THE EXECUTIVE POWER CASE. THE Attorney- General of Canack I vs. The Attorney-General of Ontario. ^^ PRESS OF THE BUDGET, 27 MEMNDA STREET. 1892. PREFATORY NOTE. ^£f H I S was an action seeking a declaration that the Ontario Act, 51 Vict. Cap. 5, respecting the executive administration of the Laws of Ontario, is ultra vires of the Provincial Legislature. A copy of the Act is appended. The Chancery Division, composed of Boyd, C. and Ferguson and Robertson, J. J., decided in favor of its validity. An appeal, argued before Hagarty, C. J. and Burton, Osier and Maclennan, J. J., by C. Robinson, Q.C., and Lefroy for the Appellant, and Edward Blake, Q.C., and Irving, Q.C., for the Respondent was dismissed. This print of the argument in Appeal by Counsel fo: Ontario is from Mr. Nelson R. Butcher's excellent report, which the speaker has revised. He regrets that time has not served him to condense it, by eliminating the frequent redundancies of phrase and reiterations of argument, which, however allowable and even essential in oral discussion, become alike needless and tedious in a printed dissertation. Though sensible of its many imperfections, he has been encouraged by the interest taken in the prints of The Ontario Lands Case and the Provincial Offences and Procedure Case, to submit to the indulgent consideration of Can- adian jurists and public men this attempt to investigate, from the Provincial point of view, the scheme of our Constitutional Act for the distribution of Executive power. HuMEWooo, Toronto, January, t8q3. 51 VIC, CAP. 5. ONTARIO. A/i Act res/>cctini^ the Executive Administration of Laws of this Province. Whereas by Section 65 of The British North America Act, 1867, it was provided (among other things) that all powers, authorities and functions under which any Act of the Parliament of the United Kingdom of dreat Britain and Ireland, or of the Legislature of Upper Canada, Lower Canada or Canada, were before or at the union vested in or exercisable by the respective Governors or Lieuteuant-Ciovernors of those Provinces should, as far as the same were capable of being exercised after the union in relation to the government of Ontario and Quebec respectively, be vested in and exercised !)y the Lieutenant-Covernor of Ontario and Quebec respectively, subject, nevertheless, to be abolished or altered by the respective Legislatures of Ontario and Quebec, except with respect to such as existed under Acts of the Parliament of Creat Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland. And AVhkkeas by Section 92 of the said Act, it was provided that in each Province of the Dominion of Canada the legislature may exclusively make laws in relation to matters coming within the classes ot subjects thereinafter mentioned. Therefore Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : — 1. In matters within the jurisdiction of the Legislature of the Province, all powers, authorities and functions which, in respect of like matters, were vested in or exercisable by the Governors or Lieutenant-Governors of the several Provinces, now forming part of the Dominion of Canada or any of the said Provinces, under commissions, instructions or otherwise at or before the passing of the said Act are, and shall be (so far as this Legislature has power thus to enact) vested in and exercisable by the Lieutenant-Governor or Administrator for the time being of this Province, in the name of Her Majesty or otherwise as the case may require; subject always to the Royal Prerogative as heretofore. 2. The preceding Section shall be deemed to include the power of commuting and remitting sentences for offences against the laws of this Province, or offences over which the legislative authority of the Province extends. 3. Nothing in this Act contained shall be construed to imply that the Lieutenant-Governor or Administrator has not had heretofore the powers, authorities and functions in the preceding two Sections mentioned. Tim I'Xi'CUTivi-: powI'R casf.. ARGUMKXT. Mk. lii.AKi;. — My I-ords, the Act here complained of is, .'111(1 can be, complained of oidy on the f^'round that it is, in wlioh; or in part, heyond the powers of the legislature which passed it. I quite aj;ree that, if my learned frienils are ahle to demonstrate that it is in some one particilar beyond those pow- ers, the law ^;ives your [.ordsl.ips power to decide that the lej^islation is, so far, bad. I agree further, that if it is beyond those powers in some particul.ir, not separable from the other parts of the Act, whv, of course, tliat \-ice being, c.x liypothcsi, communi- cated to and permeating the whole legislation, the whole is bad. f-tiit, after all, it is only on the ground that the legislation is, in whole or in \r,\n, outside of thelegislative power, that your Lordships can intervene. The law therefore may be wise or foolish ; it may be, in a sense, jirejudicial or bene- ficial to the Dominion t)r tothe I'rovincial interests; it may be vague and uncertain ; it ma)' sin against those canons for the framing of I'rovincial laws which my learned friend has indicated in tlie course of his argument, with the suggestion that they sliould perhaps be even enforced by the Courts, namely, that such l.iws must be vf!ry precise, must be very clearly and ilistinctly within, else they are to be held to be beyond the I'rovinci.il powers ; it may sin against such canons as these ; but still, with these suggestions, I submit, the Court has no concern. The question I repeat is, whether in some one or more particulars Counsel are able toconvince the Court that the law is outside the power of the I'rovince ; and, in answering that (juestion — so far from acting in the spirit in which my learned friend invited the Court to act, of invoking alleged vague- ness, alleged uncertainty, alleged comp-'ehensive- ness, alleged difiicnities in ascertaining how much is embraced in or excluded from the operation of the statue ; and en such grounds declaring it to be outside the power — it is clear that the ("ourt should take oyiposite methods of approaching the subject : that, if there be two feasible constructions, that one should be adopted, which is consistent with the validity of the law ; and that all presumptions and intendments, which can be fairly and reason- ably made in favor of the legislation, should be so made. These rules have been laid down re- peatedly. I refer your Lordships to the very early case of Severn v. the Queen, i Cart., page 41.^, in which Strong J. indicates the general principle: — It is. I consider, our fluty to make every possible pre- sumption in favor of such Legislative .Acts, and to endea- vor todiscover aconstniction of theHritisli North .Vmerica Act which would enable us to attribute an impeached statute to a due exercise of constitutional autlioritv, be- fore takingr upon ourselves to declare that, in assumine; to pass it, the Provincial Leejislature usurped powers which did not legally lielonsr to it : and in iloing tliis. we are to bear in mind " that it does not belong to Courts of Justice to interpolate constitutional restricti.ms ; their dutv being to'apply the law, not to make it." It must, there- (nr(;, lu-fore we can deteriiiine th.it lli.' I.igisl.itiirc ot tlie I'rijviiue of Ontario had (.'XcvfcliMt tlu'ir |M.ufi« in ii.issiiin tiiis .Act, lie conclusively slmwn th.it it (.uiiiot l)e cl.issed under any ot tlu' subiecls nl knishition i-n- iiniL-rated in section 42 of tlie Hiilisli .N'ortli .\iueric.i .'\ct. wiiicli is to be re.id .is an exception to tiie prccudiiin section. .Vnd, in the late case which has been more than once aiherted tt) in this argument, Tiie Qiuin n. Wnsou, your Lordship, Mr. ) ustice 1 liirtou s.iid : — I'crhaps there is no rule more clearly and universally acknouledseil in regard to the judicial I'oiistnictioii to lie placrd uiioii statutes wlu-n tlie Ccuirls .uc i.illcd upnii to deride w lielher the siiliji'Ct matter tieall witli is « itiiiii the cniiipi'tence of tlie particular Leijislatiire which passed them, tluiu this -.—that in cases of (liiiil)t, every possible prcsumiitioii .iiid ir dment will be made in favor of the constitutionalitv oi le Act in (luestiun, and so on. Now, looking at this law from that, which I have just shown is the proper point of view, let usinijuire what tlu; Legislature does purjiort to do. The pre.imble gi\es accurately the elli^ct of the r>5th section of the Hritisii North .America .Act. .\fier that accurate recital, the first cl.uise ])urports, by a general reference, to vtist in the Lieutenant -Covernor certain powers, authorities, and fiuutions. The third clause repudiates any inferenci; that the Lieu- tenant-Ciovernor was not theretofore posst.-ssed of these functions. 'I'herefore the .Vet is, perhaps, by the combined oper.ition of the first and third clauses, turned into a declaratory law, so far as declaration may be useful : as well as an enacting law, so far as enactment may l)e required ; the com- bined operation of those two clauses producing this result. I reserve the second clause for separate con- sideration ; and, taking the first, and infpiiring only what extent of power is assumed , I propose to show your Lord ships that by express terms nothing is attempted which is beyond the power of the Legis- lature ; of which proposition there are no less than four distinct indications contained in the statute. First, the preamble, as I have stated, accurately recites the si.xty-fifth section of the JJritish North America Act ; and thus shows that the powers which are referred to are such as existed at the Union, and in so far as the same were capable of being exercised after the Union, in relation to the Governments of Ontario and (,)uebec respectively. That is the description which is incorporated, for the whole purposes of the statute, of the class or kind of powers touched ; and if throws, as I contend, a clear light on, and gives a distinct interpretation to any general words in the enacting clauses ; show- ing, as the Court is entitled to conclude, that the powers spoken of therein are powers of the char- acter referred to in the preamble, namely, " those capable of being exercised after the Union in rela- tion to the (ir)vt:innit!nt of Ontario." Tliat is the first indication. Sfcondly : 'I"h(! first claiisr he^iiis l)y this limi- tation of its sul)ji!(ts "111 inatti-rs williiii th<! jurisiiiction of tlu; I.tiKisUuurt! of tht; I'rovincf;." That alone wonid Im- t-nouuli ; for, to any niatttT uliiili is not within tlit- jurisdiction of th(' I. f^isla- tnrt' of tlu! l'ro\incf, the clause, by its terms, has no ,i|)|ilitMtion wh.iifvcr So, having first found the r.uiKi' of purpose by refcirence to tiie preamble, \<)U j,'et the second limitation, " In matters svithin the jmisdiction of the Lej^islature of the I'ro- vi ice." Hut, Thirdl)', to itiaUe assurance trebly sure, a further limitation proviiles that the prescribed powers shall be only " so f,ir as this Legislature has power thus to enact." What is the effect of that ? It is, clearly, that if any one of the powers which are mentioned in any one (if those Commissions, Instructions, or other documents, which ;ire dealt with by general refer- ence, would be b(!yond the comjietence of the Legislature; to vest in the Lieutenant-Governor, that one is, in terms, excluded. Suppose you find a particular Commission which contains twenty powers given to a Lieutenant- Crovernor ; and, of these, nineteen are not such a.s the Legislature could vest in the Licutenant-Ciov- ernor, not such " as had relation to the Govern- ment of the Province of Ontario,"' not such as " the Legislature had power to enact," the nine- teen are not attempted to be embraced ; thev are in terms excluded ; there is no effort to introduce them ; there is a successful effort to omit them ; and it is the single remaining power, that which alone is witiiin the authority of the Legislature, which alone is introduced. Lxcept for the sug- gestion made by the Appellant that this bit of legis- lation cannot be accomplished, save in connection with some particidar act of legislation of another description under Section y2 of the B. N. A. Aci, it is not denied that there are powers which may be vested in the Lieutenant-Governor, powers ne- cessary to carry out, or useful to carry out, or proper in the opinion of the Legislnture to carry out its legislation. It is indeed suggested, and with that I shall deal later, that the Legislature cannot grant these powers, irrespective of or un- connected with some contemporaneous act of legislation of its own, dealing with the topic ; that it is only as incident to such dealing that it can grant these powers. Putting that by for o;ie mo- ment ; assuming that there is, as I think there is, no force whatever in that argument ; it isconceded, that there may be an Act of the Legislature handing over to the P'xecutive of the Province, creating in the I<"xecutive of the Province, an authority to do some things which are necessary or proper in order to carry out some legislation which it is in the power of the Legislature to enact. So that there may be — and that is quite enough for my purpose — there ma*' be powers which the Legislature may vest in the Lieutenant-Governor. It is not at all for my learned friends to say, as they do say. that thev are not to be put to the inconvenience of ran- sacking the Commissions, Instructions, pnd various documents to which general reference is made, in order to ascertain what powers are given to the Lieutenant-Governor. If it were the function of this Court to decide whether the legislation was neat, whether it was in the most convenient shape, whether it was precise, whether it was capable of being improved in form, I could understand my learned friends arguing, and arguing with very considerable force, in lavor of a schtrduU-:, in favor of a list of functions, authorities, and powers with which the Legislature proposed to invest the Lieu- tenant-Governor. IJut we are not here to criticize the legislation, ;ind the (!oiirt is not here to ilispose of the ([uestion, on grounds of convenience, neat- ness, form, or precision. It is enougn to say that whatever the Legislature can grant of executive I'ower to the Lieuten.int-C>o\«,'rnor under tin; law and constitution, it does gr;int ; and that it grants no more. It is for my learned friends, who allege that this clause is iilltti vin-s, to show affirmatively that there is no power which the Legislature can constitutionally grant to the Lieutenant-Governor. It may be that if my learned friends had proctied- ed to demonstr.'ite by an exhaustive process that there was nothing in any Ccimmission, in any In- struction, in any document, in ;iny form, underany state of circumstances, nothing whatever which could be vested in the Lieutenant-Governor, there would be some force in their argument that the mere saving clause " so f;ir as the Legislature lias power to enact the same " ought not to protect the statute from a rieclar.-ition of the Court that it is a statute beyond the power. Hut, wheth.er it be con- venient or inconvenient so to guard itself, wlumever the Legislature has chos(>ii so to guard itself, it is for those who attack the statute as beyond the power to show that there is nothing at all in any of the various subjects which are incorporated in the clause, within the power, in order that they may be able to obtain a declaration from the Court that the clause is beyond the power. Now, there is yet another limitation. I said there were four. The Fourth is that the legislation is "subject always to the Royal prerogative as hereto- fore " So that if there beany portion of the Royal prerogative which is, at the moment, lawfully in the hands of Her Majesty individually, or in Her hands on the .advice of the Imperial Privy Cc^incil, or in the hands of the Governor-General as Her repres- entative, individually, or on the advice of the (Hieen's Privy Council for Canada, that portion of the prerogative is left intpct ; and capable of con- tinued exercise. There is no assumption f)f exclud- ing the Royal prerogative. There is an assumption of giving powers leaving the Royal prerogative in- tact ; as has been done in fari matcr'ui ; as I shall show your Lordships when I come to deal with the statutes on the subject of pardon, which provide a double or alternative method of action ; which allow of a local dealing with pardons, and which allow alsoof a dealing with pardons by thelmperial authorities, for the same offence. The result then is that the Royal prerogative is saved ; and, being saved, yet some power is assumed to be given to the Lieutenant-Governor. Now, an interference to exclude the Royal pre- rogative, an Act not containing that express saving, and which, not containing the saving, had, expressly or impliedly, excluded the Royal prerogative, might or might not have been successful. There is quite enough to treat here without entering into the dis- cussion of that question ; needless here, because it is not here attempted to exclude the Royal pre- rogative. If the Royal prerogative is to any extent affected, it is afiected only by lodging some power to pardon in the Lieutenant-Governor; leaving any right there may be in the Queen or in the Queen's representative, under the constitution, untouched. These, also, may, notwithstanding any words in the Act, pardon if they please. It might be sup- poseil that tliis would be .i very inconvenient plan ; l)iit there was a reason, as will ajijiear later, a very obvious reason, why, when the powtT of p.irdon was dealt with by lenisl;ition here, somi! power should still be reserved and maintained in the; hands of the Imperial authorities Hut, I ask y<iur Lordships to mark that there is no need here for doinf{ what has betMi frecpiently ilone, implying a saving of the preorogative ; because the saving is express. |!pon the general (piestion of the effect of limited legislation, I desire to refer to some observa- tions in tin- case of Munkliotisv v. The (irnitd Trunk Railuny. I take all my citations, in the numerous cases in which that is possible, from Cartwright. I ([note from ^rd Cart., at page 294 ; the language of Patterson, J. : — 'I'lie Statute in (iiicslion, 44 \'ic., cli. 22, lias l)i rii sixikcn i\\ Ay itlira ; in s (if the ()nl,iiiii I e(^i^lalllrl■. Wlutlu'r it is ^(1 or not ilciieiuls iiikhi tlie interpretatidii wliii '1 is put .ipdii it. It professes, in sec. 2. to apply its provisions to every railway and railw.iy company ni respect of which "the I.eRisl.itnre of Ontario has authority to enact such provisions respertivi'lv." Keadint; this literally, no (|iiestion of virfs ran arise. Neither can si;ch a (|iieslion be rea'-<inalilv suggested if the enactment is iiiulerstooil to relate to those railwa'.s <inly to which the leRislative antlioritv ot the I'roviiice is rcstricteil hy the exception conlaineil in the tenth article of section 42 of the It. N. \. .Act, coupled with the 2yth article ol sec. 91. Hiit. if it can he taken to contenijilate all railways in the Province, it may well be asked it juris- diction to pass the Act existed. 1 do not see that the .\ct can be properly read except in one of two ways ; either as intended to ({<ivern all raihvavs in the Province, or as con- fined to those which are not covered by the exception in article 10. To attempt to construe it nn)ro literally, wciuld. in my iud(;ment. lie to treat it as so uncertain as to destroy its value as a piece of practical U'Kislation. \'iolation of its jii.indates or iirohihitions wuiild be punishable by indictment ; and it cannot be .issumcd that the LeRislature inteiuled to throw uiion any company the task and the risk of deciding whether it was, or was not. aimed at as one with respect to which there was authority \o enact all or anv one of the provisions of the .Act. There must be some criterion cajiable of being iirecisely stated, which the Legislature must be supposed to have had in view. The language employed in the second section shows that all railways were not aimed at. while the limited class is not indicated in any other way than by the general reter- encc to the legislative jurisdiction. I think the only way to give a practical construction to this is to understand it as referring to the terms of the B. N. A. Act. and thus as intended to affect onlv those railways over which the Legislature, under the tenth article of section 02, had exclusive jurisdiction, because situated wholly within the Province, and not declared by the Parliament of Canada to be for the general advantage of Canada, or for the ad- vantage of two or more of the Provinces. So your Lordships see the learned Judge thinks that a provision, touching every railway ccimpany in respect of which the Legislature has authority to enac* such provision, embraces a definition limiting the provision to one p.-irticular class of railway companies. He gives to the language of a clause, drawn almost word for word as this clause is drawn, that limited interpretation which was needed to make the clause cperative and effective. Then Mr. Justice Hurton at the same page, 294, indicates that the Ontario Act was intended to apply to those railways only which. under sub-section 10 of section 92 are pl.iced under their jurisdic- tion. namely ; those lying wholly within the Province, and not declared bv the Parliament of Canada to be for the general advantage of Canada, or for the advantage of two or more of the Provinces. That being so, the point which was mainly argued before us docs not necessarily arise for adjudication, and I abstain 'rom offering any opinion upon it. Spragge, C.J., at page 291 says : — The short Question is. whether the Act of the Legisla- ture of Canada, under which this action is brought. applies to the Grand Trunk Kailway Company. The cjuestion assumes this shape because the Act itself, in terms, applies only " to every railway aiul r.iiiway company in respect of which the Legislature of (intaiio has authotity to enact such provisions," ami the iiKpiiry is, whether the Provin- cial Legislature has .iiitliority to apply the provisions ut the .\Lt uiuler which the .iction is brought to thedulend- .mis. I'lie solulion of the question lies iu the intiriiieta- tion proper to be put upon sections m and 92 of the It.N. A. Act. The Court at once proceed to eiupiire whether the Legislaturt; had authority to ajiply th.at Act to the Cirand 'I'runk. If it h;id not, the .Act does not ;ipply. Why ? Because the Legisl.iture luis said, we apply this only to the railway coni|)anics in r:;- spect to which we have authority to enact. .\ strong indicati<in of tlw effect of a saving of the prerogative is to be found in the construction which lias been finally put u|ion the 71st section of the Sujireme and ICxchequer Courts .\ct as originally ]iassed. Your Lordships will remember that sec- tion ;— The judgment of the Supreme Court shall, in all cases, be hn.il and conclusive, and no appeal shall be brought from any iudgnieiit or order ot the Supreme {. onrt to any t'oiirt of .Apiie.il established by the Pailiament of tlreat Irclaiii' Cmnu il may lie ordered to lie liearil ; saving any right which Her ,Vlajestv may be graciously pleased liritaiu and Majesty in Cmnu il ma to exercise by virtue of Her Koyal prerogative. I'or some lime considerable doubt was expressed whether under this clause, t;iken as a whole, the ap- peal tothel'rivy Council was not barred; and the fate of the .\ct was for a while doubtful. The ultimate decision of the Imperial legaland executiveauthori- ties was,in accordance with the views pressed upon their attention, that the saving of the prerogative was full, entire, and effectual ; that, while the clause interfered with any st.itutory provision which might have been ntade, it left Mer Majesty a f !! di.scretionary right to direct or to allow any appeal to herself to be heard, as before. Hi.'RTON, J : — The members of the Judicial Com- mittee said it was rather too late in the day to raise that (juestion. It had granted a number of appeals in the meantime, therefore they said it is not necessary to pronounce any opinion upon that, because after this lapse of time we certainly would not give effect to this objection. Coi:nsi;i, — I happen, personally, to know, having been engaged oHicially in that discussion, that the opinion of a very eminent Lord Chancellor, Lord Cairns, expressed and acted on at an early day, was that, under the true construction of the .Act, the rigtit of allowing appeals remained. Indeed upon that (piestion — 1 suppose at this time of day there is no harm in saying so — the fate of the Act appeared to depend. That was the view which, a'ter discussion, was adopted; the view under which the objection which had been supposed to exist to the Act was withdrawn ; and of course that construction must now at any rate be taken to be the settled law. I submit that it is perfectly clear that the first clause, speaking as it does only in general terms, and subject to those four limitary provisions to which I have referred, isiiitra fires. It is needless to go into an enquiry — my learned friend has not attempted to enter into an enquiry ; he says it is an enquiry into which he cannot enter, because he does not know what these powers are — but it is needless to go into such an enquiry ; as needless as it would be tedious. It is needless; because the powers which are granted are only such as the Legislature has authority to grant, and only in 8 matters within tlu! jurisdiction of the l-eK'islaiiirc, and only in matters relatin>{ to the government of tile Province, and only siil)je(:t to the exercise of the Koy.il preroi^.itivt;, as heretofore ; and, ail this liein^' so, the ("ourt will not attempt to i^o hctyond the neL(i->siii(:s of llie case; will not attempt to fraiiit! ,1 sohiniiih', or to draw a line ; hut will say that it c.iiinot pronounce the lirst section of this law to l)(; nittii vires. If at any time ;i Lieutenant-Governor of the I'ro- vince assinnes to exercise under this section a pow- er, beyond the le).;islative jurisdiction of the I'ro- vince to confer, he cannot even set up this Act. He can, under this Act, justify only such powers as are within that jurisdiction. No mischief, therefore, can result; no excess of power can he even prima fitiic warranted , and thus noconclusion cm he re.iched s.ive that the judgment below is in this respect correct. llAdAii rv, C". J , — .V very excellent ar(»ument in favor of its not being necessary for us to consider that hrs. clause. ("oi'NsKL— Certainly my Lord. Th.it is my first position. II A(; \i< IV, (,". J.— 1 asked Mr. Robinson, where the subjiict matter was clearly without their juris- diction, yet if they say " if we have power to enact we do enact " so and so, whether that would make the Act bad or good. My view ran in l.ivor of the Court not having to enter into what I would call a mere abstract discussion, fcjilowing what you have s,iid. Coii.NSKL — The qu"stion can arise only in the concrete; anil the instant that harm is attempted to be done under the .\ct the attempt fails ; be- cause the power which the Limitenant-Cioxernor assumes to exercise is either given to him by the Act, or it is not. It is not even as^uiined to be given to him, unless the LegisLiture had power to give it to him. They have not assiumed to give anything they had not power to give; therefore no harm can be done under colour of the .\ct. If he trie; t.T do a thing which the Legislature could not assume to give liim power to do, the .\ct does not givj even a prima facie warrant for his attempt. HAciAurv, C. J. — I agree in that, with all my heart ; I dread these sort of discussions, CouNsici, — Then, my I^ords, I proceed to treat the second clause, primarily, after the same fash- ion, and with the same purpose, for which 1 have been treating the first clause ; namely, just to find out how far it goes. How far does this second clan.se go ? It is clear that the same four limitations to which I alluded a moment ago applv to this clause ; that all the limitary provisions which are applicable to the first apply also to the second clause. What is done is to include in the first clause the power mentioned in the second clause. What does it say ? The preccdinpr section shall be deemed to inchule tlie power of commuting Jtiul reinittinjj so.itence.s for offences against the laws of this Province, or offences over which the legislative authority of the Province extends. Therefore, you read the clause in. You are to include it. You include it just as if it had been expressed, by adding after that general statement, " all powers, authorities, and functions, " including the power," and so forth. Then, it is only, (i), as expounded by the preamble, (2), as limited to mat- ters within the Provincial jurisdiction, (3), so far as the Legislature has power to enact, and (4), subject to the Royal prerogative as heretofore, that the power of commuting ,ind remitting sen- tences for ()flt;nces jigainst the laws of this Pro- vince, or offences over which the legislative author- ity of the Province extiMids, is given. Osi.Kk, J. -Vou do not read that scidiid clause then as a concretif instance of something that the first clause is intended to apply to .absolutely ' CoiJNSKi. -ll.irdly, my I.oid. I submit that is not the better construction. Tlie priieclinK Nectioii sh.il! lie deemed to iiicliule the power 111 loniiiiiitiiig .iiid reiiiiMittinu ^elltence^ lor nttiMii es agairl^t the laws <il tlii- Province or citfence> ovei wliii h the legislative authority ot tlie Province cxtentU. You cinnot do more than include it. It cannot be nioreethictive th.in its words. If you do iiulude it, it apiilits only, as I contend, to matters within the jurisdiction of the rrovince. ( )si.i;i<, J. — Is not the second clause ;i decl.iration that th.'it particular thing is within the jurisdiction ? ("ocNSKi.— I admit, my Lord, that it may fairly be held to be ,1 declaration that there is some one instance, at least, of commut.ition or remission of sentence for offences which is within the juris- diction HAfiARTV, C. J. — Oh, yes. Coi'.ssia, — I think, if your Lordships should hold that there is no one thing in the w,iy of commuta- tion, or remission, which is within the Provincial jurisdiction — this statute is an adirmation of the contrary view, namely, that there is some one such thing within ih.it jurisdiction ; and, if you find that there is nothing on which the law can operate, whether it comes withrn the technical terms of ultra vires ov not, certainly your Lordships are face to face with a practical (piestion ; and I think jj-ou might properly and usefully make the appropriate declaration. My position is not exactly th.it to which your Lordship Mr. justice Osier has pointed; it is rather that the .\ct limits the provision .is to the power of commuting and remitting sentences to those classes of cases, if any such there be, which .lie within the jurisdiction of the Province of Ontario, and operatesonly to the extent, however limited, to which the Legislature has power to enact. Hagaktv, C. J. — You meet his objection, that the words are wide. CouNSKL — Yes. My learned friend I think ad- mitted, or almost admitted that the Act would fairly operate on the remission of a fine. If you find one subject only upon which it can operate, it operates upon that subject, and upon nothing more ; and therefore, it does not exceed the powers of the Legislature. Mk. RoiiiNso.s: — I do not know that I admitted that it included the remission of fines. Coi,'nsp:i, — My learned friend is not prone to make admissions. Then take it that my learned friend did not, as I supposed, admit it. He certainly made a distinction on that head ; and I say that if the distinction which he made does exist, and to the extent which I thought he made it, namely, that one case is within and the rest are without the power, it is enough for my purpose to show that one is within, and the statute then applies to that only ; and even attempts no more. But, be it remarked that if there is nothing within the clause, there is still no attempt to go beyond the powers of the Legislature; and the extreme effect of this whole legislation, even as to the second clause, comes to be that there may be nothing upon which, according to its terms, the clause can operate. O.ii.KU, J. —1 was Koinx to ask what the statute <lifi. C()i;nsi;i. — If your Lordsliiiis (iml, alliriuativL'ly, that there is notliit)^' whatt;\iT on which this clause can opt-rate, such a linilinK will, oi course, practically amount to this, that tlu-re has l)i;en an attempt, in some sort, to ^o beyond tin; It^K'islative pow(!r. Hut the practical result ol such a .ledara- tion will he that the clausi; does in terms no(hin>{ whattner, because the LeKis!ature has no power whatever. Hut, if we hnilanythiHR whatever upon which the clause cm operate, if there be sotnethiuf,' within, .'ind also someihiuK without, the power, then the claust- operatt!s, ac'CordiiiK to its terms, oidy upon the fornu-r ; it operates, aci:or(linj,' to its terms, on those thiuRsoidy which are within the Icf^islative authorit) ; and, I say conhdently th.at there is much on which it does oper;ite. Ost.icR, J. — I'roin the point of view y^iu are now arnuinjj, what is the object of the second section ? Would not the first one be sulhcient ? ("ot.'Nsi'.i. -I really do not know the precise object. I'niiuestion.ably, I suppose the first would be sullicient. 1 have not sidficiently studied all the Commissions, .and so fortii, to see whethtn- this pow(!r w.is in them, or in which of them. 1 cannot answer that (pu*stioii positively ; bid I suppose the <)i)ject was distinctly to indicate that the i.efjisla- tur(! conceived th.ii in some one or ntort; classes of cases they had power to f^ive the Lieuten.ant-Gov- ernor authority tocommuteor remit sentences; and that to the extent to which they had such power they wanted it to beexpressly understood that they were exercising; it. That is, ;is I in'.erpret it, the meaning; and object of the second section, 'J'here can be no ipiestion th.at it was the view of the I.eg- islaturo that there was some inst.ance, by them lefi undefined, in which tlu;y could ^;ivethat power to the Lieulen.int-dosernor. \\'hene\er they could, to the extent to which they could, they f,'ave it. Now, it is suf^^ested by my le.irned friend that this second cl.iuse may ojier.de on matters with which the I'roviiu es niiKht have dealt, or perh.ips liatl dealt, but which have become " crimes " uii;ier the H. N. A. Act by Dominion leKislation. I point out that the limitations to which I have referred completely exclude any daiiRei that the power can be exercised in respect of a crime made such by Dominion leRislation. My learned friend read the second section as if it was to be read bv itself; ;ind argued that it gave a power of " com- muling and remitting sentences for offences against the laws of this Province, or offences over which the legislativ'e authority of the Province extends," without any light to be derived from the former section. I say no ; I say thru the light which we derive from the former section shows that it is only in matters within the authority of the I.egislature of the Province, and only .so far as the Legislature has power to enact that the power is given ; and, when my learned friend asserts that it is given in such sort that a man sentenced to imprisonment or line, in respeci of a crime under a Dominion Act, could be pardoned ; in such sort that he could be relieved in an'- shape or sense from the effect of that sentence ; I say no. I say it is perfectly clear that the limita-y provision^ to which I have refer- red, apart from the language of the second section itself, prevent the possibility of any such conclu- sion ; because the matter would not be within the jurisdiction of the Legislature of the Province, it would not be a matter as to whiih the I .egislattiri; had power to enact. My learned friend himself argues ih.it it is not within tin; pouer. ht^ argues that it is bey(Uid the power of the Legishdure. I dare say it is. I am not ( oncerned now to dilter with him. I say only that, if it is, as it probably is, lieyond the power, than this second cl;iu.se, hav- ing reg.ird to its reference to the hrst, does not touch It ; irresjK'ciivi; altogether of its own lan- guage " offences against the laws oi the Province, or ollences over which'tlie legisl.iti\e .authority oi the Proviiui' extends " l''.\'en apart .altogether from those importeil limi- t.iry provisions by which the Language is hedged around, I contend that the langil.ige of the clause itself, upon its fair ami reasonable interpretation, and still more u])on siicli favorable iiderpret.ation and inteiulment as the Court is bound to give to it here, is iu)t so wiileas my learned friend suggests. It deals, not with crimes, but with sentences; it deals with the power of commuting and remitting a sentence for an offence ag.iinst the law of the Province. It de.ds, therefore, with the power, in mattt^rs within the jurisdiction ol the Legislature of tin; Province and so f.'.r as the L<tgislature has power to en.ict, of commuting and remitting a sentence for an offence against the lav of the Province. The Lieu ten, ant-' lover nor m.iy commute the sentence, he may remit thesentence. Now, h.ave the Legislature the power to authorize the Lieu- tenant-Ciovernor to commute or remit a sentence awarded, under a Dominion .Act, for an act which is a crime under the law of Canada, .and is also an offence against the law of the Province ? it is not necessary for your Lordships to answer that question ; because if the Legislature have that power they have given it, but if tlitiy have not that power they have not given it ; they ha\e not even pro(esse<l to gi\e it. They have given power only in m.atters within the legislative jurisdiction of the Province. Therefore, my learned friend conjures up difficulties ; he propounds to your Lorflships a construction of this clause far wider than its reasonable meaning, far widerth.an its fair interpre- tation, even standing by itself; and he rejects the limit.ations which apply to it as contained in the first clause ; all in order that he may convince your Lordships that it cont.ains objectionable and ultra vires prcnisions ; and he asks your Lordships, upon such a theory, so to declare. I repeat, even ad nauseam, and with reference to the second what I have said with reference to the first clause, that if it can be found th.at there is any one class of sentences which the Legislature has the power to authorize the Lieutenant-Gover- nor to commute or remit, that is enough ; the law is good ; there is something on which it does operate ; and it professes to operate no further and upon no other sentences, than those to which the legislative jurisdiction of the Province extends, and in respect to which the I-egislature has power to enact. I submit it to be of the first importance that in disposing of a question of such magnitude as this, whether a Legislature has transcended its powers, due and full effect should be given to the cautionary language and the limiting wcjrds with which that Legislature surrounds its actions ; and that, as the Court would in the concrete, in the particular case, hold that the Act had not the effect of giving the power which was assumed to be exercised by the Lieutenant-Governor, so here in this preliminary 10 and general proceeding in which, on an abstract case, the Court is asked to give an interpretation to the Act, it will adopt the same wholesome and saving interpretation, that the Act professes to do no more than that which the enacting Legislature had power to do. Then, my learned friend says the clause deals with crimes, Dominion matters; and he conjures up a number of difhculties on a supposed state of circumstances hardly conceivable as practically existing. Osi.KR, J. — Just make your last statement plain to my mind. "Laws of this Province" in that section mean, according to your argument, " laws which this Province has power to pass, has passed, or may pass ? " Counsel— Or may pass ; that is my view of it, my Lord, and I throw upon that the further light given by the phrase " in matters within the juris- diction of the I-egislature of this Province." I add that. Hut, I say that standing alone, if I had not that light, " the laws of this I'rovince," when spoken of by the Legislature of this Province, mean " the laws which have been or may be passed by the Legislature of the Province." I refer to the preamble, also, as throwing some light upon that ;— And whereas by section 92 of the said .Xct, it was provid- ed that in each I'rovince ot the Ooiniiiion ot t'aiiada the l.CBislatuie iiiny exclufi-ely make Imts in relation to matters c-fniiiit; witinn tlie classes ot subjects thereinafter mentioned. That is recited in the preamble ; and then the laws of the Province are spoken of in the clauses — • meaning therefore, laws wliicli the Legislature may make, has made, or may thereafter make, as referred to in the second part of the preamble. Then, as to the " laws and offences over which the legislative authority of the Province extends." The meaning of that is, that there were prior to Confederation, laws in force in the Province whether by the common law, by Imperial legislation introduced into this country by ourselves, by the former Provincial authorities, or by the law of the old I'rovince of Canada, which laws fell within that body of law, that mass of subjects, which became after Confederation Provincial — for instance, of- fences .against municipal by-laws. As to all that body of prior legislation which, upon the passing of the B. N. k. Act, fell within the I'rovincial scope ; which the Province could the ne.