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L RIGHTS OF PERSONS. TORONTO : THE CARSWELL Co. (Ltd.) PUBLISHEllS, Etc. 1890. Entered according to Act of the Parliament of Canada, in the year one tliousand oiRbt hundred and ninety-six, by Thb Carbwbll Co. (Limited), in th» office of the Minister of Agriculture. PRlNTtO BV The UAUnWKLL Co. Ltd. 22. 30 Adelaide St. K. Toronto. THIS WORK IS DEDICATED TO MY FATHER. IN GRATEFUL AND AFFECTIONATE RECOGNITION OF THE CARE AND ANXIETY HE BESTOWED ON MY liDUCATION AND OF OUR SYMPATHY IN TASTES AND SENTIMENTS. IIP I" I mmmmrw^mm mmm PREFACE. IN compiling,' tlu'sc pajjeH I liavi' Imhii ^niidt'd by the following principles: While lilackstoue'H ('oinmeutarieH are the fouuda- tioD of the whole work, both as rej^ards text and ar- rangement, I have used my own discretion in omitting «ir compressing. My intention has been to adapt lUack- stone's work to the present state of our law in Ontario. I have expunged any historical references which I con- sidered unnecessary, and I have omitted all illustrations by analogy from the civil law, and all classical allusions, iilackstone's statements on political questions, although interesting and original, are not applicable to our time or the social relat'ons existing in Ontario. His High (.'hurch and High Tory opinions are continually thrust upon his readers. These features I have entirely obli- terated, in many cases with some feeling of regret. My intention is that the reader of this work shall consult the statutes. The Revised Statutes of the Dominion and of the Province, and the subsetpieut amending Acts, must be always beside any person who wishes to learn the law of this countrv. As democracv, with its love of change, is the dominant power on this continent, it must have its way in legislation as in everything else. The immutable principles of right and wrong remain fixed, but the modes of the establishment of right and of the redress of wrongs vary with the changing phases of civil- ization. The rush of modern life causes what is new to- day to be old tomorrow. This influence is felt in legis- lation, and causes amending Acts t > be jiassed in each session of each Legislature. To facilitate reference to the statute law to date, I hav<' added to each section a complete statutory reference table, containing a list of statutes arranged in the order of subjects dealt with. I have besides placed in the margin of the pages refer- ence to the earliest operative statute relating to the matter in hand. The statements in the text can by reference to the table of statutes at the end of the sec- tion be amplifled when required. I have not made many references to cases; my ob- ject is to produce a book not intended for lawvers onlv, vi Preface. but aI«o for \\\v p'in*nil cuiuiuiiiiity. A knowk'dK*' "f the luwH iH ucfCHBar.v to every inuii who owiih property of any deHcription, or >vh<» wiMheM to hold any iniinU'i- pal, civil or piditinil poHitioii. A lawyer will tind IiIh cuHu law ill hiu di^eHtH, and aH I propoHe to state what the law i8 without Hhowin|{ aH a matter of eonvenieuce for lawyers where it can l»e found, I do not consider it necessary to ^ive references to caihes except wliere it cannot be avoided. These explanations are necessary in order that the jjeneral purport of the worii may In* understood. I have not separated Hlackst(me*s original text from my additions or alterations; any person who is curious enough to wish to kn(»w how much of the book is mine can easily satisfy that curiosity by com- ]>arin^ the pap's with HIackstone's oripnal text. Hav- ing had som(> ex{H>rience in lecturing;, and knowing the difliculty in consulting English text-books, and the absence of any sutticient Canadian lej;al text-book, ex- cept on some isolated subjects, I feel justified in sayinp: that to those wlio wish to become acquainted with the law of the Province of Ontario the following pages will be useful. I regret tlx* omissicm of many of the chief attrac- tions of Hlackstone's work, but I have endeavoured to make what I have substituted as intelligible and read- able as possible. The present volume deals with the Rights of Per- sons. The second volume will contain the law relating to Rights to Things or Real and Personal Property. A third and final volume will deal with the law of Wrongs, not criminal, and the mode of redressing them, that is, by suit or action in Court. I have not attempted to deal with Criminal Law. The Dominion Criminal Code can be easily obtained, and from it the necessary practical knowledge in that branch of the law can be learned. R. E. KINGSFORD. 34 Murray Strkkt, Toronto, Junk, 18!)(i. TABLE OF CONTENTS. {Detaili are given at head of Chapten and Section*.) mt is, RD. Frefftce V Introduotory. CHAPTER I.— Nature of Law in General " II. — Nature of Law of Ontario " III. — DiviBions of Law '* IV. — Law of Ontario considered an to jurisdiction 1 *V 10 17 •* V. — Boundaries of Ontario '2'.i . PART I. Right!. CHAPTER I. Rights of Persons — Divisions of the Subject 26 Natural Persons Bee. 1.— Absolute Rights of Individuals 28 Sec. 2.— Relative Rights of Individuals (public) 51 (1) Magistrates and People 52 Magistracy, Supreme Executive and Legislative 52 Magistracy, Subordinate 225 (2) People Aliens and Natural Born Subjects 231> Indians 244 Militia of Canada 25H Shipping 25<> Special Professions 202 (3) Municipal System of Ontario . . Organization of Municipalities 271 Unorganized Districts 28'.> Municipal Taxation 2!tf> Public Education 307 Municipal Matters Generally Public Morals, Public Health, Protection of the Person, of Property, of Game . . 314 General Miscellaneous Matters H2'.t Highways 330 IJridges 334 rr ii '( viii Table of Content m. Bee. 8, — Uelative Ili){litH uf IntUvtdiinU ( privatf) (1) Master and BervHtit 8.'i7 (•i) HuBbniul itiul Wife nr,r> (3) Parent und Child ;j«7 (4) (itiardiua and Ward 878 Hoc. 4.— Artificial Persons. Corporations and Companies .... 8S0 (1) Creation of CompanieH 8H8 (2) I'oweri), Capacities and Incapacities of Corpora- tions .HH'> (8) How Corporations are visited 888 (4) How Corporations may be dissolved 8<.>0 (5) Formation, Powers and Windin((-up of Joint Htock Companies under Ontitrio Legislation . . 81)2 (0) Formation, Powers and Winding-up of ,Joint Btock Companies under Dominion Lc»{islation . 402 (7) Hpecial Incorporations Banks 409 Insurance Companies 415 Building Hocioties 481 Railway Companies 488 The (general scheme of this work is as follows : Introductory (see above.) Part I.— Rights Chapter I.— Of Persons (this Volume) II.-To Things (Vol. II.) Part Il.-Wrongs (Vol. III.) Volume I. thus contains the first chapter of the first part, and is subdivided, as will be seen above, into four sections. I have not divided this volume by chapters because I wished to keep before the reader tiie unity of the subject. The main Rubdivisions of Law into Right and Wrongs, and of Rights into Rights of Persons and Rights to Things are liable to be clouded if there is a succession of separate chap- ters, each apparently as important as the other. By adopting a sub- division of sections the position of any given subject in the science of Law is more easily sliewn. , 337 3'.5 , 3(\7 , 373 , 3S0 • 3rt3 i- , 8rt'> , «8« « 3*.)0 it 3<.)2 nt i 1 . 402 409 . 4ir> . 431 . 433 INTRODUCTORY. THE NATUEE OF LAW IN GENERAL. 1. liAW DKALB WITH UlOHTB AMD WnoNOH. SioNiruATioM of Tkkm " Law." Hule of hamHii conduct. Law of nature. Revealed law. Man in society iiEQCiHEa fcb- TUBH LAWH. Law of nations, Laws governing particu- lar districts. Laws require intbrphetation. Rules for. Orioin ok " EgciTY." 2. Thk natcrr or the law of On- tario. lIlBTOKICAL sketch OK INTHO- UDCTION or EnOLIBH LAW INTO Province or Upper Canada, 81 Geo. III. c. 31, Impkuiai< Act, Photincial Act, 32 Geo. III. c. 1, lb Octoueh, 1791. Province or Canada, 3 & 4 Vict. c. 35 (Imperial Act). Dominion or Canada, 30 & 31 Victoria, c. 3 (B.N. A. Act.) Authority or Imperial Parlia- ment to I ass statutes afkect- iNO Canada explained. Colonies — claimable iiy occu- pancy — GAINED HY CO-NQIIEBT OR CEDED DY TREATY. DiFKEUENCB AM TO IJiWa INTRO- DUCED BY COLONISTS. (a) Where colonies occu- pied. (h) In contiuored or ceded countries. DiviBioNs or TUB Law op On- tario. Two KINDS. 1. Unwritten or Common Law. Where contained. Definition of. How to be known and how determined. Precedents. Ueports of decisions. Two exceptions to ru'.o that Common Law and TJnsvritten Law are the same — 1. Law Merchant. 2. Practice of Con- veyanoers. Written Law. Statutes— general or spe- cial, public or private, declaratory or remedial. Interpretationof statutes. 2. Equity. Extentof Interposition of. liAW or Ontario conhidered as TO jrillSDICTION. B. N. A. Act,8EC8. 90-93. Tabular distribution of powers as laid down by Act. BorNDAUIEH and TERRITORIAL Divisions of Ontario. iU CHAPTER I. NATURE AND EXTENT OF LAW IN GENERAL. Our object is Law which deals with Rights and Wrongs. K.B. — 1 ■;a 2 On the Nature of [INTROD. exS«dned. ^^^ ^^^^ understand what Law is, and will com- mence with that enquiry. Law, in its most general and comprehensive sense, signifies a rule of action ; and is applied indiscrimi- nately to all kinds of action, whether animate or inani- mate, rational or iri*ational. Thus we say, the laws of motion, of gravitation, of optics or mechanics, as well as the laws of nature and of nations. And it is that rule of action which is prescribed by some superior, and which the inferior is bound to obey. This, then, is the general signification of law, a rule of action dictated by some superior being: and, in those creatures which have neither the power to think, nor to will, such laws must be invariably obeyed, so long as the creature itself subsists, for its existence depends on that obedience. But laws, in their confined sense, and in which it is our present business to consider them, denote the rules, not of action in genend, but of human action or conduct, th.it is, the precepts by whicli man, the noblest of all sublunai'v beings, a creature endowed with both reason and free will, is commanded to make use of these faculties in the general regulation of his behavior. Man, considered as a creature, must necessarily be subject to the laws of IiIb Creator, God, and as man de- pends absolutely upon his Maker for everything, it is necessary that he should, in all points, conform to his Maker's will. This will of his Maker is called the Law of Nature, or of God, and that law is superior to any other, as the Creator is. Being of infinite power, wisdom and goodness, He has prescribed whatever laws He pleased, but He has laid down only such laws as were founded on absolute justice, and has so interwoven the laws He has laid down with the happiness of each individual, that one follows on the observance of the other. But in order to apply this to the particular exi- gencies of each individual, it is still necessary to have recourse to reason (whose office it is to discover, as was before observed, what the law of nature directs in every circumstance of life), by considering what method will Law of Nature. CIJAI'. l] Law in General. Law. tend the most efifectually to our own Hubgtantial hap- piness. To arrive at a crireet solution of this difficulty, Revelation was necessary, whi<*h gave rise to the Re- Revealed vealed Law, as laid down in the Scriptures. Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict tlu'se. There are, it is true, a great number of indiffer- ent points, in which both the divine law and the natural leave a man at his own liberty, but which are found necessary for the benefit of society to be restrained within certain limits. And herein it is that human laws have their greatest force and eflicacy: for, with regard to such points as are not indifferent, human laws are only declaratory of, and act in subordination to, the former. For instance, in the case of murder: this is expressly forbidden by the divine, and demonstrably by tlie natural law; and from these prohibitions arises the true unlawfulness of crime. Those human laws that annex a punisliment to it, do not at all increase its moral guilt, or superadd any fresh obligation in foro consci- entije to abstain from its perpetration. Nay, if any human law should allow or enjoin us to connuit it, wo are bound to transgress that human law, or else we must offend both the natural and the divine. Rut with re- gard to matters that are in tlatnselves indifferent, and are not commanded or forbidden by those superior laws; such, for instance, as exportlajj; of wool into foreign countries; here the inferior legislature has scope and opi)(M't unity to interpose, and to make that action un- lawful which before was not so. If man were to live in a state of nature, unconnected with other individuals, there would be no occasion for any other laws than the law of nature and the law of God. Neither could any other law possibly exist: for a law always supposes some superior who is to make it; and in a state of nature we are all equal, without any other superior but Him Wl)o is the Author of our be'ng. Rut man was formed for society; and, as is demonstrated On the Nature of [INTROD. Law of Nations. by the writers on this subject, is neither capable of liv- ing alone, nor, indeed, has the courage to do it. How- ever, as it is impossible for the whole race of mankind to be united in one great society, they must necessarily divide into many, and form separate states, common- wealths and nations, entirely independent of each other, and yet liable to a mutual intercourse. Hence arises a third kind of law, to regulate this mutual intercourse, called the Law of Nations ; which, as none of these states will acknowledge a superiority in the other, can- not be dictated by any, but depends entirely upon the rules of natural law, or upon mutual compacts, treaties, leagues, and agreements between these several commu- nities: in the construction also of which compacts we have no other rule to resort to but the law of nature; being the only one to which all the communities are equally subject. I have now explained shortly these great divisions of law, namely, the law of nature, revealed law and the law of nations. I now proceed to the fourth, namely, the law by which particular districts, communities or nations are governed.* The particular district we have to deal with is the Province of Ontario, for it is that in which we live and to whose laws we are subject. This law, thus understood, is properly defined to be "a rule of civil conduct prescribed by the supreme power in p state, commanding what is right and pro- hibiting what is wrong." It must be noticec': — First. It is a rule, something permanent, uniform and universal, and it is not a com- pact or agreement. Second. It is a rule of civil conduct, not moral con- duct. Third. It is a rule prescribed, that is, it must be notified to the peoi)le who are to obey it, which may be done in various ways, tradition, proclamation, publica- tion, etc. But the mode of proclamation must be reason- • I have discarded Blackstone's name for this law — " Munici- pal Law." ' It is confusing in Ontario where Municipal law is well understood to include only laws passed by and for cities, towns, counties, and other subdivisions of the Province. CHAP. l] Law in General. 6 able and also not ex post facto. When notified, it must be taken to be known, and ignorance will not excuse its breach. Fourth. It must be prescribed by the supreme power in the state. Whatever form of government any particular country adopts, to the supreme power belongs not only the right but the duty of making laws. Fifth. The rule so prescribed commands what is right, prohibits wlijit is wrong, and must enforce the one and restrain or redress tlie other. Therefore, laws are declaratory, defining rights and wrongs: directory, re- quiring the observance of rights and the abstention from wrongs: remedial, providing for recovery of rights and redress from wrongs: vindicatory, laying down penalties. This fourth division of law so far as it relates to usThoLaw in the Province of Ontario may be called The Law of " Ontario. When laws are pronounced, doubts may arise as to Construc- their construction; they must be then considered and Laws, their true meaning discovered. In time, certain rules of interpretation will be evolved which apply to all laws. Such rules mny be briefly stated as follows: 1. Words are generally to be understood in their usual and most known signification. 2. If words happen to be dubious their meaning may be established from the context. 3. As to the subject-matter words must always be taken as having a regard thereto. The object or inten- tion of the law being .".scertained, the expression must be construed with reference to it. 4. As to the effects or consequence. Where W(trds either bear none, or a very absurd signification, if liter- ally understood, we must deviate a little from the receiv- ed sense of them. 5. The most universal and effectual way to discover the true meaning of the law is to consider the reason and spirit of it, or the cause which moved the legisla- tor to enact it. For when the reason ceases, the law itself ought to cease. 6 Of the Law [INTROD. I !' There pre certain rules parlini^arly laid down for the interpretation of statutes which wo will notice later on. "Equity" From this method of interpret inc laws by the denntxl. . i,.^ i.i reason of Ihem, arises what we call equity; which is , thus defined: "The correction of that wherein the law (by reason of its universality) is deficient." For since in laws all cases cannot be foreseen or expressed, it is necet^sary, that when the jjeneral decrt^es of the law come to be applied to particular cases, there should be some- wh«'re a power vested of defining those circumstanies, which (had they been foreseen) the lejjislator himself would have expressed. CHAPTER II. THE NATURE OF THE LAW OP ONTARIO. What Law ^ have thus traced the oiiL^in and division.s ol' law, prevails in the Law of Nature, Revealed Law, the Law of Nationa Ontario ? and the Law of Ontario, and cxjilained what is implied in the term " law," and how it may be modified by " equity." Our subject beiu}]? law, as just explained, how do these definitions apply to us in Ontario ? Under v.hat system of law do we live ? In order to answer correctly we must review our national his- tory. Quebec was taken in 1759, the rest of Canada in the following year. In their Articles of Capitulation, the Fi'. nch-Canadians requested the right of having their own laws preserved, (ieneral Amht-i'st's answer was that they would become subjects of the King of Eng- land. Matters were left in this condition until the Treaty of Paris in 1763, v>hen Canada was formally ceded to England, and the people lucame legally liritish subjects. In October, 1703, the King issued a i)r()clama tion v.'hereby he declared that English law should pre- vail in Canada, and under the authority of this procla- mation courts were erected in 1701. As might be CHAP. Il] of Ontario. expected, great dissatisfaetion was caused, and the Gov- eruor-Oeneral, having the power to make ordinances, modified the strict rnh' of the proclamation by allowing French law as respects tenure of land and rights of in- heritance. In fact, also on other ]>oints the French law was followed, and in 1774, an Imperial Act, known as the Quebec Act (14 (Jeorge III, c. Hli) was passed, which re-introduced into Canada tlie French law on civil matters, but retained the English criminal law, which, as to criminal matters, had lirmly established itself. The boundaries of Canada were by the Quebec Act greatly increased, and it was a cause of great irritation to the English colonies, now tlie United States. When, in 17S.*{, their independence was recognized and the United Empire Loyalists withdrew into Canada, the Quebec Act was jiartially repealed by a new statute, 31 Oeorge III. c. ,31, parsed in 1791, and a new province was carved out of the old Province of Quebec. The latter lost its old name, and became the Province of Lower Canada, while the new one became Upper Cansida. For both provinces Legislative Councils and Assemblies were provided. In 1792, the Legislative Assembly of Upper Canada first met at Niagara, and its first statute, 32 Ccorge III. c. 1, introduced the laws of England as they stood on the loth October, 1791, excepting Poor Laws and Bankruptcy Acts. A further provision was made in 1822 by 2 George IV. c. 1, when it was declared that statutes of jeofails* or of limitations and for the amend- ment of the law should be adopted as they stood on the 17th January, 1822. The Provinces of Upper and Lower Canada con- tinued their existence until 1840, when by Imperial Act, 3 & 4 Victoria, c. 35, they were reunited to form the Pro- vince of Canada, but as to laws, each province preserved those in force at the union, thus Upper Canada retained English law. The Province of Canada continued until the year 18(57, when the Dominion of Canada was formed by the 14 Geo. III. c. i :U Geo. III. c. 31. ;i2 Geo. III. c. 1. 2 Geo. IV. c. 1. 3 k 4 Vict, c. 35, li ul n- * Statutes allowing amendments in pleadings, superseded. They are now B 8 Of the Law [INTROD. 30&31 Vict. c. 3. Seo. 6. union of Canada, New Brunswick and Nova Scotia under the provisions of Imperial Act, 30 & 31 Vict. c. 3, familiar as the British North America Act. By sec. 129 of that Act, all laws in force in the respective portions of the Dominion were continued, and thus the Province of Ontario, which was erected on the territorial limits of the old Province of Upper Canada, continued and still continues to be governed by English law. These then have been the successive constitutional changes affect- ing Ontario. It will have been noticed that the English Parliament has always been the authority by which the varioiiH ultimate steps have been taken. How was it that the Parliament of England had the right to make these laws for Canada ? Briefly, because Canada was first conquered by England, then was ceded by treaty, and thus became an English colony. Colonies, Plantations or colonies, in distant countries, are how ori'gi- either such where the lands are claimed by right of occu- nated. pancy only, bj^ finding them desert and uncultivated, and peopling them from the mother country; or where, when already cultivated, they have been either gained by conquest or ceded by treaties. Both these rights are founded upon the law of nature, or at least upon that of nations. But there is a difference between these two species of colonies with respect to the laws by which they are bound ; for it has been held, that if an uninhabited country could be dis- covered and planted by English subjects, all the Eng- lish laws then in being, which are the birthright of every subject, are immediately there in force. But this must be understood with very many and very great restric- tions. Such colonists carry with them only so much of the English law as is applicable to their own situation and the condition of an infant colony; such, for instance, as the general rules of inheritance, and of protection from personal injuries. The artificial refinements and distinctions incident to the property of a great and com- mercial people, the laws of police and revenue (such especially as are enforced by penalties), the bankrupt See 65 laws, the mortmain Acts, the poor and game laws, the (Ont.r ^ jurisdiction of spiritual courts, and a multitude of other CHAP. Il] of Ontario. 9 are provisions, are neither necessary nor convonient for them, and therefore are not in force. What shall be admitted and what rejected, at what times, and under what restrictions, must, in case of dispute, be decided in the first instance by their own provincial judicature, subject to the revision and control of the King in coun- cil : the whole of their constitution being also liable to be new-modelled and reformed by the general superin- tending power of the legislature in the mother country. But in conquered or ceded countries, they have nlready laws of their own ; the King may indeed alter and change those laws; l)ut, till he does actually change them, the iincient laws of the country remain, unless such as are against the law of God, as in the case of an infidel country. And therefore the common law of England, as such, has no allowance or authority there; they being no part of the mother country, but distinct (though dependent) dominions. They are subject, however, to the control of the Parliament of England, thougli (like Ireland, Man and tlie rest) not bound by any Acts of Parliament, unless particularly named. We have, accordingly, the right to leg: shite for our- selves, and we are not bound by Imperial statutes unless expressly named, or unless these slavutes are such as necessarily affect the whole empire.* * Examplos are The Merchant Shippiiif; Acts, Extradition Acta, Colonial Laws Validity Act, 1%5. 28 & 2!) Viot. chapter 03 (Imperial Act). This Act recited that doubts had been entertained respectint^ the validity of divers laws enacted, or purportin^j to be enacted, by the Legislatures of certain of the colonies, and respecting; the powers of such Legislatures, and that it was expedient that such doubts should be removed. Tt ;v»is thfirefora provided as follows : — ) * iiy law of liny colony repujjnant to the provisions of any Act . i "lament e.vtending to that colony, or repuunant to any order or .i, fc.-i.on made under authoi'ity of such Act of Parliament, or having ai I oolony the forcj or effect of such Act, must l abolish and recouHiitute them and to alter their constitutions; and every representative Le;4i3lature is to be deemed to have, and to always have had, full pow'.>r to make laws respecting; the constitution, powers and procedure of the Le>>islature. It is further provijled that duly certified cor ies of these la v»-8 .shall be received as evidonce. This statute is the full Imperial recognition by tli'j Parliament of England of the rit;ht of colonies where representa- tive uovernment is established to legislate for themselves and their own Courts of Judicature. The supremacy of the Imperial Legislature is retained within the cases mentioned in the text. So far as Canada is concerned, this Act must also be read subject to the special provisions of the D. N. A. Act. CHAP. Ill] Divisions of Law. 11 ind«H»(l, that, in tlu» in'ofoiiiul i^nornTicc of letters whit li fornu'i'ly overHpresid the wliole wcHtern world, all lawn wen* entirely traditional; for this plain reason, liecause the nations nnioiii; whi«'h they jn-evailed had but lit lie idea of writing':. \Uit at preMent the nioniunents and evidences of our lej^al customs are contained in the records of the sevn ActH, hereafter mentioned, every statute is to be deemed remedial. Kules for the interpretation of statutes have been enacted hy the Legislature in the Interpretation Acta, which will be found at the beginning of the Dominion and Ontario Statutes. It may be mentioned here that it has become customary to collect every ten or twelve years the statutes j)assed in the interval and revise them, so as to have the corrected body of the statute law in convenient shape. The following are the principal rulen which have been laid down by the Interpretation Acts for the con- struction of statutes: 1. Every Act, unless where by express provision de- clared to be a private Act, is deemed a jaiblic Act and must be judicially noticed without being specially pleaded. All copies of Acts, public or private, printed by the Queen's printer, are evidence of these Acts and of their contents; and everj' copy purporting to be printed by the Queen's printer is deemed to be printed by him unless the contrary is shown. 2. A preamble of an Act is deemed part of the Act intended to assist in explain- ing its purport and object. 3. Every Act is deemed remedial whether its immediate purport be to direct the doing of anything which the Legislature deems to be for the public good or to prevent or punish the doing of anything which it deems to be contrary to the public CHAI'. Ill] Divisions of fjiiii'. 15 jjood: <'V«»r.v Art iiniHt tlM'r«*f<»rt» r(M«'iv«» Buch fair, mrgo and liberal conBtniction and iiittM'prctation as will b«'Ht inHnrc tli«> attainiiicnt (tf tin* object at the Act according to its true intent, meaning' and H|>int. 4. The ivpeal of an,v Act or part of at. Act d«ies not n*vlve any Act or proviHion of law icpealed b,v that A«t, or pi-event the effect of any savinj? clauHe in it. 5. If any Act in H'pi'ak 1, nothin); done nnder the old law \h alTiM-ted nnU'HH HO Htated, and all (tending HtateH or conditions of the law remain until the new law takes elltM-t; fre- (piently this is made to depend on proclamation of tiie Lieutenant-(Jovernor. (5. The word " h(diday " includ.s Hundays, New Year's Day, (Sood Friday, Kaster Mondity, Christmas Day, Dominion Day, the days appointed f. Kj, 8. The Dominion Interpretation Act contains these c.i. further provisions: The repeal of any Act is not deemed e';^o to be a declaration that the Act rcpealt'd wjis, or was^^""**) considered by Parliament to have been, i)revionsly in force. 2. The amendment of any Act is nol d<'emed to be a declaration that the law under the Aci amended was, or was considered by I*arliament to have been, different from the law as it is to become under the amended Act. 3. The repeal or amendment of any Act is not deemed to be or to involve any declaration what- ever as to the provisions of the law. 4. IJy re-enacting • The holidays fixed by the Dominion Interpretation Act as amended .IT, 58 by 5(1 Vict. 0. 30 (Dom.) are: Snndays, New Year's Day. the Epiplmny, Vict. c. 55, Good Friday, the Ascension, All Saints' Day, (Conception Day, Eastir .«s. 1, 2 Monday, Ash Wednesday, Christmas Day, King's or Queen's Hirtliday, (Dom.) Dominion Day, and any t'eneral Thanksmvin-^ or Fast Day. 'J'ho first Monday in September, to be designated ' Labour Day,' is also a liolidav. ... ^. In all matters relating to bills of exchange, the following arc liolidavs : ''%, °'* , . Sundays, New Year s Day, Good Friday, Piaster Monday, Cliristinas f[)'o^ ?' Day, Sovereign's Birthday, Dominion Dav, any proclaimed public holi- day or Fast Day, also Labour Day. Iffl Itjp^i '"lllf 16 Divimona of Law. [INTKOD. c. R. S, c. I. 63 Vict. «.7(Dom.) Equity of ftHtatute. 68 Vict. c. 12, B. 53 (12). Ibid, a. 62 (12). an Act, or revising, consolidating or amending it, Par- liament is not to be deemed to have adopted the con- struction which has by judicial decision or otherwise been placed upon the lanuuage used in that Act or upon similar Acts. These are the several grounds of the laws ovca* and above which equity is also frequently called in to assist, to moderate, and to explain them. It is impos- sible to reduce equity to staled rules, and I shall there- fore only add that (besides the liberality of sentiment with which our common law Judges ought to interpret Acts of Parliament, and such rules of Ihe unwritten law as are not of a jmsitive kind, which is often called the equity of Ji statute) our whole modern system of jiiris- prudence is founded on equity. It is declared as the law of the land that wherever there is any conflict or variance between the rules of equity and the rules of the <'omnu)n 'aw with reference to the same matter, the rules of equity sliall prevail. Moreover, specific directions are lai(we<'n the Dominion and those provinces. Tlial dis- tributi(m is fully set out in sections 01 to 0;{ of (he Act. The respective jurisdictions are shown In the annexed table, which is extracted fiMMU tlie Act itse'" DOMINION OF CANADA. Section 91 of the Act Is as follows: It shall be lawful for the Queen, by und with the advice and consent of ti;e Senate and House of CommonK PROVINCIAL. Section 02 is as follows: In each province the Legislature may e.vcluslvely make laws In rela- tion to matters coming within the to malte laws for the peace, order, and ! classeH of subjects next hereinafter Kood government of Canada, in rela- tion to all matters not coming within the classes of subjects by this Act as- fi(,'nnd oxclii8ivf'ly to tlio lo^iHlutnres of the provinces; and for greater cer- tainty, but not so as to restrict the fs'onerality of the foregoing terms of I Ills section, it is hereby declared that (notwithstanding anything in this Act) the exclusive legislative author- ity of the Parliament of Canada ex- tends to all matters coming within K.n— 2 enumerated, that is to say: 1. The amendment from time to time, notwithstanding anything in ihls Act, of the (^onstltudon of the Province, except as re- gards the office of the Lieuten- ant-Governor. 2. Direct taxation within the Pro- vince in order to the raising of a revenue for 'Provincial pur- poses. 18 Law of Ontario. DOMINION OF CANADA. IXTROD. PROVINCIAL. the classes of subjects next herein- after enumerated; that is to say: 1. The Public Debt and Property. 2. The Regulation of Trade and Commerce. 3. The raising of money by any mode or system of taxation. 4. The borrowing of money on the I public credit. 5. Postal Service. 6. The Census and Statistics. 7. Militia, Military and Naval ser- vice, and Defence. I 8. The fixing of and providing for ! the salaries and allowances of civil and other ofiicers of the Government of Canada. 9. Beacons, buoys, lighthouses, and Sable Island. 10. Navigation and Shipping. 11. Quarantine and the establishment and maintenance of Marine Hos- pitals. 12. Sea coast and inland fisheries. IH. Ferries between a Province and any British or Foreign Coun- try or between two Provinces. 14. Currency and Coinage. 15. Banking, incorporation of banks, and the issue of paper money. 16. Savings Banks. 17. Weights and Measures. 18. Bills of Exchange and Promissory Notes. 10. Interest. 20. Legal Tender. 21. Bankruptcy and Insolvency. 3. The borrowing of money on the sole credit of the Province. 4. The establishment and tenure of Provincial offices and the ap- pointment and payment of Pro- vincial officers. 5. The establishment, maintenance, and management of Public and Reformatory Prisons in and for the Province. 7. The establishment, maintenance, and management of Hospitals, Asyhir>"'^, Charities, iind Elee- mosynary Institutions in and for the Province, other than Marine Hospitals. 8. Municipal Institutions in the Pro- vince. 9. Shop, Saloon, Tavern, Auctioneer, and other Licenses in order to the raising of a revenue for Pro- vincial, Local, or Municipal Pur- poses. 10. Local Works and Undertakings other 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 Provinces with any other or others of the Provinces, or ex- tending beyond the limits of the Province: 6. Lines of Steam Ships be- tween the Province and any British or Foreign Country: c. Such Works as, although wholly situate within the Province, are before or af- ter their execution de- clared by the Parliament of Canada to be for the general advantage of Can- IXTROD. CHAP. IV] Jurisdiction. 10 ey on ilie ivince. tenure of 1 the ap- nt of Pro- lintenance. Public and in and for aintenance. Hospitals, and Elee- ns in and other than in the Pro- Auctioneer, in order to nue for Pro- nicipal Pur- ndertakings are of the or other ,ys, Canals, and other ndertaklngs Provinces or others tces, or ex- the limits :e: Ships be- ■ovlnce and or Foreign 8, although within the pefore or af- fciition de- Parliament be for the lage of Can- i DOMINION OF CANADA. 22. Patents of invention and dis- covery. 23. Copyrights. 24. Indians, and lands reserved foi' the Inditns. 25. Naturalization and Aliens. 20. Marriage and Divorce. 27. The Criminal I^aw, except tbc Constitution of Courts of Crimi- j nal Jurisdiction, but including i the procedure in criminal mat- j ters. i 28. The establishment, maintenance, I and management of Penitenti- ! aries, 2!). Such classes of subjects as ar^: expressly excepted in the enu- meration of the classes of sub- jects by this Act assigned exclu- sively to the Legislatures of tht Provinces. And any matter coming within any of the classes of subjects enumerated in this section shall not be deemed to come within the class of matters of a local or private nature comprised in the enumeration of the classes of subjects by this Act assigned exclu- sively to the Legislatures of the Pro- vinces. PROVINCIAL. ada or for the advantage of Canada or for the ad- vantage of two or more of the Provinces. 11. The Incorporation of Companies with Provincial Objects. 12. The Solemnization of Marrlape In the Province. 13. Property and Civil Riprhts in the Province. 14. The Administration of .lustice in the Province, including the con- stitution, maintenance, and or- ganization of Provincial Conns, both of civil and criminal juris- diction, and including procedure in civil matters in those Courts. 15. The imposition of punii iimeni by fine, penalty, or imprisonment for enforcing any law of the Pro- vince made in relation to any matter coming within any of the classes of subjects enumerated in this section. Ki. Generally all matters of a merely local or private nature in the Province. It will be seen that there mav be a difflcnltv in deciding whether a matter is exclnsively within the jurisdiction of the provincial legislatures, or whether it may not come within the classes of subjects assigned to the Dominion. The rule of construction accepted is as follows : If any doubtful subject can be brought clearly Rule of within the enumerated specified powers of the provinces tlcn^in as- it is a provincial matter. If it does not come clearly certainingr junsaic- within such powers the matter is within the jurisdiction tion. of the Dominion only. In the application of this rule to the particular instance in question lies the difficulty. The following canons are now also recognized: The words " Property and Civil Rights in the Province " in %' 20 Law of Ontario. [INTROD, number 13, section 92, have been held to include rights arising from contract which are not in express terms included under section 91, and are not limited to such rights only as flow from the law, e.g., the status of per- sons. 2. Subjects which in one aspect and for one pur- pose fall witliin section 92, may in another aspect and for another purpose fall within section 91. 3. Sections 91 and 92 must, in regard to classes of subjects generally described in section 91, be read together, and the lan- guage of one interpreted, and where necessary, modified by that of the other, so as to reconcile the respective provisions they contain and give effect to all of them. 4. Each question should be decided as best it can with- out entering more largely than is necessary upon inter- pretation of the statute.* Settlement For tlie purpose of expediting the decision of con- tutlonai' stitutional and special provincial questions, the Lieu- questions. tenant-Governor in council may refer to the High Court 53Viot. of Justice or to the Court of Appeal any matter which he thinks fit to refer, and the Court must thereupon dis- pose of the matter, and certify its opinion on the ques- tion referred with its reasons. If the matter relates to the constitutional validity of any Act of the Provincial Legislature, the Attorney-General of Canada must be notified of the hearing in order to appear if he sees fit. Any person interested must also be notified of the hear- c. 13(()nt.) 1 ■ • I feel that these statements do not sufficiently assist the reader to come to a satisfactory conclusion on any given question of conflict of jurisdiction under the Act. On such matters reference must be had to the decided cases or to special text books on Constitutional Law. I may, however, call attention further to the difference between the Canadian and American systems on the point of jurisdiction. In the American Union all reserve or unenumerated powers belong to the indi- vidual States. In Canada all unenumerated powers belong to the Dominion. The intention of the Act is in favour of a strong central government. The Dominion should receive the benefit of any doubt where it is not perfectly clear that the matter in question comes within the classes of subjects assigned to the Provinces. The more consistently this principle of construbtion is acted upon, the happier for Canada as a country. When the reader has studied the following pages, where the separate legislation of the Dominion and Province on many cognate subjects is described, he will be able to return to the statement of powers conferred by the Act. After hearing what the Parliament of Canada and the Legislative Assembly of Ontario have done without any ques- tion as to their power to act, it will be easier to settle doubtful cases by ftnalogy. il [INTROD. e lights ig terms to such 3 of per- one pur- )ect and Sections enerally the Ian- modified spective 3f them, an with- in inter- i of con- tie Lieu- ;h Court ir which ipon dis- he ques- jlates to •ovincial oaust be sees fit. he hear- e reader to conflict of be had to Law. I tween tlie n. In the o the indi- ing to the ng central any doubt lies within insistently anada as a where the ly cognate b of powers of Canada any ques- il cases by CHAP. IV] Jurisdiction. 21 inp. The opinion of the Court is deemed a judgment, and an appeal lies from it, as in the case of a judgment in an action. The Dominion has conferred similar powers on the Supreme Court. In cases where the Pro- J^|^ vince of Ontario is interested the Attorney-General must (bom be notified. !'per Canada on the Separate Schools and school trustees of the Queen's Roman Catholic subjects shall be and the name are hereby extended to the dissentient schools of the Queen's Protestant and Roman Catholic subjects in Quebec. (3) Where in any province a system of separate or dissentient schools exists 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 of privilege of the Protestant or Roman Catho- lic 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 Governor-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-Gen- eral in council on any appeal under this section is not duly executed by the proper provincial authority in that behalf, then and in every such case, and as far only as the circumstances of each case recjuire, the Parliament of Canada may make remedial laws for the due exe< u- 4 S'H: III! inii ' I ^iiliiii 22 Law of Ontario. [INTUOD. Agricul- ture and immigra- tion. tion of the provisions of tliis .section and of any decision of the Govenior-Gen iProv. Escheat Mercer v. Atty.-Gen V. SHS Prov. vn. Of). VIII. 767. Taxation iReed v. Mousseau VIII. t08 Dom |X. 141. I ! ! Education I Barrett v. Winnipeg ... .!XIX. 'i'i jProv 1802, 445. Prerogative . Distribution of debtors' assets Education . S Liquidators Mar. Bk. >{-,>■■> 't>«„., \ v. New Brunswick. < '^^"> ,P'°^- \ ^"y;-;;«"p^"''n'' * \ '-'0 (>• A. U. 4^0 Prov, < Atty.-(»en. Can.* ^ , S Brophy v. « Atty.-Gen. Man. Dom Ibid. 437. 1804, 1S9. 1805, 202. ■ Not from Supremo Court. % -i. lii (•HA I'. V] JarlsiUcti.on. 23 The following are a few of the cases on the B. N. A. Act in the Supreme Court of Canada which have not heen carried furthci- tlian that Court : Subject. Cahk. S.C. Keports Liquor Licenses {I)oiiiinion) Severn v. Ke^f IL 70. Queen's Counsel (Provincial) Lenoir v. Ititcliie IIL .175. Maritime Court (Provincial) Of Ontario TV. f>4'.». Warehouse Receipts (Provincial). . . . Merchants' IJank v. .Sniitli VIIL 512. Tidal River (Dominion) C^ueddy K. Co. v. Davidson X. 222. Penalty for not Paying' Taxes (Prov.) Lynch v. Canada N. W. Land Co. . . . XIX. 204. lianking (Dominion) " Viirt v. Reg jibid. .110. Appointment of .Tudpes (Provincial). Ue County .ludpes liritish Columbia. ; XXL 446. Lp. Ui Vol. Cas. CHAPTEK V. 1. BOUNDARIES OF ONTARIO. By section (5 of the British North America Act, as lias already' appeared, the parts of the Province of Canada which formerly constituted respectively the Provinces of Upper and Lower Canada were deemed to be severed and to form two provinces; the part which constituted the Province of Upper Canada was constituted the Province of Ontario ; the part whicli formerly constituted the Province of Lower Can- ada was constituted the Province of Quebec. The boundary between the Provinces of Ontario and Quebec is settled by the Legislatures of Ontario and Quebec agreeing and de- claring the line defined in chapter 3 of the Revised Statutes of Ontario as the line between the two provinces. The northerly and westerly boundaries were not defined until liSTB, when an arbitration having taken place an award was made w'hich appears as chapter 4 of those Revised Statutes. The Parliament of Canada lias assented to these boundaries, and they have been ratified by Imperial Act. Bound - arieii of Ontario. R. S. <). c. 8. R. .S. (K c. 4. r,2-ri3 Vict, c. 28, Dom. Stats. Ib'J mi ¥1 I 24 ill %,. :; ; I Laiv of Ontario. [i.vtkod. •2. INTRA-TERRITORIAL DIVISION. Intniter- "i'^t} Proviiico of Ontario for inti'a-territorial purposes is (UviHiniis •divided into counties, provisional counties, provisional judi- cial districts, and territorial districts. The counties are R. 8. o. forty-two in number : They are for municipal purposes sub- divided into townships, incorporated villa;ainst kiilinij or tor- turing;. ii. Body or person. 4. Health. 5. Reputation en- j^ood mime. II. Personal Liiiertv of Indivi- duals. Maona Ciiarta. Petition of Rioiit. Habeas Comns Act, 1 W. A Mary 2, R. S. (). c. 70. Liability to I.mi'Risonmunt f )k Debt. Suspension of Habkas Corpus Act. Duress of I m prison m e n t, effect of. No Power of Banishment oi; Exile. Extradition. IIL Property. Mauna Ciiarta. Modern Law of Expropriation for Public Turposes. No Taxation Without Repre- sentation. Petition or Right. 18 Geo. III. c. 12. Mi 11 if 26 Rifjlits of Personft [PAUT I Law hah Provii>ei> SciionDiNATE BldllTS TO PllOTECT KlOUTS Of THK SUDJKCT. 1. Parliament. 2. Limitation of the King's prerogative. Iligiit to apply to Courts of Justice. Instances of statutes for- bidding delays of justice. 1 \\.& Mary, c. 2, denying dispensing power. H. No power but in Parlia- ment of altering pro- cedure. 1() Car L c. 10, all mat- ters to be determined by course of law. 4. Right of petitioning. Bill of hights, 1 W. & M. c. 2, Public Meetings, R. S. O. c. 187. 5. Keeping arms for defence. Objects of law. KiglitH. Wrongs. OF THE RIGHTS OF INDIVIDUALS. PllELIMlXAHY. I have traced the outHues of law in general — laid down its grand divisions, coinpri.sing the Law of Nature* RevealeLl Law, the Law of Nations and the Law of Ontario, and shown that we have to deal witii the latter. I have shown how it has come about that we have as our .system the law of England ; have explained its divi- sions and have shown how in Ontario its execution is conmiitted partially to the Dominion and partially to the province. Now, as law is a rule of civil conduct, commanding what is right and prohibiting wiiat is wrong, it follows that the primary and principal objects of the law are Riojits and Wrongs. I shall follow this division ; and shall, in the first place, consider the rights that are com- manded, and, secondly, the wrongs that are forbidden by the laws of tlie land. Rights are liable to subdivision : being either, first, those which concern and are annexed to the persons of men, and are then called "jura personarum," or the rights 'of persons; or they are, secondly, such as a man may accpiire over external objects or things, unconnected with his person, which are styled "jura rerum," or the rights of things, or better, to things. Wrongs are also divisible into, first. Private Wrongs, which being an infringement merely of particular rights, concern individuals only, and are called civil injuries ; and secondly, Public Wrongs, which, being a breach of I [PAUT I I) I'arlift- •inj» pro- all mat- jtermineil iw. )iun«. L W. & M. 8, R. S.O. jr defence. «HA1'. I J Absolufi: 27 lal— laid Nature* Law of he latter, have as its divi- tecution is ly to the unanding t follows law are ion ; and are com- idden by %er, first, lersons of he rights ^lan may jted with ^le rights Wrongs, ir rights, I injuries ; Lreach of m-ncral nnd public rights, nffcct tho whole connnunity, and are called crimes and misdemeanors.* The objects of the law fallin}; into tliis diviHh)n, our account will consist of the three followiug parts: 1. The riRhts of persons, with the means whereby iti^fiitH of jlute and r(?lative. AbMoiute, whicli are hucIi i\h appertain and )>(>louf; to particular men, merely aw individiialH or Hin^le ptM'HcmH; relative, wliich ar«' incident to (hem aH memhern of society, and Btnndinp in variouH relations to each other. The tlrst, that is, al)Holute rij^htH, will be now considered. SECTION I. Ai^soH'TK imaiis oi' i'kksons. Ill iiii Alisohitc rights of perHoiiH. m By the absolute rifjhts of individuals w<' mean those which are so in their primary and strictest sense, such as would belonj; to their j)erson8 merely in a state of nature, and which every man is entitled to enjoy whether out of society or in it. But with regard to the absolute duties which man is bound to perform, consid- ered as a mere individual, it is not to be expected that any human municipal law should at all explain or enforce them. For the end and intent of such laws beinfj only to regulate the behaviour of mankind, as they are nu^mbers of society, and stand in various relations to each other, they have consequently no concern with any otlier but social or relative duties. Let a man. therefore, be ever so abandoned in his principles, or vicious in his practice, provided he keeps his wicked- ness to himself, and does not oll'end against the rules of public decency, he is out of the reach of lumian laws. But if he makes his vices public, though they be such as seem principally to affect himself (as drunkenness. or the like), they then become, by the bad example they set, of pernicious elTect to society; and therefore it i« then the business of human laws to correct thoni. Here the circumstance of publication is what alters the nature of the case. Public sobriety is a relative duty, and therefore enjoined by our laws; private sobriety is an absolute dutj', which, whether it be performed or not. human tribunals can never know; and therefore th.v ; ■ I :■ I ('iiAi'. I, i \] A huol II tf. 20 1 to enjoy Hard to the )rm, consid- e expected all explain f sneli laws ind, as they lis relationn incern with .et a man. i-inciples, or his wicked- ilie rules of nnian laws, ley be siu'li runkenness. cample they 'refore it i« rreot them, what alters ?lative duty, sobriety is rmed or not. refore th'-y ,'htH. the case is different. Human laws define and enfonv as well those rights which bclont; to a man considered as an individual, as those which belonfj to him considered as related to others. For the principal aim of society is to protect indi- viduals in the enjoyment of those absolutr rights which were vested in them by the imnnitable laws of nature; but which could not ln» preserved in jx-ace without that mutual assistan<'(' and int<'rcours«' which is painetl by the institution of friendly and social communities. Hence it follows that the f'rst and primary end of human laws is to maintain and rcfrulate these absolute riffhts of individuals. Such rijjhts as are social and n'lative result from, and are posterior to, the formation of states and societies: so that to maintain and re{?ulate these is clearly a subsequent <'onsideration. And, there- fore, the principal view of human laws is, or oupht always to be, to explain. j)rotect, and enforce such rights as are absolute, which in themselves are few and simple; and then such ripjhts as are relative, which, arising from a variety of connections, will be far more numerous and more complicated. These will take up a greater space in any code of laws, and hence may appear to be more attended to, though in reality they are not, than the rights of the former kind. Let us therefore proceed to examine how far all laws ought, and how far the laws of Ontario actually do, take notice of these absolute iiglit.«?, and provide for their lasting security. The absolute rights of n\an, considered as a f ree Natumi agent, endowed with discernment to know good from ''"''■'>• evil, and with power of choosing those measures which appear to him to be most desirable, are usually summed up in one general appellation, and denominated the natu- ral liberty of mankind. This natural liberty consists pro- perly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature; being a right inherent in us by birth, and one of the gifts of God to man at his crc ation, when he endued him with the faculty of free-will. But every man when he enters N IP ; 30 Rifjhts of Persons [part I 3Edw. IV. 0.4. into society gives up a part of his natural liberty, as the price of so valuable a purchase; and, in consider- ation of receiving the advantages of mutual commerce, obliges himself to conform to those laws which the com- munity has thought proper to establish. And this species of legal obedience and conformity is infinitely more desirable than that wild and savage liberty which is sacrificed to obtain it. For no man that considers a moment would wish to retain the absolute and uncon- trolled power of doing whatever he pleases: the con- sequence of which is, that every other man would also have the same power, and then there would be no security to individuals in any of tl o f^njoyments of life. Political, therefore, or civil liberty, which is that of a member of society, is no other than natural liberty so far restrained by human laws (and no further) as is necessary and expedient for the general advantage of the public. Hence we may collect that the law which restrains a man from doing mischief to his fellow-citi- zens, though it diminishes the natural, increases the civil liberty of mankind; but that every wanton and causeless restraint of the will of the subject, whether practised by a monarch, a nobility, or a popular assem- bly, is a degree of tyranny; nay, that even laws them selves, whether made with or without consent, if they regulate and constrain our conduct in matters of mer •^ indifferences, without any good end in view, are regula- tions destructive of liberty ; whereas, if any public advantage can arise from observing such precepts, the control of our private inclinations, in one or two par- ticular point will conduce to preserve our general free dom in other matters of more importance, by supporting that state of society which alone can secure our inde- pendence. Thus the statute of King Edward IV., which forbade the fine gehtlemen of those times (under the degree of a lord) to wear pikes upon their shoes or boots of more than two inches in length, was a law that savored of oppression; because, however ridiculous the fashion then in use might appear, the restraining of it by pecuniary penalties could serve no purpose of com- mon utilitv. But the statute of King Charles II., which CHAP. I, 5; 1] Absolute. 81 % Car. II. .-. 3. 1 ' 1 prescribed a thing seemingly as indifferent (a dress for the dead, who were all ordered to be buried in woollen), was a law consistent with public liberty, for, according to the opinion of that day, it encouraged the stjipl;' trade, on which in great measure depends the univer- sal good of the nation. So that laws, when prudently framed, are by no means subversive, but rather intro- ductive of liberty; for (as Mr. Locke has well observed) where there is no law there is no freedom. But then, on the other hand, that constitution or frame of govern- ment, that system of laws is alone calculated to main- tain civil liberty, which leaves the subject entire master of his own conduct, except in tho"«e points wherein the public good requires some direction or restraint. The idea and practice of this political or civil liberty flourish in their highest vigor under our constitution, where it falls little short of perfection, and can only be lost or destroyed by the folly or demerits of its owners. Experience has shown that it is peculiarly adapted to the preservation of the inestimable blessing of liberty even in the meanest subject. And this spirit of true liberty is so deeply implanted in our constitution, and rooted even in our very soil, that a slave or a negro, the moment he landed in England, before slavery was abol- ished throughout the British Empire, fell under the pro- tection of the laws, and so far became a free man ; though the master's right to his services might possibly still continue. By statute of Parliament of Upper Can- ada, passed 1793, slavery was prohibited, and remains 139, s. i prohibited to-day. The absolute rights of Canadians (which, taken in a political and extensive sense, are usually called their liberties), as they are founded on nature and reason, so they are coeval with the for'n of government trans- mitted to us from England; though subjci t at times to iiuctuate and change: their e ablishment (excellent as it was) being still human. The vigor of its free constitution has always deliv- ered England from its embarrassments; and, as soon as the convulsions consequent on successive struggles ended. m Geo. III. 0. 7. s. 1(L^C.) R. S. O. c. ■ ' * . . I ; ■>. '' 'iij 1, . ..r ii !i 82 Hi (jilts of Pet'sons (I'AUT I Cliurta, Potition (if KiKl.t, Haln^as Corpus, Bill of RiKhts, Act of Settk'inont Mirw? pri- niiiry aljso- Into riff lits of persons. Right of personal security. 1. Lift'. Code, 1892, sees. 271.'- 274. the balaiu'c of rij^hls and llborties h(M11«m1 \o its proper Icvt'I; and Ww'w fundani(>nial ai'litloH were fr«)nj time to time asserted in Parliament, as often as they were tbonjjlit to be in danger. The rights tliemselvea, thus detined by atjitutes, consist in a number of private immunities; wliich will appear from what has been premised to be indee*! no other tlian either the n'sidtium of natural liberty, which ia not required by the laws of society to be sacrificed to public convenience; or else those civil privileges which society has engaged to provide in lieu of the natural liberties so given up bj' individuals. These, therefore, were fornuM'ly, either by inheritance or ])urchase, the rights of all mankind; but, in most otlier countri«'s of the world being now more or less debased and destroyed, they at present may be said to remain, in a peculiar and emphatical manner, the riglits of the pi'ople of Engljind, and by them transmitted to the people of Ontario. And these may be reduced to three principal or primary articles : the right of personal security, the right of per- sonal liberty, and the right of private property; because, as there is no other known method of compulsion, or of abridging man's natural free will, but by an infringe- ment or a diminution of one or other of these important rights, the preservation of these inviolate may justly be said to include the preservation of our civil immuni- ties in their largest and most extensive sense. I. The right of personal security consists in a per- son's legal and uninterrupted enjoyment of his life, his limbs, his body, his health and his reputation. 1. Life is the immediate gift of God; a right inhe- rent by nature in every individual, and it begins, in con- templation of law, as soon as an infant is able to stir in the mother's womb. For if a woman is quick with child, and, by a potion or otherwise, kills it in her womb; or if any one beat her, whereby the child dies in her body, and she is delivered of a dead child, this, though not murder, was, by the ancient law, homicide or man slaughter. Under the Criminal Code any person admin- istering drugs or using instruments to procure abortion. a *i' ll if m 1 1 CHAP. I. ^ 1] Absolute. S3 is (leclaved f?uil(.v of aii iiMlicljihlc olTcnet' and is liable to iniprisoniiiciil lor life. All iiil'iiul "(11 ventre sji mere," or in the mother's i-'<'ivr. II, woinlt, is supposed in law to be born for many purposes. It is capable of liavinj;- a lejjjacy made to it. It ma y ^vm. in. have a j^uardian assij^ned to il ; and it is enabled (o liavei^- "»• an eslale limited to its use, ainl to take afterwards by such limitation, as if it were then actually born. An unborn infant may also take by descent, but until its birth the jiresumptive heii- may <'ntei' and receiv. Repuia- the arts of detraction and slander, are ri{?hts to which*'""" every man is entitled, by reason and natural justice ; since without these it is impossible to have the perfect enjoyment of any other advantage or right. But these three last articles (being of much less importance than those which have gone before, and those which are yet to come), it will suffice to have barely mentioned among the rights of persons. II. Next to personal security, the law of Ontario Personal regards, asserts, and preserves the personal liberty of '^*^' individuals. This personal liberty consists in the power of locomotion, of changing situation, or moving one's person to whatsoever place one's own inclination may direct, without imprisonment or restraint, unless by due course of law. Concerning which we may take the same observations as upon the preceding article, that it is a right strictly natural; that the laws of Ontario have never abridged it without sufficient cause, and that in this Dominion it cannot e^er be abridged at a mere dis- i\^: I i 36 Rights of Persons [fart I ■1 Magna Charta. 3 Car. I. 16 Car. I. 0,10. 31 Car. II, 0. IW. & M. St. 2, c. 2. R. S. O. c. 70. cretion of the magistrate, without the explicit permis- sion of the laws. Here again the language of the Great Charter is, that no freeman shall be taken or impris- oned but by the lawful judgment of his equals or by the law of the land; and many subsequent old statutes expressly direct that no man shall be taken or impris- oned by suggestion or petition to the King or his council^ unless it be by legal indictment, or the process of the common law. By the Petition of Right, 3 Car. I., it is enacted that no freeman shall be imprisoned or detained without cause shown, to which he may make answer according to law. By IG Car. I. c. 10, if any person be restrained of his liberty by order or decree of any illegal Court, or by comrrmE iio King's majesty in person^ or by warrant of the (' t)oard or of any of the Privy Council, he shall, upon demand of his counsel, have a writ of habeas corpii;, to bring hi« body before the Court of King's Bench or Comnioa Pkas, who shall determine whether the cause of his commitnient be just, and there- upon do as to justice shall appertain. And by 31 Car. ' II. c. 2, commonly called the Habeas Corpus Act, the methods of obtaining this writ are so plainly pointed out and enforced, that so long as this statute remains unimpeached, no subject in Ontario can be long detained in prison, except in those cases in which the law- requires and justifies such detainment. And, lest this Act should be evaded by demanding unreasonable baiU or sureties for the prisoner's appearance, it is declared by 1 W. & M., St. 2, c. 2, that excessive bail ought not to be required. The Habeas Corpus Act applied only to cases of commitment for criminal or supposed criminal matter, but the Act now extends to every case where a person is restrained of his liberty, except persons impris- oned, for debt or by process in any civil suit, or by judgment of any Court. The liability to imprisonment for debt is recognized by our law, as we shall see later on. Of great importance to the public is the preserva- tion of this personal liberty; for if once it were left in the power of the highest magistrate to imprison arbi- trarily whomsoever he or his officers thought proper to sib COM qm not nio; mai stri sitv CHAP. I, § 1] Ahsolute. 37 (as in some foreign countries is daily practiced), there . would soon be an end of all other rights and immunities. Some have thought that unjust attacks, even upon life or ])roperty, at the arbitrary will of the magistrate, are less dangerous to the commonwealth than such as arc made upon personal liberty of the subject. To bereave a Kian of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once con- vey the alarm of tyranny throughout the whole king dom; but confinement of the person, by secretly hurry- ing him to gaol, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government. And yet sometimes when the state is in real danger, even this may be a necessary measure. But the happiness of our constitution is, that it is not left to the executive jjower to determine when the danger of the state is so great as to render this measure expedient: for it is the Parliament only, or legislative power, that, whenever it sees i)roper, can authorize the Crown, by suspending the StisjK'nsion Habeas Corpus Act for a short and limited time, to?f^**^" ^ ' Corpus imprison susp«»cted persons without giving any reason Act. for so doing. This experiment ought only to be tried in cases of extreme emergency, and in these the nation parts with its liberty' for a while in order to preserve it forever. The effect of a suspension of the Habeas Corpus Act is to prevent persons who are committed upon certain charges from being bailed, tried or dis- charged, for the time of the suspension, except under the provisions of the Suspending Act, leaving, however, to the magistrate, or person committing, all the respon- sibility attending an illegal imprisonment. It is very common, therefore, to pass Acts of Indemnity subse quently for the protection of those who either could not defend themselves in an action for false imprison- ment without making improper disclosures of the infor- mation on which they acted, or who had done acts not strictly defensible at law, though justified by the ueces- eity of the moment. n: ^r ill m 'Mi 38 Rights of Persona [PAIIT I I m. The confinement of the person, in any wise, is an imprisonment. 80 that keeping a man against his will in a private house, putting him in the stocks, arresting or forcibly detaining him in the street, is an imprison- ment. And the law so much discourages unlawful con- finement, that if a man is under duress of imprisonment,^ which we have explained to mean a compulsion by an illegal restraint of liberty, until he seals a bond or the like, he may allege his duress, and avoid the extorted bond. But if a man be lawfully imprisoned, and, either to procure his discharge ov on any other fair account, seals a bond or a deed, this is not by duress of impris- onment, and he is not at liberty to avoid it. To make imprisonment lawful. It must either be by process from the Courts of judicature, or by warrant from some legal oflBcer having authority to commit to prison; which warrant must be in writing under the hand and seal of the magistrate, and express the cause of the commit- ment, in order to be examined into (if necessary) upon a habeas corpus. If there be no cause expressed the jailer is not bound to detain the prisoner. A natural and regular consequence of this personal liberty is, that every Canadian may claim a right to abide in his own country so long as he jjleases, and not to be driven from it unless by the sentence of the law. The King, indeed, by his royal prerogative, may by order of Court or by arrest for cause, prohibit any of his sub- jects from going into foreign parts without license. This may be necessary for the public service and safe- guard of llie commonwealth. But no power on earth, except the authority of Parliament, can send any Cana- dian out of tlie laud against his will ; no, not even a criminal. For exile, and transportation, are punish- permissiblements at present unknown to the common law, and when- ever the latter is now inflicted, it is either by the choice of the criminal himself to escape a capital punishment, or else by the express direction of some modern Parlia- ment. To this purpose the Great Charter declares that no freeman shall be banished, unless by the judgment of his peers, or by the law of the land. Exile not - M 'J! !!■: [PAIIT I , is aQ lis will restinjf iprison- ful con- >nment^ I by an [ or the xtorted I, either iccount, imprid- make 88 from ne legal which [ seal of commit- •y) upon jsed the sersonal •ight to and not the law. t)y order his sub- license, nd safe- n earth, ly Cana- t even a punish- id when- e choice ishment, 1 Parlia- ires that Lidgment CHAP. I, § 1] Absolute. 39 And by the Habeas Corpus Act, 31 Car. II., c. 2 iCar. ii. (that second Magna Charta, and stable bulwark of our liberties), it is enacted that no subject of this realm, who is an inhabitant of England, Wales or Berwick, shall be sent prisoner into Scotland, Ireland, Jersey, Guernsey, or places beyond the seas (where they cannot have the full benefit and protection of the common law), but that all such imprisonments shall be illegal; that the person who shall dare to commit another contrary to this law shall be disabled from bearing any office, shall incur the penalty of a prasmunire, and 'be incaapable of receiving the King's pardon; and the party suffering shall also have his private action against the person committing, and all his aiders, advisers and abettors, and shall recover treble costs, besides the damages, which no jury shall assess at less than five hundred pounds.* The law is in this respect so benignly and liberally construed for the benefit of the subject, that, though within the realm, the King may command the attend- ance and service of all his liegemen, yet he cannot send any man out of the realm, even upon the public service, excepting sailors and soldiers, the nature of whose em- ployment necessarily implies an exception. He cannot even constitute a man lord deputy or lieutenant of Ire- land against his will, nor make him a foreign ambassa- dor. For this might, in reality, be no more than an hon- ourable exile. The only person who may be sent out of the limits of Canada against his will is a criminal who Kxtradi- has committed some crime or offence in a foreign country, and has since taken refuge in Canada. This delivery is called extradition, and treaties have been made with various foreign states providing for the reciprocal inter- change of such persons. We are principally' interested in this matter in our relations with the United States of America, our neighbours. It is well to take a short review of our position as far as they are concerned. Their obligation to us is the same as ours to them. •25 & 2(5 V'ct. chapter 20 (Imperial Act) enacts that no writ of habeas corpus shall issue out of England by authority of any Judge or Court of Judicature into any colony or foreign dominion of the Crown provided with a Court of justice authorized to grant that writ. - m ill 40 liiqhtH of Persons [I'AUT I :l R. S. C. c. 14-'. Swi ftlsn rc Vict. o. :w (Doni.) Provision \h niiulo for carryiiif;; into etToct within the Dominion th(> Nni'i-cndcr of nnch criminals in tli(> case of any forcifjn slal*' with whicli there is an cxtiiMlition treaty. All .Ins of Snperior Conrts and of the Connty Oonrts of any i)i'ovince, and all commissioners a|>]>oin(ed for the i)nriK»se from time to time in any province by the (Jovernor in conncil iinder the };reat seal of <'aiuid;i are anthorized to act jndicially in extradition matters nnder the Act. No jurisdiction is conferred by the Act in habeas corpus matters. Whenever the Act applies a Jud{?e may issue his Avarrant for the Jipprehension of the fnjfitive, on a foreif?n Avanant of arrest, or (►f an infor- mation or complaint read befor«» him, and en such evidence or on such proceediufjs as in his opinion would justify the issue of his warrant if the crime of which the fugitive is accused or allejjed to have been convicted had been committed in (panada. Every fujjtitive is liable to be ai)prehended whether the crime or conviction in respect of which the sur- render is sought was committed or took place before or after the date of the arrangement with the foreign sti'.te or of the coming into forct' of the Extradition Act, and whetluM" there is or is not a crimina; jurisdiction in any Court of Her Majesty's dominien 'e charged with an indictable offence committed in Canada. The Judge must receive u])on oath or allrtrmation the evideuct' of any witness tendered to show the truth of Ihe charge or the fact of the conviction; lu' must also receive in like manner any evidence tendered to show that the crime of Avliich the fugitive is accused, or alleged to have been convicted, is an offence of a politi- cal charactter or is for any other reason not an extradi- tion crime, or that the proceedings are being taken with a view to prosecute or punish the fugitive for an offence of a political character. Depositions taken in a foreign state may, if duly authenticated, be received in evidence; the copies used must be duly authenticated by a Judge, magistrate or officer of the foreign state, or under the Si! ' i I 'I • iiAi'. I, v; n Ahnnbite. 41 odlciiil Hciil of tlu' Minislor of .Inslico, or some otlirr Miiiis(«'r of Hie for<'i^n Hliitc or of tin- rolony. If nucIi rov(' 1liJi( llio fnj{iliv<' wnw conviclod of :iii ox- ti'!i(li(ion « riiiic, or if siith cvidciu'c \h jirodnccd as would, jicccu'dinji; to llio liiw of Ciiuiidji, juslifv liis ('((inuiillnl lor liiiil, (ln'n llic dudjjo must issuo his wjuranl for llio ritnunitlal of Hie futritivo, or (o r«*nuiin until suri'oiuh'rod or discliaifjcd accoi'dinjz to law. When the .Tudpo coin- iiiils a fn}j:itivo to prison, he must at llic sauu' tiino iii- forni iiiui that ho will not ho surrendered until after the e\|)iration of lifteen da.vs, and Ihat he has a ri/ i to ap|»l.v for a writ of halieas <'«>rpus. He must transmit to (he Minister of .lustiee a certitlcat*' of the committal, with a eop.v of all the evidence taken before him not ali'eady transmitted, and su<*h report on the case as he thinks lit. A requisition for the surrender of a fti/fitive < liminal may be made to the Minister of Justice by any jx'rson recofi^nized by him as a consul or oflicer of th<' foreifjn state resident at Ottawa, or by any Minister of sl.ite i'ommunicatinj; with tlu» Minister of Justice lhrou}j:h the diplomatic rejjresentative of Her Majesty in that state, or if neither of these modes is convenient, (hen in some other nianner. No fu};itive is liable to sur render if it ai)pears that the olTence in respect of which tJM' proceediufifs are taken is of a ])olitical character, or that the j)roceedin};s are bein}; taken with a view to pro- secute or jmnish him for an otT«'nce of a ])olitical char- acter. If the Minister of Justice determines that this is tlie fact, or that the foreign state does not intend to make a re(iuisition for surrender, he may refuse to make an order for surrender and cancel any order made by him, or any warrant issued by a Judge, and order the fugitive to be discharged. A fugitive must not be surrendered until after the expiration of fifteen ♦lays from the date of his committal for surrender, or if a writ of habeas corpus is issued, until after the decision of the Court remanding him. Upon tiie requi- sition of the foreign state the Minister of Justice may under his hand and seal order a fugitive who has been committed for surrender to be surrendered to the per- II ■■}■ '■ I: It- -I '* > ■'■ 'L m s 'J It ^m r 42 Rights of Persona [part I m Treaty, 12th July, il t son' who may be duly authorized to receive him. The person to whom tlie order is directed may hold in cus- tody and convey tlie fugitive within the jurisdiction of the foreign state, and if he escapes out of custody he may be retalien. If a fugitive is not surrendered and conveyed out of Canada within two months after liis committal for surrender, or if a writ of habeas corpus is issued, then within two months after the decision of the Court over and above the time required to convey him from prison by the readiest way out of Canada, any one or more of the Judges of the Superior Courts of the province in which the person is confined, having power to grant a writ of habeas corpus, may order the fugitive to be discharged out of custody. A requisition for the surrender of a fugitive criminal from Canada may be made by the Minister of Justice to the proper function- ary in the foreign state. Whenever any person is sur- rendered by a foreign state in pursuance of an extradi- tion arrangement, he cannot, until after he has been restored or lias had an opportunity of returning to the foreign state, be subject to prosecution or punishment for any other offence committed prior to his surrender for which he could not under the arrangement be pro- secuted. The (Extradition treaty with the United States of America is dated 12th of July, 1889. By a previous treaty, datc^d 9th of August, 1842, provision was made for the extradition of persons charged with murder, piracy, arson, robbery, forgery or the utterance of forged paper. By the later treaty the former treaty was ex- tended to the following crimes: — 1. ^Manslaughter when voluntary. 2. Counterfeiting or altering money; uttering or bringing into circulation counterfeit or altered money. 3. Embezzlement, larceny, receiving any money, valuable security or other property, knowing the same to have been embezzled, stolen or fraudulently ob- tained. 4. Fraud by a bailee, banker, agent, factor, trustee, or director or member or officer of any company, made criminal by the laws of both countries. CHAP. I, 8 1] Absolute. 4a was ex- 5. Perjury, or subornation of perjury. 6. Uapo, abduction, cliild-stcalint?, kidnapping. 7. IJurglary, housobroakinp or shopbreaking. 8. IMracy by the law of nations. 9. ^"volt, or con8i)iracy to revolt, by two or more person board a ship on the high seas, against the authority of the master; wrongfully sinking or destroy- ing a vessel at sea, or attempting to do so; assaults on board a ship on the high seas, with intent to do grievous bodily harm. 10. Crimes and otTences against the laws of botli countries for the suppression of slavi ry and slave-trading. It is specially jirovided that a fugitive criminal nmst not be 8urrend<'red when the offence in respect of which his surrender is demanded is of a political character, or if he proves that the application has, in fact, been made with a view to try or punish him for an offence of a poli- tical chi 'icter. No person surrendered under the treaty is to I able or tried, or be punished for any political crime o- a'ence, or for any act connected with it com- mitted previously to his extradition. No person can be tried for any offence committed prior to his extradition other than the offence for which he was surrendered, until he shall have had an opportunity of returning to the country from whidi he was surrendered. All articles seized, which were in the possession of the person at the; time of his apprehension, arc surrendered with him, sub- ject to the rights of third persons. Extradition treaties have been uuide with nearly every country in the world besides the United States of America. The Parliament of the United Kingdom passed in the years 1870 and 1873 Acts relating to the subject of extradition, but it was declared that if by any law made after the passing of the Imperial Act of 1870 the Legislature of anv'^^.^^Y'*'*- isritish possession nmde provision for carrying into Act.) effect the surrender of fugitive criminals, then the Im- perial Act was to be suspended. On the 21st of March, 1890, the Parliament of Canada, having meantime passed an extradition Act, these Imperial Acts were suspended. Should the Canadian Act of 1886 be repealed, then the Imperial Acts of 1870 and 1873 would be revived. til fil 1 ' 1 it if '■ .ha ai 44 Rifjhfs of Persons [I'ART I RiRlit of property. \ 5 Edw. III. c. !); 25 Edw. III. c. 4 ; 2S Kdw. III. c. S. III. Tlic lliird Mb.solutc rijijlit, inliofcnt in ♦•very Can.'MliiUi, is tliiil of pi-opciiy, whi<'Ii (tonsisls in llic free use, enjoyment and disposal of all his acquisitions, with- out any conlrol or diminution, save only by the laws of Die land. The orij^inal of private proixMly is i)i-obal)Iy fonndt'd in nature; but cerlaiidy the modilicali(ms under which we at present find it, the method of conservin}? il in the jiresent owner, and of Iranslaliufij it from man fo man, arc entirely derived from society, and are some of IJiose civil advan(a!i;es, in <'Xchanj^e for whi(;h oxi'vy individual has resi«?ned a i)art of his natural liberty. The laws of Ontario are, therefore, in point of honour and justice, extr<'mely watchful in ascertaining and pro- t land. And by a variety of ancient stalut<'s it is enacted Ihat no man's lands or goods shall be seised into the King's hands against the Great ('barter and the law of ihe land; and that no man shall be disinherited, nor ])ut out of his franchises or freehold, unless he be duly brought to answer, and be forejudged by course of law; and if anything be done to tlie contrary, it shall be re- dressed, and holden for none. So great, moreover, is the regard of the law for private jtroperty, liiat it will not authorize the least vio- lation of it; no, not even for the general good of the wlude community. If a new road, for instance, were to be made througli the grounds of a ])rivate person, it might i»erha])s be extensively benelicial to the public; but the law permits no man, or set of men., .o do this without consent of the owner of the land.** In vain it may be urged, tlmt the good of the individual ought to yield to that of the community; for it would be dangerous to allow any private man, or even any public tribunal, to be judge of this common good, and to decide * See the provisions of R. S. O. c. 205, an Act respecting the Public Health, which appears to contravene tliie principle. The Act is very etriii^cnt and arbitrary in some respects. CUM*. I, 5 1] Absolitte. 45 f wlictlier it bo ('X|HM]ient or no. IJcsidea, the public good is ill nolliinfjj more ossentially intt'i'(>stay any aids or taxes, even for the defence of the suntiititm. realm or (he su])port of the Government, but su^n iis are imjtosed by his own consent, or that of his represen- tative in Parliament. By the statute of 25 Edward I. 2:. Edw. i, cc. 5 and (I, it is provided, that the KinjJt shall not take ^^" ''' ' any aids or tasks but by the common assent of the realm. And what that c|)robali()n or ('(ui'leinnation of tlie coiHluct of public affairs. Tlie law considers it expedient to make ])rovision for the calliuj; and orderly holdiufj: of these meetings ann ij.s. o. of twelve or more freeliohlers, citizens or burgesses of^'^^^* the municipality having a rij.'! to vote for members to serve in tlie Legislative Ass<'mbly in respect of j)roperty held by them in the municipality. On receipt of such recpiisilion thi' sherilf of the <'ounty, or the mayor or other municipal ofllcer of the municii)ality may call the meeting. A meeting so called beconu's a public meet- ing, and notice must be given by the person calling it that all persons attending the meeting will be within the protection of the Act Hespecting Public Meetings; this notice must be issued at least three days befcu'o the day upon which the meeting is called, and must set forth the names of the persons signing the requisition or ji competent number of them, that the meeting is called under the Act, and that the meeting and all persons attending it will be within the protection of the Act. Upon information on oath before any justice of the peace that any public meeting of the inhabitants or any par- ticular class of the inhabitants of any municipality is appointed to be held at any place within the jurisdiction of the justice of the peace, and that there is reason to believe that great numbers of persons will be present at that meeting, and that it has not been called as a public meeting, then any two justices of the peace may give notice of that meeting, and may declare the meeting and all persons fittending it within the protection of the Act, and requiring all persons to take notice of the fact and govern themselves accordingly. The person who calls the meeting must himself attend, and must remain at or near the place appointed for the meeting until it has dispersed. Every person who presides over the meeting • K.B.— 4 1 ' " m 'W 60 Rights of Persona [part I SI must publicly read tlic summons or notice callinj? it. Any person who attempts to interrupt or disturb the meeting": may be removed by order of the chairman; the hitter may. by an instrument in writing under his hand and with liis own view, adjudjje any j)erson guilty of interruption or disturbance, and upon that conviction any justice of the peace may forthwith commit the dis- turber to jail or confinement for any period not exoeed- injjf forty-eifjht hours from the time of the con.mitment. The chairman is entitled to call for support from all jus- tices of the peace, constables and the public {generally, Special constables may be sworn in to aid in preserving the peace. Any a' lion brought against any person for anything done under the authority of the chairman must be brought within twelve months next after the cause of action. 5. Carrying 5. The fifth and last auxiliai'v right of the subject that I shall mention is that of having arms for their defence suitable to their condition and degree, and such as are allowed by laAV, which is also declared by the 1 w. & M. same statute, 1 W. «& M. st. 2, c. 2, and it is indeed a * ■ '^' ' public allowance under due restrictions, of the natural right of resistance and self-preservation, when the sanc- tions of society and laws are found insufficient to restrain the violence of oppression. The training of per- sons, without authority, to the use of arms is, however, prohibited.* Code 1892, • By articles 114, 115 of the Criminal Code of 1892, persons cominR 88. 114, 115 armed to a public meeting,', or \A'ithin one mile of the place appointed for the meeting, are guilty of an indictable offence and liable to fine and imprisonment. Lying in wait for persons returning from a public meeting with ill intentions, or to provoke a breach of the peace, is also punishable. See also other provisions of the Code as to carrying wea- pons (Articles 102-117). CHAI'. I, § 2] Rfhdice (Pnblit'). 51 CIIAPTEll I. SI<:CTI()N 2. lU:i-ATIVK |{I<;HTS OK IM:RS()N.S (I'UBIJC). Till'". MOST UMvi;!is\r, Hki.ation IS IIIAr I'K (InVKUNMIlNT. MaiIISIIUIKS AM) PkoI'I,!'; M.V'llSI KA'l'I'.H AUK Sl'I'UKMlC ANI> iSriiiniDiNATi:. 8 U I' UK MIC MAdlSTUATKH. riupreiiie rmigiHtriicy niay ho VL'Hte'l in one person or Mi^parated into distinct Icf^is- liitive and executive aiitlio- rities. In EN(iMsit (loNSTiTrxroN. The Leiihhttivi' llrnnvU. Kint;, Lords and Com- mons (Parliament.) Thf K.rerntive. The Kin<,'. In tick Dominion of C'anada. The Li'ijUldtire liranch, Kin^, Senate and Com- mons. The K.verutit'i' liranch. The Kins, represented by the Governorfleneral. In TlIK pROVINtK 01' Oni'auio. The Li'ifixhttirc linnicli, Lieutenant-Governor and Letjislative Assembly. The K.vecutive liniiirh. The Lieutenant-Governor. TiiK Constitution of Pahma- MKNT. 1. Mannmr and Time of Assemdlino liy King's writ. In Canada and Province by instrument under Great Seal. Place of assembly. Time for assemblin},'. 2. CONSTITCENT PaHTS OF A PARLIA- MENT. The Kiiifi'n Majeatft. The Governor-General and Lieutenant-Governor. 1. TiiK Kino's TiTi.n. 2. TiiK KiNfi's CorNcii.s. The King's Privy Council for Canada. The I'^xecutive Council of Ontario. .!. TllK KiNd's PllEROOATIVE. In I'Ingland, In (%inada, In Ontario. 4. Thk Kino's Hevenuk. In I'liigland, In Canada, 111 Ontario. The Senate — Numberand qualifications for Senator. The Jliiiise of CiDiiiiions — Niitiiber of members. 3. Laws ani> CrsioMs Uiu.atino to Pakmamf-nt. I'ower and jurisdiction. Privileges. Indej)endence. lOlection of members. 1. Qualifications of Electors. Dominion — Provincial. '2. Qualifications of Members. I)is(iu!ilitications for Dominion, for Province. H. Proceedings at Elections for Dominion, for Province. Sl'llOHDINATE MaOISTKATES. SlIKHIFFS. 1. Keejier of the King's Peace — may call on jmsse comi- talus. 2. Must execute process of Su- perior Courts. Bailiffs— of hundreds. Special Bailiffs, Bound Bailiffs. \ \ 1!!! * v:,\ iiil iiTTir 62 Rhjlds of l^crmns I'AUT I Magis- trates iiiul people. Supreme Miigis- tracy. (lAOIJ'.UH. StiiliiloH re^iilivtiii^ coiuluct uf Slu'rilTs iiiid (iaoluru. (!(HiONr.i;s. J'owerH - jmliciii,! or minis turiiil. Mhoriff'H Hubstituto. MlisorH. lii(|iieBtH — proceiltiro toobtiiiii. JUSTICKS OK rilK Pkac K. I'jithor virttite o(j\cii or up- pointed. IIow ili'toriniimhlo. I. Di'inisoof Orowu. 'J. J'lxproBH Writ. 'A. SiipiTni'iled-H, 4. New CominisHion. '). Act:(!HHi()ii to Odif.e of HlioritT or (Joronor. Purport of t'oinmiHsioii. HtiitiiteH proteotiiifj. Porac'K Maiiistiiati-.s. (!(ii;ntv (!iio\v.N Attouneyh. ('OMMIHHIONKIIH C)l' rorilCK. CONSTAIILKH. County Constables, Provincial (!onstabloH, lioardM of (^otiiiniHHioMoru of I'olico— PowerH of. We arc next to treat of the rijjlits and duties of per- sons, as Ihoy are members of society, and stand in various relations to eacli other. These rchitions are cillier public or private, and we will first consider those that are public. The most universal public relation, by which men are connected together, is that of government; namely, as governors and governed, or, in other words, as magis- trates and people. Of magistrates some also are supreme, in whom the sovereign power of the state resides; others are subordinate, deriving all their author- ity from the supreme magistrate, accountable to him for their conduct, and acting in an inferior secondary sphere. In all tyrannical governments the supreme magis- tracy, or the right of both making and of enforcing the laws, is vested in one and the same man, or one and the same body of men; and where these two powers are united together, there can be no public liberty. The magistrate may enact tyrannical laws and execute them in a tyrannical manner, since he is possessed, in quality of " dispenser of justice," with all the power which hu as legislator thinks proper to give himself. But when the legislative and executive authority are in distinct hands, the former will take care not to entrust the latter with so large a power as may tend to the subversion of its own independence, and therewith of the liberty of the subject. In England, this supreme power is divided into two branches: the one legislative, to wit, the Par- CHAP. I, § '-i] Relative (Pahl'w). b'.\ liiiiiM'iil, roiisiHtinp of Kinp, Lords and Commons, tho '" I'^nR- oduT cxcciitivt', eonsisHnf; of tlie Kinj? ahrne. Ill tlu' Dominion of Canada there are also two in f.inadu, bninclics «»f the Hiipreme power: the legislative consists \',^;^^V,^ of tlic Kinj;, (he Senate and the House of Commons; tlic "'^ "".()!», executive is vested in the Kin/j;. In the Province of Ontario tlu.' Legislature consists of the Lieutenant-Cov- crnor and the Legislative Assembly of ()ntari<»; the inOiitaiin executive is represented by the Lieutenaniriovernor. ^^'illlin llie limits of their n'sju'ctive Jurisdictions the jK»\vers and authorities of tlu' Legislatures of I lie Domin ion and province are similar, bolli being, so far as Iheir autiu)ri(y resjK'clively extends, the supreme and absolute authority in the state. An «'n(|uirv into the constitution of I'arliam<'nt '^.' ""'*'^'V.' ' • tiiiii of j'ar- involves a consideration of, lirst, the manner and tinn* liauKnt. of its assembling ; secondly, its const it Uv-nt parts ; thirdly, the laws and customs relating to Parliament, considered as one aggregate body; fourtlily and lifthly, the laws and customs relating to each house, sejiarately and distinctively taken; sixthly, the methods of i»ro ceeding and of nniking statutes in both houses; and, lastly, the manner of I'arliament's axplain the first five jioints. leaving the other matters as too special in their nature to be investigated here. I. As to the nnmner and tinn- of assend)ling. The .Nranncr Parliament is to be regularlv summoned bv the King's 'T' *^""® writ or letter, issued ont of (Miancery, by advice of the '■,''"?"? Privy Council, at least forty days Ix'fore it begins to sit. m.'nr It is a branch of the royal jtrerogative, that no Parlia ment v.m be convened by its own authority, or by the authority of any, except the Iling alone. And this pre- rogative is founded npon very good reason. For, suj)- posing it had a right to nu^et spontaneously, without being called together, it is impossible to conceive that all the nu-mbers, and each of the houses, would agree unanimously upon the proper time and place of meeting; and if half of the members met, and half absented them- t. ! 5,- :^ I .: - ■ i|rpp tiii ^ \'\ [ i 1 ' 1 - j : 54 HightH of Personn [part I selves, who sluill dt'tcnniiH' which is icsilly tlie h'gislativt' body, 1h«' jmi'l assciubled, or that wliich Hta.VH away ? It is tliei't'foiv lUM'cssai'y tliat th«' Parliiiment slioiild be oalled toj^ether at a d<'tei'iuiiuUe time and place, and highly becoming its dignity and independence, that it should be called together by none but one of its own constituent parts; and, of the three constituent parts, this otHce can only appertain to the King, as he is a single person, whose will may be uniform and steady, the first in the nation, being superior to both houses in dignity, and the only branch of the Legislature that has a sep arate existence, and is capable of performing any act at a time when no Parliament is in being. Nor is it an exception to the rule that, on the demise of a King or Queen, if there be then no Parliament in being, the last Parliament revives, and is to sit again for six months, unless dissolved by the successor; for this revived Par lianient must have been originally summoned by the Crown. R. S. C. c. 11, s. 1. R. S. O. C. 1 1, H. 2. InCanadii. If, on the demise of the Crown, there be a Parliament or Legislature in being, neither is dissolved, but they continue and meet as if the demise had not happened. In Canada the (Jovernor-General summons the House of Commons in the Queen's name by instrument In Ontario under the Great Seal of Canada, and the Lieutenant- Governor summons the l*rovincial Assembly by similar B. N. A. instrument under the Great Heal of the Province. As Act, sees. 38, 82. to the place of assembly, the seat of Government for the Ibid. seci. Dominion is Ottawa, that of the Province is Toronto, ' ' ■ and there Parliament and the Local House respectively meet. Ibid. sees. 20, 8(). As to the time of assembling. There must be a session of both the' Dominion Parliament and the Pro- R. s. (). vincial Legislature once at least in every year, so that c. 11, s. 4. twelve months shall not intervene between the last sit- ting in one year and the first sitting of the next session. II. The constituent parts of Parliament are the next And these are in England the Constitu- ent parts , . , „ ofPaiiia objects of our inquiry. ™^"* King sitting there in his royal political capacity, and the three estates of the realm; the lords spiritual, the lords temporal (who sit, together with the King in one ■11 w CIIAI' I, § 2] ReUdlve (Pahllcj. 