as for instance to a Dean and (Chapter, 
 or to a Mayor and Commonalty, and to their successors, upon its dissolution the land 
 will revert to the donor, and not to the lord by escheat, Co. Litt. 136."; and at p. 773 : 
 "Where a person dies intestate without leaving any person who. according to our law of 
 inheritance, can claim as heir, any estate of which he is seised in fee will escheat to the 
 lord fi'om whom the fee is held, the lord taking as idtimiis hffres." 
 
 If a lord to whom the land reverted might be himself a subject, an escheat could 
 not be called a prerogative right. 
 
 This was the old law. 
 
 In 1791, by the Imperial Act. 31 Geo. III., Cap. 31, the Legislature of the Province 
 of Upper < 'anada was empowered to make laws for the "peace, welfare and good govern- 
 ment" of Upper Canada; but there was a limitation as to the general power of making 
 
 *NoTK. — Mr. Blake's argument was not reported in shorthand, and only a sumnitry of it can be ^iven, 
 taken from the reiMirter'n notes ; nor has thia iiuuiiuary had the aJvauta^e uf Mr. lilake'a revUion, ur iu fact 
 been stten by him before publication. 4 
 
laws ill any iiiamuT I'liitiiij; to or atrt'ctiiiy " His Majt'sty's prtTo^jative touching tli«' j^raiit- 
 ini{ of u'ltstt /ntfh" of tin- Proviiici', with n-i^ard to wliioli no laws wt-rt' to Iw inadr 
 ex<;i'|>l with tln' siinctioii of thf linfx'rial Hailiain<iit. This liinitution is to ht^ found in 
 section 1-, and it is cicir that if tliis proviso liad not ht-cn insfrtrd, thi- Lc^^islativr Hody 
 could hav»' niado a law aHi'clinj; the i)nToi.'ativc df the Kinj; toucliinjj tin- ;{ranting of the 
 waste lands of th«; Provinoe. Hy tin- l.Srd section, the n>ost pertinent to this (piestion, 
 all lands in I'pper < 'anada w«t<' to In- held in free anil <v)innion sooa^jc. and !e;,'isialive 
 power was jjiven to make " altt'rations with respect to thi.' nature and conse(|uences of such 
 tenure of free and coniinon H(x;a;;e."' Now, thou;.di this tenure involved tlie right of the 
 (Jrown as ultimate In-ir, it is as clear as day that the l,t';fislature cituld have altered that 
 t«!nure, and such It-i^ishition would necessarily have interfered witli the Crown's ri;^ht in 
 respect of escheat. Such UjLfislation would, no <loubt, have been subject to disallowance 
 by the Crown, but in this respect only were Provincial rii-hts curtaile<l. The J'rovincial 
 Ij«'i;islature could MOt, without the sanction of tin- Imperial Parliament, have interfered 
 with the prero;,'aiive with regard tu ••waste lands.' but they could deal with the .><ubject of 
 escheat in re^jard to all other lands. The Act of Union, IStO, li it 4 Vic, Cap. ■'>"), j^avo 
 the same powers, and had the same reservations, and re-enacted section 4l' of (eo. III., 
 Cai>. .11. 
 
 By the Act of 1S54, 17 it IS V'u-., Caj). US. "An Act to empower tiie Le;jislature 
 of Canada to alter the Constitution of the Le;,Mslative (,'ouncil for that Province, and for 
 other j)urpo.ses," section 4'J of the Act of ISK), .i it I Vic, Cap. :5.">, was rep"aled ; so that 
 so far back as 1S.")4 the only remainin-,' jireroiiativi! of '• ijrantin;^ waste lands" was 
 abolished, and full power was given to tht; Provincial Le;,'islature to deal with this pre- 
 ro;a[ative of grantin;^ waste lands, and with it power over escheat as respects such lamls. 
 
 Jf it is found that by the Acts of 1791 and 1S.")4 absolute lej^islative power was ju'iven 
 to tli<' Local Le;,'islature to deal with this subject matter, we appr()a«li witliout ditliculty 
 the distribution of le;^islaiive powers undi-r the 15. N. A. Act. IJut before considering 
 the H. N. A. Act it is neces.sary to refer to the Act of 1S.")2, 1.') A- IG Vic, Cap. '.VJ. relie(l 
 on bv the other side. That Act was passetl "to remove doubts as to tie' lands and (•asual 
 revenue's of the Crown in tin,- Colonies and foreign possessions of ller .Majesty." and 
 allowml those revenues and lands to be lawfully appropriated i')r tie- ixMu-tit of the 
 Colonies in which they existed. !?y the tirst section of the Act it was declared, that " tlej 
 provisions of the .sai<l recited Acts in relation to the hereditary casual revenues of the 
 Crown shall not exteml or be deemed to have exteiidi'd to the wio/i*-//.* arisiwj from the 
 sale or o^/cr disposition of tin; lands of the ('rown in any of Her .Majesty's Colonies." 
 Tlie phrase ••hereditary casual revenues of the Crown" is a ^i-neial expression, used in 
 ConiKJCtion with the w.)rds ".sale or other dispisition of the linlsoi the <,'r.)wn," and would 
 include nil lands, wliether waste lands or lands falling to the Crown by escheat. 
 
 Then in a distinct phrase the Act spr-aks of the, moneys ari.iitir) from the sale of' thi 
 land. H»'re again is a clear legislative declaration that the subject matter of the lands 
 should hereafter be left under the exclusive i-ontrol of the local power. And surely it 
 was never intendeu, in the ever widening and deepening current of liberty of the (.olonies, 
 that the management of these lands should continue to be under tiie control of the 
 Imperi.il Parliament. 
 
 Then again e.scheat is not a revenue, but a casual profit. What is revenue is the fruits 
 of tin; e.scheat. Nor were escheats ever lookeil upon as revenues in the sense argued, for 
 a custom had grown uj) to han<l over the property to the connections of the person who 
 had died ; and the complaint here is that the Local Covernment have dealt differently 
 with the fund, and that the whole was not given to the natural son of the deceased.* If 
 that be so, how much force is there in the argument that this fund was considered as a 
 fund t\>r paying salaritjs of the Judges, or that Canada must depeiui on these revenues to 
 pay tlie Civil list I 
 
 It is also contended that these sums fell into the Consolidated Revenue Fund ; but on 
 the 1st July, 1807, that Fund terminated, for, as the learned Coun.sel for the appellant had to 
 Admit, the legislative pow»'r over all lands was by the B. N. A. Act vested in the Local 
 
 * Note.-' For the factH a* to this, see Kepi>rt of the Attorney-General for Ontario, printoil in Appendix 
 takeu from Ontario SesHional P^iwrs of 187S, No. 38. 
 
I^-^jislaturc, not cotnlitionally Imt aKsolutcly, just as l«'gislativ(' powers were givci' to 
 C/'aiiaila over othor siilijcct matters, not f»ir the life of the Sovereign ami five years after, 
 but for ever. 
 
 The principal point, the proper construction of the l\. N. A. Act, remains for con- 
 sitleration. There can lie no doulit that the Act shouM he construed with due considera- 
 tion t> the condition of the ditliTcnt parties wlio entiTcd into the compact of Coiifeih-ration. 
 Here when it is intended to grapple with the conjunction of four Provinces and the 
 estahiishmcnt (»f separate h-gisiative powers, and wh<'n it has l>een attempted to deal with 
 all these suliject matters in a few j>rinted pages, it would he a fatal error to stick to the 
 letter of the Act. It is the duty f)f this ('ourt to look ari^und in order to get at the proper 
 construction to he put on the different paragraphs of thi' Act. The rule of general intent 
 and the r ' of puMic convenience are of vital consetjuence in dealing with this Act. 
 
 T'c ,e some points wliich seem t ileraMy well admitted. 
 
 ' e n<'ed to knosv wh^it were tin- rights of the (litTerent Provinces before the 
 
 V' jecause it is necessary to apprehend where these rights have gone. If it is found 
 
 t' a subject matter was befori' ("onfederation a proprietary right of the Provinces, it 
 must lie found existing in one of the identities which were created. There was no inten- 
 tion to surrender what had lieen granted by Kngland to the Provinces before Confedera- 
 tion, and all proprietary rights existing before Confederation must after Confederation 
 exist in the (rovernment either of Canada or of the Provinces. 
 
 (:.') It was the intention that each of the Provinces should stand upon the .same 
 footing as to constitutional as well as proprietary rights, and that what was done for 
 Nova Scotia and New Brunswick was to be done for (Quebec and Ontario. It is only 
 iK'cause Ontario and Quebec had to be born, so to speak, that there are these different .sets 
 of powers. If that leading principle of construction is applied, all the: o sections can he 
 made to harmonize in such a way as to give no more to Ontario and Qudtec than to Nova 
 Scotia and New Brunswick. Of course, it is not meant that Provincial tenures were to 
 be assimilated, but what is meant is that the |»ower to deal with them was intended to be 
 the .same in each of the Provinces. 
 
 If Confederation is .so regarded, the construction of the B. N. A. Act involves the 
 question, What is the real nature of the Union 1 One section cannot he taken by itself, 
 but all must be rend together in order that, by a broad, liberal and quasi-political inter- 
 pretation, the true meaning may be gathered. The preamble recites the desire for federal 
 union, etc. Then there are some curious provisions. By the third section the Provinces 
 of Canada, Nova Scotia and New Brunswick are to be one Dominion under the name of 
 Canada: and tlnMi they are divided into four Provinces. Then the tw(dfth section vests 
 "all powers, authorities and functions which, under any Act ff the Parliament of (Jreat 
 Britain, or of the Parliament of the ITnited Kingdom of (Ireat Britain and Ireland, or of 
 the Legislature of Cpper Canada, Lower Canada, Canada, Nova Scotia or New Brunswick, 
 are at the Union vested in or exercisable by the respective (lovernors or Lieuteniint-(iov- 
 ernors of those Provinces with the advice or with the a«lvice and consent of the respective 
 Executive Councils thereof, or in conjunction with those Councils or with any number of 
 members thereof, or bv those (}o^•ernors or Lieutenant-Oovernors individually shall, as 
 far as the .same continue in existence and capalile of being exercised after the Union in 
 relation to the (jovernment of Canada, be vested in and exercisable by the fJovernor- 
 General, with the advice or with the advice and consent of, or in conjunction with, the 
 Queens Privy Council for Canad.i, or by the Governor (leneral individually, as the case 
 refjuire.s, subject nevertheless (except with respect to such as exist under Acts of the 
 Parliament of (Jreat Britain or of the Parliament of the United Kingdom of Great 
 Britain and Ireland) to be abolished or altered by the Parliament of Canada." The 
 sixty-fifth section vests the same powers in the liieutenant-Governors of Ontario and 
 Quebec as far as the .sanu' are capable of being exercised after the Union. 
 
 It is cK^ar then that whatever might have been done by any Governor fell to the 
 CJovernor-General of Canada if the subject matter related to the Dominion of Canada, 
 and fell to the Lieutenant-CJovernor if the subject matter related to the Province. 
 There is nothing said of Nova Scotia and New Brunswick, because the 64th section deala 
 with them. The Constitution of Nova Scotia and the Constitution of New Brunswick 
 
 yjT 
 
wfce aln^ady created, ami were simply ciiitiiiufil. SHiaions di aii'l fi.') sliniiM be read 
 t');,'t!tlii'r, for it Ontario and (jnfh ic had h'^•n t-xi.-stin;,', .sisctioii »).") would not liavt; been 
 iiisiirttid, and wtj woul<l liave found tin; Lieuteuant-Uovernors havinjj the riglit to exercise 
 all the statutory powers tliey inii,'lit have had. If tlie powers of the hieutenant-CSovernors 
 are interpreted \>y section Go alone, see liow narrow the words are. The constitution of the 
 executive authority of each Province is implied from the fact of its existence before the 
 Union. All tlie Provinces are placed upon the same focttin;;. an<l in Ontario and Quebec as 
 well as in Nova Scotia and New IJrunswick, the power of dealini^ witli all subjects which 
 Nova Scotia and New IJrunswick had prior to the L'nion wascontinue'l. subject to the altera- 
 tions made l^y the Act. The conseiiuenc • is that all the powers existing m the old Prov- 
 inces, except such as are taken away, are grafteil upon the new-l)orn Provinces of Ontario 
 and (.^uei)ec. 
 
 Then there is the distribution of the Legislative bodie.s. It iscjuite true one i.s called 
 a Parliament and the other a Legislature, but to both are given legislative jmsvers. There 
 is ii general legislative power in the Parliament of Canada, but the old Provitice of Canada 
 had larger powers than the Parliament of Canada liavtj now, liecause the power of the 
 Dominion Parliament is limited. In section '.(1 a general phra.se is used excluding certain 
 subject matters : l.st. The Public Debt and Projjerty. The " Public Debt '' is defined .shortly 
 afterwards " Property," also, is sufficiently defineil in the Act, for all that Ls given to (Canada 
 must be found in the Act. Thus Indian lands, Sal)le Island and particular properties 
 are the properties over which legislative authority is given to the Parliament of Canada. 
 True it is provided that the particulars of 91 shall over-ride the particulars of .section 92, 
 but it is nowhere provided that if the two conflict the latter shall be superseded. Tliis 
 section has been wrongly interj)reted, f(jr it is not said matters enumerated in section 91 
 shall exclude matters enumerated in 92. 
 
 There is another mode of construing these sections ; it is to interpret them as you 
 would an ordinary grant. It is admitted that there is a general provision in favour of 
 Canada, and in all matters not granted to the Province, and relating to the peace, order 
 and good government of Canada, the power is there, yet it is not a power more paramount 
 than the local power is over subjt^ct matters granted to it. Within its range each has 
 an exclusive power. Local authority is legislative in its character and exclusive within 
 its bimnd.s. Among the branches of subject matters grantetl to the Provincial Legisla- 
 tures is th(; sale and management of public lands. It is .said that tliis is a limited power, 
 but it is to lie remembered that we are dealing with a legislative powt-r, and it does not 
 .set.-ni tliat anything has been left out or excepted. The intention of the Legislature clearly 
 was to give the local autliority most ample power. 
 
 Then there is also tln^jurisdiction over "property and civil riglits," whicli give their 
 chief dignity to the functions of the Local Legislatures; and "'all matters of a local or 
 private nature." 
 
 In section 95 there is a concurrent power over emigration. This is the only subject 
 matter over which there is a concurrent power, and therefore it is the only case in which 
 a law within the jurisdiction of the Local Legislature can be over-ridden by the Parlia- 
 ment of Canada. 
 
