IMAGE EVALUATION TEST TARGET (MT-3) V A MJ.. i^ //■^ ^, y ^ 1.0 It*- IIM I.I 1^ ? -- IIM *- I. Ill 1.8 L25 ilU 11.6 liil »> v^ /: :V > y >^ #^ r^ CIHM/ICMH CIHM/ICMH Microfiche Collection de Series. microfiches. ^ ^ ^^^H Canadian Institute for Historical Microreproductions Irstitut Canadian de microreproductions historiques " 1980 Technical Notes / Notes techniques The Institute has attempted to obtain the best original copy available for filming. Physical features of this copy which may alter any of the images in the reproduction are checked below. n Coloured covers/ Couvertures de couleur Coloured maps/ Cartes gdographiques en couleur Pages discoloured, stained or foxed/ Pages ddcolordes, tachetdes ou piqu6es Tight binding (may cause shadows or distortion along interior margin)/ Reliure serr6 (peut causer de I'ombre ou de la distortion le long de la marge intdrieure) L'Institut a microfilm^ le meilleur exemplaire qu'il lui a 6t6 possible de se procurer. 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The following diagrams illustrate the method: Les cartes ou les planches trop grandes pour dtre reproduites en un seul clich6 sont filmdes 6 partir de Tangle supdrieure gauche, de gatche 6 droite et de haut en bas, en prenant le nornbre d'images ndcessaire. Le diagramme suivant illustre la mdthode : 1 2 3 1 2 3 4 5 6 CO THE DECIS 1 CON CONSTITUTION OF CANADA. THE BBITISH NORTH AMERICA ACT, 1867; ITS INTERPRETATION, GATHERED FROM THB DECISIONS OF COURTS. THE DICTA OF JUDGES AND THE OPINIONS OF STATESMEN AND OTHEES- TO WHICH IS ADDED THE QUEBEC RESOLUTIONS OF 1864, AND THE CONSTITUTION OF THE UNITED STATES. Br JOSEPH DOUTRE, Q.C., OF THE MONTREAL BAR. PUBLISHED BY JOHN LOVELL & SON. 1880. 01 Entered according to Act of PaiTaniont, in the year one tliousand eight liiiin'i-fi and eighty, by Josei'h DoiTiiE, Q. C, in tlie otfice of the Minister of Agricul ture and Stitistics of the Uoi iaion of Caiiadii. TO THE EIGHT irONOUEABLE Henry Howard Molyneux Herber r, 'SiiirJ iof ffariuuiuiijj. THIS WORK IS, WITH HIS KIND PERMISSION?, ^cdlcatcd^ I-V AdmIRATIO.V of THK S[' PKIUOR AhIMTIES and THE SOL-N-D SenSE llNIKOnMI/ Displayed bv His Lordsiiu' .t .IT THE HEAn OF THE CoLOXIAL OkKICE. 1 The the] decis to di Fede inter r Court ingw or not but t; diffen theP right, jurisd by th( antici] House Or the In: if the first b settled Ini Canadi CONSTITUTION OF CANADA. PREFACE. The design of this work is not to be a commentary upon tlie text of the Federal compact, but, to bring together, by the side of the text, the decisions of the Courts, witli the dicta of judges and statesmen ; and to discover the principles which will aid those engaged in framiiig Federal or Provincial laws, and the legal profession generally in the interj)retation of the Constitution of the Country. Previous to "The British North America Act, 1867," the Provincial Courts did not consider they ] ossessed the power of enquiring and decid- ing whether the laws of thei' respective Legislatures were constitutional or not. Occasional attempts were made to test the validity of statutes, but they were ineffectual in their results. It has been and is quite different under the Federal Act. The Supreme Court of Canada and the Privy Council in England, have both concurred in recognizing the right, assumed by the Provincial Courts of original and appellate jurisdiction, to pass upon the constitutionality of the laws enacted by the Provincial Legislatures and the Parliament of Canada. This was anticipated by the framers of the Act, as appears by the Debates in the House of Commons. On the 4th of March, 1867, when the Bill was under discussion, in the Imperial Parliament, Mr. Cardwell said : " As matters now stand, if the Legislatures of Canada acted oiltra vires, the question would first be raised in the Colonial Law Courts, and would ultimately be settled by the Privy Council at home." Important decisions of the Privy Council, of the Supreme Court of Canada, and of the various Provincial Courts, have been already re- i VI PREFACE. ported, pronouncing upon tlio validity of tho Dominion and Provincial Statute Laws, and, on many points settling the principles that should be applied in the construction of the Confederation Act, and defining the limit and scope of Federal and Provincial Legislation. It may be thought by some, inatlvisable, to have noted so many decisiims of the Federal Court of the United States, but it will l)o remarked, how frecpuMitly our Judges have been coin])elled, in the absence of other precedents, to look to the decisions of the highest Court of that Confederacy ; for, that Eepublic also consists of i Federal Union of separate Sovereign States with a written constitution prescribing tlie sphere of action of the Central Government and of the Local Govennnents ; and this necessarily required continual appeals to the Judiciary to define, determine, and settle, the line of demarkation between these two jurisdictions. Several cases have 1)een reported more at length than many may, at first sight, deem expedient or desir- able for a work of this kind ; but it must be borne in mind that these are recent and important cases, mvolving many issues of great moment, Avhich have been discussed with great ability by the Judges of the Court of last resort in this Dominion. But, for those who do not lose sight of the fact that we are on the threshold of a new system of national existence, and, from want of an experience that time alone can give, are deprived of any gi-eat number of judicial decisions, no apology will be necessary. The Quebec Eesolutions of 1864, and the Constitution of the L^nited States have been added, for the reason, that a ready reference to them is useful, if not necessary, in the study of the Constitutional Act of Canada. It is but just to acknowledge, here, the efficient assistance afforded in our preparation of this work by L. H. Pignolet, Esq., of the Montreal Bar, and by A. A. Stockton, Esq., of the St. John, N. B., Bar, to whom the Author tenders his cordial thanks and this expression of his gratitude. ABRT^EVIATIONS. Alxl AbrMsiiiipnt. A1I.& El AdolpluHJt ElUa. A. & !•; Do. Alli'„' AlIi'Kliincp. Aw Apiiciil. AiuhI Appoi itwl. Art Artii'i^. B Bimiii. B. N. A Uiitirfli North America. B. it Ad Bimicwiill & Adolpluis. B. & H Brodorip & Biii;,'liam. n. A: C Biiriu'wiill & CresHWell. Barn, i Cress. . . Biiriu'wnll i; Crcsswell. B. & I' Bosiini|Uft & rullcr. B. & S B(st & Smith. Barl> Barlioiir. Bin'.' Bin^'lmni. Bl. Com Bliickstoiip's Commentaries, BnHl.Jt Biiife'. . . .Br(](lcTip & Bingham. Burr liurro .V. C C;imi)ter. Ch Do. Cli Cliancery. Clianc Do. Can Canada. Can . .S. C Canada Supreme Court . C. B Common Bench. C. .J Chief .Jii-itice. C. L. J Caniulii Law Jonrnal. Com Commentaries. Comm Commerce Cons Constitution. Cool. C0113. Lim.Cooley's Conatitntional Limitations. C( ast have taught British statesmen that, in the government of any pef]ile, political refoim and changes must follow the growth of intelligence and sound ideas of political liberty. Lord Pal- merston said, at a public dinner in London, in August, 1864: "Nations on the cfutir.tnt vhicli have forgotten or overlc^oked the duties of improvement and reform, liave rncountered the evil of violent tumult and revolu- tion. I trust that in thi- country, there will always be found a de.-ire careltilly to study its ini-tituiions, and a resolution to destroy abuses wherever they exist, and toieibrm tl'.o.'•ein^fitutions,^^hne^er they can 1 e tise fully leff rmrd. I trust that tlie people and government will always continue (hat dtteimiiiatioii, with a fixed resolve to respect the great iramewoik ol our Ccnstituticn ; bteause I am persuaded tliat, imfcrti ct as all human institutions are, still, never did man frame a Constitution which more hajipilj' combinid respect for religion, regai'd lor liberty, and respect and loyally to tlie thitne, together with the preservation of the rights of every individual who lives under the sceptre of the throne. d 1 Macaulay, Hist. Eng., chap. 23. (2) 2 May, Oons. His. of England, 524-538. INTRODUCTION. 13 over the , biit will and with would be ,v stronger more and nty in the lot infatu- T in which have just [u the pro- ■. Never- 1 a society. b exiiodient one of two poiation, if a complete ) povlectly ■j be carried e Empire." ^le (lependen- i("il liherty, ublics ill all ored to rule iHt nhe gave liat, in the t follow the I.ord Pal- It lie duties of and revolu- ciiretiilly to 'V exit^t, and trust tliat the jfixwl rc'polve l-Htiadcd tliat, Constitution respect and iry individual " I am convinced that no people ever did combine these great and essential ele- ments of prosperity and happiness so completely as the English people nuw do." Montesquieu, in the same line of thoaght, says : " Carthage perit, parceque, lorsqu'il fallut retrancher les abus, elle ne put souf- frir la main de son Annibal meme. Athenes tomba, parceque seserreurs lui parurent si donees qu'elle ne voulut pas en guorir. " Le gouvernement d'Angleterre est plus sage, parcequ'il y a uii , arps qui I'exa- mine continuellement, et qui s'examine continuellement lui-menie; et telles sont ses erreurs qu'elles ne sont jamais longues, et que, par I'esprit il'attention qii'elles don- nenl a la nation, elles sont souvent utiles. "En un mot, un gouvernement libre, c'cst-a-dire toujours agite, ne saurait se maintenir s'il n'est, par ses propres lois, capable de correction." (1) The- example of the prosperous union of the American States could not but suggest to the minds of the colonists of these I'roviuces, the feasibility of a Confederation of (piite a similar pattern for Provinces divided from each other by a mere geographical line. About the year 1800 (2) the Hon. E. J. Uniacke, of Nova Scotia, recommended a colonial union to the Imperial authorities, and, in 1814, Chief Justice Sewell, of Quebec, addressed to the Duke of Kent, father of Her present Majesty, a letter commending such a plan. In 1822, Sir John Beverley liol)in- son, at the request of the Colonial Olhce, submitted a scheme of tlie same nature. In December, 1825, liobert Gourlay, writing froui Lon- don, laid down the principles upon which Confederation was etlected, in 1867. The most authoritative suggestion on the subject is to be found in the report of Lord Durham, who was sent to Canada, as Higli Com- missioner, to ascertrtin the causes and extent of the complaints whicli had rcsidted in open rebellion, in 1837-38. " Lord Durham's report, says Mr. McCarthy, was acknowledged by enemies as well as by the most impartial critics to be a masterly document. As Mr. Mill lias said, it laid the foundation of the political success and social prosperity, not only ol'Canada, but of all the other important colonies. After havingexplained in the most exhaustive manner the causes of discontent and backwardness in Canada,it wen ton to recommend that the government of the colony should be put as much as possible into the hands of the colonists themselve8,that they themselves should execute,a8 well as make the laws ; the limit of the Imperial Government's interference, being, in such matters as affect the relations of the colony with the Mother Country ; such as the constitution and form of government, the regulation of foreign relations and trade, and the disposal of the public lands. Lord Durham proposed to establish a thoroughly good system of municipal institutions ; to secure the independenceof the judges ; to make all provi'.- cial otlii-ers, except the governor and his secretary, responsible to the colonial legis- lature; and to repeal all former legislation with respect to the reserves of land for the clergy. Finally, he proposed that the provinces of Canada should be re-united politi- cally and should become one legislature, containing the representatives of both races and of all districts. It is significant that the report also recommended that in any (1) Esprit des Lois, p. 2'^T. (2) 1 Tattle's History of the Dominion, p. 25. 14 INTRODUCTION. act to be introduced for this purpose, a provision should be made by whicli all or any of the other North American colonies H)iould,on the application of their le<;islatures, and with the consent of Canada be admitted into tlie Canadian I'nion. Thus the separation, which Fox thought unwise, was to be abolished ; and the Canadas were to be fused into one system, whicl\ Lord Durham would have liad, a fcileration. Tn briel'. Lord Durham proposed to make tiie Canadas self-governing, as i-egards their internal affairs, and the germ of a federal union."