CIHM Microfiche Series (l\/lonographs) ICI\/IH Collection de microfiches (monographles) m Canadian Institute for Historical Microraproductions /Institut Canadian da microraproductions historiquas 1996 Technical and Bibliographic Notes / Notes technique et bibliographiques The Instit'ite has attempted to obtain the best original copy available for filming. Features of this copy which may be bibliographically unique, which may alter any of the images in the reproduction, or whicn may significantly change the usual method of filming are checked below. H' D D D n D Coloured covers / Couverture de couleur I I Covers damaged / I- -I Couverture endommagee I I Covers restored and/or laminated / ' — I Couverture restaur^e et/ou pelliculee I I Cover title missing / Le titre de couverture manque I I Coloured maps / Cartes geographiques en couleur I I Coloured ink (i.e. other than blue or black) / Encre de couleur (i.e. autre que bleue ou noire) □ Coloured plates and/or illustrations / Planrh0d ISO TEST CHART No. 2| I.C I.I m m III A TIPPLED ItvMBE !^-j> i/U-^ \ .v3 1 "-cyi/Lau^i^ 1^ ' , <^ 900504 Caiuis-a X;-i>v 3oun\a(, V. .V ci; 'I'*!"*''JPRia^. ,^fO'^: % -f,- 9 5 u ^4 Canaba Xaw journal. Zbc (Siuccn. On the evening of the iwciU> ■•'CLnrd il,i .t Jamnn l.i-t, Her Most (iracums Majesty. (Jiifcn Victori.t. p.i— I'd trntn tur t-artlil) kin^rioin into th- pr-scncf of tlu' Kin;; of Kinv;-* ; ami what ha^ bfcn in many rcspt'cts tht- mo-t incnioralilf rui^n in tlir histnry *>( the Hritish Kmpire, and pt-rha;)- ■ t' thi- worUl ha- ronu" to an fni- bihty to the Divinu axirun that " KlL;htcnnnfss i- ..iltt-th a nation " A-* a woman hcrdt* ,. rt-h^iious con\ lutions were * vU rt-rordr. I in hi-r own words on the maiisokuni at I'mt^inorf 'lich nmtains thr rt mains (»f the I'rincc ron-^'irt. and where h jeen laid all that is m(trtal v j^iven a new meaninK to her „filc,al title of Defender of the Faith ; aiul to ha^e furnishe,! not the least striking illustration ..f the qualities, which, in a nurelv political sphere, have rendered her a model Oueen, and a pattern foV all future constitutional monarchs. h is assuredlv a notable achievement to have succeede,! so admirablv in combininj; an atlequate fulfilment of the obligations indden't to her position as head of two state churches, with the toleration which is incumbent upon the ruler of an Kmpire embracing so manv hundreds of diversified sects, that not a single jarring note has troubled the symphony of praise which the representatives of every form of ueiiel has been sounding over her bier. It needs not, however, that we should repeat the praises .so univer- sal throughout her vast Empire and which have been echoed across the oceans from the continents to the islands of th>- sea The best testimony to her virtues and her wisdom is not so much the voice of the eivilued world joining in the same note of praise, but rather what she has helix-d to accomplish during her long and eventful reign. Of no one of even her rank an.l station can it Ik; m<,re truK- said, .V moimmeul,,,,, g„a;ns. an:;ms^ice. The progress and pros- perit.v of hundreds of millions who called her Ouecn and of the inany lands over w hich her sway extended is the best tribute to the beneficent influence of her life. .So splendid an embodiment was she of the greatness of her age and so powerful her quiet influence for good, that no matter how long the world lasts X'ictoria will .s^tand m the van of the rulers of men, and the X'ictorian a.^e wil be an abiding stimulus to all nations in their efforts to attain to the highest plane of living compassed b,- the social state Not the least important advancement during the reion that has just closed has been the growth of law and order and the increased security of life and property throughout the empire. Perhaps the greatest blessing and the one most essential to the welfare of any nation is the strong, sleepless and impartial administration of justice. Since the Chartist riots in ,8,59 there has been no serious popular outbreak, and there now exists amongst her people to a degree unknown in almost any other nation, that sense of safety and security so neces,sary to human happiness, and so indicative of a high order of civilisation. The criminal and dangerous classes have learned to realise that the arm of the law is stronger The Queen. . T^'TT"^ " ""'r '" ""■ ""'^ "' ""= =""'• '•-haps the sKht M,„fte„ sc-en ,„ the cnnvd.