 Now, it is clear, looking at the whole Act, that there are words large enough to shew 
 what are the legislative powers of the Provinces and of Canada respectively, over lands. 
 To Canada belongs property consisting of Indian lands, Sable Island, etc., and to the Prov- 
 inces all public lands and the timber and the wood thereon. 
 
 Taking up the Act in its order we come next to section 102, which declares that " all 
 revenues over which the respective Legislatures of Canada, Nova Scotia, and New Bruns- 
 wick, before and at the Union, had and have power of appropriation, except such portions 
 thereof as are by this Act reserved to the respective Legislatures of the Provinces, or are 
 raised by them in accordance with the special powers conferred on them by this Act, shall 
 form one Consolidated Revenue Fund, to be appropriated for the public service of 
 Canada in the maimer and subject to the charges in this Act provided." 
 
 Reliance is placed by the other side on this section 102, and it is said here is » 
 reveuue over which the Local Legislature had a right of appropriation, and not being re- 
 
sflrved to them in the Act, they have now no control over it. If this argument is correct, 
 it wouM equally embrace the proceeds of sale of all the lands, fur they are not reserved — 
 and can it be said they are to go to the Consolidiited Ilevt-mie Fund of Canada ? Then, 
 how can it be argued that the subject matters shall belong to tht; Local Legislatures and 
 the proceeds of the sam:; belong to Canada i Surely it was not necessary when the sub- 
 ject matter was appropriated to the Province to aild an(i the proceeds thereof, if disposed 
 of by the Lical Legislatures Thert'forf, if it should be hi'ld that the land itself is under 
 the control of the L >.m1 Legislature, the revenue derived therefrom cannot be said to 
 come within section 102. If tho argummt is good, then the Court will hold that all 
 revenues of all lands belong to the ( 'onsolidated Revenue Fund. 
 
 Section 107 assigns particular assess. Section 108 gives Canada a proprietary 
 interest in certain properties as well as in the Public Works. So that time and again, 
 when dealing with lands under control of Canada, they are de ilt with specifically. Now, 
 section IDS is in its'df enough. Thi're the particular properties which go to Canada are 
 found, and the (Jourt is a.sked to hold that what property was not given to (^anada remained 
 with the Provinci', for that is the irresistible inference. But the Act does not leave tho 
 matter to rest on inference, for all lands, mines, minerals, royalties and other public pro- 
 perty belonging to each Province are, by the l()9tli and 1 1 7th sections of the B. N. A. Act, de- 
 clared to continue to belong to such Province, to be used and administc^red by the Provincial 
 authorities for the use and advantages of the Piovinces. 
 
 Therefore, reading these dilTerent sections together, it is manifest that Canada got such 
 property as was expressly given to her and the Provinces kept what was not given to 
 Canada. How will the Provinces get a revenue from th^se lands, if not by sale, licenses, 
 etc. I The power to deal with them is full, ample and complete, and the .scope, .sense and 
 spirit of the Confederation Act is plain and obvious, viz. : That all lands situate within a 
 Province in respect of which Her Majesty had any sort of right or interest continued to 
 belong to the Province, with the exception of certain lands given to Canada. 
 
 It would be absurd to suppose that authority over the whole question of granting 
 and transferring ])roperty was given to the Local Legislatures, and yet one of the smallest 
 and least significant matters incident to it, that of escheats, should be withheld. Can it 
 Le said such a little, thwarting, vexatious question, serving no high political interest, was 
 not given to the Provinces, and that they were not to decide whether there should be au 
 escheat or not? If fit to deal with the land, then they are fit to deal with this matter. 
 
 It has already been saiil that this is not a prerogative right, for it belonged to the 
 lord and had to be dealt with by the lord. If it is a prerogative, there are prerogatives 
 of a higher class which have been handed over to the Provincial Legislatures and to 
 which this right is but an incident. 
 
 Suppose the land had been granted after 1867 and there is an escheat, to whom does 
 it belong ? Is it to Canada ? The right to alter tenure, the power to legislate over the 
 subject matter, belongs to the Provinces, and yet it is contended e.scheat would belong to 
 Canada. This is said to bo a petilio principii : but if we find in the Provinces, before 
 Confederation, power to deal with the subject and this power is continued, there is an end 
 of the matter. 
 
 The que.stion is not one of any personal prerogative, but it ;"■ simply whether the 
 Attorney-General for Canatla, who is responsible to Parliament, shall advise as to the 
 mode in which the escheat shall be applied, or whether the Attorney-Ceneral for 
 Ontario, who is responsible to the people of Ontario, shall advise as to what shall be done 
 with the escheat. To hold the former view involves a clashing of functions and of 
 jurisdiction, which is abhorrent to those who desire the welfare and peace of the Con- 
 federation. 
 
 The question to be decided is. What executive authority shall control this subject 
 matter? Public convenience is in favour of e.scheated property being dealt with by the 
 Province and becoming the property of the Province, and the proper way is to leave it to 
 that authority which is responsible to the people who are interested in the proper admin- 
 istration of the lands of the Province. 
 
Mu. Bethune, Q.C, followed on the same side : 
 
 The first <|Uostioii is, Wliat is est-hoat 1 In addition to the authorities cited by the 
 other side, I refer to Vol. .'? of Cruise's Di.i,'est, 4th edition, page 404, title 30, section 26, 
 wliere it is thus defined l.y Lord Manstiekl, in liis judgment in Burgess r. Wheate, there 
 cited : " It had been tndy said that on the first introduction of the feudal law, this right 
 was a strict reversion — when the grant determined by failure of heirs, the land letuined 
 as it did on the expiration of any smuller interest. It was not a trust, but an extinction 
 of a tenure ; as Mr Justice Wright said, it was the fee returned." The same learned judge 
 further on, referring to the liberty of alienation which was given to tenants, says : " As 
 soon as the liberty of alienation was allowed without the loni's consent, this right became 
 a caducary succession, and the lord took as uUiinus lut-res.'' 
 
 In Ontario and in the former Province of Upper Canada, all lands were holden 
 directly of the C'rown in free and coninion socage. It is quite clear that escheat applied to- 
 lands held in .socage;. At page 401 of the same volume of Cruise, it is said "All lands and 
 tenements held in .socage, whether of king or subject, are liable to escheat.' 
 
 There seems no doubt upon all the old authorities that the right of the Crown to 
 e.sdieat was .strictly a species of reversion. My learned friends upon the other side have 
 spoken of an estate in fee simple in land as if that were the land itself. An estate in 
 fee simple is the largest estate which can be granted, but the lord, who in Canada is the 
 Crown, notwithstanding a grant in fee simple, still retains a reversion which is called an 
 escheat. Once an e.scheat took place, it operated to extinguish the title of the grantee ; 
 the tenure of t!ie grantee came to an end. 
 
 Assuming that so far I am correct as to the nature and eflfect of an escheat, let me 
 apply it to the matter in (juestion ; and first let me apply it to a case of escheat upon lands 
 granted by Letters Patent of the Province of Ontario since Confederation. We assume 
 that on the 1st day of July, 18G7, the Crown was possessed for the Province of Ontario 
 and its use, of a lot of land which had passed to that Province under section 109, of the British 
 North America Act, which is in the words following : "All lands, mines, minerals and 
 royalties belonging to the several Provinces of Canada, Nova Scotia and New Brunswick at 
 the Union, and all sums then due or jiayable for such lands, mines, minerals, or royalties, 
 shall belong to the .several Provinces of Ontario, Quebec, Nova Scotia and New Brunswick 
 in which the same are situate or arise, subject to any trusts existing in respect thereof, and 
 to any interest other than that of the Province in the same." Before Confederation that 
 land was vested in Her Majesty : she held it for the use of the former Province of Canada ; 
 after Confederation she still held it, but for the use of the Province of Ontario. Nothing ia 
 the Act liad divested Her Majesty of the title to these lands. The same British North 
 America Act continued certain laws in force, vmder which Her Majesty, through the in- 
 strumentality of the ( 'ommissioner of Crown Lands, was enabled to make a grant of this 
 land. The grant is mad(; under the Creat Seal of the Province of Ontario. We assume a 
 grant in fee simple. After this grant there would remain in Her Majesty her reversionary 
 right in this estate. This reversionary right Her Majesty would hold for the benefit 
 of the Province of Ontario. It could not be that, while the land before being granted was 
 held by Her Majesty for the use of the Province of Ontario, yet upon or after the grant 
 in fee simple the reversionary estate would be held by Her Majesty for the use of the 
 Dominion of Canada ; nothing ir the Act would warrant an inference that that reversionary 
 interest should thus be disposed of. That being so, it would appear that, in the event of 
 the failure of the title of the grantee, in such a case as I have put, and in the event of 
 his dying intestate, Her Majesty in behalf of Ontario would become entitled to the land, 
 for the use of Ontario. 
 
 The next question that arises ia, whether there is any difference between a case 
 in which a grant has been made by the Crown in the former Province of ('anada before 
 Confederation, and a grant made by Ontario since Confederation, in reference to the right 
 of Ontario to the escheat f I submit that there is nothing in the British North America 
 Act which indicates tht! slightest difference between these two ca.ses. Under section 109, 
 all lands, mines, minerals and royalties which belonged to C'anada pa«sed to the Provinces 
 of Ontario and Quelwc. The term land would include, I apprehend, any interest in 
 land which the Crown might have had. The reversionary right, calu d escheat, is certainly 
 
9 
 
 an interest in land. It is only a question of dcsircc lictween that kind of revprsicjiiary 
 interest, and the reversionary interest which tlie Crown possesses expectant ujion tlie 
 determination of a i for years. Where the Crown liad, as in many instances it ha<i, 
 
 mad<; <,'rants for term. >)f years, it miurht as well he argued that tlie revt-rsion of the 
 Crown would not po.ss to the Province of Ontario becau.se it could not he said that that 
 Province had the laiiil ; it had only the reversionary interest in the land, expectant 
 upon the determination of the term. 
 
 AnotluT reason why 1 submit this escheat pas.ses to the ( 'rown is, that it is a matter 
 appertaininji; to the title. It is <juite clear that under the terms " property and civil 
 rights," in section 9'2 of the British Xorth America Act. s.-s. 13, a Provincial Legislature 
 might by an Act abolish escheat as an incident of tenure ; it misjht provid<! that the 
 whole land should V)e <;ranteil, and that the Crown should never under any circumstances 
 assert title to property which it had once granted; and such a law, if not di.sjillowed, 
 would be valid. It is argued on the other side, that under section lOli of the Hritish 
 North America Act, which is as follows : — " All duties and revenues over which the 
 respective Legislatures of Canada, Nova Scotia and New lirtinswick, V)efore and at the 
 Union, had and have power of appropriation, except such portions thereof as are by this 
 Act reserved to the respective Legislatures of the Provinces or are raised l)y them in 
 accordance with the special powers conferred on them by this Act, shall form one Con- 
 solidated Revenue Fund to be ap|)ropriated for the public service of Cana(h«. in the manner 
 and subject to the charges in this Act provided," this escheat passes as one of the "revenues" 
 over which the Legislature of Canada had power of appropriation before Confetleration. 
 I submit, however, tliat the nature of the revenue must be taken into account in determin- 
 ing what is meant by the term "revenue.' in .section 102. Beff)re Confedt^ration the 
 Crown Lands were sources of revenue ; and it is quite clear that under that term, in section 
 102, the Crown lands did not pass. 
 
 So as, if possible, to remove any doubt uj)on this point, section 117, which is as 
 follows, says : — "The several Provinces shall retain all their respective public property not 
 otherwise disposed of in this Act, subject to the right of Canada to assume any lands or 
 public property required for fortifications or for the defence of the country." 
 
 From the two sections 109 and 117, it seems reasonably clear that it ought to be 
 presumed that this property belongs to the Province, unless it comes clearly within that 
 assigned to the dominion 
 
 The true solution of this ({uestion is, that there was a division of the assets between 
 the Dominion and the Provinces, and (having n^ference to the general terms employed) 
 your Lordships ought to hold tliat escheated property falls on tlie Provincial side of the 
 division. If you look at the power wliich was given to deal with "property and civil 
 rights," and to deal with lands, it is more in accordance with the spirit of the Act 
 to hold that escheats were intended to pass to the Provim-es tlian that they should remain 
 with the Dominion. All the lands and interests in lan<l wliich are reserved to the Dominion 
 are described in section 108. When you look at the term " revenues," as em{)loyiMl in that 
 Act, as de.scriptive of what should belong to the Dominion, none of the revenues intended 
 seem to include revenues from lands (except those derived from Public Works). 
 
 The other side argue that this is a prerogative right, and that none of the preroga- 
 tives of Her Majesty belong to the Provinces. I submit that the prerogatives of the 
 f'rown, so far as necessary to carry out matters to be executed by the Provincial authori- 
 ties, have passed under the B. N. A. Act to the Province, and are to be executed by the 
 Lieutenant-Governor as the proper representative of Her Majesty. 
 
 It has been assumed by the other side that the executive authority of the Queen does 
 not extend to Provincial matters, but that a new kind of executive has been created, 
 which is not part of the executive power of Her Majesty, but is a statutory right which 
 has been created and vested in the Lieutenant-Governor. This view, I submit, is 
 erroneous. Turning to the 9th section of the B. N. A. Act you will find it declared that 
 "the Executive Government of and over Canada is hereby declared to rantinne and be 
 vested in the Queen." The argument of the other side must narrow that section to mean 
 over Canada as a body politic or as a subject of F(;deral (tovernment ; so that while the 
 executive authority of the Queen qua Dominion matters extends over the whole of the 
 
10 
 
 Canadian torritorios. as to Provincial niattors it is not anywluTe to hp found in any of the 
 Pn.vine.>s. It woul.l cprtainlv roquire very stron;: wonls to abolish tli.- prerogative ri<,'ht 
 of M.-r Majesty as to anv matter in respect of wliirh it existe<l before Confederation. 
 I siil.iiiit that"tlie true coiistrnction is that the executive authority of the Queen con- 
 tinues, and was to lie carried ..ut, in every part of Canada after Confederation, by the 
 (lovernor-Uonera! in resp.-ct of Uominion'matters and by the Lieutenant-Co vernors as 
 her representatives in Provincial matters, preci-sely as .such executive authority existed 
 before Confederation. I call attention to the words •' of and over Canada." The words 
 "of and over" woulil be (piit.- unnecessary if the section meant merely that the executive 
 power of Canada, as the subject of Dominion Government, should continue in the Queen ; 
 the words "over Canada" would have no meaning if they did not apply to Canada terri- 
 torially, and thus include within Canada the Provinces and their executive. I think 
 that under the prcciding sections this is reasonably plain. Looking at section .'$, it is 
 quite clear that one Dominion was to be formed under the name of Canada; and by 
 section 4, Canada .shall be taken to mean Canada as constituted under this Act, unless 
 it is otherwise expressed or implied. P>y section .">, ( 'aiiadu is divided into four Provinces ; 
 but that division into Provinces quite consists with the continued existence of the pre- 
 rogative over these Provinces, to be executed in matters as to which the new Provincial 
 Ciovernments were to be agents. 
 