\t day, if it pleased, have repealed ; which it could amend at its plea- sure — as to all that body of laws, if by any portion of it there is created an offence, that is an offence over which the legislative authority of the Province extends. So that, if it be found that any par- ticular sentence is a sentence due, not even to post- Confederation Provincial legislation, but to ante- Confederation legislation enacted on a matter and after a fashion in which the Province after Con- federation might itself have dealt at its pleasure, the power, as is reasonable, shall extend to that case, as well as to those in which the Province itself, has after Confederation, passed its own enactments. Now, as I was aliout to say, it is by what I must call a very fantastic operation of the mind, that we are asked to adopt the conclusion that great diffi- culty and inconvenience can arise from this clause with reference to Dominion matters. What my learned friend suggests is that the Dominion Legis- lature mav make that a crime which the Provincial Legislature has made or may thereafter make an offence. I think a very serious question might arise as to whether in any matter which the iJominion Legislature — acting whether rightly or wrongly, in the sense of propriety, but acting within its consti- tutional power — had mad'3 a crime, the I'rovincial Legislature could thereafter interfere by making it an offence. It is perhaps possible that, if by such valid exercise of the Parliamentary power of Can- ada the matter had been converted into .1 crime, there might be abstracted from the Provincial jurisdiction — not the matter, indeed, but the power of making it a Provincial offence. It is a difficult (piestion, on which one would wish to reserve one's opinion ; because it is needful to see to what extent this would carry the authority of the Dominion parliament ; for, as I observed, in Queen vs. \V<iso)t, it is clear that a too liberal in- terpretation of that authority as to Provincial crimes would make it like Aaron's rod ; and it might swallow up the other powers. Jiut, are we to agree, from such a possibility as is set up, that the two Legislatures would go to work each making different sets of crimes and offences, out of the same act of an individual, and for each such crime or offence providing different punishments, and thus of course providing that a man might be exposed to that which is contrary to a fundamental rule of British jurisprudence ; that for the same thing no man shall be put more than once in peril ? Are we to agree that the Lieutenant-Governor may commute the Provincial sentence, and that the coinmutation of thaf sentence for that offence may have a certain effect upon the Dominion sentence for the Dominion offence ? No. Even if we make all these far-fetched assumptioms, all that is done by the Lieutenant-Governor is to commute or remit the sentence which was passed under the Provincial authority for the Provincial offence ; and he has not commuted or remitted — he cannot apparently commute or remit the Dominion sen- tence for the other offence or crime, the other rind separate offence or crime, legally speaking, which was accomplished indeed by the same transaction, but which was made a crime by the Dominion while it was made an offence by the Province. Therefore, I think there is nothing whatever in that. The dealing is with the Provincial sentence, under the I'rovincial law, for the act, which is made a Provincial offence ; and as I say it includes acts which are made offences by Pro- vincial law, or which have been made offences by ante-Confederation laws, in matters within the range of subjects on which the Provinces had, after Confederation, exclusive Provincial jurisdiction, which they may later on at their option exercise ; but it does not include the sentence for the crime under the Canadian law. My learned friend read an article in a periodical with reference to the effect of that very early statute of the Dominion, which made misdemeanors out of such matters, prohibited by Provincial laws, as were not made offences otherwise. Well, if one were discussing the policy or propT'iety, or even the constitutionality of that legirdation, there would be very much to be said aga nst its policy and propriety and even its constitutionality. It may be reasonably urged that if the Provincial Legis- lature chooses to prohibit an act, that Legislature has under the constitution full and ample power of itself enforcing its prohibition by its own legislation. It has power, by imprisonment up to the term ot life, it has power by fine, unlimited, to enforce its I I prohibitions. And if a Provincial l^egislature has, in any particular instance, simply prohibited an act, without providing a penalty lor the breach of its prohibition, any dithculty in '.nforcing its law is due only to its having onrlted to provide a penalty, and is to be renieditd only by its own action. I should say therefore, that a statesman- like consideration of the tlivision of the powers of the constitution would indicate that the l)ominion legislation to which my learned frienil has referred is, not only needless, but improper and unconstitu- tional; tliat the Provincial authorities ouglit to be left to enlorce their own laws by their own penal- ties; aiul that, if they choose to leave a law unenforced by a penalty, it is their own sole concern. Hut the (juestion is of no immediate consetpience ; because it is only the sentence under the l'ro\incial law which is touched by this Act. If more there be, and if your l-ordships hold that more woulil be beyond the jurisiliclion of the Legislature, that more is not included. Now, as I have said, some things are, I think, clearly within the Provincial power. For instTnces, penalties payable uniler its laws to an informer, penalties payable to a municipality, penalties pa} able to private individuals, lines payable to the use of the Province. My learnetl friend said he would not admit it ; but I ask your Lordships whether it is arguable that the Legislature, which has unquestionable power to enact that a man shall be liable to pay a penalty to an individual, or to a municipality, or to an informer, or a fine to the Treasurer for the uses of the Province, has not power to remit that penalty, to waive that fine ; has not power to undo its act ; has not power to say that the penalty or fine imposed under its authority shall not, under certain circumstances, be eligible? It seems to me to be impossible to contend, seriously, that such a power does not reside in the Legislature. And indeed, in other parts of his argument, my learned friend, speaking in general terms acknowledged that there were several ways, at any rate more than one way in which the Legislature might have done this very thing. Hut he said that this was not the right way ! If I am to draw a meaning from that ol)ser\ation, the only meaning I can draw is, that the Legislature have the power to provide the machinery in con- nection with the imposition of any particular fine or penalty ; that, when enacting the law providing for the imposition of the fine, or (lenalty, they have the power to provide for its remission ; but they cann(<t e.\ercise that power generally, or as an isolated and detached piece of legislation. Now, first of all, have they the powtiT qid) cuiiqin- modo ? The Legislature, for example, enacts that a particular act shall be prohibited, and that the sentence for the non-observance of that law shall be a fine pnvable to the Treasurer of fhe Province for the public uses of the Province, or to the Crown for the public uses of the Province. That is within its power, surelv. If that be within its power, can it not "do what its likes with its own " : with the monev which it orders to be paid to the public uses of the Province, to the Trensurer of the Province, or to the Crown for the Province ; with its own monev ? Can it not give up what it has ? Can it not viekl that which itself has e.cercised a legislative right to fake ? Can it not provide a machinerv for the yielding of it, for the giving of it back, for the remitting of it? Cannot the Legis- lature ivhich directed or authorized the imposition of the fine, assuming, if it pleases (however impro- perly, and contrary to sound principles as to the division of powers) assuming the judicial as well as the legislative power, impose the fine itself? Can it not repeal the law wliich imposed the fine ? Can it not by Act of the Legislature relieve the party from the fine ? Can it not by .Vet give up a Crown debt ? Can it not by .\ct inteifere with and abrogate the right of the informer, or other private person interested ? Surely, yes. Well, under the .authorities, nothing is clearer than this, that what the Legislature cm do, it can delegate the power to do ; and that it can provide for the doing of it in whatever way it deems most con- venient and effective. '1 hat (juestion was of course, as I will show later, the subject of discussion and of controversy ; but it is now settled : and the principle is cle.'ir, that what the Legislature can do legislatively it can do by delegation ; nor could anything make our constitution more lame and defective than to conclude that matters, which confessedly might be infinitely better disposed of by delegation to a single executive or judicial authority, must yet be disposed of by the direct action of the Legislature itself, because unhappily its power is not wide enough to enable it to provide for their disposition by delegation. Ha(;.\rtv, C. J. — Dropping the word " pardon" ; suppose the legislation was that in all cases of penalties directed to be paid to the I'rovincial Treasurer, any person aggrieved might present a petition to the Lieutenant-(iovernor, and that the case might be investigated, and the penalty remit- ted or refunded. Practically, that would be doing the same thing. CouNSEi, — It is the same thing. H.^GARTY, C, J. — It would avoid the obnoxious word "pardon," and it would deal effectually with the thing. CufNSKi, — Hut the obnoxious word "pardon" does not occur. Hagartv, C. ]. — Hut, I mean we have heard a good deal about that. It would be arriving at the same result by prescribing the way t() do it ; that any person directed to pay a fine might petition, and the matter might be brought before an ap- pointed man for investigation, and the amount, in the judgment of sav the Lieutenant-Covernor, be remitted. It is doing just the same thing of course. CorNSF.r. — It is the same thing. MacLfnnan, J. — The power of pardon could be exercised by the Legislature? CoiNSET. — It would be in a sense an .\ct of grace. There are certain things which even Parliament cannot do, for instance Parliament cannot dissolve itself. MacLennan, J. — I was speaking of the Legisla- ture as distinguished from I'arliament. Could the Canadian Parliament remit a Provincial penalty ? CofNSEi. — I'nfpiestionably, no. MacLennan, J. — Or a municipal penalty? CofNSEi. — Unquestionably, no. The only way in which the Canadian government, as a whole, by the exercise of either legislative or executive power, can affect Provincial laws is, as I understand it, (except in one or ( ,vo cases in which there is con- current legislativt power), by the exercise of the power of veto or disallowance ; hut the law once passing beyond that power, and being efficacious, 12 there is an end (jf all power to deal with it in any wa >> . Hagaktv, C. J. — If Mr. Robinson is right in his argument I suppose the {Jovernor-(ieneral could remit the punishment for the violation of some local Act ? Coi;.\si:l — That is hisposition. Mr. Robinson's argument is that the power is there, and is there exclusivel)'. That is the (juestion in the cause. If the power is there, and is there e.\clusi\ely, this second section eflects nothing wiiatever. Hut, it is (juite clear that by this construction the power of the local Legislature, to the extent to which its power depends upon its laws being enforced, is destroyed after the same manner in which, as 1 suc- cessfidly jioinled out to vour Lordships in TlitCJuetii 71. Wtisoii, it would be destroyed by the suggestion that procedure was in the hands of the Dominion Legislature. If you are to say of one Legislature, supreme within its own domain, having an extensive power of enacting laws and an extensive power of enforcing those laws, that its power of making its laws effective and securing their observance, its power of seeing that its sentences are executed, is to be subject to the views of any other Legislature ; then any law which is opposed to the views of that other Legislature may be rendered nugatory by the simple process of saying — Well, we are wi'iK to parilmi cvcrylnMiy yon have coii- victi'd. Von say tliat a fraiul upon a municipality shall be punished in such ami such a way, but ue liiink it ouKht not; ami tlierotore wlien you ha\c proliihitcd sucli and such a dealing by the Treasurer ot a Provim iai munici- palitv under such and such a penalty, every time there is a conviction uiuler your laws we ino|)ose to pardon your ottender under uur.s. Your Lordship sees the seriousness of the whole question. The seriousness of the whole cpieHtion is that the real effectiveness and \alidity and utility of laws are, by the Constitutional .Vet itself, indicated to depend upon their sanctions ; and if, while the I'rovi.icial Legislature is, on that theory, given power to apply sanctions to its laws, the power of remitting those sanctions is to he given to another authority, then the confessedly necessary means of enforcing thu Provincial legislation may practically be withdrawn from it at the will and pleasure of that other authority. That other authority cannot indeed itself make laws tipon these subjects, but it can render nugatory and abortive the laws which the Provincial Legislature alone can make. That is theseriousand important question before your Lordships. Burton, J. — And if the Parliament could not do it, of course the tiovernor-General could not do it alone, which appears to indfcate very clearly that the prerogative, which is so much talked of, is di- visible, as the other power? Counsel — Yes my Lord, that is my argument ; that that prerogative is divisible; and that we find this part of it just where it ought to be in order to render th.e ('onstitution symmetrical, harmonious, or even w orkable. All that I am concerned to do at this time is to show to your Lordships that there is someone thing, authority to do whicli the Provincial Legislature could and did u der ttiis second section confer upon the Provincial I^ieutenant-Ciovernor. If, for example, the Legislature could say, as to any fine payable to the Treasurer for the uses of the Pro- vince, that the sentence to pay that fine might be remitted by the Lieutenant-Governor, the ,\ct is saved, and we have no concern with the (piestions conjured u.p by my learned friend. So far as these are questionsofdiiliculty and inconvenience merely, we have nothing to .say t(j thein under any circum- stances — so far as they are diflicidties extending even to the (juestion of jurisdiction, yet, if we have found something on which the Act operates, that is enough; since the very language of the Act limits its operation to that which is within its jurisdic- tion. For, even if niy learned friend's fancied diffi- ctilties go so far as to show that any one of the matters to which he lias referred would be ultra vii;:s, that matter is outside the .Vet ; and the .\ct is good notwithstanding. N'ow, before going into the general line of argu- mf^ni I wish to deal with some of the more specific objections. One objection is that the Legislature is either interpreting or amending the provisions of the B. N. .-V, .Act, both of which are said to be legisla- tive sins. Hut, your Lordships will observe that the Legislature may, and constantly does, in very many respects alter the provisions of the H. N. .\. Act, as well as the provisions of law imported into the Provincial system under the operation of the B. N. \. .Vet. Why, the very ("onstitution of the Province, is, by the express terms of the B. X. A. Act, amendable, with a single exception. There- fore, the general observation that the B. X. .K. .\ct cannot be amended by Provincial Legislation is of no force whatever ; unless my learned friend co;;ples that observation with proof that, in the particular in which he suggests that the B. N. A. .\ct is being amended, it is not amendal)le. .\s to the power of interpretation. Interpretation or declarati'.)n is, I suppose, always harmless, and verv often useful. If, under the pretence of inter- pretation, there is really a change — and we have known legislation of that description — that change is operative or not just according to the decision of the (piestion whether the Legislaturi; had jiower to make the change or no. If a Legislature, having power to change the law, chooses t(j declare that the meaning of the law is thus and so; then, although it ma\- be juilicially determined that that was not theretofore the meaning of the law, and that the law was, in fact changed by the declar- ation, still it is in fact changecl by means of the declaration, always provided the Legislature had power to make the change ; and thus a declaration may be an amendment, and is at any rate a decision, in matters within the legislative competence. This law, however, does enact its provisions ; also by its third section enacting that nothing in the law- shall be construed to implv that the Lieuteiiant-Gove.nnr or administrator has not had heretofore the i)owers, authorities and functions in the preceeding two sections mentioned, Then, my learned friend objects that this is legis- lation as to the office of the Lieutenant-Ciovernor, and is excluded by the first head of section 92. 1 may deal further with that later. I point out now, however, that this provision has regard, first of all, to the Constitution. It is a power to amend the Constitution, ex( -^pt as to the office of Lieu- tenant-Governor. You,- Lordships see, therefore, that you must read the whole clause. By it the Legislature can amend the Constitution, can intro- duce a Legislative Council if they like, just as Quebec can abolish, as Manitoba has abolished, its Legislative Council. Yet the Constitution, (while amendable in various extensive ways, while 13 susceptible of changes making it, to suggest a vio- lently improbable procedure, very much more despotic; greatly limiting popular powers; even providing, in lieu of a representative Legislature, a nominative body as the law-making Assembly,) cannot be so changed as to interfere with the office of Lieutenant-Governor. This means then that those elements of the Constitution which can be properly deemed to be the parts of the Constitu- tion relating to the office of the Lieutenr it-Cov- ernor arenot to be changed ; and that for an obvious reason, because the Lieutenant-Governor is the link between the Federal and the Provincial, aye and between the Imperial and the Provincial authority ; lie is the means of communication, he is the chain and conduit of Imperial as well as Federal connec- tion; and therefore hisofficein the Constitution, his constitutional position as a Federal officer, is not to be affected. Within this limit the details of Exe- cutive power in all local matters must necessarily be changeable; and they may be changed. The 64th section expressly gives power of alteration. It is quite impossible to suppose that a Province which has actually the power to alter its Constitution, which has power to deal with a thousand different subjects requiring provision for separate Executive action every day, has not power to deal with those details of the management of the Executive power which are complementary to, and lorm proper in- cidents of that legislative power which it has e\er- cised, is exercising, or may exercise. I must add that it seems an extraordinary thing that the Fed- eral authorities should object to a method of legis- lation as to executive power, which is not merely consonant with the general principle of the British Constitution, under, according to, and on the theory of which principle this Act is in truth framed ; but which actually tends to increase the power and aggrandize the position of the sole link between the Dominion and the Province. Your Lordships will at once see how devoid of merit, so to speak, is an objection of this nature. If the Local Legislature is to be told, " you cannot add to the functions of the sole Provincial Officer who is appointed by the Dominion Government, of the sole Provincial Officer who is under the con- trol of the Dominion Government, of the link be- tween the two, of the officer whose Commission says he is to act according to the instructions of the Governor-Cieneral, who holos his ofiice in a certain sort, in a limited sense and tosomedegree at thepilfc.isure.inacertain sort, in a limited sense, and to some degree under the control of the I'ederal author- ities," it seems to me a most extraortiinary preten- sion, which will necessarily lead to most injurious results. To what ? Why, to these, that the Local Legislature will be obliged to .set up some other executive authority. When the\ want to pass a piece of legislation which demands executive action, which demands adinitiisiration, which demands for its working individual power, the exercise of dis- cretion or authority, they will be obliged to set up somebody else, some permanent or temporary officer of their own to carry out their wishes, to do those executive acts which the I'ederal power, ex- traordinarv to say, i.s insisting that the Province cannot vest in the Federal Officer. So that I ask y<jur Lordships to consider this proposition with great jealousy. It seems to me most dangerous. I think it would be very unfor- tunate for the good working of the Constitution, and W'juld be most absurd, and indeed suicidal, for those who look at it fro' 1 the Dominion point of view, to cast the least doubt not merely upon the power, the abstract power, but upon the propriety of the Local Legislatures, wherever there are ex- ecutive functions to be bestowed, bestowing them, just as they are here bestowed, upon the head of the Executive Ciovernment of the I'rovince, be- stowing them upon that Executive head who is the link, and the only link between them ind the Dom- inion. In truth it might be be better argued that it would be unconstitutional to confer these pow- ers on any other than the Lieutenant-Governor. There are some matters in which a course has been pursued in both bodies to some extent difier- ent. Executive powers have been given from time to time to Ministers; to be exercised, of course, under responsibility, but to be exercised directly by and in the names of the Ministers; which were formerly given to the Governor. For instance, the Crown Lands were, if I rightly remember, very shortly after Confederation practically vested in the Commissioner of Crown Lands. So again with reference to extradition. Take the Imperial Legis- lation, and take the Dominion Legislation; certain powers as to Extradition warrants which were given by .\ct to the Secretary of State in England, have been given to the Minister of Justice in Can- ada, instead of being nominally conferred on the Governor-General. There are instances of this nature in which convenience, from time to time, does point out that you shall appoint some other functionary than the head of the Executive to do some executive act ; but, speaking generally, simplicity, efficiency, and the theory of the British Constitution are all furthered by the adoption of the general rule that executive powers shall be vested in the head of the Executive; to l)e dis- charged, of course, under advice ; to be discharged of course, upon the responsibility of some Minister, who is to answer for that advice to the Legislature, and ultimately to the electorate. Therefore, to say that, if the Local Legislature thinks it prudent to legislate upon some one of the matters incontestably within its jurisdiction, after a fashion which requires for the execution of its l,iw the exercise of certain administrative powers, upon matters with which it could, if it pleased, deal directly from session to session, but which can be more efficiently and properly performed by an iiidi\ idual ; to say that there is the least objec- tion to nssigning those executi\e functions, which the Legislature properly frcnn time to time creates, to the head of the ExecHitive, to the Lieutenant- Governor, seems to me to be out of the question. It is not merely within their authority, but I say it is the fit and proper way in which they should exercise their authority. Well, if that be granted, yet this is, according to my learned friencl's view, legislation within the exception in the B. N. A. Act as to the office of Lieutenant-Governor. I do not think it is, in that sense, legislation as to the office of Lieutenant- Governor. Kather is it legislation expressly giving, when a new executi\e function is created, the aiithoritv to the head of the Executive; or indeed (if, as mv learned friend at one part of his argu- ment insisted, the head of the Executive would have that authority by implication without express legislative grant) then controlling, or limiting, or subordinating to certain parliarnentary checks, the exercise of the authority. Therefore, I see no difficulty at all in the grant to the Lieutenant- M Governor of any powers which are congruous, as the Chancellor phrases it, which are jjerm.'ine to his office, which are (it to be exercised by the head of the Executive, and with which it is wi:hin the legislative jurisdiction of the Province to deal ; notwithstanding the clause that we shall not alter or amend the Constitution as to the ofiice of the Lieutenaut-{i(jvernor. It is not ready an amend- ment of the Constitution, a change of his office or position, an alteration of his tenure. An attempt to alter his tenure would be an attempt to affect his office within the meaning of the Constitutional Act. An attempt to abolish his office would, of course, fall within that Act. But, leaving his office untouched, either to augment his power and enlarge its sphere, by giving to him the perfor- mance of appropriate executive acis ; or (if by implication such performance would vest in him as the head of the Executive) then to regulate the discharge by him of a function which the Legisture certainly can itself accomplish by legislation directed, pro line rice, to each case ; either course I submit is unobjectionable. For example, suppose a Pro\incial law provided that the Lieutenant-Ciovernor, which woulil mean of course the Lieutenant-Governor by the advice of his Ministers, could sell Provincial timber limits, up to 8100,000 in value, but limited to that amount his power so to deal with timber limits; there could be no doubt that such legislation would be good. There could be no doubt that, after having ,given the power, the Legislature could remove it, increase it, or reduce it. They might say, " We think the Legislature ought to be consulted before timber limits in excess of $10,000 are sold, and we so limit the power," or " We think it is convenient that the Lieutenant-Governor should have an unlimited power of selling timber limits ; and we vest in him that power." Of course that power would be vested in him, act- ing by the advice of his responsible Ministers ; but, it can be given, increased, reduced, or removed, just at the will of the Legislature; and none of these are constitutional changes affecting the office of the Lieutenant-(iovernor. I ask your Lordships to apply those two words "constitution" and "office," in the sentence. " Amendment of ibeCuiisti/utiui " : " with reference to the Office o( the Lieutenan' -(Governor," as each throwing light upon the other, and as showing that it is the Constitution of the Province, which is being dealt with by the clause ; and that it is the Lieu- tenant-Governor's office, as partofthatconstitution, which is lieing dealt with by the exception. There is then a distinction between the office in this sense, and those strictly local powers, the creation of the Legislature, which may be given, taken away, in- creased, reduced or regulated by that Legislatuie. Then, I refer to the judgment below as satisfac- torily demonstrating that the express power which is given by the section to abolish and alter does include the power to add. In fact if one thinks of " alteration " in the various, the almost innumer- able senses in which that word is used, of the trans- actions to express which it is employed, it would appear that it is either by addition or subtraction that, in perhaps the majority of cases, " alteration " is effected. I submit that anything which does not create a complete change (although it may in- volve the subtraction of some power, although it may involve the addition of some power, not being within the first sub-head of 92) is included within the power to abolish and alter. And on that head I refer to the cognate section, section 129, and to the decisicjn of the Privy Council in Dohic v The Tern- paralities liotird, . Cart .564 ; which points out that the enactmen then under debate is qualified by the provision that all laws in force in Canada at the time of the Union, continuing in Ontario and Ouebec, with the exception of those enacted by the Parliament of Great Hritain, or of the United Kingdom of (}reat Uritain and Ireland, should be subject to l)e repealed, .iljolislied or altered by the Parliament of Canada or l)y tlie I^esislature of the respective Provinees according to the authority of tlie I'arlianient or that Legis- lature under this Act. Now, what does the Judicial Committee say ? The powers conferred by tliis section, upon the Frovin- cia! I.egishitures ot (Mit.uio and (Juebec, to rejjeal and alter tlie statutes of tlie old farlianient of the Province ot Canada are niade-preclsely coextensive with the powers of direct leRislatioii with which tliese bodies are invested by the other clauses ot the Act ot iSb?. In order, there- fore, to ascertain how far the Provincial I.egislature of (Juebec had power to alter and amend the Act of iSsti in- corporating the l5oard for the nianagenient of the Tem- poralities fiiiul, it becomes necessary to revert to sections c)i and 42 of the liritish North America .Act, which enumer- ate ami dehiie the various matters which are within tlie exclusive legislative authority ot the Parliament of Cana- da, as well as tliose in relation to which the Legislatures of tlie respective Provinces have the exclusive right of making laws. It it could be established that, in the absence of all iirevioiis legislation on the subject, the Legislature of Quebec wouhl have been authorized by section 92 to pass an Act in terms identical with 22 Vic. ch. 20, then it would follow that the .Art of the 22nd Vic, has been validly amended by the jSth \'ic. ch. 04. 'ITiere is a definition of the meaning of the words "repeal, abolish, or alter," u eel in the sam:- statute, as applied to the legislative authority conferred with reference to .Vets of Parliament ; and certainly it gives the widest possible interpre- tation to those terms; it certainly includes the power of addition and subtraction ; and the same interpretation must be given to the same words here. Now, my learned friend, Mr. Robinson, suggest- ed that it was hardly necessary to elaborate liere the view which I had ventured 10 press upon the Court below, my general view upon the theory and scheme of the H. N. .\. ,-\ct ; because my learned friend was prepared to concede what he admitted had been established by a chain of decisions as to the general character ot the Provincial Constitu- tion ; he acknowledged that the Provinces were much higher and much greater bodies than had been laid down according to some earlier dicta, some earlier views, some notions adhered to in certain high quarters up to a comparatively late date ; i.nd he suggested that therefore it was need- less longer to pursue that subject. I feel, however, my Lords that although my learned friend's stateinent relieves me from the necessity of enlarging so much as I otherwise might have done upon that phase of the question, yet it is absolutely impossible to treat, as it should be treated, the important issue before the Court without some reference to the general theory of the Act. For I may say shortly, that while the attack in earlier days was made upon tlis Legis- lative authority of the Province, upon the charac- ter, the nature, the degree, the (juality of the Legislative authority, as much, or more perhaps, than upon the question whether particular matters were comprised within particularly enumerated IS provisions; yet I find it impossible to dissociate from the consideration of the natnre, extent and qnality of the executive powers and the executive Government of the IVovince, all directly in (jues- tion here, the consideration of its Legislative authority. And this on two grounds :~lMrst, because in reason, as under the language of the Act, I believj tl e Executive and the Legislative authority to bj co-extensive, commensurate, and complementary the one with the other; to be of the same kinil and nature, character and degree, as we would expect to find them one in relation to the other; and Secondly, because the authorities which from time to time have elucidated the positicjn of the Provincial Legislative power contain expressions valuable here; and are themselves, in reason and in argument, inextricably interlaced with the (luestion of the executive authority. Therefore, when we are now called upon to deal in the most plain and direct manner with theiuiestion of the nature of the executive authority in this Province; when ideas of high prerogative are init forward; when notions of the incommur icable character of the prerogative are suggested: when it is argued that prerogative powers are not to be taken as communicated to a Province nrder the B. N. A, Act because of the method prescribed for the appointment of the Lieutenant-Governor, and because of the language which is used about him in the statute ; then it becomes necessary to examine the whole scheme of the Act as to the Provinces; so as to reach, if we may, a conclusion which shall leave the Provinces not lame, not deformed, not reft of any part of those powers, that dignity, that positi(jn, which aie as essential to full and sufticient authority in the Executive as they are to like authority in the Legislative department. First of all, I would observe that, in dealing with the nature of the Provincial constitutions, as de- duced from the Act of Parliament and expounded by the decisions, we must remember, as a funda- mental proposition, that the constitutional rights of the people of this country, and the legislative and executive powers already conceded to them and existing in the Provinces, were divided, some being assigned to the Dominion, and others left to the Provinces ; that if the B. N. A. Act effected any- thing in this relation, it was not to abstract, either by omission or otherwise, any of those powers of self-government which existed within the territorial limits to which the Act applies ; but it was rather to increase than to diminish the sum total of those powers of self-government ; and that, whether they were increased or left standing, what was done was to divide them, to divide the suin total, not in any wise ."'Tiinished, between the central and the local organizations. That being so, the division might have assumed any form. The division might have assumed a form which would have left the Provinces only " major municipalities," a term which my learned friend now repudiates, but which was not uncom- monly applied to them in some quarters for some time after Confederation— a form which would have left them to a great extent subordinated. But the division did not in truth take that form. The scheme of division was one which gave central, and also local legislative and executive powers ; each of the same quality and nature, though touching different subject matters. The nature of the legis- lative power as distributed has been, as I have said, the subject of repeated controversy ; the nature of the executive power has been so far but slightly touched on ; but it has now become the sid)ject of serious dispute. It was (juestioned no doubt by the language of some of the Judges in Liiiair v. Ritchie, and by that of one of the Judges in Merur V. The Atturui-y-Cienernl . it has been touched on some (Hhur occasions ; but it has formed, compara- tively speaking, to a very sUght extent the subject of direct issue, forensic debate, or judicial decision. Still, I say, that by the decisions, dealing though they do primarily with the legislative power, most precious light i.-; thrown upon the nature and (juality of the executive power, I^ach part of the whole body of the ('(jr.stilution does retlect light upon the other ; the e:.c( litive powers bear a close relation to, nay, as I contend, their extent may satis- factorily be deduced from the legislative powers. Thus, the decisions reached on the one are closely relevant to ihe (piestions raised on the other. Then, I t.ike ntUe of my learned friend's con- cessions, that the Proviiices are not municipalities, that they are not corporations, that they more nearly approach the position, as he said, of inde- pendent States ; that they are at any rate govern- ments, political entities, possessing powers practi- cally, within their range, independent ; that they are political organizations formed with cc-iistitu- tions, with executive functions, with legislative functions, like, though not the same as, the old Pro- vinces; that they are in fact still, though sub modu, and with alterations, the old Provinces. Now, if your Lordships would refer to the preamble of the B. N. A. Act cited by Mr. Lefroy, it reads in part thus: \Vlicre:»s flic Provinces of Canada. Nova Scotia, and New lirunswick, have expressed their desire to he federally united in one Dominion under the Crown of the I'nited Kintjdoni of Great liritain and Ireland, with a Constitutron similar in principle to that of the United KiuKdoni. .