? The first legislative step towards a Federal union was made by the Parliament of Nova Scotia, in 1861, by a unanimous vote of the Legislativ^c Assembly, which was favorably receive^ by the Secretary of State for the Colonies, in a despatch of the Gth July, 18G2. The Legislatures of Nova Scotia, New Brunswick, and Prince Edward Island appointed delegates, in the l)eginningof 18G4, to meet at Charlottetown, P.E.I., and confer together in reference to a union of these Maritime Provinces. About the same time, the difficulties met by the public men of Canada in caiTying out their Government, induced a coalition of the lenders t)f the two conflicting parties to resort to a Federal system, and a government was formed of these opposite elements, with the follow- ing pr(.)gramme : " The government is prepared to pledge themselves to bring in a measure, next session, for the purpose of removing existing difficulties, by introducing the Federal princi])le in Canada, coupled with such provisions as will permit the Northern Provinces and the North West Territory to be incorporated with the same system of government." Witliin a month of the formation of the coalition government of Canada, the Charlottetown Convention was arranged. The delegates of the j\Iaritime Provinces were, as already stated, appointed by their respective Legislatures, and the delegates of Ontario and Quebec by their Government. Newfoundland was not represented. The Convention met on the 1st September, 18G4, and re-assembled again on the 10th September, 1864. The meeting was confined to the delegates from the Maritime Provinces. On the 12th Sejitember, 18G4, the Convention again asseml^led, the Canadian delegates partici])ating in the business, and all proceedings being conducted with closed doors. P>eyond an interchange of sentiments, nothing was done at Char- lottetown, except to arrange for another Convention, to be held at (Que- bec, at the call of the Governor General. The delegates of the Maritime Provinces were only empowered to discuss th^ propriety of a Legis- lative union among themselves, while the Canadian delegates were autliorized to treat only of a Federal union. The presence of the latter could only be informal, as the possibilities of such a union were INTRODUCTION. 16 neither foreseen nor comprehended by the resohitions of tlie IMavitinie Legislatures. The Governor General called together the Intercolonial Convention at Quebec, for the 10th October, 1864. Canada was represented by 12 delegates, G for each of the I*rovinces of Upjier Canada and Lower Canada, New Brunswick by 7, Nova Scotia by 5, Prnice Edward Island by 7, and Newfoundland by 2. This Convention sat with closed doors, and nothing but the result of the deliljerations was known. Seventy - two Eesolutions were adopted, by one vote for each Province, after eighteen days debate, and these Eesolutions were submitted to the respective Legislatures at the ensuing session. The Canadian Parlia- ment met in January, 1865, and the following Resolution was moved in the two Houses simultaneously, viz. : "That an humble Address be presented to Her Majesty, praying that She may be graciously pleased to cause a measure to be submitted to the Imperial Parliament for the pur- pose of uniting the Colonies of Canada, Nova Scotia, New Brunswick, Newfoundland, and Prince Edward Island, in one government, with provisions based on certain Ilesolutions which were adopted at a Confer- ence of Delegates from the said Colonies, held at the city of Quebec on the 10th October, 1864." The Address was agreed to in the Legislative Council, on the 20th February, 1805, by a vote of 45 to 15, and in the Assembly, on the 10th March following, l)y a vote of 91 to 33. In the Maritime Provinces, the plan adopted by the Quebec dele- gates was not favorably received by the people. In New Brunswick, elections took place in March, 1865, and an anti-confederation House was elected. Some occult influence, however was at the same time quietly working to bring public opinior. back to the Quebec scheme. In the session of 1866, the Legislative Council adopted a resolution similar to the one carried in the Canadian Parlia- ment, and the Lieutenant Governor, having replied to the address of the Council favorably to the system of Confederation, and against the known feelings of his Ministry, the Cabinet resigned, a new Ministry M'as formed of gentlemen known for their desire to forward the cause of Confederation, and new elections took place, and resulted in forming a House in which 31 members were favorable to Confederation against eight, on a test vote. The vacillation of opinion in New Brunswick had its effect on the adjoining Province of Nova Scotia, where the po])ular feeling fluctuated iu rapid waves, pro and con, until 1866, when the House of Assembly resolved, by a vote of 31 to 19, that it was desirable that a Confe- deration of the British North American Colonies should take place. 16 INTRODUCTION. This resolution, coupled with the votes of the Canadian I'avlianicnt, and the result of the recent elections in New Brunswick, formed tlie gi'ound work of the British North America Act of 18G7, as can-ied in the Britisli Parliament. The Confederation was limited to the I'nion of the Provinces of Upper and Lower Canada (under the names of Ontario and Quebec), New Brunswick and Nova Scotia eacli having a separate Govenunent and Legislature ; the other Provinces were not considered to have sufficiently manifested their assent to justify the Imperial authorities in including them in the new Constitution. The Provincial Parliament of Canada has left, in its Debates on Confederation, a useful record for future reference : — On the ord February, 18G5, Sir John A. Macdonald, Attorney Gene- ral, in moving an Address to Her Majesty, based on tlie Quebec Reso- lutions, said : " The Resolutions on tlieir face bore evidence of compromise ; perhaps not one of (lie delegates from any of the Provinces would have propounded this scheme as a whole, but, being impressed with the conviction that it was highly desirable, with a view to the maintenance of British power on tliis contiiif nt, that there should be confederation and a junction of all the Provinces, the c <■ ideration of the details was entered upon in a spirit of compromise, and, after a full discussion of sixteen days, and after tlie various details had been voted on, the llcsolutions as a whole were agreed to by a unanimous vote." (Debates on Confederation, p. 15.) " In the proposed Constitution all matters of general interest are to be dealt with by the General Legislature; while the Local Legislatures will deal with matters of local interest, which do not aflTect the Confederation as a whole, but are of the greatest importance to their particular sections. By such a division of labor the sittings of the General Legislature would not be so protracted as even those of Canada alone. And so with the Local Legislatures, their attention being confined to subjects pertaining to their own sections, their sessions would be shorter and less expensive, (pp. 30 and 31 .) " Then, when we consider the enormous saving that will be effected in the administration by one general government, — when we reflect that each of the five colonies has a government of its own with a complete establishment of public departments, and all the niachiner}- required for the transaction of the business of the country, — that each has a sei«rate executive, judicial, and militia system, — that each provime has a separate ministry, including a Minister of Militia, with a complete Adjutant General's Department, — that each has a Finance Minister with a full customs and excise staff", — that each colony has as large and complete an administrative organization, with as many executive officers as the general govern- ment will have, we can well understand the enormous saving that will result from a union of all the colonies — from their having but one head and one central system. We, in Canada, already know something of the advantages and disadvantages of a Federal Union. Although we have nominally a Legislative Union in Canada, although we sit in one Parliament, supposed constitutionally to represent the people without regard to sections or localities, yet we know, as a matter of fact, that, since the Union in 1841, we have had a Federal L'nion ; that, in matters affecting Upper Canada solely, members from that section claimed, and generally exercised, the right of ex affect Legis a niei C)tlier defeat able en erg Provi into UpjiPi such INTRODUCTION. 17 'aTliamcnt, ovmed the carritHl in the Union names of li having a 1 were not justify the on. debates on ■ney Gene- ebec Reso- lapp not one sclienie as a ruble, with a •e should lie f the details 3n of sixteen 1 as a whole to be dealt with matters lit are of the ■ labor the n those of ing confined rter and less icted in the of tlie five it of public business of system, — litia, with a inister with omplete an eral govern - >8ult from a tral system, intages of a in Canada, the people that, since ;ting Upper d, the right of exclnfivc legislation, while memljers from Lower Canada legislated in matters affectini: only their own Feetion. We have had a Federal Union in fact, though a Legislative Union in name, and in tlie hot contests of late years, if, on any occasion a measure affecting any one section was interf'pred with by the members t'rom the oilier, — if, for instance, a measure locally afiecting Upper Canada were carried or defeated against the wishes of its majority, by one froTu Lower Canada, — my FI(>nor- able friend the President of tlie Council and his friends denounced with all their energy and ability such legislation as an infringement of the rights of the Upper Province — ^jiist in the same way, if any act concerning Lower Canada were i)ressed into law, against the wishes of tlie majority of lier representatives, by those from Upper Canada, the Lower Canadians would rise as one man and protest against such a violation of their peculiar rights." « * • » (j,_ 35) 111 jouclnsion, Sir John A. Macdonald remarked : " AV'hen we think of the representatives of five colonies, all supposed to have different interests, meeting together, charged with the duty of protecting those interests and of pressing the views of their own localities and sections, it must be admitted — luid we not met in a spirit of conciliation, and with an anxious desire to promote this union, if we liad not lieen impressed with the idea contained in the words of the Resolution : ' that the best interests and present and future prosperity of I^ritish North America would lie promoted by a Federal Union under the Crown of Great Britain' — all our efforts might have proved to be of no avail." The Hon. Sir E. P. Tache on the same day moved the Address to Her jMajesty in the Legislative Council — then an elective body — and said : " That Lower Canada had constantly refused the demand of Upper Canada for representation according to population, and for the good reason that, as the Union between them would have been legislative, a preponderance of one of the sections would have placed the other at its mercy. It would not be so in a Federal Union, for all questions of a general nature would be reserved for the General Government, and those of a local character to the Local Governments, which would have the power to manage their domestic affairs as they deemed best. If a Federal Union were obtained it would lie tantamount to a separation of the provinces, and Lower Canada would thereby preserve its autonomy, together with all the institutions it held so dear, and over which they could exercise the watchfulness and surveillance neces- sary to preserve them unimpaired." (p. 9.) The evolutions of public opinion, in given conditions, are more sur- prising than any change in one single mind on any question of ethics or other subject of more practical concern. Nova Scotia, after pronouncing so decisively through her parlia- mentary representatives in favor of Confederation, was soon after called upon to express her opinion at the polls. The Confederation Act was passed in England, the new Federal Government was organized, and general elections ensued through the newly Confederated Provinces of Ontario, Quebec, New Brunswick and Nova Scotia. In the latter Province, 18 out of 19 constituencies elected anti-Union members. Ontario, Quebec and New Brunswick having strongly supported the new order of things and the new Government, Nova Scotia found it a 18 INTRODUCTION. hopeless task to oppose both, and she gradually shaped her course in accordance with the prevailing current of ojjinion. The 15111 for the Union of Canada, Xova Scotia and Xew liriinswick was presented by the Earl of Carnarvon, Secretary of State for the Colonies, in the House of Lords, and read the first time on the 12th February, 1867, without any preface or discussion. On the I'Jth of the same month the noble Lord, on the order of the day being read for the second reading, ex])lained in general terms the provisions of the Rill, and presented them as a Treaty of Union, agreed upon by the consen- ting parties, which shonld not be mati'rially varied or altered. While seeing, in a near future, the agglomeration of all the other provinces, Newfoundland, I'rince Edward Island, the Western Territories, then under the rule of a trading Comjiany, and