CIHM Microfiche Series (l\/lonographs) ICIVIH Collection de microfiches (monographies) H Canadiin Institute for Historical Microroproductions /Institut Canadian da microreproductions historiquas Technical and Bibliographic Notes / Notes technique et bibllographiques The Institute has attempted to obtain the best original copy available for filming. Features of this copy which may be bibliographically unique, which may alter any of the images in the reproduction, or which may significantly change the usual method of filming are checked below. D D D D Coloured covers / Couverture de couleur I ] Covers damaged / ' — ' Couverture endommagee I I Covers restored and/or laminated / ' — ' Couverture restrjr6e et/ou pelilculee I ] Cover title missing / Le titre de couverture mar>que I I Coloured maps / Cartes geographiques en couleur j I Coloured ink (i.e. other than blue or black) / ' — Encre de couleur (i.e. autre que bleue ou noire) I I Coloured plates and/or illustrations / Planches et/ou illustrations en couleur Bound with other material / Relie avec d'autres documents Only edition available / Seule edition disponible Tight binding may cause shadows or distortion along interior margin / La reliure serree peut causer de I'ombre ou de la distorsion le long de la marge interieure. Blank leaves added during restorations may appear within the text. Whenever possible, these have been omitted ft-om filming / II se peut que certaines pages blanches ajoutdes tors d'une restauration apparaissent dans le texte, mais, k}rsque cela dtait possible, ces pages n'ont pas 6te film^es. L'Institut a mtcrofilme le meilleur examplaire qu'il lui a ete possible de se procurer. Les details de cet exem- plaire qui sont peut-etre uniques du point de vue bibli- ographique, qui peuvent modifier une image reproduite, ou qui peuvent exiger une modifications dans la meth- ode nomnale de filmage sont Indlques ci-dessous. I I Coloured pages / Pages de couleur I [ Pages damaged / Pages endommagees I j Pages restored and/or laminated / ' — ' Pages restaurees et/ou pelliculees 1^ Pages discoloured, stained or foxed / ' — ' Pages d^colorees, tachetees ou piquees I I Pages detached / Pages d6tach6es r^ Showthrough /Transparerwe I I Quality of print varies / ' — ' QuaWe inegale de Timpression I I Includes supplementary material / ' — ' Comprend du materiel supplementaire I I Pages wholly or partially obscured by errata ' — ' slips, tissues, etc., have been refilmed to ensure the best possible image / Les pages totalement ou partiellement obscurcies par un feuillet d'errata, une pelure, etc., ont 6te filmees a nouveau de fagon a obtenir la metlleure image possible. I I Opposing pages with varying colouration or ' — ' discotou rations are filmed twice to ensure the best possible image / Les pages s'opposant ayant des colorations variables ou des decol- orations sont filmees deux fois atln d'obtenir la meilleur image possible. n Additional comments / CommentaJres supplementaires: This item is f ilmtd at the reduction ratio cherkad below/ Ce document est filmt au laux de reduction indiqui ci-dessous. lOX MX 18X 22X 26 X XX J 12X 20X 24 X Th« copy filmtd h«r« hai ba«n raproducad thinki to tha ganarotity of: National Library of Canada L'aiamplaira lUmt fut raproduit grlca 1 la g*n«roaiU da; Bibllotheque natlonale du Canada Tha imaga* appaaring hara ara tha baat quality poaaibia conaidaring tha condition and iagibility of tha original copy and in kaaping with tha filming contract apacificationa. Lat imagaa auivantaa ont tit raproduitai avac la plua grand toin. compta tanu da la condiiion at da la nattat* da I'axampiaira filma, at an conformitt avac laa conditiona du contrat da filmaga. Original copiaa in printad paper covara ara fllmad baginning with tha front eovar and anding on tha laat paga with a printad or illuatratad impraa- aion, or tha back covar whan appropriala. All othar original copiaa ara filmad baginning on tha first paga with a printad or illuatratad impraa- aion, and anding on tha laat paga with a printad or illuatratad impraaaion. Laa axamplairaa originaux dont la couvartura an papiar aat imprimaa sont filmte an commancant par la pramiar plat at an tarnKinant aoit par la darnitra paga qui compona una amprainta d'impraaaion ou d'illuatration, aoit par la lacond plat, aalon la eaa. Tous laa autraa axamt.''i»i;kss TlIK llONOUAlil.K WIM.IA.M KKNWK '; UIDDKl, r M fi , KTI .11- TunnvTo (.llvri, |.; ,,|, IMK Kl\.;\ 1U:\. 11 Div'N. II. C. .1.. Om.) KKilll'KKNTll ANNUM. SESSION UnVA STATK MAI! ASSOC lATIO.V I'KDAll liAI'ins. IcnVA. .H'M-; -M. 11112 THE CONSTITLTIONN ( y TMIO I'XITKD STATKS AND CANADA The other d«>, in « train leavii-g Toronto I o' erhear.1 «n e»:-neit voiee uyin^ -Hut that .•aii't h.. oon.titu'ional-the Sopreme Court will up*t that." I at „u,-.. «id to ,.iv«elf. lh«t I. an Awerinin .penkinK'-for in my anaociation with .mzen. of thi. favoured land. I hav,. loun.l that « great part of their time an : the time of their eourt. i. taken up in the di.