../ .
''^SSSMHI^T.
CANADIAN
CONSTITUTIONAL
History and Law.
BY
A. R. HASSARD, B.C.L.,
Of Oggooile Hall, Toronto, Barrutcr-nt-La
Author of ''Private International Law."
TORONTO :
THE CARSWELL COMPANY, LIMITED.
1900.
Entered according to Act of the Parliament of Canada, in the office of
the Minister of Agriculture, in the year one thousand nine hundred,
by Thr Carswkll Co., Limited.
PREFACE.
The present publication aims at presenting within
moderate compass the fimdamental principles of Cana-
dian Constitutional History and Law. Xo other work
combines the subjects contained in both parts of this book,
although it seems fitting, from the intimate relationship
which exists between Canadian Constitutional History
and Canadian Constitutional Law, that the two subjects
should be treated together. The condensed character of
the treatise, too, when compared with other expositions of
the subjects it comprises may perhaps commend the
volume to some of its readers. Mr. John A. Rowland, B.A.,
has expended considerable pains in assuming charge of the
preparation of Part I. of the book, and has placed that
portion of the volume in its present form.
CONTENTS.
PARTI.
CANADIAN CONSTITUTIONAL HISTORY.
INTRODUCTION. paqh.
Canada from 1492 to 1598 1
CHAPTER I.
The French Regime, 1598-1760.
Sec. 1. Canada under Trading Companies, 1598-1663 .. 5
Sec. 2. Canada a Royal French Province, 1663-1760 12
CHAPTER IT.
From the English Conquest to the Granting of Representa-
tive Government, 1760-1791.
Sec. 1. Canada under British Military Rule, 1760-1763 23
Sec. 2. Canada under the Royal Proclamation, 1763-1774 ' 25
Sec. 3. Canada under the Quebec Act, 1774-1791 31
CHAPTER III.
Canada Linder the CoNSTrruTioNAL Act, 1792-1840.
Sec. 1. The struggle for Responsible Government in the Two
Lanadas
Sec. 2. The struggle for Responsible Government "in the Mari-
time Provinces
39
49
CHAPTER IV.
Canada Under the Union Act, 1840-1867
Canada Under the Union Act, 1840-1867
53
PART ir.
CANADIAN CONSTITUTIONAL LAW.
Canadian Constitutional Law
67
ADDENDA.
Page 118.— After note 6, add:— A Provincial (N.S.) Act (R.
S. N. S. 5th ser. c. 80), providing for tlio winding np of
companies in general, where a resohition to that ett'eet was
passed by the company, or where, at the instance of a con-
tributor, the Court so ordered; and although no debts were
due by the company, is intra vires. But such an Act could
not be called into operation by a creditor. In re The
Wallace Huestis Greystone Co., Russell's Eq. Rep. 461, 3
Cart. 374 (1881).
Page 146.— After note 17, add:— But the Provincial Attor-
ney-General is the proper person to file an information
respecting a nuisance caused by interference with a rail-
way, such officer being considered as perpetually present
in Provincial Courts asserting the rights of the Crown,
and those under its protection, and seeking a remedy
for the violation of the public rights in the Province,
though such rights are created by Dominion enactment.
The Attorney-General v. The Niagara Falls International
Bridge Co., 20 Gr. 34, 1 Cart. 813 (1873).
In the former of these two cases, it was Held, that the
bridge across the Niagara River was not a public nuisance
but a matter within the competence of the Dominion Par-
liament; such body having passed an Act for the construc-
tion of the bridge in question. It was also held in the
former case that the Courts of Ontario were powerless to
grant relief extending beyond the limits of the Province.
(See note 15, on page 134, ante.)
TABLE OF CASES
A.
PAOK.
Aitcheson v. Mann, 9 P. R. 473 120
Allen V. Hanson, 18 S. C. R. 667; 4 Cart. 470 119
Angers v. City of Montreal, 24 L. C. Jurist, 259; 2 Cart. 335 . . 136
Anglo-Canadian Music Publishers v. Suckling, 17 O. R. 239 . . 120
Armstrong v. McCutchln, 2 Pugsley 381; 2 Cart. 494 117
Assignments and Preferences Act, In re, 20 A. R. 289 143
Attorney-General v. International Bridge Co., 6 A. R. 537;
2 Cart. 559 146
Attorney-General v. Mercer, 8 A. C. 767; 3 Cart. 1 69, 157
Attorney-General of British Cofumbia v. Attorney-General of
Canada, 14 A. C. 295; 4 Cart. 241 157
Attorney-General for Canada v. Attorney-General for Ontario,
Quebec and Nova Scotia (Fisheries Case), (1898) A. C. 700,
112, 114
Attorney-General of Canada v. Attorney-General of Ontario,
23 S. C. R. 458; 5 Cart. 517 80, 91
Attorney-General of Canada v. Attorney-General of Ontario,
20 O. R. 222, 19 A. R. 31, 23 S. C. R. 458 81, 128
Attorney-General for Canada v. Attorney-General for Ontario.
(Queen's Counsel Case), (1897) A. C. 247 146
Attorney-General of Canada v. Flint, 16 S. C. R. 707; 4 Cart.
288 ; 145
Attorney-General of Canada v. Toronto, 23 S. C. R. 514 130
Attorney-General of Ontario v. Attorney-General for Canada,
(1894) A. C. 189 143
Attorney-General of Ontario v. Attorney-General for Canada,
(1896) A. C. 348; 5 Cart. 295.... 103, 104, 105, 123, 125, 131, 137
Attorney-General for Quebec v. Attorney-General for
Ontario 25 S. C. R. 434, (1897) A. C. 199 157
Atcorney-General of Quebec v. Queen Ins. Co., 3 A. C. 1090; 1
Cart. 117 102
Attorney-General of Quebec v. Reed, 10 A. C. 141 ; 3 Cart. 190.
93, 102, 109, 130
B.
Bank v. Supervisors, 7 Wallace 26 115
Bank of Toronto v. Lambe, 12 A. C. 575; 4 Cart. 7. .77, 99, 101,
106, 109, IIR, 129, 130, 131
Beard v. Steele, 34 U. C. Q. B. 43; 1 Cart. 683 107
Vlll TABLE OF CASES.
FAOB.
Bell Telephone Co., lu re, 7 O. R. 605; 4 Cart. 618 120
Bennett v. Pharmaceutical Association of Quebec, 1 Dorlon,
336; 2 Cart. 250 101, 143
BllUngton v. Provincial Ins. Co., 3 S. C. R. 182 106
Blouin V. Corporation of Quebec, 7 Que. L. R. 18; 2 Cart. 368
107. 132
Bourgoin v. La Compagnie du Chemin de fer de Montreal,
Ottawa et Occidental, 5 A. C. 381; 1 Cart. 233 138
Brewers' and Maltsters' Ass'n. for Ontario v. Attorney-General
for Ontario, (1897) A. C. 231 129
Briton Medical and General Life Association (Ltd.), re, 12
O. R. 441 ; 4 Cart. 639 108
Brophy v. Attorney-General of Manitoba (1895) A. C. 202 151
C.
Campbell v. Hall, 1 Cowper 204 28
Canada Southern Ry. Co. v. Jackson, 17 S. C. R. 316; 4 Cart.
451 142, 143
Canadian Bank of Commerce v. Lambe, etc., 12 A. C. 575; 4
Cart. 7. See Bank of Toronto v. Lambe.
Central Vermont Ry. v. Town of St. Johns, 14 S. C. R. 288;
4 Cart. 32G Ill, 112, 135
Church V. Fenton, 28 U. C. C. P. 384; 1 Cart. 831 69, 121
Church V. Blake, 1 Q. L. R. 177 69
Citizens Ins. Co. v. Parsons, 7 A. C. 96; 1 Cart. 265 100,
101, 106, 107, 108, 137, 141
Clarke v. Union Fire Ins. Co., 10 P. R. 313; 3 Cart. 336 140
Clarkson v. Ontario Bank, 15 A. R. 166; 4 Cart. 499 117, 142
Clarkson v. Ryan, 17 S. C. R. 251; 4 Cart. 439 1C4
Cleveland (municipality of) v. Municipality of Melbourne and
Brompton Gore, 4 Que. Legal News 277; 2 Cart. 241 141
Colonial Bldg. and Inv. Association v. A.-G. of Quebec, 9 A
C. 157; 3 Cart. 118 139, 140
Commissioners of the Cobourg Town Trust, In re the, 22 Gr
377 139
Cooey V. Municipality of Brome, 21 L. C. Jirr. 182; 2 Cart.
385 107
Corporation of Three Rivers v. Suite, 5 Q. L. N. 330 . .101, 132, 134
Cote V. Chaveau, 7 Que. L. R. 258; 2 Cart. 311 144
Cote V. Watson, 3 Que. L. R. 157; 2 Cart. 343 107
Cotte's Case, 20 L. C. Jirrist 210; 2 Cart. 220 '■ ■ ■ 93
County Courts of British Columbia, re, 21 S. C. R. 446; 5
Cart. 490 146
Crawford v. Duffleld, 5 Man. L. R. 121 130
Credit Valley Ry. Co. v. G. W. Ry. Co., 25 Gr. 507; 1 Cart.
322 138
TABLE or CASES. IJt
PAilK.
Crorable v. Jackson, 34 IT. C. Q. B. 575; 1 Cart. 685 118
Gushing V. Dupuy. 5 A. C. 409; 1 Cart. 252 117, 110
C. P. R. Co. V. Corporation of the Parish of Notre Dame de
Bonsecours, (1899) A. C. 367 13!)
C. P. R. V. Northern Pacific & Man. Ry. Co. 5 Man. L. R. 301. 138
D.
Danaher v. Peters, 17 S. C. R. 44; 4 Cart. 125 136
Dansereau, Kx parte, 19 L. C. Jurist, 210; 2 Cart. 165 93. 95
Dear v. Western Assce. Co., 41 U. C. Q. B. 553 106
De St. Aubyn v. Laf ranee, 8 Que. L. R. 190; 2 Cart. 392
108, 127. 135
De Veber, In re, 21 N. B. Rep. 401; 2 Cart. 552 143
Dobie V. The Temporalities Board, 7 A. C. 136; 1 Cart. 351..
100, 105. 138, 142
Dow V. Blaclt, L. R. 6- P. C. 272; 1 Cart. 95 108, 129, 148, 149
Doyle V. Bell, 11 A. R. 326; 3 Cart. 297 123
Dulmage v. Douglas, 4 Man. L. R. 495 lOJ. 131
Duncan, Ex parte, 16 L. C. Jurist, 188; 2 Cart. 297 122, 144
Dumer v. Humberstone, 26 S. C. R. 266 114
Dufferin v. Morden, 19 S. C. R. 204; 5 Cart. 427 116
E.
Edgar v. Central Bank, 15 A. R. 166; 4 Cart. 499 142
Ellis, Ex parte, l Pugs. & Burb. 593; 2 Cart. 527 141, 145
European & N. A. Ry. Co. v. Thomas, 1 Pugs. 42; 2 Cart. 439. . 14ft
Evans v. Hudon, 22 L. C. Jurist, 268; 2 Cart. 346 102
Fabrigas v. Mostyn, Cowp. 161 80
Farewell, The, 7 Q. L. R. 380; 2 Cart. 378 100, 111, 145
Fielding v. Thomas, (1896) A. C. 600; 5 Cart. 398 128
Flick V. Brisbin, 26 O. R. 423 125
Fredericton v. Regina, 3 S. C. R. 505; 2 Cart. 27 69, 99, 107
Frontenac (License Commissioners of), v. County of Fron-
tenac, 14 O. R. 741; 4 Cart. 683 131, 134
Ganong v. Bayley, 1 Pugs. & Burb. 324 ; 2 Cart. 509 153
Gibbins v. Barber. 19 S. C. R. 204 ; 5 Cart. 427 116
Gibson V. Macdonald, 7 O. R. 401; 3 Cart. 319 91. 126
Gidloy V. Lord Palmerston, 3 B. & B 275 110
X TABLE OF CASES.
PAOB.
Goodhue, Re, 19 Gr. 366; 1 Cart. 560 67, 141
Griffith V. Rioux, 6 Legal News, 211; 3 Cart. 348 103
H.
Harris v. Hamilton, 44 U. C. Q. B. 641 134
Hart V. Misslsquol, 3 Que. L. R. 170; 2 Cart. 382 107, 109
Hessln v. Lloyd, 21 O. R. 538 105
Hill V. Blgge, 3 Moo. P. C. 465 80
Hodge V. Reglna, 9 A. C. 117; 3 Cart. 144.. 69, 101, 104, 127,
128, 133, 144, 147
Holnian v. Green, 6 S. C. R. 707; 2 Cai-t. 147 155
Holmes v. Temple, 8 Que. L. R. 351 ; 2 Cart. 396 110
Huson V. Tp. of South Norwich, 24 S. C. R. 145 134
I.
International Bridge Co. v. C. S. R., 28 Gr. 114; 4 Cart. 701.68, 140
J.
Johnston v. Poyntz, 2 Rus. & Geldert, 193 ; 2 Cart. 416 142
Jones V. Can. Central Ry. Co., 46 U. C. Q. B. 250; 1 Cart. 777. 139
K.
Keefe v. McLennan, 2 Russell & Chesley, 5; 2 Cart. 400 135
Kennedy v. City of Toronto, 12 O. R. 211; 4 Cart. 649 142
Kinney v. Dudnian, 2 Russell & Chesley, 19; 2 Cart. 412 118
L.
Lenoir v. Ritchie, 3 S. C. R. 575; 1 Cart. 488 146
Leprohon v. City of Ottawa, 2 A. R. 522; 1 Cart. 592 99, 110
Leveille, Ex parte, 2 Stephens' Digest, 445; 1 Cart. 349 127, 137
Local Option Act, In re, 18 A. R. 572 ; 5 Cart. 369 134
Longueuil v. Montreal, 15 S. C. R. 566; 4 Cart. 370.. 114, 129,
135, 148
Loranger v. Colonial Bldg. & Inv. Ass'n, 5 Legal News, 116;
2 Cart. 275 139
L'Unlon St. Jacques de Montreal v. Belisle, L. R. 6 P. C. 31; 1
Cart. 63 117, 126, 148
Lynch v. Canada N. W. Land Co., 19 S. C. R. 204; 5 Cart. 427. 116
M.
McAlmon v. Pine, 2 Pugsley, 44; 2 Cart. 487 117
McArthur v. Northern & Pacific Jen. Ry. Co., 17 A. R. 83; 4
Cart. 559 143
TABLK OF CASliS. XI
PAGi;.
McClanaghan v. St. Ann's Mutual Bldg. Socy., 24 L. C. Jurist,
162; 2 Cart. 237 119
McDonald v. Lake Simcoe Ice and Cold Storage Co., 26 A. R.
411 155, 156
McDlarmid v. Hughes, 16 O. R. 570; 4 Cart. 701 136
McKllligan v. Machar, 3 M. L. R. 418 146
Macdougall v. Union Navigation Co., 21 L. C. Jurist, 63; 2
Cart. 228 137, 139
McLeod V. Attorney-General of New South Wales, (1891) A.
C. 455 100, 124, 125
McMillan v. Southwest Boom Co., 1 Pugsley & Burbidge,
715; 2 Cart. 542 HI
Macbeath v. Haldimand, 1 T. R. 172 80
Maher v. Portland, 2 Cart. 486 150
Mallette v. Montreal, 24 L. C. Jurist, 263; 2 Cart. 340 136
Maritime Bank v. Receiver-General of New Brunswick,
(1892) A. C. 437; 5 Cart. 1 78, 80, 126
Merchants Bank v. Lambe, 12 A. C. 575; 4 Cart. 7. See Bank
of Tcionto V. Lambe.
Molson V. Chapleau, 6 Legal News, 222; 3 Cart. 360 92
Molson V. Lambe, 15 S. C. R. 253; 4 Cart. 334 136
Monkhouse v. G. T. R., 8 A. R. 637; 3 Cart. 289 138
Mousseau v. Bate, 27 L. C. Jurist, 153; 3 Cart. 341 120
Mowat, Attorney-General, v. Casgrain, 6 Q. L. R., Q. B. 12 . . 121
Munn v. McCannell, 2 P. E. I. R. 148 118
Murdoch v. Windsor & Annapolis Ry. Co., Russell's Eq. Rep.,
137; 3 Cart. 368 118
Musgrave v. Pulido, L. R. 5 A. C. 102 80
N.
Noel v. Corporation of the County of Richmond, 1 Dor. 333;
2 Cart. 246 108, 132
Normand v. St. Lawrence Navigation Co., 5 Que. L. R. 215;
2 Cart. 231 Ill
North British Mercantile Ins. Co. v. Lambe, 12 A. C. 575; 4
Cart. 7. See Bank of Toronto v. Lambe.
North Perth, Re; Hessin v. Lloyd, 21 O. R. 538 105, 123
O.
O'Regan v. Peters. See Danaher v. Peters, 17 S. C. R. 44; 4
Cart. 425 136
Ontario & Quebec Arbitration, In re, 4 Cart. 712 163
P.
Page v. Griffith. 17 L. C. Jurist, 302; 2 Cart. 308 144
Paige v. Griffith, 18 L. C. Jurist, 119; 2 Cart. 324 74, 147
XU TABLE OF CASES.
PA OF!
Papin, Ex parte, 15 L. C. Jurin, 314- 2 Cart. 320 147
Papin, Ex parte, 16 L. C. Jurist, 319; 2 Cart. 322 147
Peek V. Shields, 6 A. R. 639; 3 Cart. 266 117
Plcton, The, 4 S. C. R. 648; 1 Cart. 587 112
Pigeon V. Recorder's Court. 17 S. C. H. 495; 4 Cart, 442 130
Pillow, Ex parte, 27 L. C. Jurist, 216; 3 Cart. 357 133
Plummer Waggon Co. v. Wilson, 3 Man. L. R. 68 102
Pope V. Griffith, 16 L. C. Jurist, 169; 2 Cart. 291 144
Poulln V. Quebec, 9 S. C. R. 185; 3 Cart. 230 133
Powell V. Apollo Candle Co., 10 A. C. 282; 3 Cart. 432 105
Prince Edward (License Commissioners of), v. Prince Ed-
ward, 26 Gr. 452 ; 2 Cart. 678 131
Q.
Queddy River Driving Boom Co., The, v. Davidson, 10 Gr.
222; 3 Cart. 243 Ill
Queen Ins. Co. v. Parsons, 7 A. C. 96 ; I Cart. 265 137
Quirt V. Regina, 19 S. C. R. 510; 5 Cart. 456 119
R.
Regina v. Amer, 42 U. (\ Q. B. 391; 1 Cart. 722 82, ii
Regina v. Bank of Nova Scotia, 11 S. C. R. 1; 4 Cart. 391. .80,
81, 83, 91
Regina v. Bennett, 1 O. R. 445; 2 Cart. 634 145
Regina v. Boardnian, 30 U. C. Q. B. 553; 1 Cart. 676. . . ; . .121, 122
Regina v. Bittle, 21 O. R. 605 145, 147
Regina v. Bradshaw, 38 U. C. Q. B. 564 ;2 Cart. 602 122
Regina v. Brierly, 14 O. R. 525; 4 Cart. 665 124
Regina v. Burah, 3 A. C. 889; 3 Cart. 409 105
Regina v. Bush, 15 O. R. 398; 4 Cart. 690 145, 146
Regina v. Chandler, 1 Hannay, 556; 2 Cart. 421 117
Regina v. City of Fredericton, 3 S. C. R. 505; 2 Cart. 27.69, 99, 107
Regina v. College of Physicians and Surgeons of Ontario, 44
U. C. Q .B. 564; 1 Cart. 761 150
Regina v. Coote, L. R. 4 P. C. 599; 1 Cart. 57 144
Regina v. De Coste, 21 N. S. R. 216 122
Regina v. Eli, 13 A. R. 526 .' 125
Regina v. Eyre, L. R. 3 Q. B. 487 '. 80
Regina ex rel., McGuire v. Birkett, 21 O. R. 162 133
Regina v. Fisher, 2 Ex. C. R. 365 112
Regina v. Foley, Stephens' N. B. Digest, 381; 2 Cart. 653n... 144
Regina v. Frawley, 7 A. R. 246; 2 Cart. 576 133
Regina v. Halliday, 21 A. R. 42 129
Regina v. Howard, 46 U. C. Q. B. 346 133
Regina v. Horner, 2 Steph. Dig. 450; 2 Cart. 317
TABLE OF CASES. XUl
PAOF.
Regina v. Justices of King's, 2 Pugs. 535; 2 Cart. 499 108
Regina v. Lake, 43 U. C. Q. B. 515; 2 Cart. 616 122
Regina v. Lawrence. 43 U. C. Q. B. 164; 1 Cart. 742 122
Regina v. Levinger, 22 O. R. 690 145
Regina v. McFarlane, 7 S. C. R. 216 110
Regina v. McMillan, 2 Pugs. 110; 2 Oart. 489 136
Regina v. Mohr, 7 Que. L. R. 183; 2 Cart. 257 139
Regina v. O'Rourke, 1 O. R. 464; 2 Cart. 644 122, 123
Regina v. Pattee, 5 P. R. 292; 3 Cart. 346n 120
Regina v. Plante, 7 Man. L .R. 537 123
Regina v. Plowman, 25 O. R. 656 100, 124
Regina v. Priftie, 42 U. C. Q. B. 612; 2 Cart. 616 122
Regina v. Reno & Anderson, 4 P. R. 281; 1 Cart. 810 162
Regina v. Richardson, 8 0. R. 651 145
Regina v. Robertson, 6 S. C. R. 52; 2 Cart. 65 99, 112, 113, 127
Regina v. Roddy, 41 U. C. Q. B. 291; 1 Cart. 709 125, 147
Regina v Shaw, 7 Man. L. R. 518 123
Regina v. Taylor, 36 U. C. Q. B. 218 129-130
Regina v. Toland, 22 O. R. 505 125
Regina v. Wason, 17 A. R. 221; 4 Cart. 578 122, 123, 125. 147
Renaud, Ex parte, 1 Pugs. 273; 2 Cart. 445 151
Richardson v. Ransom, 10 O. R. 387; 4 Cart. 630.. 127, 128, 145. 146
Riel V. Regina, 10 A. C. 675; 4 Cart. 1 106, 14B
Ross V. Torrance, 2 Legal N. 186; 2 Cart. 352 116
Royal Can. Ins. Co. v. Montreal Warehousing Co., 3 Legal N.,
.15.^.; 2 Cart. 361 116, 148
Russell V. Regina, 7 A. C. 829; 2 Cart. 12 100, 101, 103. 107
S.
St. Catharines Milling & Lumber Co. v. Regina. 14 A. C. 46; 4
Cart. 107 31, 94, 121 157
Separate School Trustees of Belleville v. Grainger, 25 Gr. 570;
1 Cart. 816 150
Severn v. Regina, 2 S. C. R. 70; 1 Cart. 414 129
Shoolbred v. Clarke, 17 S. C. R. 265; 4 Cart. 459 119
Slavin v. Orillia, 36 U. C. Q. B. 159; 1 Cart. 688 132
Smiles v. Bc'forc^, 1 A. R. .436; 1 Cart. 576 120
Smith, Ex parte, v. Hempstead, 16 L. C. Jurist, 140; 2 Cart.
330 154
Smith v. Merchants Bank, 28 Gr. 629; 1 Cart. 828 107, 115
South Dufferin v. Morden, 19 S. C. R. 204 116
Sproule, In re, 12 S. C. R. 140 14b
Squier, Re, 46 U. C. Q. B. 474; 1 Cart. 789 152, 153
Suite v. Three Rivers, 11 S. C. R. 25; 4 Cartl 305 136
XIV TABLE OF CASES.
T.
TAGK.
Tarte v. Beiquc, 6 Mont. L. R. 289 144
Tennant v. Union Bank, (1894) A. 0. 31 101, 115
Theberge v. Landry, 2 A. C. »02, 2 Cart. 1 97
Toronto Harbour Commissipners, Re, 28 Gr. 195; 1 Cart. 825.. 139
U.
Union Bank v. Neville, 21 O. R. 152 143
V.
Valln V. Langlols, 5 A. C. 115; 1 Cart. 158 ... .76, 100, 102, 141, 145
W.
Ward V. Reed, 22 N. B. R. 279; 3 Cart. 405 123
Weiler v. Richards. 26 C. L. J., N. S. 338 129
Western Counties Ry. Co. v. Windsor & Annapolis Ry. Co.,
7 A. C. 178; 1 Cart. 397 155
Wetherell & Jones, Re, 4 O. R. 713; 3 Cart. 315 103
Whittier v. Diblee, 2 Pugs. 243; 2 Cart. 492 144
Willett V. De Grosliois, 17 L. C. Jurist, 293; 2 Cart. 332 88
Wilson V. McGulre, 2 O. R. 118; 2 Cart. 665 153
Windsor v. Commercial Bank of Windsor, 3 Rus. & Gel. 420;
3 Cart. 377 115, 118, 130
Windsor v. Annapolis Ry. Co., Re, 4 Rus. 312; 3 Cart. 387 143
Winnipeg v. Barrett, (1892) A. C. 445; 5 Cart. 32 151
Winnipeg v. Logan, (1892) Ar C. 445; 5 Cart. 32 151
Worms, Ex parte, 22 L. C. Jur. 109; 2 Cart. 315 161
PART 1
CANADIAN CONSTITUTIONAL HISTORY.
PART 1.
CONSTITUTIONAL HISTORY.
INTRODUCTION.
CANADA FROM 1492 TO 1598.
The history of Canada may be said to bcfjin in tlie
year 1492, when, under the patronage of Ferdinand of
Aragon and Isabella of Castile, Cliristopher Columbus
sailed from the port of Palos, landed on an island of the
Bahamas, and gave to Spain an empire in the western
world. The fame of his discovery spread rapidly through-
out the nations of Europe, and French and British were
soon filled with the desire to share in the glory and gain
which Spain was reaping through Columbus. In 1497,
John Cabot, sailing under charter from Henry VII,, reach-
ed the coast of Labrador; and in the folloAving year his son,
Sebastian, passed down the coast from Labrador to Florida,
and claimed it in the name of England. France was the
nation which ranked next in projects of discovery. In 1 500,
Denis of Ilonfleur visited the Gulf of St. Lawrence. In
1 524, John Verrazzano sailed northward from the Carolina
shore to the Gulf of St. Lawrence, and declared the region
annexed to the French crown. And in 1534-5, Jacques
Cartier entered the Gulf of St. LaAvrence, and sailed up the
2 CONSTITUTIONAL HISTORY.
river of the same name to the site where now stands the
City of Montreah The ohl worhl powers were dividinp^
the new world hctweon them, and, owinfi^ partly to the
superior ability and energy of her navigators, and partly to
the fact that the attention of England was occupied at
Jiome, France was soon able to make good her hold on the
northern portion of the continent.
It was from France that the first attempt at governing
and coloni 'ing the countrv came. In the year 1541 the
French kii>a:, Francis I., appointed a nobleman of Picavdy,
the Sif iir de Roberval, Governor of Canada and the Bur-
rounding regions. De Roberval reached Canada in the
following year, and established a colony at Charlesbourg
Koyal. Winter came upon the unfortunate colonists an), the i)eriod during which Canada was governed as a
Koyal French Province, 1003-1700.
II. The period from the English conquest in 1700 to
the granting of representative institutions in 1791, includ-
ing—
(a) The period of British :Military Kule, 1700-1703,
(6) The period covered by The Iloyal rroclanmtion,
1703-1774,
(c) The iK'riod covered by The (Quebec Act, 1774-
1701.
III. The period beginninu' with the Constitutional
Act of 17!)1, and ending with the granting of responsible
government by the Union Act of 1840.
IV. The period from the Union Act to the passing of
the Act of British Xorth America, 1840-1807.
In 1807, the British North America was passed,
and the Ilistor}^ of Canada subsequent to that time, con-
sidered from a constitutional point of view, has consisted
in accjuiring a proper comprehension of that enactment
and in bringing other portions of Canada under its oper-
ation, rather than ])assing from one constitution and sys-
tem of government to another.
Until 1867, the various systems of government in
force from time to time in Canada strike one very forc-
ibly as consisting of a series of constitutional experi-
ments. The great difficulty which constitutional pion-
eers ex])ea'ienced, when we look back across the receding
centuries, seems to us to have been that too limited an
observation was taken of the circumstances of the people
by their rulers. To please one section or class meant to
incense another. Consequently, frequently the head
that wore the crown lay very uneasily. In 1807, the
" Fathers of the Confederation," as they are called, —
4 CONSTITUTIONAL HI8T0RY.
indicated, l)y the part they hore in confederating Can-
ada, that they had aurinonnlied the diflficnlties of their
ancestors. Bevond the Province, thev saw the Dom-
inion; heyond the sect or party, they saw the nation;
beyond tlie local interest they saw the subject of federal
concern ; and amidst discord and contention they saw
tranquility and harmony. The confederation embraces
not one Province, or party, or sect or race; it surrounds
and includes all, and, as a statesman observed, " the
foundations of confederation are laid deep in the hearts
of Canadians, and its boundaries extend as wide as the
ambitions of its people."
The British North America Act will be dealt with
separately in the second part of this work.
CHAPTER r.
THE FRENCH REGIME, 1598-1760.
1. Canada under Trading CoTmpaniea,- 1')98-1663.
The Constitutional History of Canada, as has boon
stated, begins with the patent granted in 1598 by Henry
IV. to the Marquis de la Roche. De la Roche was created
royal Lieutenant-Governor in Canada, Newfoundland,
Labrador, Acadia, and the adjacent lands. His powers
were most extensive. He was given authority, — 1. To make
" laws, statutes and political ordinances," and to onfoire
their observance when made. 2. To grant the lands he
might acquire to nobles and others, to be held of the King
in fiefs and seigniories, on condition that the grantees
should serve in defence of the country ; and to make simihu*
grants to others of lower estate on such annual payments
as he deemed proper. 3. To accept assistance from such
merchants as cared to off(^r it, and none were allowed to
traffic in the country without his express consent. In
general, he was to have the same power and authority na
King Francis had given to de Roberval. It Avas further
provided that the profits of the expedition should be divid-
ed into three parts; one-third for de la Roche, one-third for
his associates, and one-third for the goveniment of the
country.
The importance of this commission rests in the fact
that it brings out clearly the attitude of the French
Government towards Canada. The two chief objects
aimed at were, the monopoly of trade, and the establish-
ment in Canada of a colony based on the same social
6 CONSTITUTIONAL HISTOUY.
arraiigcuicnts as existed in France. To secure tlie firsf,
the Ciovernor was given power to say who shonhl tra
to Canada. De Chastes died a year later, and was
succeeded by de Monts, who set about the work of
establishing settlements with the support of a still larger
company of merchants. The new company continued in
charge until 1612. In 1607 the trading monopoly was
suspended, but only for a time; it was re-granted in 1608.
AYith this interval, the system already described seems to
have been followed until 1627.
From the point of view of Canada, the policy was
anything but a success. The trading companies did little
for colonization. Their interests lay rather in the opposite
THE FRENCH UEdlME. 7
er of years, and under a
succession of (lovernors.
Cham])lain's position resemi)led very much that of a
comnumder of a f>arrison. He hore the title of Com-
mandant. Not the least important of his functions was to
protect the tradinji-stations, and secure the nu'rchants in
their monopoly, lie was j>iven power to appoint officers
for the administration of justice and maintenance of
police; to make peace or war with neighbourina' tribes; to
pn uote peaceable trade; to seize any whom he should find
trafiicking without leave, and send them to France for trial.
He was instructed to extend tlie knowledge of the King's
name and his authority, and " to lead the inhabitants to the
light of the Catholic faith.'' In his efforts at exploration
and settlement, he was seriously thwarted by two things:
(1) the constant change of viceroys, which called him to
Franco froui time to time; and (2), the poor support which
he received, and often the active opposition which he en-
countered, at the hands of the merchant companies. In
1621, the monopoly of trade was taken from the Associated
8 CONSTITUJ'IONAL HISTORY.
]\lercliaiits of St. Malo and liouen, and fi;iven to the do
Caens. These only made matters worse, and six years later
things were altogether changed.
In 1624, Kichelieu had been called to the Council of
the French King, and had soon made himself supreme.
His keen eyes were turned on Canada. He saw the im-
portance of the country, the wealth of her fisheries and her
commerce. He perceived the difficulties with which
Champlain was wrestling, and that, as long as expeditions-
to Canada were dictated solely by individual profit, little
good could be expected from them. He therefore resolved
to establish a new system.
In the early colonial efforts of England and Holland
one of two plans was followed. 1. A grant was made,
conferring large political powers on some individual, who
was left to an'f.nge the government and trade of his new
possession, — e. g,, Pennsylvania, Maryland, etc. — or 2.
A charter was granted to a company which was given com-
mercial monopoly and political power, — e. g., London Com-
pany for Virginia, the English East India Co., etc. The
latter was the favorite method, and the one with which
Richelieu was most familiar. He decided to adopt it in
Canada. Accordingly, in 1627, he abolished the office of
viceroy, and the monopoly of the de Caens, and created
the " Company of Xew France," or the "' Company of the
Hundred Associates."
The charter of Richelieu's Company began by de-
claring as its two main objects, — (1) the conversion of the
natives, and (2), the creation of a commerce beneficial lo
France. It conferred upon the Company " full ownership^
lordship and jurisdiction " in Xew France, with a per-
petual monopoly of the fur-trade, and a fifteen years'"
monopoly of all otlier trade but that of the whale and cod-
fisheries. The Company was required to send out 30O
settlers within one year, 1,500 within ten years, and 6,000
within fifteen years. All settlers were to be Roman
THE FRENCH REGIME. 9
Catholics, and three Jesuit priests were to be maintained in
each settlement. The Government retained more control
than formerly in each settlement. The Company could
select their own Governor, but he had to be approved by the
Government. His term of office was at first indefinite.
After 1648, it was restricted to three years. The Company
had power to grant lands and titles, but not to create
baronies or hiy,hcr degrees of nobility without the consent
of the Crown.
In 1629, Quebec fell into the hands of the English,
and was retained by them for three years. It was not until
1632, therefore, that the Company began operations.