-,l th. .roughfares of I ondon may ,„ a s„n„lc way illustrate this .n.Jes.v of "the law. A "uie" a once T'" "^T f"''^ "'"'''' '■■''''''' "-' '"''^ "^ "and'and a once ever,- veh.ele, whether it be the Queen's carriage, the Prime M,n,sters hrou«han, „r .he c„stern,on,er's cart, becomes LZ ' : IP'" °f ""-" »••"•«■■ I'and a"d the roar of traffic bet-ins asa.n 1 he man is only a police constable, but behind him i, the whole power of the empire. When ileath remo>es „„e in authority who has alwa^•s held -vere,,n,.y „ver ot,r love and veneration as well as over our no . c.,1 con.luct ,t ,s ,lifficul, to discuss the event from the prac& 1 ;f-^o„,t ., tu. lawye, ; our minds are too much filled IT^l thought o our loss ,„ that one so gracious, so good and so grea has been taken fn.n, „s M„t turning to matters more speim withni our province: • pe.ianv Cre?tVr'r'"^;h' '"'""'""' "■'""' ^'''"" '" ""= -vereignty of than those winch arc concerned with the administration of justice honor, and to the Sovereign alone belongs the prerogative of mercy. n early and primitive times the " king sat in L gate heanng he c.mplaints of his subjects, redressfng their w™'!; St mwT •'':;'r- ""''.— "nS Punishment'lo malefec:^ ! So sat D.L d and Ins dlustrious successor, and such is the practice to-day n,l..astern cotnuries, and from this practice grew bv W U™ 'V'^;;"^': '•" "■'"^'' ■" "''^'-^y J"^''- - administered. 1: ho une of the .So, ,e,gn all writs run, and were such a thing a standstdl. .More - than any other officials our judges repre- .j.e the Sovereign. The Lord Chancellor is " the keep' r o 'the tt' hi "'■■';";•■ ":■' " " ^'^ '"■^=^"-^- -P---'-^ t^e Lvereig, thah,s great unct.ons are performed. In feudal times the Kings Just.car w.as one of the great officers of State, and the courts as ongntally established, or, as bv degrees tic" we e e..ten,led and enlarged, were the King's courts. .As the King ould appo„,t the judges, so he could remove them, until this po^^^ «as so frequently abused in later times that the Sovereign was compell.d to hmit his prerogative and forego the power of remo" Canada Law Journal. I.awj-crs are uffircrs uf the courts ; and though the changes in our constitution h;ue made the suprcmacj- of our Sovereign a matter of form rather than reality, we natural!)- feel a special interest in the pers(,n of the S.iiereijjn, During the reign just ended there IS no doubt that the opinion of the Queen had a decided influence in the appointment of the jud^'es. N'o doubt a negative, rather than a positive influence, for it cannot be supposed that she would have permitteii the appcjintmcTit to the Bench of any man whose cnaracler was open to suspicion in any particular. .And it is one of the glories of Queen Victoria's reign that th^ judges of her courts h,i\ e been of the higliest reputation for probity as well as ability. ihe accession of (ler .Majest>' foumi our juridical .system f;ee.l from many abuses which had gnnvn up around it, and the criminal law deprixed of man.v of the terrors whicll previously weakened its powers by inflicting penalties so severe that jurie's failed to con^ ict. In later >cars still further changes have taken place, ihe distinction i.. procedure between law and equity has been done away with, and the abstruse science of pleading has given wa>- to a simpler and more reasonable method of arriving at the issues. The jurisdiction of the lower courts has been enlarged so as to bring the means .,f obtaining justice within easv reach of all. ICconomy and simplicity has been aimed at, aiid largely attained, and the i)roccss has been continually going on. We may claim, therefore, that fn.in the legal standpoint the reign of Oueeli \ ictoria has been one of progress, and of progress alw.iys tending to the benefit, not of an_v privileged few, but of the great mass o^f her subjects. Justice has been more than ever tempered with mercy. Reform rather than punishment has been the object of all the changes in .,ur criminal law, and the prevention of crime by removing the source of temptation rather than the infliction of penalties when it has been committed. Space will not permit us to even attempt to deal with man\- other important matters. We might enlarge upon the growth of the constitutional law. and dilate upon the progress that has been made in reg.ard to the liberty of the- subject. We might refer to the Imperial I'arliament rolls, which reveal such progressive measures as those for the re|>eal of the last vestiges of intolerance agamst Roman Catholics; the admission of Jews to I'arliament; the abol.uon of University tests; the Reform .Act, of 1867; the dis- establishment of the Irish Church ; The British North America Act 186;; and the .Vustralian C binmimwealth Act. of 