\nd whereas on the establishment of the Union by authority of Parliament it is expedient, not only that the (Constitution of tlie Legislative authority of the Uoin- inion he provided for. hut also that the nature of the Kx- ecutive Government therein be declared. You find that it is the accomplishment of a par- ticular description of L'nicm which is attempted by the Act, viz. a Federal Union under the Crown, with a Constitution similar in principle to that of the United Kingdom; you find that on the establish- ment of this Federal Union, it is declared expedi- ent, not only that the Constitution of the Legislative authority of the Dominion be provided for, but also that the nature ot the Executive Government therein be declared. I hold, with my learned friend, that it was intended to -iiclude by the words, " the r)ominion " the different political parts of the Dominion ; the Dominion itself, and also the several Provinces ; both as to the con- stitution of the legislative authority and as to the nature of the executive government. That is what is accomplished by the enacting part ; and that is what is recited in the preamble, in effect, although in brief terms Now, the third clause unites the Provinces of Canada, Nova Scotia and New Brunswick into one Dominion. The fifth clause divides them into four Provinces. You find, therefore, the <vord " Provinces " used in the same sense in this Act as to the old and as to the new. That is an indication of what the word " Province " means as to the new. The three Pro- vinces of Canada, Nova Scotia, and New Bruns- wick form one Dominion, and Canada is divided i6 into four I'rovinciS, using the same word ; it is used in h'; same sense; and therefore it is tlie same sort of body wiiich is bein;,' treated, and the constitution of wtiich is beint; aiijusted in the suli- se<iuent parts of the Act. 'I'iie sixth clause divides the parts of the old I'rovince of Canada into tut) separate Provinces, and I may refer, as I did be- low, to sa\e time, to a portion of my arKunient in iSV. Catlinriuis v. The Qiifiii, which has been printed, for the proof that the effect of these clauses was to continue the old I'rovinces, not to create new ones ; that in truth the language which is used had regard to the necessities of the drafts- man, occasioned by the fact that it w.'is intended to divide Upper and Lower Canada, and to make the Union out of four I'rovinces, while there were Init three before ; but, for all that, they were the old Provinces c(mtinued. And light, leading to that view, is thrown upon the Act, both by certain omissions with reference to N'o\'a Scotia and New Brunswick — as to which it was not necessary to enact sf)me pro\isif)ns, because their bound:, were not altered, and they were in every feature the old Provinces — and also by the amplifications made as to Ontario and (juebec, due to the fact that they were, so to speak resuscitated ; they were old Upper and Lower Canada revived ; and the imme- diately precedim. Province of Canada thus ceased to exist in that precise form. Now, the continuance of the old I'rovinces, which is, I think, demonstrated by several passages quoted in the argument to which I refer, and which was practically affirmed in some phrases used in the judgment of the Privy Council— the continued existence of the old Provinces colors; other clauses also. Vou will find a passage in a judgment of Gwynne J., where he speaks of an executive authority to summon the Legislatures of the Provinces of Ontario and (Juebec being given, but being omitted, as he supposes by accident, in the cases of Nova Scotia and New Brunswick. But I submit the contrary view ; I submit that it was not omitted by accident ; it was omitted as unnecessary. In Nova Scotia and New Brunswick the Lieutenant-Governor had the authority just be- cause they were identically the old Provincen. It was not necessarv to give the executive power in thosecases. Itexisted; and continued; and therefore it was not given. It was necessary to gi\e tliat executive power in the cases of Ontario and Quebec, just because of the division; and, there- fore, in order to set the machinery in motion, the Lieutenant-( Governors were authorized to do this thing ; and I repeat that the proposition which 1 advance of the continuance of the old Provinces is supported by this and others of the subseqi.ent clauses. Hacarty, C. J. — You do not admit the tabula rasa argument ? Co!jNsi;i. — No my LonL You will find in this Act, applied t(.) the Provinces, the words " continu- ed " and " reserved." Certain revenues are re- served to the Provinces , certain powers are con- tinued to them ; and it is on the whole perfectly plain that if it had not been for the circumstance that Ontario and Quebec had to be divided, that old Canada had to be carved into two, *he words on which the argument of tabula rasa rest would have been entirely unnecessary ; and it is to this limited end that those words must be applied. Now, much light is thrown upon ihe nature and character of the Provincial legislative and executive authorit,' by a comparison of the language which is used in the B. N. .A. .\ct with regard to the Pro- vinces and with regard to the I)ominif)n. As f(jr example, take the thiril cli\ision of the Aci, that preceding the ninth siclion. Take the heading " 'I'he executive power." There is the heading " executive power " ; and the section gives a defini- tion of the executive power in the cise of Canada, " the executive (iovernment and authority of and over Canada." Of course it is judicially decided that the heading is to be lookefl at as really a part of the Act itself. I'inding then hiTi; the phrase " executive power," 1 shall ask your Lordships to say what is the character and f|ualily of this ex- ecutive power; and to look with me, \>'nen I come later on to the provinces, and find >vn,it is the de- scription of their authority. If I fintl " execiuive power " there too, I shall ask your Lordships to conclude that the things are of the same quality ; they may noi be of the same extent, but they are of the same (pialitv. Now then, this clause is: — Tlieexncutivc Government and authority of and over Canada is hereby declared to continue and lie vested in the Queen. I think that the same obstTvation which my learned friends ha\e made with ref(>rence to the us(! of the word Canatla in the preamble \ery probably may apply to the use of the word Canada here, namely, that this is a general statement with reference to the executive Oovernment and authority, wide enough to apply to the Provinces as well as to the Dominion in its federal element. The executive Cr nernment and authority of and over Canada continues and is vested in tht; Queen; to be exercised as regards the federal element, the Dominion, through the Go\ernor-Ciener;il, as appears in subsequent clauses; and to be exercised as regards the Provinces in the methods which are prescribed with reference to the Provinces. That construction is conf (rmable to the general principle of Monarchical Constitutions, and of the British Constitution as one example of that class of Con- stitutions ; a principle which makes, as I under- stand, of the Regal power a unit, exercised in the name of the Sovereign, not always by that personage immedia'ely, but in a great many instances through delegates, through appointees, thrfiugh officers, who themselves may have the power of appointing deputies, which deputies even exercise, within the limits of the authority conf(;rred upon them, portions of the Kegal power. ,\nd, therefore, I apprehend that this clause may fairly be read in the wav I state, and may thus give us to understand that it was intended that the authority and power of the Queen — the e\ecuti\e authority and ]"iower of the Queen, constitutionally granted — should remain and be exercised o\er the whole countrv in its different parts and divisions, territorial and political. Now, we turn to the twelfth clause. That clause is also an indication that the executive power is of the same character throughout. We find by it that :— '7 or witli ai'v nuiiibiT o! iiieml)i'r> tlicnof. or liy those (lovcriior^ ur l.ii'iilunantCiuvei nois iiuliviiliiallv, ^liall. .is tar as tin- same cmitijiue in existem c and i apalile nt beitiK fxcrrisi-d .illi-r the I'tiioii in iilaiion tu the (Waei iinie.it (It I'.in.iila, l)e vesleil in and cxcn i-ahh: hy the tiovernor- (ieneial. with the .idvKe and so un, subject to he abolish- ed or altereil. So that, lia\in>' (Icclared tliat tin; ttxe'Clitive power ami aiitlicirity cniuiiiiie ami aie \cste(i in thi:; niiccn, lia\inK i)ii)\ i(li;(i lor ri (io\urnor-( IciuTai, lia\iiij; provided for a (,UiL'eirs I'rivy Council f<ir Canada, wlnii you look tor tlieoxuciitix e po\vt;rs, authorities a'ld ttiiictioiis which are to l)e transferred, you timl that all that share or portion cjI the whole mass of executive poueis, authorities and functions in exist- ence under the aiitlxjrity ot the hiw, which remains capable of lieinj,' exercised after the I'nion in rela- tion to the (lovernnient of Canada, is vested in the (iovernor-Cieneral. That shows that there is ;i division of the executive authority. The whole mass of the statutory executive authority is referred to, and it is divided. Thit portion of it which is capable of hein;,' exercised with relation to the (Jov- ernment of the Dominion is set ti) one side atid is placed in the hands of the (iovernor-deneral ; and 1 need hardly say to your Lordships that later on that portion which is capable of bein.i^ exercised with relation to the governments of the Provinces is vested in the Lieutenant-CK)vernors (jf the Pro- vinces. So that the whole mass of executive authority is di\ ided into two parts ; one part goes to one, and the other part to the other; ami the executive power and authority which goes to that other is of the same (|uality, of the saine nature, of the same origin, of the same or even higher an- ti<iuity, because it is jiractically continued. ;is I shall show to your Lorilships when 1 come to the clause. The Provincial executive authority has not thervj- fore any subordinate, or inferior nature or (piality ; but of just the same nature as that possessed l)y the Oueen's direct representative, acting in Her name lor Can.ifla. is the executive authority poss- essed by the Lieiittnant-(jo-.ernor of the Province, Then, the fourteenth clause, my learned friend has rightly said, authorize^s the Queen to empower the Governor-Cieneral from time to time to make any person his deputy to exercise any of the pow- ers, authorities and fimctions which he deems necessary to assign to such deputy, subject to any limitations or directions expressed or given by the yueen ; but the appointment of such deputy or deputies is not to altect the exercise by the (}over- nor-Geiieral himself of any power, atithority or function. So that the Act C(jnteniplates what at one stage of this argument my learned friends thought to be an almost inconceivable view, namely that there may he two persons with power to exer- cise the one function. This clause expressly pro- vides that the Governor-(ieneral may appoint a deputy ; and may at the same time reserve the power of himself exercising the deputed functions. Then, we come to the ne.xt division " Legislative Power " ; and that legislative power is thus given for Canada : — There shall be one Parliament for Canada, consisting of the Queen, an Upper House, styled the Senate, and the House ot Commons. You see the phrase adopted when it was intended to give the power of legislation ; that part of the Constittition is described as " Legislative Power." I shall ask your Lordships to look at the Provincial Constitutions, and see whether a different or the same phrase is used. If the same phrase is used, I maintain it is an indication of the existence in the sul)sei|iient case of the sairie <pi;dity of legiskitive power, to be exercised in the same way, and with the same degree of Latitude as to methods and means and facilities for carrying out such h^gislative powers as in the prior case, sidiject ot course, to any expressed rt'strictions Then the fifth division of the .\ct is headed " Provincial Constitutions ' So that we find here " (Constitutions," the same phr.ise which is used in the ]ireand)le \\ith relereiue t<j the constitution of the I'nited Kingdom, .and to the Constitution of the legisl.itive .luthority of the I )oniinion of Can.ula. It is not, therefori?, the incoi poratioii of .i company, or the charter of a municipality , or any h;sser or other thing, so far as tins title shows, th.'in the Con- stitution of a State. Y'oii have got the Constitution of the Cnited Kingdom ; you h.ive got the Consti- tution of Canada ; and you have got Provincial Constitutions ; and this litter it is which is elabor- ated in the subsecpient parts of this division. The name endir.ices thercd'ore the ideas of Sovereignty and of political org.-uiiz.ition. The first sub-head is " I'Lxecutive Power," the same phrase which was used for Canada, and therefore haviiig the same meaning ; and then the 5.Sth section provides : — h'or each Province tliere shall lie an oflicer styled the I.ieidenant-Governor appointetl by the (lovernor-Cicneral in CuiMicil by Instrument under the Clreat Seal of Canada. Then, what, to judge by his name, is a Lieti- tenant-Ciovernor ? He is" the holder of the pl.ice " of or for the person in whose name and in whose stead he holds it. Me exercises the authority, to the extent to v>.hich his Commission or statutory powers give it, of his chief. The f.ict that thi.^ officer is a " Lieutenant," is, to my mind, extieniely impiirtant as coinlj.iting the position, which you find statcfl so strongly in Leuuii- r. Rilchir by certain of the .(udges, that there is no d(;scent or transmis- sion (jf the Koyal prerog.'itive. The (iovernor-f len- eral is admittedly, on the face of the Act, the Queen's representative ; he is to go, n Canada in the name of the Queen ; and the (.iovernors of the Provinces are his Lieutenants ; the Lieutenants of the officer who is acting in the naine of the Queen. There- fore I see nothing in the .\ct inconsistent with, and much to f.ivor the view that all that portion of the Kegal power, prerogative power, executive power, which is essential to carry out the objects of the Act, in order to make effectual and complete the exercise of those powers of self-government which were being given to the Province, may be held to be appropriately transmitted to the Prov incial authority bv a clause which makes the head of the Kxecutiv t; in the Province th(^ Lieuten- ant of the Gf)vernor-C,eneral who himself rules in the name and as the representative of the Queen. Besides, that xvas the oUi phrase for the P.xecutive heads of two of the Provinces, "The Lieutenant- Governor of New Brunswick," " The Lieutenant- Governor of Nova Scotia," as they were styled just before Confederation ; and for the others in earlier years. These were, in their day, the heads o the Kxecutive ; they were, it is true, appointed by the Queen directly ; but still the phrase was " Lieuten- ant-Governor." Now, there is no doubt whatever, that even though the Queen may be unable of her own motion without the action of Parliament to accomplish it, yet Parliament can directly distribute, and can also vest in the Queer the power of distributing her i8 prerogative, of placing it in whom shi; pleases. Tiien whiMi you liiul r.iiliameiit providing that th<^ (>ovi!rnor-(niu;ral who is to niit; in hi^r name may appoint Liuutcnant-Ciovcrnors, then; si'cnis to be a clear indication of an intention that tluire shoiikl be, to tlie t!xtent necessary to carry nut convenitMitly all tht objects of the Act, a delegation of the Kegal power. The method of appointinj;, also is important. It is " by instruini'iu under the dreat Seal of Can- ada." The (lrt:at Seal is the recognized instrument of Royal authority. It is the most solemn way in which the Sovereign speaks her will. .\ (ireat Seal is said to be the mark of a Sovereign state. Now not merely ha\e the Provinces their own (Ireat Seals ; a fact upon which observation.; are to be made cognate to those which I am now mak- ing ; but this clause itself provide-s that the I.ieu- tenant-Oovernor shall be appointed by the ('.o\er- nor-General in t'ouncil by instrument under the Great Seal of Canada. Ag.iin you have in the book before you the instrument of appointment, which shows that the Governor-General acts in this regard, as he ought to act, and could ahme rightly art, in the name of the Queen ; ;md that it is therefore, the (,hieen herself through this instru- mentality, authorized by the Act of I'arliament, who appoints the Lieutenant-Governor of (Ontario. The Commission runs in those express words. It is Victoria, Queen, who appoints the Lieutenant- Governor, and appoinis him under the Great Seal. IJeing a Queen's oflicer in name, as his patent shows, he is a Queen's officer also in nature for the reasons that I have mentiunccl Hai;.\ktv, C. J. — Is that the way it reads ? Ap- pointment under the Great Seal in the name of the Queen ? Counsel— Yes, my Lord. Your Lordships have it so before you in the Commission. Hagartv, C. J.— Is that prescribed, or merely adopted ? Counsel — It is, I apprehend, prescribed by the Act, and to that I attach some importance. The Executive Government of Canada is carried on in the name of the Queen ; and this act is done by the Governor-Cleneral under the Great Seal ; and under the authority of this Act it is done in the name of the Queen. riie Executive Government and authority of and over Canada is hereby declared to continue and be vested in the Queen. There shall be a Council to aid and advise in the Gov- ernment of Canada to be styled tlie (jueen's Privy Council 'or Canada. Not the Governor-General's Council ; they are the Queen's Privy Council for Canada ; and it is the " Governor-General in Council " it is there- fore, the Governor-General of Caiada, as the Queen's representative, acting for her and in her name, on the advice of the Queen's I'rivy Council of Canada, and under the Great Seal of Canada, who, by the Statute, is to appoint this oflicer, who thus becomes the Lieutenant of the representative of the Queen ; and so may be fairly said to be an appropriate holder of such prerogative power as, in order to make the Constitution efficient, should be exercised by the Executive Head of the Province. Then the Oist section makes him take and sub- scribe oaths of allegiance, and oaths similar to those taken by the Governor-General. The 62nd section shows that he is " carrying on the government of the Province." The provisions of this Act referrinc to the Lieutenant- fJoveiiior extend and aliply to the r.ieutcn.iiit('.c)Vi:riU)r lor the tin\e beinn nt imlIi Province or (Jther tin- chief ex( cutive i^tti. er or administrator for the the time beuij' iiiiryiiiir ,,,i ///,• t;,<i,riiin'iit 0/ the I'rovince, by whatever title he is ilesign.iled So tnat it is cpiite cleav that tin; Lieutenant- Governor is ;i person "carrying on the government ef the Provinci; " .\nd, what is "government" in a monarchy ''. I)o<,-s not the word necessarily iinolve the delegation of som<! portion of the Regal power to the officer " carrying on the govern- ment," and being the chief exccuti\e officer or Lieutenant-Governor of the Province.^ I conclude then that the Lieutenant-Governor, who is a Queen's ofhcer. appointed by the Queen through the Governor-General, in the Queen's name, under the Great Seal, who is styled the " Lieutenant- (iovernor," and the "chief executive officer of the Province" who is "carrying on the government of the Provi.ice " is, in his measure, a representative and delegate of Royal authority. Then sections ()^ ,ind 64 are sections which show very pointedly the strength of the arguinent in favor of tile continuance of t!ie okl Provinces and of the high nature of the government. Section 63 speaks of the " Executive Council of Ontario and Quebec." After providing a Lieutenant-Governor, you find an l':.\eciitive ("ouncil : and you find that those of Ontario and Quebec are to composed of the following persons : — The Attorncy-GeMcral. the Secretary, and Kcgistrar of the Province, the I'reasiirer of the Province, tlie Com- missioner of Crown Lands, and the Commissioner of Acri' ullureand Public Worlis within (Jiiebec. the Siieaker of the Legislative Council, and tlie Soficitor-General. You find, therefore, as was necessary, a definition of those who, in the first instance, should compose the Executive Coiincils of the two Provinces carved out of the old Province of Canada, and whose machinery had to be set in motion. You find officers mentioned, whose offices contain in them- selves indications of this being in its ext cutive as well as in its legislative character, n governineut. You find an Attorney-Gei.eral, an officer well known under the luiglish C2onstitution. The Attorney-General is the person serving and acting for the Crown in the capacity of legal adviser. You find a Commissioner of Crown Lands. The pulilic lands are spoken of as Crown lands ; and you find amongst the fir.it Executive Council there is to be a person who is to be Commissioner of Crown Lands ; thus indicating; that the Crown Lands were to be dealt with by the Lieutenant- Governor under the advice of his Executive Council. Then what do you find in clause 64 ? For the other two Provinces, Nova Scotia and New Bruns- wick, in respect of which the necessity to which I have adverted did not arise, the Act says ; — The Constitution of the executive autliorityin each of the Provinces of Nova Scotia and New Brunswick, shall, subject to the provisions of tliis ."Vet, continue as tt exists at the Union until altered under tlie authority of this Act. They were the old Provinces ; and the C'onstitu- tion ot their executive authority coniinued. It is not said that Nova Scotia and New Brunswick under this Act shall have the same powers and authorities as the old Provinces of that name had ; which would in one sense be tpiite enough for me ; but it is said that the constitution of the executive authority of those existing Provinces is to " con- »9 tinue as it exists at iht; l.'nion;" it is kept alive the whole time There was no necessity to define nioie particularly ; the executive authority con- tinued as it was. So that my learned friend lias t(j show to your l^ordshii^s sonK-tliinn else in the Act wiiich lias taken away that share of Regal power, tli.it delej^ation of l<t'j,'al power applicable to local alfairs which under the Act still remains and continues in the constitution of the executive authority of Nova Scotia and New Urnnswick, before he can establish that that authority is shorn of any part of that power. And all that was continueel to Nova Scotia and New Hrunswick was vesteil in Ontario and (,Hiebec. I ask your 1-ordsliips then to decide that it is perfectly plain that all the executive power which existed before the I'nion, and was required for the doing of the things which after the Union remained within the legislative power of Nova Scotia and New Hrunswick, continued, after the Union, ot th^ same nature, of the same (luality, of the same character, under this Act ; was, notwithstanding the passing of the Act, and even by the terms of it, preserved, and maintained, in its original vigour. And I ask your I.ortlsliips, determining thus, to determine also that the nature of the executive authority in Ontario and Quebec is the same as the nature of that in Nova Scotia and New- Brunswick. Not that these Provinces had pre- cisely the same powers and authorities. That I know not ; about that I care not. Its nature is the same ; it was not of a new or diflerent nature, like a delegation to a municipality; but it is of that old nature, which lUKiuestionably included the existence in the hands of the Executive of a portion of the Kegal power. It is that old executive authority in nature, in the one case ; it is that old executive authority in nature, in the other case. Then I come to section 65, which is the par- allel of section 12 to which I have referred, dealing with the powers, authorities and functions. The same words are used as to the powers, authorities and functions vested in the Lieutenant-Governors, as were used with reference to those vested in the {.hieen's immediate representative, the Governor- General. The division of power is accomplished by the use of the same langnage — save of course that which describes the division— the same language in the one case as in the other; the power is of the same quality, of the same nature, in the one case as in the other; the executive authority as well as the Legislative authority is of the same nature ; and not merely is it of the same nature as that of the old Provinces; but I ask your Lordships to determine that the executive authority of the Provinces is of the same na. jre as the executive authority of the Dominion ; that the whole body of executive authority was divided ; and that the portion assigned to the Provinces came from the same source, was of the same nature, and was of an even higher antiquity, in the case of the Provinces to which it was in sub- stance continued, than it was in the ca.se of the Dominion to which it was, necessarily for the first time, by the .Xct ascribed. Then clause 66 places the Lieutenant-Governor exactly in the same position as that in which the Governor-General is placed, under clause 10, in relation to his Council. Clause 68 speaks of the "seats of government " of the Provinces, just as clause 16 speaks of the " seats of government " of Canada, \N'e finvl the "seat of the government " of the one, and the "seat of the govi!inment " of the other. So much with reference to Executive Power. Then, we come to the " Legislative Power," the next liea<iing ; being the same phrase, as I pointed out, which is used with reference to Canatla. We lind section (x) giving a Legislature tor the two Provinces, Ontario and (Quebec, — i\Lij<tiUttnre; a body entrusted with the pcjwcr ot making Laws; not Hy laws or Ordinances, but Ltnfs ; and in the course of the provisions as to the Legis- lature there is some reference to theOuien's name. Section 72, for example, provides that " The Leg- islative ("ouncil of Ouebec shall be composed of 24 members, to be appointed by the Lieutenant- Governor in the Oueen's name, by Instrument under the (ireat Seal " ; thus showing that the ap- pointments are to he in the Oueen's name, and that the Great Seal is the evidence of that Koyal act. It may be dilticult lo account for, I do not myself apprehend the precise reason for, a special pro.'ision in that case; but it certainly cannot be understood to mean that nothing else was done in the yueen's name. Sectiorv 75 provides for filling the vacancies in the same way. Section 82 provides that the Lieutenant-Govern- ors of Ouebec and Ontario may from time to time by instrument in the Oueen's name call together the Legi ilatures. 'J'hat was a mere starting mac- hinery to get them into the same position in which New Brunswick and Nova Scotia were already, tl.rough the continuance of their executive author- ity; into the same position as the Province of ("anada occupied in the old times. But those Legislatures are, for all that, Oueen-summond — they are to be summoned in the (,)ueen's name ; and of course their prorogation and their dissolu- tion must occur in the like mode. MacLenxan, ,I. — If she came here she could do it herself. ('ouNSEi. — Po.ssibly ; unless this Act of Parlia- ment might be deemed to be exclusive ; perhaps she might do it, though not without advice ; whether she could, and on whose advice, would require consideration. But prorogation and dis- solution are not mentioned, and yet nobody im- agines for a moment that prorogation and dissolu- tion were not to be accomplished in the same mode as convocation. Again, as evidencing that executive powers and powers to act in the Queen's name are implied, I may mention that the first Commission ind In- structions from the Queen to the Governor-General of Canada comprised a clause giving authority to the Lieutenant-Governors, to prorogue and dissolve the Provincial Legislatures ; but on a reconsidera- tion of the whole Commission and Instructions, and upon suggestion made by those then entrusted with the conduct of affairs in Canada that this provision was unnecessary, and that these powers must be held to have been vested in the Lieutenant- Governors of the Provinces by the implications of the B. N. A. .\ct, the provision was struck out ot the laier Commissions and Instructions. The force of that suggestion commended it to the Im- perial authorities ; they no longer attempt to con- fer that autliority, because they feel it to be need- less ; and the Lieutenant Governors, therefore, in now proroguing and dissolving in the Queen's name, act upon the view, which I maintain, with confidence, is the sound view, that all executive 30 auUioiiiies ie(iuireil to carry out tlic provisiDiis of the Act are iiiiplii'dly vested in the Lieuteiiant- (iovernnrs ol the I'rovinces. Now, if the consiitiitioiis of Canada ami ol the I'rovinces are ol tlie same nature-ami I think 1 have shown that tlie ccmslitution of Canada is nf tile same nature as that ol the I'rovinces, and that the consiitmion of llu; I'rovinces is of the same natiirir as that of tht; old I'rovinces helore (Unled- eration if these' \>v the facts, the next iin>'stion is, what is tiiat common n.iturtt ' As stattul in the |)reamble, it is "similar in principle to that ol the United Kingdom," It is the creation of such a Constiiuiion tli.it was beinj; effected. You have a declaration showing the character of the Ct)nsli- tutioii which the Imperial Parliament conceived it was creatin,^; ; and if you hnd these Constitutions to he of the same n.iture, then the one as well as the otlnu' is " similar in principle to that of the Huited Kingdom" My learned friend, althouKh he did not repeat tin; <|Uot.ition here, f;a\e helow, and \hc learned Ch.incellor in his jud^jment referred to the somewhat bniscp.e observation of Mr. l)icey that this plirase was an example of " ofticial mendacity "; because accoriliiiK to his view the Canadian Constitution (io(!s not accord with the principle of that of the Ctiited Kinf{dom, but is directly opposed to what he conceives to be its vital element. My le.irned friends rest much upon Mr. I)icey ; and, looking at it Irom a lawyer's Eoint of view, there are many observations in his ooU which are of great value, pertinent to this question ; but it must not be forgotten that its main purpose was to deal with what he calls "the law of the constitution " Although he touches also on what he calls " the conventions of the const it tit ion," yet he deals mainlv with that portion of the Con- stitution which is embodied in rules capablt! of being enforced bv law; and many of his ]ihrases, unless th.it guiding principle of action on his part be regarded, would be extremely misleading. To lawyers, jurists and judges it is not per- mitted to deal with Acts of Parliament after the fashion used by Mr. Dicey in the passage to which I have just referred. Our business is, as J understand it, rather to find reconciling interpre- tations ; to find, rather, meanings tor tin; language of the l-egislature which will accomplish its pur- pose and avowed intent ; and curicuisly enough, if I rightly remember Mr. Hicey's phrase, he omits that very word which creates the distinction. He says that Parliament indicated a desire on the part of the Provinces to be united into one Dominion, omitting the word " fcdt'ntlly .'' Thephrase is "to be fi-tfenilly united into one r>ominion " under a Constitution according U) the principle of the British Constitution. Well, of course if the principle of the Hriti:;li Constitution is so emphatically, so entirelv, so ex- clusively one Sovereign r.egislature,asdistingtiished from that division of the legislafi\e powers which, wdiatever the details, is an essential element of every federal constitutitm. it might perhaps be an example of "oflici.al mendacity" to say that a federal union could be formed according to the principle of the I^ritish Constitution. I')oubtless, as Mr. Dicev observes, no federal union can consist with absol- ute Sovereignfv in any one central Parliament ; because the security of the federal element of the union depends upon tlie division of the powers, anil a central Legislature, which can do as it pleases with the powers, can destroy, alter, and re-make, as it pleases, the federal char.'icter of the constitution. J<ut, as 1 say, lawyers and jurists aiul judges must look for some other nu'aning in this claust,', and some meaning which sh.all not m.ike it an example of "oflicial mendacity," but which shall m.iki; it true, and give to it a force, and power, and interpretation which shall btu'fleciual ; and this I venture to say we can find Ironi Mr, Dicey's own book. No doubt the prirciple to whiili he adverts as the essential element of the liiitish Constitution, n.amely that there exists, not merely practically, but te( hniciUy and legally, one Sovereign l.i'gisl.ilure, the principle of an entire and undivided P.irliamentarv Sovereignty, is one of the characteristics ol the British form of constitutional government ; but yet that obviously is not the principle to which Parliament was in this phr.ise adverting; because the Union is here spoken of as a " feileral Union." We must turn to anothtT, and ;>s 1 submit to the central and vital lirinciple of the Pritish C!onstitutiou, to one well known to us, and exemplKied in the earlier as in tlu^ later history of the constitutional struggles on this Continent, to tin- principle to which the learned Chancellor looks, to a principle which Mr. Dicey himstdf acknowledges may exist in a consti- tution not b.isedonone Parliamentary so\('reignty. In no less than two passages of the same learned author's book you will hnd allusions to the Bel- gian Constitution, in which he declares that it, a written constitution, not alterable by the Parlia- ment itself, and therefore not possessing this element of Parliamentary sovereignty, is a very close transcript of the liritish Constitution put into writing. That great diflerence exists ; but iu)t- withstanding that difference, it is, he agrees, a close transcript of the British Constitution. I ask your Lordships them to find that the principle of the liritish Constitution here reftnred to, the principle which I ifi\c)ke as giving the powers for which I contend, is that of free and representative and responsible Government, embracing an I'.xeciitive, invested doubtless with great powers, but exercising those powers always upon advice; the givers of which advice are responsible to a free and representative Parlia- ment ; which I'arliament is responsible to the electors, of whom we speak as tlie people. That the laws are to be made, the taxation to be imposed, the executive to be controlled by the popular assembly, always the chief, is fiy degrees becoming more and more absoliitelv the essential element. The princif'le is respomihli- dorennm iil. That is the principle. We have been familiar with it here from verv early days, anterior to and during the revolutionary struggle in the southern portion of this Continent, as bearing on the condition of the old colonists of North America. One of the greatest speeches of Edmund I-iurke, delivered during the crisis of that struggle, depicted the condition and the reasonable desires of those colonists He pointed out that up to that time t)ie main point on which, in England itself, the attention of the masses had been concentrated, round which the battle for freedom had raged, and which had npturallv enlisted the attention of the newer haigland, as drawing light from the lessons of old England, was the point of taxation. He pointed out that England at the time he spoke was binding her Colonies commerciallv in the straitest bonds; but that, while used to, and through habit bearing those commeroial bonds, those fetters on trade and 21 manufactures, liey foiinil ilieir cotupensaliuii in the allowance, in all other respects, ot the form and the substance ot the Uritisii Constitution, in the possession of practical heeiloni, ol pi.ntical self-«overninent, of the exclusive power ol hjcal taxation. lUit, he said, if you aid to your monopoly in hindiiif,' their trade a claim to tax them too, you make their condition slavery. They are prepared, lor the compen^^aiions. to con- tinue to hear the one; they wdl not endure the addition ol tlu; otluT. 'I'luis, that ^reat man de- scrihed the existinR powers (jf local free sell-govern- ment ; and thus he pointed to the weaksp(j;,to that which easiest roused their attention, ami stirred tlieir jealousy, their aversion to the notion that taxation shoukl he laid upon luiKlish subjects, on either side of the Atlantic, by any others than themselves. That, as he arKue<l, li.id been the centre around wliii h the constitutional struggles of KiiKland liersell had been fouf,dit ; that hail been the fortress of I'.nnlish liberties, to deny it to their I'.n^jlish fellow subjects ill .America would be alike futile and dangerous; and he asked that tlu; cl.iim should bt! renounied 'J'he claim was in the end ren(jimced, althouKli too late for the immediate object ; and Mr. Dicey, K'ving an example ol fundamental laws (which yet, as he says, the rarliament of Creat Uritain h.is, of course, the technic.il power if it pleases to repeal) cites, as the most coK^nt and illustrative example of !,iws whicli are after all practic.diy irrepe.al.able, the law declaring the renunciation of that powerof taxation. Well, in those olil days, when the Kej,'al jjower was so much more imposiuf; in form, and indeed so much greater in substance, than it has in these later days became — in tho.se old ilays, esen as to colonies of inferior and different natures, ;is to the constitution of tlieir executive authority, from ours — in those old days, with resjiect even to colonies, whose charters were so democratic that their inhabitants had the power to elect their own Ciovernors, this prerogative of pardon appertained to the locality, belonged to the colony, was exer- cised liy the liead of the I'L.xecutive. A (iovernor, though elected under a democratic charter l>y the people, was entitled to exercise the preiogative of jiardon, The Deputy of the I'rojirietor of a colon\-, as in the case of William ['enn's colony, now the great State of Pennsylvania. exercised that preroga- tive. So far was it from being incommunicable; so far was it from being an (.'xclusi\e or peculiar prerogative of the Crown ; so far was it from being a power to be exercised only by someone specially chosen by and having the sjiecial cfmfidenre f)f the Monarch, that a man elected by the locality, or a man nominated by the subject Proprietor of the soil, the man, however chosen, who possessed the executive power, was, even in tho.