They retained their powers until 1663. The first
Governor under the new regime was Champlain, who
continued in office until his death on Christmas Day, 1635.
He was succeeded by a number of Governors or Lieu-
tenants-General, appointed by the King on the nomination
of the Company. ,
The new policy was found to be but little superior to
the old. During the first few years after the restoration
of the country to France there was some degree of
activity, but from 1645 to 1660, the colony remained
stationary. The Company proved to be a purely commer-
eial combination. The Governors with power of life and
death, were but its representatives, and could follow no
line of conduct except that prescribed to them. The im-
portance of the period from a constitutional i)oint of view
consists in the fact that it marks (1), the beginning of the
Ecclesiastical System, and (2), the first establishment of a
Consultative Council.
The Consultative Council was a sort of advisory body
which sprang up around the Governor. It first appear*
under the governorship of M. de Montmagny. Originally
it consisted of the (Jovernor, the Bishop (or the Superior
of the Jesuits), and the local Governor of Montreal. In
1648 on the appointment of M. d'Ailleboust as Governcu-,
10 CONSTITUTIONAL HISTOllY.
it was re-constituted to consist of the Governor, the Chief
Ecclesiastic, the local (Governor of Montreal, and the
Syndics, (or municipal chiefs), of Montreal, Three Kivers
and Quehcc. It possessed powers, legislative, judicial and
executive, in all aifairs of the colonv with appeal to the
King- alone, lienceforth its inlluence and authority
graduallv increased while that of the Coni])any gradually
decreased, and from ahout 1050 the Council was the real
governing hody in the country. It was the first political
hcuv in Canada.
The charter of Ilichelieu's Company had provided
that none but Koman Catholic settlers should be brought
to Canada, and that three priests should be maintained iu
each settlement. The reasons for the exclusion of the
Huguenots were two. 1. The principle of toleration
between men of ditferent religious beliefs had not yet been
learned, and the (Jovernmcnt desired to avoid all possi-
bility of religious strife in Canada. 2. The reipeated
rebellions of the Huguenots in recent years had brought
them into strong disfavour, and rendered their very name
an object of suspicion. The result of the provision was to
create in C^anachi an Established Church.
The evangelization of Canada had already begun. In
1615, four priests of the order of liecoUets had come to
Quebec. The year 1625 witnessed what was practically
the first appearance of the Jesuits in Canada. Almost
from the moment of their arrival they became the central
figures in the country. Their superior influence with the
Crown enabled them to bring about the recall of the
Eecollets, their rivals, and from the date of the restora-
tion of Canada to the French, the missions were entirely in
their hands. The death of Champlain established them
more firndy in their position. The Clovernor who acted
from the death of Champlain till the arrival of Mont-
niagny, received his appointment at the hands of the Jesuit
Father. The document making the appointment had been
THE FUENCil REGIME. 1 1
placed in liis hands, with instni tions to act upon it in case
of emergency ; and it was left to himself to say -what was a
case of emergency. Henceforth the inliueuce of the
Jesuits was felt, not only in things spiritual, but in things
tem])oral as well. Montmagnv was an ardent jupporter of
the Jesuits, and the head of the order was made a member
of his council. In 1058, Laval was made Vicar- Apostolic
of A"ew France. Firndy convinced that the rulers of this
Avorld ought to be subject to the guidance and control of
the Pope, none was better suited than he to assert the
authority of the Church in things political. His extra-
vagant claims and his interference in matters of state were
bitterly resented by Argenson and Avaugour, and were
the cause of many bitter quarrels between himself aud
those (jiovernors, — quarrels which were not without in-
fluence in bringing about the change of government
which took ])lace in lOOo.
The only rivals of the Jesuits were the Sulpician
lathers at Montreal. In 104^0, the Company of New
France had ceded " all right of ownership, lordship aud
justice " over the Island of Montreal to a company entitled
" The (lentlenian associated for the conversion of Savages
at Montreal," and henceforth known as " The Society of
Xotre Dame de Montreal." In the course of three or four
years, they had obtained the right of naming their own
CJovernor, and of administering justice, subject however to
an appeal from the Montreal Judges to the CJovernor of
(Quebec. The original plan of the Company had been to
establish a hospital, college and seminary. The idea of the
college and seminary was abandoned, but the hospital was
duly erected. The colony suffered much from the attacks
of the Iroquois, and as it did not Hourish under its ))arent
Company, the Company, in 1(558, transferred all its rights
to the Seminary of St. Sulpicius. The Seminary became a
great feudal lord, and Montreal not infrequently the
centre of opposition to the Jesuits of Quebec.
12 CONSTITUTIONAL HISTORY.
In 1603 the charter of the Company of New France
^va8 revoked, and Canada was brought under the iinmo-
diato control of the French Kinp;. The career of the Com-
pany for past years showed their incapacity to direct the
fortunes of a colony. In 1663, the total number of French
in Canada did not exceed 2,500. The country was entirely
abandoned to the attacks of the Indians. Champlain had
allowed himself and the French to become involved in the
M^ar between the Hurons and the Iroquois, as the allits of
the former. The Iroquois had proved the stronger. The
Hurons had been ahnost annihilated, and the French
settlement Avas in imminent danger of destruction. The
presence of a military force was indispensable if the
country was still to be inhabited by the Avhite man. The
Company did not feel equal to the necessities of the occa-
sion. The membership had decreased from one hundred to
forty-five. Those who remained felt that they had little to
gain; that they possessed a continuance of responsibilities
with little hope of individual benefit. It was decided to
send Pierre Boucher to France to bring the desperate con-
dition of the colony to the notice of the King, and to ask
his assistance. On Febiiiary the 24:th, 1663, the Company
met and resolved unanimously to abandon their charter
and to restore to the King the property and lordship of
Xew France. In the meantime the King had received the
report of Boucher. He had also heard from Laval, who was
then in France, an account of the bitter quarrels between
himself and Avangour. Accordinglv, he determined to
accept the Company's transfer, recalled Avangour, and took
(/'anada into his own immediate charge.
2. Canada a Royal French Province, 166i-17G0.
Canada was now brought under the direct rule of the
King, and the government was formed in its chief features,
after the government of a French province. The adminis-
tration of affairs was entrusted to a Governor, an
THE FRENCH IIEGIME. 18
Intendant, and a Committee known at first as the Supreme,
and later as the Superior, Council.
The (iiovernor was usually a military noble of title, and
sometimes of hi^li rank. He had official precedence, and
was rep;ar(led as the special reprerentative of the King:'s
pei-son. Unlike the (Jovernor of a French province, he
was given substantial political nower. The circumstances
of the country demanded the presence of a military force.
The (iiovernor commanded the troops, and had complete
charge of all military mattei-s. He conducted relations
with foreign colonies and Indian tribes, and liad the power
of making- war and peace; and from his decision there was
no appeal save to the King, and the King was three
thousand miles distant.
The office of Intendant had graduallv grown up in
France during the sixteenth century. Originally the
Intendants were mere temporary commissioners attached to
the armies. Then they were sent to certain provinces to
inquire into the collection of revenue and the administra-
tion of justice. From the time of Richelieu they became
permanent officials in every province for the purpose of
controlling the Governor, and they had gradually concen-
trated in themselves all the powers that had originally
belonged to that official. In Canada the Intendant was
virtually a spy upon the Governor. He was required to
report to the King on all that took place in the colony. He
was president of the Council, and so held the right to a
casting A'ote. He controlled all expenditure of public
monev, aiul was clothed in his own person with inde-
pendent legislative as well as ju licial power. He was
given authority, whenever he thought necessary, to issue
ordinances having the force of law, and dealing with any
subject; and " to order evervthing as he should see just and
proper." He had power, if he saw fit, to call any cause be-
fore himself for judgment; and he judged exclusively in all
14 CONSTITUTIONAL HISTORY.
cases conoeriiiiifi,' the King, and in those involving,- the rela-
tions of seignior and vassal. He appointed snbordinate
judges, from whom there was an appeal to himself, and
from his decision there Avas no appeal save to the King.
Tliese enormous powers were sometimes retrenched by con-
tradictory instructio) s from the King. Indeed the Intend-
ant was but the King's colonial man-of-all-work, and his
powers were liable to be increased or diminished at his
royal master's will.
The relations between the Governor and Intendant
were not always of the most harmonious. It was not the
intention of the French Government that they should be.
The Intendant was intended to act as a sort of check upon
the Governor, and so prevent the formation of anything
like an independent principality in Canada. All that was
necessary Avas to prevent their hostilities becoming so
violent as to derange the machinery of government. The
records of the time are filled with accounts of the. quarrels
that took place between them, — quaiTels which redounded
to the benefit of the Council. With each of these officials
seeking for himself supporters among the councillors, the
balance of power fell into the hands of the Council.
The Conncil, as at firjt constituted, consisted of the
Governor, the Chief Ecclesiastic, and five conncillors. I'lio
Intendant was soon added to form the ruling triumvirate.
In 1675, the number of Councillors was increased to seven,
and in 1703, to twelve. As a rule they Avere merchants and
seigniors. Their selection originally rested Avith the
GoA^ernor and the Bishop. The violent quarrels Avhich
soon broke out betAveen the Bishop and the various
Governors, and having their origin in the extravagant pre-
tensions of Laval, not only made the continuance of this
system of election im})ossible, but also seriously interfered
with the transaction of public business, by dividing the
(^ouncil into tAVo hostile camps. In case of a vacancy, each
sought to have his OAvn supporter chosen. Accordingly,
THE FRENCH IIEGIME. 15
in 1674, to obviate this difficulty of election, and to secure
independence on the part of the councillors, the Kinp; took
their appointment into his own hands. Even the name of
the Council was changed in the course of time from that
of " Sovereign," or '' Supreme," to that of " Superior "
Council.
The powers of the Council were both legislative and
judicial.
1. Tt issued decrees for the civil, commercial and
financial government of the colony.
2. It aave judgment in civil and criminal cases
according to the royal ordinances and the Coutume de
Paris. Its jurisdiction was both original and appellate. It
had its own Attorney-General, who heard complaints and
brought them before the tribunal if he thought necessary;
and it acted as the highest Court of Appeal for the
Province.
3. It exercised the function of registration, borrowed
from the Parliament of Paris. In France, no roval edict
had the force of law till entered upon the books of the Pai--
liament of Paris. In Canada all edicts were required to be
entered on the register of the Supreme Council at Quebec.
For purposes of administration of justice, Canada was
divided into the three districts of Quebec, Three Rivers,
and ^Montreal. To each of the^e districts was assigned a
Judge appointed by the King, and to each of the Judges
were added a Clerk and an Attorney-General under the
supervision and control of the Attorney-General of the
Superior Court, to which tribunal an api)eal hiv from all
inferior jurisdictions. The judicial i)owers of these royal
fFudges, and of the Supreme Council were further supple-
mented by those of the Intendant already described, and
those of the Seigniors to be r(>ferrcd to later. Added to all
these tribunals was the Bishop's Court at Quebec, to trv
causes held to be Avithin the province of the Church.
16 CONSTIIUTIONAL H18T0HY.
Durinp the first few years of the new system of
government, the work of settling Canada was carried on
with activity. In 1GG3, the French popnlation in the
country was only 2,500; in 1671) it liad reached 0,400.
The cost of bringing out these colonists was borne by the
Frencli (lovcrnment. Even after they had landed, large
sums of money were spent to enable them to many and
brine,- up families. To relieve itself of this latter expense,
and, at the same time, to secure the cultivation of the land
by those it had brouyht out, tiie (lovernment adopted the
plan of confeiTing large grants of land on men of noble
rank, to be held by them in fiefs and seigniories, and on
the express condition that, if the land was not cultivated, it
should be forfeited ; and these, in turn, were empowered to
sub-let to others of lower estate, on similar conditions.
The feudalism of Canada differed in many respects from
that of France and Europe. (1) The requirement of mili-
tary service by lord from vassal was, in Canada, unknown.
(2) The relations between seignior and vassal were subject
to constant intervention of the King. The " censitaire "
was the especial ward of the Royal Council, which fre-
quently interfered to modify the conditions of his tenure.
(3) The Seignior was denied all voice in the direction of
government, and of the pri\'ileges and prescriptions which
still clung to the ancient ruling jlass in France, few were
allowed to cross the Atlantic. The colony was far removed
from France, and care had to be taken to prevent anything
which might result in changes and revolutions, and, it
might be, in the springing up of an mdependent princi-
pality.
The system was first established in Canada by Riche-
lieu, and the first seigniory dates from 1634. Modified as
it was, Canadian feudalism was made to serve double pur-
pose: (1) to produce a faint and hannless reflection of
French aristocracy; and (2) to furnish a simple and prac-
tical agency for distributing the land among the settlers,
and securing its cultivation by them.
THK FUKNCH llEOIMK. 17
The Seignior was usually the immediate vassal of the
Crown. He received his land gratuitously, and held it
by the tenure of faith and homage. Ono condition was
imposed upon him,— that of clearing his land within a
limited time on pain of forfeiture. So large were the
grants, tl>at he could not clear it all himself, lie was
forced, therefore, to parcel it out to those who could. lie
could not sell, but must grant it upon condition of the
payment of an annual rent. This brings us to the " cen-
sitairc."
The tenure " en censive," by which the censitaire held,
consisted in a variety of obligations: (1) lie had to make
annual payments, known as " cens et rente," — the amount
of which fluctuated, and was fixed by agreement. (2) In
case he sold his land, he had to pay one-twelfth of the pur-
chase money to the Seignior. These payments were known
as " lods et ventes," or mutation fines. (3) There were
numerous other obligations, imposed partly by custom,
partly by agreement, such as grinding his corn at the
Seignior's mill, baking his bread in the Seignior's oven, etc.,
— conditions which were not enforced with much regularity
but might be used for purposes of extortion.
The Seignior had also limited judicial powers. He
exercised three kinds of justice: "high," dealing with
crimes punishable by death (except murder and treason);
" middle," referring to debts and misdemeanours punish-
able by fine; and "low," which concerned itself with
seigniorial dues and profits. As a matter of practice, the
Seignior's judicial powers were restricted to cases falling
under the last of the three classes. In all matters of im-
portance there was an appeal from his decision to the
Royal Courts, and from them to the Superior Council.
But the Seignior's Courts often proved useful in securing
speedy redress in cases of minor importance, and in saving
time, trouble, and expense to the disputants.
H.C.H.
18 CONSTITUTIONAL HISIOUY.
The l)cginninf»s <»t" tl\o ccclosiastical system in Canada
have already been refen-ed to. Laval, who was made
Vicar-Apostolic in Kew France in 1658, and Bishop of
(Quebec in 1<»T4, was really the father of the Canadian
Church. He introduced the i)arochial system of ohl
France into Canada, but with this modification. In
France the parish-priest was a fixture in his parish and
could ouly be removed for f>nive reasons. Laval demand-
ed that th(! Canadian i)ri(>st should be removable at the will
of the Bishop — a demand which was re|)u,cnant to Louis
XIV., and was bitterly opposed by Colbei-t, but which,
nevertheless, Avas f>ranted. To provide the funds necessary
for his ])urposes, Laval introduced the payment of tithes, —
at first, a thirteenth, aud subsequently a twenty-sixth, of
jiniins prodnce'd.
Tlu^ education of the country wa-^ entiielv in the
hands of the ecclesiastics. Not only did Laval establish at
Quebec a pvater Seininarv. where younjc: nuMi were train-
ed, for the priesthood, and a lesser Seminarv where Ijovs
were trained in Latin and Khetoric, in the hope that one
day they would take orders; he also instituted a sort of
industrial school for the trainiui, of a humbler class of
pupils, in readiufi', AVi'lting, and the various mechanical art-.
The funds for these, were derived from Grants of land
which he had accpiired in the best parts of Canada. The
purpose of the schools under the old re,e;ime was primarily
relipious, but the scrvic<'s which the church rendered to the
state must not he under-estimated. More than anythinjn^
else the Church contributed to the creation of an orderly
and thrifty population in Canada. The money which she
enacted was honestly and economically spent. Her income
from the tithes was utterly inadequate to the maintenance
of the clerp;y, and dunng the whole of the period a large
part of the cost of their maintenance was contributed by
the heme gcverrment.
THK KHENCII UKUIMK. 19
Such was the system iindcr wliicli Cima.In coiitiimed
to be fiovorm-d until its coiuiiu-st bv tlic Kiif;li8b in 1760.
It WU8 chnniclcrized by ))at('nialisiii, abi-oliitism and ocn-
tralizaticn. "The Kinp ivjianls his Canadian subjects
alnioct as his own chiUh'en,"' wrote Colbei'f to Tahjn.
Trade and comnicnM^ were continually vexed by tlie hand
of authority. T!ie Tnteiuhmt visited from liouse to house,
and domestic afVairs of tlie most trivial iiepin'ttmce Wire
dealt with in his ordinances. The s]>irit of absolutism v,-as
everywhere apparent. It was held to be of great conse-
quence that " the people should not be left at liberty to
speak their minds." Public meetings were zealously
restricted. Evc'U a meeting of parishioners called to dis-
cuss the cost of a church recpiired a s])eeial license. The
whole system of administration centred in the King, who,
in '* the fullness of his ]io\ver, and certain knowledge," was
supposed to direct the whol(> machinery of govcrnunnt.
Remend)er that for his information the King was de-
pendent on the letters of the Governors and Tntendants;
that, when his time was occupied by more ahsoi'bing in-
terests, he was thrown back upon abstracts of these letters,
made by his Ministers, who might color as they saw fit;
that ships from Canada did not arrive in France more than
once or twice a year, and communication was of the rarest;
and it is not difllcult to see why Canada should be caUed
the country of abuses.
With the passing of Canada to the English all tln^
was changed, the Frerch Ciovernment left few or no poli-
tical traditions, but its influence still continued to be felt in
two ways. (1) More than any other agency the Church of
Rome had shaped the character and destinies of the infant
colony ; and, although the civil administration was
shattered by the conquest the Chiirch remained untouched.
(2) The old laws and customs regarding property, con-
tinued to be observed, and were the cause of much dis-
cussion in succeeding years.
20 coNSTmrnoNAL iiistouy.
8. The Jiq/ivniixj of liepri'Hcntahve Govemmemi in Nova
Scotia.
Of nil tlio Provinces in the present Dominion of
Canada, iS'ova Scotia was the first to obtain representative
povcrnnient. Acadia, or Xova Scotia, was finally ceded to
England by France in 1Y13, by the Treaty of Utrecht.
The Frcnch-spcnlsinj^ and Catholic population of the
Province was then about 3,000, and they were grouped in
the four settlements o(f Aimapolis, les Mines, Cobequid
and Chigncctn. ^lost of them wished to emigrate to Cape
Breton, which wa^ still a French possession. Their
removal meant the loss of the Indian trade, and the Knglish
refused them peraiission to depart. To make their en-
forced residence as little of a hardship as possible, and to
win their confidence, they were left untaxed. They were
also granted a sort of representative local government.
They were allowed to elect annually twenty-four deputies
to act on their behalf, and to publish the orders of the
Goveraor. These deputies had authority to act as arbitra-
tors between the inhabitants, and from their decision an
appeal lay to the Governor and Council. The new
subi'ects were likewise given full religious liberty, and the
existing ecclesiastical arrangements in the Province were
continued. In spite of these concessions, the Acadians
refused to take the oath of allegiance, or only gave such a
qualified promise of allegiance that the British Govern-
ment refused to accept it. In this conduct they were sup-
ported by their priests, many of whom were but the secret
agents of France. They also objected to the enforcement
of English law, and referred their disputes to their priests
for settlement, rather than bring them before the English
Governor or Council. Matters became serious, and in
1755, England, fearing an uprising in favor of France in
the colony, resolved to expel the Acadians from the
country.
THK FllENOH KKOIME. 21
In 1T14, tho .v<'ni* "^ter tho cession of Acndia, a
Governor was appointed, with a commission conferrin}];
upon him the functions of Commander-in-CMiief of tiie
forces in the Ishmd. In 171 {>, tiie (lovernor was instructed
to " choose a Council for the managemeut of the civil
affairs of tho I'rovince, from among the principal English
inhabitants.
In 1720, a Council of twelve was nominated. Owing
to the small nmnber of English inhabitants in the Province,
all save one of these members were civil or military
officers. The fuuv^tions of the Council were chieHy admin-
istrative and judicial. It heard such appeals from the
native deputies as the people cared to bring. The English
po|)ulation increased very slowly. In 1748, the English
Government advertised for settlers, promising them grants
of land, and holding out other inducements. About IJ,800
settlers with their families accepted the offer. Captain
Cornwallis, the new Governor, had charge of the expedi-
tion. His connnission gave him power to nominate a
Council, and other necessary officers. With the advice of
the Council, he was to sunnnon General Assemblies of the
freeholders and planters, according to the usage observed
in the other colonies in America; and with the advice and
consent of such Council and Assembly, he could make laws,
ordinances and statutes, not repugnant, but as near as may
be agTeeable to those of Great Britain. All such laws,
etc., M'cre to be transmitted vvithin three months to the
King for disallowance or approval. The Governor was
given a negative voice in the making of all laws, statutes
and ordinances. He was also authorized, with the advicie
and consent of the Coimcil. to establish Courts of Justice;
and he was made militai-y Commander-in-Chief.
During the three or four years following the expedi-
tion of Captain Cornwallis, a large number of Gorman and
and Swiss settlers Avere brought over to the country. "With
so heterogeneous and troublesome a body of settlerc, the
22 CONSTITUTIONAL HISTOUY.
(iovevnor licsitatt-d to call an Assembly. The question was
raised in J 755, whether the Governor and Council by
themselves had any loi>i.shitive authoi'ity. Attorney-
General Murrav (afterwards Lord llansfield), p;ave it as
his opinion that "" the Governor and Council alone were
not authorized to make laws till there should be an
Assembly." The Governor was ordered to call an
Assembly, lie replied that it was impossible! to do so un-
der existing; circumstances. The Board of Trade refused
to accept any excuse. In 1757, the Council formulated a
plan for the election of an Assembly of twenty-two mem-
bers. An election was held, and the fii-st Assembly of
Nova Scotia met at Halifax on the 2nd of October, 175S.
CHAPTER 11.
FROM THE ENGLISH CONQUEST TO THE GRANT-
ING OF REPRESENTATIVE GOVERNMENT.
(1760-1791.)
1. Canada under British Military Rule, 1760-176S.
Although Canada was not formally ceded to Great
Britain till the sip;ning of the Treaty of Paris in 17C3, the
government of the country by England really began
about three years before that date. The capitulation of
Quebec took place on the 18th of September, 1759; that
of Montreal followed on the 8th of September, 1760. Tn
the articles of capitulation two points are to be noted: — (1)
The inh'-ibitants were secured in the peaceable possession of
the houses, goods, effects and privileges. (2) The free
exercise of the Roman Catholic religion was granted; and
all the comnuuiities, and all the priests, were guaranteed
the possession of their goods, constitutions and privileges.
A similar request with regard to the Jesuits, Recollets, and
Sulpicians, was refused until the pleasure of the King
should be known. A similar reservation was made with
respect to the parochial clergy's tithes.
In the meantime, and until the possession of Canada
should be settled, some form of government had to be
established, ('cneral Amherst lost no time in undertaking
the task. Canada was divided into the three districts of
Quebec, Montreal, and Three Rivers, corresponding to the
old divisions \uider the French regime. General Gage was
24 CONSTITUTIONAL HISTORY.
appointed Governor of Montreal ; Colonel Burton, of
Three Rivers; and General Murray of Quebec. Military
Councils were established to administer law. Civil differ-
ences of the inhabitants were to be settled, according to
their own laws, by cantains of ndlitia, who were to
retain authority in their parishes. An appeal lay from
their decision to the commanding officer of tlie district,
and from him to the Governor assisted by a council of
captains. Criminal offences were to be dealt with by a
court of military officers, and under military law. The
proceedings in tlieir courts were simple and free from
technicality, and followed, as far as possible, the laws and
ancient customs of the colony.
This period of Canadian history is known as tlie
" regue militaire." The name, although an accurate
description of the situation in which matters stood, is apt
to be misleading. It is too often held to mean a military
despotism. The courts had nothing of the military
element but the name. The rights and feelings of the
inhabitants were in every way respected. The greatest
care was taken to conduct the government in accordance
with the old laws and customs of the Province, and no
attempt was made to introduce English laws. The one
desire was to provide for the well-being of the people, and
to render iustice between man and man. The free exer-
cise of the lioman Catholic religion was permitted, and
the ecclesiastics were treated with every respect and con-
sideration. The French were not insensible to the treat-
ment they received. In an address to Governor Gage in
1760, they refeiTcd to " the protection they had received
and the peace and prosperity they enjoyed under the new
government. " " The General who conquered us," they
said, " has treated us as a father rather than as a van-
quisher." We are told that " the Canadians dreaded
nothing so much as the return of the French."
ENGLISH CONQUEST TO KEPUESENTATIVE GOVEKNMENT. 25
The Treaty of Paris was signed on February the 10th,
1763. Its effect, for our present purposes, may be briefly
indicated. (1) France ceded to Great Britain " Canada
and all its dependencies," Cape Breton, and all other
islands in the Gulf and River St. Lawrence, and renounced
all pretensions to Nova Scotia, or Acadia, in all its parts.
^2) France received the islands of St. Pierre and Miquelon,
to serve as a shelter for French fishermen ; the right of fish-
ing on part of the coasts of Newfoundland, as specified in
Article XIII. of the Treaty of Utrecht, in the Gulf of St.
LaAvrence at a distance of three leagues from all coasts
belonging to Great Britain, and out of the said Gulf, but
not within fifteen leagues of Cape Breton. (3) The in-
habitants of Canada were to be allowed the free exercise
of the Catholic religion, anr' the liberty to worship accord-
ing to the rites of the Ron. ih Church " as far as the laws
of Great Britain pennit." Nc reference was made to the
laws that were to prevail throughout the conquered
countrv.
The treaty was followed, on the 7th of October, 1763,
by a proclamation of the King, George III., establishing in
the newly acquired territory in America four new govern-
ments, — of which Quebec was one, — and making provision
for the government of the same; and on the 21st of
November in the same year, General Murray was appoint-
ed Governor of Quebec.
2. Canada under the Royal Proclamation, 176S-177j^.
The proclamation began bv setting out the boundaries
of the various governments. Anticosti and Magdalen Islands
were placed under the care of the Governor of Newfound-
land; and the islands of St. John (Prince Edward Island)
and Capo Breton, with the smaller adjacent islands, were
annexed to the (^vernment of Nova Scotia. It then pro-
ceeded to empower the Governors of these colonies,— (1)
to summon General Assemblies, with the advice and
26 CONSTITUTIONAL HISTORY.
consent of His Majesty's Council, " so soon as the state and
circumstances of the colonies would admit thereof," and
in the same manner as was usual in those colonies which
were under the King's innnediate government; (2) with
ihe consent of the Councils and representatives of the
people so to be sunmioned, " to make statutes, laws and
ordinances for tiu^ i)eace, welfare and good government of
the colonies ; (3) to establish, with the consent of the
Councils, courts of justice for the hearing and determining
of civil and criminal causes, according to law and equity,
and, as near as may be, agreeable to the laws of England,
with an appeal in civil cases to the Privy Council. The
Governors and Councils were further authorized to grant
lands to the inhabitants as they thought proper, and were
directed to reward with lands such military men as had
served in the ,late war, and were actually residing in
Canada, and should make application for the same. The
Indian tribes were taken under the protection of the
government, and orders were given that they should, on
no pretence, be molested or disturbed in the possession of
the lands reserved to them. Private persons were for-
bidden to purchase from the Indians lands so reserved, and
none were to be allowed to trade with them without leave
and licence from the Governor for such purpose.
As already stated. General Murray was appointed
Governor of Quebec on November 21st, 1763. He was
commanded to execute the duties of the office according to
his commission and accompanving instructions, or such
other instructions as he should receive under His Majesty's
seal, and according to such reasonable laws as he should
make with the advice and consent of the Council and
Assembh . Hu Assembly was to be summoned as soon as
the circumstances of the colonv should admit. The mem-
bers wore to be elected by a major part of the freeholders
in their respective parishes, and, before taking their seats,
they had to take the oath of allegiance and supremacy, and
ENOLISH CONQUEST TO Id a
subject of constant complaint. The belief soon spread
that the British were seeking to deprive them of their
hunting grounds; and the enemies of Great Britain did what
lliey could to strengthen this belief. The interests of the
country demanded that the hostilitv of the Indians should
not be recklassly incurred. The government saw that some
measures must be taken to protect them, if their friend-
ship was to be retained. Accordingly they enacted; — (1)
that the Governors should grant no warrants of survev
ENOLISH CONQUKSr TO UliPHESENTATlVE OOVEKNMENT. 31
beyond their respective f2,overnments; (2) that no private
man sliould be allowed to purchase land from the Indians
except tliroufih the intervention of the p;overnnient.
These ])rovisi(rought before him he reversed the decision of the
Common Pleas, and held that the effect of the Quebec
Act was not to introduce either system of law to the
exelusioii of th<> other. In cases where French law would
apply, lie sai«l, it should be followed in accordance with the
provTsiona of that Act. On the other hand, where the
litig?j!ts were purely English, thev might have recourse to
English law. ^o one seemed to know what laws were in
force under the Act. No certainty existed in matters of
litigation except in the case of landed property, where the
Custom of Paris was quite clear. Complaints were heard
on all sides regarding the administration of justice. In
1787, a commission was appointed to investigate the matter.
The investip-ation led to no immediate result, but the
evidence brought forward showed the great uncertainty
that existed as to the prevailing law, — French or English
law being followed as equity suggested. The result was a
condition of lejial anarchy and confusion.
(2) The Legislative Council failed to satisfy the Eng-
86 coNsri ruTioNAL history.
lisli inhal)itants of the Province. One objection tliey had to
it was, that it imposed a limit on the ambition of those
dcsirinp: to enter pnblic life. Thev wanted a more popular
system of government, and the demand for a Representative
Asvscmbly continned to ionn a par of the numerous peti-
tions which went up to the Home Government during
thesrJo years. The demand found some support even among
the French, who hoped to find in a French Assembly a
security for French law and the Church, which they could
not find in the Legislative Couo.eil.
(3) Perhaps the most important fact of the period in
this connr^ction, was the settlement in the country of the
United Eni,, •'e Loyalists. From the close of the War of
Indeyicndence they continued to arrive in ever increasing
numbers, and at the time of the Constitutional Act, they
were estimated at about 40,000. Many settled in Xova
Scotia and New Brunswick. Many pushed their way up
the St. Lawrence, and established themselves along the
shores of Lake Ontario, where they laid the foundations
of the future province of the same name. Accustomed as
they had been to representative institutions in their old
home, they naturally desired the same in the new. The
Quebec Act, by extending the boundaries of the Province,
had brought the whole of this district under the operation
of the French civil law;* but the conditions which made the
retention of French law along the lower St. Lawrence
necessary did not exist here. On the 11th of April, 1785,
the new settlers presented a petition in TiOndon praying
that the country west of the rivor Bnaudette be incor-
porated into a separate district, with " the blessings of
British laws, and of British Government, and an exemp-
tion from Fi-ench tenure." The inhabitants of this section
of the country w^ere nearly all Biitish. The injustice of
* Mr. Klngsford makes this his chief criticism of the Act.
Expediency demanded the Introduction Into the country of Eng-
lish jurisprudence as far as possible, and all this then unsettled
territory should have been expressly excepted from the operation
of French law.
ENGLISH CONQUEST TO llEPUESENTATIVE QOVEllNiMKNT. 37
subjec.tiiig them to French law was soon evident, and the
necessity of placing them under conditions differing from
those of Eastern Canada, as a matter of policy, early became
apparent 1
In consequence of the continued agitation against the
Quebec Act, and the numerous petitions that aiTivcd
from Canada denunding its repeal, the Home Government
again resolved to intervene. In the lower ])art of the
Province the population was almost entirely French,
accustomed to French Liws and French institutions; and
the agitation there was ])ractically contined to the English-
speaking minority. The settlements along the Upper St.
Lawrence and Lake Ontario, were composed entirely of
llnitod Empire J.oyalists. To bring all under a uniform
system of law and gcvernment seemed impossibh'.
Edmund l^urke thought that to attempt to amalgamate
two populations so diverse in hmguage, laws and customs,
was a ccnjplete absurdity. It was therefore determined to
divide the country into two Provinces, on the lines indicated
in the Loyalist petition of 1785; to give to each a Ilepresen-
tative Assembly of its own, ai »1 leave; it to settle for itself
what laws and customs it wished to observe; and to allow
each to work out its own dcstinv without interference'
from the other. Moreover, their recent ex])erience witli
the American colonies had led English statesmen to believe
that it might be as well to have in (Janada two colonies,
jealous and watchfid of each other, and so prevent the
possihility of anv united effort, which mii>lit result in a
repetition of the American revolution. Accordingly, on
March Ttli, 17!)1, a bill to that effect was introduced into
the House of Conunons by ]\rr. Pitt. The proposed
division of (^niada encountered consi(lerabl(> opposition.
Mr. Lymburne, a merchant of Queb(>c, who was in London
representing the interests of the English-speaking inhabi-
tants of " Tx)we.' " Canada, strongly objected to the " vio-
lent measure" of creating two distinct Provinces. After
much discussion .Mr. Pitt's bill passed the House, and the
" Canada Act," or " Constitutional Act," became law.
38 CONSTITUTIONAL HISTORY.
4. The Maiitime Provinces.
The establishment of representative government in
Nova Scotia has already been described. At that time,
Nova Scotia included, not only the present Province of
Nova Scotia, but also the present Province of New Bruns-
wick. By the Treaty of Paris, in 1763, Prince Edward
Island an '. Cape Breton were ceded to Great Britain, and
by the Royal Proclamation of the same year, both were
annexed to the Government of Nova Scotia,
In 1769, Prince Edward Island v/as made a separate
Province, and Mr. Walter Paterson was made Captain-
General and Govemot-in-Chief over tiie Island. The
terms of his commission were substantially the same as
those of the commission given to Governor Cornwallis of
Nova Scotia in 1749. In 1784, owing chiefly to the influx
of United Empire Loyalists from the [Jnitod States,** Nova
Scotia was divided, and the present Province of New Bruns-
wick was created. Mr. Thomas Carleton was the first
Governor, and his commission was virtually identical with
.those of Governors Cornwallis and Paterson, of Nova
Scotia and Prince Edward Island respectively. In 1786,
Lord Dorchester became Governor-General of Canada, and
it may be noted that his appointment extended to the other
Provinces as well. He received separate commissions as
Governor-in-Chief, not only of Canada but of Nova Scotia
and New Brunswick.