- cuMion of the constitutionality or unconatitutionality of enaet- menta of their legialative hodiea. In Canada, on the other hand, we very seldom find it neeesaary to mention the Constitution at all. It i. a somewhat eurious circumstance that two neighliourini, peoples of the same origin the same tongue and religion, kindred aspirations and identical views of justice and right should differ so much in their concep- tion of a constitution; it is I think unparallele.1 in history In the ultimate analysis the difference arises from the fact that the father, of this Union of States knew how to write; and that having the power, they had that desire to reduce their views to a written form which characterizes the philosopher. In the mother country, the philosophic students of the proh- lema of politics gave written expression from time to time to their views also-but these students differed from those philosophers in that they had no power to cause their writing to be adopted as a binding document. No more profound studies have ever been made in the theory of government and concerning the bal- ance of function of its various departments than those of English- men-but Englishmen could give them only as speculations, they had not the power to have t -ir theories adopted by the Nation at large. The fathers of this Nation, when they had drawn from English and other sources what they conceived to be the true principles upon which government should be carried on, went further and I i..n,ml„t,.,| ,h..,r thfoh,., i„ „ ,|,„.„„„,„ ,>„„„.,, „|„, ,„„,.,, .i,.,, ^ "■"' <>"'y l»"l '!"■ r-rtu..,. I„ h„v,. fl„„ .|,„.„„„.,„ ,„„„, ,,i„,|i "P..M n., u„l.v, I,,. N„,i,,,, ,,. i, ,,,,.„ ,.,iM,.,l. 1,,,, ,,!,, ,,,„,,, J .Nati...,~»,„.„k,nK u.'M.Tall.v -,„ i, „„„ ,„ ,„. ,„ „ „,, ,„. ,.„,,, .\n,l .1,,, „ „l,, ,1,,. «„r,l. ■v„„.,i„„i„„- ,„„| ■■,.„„.,it,„i„„„|" iNiv,. MII..I, ,|i(r,.r,-MI .omiotalioiji. in !'„. i,v uiilri... In III,. r„il,.,l SNitr, ,!„■ CnnMtiluti,,,, i» „ vvritt,.,, ,l,„.MM».„t ""''""»-• "'""> l.'l>.-rK ,,,.,1 „„r,l, .,„„i „„,vihi.,K «l,i,.|, i, in a.-"r,l »,lh tlial ,l,«-u„„.|,t i, ,.„„„i„„i„„„i. |„ |.;„^|„„,1 ih,. < un,t„„nn„ „ ,1„. ,,^n;n„. „r ,1 ,n. „r I.™ v„„,.. „,„1 „„. -rt.nn |,r,M,.„,l,., „|,.,n »l,i,.l, ,|„. „«.„;„ ,„■ „,„„ ,,„„ , „ ^^^ ''"■'■"'"'■'■ »'"•"''' '"•■ "'l'"i.""..-n..l. For ,.x,„ i„ ,|„,„ry ,|„ Sm,.n.,«„ ,„. ,|,„ ri«l„ , . r,.fu„. ,„ „»„„„, „. „ i,,,, „.,,i,,h ,,„. p.."... I....I, ll„u.,.H „f r;„.|i„„„.„,. N„ S,.v..n.iK„ »imv Que.- An.,.. I,„„ v,.„n,r,.,l .„ ,1 i,_„„.i ,|,e „,,„re.i<.«l ri^t i. .I,«i "» tin,,.,, Ann,. I„.n.,.ir. No SoverH^n wm.1,1 now ,ir,.a,n of »-tMnK up hH will „Kain,t that of lii. I'arliament-io ,lo »> "■'""'' "1'. •"""•i"''i""«l- '"" rher,. „r.. ,„„n,- part, nf the I institution l.y m. rn,.«n» m wdl-wttld. If Hv,. warn ai{n a »tal,..srn„n „r liiwy.r l,a,l l„...n ».k,.,l uliotluT th. II„uk „f rid. .-..uld n.j..,.t a l,u,lK,.t p„™ed by the C.muu.n.. he would have anHw. .«!-•■ The House of Lord, no douht can, hut it will not " It «■„ thought hy many, if not all. that ,u,li „n exen^iae of power hy the lou.. of Lord, would he „a uneon.titutional a, he refu«. ot the Sovereign to a»,ent to a hill. And yet wo know that the House ol Lords ,lid recently „s«.rt jii.t aueh a power- ami we hav,. not yet heard the last of the result,. Apparently the last hKht ot entrenehed privilege in Ilritain a«ain« the in sistent demands of demoeratie fn-em-.n ha. just been fought. -titufonal? the answer eannot he Riven by referenee to a doeu- ment an,l ,f neees^iry to a eourt to determine the meaning of the doeument-but it i. the electorate who are asked for the answer. "Littera seripta manet"; the American mav say, "I stand upon the letter of the Constitution : lot the heathen ra^e and the people imagine a vain thing." And does all this not show that the fathers „f the Union had not eonhdence in the wiriom and ju,tiee of the people-the elec- ra.,., U,...v „,.r, ,„„ ,.,„„,„, ,„ |..,„,,. ,„ ,|,^ ""•'• "■";•"'";■»" ""■ r - - ..n,r.v ,„ „.,„„ ,l„.v ,h,.l •"■";■'"• "''•"■■■i»-i-. -in.M,ii,. „m, V,,.,". ,;„;, c::^? '■■"■ ■'• -'"" -.i...,...,;,,,, ..,■„:,■.,;: pt»t.- "1 A„„.n.„ ,m. K„„.,.„,.,|. i„ ,,„rt „„|, ,,, ,|„. |„.„i,. "'-., ...,.,..„ ,,, „,..,„.„,v,... ,„„ „. , ,i.„^„ , 2 liiiMil iin.l viii,-,. i.r Mil' ilniil. ,, -V,"' "'.'" '" ' '"'•' •' "'»" < '■<■ !.■ :. I...„... .„. • """ """■'"" "• i" " ""V.r, ,„ ,„• ,„„ ,„„| „,„ ,„• ,„.,„ >M.or..v,.r tl„.,v ,» „ „rilt,.n ( nn.tili.ti,,,, limiting ,1,.. ,„,„„„ ,„; ''■",'"':""■;■ "'"' '•^•"■"li- -IHT,. , , ,„• , .., i, " ":;;;''"• '" ■■'■■ •>■ • <"'"'""< - .ih .in,. ,., „„i,„. , " ' '",""" '" ■• " 'li'l"".-.!,,.. .ril,„„„l ,.„„l,l ,„„ „,.|l "«;n power u,„l,.,. „ „n.t,.n Cnn-li,,,,;,,,, ,,v I ,„n. „r Kx,,.' "<.v. ..,,.,.„« ,,r„„n.v. M,.it.„.ror „l,i,.|, ,1„. A, „,o.S„,„„ ,.„„ ,„,„. .. '" "'•' '■" '''"•• '"■"""<■ '!"■ IMrl nt i, „h, „.,v ,V,.; I no pmviT ot |-,wli„„„.„| i„ », tr„„»,.,.n,i,.nt ,„„1 „|„„h,t,. that it -■..nnot .,.. ,.„„Hn„„, .,„„ for ,.„,.„.« „r p,.™.„„. within 1 l-"un"•■ "'""k 1 «t ™ affirm.,, hy ,h,> J„.|i,.ia, f,,,,,,,,,,,,., „,■ ,„„ ,.,],, ^^^„„ , ' th, ntimat,. app,.lla„. trihnnal in ,)„. K,„pir„. k|„ ,„,^ j,/ V. Cohalf (IfMW.. IH o. U. ,i. 27.-,, „l p. 27!). ••It is a fumlaraental prin.ipl. with English lawv.n, that ri """r ■.''"•^■' "'■''"'""■■ "'^" '^'■' "f ''»'li«'"™» <•«.. Ho no wmnp. though ,t ,„ay do sevral things that look pretty odd" 2 Mod. m „ 6S7, 688. Sir Kdward ('ok,, who advanc-ed th,. propoa,t,„n ,n Ronha.n's ,.„h,.. 