1900; the two The Queen. last etlactments meaning more for the .naintenance and continuity of the Empire than anything that the liriti.sh parliament has done smce the passage of the Act of Settlement in 1700-01. In our grief at the loss of our Queen, ue have consolation in the remembrance of all that we have gained during her long rei^n as well as the just expectation that in her successor we may hoV to see contniued the pnjgress w Inch i,as produced so much benefit to all classes of the commumtj-, and to n,jne more than to the profession in whose interests we are speciall>' concerned. \Ve would now turn for a moment to p.iint out in the briefest possible way tile more important constitutional effects in Canada 01 the Crown's demise. Firstly: The demise of the Crown does not dissolve the parlia- ment of Canada, nor the Legislature of Ontario. (See 31 Vict c -'-' s. 1 , K^.C. c. , 1, s. 1 ; K.S.O. (KS97; c. 1 ,, s. 3.) The same IS true of the legislatures of Quebec 'R..S.Q. Tit. II, .s. 78)- Nova Scotia (R.S..\.S. 5th .ser.,c. 1, s. 91: New Brunswick (Con StX B ;«VVr°'' ''■ ^- '''""'■ '•* ^^■"'- '^■' ""■ '- ^- ')• ""•"'''i Columbia (R.S.B.C. c. 1,8, s. 3,; .Manitoba , K.S.M. c. 36, s. y); North-We.st I erntones ( R.S.C. c. 50. s. 1 1 1. Secondly: The Governor-tJencral is continued in office for eighteen months after the demise of the Crown, b^• virtue of the Imperial .Act, 1 Will. IV'., c. \2. s. 2. Ihirdly: The I.ieutenant-Govenmrs of the several provinces being appointed (see B.N, A. Act. l.S67,s.5«) by the Governor- beneral-m-Council, are retaine.l in office by the proclamation of the Go^•ernor-Gcneral, which was made under the provisions of R S C c. 19, s. 3. Fourthly : Privy Councillors, and all officers, civil and militarv are continued in office tor si.x months after the demise of the Crow'n by 6 Anne, c. 7, s. 8 (1701;. The statute is e.vpressly applied to the colonies. 1 here has also been legislation upon this subject by the Parliament of Canada, an.l most of the pr.nincial legislatures contmuiilg public office: : and functionaries in their commissions' without limitation, upon proclamation in that behalf b^■ the' (.overnor-Cencnil in the case of Dominion officials, and by the l.ieutenant-Governors with respect to provincial officials. In such of the Provinces as there is no legislation of the kind It would .seem necessary for the legislatures to pass enactments confirming the officials in their offices under the new Soverei-^n Cutitn/a Law fournai. See in this coiinectiun : K.S.C.c. 19. s. 3; R.S.O. (l897)c. 16, s. l ; K.S.Q. c. .?. Arts. 60!. f)OJ; Acts of T. K. Island. 43 Vict. c. 9, s. 1 : K.S.H.C. c. I iS. s, J. Kifthly: The Imperial Act, i (leo. III., c. 23. s. 1. which con- tinues the commissifins of the judges during their ^ood behaviour, and ni)tuitlistanditii^ tlie demise of tliu Crown, became part of the law of L'pper Canada In- reason if the aforesaid legislation of 1792, which introduced tlierein the l-jij^lish laws as they existed on the I5tli Oct(»ber. 179J, as regards prtjpert)' and ci\ii ri^jhts, in so far as they were not inapplicable to t!ie state and condition of the Province. The enactment found in Coti. Stat. U.C, c. 10, s. 1 1, is simplj' declarat >ry of the old law in this behalf, and raises no repeal by implication of tlie Imix-ria! legislation. It was in no sense contrary to tlie latter, Init. within the meaning of the authorities, had simply a " crincurrunt eflficacv " See Maxwell on Stats., pp. z\(\ ziy \ Steph. Com., i,Uh efl.v..l. I., pp. 40, 47 ; hosier's cme, 1 I Rejj. dy, Coiisirvittors of ilu- I'/ian/fs w Ball, S.R., i C.l*. 415 ; Fit.zg,r,\ld w (j'i.nnpmys, 2 ]. ik 11. ;i The ]i. N. A. -^ct, 1867,5. 99, in enacting' that the judj;es nf the Superior Courts shall hold office during L^(jod l)eha\ iour. does not repeal the then existing law of Ontario to the effect that the judj^^e's commi.'^-ions shall not be affected by the ("rown's demise. It siinplv' lea\es untouched the old provision as to the effect of the Crown's demise. This propo- sition is based upon two f^rounds : first, because it is a canon of statutory ci'ii-truction that the lej^islature does not intend to make an\' alteration in the existing law be)*ond what it explicitly declares, or fairly implies (Maxwell, p. 1 13) ; and secondly, because s. 1:^9 of the H.N'.A. Act, 1867, expressly declares that except as otherwise [)rovided therein all laws in force in the Province of Canada, and the other Provinces, at the unither provinces of r.iiiiula. cial enactments are nuw Canada. It is tluiibtful, to s statute obtained ii". Uuebec. N Kdward Island before Contedi before t repeali-i iifederation. but tlle>e pro\in- c'd by the Revised Statutes of V- the least, whether this Itn|)eria! .a Scotia. New Hriniswick or Prinee iltioil: and so. e.