In 1784, Cape Breton was erected into a quasi-indo-
pendent Province, witli a Lieutenant-Governor and
Council. In 1820, it was re-united with Nova Scotia, and
given a representation of two members in the Nova Scotia
Assembly.
' These United Empire Loyalists settled in what became the
City of St. John. They asked to be represented in the Nova
Scotia Assembly. This was denied them, and they then asked to
have their territory set apart as a separate district, with repre-
sentative institutiono. This was done in 1784.
CHAPTER III.
CANADA UNDER THE CONSTITUTIONAL ACT,
1792-1840.
1. The Struggle for Responsible Government in the Two
Canada's.
The avowed object of the Constitutional Act was " to
assimilate the constitution of Canada to that of Great
Britain, as nearly as the diiferenees arising from the man-
ners of the people, and from the present situation of the
Province would admit." It therefore repealed so much
of the Quebec Act as related to the appointment of a
Council for Quebec, and to that Council's powers, and
divided the country into the two Provinces of Upper and
Ijower Canada, pving to each a Governor, Legislative
Council, and House of Assembly, corresponding roughly
to the King's Lords and Commons in England. Tbe
Governor ^\as assisted by a strong but anomolous body
called the executive council. The origin of this body has
already been dt-scribed. Its powers, though vague, were
extensive. Its members, who acted as his advisory board,
were occupants of the highest official positions in the
country, were usuallv members of the Legislative Council,
and, once appointed, were practically without responsibility
for their acts. It was to the arrogance of this Executive
Council, that much of the bitterness of the struggle for
Responsible Government was directly traceable.
The Legislative Council was mixed up with the
Executive Council in a most confusing way. Its members
were chosen by the Crown, and for life, and were respon-
sible onlv to the Crown. In Upper Canada they numbered
not less than seven; in Lower Canada not less than fifteen.
40 CONSTITUTIONAL HISTOKY.
They must be British subjects by birth or naturalization/
or have become such by the conquest and cession of
Canada; and they were required to be of the age of twenty-
one years. It had originally been proposed to make the
office of Councillor hereditary. The idea was abandoned,
but a provision was inserted in the Act reserving to tht
King the power, should he think fit, of annexing to here-
ditary titles of honor the right of being summoned to the
Legislative Council. The object was to create a political
aristocracy in Carada. It may be noted that no such titles
wer-'^ ever conferrod under the authority of the Act. The
Speaker of the Council was to be appointed by the Crown.
The members of the Assembly were elected by the peo-
ple for a definite period, and were responsible to the people
for their conduct in office. In Upper Canada they numbered
not less than sixteen; in Lower Canada, not less than fifty.
The limits of districts returning representatives, and the
number of rey)resentatives to each, were fixed by the
Governor-General. The county members were elected by
owners of lands in freehold, or in fief or roture, of tlie
yearly value of forty shillings sterling or upwards, over and
above all rents and charges payable out of the same. The
members for towns or townships were chosen by persons
having a dwelling-house and lot therein, of the yearly value
of five pounds sterling; or who had resided in the town or
township for a vear next preceding the election, and paid
one year's rent for the dwelling-house in which he resided,
at the rate of ten pounds sterling or upwards, per annum.
The Governor could summon, prorogue or dissolve the
Legislature whenever he deemed it expedient; but it was
to meet at least once a year, and each Assembly was to
' By gection 4 of the Constitutional Act, natuialization required to be
by Act of the British Parliament. The Constitutional Act Amendment
Act of 1830 altered tliat as regards Lower Canada, and made naturaliza-
tion by Act of the Council and Assembly of Lower Canada sufficient,
provided that no such act was to be operative till His Majesty's as-sent
should have been given.
CANADA UNDER THR CONSTITUTIONAL ACT. 41
continue for four years, unless sooner dissolved. It was
further provided that no clergyman or Legislative Coun-
cillor should be a member of the Assembly.
The making of laws rested with the Assembly and
Legislative Council, but no bill became law till it had
received the assent of the Governor. The Governor had
power, not only to give or withhold his assent to any bill,
but also, in case of doubt, to reserv^e any bill for the signi-
fication of his Majesty's pleasure; and s\ich bill was to have
no effect till his Majesty's assent should be communicated
to the Council and Assembly. He was also required to
transmit copies of all bills, to which he had assented, to the
Secretary of State, and they might be disallowed by the
King at any time within two years from their receipt.
The British Parliament retained the right of establish-
ing regulations, imposing, levying and collecting duties,
for the regulation of navigation and commerce l)ctwoeu
the two Provinces, or between either of them and any
other country, but the appoidonment of moneys raised,
was left to the Legislatures of the Provinces.^ This right
had already been reserved to the Imperial Parliament by
the Colonial Tax Repeal Act of 1778 (18 Geo. IIL, cap.
12), and this section merely continued that Act in force.
It was also provided that all public functionaries, including
tlie Governor-General, should be appointed by the Crown,
and removable at the royal pleasure.
The provisions of the Quebec Act, respecting the free
exercise of the Roman Catholic religion, and the clergy of
the Church of Rome, was left unchanged. The King was
*Di,«pntP8 soon aro^e respecting tlie division of tlie revenue arising
from customs on the St. Lawrence. In 1817, it was agreed that one-
fifth of the (lutiea collected in Lower Canada should go to Upper
Canada, and this was ratiHed by tlie legislatures of both Provinces in
the following year. The Lower Canada statute expired in 1819 and the
AsPembly refused to renew it. The British Parliament interfered, and
passed the Canada Trade Act (3 Geo. IV., 119), which made the agree-
ment permanent.
42 CONSTITUTIONAL HISl'OUY.
to have the riafht to set apart, for the use of the Protestant
clergy in the colony, a seventh part of all uncleared Crown-
lands. The Governor might also be authorized, with the
advice of his Executive Council, to erect parsonages and
endow them, and, of himself, to present thereto incumbents
or ministers of the Church of England. The provision
respecting the allotment of lands for the support of a Pro-
testant clergy, etc., might be varied or amended by an Act
of the Legislature of the Province, but no such Act could
be assented to by the King until thirty days after it had
been laid before both houses of the Imperial Parliament.
The lands to be granted in Upper Canada were to be
held in free and common socage, and persons already hold-
ing lands there on any other tenure, might receive fresh
grants without prejudice to any existing rights or titles.
Grantees in Lower Canada might also receive their land in
free and common socage, if they so desired.
The Governor and Executive Council were to remain
a Court of Appeals until the Legislatures of the Provinces
should make other provisions, and it was also enacted, that
during the interval which might elapse between the com-
mencement of the Act, and the first meetings of the Legis-
lature of each Province, the power of making temporary
laws should rest with tlie same authorities.
The bill became law on the 14th of March, 1791.
Lord Dorchester, the Governor-General, being absent in
England, the duty of carrying out the provisions of the x\ct
devolved upon Sir Alured Clarke. The instructions to es-
tablish the separate Provinces of Upper and Lower Canada
were delivered to him on the 11th of November, by Lieu-
tenant-Colonel Simcoe, the new Lieutenant-Governor of
Upper Canada. Clarke himself was made Lieutenant-
Governor of Lower Canada. On the 18th of November a
proclamation Avas issued fixing December the 26th as the
day when the division of the Province should take effect.
The Ottawa River was named as the boundary line between
CANADA UNDER THE CONSTITUTIONAL ACT. 43
the Provinces, in accordance with the terms of an order of
the King in Council, dated the previous 24th of August.
The population of Lower Canada at the time of division was
about 125,000; that of Upper Canada less than 20,000.
On the 7th of May, 1792, Lower Canada was divided
into fifty electoral districts, returning fifty representatives;
and the first Legislature of that Province met at Quebec on
the 17th of December, in the same year. The Legisla-
tive Council consisted of fifteen members. A Frenchman
was elected speaker of the Assembly, and a resolution was
passed requiring the use of both the French and English
languages in debate, and in the Reports of the House. The
Parliament of Upper Canada, — with a Legislative Council
of seven members, and an Assembly of sixteen, — met for
the first time at Niagara, on the 17th of September, 1792,
and continued in session till the 15th of October. Eight
bills were passed. The Ancient laws of Canada were abro-
gated without prejudice to existing rights, and it was
provided, that in all future controversy with reference to
property and civil rights, resort should be had to the laws
of England as a rule for the decision of the same. Trial
by jury was also Qstablished, and British rules of evidence
were to be obseiTed. The Criminal Law of England and
the Habeas Corpus Act were already in force in both Up-
per and Lower Canada. The general effect of the Constitu-
tional Act, was to make Upper Canada a British Province,
with English laws, English institutions, and with all lands
held on freehold tenure. Lower Canada, while receiving
representative institutions, and the Criminal Law of Eng-
land, remained, in other repects, a French Province.
The new constitution continued in operation for less
than half a century. For a time it seemed to work well.
]^>entually, however, conflicts arose between the different
branches of the Legislature, which kept the country in a
state of continual agitation, and which led to the Rebellion
of 1837-8, and the establishment in Canada of a new form
44 CONSTITUTIONAL HISTORY. •
of government. The chief causes of dispute may be briefly
outlined.
(1) The constitution and position of the Executive
Council. In Enp;land, the Cabinet was chosen from the
dominant party in the House of Commons, was directly
responsible to the House of Commons, and as soon as its
advice ceased to be in harmony with the views of the ma-
jority of that body, could be forced to resign. In Canada,
the members of the Executive were chosen from the official
classes, — usually from the members of the Legislative
Council, — and the Assembly had no power of calling them
to account for their deeds. Entrenched in their position
behind the Legislative Council, which continually threw
out the Assembly's bills, the Executive could afford to defy
public opinion, and did. The representative government
given by the Act of 1791, was but a name. The Executive
represented the views and wishes of a small and exclusive
class, — a class which looked with disfavour on the growing
spirit of republicanism in Canada, and clung to the theoiy
that Canada was to bo ruled from London. Its government
was the government of an oligarchy. In Upper Canada
this oligarchy came to known as the " Family Compact,"
and the name gradually spread to the other Provinces. In
Lower Canada this oligarchy was composed chiefly of the
English speaking minority, and there the political quarrel
was further aggravated by racial feelings. The demand
went up for an Executive that should be more representa-
tive of the people, and should also be directly responsible
to them for its acts. About 1828, the Home Government,
acting on the recommendations of the Canada Committee,
yielded the first point; and the Governors were instructed
to choose their Executives from among the members of both
Houses; but these instructions were usually carried out in
such a way that the object of the reform was defeated. On
the second point the Home Government showed more hesi-
tation. They dreaded anything which might make the
colonists too independent, or tend to weaken the authority
CANADA UNDER THE CONSTITUTIONAL ACT. 45
of the Crown; and wiiile their intentions w,ere good, they
did not yet fully understand the situation in Canada. .It
Avas not until after they had received Ix>rd Durham's Ee-
port, that they fully recop:nized the necessity of fp-anting
Resjionsiblo Government to Canada.
(2) The control of " the casual and territorial reve-
nues," and of the supplies and the civil list, was a cause of
constant trouble. It was in Lower Canada that the finan^
cial dispute was most ap:^avated. The Province had three
sources of revenues, — (1) that derived from the tax im-
posed by the Crown on spirits and molasses under the
Eevenue Act of 1774 (14 Geo. III., 88); (2) that derived
from the sale of lands, timber, mines, etc., called the
"Casual and Territorial Revenue"; and (3) that derived
from taxes imposed by the Assembly itself. The first two,
constituting the Crown revenues, were under the control
of the Governor and his Council, and it was from them
that the expenses of the government of the Province was
defrayed. About 1813, the royal revenues ceased to be
sufficient to cover these expenses. On the other hand, the
revenues voted by the Assembly were in excess of its ap-
propriations for expenditure, and a surplus was created.
This surplus was used by the Governor to meet tlie defici-
ency arising in the civil government, without authority
from the Assembly. This continued until about 1811:, and
was the cause of considerable confusion and dissatisfaction.
In that year Governor Sherbrooke brought the matter to
the attention of Lord Bathurst. Bathurst recommended that
for the future the Legislature be called upon to vote the sum
required for annual expenditure. The Executive of that
time was not responsible to the people, and did not possess
the people's confidence. The Assembly saw the enormous
power which the vote of supplies gave them. They refused
to establish anything like a permanent civil list, but claimed
the right of subjecting every item of expenditure to an
annual vote, thus making every civil servant dependent
on the personal feeling or caprice of the individual mem-
46 CONSTITUTIONAL HISTORY.
bers. The Legislative Council resented this claim. Time
and again the supply bill was sent down to the Assembly,
where it was discussed item by item, amended, and returned
to the Legislative Council, only to be thrown out by that
body. From 1833 to 1836 no supplies were voted, and
matters came to such a pass that the transaction of business
was impossible.
(3) The " Clergy Reserves " also formed a subject of
dispute. The Act of 1791 authorized the setting apart of
one-seventh of the Crown Lands for the support of the
Protestant religion in Canada. In Lower Canada this was
taken as an unjust discrimination against the Roman Cath-
olic church; but the financial question overshadowed it.
In Upper Canada the complaints raised were more serious,
and the Reform party made this matter one of their princi-
pal grievances. Three objections were raised against the
provision: 1. If was said that the grant was too large.
2. The Reserves did not lie in one block, but were made
up of every seventh lot in the surveyed townships. These
remained unimproved while the land about them was
cleared, and thus prevented the formation of connected
settlements. (3) The management of the lands was in the
hands of the " Family Compact," who chose to interpret
the words " Protestant clergy " as referring to the Church
of England alone. The Presbyterians were able to make
good thoir claim to share in the benefits of these grants,
but other dissenting bodies were excluded, and much sec-
tarian animosity was aroused. The dissatisfaction was still
further increased when, in 1835, Sir John Colbome quietly
formed fifty-seven rectories of the Church of England, and
provided for their support from the Clergy Reserve.
(4) Disputes arose in a variety of other subjects. The
Executive's administration of Crown Lands was attacked
in Upper Canada. In both Provinces, the question of judi-
cial independence was raised. In 1814, Chief Justice
Sewell was impeached by the Assembly of Lower Canada,
on a charge of having changed the rules of procedure in
CANADA UNDEK THE CONSTITUTIONAL ACT. 47
his court without proper authority. Judj^e Monk, of Mont-
real, was also charf^cxl witli official corruption. The Legis-
lative Council refused to concur in these impeachments,
and the Governor refused to suspend the Judges from
office. The Assembly demanded that henceforth Judges
sliould be excluded from holding seats in either House of
Parliament. The difficulty arising out of the division, be>
tv^een Upper and Lower Canada, of the duties on goods
imported by way of the St. Lawrence has already been
referred to. It may be noted in this connection, that as
early as 1822, a scheme was proposed for uniting the Can-
adas; but it provided for the use of no language but Eng-
lisli in the parliamentary reports. The French protested
and the plan was dropped.
The agitation was not confined to Upper and Lower
Canada, but extended also to the Maritime Provinces. 1 In
the different provinces the struggle took different shapes.
In all, the contestants were the same, and the great object
to be attained was the same. On one side was ranged the
Assembly, representing the people; on the other, stood the
Legislative and Executive Councils, usually in alliance with
the Governor. In all, the difficulty arose from the fact
that they had the form of representative government with-
out the reality; and the struggle was for the reality, — for
what is known as Responsible Government. The real issue
was clouded by other raattei-s. Racial and religious feelings
were aroused. When Lord Durham came, he found not
only a " contest between a government and a people," but
also " two nations warring in the bosom of a single state " ;
a struggle not of principles, but of races.
As a consequence of the continual agitation in the
Canadas, the Imperial Government was again called upon
to intervene. In 1828, a committee, known as " The Can-
ada Committee," was appointed to examine into the points
at issue. This committee recommended among other
things, — (1) that the Executive and Legislative Councils
be made more representative; (2) that the Crown duties
48 CONSTITUTIONAL IlISTOllV.
be placed under the control of the Assembly on condition
that permanent provision should be made for the payment
of Crown officials; (3) that the judges should give up their
seats in the Legislative Council. To a certain extent the
Colonial office sought to carry out these reconunendations,
but the Crown still refused to give up to the Assembly the
control of the Casual and Territorial Revenues, and the
dispute became hotter than ever. In 1834, the Assembly
of Lower Canada formulated their grievances in what ar^j
known as " The Ninety-two Resolutions." Lord Gosford
came out in 1835 as Governor-General, and as chairman of
a commission of inquiry. One of the things demanded in
the resolutions of 1834, was an elective Legislative Council.
In 1837, Lord John Russell carried a measure in the House
of Commons, in which this demand, as well as others, was
positively refused. As the Assembly had for five year*
refiised to vote supplies, I^ord Russell's bill authorized the
Governor-General to take £142,000 out of the Provincial
Treasury and pay all arrears of the civil list. The result was
rebellion. On the 10th of February, 1838, a bill was
passed in England suspending the constitution of Lower
Canada, and on the 29th of March, in the same year. Sir
John Colbome appointed a special council to make tempor-
ary provision for the governent of the Province. In May,
1838, Lord Durham arrived as Governor-General and also
as special comissioncr, with power to settle disputes and
for " the adjustment of certain important aifairs, affecting
the Provinces of Upper and Lower Canada." Lord Dur-
ham remained in Canada imtil the 3rd of November in the
same year. On his return to England, he laid before Par-
liament an elaborate report dealing with the political diffi-
culties of the Canadas, and recommending Imperial legis-
lation to remedy the existing evils. He advocated, — (1)
that the Canadas be reimited under one Legislature, and
reconstructed as one province; (2) that the Executive be
made responsible to the Assembly; (3) that the control of
the Crown revenues be given over to the Assembly, on con-
CANADA UNDER THE CONSTITUTIONAL ACT. 40
dition of their votlufr an adcdUftto civil list; (4) that the
indepeudciico of the .iudj:^08 should bo secured; and (')) that
municipal institutions bo established without further delay.
In the union ho ho|)ed to find a cure for race jealousies, by
causinp: parties in Canada to divide on new lines of local
or sectional interest, rather than on those of race and lan-
guage. In the second and third of the proposed changes,
he hoped to find a cure for the constitutional evils of the
country. On the 3rd of May, 1839, a royal message was
laid before the Imperial Parliament recommending a union
of the Canadas. In June, 1839, a bill to re-unite the two
provinces was introduced, but was allowed to stand over, iu
order that the Canadas might be consulted and more in-
formation obtained. Mr. Poulett Thomson came out as
Governor-General in November, 1839. He called together
the special council which at once accepted the scheme of
union. In December, he met the Legislature of Upper
Canada, and both Houses passed addresses in favour of the
proposed union. In the following year. Lord John lius-
sell again brought forward his bill, which now passed both
Houses, and was assented to on the 23rd of July, 1840.
//. The Striuj(jle for Responsible Government in the
Maritime Provinces.
In New Brunswick, the struggle between the As-
sembly and the Executive Council began almost un-
mediately after the organization of the Province. The
question at issue was that of the appropriation of the
revenues. The Assembly demanded the right of raising
and controlling the revenues. The Legislative Council
resisted their claim. A dead-lock ensued, and for three years
(1796-1799), no revenue or appropriation bills were passed.
At length a compromise was reached, but the settlement
was only temporary, and the quarrel soon broke out again.
Under the leadership of Mr, Lemuel Allan "VVilmot, the
Reform Party began pressing its demands. Its first suc-
cess was to have the Governor instnicted to choose his Ex-
H.C.H. -4
50 CONSTITUTIONAL HISTOllV.
ocutivc tVoiii tlie iiKMiilx'rs of hotli IIo\is('s. The (Governor
made tlu; conccssifni vain l)y rcfuHiii^ to ap]>()iiit any now
nicniluTs to liis council. TIk* Kcfornicrs next attacked the
Crown Land Department, winch was numa^cd Ijy a com-
missioner, and the revenues of wliieh formed tiie Casual
and Territorial Revenues, and were used to pay tlie ex-
penses of tlie civil list. Tho Assembly asked for an ac-
count of the expenditure of this revenue and the re(piest
was refused. A delef;atioii was sent to London to ask
that the disputed revenues be placed under the control of
the Assembly, hut tlie mission failed. In 1830, the As-
6end)ly ])assed a resolution calling- for a detailed statement
of the sales of (lovernment lands for the preceding' year.
The demand was again refused. Mr. Wilmot and Mr.
Crane went to England with a n(!W i>etiti(jn. As u residt
the Assembly was given fnll charge of tlu^ disputed re-
venues, and was reciniicd in return to make permanent
provision for the salaries of governors aiied to coMseiit,
(•oii.si(h'riiig the amount excessive. l'"or a year no tax was
collected. A general election came <»n. The new As-
sendilv was even more unvielding than the ohl, and tlio
("oinicil wa.s at last forced t everv claim to dispose of
Pro\incial monevs and the Canadian Legislature was given
fidl i^ower to grant a civil list, and to provide for the re-
muneration of judges, and other officers of the civil ser-
vice, in the Pro\inces. At the same time, by 9 and 10 Vic.
c. {>4, the control of the post office was given up to the
Legislature of Canada. In 1840, by the Act 9 and 10
Vic. c. 94, the British possessions in Xorth America were
freed from imperial interference in matters affecting trade
and commerce, and the various colonial legislatures were
empowered to adopt measures for the repeal of any imper-
ial protective customs' duties, which had been previously
imposed upon them. In 1849, bv the Act 12 and 13 Vic.
c. 29, the old navigation laws, by which nearly all the
trade between the mother country and the colonies was
limited to ships of British tonnage, were repealed, and the
St. Lawrence was thrown open to the use of vessels of all
nations.
(7) In 1848, by 11 and 12 Vic. c. 50, the provisions
of the Union Act requiring the exclusive use of the Eng-
lish language in the legislature, was repealed. In 1854^
17 and 18 Vict. c. 118 was passed, empowering the Cana-
dian Legislature to alter the constitution of the Legislative
CANADA UNDER THK UNION ACT. 59
( liiuicil. In LSod, tlie C'tinadiun J.t'gislatmv passed a bill
]in.\i(ling for an elective Upper Iluiise of -tS meiiibers, —
ruciity-four to l»e elected from each of the oM Provinces.
I'iie tirsjit election of ccnincillors to(»k ))lace in Is.'id.
The constitntion of 1N40 remained in ojteration until
l"^t>7. Its nnnn weakness lay in the fact that it compelled
t\V(» Provinces, resentation as
the safeguard of their speech and institutions, and resisted
the demand. The principk^ of a " doulde majority " was
one of the expedients by which it was hoped to arrange
tlu^ contlict. It was asserted that no administration ought
to continue in power unless it was supported by a majority
from each section of the united Provinces. The ])rinciple
was iovml to bo unworkable, and was abandoned. ^lean-
while the disparity in population continued to increase,
and the cry from L'pper Canada for " Representation by
Population " became louder and louder. The parties were
so evenly balanced that a single vote might decide the fate
of an administration. From the 21st of May, 1802, to
June, 18G4, five different ministries were in power. Dur-
ing the session of 18 04-, a coalition government was formed
on the basis of a federal union of all the British American
Provinces, or, if that should fail, of the two Canadas. It
happened that, at this time, Xova Scotia, Xew P>runswick,
and Prince Edward Island were contemplating a " ]\[ari-
time rnion," and delegates from the three Provinces were
to meet at Charlottetown to discuss the question. The
(iO CONSTITUTIONAL HISTORY.
coalition Govcniinent of the two Canadas asked leave to be
represented. The conference met on the 1st of September,
18«!4. The representatives from the C'anadas laid before
the convention their larger scheme. It was decided to
hold another conference at (^nebec to discnss the latter.
The second conference met on October lOtli, and resulted
in the adoption of seventv-two resolutions, which form
tlie basis of the British Xorth America Act. In the session
of 1865, the Legislature of Canada passed an address to
Her Majesty, praying her to submit to the Im])erial Parlia-
ment a measure " for the purpose of uniting the Provinces
in accordance with the Quebec resolutions." After some
hesitation, Xova Scotia and Xew Brunswick agreed to tlie
union, but on condition that some changes in the tenns
should be made, which would be more favorable to the
interests of the [Maritime Provinces. Another conference
was held at London in the fall of IfSOB, when a few changes
in the financial terms of the contemplated union were
made. On the 12th of February, 1867, a bill was intro-
duced into the Imperial Parliament, ])roviding for the
union of Canada, Xova Scotia, and Xew Brunswick. The
bill received the roval assent on the 2Uth ^larcli, and the
ft '
new constitution came into force on the first of July, 18G7.
By section 14<» of tlu^ Act of ISHT, ]n'ovision was
made for the admission of other colonies on addresses from
the Parliament of Canada, and from the Legislatures of
the respective Provinces, Rupert's Land and the Xorth-
West Territory might also be admitted on the address of
the Canadian Parliament.
During the fii-st session of the new Parliament an ad-
dress Avas adopted asking for the union of Bupert's Land
and the Xorth-AVest Terntory to the Dominion. In 1070,
Charles II. had granted a charter to what was called the
"Hudson's Bay Company," giving them full control of
that country for two hundred years. In 1784, a rival
company, known as the " Xortli-West Company of Can-
CANADA UNDKK THE UNION ACT. 61
iiila," WM foriiied; but in 1S21 tlio two eoiiipanics iiuittMl.
At the tiint' of the passing' of the address ah'eady referred
to, this country was still in the hands ot" the Hudson's liav
Company. The address received u favorable resjjonse, and
in Jidy, l!S()8, an act was passed authorizing her Majesty
to accept the transfer of the teiritory in ([lU'stion, and to
udnut the same into the Dominion of ( 'anarnment and the change from
constitution to constitution. Since Confederation its
development has been witiiin rather than without the
constitution; and the change has been not from one con-
stitution to another, but from one interpretation to another
of the constitution enacted in 1807. This development
becomes one in which leaal technicalities rather than the
64 CONSTITUTIONAL HISTORY.
benefit of tlu- coinmiinity a]ipears as the prevailing fea-
ture. I'o understand that phase of Canadian Constitu-
tional TTisfory it becomes necessary to consider in detail
the British Xorth America Act of 1867, and its various
amendments. The second part of this work is devoted to
that task.
PART II.
CANADIAN CONSTITOTIONAL LAW.
H.C.H.— 5
PART II.
CANADIAN CONSTITUTIONAL LAW.
Constitutional Law is that department of jurisprud-
ence which relates to the system of government of a
country, and Canadian Constitutional Law is that par-
ticular division of Constitutional Law which relates to
the svstem of government prevailing in the Dominion
and the Provinces of Canada.
Constitutional Law is an important part of law in
Canada, because it facilitates the inquiry into what Ln-
perial laws are in force in Canada, and enables one to fix
the definite limitations of the various authorities that have
power to enact legislation operative in Canada.
There are three great authorities which have power
to enact such legislation, and they are the following: —
1. The Imperial Parliament,
2. The Canadian Parliament, and
3. The Provincial Legislatures, including the law-
enacting bodies of the Canadian Territories and the other
organized parts of Canada.
The first of these authorities has unlimited powers;^
while from it the others derive their entire jurisdiction.
AVithin their limits these otlier authorities are supreme ;
and are also entirely independent of one anotlier ; and
any one of them cnnnot, with eert-ain exceptions (to be here-
inafter s]K>cifieTbid. § 4.
' 28-29 V. c. 63, § 1 (Imp.), (1865).
- See post as to the Criminal Law in all the Provinces and
Torritorles.
IMPERIAL STATUTES. 71
(c) The Enfilish Statutes of jeofails, of limitations,
and for auiendmeiit of the law (omitting local statutes)
enacted prior to January 17, 1822.'
(d) The English ThcUuson Act.*
From these classes of laws, Blackstone excepts such
English laws as were not applicable to the state and con-
dition of the colony.
Manitoba.
The Civil and Criminal Laws of England as they were
on July 15, 1870, in so far as thev are applicable, and
have not been changed by legislation affecting Manitoba."
British Columbia.
The English Civil and Criminal Laws as existing on
Kovember 19, 1858, in so far as same are not from local
circumstances inapplicable, and have not been changed."
27/ e North-West Territories.
The Civil and Criminal Laws of England as they were
on July 15, 1870, in so far as they are applicable, and
have not been changed by legislation affecting the North-
West Territories.^
In Quebec, Xova Scotia, Xew Brunswick and Prince
Edward Island there are no statutes such as there are in
the remaining Provinces of Canada, determining speci-
fically what Imperial enactments are in force in those
older Provinces. And, in the absence of such statutes, it
is submitted that the only Imperial laws having the force
of law in those four Provinces are such laws as within the
above enumeration have the force of law in the whole of
Canada.
' R. S. O. (1897) c. 111. §§ 1 and 2.
* IMd, 8 3.
' 51 V. c. 33 (Dom.).
" Act No. 70 of 30 V. (B. C), and R. S. C. (1886) c. 144, § 2.
' R. S. C. (1886), c. 50.
72 CANADIAN CONSTITUTIONAL LAW.
The Imperial Statutes and Orders in Council af ct-
ing Nova Scotia, New Brunswick and Prince Edward Is-
land, and constituting the foundations of the early con-
stitutions of these Provinces, are to be found in Ap])er.dix
2 to the third volume of Cartwright's Cases on the British
North America Act (1887).
By the Criminal Code, 1892, § 5, it is provided tluit
no one shall be proceeded against for any offence against
any statute of England, Great Britain, or the Unites be attracted by its substance. Moreover, some of the
sections of the Act, amonc: them sections 2,^ 25, 42, 43,
SI, 89, 127, 145, and'parts of 4, 51, and 88 have recently
(1S93) been repealed," since, having fulfilled their pur-
pose, they are now obsolete, and are consequently no longer
"It is submitted tliat section 3 is here intended. See post,
note to § 2.
" 56 V. c. 14 (Imp.), The Statute Law Revision Act (1893).
74 CANADIAN CONSTITUTIONAL LAW.
of any use to jurisprudence, tliougli they may be of use
to liistory.
The British Xorth America Act, 1867, consists of a
preamble, and eleven ))arts, comprising 147 sections and
5 schedules. Its title and sub-title are: —
" The B. ^^ A. Act, 1867 (.30-1 V. c. 3). An Act
for the Union of Canada, Xova Scotia and Xew Bruns-
wick, and the goveniment thereof, and for ])unioses con-
nected therewith."
Note. — The B. N. A. Act, conferring legislative powers Is not
to be construed rigorously like a Penal Act, conferring judicial
powers.'"
In Attorney-General of Canada v. Attorney-General of
Ontario (20 O. R. 222, at p. 254 [1890]), Boyd, C, employed the
following words: "A liberal construction is to be given to this
Act as a broad constitutional statute conferring and distributing
high and large powers of government both as to Canada and the
Provinces. This Act is to be read in the light of history, with a
view to adjust its parts to the life and growth of free political
communities."
The Preamble recites that the Provinces of Canada, Nova
Scotia and New Brunswick have expressed their desire to be
federally united into one Dominion under the Imperial Crown,
with a constitution similar in principle to that of the United
Kingdom; that such a union would advance Provincial and Im-
perial Interests; and that such constitution should provide for
legislative and executive authority, and with a provision for
admitting other territory Into the union.
The expression of desire above lef erred to was contained In
the Quebec Conference Resolutions of 1864,' which formed the
foundations of the B. N. A. Act,
Compirlson has frequently been Instituted between the
Constitution of Canada and those of England and the United
States of America. The results of such comparison may be stated
briefly as follows: —
1. The Canadian Constitution, and also the Constitution of
the United States of America resemble the English Constitution
in the following particulars: —
"' Paige V. Griffith, 18 L. C. J. 119, at p. 122 (1873).
' See Houston's Constitutional Documents.
ENGLISH AND AMERICAN CONSTITUTIONS. 76
((() Tliey each recognize the principle of government by tho
people.
(h) They each make a distinction between their legislatures
ami their executives, that la, between their law-making and their
law-executing bodies.
2. The Canadian Constitution and also the Constitution of
the United States of America differ from the English Constitu-
tion in the following particulars: —
((/) The Canadian and the American Constitutions are to be
found in documents specifically intended to be constitutions,
while that of England Is to be found in customs, habits, conven-
tions, judicial decisions, traditions, and institutions preserved
and followed for centuries.
(b) In Canada and the United States the legislature and the
executive are creatures of law; in England they are the growth of
the aees.
(c) In Canada and the United States the legislature is sub-
ordinate to the Judiciary, and all the legislation of all the legis-
lative bodies in both countries is subject to examination by the
Courts, but in England the Courts have no control over Parlia-
ment whatever.
(rf) In Canada and the United States the legislature and the
courts are each supreme within their respective defined jurin-
dictions, but in England the legislature is supreme, and has
absolute control over the Courts.
(f) In Canada and the United States, the legislatures can
validly legislate only within the spheres their constitutions have
allotted to them, but in England the legislature can validly legis-
late concerning everything.
if) In Canada and the United States the constitutions can-
not be changed by the legislature, except in certain particulas
and under certain circunistaices. In England the constitution
may be changed by the legislature in any part and under all
circumstances.
3. The Constitution of Canada resembles that of the United
States in the following particulars:
(o) In each of Canada and the ITnited States there Is one
central legislature with a jurisdiction extending over the whole
country, and a number of subordinate local legislatures with
jurisdictions territorially as wen as otherwise limited.
(6) In both Canada and the United States all the local legis-
latures are entirely independent of one another.
(c) In both of these countries the central and the local
legislatures are each supreme within the spheres of their
respective jurisdictions.
76 CANADIAN CONSTITUTIONAL LAW.
(d) In both countries the powers of all the legislative bodies
are legally limited by the authorities constituting them. (The B.
N. A. Act in Canada, and the American Constitution in the
United States.)
(e) In both countries the legislature and the Courts are inde-
pendent of one another, and are supreme within the spheres of
their respective jurisdictions.
if) In both countries the legislatures are creatures of the
authorities constituting them, and have no powers except those
which such authorities have given them.