-se old days, com- petent to exercise the prerogative of pardon. After the Revolution, our own country, so far as it was not occupied by the old subjects of France, was settled very largely, in the first instance, by those who had opposed the Revolution, had ad- hered to the liritish Crown, and preserved, under very difficult circumstances, their attachment to Monarchical institutions. For a considerable time, and reasonably at first, having regard to the ex- tremely rudimentary character of the settlement, to the enormous area of territory, and to the sparseness and poverty of the population, a kincfof semi-paternal government was exercised ; all the more readily borne by reason of these views of the IJnited lunpire I.oyrdists. Hut from time to time, as we know, there came demaiuls for greater Ireedom of action . ;ind the form of our struggle heri! was tht! light f.>r wli.it was popul.irly known as Responsible ( loveriimeiit It did not turn, of course, upon that which had been reiKmnced, ;ind renouiued lorevt^r, the (pinsiion of tax.itioii . but it turned upon the other elt-meius ol Responsible (ioveiiiment Matters there wen; doubtless which came near to the money (piestion. What the people oi the northern portion cf the continent dem.'iial in these as in other matters, w;is the ap- plicati<m u( the great principle tluit the executive authoritv, while continuing to be exercised in the name of the ('rown, should, in local alfairs, be exercised upon the same principles, under the s.ime responsibility, with the same rights, and subject to the same securities to the people governed, as witliin (Jreat Britain herself with regard to the Hritish subjects inhabiting the Hritish Isles. 'I'hat, shortly, was the demand ; an<l what were the answers "■' Two mainly. First it was said that the step would endanger the con- nection of the countrv with the mother land , next it was said tli.it the peop.le of the Colonies were not wise enough to govern themselves. Well, the answers were liisputed ; sometimes by argument and agitation ; sonuuimes by insurrection ; and in the end it was seen that the only way to carry tm affairs was to recogni/e the principle of Responsible (iovernment in rdl things which did not directly concern the Imperial power, or Impcrird interests; to concede in the fullest and largest degree local government in local aflairs. Thus R,:i/^on.<iih!e (iuvernment, which wit lu^re had during these struggles consecrated as the vital principle of the of the Hritish Constitution, wris introduced among us. Thus that principle, which you will lind expounded by Mr. Dicey when becomes to deal, as in various parts of his work he do(!s deal with the other part, the extra legal part, the unwritten or conventiop.'d part of the Constitution, that part which is not embodied in laws capable of being enforced in the C'ourts, was recognized here, —the principle, namely, that it is the people at large who govern themselves, who are self-governing, through the medium of their elected representative .Assemblies, which .Asseinblies substantially choose their executive councillors, which councillors advine the Head of the Governnient, which Head acts upon that advice. Thus a chain is formed between the people and the Crown : a link is created between the governing and the governed ; and the whole (|uestion is so solved. It is then upon that great and central principle of the Hritish Constitu- tion, applied to the locality with reference to all matters which concern the locality, that we arc, as I maintain, to interpret this Constitution ; and that, of course, not nierelv as to the Dominion of Canada, but also as to the Provinces of Canada. Now a line of demarcation, howe\er vague, must bs stated ; and the only tangible line is that be- tween Local and Imperial interests. .And it will be found not uninteresting to remark that, in this very (piestion of the power of pardtm. Imperial inierests mav. to some extent, intervene ; that their possible existence has been recognized ; and that they fur- nish an admitted possible ground for Imperial in- tervention, by the exercise of the power of pardtm i.i certain instances, however rare, in which per- haps the Local authorities might not be disposed to exercise it. 22 Turning again to the claiisi-s i)f tlio Act, tho view lliiU ours IS a jjoverniiu'iit (uiindfil on that priiui- pie of thu Hiiiisli Consiitiitiiin which 1 have de- c;riheil, is (Milorceil oiu c more l)y liic suKneslion as to the oUl I'rovinces. Sei-'ion HS continues the constitution of tiu! I.enishiiure of eacii of tlie I'lo- vinces of Nova Scotia and New Hriinswici< as it exists at tile Union, 'I'liey are not re-inade, they are not created, they are continued. I'lause i)o a[>plies to each of tin- four Provinces very important provisions, maile in the constitution of Canada all of a political and constitutional u.itiire— provisions as to appropriation and lax hills, recommendation of money votes, assent to hills, disallowance of Acts, and so on, showing once again the identity in nature of the two con- stitutions, th.it they are not dillerent. one lieing of inferior order or character to the other, hut that they are the sauK; in n;itiire ; and in truth it is hy reference to the one that these most important constitutional elements are imported into the others. Then, under head (> you find the distribution of the legislative powers, I call your Lordships' .itteiuion to that, hccaiise, as I have said, I read the whole constitution together, in order to find from the nature of the legislative, a clue to the nature of the executive authority. Here it is pro- poseil to deal with the Icj^iislative powers of Can- ada and the Provinces. What plirase is used ? " Distribution of legislative powers." One mass of legislative powers ; the same powers ; powers of the same nature; powers of the same character, are dealt with together ; and of these cjiie portion is assigned to the Parli.iment of Cinada, and another portion to the Legislatures of the Provinces. "Distribution of the legislative powers" The nuss is divided. You cannot say th.-it that portion of the mass which is handed over to the Provincial Legislature is handed over as of any dilterent essence, of any inferior kind, of any lower nature than that wliich is handed over to the Canadian P.irliament. " Pnvers of the Parliament " is the sub-heatl for Canada; and when you come to the portion of the [legislature, wiiile you find the mass divided between the two. the only difference you see is this, that no less than three times there is jealously repeated a reference to the ^'exclusive powers of the Provincial Legislatures" as dis- tinguished from the powers of I'arliament ; so that any distinction is in favor rather of the Legislature than of the Parliament. Then when you come to 92 : — " Exclusive powers of Provincial [legislatures," you find " the amend- ment of the Constitution." a power of the very highest and most sovereign character. The [5. N. .\. Act, therefore, may be amended by the ['rovincial Legislature in this most vital point, a power which the Canadian ['arliament does not enjoy as to its constitution, a power which indeed could not there subsist without certain safe-guards, checks and limitations, else the federal form of the constitution and the compact on which it was based would be imperilled. The Canadian Parlia- ment has at present no power of amending the constitution of Canadr. ; while the Provincial [legislatures have power to amend their consti- tutions, except with regard to the l^ieutenant- C.overnor. But for that limitation, as already explained, they might break the link altogether; they might forbid his communicating with the Governor-General ; they might alter the tenure of his ottice; they niight abolish it altoj^ether. To avoid such possibilities was the jiiirpose of the exception. |-liit inasmuch as they ha\»' power to amend the Constitution, exct'pt as regards the Lieutettinaiit -Governor's oflice ; and also, by the ().(tli section, to which [ have rtderrcd. ha\e power to abolish or alter his functions .iiid .lutliorilies ; it is cle.ir tli.it in all things, with the exception of a constitutional ;iiiK!n(lment allccting his office, they hiue power to ch.'al (!vtMi with the Lieittenant- (jovernor. It is as I have said the Conslitutinn itself which is in this respect, not amendable, "'['he amc:nd- ment of the Constitution of the Province " There is no limit as to the amendability or repeal of Acts existent at the; date of. or which might be p.assi^d thereafter under the Constitution. And, as I h.ive tried to jioint out to your Lordships, the unity of the executive .authority would be imper- illed, and the \(;ry object which was contemplated by th(; rc!servation ini]iaired by any (5ther view. I submit that the Province can ;idd to the (executive powers of the Lieutenant-Governor in ['rovincial affairs, when necessary in order to render more efficient the administration of those affairs; when recpiired in order to effectuate legislative provisions; and in all respects, germane to his office, in which further grants of executive power may be usefully gi\en to that officer. And [ point out that it is impossible that by such action the [)omini<)n authority or his position can beaffected; on the contrary the l'ro\inc»; thus magnifies his place, [t can then gi\e tlu^se powers, [f not the only alternati\e is tli.it it must set up some; other officer. [<iit 1 do not understand the position that such additions as [ suggest can be made to l)e seriously conirovertcHl. (.Vdjourned 5 p.m. until 11 a.m. October 2nd.) ^[u. [^i.AKK resuming — I had finished my re- marks with reference to the first article of clause c)2 of the .\ct. and was about to point out to your [^ordships that there is in that clause a whole series of what may he called Sovertngn powers in the matter cjf law making; but [ wish to call your [.ordships' attention to the fact that the power of law making is verv wide as defined at the com- mencement of clause 92. Tlip Le^islatiiro m:iv ('X(■Ill^ivelv m ike laws in relation to matters comiImc: witliiii the classes of subjects next lierein itter enumerateil. [-aws which are " /// relation to matters coming within Ihf cniiiiiern ed classes of suh/ects" are laws within the exclusive power of the Legislature. The phrase is one the terms of which are perhaps impossible of enlargement, and are certainlv much opposed to the narrow construction which my learned friend suggests as to the legislative power, [t seems to me that a [.egislature which may make laws " in relation to matters coming within the classes of enumerated subjects " may make a law to supply any defect, and to grant power to deal with any phase of any matter involving adminis- trative action, for the inore perfect operation of ex- isting laws, or the more complete execution of the will of the [legislature, as defined in any existing law, as well as in connection with contemporaneous or future legislation. The articles to which I particularly call your Lordships' attention, as indicating a sovereign law- making, and as of course a complementary sovereign executive power, are : — Taxation ; [^ais- 23 itiR money on tlie credit of the Province; Tiie (■st,il)li>.limi'tit of l'ro\ im iai odiiers , 'I'lie niaiia^c- nu'iit and ^ale ot puljlic lands (wliicli are tilt- (ruwn lands), Prisons. Miinici[)al inslitntions, (which wt! can make and iininakf, and theMtforc are not onrselvcs) , Licenses; I'nlilic works; I'he iiicorpor.ition of companies, I'rcjperty anil civd riKlUs ; Thf administration of justii(% with certain e.\i epiion>, hnt includinj{ the imposition of pnn- ishnients to the extent necessary to render eltective our lenislali(jii on any snbject. If it were not that the making of the criminal laws, and the appoini- miMil ot the Sn]ierior and County Court Jud^'es, ari! ahsiiact<;d from the Local ancl pl.-icnl within the I'eileral jurisdiction, the whole aiiminstration of justice woidd he l'ro\iiu'ial. l''ven as to jiidiiatnre, while the Superior and County '."ourt .lud^t's are rt^noved, the MaKistracy and the (Courts of inferior jurisdiction are left. As It is, as i pointed out in J'lif Quffii v. Wtiuni, thf; main part of the soverei^jn l.e^;islative pijwep is I'rovincial. I defer a reference to the specialties of Pardon, which might naturally arise upim this ijuestion of the administration ol justice ; thinking 1 can more clearly deal with it by concentrating my positions in a later part of my argument. It is clause iO() tiiat de.ils with the (!rown lands, Mines and t<oyalties; and, upon that, very per- tinent observations with reference to mines and royalties are to be found, as I will show your Lordships presently, in cases decided by the highest tribunal. 1 he 1 17th clause shows that the Provinces rc/(i/« their property ; another phrase, in addition to those which I hive already pointed out, indicating the continued existence of the old Provinces; it is not a granting of the property, but a retaining of the property that is effected ; and upon this I would also refer, for the sake of l)revity, to my printeil argument in St. CiUhtitines v. the Qiii-cit, the (Jntario Lands Case, which deals with that phase of the construction of the J^ N. A. .Act. Clause i2() deals with that portion of th(^ duties and revenues reserved to the Provincial Ciovern- ments and Legislatures-- not granted, but rcsfrved to the Governments and Legislatures; and forms of them a consolidated revenue fimd for the Province, just as clause 102 does for Canada ; another example of the identity in nature of the constitution and the constitutional powers of the Dominion and of the Provinces. Clause 120 continues all commissions, powers, authorities, laws, and so forth, subject to be re- pealed or altered by Parliament or the Legislature according to the authority of Parliament, or of the Legislature, under the Act. I^ach is thus continued for each jurisdiction, subject to repeal or alteration by the appropriate body, according as the division of powers throws the subject matter within the jurisdiction of the local or the federal authority. Clause 134 authorizes the Lieutenant-Governors of Ontario and Quebec, under the Great Seal, to appoint political officers, ministers, including the Attorney-General, and the Commissioner of Crown Lands ; the Great Seal being, as I said, the recognized instrument of the manifestation of the Royal will. Clause 135 vests in the members of the Govern- ment to be appointed by the Lieutei^ant -Governor, until the provisions are changed by the Legislature, all authorities and functions of the old members of the old (^lovernment ; once more shewing that it was the old constitution whic h vv.is ccitiiuii'd and kiipt in force; save to the extent to v^liich it was nece-.sary to provide new macliiiiei y , in order, lirst, to the re-divisi<.n of th»! Provinct; of Canad;i into its (lid parts, Upper and Lower Canada, and secoiKJly. to the establishment of the limit.itions reipiired by the iidoptioii of a federal constitution. (.Clause 13') provides that the Great Seals of Ontario and Quebec shall be, until altered by the Lieiiten.int-Governor, ihe s.ime as those of old I'jjperand Lower Cmad.i. Thert- you find once again an evidence of the restor.ition, or re-creation, or revival, or resurreclion of I'pper and Lower Can.id.i, S'ou lind that tlnir (ire.it Seals are pro- vided, and that till! Liriiteiiant-Guvernor is indi- cated as the power to alter their ( Ire.it Sirals. Put you hnd nothing wh.itever about the Great Seals of Nov.'iScotiaand New Hrunswick. Why ? Hecaiisein their c.ises, where tin; existing entity was not being changed, there was no need so to pros ide The con- stitutions in both the executive and legislative branches of Nova Scotia and New Hrunswick were contiiui<;d, subject to certain changes. There- fore, there was no necessity to deal with their Cireat Seals, and their Great Se.'ils wi;re, without provision, the same old Great Seals. ,\s a fact, it may be observed that subseipiently, shortly after C^onfeder.'iticm, the Qut^eii c.iused Seals to be designed and provided for all four of the Pro- vinces, and for Canada, and that a combination of those Seals which were suggested to and .accepted by the Provinces formed the Se.'il for Canada. (Mause 140 provides that : - .\ny prncl.Tnialiiin wliich is .TulliDfized hv .iny .Act ot the I.ORislature of the I'rnvinct- ot Canada to lie issncil iiiuler the (Ire.it Seal of the Hrovinre of Ciiuuia whether relating to that F'rovince or to CpinT ("aiiad.t or to Lower C.iiiada, and which is not isMied hclore Ihe I'nioii, mav he issued by the I.ientenaiit-(i(ivernor of ( liitaiio and yiiehec, as its suhject matter lequires, nnilcr the Great Seal thereof; and from and .itter the issue of siirli Procla- mation tlie same and the several matters and thiiiKS therein proclaimed shall lie and continue of the like force and ettect in Ontario or Quebec as if tlie Union had not been made. Now, before passing to some of the ■authorities which illustrate the meaning to l)e given to the relevant provisions of the B. N. .\. Act, I wish to refer to a few definitions of some of the phrases already quoted. Worcester's definition of the words "Great Seaf:— "The principal Seal of a Sovereign or of the chief executive officer of a Government for the sealing of Charters, Commissions, etc." Worcester — " Lieutenant ; one who supplies the place of a superior in his absence, a deputy." " Lieiiteuant-Guvermir ; An officer next below the Governor, and who acts as chief magistrate in case of the Governor's death or resignation ; a Deputy- Governor. In some luiglish Colonies jointly under a Governor-General, the chief magistrate of a single colony." Webster — "Lieutenant ; an officer either civil or military, who supplies the place of his superior in his absence." Webster— " £.r('fH/ivf ; (The noun) The chief officer, whether King, President, or other chief magistrate, who superintends the execution of the laws, the person or persons who administer the Government ; executive power or authority in Government." ..• - 24 WehMer—"E.vecHliTc; (the adjective) In Gov- ermiiunt, Executive is distinf^'iiishcil from legisla- tive and judicial ; (legislative being applieil to the organ or organs ol Government whicli make the laws ; |iidicial, lo that which interprets and ap- plies the laws ; Kxecutive, to that which carries them into eltect." Imperial Dictionary — Executive; (the noun) is defined just as 1 have already read it frcjm Webster. Imperial Dictionary — •'Executive ; (adjective) Ha\ing a (juality of executing or performing ; as, executive power or authority ; an executive ollicer ; hence, in (Government, Executive is used in dis- tinction from Legislative and Judicial. 'I'he body that deliberates and enacts laws, is Legis- lative ; the body that judges or applies the laws to particular cases is Judicial ; the body or perst)n who carries the laws into effect, or superintends the enforcement of them, is Kxecutive.'' Worcester — -'Executive ; (noun) The executive pow-er ; the person or the power that administers the Government ; an executive oliicer. " The word is sometimes so used in luigland, but this use of it was first introduced into this country ; and it is now commonly applied to the President of the Unif^d States. The Constitution of the LInitetl States has the phrase ' Kxecutive power,' but nol simply the 'Kxecutive.' " Turning to the authorities, I have tried, although they are perliaps inextricably interlaced, to draw some distinction between those which touch more directly on the legislative and those which touch moie diectly on the e.xecutive power; and I trouble your Lordships first with a reference to those which ileal more directly with the legislative power, tiirowing, as they do, clear light upon tliat executive power, which is, as I maintain, co-ex- tensive with the other. (jueen vs. Fiawley, 2 Cart., p. 376. At p. 591, Spragge, C. J. (juotes Chief Justice Marshall's statement of the powers of Sovereignty as divided between the Government of the Union and the Governments of the States, pointing out that They arc eacli sDvereiBii witli respect to the objects com- mitted to it. and neither sovereign with respect to the objects comiiiitteil to the other. He 'juotes further : — It may, with ereat reason, be contended that a Govern- ment entru-itetl witii sucli ample powers, on the (hie execution ot which the hapi)iness and piosiierity of the nation so vit.dly depends must also be entrusted witli ample means tor their execution. The power being (jiven, it is the interest of tlie nation 10 facilitate its execution. It can never be their interest, and cannot be presumed to have been their intention, to clog and eud)arrass its ex- ecution by witliholding tlie most appropriate nieau^. Then Spragge, C. J. proceeds to observe ; — ■ The powers assigned by the ("onfederatlon .Vet to the Provincial I.ejrislatures are large and various ; and it is not too nuicli to say th.it it is a reasotiable contention that Lesislatures entrusted with sucli powers, on the due execution of wdiicli the happiness and prosperity of the Provinces so largely depends must also be entrusted with ample means for their execution. The learned Cliief Justice had to meet this dilficiilty, that the Constitution of the United .states does not confer ujion Congress power, as the Confederation .Act conters upon tlie Pro- vinces power, to make laws " In relation to " the enumer- ated classes of subjects ; but onlv such powers as may be " necessary and proper " for carrying them into execution. After cominenting upon and interpreting the language used, the Chief Justice proceeds : " so with respect to tlie wli.de penal code ot the United States. Whence arises the powt r to punish in cases nut prescribed by the Constitu- tion 'i .All admit that the Government may legitimately punish any violation of its laws ; and yet this is not among the enumerated powers of Congress " The good sense of the public has pronounced without hesitation that the |)ower of iiunishment aiiperlaius to sovereignty, and may be exercised whenever the .Sovereign h.is a liKht to act. as incident. d to his constitutional powers. It is a means tor carrying into execntum all sovereign powers, and may be usetl, altliougli not indespensibly neces.sary. It is a right incidental to the power, and conducive to its beneficial exercise." J'hen after another quotation Spragge, C. J. s;iys : — It enunciates clearly and forcibly, constitutional doc- trines which, from the nature of the Constitution of the Uuiteii States, have been necessarily presented to the Consideration of tlie Judges ol lh.it country more than has been thec.ise in l''.ni;l.iiul. and which, since Confetler.itiou, have an important bearing 11(1011 the jiowers of the Uoiiiiuion and Provincial Legi^latuI■e. Severn v. The Queen, i Cart., -(14. At page 453 Strong, J. says : — I think everything indicates that co-equal and coordinate lefiisi.iiive powers in every particular were conlerred by the .Act on the Provinces, and 1 know of no principle of inter- pretation which would authorize such a re.idiug of the li. .N. .\. Aci, as tliat proposed. H.id .sm:li been the design of the fraiuers of ilie .Act. the ineunirif; cjf which I can only dis- cov(u' from the words in which it is expressed, we should have t'oiiiid the ease provided for. Hoiifre v. The Queen, 3 Cart., 144. Spragge, C I . at page 167 says : — I.ooliing at tlie classes of subjects legislation upon which is coininilted exclu'-ively to th<^ Provinces, it is very appar- ent that it was iiitendCd th.it tlieir Leyislaturi'S slioiild posse>s very lar^e and aiiiiije powers in relation to all sul>- jects of a local and domestic nature. They liad possessed plenary powers upon these subjecis before Confederation; and tlie general seheuie of Confederation appears to liave been to leave to ilieui the plen.iry control of iliese siilijects. They were, under llr' .Act, Legisl.itures in reyani to itiese siibjeet.s in the true and hill sense of the term. This is tlie more apparent from ihe use of tlie words "exclusive" and "exclusively," (and they are used repeatedly) in the Im- perial .Act. Other legislation upon these classes of sulijeels is excluded. No .alteration, no amendiuent, no perfecting of any measure, falling within tliese classes of snhjecls. can be made by auv autiiority outside of the Provincial l.enislature. It is llierefore necessary tli.it thi' I'ldvinci.il I.egisl.iture slioiild possess plenary power in relation 10 all these sub- jects, to change, anienii. repeal, re-enact, .lud in short to deal with them as ch.inge of circumstances or oilier exigencies might leiuier pro|ier ; the propriety of changes in any sh.ipe lu.iife. not to III; eiialleiiged by any other legislative authority, ami die powi^r to iiiaKe them being limited only by the rule, wlietlu^r the law making the rhange is within the class of subjects legislation ujion which is assigned to Provincial Legislatures. At page 181 Burton J. says : — livery Governmrnt which is supreme must have the capa- ciiy to make its own commands ohcved. The Provincial I.egisl.itiires, as I have shewn, within their respective spheres, .ire al).;oliitely suprrmc. It follows that wluuever the Provincial I.egisl.itures have power to enact any parti- cular measure, wliether tlicv may require anything to he (lone or forborne in curving out the powers granted tn tlitnii by the [luperial Parliament, lliey must li.ive of necessity tlie power to enforce, and we should not look for any express power but for the fact that the' criminal law generally is given to the noniiuion. Heiiri' it became neccssarv to give express and exclusive power to the Provincial Legisla- tures to declare arts of disobedience; or aeis which have a tendency to interfere with the iiroposcd measures to be crimes, and affix such punishments as it deemed pioper. .And at page 182 ; — It would seem almost a misapplication of terms to refer to the Provincial Legislature as exercising a delegated authority in Ihe seii^^e of being an agent of the Iniperi.il Parliament. The Imperial P.irli.iment his the po" er, no doubt, to pass l.iws such as those passed by the .or.il Li;gislatme and affecting all Her Majesty's siibit, i> m the Province, but it is equallv clear thit it is a power existing in name only, and one which it would never attempt to exercise, and therefore the P.irliameut of the Province cannot in that sense be spoken of as exercising a delegated authority. It is true that Parliament gave both to the Dominion and to the Provinces the constii,.*'ons under which we live; both limited in extent, but both giving representative iiisti- 25 tmions, aiiil wivinn to llio I.fnislauiics elcctrd in llic iiiaiiiur ilirrciu pciiiitcd (iiii, plenary piiwfrs of linisl.aioii willihi thpir rcspcrtiM-' splicics as lainu ami aiiipli' as iliosi' iil the Imperial I'ariiaTiiiiu itself. The Legislatures so electeil have a (ieletjaled authority il is true, but it is of the same charaeter as that of the [iiiperi.il I'arliaineiit, who are collect- ively the (ii-lenalns of the whole people. Qnccn v. Buruli At pa);t; iSS of ^rd (!nrt., lliere i.s a passage cited from Lord Selborne's judg- ment : — The [ndian I.enislatiire has i)owers expressely limited hy tile .\et of the Iiiipirial l\'.rliameii' uhich created it. and it can, of course, do nothinu heyond tin,' limits which circum- scribe these powers. Hut, when actin;; within those limits, it is I It ill any seiist; an anent or delegate of tlu^ Impiri.il ParliaaiiMit, but has, and was intended to have, plenary powers of le>;islatinn, a>, lar^e, and of the s.inu! nature, as those of Parliament itself. Queen v. Hii(li;-e, ^rd Cart. At page 162, I'rivy Council judgment, is to l)e found the well-known passage, speaking of the misconception as to the true character and position of the Provincial Legis- latures ; stating that they are in no sense delegates of or acting under any mandate trom the Imperial Parliament ; that the ;iuthority is as plenary and as ample within the limits prescribed by section 92 as tlie l.nperial Parliament possessed itself and could bestow ; that within those limits the Local [.es;islatnre is supreme, and li. is tli<> same authority as the Im|)erial Parli,inieiit, or the Parliament of the Dominion, wonid have had under like circumstances to con- fide to a municipal institution or body of its own creation authority to make by-laws or resolutions as to subjects specifieil in the enactment, and with the object of carrying the en.ictmeut into operation and effect. It is obvious that such authority is ancillary to let,'islation ; and without it an attempt to provide for v.oyinn details and macliim ry to carry them out mi^lit become oppressive, or absolutely fail. The very full and very elaborate jiidKnient of the Court of Appeal contains .ibundance of precedtMits for this legis- lation, entrustiui; .1 limited discretionary authority to others, and has many illnstraiious of its necessity ami con- venience. It was arRiied ,at the b,ir that a Legislature com- mitting important rennlations to ayents or delegates effaces itself. That is not so. It retains its powers intact ; andean, whenever it pleases, destroy tlii^ a^;eucy it has created, and set lip another, or t.iko the matter directlv into its own hands. How far it shall seek the aid of subiirdiiiate aKcncies, and how loiiH it shall contiiuu^ them, are matters for each Lef;is- lature,aiid not for courts of law, to dc^terniine. ♦ ♦ * * The Provincial Lenislatiire, having thus the authority to impose imprisonment with or without hard labour, li.as also power to (iele«,ilc similar authority to tlu^ mnnicip.d body which it created, called the License Coumissioners. Blink of Toronto ~>. Lnmhe ; — My reference is to L. R,; 12 App. Cas,, p. 586 : — Theiiit issuRKcsted that the Le(>islatnre may lay on taxes so heavy as to crush a bank out of existence, and so to nullify the power of P.trli.iment to erect b.iiiks. Hut their Lordships cannot conceive th.it when the lmi)eii.il Parli,iinent con- ferred wide powers of local self->;overniuent on Kreat countries such as (.juebec, it intended to limit them on the speculation that they would be used in an injurious manner. People who are trusted with the great power of ni.ikinn laws for piopertv and civil rlt;bts may well bi' trusted to hvy taxes. There are obvious reasons for conliuiiiti their power to direct taxes and licenses, because tlii' pow( r of indirect taxation would be felt all over the Iloniinion. Hut, whatever power falls within the legitimate meaning; of classes two and nine, is, in their Lordships' juilnment. what thi! Imperial Parliament intended to nivt^ ; and to place a limit oil il liecause tlu^ power may be used unwi'iely, as all powers may, would be an error, and would lead to insuperable difficulties, in the conslrnction of the Federation .\ct. The Alty-denl. a/ Ihilish Columbia r. Atty-CnnI, of CduaiUi ; 14 .\pp Cas. 2135; Arguendo by Coimsel for the .\tty-C.enI. of Canada ; at p. 2i).S and at p. ^oi there are phrases which are import- ant as indicating the view of the Counsel for the Dominion. At page ^o2 there is a discussion by the Court in which they point out that, according to the law of luiglanii, goki ind silver mines, until they have been acttially severed from t)ie title of the Crown, and vested in a subject, are not regarded ;\^ p lies soli or as incidtiuts of the land in which they are found. Not only so, but the right of tlie Crown to land and the iiaser metals which it cont.iins stands upon a different title from that to which its right to the precious metal must be ascribed, and they show that mines of ;^old and silver within the realm, win liier they be in the lancl^ of the (.Ineeii or of subjects, belong; to the (Jiieen by prerogative, with liberty to diy and carry away the ores tlu reof. and with other sucli iucidiMits thereto as are neces- sary to be used for tlii' >;ettiiiK of the ort.'. After that statement of the nature and ciiar- acter of the title to the precious metals, In British Columbi.i, says the Court, the right to |)ublic binds, and the right to precious metals in all Provincial lauds whether imblic or ])iiv,ite still rest upon titles .is distinct as if the Crown h,id never jLirted with its beuehci.il interest ; and th(' Crown assigned these beneficial interests to the Ciovernmeiu of the Province, in order th.it they might he appropriated to the same State purposes to which they would have been applicable if they had riinained in the possession of the Crown. Although the Provincial Govern- ment has now the dispos.il of all revenues derived from pre- rogative rights connected with l.ind or minerals in British Columbia, these revenues differ in legal quality from the ordinary territori.il revenues of the Crown. It therefori? a|)peais to theit Lordships that a con- veyance by the Province of "Public Lands" which is, in substance, an assignment of its rights to ap|)ropriaie the territorial revenue-, arising from such lands (l(jes not imply any transfer of its interest in revenues arising from the pre- rogative rights of the Crown. So it happened that a transfer by the Provincial Government of British Columbia to the (Jueen as representing the l)o!ninion of C'anada of a large block of the Crown lands was held to transfer the soil only of Crown lands, not including the prerog- ative rights with reference to the precious metals, but on the contrary excluding those prerogative rights, which remained in the Crinerntnent of l?ritish Columliia. So thorough and full was the transfer of prerogative right to the I'rovince, and so narrow was the construction to be given of the grant which the Pro\inci;il (jovernment inade of the C'rown lands, that the Court held fust that the Province obtained, and secondly that it did not, by its conveyance of the land to the Crown in the in- terests of Canada, part with, the prerogative rights to the precious metals. Hi.'HToN, J. — I tmderstand you to say that was without any exception in the grant ? (.'oiNsKi. Without any e.xception in the grant. It w;is held to be .-mother and ditterent title, a pre- rogative right which the (!rown was not to be as- sunu'd to be granting, of which the Crown in l^ritish Columbia was not, even by its transfer to the Crown in Can.ifla, disposing; but which itretaineil ; thus throwing, I think, a very strong light upon the sovereign character of the powers and upon the high position of the Provinces I refer also, without reading the (jiiot.ititm, to the judgment of the Chief Justice of this Court in 17 Ontario, 2ji, Jueeu ;<. \Vtison, and to the judgment of Osier. J. at page 2.}3. Eudlich on the Interpietiilion of Sttitutcs, section 5-55. iw«e 753- — Whatever is indispensable to render effective any prnvision of a constitution, whether the same be a proliibitinn or restriction, or the grant of a power, must bi: deemeil implied and intended in the provision itself, so tliat, wherever a general power is given or dutv enjoined, every particular power necessary lor the exercise of the one and the per- formance of the other is given by implication." Coolry's Coiialiliilioiuil Liiiiilatinns, .(tli i- iitinn. cliapter 4, page 77 ; — Tlip iriiplirailoiis from tlit^ provisions of a roiisiiiiuioii arc soinciiiMi's I'xcridinnly iiiiportaiu. and li.ivc lari^c iMthunn- upon its consirni'iion. In regard to ilii- consiitnilon oftlic United Slates tlic rnlc has lirin laid down that wlnrc a Hcnoral power is cotderred or a (hay enioined, every par- ticular power necessary for the exercise of ijie oni', or the peiforni.ince of tli<j other, is also eonferreii. 'I'lie same rnle has lieen applied to tlie State constitntion, with an important modification, liy tlie SiipuMne Court of Illinois. It quotes the rule ns stated, 'I'lie rule applies t<> the exercise of power by all ] V'p.utmeiits ami all oliicers. Po7i'i'l! V. ApolUt Caiitllf Caiitpiny, < Cart., page 442. After citing two passages in (,Jiieen v. lUirah and Hodge \'. The Hiieen, to which 1 have already referred : These two cases have put an end to the doctrine which appears at one time to iiavi' had some cmrency, tliat a Coloiii.il l.e^islailire is a delenale of the Inijierial Legisla- ture. It is a I.e}.;islatnre restricted in the air.i of its jiowi'is, Init within that ana nnrestricted, and not acting .is an a^ent or delf.'Hate. And in the report of the same case in I.. R. 10 App. C"a., page 2i)i : — It "S arKne<l that the tax in question has heen imposed liy the Government, and ?iot by the I.t'nislatnre, wlio alone haii power to imiKisi^ it. lini tlie duties levied tnider tlu; Order- in-("oiMicil are really U'vied by the authority of llu'.\ci mukr wliich the order is issued. There the contention was that the ("(institutional Act authorized the Legislature to levy duties ; but that it tlid not authorize the Legislature to empower the Oovernor to levy duties, a power which they had assumed to give. LUit the judgment says: — Hut the duties levied under the ()rder-in-Council are really leviinl by the aiuliority of the .\ct under which the order is issued. The l.e^iislatme has not parti'd witli its perfect control over tlu! flovmnor. and has the power, of ctnnsp, at any moment, of withdr.iwiui; or altering thi' power which they have entrusted to him. So that the method of handing ovtu' the legisla- tive function to the lixecutive was expressly recog- nized as competent ; and that even with reference to the important and peculiar iiuestion of taxation. Now, with reference to the authorities, which, dealing more or less with the same subject, touch a little more nearly or expressly, upon the executive power. I may refer your Lorclshiiis in the tirst place to a siatemen" made in " Tudil's Parliumcnt- ary Guverumcnt i)i /he British Cnhiuii's," jiages ^()S to 40;j, with all of which 1 do not find m\ self able to agree, but the general statement of which is, I think, fairly accurate, and at any rate, worth perusal. It deals with the positi m claimed for the Lieutenant-Governors of the Provinces oft.'an- ada, concluding with the statement ; — It is evident, therefore, that, in a modified but most real sense, the I.iriiteiiant-Governors of the C.iiiadiaii Provinces are representatives of the Crown. I also, in the same connection, refer to an article in Rose-Helford's Cuiiiidiiiii Monthly, of which I happen to have a separate print which 1 w ill hand in for the convenii;nce of the ('ourt, calleil " A sketch of the jirerogative of the Crown in Colonial legislation." It is by Mr. Modgins, the present Master of the Court of t^hancery. It contains a very large number of references to the authorities, and to the methods in which the prerogative was exercised in the early Colonies, and will, therefore, enable me to omit the detailed statement which I might otherwise have felt it my duty to make of tlu; position in tlu; old Colonies before ihe Kevolu lion, a point to which I have already brieHy ad- verted I'he case of ThchcrL^c v. Laudiy, in 1 Cart , page 9, is not wholly unimportant. Ihere the I'rivy Council had to deal with the question whether there exisled a right to appeal from a decisit^n of a Tril)iinal empowered by the Legislatiue of (Juebec to (li;al with matters of election to the Assembly of that Province. 'Ihe Court says ; — These are considerations which lead their I.ordship.s not ill any way to infrinne, which they would be far from doing, upon the general principle that the preiogative of the Crowr, once established, cannot be taken away, except by express words : for that was the suggestion there, not that it coidd not be taken away at all, but that it coukl not be taken away except by express words — but, to consider with anxiety whether in the scheme of this let;islation it ever was inteinleil to cie.iie .1 ti ibimal which should havt% as one of its incidents, the li.ibiliiy to be re- viewed by tlu^ Crown under its prerogative;. In other words, their Lordships have to coiisid(;r, not whether there arc exi>ress words here, taking; away the preroj^ative, but whether then; ever was the iiu<;iition of creating this tribu- 11. il with the ordinary incident of an appeal to tin; Crown. I need hardly say that that seems to be another mode of .arriving at the same c inclusion. It it be indicated !))