 I supi>ose we may look to the headings which precede the various sections ; and looking 
 at these, it is (juite cl'ear that the woids " E.vecutive Power" which precede section 9, are 
 describing the same kind of thing which the words " Executive Power " that precede 
 section ."iS (as to Lieutenant-Covernor) describe. Wlien you come to Provincial constitu- 
 tions, beginning at section .">8, you find these words: " Provincial Constitutions," " Execu- 
 tive Power." Then you find, by section 58, that there is to be an officer called a 
 Lieutenant Governor appointed by the Governor-General of Canada, by in.strunient under 
 the (ireat Seal of Canada, and that that Lieutenant (Jovernor is to hold office during 
 the pleasure of the (Jovernor-General, subject to removal for cause. It is not said whose 
 "officer" he i.s. The appointment is made by the (Jovcrnor (Jeneral under the Great 
 Seal of Canada and, I assume, in Her Majesty's name. This officer is to exercise the 
 Executive Power necessary to carry out that part of the (Jovermnent committed to the 
 Province. It is, I submit, a part of the same Executive Power which, un<ler section 9, is 
 declared to continue and be vested in the Queen. None of the ."sections which deal with 
 the Executive of the Provinces contains a line th.at shews it was intended to transfer, 
 in T'rovincial matters, that power which liad formerly existed in Her Majesty as a matter 
 of prerogative, to the Governor-! Jeneral. It cannot be argued that it was intended to 
 transfer it to the Governor-General, for he has no duties in connection with the Prov- 
 inces, except tlie consideration of the (|uestion of allowance or disallow^mce of laws. The 
 other side are driven to argue that this part of the prerogative lias l>een extinguished. 
 Wliy should that be assumed ? All the.se prerogative rights existed for the benefit of 
 Go\ernment, and because they were thought necessary to such Government. If necessary 
 to the proper carrying on of Government in the old Provinces?, why should it now bo 
 thought unneces.sary 1 
 
 Under section 65, all the .statutory powers and functions which were formerly pos- 
 sessed by the Lieutenant-Governors of L'pper and Lower Canada, under Canailian or Im- 
 perial Statutes, are declared to b»> exercisable by the Lieutenant Governors in these two 
 Provinces of Ontario and Quebec. I submit that there can be no doubt that under tho 
 I'ppt^r Canada and Lower (,'anada Constitutions which preceded the Union of 1840, tho 
 Lieutenant-! iovernors were tlie proper depositaries of the ''prerogative," .so far as it apper- 
 tained to the (Jovermnent of the two Provinces of Upper and Lower Canada ; and these 
 are still to be e.xerci.sed after ( 'onfederation V)y the Lieutenant-Governors of these two Prov- 
 inces, in the same way as tliey hail been exercised by former Lieutenant-Governors. 
 
 Then under section 64, the constitution of the Executive authority in Nova Scotia and 
 New Brunswick was to continue as it exi.sted at the Union, until altered by the authority 
 of the B. N. A. Act. It cannot he doubted that before Confederation the Lieutenant- 
 Governors of Nova Scotia and New Brunswick respectively possessed the right as repre- 
 ■eutatives of Her Majesty to execute the prerogatives necessary to Colonial Government. 
 
11 
 
 If this he so, then it w.^uld follow, under section Gl, that the.s<' prerogative rights continued 
 in these two Lieutenant-Ciovernors ; and the whole scope of the B. N. A. Act shews that 
 tli'^re was not intended to !»e any dilTi-'rence in the pDwers of the Lieutenant-liovernors of 
 the various Provinces. 
 
 The reiison why the B. N. A. Act is silent about the exercise of th<'se prerrgitivcs 
 by the Lieutenant-Governors is very obvious. It is quite clear that the (Jovernor-deneral 
 is und;r the Act made the Deputy of the Queen, and that the Governor-General is en tided 
 to appoint a further Deputy of the Que -u for certain Provincial purposes. Tlr\t Deputy 
 is caUed a Lieutenant-Governor. He is appointed by an instrument in the name of Hf^r 
 Majesty, and, consistently with the law as to the execution of powers, it seems <piite plain 
 tliat if the Governor-General is an officer of Her Majestv, his Deputv is alsf) an utfioer of 
 Her Majesty as to the prerogative of Her Mijesty in convoking the House of Assembly 
 and in other matters. By section S2 it is .saiil th it the Lieutenvnt-(Jovernors of Ontario 
 and Qufliec shall from time to time, in the Queen's name, bv instrument under the (Jreat 
 Seal of the Province, summon and call together the Legisiiitive Assembly of the Province. 
 By .section 72 the Legislative Council of Qu^'lu'c is to be constituted of persons to be 
 apj>ointed by the Lieutenant-Governor, in the Queen's name, by instrument under the Great 
 Seal of Qu(d)ec. By .section 7-> : so often as a vacancv shall occur the Lieutenant- 
 Governor, in the Queen's name, is to fill it. 
 
 It is said on the other side that section 8'J found its way into the Act by inad- 
 vertence. This assumption, I apprehend, cannot for a moment be entertained. Those 
 who make it must ai.so account for .sections 72 and 7") having found their way into the 
 Act in the same way. But it is quite plain why these sections are there. By section 
 88, the constitution of the Legislature of each of the Provinces of Nova Scotia and New 
 Brunswick was declared to be continued as it existed at the time of the Union until 
 altered ; and the House of Assembly of New Brunswick was to continue umlissolved. 
 The reason why the House of Assembly and Legislative Councils of old Canada could not 
 be continued was because of the division of (.'anada into the two Provinces, Ontario and 
 Quebec ; and it became therefore necessary to provide for the creation of Houses of 
 Assembly for these; two Provinces ; but it is impo.ssibh' for a mom<>nt to contend that the 
 constitutions of the four Provinces wen' intended to be in any respect different. If they 
 were the same, it follows that the prerogatives proper for the execution of Provincial 
 Government are to be exerci.sed l>y the Lieutenant-! Governors. 
 
 Take another prerogative, namely, the prerogative of Ju.stice. It is quite clear that 
 the Administration of Justice in the Province, including the constitution, maintenance and 
 organization of Provincial Courts both of Criminal and C'ivil Justice, is committed to the 
 Provinces. Courts of Criminal as well as Civil .lurisdiction have been created in Ontario 
 by the Provincial Legislature. Are not these courts Her Majesty's courts ? Does not 
 the process of these courts run in the name of Her Majesty I If the prerogative of 
 Justice is not to be invoked in aid of the Provincial Courts, what authority is there for 
 the administration of Justice in Her Majesty's name ( Was i* not intended by the frameri 
 of this Act that Her Majesty's prerogative of Justice s? ould continue in the courts 
 established by the Provincial Ijegislatures. just as if these courts had been established bj 
 the Imperial Parliament I ami if there exists a right to u.se Her Majesty's name in the 
 administration of Justice, it must be because itnnlied by the prerogative right in question 
 being to be executed by the Provincial machinery. 
 
 For these reasons I submit that the judgment appealed against should be affirmed. 
 
 *HoN. Mr. Lokanuer, Q.C, followed on the same side, on behalf of the Province 
 of Quebec : 
 
 The right in question is a common law right which ought to be governed by local 
 law.s. This right is called by different names ; .sometimes it is called an escheat, some- 
 times a reversion, and sonietimes a droit de d'-sft^renre. It is nothing else than a fiscal 
 
 • Note. — Mr. lior»nt(er'» ar>;iinient, owinjj to its (freat lenifth, is ^iven in a condensed form. Tfie report 
 In its j)resfMt form has l>cen prepitrwl from a fuller report which had been revised by Mr. Lor»m{er. The 
 con<len«ed report h»8 not been seen ur revised by him. 
 
12 
 
 rii;ht (.'ri<,'raftf<l upon tho law of succession. .Society being originally proprietor of all 
 lauds, they revert to society if the owner dies without heirs. The .sovereign cho.sen by 
 society holds the land in trust for the people, as a fidei coinmitisnm. The civil law 
 theory of vacant pro{)erty is this: If a man gave up [iropcrty with the intention that 
 some one shouM take, that person was entitled to it, while if he abandoned it for the 
 sake and with the intention of abandoning it, then the first one who took possession 
 would be entitled to retain it ; but if the abandonment is without his will, then it goes 
 to his heirs ; and if he leaves no heir.s, or they are unwilling to .accept, then it goes to the 
 people at large, and under the Roman law it went to the Roman Republic. That right 
 was exercised by a public sale of the property. 
 
 In Prance as well as in P2ngland, and in fact throughout all feudal and monarchical 
 Europe, the right of escheat or druit dn di-sherence never ceased to be looked upon as a 
 right of de.scent, whether exercised by a king or a seigneur, and always formed part of the 
 law of succession. Did the king exercise that right in his capacity of sovereign ; in other 
 words, as a royal prerogative I No ; but as representing the people, and he had to demand 
 it, and certain forms had to be followed. He took as sucee>sor {iPt Ferriere, Coutuine, 
 Tit. VIII., sur Art. 187). 
 
 (Strong, J.: It is elementary law with us that this right belonged to the lord of 
 the manor. ) 
 
 It was so well considered as an incident of the law of descent tiiat it was legislated 
 upon by the French Parliament. It is a maxim that they could curtail only the civil law, 
 still we find them legislating upon this right. In Quebec it will go to the wife in default 
 of h-irs, or to the ilonee if the property came from an ascendant. 
 
 At the time of th<? French revolution the feudal system was abolished, and with it 
 the droit de desherence. How was it dealt with since 1 The civil code was prepared, and 
 Napoleon did not say it should go to the sovereign or chief magistrate, but by Arts. 76S 
 and 7G7, he says it shall belong to the State, not as a prerogative right belonging to the 
 head of the nation, but as coming from the law of descent. 
 
 How was this right to be exercised after Canada was ceiled to England ? Chitty on 
 Prerogative, ch. li. p. '1'), distinctly says it must be settled by local laws. Then it was, and 
 is, perfectly competent in this country for our Local Legislatures to deal with this suVyect 
 matter. There was the droit duuhnine, which formerly went to the king, but this has 
 been done away with by legislation. 
 
 (Strong, J. : The point you make ia, that under the civil code the Crown takes by 
 force of succession, under the heading of " successions irregulieres,"' which is private law 
 under the control of the Local Legislatures.) 
 
 Ves, my lord. I contend that if the Dominion Parliament have no legislative authority 
 over tliH subject matter, it must go to the Provinces. It also falls under their control 
 under the words "property and civil rights." And I say, that as a maxim of inter- 
 national law the riajlit of legislation over a subject belongs to the Government under 
 whose control the subject matter hajipens to be. 
 
 Lex rei sif<p must prevail, even if the Confederation Act did not say so in so many 
 words. Anil this principle, viz., that escheat should be regulated by the laws relating to 
 property, is not peculiar to the law of Canada, for both Blackstone and Chitty treat this 
 subject matter under the heading of "the laws relating to the transmission of propt^rty." 
 
 If the Local L<>gislaturt; has legislative powers over projjerty, escheated property must 
 belon^' to the Local and not to the Federal Government. A great part of the argument 
 on the other side was for the purpose of shewing that the Crown had not parted with its 
 prerogative, yet it must be admitted that the Sovereign is no longer in the per.sonal enjoy- 
 ment of this right, and that it belongs now either to the Federal Government or the Local 
 Government. 
 
 I conteml that it belongs to the Local ftovernracnt, because it is a subject matter over 
 which the Province has legislative; powers, otherwise you would have to conclude that the 
 Federal (Jovernment could own property within the Provinces which the Local Legislatures 
 by legislation could take away. 
 
 It having been established that the right of escheat being governed by the law of 
 property, namely, by the law of succession, must, of necessity, fall under the control of 
 
IS 
 
 thfi Provinces, vested by the 13th paragraph of the 9'2nd section of the B. N. A. Act, 
 with the power of legislation over " pr.)perty a il civil rights,'' it follows, that as a eon- 
 sequence, all public property, which at the time of Confederation l)elonge<l to these Prov- 
 inces and which became subject to provincial legislation, must equally belong to them. 
 
 If the Confederation Act had been silent upon this power, escheated property would 
 have gone to tlie Local Government on the grouml, as I contend, that a true interpretation 
 of the federal compact i^, ^l t all powers not specially conferred by it have devolved upon 
 the Provinces. 
 
 In entering into the federal compact, the Provinces did not resign any of their res- 
 pc'tive constitutions, powers, propertv and revenues to the federal authority in such a 
 way as to vest it with them to their entire exclusion: in a word, they never int(;nd('d to 
 renounce, and in fact never did renounce, their distinct and separate existence as Prov- 
 inces, wlien becoming part of the (Confederation ; this separate existence, their au- 
 tonomy, constitution, revr nues, property, rights, powers and prerogatives, they expressly 
 preserved for all that coiiperns their internal government; and by forming th<;niselves into 
 a federal association under political and legislative aspects, they formed a (Central ( Jovern- 
 ment for interprovincial ol)jects only. Fur from the feileral authority having created the 
 provincial powers, it is from these provincial powers that has arisi'n the Ferleral ( lovern- 
 ment, to which the Provinces cedeil a portion of their rights, property and revenues. 
 
 At the time of Confederation, all legislative and executive power, legal attributes, 
 public property and revenues that are now the appanage of the Central (fovernment and 
 of the Provinces, belonged incontestaltlv to the latter. The federal compact did not create 
 a single new power. The part now belonging to the Federal Government was taken from 
 the Provinces to be conferred upon this former power. 
 