(fir) In Canada and the United States an unconstitutional pro-
ceeding of the legislature is corrected by the Courts, which are
the creatures of the laws that the people have enacted; in Eng-
land an unconstitutional proceeding of the legislature is correct-
ed (if at all) by the electorate alone. The results, conservative
constitutional historians contend are not sufficiently dissimilar
to Justify a closer harmonizing of the systems.
4. The Constitution of Canada differs from that of the United
States in the following particulars: —
(a) In the United States control over a specified number of
subjects is vested in the central government (the American Con-
gress), while control over all other subjects is vested in the
various local (State) legislatures. In Canada, control over a
specified number of subjects is vested in the local (Provincial and
Territorial) legislatures, while control over all other subjects is
vested in the central government (the Dominion Parliament);
or in other words in the United States the residuum of power is
in the State (or local) legislatures, while in Canada it is vested In
the Dominion Parliament (the central government).^
(b) In Canada and also in England the Cabinet or Ministry is
chosen from among the members of the predominant party in
the representative body; and the majority or more important
officers" of this Cabinet are themselves representatives of
sections of the electorate. As such predominant party is the
choice of the electorate, its representatives in the Cabinet are
directly responsible to the people. A government carried on in
this way is called responsible government. In the United States
the Cabinet is composed of men who are not chosen from, and do
not occupy seats in any representative body, who frequently are
of a contrary political persuasion from that of the majority in
*ValIn V. Langlois, 5 A. C. 115. See judgment of Ritchie
C.J., in Supreme Court of Canada, 3 S. C. R. 1 (1879).
» E.g. the Ministers who control the principal money expend-
ing departments.
ENGLISH AND AMERICAN CONSTITUTIONS. 77
the representative body, who are nominees of the President, and
who are consequently not responsible for their official acts to the
people.
(r) In Canada and also In England the legislatures have
power to interfere with the contracts of anyone. In the United
States the legislatures cannot interfere with contractual relation-
shiDs.*
((/) In Canada a tax bill before being Introduced Into Parlla-
niftnt must be recommended by the Governor-General; and such
'.>ill must originate in the representative house. In the United
States such a measure may be introduced without recommenda-
tion, by anyone, und in any house.' In Canada, it is usually in-
troduced by a Minister of the Crown.
(f) In Canada, the federal power can veto Provincial legisla-
tion, but in the United States there is no veto power in the
Congress.
One other point may be of interest. Time does not run in
Canada against ultra vitrx legislation.
The first part of the Act is entitled " Preliminary,"
and consists of sections 1 and 2.
t
SECTIOX 1. Gives the Confederation Act the title
of the British Xorth America Act, 1867.
This Act has also been called The Federation Act."
There are two other Acts entitled the same as this one; they
are the B. N. A. Acts of 1871,' and of 1886,' respectively. By sec-
tion 3 of the latter of these the three Acts are to be construed
together and are to be called The British North America Acts,
1867 to 1886. The Parliament of Canada Act (1875)» amends
section 18 of this statute.
SECTION 2. Extends all references to Her Majesty
in the Act to her heirs and successors
' See note 2 to § 41, post; 4 Wheat, 518 (1819).
See § 54, oost.
" Hank of Toronto v. Lambe, 12 A. C. 575 at pp. 5S3, 586, 587
<1887).
■ 34-35 V. c. 28 (Imp.).
" 49-56 V. c. 35 (Imp.).
" 38-39 V. c. 38 (Imp.). See notes to section 18.
78 CANADIAN CONSTITUTIONAL LAW.
Tbis section appears to have been repealed,'" as spent; but it
is submitted that a clerical error exists in at least the printed
copies of the repealing enactment, and that what the legislature
contemplated repealing was not this section, but the section
immediately succeeding. Section 3, or at least part of it is spent;
the day has long been named and the proclamation has long been
published, and is now a part of history. What has been done
cannot be undone, and the existence, or the non-existence of that
section, can have no further influence on Canada. But with sec-
tion 2 repealed, a great many of the continuing sections of the
statute are materially afTecteo; and among others, sections 9, 10,
14, 26, 27, 55, 56 and 57, shall cease to be operative on the demise
of the Queen. In a sentence Imperial Sovereignty is to remain
in Canada only during the present monarch's life. That so great
a revolution could have been intended to occur so tranauilly in
Canada when one of much lesser dimensions was averted,
although it was induced by many years of unrest, in another
portion of the Empire, is scarcely probable. And that a ui^e
ful and indispensable section of a statute, should have Ijeen
repealed, while one that is useless as well as spent should be con-
tinued, is an uncommon experience in Imperial legislation.
The second part of the Act is entitled " Union," and
consists of sections .') to 8 inclusive.
SECTION 3.^ Provided that Upper and Lower Can-
ada, Nova Scotia and New Brunswick should, on a day,
within six months after the passage of the B. N. A. Act,
which day was to be named in a Royal Proclamation,
become the Dominion of Canada.
1. The proclamation bore date May, 22, 1867, and the day
named was July 1st, of that year.
2. The object of the Act was to create a fede \l government
In which all should be represented, intrusted with the exclusive
administration of affairs in which they had a common interest,
each Province retaining its independence and autonomy.-
SECTION 4. Provided that the subsequent pvovi-
.'jjons of the Act should operate from and after the Union.
'"See 56 V. c. 14 (1893), (Imp.).
' See notes to § 2.
'Maritime Bank v. Receiver-General of N. B (1892) A. C. 437.
judgment of Lord Watson.
SECTION FOUR. 79
unless the contrary appeared. And the name Canada shall
mean Canada as constituted under the B. N. A. Act
The portion of this sub-section nynopslzed in the first of the
two immediately preceding sentences has been repealed, by the
Imperial Statute Law Revision Act, 1893 (56 V. c. 14).
SECTION 5. Divides Canada into four Provinces:
Ontario, Quebec, Nova Scotia and New Brunswick.
There were at the time of Confederation three other pro-
vinces in Canada — Newfoundland, Prince Edward Inland and
British Columbia. Pursuant to the authority siven in section 146.'
of the B. N. A. Act, two of these, Prince Edward Island and
British Columbia, have since 1867 been admitted into the Union;
and pursuant to the authority given by the B. N. A. Act of 1871.*
a new Province, Manitoba, was constituted and admitted into
the Union.
SECTION 6. Separates the Province of Canada as
it existed at the Union into two parts, and constituted that
part of it which, prior to 1840, was Upper Canada into
the Province of Ontario, and that part of it which, prior
to that date, was Lower Canada into the Province of
Quebec.
SECTION 7. Gives Nova Scotia and New Bruns-
wick their present boundaries.
SECTION 8. Provides for a decennial census — the
first part to be in 1871, — the same to distinguish the
populations of v-^ach of the four Provinces.
The Third Part of the Act is entitled '* Executive
Power," and consists of sections 9 to 16 inclusive.
SECTION 9. Continues the executive power of Can-
ada in the Queen."
The Queen having surrendered to Canada the right of sef
government retains some rights and prerogatives still in crn-
nectlon with Colonial affairs. They are as follows: —
1. The appointment of the (}overnor. Provided that the first session of the
Canadian Parliament should be called together not later
than six months after the Union.
It was called together on the 6th of November, 1867, and was
prorogued on the 22nd of May, 1868.
SECTION 20. Provides for an ainiual session of the
Canadian Parliament, and also provides that one yesir
is not to intervene between the last sitting of one session
and the first sitting of the session succeeding.
§§ 21-3G affect the Senate.
•■ See B. N. A. Act, § 21 et «♦• and 70 afiect Ontario. ^
SECTIOX' GO Enacts that Ontario shall have a
legislature consisting of a Lieittenant-Governor and a
Legislative Assembly.
SECTIOX" 70 Fixes the memlership of the Ontario
Legislature at 82 members, one for each of the electoral
divisions set out in Schedule I. to the B. X. A. Act.
By section 92, sub-section 1, the representat'an has been
changed. The membership of the Ontario Legiblature is now 94
members.^ Schedule I. to the Act having been Huperseded, it is not
liere reproduced.
•St. Catharines Milling and Lumber Co. v. The Queen, 13 S.
C. R. 577. affirmed in Privy Council, 14 A. C. 46 (1888).
'By R. 8.0.(1897) c. 6, §§ 14-18.
SECTION SEVENTY-ONE. 95
2. Sections 71 to 80, iiieliisiivt' affect (Quebec.
SECTION 71 (iives Quebec a legislature of the
Lieutenant-Governor and two houses — the Legislative
Council and the Legislative Assembly.
The Provincial Legislatures have as Incident to their express
powers under the B. N. A. Act the right to summon witnesses,
and to punish persons who disobey such summons, this right
being necessary to the proper exercise of their powers of legis-
lation, and the contro' assigned to them in respect of the admin-
istration of public affairs. And a Provincial (Q.) Act (35 V. c. 5>
regulating this right was held valid."
SECTION 72 Fixes (subject to change by the (Que-
bec Legislature) the number of Legislative Councillors at
24 (one for each electoral division set out in Schedule A
to Con. St. Can., c. 1). each to be appointed by the
Lieutenant-Governor in the (Queen's name by Patent of
Quebec.
There has been no change yet made under this section.
SECTIOX 73 Enacts that the qualifications of Que-
bec Legislative Councillors shall be the same as the (luali-
fications of Quebec Senators.
See section 23.
SECTIOX 74 Applies the law as to vacancies in the
place of a (^lebec Senator to vacancies in the place of
(^lebec Legislative Councillors.
See sections 23 and 31.
SECTIOX 75 Empowers the Lieutenant-Governor
in the Queen's name to fill bv Patent the vacancies
occurring under section 74.
SECTION 76 Empowers the Quebec Legislative
Council to decide questions respecting the qualification of
a Quebec Legislative Councillor, or a vacancy in the Que-
bec Legislative Council.
* Ex parte Dansereau, 19 L. C. Jur. 210 (1875).
96 CANADIAN CONSTITUTIONAL LAW.
SECTION 77 Empowers the Quebec Lieutenant-
Governor to appoint by Patent a member of the Quebec
Legislative Council to be Speaker thereof.
SECTIOX 78 Fixes the quorum of the Quebec
Legislative Council (subject to change by the Quebec
Legislature) at ten members, including the Speaker.
SECTION 79 Declares that voting in the Quebec
Legislative Council shall be decided by majority \ote, —
the Speaker always voting — and in case of an equality in
the voices, the question is to be deemed negatived.
See § 36.
SECTION 80 Enacts that the Quebec Legislative
Assembly shall have 65 members, one for each of the dis-
tricts referred to in section 40 of the B. N. A. Act, sub-
ject to change by the Quebec Legislature, But no change
in those electoral districts set out in Schedule 11. to the
B. N. A. Act (1807) is to be made unless the Bill for that
purpose has been first y)reseuted to the Quebec Lieutenant-
Governor, has passed its second and third readings in the
Legislative Assembly with the concurrence of the majority
of the representatives of all those electoral districts, and
such fact is shown to the Lieutenant-Governor in an
address.
The 65 districts were those set out in Con. St. of L. C. c. 75,
and 23 V. c. 1.
The inenibership of the Quebec Legislature has been changed.
It is now 72.°
Schedule 2 fixed the limits of 12 districts, but they have been
changed as above.
3. Sections 81 to 87, inclusive, affect both Ontario
and Quebec.
SECTION 81 Provided for the calling together of
the Ontario and Quebec Legislatures not later than six
months after the L^nion.
• 53 V. c. 3 (Q.).
SECTION EIGHTY-ONE. 97
This section has been repealed cs spent by the Statute Law
Revision Act of 1893.'"
SECTIOX 82 Empowers the Lieutenant-Governors of
Ontario and (Jnebec to summon in the Queen's name, by
In.strunient under the Provincial (Jrcat Seal, the Prov-
incial Legislatures.
SECTIOX 83 Disqualifies Ontario and Quebec
office holders from sitting in the legislatures of Ontario
and Quebec, unless these legislatures otherwise provide.
An exception is made in favour of Cabinet ^finisters.
See R. S. O. 1897, c. 12, sections 6 to 17, and 62 V. (1) c. 4, § 20,
(1899); as to Ontario.
See R. S. Q. articles 136 to "144, as to Quebec.
SECTIOX 84 Continues, until altered by the On-
tario or (Quebec Leirislatures, the existing Ontario and
Quebec Election Laws; and establishes manhood franchise
in Algoma.
See as to Ontario, R. S. 0. 1897, c. 9 and 11; 60 V. c. 4; 62 V.
(1) c. 4, and 62 V. (2) c. 5.
The Crown's prerogative cannot be taken away except by
express words, but where a Legislature (Q.) passes an Act (The
Quebec Controverted Elections Act of 1875), providing such judg-
ment shall not be susceptible of appeal, held that the intention
was to make such decision final; and though the Crown had not
been mentio.ied in such Act, yet the Crown was a party to it,
having assented to it, and therefore the prerogative right to
admit an appeal was taken away.'
SECTIOX 85 Fixes the duration of the Ontario and
Quebec Legislatures at four years from the return of the
writs for choosing the same, subject to being sooner di;?-
solved by the Lieutenant-Governor.
R S. O. (1897), c. 12, § 3, fixes this time as four years from the
55th day after the date of the writs for the elections.
'» 56 V. c. 14 (Imp.).
' Theberge v. Landry, 2 A. C. 102 (1876).
H.C.H. — 7
98 CANADIAN CONSTirUI'lONAL LAW.
SECTION 80 Provides for a yearly session of tho
Ontario and Quebec Leiiislatures, caeli session to begin
within twelve months from the end of preceding session.
This section is re-enacted by R S. O (1897), c. 12, § 4, as to
Ontario.
SECTION 87 Extends to the Ontario and Quebec
Legislatures tho following provisions of the B. N. A. Act
governing the Canadian House of Commons, i.e., as to
election of Speaker, and vacancies in the Speaker's office,
his duties, his absence, quorum, and mode of voting.
See B. N. A. Act §§ 44-49 inclusive, and R. S. 0. 1897, c. 12,
§§ 38-44, 65 and 66.
4. Section 88 affects Nova Scotia and New Brunswick.
SECTION 88 Continues the constitution of the
legislatures of Nova Scotia and New Brunswick as at
the passing of, but subject to, the B. N. A. Act, until
altered by the B. N. A. Act, and this section also continued
until dissolved or spent the existing New Brunswick House
of Assembly.
The latter part of this section has been repealed as spent, by
the Statute Law Revision Act."
5. Section 89 affects Ontario, Quebec and Nova
Scotia.
SECTION 89 Regulated the first Ontario, Quebec,
and Nova Scotia elections.
This section has been repealed as spent by the Statute
Revision Act.°
6. Section 90 affects the four Provinces.
SECTION 90 Applies to the legislatures of the
several Provinces certain provisions of the B. N. A. Act
respecting the Canadian Parliament, with changes of " the
' 56 V. c. 14 (Imp.), 1893.
• Ibid.
SECTION NINETY. • 99
Provincial Lieutenant-Governor " for " the Governor-
General," of " the Governor-General " for " the Queen,"
and for " a Secretary of State," of " 1 year " for " 2 years,"
and of ** the Province " for " Canada." The foHowing are
the provisions: Those relatinij to appropriation and tax
bills, the reeonnnendation of money votes, the assent to
bills, the disaUowance of Acts, and the signification of
pleasure on bills resen'ed.
The law respecting these provisions Is contained In sections
53, 54, 55, 56 and 57 of the B. N. A. Act (1867).
Part VI. is entitled Distribution of Legislative Poav-
ers, and consists of sections 91 to 95, inclusive. The first
three of these sections are among the most important in the
statute, and as their language has frequently aifected their
interpretation, they are hero copied from the enactment.
The sub-title of section 91 is " Powers of the Parlia-
ment," and that of section 92 is " Exclusive Powers of
Provincial Legislatures."
Section 91, which determines the legislative authority of the
Canadian Parliament, and section 92 which determines the legis-
lative authority of the Provincial Legislatures, empower both of
these bodies, in some particular Instances, to legislate upon
similar subjects.* Apart from this power to legislate con-
currently, there is no conflict of jurisdiction although the same
words conferring legislative powers are found in both sections."
The principles applied by the Courts in determining within
which jurisdiction » a questioned enactment falls may be sum-
marized in the following Rule:
If the questioned enactment fall within any of the narticular
subjects assigned exclusively by section 92 to the Provincial
Legislatures, and also in addition either does not fall within any
of the enumerated classes of subjects set out in section 91, or,
falling within any of such last mentioned classes, the power of
* Compare section 91, sub-section 92, with section 92, sub-
section 13, and see also Fredericton v. The Queen, 3 S. C. R. 505.
"Bank of Toronto v. Lambo, 12 A. C. 575, at p. 585; R. v.
Robertson, 6 S. C. R. 52; Leprohon v. City of Ottawa, 2 A. R. 522.
•Dominion or Provincial.
100 CANADIAN CONSTITUTIONAL LAW.
the Provincial Legislature Is not thereby overbourne,' then the
Provincial Legislature has Jurisdiction, but in all other matters
within ooion'f.l competence," the enactment is within the juris-
diction of the Dominion Parliament."
IXTUODrCTOKV CLAUSE.
SEf'TTOX {)1. " It shall be lawful for tlie Quocn, l>y
nnd with the Advice and Consent (»f the Senate and IIousg
of Commons, to make Laws for the Peace, Order and
Good (lovernment of Canada, in relation to all nuittcrs
not coming within the Classes of Subjects hy this Act
assigned exclusively to the ]..efiislatures of the Provinces;
and for greater certainty, but not so as to restrict the
Generality of the foregoing Terms of this Section, it is
hereby declared that (notwithstanding anything in this
Act) the exclusive Legislative Authority of the Parliament
of Canada extends to all ^Fatters coming within the Classes
of Subjects next hereinafter enumerated, that is to say:"
The following general principles have been onunclated
respecting these sections and the B. N. A. Act generally.
See the closing clarse of this section (Note 2)
See the Introductory clause of § 92 (Notes 4 and 6).
1. Laws designed for the promotion of public order, safety
or morals, are of a nature which fall within the general authority
of Parliament " to make laws for the order and good government
of Canada." '• i'
2. A questioned enactment Is always presumed to be inira
t'ireis.'
3. Sections 91 and 92 must be read together, and the one
interpreted and, where necessary, modified by the other.'
'Doble V. The Temporalities Board, 7 A. C. 136 (1882).
" " In so far as it is not repugnant to Imperial legislation."
The Farewell. 7 Q. L. R. 380 (1881); McLeod v. A.-G. of N. S. "W.
(1891) A. C. 455; R. v. Plowman, 25 O. R. 656 (1895).
"Citizens and Queen Ins. Companies v. Parsons, 7 A. C. 96,
at p. 109 (1881).
"Russell V. R., 7 A. C. 829, at p. 839 (1882).
'Valin V. Langlols, 5 A. C. 115 at p. 118 (1879).
'Citizens v. Parsons, 7 A. C. 96 at p. 109 (1881); Russell v.
The Queen, 7 A. C. 829 at p. 839 (1882).
SECTION NINETY-ONE, (INTUODUCTOUY) 101
4. To Interpret the various sub-sections, other parts of the
Act, and of other Imperial Acts in iiari materia may be examined *
5. The true nature of the legislation in issue should be ascer-
tained to determine to what claas the enactment belongs.*
6. Sultjects vvliich in one aspect antl for one purpose fall
within section 92, may for another aspect and another purpose
fall within section 91/
7. A legislative power falling within one section (and the
Jurisdiction of one legislature) shall not be denied an existence
because by some posHibilitv it niuy lie abusril, or limit the range
which otherwise would be open to the other legislature."
y. But where Dominion legiHlation strictly relating to huI)-
jects within section 91 trenches upon maters assigned to the Pro-
vincial Legislature, the Dominion legislation is of paramount
authority,'
9. The Dominion and the Provincial Parliaments possess
plenary powers ot legislation within their spheres.'
10. In all questions of «//»« ntvs the enactment in Question
should not be interpreted any more than is necessary for the
decision of the particular anestion in issue.^
11. When the proper construction of the language of the Act
is doubtful, the. construction put upon it by a legislative authority
in its actual legislation may be considered.'"
12. The state of things existing In the Confederated Pro-
vinces at the time of Confederation, and more particularly that
which was recognized as law in all or most of the Provinces is a
useful guide in interpreting the meaning attached by the Imperial
Parliament to indefinite expressions in the B. N. A. Act.'
■'• Citizens v. Parsons, 7 A. C. 96 at p. Ill (1881), where an Im-
perial Act (14 Geo. III., c. 83, % 8), The Quebec Act, is examined
for this purpose.
♦Hodg. V. R., 9 A. C. 117 at p. 130 (1883); Russell v. R., 7 A.
C. 829, at p. 837 (1882).
" Hodge v. R., 9 A. C. 117, at p. 130 (1883).
' Bank of Toronto v. Lambe, 12 A. C. 575 at p. 587 (1887).
' Tennant v. Union Bank (1894), A. C. 31.
* Bennett v. Pharmaceutical Association of Quebec. 1 Dor. Q.
A. 336 (1881); Hodge y R., 46 U. C. Q. B. 141, at p. 150.
"Hodge V. R., 9 i^. C. 117, at p. 128; same case reported in 46
U. C. Q. B. 141, at pp. 151-2; Citizens v. Parsons, 7 A. C. 96 (1881).
'» Citizens v. Parsons, 7 A. C. 96 at p. 116 (1881).
'Three Rivers v. Suite, 5 Leg. N. (Q.), 330 (1882).
102 CANADIAN CONSTITUTIONAL LAW.
13. The literal meaning of the words in section 91 will be
restricted to afford scope for powers exclusively given to the
Provincial Legislatures.''
14. Declarations of the Dominion Parliament are not con-
clusive upon the construction of the B. N. A. Act/ but will be
heeded.
15. A Provincial (Q.) enactment (38 V. c. 12, § 5), purporting
to declare exigible on execution the salaries of Dominion Govern-
ment employees, concerns public order within this clause, and
infringes on the rights of the Dominion Parliament, and is
Invalid.*
16. The clauses of a Provincial (Q.) Statute (39 V. c. 7), im-
posing a stamp duty on policies of insurance are not authorized
by sub-section 2 of § 92, nor do they relate to any matters coming
within the classes of subjects assigned exclusively to the Provin-
cial legislatures, and consequently infringe upon the rights of
the Dominion Parliament under this clause, and are invalid.'
17. A Dominion enactment (37 V. c. 10) imposing new duties
on existing Provincial Courts, and giving them powers as to
matters coming within the classes of subjects over which the
Dominion Parliament has jurisdiction is not legislation respect-
ing the constitution, maintenance and organization of I rovin-
cial Courts within sub-section 14 of § 92, but is within the rights
of the Dominion Parliament under this clause, and is intra rircK*
In other words the Dominion Parliament may take advantage
of the existence of any body within a Province to impose duties
UDon it.
18. A Dominion enactment (41 V. c. 16, § 99), prohibiting
traffic in intoxicating liquors, except under certain conditions, in
any county or city whose inhabitants talte specified steps for the
adoption of such act, does not come within any of the matters
assigned exclusively to the Provincial Legislatures by any of the
- Bank of Toronto v. Lambe, 12 A. C. 575 at p. 586 (1887).
» Citizens v. Parsons, 7 A. C. at p. 116 (1881. See also Note 11
tinder this clause. See also 8 92, section 2, Note 12, where an
express declaration in a Provincial Statute was followed in con-
struing it.
* Evans v. Hudon, 22 L. C. J. 268 (1877).
" Attorney-General for Quebec v. Queen Ins. Co., 3 A. C.
1090, T1878); Attorney-General for Quebec v. Reed, 10 A. C. 141
(1883); Plummer Waggon Co. v. Wilson, 3 Man. L. R, 68 (1886);
Dulmage v. Douglas, 4 Man. L. R. 495 (1887).
• Valin v. Langlois, 5 A. C 115 (1879).
SECTION NINETY-ONE, INTRODUCTOUY CLAUSE. 103
sub-sections (and particularly by sub-aections 9, 13, 15 or 16), of
§ 92, and consequently is by this clause within the rights of the
Dominion Parliament, and is intra vi)r».'
19. An Act (34 V. c. 2) of a Provincial (Q.) Legislature
purporting to repeal those sections of the Temperance Act of the
old Parliament of Canada of 1864, respecting the prohibition of
the sale of intoxicating liquors is not within the powers of the
Provincial Legislature within sub-sections 8, 9, 13 or 16 of § 92,
but is within the right of the Dominion Parliament within this
general residuary introductory clause, and is ultra rirfs of the
Provincial Legislature.'
This decision must yUihl to the decisions considered under
note 23, i»t/V«, in so far as it is inconsistent with those decisions.
20. A Dominioti Act (;U V. c. 76), providing for tlie taking in
the Provincial Courts, of evidence to be used in actions pending
in a foreign court does not infringe upon the powers of the
Provincial Legislature under subsections 13, 14 or 16, of § 92, but
falls within this clause and is intra rircn."
21. The general power of legislation conferred on the
Dominion Parliament by this sub-section in addition to the
enumerated powers of such Parliament must be strictly confined
to such matters as are unquestionably of national interest and
importance, and must not trench on any subject.-} enumerated in
S 92 as within Provincial legislative scope, unless they have
attained such dimensions as to affect the body politic of the
Dominion.*"
22. Dominion enactments, when competent, override but
cannot directly repeal Provincial legislation. Whether in a
particular instance such Dominion Acts have or have not been
repealed by repugnancy is a question for adjudication by the
tribunals and cannot be determined by either the Dominion
Parliament or the Provincial Legislature.'
23. The Canada Temperance Act of 1886 so far as it pur-
ported to repeal (he prohibitory clauses of the Act of the old
Province of Ccnada (27 & 28 V. c. 18, 1864), is ultra rires of the
Dominion Parlifi.ment, but its own enacting (as distinguished from
repealing) provisions are valid when duly brought Into operation
' Russell V. R., 7 A. C. 829 (1882).
» Griffith V. Rioux, 6 Q. L. News, 211 (1883).
• Re Wetherell and .Tones, 4 O. R. 713 (1883).
'"Attorney-General of Ontario v. Attorney-General for the
Dominion (1896), A. C. 348.
' Ibid.
104 CANADIAN CONSTITUTIONAL LAW.
In any provincial area, the same being legislation respecting ihe
peace, order and good government of Canada, within this clause,
but is not legislation respecting trade and commerce (8 91, sub-
section 2).-
See note 19, supra.
The rights of the Dominion and of the Provinces respecting
legislation affecting spirituors, fermented and other intoxicating
liquors are as follows: —
(o) The Provinces can impose reasonable conditions on
licensees in the nature of a regulation. (Hodge v. The Queen).
(It) The Provinces can compel a brewer to take out a license
to sell liquor wholesale in tha Province — the same coming under
the B. N. A. Act, § 92, sub-sections 2 and 9. (Brewers' and Mait-
sters' Association v. Attorney-General for Ontario, 1897 I A.C. |
231).
(c) The Provinces cannot abolish the sources from which the
revenue is to be raised. (Attorney-General of Ontario v.
Attorney-General for the Dominion, 1896 I A.C.I 348, at p. 364).
(d) The Provinces can prohibit retail transactions and
restrict the consumption of liquor within the ambit of the
Province, so long as they do not affect transactions in liquor
between persons in the Province and persons in other Provinces
or in foreign countries, as being legislation affecting property
and civil rights in the Province, and also so long as Dominion
legislation does not supersede such prohibition (IWd, at p. 364).
(r) The Dominion Parliament cannot imperatively enact a
prohibitory law adapted and confined to the requirements of
localities within the Province where Prohibition was urgently
needed. (Jbiil, at p. 365).
(f) The old Temperance Act of 1864 was nassed for Unner
Canada (now Ontario), and being confined to that Province is the
same as Provincial legislation, and could not have been enacted
iiy the Dominion Parliament, Imt only by the Provincial Legis-
lature. Neither the Dominion Parliament nor the Provincial
Legislature can validly repeal legislation they cannot enact,
hence the Temperance Act of 1864 could be repealed only by the
Provincial Legislature. (It is for this reason, particularly, that
the statute considered in this note |23| was held ultra rbivx of
the Dominion Parliament.) (ihiil, at p. 367).
({/) But if the Dominion Parliament passed an Act (within its
powers) inconsistent with the Act of 1864, the Act of 1864 would
yield, to the extent of the Inconsistency, to the Dominion legis-
* IbM.
SECTION NINETY-OXE, INTRODUCTORY CLAUSE. 105
tion, and remain in abeyance until the Dominion legislation is
properly repealed, {ihid, at p. 367).
(h) The Provinces can prohibit the manufacture of liquor in
a Province if such manufacture were carried on in such a way
as to make its prohibition a local matter within the Province.
(Ihid).
(i) The Provincial Legislatures cannot prohibit the importa-
iton of liquors into the Province, {ihid).
24. The provisions in a Provincial (Q.) Act (38 V. c 64),
repealing an Act of the Parliament of old Canada (22 V. c. 66),
which created a corporation (the Board for the Management of
the Temporalities Fund of the Presbyterian Church of Canada in
connection with the Church of Scotland), to exist in Ontario and
Quebec, are not legislation respecting any subject over whir?h
the Provinces have, by § 92 (sub-sections 7. 11 or 13, or any other
sub-section), jurisdiction, and consequently such provisions are
ultra vires even though accompanied by concurrent legislation on
the part of the other Province interested."
In other words where a business extends „to two Provinces,
legislation affecting it must emanate from the Dominion Parlia-
ment—concurrent legislation by the two interested Provinces Is
not sufficient.
25. A Dominion Statute (The Electoral Franchise Act)
relating to the duties of a Revising Officer in connection with the
election of members to serve in the Dominion Parliament, does
not interfere with the right of the Province respecting property
and civil rights in the Province (§ 92, sub-section 13), and is valid
under this clause.*
26. Where plenary powers of legislation exist (as in Canada)
they may be exercised either absolutely or conditionally (i.e.,
by leaving details to the discretion of some external authority).^
27. The Colonial Legislatures are not delegates of the Im-
perial Parliament. They are restricted in the area of their
powers, but within that area they are unrestricted. They also
have plenary powers.**
28. A Dominion Act (34-35 V. c. 28) authorizing the Dominion
Parliament to provide for the administraMon, peace, order and
"Dobie v. The Temporalities Board, 7 A. C. 136 (1882).
* Re North Perth, Hessin v. Lloyd, 21 O. R. 538 (1892). not
following Re Simmons and Dalton, 12 O. R. 505 (1886).
" R. v. Burah, 3 A. C. 889 (1878).
• Powell V. Apollo Candle Co.'y. Ltd., 10 A. C. 282 (1885).
106 CANADIAN CONSTITUTIONAL LAW.
good government in any territory (not included in any Province),
vests in tliat Parliament the utmost discretion for the attainment
of those objects, and a statute of the Dominion Parliament (43 V.
c, 25) providing therefor is valid.'
SUB-SECTIOX ]. The Public Debt and Property.
SUB-SECTION 2. Tlie Regulation of Trade and
Commerce.
See § 91, introductory clause, Notes 19 and 23.
See § 91, sub-section 3, Note 3.
See § 91, sub-section 8, Notes 2 and 10.
See § 92, introductory clause. Note 8.
See § 92, sub-section 8, Note 15.
See § 92, sub-section 9, Notes 5, 8, 14 and 15.
See § 92, sub-section 13, Notes 4, 6 and 16.
1. This sub-section does not extend to the regulation of the
contracts of a particular business in a single Province."
2. And this sub-section does not prevent a Provincial Legis-
lature from levying taxes on commercial corporations created by
the Dominion Parliament."
3. And this is so whether the institution is incorporated by
Imperial, Dominion, Provincial, Colonial or Foreign authority."*
4. Nor does the fact of such company having obtained a
license from a Dominion officer (the Minister of Finance) before
being allowed to carry on business in the Dominion (such a
course being required by a Dominion statute 38 V. c. 20), serve
to withdraw the company from the operation of the Provincial
Act.'
5. A Provincial (O.) Act (33 V. c. 19) to the effect that all
rights of suit should pass to the consignee or endorsee of a bill
of lading, and that such an instrument representing the goods
shipped, should, in favour of a holder (or value, be conclusive
' Kiel V. R., 10 A. C. 675 (1885).
' Citizens v. Parsons, 7 A. C. 96 (1881), but see however § 92,
sub-section 11, Note 4.
"Billington v. Provincial Insurance Co., 3 S. C. R. 182 (1879);
Dear v. Western Assurance Company, 41 U. C. Q. B. 553 (1877);
Bank of Toronto v. Lambe, 12 A. C. 575 (1887).
'"Citizens v. Parsons, 7 A. C. 96 (1881).
' Ibid. See § 91, sub-section 2, Note 11.
SECTION NINETY-ONE, SUB-SECTION TWO. 107
evidence of shipment as against the consignor, does not interfere
with trade and commerce under this sub-section and is valid.-
6. A Provincial (Q.) Act (Art. 1086 of Municipal Code), pur-
porting to repeal those sections of the Temperance Act of the old
Province of Canada (27-28 V. c. 18, 1864), which conferred on
Municipal Councils the power to pass by-laws prohibiting the
sale of intoxicating liquors, invades the right of the Dominion
Parliament to legislate respecting trade and commerce, and is
invalid.^
This decision must yield to the decisions considered under
Note 19 to the introductory clause of this §, in so far as it is In-
consistent with those decisions.
7. A Dominion Act (32-33 V. c. 16, the Insolvent Act of
Canada) empowering an offlcial assignee or his agent to auction
the bankrupt's goods without taking out a license and paying a
tax on the sum realized from the sale, as required by a Provin-
cial (Q.) Statute (34 V. c 2), is within the power of the Dominion
Parliament under this sub-section, rather than under § 91, sub-
section 21, and the Provincial Act is invalid to the extent to
which it conflicts with such Dominion enactment.*
8. Legislation respecting trade and commerce must neces-
sarily affect to some extent property and civil rights, over which
the Provincial Legislatures have (S 92, sub-section 13), juris-
diction.'
