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24579
LETTERS
ON THE INTERPRETATION OK THE
mi\kl COMpTITUTION
(AI.I.RI)
THE BRITISH NORTH AMERICA ACT, 1867
BY
T. J. J. LORANOER
Si ris pitffin. fiiifii In lima.
SKCoX!) AND Tmi{|) F.mTKHS
MONTWKAI.
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SECOND LETTER
SUMMARY. — f. In countries whoro the form of novornment is ftxlorative,
as in the Dominion of Canada, tho Constitution lias tIinH»s<iurces
of interpretation— the legislative j)owor,tiioexncntive and tluijudi-
triary. Practical ai>plication of this doctrine to the juridical
interpretation of tho Canadian Constitution. — II. The Constitution
has a fourth source of interpretation in the jurisconsults. Motives
which induced the autiior of those letters to undertake the work.
— III. Utility of judicial decisions on constitutional conflicts in
the interpretation of the Constitution. Dissitrtation on the msiKH*-
tive jwwera of the Federal Tarlianient and of tho Ix^jfislature^ to
pass tavern license laws. — IV. Text of the jud^niont rendered on
the 15th of Docenilior, 1888, by the Privy Council in the case of
H(Kl|^e (VI. tho (iueen.— V. Ccmclusion from the present dissertation
and application of that jud<;ment.
In countries governed by a. single legislative body, the
authority of the law is supreme and no person can call its
lawfulness in question. Such is the principle that prevails in
England. Before confederation the same principle was in
force in the colonies of British North America, whoro laws of
the legislatures not disallowed commanded absolute obedience
from the populations and exacted a rigorous execution from
the tribunals. In unitary countries having a single government,
questions as to the validity, or, to employ the usual term, the
const Unt'mmlify of the law are unknown. It is otherwise in
confedevated States, such as the Dominion of Canada, where
the legislative power is divided into two parts, one of which
5
66 Letters on the interpretation of tfie [Second
belongs to the central or federal government, and the other, to
local or provincial governments. So it is with the executive
power. . -
It necessarily follows from this division of powers that the
act of each legislature and of each executive raises a question
UH to the competence of the body passing it to do so, and may
thus create a conflict of authority between the parliament and
the legislatures, the central and the local governments. Before
receiving the definitive sanction of authority and being put
into execution by the tribunals, the competence of the law
must be subjected to three tests, each of which implies an inter-
pretation of the Constitution. The first test is made by the legis-
lative body itself, which is called upon to j udge of its competence
and before which every bill rai.ses implicitly the preliminary
question of jurisdiction. At the introduction of the bill, that
body must inquire whether the Constitution gives it comi)e-
tence, and to solve that question, that Constitution must be
interpreted. (.)nly when the answer is favorable to the bill,
does it come up for debate. To judge of its powers, the legisla-
ture, therefore, makes itself the interpreter of the Constitution.
The legislative power is thus the first of the constitutional
interpreters. (1).
The second interi>reter of the Constitution is the executive
authority which, before putting the law into execution, must be
convinced of its constitutional value and, in that sense, inter-
pret the (Constitution. Tt is true that, according to the usage
of responsible government, the ministers who advised the
(1) The r<}/(' of iiitori)rotor of tho Constitution thus attributed to legis-
latures, to executive govoruuients and to tribunals is adopted froai.Iudgo
Story, on the American Constitution, n. 87H et neq.
Letter.] Federal ConsiUutiun. '- ' ► W
sanction of the law cannot oppose its execution, and tliat the
second question of interpretation is solved by the first and con-
founded with it. It is, however, no less true that, in the abstract
theory of powers, the legislative body and the executive author-
ity are distinct, forming two separate branches of the public
domain, and that, for the execution of any law, the latter must
be satisfied, by the interpretation of the Constitution, that the
former was competent to pass it.
It may, moreover, hapi)en that the mode adopted by the
executive for putting a law into operation is not warranted by
the Constitution. Just as the question of competence to pass
a law comes up in the legislative body, so before any particular
mode for its execution is adopted, the question of competence
of that mode must come before the executive council. And
here again it is l)y the interpretation of the Constitution that
a solution is found.
But the law, thus .sanctioned and (enforced, has not yet
received that definitive and final sanction which securer it
from contestation. To be put in force by the tribunals, the
latter must be satisfied as to its constitutionality, that is, as to
the competence of the legislative power to j:>as8 it, and the mode
employed by the executive power to put it into execution. If
one or other, or both of these qualifications be lacking, the tri-
bunals must not carry the law to execution. And since it is on
the interpretation of the Constitution that they rest their deci-
sion, it follows that thejudicial body is the third interpreter.
Thus it is evident that the Constitution has necessarily three
public and authentic interpreters. But. though they all possess
the same character, they are not invested with equal authority.
It is the judiciary that judges ultimately as to the soundness
68 letters on the interpretation of the [Second
of the interpretation put by the others, and pronources defini-
tively on the constitutionality of their uct8. The nature of fede-
ral rule, which is a rule of contention and conflict of authority,
of poasible encroachment by one legislative body on the domain
of the other, — nece.ssary result of obscurity in the contitutions
themselves, of difliculties in interpreting them and often of
l)olitical ambition and passions, — makes it clear, therefore,
that there must be a sovereign tribunal or arbiter, invested with
authority to judge these questions in the last resort, and inves-
ted with the task of eliciting from the Constitution its true
meaning and of interpreting it with supreme and definitive
authority. Now where shall we find this final arbiter and judge
of the Constitution, if not in the judiciary ?
In principle it matters little whether that power be exercised
by a tribunal clothed with special authority to judge constitu-
tional cases, or by the ordinary tribunals. The mode of appli-
cation is of little consequence.
In some federations it is upon such special tribunals that the
duty of deciding constitutional questions devolves. Such was the
case with the (Jerman C/onfederation which came to an end in
1866, and the same usage is in force in the Swiss Confederacy
of the present day. In confederate states which have no such
special tribunals, or in those where the law is silent on that
point, that duty, with the other judicial attributes, is incumbent
on the common law tribunals.
In the United States of America, the Supreme Court judges,
in last resort, questions of constitutional law which, however,
are first taken before the inferior federal or State tribunals.
These questions are not, nevertheless, tlie main object of the
suit, inasmuch as there is no special court to which an origi-
letter.] Federal OnistiUition. 69.
nary recourse may be had to declare unconstitutional a law of
CongresH or of any of the States. It is, generally speaking, only
incidentally and in the course ofa suit that, on the objection of
one or other of the parties, the question is raised as to the cons-
titutionality of the law invoked by either of the two, or as to
the conflict between a State law and the law of Congress or vice
vend. The same rule holds in the provinces of the Canadian
Confederation, and especially in the province of Quebec.
At first sight, wc might wonder at the silence of the consti-
tution on this pjint. The authors of Confederation might)
one would think, have expected such conflicts between the two
legislative l)odies and have provided a special plan for their
settlement. There is, nevertheless, nothing in the resolutions
of the Quebec Conference, or in the Constitution, which denotes
any such anticipation. The only arrangement that has refer-
ence to the tribunals is that which is found in clause 101, which
enacts "thut whenever occasion shall re<iuire, the Parliament
" of Canada may provide for the con.stitution, maintenance
" and organization of a general court of appeal for Canada and
" for the establishment of any additional courts for the better
" administration of the laws of Canada," and it is certain that
this clause has no particular reference to the settlement of
constitutional questions.
In virtue of the first portion of this clause, the federal par-
liament was able to establish the Supreme Court and to confer
upon it an appellate jurisdiction ; and in virtue of the second
clause, it created the Court of Exchequer, whose jurisdiction
extends to the collection of the revenue of the crown, the fines
due to it by the laws of Canada and other objects enumerated
in the law for the creation of that tribunal. But there the federal
70 h'UerH on the interpretali.on of the [Second
authority onds. It does not inci'iilo the right to erect a tribunal
for the settlement of conflicts (>f power, for these are decided
not by the laws of Canada but by the constitution itself.
It is true that constitutional ([UPstions may bo brought
before the Supreme ('ourt of Canada, but that is in virtue of
its general nppellateattributes in causes within its competence,
and not on any ground of privilege. Tf the causes in which these
•lucstions are raised are such as would come before the Supreme
('ourt in its appellate jurisdiction, that is, if in the province of
Quebec, the suit amounts to two thousand dollars, if it is a case
brought before the Exchequer Court, if it is a marnhmvn, a
habeas corpim, or a (luestion of municipal by-law, that
tribunal will take ctignizance of it. But in other coses, tliey will
stop within the jurisdiction pertinent to the cause in whicli
they are an incident, just as every other accessory follows the
course of its principal.
The legal theory on which the jurisdiction of tribunals on the
constitutionality of the laws is based, is the following: Every
law that is unconstitutional, for want of authority in the body
that passed it, is null, irreparably and absolutely void. Tt is a
nonentity, p?'o nihilo hahetur. Tt is the same with unconstitu-
tional acts of the executive power, and whenever the judiciary
is called upon to take cognizance of one or the other, its duty
is — not to annul them — what has no existence cannot be
annulled — but to declare them null and non-exi.stent. The
first condition of a judicial recourse is that it be founded on a
law in force.
As we have seen, in the absence of a special tribunal or of a pro-
cedure organized for denouncing these nullities to the ordinary
tribunals by demande principale, they are invoked during the suit
I^ter.] Federal (hmtUtUion. ' It*^
by tho advorao party opposed to that whioh founds its claim on
the law or act clttiined to he null. If an action or prosecution
before a civil or mixed triltunal, is based on a law or act tainted
with unconstitutionality, the defence, in denouncinp that un-
constitutionality, and inclniniing thai tliPsuit should bedecided
without regard to that unconstitutional law or act, obtains the
dismissal of the suit, without even being bound to put on spe-
cial conclusions to thateffect. If such unconstitutional law or act
is invoked by the defendant, the plaintinhas the same right in
reply, and so on through all the stages of the case. All judges,
Avhatever be their competence, civil, criminal or mixed, or
whatever be their rank in the judicial hierarchy, from the com-
missioner of the lowest courts and the justice of the ytence to
the judge of the Queen's Bench, have like jmwcr to reject an
unconstitutional law and to take no account of it. Tf the princi-
pal cause in which the difficulty arises is appealable or suscep-
tible of recourse to a higher court by ccrtwrari, the constitu-
tional question raised follows the same rule ; but it does so
not by virtue of a special privilege, but by virtue of the appeal-
able or evocable character of the main cause. Tf that main
cause be neither appealable nor evocable, the judgment of tho
inferior tribunal on the incidental point will also be final.
On the other hand, the want of appeal from one court to ano-
ther is not irreparable, since, definitively every colonial case
can be brought before the Privy Council, by virtue of the pre-
rogative of the Sovereign to revise every judgment rendere<l
throughout the empire, whatever be the jurisdiction of the
tribunal that rendered it. Thus, although no statutory appeal is
allowed to the Privy Council from the judgments of the Supreme
Court, they are frequently allowed, especially in constitutional
cases, and what takes place in relation to the Supreme Court
72 Letters on the iiilei'jtretatwn of the [Second
may also happen in the case of the provincial courts, deciding
in last resort. Tt was, perhaps, to avoid the suspicion of trying
to abridge the royal prerogative that the authoi's of Confeder-
ation did not erect a tribunal for constitutional questions.
II.
IN THE .TURISCONSUI.TS THE CONSTITl ^TON HAS A FOmTH SOITRCE
OF INTERPRETATION. THE REASONS WHICH INDUCED THE
AUTHOR TO WRITE THESE LETTERS.
We have seen that the Constitution lias necessarily three
official and authoritative interpreters, — the legislative power,
the executive and the judiciary. It has also a fourth, the juris-
consult.
Under the federal regime, which is a limited government,
with defined powers, in order to paralyse the absolutism of
the legislative power, to prevent the central and provincial
governments from encroaching on one another, and to decide
such conflicts of authority as may arise between them, the
judiciary exercises a necessary supervision over both. From
another point of view, although the legislative and the
executive must yield to the judiciary, and although the law
which has been pronounced unconstitutional remains in-
valid, the judgment which has declared it to be so does not
the less, on that account, create a conflict between two great
bodies of the State. Those conflicts, if they be too numerous,
are of a character to create an unhappy antagonism between
powers, to alarm public opinion and to cast suspicion on the
correctness of judgments. Too frequent decisions in favour of
Letter.] Federal Cbmtitiition. '■ '. * ' 73
the same legislative body, whether it be the central or the pro-
vincial government, may arouse suspicions of partiality on
the part of the tribunals towards the body too often victorious
in the judicial issue.