8 Co. 118 (a, that "The common law will control Acta of Parliament, and «ime,imea ad- judge them to be utterly void" was properly rebuked by Lord Ellesraere, Note Id Thomas & Eraser's edit, of Coke's Rep., Vol. 4, pp. 376, 377 (see. too, what Coke says as to the Acts of Parlia- ment against natural equity in Co. Litt, sec. 212). "This dictum once had a real meaning but it never received systematic ju- dicial sanction and is now obsolete. ... A modern judge would never listen to a barrister who argued that an Act of Parliament was invalid because it was immoral or because it went beyond the liiriits of parliamentary authority." Dicey's Law of the Constitution, 7th Ed., p. 59, note (1), pp. 60, 61. The words of the Legislature are the text of the law and must be obeyed", per Hamilton. .J. (liilli, 1 K. B. at p. 1101. Nor is there any delinite llie of decisions in America before the lievolution in the opposite sense. No doubt the Colonial Courts in considering the Acts of Par- liament of the mother country strove to make what they con- sidered to i-e right and justice override certain of the statutory provisions. But it cannot, I think, be said that any court in the English Colonies went so far as to say that there was a limit set to the power of the home Parliairient by any natural or inherent right. The South Carolina case of Bowman v. Jliddleton (1792), 1 Bay 252, did, indeed, decide that an act of the Assembly passed in 1712, which purported to transfer the fee in certain land from the heir-at-law to another, was null and void "as it was against common right as well as against Magna Charta to take away the freehold of one man and vest it in another. ' ' But this decision by no means Impugned the power of the home Parliament to do what the Colonial Assembly had tried to do; and is simply in substance a decision that the Colonial Assembly had not the power to repeal Magna Charta. No other case went so far as to declare any statutes invalid as against natural right— although, indeed, there are many obiter dicta which indicate that certain very learned judges held the opinion attributed to Coke. In the case of Winthrop v. Lcoh- niere, in 1727-8 mentioned in Thayer, pp. 34 sqq., their Lord- ships of the Privy Council advised His .Majesty to declare an act of the Assembly of the Colony of Connecticut in respect of land of intestates null and void as against the common law of England, but that was to be an exercise of royal prerogative. The act (M-:n, Vic. f. H) which constituted the Dominion of Canada has in the preamble the following :—" Whereas the Provinces of Canada, Nova Scotia, and New Brunswick liave expressed their desire to be federally united into one Dominion under the Crown of the United Kingdoms of Great Britain and Ireland, with a constitution similar in principle to that of the United Kingdom". This preamble correctly seta out the ,n. He may, indeed, if a new election be Jan ed ^ra su«.eed m obta.ning at such election a majority in the House o Commons: ,f so he is s«yed-b„t he must haye the House at h,s back or step out and make room for another So in the Proyinces in like manner. 1 shall now giye a few examples to shew how in practi,,. the written Constitutions in the United States haye hampered the free action ol legislation, with illustrations from our legislation, The Pederal Constitution provides that no State shall pass any law impairing the obligation of contracts-this provision ha ad tar-reaching elTects. A charter granted for a college e g i^ considered a contract. For example, in 1769 the King, Ceo'rge HI, granted to the Trustees of Dartmouth College in New n t tmr \T1: i ■--P""'- - a private' eharitab,: h State fV^ Revolution-in 1816-the Legislature of he State of New Hampshire passed an act taking away from the trustees the government ol this college and vesting iT he executive of the State-in other words changing the college from TriZ '° " "'*^ ''"'"'"*'""• ^"^ "''' """^ eontin^^g th" trustees as a corporation as Trustees of Dartmouth University purported to form a new body called a Board of Oye™eer of «-hom the President of the Senate and the Speaker of rHouse of Representatives of New Hampshire, the Gove^or and Lieuten ant-Covernor of Vermont, were ex-officio members-and To h^ Board of Overseers was given the power of confirming or vetoing ?:^;' I"^ 'T'^ ^^""-« '" '"^ appointment a'nd remola! tin oTir • "'? "• "'"' P""""^'" "^''"^ th^ determina- tion of their salaries, the establishment of professorships, the erection of new buildings, etc. The Legislature later on in th same year passed another act making it an offence for any one to act as president, professor, etc., except in conformity with the act just named One Woodward had been Secretary-Treasurer of the corporation before the passing of the acts, but he appr,' en.ly took s.des ,v,th the Legislature (since l,e was removed by the Trustees of Dartmouth College before the last aet) and he was r,..appointed by the Trustees of Dartmouth University organ- ise,.! under the new acts. The old board bro„ght an action ag,.nst h.m tor takmg possession of the books of their records. It will be seen that the simple question was: Had the new cor- poration of Trustees of Dartmouth University any power? And that depended upon wl„.ther the acts of the i;gislature were alid The Supre.ne Court of New Ilampshiro decided that the Legislature had not exceeded its authority, and so dismissed the action: and an appeal was taken to the Supreme Court of the ?' .''IT' '^'" """'-■ ''"'■ ""-' "''' '"•"■■J "■''« '"■*-"«''l !»• the celebrated Daniel Webster and the Wupreme Court decided' that the charter was a contract. The Chief .lusti..., the «cll-k„own John Marshall, says -It can require no argument to prove that the circumstances of this case constitute a contract.