9. The right to regulate trade and commerce is not to be
overridden by any local legislation in reference to any subject
ever which power is given to the Local Legislature, and in such
a case the law of the Local Legislature must yield to that of the
Dominion Parliament."
10. A Dominion statute (The Canada Temperance Act of
1878) for the general regulation of the traffic in intoxicating
liquors throughout the Dominion is not an Act within property
and civil rights, under sub-section 12 of § 92, but it may be for
the regulation of trade and commerce.'
' Beard v. Steele, 34 U. C. Q. B. 43 (1873).
"Hart V. Missisquoi, 3 Q. L. R. 170 (1876); Covey v. Brome, 21
L. C. J. 182 (1877).
* Cote v. Watson, 3 Q. L. R. 157 (1877).
" Smith v. Merchants Bank, 25 Gr. Chy. 129 (1881).
«Fredericton v. R., 3 S. C. R. 505, at p. 540 (1882); Blouin v.
Quebec, 7 Q. L. R. 18 (1880).
'Russell V. R., 7 A. C. 829 (1882); see § 91, introductory clause,
Note 18.
108 CANADIAN CONSTITUTIONAL LAW.
11. Dominion statutes (31 V. c. 48, and 34 V. c 9), providing
tlir.t insurance companies doing business in Canada should make
a deposit with the Finance Minister for Canada for the security
of Canadian policyholders are within the power of the Dominion
Parliament under this sub-section."
12. The sections of a Provincial (Q.) Statute (License Act of
1878), prohibiting, directly or indirectly, the manufacture or saie
of spiritous liquors or other articles of commerce, or conferring
authority for that purpose on Municipal Councils come within
this sub-section and are invalid.^
(The observations following note 6, ,s»/*rr/, apply to this note.)
13. The power of the Dominion Parliament under this sub-
section includ'^s political arrangements in regard to trade and
regulations of trade in matters of inter-provincial concern, and
perhaps general regulations affecting the whole Dominion."'
14. A Provincial (N.B.) Statute (34 V. c. 6), prohibiting the
issue of a liquor license into any municipality where a majority
of the ratepayers petition the Sessions or Municipal Council
against it is legislation respecting trade and commerce, and do€8
not infringe on the rights of the Province to legislate respecting
licenses (S 92, sub-section 9), and is valid.'
15. A municipal by-law authorized by Act of the late Pro-
vince of Canada (27-28 V. c. 18, The Canada Temperance Act),
does not infringe on this sub-section, and such Act continues as
provided by § 129 of the B. N. A. Act.-
SUli-SKCTlOX .'). Tho Jiaising- of Money by any
mode or svsteni of Taxation.
1. The Dominion Parliament is empowered to raise money by
any mode of taxation direct or indirect.''
2. This sub-section does not give the Dominion Parliament
power to make laws regarding direct taxation within a Province
to raise a Provincial revenue '; nor regarding the borrowing of
money on the sole credit of a Province '; nor regarding shop,
" Re Briton Med. & Gen. Life Assurance (Ltd.), 12 O. R. 441
(1886).
» De St. Aubyn v. Lafrance, 8 Q. L. R. 190 (1882).
'° Citizens v. Parsons, 7 A. C. 96 (1881).
' R. V. Justices of King's, 2 Pugs. 525 (1875).
' Noel V. Richmond, 1 Dor. Q. A. 333 (1881).
' Dow V. Black, L. R. 6 P. C. 272, at p. 282 (1875).
* B. N. A. Act, S 92, sub-section 2.
" B. N. A. Act, § 92. sub-section 3.
SECTION NINETY-ONE, SUB-SECTION THUEE. lOU
saloon, tavern, auctioneer and o^.her licenses, to raise a
Provincial revenue," in such cases the power of the Province is
not overbourne by this sub-section.'
3. The formation of a revenue by taxation is under the
exclusive control of the Parliament of Canada, by this sub-
section, and § 91, sub-section 2.'"
4. The right of tlie Dominion Parliament to raise money by
any mode or system of taxation under this sub-section is ex-
clusive when not coming within the classes of subjects assigned
to the Provincial Legislatures, and as the Provincial Legislatures
are only authorized to raise a revenue by direct taxation, and
the sources of revenue mentioned in § 92 and sections 2, 5, 10
and 15, it follows that the Dominion Parliament has the exclusive
right to raise a revenue by means of indirect taxes, and the
Provincial Legislatures have no such right." A plan to evade this
decision has been discovered and adopted in Manitoba.'"
5. This sub-section while sufficiently large and general to
include direct taxation within the Province in order to the
raising of a revenue for Provincial purposes, assigned by § 92.
sub-section 2, to the Provincial Legislatures, is not intended to
override the particular power of the Provinces as given by that
sub-section.*
SUB-SECTION' 4. The Borrowiuj. of Money on the
Public Credit.
See § 91, sub-section 12, Note 5.
SUB-SECTIOX 5. Postal Service.
SUB-SECTIOX 6. The Census and Statistics.
See § 8 of the B. N. A. Act, where provision is made f o • a
Dominion decennial census.
SUB-SECTION 7. Militia, :Military and Xaval
Service and Defence.
° B. N. A. Act, § 92, sub-section 9.
' See § 91, introductory clause, Note 7.
« Hart v. Missisquol, 3 Q. L. R. 170, at p. 172 (1876).
» Attorney-General of Quebec v. Reed, 10 A. C. 141 (1883). See
judgment of Ritchie, C.J. (8 S. C. R. 408 at p. 416). affirmed in
the Privy Council.
'" See § 92, sub-section 2. Note 12.
' Bank of Toronto v. Lambe, 12 A. C. 575, at p. 585 (1887).
110 CANADIAN CONSTITUTIONAL LAW.
The matters covered by this sub-section are the most im-
portant concerning which the Imperial authorities continue lo
exercise the control over Colonial Legislation.
It has been held' that the Dominion Parliament has ex-
clusive jurisdiction over the matters covered by this subsection.
But the learned Judge who decided this case (Chauveau, J.), did
not hold, as Mr. Clement states' he "apparently did," that the
Imperial Parliament is deprived of jurisdiction to legislate
respecting the Militia and the Navy.* It is submitted that this
exclusive jurisdiction exists as against the Provincal Legis-
latures and not as against the Imperial Parliament; and the judg-
ment of Chauveau, J., is easily capable of this interpretation.
SUB-SECTION 8. 1. The fixing- of and providing
for the salaries and allowances of civil and other officers of
the Government of Canada.
2. A Dominion official doing duty for the Dominion in a
Province is out of the reach of the taxation of that Province.'*
3. And an Imperial official is in the same position.*
4. The Provincial Legislature cannot tax the means by
which the Dominion Government is carried on, nor declare
exigible the salaries of Dominion Government employees.'
5. Their salaries are not " property within the Province "
under § 92, sub-section 13. '
6. (Salaries of government officials are at Common Law
exempt from attachment whether in the Dominion or in the
Province."
By a recent Ontario Statute "" the Common Law has been
altered so as to admit of the attachment, by special process, of the
salaries of Provincial officers).
" Holmes v. Temple, 8 Que. L. R. 351 (1882).
' Law of the Canadian Constitution, 1892, at p. 379.
*See Holmes v. Temple. 8 Quebec L. R. 351 (1882), at p. 353.
" Leprohon v. Ottawa, 2 A. R. 522 (1877-1878).
« IbUl, at p. 531.
' Ibid.
•R. V. McParlane, 7 S. C. R. 216; Gidley v. Lord Palmerston,
3 B. & B. 275 (1822).
'» 61 V. c. 7 (1898).
SECTION NINETY-ONE, SUH-.SECTION EIGHT. Ill
7. The Dominion Government can impose taxes on Provincial
officers.*
SUB-SECTION J). Beacons, buoys, light-houses and
Sable Island.
SUB-SECTION 10. Navigation and Shipping.
See § 91, sub-section 2, Note 4.
See § 92, sub-section 8, Note 16.
See § 92, sub-section 10, Note 8.
See § 92, sub-section 16, Notes 5 and 10.
1. A Provincial Legislature cannot under sub-section 10 of
§ 92, interfere with the requirements of navigation or com-
merce.'
2. The Dominion Parliament can confer on the Vice-
Admiralty Courts jurisdiction in any matter of navigation and
shipping within the territorial limits of the Dominion.^'
3. The Province may incorporate a boom company, but can-
not confer upon the company power to obstruct the navigation
of a tidal and navigable river.'
4. Navigable rivers for the purposes of navigation are under
the control of the Dominion Parliament.''
5. The legislative control of navigable, tidal waters is in the
Dominion Parliament exclusively."
6. The power to legislate respecting navigation conferred on
the Dominion Parliament includes the exclusive right to legislate
so as to authorize an obstruction in a navigable public river
where the tide ebbs and flows.^
7. Taking away the right to navigate from the public is a
matter relating to navigation.*
> B. N. A. Act, § 91, sub-section 3.
= Normand v. St. Lawrence Navigation Co., 5 Q. L. R. 215
(1879).
» The Farewell, 7 Q. L. R. 380 (1881).
* The Queddy River Driving Boom Co. v. Davidson, 10 S. C.
R. 122, overruling McMillan v. S. W, Boom Co., 18 Q. B. 715
(1878).
= Central Vermont Ry. v. Town of St. Johns, 14 S. C. R. 288,
per Fouriner, J., at p. 297 (1887).
• Queddy R. D. B. Co. v. Davidson, 10 S. C. R. 222, at p. 232.
' IMd, at p. 235.
' The judgment of Palmer, J., at 3 Cart., p. 261.
112 CANADIAN CONSTITUTIONAL LAW.
8. Navigation and shipping do not mean tlie river itself. The
river itself is not rnder the control of the Dominion Parliament,
but belongs to the local CiO'vn domains."
9. Where, by a Provincial (N.S.) Act (R. S. N. S. 5 Ser. c. 7),
passed before Confederation, authority Is given to the Crown to
permit an interference with the puLiic rights of navigation, such
authority is exercisable by the (iuvernor- General and not the
Provincial Lieut.-Governor.
10. A Crown grant derogating from the public right of
navigation is void to that extent as interfering with the
authority of the Dominion Parliament respecting navigation and
shipping, and the Provinces cannot legislate such an interference.
11. A Dominion Act (40 V. c. 21) establishing a Maritime
Court with jurisdiction limited as to the Province of Ontario is
within the powers of the Dominion Parliament under this sub-
section."
12. A Dominion Act (R. S. C. 1886, c. 92). respecting works to
be constructed in or over navigable waters is legislation respect-
ing navigation within this sub-section and is valid."
SUB-SECTIOX 11. (^lavantinc and the establisli-
luciit and maintenance of Marino Hospitals.
SUB-SECTION 12. Sea-coast and Inland Fisheries.
1. The expression " Inland Fisheries " confers on the Domin-
ion Parliament no power to take away exclusive rights of fishery
vested in private proprietors of non-navigable rivers.*
2. This sub-section does not confer on the Dominion Parlia-
ment authority to deal with questions of property and civil rights,
such as the ownership of the beds of the rivers, or of the fisheries,
or the rights of individuals therein.^'
"Central Vermont Ry. v. St. Johns, M. L. R. 4 Q. B. 466 at
p. 453, affirmed In Supreme Court of Canada (14 S. C. R. 288) iind
in the Privy Council (14 A. C. 590), (1887).
>" R. v. Fisher, 2 Kx. C. R. 365 (1891).
* Ibid.
■ The Picton, 4 S. C. R. 648 (1879).
' Attorney-General for Canada v. Attorney-General for
Ontario (Fisheries Case), (1898) A. C. 700 at p. 717.
* R. V. Robertson, 6 S. C. R. 52 at p. 134 (1882).
* R. V. Robertson, 6 S. C. R. 52.
SECTION NINE'IV-ONE, SUB-SECTION TWELVE. 113
3. This sub-section confers on the Dominion Parliament a
right to legislate regarding matters of national and general
concern, such as the forbidding of fish to be taken at imuroner
seasons, or in an improper manner, or with destriictve instru-
ments, such general laws being for the benefit of the public at
large as well as of the owner."
4. This sub-section does not empower the Dominion Parlia-
ment to enable its officers to make a lease of a non-navigable
portion of a river passing partly through granted and partly
through ungranted lands.'
5. Whatever proprietary rights vested in the Provinces at
Confederatim remained so unless by express enactment trans-
ferred to Canada. Such transfer is not to he presumed from the
grant of legislative jurisdiction to Canada in respect of the
subject nr.atter of these proprietary rights.
Held, that the transfer by § lOS, sub-section 5 of the schedule
thereto to the Dominion of " rivers and lake improvements "
operates in regard to the improvements only, both of rivers and
lakes and not in regard to the entire rivers.
The transfer of " public harbours " operates on whatever
properly falls within that term, and is not limited to those parts
whereon public works had been execited. The circumstances
of each case must be considered in arriving at the conclusion
whether or not the harbour is public.
Regarding fisheries and fishing rights: —
((/) The Dominion has no proprietary rights therein, but the
Dominion may unlimitedly affect those rights, only it cannot
transfer them.
(h) The Dominion may Impose a tax by way of license as a
condition of the right to fish, by S 91, sub-sections 4 and 12.
(r) The Provinces may also, under § 92, sub-section 2.
((/) The Dominion Act (R. S. C. c. 95, § 4), as far as it em-
powers the grant of exclusive fishing rights over Provincial pro-
perty is ultra vires.
, (e) The Provincial enactment (R. S. O. c. 24, § 47), declaring
that it has been and shall be lawful for the Provincial Lieutenant-
Governor in Council to authorize sales or appropriation of land
covered with water in the harbours, rivers and other navigable
•waters In Ontario, under such conditions as do not interfere with
" R. v. Robertson, 6 S. C. R. 52 (1882).
' Ibid.
H.C H.— 8
114 CANADIAN CONSTITUTIONAL LAW.
the harbour, as such, or with navigation therein, or in any river
or other navigable water, is ultra vires of the Provincial Legisla-
ture, " except in so far as It relates to land in the harbours and
canals," If any of the latter be included in the words " other
navigable waters of Ontario."
(f) The Ontario Act of 1892 for the Protection of Provincial
Fisheries (ff5 V. c. 10), sections 5 to 13 inclusive, and sections 19
to 21 inclusive, as far as they affect fishing regulations and re-
strictions, are ultra pirca of the Provincial Legislature, as Infring-
ing on § 91, sub-section 12.
(a) The Dominion Act respecting works constructed in or
over navigable rivers (R. S. C. 1886, c. 92), is valid, as relating to
navigation.'
SUli-SECTION 13. Forrios between a Province and
any Britisli or Foreign country or between two Provinces.
See § 92, sub-section 2, Note 14.
See § 92, sub-section 16, Note 7.
1. A Provincial (Q.) Act (39 V. c. 52) conferring on munici-
palities the right to tax ferrymen avid ferries does not interfere
with the authority of the Dominion Parliament under this sub-
section.'
2. A ferry between two points in a Province is under the
control of the Provincial Legislature.'"
SUBSECTION 14. Currency and coinage.
R. S. C. (1886) c. 30, contains the Canadian legislation on this
subject.
SUB-SFCTIOX 15. Banking, Incorporation of
Banks and the Issue of Paper Money,
See § 91, sub-section 21, Notes 15 and 16.
1. This sub-section does rot deprive a Provincial Legislature
of the power of Imposing a tax on banks carrying on business
' Attorney-General for the Dominion of Canada v. Attorneys-
General for the Provinces of Ontario, Quebec and Nova Scotia,
(1898) A. C. 700.
» Longueuil Navigation Co.'y v. Montreal, 15 S. C. R. 566 (1888).
'"Dumer v. Humberstone, 26 S. C. R. 266 (1896); § 92. sub-
section 10 (a)
SECTION NINETY-ONE, SUH SECTION FIFTEEN. 115
within the Province, such a tax being direct taxation within sub-
section 2 of li 92.'
2. The power of the Dominion Parliament to make Inws on
the subject of banking does not interfere with the power of the
Provincial Legislature to make banks contribute to the public
objects of the Province where they carry on business."
3. No lands nor property belonging to the Dominion of
Canada can be taxed."
4. But notes which the Dominion Government have exchanged
for gold and other things do not belong to the Dominion of
Canada.*
5. Hence this sub-section does not prevent a Provincial
Legislature enacting a law imposing a tax on the Dominion notes
held by a bank as a portion of Its cash reserve."
6. Legislation upon banking must necessarily affect to some
extent property and civil rights over which ::ubjects the Provin-
cial Legislatures have by § 92, sub-section 13, control.
7. A Dominion Act (34 V. c. 5, § 46), authorizing the transfei*
of warehouse receipts to banks by direct endorsement is within
the powers of the Dominion Parliament.'
8. Under this sub-section the Dominion Parliament can legis-
late over ev<^ry transaction within the legitimate business of a
banker, though the exercise of this power may Interfere with
property and civil rights in a Province (§ 92, sub-section 13), and
give the bank lending privileges unrecognized by the Provincial
law; and the Bank Act of Canada Is intra vires of the Dam-nlon
Parliament."
9. A Dominion Act (53 V. c. 31, 1890), (The Bank Act), author-
izing a bank to take warehouse receipts as security In the course
of banking Is intra rirea of the Dominion Parliament within this
sub-section."
' Bank of Toronto v. Lambe, 12 A. C. 575 (1887).
» Ibid, at p. 586.
•B. N. A. Act, § 125.
* Bank v. Supervisors, 7 Wallace, 26 (1868).
'' Town of Windsor v. Ccmmerclal Bank of Windsor, 3 R. &
G. 420 (1882).
• Smith V. Merchants Bank. 28 Gr. 629 (1881)
' Smith v. Merchants Bank, 28 Gr. 629 (1881).
"Tennant v. Union Bank (1894), A. C. 31.
'Ibid.
116 CANADIAN CONSTITUTIONAL LAW.
!SUB-yECT10x\ 10. Savings liaiiks.
SL'B-SECTI.Oi\ IT. AVcifthts and Mcasnros.
SUli-SLl'TlOX 18. Bills of Kxchange and Pro-
niisooi'v A'otes.
The'Dominion Statute, 53 V. c. 33 (1890), and its amendments,
codify the law on this subject.
SUB-SECTI0:N 19. Inteivst.
See § 92, sub-section 16, Note 5.
1. An Act (The Municipal Act) of a Provincial (Man.) Legis-
lature, to the effect that an additional rate or percentage should
be added to taxes after date of payment does not infringe on
the right given to the Dominion Parliament by this sub-section,
the same not being interest but a penalty for the enforcing of a
Provincial law under sub-section 18 of § 92, respecting municipal
institutions in the Province.""
2. The interest which the Dominion Parliament was intended
to deal with is that in connection with debts originating in
contract.'
3. The right of the Dominion Parliament under this sub-
&ection is not intended to conflict with that of the Provincial
Legislatures in matters of assessment or taxation respecting
municipal institutions (under § 92, sub-section 8), either in the
manner or extent to which the Provincial Legislatures should
authorize such assessment to be made.'
4. General legislation respecting interest is all that is by this
sub-section reserved to th : Dominion Parliament."
SrP>-SE(:*TIOX 20. lo^il Tender.
SUB-SECTIOX 21 . Eankruptcy and Insolvency.
See § 91, sub-section 2, Note 7.
See § 92, sub-section 13, Notes 8, 9, 13, 14, 15, 16.
See § 92, sub-section 15, Note 6.
See § 92, sub-section 16, Note 6.
"•Lynch v. Canada N. W. Land Co., S. Dufferin v. Morden,
Gibbins v. Barber, 19 S. C. R, 204 (1892) overruling Ross v.
Torrance, 2 L. N. 186.
■ iwa.
» Royal Can. Ins. Co. v. Montreal Warehousing Co., 3 Q. L. N.
l.-iB (1880).
SECTION NINETY-ONK, .SUH-SKC I'lON TWKNTY-ONE. 117
1 The Dcminlon Parliisment in legislating on Bankruptcy
and Insolvency may interfere with property and civil rights (S 92,
sub-section 13), and procedure in the Provinces (S 92, sub-sectlou
14), so far as a general law on these subjects might affect them.'
2. Quare, If a Provincial Act may not take a particular asso-
ciation out of the operation of a general bankruptcy law passed
by the Dominion Parliament."
3. A Provincial (N.B.) Act (Act of March 23, 1868), amending
c. 124, Title 34 of Rev. Stat, re Insolvent Confined Debtors), pro-
viding for the examination of a debtor before a Judge, and
authorizing the Judge to grant the debtor a discharge from gaol
or confinement on proof of inability to pay his debts and absence
of fraud, was held to be an insolvent Act, and to infringe on the
rights of the Dominion Parliament under this sub-section, and
was consequently held to be invalid." On this decision much
doubt has been cast,' and the probability is that the decision in
this case must be modified so as to accord with the rule laid down
in Clarkson v. Ontario Bank."
4. A Provincial (N.B.) enactment (30 V. c 28), passed prior to
the Union, extending gaol limits, and to come in force on a date
after the Union, was repealed by an Act (31 V. c. 29) of the same
Province (N.B.) before it came in force, but after the Union. Held,
that the repealing Act was not insolvency legislation and was
intra vires of the Provincial Legislature as being legislation affect-
ing property and civil rights (§ 92, sub-section 13)."'
5. A Pi-ovincial (N.B.) Act (37 V. c. 7) abolishing imprison-
ment for debt is not insolvency legislation as respects a person
not a tra.ler or subject to the Dominion Insolvent Act, the same
probably coming within S 92, sub-section 14, and is intio rircs of
the Provincial Legislature.'"
6. A Dominion enactment (32-33 V. c. 15, S 89, The Insolvent
Act), abolishing priority of executions in a case where
an assignment for the benefit of creditors had been made, or
where the debtor's estate had been placed in liquidation, is
Pushing V. Dupuy, 5 A. C. 409 (1880); Peek v. Shields, 6 A.
R. 639 (1881).
» L'Union St. Jacques de Montreal v. Bellsle, L. R. 6 P. C. 31
(1874).
" R. V. Chandler, 1 Han. 556 (1868).
'Clarkson v. Ontario Bank, 15 A. R. 166, at pp. 201-202 (1888).
" See Note 13 to sub-section 13 of § 92.
"McAlmon v. Pine. 2 Pugs. 44 (1874).
".Armstrong v. McCutcheon, 2 Pugs, 381 (1874).
118 CANADIAN CONSTITUTIONAL LAW,
within tlie authority of the Dominion Parliament under this sub-
section, even though it interferes with the right of the Provinces
to legislate regarding property and civil rights (§ 92, sub-
section 13).'
7. Such an Act (Dominion) must necessarily conflict with
previously existing legal rights, and insolvency is a subject over
which the Dominion Parliament has exclusive jurisdiction, even
to the extent of overruling Provincial enactments on the same
subject."
Respecting this subject, the law seems to be that so long
as, and in so far as, the Dominion Parliament fails to legislate
regarding bankruptcy pnd insolvency, the Provincial Legislatures
have this concurrent right; but the legislation of the Dominion
Parliament, on this subject, so far as it goes supersedes the
legislation of a Province.
8. A provision in such Act (Dominion) empowering a County
Court Judge to dispose of claims by petition is within the power
of the Dominion Parliament to enact."
9. A provision in a Provincial (P.E.I.) Indigent Debtors Act
39 V. c. 9), providing for the discharge of an insolvent debtor
infringes on the rights of the Dominion Parliament under this
sub-section and is invalid.*
10. The provisions of a Provincial (N.S.) Act (37 V. c. 104) to
facilitate arrangements with a railway's company's other creditors
by empowering a Court under certain circumstances to restrain an
action against the debtors, is insolvency legislation within this
sub-section, and such provisions are invalid.^
Mr. Clement in his work on The Law of the Canadian Consti-
tution (1892) p. 400, considers this decision overruled by the deci-
sion In re Windsor & Ann. Ry., 4 Rus. & Gel. 312 (1883), noted in
§ 92, sub-section 13, Note 15. See that reference, where for the
reasons there stated it is submitted this judgment is still a binding
authority.
11. A Dominion enactment (42 V. c. 48) assuming to provide
for the liquidation of all building societies in a province, whether
1 Kinney v. Dudman, 2 Rus. & Chel. 19 (1876). See Note 13 to
sub-section 13 of § 92, post.
' Crombie v. Jackson, 34 U. C. Q. B. 575 (1874).
' Munn V. McCannell, 2 P. E. L R. 148 (1877).
" Murdock v. Windsor & Annapolis Ry. Co. (Russ. Eq. R. 137),
1877.
SECTION NINETY-ONE, SUB-SECTION TWENTY-ONE. 119
solvent or net, invades the powers of the Provincial Legislatures
under sub-section 13 of § 92, and is ultra viica of the Dominion
Parliament."
12. A provision in a Dominion Act (40 V. c 41, § 28), enacting
that the judgment of the Court of Appeal in matters of insol-
vency should be final is within this sub-section, and is not within
sub-sections 13 and 14 of § 92, and such provision is valid.'
13. The Dominion Parliament can, under this sub-section pro-
vide for the compulsory liquidation or winding up of a company
by a Provincial Legislature.^
14. And also of a comppny incorporated by an Imperial Act."
15. A provision in the Dominion Winding-up Act (R. S. C.
1886, c. 129), extending that Act to incorporated trading com-
panies, wheresoever incorporated, and doing business in Canada
is insolvency legislation, and is therefore intra vires of the
Canadian Parliament.'"
16. The Dominion Parliament has a right to pass an Act (31
V. c. 17) to incorporate trustees, giving them authority to carry
on the business of an insolve bank, so far as it is necessary to
wind up same. And it can Also pass an Act vesting in the
Dominion Government the bank's property held by the trustees.'
Per Ritchie, C.J.— It is the sub-sections referring to banking
and the incorporation of banks," and to bankruptcy and insol-
vency which give the Dominion Parliament power to pass these
Acts. •
Per Strong, Taschereau and Patterson, .IJ. — It is the sub-
section referring to bankruptcy and insolvency, and not that
referring to banking and the incorporation of banks which givts
the Dominion Parliament this power.
There is now no Dominion Insolvency Act, the same having
been repealed in 1880,'' and consequently many of the decisions
on this sub-section are at present of historical interest only.
They may, hov/ever, be of use should the insolvency legislation of
Canada be restoied.
' McClanaghan v. St. Ann's, 24 L. C. J. 162 (1880).
'Cushing V. Dupuy, 5 A. C. 409 (1880).
* Schooll red v. Clarke, 17 S. C. R. 265 (1890).
» Allen V. Hansom, 18 S. C. R. 667 (1890).
'" Ibid, at pp. 672-3-7.
' Quirt V. R., 19 S. C. R. 510 (1891).
- § Sub-section 15. ^
Hi Vict. c. 1 mom.).
120 CANADIAN CONSTITUTIONAL LAW.
SUB-SECTION 22. Patents cf Invention and Dis-
covery.
1. Under this sub-section the Dominion Parliament has
power to regulate procedure in patent litigation.^
2. Procedure in the nature of a writ of scire facias to set
aside letters patent granted under a Dominion Act should be
instituted in the name of the Provincial Attorney-General.'
But a Court of co-ordinate jurisdiction has held that such a
proceeding should be instituted in the name of the Attorney -
General for Canada."
3. Patents are property and civil rights (see § 92, sub-section
13), in the Province where the holder is domiciled, yet they
confer rights exercisable in any Province of the Dominion, and
as a matter of policy the legislation on the subject is in the
general (Dominion) government."
SUB-SECTION 23. Copyright.
1. Canada as distinguished from the legislatures has ex-
clusive control of colonial copyright within the Dominion, but
this does not control the paramount authority of the Imperial
Parliament."
2. The Canadian Parliament h^s no greater power respecting
copyright than had the Provincial Legislatures prior to Confed-
eration."
3. The Imperial Copyright Act (5 & 6 V. c. 45) was in force in
Canada at Confederation and remained so afterwards, and is not
affected by the Canadian Copyright Act of 1875 (now R. S. C. 1886,
c. 62), which is also in force.'"
4. A Canadian copyright obtained prior to publication of a
copyright in England, completely secures the possessor thereof
against all interference in Canada even against English reproduc-
tions or copies made under a subsequent British copyright.'
♦ Aitcheson v. Mann, 9 P. R. 473 (1883); Re Bell Telephone Co.,
7 O. R. 605 (1884).
" Re Pattee, 8 P. R. 292 (1871).
" Mousseau v. Bate, 27 L. C. Jur. 153 (1883).
■ Re Bell Telephone Co., 7 O. R. 605, at p. 611 (1884).
' Smiles v. Belford, 1 A. R. 436 (1876).
" md.
" Ibid.
'Anglo-Canadian Music Publishers v. Suckling, 17 O. R 239
(1S89).
SECTION NINETV-ONE, SUB-SECTION TWENTY-KOUH. 121
SUB-SECTION 24. Indians and Lands Reserved
for the Indians.
1. This sub-section iipplics to lands reserved for the In-
diana which have not been surrendered by the Indians, and does
uot include lands to which the Indians' title has been extin-
guished.'
2. All lands res'^rved for Indians are under the control of the
Dominion Parliament. But upon the estate of the Crown being
freed from the Indian titles, the beneficial interest in tho lands
accrues to the Provinces in which they are located.'
3. Moneys due in respect of Indian lands may be recovered
by the Dominion.*
4. The Dominion Parliament'^ power of legislation over
lands reserved for the Indians is not inconsistent with the bene-
ficial interest of the Province therein.^
SUIJ-SECTION 25. Xatnralization and Aliens.
SUB-SECTIOX 20. Marriage and Divorce.
This sub-section is cut down by sub-section 12 of § 92.
SI^B-SECTIOX 27. The Criminal Law except the
Constitution of Courts of Criminal Jurisdiction, but in-
cluding' tho procedure in criminal matters.
See section 92, sub-section 8, Note 8.
See section 92, sub-section 14, Notes 2, 5, 6, 12, 13.
See section 92, sub-section 15, Note 6.
See section 92, suB-section 16, Note 8.
1. The whole criminal law of Canada was codified in 1892."
2. The provision of a Provincial (O.) Law (32 V. c. 32) that a
compromise of a contravention thereof shall be punishable by
Imprisonment does not infringe on this sub-section, the same
not being part of the criminal law existing independently of the
Provincial enactment creating the offence, but betng within the
powers of the Province under § 92, sub-sections 9, 15 and 16.'
See next note.
' Church V. Fenton, 5 S. C. R. 239 (1880).
'St. Catharines Milling and Lumber Co. v. R., 14 A. C. 46
(1888).
* Mowat, A.G. V. Casgrain, 6 Q. L. R. Q. B. 12 (1897).
"St. Catharines Milling and Lumber Co. v. R., 14 A. C. *<>
(1888).
« See The Criminal Code, 55-56 V. c. 29 (1892).
' R. V. Boardman, 30 U. C Q. B. 553 (1871).
122 CANADIAN CONSTITUTIONAL LAW.
3. But a provision of a Provincial (0.) enactment (R. S. O. c.
181, § 57, 1877), providing that on a prosecution for an offence
under such Act, any person convicted of tampering with a
wilness should be liable to a penalty is not within 8 92, sub-
sections 8 or 15, but infringes on this sub-section and is invalid."
In this latter case it will be observed that the Provincial
Legislature attempted to legislate concerning a common law
offence, i.e., interfering with a witness (subornation of perjury),
which it is submitted affects the " criminal law " within this sub-
section according to the definition of Street, J., in R. v. Wason."
in R. V. Boardman above referred to '" the offence was, not com-
pounding a felony, but compounding an offence against a statute,
which, in the absence of express legislation, is no offence at all.
In this way the two cases are disringuished.
4. An Act creating a new crime for the purpose of punishing
it in the interests of public morality deals with criminal law,
under this sub-section, while an Act regulating commercial deal-
ings and providing punishments for the protection of parties
thereto, does not affect criminal law and is within Provincial
jurisdiction."
5. Under a Provincial Act, and to redress a breach of it, the
proceeding being civil, there can be no certiorari.'
6. Trial with or without a jury is " criminal procedure "
within this sub-section and is not an interference with the con-
stitution of the Court (reserved to the Provincial Legislatures,
§ 92, sub-section 14), and a Dominion statute providing therefor
is valid.' But the jury when empanelled and sworn are part of
the constitution of the Court under § 92, sub-section 14."
7. A Provincial (O.) Act (40 V. c. 18) providing that an offence
against a Dominion statute (the Canada Temperance Act of 1864)
may be treated as and proceeded upon under the Provincial
statute is legislation affecting the criminal law and is ultra vircH
under this sub-section.*
« R. v. Lawrence, 43 U. C. Q. B. 164 (1878).
° 17 O. R. 58 at p. 64 (1890). See infra, note 4 under this sub-
section.
'" Note 2 under this sub-section.
' Ex parte Duncan, 16 C. L. J. 188 (1872); R. v. De Coste, 21 N.
S. R. (216), (18 ).
- R. v. Bradshaw, 38 U. C. Q. B. 564 (1876).
"R. v. O'Rourke, 1 O. R. 464, per Wilson, C.J., in judgment
In C. P. D., 32 U. C. C. P. at p. 400 (1882).
*R. V. Prittie, 42 U. C. Q. B. 612 (1878); R. v. Lake, 43 U. C.
Q. B. 515 (1878).
SECTION NINETY-ONK, SLB-SECTION TWENTY-SEVEN. 123
Since It has been held in the recent case of Attorney-General
for Ontario v. Attorney-General for Canada (1896), A. C. 348, that
the Canada Temperance Act of 1864 was virtually a Provincial
enactment, the reasor for the decision in the case considered in
this note fails, and in all probability the statute here declared
iiKia i/n's would now be deemed valid legislation.
8. A Provincial (Man.) Act (53 V. c. 51) penalizing the keeping
of a gambling house is an infringement of this sub-section and
invalid, because the keeping of a gambling house is a common
law offence, it being part of the previously existing criminal
law, and Provincial Legislatures cannot interfere with common
law offences.'*
9. The Dominion Parliament alone can provide for the sum-
moning of jurors in criminal trials, but may delegate that right to
the Provinces, and the exercise by the Province of that right so
far as it is not inconsistent with Dominion legislation is not an
infringement of this sub-section."
This is a question of iHoccdure and not a question relating to
the on/a nidation of Courts.
10. As to delegation referred to in preceding note. The
authority to delegate implies the authority to qualify and restrict
the power delegated.'