 The powers, in particular, that are granted by section 91 to the Dominion Parlia- 
 ment, had theretofore formed part of the powers of the Provinces, in common with tlioso 
 mentioned in section d'2, whicli remain within the jurisdiction of tlx; Provinces. These 
 powers liave been divided. Those conferred up:)n t!i(^ Fe'leral Parliament were given to 
 it, and tiiose h^ft to the Provincial Ijegislatures tiiey merely retained. Tlien, ail that has 
 not been vested in the Ftnleral Governni'int, remains with the Provinces, and again, in 
 the distribution of powers ma<le by these two sections. whatev(>r be their wording, the 
 general rule is the j^rovincial jui-isdiction, and the exception the federal. 
 
 The same rule applies to the distribution of the property ; all belonged to the Prov- 
 inces at the time of Confederation, and the Federal Government has no snare, except 
 what has been given to it. There again, the general rule is in favour of the Prufvinces, 
 and the exception is in favour of the Federal Government. 
 
 The autliority of tin; Lieutenant-Governors, within the limits of their jurisdiction, is 
 on an eijuality with the authority of the Governor-General. Both are, within their res- 
 pective spheres, representatives of the t^ueen, the former in the provincial, the latter in 
 the federal sphere. It is true that the Lieutenant-Governor is appointed by the fJovernor- 
 General, but it is in the name of the Qui'en that he is so appointed, and as her agent or 
 representative. In his official acts, it is the Queen whom he repres(Mits and in her name 
 that he acts. 
 
 The relations between the Provinces and the Imperial Government remain, after the 
 Union, what they were before. The Queen forms part of the liCgislature of each Prov- 
 ince, by the intermediary of the Lieutenant-Governor, it is in her name that the Houses 
 are calleil and prorogued and that the laws are assented to. The sole change, in this 
 respect, consists in the disallowance and disapproval of provincial Acts, which is made by 
 the (Jovernor General, but this is not a legislative act. 
 
 rhe Kxecutive Government resides in the person of the Lieutenant-Governor, as the 
 first magistrate of the Province, and here again, he acts as the representative of the 
 JSo'creign. 
 
 [t is the same with the concession of the revenue to the Federal Government as with 
 legislative jurisdiction and public property ; here again, the public treasury belonging to 
 th • Provinces was divided to make a budget for the Federal Government, the remainder 
 wn< left with the Provinces. 
 
 The consequences to result from the solution of this conflict between the Provincial 
 
14 
 
 and Kfdcnil claiins arf of irrcat importance to the Provincfs, and particularly to the Prov- 
 ince of (.Quebec. In fact, if tii'- ftdi-ral pn-tcnsions prevail, and the principle of the 
 inferiority of the Provinces ami the sutiordinatiou of their Legislatures to tlie federal 
 power IS well tonnded, less than tifty years will see theii- alisorption in the Central (Jovern- 
 ment; and, the annihilation of L')cal (Joverninents having done away with the necessity of 
 their existence, the lA-deral Uoverninent will give place to that legislative union which 
 is so justly dreided \>y the Province of tjuel»(;c, whom I represent. Although having 
 no material and direct interest in the suit, the consecjuences of an unfavoural)le result 
 might so prejuilicialiy atl'ect its political condition that it thought it proper to join with 
 the Province (jf Ontarif) in asserting their coiiuuon claim to the present right of escheat 
 or droit <h tltshtrfurc 
 
 To thoroughly understand the nature and extent of the powers and limits of the 
 jurisdiction of the Federal Purliani *nt and of the Local L'*gislatures, a precise knowledge 
 of their political situation at the time of Confederation and of the powers of their Legis- 
 latures, is necessary. Integral jynrtions of the Mritish F^inpire for upwanls of a century, 
 llnit<'d Canada, Xova Scotia and New Brunswick, to which at first was limited thi; federal 
 compact, each possessed, under the guarant(;e of England, wliose power was felt rather 
 in protecting than in coercing thiMii, an independent and almost sovereign constitution. 
 
 This constitution, modelled on the British constitution, left them the absolute 
 government of the internal affj,irs of the Province, the control of their public funds, the 
 enjoyment of their property, and the disposal of their revenues of all kinds ; even the 
 territorial revenues wliich had lieen exchanged for a civil list. Within the sphere of their 
 powers, their Legislatures or Provincial Parliaments, under the a^gis of the principles of 
 responsible government, worked freely; and their internal action was not under the control 
 of any foreign power. 
 
 Thes(> Provinces, each of wliic-h was clothed with the totality of the powers now 
 posse.ssed separately by the Federal an<l Local (rovernment, were therefore in the enjoyment 
 of their complete political and legislative autonomy. 
 
 These constitutions, rigiits, ami powers, and this autonomy, were guaranteed to them 
 by tn'atie.s, and imperial laws which, in the relations between the British CJovernment and 
 the colonies, have the force of treaties. The constitution of the United Provinces of 
 Upper and Lower Canada (to speak only of these two Provinces) had been granted to 
 them by the Union Act of lf*40 ; and the constitutions which each had enjoyed for three 
 (juarters of a century (^with the suspension of a few years in the case of Lower Canada) 
 had come to them by the Constitutional Act of 17'J1, not repealed by the Union Act of 
 IS40, but simply moditied to make it harmonize with the Union of the Provinces and the 
 new system. 
 
 It is therefore to the Constitutional Act of 1791 that we must look for the origin of 
 the powers of the Legislatures of the Provinces of Canada, which were in force at the time 
 of Confi'deratioii, modiKed as has just been stated. These powers, with the reserve of 
 imperial interests, were unlimited, and extended to every species of legislation, whether 
 public or private, necessary for the good government and welfare of the country. Thus, 
 as already stated, it extended to all the objects of legislation now divided between the 
 Federal Parliament and the Local Legislatures. 
 
 A right or a power is not taken away from a nation or an individual, except by a 
 law which revokes it, or by a voluntary abandonment. Is there, in the resolutions of the 
 Conference of the Colonial delegates, held in Quebec, in (Jctober, 1864, or in the Federal 
 Act itself, one word which repeals their powers or explicitly derogates therefrom 1 
 Certaiidy not. Dot's any one of these resolutions, or any section of tliis law, or the whole 
 of either, imply an implicit repeal of such rights? Article 29 of the resolutions says, 
 with respect to the Federal Parliament: " The general Parliament .shall have power to 
 mak(^ laws for the peace, welfare and good government of the Federated I'rovinces 
 (saving the Sovereignty of England) and specially laws respecting the following subjects." 
 The B. N. A. Act, section 91, enacts : " It shall be lawful for the Queen, by and with the 
 advice and coiusent of the Senate and House of Commons, to make laws for the peace, 
 order and good government of Canada, in relation to all matters njt coming within the 
 classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces." 
 
15 
 
 Sfc. d'2. — " In each Province the Legislature may exclusively make laws in relation 
 to matters cominj; within the classes of subjects, next hereinafter enumerated." 
 
 Were these powers of tlie Provinces revoked hy the Federal compact which l.ecarae the 
 B. N. A. Act ] Un the contrary the old Provinces preserved their corporate id.-ntity under 
 Confederation. A distinction must here be made between the former Province of Canada 
 and the other Provinces?, as those of Nova Scotia and New Brunswick which entered into 
 the Federal compact under their old corp .rate names. Under the old Constitutional Act 
 of 1791, Up.per and Lower Canada each formed a Province separately constituted, umh-r 
 the names of the Provinces of Upper and Lower ('anada. Reunited by the Union Act of 
 1S40, they formed only one Province, under the name of the Province of C^anada. Under 
 the 1{. N. A. Act of Union, they were again disunited and made into two separate Provinces, 
 called the Provinces of Ontario and of (Quebec ; but did they again become in reality as 
 each was under the Act of 17*Jl, although having' ditl'eient names? Has this ditierence 
 in name and in territorial boundaries effected a ditiV-rence in their identity, and can it be 
 said that they have liecome new corporations ] Have they not rather remained as they 
 were, as well as Nova Scotia and New Brunswick ? The ma.vim of law .Vi7 f'acit error 
 noiniiiis. cum d" rorpore constat, a maxim of universal application in all legal matters, 
 and which declares that the name does not att'ect the thing, .so long as its identity is 
 apparent, seems to settl(> the question. The only difference in the result i.s, tliat, in place 
 of entering the (Confederation under only oni' name and as a single member of the 
 Union, the two Provinces entered it under two different names and as two members of the 
 Union. They are, moreover, each clothed with the .same powers as before, and as the 
 other confederated Provinces, each having one and the same constitution. I do not see, 
 either in the resolutions of the conference, or in the Federal Act, any provision which 
 would give a pretext to the pretension that, in entering Confederation, the Provinces lost 
 their former identity to acquire a new one. 
 
 Any such inference is rejected by the preamble of the Act, which states : " Whereas 
 the Provinces of Canada. Nova Scotia and New Brunswick havt; expressed their desire to 
 be federally united into one Domiiion under the Crown of the United Kingdom of (ireat 
 Britain and Ireland, with a constitution similar in principle to that of the United King- 
 dom ;" and by section 3, which declares : " It sliall be lawful for the Queen, by and with 
 the advice of Her Majesty's most honourable Privy Council, to declare by proclamation 
 that, on and after a day therein appointed, not being more than six months after the 
 passing of this Act, the Provinces of Canada, Nova Scotia and New Brunswick shall 
 form and be one Dominion under the name of (,'anada : and on and after that day tho.se 
 three Provinces shall form and be one Dominion under that name accordingly."' Section 
 5, which enacts : "Canada shall be divided into four Provinces, named Ontario, Quebec, 
 Nova Scotia, and New Brunswick," makes the contrary decision absolute. 
 
 It was the identical old Provinces which united to form a new Government and to 
 constitute a Federal Dominion, without losing their identity ; and without ceasing to be 
 what they had been, distinct Governments. It is not then from the Dominion that the 
 Provinces arose, but it was the Provinces that created the Dominion and were trans- 
 formed into a new political body, without ceasing to exist in their former condition. 
 
 Were they endowed under the new systtin, with their former constitution ] Is the 
 constitution, given to them by the federal compact, thtiir old constitution, moditied to 
 suit the new order of things, or is it a new constitution? 
 
 It is necessary, tirst, to know what were the organic cliaracteristics of the old consti- 
 tution. Let us confine ourselves to the constitution of the Provinces of Upper and Lower 
 Canada and to that of tlie Province of Canada. These con.stitutions were formed upon 
 the model of the British constitution. The Executive power resideil in tlie person of the 
 Sovereign, represented by the Governor-(reneral or a Lieutenant-Governor. The legisla- 
 tive power resided in a Legislature sometimes known as the Provincial Parliament, 
 composed of three branches ; the Governor or Lieutenant-Governor rejiresenting the 
 Sovereign, the Legislative Council, appointed by the Governor, and a Legislative Assembly 
 or House of As.sembly, elected by the people. TIk- Parliament was convened by the 
 Governor in the name of the Sovereign, it was prorogued in the same manner, and the 
 
16 
 
 laws were assfutod to in the same namo l>y the same olficor. Let us see what arc, on the 
 same suliji^c't.s, the provisions of the federal compact in tlie constitution of tlie Provinces. 
 
 Section r)S, wliich immediately follows Title V., ^'Provincial (Jonstitutionn, Executive 
 Power." vests the Executive power in the person of tiie Lieutenant-Governor, whose 
 appointment is provided for in these words : " For each Province tliere shall be an officer 
 styled the Lieutenani-Govt-rnor, appointed by the (iovcrnor-Oeneral in Council, by instru- 
 ment, under the (Jre.it Seal of Canada. " 71, "There shall be a Legislature for Quebec, 
 consistin;^ of the Lieutenant-(jiovcrnor and of two Houses, styled the Legislative Council 
 of Quebec and the Legislative Assembly of Quebec." 82, "The Lieutenant-Governor of 
 Ontario and of Quebec .shall, from time to time, in the Queen's name, by instrument under 
 the great seal of the Province, summon and call together the Legislative Assembly of the 
 Province." 90, " The following provisions of this Act respecting tlie Parliament of 
 (Janaila, namely, the provisions relating to appropriation and tax bills, the recommenda- 
 tion of money votes, the assent to bills, the disallowance of Acts, and the signification of 
 pleasure; on bills reserved — .sliall extend and apply to the Legislatures of the sev(;ral 
 Provinces as if those provisions were here re-enacted and made applicable in terms to A\e 
 respective Provinces ami the Legislatures thereof, with the sub.stitution of the Lieutenant- 
 Goveroi.r of the Province for the (Jovernor-General, of the Governor General for the 
 Queen and fer a Secretary of State, of one year for two years, and of the Province for 
 Canada." r)-5, " Where a bill pas.sed by the Houses of the Parliament is presented to the 
 Governor-General for the Queen's assent, he shall declare, according to his discretion, but 
 subjei't to tlie provi.sions of this Act and to Her .M.ajesty's instructions, either that he 
 as.sents thereto in the Queen's name, or that he withholds the Queen's assent, or that he 
 reserves the bill for the signification of tiie Queen's pleasure.'" 
 
 It is objected to the analogy, which we find between the Executive and Legislative 
 powers conferred upon I.,ieutenant-G<ivernors and the Pro\ inces of the ( "onfederation, and 
 the same powers conferred upon the former Governors and Lieutenant-Go vei-nors and the 
 old Provinces, that un<ler the new system, the Sovereign does not exercise the executive 
 power as under the old, thro\igh the Governor who represents him, and by whom he was 
 directly appointed : that umler the new system the Lieutenant (rovernor is appointed by 
 the Gov»'rnor-(Jeneral, of whom, and not of the Sovereign, he is the representative. 
 Secondly, that the Sovereign is not a branch of the Legislature of the Provinces, l)ecause 
 the Lieutenant-Governor, clothed with seconilary powers as just stated, does not represent 
 the Sovereign as the first branch of tiie legislative authoritv. 
 
 The answer to these objections is based upon the fundamental principles of the 
 British Constitution, upon which depends the Imperial Sovereignty itself, and the consti- 
 tutional existence of the colonies, wliich are : That the executive power of the nation 
 resides in the person of the Sovereign, as the chief m.agistrate of the realm, and the 
 legislative power in tlie Parliament, compo.sed of the Sovereign himself, and the other two 
 branches of the nation, the House of Lords and the (,'ommons. That it is from the 
 Sovereign and the Parliament thus composeil, that is derived the source, principle and end 
 of all power, '■\fons princijnnm etjinia oiiinis />otestntin." 
 