- Then the court proceeded to hold that this charter was a contract of the kind protected by the Constitution, and that the Legislature had no right to change it in any miv. In I'pper Canada a Roy'-I ciiartcr was obtained from (Jeorge \ m 82, or the University of King's College at or near the own 01 York (now Toronto., It contained provisions that the (.overnor should be Chancellor, the Anglican Bishop of Quebec .shouUi be the Visitor and that the Archdeacon of York should be I resident by virtue of their offices, that all members of the Council should be members of the Church of England and Ire- land, and that students in divinity must also take the same oaths as were required at Cxford, The Legislature of Upper Canada in 18a7 took away the visitorship from the liisliop the presidency from the Archdeacon an,l alwlishcl all n.li-ious tests whatsoever. That, however, was nothing to what was done twelve vcars ater-in 1849 much of the charter ,vas repealed and amended. he whole constitution was changed, the name became -The niversity of Toronto", the Chancellor elective, and he was not to la. an c..clesiastic. a minister of any faith. The President was to he appointed by the Provincial Administration, th,. facultv of divinity was abolished, a Senate formed. an,l the property of the L niversity vested in a new board. No donbt King's College »a6 a .mall eolleRe and ha.l thosr who loved her h„t no dramatic elo<|uenee even of a Daniel Webster would have in- duoed a Canadian eoiirt to hold that the Legislature had ex- ceeded its powers in such legislation. And many such instances are to be found, for example in New Brunswick-" the Univer sity of New Brunswi,.k"_in Nov,, Scotia, and elsewhere. So i„ the Dominion, but the present year, the relation of the Queen s University to the Presbyterian Ciuirch has been radically chan^'cd. ^ In the provision that no State may pass a law mpairing the obligation of contra.ts, ••contracts" is considers a verv ex- tensive and comprehensive term. When the State of Georgia had granted certain land, this grant was called a '•contract" by the Supreme Court (Fletcher v. iVck, 6 Cranch 87. 136) and an act of the State Legislature annulling the grant upon the- ex- pressed ground of fraud was held to be unconstitutional. In Canada no one doubts that the decision would have been the other way. In 1837 and 3899 certain water rights were given on and near the Kaministiquia River to one J., these were in 1902 taken away from him and restored in 1904— all bv the Pro"ince of Ontario. After a State has agreed to grant lands to a companv upon conditions, and the grantee has fulfilled the conditions" of the grant and so earned the lands, it is not competent to pass further legislation that the lands shall not be ..onveyed to the company except upon a further condition: De Oroff v. St Paul &e R R f ,;f J*' n"L"*- '" °''*°"''' " '''''■•'"'" ™"'P'"'y '■l«i'°"l to ha^-^ fulhlled all the conditions necessary under the statute to entitle it to the grant of certain mineral rights. The Oovernment disputed the right of the eomj.any : and made a sale of these rights to an- other company. An action was brought, hut pending the action legislation wa« passed declaring the latter companv entitled The action oame on for trial before myself and I declined to pass upon the question whether the requirements of the statute had been fulfilled by the original company, as I considered this quite immaterial. 7 held that even supposing the first-named company owned the land, the Legislature had the power to take it away «.d give It to another. This view of the law was approved bv the Court of Appeal, and the Judicial Committee of the Privi- Council, The following language was used : "If it Ix- that the plaintiffs acquire'! any rights ... the Legislature had the power to take them away. The prohibition •Thou Shalt net steal' has no legal foree upon the sovereign hody": Florence v. Cobalt (HH)8). IS (). L. H. 275. This de- cision made some eominotion : and it was attacked by some who should have known letter. They based their attack chieHy on the provisions of Magna Charta-not knowing or not appre- ciating that a British Legislature has the power to repeal even Magna Charta so far as it affects the territory subject to such Legislature-and, indeed, most of Magna Charta is repealed in Ontario: Smith v. London (1909), 20 O. L. K. at pp. 140, 141. An agreement by a State Legislature to bind its owk hands by a grant so as to preclude it from exercising its sovereignty in that regard in the future has l>een held by the Supreme Court to be valid in certain cases of taxation and exclusive privileges. Whether the police power can be ti'us alienated is a different and a difficult question. But in Canada, "the Legislature has no pow- er to control by anticipation the actions of any future Legislature or of itself": Smith v. London (1900), 20 O. L. R. at p. 142. I have already indicated the powers of a Canadian Legislature in respect of private property. It may be said broadly that a Provincial Parliament has the power to say that Blaekacre, now the property of A, shall hereafter be the property of B— and so it will be— and that without the necessity of making corapensa- tion. The whole learning as to eminent domain is of no interest in Canada. The Legislature may, indeed, direct compensation to be paid ; but that is in no sense necessary. In many jurisdictions, e. g., New York, Michigan, Alabama it has been considered that the State cannot authorize owners' of mill-pnvileges to expropriate the land above to increase the head. In Ontario, we have long had such legislation, and no one has doubted its validity. Compensation is, indeed, directed to be paid: but that is not at all necessary for the validity of the statute. A statute of New York authorized any person to take into his custody any animal trespassing upon his lands and give notice to the justice or a commissioner of highways of the town, who should proceed to oell the animal after posting notices. This was held invalid in Rockwell v. Nearny, .35 N. Y. 307. In Ontario take itt the nthli " ." " ''"~' ™"' P'"' ""■• '■" ""y "ther ' , ,," "• "■." P"""''" pound .,r r,:tain it, giving noti™ to the elerk o the ,nun.e,pa,ity. After oert.in notiee, the an ,n«I may t »>ld If not redeemed op replevin,,!. The State Legislature .annot authorize the eo,u,,ul8orv et .ngu,ahment of ground rent, on p„,.,„.,„t „f a Z^^r^'. and, «h ch had heen m the p„H,os»i„n and ownership of '•Pro Trea.,r.v h. the «.::,„::; "o'f i"!:.:^:"^!;:; t ™mra.s„oner,. Vhis. i„de,.d, i, not unlike "eminent d main • -ee the act i, p„a,„„ ,,, ..,„„ „„„„„,„,,„, .n/h^ ~„' •h« peope" and there waa "no reasonable hope of'^'LePrl pnetors "voluntarily selling their Township lands ,„ the GoT ernment at moderate prices." ""us to tne Oo>- In Quehe,. from the first, the l„„d w„s held in seigni,„-ity the e,gn,or generally a noble, had under him the ceS. nauts, "halutanls" they ™|led themselves: the habUn eens,ta.re (tenant-the words are not quite svnonvmou "wa under many feudal obligations, fa.niliar to reader, of Black « on.._, ,r e.,ample, he was bound ,„ take his grain Z be grm,nd at .ho se,gn,or-s „,il|, and to pay for sueh grinding. I, heTnt ail the same. And his punishment might he even more severe for in one recorded judgment, a habitant who took gra ITo another mill than his seignior's was decreed to forfeif tothe eignior not only the grain but also the vehicle in ^1 t ,« '■arried If « habitant, being the feudal inferior desired to T pose o the land which he held, he was obliged oTay s^^ a antial part of the purchase money to the sefgnior. and wo^' the se„„,„ might himself take the land within forty daya of T' ,10/en of those caught in seigniorial waters- wnoH .„a . •nm be taken from his land by the sei^nt'.o bu d or'r ^ luanor-house, church or mill. Some few seigniors had airi Id 1854 th,. then Province of Canada directed the value of all iTX "' ""• «"^""- '" ^ """".ined by ,.„,„,„i„i„„;„ appotn ed l>y the 0„vern„r, and „p„„ tluir report l>ei„« Mle,l and notiee thereof publi.hed in the Omeial 0„,.ette, the habitant T "'iTf ,".,"" ''""'"• ""■■ ''""'P' "'" «'"' .'■-"■•ly rent, an.l hereatter held I„h la.,d in /„„„:.„,.„ r„0-nV,._at hia option he iririfiit pay a lump huiu onee for all In tin. i„,tanee .,11 the feudal duties were turned into „ „,o„ey pa n, ,. . ,ndeed u„le» ,|,e „.„„„, „„„ „ ,,„ , ^J No me doubta that whe e Legislature said that a lun,,, aura m Kit be paul mHtead of the r,„h cunMu.; , it «a, nerfe, Mv vilhd leKislntion. ' ■ In i;,e Imperial A.-t of 186!<. hy which the Irish fhnnh «„a d sestabhshd. there „a, a provision taking a«„v all ri^ht of a.lvowsm, or power of appoint.nent to a ,.hur,-h. SuW, riJl.t be eoine., effeet.v,. only „, ,.ert„in-H,r rather uncertain-intervals- hut the arl,a„u.nl took it away entirely and directed the former owner ,t he applied f„r compensation within three vears to be paid a Imnp sunt fixed by ,-onm,isaio„crs : see Frcwen v Prew.T (I810I. I,. |{, 1(1 Cli, ^\|| (;,„ In the l-nited States it is said the Legislature cannot vali,i„te an ,nval,d trust or wilh Hilliard v. Paul. 10 Pa. 81. .m. or ^-ive latal absolutely to one who under the will received it und,T a restraint agra.n.t alienation: Spink v. Brown. 61 Pa .St ■i27- Alter , Appeal. 67 Pa. St. 341. In Ontario .Mr, floodhueljft a per eety val d will the residuary estate ,0 acun.ulate during the I, etuue o Ins wulow. and directed that ir any of his children died dunng the lifetime of the widow, their c-hildren shoul.l take their parents share. This did not suit the children of the de- cedent: fl.ey wanted their share at once and thev executed a deed "hereby ea.-li of them was to have his share at „nce_in other «o.da they tried to take away the possibility which the will ere- ated in favour of grandchildren. The Legislature in 1871 de- clared the deed valid-and the court was forced to uphold the ran«.ct,on: Re Goodhue (1872), 19 Gr. .366. The court d!d not douot the power of the Legislature to pa.ss statiues wherein from oversight or any other cause provisions should be insertd of an ob,,eet.„nable character, such as the deprivation of innocent parties of actual or possible interest by retroactive legislation " l)rain«K,. „t uKriculhinil landa aiTorw tlir lnnil> of othir. in a lakinif of private property for private uw and in violation of the Koiirtpcnlh Arm-nilminl : !(.■ Tiithill, 16:1 N. V. l.Tl, 4!) L. H. A. 7HI. Wp liavc a whole .erica of neta nllowiuK tliia verv thinir anil no Foiirteentli Amendiiiont atamla in the way. Not far removed from the right of property eornea the right 'o hrinu an action. It ia aaid that Congreaa ha« no power to protect i)artie» aaaiiminR to act under the authority of the central (Tovcrninent diirinR the civil war hy deprivinif persons who had l>een illeKally arrcated of all redreaa in the courts: Oriffln v. Wilcox. 21 Ind. .'170 ; Johnson v. Jury, 44 111. 