On the other hand, their too frequent accord may excite sus-
picions of connivance, and cause the judiciary to be charged
with excessive complaisance towards legislatures or govern-
ments — especialy towards the federal government, on account
of its patronage. Again, the judiciary must not become
absolute, for in all branches of social order absolutism and
despotism are near akin.
For all these reasons, a rational supervision of legislation,
and the discussion of the judgments of the courts are necessary
to guarantee to society a right administration of justice, and to
ensure it against the abuses of power. This supervision and
this discussion constitute a permanent appeal from the tribu-
nals authorized by the Constitution to a tribunal which, though
not so in the terms, is so in the spirit of the law — the
tribunal of public opinion. The grievance which is the object
of this appeal is the violation of the Constitution by one or
several of the three powers, sometimes by the three at the same
tim*); and the advocates who are entrusted with this appeal are
the jurisconsults, whom w..^ have characterized as the fourth
source of constitutional interpretation. These private interpre-
ters, — not invested with juridical authority, but who wield in
the legal world a moral power e(iual, sometimes superior, to
that of the public interpreters ; whose disinterested interpre-
tation — the result of study — carries with it the guarantee of
its impartiality and good faith ; who are not legislators, but are
the counsellors of legislators, not judges but the witnesses
74 Letters on the interpretntion of the [Second
called upon to give evidence for or against the judges — are,
in certain respects, the real guardians of the Constitution.
What would be the science of the law and the moral authority
of the judgments inspired by its teachings, without the works of
the jurisconsults? The texts of the 'Roman laws were no more
known, the senatus-consults, the plebiscites and the edicts
of the pretors were lost or doomed to oblivion, when Justinian
by co-ordinating the writings of the great legal interpreters of
the law and the respnnsa prudent iiim, compiled the body of the
civil law.
Najioleon desired, but happily in vain, to prohibit any com-
mentaries being written on his Code, so as to avoid, as he
said, the obscuration of the text by the chicanes (Tavocats.
Yet, if his Code has remained the finest monument of legal
science in modern times ; if many nations of Europe retained it,
after they had been delivered from the armed force which first
imposed it on them ; in a word, if it has become the prototype
of European and American codification, is it not, in a great
measure, to its commentators, that that success is due ?
And for ourselves, can we deny the services rendered to legal
practice and to jurisprudence by our reporters and by the few
jurisconsults who have written on our law, however modest
and fragmentary their works may be ? Doctrinal interpreta-
tion is to authoritative interpretation what the theory of a
science is to the practice of an art. Tt guides, illustrates and
perfects it. Let us close this digression by saying that the
jurisconsults are in the legal world what the journalists are in
politics — the fourth estate !
The jurisconsults have no longer, in modern times, the
autliority which they enjoyed in the early ages of Rome, Avhen
I^etter.] Federal Oomtitution. - L ^ 75
they formed Ji privileged class and wore invested with poli-
tical power ; nor that which, under the name ofprudentcs, they
possessed in the days of Imperial Rome, when they were at
once rhetoricians, philosophers and advisers to the prince.
There was even a time when, in certain circumstances, their
responses had the force of law. (*)
It wa.s one of those jurisconsults who said : It is with good
reason that we are said to be invested with a certain sacred
character. We revere j ustice, we disseminate the notion of the
just and the unjust, and distinguish what is efjuitable from
what is ini(iuitous, what is lawful from what is unlawful. [Cujvh
inerito <[im nos sacerdoten nppellet ; juHtitiain naimiue colimva, et
Itoni et cpqui notitiam j>rojUem,ui\ mjumn af> inifpio scparnnten ; lici-
tnm ah iUicito discei'vcntes.']
Modern jurisconsults do not pretend to this excellence, hut
they have not abandoned the right any more than they shrink
from the duty — right and duty consecrated by ten centuries of
noble traditions and of devotion to legal science — of ofi'ering the
help of their studies and the tribute of their lucubrations to
the interpretation of the laws whenever the public welfare
claims them at their hands. Now, has an occasion at once more
favorable and more urgent ever presented itself to the juris-
consults of Canada, of proving their zeal for the sacerdotium
spoken of by the Roman jurisconsult and their devotion to the
(*) It is probablp tliat the answers of tlie jurisi'oiisults had the author-
ity of law under Valentinian II 1, inasmuch as he ('ontirnied the wri-
tings of Uaius, of Illpiin.of TauhiN, of I'ajHuian and otliers; and forbade
the judfjes to dissent in <|ueKtion« of law from the opinion of those writers.
To ol)viate the inconvenience that niijrht arise from diversity of opinion,
on the same question, lie r>niered tliat in sucli a case, the judjies should
defer to the majority ami, if the division were eijual, that the opinion
of Papinian should prevail. — Ferridre: Iflftoiri <hi Droit Homuin,p. \\H\.
76 Letters on the wierpretation of the [Second
interests of the country, than lending the aid of their pens to the
solution of difficulties of interpretation to which a Constitution
founded on new principles and destined to create a revolution
in the public law of British North America has already given
rise in the legislative bodies and in the tribunals? Has a nobler
cause ever solicited a nobler ardour ?
For myself, to whom a timely retirement from the judicial
career has left the leisure for it, and the exercise of functions
connected with the legislation of the province seemed to pres-
cribe it as a duty, I accepted, or rather I imposed on myself,
without hesitation, this mission as arduous as it is glorious. I
am not blind to the obstacles that T shall have to overcome in
the accomplishment of this task so bristling with difficulties
— a task which, moved solely by the ambition to be useful, I have
undertaken without fear and in which I hope to persevere
without weakness. T am aware that, sailing on a new sea which
is studded with shoals, it will not be easy for me to avoid mis-
takes, and that, traversing a route as yet unknown, it will be
almost impossible for me not to lose my way; but, strong in
the consciousness that, though T may deceive myself, T shall
not have attempted to deceive others, and animated by the sole
desire to arrive at the truth, T will claim from all the kind
recognition that is due to good will. From those who approve
of my undertaking, I shall ask indulgence for involuntary
errors ; and from those who condemn it, the justice which good
intentions deserve.
Letter.] ■; . 'V r Federal Comtitntion. v \. , ' ->: 77
III.
UTIMTY OF JUDICIAL HECISIONS ON CONSTITUTIONAI- CONFLICTS IN
THE INTERPRETATION OF THE CONSTITUTION. DISCU&SION OF
THE RESPECTIVE POWERS OF THE FEDERAL PARLIAMENT AND
THE LEGISLATURES TO PASS TAVERN LICENSE LAWS.
As in this interpretation of the Constitution, which should
come to pass in the same manner as the ordinary interpreta-
tion of other laAvs, that is, by the exposition of doctrine and
the discussion of precedents, the conflicts raised between the
legislative bodies themselves and between them and the tri1)U-
nals, must occupy a large place ; and, as in order to invest them
with actuality, the problems raised should be solved just Avhen
they present themselves, such questions deserve some attention
in these Letters, even at the risk of interrupting their didactic
order.
Thus, the discussion of the conflict raised between the provin-
cial license law and the law passed on the same subject by the
federal parliament (where a bill for its abrogation was only
lately introduced), — a law of which I have maintained else
where the unconstitutionality — will supersede in the present
Letter the discussion commenced in the preceding one. It is by
the application of the rules there set up for assigning to the
federal parliament and the legislature their respective attri-
butes of jurisdiction, that this conflict must be terminated.
The jurisdiction of parliament embraces matters of common
interest to the entire Dominion ; that of the legislatures
extends only to matters of special interest to each of the pro-
vinces. The powers of the two bodies are e(iually divided into
78 Letters on the iiUerpretaiion of the [Second
two categories: powers specially or exclusively assigned to
each of them by articles 91 and 92, and general powers assigned
to parliament by the leading clause of the first of these articles
and to the provinces by paragraph sixteen of the latter. There are
only four classes of subjects on which parliament and the
provinces have concurrent power of legislation, in certain cir-
cumstances : direct taxation, agriculture, immigration and
public works. In all other cases the powers are mutually
exclusive. This last inference is drawn from the restric-
tive language of article 91, which says: "The exclusive
legislative authority of the parliament of Canada extends to
all matters coming within the classes of subjects hereinafter
enumerated," and from the equally restrictive language of
article 92, to the effect that " in each province the legislature
may exclusively make laws in relation to matters coming within
the classes of subjects next hereinafter enumerated."
The power to grant tavern licenses and to make them the
object of a law cannot at the same time belong to the Parlia-
ment and to the legislatures, and as whichever of the two bodies
it is as.signed to excludes the other, one or other of the two
laws, that of the Dominion or that of the province of Quebec,
is unconstitutional and ultra vires.
Since article 92 says that the legislature of each province
may exclusively make laws relative to " shop, saloon, tavern,
auctioneer and other licenses," it is evident that this power,
as proved by the text itself, belongs to the provinces only, and
to the exclusion of parliament.
The federalists, who in vain deny this power, elude its
application by a sophism. They say : supposing that the pro-
vinces had the power to pass laws relating to licenses, the ninth
Letter.] Federal (hmtUution. ■-, . 79
^ paragraph of article 92, which recognizes that they have such
power, restricts them to raising a revenue for provincial, local
or municipal objects. Therefore, they have not tho power to
regulate licenses, that is, to determine to what persons, on what
conditions and with what formalities, they shall be granted,
and to provide for the discipline of liquor saloons, &c. And
they urge as this second power has not been granted to the
provinces, it pertains to the parliament, in virtue of the prin-
ciple (which I not only do not reject, but which I have upheld
as one of my maxims of interpretation) that all legislative
power not recognized in the Provincial Legislatures belongs to
Parliament.
We shall see later on . dw, in addition to this pretention,
they contend that this license legislation is taken away from
the provinces, because it atfects commerce, which is a subject
exclusively within the jurisdiction of Parliament, and also how
this second argument, which is no more conclusive than the
tirst, may be refuted.
Let us first consider the former contention.
As in private concerns, the stipulation of a riglit implies the
obligation on the part of the debtor to allow the benefit of it to
the creditor, and the power of the latter to adopt means necessa-
ry to secure its exercise, so, in public law, a power granted to a
nation by a constitution or a treaty implies the faculty of em-
ploying all necessary and suitable agents to ensure its exercise.
These necessary agents, which as accessories follow the princi-
pal, constitute implicit powers, the action of which is a conse-
•luence of the concession of the explicit power and is confounded
with it. The right of building on the ground of other persons
comprises that of transporting thither and putting in order the
80 Lettei'a (TXthehUerprelaXvj.v ojthc , '>•' [Second
materials for the purpose ; aud the power of declaring war,
recognized by a constitution, comprises that of carrying it on
successfully, of enrolling armiet;, of procuring munitioas and
of levying sufficient taxes for theso objects. On this correlation
of principal and accessory pOAvers, is based the doctrine of
powers express or explicit and of powers presumed or implicit,
the former of which comprise the second and to them impart
vitality.
Let us see how this doctrine, applied to the power of the
provinces to make license laws, has invested them with the
right of regulating their grant and operation. The sale of intox-
icating li(iuors being in its nature dangerous to good order and
to the public weal, it is the duty of the State which permits
it to licensed persons and forbids it to the others to
surround the license with precautions likely to diminish these
dangers and to protect public morality. The formalities im-
posed as to the granting of licenses, their number, the selec-
tion of persons to whom they are granted, the locality in which
the licence is to have force, the suitableness of the house in
which the sale is carried on and the maintenance of order
therein, are among those necessary precautions.
The persons \Mho obtain licenses should be persons of correct
morals. The taverns or inns ought not to be too numerous or
too near to each other. The houses ought to be respectable and
suitably furnished. Order must be maintained and no sale of
liquor must take place in the night time, on Sundays, on holi-
days or day.s when riot or disorder is likely to break out.
These are conditions the enforcement of which is necessary
to attain the ends of the law authorizing the raising of reve-
nue for provincial, local or municipal objects — without injury
Letter.] ; Federal Constitution. 81
to public morals — which form the subject of the regulations
whose exercise is by some refused to the provinces.
But is it not evident that, by virtue of the maxim above cited,
to the intent that, in the application of a power, all the ordina-
nary and proper means for i)Utting it in action are deemed to
form an integral part of it, this regulation is in germ in para-
graph 9 of article 02, and is derived from it as logically as if
that paragraph had specially granted to the provinces the
faculty of enacting it ? Qui vcut la Jin veut les moyens, is a say-
ing the good sense of which, apart from any speculative prin-
ciples, would justify this interpretation.