56 house), and tlio ooinnions. wlio sit l>v tlu'iiisclvos inf"';'"? ' liiud. jinotlu'i', Aiul tin* Kiiifi iiixl llicsc Hire*' «'Htatt's t<)}j;«'(lu'i' form the jjn'jit corponilion or ImmI.v polilie of the king- dom, of which the Kiii^ >« Hi>i !>«' ('npul, prineipiuni, et tints. For upon their ooniinjj; together tlie King meets tliom, either in person or by represent sit ion; without whi<'h tliere eun be no beginning of n Parliament; and h(.* also has alone the power of dissolving Ihem. In Canada the Tarlianient consists of the King, an I"<^''"'"<^•*• rpper House called the Senate, and the House of Com- r> X. A. nions. In Ontario, there are only two constituent parts, Jit'; ' "**" * tile Lieutenant-Governor and the Legislative Assembly. i„ ()„t,^ri„ Let us now consider these constituent parts of the sovereign power, or Parliament, each in a separate view. L The King's Majesty. JUackstone considers this Th- Kind's subject under the heads of 1, The King's title; 2, His '^'"''"*y- royal family; 3, His councils; 4, His duties; 5, His pre- rogative; (I, His revenue. A discussion of the King's royal family or his duties would be out of place here, and I omit them. On tlie otlier points a fev/ words must be said. The executive government and authoritv of l*- N. A. ' Act ss !' and over Canada is vested in the King, and the com- 15. luand-in-chief of the militia and naval and military forces of and in Canada is also vested in bini. As his ^Fajesty cannot well be personally present in Canada, lie must be represented by a viceroy or deiiuty. His Governor- ofiicial designation is "Governor-General," and his<'tneral. salary is fixed at ten thousand pounds sterling, but the ^,^ ^ j^g amount may be altered by the Parliament of Canada. lie and his successors are a corporation sole; that is, K. s. c. iiltliough an individual, in his othcial capacity he is ' " considered as if he were a corporation. The term will be explained later on. The constitutional position of the Governor-General is that as representative of the King he carries on the (Jovernment of Canada on his behalf and in his name. The duties of the Governor-General are partially defined for him by his commission and instructions. In those issued to Viscount Monck, which were followed as a precedent until 1878. there were contained directions f wnm 56 Rujhts of Personal I PA I IT I which wore inconHistcnt witli the rljjhts oonforrcd hy the ItfitiHh North ATiievica Act. On tlie 51 h October. 1878, a cliaiiKe was made at the iiiHtnnce of the Dominion (lovernment. Since the latter (hitc tlic insliiictions have been the same to all succeedinfj; (Jovernor-i Jcnciala. jind the commissionH luivc been practically only formal evidence of the appointment. To explain the dilTercnco between the ihstrnctions prior to 1878 and subscciuent thereto would reqnii-c an examination of the two sets of commissions side by side. As these two sets of directions can be examined by the reader in books devoted to the subject of constitutional history, I do not propose to insert them in this place. By the existing instructions the (Jovernor-Geueral is required, after taking the oath of allegiance himself, to administt'r that oath to any other person to whom the law requires him to administer it. lie must communi- cate to the Privy (N)unci! for Canada his instructions; he must, in assenting to laws or reserving them, accom- pany them with such explanations as he may think tit, and he must transmit to the Home (Jovernment fair copies of the iiroceedings of I'arliament. He is em]»ow- ered to grant a pardon to any accomplice, not being the actual ])erpetrator of a crime, Avho gives such informa- tion (s shall lead to the conviction of the principal offender. He may grant to any olfender, convicted of any crime, a pardon or respite of execution, and may remit any tines, jHrnalties or forfeitures which may become due and i)ayable to the Crown; but he shall not in any case, except where the offence has been of a political nature, make it a condition of a pardon or remission of sentence that the offender shall be banished or shall absent hiiuself from Canada. Before pardon- ing or reprieving any offender he is .equired to receive, in capital cases, the advice of the Dominion Privy Council, and in other cases, the advice of one at least of his Ministers. In any case where a pardon or reprieve may directly affect the interests of the Empire or any country under the jurisdiction of the Government of the Dominion, the Governor-General must, before pardoning or reprieving, take those* interests specially CHAP. I, i^ 2] Relotirc (Public). 5T into his own pri'sonnl consiilt rjili<»n. in conjnnrtlon with tlic julvicc (»f liis MinistciH. Finally, he nmst not, on jiny i>rt't('nc«' wlintcvci', (piit tlic Dominion withont first ohtaininj,' h'avc ninlcr Ihc Koyai Sifin Manual, or thron}j:h one ()f the principal Secretaries of State. The (lianj;e made in 1S7S was in the direction of retrenching' the prei-ojj;ative of the Crown in Canada, as administered by the (Jovernor-(}»*neral. Foi' each pi'ovince there is an otlicei" styled the Lientenant-tJovernoi', appointed by the (jovern«)r-(}en- eral in council nnder the (ireat Seal of (Canada. The Lientenant-dovernor holds olVice durinji: the pleasure of ; tlu fiOvernor-Ceneral. \o Lieutenaiit-(iovernor is, however, removable within five years from his a|>point- mont, except for cause assij^ned. The r> as(»ns for removal must be <'ommunicateitenant-(Jovern4, 55 Vict. I'. '25, s«'C. 1. The Privy Council. Creation of I'rivy Counsel- lors. the Governor-General in Council of important ques- tions of law or fact toucliiug provincial legislation or the appellate jurisdiction as to educational matters vested in the Governor-General in council by the British North America Act, or by any other Act or law touch- ing the constitutionality of any legislation of the Par- liament of Canada, or touching any other matter with reference to which the Governor-General maj' see fit to exercise the power of reference. The Court is bound to give its opinion upon being re(iuested by the Gover- nor-General to do so. The Province of Ontario has also a similar law for obtaining the advice of the Provincial Court. These proceedings are the only ones in Canada anj'logous to the power of the King to consult the Judges. Even in England the power lias been disputed and is not now exercised. 4. IJut the lU'iucipal council belonging to the King is his Privy Council, which is generally called, by way of eminence, the Council. And this, according to Sir Edward Coke's description of \t, is a noble, honourable, and reverend assembly of the King, and such as he wills to be of his I'rivy Council, in th<' King's court or j>alac('. The King's will is the sole constituent of a I'rivy Coun- sellor; and this also regulates their number, which of ancient time was twelve or thereabouts. Afterwards it increased to so large a number that it was found incon- venient for secrecy and despatch. In modern times no inconvenience arises from the extension of the num- bers of the I'rivy Council, as those only attend who are specially summoned for the i)articular occasion upon whi( h their advice and assistance are required. Privy Counsellors are made by the King's nomina- tion, without either patent or grant; and, on taking the necessary oaths, they become immediately Privy Coun- sellors during the life of the King that chooses them, but subject to removal at his discretion. As to the qualitications of members to sit at this board, any natural born subject of England is capable of being a member of the I'rivy Council: taking the proper oaths for security of the Government, and the declaration for security of the church. But, in order to prevent any CHAP. I, § -2] Relative (Public). 61 lieraous under foreign attachments from insinuating tUeuiselvos into this important trust, as happened in the reign of King William in many inst luces, it is enacted i-i"'- of it, and appoint another. By the common law also it was dissolved ipso facto by the King's demise: as deriv- ing all its authority from him. But now. to prevent the inconveniences of having no council in being at the accession of a new prince, it is enacted by the statute (I (5 Ann©, Anne, c. 7, that the Privy Council shall continue for six months after the demise of the Crown, unless sooner determined h\ the successor. The importance of the Privy Council as a whole, it is to be observed, has much diminished. Its judicial business is transacted by the eJudicial Committee, and ahnost all the executive authority is committed to the Cabinet Council, which consists of particular mem- bers of the Privy Council who are more especially hon- oured with the Sovereign's confidence. Their number and selection depend only on the royal pleasure, b.'t they represent the dominant political party of th ; day. This Cabinet or Ministry usually consists in England of, among other great officers of state, the Lord President of the Council, the First Lord of the Treasury, the First Lord of the Admiralty, and the Secretaries of State for the Home Department, for the Colonies, and for Foreign Affairs. As to the King's council in Canada. For the Do- King's minion it is styled the King's Privy Council for Canada, SnUd'a. '° li j i ■l'" '.} ' } ■ ' . . i Is , 64 B. N. A. Act sees. 11, 13. Rights of Persons [I'AUT I Executive Council in Province. Cabinet. Provincial Executive Council, B. N. A. Act, s. 63. R. S. O. c. 13. 51 Vict. c. 8. Executive business of the Pro- vince. R. S. O. c. 15. See R. S. C. c. 19, aec. 3. and its function is to aid and advise iii tlie government of Canada. Its members are summoned and chosen by the Governor-General, and are removable by him. When the phrase " the Governor-General in council " is used it means the Governor-General acting by and with the advice of the King's Privy Council for Canada. The Lieutenant-Governor is also assisted and advised by a council known as the Executive Council, In both Dominion and Province, the principal ad- visers of the Executive are known as the Cabinet. They hold the chief offices of state, and are responsible to the liegislatrre for their actions. They are, however, as in England, officially unknown to the constitution. The Executive Council provided for the province under the British North America Act is to be composed of the following officers: The Attorney-General, the Secretary and Registrar of the province. Treasurer, Com- missioner of Crown Lands, Commissioner of Agriculture and Public Works. When the phrase ** Lieutenant- Governor in council " is used in the Act it means the Lieutenant-Governor acting by and with the advice of the Executive Council. This Executive Council is now composed of such per- sons as the Lieutenant-Governor nominates. At present the following oflftces of the Executive Council are actu- ally exercised: The Attorney-General, Provincial Secre- tary, Provincial Treasurer, Commissioner of Crown Lands, Minister of Agriculture, Commissoner of Public Works and the Minister of Education. The duties of these officers and their departments may be prescriber* by order in council, and these duties may be exchanged. A member of the Executive Council cannot also be a member of the House of Commons of Canada. The executive business of the province is carried on under the supervision of the Executive Council by public officers. All commissions to these officers remain in force notwithstanding the demise of the Crown. An oath of allegiance is required from all these officers ; the oath being in the following form : " I, A. B., do sincerely promise and swear, that I will be faithful and bear true CHAP. I, § 2] Reliitire rP'thhcj. (55 -4 jille}i;ianco to Her ^Iartments have similar jjowers to those of the de]nity heads of the provincial service. Provision is mad«' for superannuation. Public offlcera must jjive security and take the oath of allegiance in the CC.18, i!>. same way as pulilic officers employed by the province. On the demise of the Crown no commission need be re- newed, but a proclamation must be issued by the Gov- ernor-General authorizing all persons in office as officers of Canada to continue as such. Public aer vice of Canada. R. S. C* c. 17. R. S. C. The departments of the public service of the Dominion are as follows : Depart- ments of public 861* V10A (1) The Department of Justice, over which presides 1. Justice, ij^^. Minister of Justice. His duties are to act as official legal adviser of the Crown, He must see that the ad- ministration of public affairs is in accordance with law. He must superintend all matters connected with the ad- ministration of justice in the Dominion, so far as Domin- ion control extends. He advises upon the legislative Acts and ])roceedin}is of tlie Provincial Legislatures. He also acts as Attorney-General of Canada. As such he advises the hesids of departments on matters of law. He settles all instruments issued under the Great Seal. He superintends penitentiaries and the prison system of Canada. He has the conduct of all litigation for or • The ampiidments to the statutes referred to in the side notes are collected in a table at the end of this section. R. S. C c. 21. OFIAl'. I, § 2] Relative (PahlicJ. 07 53 Vint. o. ll(D()in). ajfJiinst the Crown (»r any public dcpurtnient. In other H'spcctH he lisiH tlu' sanu* powor and authorities as the Attonu'.v-(ieneraI of England. Tlie appointment of a "'"f'^ y 'ct- tsoli('itor-(ieneniI ih also authorized. He must assist the AlionH'y-Cu'ueral in the counsel work of the depart- ment. CD The Department of 1h<' Interior, presided over -2. Interior by the Minister of the Interior. He has the control and management of the atTairs of the North-West Terrilo- !{ S C ries, and also of all ('rown lands whi<'h are 1h<' [Mopeity ^ 22. of the Dominion not sju'cially under the contnd oF the Public Works Department, or of the Deparlmenis of Kailways and Canals, or Mililia and Defence'. Maiine Hospitals and Lijjfhtiiouses, and St. Paul's, Sable and Portajje Islands are also exce}>(ed from his control. The Geolo}?ical Survey of Canada is attached I0 this department. The Minister of the Interior acts also as Superintendent-General of Indian Allaiis. (,'?) The Department of Ajfriculturc, presided over ,■?. Agriciil by the Minister of Agriculture. The subjects undei- his control are: K. S. O. , . ... (•."24! 1. Aj^riculture. L*. Immijjjration and Emij^ration. Scetisto ■ :{. IMiblic Health and (Quarantine. iSTHdn. 4. The Marine Hospital, (Quebec. triui D<' 5. Arts and Manufactures. r/f Vi'ct. e. (J. The Census, Statistics and Registration of Stu- 1-^ (U""')- tistics. 7. Patents of Inventis. 6. Sick and distressed seamen, and the establish- ment, re^Milation and maintenance of marine and seamen's hospitals. 7. River and harbour jiolice. 8. Humane establishments. 0. Lifeboat service, and rewards for savinjj; life. 10. Incpiiries into causes of shipwrecks and casual- ties, and the collection of wreck statistics. 11. Inspection of steamboats and examination of enjrineers and in()uiry into accidents to steam- ers and the conduct of engineers. 12. Examination of masters and mates. 13. Kegistration and measurement of shipping and ])rei)aration of returns of registered shipping of (^anada. 14. Meteorological and magnetic services. 15. Tidal observations on the coasts of Canada. 16. Climatology of Canada. 17. Itispection of vessels carrying live stock from Canada to Europe. 18. Shipping of seamen, shipping masters and shij)- ping oflficeg. 19. Winter communication between Prince Edward Island and the mainland by steamer and ice- boats. 20. Hydrographic surveys. 21. Administration of deck-load law and the subject of deck and load lines. 22. Removal of wrecks and other obstructions in navigable waters. m riiAi'. r, ^ 21 Relative (Pahl'ir). 1',\. S(»ii cojisf iiiid inliiinl ilsh<'i-i('M, niid llx' in;inii;j;«> niciil, I'c^ulalioii iiiul pnjlccliou tlHTcof, iiiul ('V«M'.vlhiiifr r«'liiliii},' Ihcnlo, jiikI llic payment ol liHliiii^ bonnlics. 1*4. Any otlicr duly or jtowvr assi^^nrd 1<> Ilic Minis- 1. s til IV of Stato. I!. S. C. over by llu' Sccrdai'y of Slate foi' Tanada, Ho ban cliarf^o of the state eoii'espon(b'nce, and keeps all state records and pajxTs not Hjtccially transfencd to other de])art nients. He also acts as liefjislrar-dern'ral, and as such rcj^istcrs all instruincnts under the (lr<'at Seal, and all other instiMunents such as wai'ranis of extradition. The Kinartment of Finance is under the super- u. s. c. vision of the Minister of Finance. The department ''• -'"• under the manajj:enu'nt of tlie Minister has the supervi- sion of all matters relatinj; to the financial affairs and public accounts, revenue and expenditure ef Canada not ■'.'"'^"'■y assigned to any other dej)artment. Thi- Tr<\'i8ury Board consists of any five Ministers to be nominated by the Covernor-Oeneral. This board acts as a committee of tlie Kin«j:'s Privy Coum-il for Canada on all matters relatinj:: to finance, revenue and expenditui'e or public accounts referred to it by tlie Council. It has i>ower to require from any public department or from any person all necessary books, papers, or statements. The account hooks fop the Dominion accounts are also planned by this board. ^\\\. ■ \ 1 ill m i 70 Rif/lils of' I*rrN(i}is I I'AItT I 1 1 '. 7. CtiHtdiiii O. H. C. 8. Inlniiil li(piiiiiiiriil of ruKloniH, prrsidrd ()vH of niMtoiiiM iinil of (he ciisIoiiim Mcrvico iiiulci* Hit' diroctioii of tll<' ('«Hlll'oll('l' of ClISloillH. (S) I>< pni'liiK'nt of InliiiKi I{<>v«>iiim>, prcnidnl over in tile Siinio liiillllier :ih tlio Depiii'tiiioilt of riiMloiiLS, and under llie direction of the ('out roller of Inlniid ltevenii(>. TliiM ) Tile eollection <»f Htiinip duties and the pn'piu'ji- tion and issn(> of stamps and stamped paper, except postafjfe stamps. (c) Inl(>rnal taxes. ((/) Standaird weijilits and measures. (<) The administration of the laws afTectiii}? tho culling; and nieasiireiiuMit of tiinlier, nuiHts^ Bpars, deals and slaves, and other artich's of a like natiin', and tlu' collection of slidajje and booinafje dues. (/) The collection of bri«l}i:e and ferry tolls and rents. ((/) The eollei'tion of tolls on the public canals and of matters incident thereto, and of the otticers and persons employed in that service. (0) Post Otlice Department, for the superintendence and inanafj;ement, under the direction of the Postmaster- General, of tlie i)ostal service of Canada. (Ill) Dei>artnient of Public Works, i)resided over by the Minister of PuA)lic Works. The Minister has the mana}j:ement, (-har^^' and direction of the following matters: Dams, hydraulic works, the construction and repair of harbours, piers and works for improving the navijration of any water-slides, dams, ])iers, booms and other works for facilitating the transmission of timber ; roads and bridges, public buildings, vessels, dredges, scows, tools, implements and machinery for the improve- ment of navigation; the telegraph lines, and all other .IIAIV I. § 21 Hfhitirc ( Pii.hlic). 71 |)r(>|M'i'l,v wliicli now belong to ('jiiiiKlii, hikI uIho th«' woi'kH ]iim1 propri'ticH iin|iiii'«'(l, coiiNtnicltMl, cxIcikIimI, (■iiliii'K<'>* improving oi' wliicli any puhliu inoiicv Ih votrii aii«l appropriated l»,\ I'arliaiiK'iit (except worivs for wldrli iiioiiev liaH Iteeii appi'<»prlated an a Hub- Hid.v oid,v), and every worii reipiired for any hiicIi pur- |)OHe; and also all Hneli portioiiH of the property lui(»vvn aH tile "Oi-dnance Property " an wan t ransniitled to tlie (lovernnient of tii(> iat<' Trovinee of <'anada, or to the (lovernnient of (Janada l>y tlie exeeptions following, that Ih to 8a y : — (a) Siuh pnblie worliH an have been or art* hereafter lawfnlly transferred to any provinee forming part of Canada; ih) Such pnblie workH as have been or are hereafter leased, sold or otherwise lawfnlly transferred to ninnicipalities, incorporated <-onipanieH or others, nnless the same are snbject to be and are resnnied by Her Majesty in virtue of the provisions of any A(!t, or of any lease, sale or transfer thereof, or relating thereto; (r) Such public works as are jdaced under th(? con- trol and management of any other Minister or department; ((/) Such i)ublic works as have been or are hereafter by proclamation abandoned or left to the c(m- trol of municipal or local authorities, 2. The Minister shall also have the management, charge and direction of the heating, mainten- ance and keeping in repair of the Government buildings at the seat of Government, and any alterations from time to time requisite therein, and the supplying of furniture and fittings, or repairs to the same. (11) Department of Railways and Canals, under the". Rail- management of the Minister of Railways and Canals. Canaia."'^ . I ;i hUj ;+•* ■ ■• t : « s -.'»:| m :':?ii ■ If! ,1; IMJ 72 Ri(j/ifs of Persons [l'.\RT I R. S. C. c. 37. "i.ii ■I 12. Militia ftud DefwJicf. R. S. C. c. 41. R. S. C. c. 42. This Minister liiis the inaiuigcment, cli.irgo and direction of nil Government railways and canals, and of all works and property appertaining or incident to them; he mnst direct the construction, maintenance and repair of all railways and canals constructed or maintained at the exp«'nse of Canada, and placed under his manage- mcut and control. (12) Department of Militia and Defence, under tlie direction cf the Minister of Militia and Defence. He is charged witli, and is responsible for the administration of militia atlairs, including all matters iuAolving expen- diture, and of the fortitications, gunboats, ordnance, ammunition, arms, armouries, ston's and other military accoutrements belonging to Canada. lie has the initia- tive in all military atlairs involving the expeniliture of money; he has also the control and management, and is charged with the maintenuncc and repair of all mili- tary belon'^ings, ftu'ts and fort. tier, tions in Canada. A royal military college has been established sit Kingston, under the superintendence of a military officer called the commandant. Professors and other instruc- tors are appointed, and the college is governed and its atlairs administered according to the regulations made by the Governor in council. All reports n^l tting to the college are transmitted to the Department of Militia and Defence. 13. Trad, and Com inerce. (Iv^^ Department of Trade and Commerce. Estab- lished to deal with all such matters of trade and com- 50,51 Viot. merce as are not assigned to any other department. c. 10. In all the f;bove departments deputies are appointed who take ch.;ige, as in the i)rovin('ial dei)artments, of the general routine work. The policy of the department is initiated by the Minister in charge; all his colleagues in the Ministry are responsible equally with himself for the adminisi ration of the department. Tlie duty of members of both Houses of I'arl lament is lo critivizc' and regulate the administration of all matters confided to the various Ministers. This branch of the public ser- vice may be prol)ably more correctly described as ad- ministrative than as executive; in theory the Executive, CHAP. 1, § 2] Midive (PiiUic). 73 as has bci^n stated, is the Govornor-Gonoial for the I)(»ininioii and the Lieutenaut-Governor for the province. In practice the members of tlie Kinjj:'s (.'al)in<'( (Ntimcil for Canada and of the Executive Council for tlie i)ro- vince are rei.lly tlie Executive; what they decide upon must be carried out. We Lave now discussed tlie two fir.st particulars relating to the Kinji's Majesty. It will now be our duty to consider the next attribute of his sovereis^ii power, namely, prerogative. This subject will be explained as it exists, lirst, in England, then in the Dominion and Province. One of the principal bulwarks of civil liberty, or, in other words, of the Rritisli Constitution, is the limitation of the King's prerogative by bouuvls so certain and notorious, that it is impossible ho should ever exceed them, without tlu' consent of the people, on the one hand; or without, on the other, a violation of that original contract which in all states impliedly, and in England expressly, siibsists between the prince and the subject. It will now be our liusiness to consider this prei'ogative minutely, to demonstrate itti necessity in general, and to mark out in the most iniportiuit instances its particular extent jiud restrictions; from which consideration this conclu- sion will evidently follow, that the })owers which art' vested in the Crown by the laws of Enghind are neces s;iry for the supjxui of society, and do not intrench any farther on oui' natui'al liberlies than is ex;,edient for the maintenance of our civil. A great (h'al that is -'.lid down with regard to i)rerogative may, at lii'st sight, appear inapplicable to Canada. It may be thought that, as the monarch resides only in England. an«l eau have hut a re[)r( sentative in a country separated so far from where he rules as Cinada, his |)ersoiial or jiolitical alti'i- Inites can have little inlluem-e in this country, or be any )i!oi-e than curious s]>eculation. On refleciion, tiiis im- l>ressi(.n v.ill be found eri'oneous. In the lirsl place, every jterson should understand the eonstilution of Ihe ciiiintry in which he lives. If he accepts that constitu- tion he must be prepared to give an intelligent adhesion riieKi"-''8 I 'rcroga- tivf in Kiiglaiid. l! H '"^ 74 HI (/his of l\'rsoii.s [I'Aur I ill to its in'inciplrs. How mix In* do ho iinh'ss lie lias lind laid before hiiu tlioso priiicipk's and exaiiiiih ;! llicm? If must bo acknow icdjjod that ovon in Enjjjland the powers and i»rerojj[atives attribnttMl to tlie Kinj; liave be <'n in lai'fje pai't transfen'ed to tiie people as represerJed in Parliament. Kven with this admission, what is said of the Kin}^ must be .■^aid of the slate. In the most repub- lican form of j^overnnient the people, under whatever denomination the.v are (•<)lleetivel,v styled, claim for themsolvcs the same prerojj^atives which are by our con- stitution allowed to the monarch. In En}j;Iand a jjreat deal of the power theoretically attributed to the mon- arch still remains in his hamls. (Jreat chanfifes have lak(- place, but the Limited .Monarchy of Knf^land still e.xist^, J, . ', so far as human knowled;j;e can foresee, will continue to exist. We in (Canada have a<'c<'pted that form of jjovernment, as a<'cei>ted by Kuj^land. Unless w«' undtM'stand how the preroj^alives of the (Jrown have arisen in Kufjland, and how they are limit«'d there, we cannot understand the theoi'y and ju'actice of our (ros ernment in Canada, it is bovSt, therefore, to exi)lain the theoretical limits of prero}j;ative as they are understood in England, and tlien examine how far these limits extend in ('anada. When we have concluded the exam ination of this part of our subject, it will be a satisfac- tion to know that our faith in what many of us have accepted only as tradition will stand the test of tho closest scrutinv. (Mumues have been inevilablv Kxplaiia- titiii of tenn "Pre- ogative." brought about by time, by the si>read of education, and by lh,» increased interchange of ideas annnig ilie nations of the world. In spite of these changes, the Rnglish roustitutiiui remains in its essential features the same, and no ('anadian ca;i have any sentiiiient but that of pride ana gratitication that the good fortune of his coun- try has started her in hv'r national career under auspices so favoui'able. liy the Word prerogative we usually understand that special pre-eminence which the King has over and above all other persons, and out of the ordin ary course of the common law, in right of his legal dignity. It signifies, in its etymology (from prae and • ciiAi'. F, vj 2] licUdlvc (Ptd)llc). 75 rofjo), HoiiM'lliiii}; that is r('(|nir«'(l or dcniiiiuh'd Ix'for*', <»r ill prcfoi'ciu'c to, all otli|»li<>(] to tiioHc rights and capacities \viii enjoys in coniintm willi any of his subjects; lot* if once any one pnTo^ative of the ('rown conid be held in common with the subject, It wo iild se to be a prero^^ative any lonj^ei' I K i()j,'alives are eitluM" direct oi' incidental. The DinctPre- direct are snch positive substantial parts of the royal chaiacter and .iiilli(»rity as are footed in and spring fiom the Kiiiji . political peison, ((uisidered merely by itself, without r«'fer<'nce to any othei- extrinsic circum- stances ; as the rif^ht of sending; and)assiidoi's, of creating: pc> 1.% ;!ad of making war or peace, liut svich i'()({iitiveH. l)fefofi;ative, .ir<' incidental bear always a relulion to Ual tlV«H. somethinfjj else, distins1;il)Hsli. Tlu=i nionnous wcifjlit of pre- rojiativc, if left to itself (as in arbitrary f^ovei'umcnts it is), 8i)roa(ls havoc and dcstrnction aniont; all the inforior movements: bnt. when balance*! and regulated (as with ns) by its proper counterpoise, limely and judiciously applied, its oi)erations are then eipiable and certain, it invijijorates the whole machine, and enables every part to answer the end of its construction. We shall commence by considerinj; the two first of these divisions, which relate to the Kinji's i>olitical character and authority: or, in other words, his dignity and regal power; to which last the name of prerogative is fi'equently narrowed and confined. The other divi- sion, which forms the royal revenue, will receive subse- quent examination. Fii'st, then, of the royal dignit^. The law ascribes 1o the King, in his high ])oli.ical character, r.ot only large jiowers and emoluments, which form Ills i)veroga- live and revenue, but likewise certain attributes of a great and transc(>ndant natui'e; by which the ])eo])le are led to consider him in the light of a superioi* being, and to j)ay him that awful respect which may enable him with gr(>ater ease to carry on the business of govern- ment. Tliis is what I understand by the royal dignity, th<» several branches of which we will now proceed to examine. 1. And, first, the law ascribes to the King the attri- bute of sovereignty or ])re-eminence. His realm is declared to be an empire, and his Crown imperial, by many Acts of Parliament, parricularly the statutes 24 Vlii.c.i'_'ji(.„] VIII. (.. ii>. jiiHl ii5 Hen. VIII. c. 28; which at the „^ ,, same lime declare the King to be the supreme head of 2.5 H(>ii. ^ ' Vlll.c. lis the realm in matters both civil and ecclesiastical, and of conse(pience infei'itu' to no man upon earth, dependent on no man. accountable to no man. The meaning of the Legislalure. when it uses these terms of empire and im- jHTial and :ii>i>lies them to Ihe realm and Crown of Eng- land, is only lo assert that our King is equally sovereign and independeiit within these his dominions, as any emperor is in his empire, and owes no kind of subjection to any other potentate upon earth. Hence it is that no eignty. 24 Hen. lies Huperiority of power: autliority to try would be vain and idle without an autliority to redress ; and the sentence of a Court would be contemptible unless that Court had power to command the execution of it: but who shall com- mand the Kin}>- ? Hence it is likewise, (hat by law the person of the Jving is sacred, even thonj^ii the measures pursu(»d in his reign be completely tyrannical and arbi- trary; for no jurisdiction upon earth has i)ower to try him in a criminal way; much less to condemn him to punishment. If any foreign jurisdiction had this power, as was formerly claimed by the Pope, the independence of the kingdom would be no more; and, if such a power were vested in any donusiic tribunal, thei-e would soon be an end of the constitution, by destroying the free agency of one of the constituent parts of the sovereign legislative power. Are then, it may be asked, the subjects of Enghind Kemedies totally destitute of remedy in case the Crown should forsubject* invade their rights, either bv private injuries, or by ;>p''"«t ^ ^ " ' .17,/ Crown. public oppressions ? To this we may answer, that the law has provided a remedy in both cases. And, first, as to private injuries : If any person has. Private in point of property, a just demand upon the King, he '"^""'*'*'' must petition him in his Superior Courts, by what is called a petition of right, where his Judges will admin- ister right as a matter of grace, t hough not upon com- pulsion. And, as to personal wrongs : it is well obf-erved by Mr, Locke " The harm which the sovei'- eign can do in his own jK'rson not being likely to hap- pen often, nor to extend itself far; nor being able by his single strength to subvert the laws, nor oppress the body of tlie people (should any prince have so much weakiu'ss and ill-nature as to endeavour to do it),^ — the inconvenience therefore of some particulai" mischiefs, that may happen sometimes when a heady ])rince comes to tile throne are well recompensed by the peace of the public and security of the government, in tlie per- son of the chief magistrate being thus set out of the roach of danger." .1 I: p 78 Rujliis of l*ersi)iiN [I'ART I i .j .1 1 • ^l^rision '^^'^^^ Ji« to ('jjsoM of onliuiiry public oiJiM-csHion, wliero the vitalH of the conslitntion arc not iU tacked, the law has also assifj^iicd a remedy. P;)r, as a kinj; can- not uiiHii.se his ])ower witliotit the advice of evil counsel- lors and the assistance of wicked ministers, these men ma.v be examined and jmnished. The constitution has therefore provided, by means of indictments and parlia- nl^nt*'''' '"^"^'"'y iinpeacliments. that no man shall dare to assist the Crown in contradiction to tlie laws of the land. But it is at the same time a maxim in those laws, that the Kinj; himself can do no wronp,-; since it would be a fjreat weakness and absurdity in any system of positive law to define any possible wroii}? without any possible redress. Absolute II- B»'sides the attribute of .-(overei^nty, the law also perfection, ascribes to the King, in his political capacity, absolute perfection. The King can do no wrong. Which ancient and fundamental maxim is not to be understood as if everything transacted by the g(»vernment was of course just and lawful, but means only two things. First, that whatever is <'xce|)tionable in the conduct of public affairs is not to be imputed to the King, nor is he answer- able for it jM-rsonally to his people: for this doctiine would totally destroy that constitutional independence of the (^ri>vvn whicli is necessary for the balance of power in our free and active, and ui«'refore, compounded constitution. And. secondly, it means that the preroga- tive of the thrown extends not to do finy injury; it is created for the bemtit of the ]>eople, and therefore can not be exerted to their prejudio'. The King. mort*<»ver. is not only inca])ablt> of doing wrong, but exnii of tiiinking wrong; he can never mean ■ to do an iiispropcr thing: in liini is no folly or w<'aUues8. And thert^tirc if tin- Trown shmild be induced lo grant any franchise or privih'ge to a subject contrary to reason, or in any wise prejudical to tlie comnntM wealth, or to a private person, the law will not supjmse the King to have meant either an unwise or an injurious acti^ta but declares that tin- King was deceived in 1i ^ fjrant; and thereU|)on >on the foundation of fraud and deception, eitbcr by or upon i n^- >;>li ss. R'l ml m t<» tlK luj; Ol' lu; H)ll K>n <'nAP. I, § 2] Relative (Pahlir). (1ios<> npcntH whom tlu' Crown Iuih thousht proper to ('ini>l(>v. For the law will not east an imputation on that magistrate whom it cntrustH with the cxocutivo ixnvcr, as if he was capabh' of intentionally disrej^ard- iuii his trust; but attributes to mere impositivereij,'n, the coni-litu- tion has allowed a latitude of sui)i>osinf? the contrary in respect to both Houses of l»arliament; each of which, in its (urn. has exerted the rif«;ht of remonstrating' and complaining- to the Kinjj even of those acts of royalty which are most properly and personally his own ; sucli as messa<;«'s sijrned by himself, and speeches delivered from the throne. And yet, such is the reverence which is paid to the royal pei'son, that though the two houses have an undoubted rijj^ht to consider these acts of state in any lij^lit whatever, and accordinf!;ly treat them in their addresses as personally proceedinj; from the i>rince, yet anu)ng themselves (to preserve the more perfect decency and foi' the jjreater freedom of debate) they usually suj)pose them to flow from the advice of the adtninist ration. Hut the privilejjje of canvassinj;- thus freely the pei'sonal ai^ts of the sovereifjn either directly, or even throuj,di the medium of his rei)uted advisers, belonjjs to no individual, but is confined to those aujjust assemblies: and there, too, the objections must be pro- posed with the utnutst I'espect and deference. Tn furthei' pursuance of tliis j)rinci]ile. the law also «l(;termines lluit hi tlic Kiu}? can be no iiejjflim'nce, or laches, and therefoi-c no delay \\ill bar his ri^ht. >.'ul- liini tempus occurrit rep has been the standard maxim upon all occasions; for the law intends that vhe Kinjj is always busied for the [tublic f;ooi> the iiHiiliulcr ipso f'iiclo. Xcillicr ciin the Kiiij;', in judjiiiiciij of law, j>s kiu^', <*v('r be ji minor oi* uiulcr jij^t; and Ih^'i-i'roi'c his I'o.val {grants and assents (o Ads ol' I'arlianicnl are jj;o(»d, tlioijji'ii he has not in his natural capacity attained the le{i,al ajic of twenty-one. Perijetuity III. A third attribute of tlie Kind's majesty is his pei'petuity. Tlie hnv ascribes to liini, in his political capacity, an absolute immortality. The King never dies. Ifenry, I'^dward or (Seorjye may die; but the Kin}» sur- vives them all. For imme'diately upon the decease of the relf;ninf>" prince in his natural capacity, his kinsshii) or imj)erial dij::nity, by act of law, without any inter- reffuum or interval, is vested at once in his heir; who is, CO iuslanti, king to all intents and purposes. And so tender is the law of supposing even a possibility of his death, that his natural dissolution is generally called his demise; demissio regis, vel coronas: an expression which signifies merely a transfer of property; for, when we say the demise of the Crown, we mean only that, in conse(iuence of the disunion of the King's natural body from his body politic, the kingdom is transferred or demised to his succ<»ssor ; and so the royal dignity remains perpetual. We are next to consider those branches of the royal prerogative which invest this our sovereign lord, thus all-perfect and immortal in his kingly capacity, with a number of authorities and powers; in the exertion whereof consists the executive part of government. This is wisely i>laced in a single har-i by the British Constitution, for the sake of unanimity, strength and despatch. Were it' placed in many hands, it would l)e subject to many wills: many wills, if disunited and draw ing different ways, create weakness in a govenrment : and to unite those several wills, and reduce them to one, is a work of iiore time and delay than the exigencies of state will afford. The King of England is therefore not only the chief, but properly the sole, magistrate of the nation ; all others acting by commission from and in due subordination to him. Concentra tion of authority. ii f CHAP. I, § 2] Ih'hdive (Piihlic). 81 With rcpai'd to forcifj;!! concerns, the Kinc \n tlicA"*"^""' (IclcfTiite or r('i»i'('ScnlMtiV(> of his people. It is iin]>ossi- ,,.,„s. Mo that tlie individiiiils of a state, in their collective? capacity, can transact tlie alVaii's of that state with another connnnnitj eqnall.v as nnnierous as themselves. Tnaniinity must be wanting; to their measures, and strength to the execution of their counsels. In the King therefore centre all the rays of his people : otherwise foreign ])owers would scruple to enter into any engagement, that must aflei-wards be revised and ratified by a ])opular assembly. What is done by the royal authority in regard to foreign jiowers is the act of tlie whole nation: what is done without the King's con- ( iirrence is the act only of ])rivate men. And so far is this point carried by our law, that it has been held that should all subjects of England make war with a king in league with the King of Kngland, without the royal^ assent, such war is no breach of the league, and still it remains a very great offence against the laws of nations, and punishable by our laws, according to the circum- stances of the case. I. The King, therefore, considered as the represent- Amijaasa- dors ative of his people, has the sole i»ower of sending ambas- sadors to foreign states, and receiving ambassadors at home. II. It is also the King's prerogative to make treaties, Treaties leagues and alliances with foreign states and princes. For it is by the law of nations essential to the goodness of a league that it be made by the sovereign power, and then it is binding upon the whole community, and in Eng- land the sovereign " quoad hoc " is vested in the person of the" King. Whatever contracts, therefore, he engages in, no other power in the kingdom can legally delay, resist, or annul. And yet, lest this plentitude of author- ity should be abused to the detriment of the public, the constitution (as was hinted before) has here interposed a check, by the means of parliamentary imjteachment, for the punishment of such ministers as from criminal motives advise or conclude any treaty which shall after- wards be judged to derogate from the honour and inter- est of the nation. K.lt. — () ^. ■ ■ J ■ : 1 I i Q .,MM I 'I >i 'f £ 82 War and Puace. liUjIds of Persons [I'Aiir I Letters of Marque and R eprisal. III. Ui)()n tlic Hanic piinciph' llic Kiii^ lias also Ilu» solo prcroj^'ativc of inakinj; war and iicace. For il is lield by all the wiitei'H on tho law of nature and nallous, that the rij^ht of making; war, which bv nature Hubnisted iu every individual, is j^iven up by all private jxrHons that enter into society, and is vested in the sovercifi^n power; and this rij^ht is j;iven up, not only by individ- uals, but even by the entire body of people, that are under the dominion of a sovereign. It would indeed be extremely improper that any number of subjects should have the power of binding the supreme magistrute and putting him, against liis will, in a state of war. What- ever hostilities, therefore, may be committed by private citizens, the state ought not to be affected thereby ; unless that should justify their proceedings, and thereby become partner in the guilt. Such unauthorized volun- teers in violence are not ranked among open enemies, but are treated like pirates and robbers. So that in order to make a war completely etfectual, it is necessary in England that it be publicly declared and duly pro- claimed by the King's authority; and then all parts of both the contending nations, from the highest to the lowest, are bound by it. And wherever the right resides of beginning a national war, there also must reside the right of ending it, or the power of making peace. And the same check of parliamentary impeachment, for im- proper or inglorious conduct in beginning, conducting, or concluding a national war, is in general sufficient to restrain the ministers of the Crown from a wanton and injurious exertion of this great prerogative. IV. But, as the delay of making war may some- times be detrimental to individuals who have suffered by depredations from foreign potentates, our laws have in some respects armed the subject with powers to impel the prerogative, by directing the ministers of the Crown to issue letters of marque and reprisal upon due demand: the prerogative of granting which is nearly related to, and plainly derived from that other of making war; this being indeed only an incomplete state of hostilities, and generally ending in a formal denunciation of war. These letters are grantable by the law of nations, whenever the subjects of one state are oppressed and injured by >1i CHAl' 1, § 2] Jicliitive (Piihiic). 83 ive [pel those of jiiiotlu r, nnd jnslico ih (Icnicd by that state to wliicli tlio oppi'cMsor Ix'lon^s. In this cast' Ictlors of ni!ii(|ii(' and rcjd'isal (win'ds used as synonymous; and sijrnifyinj;, the laltor a lakinji: in rclnrn. tlio foniwr the jtassln}; the frontiers in order to such lakinfj) may be obtained, in order to seize tlie liodies oi- jjoods of the subjects of tlie olTendinf; style, until satislaction be made, wherever they haijpen to be found. And indeed this custom of reprisals seems dictated by nature her- self; for which reason Ave lind in the most ancient times very notable instances of it. Hut here the necessity is obvious of calling in the sovereifjn power to determine when reprisals may be nmde, else every private sull'erer 4Hen.V. would be a judjye in his own cause. In pursuance of°"^" which i)rinciple, it is with us declared, by the statute \ lien. V. c. 7, that, if any subjects of the realm are 0|)pressed in time of truce by any foi-eijjnei-s, the Kinj; will {ifrant marque in due form to all that feel them- selves jjrieved. The modern practice is to em])ower the Lord ll\\i]\ Admiral or the rommissioners of tlu' Admi- ralty to j^rant commissions to the owners of armed ships or privateers, and the i)rizes captured are divided .'u-cordinjf to a contract entered into between the owners and the captain and crew of the ship. But the owners, before the commission is granted, are obli{?ed to }^ive security to the Admiralty to make compensation for any violation of treaties between those powers with whom the nation is at peace, and they must also jjive security th.at the ship shall not be employed in smufijjilinp;.* V. Upon exactly the same reason stands the pre- Safe rofjative of grantiuj^t safe-conducts, without which, by '^""^ the law of nations, no member of one society has a rij^ht to intrude into another. Great tenderness is shown by our laws, not only to foreigners in distress, but with regard also to the admission of strangers who come spon- taneously. For so long as their nation continues at peace with ours, and they themselves behave peace.ibly,. they are under the King's protection; though liable to • Privateering is prohibited by convention with certain foreign pow- Treaty of" era, but not with all. The United States of America have not become Paris, 18;")^ party to the convention and it is with tlicm that reprisal by privateer in"; is most likely to take place. The passage in the text therefore must stand as law. <• s». *****^. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I .25 1^' lii£ 12.2 £ US 110 ^U4 <^ y / ^^. ^y^''^^ 7 PhotDgraphic Sciences Corporation 23 WIST MAIN STREET WIBSTBR.N.Y. MSSO (7I6)S73-4S03 m V iV \\ (6<^^ ^ 84 Rights of Persona [part I H Protection to foreijTj mercliHUtif Prerojgra- tives in domestic ftffftin. Power of rejeotinfc Acts of P»rli»inent be sent home whenever the King seee occasion. But no subject of a nation at war with us can, by the law of nations, come into the realm, nor can travel himself upon the high seas, or send his goods and merchandise from one place to another, without danger of being seized by our subjects, unless he has letters of safe-con- duct; which by divers ancient statutes must be granted under the King's great seal, and enrolled in Chancery, or else are of no effect: the King being supposed the best judge of such emergencies as may deserve excep- tion from the genera! law of arms. But passports under the King's sign manual, or licenses from his ambass.i- iors abroad, are now more usually obtained, and are allowed to be of equal validity. Indeed, the law of England, as a commercial coun- ^ ^' pays a very particular regard to foreign merchants iii iunumerable instances. One I cannot omit to men- tion: that by Magna Charta it is provided that all mer- chants (unless publicly prohibited beforehand) shall have safe-conduct to depart from, to come into, to tarry in, and to go through England, for the exercise of mer- chandise, without any unreasonable imposts, except in time of war; and, if a war breaks out between us and their country, they shall be attached (if in England) without harm of bodv or goods, till the King or his chief justiciary be informed how our merchants are treated in the land with which we are at war; and, if ours be secure in that land, they shall be secure in ours. These are the principal prerogatives of the King respecting this nation's intercourse with foreign nations; in all of which he is considered as the delegate or re- presentative of his people. But in domestic affairs he is considered in a great variety of characters, and from thence there arises an abundant number of prerogatives. I I. First, he is a constituent part of the supreme legislative power, and, as such, has the prerogative of rejecting such provisions in Parliament as he judges improper to be passed. I shall only further remark, that the King is not bound by any Act of Parliament, unless he be named therein by special and particular CHAP. I, § 2] Relative (Public). 85 words. The most general words that can be devised (" any person or persons, bodies politic, or corporate, etc.") affect not liim in the least, if they may tend to restrain or diminish any of his rights or interests. For it would be of most mischievous consequence to the public if the strength of the executive power were liable to be curtail^'d without its own express consent by construction*, and implications of the subject. Yet, where an Act of l*arliament is expressly made for the preservation of public rights and the suppression of pub- lic wrongs, and does not in*^erfere with the established rights of the Crown, it is sp u to be binding as well upon the King as upon the subject: and, likewise, the King maj' take the benefit of any particular Act, though he bo not specially named. II. The King is considered, in the next place, as the General- generalissimo, or the first in military command, within "**'"'"• the kingdom. The great end of society is to protect the weakness of individuals by the united strength of the community: and the principal use of government is to direct that united strength in the best and most effectual manner to answer the end proposed. Monarchical gov- ernment is allowed to be the fittest of any for this pur- pose: it follows therefore, from the very end of its in- stitution, that in a monarchy the military power must be trusted in the hands of the prince. In this capacity, therefore, of general of the king- dom, the King lias the sole power of raising and regulat- ing fleets and armies. The prerogative of enlisting and of governing them was solemnly declared by the statute 13 Car. II. c. 0, to be in the King alone: for that the sole l^^"' "' supreme government and command of the militia within all His Majesty's realms and dominions, and of all forces by sea and land, and of all forts and places of strength, ever was and is the undoubted right of His Majesty, and his royal predecessors. Kings and Queens of England, and that both or either House of Parliament cannot, nor ought to, pretend to the same. This statute, it is obvious to observe, extends not only to fleets and armies, but also to forts, and other places of strength, within the realm; the sole preroga- . '}' 'Si '!NV- US • I li t ■ I ■ I 'mi 'iif f t ;i't ;U •M H ' V il i 4?# 86 Riffhtfi of Pcrnonn [I'AUT 1 PortB and haveitH. tiv(* as well of erecting as manning and governing of which beh)ng8 to the King in his capacity of general of the kingdom. It is partly upon tlie same, and partly upon a fiscal foundation to secure this marine revenue, that the King lias the prerogative of appointing ports and havens, or such jilaces only, for persons and merchandise to i)a88 into and out of the realm, as he in his wisdom sees proper. \\y the feudal law all navigable rivers and havens were romputed among the regaliti, and were sub- ject to the sovereign of the state. And in England it has always been holden that the King is lord of the whole shore, and particularly is the guardian of tlu" ports and havtns, which are the inlets and gates of the realm: and tlu'refore, so early as the reign of King John, we find ships seized by the King's officers for putting in at a place that was not a legal port. Beacons, 1'he erection of beaccms, lighthouses, and seamarks, bjuHesand'^ also a branch of the royal prerogative, whereof the sea-marks, first was anciently used in order to alarm the country, in case of the approach of an enemy; and all of them are siguiilly useful in guiding and preserving vessels at sea by night as well as by day. For this purpose the King has the exclusive power, by commission under his great seal, to cause them to be erected in fit and con- venient places, as well upon the lands of the subject as upon the demesnes of the Crown: which power is usually vested by letters patent in the olllce of the Lord High Admiral. Exporting '^^^ ^'''*' branch of the prerogative nmy also be re- arms and ferred tlu' power vested in His Majestv, by statute, of ammuni- ...... . . , tion. prohibiting the exportation of arms and ammunition out of England under severe penalties. Continin(f subji'ctH within titfl malm. The King has likewise the right, whenever he sees proper, of confining his subjects to stay within the realm, or of recalling them when beyond the seas. By the com- mon law. every man may go out of the realm for what- ever cause he pleaseth, without obtaining the King's leave: provided he is under no injunction of staying at home (which liberty was expressly declared in King John's great charter, though left out in that of Henry CHAP. I, § 2] Relative (PuUic). 87 III.); l>"t, luH'ausi' tlmt ovorv man owpht of ripht to de- fend the Kinj? and his realm, therefore the Kinj; at his phmwire may eommand him bv hiH writ tliat lu' j;o not beyond the seas, or out of tl»e realm, without license ; and if he do the contrary, he shall be punished for dis- obeying the King's command. At pH'sent everybody has, or at least assumes, the liberty of going abroad when he pleases. Yet undoubt- <'dly if the King, by writ (^f " ne «'xeat regno." under his great seal or privy seal, thinks proper to prohibit him from so doing; or if the King sends a writ to any man, when abroad, connnanding his return; and in either case the subject disobeys; it is a high contempt of the King's prerogative, for which the offender's lands sluill be seized till he return; and then he is liable to tine and imprisonment. The writ of " ne exeat regno," now <*alled an order of arr(«st, is also granted by Courts for the furtherance of justice in civil suits where, on a case suflHcientlj' clear, a party under some liability meditates Uight; and resort may be had to this mode of restrain- ing a departure from the realm in the case of abscond- ing deb^jrs. III. Another capacity in which the King is cles of society, is lodg«'d in tlu» society at large: but as it would be im- practicable to render complete justice to every inr tliou);h the constitution of tlu* Ivin^doni lias intniHtcd him with tlu» whole oxcfutivc powor of tho hiWH, it is impo88ibU> as well as impi'o])er that he should perHoiuiUy carry into execution this great and extensive trust: it is conseciuently necessary that Courts should be erect«'d, to assist him in executinj; lliis power; and e<|ually necessjiry that, if erected, they should be erected by his authority. And lu'nce it is that all jurisdictions of Courts are either mediately or immediately derived from the Cr<»wn, their proceedin};« nin generally in the Kinfj's name, they pass under his seal, and are executed by his officers. It is probable, and almost certain, that in very early times, before our cimstitution arrived at its full perfi'c- tion, our Kinp:s in person often heard and determined causes between parly and pj'' ty. lint at present, by the lonp and uniform usajfe of iiany ages, our Kings have delegated their whole judicial power to the Judges of their several Courts; which are the grand depositories of the fun«tamental laws of tin' kingdom, and have gained a known and st.ii«d jurisdiction regulated by certain and established rules, which the Crown itself cannot now alter but by Act of rairlianuMit. And, in order to maintain both the dignity and independence of the Judges in th<* superior Courts, it is enacted by the statute 13 w. III. IJt W. III. c. 2, that their commissions shall be made ^•^' (not, as formerly, ''durante bene placito,'' but) "quamdiu bene se gesserint," and their salaries ascertained and established; but that it may be lawful to remove them on the address of lM)th Houses of Parliament. And now„ by the noble improvements of that law in the statute 1 Geo. III. of 1 (Jeo. III. c. 2:{, the Judges are continued in their o 23 offices during their good iH'haviour, notwithstanding any demise of the Crown. In criminal proct'edings, or prosecutions for oiTences, it would still be a higher absurdity if the King person- ally sat in judgment; because in regard to these he ap- pears in another cajiacity, that of prosecutor. All offences are either against the King's peace, or his Crown and dignitj': and are so laid in every indictment. For though in their consequences they generally seeuii Criminal proceed - ings. CHAP. I, § 2] Ht'ldtive (Public). 89 (extvpt in the ons*' of troiiHoii mid n very f»»\v otijops) t<> b(> ratluM' olT(.>iu'<>H iifj^jiitiHt the kingdom tluiii th(> Kin^ ; yet, 08 the public, wliieli iH tin invisible body, hiiH dele- gated nil itH pow»»rH and ri^litH, with regard to the exe- cution of the laws, to one visible nia;;isti'ate, all alTronts to that power, and breaeln*8 of thosi? ri^^hts, are inunedi- ntely offences against him, to whom they jire so «lele- gated by the public. He is, then'fore, the proper per- son to prosecute for all public otTences and breaches of the peace, being the person injured in the eye of tlu* law. And hence also aris<>8 another branch of the pn>rogative, ''""^""""(r that of pardoning olTencea: for it is reasonal>l<> that ho only who is injured should have the power <»f forgiving. Of prosecMitions and pardons I need not treat more at large here; and only mention them in this cur8(»ry manner to show the constitutional grounds of this power of the Crown, and how regularly connected all tlu' links are in this vast chain of prerogative. In this distinct and separate existent e of the judicial ludepen* power in a peculiar body of nien, nominated indeed, but j'^.jig*^* not reu'ovable at pleasure, by the ('rown, consists one main pr^s«'rvativ(? of the public liberty; whici> cannot subsist long in any state, unless the administiatiim of common justice Im' in some degree separat«'«l botli from the legislative and also from. the execjitive power. Were it joined with the legislative, the life, liberty, and ]»ro- perty of the subject would be in the hands of arbitrary Judges, whose decisions would be then reg»ilat«*d only by their own opinions, and not by any fundamental princi- ples of law; which, though legislatois may depart froni, yet Judges are bound to observe. Were it joined with the executive, this union might soon be an oviM-baliinct* for the legislativ*'. For which reason, by the statute of 10 Car. I. c. 10, which abolished the Court of Star lot-ar. I. Chamber, effectual care is taken to remove all Judicial power out of the hands of the King's Privy Council ; who, as then was evident from recent instances, might soon be inclined to pronounce that for law which was most agreeable to the prince or his officers. Nothing, therefore, is more to be avoided, in a free constitution, I it? ' ! V DO Rhfhfs of Pd'ntniM [part M\ ubiquity. iHsuing proclauia- tiuna. timn uniting; tlio provJiiccH of a .Iudp> and a MiniHtoi* of Htate. A consoquonco of thin pnM'Offativc Ih the legal ubi- qnlt.v of ihc Kin":. IHh Majesty, in (he eye of the hiw. in ahvayn |)reHent in all hiH ConrtH, though he cannot per Honally diHirihnte jUHtice. lliw .Indgen aire the n»irr(»r by whieh the King's in)ag(> \n reHeeted. It i8 the regal offlee, and not the royal perHon, that is always present in Court, always ready to undertake prosecutions, or pro- nounce judgment, for the benefit and jirotection of (he subject. And from this ubiquity it follows that the King can never be nonsuit; for a nonsuit is the deser- titm of the suit or action by the non-ap[>earance of the plaintiiT in Court; although this rule might s(»metinies work unjustly, the Attorney-General may enter a " non vult prosequi," which has tlie effect of a nonsuit. In the forms of legal proceedings also the King is not said to appear by his atvorney, as other men do; for in con- templation of law he is always present in Court. From the same original, of the King's being the fountain of justice, we nmy also deduce the prerogative of issuing proclamations, which is vested in the King alone. These proclamations have then a binding force, when (as Sir Edward Coke observes) they are grounded upon and enforce the laws- of the realm. For, though the making of laws is entirely the work of a distinct part, the legislative branch of the sovereign power, yet the manner, time, and circumstances of putting those laws in execution must frequently be left to the discretion of tht» executive magistrate. And therefore his constitutions or edicts concerning these points, which we call procla- mations, are binding upon the subject, where they do not either contradict the old laws or tend to establish new on<»s; but only enforce the execution of such laws as are already in being, in such manner as the King shall judge necessary. Thus the established law is, that the King may prohibit any of his subjects from leaving the realm : a proclamation therefore forbidding this in general for three weeks, by laying an embargo upon all shipping in time of war, will be equally binding as an Act of Parliament, because founded upon a prior law. CHAP. I, § 2] Rddtire (Public). 91 IV. Tlu' Kinp is likowlw th«' fnniitain of honour, of offlt'f, nnd <»f privih'j;*': and this in a diffon'nt h(mih<* from that wherein lie \h Hivled tlie fountain of justice : for here he is really the |»arent of them. It is impoKsihle that frovernnH'nt can he maintained without a due sub- ordination of rank; that the ]>eo])le may know and dis- tinguish su«'h as are set over them, in order t<» yield them their due respei't and olM'di<*n<'e; and also that the officers themselves, heinj; encourajjed by emu'ation and the hojies of superiority, may the better discharjje their functions: and the law supposes that no one can be so jjood a judp' of their several merits and services as the King himself who employs tlu»m. It has therefore in- trusted him with the sole jxiwer of conferrinj; dignities and honours, in confidence that he will bestow them upon nom' but such as deserve them. And therefore all degrees of nobility, of knighthood and other titles, are received by immediate grant from the Crown; either expressed in writing, by writs, or letters patent, as in the creation of jjcers and baronets; or by corporeal in- vestiture, as in the creation of a simple knight. From the same principle also arises the prerogative of erecting and disposing of offices: for honours and offices are in their nature convertible and synonymous. All offices under the thrown carrv in the eve of the law an honour along with tlHMu; because they imply a superiority of parts and abilities, being su]>posed to be alwa.ys tilled with those that are most able to execut*' them. And, on the other hand, all honours in their original had duties or offices annexed to them; an earl, comes, was the conservator or governor of a county ; and a knight, miles, was bound to attend the King in his wars. For the same reason tln'refore that honours are in the disposal of the King, offices ought to be so likewise; and as the King may create new titles, so may he create new offices: but with this restriction, that he cannot create new offices with new fees annexed to them, nor annex new fees to old offices; for this would be a tax upon the subject, which cannot be imposed but by Act of I'arliament. Fountain of lionour. Erection iilul (liH- [XWIll of utiiccs. E) ,^ ■'? ' 9t Privilogea. Jiighta of PersoriH [part I Arbiter of Gominercc. Law merchant. Upon tlio nnine or n like reason, th(> Kin^ han also tlio i)r<»rojjativt' of conft'i'rinj; privilrjijoH upon private pcrHouH. Siu'h UH );;niiitiiiK plarc or pHM-cdciu-e to any of IiIh 8uhj(>i'tH aH Hhall hcoui ^ood to IiIh royal wisdom: and according to tlic n'^nlationH of tlic Htatutc pasHcd roHpectin^ it: or hucIi as convt'rtiuK aliens, or persons born out of tlie Kin}<;'s dominions, into denizens; where- by sonn' very eonsiderable jiriviletres of natural-born subjeets are conferred upon them. Sueli also is the pre- rogative of ereclinj? corporations; whereby a number of privatj' persons are united and knit tofjelher, and may enjoy many liberties, powers, and immunities in tln'ir politic capacitj which they were utterly incapable of in their natural. Of aliens, denizens, nahnalborn, and naturalized subjects, I shall speak more largely in a subsequent place, as also of corporations. I now only menti(m them incidentally, in order to remark the King's prerogative of making Ihem; which is grounded upon this foundation, that the King, ha.ing the sole ad- ministration of the government in his hands, is the best and the only judge in what capacities, with what privi- leges, and under what distimtions, his peoi)le are the best qualifled to serve and to act under him. V. AnotlH'r light in which the laws of England consider the King with regard to domestic ' Ind CHAP. I, ^ 21 Belative (Public.) 08 tlu' cauBJ's of inonhantH by tho p<'n('rnl rulcH wliirh ob- tain in all iMMimMMcial countricH; aiid that oftt'ii vvvu in matters rolalinjj; to donn'sti*' trad«s an foi- inHlancc with rt'pard to the dniwinj;, the aiMH-ptanco, and tlio tranHfor of inland billw of rxchanjjc. In England, tho Kinji's in'croRativ*'. ho far as it re- Donie«ti<) Intt'8 to mere doni«'Htie coniuiercc, will fall principally ''""'"""■*'■" under the following articles: First, the establishment of public marts, or places of Markets, buying and selling, such as markets and fairs, with the tolls thereunt(» belonging. Hecondly, the r<>gulation of weights and measures. Weights These, for the advantage of the public, ought to be uui- MeasureM. versally the same throughout the kingcbmi; being th»> general criterions which reduce all things to the same or an equivalent value. lUit, as weights and measures are things in their nature* arbitrary and uncertain, it is therefore exi)edient that they be reduced to some fixed rule or standard: which standard it is impossible to fix by any written law or oral proclamation: for no man can, by words only, give another an adequate idea of a foot-rule, or a pound-weight. It is therefore necessary to have recourse to some visible, palpable, material standard; by forming a comparison with which, all weights and measures may be reduced to one uniform size: and the prerogative of fixing this standard our ancient law vested in the Crown. Thirdly, as money is the medium of commerce, it is Money, the King's prerogative, as the arbiter of domestic com- merce, to give it authority or make it current. Money is an universal medium or common standard, by com- parison with which the value of all merchandise may be ascertained: or it is a sign, which represents the respec- tive values of all commodities. The coining of money is in all states the act of the sovereign power, for the reason just mentioned, that its value may be known on inspection. And with respect to coinage in general, there are three things to be con- sidered therein: the materials, the impression, and the i !i \ v\ ! UlifhtH i>f J'ernovH [I'AIlT I i| 1.1; l'nr«>Ka tivc in Cnniida. (Iciioiiiiiiatidii, and the wllhuwiit of iUrsr iisatttM'H in pnipci'lv uuuh' an aiiirlc of ili«> prci'o^ativr of lh«' Hovci'cifjn. Having thus ronnidrnMl tlir law of Kii);lan«l i<>;;ai'<1 InK Hh* Kinff'H |»n'ro);a(i\<', il in now nrrrsMarv (o <'x- aniinc iiow far dial la'cropilivc rxiHtH in C'ana seen thai undn- llic ItriliHli North Aniciica Art (h<> I'arlianH'ut of (*ana(hi ronsiHts of tlic Kin^. the Km- ate and Ww IIouhc of Coninions. \\y tUr hixuw Act th«' KxcM'Utivc <)Ov«>rnnicnt and anthoritv of and ovroviHionH of tin' Art nf> rrintr to II<»r MajoHty ex tend to (h<' iicii-H and HUcrcHHdi'H of llrr MajcHt.v, Kin^H and QuccnH of tlic Tnitrd Kingdom of (Iroat Britain and Ireland. The attributcH (»f HovtMvi^nt.v, iM'i'f«*ct iun and lU'i'iM'tuity ai'c appropi'iiitt'ly aHHi^ni'd to the Kini; in ('iinada an well aH in England. The powei'H nien- alfair"'^" ^i""«''l »** beloiijjin^ to hiui in forei|;;n atTairs would be exerciMed bv him in Canada aH in Eng- land on the advice of his reHpouHible MinisterH should he be personally present in Canada. As the Kin):; remains in England, forei);n nef^otiations afTeetiuK all parts of the F^mpire are directed in England only. In late years where ({uestions alTecting Canada are brought under discussion it has become customary to invite the Canadian Ministry to send a delegate to specially guanl Canadian interests. The theoretical power remains of disposing of these interests without consulting Cana- dian opinion. Good sense has shown that in local matters local knowledge must be consulted. On the other hand, it is reasonably expected that Imperial in- terests must not be sacrificed to local necessities. On these lines all treaties with foreign powers have latterly been negotiated. So long as Canada remains a part of the British Empire she must expect that her liability to peace or war will depend on the decision of statesmen in England. If the King of England, on the advice of his Ministers, declares war or proclaims peace, Cana- dians, being British subjects, take the same consequences as other British subjects. The King is the representa- Tlu fj'oii nor- the less it ^^■i f'issei rcH'ei culled )x to ca llie Un with tl "iiminr lay the iinperi, )u (11. \ I'. I J 2 1 Jif'hitiri' (I'lthlir). M live of CjiiiiKlii in iiilrniiitioiial (|iH'H(ioiiH iiH Im* \h of KiikIjiimI.* Ah to (loiiii'Niif iiiiittt'iM. iIm' Kin^: liiis (lrl(>;;)itril his puHition to (Ih> riiui' ncr)il for fix* Doiiiinioii. ||<* 111 liiiii, liy vii'tiio of tjiiit (li'i«>^nl<'«l niillioriiv in tcriiiH of tlic ItritiHli Noi'tli AiiK'rini Ad, tippoiiitH lli<> Liciiliiiiinl- ruivt'rnor. TIu' (irni <1otiu>HH(> powrr nimtioiK'd, Unit of rrjert- in^ bills, is spociiillv provided for ns follows : WIk'It II hill passed hy the lloiisi' of I*iii'liiini<>nt is pr<'S(>nt<>4l to till' «l provisions of tlio Itritisli North AiiK'rir;) A*t and to ITis .Majesty's instructions, tlier that h - assents to th<' hill in the Kind's name, or that h- \vithliolds the Kin^*^ assent, or that he reserves ihe Mil lor the si^niiieation of the Kin|;'s pleasure. When he nsMetits to a hill in the Kind's name he sends a eopy (»f ihe Art to one of His .Majesty's principal Secretaries < f State; if tlie Kinjj in council within two years jitter the receipt of the Act hy the Secretary of State thinks tit to disallow it, I lie dis allowiux'e, with a <'«'rtiflcate of the Secretary of State of the day on which the Act was received by him, is sijjni- tied by the Oovernor in council by speech or nu'ssajje to each of the Houses of ParlianuMit or by proclamation. The elTect of the disallowance is that the Act is annulled from and after the day of the signification by the Gover- nor-General of the disallowan«'e. A bill n'served for the Hi);nitlcation of the King's pleasure has no fore*', un- less and until, within two years from the day on which it was presented to the Governor-General for the King's assent, the Governor-General sipnifles that it has received the asaent of the Kinf? in council ; this signitica- lll ilo- iiii-hIii' iiiiUti'm. l(i<. I iU Hi. ' In order to watch the intereBts of Canada in England, an oflicrr r> u p called the Hi»{li CommiHsiuncr for CaFiada is appointed. IUh main duty ^, u,' in to carry out the inHtructions he receiven from the Governor in Connoii rt!8pec(in(; the commcruial, financial and (general interestn of I'anadu in tiie United Kint>dom and elsewhere. He acts an agent for the Dominion with the Ini{)erial Government, and is eapeoially directed to auporviHe iniroiKration. Bein({ resident in London, he is able with more f(n-co to lay the views of the Canadian Government and people before the Imperial authorities should any cause of difference arise. i.i ^i« L f 1 1 . « '1. ^ s i t i i 96 mollis of l\'i'soim |l'\l«T I «>f iiill-) III |>nt\ iiii'i!il tiintti't'M. 11. N A, Aot, B ;•(• Milit«ry commanii (ion (li<> riiot' ( Snicriil iiiiiv iniiU<> Itv Hpcrrli or iiicn sti^c to «<)i«'li ol' tlio lloMHi'S or I'nt'liiinionl, or li,v |>rorlii nuHion. An rnlrv of llir Ni;j;iiillnilion is niiitir in tlio jonniiil of otii'li lioiiMr tint'r«l (o llio projHT onim* lo l»o Ivrpl in (hr |»i'o|>('r rrcofdH of rnniolii. Willi vi>}rj||<,| to pi'ovinciiil lr<;iMlu(ion. Ili<> provi- Nions of llic llflliMJi Norlli A!n«'firii Ad. jnsi rofrrml lo, jip|)lv lo nil I'rovinriiil l.<'f;;iHliilur<'s with llio roiltntitn tion of tli<> l.icntrniint <5ov«'rnor for tlir ( iovornoi- < Jni- ri'jil. of tlio (5ov«'i"nor (Jrnrnil for tin* C^ncon iinil n Socro (nrv of Slnto. of one yonr foi- iwo vrjii'M. nn of Iho (|M<r onr ronstilntion. It hns boon onh'iiillv Hot'hirctI thnt tho power ran onlv bo oxorriNod nooordinjr t«» tho iulvifo of tlu* Privv <'ounril for Dinnin- ion AotN. iind of tho l']xorntivo Connril for rrovincini Acts: it is ono of tlioso dolirnto throrotirjil (pioslionH which in pnictiro niiiv dovcbip sorions dilllcnltioM. Thoro is no (hnibt thjil tlio intonlion of tho const it ut ion is tlint tho Kin^ and his ropr(>s(>n(ativos Hhall have an individnal jtowor of vetoing, to bo nsod acciH'din^ to IhtMr disi-rotion f«»r th«« nonoi'al ^ood. Tlio llritish North America Act nowhoro limits (ho tho<»rotical ri^^lit to voto. Tho roasonal)lo consideration is that tho po\vt>r is ^ivon as a chock on tho other branches of the h';;islativo powor. If Ihe ri}rht were arbitrarily or nnreasonably ex4'rcised, a case for which (he const it nt ion does not provide, u reniedy wonld be fotind by a stoppajje of supplies; it is no( easy (o contiMnplate tho possibility t»f such an ovont. If the ri};ht wt'ro enft)rced to its undoubtedly strict thoo- retii'al extent, it nii^'jht lead to revolution. These con- siderations have woijilu'd to suth an extent hitherto, that l)ractically it may be said the veto is only nsoil under the advice of the Ministry for the time Ix'inj;. As to tho second domestic power vested in the King — that of military command. We have mentioned that the eonimand-in-chief of the militia and mival and mili- tary forces of and in Canada is vested in him. Of the m Ml 'O- I he honiiiii))ti liy i<ro|M'i'lv iiifiitioncd in hit* Hiird |.,„.,^ ,^,„| Hcliodnlo hIiIiII Im* lllO |.I0|MT|.V of CjHUMlil. TIk- i|,.M|H '""''""" iiionlionnl ill Iho hi'Im-iIiiIo jin- hh FoIIowh: I. <')iniilN, willi InnilM niid wnhr |)ow<-r roniM'(;t\villi. , 'J. I'lihlic luii'lioni-H. .'(. Iii^lil lioiiNCM nnd |)i*TH nnd Siildo iHliiiid. ■I. Sloi:nil»o!ilH, drrd^'cH :iiid |Mil»lic v«'hh<'Im. n. KivorH iiiid \'.\Ui' iiii|ii-ovrnni<'nlH. 0. Properly ImiiNfcrn'*! by llic liii|i<'rinl (lovern- iiH'iit, nnd known nw ordiinnce properly. II. Ann(niri<'H, drill Hlieds, niililnry elolliin^ nnd ninnilionH of war, nnd binds Nel npiirt for (i^ciwrn] public purposcH. liy virlue of (IiIh (rnnsfer jiiriHdielion over nil tlie.se niJitterH Ih exerclHed by llie riirlianienl of Cainuln. To that; exieiil: llie (!rown may be said lo have diveHt«.'d ilHcIf of lliat branch of ils prerofjallve. As to the vifj^hl of conllninj; llie Hubjed within thcr f;,,„fi„jnjf realm the iireroi^ntive i.s . ■ '=j i r.^ I i il < 1!!. . fi ■ ■■ 100 Riqhts of Persona [PAHT I 1 1 ' ^ "'■< King's rev enue in England. Ordinary revenue. struck botwoon Ist July, 1834, and Ist January, 18r)2, and after that date if weijjhinp ton pennyweights, eighteen grains Troy weight, and of tlie standard of fineness established in the last mentioned day. Tliese coins pass for ten dollars. Half and (juarter eagles and olher g(dd multiples and divisions pass for tlieir respective values under the same conditions. It is desirable to note that in this Act of tlie Domin- ion tlie i)rivilege of coining is reserved to tlie King. The Dominion ]»arliament has assumed only to fix the value of the coins as legal tender. • Having, in the preceding pages, considered at large those branches of the King's prci'ogative which contribute to his royal dignity and constitute the ex- ecutive power of the Government, we proceed now to examine the King's fiscal prerogatives, or sucli as regard his revenue; which the British constitution has vested in the royal person, in order to support his dignity and maintain his power; being a portion which each subject contributes of his property in order to secure the remainder. We will follow the same order of consid- eration as we have observed in discussing the subject of prerogative. The King's revenue in England will first be examined, and then in succession his revenue in Canada and in the province. This revenue is either ordinary or extraordinary. The King's ordinary revenue is such as has either sub- sisted time out of mind in the Crown; or else has been granted by Parliament, by way of purchase or exchange, for such of the King's inherent hereditary revenues as were found inconvenient to the subject. When I say that it has subsisted time out of mind in the Crown, I do 'not mean that the King is at present in the actual possession of the whole of his revenue. Much (nay, the greatest part) of it is at this day in the hands of subjects ; to whom it has been granted out from time to time by the Kings of England: which has rendered the Crown in some measure dependent on the people for its ordinary support and subsistence. T^ ' {.n cirAP. I, § 2] Relative (Public). 101 The sources of the King's ordinary revenue enumer- ated by Bhickstone are 18 in number. In Canada the revenue from all sources, as we shall see, is placed in one fund, and no person troubh's himself at present to investijjate the origin of any particular lax or claim. IJut it is necessary for us to know by what authority the tax is imposed, in the first instance ; and, besides, (piestions have arisen between the Dominion and the provinces as to which of them is entitled to certain revenues. Whether the revenue in question belongs to the Dominion or province, in any case the particular revenue can only be adjudged to the successful claimant on the ground that that claimant is the representative of the King, and has succeeded to his rights. ITencM! it may become necessary to know what those rights were. I propose only to mention those incidents of revenue which can have no application to Ontario, and, after briefly explaining the nature of the remaining items, pass on to our legislation. Of the eighteen items enumerated, the following i can be here disregarded: 1. Custody of the temporalities of bishops. 2. Corodies. 3. Extra i)arochial tithes. 4. First fruits and tenths of sjiii'itual preferment. 5. Rents and profits of the demesne lands of the Crown. These demesne lands were either the share re served to the Crown at the original distribution of landed property, or such as came to it afterwards by forfeitures or other means. There can be no demesne lands of the King in Ontario, because all such revenues were sur- rendered by the Crown for the benefit of the old Pro- vince of Canada, and by section 109 of the British Nortli AnuM'ica Act were continued as the property of Ontario and Quebec respectively. 0. Profits of the militarv tenures. These tenures were abolished in 1001. 7. Wine licenses, rents payable to the Crown by per- sons licensed to sell wine. This revenue was abolished in 1755 (30 Geo. II.). (irclinary revenue li- lt; 102 R if/Ids of Persona [I'AUT I I, Royal (isli Ship- wrecks. 17 E(hv. II. c. 11. iTetBam, flotsiini and ligaii. 8. I'roflta arising? from the King's forests. Forests are waste grounds belonging to the King, replenished with all manner of beasts or veuery; which are under t)ie King's protection for the sake of his royal recreation and delight. There are no forests in this sense in On- tario. 0. Profits arising from the King's ordinary Courts of justice. These consist not only in fines imposed upon olTenders, forfeitures of recognizances and amercements levied upon defaulters, but also in certain fees due to the Crown in a variety of legal matters; as, for setting the Great Seal to charters, original writs, and other forensic proceedings, and for permitting fines to be levied of lands in order to bar entails, or otherwise to ensure their title. We shall see that in Canada these and similar items are now part of the general r venue of the Do- minion and province respectively. 10. The right to royal fish, which are whale and sturgeon. Tliese, when either thrown on shore or caught near the coast, are the property of the King on account of their superior excellence. The assertion of this right is not likely to be called for in the province, except upon its northern boundary, the shores of Hud- son's Bay. 11. Sliipwrecks. These are declared to be the King's property by the prerogative statute 17 Edw. II. c. 11, and were so, long before, at the common law. Wreck by the ancient common law was where any ^'tiip was lost at sea and the goods or cargo were ;v ii\ upon the land; in which case these goods so • i ;• 'd were nd- judged to belong to the King: for, it w he'id that, by the loss of the ship, all property was gone out of the original owner. T^he rigour of this law was gradually softened in favour of the distressed proprietors. It is to be observed, that, in order to constitute a legal wreck, the goods must come to land. If they con- tinue at sea, the law distinguishes them by the barbar ous and uncouth appellations of jetsam, flotsam and ligau. Jetsam is whare goods are cast into the sea, and there sink and remain under water; flotsam is where ciiAP. I, § 2] Jicldtirr (Pal)lic). loa ihoy continuo swininiinp on tlio Hiirfsuc of tlio wmvos ; lifjan is wliorc they jih' sunk in tlic sen, but lird to a ?ork or buoy, in order to be found aRsiin. These are also the Kind's if no owner ajjpears to claim them; but, if any owner appears, ho is entitled to recover the pos- session. For even if they be cast overboard, without any nuirk or buoy, in order to lifjhten the ship, the owner is not by this act of necessity construed to have renounced his propert}': much less can thinjjs lijjan be supposed to be almndoned, since the owner has done all in his power to assert and retain his jn'operty. These three are there- fore accounted so far a distinct thin}? from Ihe former, that by tlie Kinfj's prant to a man of wrecks, thinjis jet- sam, flotsam and Uatm will not pass. Wrecks, in their lejial acc('|>la1ion, are at ]»resent not veiy fre(iuent ; for, if any floods come to land, it rarely happens, since the improvement of commerce, iiavipfation and corresponden<'e. that the owner is not able to assert his property wlihin the year and day lim- ited by law. And in order to preserve this property entire for him, and, if imssible, to prevent wrecks at all, our laws have made many humane regulations. For by 27 Kdw the statute 27 Edw. III. c. i:i, if any ship be lost on the ni'i- i:^- shore, and the goods come to land (which cannot, says the statute, be called Avreck), they shall b( presently delivered to the merchants, paying only a reasonable reward to those that saved and preserved them, which is entitled salvage. Also, by the common law, if any jtersons (other than the sherilT) take any go<>ds so cast on shore, which are not legal wreck, the owners might have a commission to in(iuire and find them out, and compel them to make restitution. In Canada the Dominion I'arliament has i)assi'd a liiW respecting wrecks and casualties to ships iiiid sal vage, the main provisions of which we will reach later on. .mg 12. The right to mines has its original from the^l'ne"' coinage in order to supply him of prerogati with materials. Therefore those mines whicli are projt- erly royal, and to which the King is entitled when I' :ipii;j 1'-' 1 'f ■il H. ': A j/ • ,it 1'-. . > r :': y ;■ 4' .' ' I- Pi I n 104 Ticiiiiuii' Tri)v»'. Ul(flifn of PfVMonn [I'AKT r found, .ire only tlioHo of Hilvcr and gold. By tin- «)ld common law, if aoUl or wilvcu* In? found in mines of base motal, aci'ordinj; 1o the opinion of Komc the wholo waH a royal niino, and Ix-lonRcd 1o tin* Kin^; tiionj^Ii otlu-rn hold that it only did ho if tlu' (piantily of jjold or silver waH of jjn'atrr valno than the any money or coin, gold, silver, jdate, or bullion is found hidden in tlu? eaiMh, or othtu' private place, the owner ther«'of being unl;nown; in wiiicii r, \\\\n\\ part wsih afisiKiu'd to be nil hidden trcasuiv; himIi as is caHiially lost and uiu'lainH'd, and also such as is d^'sifjncdly ahaiuhincd, still ninain the ri^ht of tlu> fortunate tindor. 14. Waifs, "bona wi.vlata," arc ^oodi st )len. and Waif ». waived or thrown away b.v I he tliief in his tlijjut, for fear of being apprehended. These are given to the King by the law as a punishment upon tiie owner for not himself pursuing the felon, and laiving away his goods from him. And therefore if the |>arly iol»bed do liis diilgenci' imme- diately to follow and appreiiend the thief (wliieh is calU'd making fresh suit), oi* do conviiM him afterwards, or pr<.)«'ure eviden<'e to convict iiim, he sliall have his goods again. Waived goods do also not belong to the King till seized by somebody for liis use; for if the party robbed can seize theui first, though at the distan( j of twenty yards, the King shall never have them. If the goods are hid by the thief, or left anywhere by him, so tliat he had them not about him when he fl( d, and there lore did not throw tluMn away in his tlight; these also are not ''bona waviata," but the ownt'r mav have them again when he i)leases. The goods of a foreign mer- ( hant, though stolen and thrown away in flight, shall never l)e waifs; the reason whereof may be, not only lor the encouragement of trade, but also because there is no wilful default in the foreign merchant's not X)nr- suing the thief; he being generally a stranger to our laws, our usages, and our language. 15. Estrays are such valuable animals as are Estmys. found wandering in any manor or lordsliip, and no man knowetli the owner of them; in which case the law gives them to the King as the general owncM" and lord paramount of the soil, in recom}>ense for the damage which they may have done therein; and they now most commonly belong to the lord of the manor by special grant from the Crown. But, in order to vest an absolute pr()i)erty in the King or his grantees, they must be pro- claimed in the church and two market towns next adjoin- ing to the place where they are found; and then, if no man claims them, after proclamation, and a year and a day passed, they belong to the King or his substitute > 1 iHH: lOG lliffhffi of Pct'HOIlS [I'AItT r l:r rt.; For- feitures. without rcdomption, even th()ii|;h the (»wii<'r w»'r(? a minor or mn\vv aii.v other I«'^'al incaimcity. Any boiists nii^'ht 1m* cstrayH that are l»,v nature tame or roc lainuible, Jind in wliich tlierc is a valuable property, as sheep, oxen, Hwine and horses, whieh we in R«'neral call ealtle. For iininnils upon which tlu' law sels no value, as a dog or cat, and animals fene natura», as a bear or wolf, can- not be considered as est rays. So swans may be est rays, but no! iiny other fowl; whence they are said to be royal fowl. TIh' reason of which distinction seems to bi', that n of jji-op- eity. ni' any part of it, wliich tlio h»\vs have befon? iissi;,Mie(l liim. Ilenee, in ev«'ry olTeuee of an alrocious kind, (he hiws of Kn^hnul have exa<'led a lolal coiifls- cation of the movailes or p(>i*sonal estate; and in many cases a perpetual, in .dhers only a temporary, loss of the olTender's immovuhies oi* landed proixM-ty; and have v«>sted fliem both in the Kinj;, who is llic person sup- posention them here for the sake of rcjriilarity, as a part of the census refjalis. 17. Another branch of the Kinjj's ordinary rev<»nuc i:>chpats. arises from escheats of lands, which ha]>p<>n upon the defect of heirs to succeed to the inheritance; where- iipon the,v in {general revert to and invest in the Kinp, who is esteemed, in the eye of the law. the orifjinal proprietor of all the lands in the kin^^dom. IJut the dis- cussion of this topic more properly belongs to the rij^hts of things than the rights of personc. IS. I proceed, therefore, to the eighteenth and last branch of the King's ordinary revenue; which consists in the custody of idiots, from whence we shall be natu- rally led to consider also the custody of lunatics. An idiot, or natural fool, is one that has had no un- i,ii„t. derstanding from his nativity, and therefore is by law jtresumed never likely to attain any. For wiiich reason the custody of him and of his lands was formerly vested in the lord of the fee ; but, by reason of the nuini- fold abuses of this power by subjects, it was at last provided by common consent that it should be given to the King, as the general conservator of his jieople, in order to prevent the idiot from wasting his estate and reducing himself and his heirs to poverty and distress. This iinal prerogative of the King is declared in Parlia- ment by statute 17 Edw. II. c. 9, which directs (in aftirm- J'nce of the common law) that the King shall have ward u It i * M 108 RlH; sumI aff(>r tli(> death of hiicIi idiots li«* Hliall roii- d«'r llu' cHtntc to the lioirM, in ordrr to prevent HUch idiotw from nlieiiiti^ tlieir hiii bein<> snpposed incapable of anv nnder- standiii^, as wantin;^ all those senses which fnraisli the hunnin mind with id(>as. Lunatic, 17 Edw. II. c. 10. A lunatic, or non compos mentis, is one who has had nnderstandinjj;, but by disease, jfrief, or other acci- dent, has lost the use of his reason. A lunatic is imleed propei'ly one that has lucid intervals; sometimes enjoy- injj his s«'nses and sometimes not, and tliat frequently, in the opinion of some, dependinj? upon the chanjje of the moon. lint under the fjeneral name of non compoM mentis (which. Sir Edword Coke says, is the most lejjjal name*, ai'e conipi'iscd not only lunati<'s. but persons under frenzies, or who lose their intellects by disease; those that ^low deaf, dumb and blind, not bein^ born so; or such, in short, as are jtidjjed, as well at law as in ecjuity, incajtable of conduct in}; their own atlairs. To tlie.se also, as well as idiots, the Kinfj; is guardian, but to a very ditt'erent purpose. For the law always imapfines that these accidental misfortunes may be removed, and therefore only constitutes the Crown a trustee for the unfortunate persons, to protect their prop(M'ty, and to account to them for all profits received if they n'cover, or after tlair decease to their representative. And, therefore, it is declared by the statute 17 Edw. II. c. 10, that the Kinp shall provide for the custody and susten- tation of lunatics, and ])re8erve their lands and the pro- tits of them for their use, when they come to their rijj;ht mind; and the Kin}; shall take nothin}; to his own use: and if the jmrties die in such estate, the re.sidue shall f * < IIAI'. I, $j 2] Jirhttlir ( l*iihHc). 109 l(> }»' (llHtrlbulrd for (ln'ir soiiIh. l>,v llic jidvicc <»f tlic onH- iiary. jiud of ('onrsc (hv iIm' Kiil»H<(|iM'nl siimMulnn'iitM of tli«> law of ndiniiiislriilioti) hIuiII now ;;o to Ihcii' execu- tors or iHliiiiiiistnitoi'H. On \\\v lliHl allJM'k of hmaty, or oIIum- ocrasional Insanity, wliile tliere may be l-opes of a s|>ec I.e^Mslatnre, to iircvent all abuses incident to such private custody, has thou^jht projHT to interpose its authority, and many statutes hav«! been passed for renulatiuf^ private nuKlhowscs. As to the mode of dealing in Onti-rio with the cus- tody of the jierson and estate of lunatics, we will con- sider this matter when wo treat of the ^)rnctlce of the Courts. This may suflflce for a short view of the Kind's ordi- nary revenue, or the proper patrimony of the Crown, which was very larpe fornu'rly, and capable of bein>; increased to a magnitude truly formidable; for there an? very few estates in the kingdom that have not, at some period or other since the Norman ('onquest, been vested in the hands of the Kinj; by forfeiture, escheat, or other- wise. But, fortunately for the liberty of the subject, this hereditary ]and<>d revenue, by a series of imj)rovi- dent manaj?ement, is sunk almost to nothing, and the casual profits arising from the other brandies of the census repalis are likewise almost all of them alienated from the Crown. In order to supply the deficiencies of which we are now obliged to have recourse to new methods of raising money, unknown to our early ances- tors; Avhich methods constitute the King's extraordinary revenue. The items of extraordinary revenue enumerated by Extraor- lilackstone were : 1. The land tax. 2. Malt tax. KevJnue. Both of these were said to be annual taxes. The per- petual taxes were: 1. The customs. 