fin.illy of British Columbia and Vancouver Island, extending thus from tlie Atlantic to the Pacific, he added : "Meanwhile let no one think liirhtlj' of the i)ref'cnt proposed union, cnrtaileil though it heof its original proportitm.s. It will in area coiiipriFe nome 400,000 sijuare miles, or more than four times the size of Englatul and Scotland ;(1) it will in popu- lation contain aliout 4,000,000 s^omIh, of wliC'm (!;"0,000 were, at the last census of 1861, men between 20 and 60 years of age, capahieol' hearing arms in defence of their coun- try ; and in revenue it possesses some £3,000,000." The rapid cour.se of the Bill in the two Houses is explained by the presence, in London, of Colonial delegates from the four Provinces, closely watching the proceedings of Parliament, and urgently pressing its passage in their desire to bring back with them the result of their mission. The publication by the daily press of the debates and discussions on the details of the measure, superseded the necessity of a repetition of the same arguments in the House of Commons. The Under Secretary of State for the Colonies, Mr. Adderley, had charge of the Bill, and his remarks, as well as those of ]\Ir. Card- well, who ably supported him, embraced political, economical, and military considerations. In pointing out the advantages of the measure and demonstrating the absurdity of these contiguous Provinces retaining a system of different commercial tariffs, and thereby ruining themselves and depressing their trade, Mr. Adderley stated that the effect of the reciprocity treaty between the United States and Canada, was, to develop the commerce between these countries, in one year, from 2,000,000 to 20,000,000 dollars. That treaty, he added, has now ceased ; but surely that is a reason why, at least amongst themselves (1) Wh'^n estimating the future area of the Confederation, the noble Lord sets it j down at 3,400,000 square miles, and this is considered as quite un accurate estima- tion of the extent of the Confederation, as now completed. INTRODUCTION. 19 course in ^M (the rroviuces), there should bo the most perfect reciprocity." Tn order to show the iidvautages tliat would be ilerived from tlu; pro- jected union, Mr. Adderley cited an extract from a letter of (iueeii Anue to the Scotch Parliament, in 1706, on the union of England and Scotland, "liecause it not only shows the reasons for union, in striking language, but is a precedent for existing Legislatures being considered able to deal with a question of this sort, without any further appeal to the i)eople." In the letter. Queen Anne said : "An entire union will lie tlio solid founilation of a lastinji peace between you. It will remove animosities, jealousies, and dilleiences amonj;st yourselves; it must increase yonr strength, your riuiies, and your trade. By this union the whole country, heini' joined in allection as well as resources, and free from all ap[)relu'n- sions of ditlirent interests, will he ahle to resist all its enemies. We etirnestly recommend unaninnty in this weighty affair, that the union may he brought to a happy conclusion. It will lie the only ell'ectual way to secure our present and future happiness, to disappoint tiie designs of your enemies, who will certainly use all their efforts to prevent or delay your union." During the debate on the Address to Her Majesty in the I'arliameut of Canada, on Gtli February, 18G5, Sir John A. Macdonald referred in the following terms to the Union of England and Scotland : (p. 30.) " The relations between Enj^land and Scotland are very similar to that which obtains between the Ciuiadas. The union between them, in Tuatters of legislation, is of a federal character, liecause the Act of Union between the two countries provides that the Scottish law cannot be altered, except for the manifest advantage of the jieojile of Scotland, This stipulation has been held to be so obligatoiT on the Legislature of Great Britain that no nu-asure affecting the law of Scotland is passed unless it receives the sanction of the Scottish members in Parliament. No matter how important it may be for the interests of the Empire as a whole, to alter the laws of Scotland — no matter how much it may interfere with the symmetry of the general law of the United Kingdom, that law is not altered, except with the consent of the Scottish people as expressed by their representatives in Parliament." Mr. Cardwell, while expressing his opinion that the overriding and controlling power, on the part of the Central Legislature, should have been granted, as in the case of the New Zealand Act, added : "But I think the noble Earl at the head of the Colonial Ofiice (Lord Carnar- von) and my right hon. friend (Mr. Adderley) are perfectly right in not pressing the question more at the j)resent moment. It is, as he justly said, not our arranger .lent, but theirs. It has been made by men of great ability, patience and temper, and they , have done it with a perfect knowledge of the circumstances with which they lad to deal." No amendment was pressed, and the Bill, with unimportant altera- ; tions in general committee, was finally passed, embodying substantially [the Resolutions of the Quebec Convention. So far, the considerations which determined the framers of the Con- I federation compact, were left to be inferred, inasmuch as nothing was 20 INTRODUCTION. done at Charlottt'town, and little is known of what was said in the Quebec Convention. Hdwever, the debate, in the most important deliberative body of the Provinces, Canada, was ample and -'xhaustive, on every detail of the measure, and |the ])ultlication of tliese debates leaves no room for complaint as to want of information in this respect The "general ])olicy of the Act, as regards the Kmjiire and the (Colonies, will be found in the English and Canadian Hansards, and will always be a source of useful reading. But this work si)ecially aims to be n legal record of precedents and oi)initjns of stiitesmen on those jjarts of the Act which have given rise to judicial contentions, and which are f! liable to do so in the future. Many ol the opinions expressed in the Canadian Legislature, which will be found under the respective clauses of the Act, must be taken J cum grano sails. They formed part of a political controversy, in which each speaker had a point to carry and a vote to give in sujiport of his views. Much of the sjjeaking consists of speculative prophecy. However, as there is much truth in the saying of Lamartine that jwetical anticipations are the foreshadowing of history, extracts will be given | under those clauses of the Act which elicited opinif)ns from eminent ^ statesmen, in the debates which took place in Canada. |i^ ! The British North America Act, 1867. AN ACT FOR THE UNION OF CANADA, NOVA SCOTIA, AND NEW BRUNSWICK, ANU THE GOVERNMENT THEREOF ; AND FOR PURPOSES CONNECTED THEREWITH. (30 VICTORIA, CAP. 3.) [29M Maic/i, 1867.] WHEREAS the Provinces of Canada, Nova Scotia, and I New Brunswick have expressed their Desire to be i Federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Con- stitution similar in principle lo that of the United Kingdom : And whereas such a Union would conduce to the Welfare [of the Provinces and pronwte the Interests of the British Empire : And whereas on the Establishment of the Union by Authority of Parliament, it is expedient, not only that the constitution of the Legislative Authority in the Dominion be provided for, but also that the nature of the Executive Government therein be declared : And whereas it is expedient that provision be made for the eventual Admission into the Union of other Parts of British North America : Be it therefore enacted and declared by the Queen's Most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the Authority of the same, as follows: Tlic foregoing Preamble to the B. N. A. Act 18G7, conforms, to the scheme of a Federal Union as projected in the first three sections of the llesolutiona adopted by the Quebec Conference. 22 B. N. A. ACT, 18G7 — I'UKAMIILK. Sections 1, 2 and 3 of these Resolutions road as follows ; 1. Tlu! btist iiitiM'usts and presLMit uml ftituro j)r'><»perity of I'ritisli North AiiK'ricii, will bo iiroiiiotcd I)y n Kutleral IJninii undor tlio Crown ij of (Irciit I'ritiiiii, jtrovitltMl such Union can l)o cifected on priiuiplL's just to tho siiverid Trovinccs. 2. In tlic iMMlcration of the IJritish North Aint'ri(!an Provinces, tlm system of (Irtvcnnnent licst ada])ted undor existing circiinistances, to protect tlie diver.nfied interests of the several l'n»vin(!es, and secure elliciency, harmony, and permanency in the workin;^ of tin; T'nion, would boa (Jeneral Government, charged with matters of common intcM'est to j the whole country, and Local Uovernments for each of the (Janadas, and for the Provinces of Nova Scotia, New Prunswick, and Prime Edward Island, charged witli the contnd of local matters in their resi)ective sections, — jn-ovision Iteing maile for the admission into the Uni(m, on equitablo t(!rms, of Newfoundland, the North West Territory, P.ritish Columbia and Vancouver. 3. Ill framing a Constitution for tho General Government, the Cimfereuco, with a view to the perju^tuation of our connection with the Mother Country and the jn-omotiun of the best interests of the ])eople of these Troviuces, desire to follow the model of the British Constitu- tion so far as our circumstances will permit. TIiG Debates on Confederation in the 8th Provinciiil Parllnnient of Canada show the opinions that were entertained on such a Union. The Hon. A. A. Dorion said : It is evident from what has transpired, that it is intended eventually to form a Legislative Union of all the Provinces. The Local Governments in addition to the General Government wiU be found so burdensome, that a majority of the people will ait])eal to the Imperial Government for the formation of a Legislative Union. * * ♦ Honorable members from Lower Canada are made aware that the delegates all desired a Legislative Union, but it could not be accom- plished at once- This Confederation is the first necessary step towards ^4- 7^ ^ ip Perhaps the people of Upper Canada think a Legislative Union a most desirable thing. I can tell those gentlemen that the people of Lower Canada are attached to their institutions in a manner that defies any attempt to change them in that way. T nigii| iiiiy Yiilti >ut in the several parts of tlie Dominion have not at^reed in their conceptions of tlie powers delcj^ated by the B. N. America Act, 1867, 1 as is made manifest from the examination of the authority contained in the heading of the laws passed in the Dominion and Local Legislatures, viz : — Dominion.— 30 Viet. Imp. c. 3 (The B. N. A. Act, 1867), Sect. 9. " The Executive Government and authority of and over Canada is hereby declared to continue and be vested in tlie Queen." — Sec. 17 : " There shall be one Parliament for Canada, consisting of the Queen, an Upper House, styled the Senate, and the House of Connnous." Heading of Dominion Statutes : — " Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada enacts as follows " : — Ontario. — Sect. 69. " There shall be a Legislature for Ontario, consisting of the Lieut,- Governor and of one House, styled the Legislative Assembly of Ontario." Heading of laws in Ontario: — • Her Majesty, by and with the advice and consent of the Legis- lative Assembly of the Province of Ontario, enacts as follows " : — Quebec. — Sect. 17. " There shall be a Legislature for Quebec, consisting of the Lieut.- Governor and of two Houses, styled the Legislative Council of Quebec, and the Legislative Assembly of Quebec." Heading of Laws in Quebec : — " Her Majesty, by and with the advice and consent of the Legis- lature of Quebec, enacts as follows ": — The heading of Statutes in Ontario and Quebec may have been influenced by their previous constitution, the Union Act, 3 and 4 Vic, c. 35 (1840), of which sec. 3 says : " Her Majesty shall have power, by and with the advice and con- sent of the Legislative Council and Assembly of Canada, to make laws for the peace and welfare and good government of the Province of Canada." OWER. B. N. A. ACT, 1867— SECT. 9, 10, FEDERAL EXECUTIVE POWER. 31 ity of and e vested in not agreed in la Act, 1867, tained in the s, viz : — Sect. 9. over Canada ."—Sec. 17 : the Queen, nious." ^ the Senate the Lieut,- Lssembly of the Legis- rVS the Lieut. - of Quebec, f the Legis- jn influenced 5 (1840), of ce and con- make laws 'roviuce of B. N. A. Act, 1867, sec. 88:— The constitution of the Legislature of each of the provinces of Nova Scotia and New Brunswick shall, subject to the provisions of this Act, continue as it exists at the Union, until altered under the authority of this Act. Heading of law.s in New Brunswick : — Be it enacted by the Lieut.