■ the .\ct, or by the circimistances, that the trihiuird is intended by the Legislature to be created, without the incident of an appeal to the Crown — whether that indication be effected by some other means, or by an express statement that there should be no appeal, .seems to me to be in- different. In tlie opinion of their Lordships, adverting to these con- sitlerations, the ootli s(;ctioii. which says that the jud>;nient shali not bi; susceiuibli; of appe.il, is an enactineni which indie, ites clearly the intention of the Let;islature under this Act — an Act wliicli is assented to on the part of the Crown, and to which the Crown, therefore, is ,i party— to i reate this trilnmal for the purpose of tryint; election petitions in a inaniK r which should make its decision tiii.il to .ill purposes, and should not .iiiiiex lo it the incident of its ]iidKnient being rt;viewi(i by the t'lciwii undt;r its pruroyative. Well, ih;it statement is also important as indicat- ing the viewof the judicial Committee, that the Provincial Acts were assented to on the part of the Crown, and that the Ciown was to thern a party. Of course, we know that is the form in which the Pro\ iiuial .\cts were, whether acciinilely or inaccurately, framed from the time of Confed- eration onward, in at any rate both Ontario and Ouebec, wliich followed in that respect the course pursued in the old Province of Canatla. 1 may say I regard it as utterly immaterial, with reference to any of the (piestions now in hand, whether that form be of be not the accurate form under the B. N. A. Act. It was not the form in Nova Scoti.i and New Prunswick. In neither of them as I think was the (,)iieen's name used before Confederatitui. So, in several of the old Colonies; as your Lordships will find by the pamphlet to which I have referred, the power of legislation granted was not exercised in the name of the Oiieen, But the etfect of the Acts in all their as- pects, the r.'inge of the powers of the Legisl.iture ,'iiid of the Lxec;;tive, in every respect, remained unaftected by the circumstance that the (,)ueen's name was not used. The Queen v. Amer, i Cart. The judgment of Wilson, j. at p. 7^5, dealswith the exclusive power of the Legislature of Ontario to make laws in relation to "the administration of justice" and points out that there has been no legislation by Clntario declaring that the Lieutenant-Governur may issue commissions for holding Courts of Assize ; but shows that by section 65 of the Act the power was exercisable as an (^k! power, vested in the (jld lyieiitenant-( Governor of Upjier C'anada before the legislative Union ot Upper and Lower Canada, and by the (i()Vf;rnor-Cieneral after tli.'it I'nion ; and that therecould be little doubt th;it the Lieuten- ani-(io\ ernor of ( )niario h;is the power to issue the commissions. The Qiii-iit V. Biiiiiitt, 2. Cart., p. 6jS. The judgment of Cameron, J. : — • The only rLiii.iiiiiiii; question is, tlie st.itiis of the poHce m.igisUate. This involves the iMiport^iiit Constiiiitioiial i]iieslijii, ill whioli Goveriiiiieiu aiul Le^ishiliire tests the power of appointing or inakiiit; l.uvs for tiie appoiiitinetit of police niamsti.ites and other jnstires of the jieace. The' lirst Act of tlie Le'>;ishitiH<' respertiiin the apiiointnieni of iuslires of the pciee since llie ere.itioii of the new I'onsliiinion of llie Uoininion .uid Provinces under tlie Hritisli Not th Aiiierira Act, 1S67, was passed at the tirst session of the Local Let;is- lature on the .(th March, iSfiS. I w.is then a nieinher of the K.xecntive ('onncil of this l'rovinc<\ \> hicli was responsihle for the introduction of the liill th.ii at\>rw,irds p.issed into an Act of the I.enislature. The British North .Anu'iica ,\ct made lUJ express provisioti on the sidjject of the appoiutnient ot justices of the pi'ace, or any officer connecied with the ad- ininistr.ition ot justice inferior or sidiordinate to the Judges of the Superior snil County Courts, h'rom the' incre.ise in the po]iuhitiou in the old, and tlie settlement of new iiortions of the country, it w.is necess.n y that provision should lie made for the ,ij)pointmeut of justices of t,it^ peace, as it w.ts con- ceived th, it without k'fjislation there w.is no (lower of ap- ]iointuu'nl resliut; in the Ueutenanl-Ciovernor or the (fOveruor-Geiieral. l^'iom the ahsence of express provision in the British North .America .\ci, ami the vestiiiy in the LoCiil I,,'f;isl,itiire of the I'rovince the exclusivi' power to make laws in relation to the administration ot justice in thi^ Province, including' the constitution, mainten.ince. and ors,'anizatiou of Provincial Conns, both of civil and rrimiu,il jurisdiction, it Wiis com'ei\f'd the jiower to p;iss such a law Iiiiist rest exclusively with the I.oc.il I.e^islature. The view that the I'^xiHMitive Onincil as a whoh'. or any individual liieniher of it, luitertaiued, le.idini; to the introduction of the enactment, is of no conseipieuce if the .\rt is in f,ict iiltni I'hrs, anil I merely n^fer to th.it view as indicaliiii,' the ijues- tion now raised, was present to tlie mind of the fr.iiners of the .\ct, and it is only reasonalile to assume it was present to the C.overnor-(;eiiei,il of the nomiiiioii when the .Act was cominiinicateii to him, and no' disallowed under the powir of disallowance vested in him ii.ider section <)o of tlie H. N. .\. Act. I assume there is no doubt that the .ippoiiument of Justices of till! Pe, ice w,is a pieroijalive of the Crown, lint the I.efiislatiire of I'pper Canaihi ,iiid the P,ii li.inieiit of the Province of Canada have assnined, without the power so to do h.ivitiK heretofore been questioned, to legislate in reference to tlioir jurisdiction and qii.ililication. The learned Judge proceeds to distinguish the case of Lenoir v. Ritchie, and the view of the Supreme Court, from the case in hand. " The oftice of the Police Magistrate," he then goes on to say, is the simple cre.ition of ,111 .\ct of the Legislature, and in creatiiit,' the oliice it hiid, when not in contlict with the express or iniplifd powers nf such Lenislatiire, or in excess thereof the ii'_;lil to deterniiiie how tlie appoiiitnieiil should be made. The power of .iiipoinlmi lit iiiider the .\ct in question is ;;ivi"n to the Lieuten.inl-Ciovernor in Council, as the power w.is liiven under ch.iiuer tot of tauisolidati d Statutes of Canada to the Cioveriior-Geiieral in (■oiincil, 10 appoint M,iiiistrates or Justices of the Peace under the .\ct. Then at page C\\z he proceeds: — Hut in mv oninion Justices of tlie Peace are part of the Rvsli'iii of the adiiiinistralion of Justice in the I'rovince. and tlifrefore under sub section 14 of section 1)2 of the B. N. A. Act, the ritiht to le^;isl,ile as to their ai>poiiitnient is exiiressly conferred upon the Leiiislatnre of the Province; and there- fore Mr. YoiiiiK was duly appointed Police Mai;islr,ite for tlie Cnuii'v of Haltoii. This view is supported bv the iirovision coiit.iiiied ill section i^n, L'iviniJ the ,it)pointtiient o{ |udi,'es in the Superior Distrii t and ("oiiiiiy Courts to the Ciovernor- General, and no provision Ijcini; made for the appointment of anv subordin:ite officer or authority in connection with the adininistr.uion. indicatim; that the intentiou of the Imperial Parliament, under the .issiiinment of the power Jo make laws relating 10 tlie adniiiiislralion of Justice to the Local Legis- lature w.is to yive such I.esiisl.iture full power to legislate as to the appointineiu of all oflicers connected with the adniin- isir,itioii, except the JmUis, in respect to whose appointment the .ippoiiiting power W.IS expressly indie. ited. I repeat, without enlarging upon it, the argument which I made in Oueen v. Wason before your Lordships, to this etiect, that, but for the circum- stance that it was intended t.. divorce from the general subject of administration the appointment of Surierior and ('oiinty Court Judges, )our Lord- ships would have found no reference at all to the appointment of any ludges in the B. N. A. Act. The legislative power to constitute the (Courts, to effect their organi/.ttion, would have implied the f.ower to make them comjilete by the :ippointment of the Judges. Hut it was because it was intended to assign the power of .-ippointing Judges to another politic.il entity ih.it this p.irticul.ir grant was necessaril) specilied in the Act. To the extent to which appointing powers, necessary to complete the legislatise .\cts of the Local Legisl.'iture, were left with the local authority, no express mention was necessary, because they were a part of the whole ; they tjelonged to it ; they were a portion of the executive powers, complementary and essential to the completion of the legisl.itive pow- ers expressly granted ; and according to the general schenu! of the .\ct they are therefore not specified, but implied. Thus in Wilson \ . McCmiri:, z Cart., page 671, the judgmiMit of your Lordship the Chief Justice points out that The Le>;is!altire of Oiit.iri.) lias complete power over the Division Courts .is to their existence, constitution, re- arr,iiit;i:nient. ;in(l so on. In the case of the Superior and County Courts the general Covernnient interposed in the power of appoieting the JmUes. The Couiitv Judties appointed l)v tlie Crown li.'.ve presided over these Ilivision Courts from their establishment. The I'rovincial Li^wisl.itnre, since its establishment, has iiMile many chan>;es in these Courts, cnlarfiins,' tliinr juris- diction, ,ind m.ikiiiK' provisions for enforcint; their progress over propertv and p', isoiis outside their ordinar\' boundaries, but hive never interfered with the principle of having them presided over by .i County Judge, and, as already noticed, even liefore Confederation the Judge of another County could act in the case of ilhies; or imavoidalile absence. .\s thev li.ive power to abolish such Cniiris ami to establish others for the dis]ios,il of the lik( or other classes of busi- ness. I assume their right to appoint oflicers to preside over them confirming the view I have just ventured to state that the right to appoint, the right to perform the executive act, or to vest in another the performance of the e\ecuti\e act of appointment of a Judge, is in\()lved or implied in the Irgislative power of creating a Court. Then, when this grouping .\cl was i)asscd, regarding it solelv in its bciiiiig on I)ivisii)n Courts I can see no valid objection to the Legislature directing that the Judges, senior and imiior, of the grouped Counties, should arrange among theinsi Ives that the duty of presiding should bi' taken rota- tion. Mercer V. AttoritfyGiucral fo/- Ontario. I wish to refer your Lordships, for the s;ike of brevity, to the argument which was reported in 5 S. C. Re- ports, page 577. The jiosition which, as one of the Counsel in the cause, I then took as to the condi- tion of the different Provinces, and the construc- tion of the Cfinfederation Act, is in part germane to this argument. I refer also, at page 398, to some observations ol Mr Bethume, argueudo ; and at page 603, to cer- a8 tain are[uments of M r.nranger as Counsel for yuebec. In the same case I refer to ^ni Cart\vri},'lu, paue 26: — Kitchie, t". J., after ciuii}^ tlie Acts, I'roclriin- ations, etc., points out tiiat the [provisions whicti were plainly niaile witii reference to certain proc- l.ain.itions and powers, and so on, as to Ontario and yuebec, were not necessary for the other i'rovinces. As llic Kxnniiivo Govcniinrnts of Nova Sccuia and Nmv Hniii>wic;k wcic cuiiiiiun il lliisc pnivisioiis were not iicccs- s.ii')' .IS lo tho^t' l'io\iiu'c'., 1)111 ilu'sc various t-iLiciiiicni^ .im! tile ninliiiiMiici,' of tlic cxciiitivt; ('lOViMMiiii'Iilsor Nov.i Scoli.i and N( \v Hi iiiiswick verv licaily show that tht' I'roviiii-ial exL'Cutivc power and aiuhorily was to be piccisuly the saiiiu after as before Coiifedei.iiioii ; that whatever executive powi^rs roiUd be exerciseil or .idniiMisirati ve acts done ill rehilioii to the ("lovei iinient of .in' I'i'oviiires respeclivily by ihi! Lieiiteiiaiit-tioveiMor of a I'loviiice before Confeder.ition can lie exercised or done by Lieuteii.int-Clovernors since Confederation, snliject, of course, 10 the provisions of the Act, as it is s.iid. in refeii^nce to Nova Scnii.i and New Brunswick, and is exjiressed in reference to Oiil.uio and Quebec, "as far as tlie same are cip.dile of beiiii4 exercised after the Uition." That is to say, tli.it the executive Govi'rninent of the Province as exercisi'd by the I.ieuteii.ini-Ciovernors and ex- ecutive Councils, until altered by the 1 especiive l,e|,i datiires, continues as before Coiif.'tler.iiion. exci-pi so lar as tlur executive powers of the (ioviMiior-Cieiier.d over the I)o- niinioii of Canad.i may iiiKrfere. Therefore, when it IS claiineii that a (,ieut( nant-(.;ovenior and Council are not competent tode.dwitli ,1 111. liter or do an executive ad[ninisirativ<< Act that was within their ciun- petency befori- Confeder.ition. the bmtheii is cast on those )iuttiiit; tbrw.ird such a claim to shew cle.iily from the- H. N. .\. \c,l that by express l.in^iia^ie or liy iiecess.iry iinplicatioii the local governments have been denuded of that authority, and the power has been placed in the executive authority of the Dominion. Special pains .appear to me to li.ive been taken to preserve the .lutonomy.of the l'rovinc(;s, so far as it could be consistently with the Federal Union. To say then that tlu! Lieutenant-Governors, because ap- ptiintetl l)v the Governor-General, do not in any sense repre- sent the (Jueen in the Government of their I'ltivinces, is, in my opinion, a fallacy ; they reijresent the (Jui'en as Lieuten- ant-Governors did before Confederation, in the performance of all executive or administrative Acts now left to be per- formed by Lieiitenant-Clovernors in the I'rovinces in the name of the (jueen. and this is notably maiie app.ireiit in section H:, which enacts th.it "the Lieiiten.tnt-Governor of Ontario and (Quebec shitll fnuii time to time, in tin; (,}ueen's name, by ! ,truuieiit iiiuier the Great .Seal of the Province, summon a. id c.ill tof;etli(M- the Le^iskitive Assembly of the Province," and with reference to which matter, nothing; is said with respect to Nova Scoti.i and New Hrunswick, the reason for which is obvious, the executive authority at Con- federation continuing to exist, the Lieutenant-Governors of those I'rovinces were clothed with authority lo represent the (.jueen, and in Her name called toye her the Legislatures — .ind .also in tin; section retainint; the use of the (i'lreat Seals, for the Gicat Sial is never .ittaclied to a document excejn to authentic. ite an Act done in the (Jc.een's name, such as proclamations snmmoninn the Legislatures, conimissions ap- pointing the lii^ili executivi^ otficers of the Province, grants of public lands, which >;r.uus are alw.r.v; issueii in the name of the IJ'ieen, under tin; Provinci.il Great Seals. These beinn the direct enactinents in the matter of tlie executive powers of the Ilominion and tlii' I'rovinces re- spectively, it is well to look at the distribiuion of U'Kislativr powers; and as to all matters cnniint; within the classes of siibjects enunierated over which the exclusive le>;islative authority of the Parliament of C.inada is declared to extend, then; is not to be foiinil one word expressiii),' or imiilvinj; the ri>;lit to interfere with Piovincial executive autliority, or property, or its incidents, whereas, in the eiiunieration of the matters coming within the classes of subjects in rel.ition to which the Proviiici.il Legislatures may exclusively m.ike laws, we tiiid ninnber 1 :— The amei'.dnient from time to time, notwithstanding anythiiiK in this .Vet, ol the consiiiiuion of the Province, except as ret'ards the office of LientenaiU- Governor. and from this I think a fair inference may be drawn, that as the Litnitenaiu-Govi^rnor under certain cir- ciiristances and in certain in.itieis h.ivim; refenuice to I'ro- vin ial administration represents the Crown, the Provincial I,e|i;. statures are not permitted to interfere with this office. At page 33 the same learned Judge says : — It is at the same tiint^ equally the duty of all Courts, especially this app(niate tribunal, to recoKiii/e and preserve to the executive Governments and local Leeislatures of th« Provinces their just ii>;hl-). whether pulitic.il 01 piopriet.in , anil not to |iei mil the Provinces to be deprived ol their loc.ii and territorial ritilits on the plea that Lieiiteii.int-G.ivernors in no sense represent the Crown, and therefore all seinilol ial or preroii.iti ve ii^:lits. or ri^:lits eiifoict-'able as sei^norial or |Meio>^,ilive ri^jhls. of necessity belong lo the Dominion. While I do not think it can be for a moment contended that the Lieiiteiianl-Goveniors iiiidei Confederation repre- sent the Crown as the Lieiiteiiant-t.'iovernors before Con- feder.ition did. 1 ^hink it must be conceded that Lieutenant- Governors, since C'onfedei.ition, do represent the Crown, thoiiKh doubtless in a modihed niaiiner. In my opinion it w.is not intended by the H. N. A. Act to deprive the Piovinces'of the executive and legislative con- trol over the iniblic property of the Province, or the incidents of such properly, or other m.itteis of a pu.ely local natiiic. exce|)t such ,is .ire specific. illy taken from them, and that within the scope of the executive and legislative powers confided to the Doiiiinion and Provinces respectively, they are separate .ind independent, neither haviii)^ any rijjlit to interfere with or intrude on those of the other. HAc.Airrv, C. J.- was unanimous ? CoiiNsKL— Oh, no the Supreme Court con:;titutional cases Do you say th;il the Court my Lord, i'hat happened in which is not uncommon in the Court was divided ; the Supreme Court held, by a majority, adversely to the ri).;lu of the l'ro\inct!s ; but the Judicial Com- mittee agreed in the conclu.sion of the t^hief )tistice. In jrd Cart., is the judf^tiient of the Judicial Cotnmittee. Page 77S : — It ajipe.irs. however, to their Lordships to be a fallacy to .issume ili.it bicause the word " Royalties" in this context would not be inofficious or insensible, if it were refiarded as liavinti lelennce lo mines and minerals, it ouKht. therefore. to be limiied to those subjects. They see no re.ison why it should not have its iiriniary and appropriate sense, as to lal all evenisl all ihe subjects with which it is lieri' found .associated, lands .is well as mines ,ind minerals; (!veii as to mines and minerals it here necessarily siniiities rights belong- iiiK to the Ctoviw jiiie ccroiiir. The (general subject of the whole seciicin isot .1 liinh political nature; it is the attribution of Royal territorial ri>;liis, for purposes of revenue and Government, to the I'rovinces in which they are situate, or arise. It is a sound maxim of law. that every word ought, frima facie, to be construed in its primary and natural sense, unless a secoiiilary or more limited sense is required by the subject or the context. The judgment points out the meaning of "Royalties," "regalities," "jura regalia," "jura regia," and the argutnent in a case which their Lordships consider to correctly state the law. They hold in the end that till larger interiiretation. which they regard as in itself the more proper and n.itnral. also seems to b<! that most con- sistent wiih the nature and (iemral olijects of this p.irticular enactint-ni, which certainly includes all other territorial revenues of the Crown arisiiif," within the ri^spective Pro- vinci s. Then I refer to the case of The Queen v. St. Catluiriiit-s Milliiiq; Co., in this Court, ij App. Re- ports ; and the judgment of your Lordship, Mr. Justice Burton, at page id.j, which adverts, first to the case of Lenoir v. Rilcliie. and points out that the case in hand is not on all fours with that ; and then discusses at some length the powers of the Provinces; and the method of interpretation of the 1). N. A. .\ct is thusdetined, it is " to be interpreted in a broad, liberal, and (juasi political sense." The judgmimt of Patterson, [. is also material. Then I refer to the Privy Council report of tiie same case, 14 App. Ca. 4^, page 55, which points out what was done in 1840 with reference to the produce of the territorial and other revenues at the disposal of the Crown, placed in the Consoli- dated Pund of the new Province then created ; and adds : — There was no transfer to the Province of any le(<al estate in the Ci 1 Lands, which continued to be vested in the ig Sovereign ; but all moneys realized by sales or in any other inaiiMtr btcamt' tin.' prtipi-iiy uf tli(t Fiovincc. In other wuids, all Ix-ntlirial iiiii'rcst in Mioh lands within the pro- vinci.il boMiiilarii?, lulcm^iMU lu ihr ijnci'ii, and I'itlicr pro- dnciji'4 or capable ol pin(iiii'inn levcniic, pas^,L•d to ihi' l^iovincc, thi^ title still reniainin^; in thi' I'rown. Th.it con- tinned to be the ri>;lit ol the I'rciviiicc until the p.issiiit,' of the liritibh North Anieiica Aet, i.Sd;. The Act of iSii-, which rn-.iied the Federal Goveiinnent, repealed the Act of 1S40, and restored the Uppei and Lower Canadas to the londiiion of separate I'rovinces. There is the phrase which the Privy ("otiiicil itself uses, after listening to tlie armiinent which was acklressed to them as to the meaninj^ of tlu^ Confederation Act ; " Ristored thf L'ppir diul Lott'er Canadas," under tht; title of Ontario ami (Jiiehec. In constrninti thesi- liiiactinents, it innst alw.iys be kept in view, that, wIuk ver |>nl)lic land with its incidents i> described as "the property of" or as ■■ hilontiiny to'' tin: Dominion or a Province, th 'siy expressiotis merely import that the rinlit to its beneficial use, or to its proceeds, have been .ippropriateil to tin; Dominion or the I'rovince, as the case may be, and is subject to tlie control of its l.eyislatiire, the land itself beinn vested in the Crowti. There, your Lordships see the tjround distinctly taken by the Privy Council ; that the land was originally vested in the Crown, and always con- tinued to be vested in the Crown; that the titlti was not transferred to the Province, but always remained in Her Majesty ; that the beneficial en- joyment of the land and its proceeds became the property of the Province ; that the Province became entitled to legislate in reference to the land. There then is Crown land, vested in Her Majesty ; and, because the beneficial enjoyment of it becomes the property of the l^rovince, it is en- titled to legislate ; and that in such a way as to divest the title of the Crown ; wliich the (Ontario Legislature did, as I said yesterday, by an Act passed very early after Confederation, making the Commis; iioner of Crown lands the person entitled to deal with the land. The enactments of sec. log, are, in the opinion of their Lordships, sufficient to (>ive to e.ich Province, subject to the administration an<l control of its own Lcyislatnre, the entire beneficial interest of the Crown in all lands within its bonndaries, which at the time of the Union were vesttid in the Crown, So strongly did the Court hold that the Crown subsisted in Cntario in reference to lands in the Province for Provincial purposes — that there was a Crown in righ' of Ontario, as a Crown in right of the Dominion — that they construed the instru- ment which had been prepared by the (iovernment of Canada between it and the Indians concerned, a document ceding and releasing the territory in <lispnte, in order that it might be opened np for settlement imnii>;ration. ,'ind sm h other purposes as to Her Majesty mitht seem fit, to the Ciovernineiu of the Dominion of (Canada, for the Ijueen and Her successors forever, as ceding it to the Queen in the interest and right of the Province of Ontario; not to the Queen in the interest and right of the Dominion. Hagartv, t". J. — But was not ti-at the time the territory was supposetl to belong to the Dominion ? CotJSSKi, — Which would make the argument, a fortiori, stronger for the other construction. It was disputed. At the time that document was prepared it was unknown on which side the right was; but the stronger the belief that the property was within the territorial limits of the Dominion, the clearer would be the argument in favor of the surrender being a grant to the Crown in right of the Dominion. It was ar|.;ned that a cession of these lands was in effect a conveyance to the Dominion Government of the whol*' rights of the Indians, with consent of the Crown. That is not the n.itural impoit of the lati^ju.iMe of the Treaty, which purports to be from betiiimiim to end a transaction lietween the Indians and the Crown; ,ind the surreinler is in snb- stanci' made to the Crown. Ivseii if its lan^^na^e had Inieii more lavor.ihle to th>' argument of the Donnnion upon this point, it is ihnnd.intly clear that the C'onnnls.^ioners who represented Her Majesty, whilst they haii full autlurity to accept a surreniU r to ihi: Crowi\, had neither authority or power to lake away from Ontario the interest which had Ijeeii assigned to that I'rovince by the Imperial Statute ol iSf.-. And they say that the Treaty leaves th<' Inili.tns no ri^jht whatever to the tindier KiowiiiH upon the lands which they ^ave up, which is now Inlly vested ill the Crown, all revenue^ derivable Ironi the sale of such portions of it as are situate within the bounda- ries of Dnt.u io beinn the property of that I'rovince. Thus it is made perfectly clear that the Pro- vincial Legislature Ims the right to interfere by legislation to divest the Crown of (Town property held in the name of the Crown; and this because it has full legislative powers over, and the bene- ficial interest in that property. Now, I do not intend to discuss here the passages to wliich my learned friend alluded in the reasons given by certain of the Judges in the case of Lenoir t. Ritcliic. Suffice it to say that, as my friend concedeii, there was no decision which in this case concludes the Court ; and to add to that observation, iliat these dicta, being uliitvr, are also diita which have special reference to another kind (jf prerogati\ e ; which, itself, as I have stated in the Court below, it is intended very shortly to bring directly under the tliscussion of the tribu- nals, -and were based on an argument into which I am not now going to enter, that the position of Queen's Counsel is not an office at all, but a title of dignity or honor; that the Crown is fans honoris ; and that no right or power exists, or can be by the Legislature conferred upon the Lieuten- ant-Governor to grant that dignity or honor. I may point out, in the course of my argument, positions which have been taken as to the legislative right, even in that respect; but, as I have said, I have no tlesire to ask your Lordships to indicate at this time any opinion with reference to the particular ijuestion of Queen's Clounsel, because that sub- ject is about to come expressly before the Court ; when the distinctions which are suggested, and the special grounds which are conteiuled to be applicable to the exercise of legislative or executive power as to that office can be more fully discussed and more accurately appreciated. Now, I submit that the general result is that the Provincial Legislature is, within its domain, sovereign. Strange to say, I shall shew your Lordships pr,sentlv that Mr. Dicey himself uses that very word with reference to Colonial Legislatures; though in other parts of his work strongly combating the view that even a Legis- lature such as that of France or Helgium can lie called a sovereign Legislature. 'Ihe word is susceptible, therefore, according to his view, of diverse interpretatiims ; and is capable of being both applied and rejected with reference to the same constitution. I submit that it is as my learned friend has put it ; the Provinces, within their domain, practically approach nearest of all to the position of inde- pendent States; conditioned by two elements, one as to their own law making power, which is sub- ject to the exercise of the right of disallowance, and the other as to Imperial legislation, in which respect they are technically exposed, like all other 3<5 colonies of Britain, to tlu: existing; power-- thoiif^li it 1)1' practically less anil less ilreained ot as bfinj^ an actual and practical power -the existing power of the rarliaiiient of the Ihiiteil Kingdom to [lass legislation liinding their interests, or interfi;ring with their views, or even repealing the Charters lit their liberties. Subject to these two incidents the rro\inces may be taken to apjiroach as nearly as possible, with reference to those subject m.itttMs on which they jinssess any legislatiNc powtr, the position iif independent States. Now, the le^islati\e and e.\ecuti\ e authorities are, and must be, ci)-e\tensi\(' and complementary : it is esential to eilicienm- tliat tin; Legislature sliould be ,able to make, .and it does in f.ict possess express and implied powers to make the l-lxecutixe efficient for the discharge of all administrative duties; to vest in the Executive many of those functions which the Legisl.iture might, if it pleased, itself perforin, l)ut which may i)e discharged, according to our general notions of g(j\ernment, and of the counlry'sgood, more litly by <!X(;cutive;iclion, th.in by legislative \ote ; as for example, appointments to office ; .'uul, as I contend, remissions of sentence. It is obvious that a sovereign Legislature must have sovereign power. It is cle.'ir liere that tiie Mxecuti\e is itself a part of the Legisl.iture. It is needful that the Legislature should ]i()ssess all the essential elements of such a political institution ;is a Province of Canada : that no other power should be able to disappoint its action, or in effect to nullify or impair its laws, by altering or abros^at- ing decisions and steps taken under those laws, and which are essential to give those laws their force. If you decide that there rests, outside of that body of the people wliich is permitted to make laws, enforceable by such sanctions as within very wide limitations it may chose to adopt- -if ytni decide, I say, that there rests in some other community a power to determine when, how, or by whom tho.se sanctions shall be niodifu'd or waived ; then you determine that they hav? in this p.irticular less than that condition of independence, less than that condition of eflicieiicy, less than that condition of completeness in their political organization which was intended by, and which is needed for the work- ing of the Constitution. My observation applies to all such prerogative powers as belong or are germane to anv subjects within the legislative competence of the I'rovince ; not to one more than another ; not to one less than another, 'rher<i is no doubt whatever that any prerogati\e jiowercan be moulded bv the Imperi.d Parliament ; and to the extent to which preroga- tive powers are cognate to, or .affect those elements of government and of legislation which .are vested in the sole and exclusive power of this particular portion of the Hritish people, to that extent the power of regulating, the [)ower of abolishing, the power of moidding the prerogative, also inheres in this same portion of the people. Before turning to some few further observations on the specialties with reference to the prerogative of pardon, I wish to advert very brieflv tf) one or two of the points raised yesterday upon which I have not yet touched. One of my learned friend's suggestions was that the Act gave in reference to prerogative only the statutory powers. Those it gives expressly, just because they were statutory. It was just because such powers as had been expressly vested in the Executive by statute might not be held to vest by implication in the Executive of the Province under the new organization, that express statutory pro- vision was made indicating that all, even those powers which had been gi\en to the head of the Executive by statute, should so vest. liut, instead of that beiiig an argument .against the transfer or vesting of the ordinary prerogati\e powers, im- pliedly belonging to anti customaril) exercised, in- dependent of .any statutory grant, by the iCxecu- tive, it is an argument tlu^ other way. While the gener.d gr.int of legislative jiower invohed the right to create and vest in appropriate otiicers all proper executive power, the general grant of executive power iiuolved the gr.ant ol .ill pt)wers which had customarily ,ind impliedly p.i.ised as part of the executive power. Thesi; then it was not necessary to grant expressly. They were implied. Those therefore that were gr.anted ex- pressly were not all. They were aiidition.il. And so, at another part of my learned friend's argu- ment he almost seemeil to agree; because he said that the Lieutenant-(iovernors had, under the H. N. .\. .\ct, all such powers as were necessary to carry out the ;uithori/e(l legislati(.)n of the Province. I largely agree with him. Tiiey have, either under the actual opiT.iiion of, or through legisla- tion .authorized by the .\ct, all such powers. But then if the Legisl.iture of the Province thinks that any law alrt:,i(ly passed, the execution of which would invoke action b)' the I'"xeciltive, is a bad law, they have the right to re[)eal that law ; and on the re])eal of that law, the Executive power of the Lieutenant-Governor will be /yro tanto dimin- ished ; he can no longer operate upon that subject matter, because the Legislature has abolished it ; therefore it can be administered no longer; and thus the powers of the Executive are lessened. So also they m.'iy be increased. There is no con- sistent, there is no fe.isible iiUerpri;tation of the .\ct, which shall refuse to the Legislature the same power of moulding the prerogative, of gi\'ing ad- dition.al st.itiitory prerogatives, and of diminishing existing i xpress or implied prerogatives, as the Imperial P.arliament has with reference to the pre- rogativeof the Sf)vereign to-day ; alw.ays oliserving th(^ limitations that it is of conrse such portion only of the prerogative power as is germane to, as belongs to, as is convenient in order to form and complete the total mass of power, executive and legislative, administrative and parliamentary, that is placed under legislative control in the Province; and that the power of .amending the Constitution as to theofficeof Lieut(Miant-Cio\'ernor is withheld. Then, mv learned friend said that this which has been done here mav be done, not this wav, but in some other an.l round.-ibout way. Me did not de- fine exactly wh.it th(! circuit was, b\- what process the Legislature might do the thing which he savs they can do in sonn; other way, but cannot Ao in this way ; but I take note of that acknowleMlgement. I understand that the view of my learned friend is that it can be done by creating in the same Act which gives power to impose the sentence, some power to remit or modifv it. The argument is that the power to remit maj' be set up as part of the provisions for punishment, but that it cannot be done by a distinct .\ct. That is to say, that the Legislature, if it passes an .Act creating a proper prohibition, providing for the imposition, bv a proper authority, of a particular maximum sen- tence, and at the same time providing that all should he subject to some modification of the sentence imposed, to be made under certain circumstances, after certain investigations, or at V tluMliscri'lijii ul sonii; doliind autliorily -will !"• acting wiihiii its rif,'ht : l)iit tint the Lcjjishituic, alter liaviiiR ])assi:a its pi-oliinitory law, aiul pics- cribuil iisseiuuncc, caniiDtby a st:p,ir,iie subsL-cpieiil Act pro\ ide for lliai reinishioii, or coiiimiiiatiuii, wliicli it could have arraiigv^d as part ot the Act creating; liic prohihiiioii and prcscrihing the seiitiinjc. 1 must say I cannot runiersiatul the iorce ot tl)at view. It si;enis to niiuiniize the power of the Lef^islature in an extraordinary way, to suggest that, while they may, if they clioose, repeal all their la^.s, re'-enac tlieni wiUi certain conditions, or suljject to certain nunlitications, and so produce this result, they cannot do it in the plain, simple, and direct way. I sulmiit that is by no means the spirit in which the legislati\c powers of the Province are to be construetl. On the contr.iry, the recognized spirit of intcrpret.i- tion is just the opposite. My learned friend acknowledged lairly that, in the correspondence; and discuss.'oiis which have from time to linn: taken place, in the first place, n(jthing occurred which shoidd bind the C"ourt, and, in the second place, no distinction w.is at- tempted lo be drawn, such as is now brought for- ward, between the two subjects of I'rovinci.il offences, and ("anadian Criminal Law. On the other hand, 1 think the fair inference to be drawn from all this correspondence, as 1 shall shew your Lordships very plainly in respect to some of the later passages, is that what wasexclusi\ely present to the minds of those engagi-d in the discussions was Canadian Criminal Law. Although the lan- guage used may be large, yet it was ("anadi.in Criminal Law, and I'.irdons for crimes under Canadian ('rimiu.il Law, w Inch alone were really in debate. Then my h^arned friend acknowledged that by a report of the L,iw Magazine of Out^ljec it appeart;d that the Local (ioverment there had been, from time to time or hrd)itually, exercising some power of commutation or remission ; but he said that he thought it had been generally acquiesced in here that there was no such power. I am not instructed to make any such admission ; on the contrary I believe that instances can be produced, perhaps rare, but instances can be produced in Ontario in which similar action has been taken, as was taken in (.hiebec. But, as my learned friend frankly agreed, neither action nor inaction can affect the decision of this ipiestion, which comes free from anything that could hamper the judgment of the Court in a judicial derision now for the lirst time invoked. My learned friend then s;nd that in Lngland the notion that pardon is a higli [irerogative is shown to be still preserved, because its exercise is still kept vested in one person, the Home Secretary. I do not think that ob.servation is of force. The Home Secretary is the appropriate responsible ofiicer. It is clear that, in a country of moderate; territorial dimensions, of very easy and rapid communication by mail and telegraph between iis different parts, ruled by one set of laws, where neither distance nor circumstances create diHicidiy in disposing, .almost at a moment's notice, of such questions, it is clcnr that there is no ground of convenience for a distribution of this prerogative, for the creation of divers officers to be entrusted with this power, to be exercised in diflerent parts of P2ngland. It is clear on the contrary that, for laws which are passed by and which allect the \\hole boily of the Ijigli.sli people, lor the administration of whiidi laws responsible ollicirs are to be appointed, there ate coiueni- eiices in tinity of .iduiinistration It would be incoiivenieiit that 'here; should be one per- son with (jue tu)tion as to remissions for Wales, ■inoiher pers(jn with perh.ips anotlier notion :is to remissions lor the south, and yet another for the north ol Lngland ; and th.ii the executive action of each, in a m.itter in which discietion cert.ainly pl.iys a great part, should be criticized not merely as the exercise of this prerogative is now criticized, but criticizeil with the adilitional embarrassment produced by contra;. ts between the action of the different ollictns. Unity in that respect is also important, because )ou have unity in all other reipufcts ; you have one jiolitical entity, one set of laws .itlecling .ill, and } ^u have, ;ind ought to have the rcsponsibibiy of one man tor the exercise of ot.e preiog.itixe to tht: people who make .iiul who live under the laws in respect of which th.it prero- gative is to be exercised. As for Irel.ind, tluiugh the laws ;iie said to be the same, )-et their admin- istr.ition, including that of the prerogative of Ii.udou, is vested not in the Home but in the Irish (illice. With us all these .irguments work just the other way. Then my learned friend, Mr. Lefroy, referred to Mr. Dicey as to the nature of the prerogative ; and while I acknowledge that he has made the obser- vations (pioted by my learned frieiul, yet I do not need to go beyond Mr. Hicey's own wurk for the est;iblishment of the fund;imeiit;il principle which I in\ ite your Lordships to lay down, and by which the decision of this case is, as I submit, governed. .And perh;i]is, as ni)' learned friends lay so great stress on Mr. Oicey, it may be well to quote him more lully ai'd exclusively th.'in else I might be disjiosed to do. Without touching .it this moment upon his comments upon Blackstone's view, I wish to refer to a few pages in which material observations are m;ide I refer to pages 59 and 60 ; — DoniiiiL's have at times been inaiiitaiiicd wliirh wciit very lU'ai" to (It'iiyinn the liglil of I'arli.uia'iit kj toucli tlio pre- lotj.ilivr' ; and he points out that at this day (no niafter how- great the powers, as for example those connected with the right of making treaties, and the right of making war .and declaring peace, which he specifies as being left, by the law, in the hands of the Crown, and as being exercised, in fact, by the executive Cxovernment) No luodcrii lauycr would maintain ill. U tlusc powers. or any oiliir liiaiirh of Royal aiuhoriiy, cannot bu regulated or abnlislii'<l by .