2. The excise. 3. Duty upon salt. 4. Post-oflflce. 5. Stamp duties. 6. Duty upon houses and windows. 7. Tax upon servants. 8. Duty arising from licenses on hackney coaches. 9. ! ;1 1 110 Rights of Persons [PAHT I m" W D'lty upon offices and pensions. Much of what he say* is entirely of local application. A review of our Cana- dian system of taxation would seem to lead us into the domain of politics, but a statement of the origin of some of these taxes is useful. It is not enough to know that they must be paid. The principle on which they are levied should also be understood. Land Tax. I. The land tax superseded all former methods of rating either property or persons in respect of their prop- erty. Any discussion of the nature or propriety of this tax belongs to the subject of political economy, and must be dismissed here with only a mention of the name of the tax. Malt Tax. H. The other annual tax was the malt tax, which was a sum raised every year by Parliament, ever since 1697,. by a duty of 6d. in the bushel on malt, and a propor- tionable sum on certain liquors, such as cider and perry, which might otherwise prevent the consumption of malt. CuBtoms. Among the perpetual taxes which require more detailed notice are: I. The customs; or the duties, toll, tribute, or tariff,^ payable upon merchandise exported and imported. The considerations upon which this revenue (or the more ancient part of it, which arose only from exports) was invested in the King were said to be two: 1. Because he gave the subject leave to depart the kingdom, and to carry his goods along with him. 2. Because the King I was bound of commoL' right to maintain and keep up the ports and havens, and to protect the merchants from pirates. Some have imagined they were called with us customs because they were the inheritance of the King by immemorial i{sage and the common law, and not granted him by the statute ; but Sir Edward Coke has clearly shown that the King's first claim to 3 Edw. I. them was by grant of Parliament, 3 Edw. I., though the record thereof is not now extant. And indeed this is in express words confessed by statute 25 Edw. I. c. 7, wherein the King promises to take no customs from mer chants without the common assent of the realm, "savinj,^ to us and our heirs the customs on wools, skins and 25 Edw. I, c. 7. ll'l !'• ■'''!?,:;: CHAP. I, § 2] Relative (Puhlic). Ill leather, formerly granted to us by the commonalty afore- said." These were formerly called the hereditary cus- toms of the Crown, and were due on the exportation only of the said three commodities, and of none other; which were styled the staple commodities of the kingdom, because they were obliged to be brought to those port'^ Avhere the King's staple was established, in order to be there first rated and then exported. They were denomi- nated, in the barbarous Latin of our ancient records, " custuma," not " consuetudines," which is the language of our law whenever it means merely usages. The duties on wool, sheepskins, or wool-fells, and leather exported, were called " custuma antiqua sive magna,'' and were payable by every merchant, as well native as stranger; with this difference, thjit merchant-strangers paid an additional toll, viz., half as much again as was pnid by na dves. The "custuma parva et nova" were an impost of 3d. in the pound, due from merchant-strangers only, for all commodities, as well imported as exported; which was usually called the alien's duty, and was first granted in 31 Edw. I. But these ancient hereditary •^ustoms, 3i Edw. i. especially those on wool and wool-fells, came to be of little account, when the nation became sensible of the advantages of a home manufacture, and prohibited the exportation of wool by statute 11 Edw. III. c. 1. There is also another very ancient hereditary duty PrUaffe. belonging to the Crown, called the prisage or butlerage of wines; which is considerably older than the customs, being taken notice of in the great roll of the exchequer, 8 Rich. I., still extant. Prisage was a right of taking two 8 Rich. I. tuns of wine from every ship (English or foreign) im- porting into England twenty tuns or more; one before and one behind the mast, which by charter of Edw. I. was exchanged into a duty of 2s. for every tun imported by merchant-strangers, and called butlerage, because paid to the King's butler. Butlerage. Other customs payable upon exports and imports were distinguished into subsidies, tonnage, poundage, and other imposts. Subsidies were such as were im- Subsidies. posed by Parliament upon any of the staple commodities before mentioned, over and above the " custuma antiqua 1 1 Kdw. III. c. 1. li ft; 112 Tonnage. Poun C/ustoms. i; liz. . 19. Riffhts of PersionH [PAllT I et magna:" tonnapo was a duty upon all wines imported over and above the prisage and butleragc aforesaid : poundage was a duty imposed ad valorem, at the rate of 12d. in the pound, on all other merchandise whatso- ever; and the other imposts were such as were occasion- ally laid on by Parliament, as circumstances and times required. These distinctions are now in a manner for- gotten, except by the officers immediately concerned in this department; their produce being in effect all blended together, under the one denomination of the cus- toms. By these we understand, at present, a duty or sub- sidy, paid by the merchant, at the quay, upon all com- modities imported as well as exported, or carried coast- wise, by authority of Parliament; unless where, for par- ticular national reasons, certain rewards, bounties, or drawbacks are allowed for particular exports or im- ports. Those of tonnage and poundage, in particular, were at first granted, as the old statutes (and particu- larly 1 Eliz. c. 19) exi)ress it, for the defence of the realm, and the keeping and safeguard of the seas, and for the intercourse of merchandise safely to come into and pass out of the same. They were at first usually granted only for a stated term of years, as, for two years in 5 Rich. II.; but in Henry the Sixth's time they were granted him for life by a statute in the thirty-first year of his reign: and again to Edward IV. for the term of his life also; since which time they were regularly granted to all his successors for life, sometimes at the first, some- times at other subsequent Parliaments, till the reign of Charles the First, whose Ministers were not sufficiently solicitous for a renewal of this legal grant. And yet these imposts were imprudently and unconstitutionally levied and taken, without consent of Parliament, for fifteen years together; which was one of the causes of the rebellion against that King. Upon the Restoration this duty was granted to King Charles the Second for life, and so it was to his immediate successors; but by three several statutes, 9 Ann. c. 6, 1 Geo. I. c. 12, and 3 Geo. I. c. 7, it is made perpetual and mortgaged for the debt of the public. The customs thus imposed by CHAP. I, § 2] Relative (Public). 118 his to kmo- rarliament were chiefly contained in two books of rates, set forth by parliamentary authority; one signed by Sir Harbottle Grimston, Speaker of the House of Commons in Charles the Second's time; and the other an addi- tional one signed by Sir Spencer Compton, Speaker in the reign of George the First; to which also subsequent additions liave been m.ade. But one of the most useful efforts of modern legislation has been the consolidation of all the Acta and regulations relating to the customs. Tlie customs laws of the Dominion will be piresently slated when we arrive at Canadian legislate m on this subject. Aliens formerly paid a larger proportion than Aliens' natural subjects, which was what was generally under- ^"*^y- stood by the aliens' duty; to be exempted from which was one principal cause of the frequent ai)plication8 to Parliaments for Acts of naturalization. IV. Directly opposite in its nature to the customs Kxcis.. duty is the excise duty; which is an inland imposition, paid sometimes upon the consumption of the commodity; or frequently upon the retail sale, which is the last stage before the consumption. This is doubtless, impartially speaking, the most economical way of taxing the sub- ject: the charges of levying, collecting, and managing the excise duties being considerably less in proportion tlian in other branches of the revenue. It also renders the commodity cheaper to the consumer than charging it with customs to the same amount would do; for tlu^ reason just now given, because generally paid in a muclt later stage of it. The excise duty is also a great check to the adulteration of the articles on which it is levied. But at the same time the rigour and arbitrary proceed- ings of excise laws seem hardly compatible with th<; temper of a free nation. For the frauds that might be- committed in this branch of the revenue, unless a strict watch is kept, make it necessary, wherever it is estab- lished, to give the oflBcers a power of entering and searching the houses of such as deal in excisable com- modities at any hour of the day, and in many cases of the night likewise. And the proceedings in case of trana- K.B-8 114 Rights of Persons [pari- I m gressions are so summary and sudden that a man may be convicted in two days' time in the penalty of many thousand pounds by three commissioners or two justices of tlic peace; to tlie total exclusion of the trial by jury and disregard of the common law. The excise duty was first t^stablished in 1G43, and its process was gradual; being at first laid upon those persons and commodities where it was supposed the hardship would be least perceivable, viz., the makers and vendors of beef, ale, cider, and perry, and the royal- ists at Oxford soon followed the example of their brethren at Westminster by imposing a similar duty ; both sides protesting that it should be continued no longer than to the end of the war, and then be utterly abolished. But the Parliament at Westminster soon after imposed it on flesh, wine, tobacco, sugar, and sucli a multitude of other commodities that it might fairly be denominated general. Upon King Charles's return, it having then been long established, and its producer well known, some part of it was given to the Crown, in 12 Car. II., by way of purchase (or rather compensation) for feudal tenures and other oppressive parts of the hereditary revenue. And this is still called an heredi- tary excise. But, from its first original to the present time, its very name has been odious to the people of Eng- land. It has nevertheless been imposed on abundance of other commodities in the reigns of King William III. and every succeeding prince, to support the enormous expenses occasioned by our wars on the continent. Thus brandies and other spirits are now excised at the dis- tillery; printed silks and linens, at the printer's; starch and hair powder, at the maker's; gold and silver wire, at the wire-drawer's; plate, in the hands of the veiidor, who pays yearly f 6r a license to sell it ; auctioneers, who are charged with an annual duty for their licenses; and coaches and other wheel carriages, for which the occu- pier is excised, though not with the same circumstances of arbitrary strictness as in most of the other instances. To these we may add coffee and tea, chocolate and cocoa paste, for which the duty is paid by the retailer: all arti- ficial wines, commonly called sweets; paper and paste- W ' i'l n CHAF 1, § 2] Relative (Public). 115 kous dis- nro board, first when made, and ap;ain if stained or printed: malt, as before mentioned, and now rendered a perpetual tax; vinegars, for all which the duty is paid by the manufacturer; hops, for which the person that gathers them is answerable; candles, which are paid for at the maker's; malt liquors brewed for sale, which are excised at the brewery; cider and perry, at the vendor's; and leather and skins, at the tanner's. " A list, which," in the opinion of Blackstone, " no friend to his country would wish to see farther increased." 3. The next duty mentioned by Blackstone is the salt tax, with which we need not concern our.selves. 4. Another very considerable branch of the revenue Poet office, is levied w'^'' greater cheerfulness, as, instead of being a burden, it is a manifest advantage to the public. I mean the post office, or duty for the carriage of letters. As we have traced the original of the excise to the Par- liament of 1643, so it is but justice to observe that this useful invention owes its first legislative establishment to the same assembly. In 1G57, a regular post office was erected by the authority of the Protector and his Parliament, upon nearly the same model as has been ever since adopted, and with the same rates of postage as continued till the reign of Queen Anne. After the Restoration a similar office, with some improvements, was established by sta- tute 12 Car. II. c. 35, but the rates of letters were altered, and some farther regulations added, by the statutes 9 Anne, e. 10, and many others. The privilege of letters |!/J,)'"' coming free of postage, to and from members of Parlia- ment, was claimed by the House of Commons in IGGO, when the first legal settlement of the present post office was made; but afterwards dropped upon a private assur- ance from the Crown that this privilege should be allow- ed the members. " There cannot be devised," says Black- stone, " a more eligible method than this of raising money upon the subject: for therein both the Government and the people find a mutual benefit. The Government thus acquire a large revenue: and the people do their busi- ness with greater ease, expedition and cheapness, than m in II ' !■! 116 Rights of Pernona [part I if:^i 1 ;i Stamp Duties. 5 & 6 W. &M, c. 21. they would be liable to do if no such tax (and of course no such oflBce) existed." Our Canadian legislation on the subject of the post office will bo dealt with presently. 5. A fifth branch of the perpetual revenue consists in the stamp duties, which wore, in the time of Black- stone, a tax imposed upon all parchment and paper whereon any legal proceedings or private instruments of almost any nature whatsoever are written; and also upon licenses for retailing wines, lotting horses to hire, and for certain other purposes; and upon all almanacks, newspapers, advertisements, cards, dice, and pamphlets containing less than six sheets of paper. These imposts are very various, according to the nature of the thing stamped, rising gradually from a penny to thousands of pounds. The first institution of the stamp duties was by statute 5 & 6 W. & M. c. 21, and they have since in many instances been increased to ten times their original amount. The only stamps we have to do with in Ontario are those on legal proceedings. The other duties mentioned by Blackstone I will not atteiipt to enumerate, as we have to pass on as rapidly as possible to our own system of taxation. The appropriation of these several branches of revenue in England I will not attempt to describe. It does not directly interest us in Ontario, although wo receive indirect benefit from much of the expenditure in the protection afforded us by the navy and the diplo- matic service. The appropriation of the income of Can- ada and of the Province of Ontario is specially dis- tributed by statute of each, as we shall see. The respective products of the several taxes before- mentioned were originally separate and distinct funds; being securities for the sums advanced on each several tax, and for them only. But at last it became necessary, in order to avoid confusion, as they multiplied yearly, to reduce the number of these separate funds by uniting and blending them together; superadding the faith of Parliament for the general security of the whole. So €irAP. I. § 2] Relative (Public). 117 that there were only three capital funds of any account, tlie aggregate fund, and the general fund, so called from such union and addition; and the South Sea fund, being the produce of the taxes appropriated to pay the interest of such part of the national debt as was advanced by that company and its annuitants. And by the statute 27 Geo. III. c. 13, these three funds were united together, and form the consolidated fund, and the consolidated funds of England and Ireland were afterwards united by the 56 Geo. III. c. 98. This last fund has become the great national security, and its whole produce, thus aggregated, is liable to pay such interest or annuities as were formerly charged upon each distinct fund; the faith of the legislature being moreover engaged to sup- ply any casual deficiencies. The customs, excise, and other taxes, which are to support these funds, depending on contingencies, upon exports, imports, and consumptions, must necessarily be of a very uncertain amount; but though some of them have proved unproductive, and others deficient, the sum total has been usually more than was sufficient to answer the charge upon them. The surpluses therefore of the three great national funds, the aggregate, general, and South Sea funds, over and above the interest and annui- ties charged upon them, in tlie year 1716 wer* directed, by statute 3 Geo. I. c. 7, to be carried together, and to attend the disposition of Parliament; and was usually denominated the sinking fund, because originally des- tined to sink and lower the national debt. To this was added many other entire duties, granted in subsequent years; and the annual interest of the sums borrowed on their respective credits was charged on and payable out of the produce of the sinking fund. However, the net surpluses and savings, after all deductions paid, nmounted annually to a very considerable sum. For, as the interest on the national debt has been at several times reduced (by the consent of the proprietors, who had their option either to lower their interests or be paid their principal), the savings from the appropriated revenues came at length to be extremely large. After various experiments for the reduction of the national 27 (ieo. III. c. 13. 5fi ( Jeo. Ill c. 1>8. 3 Ge«i. I, c. 7. ■! n I i,,i. 118 Rights of Persons [part I i f- 1 iVT'27 ^^^^ ^^ *^^^ '^^^ ^^ ^^^' ^^' ^' ^^' which came into opera- tion on the 5th of July, 1829, it was enacted, that the sum thenceforth annually applicable to the reduction of the national debt shall be the sum which shall ap- pear to be the amount of the whole actual annual sur- plus revenue beyond the expenditure of the United King- dom. This sinlving fund is the last resort of the nation ; its only domestic resource, on which must chiefly depend all the hopes England can entertain of ever dischargiujic or moderating her incumbrances. King'B CivU List, But, before any part of the consolidated fund (the surpluses whereof are one of the chief ingridients that form the sinking fund) can be applied to diminish the principal of the public debt, it stands mortgaged by Par- liament to raise an annual sum for the maintenance of the King's household and the civil list. Under this latter term is now included the King's revenue in his own distinct capacity, the rest being rather the revenue of the public, though collected and distributed again in the name of and by the officers of the Crown, it now standing in the same place as the hereditary income did formerly; and as that has gradually diminished the parliamentary appointments have increased. Upon the whole it is doubtless much better for the Crown, and also for the people, to have the revenue settled upon the modern footing rather than the ancient. For the Crown, because it is more certain, and collected with greater ease : for the people, because they are now delivered from the feudal hardships, and other odious branches of the prerogative. And though complaints have some- tiiiios been made of the increase of the civil list, yet if we consider the sums that have been formerly granted, the limited extent ' under which it is now established, the revenues and prerogatives given up in lieu of it by the Crown, and (above all) the diminution of the value of money compared with what it was worth in the last century, we must acknowledge these complaints to be void of any rational foundation: and that it is impos- sible to support that dignity which a King of Great Britain should maintain with an income in any degree less than what is now established by Parliament. T ^^W^ ClIAP. I, § 2] Relative (Public). 119 This finishes our inquiries into the fiscal preroga- Review of tivoa of the King; or his revenue, both ordinary and ex- iVeroga- traodinary. We have tlierefore now chalked out all the ^^^^' principal outlines of this vast title of the law, the suprenx' executive magistrate, or the King's Majesty, considered in his several capacities and points of view, liut, before we entirely dismiss this subject, it may not be improper to take a short comparative review of the power of the executive magistrate, or prerogative of the Oown, as it stood in former days, and as it stands at present. And we cannot but observe that most of the laws for ascertaining, limiting, and restraining this pre- i.imit*. rogative have been made within the compass of little ^lons- more than a century past; from the petition of right, in o Car. I., to the present time. So that the powers of the Crown are now to all appearance greatly curtailed and diminished since the reign of Kiiig James the First: par- ticularly by the abolition of the Star Chamber and High ('onimissiou Courts in the reign of Charles the First, and by the disclaiming of martial law, and the power of levying taxes on the subject, by the same prince: by the disuse of forest laws for a century past; and by the many excellent provisions enacted under Charles the Second; especially the abolition of militarytenures, purveyance, and pre-emption: the Habeas Corpus Act; and the Act to prevent the discontinuance of Parliaments for above three years; and, since the Revolution, by the strong and emphatical words in which our liberties are asserted in the Bill of Rights, and tlie Act of Settlement; by the Act of triennial, since turned into septennial elections; by the exclusion of certain officers from the House of (^ommons; by rendering the seats of tiie Judges perma- nent, and their salaries liberal and independent; by restraining the King's pardon from obstructing pailia- nientary impeachments; and above all by the passing of the Reform Act. Besides all this, if we consider how llie Crown is impoverished and stripped of all its ancient revenues, so that it must greatly rely on the liberality of Parliament for its necessary support and maintenance, we may perhaps be led to think that the balance is inclined pretty strongly to the popular scale. Jr.. iji ■ >|' 120 Jiifjhtfi of Persona [I'AUT I ;iii< 'S' 'v ;■ -^^ ■ ) r,; r ■ j,n .r ii 'i ■ '3 3 ' ■ « ■ ■• 1 '■' 1^ i ." |1 '■\ ' ^ : '\ .i V ■' 'J '" , ;■ ^ni : !r ;1--* ^Ifli ^ '1 ■' : i|: , : i and that the oxocutive ninjjjistrate Iuih neither indepen- dence nor power enough left to form that clieek upon the lords and commons which the founders of our consti- tution intended. Poweri, But, on the other hand, it is to be considered that every prince, in the first Parliument after his accession, has by long usage a truly ftoyal addition to his heredi- tary revenue settled upon him for his life; and has never any occasion to apply to Parliament for supplies, but upon some public necessity of the whole realm. This restores him to that constitutional independence, which at his first accession 8c<'ms, it must be owned, to be wjinting. And then, with regard to power, we may find perhaps that tlie hands of government are at least sufli- ciently strengthened: and that an English monarch is now in no danger of being overborne by either the nobility or the people. The instruments of power are not perhaps so open and avowed as they formerly were, and therefore are less liable to jealous and invidious reflic- tions: but they are not the weaker upon that account. In short, our national debt and taxes (besides the incon- veniences beforementioned) have also in their natural consequences thrown such a weight of power into the executive scale of government as we cannot think was Intended by our patriot ancestors ; wlio gloriously struggled for the abolition of the then formidable parts of the prerogative, and by an unaccountable want of foresight established this system in their stead. The entire collection and management of so vast a revenue, being j)laced in the hands of the Crown, has given rise to such a multitude of new officers, created by and remov- able at the royal pleasure, that they have extended the intiuence of government to every corner of the nation. These, it requires but very little penetration to see, must give that power on which they depend for subsistence an influence most amazingly extensive. To this may be added the frequent opportunities of conferring particular obligations, by preference in loans, subscriptions, tickets, remittances and other money transactions, which will greatly increase this influence; and that over those per- sons whose attachment, on account of their wealth, is w '^ -h osited in the royal exchequer, and thence issued out to the respective offices of payment. This revenue the people can never refuse to raise, because it is made per- petual by Act of Parliament; which also, when well con- sidered, will appear to be a trust of great delicacy and high importance. Upon the whole, therefore, I think it is clear that, whatever may have become of the nominal, the real power of the Crown has not been too far weakened by any tra'^sactions in the last century. Much is indeed i\ u M ' i . 1:1 m ■ i, 122 RIghfH of Pcrmnn [PAiiT r p. mi ■' 1 % & mm ''i Kiven up; but much is also acquired. Tlio stem eoni- inandH of prerogative have yielded to the milder voice of influence: the nlavish and exploded doctrine of non- resistance has jfiv<'n way to a military establishment by law; and to the disuse of Parliaments has succeeded a parliamentary trust of an immense perpetual revenue: the management of which, more especially of lat(? years, has been open to public and parliamentary scrutiny, and the fullest inquiry allowed as to its appropriation. When, indeed, by lue free operation of the sinking fund, our national debt shall be lessened, although little can b(? now hoped from this; when the posture of foreign affairs, and the universal introduction of a well-planned and national militia, will suffer our formidable army to be thinned and regulated; and when (in consequence of all) our taxes shall be gradually reduced; this adventi- tious power of the Crown will slowly and imperceptibly diminish, as it slowly and imperceptibly rose. But till tliat shall happen, it will be our especial duty, as good subjects and good Englislimen, to reverence the Crown, and yet guard against corrupt and servile ihfiu- ence from those wlio are entrusted with its authority; to be loyal, yet free; obedient, and yet independent; and, above everything, to hope that we may long, very long, continue to be governed by sovereigns, who, like Her present Majesty and many of her illustrious anccs tors, in all tliose public acts that have personally pro ceeded from themselves, have nmnifested the highest vene;'ation for tlie free constitution of Britain; have already in more tlian one instance remark.ably strenj^tli ened its outworks; and will therefore nev«n* harbour a thought, or adopt a persuasion, in any the remotest degree detrimental to public liberty. Having explained, as I think, sufficient particulars concerning the King's revenue in England to enable uh to understand the origin of the several items of his rev- enue, I now proceed to consider his revenue in Canada. King's The King's revenue in Canada is almost entirely Canada. '" derived from what have been mentioned as the extra- ordinary sources of revenue. What have been above mentioned as tlie ordinary sources of the King's revenue m CHAP. I, § 2] Relative (Pubiw)- 123 arc tt vory Hinall part of tlio revonues of thlH country. In fnct, ju8t UH in Kn^land itH<>lf, the oxtrnordinnry rovenn"«« hav(" bccoin*' tlu» ordinary Bource from which thf piihlic cxpcndituiVH arc met, the ordinary revenues, Ho-called, hav(> dwindled to inHi^nitlcuuce. Under the JtritiHh North Aini'ricii Act the right h of UifrhtHof raiHing a revenue for Dominion puiposea aiitiKued to thi' t(*,'r»iie'a' Dominion Parliament are ditlereiit frdltl those of tlie >"^t'n"e. provinces, liy section {)!, numbers 1, .'{ and 4, the t>o- . „ . minion Parliament has the ri^ht to legislate concerning Act.iteo8. Ill, No8. U (a) The public debt and property; 3, 4. (/>) The raising of money by any mode or system of taxation, and (c) The borrowing of money on the public credit. Besides these general powers the following revenue- producing sources are specially assigned to the same authority : ((/) Postal service; ihid. No.5 (f) Sea coast and inland fisheries; Ii)id.i2. (/) Ferries between a province and any British or ibui. 13. foreign coasts or between two provinces; ig) Fees from patents and copyrights also belong to ibid. 22, 23- the Dominion, and also those items contained in the third schedule of the Act, which I have already men- tioned. Lastly, by section 107, all stocks, cnsh, bankers' ibid, balances and securities for money belonginij to each y)ro- ^*^^' '' vince at the time of the union were to become the prop- erty of Canada, and to be taken in reduction of the respective debts of the provinces at the union. By section 102 of the same Act all duties and ibid. revenues over which the respective Legislatures of Can- "*"' "" ada, Novft Scotia and New Brunswick, before and alter the time of the union, namely, 1st July, 1807, had any power of appropriation except those portions reserved to the Provinces are to form the Consolidated Revenue Fund. This fund is to be appropriated for the public wrviee of Canada. \i'} ■iH i 1 m km il ] I- ' ;. ..if. :S 'Mi 124 Rights of Persons [part i tion"af^ To the provinces have been assigned certain sources liabilities of revenue, which I will enumerate in their proper place. vinces by I^astly, as between the Dominion and the provinces there DominioiL ^y^s an assumption of liabilities as follows :• B. N. A. 1. The Dominion assumed the debts and liabilities Act, sees. « , . . J, 111 to 119. 01 each province at the union. 2. The provinces became liable to the Dominion for any surplus over their debt, as follows: Ontario and Quebec jointly for any sum over $62,500,000 Nova Scotia 8,000,000 New Brunswick 7,000,000 in each case with interest at five per cent. The debts of the provinces were to be reduced, as above stated, by the amount of stocks, cash, bankers' balances and secu- rities for money to be taken over by the Dominion. 3. The Dominion was obliged by the Act to pay yearly to the provinces for the support of their govern- ments as follows : Annual Ontario .$80,000 aubaidies. Quebec 70,000 Nova Scotia 60,000 New Brunswick 50,000 Also, an annual grant in aid of each province equal to 80 cents per head of the population, as ascertained by the census of 1861. These grants are in full settlement of all demands on the Dominion, and are payable half- yearly, in advance, to each province. But the Dominion deducts from such grants as against any province all sums chargeable as interest on the public debt of the province, in excess of the amounts stipulated for by the Act. Certain- special provisions were made with regard to Nova Scotia and New Brunswick. Nova 1- The grant of 80 cents per head was to be calcu- New* '^"^ lated according to the census of 1861, and subsequently Brunswick by each decennial census, until the population of each of rants. these provinces reached 400,000, at which rate the 54-55 Vict. * On these matters and other disputed questions of accoanl as arbi- -c. 6 (Dom.) tration is provided for by Dominion and Provincial legislation. CHAP. I, § 2] Relative (Public). 125' grant was to remain. By the census of 1891 the popu- lation of the two provinces was as follows: Nova Scotia 450,523 New Brunswick 321,294 2. New Brunswick was to receive for the period of ten years after the union an additional allowance of |G3,000 per annum. 3. If the public debt of Nova Scotia and New Bruns- wick, respectively, did not at the union amount to ^8,000,000 and |7,000,000, they were to receive from the Dominion interest at five per cent, half-yearly ou the difference between the actual amount of their respective debts and the above-mentioned amounts of $8,000,000 and $7,000,000. As a fact, the debts were above these two sums.* 4. As long as the public debt of New Brunswick remained under $7,000,000, a deduction was to be made from the additional annual allowance of $63,000 equal to the interest at five per cent, on that deficiency. 5. Certain special lumber dues were allowed in New Brunswick, but New Brunswick having passed an Act repealing these export duties, the Dominion allows that province $150,000 per annum as indemnity for their loss. Since the Confederation Act other provinces have Provinces been added to the Dominion as follows : ^qnenUy British Columbia. SaSon!"'^ Prince Edward Island. Manitoba. Debts of these provinces have in like manner been assumed by the Dominion, With regard to these provinces, and also with regard Readiust- to the old provinces, readjustments of the debts assumed "'♦'"^ ^^. , *^ ' . ' provincial debta. • The Public Debts of Canada, Nova Scotia and New Brunnwick at the time of the Union were respectively as follows : Principal. J.ntereit. Canada »67,912,408 »3,589,303 Nova Scotia 8,280,600 297,680 New Brunswick 7,195,200 849.288 m m \ \ 126 u. a. c. c. 4«. Consoli- dated Revenue Fund of ]>oiiiinion. Appropri- utiun of incoine of Dominion. Rights of Persons [part i by the Dominion have from time to time been made. At present those old provinces stand as follows: Ontario and Quebec ..from ^()2,5i)(>,()00— J|7.%0l)6,088.R4 Nova Scotia " 8,000,000— 9,180,7.50.00 New Brunswick " 7,000,000— 8,807,720.00 The subsidies above mentioned to the old provinces were increased as if from tlie 1st July, 1807, although the increase was consented to on 1st January, 1ST.\. The arrears were computed and fixed as follows: The yearly increase would have amounted in each case as follows: Capitalized at Ontario and Quebec $200,875.10 $5,397,.W3 . 13 Nova Scotia 39,939.68 798,793.45 New Brunswick 30,225.97 604,519.35 Interest is allowed on these increased subsidies al five per cent. The Dominion Parliament and the Provincial Legis latures were thus endowed by the British North America Act with certain defined powers of taxation and of raising a national revenue, and also peculiar liabilities. The application of this revenue was in lik(» man ner defined. As we have seen, the Consolidated Revenue Fund of the Dominion is to be appropriated for the public service of Canada. This appropriation is subject to the following charges : 1. Expenses of collection, manngement and receipt. 2. Annual interest of the public debts of the pro- vinces of Canada, Nova Scotia and New Brunswick at the union. 3. Salary of the Governor-General. Fixed, as a >«' mentioned, by the Act itself at ten thousand pounas sterling, but subject to alteration by the Parliament of Canada. The Dominion has, under its general powers of bor rowing upon the jniblie credit conferred upon it by tli'' Act, contracted loans, and, in order to secure the repay- ment of the lenders, has charged upon the income of the ^•^^^'1 ,^ 'm^'n CHAP. I, § 21 Relative (Public.) Dominion the repayment of certain of these loana by jiiving them a preference after the charges fixed by the British North America Act. At present the income of the Dominion is directed to be appropriated as follows : First, Second and Third. The charg<'s above men tioned. Fourth. Interest at four per cent, on Intercolonial Kill 1 way loan, £n,()00,000 sterling, or ^14,G()0,0()0, interest guaranteed by England. This was an advance made by England to Canada to enable the latter to build the Intercolonial Railway, which was to be built in order to afford direct means of communication between the Maritime Provinces and Quebec. Fifth. Sinking fund for that loan at the rate of one per cent, per annum. Sixth. Any sum issued out of the Consolidated Fund of the United Kingdom under the Canadian Rail- way Loan Act, 1867 (Imperial Act), with interest at five per cent. Seventh. The sum of £1,000,000 sterling, raised for the completion of the Intercolonial Railway. The inter- est on this debt was not guaranteed by England. It was five per cent. Eighth. North- West Territory purchase from the Hudson's Bay Company, £300,000, or $1,460,000. Ninth. Sinking fund to repay last amount at the rate of one per cent, per annum. Tenth. Any advance made by England to Canada under its guarantee of above loan as provided by The Canada (Rupert's Land) Loan Act, 1869 (Imperial Act), with interest at five per cent. * Eleventh. Loan guaranteed by England under The Canada (Public Works) Loan Act, 1873. The amount of tliis loan was £3,600,000, with interest at four per cent. Twelfth. Sinking fund to repay this last-mentioned loan at the rate of one per cent, per annum. . Thirteenth. Any advance by England under its guarantee of above loan as provided by The Canada 127 ■f ^m m I m I t ii. Ji 128 Rights of Persons [part r 9 H ^"■' ': ' ^Bim ttll > H^ Hi 1- i !tal (Public Works) Loan Act, 1873, with interest at five per cent. Fourteenth. The yearly salaries of the Judges of the Supreme and Exchequer Courts. These items may be simplified as follows : 1. Costs of management. 2. Interest of public debts of provinces. 3. Salary of Governor-General. 4. Preferred Loans as above.* 5. Salaries of Judges of Supreme and Exchequer Courts. England's On looldng at this list one reflection presents itself, generous j^ shows Conclusively how great lias been England'* assistance. jo d * The histiory of t'lese loans is as follows : — (1) £3,000,000 authorized by Imperial Act 30, 31 Vict. c. 16 (1867),for the building of the Intercolonial Bailway. This loan was floated ia London as follows : 1869— £1,500,000 one moiety of the £3,000,000 500,000 on the credit of Canada only. £2,000.000 1873- -£1,500,000 the second moiety of the £3,000,000. 300,000 the Rupert's Land Loan, being No. 2 next referred to. £1,800,000 (2) £300,000 authorized by Imperial Act 32, 33 Tict. c. 101 for the purchase of Rupert's Land. (3) £3.600.000, Imperial Act 33, 34 Vict. c. 45, authorized the gutir- antee of a loan of £8, 000,000 for the construction of the Canada Pacific Railway and the canals. Imperial Act 33, 34 Vict. c. 82 (Canada Defences Act) authorized a guarantee of loan of £1,100,000 for fortifica- tions. This latter Act was repealed, and by 36, 37 Vict. c. 45 (1873), the amount of the guarantee was restricted to £3,600,000, the proceeds not to be applied to erecting fortifications but towards the Canada Pacific Railway and the canals. Canada under this guarantee obtained loans as^ follows : 1875— £1,500,000 of the guaranteed issue. 1,000,), 00 on credit of Canada only. £2,600,000 1876— £1,500,000 of the guaranteed issue. 1,500,000 on credit of Canada only. £ 3,000,000 The other £600,000 remained unissued until 1885, when £200,000' were disposed of. The balance is held as reserve under B. S. C. c. 31, B. B, against the note circulation of the Dominion. The information as- to the diBDosal of this £600,000 I owe to the kindness of Mr. Courtney ^ Deputy Minister of Finance. "mi CHAP, r, § 2] Relative (Public). 129 help to Canada. In order to create the Dominion the Intercolonial Railway was necessary. The Dominion could not have been created without it. Enp;land fur- nished the money and guaranteed the interest. Aj;ain, when Canada acquired the North-West Territories, with- out which the Dominion would be poor indeed, England furnished the money and guaranteed the interest. When money was required for public works the same thing happened. Truly this " Mother of Nations " has been generous to her children. Another reflection that forces itself upon the mind is that Canada, in thus set- ting out to make her own way, has incurred mighty responsibilities, which it will take every exertion to ^j,^^g ^^ fulfil. Her resources are great and her territory borrowing extended, but her liabilities, for which the public faith Dimlinion! is pledged, are enormous. It would be a reproach to the name of Canadian if these liabilities are not provided for, and the national credit sustained. The history of the successive loans which have been made to the Dominion is not part of my plan. What I have to explain is the mode which the law allows of obtaining these advances, and this law is as follows : The Dominion Parliament has provided that the r. s. c. following methods may be adopted by the Governor in ^- ^"' **• "• council where it is desired to raise money for Dominion purposes : (1) Debentures of Canada may be issued, the princi- pal and interest of which are to be chargeable on the Consolidated Revenue Fund. These debentures may be for such time and at such rate of interest, not exceeding six per cent, per annum, as the Governor in council may determine. (2) Dominion Stock, bearing interest at any rate not Ttmix)- exceeding six per cent. The principal and interest to "^'"^ ^"''"''• be chargeable to the Consolidated Revenue Fund. A sinking fund may be provided for Dominion Debentures or Dominioin Stock, not to exceed one-half of one per cent. K.B.— 9 w .. :r. » if '■I Sir 'f I' ' ll < If - 130 Fiscal agents. K. S. C. c. 2!). Auditor- General. Rights of Persons [part [ (3) Terminable Annuities. To be based at a rate of interest not exceeding six per cent. (4) Excliequer Bills or Exchequer Bonds in sums of not less than $400, with interest not exceeding six per cent, per annum, redeemable as the Governor in council ma}' direct. Any one part of the funded debt may be changed by substituting one class of securities for another, but neither the capital nor the annual charge for interest on the debt can be increased. But if four or five per cent. Dominion stock is substituted for securities bear- ing a higher interest, then the amount of capital may be increased by an amount not exceeding the difference between the then present value of the security bearing the higher interest, and that of the stock or debentures bu^/.i!;ituted for it. Provision is also made for the raising of temporary loans in case the exigencies of the public service demand it. These temporary loans must not bear a higher rate of interest than seven per cent. The amount to be raised must never exceed the amount of the deficiencies in the Consolidated Revenue Fund to meet the charges then due, and can be applied to no other purpose what- soever. An account in. detail of all temporary loans must be laid before the House of Commons within the first fifteen dnys of the next session. Having thus enumerated the powers as to the pub- lic revenue and expenditure of the Dominion, the next subject that presents itself is the mode of collection and management of the revenue. Fiscal agents may be ai)poiuted for the negotiating of loans and for the general purposes of services con nected with the management of the debt. For the col lection of the revenue, officers are appointed who, when they receive a salary at or exceeding |1,000 a year, can- not exercise any other calling or employment. An officer is appointed, called the Auditor-General, who examines the public accounts of Canada and reports to the House of Commons. All public moneys are paid to the credit of the account of the Minister of Finance and ;hap. I, § 2] Rehifive cPuhlirJ. 131 Keceiver-General. The Minister of Customs, the Min- ister of Inland Revenue, Postmaster-General, and all other Blinisters or persons cliarged with receipt of public moneys, must cause the gross revenue of their several departments to be paid to the account of the Minister of Finance and Receiver-General. When an.v M<>de of sum of money has been granted to Her Majesty by a tu'e!" resolution of the House of Commons, or by an Act of Parliament, to defray expenses for any specified public services, the Governor-General may, under his sign manual, countersigned by a member of the Treasury Board, authorize and require the Minister of Finance and Receiver-Generai to pay such expenses. The Min- ister of Finance must issue credits on the application of the Auditor-General in favour of the various depart- ments. Statements must be rendered monthly to the Auditor-General and Minister of Finance, and no credit must issue in favour of any otflcer or person in excess of any appropriation authorized by fin Act of Parliament. No cheque for public money can issue except on the cer- tificate of the Auditor-General that there is parlia- mentary authority for the expenditure, unless there is an opinion of the Attorney-General of Canada that there is authority. If, when l*arliament is Sptcial . . . * . -1 . ■■ . , warranto. not in session, any accident happens to any pub- lic work or building, requiring immediate outlay, or any other occasion arises when any expendi- ture, not foreseen or provided for by I*arliament, is urgently and immediately required, then the Governor in council may sign a special warrant for tlie issue of the amount required. The Auditor-General must b(> furnished with vouchers that all work performed or material supplied is according to contract, or, if not <'0v- ered by contract, that the price is fair and just. The public accounts of the Dominion include the period from Finanoial llie 30th of June in one year to the 30th of June in the ^''''^■ next year, which period constitutes the financial year. All payments submitted to Parliament must be for ser- vices coming in course of payment during the financial year, and all balances of appropriation which remain unexpended at the end of the financial year lapse and must be written off. An account may be kept open for ' 'if>i •' i :(i 1 irr n ( t 1 . •IP 132 Ru/hts of Persona [part I IJJ i ; 11 DoininiiiM noU'H. R. 8. C. c. 31. Public acoouiits of the Dominion, three montliH after the end of the financial year by order in ('onn<'iI, but not lonjjcr. All appropriatlou a('(;ountH must b(? ('xaniin(>d by llie Auditor-(jeneral, and in liiH re)>()i't to the I[onH(> of Commons he must call attenti(»n Jo everything? which he considerH noteworthy. The (fovernor in council may authorize the issue of Dominion notes to an amount not exceedinjj ^20,(M)0,()00^ by amounts not exceeding? |l,(M)(),ai'<«'I of floods on boanl and where laden. If an.v ^oo stated. (.'{) The phice wliere and the personH to whom the ^oodH are eonsi^neii niUHt appear, and where any and uhat piodH, if any, liave l»een Ia4h'n or nnbroken diirinf^: tlie voyage. (4) What jtai't of the rt, and the d<>stiiniti(m at any otiier port in Cana r(>niainder niuHt be Htated. (5) Wliat part of tlie cargo, if any, i» intend<'d to be exported in the mxuw vessel, and what surphiH stores remain on board, mnst also be set out. A master of a vessel arriving by inland navigation must report in the same way the goods on boiird his vessel. Tlie goods annalty for fraudulent conceal- ment. Any person arriving in Canada by any vehicle or on foot, and <;arrying goods, must also report in writ- ing to the nearest customs otticer, stating the goods. This report of the carrier is, then, the first step which is taken. TJie next step is taken ?jy the importer, who enters i he goods. If imported by sea, the entry must be made within three days after the arrival of the goods. If by inland navigation in a decked vessel of over one hundred tons, it must be made within twenty- four hours. If by inland navigation in any undecked vessel, or in any vessel less than one hundred tons, or by land, the entry must be made forthwith. Invoices must be produced, giving all particulars, to enable the duty to be ascertained. The invoice must be attested by the oa,th of the owner, or, if the owner is not the importer, by the oath of the importer or consignee. The oath of the non-resident owner or manufacturer may be further required in cases of doubt. When the customs oflBcer is satisfied as to the nature and the value ■F f; CM A I'. F, § 2) Jielaiive (Piddir). 135 of (lu> f!;(Hu\H, ilu'ii th(> (IntirH iniiHt be pnid. A pcinilt is IIk'II };iv(>n for (lie uiiliidiii^ oT lli<' (i^oocIh, uikI their coiivcvaiu'c fiirdicr in ('uiiMdu if n'i|uir(Ml. An iinpoitor iiijiy, liowrvcr, not wiwli to nnlonil liiw ^oods ul onrc, or itiiiy not be in n poHition to piiy tlx* diitioH ininu'diiitely, or he inny wish to dcnl willi ])iirt of the jjoodw and not wilh the wliolc of thctn. In onler to facilitate nier- chantH in this direclion cerhiin portH of entry are niaorls. At IIm'sc piaceH ^(xmIs may be removed f » warelionseH, wliere Ihey iwr Hlored under (Jovernment HnjierviHicm. The importer niiiHt ffive Heenrily by liiH own bond for the payment of the duties and observancf? of (MiHtomw recpiirementH, tlie penally of the bond beinj; d<)ul)le the amount of the duties. WIm'u the duty has been thus seeured, the goods may be removed, still under the control of the customs, from roduced to the collecttor and by him recorded. All jfoods must be finally cleared from tht? warohojise within two years, otherwis*,* they may be sold for the duty. No j)ayment of duties can be postponed in any way unless the floods are warehoused. Where a vessel is carryinj; goods outwards from Tanada, the master nmst make an entry outwards corre- sponding to the entry inwards. If a v, •-.^r^l is discharg- ing cargo or ballast, and it is desirc^d to load her with fresh cargo before the old cargo is altogether unloaded, what is called a '* stiffening order " is got from the cus- toms, permitting this to be done. Before the v<'ssel departs the master brings a '' content " to the customs officer, showing particulars of all goods laden, verified by declaration. When all necessary information as to cargo and passengers has been obtained, a clearance is given. This clearance states particulars as to the merchandise on board, if the ship is bound to any other I'tTlllitH. Wiiri'- IlilUHJlllf. Mntry outwardH. C! carance. 186 Jtifjhfn of Per»oi}H fl'AKT I 1 Mi)d<' (if enfiirce- ment of paynu'iit of duties. Provisions to prevt'iit amuffgling port in ('anada. OllnTwiHc it slah'S wIuMIum* tlic vt'Msel iH witli iiKM'cliaiHliHo or in ballaHt. A penalty of four Inindi'rd d(»llarH may Ih' inipoHtMl for leaving witlioul a clcaranrc. l{(>for<> a ('l(>ai'anc<> is ){i'ant<>d invoiccM nuiHt Im» d('liv»'r«Mi to tin' cnHtoniH by owntTH, HJii* n, or con- Hi|<:norH of ^oodH. l*articiilai'H Hlniilat' to t . required for entry inwardH niUHt he i^iven (o enable tlie amount of duty to be aH< ertain(>d, and tli«> duty muHt b(> paid before clearance can be isHued. Where ^oods ar«» ex- ported from a warehouHe the duties must be secured by a bond of the exporter and one other p(>rson. In th(> case of entry inwards the (jJovernment has the security of (he fi^oods. In the case of entry outwards the |i;ood8 are jjone, hence the necessity for u second bondsman. The penalty of the bond is in double the duties on im- portation timt the }>:oods shall be actually exported, and that proof of such «'xportation shall be furnished within a time fixed by the bond. (Joods to b(? er rted from Canada by rail or other land conveyance, t be also entered for ex[)ortation at the nearest custom house. An invoice of the poods is filed, verified by declaration, and the duty must be paid before tlu» goods are removed. These are the methods by which the duties of cus- toms are ascertained and collected. Their payment is enforced by sale of the goods, where the goods are seized, and false statements, as we have seen, are pun- ishable by flue. Smuggling is prohibited under penal- ties of flue and imprisonment. In order to prevent smuggling stringent provisions are enacted. Vessels hovering in British waters within one league of the coast may be boarded by a customs officer and warned off. If the vessel remains for twenty-four hours after the warning she can be taken into port, and if contra- band goods are foun& on board the vessel is conflscated. If a vessel with dutiable goods on board enters any other than a port of entry, unless from stress of weather, the goods, unless they belong to an innocent owner, are liable to seizure, and the vessel, if of less value than eight hundred dollars, may be forfeited. If the vessel is worth more than eight hundred dollars a flne of that amount is imposed, and the vessel is held for the amount. ciiAi'. I, 5} 2 1 Relative ( Puhlie), V,\7 If not psiid within thirty ihiyn the v(>hh('1 can bo sold. If ^(l by train tlic car iH Hoizcd and lu'conicH forfciti'il. All railway <>r cxprcHs HirvantH privy to th(> HnniKKlin^ arc liable to tln(> and inipriHon- nicnt. Kxt<>nsiv<' powcrH of H(>arch are given to ciiHtoniM otllcerH, and, if nec«'HHary, writM of aHHlHtance ar<' grunted hy the court h tt> aid them. A very inipovtant |>roviHion Ih made to prevent I^ohhh t<» undervaluation of ;^oo(m by tillowing the cuHtomn olllrer .inior. I(» take, on behalf oi' the ('rown, the goods at the prici; lliey were valued at by the importer, with ten per cent, sxlditional. The goodH are then Hold, and fifty per cent. of the proceeds, after repayment to the Crown of the aiiKMint paid and the legjil duty, are handed over to the (iiKtomH olYicer as a bonuM. ii. The next source of revenue to be considered Is the Excise. I have? already stated very fully the nature of this impost. It remains to be seen upon what articles i( is levied in (Canada, and how it is enforced. At present the following industries are subject to excis<': Distilh'ries, establishments for rectifying and compouiul- ing of spirits, malt houses, tobacco and cigar manufac- tories, bonded manufactories. For all of these occujja- tions licenses ai'o required, for which fees varying in junount must be paid. Notice must be given to the col- lector of inland revenue of intention to work any of these enterprises. If, after work is begun, there is an interruption of more than one week at a time, a fresh uotice of intention to begin must be given. Special provisions are made as to the requirements of each kind of business, which are too techni<'al to be repeated here, but some of tlie obligations apply to all pers(ms engaged iu these occupations. No person thus licensed can carry on his business during Sunday, or between six o'clock in the evening and six o'clock in th(» morning. Over the premises must be placed the name of tlie person or firm carrying on the business. Over each separate apartment must also be placed its designation. Stock books must be kept, showing day by day the quantity of stock brought in, and the quantity manufactured and KxcImc. |{. H. (,'. Restric- tions on [tersons curry iiijf iin \)un\- ncss sub- ject to excise. 138 Mights of Persons [part I !l >M: ll'ill \lV' Bonded Ware- liouse. sent out. A yearly inventory must also be furnished on the 1st of July of the raw material and material in pro- cess of manufacture. All books nmst be kept as re- quired by the Department of Inland Revenue, and all weij^hts and measures must be tested and verified by it. Duties of excise are charj?ed in addition to license duties, and are due and payable on the sixth day of each month on the jjjoods manufactured durin<; the preceding month. No goods can be removed until the duties art* paid or secured by bond. Excisable goods cannot be removed between six o'clock in the evening and seven o'clock the next morning. Articles subject to excise duty may be placed in what is called a bonded warehouse. The person who has sucli a warehouse must execute a bond for an amount equal to the sum which it is estimated the duty on the average quantity- of goods in the warehouse will amount. The building is secured by the joint lock of the Depait- ment of Inland Revenue and the owner or bailee of the warehoused goods, ^\'arehoused goods are at the risk of the owner, and, unless destroyed by fire, the duty remains payable. The duty is computed when the goods are entered, and the goods cannot be removed until the duties are paid. If a bonded warehouse is not on prem- ises for which a license is issued, a special license fee is required. In all cases revenue officers are allowed to enter and inspect buildings, machinery and appanitus. and, if necessary, to make a forcible entry. Courls will Protection grant writs of assistance in proper cases. Before an officers.""* «'if tion can be brought against a revenue officer for any- thing done in the exercise of his duty, one month's notice of action must be delivered to him. Every action must be brought within three months after the cause arose. The defendant may, within one month after receipt of the notice, tender amends, and, if found sufficient, ho is entitled to a verdict. If the case proceeds to trial. and the Judge certifies that the defendant acted ui)on probable cause, the plaintiff is entitled to a verdict for only twenty cents, without costs. CHAP, r, § 2] Relative (Public). 13D The penalties for infringement of the Act are ^'♦'naitids very severe, including seizure and forfeiture of goods, infiinge- rriachinery, stock and apparatus. When seized, the "*"" "" «,'oods are taken possession of by the officer of inland levenue, marked and inventoried. They can then be sold or otherwise dealt with as the Minister of Inland Revenue directs. The person from whom the goods were taken is iiKowed one month wherein to give notice to the depart- ment that he intends to claim the goods. They may be re-delivered to the owner, on his furnishing security by bond for double the value in case of condemnation. An information is then filed in Court for the condemnation of the goods, and notice is posted up in the office of the Court, and also in the office of the Collector of Inland Kevenue. The notice remains posted up for one month, and after the expiration of that time, the Court hears and determines the question of condemnation or release. If the security above mentioned is not furnished, the soods may, after the expiration of a month, be sold with- out any formal condemnation. In any action on account of any seizure or entry, if a verdict is found for the claimant, but the Judge cer- tifies that there was probable cause for such seizure or entry, the claimant cannot be allowed his costs of the action. If an action be brought against any person on account of any seizure in which the judgment is given against the defendant, but the Judge certifies that there was probable cause for the seizure, the plaintiff, besides the thing seized or its value, cannot get more than twenty cents damages, nor can he get costs of suit, nor (an the defendant be fined more than ten cents. 3. The next item of revenue in the Dominion to be Postoffiw considered is the Post Office. I do not consider as within ,j c^ (-, my task the details of management of this department. « • '•^''■ Suffice it to say that the Postmaster-General has the sole and exclusive privilege of sending and receiving letters in Canada. This privilege does not cover — 1. Letters sent by a friend on his journey. 2. Letters sent by a messenger on purpose. 3. Commissions from a Court of Justice. ti' i Bii 1) 140 h; Rights of PersovM [PAUT I 4. TiCttjTH nddivsHC'd to a place out of Canada, senf by sea by a pi*ivat(? vchscI. 5. Lciirrs Invvfiill.v brou>?lil into (Canada and posted at the nejireHt poHt ofllee. (5. Lelterw of niercliants and ownerH of veHsels, sen! by vessel or messenger, and deli\;'red without pay or reward. 7. Letters coneerning goods to be sent with th<' goods by conunon carriers without pay or reward. IM'inted books, pamphlets and newspapers need not be sent by post. There are some isolat(>d ])oints of law connected with the post ollice which it is desirable to note, as follows : The Postmaster-t^ieneral nmy take charge of and deliver to the rightful owner any sum of money or other projxM'ty stolen or lost from the nmils and recovered. From the time any letter, packet, chattel or money is deposited in the post office for the purpose of being sent by post, it ceases to be the property of the sender and becomes the ])roj»erty of the person to whom it is addressed, or his legal representatives. The Postmaster (leneral is not liable to any person to whom it is ad- dressed, or his legal rejjresentatives. The Postmaster- General is not liable to any person for the loss of any packet or thing sent by iK)st. No mailable nuitter is, while in the jmst ofllce, or in the custody of any person employed in the post ottice, liable to seizure under legal process against the owner, or against the person or legal representative of the person to whom it is addressed. Mail stages are not exempted from toll, unless specially provided in the pctual charter authorizing the road or bridge over which the mail is carried. Every ferryman must, upon request and without delay, convey over his ferry all persons carrying mails, and the sum to be paid must be fixed by contract; if any ferrym{j,n demands more than the post office authorities or the contractor for carrying the mail are willing to pay, the amount must be fixed by arbitrators, each party naming an arhi trator, and the two arbitrators naming a third; the mr ff°f< . .< liii CM A I'. I, § 2] UcliUlve (Puhlie). 14t 1 dcciHion of an.y two of the nrbitrntorH in bindiiifj;. lh*r Maj(>H(,y'H mail Iiiih u riglit of way ov(>r Iho liighwuyH ill ciiHe of iK'orHHiJy. In (liHcuHHiiifj; Uic Kxal with IIk' adminiHtrativ(> briiiich. 1 i'<> ]u>in(«>(l out (liai to c'acli MiniHtcr iH aHHi^nod a dcparhiicnt, over wliirh lie i)r('Hid<*H an«l for which Im' iH rt'sp(niHibl('. Tlic IhriM* sourc-cH of r('V«'nuo whicli I hiivo jiiHl d(>tiiil('d — (JuHioniN, ExriHc, and tlio I'osl ()fli(M' — aro cavh ansiji^ni'd to a MiniHtcr. Tlic rcniain- iii}? HonrccH of rovcnno may be dinpoHcd of more briolly. 4. Public W<»rl• ill},' exigency. Wlien contrac'tH are let, Hccurity is taken for fliedue jierformaiKteof the work. ToIIh and dues may he impoHcd by order in council, nnd when crm'y-<><'neral of Canada. r». ItailwayH and Canals. Regulations for tlie man- KromRail- iifjciiient of the railways an". source and forni a larj^e part of the public revenue. In rejjard to all jmblic works, railways and f land fi»r IHiblic pni pLiseB. 52 Vict, c 13 (Dom). MiiiiHl*'!'. Tlic cndK' muHt; not, liowovcr, liuvc been strayinp upon any hijifhway within lialf a mile from the track crossinp; or ujMm any olhor person's ])roperty. Fent<'H to ])rote«'t (lie track and farm <'ross inffs are roqnin'd t(» be made anved from liability by any notice, condition or declaration in tiie event of any dannige arising from negligence, omission or defanlt of any ollicer, employee or servant of tlic Minister. No personal liability of any officer, employee or servant is in snch case done away with by any noti<'e. On the other hand, no action can be bronght against any oflicer, employee or servant of the Minister for anythini; done by virtne of his oftice, service or employment nnless within three months after the act is committed, and npon one month's provions notice in writing. The action nnist be tried in the county or district where the cause of action arose. For i)nrposes of expropriation of land for public purposes of the Dominion powers are given to the Minis , ter who is charg(»d with the construction and mainteii ance of the ])nblic work for which the land is required. Agreements with any ])erson competent to contract may be made for the acquiring of the land. If there is no person com]>etent to contract, the Exchequer Court may appoint a guardian or re])resentative. An agreement may be made for the purchase of the land before it is ascertained by actual description or by any plan, and if within one year the description is completed, or plan made, the contract must be carried out even though in the meantime the land may have been transferred 1<> another person. The compensation, when ascertained. W^ WWi\ ^■m €HAI'. I, § 2] Hddfivf f Pvhiir ). u:? stnndH for llic IjithI miuI Hiibjorl 1o 11i«' hmiiic chuinH. In order to linv(- IIh'Hc rljiiiiiH aetilcd in ciisc of doubl lln' Al,v-(J('n(>r5il nniy WW. tin information in tii<' Kx- rlicqurr ('ourt <'!illinfj nj)on the ihtkous intert'Hlcd to iisscrt tlicir clinniH. Tlios<' jn'occedin^'s bar «il elaiiiiH to (lie coniiM'UHalion money, and it is di,stribiiled by tli'- Court aecordin^; to tlie ns. T have mentioned that one of the 1 ),,„,;„)„„ sources of revenue assigned to the Dominion by number'''^'"''"*'- 12 of section 01 of the Dritisli North America Acl is it. «• C. " Kea coast and inland tislieri<'S." The extent of juris diction covered by these words is not j'et settled. Meanwhile the Dominion and the Province of Ontario have both passed Acts relating to the tisl:(M'i«'s. providing for inspection and ciose seasons. Leases for the natural or artificial propagation of fish may also be .'uithorized. Provision has been made for the transfer by the r,.j .ri5Vict. Dominion to the provinces of the foreshore and bed of '^ '^<'^"™)- \m * ' ! !- ^•^. 141 Rights of Persona [part I DoiiiiiiioM ferries. K N. A. Act, Hec. !»1, No. VX \l. kS. C. o. !»7. r.i Viot. c. »iiy- rights. K N. A. A Jt, sec. ill N()8. 22, 2;? Banks. M Vict. c. ai(D<)iii.) R. S. C. c. 124. Govern- ment iSavinfcs Banks. K. S. C. c. 21. rniiadijin wntora. Lands covorod bv wator adjacent to public works bclonginp to the Dominion arc excepted.* 1). Ferries. Hy the BriMsh North America Act jurisdiction over ferries is conferred as follows: The Dominion is charjjed with ferries betw<'en a provinc;' and any British or forei}j;n country or between two jjro- vinces. Ferries within a province are by implication cliarjjed upon the province. Every license of ferry issued by the Dominion must be under the Great SeaK and must be issued by tlie Governor in council. A license can only be issued after public competition, ox cept those between Canada and any other country. In the case of a ferry between Canada and any other coun try, a license may be granted for any period not exceed inj; ten years; this license is liable to cancellation for any violation of the custom laws of Canada or of the foreign country; or for any violations of regulation*, made bj' the Governor in council. In the case of a ferrv b(>tween any two provinces a license may be granted for any period not exceeding five years; the license may be extended for an additional period of five years. The management of the ferries is regulated by the Council. Any person who interferes with the rights of any licensed ferryman is liable to a fine of $20. 10. Patents and Copyrights. The nature of these rights will be explained hereafter. They are here men tioned because, as stated, they are specially as.signed to the Dominion by the British North America Act, and fees from these sources are part of the Consolidated Revenue Fund. 11. Banks and Banking. As will be seen when we consider this subject further on, these institutions are in continual stringent financial relationship with the Dominion Government. For the present, therefore, I only mention this source of revenue, as also license fees and deposits from insurance companies. 12. Government Savings Banks require more special notice here. ♦ As :o Public Stores and marking thereof, see 50-51 Vict. c. 46 (Dom.> m -"fl CHAP. I, § 2] Relative (Puhlic). 145 At Toronto, Montreal, Halifax, St. John, N.IJ., ami "'i Vict other ])Ia(>('8 in the I'rovinccH of Novji Seoiia, New Uruns- (U.in. wick, BriliNh ('olinubia, l»rin<'«' Kdvvanl iHlaml, Manitoba and any other ])rovin('(' which may be formed, saving* banks are oHtabliHluMl. ThcHe banks are under (;. appropriated for throvincial l»lac<'d in diarge of the Treasurer of the pi'ovince, who /''•ji!^'''^""' has also charge of all matters relating to the public f. 20. r(nnniue. Under him are revenue officers who must give security; no person receiving a salary over $1,000 a year can hold any other employment. Each officer must take an oath of oflBce that he will perform the duties of his position without accepting any other remuneration than that paid by the public. All public moneys from what- ever source are paid to the credit of the Treasurer of the province. Any public oflBcer not transmitting accounts is liable to a fine of flOO. The Provincial Trea- surer can call upon any such person to account for and pay over any public moneys received by him; not less '.i^-y-i '\'\\ 148 Rights of Persona [I'ART I R. S. O. c. 21. Provincial Auditor. Siiecinl warrants. Tempo- rary loans. tlian thirty days or more than sixty days' notico must be {^iven by tlie Treasurer. Besides the fine above men- tioned, there is a civil liability for all sums lost. The Lieutenant-(5overnor has power to remit any debt, toll or forfeiture in cases where it may b(? necessary to relax tlie strictness of the law. A tn'asury board, consisting of three members of the Executive Council, may be ap- pointed by the Lieutenant-Governor. An officer called the Provincial Auditor is appointed for the ptirpose of examining the public accounts and reporting thereon to the Legislative Assembly. All checks for public moneys are issued only on the certificate of this officer that there is the legislative authority for this expendi- ture. In case of emerg<'ncy tlu' Lieutenant-Governor in council may order a special warrant to be prepared, to be signed by the Lieutenant-Governor, for the amount required; in case of refusal by the Provincial Auditor to certify a check issued by the Provincial Treasurer, the Treasury Board are to be judges of the sufficiency of the Auditor's objection. The Provincial Auditor must prepare and deliver to th(» Treasurer the public accounts, which are annually laid before the Legislature; they include the period from the 1st of January to the .31st of December in each year, and this period constitutes the financial year. The Lieutenant-Governor in council may, in case of exigency, arising from failure of the revenue or unforeseen causes, direct the Treasurer to effect any needed temporary loan to be charged on the Consolidated Revenue Fund; these loans cannot exceed the amount of the deficiency in the Consolidated Revenue Fund to meet charges thereon. All special matters of this kind must be specially reported by the Provincial Auditor to the Legislative Assembly. Besides the appropriation ac- counts of the committees of the Legislature, the Provin- cial Auditor must audit the accounts of all receipts of revenue forming the Consolidated Revenue Fund of the province; the accounts current with the several banks and financial agents of the province; the accounts relat- ing to the issue or redemption of loans, and any other public accounts directed to be examined by the Treasury Board. Stamps are used in lieu of fees and charges, w , ''11 CHAP. I, § 2] Mil five (Puhlic). 149 which form part of the Consolidated Revenue Fund and payable upon le}?al proeeedingH. No money is to be paid to or received by any Court, or any ottlcer of any Court for such fees. Any matter or proceeding not statmw on duly stamped is absolutely void, unless afterwards cecdingM. stamped by lefive of the Court. All stamps must be h. h. o. cancelled when used; and any person wlio fails to*^--- obliterate a stamp is liable to a fine not exceedinj; |2(>; in default of payment, to be imprisoned for a |)eriod not exceedinj? two months. These are the rules relating to the management of the provincial revenue. I now turn to its sources. 1. The I»ublic Lands of the province are under theHouif.f.s()f management of the Department of Crown Lands, which J4'^l'J,Xr' is j)resided over by the Commissioner of Crown Lands. The Lieutenant-Governor in council may fix the price per acre of the publii^ lands. Licenses of o<'cupa- Licenso nf tiou may be issued by the Commissloi-cM* of ('i()\vn"*-'^'"i'**'<^" Lands to any person who has purchased, or is permitted to occupy, or has been entrusted with the care of any public land; or who has received or been located on any public lands as a free grant. On receiving this license of occupation, the licensee may take posses- sion and occupy the land subject to conditions of the license. A register is kept in the Crown Lands OlTice for registering the particulars of any assignment made by the original nominee, or his heir, or legal represen- tative, or subsequent assignee. All assignees take pri- ority in order of registration. On application for a patent by the heir, assignee or devis«?e of the original nominee, the Commissioner of Crown Lands may inquire into the matter, and if satisfied, may cause a patent to issue. The heir, devisee, and assignee commission, which I will mention later on, has also jurisdiction to order the issue of patents. In case of fraud or error, licenses of occupation may be cancelled. If necessary, an order can be got from the County Judge of the county, directing possession to be given up to the Commissioner of Crown Lands. If a patent has been issued to the wrong party, or contains any clerical error, or wrong description, the defective patent may be cancelled and a wm 1;)() lily Ids of Persona [I'AllT I :|| ■iii il i lili :S,i lUctifyinjf correct one issued. When? grants for leltei'M patent patfiits. j^^^^^^ iHHiKHl for the same hind inconsistenl with each other, or in cases of inccmsistent sales, tlie Conunissioner of Crown Lands may adjust (he matter, and, if necessary, assign otlier land; but no claim can be entertained uu less it is preferred within Ave years from the discovery of the error. If the mistake arose by reason of false survey or error in the books of tlie Crown Lands Department, and there is any deticiency in quantity, then the Commissioner of Crown Lands may issue a grant for other land or refund a proportionate sum of the purchase money. No claim of this kind can be entertained unless made within five years from tin; date of the patent, nor unless the deficiency is ecpial to one-tenth of the whole quantity described. Public lands for which no patent has issued, but which have been sold, leased or located as free grants, or appropriated to any person, or which are under license of occupation, are liable to assessment from the date of the sale or ai)propriation. The Com- missioner of Crown Lauds must, in the month of Febru- ary of every year, send to the treasurer of every county a list of all the lands within the county dealt with by the Crown during the preceding jear. The Provincial Secretary must once in every three months funiisli to the registrar of every registry division a statement containing a list of all patents of lands, and also copies of all plans or maps within the registry division. All notices relating to Crown lands may be given to the Commissioner of Crown Lmt'Is; from time to time lists of the public lands foi- ,ale in (Mitaiio may be made out and advertised i ascretion '>f the Com- missioner. The Lieutenant .ernor in ( incil may authorize sales or, appropriaii.tiis of land covered with water in harbours, rivers or other nvigable waters in Ontario, but shall not interfere with the use of any har bour as a harbour or with navigation. The Lieutenam Governor in council may appropriate any public lands considered suitable for settlement and cultivation, and not being mineral lands or pine timber lands, as free grants to actual settlers. These free grants are c«ur- pose of clearing. The patents of all free grant lands contain a reservation of all ]»ine trees, wliich remain the proi)erty of the Crown. Neither the locatee nor any one claiming under him can alienate otherwise than by devise, or mortgage or .pledge any land, or any right or any interest in it, before the issue of the patent. No alienation otherwise than by devise, and no mortgage or pledge of the land, or any right or interest in it after the issue of the patent within twenty years from the date of the location, and during the lifetime of the wife of the locatee, is valid, unless it is by deed in which the wife of the locatee is one of the grantors with her lina- band, and also executes the deed. On the death of the locatee, all his interest in the land descends to his widow f ^ I' t. 152 Rights of Persons [PAllT I Iffi W' 1 f ) k.1 4 1 - 1 M . to cut timber. R. S. O. c. 23. in lieu of dower, but she may elect to have her dower ill the land if she chooses. No free grant is in any event liable to the satisfaction of any debt or liability con- tracted or incurred by the 'ocatce, his widow, heirs, or devise, before tlie issue oi the patent, but after tlie issue of the patent, and wh'ie the land is owned by the loca- tee, or his widow, h"irs or devise, the land durini? the twenty years next after the date of the location is ex- empt from attachment, levy under execution or sale for l)aymont of debts; it is not liable to the satisfaction of any nlebt or liability during that period, except a debt secured by a valid mortgage or pledge of the land, made subsequent to the issue of tlie patent. The Commissioner of Crown Lands may grant li- censes to cut timber on the ungranted lands of the Crown. No license can be granted for a longer period than twelve months. The license vests in the holder all rights of property wliatsoever in all trees, timber and lumber, cut within the Mniits of the license during this term, wliether thi'y are cut by authority of tlie Iioldei' of the license, or by any other person witli or without his consent; and license holders may seize all trees, tim- ber or lumber and prosecute or sue trespassers. The Government road allowance may be included in the license. If a township council passes a by-law for pre- serving or selling the timber or trees on the Govern- ment road allr V ance, then the corporation of the town- ship receives two per cent, of the dues received by the Crown for the timber cut within the township. Every person who gets a license must make a return of the number and kinds of treeo cut; all timber cut under licenses is liable to the payment of the Crown dues, no matter in whose hands it may have come, and whether manufactured or 'not. Timber seized for non-payment of dues, after two months may be sold. Persons cutting timber on Crown lands without authority may be fined three dollars for each tree cut or carried away; the per- son cutting must prove authority. If timber cut without authrrity has been mixed up with other timber, the whole of the timber mixed is liable to seizure. All timber seized is deemed to be condemned, unless the per- ^T '■• : /' ,'^l CHAP. I, § 2] Relative (Public). 163 won from whom it was seizod pives notice of claim with- in (me month from the date of the seizure; failing; notice, the seizure is reported to the (Commissioner of Crown I.sinds, who may order the sale of the timber after a notice of at least thirty days. No person can enter upon or use for any purpos<» TrespaHscs A\ liatever any Crown lands without luiving a license ianciH. from the Lieutenant-Governor under his hand and seal. k. s. o. Commissioners may be appointed to examine into tres- '^- ^'• pusses, and may give notice to quit, and warrants of re- moval; if a i)erson removed resumes n "lawful occupa- tion, commissioners may commit him to ^aol for a term H!>+ exceeding twenty days, and he may be ordered to pay a tine to the Crown not exceeding |80. The commis- sioners are entitled to the same protection as justices <)t the peace for any act done by them in the execution <»i' their otflce 2. The Mining Lands of the province are under the .^^inillf,' siipervision of ihe Commissioner of Crown Lands. Xo reservation of gold, silver, iron, copi)er or other mines il^'j) '' or minerals is inserted in any patent from the Crown granting lands sold as mining lands. Any person may ( xplore for mines or minerals on any Crown lands sur- veyed or unsurveyed and not located. Crown lands sup- posed to contain mines or minerals may be sold as min- ing lands, or when situated within a mining division, uiay be worked as mining claims. Lands when so sold nmst be sold in blocks called mining locations. Mining locations are restricted in dimensions to eighty chains in length by forty chains in width, containing three himdred and twenty acres; or forty chains square, con- tiiining one hundred and sixty acres, or forty chains in length by twenty chains in width, containing eighty acres, or twenty chains in length by twenty chains in width, containing forty acres. When a mining location borders upon a lake or river a road allowance of one? (hain wide is reserved along the margin; the width of the location must front on this road allowanct'. After survey every mining location must consist of a half, quarter, eighth or sixteenth of a section, so as to be not less than forty acres. There is a reservation i V ^i 1^' n'' 154 Rirvii- tioiiiil |iiiu' timlH'i-. Milling clainiM. for roiuls of (Ivo per cent, of i\w Iniul {jniiitrd. Mining locjilioiis in nTisufV(\v<'(l (crritory iiinst be Hmv«'V«' (^rown l^ands Dcpaiiniont. Tlu>i'(> is a reservation in patents of niinin}; lands of all i>ine timber. Tile pi'ovince may be divided info mining; divi- sions, and for every minin};; division an inspector may be appoint(Ml, The inspector is ex olVicio a jnstice of the peac<'; he has tlu' power to settle snmmarily all dispnies belwe<'n licensees as to the expense or foi'feit- nres of mining claims. Any party applying,' to the Director of the Ibireau of Mines may obtain (m |»ayment of the fee of |r> a mininfj; license; Ihis license is in force for one year, anet alonj; a vein or lode in the proportion of one hundred and thirty-two additional feet in Ien}?th for every addi- tional miner, not to exceed one thousand throe hun- dred and twenty feet in lenf?th altojfether. If un- worked for the s[)ace of three months, the claim is forfeited; or it' after the expiration of three months it remains unworked for the space of lifleen days. No pt rson <'an be considered the discoverer of a new mim unless the place of the allepnl discovery is distant at least three miles from the nearest known mine. A party wall of at least li'fteen f«'et thick must be h ft between every mininj; claim on Crown lands; this wall must bo used in common as a mode of access to the stream whert' one exists, and must not be obstructed. If a miuiuf? claim cannot be worked in conse«iuence of access of water, the inspector may assifjn another mininj; clam; if the lirst claim is not worked within fifteen days after- wards, it is then forfeited. If '!:'!* ~"™1 ( iiAi'. r, § 2] lidutlve (Public.) 155 Special in'oviHioiiH nro wvmW jis lo K • ■ (if iniiH'H. luiiM's. No boy uiulcr (ho af?<' of ilfloon can bo om- j»|(MC(l uiMloijjroiiiMl; no j^irl ne day. A rt'^islei* of all boys musi be kepi. Whero here is a shaft oi* inclined plane of any kind, nnd an iiijiine, no person can be allowed in cliari;*' of tlie en^jinc? unless he is a man at least tw<'nty years of a;;e. If the eiijj;ine is woi"k<'d by an animal, the |)erson driving' tin; animal must not bo nnd«'r sixteen years of aj;''. No \\aj;es <'an be paid to persons enipIoye w.vRCH jf >vaj?(>s of »'ninlov('('s of conhvK'lors on public works arc ttnipioyctts. ' ... sccnrcd to tlicni. Tn<' coninussioncr is onipowcn'd 1o ri'scrvo part of tlio contract i)rice to cover employees' claims. Prcsorvr For tlu* preservation of tlie i)eace and for the protec- peiico 11(111 tion of the i)nblic in the nei}j;hl)orhood of public works, works. Avhere larjje bodies of laborers are congregated iind em- ])loyed, the Lieutenant-(^ioveni.u' may by pioclamation declare that the Act respecting riols near ]Miblic works shall be enforced; all weapons must then be given n\> before owners to a justice of the |)eace. Every weapon not given up is liable to be aei/-ed; any person kee])inii or concealing weapons may be fined not less than $4(1 nor more than ,fl()(). Justices of the peace mjiy issue search warrants where necessary. No intoxi Kvery township mnnicipalily which has undertaken drainage works un• and in tlu* Hanie nnuincr uh where a debt is dut* fi'oni one bubjt'ct to anotlu'i". 7. FcrricH. Undci' Ilu» Provincial Act I'clatinjj; to I'n.yincial Ferries, fj^rantw must be issued bv the Lieutenant-dover nor under the (Ireat Seal, aft<'r <()nii)etition by adver h. s o. tisement. No ri^ht of ferry can last longer than seven *^- ^^^" years. The limit of extent is one mile and a half on each side of the point where the ferry is usually kept. I.icenses may be granted to nmnicipalities where the two sides of the ferry are in dill'erent counties. In a 1 such cases the accommodation must be provided for by sitam ferry, Private persons are allowed to keep their boats at a ferry, but must not employ these boats for {lain. Interference with ferriajfe rights is punishable by fine. 8. Estreats. All fines, issues, amerciaments and EHtroats. forfeited recojfnizances, imposed by or before the High j. ^ <>, C^ourt of Justice, anj' Court of Oyer and Terminer or ^ ^>i- (leneral Claol Delivery, or before any Court of Assize, iinist, within twenty-one days after the adjournment of the Court, b(? entered on a roll by the deputy clerk of the Crown or clerk of assize. One roll is then tians- inittcd by the clerk to the '-ejfistrai- of the Queen's Bench Division of the Ili^h Court; llie oilier, with a writ of execution and capias, to the sheritl" of the county for which the Court was held. This v.rit. it' unexecuted, remains in force for one year and im* lon.i;er. Tiie writ is an authority to the slieritV to proceed lo levy tlie fin;* on the jjoods or lands of the persons nanu'd in the wi'il, <»i' for takiuf^ into custody tlie persons themselves, if snflicient {foods or lands cannot be found out of wliich the required sums can be made. In the same way fines incurred at Ceneral Sessions are, within twenty-one 'lays after the adjournment of the Court, entered on a roll by the clerk of the peace. One roll is dejmsited in liis office, and the other is sent to the sheriff. Except in cases of persons bound by recojjuizance for their ap- pearance to prosecute or {ifive evidence, in case of default whereby a recognizance has become forfeited, if the K.n.- 11 ■I If ||v:iv. *';* 162 RUfhtH of Pn'ftons [I'AUT I pif 1 p'*i j; mX m)% ■■■ '' j':- Nv' .i 1 L tLL Fines and ])enaltU'8. K. S. O. c. 8!>. cnusc of al)H(>iu>(> iw iiuulc known to tlu^ Court in whicli the party was bound to appear, the Court may forbear to order the recojinizance to bo ('Htrcaled, In all cases of fines inipoHed for the non-att<>ndance of a juror or eon stable, or public- ofTieer bound to attend at the Court, the Judjjfe may, in like nninner, make an order that any sum forfeited or fine inipos«'d shall not be levied. For this purpose the clerk, b«'fore sendin^i; to the sheriff the roll with the writ of execution and capias, as above mentioned, must submit the roll to the Judge. The lat- ter may thereupon make a minute of the persons against whom no proceedings are to be taken. These persons will then be free from the operation of the proceeding. On any writ issued by the sheritf against lands, under the authority of an estreat, he must advertise the lands in the same manner as any execution in other eases. No sale can take place in less than twelve months from the time the writ comes to the hands of the sheriff. A jfcrson who is arrested by the sherilf may give security for his appearance, and in that case the sheritf may dis charge the person out of custody. If he does not appear in pursuance of his undertaking, the Court may then issue a writ of execution and capias against the surely of the person bound. The sheritf to whom any writ is directed under the Act must on his return state? on the back of the writ what he has done in execution of the writ; a copy of the writ and return is then transmitted to the treasurer of the province, and all moneys are pnifl over to him. 9, Fines and Penalties. In cases where, by the law of England, any portion of a fine in payable for the support of the poor, or to any parochial or other i)urpose inapplicable to Ontario, then the fine or penalty, or the part thus appro priated, must be i)aid to the treasurer of tlie county or city where the conviction has taken place. Every other fine or penalty, and the proceeds of every forfeitun* ini posed or given to the Crown, must, if no other provision is made for it, be paid to the treasurer of the province and form part of the Consolidated Revenue Fund; in like manner, as above stated, by Dominion legislation. CHAP. I, § 2] Ucbilive (Puibiic). 16;) whnu'vcr no otlirr provision iH nnulc by the law of Ciin iida for the appropriation of any line, penalty or forfeit are, it bclonjfH to the Crown for tlie piiblir usch of ('an a«la, and forinH part of tlic Tonsolidated Kevcnuc Fund of Canada. All pcnalticH or lines may be remitted by a Conrt or l{ beneficial owncrsliip passes on llie owner's deatli to tliat oilier person. (5) Any property j)assinf,' by wttlenient, whether made for vainablo consideration or not. (6) Any annnity purcliased or provided by a deceased person to tlie extent of the beneficial interest accrninK or arising in any way on the death of the deceased. An estate, the valne of wliich, after payment of all debts and expenses of administration, does not exceed ^10,0(MK is not liable to this duty; nor is {'2) property fjiven, d«*vise(l oi* be(|ne{ithed for relifjfions. charitable, or educational pnrpos<'s: nor is (,'{) property l)as8inf; Jinder a will, intestacy or otherwise for the bene tit of a father, mother, }iusl)an(l, wife, child, pi'aiul- child, dau}i:hter-iu-law or son-in-law of the deceased, where the ajjsi'efjate value of the property does not exceed |l()(),Ot>t>. The succession duty which is.^har};ed is over and above the fees ])rovided by the Surro;;ate Courts Act. The rates fixed by the statute are as fol- lows : (1) When the property exceeds ^100,000 and goes to or for the benefit of father, mother, husband, wife, child, grandchild, or other lineal descendant, daughter- in-law or sonin-la.w, f2.5t) for every $100 of value. (2) When such pro]»erty is over .|200,000 the duty is J!i!5 for every $100 of value. ('?) When the value of the pi-operty exceeds $10,000 whatever amount over that sum passes to the grand- father or grandmother or any other lineal ancestor of the deceased, except the father and mother, or to any l)rother or sister of the deceased or their descendants, or to an uncle or aunt of the deceased or their descend- ants, $5 for every $100. (4) Where the property is over $10,000 and goes to persons other than those just mentioned, the duty is $10 for every $100. (5) If the whole property is under $200 then it is exempt from duty. If an executor, in order to escape CHAP. I, § 2] lielafU'c ( Public ). 136 IcRRoy duty in Ontario, di8trii)ut(?H flip property out- side of tiio province lie i)e(ome8 personally lialjle for whatever the province lost. ThJH enactment haH thrown u|K)n executorH and «f'ite- adininiHtratorH Hpecial ol)lijj;ation.s. Ilefore the JHsue n.!,',nn,>,'ate'i'iniinis- registrar a statement under oath, showing; (a) a full, "'"'*"'^^' itemi/,<'d inventory of all the pniperty of the deceaa«'d person and its market value; (h) the several persons to wluMH it will i)ass under the will or intestacy, and tin* decree of relationship in which they stand to tlu' de- ceased. The executor or administrator musl also, before the issue of lettei's probate oi- administration, deliver to the siirrojjate re<;istrar a bond in a penal sum eiiual to ten per cent, of the sworn value of the ])roperly liable to succession duty, executed by himself and two sureties, to secure the due payment of any duty to which the property may be found liable. If tlu' treasurer of the province is not satistied with the value tlnis sworn to, the Kiirropate rejjistrar of the county mtist, at th<' instance of th<' Provincial Treasurer, direct in writinjjf tliat the sheiilT of the county must make a valuation and {ippraise the property. The aheriflf must thereupon, on notice to the executors and adniinistiators, appraise tlu; estate at its fair market value, and report to the surro- gate repstrar, who must, on receiving tlie sherill's report, assess in liis turn the cash value of the estate andi the duty to which it is liable. There is an ai»peal to the Surrof the county from the :i{)praisement by the registrar. If the estate ex- ceeds in value f 10,000, a further appeal lies to a Judge of the High Court and from him to the Court of Appeal. Where there has been a devise or bequest, or descent of property liable to succession duty which takes ( ffect on some future event, the duty is not payable, nor does interest begin to run upon it until the time of tht* actual possession of the estate. The duty is assessed upon the value of the estate when the right of pos-sis Time for sion accrues. Except as above, duties are l>ayable ^f duties, at the death of the deceased, or within eight( en months afterwards. If paid within eigliteen months no interest >*^raT n 11: ^< 'l 1| lit' r ■r ■'■■' ■ i ' ■ 166 I'B 'IS- mf Rights of Persons [part is charged upon the duty; but, if not so paid, interest at the rate of six per cent, must be paid, and the duties, Avith the interest, remain a lien upon tlie property. An order may be obtained from tlie Surrogate eludge for the ex- tension of time for the payment oi tlie duty. An admin- istrator or executor must deduct from any legacy the amount of duty before payment over to the person who is entitled. Executors have a power of sale ove. so much of the property of the deceased as will enable them to pay this succession duty. The pcrsim lo receive the money is the Treasurer of the province. When debts are proved against the estate of a person after the pay- ment of legacies, or a distribution of the property from which a debt has been deducted, or upon which it has been paid, and a refiind is nuide by the legatee, devisee, heir or next of kin, the Treasurer will refund the duty paid to him. The Surrogate Judge must, if \^ appears to him that any duty accruing under the AiOva Scotia and New Brunswick would be re- duced from twelve to ten. When Manitoba and British Columbia were admitted they were given representation in the Senate. Imperial legislation was obtained in 188G ratifying these measures, which were really not justified by the B. N. A. .