11. A Provincial (N.B.) Act (Con. Stat, of 1877, c. 51), declaring
that County Courts should not have jurisdiction in actions to
recover penalties against justices of the peace where a Dominion
statute 32-33 V. c. 31, § 78), (The Summary Convictions Act) had
enacted to the contrary is overbourne by such Dominion legisla-
tion and is consequently invalid.*
12. A Dominion Act (37 V. c. 29) giving an informer a right
to recover in a civil action a penalty imposed as a punishment for
brioery at an election does not infringe on the rights of the
Provincial Legislatures under sub-sections 13 or 14 of § 92, but
comes under this sub-section and is valid."
The reason for this is that the rights of an inhabitant of
Ontario respecting Dominion elections is one of his nolitical
rights in Canada, rather than a civil right in any one Province.
(In re North Perth, 21 O. R. 538, per Boyd, C.)
° R. v. Wason. See case (reversed in C. A., 17 A. R. 221), as
reported in 17 O. R. 58, at p. 64, dissenting judgment of Street,
J. (1890).
' R. v. Shaw, 7 Man. L. R. 518 (1891).
" R. V. O'Rourke, 1 O. R. 464 (1882).
' R. V. Plante, 7 Man. L. R. 537 at p. 558, per Dubuc, J., (1891).
"Ward V. Reed, N. B. R. 279 (1882).
» Doyle V. Bell, 11 A. R. 326 (1884).
124 CANADIAN CONSrnUTIONAL L.vW.
13. A Dominion statute (R. S. C. 188G, c. 161), penalizing
bigamy no matter where tlie second marriage takes place,
with a provision that nothing in such Act should extend io
any second marriage contracted elsewhere than in Canada, by
any other than a British sul)ject resident in Canada, and leaving
Canada with intent to commit the offence. Held, the question
being whether the Imperial Parliament or the Canadian Parlia-
ment had power to pass such an Act, that it is within the com-
petence of the Canadian Parliament.'"
14. liut where a second marriage occurred in a foreigK
coimtry, and there wap evidtr.ce that the defendant, a British
subject resident in Canada, had left there irilh hiU-nt to commit
the offence, it was held following McLeod v. A.-G. of N. S. W.,'
that section 275 of the Criminal Code,- making such a marriage
an offence was ultra rires of the Canadian Parliament.'
Mr. Clement in his treatise on the law of the Canadian Con-
stitution at pages 191-2 considers R. v. Brierly ' overruled by Mc-
Leod V. A.-G. of N. S. W."' The judgment in the Brierly case it
seems might have been sustained by taking the view that it is
not the actual marriage outside of Canadian territory but the
leaving " Canada irith intent to commit the offence " which the
Canadian Parliament has declared a crime. Such intent having
existed within Canada, must be within the competence of the
Canadian Parliament to penalize. But the Plowman case does
not appear to be within the authority of McLeod v. A.-G. of N. S.
W., for in the latter case the question of a criminal intent exist-
ing within the colony never arose, while it was present but was
not considered as vital in R. v. Plowman. And it is submitted,
with deference, this is the proper view, and that upon it the
conviction in R. v.- Plowman, which was quashed by the Queen's
Bench Divisional Court (Armour, C.J., and Falconbridge, J.),
ought to have been sustained.
15. But the provisions of a Colonial statute penalizing the
act of a person, who, being married, goes through the form of
marriage with any other person in any part of the world, are
invalid as infringing on the exclusive jurisdiction of the Imperial
"R. v. Brierly, 14 O. R. 525 (1887).
' (1892) A. C. 455.
= 55-56 V. c 29 0892). ^
' R. V, Plowmen, 25 O. R. 656 (1894).
* 14 O. R. 525 (1887).
' (1891) A. C. 455.
"R. V. Plowman, 25 O. R. 656 (1894).
SECTION NINETY-ONE, HUB-SECTION TWENTY-SEVEN. 125
Parliament as far as " any part of the world " extends beyond the
territorial authority of the legislature which passed the Act in
question.'
See also the Criminal Code (55-56 V. c. 29), 1892, § 295-a.
16. A Provincial Legislature (O.) cannot regulate procedure,
«•.(/., appeals, in cases of offences against a Dominion enact-
ment. '
The statute in question here was the Canada Temperance
Act, 1864. Since the case of A.-G. for Ontario v. A.-G. for Canada
(1896), A. C. 348, in which this Act was declared in effect a pro-
vincial statute, the decision in the case from which this general
statement is taken, is probably not now good law. But this
general statement it is submitted is still authoritative.
The point here is that proved ut-o connected with the intliction
of punishment for oftences against Dominion Statutes must be
regulated by Dominion legislation.
17. A Provincial (O.) Act (53 V. c. 18. § 2), purporting to em-
power a police magistrate to try offences under a Dominion Act
respecting forgery, does not refer to the Constitution of a Crim-
inal Court (S 92, sub-section 14), but is legislation respecting
procedure in criminal matters within this sub-section, and is
iillm viiTs of the Provincial Legislature."
18. A Dominion statute (the Criminal Code) ^ absolving from
civil action a person charged with assault and battery, who, if
acquitted, obtains a certificate of dismissal of the case, or if con-
victed, suffers punishment or pays the penalty, is within the
power of the Dominion Parliament under this sub-section to
enact, and is not within § 92, sub-section 14.'
The point here is that the enactment in question is part of
the Dominion law coming within the exclusive competence
of Dominion legislation, and the Dominion Parliament has ex-
clusive power to impose the consequences of its legislation on a
party whom it affects.
19. A Provincial (O.) Act (R. S. O. 1877, c. 42) empowering a
County Judge of the County to preside over the sessions in
another county is not within sub-sections 14 or 16 of § 92, but is
' McLeod v. Attorney-General of New South Wales (1891), A.
C 455.
'R. v. Eli, 13 A. R. 526 (1886); R. v. Wasoh, 17 A. R. 221, at p.
242 (1890), reversing in effect R. v. Roddy, 41 U. C. Q. B. 291 (1877).
» R. V. Toland, 22 O. R. 505 (1892).
'" 55-56 V. c. 29 (1892), §S 865-6.
> Flick V. Brisbin, 26 O. R. 423 (1885).
126 CANADIAN CONSTITUTIONAL LAW.
an Infringement on the powers of the Dominion Parliament
under this sub-section and is invalid.^
SUB-SECTIOX 28. The Establishinenf, Mninten-
ancc and ^Ianaf2;cinent of Penitentiaries.
There are in Canada 5 Penitentiaries,
Kingston Penitentiary,
Dorchester Penitentiary,
Stony Mountain Penitentiary,
British Columbia Penitentiary,
St. Vincent de Paul Penitentiary.
SUJJ-SECTION 29. Such classes of subiects as are
expressly excepted in the enumeration of the classes of
subjects by this Act assigned exclusively to the Legislatures
of the Provinces.
1. The express exceptions in § 92 are those contained in sub-
sections 1 and 10.
2. The exception in § 92, sub-section 1, " except as regards
the offlce of Lieutenant-Governor," does not, it is thought, come
within the jurisdiction of the Canadian Parliament, it being a
matter of Imperial concern.'
3. But the exceptions in § 92, sub-section 10, are reserved to
the Dominion Parliament.
" And any matter coming- within any of the classes of
subjects enumerated in tliis 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."
1. Where a matter is of a local or private nature (within
section 92)* it is presumed notwithstanding this clause, not to
fall within § 91.=
2. See also notes to the introductory clause of this section.
'Gibson v. McDonald, 7 O. R. 401 (1885).
' Maritime Bank v. Receiver-General of N. B. (1892) A. C. 437.
* See § 92, sub-section 16.
»L. Union-St. Jacques de Montreal v. Belisle, L. R. 6 P. C. 31
at p. 36 (1874).
SECTION NINETY -TWO, INTIIODUCTOKY CLAUSE. 127
SECTIOX 92. Ill eacli Province the Legislature
may exclusively make laws in relation to matters cominj^
within the classes of subjects next hereinafter enumerated;
that is to sav:
See § 91, Introductory clause, Notes 1 to 14 (inclusive).
1. The rule for determining the extent of the powers of the
Provincial Legislatures is enumerated on page 99.
2. For the rules governing the construction of this clause,
see the notes to the introductory clause of § 91.
3. The Provincial Legislatures have granted to them the most
extensive powers for local purposes under this sub-section."
4. Notwithstanding the endeavour to accord pre-eminence to
thp Dominion Parliamei't it cannot have been intended that the
powers exclusively assigned to the Provincial Legislatures should
be absorbed in those given to the Dominion.'
5. The Act can be read so as to avoid all conflict and give
each legislative body the full legislative and proprietary rights
Intended to be conferred by the Imperial Parliament.'"
6. While legislation respecting Dominion peace and good
order (§ 91, Introductory clause), is for the Dominion Parliament,
that respecting Provincial peace and good order is for the Provin-
cial Legislatures."
7. The B. N. A. Act in conferring jurisdiction over particular
subjects must be held to have given at the same time the powers
needed for the effective exercise of the jurisdiction granted.'"
In other words, wherever a Legislature can pass a statute it
can always supplement that legislation by sanctions, e. g., penal-
ties and Dunishments.
8. A Provincial Legislature may legislate with a view to
regulating within the Province the sale of whatever may in-
juriously affect the lives, health, morals or well-being of the
community, whether it be intoxicating liquors, poisons or un-
wholesome provisions, if such legislation Is made bona Mp with
the object of regulation alone, even though, to a certain extent,
trade and commerce (§ 91, sub-section 2), are thereby affected.'
« Richardson v. Ranson, 10 0. R. 387 (1886).
'R. v. Robertson, 6 S. C. R. 52 (1882).
» R. v. Robertson, 6 S. C R. 52 (1882).
» De St. Aubyn v. Lafrance, 8 Q. L. R. 190 (1882).
'» Ex parte Leveille. 2 Steph. Dig. 445 (1877).
' Hodge V. The Queen, 9 A. C. 117 (1883).
128 CANADIAN CONSTITUTION A 1. I.aW.
9. The Provinces have the moet excluBlve powera granted to
them for local purposee.^
Srii-SKCTIOX 1. Tlic iiiiu'iidiiu-iit from tiiiic to
time iiotwitlistimdinp aiivlhinfi' in this Act of tlic Consti-
tution (tf tlic Province except as regards the ollice of
J.ieutenant-Ciovernor.
1. See 9 91. fcub-sectlon 29, Notes 1 and 2.
See {( 92, sub-section 14, Note 18.
2. A Provincial (O.) Act (51 V. c. 5) empowering the
Lieutenant-Governor to remit by Order In Council any penalty
Imposed through breach of a Provincial law, is not an amend-
ment of the Constitution as regards the office of Lieutenant-
Governor, and is valid, the same being legislation intended to
affect only offences within the jurisdiction of the Provincial
Legislature.'
3. Under this sub-section the Provinces of Manitol' . and
British Columbia have abolished their second chambers (tho
Executive Councils).
4. This sub-section enables the Provincial Legislatures to
deal wth the machinery of government, legislative and executive,
within the spheres assigned to them.*
5. This sub-section does not empower the Legislatures to
enlarge the sphere of legislative authority already granted to
the Provinces.
6. An Act (R. S., 5th series, c. 3), empowering a Provincial
I.«gislature (N. S.) to adjudicate that wilful disobedience of its
order to attend In reference to a libel reflecting on its members
is a breach of privilege and contempt, and providing punishment
for a breach thereof by imprisonment, and indemnifying its
members against legal proceedings in respect of their votes
therein, except so far as they confer criminal jurisdiction other
than as incident to the protection of members, are ultra rbro
under this sub-section, or else by virtue of § 5 of the Colonial
Laws Validity Act (28-9 V. c. 63) recognized by the B. N. A. Act,
§ 88. Fielding v. Thomas (1896), A. C. 600.
SUB-SECTIOX 2. Direct taxation within the
Province in order to the raising" of a revenue for Provincial
purposes.
= Richardson v. Ransom, 1 O. R. 387 at p. 393 (1885).
' Attorney-General for Canada v. Attorney-General of
Ontario. 19 A. R. 31 (1892).
* Hodge V. R., 9 A. C. 117 at p. 132 (1883).
SKCTIUN NINETY-TWO, SUB-SECTION TWO. 129
1. See 9 'Jl, Introductory clause, Note 16.
See g 91, sub-sectiou 3, Notes 4 and 5.
See 8 91, BUb-etctlon 5. Note 1.
See 8 91, hub-Bcctlon 12, Note 5.
2. A direct tax is one which is demanded from the very
persons who It is intended or desired should pay it. To be direct
the tax need not be general.'
3. A statute of a Provincial (N.B.) Legislature (33 V. c. 47)
Imposing a local tax for Provincial purposes is direct taxation
within this sub-section, but it may also come within sub-sections
9 and 16 of § 92."
4. A statute of a Provincial '^^Q.) Legislature (39 V. c. 52)
conferring on municipalities the right to tax ferrymen and ferries,
relates to direct taxation, and is also a local or private matter
within sub-section 16, and is valid, the same not infringing on
the jurisdiction of the Dominion Parliament respecting naviga-
tion and shipping (§ 91, sub-section 10).'
5. A Provincial (O.) enactment R. S. O. 1887, c. 194, § 51, sub-
section 2), requiring every brewer, maltster and distiller to obtain
a license thereunder (and pay a license fee), In order to sell liquor
wholesale within the Province Is direct taxation within this sub-
section, and is valid. It Is also valid within the meaning of " other
licenses " in sub-section 9 of this section."
6. This sub-section enables a Provincial Legislature when-
ever it sees fit to impose direct taxation for a local purpose upon
a particular locality within the Province, and not merely to raise
a revenue for general provincial purposes by a general tax in-
cident on the whole Province.*
7. " Regulation " Is different from " taxation." ">
8. A Provincial (Q.) Legislature imposing a direct tax en
commercial corporations cariylng on business in the Province,
"John Stuart Mill's Political Economy; Bank of Toronto v.
Lambe, 12 A. C. 575 at p. 582 (1887).
•> Dow v. Black, L. R 6 P. C. 272 (1875).
' Longueuil v. Montreal, 15 S. C. R. 566 (1888).
»R. v. Halliday, 21 A. R. 42 (1893); Brewers and Malsters'
Association for Ontario v. Attorney-General for Ontario (1897), A.
C. 231; reversing in effect Severn v. R., 2 S. C. R. 76 (1878), which
reversed R. v. Taylor, 36 U. C. Q. B. 183 (1875).
» Dow V. Black, L. R. 6 P. C. 272 (1875).
^"Weiler v. Richards, 26 C. L. J., N. S. 338 (1890); Bank of
Toronto v. Lambe, 12 A. C. 575 (1887).
H.c.n.— 9
130 CANADIAN CONSTITUTIONAL LAW.
relates to dirsct taxation within this sub-section and is intru rircs
of the Provincial Legislature.'
9. Water rates in a city are not taxes.=
10. A Provincial Act imposing a tax on the Dominion notes
held by a bank as part of its cash reserve under a valid Dominion
Act (The Bank Act, 34 V. c. 5, § 18), is direct taxation under this
sub-section and is valid."
The principle illustrated by this case is the following:
Though property owe its creation to Dominion (or any other)
legislation, yet when in a Province, that property is, for purposes
of taxation, Provincial property.
11. The Provincial Legislatures have p >wer to raise money by
direct taxation, and this excludes the rower to raise it by indirect
taxation. The power of raising money by direct taxation Uiust
however be qualified by the powers given to the Provinces in
other sub-sections of § 92 {e.g., by sub-sections 8 and 9), whereby
the Provincea . . raise money indirectly but incidentally.*
12. A Provincial (Man.) Act declaring fees payable by stamps
in legal proceedings a direct tax, and enacting that such fees
should be bourne by the person actually paying them in the first
Instance, and none other, is direct taxation within this sub-
section, and is intra vires of the Provincial Legislature."
This Act surmounted the difficulty raised in Attorney-
General of Quebec v. Reed," and other cases following it, where
Provincial Stamp Acts were held to be indirect taxation, and
consequently ultra vires of the Provincial Legislature.
13. The povi'ers cf taxation veste'd in the Provincial Legis-
latures by this sub-section are not to be curtailed on the ground
that they may be abused or prejudicially affect institutions
created by Dominion legislation.*'
14. Regarding the words " within the Province," in the above
sub-section, it has been held that the persons to be taxed under a
'Pigeon V. Recorders Court, 17 S. C. R. 495 (1890); Bank of
Toronto v. Lambe, 12 A. C. 575 (1887).
'^Attorney-General of Canada v. Toronto, 23 S. C. R. 514
(1893).
" Windsor v. Commercial Bank of Windsor, 3 Rus. & Gel. 420
(1882).
* R. v. Taylor, 36 U. C. Q. B. 183 at p. 201 (1875).
= Crawford v. DufReld, 5 Man. L. R. 121 (1888).
" 10 A. C. 141 (1884). See this case at pp. 93 and 102, supra.
' See preceding note.
" Bank of Toronto v. Lambe, 12 A. C. 575 at p. 586 (1887).
SECTION NINETY-TWO, SUB-SECTION TWO. 131
Provincial law need not be either domiciled or resident within
the Province. Anyone found within the Province may be
legally taxed there."
The following proposition founded on the note, and also Note
10 to this §, it is submitted, is likewise true: —
Auythimj found within the Province may be legally taxed
there.
15. A Provlrce may under this sub-section impose dirent
ta::atlon for a local purpcso upon a particular locality within the
Piovince.'*
SUB-SECTION 3. The borrowino- of money on the
sole credit of the Province,
SUB-SECTIOX 4. The establishment and tenure
of Provincial oHices and the appointment and payment of
Provincial officers.
See S 92, sub-section 14, Note 18.
See § 92, sub-section 18, Note 13.
1. A Provincial Legislature may provide for the appoint-
ment of officers to enforce the Canadian Temperance Acts of
1864 (passed prior to the Union)' by the Province of Canada, and
of 1878 (passed after the Union by the Dominion of Canada),' in
municipalities where either of these statutes had been adooted.
such legislation being within the jurisdiction of the Province
under this sub-section, also under § 92, sub-sections 8 and 16.
Mr. Clement questions theee iL'cisions.^ In view of the
decision of the Imperial Privy (^ouncil in Attorney-General for
Ontario v. Attorney-General for Canada (1896) A. C. 348, con-
sidered under Note 23 to the introtluctory clause of S 91 of the
B. N. A. Act, it is submitted that the former of these two cases is
certainly a valid authority, and very probably the latter is valid
as well.
Sl'B-SECTlOX 5. The management and sale of the
Public Bands belonging to the Province and of the timber
and wood tliereon.
See § 91, sub-section 3, Note 4.
« Ibid at p. 584.
>" Dulmage v. Douglas, 4 Man. L. R, 495 (1887).
* License Commissioners of Prince Edward v. Prince Edward,
26 Gr. 452 (1879).
= License Commissioners of Frontenac v. County of Frontenac,
14 O. R. 749 (1887).
' Clement on the Law of the Canadian Constitution (1892),
436-7.
132 CANADIAN CONSTITUTIONAL LAW.
SUB-SECTION 6. The establishment and mainten-
ance of the Public and lleformatory Prisons in and for the
Province.
SUB-SECTIOX 7. The establishment, maintenance
and management of Hospitals, Asylmns, Charities and
Eleemosynary' Institutions in and for the Province, other
than Mar'nc Hospitals.
See § 91, introductory clause, Note 24.
SUB-SECTIOX 8. Municipal Institutions in the
Province.
Great difficulty has been experienced in distinguishing legis-
lation coming under thN and the following sub-section, from
legislation respecting the regulation of trade and commerce (§ 91,
sub-section 2), and the distinction in some instances seems to be
arbitrary.
1. See § 91, introductory clause, Note 19.
See § 91, sub-section 19, Notes 1 and 3.
See § 91, sub-section 27, Note 3.
See § 92, sub-stction 2, Note 11.
See § 92, sub-section 4, Note 4.
See § 92, sub-section 18, Note 10.
See § 92, sub-section 15, Note 4.
2. A Provincial (O.) Act (32 V. c. 32) empowering municipal
corporations to pass by-laws wholly prohibiting the sale of liquors
In all places except houses of public entertainment, and limiting
the number of licenses, is legislation within this sub-section and
sub-section 16 of § 92, and not being legislation respecting the
regulation of trade and commerce (§ 91, sub-section 2), is valid.*
3. By this sub-section the Imperial Parliament must havd
intended the Provinces to establish municipalities possessing the
same powers as those existing at the time of the Union. ^
4. The Provinces may make reasonable regulations for pre-
serving good order in the municipalities under their control, and
for this purpose may restrict the sale of spirituous liquors. And
a Provincial (Q.) statute (38 V. c. 74, § 4), ordering houses, in
which spirituous liquors are sold, to be closed at certain times, is
within the powers of the Provinces to enact, and comes within
this sub-section.'
* Slavin v. Orillia, 36 U. 0. Q. B. 159 (1875).
"IMd; Corporation of Three Rivers v. Suite, 5 Q. L. N. 330
(1885); Noel v. Richmond, 1 Dor. Q. A. 333 (1881).
" Blouln V. Quebec, 7 Q. L. R. 18.
SE ION NINETY-TWO, aUB-SECTION EIGHT. 133
See Note 23 to introductory clause of § 91.
5. A Provincial (R. S. O. 1877, c, 181), statute imposing hard
labor as a punishment for the violation of any of its laws, is valid
under this sub-section and sub-section 9 of this section.'
The reason for this is that any legislature can carry out -ts
laws by penalties and punishments, otherwise the laws would be
ineffective in their operation in cases where they were violated.
6. This sub-section and sub-section 9 of this section are
cumulative.''
7. A Provincial (Q.) Act (42-43 V. c. 4) prohibiting or regu-
lating the sale of liquors in saloons or taverns is within the power
of the Provincial LrCgislatures under this sub-section."
See Note 23 to introductory clause of § 91.
8. A Provincial (Q.) Act (57 V. c. 51, and 42-43 V. c. 53),
respecting the abolition of nuisances as being hurtful to public
health is within the competence of the Provincial Legislatures,
even though the Dominion Parliament may enact a general law
regarding nuisances under § 91, sub-section 27.'"
This is under the above clause and also sub-section 16 of
this g.
9. Quwre,^ per Cameron, J., as to the power of the Local
Legislatures to limit or authorize municipalities to limit the
number of licenses.'
See, now, next note.
10. The sections of a Provincial (0.) Act (R. S. O. 1877, c. 181),
which make regulations in the nature of police, or which make
municipal regulations of a merely local character for the good
government of taverns, etc., do not interfere with the general
regulation which the Dominion government exercises over trade
and commerce (§ 91, sub-section 2), but come within § 92, sub-
sections 8, 15 and 16, and are intra vires of the Provincial Legis-
latures.'
11. A Provincial (O.) statute (51 V. c. 2) designating the
judicial officer by whom controverted municipal election petitions
are to be determined is within the powjr of the Provincial Legis-
lature under this sub-section.*
' R. v. Frawley, 7 A. R. 246 (1882).
' Ibid.
" Poulin V. Quebec, 9 S. C. R. 185 (1881).
•» Ex parte Pillow, 27 L. C. Jur. 216 (1883).
' This doubt is now settled, see note following.
= R. V. Howard, 46 U. C. Q. B. 346 (1881).
» Hodge V. R., 9 A. C. 117 (1883).
* Reg ex rel McGuire v. Birkett, 21 O. R. 162 (1891).
134 CANADIAN CONSI'lTUTIONAL LAW.
12. A statute of a Provincial (Q.) Legislature in the nat'ire of
an absolute or conditional prohibitory liquor lav; applicable to all
municipalities within the Province relates to municipal institu-
tions within this sub-secticn.^
See next note.
And a Provincial (O.) enactment (53 V. c. 56, § 18), empowering
municipal bodies upon certain conditions to pass prohibitory
liquor by-laws, so long as the prohibition extends only to the
retail sale of liquors, is intra vires of the Provincial Legislature."
13. Provincial (O.) laws (R. S. O. 1877, c. 181; 41 V. c. 14,
44 v. c. 27, 47 V. c, 34, providing for the enforcement by Provin-
cial officers (appointed and paid according to Provincial legisla-
tion) of a Dominion statute (The Canada Temperance Act of 1878),
which has been properly brought into force in any municipality
are within the competence of the Provincial Legislature by this
sub-section, and by sub-sections 4 and 16 of § 92.'
See note 1 to sub-section 4 of this §.
14. A Provincial (Q.) absolute or conditional prohibitory
liquor law (38 V. c. 76) for the purpose of municipal institutions
is not incompatible with the power of the Dominion Parliament
to pass a prohibitory liquor law for the whole Dominion.*
Such Act may be valid within the next sub-section. See § 92,
sub-section 9, Note 7.
15. A Provincial (O.) Act (R. S. 0. c 174, § 466, sub-aection 6),
empowering City Councils to pass by-laws " for preventing criers
and vendors of small wares from practising their calling in the
market, public streets and vacant lots adjacent thereto," is within
the power of the Province within this sub-section, and is not an
interference with trade and commerce (§ 91, sub-section 2).'
16. The contiol over navigation conferred on the Dominion
Parliament (§ 91, sub-section 10), does not prevent the Provinces
from exercising municipal and police control on navigable rivers,
and a Provincial (Q.) Act (43-44 V. c. 62) extending the limit of
' Corporation of Three Rivers v. Suite, 5 Q. L, N. 330 (1885).
"Huson V. Township of South Norwich, 24 S. C. R. 145 (1895);
In re Local Option Act, 18 A. R. 572 (1891); Attorney-General for
Ontario v. Attorney-General for Canada, 1896, A. C. 348.
' License Commissioners of Prontenac v. Frontenac, 14 O. R.
741 (1887).
*" Corporation of Three Rivers v. Suite, 5 Q. L. N. 330 (1882) ;
11 S. C. R. 25 (1883).
° Harris v. Hamilton, 44 U. C Q. B. 641 (1879).
SECTION NINETY-TWO, HUB-SECTION EIGHT. 135
the Town of St. Johns to the middle of a navigable river was
held valid, and to confer the right to tax property within the
added limits.'"
STjB-SECTIOX 9. Shop, saloon, tavern and auc-
tioneer, and other licenses, in order to the raising of a
revenue for Provincial, Local or "Municipal purposes.
See § 91, introductory clause, Note 18.
See § 91, sub-section 2, Note 14.
See § 91, sub-section 27, Note 2.
See § 91, sub-section 29, Note 1.
See § 92, sub-section 2, Notes 3, 5 and 11.
See § 92, sub-section 8, Notes 5. 6 and 14.
1. The scope of this clause is determined by its expressed
purpose, " the raising of a revenue."
2. It is by virtue of this sub-section alone that the Provincial
Legislature can claim the right to pass laws affecting or restrain-
ing commerce.'
3. A law of a Provincial (Q.) Legislature (The Quebec Licenee
Law of 1878) relating to the sale of liquors in taverns and public
places, so as the better to maintain peace and good order comes
within this sub-section and is valid."
4. The expression Ucfimv has not a limited application in our
statutes, and wholesale traders have been obliged to take out
licenses for municipal revenue.^
5. A Provincial (N.S.) Act (R. S., 4th series, c. 75), passed after
Confederation imposing penalties for retailing liquors without a
license, and providing for the granting of licenses, similar enact-
ments having been in force in the Province prior to Confedera-
tion is within the power of the Province under this sub-section,
and is not legislation respecting trade and commerce, under § 91,
sub-section 2.*
6. The power to .license inland ferries in a Province rests
with the Province.''
7. A Provincial (Q.) Act (38 V. c. 76) repealing an Act of the
old Province of Canada, which incorporated the City of Three
'"The Central Vermont Ry. v. St. Johns, 14 S C. R. 288 (1887).
affirmed in Privy Council 14 A. C. 590 (1888).
' De St. Aubyn v. Lafrance, 8 Q. L. R. 190, at p. 191 (1882).
' IMd.
" See 1 Cart. 429, and authorities there noted.
' Keefe v. McLennan, 2 Russ. & Chel. 5 (1876).
' Longueuil v. Montreal, Mont. L. R. 3 Q. B. 172 at p. 183
(1888).
136 CANADIAN CONSTITUTIONAL LAW.
Rivers, and conferred on its Council authority to pass by-laws
restraining and prohibiting the sale of intoxicating liquors or pro-
viding for their sale upon conditions, is within the powers of the
Province under this sub-section, the same being intended to
permit of the raising of a revenue for municipal purposes."
8. A Provincial (Q.) Act (37 V. c. 81) authorizing a municipal
corporation to impose a license tax on butchers who keep stalL-s
elsewhere than on the public markets is within the authority of
the Provincial Legislature as given by this sub-section, and is not
an interference with trade and commerce.'
9. A Provincial Act imposing fines and penalties for selling
liquor without a license is valid within this sub-section and also
sub-section 15 of this section.^
The reason for this is that a Legislature's enactments can be
carried out by proper sanctions, otherwise they will be mere
directions.
10. A Dominion statute (45 V. c. 118) empowering corpora-
tions to hold lands in Canada does not prevent a Province from
passing a law preventing entirely or restricting the holding of
lands by corporations in a Province, the Dominion statute merely
operating as a license from the Crown."
11. A Provincial (Q.) statute (41 V. c. 3), providing for
the granting of a license to liquor merchants is intra vii-ca of the
Province within this sub-section, but does not prevent the
Dominion Parliament providing (43 V. c. 19) for the granting of a
license for the manufacture of liquor to brewers, with a restric-
tion therein from selling same elsewhere than on their own
Dremises."
12. A Dominion Government license to a brewer to manufac-
ture beer, it is submitted, restricts the licensee from selling ihe
same elsewhere than on his own nremises.'
13. A Provincial (N.B.) Act (50 V. c. 4) imposing on the
holder of a liquor license burdens which are not necessarily an
absolute prohibition of the liquor traffic is intra rvrcs within this
sub-section.''
» Suite V. Corporation of Three Rivers, 11 S. C. R. 25 (1883).
See note 13 to preceding section.
'Angers v. Montreal, 24 L. C. J. 259 (1876); Mallette v.
Montreal, 24 L. C. J. 263 (1879).
« R. V. McMillan, 2 Pugs. HO (1874).
» McDiarmid v. Hughes, 16 0. R. 570 (1888).
^o Molson V. Lambe, 15 S. C. R. 253 (1888).
^ Ibid.
= Danaher v. Peters, 17 S. C. R. 44 (1889).
SECTION NINETY-TWO, SUB-SECTION NINE. 137
14. A Provincial (Q.) Act (The Quebec License Act) imposing
penalties for the violation of Provincial laws under this sub-
section does not infringe on the right of the Dominion Parlia-
ment to legislate respecting trade and commerce (§ 91, sub-section
2), and the Provincial Legislature having jurisdiction over such
subjects has also power for the effective exercise of that juris-
diction."
15. Provincial enactments whereby persons who sell liquor
by wholesale are required to take out a license are not invalid
as an interference with trade and commerce (§ 91, sub-section 2).*
16. In the absence of conflicting legislation by the Canadian
Parliament, the Provincial Legislatures have power to prohibit
the sale of liquor if such prohibition be only local in the
Provinces.'
SUB-SECTrOX 10. Local Works and Under
takings otlier than such as are of the following; classes: —
(a) Lines of steam or other ships, railways, canals,
telegraphs, and other works and undertakings, connecting
the Province with any other or others of the Provinces,
or extending beyond the limits of the Province:
(h) Lines of steamships between the Province and
any British or foreign country:
(c) Such works as, although wholly situate within the
Province, are before or after their execution declared by
the Parliament of Canada to be for the general advantage
of Canada or for the advantage of two or more of the
Provinces.
1. See § 91, sub-sections 3, Note 4.
See § 91, sub-section 10, Note 1.
See § fl, sub-section 29, Notes 1, and 3.
See § 92, sub-section 13, Notes 12 and 18.
2. A Dominion Act (38 V. c. 20) requiring Insurance Com-
panies to obtain licenses from the Minister of Finance as a condi-
tion precedent to their carrying on the business of Insurance in
the Dominion cannot withdraw the company from the operation
'Ex parte Leveille, 2 Steph. Dig. 445 (1877).
* Ibid.
"Attorney-General for Ontario v. Attorney-General for the
Dominion of Canada (1896) A. C. 348.
138 CANADIAN C(JNSTITUri()NAL LAW.
of a Provincial Act (39 V. c. 34) to secure uniform conditions in
insurance aolicies."
3. A Provincial (Q.) Act (31 V. c. 25) incorporating a naviga-
tion company, the operations of which are confined to a parti-
cular province, does not invade the jurisdiction of the Dominion
Parliament respecting navigation and shipping, but is within the
power of a Provincial Legislature under the sub-section.'
4. A Provincial (0.) Act (44 V. c 22) declaring that one of its
provisions (as to frog packing on a railway) shall apply only to
those railways over which the Ontario Legislature has Jurisdic-
tion, derives its validity from this sub-section and therefore does
not apply to a railway between two Provinces, which by clause
" A ' of this sub-section is excepted from the operation of a
Provincial Act.*
5. A Provincial (Q.) enactment (39 V. c. 2, § 8) amalgamating
a railway company which having been incorporated by a Provin-
cial (Q.) Act (32 V. c. 55) was declared by a Dominion Act (36 V.
c. 82) to be a federal railway (see clause " C " of this sub-section)
with a Provincial railway, is legislation respecting a federal com-
pany, and an invasion of the Dominion rights, under clause " C "
of this sub-section, and is therefore invalid."
6. A Dominion statute (51 V. c. 5) enacting that no Provincial
railway shall cross a Dominion railway without the approval of
the Railway Committee of the Privy Council (a body created by
Dominion legislation) is within the power of the Dominion
Parliament under exception " C " to this sub-section, and is
valid.'"
7. The provisions in a Provincial (Q.) Act (38 V. c. 64) Bub-
stituting a new class of persons interested in the trust funds of a
Board of Management for the old class, after the Board had. by
Dominion legislation (22 V. c. 66) become a federal organization,
infringes on rights of the Dominion Parliament under the ex-
ception in clause " C " of this sub-section and are invalid.'