142. The Act of ('onirress providing "that any order of the Presi- dent or under his authority, made at nnv time iluring the present rehellion, shall he a def-^nce in all courts to any action or prose- cution pending, or to commence for any search, seizure, arrest, or impriaonment, made, done or committed . . . ■' was, ac. eonlingly, held to he invalid. In Canada we have had statutes of indemnity, e. g., in 18.18, after the "Rehellion" an act was passed (1 Vic, e. 12) which re- cited that before and during the "insurrection" it became nec- essary for Justices of the IVf e, officers of the militia and others in authority in the Province, and also for loyal subjects, to ap- prehend p rsons charged or suspected of joining in the insur- rection. Ti.e act then pi.ivided that all proceedings brought for such acts s'lould be void, and the persons who had committed them indemuined-all such proceedings were to be stayed, and If the plaintiffs went on they should be liable for double costs No one had the slightest idea that this act was not perfectly valid. So in Ireland, a similar act was passed after the Rehellion of 1798: and also in Cape Colony in 1836, 1847 and 185,3 • in Ceylon in 1848 ^ in St. Vincent in 1862 and in New Zealand in 1865 and 1867. And in Jamaica after the Rebellion of 1865. the Legislature passed an act of indemnity which had the effect of preventing the prosecution of actions against Governor Eyre. It is indeed, said that the people of a State, by amendment of their Constitution, may validly take away rights of action and other rights not theieby imposing a punishment or impairing the obligation of a contract. This was done by the State of Missouri 17 ond olhi-ra: nil riuhl« of n. tiim fur anytliind cloni' durinK the »»r hy Federal or Stut" troupii wi'rf takrii uway : Dupmin v. Hlii'ti'l 41 .Mo. 1H4; 8 Wall. 645, Some of the differro l».tw«.ii tin- Hvii coiintrio depi-nd iipiin a prinripli' to wtiifli the I'ourts in the I'nlti'd Stnten pay much re »pect— the principle of eipial ri(jht». Om' judKe exelaiiiw "Can it b« aiippoHed r.ir „,„nent that if the Leifinlutiire ahoiil.l paw a general law ijr .M a section by way of proviso that it should never he eonatrueil to have any operation or etTeet upon the . . rights, etc., of A. L. or J. O., aueh a provision would receive the sanction or even the eountenan"e of a court of law?" Lcivis v. Webb, 3 ,Mo. 326. The nonunion Act of 1!I03, 3 Kdw, VII, c. 21, gives juris- diction to the K.xc-hc(iucr Court nf Canada to order the side of aLy railway at the instance of the Mininter of Railways, or any creditor, appoint a rcc'eiver, etc.. but "Sec. 8 of this Act shall not apply to or authorize proceedings against the C. 0. Hail- way ..." While in cases of succession duties an arbitrary statutory ex. emption is sustainable: State v. Furncll, 3!) L. li. A. 170, if such an arbitrary exemption is applied ..iily to estates lower in value while those which are larger have no exemption at all, this is void and invalidates the whole statute: State v. Ferris, 53 Ohio St. 34 : 30 L. R. A. 218— but this seems to be doubted in other courts : Tennessee and Massachusetts, 26 L. R. A. 259; 28 L. R. A. 178. In Ontario, all estates under ten thousand ilollars are absolutely exempt— as are all passing to certain relatives under one hundred thousand dollars — and the larger ones have no exemption. A statute of a State providing for service upon the agent of a non-resident doing business in the State has been held to be void : Cabanne v. Grtf, 92 N. W. 461. In Ontario, every non-provincial company before procuring a license nuist have an agent within Ontario upon whom service may be made : and every person who within Ontario transacts or carries on any of the business or any business for any corporation whose chief place of business is without Ontario, shall for the purpose of being served "with writ of summons" be deemed the agent thereof: Con. Rule 159 (b). A statute attempting to restrict the right of banki. 'i IKPralion. it Iwd : HUtc v. Scungal, 15 L. H. A. 474 , 44 Am. 81. T.'ili. althiiiiKli upparently tlir rentri.tion i> (To'mI if thi' huiincM !»• iiiHiirmii-.', at leant in I'piiM.vlvania : Coiiitnou»i'«;tli v. Vroo- rimu. Iti4 Pa. .lUB^ ur. I.. II. A. 'iM. Uy the Hominion Act, K. 8. C. ( l!H)8i f. ail, Seen., 156, 157, it in provided tliat every one who uw» or amiiruei tlie title nt "hank", "liankinu cmnpany", "liaukinK lii>iiw ', "hankinu a>{ aiithori/.'d to do no Ja (fiiill- of an offence nnderinK m lialile to a line of one thouiiand dolliira, or iin- (iiiwiniiiei, r live ,vi'ar». or iiotli. And only in.-orporaled cora- paniea are eliuiWe for autliorization. In tile I'liiied Stales, it weriiK tlial an aet rei|uiring penoni piiyinii U-M ilian IwcntyHve dollam in taxes to pay a liecna.- fee »ill !„• li,.|d l,a,l ; State v. .Mileliell, .Vl Atl. K(*7. And a reifulation limiting to tranaientu only requirement of a li.'enae ia e(piall> "' ■'ose. the iTi'ation of free scholarships and allow'ances to needy students is not, even though these should he granted after public and competitive examination: State v. Switzer. 143 Jld. 287. We would have no diffleidty in such a case. In Illinois and New Hampshire it seems that owners of prop- eity cannot he eooipclh.il to keep the 8idc'.v;dl; opposite their property clear of .snow; Cridley v. lilooioincton, 88 III. .1.54. State v. Jackiuau, 6!) N. II. 318; 44 Pa. 438. But in Toronto many a citizen has found his way to the police court because he has neglected to obey an ordinance to that effect. A niilro»il ii|i|>iirciilly i>anni)t. with .vi.u. Ih' iniili' liahh' for •toi'k killnl hy it In tln' »liiM'n(i' of niirliii.'iii n ita part. .I.tivin V. Union l>«e. H. Co.. i\ I'li, Id-p. propi.rtv of the niilwiiv iiml in Icillnl or injured hy a train, the railway oiiiat pay ■ .ihw tli y pnive that the atoek got at large throiiuh the neiflinenee of the owner. .\n(l •ec. 298 providea tliat thi' conipuny mint piiy for daoiane to cropa, etc. eauaed hy fire. nc(tli(fenee or no neuiiuenie. Not wholly diwimilar legialation haa heen paaaed in several Stntei. and apparently hi'M Kood. Kraaer v. I'l-re M.iniuette (PKIfii. 18 O. L. R. .WD. And nlao in the ea«e of tiii«Nin)fer» unil itimiU. Chieajto, 4e.. v, yernoeke. 82 N. W. 26. Some differenoea depeml upon the hypothesis that the Leifia- lature ia an agent. iHriialut: and of ■oiirse. Ilentharri or ii.i Bentham. drhijalua mill piilest ilHrijari Kor example, a State i..