-Governor, Legislative Councd and Assembly, as follows : — In Nova Scotia : — Be it enacted by the Governor, Council and iVsserably, as fol- lows : — In Prince Edward's Island : — Be it enacted by the Lieutenant-Governor, Council and Assembly, as follows : — In Manitoba : — Her Majesty, by and with the advice and consent of the Legisla- tive Council and Legislative Assembly of Manitoba, enacts as fol- lows : — In British Columbia, hefore Confederation : — Be it enacted by the Governor of British Columbia, with the advice and consent of the Legislative Council thereof, as follows : — ;SV«ce Confederation : — Her Majesty, by and with the advice and consent of the Legisla- tive Assembly of the Province of British Columbia, enacts as fol- lows : — In Newfoundland : — Be it enacted by the Governor, Legislative Council and Assembly, in Legislative session convened, as follows : — 10. The Provisions of this Act referrino; to the Gover- AppHeation oi '-' rrovisioDP nor General extend and apply to the Governor General for GovMnoruene- the Time being of Canada, or other the Chief Executive '*' Officer or Administrator for the Time being carrying on the Government of Canada, on behalf and in the Name of the Queen, hy whatever Title he is designated. Story (Com. on Cons. Sec. 524-529) remarks : . When we maintain as a fundamental maxim of Government that a separation of the three great departments of Government, the ^ B. N. A. ACT, 18G7 — SECT. 10, FEDKKAL KXECUTIVK I'OWKlt. Executive, lA'j,'islativo, and .Tmlicial, is indispt'iisable to public libei'ty, ■\ve are to umU'r.stautl this uiaxini in a liniitcMl sonst-. It is not incant to atlinn that they must be kejit wliolly and entirely .seiiaratt; and distinct, and have no common link ol" connexion or deiu^ndcnce the one upon the other, in the !sli('iulc'iie(! the iuiiiifj; is, tliiU 1)0 I'xercisi'il Liitlicr of tlio •ould suhvcn dy tlio viow II tludr coiii- )U of a con- l this division in occasional cncy of each ish Const itu- cecutive, and and s('])arate integral jiait of the King, )y tlie assent snch as, for LU impart to 5ole appoint- when once vital and it Constitii- List resort, IS, possesses ver, in exev- liis case, as 111 Conrt of artnient are ,; ^'et still the 5e of Lords 1 for advice. s own, each er of being e time, the should be \ a nuitnid interest to sustain and ja'otect each other. There should not 4 oidy be constitutional means, but personal nujtives, to resist encroach- ments of one on either of tlie others. Thus, and)ition \v(.»uld be made to counteract ambition ; the desire of power, to check ])ower ; and the ])ressure of interest, to balance an opjKKsing interest. There seems no fide(inate method of ]n'odu(M'ng this result but l)y a partial partici])ation '1 of each, in the jiowers of the other; and by introduidng into every ojier- •i ation of the fJovernment, in all its branches, a system of cheeks and halnnces, on which the safety of free institutions has ever been found essentially to deiH'ud. Q'hiis, for instance, a <,niard awu'nst rashness and violence in legislation has often been found by distributing the jiower among different branches, each Having a negative check u])on the otlier. A guard against the inroads of the Legislative jxtwer u])on the Kxe(!iitive, has been in like manner applied, by giving the latter a quidilied negative upon the former; and a guard against Executive inlluence and patronage, or unlawful exercise of authority — by re([uir- ing the concurrence of a select council or a branch of the Legislature, in appointments to oftice aiul in the discharge of other high functions — as well as by placing the control of the revenue in other hands. 11. There ^hall be a Council to aid and advise in the constitution Government of Canada, to be .styled the Queen's Privy I'nvycounci " "^ •' for Canada Council for Canada ; and the Persons who are to be Members of that Council shall be from Time to Time chosen and summoned by the Governor General and sworn in as Privy Councillors; and Membors thereof may be from Time to Time removed by the Governor General. As shown by Blackstoue (1 Comin. 229-234) the function of advising the Supreme Executive of tlie United Kingdoui, in the discliar that as long as the King tried to balance the two great ])iirties against .'• ea. 'I other and to divide his favor ec^ually between them, both would 5 think thenisclves illused, and neither wouhl lend to the Govern- I meat their hearty and steady supi)ort, which was now greatly needed. y The King, however, hesitated long before he would bring himself to ; (]uit that neutral position which he had long occupied between the contciiding parties, but finally acted upon this advice, and entrusted all the chief administrative ollices to the Whigs who couunanded a majority in the House of Commons. : Xeither William nor the most enlightened of his advisers fully under- ' stood the nature and importance of that noiseless revolution, for it was no less, which began about the close of 1G93, and was completed about the close of 1696. But everybody could perceive that, at the close of 1693, the chief offices in the Government were distributed not umHiually between the two great parties ; that the men who held those otlices were _ perpetually caballing against each other, haranguing against each other, moving votes of censure On each other, exhibiting articles of impeach- ment against each other ; and that the temper of the House of Commons -I was wild, ungovernable, and uncertain. Everybody could perceive I that, at the close of 1696, all the principal servants of the Crown iwere Whigs, closely bound together l)y public and private ties, and I prompt to defend one another against every attack, and that the I majority of the House of Connnons was arranged in good order under ! those leaders, and had learned to move, like one man, at the word of connnand. (Hist, of Eng. c. 20.) May, thus describes the introduction of a Cabinet Council into the Govcrn- Uicnt of the Canadian Provinces. After the reunion of the Canadian Provinces, in 1840, a remedy was j sought for disagreements between the Executive and the Legislature on that principle of ministerial responsibility, which had long been accepted as the basis of Constitutional Government in England, and in 1847, Responsible Government was fully established under Lord [Elgin. From that time the Governor-Generals elected their advisers [from that party which was able to command a majority in the Legisla- jtive Assembly, and accepted the policy recommended by them. * * i 30 T\. N. A. ACT, 18G7 — 8KCT. 11, 12, FEDKUAL EXECUTIVK POWER. II. All Powers under Acts to be exercised by Governor (ieneral with Advice of Trivy Council, or alone. I5y the aduptinii of this iiriiiciiilc ii mloniiil oniiHtitutiun lnv liocoiiui tli(! very imn^'e nnd rctU'ction of Pailiaiiicntiiry (Jovcnniicnt ir Kii,>j;liiiiil. TliK (Jovi'i'iior, liki- tlu' Sovoivi;,'!! wlimii ho rcprt'.si'iits, hMlil> liiiiiscir i,l(t(if from and Hujicrior to jiartics, and 'jitvcnis tlirniiLjh consli. tutioiial advisers who have ac(|uir('d an asv-cndancy in the Lej,'ishitmi', lie leaves contend iiif,' ]»aitie.s to fight out their own hatlles ; and, hy ndniittiii<,' the stronger ]iarty to his councils, hrings the Executiv. authority into harmony nith i>oj(ular sentiments, — the Kxecutivi Council heiu},' a removable body, in analogy to the usage jn-evailiii^ in the llritish Constitution, — it being understooil that councillors wli. have lost the confidence of the Local TiCgislature will tender tlieii resignations to the Governors ; and, as the recognition of this doctriin in England, has jmictically tniiisl'fiTed the sMjireme authority of tlir State, from the Crown, to rarliameiit and the jieojde, — so, in the Colonies, has it wrested, from the Governor and the I'arent State, the direction of Colonial aftUirs. (2 May Cons. Hist, of Eng. p. 533.) As a rule, says Todd (Pari. Gov. in Ilriti-sli Colonies, \k 42) all outgoing ministers should resign their seats in the Executive Council or be formally removed from that body. Hitherto, it has not beci: deemed expedient to retain ex-cabinet ministers on the list of Colonial Executive (Councils merely as honorary meiid)ers and in analogy ti^ imperial practice. An organization ref.jinbling the imiierial i>rivv council, and liable to be convened, on special occasions, or for cerenid- nial purposes, is not ordinarily rei^uired in colonial institutions, whicli, at the outset at least, should be as simple and practical as possibU'. But in the Dominion of Canada, the practice prevails that " the Queeii'^ Privy Council for Canada" — the meinliers of which are app(»inted 1)} tlie Governor-General, " to aid and advise in the Government," and aiv removed at liis discretion — are nevertheless permitted to retain an hon- orary position in tlie Council after their retirement from the cabinet. By command of the Queen " members of the Privy Council, not of the Cabinet," have a special precedence within the Dominion, and are per-j mitted to be styled " Honourable " for life. (See same work, p. 228, for j table of precedence.) 12. All Powers, Authorities, and Functions which untler any Act of the Parliament of Great Britain, or of the Par- 1 liament of the United Kingdom of Great Britain and Ireland,! or of the Legislature of Upper Canada, Lower Canada, Canada, Nova Scotia, or New Brunswick, are at the Union vested in I ; POWER. B. N. A. ACT, 18(17— SECT. 12, 13, 14, FEDEUAL EXKCUTIVK POWEU. 37 ititutidii hdn nwniuu'ut in 't'sents, liolds rou^'h consti. i Li'j^'isliituri', ties ; aiul, bv ic Executive 10 Kxt'f'utivi' 4(' itvcviiilin.; uiicilliirs wliii (t'lnlcr tlicii tlii.s (loctriiK liority of the llic Colonics. the diroctik'. the Queen'- pjiointed liy ont," and aiv tain an Ikhi- the cabinet, not of till' and are pei- k, p. 228, f(rt lich under f the Par- id Ireland, a, Canada, vested in \r exercLsablo by the respective ClovernorH or Tiieiitenant Jovcrnors of tho.se Provinces, with tlie Advice, or with the l^dvice and Consent, of tlie respective Kxeciitive Councils ■jahereof, or in conjiuiction with those (^Vnmclls, or with any |winnljer of Members thereof, or by those (Jovernors or Lieu- i.leiiant Governors individually, shall, as far as the same con- tinue in existence and ca[)able of bein^ exercised after the pinion in relation to the Government of Canada, be vested m\ and exercisable by the Governor General, with the i^dvice or with the Advice and Consentof or in conjunction ^ith the Queen's Privy Council for Canada, or any j\Iend)ers Ihereof, or by the Governor General individiuilly, as tlie Case rei^nires, subject nevertheless (exce[)t with respect to fuch as exist luider Acts of the Parliament of Great Britain Or of the Parliament of the United Kinij;dom of Great Britain and Ireland) to be abolished or altered by the Parliament of Canada. 13. The Provisions of this Act referring to the Governor Appiicntion ot eneral in Council shall be construed as relerrini^ to the rourntig to governor General acting by and with the Advice of the ^e"uT,'cii'." Queen's Privy Council for Canada. !•' 14, It shall be lawful for the Queen, if Her Majesty ''"wur toiler . I _ -^ J ,} J Mujpsty to uu- Ihinks (it, to authorize the Governor General, from Time to ,io'v';.''r,^or iTime, to appoint any Person or any Persons, jointly or sever- appoint''Dep''u. iilly, to be his Deputy or Deputies within any Part or Parts bf Canada, and in that Capacity to exercise, during the plea- JjBureof the Governor General, such of the Powers, Authorities, |ind Functions of the Governor General as the Governor K'Oneral deems it necessary or expedient to assign to him or •^liem, subject to any Limitations or Directions expressed or :piven by the Qpeen; but the Appointment of such a Deputy or Deputies shall not affect the Exercise by the Governor General himself of any Power, Authority, or Function. M The following extracts from Royal Letters-Patent of 5th October, 1878, res- pecting the Office of Governor General with the Royal Instructions of same date ties. i 38 B. y. A. ACT, 1867 — SECT. 14, FEDERAL EXECUTIVE POWER. show the Powers, Authorities, and Functions thut are vested in the Governor Generals of tlic Dominion of Canada by virtue of their office. • ••••• ••• Whereas by the 12th section of " The British North America Act 1867," certain powers, a\ithoiities, and functions were declared to be vested in the Governor General : and when;as We are desirous of making effectual and peruianent provision for the office of Governor General in and over Our said Dominion of Canada, without making new Letters-l'atent on each demise of the said Office : Now, know ve, that. III. We do further authorize and empower Our said Governor General to constitute and appoint, in Our name and on Our Ijehalf, all such JudgL'S, Commissioners, Justices of the Peace, and other necessary OtUcers and ^Ministers of Our said Dominio.i, as may be lawfully con- stituted or ap[ioiiit('d l)y Us. IV. And We do further authorize and empower Our said Governor General, so fiir as we lawfully may, upon sufficient cause to liim apjtearing, to remove from his office, or to suspend from the exercise of the same, any person exercising any office within Our said Dominion, under or by virtue of any Commission or Warrant granted, or which may 1»e granted, by Us, in Our name, or under Our authority. V. And We do fuither autliorize and empower our said Governor General to exercise all powers lawfully belonging to Us, in respect of the summoning, proroguing, or dissolving the I'arliament of Our .said Dominion. VI. And whereas by "The British North America Act, 1867," it is amongst other things enacted, that it shall be lawful f»n' Us, if We think fit, to authorize the Governor General of Our Dominion of Canada to appoint any person or persons, jointly or severally, to be his I)ei)uty or Deputies within any part or parts of Our said Dominion, anil in that capacity, to exercise, during the pleasure of Our said Governor General, such of the powers, authorities, and functions of Our said Governor General as he may deem it necessary or expedient to assign to such Deputy or Deputies, subject to any limitations or directions from time to time expressed or given by Us : Now, We do hereby authorize and empower Our said Governor General, subject to such limitations and directions as aforesaid, to appoint any person or persons, jointly or severally, to be his Deputy or Deputies within any part or parts of Our said Dominion of Canada, and in that capacity to exercise, during his pleasure, such of his powers, functions and authorities, as he WER. B, N. A, ACT, 1867 — SECT. 14, FEDERAL EXECUTIVE POWER. 