^oL The North-West Terri- tories have also received representation in the Senate, and the present number of Senators is eighty-one, dis- tributed as follows : Ontario. 24 ; Quebec, 24; Nova Scotia, 10; New Jirunswick, 10; P. E. Island, 4; Mani- t(»ba, 4; British Columbia, 8; Territories, 2. with pro- mise of a third. A power has been reserved to the Governor-General of recommending the appointment of three or six additional Senators, one or two fi'om each division. So far it has never been exercised. It is greatly to be hoped that the four rei)resentatives from Newfoundland will before long take the places reserved for them as Senators of Canada. To be a Senator a person must have the following (|ualirtcations: lie must be thirty years of age; he must be a British subject by Thf B. N. A. Act, sues. 24, 3L>. 2:l. w msmm MMH 16cS RitjIitH of rcrsous [I'AUT I p^ tn H 'UJ 1^^ Ij 1 Il.id. 29, »(». 31. Ibiit. ;i9. H. s. r. O. U,H. IS I'.. N. A. Act, stH's. *js, 3:>, :u;. llinisr of Legisla- tive Assembly l)ir(li or njitni'iiIi/..Mlion; lie iiuihI own hinds williin his provinr*' 1o the iiinount of four Ihousjuid lh('»' woiMh four liionsand (hdhirs over iiiul above liis (h'lUs; lie must i'eHieakei* has a vote in all ('ases. Vhiu the votes are eciual the dcH'ision is in the negative. 3. The House of Commons. Wei now conu' to th<' • thii'd constituent branch of Parliament in the Domin- ion, the House of Commons, the second in the province, the Lejjislative Assenibly. Tin* Commons consist of all inhabitants of the Domln ion, ('Very one of whom has :t voice in Parliament, eithei* personally, or by his representatives. The Lej'islativc AssiMubly of Ontario rei)resents all the residents of that province. In a free state, every lUi'.n who is sujtposed a free aji'ent ou}j;ht to be in s'>oni.' nu'asure his own jTovernor: and therefore su<'h a branch, at least cf the legislative powt r, should reside in the whole body of the l)eople; and this power, when the territories of the state are small, and its ciMzeus easily known, should be exer- cised by +he peoi)l_e m their a};gr«'gate or collective capacity. Ibit this will be highly inconvenient when the public territory is extended to any considerable de gree, and the number of citizens is increased. In so large a state as ours it is, therefar{% very wisely con- trived thai the people should do that by their repre- sentatives, chosen by a numb«'r of separate distvicts, wherein all the voters are. or easily may be distin- guished. With national progress representation in- r of ParliamcnI. Tlie Lf'fjfishitivo A nslv of Ontario at tirNt conHiHtcd of »'iiclilv-two monibcrH. ^ , ,,. ^ i>2 V let. II now consisis of nincly-fotir mnnbcrs. c li. « 4. The basis of n'prcsontation in tin* llonsc of C'oni nions is laid «lown by the It, X. A. Act as follows — tlic orifjfinal number of nicndM-rs was, as slated, one Inindrcd jiiid t'i;i;Iily-one: Ontario, Hi; (Quebec, (IH; Nova Scotia, !!»; New Hrunswick, 10. A readjustment of seats was then provided for, dependent on tbe results of the decen- nial census of the Dominion, taking (iuel)ec as the niiil with sixty II v<» members, and j^ivinj; the other provinces a numbei- of menibei's proportionate to tlieir population as compare..s.-)1 l.S,!II(.-) :{(i,247 Unknown. ;i,()3r),0'24 l'tS,H!»l 440,:-.7-' .T^l •_';!;5 I,:c.i»,()ii7 1, '.)'.'( 1, >:i2 t)2,L(i(l 4'.),4..'./ .ji>,44(> 4,:m,8io 10!»,07.S NdVii Sfotiii Now Hniiisvviuk (^lll'llfC 4r)(),;v.)(i Oiit;iiii) 2,ii4,:«i Maiiitolin. ]."iL',r.(M; Urilisli (!i)liimbia Tcrritorii'M !J.S,17.'{ !W,1)(>7 Total 4,8a;«,23!) MK.MBKHS. IViiKf Edward Island (Admitted Ist July, 1873). .Niiva ScDtia Xi'W hnm.-iwick 1871. 21 l(i ();■> Olitaiid ; SS Manitoba (Admitted l.'>il. July, 1870) ! 4 I5ritisii n.iliinihia ( AM i :,; Total. 20« 2L> 213 mmmmtm 170 Ri;l/i(s of IVrstnin [IWHT I The sliifliii}; of iMipiiliilioii iitid iMrwcr in from KjisI (o W.sl. I*- ^'- A. T\u' Dominion H of Commons ronlinurH for live 50, sr>. ,\«'Jirs. iiiul Ili<> Ondii'io liCf^isliilivc AHscmbly fonr .vcjirs l{ s. (>. fvoux llic liflyflflli day af(ei- (he dales of (he wrils foi* election, and no lonj^cr. The Assembly may be dlssolv«'d by (he Lien(enan( (iovernor at a.iv lime. If a }X«'neral eleedon is held al su<'li (inie of (he year 1ha( !ln' eleelions for (he l)is(rie(s of Alfjoniii \Ves( and Aljioma 10as( do not (ake place a( (he same (ime as (he odiei* eleelions. and if (hei'e is a meelint; of (he Lej^islalnre before (ln' eleelions for (hose .iislriels, (he meinbers-eleot for (he o(her ideetoral divisions, and the membeis elee((>d for (hose (wo dis(ri('(s at (he previous eleition, eons(i(n(ea lawfnl Assembly; in lha( ease, tin- old members for (he (wo l>is(rie(s of Alpoma repn'seni those distriels nnlil Ihe new t'leelion has taken place, and the return received by (he cleik of (hi- Crown in (^hano(M*y. In this case, (he «bira(ion of the new Assembly is four yeai's fr«Mn the (hiy on whit (i the As sembly was summoned to met't for the despatch )f business. Is 1 ill Hi id ? int.. A ? H. N. A. There must be a session of Parliament and the I'ro Jo, so.' ' vincial Legislatiire respectively once at least in every year, so that twelve months shall not intervene between the last sittinj; of each body in one session and its lirst sittlnjj: in the next. Member- As no propei'ty qualification is required, the chitf iiowv (f niatter to consider is that of disqualilication. Subject, t'dmiiioiis liowever, to the disqualitications to be next mentioned. \\'\\VV 1 roni EiiHl •H for t'lvt' our >'«'ai's •(> is I'oin- iit uinriy luUHt t'on (he di'iiiiH"' ;Mn\)ly inny dny iiftt'i- >iij.t'r. 'nu' ut (Jovrrunr t suHt tinx' ill 11m> HiUlK' , ui<'('tin<^- of .jiHtr'n'lH, 111" CllAI'. I, ^ -1 liflillirr ( I'iihlir). 171 u> pivviouH lilt casi'. U»<' la ro])Vos(>i\t iiUou place, i- Crown of tlu' nt'^v liv l> Uio As di'spaU'U »t and the I'l') nist in t'vciy v'.Mio bet\vt'<'i> I and its first vd, tin' <'l'i*'^ on. Subjt'^f- it mentioned. every suhjeel of llic rcalin Ih rlij^ildc of conimon ri^lil : llioii^li llior*' art' iiiHlaiiccM \vlicr( in jM-rHoiiH in |tar(i< iilar cii-cnniMlanecs liavo forfritcd that rnninioii ri^^lit, and |iii\(' Im'oi! Men. |\'., tlial no ap- |treiili<'e or oilier man of the law should l»e elected kiii}j;lit of the shire therein: in return for which our law hooks and historians hav<' branded this I'arliamenI with i!i<> name (d' " I'ai liamentum indoctnm," or the lack l<>arii iii;,^ I'arliaiiH'nl ; and Sir f'ldward Toke oliscrves, with some si>leen, that there was never* a ^ood law made tliei'eat. ll'MI llill)^ I'lii'iiii- IlHMt,. I'^u" the Dominion I'epreseiitation the followinjx j>er- sons ar<' not eli;,dlde for election as members of the Ihuise of ('(tmmons, ncu- <'an they sit or vote in it: in) .\iiy [lersoti a<'ce|»lin{,' or holdinf; any ollice, commissimi (»r em|>loyment, pei'iiianenl or tem|»oi'ary, in the servicf* of the rotit at the nomination of the Crown, or of thv (Jovernor. or of any head of the department in the Ciovernment <»f Ontario, whether the protit is, or is not, payal)l«' out of the i»ubli( funds, can be a nienilx'i' of the Legislativ<' Assembly; but any i)i'rson may be a men)ber «)f tlie I'^xecutive Council, or hold any of lln' following ottices, namely: Attorn* y-Oeneral, Secretai'v and Kegistrar v»f the Provint'c, Treasui-er, Commissiontr of Crown Lauds. Minister of Agriculture, Commis si«>ner of Publi* Works or Ministei- ol' Kduration, and ii elected, m; y sii and voti' as a member. There is no Hen. " IV c eaker, the Deputy Speaker, if pre- sent, must take the chair. The rights of members of the Legislative Assembly as declared by statute of the province are: (1) Freedom of speech. (2) Freedom from arrest in civil actions. (.'i) Freedom from serving as jurors. The two latter riglits are confined to the period of the session and twenty days before and after. The i)rohibitions laid on members are: (1) They are not allowed to accept or receive, either directly or indii'ectly, any fee, compensation or reward in any man- ner connected with the preparation or proposal of any measure before the House. This prohibition extends to any barrister or 'solicitor w^ho is a partner of a member. (2) They shall not be guilty of corrupt prac tices, as explained later on, when we come to consider the election law. Any violation of the first prohibition causes the seat of the offender to be vacated, as if he were naturally dead. The House has the rights and privileges of a Court of Record to punish breaches of privilege or contempt of Court in many matters. They CMAT. I. § 2] Relative (Public). 177 nvf enumerated ns follows : (1) Assaults upon mem- bers. (2) Intimidation. i'M Hrihery or attemptinj; to bribe. (4) Interference with otticers of the Assembly. (.") Tamperinj; with witnesses before the Assembly. ((')) fiivin^ false evidence before it. (7) Disobedience to stimmonses to ai>i>ear before it. (S) Presenliuff false documents. (9) Falsifying; records of the TTouse. (10) Brin^injc any civil action ajjainst a member, or (11) Arresting: him in a civil action. In all these cases the offender may be punished by the House by imprison- ment durinp the session in which the offence is com- mitted, besides any other penalty or j)unishment to which he is liable in law. There is no appeal from a jmlpnent of the House in these cases. All reports of proceedings or votes ordered by the House to be printed are protected. No man who prints or publishes them can be made liable to any action or prosecution for anythint; contained in them. If sued on account of anything: connected with them, the production of the order of the House directing their I»nblication is a complete defence. The Legislative Assembly may at all times com mand and compel the attendance before the Assem- bly, or before any committee, of any person and all papers or things considered necessary. The Speaker niiiy issue his warrant or subpoena, requiring the attend- ance of any person, and ordering the production of any- thing that may be required. No person is liable in dam- ages or otherwise for any act done under the authority of the Legislative Assembly and within its legal power, or under or by virtue of any warrant issued under its authority, and this warrant may command the aid and assistance of all sheriffs, bailiffs, constables and others, and every high Court may administer the oath as mjuired. Members are entitled to a sessional indem- nity, being fG for each day's discussion, if the session does not extend beyond thirty days; if the session does extend beyond thirty days, then a sessional allowance of such a sum as may from time to time be appropriated for that purpose.* * Sessional indemnities are also paid to members of the Senate and House of Commons. K.B.— 12 Protection for print- ing of reiM)rtH. Warrants of the House. R. S. C. f. 11,8.25. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I l^m |2.5 £ hi 110 M 1.25 ju 1.6 4 6" ► Photographic Sciences Corporation 33 WIST MAIN STMfT WnSTIt.N.Y. M5M (716) S72-4S03 Si ^ Iji 178 Inde|ien- deuce of members •if hvsfia- lative Aasembly. R. S. O. c. 11. Resi jura- tion. Rights of Persons [part I See as to disclaimer of a Beat, 58 Vict, o. 4, Bec8. 6 to 12. S Bofore n member is permitted to take the oatb an such, he must file with the clerk of the House an affi davit, duly sworn before the clerk, that except in respect of his personal expenses, he has not made before, or dur- ing, or after the election, any payment, advance, loan, or deposit, for the purpose of the election, otherwise than through his agent or agents, and that he will not injikr any such advance, A member of the Legislative Assem bly may resign his seat before the first meeting of tln' Assembly after his election. He may address to anv two members-elect of the Assembly a declaration of his intention, made In writing under his hand and seal be fore two witnesses These two members, on receiving tlu' declaration, mu -Idress their warrant, under their hands and seals, te the clerk of the Crown in Chancery for the issue of a n vrit for the election of a member in the place of the . *' . her resigning, and the writ must be issued aocordixi.^iy. The clerk of the House is ex officio clerk of the Gr^wn in Chancery. No seat can be resigned while the election is being lawfully contested, nor until after the expiration of twenty-one days from the date of the return to the clerk of the Crown in Chan eery. When an election is declared void the Speaker or clerk issues his warrant for an election to fill tin* vacancy. No writ can be issued under the foregoinj; circumstances during the session of the Legislative Assembly. A member may also res^^n his seat by giving in his place notice of his intention to resign ; the notice must be entered by the clerk on the journals of the Assembly, and the Speaker then must Issue a war rant to the clerk of the Crown in Chancery for the issue of a new writ. A member may also give notice in writ- ing to the Speaker of his intention to resign ; his declar ation being under his hand and seal, before two wit nesses, and the Speaker, on receiving that declaration, may address his warrant to the clerk of the Crown in Chancery for the issue of a new writ. If a vacancy hap pens by the death of a member, or by his accepting any office, commission or employment, or by his becoming n party to any contract with the province, the Speaker. on being informed of the vacancy by a member of the Assembly, or by notice in writing under the hands and seals of two members, acts as above mentioned when an election is declared void. CHAP. I, § 2] Relative (P^Mic). 179 The first step taken by Parliament or by the Leeis-Kie«ti"""' Sin»ttk6r. lative Assembly, on their first assembling after a general election, is to elect one of their members to be Speaker, s*-** The Speaker must preside at all meetings of the House, ^^.l "g^s:, In case of the absence of a Speaker for a period of forty- ref« rnng eight consecutive hours, the House may take another of 44 1»» 4i>. its members to act as Speaker. Should the Speaker find it r. s. c. necessary, from illness or other cause, to leave the chair"- ^*' during any part of the sittings on any day, he may call ^•^- ^• upon any member to take the chair and act as Speaker dtiring tlu reniaind«'r of the day; unless the Spe.nker himself resumes the chair before the close of the sittirgs for that day. The member so called upon must take the cliair and act as Speaker. Whenever n Speaker from illness cannot be present at the meeting of the Assembly on any day, then in the House of Commons the Deputy Speaker takes his place. In the Provincial House in such case the Assembly may elect a member to take the chair and proceed as Speaker for that day. All Acts passed, and everything done while such member is in the chair, is valid as if done while the Speaker himself was presiding. Twenty members inclusive of the Speaker form a quorum. Questions are decided by a majority of the votes. The Speaker has only a casting vote. Next, with regard to the elections of members of the Elections I.egislatures of the Dominion and Provinces, we may ob- b,.r8!*"' Herve that herein consists the exercise of the deraocrati- cal part of our constitution: for in a democracy thei*e can be no exercise of sovereignty but by suffrage, which is the declaration of the people's will. In all democra- cies, therefore, it is of the utmost importance to regulate by whom, and in what manner, the suffrages are to be given. In Canada, where the people do not debate in ii collective body, but by representation, the exercise of this sovereignty consists in the choice of representatives. The laws have, therefore, very strictly guarded against usurpation or abuse of this power by many salutary pr<)- visions ; which may be reduced to these points : I. Electoral districts. 2. The qualifications of the electorg. :{. The proceedings at elections. 4. Proceedings when elections are contested. M 180 Riffhta of Per/tons [part I li m Klectnral erty or income qnaliflcation Ih now required. Every nuile per- Who son of the full aj?e of twenty-one years, a subject of Her"'*^ *"*** Majesty by birth or naturalization, and not disqualified^''^'*'*- as above mentioniKl or prohibited from voting by law, is entitled, if enroll(>d on the voters* list, the preparation of which will Im» next described, to vote at elections for the Legislative Assembly; but such person must have resided within the province for th<' nine months next preceding the time tixed for beginning to make the assessment roll in which he is entitled to be entered as a person (pialifled to vote, or must have resided within the province for twelve months next preceding the time up to which a complaint may be made to the County .Judge under the V^oters' Lists Act, or under the Election Act, to insert his name in the list. He must also have been in good faith it the time so fixed a resident of, and domiciled in, the municipality un the list of which he is entered, and at the time of tendering his vote must have been a resident of, and domiciled within, the electoral district, and must have resided in that district continuously from the time tixed for beginning to make the roll or for making his complaint. Temporary absence in the prosecution of a person's occupation, as a lumberman, mariner or fisher- man, or as a student in an institution of learning in the Dominion of Canada, does not disqualify. No scholar or student at any school, university or other institution of leaniing, can be entered as a voter unless he has no other place of residence entitling him to vote. No per- son can b«' entered on the list who at the time of mark- ing, or entering, or voting, is a person in a gaol or prison undergoing punishment for a criminal offence, or who is a patient in a lunatic asylum, or who is maintained as an inmate receiving charitable 8upi)ort in the municipal * Women may vote at tnunioipal eleotioua. Such elections are dis- cussed later on. \ i t.-: i ' T, 1 ll^*l«»i '^^^p'- 'f ■ " it j!l| 182 IndiiuiB. Rights of Persons [I'AHT VoterH ill diEtrictM. poorhouse, or hoiifio of industry, or in any charitahh' in- Htitution receiving aid from tin* province. Indiana, if enfranchisod, can vot(> lil«> otlicr perHons witliout having the pr per qualiflcation. UncnfranchiBed IndianH of wiiolc or part Indian blood, not rcHidin^ among Indiana or on an Indian reservo, muttt, in lieu of lethal enfranchiHenu'nt, have the followinf; property qnaliflcationH in order to entitle them to vote. Thew qualifieationM are : Tin* person must have be<'n at the time of the election resi- dent of, and domiciled within, the electoral district for which he claims to vote; that at the time of the final re >'ision and correction of the assessnu^nt roll he must have been entered on that roll for real projjerty as follows : In cities and towns, f200; in incorporated villages and townships, flOO. Such Indians can vote and also participate in the annuities, interest, moneys or rents of a tribe of Midians. If there is no assessment roll the only unenf nchised Indians who can vote are those who do not share in Indian annuities and do not live on an Indian reserve. Unenfranchised Indians of whole or part Indian blood, resicling among Indians on an Indian rencrve, shall not be entitled to vote. In the electoral districts of Algoma East, Algonia West, East Victoria, North Hastings, North Renfrew, South Renfrew, Muslioka, Nipissing and Parry Sound, the following persons are entitled to vote : Every male person of the full age of twenty-one years, being a subject of Her Majesty by birth or naturalization and being not otherwise di^qualitied, who is at tile time of the election a resident of and donii ciled within the electoral district for which he claims to vote, and actually and bona tide owner of real «'state in the electoral district of the value of ^200 or upwards, or who at the tin'ie of the election is a resident house- holder of the place, and has been an owner or liouse- holder for the six months next preceding the »'lection. The land on which the person rlaini» must have bt'en granted or patented by the frown, and a person who is a mere lodger or boarder in a house is not a resident householder. CHAP. I, § 2] Relative (Public). 1H3 The effect of these provisiong is, that except in the isolated cases above uieutioned, property (lualiflcatiou is uo longer required for an elector. Voters' Lists.* The rlerli of each municipality must, Voter*' immediately after the tinal revision and correction of '*'^'*' the assessment roll in every year, make a correct alpha- betical list in three parts of all persons of the full age of twenty-one years, and British subjects by birth ^'2 Vict. or naliinilization, and appearing by the assessment roll to be voters of the munimbly. The second part contains the names of all such {mtsous and of all widows and un- married women of full age, and subjects as aforesaid, app<'aring on the assessment roll to be entitled to vote in the municipality at municipal elections only, and not at ilections for memlMMs of Vm Legislative Assembly. The third partf eontains the names in like order of all (»ther nuile persons and subjects as aforesaid appearing by the roll to be entitled to vote at elections for mem- bers of the Legislative Assembly only, and not at muni- cipal elections. The name of the same person must not be entered more than once in any part. If a munici- pality is divided into polling sub-divisions the list must be for each of the sub-divisions. In the voters' list the capacity in which any person is en- titled to vote must appear opposite his name. The clerk uf a township municipality in making out the list niust insiM't in it a schedule containing the name, nuin- bcrcd consecutively, of every post office which by the asseHsinent roll appears to be, or within the knowledge llli«tN of ill citi*'H. Dutii'Muf clerk ill •id of itiw«>Nii(ir. R'ujhtH of Pei'Monn ll'AItT I Duties I if AMMfRMIIt'llt C(>ni- luiitfiioncr. Ill cilicH it iH dii'iM'tnl tliul (>vi>r.v cit.v tiMMCMHor iiiiimI, by nin'fiil niqnir.v at vvvry lioiiw wUlilii Hii' liiiiilH fo* wliirli li<> iH iiMHrHHoi*, aH('<>rtaiii iih far aH li«> can tlic nuiucH of all porHoiiM ovit (lie a^c of t wont your years roHidiii); ill tli<> Iioiihc, who arc cntitlt'd l»y law to vot** at tlio oliM'tion to tlu> li<>KiHlntivt> AHH<'iiihly for tli«> doc toral (liHtriot in wnicli miicIi lionH«' \h Hitiiato. Ilo iimihI outor tlio iiaiiioH of thoHo iM'tHons in IiIm aHH(>HHinont roll, and <>V(M'y porMon Ih roqiiirod, nndor a poiiaity of twonty dollarM, to lUiHwor trnly all qnoHtionH put to him by tlh* aMHOHMor. In ordor to aHHiHt tli«' aHMOHHoi'H in thoir work, the municipal olork Ih dir«'otod to dolivor to ovory aHHOH 8or ono of tlio printed ooph'H of tho thou liiHt roviHod votoru' liMt, and uIho an alphabotical llHt of tho male porHouH ovor twonty-ono yoan* of ago who havo diod in tho oity diiriuK the proeodiii); year, ho far au ho Ih al>l(>. In order to enable the elork to deliv«'r the liHt of doathr. above referred to, the «'Ierk of every city, before making his Homi annual return to the l{oKiHtrar-(]oiieral on tii<- forniH supplied to him as tho division registrar, must keep a list of tho r it is his duty antical list of all persons appearing by the assossmont roll entitled (o bo placed on tho list, and tho name of each person is mini berod upon the roll. Tho clerk must also deliver on' copy to the assessment commiHsionor. In ordor to afford an opportunity of having added to this list, with out tho necessity of a formal iippeal, names of persons who are qualitied voters but whose names do not appoar on the list, the asst'ssiuont commissioner must ret'oivc applications from persons requiring their uanios to bo added, public notice being given of tho time when sucii applications will be hoard. If tho assossmont com- missioner adds no name or omits no name ho nuisl at once report that fact. If he adds names to the original list or strikes off names, which ho has power to do, ho must prepare two lists, setting forth in alphabetical order the names added and the names struck off. These ^ '■•■ll nwv. I. § 2] lielalive (Public). 186 lintN nr<' to Im> in h«>(h, niio for cnrli polling; Htih diviHion in IIh> city. TIk'ho liHtH iiiiihI Im> ]i(trM(<'«l bv tli<' <»ii(li of llir nHH<>HHin<>ii( roiiiiiiiHHioiii'r. liiiiiHMlialrl.v iif(<>r rc- <«'iviiif; tliiH rrporl (lie rlrrk iiiiiHt riiiiNc ropicH to Im> |)rint(Ml !iihI iiiuh( poHt tliciii up in Hie Hitnir wn.v um Mio oriKinnI liH> in n>4|nir«Ml l>,v luw to be poHt«'(l. Noliro niiiHt iiIho bo inHortcd in tlio iiowHpuporH in (lio city. The iilphahcHral liHt nnuio )>y (lio ricrii on nTcivin^ tlic jiHHoHHor'H roll, with tlio uiblitionH iind oniiHHioiiH and rorrortionH H4>t forth in tlio aHM'NKniont r.oniniiHHioncr*H report, an' to In* (1c>(>ni(>(l top'tluM' a liHt of the votcPH, HtibjtM't to rcviHion by tlu> (Nninty •! 11(1^6. T)u> tinio r<»r jfivinK notir(> of any nmiplalnt to tlHMHt('d jf,,j^^"'|"'^ up in hiH ofTiro tho aHHOHNniont coniniiHHiom'r'H n^port "■^■'"* nnd tin' liHtH rcforrod to in it. Tho voti'PH' lint inuHt bo H'viwd, rorrortcd and (•(•rtiJi«»d by tlio .ludKc within two niontliH ufti'r tlio ricrk firHt ]M)HtH np in Iuh oflico the n>4H('HHnu>nt roniniiHHioncrV ropiirt. After the votors' lifit huH bcM'n finally roviwd, <'orn'diod. The certifltrate of the KeKiHtrar-Oeneral or the diviHion rej^intrar iH Hutticient evidence of the deatli, coupled witli faictH of identity. Immediately after the clerk Iuih made hiH alphabetical Dintrihu- lint, and in citieH within forty dayH, and in other muni- [,'^,'"4^ | cipalitieH within thirty dayH after the final revinion and vot«ni'iiMtH correction of the aHneHHnient roll, the clerk niUHt caus<' at least two hundred <'opi<'H of the lint to be printed in pamphlet form if poHHible. lie nniHt keei» one <'oj)y p08t<'d up in hiH ofli<'e; he nmnt Hend three copien to each Judge of the ('ounty ('onrt of the «'ounty, and two copies to tin? memberH of the municipal council, th«? trea- surer, the sherifV, the clerk of the p«-ace, every poHt- inaater and every hend manter or mintreHH of a public or private school in the municipality; he muHt also Hend toil copies to each member of the House of Commons, to each member of the LegiHlative ABsembly, in both cases for that electoral district — also to every candidate V ^u 4;Ki^ 186 Rights of Persons [part I . I K«>viHiun of vutnni' liatH. for whom voU'n wore kIvcii ut the Inat oh'ction, and to the reeve of the municipality. Tliew? copleH of tlie list muHt be certified to by the elerl{. The HheritT miiHt poHt up hiH <'opy in tlie court liouHe; the clerit of tlie peace muHt post up hi(t in hiH oflice; tlie head niUHter or miH- treHH niUHt poHt up tlieirH on tlie door of the hcIiooI hoiiHe, and every poMtmaster niuHt po8t up one of hiH notices in hiH otTlce. Notice of the tranHmiHuion of all of these copieH niuHt be f^iven in tlu^ newHpaperH. The lint as made out by the clerk Ih Hubje* > to revi- Hlon by the County «ludf?e at tlie instaiice of any voter or perHoii entitled to be a voter in the municipality for which the lint in made, or in the electoral dintrict in whi(*h the municipality Ih Hituate, on tli(> ground of namea of voterH bein}:; omitted from the lint, or being wrongly ntated in it, or of nainen of pernooH Iteing in- serted in the list who are not entitled to be voters. On the revision, the assessment roll is not conclusive evi- dence; the matter Ih determined by the Judge, whose decision in regard to tin* right of any person to vote, or as to the inserti<»n or omission of any name, is linal. The Judge himself may, without a previ(»UH notice (»f appeal or complaint, on an application made by any person named in the list, correct any mistake which shall be proved to him to have been made in its compilation. Evi- dence may be produced and given before th»' Judge that any person has no qualification or no sulYicient qualifica- tion to entitle him to be a voter, and the Judge may strike the name of the person off the roll. Any person making complaint must, within thirty days after the clerk of the municipality ^aH ]K)sted up a list in his oftice, and in cities witliin thirty days after the asKessment commis- sioner has made the report 1 liave lu'fore described, give notice in writing of his complaint and intention to apply to the Judge. Notice of the holding of tlie Court must be given at least ten days before the sittings in soiiu* newspaper published in or near the locality. The Judgy must so arrange and fix the sittings of the (.'ourt thnr the complaints shall be heard an^l determined, and tlie list finally revised, corrected and certified within two months of the last day of making complaint. If no com- t (;HAP. I. § 2] Relative (Public), 187 plaint r(>8[)tM'tiiifi; the liHt in rveoivcd by the clerk within the thirty dayK above mentioned, the clerk ninHl apply tu the .ludf^e to certify three copit>M of the liHt as l)einK the reviHed liat of voters for the municipality; the Judge iDUHt retain one of the certitled copies, and transmit one of them to the clerk of the peace, and another of them to the clerk of the municipality. If coniplaintH have been made, then immediately after tht? iiut has been tlnally revised and corrected, the Judge must make a statement in triplicate, setting out the clianges which have be<'n made. This statement and the t'orrected copies of the list must be prepared by the clerk of the munici- IMility, or else the Judge certittes the corrected copies which he holds as being the finally revised list. This Anally revised list is then certified also in triplicate, one copy being kept by the Judge, one copy being sent to the clerk of the peace and another to the clerk of the municipality. The voters' list, when certified to by the County Judge, is the final and conclusive evidence of the right of every person named in it to vote on any election, except (1) persons guilty of corrupt practices, or (2) per- sons who, after the list is certified, become nonresident, and for that reason disentitled to vote, and (3) persons who are disqualified to vote. The Court to be held by the Judge must be provided for by the municipality, and the Judge has the sam • powers in this Court as he has in ordinary judicial pro feedings. If an appellant, who is entitled to appeal, abandons an appeal begun, then the Judge may allow any other person to intervene and prosecute the appeal. If errors are found in the voters' list, and it appears to the Judge that the assessor was blamable for any of the errors, the Judge must ord(*r the assessor to pay the cost occasioned by the mistake; in case of errors for which the clerk was to blame, the clerk must be charged with the costs; in case of <'rrors of the Court of Kevi- sion, the municipality, in the case of cities as well as any other municipalities, must jiay the costs, subject to any claim which the municipality may have against guilty parties, or the Judge may order the assessor, clerk or municipality to pay the costs if any party fails I 4 lint. Court i)t' K»'vi«iciii I if VOtfTM' I istH. 186 Right ff of Pflvfionn [I'AIIT I i i Coliiiiral)lo tranMf«T« Rcijistra- tion of Manhood SuffragH voters in citi<^8. 87 Viot. o. 4. to i'<'rov(>r them from any otluT party iuiiiumI and onl(M'i>X4'<>|i( in frivoloiiH or vexatiouH .']>p(>alH, or in <'aH(>H of l>ad faitli. In tli(>H(> caneH the .hidgi' may order the afipeliant or complainant to pay eoH(8 not ex reeding doable the amount he would otherwiHe be liable for. Tin' payment of eowtM may be enforced by execu- tion a>!ainHt f^oodH and chattelH. ('um(>8 may be Rtat<'d for (he opinion of the Oourt of Appeal, and aftiM* argu- ment, th(> opinion of the Court muMt be ^iven and forth with publiHhed in the Ontario (}azette, and a copy Kent to every ('ounty (.ourt Judge. Any voter may also r« que«t nn opinion from the (Jourt of Appeal, but the (>ourt may retjuire a deposit of money to rec4)ver the expenseH of counM>l. If a perHon not UMrtesHed, or not HutUciently a88(>8Med, 18 found entitled to be a voter at the munici- pal elections, the municipality- becomes entitled to re cover taxes from him as if he had been assessed, and the Judge nmy so order. No person can make, execute, accept or become a .party to any lease, deed or other instrument, or become a party to any verbal agreemi^nt wlu'reby a colourable interest in any land, houne, cm- tenement, is conferred in order to qualify a person to be a voter. If any person nmkes such an arrangement he incurs a penalty of flOO, and any person who induces or attempts to induce another to commit this offence incurs the like penalty. Penalties are provided for tlie failure of the clerk of the municipality to perform his duties, and for the prevention of the improper insertion of names on the roll. For the purpose of registering manhood suffrage and other voters in cities, special provisions have bci-n made. The substance of these provisions is as follows : Every nmle person of the age of twenty-one years, a sub ject of Her Majesty by birth or naturalization, and not disqualified under the General Election Law, and not otherwise prohibited by law from voting, is entitled to be entered on the list of manhood suffrage voters for the polling sub-division in which he resides. Sucli CHAP. I, § 2) lifldtirr ( l*nhliv). 1M9 nt or 1)1' UC«'K porBoii iniiHt, liowt'vtT, hnvr rcHitl* d within t!if |»rovliue 'or tw4'lv<> iiioiitlirt iu>xt piMMcdiiiK die date on whirh tli«> fIrHt Hitting "f tl; • I't'^iHtrarH of inainliood HiilTni^fc wiiH lu'ld for the prrparalion of th<' list of manhood satTrap' vottTH. Surh |mm'hoii» nniNt. nrrondlv. hav«' bt'i'ii in \hhh\ faitli on tli<> hist nicniioncd d-itr and for thriM' inonthH ]ir('((>din}r. a n'Hidcnt of and d(»nii(*ilo(l Kegi>trar.s. Nfitifioa- tion tu Boarrl of Election to take place. county- in which the city is situated, but within the Province of Ontario in the necessary prosecution of lils business or calling, and has not been absent more than thirty days prior to the first of the four days of the sit- ting of the registrars, tlien ai)pIication may be made on his behalf by some person who knows the absentee. Lists of all absentees are kept, and supplementary sit- tings are held to provide for the registration of such absentees. A board is constituted in each city for making up lists of persons entitled to be registered aa manhood suffrage voters at elections for the Legislative Assembly. This board is called the Board of ManliocKl Suffrage Registrars. In county towns the board 3on- sists of the County Judge, the police magistrate and the clerk of the County Court. If one of them is unable to act the other two will appoint a substitute. In the cities of Toronto, Hamilton, Ottawa and London, cer tain officials are made ex officio members of the board. The Lieutenant-Governor in Council appoints one of the members of the board to b«» chairman of the board, and the board at their first meeting appoint a permanent chairman, who holds oflBce during the pleasure of the board. The city must provide necessary accommod.i- tion in which the registrations take place, but this regis tration oflBce must not be a tavern or place of public entertainment, and there must be fi-ee access for everjr person desiring to be registered. When a city is divided into two or more electoral districts, two of the ex oflicio members are assigned to each of the electoral districts of the city as constituted for electoral purposes. Sub divisions of districts are made for convenience of regis 1 ration. Immediately on the issue of a proclamation dissolving the Legislative Assembly, then immediately after said date, or in the case of a bye-election, immt'di ately after the issue of the writ of election, the clerk of the Legislative Assembly, in his capacity of clerk of the Crown in Chancery, must notify the cluiir man of the board of the dissolution or of the issue of the writ. When a new registration is required, the chairman must call the board together, and the board must forthwith take the necessary proceedings for the registration of manhood suffrage voters. Every rejxis- M CHAP. I. § 2] Relative (Public). 191 i m trav must appoint a reijistrar'H clerk to assist him in preparing a list of tlie persons entitled to vote, and one of the registrar's clerks is appointed clerk of the board. The registrars hold four sittings for the registration of |['t"'^^"^ persons claiming to be entitled to vote, the first of the for regiH- sittings being on the sixth day after the dissolution, or in case of a bye-election on the sixth day after the date of the writ. The sittings must be held on consecutive days excepting Sunday, and shall continue from nine in Ihe morning until ten at niglit, with two hours' intermis- sion. The time from half-past S(»ven to half-past eight o'clock in the evening is, as far as possible, to be set apart for the registration of the votes of workingraen. The registrar or registrar's clerk under his direction registers in the several pollina: sub-division books, which are furnished to them, the names and residences, as are stated in their oaths respectively, of all persons apply- ing to be registered who take the oath required, and who reside in the respective sub-divisions. If it appears to the registrar from the answers of the applicant to the questions put to him, and after hearing any evidence then produced that the applicant is not entitled to be registered as a voter, the registrar shall not enter the name. All names are classed in alphabetical order. If the applicant refuses to take the oath, or refuses, or is unable to give the information requisite to enable the registrar to fill up the particulars necessary in respect of the application, the applicant cannot be registered either at that sitting or any subseciuent sitting. An <'ntry is made of the fact that the applicant refused to swear or was unable to give particulars, and an alplia- betical list of all such persons is kept by the registrar and delivered with the registration lists. A record is kept of the work of each of the four days, and is certi- fied to by the registrar. If the registrar refuses to register an applicant who has taken or who is willing; Board of to take the oath, the applicant may appeal, after giving ^I'l"'*'- twenty-four hours' notice in writing to the registrar and to the Board of Appeal. This Board of Appeal is con- stituted by the Board of Revision. Evid-^nce may be taken under 6ath before the Board of Ap;jeal, and if 192 Rights of Persons [I'AHT I III thoy decide timt th«» applicant Ih entitled to vote, they grant him a c«'rtificate to that elTi-ct. This ccHiflcate entitles a person to vote on presentation to the d<'piitv- returning oflH«'er. For purposes of preservation of tho peace each r(>};iHtrar is invested with the same ))o\verK as a justice of the peace in the province, and may ap- IK)int special constables to assist him. Any candidate is entitled to appoint two electors as ajjents to represent him at any rejfiHtrars' sittinp;. Any elector may act as agent for a 4*andidate without producing any special authority in writing. Any political organization may :ilso appoint in o-riting two electors as agents to repre- sent them at amy registration sitting. Any elector is entitled to he present as spe«'tatorat a registrars' sitting, but not more than twelve persons other than the officers and agents are entitled to be present at the sanu' time, and no p(>rson can ask any question of an applicant for n^istration excj'pt the agent of a candidate, and all questions must be put through the registrar or by his permission. If the registrar bt'comes unable to act, then the registrar's clerk acts as registnir, and in turn ap- points another person to act as registrar's clerk. If by riot, or for any other reason, the sitting is not <'ommenced on a proper day or interrupted, it must be resumed on the following day until the rcjgistrar's office has been op<»n without interruption for forty-four hours in all, but the registrations must be completed at least three tio™and *'".^*' before the polling day. As soon as the lists are delivery «>f completed the registrar delivers to the clerk of the peace lists the books containinr; the list certified to by him. He at the same time delivers the books containing the oaths of the persons registered. The clerk of the peace re- tains these books until they are replaced by another registration, when they may be destroyed, unless the Attorney-General directs their preservation for a future period. In the case pf a bye-election, the writ for which is dated more than a year subsequent to the polling date of the previous election, the proceedings for registration directed in the case of a general election are to be taken, unless the Clerk of the Crown in Chancery on the issue of the writ notifies the chairman of the Board of Regis- OHAI'. I, § 2] lifdativc (Public). 108 trillion llmt n now rcKlKlnttuMi in not r(M|ninMl. Tliis notinralion nm.v Ix- nnnU' if IIm' Premier of Hie Kx«'v('-t'l<'»Hi>n iH licld Icsh tlian a .yrar aftrr tin' n-gix- 1 1 at ion, in» new n>;<:iHti'ation iH rciinircd. Tliin lant nn-n tioiH'd notification nnint i»r niap|)OHition. In <'iti<'H of ov«'r one linndrcd tlionHaml inliabitantH V(,t4r« (at prcHcnt Toronto a!on<' satinflcH this n*quiHit<*), wlion- ''.'*^'* "' ever a bv law in pasHcd for talvini; tin* aHHcsHniont before <>vor Ihc :iOtli S«>pt<'nd)or and fixing? prior and W'parato dates i„i,;ji,i for the return and final revinion of the aHHOHsnient ''""^'*- rcdls. aecordinjx to wardH or other Hub-divinionH of the •';'\^'Viliiin fifteen and print and distrilmte the alpliab(>ti<'al list of voters. The time for making; complaints an to errors or omissions is within seven days after the publication of the notice. If no complaint is re<'eived the «'lerk applies to the County .Indjje to certify three copies. The Judge retains one copy, sends anotlier to the clerk of tlie p(»ace and the third to the clerk of the municipality. If there are com|daints the Judge must dispose of tliem within ten days after tlie last day for making complaints. All lists must be revised by the first of Ih'cember. After preparing, pi'inting and posting up the last of these lists, the clerk must jmblish a notice calling for any further complaint. These complaints niust be made within fourteen days from this notice. The Judge then holds a last sitting, when he finally adjusts the list. The clerk produces the assessment roll and the «Tudge enters in it his corrections. A sej)arate list of these corrections is also made up and forwarded to the clerk of the peace. These lists, thus finally revised, K.n.— 13 'V. : 4 \ ^J 194 Rights of Persons [PAUT I Mode of conduct- ing elec- tions. 55 Vict. 0.3. corrected and certified, are the voters' lists within the meaning; of the Voters' Lists and Election Acts, and also the Municipal Act. These proceedinjjs complete the preliminary steps held necessary before the actual taking of the votes. This next stej) I will now proceed to describe. As to the mode of election and proceedings at elec- tions, all municipalities :>re divided into polling sub- divisions containing two hundred qualified voters in each; these polling sub-divisions are used both for the election of members of the Legislative Assembly and for municipal elections. When we come to the municipal system of Ontario we shall find that the electoral prin- ciple pervades that whole system as well as that of representation in the Legislative Assembly; and that the municipal electoral system is founded on that of the Legislative Assembly. A polling sub-division need not be divided if it contains more than two hundred voters, so long as it does not contain more than three hundred; if it contains more than three hundred, it must be re- divided. All sub-divisions are based on the last revised and corrected assessment roll. Any mistakes in sub- division will be corrected by the Judge of the County Court; all sub-divisions are numbered. Returning For the purpose of securing regularity in elections, an official called the returning officer is appointed, to whom a writ of election is issued by the Provincial Secretary. All election writs are ad- dressed to the sheriff or the registrar of the county ; if there is no sheriff or registrar, then to such person as the Lieutenant-Governor may appoint. No member of the Executive Council, or of the Parliament of the Dominion, or of the Legislative Assembly, can be appointed or act as returning officer; nor can any clergynvan, priest or ecclesiastic, or Judge, or persons who have served in the last preceding session of the Legislative Assembly. No medical man or miller, or postmaster, or person over sixty years of age, or any person who has previously served as returning officer, can be compelled to act. Tff^l CHAP. I, 15 '1] Reldtive (Public). 195 When a new Lej^Hlative AsHenibly is called, and a Kl't^tion general election is to be held for the election of its mem- beiH, the Lien tenant-Governor in council must fix the day for holding the elections, and also the day on which the polling is to take place, where a poll is demanded and granted. The day to be fixed must be not more than twenty days nor less than sixteen days ftoni th<' date of the writs of election; and the day for holdinj; the polls not more than eight nor less than six days after the date for holding the election. For every gen- eral election the elections for all electoral districts must take place throughout the province on the same day. The polling at all elections where polls have been demanded and granted must also take place throughout the province on one and the same day, except in the Districts of Algoma West and Algoma East; in the two latter cases, the nomiqation or polling must be held at some time between the 20th of May and the ."iOtli of November. On the receipt of a writ of election, the I'reiimi- returning officer must endorse upon it the day of its ,"*tfert of receipt; he must then by proclamation declare the place, returning day and hour on which the election will be held. This proclamation must be posted up at least «Mght clear days before the date fixed for holding the electicm, which day is called the nomination day. The place of election is to be in the public place most central and most con- venient for the great body of electors. The pro- clamation must also declare the day on which, if a poll be demanded and granted, the poll is to be opened. The returning officer must also fix one polling place for each sub-division into which the municipality is sub-divided. The building in which the poll is held must not be a tavern or place of public entertainment, and there must be free access to the poll for every elector. Every poll- ing place must be furnished with compartments, in which the voters can mark their votes screened from observation. He must also procure as many ballot boxes as there are polling sub-divisions; these boxes must be provided with a lock and key, and so constructed that the ballot paper can be put into the box and not withdrawn unless the box is unlocked. The returning 196 Rights of Permnti [part I * i1 ^ 'I Nuinina- tion. Poll. officer must also take an oath that he will act without partiality, fear, favor or affection. He must also appoint an election clerk, who must take a similar oath. In case of inability of the returning; officer to perform his duties, the election clerk must act as his substitute. On the day of nomination every returninf; officer must make a proclamation to the electors, requiring them to keep silence while the writ of election is being read, and also his commission as returning officer where a com- mission has been necessary. If at a nomination more than one candidate is pro- posed, then the returning officer must grant a poll for taking and recording the votes of the electors ; in case of refusal, the election is null, and the returning officer incurs a penalty of $1,000 ; if only one candi date is nominated, and the electors then present agree in the choice to be made, the returning officer, at the expiration of one hour, closes the election and declares the person chosen duly elected. On the nomination furnished for each polling place. On the day of polling the voting commences at nine oNlock in the torenoon and must finish at live in the afternoon, and the votes are given by ballot. Any voter in a city or town is entitled to absent himself from any service or employ- ment in which he is engaged or employed, from noon in the day time until two o'clock in th<» afternoon, for the purpose of voting. If required by the person in whose employment the voter is engaged, he must at some time during the same or the next week, employ himself for one hour more than the ordinary day's work, in order to make up for the lost time. For the purpose of taking the votes at an election, Deputy the returning officer must ai)point for each ])olling sub- 0^^"'"^ division a deputy returning officer ; this officer must appoint and hold the poll according to law at the time and place tixed, and at the poll take and record in the voters' list the necessary particulars as to voters. Every deputy returning officer must take an oath similar to that of the returning officer. In townships the town- ship clerk is deputy returning officer for that subdivi- sion in which the town hall is situate; if there be no town hall, then for the sub-division in which the first meeting of the council of the municipality was held. Where a poll has been granted, the returning officer must have printed such a number of ballot papers as will be sufficient for the ])nrp()s('s of election; these ballot papers are bound up in books foi' each polling sub divi- sion, with counterfoils, s(» that, wh<'u the ballot papers ai'c d«'tached, the counterfoils remain. Eadi ballot Bill"t papei' shows the names of tlie candidates, arranged Mlj)habetieally, if jtossilde in ink of ditferent colours. Every ballot paper and counterft»il must specify the name of the electoral distri«t for which it is to be used, and the ballot paper and counterfoil have the same numbers respectively. Ballot papers are also made «ip. ! M pajierf. 198 Rights of Person f< [PAllT m on whioli are printed tho words " tendered ballot l»a|)erH " ; tlieir purpoHes will be explained later on. The depnty n*tnrninj; oflicer ninpt also be furnished by the returninj; ottieer with the necessary materials for voters to mark their ballot papers; the ballot boxes must be delivered two days at least before the polling day 1o the deputy returning ottlcers. The returninj; o»!it'er must also have prepared printed directions for the {{uidance of the voters in voting, and these direc- tions must be given, at least ten to each deputy return- ing ofticer; these printed directions must be posted up out8id<» the polling places. The returning oflicer must also obtain from the clerk of the municipality and deliver to every deputy returning oiBcer a certificate of the day when the assessment roll was returned by the assessor, and of the dav when the roll was flnnllv revised and cor- rected. The object of this certificate is that it will fur- nish evidence to the deputy returning officer as to th»' inserting in the oath the date of the return or final revision of the assessment roll, as required. The first iuid third parts* of the last list of voters certified by the Judge, and delivered or transmitted to the clerk of the peace under the Voters' Lists Act, as I bare already explained, before the date of the writ of election, is the list to be used at an election to the Legis- lative Assembly. No person can be admitted to vote unless his name appears on this list. If a person whose name is not entered on tlie copy of the voters' list delivered to the returning ofticer or deputy returning ofticer, claims that he ought to be allowed to vote, on tak ing an oath to the effect that his name ought to appear, Tendtred he shall be entitled to mark a tendered ballot paper, as paper. >vill be jtresently more fully explained. The returning officer must also procure from the clerk of the peace .i copy of the proper list of voters for every polling sub- division, and deliver to each deputy returning officer his list for his sub-division. On receiving this copy the deputy returning officer must prefix a number to every name; these numbers may be chosen arbitrarily by the deputy returning officer, but he must take all necessary precaution for concealing from air persons, except the * Except iu cities. See pagea 183, 1!)2, 194. CHAP. I, § 2] Relative (Public). 199 poll clerk, these numberH. Each deputj' retuniinjj officer has a poll clerk to nssist hint; the poll clerk must take an oath similar to that of the returning officer. The poll clerk must aid and assist the deputy returning officer; and. in case of inability of the deputy returning officer to act, the ]w\\ clerk takes his place, and in turn appoints another poll clerk. A person may vote at any polling sub-division in which his name appears, but no ])erson can vote at more than one polling place, under a penalty of $200. Any deputy returning officer or poll clerk, if an elector, is en- titled to vot at the polling place where he is sta- tioned during the polling day, instead of his own sub- division. A list is kept of every person voting in this way, which is called the " outside voters' list." Imme- diately before the commencement of the poll the deputy returning officer must show to the persons present the ballot box, so that they may see that it is empty; he must then lock the box, seal it, and place the box in his view for the receipt of the ballot papers, and keep it locked and sealed. When a person presents himself to vote the deputy returning officer, after satisfying him- self that the name of the person is on the list, must record the residence and legal addition of the voter. If the voter is sworn, it must appear on the list; if objected to, this fact must appear. If the person refuses to be sworn, a note must be made of the fact. No jK^rson who refuses to take the oath or affirmation of qualifi- cation can receive a ballot paper or be admitted to vote; if received, the vote is null and void. Wlien these pre- liminaries are finished, the deputj' returning officer must stamp or sign his name or initials on the back of the ballot paper and on the counterfoil, with no other figure or mark. The ballot paper is then detached from the counterfoil and delivered to the voter. The counterfoil is retained in the book by the deputy returning officer, who marks upon it the number prefixed to the name of the person upon the voters' list, and oppo- site the name of the person in the list a mark is placed to show that he has received a ballot paper, but not showing the particular ballot paper handed over. Any Pull clerk. Outside voters' list Proceed- ing!) at polling. i**;;; ■1 ■ If T '■-"' f 200 Rights of Persons [PAHT I ! ' in Mode of voting. Declinud buUot paper. Tendered voters' list person offering to vote mny be required to either Hwear or affirm that he is entitled to do so. If a dt-piity returning officer l^nows of or suspects any fraud, he must himself tender the oath to the person attempting it. When a voter receives the ballot paper he proceeds int«> one of the compartments, and nmrlaIlot paptM* Ih dealt with in the name nmiiner aH that jiist deHeiibed. If a ballot paper han been Hpoiled inad- vertently, then the deputy returning ottlcer nms! furnish another ballot paper, and write tipon the spoiled om; the word *' eaneelled," anil preserve it. No person is entitled or permitted to be present in a poUinjr place, except the ofticers, cnndidales, clerks or agents author- ized to attend, and such voters as are actually enj^ajjed in votin;;. The deputy returning ottici •• may, for the purpose of preventing obstruction, summer, to his assist- jince any police constable or police officer. After the close of the poll the deputy returninj; oillcer, in the presence of the poll clerk and of such of the candidates or their agents as may happen to be prewnt, opens the ballot box and counts the votes. The various classes of ballot papers are separated. All improperly marked ballot papers are not counted, but objectiims are num- bered. A written statement is then made up by the deputy returning officer, giving in words, as well as figures, the number of votes given for each candidate and the number of ballot papers rejected and not counted, distributed under their sevei-al heads; this statement must be signed by the deputy returning offi- cer, the poll clerk, and such of tJie candidates or their agents as may wish to sign the statement. Every deputy returning officer must, at the close of the poll, certify on the voters' list the total numl)er of per.-ons who have voted at his polling place, and furnisli, on request, a certificate of the number of votes given for each candidate, and the number of rejected ballot papers. On the comidetion of the count of tlie votes the deputy returning olticer makes \\\) iutf» separate packages, sealed up, all the ballot i)apers and various lists; these packets are delivered personally to the re- turning officer, acc(>mi)anied by a stateinent showing the number of ballot papeis, accounting for tli^ni all. No scrutiny of the votes is to be giantcd, either by the returning officer or by the de])nty returning officei*. After the election, the deputy i-eturning officer and tin' poll clerk make an oath, verifying the voters' list used C'linctilled buUotH. Close of |)iillinf;. il 1 j I 'Ik ii >- 202 ItitflitH of Pi'i'Monn [I'AIIT 1 < II 1 :. ■ iit (Ik* <>l«>rlioii. The ballot Ii(>x<'h an> (h'livi'rcd to tlic rU'i-k of Ww iiniiiiripiililv, iiihI k«>p( for riitnn* tiHc. TIh> rrtiiniiiiK olllror, iif((>i' lie Iiuh I'imtIvimI (In* hiillot ptipd's aii |ilar«>aii«l linn' naiiK'il from lilt' IniHliii^H for thiH piirpoHr wlini ^ranliiip a poll, iH^i.iiinK op*'ii Hi«' Htat<>ni(>ii(H. Ah hooii as \iv \u\h aHct^rtaiuiMl the r(>Hal( of Hio poll, iu> dtMlnrrH io b«' rl«M(«>il |Im> caiHli date having (li<' IiIkIu'hI iiiiiiilH'r of voIch. If an <>(|ualll,v of votcH Ih found to cxiHl, and a caHtinK voir in r<> rannot in an.v othiT <'aHi' he entitled to vote at thai cU'ction. ri'Miili of |Nlll K(>04>iint of vutea. Final ffturn. [f it Ih niad«' to appear on tlic atlldavit of a credible witneHS to the <'Onnt.v thid^e thai a de|Mit,v returaini; onicer IniH iniprop«>rly eonnted or n^jerted ai\v ballot papers, tin' ('onntv .hid);e, where the majority for the BU('ct>ssfnl randitlate \h nnder tifty voten, may appoint a time for the reeonnt of the voteM ; notice in writing; ih ^iven to the candiiiaten or their a;;('nts ; the time appointed for tiie r<'count mnst not be more tlnin four (lays from the date of the appninl ment, and notic(> mnst be served not lens than two days befor<' the time appointed. The ('onnly Jnd|;(>, the retnrnin^ otticer and bin election clerk, and the candi dates, and one ajjent for each candidat(>, are entitled to be present dnrin;; the proce«'din^s. At the time and place appointed, the <'ounty .hidjje op«'ns the sealearticular elector has voted shall not be discovered. The recount is a contiiiiious proc«>edinj», allowing only time for refreshment, exclu- dinj; only Sundays, and tlie hours between six in the eveninj? and nine in the morninji;. Dnrint; the oTclnded time, the County Judfre takes the electioti papers under his own sole control. The result of the recount is certi lied to the returning: olticer, wiio tlien declares to be elected the candidate having tlie liijjhest number of votes. The final return of the election is made by the returning officer to the Clerk of the Crown in Chancery. If the majority for the successful candidate is over fifty it must be within ten davs after he has ascertained the 'MAI'. I. § 2] Rflntii'f fjhihhr) 208 ifHull of llii> poll ; it' tilt' iiiiijorlty for Uio hihmm'HH- fiil ciiinliilntt' Ih iiinhT liflv, iiftfi- th(> (Ifili (In.v on wliirli li«> icrrivrH llir liiHi rrliirn of ]iiiy (irpiity rrlnrnlii); olYlnT, iiiitl williiii ten diivn iiftci' li<> liiiN nNcpi'tiiiiird till' n'Hiilt of (Ik* poll. If ;i iTcoiiiit liiiH Ih'cii iniiiHlrroiiii(. All piip«>rH <-oiiii('<-(l<>ctioii iiiiiHl jiIho be h'iiiisiiiit(<'4l to tlt<' clerk of Mm' Crown In rimnrer.v ; IIh'.v an* kopi foi' oiio yrar, and Ihrii, nnh'HH <»rr«'«| to ho kopt h,v a •IihI^c of Hio Tourt of Ap|M>al or Klortion .lini^o, lliov arc rohibit<'d. All imm-sous who are ijuiltv of anv of tlwse V'^'^-'PV'' olTen<'es are held to be jjuilty of corrupt practices; the election may thereby be voided. No stronjjj drink can be sold or jjiven at any hotel, tavern, shop, or othei* place (luring ])olling day. If the corrupt [»ractices are found to bo of such triflinj; nature, or of such tritiinj? extent that the result cannot have been affected, op be reasonably Kupj)osed to have been affected, by these corrupt prac- ell it In J ■■i ■4 A04 l\)ifl)/n of /'. ISdMH |l'\lir I mil' in lliiU \>l «'lc('tliM( Im \o\i\. A i'iunlitliil<> who Iimm liffii fnuml ^^iH\ <>r riM-vnpl jM'ti. tit <>vi, iti mMilion Im IiIh <>l)>r|iiiii brii)^ \Mitl, \h ii(< :i)>nMi> of Itoiiiit t>lt<«'tt>il tliiritt^ llto «>iuhl ViUM n<'N( nKtM- lit!' «lnlr i»r \\\» In-inn rmiiul tliiillv nf »lHl»»u In H>o l.ryiMlnH'f VhmchiMv; oI" Itrlnn rnlrnd h« uuv \o((Mh" HmI mm II \t>(t>i-. t\\\i\ ol' vitHn^ n( nnv clti <n)i'o tit (ho noiniminon ol' Ihr Ti-^^wn. 01 of !\l oOh o. If (ho coiiniH jMHrdco >viIh ooniniil (oti bv i\ (jnulltliUo. ov wKh hlw knowlodfio nti*l roiiv..|ii \\i(ho\n ;i\\v ( o-n \m( iii(on(. !inrvnp( pvncdoo Is, In lilvo nutnnor. dniinji (ho oi^hl \o;ns no\t ;if(ov (hi' liino lio h;is Itoon fonnti iinil(>. in';i |»iiMo M iMMn^ olo((o«l (o (In* Loiiislndvo AHHonihlv or of v<>tins:, or of holding ;\\\\ o\\\v\' ii( (ho nondnfillon of (ho <')n\v\n. or of iho l.ionton;in( (5«»\ornor. ov any nmni oipal o(\i» o. Hn( |>«m"so»is odior \h:\\\ « junlhliHoN iWi' mtl s\il\»oo( (o (hoso dis;U>ili(ios l>y roiison of n nioioly (01 Imi \i\\ bn^iu h of l.iw. or l>y roi»so)\ of nny jio( t\o( In iti;: ,in into\uionnl \ioI,Uiou o[' Inw. Jind ni»( inv»>lvlni; niomi «n]p;ibili(\ or a(V«M'dnii (ho rosnit of (h(> (lot (Ion. If 11 « an «liila(o iv»nn\ini:ly < n>|tloys an ai;on(, wUhin 'i^lK voars fo\jnd ,i:nil(y of iorvnj»( pvao(io«'s, (Iummo* (ion 01 dioran di«la(«^ is \oi«l. If anv «Usnnali('M'a(i«ni has lioon pioM ;l lhrt>niili porjniy. i( iuav ho r(>n\tnotl on |>rovini;' titai i:\i\. Anv (v.o of I'.io .Jnd^os app«»in(o(l. as I will moM t'xplain. for (ho oiM((ri>l of »'!oo(ion po(i(ions. otnislituli- a (\o.iii foi- dio lonirol of iiMinp( prat(is. and may son(«'nrvii{M ^vraiiy is iinp«isod. (ho ronr( n\ay dir«'o( ilia( in dofanli of paynitMU. iho porson oonvn'(od can ho inipnsonod toi- (\Msons 1 ourt !i>r •■n f rr >t II pI'MVcM i>n lonntl I (Mt'idmi |)it< I'l^lil liulliv "if nnv «'!•'• (Ml ol' IIm' io. Ol iiin 4 roniin'tl tl (•ini'-'l»i<'ll iiliUt' lu>n tlH U\V !IM onllim ti» \h \\\\\\M\ n>Hp<'' ( <" riiUl.V Ml ;i iiiltN . ill' ■! isoniM.v Ol iliiMtlon ol iiny iiiniii loH i\ro \iol \v\\ lorillli (11 A I' I. s y] Hiliilirr ( I'lililii ) 'JMr, loo ( 1 »rUi!.r uur nioiin ir !i <;iii i;:lii voiirs M 111*' < ;i'i Lm JMOVisI Ivinu iliii' w ill Mi'Nl li'otislitnli' liis Comi irrsnll nioni'V'ii hi (li'fauli Isoiu'tl I'oi' II [III lod iiul ONI orillMf, olio v~oom<'I |i;i)t| 'I'lio iMiiili riiihin ul llo' oliili'iii m\sImii. mm will liiMo liooli Hooil. Im llio voliiii.' Ii> IimIIoI 'I'Io iiltjoi I I'l HiIh iimmIo ol' ^ollM^ In Io hoiimo hi rn' \, iiiol iill I lio |i|o\iMioiiH lllo (liiorlo)i In iiMiiiM lliiit < lol I. I'lorooilililiH u lull olorl loliH lllo roiiliKlod \riii DM oloilioli liiiH liooii liolil, II |ioltlloli I oiii|)ltllliiMU ol I'l'' iiMiliO' nllllli ol iiiulllo olirlioti ol' liiMiili' r iiiii\ ho ' ''iiili mI<-(| « III li'iri |iloHolllo M o ill^ |toi'HoiiH: (rrl Homo |»o|'hoii who vo|o»| or u lio liinl m ' liulil Io voir III llio olorlioii |o w hi« li llio |Mlilioii ioIiiIom; II. (/il Homo |M>iHoii ) liiimlii^ ho hml ti ri^hl Io ho io inniod or oloi lod in hikIi oliolioii, or, l( i Homo poiHOii iilh'ninn liiiMHoir Io hiivo hooii 11 I iiiMlifltilo nl Iho oh"- lion. 'I'IiIh polilioii JM nilloij im oloilion |iotilioii. IT n |iolilioM Ih pn'Hoiltoil ii^iiIiimI llio I'oliirti ol' Iho moinhor, Iho roHpoiMloiil, or iiiiv ollior poiHon oniiilid lo pioHonI nil oh-rlioii po.illoii, tuny, wllhiii lll'loon iIhvm iiflor Iho Mir\ ioo ol' Iho polllioii ii^iiiiiHl Iho roliirii, Dio n i«oiritif polilioii, roiiiplniiiiii(; of titi.v iitihiwliil niid cornipl id I hv liny riindidnlo nl Iho miimio oloilion, who wjih not rcliiiiiod, wholhor Iho hojiI Im or iw iiol < hiiiiiod hy or tor him. 'I'ho polilioii ii^iiiiiHl ii rotiirn iimmI he pri* Ni'iilod wilhiii Iwoiily otio diiNw iillor Iho rohiiji Iuih hoon iiiiido Io Iho riork of Iho <'idwji in <;hnn«or\, iinhsH it ipioHlioiiM Iho roliii'ii or olorlioii up'" iin nllo(/iition of nirrnpl pnirliroH, iind Hpooilinilly iiIIo^oh Iho pjiyniont of nioiioy or olhor nrl oC hrihory Io hiivo hoon (omrnit- l; Iho poHlion niiiHl ho fijod witli it. Sonirily for Iho oohIh nnd oxponsoH niiiHt ho fiirninhod ;it Iho I into tlio |>otition Ih tliod, or within throo dnys nftor wiirdH. Tlio nnionnt of H«'oiirily in iJI,(H»0, whi«li iH (iopoHitod in Hotiio bnnk to tho crodil of tho acoonntnnt of Iho Kiiprcino ('oiirt. TIio petition rnuHt ho Hervod 20() Right a of Persons [l'AI«T I ?!■ i i ■ Klectioii llHt. Trial of {wtition. Upon tlu' respondent within live };;isti'ar of the Conrl in his ottiee, whirh is called tlie eh'ction list. The petitions are tri«'tl in the oi-der in whieli they stand in the lisi. Kvery jtartj to an eh'ction petition may, at any tinn' after the ])etition is at issue, be examined for the pur j>oses of dis»'overy of evidenee by any person adverse in interest. The examination is taken in the same way as that of i>ai'ties to a suit. Th«' trial of every election petition must Ix' conducted before a .ludjjje, or two .ludjii's. s«'lected from a rota formed fen* that purpose. Tlie members of the Court of Appeal, and of the three divi hIous of the Ilijjh (^ourt of »Iustice, select om' of the .Iudp>s to be placed on the rota durinj;: the onsuinj; year; this choice is made on or before the third day of Michael mas Sittinji;s in each year. Allej^ations of corrupt prac tices against the candidate must be tried by two Judj^es on the rota. No candidate can be accused of <'oriupr practices, nor can any person be declared guilty of a cor rupt practice, or disqualified, except on the decisicm of the two Judges jointly, or of the (N)urt of A]>peal. Tlie trial of the petition must take place in the electoral dls trict, the election for which is in question; but the place of trial may be changed, if necessary, by (1h> Court. Notice of trial must be given not less than fourteen days before the day of trial. The Judges have the same powers of trial as they have in their ordinary Courts. If three months elapse after the presentation of the peti- tion without the day of trial being fixed, an elector may be substituted for the petitioner. The trial of every peti- tion must be commenced, however, within six mouths from the time the petition was presented, and, when commenced, must be continued from day to day until concluded. If the member-elect is entitled to take his seat, the trial of the petition must not, without his con- sent, be held during the session of the Legislative Assembly, or within fifteen days aft'>r the close of the session; the time occupied by the session is not included in the computation of the six months. When the evidence has been heard, the Judge or Judges drawin?? the peti- CIIAI'. I, ^ 2J Relative (Public J. 207 tion must dctcrniino wlH'dicr Ihc ihcihImm' wliosr cU'ction or ivtuni iH coinplsiincd of, or wliat otln'r prrsjui was returned or elected, or whellu'r (ln' eh'etion was void; and must certify the result to the Speaker. If there is ii disajrreement between the Jud^jes before whom a peti- tion is tried, they must certify their disaj^reement ; either jtarty may thereu|»on brinj; the matter before tlu? Court of Ai>peal; that Court has the same jurisdiction in all res|>ects as on an appeal from any other decision. The ref»istrar must c«'rtify to the Speaker, or, if tluM'e is lit) Speaker, to the cleik of the House, their judf^ment and decision. If there is a trial before two Judges, every certiticate Jind report sent to the Speaker must Xw under the hands of both Judges; if there is a ditTerence, they must certify that ditfereuie. There is no appeal from a decision of the Judges d<'clarint? that a candidate or other person has not been guilty of corrupt jirac- tices, or flndiu}; in favor of the candid.ate any of the ex- tenuatiu}; circumstances I have mentioned under the last heading? of elections. If a charge is made in an Rejxjrt »f election petition of a corrupt ])ractice having bwn com- ^'r^"{ceH. mitted, the Judges must report in writing whether any corrupt practice has existed; the names of any persons who have been proved to have been guilty of any corrupt jiractice, and whetlu'r such practices have, or whether there is reason to believe that corrupt practices have, ex- tensively prevailed at the election to which the petition relates. The Speaker, on receiving the certificate and report, must communicate the same to the Legislative Assembly. The Legislative Assembly then enters the certificate and report on its journals, and gives the neces- sary directions for confirming or altering the return, or for issuing a writ for the new election, or for carrying the determination into execution, as may be required. Any person to an election petition under this Act, who is dissatisfied with the decision of the Judges on any question of law or fact, and who desires to appeal against that decision, must within eight days deposit with the registrar of the Court the sum of $100, by way of security foi* costs. The person appealing must, within three days after the security has been given, give notice l»M 208 Rights of Persons [part I rr 3H' With- dniwivl of pt'ti lions. t' of Hcttiiifr down the appeal U» bo hoard; tlio Court then disi)0808 of the luattor in tho same way as other appeals. The rejiislrar of the Court tlien cortifios to the Speaker tho judgment and decision of the Court, which are linal. Where, in consequence of an election petition being pre Scrutiny, soiilod, it becomes necessary to enter into a scrtitiny of the vot<'s j)olled, the Judge may make provision foi* hold ing in ev<»ry local municipality in tho electoral division a scrutiny of tho votes ])olled in that municipality. Tli" scrutiny may be before the Judge or his registrar, or some barrister a]»pointed in liis stead. If tin* decision of the delegate is unsatisfactory, an appeal may be had to the Judg(! himself. No election petition can be witli drawn without the leave of the Court. Notice may bo given of tho intention to withdraw, and on tho return of that motion a substitute may bo appointed; if there ar<' more j)otition(M's than one, ail of them must consenl. On the death of any petitioner the petition becomes abated. Notice of this fact must bo given in the olec toral district to which tho petition relates, and any per son who might have been a petitioner may be substi- tuted. If the respondent, during the trial of an election jH'tition, should die, or if tho Legislative Assembly has resolved that his seat is vacant, or if he withdraws from opposition, then notice of that event must bo given in the electoral district, and any person who might have Ix'on petitioner in resjtoct of the election may apjily t;> the Court to be admitted as a respondent to oppose the petition. A respondent who has given notice that he does not intend to oppose a ju'tition cannot further ap pear, and cannot sit or vote in tho Legislative Assembly until the Assembly be informed of tho report on tho peti tion. If an election petition complains of a double re turn, and the respondent has given notice that it is not his intention to oppose the petition, and any other person has been substituted, then the petitioner, if there is no petition ponding on tho other member's return, may withdraw his petition. I'pon receipt of that notice the fact is reported to the Speaker and Legislative Assembly and ends the total return. Costs are allowed depend- ent on the event. An agent found guilty of corrupt f:u\]\ I, ^ 2] RcUitlra (PaUic). 209 return. (» ro- s not rson is no may L' tlio nibly •end- rupt Doniiiiidn flection klWH. prncticos u\i\y ho ('on(l<'iun('etty tricks fo>* slidinj^ free expression of opinion on jiublic (|uestions will be laid aside. 2. Electoral franchise Fnvncliisc, Every jtei'son is entitled to be ref^ist<'red in any yeai'R.H. c. upon the list of voters for the i)roper pollin*;- district of"*"'" any electoral district; and when so registered, to vote, if such person is 1. Of the full age of twenty-, ne years and not dis- qualified. 2. A T?ritish subject. ". Is the owner of real property within any city or l)art of a city in the electoi-al distiict of the actual valu> of at least .|.300; or within any town or part of a town in the electoral district of the actual value of at least $200; or in any place in the electoral district other than a city or town of the actual value of at least fir>0; or, K.B.— 14 Hi: \u \ h ,1 H- I f 210 Rif/hts of Persons [part I 4. Is the ton.ant of .iny real property within the elec- toral district under a lease at a monthly rental of at least f2; or at a quarterly rental of at least $0; or at a half-yearly rental of at least ^12 ; or at an annual rental of at least ^20; and has been in possession as tenant for at least one jear befoie his being placed on Ihe list of voters, or his application to be placed on that list, and has really and bona fide paid one year's rent as aforesaid — except when the rental is an annual one, and for a larger sum than $20, when it is sufficient that at least ^2(» of the last year's rent which accrued next before the time mentioned has been paid. A change of tenancy during the year does not deprive the tenant of thi> right to be registered on the list of voters if the change has been without any intermission of time between the tenancies, and if the several tenancies are such as would entitle the tenant to be registered under any one of them. The rental may be payable in money or coin or in money's worth. If on any revised or final assess- ment roll the amount of the tenant's rent is not stated, the fact that the real [)roperty on which his name is entered as tenant is assessed at ^WO or more, or in towns at 1200 or more, in any place other than a city or town at |1;jO or more, is prima facie evidence of his right to be registered on the list of voters. 5. Is the bona fide occupant of real proi)erty of tlie above mentioned respective values, provided the person has been in possession as occupant for one year next before his being placed on the list of voters, or the date of the application for the placing of his name on the list of voters, and has been in the enjoyment of the rents and profits of the real property-. (J. Is a resident within the electoral tlistrict and tlerives an income of at least flJOO annually from his barnings in money or in money's worth, or i)artly in money and i)artly in' money's worth, or from some pro- • v; sum, calling, ofiice or trade, or from some investment • i Tanada, and has derived that income, and has been ? sident of Canada for one year before he is placed on {he list of voters, or applies to be placed on that list. "^^ r CHAP. I, § 2] Relative (Public). 211 7. Is a farmef's son not otherwise qualified to vote in tlie electoral district in which his father's farm is situ- ate; and Ui) if his fatlu'r is iivinj^, is and has been resident within the electoral district continuously witli his father for one year before his being placed on the list of voters, or his application to be placed on the list, if the value of the farm is sufticiently and equally divided amonj? the father and one or more sons as to qualify them \o be rejjistered as voters; in which case the father and such one or more sons may be rejjistered as voters; if not enough for more than one, then the right goes to the eldest, or so many of the elder of the sons fis the value of the farm will justify; (/>) if the father is dead and the son has been resident within the electoral district continuously with his father, or with his mother after the deatli of his father, being the owner of the farm for one year as just explained, in this case the elder sons have the preference in the same way. S. The son of an owner of real property in the elec- toral district other than a farm not otherwise qualified to vote on the same conditions mutatis mutandis as farmers' sons. !). A fisherman resident in the electoral district and the owner of real property and boats, nets, fishing gear, and tackle, within the electoral district of the actual value of at least floO. 1(1. Is and has been for one year next before being j)laced on the list of voters or the date of his ai)plication to be placed on the list a resident within the electoral district, and in receipt of a life annuity secured on real estate in Canada of at least |10(). Occasional absence of any farmer's or owner's son for any period not exceeding in all six months in tlie year does not disqualify that person from being placed on the list of voters. Time spent as a muriner or as a fisherman, or as a student of any institution of learning, is considered as having been spent at the residence of the father or mother as the case may be. Persons qualified as voters are only entitled to be registered as voters and to vote in the polling district , [1 ' ".< Hcffistra- tion of voters. • it! If! 212 Rights of Persons [I'Aiir I i-t<;!l ii ' 1 t Ul 'II- Il4 Revising offic'i r. Voters' lists. in which they rcsido at the timo of roRistration. Per- sons qualifit'd otherwise than by receipt of income an' only entilU'd to be re,';;istered and vote in the pollinj; district in which the real ])ro]MM"ty is situate; if property is within more than one district the voter may choose the district in which he wishes to be registered. Kevis- inp otticers are appointed who hold ottice durinjj; good behaviour, but who are removed en address by the House of Commons; these officers must revise and com- plete the list of persons entitled to be rej^istered as voters for any electoral district; they must take an oath of office. A deputy revising: officer may be ai)pointed by the Governor in council in case of necessity. In the Pro- vince of Ontario any person to be appointed a revisiuj* officer must be either a Judge or a junior Judge of a County Court, or a barrister of at least five years' stand- ing. As soon as possible after the first of June in each year the revising officer must cause the list of voters to be compared with the last assessment rolls, and with all the information he can obtain from that or any other source, revise the list of voters for the district for which he is appointed. He prepares two separate supplement- ary lists, one to be entitled " names to be added and cor- rections to be made," the other to be entitled " names to be removed." He must enter on the former list the names of all persons not alread^v on the original list who are entitled to have their names entered; he must enter on the latter list the names of all persons whose names appear on the original list and who are dead or who are not entitled to be registered as voters. The assessment rolls are prima facie evidence of value and qualification. Declarations as to any person's claiming to vote must be received up to the first day of August, when the revising officer must proceed w'ith the posting and publishing of the lists; after closing and certifying Ihem he must exhibit to pny person requiring to examine them these declarations. Immediately after the revis- ing officer has completed and certified these supplement- ary lists he must sign two of them as revising officer; he must then have them printed by the King's printer. After comparing and correcting his printed copies he ^mmf^ CHAP, r, ^ 2] lidative (VMic). -'18 must post up ono ropy of tlio last iwiscd list in his onicc with a notice appointinj; a time and i)laif for the final revision of the list; ho must also send four copies to the member for the electoral district, and to each unsuccess- ful candidate at the last election for the electoral dis- trict; he must also send to each postmaster a copy of the list of the polling district in which the post office is situate; the postmaster must keep his copy posted up in a conspi iMM'isiiip: otllcMT \h NiiliKlliMl tlisit tli(> nftpliciil ioii iH n>aNoiinl)l.v rci'tniii. IT Ww iTvisiii^ oitlcrr lliids Hint llic iiiiiiK' or (puiliticiitioii of ii |M>i'son is iiM'orn> lUTosHjirv <|imli(hii(i«>ii nititlin^ him to lie rcfriHtri-cd, he must i-ctiiiti (lie pcr- sim's iiiimr. miiicinjj: all lu'ccssjirv roncctioiis. Al lln' .,. ... conclusion of Iho r»'vision the rcvisini' olllccr must in open Court ^ivo |Mil)lic notice of tlio time ami place when lu' will proceed to the coti«'ction «ntains one co|»,v und forwards the other hy rej^istered letter to the (MerU of tlie Crown in Chancery at Ottawa; the latter <»nicial, on receipt of all llie lists for any electoral ilislrict, puhlishes a notice of his havin}; n'ceived these lists. After the publica- tion of this notii'e the pei'sons whose names are entei-ed on the list as voters are, subject to any correction or amendment made by any .hid^c on appeal, held to be duly registered voters for the electoral district. In tlu? ( vent of tlie appeal which is hei'eafter described, the lists, • after the publication of the notict' Jiisl menticmed in tiie <'anada (Jazett*', ajtply to every election takinjj; place befori' the ajtpeal has been disposed of, and tlu' result communicated to tlu> returninj;' oHicer. The list must be tinally revised and «'«M'titied and a duplicate for- warded to the (/lerk of the ('rown in Chancery at Ot- tawa on or before the Slst of December in es)ch year. As soon as the lists are n ceived by the <'n rci'tidcd iiimI until (Im' otlicr liHtH arc in n rn(ur(> vriir n'viwMl, lliow ikthouh only wIiohc naincH ni'«' entered upon those listH are entitled to vote at eleetioiiH. Tile liHtH are landing on every .Ind^c or otliei- triiainal ii|t]M)inted Tor the trial <»f aii.v ehM-ticai |ietiti<»n. There Appini \h an appeal from the i-evisin^f otilcer to the <'ount y rivi,ii,n Court flud^e; any perH«a) \vh(> \h diHwaliHtled may jr|vo""'*^" U(»ti<'e in writing within lliree days ftoiii the date of the deeision of hiw intention to appeal, Ntatin^ in tlie notice the de<-isi(»n roniplained of and at leant one reason tor appealing ajjainst it. A <'opy of the notice must he served upon the person in whose favour the decision wa-i jjiven; the revising; otlicer niast forthwith after receiv- ing the noli<-e transmit it witli a copy of his decision to llie County Couit .Iml^re, an«l the decision must be signed by the revisin^^ otlicei'. The dud^e ap|M>ints a time and phu'e for the hearinjj of the appeal, and notice is ^(iven retpiirin^j; jm alteration to be made in the certified list, to the revising; itllicer and to the paities interested. Tlie appeal is llicii present session ot I'iii'liatnent, slierilVs, rej^istrai's and pei'sons wlio Inive been found tjnilly l».v Die House of Coniinons or by any ('(»uil fersons ai'e exenipled from attin;; as elect i(ui olUcers : professors, physicians or sur;;eous, niillerH, postnnisters, customs ollieers. post olllct' clerks, persons of sixty years of afj;<' JHid upwards, [)ersons who have previously served as retiirniu}^ otlicers at the elec- tion of a member for the J louse of Commons. No (luali- lication in real estate is reciuired of any candidate for a Beat in t're House of Commons, but the candidate must be either a natural liorn subject of tlie Kin}{ oi' natu- ralized. No revisin}^ oOicer while he is revisin;^ olllcer, or for two 3'ears afterwards, can be a candidatt? for the distiici in which he was revising; oflici'r. Twenty-liv*' electors nmy n(uninale a candidate; the nominati()n must be accompanied by |2()() as a deposit; this deposit is re- turned in case the candidate is eb'cted, or if he obtains a number of votes at least equal to one-half of the num- ber of votes polled in favour of the candidate elected; otherwise it is forfeited. The money pai'd, if forfeited, is ajiplied towards jtayment of the election expenses. A poll is granted in the same way as in provincial elections. The poll is kept open from nine in the; morning till five in the afternoon. The persons who are entitled to vote have already been mentioned in the last section; the persons who are not entitled to v<»te are judges whose appointments rest with the (lovernor-Ceneral ; revis- ing officers, returning otlicers, election <'lerks, any person employed as counsel, attorney, solicitor, agent or clerk at any polling place at the election, or who has received or expects to receive any bribe or promise of oflice, pla(;e or employaient. Tlie returning officer hiis a vote in case of an equality between candidates; deputy returning officers, poll clerks or constables may vote. Within four days after the returning otticer has made the final addition of the votes for the purpose of declaring who is elected, an application may be made to the Judge of .Ni'iiiiiia- tioii. Poll. who may not VuLc. ir^ If 218 Recount. Corrupt practices. Rights of Persona [part Trial of cdiitro- vei'tcd Dominion elections, R. S. C. C.9. the County Court for a re-count. The provisions for a re-count are the same practically as those of the Provin- cial Act. If it is proved on the trial of any election peti- tion that any corrupt practice has been committed by and with the actual knowledge and consent of any candidate at- an election, or if he is convicted before any competent Court of misdemeanor, of bribery or undue influ- ence, he is held guilty of corrupt practices, and his election, if he has been elected, is void. During the seven years next after the date of his hav- ing been proved or found guilty he is incapable of being elected to or of sitting in the House of Commons, or of voting at any *^lection of a member of the House of Commons, or of holding any office in the nomination of the Crown or of the Governor-General in Canada. Any person other than a candidate found guilty of any corrupt practice, is during the eight years, next after he is found guilty, incapable of being elected to and sitting in the House of Commons, and of voting at any election of a member of the House of Commons, or of holding any office in the nomination of the Crown or of the Governor-General in Canada. A detailed statement of all election expenses incurred by or on be- half of the candidate must within two montl's after tlie election, or if by reason of the death of a creditor no bill has been sent in within two months, then within one month after the bill has been sent in be made up and signed by the agent of the candidate; the returning officer must, at the expense of the candidate, within fourteen days publish a statement of these expenses. Any executory contract or promise or undertaking in any wa; -ef erring to or arising out of, or depending upon ai\v elei Uon, even for the payment of lawful expenses, or the doing of some lawful act, is declared void in law. In the Province of Ontario the Court for the trial of controverted Dominion elections is the High Couit of Justice for Ontario. Petitions complaining of undue return or undue election, or no return, or a double re- turn, or of any unlawful act by any candidate not returned by which he is alleged to have become disquali- fied to sit in the Houseof Commons, may be presented to l^Wf CHAP. I, § 2] Relative (Public.) 219 the Court. Provisions similar to those of tlie Provin- cial Controverted Elections Act have been made as to preliminary examination of parties, production of docu- ments, trial of petitions and reports of Judges; an ap- peal lies to the Supreme Court of Canada. Provisions are made to prevent the fraudulent withdrawal of elec- tion petitions, and for continuing them in case of abate- ment by death of either petitioner or respondent or any other event. If, on the trial of an election petition, it is determined that any person has been guilty of a cor- rupt practice, or if oni the trial there is in the opinion of the Judge sufficient evidence available that any per- son has been guilty of corrupt practice to warrant his being put on his trial the Judge uuiy fix the time and place for the investigation. The trial must be held not more than thirty days froin the date of the summons, and the place must be the nearest convenient court house or other available room ; the person may be bound by recognizance to appear to be tried. The Judge tries the accused and gives judgment according to the case; in ease of a conviction of corrupt practice, the offender must be sentenced to imprisonment in any gaol for a term not exceeding three months, with or without hard labour, and to a fine not exceeding f200, and to pay the costs of the prosecution. If the fine and costs are not paid be- fore the expiration of the three months, then to im- prisonment for such further time as they remain unpaid not exceeding three months. Commissions may be issued bv the Governor-Gen- Cunimis " MHHIM to eral for making inquiry into the existence of corrupt emiuir« at elections under the practices stances : 1. Whenever following circum- ;;>;;; •^"- practices, the House of Commons by addi-ess K. S. C. represents to the Governor-General that a Judge in his^" report on the trial of an election petition states that cor- rupt practices have, or that there is reason to believe that corrupt practice ? have extensively prevailed at thi! election, or that he is of opinion that the inquiry into the circumstances of the election has been rendered in- complete by the action of any of the parties to the peti- tion, and that further inquiry is desirable. si'' 'i: 220 Rights of Persons [I'AllT I m ■■f\\ i?, ■ 2. Whenever the House of Commons by address represents to the Governor-General that a petition has been presented to the House of Commons signed by twentj'-flve or more electors of a district, stating that no petition charging the existence of corrupt practices has been presented, but that corrupt practices have, or that there is reason to believe that corrupt practices have extensively prevailed at the election, accompanied by a solemn declaration in that behalf signed by the petitioners, and when in either case the House of Com- mons prays the Governor-General to cause an inquiry to be made for the investigation of the facts. The commissioners may be one or more Judges of the Supreme Court of Canada or of the High Court of Justice, or a person named in the •iiddress being a County Court Judge, or a barris- ter-at-Iaw of not less than seven years' standing, not not holding any office or place of profit under the Crown. Inquiry is made by the commissioners, who Take evidence and furnish a report. Whenever it ap- pears by their report that any person named by them has been guilty of a corrupt practice and has not been furnished with a certificate of indemnity, the Attorney- General of Canada must state whether he considers there is sufficient evidence available for a prosecution; the Secretary of State must thereupon communiciite the report with the evidence to the Lieutenant-Governor of the province in which the election was held, and the pro- secution must be instituted by the local authorities charged with the administration of justice. A deposit is required of $1,000 to meet the expenses of the investi- gation. If the petition was well founded, and it is reported that corrupt practices extensively prevailed within the electoral district at the election, the deposit i3 returned, otherwise it is applied towards the expenses. I have now reached the conclusion of my synopsis of tlie laws relating to the elections in the Dominion and of election fj^p province. The main objects in both systems are the same. They both aim at secrecy in votinjif and drastic punishment of corrupt practices at elections. Undue Conclu- 8 km of summarv CHAP 1, § 2] Rctiitive {Pu.ldk). 