-giBlaturc eannot aiitl'orize u Imard of health to iriiike general rules: State v, Bunlge. !)ij Wis. :t!K). Nor enn it leave to an offleial finally to determine what shall he done to rrinlii' fnetoriea and workshops sanitary: Sehaezlein v. Calpiniss. i;!.'i Cal. 466, or the extent of expropriation for waterworks: Stearns v Bane 7.3 Vt. 281. In the Canadian "eonstitntion". I»«. lianient and Legislatures are not eonsidered ••ilrlri/alui" at all. Not even delegates of the Imperial Parlia.iient at Westminster, from whose statute the Canadian Legislative hodies derive their powers— the highest court in the Empire haa sa'd "They are in no sense delegates of or aeting under any mandate from the Imperial Parliament . . . the Provincial Legislature having .... the author- ity to impose imprisonment with or without hard Inlwiur. had also power to delegate similar authority to thn liody wnieh it created called the License Commissioners. , . . " Hoilge v. The Queen. 188:!, I) A. C. at pp. i:!2. l.t:). l:tl. -It was ar- gued at the har that a Legislature committing important regulations to ageufs and delegates, cffaies itself. That is not so. It retains its powers intact, and can. whenever it pleases, destroy the agency it has created and set up anrher. or take the matter into its own hande. How far it shaM seek thi< aid of subordinate agencies, and how long it shall continue them. are matters for each legislature and not for courts of law to de- termine", ibid, p. 132. In faet it may be said generally that any- thing a Legislature can do itself, it can depute to another sub- ordinate body to do. 1 consequently do not give particular instances or further pursue this subject. Where courts have given an interpretation to the words of a statute, it is not open to the Legislature to put another construc- tion upon these words so as to have a retroactive efifect : Green- ough V. Greenough, 1\ Pa. St. 489. No such limitation of the power of Parliament or Legislature is thought of in Canada. .Moreover there are many sta»ut?s (e. g., in insurance) which are expressly made applicable not only to future but also to existing contracts. The Legislatures in tlic United States cannot validly provide that cases pending in tlie Court under an existing law shall be dismissed : State v. Adam.s, 44 Mo. 570. In 1909 the Legislature of the Province of Ontario passed a statute, 9 Edw. VII, c. 19, which by see. 8 provided that every action theretofore brought wherein the validity of a certain contract or any by-law passed or purporting to be passed, authorizing its execution by a mun'e- ipal corporation, was attacked should be "forever stayed." One of such actions came on for trial before me— the evidence had been taken before the passing of the act but decision not yet given when the act was passed. I said (Smith v. London (1909), 20 0. L. li. at p. 142) "This action it is plain comes within the letter as well as the spirit of this sec. 8. The Legislature has said that this action shall be stayed. Jly duty is 'loyally to obey the order of the Legislature, ' the action is accordingly stayed. "While the wording of the statute is that the action shall be 'forever stayed', the Legislature has no power to control by anticipation the actions of any future Legislature or of itself; it may be that this legislation may be repealed .... the re- sult is that the stay ordered by the statute has the effect of caus- ing the court to retain the action with no proceedings to be taken therein unless and until the legislation is in some way got rid of . " This decision was affirmed on appeal, an appeal hopeless from the very first. We may go even further and say with perfect confidence that a Provincial Legislature may, in matters of private rights, oust the court altogether and make it a mere roi faineant in that regard. "It is not in my judgment doubtful that the Legislature of the Province has the power to say that any question respecting property or civil rights shall be decided in any way the Legisla- tH.-e shall see fit ... . that the L,.gislature has si.pre.ne power within the limits of subjects allotted to it to pass such legislation as It sees ht and such legislation must he given effect to by this and every other court. And if the Legislature has in fact said that the true boundary between the two adjoining hits is to he determined by three farmers or by a land survevor, it is my duty loyally to obey the Legislature and to stav mv hand- the Legis lature has the legal power-and that is all 1 iiiav concern myself about-to say that His Majesty's Court shall not determine the property rights of His llajesty's subjects .... but that such are to be determined by some other tribunal or by some person named." Relamatter v. Hrown (IWW) !,■) o \\' ij i-,g at pp. 62, 63. ..... In the ease of Smith v. London it was held that the Le.»islature might declare a contract valid which theretofore had been invalid And this method is frequently resorted to. A municipality has passed by-laws granting a bonus to a railroad or other enterprise perhap issued bonds for the amount of the bonus: some question arises as to the legality of by-law or bond issue. An act is pro- cured from the Legislature, and thereafter no one can set up illegality in what the Legislature have declared legal. The boy said "What mother says is so. if it isn't so". We say "What the Legislature say is legal, is legal if it isn't legal " An order to State officers not to engage in polities and not to make