39 le Governor nerica Act lared to be ilesivoin of f Governor laking new »\v ye, thiit, 1 Governor r beliiilf, all r necessary ,v fully cou- d Governor se to him exercise of Dominion, 1, or which d Governor respect of Our said 1SG7," it rs, if We of Canada lis Deputy (in, and in (Jovernor Our said il to assign directions do hereby ct to such or persons, my part or o exercise, ities, as he av deem it necessary or expedient to assign to him or them : Pro- vided always, that the appointment of such a Deputy or Deputies shall ot affect the exercise of any such power, authority or function by Our id Governor General in person. I VII. And We do hereby declare Our pleasure to be that, in the ivent of the death, incapacity, removal, or absence of Our said Governor Cleneral out of Our said Dominion, all and every, the powers and Authorities herein granted to him, shall, until Our further pleasure is (ligniHed tlu-rein, be vested in such person as may be appointed by Us tinder our Sign-Manual and Signet to be our Lieutenant Governor of Onr said Dominion ; or if there shall be no such Lieutenant Governor ijji Our said Dominion, then in such person or persons as may be iil)pointed by Us under Our Sign-Manual and Signet to administer the (government of the same ; and in case there shall be no person or persons williin Our said Dominion so appointed by Us, then in the Qenior Ollicer for the time being in command of Our regular troops in Our said Dominion : Provided that no such powers or authorities shall ▼est in such Lieutenant-Governor, or such other person or persons, until he or tlioy shall have taken the oaths appointed to be taken by the Governor General of Our said Dominion, and in the manner provided by the Instructions accompanying these our Letters-Patent. > VIII. And We do hereljy require and command all Our OfTicers t|nd ^Ministers, Civil and Military, and all other the inhabitants of Our Jaid Dominion, to be obedient, aiding and assisting, unto Our said l^overnor General, or, in the event of his death, incapacity, or absence, |o sucli jierson or persons as may, from time to time, under the provi- jions of these Our Letters-Patent, administer the Government of Our (laid Dominion. J IX. And We do hereby reserve to Ourselves, Our heirs and suc- lesbors, full power and authority, from time to time, to revoke, alter or Imend these Our Letters-Patent as to Us or them shall seem meet. X. And We do further direct and enjoin, that these Our Letters- ateut shall be read and proclaimed at such place or places as Our il&id Governor General shall think fit, within Our said Dominion of iJanada. ■w :^ y (Dom. Sessional Papers of 1879, No. 14.) 40 R. N. A. ACT, 18()7 — SKCT. 14, FEDERAL EXECUTIVE POWElt. Instructions to our Governor General in and over Our Dominion (jf Caiiiula, or, in liis absence, to Our Liinitcnant-Governor, or the Officer f(ir tlie time being administering tlie Government of Our said Dominion. AVilEltKAS by certain Letters-Patent bearing even date lieiewith, We have constituteil, ordered, and declared that there sliall l)e a Governor (Jeneral (hereinafter called Our saitl (ioveriior General) in and over Our Dominiou of Canada (hereinafter called (Jur said D(jmi- nion), and We have thereby authorized and commanded Our said Governor General to do and execute in due manner all things that shall belong to his said command, and to the trust We have reposed in him according to the several powers and authorities granted or ap[»ointed him by virtue of the said Letters-ratent and of such Com- mission as may be issued to him under Our Sign-]Manual ami Signet, and according to such Instructions as may, frum time to time, be given to him, under Our Sign-^lanual and Signet, or by Our Order in Our Privy Council, or Ijy Us through One of Our Principal Secretaries of State, and to such Laws as are or shall hereafter be in force in Our said Dominion. Xow tht.'refore. We do, by tliese Our Instructions under Our Sign-]\Ianual and Signet, declare Our pleasure to be that Our said (jovernur General for the time being shall, with all due solemnity, cause Our Commission, under Our Sign-Manual and Signet, appointing ()ur said Governor General for the time being, to be read and published in the presence of the Chief Justice for the time being, or other Judge of the Supreme Court of Our said Dominion, antl ot the members of the Privy Council in our said Dominion: And We do further declare Our pleasure to be that Our said Governor (jieneral, and every otiier otticer apjiointed to adiuinister the Goveriuuent of Our said Dominion, shall take the Oath of Allegiance in the form provided by an Act passed in the Session holden in the Thirty-first and Thirty- S second years of Our Peigu, intituled: "An Act to Amend the Law- relating to I'romissory Oaths ; " and likewist; that he or they shall take I the usual Oath for the due execution of the Office of Our Governor General in and over Our said Dominion, and for the due and im})artial administration of justice ; which Oaths the said Chief Justice for the time being of Our said Dominion, or, in his absence, or, in the event of his being otherwise incapacitated, any Judge of the Supreme Court of Our said Dominion, shall, and he is hereby required to tender and administer unto him or them. II. And We do authorize and require Our said Governor Gene- j ral, from time to time, by himself or by any other peivSon to be authorized 'uininion of iiuv, (jv the eut of Our e liciewith, si mil be a General) in said Donii- \ Ouv said tilings that ivo r(3j)i>sed granted or ' sucli Com- ;| and Signet, ^ UL', be given irder in Our iccretaries of force in Our Instructions :'e to be that ith all due and Signet, to be read time being, nion, and ul And We do lor General, Iment of Our |rm provided and Thirty- id the Law •y shall take ,ir GoveriKiv id impartial ,tice for the n the event iireme Couvi tender and lernor Gent- le authorized B. N. A. ACT, 1867— SECT. 14, FEUEKAi. EXECUTIVE POWER. 41 >y him in that behalf, to administer to all and to every person or lersons as he shall think fit, who shall hold any office or place of trust ir profit in our said Dominion, the said Oath of iMlegiance, together ith such other Oath or Oaths as may, from time to time, be prescribed »y any Laws or Statutes in that behalf made and provided. in. And We do require Our said Governor General to communicate Ibrthwith to the I'rivy Council for Our said Dominion these Our instructions, and likewise all such others, from time to time, as he shall ind convenient for Our service to be imparted to them. IV. Our said Governor General is to take care, that all laws issented to by him in Our name, or reserved for the signification of lur ])leasure thereon, sh.all, when transmitted by him, l)e fairly Ibstracted in the margins, and be accompanied, in such cases as may leein to him necessary, with such !X])lanatory observations as may be ■quired to exhibit the reasons and occasions for proposing such Laws ; lid he shall also transmit fair co])ies of the Journals and Minutes of the fTOceedings of the I'arliament of Our said Dominion, which he is to lletiuire from the clerks, or other proper officers in that behalf, of the id Parliament. V. And We do further authorize and empower Our said Governor eneral, as he shall see occasion, in Our name and on Our behalf, 'hen any crime has been committed for which the oflender may be •ied within Our said Dominion, to grant a pardon to any accomplice, [ot being the actual perpetrator of such crime, who shall give such [formation as shall lead to the conviction of the principal otl'ender ; Und, further, to grant to any offender convicted of any crime in any 'ourt, or before any Judge, Justice, or Magistrate, within Our said pominion, a pardon, either free or subject to lawful conditions, or any ifBspite of the execution of the sentence of any such offender, for such ieriod as to Our said Governor General may seem fit, and to remit any j|nes, penalties, or forfeitures which may become due and i)ayable to lis — Provided always, that Our said Governor General shall not in any fse, except where the offence has been of a political nature, make it condition of any pardon or remission of sentence that the offender ^lall be banished from or shall absent himself from Our said Domi- aioM. And We do hereby direct and enjoin that Our said Governor- general siiall not pardon or reprieve any such offender without first Iceiving in capital cases the advice of the Privy Council for Our said lominion, and in other cases the advice of one, at least, of his Minis- s ; and in any case in which such pardon or reprieve might directly feet the interests of Our empire, or of any country or place beyond 42 B. N. A. ACT, 18G7 — SECT. 14, FEDERAL EXECUPIVE POWER. the jurisdiction of the Government of Our said Dominion, Our said Governor General shall, before deciding as to either ])ardon or reprieve, take those interests specially into his own personal consideration in conjunction with such advice as aforesaid. \l. And whereas great prejudice may happen to Our service and to the security of Our said Dominion by the absence of Our said Governor General, he shall not, upon any pretence whatever, quit Our said Dominion witliout having first olttained leave from Us for so doing under Our Sign-Manual and Signet, or through one of Our Prin- cipal Secretaries of State. (I)om. Sessional Papers of 1879, Xo. 14.) V. E. Actions against Representatives of the Crown. In Hill & Bigge et ah (3 Moore's P. C. 46')), which was an actij brought against the defen_daut by a servant, and the claim being aiij account of wages, and damages for the non-payment thereof. Tlitl defendant jjleaded that he was Governor of the Province of Lowerl Canada, and averred that so long as he continued to execute the snii olHce and trust, no suit nor acti(jn could Ije liad or maintained agaiibl him in any of His , Majesty's Courts within tlie Province for anvi matter or thing whatsoever, and the Court allowed the exception, aiiJ dismissed the action, — Chief Justice Sewell observing, that theif] was no room to doubt the validity of the exception which had bct'ij filed. The Court were of the opinion that the case of Pal)rigas v| WER. li. X. A. ACT, ISGT — SKi.'T. 14, FEDKllAL EXKCUTIVE POWER. 43 11, Our said or reprieve, lideration in service and )f Our said er, quit Our 1 Us fov so jf Our Prin- V. R. \VN. i^as an action j le Island of ^ ht coutractoil Lordships of li was vestfil could do iill cially as well i against liiiii. f a Colony i~ ded, that tli-' part of the I ; the time oi: him, and iioj \n Harvey v.