221 ;i- inflnence is tlins (I wish the depravity of mankind would let mo say effectually) guarded against. But after reading the account of the elaborate provisions to prevent corruption of voters already made, and remembering that in almost every session of the Legis- lature further provisions are added thereto, it makes the student almost come to the conclusion that a disease which require's such intricate remedies must be too deeply seated to be cured by paper legislation. The true remedy lies with the electors themselves. If they bear in mind that when they sell their votes they sell their country, or, what affects them more, their own libertv, th(>v will learn to refuse offers made them by politicians who, having everything to gain and nothing to lose, sacrifice their native country and their fellow-subjects for their own selfish advancement. In consetjuence of the importance of this law rela- ting to elections I h.ive been obliged to devote consid- erable space to its examination. All I have been able to do is to gather the substantial particulars. Many points of detail have been omitted. I trust sufficient has been done by presenting a connected account of the various steps, from the preparation of the voters' list to the final decision of a contested election, to enable the reader to trace them intelligently. I leave the subject in the reader's hands, with the suggestion whether it would not be advisable in the interests of the coun- try to harmonize the electoral legislation of the Do- minion and the province. The number of members from Ontario in the Dominion is different from the nunibor of members in the Local Legislature. The electoral di- visions for the House of Commons are different from those in the Legislative Assembly. The qualifications for voters are different. Instead of uniformity there is diversity. If one standard were adopted for voters in Dominion and provincial elections great simplification aui. iving of expense would result. The most reason- able p.;,n would seem to be to allow each province to settle electoral matters for itself, and then the Domin- ion could adopt the provincial system for Dominion purposes. The franchise throughout the Dominion would ■I t ^■!t '1:j ir I:- !■ 1 1 i * (■. "1 ijl 222 Rlr/hts Of Persons [part I not be identical, but the members returned from eacli province to the House of Commons would just as truly represent the public opinion of the province as under the present double system, with its enormous expense and trouble. There yet remains* the subject of the peculiar laws and customs of Parliament, which will conclude our ex amination of the subject of the supreme magistracy of the Dominion and province. Peculiar IV. The privile}»es of peculiar laws and customs of ourtom" \)f *'*^' Senate are confined to adjudicating upon questions parliament of divorce. The Senate is necessary' as a check upon the legislation of the House of Commons. That body, being more directly democratic, is more liable to be misled, and in many cases absolutely deceived in matters of private legislation. In such cases the interference of the Senate is beneficial and is actively exercised. V. The peculiar laws and customs of the House of Commons relate principally to the raising of taxes. It is the ancient, indisputable privilege and right of the House of Commons, that all grants of subsidies or par- liamentary aids do begin in their House, and are first bestowed by them; although their grants are not effec- tual, to all intents and purposes, until they have the assent of the other two branches of the Legislature. It has already been stated that in the Dominion House a bill for these purposes must be preceded by a message from the Governor-General recommending its introduction; the same right of granting supplies for provincial purposes is vested in the Ontario Legislature, but must be preceded by a message from the Lieutenant Governor. The Statutes of the Dominion and Province relating- to matters discussed in the preceding section with their iimendments are no\ir set out. * See page 53 : I. Manner and time of assembling of Parliament ; II. Constituent parts of Parliament — page 54 ; III. Laws and customs of Parliament, page 173. CHAP. I, § 21 Relative (Public.) 223 PA«E. 55.. 05 n G6.. 06., 60., (50., (57. , C7.. 67., 69.. 6i»., 70., 70. 70. 70. 71. 72. 72. 57. 6i. <)5 . 65, CO, Supreme Magistrates — Dominion (Revised Statutes 1886.) Governor General— o. 3. .Hi)?h Commissioner for Canada— c. 16, 1887 c. 16 ; 1888 c. 13. Civil Service— c. 17, 1888 c. 12; 1889 c. 12; 1892 c. 14; 1894 c. 18; 1885 cc. 14,15. ,C. S. Superannuation— 0. 18, 1888 c. 7 ; 1893 c. 12. • Public Oflicers' Act— c. 19, 1887 c. 9 ; 1893 o. 14. .Department of Justice — c. 21. 1887 c. 14. .Department of the Interior— o. 22, 1890 c. 11 ; 1892 c. 16. .Department of Agriculture — c. 24, 1887 c. 12. . Department of Marine and Fisheries — 1892, c. 17. Department of Secretary of State— c. 26 ; c. 27, 1888 c. 17 ; 1893 c. 15. .Department of Finance — c. 28, 1887 c. 13. .Department of Customs— c. 32, 1887 c. 11; 1888 c. 14; 1889 c. 14; 1891 c. 44 ; 1892 c. 29 ; 1894 c. 83 ; 1895 c. 22. .Department of Inland Revenue -c. 34, 1887 c, 11 ; 1888 c. 16 ; 1889 cc, 15, 19 ; 1890 c. 23 ; 1891 cc. 32, 46 ; 1892 cc. 22, 29 ; 1894 c. 35 ; 1895 c. 25. .Department of Post Office— c. 35, 1888 c. 8 ; 1892 c. 29 ; 1894 c. 54. .Department of Public Works— c. 36, 1889 c. 19 ; 1895 c. 36. .Departn^ent of Railways and Canals— c. 37, 1889 c. 19. .Department of Militia and Defence— c. 41, 1892 c. 29. R. M. Colle«e-c. 42, 1892 c. 6 ; 1893 c. 17. .Department of Trade and Commerce — 1887 c. 10. Province (Revised Statutes 1887.) .Lieutenant-Governor -c. 12, 1888 c. 5. .Executive Council- c. 13, 1888 c. 8, .Public Service— c. 14, .Public Officers — c. 15. .Public Enquiries — c. 17. 98. 99 . King's Prerogative (Dominion.) — R. S. C, .Weights and Measures— c. 104, 1887 c. 37 ; 1888 c. 25 ; 1889 c. 17 ; .Currency — c. 30. King's Revemte in the Dominion. — R. S. C. 1891 c. 47. 123.. Consolidated Revenue- c. 29, 1888 cc. 2, 7; 1891 c. 16 ; 1894 c 19. 124.. Subsidies— c. 46. * 132.. Dominion Notes— c. 31, 1894 c. 21 (repealed by 1895 c. 16, R. S. C. c. 31, reinstated.) lH3..Custom8Duties— 1891c. 33; 1895 c. 2H; 1896c. 3. 137.. Excise— c. 34 (see above.) 141.. Government Railways— c. 38, 1887 cc. 16, 18, 27; 1891c. .50; 1892 c. 29. Expropriation of Lands — 1889 c. 13. 143..PublicLana8— c. 54, 1887 c. 31 ; 1888 c. 21 ; 1,'<89 c. 27; 1891 c. 24; 1892 c. 15 ; 1893 c. 18 ; 1894 c. 26 ; 1895 c. 34 (amnnding 1889 c. 27.) 143. .Ordnance and Admiralty Lands — c. 55. 143. .Fiskeries-c. 95, 1889 c. 24 ; 1,891 c. 43 ; 1894 c. 51 ; 1895 c. 27. 1 44.. Ferries— c. 97, 1,S88 c 'Ji. Patents, Copyri M iirl 224 Rif/hts of Persons [part I PACE. lU.. Government Savings Banks — c. 121, 1888c. 8. 115.. Fines ami Forfeitures —Coile 18!)'2, sees. '.)27 to 5)^0. K'twfs Revenue in the Province — 11. S. O. 147.. Consolidated Revonuo Fund -c. 19. 1J7.. Collection of Ilovcnue — c. 20. 118.. Auditing Public Accounts — c. 21. 119.. Law Stamps— c. 22. 149..Public Lands -c. 24, 1891 c. 7 ; 1890 c. 7. 149. .Free Grants— c. 25, 1889 c. 7 ; 18C0 c. G. See Alfjonquin National Park Act, 1893 c. 8; 1800 c. 9. 1.52. .Timber on Public Lands— c. 28, see 1890 cc. 7, 8 ; 1896 c. 12. 153.. Trespasses on Public Lands- c. 29, 1891 c. 16. 153. .Mines— 1892 c. 9 ; 1894 c. 10 ; 1896 c. 13. 1.56.. Fisheries— c. 32, 1892c. 10. 156.. Public Works— c. 33. 1.58..Drainase Act— c. 36 ; '894 c. 56 ; 1896 c. 66. 158.. Municipal Dial naj.' Tile and Sto:K 'ru -c. 38, 1890 c. 11 ; 1895 c. 9. 160..EsclieatH— c. 95. 160.. Crown Bonds— c. 94. 161..Ferries— c. 117. 161..E8treats~c. 88. 162.. Fines and Penalties— c. 89. 163. .Remission of Fines — c. 90. 163.. Succession Duties— 1892 c. 6; 1895 c. 7; 1806 c. 5. Representation in the Legislative Assembly — R. S. 0. 170.. Legislative Assembly— c. 11, 1889 c. 2; 1895 c. 4. 180. .Representation— c. 7, 1889 c. 2 ; 1894 c. 2. 183. .Voters' Lists— 1889 c. 3 ; 1891 c. 5 ; 1803 cc. 2, 3 ; 1894 c. 3. 188. .Manhood Suffrage— 1888 c. 4 ; 1889 c. 5 ; 1890 c. 2 ; 1894 co. 4, 7 ; 1895 c. 3. 194. .Election Act— 1892 c. 3 ; 1894 cc. 5, 0, 28 ; 1895 c. 4. 205,. Controverted Elections— c. 10, 1891 c. 6; 1895 c. 4. Representation in Parliament — R. S. C. 167.. Senate and House of Commons— c. 11. 1889 cc. 10, 11: 1891 c. 21; 1802 c. 13 ; 1893 c. 11 ; 1894 c. 10 ; 1895 c. 9 ; 1890 c. 7 . 108.. Speaker, Senate— 1894 c. 11. 171.. House of Commons— c. 13, 1889 cc. 10, 11. 176. .Speaker. House of Commons — c. 14. 209. .Electoral Franchise— c. 5. 1887 c. 5 ; 1888 c. 9 ; 1889 c. 9 ; 1890 o. 8 ; 1891 c. 18 ; 1892 c. 12 ; 1893 c. 10. 209. .Representation Act— c. 6, 1887 c. 4 ; 1892 c. 11 ; 1893 c. 9 ; 1894 c. 12 ; 1895 c. 10 ; J 896 c 6. 216.. Dominion Elections Act— c. 8, 1887 c. 6; 1888 c. 11 ; 1890 c. 9; 1891 c. 19 r 1894 c. 13 ; 1895 c. 13. 218 . . Controverted Elections — c. 9. 219.. Corrupt Practices at Elections— c. 10. €HAP. I, § 2] Relative (Public). 225 1^ -.TliBfra We have now reached the close of the consideration of the supreme raagistracy, and proceed to those of lower rank, for It will have been seen that magistrates can be dis- tinguished into two kinds: Supreme, or those in whom the sovereign power of the state resides; and subordi- nate, or those who act in an inferior secondary sphere. We have hitherto considered the former kind only, namel}', the supreme legislative power of Parliament, and the supreme executive power, whicli is the King, and are now to proceed to inquire into the rights and duties of the principal subordinate magistrates. And herein we are not to investigate the powers {md duties of the King's great officers of state, who in England are the Lord Treasurer, Lord Chamberlain, the principal secretaries, or the like; because I do not know that they are in that capacity in any considerable degree the objects of our laws, or have any very impor- tant share of magistracy conferred upon them, except that the Secretaries of State are allowed the power of commitment, in order to bring otlenders to trial. Neither shall I here treat of the office and authority of the Judges of the superior Courts of justice. Nor shall I enter into any minute disquisition with regard to the rights and dignities of mayors and aldermen, or other magistrates of particular corpora- tions, because they are mere private and strictly muni- cipal rights, depending entirely upon the constitution of their respective franchises. But the magistrates and officers, whose rights and duties it will be proper in this place to consider, are such as are generally in use, and have a jurisdiction and authority dispersedly throughout the province, which are, principally sheriffs, coroners, justices of the peace, police magistrates, county attorneys and constables. All these officials, except the last named, are ap- * pointed by the Lieutenant-Governor and hold office during pleasure. K.B. — 15 '"I '^ n- I %\ ^d :( M III' ■■■' if !• 226 nights of Perstms [I'AUT I HlHiiffH. Fil'Hf, SIH to slici'ifl'H. Wv hIuiII find it of the utmost iinpoi'tJincc to have tlic hImtIIT iippoiiitcd accordiiif? to luw, when wo eon- sidci' his power juid duty. Those are eitiier as tlie laM'per of tiie Kinj^'s peace, as a niinistenal oflicer of llu' suju'rior Conils of jirtice, or as the King's bailitV. As the lveei»er of the King's peace, botli b.v couinion law and special commission, he is in England the first man in the county, and superior in rank to any nobleman therein, during his term of ollice. He may apprehend and commit to prison all persons who break the peace, or attempt to break it, and may bind any one in a recog- nizance to keep the King's peace. He may, and is bound ex otticio to i>ursue and take all traitors, murder- ers, felons, and other misdoers, and commit them to gaol for safe custody. lie is also to defend his county against any of the King's enemies when they come into the land: and for this purpose, as well for keeping the peace and pursuing felons, he may command all the people of his county to attend him: which is called the "posse comitatus " or power of the county; and this summons every person above fifteen years old, and under the degree of peer, is bound to attend upon warning, under pain of tine and imprisonment.* But though the sheriff is thus the principal conservator of the peace in his county, yet by the express direction of the great charter, he, together with the constable, coroner, and certain other olticers of the King, are forbidden to hold any pleas of the Crown, or, in other words, to try any criminal offence. For it would be highly unbecoming that the executioners of justice should be also the judges ; should impose, as well as levy, fines and amercements; should one day condemn a man to death, and personally execute him the next. Neither may he act as an ordinary justice of the peace during the time of his oflSce: for this would be equally inconsistent; ho being in many respects the servant of the justices. In his ministerial capacity the sheriff' is bound to execute all process issuing from the King's Courts ol' 55 Vict. c. * The mayor of a city has the same power as a sheriff to call out tlie 42, s. 478. posse comitatus. Posse comitatus. CIIAl'. I, § 2] Relative (Pahlic). 227 tlU' lltll, he nu» lio f justice. In the ooiniiu'iKt'incnt of civil causes, he is to serve the writ, to arrest, and to take bail; when the cause conies to trial, he must summon and return tlu' jury: when it is determined, lie must see the judsment of the Court carried into execution. In criminal matters h«' also arrests and imprisons; \io returns the jury, he has the custtnly of the delin2 Geo. II. c. 2S,* and by statutes It Geo. III. c. 50, and 24 Geo. III. c. 54, provisions were made for the better preserving the health of prisoners, and preventing the gaol distemper. In the Dominion several statutes have been passed affecting gaols to which attention should be directed. In Ontario the shei'itT has the care of the county gaol and its appur- tenances, and appoints the gaoler, subject to the ap- proval of the Lieutenant-Governor. The salary of the gaoler is fixed by tho county council, subject to revision by the Inspector of Prisons and Public Charities. The vast expense, which custom had introduced in serving the office of high sheriff, was grown such a burden to the subject, that it was enacted, by statute • Tliis statute is specially repeale'i by 55 Vict. c. 15 (Ont.) CHAP. I, Uehdive (Pnhl'ic). 229 13 & 14 Car. II. c. 21, that no sheriff (oxcopt of London, J;J * Jj Westmoreland, and towns which are conntieH of theni- ji. selveH) shouhl keep any tabh' at the assizes, except for his own family, or pive any present.s to the Judj;es or their servants; or have mort? than forty men in livery: yet, for the sake of safety and decency, he may not have less lliiin twenty men in Enjiland and twelve in Wales; upon forfeiture in any of these cases of £201). Sheriffs i{. s. o. in Ontario are appointed under the Great Seal of the'^-^''- province. Every sheriff must take the oath of allegi- ance, and also an oath of office that he will faithfully perform his duties, and that he has not in any way bought the office. Security is required for the proper fulfilment of his duties; a ! 'tional security may Ix' required, and a sheriff must give notice of the death, discharge, bankruptcy, insolvency, or residence out of the province of any surety or person bound for him within one month after the fact comes to his knowledge, and a new surety must be ap])ointed. Any person who sus- tains damage by reason of any default or misconduct of the sheriff may bring an action for such default or misconduct, and the sureties are liable to indemnify the party. No sheriff or deputy sheriff can directly or in- directly keep a shop or trade, or traffic or sell, either by wholesale or retail, or maintain an action for the price of any goods !-;old, except s-uch as by the duties of his office he is legally commanded or empowered to sell. No sheriff, dei)uty sh(Miff, bailiff, or constable, can buy any goods or chattels or lands exposed by him to sali? under execution. If any bailiff or constable entrusted with the execution of any writ wilfully misconducts him- self, or wilfully makes a false return, he, on conviction, may be fined or imprisoned in the discretion of the Court. If a debtor in execution escapes out of legal custody, the t sheriff or other person having the custody of the debtor is liable only to an action for damages sustained by the person or persons at whose suit the debtor was taken or imprisoned, and is not liable to any other action in consequence of the escape. If a sheriff wilfully makes any false return upon an execution, he is liable to forfeit his ofQce. On the delivery of a writ of summons to a I >J :ai)€s. ':', \n; :% y i Pi mm 2^0 h'hihls of rfrsiois I IVMll I iSorvicf iif WIJI I'f Coronor. shcvlir. Ih' or Ills «|r|»nt\ iimihI IihIimm' uii lln- wrll Hi" linir il wiis .l.'llv.ivd. If llif wrll Im iml i.n vr.l s\ i( liiii l<>n (liiVM Hi.' pliiintiir Im .miIIII.mI In ivrrlvc IIm' will hii-K. (Ii<> I Hcrvlrr of I lie Will llfhT iiiul tin- NiH'rilV iuiinI huloiNr IIk' llinr <»f «|('livrrv I i' nllowt'd IIM If 11: on (> SOVVKM llMll I IIM'tl 11 iiHl(> liv lli«» Hlifiiir. If :i Hliciiir, Ih'Iiim; iipplltii lo for ii wrll. ncjiiocl't or nfimcH lo rrlnrn U. Ilio |»lj»liililV iiiiiv Ishiic ii tliiplwiilo oi' roiiciir roiil wi'll Jiml nM'ovor llir «'osIh of IIiIh hoioikI writ iijinltiNl Ihc hIktIIV. Slu-rlirM niiisl Kocp llirlr ol1l closr on Snlnnlnvs at one o'clock. Sin riiVs ninsl I'xocuto niul r(>tnrn before tlio .iinljxo or .IikIk' ■< }>ssimu'rilV until ii new slierilV is njipointed. If a s!iU» for taxes has been made, the con- veyaiu-e mnst be niach' bv th«' sherilV or bv the rincipally lo do with ]deas o\' the Crown, or HU<'h wherein i\\v (^uetMi is more imnieiliately concerned. And in this light th<> l.m'd (^hief diistice is in r^ngland the principal «'oroner in the kinj^dom. and may (if he pleases) exercise the jurisdiction of a coroner in any part of the realm. This ofllico is of eqmil antiquity with that of shorilT; and was ordained tofjether with him to keep the l)oace when the carls fjavo up the wardship of the county. The office and powtn* of a coroner are also, like those of the sheritT. either judicial or ministerial; but princi- «IIAI'. «. ^ '2\ Urhiliir ( I'lihliri. 2:U |tllllV jiMlirilll. TIiIk Ih ill II ^ITIlt llirllMlilC IINII'llllilKMl IiV hIiiIiiIc I I'ldw. I,, "lie uniriu rondUllnl'lH '" ; lllwl roll 1 i;u, I." hInIh, lll'Ht, ill ilM|llll'ill^, WllCII IIIIV IHTHOII \h Mlllill, Ol' (\\vH HiMJilriilv, or ill prison, roiirmiiii^ till' iiiiiiiiin' of Ii'm ilculli. Aiiil lliiM iiiiihI lie " Hiipri' vIhiiiii rorporiH"; Tor il' till' ImmIv Im' iioI foiiiMl, IIm> roroiMT inilliol Hit. Aii*l il \h iiMliN|Mr lioiniiiili', lie in to roinniit tlii'in of tliis impiiHitioii (iindn* liis own wnl ;ind Hii' Hriilw of Hie jiiroiH), loj^cllH'r with llic I'vidi'iM'c tln'ri'on, lo Hie Court of (2ii('«'n> Itcni'li, or till' next iihhI/.i'H. I!iit n dcodniid, when it 4'xiHli'd, could not be iinpoHi'd by ii roroni'r'H jury upon llic iiiHlriiiiM'nt of ilcntli, wlicn tlicy found Hm' lioniii idc lind biM'ii f<'lonier of the records of the county. The common law has ever had a special care and regard for the conservation of the peace; for peace is the very end and foundation of civil society. And, therefore, before the present constitution of justices was invented, there R.S. o V. 217. .lustices tlu( jieace. / CHAP. I, § 2] Relative (Public). 23a were peculiar oflBcers nppoiiited by the common law for the maintenance of the public peace. Of these some had, and still have, this power annexed to other offices which they hold; others had it merely by itself, and were thence named '* custodcs " or " consfrvatores pacis." Those that were so virtute officii still continue; but the latter sort are suspended by the modern justices. Tin; King's Majesty is by his office and dignity royal, the principal conservator of the peace within all his domin- ions, and may give authority to any other to see the peace kept, and to punish such as break it; hence it is usually called the King's peace. In England the Lord (Chancellor or Keeper, the Lord Treasurer, the Lord High Steward of England, the Lord High Constable of England (when any such offices are in being), and all the Justices of the Court of Queen's Bench (by virtue of their offices), and the Master of the Kolls (by pre- scription), were generally conservators of the peace throughout the whole kingdom, and might commit all breakers of it, or bind them in recognizances to keep it; the other Judges are only so in their own Courts. The coroner is also a conservator of the peac(; within his own county, as is also the sheriff, and both of them may take a recognizance of security for the peace. Consta- bles, tithing-men, and the like, are also conservators of the peace within their own jurisdictions, and may appre- hend all breakers of the peace and commit them till they find sureties for their keeping it. As the office of these justices is conferred by the How ottiro Lieutenant-Governor, representing tlie Executive, so it |J[Ji\!""'°" subsists only during his pleasure, and is determinable: 1. By the demise of the Crown, that is, in six month.s after. But if the same justice is put in commission by the successor, he shall not be obliged to sue out a new dedimus, or to swear to his qualification afresh; nor, by reason of any new commission, to take the oaths more than once in the same reign.* 2. By express writ under the Great Seal, discharging anj- particular pe-- • As the appointment of Justices of the Peace is a matter of prern- ^ative, it is doubtful whether their commisBions do not terminate with the decease of the Sovereign. See B. S. O. c. 15, s. 2. (■ i| : , i I 1 :! ■ 234 Rii/hts of Persons [I'AUT I son from being any longer justice. 3. By superseding the commission by writ of supersedeas, which suspends the power of all the justices, but does not totally destroy it; seeing it may be revived again by another writ, called a procedendo. 4. Hy a new commission, which vir- tually, silently, discharges all the former justices that are not included therein; for two commissions cannot subsist at once. 5. By accession of the office of sherill' or coroner. Formerly it was thought that if a man was named in any commission of the peace, and had after wards a new dignity conferred upon him, that this determined his office; he no longer answering the description of the commission; but now it is provided that, notwithstanding a new title of dignity, the justice on whom it is conferred shall still continue a justice. The ex officio Justices of the Peace in Ontario arc ,1he Judges of the Supreme Court of Canada, of the E>l- chequer Court, and of the Supreme, Court of Judicature for Ontario. The head of every council and the reeve of every town, township or incorporated village are also justices of the peace ex officio, and also aldermen in cities. The property qualification for a justice of the peace in Ontario is the possession of land or leaseholds, not less than twenty-one years, of, or above the value of twelve hundred dollars, bevond incumbrances. It must be remembered that no solicitor can be a justice of the peace and continue to practice as solicitor. fiion'of'^ The power, office and duty of a justice of the peace justice of depend on his commission, and on the several statutes w lich have created objects of his jurisdiction. His \ commission, first, emi)owers him singly to conserve tlie [peace, and thereby gives him all the pov/er of the ancient conservators at the common law, in suppressing riots and affrays, in taking securities for the peace, an«l in apprehending and committing felons and other infe I rior criminals. It also empowers any two or more to I hear and determine indictable and other offences ; which is the ground of their jurisdiction at Sessions. In England licensing ale-houses, and the appointmer.t ■ , ' ? 'M €HAP. I, § 2] Relative (Public). 235 of overseers and surveyors of tlie highways, also formed part of their varied duties. And as to the powers given to one, two or more justices by the several statutes, which from time to time have heaped upon them such an infinite variety of business, so that few care to under- take, and fewer understand the office; they are such and of so great importance to the public, that the coun- try is greatly obliged to any worthy nmgistrate that, without sinister views of his own, will engage in this troublesome service. And, therefore, if a well-meaning justice makes any undesigned slip in his practice, great lenity and indulgence are shown him in the Courts of law, and there are many statutes made to protect him in the upright discharge of his office; which, among other privileges, prohibit such justices from being sued for any oversights without notice beforehand; and stop all suits begun, on tender made of sufficient amends. P.ut, on the other hand, any malicious or tyrannical abuse of their office is usually severely punished, and all persons who recover a A^erdict against a justice for any v.ilful or malicious injury are entitled to double costs. .Justices are allowed fees and must repoH all convictions. Other subordinate magistrates are police magistrates and county Crown attorneys. Police magistrates have authority when appointed in cities and towns to do alone what may be done by any two justices of the peace, and may also try prosecutions for offences against by- laws, and for penalties for refusing to accept municipal office or to make necessary declarations of qualification and office. In cities and towns the council must estab- lish a police office, and the police magistrate must attend there every lawful day. In cities with over 40,(>0») inhabitants a deputy poli<'e magistrate may be appointed. In all cities a second police magistrate may be appointed on a two-thirds vote of the council requesting such ap pointment. A county Crown attorney is appointed in each county of Ontario. His duties are to superintend the busi- ness of the Sessions; examine informations; institute r(;lic.- trMtt;s. H. S. O. c. 71'. .^5 Vict. c. t2, st'cs. i;<2, 43;i. '>7 Vict. o. •-ft. •"i'i Vict. c. County f'rowu Attnrnev, K. s. o: V. Tit. TS) ;? ! itil n tRi 236 Rif/hta of Persons [part I lit Coinmis- Nioners of police. W. H. O. c. 81. S.'i Vict. c. 42, Hpcs. \M to 4.")1, County coii8t;il)I»>s. K. S. O. e. 82. 59 Vict, c. 2(i. Provincial con.staljlcs. .% Vict, c. 1!). prosocutions at the Sessions; conduct summary pro- ceedings before justices of the i)eace where the public revenue is concerned, and, finally, advine the justices of the peace in respect to criminal oflfeuces brought before them.* Commissioners of police are appointed by the Dominion, and are given the same powers in Ontario by the province as have police magistrates and justiccH of the peace. In cities, boards of commissioners of police an? appointed, whose duty it is to nmke regulations for tlu? government of the police force. The city council has the right to appoint a chief constable, and of determin- ing how many constables are necessary, but the commis sioners have the power of ap])ointment and removal. In towns there may also be boards of police commis- sioners, with the same powers as those appointed in cities; but where there are no such boards, the town council makes the n<»cessary appointments. Police of- ficers may now take bail in cases within the cognizance^ of provincial jurisdiction. I shall next consider some officers of lower rank than those which have gone before, and of more confined jurisdiction, but still such as are universally in us,' through ever}- part of the province — namely, constables. County constables in Ontario are appointed by the justices at the General Sessions of the I'eace, or by the County Judge. When appointed they serve for one year, and then, subsequently, from year to year without reappointment, unless they claim exemption, when tht'y are released at any time after the first year. A county high constable is also appointed by the county council. Provincial constables, that is, constables for th' whole province, are. appointed by the Lieutenant-Gov- ernor. • A Crown Attorney is specially appointed for the City of Toronto aa distinct from the County of York, for which municipality a separate Crown Attorney is also appointed. Jf*' <'HAP. I, § 2] licliifive (Pvhlic). 23- The jn'iionil duticH of all eonHtables, both hi^h und J*',',^J^^^'',','J^ petty, aH well aH of the other olllcers, Ih to keep the Kin^'H pea<'e in their several districtH, and to that pur y)Ose they are armed with very larp' powers of arrest ing and imprisoning, of breaking? open houses, and the like. By statute 24 Geo. II. e. 44, no action shall b** brought against a constable for anything done in obedi i'Hce to a magistrate's warrant, until demand has been made of a perusal and copy of the warrant, and that demand lias been neglected to be complied with for the space of six days. Constables nuiy also arrest witliout warrant for alleged breaches of the peace not com- mitted in their presence, under urgent circumstances, and provided tne complainant gives satisfactory seen rity to appear to prosecute. One of their principal duties, arising from the Statute of Winchester, which appoints them, is to keep watch and ward in their respective jurisdictions. Ward, guard, or " custodia,' is chiefly applied to the daytime in order to apprehend rioters and robbers on the liighways; the manner of doing which is left to the discretion of the justices of the peace and the constable; the hundred being, however, answerable for all robberies committed therein by daylight, or having kept negligent guard. Watch is properly applicable to thi? night only (being called among our Teutonic ancestors " wacht " or " wacta "), and it begins at the time when ward ends, and ends when that begins; for, by the Statute of Win- chester, in walled towns the gates shall be closed from sun-setting to sun-rising, and watch shall be kept in every borough and town, especially in the summer season, to apprehend all rogues, vagabonds and night- walkers, ('ounty constables ai'c subject to tlie inspec- tion of the inspector of legal offices. ! 'H 1 tt! I >l ^'M^;iJ ■ ! \\\: tl i*! I J 238 Ilifjliti^ of Persons [part 1 Statutes Relating to the Foregoing Subject -tf Subordinate Magistrates. R, S. 0, ivith Amendments. Mil PAQR 225.. Sheriffs— c. 16, 1888 c. 6; 1889 cc. 6, 10; 1892 co. 5, 6, 15, 17; 1893c. 5 18!)4 c. 10 ; 1890 c. 4. 228.. Gaolers— 55 Vict. c. 42, sees. 404, 465. 230. .Corone-8— c. 80, 1891, c. 37 ; 1894 c. 31 ; 1895 c. 17. 232. . Accidents by Fire— c. 217 ; 1891 c. 37. 232. .Justices of the Peace -c. 71, 1891 o. 16. See also 55 Vict. c. 42, sees. 415 to 419a. 235.. " " Protection of— c. 73, 1890 0. 23. 235.. " " Returns by— c. 76. 235.. •• " Fees of —0.78. 235.. Police Magistrates— c. 72, 1888 cc. 10, 12; 1892 c. 16; 1894 c. 28. 235. .Deputy Police Magistrates— 1894 c. 29. 235 .. Returns by Police Magistrates— u. 77. 235. .County Crown Attorneys— c. 79, 1891 c. 17 ; 1893 c. 19. 236. .Dominion Police Commissioners— c. 81. 236.. Police Commissioners— 1892 c. 42, sees. 434-451 ; 1896 c. 51, sec. 31. 236.. Provincial Constables — c. 82, sec. 10. 236.. High and County Constables— c. 82, 1896 c. 26. 236. .Bail by Constables— 1896 c. 27. CHAP. I, § 2] Relative (Public). 23<) CHAPTER I. SECTION 2— Continued. RELATIVE RIGHTS OF PERSONS (PUBLIC). Thk People — Havino Discussed the Suh.iectof THE MaOISTHATEH, THE PeOI'LE FOltM THE next BuHJECT. People are either Aliens or NATURAL-noiiN Suhjects. Aliens — Expatriation. Repatriation. Naturalization. Indians. Indian Department, mode of management of Indian affairs. Advance of Indians to full rights of citizenship. Enactments specially relating to Indians. The People are Either Clergy OR Laity. No State Church in Ontario. The Laity ark either Civil, jMihtary, or Maritime. TlieCivil Stateincludes Nobility and Commonalty. Defjrees of Commonalty. The Militia reprtsent in Ontario the Military State. The sailors on the inland lakes represent the Maritime State. Other divisions of the civil state are special professions. Physicians and surgeons. Land surveyors, architects, den- tists, drufjf^ists and veterinary sur<^oons. Farmers. Department of Agricnlture. Workinf^men. Having now treated of persons as they stand in the public rehition of masistrntes, I now proceed to con- sider such persons as fall under the denomination of the people. And herein all the inferior and subordinate majfistrates last treated of are included. The first and most obvious division of the people The I is into aliens and natural born subjects. Natural bornP*'°P subjects are such as are born within the dominions of ^liengj^^d the Crown of En{?land ; that is, within the ligeance, or, IJ**'"''*^, i as it is generally called, the allegiance of the King; and jects. aliens, such as are born out of it. Allegiance is the tie, or ligamen, which binds the subject to the King, in re- turn for that protection which the King affords tho subject. Canadians, being British subjects, owe allegiance to the King of Great Britain. The Governor-General, the Lieutenant-Governor and every member of the Sen- 's j * ,. IS If 1 240 lii(jh(» of I'n'Hohs I I'Aitr I Oivth (>f »ll* nto or Hons«> of roinnioiiH, or of i\w IM'oviiiriiil liCffislu ttsi'c, iniiHt take >iii oalli of nllfffijinci' in tlu> followiiip wohIh: wliicli >v<'r(> iidopti'd in Knjjhind nt tlii' time of (lu> K(>volnHon of ICSS: " I, A. |{., do Hwviw (lial I will ho fnithfnl nnd Immii' (nic nit«>)<:ian(M> lo llcr .MnjcHty QniM'ii Vii'lorin." SnbHiihilinf; llu' nanic of the Kinp; oi- (jn(>(>n for (lie (in\o lH'in^^ rnhlic ollit'ials, in liotli ho- ininion and I'rovinrc, i\n alt'4'ad,v slated,* arc r(>(]nir<. Tin* Dominion IniH ailso pre Hcrilu'd a form of oalli lo bo lakcn on all o('<-aHionM ex copl for llu' pnrposcs of llio I?rilisli Norlli America Ad. The corrcHpoinlinji: lOn^liish oath nni.v by oiirl.v sla tnio bo londerod by any two jnsliccH of ilio poaco lo any jxM'son whom llioy may HnHjuM'l of disalVociion. Hnl, bosidcH |Ih's<' express enpajjeinenls, the law also Iiolds Ihat (here is an implied, orip;inal, and virlnal aillej^iaJiee owin^ from evi'ry subjecl to his sovoreij^n, anleeed«>nlly lo any express promise; and allhou^h llie subject never swore any failh or alle}j;iance in form. Allegiance, bolh express and implied, is howeviM* distiiifjnishcd by Ihe law inio Iwo sorls or species, the one natural, the other lo<'al; tin' fonner was until ISTd <'onsidered ])eri»etual, the laller t Act. It iH also (h'rian'd (liaf loni('H may k'^iHla<(> with n'H[)(M't. lo naliirali/iaHon. Tli(> I*a.i'liani<>nf of IIm' Dominion, liavin^ undor tlw nriliHli Norlli America Act Hm' cxcIuhIvc I'i^hi to lojfiw- h.tf aH (<» nalnrali/.ation and aliciiH, lias laid down liic following imiIoh: 1. lOxpat rial ion. Tho Kinjf iH empowered (o enWT info a conven- tion with any foreign Klate lo (lie elTe**! (hat the Huh- jectH of that Htate who are na(urali/.ed as ItridHh Hub- jectH may divcHt (hemselveH of their Htatiis as HritiHli Bnhje(>(H; an order in coun<-il nniHt then be pawHed de- clann^ (hat the conven(ion liaH been duly <'ntered into. When thiw in done, any j>erson originally a Hubject of the foi'(0}jcn Htate who liaH been naturalised aH a liritinh Hub- je(;t within (7ana a declaration of alienage; when he doen ho Ik' Ih within Canada regarded as an alien, and as a Hubject of the ntate to which lu' origin- ally belonged. Tlu? d<'claration may be made bef(n'«* any Judge or juHtici? of the peace, or any other otli(!er for the time being authorized by law to adminiHter an oath for any judicial or other legal purpoHo. Any pernon who by reuHon of his having iM'cn born within the do minion of IIIh IMajesty is a natiiral born Hubject, but who alHo at the time of his birth became under the law of any foreign state a subject of that state, and is still its subject, may, if of full ag(? and not under any dis- ability, make a similar declaration of alienage; dis- ability means tlio disability of being an infant, lunatic, idiot, or married woman. Any person who is born out of His Majesty's dominions of a father who is a IJritish subject may, if of full age and not under any disability, make a similar declaration; the etfect of tlu; declara- tion is that the i)erson making it ceases to be a British subject. 2. Repatriation. , Any British subject who has at any time after the 1 4th of July, 1883, when in any foreign state and not K.D.— 16 II. N. A. Airf, H. )»I, No. -jr.. Kxpnti'iu- tiiiii. |{. H. C. v.. 1 1.1. R#|)atr;a tion. i t lit ; ' t h" 212 Nutiiml- ixntioii. RIfflits of Persons I'AUT I nnclor un.v ^liwiblUly, voliinlnrll.v Immmhiic iiiUiinili/rd in (liiil H(nl«' In (IcniMMl williin riiiUMl]i (o luivr (tusimI to Im> ii ItrUiHli Hiihjcct, hikI hIixII Im> rc^nnlril iih tin nlicii. WiHilii (wo ,v«'jirH Jifirp i\\v U\\ of .hil.v, lSS:i, ii pcrHon who WHH t\ (l<>cl]ini(ion Huit li<> wiih dcHirouH of rcnuiinin^ n ItritiHli Miilijn-I ; n|M>n ho doinf^, li<> n' nniiniMl » KriliHli Hulijorl williin <'anii (lovornnu'iil of (^iiiiiMlii, or of jin.v of Ihc provinces of rnnndii for n Icrin of nol Ichm IIdiii llin-c .yonrs, and inlondH wIumi nnlunili/'cd oillwr 4o rcsidr in rnniidii or to Horvc niMh'r I ho (JovcrniiK'nl, nin.v horonu' n JtriliHli Hubjccl. To do HO h(> iiiuhI lake an oalli of r<>Hidonc<> an Im* ii hiMi jcrl (»f (lir old Hl ill |Mii'Hiiiiiirc ol' ilw Iiiwh or in |iiir HiiniK'c of HuiiH' Irt'iily or j'onvnilion. A HpiTial (mtII- llriit<> or iinhii'iili/.iilioii iiiiiy be ({niiilcil (o uii.v pcrHoii wiHi i'«'H|M'cl to wlioHr iintioii]ilii,v jih ii KritiHli Hiilijcct liny (Ioni»< «'xIh1h. Tin- tjrjinliiij; of tin* HixTiiii (M-rlin riitc in iiol niiy iMliiiiHHion tlinl I lie |mtmoii to wlioiii it was ^nintcd wiiH not prcvioiiHly ii lliitisli Hiihjcrt. A Htatii lory Jilicn iiiiiy apply to tlic proper Court or antliority for n ccrtilicatc of re adiniKHioii to UritiHli nationality ic admitting liini to tli<' statnH of a ItiitiHli Hiilijcct within ^'iiiiada; when tliiH ccrtiticatf \h granted the pcrHon to whom it Ih iHHiird from its datr icHumcs hiH poHition >ih a MritiHli Nnl>ji>('t within Tanada. Jf a fon'ip;n Htatc has ^-iitcrrd into a convention that the HuhjeitH of that Htafe wii(» have been natnralixed aH KritiHJi HnhjerlH may di vi'Hi theniHelveH of their HtaliiH aw HiibjeclH of the foreif^n Htate; and when the convention ren(;(! in (Janarvi(;<^ in (Canada of more than three yeai'H, then an alien who deHirew to divcHt hiniHelf of his HtatiiH aH a foreif^n Hubje<;l of that Htate may, iiiHtoii,. of taking; the ojith Hhowinj; three yearn' rewidenee or 8(M'til)«-n(<> of rr-iMliniHsion to ItriliHli luitioiiiility, then ovrrv cliihl of tlnil fiillii'i- or inotlici* who dnriri}^ infiiiicy liMH bc4MMno a rrnidt'iit in raiuHla with sikIi father or ino(h(>r \h dt'cincd to have roiiiainod in tiif ])ositi(>ii of a ItritiHh Hiibj<>(t witliin Canada. If the father, or uioth<>r who iH a wi(h>w, haH obtained the (^ertlMente of uatnrali/.ation witliin <'anada, every cliilil of liiat fat Iter or niotlier wlio dnrin}^: infancy haH become resident with the fatlier or niotlier in <lopment. Their rijjjlits ai'e carefully {guarded, and it will now be our duty to examine what jirovisions the law lays down in this din'ction. V>\ the IJritish North America Act the Indians are conllded to the care of tile Dominion. We have seen that the l*r(»vince lia» lej^islated as to their exercisi? of the provincial fran- chise. The Dominion rarliament has also, as we have seen, i^iven Indians a vote under certain restrictions. 1 now proceed to state the rules laid down rejijarding their social condition, and what provisions have been made to enable them to assume the rights of full civilized citi/ u- ship. The Minister of the Interior is Supe adent- ^f General of Indian Affairs, and as such has c> rol and * A denizen is an alien born who has obtained letters patent, to make hiii an English subject : "a high and incommunicable branch of the royal i)rei>.Lr(i- tive," according to Blackstone. Letters patent cannot Ixi granted in the Do- minion to give an alien the privilege of being a denizen, because the Crown has assented to the Act conferring \\\v.\n the Dominion the sole right to legislate respecting aliens and naturalization in Canada. IHAP. I, § 2] Relative (Puhlih). 'i45 mniinf^i'incnt of Ihc IjiiuIh nnd property of tin* Indiana in (^unjulii. A dcpnrfincnt of tluM-ivll Mcrvlcc m railed IIk* DrpiiHiiu'iii of Indijm AITairH, ovor which I ho Huprr intended (lononi I ]M'OHidoH. Indians an- Icnislatod for by "bands." A !)and is any tribe, band, or liody of Jn dians, wiio own or are intereslcd in a resorve, or in Indian lands in «'oninion of which the lefjal title is voHted in the Oown, or who share alike in the distribution of any annuities or interest nion<'ys for which the (Jov- <'rnnient of t'anada is responsible. An irregular l)and means any tribe, band or body of persons of Indian blood who own no inten'st in any reserve or lands of which the lef^al title is vested in the Crown; who ]>osse8s no coninion fund nianaK<'d by the Oovcrn ment of (Canada, and who hav<* not had any treaty rela tions with the ('rown. An Indian is any rafih? person of Indian blood reputed t(» belong to a particular l)and; any child of such person; any woman who is or was lawfully married to any such person. Any ille<^iti mate child mi\y be excluded from the membership of a ]»and unless he has with th(» consent of the band shared in the distributi(m moneys of the band for a period ex ceedinpj two years. An Indian who has for five years /continuously resided in a foreijj^n country without the ' consent in writing? of the Superintendent-CJeneral or his agent ceases to be a member of the band of which he was a member; he cannot again become a member un less the consent of the band is first obtained. Any Indian woman who marries any person other than an Indian, or who marries what is called a non-treaty In- dian, that is, any person of Indian blood who is repu- ted to belong to an irregular band, or who follows the Indian mode of life, ceases to be an Indian within the Act, but she remains entitled to share efjually with the members of the band to which she formerly belonged in their annual receipts. Any Indian woman who marries an Indian of any other band, or a non-treaty Indian, ceases to be a member of the band to which she formerly belonged and becomes a member of the band of which her husband is a member. Indians ar«? iii^' 246 Reserv. Wills by IndiaiiH. Indian's widow, TrespaHK- enon Indian landB. Rights of Persons [PAUT I placed upon reserves. No Indian is deemed to be lawfully in possession of any land in the reserve unless he is located by the band or council of the band with the approval of the Superintendert-General; a location ticket is then issued in his favour. Any Indian holding under location ticket or other duly recognized title any parcel of land upon the reserve of his band, or upon a re- serve of any other band upon which he resided at the daiv' of his death, has the power of devising this land by will; he may also bequeath his personal effects or other pro- perty; the devise or bequest must be to such member or members of his family or relative or relatives as he chooses. The will must be consented to after his death by the band owning the reserve, and must be approved of by the Superintendent-General; the devise must not be to any relative who is not entitled to reside upon the reserve, or % ho is further removed than a second cousin ; if not assented to or approved of, the Indian is deemed to have died intestate. Upon the death of any Indian in- testate, his right and interest, together with his goods and chattels, devolve one-third upon his widow, if any, if she is a woman of good moral character, and living with her husband at the time of his death ; the remainder passes to his children in equal shares if they are In- diana within the meaning of the Act. During the minority of the children the administration and charge; of the land and goods and chattels devolves upon the widow; she may at any time be removed by the Superin- tendent-General, who may transfer the charge to any other person. If an Indian dies ^ ihout issue leaving a widow, his land and his goods and chattels are vested in her; if he leaves no widow, then they are vested in the Indian nearest of kin to the deceased; if he has no heir nearer than a cousin, they are vested in the Crown for the benefit of the band. The Superintendent-General decides all questions which arise respecting the distri- bution. No person or' Indian other than an Indian of the band is allowed to settle, reside, or hunt upon the re- serve of the band; all mortgages, or leases or agree- ments to the contrary are void. Trespassers may oe removed by the Superintendent-General or his deputies; CHAP. I, § 2] Relative (Public). 247 they may also be fined and imprisoned. Indians may be required to perform labour on the public roads through their reserve; this labour must be performed under the uole control of the Superintendent-General or his depu- ties. Every band of Indians must keep the roads, bridges, ditches and fences within their reserve in proper order. If, by the violation of any of the conditions of any Indian trust, the title to any reserve iaiises or becomes void in law, the legal title becomes vested in the Crown in trust, and the property must be managed 'for the band or irregular band which had been previously interested in the reserve as an ordinary reserve. No release or surrender of a reserve is valid or binding except on the following conditions: It must have been assented to by a majority of t' e male members of the band of the full age of twenty-Ci>e years at a meeting of the council summoned for the pur- pose according to the rules of the band, and held in, the presence of the Superintendent-General or a deputy. No Indian is entitled to vote or be present at this Indian council unless he habitually resides on the reserve and is interested in it; the assent must be certified on oath by the Superintendent-General or presiding officer before some Judge-; when the assent has been certified the re- lease or surrender must be submitted to the Governor in Council for acceptance or refusal. When Indian lands Saies of are sold or transferred the proceeds are applied for the i^JJjJj"" benefit of the band. Every patent for Indian lauds must be prepared in the Department of Indian Affairs, and must be signed by the Superintendent-General or his deputy; it must also be registered by the Registrar- General, and then transmitted to the Stcretarv of State for Canada, by whom it must be countersigned and the Great Seal affixed. Whenever patents for Indian lands have issued through fraud or any error, or improvidence, the Exch'iquer Court of Canada, or a superior Court in any province may decree the patent to be void. The Superintendent-General may grant licenses to cut timber on Indian reserves. No license can be granted for .i longer period than twelve months from its date; it must particularize the rights of th<' holder of the license in t . ' i* ■\u I' i ■ '|1 < ■! ^■'l : 248 Chiefs. Schools Rwstric- tidiit on dimlin^B with In- dians. Rights of Persons [part I every respect. All trees cut are liable to payment of dues and may be sold for non-payment; trees cut with- out authority on Indian lands may be seized. A claimant may file his claim within one month from the day of the seizure. All Indian moneys must be applied for the benefit of the Indians on the saine principles r« Indian lands. Whenever the Governor in Council deems it ad- visable for the good government of a band to introduce the system of election of chiefs, he may provide that the chiefs be elected at such time and place as the Superin- tendent-General directs. The chiefs may be elected for a term of three years, but may be deposed by the Gov- ernor in Council for dishonesty, intemperance, immor- ality, or incompetency; they may be in the proportion of one head chief and two second chiefs or councillors for every two hundred Indians; no band can have more than six head chiefs and twelve second chiefs, but any band composed of thirty Indians may have one chief. The chief or chiefs of any band or council may make regu- lations as to the religious denomination of the teacher of the school on the reserve; the minority may also have a separate school; the internal economy of the tribe is also under the management of the chiefs. No Indian or non-treaty Indian is liable to be taxed for any real or personal property, unless he holds in his indi- vidual right real estate under a lease or in fee simple, or personal property outside of the reserve ; in that case he is liable to be taxed for that property as other per- sons. No person can take any security, or obtain any lien or charge upon real or personal property of any Indian, except on real and personal property subject to taxation, as just mentioned. Indians have the right to sue for debts or in respect of torts, or to compel the performance of obligations contracted with them in any suit or action between Indians, or in any case of assault in which the offender is an Indian. No appeal lies from any judgment, order 'or conviction, by any police magis- trate, stipendiary magistrate, two justices of the peace or Indian agent, when the sum in question does not ex- <*eed flO. No pawn taken from any Indian for any intoxi- cant can be retained by the person to whom the pawn ■■ t% CHAP. I, § 2] Relative (Public). 249 is delivered. No presents given to Indians, and no pro- perty purchased or acquired by means of any annuities granted to Indians and in tlie possession of a band, can be taken, sei/.ed, or distrained for any debt or cause. When a male Indian or unmarried Indian woman of the full age of twenty-one years applies to be enfran- chised the procedure is as follows: The Superintendent instructs tlie agent of the band Knfran- to call upon the applicant to furnish a certificate under oath by the priest, clergyman or minister of the religi ous denom (isrtion to which the ai)plicaut belongs, or by a stipendin'v magistrate or two justices of the peace, that the applicant is, and has been for at least Ave years I)reviousl3', a person of good moral character, temperate and of sufficient intelligence to be qualified to hold land in fee simple and otherwise to exercise all the rights of an enfranchised person. Upon receipt of the certificate the agent submits it to a council of the band of which the applicant is a member; he must inform th(» Indians assembled jit the council that thirty days will be given within which objection to the enfranchisement can be made. If the Superintendent-General decides in favour of the applicant he may grant him a location ticket as a probationary Indian. Every Indian who is admitted to any degree by any university, or who is admitted to practice law, or who enters holy orders, may, upon peti- tion to the Superintendent ipst) facto be enfranchised. The Superiiitendent-(}eneral may give an enfranchised Indian a snitable allotment of land. After the ex- I>iration of three years, if tl,< conduct of the Indian has been satisfactory, the (lovernor in Council may, on the report of the Superintendent-General, order the issue of letters [)atent granting to the Indian in fee simple the land before allotted to him. Power to sell, lease or otherwise alienate the land is forbidden, except with the sanction of the Governor in Council. Ix^tters patent to an Indian must declare the name and surname which he has chosen; if he is a married man, his wife and minor unmarried children arf AiJso held to be enfranchised from the date of the- \'' r-J 250 RlglUa of Pertions [I'AIIT I KuruiHli- \u(( iiitoxi cants to In tliiuiM pro iiibitod. Evid.iu'o of IiuliaiiN liDW rv- »'ivei1. issuo of theso letters patent. Any distinction between tlie lep;al riglits and liabiliti(>s of Indians and those of His Majesty's other sul)j<'ets «'eas»^ to apply to the »»n- franchised person, or to his wife and minor unmarried children. If a lU'obationary Indian fails in (lualifyinfjr to become enfranchised, his claim is the same as that conferred by an ordinary location ticket. An Indian may become entitled to his share of the moneys of the band in the same way as to an allotment of the hind. Very careful provisions are made in the direction of the preventin}; of furnishinj? intoxicants to Indians. Any I('t(> in liis time. L*. Knijjiits and baronets. Tliese weiv names of di}?nity, esquires a'*;l f^entlenien beinj? only names of worsliip. But before tliese last, tli(^ luM'alds rank all colonels, sor jeants at law, and doctors in tlu' three learned profes sions. lilackstone (hen enuniei'ates four sorts of es^juires. but I must i)ass them over. As for j;<'ntle!nen, '* who- (untle- " soever stndieth the laws of the realm, who studioth in " the univei'sities, who professeth the liberal sciences " and (to b(» shoH) who can live idly and without manual *' labour, and will bear the port, charge, and counte- " nance of a {?<'ntlenuin, he shall be called mast(?r, and " shall b(.' taken for a f^entleman." A yeoman was a man who had free land of forty shillinfrs by the year: who was anciently thereby quali- fled to serve on juries, vote for knights of the shire and do any other acts, where the law requires one that is Yeonun. probus et lej^alis homo. The rest of the commonalty are tradesmen, artificers and laborers, who, as w<'ll as all Resiflue. others, must, in pursuance of the Statute of 1 lien. V. c. 5, be properly styled in all lep^al proceediuffs.* The 1 H.ni. V. philosophy or the m^cessity of these social distinctions I will not attempt to discuss. Th<> sole distinction recojjnized in our time and country seems to l)e that of wealth, and to that all others bow. The military state includes the whole of the soldiery, or such persons as are peculiarly appointed amou}; the rest of the people for the safe}»uard and de- fence of the Dominion. For this purpose we in Canada rely not on a standing army but on our militia. The command-in-chief of the land and naval militia r x a and of all military and naval forces of and in Canada is Act. sec. vested in the Kinji^, and is exercised by His Majesty personally or by the Governor-General as his represen- tative. The Department of Militia and Defence is re- sponsible for the administration of militia affairs, and • Tho Court of Common Pleas m England refuRod to hear an affidavit read because a barrister named in it was not called an esquire. 1 WilB. 244 (Cbristian's note). « p w 254 Militiiv, liow fciriii «(1, R. S. militia is sninniomd jin a witness and nialvcs ilcfiinlt in attt'ndin^' oi* refuses to tiilvc an oatli, or alliiins or refuses to produce documents, ov refuses to answer liiwful (jueslions, <»r is guilty of any contem|>l of Court, tlie president ( f tlie court imirtiiil nmy certify tlie defunit, refusal or contempt to a »Tud}i;e of any Court of .Justice in the locality liavinji; power to punish persons jjnilty of siich olTences; on inl;ickstone siiys, "much more afjrernble to otir t''"^' «'^ate. " free constitution. The royal navy of Enj^Iand hath "ever been its j^reatest defence iind ornanuMit; it is its "ancient and natui-id strenffth; the tloatinfj: bulwark v rclntinjx lo occnn nnvinaUon, nw only for a Hliort diHtancc on our nortlicni border do we reach the ocean, and our whoreH there aiford but bIuiUovv anchoraj^e. Uxii our Houthern border lies along the Great Lakes, and it is necessary for us to know the law relating to shippiuju; A rAl "" t''«Me lakes. The IJritish North America Act assigns Noh'. yi io| to the Dominion the following maritime subjects: — 11. (1) Iteacons, liuoys, Lighthouses and Sable Island. (2) Navigation and Shipping. (.'{) Quarantine and the ICstablishment and Main tenance of Marine Hospitals. I propose, therefore, to state the substance of sudi of the Dominion enactments as are necessary for us in Ontario to be acquainted with. The two subjects most alfecting us on this point are: (1) The Hegistration of Ships. (2) Seamen on Inland Waters. Every ship, propelled either wholly or in part by steam, whatever her tonnage, and every ship not I)ropelled Avholly or in ])art by steam, of more than ten tons burden, and having a whole or fixed deck, may be registered under the ^lerchant Shijjping Act of 1854, or the Canada Registration Shipping Act. If not registered she is not recognized as a F.ritish ship or admitted to the privileges of a British ship in Canada. No otticer of customs can grant clear- ance to any ship required to be registered, for the purpose of enabling her to proceed on a voyage, unless the master, upon request, produces a proper cer- tificate of registry. If a ship attempts to proceed on a voyage as a British ship without a clearance, she may be detained. Registers for shipping are provided at the ports of Canada for the purpose of registering ships. Changes in names of ships may be made on the registry. Whenever a shipping casualty happens any- where in the case of a ship registered in Canada, or within the limits of Canada in the case of any other British ship, the master, or if the master is dead, the chief surviving oflficer, must, within twenty-four hours of his landing in Canada after the happening of the casualty, attend the principal officer of customs; he must submit himself for examination, and if he makes 'I'^T xl. iiM to (IrMliiifjH Willi sriniM'ii ciijUKil v in wliifli llio s;iiior is to sorvo. (ho iinionnl «tf his \mi;;('H, iind I'o^uhKions tis lo conducl ; il nnisl :i)so ho ni rnoil in (ho prosoiuo of m wilnosN. Kuiuiinji ji^M'ooinoiilH- lUJiy ho in;uIo \vi(h (ho ci'ow. (o oxlond ovor (\V() or more voviiiK's (ir for !i •spocKlod (iino; (ho linii( of (hcMo jii;roo HioiMs is oifilU inoudis from (hoir i]i\{{\ or llio lirs( jir '•ivnl of llio sliip Ml Iior |hm'( of dos(in;i(ioii iif(cr (lio (rr !iil;(ii(i«)ii of (lio jiiiroonioiH »»r (Iio disclinri^o of nii'jxo t'onsotjuoiU upon (ho iinivjil. Any iiiiislor of :i shi|> w Ijo ciirrioN niiy soaiiKm \vi(hon( siioh jiii nj:i'ooiiio!i( is li;Udo (o ;i p(>n;il(y no( oxcotMliiii'' ."jfLN). Any HOJinuin who h;is signed nn ;i^roonM'n( jind is dis«'hji!'^<'d bol'oro (ho ((Mnnionoonioid of tlio voyaji'o or boforo one nnMilli's wji.ms Mio oiirnod. wi(lion( fjnd( on his p;\f( jus(ifyinii- tht> disthiU'ii'o. ;uid widioni liis «'onson(, is oidilh'd (o rocoivo. in !iddi(ion (o iiny wnji'os ho luis ( nrnod, coni- jtonsiUion no( oxooodinj; ono month's wii};os. If llio sorvicc of iiny s(>jnn;M) is torminntod boforo (ho jioi'iod n>ntomplai(>d in tho a.^roomonl. by rojison of tho wreck or loss of (ho ship, oi* by reason of his having been b>ft on shore at any plaee on at'connl of his nnlitness or inability to jtroeeed on the voyaj^c. he is ontilled (o wa.U'es for (he time of serviei* r.p to tho formination. bnl not for a.ny fni-ther ])eriod. If a seaman is, by reason of illness, incapable of performinj;' his dnty, and it is proved th.-it his illness has been caused by his own wil- fnl act oi defanlt. he is not en(i(led to wajres for (lie tim(> dnrinii' which, by reason of his illness. In- is inca pable of performinir Ins dniy. A seaman who is eii- ^aued for a voyaixo or eniiaiitMuent. which is to terminate in Canada, cannot sm* in any Conrt ont of Canada for wasri's unless he is dis<'liariied with the written cons(Mit of the niastei*. or prov(\s ill-usaji:e. wa -rani in}; reasonable ap])rehonsion of danjjor to life. If any seaman on ln» return to Canada proves such conduct, he is entitled to recover, in addition to his wajres, compensation not exceedinsx eijihty dollars. Masters an;' seamen are ^•MAI'. I, ^ 2] Kcliil'irr (J'lih/ir}. J»il liii.l)Ut in Hiiinniii.i y |iiiiiiHliiiiii)t lor (iIT«'Ii<'(;m ainiiiiHi liii(>, Hiirli iiH rorc('«l; lie iiiit.v hike liitii licl'oi'r ii ( 'onrl, iiiMJI'or t liiH purpose niiiy deljiin liini in niHlodv for n pei-iod not exceedinj^ Iwenly lour lioiirH. or nl once rouM'v liiin on JMnird. The Coiirl, inwleiid of conimiMin^ Hie H:ii!oi- lo piiHon, niiiy Heiul Hie Hciiiniin on hojird ol' Hie nliip. oi- deliver him lo Hie nuiHler (W nniie A p;irl ol' II le seiiniilirH wilf-M'S, liol exr( 'cdinjj l^l'J, niiiy be iipplied in i*eiinlnirHin;c iiny tohIh ineiii'ied 1).V Hk' niJiHler. Any person \vIm» enlircH ;i Heiinuiii lo deHerl, or liiii'hoiirH ii deHerler, is liiible lo iinpriHoiinienI will! hiir( h'HH tinin I wo nionlliH. Seiimen iiiiiy sue lor vviij,'eH in ;i Miiniinnry niiinner before iiiiy ('i)iiiily Coiirl .liid^e. Hiipendiiiry nui^'islriile, pliiinjuit, without ]»r(*ju(li('e to any rij^ht of suit or a( tion by tlie person aggrieved by the complaint. Any sliip owner wlio in dissatisfied with the survey may ai)peal to tlie Maiitime Court of On- JiSS^ *''*""' '^ "''^' *^"^^'*'-y '»''^>' *^"'n ^*^- oi'dered. Disorderly passengers may be detained by the n\aster or any officer of the steamer; they may be taken before a justice? of the peace and dealt with by him. The master or officer in command of any steamer may refuse to receive ou board any person wlu) is drunk or disorderly, or who causes or is in a couditiou to cause injury or annoyance to passengers on board; if any such person is on board the master or officer may put him on shore at any con- Danserous venient place. When dangm-ous goods are carried bv shii> they must be distinctly marked; if not so nuirked the shipper is liable to a penalty not exceeding .fSOO. Any shipper who shows that he is merely an agent and was not aware, and did not suspect, and had no reason to suspect, that the goods were of a dangerous nature, is not liable to more than $40. Every person know- ingly sending such goods under a false description is liable to a penalty not exceeding |2,()()0. TIk^ master may refuse to take on board any package which he sus- pects to contain such goods, and may require i( to be opened to ascertain the fact; if found on board they may be thrown overboard. l*rovisions are made for the inspection of steamboats and as to navigation of waters, in order to prevent collisions. For the protec- tion of navigable waters, notice of obstruction must be given by owners or nmstt'rs of ships suffering accident to the ^linister of Marine, College of It would be improper to pass over without sufficient and Sur- notice a most important branch of the .?ivi1 state, namely, geons, iIj^p medical profession of Ontario, This profession is in- corporated as "The College of l*hysicians and Surgeons •)r Ontario.-' It is composed of registeredj>hysicians. Tln^ college is under the management of a council, which in clu'lcs vepreseufativfcs of certain collegcB, live representa- tives of homoeopathy and twelve elective members. The R. 8.0. c, 148. CHAP. I, § 2] Rehdlve (Public). 263 mciiibors of the council arc elected for a period of five years and represent the provinces according to twelve divisions. The persons who are entitled to vote are all duly re}::istered practitioners. In each of the twelve territorial divisions a division association is formed ; every member of the college residcnit within that terri- torial division is a member, and a representative in the council of that division is ex officio chairman of the divi sion association. The council has power to a[>iiolnt examiners for matriculation, and to fix nnd determine a curriculum of studies for medical students. This curriculum must be taught in the colleges above r<'- ferred to, who send representatives to the council of the college. A register is kept, in which is ent«'red the Register. name of eyery mcKlical practitioner wlio complies with 1'ie rules and regulations of the council; these persons only are deemed to be qualified an nor less than ^L*i). If any person wilfully or falsely pretends to be a physician, doctor of medicine, surgeon, or general practitioner, or assumes any title, addition oi des()5 vcyor. I't'i'sons who hav<' 1)('<'n previously :i(l- iiiitlcd 1o priicticc in otlici' iKiils of the JJritish tioniinions tlian the rrovince of Ontiii'lo netd not serve for tliree years. If admitted in tlie Pro- vince of Qnebee they must serve during' six months of actual practice in the tield with a land surveyor, duly admitted and practisinj? in Ontario; if any other pcM-stni, he must serve durinf? t\v«'lve months of actual practice, after which he must submit himself for examination. A i)erson who has been in attendance^ at a university in Ontario for two years, or in ;Mc(Jill University in the i.'ity of ^lontreal, and who has received a diploma as a civil en^ineei', may, after ])assin^ the preliminary exam- ination, be received as an apprentice by any practisinj; land surveyor. He is then required to serve durinji" twelv(? montlis of actual service, or sufficient, with the time that he has actually jiassed at the university, to make up the full time of three years if he has been at th'» univ(M*sity for less than two years. Attendants at the Ontario School of I'ractical Science may be admit- ted after twelve successive moriths of actual service with a licensed surveyor; tlie final examination must then be passed. A Dominion land survt'yor may become a provincial land surveyor without beinjj; subjectel,(KK) made to the Crown. Oaths of allegiance and ojlh-c must also l)e taken before admission. Every survej'or must obtain from the Commissioner st; of Crown Lands a standard measure of length and before "J' '^ (If ju'oceeding on any survey must verify tlir length of his fession may pass over, measure ah)nj;, and ascertain the bearinj^s of any line or limit whatsot'ver, and for this purpose may pass over the lands of any person whomsoever, doing no actual damage to the property. If a surveyor is in doubt as to the true boundary or limit of any parcel of land which he is employed to survey, he may take evi- dence to establish the true position of the boundary; and may obtain the attendance of any person whom lie has reason to believe is possessed of information. To do so he may lile in the otlice of the County Court a pranipe for a subpa'ua, and the Judge may then order a subpo'ua to issue, on service of which the person must attend to be examined. If original monn- • ments cannot be found, the surveyor must obtain the best evidence that the nature of the case admits of respecting the posts or monuments; if they cannot be satisfactorily ascertained, then tlie surveyor must mea- sure the true distance between the nearest undisputed posts, limits or iiion\iments, and then divide the dis- tance into the number of lots which were set out in the original survey, assigning to each a proportionate breadth. If any purtion of the line in front of a cou- cessior» is lost, the surveycM' must run a line between the two nearest points ov phicea where the lino can be clearly and Fatistactorily ascertained, and i)lant intermediate posts or iHonunieiits on that line. Surveyors must kc* p exact and reguhir journals and MeUI notes, and lib' them in order of time in whieh the ser\ Ici's have Ik en per- formed. They must fui'uisli co|«ies to the pai'ti«'s cO!i- cernetl when recpiired. lor which payn\ent is .^llower the pui'posc of disseminating information with regard to agriculture' iaay also be fernu'd, and nuiy also receive public assistance. Thus the law does not ov< .. 1h<' just claims to attention of those who must after all ahvays be (he mainstav of the Canadian nation. Ibid c. II. ! i\ \A. 2QH Riglds of Persona [part I The present would seem also to be a lit place lo notice Avliat protection the law fjives to the workingman, and how it strives toi conciliate disputes between him and his employer, lint we shall have occasion to con sider these points later on, and mention them now only to show that modern legislation has not been in favour (•Illy (d' the ^reat and wealthy, but also has been ex tended to j)rotect the toiler who earns his bread by the sweat of his brow. There must always be jjradation of ranks, but tjie boast of our constitution is that its en- deavoui's are directed to produce that state of society of which it was said that the rich nnin helped the poor, and the j)<)or man loved the rich. Matters are yet far from that ideal, but much true and honest etfort has been jilven to briii}^' about such a result, and those elTorts are (ontained in the prosaic; form of the statute law to v> hich I shall hereafter allude. Statutes RelatliKj to Matters Discussed in Preceding Section. PAGE 201.. 261.. 201 . . 240.. Oath of Allegiance— R. S. C. c. 112. 241.. Naturalization— R. S. C. c. 113. 24i,.. Indians— R. S, C. c. 43, 1887 c. 33 ; 1888 c. 22 ; 1890 c. 29 ; 1891 cc. 5, 30; 1894 c. 32; 1895 c. 35. 251. .Indiana' Advancement— R. S. C. c. 44, 1890 c. 30. Ontario Statutes relating to Indians are mentioned in side note page 251. 254.. Militia— R. S. C. c. 41. 258.. Registration of Ships— R. S. C. c. 72. 260. . Inland Shipping— R. S. C. c. 75, 1893 c. 24. 261. . Safety of Ships— R. S. G. c. 77, 1889 c. 22 ; 1891 cc. 37, 38 ; 1894 c. 44. Navigation of Canadian Waters — R. S. C. c. 79. Wrecks— R. S. C. c. 81. 1893 c. 23. Coasting Trade— R. S. C. c. 8.*. Other Statutes relating to Maritime Matters not touched upon in the text, are R. S. C. caps. 70, 71. 73, 74, 70 to 88 inclusive. 262. .Medical Profession— R. S. O. c. 148, 1S91 ce. 20, 27 ; 1893 c. 27 ; 1895 c. 28. Anatomy Act -R. S. O. c. 149, 1889 c. 24. 204.. Land Surveyors— R. S. O. c. 152. /'Dentists- R. S. O. c. 151, 1891 c. 28 ; 1892 c. 33. Druggists -R. S. O. c. lol, 1889 c. 52 ; 1891 c. 29 ; 1893 c. 28 ; 1894 c. 45 ; 189.") c. 29. f^ Architects— 1890 c. 41. ' Veterinary Surgeons— 1895 c. 30 ; 189G c 15. Stenographic Reporters— 1891 c. 30. ^Stationery Engineers — 1891 c. 31. 267..rarmers— Department of Agriculture — (Dom.) R. S. C. c.24 (see page 07, ante). 267.. Agriculture and Arts— (Ontario) 1895 cc. 10, 11 ; 1890 c. i;. 267.. Agricultural College— R. S. O. c. 233. o 02 CHAP. I, § 2] Reldtiw (Pahlio). 200 CHAPTEK 1. SECTION 2— Continued. RELATIVE RIGHTS OF PERHONS (PUBLIC). 1891 cc. 5, ote page 251. Municipal Institutions. 1. Oroani/.ationof Municipali- ties. VlLI.AOi;, INCDIU'OKATION OF. Town, euection of Village INTO. City, euection of Town into. Addition to limith. Towns, wituuhawal of, fiiom County. Townships, now formed. Union of Counties, Division OF, Junior County, Provi- sional Senior County. 2. All Municipalities govern- ed iiY Councils — County, City, Town, Incorporated Villages, Townships. Qualifications and Disc^'ali- FICATIONS OF ]\lEMliKUS OF Councils — Exemptions. Elections of Mfmukrs of Councils. Who niny vote. Mode of election. Vacancy in Office. PowEiiS OF Municipalities. Must be exercised by By-law. May require assent of Electors. Who entitled to vote. Quashing By-laws. Actions against Persons act- ing UNDER By-laws, Requisites of By-Laws for Borrowing Money. By-Laws requiring Asssnt OF Electors — General Rule. Powers of County Councils AS to borrowing Money. Registration of By-laws. Annual I'^stimates. Lijiit of Taxation. Taxes, how Computed. Debentures, Requisites for- Railway Debentures. Adjiinistration of Ju.stice. fJustices of the Peace. Police. Work-lionses, Houses of Correction. I n V e s t i (i a t i o n s by County Jud^je. Internal Economy of Muni- cipality. Roads, Road Allowances. Improvements paii' for ry Local Rate. Draina{,'o Matters. Several ^lunicipalilics Interested. Other Matters, Streets, etc. 1. By Petition. 2. On Sanitary Grounds 3. On the Initiative. Mode of Adjusting Appeals. Assistance to Railways. Municipal Institutions in Un- 0RG\NizED Districts. Taxation for Municipal Purposes. 1. What Property may re Assessed. General Rule. Exemptions. Property Owned by Non- residents. 2. How Property may he As- sessed. Assessors — Assessment Roll. Uow Lund must be As- sessed. Mineral Lands — Vacant I-and. Land of Railway Companies. How Personal Property must be Assessed. Statements to Assessors. 270 RicjJiis of Persons [part I '!'/ Time for retiirnin);; roll. Appeals from AsHesHment to (Jourt of Itevision. to (bounty Judf^'e. Appeals by Nonresidents. E({iialii!ation of AsBossmcnts by (>onnty Council. Appeals from. Statute Labor. Collection of Ta.xes— Collec- tor's Roll. Duties of Collector. ' How Taxes Recoverable. Taxes a Lien on Land. 3. Salks 01' Lands fou Taxes. Treasurer's List. Adjourned Sale. Riflbts of Purchaser. How Redeemed. Invalid Sales, effect of. Deficiency in Collections, how made up. Non-resident Land Fund. PoDLic Education. Under supervision of Minister of Education, and subject to regulations of Education Department. Separate School System. PuuLic ScFiooi.s— All Free. School Sections. Trustees of. Li linorj^anized Districts. Township Boards. Alteration of Boundaries. Unions of. In (cities. Towns and Li- corporated Vilhi^^es. Number of Trustees — Duties. Taxation for. In Townships. In (Mties, Towns and In- corporated Villages. School Sites. Teachers — Examinations. Inspectors. N umber and powers. Books must be Authorized. How far Attendance Com- pulsory. Employment of Children Prohibited. HioH Schools. Wlien listablished. High School Board. Government and Municipal Grant. Sei'aiutk Schools. Protestant, Coloured, or Roman Catholic. Who may vote for. How supported. Roman Catholic Separate School Supporters, how Assessed. Upper Canada College. The University of Toronto. MUNICIPAL INSTITUTIONS. U.i Municipal The next public relation in which the inhabitants ment™ ^*^ Ontario stand to one another, is that of their muni- cipal government. As men form communities, special laws are required for the regulation of these communi- ties. Koads and bridges must be built nnd maintained — property must be guarded — public health must be cared for — public morals must be protected. All of this work can not be done without expense. Further, the state in Ontario considers itself bound to furnish education at public cost. For ,all of these purposes, therefore, thi' public must be taxed. The management of the funds raised must be confided to somebody. The analogy of the public revenue and expenditure is followed, and n representative system for local or municipal purposes has also been adopted. It is this system we must now ^^"••l CHAP. I, 5$ 2] Urldi'ire rl'nhlir.) 271 tonHulcr. \V«' liiivc to roinnicncc with llic iiuulc in wiiicli a nnmicijtiililv is crcnlrd — liow its j^ovciniiifr bod.v is <)i'}j;ainz('(l — wliat powers arc ('(Hifidcd to tlmt govcriiiiin body — how tiic expenses of tlie municipality sue ju'ovided for. and, next, wiiat special laws ai'e niatl«' relatinji,' to education. W'e must then invest i^:ite wli ii laws have l>een passed to protect public morals, public health, ])ublic i>ropei'ty, and other misccllam'ous public ri};hts and interests. The municipal system of Ontario nm.\ be considered under three iioads : (1) Orptinization. (2) Tlic Maua;.i< - ment of Affairs. ('{) Powers. (1) As to Oi'j^ani/ation. The province is divided oiMraui/.a- for municipal i)ur])oses into villa}?es, towns and cities,"""- townsliij)s, counties and unorganized districts. When the population of an unincorporated villajie with its Immediate neijjhborhood amounts to ToO inhabitants, and when the residences of the peojjlo are sufficiently near to form an incorporated village, then, on petition of not less than 100 resident freeholders and household- ers of the village and neighborhood, who are over twenty-one years of age, and of Avhom not fewer than m\ in<<)rporated county, and niay annex the new count; o ny adjacent incorpora- ted county. Where there is a ; : ok of counties, the county in which the county court house and gaol are situate? is called the senior county, and th(» other county or counties of the union are ealled the junior county or counties. During the union, all laws applicable to coun- ties ai>ply as if the counties formed but one municipal- ity. When tlie census returns show that the junior (ounty contains twenty-tive th<«usand inhabitants, then, on petition of the reeves and deputy reeves, the Lieuren ant-Governor nmy separate i>rovisionnlly the junior county and nmke it a separate municipality. The vari- ous officials are then appointed by the junior county pro- visionally, and all «iuestions between the former union and the new county are s«»ttled by arbitration. The Lieutenant-Governor then by proclamation separates the junior county and declares the day when the sepa- ration takes effect. As soon as this is done the provi- sional council and provisional officers of the junior county become the council and officers of the new cor- poration. Manage- (2) Management of Affairs in Municipalities. All affai Min municipalities are governed by councils. In coun- pahtios! ties the council consists of the reeves and deputy reeves of the townships and villages within the county. CHAP. I, § 2] Relative (PiMic). 273 and of any towns within the county which have not withdrawn from the jurisdiction of the county council; one of the reeves or deputy reeves is appointed warden. County Councils are hereafter to be composed asronnty follows: ^'"""^*'''- (a) If the population of the county is 25,000 or leas, :.«( vict. of not less than 8 members nor more than 10 members, '• '*• (/>) If the population is more than 25,000, but less than 40,000, of not less than 10 members nor more than 12 members. ((•) If Ihe population is 40,000 or more, but less than 00,000, of not less than 12 members nor more than 14 members. ((/) If the population is 00,000 or more, of not less than 10 members nor more than 18 members. For the purposes of the election of county council- Oounty ^ lors, each county must be divided into districts oraiviHijns. divisions, to be known as " County Council divisions," as follows: — {a) If the population of the county is 25,000 or less, into not less than 4 and not more than 5 divisions. [h) If the population is more than 25,000, but less than 40,000, into not less than 5 and not more than iy divisions. ((•) If the population is 40,000 or more, but U ss thii.i ftO.OOO, into not less than nor more than 7 divisions. ((]) And if the population is 00,000 or more, into not less than 8 nor more than 9 divisions. Tlie election for county councillors is to bi' held in alternate years. No member of the council of a local municipality, and no clerk, treasurer, assessor, or col- lector, is elifjible for nomination or election as a county coun« illor. Nominations are to be made on tlieifonday in the week before pollinj;' day. The* pollinp: day is to be tlie same as for councils of the local municipalities. If there is not an election by acclamation by reason of a nomination of exactly the requisite number of candi- dates, then an election is held like all otlier municipal K.B.— 18 iif: ' 5. a lltl;p^ 274 Rights of Persona [part I City Council. 55 Vict. c. 42. Town Council. Village Council. Township Council. Qu.'ilifica- tion.i for nienibern of cotuicil cloctions. Tho county elei-k and clerks of the local niuuiciimlities act as returninj? officers. The division of '. the count!»»s is made by commissioners appointed by the Lieutenant-Governor. In cities the council consists of the mayor, who is the head, and three aldermen for each ward. In the city of Toronto four aldermen are elected from each ward, and they may be paid for their services. j In cities having a population of 10(),000 or over, I there is to be a Board of Control, to consist of the mayor and three aldermen. The duties of the Hoard are to prepare estimates for civic expenditure, award con- tracts and control officers of the corporation.* In towns the council consists of the mayor, who is the head, and of three councillors for each ward where there are less than five, and of two councillors for each ward where there are five or more wards. If the town is not withdrawn from the jurisdiction of the council of the county in which it lies, then a reeve is added, and if the town has five hundr "! electors, then a deputy reeve is added, and for ever^ five hundred additional electors an additional deputy reeve. In incorporated villages the council consists of one reeve, who is the head, and four councillors, and if the village has five hundred electors, then of a reeve, deputy reeve and three councillors, and for each additional five hundred electors an additional deputy reeve instead of councillor. The council of a township consists of a reeve and four councillors, one councillor being elected for each ward, where the township is divided into wards, and the reeve is elected by a general vote. If the township has five hundred electors, then the council consists of a reeve, deputy reeve and lliree councillors, and for each five hundred additional electors, an additional deputy reeve IK elected instead of a councillor. No person can serve as mayor, alderman, reeve, deputy reeve or councillor, unless he reside within the • 59 Vict. c. 51, sees. 33, 34. -n^ CHAP. 1, § 2] Relative (Public). 275 e. le municipnlity, or within two miles of it. He must be a natiirni born or naturalized subject of the King, and must be over twenty-one years old; he must liave at the time of election, as proprietor or tenant, a legal or equi- table freehold or leasehold, or partly freehold and partly leasehold, or partly legal and partly equitable, to at least the following amounts over and above any charge, lien, or incumbrance : In incorporated villages, free- hold to two hundred dollars, leasehold to four hundred dollars; in towns, freehold to six hundred dollars, lease- liold to twelve hundred dollars; in cities, freehold to one thousand dollars, leasehold to two thousand dollars; in townships, freehold to four hundred dollars, leasehold to eight hundred dollars. Certain officials and other •►''«.- cllumi'ls. cipal assessors, collectors, treasurers, clerks, also county Crown attorneys, registrars, deputy clerks of the Crown, County Court clerks, clerks of the peace and high school trustees, license commissioners, or inspetiors of licenses, and police magistrates. The above persons ar<» dis- qualified by reason of official position. The following are disqualified by reason of occups. ion: Innkeepers, Maloon-ke<'pers, shopket»])ers licensed to sell spirituous liquors by retail. The following persons are disquali- fied by reason of interest: Any person having by him- self or his partner an interest in any contract, with or on behalf of the corporation, or any claim, action or pro- ceeding against the corporation; any perpon who is counsel or solicitor in the prosecution of any claim, action, or proceeding against the municipality. Certain persons are exempted from serving as Kx.-mp- members of council, namely, members of Parliament, of !!)!r"i'„^'^".["' the Senate, of the Legislative Assembly of Ontario, civil ••hi>i»>«'i>i servants. Judges, coroners, clergymen, all members of the Law Society of Ontario, all officials of Courts of justice, all medical men, university pi'ofessors, school- masters, millers and firemen. The members of the councils are all elected annu Kicctionn ally on the first Monday in January. The right of L".*^'" ii 276 Who may vote. liighta of Persons [I'AUT I votiiij; at I'loctions of fh<>HO momboi's bcloni^s to tho fol- lowing elnHS(>8: (1) All porHoiis who aro frocholdors in thc^ir own right, or whoHC wiveH are freeholders. (2) All residentH of the municipality who luive r»'- sided for one month next before the election, and who are, or whoHe wive8 are, lioutH'holderM or tenaniH in the municipality. (3) All residents of the municipality who have con- tinuously resided therein since the completion of the last revised assessment roll, and who are in receipt of an income from some trade, oflflce, calling, or profession, of not less than f4()(). (4) All residents of the municipality who are farm- ers' sons and have resided on the farm of their fathtr or mother for twelve months next prior to the return hy the assessors of the assessment roll on which the voters' list used at the election is based. A farm must not be less than twenty acres. Absence for four months in a year does not dis(]ualify. Personn in default for payment of their taxes cannot vote at any election. Every occupant of a separate portion of a house, such portion having a distinct connection with the public road or street by an outer door, is a householder. The persons who are thus qualified to vote at muni- cipal elections, whether m<'n or unmarried women or widows, must be of the full age of twenty-one years, and subjects of the King by birth or naturalization. They must be rated on the revised assessment roll upon which the voters' list used at the election is bas(>d for , real property held in their own right, or, in the case of married men, held by their wives or for income, and they must have received no reward, and liave no expectation of a reward for voting. In order to entitle a person to vote with respect to real property, it must be rated at an actual value of not less than the following: In town- ships and incorporated villages, flOO; in towns where the population does not exceed three thousand, |2(J0 ; where over, |300. In cities, f400. CHAP. I, § 2] Relative (Public). 277 FiliM'tioiiH of nuMulM'i'H of roiincilH nn» Iwld on vorv >'"''• "f iNitiiiii, much thf Hjiino prim-iple nK thoso of inembei'H of Par- liiimcnt; the volinj; is bv baUot, and a n'-count may b»* obfaint'd, and j?rnt'rjilly Hpmkin};, what haH brtain deihirations, and the council is empow- ered to take the bonds of ^uarant<"' companies as their secjirity; jj^ratuities may be jjiven them for good services. 3. I have thus dealt with the two first nuitters rehi |..,^v,.rs..f ting to muni<-ipalities, namely, theii- (»rgani/.ation ainl '"'"'''• the composititm of the <'.\ecutive managing bodies who direct municipal affairs. I now com*' to the third head ing. namely, the powers of councils. Their jurisdiction is /exercised in respe«'t of finr.nce, issuing of delx'ntures, the ^administration of justice and judicial proceedings. Every council is confined to its own municipality, except as to drainage matters, and the powers of the council must be exercised by byhiw. No council can allow any mon- opoly, but nuiy grant ex«*lusive privileges in any lerry other than one between a province of the Dominion of <\inada and any British or foreign possessicm, or between two provim-es of the Dominion. Hy-laws may be passed By lawn. for all of the purposes to carry out which th" cnnnci! is organized. These by-laws may be objected to by rate- payers, and in certain cases require the assent of th(? electors of a municipality before their final passing. These cases will be referred to later on. Where there m ;[ r \ J ? f t^ ; nH f \H i ,'■ r i . .'■ !{«= 1 i 1 IP 278 Riijhts of Persona [PAIIT 1 ifl a by-law to be submitted to tho ratepayers the vote of those entitled to vote is talcen by ballot in the sanu^ way as in the case of elections. The persons who are eu titled to vote on such bylaws are as follows: jvrH..nM (1) Everv ratepayer, beini; a num. unnuirried woman entitled to \' ; ^:. ' ,^ , , ^, , , , ., vote on or widow, win) at the time of tender of the vote is of the byiawH. f^ii j^^j, ^^j twenty-one years, and a natural born or naturalized subject of His Majesty; he must have neither directly nor indirectly received, nor be in expectation of receiving any reward or ^\U for the vote which he tenders; he must be at the time of the tender of the vote a freehoId<'r in his own right, or his wife must be a freeholder of real property within the municipality, of ^:ufflcient value to entitle him to vote at any municipal election. He must l)e rated on the last revised ass<'SS' uu'Ut roll, provided his name appears in the voters' list of electors. ('-*) A leaseholder, being a umn, unmarried woman or widow, \o be entitled to vote, must be, or, if a man, his wif«' must be, a leasi'holder of real property within Ihe municipality of suflHcient value to entitle him to vote at a municipal elcittion; he niust be rated on the last I revised assessment roll therefor; his lease must extend for th(? period of time within which tlu? debt to be con- tracted or the money to be raised by the by-law is nmde paj'able; and in his lease he must have covenanted to pay all municipal taxes in respect of the property leased. His name must appear in the voters' list. If no application is made to quash a by-law v/ithin three months after its publication in a public newspaper for three successive weeks, then the by-law, notwith- standing any want of substance or form either in the by-law itself or in the time or manner of passing it, is a valid by-law. In order to quash a by-law an applicant must apply to the High Court of Justice. No applica- tion can be heard by the Court unless it is made within one year from the passing of the by-law. except in th«? case of a by-law requiring the assent of electors or rate- I)ayers, when the by-law has not been submitted to, or has not received the assent of the electors or ratepayers; in the latter case an application to quash the by-law Applica- tiuiiM to quMli by laWK. CHAP. I, § 2] Relative (Public). 279 or rs; iw may be made at any time. Before deterniiniii); an ap- plication to quaMti a bylaw on the ground of bribery or other illegal practices, the Judge of th«' High Court may direct an inquiry before a Judge of the County Court; the latter thereupon takcH the nercssary evidence and leturnK it to the Higli <'ourt Judge, wlio, if lie is 8aHs-. tied that there are grounds for bo doing, nuiy roulce an order to quash the by-law. If a by-law is illegal, in l^.p^IIg"",.,, case anything has been done under it which by reafO'.i plaintitT, and if no more than the amount tendered is recovered, the plaintiil' can get no costs, but costs are taxed to the defendant and set olT against the verdict, if any. liy-laws for contracting^ I'.v Ihwh debts by borrowing money or otherwise, and for levyinjj; |',.''j,'.'""' rates for payment of such debts on the ratable property 'Mn^. of the munici|)ality, may l)e passed for any purpose within the jurisdiction of the council. These by-laws must comply with certain requisites; they can only be made payable in twenty years at furthest; unless the debt is contracted for gas or water works, or railways, or harbour works, or improvements; when they can be made payable in thirty years at furthest. The rale of interest must be estimated at not nior,' than liv»' per cent, per annum, to be capitalized yearly. Tlu' by-law must provide that an annual sum sliall l)e raised and levied in each j'ear by a special rate sulBcienl therefor on all the ratable property of the municipality; or, if the by-law is for a \\ork payable by local assess- ment on all the property ratable imder the bylaw, or per foot frontage, as the case may be. The by-law must have also appropriate re<'itals tluMein, and must set out the amount and object of the debt, the amount to be raised annually, the value of the ratable property, the amount of the existing debenture debt, and the :*■ '^% i I s i I 4 M 2S0 liil/llts of I'l'VHOIIH [I'AUT I Anh<'mm- IIH'lltH uiidrr l>y luWH, lii'll on liuiil. HyliiWH rfi|iiii'iiiK' aHHt-til (if Ciiiiiily ClltllK^il hy-laWM for (M1II- tnictiiif; (iclttx. Anniinl e8tiniaU>s np«'dal nito, If Hh* bv law Im' for a HiHM-lal rate, and HtaJ Inj? Iliat llio iiuuu-y Ih raiHiul on tlial wcrurity only. Aiiipit' powiTH ar<' Kiviii to (lie roiintil aH lo IJit- inialf of iiiakiiiK tli<> (Icbl i'«>tia,vahl(> bv annual InHtalnH'nts. Kvt'i'v Hp(M-ial aHHCHHUicnt nuub* i;ndfr a bylaw b«'coin«'s a (>liai'f;i' u|»on the real oHtalc upon wliirli the rale is aHHCHHcd, an way as ot'dinury taxcH arc collected. I Hiah'd that cerfain bylawH required the aHHent of the eleclorM. These by-lawH are thone for ralHiii}; upon the credit of a municipality any money not recpiired for ilH ordinary expenditure and not payable within llic Hatne municipal year. In counlieH the «'oiin(y council m:iy raised by bylaw, witlio\il submit I in^ it lor the assent of the eleclors. any sum nol excecdinfi: in any one year 4i2(),(MI() over and above the sums required for its (»rdi nary expenditure. Where a county aiul cijy are united for juses the <'ouncil for the county or city amy by by law, passed without bein^ submitted to th;- electors, raise su«'h sums of inoiu'y as may be i*c<]uired for building; and furnishing n court lumse and otiices, and for ac(]uirinf; such lan(l for llic lawTtil purpoHcH of Mm* coiiniy «if iiinnir)|)]ilily I'oi- IIm* \i;iv in wliirh nii«Ii hiiiiin ).'f(f i'(M|nii-«'rH lor til!- rosi of corporation, and by by-law to si>^n it. Debentures issued in aid of any railway, oi- for any bonus, sijj;ned or indorsed and <*ountersi^nn«'<>, iiiid >ilili>iiiirii in HticH ur«» jiiMtlrrM of the |M'Un' viitiilf onirll. Ah to polln*, w aiviuly MtnlrtI, tlir coimril of rvnv rit.v iiiul town iMiiHl cHtuMiHli a itolirc ottlro, niid tli(> polln« iiuiKiHtnil«*, OP, if tlHTo Ih no |>olii>j> ninKiHtratr. tin* mayor of tin* town or city niUHt attend dnil.v to diHpow of the bnHineHH neeeHHar.v. In <«verv cit.v I here Ih a iMuird of eoniniiM hionerH of |M)Ure, iih Iihh iiIno l»een Mtarteil elnewhere. where their diitieH are expliiiiiepair and provide the neceHKary HUpplieH; t!n'y may eMtahlish loek-iip Iioukoh for the detention and inipriHonment of permmH Hen tenr(>d to ImpriHonment for not more than ten days under any by-law of the council. The council of everv • • • city and town may cHtabliHli a workhouHe or houne of correction, and may paHH by-lawH for coinmittiu}! vag- rant h until Heparate Iiouhch of correction are erected. The <'oinmon gaol of ea<-h county is a house of correc- tion for idle and diHorderly perHons, or roguen and vaiga- bonds and incorrigible rogue.i an rouncil of any municipality at any time losses a resolution re(|uesting tli(> .)udgi> of tlie County Court to investigate any matter to be mentiimeti in tlie resolution relating t(» a supposed malfeasjince, bi'eacli of trust, or otiu'r miscjuiduct on the part of any member of tlu' council or officer of the c„Mir). 2H» rmoliiHor n'qiirNtiii^ Ww .