8. Where a Provincial and Dominion railway cross, both the
Provincial Ccmmissicner of Public Works, and the Dominion
Railway Committee of the Privy Council must give their consent,
which the railway companies cannot by consent waive.-
" Citizens v. Parsons; Queen v. Parsons, 4 A. C. 96 (1881).
' Macdougall v. Union Navigation Co'y, 21 L. C. J. 62 (1877).
" Monkhouse v. G. T. R., 8 A. R. 637 (1883).
" Bourgoin v. M. O. and O. Ry. Co., 5 A. C. 381 (1880).
"' C. P. R. V. Northern Pacific and Man. Ry. Co., 5 Man. L. R.
301 (1888).
' Dobie V. The Temporalities Board, 7 A. C. 136 (1882).
= Credit Valley Ry. Co. v. G. W. R. Co., 25 Gr. 507 (1878).
SECTION NINETY-TWO, SUB-SECTION TEN. 139
9. A Provincial (0.) Act (31 V. c. 44) converting bonds and
old stoclc of a railway company (the Brockville and Ottawa Rail-
way Co.), which the Province had (by 23 V. c. 109) authorized,
into reduced new stock is valid legislation within this section,
notwithstanding the fact that such debts are by fiction of law
domiciled out of the Province.^
10. Whether the Toronto Harbour belongs to the Dominion
or to the Province of Ontario its Commissioners must be subject
to the law of Ontario where their trust is to be administered.*
11. The Dominion Parliament has the exclusive right to
prescribe regulations for the construction, repair and alteration
of the appellant railway, and the Provincial Legislature has no
power to regulate the structure of a ditch forming part of its
authorized works. But the provisions of the Municipal Code of
Quebec having prescribed the cleaning of the ditch and the
removal of an obstruction which had caused inundation of
neighboring land, are intra vires of the Provincial Legislature, as
a railway, the company is under the control of the Dominion
Parliament, but in all other respects it is subject to Provincial
control, it being property within the Province. C. P. R. Co. v.
Corporation of the Parish of Notre Dame de Bonsecours, 1899
(A. C.) 367.
SUB-SECTI0:N" ll. The Incoi-poration of Com-
panies with Provincial objects,
1. See § 91, introductoiy clause. Note 24.
2. A Dominion statute (37 V. c. 103) creating a corporation to
carry on business in the Dominion, is not an interference with
this sub-section, though the company confine its operations to
one Province only, and is valld.°
3. The following is a summary of the decisions resoecting
jurisdiction:
(fl) A company chartered to operate in one Province, and
operating there, is a Provincial company. °
'Jones V. Canada Central Ry. Co., 46 U. C. Q. E. 250 (1881).
'Re The Toronto Harbour Commissioners, 28 Gr. 195 (1881);
In re the Commissioners of the Cobourg Town Trust, 22 Gr. 377
(1875).
^ Col. Bldg. and Inv. Ass'n v. A.-G. of Quebec (Loranger), 9 A.
C. 157 (1883), reversing Loranger v. Col. Bldg. & Inv. Ass'n, 5 Q.
L. N. 116 (1882); and reversing in effect R. v. Mohr, 7 Q. L. R. 183
(1881).
' Macdougall v. Union Navigation Co., 21 L. C. J. 63 (1877).
140 CANADIAN CONSTITUTKJNAL LaW.
(?>) A company chartered to operate In several Provinces,
and operating In only one, is a Dominion company.'
4. " Provincial objects " refers to local objects within a
Province, in contradistinction to objects which are common to
all Provinces in their collective or Dominion Quality."
5. A Provincial (O.) Act (39 V. c. 93) incorporating an insur-
ance company, is within this sub-section, and such company may
enr.er into contracts outside the Province of incorporation
wherever such contracts are recognized by comity or otherwise."
6. Such a company's contracts, entered into outside the Pro-
vince of incorporation, have only whatever force the authority in
such place (outside the Province of incorporation) chooses by
courtesy or otherwise to accord them.'"
7. Canadian statutes (20 V. c. 227, and 32-33 V. c 65), render-
ing Canadians and Canadian corporations subject to any United
States laws is unconstitutional in the sense in which any Imperial
enactment is unconstitutional, it being here an abdication of
sovereignty, and this sub-section cannot give it validity.'
7. A Provincial (N. B.) Act (32 V. c. 54) legislating respect-
ing a Provincial railway running only to the boundaries of the
Province, is within the power of the Province under this sub-
section, even though there be corresponding legislation by the
authority beyond the Province providing for connection with it.-
SUB-SECTIOX 12. Solemnization of Marriage in
the Province.
1. See notes to § 91, sub-section 26.
2. The Provincial Legislatures have control of all legislation,
including procedure, respecting the formation of the marriage tie,
the Dominion Parliament has control of all legislation, including
the procedure, respecting the sundering of that tie.
SUB-SECTIOX 13. Property and Civil Eights in
the Province.
1. See § 91, introductory clause. Notes 18, 20, 24 and 25.
See § 91, sub-section 2, Notes 8 and 10.
See § 91, sub-section 8, Note 5.
See § 91, sub-section 15, Notes 6 and 8.
' Col. Bldg. & Inv. Ass'n. v. A.-G. of Quebec (supra).
* Clarke v. Union Fire Insurance Co.'y, 10 P. R. 313 (1883).
• Ibid.
" Ibid.
' International Bridge Co. v. C. S. Ry. Co.'y, 28 Gr. 114 (1881).
» European & N. A. Railway Co. v. Thomas, 1 Pugs. 42 (1871).
SECTION NINETY-'IVVO, SUR-SECTION THIRTEEN. 141
See § 91. Bub-sectlon 21, Notes 1, 4, 6, 11 and 12.
See § 91, sub-section 22, Note 3.
See § 91, sub-section 27. Note 12.
2. These words are sufficiently large to embrace such rights
arising from contract as are not Included in the classes of sub-
jects set out in § 91.' These words are used in their largest
sense.* They do not exclude all jurisdiction in the Dominion
Parliament.'^ Too much importance has been attached to this
sub-section (also to section 92, sub-section 14, and to § 101).°
3. A Provincial (0.) Act (34 V. c. 99) altering a testator's will
and re-dividing his property is within the powers of a Provin-
cial Legislature under this sub-section.'
4. A Provincial (N.B.) Act (C. S. N. B. c. 38), providing for the
imprisonment of a person making default in payment of a sum
due on a judgment, where he has since the judgment had means
to pay and defaulted, or where the liability in question was in-
curred through fraud, by which the debtor might have been pro-
ceeded against criminally, is not insolvent legislation (§ 91, sub-
section 21), but is within the powers of the Provincial Legislature
under this sub-section and also sub-sections 14 and 15 of § 92, and
is valid."
5. The enforcing of the payment of such a judgment is a divil
right within this sub-section."
6. A Provincial (0.) Act (39 V. c. 24), to secure uniform con-
ditions in Are insurance policies is within the power of the Pro-
vincial Legislatures to enact within this sub-section, the same
not being legislation respecting trade and commerce (§ 91, sub-
section 2)."
7. The provision In a Provincial (Q.) Act (32 V. c. 15, § 190),
authorizing the Lieutenant-Governor (o) to revoke the right in
certain municipalities to exact tolls in case of default in making
repairs, and (6) to transfer the property to others, is within the
powers of the Province under this sub-section and also § 92, sub-
section 16.'
° Citizens v. Parsons, 7 A. C. 96 (1881).
* Jbid.
" Valin V. Laoglols, 3 S. C. R. 1, per Fournier, J. (judgment
affirmed in the Privy Council), 5 A. C. 115 (1879).
"Ibid, per Ritchie, C.J., in Supreme Court.
• Re Goodhue, 19 Gr. 366 (1872).
^Ex parte Ellis, 1 P. & B. 593 (1878).
" Ibid, judgment of Allen, C.J.
'o Citizens v. Parsons, 7 A. C. 96 (1881).
> Cleveland v. Melbourne, 4 Q. L. N. 277 (1881).
142 CANADIAN CONSTITUTIONAL LAW.
8. A Provincial (N.S.) Act (41 V. c. 8) authorizing a Provin-
cial Governor In Council to appoint Commissioners with
authority to entertain an application for the discharge of Insol-
vent debtors under a Provincial Act (R. S., 3rd series, c. 137),
passed before Confederation, is not insolvency legislation (§ 91,
Bub-sectlon 21), but relates to either property and civil rights in
the Province, or the matters referred to in § 92, sub-stction 14,
jind la valid."
9. To discharge a person unable to pay a particular debt Is
not to (leal with the general subject of insolvency (8 91, Bub-
sectiou 21), but relates to the matters in this sub-section."
10. A Provincial (O.) Act (39 V. c. 62) varying the trusts in a
grant of ordinance lands made to a municipal corporation (the
Corporation of the City of Toronto) by the old Province of
Canada is within the powers of the Provincial Legislature under
this sub-section.*
11. The clauses in a Provincial (Q.) Act (38 V. c. 64)
materially altering the class of persons Interested in the cor-
porate funds of a Board of Management after the Board has by
Dominion Legislation (22 V. c. 66) become a federal organi-
zation is not legislation respecting property and civil rights in the
Province, but infringes on the jurisdiction of the Dominion
Parliament and is invalid.'
12. A Provincial (O.) Act (R. S. O. 1887, c. 141, the Workmen's
Compensation for Injuries Act), giving workmen on Dominion
railways, who are injured in the course of their employment,
the right under certain circumstances to recover compensation
from their employers for such injuries, is legislation affecting
civil rights in the Province and is valid. It is not legislation
within § 92, sub-section 10, exceptions a, b and c."
13. A Provincial (O.) Act (48 V. c. 26)— (There being no
Dominion statute on bankruptcy and insolvency), for the purpose
of enabling insolvent debtors to place their creditors on an
pqual footiP'', but not relieving the debtor from arrest or inter-
fering with his after acquired property is legislation respecting
property and civil rights in a Province and does not infringe on
§ 91, sub-section 21, and is valid.'
= Johnston v. Poyntz, 2 R. & G. 193 (1881).
'' Ibid — arguendo.
* Kennedy v. Toronto, 12 O. R. 211 (1886).
"Doble V. The Temporalities Board, 7 A. C. 136 (1882). See
Introductory clause. Note 24.
"C. S. R. V. Jackson, 17 S. C. R. 316 (1890).
' Clarkson v. Ontario Bank, Edgar v. Central Bank of Canada,
15 A. R. 166 (1888).
SECTION NINETY-TWO. SUH-SECTION THIIITEEN. 143
14. Such leglslrt'nn must not conflict with Dominion bank-
ruptcy legislation (§ 91, sub-section 21)."
15. A Provincial (N.S.) Act (37 V. c 104) for facilitating
arrangements between railway companies and their creditors
whereby six per cent, stock was replaced by stock bearing a
lower rate of interest, and different in other particulars, is witliin
the power of the Province under this sub-section and is not insol-
vency legislation (8 91. sub-section 21), and is valid so far as is
necessary to confirm such scheme."
10. A Provincial (Q.) Act (The Pharmacy Act of 1875) fixing
the age or other qualifications required on the part of persons
resident In the Province to entitle them to manage their own
affairs, or exercise certain professions, or branches of buslne-s,
attended with public danger or risk, though Incidentally affect-
ing trade and commerce (§ 91, sub-section 2). is valid within this
sub-section; and the Provincial Legislature may appropriate fines
to municipal or other corporations.""
17. A Provincial (N.B.) enactment (Con. Stat, of N. B. c. 75,
§ 1), providing that, as against the grantor's assignee, under any
insolvency law, a bill of sale should take effect only from time of
filing, relates to property and civil rights, and is valid.'
18. A Dominion Act (R. S. C. 1886. c. 109), limits to six
months the time for Ijringing actions against railway companies
over which Parliament has jurisdiction, for injuries caused by
the railway does not interfere with this sub-section, but is legis-
lation within § 92, sub-section 10 (clause or exception C), and is
valid.'
SU]^S^:CTIOX 14. The Adiuiuistration of Justice
in the Province, includinj^f the constitution, niaintenauce
and orp,anization of Provincial Courts, both of civil and
of criminal jurisdiction, and includinf>' procedure in civil
matters in those Courts.
" Attorney-General of Ontario v. Attorney-General for the
Dominion of Canada (1894), A. C 189, reversing In Re Assign-
ments and Preferences Act, 20 A. R. 289 (1895), and overruling
Union Bank v. Neville, 21 O. R. 152.
» Re Windsor & Annapolis Ry., 4 R. & G. 312 (1888).
'° Bennett v. Pharmaceutical Association of Quebec, 1 Dor.
Q. A. 336 (1881).
' In re De Veber, 21 N. B. R. 401 (1882).
» C. S. R. Co. V. Jackson, 17 S. C. R. 316 at p. 325 (1890).
' McArthur v. The Northern and Pacific Junction Ry. Co., et
ah, 17 A. R. 86 (1889).
14)i CANADIAN CONSTITUTIONAL LAW.
1. See § 91, introductory clause, Notes 17 and 20.
See § 91, sub-section 21, Notes 1, 5 and 12.
See § 91, sub-section 27, Notes 6, 12, 17, 18 and 19.
See § 92, sub-section 13, Notes 2, 4 and 8.
2. A Provincial (Q.) Act (34 V. c 2, § 4), regulating procedure
affecting penal laws, which such Legislature has authority to
enact, is legislation within this sub-section, and does not infringe
on the rights of the Dominion Parliament under § 91. sub-
section 27.*
3. A Provincial (Q.) Act (41 V. c. 3) prescribing the mode for
the enforcing of penalties which it imposes for a breach of its
provisions is valid under this sub-section.''
4. A Provincial (Q.) Act (34 V. c. 2) abolishing certiorari in
civil proceedings before a district magistrate for the enforcing of
penalties under the license law of the Province, is a civil matter,
and the right to certiorari is taken away."
5. A Provincial (N.B.) Act (The Act respecting Courts of
Criminal Jurisdiction over all Crimes which are not Capital), re-
lating to the attenuance of gi'and and petit jurors at these
Courts is within the power of the Province under this sub-
section, and is not legislation respecting criminal law under § 91,
sub-section 27, and is valid.'
6. A Provincial (Q.) enactment (31 V. c. 32, and 32 V. c. 29),
appointing Fire Commissioners or Marshals, with power to
investigate the origin of fires occurring in certain places,
within the Province (Quebec and Montreal), and to compel the
attendance of witnesses and examine them on oath, and to
commit to prison any witnesses refusing to answer without just
cause, is not legislation affecting the criminal law under § 91,
sub-section 27, but comes within this sub-section and is valid."
7. Qua-iv, if a Dominion Act (32-3 V. c. 29, § 13), relating to
costs in actions against justices of th3 peace is not ultra riirs of
the Dominion Parliament as relating to procedure in a civil
matter within this sub-section."
*Pope V. Griffith, 16 L. C. J. 169 (1872); Ex iiarte Duncan, 16
L. C. J. 188 (1872); Paige v. Griffith, 17 L. C. J. 302 (1873); Cote v.
Chauveau, 7 Q. ij. R. 258 (1880).
" Cote V. Chauvean, 7 Q. L. R. 258 (1880).
"Ex parte Duncan, 16 L. C. J. 188 (1872).
' R. v. Foley, Steph. N. B. Dig. 381 (1873).
"R. V. Coote, L. R. 4 P. C. 599 (1873); Hodge v. R.. 9 A. C. 117
(1883); reversing in effect Tarte v. Beique, 6 Mont. L. R. 289 (1890).
" Whit' ier v. Diblee, 2 Pugs. 243 (1874).
SECTION' NINETY-TWO, SUU-SECTIOX FOUUTEEN. 145
8. The enforcing of the payment of a judgment is a civil
right, and the mode of enforcing it is part of the administration
of justice and procedure in civil matters in the Province, and are
within the jurisdiction of the Provincial Legislature.'"
9. A Provincial (O.) enactment (41 V. c. 4, and 48 V.' c. 17)
empowering the Lieu' 3nant-Governor of the Province to appoint
justices of the peace and police magistrates is part of the system
of the administration of justice in the Province, and is intra
fi/vs.'
10. Quarc if § 51 of the Dominion Supreme and Exchequer
Courts Act (38 V. c. 11) which confers power on the Supreme
Court Judges to issue writs of habeas corpus is not ultni rhrs of
the Dominion Parliament as being ultra rirtu of this sub-section.^
11. The words of this sub-section are limited by §§ 96 and
101 of the B. N. A. Act."
12. Sub-section 27 of § 91 does not prevent a Province (O.)
from regulating ti'ials of offences against its own laws (though
such offences may be termed crimes), and the giving of evidence
in such cases, and R. S. O. (1887) c. 61, § 9, providing that where
the offence is a crime under a Provincial statute, the defendant
is not a competent nor compellable witness, does not invade the
exclusive jurisdiction of the Dominion Parliament under sub-
section 27 of section 91, and is valid.*
13. A Provincial (O.) law (53 V. c. 18) empowering a Court
(the General Sessions of the Peace) to try any offence under the
provisions of a Dominion statute, is not an invasion of § 91, sub-
section 27, but is within the jurisdiction of the Provincial Legis-
lature under this sub-section and is valid"
Note. — In other words any government may take advan-
tage c' the existence of any person or body within its limits
and iniiiose on it the same duties it might impose on its own
particular officers," even though the duties refer to
matters entirely without the competence of the l)ody so
imposed upon, apart from such express conference of powers.'
'"Ex parte Ellis, 1 P. & B. 593, judgment of Allen, C.J. (1878).
'R. V. Bennett, 1 O. R. 445 (1882); R. v. Bush, 15 O. R. 398
(1888).
= In re Sproule, 12 S. C. R. 140 (1886).
•• R. V. Bush, 15 O. R. 398, at p. 404 (1888).
♦ R. V. Bittle, 21 O. R. 605 (1892).
" R. V. Levinger, 22 O. R. 690 (1892).
"A.-G. v. Flint, 16 S. C. R. 707 (1884); The Farewell, 7 Q. L. R.
380 (1881); R. v. Bennett, 1 O. R. 445 (1882); R. v. Bush, 15 O. R,
398 (1888); R. v. Richardson, 8 0. R. 651 (1883); Richardson v.
Ransom, 10 O. R. 387 (1885).
' Valin V. Langlois, 5 A. C. 115 (1879).
H.C.H. — 10
146 CANADIAN CONSTITUTIONAL LAW.
14. A Dominion statute (46 V. c. 17) providing for the
receiving in evidence of certified copies of documents ftnd records
in the Dominion lands office, is invalid as far as it affects pro-
ceedings in civil matters, which by this sub-section are within
the jurisdiction of the Province."
15. The B. N. A. Act in giving the Provinces (B.C.) jurisdic-
tion under this sub-section, confers on them the exclusive right
to define the jurisdiction of the Courts territorially as well as
In other respects (Con. St. B. C. c. 25, § 14), and also to define the
jurisdiction of the Judges of such Courts."
16. The Province can regulate the appointment of police
Magistrates,'" and Justices of the Peace.* See Note 9 to this sub-
Dection.
17. Where an obstacle is not a public nuisance, the Provin-
cial Attorney-General is not the proper person to file an informa-
tion with a view to Its abatement."
18. A Provincial (O.) Act (R. S. O. 1877, c. 139) empowering
the Lieutenant-Governor of the Province to confer precedence by
patents upon such members of the Provincial bar as he may
think fit to select is by § 92, sub-sections 1, 4 and 14, within the
powers of the Provincial Legislatures to enact.'
The law on this question is as follows: The Federal Parlia-
ment has power to provide for the conferring of precedence on
members of the Bar in Federal Courts; the Provincial Legislatures
have power to provide for the conferring of precedence on mem-
bers of the Bar in Provincial Courts.
19. In Criminal cases no appeal to the Privy Council will be
allowed, except where some clear departure from the require-
ments of Justice is alleged to have taken place.*
In Criminal cases no appeal to the Privy Council now lies at
all, the same having been abolished in 1892.'
' McKilligan v. Machar, 3 Man. L. R. 418 (1886).
» Re County Courts of British Columbia, 21 S. C. R. 446 (1802).
"• Richardson v. Ransom, 10 0. R. 387 (1885).
'R. v. Bush, 15 O. R. 398 (1888). See Note 3 to § 96.
= Attorney-Gt ^ral for Ontario v. The International Bridge
Co., 6 A. R. 537 (ISbl).
' Attorney-General for the Dominion of Canada v. Attorney-
General for the Province of Ontario, 1897, A.C. 247, afiarming 23
A.R. 792, reversing in effect Lenoir v. Ritchie, 3 S. C. R. 575
(1879).
* Riel v. R., 10 A. C. 675 (1885).
» The Criminal Code, 55-6 V. c. 29, § 751 (1892).
SECTION NlNE'l'Y-'l'WO, SUB-SECTION FOURTEEN. 147
20. The Dominion Parliament may (by 31 V. c. 8, § 156), confer
additional jurisdiction on the Halifax Vice-Admiralty Court,
although that Cou.f was an Imperial creation.'' See sub-note to
Note 3, above.
SUB-SECTIOJSJ" 15. The imposition of punishment
by fine, penalty or imprisonment, for enforcing any law of
the Province made in relation to any matter coming within
any of the classes of subjects enumerated in this section.
1. See § 91, introductory clause, Note 18.
See § 91, bub-section 27, Notes 2 and 3.
See § 92, sub-section 3, Note 4.
See § 92, sub-section 8, Note 10.
2. Procedure hereunder is a civil proceeding.''
3. The words " Fine, penalty or imprisonment," means
" Fine, penalty and imprisonment." '
4. A Provincial (O.) Act (R. S. 0. 1877, c. 181), making police
regulations for the good government of taverns, such regulations
being merely of a local character, is within this sub-section, also
sub-sections 8 and 16 of this Section, and is valid."
5. " Imprisonment includes with or without hard labour.'"
6. A Provincial (0.) Act (52 V. c. 15) respecting appeals on
prosecutions to enforce penalties and punish offences under
Provincial Acts does not affect the Criminal law (§ 91, sub-section
27), but is legislaticn within this sub-section and if, valid."
SUB-SECTION 16. Generally all matters of a
merely local or private nature in the Province.
1. See § 91, intrcductory clause. Notes 1, 8, 19 and 20.
See § 91, sub-section 27, Notes 2 and 19.
See § 91, closing clause. Note 1.
See § 92, sub-section 2, Notes 3 and 4.
See § 92, sub-section 4, Note 1.
See § 92, sub-section 8, Notes 2, 10 and 13.
See § 92, sub-section 13, Notes 4 and 7. .
* Attorney-General of Canada v. Flint, 16 S. C. R. 707 (1884).
' R. V. Bittle, 21 O. R. 605 (1892).
« Hodge V. R., 9 A. C. 117 (1883). Ex parte Papin, 15 L. C. J.
334 (1871); 16 L. C. J. 319 (1872); Paige v. Griffith, 18 L. C. J. 119
(1873).
' Hodge V. R.. supra.
" Ibid.
' R. V. Wason, 17 A. R. 221 (1890), reversing in effect R. v,
Roddy, 41 U. C. Q. B. 291 (1877).
148 CANADIAN CONSTITUTIONAL LAW,
2. Any matter, even though of a local or private nature,
which comes within § 91 does not come within this sub-section.'
3. J., matter which is local or private is presumed to come
within this sub-section.'
4. A statute (33 V. c. 47) of the Legislature of a Province
(N.B.) authorizing the majority in a parish to raise by local
taxation a subsidy for constructing a railway beyond that Pro-
vince (which railway was already authorized by statute) is within
the powers of the Provincial Legislature under this sub-
section.*
5. A Provincial (Q.) Act (39 V. c. 52) empowering the City of
Montreal to impcse an annual tax on ferrymen or steamboat
ferries does not interfere with navigation and shipping (§ 91,
sub-secticn 10), and is valid under this sub-section."*
G. A Provincial (Q.) enactment (37 V. c. 57, § 3), empowering
a local corporation to borrow money at any rate of interest, and
to make arrangements allowing such interest either by selling
below par obligations bearing a lower rate of interest, or by
issuing them at par, bearing the agreed rate of interest is intra
vires of the Provincial Legislature under this sub-section."
7. A Provincial Legislature may give local corporations
authority to borrow money at any rate of interest already
legalized as to other persons having the right to borrow.'
8. A Provincial (Q.) Act (33 V. c. 58) to relieve a financially
embarrassed society existing in a Province does not infringe on
the rights of the Dominion Parliament under § 91, sub-section 21,
but is legislation respecting a local matter in the Province under
this sub-section and is valid.'
9. While the Dominion Parliament has power to regulate
ferries between two Provinces or between a Province and foreign
countries, a ferry wholly within a Province is a local or private
matter within this sub-section and is entirely under the control
of the Provincial Legislature."
' Section 91, closing clause.
• L'Union St. Jacques v.Belisle, L. R. 6 P. C. 31 (1874).
• Dow V. Black, L. R. 6 P. C. 272 (1875).
" Longueuil v. Montreal, 15 S. C. R. 566 (1888).
• Royal Can. Ins. Co. v. Montreal Warehousing Co., 3 Q. L. N.
155 a880).
' IW(I.
' L'Union St. Jacques v. Belisle, L. R. 6 P. C. 31 (1874).
» Longueuil v. Montreal, 15 S. C. R. 566 at pp. 573-4 (1888).
SECTION NINETY-TWO, SUB-SECTION SIXTEEN, 140
10. A Provincial (N. B.) Act (33 V. c. 47) empowering inhabi-
tants in a parisli to raise by local taxation a subsidy to promote
the construction of a Railway extending beyond the limits of
the Province is legislation within this sub-section, and does not
Interfere with the rights of i,he Dominion respecting the excepted
subjects in § 02, sub-section 10 (a), and is vall-i."
EDUCATION.
SECTION 93 is entitled *' Legislation reepectinj^
Edncation," and is as follows: —
In and for each Proviiiee tlie Legislature may exclu--
siveiy make laws in relation to education, subject and
according to the following provisions: —
1. Nothing in any such law shall prejudicially affect
any right or privilege with respect to denominational
schools which any class of persons have by law in the
Province at the Union.
2. All the powers, privileges and duties at the Union
by law conferred and imposed in Upper Canada on the
separate schools and school trustees of the Queen's Roman
Catholic subjects, shall be, and the same are hereby ex-
tendcKl to the dissentient schools of the Queen's Protestant
and Eoman Catholic subjects in Quebec.
3. Where in any Province a system of separate or
dissentient schools exist by law at the Union, or is there-
after established by the Legislature of the Province, an
appeal shall lie to the Governor-General in Council from
any act or decision of any Provincial authority affecting
any right or privilege of the Protestant or Roman Catholic
minority of the Queen's subjects in relation to education,
4. In case any such Provincial law as from time to
time seems to the Govenior-General in Council requisite
for the due" execution of the provisions of this section is
not made, or in case any decision of the Governor-General
in Council on any appeal under this section is not duly
>• Dow V. Black, L. R. 6 P. C. 272 (1875).
150 CANADIAN CONSriTUTIONAL LAW.
executed by the proper Provincial authority in that behalf,
then and in every such case, and as far only as the circum-
stances of each case refjuire, the Parliament of Canada
may make remedial laws for the due execution of the
provisions of this section and of any decision of the Gover-
nor-General in Council under this section.
1. An Imperial Act (The English Medical Act, 31 V. c. 29),
passed since Confederation providing for the registration
of a practitioner thereunder in any colony on payment of the
fees required, and also providing that the term " colony " shall
include any of Her Majesty's possessions which have a Legis-
lature, applies to Canada, and over-ridee Provincial regulations
(in R. S. O. 1877, c. 142), for the examination of applicants for
registration, notwithstanding the fact that tne I*rovinces of
Canada are given exclusive power to legislate respecting educa-
tion.*
This decision illustrates the principle that Imperial legislation
can at all times override the enactments of a colony.
2. A Province may legislate regarding separate schools, pro-
vided the rights or privileges respecting denominational schools
which class of persons had by law in the Province at con-
federation, are not prejudicially affected thereby.-
3. Under sub-section 3 of this section an appeal is given in
respect of those decisions alone which are legislative acts or
their equivalents, and not in respect of matters affecting the
every day detail of the working school.'
4. In election matters separate schools have the same right
of appeal to a county judge as public schools have.*
5. The provision contained in § 93, sub-section 1, protects
those legal rights and privileges which existed in each Province
at the Union by virtue of positive legal enactment, and not such
as were enjoyed under exceptional and accidental circumstances
and without legal right."
6. A Provincial (N. B.) Act (34 V. c. 21) providing that the
schools conducted thereunder nhould be non-sectarian, there
' R. V. The College of Physicians and Surgeons of Ontario.
44 U. C. Q. B. 564 (1879).
= Separate School Trustees of Belleville v. Grainger, 25 Gr.
570 (187S).
" Ibid.
* Ibid.
» Ex parte Renaud, 1 Pugs. 273 (1873).
SECTION NINETY-THUliE. 151
being no denominational schools at the Union, and no class of
persons having any rights or privileges respecting denomina-
tional schools at such time is valid, and the Board or Education
cannot by any regulations affect the constitutionality of such
Act."
7. If such Board had made improper regulations, or had
neglected to make proper regulations, the case falls within § 93,
sub-section 4.'
8. A Provincial (Man.) Act (53 V. c 38) abolishing the de-
nominational system of education, which was established since
the union of Manitoba with the Dominion,* but which did not
compel the attendance of pupils at public schools, and conferred
no advantage other than that of free education, and left each
denomination free to establish, maintain and conduct its own
schools was not legislation contravening § 22 of the Act admitting
Manitoba into the union, and which corresponds with sub-section
1 of this Act, except that it lias the words " or Practice " insert-
ed immediately preceding the sixth word from the end of the
sub-section, and .accordingly by-laws which authorized jissess-
ments under the Act were valid."
9. Such an Act did not prejudicially affect any legal rights
or privileges enjoyed by Roman Catholics before the Union, be-
cause it repealed Acts to the contrary passed after the Union.'"
10. A Provincial (Manitoba) Act establishing a system of
public schools entirely non-sectarian and supported by public
taxation, and repealing former Acts passed after the Union es-
tablishing a denominational system of public education, preju-
dicially affects rights and privileges enjoyed by the Roman Cath-
olics since the Union and an appeal lies to the Governor-General
in Council inulor § 22 sub-section 3 of the Act providing for the
admission of Manitoba into the Union (33 V. c. 3), which corres-
ponds identically with sub-section 4 of this section, and remedial
orders under such sub-section are made by supplemental rather
than by repealing legislation.'
"7/ ■■,'/; Maher v. Portland, 2 Cart. 486 (1874).
' Ex parte Renaud, 1 Pugs. 273 (1873).
* Manitoba came into the Dominion by virtue of 33 V. c. 3
(1870), being an Act to establish and provide for the Government
of Manitoba. (Dom.)
"Winnipeg v. Barrett, Winnipeg v. Logan (1892), A.C. 445.
" Ibid.
' Brophy v. A. G. of Manitoba (1895). A.C. 202.
152 CANADIAN CONSTITUTIONAL LAW.
SECTIOX 94. Empowers the Dominion Parliament
to render nniform any or all the Property and Civil Kights
Laws in Ontario, Kova Scotia and New Brunswick, likewise
the procedure in any or all the Courts in the Provinces,
and it also provides that after such is done the Dominion
Parliament's power re^spectine; anything in the Statute
effecting this change shall ho. unrestricted; but a condition
precedent to an Act of this natiu'c having eiTcct in any
Province is required, namely the enactment thereof bv the
Legislature of such Provinco.
This has not yet been done.
SECTION 05. Empowers the Legislature of each Pro-
vince to make laws respecting Agriculture in the Province,
also Immigration into the Province; while the Dominion
Parliament may make laws respecting Agriculture or Immi-
gration into all or any of the Provinces, and it also provides
that Provincial Legislation in case of conflict is to be
modified bv that of the Dominion.
This section provides for concurrent legislation on the parts
of the Dominion Parliament and the Provincial Legislatures.
PART 7 is entitled " Judicature," and comprises sec-
tions 96 to 101 inclusive.
SECTION 96. Empowers the Governor-General to
appoint the Judges of the Superior, District and County
Courts of each Province, except those of the Probate
Courts of Nova Scotia and of New Brunswick.
1. A Provincial (Q.) Act providing for the appointing of Dis-
trict Magistrates is valid, such Magistrate not being a District
Judge within this sub-section.*
2. A Province cannot pass an Act authorizing the Lieuten-
ant-Governor to remove a County Judge for incapacity or mis-
behaviour, nor pass an Act abolifhing the Court of Iniprachment
(which existed before the Union) for the trial of charges against
County Judges."
» R. V. Horner, 2 Steph. Dig. 450 (1876).
"Re Squier, 46 U. C. Q. B., 474 (1882).
SECTION NINETY-SIX. 153
The modes of removing County Court Judges are set forth
In Re Squkr, 46 U. C. Q. B. 474.
3. A Provincial (N.B.) Act (39 V. c. 5) passed since the Uulou
provided for the establishment of Courts to try actions in cer-
tain cases before Commissioners appointed by the Lieutenant-
Governor in Council, la valid because the Commissioners are not
Judges but Justices of the Peace whose appolatments the Pro-
vincial Legislatures can regulate.*
4. The rule is laid down in In re Wilson v. Mcltrnvc, 2 O. R. 118
(1883), that the Province can empower any officer it finds within
its jurisdiction to execute its laws; and the fact that such officer
is likewise a Dominion appointee is immaterial.
SECTION 97. Declares that until the laws respect-
ing; property and civil rights in Ontario, Nova Scotia and
New Brunswick, and Court procedure in those Provinces
are made uniform, tlie Judges of the Provincial Courts shall
he selected from the respective Provincial bars.
The above laws not having been rendered uniform (see note
to § 94) the alternative method of selecting the Judges provided
by this section now prevails.
SECTION 98. Provides that the Quebec Court
Judges shall be chosen from the Quebec bar.
SECTION 99. Fixes the Superior Court Judges
tenure of office as during good behaviour, but renders them
removable by the Governor-General on an address from
the Senate and House of Commons to that effect.
In England the Julges are impeachable before Parliament,
but in Canada the method provided for their removal is that
fixed by this section.
As to the method of removing County Court Judges, see
Note 2 to § 96, supra.