| |i of debt waj aim being aiij liercof. Tliel ice of Lowel ;ute the saiiij iained again. Kil, 2 W. Bl. itUO) was alone suHicient to li'tuniiiu(i the ((ucstion, but tliey cited all tlie autliorities (among Ithers, Tdinhj v. Lonl Wed mo vela ml), ami stated two cases of a limilar nature which had already been decided iu the Upper I'roviufe l;iii(l liri'Uu'li'uii in drlivcriiii^ tlic jiuLnuciit of tlieir Lordships siid : It is unnecessary to say aiiytlung of Taiulij v. Lonl Wediiiorc- Hiid, hecause tlie ([uestion there arose u])on an act of the Lord-Lieu- t'uant in Ids cajjacity oi (Jovernor, and because there would be no lafety in relying upon the report of tlie case ; it ascribes dicta to the iiiivt which there is every reason to suppose must l)e inaccurately v]i(iit(Ml, (llrfdj in some of which it is im])ossible to C(jncur. The case of Fahrhjas v. Mosfi/it, when it cauui Ijy error into the king's Hench, furnishes the only thing like authority for the conten- |iun of those who seek to im]>each the judgment under review, and it n.)t pretended that the decision is upon the i)oint now in question. '^n action of tresjjass and false imprisonment having lieeu brought against the Governor of Minorca, he jdeaded : first, the general ^ssue, and then a justification ; that he had, as Governor, and iu the aischarge of his duty, imprisoned and removed ]»lainti!l', to }irevcut |ind put down a riot and mutiny in which lie was engaged. -^ To this special plea there was a replication vernor — that the Governor of !a Colony (in ordinary cases) cannot be regarded as a Viceroy, nor can it bo '^ssmned that he possesses general sovereign power ; that his authority is erived from his commission, and limited to the powers thereby expressly or impliedly entrusted to him. The Appeal was instituted by the Crown from a judgment of the ISuju'eme Court of the Island of Jamaica, of the 6th of July, 1878. The ajjpellant was Sir Anthony Musgrave, K.C.M.G., Governor of lamaica, and the suit was brought against him in November, 1877, for Ithe recovery of £14,000 damages in trespass, for the alleged unlawful wh;tentiou by the Governor or his agents of a ship called the Florence, )f which the respondent, Senor Jose Ignacio Pulido, was the charterer. The declaration set forth that the ship, while on a voyage from Colon, in Columbia, to St. Thomas, put into the port of Kingston, Jamaica, in distress and for repairs, and that when she was ready to leave, the Liovernor and others detained her for a month, putting the respondent to great expense in procuring her release. The Governor answered that It the time of the grievances alleged there was a proclamation in force prohibiting persons from exporting or sending, among other things, 2;unpowder, percussion caps, arms, or ammunition of war ; that such 11 tides were found stored on board the Florence and were conseiiuently [letained ; and that the act of detention was done in his official capacity is (lovernor, in the bond fide discharge of his duty as such, without (iny personal interest of his own. After this, the CJovernor, by his attorney, accepted service of the writ. The Court held that, assuming the existence of the right, immunity, or privilege claimed on behalf of I 46 n. y. A. ACT, ISTiT — SKCT. 14, FEOKItAL KXRCniVI". I'oWEIt. his Excellency, it must be considered as waived to the extent (»!' liis appearance to the action. His ExceUency then jileuded formally that he was entitled, as CJitvernor, to the privilej^es and exemptions apper- tainint,' to the (dlice and its holder, and that the ticts in (pu^stion were done in the exercise of his reasonable diseretion and as acts (jf State. The case was arjfiied on demurrer before the Suj)renie Court on tin- Gth f>f July, 1.S7S. The Chief .Iud,ue (Sir .1. L. Smith) in «,dvin-,' jud^'uient (in which !Mr. Justice Ker concurred), said, in cifect, that it must be taken to be estaltlished that there was no personal privilege apjiertaininjjj to the office of < Joveriior which (?xeni]ited him from beiuj,' sued in the courts of the colony of wliicli he was (Jovernor. (" Hill v. Bi<,'j,'e," 3 ^loore's I'rivy Council lieports, 405.) The Governor ofj a colony did not represent the Soverei,un ju'enerally, but had f)idy the functions dele<,'ated to him by the terms of his commission — in other words, the Governor of a colony was not a Viceroy, but simply an! officer with limited authority from the Crown. A foreij^n And)assador, 1 on the contrary, was aUsolutely exempt from all munici])al jurisdiction by the comity of nations and the rules of international law. As to 1 the other i)lea, the Chief Justice held that it failed to show how or in i what way the acts comjilained of were to be re<.(arded as acts of State. I The demun-ers were therefore allowed. From that decision the present I appeal was instituted. It was argued for the Governor that the pleas were good ; that his I Excellency, as Governor of the Island, was not liable te be sued in an action of trespass, or for acts done by him as acts of Stfite ; and that the demurrers admitted that the acts com]>lained of were done by the (Jovernor in his reasonable discretion and as acts of State. On the other hand, it was contended that there was no personal privilege exempting the Governor from being sued, and that the judgment of the Court below was correct. Their LordshijiS, in their jiulgment, said, that as a plea of privilege] claiming immunity to the Governor from lialulity to be sued in the courts of his colony, it could not l»e sustained. This was the effect of the decision of the Judicial Committee in the case of "Hill & Bigge." The| plea must show by proper and sutticient averments that the acts in ques- tion were acts of State within the limits of the Governor's commission,] done by him as a servant of the Crown. In other words, it must be shown that the acts, as acts of State, were not cognizable by any municipal Court. In the ca.se of " Fabrigas v. Mostyn," the defendant, who wa? the Governor of Minorca, pleaded that he banished the defendant to preserve the peace of the Island and without undue violence. The! OWEU. n. N. A. ACT, 18G7— SECT. 14, FEDKUAL EXKCUTIVE POWER. 47 I'xtt'iit of his foniiiilly that ptioiis upper- [UBstion wore lets (jf Stiite. Court on tlie li) ill j^'iviiig cll'fct, tliat it j nal privilege 111 from beiii;; i V. ("Hill v. Governor of| liiid only the on — in other it simply an I Amlmssador, j I jurisdiction law. As to j )w how or in I lets of State, j II the ](resent )od ; that his e sued in an te ; and that done by the te. On the! al privilege! ;nient of the of privilege sued in the eftect of the ]]ig«,'e." The I acts in ques- commissioii, list be shown I y municipal I nt, who wn? :lefendant to )lence. The| [ilea, however, was not proved ; but Lord Mansfield stated, that if the bustiticatioii pleaded, had been shown, the Court might have considered lit a sufficient answer. In the later case of "Cameron v. Kyte " it pvas decided by the Judicial Committee that the simjile act of the iGovernor alone, unauthorized by his commission was not equivalent to an act of the Crown, and in *' l'liillii).s v. Kyre" it was in effect declared that, but for the Colonial Act of Tndcmnily, the action might [have been maintained. Let it be granted, that for acts of jMiwer (hiiie by a Governor under [and within the limits of his commissitm he is [irotected, because in doing them he is the servant of the Crown, and is exercising its sovereign [authority; the like protection cannot be extended to acts which are wholly Iteyond the authority confided to him. Such acts, though the Governor may assume to do them as Governor, cannot be considered as done on ])ehalf of the Crown, nor to be in any proper sense acts of State. When ([uestions of this kind arise, it must necessarily be within the province of JMunicipal Courts to determine the true character of i the acts done by a Governor ; tliough it may be, that, when it is estab- lished that the ])articular act in question is really an act of State policy, done under authority of the Crown, the defence is complete, and the Courts can take no further cognizance of it. Their Lordships conseiiuently decided that the plea of privilege raised by the defendant was unmaintainable. In Joly et al. & Macdonald (23 L. C. J., 16), an injunction was issued by the Sujterior Court, ^lontreal, against the defendants (the Commis- sioner of Public ^Yorks and the Government Engineer), at the instance of the contractor IMacDonald, to restrain them from taking possession of a public work, together with the contractor's works and property. The Defendants refused to obey the writ of Injunction and took pos- session of the works. A motion was tiien made by the Defendants to dissolve the Injunction order, while they remained in contempt, which was dismissed. On appeal from the judgment dismissing this motion : — It was held, by the Court of Queen's Bench as one of the grounds of dissolving the Injunction (Monk and IJamsay, J. J., dissenting) that an injunction cannot issue against the Crown, or to restrain the ex- ecution of an Order-in-Council sanctioned by the Crown, and that this is a necessary consequence of the rule that the Crown cannot be sued or impleaded, at least without its own consent. 48 B. N. A. ACT, 18G7 — SECT. 14, FKDERAL EXECUTIVE POWER. Kirk- V. The Qurcn (L. 11., 14 E([., OHS). A motion was made by a contractor for public works — wlio luul ))ri',H('Utc(l a Petition of Ki<,'bt — for an Injunction to restrain the Secretary of State for War, iJcndin;,' the hearing, from ]»reventiiij4 tlie Hii]»|)liiint completing,' his crMitract. The contract gave i»o\ver to the VViir Ollice to fix the time within wliich any projiortion of the work was to be completed, and to determine; the contract in case of undue delay. liepeated warnings having been given to the contractor of dilatoriness, ultimately, notice was given to him on this ground to withdraw from the site of the works. He refused to do so, and in August, 1871, presented his ])etition of right, and then moved for the injunction in tpiestion. The injunction was denied. Chnrchica)-(I v. Tlic Queen (L. 11., 1 Q.P.., 173). The Lord Com- missioners of the Admiialty, as agents of the Crown, entered into a con- tract with plaintifl" that he should convey all the mails which would by the Commissioners, Sea., "bere([uiied to be conveyed " between certain ports. Held, that this language did not iniply an obligation to emi)loy the Plaintiff to jterform the service. Held, also, that by the agreement to pay for the services a. stipulated sum, out of monies to be provided by Parliament, there was no intention implied on the jiart of the Lords of tlie Admiralty to bind the Crown in the event of Parliament not jiroviding the; funds, and that cimsequently, the Petition of right founded upon a contract by (lovernment otheials, where there was no imjjlied coveiumt to employ the contractor, was Udt maintainable against the Crown ujion a refusal of the olUcials to emi)loy him. Neither is a servant or agent of the Crown personally rcsponsiblo for the performance of a contract he has made on behalf of the (>rown. GicUcj v. Lord Palmerston (3 Prod. & Bing. 275; 7 Moore 91). In Ciinterhury v. The Qne.cn (7 Jur., part. 1 p. 224), which was a Petition of right in which petitioner claimed compensation from the Crown fc^ir damage done to his property by a fire caused by the negligence of the servants of the Crown — held, that a petition of right does not lie to recover comjjensation from the Crown for damage dui- to the negligence of the servants of the Crown, they alone are respon- sible. Bohertson v. Dumarenq (2 Moore's P. C, X. S. 6G), which came before the Supreme Court of New South Wales, in an action against the Government of that Colony, (the nominal defendant repre- •5«ntine the Government^) bv an army officer having a claim asiainst tlw -tout OWEK. B. N. A. ACT, 18G7 — SECT. 14, FEDEKAL EXECUTIVE POWER. 49 as made by II (tf Hijilit — l)en(liii^' the iitract. The n which any (tenninc the ,i;l>i'iMi<,'iven ^ivt'ii to him He refused f ri<,'ht, and was denied. 3 T.(jid Com- (l into a con- ch wonld by ween certain m to einjdoy 3 a stipulated no intention the Crown in onsequently, lent olVieials, (•tor, was not lis to enndoy responsible the Crown. mv 91). 