As for the power of sanctioning the license law by the impo-
sition of penalties on those who infringed its provisions, if it
were not implied by virtue of the principle that authority to
enforce his law is a riglit inherent in the legislator, it would
be found in the fifteenth paragraph of article 92 which enacts
that "the imposition of punishment by fine, penalty, or impri-
sonment for enforcing any law of the province made in relation
to any matter coming within any of the classes of subjects
enumerated in this section (that is article 92.) is within the
jurisdiction of the legislatures."
To complete the demonstration that the power of regulating
the grant and operation of licences for the sale of liciuors is
inherent in the power to impose them, we need only imagine a
license law without such a provision. Would not such a law,
restricted to the mere granting of licenses and the imposition
«
of the tax, without any reference to the (qualifications of the
persons licensed, the conditions on which the license should
be granted and the manner in which the sale of liquors .should
6
82 ' Letters on the iiitfrpretntion of the ' [Second
bo conducted, remain a d^ad letter, and would not the provi-
sion of the federal constitution which invests the provinces
with the powers of passing it, become illusory ? But we cannot
imagine a legislator so regardless of common sense !
The folly of such an arrangement which would deprive the
law of ail its force, would be undisputed. But even, wore it so,
the maxim which dominates all legal interpretation, viagis
rnlcnt «piam percat, would eventually impart life and sense to it ;
and that sense, favoured by that other maxim of Roman law :
Ottijurudictw (by the term jurisdidio all public pow'er, legisla-
tive !ind judicial being designated) data est ea (juoque conccssa
esse mdentur, sine quihus jurisdictio erplicari non potuit, would be
the one which weare defending, namely : that to the jurisdiction
accorded to the Provincial legislatures as to liquor licenses and
the authority to grant them, is added by implication and as
the only means of putting the law into execution, the power of
regulating them.
To this absolute and final conclusion, the partisans of federal
competence in this matter, will reply, perhaps, — and it is the
only answer which they can make — that the federal constitu-
tion, if it has endowed the provinces with the licensing i)ower,
has partitioned the legislative autliority on that point, having
invested the Legislatures with the power of granting licenses
to raise a local revenue, and the Federal Parliament with the
power of regulation. This latter power, they may argue, not
having been granted to the provinces, belongs the Federal
Parlismient, not only implicitly, as Ave have seen, but also
explicitly by virtue of article 91, which clothes it witli the
power " to make laws for the peace, order and good govern-
ment of Canada, in relation to all matters not coming within
liOtter-l - Federal Chnstittition. ' . 83
the classes of subjects by tliis act assigned exclusively to tlie
legislatures of the provinces."
Tliere are many objections to be made to this reply. The
chief one is that the power of general legislation for the
peace, order and good government of Canada, refers only to
cases of common interest to the whole Dominion and of
general application, and that the peace, order and good
government of the provinces fall within the jurisdiction of
each of them hi particular, as being matters of municipal
police, on wliich the legislation of one province must differ
essentially from that of another ; l)ut, regarded from the stand
point of its intrinsic value, and of the collaboration which it
lends to the two legislative bodies on the same question, the
least that can be said of this pretention is, that it lacks likeli-
hood.
In fact, the two legislative bodies, organized separately as
complete and independent legislatures, may well naturally
aid each other. One of them may pass a law to give a more
effective sanction to the law of the other and extend its appli-
cation. A federal law may make it a crime to contravene a
local law and, on the other hand, a local law may attach a
civil sanction to a criminal laAV. This reciprocity of good offices
on the part of the legislatures is within the spirit o? the consti-
tution, and^llows and favours the ends it has in view. But
between the execution by the extension by an alien legislature
of a law perfect in itself and the perfecting of an incomplete law,
between the concurrence of two bodies to favour, within the
limits of their respective spheres, the execution of a law passed
by one of them (for example, the federal law voting a salary
to an additional judge appointed by the legislature), and the
V:.;^'-
84 Letters on the interpretati<m of the [Second
participation of the two bodies in the same law, incomplete
without such collaboration, there is no resemblance. The two
hypotheses differ from each other toto coelo.
Theoretically, the Constitution cannot have established a
system requiring the participation of the two legislative bodies
in the same law, and, in practice, the arrangement would be
illusory, since, in the making of a law, one of the two bodies
would be subordinated to the good pleasure of the other; and
even those who find a concurrence of powers between the
Federal Parliament and the legislatures, never imagined that
such concurrence could be exercised by a common or twofold
legislation.
We have just shown that the power of licensing the gale of
liquors belongs to the Provincial Legislatures, to the exclusion
of the Federal Parliament ; that the regulation of licenses is
within their jurisdiction as accessory to that power; that to
the power of making the law is attached that of executing and
applying it in the manner most advantageous to the public,
by employing legitimate means, tending to elicit its due action,
and to attain the ends of legislation ; and that this second
power is an integral portion of the firf^t and is confounded with
it. As a corollary to these propositions we concluded that the
regulations established by the provincial license law were
constitutional. '
We qualified, however, as legitimate the means not specified
in thfe laAV Avhich constitute a power, and which the legislator,
a corporation or an individual, in exercising it, may employ to
make the express power produce its due effects; for it would
jiever have entered the head of the legislator who granted the
Letter.] Federal Gmsl'Uution. ' ■ 85
express power, to permit its sanction by unconstitutional
methods.
The eflect of tins restriction in such hiw as the license law
would be that, in investing the legi.slatures implicitly (by con-
ferring the power to license) with the accessory power of regu-
lation, the Federal Constitution cannot be deemed to have
permitted them to encroach on the domain of the Federal
Parliament by employing means within the sole jurisdiction
of that body, the exercise of which, it had refused to the pro-
vinces.
In this order of ideas, if the regulation of licenses has invaded
the federal domain by legislating on subjects of which, as is
pretended, the cognizance is reserved to it by paragraph 2 of
article 91, which includes the regulation of trade and romnicrcc
within the federal jurisdiction, that invasion has undoubtedly
rendered such regulations unconstitutional and ultra vires. We
must, therefore, turn our attention to the elucidation of this
point.
In regulating the grant and operation of licenses, has the
Quebec Legislature regulated trade and commerce in the sense
of that paragraph ? The first consideration presented in the
enunciation of this question, has to do with the signification of
the word regidation (reglemontation) here employed ; and the
second, with the character of the trade and commerce which
the Federal Parliament has the exclusive power to regulate.
At first sight the word regulation (reglementation) which liter-
ally means the act of making rules, seems undeterminate in its
significance and susceptible of divers meanings. Htill adminis-
trative usage has confined its application to the orders, rules and
86 Letters on the interpretation of the [Second
statutes, made by different public bodies, legislative, judicial,
municipal, commercial, literary and others, to govern their
operations, settle their internal discipline, administer their
affairs and put in execution their charters and constitutions.
They call them reglementsio distinguish them from these organic
constitutions and articles which are named laws, and, as a gene-
ral rule, it may be said that reglements are intended to put the
laws into execution and are, in fact, their complement.
The rules, for instance, adopted by legislative bodies to main-
tain discipline during their sessions and order during their
deliberations, are called rules of the House, the regulations
of the courts by which the laws of procedure are enforced are
termed rules of practice, while those of municipal corpora-
tions are known as reglements miinicipaux, or by-laws. The
same name, regie or rcglcmcni (rule or regulation) is given to
the orders, rules and statutes of other bodies, religious, poli-
tical or civil, of whatever nature or denomination they may be.
These reglements (regulations) must, however, be authorized
by the organic law of the botly ; otherwise they would ' ve no
value. They are, therefore, the creatures of the law, and be-
tween the law and them there are the relations that exist
between cause and effect. Tn other words, the reglemenl (regu-
lation) depends upon the law, as the effect upon its cause.
It may be said, generally speaking, that the regulations are
accessories of the main provision which it is their aim to per-
fect and put in force. Tn the law in question, for instance, the
permission to sell liquors is the principal, and the regulation of
the sale, the accessory.
Whatever may be the correctness of the preceding remarks,
touching the nature of riglemcnts (regulations or rules) and the
Letter.] Federal (JcmstUulion. 87
functions which differentiato tliom from tlic law, it is no loss
certain that it was not that regulation, but the power to make
laws on the subject oftrado and commerce which the Constitu-
tion had in view when it invested the Federal Parliament with
it. This is shown by article i)l and 92 in which the expression
is "to make law" on that subject.
It is, therefore, as a principal and direct object of its legisla-
tion that the Constitution has placed trade and commerce
under the o^gis of the Federal Parliament and has refused the
Legislatures the power to make laws touching those questions.
All legislation affecting commerce chiefly and directly, is for-
bidden to the Provinces. But who would nuiintain that that
interdiction applies to all provincial legislation that affects it
indirectly and consequently, in however remote a degree, as
for instance, the regulation of the sale of Iii[Uors.
The argument employed to support that extraordinary
pretention shows its futility. It is urged that the sale of
S[)irituous liquors is an act of trade stud the liquor business a
branch of it. By imposing conditions on the granting of licen-
ses, which are only granted after certain formalities and to
certain persons, you restrict the number of the latter and con-
sequently you interfere with trade, on which you ijm) fncli)
legislate, contrary to the provisions of paragraph 2 of article
91, and it is the same with the rest of the regulation.
Let us reduce this argument to a syllogism in order to test
its validity.
Constitution forbids Provinces to legislate on trade.
Now, by restricting the number of tavern licenses, legisla-
tures pass a law on trade.
88 Letters on the interpretation of the [Second
Therefore legislatures infringe the Constitution.
This syllogism is evidently faulty on account of the falseness
of the minor proposition, for, by restricting the number of
licenses, the legislatures do not make laws on a matter of com-
merce, but on good morals and against drunkenness, encouraged
by the excessive number of taverns and the debauchery to
which their disorderly management invites those who frequent
them. If, in consequence of the diminution of those taverns, the
liquor trade suffers, it is only indirect) y and by reason of the
protection vouchsafed by the law to public morality against a
clandestine tralfic, which is not deserving of the honoraMe
name of commerce.
If this portion of the license law is ultra vires, we are forced
to conclude that the Provincial Legislatures have no right to
make police regulations for the protection of good moral and
public order, when such protection may injure commerce, how-
ever remote may be that consequence and however illicit that
conmerce.
As well might legislatures be refused the power to regulate
the sale of poisons because they are objects of trade, forlnd
hunting in certain seasons, and in certain places on the ground
of injury to the gunsmith business, and the right of placing
restrictions on marriage, because they have the effect of render-
ing such events less easy and numerous and thus, of doing
harm to the business of the dress-maker and the jeweller !
We might go over the sixteen paragraphs of article 1)2 and,
by applying the same argument, declare unconstitutional, one
after the other, the laws made by virtue of the authority alloAved
to Provincial Legislatures by those paragraphs, because there
Letter.] Federal Constitution. 89
is not one of those laws that does not indirectly affect com-
merce.
The consequences indicated, extreme though tliey be, are
only the logical and necessary deduction from the false
principle on which the federal license law is based — a princi-
ple Avhich takes as the criterion of the constitutionality of the
laws, not the direct main and nearest object of their provisions,
but their indirect, incidental and remote effects. On this false
principle almost all the federal laws would be, in their turn, un-
constitutional, for there are few of them that do not encroach
indirectly, accessorily or remotely on the domain of legisla-
tures — as to property and th'j civil laws, for instance — and
its application would be, in fact, the overthrow of the Cons-
titution.
It would be otherwise if the provincial law had imposed
conditions — in order to encourage the sale of those of domestic
manufacture — affecting directly the sale of liquors, if it had,
for example, forbidden persons licensed to sell imported liquors,
imposed a duty ou the sale, &c. In such and other like
cases, the provision enacted would bear directly and mainly
on commerce. This provision would not form part of the
license law and would no longer be the complement and
consequence of the power of granting licenses. It would not
constitute n»eans necessary to give effect to the license ; it
would, on the contrary, only figure in the regulation as super-
rogatory and superfluous. It might l)e removed without
injury to the operation of the license and Avithout diminishing
the sum or efficacity of the precautions taken by the legislator
to protect the public onler, by assuring the good conduct of
the houses licensed and the respectability of the li(iuor busi-
.Y. iV.- T,*^ ■^■
90 Letters on the interpretation of the [Second
ness. In fact, on all these heads, it is indifferent whether the
liquors sold be foreign or domestic, and the tariff on the sale is
an insignificant detail.