 According to th<,' constitutional doctrine, all legislative and executive power granted 
 by England to her colonies is a delegated power, the legislative power being delegated bv the 
 Parliament, of wliich the Sovereign is the first branch, and the executive power by the 
 Sovereign alone, of whom the colonial (iovernors are tlie representatives in tlie Executive 
 Government as well as in the Legislatures. The authority of the Governors appointed by the 
 Sovereign is in no sen.se personal ; it is in the name of the Sovereign that they exercise 
 it, in virtue of a Commission, which might be assimilated to what is, in the civil law, 
 an ordinary mandate. 
 
 In political as in civil law, in the ab.sence of any provision specially applicable to 
 the subject, recourse must be had to the common law, to ascertain the relations between 
 the government and the governed. This rule is ailmitted in England, where, for in.stance, 
 the publicists hold that the hereditary right to the Crown is governed by the law of 
 ordinary successions. It was thus that on the death of Edward VI. without children, 
 the Crown, like the large baronies, devolved, in default of other heirs male of the late 
 
King Henry VIII., to his two daughters, Mary and Elizabeth, but the former excluded 
 the latter, to avoid a plurality of sovt-reigns. 
 
 Applied to the powers of Liruteuant-Governora, the rules of mandate, which, being 
 drawn from the civil Uw, and founded upon natural reason, are common to all civilized 
 nations and are the same in England as in Canada, clearly shew how the Federalists are 
 in error, when they hold that the Litutenant-f governors do not represent the Sovereign. 
 One of the fundament U principles in matters of mandate is that the persons commissioned 
 by the mandatary, with the consent or by order of the mandator, to executt; the mandate, 
 are responsil)le to tlie mandator, and represent him for all the purposes of the mandate. 
 Here, the Governor-CJeneral, appointed by the Sovereign under the Federal Act, appoints 
 the Lieutenant-< Governors to fultil certain functions created by the .same Act. Can it be 
 doubted that the Governor-General having made the appointment in the name of the Queen, 
 and made it for her, the Lieutenant-Governor is not his servant, but became, as the 
 Governor-<ilt'neral himself, one of Her Majesty's officers, and that, in the performance of the 
 duties conferred upon him, he represents the Sovereign? 
 
 Wliat are his functions I The executive power resides in his person, by section 58, 
 as we have seen. He is assisted by an Executive Council (015). 
 
 Sec. G"). "All powers, authorities, and functions which under any Act of the Parlia- 
 ment of Great Britain, or of the Parliament of the United Kingdom of Great Britain and 
 Ireland, or of the Legislature of Upper Canada, Lower Canada, or Canada, were or are, 
 before or at tlie Union, vested in or exercisable by the respective Governors or Licutenant- 
 (iovernors of those Provinces, with the advice, or with the advice and consent of the 
 respective Executive Councils thereof, or in conjunction with those Councils, or with any 
 number of membc^rs thereof, or by those (Governors or Lieutenant-( Jovernors individually, 
 shall, as far as tlie same ar(^ capal)le of being exercised after the Union in relation to the 
 (iovernnient of (Jntario and (Quebec respectively, be vested in and shall or may be exercised 
 by the Lieutenant-Governor of (Ontario and Quebec respectively, with the advice, or with the 
 advice and consent of, or in conjunction with the respective Executive Councils, or any mem- 
 bers thereof, or liy the Lieutenant-Governor individually, as the case re(iuires, sub; -ct never- 
 theless (except with respect to such as exist under Acts of the Parliament of Great 
 Britain, or of the Parliament of the L^iiited Kingdom of (Jreat Britain and Ireland) to be 
 abolished or altered by the respective Li'gislatures of Ontario and t^iu-bec.'' 
 
 Now, by the Union Act of 1S40, which in these respects was in force at tln^ time of 
 Confederation aiul which confirined the provisions of the Constitutional Act of 1791, the 
 Governor of the Province of ("aiiada convened the Parliament in the nam ■ of Her 
 Majesty (sec. 4) as he .still does under Art. 81 of tlie Federal Union Act; pn.Dgued it 
 in the same name (sec. ."50) ; in the name of Her Majesty, gave assent to or refused to 
 sanction bills (si^c. .'57) ; and, a very remarkable fact, by section ."I'J it was enuoteil that 
 the exercise of the functions of Governor should be subject to Her Majesty's orders ; a 
 provision which is not repeale(l by the Confederation Act, but is still in forct; under 
 section 6'y of that Act hereinabi)ve recited. If that law intended to sul)ordinate the 
 exercise of the functions of Lieutenant-* iovernor to the control of the Governor-(ieneral, 
 as his otficer, would it not have modified the provisions of section .^)9 of the Union Act of 
 1^40 in order to apply it to the Governor-General, instead of simply keeping it in force 
 and leavinir the exercise of the functions of Lieutenant-Governor to be subject to the 
 orders of Her Majesty. It is equally to b(; noticed that the powers of the fJovernor, 
 created by the Constitutional Act of 17'Jl, are not only not repealed, but, on the con- 
 trary, are re-enacted in the Union Act of IStO ; and, for further security, the latter law 
 has a special provision that the powers conferred upon the Governors by the old consti- 
 tution are continue>l by the new. 
 
 Let ine, liowever, continue the enumeration of the powers of a Lieutenant-tJovcrnor 
 under the Federal Constitution. He forms, as we have already seen, the tirst l>ranch of 
 the Legislature (sec. 71 1. In Quebec he appoints by instrument under the Great Seal the 
 legislative councillors, in thfi nnme of the (Jiteen, and not in that of the Governor-General 
 (a provision re-enacted from the preceding Con.stitutions of 1791 and 1840). If a vacancy 
 in the Legislative Council of Quebec should occur, by resignation or otherwise, the 
 Lieutenant-Governor, in the name of Her Majesty, tills the vacancy, by appointing a new 
 
 2 
 
18 
 
 legislative councillor (7')\ He appoints the Speaker of the Legislative Council of Queliec 
 (77). It is not liere stated tliat it is in the name of Her Majesty, liui was not that 
 omitted to avoid a pleonasm ( He tixes the time for the elections and causes the writs 
 to be issued (sees. S| and Hit). No appropriation of the puhlii' revenues or taxes can be 
 made by the Legislature, unless previously reeoinmended Viy the Lieutenant-CJovernor 
 (sees. .")4 and 90 1. 
 
 Are not th<se fuin tions of the Lieutenant-dovernors royal functions, which the 
 Sovi-reign, as chief executive magistrate of the nation as the tirst branch of Parliament, 
 exerci.ses i)i Knglan<l, and which none other than his representative can exercise in a 
 colony? These functions are numerou.s, as we Imve just seen, but were they only to 
 include twu of the powers explicitly granted by the Federal Union Act, the appointment 
 of legi.slative councillors in the name of the Queen (sec. 72) and the convening of the 
 Legislature in the same name (.sec Sii), this double prerogative aflbrds, beyond doubt, the 
 proof that he is the mandatary of the .Sovereign. In fact, he acts directly in the name 
 of the t^ueen in the exerci.se of these two powers, and not in that of the (Jovernor- 
 General : the choice of councillors no more rests with the (iovernor-Ueneral than that of 
 any other Provincial appointment, and to the t^ueen alone belongs the power of convening 
 any Legislature in her empire, from the Imperial Parliament to the legislative body of 
 the humblest colony, since this convening is a prerogative of the executive, residing solely 
 in the Sovereign and in the colonies exercised througli the Governors. 
 
 It is evident that, both from the legislative and executive point of view, the royal 
 prerogatives which in England are not tiie personal appanage of the Sovereign, but are 
 the property of the peopl(>, and which the Sovereign holds in tru.st to exercise them in 
 the interests of the Briti.sh nation— are equally exercised in the Provinces by the Queen, 
 not lu'ire however to her personal profit than in the mother country, but for the people of 
 the Provinces, \\ ith respect to whom these prerogatives have not lost their character of a 
 trust; and that not being able to exercise them herself she has delegated their exercise to 
 the Lieutenant-Governors who are her mandataries. 
 
 I now come to the objection that the Legislatures are not called Parliaments. 
 
 What is a Parliament! A Parliament is, "a meeting or assembly of persons for 
 conference or delil)eration." In its judicial sense the word has only the value given it 
 by the custom of different countries, and it has no accepted determined meaning, to signify 
 the powers belonging to one or more Legislative Assemblies. Thus in Italy, Saxony, the 
 Duchy of Baden, in Sweden, Roumania, England and in several of its Colonies, New 
 South Wales, Queensland, South Australia, Tasmania and Victoria the Legislatures are 
 called Parlianieiits ; in Austria, the legislative body is called Ruicltsrnth, Riysdag in Den- 
 mark, Reichstag in Germany, Hungary and Wurtemburg, Corps IJ-gislatif in France, 
 Boulc in Greece, Cortes in Spain and Portugal, Congress in the United States, and in 
 several countries of South America, Brazil, Peru, Honduras, etc. If for the tirst named 
 countries it is asked, is the Legislature a Parliament 1 the reply would be in the affirma- 
 tive, and in the negative for the others. 
 
 In the old Provinces which now form the Canadian Confederation, the Provincial 
 Legislatures were indifferently called Parliaments or Legislatures. It was held that they 
 were jnutfitis mutandis clothed with the same power as the British Parliament, and (until 
 the Union Act of 1840, which conferred upon the Legislative Assembly the absolute right 
 of electing the Speaker) when the latter claimed from the Governor or Lieutenant-Governor 
 the confirmation of his election, he cli'.imed the pnrliamentary privileges which are rrcog- 
 nizcd in the English Parliament. 
 
 The name of "Parliament" was giv^n to the Legislatures of the old Provinces in a 
 host of official, parliamentary and legislative documents ; even in Acts of the British Par- 
 liament itself. The word " Parliament" as a synonym of "Legislature," was so familiar 
 under the old system, that tlie resolutions of the Quel)ec conference make use of both terms 
 jointly to signify the legi.slative body of the Confederation. "There shall be a general 
 Legislature or Parliament for the federated Pro\inces, composed of a Legislative (Jouncil 
 and a House of Commons," says the Gth of *' ...-le resolutions. The 41st says: "The local 
 Governini'nt and Legislature of each Pro' nice shall be conscructed in such manner as the 
 existing x^egislature of each shall think at." 
 
19 
 
 Thfi control wliich P^iiglan.1, in theory, possesses over the Colonies, exercised in legia- 
 latinji for them or in n-pealiiii,' their h-gislation, is aii act of h-gislative power, that is to 
 siiy, <)f parliaiiifiit, whilst the c-lu or disallowance of the laws is an act of executive power, 
 tliat is to say, of the Sovereign acting with tic advice of his Council ; and it is the same 
 with the disallowance l.y the Governor-Cn-n. ral of provincial laws. This disallowance, 
 whicii is only a prohil.ition from carrying into execution a colonial law, that might 
 trench upon imperial prerogatives or givf rise to serious conflict hetwern the rights of the 
 Empire and those of the Colonies, has always been and still is considered in England, not 
 as an act of legislation, but of executive authority. 
 
 For the same reason of avoiding i-ncroachmeiit by local legislation upon imperial 
 interests and feileral legislation, and contlicts bt^tween "both legislations, and to facilitate 
 this double supervision, which is better exercised upon the spot than in England, the 
 federal Union Act placed tiiis right of Mo in the hands of the Governor-General ; but it 
 is not as a branch of the Parliament and as administering legislative authority that he 
 exercises such right, but as repre?;;nting the executive authority of the Confederation ; 
 and in the exercise of this authority he acts upon the advice of his Council, who are res- 
 ponsible for such, as for all other advice. 
 
 Nothing in tlic Ferleral Union Act rebuts the assertion that the confederated Prov- 
 inces are identically the; old Provinces, with the exception, however, of the Provinces of 
 Quebec and Ontario, divided into two as they were before the Union Act of 1840, under 
 the Constitutional Act of 1791. 
 
 I will now shew that this Union Act itself, in express terms, establishes this propo- 
 sition. The preamble states : " Whereas the Provinces of Canada, Nova Scotia and New 
 Brunswick have expressed their desire to be federally united into one Dominion, (section 
 3) it shall be lawful for the Queen .... to declare .... that .... the Provinces of 
 Canada, Nova Scjtia and New Brunswick, shall form and be one Dominion under the 
 name of CJanada. (Section 5.) Canada shall be divided into four Provinces, named Ontario, 
 Quebec, Nova Scotia and New Brunswick." 
 
 And the Act continues thus to speak ot th(> Provinces, whose existence, as old Prov- 
 inces, it recognizes, without saying a word of the creation of new Provinces. We have 
 just seen that the Legislatures are compose>l of the Queen, represe'ited I y the Lieutenant- 
 Governor, and, for Quebec, of the Legislative Council and Legislative Assembly ; that the 
 executive power resides in the person of the Lieutenant-Governor, as representing the 
 Sovereign, ami that the organization of powers is the old provincial organization, notwith- 
 standing the disallowance of the Bills of the Legislature by the Governor-General and 
 the appointment and removal of Lieutenant-Governors by that officer. This organization 
 of powcis would alone be sufficient to shew that the constitution of the Provinces re- 
 mained identically the same, but the Constitutional Act goes further and completes tliis 
 proof, by declaring (section 88) that "the Constitution of the Legislature of each of the 
 Provinces of Nova Scotia and New Brunswick shall continue as it exists at the Union." 
 
 The Union Act further contains provisions respecting the Constitution of Quebec 
 and Ontario, only becau.se of the dis-union and the inequality of the provincial represen- 
 tation of these Provinces. 
 
 The third paragraph of the prea ble of tlie Union Act, which states : " It is expe- 
 dient, not only that the con.stitution of the legislative authority in the Dominion be pro- 
 vided for, but also that the nature of the Executive Government therein be declared," and 
 which does not extend this provision to the Provinces, corroborates this assertion. It was 
 decided at the Quebec conference (Art. 41) that : " The local Government and Legislature 
 of each Province shal' be constructed in such manner as the existing Legislature of each 
 such Province shall provide." 
 
 I have stated that the povvers of the Provinces could not be taken from them, except 
 by the constitution o;- by the abandonment made by them. It is one of the points of the 
 doctrine hostile to local powens, that in enteriuir into confederation, the Provinces returned 
 to the Imperial Government all the rights theretofore possessed by them, as well as all 
 their property, so that a new distribution thereof might be made between them and the 
 Federal Government. 
 