public speeches is void. Lomhan v. Conn. 79 Va 196 Our Canadian practice is to continue a man in public office for lite, but it he engages in politics or makes public speeches, he is dismissed, at least when the other party come into power-and DO one doubts that such an order as has been held void in the United States is perfectly valid with us. Then as to the Dominion and Provincial Courts. The con- struction put upon the statutes of a State by the State courts is generally followed by the Supreme Court of the United States The Supreme Court of Canada does not consider itself at all bound hy the Provineial Courts. In a case tried by myself in which I gave judgment for the plaintiff, the whole question was one of the interpretation of an Ontario statute— the Court of Appeal for Ontario sustained my judguient. In the Supreme Court, the two judges who had come from Ontario agreed in that interpretation, but three judges — one from Quebec, one from Prince Edward Island and one from British Columbia — took another view, and the appeal was allowed. The Judicial Committee, indeed, restored the original judgment: Thompson V. Equity Ins. Co. { 1(110 1, A. C. X)2: (190»). 41 Can. S. C. U. 491. But I think I have given sufficient instances now to illustrate the radical difference in many respects of the two Constitutions. I. In the United States the President and the Governors of the States (speaking generally) have as much power as George III, and in some resp. ts more — the Governor-General and the Lieutenant-Governors, less than George V. n. Times and seasons are set in the United States for change of legislation, none in Canada. III. The Government of the United States can claim no pow- ers which are not granted by the Constitution — it is a govern- ment of enumerated powers : the Dominion of Canada has all the powers not granted to the Provinces. IV. The Constitution of the United States contains a hard and fast standard set by people of one generation for their suc- cessors ; that of Canada may be changed in a day : Liitera scripts manet. V. In the United States Thp Moving Finger writes, and, having writ Moves on : nor all your Piety nor Wit Shail lure it baclc to cancel half a line. Nor all your tears waab out a word of it. ( Perhaps you would prefer the Latin version — here it is It digitus, cerae seribuntur, scriptaque durat littera : tu sapiens sis licet atque pius "dimidium dele'' frustra obtestabere "versum", non fiet lacrimis ulla litura tuis.) No interprptation by the courts of the meaning of the words of the statutes, can the Legislature correct : no contract created by legislation, however unwise, can be cancelled : no grant, how- ever improvident, can be recalled : no action based upon existing law can be stayed or dismissed : no gain, however ill-gotten, can be taken away from one who obtained it by legal means however scaly: no college can be brought under such governance as the whole State may desire and perhaps need, if it can appeal to some old charier or grant. In the United States the courts are supreme: in Canada, the people through their representatives — in the one country a few men say to tl e legislatiiii; bodies, "Thus far shall thou go and no further' , in the other the legislating bodies say to the courts, "'Thus far and thus shalt thou go and no furtlu-r or otherwise." In the United States, half a dozen men sitting up in a little cock-loft can paralyze the activity of a Senate and House — may say tliat a measure imperatively palled for in the public interests cannot be validly enacted; and the legislators, the people, are helpless — that is called Republicanism, democratic government; and there is searching of soul and shaking of heads, if not gnash- ing of teeth, when anyone suggests that the people be asked if that little coterie have correctly interpreted the popular will formerly and formally expressed in a State Constitution. In Canada sliould the court fail to apprehend the real intention of an enactment, any government which can command the support of the people can correct the error. Taley. when speaking of a view held by some of the Constitu- tion of England, says "These points tc wont to be approached with a kind of awe: they are rep: jted to the mind as prin- ciples of the constitution, settled by our ancestors, and being settled to be no more committed to innovation or debate, as foun- dations never to be stirred, as the terras and conditions of the social compact to which every citizen of the State has engaged his fidelity by virtue of a promise which he cannot now recall." Is not that the point of view, the feeling of the Ameriean? Paley adds '"Such reasons have no place in our system." The framers of the Constitution of the United States have used every endeavor to ward off what they consider the worst of all governments, an unbalanced democracy which h supposed to be necessarily pregnant with a deiuocratical tyranny (1 use the words of Erskine) thinking (to use the words of Wke) that the people being ignorant and always discontented, to lav the foundation of governineut in the unsteady opinion and un- certain humour of the people, is to expose it to certain ruin " It IS m the power of the people to change the constitution in- deed, but not at once-and the -sober second thought'' is what IS so otten spoken of „ud appealed to. Is it alwavs certain that the hrst thought is wrong: and the second thought right? With Hurke I say ■■It you ask me what a free government is I answer. That it is what the people think so. and that thev and not I are the natural, lawful and competent ,iu