224), which iisation from used by the ion of right laniage due are respon- 66), which n an action ndant repre- X ay the (Governor, of a grant >f certain land in the Colony, on eijnditicm, that he would retire froiu Ihe ariuy and take up his residence in the Colony. He complied •ith th(! condition, bnt failed to receive the grant of the specific land )roniised. The proceeding was in the nature of a Petition of right, authorized Dy the Local Act (20 Viet., No. 15), which recites that the renujdy by 'etition of right is of liinitcid nperati(tn, and insutlieient tnto )r difference may present a petition to the Governor, setting forth the )articulars of his claim, and that such y)etition may, if the Governor ' ;^nd ExeiMitive Council think fit, be referred to the Suj)reme Court for Irial by a jury or otherwise, as the Court shall direct. And by sec. 2, |n case of such reference, the Governor shall name some jierson to be a ^^oniinal defendant in the matter of such petition, the complaining party Jpt'inii the plaintiff tliercin. In pursuance of these enactments, a petition by the plaintiff was jresented and referred to the Supreme Court for trial, the defendant, dio was Minister for Lands, being named under the last niiMitioiied sec- tion to represent the Governmcut. The Supreme Court rendered ludginent in favor of idaintiff for the value, at the time of the trial, of he specific land which had been promised him by the Governor. On api)eal from the Judgment of the Supreme Court, refusing a new rial, their Lordships of the Privy Council confirmed the Judgment ^nd dismissed the api)eal. The Sovereign is not responsible for a wrong, and cannot authorize wrong to be done ; the remedy is by action against the wrong doer. The authority of the Crown can aflbrd no defence to an action brought }T an illegal act committed by an officer of the Crown. Feathers v. rhe Qneen (12 L. T., N. S., 114; 35 L. J., Q. IL 200.) Also, similar Kding in : — Toh'ui V. The Queen (16 C. B., N.S., 310) where a captain in Her ajesty's Navy destroyed an innocent vessel on a mere suspicion that le was engaged in the slave trade. The owners brought a Petition of |ight against the Crown to recover damages, on the ground that the elation of the Queen to a captain in Her Majesty's Navy was similar CO IS. N, A. ACT, 18G7 — SKCT. 14, FEUKKAI. KXKCUTIVK I'UWKR. to lliiit f)f a nmstcr to his scrviint, and that tlie rcsjtoiisiliility attached! to the Crown for injury .sustaiui'd l>y his n('<,'li;,'t'n(,'»'. MM, tliat the snppoHdd analogy fails in th(^ following' r('S|H'ct.s : First, that tlu; (i)nt't'n (h)t's not appoint a captain to a ship of her own more will, as a master (h)e.s a servant, but thronj,di an Olliocrof State, responsihlo for appoint- iiii^' a man properly ([iialitied; anil, secondly, that the M'ill of tlu; (^neeii alone does not control the conduct (»f the captain in his movements, hut a sense of professional duty; and, thirdly, hccause the act com- jihiined of was not (h»ne hy order of the (Jueeii, hut hy reason of a mistake in respect to the path of duty ; and conseiineiitly, that this wa*j not a case for a Petition of ri<,dit for the reason that chiims founded on 'Wrongs are within a chvss h-^'ally distinct fr,'ents were not jiersctnally responsible foil them. And an action will lie aj,'ainst the wron<,'-doer for a torti(»us oil wronj^l'ul act, n(»twit]istanding it may have had the sanction of the highest authority of the State. JoUnstouv \,^:iuttolt (l Dura »)c Kasti 538). In LviU'h v. Money (19 How. St. Trials, lOOl), plaintilV, wlio was ar-j rested by a Kiuj^'s messenj^er under a «,'eneral warrant under the hand oij Lord Halifax (rrincipal Secretary of State), recovered damages against the messenger for false imprisonment ; it being held that general uneer-| tain warrants were illegal. No action will lie against a military ofticer for an act done in tlui ordinary coarse of his duty as sach otticer. Dawkins v. Pnalet (L. Ill 5 Q. iC, 'J4). But an actioa \vi'' a wnmgful and illegal act done by a mili-| tary otticer not i' iui.se of military authority or in the discharj. of a military l Warden v. Bailey (4 Taita. G7 ; 4 M. & S,] 400). An injurioas act done by a naval commander, if adopted by th- Government (the Secretary of State for Foreign Atlairs and the Secretarvl of State for the Colonial Department) becomes an act of State done l.i.| aathority of the Crown. The ratification by the Ministers of State the iujarioas act is equivalent to a prior conimaad. Baron v. /)e;t»wi| (2 Exch. 166). OWKR. n. N. A. ACT, 1807— SKCT. 14, Fi;r>KllAL KXKCl'TIVR POWKIl. 51 lity ii(tiU"li(Ml;,'J5*i^ IcM, tlmt tlie> it till' (i>»U'cn I, as 11 iiiiistw ;3 ' for iiii|i<)iiit- of tlii^ (^)ut'i'ii ji lllOVl'llll'llts,! tlio act com- V reason of a that this \va< iiiiiis foiuult'il^ IS founded 011^ y were done,] •rcspousihilityj lintained with! •L'sjionsible foil a tortious oil net ion of thel Duni & Kastjj f, who was ar-j I the hanil oil laj^es a,i;aiust| Mieral uneer- done in tlitj hixlef (L. Ul \u', by a mill- the dischargd ; 4 M. & S. opted by tk the Secrotiiryl State done l'| rs of State • ■ mi V. Denm^l In Wijind v. litirah (L. \l. .'? A pp. cases, P. C. 88')). Ilehl l)y thoir ^(trdships of the Jnilicial Committee, that section 9 of tlie Imperial Act [24 i^: 25 Vict. c. 104), for establishing' Hi^'li Courts of Judicature in Inr of the provisional judicial districts; and that the Prentgative ])ower ^till exists, since the ]>assage of the liritish North America Act of 1867. It Would appear by sections 12, 65, and 02 that b(»th the Governor [ireneral and Lieutenant Governor can issue commissions of this nature. In I'liUUpx V. Eyre (22 L. T., X. S., 869). The Governor of ramaicfi was held to be [)rotected against an action in England by an let of indenniity jiassed by the Jamaica Legislature, and to which his )wn assent was necessary. Cnekburn, C. .1., said : There is no ground whatever for saying that ^he Governor of a Colony cannot give his otHcial consent to a legislative measure in which he ma}' be individually interested. It might as well ae asserted that the Sovereign of these realms could nart 1, ]i. 3r»3). Held bv their Lordships of the I'rivy Council, that, after the estab- lishment of an independent Legislature in a Colony, there is no power iu the Crown by virtue of its prerogative to establish a ni<4roi)olitfin j see or jirovince, or to create an ecclesiastical corporation, whose status, I rights and authority the Colony could be re([uired to recognize. After; a Colony or .settlement has received gislative institutions, the Crowif (subject to the special provisions of any Act of Parliament) stands in - the same relation to that Colony or settlement as it does to the United Kingdom, Similar ruling in : — {Campbell v. Hall, 29 How. St, Trials 239). In The Banlkcrs' Case (14: How. St, Trials, 2), in which Williamson, Hornliee and others were plaintiffs, and His Maji'sty by his Attorney General was defendant, the ]»laintin', L'obert Williamson, instead df ; proceeding by Petition of right to the King, commenced hi.-;^ suit liy j exhibiting his Petition to the Barons of the ?2.\che(iuer, setting forth I his title as assignee to a portion of an annuity granted by the Crown : Held, that a subject may have two remedies at common law tu recover against the King: by Petition of right; or by iiioiifftiunii de droit. It ajtpeared that the Bankers liad loaned over one million of j pounds sterling on the good faith of the Crown ; aiul that the annuity in question was granted by letters jjatent from the Crown on the shutting up of the E.\che([uer in 1G72 by Charles II. The Attorney General raised the objection by demurrer, that a I Petition to the Barons of the Excheipier was not a proper remedy. The Court of Exchecpier gave judgment against the Crown on tlif demurrer ; this Judgment v.ds afterwards, on a writ of error, reversed in the Exchequer Chamber, Lord S(»mers holding that where the subject is in the nature of a plaintiff, his only remedy at Common Law to j recover anything from the King, is to sue by Petition to the person of the King. That this was the only Common Law remedy for Crowu debts. Lord Holt, dissenting, maintained that the jdaintilVs had a I remedy at Connnon Law, by Petition to the Barons of the Exchequer and also by Petition to the King, and said : QWEU, li. X. A. ACT, 18G7 — SECT. 14, FEDERAL EXECUTIVE POWER. 53 r Lonlships, ; to perform .veniioi't V. )• I3">3). 'X the estab- is no puwi'i liclvoiHtlitiin ho^?e status, uize. After ; , the Crown | t) stands iuj I the UniUid Williamson, Ills Attorney , instead of his suit by settin*; forth le Crown : in law to list ra as laint for the nou-fidlilinent of a contract made on 3hall' of the Queen by the authorized agent of the Crown. It was held, on the authority of The Bankers' Case (14 How. St. Trials p. 2) : — That a Petition of right lies as a remedy at Common Law [gainst the Crown in resi»ect to the non-fulfilment of a contract made py the authorized agent of the Sovereign ; and that the Act 23 and 24 ''iet. c. 34, only governs the procedure in Petitions of right, but does liot give any right of Petition where none previously existed. Blackburn, J., who delivered the Judgment of the Court, said, "The uuevs of the Act appear to have considered its chief utility to consist the aiiiilical)ility of its improved procedure to Petitions, on contracts 3tween subjects and the various public departments of the Govern- leut." ^ I 64 B. X. A. ACT. 1807 — SECT. 14, FKDKItAI, KXECUTIVE POWElt. rUEUOClATIVES OF TllK CUOWN. Ill DcHttin V. Ddhtj at tlio February tciiii (llSSK) of tlio CDUiity Court, Difiby, Nova Scotia, it was licld iliat tiio power to a|iiKiiiit Justuses of the Peace is one of tlin prerojiatives of the Crown ; Tliat there is notliiriL; in tlio li. \. A. Aet inconsistent witli tlie riileiuion of tliis jirern^ative in Her Majesty's hands -.ind tlie exercise of it by lier iluly constitnted representative, tiic GoveriKU' Uoneral alone; That llie power ot ihe Lieutenant Governor is limited by his commission ; tliat the commission to the i.ieutenant Governor of the Frovinc(! of Nova Scotia does not constitute iiim tlie Depuly of tlie Governor (Jeneral to ajpoint JiislicMS of tiie Peace for tliat Province; That the power to appoip Justices of the Peace in the; Provinci' of Nova Scotia rests .solely with the Governor General. ILld, also, that the criminal law, with the admiiilslratioii of wliieh the Justices of the Peace have peculiarly to deal, is a subject of exclusive leuislation by the Doniiiiioii i'arliainent. Tlie facts of the case and the trrouiuls for the deci.-ion fully appear from the followinjj extract from the Judgment of Savary, County Judi^e: Oil t^e di.ssolution of the fdViner iiroviiiciiil (Jon.stitiitiuns a new charter mus given to tlie united Provinees, in which one rejiresentiitive of the Crown alone, niuler her Majesty, rules; new ami .suljonlinatt' governments being tieeorded t(j the dili'ereiit Pmvince.s coniposing the federation. The defendant not having acknowledged the jurisdiction by aippearing in the Court hi'low, as .soon as it is made cletir I»y ]>r(i|icr proitf to the Court of lieview tlial the gentlemen U'-tiiig as Justice^) derive their commission not from the tloveruor (leneial, Imt from the hieuteiiant (iovernor, the emiuiry is iniiiiu'iitly made, in fact forced u[»on us, whether the latli'i' iiigli functionary had the jtower to i.s.sue .such commissions. That such a power i.s one of the ja'erogatives of the Crown, a glance at the nature and history of the ollice is hardly necessary to show. We hear of the (Queen's Peace, and of the honoiahle, ami in Kuglainl still much honored, title of Her Majesty's Justices of the Peace. "The sovereign" is the fountain of justice and the general conservator "of the peace." Blacksstone's Com., l>ook 1, jiages 2GG, 350. " licime "the present constitution of Ju.stiees was invented, there were peculiar " oflicers appointed by the cijiumon law fiu" the maintenance of the " public peace. Of these some had, and still luive, this jiower annexed "to other oflices which they hold; others had it merely by itself, and "were thence named custodis or comervatores pacis. Those that " were so cirtute ojjicil still continue." At length an Act of Parliament was passed in the 1st year of the reigii j K X. A. ACT, 1867 — SECT. 14, FEDF.UAL EXECUTIVE POWEIi. 55 I of Edward III. ordaining " that, for the better maintainiiij,' and keeping of I " the Peace in every County, good men and lawful, -.vhich were no niain- |"tain('rs of evil or barrators in tlie county, should be assignt'.(l to keep "llie peace. And in this manner and U])on this occasion was the election of the Conservators of the Peace taken from the piiople and given to 'tlieking; this assignment tteing construed to be by the King's com- ' mission. IJut still they were only called conservators, wardens or ' keepers of the Peace, till the Statute 34 Edw. 1 1 1., c. 1, gave them the |"p(jwer of trying fcdouies ; and then they acquired the mon; honor- " able appellation of -Justices. These Justices are a])point(ul by the "King's special commission under the great seal, id., p 351." Now, as an indispensal)le incident to Pritish institutions our iinmigrant ancestors la'ought with them to the colonies this ottice of Justice of the Peace, with the mode of appointnu'ut, anil all its other incitlents. P>efore confederation the ])o\ver was vested in the Governor CJeneral as [the Queer'-! Iie[>resentative by the express terms of the Koyal Com- jmission constituting him the Governor in chief of each Province, In the connnission to Lord Monck, ])ub]ished in full in the Journals [of the House of Assembly for 18(i2, Ai»pendi.