 This doctrine is contrary to all the political events, which preceded, accompanied and 
 
20 
 
 followed Coiift'dfration ; it is altogether iinprol>al)lt' and we must say is ri'j)U^iiaiit to cuin- 
 inoM sense. Wliy slioulij the Province of Cjueltec, for (.'xanipie, iiave, on a dirt>ful day, 
 with light-hearted j^aiety abandoned its rifjlits, the most sacred, <;iiaranteed hy treaties and 
 pres(!rved \>y seeular contests, and sacriticed its laiiLjuai,'!', its institutions and its laws, 
 to enter into an insane union wliich, contracted under these conditions, would have beeu 
 the cause of its national and political annihilation ? And wliy should the other Provinces, 
 any more than <.^u(!()ec, liavc consented to lose their national existence and consummate 
 this (xiliticai suicide 1 
 
 This principle, that the Provinces retained their old powers when they entered Con- 
 federation, and liave, under Confederation, continued to he <^over:ied hy their former Con- 
 stitutions, was judicially consecrated hy the Court of Appeal in the Tanneries case. At 
 least the majority of the (jourt deciiled in that .sense. 1 will cite the opinions of Chief 
 Justice Dorion ami of Judge Sanborn. 
 
 " DoRiON, C. J. : We know that by the Confederation Act th<' Legislatures of the 
 several Provinces are not merely onlinary corporations, in the onlinary sense of the word. 
 They are, no doubt, corporations in one sense, who derive their authority from superior 
 authority to which they are bound, but not in that limited sense in which we usually take 
 the word corpo ation. Tliert! is no ditlerence between the powers of the Local and 
 Dominion Legislatures within tiieir own spheres. That is, the powc'rs of thi^ Local 
 Legislature, within its own sphere, are co-extensive with the powers of the Dominion 
 Government \ithin its own sphere. The one is not inferior to the other. I tind that 
 the powers of tne old Legislature of Canada are extended to the Local Legislatures of the 
 different Provinces. We have a Government modelleil on the British (Constitution. We 
 lia%'e responsible government in all the Provinces, and these pow^ers are not introduced 
 by legislators, but in conformity with usage. It is founded on the consent and recog- 
 nition of those principles which guide the British Constitution. 1 do not read that the 
 intention of the new consii'ution was to begin an entirely new form of government, or 
 to deprive the Legislature of any of the powers which existed before, but to ell'ect a divi- 
 sion of them some of them arj given to the Local Legislatures, but 1 (ind none of them 
 curtailed. 
 
 " In substituting the n, v legislation to the old, the new Legislature has, in all those 
 things which are special to th(. I .ovince of Quebec, all the rights of the old Legislature, 
 and they must continue to remain in the Province of Quebec, as they existed under the 
 old constitution.'" 
 
 "Sanhoun", J. : The British North America Act, LS07, was enacted in response to 
 the petition of the Provinces of Canada, Nova Scotia and New Brunswick, as .stated in 
 the preamble of the Act, to be federally united into one Dominion under the Crown of 
 the United Kingdom of Great Britain and Ireland, with a constitution similar in 
 principle to that of the United Kingdom. The powers of legislation and representative 
 government upon the principle of the British constitution, or, as it has commonly been 
 called, r(>sponsible government, were not new to Canada. They had been conceded to 
 Canada and exercised in their largest sense from the time of the Union Act of 1840, and 
 in a somewhat more restricted sense from the Act of 1791 to 1810. The late Province 
 of Lower Canada was constituted a .separate Province by the Act of 1791, with a 
 Governor, a Legislative Council and a Legislative Assembly, and it has never lost its 
 identity. It liad a separate body of laws, both as respects statute and common law : in 
 civil matters no powers that had been conceded were intended to be taken away by the 
 British North America Act, 1867, and none, in fact, were taken away, as it is not the 
 wont of the British Government to withdraw constitutional franchises once conceded. 
 This Act, according to my understanding of it, distributtid powers already existing to be 
 exercised within their prescribed limits, to diffenmt Legislatures, constituting one central 
 Legislature and several subordinate ones, all upon the same model, without destroying 
 the autonomy of the Provincf-s, or breaking the continuity of the respective Provinces. In 
 a certain sen.se, the powers of the Federal Parliament were derived from the Provinces, 
 subject, of course, to the whole being a colonial dependency of the British Crown. The 
 
21 
 
 Proviticos of Qui'licc an.l Ontario .m- l.y the sixth section of the Act, dwlarcd to hv the 
 Kaine that formerly compriscl I'lipcr an<l Lower Canada. This reeoirnizes their previous 
 existeiio! prior to tlie I'liion A>-t <.f ISJO. All thr(.iii,'h the Act. tlie^e Provinces arc 
 recognized as havin;; a invvions existence and a constitutional history upon which the 
 new fabric is hased. Their laws remain nnchanqeil and the constitution is preserved. 
 The offices are the same in name and duties, except as to the office of Lieutenant IJovernor, 
 who is [)lace(l in the same relation to the Province of t^>ueliec tiiat the Covernor-Ceiieral 
 RU.stained to the late Province; of Canada. I think it would he a j^reat mi.stake to ijiuoro 
 the past governmental powers confern^d upon ami exercised in the Province, now calhd 
 Quehec, in determining the nature and privileges of the Legislative Assembly of this 
 Province. The remark is as common as it is erroneous, that the Legislatures of the 
 Provinces are merely large municipal corporations. It is true that every Government is 
 a corporation, Imt every municipal corpfiration is not a Covernment. Consider the 
 powers given exclusively to the I'rovincial Legislatures. They have sole jurisdiction 
 over education, property and ci\il rights, the administration of justice and municipal 
 institutions in the Proviiue, suhji-cts which atfect vitally the welfare of society. The 
 very court which enables us to determine the matter now under consideration holds its 
 existence by the will of the Provincial TiCgislature. Xo such powers were i ver confei-red 
 upon mere municipalities i,i tlie ordinary .sen.se. They are subjects which in all nations 
 are entruste<l to the highesi legislative power. I^egislatures make laws, niunicijial cor- 
 porations make by-laws. If these legislative powers confiili-tl to Provincial Legislatures 
 are not to be exercised in all their amplitu<le with the incidents attaching to them, they 
 can be exc-rcised by no other sovereign power, while our present constitution exists.'" 
 
 The (Jeneral (;overnn\ent can have only tho.se powers whicli are conferred upon it by 
 the Confederated Provinces. This < !overnment is essentially tlie creation of t nose Provinces, 
 as an ordinary pai-tnership is the work of tlie partners. In the absence of contrary provi- 
 sion:!, the particular ( Jovernments are managed by the organic rules which constituted them 
 before forming the confe<leration, and preserve all the powers which beloiiged to them, if 
 they do not delegate a part to the Central (Jovernment. In the case of the Canadian con- 
 federation, the Provinces did not attribute to the Federal (lovernment powers of & 
 diflerent nature from tho.se that each before possessed. They delegated to it a portion 
 only of their local powers to form a central j)Ower, tliat is to say, they allowed it tlie 
 management of thr-ir affairs of a gen(M-al c:haracter, but retained their own (-Jovernment for 
 their local affairs. ''^ was a concession of existing pow<-rs that was made to it and not a 
 distribution of ncnv ] vi^rs. The powers of tin; (Jentral Government came from the 
 Provinces, as those of a ordinary partnership come from the partners ; to invert the 
 order and state '--"t the ^ vers of the Provinces come from the Central Government, 
 wt)uld be to rever.se i. "^.V \\ order of things, place the effect whc the cause should 
 be, and have the cause govtj d by the effect. 
 
 I have said that if ther- s relative inferiority and superiority between the Federal 
 Government iiiid the Provincial (iovernments, such inferiority is to b(! found with the 
 Federal Government, and the superiority with the Governments of the Provinces. But 
 it is not ncicessary to make this comparison in order to establish their respective com- 
 petence ; let us rather say that there is equality between them, or rather a similarity of 
 power.s, and t"iat each of the two powers is sovereign within its respective spliere. 
 Blackstone says : " By sovereign power is meant the making of laws, for wheresoever 
 that power resides, all others must conform to and be directed by it, whatever appearance 
 the outw^ard form and administration of the (Jovernment may put on." According to this 
 principle, whatever may be the respective im- jrtance of the powers conferred upon each 
 of the Governments in the exercise of their j, jwers, each having an independent authority 
 is equal in authority. 
 
 In the United States, the central power is subordinate to the Government of the 
 States ; it is 'rem the States that Congress draws its authority, and all powers, not con- 
 ferred by the constitution upon Congress, belong to the States. Canadian federalists 
 wish to lay down this principle of the constitution of the United States as special and 
 exceptional, contrary to the principles of all other confederations and notably to that of 
 the Canadian confederation. We maintain, on the contrary, that this superiority of the 
 
22 
 
 States over Congress is a gonera! principle, and is dorivod from tlie nature of confedi-ra- 
 tions themselves; that the same principle prevails in the Helvetian and Germanic 
 confederation, and in all other possible confederations ; that it is of the e.,sence of the 
 federal system ; that the Central (Government has only thos(! powers wliich are conferred on 
 it by the States, and the latter retain the remainder, for the very simple reason that the 
 Central Government is the creation of the several Governments that have given it the form 
 and the totality of powers whicli they deemed suitable, and no more. 
 
 Hut, once more, this does not give rise to relative autliority, since each of the 
 (iovennnents remains absolute master and independent of the other within its sphere of 
 authority. It is legislative equality for the Canadi:in confederation. 
 
 Starting from the preconceived idea that the Provinces are subordinate to the 
 Federal Parliament, an applicatioTi of this principle has been sought in the distribution of 
 powers, made by sections 91 and 92 of the Confederation Act, in the text of these article.s. 
 
 The dominant idea of these two sections is to attribute the power of legislating upon 
 matters of general interest to the Parliament of Canada, and the power over matters of 
 local interest to the Provinces. It is this double idea which section 91 and sub-section 
 16 of section 92 set forth in stating, section 91 : "It shall be lawful for the Queen, by 
 and with the advice and consent of the Senate and House of Commons [that is to say 
 the Parliament], to make laws for th(> peace, order and good government of Canada, in 
 relation to all matters not coming within the classes of subjects V)y this Act assigned 
 exclusively to the Legislatures of the Provinces ;" and section 92, in placing under the 
 Legislative control of the Provinces " generally all matters of a merely local or private 
 nature in the Province.' These general and local powers of the Parliament and Legis- 
 latures extended to objects specially set forth. The line of demarcation is found in the 
 limits assigned to the two powers. It is true that paragraph 37 of Article 29 of the 
 n^solutions of the conference assigned all general matters to Parliament, and paragraph 
 IS of Article 43 assigned local matters to the Provinces, but such assigning had no 
 definite character. From the nature of things, all the legislative powers of a nation are 
 local powers in so far as they do not extend beyond the territorial limits of the country. 
 It is only when two countries join together and submit to a General (lovernment, while 
 preserving their Local Government, that the powers attributinl to the Central Govern- 
 ment become general, and those reserved to the individual (Jovernments remain local. 
 
 Outside of this granting or concession, altogether arbitrary or conventional, there 
 cannot be a general rule to establish the line of demarcation between these general and 
 local powers. Thus, in stating that all matters of a general character, not reserved for 
 the Provinces, belong to Parliament, and those of a local nature, not assigned to Parlia- 
 ment, shouhl belong to the Legislatures, tlie draft of the C'onfederation Act stated nothing, 
 or only repeated that which had been d'claretl in the distribution of the .special subjects 
 assigned to each of the Legislatures by the remainder of article 29 and by article 43. As 
 these articles, dealing witli particular powers, might have omitted a large number, and a.s 
 the working of the Governments might be impeded h\ these omissions, the authors of the 
 Federal Union Act, who gave the finishing touch to the draft in England, felt that, to 
 remedy this serious inconvenience, it was nect.'s.sary to establish another line of demarca- 
 tion and another rule of competence, by means of which they remedied this omission by 
 having those omitted castas entered in one or the other category of powers ; and, to attain 
 this end, they amended the draft in the manner shewn by sections 91 and 92. 
 
 Let us consider the effect of the.se amendments. Section 91 of the Feileral Union 
 Act states : that it shall b(» lawful for Parliatnent to make laws in relation to all matters 
 not coming within the classes of subjects assigned to the Legislatures. These subjects 
 beingtho.se specially enumerated in section 92, and followed l)y a distribution of all m.at- 
 ters of a mertdy local or private nature in the Proviui'e, it follows that this limitation of 
 their local or private matters was taken f(U' the gt>neral line of di'marcation between the 
 powers ; that their local or private matters, including those specially enumerated in section 
 92, remained within the competence of the local powers ; and the rest of the powers 
 neces.«ary for the peace, order and good government of Canada, with those specially set 
 forth in section 91, were attributed to the powers of Parliament, and must have been con- 
 siden^d as general powers. 
 
23 
 
 But, as these latter powers specially assigned to Parliament Ijy section 91, were 
 powers withdrawn from the Provinces, and before Confederation were local powers, 
 to remove doubts upon the conventional nature of these powers declared to be general, 
 section 91 adds : " and for greater certainty, but not so as to restrict the generality of the 
 foregoing terms of this section (that is to say, to prevent those omitted powers from 
 being considered otherwise than as pow(;rsof the F»-d(>ral Parliament) it is hereby declared 
 that (notwithstanding anything in this Act) the exclusive authority of the Parliament of 
 Canada extends to all matters coming within the classes of sulijects," etc. 
 
 The rule of distribution of federal poweis then is, that all which is not local and, as 
 such, does not belong to the Government of the Provinces, belongs (including the powers 
 enumerated in section 9 1 , which will always be considered as general powers) to Parliament. 
 
 Sections 91 and 92 might, perhaps, as well have been couched in the following terms : 
 " The competence with respect to matters of a local or private natiire, including the powers 
 s|)ecially enumerated in section 92, which shall always be considered as local powers, shall 
 belong to the Legislatures, and the reinainde of the legislative powers necessary for the 
 peace, order and good government of Canada, including the special powers enumerated iu 
 section 91, shall be considered as general powers and shall belong to Parliament." 
 
 It was also to avoid confusion and doubt as to the concession to Parliament of com- 
 petence in these matters, that section 91 added : " and any matter coming within any of 
 the classes of subjects enumerated in this section shall not be deemed to come within the 
 class of matters of a local or private nature, comprised in the enumeration of the classes 
 of subjects by this Act assigned exclusively to the Legislatures of the Provinces." 
 
 I cannot overlook the difficulties in interpretation occasioned by a phraseology so 
 intricate and so confused, and in order to understand it better, we might again further 
 alter the wording of th(?se articles, which might be summed up as follows : " With the 
 exception of the matters enumerated in section 92 and of all which are of a local or 
 private nature, which shall be within the competence of the Provinces, Parliament shall 
 have power to make laws necessary for the good government of Canada, upon all other 
 matters, including those enumerated in section 91." 
 