\ct of I'arlianicnl. That is the present constitutional and legal doctrine upon even the most precious and the highest prerogatives. Then, with reference to his distinction between the constitution of a country like that of Canada, and the British constitution, we have to deal, not with the legal view which at one stage and mainly he expounds, but with the political view which the Court here, as the interpreter of a ])olitical constitution, has necessarily to adopt. I refer to page 66, in which he points out th;it the word "Sovereignty " is sometimes employed in a politi- cal, rather than in a strictly legal sense. Tbat body is " politirally " sovereign or supreme in a State the will of which is ultimately obeyed by the citizens of the 32 Slilliv 111 lliis siMisr iif the wmd tlic ilcilnrs (if I'.iimi Hiii;iiii ni:iy l)c s.iiil 1(1 lie, iii>;cili( I wall ilu- iKuvii .lud I.dKK, (H pcrhaiis in slri<'t iicnii.icy imlipi ndcnlly nf the Kini; arid ilii! I't'i rs, tlio liody in wlii( h sdvciiiwn powi'T is vistt-d. I'di . as tilings now Mand, llic will dl tlic i IccKiraK; and cirtainly iil the clorlDr.Uf in r.ondiinalinn willi llic I.nrds and tlic Ckiwii is snic nllini.itcly In picvail (in dl snli|(i'ls to be dctcrnipi'd by till- IJiitisii (lovcrnincnl. 'llic niallir indiiii in.iy lie lanicd a little fill tlicr, and we may assert that the ai iaii^;e- iiii^iits of llie ((institiilion .ire now sncli as to ensure tliai the will of tlie electors shall, liy regular .ind coiistitiilion.il means, alw.ivs in the end assert itself as the predominant iiillmiice ill the country. Then, at pa^e 77 lie indicates liis vinw of the system of representative (Jovernnu'iit, and ils effect. All that it is here noctissary to insist on is that the essential property of representative tlovi riMnent is to prodiuc co- incidence between the wishes of tlu; Sovereign and the wishes of the subjects ; to lllak(^ in short, the two liiiiit.ilions on the exi^rcise of Sovereimiiy absolutely co-iiicideiit. I'his, which is true in its iiie.isiire of all re,il repi i-,ent,itive dov- er.iineiit, applies with special truth to the ICnulish House of Comiiions, At pages S3 and S.j he refers to the possibility of framing tiie law of the I'liiKlish ccmstitiition in writing, enacted in the form of a constitutional code, and speaks of the Helgian constitution in the terms to which 1 referred yesterday. I'age 103 ; — The Colonial I.e>;islatures. in short, are within their own spheres copies of the Imperial I'.irli.inunt. I'hey are within thtdr own spheres S(ivereit;n Imdies; liut their fri < liom of action is controlled by their snliordiiialion to the Parliament of Great Britain. At page 108 he discusses The nature and extent of the control exerted by tireat Hi itain over Colonial legislation, and indicates that the tendency, in the tirsl place, of the Imperial Ciovt^rnment is. as a matter of policy, to interfere less and less with the action of the Colonies, whether in the w.iy of law-m.ikinn or otherwise. Then at page 131, he gives Ids dt;finition of a Federal State ; — .■\ I-'ederal State is a polilic.il contrivance intended to reconcile national unity .iiid powci with the maiiiienanci^ of "State rights," The end .liiiied at fix<■^^ the essenli.d character of I''eder<ilisiii, bcir llie method by which I-'edei alisin attempts to reccncile the .ipp.irenily incoiisistenlclaimr of national sovereinnty and of State sovereignty consists of the forniation of a ( onslitntion under which the ordinary powers of Sovereignty are el.diorately divided betweiMi the common or national (Government and the sep.ii.ite Slates, The details of this division v.iiv iiii(kr every difterent Federal constitution, but the general principle on which it should rest is obvious, Wliatever concerns ihe nation as a whole should be placed under the control of the nation.il Government. .Ml matteis which are not primarily of coiii- iiion interest should remain in the hands of the several States. At page 160 he refers to a most important element of Federalism : — Kederalism, lastly, means legalism— the iiredoininance of the judiciary in the consiitiition -the prevalence of a spirit of legality among the peolli(^ That in a confc'deration like thi^ I'nited S'.'Ues the Conns become the pivot on which the coiistitu' angements of the country turn is obvious, Soverei,. , lodged in a body which rarely exerts its authority, and has iso to speak 1 only a potential existenci' ; no Legislature througbout the land is more than a subordinate law making body capable in strictness of enacting nothing but by-laws; tbopoweis of the executive are again limited by the consli'Ution ; the inter- preters of the constitution are the Judges. The bench, there- fore, can and ninst determine the limits to the autheritv both of the Government and of the Legislature ; their decision is without appeal ; the coiise(pience follows that the Bench of Judges is not only the guardian but also the master of the constitution. Nothing imts in a stronger light the inevitable connection between Lederalism and the prominent position of the judicial body than the history of modern Switzerland, wliich history he sketches. Then he comments upon its records. I have re.id the last pass.ige, ln^caiise il sPiMlls to nie th.it we must rc.ili/i!, tii.tt tlie discussion of this case forces us to re,iii/e, the peculiar character o| that juristliction, which tiie Court is now called upon to e,\ert. We musL rcili/e the view tli.'it it is not by an ,-ippeal to l.iws only, it is not by an ap- peal to wii.it is set down in codes, it is not by an appeal to judicial decisions, it is not by ;in appeal to that portion of our constitution which is em- Ijoilied in formal and statute l.f ■, but it is by a reference to the whole consiitution, to the conven- tions of the constitution, to the principles of the constitution, to those jiolitical elements which 1 am endeavoring to m.ike clear, it is thus oidy that we can place ourselves in a position to dt-termine the true meaning of the consiitution, and the range of powers of the one, and of the other, of the several law-making bodii's, or political organizations which exist under that ccinsiitution. This is the reason why this argument jiroceeds in ways unaccustomed to the ("ouris : it is on this account th.at I am obliged to ask \oiir Lordships to look into the principle of the British Constitution, and to settle the interpretation of that phrase as applied \o Canada and the Provinces in the .Vet, and therefore to enter into a dom.iin which is more (jrdinarily that of the statesman and the politician th.ui of the law\er, the jurist, or the judge. J5iit still so must it be. Our constitution is not wholly writ- ten ; it is one which incorpor.'ites, by a phrase or two, that vast aggregate of unwritten conventiins, codes, ethics, views, understandings, customs which are embodied in tlu; phrase, "The Hritish Cfjnstitiition " ; and these we must consider; the essential principle we must ascertain ; by that essemi.d principle we must be gtnerned, when we come to settle this question of the extent ot the executive and of the legislative powers which are vested in any one of the political bodies existent under the Act. Then at page 329 Dicey speaks of "The respon- sibility of .Ministers," and points out how much it means, and the extent to which it affects the prerogative of the Crown .\t page 347 he speaks of " The di.scretionary powers of the Ctovernment," and shows that the doing of numerous most important acts, as for instance, the dissolution and con\'ocation of Tar- liament, the making of peace or war, tfie creating of Peers, th<' dismissal of a Minister from office, or the nppointmtMit of his successor, lies, leg;illy, at any rate, within the discretion of the Crown. They belong, therefore, to the discrelienary anthoriiy of the Government. This authoritv may no doubt origiiiaie in I'arliamentary enactments, and in .1 limited nnmb'jr of cases actually does so originate. And he gives the case of the Naturalization Act. With the exiTcise, however, of such discretion as is con- ferred on the Crown or its scrv.ints by Parli,inieiitarv eii.ici- ments we need hardiv conctM'ii onrsidves. The nuxie in which such discrmion is 10 be exercised is (or may be) more or less clearly definrd by the .Act itself, and is often so closeK limited as in reality to become the subject 'if legal decision, and thus pass from the domain of consiitutioiial moralitv into th.it of law properly so calle<i. The discietionarv authority of the Crown originates generallv. not in .Act of Parliament, but in ihe " prerogative," a term which b.as caused more per- plexity to students than any other expression referring to the constitution. The " prerogative " appears to be both historically, and as a matter of actii.d fact, nothing else than the residue of discretionarv or arbitrarv authority, which at any given time is legally left in the hands of the Crown. The King was originally in truth what he still is in name, " the ^^ Sdvciiinii." or ifiiiK sliirily (In " mivitimkii, ' ill tlif snisc in which luiists iisr ihai Wdid, at any i.ili' by tar ilic most powci fill part of till' soviMi'iKii power. ile refers to the trial, in ly^ji, nt Mr. l<c■(;v^^-i, under the order ol tlic House of Commons and states ; — The pcuvci of llir I'lovn w.i-. aiilri ior to th.it of ilic lloiisf of Coiiiinnii^. I'liiMi ilic liiiir of the Not man C'oiii|iic>t ilowii to tlic Kcvojiiiion of iiiNS. tlic down po^scs-aMl In rr.iliiy III. my of the .iltiiluiti'S of Soviiiinnty. I'lie jMiioij.iiivi' i-i the II. mil' for the rrin.iinin>; poitioii of ihr Crown's ori);in,il authority, .mil is tlii-icforc, .is .ilrr.idy pointed out. tlii' n.iiiie for the lesidiie of ili ,ireiion.irv power left at .my nioiniiit in the li. mils of tile Crown, wlieihei such power hi' ill f.iil ex- ercised liy the niieeii herself or liv llc'r Ministers. lAcry .\et which the exei'iiiivc ("lovei niiu nt c.iii l.iwfillly do with- out the authority of .ui .\ci of I'.irli.mient is done in virtue ol this preioi.;,iiivi'. If, therefore, we omit frmii view las we I'onveiiieiitlv in.iy ilo) powers confiMred on tile Crown or its serv.mts liy I'.iili.iment.ii v en.ictnients, .is for e\.iinpli- under an alien Aei, we iii.iy use the term. " pri'roi;.ilive " .is e.piiv.e lent to the <lisrretion.iry antliority of the ICxi'Ciitive, .md then lay down tliit the convetitidiis of the <-oiistitiition are in the main preri'|)is for deterininini; the mode and spirit in which the preroij.itive is lo he e-ii'irised. or wli.u is re. illy the saim; thmi;. for lixiiis; the ni.inni r in which ,iiiy ir.iii^aciioii which can le^;.lllv be ilono in virtue of tlie Koy.il pr<'rot;.iiive isiich as the ni.ikiii)' of war or the declar.itioii of pe.icei onuht to be carried on!. This statement holds >;ood. it shnnld he noted, of all the discieiion.il y powers exercised hv the I'^xeciitive, otherwisi! ill. in iiiidii sl.itiitoiy .inthoril v ; it applies to .\cts really doi.e by tli>' niieeii herself in accordance with Her personal wishes, to trans.ictions (which ,iri' of more freipieiit ornirrcnce than model n constitntioiialists are disposed to adinill in wliii'h both the (.Jiieen and Her MinistL'rs take a H'al part, and also to that larije ,ind const, mily increasinn nnniher of proceediinjs which, tlioii;;h c.uried out in the yneen's name, :ire in triitli wholly arts of the Ministry. The ronveiilions of the constitution are in short, rules inlimded to rennlale tlii^ exercise of the whole of the rem. lining <liscre- tionary jioweis of the Crown, whether these powers are exercised by the Queen h'Tself or by the Ministry. Then he f,'ives a number of instances, and pro- ceeds : — The result follows, that the conventions of the ronslittilion looked at as a whole are ciistoms. or iiiidi rstaiidiiiKs as to the mode in which the sever, il members of the sov(Meinii lesjislalive boiiy, which, as yon will reinemher. is the '• KiiiK in I'arliaiiKMit." should eacli exercise their discri'tionary authority, whether it he termed the preroy.itive of the Crown or the privileges of I'.irli.imcnt. Since, however, by far the most nnmeroiis and important of oiir constitutional imder- sUndiii^js refer at bottom to the exercise of the prero^jativiN it will conduce to brevitv and clearness if vmi treat the con- ventions of the constitution, as I shall do for the rest of this lecture, as rules or customs deteriniiiiiiB; the mode in which the discretionary power of the ICxe' ntive. or in teclmic.il lant'naKe the prerogative, oiii;ht (/.<•., is t'spected by the nation) lo be employed. Haviiit; ascertained that the conventions of the constitu- tion are (in the main), rules for deterinir.inj; the exercise of the prerogative, we iii.iv carry onr .malysis of their ch.iracter a stop further. Tliev have all one nllimale objiM't. Their end is to secure that P.irliament or the Cahiiu". which is indirectly appointed by I'.irlianient, shall in the Iom; rim jjive effect to t'.ui will of that power which in modern Knuland is tlie true political sovereiuii of the Staie — the ina|ority of the electors, or (to use popular tlnnmli not quite accurate laii- BiiaKei the nation. .\t this point comes into view the full importance of tlu^ distinction insisteil upon in a former lec- ture between ' le^al " soveieignty and "political" sove- reignty. He points out the le^al sovereignty of Parlia- ment and goes on : — But, if I'.iiliament be in the eye of tlii! law a supreme LeKislatiire. the essence of representative Ciovernnient is, that the I-cKislature should represent or t;ive effect to the will ot the political sovereign, I mean of the electoral body, or of the n.ition. At page 355 :— The conventions of the constitution now consist of customs which (whatever their historical origin) are at the present day maintained for the sake of tnsnrim; the supremacy of the House of Commons, and ultimately, thrnngh the elective House of Commons, of the nation. CHw modern code of con- stitutional morality secures, though in a louiul-about way. what is c.illcd .ibio.iil the " soveiei^jiity of the people " Th.it this is so becomes .ipp.innt if we ex.imine into the i-llect of one or two anions the le.iijint; .irticles of this code. Thi' rule tli.it the powers of the Crown must be exercised throiiuh Ministers who ,iic meinheis of oni' or other Mouse of I'arli.i- liieiit .mil who I onim.ind ll;e conli.leiice ol the House of (lommons re, illy me. ins ih.ii the eleciive poi lion of the I.e^is- l.iliire ill etfecl, thoiinh by an indirect process, appoints thi^ exeeniive Ciovernment ; ,ind. fmtlier. lli.it the Crown, or the Ministry, imisl iiltiin.uely c.irry out, or at anv r. He not con- tr.iveiie. the wishes of the Hoiis" of Commons, lint as the process of representation is noiliin>; else di.in a mode liy which the will of tlw represent. itive body or House of Com- mons is made to coincide with the will of the n.ition, it follows that a rule which ^;ives the uppoinimeiii .mil control of the ( >o\'rrninent m.iinlv lo (he Honsi- of Commons is ,it bottom .1 rule which ^ives the clecijon .md iiltim.ite control of the executive lo the n.ition. .\t page yi() :- Neither the Crown nor any serv.mt of the Caowii ever refuses obedience to ihr i;r.ind piincipli l)o you want tlio principle of ihc Hrilish con- stiution ? Here is where 1 think Mr. Dicey states it :- the i^raud ininciple which, as we liavi' seen, underlies all the conveniioiMl precepts of the constitution, namely, that government innst be cirried on in accord.ince with the will of the House of Coininons and nltini.ilely with I he will of the n.ition .is expressed throiii^h that House. This principle is not a l.iw ; it is not to be found in the st.itute book ; nor is it a maxim of common law; it will not be enforced by any ordinarv jiulici.il body. Why then has the jirinciple itself, as ,ilso have ei rtain eonventicns or iinderstandinns which are closely connected with it, the force of law' .Vnd he proceeds to state wiiy it has the force of law : but there is the principle. .\t page j8i he discusses a very interesting (piestion, of which marked examples are to be found in late davs, some in ]"".ngland, and some in Canada, both in Provincial and in IV)minion affairs : — What is the reason why no one can describe with pre- cision the limits to the influence on the conduct of public attairs which may riyhtlv be exercised bv the reikjiiint; monarch, and how does it happen th.it ('ieori;e the Third and even Cieorf,'e the l''oiirth each made his personal will or caprice tell on the policy of the nation in a very difloreiU way and det;riM; from that in which Uiieen \'ictoria has ever attempted to exercise personal influence over matters of static ? The answer in ^.'oneral terms to these anil the like enquiries is, that the one es.^enii.il principle of the constitnlion is obedience by all persons lo the deliberately expressed will of the I louse of Commons in the lirst instance. ,ind ultimately to the will of the nation as expressed throntih Parliament. The conventional coile of political morality is, as already poiiueii out, merely a l)ody of maxims meaiU to secure respect for this principle. Then he goes on to discuss it. \l page ^(Sj he gi\es a very interesting di.scussion of what the revelations of political memoirs and the obser\ation of modern public life make clear as to our constitution : — The first is, that while every Act of State is done in the name of the Crown, the real executive noyernment of Eng- land is the Cabinet. The second is, that though the Crown has no real concern in a vast number of the transactions which take place under the Koyal name, no one of yueen Victoria's predecessors, nor it may be presumed yiiemi Vic- toria herself, has ever acted upon or allected to act upon the maxim originated by Thiers, that "the King reigns but does not govern." And he proceeds to discuss ail that : and he points out that the degree of influence which, suh rosa, 30 to speak, without publicity at any rate, the reigning monarch, under our constitution, may e.xercise, is a vague, fluctuating, and unknown quantity ; partly, 1 sujipose, because it is exer- cised " under the rose," partly because no man can tell the actual extent to which in any case the .14 nation wisli(!s ili.'ii liu! personal inflntMU'- of \\u' Sovereign slionid wcIkIi lint, he jioinis out tli.it in old timen personal views much niort^ prevailed ; and he cites, as showing the rharacters and cus- toms of thf! country, a lu-,iilions incident which pertains to this very prerojjative of I'ardon: In small things as much as In great oik- cm discern a tendency to transfer t(i the Cahniet prnvers onee aetiiallv exercised hv llie Kiiii;. Tlii! -ciMu- lielweeii Ji.Uiir Deans and (JuecMi ( .iliiline is a true picture nl a srene wliieli nii(jlit liave taken pl.iee niidcr ' li'iirtfetlie Second, 'ionrue tlie Thnd's tirniiiess secured !lie exeeiitimi of Dr. Dodd. At tlu- pri'sei't day llie riniit u' pardon lpe|oM^;s in l.ict to the Home Seiretarv. Ainoilein je.iiiie Deans would lie rclerred to the Home ' mice ; the ipie>lion whether a popular preaeher shonld pay the penalty ot hi?, crune w(ndd now, with no ureal .idvantaKc to tiic country, lie answereil liy the fabinel. Then nt page .^oo he asks: — What, again, is the real eltect produced by I he >urvival of prerogative powers .' And .ifter i^ointinf,' nut that a very considerable amount of intlnence is f^iven to, or rein,-iins with the monarch, in ccnisequenco of acts being done in the name oi ilu^ monarch, he yet shows th.it it is far more important to notice the way in which the survival of the prerogative affects the position of the Cabinat. It leaves in the hands ot the I'renner amt his colleaKUCs. large powers which can lie exercised and eonstantly are exercised tree from parliamentary control. This is specially the '"ase in all toreiuii affairs. r.irliament may censuiea Minister for nnsconduct in regard to the foreign policy of the country. lUU a treaty made bv the Crown, or in fact by the Cabinet, is valid without the authority or sanction of Parliament : and it is even open to ([uestion whether the treaty making power of the Executive might not in <ome cases over-ride th.e law of the lami. It is not Parliament, hut the Ministry, who direct the diplomacy ut the n.itiun. He refers to the restrictions placed, in the United States, upon the power, and adds: — The survival of the prerogative, conferring, as it does, wide di-icretionary authority upon the Cabinet, involves a couscouence which constantly escapes attention. It im- mensely iucre.ises the .luthoritv ot the House of Com- mons, and ultimately ot the constituencies by which that House is returned. At page 30,^ he cites the well-known instai ce in which Mr. Gladstone, after the House of Lords had declined to agree to the legislation which had been carrietl through the House of Commons with reference to the reorganization of the Hritish army, accomplished his measure, f)r enforced their assent, through the Royal Warrant al)olishing purchase. But, that, of course, was done in the name of the Crown, by the Cabinet. If government by Parliament is over transformed into government by the House of Connnons. the transtorma- tion will, it may bo conjectured, be effected by use of the prerogatives ot the Crown. At page 3oC>, again, he speaks of the two guiding principles of the law of the constitution, which he distinguishes from the conventions of the consti- tution. The first is the sovereignty of T'nrliament, which means in effect the gradual transfer of power from the Crown to a body which has come more and more to represent the nation. This curious process, by which the personal authority of the King lias been turned into the the Sovereignty of the King in Parliament, has had two effects ; it has put an end to the arbitrary powers of the monarch ; it has preserved intact and undiminished the supreme authority of the State. And the second principle is the authority of law. I have read your Lordships these extracts in order to remove, even by the use of my learned fi lead's own weapon, the mystery and the magic in which, when one deals with this iinestion of pre- rcgativf, it is attempted to enshroud it. I f we are to he go\-erned in this I'rovini-e, acconiing to the principle of the iiritisli ('onslitutioii, if we are hero to exercise those powers of representativt! govern- uuMit, which, 1 thiid^ 1 li.ive shown from ni) le.irncd fri(;n(rs,iuthorily,end)ody lhetundaulenl;llplincil)l(• of the Hritish Constitution, as interpreted in our d,i\ , tluni the application of th.it rule necessarily, I suiimit, destroys the argument of my learned friend upon prerog.itive in the general, as well as in the particnl.ir point on which the mr'" part of this discussion turns, that of pardon. .\s 1 ol).ser\f(l yesterd.iy, had this statute been differently framed, a very grave ([in-stion might h,i\e arisen as to the powt^r of pardon for crimes .igiinst C,,inadi.iu law; because tln^'e is, with rctference to those departim^nts of legislati\'e power which include this subject, a p.irtilion of powers ; and it woidd b(^ necessary to determine on which side of the line the subject lidl, in view of that par- tition. Vini find the legislative power as to laws .illecting property and civil rights, and the enlorcemeut thereof by penal sanctions, given to the local Legislatures; and that as to criminal law- given to the central Legislature ; you find also that curious and illogicd division of "the adminis- tr.ition of justii (■ " which was fully discussed in the Oiieen w W'.ison. If the administration of justice in its entirety, in its largest sense, including the m.iking of tlu^ laws which indicate what the justice of the country shall be, as w(dl as the carrying out of those laws, if the whole subject in that largest sense, had been in tl)e h.inds of one or other of the Legisl.a- tiirt!s, this pow<'r, lieing a part of it, woidd have bcdonged in its entirety to that Legislature There being a partition, and a partition not logi- cally defensible, a question e.xists, and may, some day perhaps, arise, as to the side on which the power falls with reference to the Canadian ("rimi- nal Law. Much is to be said in favor of the Dominion, as the maker of Criininal laws ; mort;, I dare say, in favor of the l)omini:)n, than in favor of the Province ; but something also might be said in favor of the Province. We have no concern with that here and now. This .\ct, as I h;i\e shown, has nothing to do with pardon for a Canadian sentence, l(n' a sentence imposed under any Act which might be validly passed by the Canadian Parliament. This Act has to do only with sentences which are passed under the authority, either of a Provincial law, or of legis- lation which the Provincial Legislature can repeal or amend, and which is, therefore, practically Provincial legislation ; in respect of which it may be said that the Province has created, or per- mitted the continuance of the law creating the offence; in which the Province has created or permitted the continuance of the law creating the penalty: in which the Province can abolish or alter tlie law creating the offence or the penalty ; in which the Province can pass an Act of Cirace, or an Act making the law inapplicable to any particidar offender, either before or after convic- tion ; in which therefore, as I contend, the Pro- vince can legislatively either remit or commute, or authorize the executive remission or commuta- tion of what I may call its own sentence. This is a local and private matter ; it is a mat- ter, c,v coiicr.sis, affecting I^rovincial, as distin- 35 guisheil fniin ('aiuulian or Iiniierial iritf rests: it cuiict'rns only the Kimctioii, file iiuicluiicry crfiitcu by th(! I'rovincf, tor stfcuriiin the ellicitMit oliserv- ance ut laws rroviiicial Id their nature, extending only to the hounds of the I'rosince, aftei-.tinK oidy the intt^rests ol the I 'ro\ iiu e, made lor the jieoplc uithin the Province, made to lurtherihe views ol the I'ruvinee, and mixlilii'd, ri'jiealed, changed, en- forted, or on occasion remitted, in the interests (jl tlie people- of the l'ro\inte It is that body of Her Majest\s subjects utinposing the peoph; ot Ontario which c.i caiues.'tls, is alone iiitircsted in these laws ; in their enforcement ; and in their remission. That beinj^ so, 1 say, tirst of all, that it is natural and reasonable that the administration and execution of these laws, in all their respects (including the very important (piestion, whether in any particular case subsi.intial justice demaiuls that a sentence should be enforced to the end, or will be best served by its being remitted or commuted), being exclusively I'rovincial, slioidd be dealt with exclusively by I'rovincial authorit\ . Not merely is that reasonable, but it is essential , it is vital ; because, if we admit, as we must admit, that laws require sanctions in ortler that they may beconu! more than forms ;ind shams , if we admit, as we must ailmit, that that view is noi merely well foundetl, but is exjiressly recognized by the Constitutional .\ct ; if we adtuit, as we must .admit, that the power of absolving from the sentence of the law may, if improperly or too freely exercised, and will, in proportion to the extent to which it is so exercised, destroy or mmish the eliicacy of the law, then we must agree that it is not merely con- venient, not merely appr(jpriate, not merely natnrrd and reasonable that the power should belong to that political entity w hich has exclusive control over all other aspects of the l.iw, but th.at it is vital and essential that it should so belong. Suppose a state of things in which the opiuion of the larger community, reiiresented in the I'arlia- ment of Canada, differs from the opinion of that smaller community which is represented in a Provincial Legislature. Take a small Province, take Prince P'dward Island ; take e\eii a large one, this Province of Ontario; suppose that different ■otions, rightly or wrongly, prevail at Ottawa, from tiiose prevailing at Charlottetown orToronto.as to making a particular ac;t an offence at all, or as to punishing that offence to a particular degree. Suppose thai the Canadian P.irliament. contrrilling the Canadian Ministr\' and directing the Govern- ment of Canada, is of the opinion that a loc.d law- is a bad law, or that a local sentence prescribed under that law is a barbarous sentence ; that there should be no such prohibition as the local law makes, nor any such sentenci' as the local law allows ; or that in any particular case the sentence awarded is too severe. Under these conceivable conditions you are asked toalistract from the local authorities the power of practically deciding whet her their law shall remain in force, and to give that power to that other and different government of that other and different entity, the Dominion of Canada, whose public opinion differs from the public opinion of the I'rovince concerned. You are therefore asked to interfere in a most serious degree with the principle of local r.elf-government in those subjecis which have been assigned as solely and exclusively within the competence of the Provincial Legislature. Now what is pardon ? I think it may be properly stated that pardon is a part of that whole ct)mprised in "the uriininistration of justice " 1 have sai J that, in the large sense in which I here use that term, 1 include legislation with reference to the criminal law , and 1 therelore include a divided subject I'ardon is an .\ct which is de- signeti to " make the piini-.hment (it the crime"; that is the subsianti.'d ground for tlit! commutation, or remission of a sentence It is not in the slight- est lU'gree the exerci.ie of caprice. It is not to be Used according to the ipiatitity or quality of the milk of human kindness, to which one of my learned (rieiuls reierrecl, which may be existing in the wielder for the moment ol the power, lie is bound to consider, and he ceriainK has oftentimes, as some of us know, a most p.iinlul t.isk in weighing the general effect of his decision. What is mis- called mercy to the individual may be gross injustice to the State lie must consider the eflect of interfert:nc(! with the sentencit of the C?ourt ; he must ascertain the general principles upon which he should act ; and apply them to each jiarticular case. He must, as far as possible, do those things with reference to the (piestion which comes before him, which tin; ollicers of the law would have done, had they, when they acted, been possessed of all th(! circumstances. It is just bt'cause it is impossible to meet, in advance, ,dl tlilliculties, to foresee all contingencies, to ensure that all the iiateri.ds shall be produced before sentence, to avoid all possibility of mistake ; and also because it is needful to consider subse- cjuent events which may in practice alter and affect the severity of the sentence, and which may, therefore, call for a nominal alteration in the sentence in order to preserve its real eharacter ; it is because and on account of all these considera- tions, that the power of commutation or remission is set up ; and it is on these accounts only that it is at all defensible. It is in truth justice, not mercy. Instances of that truth have deen shown in the course of this argiime'iit The case is put of conviction for a crime, I care not whether serious or (jtherwise, as to which it has been demonstrated, perhaps next day, perhaps after long years, that there was a mistake; perhaps there was perjury, perhaps a mistaken identity ; some- thing at any rate has turned up showing plainly that the wrong man had been convicted, that an innocent man had been convicted. What iloes he get ' He gets what is called a " pardon." A " p.irdon " for the ciime of which lie has been found innocent I Hut we perfectly underst.'ind that h in cxdihitu justitia' : th.it it is the acknowledge- ment, although in the form of pardon, that the convict was not guilty oi the offence ; and in late years, in some cases remarkable for their hardship, a slight, though inadecpiate, compensation has been given for the wrong and suffering inflicted ; in such cases as have strongly .attracted pulilic attention and excittd sufficient commiseration to press action on the I-'xecutive, there has been some recognition of the wrong done by the State to the individual, in the way of some poor comtiensa*ion to those who had been con^'icted and had suffered in mistake. Then, yon find instances where certain character- istics of the particular offence were not brought to the attention of the Court : or you find the case of ill health subsequent to conviction, which my learned friend put, and which I tried to answer at the moment. Such cases are not all infrequent. Take the case of a man sentenced for five years to the penitentiary ; he developes illness; sometimes. .\(^ no (li)ut>l, illness is hIkiiihiu'iI , lint snmi-iimcs it i-> si-riitns. It IS fstaldislitil tli.it lonliiifnirnl in the pcnitiMitijiry lor li\«' years will iiu-.m death, or perin.incTU ill health . uill kill or wreck the man. That was not the sentence of the law ; the law did not inlt-nd to inllict permanent loss of health, still less tit inflict loss of life, wiien it ^jave a sentriK e of five years. 'I'he Jiid^e did not intend tliese other results. The senience would not have lieen awarded had it been foreseen that such a rttsult would i.ike place, and that without remedy. The practii al seiiteiH'e,soaltered,has become in.ippro|iri ate to theodtMice; .ind justiit' ii'(piires a i l•mi^;sioM , and so remission takes place , but ;dl j^oes under the n.ime of p.irdon It is the s.ime kind of pro- cedure as was introduced in e.irl) da\s, in the original Court of l^<piity, to tenijiir the rigour, ;is it was i:alled, of the common l.iw ; when, in the complication of hum:in allairs, things had so turned out th.it injustice mif>ht be done, which the ri^id common law was not c.ip.ible of recojjni/injj. which in fact it was obliged to enforce. So its rigour was tempered ; but it was tempered, not by tile measure oi "the length of the Chancellor's foot," but on principles settled to i)e equitable. Such, I submit, are tlie principles applicable to ilie exercise ol the prero(,'ati\e of jiardon. Now, Heniham has iieen relerred to; and, of course, Keiuham discusses the subject more at large, ami sometimes with leference more to what ought to be than to what is. Still, 1 think, he throws some light upon it. In Vol. l.pages^.s, in the .\ppendix, on dt;ath punishments. Henth.im is du.iling with the evil properties of the death punishment, of which he was an inveterate oppon- ent. He enumerates those evil properties, and, as a fourth, he points out that it enhances the evil effects of undue pardon. He speaks of pardon being, as yet, on .in unapt fooling; and, touching on this inaptitude, he speaks of punishment as everywhere necessary, and the application of it as everywhere a necessary part of judicial procedure, Uiit, he says, of that saiur iircpi;<'(Uirc\ power iif p.udiin is inoriMjVL'r a ictiuisiu- [i.irt : ixiuer (jI imhIoii, that is to say, as al)ove, power ot arrestinij tlie liaiuls ot the jiuiue, ami |)reveiitiii>j liiiii fidin ajipU inji pinusluiieiit. luitwith- staniiiiiii that ileiii.iiicl tor it. whicli the lonviitioii ot the accuseii has proveil to h.ive taken phue. KiMiiiisite, I say, — not necessary ; tor, without tlie existence oi any such jiower. governiiient niinht be .uiywhere carried on. lint, in this case, evils of no small maKiiitiule woiikl iinavoitl- ably have place -evils, whi h, by apt application ot par- don-power, may lie e.xchulecl; and. by such application as is actually made of them— are. in .i <fe(iree more or less considerable, everywhere excluded. Then he goes on to discuss all the evils produced by the unapt application of the pardon-power; and the restrictions on its exeriise ; and he speaks of its being in the hands of a functionary, who is the monarch, and discusses difficulties which arose according to the then existing theory of government. ' In Vol. 2, page 579, after referring to certain legislation upon the subject of partlon, he goes on to say : — What is tailed mercy, let it be remenibereil. is in many cases no more than justice ; in all cases where the grounil of pardon is the persuasion of innocence, entertaineii either notwithstaiuliUK the vertlict. or in consequence of evidence brought to light after the verdict. Then in Vol. g, page 36 : — To the vocabulary of tyranny belongs the word mercy. The idea expressed by this word is a sort of appendage to, and antagonizes with, the idea designated tiy the word justice. The woril iustice, as but too commonly eiiiployeil, III, iti Ills with the Wdid irserwd, a>> applied to punish' mint In this Mn>c, peii.il iu .tue is excniied b> the up pliialioii ot piiiiishiiii III oil liii- 01 1 .iMoii oil wliii li, anil the ipi.iiitily in whuli. It is desersed. In lliis 1 .ise. It mercy be exerciseil it is in oppositiuii to. and at the ex Jieiise of justice; in so tar as meuy is exercised, pistice Is not done. W li,il in lliis. .is in eveiy case, the jj'c.itest li.lppilless of 'he gre.ili'st liilliibri nijllires, is th.it it, on the 01 1 .isioii III (piestion, the applicitioli ot the punish' iiieiit iu (|ui!sli(ui would beioiiilucive to that happiness, the punishmeiil should be .ipplied : it not. not; If, in either 1 ,ise. justice is .ulministered. no such thiiiu ,is men y Is exeuised in either c.ise. I'mler .1 xovernmnil wliich li.is. lor Its ac tii.il eiiil. tin uri'.itesl h.ippiness ol Ihe great- est iiuiiibei. thus it Is ihal men y is unknown. Mercy un- known and why.' (iidv bei .luse tvr.iniiv is unknown. I'nder a repiescnlative ilemoci.uy- under the govern- liieiil of the .