\\u\m> to make the inquiry, thvii t!i4> .liidp' iiiiiHl ini|uir«' i'lto (li<> maltiT. II«> pro- ('«*(>(Ih iiiMin* IIh' All iTHiMTliiiK lii<|iiii*icH riiiirfi'iiiiiK I llliiic MilHcrH,* niHl rrporlH to (lie roilllrjl (ttc I'CHllll of th(> in(|iiiry. The powciH or iiiinilrlpal coiiiKilH aH to (loin«'Hti(! |'<>w«.ih <.f ('C0I10III.V vary with tho , rortain excliiMivr powers, Kucli aH tlu* ('oiniiiiitati(Mi of Htatiiti> labour, and for liecnHin^ and rcKuiatin^ fcrricH lictwi't-n any two plaircH witliin tli«> towiiHliip. rounlirH, in tlu* Hanir way, liav<- exeluHivo powcrH of paHHin^ by-la wh for cnNition of a board of audit. (Srnorally Npcaliin^, tli<' powrrH of all inunicipaliticH an> tlu* Hanu^ in nature; tliry may obtain prop4>rty, appoint oIlircrH, aid manufacturing cHtaldiHli- nuMitH, road rompanicH or aKrirultural Hn<;i(>ti('H; tln-y liav<> (general HuprrviHion (»v<>r all tin* domcHlir croniuny of tln' municipality. 11 .i > uincil jiaHHrs a by Inw relat \.]„f,,rrUnf ini; to anv mat(*r within itH (control, tlit-v liav«' t|,e "'•••' '"'i"* further power of directing; that in default of obedience to the bylaw, whatever Ih requiretl to be done may be done at th<> expeuHe of the perHon in default, and the oxpeiiHe of so doinj; may In* r«'coven'd with costs by ae tion or tlistress; in case of non payment the amount is to be recovered in the same way as taxes. The various matters of domestic economy over wiiich couiM-ils have jurisdiction in<-lude victualling; houses, li effect that it is desirable to proceed therewith, the coun- cil which caused the survey to be made may serve upon the other county a notice with a requisition of appeal re- questing that county to state whether or not it is . (12) The annual income of any perwrn to the amount of |40(> fr" "'. S^^'- : ifi'd; 292 Rights of Persons [PABT I Piirtner- ship as- seHsinent. Mineral landH. tlic naiTio of and aguinst the occupant and owner. If nnoccupiod, and the owner lias not requested to be assessed therefor, then it must be assessed as land of a non-resident. If the real property is owned by a person not resident within the province who has not required his name to be entered on the assessment roll, then, if occupied, it is assessed against the occupant; if not oc- cupied, it is assessed as non-resident. If land is assessed against both owner and occupant, or owner and tenant, both names are placed upon the roll. If land is owned or occupied by more persons than one, they are assessed in the proportions belonging to them respectively; if a j)ortion of the land so situated is owned by persons who are non-resident, and who have not required their names to be entered on the roll, then the whole property must be assessed in the names furnished to the assessor as the names of the owners. If any member of a partner- ship so requests, his share in the partnership must be assessed as if it were his separate and individual pro- perty, and formed no part of the partnership property. Any occupant may deduct from his rent taxes paid by him, if they could have been recovered from the owner or previous occupant, unless there is a special agree- ment between the occupant and the owner to the con- trary. If mineral lands are to be assessed, the land and the buildings are to be estimated at the value of other lands in the neighbourhood for agricultural purposes, but in- come derived from any mine is subject to taxation in the same manner as other incomes. BasiR of taxation. Vacant land. The general rule for the assessment of real and personal property is that they must be estimated at their actual cash value in the s.ame way as they would be appraised in payment of a just debt lor a solvent debtor. If vacant ground or ground used as a farm, garden or nursery, and not in imme- diate demand for building purposes, in cities, towns or villages is to be assessed, the rule for assessment is as follows: The value of the vacant land is to be taken ' as that at which sales of it can be freely made, and CHAP. I, § 2] Relative (Public). 2»8 HHO. 2 r.<» Vict. where no sales can be reasonably expected durini; the'^ Y'«t current year, the assessors must, in cities where the ex tent of the hind exceeds two acres, and in towns and in-,V"r>M,'Kec.i corporated villages where the extent of th« land exceeds ten acres, value the land as thou^^h it was Jield for farming or garden purposes, with sudi u percentaffe added as the situation of the hind reasonably calls for. Even if the vacant land lias been surveyed into building lots, if the lots are unsold, the block may be entered on the assessment roll by acreage. If ground is not held for the purposes of (lanienH sale, but is bona f-e enclosed, and used in connection **"** ***""• with a house as a garden, lawn, or pleasure ground, it must be assessed with the house at a valuation which at six per cent, would yield a sum equal to the annual rental which, in the judgnu it of the assessors, it is fairlv and reasonablv worth. The land of railwav com- Hallway panics IS assessed on the same principles, and railway companies are required to transmit to the clerk of the municipality statements annually, showing their prop- erty. The general rule as to assessing personal property BawiH of • iii !•• • iiii taxation IS tliat no perscm deriving an income, not declared ix„n income, empt, from any [>articular calling, otfice, profession, or other source whatsoever which is not specifically exempted, can be assessed for a less sum as the amount of his net personal property than the amount of his income during the last year over the exemptions. His last year'si income in excess of the exemptions is held to be his net personal jnop- erty, unless he has other personal property liable to assessment, in which ca.se the excess of income and the other personal property are to be added together and constitute the personal property liable to assess- ment. A person who is beneficial owner of shares, but which do not stand in his name, can be assessed for the income from the shares as if they stood in his name. / The personal property of persons who are not residents Non-resi- in the province is assessable like the personal projierty j-^y^ ^ of residents, no matter in whose hands the property may taxi^tion. '' ■ r ^1 S94 Incorpn rat)Ml loiii PartinT- nhip pi'O' perty. Officials. llUjhta of Peraonn [I'AIIT I Non- resident. be, but divlilcnds whirh un» payablo to, or other choseH in action wliicli are owned by and Htand in tlie name of tlu' person not residinf;; in the provinc**, ennnot be nHseHHed. Tlie pei'Honal |»roperty of nn Incorporated company inuHt be aH8eHH4>d a;;ainHt tlie company on tlie name principU>H, but tlie pernonal property of a bank or of n company whicli invcHts th(^ wliole or principal part of itH meauH in ^ra^ or waterworliH, planlc or gravel roatlM, railway and tram roads, liarbourH or other works re(]uiring investment of the whole or principal part of its m(>ans in real estate, is <»xempt from assess- ment, but the shareholders must be assessed on the in«'ome derived from the ccmipany. The p<'rsonal prop- erty of partnerships must be assessed against Ihe llrm. and ii partner cannot be assessed in his individual capacity for any share of any personal property of the partnership which has already been assessed against the firm. In respect of a partnership with more than one business locality, the ]>artnership may choose at which locality tlu» whole of the assessment shall be made. Any person who has a farm, shop, factory, olflce or other place of business, must, for all property owned by hira, be assessed in the municipality or ward where he has his place of business; if he has more than one place of business, he must be assessed at each for that portion of his personal property connected with the business carried on; if this cannot be done, he must be assessed for part of his personal property at one place of busi- ness and part at another. If he has no place of busi- ness, he must be assessed at his place of residence. If a person holds any appointment or place to which a salary is attached, and performs the duties of the ap- pointment within a municipality in which he does not reside, he must be assessed in respect of the amount of his salary at the place where he performed his duties, and he cannot be assessed at his place of residence. If the person holds a county municipal oflBce, or a Govern- ment office in a minor municipality, when the location of the office is fixed, then the person must be assessed in the municipality where he resides. The personal pro- perty of a non-resident must be assessed in the name of CHAP. I, § 2] Relat'tve (PulAic). 296 any pcPHon who id in tht* control or possoBslon of it. In the i'liHe of property owncil by joint own«M's, tlun each can be UHHessed for liiH Hlian- onl.v; if personal prop«'rty iH in tlie Hole poKMeHHion of any person hh trustee, guai dian, exerutor, or administrator, it must be assesse I af^ainst tluit person alone, and his representative «hui- acter must be shown on the assessnuMit roll. All persons are required to j?iv«' all necessary infor mation to the assessors, and, if necessary, the ass<'S8oi- can require tlu? statement to be made in wrii'ng. Coi- porations whose dividends are liable to taxnlion musi I furnish the assessor with a statement in writing, sliow ing the names of the sharehobh'rs and the amount ol stock and dividends declared. The assessor must make inquiries on his own responsibility as well as acceptin<^ statements made to him by persons interested. One of Jiis principal duties is to prevent, by makin;^ inquiries, the creation of false votes before assessing or entering: any person on the list. Assessors must begin to make their rolls in each year not later than the 15th of Febni ary, and the roll must be complete on or before the ."iOtli of April. On the 1st of May the roll is delivered to the clerk of the municipality completed and added up, with the necessary certificates and atfidavits. In cities,* towns and incorporated villages the council may alter the above dates by passing by-laws for regulating them an follows: The assessment may be taken between the Isr day of July and the 30th of September; the roll must be then returaable on the 1st of October. In that case, the time for closing the Court of Revision must l)e the 15th of November; and for tlie final return by the Judge of tlie County Court, tin? .'Ust December. Taxes may be made payable by instalments, and municipalities may allow a discount for prompt payment, or may add an additional percentage charge for default. County coun- cils may pass by-laws for taking the assessment in •In cities with a population over Sfl.O'O, tlie aPseFsment m»y be made between the Ist of May and the 30th September. In cities with a population over 100,000, the asseBsment may be made by wards prior to the 30th September in each year. The Judge's revision then must be completed by the 20th October. 59 Vict. c. 58. See page 193, ante. fiiforniu- tioii iiumi \m (fiv«>n til HMHUMHUrH. Tiirii' fur iiiiikiii)^ Hunt. i ;", 29U i Ap|)«al fniiii Kh- HeRHinent. Tnnrt of I ■■<; ;vi. I Jiiyhts of Persona [part I 59 Vict, c. 58, sec. tnwDfi, townshipg and incorporated villagoH betwovn tli<> jHt day of Fobniary and tin? Ist day of July. If the time is extended beyond tlie iHt day of May, then the time for eloaing th(t Court of Keviaion iH to be hIx weelcs from the day to wliich tlie time iH extended, and for linal return in niHe of an appeal, t\velv(f weelvH. ICxeept in tlieHe partinilar raHCH, tin? liHtH niUHt finally be re- viHcd by the IhI of .Inly. After the aHHCHHorH liave handed in their aHHeHsment to the clerk, any person complaining of an error or oiniHsion, or overcharj^fe ov nndercliarK<>, nuiy give notice in writing of his intention to appeal. This notice must \be given to the clei ;, or assessment commissioner, if there be any, within fourteen days after th(! day upon which the roll is required to be returned, or after the return of the roll, if the roll is not returned within the time fixed. Any elector may giv«' notice in writing of his intention to appeal against the assessment of any other person. All complaints are entered in a list, and are disposed of in the order in which they appear. The matter is disposed of before what is called the Court ' of Revision. If the council of the municipality consists of not more than five members, then these five members are the Court of Revision; if the council consists of more than five members, tlien the council must appoint live of its members to be a Court of Revisicm.* Three members form a quorum, and a nmjority of a quorum decide all questions; the clerk of the municipality is clerk of the Court. The first sitting cannot be held until after the exj»ii'atiou of at least ten days from the expiration of the time within which notice of ap- peals may be given to tlie clerk of the municipality. After hearing i\w complainant and the assessor and any witness adduced, and if deemed desirable, the party complained against, the Court determines the matter and confirms or amends the roll. The Court may increase the assessment or change it by assessing the • In cities with a population over 30,('00, the Court of Revision con- ., sists of three mombers, one of whom is apix)inted by the City Council, ' and one by t)ie Mayor, the third is the official arbitrator. If there is no oH'ici •lud^e, who notifies the clerk of the day appoint(>d for hearing ; the clerk then gives notice to all parties, and also posts up a notice in his office. Tlie Jud^e liears the appeals and may adjourn the hearing and defer judgment, but all appeals must he determined before the 1st of August, except in the cases before mentioned. In all proceedings before the Judge, he has tlu? same powers for comptdling the attendance of witnesses and parties, and for their examination on oath, and for production, as in his oidinary Court. The decision of the .Judge is final and conchisive; l)Ut where there is an appeal from any Court of Revision to the County Court Judge, and a person, partnership or corpo- ration desiring to appeal has been assessed on one or more properties to an amount aggregating ^.10,000, then the appellant has the right of having the appeal heard by a board consisting of the? Judges of the eal8 are heard. In order to secure uniformity of decision, the")? Vict, Lieutenant-Crovernor may refer a case on an assessment (juestion to the Court of Ai)peal. If a non-resident whose land has been assessed com- Apiuais plains by petition at any time before the Ist of May in iv^.i. i>ts. the year next following that in which the assessment is made, then the council must, at its first meeting after ' 298 Rights of Persons [part I ^9\ Equaliza- tion of rates by county counc'ls. one week's notice to the appellant, hear the complaint. If the lands are found to have been assessed twenty-five per cent, more than similar land belon}i;inj? to residents, the council or Judge must order the surplus to be struck ofif. In counties, the county council must every year before imposing any county rate, and not later than 1st of Jul}', examine the assessment rolls of the ditfereut town- sliips, towns and villages in the county for the preceding financial year for the purpose of ascertaining whether the valuations made by the assessors in each township, town or village, bear a just relation one to another, and may for the purposes of the county reduce, increase, or de- crease the aggregate valuations of real and personal property in any township, town or village, adding or deducting so much percentum as may, in theii* opinion, be necessary to produce a just relation between values of real and personal estate in the county; they must not reduce the aggregate values for the whole county as made by the assessor. If any municipality is dissatisfied with the action of the county council, the}' maj^ appeal at any time within ten days after the decision of the council to the County Judge. If any party to the ap- peal has objected to the final equalization by the County Judge, the clerk of the county council must notify the Provincial Secretary; thereupon the Lieutenant-Gover- nor in council may appoint two persons, one of whom must be the sheriff or registrar of the county in which the appeal is made, and the other a Judge of another county, who, together with the County Judge, form a Court, and this Court determines the matter and equal- izes the assessment of the county. If all che partieN to the appeal have agreed to the hearing of the matter by the County Judge, he is thereupon notified in writing by the clerk of the county council ; on receipt of the notice he appoints a day for hearing the appeal, and disposes of it, so that judgment can be given not later than the Ist of August next after the appeal. Statute / Labour. ' Every male inhabitant of a city, town or village, over twenty-one years of age and under sixty, who is [part I ': CHAP. I, § 2] Uehit'ive (Public). 299 not assessed upon the assessment roll, or whose taxes do not amount to $2, must, instead of statute labour, be taxed at |1 a year therefor. No soldier or sailor on full pay, or on actual service, is liable to perform statute labour or to commute. No non-commissioned officer or private of the volunteer force certified by the officer commanding the t^^uipany to which he belongs can be called upon for statute labour. Firemen are also ex- empted. In townships every male inhabitant between the ages above mentioned, who is not otherwise as- sessed, and who is not exempt by law from i)erforming statute labour, is liable to one day of statute labour on roads" and highways in the township. All councils may reduce or abolish statute labour. In townshi[)s every person assessed upon the assessment roll at not more than ^300 is liable to two days' statute labour; if from 1300 to fSOO, three days; from |500 to |700, four days; from 1700 to $900, five days; for every $300 over $900, or any fractional part of $300 over $150, one additional day. This tax may be commuted by the payment of one dollar a day ; and it is collected and ac- <;ounted for as all other taxes. Every farmer's son is liable to perform statute labour or commute. Any per- son liable to pay the tax in lieu of statute labour must pay the same to the collector within two days after de- mand. In case of neglect or refusal, the collector may levy the amount by distress on goods and chattels of the defaulter with costs of the distress. T^ no sufficient dis- tress can be found, then the defaulter incurs the penalty of .f5 with costs; in default of payment he can be com- mitted to the common gaol of the county and set to hard labour for any term not exceeding ten days. No n on- Collectors resident, who has not required his name to be entered" ^'*^**'" in the roll, can be permitted to perform statute labour, but the commutjition tax is charged against the lands. After an assessment is made and the taxes settled, the next step is the collection of the rates. For this pur- pose the clerk of every municipality must nmke out a collector's roll containing all information required to be entered by the collector; this roll contains the name of the person assessed, and the amount levied, and all it' H-?M ' 800 Dutiea of collector. Rights of Persons [part I Collection of rates. other particulars necessary to enable the collector to make the collection. In cities and towns the collector must call at least once on the person taxed, or at the place of his usual residence or domicile or place of business, and demand payment of the taxes payable; or he must leave with the person taxed or Jit his residence or place of business, or upon the premises, a written or printed notice specifying the amount of the taxes, and at the time of the demand must enter the date on his col- lection roll. In places other than cities and towns, he must call at least once on the person taxed, or at his usual residence or place of business, and must demand payment of the taxes from him. If a person neglects to pay his taxes for fourteen days after demand, or in case of cities and towns, after the demand or notice above mentioned, the collector may levy the taxes with costs by distress of the goods and chattels oi' the per- son who ought to pay, or on any goods and chattels in his possession, wherever they may be found. The costs chargeable are those payable to bailiffs under the Division Courts A-.it.* If a collector has reason to lie- Exemp- * •^"' Vict. c. 58, sec. 6, is as follows : — In case of distress for the non- tion from payment of taxes where the owner or person assessed is not in posses- distress for sion, the tjoods and chattels on the premises not belongint; to the person tuxes. liable for the taxes shall not be subject to seizure; but this restriction shall not apply in favour of a pjrson claiming title under or by virtue of an execution against the person so liable, or in favour of any person whose title is derived by purchase, gift, transfer or assignment from the person so liable, whether absolute or in trust, or by way of mortgage or other- wise, nor to the interest of the person so liable in any goods on the premises belonging to him, or to the possession of which he is entitled, under a contract for purchase, or by which he may or is to become the owner thereof upon performance of any condition, nor where goods have been exchanged between two persona so liable by the one borrowing or hirnig from the other, for the purpose of defeating the claim of or the right of distress for the non-payment of taxes ; nor shall the restriction apply where the property is claimed by the wife, husband, daughter, son, daughter-in-law or son-in-law of the person so liable, or by any other relative of his, in case such other relative lives on the premises as a member of the family ; and possession by the tenant of said goods and chattels shall be sutHcient prima facie evidence that they belong to him. It will be noticed that this section applies only to the case where the owner or person assessed is not in possession. If he is in possession the owner's goods are liable whether he is assessed for the lands or not. If the taxes are due on rented premises, the tenant must pay the rent to the collector until the taxes are satisfied. (Ibid, seo. 8.) Goods in possession of a warehouseman are protected by 68 Vict. 0. 47, sec. 7. CHAP. I, S 2] Relative {Public). 801 liove that any person by whom taxes are payable is about to remove goods or chattels out of the municipal- ity before the fourteen days have expired, and makes an atiidavit to that effect before the mayor or reeve of the municipality, or before any justice of the peace, the mayor or justice of the peace must issue a warrant to the collector authorizing him to levy for the taxes al- though the fourteen days have not expired. In the case c.iuction of non-residence, the notice is sent by the collector by resident".' post. If the non-resident has required his name to be entered on the roll, the collector, after one month from the date of the delivery of the writ to him, and after fourteen days from the time of the transmission of tlie no- tice by post, may make distress of any goods and chattels which he may find upon the land; no claim of property, lien or privilege shall be available to prevent the sale. If the taxes payable by any person cannot be recovered in any special manner provided for, they may be recover- ed as a debt due to the local municipality. In towns, R,.ti,rn of villages and townships, every collector must return his """''• roll to the treasurer on or before the 14th of December in each year, or on such day in the next year, not lat(«r than the 1st of February, as the council may appoint, and ])ay over the amount payable to such treasurer, specifying how much of the whole amount is on account •of each separate rate. If the collector fails or omits to collect the taxes, some other person may be appointed by the council in his stead. Taxes accrued on any land Taxes a are a special lien on the land, having preference over land, any claim, lien, privilege or incumbrance of any person excepting the Crown, and does not require registration to preserve it. The treasurer of every county must furnish to the clerk of each municipality, except cities and towns, a list of all the lands in his municipality, in respect of which any taxes have been in arrear for the three years next preceding the Ist of January in any year. This list must be furnished by the 1st of Febru- ary in every year, and is headed " List of lands liable to be sold for arrears of taxes in the year *' This list is kept by the clerk of the municipality in his oflBce on file, and a copy is also delivered to the assessor li 802 Rights of Persona [part I I ,! Sales of land for taxes. /- of the municipality. The assessor must then notify tlie occupants, and also the owners of the land, if known, that the land is liable to be sold for arrears of taxes; the list is then returned hy the assessor to the clerk. On or before the 1.5tli September in each year, the county trea- surer must return to the clerk of each local municipality other than a city or town, and every city or town trea- I surer must return to the clerk of the city or town, an ac- count of all arrears of taxes. In making out the col- lector's roll for the year, the clerk of the municipality must add the arrears of taxes to the taxes assessed for the current year. The treasurer of every township and village must within fourteen days after the time ap- pointed for the return of the final statement of the col- lector's roll, and before the 8th of April in every year, furnish the county treasurer with a statement of all un- paid taxes and school rates directed in the collector's roll, or by the school trustees, to be collected. If it is found by this statement that arrears of taxes upon the occupied lands of non-residents remain in arrear, then this land is liable to be sold for the arrears, and must be included in the next or ensuing list of lands to be sold by the county treasurer. Penalties are imposed upon failure by any official in performance of the duties imposed with regard to these matters. If, on the 1st of May in each year, it appears that there are any arrears due on any parcel of land, the treasurer adds to the whole amount then due ten per cent. Unpatented land vested in or held by the Crown, which is either granted or located as a free grant, is liable to taxation from the date of the sale or grant. Where a portion of the tax of any land has been due for and in the third year, or for more than three years preceding the current year, then the treasurer of the county submits to thei warden of the county a list in duplicate of all the lands liable to be sold for taxes, with tlie amount of arrears against each lot. The warden places the seal of the corpora- tion on the list. One copy is deposited with the clerk of the county, the other is returned to the treasurer, with a warrant directing the sale of the land for taxes. The treasurer thereupon advertises the list of lands for four CHAP. I, § 2] Rchdive (Public). 3oa weeks in the Ontario (Jazette, and once a week for thirteen weeks in some newspaper publislied in the county; the day of sale must be more than ninety-one days after th<' first publication of the list. If at the time appointed for the sale no purchasers appear, the treasurer may adjourn the sale. If the taxes have not previously been collected, or if no person appears to pay them at the sale, the treasurer then sells by public auction so much of the land as is sufficient to discharge the taxes and expenses. All he need sell is so mut'h of the lot as may be necessary to secure the payment of the taxes due. If at that sale the full amount of arrears of taxes due is not realized, then at an adjourned sale, not earlier than one week nor later than three months afterwards, which must be advertised, the lands must be sold for any sum the treasurer can realize, and that sum must be accepted in full payment of tlie arrears. The council of the municipality may bu,\ the land at the price realized at the adiourned sale. After the sale the Ja^certi- . . ncate. treasurer must give a certificate to the x>nrcluiser stat- ing distinctly what part of the land and what interest in it have been sold; the quantity of land, the sum for which it has been sold, and the expenses of the sale, and stating that a deed conveying the land to the purchaser or his assigns will be executed by the treasurer and warden at any time after the expiration of one year from the date of the sale, if the land is not previously redeemed. Thereupon the ])urchaser becomes the owner so far as to have all necessary rights of action and powers for preventing spoliation or waste until the ex- l)ii'ation of tlie term during which the land may be redeemed. He must not knowingly allow any timber to be cut, nor can ho otherwisej injure the la.id, but he may use the land without deteriorating its value. From the time of the tender to the treasurer of the full amount of redemption money required, the purchaser ceases to have any further right in or to the land in question. The owner of any land sold may at any time Redemp- ^ w^ithin one year from the day of sale, exclusive of that ''""' day, redeem the land by paying or tendering to the county treasurer the sum paid by the purchaser, together 804 Rights of Persona [part I I with ten per cent, interest. The treasurer must then give the person a receipt stating the amount paid and the object of payment, and the receipt is evidence of the redemption. If the land is not redeemed within the Ta> deed, year, then on payment of one dollar the treasurer and warden must deliver to the purchaser a deed in dupli- cate of the land sold, the deed must be registered within eighteen months of the sale, otherwise persons claim- ing under the sale are not deemed to have presf^rved their priority as against a purchaser in good faith who has registered his deed prior to the registration of the deed from the warden and treasurer. Whenever lands are sold for arrears of taxes, and the treasurer has given a deed for the same, that deed is valid and binding, ex- cept as against the Crown, if it has not been questioned before some Court of competent jurisdiction or some per- son interested in the land sold within two years from the time of sale. In all cases where lands are sold for ar- rears of taxes, then so far as regards rights of entry adverse to any bona fide claim or right, whether valid or invalid, derived mediately or immediately under tht; sale, then section 9 of the Act respecting the Law o*^ Transfer of Property does not apply.* In such cases the right or title of persons claiming adversely to any such sale shall not be conveyed where any person is in occupation adversely to such right or title. The com- mon law and sections 2, 4 and 6 of the statute passed in the 32nd year of the reign of King Henry VIII. c. I>, VIII. c. 9. are revived. This statute forbids persons transferring ; pretended titles to land unless the vendor has received ithe profits for one whole year before the grant, or has been in actual possession of the land or of the reversion or remainder. The penalty for contravention is that both purchaser and vendor forfeit each the value of the iand. Attempt- ed trespass of riglits of entry. R. S. O. c. 100. 32 Hen. Actions for re. OOVP! > ■ land for ta^v; - /here lands having been legally liable to be as- jf x;.-f.i '■»• taxos are sold as for arrears of taxes, and the )• ^')i section, rights of persons out of possession of land may ■A' V; i t . \ i by deed. As stated in the text, a tax sale makes such a tra.) tjJ.i iJuuiona. It becomes a legal offence to attempt to make it. CHAP. I, § 2] Relative (PuhlicJ. 305 as- the sale or the con/oyance is invalid by reason of uncertain and insuflflcient description, and tlie ripht or title of the tax iiurchaser is not valid, and where the tax pur- cliaaer has entered on the lands and improved Ihent. then in an action for recovery of lands brought against the tax purchaser, if he is ejected by reason of the in- validity of the sale or conveyance, the Judge befor.* whom the action is tried must direct the jury to assess, or must himself, if the case is tried without a jury, assess damages for the defendant for the amount of the purchase money at the sale, and interest and all taxes paid since the sale, and any loss to be sustained in con- sequence of any improvements made before tlie com- mencement of the action by the defendant, less all jus( allowances for the net value of any timber sold otT the lands, and all other just allowances to the plaintiff, and must assess the value of the land to be recovered. If verdict is for the plaintiff, no writ of possession can issue until the plaintiff has paid into Court for the de- fendant the amount of these damages. If the defendant desires to retain the land he may retain it on paying into Court on or before the fourth day of the next sitting, or any date to be fixed by the Court, the value of the land as assessed at the trial. After this payment no w rit of possession can issue, but the plaintiff, on deliver iug into Court for the defendant a suflicient release and conveyance, becomes entitled to the money paid in. If the taxes for non-payment of which the lands have been sold have been fully paid before the s.'ile, or if within the time allowed for redemption a sufficient tender has been made, or if on the ground of fraud by tlie pur- chaser a Court would grant efjuitable relief; in these cases the purchaser has no right such as that just described. If more than one person is interested in the land for some partial estate therein, then the money is re- tained in Court until a siifficient release is got from all parties. If the defendant does not pay into Court the value of the land assessed at the trial, then any other person interested in the land under the sale or convey- ance for taxes may pay the amount into Court before K.B.— 20 i;:! I 'I \tf. 30(5 Rif/hts of Persona [PAUT I tlio end of the Bitting, or before the expiry of ninety days from any day to be nniiied by tlie Court ; till tlie ex- pirn tion of tlmt time no writ of poHsession can issue. If the value of tlie lands is not paid into Court, then tlie fimount of tlie daniajjces paid in must be paid out to the different persons who, if tlu' sale for taxes were valid, would be entitled to the lands as th(! Court may direct. Costs may be allowed to the defendant if he, at the time of ent^'rinp: his appearance to the plaintid's writ of stminions, f^ave notice to the plaintiff of the amount claimed, and that on payment of the amount the land would be surrendered, or that he desired to retain the land and was ready and willing to pay into Court a sum mentioned in the notice as the value of the land, and that the defendant did not intend at the trial to contest the title of the plaintiff; if it satisfactorily appeare that the di'fendant does not contest the action for any other purpose than to retain the land on paying its value or to obtain damages, then the Judge must certify that fact upon the record; thereupon the defendant is entitled 1o his costs of defence. Every local municipal council, in paying over any mad^trlll^d ^chool or local rate, or its share of any county rate, or by council, any other tax, must supply out of the funds of the muni- , clpality any deficiency arising from the non-payment of th<' tax. In cities and towns arrears of taxes are col- lected and managed in the same way as in the case of other municipalities. Triplicate blank receipt books must be kept for the purpose of audit. All taxes from non-resident lands may be set apart as non-resident land fund, and so much of this fund as is derived from each municipality forms part of the general funds of that municipality. Debentures may be issued by county councils upon the credit of this fund. As has been stated, all oflScials are liable for delinquency or default in dis- charge of any duties connected with either assessing or collecting, and stringent penalties are enacted to keep them in the line of their duties. Further, treasurers and collectors must give bonds for the faithful perform- ance of their duties. The system of assessment and col- Deticien- -resi- Non-i dent land fund. CHAP. I, § 2] Relative (Pahiic). 307 lection has IhuH bcon (>x]»]niii('(l. It is oiu* of tho most imitoi'tant (liiti(>s <-(»iiiinitt<'arent, it will b«' K iucation seen later on, is that of education. With the advance of modern society it has become ret'ofjnized that tin* state should not only oversee the ediicalioii <»f ehildr'^n, V>ut" also compel it. Accordinj^ly pmvislon is made for a (',„„,,„i. system of compulsory education throughout the pro- pj^JJj||''"' vince. The supervision of all matters relntinj^ to educa- tion is confided to the Minister of Education, and a I)e])artiiient of Education has been established, Avhich I^<'i>nrt- consists of the Executive Council or a committee of the Kducation rouncil appointed by the Lieutenant-(iovernor. The dejtartment has power to make regulations for all matters concerning schools, lieforc? the British North America Act was pass<'d, a system of Komaii ('atliolic u. o. separate schools had been established in Uppei' Canada; ^lljlj^,^*" this system was continued, and special regulations are made with rejjard to these separate schools. With re- gard to the general education of the connii*y, the schools are either public or high schools; next to the high schools stands Upper Canada College, which is a resi- dential high school for the province, and university de- grees are granted by the University of Toronto, which is a provincial institution established for that purpos<\ Public schools are either rural, which are looked after i>,ii,]io by rural school trustees, or public schools in cities, **'^'"'"^*'' towns, and incorporated villages, which are looked after by boards of trustees, called public school boards. All these schools are free, and every person between the ages of Ave and twenty-one years has the right to attend some school. Everv township is divided into school ^ , , [sections, and no section can be formed which con- fet't^tionH. tains less than 50 children between the ages of 5 and 21 years, whose parents or guardians are residents, un- less the section is more than four square miles in area. There are three trustees for each of these sections, who must be resident ratepayers over twenty-one years of age. These trustees elect a chairman and a secretary- BOS Rir/IiU of Persons [I'AIIT I :if UnorRfin- ized town shipH. Townsliip buiirdh;. Union Public Hchool boards. School exuendi- ture, how provided for. trcHHuror, who may bo one of thciuHolvcH, and it \h tluMr duty to take posNCHHion of and hold all publij- HchooI piopoi*t.v in the Hcction. They hire the teacheis; they must provide adequate accommodation, and generally take charge of all school matters; their accounts are audited each year. In unorganized townships the public school inspector may form school sections, which must not exceed in length or breadth five miles in a straiglit lino, and when formed, three school trustees are ap- j)(»nited for each s(?ction. The school sections of town- sliipM without county organization nuiy form township boards, and the township is then divided into wards, and iill the public schools of these townships are uuiii- agod by one board of trustees; this board consists of two from each ward, and is called the Public Scliool Board of the township, they have the same duties as other rural school trustees. Township councils have power to unite sections, or to alter the boundaries of sections, or to dissolve unions, subject to an appeal to the county council. Unions of school sections may be formed between parts of two or more adjoining town- ships and an adjoining town or incorporated village. All questions relating to property or other matters of dis- pute are settled by arbitration. In cities, towns and incorporated villages, the boards of public school trustees liave the same general duties of supervision as are imposed upon rural school trustees; for every ward there are two scliool trusteos, each of whom holds office for two years. In every in- corporated village not divided into wards, there are six trustees; all of these trustees are elected by ballot. The persons who are qualified to vote at those elections are all persons who are ratepayers and who are public school supporters, and also persons qualified under the Municipal Act as farmers' sons. The expenses of schools are provided for as follows: The municipal council of every township levies by assessment upon the public scliool supporters of the whole township the sura of $150 at least for every public school in the township in which a school has been kept open the whole of the year ex- clusive of vacations. When the school has been kept CHAP. I, § 2] Relative ("Public J. 309 open for six months or ov<'r, a proportionate amount of the sum of $150 ih levied and colleeted; :in additional sum of ^U){) \h levied and collet-ted for every assistant teacher onj^ajjed for the whole year, ajid a proportionate J) mount if that assistiint is enfjiipd for six months or over, liesides tliis amount, the nuinicipal council of the township collects from the taxable jn'operty in each sec- tion sucli other sums as may he required liy ti»e trustees for school purposes. In cities, towns and vilhijJCes the municipal council levies suport of public and separate schools, which is apportioned annually to the dirt'eri'ut counties, townships, cities, towns and incorporated villages ac- cording to their population. This amount is payable on or before the 1st of July in every year to the muni- cipal treasurer. The (Jovernment grant may be with- held should the recpiin'ments of the P^ducation De- l>artment not be complied with, and if tlie default is due to the negligence of the trustees, they nmy be personally liable for the deficiency. No person chosen to serve as trustee can refuse to act. Teachers 'iVachcrs. are retinircd to hold certificates, which are of Ihn'e grades. Examinations are held annually, and model schools and teachers' institutes are provided for the edu- cation of teachers. Inspectors are appointed by eouuty inhpectora. councils. One inspector cannot have supervision over mort? than one hundred and twenty schools, or less than fifty; but it is not necessary to ai)point more tlian one inspector in each riding of tlie county. Where there are more than fifty jjublic schools, the county council may ajipoint two or more insjK'ctors; the principal power held by inspectors is to withhold the order for the (Jovernment grant when the regulations of the Public Schools Act or Education Department are not complied with. In cities and towns inspectors are also appointed. When the teachers engaged by the trustees of a city exceed 810 Ji'iflhtH of Persons [IWHT I -I J I Suporan- nuutioii fund Atti'iid- ftlICO of childnn. M Vict. o. (Hi. High achools. High school board. throe huiKlrcd, tlic bonnl iiiUHt appoint two inHpcctoiH, and an additional iiiHpcctor for ovcry thri>(> hundr(>ov«* six liundrrd. Tcaclu'i's arc entitled to HJiare in a Hiiperannuation fund, to wliicli tlH'.v may cond'iltntr. Tin* only hookn whirli ran ln' used in the hcIiooIh are thoH(> authori/icd by llu* Kdiiea tion Deparlnient, and tcacluTH UHinj; unauthorized book.^ are liable to a tine. No teacher, truHtee, inspector, or oflflcial of the Education Department can net aw agent for the sale of bookw. All children between eight and fourteen years of age mnst attend school, unless tht' child is under eflllcient instruction at home, or unable to attend by reason of sickness or other unavoidable cause. If there is no school within two miles, if the rhild is under ten, or within three miles if over ten, or if there is no accommodation in the school which the child has the right to attend, then the attendance is als-o excused. No child under fourteen can be employed by any person during school hours while the public school of the sec- tion or municipality is in session, and any person em- ploying the child is liable to a penalty of twenty dollars. The police commissioners may appoint truant officers to see that the children are kept at school. The assessor^t of every municipality must make an annual list of the name, age and residence of every child between eight and fourteen years of age, and return this list to the clerk of the municipality with the assessment roll. The next schools above the public schools are the high sehools. These schools are established by a county couucil in any municipality containing not fewer than one thousand inhabitants. If a high school district is to be composed of more municipalities than one, then the county council may pass a by-law for the establish- ment of a high school in any incorporated village con- taining less than one thousand inhabitants within the proposed district if the adjoining municipalities have united with the village so as to constitute a district con- taining at least three thousand inhabitants. Each high school district is presided over by a high school board, consisting of at least six trustees. Where high schools are constituted in any municipality within the jurisdic- ClfAl'. I, § 2] Relative (Public). n\ tlon of tho connt.v, thn^' of tho truHtccH ar»' nppointetl by Ihc counf.v rounril, llic otluM'H hy thr iuuiii('i|>iili(i<'H. Tlic tniHt«'OH have tlic Haiiu' general powcrH of HupcrviHioii and inanaf^cnii'iit aH pJiMIc! hcIiooI truHtct's; sitrs for lii^jli «('hoolH arc obtained if n«M'cHHary by appropriation, tlu' value bcinfj; Hcttlfd by arbitration. T\u- liijili Hcliocds ai'c niaintaincil by a (lovcrnnicnt ^rant and a municipal grant, tli(» latter bcinj; cn. No hifjh s(;hool which is not con <]ucted according? to the llif^h School Act and the regu- lations prescribed by the Kducaticm Department can re- ceive any part of the high school fund. There is tin- same prohibition of the use of unauthorized books as in the case of i)ublic schools. Separate schools may be either Protestant or coloured, or Konum Catholic. Upon Urn application in writing of five or more heads of families, the mui;icipal council of any city, town or incorporated village must authorize the establishment of a sei)arate school for Pro testants, and upon the like application the council must <>8tabli8h one or more separate schools for coloured peo- ple, and in each case must i)rescribe the limits of the section. None but coloured people can vote at the elec- tion of trustees of any separate school established for coloured people, and none but the persons petitioning for the establishment or sending of children to a Protes- tant se[)arate school can vote at the election of trustees lor that school. There must be three trustees for eacli separate school, and no Protestant separate school can be allowed in any school section except when the teacliei' of the public school in that section is a Roman Catholic. Wherever separate schools exist, evei-y Prctt slant o- coloured person, as the case may be, sending his child- ren to that school, or supporting the school by subscrib- ing annually an amount equal to what he would pay if (inVtTll- iiii'iit iiiid iiniiii('i|iiil LTilllt 8uh Juls. 312 Rights of Persons [part I n^ tho school did not exist, is exempt from payment of rates for the public schools. These separate schools cannot share in school money raised by local municipal assessmen, "or public school purposes, but they share in the Legislative public school grant according to the num- ber of their pupils. Roman Catholic public schools are formed in the same way; there are rural schools for townships, and urban schools for cities, towns or incor- porated vilhiges. The general duties of trustees are the Separate same as those of i)ublic schools. Separate school boards school boarda. may be formed in cities, towns and incorporated villages. Every person paying rates, whether as proprietor or ten- ant, who gives notice to the clerk of the municipality that he is a Roman Catholic and supporter of a separate school, is exempt from payment of all rates imposed for the support of public schools while he continues a sup- Who are porter of a separate school. No person is deemed a sup- *V''!'*'r,*„™ porter of a separate school unless he resides within three rate school miles of the site of the school house. A person who is a non-resident of a municipality may require his school (ax to be appropriated to a separate school. The assessor must distinguish in t!ie assessment roll between Pro- testant and Roman Catholic supporters, and must accept the statement of any ratepayer that hi is a Roman Catholic as suflicient evidence for placing that person on the roll as a separate school sui)porter. In every case where land is assessed against both the owner and occu- pant, or owner and tenant, then the occupant or tenant is to be taken as the person primarily liable for the i)ay- ment of school rates, and for determining whether the rates are to be applied to public or separate school pur- poses; and no agreement between the owner or tenant as to the payment of taxes as between themselves can be alloved 1 • alter this presumption. If, as between the owner and tenant or occupant, the owner is not to pay taxes; if by the default of the tenant or occupant the owner is compelled to pay his school rate, then the owner may direct it to be applied to other public or separate school purposes. A company may require any part of the real property of which it is either the owner and occupant, or tenant, and any part of its personal CHAP. I, § 2] Relative (Public J. 'SV^ •on aso •u- ant «y- tbo lal property liable to assessment, to be applied to separate schools. The trustees may require the council to collect through their collectors or other mur icipal officer the separate school rates, or may agree with the council for the payment of a fixed proportion of the total rate as their share. Separate schools are entitled to a share of the siiare in annual grant made by the Legislature dependent on thegrant?''^^ number of pupils attending the school, but not to any school moneys arising from local assessments for public school purposes. The trustees have the same liability for default or neglect as those of public schools. There is no rule as to the use of text-books, as in the case of public schools. The constitution and organization of Upper Canada i:,,|Kr College and the TJniversity of Toronto are somewhat Jj;';}','"'^^ foreign to my purpose, and I do not i)ropose to enter into the dt^tails of their organization. They form the com- pletion of the system of public education of Ontario. Its essential features are that it is compulsory but free, and it is kept entirely within the control of the people themselves, who tax themselves for its support, and who elect from themselves persons responsible for its main- tenance. This brief view of tlie system will furnish sufficient indication of its salient features. Statutes Uelatina to Matters lie/erred to in Above Section— (Statutes of Ontario.) PAOE ' 271.. Municipal Institutions Act— 1802 c. 42; 1893 c. 3a; 1694 cc. 50,56; 1805 0. 42; 1800, c. 61. •..Municinal Light and Heat Act— R. S. O. c. 191 ; 1805 c. 40. *. .Municipal Water Worka-R. S. O. c. 192 ; 1800 c. 53 ; 1893 c. 37. 290. .Assessment Act— 1892 c. 48 ; 1893 c. 38 ; 1894 c. 57 ; 1895 c. 47 ; 1896 c. 58. 280. .Drainage Act— 1804 c. 50 ; 1805 c. 55 ; 1890 c. Ot>. *. .Municipal Arbitrations — 1895 c. 43. '..Convictions under Municipal By-laws — 1895 c. 41. 273. . Reduction of number of County Councillors — 1890 c. 52. 283.. Provincial Municipal Auditorp — 1*'90 c. 54. 307.. Education Department- 1890 j. 09. .SO?.. Public Schools— 1890 c. 70. 310.. High Schools— 1800 c. 71. 311. .Separate Schools-R. S. J. c. 227 ; 1800 c. 71 ; 1804 c. 50 ; 1806 c. 72. 310.. Compulsory Attendance— 1801 c. 50. • These Statutes are not dealt with in the UNt. I 814 Rights of Persons [part I CHAPTER I. SECTION 2— Continued. RELATIVE RIGHTS OF PERSONS (PUBLIC). I MiiNiciPAii Matters Geneually. pcblig mouals. Ontario Liquor License Act. Board of License Commis- sioners. Accommodation Required for Taverns and Inns. Wholesale Licenses. License I'und. Clauses Prohibitory of Sale of Liquor. Canada Temperance Act. Procedure to Bring Act into Effect. Declaration that Act in Force. Revocation of Act. Exceptions to Operation of Act. Sunday OnsunvASCE, PllOTEClION OK C'HILDREN. PuiiLio Hkalth. Provincial Board of Health, Medical Health Ofiicor. Local Board of Health. Health Otlicers. Notice of Infectious Diseases. County Medical Health Olli- cers. Inspection of Staple Articles. Butter and Cheese Manufac. ture. PiioiEuTioN OF Persons — 8eo next section. Protection of PiiorEUTY. Preservation of Forests from Destruction by Fire. The Protection oi Sheep. Investigation of Accidents by Fire. PiSOTECTION OF GaMR. De.stroying of Wolves. Miscellaneous Municipal Mat- ters. Exemption of Firemen from Curtain Duties. Pul)lic "Libraries. Public Parks. Giis and Electric Lightin<; and Heating. Vuter-worhs. IlKillWAYS. Rules for Travelling on High- ways. Exemptions from Tolls. Snow Koads for Winter. Snow Fences. Traction Engines. Bridoes. Ferries. Having oxplniiuHl tho formation of municipalities in the province and their mode of self-government, and their i)owers and procedure with regard to taxation and education, I now pass to the examination of otlier muni- cipal questions, which are also dealt with by municipal councils. It has been considered by the Local Legisla ture that the interests of the community are best pre served by confiding these matti'rs 1o the respective muni- cipalities, thus leaving the Legislature itself free to deal CHAP. I, § 2] lielat ive (Publ ic). 315 with other matters alTectin}; the province as a whole, and not interferinjr exempt to cheek abuses or provide niacliiuery for carrvinjj out tlie measures deh*}{ated lo The municipalities. Tliese matters may be sub-divided ;is follows: 1. Public Morals. 2. !• ublic Health. 3. Protection of the Person. 4. I'rotection of IM'operty. 5. Protection of (Jame. U. General miscellaneous matters. 7. Highways, IJridges, Ferries. 1. Public Morals. The most striking interference of I'tiblic the slate with regard to public morals is in the case of """''"■ the legislation with reference to the trattic in spirituojis liijuors. The Legislatures of the Dominion and of the province have both dealt with the nuitter. There has been much discussion as to which of the two Legisla- tures has power to make laws governing tht' liquor traf- j,iq„„r (ic. l\y referring to tie table of cases on the British '"■''"^'*"- North America Act. printed on page 2- above, it will be seen that the I'ight of the ]>ominiou to legislate for the prohibition of the sale of li(iuor to the extent ]>r(»- vided for by the Canada Temperance Act has been sus- tained. The right of the i)rovince to regulate the li(iut)r liailic by imposing licenses, etc., has also been sustained. A case before the Judicial Commit t(V of the Imperial Privy Council, brought to test the question where the power over the liquor trattic really lies, his been de- cided while these pages have been going through the press. The questions sulimitted to the Privy Council are stated below, with the answt'rs given by the Judicial Comnntt"e added to eaih.* It may be sjiid that the legis- * 1. 'las a Provincial Legislature inrisdictinn to prohil>it the sale within province of spirituous, fernu-ntoil or otlier intoxicating? li<]Uor8? iv ' —No— only as in answer to 7. 2. Or liaa the Legislature sucli jurisdiction regardinn auch jwrtions of the Province ns to which the Canada Tenipcrnnce Act is not in opcr- fttion? AuB — No— only as in answer to 7. :,*> #■ m 'M'x 316 Rights of Persona [pa 111- I R. s. o. c. 194. License cummis- sioners. lation of tlio Dominion iias, so far, boon passed in the direction of total prohibition of the liquor traffic. That of the province is in the direction of regulating that traffic. The provisions of the provincial law may be stated as follows: Liquor can only be sold in licensed houses. A license to sell liquors by retail cannot be granted except upon petition by the applicant to the license comniis- 3. Has a Provincial Legislature jurisdiction to prohibit the manufac- ture of such liquors within the Province ? Ans. — Yes. 4. Has tiie Provincial Lejjislature jurisdiction to prohibit the im- portation of such liquors into the Province ? Ans, — No. 5. If a Provincial Lejjislature has not jurisdiction to prohibit sale of such liquors, irrespective of quantity, has such Legislature jurisdiction to prohibit the sale by retail, according to the definition of a sale by retail, either in statutes in force in the Province as at the time of Con- federation, or any other definition thereof ? Ans. — No — only as involved in above. 6. If a Provincial Le;,'islnture has a limited jurisdiction only as regards the prohibition of sales, has the Legislature jurisdiction to pro- hibit sale subject to the limits provided by the several sub-sections of the 99th section of " The Canada Temperance Act,'' or any of them ? Ans, — No — only as in above, 7. Has the Ontario Legislature jurisdiction to enact the 18th section of the Act passed by the Legislature of Ontario in the 53vd year of Her Majesty's reign, intituled "An Act to Improve the Liquor License Act," as said section is explained by the said Legislature, in the 54th year of Her Majesty's reign, and intituled " An Act respecting Local Option in the Matter of Liquor Selling " ? Ans. — Yes — but only operative until adoption of Canada Temperance Act, Section 18 of the " Act to Improve the Liquor License Act " — referred to in question 7 — enacted as follows : " The council of every township, city, town and incorporated village may pass by-laws for prohibiting the sale by retail of spirituous, fer- mented or other manufactured liquors in any tavern, inn or other house or place of public entertainment, and for prohibiting altogether the sale thereof in shops and places other than houses of public entertainment, etc," This decision really means that the Ontario Legislature has no power to prohibit the sale of liquors, either by wholesale or retail, but that there is power to so prohibit by local option ; and that the Legisla- ture has not the power to prohibit the importation, but that it may pro- iiibit the manufacture of spirituous, fermented or other intoxicating liquors. The power to manufacture is allowed to the Province, but it has no power to prohibit the sale except locally. If the sale of liquor is legal, the former will be difficult, if not impossible, to restrain. The result will probably be that total prohibition of the use of liquor in Ontario will no more be heard of. The admitted evils of the immoderate use of liquor must be grappled with in a more sensible way. Medical science must deal with the question as partially one of disease, and in cases where ordinary medical remedies fail, incarceration must be adjudged for such sufficient period as medical men advise to allow of compulsory treatment. I am convinced that in this direction is the true line of reform. CHAP. I, § 2] Relative (Public). 317 eioner of the district iu which the license is to have effect. A board of license commissioners composed of tliree persons is appointed by the Lientenant-Governor tor each city, county, union of counties, electoral dis- trict or licensed district, as the Lieutenant-Governor may think fit. These license commissioners determine the conditions and qualifications upon which a license may be granted; they may limit the number of licenses; they may exempt from having all tavern accommoda- tion required by law a few persons according to the population of the place. They have the power of regu- lating licensed taverns and shops, for licenses may be: Tavern, shop, or vessel licenses. A fee is charged by Government, upon i)ayment of Avhich the license nuiy be obtained. No license can be granted on a ferry boat. Every tavern or inn authorized to be licensed must con- Tavern tain, in addition to what may be needed for the use of i>ceiisf. the family of (he keeper, not less than four bedrooms, and in cities, six bedrooms; there must also be attached proper stabling for at least six horses. The tavern or inn must form no i)art of and shall not communicate by any entrance with any shop or store in which grocer- ies or provisions are kept for sale. Security must be given bj' the tavern-keeper by bond of $200 to observe all by-laws. Wholesale licenses may be issued to per- ^^ sons who carry on the business of Si'lling by wholesale IkvuM- or in unbroken packages. Manufacturers of native wines from grapes grown in Ontario, and who sell these wines in quantities of not less than one gallon or two bottles of not less than three half-pints each, are exempt from duty and need not obtain any license. Licenses may be transferred by permission of the inspectors. Every liquor license is held to be a license only to the person named in it, and for the premises described in it ; it remains valid only so long as the person continues to be the occupant of the premises, and the true owner of the business there carried on. The license fund is dis tributed, one-third to the treasurer of the province, the fu"'^- other two-thirds to the treasurer of the municipality. The penalties for infringement of the liquor license by- laws are exceedingly stringent. Very slight evidence lulusiill" License 818 Rights of Persona [part I m ¥ ¥ Canada Temjjer- ance Act. R. S.C. c. IOC. is sufficient to put tlie person wlio is prosecuted to the Accidents proof tliat lie is innocent. If any person lias drunk to to drunken . . , i ' i •! j i i. perHons. exccss HI any inn or tavern, and while drunk has come to his death by suicide or drowning, or other accident, the iniikee^per or tavern-keeper is liable to an action for danias;es for the death. This action must be broujj;ht within three months after the decease by the legal per- sonal representatives of the deceased; in this action they may recover not less than $100 nor more than $1,000. as may be assessed as damages. The legislation of the Dominion on the subject of the liquor traffic may be summarized as follows : The object of the Dominion statute known as the Canada Temperance Act is the total prohibition of the sale of lie in any county or city. After the Act is brou^-] •', ^orce, as presently explained, no person can ^iCnui any county or city, by himself, his clerk, servant or agent, expose or keep for sale, or directly or indirect', on ;.' pretence or upon any device, sell or barter, or in <*oi\vsideration of the pur- chase of any other property, give to any other person any intoxicating liquor. An exception is made in cer- tain instances, presently referred to. The mode of bringing the Act into effect is by petition; the petition must be signed by one-fourth or more of all the electors in the county or city named in it. Notice is given by the petitioners that they propose to present to the Governor-General a petition declaring the Act to be in force. The signatures must be verified by affidavit; it must have been deposited for public examination by any person, for ten days before it is read before the Secretary of State, in the registry office for the county or city; two weeks' previous notice of the deposit must also have been given in two newspapers published in the county or city, and by at least two insertions in each paper. If it appears that these requisites have been complied with, the Governor-General may issue his proclamation setting out the notice, the number ol signatures, and a day on which a vote will be taken for or against the petition. The question as to whether CHAP. I, § 2] Belative (Public). 819 u|Kin oil ot Act. of tion tors by the e in . it by tho inty lust in s in lave sue r ot for ther the Act shall be broiicht into force or not is then voted Voting "^ u|Kin "■ npon; all persons who ar': Act. The statute is founded upon the Act known as The Lord's Day Act, passed in the reign of Charles II. Tliis latter Act is fully comprised in the Ontario Act. The Ontario Act is somewhat wider in its terms than the English Act. Neither statute mak<'s all work or business done on Sun- day illegal; but only carrying on trade and ordinary callings on that day. Farmers are now brought within the operation of the Act. 2. The next subject, in the order above stated,* is I»ublic Health. For Ontario a I'rovincial P»oard of Health is consti- tuted, consisting of not more than seven members, ap pointed by the Lieutenant-fJovernor in (,'ouncil for three years; at least four members of the board must be duly registered medical practitioners. This board takes cog- nizance of the interests of life and health among the people of the province; they are instructed to study » • See page 315, ante. K B.— 21 Diiy Act. It. S. (). c. -11,!. 2!»Car. 11 c. 7. Hoj.kli. Provincial IJoar i 1(1 Health. R. S. C. c. aOV J:. I . m 1 - 1.-\ 'ii'' K- VWJ 822 hUjhlH of Persons [PAUT I ' 1 1! ii eKfKM'ially its vital HhitisiicH and to niak*' an intcIIiKont and profitable uh(? of the colhMted records of death and MckneHS amon^i^ the people ; they niUHt make sanitary investif^ation and incpiirieH reHi»e<'tinf; causeH of disease, and especially of epidemics; th(» causes of mortality and the effects of localities, employments, conditions, habits and other circumstances upon the health of the people; they must mak(? supgestions as to tlu? prevention and introduction of contaj^ious and infectious diseases; their duty is further to inquire into the measures taken by local boards of health, and if it appears that no eflicient measures are being taken by these local boards, then the provincial board may call upon the local board to exercise and enforce their powers; if the local board do not do 80, then th(? provincial board may, at the expense of the municipality, exercise any of the i>ower8 of the local board they may consider necessary. When required, or when they deem it necessary, the provin- cial board must advise the Government and local boards of health in rejfard to the public health, and as to the means to be adopted to secure proper location, drain- age, water supply, heating and ventilafion of any public institution or building. One of their chief duties is to see that the supply of proper vaccine matter is obtain- able at all times for the use of the .evince. Whenever the province is threatened with any epidemic, endemic or contagious disease, the Provincial Board of Health must issue the necessary regulations for cleansing of premises, the removal of nuisances, interment of the dead, supplying medical aid, house to house visitation, and regulating the departure of persons and convey- ances. The board may determine how far its regula- tions shall affect any particular district. Land may be acquired by the board for purposes within its powers. In case of actual or apprehended emergency, possession may be taken, without a prior agreement with the owner of the land or building and without his consent, and may be retained as long as may be necessary by the board. W^ritten notice must be given within five days after the taking or obtaining possession to the clerk of the local municipality; this notice must be given mm CHAP. I, § 2] liddfnr (Public). 323 wlu'tlicr }K)Ks«'HHi(m is takrn or ohtaiiu'd with or witlionl Ibc conHcnt of tlu? owikt. Wilhin live davs aflvrwanlw the board muHt ^ivo noti<«' to tlu* owiior, wli<» in rntlth'd to coinpouHation from th«' local niunicii>ality for llu' uhc and occujiation of the land or buildinjj. In caHO of dlH- agrccnicnt, the Judj^e of llic (Joimty Court Hunimurily detcnnineH tUe amount to b(? paid. Where any rcHiHt- anoe or forcible opposition is made to taking any land or buildinj;, the Judp* of the (bounty Court may isHue a warrant for poHseHHion. No land or building; can be used for health pui'pi^HeH which in within one hundred and fifty yards of an inhabited dwelling. Investit^a- tions can be made l>y the provincial board into any com- plaints of remediable unsanitary coni^Mion or nuisance. Whenever the establishment of a public water supply or system of sewerage is taken up by a mumci])al coun- cil, tlu* system must be submitted to the provincial board for tlu^ir approval, and cannot be constructed nntil the report of the board is transmitted, approving of the i)ropo8ed plans. A medical health oflicer may b(* w ••,. j appointed by the provincial board for any municipality Health Officf p in which any formidable contagious disease api»ear.s. The appointment must be made by the council of the municipality within five days after noitice from the pro- vincial board; if not nuide, the Lieutenant-Governor may appoint a medical health oOicer. During his tenure of ofl[i(;e he has all the powers and authorities of any health inspector or sanitary inspector, and tlu* fact that similar duties are by statute imposed on the local board of health does not relieve the medical health officer from performing the same duties. Municipal and school elec- tions may be f>08tponed on account of the prevalence of any epidemic or contagious disease for any period not exceeding three months. When an election is post- poned for any such reason, then the existing councils are continued in office until their successors are elected. In each township and incorporated village there is a local board of health, composed of the reeve, clerk, lie. ml <£ and three ratepayers appointed annually by the muni- **^'^^''*' cipal council. In each town containing less than four thousand inhabitants the board of health consists of the Hm ?'!' 'i'i m 324 Will /its of person H [I'AllT I ill'! liii' lloalth oftici'i'H. iiuiyor, rh'i'k, jind tlin-c nilopnyiTs appoiiitcd annuully b.v (he ('(niiK-n. For rnch i'liy uiul town oonfainin;; iiiopc tlijin four llionsiMHl inliiil)it]in(H, tlu' local board of licallh ronHisls of Mir mayor and oi^lil ratcpayi'r.s, ap pointed aiunially by the municipal <'onncil. Two or more connlicM may uni(e in their respective miinici- ])alitieH in each health s }»en- ^ erally. The local board ?i!!:y apply to the provin«'ial board to inv«'stl;;ate and report \\]un\ any nuisiince involvinj; diflicuH considerati«mH. Local boards may authorize any two medical practitioners to enter any premises in the day time, for the purpose of making inquiries as to the state of health of any ])er8on on the premises; and, on tin- report, of the medical ])ractition- ors in writinji recommendinf; that course, the board may cause any juM'son found infected with contagious or in- fectious disease to be removed to some hospital. The report must state that the person can be removed without dan};:er to life. The inhabitants of any dwelling-house in any city, town, villajj^c or township, may be ordered to remove from any dwelling-house or out-house used as a dwelling-house, should the hefilth olticers think such a course necessary; in case of refusal, the health officers may call in the assistance of constables and peace olti- cers. When a certiticate of a medical health oflflcer or any other legally qualified medical practitioner is fur- nished that j)remi8e8 require to be cleansed and disin- fected, the local board of health must give notice in writing to the owner of the premises, requiring him to • •IIAP. I, § 2] licbldrr (I'iihJn). :)25 n t) clciiiisc iinriiiilt, iiiiii Hk' work iiiiiy Im> done by (lie local board at the expense of the owner. Iloiiselndders hav- inffctiouH , , . ,, ., , III II i< I It • the seci'ctary u\ the local board, «d" the existence of the disease. No member of the houseliobl can attend the sclaxd until a cei'liticale has been obtained from the physician in <'har}j:e that infection no loiii^^er exists in the house. Smallpox hospilals may be erected t>y municipalities; these hospilals may be either perma- miil. or limporary. If an order of any local board of iK'allh or health oHicer involves an expenditni*e of more than ij^lOO, there is an a|>i)eal to the Counly Ji;djj;e a;i;5iinst liie order. A <'ounly council may appoint one AppciUs to or more of the county or district medical health (>iri('<'rs. ,|,',''j|?,.;^ All the powers possessed by every iiK'dical health olVic*'!* within the county are then transferred to and vested in the county health oHicer, and all sanitary inspectors are subject ti) his direction and control. The inspection of staple artiides has been provided inspection for by Dominion lefj;islation. It is a niattei* afToctini:: ''^^^^' 326 RufhtH of PCVHOVH [PAUT I CJlieese and butter inanutac- tiire. Protection of tbo person. R. S. O. c. 1»09. Protection of pn>i>- erty. Fire dis- triuts. public health in a groat degree. Provision is made to prevent adulteration of food products and agricultural fertilizers. Inspectors of articles such as flour and meal, wheat, beef and pork, ashes, flsh, butter, bather and hides, may be appointed by the council, and these inspectors have powers of grading and otherwise secur- ing proper value to purchasers. A Gas Inspection Act has also been passed by the Dominion; a Petroleum InspiM'tion Act has also been passed. Fraud in the manufacture of cheese and butter has been the subject of legislation by both Dominion and Province, the former in their Criminjil Code and the latter by special Act. A person sending to a cheese manufactory any milk diluted with water or skimmed milk, or keeping back ** strippings," or knowingly selling tainted or sour milk to such a manufactory, is liable to a fine of not less than one dollar nor more than fifty dollars. Anj' butter or cheese manufacturer who fraud- ulently uses for his own benefit any of the cream sup- plied is liaole to the same fine. 3. The next subject, undei' general miscellaneous matters, is the Protection of the Person. This subj«'ct will be dealt with afterwards when we come to speak of the subject of Master and Servant, excu'pt ou one point. No person can retain or receive for hire or award, for the purpose of nursing or maintaining infants apart from their parents, for a longer period than twenty-four hours, except in registered houses, more than one infant or twins under the age of one year. The municipal council must register all persons who keep nursing houses, and should a death occur in any such house notice of the death must be transmitted witliin twenty- four hours to the coroner, who must hold an inquest, unless a certificate is produced by a registrar or medical practitioner specifying the cause of death. 4. The next heading, under general municipal mat- ters, is the Protection of I'roperty. The Lieuten.iJit-Governor may, by proclamation, declare any part of the province to be a fire district, and when so declared the following regulations are made [nat- ion, and lade CHAP. I, § 2] Relative (Public). 327 as to flros within the district : No person can set out or start a fire in the woods between the first day of April and the first day of November, except for clearinj; land, cooking, obtaining warmth, or some industrial purpose. Every care and reasonable preeautioii to prevent the fire from spreading must be taken when ;i fire is set out for tlw purpose of cleanng any land. Persons making fires in the forest, or close to it, or upon an island, for any of the above purjioses must observe every reasonable care to prevent the fire from spreading, and carefully extinguish it. Locomotive engines on any railway passing through a fire district must be provided with the most approved and efficient means to prevent the escape of fire from the furnace or smoke stack. Penalties are imposed on all persons infringing these rjles. Any person may kill any dog which he sees pursuing, protection worrying or wounding any sheep or lamb. If a person "^ sheep. has in his possession a dog whi(;h has within six months H. a. o. worried and injured or destroyed any sheep, the justice of the peace may issue his summons, directed to that person, to answer any con^plaint made with regard to the dog; if convicted, the dog must be destroyed. Any action for damages may be brought concurrently with this proceeding. The owner of any sheep or lamb killed or injured by any dog is entitled to recover the 1 damage from the owner or keeper of the dog upon an action for damages, or by summary proceedings befon? a justice of the peace, and the aggrieved party is en- titled to recover, whether the owner or keeper of the dog knew or did not know that it was vicious or accus- tomed to worry sheep. Damages, when done by dogs, the owners of whicli ari' either known or unknown, may be apportioned, so that all, when known, may bear their share of the penalty. When notice is given to the owner gr keeper of any dog that it has injured or wor- ried any sheep he must, within forty-eight hours, kill the dog ; if he neglects to do so he is liable to fine. The owner of any sheep or lamb killed or injured by any dog, the owner or keeper of which is not known, may 't^i m >* ii^f 328 RufJits of Persons [I'AUT 1 U. s. o, v. L'Ki. apply within throo inonths to the council of tho muni- cijuility for conipcusaHon for tlio injury; if the council is Hatinflod tliat tlic owner of tlic do;? cannot b(^ found tlioy must award to tlio aggrieved party a sum not ex- ceeding two-thirdH of tlie amount of tlie damage sustained by liim. On payment over of tliis amount tlie munici- pality b<'comes entitled to the clitim of the injured party ft^hould the owner be discovered. If sheep or Iambs are killed or injured whih.' running at large upon any high- way or nninclosf'd land their owners have no claim umiei' the Act to obtain compensation from any municipality. Provision is made to prevent the spread of coiv tagions diseases among horses and other domestic animals by destroying them. InrcHtipa -^^y coroucr, as has been already stated, within Vn"'*f"^- whose jurisdicti<»n a lire has occui're'i of rsime. The game laws of Ontario have an object different to that of (he laws on that sub- ject in Knghunl. The Lieutenant-(5overnor ai)points tisli and game commissionei's for the pi'ovince. lie also appoints a game and lish warden, and als,> four other wardens. The boaid appoints also as many deputy wardens as are necessiiry. Game is protected by providing a close season, through which it cannot be hunted, taken or killed. Trapping, batteries, swivel-guns, sunken i)unts are for- bidden. Infringements of the regulations of tlu' statute are punisliabh' by line ,nid imprisonment, and in all cases conliscation of game. The above named otti- cials must seize all game illegally taken and summon I'lMriotion fiC) "Vict, c. 49. mm. CHAP. I. § 2] Relative (Fublic). 82l> ire ■io ii ■US. 3011, ('(]. for- JswW all otti- non R. so. i;. s. (). offciidcrK for UhmmIi of \\w law. In order to be able to kill d('<'r a lircnsc \h rciinircd. Jiirds bciu'flcial to njjjricnlturt' an* not Jillowcd to bose of i)rote('tiMK his fruit, may kill robins and eherry birds. Except wihl birds, snch as those jibove named, no birds can b(? trapped or sold, nor can their n«'sls be injured; ofTenders arc liable to |»unishi:ient by line and ini[)rlsonment. ()n(^ of (he relint provided by law. TIic corporation Iuih a rciucdy over ajjjaiiist any person who liaa cansed the action by obstrnction or otherwise. Ti'avcllinjj: on hi^jhways and bridges. The rnles for travellin^j; on hij^hways are as follows: If a i)ei'son travellinjc on a hijjhway in charge of a vehicle meets another vehicle, he innst turn out to the rijifht from the centre of the road, fjivinj^ the other vehicle one-half of the road. If a jx'rson travellinj^ on a hi}?hway is overtaken by any vehicle or horseman, the person overtaken must turn out to the ri^ht and also allow the other to pass; the j)erson overtakinj^ must turn to the left, leaving the person passed on his ri^ht. If one vehicle is overtaken or met by another, and by reas(»ii of the e.vtreme w<'i^ht of the load oi\ either of the v<'hicles the driver cannot turn out, he must stop, and, if necessary for the safety of the other vehicle, and if re(|uired to do so, he must assist the other person to l)ass without dama}j;e. Ternons who are so drunk as to be unable to manajjje their v<'hicles on the hi}.^hway are liable to a tine of not less than !i?l nor more than .flit). liacinjj. furious driving;, shout in?;, blasplu'inous or inde- cent lan}»ua}i(> upon hij;hvvays are forbidden. When sleifjfhs ar<' used on a hif^hway they must have at least two bells attaclu'd to the harness. Wherever toll roads exist in the province there are certain exemi»tions from tolls; these are: 1. ^'olunteers in uniform, li. Persons j^oinp; to or returnini; from divine service on any Sunday or statu- tory holiday Viitli their families and servants. Vehicles, horses or cattle belonj^ing to the proprietor or occupier of any hmds bordered by a'\" turnpike road, when on such road for the sole i)urpose of K^inj; from one part of the lands to another part, provided they do not pro- slei^li liells on tlie harness, Tlie next provision thai is made is Ihjit re- hitin^ to double tracks in snow roat ojjcn. These roadmasters may ajfply the statute labor of the muni- cipality towards keepinj? these roads. If a township council does not keep the roads open for travellinj^, then the county council may do so and may charj^e the rate for so doinj? upon the township. Any person refusin;^ to do this work, who is liable to perform statute labor, may be fined not more than ^20 or less than 11 ; and, in default, to im[)risoninent for a tenn not exceedinjx twenty-one days. The same penalties are imposed on persons driving in the wrong track refusing to turn out. The next provision for winter time is snow fenc«*s. When fences are found to cause drifts so as to obstruct travel, they may be ordered to b(? removed and tin? new fences pnt up instead; if the recpiisition of the council is not complied with, then tlie council itself may r<'move the old fence and recover the costs and charges from tht; owner or occupier of the land by action in any Division Court in the locality; the amount of the judgment will be placed upon the next collector's roll as taxes against tlie lands, if not sooner paid. After the 15th of Novem- ber in each year all municipal councils have power to enter on the lands of any corporation or person whom- soever, for the purpose of erecting and maintaining snow fences, subject to the payment of such damages, if any, S!..iH'li ■Slift'.v romls. Mil iw ft?iic»\-. .! ; '\ lit, if 364 Traction ftiginea. R. S. C. o. 93. R'ujhts of Persona [PAIIT I R. S. O. c. 195. as may be actually suffered; in ease of dispute the amount of payment is settled by arbitration. The use of traction engines on highways is allowed, under proper restrictions. No bridge constructed by any company incorporated under the authorit}' of the Parliament of Giinada, and not a railway company, can be opened for public use without notice. The notice of the intention to open the bridge must be given to the railway committee; the railw.ay committee must, therefore, give notice of the time when the bridge will be ready for inspection; after inspection and satisfactory report the bridge may be opened. All accidents must be reported by the company. Municipal councils are given special powers, as above stated,* over the bridges within their respective limits. The duty of maintenance is cast upon these councils, and, in that respect, bridges are like highways. On biidgea over thirty feet in length notices may be posted forbidding driving faster than a walk. Damages to the notice and disobedience to the injunc- tion contained in it are punishable by fine, recover- able like other penalties. • See p. 281, ante. Ferries have been mentioned ante, pages 144,. 161, 283. Statutes Relating to Matters Discussed in Above Section. t ■ i ■ Paoe. 316. 818.. 321.. 321.. 321.. Public Morals. Ontario Liquor License Act— R. S. 0. c. 194; 1888 c. 30; 1889 c. 41 ^ 1890 c. 56 ; 1891 c. 46 ; 1892 c. 51 ; 1893 c. 40 ; 1894 c. 13. Sale of Liquor near Public Works — R. S. O. c. 36. Spirituous Liquors in Prisons— R. S. O. c. 243. Canada Temperance Act— R. S. C. c. 106 ; 1888 cc. 34, 35 ; 1890 c. 27 ; 1892 c. 26. Lord's Day Act-R. S. O. c. 203 ; 1896 c. 62. Minors in Billiard Rooms — R! S. O. c. 204. Use of Tobacco by Minors— 1892 c. 52. PAUT 1 te th(* lowed, orated a, and lie use )en the e ; the of the ; after nay be mpany. ers, as ipeetive I these Thways. es may k walk. injunc- recover- mges 144,, CHAP. I, § 2] Relative (Public). 335 32.J 32G-' Public Health. Paoe. a21. .Public Health Act— R. 8. O. c. 205 ; 1889 c. 42; 1890 c. 61 ; 1891 c. 49 ; 1893 c. 44 ; 1894 c. 53 ; 1895 c. 49. I Canada General Inspection Act— R. S. C. c. 99 ; 1887 c. 36 ; 1889 c. 16 ; 1891 c. 48 ; 1892 c. 23 ; 1893 c. 3.5 ; 1894 c. 3G ; 1895 o. 24. Oleo Subatitutes for Butter— R. S. C. c. 100. Gas Inspection— P.. S. C. c. 101 ; 1890 c. 2.5. Petroleum Inspection— R. S. C. c. 102, 1891 c. 49 ; 1893 c. 36; 1894 c. 40. , Canned Goods— R. S. C. o. 105 ; 1887 c. 38. I Adulteration— R. S. C. c. 107 ; 1896, c. 12. Cheese and Butter— R. S. O. c. 207 ; 1888 cc. 24, 32. Creameries— 1888 c. 31 (Ont.) Milk— 1888c. 32; 1892 c. 53; 1893 c. 48; 1894 c. 54; 1895cc. 41, 51 ; Dom. Act 1889 c. 43. Fruit— 1895 c. 48. Dairy Products— 1893 c. 37 (Dom. Act). Protection of Property, 326. .Fire Districts- R. S. O. c. 213. Bush Fires— 1889 c. 46 ; 1890 cc. 63, 64. 327. . Protection of Sheep— R. S. O. c. 214 ; 1890 c. 62 ; 1892 c. 55 ; 1893 c. 46. 327. .Accidents by Fire— R. S. O. c. 217 (see page 232, ante.) 3-28. .Protection of Game— 1893 c. 49 ; 1894 c 57 ; 1895 c. 66 ; 1896 c. 68. 329. .Wolves— R. S. O. c. 223 ; 1892 c. 59. Miscellaneous Municipal Matters. Exemption of Firemen — R. S. O. c. 188. Public Libraries— 1895 c. 45 ; 1896 c. 57. Public Parks— R. S. O. c. 190 ; 1891 c. 44. Niagara Falls Park— 1888 c. 7 ; 1894 c. 13. Algonquin National Park— 1893 c. 8 ; 1894 c. 14 ; 1895 c. 8. Rondeau Park— 1894 c. 15. 329-^ 89 c. 41 ^ (90 c. 27; Highways and Bridges. 330. .Powers of Municipalities— 55 Vict. c. 42, sees. 524 to 5G8 (see page 284). .332. .Rules for Travelling on Highways-R. S. O. c. 195 ; 1890 c. 57 ; 1891 c.;47 ; 1894 c. 52. 332.. Exemptions from Tolls— R. S. O. c. 196. 333. .Double Tracks in Snow Roads— R. S. O. c. 167. 333. .Snow Fences- R. S. O. c. 198 ; 1890 c. 58. 834.. Traction Engines on Highways— R. S. O. c. 200. 334 .. Dominion Act respecting Bridges, R. S. C. c. 93. :fil n ,; s •|:* I;: 330 Ri(jlifs of Persons [I'AIIT I '■\ : CHAPTEli I. SECTION 3. RELATIVE IIIGIITB OF PEUSONB (PRIVATE). I sife; PkUKONS auk NaTUHAI, OU AllTIFICIAI,. Natubai. Pkhsonh. 1. Master iiiui Servant. 2. HuKband niiil Wifo. 3. Piirciit and Child. 4. Guardian and Ward. 1. Mastkh ani> Skiivant. 1. Heveral Borts of servants. Menial Bcrvants. Period of hiring. C'ouditions of service. Apprentices. \Vlio may apprentice. Labonrors. Huporior servants. 2. How master and servants are affected by relation- ship. 3. Strant^ers — how affected by contract of hirin{». Power of master to pro- tect. Right of master to re- tain services. Liability of master for servant's acts or nej{- lifjence. 4. Settlomentof disputes be- tween masters and ser- vants. 5. Mechanics' liens. G. Protection of employees in course of their employ- ment. 2. HUSB.iND AND WiFE. 1. How marriages may be contracted. Marriage a civil con- tract. Parties must bo o- S',"'"«l to contract. 2. Able ) Disabilities — 1. Can- onical. 2. Munici- pal. Such are 1. Prior marriage. 2. Want of age. 3. Want of parents' or guardians' consent. 4. Want of reason. 5. Parties must marry by form of law. 2. How marriages may bo dissolved. Either by death or di- vorce. Divorce may be Total — a vinculo tnatri- tnonii. Partial — a mensd et thoro. Legal consequences of dissolution. 3. Liability of husband for wife, May not give evidence for or against one another. Order for protection of earnings of married women, 3. Parent and Child. Children are legitimate and illegitimate. As to legitimate children. 1. Legal duties of parents. Maintenance. Protection. Education. CHAP. I, § 3] Relative (Private). 337 2, Power of parcntH. As to illc^itiinnto cliildron. Children bom during wedlock may bo illo- Kitimato wlien. Duty of parontH. Ui^htH and incapacities. OlTAUniAN AND WaKI). Kindu of ({iiardianH. I lly nature. I'or nurture. 1 n HocaijH " by the common law." liy Htatuto or testament- ary. iifantH. At what period of &ne. I'rivilu){e8 and diRabilities. ITavinjf thuH ronnnon<<'(l on the ri^htH and duties of iKTHoiiH, as Klandinj? in tlH^ public rolationH of nia^is- tratos and people, tlic method I luiv(? marlied out now leads me to consider tlieir ri^lits and duties in private economical relations. The three great relations in private life are: 1. itdationH That of master and servant ; which is founded in con- liL-.'"^* " venience, whereby a man is directed to <:all in the assist- ance of others where his own skill and labour will not be sufficient to answer the cares incumbent upon him. 2. That of husband and wife; which is founded in nature, but modified by civil society; th<» one directing man to continue and multiply his species, the other jM'escribing the manner in which that natural impulse must be confined and regulated. 3. That of parent and child, which is consequential to that of marriage, being its principal end and design ; and it is by virtue of this relation that infants are protected, maintained and educated. But, since the parents on whom this care is primarily incumbent may be snatched away by death before they have completed their duty, the law has, therefore, pro- vided a fourth relation, that of guardian and ward, which is a kind of artificial parentage, in order to supply the deficiency, whenever it happens, of the natural. Of all these relations in their order. Master and servant. In discussing the relation of master and servant, I shall, first, consider the several sorts of servants, and how this relation is created and destroyed; secondly, the effect of this relation with regard to the parties K.B.— 22 388 UUjhls of PeraoriH [I'AUT I (ieneral KtTvant. thcnisolvos; thirdly, Its effect with regard to other per- BoriH. I HhiiU then Htate, fourthly, the provlnloiiH made by law for promotiuj; Hettlemeut of dlHputcH between employerH and enjployed; and next, fifth, whow how the wapjes of workmen are Heeured by Kiving them a lieu on the subject of their labour; and lastly, and sixthly, state how the law endeavours to protect employees in the course of their employment. I. As to the several sorts of persons: I have formerly observed that pure and proper slavery does not, nay, cannot subsist in Ontario; such, I mean, whereby an absolute and unlimited power is given to the master over the life and fortune of the slave. And, indeed, it is repugnant to reason and the principles of natural law that such a state should subsist anywhere. 1. The first sort of servants, therefore, acknow- ledged by the laws of Ontario are menial servants; so called from being intra moenia or domestics. This term applies not only to menial servants, commonly known as such, but also to persons employed for him in a person's domestic establishment, or in his bu8in^ss, e.g., tutors, governesses or clerks. The contract between them and their masters arises upon the hiring, and may be pre- sumed from the fact of service. If the hiring be general, without any particular time limited, the law (if there be no custom to the contrary) construes it to be a hiring for a year, upon a principle of natural equity that the servant shall serve and the master maintain him through- out all the revolutions of the respective seasons — as well when there is work to be done as when there is not; but the contract may be made for any longer or shorter tenn; though no voluntary contract of service is binding for longer than nine years. Verbal as well as written agreements are binding between master and servant; but a verbal agreement is not permitted to exceed the term of one year. A quarter's notice expir- ing at the end of some year of the service is sufficient to determine in all cases; but a general hiring at weekly wages is a weekly hiring, an'' only requires a week's notice to determine it. A domestic servant is only usually entitled to a month's warning, or a month's so CHAP. I, § 3] Belative (PrirnU). 339 wnges, and if a servant positively ivfnsea to oboy his niHstor's orders, lie will be warranted in turning; him away. Gross moral misconduc^t, whether pecuniary or otlu^rwlse, and habitual nej^lipencc in business, or con- duet calculated seriously to injure his masti^r's business, will also justify the diseharj^e of a servant. An artisan who has been enpaj^ed for a term of work in the art ho l>raotices upon his representing himself to possess the requisite skill may, on his ]U'(»vinj; to be ineouqx'tent, be discharged by his employer before tin* end of tlie term for which he was engaged. Persons leaving the employ of their master, or refusing to work after enti'ring into an engagement, and contrary thereto, are liable to punishment. 