\ abundailti cautel.i, it would be well for the Parliament of t'anada to legislate upon the subject, and silence doubts as to the effect of the l'ri>wn's demise on the judicial tenure of office, for all time. The following' graceful tribute tu the meniury of our Oueeii comes to us from a leading law\er in New N'ork. It is very plea.sing and grateful to us all at this time. It is one of the many exhibitions of the love and reverence in which she was held bv iiur .\nglo-Sa.\on kinsmen of the great Republic whose forebears came from the same stock as oursehes : "Will )-ou accept m\- sincere sympathy with you all and all Hritons in your sorrow at the death of the Queen. I realize that probably none but her subjects can quite understand what it means to lose both a Sovereign and an ideal ; but I should like to bear witness that just because she w as an ideal her sway c.vtended fai bej-ond the limits within which she was Sovereign, and the whole world mourns with the British Empire. You would be deeplj- impressed could ytni see here in New York the general evidences of sincere sorrow and the general display of half-masted flags on Government anou to be assured of my sympathy and of that of my countrymen unixersally, because I feel that it cannot hut be acceptable to our kinsmen." It is interesting at this time to note that the first " counsel learned in the law " of a liritish sovereign was a Queen's Counsel —Bacon having received this honour from Oueeii Elizabeth. It is also a matter of history that the si!' >bes worn by King's counsel or Queen's counsel owed their o igin to the mourning costume adopted on the death of Queen .Anne, as to which it has been said that " The bar went into mourning and have never sii'.ce left that mourning off." That which was only a witty sa\'ing so far as Queen Anne was concernerl will be the heart truth as to the great and beloved Queen whose irreparable loss the Bar of Canada mourns with the rest of the loyal subjects of the Crown. '*' CaiiaHii Law Journal. His KxcKi.i.eNcv nii: Coveknok Gknkrm has re'eived with defpcst reRrct the news of the death nf ||er Majesty (,)ueeii S'litoria, roni- rnuniialed tii His F';xce',l>n.-y in the folloimii; calile Iroin the Righl Honourahle the Secretary of Stale for the Colonics :_ l.nNnON, January 2J, lyoi. " Deeply regret to infonii you that the Queen |>assed away at six thirty this evening." * 'hamhkri.ain. CANADA. By His Excellency the Kight Honnuralilc Sir Cii.iitKr John Ki.uoi, Earl of Minto and Viscount .Meliiund of Meljjund.Countv of Forfar in the Peerage of the United Ki igdom, llaron .\Iinto of Nlinto, County of Roxburgh in the I'eeragc ')f (".real I'.ritain, Baronel of Nova Scotia, Knight C.rand Cross of the Most Distinguished Order of Saint Michael and Saint George, et<-., etc., C.vernor Ceneral of Canada. To all to whom these presents shall conic,--C.RF.KTlNi; : ly HKRKAS .t has pleased Almighty Cod to call to His Mercy Our late Sovereign Lady (,)ueen X'ictoria of Messed and glorious memory liy whose decease the Imperial Crown of the United Kingdom of C.reat Hritamand Ireland and all other Her late .Majesty's Dominions is solely and rightfully come to the High and .Mightv Prince Allien Edward I'rince of Wales ; I, the Sir Cilhert John IClliot, Earl of .Mint.., ( Governor General of Canada as aforesaid assisted l.y His Majesty s I'nvy Council for Canada, and with their hearty and zealous concurrence, do therefore hereliy pulilish andproclain that the High and .Mighty Prince .\lbert Edward Prince of Wales IS now by the death of Our late Sovereign of happy and glorious memory Income our only lawful and rightful l.iege Lord Edward the Seventh hy the Grace of God, King of the United Kingdom of Great lintaiii and Ireland, Defender of the faith, to whom are due all faith and constant obedience with all hearty and humble affection. And I do hereby require and command all pe'-ons whomsoever to yield obedience and govern themselves accordingly -beseeching God by whom Kings and Queens do reign to bless the Royal Prin. e Edward the Seventh with long and happy years to reign over us. Given under my Hand and Seal at Arms, at Ottawa, this twenty- third day of January, in the year of (:)ur Lord one thousand nine hundred and one, and in the first year of His Majesty's reign. I5y Command, R. W. Scott, Secretary of State. GOD SAVE T .E KING.