 In taking this rule for a guide, let us see what would be the natural and logical pro- 
 cess to practically establish the line of demarcation between the two powers. 
 
 If the IGth paragraph of section 92, granting to the Provinces legislative power 
 over matters of a local and private nature, had not been joined to the fifteen other para- 
 graphs, a rule of easy application would have presented itself. The competence of the 
 Provinces would be limited t(j particular matters or to a i.Tticular class of laws, the 
 remainder would iKiloiig to the Feileral Parliament, and it w. ,at, in that case, have been 
 truly said, that all powers not delegated to the Legislatures i-iong to Parliament. The 
 competence of the Provinces would have been special, an 1 that of Parliament general. 
 But it was not so, and the law has granted to the Provim-es power over all local matters, 
 in addition to those specially enumerated in the paragraphs preceding paragraph 16. It 
 follows that the concession to the Provinces was general, for the aggregate of local and 
 private laws constitutes a generality 
 
 I have stated that each of the Provinces was clothed with all the powers conferred 
 upon the two Legislatures, the powers conferred upon Parliament were withdrawn from 
 the Provinces. All the powers of the Provinces, 1 also stated, were powers of a local 
 order, that which remained retained its nature and that which was withdrawn to be 
 attributed to Parliament was only by a fiction called general, lii'ing in reality a particular 
 competence. As a general rule, then, all powers belong to the Provinces and the powers 
 of Parliament belong to it only as an exception; the powers of Parliament come from 
 the Provinces, which are the source of all legislative authority in tin; Confederation, and 
 the legislative power of Parliament is <inly a residue of the Provincial legislative power. 
 In this order of ideas, it siiould be .said that all power which is not federal has remained 
 Provincial. To ascertain the natun; of any power whatever, it is necessary, then, to 
 examine all classes of local subjects, and it is only when this power does not enter into 
 one of th(«c classes and when it interests all the Provinces, that this power is a federal 
 power. If it interests only one or more of the Provinces, without interesting all, it 
 remains within the provincial sphere. 
 
24 
 
 Attain, the provincial coinpotence constitutes the rule, the federal the exception. 
 
 This conclusion is in accordance with the spirit of legislation, and with the practical 
 end which the authors of confederation had in view. 
 
 \t the outset of confederation no person had any idea of forming a political as.socia- 
 tion ; it wus rather a commercial league of the nature of the Hanseatic league or the 
 German Zollverein, than a confederatit)n of the nature of the Germanic or Helvetian 
 confederation, which th.i Provinces wished to form lietween themselves. This view results 
 from historical documents and the debates in the Provincial Legislatures upon tlie subject 
 of the resolutions of the conference. It was only gradually and later on that the basis 
 of their association was enlarged and the circle of their common interests extended to form 
 a General (Jovernment. 
 
 Whatever may have originally been the importance mon^ or less great of their general 
 relations, the idea that prevailed was to have the interests common to all the Provinces 
 managed by the General Government and to leave the Provinces in pos.session of their 
 particular Governments for the internal management of their private interests. 
 
 Ht-irting from this idea, upon any given point, the object of any inquiry as to the 
 competence of either power must be to ascertain whether the subject upon which legisla- 
 tion is sought affects only one or more of the Provinces or all of them. If this object 
 comes directly and spt'cifically within the sphere of one of the two powers, as marked out 
 by sections 91 and 9'2, there is no doubt that it must be attributed to the power which was 
 specifically clothed with such competence. Thus, for example, if the object has anything 
 to do with the postal service or the defence of the cr)uutrv, it would be federal : if with 
 the civil law or the ailministration of justice, it would be jirovincial ; but if it does 
 not fall within the special attributes of any of thes(> powers, that is to say, within any 
 of the 21t paragraphs of section 91 and the 15 paragraphs of section 92 or what may be 
 inferred from them, then under the general provisions of paragraph 16, it must first be 
 ascertained whether it is local, aud for this the subject matter of the two sections and the 
 general spirit of legislation must be incjuired into. If this subject affects only one or 
 more Provinces, as has been stated, it must be left to be disposed of by the Legislatures ; 
 if it affects all the Provinces, it is within the competence of Parliament, and in doubtful 
 cases, as that only which is federal lielongs to Parliament, and tlie rest should belong to 
 the Provinces which must have originally controlled and now control all which is not 
 federal, such subject would bt» treated as local. In a word, in cases of doubt the doubt is 
 decided in favour of the Provinces, which are the source of all the powers. 
 
 It does not always happen, however, that legislation takes such a decisive character ; 
 there are hosts of subjects which affect both general interests and the particular interests 
 of the Provinces, and it is upon this fre(juent division of interests that the federalists 
 ha\e baseil their argument in favour of the Federal Parliament. They say, in cases of 
 doubt, only tho.se matters that are purehj local, and within the terms of paragraph 16 
 of section 92 are of provincial competence and the rest is fed"ral. But this reasoning is 
 evidently based upon false conceptions of legislative princijiles : for, in legislation all the 
 powers are divisible in the same way as the subject upon which they are exercised. If a 
 law, clearly federal, atlects a local interest, this interest is withdrawn from the jurisdiction 
 of Parliameiit, however unimportant such interest may be, as compared to the general 
 object of the law. and cjcc versa for the Province. Foi' instance, let us suppose a com- 
 mercial law ; if this law affects solely the interprovincial intei'ests of commerce, it belongs 
 to Parliament, in the same manner as if it affected only tlie civil interests arising from 
 commercial relations, it would belon" to the Provinces, but if it aflected both the inter- 
 provincial interests and private relations, giving rise to civil interests between traders, it 
 would belong, for its interprovincial portion, to Parliament and for its local portion 
 to the Provinces. To ignore this distinction and say, that in the cases omitted, or in the 
 cases proviiled for, only matters of a purehj local nature an; within the competence of the 
 Provinces, and th;it all mixed legislation belongs to Parliament, is to set up a principle 
 contrary to daily legislative experience, for there is not in legislation any subject purely 
 general or purely local and private. This would be to invade tlie rights of the Provinces. 
 Paragraph 16. in (jualifying as mere/;/ local the matters reserved to the Provinces, made 
 use of a word that was void of meaning and altogether inapplicable. The end of section 
 
25 
 
 91 had first simply called these same subjects local and private ; this corroborates the 
 argument that the adverb merely which precedes them in paragraph 16 of section 92 has 
 no value. 
 
 I have spoken of subjects that might be within the competence of both powers, on 
 account of their double nature, general and local, in connection with the omitted cases in 
 sections 91 and 92. In addition, there exists, for some of the subjects enumerated in 
 those sections, a concurrent jurisdiction growing out of the very attribution of power 
 which gave rise to them. 
 
 Thus, paragraph 3 of section 91 gives as within federal jurisdiction "any mode of 
 taxation,'" and paragrajih 2 of section 92, leaves to the Provinces "direct taxation within 
 the Province in order to the raising of a revenue for provincial purposes." Respecting 
 direct taxation allowed to both powers, and in all cases in which their competence ia 
 manifest by the law, there is no neces.«ity for interpretation and consequently no doubt, 
 the benefit whereof should be accorded to the Provinces against the federal power. 
 
 Section 95 again gives to the Provinces and to the Parliament concurrent power to 
 make laws in relation to agriculture and immigration, to the former in each Province, and 
 to the latter for all the Provinces ; but it is enacted, that the law of the Province shall, in 
 case of repugnance to the federal law, yield to that law and have no effect. Here again 
 it is evident that interpretation is not required, the superiority of the federal law being 
 declared. 
 
 Let us pass now to the powers of the Provinces respecting public property. 
 
 According to the organic principles of confederation, there is a connection betweeu 
 the legislative power.*^ and the right of property. The Provinces entered into tlie federal 
 compact with the entirety of their public property, as they entered into it with the 
 entirety of their political rights and legislative powers. All public property, which was 
 not granted to the Federal Government, remained with the Provinces. In addition to the 
 property, which is disposed of between the Federal Government and the Local Govern- 
 ment by the Act itself, section 117 states, "the several Provinces shall retain all their 
 respective public property, not otherwise disposed of in this Act," a provision that shews, 
 that the Provinces, in entering the Union, had not abandoned their rights of property 
 any more than they had abandoned their legislative powers ; but that tliey had retained 
 all that they had not resigned to the Federal Government. They also each have their 
 separate Budget, and section 126 enacts that the duties and revenues over which the 
 respective Legislatures of Canada "had before the Union, power of appropriation, as are 
 by this Act reserved to the respective Governments or Legislatures of the Provinces, and 
 all duties and revenues raised by them in accordance with the special powers conferred 
 upon them by this Act, shall in each Province form one consolidated revenue fund to bo 
 appropriated for the public service of the Province, " and section 109 iu addition to these 
 provisions adds "all lands, mines, minerals and royalties, belonging to the several 
 Provinces of Canada, Nova Scotia and New Brunswick at the Union, and all sums then 
 due or payable for such lands, mines, minerals, or royalties shall belong to tlu; several 
 Provinces of Ontario, Quebec, Nova v'cotia and New Brunswick in which the same are 
 situate or arise." 
 
 It is objected, that the Provinces have not, as tlie federal power, a Civil List, but this 
 is an error Out of the consolidated fund, established by section 1 26, a certain sum is set 
 apart to defray the civil expenditure of the Province, and, if it is objected that the 
 Province has no Civil List, as was done by a judge in the (juestion of an escheat mooted 
 between the Federal Attorney-General and the Attorney-General of Quebec, that the 
 Civil List is granted to the Sovereign in England for her personal expenses and that ours 
 does not contain a similar grant, inasmuch as the Province does not defray the salary of 
 the representative of royalty, we would answer that if we do not give a grant to the 
 Sovereign, we pay the officers of the (!ivil Government, and that it is from this application 
 of the public funds that the Civil List gets its name. Some French writers even think 
 anomalous the English practice, which calls a Civil List t.ie grant to a Sovereign who does 
 not pay the civil expenses of his Government, expenses that are paid by the State. As 
 with finances so with respc^ct to legislation and government, the Provinces then are, with 
 the exception of the cases provided for, and which wo have enumerated above, independent 
 
26 
 
 of the Federal Government and in the sphere of their property, rights and powers, they 
 are on an equality with it. If it were not that the Imperial Sovereignty over-rides all 
 our public organization we would say that they are sovereign in this sphere, as it is in its 
 sphere. In conclusion, I hope that I have made good my two last propositions, as well aa 
 the first, and that judgment will go in favour of the Province of Ontario, the Respondent. 
 
 THE REPORT OF THE HONOURABLE THE ATTORNEY-GENERAL RESPECT- 
 ING THE ESTATE OF THE LATE ANDREW MERCER. 
 
 [R^/erred to Ante, p. 2. Taken from Ontario Sessional Papers for 1878, Vol. 4, ^o. S8.'\ 
 
 20th February, 1878. 
 
 The undersigned has had under consideration the circumstances of the Estate of the 
 late Andrew Mercer, of the City of Toronto, which has been adjudged by the Court of 
 Chancery to belong to the Crown, and has thereby become the property of the Province, 
 the said Andrew Mercer having died unmarried and intestate, without heir or next of kin. 
 
 The estate consists of real and personal estate, valued now at about $140,000 or more. 
 
 The said Andrew Mercer died on the 13th June, 1871, at Toronto. At the time of 
 his death, one Bridget O'Reilly, by whom he had had a son, Andrew, 20 years before, 
 was living with him as his housekeeper. The general supposition was that the deceased 
 himself was illegitimate. 
 
 Young Mercer has lately been setting up that he was the lawful •'on of the deceased ; 
 but no such thing was pretended by him or his mother at the time of Mr. Mercer's death, 
 nor for four years afterwards. When the claim was made, a trial was ordered and took 
 place; it lasted several days; the claimant had able counsel, the evidence was fully gone 
 into, and the decision was against the claim. The learned judge, in pronouncing judg- 
 ment, said that he "had not a shadow of a doubt that there had never been a marriage, 
 and that Amlrcw Mercer, junior, was not the legitimate son of the deceased." Having 
 read the evidence, the und(!rsigned concurs entirely in the view thus expressed. 
 
 During the tirst four years after Mr. Mercer's death, the young man was in frequent 
 personal communication with the Attorney-General's Department under its successive heads, 
 and with the successive solicitors who acted on behalf of the Province in the affairs of the 
 estate; and it was always assumed in these communications and otherwise that there 
 had been no marriage between the deceased and Briilget O'Reilly, and that Andrew was 
 the natural son only of the deceased ; and the only question as to the heirs of the deceased 
 was whether he had left any unknown collateral heirs, or whether his estate went to 
 the (.'rown. Accordingly, the papers of the deceased were taken possession of by Mr. 
 Gamble, as Solicitor for the Crown. On the 7th December, 1871, a commission of escheat 
 was ordered to be issu<Hl on the recommendation of the then Attorney-General, Hon. J. S. 
 Macdonald. A commission was issued accordingly, and the (Jommissioner notilied thereof 
 on the loth December, 1871. On the 23rd May, 1872, Letters of Administration were 
 issued to the then Attorney -General, Hon. Adam (Vooks, as representing the Crown; and 
 on the 30th June, 1874, the administration was transferred by the Surrogate Court to the 
 undersigned, who had succeeded Mr. Crooks as Attorney-General. The Letters of Ad- 
 ministration in both instances recited that Mr. Mercer had died unmarried, and without 
 lawful issue. 
 
 Meanwhile, the Solicitors for the Province advertised in the London Times (England), 
 for the heirs and next of kin, if any, of the deceased ; and steps were taken for getting in 
 and securing the personal estate. Several persons made claim to be the heirs or next of 
 kin; young Mercer was not amongst these claimants. He and his mother both were 
 
27 
 
 permitted to remain in the occupation of the premises on which they had been living with 
 the deceased during his life ; and the son was allowed to receive the rents of certain other 
 premises which Mr. Mercer had contracted verbally to buy for his benefit, but' had died 
 without procuring to be conveyed. 
 
 The young man having married, he pressed for some further allowance to be made 
 for him out of the estate, on the supposition that it had gone to th(> Crown for want of 
 heirs, but there was a difficulty in acceding to this request until it should be authoritatively 
 determined that the intestate had no collateral heirs or next of kin. 
 