2. Another species of servants are called apprentices Appren- (from apprendre, to learn), and are usually bound for "^"*' a term of years, by deed indented or indentures to serve their masters, and be maintained and instructed by them. This is usually done to persons of trade, in order to learn their art and mystery; and sometimes very large sums are given with them, as a premium for sucli their in- struction; but it may be done to husbandmen, nay, to gentlemen and others. Minors may bind themselves to perform any service Minora. or work when they are over sixteen years of age, ami j> ^ q have no parent or legal guardian. Parents, guardiansi, ^- ■'-• or otlier jiersons having tlie care or charge of a minor; or anv charitsible societv authorized bv tlie Lieutennnt- Governor in council so to do, and having charge of a minor, may, if tlie minor be a male and over fourteen years, bind him, with his consent, apprentice by inden- ture to any respectable and trustworthy raaster- mcchnnic, farmer, or otlier person carrying on a trsule, lor a term not to exceed tlie minority of the ajipreiitiie; [or. if a female, not under twelve, may, witli her consenv, t>'id her to a trade, or to domestic service, for any term not to extend beyond the age of eighteen years. The same power is given to a mother when the father aban- dons his children, and to the mayor of a city or Judge of a Count^> Court, or police magistrate in the case of I 840 Rights of Persons [part I ilil orphans or deserted children. The duties of masters to their apprentices are to provide them during the term of apprenticeship suitable board, lodging and clothing, or such equivalent therefor as is mentioned in the in- denture, and also properly teach and insti'uct them, or cause them to be taught and instructed in their trade or calling. Apprentices must obey their masters' law- ful commands, and must not absent themselves from his service day or night without his consent. Com- plaints by or against apprentices are cognizab'e by a Judge of a County Court, a police magistrate*, or the Court of General Sessions. Lalwurers. 3. A third species of servants are labourers, who are only hired by the day or the week, and do not live intra moenia as part of the family, concerning whom statutes in England have made many very good regulations :* 1. Directing that all persons who have no visible effects may be compelled to work. 2. Defining how long they must continue at work in sum- mer and in winter. 3. Punishing such as leave or desert their work. 4. Inflicting penalties on such as either give or exact more wages than are so settled: and, formerly, the justices of the peace at session, or the sheriff, we.'-e empowered to settle their wages; but this power is taken away by the 53 Geo. III. c. 40. 4. There is yet a fourth species of servants, if they may be so called, being rather in a superior or minis- terial capacity; such as stewards, factors and bailiffs, whom, however, the law considers as servants pro tem- pore with regard to such of their acts ;\ ^ affect their masters' or employers' property. Which leads me to consider : II. The manner in which this relation of service affects either the master or servant. • It is a pity that some of tins lej^islation lias not been revived in Ontario. It would probably do more to abate the "tramp" nuisance than the present system of gravely convictinj» vagabonds as criminals and sending them to be idle in gaol at public expense, and then to turn them loose to recommenco their wandering life reinvigoratod by their enforced rest. Superior servants. CHAP. I, § 3] Relative (Private). 341 they linis- liliffs, tem- tlieir tne to brvice jived in luisance kminaU Tto turn ly their A master may by law correct his apprentice for Powers of negligence or other misbehaviour, so it be done with moderation; though, if the master or master's wife beats any other servant of full age, it is good cause of de- parture. But, if any servant, workman, or labourer as- saults his master or dame, he shall suffer one year's im- prisonment, and other open corporal punishment, not extending to life or limb. By service all servants and labourers, except ap- Rigiita of prentices, become entitled to wages according to their wages, agreement, if menial servants; but if there has been no beneficial service owing to the gross fault of the person employed, he is entitled to no pay; and, if his work has been productive of injury rather than benefit, he is liable to an action. If a servant quits his master without cause, he also forfeits his right to wages. Complaints of servants for non-pajment of wages are settled before justices of the peace with an appeal to the Judge of the , Division Court. In cities the police magistrate tries ^^^"^*' such cases. If a set-off is claimed by a master it must be disposed of by the magistrate. The jurisdiction of the magistrate extends to wages for thirty days, thoui^h the balance exceeds |40. In other cases the limit is $ tO. III. Let us, lastly, see how strangers may be affect- Strangers ed by this relation of master and servant, or how a master and master may behave towards others on behalf of his ser- ''^'^*"*' vant; and what a servant may do on behalf of his master. And, first, the master may maintain, that is, abet ^and assist his servant in any action at law against a stranger: whereas, in general, it is an offence against public justice to encourage suits and animosities by helping to bear the expense of them, and is called in law maintenance. A master may also bring an action against any man fo? beating or maiming his servant : but in such case he must assign, as a special reason for so doing, his own damage by the loss of his service; and this loss must be proved upon the trial. A master like- wise may justify an assault in defence of his servant, 342 Rights of Persons [PAUT I 111 ' ii and a servant in defence of his master: the master be- cause he has an interest in his servant, not to be de- prived of his service; the servant, because it is part of his duty, for which he receives his wages, to stand by and defend his master. Also if any person hires and retains my servant, being in my service, for which the servant departs from me and goes to serve the other, I may have an action for damages against both the new master and the servant, or either of them: but if the new master did not know that he is my servant, no ac- tion lies, unless he afterwards refuse to restore him upon information and demand. The reason and foundation upon which all this doctrine is built seem to be the pro- perty that every man has in the service of his domestics ; acquired by the contract of hiring, and purchased by giving them wages. How far a As for those things which a servant may do on be- may bind half of his master, they seem all to proceed upon the his master, principle that the master is answerable for the act of i his servant, if done by his command, either expressly given or implied : " nam qui facit per alium, f acit per se," unless such act be " malum in se," or one that the servant knows to be unlawful. Therefore, if the servant commit a trespass by the command or encouragement of his master, the master shall be guilty of it, thougli the servant is not thereby excused, for he is only to obey his master in matters that are honest and lawful. If an innkeeper's servant rob his guests, the master is bound to make restitution: for as there is a confidence reposed in him, that he will take care to provide honest servants, his negligence is a kind of implied consent to the rob- bery; "nam, qui non prohibet, cum prohibere possit, jubet." So likewise if the drawer at a tavern sells a man bad wine, whereby his health is injured, he may bring an action against the master: for although the master did not expressly order the servant to sell it to that person in particular, yet his permitting him to draw and sell it at all is impliedly a general command. In the same manner, whatever a servant is per- mitted to do in the usual course of his business, is CHAP. I, § 3] Relative (Private). 348 per- ns, is equivalent to a general command. If I pay money to a banker's servant the banker is answerable for it : if I pay it to a clergyman's or a physician's servant, whose usual business is not to receive money for his master, and he embezzles it, I must pay it over again. A wife, a friend, a relation, that used to contr? ct business for a man, are quoad hoc his servants; and the principal must answer for their conduct: for the law implies that they act under general command; and without such a doctrine as this no mutual intercourse between man and man could subsist with any tolerable convenience. If I usu- ally deal with a tra ?hen he entered the service. Agreements may be entered into between workmen Agree- and employers by which a defined share in the annual share /.ro- or other net profits of the business may be allotted to the **"• workman in lieu of, or in addition to, wages; this agree- ^f^- o. ment does not create any relation in the nature of part- nership, or any rights or liabilities of co-partners; the workman has no right to examine into the accounts or interfere in any way in the management or concerns of the business. Any periodical statement by the employer of the net profits of the business is final and conclusive, and cannot be impeached upon any ground whatever. Every agreement of the kind just described is deemed to be liable to the same rules; if it is intended that the agreement shall not be liable to these rules, that inten- tion must be expressly stated. All agreements between masters andi labourers orAgree- servants are binding on both parties, whether the per- service ^ formauce has been entered into or not. If, after the"j''J|^'j'|^^"*^ termination of an engagement, any dispute arises be- tween the master and servant, a justice of the peace can decide the matter, but proceedings must be taken within one month after the engagement has ceased. Agreements made out of Canada for ser- vice in Ontario are void. Persons may, however, engage skilled workmen not resident in Canada to perform labour in Ontario upon any new industry if skilled labour for the purpose of tliat industry cannot be otherwise obtained. Teachers, professional actors, artists, labourers or servants are liable on contracts for service made out of Ontario and can maintain them. j IV. Provisions for facilitating the adjustment of disputes between masters and workmen. 346 Rights of Persons [PAUT I Adjust- ment of disputes. R. S. O. ■o. 140, Trade Unions. R. S. C. «. 131. For this purpose a board of arbitration may be formed. Any number of masters and worljmen in any particular locality may agree in writing to form this board. The memorandum of agreement must be filed in the registry oflBce of the proper registry divi- sion; the board must consist of not less than two mas- ters and two workmen, and of not more than ten masters and ten workmen and a chairman. The board appoints its own chairman and also two clerks, one for the mas- ters and the other for the workmen ; it has power to hear and determine all questions of disputes and differences between the masters and workmen, signing the memo randum or becoming party to it. The award made by the board is final and conclusive, and is not subject to review or challenge by any Court whatever. A com- mittee of the board is called the committee of reconcilia- tion; it consists of one master and one workman, and all questions which are submitted to the board must, in the first instance, be referred to this committee, who en- deavour to reconcile the parties in difference; if they cannot effect a reconciliation, the matter in dispute must be referred to the board, to be disposed of as a contested matter. No counsel or solicitor is allowed to attend be- fore the board or the committee of reconciliation unless both parties agree. Annual elections are held for the purpose of appointing the members who constitute the board. Masters and workmen are only entitled to vote. Domestic servants and servants in husbandry are not under the control of this board. A trade union has been defined to be such combina- tion, whether temporary or permanent, for regulating the relations between workman and master, or for imposing restrictive conditions on the conduct of any trade or business as would but for what is thus allowed by law have been deemed to be an unlawful combina- tion by reason of one or more of its purposes being in restraint of trade. Trade unions are formed as follows : Any seven or more members of a union may, by sub- scribing their names to the rules of the union, register it; if any one of the purposes of the union is unlawful. CHAP. I, § 3] Relative (Private). 347 )ina- iting for any lowed Ibina- ig in lows : sub- fister Iwful, the registration is void. The Registrar-General of Can- ada is the registrar with whom the union is registered. A registered trade union is managed by trustees, who take in their own names lands for its purposes not ex- ceeding one acre; they hold all real and personal prop- erty belonging to the union, and bring or defend actions or suits brought against it. The rules of the union registered must provide for a name and place of meet- ing. They must define the object of the union and make provisions for the general management of its affairs ; such as the manner of making and altering rules; ap- pointment of committee of management; investment of funds and audit of accounts. An annual statement of affairs must be sent to the registrar in each year. The purposes of a trade union, by reason merely that they are in restraint of trade, are not to be deemed unlawful, so as to render any member of a union liable to criminal prosecution for conspiracy or otherwise, or so as to render void or voidable any agreement or trust. Certain particular offences are strictly forbidden : combinations for the purpose of unlawfully limiting facilities for transportation, restraining commerce, limiting pro- duction or hindering competition; an offender in these directions is liable to a penalty not exceeding $4,000 or not less than $2,000, and to imprisonment for a term not less than two years. Certain agreements are men- tioned as not being capable of legal enforcement: 1. Any agreement between members of a trade union, as such, concerning the conditions on which its members may sell goods, transact business, employ or be employed. 2. Any agreement for the payment of any subscription or penalt.y to a union. 3. Any agreement for the application of the funds of the union : (a) To pro- vide benefits to members; (b) To furnish contributions to any employer or workman not a member of the union, in consideration of the employer or workman acting in conformity with the rules and regulations of the union; or (c) To discharge any fine imposed upon any per son. 4. Any agreement between one trade union and another. 5. Any bond to secure the performance of any of these agreements. No person who is a master, or n 848 Ritjhts of Persons [part I the father, son or brother of a master in the particular trade or business in connection with which any offence isj under the Act, charged to have been committed, can Act as magistrate or justice of the peace. Mechaniofc' y. For the benefit of mechanics who are employed Lienn, -^ *' 1890, c. 35. upon buildings or furnish machinery, certain provisions have been made to secure on the property itself the wages or value. These provisions run as follows: Every person doing work upon, or furnishing materials to be used in the construction, alteration or repair of any building or erection, or erecting, fur- nishing or placing machinery of any kind in, upon, or in connection with any building, erection or mine, by virtue of being so employed, or furnishing, has a lien for the price of the work, machinery or materials upon the building, erection or mine, and the lands occupied there- by, or enjoyed therewith.* The lien attaches upon the estate and interest of the owner in the building, erec- tion or mine upon or in respect of which the work is done, or the materials or machinery placed or furnished. An owner is a person who has any estate or interest in the lands upon or in respect of which the work is done, or materials or machinery placed or furnished, at whose request, and upon whose credit, or on whose behalf, or with whose privity or consent, or for whose direct benefit the work is done, or materials or machinery placed or furnished. All persons claiming under the owner, whose rights are acquired after the work is commenced, or the materials or machinery have been commenced to be furnished, are in the same position as the original owner. If the estate or interest charged by the lien is leasehold, the fee simple may also be subject to the charge if the consent is testified by the signature of the owner upon Position of the claim of lien when registered. If the land is en- inortKagee g^jj^jj^pg^ jjy ^ pnor mortgage or other charge, and the selling value of the land is increased by the construction or repairs of the building, or by the erection or placing of the materials or machinery, the lien is entitled to rank upon the increased value in priority to the mortgage or • No man can, by agreement, contract himself out of the Act. CHAP. I, § 3] Relative (Private), 849 other charge. Everj' mechanic or labourer whose lien is for wages has to the extent of the interest of the owner, besides any other lien he may have, a lien for his wages not exceeding thirty days, or a balance eqiml to his wages for thirty days. When the labour is in respect of property belonging to the wife of the person at whose expense the work was done it attaches to that property as if she had ordered it, unless there was actual notice to the contrary. The owner is entitled to retain for a Resery*- 1.> period of thirty days after the completion' of the con- (or liens. tract twenty per cent, of the price which was to be paid to the contractor, unless the contract is over ^15,000 when the amount to be retained is fifteen per cent., and these reserves are subject to the lienholders' claims. If the lien is claimed by any other person than the con- tractor, the amount which may be claimed by him is limited to the amount payable to the contractor or sub- contractor, as the case may be, for whom the work was done, or materials or machinery furnished or placed. All payments up to eighty per cent, of the price to be paid for work, machinery or materials, or eighty-five per cent, where the contract price exceeds $15,000, made in good faith by the owner to a contractor, or by one sub- contractor to another subcontractor, before notice in writing has been given by the person claiming a lien to an owner, contractor or sub-contractor, is a good pay- ment and discharges pro tanto the lien. A lien foi* ■wages for thirty days, or for a balance equal to wages for thirty days, has, to the extent of twenty, or fifteen per cent, of the contract price, priority over all other liens, and over any claim by the owner against the con- tractor on account of failure of tlie latter to complete his contract. A lien cannot attach so as to make the ow ner liable for a greater sum than the sura paid by him to the contractor, unless he disregards the provisions of the Act and does not hold the twenty or fifteen per cent. Payment made after an award, or without an rayments award, of a just debt of a contractor operates as a dis- tor's cndi charge pro tanto of the money due to the person pri- *""• marily liable, if notice of ^he payment is given within three days. During the continuance of the lien no por- 850 Rights of Pcrmns [PAIIT I Rfffiiitm- tioii. Proceed- ing on lien. Discharge. Lien on chattels. lion of tlie property or raachiiw»ry jifft'cttMl by it can bf» rcniovcd; any payinent may bo rcHtraincd by injiiiKition. A claim of lien may be r(?^iHt(M\'s to exist after the expiration of ninety days afti>r tlu'l work has been completed, nnh'ss in the meantime j)roceedin{j:s are institnted to realize the claim, and a cei'titicate of those proceedings rej^istered in the rej^istry office. In all cases the lien may be realiztnl in the IIif?h Tourt, bnt exi)ense is rednced to a nominal sum and the ]>ro('<'dnre is made as siin])le ns possible. Any number of lienholders may join in one action, and any action broujijht by one lieuholder shall be taken to be brouh he is entitled reniaiuH unpaid for three montliH aft(!r it ouffht to have been paid, ho will have tlu? rijjjht to wdl tlu* chattel or tiling on Kivinj.; one week'H noHee by advertiseinent in a newKpa[ter pub- liHhcd in the iiiunicipiiiity in whieh tiici woi'k is diuu! ; if there is no newspaper publisiied in tiie municipality, then in tlie newspii|M'r jniblished n<'arest to it, and also leave notice in writinj^ at tlu^ owner's residence*. The proceeds of sale must be applied in payment of the jimount due, and costs. The Buri)ius is paiM in I'l-otcction the course of their emi)loyinent is otir next subject f<'i' ,'„oa.' "^ consideralion. We have already* seen that in mines s[»ecial care must be taken in their construction and workinji', so as to secure as much safety as possible. In factories it is not lawful to eniT)Iov anv child, K.H. O. young jjirl or woman so tliat the healtli of the child, young girl or woman is likely to b(? permanently injured. To secure this object the following provisions are laid down : No boy under twelve years of age, and no girl under fourteen years of age, can be employed in any factory. No child between the ages of twelve and fourteen can be employed in any factory unless the employer of the child has in his possession and produces eith(!r a certificate signed by the })ar(>nt of the child as to the age of the child, or the written opinion of a n gistercd physician that the child is not less than twelve voars of age. It is not lawful for a child, young girl or wo'.nan to be employed for more than ten hours in a day, nor •The Dominion Parliament has passed an 'Act (59 Vict. c. 5) for securmg to workmen on Dominion public works a preference for their wages. See Provincial legislation on same subject mentioned page 158 ante. Page 165 ante. 108, 652 Rights of Persons- [PAUT 1 'i R. S. O. c. 211. Compensa- tion for Injuries to Workmen. more than sixty liours in a weelc, unless a different apportionment of the hours of labour per day has been made for the sole purpose of giving a shorter day's work on Saturday. In every factory the employer must allow every child, young girl or woman employed not less than one hour at noon of each day for meals ; this hour is not counted as part of the time limited as respects the employment of children, young girls and women. If the factories inspector ap- pointed by the Lieutenant-Governor so directs the em- ployer must allow employees' meals to be eaten in a room appointed for this purpose in the factory. Boys under twelve and girls under fourteen, during the months of July, August and September, may be employed in pre- paring fruits and vegetables for canning purposes; the child is not allowed to clean any part of the machinery in a factory while it is in motion by the aid of any mechanical power. A young girl or woman cannot be allowed to clean any part of the machinery In a factory, such as mill gearing, while it is in motion for the pur- pose of propelling any part of the machinery. A child or young girl is not allowed to work between the fixed and traversing part of any self-acting machines while in motion. Regulations may be made hy Government to prevent the occurrence of any accident from any machinery, or bad sanitary condition of manufacturing premises. In every factory all machinery must be pro- tected, and there must be ample means for the preven- tion of fire. Notice must be given of any accident in a factory within six days after the occurrence of the acci- dent. Very large powers are given to the inspector of factories as to inspection and investigation, and persons interfering with him in the course of his duties are pun- ishable by fine and imprisonment. Accidents from threshing machines are also gu.arded against as far as possible. Compensation maj^ be awarded for injuries sus- tained in the following manner: (1) By reason of defect in machinery; (2) negligence of any person in the em- ployer's service; (3) negligence of any person in the em- ployer's service under whose order the workman was at CHAP. I, § 3] liehitive (Private). 368 also sua- lefect ^e em- ^e em- ms at 11u» tiino of tho injury; or (4) when the injury was ransod through obedience to tlie rules or by-laws of the eni- I»loyer, or to i)articular instructions jjiven by any ]ierson delegated by tlie employer; or (5) in the ciise of niilwny, trannvny or street railway conipanies, by reason of the nejjlif^ence of jiny person in the servic(> of the employer who has the charjjje or control of any si};nal points, loco- motive en}»ine or train. Special provisions are made fui-ther with rejjard to railways, re^ulatin;; the luiirht of overhead bridj^es: (1) These bridf^es must be at least seven feet above the top of the highest freijfht car. (2) The si)ace between the rails in any railway froj; extend- ing from the point of the ivog backward to the point where the heads of the rails are not less than five in«'hes apart must be filled in with pacUinp. (li) The sjjace between any winf? rail and any railway frop, and be tween any j?uard rail and any other rail alongside, ex- cept during the months between October and April, must be filled in with packing. If, in these three cases, any injury is caused by reason of non-compliance with these rules, this injury is deemed to be an injury caused by defect in machinery. The amount of compen- sation recoverable cannot exceed a sum equivalent to the estimated earnings during three years preceding the in- jury of a person in the same employment in the same grade during those years in a like employment within Ontario, or fifteen hundred dollars, whichever is larger. An action for recovery of compensation for the above causes is not maintainable without notice of injury having been given within twelve weeks. The action must be commenced within six months after the date of the accident; or, in case of death, within twelve months from the time of death. In the case of death, if the Judge iw of opinion that there was reasonable excuse for want of notice, then the want of the notice is no bar to the action. Workmen cannot contract them- selves out of the operation of the Act unless under the following circumstances: (1) If there was any other ^on- J.'^^^j, '^^.^ sideration than that of the workman's being taken or fl'w« not continued in the master's employ; and (2) unless this '''''''^' other consideration is in the opinion of a Court or Judge K.B.— 23 U5i sr, r ' II UujhlK of l'<'i'sn)is fl'/VHT I iMiipIc niul )Ml: mill (.'{) iinlcKH in (ii(> opinion of llio ('(Hill or ji .Iii(l>i<' IIm' ronlnicl in viow of (lie oilier con- KHJiTiHion WMH noj on Hio piirl of Ilit> worlunjin ini providrni, lull wjih jnsi iiiid rriiwoniihlc. In cjiko n coin- pcusnlion is nwiinltMl Ion worlvinnn for injury, jim mIh»vo oxplnincd. any priuilly or djinuipfcH cxncltMl li.v (In? lit'Ki»^li»(l for llio inirpoMc of nHccrlniniii;^ t!u> nnionni of roinponHiilion. |{iiihvnv ('oinp]ini<>H vvliicli liMvo rsliiMisht'd n boiu'lll Hocioly foi* (lie ImmioIK, <>f llicir nol snhjcci lo I lie fnrllior li.ibilily of h,- infr fi\UH\ for coinpcnsiilion in il»o nunnu'r nl»ov<' vx- pli'.iin'fl, so fnr ns rolnlcs lo woi-knion who join llu'roin- piinv's hcnollt Nocicly. Any oilier workninn who is not :i nn'tnher of I he Itciu'lil society niny claim conipensa- lion in llu' nuinncr ahove <'xpIaiTi(Ml. IK ' I I.')! J i '<1K. 337. .M.S7. ;«n., •Mi. 348. 3.')!., 3.-) I., 3:)1. 3r.i.. 352.. 3r)'J.. Tlif folloirin;! }>tljustm<'nt of Hisputos — U. K. (). o. 140; 18i)0 c. 40. TrmUfi Uni>Mi8 - H. S. C. c. 131. MiH'Imiiics' Lioni5 — 18!)(> c. 85. Woodmen's Lieu for WftRes— 1891 c. '.)2 ; 1«<»4 o. 38 ; laiMi c. :m. Wni-oa for Labor on Public Works -ISKiJ c. 37 (Out.), (piijjo 158 ante) ; 189(; 0. 5 (Doni). rrotoction of Persons e'Viployoil in riiotorics— 11. S. 0. c. L'08 ; 188',) o. 43 J 181)2 c. 54 ; 18'.).') o. 50. Protei lion of .Vccidonts frouj 7'hrcabinj; Mnohines— 11. H. O. c. 211. Steam Tbroehers— 188!) c. 45. Compensation for Injuries— 1892 c. 30 ; 1893 c. 2t(. CMAI'. I, § ',\\ Rddlirc (I'lihlir). {55. • JU 18<)(V c. 43 ; II «:ivil cou- tmct. The Hccoiul nrivjilc n-hiCiou <»l' imthoiih \h IIihI of H.ml.im.l • . mill wife, iiinrrijil^M', wliirli jimIimIcm I Ik- niil liio niiinncr in wliicii IIk'.v iiiji.v Ik- M jil Ihc linir of iiuikiiiK il were, in llio lli'Hi pliMo, willinjij lo ••((iilrjK'l ; ho(<»ihII,v, Jihio fo <;on- tnul ; iiihI, IjihII.v, ncliDill.y did «-onlrji(l in the [nopei- forniH jiiid HoleiiinilieH retiiiired b.y tin' law, Firnl, llie.v iimihI he willing; lo <'(»nlriiel. ''(loiiHen- KiiH noil conciihihiH, fjicil nii|tlijiH,'' Ih Ihe nuixini of Iht* civil hiw in thin <-jih(>; jiimI il in jidopled h.y Ihe coininon linv.yei'H, who, in^7 <1'^' farthest of which is that between uncle and niece. 2. Civil. Prior marriage. Want of age. The other sort of disabilities are IliDse which are created, or at least enforced, by the civic laws. And, thouiih some of them may be j>!"ounded on natural law, • ( f'.(>y ju'c rcjifarded by the laws of the land, not so much in the lifjht of any moral oiTence, as on account of tiie civil inconveniences they draw after them. Civil disabilities make the contract void ab initio, ami not merely voidable; not th.at Ihey dissolve a contract already formed, but they render the parties inca])able of forminji: any contract at all: they do not put asunder those who are joined tojjetlu'r, but they previously hin- der the junction. And, if any persons under these Ie}j;al incai)acities conu^ tojjether, it is a meretricious, and not a matrimonial, union. 1. The first of the.se le<;al disabilities is a prior niiir- riafje, or havinjj; another husband or wife livin;jf; in which case, besides the penalties consecpient u[)on it as an indictable otlence, the second marriajje is to all in- tents and i)urpose8 void; polyjjamy b<^ins condemned both by the law of the New Testament and the jtolicy of all prudent states, especially in these northern climates. L. The next legal disability is want of age. This is suflicient to avoid all other ccmtracts, on account of the imbecility of judgment in the parties contracting; a fortiori, therefore, it ouglit to avoid tlais. the most important contract of any. Therefore, if a boy under CHAP. I, § 3] Relative (Private). 357 ill in as in- lu'd icy Til Miis of Hc;; di'v fonrtcon, or n girl nndoi" twclvo years of .'if^'c. inni'rios, tliiH m.'irriafjc is only inclioatc iiiul iinpcrfoot; and, when oithcr of tlieni conies to llie .i^^e of consent aforesaid, tliey may disagree and declare? tlu? marriaj^e void, with- out any divorce or sent<'nce in the si>irltual court. This is founded on the civil law. 15ut the coniniou law pays a fjreater rej^ard to Ihe conslitution than the aj^e of the parties; for if (liey are " habiles fid malrinionium " it is a {jfood marriajife, what« ver Iheir a^e may be; and in our law it is so far a nuirriaKe, that, if at tlie age of con- sent Ihey agree to contiinn? together, they need not l»< marritd again. If tlu; husband be of years of dis- cretion, and the wife under twelve, when slu? com(!S to years of discretion, he may disagree as well as she may : for in contracts the obligation must li • I. iitual; both must be bound, or neither;* and so it is, vice versa, when the wife is of years of dis- cretion, and the husband under. '4. vnother iiicapacit\ arises from want of consent ^^•'^"t "f ' • coiisont. of puji ats or guardians. liy Ihe common law, if the par- ties themselves were of the age of consent there wanted no other concurrence to make the marriage valid; and this was agreeable to the canon law. But, by several statutes, penalties of £100 were laid on every clergyman ' who married a couple either wit'iout publication of banns (which might give notice t( parents or guard- ians) or without a license, to obtain Avliich the consent of parents or guardians must be sworn to. 1\\ statute 20 (Jeo. II. c. 33, it v'as enacted SdO.o. I that all marriages celebrated by license (fo.* banns sup- " pose notice), where either of the parties was under twenty-one (not being a widow or widower, who are * Tlieac are Blackstone's wni-fls and I Imvo not altered tlicni. Tliey are not (iiiito exacc. A person under twenty-one yeiirH of n^o may main- tain an action for breacli of contract to nuirry aj^ainst a person over twenty-one years of aije while the latter cannot nniintain that action ajiainst tlio former. If the minor plaintiff were under twelve years of aj^c the defence would be {,'ood that the niarriu^'e was a nullity. Hut if the minor plaintiff v.ere between twelve and twenty-one years of ii^o when the contract waM made there ia a case wiiere one party may l)e bound to another who ia not bound. Such a contract ib called a Unila- teral Contract. 85S Rifjlds of Persons [I'AllT I Want of reason. 15 Geo. II, c. ;j(>. Soleinniza tion of niarriag'e. supposed emancipated), without the consent of the father, or, if lie were not livinj;, of the mother or guardian, should be absolutely void.* 4. A fourth incapacity is want of reason: without a competent share of which, as no other, so neither can the matrimonial contract be valid. It was formerly adjudged that the issue of an idiot was legitimate, and consequently that his marriage was valid. A strange determination; since consent is absolutely requisite to matrimony, and neither idiots nor lunatics are capable of consenting to anything. And, therefore, the civil law adjudged much more sensibly when it made such deprivations of reason a previous impediment, though not a cause of divorce, if they happened after marriage. And modern resolutions have adhered to the reason of the civil law, by determining that the marriage of a lunatic, not being in a lucid interval, was absolutely void. But, as it luight be difficult to prove the exact state of the party's mind at the .' ctual celebration of the nuptials, upon this accoui't (concurring with some pri- vate family reasons) the statute 15 Geo. II. c. 30, has pro- vided, that the marriage of lunatics and persons under frenzies if found lunatics under a commission, or com- mitted to the care of trustees by any Act of Parliament, before they are declared of sound mind by the Lord Chancellor or the majority of such trustees, shall be totally void. 5. Lastly, the parties must not only be willing and able to contract, but actually must contract them- selves in due form of law, to make it a good civil marriage. The solemnization of marriage in the province is the twelfth subject relegated !o the exclusive authority of the province by section \)'l of the B. N. A. Act. fin Ontario the following persons may solemnize marriage between any two persons not under a legal *,Seo pa(;e Sfil, post. t The Marriage Act, ISOft. whicli is tie authoiity for the text, will not come into force until Aiijinst Ist, IH'M. Until that date reference must be n CHAP, I, § 3] Relative (Private). 35J) disqualification to contract such niaiTia{?o, but no min- ister may solemnize marriajje unless authorized so lo do under the hand and seal of the Lieutenant-dovernor. 1. The ministers and clergymen of every church or religious denomination duly ordained or appointed according to the rules of their respective denominations. 2. Any elder, evangelist or missionary of the people known as " Congregations of God," or '' of Christ," or called " Disciples of Christ," chosen for the purpose of solemnizing marriage. 3. Any duly appointed commissioner or staff officer of the Salvation Army chosen for the same purpose. The ceremony need not be in any consecrated church or chapel, or within any particular hours.* Marriages may be solemnized either after publication of banns, or after the obtaining of a license issued under the hand and seal of the Lieutenant-Governor. In case of an inter ded marriage after publication of banns only, the banns need only be published on one Sunday, either in the church where one of the parties has been in the habit of attending, or in some church with which the minister who performs the ceremony is connected, in the local municipality where one of the parties has, for fifteen days previously', had his or her usual place of abode. If both parties do not live in the same locai municipality, then a certificate must be produced that the banns were proclaimed in some other municipality where the other of the i)arties resided for fifteen days. The license or certificate is granted by issuers of marriage licenses, who are named by the Lieutenant- Governor in Council for that purpose, and who are fur- 59 Viot. c. 3'.). T'nblicd- tioii of banns. Marriage licenite. 1 not st bo made to R. 8. O. chapter 131, and amending Acts. These are T)! Vic Clip. 20, 51 Viet. cap. d, "j? Vict. cap. 40. Sections 28 and 20 of the Act of 1896 are excepted and are law now, and their effect is stated, pag'3 3G2 pott. * No marriage can bo Rolemni?:ed between ten o'clock at night and six o'clock in the morning unless the oftieiiiting person is satisfied that the proposed marriage is legu,!, and that exceptional circumstances require that the ceremony should take place. Section 22 of tin* Act lays down the rule mentioned in the t"?xt th it it is not a valid o'ojection to the legality of a marriage that it was not soleiiMiizad in a consecrated edifice, or within a)iij particular hour. 3G0 liighta of Persons [PAllT I Persons whose con- sent s )"e- qiiifd. nished with blank licenses from the office of the Provin- cial Sccretarj. Before any certificate is granted by any issuer, one of the parties is required to make oath in what county or district the marriage is to take place; next, that he or she believes there isl no affinity, con- Kanguiuity, jire-contract or other lawful cause or legal impediment to hinder the marriage, and that one of the parties has had his or her usual place of abode within the judicial district or count^^ in which the local muni- cipality where the marriage is to be solemnized lies. If either of the parties is under eighteen years (and not a widow or widower), the person must also swear that the consent of the person whose consent is required by law has been obtained. No license or certificate can be issued in the case of any person under the age of four- teen years, and no person shall knowingly solenmize the marriage of a contracting party under that age. If either part^- is under the age of eighteen years, and not a widow or widower, there must be produced to the issuer of licenses the written consent of the person whose consent is necessary to the marriage. This con- sent must be verified by affidavit. If any issuer has personal knowledge that the facts are such that the mar- riage cannot legally take place, he must not issue the license or certificate. No license or certificate can be issued between eleven o'clock at night and six o'clock in the morning, except in case of urgent necessity, of which the issuer is the sole judge. The persons whose cdiisent is retinired in the case of iHn-sons under eighteen, ;uid not a widow or widower, are the father, if alive, the mother, if the father is de-ad, and, it both imrents are dead, tlu" guardian. II' the lather or mother, though living, is not resident in the province, and is not in the province at the time of the application for the license, and the party applving is a resident and has been so for the pnceding twelvr months, tlien the Im-use may issue. If there Is no perstm to grant such consent, then, * a oath being madf to that ♦rt'ect, the issuer may grant the certificate. No minister who iHiforms any marriage ceremony afttM* banns publislitd or certificate issued, i.^ liable to an CHAP. I, § 3] Relative (Private). 301 action for damages, or otherwise, by reason of there being any U'gal impediment to the marriage, unless he knew of it at the time of tlie marriage. As there have been varying re(inirements in regard [];,'J|1,7"''*' to marriages under successive Acts, and objections in'irriagos. might be raised on account of non-compliance with these re(juirements, it has been considered necessary to pro- vide that all marriages celebrated before or after the 7th of April, 1896, between persons not under legal disquali- lication for entering into the contract of matrimony, are declared, after three years from the day of their solemnization, to be legal and binding as far as respects the civil rights in this province of the parties or their issue, and so far as respects all matters within the jurisdiction of the Ontario Legislature, notwithstanding defects in the pub- lication of banns, or in the marriage license, i)rovidcd the parties lived together after the marriage and cohab- ited as husband and wife, and that the validity of the marriage had not been questioned before the above date in any suit. The reader may ask. What is the result if persons go through the ceremony of marriage in Ontario with- out observing the requirements of the Ontario Act? The statute does not say that if these requirements are not observed the contract shall be null and void. It provides penalties for those who irregularly celebrate the marriage or who issue the licenses improperly. iJut what is the position of the parties to the contract? Are they bound or not? Section 22 by implication seems to provide that if it is no objection to a marriage that it was not solemnized in a consecrated edifice or within any particular hours, that non-compliance with the other requisites laid down by the Act would be a good objection to the marriage. But the Act nowhere- says so. Until the Legislature does so provide it would seem that the marriage would be a good marriage if the parties did not seek to take advantage of the non-com- pliance with the Act as a ground of release. If they do contest the marriage on any such ground, then tlu absence of any clause in the Act declaring for that rea- 3G2 Hifjhts of Persons [PAIIT Dis^olu- tiou of marriage Divorce a vinculo matnmcni son the invalidity of the marriage would probably defeat the attempt to dissolve the contract on that ground. The (mly causes, therefore, for which in an Ontario Court a marriage could be dissolved are those presently stated.* Non-complance with the forms of the Act, it is respectfully submitted, cannot be added as a cause of dissolution. What, then, is the object of the statute? Can it be evaded by sutTering the penalties or I)a3'ing the fines it exacts? What is the object of evad- ing it if the contract stands? The Imperial statute 20 Geo. II. c. 33, makes marriages celebrated by license, where either of the parties is under twenty-one (not being a widow or widower) without the consent of the father, or if he be not living, of the mother or guard- ians, absolutely void. The absence of such a clause in the Ontario Act leaves this subject in a most unsatis- factory condition. All the above questions may be raised certainly at any time within three years after the date of the ceremony. After three years from that date the Legislature declares that, as above stated, the solemni/.ation is legal and binding, or, in other words, that the marriage is a good marriage so far as regards any of the informalities mentioned. If the contract was originally a good contract this provision was un- necessary. If it might be set aside for informality, what is tlie position of persons during the three years after the ceremony, who thought they were married, but did not by inadvertence comjily with the Act ? The ques- tion is too serious to trifle with, and should be settled by the Legislature as soon as possible. II. I am next to consider the manner in which mar- riages may be dissolved; and this is either by death or divorce. There are two kinds of divorce, the one total, the other partial; the one " a vinculo matrimonii," the otlier merely *' a mensa et thor ,." The total divorce, *' a vinculo matrimonii," must be for some of the canon- ical causes of impediment before mentioned; and those existing before the marriage, as iy always the case in consanguinity; not supervenient, or arising afterwards, as may be the case in affinity or corporal imbecility. P'or in all cases of total divorce, the marriage is decl'.red * .See p i;4'-' -^it, post. ■p^n mar- death one CHAP. I, § 3] Rohdive (Private) 'MM null, as hnvinj]j boon absolutol.v unlawful ab initio; and the partioH are thorofore soparatod " pro salute animarum "; for which reason, as was before observed, no divorce can be obtained but durin}jc the life of the parties. The issue of such marriage as is thus entirely dissolved are bastards. Divorce *' a mensa ot thoro " is when the marriajje Divorce " viensa ft is just and lawful ab initio, and therefore the law is ten- thon>. der of dissolving it; but, for some supervenient cause, it becomes improper or impossible for the^ parties to live together; as in the case of intolerable ill-temper, or adultery in either of the parties. For the canon law. which the common law follows in this case, deems sr» higlily and with such mysterious reverence of the nuptial tie, that it will not allow it to be unloosed for any cause whatsoever, that arises after the union is made. And this is said to be built on the divine revealed law; though that expressly assigns incontinence as a cause and indeed the only cause, why any man may put away his wife and marry another. The civil law, which is partly of Tagan origin, allows many causes of absolute divorce, and some of them pretty severe ones (as if a wife goes to the theatre or the public games without the knowledge and consent of the husband); but among them adultery is the principal, and, with reason, named the in-at. In case of divorce **' a mensa et thoro " the law Aiimony. allows alimony to the wife: which is that allowance which is made to a woman for her support out of the husbj'.nd's estate; being settled at the discretion of the Judge, on consideration of all the circumstances of the case. This is sometimes called her estovers; for which, if he refuses payment, there Avas a writ at common law " d'» estoveris habendis," in order to recover it. It is generally proportioned to the rank and quality of the parties. But in case of elopement, and living with an adulterer, the law allows her no alimony. The subject of divorce is conlided to the Dominion by tho B. N. A. Act. As has been stated already,* the Senate disposes * See pa<,'e 222, ante. iSBB am Rights of Persons [PAUT I '\{ii'j i? i-::ii; m n lit ii'ii of applications for divorce, but the bill, when passed by the Senate, reciuires the consent of the House of Com- mons and of the Governoi'-dleuei'al to become law. There is no Divorce Court for the Dominion, althouj»:h there are such Courts in some of the provinces, but not in Ontario. The reason for this dilTerence is that by the B. N. A. Act the laws and Courts in force at the pas- sage of that Act were continued in the respective pro- vinces forminj? t\ut union.* Upper Canada had no Divorce Court, nor had the I'rovinre of Canada, and therefore Ontario has none, while those in the other provinces continued to exist. No such Court has yet been estab- lished by the Dominion, and the result would be intol- erable hardship were it not that in the American Union divorces are not diflicult to obtain, and if secured with- out fraud or collusion are recognized in Canada as valid. Either party can therefore rid himself or herself of a dis- tasteful or unworthy partner with comparative facility. For such inhabitants of Ontarit)i as desire a Canadian divorce, the Ontario Courts ailord relief only in cases where there never was a legal marriage. That is, in cases of fraud, mistake, duress, lunacy, the absence of consc^nt where the parties are unuer legal age, and even with consent, if the parties are under age and steps are taken to annul the marriage before they come to that age of consent when they may agree to continue together — in tliese cases the Ontario Courts may declare that the parties were never married, and pronounce them still unmarried. But " divorce a mensa et thoro " for inhabi- tants of Ontario can be declared only by Parliament. The main cause for such a declaration is adultery, but it has the power to grant divorce for any cause which would have been recognized by the Ecclesiastical Courts in England.f • See section 129, B. N. A. Act. t The law of divorce in Ontario cannot te said to be satisfactory. The establishment of a Divorce Court for Ontario would, it is believed, be well received in this Province, [)rovided the causes of divorce were restricted as they are in Enf;land. Koman Catholics are opposed to divorce on principle. Protestants regard the question as one of expe- diency nnd, there is much to be said in favour of properly restricted means of dissolvinf; a bond which confers personal rights while it does CHAP. I, § 3] Rvlative {Pvivatc). MOS IIT. Iliivin;; Ihus nhown how inarriaf;«'» may bo made or (lissolvcd, I coino now, lastly, to speak of the logal conscriuoncos of such making or dissolution. By niarriajLjo the husband and wife wen' for most purposes one i>erson in law: that is, th<' very beinj; or leg.al existence of tlie woman was suspended durinj; the marrlajje, or at least was incorporated and her children, issue of any marriage. Failing; any issue, then to her husband or anyone else. Before the 4th May, 18.59, she could not dispose of her property by will e.xcept under a marriage settlemejit. Since Jan. 1,1874, the power of a married woman to will her property has been unfettered. I,i';^'al con- ^iMiucni'fM I if mar- riii^ci. ]J. S. (). (•. KH), s. 5 ^, IMAGE EVALUATION TEST TARGET (MT-3) V.i 1.0 I.I In* 1^ IM 1^ 12.2 la. III 1.25 III 1.4 1.6 ■^ 6" ► ^ V] #5. '/ Itaographic Sciences Corporation 33 WIST MAIN STREri WEBSTER, N.Y. USM (716) 872-4503 l/u .^o A"* 360 Rights of Persona [part I husband is bound to provide his wife with neces- saries by law, as much as himself; and if she contracts debts for them, he is obliged to pay them; but, for any- thing besides necessaries, he is not chargeable. Also, if a wife elopes, and lives with another man, the hus- band is not chargeable even for necessaries, at least if the person who furnishes them is sufficiently apprised of her elopement. If the wife be indebted before marriage, the husband is bound afterwards to pay the debt so far as he may have acquired property through her. A jiarried woman is now capable of suing and being sued, eitlier in contract or in tort, in all respects as a feme-? e Her husband need not be joined with her as plaiutifF or defendant. Any damages or costs recov- ered aga' f her are payable only out of her separate estate, ».. L nhe recovers damages or costs, they belong to her a- ,'i»^ In criniinal prosecutions also, the wife may be in- dicted and punished separately; for the onion is only a civil union. But in trials of any sort, they were not allowed to be evidence for or against each other; paruy because it was thought impossible that their testi- mony could be indifferent, but principally because of the union of persons; and, therefore, if they were admitted to be witnesses for each other, they would contradict one maxim of law, " nemo in propria causa testis esse debet," and, if against each other, they would contradict another maxim, " nemo tenetur seipsum accusare." The old rules as to evidence as between husband and wife are much changed. It will be necessary to deal with them in considering the law of evidence in another part of these commentaries, and I do not propose to state them here. A wife may have security of the peace against her husband, or, in retura, a husband against, his wife. The Courts of law, it was thought, would permit a hus- band to restrain a wife of her liberty in case of any gross misbehaviour, but this doctrine is not now held. The statutes relatinf; to Bolemnization of Marriage are mentioned in the footnote to page 359. Those relating to the property of married women and the conveyance of the real estate of married women are not dealt with in this place. ^T nst her wife, a Uus- of any held. tioned in married n are not CHAP. 1, § 3] Relative (Private). 867 The next and the most universal relation in nature ^»"^"t , . and olul.t. is immediately derived from the preceding, being that between parent and child. Children are of two sorts — legitimate and spurious, or bastards: each of which we shall consider in their order; and, first, of legitimate children. I. A legitimate child is he that is born in lawful ^i**- ., wedlock, or within a competent time afterwards. " Pater dren. est quem nuptite demonstrant," is the rule of the civil law; and this holds with the civilians, whether the nup- tials happen before, or after, the bir^h of the child. With us in England the rule is narroved, for the nup- tials must be precedent to the birth; of which more will be said when we come to consider the case of bastardy. At present let us inquire into — 1. The legal duties of parents to their legitimate children. 2. Their power over them. 3. The duties of such children to their parents. 1. And, first, the duties of parents to legitimate Duties of children; which principally consist in three particulars:''*'*" * jtheir maintenance, their protection, and their educution. The duty of parents to provide for the maintenance Mainton- of their children, is a principle of naturiil law; an obli *°'** gafion laid on them not only by nature herself, but by their own proper act, in bringing them into the world; for they would be in the highest manner injurious to their issue if they only gave their children life, that they might afterwards see them perish. By begetting them, there- fore, they have entered into a voluntarv obligation to endeavour, as far as in them lies, that the life which they have bestowed shall be supported and preserved. And thus the children will have a perfect right of re- ceiving maintenance from their parents. I Our law has made no provision to prevent the dis- inheriting of children by will: leaving every man's pro- perty in his own disposal, upon a principle of liberty in this, as well as every other action; though perhaps it had not been amiss if the parent had been bound to leave at the least a necessary subsistence. Indeed, among per- sons of any rank or fortune, a competence is generally •i , ■■! if s^l il 868 Rights of Persons [part I provided for younger children, and the bullc of the estate nettled upon the eldest, by the marriage articles. Heirs also, and children, are favourites of our Courts of justice, and cannot be disinherited by any dubious or ambigu- ous words; there being required the utmost certainty of the testator's intentions to take away the right of an heir. Protection From the duty of maintenance we may easily pass to that of protection, which is also a natural duty, but rather permitted than enjoined by law, nature in this respect working so strongly sm to need rather a check than a spur. A parent may, by our laws, maintain and uphold his children in their lawsuits, without being guilty of a legal crime of maintaining quarrels. A pa- rent may also justify an assault and battery in defence of the persons of his children: nay, where a man's son was beaten by another boy, and the father went near a mile to find him, and there revenged his son's quarrel by beating the other boy, of which beating he afterwards u if jrtunately died; it was not held to be murder, but manslaughter merely. Such indulgence does the law show to the frailty of human nature, and the workings of parental affection. Education The last duty of parents to their children is that of giving them an education suitable to their station in life : a duty pointed out by reason, and of far the greatest importance of any. For, it is not easy to imagine or allow that a parent has conferred any considerable benefit upon his child by bringing him into the world, if he after- wards entirely neglects his culture and education, and suffers him to grow up like a mere beast, to lead a life useless to others and shameful to himself.* 2. The power of parents over their children is de- rived from the former consideration, their duty: this authority being given them, partly to enable the parent more effectually to perform his duty: and partly as a recompense for his care and trouble in the faithful dis- charge of it. And upon this score the municipal laws Power of (iarent.i. * See what has becu said anto, page 307. *r CHAP I, § 3] Relative {Private). 309 of some nations have given a mucli larger authority to the parerts than others. The power of a parent by the hiw of Ontario is moderate; but still sufficient to kee]) the child in order and obedience. He may lawfully correct his child, being under age, in a reasonable manner; for this is for the benefit of his education. The consent or concurrence of the parent to the marriage of his child under age was also directed by our ancient law to be obtained; and it was, as explained in considering the relation of husband and wife, absolutely necessary, for without it the contract was void; but it is now only required under the circumstances I have stated in the preceding pages. This is a means which the law has put into the parent's hands in order the better to discharge his duty ; first, of protecting his children from the snares of artful and designing persons ; and, next, of settling them properly in life, by preventing the ill-conse- quences of too early and precipitate marriages. A father has no other power over his son's estate than as his trustee or guardian; for, though he may receive the profits during his child's minority, yet he must account for them when he ernes of age; but if the child have an independent fortune, he may obtain a reference to a Judge in Chambers, to see whether it be of sutticient amount to afford the child a suitable maintenance. He may indeed have the benefit of his children's labour while they live with hi'j, and are maintained by him; but this is no more than he is entitled to from his appren- tices or servants. The legal power of a father (for a mother, as such, was entitled until very lately, to no power, but only to reverence and respect), the power of a father, I say, over the persona of his children ceases at the age of twenty-one: for they are then enfranchised by arriving at years of discretion, or that point which the law has established (as some must necessarily be established) when the empire of the father, or othei* guardian, gives place to the empire of reason. Yet, till I that age arrives, this empire of the father continues even after his death; for he may by his will appoint a KB.— 24 370 Riff Ids of Peraonn [part I Duties of children to parents Illegriti* ninte children, i Bastards. fruardinn to his children. He may also delegate part of h'lH parental authority, during hiH life, to the tutor or Hchoolmaster of hin child: who in then in loco parentis, and has such a portion of the power of the parent com- mitted to his charge, viz., that of restraint and correc- tion, as may be necessary to answer the purpose for which he is employed. And a mother, against whom adultery has not been established, may obtain access to Sher infant child on application to the Court, if they shall see fit to grant it : or if such child be within seven years of age, the custody may be gi»en to the mother until attaining that age. Hut the Court will deprive of the custody of their infant children, persons grossly ill-treat- ing them, or living in gross immorcality or avowed im- piety, or otherwise acting in a manner injurious to the morals or interests of their children, and will appoint suitable guardians. 3. Tlie duties of children to their arents arise from a principle of natural justice and retribution. For to ■ those who gave us existence, we naturally owe subjec- je^tion and obedience during our minority, and honour and reverence ever after: they who protected the weak- ness of our infancy are entitled to our protection in the infirmity of their age; they who by sustenance and edu cation have enabled their offspring to prosper, ought in return to be supported by that offspring, in casf* they stand in need of assistance. Upon this principle proceed all the duties of children to their parents which are en- joined bj' positive laws. II. We are next to consider the case of illegitimate children, or bastards: with regard to whom let us in- quire: 1. Who are bastards. 2. The legal duties of the parents towards a bastard child. 3. The rights and in- capacities attending such bastard children. 1. Who are bastards. A bastard by our Ontario laws, is one that is not only begotten, but born, out of lawful matrimonj'. The civil and canon laws do not allow a child to remain a bastard, if the parents after- wards intermarry; and herein they differ most materi- ally from our law; which, though not so strict as to re- CHAP. I, § 3] Rdat'ive (Private). 371 tario )Ut of not after- laterl- to re- (juire that the rliilil sliall lu' bcpotton, yet niako it an indlHponsnble condition, to render it legitimate, tliat it shall be born after lawful wedlock. It appears, therefore, that all children born before niatrinion.v are bastards by our law: so it is of all child- ren born so long after the death of the husband that, by the usual course of gestation, they could not be begot- ten by him. Kut, this being a matter of some uncer- tainty, the law is not exact as to a few days. And this gives occasion to a proceeding at common law, where a widow is suspected to feign herself with child in order to produce a suppositious heir to the estate. In this case, with us, the heir presumptive may have a writ '' de ventre inspiciendo," to examine whether she be with child or not; and, if she be, to keep her under proper restrant till delivered; but, if the widow be, upon due examination, found not lu'egnant, tlie presumptive heir shall be admitted to the inheritance, though liable to lose it again on the birth of u child within forty weeks from the death of a husband. IJut if a man dies, and his widow soon after marries again, and a child is born within such a tiT>ie as that by the course of nature it might have been the child of either husband; in this case he is said to be more than ordinarily legitimate; for he may, when he arrives at years of discretion, choose which of the fathers ho pleases. A bastard may be born before the coverture or marriage state is b(?gun, or after it is determined, so also children born during wedlock may in some circum stances be bastards. As if tlie husband be out of the I'rovince of Ontario for above nine months, so no access to his wife can be presumed, her issue during that period shall be bastards. But, gener- ally', during the coverture access of the husband shall be presumed, unless the contrary can be shown ; which nmy, however, be proved either by showing him to be elsewhere, or that access did not take place, or was impossible: for the general rule is, " pra?sumitui- pro legitimatione." In a divorce "a mensa et thoro,'* if the wife breeds children, they are bastards; for th^i fl f I .. !| 372 Rights of Person f* [part I Dutiea of ItarentH to lastard children. HupiK>rt of ilif^iti- inatu children. R. S. O. c. 138. Rights and inca- pacities of u bastard. law will pr('HiinH> the IniHliaiid iiiul wife conrorniahlo to the sentence of Hepanition, nnleKH neceHH be proved: but. in a voluntary separation hy agreement, the law will suppose access, unless the negative be shown. 80, also, if there is an i>pparent impossibility of ]>rocreation on the part of ihe husband, as if he be only (Mght yeai'H old, or the liki;, there the issue of the wife shall be bastard. Likewise, in case of divorce in an Ontario Court "a vinculo matrimonii," all tlu? issue born during the coverture are bastards; because such divorce in always upon some cause, that ren IH th<'r(.'for<' of kin to nohody, und hau no ancoHfor from whom any iniicritablt* hlood can hv de- rived. A t)aHtard wim also, in Hh'ictu«*8H, incapable of holy orders: and, though that were diMpenned with, yet he waH utterly diHqualilled from holding any dignity in thtt Church; but thiH do<'trine He«?mH now olmolele; and in ail other respectH, there \n no diHtinclion between a baHtard and another man. And really any other diHtinc- tion but that of not inheritin^^', whicli civil policy ren- derH neccHHary, would, witli regard to tlie innocent olT- Kprinf; of liiH parentH' crimei^, be odiouH, unjuHt, and (!ruel to the hiHt dejjree: and yet Mie civil law, ho boasted of for its eer8onH na have nut diaeretion enough to mnniiK*? their own conceruH. In ouite, therefore, any Ktiardiun abuseB his trust, the Court will cheek and puniHli him; nay, MometinieH will proceed to the removal of him, and appoint another in his atead. 2. Let us next consider the ward or jierson witliin age, for Whose assistance and support these };uardiaim are constituted by law; or who it is that is said to Xw within age. The ag<.*8 of male and female are different for different purposes. A male at twelve years old may take the oath of allegiance; at fourteen is at years of discretion, and therefore mny consent or disagn^' to mar- riage, may choose his guardian. No will of any person under twenty-one is valid; but at seventeen he ma}' be an ex€»cutor ; and at twenty-one is at his own disposal, and may client his lands, goods and chattels. A female also at seven years of age may be betrothed or given in marriage; at nine is entitled to dower; at twelve is at years of maturity, and therefore may consent or disagree to marriage; at fourteen, however, she is at years of legal discretion, and may choose a guardian : at seventeen may be executrix; and at twenty-one may dispose of herself and her lands. 80 that full age in male or female is twentj'-one years, which age is com- pleted on the day preceding the anniversary of a person's birth; who till that time is an infant, and so styled in law. I'rivileffCB SiJi of abilities: Infants, Infants have various privileges, and various dis- but their very disabilities are privileges: in order to secure them from hurting themselves by thelL' own improvident acts. An infant, when sued, appears to defend his cause by guardian; for he is to defend him against all attacks as well by law as otherwise: but he may sue either by his guardian or " prochein amy " his next friend who is not his guardian. But an infant may prosecute in the Division Courts any suit for wages for any sum not exceeding f 100, as if of full age. The " pro- chein amy " may be any person who will undertake the infant's cause; and it frequently happens that an infant, CHAP. I, vS ;j| Rrlntire ( I'l'ivute). 877 IS dirt- h: in tliL'iu (1 him >ut lie " liis t may es for " pro- e tlie nfant, by I»1h •' inorlicin amy," liiMtiluti'M a Hiilt analnnt a traudiil lit K*i)ii'^'* With rrjjard to cHtatoH and «lvll property, an infant has many privilcRcH, and tiiin may Im' Haled any manner of contract, tliat will bind him. Hut Htill to all these rulew there are hoimc exceptioiiH: i»nrt of which were just now mentioned in r^ tvoninj; up the dilTerent capaciticH which they asHUiiie at ditTerent a^es; and there are others, a few of whir' it iimy not 1;»* im- proper to recite as a K«'neral specimen of tlie whole. Ad'.I, first, it is true that infants caiinix alieiie their •■states: but infant trustees, or m(Mtj.',M^e<'S, are eiiailded to convey, under the direction «»f the Court, the estates they hold in trust or iiKU'tKa^'e to such person a^ the Court shall appoint. Also it is K^Mierally true, tluit an infant can do no le^al act. An infant may pui'chase lands, but his purchas(> is incomplete: for, when he comes to ap* he may either aj^ree or disajjrce t<» it, as h( thinks prudent or proper, witlituit alleKin^; any reas(»n; and so may his heirs aft(>r him, if he dies without having completed his aj;reenient. And j;ener- ally all contracts held by the Court to be to the prejudice of the infant are void; tliose for his bene- fit are valid; whih' those of an intermediate kind the Court would probably hold to be voidabh? at his election. it is, farther, j;enerally true that an infant under twenty-one can make no deed but what is afterwards voidable: yet in some cases he may bind himself api>rea- I tice by dt d indented or indentures for seven years; and he may by deed or writing appoint a };uardian to liis children, if he has any. Also, it is ;?enerally true that an infant can make no other contract that will bind him; yet he may bind himself to pay for his necessary meat, drink, apparel, physic, and such other necessaries; 378 liiffhts of Persona [l-AUT I R H. o. G. 123, B. Custody Ii.fants. RS. C. c. 137. and likewise ^or his good teaching and instruction, whereby he may profit himself afterwards. Finally, no action can be maintained to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification after full age, of any promise or simple contract made during infancy, unless the promise or ratification is made by some writing by the person to be charged, or by his agent duly authorized. of The custody of infants is now regulated by statute as follows: The High or Surrogate Court may, upon the appli- cation of the mother of an infant, make an order regard- ing the custody of the infant and the right of access of either parent. In making this order the Court refers to the welfare of the infant and considers the conduct of the parent, and the wishes as well of the mother as of the father. The order may be afterwards altered, varied or discharged on the application of either parent or of any guardian. The order may provide for the maintenance of the infant by payment by the father or by payment out of any estate to which the infant is entitled, taking into consideration the pecuniary cir- cumstances of the father or the value of the estate. No order can be made in favor of a mother against whom adultery has been established by judgment in an action for criminal conversation at the suit of her husband against any person. On the death of the father of an infant, the mother, if surviving, becomes its guardian, either alone when no other guardian has been appointed by the father, or jointly with any guardian whom the father may have appointed. The mother of an infant may, by deed or will, appoint a^y person to be guardian of such child after the death of herself and the father of the infant, if the infant be then unmarried. Where guardians are appointed by both parents they must act jointly. In the event of guardians being unable to agree among themselves, or with the father upon a ques tion affecting the welfare of an infant, the Court will make such order regarding the matter in difference as CHAP. I, § 8] Relative (Private). 879 may be necessary. Testamentary guardians are remov- able *or the same causes as other guardians and trustees. The Surrogate Court for the county within which an Infant resides may appoint the father of the infant to be guardian, or, with the consent of the father, may appoint some other suitable person. If the infant is over four- teen years of age, no appointment can be made without his consent. If the infant has no father living, or any local guardian authorized by law to take the care of his person and the charge of his estate, then the Court may appoint a guardian. From every guardian appointed by the Court a bond is taken for the faithful performance of the trust; the amount of the penal sum and the securi- ties must be approved of by the Judge. Guardians when appointed have authority to act for and on behalf of their ward; they may appear in any Court and prose- cute or defend any action in the infant's name; they have the charge and management of the infant's estate, real and personal, and the care of his person and edu- cation. As has been seen, in considering the subject of apprentices, guardians have also the right af appren- ticing minors.* Where an infant is seized or possessed of any real Saks of estate, and it is made to appear to the High Court of rearestate. Justice that a sale, lease, or other disposition of this estate, or of some part of it, is necessary or proper for the maintenance or education of the infant, or that by reason of any part of the p.«)perty being exposed to waste and dilapidation or depreciation, the infant's interest requires it, a sale or lease nmy be ordered. No sale or any other disposition can be made against the provisions of the will or deed by which the estate has been devised or granted to the infant. When the infant is over fourteen years of age his consent is necessary. Moneys arising from any sale are applied and disj)osed of as the Cuurt directs. If any real estate of an infant is subject to dower, and a doweress con- sents in writing to accept in lieu of dower any gross sum which the Court thinks reasonable, or the permanent investment of a reasonable sun. in such a way that the • Seo page '6'M, ante, 380 Rights of Persons [PAUT I :><» Vict. V. 45. interest of the amount glitill be made payable to the doweregg during her life, the Court or Judge may direct tlie payment of tlie amount upon the proofH applicable to life annuities. The Court may direct the payment to the doweress of an annual sum, or of the income or interest to be derived from the purchase money, and for that pur- pose may order the investment of so much of the pur- chase money of the property as may be required. I ought not to close this section without a brief re- ference to the law relating to the prevention of cruelty and better jjrotection of children. This new branch of jurisprudence is only in its initiatory stages, but already the results are satisfactory. Unworthy parents may b«f deprived of their children and foster homes may be sought out and the children may be sent there by order of a police magistrate or any two justices of the peace. Children's aid societies in a municipality, when formed, are given extensive jwwers of interference. Great hopes are entertained that this long-felt want is at last in the way of being supplied. And thus much, at present, for the privileges and disabilities of infants. Statutes relating to Parent and Child. Page. 369, .Infants— R. 8. O. c. 137 ; 1802 c. 29 ; 1895 c. 13. 372.. Support of Illej?itimate ChiUlien— R. S. O. c. 138. 375.. Official Guardiftn— 58 Vict. c. 12, sec. 159 378— Rptiflcation— R. S. O. c. 123, s. 6. 380— Prevention of Cruelty to Children— 1893 c. 45 ; 1895 c. 62. CHAPTER I.— (Continued). SECTION 4. ARTIFICIAL PERSONS-CORPORATIONS AND COMPANIES Abtificial Pkhsonh, " ConroiiA- TIONB." Sorts of Corporaliona. Anpfeijiite and sole. P'.ccleniaiiticnl and lay. Lay corporntions are. Civil and elermoHynary . INCIDKNTB of CoItPOIlATIOXH. I. llow cDrporations may be crt'tttt'd. Royal consent necessary. Ry Act of Parliament. By Cliarter — Letters Patent. Must have names. II. Powers, capacities and in- capacities of corporations. III. IIow corporations are visited. IV. IIow corporations may be dissolved. Formation, powers and windiny-Hp of Joint Stock I'ompanic's under Ontario Legislation. Formation, powers and windin<»-up of Joint Stock Companies under Dominion Legislation. Ranks. Insiiranco Companies. Unildint; Societies. Railway Companies. W(* have hitherto considered persons in their natural capaeities, and liave treated of their rights and duties. Hut, as all personal rif^hts die with the person, and, as the necessary forms for investing? a series of individuals, one after another, with the same identi- cal rights, would be very inconvenient, if not impracti- cable; it has been found necessary, when it is for the advantage of the public to have any particular rights j kept on foot and continued, to constitute artificial per- sons, who may maintain a perpetual succession, and en- joy a kind of legal immoi'tality. These artificial persons corpora- are called bodies politic, bodies coiporate (corpora cor- *'""*• porata), or corporations: of which there is a great variety subsisting, for the advancement of religion, of learning, and of commerce; in order to preserve entire and forever those rights and immunities, which if they were granted only to those individuals of which the body corporate is composed, would upon their death be utterly lost and extinct. 382 Rights of Persona PART I Before we proceed to treat of the several incidents of corporations, as regarded by tlie laws of Ontario, let us first take a view of the several sorts of them; and then we shall be better enabled to apprehend their respective qualities. ( The first division of corporations is into aggregate ! and sole. Corporations aggregate consist of many per- sons, united together into one society, and are kept up by a perpetual succession of members, so as to continue forever; of which kind are the major and commonalty of a city, the head and fellows of a college, the dean and chapter of a cathedral church. Corporations sole con- sist of one person only and his successors, in some particular station, who are incorporated by law, in order to give them some legal capacities and advantages, par- ticularly that of perpetuity, which in their natural per- sons they could not have had. In this sense the King is a sole corporation, and the Governor-General of Can- ada and the Lieutenant-Governor of Ontario are each of them a sole corporation. Another division of incorporations, either sole or aggregate, is into ecclesiastical and lay. Ecclesiastical corporations are where the members that compose it are entirely spiritual persons; such as bishops; certain deans and prebendaries; all archdeacons, parsons and /Vicars; which are sole corporations: deans and chapters at present, and formerly prior and convent, abbot and monks, and the like bodies aggregate. These are erected for the furtherance of religion, and perpetu- ating the rights of the church. Lay corporations are of two sorts, civil and eleemosynary. The civil are such as are erected for a variety of temporal purposes. The King, for instance, is made a corporation to prevent in general the possibility of an interregnum or vacancy of the throne, and to preserve the possessions of the Crown entire; for, immediately upon the demise of one king his successor is in full possession of the regal rights and dignity. Other lay corporations are erected for the good government of a town, or particular district, as a mayor and commonalty, bailiff and burgesses, or the like, usually called municipal corporations: some for CHAP. I, § 4] Corporations and CornjKinies. 383 le or ttical ise it rtain and Ipters and are |petu- xe of such The nt in icy of Irown king ights r tlie as a Ir the le for the advancemont and regulation of manufactures and commerce; as tlie trading companies of towns: and some for the better carrying oh of divers special purposes; as public school trustees or boards, for conservation of the property of the school section; the College of Physi- cians and Surgeons, for the improvement of medical science; the Koyal Society of Canada, for the advance- ment of general knowledge; and the various s:)cietie8 established for promoting the study of anticiuities. The eleemosynary sort are such as are constituted for the perpetual distribution of the free alms, or bounty, of the founder of them to such i)ersons as he has directed. Of this kind are all hospitals for the maintenance of the poor, sir rogativc power the ordinary method of creating corporations has been that of creation by the legislative branches of the government. And all the other methods, therefore, whereby cor- porations exist, by common law, by proscription, and by an Act of Parliament, were for the most part redu- cible to this of the King's letters patent, or charter of incorporation. The King's creation may be performed by the words " creamus, erigimus, fundamus, incor- poramus," or the like. Nay, it is held, that if the King grants to a set of men to have " gildam mercatoriam," a mercantile meeting or assembly, this is aiont s«r*'i cient to incorporate and establish them forever. /■, The Parliament, we observe, by its absjii.tr \Md / transcendent authority, may perform the act of iw, .po ration, or any other act whatsoever: and now actually does perform it to a great extent. The King may in theory prevent it when he pleases, by refusing his assent to the bill, but such a course is not likely to be taken in our times. CHAP. I, § 4.] Corporations and Conipaiiies. a«5 cor- aud redii- ;r of rmed icor- lually ly in Issent len in The Kinp (it is said) may grant to a subject the power of ercctinpf corporations, tliough tlie contrary was formerly lield: that is, lie may permit thorate functions. The name of incor- poration, says Sir Edward Coke, is as a proper name, or name of baptism ; and therefore, when a private founder gives his college or hospital a name, he does it only as a godfather; and by that same name the King baptizes the incorporation. II. After a corporation is so formed and named, it acquires many powers, rights, capacities and inca- pacities, which we are next to consider. Some of these are necessarily and inseparably incident to every cor- poration, which incidents, as soon as a corporation is duly elected, are tacitly annexed, of course. As, 1. ^To have perpetual succession. This is the very end of its incorporation: for there cannot be a succession for- ever without an incorporation; and therefore all aggre- gate corporations have a power necessarily implied of ejecting members in the room of such as go off. 2. To i sue or be sued, implead or be impleaded, grant or receive, by its corporate name, and do all other acts as natural persons may. 3. To purchase lands, and hold them, for the benefit of themselves and their succes- sors, which two are consequential to the former. 4. To have a common seal. For a corporation, being an invisible body, cannot manifest its intentions bv anv K.n.— 25 ''(ir)K)rat«« nanieH. r m * m : II ' i Powf-rs, : ll ciM>aciti«'s ■1 and inoii- :| BS pacitiea. m 'U 3KU KiglilH of Persona [I'AUT I IKTBonal act or oral diHoourBo; it thon-foro acts and BpeakH only by its common swil. For, thoiiRh tlie par- ticular m<*mb«»r8 i!»ay express tlulr private consent* to any act, by words, or sipninR their mimes, yet this does not bind the iorporaflon: it is tlie fixing of the seal, and that cmly, wliich unites the several assenti* of the individuals who compose the community, and umkes one joint assent of the whole. 5. To make by- laws, or private statutes, for the better government of the corporation; which are binding upon themselves, unless contrary to the laws of the land, and then they are void. This is also included by law in the very act to the natural body for the governing it, so by-laws or statutes are a sort of political reason to goveni the body politic. These five powers are inseparably inci- dent to every corporation, at least to every corporation ftgRregate, for two of them, though they may be prac- tised, yet are very unnecessary to a corporation sole, viz., to have a corporate seal to testify his sole assent, and to make statutes for the regulation of his own conduct. There are also cert.'iin privileges and disjibilities that attend an aggregate cori)oration, and are not appli- cable to such as are sole; the reason of them ceasing,^ and of couise the law. It must always appear by attor- ney; for it cannot appear in person, being invisible, and existing only in intendment and consideration of law. It can neither maintain, nor be made defendant to, an action of battery or su(;h like personal injuries; for a corporation can neither beat, nor be beaten, in its body politic. A corporation cannot commit treason, or felony, or other crime, in its corporate capacity: though its members may, in their distinct individual capacities. Neither is it capable of suffering a traitor's or felon's punishment, for it is not liable to corporal penalties, nor to attainder, forfeiture, or corruption of blood. It cannot be executor or administrator, or perform any personal duties; for it cannot take an oath for the due execution of the office. It cannot be seised of lands to the use of another; for such kind of confidence is foreign to the end of its institution. Neither can it be f ciiAl'. f, § 4] CorfHrnttiovH <'ar to any suit by attorney an' al- ways bv dislresH d into the eccle- siastical courts upon any account; for those courts art only pro salute aninin% and their sentences can only be enforced by spiritual censures: si (;onsideration, which, curried to its full extent, would alone demonstrate th(> improju'iety of these courts interfering in any temporul rights whatwoever. There are also other incidents and |)owers, which incidents belong to some sort of cori>f>rations, and not to ot liere. *"^^j.^ An aggregate corporation may take goods and chattels which be- for the benefit of themselves and their successors, but a J,'",f(, con- sole corporation cannot: for such movable property jg ix^rationH. liable to be lost or embezzled, and would raise a multi- tude of disputes between the successor and executor; which the law is careful to avoid. In ecclesiastical and eleemosynary foundations, the King or the founder may give them rules, laws, statutes, and ordinances, whii-h they are bound to ob8(»rve: but corporations merely lay, constituted for civil purjjoses, are subject to no particu- lar statutes; but to the common law, and to their own by-laws, not contrary' to the laws of the realm. Aggre- gate corpor.itions also, that have by their constitution a head, as a dean, warden, master, or the like, cannot do any acts during the vacancy of the headship; except only apipointing another: neither are they then capable of receiving a grant; for such corporation is incomplete- without a head. In aggregate corporations also, the act of the major part is esteemed the act of the whole. By the civil law this major part must have consisted of j two-thirds of the whole, else no act could be performed: which perhaps may be one reason why they required 388 Ili/htM of Pf'i'fionn [I'AKT I three ut h'jiHt to make a corporation. But, with iih, any majority is BufHcicnt to determine tlie act of the wliole body. How far a We before obM<'rved tliat it waH incid(>nt to every tiorcaii <; landn for iHirciaho theniselveM and BUcceHSors: and this i8 regularly true at the common hiw. But tliev are excepted out of viii. c. r-.. thle uhch, by 8tatutr pci'Muii to be viHitor, then iiiM iiNHi);ii<>(> ho sip- )>oiiit<>ra- corporations may be dissolved. Any particular mem- iw'dlH-"*^ ber may be disfranchiHed, or lose his place in the cor- fK.lved. poration, by acting contrary to the laws of the society, or the laws of the land : or he may resign it by his own voluntary act. Hut the body politic nmy also itself be dissolved in several ways; which disMolutiou is the civil death of the corporation: and in this case their lands and tenements shall revert to the persim, or his heirs, who granted them to the corporation: for the law an- nexes a condition to every such grant, that if the cor- poration be dissolved, the grantor shall have the lands again, because the cause of the grant fails. The grant is indeed only during the life of the corporation; which may endure for ever: but, when that life is determined by the dissolution of the body politic, the grantor talces it baclv by reversion, as in tlie case of everj' other grant for life. The debts of a corporation, either to or from it, are totally extinguished by itu dissolution; so that the members thereof cannot recover, or be charged with them, in their natural capacities. A corporation may be dissolved: 1. By Act of Par- liament, which is boundless in its operations. 2. By the natural death of all its members, in case of an aggre- gate corporation. 3. By surrender of its franchise into the hands of the King, which is a kind of suicide. 4. By forfeiture of its charter, through negligence or abuse of its franchise, in \^'hich case the law judges that the body politic has broken the condition upon which it was incorporated, and thereupon the incorporation is void. And the regular course is to bring on information in nature of a writ of quo warranto, to inquire by what warrant the members now exercise their corporate '.m CHAP. I, § 4] Cor])oration8 and CoinpovicH. powor, havlnjr fser to uiake bylaws relative to tin? stock of the company, to dividends on that stock, to tix Ihf number of directors, to settle the app(»intment and government of the oilicers of the company, to appoint the annual meeting of the comiiany, the procedure at all company meetings, the imiiosition of penalties, and for the conduct of all the atlairs of the company. These by-laws Viiust be conlirmed at a general meeting of the 394 Rights of Persona [PAUT I k Fraudu- lent pro- spectua. 5« Vict, t). 34. Bfi Vict, c. 33. coinpanv duly called for the purpoHt;; in default of con- flrniation at that m(»etin{? they cease from that time to have force. The directors are jointly and severally liable to the servants of the company for all debts not exceeding one year's wajfes for service performed to the company while they are directors. No director is liable unless the comjjan^' or the director has been sued within one year after the debt was accrued, nor before an exe- cution ajjfainst the company has been returned unsatis- fied in whole or in part; in the latter case the amount due on the execution is the amount recoverable witii costs against the directors. If directors pay any divi- dends when the company is insolvent, or which render the company insolvent, or diminish its capital stock, they are jointly and severally liable as well to the com- pany as to the shareholders and creditors for all the debts of the company then existing and thereafter con- tracted during their continuance in olfice. Any direc;- tor may exonerate himself from liability by protesting against the dividend; he must do so within twenty-four hours after he has become aware of it, and must enter on the minutes of the board of directors his protest; he must within eight days afterwards publish' his protest in some newspaper. No loan can be made by the com- pany to any shareholder; if made, all directors and officers of the company making the loan or assenting to it are jointly and severally liable to the company for the amount of it. Where a prospectus or notice invites persons to subscribe or apply for shares, debentures, stock, annuities, on lives or other security of a company, ever}' person who is a director of the company at the time of the issue of the prospectus, or who, with his authority, is named as a director, or who is about to become a director, and every person who has authorized Ihe issue of a prospectus or notice, is liable to i)ay to all persons subscribing or apply- ing on the faith of the prospectus compensation for any loss or damage they may have sustained by reason of any untrue statements. If the prospectus is founded on reports or valuations of t^xperts, then there will be liability to pay compensation if it be proved that the CHAP. I, § 4] Corporations and Comjximes. 395 director liad no rcasonabU' ground to believe tliat tbe person wbo made the statement, report or valuation was competent to make it. If the defendant can prove that he withdrew his consent, or that the prospectus or notice was issued without his autliority, or if he gave reasonable public notice of his dissent, he may be re- lieved from liability. If a prospectus or notice con- tains names which are improperly inserted, the persons who have issued the prospectus are liable in damages to any person injured. 2. Stock. The stock of the company is personal stock, estate, and is transferable as may Vni prescribed by the by-laws of the company. The directors may call upon the shareholders for payment of their stock as may be necessary; not less than ten per cent, must be called in and made payable within one year from the incor- poration of the company, the remainder as required by by-law. Actions may be brought against sharehold- ers in default, if any call has been made on anj' share and is not duly paid; the directors may forfeit any shares, when forfeited they become the property of the company. No share can be transferred until all pre- vious calls have been duly paid, or until declared for- feited for non-payment of calls. No shareholder who is in arrear in respect of any call can vote at any meeting of the company. 3. Books of the company. The company is bound to Comi^'v -'.i keep proper stock books; if not kept and allowed to '^"°'^*- be open for inspection by shareholders and creditors of the company the corporate rights of the company are forfeited. The company is not bound to seek the execution of any trust in respect of any shares. The receipt of a shareholder in whose name tlie stock stands in the books of the company is a good discharge to the company for any dividends or niouty payable iu respect of the shares; the shareholders are not, as such, responsible for any default or liability whatsoever of the company beyond the unpaid amount of their share in the capital stock. Trustees, executors, administra- tors or guardians are not personally subject to liability as shareholders, but the estates in their hands are 396 V Tucorpon tion by Patent. R. S. O. e. 157. Rl(/htft of Persons [I'ART I liable. Tnistees and exoontors may vote on tho stock hold by tlicHi in trust. A person who pledgt?8 his stock may nevertheless vote as a shareholder. If the persons who desire to form a company do not wish to apply for a special Act they may obtain incor- poration by letters patent. This method of incorpora- tion is provided for as follows: The Lieutenant-Governor in Council may, by letters patent under the Great Seal of the province, ^rant a charter to any number of persons, not less than five, who petition for it. Thereby tliese persons and any others who may become shareholders in the company are constiluted a body corporate and politic for all })urposes to which the legislative authority of the Legislature of Ontario extends, excei)t conytruction and erection of rail- ways and all business of insurance, other than insur- ance companies specially formed, to which I shall here- after allude. The name of the Province of Ontario or of some locality in it must constitute part of the name of every company incorporated. The applicants must give notice in tho Ontario Gazette and petiti«m the Lieutenant-Governor through the Provincial Secretary for th(? issue of the letters patent. Before Ictttr.s patent are issued the aj)plicants must establish to tiie satisfaction of the Provincial Secretary or other ollicer the suflicienc}^ of their notice of petition, and that the proposed name is not the name of any other ineorjx)- rated or unincorporated company. When gr. Ontario Gazette; from that date tlie persons therein named and their successors ari> a body corporate and politic by the name given to them. When incorporated, every company may acquire, hold, alien- ate and convey real estate, subject to any restrictions or conditions set out in the letters patent. It becomes invested with all representatives, real and personal, held by or for the company under a trust created with a view to its incorporation. It has all the powers, privileges and immunities re(juisite to the carrying on CHAP I, S ■^] (jOi'imndhntH and Compaun's. 397 of its umlcrtakinj;, as if the company had been incor- porated by a special Act of the Legisljiture. At any time after nine-tenths of the capital stock of the company has been taken np and ten per cent, paid, any of the directors of the company may make a by-law for increasinj; the cai)ital stock of tlie company to any amount which tliey consider requisite for the due carryinfj out of the objects of the company. They may if they see tit decrease the caj>ital stock. No by-law for increasin}; or decreasinji the capital slock can have any force until after it has been sanctioned by a vote of not less than two-thirds in value of the shareholders at a jfc'ueral meetind by supplemen- tary letters patent. These supplementary letters patent must be petitioned for at any time not more than sis months after the passing of the by-law. On a report by the l*rovincial S'-cretary approving of the granting of the petition the Lieutenant-Governor in Council grants supplementary letters patent under the Great Seal and notice is given in the Ontario Gazette. The directors may make a. by-law for creating and issuing any part of the capital stock preference stock, giving this latter stock such ])reference Tiud priority as respects dividends and otherwise over ordinary stock as maj' be declared by by-law. The by-law may provide that the holders of these preference shares can have the right to select a certain st.ited proportion of the board of directors, or may give them such conti'ol over the alVairs of the company as may be considered desirable. The shareholders must sanction the issue of this stock at a meeting called *or the purpose. If a resolution is passed by a vote of not less than two-thirds in value of the shareholders, authorizing an apjilication to the Lieutenant-Governor, supplementary letters patent may also be issued for extending the powers of the company limiting or increasing the borrowing power of the com- pany. i»roviding for the formation of a reserve fund, or other matters for which provision might have been made by the original letters patent. Supjilc- Tiientary Letters Piit-iit. 898 Riqhta of Permni* [I'AUT I Provision- al direct- orH. General re- strictions. The affairs of a company so organized must be man- aged by a board of not less than three directors, who must be shareholders owning stock absolutely in their own right and not in arrear in respect of any call. The persons named in the letters i)atent are called provi- sional directors, and hold office until replaced by others appointed in their stead. Directors are elected for any term not exceeding two years by ballot; they elect from among themselves a president, and name and remove at pleasure the officers of the company. The directors administer the affairs of the company, and may makr* for the company any description of contract which the company may by law enter into. Their by-laws must be submitted to the companj' at its general meeting; in default of confirmation at that meeting they cease to have force. If a by-law is sanctioned by a vote of not less than two-thirds in value of the shareholders at a general meeting duly called for the purpose, the directors may borrow money on the credit of the com- pany; for this purpose they may issue the bonds, shares or other securities of the company and m.ay sell them at such price as they can obtain. No debenturoa can be for a less sum than $100. With the same sanc- tion the directors may hypothecate, mortgage or pledge the real or personal property of the company to secure any moneys borrowed for the above purpose. One- fourth part in value of the shareholders at any time have the right to call a special meeting of the company. The stock of the company is personal estate. The directors of the company call in the instalments on the stock, not less than ten per cent, within one year from the incorporation of the company. The provisions already mentioned of the General Clauses Act relative to books and transfers apply ta companies under the Joint Stock Companies Letters Patent Act. Annual returns are required from com- panies, showing their financial position. No company formed by letters patent can issue any note payable to bearer or any promissory note intended to be circulated as money or as the note of a bank, nor can it engage in the business of banking or insurance. The charter of a CHAP. I, § 4] Corporations (ind ComjKtnies. 391) company is forfeited bv a non-user tlnrinj; three consecu- tive years at any one time, or if the company does not ^o into actual oi)eration witliin three years after it is granted. Companies may be specially incorjmrated to execute th(» office of executor, administrator, trustee, re- ceiver, assifjnee, guardian of ji minor or committee of a lunatic. In this case the Hij^h Court of Justice may ap- point such a company, if approved of by the Lieutenant- Governor in ('ouncil, to act in any trust capacity. No company which has issued or with authority to issue debentures can act in this capacity. The directors of every company incorporated either Word ^ by special Act or by letters patent must insert thomuatap- word " limited " or the words " limited liability " in p®*""- every written contract or undertaking of the company after the name of the company, where it first occurs in the contract or undertaking:. If they do not observe this provision they become jointly and severally liable 52 Vict themselves on the contract. In like manner the corn- See 54 pany must use the word " limited " after its name vict. c. .12,^ wherever it is exposed for public inspection. The com- '"^'=- ^• pany itself and the directors are liable to a fine of twenty dollars for each day on which the name is not so used. If any director or officer of a company, or any other person on its behalf, uses a seal for the company which has not the word " limited " on it by so doing he Incurs the penalty of two hundred dollars. If the com- pany's signature is affixed to any bill of exchange, pro- missory note, cheque, or order for money or goods with- out the word " limited '' upon it, the person authorizing the signature or m signing becomes, in addition to the penalty named, personally liable to the holder of the security. Special provincial statutory provisions, to which I can only allude, are made with regard to telegraph com- panies. Road companies. Timber slide companies. Companies for construction of piers, wharves, dry- docks and harbours, of exhibition buildings, of gas and water-works. \ { 400 Rlillits of Pcrsous [I'AllT I 8 train -lioji tins and oleetric conipanios. ("o-oiK'rative associat ionH. IJcncvolont and provident societies. Meclianics' institutes. Immij:;ration aid societies. Cemetery companies. O iiarantee companies. Wimliiitf All incorporated companies or associations incor- p'"'*! . , porated by i)rovin('ial power, or whose objects are colnl)aIlit^' witliin tlic provincial lepfislative authority of the pro- vince may be wound up in the County Court. A com- pany may be wound up (1) voluntarily; where the period fixed for the duration of the company has ex- pired, or where the event has occurred upon the occui*- rence of which it is provided by the charter that the company is to be dissolved, and the company in a gen- eral meeting has passed a resolution requiring the com- pany to be wound up. Where the company has passed a special resolu- tion requiring the company to be wound up. Where the company, although it may be solvent as respects creditors, has passed an extraordinary reso- lution to the effect that it has been proved to their sat- isfaction that the company cannot, by reason of its liabilities, continue its business, and that it is advisable to wind it up. (2) Where no resolution has been passed, the Court may, on the application of the contributory, make an order for winding up the company in case the Court is of opinion that it is just and equitable that the com- pany should be wound up; the contributory means every person liable to contribute to the assets of a com- pany in the event of its being wound up. From the commencement of the winding up of the company, it cease& to carry on its business, except so far as may be required for its beneficial winding up. Any transfer of shares after the commencement of the winding up is void, except with the sanction of the liquidators. The property of the company is applied in satisfaction of its liabilities, and after payment of them and the charges of winding up, its affairs are dis CHAP. I, § 4] Corporatio)i8 and Compdnies. ti'ilmtcd ainoii}; tlio hhmhIhts acM-onllii}; to tlioir rospoc;- tiv«* I'ijjfhlH iiiid int«M"«'HtH. Liquidators aio appointod for the jmrposo of winding up tlu' afiairw of tiic com- pany and distributinji: the property. Tlw company appoints one or more ium-hoiis to act as liquidators and fixes tlieir reiuuneration; after their appointment all the powers of the directors cease. Inspectors may also be appointed. The li«iuidators must bring actions, carry on the business of the company, sell the property of the company, collect the debts, sell what cannot be collected, do the necessary financing for the c()m])any by bill or note; if necessary tak(? out letters of admin- istration to any deceased contributor, execute all d<'«'d8 or rect'ipts for the j-ompany, and do every act that may be necessary for the winding up of the affairs of the company and th(? distribution of its assets. A liqui- dator may fix a day within which creditors of the com- pany must send in their claims; at the end of that time he ?s at liberty to distribute the ass* ts of the company. The property or business of the company may be s