Section 100. Provides that the Dominion Parliament
shall fix the salaries, allowances and pensionsj of the Judges
of the Superior, District and County Courts (except of those
of the Probate Courts of Nova Scotia and New Brunswick,
* Ganong v. Bayley, 1 Pugs. & Burb., 324 (1877), see also § 92.
sub-section 14, Note 16.
" Smith v. Hempstead, 16 L. C. J. 140 (1872).
•■' Clarkson v. Ryan, 17 S. C. R. 251 (1890).
164 CANADIAN CONSTITUTIONAL LAW.
likewise of those of the AchniraUy Co\irts where they avo
paid by salary).
SECTION 101. Provides for the estahlishmeut by
the IJoniinion Parliament of a general Appellate Court for,
and any additional Courts in, Canada.
1. In 1878 was established the Supreme Court of Canada, hav-
ing appellate jurisdiction from all the Provinces. That Court
consists of a Chief Justice and 5 Puisne Judges.
2. The Dominion Parliament can confer authority on Courts
ajid Judges in Canada to make orders for the examination of any
witness or party respecting any civil or commercial matter pend-
ing before any British or Foreign tribunal, and a Dominion Act
(31 V. c. 76), to this effect Is v.ilid." But whether or not the
British or Foreign tribunal will take advantage of such legisla-
tion, it is submitted, is a matter of international comity.
3. A Provincial (O.) Act (R. S. O. 1887, c. 42) having provided
that in certain cases no appeal shall lie to the Supreme Court of
Canada without special leave, does not bind the Supreme Court
of Canada, because the Provincial Legislatures have jurisdiction
over procedure in civil matters only in Provincial Courts, and
not in Dominion Courts, the latter of which this is."
By 58-9 V. c. 44 (1895), (Imp.) the Chief Justice of the Supreme
Court of Canada is accorded a seat In the Judicial Committee of
the Privy Council, which tribunal is the Court of last resort as far
as the British Colonies are concerned. (This corresponds with
the House of Lords which is the tribunal of last resort for the
United Kingdom.)
The Supreme Court of Canada sits at Ottawa.
PAKT 8. Is entitled " lie venues, Debts, Assets,
Taxation," and comprises sections 102 to 126 inclusive.
SECTION 102. Creates a Consolidated Revenue
Fund for Canada out of all duties and revenues over which
the various Legislatures before the Union had power of
appropriation except those parts thereof which are
reserved to the Provinces or are raised by special powers
conferred by the B. N. A. Act.
See § 109. Note 2.
SECTION 103. Makes the expenses of collecting
and managing such revenue (subject to audit) a first charge
thereon.
SECTION ONE HUNDRED AND FOUK. 165
SECTION 104. :Makcs the interest on the public
debt of the several Provinces the second charge thereon.
SECTION 105. Fixes (til) 'ae Dominion Tarliament
shall alter it) £10,000 as the Governor General's salary,
and makes it the third charge thereon.
SECTION 100. Declares that snbject to thene
charj>es thereon the Dominion Parliament shall apply this
fund to the j)viblic service.
SECTION 107. Declares that all stocks, cash,
bankers' balances, and secnrities for money, belonginp,- to
each Province at the time of the Union, exce])t as other-
wise provided in the B. N. A. Act shall belong to Canada,
and be taken to reduce the res])ective Provincial debts as at
the Union.
SF.CTION 108. Appropriates to Canada the Public
Works and property of each Province enumerated in Sche-
dule 3 to the Act.
See § 91, sub-section 12, Note 5.
See§ 109, Note 3.
1. A Dominion Act (37 V. c. 16), which authorized a transfer
of a railway subject to an obligation on the part of Provincial
Government at the time of the Union to a company, quwrc if it
was uitra vires of the Dominion Parliament to extinguish the
rights of the transferee under said agreement. (But it was held
that no existing instrument was affected).'
2. The "Public Harbours" here referred to include all har-
bours including the bed and soil thereof, which the public have
the right to use, and are not limited to such as at Confederation
had been artificially constructed or improved at the public ex-
pense, and where a grant of part of the foreshore of a natural
harbour used as such by the public was made by the Provincial
Government of Prince Edward Island subsequent to the admis-
sion of that Province into the Union, such grant was held
invalid."
^Western Counties Railway Co. v. Windsor and Annapolis
Railway Co., 7 A. C. 178 (1882).
»Holman v. Green, 6 S. C. R. 707 (1881). McDonald v. Lake
Simcoe Ice and Cold Storage Co., 26 A. R. 411 (1899).
156 CANADIAN CONSTITUTIONAL LaW.
i The following is Schedule 3.
Provincial public works and property to be the property of
Canada.
1. Canals with lands and water power connected therewith.
2. Public harbours.
3. Lighthousps and piers, an J Sable Island.
4. Steamboats, dredges and public vessels.
5. Rivers and lake improvements.
G. Railways and railway stocks, mortgages and other debts
due by railway companies.
7. Military roads.
8. Custom houses, post offices, and all other public buildings,
except such as the Government of Canada appropriate for the
use of the Provincial Legislatures and Governments.
9. Property transferred by the Imperial Government, and
known as Ordnance Property.
10. Armouries, drill sheds, military clothing and munitions of
war, and land set apart for general public purposes.
4. In McDonald v. I^ake Simcoe Ice and Cold Storage Co., 26 A. R.
411, at p. 421 (1899), it is pointed out that the Imperial Privy
Council in " The Fisheries Case " (see § 91. sub-section 12, Note 5),
" expressly abstained " from exhaustively defining a public har-
bour. But the McDonald cas3 throws great light on the question.
It was there held that a small bay in Lake Simcoe, containing a
wharf, where, with the wharf-owner's permission, vessels called,
thera being no mooring ground, and little shelter, was not a
public harbour. See the judgments therein; see also the exhaus-
tive argument of W. Macdonald, Q.C., for the plaintiffs in that
case in which all the authorities on the subject are collected and
reviewed.
SECTIOX 109. Gives all lands, mines, minerals and
royalties belonging to I'pper and Lower Canada, Nova
Scotia and New Brnnswick at the Union, and snms due
therefor to Ontario, Qnehec, Nova Scotia and New Bruns-
wick respectively snbject to existing trusts and interests.
1. When by treaties in 1850 the Governor of Canada as repre-
senting the Crown and the Provincial Government obtained the
cession from the Ojibeway Indians of lands occupied as Indian
reserves, the beneficial Interest therein passing to the Provincial
Government, together with the liability to pay to the Indians
perpetual annuities, such lands being within Ontario, the bene-
ficial interest therein vested in Ontario by § 109 of the B. N. A.
Act, 1867.
SECTION ONE HUNlJltEl) AND NINE. 157
Such anauitles having been capitalized, the Dominion uh-
Bumed liability in respect thereof under §111, and thereafter ihe
amounts were increased. Held, that liability for such Increased
amounts was not so attached to the ceded lands and their pro-
ceeds as to form a charge thereon In the hands of the Province
under gl09. They must be paid to the Dominion with recourse
to Ontario and Quebec jointly under sections 111 and 112 in ihe
same manner as the original annuities."
2. Lauds in a Province (O.) I'schcnted to tiie Crown for fail-
ure of heirs belong to the Province and not the Dominion,
revenue derived in such a way being casual (which is governed
by § 109) and not general (which is governed by S 102.) Such
revenue was before the Union subject to the disposal, not of the
Crown but of the Canadian Legislature. It is as "Royalties"
that escheats are considered under this section.'"
3. This section gives to each Province the entire beneficial
interest of the Crown in all lands within its boundaries, which,
at the time of the union, were vested in the Crown, subject to
such rights as the Dominion can maintain under sections 108 and
117. And the Etominion power of legislation over lands reserved
for the Indians is not inconsistent with the beneficial Interest
of the Province therein. Where, in 1763 the Indians of certain
tribes, had reserved to thein as hunting grounds parts of lands
unceded and unpurchased by the Crown, with a provision that
purchases from them must be by the Crown, and not a private
person; and in 1873 such lends situate in Ontario were for certain
hunting and fishing rights surrendered to the Dominion Govern-
ment for the Crown, it was held that the first tenure of the In-
dians depended on the good will of the Crown, and that at the
Union such lands vested, by this section, in the Crown, subject
to the Indian's title.'
4. Where public lands are conveyed by a Province (B.C.) to
the Dominion, no Implication arises that there is also a transfer
by the Province of its interest in the revenues arising from the
Crown's prerogative rights. The precious metals in, upon and
under such lands belong to the Ci-own (not being incidents of the
land) and under this section beneficially to the Province, and
an intention to tranfer them must either be expressed or neces-
sarily implied."
• Attorney-General for the Dominion v. Attorney-General for
Ontario; Attorney-General for Quebec v. Attorney-General for
Ontario (1897), A. C. 199, reversing in part 25 S. O. R. 434.
•"Attorney-General for Ontario v. Mercer, 8 A. C. 767 (1883).
' St. Catharines Milling and Lumber Co. v. The Queen, 14 A.
C. 46 (1888).
' Attorney-General of British Columbia v. Attorney-General
of Canada, 14 A. C. 295 (1889).
158 CANADIAN CONSTITUTIONAL LAW.
SECTION 110. Gives all as-scts connected with por-
tions of the public debt of each Province as are assumed
by such Province to that Province.
SECTION 111. Makes Canada liable for the several
Provincial debts existinp,' at the Union.
See § 109, Note 1.
SECTION 112. Makes Ontario and Quebec jointly
liable to Canada for the excess of the debts of the Province
of Canada above $62,500,000, the same to bear interest at
five per cent, per annum.
See § 109, Note 1.
SECTION 113. Gives Ontario and Quebec jointly
the assets set out in Schedule 4, bein^ y)roperty belon^'ing;
to the Pi'ovince of Canada.
The following is the fourth schedule.
Assets to be the property of Ontario and Quebec conjointly.
Upper Canada Building FXind.
Lunatic Asylums.
Normal Schools.
Courts Houses in Alymer, Montreal, Kauiouraska, Lower
Canada.
Law S'ociety, Upper Canada.
Montreal Turnpike Trust.
University Permanent Fund.
Royal Institution.
Consolidated Municipal Loan Fund, Upper Canada.
Consolidated Municipal Loan Fund, Lower Canada.
Agricultural Society, Upper Canada.
Lower Canada Legislative grant.
Quebec Fi''e Loan.
Temiscouata Advance Account.
Quebec Turnpike Trust.
Education — East.
Building and Jury Fund, Lower Canada.
Municipalities Fund.
L<. ver Canada Superior Education Income Flind.
SECTION 114. Fixes the liability of Nova Scotia to
Canada as the excess of its oublv cebt abov^ $8,000,000,
the same to bear interest at five per cent, per a inum.
SECTION ONE HUNDRED AND FIFTEEN. 159
SECTION 115. Fixes the lial)ility of Xew Bni-=-
wick to Canada as the excess of its debt above $7,00(),C
the same to bear interest at five per cent, per anniuu.
SECTION 116. Provides that in case the public
debts of Nova Scotia and New Brunswick do not at the
Union amount, as above, to $8,000,000 and $7,000,000
respective!}' these Provinces are to receive half-yearly in ad-
vance, from the Dominion Government five per cent, per
annum interest on the difference between such sums and
their respective debts.
SECTION 117. Reserves to the Provinces all their
public property not disposed of by the P>. N. A. Act,
subject to Canada's right to assmne part thereof for forti-
fications or defence.
See § 109, Note 3.
SECTION 118. Provides for the annual payment by
Canada of $260,000 to the Provinces to support their
respective Governments and Legislatures, as follows :~
Ontario $80,000
Quebec 70,000
Nova Scotia 60,000
New Brunswick 50,000
and also 80 cents per head of po[)ulation as found l)y
each census, but in case of Nova Scotia and New Bi'uns-
wick at this rate for not over 400,000 of a population;
from which sums are to be deducted all sums due on the
public debt of each Province above the amounts provided
for in the B. N. A. Act.
SECTION 119. Gave New Brunswick $63,000 a
year (payable half yearly) for 10 years from the Union,
less five per cent, per annum interest on the amount which
its debt is less than $7,000,000.
160 CANADIAN CONSTITUTIONAL LAW.
SECTION 120. Enacts that until the Dominion Par-
liament otherwise provides the form and manner of making;
these pa^'ments shall be ordered by the Governor-General
in Council.
SECTION 121. Establishes Free Trade in natural
products and manufactured articles among tlie Proviiices.
SECTION 122. Continues until altered by the
Dominion Parliament the customs and excise laws.
These laws have been frequently alt' ed.
SECTION 123. Provides that where duties are
leviable at the Union on goods in any two Provinces, such
^(. jds may be imported from one of them to the other on
proof of payment of duty thereon in the exporting]; Pro-
vince, together with the further duty leviable in the im-
porting- Province.
SECTION 124-. Leaves unaffected by the B. N. A.
Act New Brunswick's right to levy lumber dues as provid-
ed in R. S. X. B. 0. 15, or amending Acts, but the other
Provinces shall not be subject to such dues.
SECTION 125. Exempts from taxation all Dominion
property.
SECTION 126. Forms a Provincial Consolidated
Revenue Fund in each Province out of the parts of the
duties revenues over which each Province had power of
appro])riation before the Union or as or by the B. N. A.
Act reserved to the Provinces.
PART 9. Is entitled " ]\liscellaneous Provisions,"
and comprises sections 127 to 144, inclusive.
SECTION 127. Affected certain of the eaily
Senators, but this section is repealed by The Statute Law
Revision Act as spent.^
» 56 V. c. 14 (Imp.) . ;
SECTION ONE HUNDRED AND 7WENTY-E1GHT. 161
SECTION 128. Provides for the takinj^^ of the oath
of allegiance, set out in Schedule 5 to the Act, by Senators,
Members of Parliament, of the Legislative Council, and of
the Legislative Assembly, before taking a seat. Every
Senator, and each Quebec Legislative Councillor, shall take
the declaration of qualification accom])anying said oath of
allegiance.
The oath of allegiauce is as follows:
"I, A. B., do solemnly swear that I will be faithful and bear
true allegiance to Her Majesty Queen Victoria." (Or whomso-
ever the Sovereign may be.)
The declaration of qualification is in the terms of § 23 of the
B. N. A. Act, except that it oii^its all reference to age and na-
tionality.
SECTION 129. Continues (except as the B. N. A.
Act otherwise provides) all laws, Courts, judicial, adminis-
trative and ministerial officers in the four Provinces, sub-
ject to alteration by the proper authority.
See § 41. Note 2.
See § 91, sub-section 2, Note 15.
SECTION 130. Transfers to Canada all officers
whose duties pertain to matters outside of those reserved
to the Provinces. This is subject to change by the
Dominion Parliament.
SECTION 131. EmpoAvers the Governor-General
(until the Canadian Parliament otherwise ])rovides) to
appoint all officers required for the execution of the B. N.
A. Act.
SECTION 1 32. Gives the Dominion Parliament and
Government all powers required for performing interna-
tional obligations due by the Dominion, or by any Pro-
vince as X)art of the Empire.
The Imperial Extradition Act of 1870 is in force in Canada,
notwithstanding this sub-section.*
* Ex parte Worms, 22 L. C. J. 109 (1876).
H.C.H.— 11
162 CANADIAN CONSTITUTIONAL LAW.
SECTION 133. Establishes dual (English and
French) languages in tlie Dominion Parliament, and
Quebec Lep,islature, with privilep,e of using cither language
in pleadings or process of any Court of Canada established
under the B. N. A. Act, or of any Court of Quebec.
Both of these languages are employed in the Supreme Court of
Canada.
SECTION 134. Empowers each of the Ontario and
Quebec Lieutenant-Governors (until the Ontario or Quebec
Legislatures otherwise provide), to appoint his executive
government otficere and fix their, and their clerk's, duties.
SECTIOX 135. Transfers to such appointees the
powers and duties vested in the existing executive ofhcers,
subject to change by the Legislatures.
SECTION 136. Enacts that subject to Legislative
chanoo, the Ontario and Quebec (ireat Seals shall be of the
designs used respectively in Upper and Lower Canada
prior to their L'^nion in 1841.
SECTION 137. Extended the temporary Acts of
the Province of Canada to the end of the next ensuing
session of that body having power to legislate respecting
such Acts.
A temporary Act (28 V. c. 30) of the old Province of Canada
empowered the Governor to appoint Police Magistrates. Held,
a Province (O.) has power by this § and § 65 to enact legislation
continuing same.''
SECTION 138. Saves from invalidation a confusion
in the use of Upper and Lower Canada after the Union
instead of Ontario and Quebec in legal or other proceed
ings.
SECTION 139. Gives force to ]n'oclaniations, under
tile Great Seal of Canada, issued before the Union, but to
take effect after it.
° R. V. Reno and Anderson. 4 P. R. 281 (1868).
SECTION ONE HUNDRED AND FORTY. 163
SECTION 140. Provides that any proclamation
allowed by any Act of the Province of Canada before Con-
federation to be issued, may bo issued thereafter by the
Ontario or Quebec Lieutenant-Governor as its subject
matter may require.
SECTION 141. Provides that until the Canadian
Parliament otherwise enacts, the Penitentiarv of Canada
shall be that of Ontario and (i^uebec.
SECTION 142. Provides for an arbitration, and the
appointment of three arbitrators, one for each of the
Provinces, and one for the Dominion, to settle the division
and adjustment of accounts between Upper and Lower
Canada.
No appointment made under this section can be revoked; and
an award by two, though the third had affected to resign, was
held valid."
SEC^TION 143. Provides for the division of books
and documents of Upper and Lower Canada, between On-
tario and Queljcc, and also provides for the admission of
extracts or copies therefrom, certified to by the official
havinii' charge of same, as evidence.
SECTION 144. Empowers the Quebec Lieutejiant-
Ciovernor to constitute townships in the unsettled parts of
(i^uebec.
PART 10. Consisted of Section 145 and was entitled
"Intercolonial Railway."
SECTION 145. Provided for the commencement
of a railway joininp; the St. Lawrence Eiver with Halifax.
This having been done many years since, this section is now
of no further service and consequently it was repealed.'
• m 1-e Ontario and Quebec Arbitration, 4 Cart. 712 (1878).
'See The Statute Law Revision Act, 5G-7 U. C. 14 (Imp.)
(1893).
164 CANADIAN CONSTITUTIONAL LAW.
PART 11. Is entitled Admission of other Colonies,
and contains sections 14G and 147, the closing' sections ot"
the Act.
SECTI0:N' 146. Provides for the admission into the
Union of NcAvfoundland, Prince Edward Island, British
Columbia, Rupert's Land and the North- West Temtory,
upon addresses from their own legislatures, together with
an address from the Dominion Houses of Parliament.
Of these Prince Edward Island, British Columbia and part of
North-West Territory have been admitted into the Union. Their
admission has been considered elsewhere.*
SECTIOX 147. Provides for the increase in the
Senate of four members each for Newfoundland or Prince
Edward Island, should either of these Provinces be ad-
mitted, with, in case of Newfoundland's admission, a
normal number of seventy-six, and maximum number of
eighty-two, but Prince Edward Island is to be numbered
with Nova Scotia and New Brunswick, and instead of the
two latter Provinces each having 12 members," the distri-
bution is to be e/ffected thus: —
Nova Scotia 10
New Brunswick 10
Prince Edward Island 4
24
without further increase except as is provided by § 20 of
the B. N. A. Act.
'See Part I., at p. 61 et siH]., .tupra.
" See section 22, ante.
SCHEDULES. 165
SCHEDULES.
SCHEDULE I. to the Act ciiunierated the elcctural
districts of Ontario. But § 40 ]irovidcd for their alteration
by the Canadian Parliament, and such having been done,
this Schedule is of no further use, and is consequently not
reproduced.
SCHEDULE II. to the Act enumerates the fixed elec-
toral districts of Qiiebcc, which arc 12 in number.
See § 82.
SCHEDULE III. to the Act enumerates the Proxiu-
uial Public Works and Property which become the Pro-
perty of Canada.
See notes to §108.
SCHEDULE IV. to the Act enumerates the assets
which becomes the joint Property of Ontario and Quebec.
See notes to § 113.
SCHEDULE V. to the Act contains the oath, of al-
legiance, likewise the declaration of qualification fov ( ertain
of the Legislators to make.
See notes to § 128. '
166 CANADIAN CONSTITUTIONAL LAW.
AMENDMENTS.
Tlie British l^ortli America Act has been four times
supplemented and amended, as follows: —
First, by P>4-35 V. c. 28 (1871), empowering the
Parliament of Canada to establish new Provinces in any
territories inclutlcd in Canada, to alter the limits of Pro-
vinces, and to provide for government in any territory
not included in any Province. It also confirmed the doubt-
ful Canadian legislation respecting the governing of
Kupert's Land and the Xorth-West Territory, and establish-
ing the Province of Manitoba (32-3 V. c. 3; 33 \^ c. 3;
Canada). It too prevented Canada from ciianging either
this legislation respecting- Manitoba, or any future li^gis-
lation establishing other Provinces, excent to the extent of
changing the Provincial boundaries. But the right to
make laws respecting the qualification of electors and mem-
bers of the Manitoba Legislative Assembly it gave to the
Manitoba Legislature.
Second, by 38-9 Y. c. 38 (1875), which substituted a
new section for 5 18 of the B. X. A. Act, and confirmed
31 V. c. 24 (Can.), being an Act to provide oaths to
witnesses being administered in certain cases for the purpose
of either House of Parliament, from its assent.
Third, by 40-50 V. c. 35 (1880), empowering the
dominion Parliament to provide for representation of tlu^
Territories (not inchuled in any Province) in the Senate
and Commons. It also validated any prior Act to tliis effect.
Fourth, by 56 V. c. 14 (1893), the Statute Law Revi-
sion Act, which repealed some of the obsolete and s]ient
sections of the B. ]^. A. Act, 1867 — an Act to which refer-
ence has been made in this treatise wherever any of its
provisions applied.
INDEX.
A.
Acadia, early history of, 20, 21, 25.
Adniinstrator of tlie Yukon; salary of the, 91.
Administrator of the Yukon; appointment of, 94.
Agriculture, 67.
Ailleboust; M. de, appointed Governor of the Company of the
Hundred Associates, 9.
Algoma; manhood franchise established in, 87.
Aliens; see naturalization and aliens, 121.
Amendment of contribution of Province; see constitution of Pro-
vince, amendment of, 128.
Amendments to B. N. A. Act, 166.
American constitutions, the, 74, 75, 76, 77.
America; usage in colonies of, 21.
Amherst; General, undertakes the establishment of a govern-
ment, 23.
Annapolis, 20.
Appropriation bills, to originate in House of Commons, 90.
Arbitration between Upper and Lower Canada, provided for, 163.
Argenson, opposes Laval, 11.
Assent to Bills, powers of Governor respecting, 90.
Asylums, jurisdiction over, vested in Provinces, 132.
Avangour, opposes Laval, 11.
B.
Bahamas, Columbus lands at, 1.
Banking, jurisdiction as to, 114, et seq.
Bankruptcy and insolvency, laws as to, 116.
Bathurst, Lord, 45.
Beacons and buoys, jurisdiction as to, in Dominion Parlia-
ment, 111.
Bigamy, law as to, 124, 125.
Bills, assent to; see Assent to Bills, 90.
Bills, assented to, to be sent to a Secretary of State, 90.
Bills reserved, law as to, 90.
Bills reserved, notification of, 90.
Bills of exchange, 116.
168 INDEX.
Bishop's Court, established at Quebec, 15.
British Columbia, 61, 72, et acq.
British North America Act, 3, 4, 63, 64.
docs not expressly repeal prior enactments, 69.
authorities created by, 69.
outline of, 72.
repealed in part in 1893, 73.
examination of, in detail, 74 et aeq.
not construed rigorously, 74.
how to be read, 74.
compared with English and American Constitutions, 74.
amended, 164 et seq.
Burton, Col., 24.
C.
Cabot, John, 1.
Campbell, Sir Colin, 51.
Canada, 1, 54, 59, 60, 62, 63.
Canadian Constitution, 74, 75, 76, 77.
Cape Breton, 20, 25.
Capitals, provisions respecting the, 94.
Carleton, Sir Guy, 34, 38.
Cartier, Jacques, 1.
Cartwright's cases, 72.
Censitaire, 16, 17.
Census, decennial, provisions respecting, 79.
Census and statistics, 109.
Champlain, 7, 10.
Charities, see Asylums, 132.
Charlesbourg Royal, 2.
Charles, II.. 60.
Charlottetown. 39.
Chastes, de. 6.
Chauvin, 6.
Chignecto, 20.
Civil rights in the Province. See Property and CiTil Rights, 140.
Clarke, Sir Alured, 42.
Clement, Mr., opinion of, 69, 110.
Clergy Reserves question. 46. 56.
Cobequid, 20.
Coinage, jurisdiction as to. 114.
Colbert. 19.
Colborne, Sir John, 48.
Colebrook. Mr.. 50.
Colonial Tax Repeal Act. 41.
Columbus, Christopher, 1.
INDEX. 169
Common Law, altered respecting attachment of Provincial offi-
cers' salaries, 110.
CommonB, House of. See House of Commons, 79.
Companies, incorporation of, 139.
Company of New France. 12.
Confederation of Canada, 60, 61. 62, 63, 64.
Constitutional Act, 36, 37, 53, 63.
Constitutional Law, function of, 67.
Constitutional Law, Canadian, function of, 67.
Constitutional, definition of, 68.
Constitution of the Province, amendment of, 128.
of Canada, compared with that of England and the United
States, 74 ct ,w;•. •
constitution of, 8b. ; '■'-.
calling of, 87. * ' '
Speaker of, election of. 88
INDEX.
171
(louse of Commons - Continued.
Speaker of, salary of, 88.
absence of, from chair, 88.
Deputy of, 88.
quorum of, 88. . '
voting In, 88.
duration of, 89.
Increase of membership of, 89.
Howe, Joseph, 51.
Hudson's Bay Company, 60, 61.
Huguenots, 10.
Hundred Associates, Company of the, 8, 9, 10.
Imperial Parliament, jurisdiction of, respecting mlUtla and
navy, 107, 110.
Imperial Statutes, In! force In Canada, 70.
Ontario, 70.
Manitoba, 71.
British Columbia, 71.
North-West Territories, 71.
Quebec, Nova Scotia, New Brunswick, and Prince Edward
Island, 71.
Indians, Dominion Parliament, controls legislation, as to, 121.
Inland Fisheries, 112.
Insolvency. See Bankruptcy, 67, 116.
Intendant, 13, 14, 19.
Interest, jurisdiction as to, 116.
Intoxicating liquors, traffic In, 102, 103, 104, 135 et scq.
Intra Vires, presumption as to, 100.
Isabella of Castile, 1.
J.
Judges, jurisdiction over, 152.
Justice, administration of, 143.
K.
Kingston, 54.
L.
Labrador, 1.
Laval, 11. 14. 18.
Les Mines. 20.
172
INDEX.
Legislative Assembly, of Ontario, Constitution of, »4.
duration of, 97.
membership of, 94. .
calling together of, 96.
yearly session of, 98.
Legislative Council, Quebec, Constitution of, 95, 96.
membership of, 95.
vacancy in, 95.
powers of, 95.
quorum of, 96.
voting in, 96. '
Speaker of, 96.
Legislative Assembly of Quebec, calling together of, 96.
duration of, 97.
yearly session of, 98.
liieutenant-Governor, 72.
powers of, 97.
appointment of, 90.
represents Queen in Provinces, 91.
acts alone or with advice of council, 91.
tenure of office of, 91.
when removable from office, 91.
salary of, fixed by Dominion Parliament, 91.
to take oath of office, 91.
to take oath of allegiance, 91.
extension of provisions respecting, 92.
references to construction of, 94.
of Quebec, powers of, 96.
Livins, Chief Justice. 34.
Lower Canada, 39. 40, 41. 42, 43, 4b, 46. 47, 56, 62. 63, 72, 78, 79
et seq.
Manitoba. 61.
Mansfield. Lord, 22.
Marine hospitals, jurisdictions as to. 112.
Marriage and Divorce, jurisdiction respecting, 121, 140.
Mas6res, 23. ' '
Metcalfe. Lord, 55.
Militia and military service, jurisdiction as to, 109.
Mines and minerals, distribution of, 156.
Miquelon, 25.
Montmagny, M. de, 9, 11.
Montreal, district of, 23, 24.
Monts, de, 6.
Municipal institutions in Province, jurisdiction as to, 132 et $eq.
Murray, Attorney-General. 22, 25. 26.
INDEX. 173
N.
Naiuralization and aliens, jurisdiction respecting, 121.
Naval service, jurisdiction respecting, 109.
Navigation and shipping, ill.
public right of, 112.
New Brunswick, 36, 50, 52, 59, 60, 69, 72, 159, 164.
Newfoundland, 25, 52, 62.
provision as to admission into Union, 164.
Niagara, 44.
Ninety-two resolutions. 48.
North-West Company of Canada, 61.
North-West Territory. ^0, 61.
Nova Scotia, 20, 22, 25, 36, 50, 51, 52, 59, 60, 69, 72, 158.
0.
Ofllceholders, disqualified from sitting in legislatures of On-
tario and Quebec. 97.
Oflicials of Etominion Government, salaries of, jurisdiction as
to. 110.
Offices, Provincial, establishment of, jurisdiction as to, 131.
Ontario, liability of, to Canada, 158.
Order in Council, 72.
Ottawa, seat of government in, 83.
P.
Palos, 1.
Pari Materia, Acts In, may be looked at, 101.
Paris, custom of, 15, 35.
Paris, parlement de, 15.
Paris, treaty of, 23, 25, 27, 29, 34.
Parliament, Canadian, first session of, 83.
Parliament, Canadian, annual session of, 83.
Parliament of Canada Act, amends B. N. A. Act (1867), 83.
Parliament of Canada, exclusive powers of, 99 et seq.
Parliament, Imperial, 41.
Paterson, Walter, 38.
Penitentiaries in Canada, 126.
Penitentiaries, jurisdiction over, 126.
Pitt, William, 37.
Plenary powers, are possessed by Dominion and Provincial legis-
lations, 101, 105.
Pontgrave, 6.
Postal, service, 109.
174 INDEX.
«
Prerogatives of Crown, 82.
of Crown cannot be withdrawn except by express words, 97.
of Governor-General, 81.
of Queen, 79.
Prince Eklward Island, 25, 52, 59, 62, 72.
Prisons and reformatories, jurisdiction over, 132.
Privileges of House of Commons, 83.
Privileges of Senate, 83.
Privy Council, constitution of, 81.
Property and civil rights in the Province, 140.
Provincial Cou»'ts, legislation imposing new duties on, 102.
Provincial Legislatures, exclusive powers of, 99 et aeg, 127 et seq.
Provincial Legislatures, exclusive powers of, Rule as to 99.
Public credit, borrowing money on, 109.
Public debt and property, 106.
■Public lands, Jurisdiction respecting, 131.
Punishment for offences against Provincial laws, 147.
Q.
Qualiflcations of Senators, 84.
Qualiflcattons of Quebec Legislative Councillors, 95.
Quarantine, 112.
Quebec. 60.
Quebec, Act, 3, 30, 31, 39, 42.
Quebec, capitulation of, 23.
Quebec, district of, 15. 23.
Quebec, liability of, to Canada, 158.
Quebec, resolutions, 61. 74.
Queen, the, prerogative of, 79, 80.
R.
Reoollets, order of, 10, 23.
Reformatories. See Prisons and Reformatories, 132.
R6gue Milltaire, 24.
Repeal of Provincial legislation is not effected by Dominion
legislation. 103.
Representation, provisions respecting, 89.
Residuum of power, law as to, 76, 126.
Richelieu, 8, 13, 16.
Roberval, Sieur de, 2. 5. '
Roche, de la. Marquis. 2, 5. .
Royal assent, 90.
Royal council, 16.
Royal proclamation, 1.
Rupert's Land, 60, 61.
Russell, Lord John, 48, 49, 51, 53.
INDEX. 176
S. ... > -;rT-
!.it
Schedule to B. N. A. Act, first, 87, 165. .p.-,
second, 80. 165.
third, 156. 165.
fourth, 158, 165.
fifth, 161, 165.
Seignior, 16, 17.
Senate, 72.
powers of the. 86.
Speaker of the, how appointed, 86.
voting In the. 86.
Quorum of the. 86.
Senators, no limit of number of, 84.
distribution of. 84.
Qualifications of. 84.
qualifications of, judged by Senate, 86.
how Ruiniuoned, 84.
how first body summoned, 84.
addition of, 85.
limitation of addition of. 85.
resignation of, 85.
tenure of office of. 85.
vacating of seats of, 85.
nominating of, 86.
Sewell, Chief Justice. 46.
Sherbrooke, Governor. 45.
Smith, William, made Chief Justice, 35.
Solssons, Comte de, 7.
Spain, 1.
Statute Law Revision Act,, 73 et acq.
St. John Isla.nd. 25.
St. .John's, 52.
St Pierre, 25.
Sulpiclan Fathers, 11, 23.
Superior Council, 17.
Swiss settlers, 21.
Sydenham, Lord, 54, 56.
T.
Talon, 19.
Taxation, direct, jurisdiction as to, 128 et neq.
Taxation, exemption of Dominion property from, 160.
Tax bills, to originate in Commons, 90.
Taxation, rights of Dominion as to, 108.
Temporary Acts, extended 162,
176 INDEX.
Thomson, Poulett, 49.
Three Rivers, 15, 23.
Trade and Commerce, 106 et aeq.
Trading Companies, 3. ^ , V
V. .^'/-^ -■'■;::'
Ultra Vires, rule as to, 100, 101.
" Unconstitutional," definition of, 68.
Union Act, 53, 54, 55, 62.
United Empire Loyalists, 36.
United States, constitution of, 74 et aeq.
Upper Ctoada, 39, 40, 41, 42, 43, 46. 47, 56, 59, 62. 63, 72, 78,
79 et aeq. ,
Utrecht, treaty of, 20, 25. :
Vancouver's Island. 61.
Verrazzano. Jno., 1.
W.
Weights and measures, jurisdiction as to, 116.
Wilmot, L. A., 49.
Yukon, administrator of. See Adminstrator of Yukon. 91.