On the other hand, it cannot be doubted that those restric-
tions would constitute, in the sense of the constitution, a
regulation of commerce, since they would have the effect of
diminishing the importation of liquors and of tariffing the
retail trade which until then had remained unrated. They
would form in the license law an incongruity, and to introduce
them would be to confound with that law a law of commerce.
By this hypothesis, to which may Ije added several others
suggested as practical rules for the demarcation of legislation
affecting commerce directly and within the sole jurisdiction of
the Federal Parliament, and that which affects it only indi-
rectly by way of consequence and remains within the compe-
tence of the provinces, we do not mean to express an opinion
on the question whether interprovincial commerce is the only
branch of trade submitted exclusively to the legislation of
parliament or whether any commerce whatever is so submitted.
As that question does not come up at present, it would be
forestalling to deal with it now.
The principles above enumerated seem so evident that one
may well be astonished that the Federal Parlifiment should
have failed to recognize them, while making a law on the sub-
ject. But this astonishment will cease when it is remembered
that the introduction of that law was due to a misunderstand-
ing, and its adoption to a misappreciation of a judgment of
the Privy Council. The Federal Parliament held that the
judgment in question declared unconstitutional the license
/r, , ': ■
Letter.] Federal Constitution. 91
law of the Province of Ontario and deeitlcd that the legislation
on that suhject was within the jurisdiction of the Dominion,
while such was in no sense the case, and the cause of the
Queen and Russell (the cause in question) in which judgment
was rendered in June, 1882, had to do with points alien to the
question at issue which the decision in no way affected.
As that cause made a great stir and as it has been invoked
in different senses, it may be well, in order to enlighten pulilic
opinion regarding it, and to determine its real purport, to give
the full text of the ofhcial report delivered by the tribunal itself,
which is contained in the report of another case, that between
the Queen and Hodge, in which judgment was recently ren-
dered. By this double report it will be seen that in the latter
case, the supreme tribunal declared the license law of Ontario
constitutional and consequently proclaimed the unconstitu-
tionality of that of the Federal Parliament.
IV.
TEXT OF THE JUDGMENT RENDERED BY THE PRIVY COUNCIL IN
THE CASE OF HODGE AND THE QUKEN. CONCLLSION OF THE
PRESENT THEORETICAL DISCUSSION AND APPLICATION OF
THAT JUDGMENT.
Present : Lord Eit/gerald, kSir Barnes Peacock, 8ir P. Collier,
Sir Richard Couch, Sir Arthur Hobhouse.
" The tribunal is called to pronounce on an appeal against
" the decision of the Appeal Court of Ontario, of the 30th
" of June, 1882, invalidating a judgment of the Court of
" Queen's Bench of the same province.
^ *• * \ '
92 Letters on the interpretalion of the [Second
" Although taken on a matter without pecuniary importance,
" the appeal raises questions of great interest between the Parlia-
" ment of Canada and the different legislatures of the confeder-
" ate provinces. The appellant, Arch. G. Hodge, is the proprie-
" tor of the St. James R[otel, of Toronto, and in that quality, lie
" possessed a license, issued under the authority of the'Ontario
" Licence Act, for the sale of liquors. He was also the holder
" of a billiard license, issued under the authority of the muni-
" cipal law by the corporation of Toronto. On the 2.5th of
" April, 1881, the Board of License Commissioners, by virtue
" of the License Act, passed certain resolutions touching the
" regulation of taverns and shops in that city, and, on the
" 11th of March following, the appellant was summoned before
" the police magistrate by the license inspector, for having
" illegally allowed the use of a billiard table in his hotel during
" the time prohibited by the License LaAv and by the commis-
" sioners' resolutions, to wit, after seven o'clock on Saturday
" evening. He was convicted of the offence, and condemned
"to a fine of $20, with expenses, and to imprisonment in
" default of payment.
" He obtained from the Court of Queen's Bench of Ontario a
" rule nisi, enjoining the police Magistrate to show cause against
" the quashing of the conviction, which was demanded for the
" following reasons :
"1. The resolution of the License Commissioners and the
" conviction on which it is founded are illegal and null.
"2. The License Commissioners had no authority to pass
" the resolution prohibiting tlie playing of billiards in the
" manner therein mentioned and had no power to impose a
Letter.] Federal Oonstitidion. 93
" penalty, and in default of payment, imprisonment for oon-
" travention of the resolution.
" 3. The License Law by virtue of which the Commissioners
"had passed the resolution, exceeded the jurisdiction of the
" Ontario Legislature and did not authorize the resolution.
" 4. The conviction had no authority in law and was defec-
" tive in form and null on its face.
'• The rule was argued on its merits on the 25th of June, 1881,
" and the Court of Queen's Bench, composed of Chief Justice
" Hagarty, and Judges Armour and Cameron, declared abso-
" lute the rule to quash the conviction.
"The judgment of the court having laid down that the legis-
" lature of each province has the exclusive power to make laws
" relative to certain specific matters, among which are munici-
" pal institutions, shop, tavern and auctioneers' licenses, and
" others, for the purpose of raising a revenue, the administra-
" tion of justice in the Province, including the Constitution,
" maintenance and organization of the provincial courts and
" civil and criminal procedure, the imposition of punishment
" by means of fines and penalties, relating to all classes of
" subjects within its competence and touching matters purely
" local and of a private nature, added : the Court finds itself
" face to face with a very serious question, namely, the
" power of the Legislature of Ontario to vest the Board of
" License Commissioners with the power of creating new ofFen-
" CCS and imposing penalties on their Commission ! The Appcl-
" lant had contravened regulations made by the Toronto Board,
" but the eight or nine cities of Ontario might have different
" regulations relative to taverns, none of which had been
,„VH^^^■
94 Lntters on th» inierprdcUion of the [Second
" quashed by the legislature. Admitting the legislative power
" of Ontario on the subject, the ('ourt decided that it coult not
" delegate its powers to a local Board of Commissioners, that
" the Appellant hnd not contravened a law of the province and
"that the conviction was Avithout justification.
"Against this decision, the Queen, represented by the attor-
" ney-general of Ontario, appealed to the Appeal Court of the
" Province, on the ground tliat provincial legislatures had full
" competence on the subject in question and could constitu-
" tionnally vest Boards of liicense Commissioners and all other
" bodies of municipal or local creation with the power of pass-
" ing local resolutions or regulations within the sphere of
" their attributes and to enforce them by penalties ; that the
"power of making those regulations did not constitute an
" illegal delegation of legislative powers, but was a legal and
" customary exercise of the legislative authority of the provin-
" ces, constituted by virtue of Imperial Statutes, and that the
" fourth section of the liquor License Act fell within the powers
" of the Ontario Legislature.
"Against that proposition Hodge claimed that the Onrario
" Legislature had no legislative power to pass resolutions or
" regulations like those made by the Board of Commissioners
" by virtue of which the conviction of which he complained
" had been rendered, to create offences and to enforce them by
"penalties, as set forth in the resolutions; that even suppo-
" sing the Legislature of Ontario to have such authority, it
" could not delegate it to a Board of Commissioners or to any
" body outside of its own jurisdiction ; that the conviction and
" the resolutions on which it rested were illegal and unauthor-
" ized, and that the Board of Commissioners had no power to
Letter.] Fede'>-%1 Constitution. 05
" impose fines for their violation and imprisonment in default
" of payment.
" The appeal was heard by Chief Justice Spragg and judges
"Patterson and Morrison, who reversed the judgment of the
" Court of Queen's Bench, thus confirming the conviction. The
" Appeal Court taking for granted the constitutionality of the
" Ontario law, consequently decided that the i)rovinciallegisla-
" ture had and alone had the power to pass laws for the imposi-
" tionof penalties or imprisonment for the violation of aprovin-
" cial law in relation to a matter falling within the class of
" subjects over which the provinces alone had jurisdiction, and
" that their legislatures had the right to delegate their authority
" as the Legislature of Ontario had done in the present instance.
'' On appeal to this tribunal against the judgment of the
" Court of Appeals, Mr. Kerr, Q. C, and Mr. Jeune, intimated to
" their lordships, in their able arguments, that the first and
" main point in the case is whether the fourth and fifth sections
" of the license act of Ontario, 1877, passed l)y tlie Ontario
" legislature, was uHra rivet, abiding tliat the point in question,
" being raised between the Parliament of the Dominion and
" the Provincial Legislature was a matter of importance.
" Their lordships do not think it necessary, in this case, to
" lay down any genei'al rule for the interpretation of the
" British North America Act. The remark of Chief Justice
" Hagarty, that in all those questions of the unconstitutionali-
" ty of laws by reason of exceeding powers, the wisest course
" is not to enlarge the field of discussioi:i by entering into con-
" siderations not absolutely raised by the question in dispute
" is a just one. They do not lose sight of the fact that in a
•^iH •'.■;■•'•
96 Letters on the interpretation of the [Second
prectdinp case arising out of the same statute (Parsons vs.
The Citizen's Company), their Lordships advised those to
whom the difficult task of deciding tliose questions belonged,
to judge each case as far as possible on its own merits, without
engaging in broader interpretations of the statute than the
decision of the case demanded.
" The appellants have maintained that the Legislature of
Ontario was without competence to restrict the traffic in
spirituous liquors, that this competence ])ertains entirely to
the Parliament of the Dominion, and has been withdrawn
from the provinces l)y the British North American Act
(18G7) by virtue of section 91. The paragrai)li of that section
which they hold to have been infringed by the Liquor
License Law is paragraph 2 : " the regulation of trade and
commerce", and the decision in the case Russell vs. Regina
has been invoked in support of the principle that the entire
legislation on the sale of liquors Avas conferred on the Domi-
nion Parliament and taken from the Provincial Legislatures.
It appears, however, to their lordships that the decision ren-
dered by the tribunal in that case has not the effect supposed,
and thai when jyi'opcrly considered^ it should he taken rather as an
authority in svpport of the judgment (f tlie Court (f Appeals.
" The sole question there was, whether it was competent to
the Dominion Parliament, under its general powers, to make
laws for the peace, order, and good government of the Domi-
nion, to pass the Canada Temperance Act, 1878, which was
intended to be applica1)le to the several Provinces of tlie
Dominion, or to such partsof the Provinces as should locally
adopt it. Tt was not doubted that the Dominion Parliament
had such authority under sec. 91, unless the subject fell
Letter.] Federal Conatitutbn. 97
"within some one or more of the classes of subjects whicli by
" sec. 92 were assigned exclusively to the legislatures of the
" Provinces.
"It was in that case contended that the subject of the Tcm-
" perance Act properly belonged to No. 13 of sec. 92, " Property
" and Civil Rights in the Province," which it was said belonged
" exclusively to the Provincial Legislatures, and it was on what
" seems to be a misapplication of some of the reasons of this
" Board in observing on thai contention that the appellant's
"counsel jmncipally relied. These observations should be
"interpreted according to the subject matter to which they
" were intended to apply.
" Their Lordships, in that case, after comparing the Tem-
" perance Act with laws relating to the sale of poisons, observe
"that:—
"//««!8 of this nature dcsigiicd for the p'rnmotion <f jmblir. order,
" safety, or morals, and which subject those who eontrarcve them to
" criminal procedure and •punishment, belong to the subject ofj)ubiic
^^ wrongs rather than to that of civil rights. They arc of a nature
" which fall ivithin the general authority of Parliament to make laws
'\for the order of good government of Canada.
" What Parliament is dealing with in legislation of this kind
" is not a matter in relation to property or its rights, l)ut one
" relating to public order and safety. That is the primary
" matter dealt with, and though incidentally the free use of
" things in which men may have property is interfered with,
" that incidental interference does not alter the character of
" the law.
" The true nature and character of the legislation in the par-
7
•.»»-s,'-.v- -■■I' .•'..,(■
98 Inters on the inten^retation of the [Second
" ticular instance under discussion must always be determined,
" in order to ascertain tlie class of subject to wliich it really
" belongs. In the present case it ai)i)ears to their Lordships,
" for the reasons already given, that tlio matter of the Act in
" question does not properly belong to the vlasB of mltjecta ' Propeiiy
" and Civil Rights ' within the meaning of subsection 13.
" As already stated, it appears to their Lordships that Russell
"rs. the Queen, when properly understood is not an anthonty
^^ in support of the appellant Hodge\s contention, and their Lord-
" ships do not intend to vary or depart from the reasons expressed
"for their judgment in that case. The principle which that case
"and the case of the Citizens' Insurance Company illustrate
" is, that subjects which in one aspect and for one purpose fall
" within sec. 92, may in an other aspect and for another pxirposefall
" within sec. 91.