made by the liquidators from all persons who are con- tributors. No liquidator can purchase any part of a stock-in-trade or debts from assets of the estate. He nmst keep the moneys received by him in a separate account, and is subject to the summary jurisdiction of the Court in the same manner as the ordinary ofTicers of the Court are subject to its jurisdiction. Liquidators have a right to apply to the Court to determine anv question arising in the matter of the winding up. The Court may assess damages against any manager, otTicer or director guilty of misfeasance or malfeasance. Any party who is dissatisfied with any order of the Court may appeal to the Court of Appeal. All County Courts are auxiliary to one another, and matters may be trans- ferred from one County Court to another so as to secure K D. — 20 401 Liquida- tor!. Contribu- tories. 4oa Riijlifs of PermiiH [PAUT I M the windinjr up of llic coniimny. Ah hooii ns the {iffnirs of tlu' coiiipiiny are fully wound up the Iiquidatal<'nl; this Act also i'xtcnds to all corporalions f«n' jiny of the piirjtoHcH or objects to which the h^islaliv*^ authority of the I'arlianicnt of Canada ^'xlcnds, except railway conii>anicH, banks and insurance companies. Provision has also been made by the Dominion I*ar- winding' liainent for the winding up of incorporated banks/|'['|"|'jj||'|j savings banks, incorporated insui-ance companies, lui^lii- . ,, ,. , til 111. loan comiianies, buildinij; societies, and in<(»ri»orated I' s f tradinfj; companies doin^ business in Canada. Kail ^.' jj;, " way or tele}j:raph companies or biiildinj; societies which have not a cajjital stock are excluded from these pi'ovisions. In ord<'r to come within the operation of the Act the companies must be insolvent or in li(]uida- tion, or in j»ro<-ess of bein^j wound u|>, and on petition by any sharehobler or creditor, assijj:nee or liquidator, ask- iiiji; to be brouf^ht under the ju'ovisions of the Act. A oomjtany is deemed insolvent («i) If it is unablo to pay . its debts as they become due. (/>) If it calls a nuetinf; of its ci'editors for the purjmse of comjjoundin}; with them. ((') If it exhibits a statement showinjj: its inability to moot its liabilities, (d) If it has otherwise acknowledjjed itself to be insolvent. {<•) If it assi};;ns, removes or dis- poses of, or attempts, or is about to assijjn, remove v>r dispose of any of its ])roi)erty with intent to defraud, defeat or delay its creditors or any of them, (f) If with such intent it has procured its money, j^oods, chattels, lands or property to be seized, levied on, or taken under or by any process or execution. (any \h indebted in a Hum exceedinj? ^2(M>, then due^ liaH served on tlie company a demand in writing; r<'any is sit :ited; or if there is no head ofTlce in Canada, then in the province where its ch'ef place or one of its chief places of business is situated, for a windinp up order. The Court may nmke such in- quiry as it considers necessary, and may have the af- fairs of the company investigated before making; a winding up order. If a windiuji; up order is made the company ceases to carry on business except as reqtiired for the beneficial windinjj up of the company. When the order is made, no further proceedings can be taken against the com])any, except with the leave of the Court. Proceedings may be stayed in the winding up matter by the application of any creditor or contributory. The Court must have regard to the wishes of the creditors, contributories, shareholders or members, as proved to it by any sufTicient evidence; if necessary, meetings must be held to ascertain the wishes of these persons; in the case of creditors, regard must be had to tlu; amount of the debt due to each creditor. In making a winding up order the Court may appoint a liquidator, or more than one liquidator. No liquidator can be appointed unless previous notice is given to all concerned as prescribed by the Court. An incorporated company may be appointed liquidator, and may act through any one of its officers designated by the Court. All matters relating to the li- quidator, his salary, his duties and remuneration, are pro- vided for by the Court. His powers are: that with the approval of the Court he may enter suit, carry on the CHAP. I, § 4] Corporotioiin and Compdtilfs. 4nr) buHlncHs of 11i(» roinjHUiy ho far ns is lUMM'ssnry to its bciu'llcijil wiinliiij,' up, Kcll tlu' in'oprrty. iuu\ pMu-rally company ami distrihiitiii^ its assrln. Tlw ]i(jni(lator lias the power of »'otn|M'oiiiisinj^ all debts due lo tlie coni- ]»anv, lake any serurlty for llic dis8- «ible after the cnmmeneemenf of a windinf^ up of the company a list of (ontributories is settled. Contribu- tories are persons who are liable to contribute to tho pajnu'ut of the debts of the comj)any. Calls may be made by the (^ourt, but no call can «'ompel jiayment of ji debt before its nmturity, or in any way increase the t'xtent of the liability of any contributory. If thei-e is reasonable cause for believinf? that any cresent oflicer of the company, is about to quit Canada, or otherwise abscond, the Court may make «n order for his arrest. Persons entitled to vote at meet- injjfs of the company, whether contributories or creditors, shareholders or members, may Aote for any person or may fjive a written proxy. All debts may be proved against the company, no matter whether present or future, certain or contingent; an estimate is made of the value of debts or claims subject to continjjency, or scundinf? only in damajjes. (.'lerks and employees are entitled to a special claim for wajifes for arrears not exceeding three months before the date of the order. The property of the comj)any is api)lied in satisfac- tion of its liabilities, and the charges incurred in winding up its atfairs. Any projx'rty or estate re- maining must be distributed among the members and shareholders according to their rights and in- terests in the company. A day may b(? fixed by the Court within which creditors must send in tin ir claims. Tlie liquidator is not liable to any j)erHon of whose claim he had not notice at the time of the distri- bution of the assets. Creditors may be compromised with by the liquidator; those with securities must value Conti'iliii- toritis. 406 Rights of Persona [part r these Gecuritios; if the security is a mortgage on real property or a ship, then the property can only be as- signed and delivered to the creditor subject to all pre- vious claims and upon his securing the estate of the com- l)any against such previous claims. No lien or privilege can be granted for the amount of any judgment debt op interest by the issue or delivery to the sheriff of any writ of execution or any garnishee order; the only credi- tor's lien which may be privileged is one for costs, which the plaintiff may possess under the law of the province Gratuitous in which his writ was issued. All gratuitous contracts or conveyancefct, or contracts without consideration, or with a nominal consideration, respecting either real or personal property made by a c impany in respect to which a winding up order is made within three months next preceding the commencement of the winding up, or at any time afterwards, are void. All contracts by which creditors are injured, obstructed or delayed, made by a company unable to meet its engagements, and in respect to which a winding up order is made with a pi^rson knowing the inability, or having probable cause for be- lieving the inability to exist, or after the inability is public and notorious, 'vhether the person is its credi- tor or not, is presumed! to be made with intent to de- fraud creditors. A contract or conveyance for considera- tion by which creditors are injured or obstructed made by a company unable to meet its engagements with a person ignorant of the inability and before the inability has become public and notorious, but within thirty uays before the commencement of the winding up proceettings, or at any time afterwards, isi voidable; it may be set aside upon such terms as the Court order? as to the protection of a person taking it, or actual loss or liability by reason of the contract. All contracts by a company with intent fraudulently to impede, obstruct or delay its creditors made with the know- ledge of the person contracting with the company, and which have the effect of impeding, obstructing or delaying creditors, are null and void. All securi- ties given by the company for i>ayment whereby any creditor obtains an unjust preference are void. Every Fraudu- lent pre- ferences. CHAP. I, § 4] Corporations avd Companies. 407 pcnyment made within thirty days next before the commen<'enu'nt of the winding up by a company unable to meet its enga|?ements in full to a person who knows of the inability, or has probable cause for believing the inabiliay to exist, is void. If any valuable security is given in consideration for the payment, the security, or its value, must be restored to the creditor upon the re- turn of the payment. When a debt due or owing by the company has been transferred to a contributory who knows, or has probable cause for believing, the company to be unable to meet its engagement, or in contempla- tion of the company's insolvency, for the purpose of enabling the contributory to set otf by way of compen- sation or set off the debt so transferred, the transaction is void. Appeals are allowed from the order of a Judge to the Court of Appeal for Ontario if the question to be raised on the appeal involves future rights, or if the order or decision is likely to affect other cases of a similar nature in the winding up proceedings, or if the amount involved exceeds $500. An appeal lies further to the Supreme Court of Canada by leave of a Judge of that Court from the judgment of the Court of Appeal for Ontario if the amount involved in the appeal exceeds |2,000. When a winding up order is made, if it appears in the course of the proceedings that any past or present director or officer of the company is guilty of any offence in relation to the company for which h(? is criminally liable, the liquidator may be directed to pro- secute the offender. Special provisions are made with regard to banks; in the case of a bank the ai)plication for a winding up order must be made by a creditor for a Winding sum of not less than $1,000; and the Court must, before b,u[k8. making the order, direct a meeting to be Ik Id of the shareholders of the bank and of the creditors of the bank. The chairman of such meeting reports the result to the Court, and if a winding up order is made the Court must appoint one or not more than three liquida- tors. The liquidators must ascertain as marly as pos- sible the amount of notes of the bank actually outstand- ing, and must reserve until two years after the date? of the winding up order, or until the^ last dividend, divi- 408 Ri(jht8 of Persons [part 1 dends on such part of this amount in respect of which claims have not been filed. Insolrent ^^ insurance company is liable to be dealt with as insurance » •/ ^ oompaaiea. if it were insolvent whenever its license has expired or been withdrawn under the Insurance Act, and Itas not been renewed within thirty days. Upon the making of a winding up order, the policy holders in Canada are entitled to claim for the full net valuation of their poli- cies at the time of the winding up order, including bonuses and profits. A deduction is made for any amount advanced by the company on the security of tlie policy; the claims then rank with judgments obtained and claims matured on Canadian policies in the dis- tribution of the assets. Policies may be valued by the superintendent of insurance and a general statement compiled by the liquidator, showing the position of the company. The securities held by the Minister of Fi- nance, and the assets held by the trustees provided in the Insurance Act, are then sold or realized as the Court directs; the proceeds after payment of expenses and re-insuring policies, if that course be adopted, are distributed pro rata amongst the claimants as appearing on the liquidator's statement. The claimants on life in- surance policies accruing after the date of the winding up order, and before the expiration of thirty days after the filing of the final statement by the liquidator in the Canada Gazette, are entitled to claim as creditors for the full net amount of their claim. If before the ex- piration of the thirty days the holder of a current policy signifies a willingness to accept an insurance in some other company for the amount which can be secured by the dividend on his claim, then the liquidator may effect for that person an insurance in another company, and may apply the dividend on his claim to that pur- pose, but such an insurance can be effected only as part of a general scheme for the assumption by some other company of the whole or part of the outstanding risks of the insolvent company. Companies doing an insur- ance business other than a life insurance business are deemed insolvent upon their failure to pay any un- disputed claim arising or loss insured against in CHAP. I, § 4] Corporations and Coinpanies. 409 Canada upon any policy bold in Canada, for the space of sixty days after it became due; or, if disputed, after linal judgment and tender of a legal valid discharge; in either case a notice is required to the Minister of Finance. If a claim for loss is by the terms of the policy payable on proof of the loss without an^' stipu- lated delay, a notice to the Minister of Finance cannot bo given until after the lapse of sixt^' days from the time \v!ien the claim comes due. Any deposit held by the Minister of Finance for policy holders must be applied pro rata towards the payment of all claims duly au- thenticated against the company upon policies issued to policy holders in Canada. Holders of current policies are entitled to claim as creditors for a part of the i>re- muim paid proportioned to the period of their policies unexpired at the date of the winding up order; this returned or unearned premium ranks with judgments, and with claims accrued in the distribution of the assets. In the same way as with life insurance policies, claims accruing after the date of the winding up order and be- •fore thirty days after the filing of the liquidator's final statement, are entitled to claim for the full net amount of their claim. Arrangements may be made for the re- insurance of risks in the same way as in the case of life policies. The Banking Act applies to every bank incorpo- incorpora- rated after the first of January, 1890, as well as to thirty- {^;'^^°[ six banks specially mentioned in the schedule to the Act; these banks being in existence at the time of c. ai. the passing of the Act. As to banks incorporated after the date just mentioned, their capital stock must be not less than $500,000, to be divided into shares of $100 each. The number of provisional directors must be not less than five nor more than ten. For the purpose of organizing the bank, provisional directors may cause stock books to be opened, after giving public notice. As soon as not less than $500,000 stock has been bona fide subscribed, and a sum not less than $250,0()0 been paid to the Minister of Finance and Receiver-General, provisional directors may call a meeting of the sub- scribers to the stock; at this meeting directors are elected, who must be not less than five nor more than 410 Rights of Persons [PAUT r Directors. ton; upon the election of these directors the functions of the provisionfil directors cease. The bank cannot issue notes or commence the business of banldn;? until it has obtained from the treasury board a certificate permitting it to do so. No certificate can be given until all the requirements of the Banking Act and of the special Act of incorporation of the bank have been com- plied with. It must be issued within one year from the passing of the special Act. If the certificate is not obtained within the year, the Act of incorporation lapses. Upon the issue of the certificate the Minister of Finance repays the deposit of $250,000, less a per- centage e(]ual to two and a half per cent, of the average amount of its notes in circulation during any time it has been in operation. If no certificate is issued, the whole amount deposited is returned. The management of the bank is regulated by the shareholders, who pass by-laws as to its administration. The stock, property, affairs and concerns of the bank are managed by directors, to be elected anndall.y, and who are eligible for re-election; directors must liold capital stock of the bank as follows : When the paid-up capital stock is |1,000,000 or less, each director must hold stock on which not less than $.'{,000 has been paid up; when the paid-up capital stock is over |1,000,000 and does not exceed $8,000,000, each director must hold stock on which not less than $4,000 has been paid up; when the paid-up capital stock exceeds $;{,000,000, each director must hold stock on which not less than $5,000 has been paid up. A majority of the directors must be natural born or nat- uralized subjects of Her Majesty. Directors in office remain in office until a new election is held, if from any cause any annual election fails to be held. The directors, or not less than twenty-five of the shareholders, may at any time call a special general meeting of the shareholders, upon giving six weeks' notice, specifying the object of the meeting. Share- holders on all occasions at which the votes of shareholders are taken have one vote for each share CHAP, I, § 4] Coi'porations and Companies. 411 held at least thirty days before the time of meeting ; in all cases when votes are taken the voting is by bal- lot, and proxies are allowed. All calls must be paid; paid-up capital stock may be either increased or reduced by by-law of the shareholders, subject to the ratitication of the treasury board. liank shares are personal Bank estate, and are assignable and transferable in such form*""''^* as the directors prescribe. The shares are payable in instalments; any subscription for any share may be cancelled unless ten per cent, at least on the amount subscribed for is annually paid not later than thirty days after the time of subscription. The directors nuiy make calls on shares at intervals of not less than thirty days, with thirty days' notice; no call can exceed ten per cent, of the amount of the share; shares may be forfeited for non-i)ayment of calls and sold by the directors. All assignments or transfers of shares must be made and registered, and accepted in transfer books kept by the bank. The person transferring the stock may also be required by the bank to discharge all his debts or liabilities to the bank, exceeding the amount of the stock retained by him, if any. All transfers of shares are null and void, unless the person who nuikes the transfer, or in whose name or on whose behalf it is made, is at the time the registered owner in the books of the bank of the shares, or has the registered owner's assent to the sale. The remedies of a purchaser not having knowledge of the defect, as well as his rights under the contract of sale in such case, are not affected. If a bank stock has been sold under ex- ecution, the otlicer by whom the writ was executed certifies to the bank to whom the sale was made; the transfer is then executed to the purchaser ; transmission of shares otherwise than by transfer, for instance, death, bankruptcy or insolvency of any share- holder, or in consequence of the marriag<' of a female {shareholder, must be proved as the directors may require; and until proved no person is entitled to par- ticipate in the profits of the bank or to vote on the shares. If the transmission has taken plac^ by virtue of any will, or by intestacy,, the probate of the will or 412 Rights of Persons [part I Trustees holding bank shares. letters of administration must be produced. The bank- is not bound to see to the execution of any trust to which any share is subject; the receipt of tlie person in whose name the share stands in the boolcs of the banlc is a sufficient discharge to the banlc for any divi- dend or any other sum of money, unless express notice to the contrary has been given to the bank. Persons holding stock in a fiduciary possession are not liable as shareholders, but the estate and funds in their hands are liable in the same way as the persons owning the estate would be if competent to hold themselves. Dividends may be declared by the directors, and may be paid after thirty days' notice. No dividend or bonus can be declared so as to impair the paid-up capital; if a J or made payable with this result, the directors t " r ly and wilfully concurring are jointly and sev- erally liable for the amount as a debt due by them to tke bank. No division of profits in any way exceeding the rate Oi cij-ht per cent, per annum can be made by a bank, unless after making the division it has a rest or reserve fund equal to at least thirty per cent, of its paid-up capital, and all bad and doubtful debts must be deducted before the amount of the rest is calculated. A bank must hold not less than forty per cent, of its cash reserve in Dominion notes; it may issue its own notes, payable to bearer on demand and intended for circulation, but these notes cannot be for less than $5, and the total amount of notes in circulation at any one time cannot exceed the amount of the unimpaired paid- up capital of the bank. A bank cannot pledge, assign, or hypothecate its notes; no advance or loan made on the security of the notes of a bank is recoverable from Notes a the bank or its assets. Notes issued are the first charge first charge on assets, upon the assets of a bank in case of its insolvency. The payment of anj' amount due to the Government of Canada is the second charge; the payment of any amount due to any of the provinces is the third charge. Banks are required to pay to the Minister of Finance annually a deposit equal to five per cent, of the average amount of notes in circulation during the preceding twelve months; the amounts paid in this way form the bank circulation redemption fund; this fund is held Reserve. CHAP. I, § 4] Corporations aaid ComjMmes. 413^ for the purpose of paying notes issued by the banlc and intended for circulation and then in circulation. If a bank suspends payment its notes bear interest at the rate of six per cent, from the day of the suspension to such day as is named for payment by the liquidator. Bills or notes of the bank, signed by some ollicer of the bank appointed by the directors to sign them, promis ing the payment of money to any person or his order, or to the bearer, though not under the corporate seal of the bank, are as binding on it as if issued by any private person in his private capacity. Signatures may be made by machinery, but one signature on each bill or note must be in the actual handwriting of the person authorized to sign it. The busiress which may be transacted by a bank is as follows, besides ordinary banking business: (1) It may deal in gold and silver coin and bullion. n„si,ie8a (2) It may deal in, discount and lend money, and make"'*"'^^ advances upon the security of, and may take as collat- ci( lio by eral security for any loan made by it, bills of exchange, '^" "" promissory notes and other negotiable securities, or the stocks, bonds, debentures and obligations of municipal and other corporations, whether secured by mortgage or otherwise; or Dominion, Provincial, British, foreign and other public securities; but it cannot either directly or indirectly deal in the buying or selling or bartering of goods, wares and merchandise, or engage or be engaged in any trade or business whatever; it must not either directly or indirectly purchase or deal in, or lend money, or make advances upon the security or pledge of any share of its own capital stock or of the capital stock of any bank ; it must not either directly or indirectly lend money or make advance upon the secur- ity, mortgage or hypothecation of any land, tenements or immovable property, or upon any ships or other ves- sels, or upon the security of any goods, wares and mer- chandise. All securities acquired by the bank may in case of default be dealt with, sold or conveyed in the same way as by private individual. A bank may take, hold and dispose of mortgages upon real or personal ' 414 livihta of Persona [I'AUT I property by way of additional security for debts con- tracted to the bank in tlie course of its business. A banli may purchase hinds oft'ered for sale under execu- tion as belonpinp to any debtor of tlie banlv, or olfered for sale by a mortpapee or other encumbrancer liavins; priority over a mortffajje or other encumbrance held by the bank, where, under similar circumstances, an individual could buy. A bank may acquire and hold an absolute title to any real property mort}j:ased to it as security for a debt, either by obtaining a release of the equity of redemption, or by i)rocurinp; a fore- closure, or by any other means whereby, as between individuals, an equity of redemption can by law be barrod; but no bank can hold a.iy real property, how- soever acquired, except what it needs for its own use. for longer than seven years. Every bank may advance money in aid of the building of any ship or vessel, and for this purpose may have the same right of taking security upon the ship or vessel, while building, as private persons. A bank may make advances upon warehouse receipts and bills of lading, but these securities are dealt with in another place, so I need not describe them here. A bank may stipulate for, take, reserve or exact any rate of interest or discount not exceeding seven per cent, per annum; no higher rate of interest can be recoverable by the bank. The bank may allow any rate of interest whatever upon money deposited with it. No instrument, discounted or otherwise, held by the bank is held to be void on the ground of usury as regards the bank, but the bank cannot recover a higher rate of interest than seven per cent, per annum; in addition to discount, banks may recover collection fees at certain rates; the bank is entitled to receive deposits from any person and to allow interest. In case of the insolvency of a bank, each shareholder is liable for the deficiency to an amount equal to the par value of the shares held by him in addition to any amount not paid up on his shares. The liability of a bank to repay money depo- No Statute sited with it and to pay dividends continues, notwith- t/ons.™''*' standing any statute of limitations, or any law relating Interest. CHAP. I, § 4] Corporations and Companies. 415 )ank, o an d by h\8 depo- with- itinp to pi'cscnption; if a bank snsponds payment for ninety days consecntively, or at intervalH within twelve een- seeutiv<' niontlis it IxMonies insolvent and fcn'feits its eharter or aet of incorporation, ho far as rej^ards any further bankinj? oi)erations. If any suspension of ])ay- ment in full ecmtinues for three months after the ex- piration of the time ne<'essarv to constitute a bank in- T"^"'' solvent, and no proceedinjjs are taken for the winding up of the bank, the directors must make calls on the sliare- holders for the amount necessary to i)ay all th** debts and liabilities of the bank without waiting for the col- lection of dei)ts due. Persons who have been sliare- hold<>rs of the bank and have transferred their sliares or registered the transfer of their shares within sixty days before the commencement of tlie siispi nsion of i>ay- ment, and all persons whose subscriptions to stock in the bank have been cancelled within sixty days before the commencement of the suspension of payment by tl>e bank, are liable as if they had held their shares at the time of the suspension. Every person who (commits an offence against the provisions of the Banking Act is liable to a fine not exceeding $1,000, or to imprisonment for a term not exceeding five years, or to both, in the discretion of the Court before which the conviction is lield. Remembering that there is double legislation re- lating to insurance companies, we will just consider the provincial legislation regarding them, and then glance at the Dominion laws on the subject. Insurance companies, then, by the provisions of the Ontario statutes, may be incorporated in various ways: first, by letters patent; second, on the mutual plan. 1. By letters patent. A charter may be issued to any number of persons not less than five. If the com- pany is a fire, or fire and marine, or accident or life, or life and accident, or guarantee or surety com- pany, the capital stock must be not less than $500,000, with liberty to increase it to $1,000,000 with the assent of the Lieutenant-Governor in Council. Before applying for license the company must have at least $300,000 sub- InHunmco. Provincial incorpora- tion. R. H. O. c. 1(>7. 1. Letters Patent. ■ 416 liujhtH of Persons [I'AUT I scribed for nnd tnkcn up bona fide, and 1^30,000 paid into Kome cliartored banlc. If tlie company in a live stoclj inHUi-an<(> company it must liave at least $.'U)0,()()0 of stoclv, witli liberty to increase to 1^500,000; f 150,000 must be shown to have been subscribed, and fil 5,000 to have been paid into some chartered bank. If the com- pany is a plate p;lass insurance company, or a company insuring a^^aiust the explosion of steam boilers, the stock must be at least ^100,000, with liberty to increase to $250,000; {JKH^HM) must be shown to have been sub- scribed, and $(5,000 paid into some chartered bank. The corporate powers of any of the above companies are forfeited by non-user during three years after date of incorporation. If a company has undertaken con- tracts and discontinues business for one year, or if its license remains suspended for one year, or if its license is cancelled otherwise than by mere effluxion of time, and is not renewed within sixty days after notice to the I'rovincial Treasurer of the company's failure, there- upon the company's corporate powers cease and deter- mine except for the sole purpose of winding up its affairs. Upon petition of the Attorney-General or any person interested the High Court may appoint a re- ceiver and w-id up the company. 2 Mutual '^' Companies may also be formed for mutual insur- insurance ance, which means insurance given in consideration of companies. ^ ppg^iium note or undertaking with op without an im- mediate cash payment thereon. A cash-mutual company is a company organized to transact mutual insurance,, but empowered to undertake contracts of insurance on both the cash plan and the premium note or mutual plan. Both of these companies are formed as follows : Ten freeholders in any municipality may call a meet- ing of the freeholders to consult whether it is expedient to establish a fire insurance company upon either the mutual or cash-mutual principle. If thirty freeholders of the municipality are present at the meeting, and the majority of them determine that it is expedient to estab- lish a mutual or cash-mutual insurance company they proceed as follows: RT 1 CIIAI'. I, § 4] (Jorpornfionfi ami ('ornpaniffi. 417 Into Lock A) of l,0(M) lO to com- pany , the rease sub- ■ ianie» date [ con- if Its icense time, to the there- deter- up its or any a re- insur- tion of an im- mpany urance,. 3uranee mutual allows : a meet- pedient her the holders and the o estab- ny they Three porHons are named to open and keep a sub- R(Tiption book in which owners of property, movable or immovable, within the Provinre of Ontario may sipn their names juid enter the sums for which thev bind themselv<*8 to effect insurance with the comjumy. When fifty or more ])ersons, being owners of movable or im- movable property in the Province of Ontario, have signed their names in the subscription book and bound them- selves to effect insurance in the comi»any, whicli in the aggregate amount to$l(MMM)0, a meeting of the company is called. At this meeting the name and style of the company are adopted, a secretary appointed and a board of directors elected. A place is also named at which the head flee of the comj)any is located. At least twenty-five of tlie subscribers muHt be present at this meeting. Copties of the resolutions must then be filed in the registry office; when so filed, the subscribers and all other ]»ersons effecting insurance in tlie com- pany then become members, and tlie company becomes a body corporate under the name adopted. The <'orpo- rate powers arc forfeited by non-user or by discontinu- ance of business, or susjjension or cancellation of license, as in the case of joint stock companies by letters patent. A president and vice-president are next appointed from among the directors who were chosen at the first meet- ing; a secretary-treasurer or manager of the company is appointed. The com[>any is ready for business on receiv- ing from the Treasurer of the Province a license setting forth that the company has complied with the require- numts of the law; this license operates for a term of twelve months, and may be renewed from time to time. Any mutual or cash-mutual fire insurance company may raise a guarantee capital of any sum not less than Guarantee 120,000 nor exceeding |200,000, which belongs to the 'capital- company, and is liable for all the losses, tic his and ex- penses of the company. It must be subscribed by not less than ten persons, and no one person can subscribe for more than twenty per cent, of the guaranteed capital stock. The subscribers have, each of them, such rights as are declared by by-law. Any mutual or K.B.— 27 418 Inmiranco en tho wholly caHli (irin- ciple. RltjIifH of Persons [part I Mutual insurance company becoming stock com- pany. ruBh-iniitiial tin' insurance company may raise a share or stoclk capital of not less than 91(MI,(MMK and may inereaHc tliis amount to a sum not exceedint? 95(H),()0(). HluircH are personal estate and transferable, but trans- fers must be entered on the boolcs of the company, and are subject to similar liabilities as shares in other joint stock companies; after f 100,000 of this stock or share capital has been bona flde subscribed and twenty per cent, paid in, the comp' • may make insurance for premiums payable wholly cash. No insurance on the wholly cash principle makes the insured a member of the company or liable to contribute in any way beyond the cash premium agreed ti])on, or jjive any right to a participation in the profits or surplus funds of the company. A license must be i)rocured from the Provincial Treasurer to enable a mutual or cash- mutual fire insurance company to do tliis class of insur- ance business. The net annual profits and gains of the company are applied in tlie first place to pay a dividend on the share capital not exceeding ten per cent, per annum ; the surplus, if any, must be applied as provided by the by-laws of the company. After the sharf apital has been subscribed at least two-thirds of the ctors must be holders of sliares of tlie new stock to tue ^^ount of f 3,000, on which all calls have been fully paid up; the other third must be members of the company and insured in it to the amount of $800 at least. Any mutual or cash-mutual fire insurance company having surplus assets aside from premium notes or undertakings suflB- cient to re-insure all its outstanding risks after notice and with the consent of two-thirds of the members who are present at any annual meeting and of two-thirds of the subscribers of guaranteed capital or share or stock capital, may become a stock company. All companies must deposit with the Government a certain amount of security. When a company makes a deposit it may withdraw it with the sanction of the Lieutenant-Gover- nor in Council whenever it appears that the company is carrying on its business under license from the Do- minion of Canada. If, from the annual statement, or on examination into the affairs of the company, it ap- pears that the re-insurance value of all its risks out- CHAP. I, § 4] (Jorponitionn and Companies. ■iV,\ Htijndinp: in Ontario, top'thci* with any (tllicr liiil»ilili»'M in Ontario, t'XciM'ds its assctH in tlu* province, includinj; th«' deposit in tlie handH of tlie treaMurcr. tlien the eom- pnny nniMt make good tlie deficiency at once or forfeit its license. Wliere a company fails to nialve the necos- Cixmilirt. sary dei)08it, or wlieie written notit'e is served on tlie iic»ii^,.. Provincial Treasurer, of an undisp\ited claim arisinj^ from losses insured ji;:ninst in Ontario renuiinin.Lr un- paid for the spa«'e of sixty days after bein^; diu>, or of a disputr'd claim after final judp;ment in a re^jular course of law, and lender of a legal valid discharge being unpaid, so that the amount of securities representing de- posits of the cev.|.any Im lialde lo be reduced by sale of any part, then the license of the company is ipso faxto null and void and is deemed to be cancelled. It may be renewed, and the company may again transact business if, within sixty days, the deficiency is made good. The deposit is liable to be applied in paying the claims of the company at any time after a period of sixty days. A receiver is appointed by the Court, who calls upon the company to furnish a statement of its outstanding contracts and upon all claimants to file their claims. The securities deposited with the Treasurer cover only contracts undertaking or effecting for valuable consider- ation any contract, indemnity, guarantee, suretyship, insurance, endowment, tontine or annuity on life or any like contract which accrues payable on or after the occurrence of some contingent event. The deposit further applies to contracts having for their object some property in the province or property in transit to or from the province, or the life, safety, health, fidelity or insur- able interest of some resident of the province, or when»^ the contract itself makes the payment under it prima- rily payable to some resident of the province. Deposits may be released by satisfying the Treasurer of the Pro- vince that all liabilities of the company have either been discharged or re-insured. As has been stated, no com- pany can do insurance business without obtaining a ^"'*'"®^' license from the Provincial Treasurer. Except com- panies licensed by the Treasurer, and except companies licensed by the Dominion of Canada, no company ran 420 Rights of Persons [part I General restric- tions. Statutcry cnnditioiis of insur- Aiice. undertake, or effect, or solicit, or agree, or offer to undertake or effect any contract of insurance as above explained in Ontario. The general routine of manage- ment of an insurance company is similar to that of other joint stock companies. Special returns are required from the various kinds of insurance companies. Con- tracts of fire insurance cannot in any case exceed three years. The insurance of mercantile and manufacturing risks, if on the cash system, can only be for terms nut exceeding one year. Policies may, however, be renewed at the discretion of the board of directors by renewal receipts instead of policies. Minimum rates are pro- vided for. If notification is received by a company from a person already insured of a further insurance, this additional insurance is deemed to be assented to unless the company within two weeks of receipt of the notice signify in writing their dissent. It is optional with directors to pa.y claims which are otherwise void on the grounds of change of risk, change of property, prior or subsequent insurance, or want of assent to further in- surance. For the general benefit of insured and insurer th(' Legislature has declared statutory conditions; these conditions as against insurers are deemed to be part of ever}' fire insurance contract, if a company or other insurer desires to vary these conditions, then the vari- ations must appear printed in conspicuous type and in ink of ditrerent colour upon the policy; unless this condition is complied with the variations are not binding. If, by reason of necessity, accident or mis- take, the conditions of any contract of fire insurance on property in Ontario as to the proof to be given after a fire cannot be strictly complied with, the Court, if it con- siders it inequitable that the insurance should be deemed void or forfeited, may disallow any objection to the payment of the policy on that ground. The same lati- tude is also allowed where, after a statement or proof of loss has been given in good faith by the assured, and the company objects to the loss upon other grounds than for imperfect compliance with its own conditions, or do not within a reasonable time notify the insured in writing of their objection. A justice of the peace may CHAP. I, § 4] Corporations and Companies. 421 examine on oath any person who comes before liini to give evidence touching any loss by Are. A mutual or cash-mutual fire insurance company may accept pre- i*'^mi«ni mium notes or the undertaking of the assured for insur- ances, and may undertake contracts in consideration of these notes. They are to be assessed for the losses and expenses of the company. The directors may demand in cash a part or first payment of the premium or pre- mium note at the time that the insurance is made; this first payment is credited on the i>remium note, but not more than fifty per cent, can be demanded in cash at the time of the application or of the effecting the insurance. All premium notes or undertakings are assessed at such intervals for such sums as the directors think necessary for losses, expenses and reserves. These assessments ara payable within thirty days after notice; if not paid, the contract of insurance is null and void. It may be re- vived by subsequent payment unless the secretary gives notice to the contrary. Members who fail or neglect for thirty days after notice to pay their assessments may be sued, company, and tors may levy an annual assessment not exceeding ten per cent.; forty days after the expiration of the term of insurance the premium note or under- taking given for the insurance must be given up to its maker if all losses and exi)enses with which the note is chargeable have been paid up. No premium note or undertaking can create a lien upon lands on which the insured property is situate. No execution can issue against a nidtual or cash-mutual company upon a judg- ment until after the expiration of sixty days from its recovery. Insurance comi)anies are inspected by u pro- inspection vincial officer called the Inspector of Insurance, who is I'f. '"*'"V.. subject to the instructions of the Treasurer of Ontario. i>;inie8. If a company proposes to go into voluntary liquidation, at least one month's notice in advance must be givi-n to the Treasurer and to the inspector, and is also published in the Ontario Gazette and one other newspaper. The di- rectors of a mutual or cash-mutual fire insurance com- pany may re-insure out of the reserve fund, if it is to be A reserve fund may be formed by the ]it"<«'rve for that purpose a board of direc- Mi 422 RifjldH of Persons [part I i! Rcffistra- tion of iiisuranco coiniwuiioK 55 Vict. 0. ;«t. Friendly Society. wound up, the unexpired contracts for whicli preniiunm or premium notes have been talien. Wlien a company is wound up, each person contracted with on the cash plan is entith^d to a refund from tlie company of the unearned proportion of the cash premium. IJesides the requirements above described, relaling to tlie formation of life insurance companies, the Legis- lature of Ontario has further declared that no life in- ^iurallce can be efl'eded within the province 'xc<'pt by a duly registered corporation. For purposes of this regis- tration two registers are kept. One is called Ihe Insur- ance License Kegister, and is kept by the inspector of insurance. The other register is called the Friendly Society Kegister, and is kept by the -egistrar of friendly societies. The same official at present keeps both registers. A friendly society includes any association which undertakes or etfects for valuable consideration, or agrees or offers to undertake or effect with any person in the province, any contract of insurance. There are certain associations not entitled to register as friendly societies. (l)i Any corporation licensed or required by law lo be licensed for the transaction of business as an insurance corporation. (2) Any coqwration distribut- ing charity or gratuities only. In any case of doubt whether the bona fide intention of a society is to afford charitable aid or relief, and not to create either any contractual right in the members or any contractual obligation against the society, upon the society making such intention apparent in its rules and publications, the registrar may declare the organization exempt from the operation of this Act. (3) Any corporation under- taking insurance other than contracts of insurance nuide inclusively wilh its own members against sickness, ac- cident, disability, infirmity or old age, or for mortuary or funeral benefits, or for the fidelity of members as financial officers of the society or any branch or lodge thereof, or for a sum or for collective sums not exceed- ing $3,000 in all, payable at the death of the assured. (4) Proprietary or trading societies, or societies having under fifty members, or those conducted as a mercantile CHAP. I, § 4] Corporations and Companies. 423 iic- 01* trading venture, or the insurance funds of which are held other than as trust funds for tlie members. All of these four species of associations must be registered and licensed for the transaction of business. Insurance corporations licensed under the provin- cial legislation I have previously described, are entitled to be registered by virtue of their license. Insurance licensees of the Dominion of Canada, upon proof of theii- license subsisting, may be registered on the Ontario In surance License Register. Friendly societies incorporated under the Benevo- lent Societies Act of Ontario, when their declaration declares insurance, or contracts in the nature thereof, as among the purposes of the society, are entitled to registration as a friendly society. No such friendly society is deemed to be managed and operated according to the true intent of the Act respecting Benevolent, Provident and other Societies, unless the persons in- sured in or by the society exercise, either directly or through representatives elected for a term not exceed ing three years, effective control over the insurance funds of the society; and no corporation whatsoever, wherein the persons, who by virtue of their offict? have the disposition, control, or possession of the insurance funds hold such oflBce for life, are eligible for registry as a friendly society. Registration must be renewed from year to year. No friendly society is required to make any cash deposit with the province. The result of this legislation is that no person or persons, or company or corporation can effect insurance in Ontario except those registered. Stringent rules are prescribed further as to the books to be kept and the audit to be made l)y and for the re- gistered companies. The object of the Legislature is to secure as far as possible the solvency of companies which undertake insurance. Every insurance corponition is liable to have its registry suspended by the registry officer upon its failure to pay an undisputed claim, on an insurance con- tract for the si)ace of sixty days after being legally pay- able, or if disputed, after final judgment and tender of I'.ciievo- l<-iit iiiid frii-ndly sncifti«8. < )tily rcgis- tcrt'd cor- p iratirtns can in- sure. K^'gistry .■ !iow ck'ciiled. Insurer's riglit (if Hiitry after loss. Duty of assured il m 426 Rights of Persons [PAUT I Fractional part of year. hrror in (fi) \Miere the age of a person is material to any in- ag«) not to ^ ' * ^ , V . • I • avoid con- 8urance contract, and such age is given erroneously in i™n*ji^jQ*any statement or warranty made for purposes of the abate. contract, such contract shall not be avoided by reason only of the age being other than as stated or warranted, if it appears that such statement or warranty was made in good faith and without any Intention to deceive; but the i)erson entitled to recover on such contract is not entitled to recover more than an amount which bears the same ratio to the sum that that person would other- wise be entitled to recover as the premium proper to the stated age of such person bears to the premium proper to the actual age of such person — the said stated age and the actual age being both taken as at the date of the contract, but in no case shall the amount receivable exceed the amount stated or indicated in the contract. (7) If the error in age includes a fractional part of a year exceeding a half year, such fractional part is computed as a whole year, but if the fractional part does not exceed a half year it is wholly disregarded in the computation. Where ajre (8) When, by the terms and for the purposes of the gr^^tgj"** contract, the age of the person in respect of whose age than the contract is made is taken to be greater than the known ago actual age of such person, the number of years added to such age shall, for purposes of the calculation provided for by this section, be added to the true age of such per- son. By the same Act which provides for the registra- tion of insurance companies, regulations are also made with regard to insuring the lives of children. In too many cases child insurance means child murder, and if it were possible for the Legislature to prohibit it entirely, I venture to think that society would not be the loser. I may mention further that in the case of fore'f ** -^ fi'it'ndly societies no forfeiture or suspension is incurred feitnreof by reason of any default in paying any contribution or assessment, except such as are payable at fixed dates, until after notice to the member stating the amount due by him, and apprising him that in case of default of pay- CHAP. I, § 4] Corporations and Companies. 427 mont bv liim within a reasonable time, not bein^ less than thirty days, and at a place to be speeifled in such notice, his interest or benefit will be forfeited or sus- pended, and until after default has been made by him in paying his contribution or assessment in accordance with such notice. This notice may be given by written or printed notice to the effect aforesaid delivered or by registered post prepaid sent to the member or l(?ft at his last known place of abode by or in behalf of the society. Lastly, in respect of any contract of insuranct' for Xu dis- any sum of, or sums amounting to, f5,00l) or ui)w;irds, ^f,'"'|.'''V,,. no corporation or agent can make, as between i)ersons """''" ''*, • . , twcin the of the same expectation of life, and whose lives areassnidi otherwise equally eligible, and who are insured on the tL'.' "ini.^ same plan, anv discrimination in the amount of ])re- "■''i"'«<^- ^ ' "^ ' alley, meet the premiums, he may surrender the policy to the comi)any, and accept in lieu of it a paid-up policy for sudi sums as the premiums paid would represent pay- able at death or otherwise in the same way as the money insured by the original policy, if not surrendered wotild have been payable. In this case the company may ac cept the surrender and grant the paid-up policy, not- withstanding any declaration or direction in favour of the wife and children, or any of them. The person in- sured may also from time to time borrow on the security of the policy such sums as may be necessary to keep the policy in force, and are so applied. The sums so bor- rowed, with interest, are, as long as the policy remains in force, a first lien on the policy, and all moneys payable under it, notwithstanding any direction or declaration in favour of the wife and children, or any of them. Any person insured may require the insurance company to pay the bonuses or profits accruing under the policy to the insured, or to apply them in reduction of the annual 430 li'ujhta of Persons [I'AIIT Domiiiiini inHurance legislation R. S. C. c. 121. Deposit required. premiums, or to add them to the policy. Tlie company must act upon tlie requisition of tlie insured to the ex- tent of thrinted on the face of their policy in the following words: " This association is not required by law to main- tain the reserve which is required of ordinary life insur- ance companies." The words " assessment system '' must be printed on all policies and companies' forms. Xo fire policy can be issued for a longer period than three years. The Dominion Instirance Act is declared not to apply to any society or association of persons for fraternal, benevolent, industrial or religious pur- poses, among whi<'h purposes is the insurance of the lives of the members exclusively, or to any association for the purpose of life insurance formed in connection with such society and exclusively from its members, and which insures the lives of its members exclusively. Building societies under the provincial statutes are j?.^ii(ii„g formed as follows: H.K;ietie.s. R. S. (). If twenty persons or more agree to constitute them- c. \m. selves a building society and execute under their respec- tive hands and seals a declaration to that effect, and deposit this declaration with the clerk of the peace in the county in which they reside, they and the jjersor.s who afterwards become members of the society become a body corporate and politic, styled a building society. The object of the society is to raise by periodical sub- scriptions in shares not exceeding the value of $400 for each share, and in subscriptions not exceeding $4 per month for each share, a stock or fund to enable each member to receive out of the funds of the society the amount or value of his shares for the purpose of erecting or purchasing one or more dwelling houses, or other freehold or leasehold estate, or for any other purpose whatsoever. The amount or value of the shares is secured to the society by mortgage or otherwise on real estate belonging to the member at the time of his bor- 432 Rights of Persons [part I rowinjf mono.v, or on other real oHtatc acquired bv him, until the amount or value of his Hhares with the interest have been fully paid, topether with all fines or liabilities incurred in respect of the advance. The society must make rules and by-laws for its government, and may impose and inflict fines, penalties and forfeitures. No rule can be altered or rescinded unless at a general meeting of the members convened by a public notice written or printed, called in pursuance of a requisition made by not less than fifteen of the members. Any general meeting called for the purpose may also by two-thirds of the votes of the shareholders alter the rules. The general management of the comi)any is similar to that of other incorporated companies. The directors may issue debenture stock. The amount re- ceived as money deposits and borrowed on the security of debentures or debenture stock, with all the other lia- bilities of the society, can only be equal to double tb^j amount of the paid-up unimpaired fixed and permanent capital or shares not liable to be withdrawn, together with a further sum, which may be equal to, but cannot exceed, the amount unpaid upon the subscribed fixed and permanent capital upon which not less than twenty per cent, has been paid. In no case shall the total liabilities to the public exceed three times the amount paid upon fixed and permanent shares in the society. The deben- tures must be not less than $100, and payable not less than one year after their issue. The operation of build- ing societies has been much extended by the provision which enables them to take and hold any real estate or securities on real estate, bona fide mortgaged or as- signed to them, either to secure payment of shares sub- scribed for by its members or to secure the payment of any liens or advances made by or due fr^ tlie society. This provision enables these soci*'tiep o do ^.neral in- vesting business, and they h'^- .ome investment societies instead of being only may pay the compen- sation into the office of the accountant of the Supreme Court of Judicature with interest for six months. A notice must be inserted in some newspaper stating the title of the company, if any, and calling uymn all per- sons who are entitled to the land to file their claims. The Court then adjudicates on the claims received, the company holding the amount. After one month from the deposit of the map or i)lan and book of refen^nce, and from notice in at least one newspaper in each of the districts and counties through which the railwav is in- tended to pass, application may be made to the owners irr 436 i I Arbitra- tion. Rights of Persoris [part I of lands or to persons empowered to convey land, or interested in lands which may suffer damage from the building of the railway, and thereupon agreements and contracts may be made relating to the lands or the com- pensation to be paid. In case of disagreement, a notice must be served upon the party by he company contain- ing a description of the lands, stating the amount which the company is ready to pay for the land and the name of some person as the company's arbitrator. There must also be a certificate of a surveyor for Ontario defining the land and stating that in his opinion the sura offered is a fair compensation. If, within ten days after the service of the notice or publication, in case the owner is unknown the opposite party does not notify to the company his acceptance of the sum offered, or furnish the name of his arbitrator, then the Judge of the County Court must appoint a surveyor as sole arbitrator. If the opposite party notifies the name of his arbitrator, then the two arbitrators jointly appoint a third; if they can- not agree upon a third, then the Judge must appoint a third ; the arbitrators then proceed to decide on the ques- tion of compensation. They are authorized and required to take mto consideration the increased value that would be given to any lands or grounds through or over which the railway will pass by reason of the construction of the railway, and to set off this increased value against any losses or damage which may be sustained. Evidence may be taken before the arbitrators. They must make their award and transmit the depositions and all papers connected with the reference except the award to the clerk of records and writs of the Chancery Division of the High Court. Any party to the arbitration may, with- in one month after receiving a written notice from one of the arbitrators of the making of the award, appeal to a Judge of the High Court; this appeal proceeds in the same way as other appeals from a Judge of the County Court. Upon payment or legal tender of the compensation to the person entitled to receive the amount, or upon the deposit of the amount of the com- pensation in the manner above stated in Court, the award or agr*^ement vests in the company the power to •frt^f^i^ *fin m'» [part I CHAP. I, § 4] Corporations and Comj)anie8. 437 take possession of lands, or to exercise the right, or to do tlie thing for wliieh compensation has been awarded; if there is any resistance, tlie Judge may issue his war- vvarmnt rant to tlie sheriff or to a bailiff to put the company m.sion. IKJSsession. which the sheriff" or bailiff must do. To obtain ti>is warrant i)roof must be made that the imme- diate possession of the lands, or of the power to do the thing mentioned in the notice, is necessary to carry on some part of the railway with which the company are ready forthwith to proceed. The company may also give security to the Judge's satisfaction and in the sum «)' not less than double the amount mentioned in the notice to pay, or deposit the compensation to be awarded within one month after the making of the award, with interest and costs. The company is not entitled to any Mines. mines, except only such parts as are necessar3' to be dug or carried away, or used in the construction of the works, unless they have been expressly purchased. If the owner of mines lying under the railway or on the right- of-way, or within forty yards therefrom, desires to work the mine, he may do so if the company will not agree to compensation. No working of minis can be allowid to the i)rejudice of the working of the railway. Special provisions are made as to highways and bridges and as to fences. The company is allowed to charge tolls for Toll,-^. carriage of passengers and fi-eight. A right of sale is given of goods if freight is not paid within six wc-eks. The general management of railway companies is similar to that of other incorporated companies. Rules arc laid down as to the working of the railway and as to by-laws. Every uction for indemnity for damage or in- jury sustained by reason of the railway must be insti- tuted within six months after the time of the damage. It is not within the proper province of these pages to give detailed information as to general liabilities of railway companies or as to their powers of traflic arrangements. The security of the public has been guarded as far as it can be done in dealing with a country of such great extent as the Province of Ontario. The council of any muni(1'<. months may, after six weeks' public notice, be sold |^y "'"'"""* ' imblic auction; the i)roceeds must be applied to pay storage charges; the balance, if any, must be kept by the company for a further period of three months, to be paid over to the person entitled; in default of claim for this balance, it must be paid over to the Minister of Finance for the public uses of Canada until claimed ^-y the person entitled. Railway companiijs must use tht.' 442 Rights of Persona [I'MIT I boat appliances possible for communication and for stop- oiicckson pinjr trains. Checks are required to be affixed to everv parcel or package having? a handle, loop or fixture, and a duplicate of the check must be piven to the jnissenjjer; if a check is refused the company must pay to the pas- sen}?er tlu; sum of f8, which is recoverable in a civil action; no fare or toll can be collected, and if he has paid the fare it must be refunded by the conductor. Any person requiring the company to send dangerous goods must mark their nature on the outside of the packajre containing them, and otherwise give notice in writing to the company; in default of so doing such person is liable to forfeit to the company $500. The company must not carry dangerous goods except in special cars, on which must appear the words, " dangerous, explo- sives" ; if the company neglects to comply with this requirement it incurs a penalty of fSOO. Trovisions are made as to the speed of trains through cities and towns. No horses, sheep, swine, or other cattle are per- mitted to be at large upon any highway within half a mile of the intersection of the highway with the railway unless in charge of some person. Any cattle found within this limit at large may be impounded; and if they are killed or injured' by any train at the point of intei- section there is no right of action against the company. No cattle are allowed to be taken within the fences of the railway without the consent of the company, and no person is allowed to walk along the track; in- fringement of these rules is punishable by fine. All actions for damages sustained by reason of the railway must be commenced within one year from the time when the damage was sustained, or if there was a continuation of the damage, within one year next after the damage ceased. Pas.sjiiger tickets. R. S. C. c. 110. The sale of railway passenger tickets is specially provided for. Railway companies may appoint ticket agents; the Minister of Railways and Canals appoints ticket agents for Government railways. Every ticket sold by an}' agent must have the name of the agent and the date of the sale written or stamped upon it. No person except authorized ticket agents is allowed to sell CHAP. I, § 4] Corporations and Companicf*. • 4A'.\ railway passonjjei' tickets. If a person otlier than an antlioiized ticlvet agent sells railway tickets he is liable to fine or imprisonment, or both fine and imprisonment. Every holder of a ticket who has an nnused ticket is entitled to a refund of the cost of his ticket less th«* ordinary and regular fare for the distance for which the ticket has been used; the repayment must be mad(? at any station between the points covered by the ticket; the claim for redemption must be made within thirty days from the expiration of the time for which the ticket was issued. Every i>assenger who presents a single journey ticket upon a tr.ain within the time for which the conditions printed upon such ticket, and the date shows such ticket to be good for use, may apply to the conductor of the train to have the privilege of stop- ping over granted and the time for which the ticket is valid extended; the limit of extension is not more than two days for every fifty miles of distance to be travelled in Canada. I have now, after following the arrangement I have laid down,* arrived at the close of the consideration of the mode of formation of companies for carrying on the business of banking and insurance, of building societies and of rail- way companies. The legislation as to banks and banking is solely by the Dominion. By reference to the table of cases on page 22 it will be seen that the right of the province to legislate on the subject of insurance has been upheld.t But vve have also seen that as there are insurance com- panies which desire to effect in.surance in any part of Canada, and not only in any one province, the J)oniinion Parliament has legislated for these companies, tind they have to follow the requirements laid down by both the * See page 391, ante. t In No. 2 of section 91 the v/ords " rej^ulation of trade and com- merce" include political arran lands, none in Ontario,, 101. Demise of Crown, judges continued notwithstanding, 88. no dissolution, 54. Denizens, 244. Department.^ of the Public Service of Ontario, 65. of Canada, 66. Deposits by banks, 410. by insurance companies, 41S, 430. Deputy Returning Officers, 197 216. Deputy Police Magistrate, 235. Dignity, the Royal, 7mbly, 172. Disqualification for membership in Imperial Parliament, 170. in House of Commons, 171. in Legislative Assembly, 172. Disqualificati(m for membership in Municipal Councils, 275. Disriolution of corporations, 390. Dissolution of marriage, 362. Distress for taxes. 300. Districts, voters in. 182. Divisions of English law, 8. Divorce, 362. Domestic cmi nt of Indians, 249. England, laws of, how inlroduced into Canada, 7. divisions. 10. loans to Canada by, 128. Enquiries into public matters, 66, 283. Entry of goods, inwards and out- wards, 135. En venire sa mere, infant, rights of. 33. Equalization of rates by County Cour.3ils, 208. Equity, (leftned, 6. of a Hiatute, 16. to prevail, 16. Escapes from sherilTs, 229. Es'jheats, a breach of the King's revenue, 107. in Province, 160. Estimates by municipni councils, 281. Estrays, law of. 105. Estreats, Provincial, 161. Exchequer Bills or Bonds, issue of. authorized, 130. Excise, how levied in Canada, 137. penalties for infringement of regulations, 139. origin of, oxpliined, 113. f Index. ir.i nent, cliil- B. N. 07. 107. al,179. «gisla- 9. p. 209. r Legis- 180. r House munici- R. IS, 382. ins, 249. ,-a reduced r, 128. liters, f'lS, and out- int, rights DV County 229. the King's ai councils, 01. , ids, issue or, ?,o. Canada, 137. ringement of 139. ini'd, 113. Executive business of the Province, how carried on, 04. Council, Province of Ontario, constitution of, 64. power explained, 53; concen- tration of. 80. Executors and administrators, du- ties of, 165. Ex-emption from distress for taxes, 300. Exemptions from serving on Muni- cipal C()uncils, 275. :rom taxation, 290. Exile, not allowed, 38. Expatriation, 241. Exporting arms and ammunition, a matter of the King's prerogative, 86. Expropriation of lands by railways, 434. of lands for public purposes, 157. of land for public purposes, how carried out for Do- minion, 142. of land for public lurposes, on what law founded, 44. Extradition, proceedings to obtain, 39. Extraordinary revenue, items of, 109. Factories, regulations for, 351. Farm crossings, 441. Farmers, 267. Ferries. Dominion jurisdiction over, 44. municipal, 283. Provincial, 161. Finance, Department of, 69. Financial year of the Dominion, 131. Fines, a source of revenae, 145. Provincial, 162. Fire insuxance contracts, limit of term of, 420. statutory conditions, ib. Fiscal agents may be appointed, 130. Fisheries, Dominion, 143. P. /Vincial, 156. Flotsam. 102. Foreign affairs, the King's prero- gative in, 81, 94. Foreshore and bed of Canadian wa- ters may be transferred to Provinces, 143. Forests, the King's, none in On- tarf'j, 102. Forft'itures, a branch of the King's revenue, 106. Forfeiture, appropriation of, in Canada, 145. in the Province, 162. of charter by banks, 410. by insurance companies, 416, 418. of benefits, in friendly socii-- ties, 426. of railway chnrter, 441. Fountain of honour, the King is, 91. 98. Fountain of justice, the King i.^ 87. Franchise, electoral (for Province), 188. (for Dominion), 209. Fraudulent preferences by corpora- ti?>. a corporation sole, 57, 382. his power of veto, 95. Life insurance agents must regis- ter, 427. See Insurance. Life, right to, when it commences, 32. Ligan explained, 102. Lighthouses, a matter of the King's prerogative, 86. under B. N. A. Act, 97. Limbs, absolute right to, 33. Limited liability must appear, 399. Liquidators, 401. 404. Liquor licenses, 315. Loans by England to Canada, 128. Local allegiance, 240. Tjocal improv«'ments. 284. Locate*', term explained, 151. Lower Canada, Province of, 7. Lunatic, marriage by, 358. term explained, 108. Machinery, accidents from, 352. Magistrates, are supreme and sub- ordinate. 52. supreme, ib. subordinate, 225. Magna Charta, earliest extant statute, 13. provisions of. referred to, 36, 44, 47, 84. Maintenance of children, 367. Majesty, the King's, 55. Malt tax, a source of extraordinary revenue, 110. Manhood suffr;ige voting, 188. Marine and Fisheries, Department of, 67. Maritime state. 257. jurisdiction under B. N. A. Act, 258. Markets, the King has power to establish, 93. Marriage, a civil ccmtract, 355. solemnization of, 358. legal consequences of, 365. Master and servant, 337. Masters of vessels, duties of, as to Customs, 133. Master, responsibility of, fov ser- vants' acts, 344. Mechanics' liens, 348. Meetings, public, 48. Members of Municipal Councils, qualifications, 274. disqualifications, 275. exemptions, 275. elections, 275. vacancies, 277. Membership in Parliament, 170. in House of Commons, 171. in Legislativi' Assembly, 172. Merchants, foreign, prtttection to, 83. Military College, Kingston, 72. Military state. 253. Militia and Defence, Department of. 72. 253. Militia of Canada, 253. Mineral lands, assessment of, 292. Mines, a branch of the King's pre- rogative. 103. near railways, 437. working of, 155. Mining lands, of Province, 153. Ministers — See Departments, 68, 66. Ministry or Cabinet, 63. 454 Index. "'• Minors, apprenticing, 3^9, 379. See Infants. Money, the King has the power to coin, 93, 99. Markets, who has the right to es- tablish, in Canada, 98. Morals, public, 315. Mortiigee, position of, as to Mechanics' lien. 348. Mortgage of ship, 259, Mortmain, 388. Municipal auditors. Provincial, 282. Municipal drainage debentures, 159. grants to high schools, 311. institutions, 270. organization, 271. management of affairs of, 272. powers, 277. powers, 277, 283. local improvements, 285. Municipalities opening roads across railways, 438. Mutual Insurance Companies, 416. how to become stock com- panies, 419. Name must be given to Corpora- tion, 385. Nations, law of, 4. Natural allegiance, 240. Naturalization, 2-12. Natural liberty of mankind, ex- tent of, 29. Nature, law of, 2. Navigation and shipping, fees form a source of revenue, 145. Negligence by a servant, effect of, 343. Nomination of candidate for House of Commons must be accompanicU by deposit, 217. Non-re«idents, assessment. 293, 294. appeals by, 297. collection from. 301. Non-resident land func, 306. North-west Territory, purchase of, 127. Notes of banks, 412. Nullum Tempus Act, 79. Oath of allegiance. 64, 240. Obedience to by-laws, how en- lorced, 283. Offices, disposal of. vested In King, 91. Officers of Municipal Councils, 277. Official guardian, 375. Officials, assessment of, 294. Ontario, law of, 5. Doundaries of, 23. intra-territorial divisions in, 24. Order of arrest, may be issued, 87. Ordinary revenue of the King, sources of, 101. Ordnance Property, transferred to Public Works Depart- ment of the Dominion, 71. revenue from, 143. Organization of Municipalities, 271. Outside voters' list, 199. Parent and child, 367. Parliament, acts of, may be rejected by King, 84. Pardoning, the King's power of, 89. Parliament, Constitution of, 53. assembling of, ib. constituent parts of, 54. one of auxiliary rights of the subject, 46. See Senate, House of Com- mons, Legislative As- sembly. Partnership, assessment of, 292, 294. Patents, fees for, source of revenue, 144. of Crown lands, rectification of, 150. Pawnbrokers' licenses, a source of revenue, 144. Pe<*rs, hereditary Councillors, 59. People, divisions of, 239. Perpetuity of King, 80. Personal liberty, how secured, 36. Personal rights, absolute, 32. Personal security, in what it con- sists, 32. Person or body, absolute right to, 35. Persons, kinds of, in law, 27. Petition for trial of corrupt prac- tic<>s -xt elections, 206. Petitioning, right of, 48. Pet It In of Klght, 30 PLyslcians and Surgeons, 262. Police Commi^iHloners, 28^. Police MaKiHlrat.s, 23.-.. 282, 341. Police powers f municipalities, 284. Policy of insurance must set out contract. iZl. Pi»U CVrk at elections, 199. !7. 341. ilitles, et out Index. 4J55 Polling Jit elections, proceedings at, 199, 217. Ports jmd Harbours under B. N. A. Act. 97. Ports and Havens, a matter of the King's prerogative, 86. Postmaster-General, legal liabili- ties of, 140. Post Office, account of origin in England, IIS. Post Offlci' Department, 70. Post Office, points of law relating to, 139. Poundage explained. 112. Power and jurisdiction of Parlia- ment, 173. Power of parents, 368. of infants, 377. of corporations, 385. Practice of conveyancers, 11. Preamble of Act, 14. Precedents, force of, 13. Premium notes, 421. Prerogative in Canada, 94. in England, 73. term explained, 74. prerogatives are direct or incidental, 75. limitation of, one of the se- curities of the subject, 46. review of, outlines of, 119. Preservation of peace near public works, 158. Printing of voters' lists, 185. Priiitiiii! and Stationery Uepart- nieut of, 69. Prisas'G, 111. Private Acts, 14. Privileges of Parliament, 175. of members of House of Commons, 175. of Legislative Assembly, 176. the King has the power of conferring, 92, 98. Privy Counsellor, duties of, 61. privileges of, 62. Privy Council in Canada, consti- tution of, 63. in England, 60. dissolution of, 63. power of, 61. Railway Committee of, 440. Procedure cannot he altered but in Parliament, 47. Proclamations, power of issuing, vested in King, 90. Property, right of, explained, 44. Prospectus, fraudulent, 394. Protection of children by parents, 368; from parents, 380. Protection of property, 326. of workmen, 351. Protection of game, 328. of the person, 326. Protestant separate schools, 311. Provinces, liability of, to Dominion, 124. additions to original Pro- vinces, 125. Provincial Auditor, duties of, 147. Provincial Constables, 236. debts to Dominion, 125. revenue, management of, 147. revenue, sources of, 146, 149. Treasurer, duties of, 147. Provisional directors, 398. of banks, 409. Public accounts. Dominion, 132. Acts, 14. Health Act, n.. 321. lands. Dominion, 143. Provincial, 149. lands of Ontario, 149. meetings, law as to, 48. morals, 315. officials, assessment of, 294. schools, 307. school boards, 308. service of the Province, 65. of Canada, 66. stores, marking of, 144, n. works, contracts for, re- quisites, 141. Works Department, Do- minion, 70. revenue from, 141. works of Ontario, 156. Qualiflcatious of electors at muni- cipal elections, 27, b. of electors at Provincial electi(ms, 180. at Dominion elections, 209. of members of Municipal Councils, 274. of persons entitled to vote on municipal by-laws, 278. Quashing by-laws, 278. Quebec Act, 7. Quorum, House of Commons, 169. Legislative Assembly, 179. AyM-. \.s and Canals. Denartment of, 71; revenue from 141-433. Railway arbitrations, 435. 450 I ! Index. Railway Committee of the Privy Council, 440. Railway Company, jjasessment of, 293. Companies, expropriation of lands by, 433. tickets, 442. under Dominion jurisdiction, 433. Ratification by minors, 378. Readjustments of Provincial debts, 125. Records, judicial, 11. Recount of votes at Dominion elections, 218. at Provincial elections, 202. Rectification of patents of Crown lands in Ontario, 150. Redemption of land sold lor taxes, 303. Refusal of sailor to join ship, 261, Registration of manhood suffrage voters, 188. of insurance companies, 422. suspension of, 423. cancellation, 424. Registration of ships, 258. Relative rights of persons, 52. Remedies for Injuries by Crown to subject, 77. Remedial, all statutes, to be deem- ed. 14. Remission of fines and penalties by Province, 163. Repatriation, 241. Reports and Reporters, 13 and n. Report of corrupt practices at elections. 207. Reports of proceedings In House of Commons privileged, 177. RoprescJitation in House of Com- mons, basis of, 169. Reputation, absolute right to, 35. Reserve held by banks, 412.* R( signation of members of Xlouse of Commons, 176. Returning officers for Provincial elections, duties of, 194. for Dominion elect'^-ns, 216. Revealed law, 3. Revenue offloers. protection to, in actions against, 138. Revenue, the King's, in England, 101. in Canada, 123. in Ontario, 141. Tlev.olon, Court of, appeal to, in case of works to be done by local rate, 285, 288. Revising Officers for Dominion elections, 212. powers, 215. Rights and Wrongs, objects of law, 26. Right of entry after tax sale, 304. Right of persons, 27. Roads, 284. Roads across railways, 437. Road allowances, 284. Roman Catholic separate schools,. 311. Royal dignity, the, 76. Fish. 102. Military College, Kingston, 72. Sable Island, transferred to Do- m.nion, 97. Safe conducts, may be granted by the King, 83. Safety of ships. 261. Sailors, agreements with, 260. Salary of Governor-General, 55. a charge on Consolidated Revenue Fund, 126. Sale of goods by railway com- panies, 441. Sales of infants' estates, 379. Sales of land for taxes, 302. actions for recovery, 308. Scholarships in University and U. C. College, 283. Schools, 308. See Education, 307. Public School sections, 307. Scrutiny of votes at Provincial election, 208. Sea-marks, a matter of the King's prerogative, 86. Seaman's wages, 260. Secretary of State, Department of, 69. Senate, constitution of, 167. peculiar laws of, 222. privileges of, 175. See Divorce, 222, 364. Separate Schools, 307, 311. Servants, 337, 340. acts of, how far binding on master, 342. Service of Writ of Summons, how secured, 230. Sessicmal indemnities of members, 177. Sheriffs, appointment, duties of, 226. retinue, 228. Shipping, registration of, 258. Ships, mortgages on, 259. Index, 157 Shipwrecks, the King's property, 102. Sinking lund in England, 118. Socage, guardian in, 374. Sole corijorations, 382. Solemnization of marriage, 358. Solicitor-General of tlie Dominion, duties of, {')!. Sources of revenue in Ontario, 149. Sovereignty, a direct prerogative, 76. Speaker of House of Commons, claims freedom of ispeech, 175. duties of. on resignation of member or oilier va- cancy, 176. election of, 1)y Legislative Assembly, 179. casting vote of, 179. Special statutes, 14. warrants. Dominion, 131. Provincial, 148. Stamp duties, a branch of reventu' in England, 116. Stamps on legal proceed inps in Ontario, 149. Standard mea^ -re of length, 265. Standard time adopted, 15. Star Chamber, Court of, abolished, 48. Statute, guai-dian by, 374. labour, 298. Statutes, how passed, 13. how classed, 14. Statutes, Tables of. introductory. 24. supreme magistrates, 223, subordinate magistrates, 238. the people, divisions of, 268. municipal institutions, 312. master and servant, 354. parent and child, 380. corporations and companies, 443. Stock in joint stock companies, 395. in banks, 411. Stop-over tickets, 443. Strangers as between master and servant, 311. Sturgeon, a Royal Fish, 102, Subjects, may b(> confined within the realm, 86. 97. remedy to. for injuries by Crown, 77. Subsidies, a branch of the Cuk- toms, 111. to Provinces from Dominion, 124. Successicm duties, Provincial. 163. Superannualiou, Dominion civil service, 66. teachers, 310. Supplementary Letters Patent, 397. Supreme Court, reference to, of constitutional questions, 60. Supremo Magistrates, 52. Surveyors— See Land Surveyors, 264. Tallies oi" Statutes— See Statutes. Tavern licenses, 317. T.'ixation, basis of, under assess- ment, 292. how taxes pay;ible, 295. none without representation, 45. statutes relating to, 45. Tax certificate, 303. collectors, 300. deed, 304. Taxes, a lien on land, 301. sales of land for, 302. collection of, 300. right of House of Commons to introduce bills for levying, 222. Teachers in public schools, "09. Temporary loans, when permitted to Provincial executive, 148. Tendered ballot papers, 198. Tenders required for public works, 141. Terminable annuities, issue of, authorized, 130. Testamentary guardian, 375. Threshing machines, 352. Timber licenses, Provincial, 152. Tolls on Railways, 437, 441. Tonnage, explained, 112. Town Council, 274. Township Councils, 274. Township School Boards, 308. Trade and Commerce, Department of, 72. under the B. N. A. Act, 98. Trade unions, 346. Transfer of rights of entry after tax sale, 304. Treasurer of Ontario, duties of, 147, 158. Treasure Trove, law of, 104. Treasury Board, Dominion 69. Provincial, 148. Treaties, the King has power to make, 81. T'.raty of Paris, 1S56, 83, n. 'IT) 8 Iiulcx. Tro8i)JiS808 on public lands, 153. TruHt Corporations, 3'Ji). Ubiquity of King, legal, 90. Uncluinicd goods, -MJ. Under sheriffs, 227. United States of America, diffcr- cnc'o between their con- stitution and that of Canada, 20. n. not parties to Treaty of Paris. 185(i. n. University of Toronto, 283, SOT. 313, 390. Unorganized districts, municipal institutions in, 289. schools in, 308. Unused railway tickets, 443. Unwritten law, explained, 10. Upper Canada College, 283, 307, 313, 390. Upper Canada, Province of, 7. Vacancies in Municipal Councils, 277. Vacant land, assessment of, 292. Veto, mode of exercising, under B. N. A. Act, 95. Village Council, 274. Visitation of Corporations, 388. Voters a*^ elections for members of Municipal Councils, 270. Voters' Lists, Dominion, how pre- pared, 212. revision of, 213. Voters' lists, Piovincial, how pre- pared, 183. revision of, 185. how prepared in certain cities, 194. Voting by ballot, mode of, 200, 216, 277. Wages of employees