\1114lo .\iii"ncaii Ciiited St.ites, lor instance, nieicy is uiikiiowii, or .i> least might be so with griMt ail- v;iiil.iue. .111(1 ihrit'lnie oii^lit to be unknown. I'nder that government, loi .1 turn lion;iry as such to st.iiid ii|> on any occ;i'.iiui. and s.iv. I will, on this occ.isioii, show mercy, would be asnuuhasto say the power ol a tyrant is in my h.inds but on this 01 c.i^ion I will not exercise it. So again, he speaks ol tlieiiuantity of punishment, :ind tlu? ijuantity of mercy under a limited mon- • irchy, and refiirs to the etlect, and the method by which it was in liis day carried out in Mnglancl, Keniission ot punisliment, yes ; for tluit, there ni.iy be Kood re;ison on v;irious occasions ; but they .ire all ot them I .ip.ihle ot lieiiig, ;iiid all ot lliem ought lo be, specitieil. In one wold, mercy iiiid justice are incompatible. In a govci iiment where tlieie is room loi mercy, it is because justice is o\er-ruled by cruelty. .As mercy is ;i suliject of |)r;iise, the more cruel the tyranny, the gre;iter is the room m;i(le tor praise. Then I ivfei to Hlackstone's Coinmentaries, which, even with due regard to those re.serves which Mr. Dicey properly says are to be made in his case, are still lit to be considereil in this connection. Vol. 1, page a 31) : — .Ml ollences are theoretic;dly ;ig;iinst either the peace of the ."Sovereign or his t'rown .iiui dignity. Kor though in their ccjiisetiueuces they gener;illy seem, except in the case ol treason, .iiid ,1 \ el \ lew others, to be r;itlier ottences against Ihe Kinjjilom than the Crown ; yet. as the public, which is ;in invisible body, liiis delegated ;ill its powers and rights, with reg;iril to the execution ot the laws, to one visible magistrate, :ill iiltroiits to th;it [lower, and breaches ot those rights, iire imnieili.itely otieiucs ;igainst him, to whom they are so ilelegiited by the public, lie is therefori' the proiier person to prosecute lor all public ottences aiut bre;iches ot the pe;ice, being the jierson in- jured ill the eye of the law. .And this notion w;is carried so tar in the old (iotliic Constitutioii.w herein iheSovereinii was bound by his coronatiuii 0.1th to conserve the pe.ice. that in case of ;iiiy (orcilile iniury ottered to the person of a fellow subject, theolteiuler was .iccusedot a kiiul o! jier- jury. in luiving violated the coronation o.ith ; did/'aliir 'frci[issf jiixiiiit nlinii xais JKriitiim. And hence also arises anotlier hraiicli ot the iirerogative, th.it of pariloning ottences ; tor it is re;isoii;ilile thiit he only who is iiijureil should li:ive the. [lowei ol loigiving. lit prosecutions and partlons I sliall treat more at huge liereafter; and only meiition them here, in this cursory manner, to shew the constitutional grounds ot this power ol the Crown, and how regularly connected ;ill the links are in this vast chiiin of prerogative. At page 231J the note gives this extract from Hargr.ive :— - The iirerog;itive of mercy would seem to lie lodged in the ("rown. not so much from the hction that the Sovereign is the injured jiarty, as Irom the necessity ot placing it where it may be promptly and judiciously exercised. The I'^xeciitive luis. theretore. in alt countries, naturally and necess;irily been invested with the prerogative. In Vol. 4, page 404, there is a further discussion, in which the monarchic:il view is repeatedly put forward and \ery strongly held up ; and upon that and Hlackstone's general notions of prerogative, I ask your Lordships to consider the views of Mr. nicey. 37 Hicey, page 8 : — Its true ilelci.t (Hl.n kstntii-'s ('iiiniiiiMilarietl i-t the.hopr- \e^i^^ ciiiitiisiuii Ixilli ot I.iiixii.ik>' .iikI ciI tlii>ii|;lit. intro liurc'il iritii till' wlioK' Mil>|c'it >i| i (nistitiit luii.il l.nv liv Hiack-'tdlit'''' lialiit iiiiniiinti t<i .ill (In- l.iNVMts cil lll^ tunc III ,i|<|'In iiiK old aiiil iii.i|i|>liialili' tl'llll^t(l luw in stitlitlniis, .iiiil i:>|i('ilallN lit ascnIiiiiK ill wiiiiK tii a niml t'tti and (niiitltiiihiii.il KiiiK. tlu' svliiilr ,iiid |ivrlia|is lumt' tliaii tliL' wIiiiIl- lit tliu piiMCrs aitiially |iii>M'sst'd ami exerclied by William tlic l-^iiitiiieror Ami then lie prucceds tn i|iinte Klackstoiifs j^t-ii- eral Nt.ttfiiicnt im tht? pri'iomiliM-. ;iiul tlie l.mnu.it^f of his criiiiism is piiiiK'i'iit - It stands curtail) d. Imt in Milistaiuc iinaltrrnl, in tlic last filltiiiiMil Mi'iilirn\ I oiiiMiciit.il u». It lias Imt mir laiilt ; tlie sl.ili'iin'iils it Lniit.iiiis an' tlic ilirurt oppositr ol the tiiitli. Mr. IJicev, i.s, perhaps, aliltle ailtlii tcil to strcjiin langiiaKe ; liiit tliat is what, with urent reason, hu says here. The Kxeciitlvf ut luiKlaiul is in fact placed in the hand-t of a cDiniiiittic c.ilh'il tlif CaliiiiiM. It tluTC be any one [iflsoli in vvliusc sinKlc liaild tlir piiwiT ol tile St.itc is placed, that one person is not llie (.Uieeii. Imt the chnirni.in of the coniniiltee. known as the rrinie Minister. Nor cm it lie iifKril that Ul.ickstone's ilescrii)tion of the Koy.d aiithoritv «as a true accoiiiit of tlie powers of the KinK .it Ilie tiiiir HJicii Itl.ickstone wrote, (loor^ie the Tliiril en jiiyed lar iiiore real authority than h.is lalleii to the sli.iu- of any of his descend.ints. lint it would he absurd to maintain that the l.iiiKuaKe I have cited painted his true position. Till' terms used by the C'oiiimeiitator were, when he used them, unreal and known to be so. They have become (inly a little more unre.il dining the century and mure which has since elapsed. Anil he cites aK^in the suKKestioii that the Kin^,' is the fnuntain ut justice anil conservator of the peace of tin; Kinj^iloni. Here we are in the midst of unrealities or of fictions. Neither the (jiieeii nor the IC.xeciitive have anythini; to du with erectinij I'oiirls ol Justice. We should rightly c un- elude that the whole t'.ibinet had Kune nuid it lo-morrow's Ciazettc cont. lined an ( irdrr-inlduncil not authorized liy statute erectint! a new Court of Appe.il. It is worth while here to note wliat is the true injury to tlie stiulv of li'w [irodiiced by the tendency of Hlackstone, and other less famous constitutionalists, to adhere to unreal expres- sions. The evil is not merely or mainly that these e.xpies- sioiis exaRuera'c' the power of the Crown. l'"or such con- ventiona! exautjeration a reader could make allowance, as easily as we do, for ceremunious terms of respect or of social courtesy. The haim wrouRht is. that unreal lan- KuaRe obscures or conceals the true extent of the powers, both ot the (Jueen and ot the Kovernnieiit. .No one in- deed, but a child, fancies that tlic Oiieen sits crowned on her throne at Westminster, and in ner own person aiimiii- isters justice to her subjects. Hut the idea entertained by many educated men that an Knulish KiiiR orUiieiui reiKiis witliout takinti any part in the Kovernment ol the country, is nut less far from the truth than the notion that (Jueen Victoria ever exercises judicial powers in what are called her Courts. The odility of the tliinn is that to most EiiKlishmen the extent of the authunty actually exercised by the Crown, and the same remark applies (in a great measuiefto the authority exerciseit by the I'rinn; Minister, and other high otticials, is a matter ol conjecture ; and he points out reasons and circumstances. So you finii that the l.inguaKe of Blackstone — where he uses phrases to which my learned friends adverted wiien they talked of the milk of human kindness, and of this beinj; practically an arbitrary and personal prerogative, comprises obviously phrases which have, for a very long time, had no proper application even to this prerogative. On the contrary, more and mote has the exercise ol this prerogative by the person who, in the name the Sovereign, does exercise it, the Home Secre- tary — more and more, 1 say, has the actual conduct of that official in the exercise of the prerogative come under general, and public, and even parlia- mentary discussion. In a statement which was inade in connection with the Kiel case, and which will be handed in to your Lordships, will be found a collection ol remarks by numerous lliuup Secretaries during the last thirty ur torty years, showing the method of the exercise of the preio- g.itive, and making it [u^rlectly clear, iiut merely that as a matter id fact the (irerogaiiye is exercised by the Home Sei letary , iindi'r his responsibility to parliament, but that this l.ii t has, it last become public and common kiinwledge , that everyone understands it : and, we know very well that Mr. Secretary Matthews, the person who at presiiit fills that ulfiie, has undfrgnnc trei|iient and scv>;r« criticism in respect ol iiis ollu ial action. Nobody has ;iny imagin.itiun that the (.Miei'u. persdu.illy, li.is .lught to do with it 'Ihc ipiestion then which we ,ire now called iiimn to discuss is not whtiiher this prerogative sh.ill be e.xercisetl by the (Jueen, but whether it sihall be e.xercised by Home Secre- tary Matthews, or t'ulonial Secretary Lord Kniitslord, or Minister of [iistice Sir John Thompson, or by .\ttorney -Cieneral Mowat. The i|uestion simply is- it being conceded on all li.mds that tht! |iiiwer is to be exercised by some person who is resjionsible for its exercise to those concerned in its exercise who is the lit person ? And, who cati the lit person be, according to thost- principles of tlie British ctitistitiition to which i liave r(!ferred '' Who can the lit person be, save that person who is responsible to that portion of till- peoplt! which is conccrncil in the niatter, to th.'it jiortion of the people which makes the l;iw, that portion of the people which is governed by the law, th.'it portion of the ptuiple which siillers or bent^fits bv the administration of the law, that portion of the people which c;an retain or dismiss the ollicer who ;icts under the law? Klse, to the extent to which this prerogative is administered by an ollicer of some other govt'rnment, whom the people of the Province do not ri]i|Hiint and cannot dismiss — to that t^xtent they arc deprived of the Ixmetit of the great and uiidt'rlying principle of the Hritish constitution, the power of governing themselves according to their own will. The tletinition of pardon given in .Anderson's Dictionary of the Law is that it is an act of cracc proceeding from the power entrusted with the execution of the law. which exempts tlie imiividual on whom it is bestuwtd tioii. the puiiishnient the laws inflii ts for ,1 crime he has conimitted. It is in tru'li a part of the administration of justice. This liij»h prerottative the King is entrusted with on a special confidence iTiat lie will sjiare those only whose case, could it have been foreseen, the law itself may be presumed willing to have excepteci out of its general rules, which tlie wisdom of man cannot possibly make so perfect as to suit every particular case. There is an interesting account at page 513, American Law Register, of the power of pardon, directed more particularly to its exercise in the United States, but also giving an account of the I'^nglish constitutional law as to the power of jiardon, and shewing the interventions which had from time to time, and even in early days, taken place by I'arliament. Page 526 : — It was never doubted that the exercise of the Kine's pre- rogative of pardon might be restrained or controTletf by .•\ct of Parliament and several .-Xcts have been passed for this purpose. Thus, the transporting and committing any man to prison without the Realm is made by the Habeas Corpus Act. .•^i Car. 2. a crime unpardonable by the King. By 12 and i.t William the 'I bird. C. 2. it is declared that no pardtm under the Great Seal shall be pleadable to an impeachment by the Conimones in Parliament. Bv 2 Edward the Third. Ch. 2, and 14 Kdward the Third, Ch. 15. it is provided that no pardon of homicide shall be 38 granted, only where tlie King may do it by the oath ol his Crown, i.f., wlure a man ^laveth another in liis own defence or by niislurlune. Then the Koyal power, in tliis respect, was en- hirged by i j Kicliard the Second C, i ; so that at so early a time as that of Kdward the Third the King's power of pardon was limited ; and it became a statutory prerogative in the reign of Richard the Second. The sixth volume of " The Criminal Law Mag- azine," page 457, contains an interesting historical statement, including an indication of the powers that existed at one time, in the Lords of the Marches, in Wales, and I think ;dso in the district between England and Scotland. Hagaktv, C J. -The King sometimes exercised the power with the aid and consent of Parliament ? Counsel — Certainly, my Lord It was a special form of Act of Parliament, but the power was sometimes exercised in that way. Hagartv, C. J. — It shews that the Crown shared with the Legislature upon those occasions the pardoning power. Counsel — The Act of Grace is a well-known Parliamentary form of exercising the pardoning power. It has its specialties of procetiure ; it is not presented or prosecuted in the ordinary way. .\gain referring to the old powers oi the Lords of the Marches ; the power of pardon was by ■Z'j Henry the Eighth, vested solely in the King, in those regions, that is to say, in the Marches, and in Wales. And why ? Because in that country as well as in the other parts of the Kealm the King was the prosecutor of all offenders against the criminal laws of the Realm, and in His name all actions for fines and penalties were brought. It was perfectly consistent, in theory, that the King should, by means of a pardon, remit any punish- ment due to the public justice of which he was the embodiment ; and any fine or forfeiture, which he would himself otherwise receive. Hawkins' Pleas of the Crown, chap. 37, p. 529, sec. I, deals with the case of the Lords Marchers, and other, who had jura rcj^alia, rights by ancient grant, or by prescription, and cites the Act, 27, Henry the Eighth, vesting these powers in the Crown. King V. Parsons, Holt's Reports 519: — The power of pardoiiinj; all ottenccs is an inseparable incident to tlie frown ; and it is eciually for tlie g(iod of the people tliat tlie King sliouUi pardon as tliat lie slionld punish. Tlie KiiiR. by Ids coronation oath, is to shew mercy as well as to do justice. Vattel's Law of Nations, book i, ch. i j, sec. 173:— The very nature of Governiiieiit re(|nires tliat the ex- ecutor of tlie laws should have tlie power of dis|iciisinK with them when this may be done without injury to any person, and in certain particular cases where the welfare of the State requires an exception. Hence the right of granting pardons is one of the attributes of Sovereignty. But. in his whole conduct, in his severity as well as his mercy, the Sovereign ought to have no other object in view than the greater advantage of society. A wise prince knows how to reconcile justice with clemency - the care ol tlie public safety with that pity which is due to the un- fortunate. Maine's Ancient Law, p. 380 : — The modern administrator of justice has confessedly one of his hartlest tasks before him when he undertakes to discriminate between the degrees of criminality which belong to offences falling within the same technical de- scription. It is always easy to say that a man is guilty of manslaughter, larceny, or bigamy, but it is often niost difficult to pronounce wliat extent of moral guilt he has incurred, and consequently what measure of punishment he has deserved. Theie is hardly any perplexity in casu- istry, or in the analysis of motive, which we may not be called upon to coiilront, if we attempt to settle such a point Willi pre( isioii ; .ind accordingly the law ot our day shews an increasing tendency to abstain as much as pos- sible from laying down positive rules on the subject. In France, the jury is left to decitle whether the otfeiice which it finds committed has been attended by extenu- ating i.ircimist.ince> : in Kiiglaiid. a nearly unbcniiuied latitude in the selection ot puni^hiueiils is now allowed to the Judge ; while all States have in reserve an ultimate remedy for the miscarriages ol law in the pierugative of pardon, universally lodged with the Chief Magistiate. Xow, my Lords, I must observe that, with reference to the exercise of this particular prero- gative, there are some things which have in past days confused the ideas of the general public mind. The very circumstance, commented upon by Dicey, of the existence of notions widely spread, regarding the Sovereign's personal authority as still sub- sisting, and touching the personal character of prerogative, has had special weight with regard to this prerogative of so-called " mercy " and " par- don;' and the very name "pardon," the very name " mercy," has served to maintain in the popular mind, longer than in other matters of a cognate character, notions as to the exercise of an indiv idual or personal prerogative of the Crown. Many other prerogatives are of such a character, and are exercised under such circumstances that they do not strike the popular mind, or impress the general thought so forcibly as is the case in respect of convictions after interesting public trials. The incidents of the cause; the feelings which must always animate the breast of man, moved liy the condition of the wretch who is to suffer the great penalty of the law ; the dramatic, even tragic, character of the events ; the shortness of the interv.'il within which the punishment is to follow the finding of the jury -all these things have made the exercise of this particular prerogative the subject of popular thought and interest, and of popular misconception too, more, perhaps, than the exercise of any other such power. This mis- conception has been seriously enh.inced by the still fresh memory retained of notorious historical instances, in which, under the guise of a consti- tutional exercise of the prerogative, at times when prerogative notions stood much higher than they stand to-day, the monarch himself has been put forward as the granter or refuser of the prero- gative of mercy. You have the instance which the great master of the art of the novelist, the great exhibitor of the thoughts antl fancies, habits and customs of the people, to whom reference is made by Dicey, has made familiar by the affecting episode of the journey ;ind appeal of Jeanie Deans. You have the incident in i7i3of the Countess of Nithisdale, and Lady Cairns ; growing out of circumstances in which it would be naturally supposed, that for some reasons, the monarch was specially the person concerned, because they h.'id regaril to attempts against his power and, no doubt, against his safety. Those ladies appealed personally to their Sovereign for their husbands, then lying under sentence of death. Not meta- phorically but literally. Lady Nithisdale laid herself at his feet, clinging to his robes, praying for his mercy. Those tears ;ind entreaties, of course, pro- duced no eflect ; the decision even then was in other hands. Still, that was what the public saw ; it was that by which the public was impressed. So, take the remarkable episode in which James, exhibiting a callousness which outraged common decency, and the ordinary feelings of humanity. .^0 R.ive an inierviow to liis own m^pliew, Moniiioiitli, and allowed ilu; unhappy man to kneel, imploiiuf;, at his feet ; althou^'h he was all the time deter- mined to resist the supplications he allowed, and, so far as he was concerned, to consiuuniate the execution. All these thiuj^'s Idled the mind of the public, mcjre uv less, with the idea of a continuing personal prerogative of pardon, liui that notion, in a Court of Justice, in a parliament, amongst constitution- alists, amongst jurists, is as utterly exploded as the notion of the personal exercise of any other prerogative that can be named. While there may bo some specialties perhaps even yet attending the exercise of such prerogatives, for example, as that oi dissolution, or that of the choice of a (irst minister, or the ennobling of a retiring first minis- ter ; yet as to the vast mass of prerogative powers it is common knowledge to-day, and it is becom- ing common knowledge to-day with reference to the exercise of the prerogative of mercy, that the personal wishes, the personal views, the personal influence, or the initiative of the Sovereigti have no more to do with the exer- cise of these prerogative acts than they have to do with any other act of Government . In this par- ticular instance, as in all others, if the Sovereign decides to take issue with the Minister of the day, and not to follow ad\ice to which that Minister adheres, she must find someone else who will ad- vise her as she wishes, she must act on the advice of some Minister responsible to her people. The principle of the Hritish Constitution applies to this just as much as it applies to an\- other preroga- tive ; and therefore this, in common with all otlier prerogatives, is to be exercised with responsibility to that British community which is affected by the act. I have pointed out to your Lordships some reasons why, in the general sentiment, this prero- gative has been, up to a later date than others, loosely considered as more personal to the Sovereign, throughout the Hritish Dominions, within the British Isles, as well as elsewhere. There is, perhaps, an additional reason why it for a time appeared in our ow n Ci^lonies to he one more personal to the Sovereign ; and to be exercisable by her representative, independently, or otherwise in communication with Her Colonial Secretary. In truth, the general notion as to local action on this subject, may be said to have rather retrograded than ad\anced after the .\tnerican devolution. As I said yesterday, the old Colonies exercised the prerogative before the Revolution It may be suggested that at that time the necessity of the case demanded it. In that age the cominunication between the old and the new world was very infre(]uent : and the time occupied in transmitting intelligence was very long and very uncertain. With the facilities for speed in communication, that difliculty was, if not altogether dissipated, at anv rate diminished. So again, after the Revolu- tion, although the particular point upon which the Rebellion m.iinly turned, that, namclv. of taxation, was at once and forever abandoned, still our own re- maining Colonie;,, so far as their Rnglish-speaking population was concerned, were composed, as I have said, very largely of Ihiited TCmpire Loyalists, imbued with the very strongest sentiment of loyalty to the Sovereign, with the very strongest feelings of abhorrence for rebellious action ; and naturally disinclined to complain of, if not rather inclined to welcome any exercise of prerogative power which did not greatly and prejudicially affect their tangible interests. .\s to that portion of our Colonies whose,' pipulation mainly consisted of the con(piered subjects of I'rance, those people were few in number, and isolated in position; and thev had been accustomed to a much less measure ol liberty than the I*"nglish : so that the character- istics of the population of the colonies, the small- ness of their numbers, the rudimentary nature of their institutions, and all the elements which surrounded the Queen's empire in this northern part of the continent, conduced toignoratice of and indifference to the growth of changed popular views as to the exercise of this prerogative else- where. And, so far as Kngland, in her relationship to the.se Colonies, was conc(;rned, there was, of course, the natural feeling, which perhaps is not wholl)- extinct to-day, that, if we would only allow them, they could govern us much better than we could gcnern ourselves ; that we were not lit to exercise all the arts of government. .\nd besides there was a natural clinging to the form of power, a natural clinging which, in the case of Kngland, has been intensified by pecidiar circumstances affecting her dealings with her numerous ("olonial possessions. She has had one Imperial office, and one set of permanent ofticers, with one political head, administering that portion of control and power which the Hritish Constitution, fluctuating as it does from time to time, confers over a very large number of dependencies : w hich dependencies are themselves in various conditions of forwardness with reference to self-government. Some are gov- erned as purely Crown colonies ; in some there is an Executive Council in which the Crown predom- inates ; while in others there are representative institutions more popular than these, but still with a more limited range of power than exists with us. It was natural then that the Colonial office, dealing with these various kinds of depend- encies, and exercising great and real power over some, should cling to the notion that the exercise of such power was an object as to all ; and was to be guarded to the uttermost. Bi'RTON, I — I do not exactly remember how- the thing stood before 1.S40. There was a Lieutenant- Governor for this Province, but I was under the impression that there was, under the constitution of that day, a Governor-General. CoiNsEi, — I think there was the Governor of the Province of Canada, who was the Governor of Quebec, and Lieutenant-Governor for the Upper Province. Burton, J — And how was the pardoning power at that time ? Did the Lieutenant-(Jovernor at that time exercise the pardoning power ? CoiiNsiii, — My researches were from the .\ct 01 Union down ; I did not pursue my enquiry further back. Burton, J. — Of course, he was appointed by the Crown, but he was only Lieutenant-Governor. Mr. Irvinc; — The last was Lord Sydenham, and he was Governor-General of Upper and Lower Canada, and he being here opened this Parliament as Governor-General. Hag.\rtv, C. J. — Yes, I regret to say I can re- member it very well. Mr. Robinson — There was no statutory provi- sion. Counsel — Before I close I will give your Lord- ships a reference to such statutory provisions as I have been able to find. 4° As 1 lia\e said, all those cotulitions which clouded a clear perception of the character ot this prerogative, and of the method in which it should be exercised, are now chant;ed, and all is now plain i but with reference to certain remote eventualities as to Canada, and tcj some even more remote as to the Provinces, there may remain to- day the possibility of the existence of Imperial considerations ; theoretically, at any rate, Imperial interests may at some time i)e concerned ; and 1 think the only exception which can now be held to exist, the only modification which can now be held to apply to the exclusively local exercise of the prerogative is in the possible case of an Im- perial interest, arising from the execution of some local law against some sul)ject of a Foreign Power in a manner which gives, in the view of that Power, concurred in by the Imperial authority, just cause of offence. In that view, theoretically speaking, technically speaking, speaking of pos- sibilities, it may be said that there is an Imperial interest, which perhaps may not necessitate, but which perhaps may after all be served by the reser- vation of a right to exercis;- iit such cases the pre- rogative of the remission of sentence. )t is this, and this only, as I will shew your Lordships moreat large in a moment, which confessedly now remains as a subject of possible consideration ; and from an early period the fact that Imperial interests might arise, while, as a general rule, local interests alone existed, was recognized in custom, and also by Statutes. This circumstance it is, which ex- plains certain specialties of former legislation ; and which rendered it perhaps not unfitting, that, carrying into all its elements the very great caution which has pervaded the mind of the framer of this particnlar statute, he should have saved the Royal Prerogative even here and now. Hut, it is needful to reinark that, with reference even to this exercise of this prerogative, the general proposition that the prerogatives of the Crown are held in trust for the people, and that the people's interests must be secured by the appli- cation, to all existing and active prerogatives of the Crown, of the principle of responsible govern- ment, ,'ipplies ; and that in this case, as in other cases, the diminution or extinction of the personal authority of the Crown may take place without any positive action; by mere inaction; by simple disuse. There is nothing more remarkable, and nothing more instructive, than that circumstance. You inay turn to the greatest prerog itive, perhaps, which the Crown ever had; and you will lir.d that, according to the concurrent judgment of all con- stitutionalists, it has disappeared ; and that by no Act of Parliament, but by simple disuse ; and that too by disuse which, having regard to the nature of the rights of the Crown, and the historic cir- cumstances of the case, has been of no very long durE.';>..i. I refer to the prerogative of exen^i ing an adverse judgment on Bills presented for the koyal assent. It is now held that that prenjgative, which was actually used by the monarch of the Revolution, has become for all practical purposes, non-existent, simply by reason of its disuse ; and in its place was substituted a great ainelioration. If the Sovereign thought that he ought not, with- out exerting the reserved powers of the Constitu- tion, to agree to any proposed measure of legisla- tion, then instead of waiting until that measure had passed-all its stages, and was presented to him for his assent, and thus coming early and perhaps net:dless!y into collision with the settled and final judgment of both the law-making Houses, he might invite his Ministers to oppose the Hill. If they did not choose to take the responsiiiility of resisting, he might, if it pleased him to go further and take graver steps, seek other Ministers, who would assume the responsibility of resistance; ;ind he might thus obtain, by the means of respon- sible Ministers who were answerable for their course, a defence against what he conceived to be erroneous legislation. If that defence seemed about to fail ; if he saw that the judgment of the popular House was after all in favor of the mea- sure ; and if he thcjught, advised by his new Min- isters, that the judgment of the House did n<Jt represent the real feeling of the natiim, and that the issue was important enough to render proper a recurrence to the sense of his people (to use the well-worn phrase), then he might, on advice, dis- solve ; and ultimatelv the settled will of the peo- ple as expressed at the polls would decide the (|uestion, and the l;iw, if passed by the new House, would be assented to. Thus collisions were as far as possible to be averted or postponed ; the monarcli was thus to take all possible precautions, consistentl}' with his constitutional position, for the final settlement and ascertainment of the popular will ; that being ascertained, to that he was to yield. So you see that by a .u'r lual pro- cess, not embodied in any .\ct of Parliament, not formulated in any resolution, but by disuse on the one hand and the growth of new customs upon the other, the greatest prerogative of all actually perished. .\nd indeed a like process has been rapidly limiting, or has already destroyed, the powers of the monarch to press even to the nar- rower extent and l)y the more constitutional means I have sketched out — to press to the extent of dismissal or dissolution, thcuigh under the shelter of advice, his personal opinions. Similar modi- fications are traceable throughout the body of the constitution ; sometimes by limitations on the practical exercise of the power; generally through a recognition of the fact that the prerogative has become so largely the property vf the party for the time being in power ; and uni\ersally by the application of the general principle of the con- stitution, namely, that the prerogative however active can be exerci.sed only under advice. Well, the notions 1 have mentioned as to pardon lingered here for some time ; and the Iinperial interests to which 1 have referred were, of course, deemed to bo of greater consequence, and the danger of their neglect thought to lie more serious in earlier than in later days ; but they came down to our time ; and there has been considerable dis- cussion and controversy upon the subject of prerogative generally, and upon the subject of this prerogative in particular. To glance at it historically with reference to our own Cf)nstilution. so far were those who framed the constitution from supposing that there was any difficulty in the exclusive exercise by the Provinces of the prerogative of pardon in all cases, including crime, that, as my learned friend has said, the Quebec resolutions proposed that it should, on grounds of convenience, be dealt with exclusively by the Lieutenant-Covernors of the Provinces. In the th'.'u state ot sentiment as to this prerogative, that proposition did not wholly commend itself to the Colonial Secretary of that day ; and the .\ct of Parliament was framed, not 4t vesting the prerogative in express terms one way or the other, but omitting the proposed article, and leaving the matter to be settled under the geneial terms of the statute. Then came, at a later day, the question of the principle upon which this prerogative should bf exercised by Canada ; and the old clause was for some time continued in the commission or instruc- tions to the Governor-General, directing him in capital cases not to act necessarily upon the advice of his council ; to obtain their advice, but not necessarily to act upon it. Then arose an animated and protracted discussion in and with some of the Australian Colonies, as to the prinr- le upon which this prerogative should Ije exercised ; whether it was to be exercised by the Governor of the Colony independently of or, at any rate, not necessarily following the advice of his Ministers ; or whether it was to be exercised according to the principles of responsible go\ern- ment. There was a long correspondence ; the views of the Home authorities were invoked ; and they sent certain despatches. Meantime there came up, here in Canada, a question as to another prerogative power of our Governor-General, the power of disallowance ; and it appearing that in a particular case the Home Secretary had sent a despatch to the Governor of the day, intimating his opinion that the power of disallowance was a prerogative which he was to exercise personally, not following the advice of his Ministers.thecjuestion was raised in the Canadian I'arliament ; and a res- olution was proposed afiirming, as applicable to the exercise of that prerogative po.ver, the principle of the Constitution ; namely that it could be exercised only under advice. That resolution, though with- drawn for the moment at the instance of the Go\- ernment of the day, was .so withdrawn after an expression of entire concurrence in its \ievvs by Sir John Macdonald, then in Opposition ; and after 1 practically unanimous e.xpression of opinion in its favor, withdrawn only upon the representation that the government was in communication with the Imperial authorities upon the subject of that despatch. That correspondence after some time reached a point at which the Colonial Secretary transmitted the Australian correspondence on the prerogative of pardon, as indicating the grounds which bethought applicable to the exercise of the prerogative of disallowance. Lord Carnarvon thought that the prerogative should be exercised afttr advice, but not necessarily upon advice ; and he thought there were very good reasons, which he had given in his despatches about the prerogative of pardon, why it would be to the advantage of the Colony if a little " Dcus ex Miicliinn " were set up in the shape of the Governor of the day, who should personally dispose of these matters, no one being really responsible to the Canadian people for such disposition ; that was his sugges- tion. To it the Canadian authorities made answer, opposing that view; and I refer now to the print of official correspondence put in, as showing your Lordships the way in which the suggestion was met, and the practical results. The earliest paper is the report approved by Council, and transmitted to Lord Carnarvon, in- dicating the view of the Canadian Government upon the exercises of the prerogative ; and at page .