" Their Lordships proceed now to (consider the subject mat-
" ter and legislative character of sees. 4 and 5 of 'The Liquor
" License Act of 1877, chap. 181, Revised Statutes of Ontario,'
'''' and it is entirely local in character and operation. Itauthorizes the
" appointment of License Commissioners to act in such muni-
"cipality, and empowers them to pass under thenameof reso-
" lutions, what we know as rule or rules to define the conditions
" and qualifications requisite for obtaining tavern or shoji
" licenses for sale by retail of spirituous liquors within the
" municipality ; for limiting the number of licenses ; for decla-
" ring that a limited number of i)ersons qualified to have
" tavern licenses may be exempted from having all the tavern
" accommodation required by law, and for regulating licensed
"taverns and shops, for defining the duties and powers of
" license inspectors, and to impose penalties for infraction of
I<etter.] Federal Constihitum. 99
" their resolutions. Tliese peeni to be all matters of a merely local
^^ nat^tre in the Province, and to be similar, though not ident-
" ical in all respects with the powers then belonging to muni-
" cipal institutions under the iirevioushj cxistivy laws passed hij
" the heal parliaments.
"Their Lordships consider that the powers intended to be
" conferred by the act in question, when prop* -ly understood,
" are to make regulations in the nature of police or municipal
" regulations of a merely local character, for the good government of
" taverns, &c,, licensed for the sale of liquors by retail, and such
" as are calculated to jjreserve, in the municipality, })eace and
" I^ublic decency, and repress drunkenness and disorderly and
" riotous conduct. As such they cannot he said to interfere with
^'■the general regulation of trade and commerce which belongs to
" the Dominion Parliament, and do not conflict with the pro-
" visions of the Canada Temperance Act, which does not appear
" to have as yet been locally adopted.
" The subjects of legislation in the Ontario Act of 1877, sees.
" 4 and 5, seem to come within the heads Nos. 8, 15, and 16 of
" sec. 92 of British North America Statute, 1867.
" Their Lordships are, therefore, of opinion that, in relation
" to sees. 4 and 5 of the act in question, the Legislature of Ontario
" acted within the jwwers conferred on it by the Imperial Act 0/1867,
" and that in this respect there is no conflict with the -powers of
" the Dominion Parliament.
" Assuming that the Local Legislature had power to legis-
" late to the full extent of the resolutions passed by the
'• License Commissioners and to have enforced the observance
" of their enactments by penalties and imprisonment with or
100 Letters on the interpretation of the [Second
" without hard labour, it was further contended that the
" Imperial Parliament had conferred no authority on the Local
" Legislature to delegate those powers to the License Commis-
" sioners or any other persons. In other words, that the power
" conferred by the Imperial Parliament on the Local Legisla-
" ture should be exercised in full by that body, and by that
" body alone. The maxim delegatus non potest delegare was relied
" on.
" It appears to their Lordships, however, that the objection
" thus raised by the Appellants is founded on an entire miacon-
" ception of the true character and position of the Provincial Legis-
" latures. They are in no sense delegates of or acting under any
" mandate from the Imperial Parliament. When the British
" North America Act enacted that there should be a Legis-
" lature for Ontario, and that its Legislative Assembly should
" have exclusive authority to make laws for the Province and
" for provincial purposes in relation to the matters enumerated
" in sec. 92. it conferred powers not in any sense to be exercised
" by delegation from or as agents of the Imperial Parliament, "but
" authority as plenary and as ample within the limits prescribed
" by Sec. 92 as the Imperial Parliament in the plenitude of its
" power possessed and could bestow. Within these limits of
" subjects and area the Local Legislature is supreme, and has the
" same authority as the Imperial Parliament, or the Parliament of
" the Dominion, would have had under like circumstances to confide
'''' to a municipal institution or body of its own creation authority to
" make by-laws or resolutions as tj sid)jects specified in the enactment,
" and 'With the object of carrying the enactment into operation and
" effect.
Letter.] Federal Const it lUion. 101
CONCLUSION OF THE PRESENT DISCUSSION AND APPLICATION OF
THE JUDGMENT.
We have here reached the end of the considerations directly
relating to the questions raised as to the character of the
Dominion Temperance Act and the provincial license laws.
The rest of the judgment is devoted to a demonstrat) a of the
principle that the Ontario law could delegate to License Com-
missioners the powers that it possessed itself as to the sale of
liquors and enact imprisonment with or without hard labour —
in the enforcement of their decisions. Those remarks, valuable
in other respects, as establishing the legislative authority of
the provinces, bear only indirectly on the subject of the report
and may, therefore, be omitted here. Let it sufKce to say that
the Lords of the Council were of opinion that they should
recommend Her ALijcsty to confirm the judgment in the case
of Hodge vs. Regina.
The report of the two cases of Russell and Hodge vs. Regina
clearly shows that in the former, the Privy Council maintained
the constitutionality of the Dominion temperance law
for two reasons. The first reason is that the law consti-
tutes as criminal offenses violations of the regulations prohi-
biting in certain cases the sale of intoxicating liquors by virtue
of its provisions ; and the second is that it belongs to the class
of subjects relatives to the peace order and (jood (jovcrnment of
Canada; that the Federal Parliament was authorized to pass it
by the first portion of section 91, which confers that power to it,
102 Letters on the interpretation of the [Third
and by paragraph 27 of that section which places the criminal
law within its jurisdiction, and for these two reasons only, while
in the second case, the same Privy Council has declared the
license laws to be within the jurisdiction of the local Legisla-
tures.
Now, as this latter law could not be the attribute of two juris-
dictions, it results from this double adjudication that the
Federal law on the same subject is unconstitutional and ultra
rires, and that it was passed in consequence' of a false inter-
pretation of the judgment rendered in the former of the two
cases.
Not only does the judgment in this first case declares the law
of the Ontario Legislature not to be unconstitutional, but the
Lords of the Council decided in the second case, that of Hodge,
that far from supporting the pretention of the latter as to the
invalidity of the provincial law, the precedent in the Russell
case, rightly understood, tended to establish its validity.
From tlie twofold standpoint of doctrinal interpretation and
the jurisprudence of the Privy Council, the provincial law is,
therefore, alone valid, and the federal law is unconstitutional.
THIRD LETTER
SUMMARY. — I. Bill for the reixial of the Federal License J^aw presentetl
to tlie Federal Parliament. Reference to the Privy Council or to
the Supremo Court ordered by the House of Commons. — IT. How
this reference may be etrect<5d. — IH. There is no method by which
this reference may be given efl'oct to, by the ordinary action of those
two tribunals, on the prosecution of the Federal < tovornment, which
would be the only legal mode of obtaining that object. — IV. Tha
reference enact^'d by clause 52 of the Supremo Court Act would not
be a suitalilo mode of putting the reference in force. — V. That
clause r)2 relates only to administrative and executive matters. —
VI. Proof of this proposition by several English precedents on refer-
ence to the Privy Councul, which reference dictated that of our
clause 52. Interpretation of clause 4 of Guil. 4,c. 41, which [Kninits
reference by the Crown of administrative questions to the judicial
comnntt(»e of the Privy Council.— Vll. I'oference of clause .VJ of the
Supreme Court law cannot have wider aiiplication than clause 4,
Guil. 4, c. 41, from which it is borrowed. Direct reference to the
Privy Council is not authorized by the Constitution. Development.
— VIII. By virtue of clause 52 of the Supreme-Court Act tlu^ Fede-
ral Government has no [)ower to refer legislative quastions to that
tribunal. — IX. Diversity of opinion in the House on the mode of
reference. Two parliamentary s|»echcs on the subject.
The constitutionality of the Federal License Law has recent-
ly been the subject of debate in the House of Commons. To
the proposal of a member, Mr. Houde, to abrogate the law, vSir
Hector Langevin opposed the following amendment : " In
the opinion of this House, it is advi8al)lo that the com-
petence or Parliament to pass the Liquor License Act of 1808
be submitted as expedlitously as possible to the Supreme (hurt
1 04 Letters on the interpretation of the Third
of Canada or to the Judicial Committee of the Privy Council
or . to both." This amendment having been voted by the
majority of the House had the effect of setting aside the origi-
nal proposition^
Some salient features were brought out in the debate. The
most important of these was that among the Quebec members
who voted for the amendments of the minister of Public Works,
a large proportion recognized, some explicitly and otlicrs by
imjilication, the validity of the provincial law and consequently
the invalidity of the Federal law.
The second feature of the debate which merits attention
relates to the discussion, dealt with in the preceding pages of
these Letters, on the Russell and Hodge precedents. Home
speakers, few in number, including Sir Hector Langevin,
maintained, firstly, that in the first of these two cases the ques-
tion of the validity of tlie Federal law was not raised, and,
secondly, that if it had be'jn put in issue, the decision of the
Privy Council was not unfavorable to it.
At the risk of repeating myself, I must anew combat these
two assertions. In the Russell case the competence of the
Federal law and of the power of Parliament in connection with
it was so clearly brought in question, that it was on the
decision of that case in favour of that body, that the Govern-
ment based its law, and that it was on account of the pretend-
ed incompetence of the legislatures as declared by that deci-
sion, that the House of Commons concluded that Federal legis-
lation was necessary. We have shown, what the Privy Council
in the Hodge case also made clear, the false Miterpretation
given by the Federal Parliament to that decision. It would
be idle to return to that branch of the subject,
Letter.] Federal Constitution. 105
The second point, that which relates to the Hodge case, is
more important, in as much as, in that last case the validity of
the provincial law, expressly and pronounced upon in that
judgment, necessarily implied the invalidity of the federal
law, since, as I have already shown, there is no concurrent
power in the matter of licenses between the two bodies, and
the attribution of jurisdiction to one of them necessarily
imi^lies the exclusion of the other.
To show that the validity of the federal law was in question
in the latter case, it suffices to repeat that the prosecution of
Hodge was undertaken for his violation of the regulation of the
License Commissioners of the city of Toronto, such regulations
and commissioners having been made and elected in accordance
with the provision of the Ontario license law. It has been
urged with regard to those regulations that the prosecution
had reference to municipal by-laws and that, therefore, it was
a municipal matter which could not l)ring into question the
validity of the Federal law. It ; true that these regulations
had a municipal character, but it was the provincial law
which gave them existence and imparted that character to
them. To recognize their validity, it was necessary to recog-
nize the competence of the law.
It was on this plea, invoking the validity of that federal
law as opposed to the provincial 'statute, that Hodge had taken
a, certiorari against the judgment of the magistrates rendered
in acoordance with that statute The Privy Council, in rejecting
this certiorari and in declaring the regulations valid and the
provincial law constitutional, maintained the converse pro-
l)osition, in other words, declared the federal laAV unconstitu-
tional. In view of these facts, how can it be pretended that
106 Letters mi like interprelatmi of the [Third
the Russell case did not constitute a prejudgment and the
Hodge case a positive judgment against the Federal law.
Hitherto the discussion in the House of Commons has inter-
ested us only from the standpoint of the legal question, raised
on the conflict between the two powers in the matter of the
license laws, and of the correction of false interpretations that
had been given to them. We shall now discuss the o^ lortune-
ness or legal value of the conclusion at which it arrived, namely
to refer the question to the Supreme Court or to the Privy Coun-
cil, or to both tribunals.
II
» HOW THIS REFERENCE MAY BE ENFORCED.
This reference raises questions of graver significance and of
much more dilHcult solution than the members who voted it
seemed to suspect. One member, when asked by another mem-
ber which mode of reference the government would adopt,
replied : "A bill, I suppose." This mode is clearly impracti-
cable.
Parliament is incompetent to pass a law to refer the question,
apart from the legal processes created by the Constitution or ex-
isting at the time of its formation, that is to say, proceedings in
common or statutory law, — to the Supreme Court or Privy
Council. Neither could it create a new tribunal or confer on
existing tribunals extraordinary powers for the purpose of
trying the constitutional question; because the only power
confered upon it by the federal compact is as we have hereto
Letter.] Fedei-ai ConslUution. 107
seen, that of creating a general Court of Appeal and all other
tribunals necessary for giving effect to the Federal laws. Now,
as the question is whether the power to pass license laws is
federal or local, it would be simply prejudging or begging the
question to legislate on that subject. But let us not anticipate.
That point will come up later on.