 In order to procure an adjudication on this point, the undersigned, with thi' concurrence 
 of the son, made a Report for the information of His Honour the Lieutenant-Go\<Tnor, bear- 
 ing date 30th October, 1874, wherein the undersigned stated that lie had had under consider- 
 ation the claim of the said Andrew, therein described as the reputed son of the late Andrew 
 Mercer, to a share in the estate left by his father, who died intestate and, as was believed, 
 without leaving any lawful heirs or next of kin; that the sum of $7,7rl.46 was then in 
 deposit in the Merchants' Bank of Canada to the credit of the undersigned as administrator 
 of the estate; that no satisfactory- evidence of title had been furnished by any of the 
 persons claiming to be heirs of the deceased ; tliat it appeared to be without doubt that the 
 said Andrew was the son of the deceased ; that it had been shewn to the satisfaction of 
 the undersigned, that the deceased had intended to make some provision for the said natural 
 son ; that for that purpose, the deceased had entered into an agreement with the owner 
 for the purchase of a farm, the conveyance whereof was to be made to the said Andrew; 
 that Mr. Mercer's death had occurred before the intention and instructions were carried out ; 
 and the undersigned submitted, that, in the event of its being determined that the Crown 
 was entitled to the real and personal estate whereto the said Andrew Mercer died 
 entitled, a grant of some portion thereof should be made to the said Andrew (h.'s reputed 
 son); that the undersigned was of opinion that until such question .should be determined 
 by some Court of competent jurisdiction, it would be premature to consider what portion 
 of the estate should be so granted ; that the undersigned was of opinion that, if a portion 
 of the said estate were granted to the said Andrew, to be paid over under the authority 
 of the Court of Chancery, after enquiries respecting next of kin had been made according 
 to the practice of the Court, and on its being judicially ascertained thereby that the said 
 Andrew Mercer had dif;d without leaving any next of kin— a determinition of the said 
 question might be hastened by such conditional grant ; and the undersigned therefore 
 recommended that, subject to the above condition, a grant of 81,000 out of the moneys 
 belonging to the estate of the said deceased in the hands of the undersigned as adminis- 
 trator, should he made to the said Andrew. 
 
 An Order in Council was thereupon passed and appro^ ed by His Honour the Lieu- 
 tenant-CJovernor, on 20th November. 1S74, in the words following : — 
 
 " Upon the recommendation of the Honourable the Attorney-General, the Committes 
 of Council advise that your Excellency grant to Andrew Mercer, a reputed son of the 
 late Autlrew Mercer, of the City of Toronto, Esquire, the sum of one thousand dollars, 
 portion of the personal estate of the said late Andrew Mercer, now in the hands of tlie 
 administrator of the .said estate : The .same to be paid umler the authority of the Court 
 of Chancery after en(juiries respecting next of kin, according to the practice of the said 
 Court, and on its being judicially ascertained thereby that the said late Andrew Mercer 
 died without leaving any next of kin." 
 
 The .said Andrew accepted the said conditional grant, and in order to secure the 
 benefit of it he procured a Bill to be hied by his own Solicitor, on the 3rd of 
 Febru.irv, 1875. His Bill stated, amongst other things, that the deceased had for 
 a ver\ lung period been a resident in the City of Toronto, and was well known by 
 and a"c(iuainted with many of the inhabitants of the .said City, but that none of his 
 friends or acquaintances had ever heard him speak of his family or relations, or of his 
 previous history ; that after his death his papers had been carefully examined, but that 
 they furnished no information as to whether he had any relations; and that they gave no 
 clue to his history previous to his coming to this Province; that for divers reasons it was 
 believed by persons acquainted with him during his long residence in this City that he 
 had no lawful heirs or next of kin. 
 
28 
 
 The Bill of the said Andrew proceeded to state further, that the Plaintiff was the 
 reputed son of the >said Andrew Mercer, deceased, and that the Plaintiff's mother had not 
 heeii lawfully married to the sai<l Aiulrew Mercer. The Bill set forth the conditional 
 grant of ."rl.OOO, and prayed that the amount should be paid, and that if necessary an 
 eucjuiry shoulil he made whether the said deceased left any heirs at law or next of kin liiin 
 survi\ ing. 
 
 An answer to the Bill was filed on behalf of the undersigned, submitting to pay the 
 amount if it should be established before the Court that there was no heir or next of kin. 
 
 The Couri thereupon, on the 11th February, 187"), on the motion of counsel for the 
 Plaintiff, made a decree directing encjuiries to be made whether the intestate left any heir 
 at law or next of kin, and if so who they were. Advertisements were issued under tliis 
 decree, and .several claims had appeared, when, in August, 1(^7"), Bridget O'Reilly and 
 her son set up, for the first time, the ])retence that she had been married to the deceased, 
 that such marriage had taken place a month before the birth of the said Andrew, and that 
 the .said Andrew was himself the heir of the deceased. It was also pretended that an 
 unwitnessed will of the deceased had been discovered accidentally in an old law book of 
 his, in which alleged will reference was made to a wife and son, and to them his estate 
 was thereby declared to be given. The executors named in the will applied to the Surro- 
 gate Court for probate of this paper, and, there being strong reasons for fearing tliat the 
 pretended will was a forgery, and the estate being large, the matter was transferred from 
 the Surrogate Court to the Court of Chancery on the 1st September, 1875. 
 
 On the oth October, 187."), an Order was made V)y the Court of Chancery for the 
 trial of the (juestion, and in January following a trial took place, both as to the alleged 
 will and as to the alleged heirship of tht' said Andrew, junior. After an exhaustive trial, 
 the Court decided, on the 21st January, 187G, that the .said Andrew was not the legi- 
 timate son of the said deceased, and that the pretended will was not the will of the de- 
 ceased, as the undersigned has already stated. Tli(> learned Vice-Chancellor who heard 
 the case was clear that there had been no marriage, and that both a pretended entry 
 tliereof in an old Register and the pretended will w(to fabrications. 
 
 Indeed, looking at the whole evidence, the matter is too clear for any reasonable 
 ([uestion, and the s.iid Andrew, as well as his mother, have acquiesced in the decision. 
 The various claims of others having afterwards been disposed of, the Court, on the 13th 
 September last, made a decree, declaring amongst otiier things, that Andrew Mercer died 
 intestate, anil without heirs or next of kin; that by reason thereof, the real and personal 
 estate of the said intestate had become vested in Her Majesty, and that the Plaintiff 
 was entitled, under the Order in Council, to be paid the sum of 81,000, less certain costs 
 therein mentioned. 
 
 By the Revised Statute respecting Escheats and Forfeitures, the Lieutenant-Governor 
 in Council is autiiorized to grant any land escheated to the Crown or any portion thereof 
 or any interest therein, and to transfer personal estate going to the Crown, or any portion 
 thereof, to any persons having a moral claim on the person to whom such land or personal 
 estates had belonged. 
 
 With respect to Bridget, it has not been suggested that she has, under all the circum- 
 stances, any moral claim to any portion of the estate. Her bad conduct to Mr. Mercer 
 in his latter years, is shewn by memoranda which he left among his papers ; and the fact 
 that she has somehow possessed herself of $12,000 or more which belonged to him and 
 which she now has, are suffici(;nt to disentitle lier to consideration, even if she had not 
 been found to have been a party to a conspiracy to establish a forged will and a false mar- 
 riage. The undersigned recommends that she be left in undisturbed possession of what 
 she has thus obtained, but that no part of the other assets of the deceased be given to her. 
 Indeed, she does not ask for any. 
 
 As to her son, the case is somewhat different. The only part of Mr. Mercer's e.state 
 which he is known to have got, is the farm in Etobicoke of 50 acres, which Mr. Mercer, 
 a few months before his death, bought for him at a cost of $2,780, and procured to be 
 conveyed to Andrew on the 30th September, 1870. 
 
 It further appears that shortly before his death, Mr. Mercer entered into a verbal 
 agreement for the purchase of two adjoining lots (equal to 150 acres) for $9,770, though 
 
29 
 
 the transaction was not coni))leted at the time of his death. The cost of the two hun- 
 dred acres which he thus appears to have designed as the said Andrew's portion would 
 have been $12,o50. 
 
 The undersigned has learned from the son that he has incurred debts amounting to 
 about $1,300, besides a mortgage on the tifty acres above nientione.J. on which a further 
 sum of $2,000 or upwards is said to be due. 
 
 There is evidence that the deceaseil deliberately abstained from making a will, stat- 
 ing on one occasion th it he had purchased land for his boy, and that he could manage to 
 make a living out of it: that he had no relations and would leave his property to the 
 < Government; and saying on another occasion that he had provided or intended to provide 
 for Andrew, and diil not care what became of the rest oi his property. 
 
 Mr. Mercer's manner of living is said to have been extremely simple and economical, 
 and it appears that his personal and household expenses did not' probably exceed $1,000 
 annually, including the support of Bridget and her son. Property which would yield an 
 annual income of that amount would enable the son and his family to live in the manner 
 in which the father had lived, ami to have all the comforts which his father gave himself, 
 and which the son had during his father's lifetime. 
 
 It is ])roper to add that the learned Vice-Chanccllor was of opinion that the son was 
 a party to a conspiracy for making out his legitimacy by the fabrication of the will, and 
 by a pretended entry of the marriage in a register of marriages. It may be observed here 
 that the fabrication of the former was so far plausible that, at lirst, some of Mr. Mercer's 
 friends were deceived by it; and the fabrication of the entry was so nearly successful, that 
 those having the custody of the register at the time of the trial, were led to think that 
 the entry thereof was genuine, though, upon the whole evidence, it was afterwanls estab- 
 lished clearly to be otherwi.se. The Vice-Cliancellor states that young Mercer ref ised to 
 enter the witnt.ss-box, fearing evidently the result of the disclosures he might be compelled 
 to make; and the learned Judge remarked, that it would go far to shake even a strong 
 case, if, as here, after being called, and after having been warned that he would be needed, 
 the Plaintiff walked out of Court when he was required for his examination, and when, 
 in place of throwing by such personal examination what light he could upon the case, he 
 had virtually abandoned it. 
 
 ytill, and notwithstanding the young man's grave misconduct, the undersigned is dis- 
 posed, for the .sake of liis father's memory, to recommend a humane and lii)eral view to be 
 taken as to appropriating a portion of the estate; for the benefit of the young man and his 
 family. Where an estate comes to the Crown for the benefit of the Province, in consequence 
 of the owner's death without heirs, it would be contrary to good morals and to public policy 
 to recognise the right of an illegitimate son to the estate as if he were legitimate. Where 
 an estate is small, and an illegitimate child is in need, it may not be necessary to withhold 
 any of the estate from him. Where the estate is large, as the estate here is, and a portion 
 of it would suffice to establish the illegitimate child in a condition corresponding with that 
 in whicli he was brought up, the surrender by the Crown of much more than is sufficient 
 for that purpose cannot be justified. 
 
 In view of all these considerations, the undersigned recommends that the sum of 
 ??5,000 be appropriated for the payment of the saiil Andrew's hoiui ^fidi; dehta ; that if they 
 are found not to amount to so much, the balance be paid to the said Andrew ; that 
 the purchase of the 150 acres intended for him by the deceased be completed, and 
 conveyed to trustees for the benefit of the .said Andrew and his family ; that a further 
 sum of $15,000 in .stock or securities be transferred to tru.stees on like trusts ; or that in 
 lieu of the said 150 acres the said Andrew have the option of a further sum of $10,000 
 in stock or securities being invested as aforesaid ; making the whole amount S.'}0,000. 
 
 These appropriations leave a large residue, tlie exact amount of which cannot be 
 stated until the estate is realized. 
 
 The property of the deceased was the accumulation of a long life; of economy and 
 thrift. All bear record to his having been mo.st just and upright in his dealings, and 
 testify that he was a kind-hearted, humane, charitable and generous man. 
 
 The undersigned respectfully refers to the Report of the Inspector of Public Charities 
 and Prisons which accompanies this report, and in accordance with the views expressed by 
 
30 
 
 th«' Inspector, tho undersigned recommends that out of the residue of the said estate the 
 sum of $10,000 he appropriatt-d towards the erection of a Provincial Eye and Ear In- 
 linnary in connection with the Toronto General Hospital, to be called "The Andrew 
 Mercer Eye and Enr Intirniary ; '" and a further sum -of $90,000 to the erection of a 
 reformatory institution to be called " The Andrew Mercer Ontario Reformatory for 
 Fe:iiales, ' such institution to be maintained and managed in the same way as the Reforma- 
 tory at Penetanguishene, and to be for the reception of females, irrespective of ago. 
 
 O. MOWAT. 
 20th February, 1S7S. 
 
 Agreeably to the recommendations of the above Report, an Act was passed by the 
 Legislature of Ontario (7th March, 1878), containing the following provisions (41 Vic, 
 chap. 1, .S.S. 2, 3 1 : 
 
 2. Out of the estate of the late Andrew Mercer, deceased, which has escheated to 
 the Crown, for the benetit of the Province, the sum of §5,000 shall and may be applied 
 to the payment of the bona fide debts of Andrew Mercer the younger, the natural son 
 of the said Andrew Mercer; and, subject thereto, the residue of the said sum of $.5,000 
 shall and may be paid to the said Andrew Mercer the younger, and that a sufficient further 
 sum shall and may be applied to complete the purcha.se of certain lots in the Township of 
 Etobieoke, containing 150 acres, in respect of which the late Andrew Mercer entered into 
 a verbal agreement, and which he intended for the .said Andrew Mercer the younger ; 
 and such lots shall be conveyed to trustees for the benefit of the said Andrew Mercer the 
 younger and his family, with all usual trusts and conditions in that behalf, to be settled 
 by the Attorney-CJeneral ; and that the further sum of $15,000 in stocks or securities 
 be transferred to the trustees on like trusts ; or that, in lieu of the said 150 acres of land, 
 at the option of the said Andrew Mercer the younger, the further sum of $10,000 in 
 stocks or securities shall and may be transferred to the trustees in manner and on the 
 trusts and conditions aforesaid. 
 
 3. Out of the residue of the said estate of the late Andrew Mercer, deceased, the 
 sum of $10,000 shall and may be applied towards the erection of a Provincial Eye and 
 Ear Infirmary in connection with the Toronto General Hospital, to be called "The Andrew 
 Mercer Eye and Ear Infirmary," and the further sum of $90,000 shall and may be applied 
 to the erection of a reformatory institution at Toronto, to be called "The Andrew Mercer 
 Ontario Reformatory for Females."