\ your I^ordships will find the view expressed as to the vital necessity of Ministers concurring in, and being responsible for whatever was done, or not done, upon the matter. Page 5 points out that t'.ie question involves simply the application to a plain statute uf the well-settled rules ot construction, and the applicatiuu to a plain case of the fundamental principle of the constitution, viz., that of responsible Government ; and, it takes certain distinctions which had been raised as to the prerogative of pardon ; and which, therefore, ren- dered discussion of t'lP' subject in its details irrelevant to the discussion of the subject in hand ; but it adds that it is not possible to deal with this power on principles dif- ferent from those which apply to the exercise of the other powers of Government conferred in like terms by the statute. Thus the discussion involves the whole question of responsible government, and if the rule proposed by Lord Carnarvon is conceded, it would be impossible to resist its application to our entire system. After discussing Lord Carnarvon s proposed rule, it shows that Ministers are in truth responsible, not merely for the advice given, but for the action taken ; that the Canadian Parliament Ins ihe right to call them to account, not merely for what is proposed, but for what is done ; in a word, that what is done is practically their doing. The importance to the people of the advice given by Ministers is in precise proportion to its effectiveness. So long as the course pursued is dependent on the advice given, re- sponsibility for the advice is responsibility for the action, and is therefore valuable; but it is the action which is really material ; and to concede that there may be action contrary to advice, would be to destroy the value of responsibility for the advice— to deprive the people of their constitutional security for the administration, according to their wishes, of their own affairs— to yield up the substance, retaining only the shadow of responsible government. And the conclusion was that the Colonial Secretary should be informed that in the opinion of the government, no action could be taken on the question, save by and with the advice of Ministers who are responsible to Parliament tor such action. Further correspondence ensued ; but the end was that the Colonial Secretary, without saying so, yielded ; and since then it has been the common understanding of all parties, including the Home authorities, that this power of disallowance, vested in the (lovernor-General, is a power and preroga- tive to be exercised upon advice, and only upon ad\ice. Now, as I said, the principles of action which Lord Carnarvon had propounded for the assent of the Canadian authorities, principles which would have subverted responsible Government, were by him originally propounded with reference to the case of the prerogative of pardon, though he was at the moment applying them to the prerogative power of disallowance ; and shortly afterwards that (juestion of pardon itself came up directly, because a draft general form of Commission and of In- structions, proposed to be applied to the future fiovernors-General of Canada, was sent out for the consideration and observations of the Government ; and subseciuently the Minister of Justice of that day was authorized to communicate with Lord Carnarvon upon this very question. At page 9 your I^ordships will find a statement of the grounds which, with the authority of the then Government of Canada, were laid before I^ord Carnarvon, in the general, and in the special view. That statement indicates that not merely the forms which were proposed, but even those at that date existing were felt to be unsuitable; and it states the proposition, which I have already advanced to your Lordships, that therf^ were differences in the constitutions and circumstances of the different dependencies of the Empire, en- 42 titling some of them to ,i fuller measure of freedom than others, and entitling the Dominion of Canada prominently, principally, most of all to ask special consideration, and a more free and full application of the principles of responsible government even the fullest measure of freedom in local political government. Well, after that general ohsetvation, the tenth to the fourteenth pages deal with the cpiesiion of the Commission and Instructions on the subject of pardon ; and it is there suggested that the sub- ject of pardon is, in effect, a branch of Criminal Justice ; that it has been rightly assumed to be within the legislative powers of the I'arliament of Canada ; and various statutes are referred to. After some details, not necessary to be now con- sidered, on page II the chief question is brought forward, tliat arising on the instruction given to the Governor that he is, in capital casts, to extenil or, withhold a pardon or reprieve according to his own deliberate judgment, whether the members of the Council concur in it or otherwise. It is pointed out that there is no ground of reason upon which this distinction can be applied to capital cases; and that the only ground of reason, the only tenable distinction, is between cases, whether capital or net, which may involve Imperial inter- ests, and those which, not involving such interests, concern solely the internal administration of the affairs of the Dominion. After a discussion of the method of dealing with the cases which may involve Imperial interests, it is argued that (saving and providing for those cases in what m.Miiur may be thought fit), they are after all infinitesimal in number; and that the general bidk come within the ordinary rule. A contest is then entered upon as to the reasons alleged lor tne non-application to the Governor-General, in his exercise of this prero- gative, of the limitary rule that it must beexercised under .advice. These reasons are repeated, nainel)-, first, that this is a personal delegation to the Gov- ernor, who cannot in any way be relieved from the duty of judging for himself in every case in which the prerogative is to be exercised, and so forth. Reference is then made to the report, from which an extract is made, upon the question of disallow- ance ; and then additional arguments are advanced. It is pointed out that tlie prerogative of pardon Mas been rightly vested in the Sov- ereign l)y statute, siiicl criminal offences are against her peace o. her Crown and ilitjnity. and it is reasonalile thai th(.' person injured should have the powi'r to forgive ; tun ncltlier the punislinieut of tliese injinies nor (lieir forgiveness (l)oth beiuK matters which aOect tlie penpU') is arl)itrarv ; tlie one can hv, and arcordiiinly is, reKulated principally liy law, though a wide discretion as to the piniishment is >;iven In many cases to the Judge ; the other beiiiR niaiidv hi^yond the province of law, is yet, like the remaining prerof;ativ<'s of the British Sovereign, held in trust for the welfare of the people, and so far as it is beyond the province of the law, isrunulated by the general principle of the Constitution. There may in this, as in other instances, be some difficulty in ruiming out an exact analogy between the position in Canada and in England ; but I venture to suggest that the application to this subject of the fundamental rule of the Constitution, as expoimded in the report referred to, affords the true solution of the question, and would fuinish the nearest possible analogy between the practice to be pursued in each country. In the United Kingdom, while the British Parliament makes laws for the punishment of crimes connnitted l)y the inhabitants, the Sovereign exercises her prerogative of mercy towards such criminals, under the advice of her Minister there, who is chosen as other Ministers are chosen, and is responsible to the British Parliament for his advice. Therefore, in the United Kingdom, this power is exercised under the same restraints and with the same securities to fhe people concerned as the o;lier powers of government. This, it seems to me, is the practical result which should be i>biained in Canada. Tliire, while the Cmailian Parliauient makes laws for tlie liuiii^hnu;iu of crimes eoinmitted by the inhabitants of Canad.i. the Sovereign "hould exercise the prerogative of m<'rcy towards such criminals imder the advice of her Privy (Council for Canada, or of lur .Minister there, chosen as her •ihcr Canadi.m Ministers ari' chosen, and responsible to the Canadian P.nliament for his advice; nor, having regard to the re.isons given m the report already referred to. can it be coiKH'ded that the suggested responsibility of the Governor to the ("olonial Office for the exercise of this |)Ower, indepen- dent of, though alter, advice, would l)e a satisfactory sub- stitute for t.u: responsibility to the Canadian people of a Minister charged with the usual powers and duties in this respect. The second argument of Lord Carnarvon, which was that of political expediency, the general argu- ment that we are unetpial to the position and func- tions of government, that pressure would be brought to bear on the I*-.\ectitive,and that it would be very much for the better, ;ind greatly to our .advantage, if we would allow other people to manage our busi- ness for us ;it their pleasure, is then discussed. Now, your Lordships will observe the p.inciple here laid down on behalf of Canada, a position to which 1 attach importance, because it has been accepted ; because it has been agreed to ; because the Commission and Instructions have been altered in accordance with it ; because it has become there- fore the .settled rule, and that after a more definite and satisfactory fashion than many rules of the British Constitution; because the attempt to deal with any ordinary cases, to deal with any case ex- cept where Imperial interests may be involved, was, upon these remonstrances, abandoned ; and because it is now practically, I may say formally, conceded that the prerogative is to be exercised according to the rule we then propounded. What is that rule ? It is the precise rule I ask your Lordships to lay down to-day. It is the ride that settles this case now before you. There, it was ctmtended that the (Canadian I'arliament made the criminal laws; that they were made by the Canadian I'arliament for the Canadian people ; that they were to be ad- ministered by an ICxecutive responsible to the Canadian people; that of them the prerogative of pardon for crimes was part ; that it was a branch of criminal justice ; and that as such it was to be administered by persons responsible to the people concerned. vSo— exactly so, here ! With reference to the Provincial laws, providing I'rovincial sen- tences for Provincial offences, precisely the same anal igy .applies ; and precisely the same result should ensue ; and thus that body politic, that com- munity which, in each case, makes the law, creates the prohibition anrl defines the punishment, which administers, which enforces the Law, is the body politic to which the Ministers advisingthe exercise of the prerogative .as a branch of the .administration of justice must be responsible. I also advert to the part of the report which refers to the proposed "Royal Instructions" at p.age 14, dealing with a somewhat astonishing at- tempt to authorize the Governor to act in certain cases in opposition to the advice of his cabinet. Here, once again, a statement of the constitutional rule was attempted, a statement which derives, I am quite ready to admit, its main value from the fact that it was accepted by the other side to the controversy, the Home authorities, has been ac- cepted without demur by all parties on this side of the Atlantic, and therefore, niay perhaps be taken accurately to express the re.ading of the constitu- tion. Your Lordships will find at page 17 the 43 proof of my last statement, iv. the remark made as to the framingof the draiis which were transmitted, and whicii are, with some siignt changes, made at the suggestion of the Canadian Government, in the direction of self-government, the drafts adopted : — In fraiiiiiiK ihcsi; diafis c\i:ry eiuiiMVor lias been made to meet the views i:xpresse(l in the nieni»i'.:MiluiM drawn up by Mr. Ulake and tlie siib-ronnnittee ot tlic I )oiniriiijii, which w.is enclosed in yom despaKli of the fitli April last, and in the furilier nieniorandinii received from Mr.lilake in thiscounti y. So that the question was settled upon the line which these ptapers shew to your Lordships, and therefore, we have a satislactory exposition, con- curred in by the political department of the country immediately concernetl, and by the Imperial Government, in favor of the existence and applicability of the fundamental principle of the constitution, not merely as to the prerogative of disallowance, but also as to the prerogative of pardon ; and all that now remains for us to do is to run out the analogy in the case of the Province, and to deal out to the Province just the same measure of political liberty, in this regard, which it is entitled to in all other regards. The next important document which is to be found in this paper is the despatch of the Colonial Secretary at page nj, with reference to the Letellier case: and I allude to that also as markedly indicative of the growth and present establishment of the constitutional principle. You hnd in the fifth paragraph a statement of the position of a Lieutenant-Go\ernor, according to the view of the Home authorities; and in the sixth paragraph a statement as to the position and functions of the Governor-General ; and you find also a statement of the position and functions of the Home authorities, as to the action of the Governor-(jeneral. You lind it stated that the Lieutenant-Governor has a plain right, if he feels it incumbent upon him to do so, a constitutional right to dismiss his Provincial Ministers; you find it stated that the Governor-General is bound to act upon the sustained advice of his own Ministers, although it may be opposed to his own opinion, as to whether a Lieutenant-Governor should be dismissed or not. You find it further stated that with that matter the Home authorities have vo concern whatever ; that, although they offer their answer to Lord Lome in an abstract case because he asks it, yet they do not interfere at all, because the matter must be worked out by ourselves under our constitution, the Colonial odice formally abandoning all intervention in internal matters. The Canadian (iovernment and Parliament adhered to their view that a Governor had no longer, under the development of t)ie British consti- tution, the right to dismiss Ministers who retained the confidence of the f^egislature, and that his act, although endorsed by the people, involved his own dismissal from office. Until very lately this pre- cedent was supposed to have settled that question for Canadians ; but it has just recurred in an unex- pected form, and on the issue so joined some com- batants have changed sides. The Letellier case, however, marked an important advance. It declared and emphasized the exist- ence of constitutional conditions under which the independent action of a constitutional Governor was brought within very narrow^ limits, and his obligation to give his entire confidence to, and cheerfully follow and second the advice of his Ministers, so long as they were sustained in Parliament, was manifested, and the full responsi- bility of those Ministers for all acts of government was, of course, in the same degree accentuated. That was the condition of things made plain by the Letellier case. And that condition of things was reached after experiences which were perhaps rather painful and humiliating ; because, not very long before, there had been an attempt to evoke the " God out of the machine," in this very matter of pardon, with reference to a crime wliich had in it some of the elements of a political crime, the murder of Scott. Lord i_)uflerin had assumed that the matter had passed beyond the pro\ince, as he expressed it, of l")epart mental administration, and had himself given a direction to his Minister toprepare and pass an instrument, commuting the sentence of death passed upon Lepine on certain terms which he thought satisfactory. Lord Dufferin's conduct was approved by the Colonial Secretary ; and there was a very animated debate upon it in the House of Lords. Several Peers who liad formerly been Governors of Colonies, and one or two for- mer Colonial Secretaries, took part in that discus- sion ; and there was a chorus of applause as to the wisdom of Lord Dufferin's course, and much sage remark on the high value and importance to a colony of this independent action of a Governor, showing how greatly the local politicians were relieved by it, and how very much better it was that tilings should be so managed for, instead of hy the Colony. Lord Dufferin, himself, sent, early in the business, despatches, which are to be found amongst the papers, containing newspaper extracts indicating that the results had justified his action. But, what happened ? Why, within three months of that day it was found that it was too late to evoke in our affairs " the (iod out of the machine;" it was found absolutely necessary for the states- men who were responsible to the people of Canada to assume the responsibility of the government of Canada in that very particular. It was found necessary for them to take up that responsibility themselves, hampered and complicated as the question had become by the events to which I have referred ; to take the responsibility of actually effecting a different disposition of the case from that which had been under such favorable auspices made bv Lord Dufferin. The mode they adopted was, in substance, though not in form, that of the Act of Grace; they proposed, upon their own responsibility as Ministers, and they invited the House of ("omnions to assent to, an Address to the Crown stating reasons why in their opinitMi a particular course should be pursued in the case of the persons concernetl in the Scott affair, and retpiesting that that course should be adopted. And it was adopted ; we disposed of that matter in our own way. Well, that settled the question as to Pardon ; it settled it forever ; for a few years later a like matter came up, in which one of the actors in the earlier affair had been concerned ; and which created a degree of political excitement very much higher than the earlier— I refer to the question of Kiel. And then, as your Lordships will remember, so conclusively had the former transaction demonstrated the truth of the pro- position that the Canadian people would and must have their own affairs settled solely by persons responsible to themselves, that, embarrassing as the question was, there was not the slightest sug- 44 gestion on the part of a single individual, from the highest to the lowest, that it should or could be settled otherwise than on the responsibility of the Canadian Ministers, they giving their advice to the Governor-tJeneral, and he acting on that advice. In all the course of that agitating discus- sion, conducted in the press, through the country, and in Parliament, there was not the remotest hint that it was possible to repeat the earlier phase of the Lepine operation, or to get rid of the difficulty i)y the patent plan which had then so lamentably failed. Hagakiv, C. J. — How did the difficulty arise there ? It was merely a question whether the sen- tence of law should be carried out. There was no intervention of the pardoning question at all, w.is there ? CouNsKL — Yes, my Lord. Hagarty, C. J. — The sentence was the sentence of death. Well, if nothing had been done it would have been carried out. Counsel — Surely. Hagarty, C. J. — How did the question arise ? Counsel — The question whether the Executive ought to e.xercise the prerogative of commuting or remitting a capital sentence always arises ; and as to the North-West, the law made special provision. Your I^ordship is aware, no doubt, that rather less than one-half of all capital sentences are executed. Hagarty, C. J. — Oh, you may say one-third. Counsel — Unless things have changed since the time of Kiel, I have stated it accurately. Hagarty, C. J. — I was a great many years a Judge in criminal matters, I tried an immense number of capital cases ; only very few sentences were ever carried out. Counsel — Statistics of them are in a paper which will be handed in. It is enough to say that, in at any rate the majority of cases, the capital sentence is not carried out. And, as that paper shows, the reason is plain ; namely, because in capital cases, and in those cases only, the sentence which the Judge is obliged to give is the maximum sentence for the crime. In all oth". cases he is allowed a discretion, and he attempts to fit the punishment to the crime. But, where he comes to the capital sentence, there he must give the maxi- mum sentence of the law ; and it is consequently well understood to be the duty of the Executive to consider and to moderate ; to do that which in other cases the Judge does ; to moderate and to fit the punishment to the crime; and it .so happens that capita', punishment does not, m the view of the country at large, fit the crime in the majority of instances. It is the same in England ; about one-half of the capital sentences are executed. What I say is this, that with reference to Lepine first, and to Riel later, each of whom stood under sentence of death, the question came up in the most formal manner, as to whether the sentence should be commuted ; and by whom ; and how ; and under what circumstances ; and we have a most vivid illustration of the rapid growth and development of sound constitutional principles, when we look at the attempt that was made in Lepine's case ; the failure of that attempt ; and the unanimous adoption, in the later and greater and more difficult case, of the view that the affair should be settled on the responsibility, and the sole responsibility of the Ministers of the people concerned. Thus I claim to have shown clearly that the fundamental principle of the British Constitution is responsible government ; that the principle extends and applies to the exercise of prerogative powers ; that its application includes the preroga- tive of pardon ; that this principle, thus extended and inclusive, applies to the constitutions of Canada and the Provinces, each in its own domain ; and that its enforcement recpiires that the Province which makes the law and provides the sanction shou'd also, through its responsible Ministers, de- cide to what extent the sentence of the l;iw shall in any given case be executed or remitted ; and forbids that any otiier power should be .lilowed to meddle with the law, impair its effectiveness or control its administration, by altering the sentence it provides. I now ask your Lordships, without reading it, to be permitted to make part of my argument, the paper commencing at page 23 of this print, being the desp;itch of the Lieutenant-CWnernor of Ont- ario to the Secretary of State, with reference to the yueen's Counsel case, to which my learned friend referred. A large portion of this state paper has regard to the specialties of the (,)ueen's Coun- sel case, and with that I do not ask or propose at all to trouble your Lordships A part refers to the circumstances under which the decision in Lenoir ?'. Ritchie was reached, and the dicta in Lenoir v. Ritchie were uttered, and to that I ask your Lordships Hi refer in order te) save the time I should have to take in stating those circumstances. (Jn the 32nd page commences a general argument upon the question of Provincial rights, in matters of prerogative, of the highest value, containing historical statements, and chains of reasoning to which I desire to attract your Lordships' attention, and which in order to save time I ask your Lord- ships to permit me to make a part of my argument. In the result the remote but possible case of Imperial interests is fully met by the saving of Her Majesty's prerogative, which enables her to act in any case in which she thinks that the peace and the foreign relations of the Empire might be imperilled by the execution to the full of an undue sentence .against some subject of a foreign power. In the result therefore you have here to deal with domestic and internal concerns alone; and that which is domestic and internal, ex coiicessis, con- cerns only the people of the Province of Ontario. It is their law, their power of self-government, ^/ic(> plan for effectuating their laws, ///f(> method of tempering justice with mercy, (if that be the proper phrase, but I prefer to say of accurately carrying out the intent and spirit of their laws) ; it is their concern and theirs alone, which this power touches. To whom then, and to whom alone should this power be committed ? To whom, under constitutional principles? To whom, ac- cording to the light of reason ? Whichever way you look at it, from whatever point of view, the answer is the same ; to the people of Ontario. It is a branch of the administration of justice ; it is a part of the imposition of punishment ; it is a con- dition, without which the imposition of punish- ment may itself involve injustice ; it is an essential element in the operation of the law ; it is the completion, to its full extent, of the work of the Local Legislature, dealing with a local offence, in which a local public is interested, the prohibition for which is created by a Local Legislature, the punishment for which is provided bv a Local Legislature, the modifications of which punish- 45 ment are, therefore, also to be proviiled under the authority of the same Legislature. Besides, there are other ways of dealing with this matter, confessedly, even as to crimes, within the local power. There is the ho//** />r'>sf(/H(. Who directs a nolle prosequi? The Attorney-Cieneral of Ontario, There is the right and custom that the local law officer of the Crown, if he deems the interests of justice will be best so served, may ab- stain from offering evidence upon a trial, and thus secure a verdict of not guilty. Hy whose author- ity ? That of the Attorney-Cieneral of Ontario. All that may and must be done by the local auth- ority. Hut, if those methods of practically exon- erating fnmi the consequences of the Provincial law have not been adopted, and if the (juestion is whether the sentence has been excessive, or whether the convicti )n has been mistaken, or whether the condition of the prisoner is such as to render commutation necessary to justice — if any of these ipiestions arise, then 1 say that with regard to them, as with regard to the others, the local authority alone can clival. 1 told your Lordships that I would refer to some statutes which seem to me to throw some light on them-.tter, and which should be stated before the argument is closed. The .\ct of Union, 3 and 4 Vic, Imperial, Ch. 35, the Act reuniting the Provinces provided that :— notwitlistanding anyttiini; in the Act contaitied it should be lawful for tlui QucL-n 10 autliorize the I.ieuteuant-Govoriior of Canada lo cxccutf wiiliiii any pans of the Province, not- wilhstaiidinj; the picsi^nce of the (loveiiuir. such of the powers, functions, and .luthorities, as well judicial as other, which before, and at the time of passin^^ this Act, vested in the Governor, Kit lUiMiant-Governor, or person administer- inj! the GovernnuMit of the Province of I'pper Canada and Lower Canada respectively, or of either of them, and which, from and after the said reunion of the said two Pro- vinces, shall become vested in the Governor of the said Pro- vince of Canada ; and to authorize the Governor of the Pro- vince of Canada to assitjn, depute, substitute, and appoint any person or persons jointly and severally to be his deputy or deputies, within any part or parts of^ the I'rovince of Canada, to perform ami execute such of the powers, func- tions and autlioril' s, as he pleases. The statute of Canada, 4 and 5 Vic, 1841, ch. 24, Sec. 4S :— And be it declared and enacted that where the Queen's Majesty, or the Governor, I.ieutenant-Governor, or person administeriii); the government ot this Province for the time being, shall be pleaseil to i^xtend the Royal mercy to any offender convicted of any felony punishable with death or otherwise, and by warrant un<ler the Royal Sign Manuel, counter-signed by one of tlu^ principal Secretaries of State, or by warrant mnier the hand and seal at arms of such Governor, I.ieutenant-Governor, or person administering the government as aforesaid, shall grant to such offender either a free or a conditional pardon, the discharge of such otlender out of custody in case of a free pardon, and the per- formance of the <oudition in the case of a condition of par- don, shall have the effect of a pardon under the Great Seal. There your Lordships find what I said I would shew. I said 1 would shew you the e,\istence of the notion that convenience miglit be served by a con- current exercise of this prerogative, by the possi- bility, at any rate, of a concurrent exercise. There you find preserved that concurrent power in the Queen, presumably on account of the possible Imperial interests to which I have referred. Take our relations with the United States. On more than one occasion it has happened that Imperial intervention has taken place, intervention which may be called in a sense diplomatic, with reference to sentences imposed upon persons who had invaded the peace of the country ; notably in the case of the Fenian Raid, after which a very large number of persons, citizens of the United States, were con- victed, and severely sentenced; but on y^ry strong representations made by the Inif)erial authorities, their sentences were, within a brief sp.ice, com- muted by our Ministers, not perhaps very much to the taste of the people of Canada. Your Lordships recollect the comnitinioations which passed at an earlier period, iS3;-i.S38, with reference to the political crimes of those days. The Imperial prerogative, tlierefore, was maintained ; but not exclusively. The scheme, as I ask your Lordships to determine, wasthis. It may beimpor- tant to preserve the Imperial right to act where Imperial interests are concerned ; but in nine hun- dred and ninety-nine cases out of a thousand, no such interests can exist ; and wherever they do not exist, then the right is exclusively in the local authority ; and that authority is the Governor, Lieutenant-(k)vernor, or person administering the government of the I'rovince. Thus, you (ind an Act of Parliament at this early date of '41, recognizing tlie existence, in the Lieu- tenant-Governor of the Province, of the power to p-irdon, and providing that his action shotild have the effect of a pardon under the (ireat Seal, In the same year, ch. 35, sec. 6i : — And be it enacted that it shall be lawful for the yueen's Majc^sly, and for the Governor, I.i(nittfnant-Governor, or per- son administering the Goverinnent of the Province, to extend the Royal mercy to any person imprisoned by virtue of this Act, although he shall be imprisoned for imn-payment of money to some person other than the Crown. The Royal prerogative did not extend to taking away a private right ; but here is an Act which ex- tends to that case ; and how is the power given ? To the Queen's Majesty ; and also to the Governor, Lieutenant-( Governor, or person administering the Government. H.'\GARTv, C. J. — They kept up the same \f.ords down to the last Criminal Act of the Dominion. Cou.NSKL. — Yes, my Lord ; your Lordship sees you get the "Queen," and you get also the " Governor." Then comes the Consolidated Statute of Canada, 1859, ch. gg, sees. 112 and 113 : — The Queen's Majesty, or the Governor, may extend the Royal mercy to any person sentenced to imprisonment by virtue of any of the foregoing Criminal Acts, ahhongh he may be imprisoned for non-payiiu'nt of money to some party other than the Crown. ♦ * * When the Queen's Majesty, or the Governor, is pleased to extend the royal mercy to any offender convicted of a felony, then it goes on in the words of the section to which I have already referred. Then, the statute of the Dominion, 32 and 33 Vic, ch. 29 deals with it as the act of the Crown : — The Crown may extend the Royal nu^rcy to any person. When the Crown is pleased to extend the Royal mercy to any ofti'uder punishable with death, and so on. Then so late as 1887, ch. 181 : — When the Crown is pleased to extend the Royal mercy, and so on, and grant to such offender either a free or a conditional par- don, by warrant under the Royal Sign Manuel, counter-signed by one of the principal Secretaries of State, or by warrant under the hand and seal at arms of the Governor-General. Then again, ch. 181, sec. 40, Revised Statute of Canada : — The Crown may commute the sentence of death passed upon any person convictedof a capital crime to imprisonment 46 in the penitfintiary for life or for any term of years not less than two years, or to irnprisoiiiiuint in any otiii r jail or i)lac(! of ('(irilinctiM'iit for any iiiMicid not Uiss than two years, wiili or witlioiit li.ird labor, .'iiiil an inslrninciil niulrr ilic hand and seal at arms of the Governor (ieneial, dirlariiit; sncli roiri- nnitation of sentence of St.ite, i r of the imder Secretary of Slate, sh.ill Ini siifticiiMit authority, and so on ; and nothinj! in till' Act sliall in any manner limit or affect Her Majesty's Royal [irerojjativc! of mercy. There, yc: still get the notion of a double power. Then, of the Provincial Statutes I refer your Lordships to the Revised, ch. i, sec. 30 : — Where a peniiiiary penalty or a forfeiture is imposed for a controveiition of any Art. tneii if no other mode is prescribed for the recovery thereof the penalty or forfeiture shall he re- coverable with costs by civil action or proceeding at the suit of the Crown only, or of a |)riv.ite party sniim as wi^ll for the Crown as for himself, in any form alloweil in such case by the law of this Province, Ixfore a Court liavinji jurisdiction to the amount of the penalty in cases of civil contract, upon the evidence of one ciedible witness otli'r than the plaintift or party interested. If no other provision is made for tin; aiipropriation of tin- penalty or forfeiture, one-half theieof shall biMont; loihe Crown and the otlu'r half sli.ill bi^lom; to tlii^ private plaintift, if any then; he, and if there is none, the whole shill helont; to the Crown. Sec. 31 prescribes that there may be recovery upon indictment. Sec. 32 : — Any duty, penalty or sum of money, or the proceeds of any forfeiture which is by any. Act ^iven to the Crown, shall, if no oiher provision be made respecting it. lorm part of the con- solidated revenue fund of this Province and be accounted for and otherwise dealt with accordint;ly. Is that law ? Have we the right to do that ? Here is a penalty inflicted in pursiinnce of our so- called I'rovincial criminal jurisdiction; and it is provided that the fine shall form part of our con- solidated revenue fund. That is surely within our power. Then cannot we do what we will with our own money, which is part of our own consolidated revenue fund ? C'annot we decide to give back the money, or a part of it ; or to remit a portion which ought to be but has not yet been paid in to our consolidated revenue fund ? If the Legislature can do that, can it not authorize the Executive to do it ? Is not that clear ? And yet, that is just what this Act proposes, Sec. 33:— If any sum of the public money is l)y an Act appropriated for any service, or directed to he p.iid by the Lieutenant- Governor — then if no other provision is made respitctinn it, such sum shall he p.iyable under warrant of the I.ii'Utenant- Governor directed to the Treasurer of the I'rovince, out of the consolidatiul revtuiue fund. That surely is within our power. Yet my learned friends may perhaps complain that we are giving additional fimctions to the Lieutenant- (iovernor ! R, S. O. ch. 20, sees. 25 to 27 : — Whereas it is expedient that the li.teciitive Government should be empowered to relax the strictness of the laws relative to the collection of the revenue in cases where with- out such relaxation ureal inconvenience or Kreat hardship or injustice to individuals could not be avoided. Therefore, the Lieutenant-Governor, whenever he deems it right, and conducive to the public good, may remit any duty or toll payable to Her Majestv, imposed or authorized to be imposed by anv such Act, for any contravention of the laws relating to the collection of the revenue, or to the management of any public work producing tolls or revenue although any part of such forfeiture or penalty be given by law to the informer or prosecutor, or to any other person ; and such remission may be made by any general regulation or by any special order in any particular case, and may be total or partial, conditional or unconditional; and if con- ditional and the condition be not performed, the order made in the case shall be null and void, and all proceedings may be had and made. If tlie Lieiitcnani-Governor diret^ts that the whole or any part of any penalty impiised by any law riOating 10 the ri^venue be remitted or returned tcj the oficiider, such remission or return shall have the same effect ,ts a p.irdon has in tin: case of a criminal ofleuce,aiiit the oKeiice for which the penalty is incurred shall therc'aft.r have no legal etiect prejudicial to the party to whom the remission is granted. Her Majesty's .Altorni'y-Gener.il for Ontario, or other law officer, may sue for .iiid recovir in Her M.ijesiy's nanu' any penalty or forfeiture impc>s<rt by any l.iw ri^lating to the revenue before any Court or othiM' jiidlciil anihority before such penalty or forfeiture? is ri^cover.dile imdi r such l.iw, or m.iy iliryct the discontinnanci' of any anion for such penalty, by whom or in whose name soevei' the s.mu? has been brought, anil in such case tlii: whoh? of the penalty or for- feinire shall belong to Her Majesty for the pulilic use of the Province, unless the Lieutenant-Governor in ("oiincil allows, as he may if he sees fit, any portion thereof to the seizing officer, and so on. Then Revised Statute, ch. (jo, an Act respecting the remission of certain penalties ; sec. go : — Where ,1 pecuniary jieiLilty or forfeiture is iinposi'd by any Act of this Province, or by any lUher Act now enforced in this Province' within tin? legislative authority of this Pro- vince, the Court or Judgt? h.iving cognizanci! of the procc^ed- ings may at any time after the commeiK emi'iit thereof, remit in whole or in p.irt any sum of money by such .'\ct imposed as a penally or forfeiture on a convicted officer. There is a case in which it was thought fit to give the power o( remission to another than the l<I.\ecutive. HAc..\urv, C. J,— There was a singular process as regards escheats. The Court could reinit. C3oi;nsel — Yes, my Lord. Here you find the procedure for the attainment of justice perfected after the fashion the Legislature thought most appropriate to the purpose. Here they thought it was expedient to give to the judicial authority which had lieen concerned in applying the fine, and which, therefore, would be cognizant of all the cir- cumstances, and would act in a judicial spirit, the power of remitting and in effect of modifying the sentence. Have the Legislature that power ? Is not that exercising the prerogative of pardon ? What else is it but remission or commutation ? The Legislature surely could do that. If they could do that, then this Act is valid. Then the .\ct provides: — This Act shall not be held to give to a iiolice magistrate or justice of the peace the authority Ikmimii mentioned. The Lieuten.int-Ciovernor in (Council shall also have pow- er at any lime to remit any such piMialty or forfeiture in whole or in part, unless the same is imposec'. by the Act re- spiicting tilt! Legislative .\ssembly, (>r by some Act respeciing election of members of Legisl.itivi' Assembly, or is recover- able in respi^ct of any offence coimnitted in connection with an election of a member of the s.iid Assembly, Vor obvious political reasons it was not thought fit that an l"^\ecutive formed of one political party, and controlling the councils of the (iovernment, should be permitted to remit sentences in respect of political offences; and so the power as to that is not granted. That series of Provincial Legislation at once illustrates and corroborates the theory which I advance as applicable to the case. Here, we are a Province with large powers, a political organiza- tion, possessing in many respects the characteris- tics of an independent State, and exercising sover- eign power over a large portion of those subjects on which depend the happiness, the peace, the prosperity of the inhabitants. Amongst these is the subject of making and eiiforcing by fine, penalty or imprisonment laws on a vast range of matters. A part of the machinery for enforcing and dealing with such laws, is that providing for the remission of the sentence, in cases in which justice or expedi- 47 ency may require such remission. That part of the whole power, therefore, appertains to the Province and must i)e aihninislered hy tin; Ministers of the Province, under those responsibilities lo its people, which are the fundamental safeguarils of liberty under the ISritish Constitution. And now, my Lords, I close the arguments which have occurred to me upon ;i case, which has led us into paths somewhat imwonted in a Court of Law ; yet are they paths which we must traverse when the judiciary is called to the arduous and exalted oflice of interpreting the constitution of the country. I am glad to believe that the relevant principles of interpretation are pl.iin and clear; and that they are such as have been stated, with th(! terse- uesa and lucidity of which lie is a master, by the learned Chancellor in the judj;ment below. I trust that your Lordships will be able to concur in that judgment ; to aj'ree th.it its reasoning applies to and governs the disposition of tlie cause ; and thus to close, so far as the highest Court of this I'rovince can close it, the controversy which has been waged for so many years on the relative positi(m of the Provinces and the Dominion of Canada, by alfirming that the terms of the H. N. A. Act grant, and its effective operation involves, the same ample, adequate and sovereign measure of authority in the executive as has, under the decisions of our highest Imperial Court, been ac- corded in the legislative department of the Pro- vincial Constitution.