On the other hand, what the House of Commons is deemed to
have enacted for its guidance — not wishing to take the initiative
itself and to pronounce authoritatively as to its competence or
non-competeuce — is the necessity of a decision regularly ren-
dered by a competent tribunal implying the authority of chose
jugee, that is, an ordinary judgment in common law, rendered
between the litigants and in the exercise of the contentious
jurisdiction of the tribunal rendering it. It could not be a ques-
tion of an opinion asked ex parte by the Federal (iovernment
to the .Supreme Court or Privy Council, which, far from ending
the difficulty, would only aggravate and prolong it. We must,
therefore, ask how the end of the resolution of the House is to
be reached ?
Taking for our start'.ng point the rule already established,
that in default of a cor.stitutional tribunal, the courts can take
cognizance of constitutional questions only as incidental to the
principal suit, in cases tried before the inferior tribunals, let us
see whether the Supreme Court, acting under the judicial
conditions which have been explained, may take cognizance of
the question which the House of Commons had decided to reiser
to it.
In the province of Quebec what are the lawful proceedings
to that effect under the Dominion or Provincial License Law ?
Suppose that both laws be simultaneously enforced, aud this
108 Letters on the intei'jyretation of the [Third
may easily happen as neither of tliem has been repealed and
as, so long as the question remains unsettled, each of the
Governments, we may presume, will enforce its own laAV. These
proceedings are three in number: penal action, redress by
means of quo warranto or information in the nature of quo
warranto, and mandamus.
The penal action may be instituted by virtue of either law
against any retailer of liquors who sells without license (and,
when thus prosecuted, it is lawful for the defendant to plead
the unconstitutionality of whichever law may be invoked
against him) ; or against any holder of a single license obtained
from one of the governments, for violation of the law of the
other. The holder of two licenses would alone enjoy immunity
from such penal proceedings.
The prosecution must be taken before the justices of the
peace, and recourse may be had to the .Superior Court by
certiorari at the prosecution of the condemned defendant.
There is no such recourse for the non-suited prosecutor. More-
over, according to article 1115 of the Code of Civil Procedure,
there is no recourse to the Court of Ap])eals in cases of certiorari,
and by the terms of section 17 of the Supreme Court Act, the
case of certiorari is not, like that of mandamus, excepted from
the provision Avhich limits appeal to the latter court to cases
in which the matter in dispute amounts to $2000. It follows
that there cannot be recourse to the Supreme Court in penal
actions, and that the reference decreed by the House of Com-
mons is in this instance without application.
The second legal recourse is the quo warranto or informa-
tion in tie nature of quo ivarranto, instituted in accordance
with article 997 of the Code of Civil Procedure, which
Letter.] Federal Ckmstitution. 109
enacts "that when a public corporation, body or board
assumes any power, franchise or privilege which does not
belong to it oris not conferred upon it by the law, Her Majes-
ty's Attorney-General for Lower-Canada is bound to proceed
against such infraction in the name of Her Majesty, when there
is reason to believe that these facts can be established in a
matter of public interest." But, as this prosecution cannot be
entered in any other name than that of the Attorney-({eneral,
it is evident that it can only be laid against the commissioners
of the Federal Government and that it exists in that case only.
Besides, although, in these cases there is recourse to the Court
of Queen's Bench, from the rendered court no appeal is allowed
to the Supreme Court.
There remains the mandamus which is lawful by virtue of
article 1022 which, among other provisions, enacts that: " 2.
when a public functionary omits, neglects or refuses to
perform a duty jiertaining to his function or ofhce, or an act
that the law imposes on him, any person interested may apply
to the Superior Court for a warrant enjoining the defendant to
perform the duty or act required or to give ifcasons to the con-
trary on a day fixed for the purpose."
The enumeration of all the persons interested being need-
less here, it will sutlice to say that the Government of the
Dominion and the Government of Qnebec, which are per-
sons in the legal sense of the term, and which, on account of
their conflicting laws on the subject, have an interest in main-
taining their authority, are enabled respectively to take out a
mandamus against their own commissioners in case, and this
is the onl}' one, the latter should refuse to enforce the
law, which is a hypothesis at least extremely improbalile.
110 Letters on the interpretation of the [Third
This case of mandannis which, according to the Supreme Court
Act, is nevertheless, the only one which admits of appeal to
that tribunal, is also the only one in which a government can
take proceedings before the inferior tribunal and bring before
it incidentally the constitutional question.
Ill
THEKE EXIST NO MODE BY WHICH EFFECT CAN BE GIVEN TO THE
REFERENCE BY THE ORDINARY ACTION OF THE TRIBUNALS,
FOR THE PROSECUTION OF THE FEDERAL GOVERNMENT.
Is there any further argument necessary to show that, in the
province of Quebec at least, there is even incidentally, on behalf
of the Dominion, no recourse either ordinary or by way of
appeal, for the enforcement, in its name, of the reference to the
Supreme Court, ordered by the House of Commons.
I say in its own name, that is to say, in the name of the
Federal Government, because some persons seem to think that
that Government may avail itself of intermediates to bring
actions in their name, but at its own risk, and have them
appealed to the Supreme Couit, so as to lay the question before
that tribunal.
But besides that such a course would be possible only in the
case of the mandamus ixxst mentioned, such a proceeding would
be ill advised in itself, it being unworthy of a Government and
opposed to the spirit of the resolution which voted the refer-
ence to have it carried out by private persons.
It is true that under the heading, special jurisdiction, the
Letter.] Federal Gonstitution. Ill
Supreme Court Act, as amended by 39 Vict., chap 26, section
17, contains the following provisions :
" 54. When the Legislature of any Province forming part of
Canada shall have passed an Act agreeing and providing that
the Supreme Court, and the Exchequer Court, or the Supreme
Court alone, as the case may be, shall have jurisdiction in any
of the following cases, viz. : — (1st) Of controversies between
the Dominion of Canada and such Province ; (2nd) Of con-
troversies between such Province and any other Province
or Provinces, which may have passed a like Act ; (3rd)
Of suits, actions, or proceedings in which the parties
thereto by their pleadings shall have raised the question of the
validity of an Act of the Parliament of Canada, when in the
opinion of a Judge of the Court in which the same are pending
such question is material ; (4th) Of suits, actions, or proceed-
ings in which the partieS thereto by their pleadings shall have
raised the question of the validity of an Act of the Legislature
of such Province, when in the opinion of a Judge of the Court
in which the same are pending such question is material ; then
this section and the three following sections of this Act shall
be in force in the class or classes of cases in respect of which
such Act so agreeing and providing, may have been passed."
" 55. The procedure in the cases firstly and secondly men-
tioned in the next preceding section shall be in the Exchequer
Court, and an appeal shall lie in any such case to the Supreme
Court."
" 50. In the cases thirdly and fourthly mentioned in the
next preceding section but one, the Judge who has decided
that such question is material, shall at the request of the parties,
and may without such request if he thinks fit order the case
112 Letters on the interpretation of the [Third
to be removed to the Supreme f-ourt in order to the decision
of such f[uesti(m, and it shall be removed accordingly, and
after the decision of the Supreme Court, the said case shall be
sent back, with a copy of the judgment on the question raised,
to the Court or Judge whence it came, to be then and there
dealt with as to justice may appertain."
" i57. The next two preceding sections apply only to cases
of a civil nature, and shall take effect in the cases therein pro-
vided for respectively, whatever may be the value of the matter
in dispute, and there shall be no further appeal to the Supreme
Court on any point decided by it in any such case, nor on any
other point unless the value of the matter in dispute exeeeds
five hundred dollars."
By virtue of these sections the question might l)e ultimately
referred to the Supreme Court, but as long as the Quebec legis-
lature has not passed the laAV mentioned in the first of the four
sections, it remains impossible in that province.
Section 52 of the same Supreme Court and Exchequer Court
Act contains also the following provision:
" 52. It shall be lawful for the (Jovernor in Council to refer
to the Supreme Court for hearing or consideration, any matters
whatsoever as he may think fit; and the Court shall thereupon
hear and consider the same and certify their opinion thereon
to the Governor in Council : Provided that any Judge or Judges
of the said Court who may differ from the opinion of the
majority may in like manner certify his or their ojnnion or
opinions to the Governor in Council."
Letter.] Federal OonatiiiUion. 118
IV
THE REFERENCE ENACTED BY CLAUSE 52 OF THE SUPREME COURT
ACT IS NOT A SUITABLE MODE FOR GIVING EFFECT TO THE
REFERENCE.
If it were held that by virtue of this provision, the Federal
Government could submit to the Supreme Court the question
of the validity of the Federal license law, the reply would be
that this reference is not what was contemplated by the House
of Commons, since it is not a juridical reference en viatihe con-
tentieusi (1) and that such reference or appeal in the exercise
of contentious jurisdiction can alone satisfy the desire of the
House and accomplish the object of the resolution.
The contentious nature of the reference ordered by the
House of Commons is easily proved. A bill had been submitted
to it for the repeal of the license law of the last session, on
(1) In order that these Letters, which are not written merely for law-
yers, may be clearly understood, it will be necessary from time to time
to expound certain matters of legal and judicial practice. The distinc-
tion made in the text between the reference in matter of volontary or
gracimis jurisdiction, and contentious jurisdiction calls for some explanation.
In civil law, it is called voluntary jurisdiction when justice is administered
on a demand voluntarily made by a party without being directed by
summons against another party, and which does not seek the condom-
nation of any person — in a M'ord, which does not institute a law suit. An
exemple of such jurisdiction is afforded by the appointment of a tutor
or curator on thedemand of the father of the minor or of those interested.
In this case, the demand, although judicial, in so far as it asks for the
intervention of the judicial authority, is not directed against any one nor
does it require the assignation of a defendant. The judgment necessitated
by such a demand is not coercive ^nd is rendered by a sort of grace. It is,
therefore, termed graciom { juridiction gracieuse or jurisdiction of grace). An
has been seen, it is also called voluntary, because there is nothing con-
8
) ••;■>
1J4^ Letters on the interpretation of the ' [Third
account of the false interpretation given to the judgment of
the Privy Council rendered in the Russell case, by which
judgment the last law had been prompted. The falseness of
that interpretation, according to the author of the repeal bill,
had been recognized by a judgment subsequent to the license
law, rendered by the same tribunal, the judgment in the
Hodge case. This appreciation of the two judgments was
shared in by a good many members.
On the other hand, a section of the House maintained that
the judgment in the Hodge case was not susceptible of the
application attributed to it; that it had neither shown
the false interpretation put by Parliament on the judgment in
the Russell case, nor proved the unconstitutionality of the
license law.
The real question, therefore, had to do with the nature of
the decision of the Privy Council as to the constitutionality of
this latter law, some holding that the supreme tribunal had
tentious in it, it requires no oxamiuatlon and the parties interested submit
to it voluntarily.
Oontentiom jurisdiction is that which is exercised against a party who
is obliged to submit to it, whose condemnation is sought, who must be
in which there is a trial — in other words, which brings on a suit.
According to this distinction, the reference of a constitutional or legal
question by the Federal Government to the Supreme Court, or by the
Queeu in Council to the Judicial Committee, is a matter of volmitary or
gracious jurisdiction, and this same reference made to tribunals in a
suit is made in contentious jurisdiction. We will also call (he former
direct reference Mid the latter indirect, because, in the one case the
opinion of the ^Supreme Court is the chief and direct object of the
reference ; in the other the judgment of the tribunal on the question is
brought out incidentally in the course of the suit and the reference or
submission of this question is indirect, with regard to the suit in which
it occurs.
Letter.] Federal Constitution. 116
pronounced it invalid, while others affirmed the contrary.
When the House ordered the reference on the constitutionality
of that law, it must have looked for a decision like that ren-
dered by the Privy Council in the Russell and Hodge cases, on
the very point expressly raised in the case submitted, and on
which the tribunal would be forced to pronounce expressly, so
as to judge it, no longer by implication, but explicitly.
V.
THIS CLAUSE 52 RELATES TO ADMINISTRATIVE AND EXECUTIVE
MATTERS.
To have its full effect, which is to direct the action of the
Federal Parliament as to the repeal or maintenance of the law,
and that of the Legislatures, on the subject, and serve as a
precedent to the tribunals, this decision should, therefore,
have the same character of contentious juridicitj'' as the two
decisions afore-cited, and be in the legal conditions requisite
to create la chose jugh, that is, be rendered in a contradictory
suit between legitimate parties. Now, is it necessary to say
that the report made by the Supreme Court by virtue of section
52 of the Supreme Court Act above cited, on demand made by
the Governor in Council, that is by the Federal Executive,
would have none of these juridical conditions? That report
would not be made in a suit undertaken between legitimate
parties and would be in no wise obligatory. According to the
Supreme Court Act and the English practice, of which we are
about to speak, such a report is demanded voluntarily and
made ex parte, for the iuibrmation of the executive and the
116 Letters on the interpretation of th3 [Third
guidance of its administrative action. It could not, especially,
exercise any influence on the action of the Federal Legislature
which is not even vested with the power to ask for it, and to
which section 52 does not extend (1). Created for the needs
of the administrative service, this reference cannot pass the
domain of the latter. ''' "
In the juridical usages of England, clause 52 does not, more-
over, constitute a novel practice. It is borrowed from the Impe-
rial Statute 3 and 4 Guil. 4, c. 41, entitled : " An Act for the better
administration of justice in His Majesty's Privy Council,"
clause 6 of which is to this effect : "It shall be lawful for
His Majesty to refer to the said Judicial Committee forbearing
or consideration any such other matters whatsoever as His
Majesty shall think fit, and such committee shall hear or con-
sider the same, and shall advise His Majesty thereon in manner
aforesaid."
There can be no doubt that, in its application as in its con-
text, the effect of this clause is restricted to the administrative
jurisdiction of the Executive Government of England and that
it was not intended for legislative purposes. In fact, the Execu-
tive Government is without control over the legislative domain,
and it is not in the power of the sovereigns to refer a legisla-
tive question to any body politic whatever, any more than to
the tribunals of the empire, otherwise than in the ordinary
juridical form, and in the same way as any other party having
(1) We shall see later on in what circnmstances and on what condi-
tions, British legislative bodies may ask for the opinion of judges on
special questions of law, and the effect of that opinion.
*•■■,-
Letter.] Federal Constitution. / 117
recourse to the judicial authority. Setting aside the eminence of
the tribunal and the special character ofthe argument, which is
made by the parties as in an ordinary suit, this administrative
reference is in its nature and effects assimilable to the refer-
ences made by the Crown to its law officers.
VI
PROOF OP THIS PROPOSITION BY SEVERAL ENGLISH PRECEDENTS AS
TO REFERENCE TO THE PRIVY COUNCIL, WHICH REFERENCE
DICTATED OUR CLAUSE 62. INTERPRETATION OF CLAUSE 4
GUIL. 4, C. 41, AUTHORIZING A LIKE REFERENCE BY THE
SOVEREIGN TO THE JUDICIAL COUNCIL.
The following cases referred by the Crown to the Judicial
Committee by virtue of clause 4 of Guil. 4, c. 41, above cited,
may give an idea of the nature of the subjects which are thus
dealt with.
" When a public functionary has been suspended, the matter
is generally referred by the Crown to the Judicial Committee
on the recommendation of the Secretary of State, although not
invariably, for in certain cases the latter takes upon himself the
responsability of advising the Crown to confirm or reject the
suspension."
(22 Geo. 3, c. 75. Ex parte Robertson 11 Moo. P.C.C. 258.)
"The Judicial Committee has also, on the special reference
of the Crown, made through the Secretary of State, heard a
case based on a memorial presented to Her Majesty by the
representatives ofthe Island of Grenada, asking for the dismis-
118 Letters on the interpretation of the [Third
sal of the chief justice for bad conduct, and a counter-memorial
from that functionary."
(Representatives of Grenada, 6 Moo. P. C. C. 38.— The parties were
heard by counsel before the Judicial CJommittee.
The case of judge Elz6ar Bedard, also heard by Judicial
Committee, on special reference of the Crown, is particularly
interesting.
Judge Bedard had been, since 1836, a judge of the Court of
King's Bench for the District of Quebec. Transferred in 1848
to Montreal, as judge of the same court, for the latter district,
he wished, at the opening of the succeeding term, to take
his rank on the bench according to seniority and claimed pre-
cedence over judges Day and Smith, who had been appointed
after him, but who were his seniors in the District of Montreal.
The latter protested against his pretention, notwithstanding
that the Commission appointing him judge for the latter dis-
trict had accorded him that precedence. The four judges,
namely, Chief Justice Rolland and the three other judges who
have just been mentioned, having deliberated on the matter,
the majority, that is. Chief Justice Rolland and judges Day
and Smith, decided against judge BMard and gave their deci-
sion in the form of an order, bearing date July 1st, 1848, and
entered at that date in the records of the court. Judge BMard
appealed against this order, by a petition addressed to the
Queen who referred the point in dispute to the Judicial Com-
mittee.
The Attorney-General and Sollicitor-General intervened in the
case and were heard on the petition, in support of which they
pleaded. The judges who had delivered the order also sent a
Letter.] Federal CkmstiM/Um. 119
petition sustaining their opinion but were not heard by Coun-
sel before the Judicial Committee, who made a report favora-
ble to judge B4dard and hostile to the order against which he
had appealed, and the report was confirmed by order in Coun-
cil.
{In re B^dard, 7 Moo. P. C. C. 23).
A person who thought he had a right to be admitted as an
advocate in the Royal Court of Jersey, presented a petition to
the Queen in Council, asking for the issue of an order to the
bailiff of the island, enjoining him to admit the petitioner to
take the oath as an advocate and to practice before the Court.
The petition was referred to the Judicial Committee and
made known to the bailiff who produced his reply, and the
two parties were heard by Counsel before the Judicial Com-
mittee who refused to entertain the conclusions of the petition.
(D'AUain v. LeBreton, 11 Moo. P. C. C. 64).
A Frenchman, by name Adam, having been banished from
the island of Mauritius by the Governor of the colony, referred
his complaint to the Secretary of State for the Colonie8,and,with
the concurrence of the Government, this complaint was sub-
mitted to the King on Council and referred to the Judicial
Committee for exa mination as to (1) the status of the petitioner ;
(2) as to whether the juridical rights inherent in that Status
had been infringed by expulsion from the colony.
It is to be noted that it was only on these two points of law,
and not to lay before the Judicial Committee the question of
justice or competency in the Governor, or the question of com-
120 Letters on the interpretation of the Third
pensation due the petitioner, in case he should be shown to
have been illegally expelled, that the reference was made.
The opinion of the Committee on both points was favorable
to the petitioner.
(460 In re Adam, 1 Moo. P. C. C).
A number of the inhabitants of the island of Cape Breton
petitioned the Crown for the restoration of the Constitution
which had been granted to them in 1784, and the rescission
of their annexation to the Province of Nova-Scotia which had
been eflfected in 1820.
The petition was based in part on legal arguments, and in
part supported by reasons of policy. It was referred to the
Judicial Committee with instruction to limit the hearing to law
questions and to avoid all political discussion. Notice was
also given of the reference of the petition to the House of
Assembly and to the Legislative Council of Nova Scotia and
they were authorized, if they deemed fit, to be represented by
Council in opposing it. They did so and after hearing of the
law officers of the Crown, of the people of Cape Breton and of
the legisl^ure of Nova-Scotia, the committee made a report
unfavorable to the petition.
(In re Island of Cape Breton, 6 Moo. P. C. C. 259).
Two colonies having entered into difficulties with each other
on account of an extent of territory that was in dispute be-
tween them, their respective governors agreed, with the consent
of their councils, to submit the matter to the Queen in Coun-
cil. After having proceeded with their evidence by means of a
Letter.] Federal ComtUviion. 121
joint commission and having transmitted it to the imperial
authorities, each governor presented his petition soliciting the
royal decision, and this was delivered on the report of the Judi-
cial Committee, to which the dispute had been referred.
(Case of Pental Island, O. C. January, 1872.)
The seven precedents which we have just cited show that
it is only in the exercise of the executive power and on q\ies-
tions of law, that the Queen in Council consults the Judicial
Committee and that the application of clause 4 of Guil. 4, c.
41, is limited to these matters.
The Crown does not refer to the committee even petitions for
the exercise of the royal prerogative of pardon, although such
petition may be submitted to it to obtain its opinion on some
point of law raised by the petition.
(The Queba vs. Eduljee Pyramjee, 5 Moo. P. C. C. 276.)
This clause, strictly speaking, was not even necessary to
authorize the reference which it sanctions, since, before the
reorganization of the Privy Council and the creation of the
Judicial Committee, reference of questions of law to the tribu-
nals was a frequent usage. It is a maxim of common law,
according to Sir Edward Coke, as cited by the authors who
have written upon the royal prerogative, and especially by
Blackstone and Chitty, that *' a council belonging to the King
are his judges in law matters."
(1 Ins. 110 — 1 Bla. 229, Chitty Prerogatives of the Crown, ch. 27, p.
409.)
It was only, therefore, to regulate the application of that
maxim to the Judicial Committee that the clause in question
'■;,:« ;,. _v;.V , ■' ■ y i; ■ .
122 LeUers on the interpretation of the [Third
was introduced. Besides, the members of the Judicial Commit-
tee who were not privy councillors before, become so by their
nomination.
VII.
THE REFERENCE OF CLAUSE 52 OP THE ACT OF THE SUPREME COURT
LAW CANNOT HAVE A WIDER APPLICATION THAN THE REFER
ENCE OP CLAUSE 4 GUIL. 4, C. 41, PROM WHICH IT IS BORROWED 4
DIRECT REFERENCE TO THE PRIVY COUNCIL IS NOT AUTHO-
RIZED BY THE CONSTITUTION, DEVELOPMENT.
The reference made by the Government of Canada to the
Supreme Court not having more effect than that made by
the Crown to the Privy Council, from which it is borrowed, it
follows that it cannot have more extension ; that it must be
limited to executive and administrative matters, and cannot
be applied to those that are within the jurisdiction of the legis-
lature, any more than to questions that arise as to the compe-
tence of the Federal and Provincial Legislatures, and which
relate to the extent of their respective powers, that is, to consti-
tutional questions.
The resolution of the House of Commons also mentions the
Privy Council as a tribunal to which the question may be
referred instead of the Supreme Court or conjointly with it.
Is such reference authorized by the laws of the Empire or by
the Federal Constitution? By the former it is not so expressly
and there is nothing in the Federal Constitution that could
directly or indirectly furnish a pretext for it.
We maintain that there is nothing in the laws of the Empire
*!•
letter.] Federal ComtUution. 123
relative to the colonies which, beyond appeals, authorizes the
reference to the Privy Council of questions arising as to the
extent of the powers of their legislatures ; but, possibly, it is so
authorized by implication through the practice of the Judicial
Committee. The jurisdiction of that committee is mainly an
appellate jurisdiction* but it possesses also a jurisdiction of
first instance or an original jurisdiction.
The reference of the question by way of appeal to that
tribunal has been already adverted to and perhaps, we shall
revert to it later on. At present the question is whether it is
not of its competence as a tribunal of first instance, that is to
say, whether the Federal Parliament or the Legislatures may
not carry directly thither their conflicts as to their respective
jurisdictions.
We must, therefore, inquire what this original jurisdiction
or jurisdiction of first instance is, and in what cases it is exer-
cised. The authors who have written on the subject assert
that it takes place by virtue of statutory or common law, and
that it is exercised in two cases. The first of these cases relates
to causes concerning the confirmation and extension of patents
for new inventions, in accordance with 5 and 6 Guil. 4, c. 83,
passed in 1835, and which created this jurisdiction; the second
is thus defined by a modern author in a work on the subject,
who has borrowed his opinion from Blackstone: " The subject
of the following pages is the form and manner in which the Queen in
Council practically exercises her jurisdiction in appeal and her
original jurisdiction founded upon the principles of feodal sovereign-
ty, in the case of dispute between two provinces out of the realm, or of
any rights claimed under i. 'Ms from the Crown.
(Macpherson, Practice of the Judicial Committee. Introduction,page X.)
124 Letters on the interpretation of the [Third
Wheneoer also a question arises between two provinces in America
or elsewhere as concerning the extent of their charters and the like,
the King in his Council exercises original jurisdiction therein upon
the principles of feudal sovereignty. And so likewise when any person
claims an island or a province in the nature of a feudal principality,
hy grant from the King or his ancestors, tJte determinaiion of that
right belongs to His Majesty in Council : as was the case of the Earl
of Derby with regard to the Isle of Man in the reign of Queen Eliza-
beth, and the Earl of Cardigan and others as representatives of the
Duke of Montague with relation to the Island of St. VincerU in 1764.
(1 Bla., 131 Com. 426.)
The application of this opinion of the prince of English juris-
consults, which is found to be supported by no other precedent
than the island of Pental above cited, seems at first sight rather
obscure. Nevertheless, the nature of this precedent compared
with the text and with the development that the author has
made of it leaves hardly any doubt that by " the extent of
their charter ", the author meant the territorial extent, that is,
the territorial extent of the charters of provinces and not the
extent of their legislative powers. Every one knows that in 1765,
which is the year of the publication of the first volume of Black-
stone's commentaries which comprises this opinion, there were
between the British colonies in America and especially those
of New England, numerous conflicts relative to their territorial
limits, and it was quite natural that those conflicts should be
referred to the British Privy Council. Two other reasons, fur-
nished by the author himself, agree with this interpretation.
The first is drawn from the very nature of the question sub-
mitted to the jurisdiction of the Council, consisting of a dispute
between two American provinces, which dispute could have no
Letter.] Federal QmstitiUion. 125
reference to conflicts of legislative jurisdiction at that time,
since each legislature was independent of the others and that
in the unitary governments to which the English provinces were
then subjected, such conflicts were impossible.
The second reason is deduced from the title attributed to the
King in taking cognizance of the dispute, namely his title to
the feudal sovereignty, or, in other words, his title of suzerain
or dominant lord of the fief. In feudal law, the principles or,
at least, the fictions of which are still in usage in England,
there is the following provision : that the King is universal lord
and primary proprietor of all the lands of the Kingdom, and
that no person possesses any portion of them which does not
proceed from him as a gift and at the charge of military ser-
vice. Thence arises the right of the British Sovereign to pro-
nounce judgment as to disputes arising between provinces
touching the extent of the territories covered by their charters
as well as questions regarding the ownership of fiefs. It was
this principle which directed the reference in the matter of the
Island of Pental, and the decision rendered by the King in
Council in the cases of the Earls of Derby and Cardigan, cited
by Blackstone.
In the third place it is impossible to suppose that in enacting
the reference, the House should have meant to do so in a case
not recognized by law, and that, on the other hand, it should
have wished to efiect an abdication of sovereignty and to aban-
don to the British Privy Council a decision which is one of its
grandest constitutional privileges, that of making its own laws ;
that, in order to elude an embarrassing question the members
for the provinces to the Federal Parliament, those for Quebec
126 Letters on the interpretation of the [Third
especially, should, in a moment of deplorable forgetfulness,
have sacrificed the fruit of labours which had engaged their
fathers for generations, that of self-government, and, for a
transitory interest, have made shipwreck of a liberty so dearly
won!
This language, however severe it may be, would be more
than justified by the event, if those who voted the reference,
had meant to make it direct and not rather await the ordinary
and contentious action of the tribunals, to model their legisla-
tive conduct upon the decisions thus rendered I
We have seen how reference is made by the Federal Govern-
ment to the Supreme Court whose opinion is sollicited, and that
this opinion, not obligatory for the Government, is still less so
for the legislature. Of that reference to the Supreme Court it
may be said, as has already been said of the reference to the
Privy Council, that it participates in the nature of references
to the law oflftcers of the Crown.
Need it be said that it is otherwise with the contentious ju-
risdiction of the Judicial Committee, in cases in which
that jurisdiction has been conferred upon by statute — the
above mentioned case of confirmation or extension of patents,
for example — or by common law, as in the somewhat obscure
case of the dispute between the provinces cited by Blackstone ?
It is true that in these latter cases as well as in that of admi-
nistrative reference, the committee renders no judgment, pro-
ceeding simply by report, but the report is a matter of form
and the sovereign would not be justified in refusing to confirm
it by a formal judgment, while it is not so in the case of
Letter.] Federal Cbnstitution. 127
voluntary reference, in which, though there is almost always
confirmation by the Privy Council, that confirmation is only
discretionary and does not become legally binding.
If we apply these considerations to the reference to the
Supreme Court, what would be the result ? Would that refer-
ence made in a matter of legislative jurisdiction, be lawful for
the Federal Government?
VIII
BY VIRTUE OP CLAUSE 52 OF THE SUPREME COURT ACT, THE FEDE-
RAL GOVERNMENT HAS NOT THE POWER TO REFER LEGISLA-
TIVE QUESTIONS TO THAT TRIBUNAL.
Let us specify the question.
In the actual state of legislation, has the governor in coun-
cil, or, which amounts to the same thing, the Federal Govern-
ment, the constitutional power, by virtue of clause 52 of the
Supreme Court act, to refer to that court questions arising
out of legislative conflicts or between the Federal Parliament
and the Provincial Legislatures, and, especially relating to the
competence of the former on any given subject, and what would
be the effect of the court's opinion on the deliberations of Par-
liaments?
First of all, the terms of clause 4, which says " that it will be
lawful for the Governor in Council to submit to the Supreme
Court for hearing or examination all questions whatever that it
may judge fit," are so coir»prehenaive that they do not seem to
128 Letters (m th£ interpretcUwn, of the [Third
admit of distinction. Nevertheless the spirit of a law modifies
and restricts its range, and the execution of a similar law
passed in England will aid our inquiry into the intention of
the legislator and exercise a great influence on its interpreta-
tion.
On that score, clause 4 of the Imperial Act 3 and 4
Guil. 4, c. 41, to the intent that "it shall be lawful for the
King to refer to the said Judicial Committee for hearing and
consideration any other such matter whatever as His Majesty shall
think fit," from which our clause is copied, is restricted in prac-
tice to executive and administrative matters, as we have
already seen. The seven cases of reference made in virtue of
this clause which we have quoted all relate to questions of
that kind. If we examine all the precedents on the subject,
we shall not find a single one relating to legislative matters.
Not even all administrative afi'airs or everything trenching on
the executive domain is included in it, as the exercise of the
royal prerogative of pardon is never referred, as we have
already seen.
The application of Statutes is everywhere subject to a
necessary restriction, whenever their literal application extends
beyond the circle of subjects foreseen by the legislator or exceeds
the aim of the law. Simple good sense commands this limita-
tion. A law may subject the subordinate functionary to the abso-
lute authority of the magistrate, a soldier to that of his general
officer, an employee of a public department to all orders of
his chief of whatever nature, but is it not evident that this
authority and those orders must be executed only for the
needs of the judicial, military and civil service ? The object
and aim of the provision in those cases restricts its application
letter.] Federal Constitution. 129
The Governor in Council, that is, the Federal Government,
is authorized to refer any question whatever to the Supreme
Court. This reference, to have a useful purpose, must be sub-
ordinated to the objects that fall within the sphere of its powers
and duties, and be ordered to favour the execution of the
former and the accomplishment of the hitter. It is in the inte-
rest of the Executive Government of the Dominion and to
ensure its efficiency, that the Executive Council is authorized
to consult the Supreme Court on doubtful questions of law and
to profit by its superior legal knowledge. But the subjects on
which the opinion of that Court is requested must be circum-
scribed within the sphere of the Government's own functions.
Now those functions are all administrative and limited to the
domain of the Executive Power, without authority in any way
to encroach on the legislative domain. The Legislative Power
and the Executive Power being essentially distinct, it is only
by an accident attributable to the exercise of responsible gov-
ernment and not to the nature of the attributes of the two
powers, that ministers, as members of the legislatures, take
part in legislation, which, according to the doctrine of publi-
cists on the division of powers, is altogether alien to them.
The reference of article 52 is not. then, made for legislative
questions, not to guide the legislatures, whose independence
would be unfavorably afiected or even destroyed bv an alien
influence.
Tt matters little that the House should have .«eemed to hav*'
but a vague idea of the nature of tlie reference and that thf
author of the amendment proposing it, Sir Hector La ngevin.
and Mr. Girouard, who supporter! that amendment and niain-
9
130 Jjetters on the interpretation of the [Third
tained the constitutionality of the Federal License Law, should
both have seemed to ignore the contentious reference and sus-
tained the voluntary and direct reference to the Crown ; the
presumption that the House did not mean to adopt a measure
legally impossible and unconstitutional will always prevail.
IX.
DIVERSITY OF OPINIONS IN THE HOUSE AS TO THE MODE OP
REFERENCE. TWO SPEECHES ON THAT SUBJECT.
It would, however, be difficult to reconcile the diversity of
views of the two members as to the steps to be taken in order to
legiilize the reference. The report of V Etendard, to which we
are indebted for an account of the debate, makes the Minister
of Public Works say : " In this manner we shall obtain a deci-
" sion from an adequate tribunal. We shall obtain a decision
'• from the Supreme Court on the question that the Government
" Avill submit to it," and if we are not satisfied with that court,
'■ we can go to the Judicial Committee of the Priv> Council.
" or we can have a decision from both tribunals ; but. at any
'■ rate, we shall obtain a legal decision of authority on the
" constitutionality of that Act."
" Mr. Girouard. — 1 will vote withtiut hesitation for the
" amendment of the Minister of Public Works. Not having
'• before us a decision on the constitutionality of the Dominion
" License Act, I think we ought to thank the (Government for
" preventing so much discussion between the Provincial Gov-
'' ernments and the inhabitants of the provinccH (sic)." (I pre-
sume that the speaker has been wrongly reported and that he
Letter.] Federal Constitution. 131
said : " between the Federal Government and the provinces.)
" Instead of having numerous suits and special pleadings in
" the different provinces, we shall have only one case and the
•■ suit will not commence in an inferior court to be after-
" wards carried to a higher court. We shall proceed at once
'• before the highest court in the country, the Supreme Court
'* of Canada.
• Mr. Blake.— How?
'' Mr. Girouard. — We shall provide for it by a bill. It cannot
'' be done otherwise. I say that it shall be by a bill, for I do
•• not know of any other way in which it can be efifected.... I
" will not take the opinion of this Parliament en constitutional
" (lucstions as a binding authority. I maintain that the tribo-
" nals of the country constitute the only known authority for
•' the decision of constitutional questions.
'' Last year when we had a debate on the King's County (P.
•• E. I.) election, certain statutes were cited as unconstitutional,
" but I said then that we were not the authority which should
" decide the unconstitutionality of those statutes, and that,
" consequently, as far as I was concerned, I would consent to
'' accept them as the authority of the country until the consti-
" tuted authority, that is, the courts of justice of the country,
" had decided that they were not constitutional.
" We have no authority to do that. The courts of justice
'' alone have the right, and T approve of the measure proposed
" by the Hon. the Minister of Public Works, which is to carry
'* the case before the Supremo Court, and to do so immediatly.
" This case will Vje taken before the Supreme Court and the
132 Letters on the interpretati' n, of the [Third
" local legislatures shall have the right of being represented by
" counsel and to lay their case before that tribunal. I hope
" they will do so and that the wliole question of jurisdiction
" between the Dominion Parliament and the Local Legislatures
" will be discussed. We have an admirable Constitution. We
" hear the cry of centralizing tendencies in the Dominion Par-
" liament, but such centralization is impossible.
*' We have courts of justice to decide with whom the power
" lies, whether with the Provincial Legislatures or the Doini-
" nion Parliament. In that case the Supreme Court and, I
" also hope, the Privy Council will take the question into con-
" sideration; for, as the honorable member for Quebec Centre
" (Mr. Bosse) has remarked, the people of this country have
" the utmost confidence in the decision of the Privy Council,
" and that is another reason why this question should be finally
" referred to the Privy Council.
" If we wish to have a final decision, if we wish the inhabi-
" tants of the country to submit to the settlement of this case,
'' we ought to have the decision rendered by the Privy Coun-
" cil; without that, they will not submit to the decision of the
" Supreme Court and they will ultimately appeal it, in their
" private cases, to the Privy Council, for the settlement of the
•' question now under consideration.
" For this reason, I will vote in favour of the amendment of
•' the honorable Minister of Public works, and, as I have said,
" the members for the Province of Quebec, who are more
•' anxious, perhaps, than those of the other provinces, to have
" their rights maintained, will vote for this amendment; for,
Letter.] Federal Cmstitution. 188
" in the future, when certain rights more sacred than the liquor
" trafic shall be in question — I hope that time will never
'• come — the members for the Province of Quebec will be able
"to rise in Parliament and say: 'Lei m refer this important-
" question concerning our insiiiutlons, our religion or our language
" to the decision oj the Supreme Court and of the Privy Council,"
" and I have no doubt that, berore that tribunal, the Province
" of Quebec will obtain jusL^ce as well as the other provinces.
" For these reasons I shall vote for the amendment of the
" Minister of Public Works."
ft
T. J. J. LO RANGER.