\ No. 34, p. 1, we find the following clause : No. 8. " And we do hereby authorize and em- 1" power you to constitute and a](point .Fudges, and, in casi'S requisite, I" commissioners of Oyer and Terminer, Jvi^tieex of flie Pcy the Governor General, so far as the same continue in existence and aj'e capable of being exercised after the union, in relation to the Government of Canada. Under sect. 14, it is competent for the Queen by Her Royal Commission to authorize the Governor CJeneral from time to time to ajipoint any person or persons to be his Deputy or Deputies in any ]iart of Canada, to exercise such of his powers as he deems it expedient to assign to him or them ; but this, as will presently be seen, altliougli authorized thereto, he has not, in relation to this matter, done. 1 Section 04 refers to the constitution, and not to the j)owers of the local Executives ; and we have sect. 65 to the same eft'ect as section 14, in respect to the exercise of the powers therein referred to, so far as the same ure capable of being exercise^ in relation to the newly constituted Provinces. Finally we have sect. 96, ordaining that the Governor Getieral shall appoint the Judges of the Superior and County Courts, excejjt the Judges of Probate of Nova Scotia and New Brunswick. In one sense, perhajis, the Court of a Justice of the Peace is as much a County Court as a Court of Probate, but, as the Act is to be construed in the B. N. A. ACT, 18G7 — SKCT. 14, I'KDKllAL EXECUTIVE POWER. 57 li<'ht of tlie then existing laws, I should confine the application of this clause to the County Courts strictly so-called, then and subse- iiuently established. ])Ut that even this is o])en to some question, the dissentient oj)inions of the Supreme Court of New Brunswick as to the validity of a local Statute establishing Tarish Courts, with jurisdiction in res]iect to petty debts and torts, so far as it vested the a])pointment of the Commissioners, or Judges of those Courts, in the Lieutenant Governor, sufticiently shows. Ganoiuj v. Bailey, Stevens Dig. 274. I We find, therefore, in the Act, nothing inconsistent with the retention of this prerogative in Her Majesty's hands and the e.xerciseof it by her duly constituted representative, the Governor General alone. 15ut we do find, as a striking illustration of where it was intended that the [Sovereign legislative and executive ])ower of Canada, should reside ; that Ithe criminal law is a subject of exclusive legislation by the dominion Irarlianient ; and it is with the administration of criminal law that dus- Itices of the Peace have peculiarly to deal. Turn we now to the llnval ICommissions to the Governors General of the J)ominion; and we and in that to Lord Monck, published in the Sessional Paper'-, of the House 3f Commons of 18G7-8, Vol. 1, No. 7, paper 22, clause b, the following : And «\c do further authorize and ein[)()wer you to exercise all such j" powers as we may be at any time entitled to exercise in respect of tho r constitution and ap]»ointment of Judges ; and in cases recjuisite Com- p' missioners of Oyer and Terminer, Justices of the Peace and other P' necessary officers and Ministers of our said Dominion of Canada, for rthe better administration of justice and putting the laws into execu- •' tion.'' ]>y Section 9 provision is made for the exercise of his functions in e of his death, incapacity, or absence from the Dominion. In 5ection 10 of the instructions accompanying this commission, and pub- lished in the succeeding pages of the volume, it is enjoined that all Eonunissions to be granted to any Judge, Justice of the Peace, or other lecessary officer, unless otherwise provided l)y law, shall be granted jiuring pleasure only. The corresponding clause in the commission to sir John Young (Lord Lisgar), published in Sessional Pajjcrs of 1879, Is as i'ollows : " And we do further authorize and empower you to constitute and appoint in our name, and on our behalf, all such ' Judges, Commissioners, Justices of the Peace, and other necessary 'officers and Ministers of our said Dominion, as may be lawfully ' constituted or appointed by us." The same clause is repeated in the Commission to the Earl of E I 58 R. X. A, ACT, 1867 — SECT. 14, FEDEUAI, EXECUTIVE POWEU. Diilfcnn, laid on the Talile of tlie House of Commons on the lotli day of February, 1875, in response to an address of that body of the 8th of j tlie same month: and accom]tauyin<^ the commission appoiiilinj^ the j present (Hstinfjuished and nolih^ Kepresentative of the Crown to his I hijili oHice, there is the draft of Letters patent, dated 5th October, 1878, 1 passed inukT the great sei»licable to tliis. It is worthy of note that not lony after Confederation, the Legisla- tun; of New Brunswick, acting under Sub-Sections 14 and Hi of Section 92 Ii. N. A. Act, ])as3ed a Statute providing for the creation land aitpointnient of Justices of the I'eace, as did also the Legislature of Ontario in KS77, bo fore the ]»assage of whitih 1 am informed, the (loverniiieiit of the latter rrovince declined the responsibility of making Isuch appointments. Judgment below reversed with costs. Apjiointitwnt of Queen's Counsel. I'cfoic tlio fpicstion concerning tlie appointment and precedence of Queen's j Counsel w.is submitted to any Court, a eorrcspondence in rel'eri'nce to llio subject took place between tlie Minister of Justice and the Colonial OflSce. No. 50, of the Dominion Sessionnl Papers of 187H contains the following report l(presenting tlie whole n.atter), submitted by the iMini>ter of Justice, Sir Julin A. Maedoiiald, to the Governor (Jeneral, and the answer of the Colonial Secretary, to whom t!ie matter had been referred hy !Iis Excellency : — Ottawa, 3rd January, 1872. The undersigned has the honor to report to Your Excellency thnt [the ([uestion has been raised by the Ooverninent of the Province of [Nova Scotia as to whether they have the jxiwer of a]ij»ointing Queen's Counsel for the Province, their o])inion being that they have no such power. The undersigned is of opinion that, as a matter of cour-ic, IIs.r Majesty has directly as well as through her rejjresentative, the Governor tJeneral, the jxiwer of selecting from the bars of the several I'rovinces iier own counsel, and, as/o»ts honorin, of giving them such Iprecedence and pre-audience in her Courts as she thinks proper. It is held by some, that Lieutenant (lovernors of the Provinces, as [they are now not appointed directly by Her ^Majesty, but by the IGovernor General, under "The British North America Act, 18(37," Iclause 58, do not represent her sufticiently to exercise the Itoyal [}(rer(»gative without i)ositive statutory enactment. This seems to have been the view of Her Majesty's Gtnernmeut in |18(i4, when they refused to confer the Pardoning power on liie Jeutenant Governors. (See despatch of Mr. Cardwell of 3rd December, 1SG4 ; also. Lord Ireuville's despatch of 24th February, 18G9.) 60 n. N. A. ACT, 18G7 — SECT. 14, FEDERAL EXECUTIVE POWER. Oil the otlu'V liand, it is contended that the G4th and GHth clauses continue to the Lieutenant ( lovernors the powers of a])])()intin«f(^)iie«nr,s Counsel which they exercised while holding commissions under tin; great seal of Kngland. Keference is also nia by counsel, the selection of those counsel, and the right of jire-audiencc. as it sees fit. Such enactment must, however, in the opinion of tin undersigned, be subject to the exercise of the Koval jn-erogative, which is parauioant, and i.^ no way diminished by the terms of the Act ni Confederation. As the matter affects Her ^Lijesty's })rerogative, the nndersigiuii would respectfully recommend that it be submitted to tiie lligli: Honorable the Secretary of State for the Colonies, for the opinion of tli> Law Officers of the Crown and for Her Majesty's decision thereon. Tli- question.-? for ojnnion would seem to he : — (1) Has the Governor General (since 1st July, 18G7, when tlit^ Union came into eflect) power, as Her Majesty's Pepresentative, tcj appoint Queen's Counsel ? (2) Has a Lieutenant Governor appointed since that date tiki power of appointment ? (3) Can the Legislature of a Province confer by statute on its Lieiii tenant Governor the i)ower of appointing Queen's Counsel ? (4) If these questions are answered in the affirmative, how is till question of precedence or pre-audience to be settled ? All which is respectfully submitted, (Signed,) JOHN A. MACDONALD 1 I!. N. A. ACT, ISO?— SECT. 14, FEDERAL EXECUTIVE POWER. Gl Oa Ist February, 1872, Tho Earl of Kiiuberlcy, Colonial Sccrotaiy, i answers : — . , . . Ill c(»nij)liance with the request coutaineil in cles])at('li [of the 4t]i Jiimiary, I have taken the opinion of the Law Otlicm's lof the Crown on tlie ([uestions raised therein, with regard to the power of appnititiiiL; (i)ue('n's Counsil in the I'rovinces forming,' the Dominion. I am advised that the ( Governor (Jeneral lia.s now, power, as Her [Majesty's reja'esentative, to apjxtint Queen's Counsel, but that a Lieu- tenant Governor, ai)i)ointed since the Union came into effect, has no Isuch power of ap]K)intment. 1 am further advised that the Lef the Supreme Court of Nova Scotia, oFthe 2Gth March, 1877, making a rule ilsi absolute, and grunting rank and precedeno'' to Jo.seph N. llitchic over all Jueeii's Counsel appointed iu and for the Province of Nova Scotia since the 62 n. N. A. ACT, 1807 — SKCT. 14, I'KDKliAL KXKCl-TIVE I'oWEIt. 2Gfh ion just ;^ivon would contain the whole judirment of the Court which is authoritative in the c;a.se. A majority of the Ct)urt, difTerently composed, expressed oth<'.r opinion* sujrizested by the subject discussed befon; them, but not submitted to tliem. Thus Henry, Taschereau and Gwynni', J.J., appear to have airreed in the followini; opinions : — That the Acts of the Legislature of Nova Scotia in (piestion are ?///ra vires and void, in so far as tliey invest the Lieutenant Governor with the authority of appointing to the rank or dignity of (Queen's Counsel, | whitdi Her Majesty by herself, or through her representative, His Ex- cellency the (tovernor ( I MUM'al, alone has the right to couA^r. Tliat Her Majesty forms no integral ]»art of the Legislature of the Provinces as she d les of the Dominiiui rarliament, and is no party to the law.s made by the Local Legislatures, and that no Act of any such j Legislatures can in any manner impair or affect Her Majesty's right to| the exclusive exercise of all her i>rerogative ])ower3. That the British North America Act, 1867, Joes not, either j expressly, or by inference, divest Her ]\L'ijesty of this branch of lierj l>rerogative, anil confer it u])on the Provincial Legislatures, or the] Lieuteiuint Governors of the Provinces. Theae opinions, being concurred in by a majority of the Court would have! become preccdent.s if submitted to them. Having entered into the course of expressing opinion*, the Judges by two] and bj one, gave their individual views on the following collateral questioDS, »WEU. 1!. X. A. ACT, 1807 — SECT. \i, rKDF.UAL EXECL'TIVK I'OWKU. 63 cd lli«' 'JTtli nclii liiii; tlio 1874, of the I N'lvoiiiber, .| 'A (»f Slron-.', ico t ikinii no iijority of the | 'urreiice witli J tt ivtriis)tL'i'. fi a way tlu' « [111(1 tluit tin- I vew. V(»iil in rcsiMiiidt'iit. itcliii! :in8 to VfntC it'iii POWER. P. N. A. ACT, 18G7 — SECT. 15, FKDKUAL KX^X•L•TIVE I'OWKIf. G5 thu advice I, or (tf the u(l Nvitli the lot ti'iulort'il sr ulso given Ills thar«,'e o the liristol (Irand diiiy on the special commission u])on the oc(;asions )f the riots in 18.'32 (o C. & I*. 2G2), thus, in accordance witli many lutliorities, stated the law as to i)rivate citizens, ' In the first jilace, \>y the Common fiaw, every private individual may lawfully endeavor )f his own authority, and without any warrant or sanction of the Maijis- trate, to sujipress a riot by every means in his power. He may (lis- berse, or assist in dispersing those who are assembled; he may stay those who are engaged in it from executing their purpose ; he may stop iiitl prevent others whom he may see coming uj) from joining the rest, md not only has he the authority, but it is his b :J of ,succe.s.siv. ;4enerations. Ereeman — Origin of Parliamentary Jtepre- ; sentation in Englantl (]:') Canada L. .1., (>7.) The illustrious Coun(;il from which the name of Senate is derived was not an I'lqter House, but the government of the I{(»man l{e].ublio. ^ having the executive ]>ractically under its control ami the initiative of legislation in its hands. The American Senate is a special re]»resenta- ^ tion of i\u' feil^'ral, as distinguislied from the jHipiilar principle, in »■ country where, be it observed, foreign relations being in the hands if the national government, there are real federal functions to be (lis- ^m charged. Hut the other modern Senates are intendiMl imitations of tlie House of Lords, and, one and all, begotten of the same illusion. Thi' House of Lords is not a Senate, it is an old Feudal Estate, emlMKlyiiij: not a political ca.st of mind different from that i'mb(.died in the Hou^e of Commons, but a different interest; and, at the dictate of that inter- est resisting to the uttermost every measure of change, from the Habeas Corpus Act, to the mitigation of the Criminal Code, and from the miti- E POWER. K N. A. ACT, 1807 — SKCT. 17, FKOKUAL LEGISLATIVE POWER. 07 j)Cli! aiul tuinultuoiis jility in cast lu' existence war a^fiiinst !lt of Gov- )A, consist- loiiate, aii'l lid, " It will acts of the f the design iis tl.? result liieli jxiive t(i A check on two Houses ediate needs itaiv Ifejire- is derived n Kejiublic. niliative of | rejtresenta- neiple, in a j le hands cf to he dis- itions of the Ksion. The endHMlyiiij.' the llouso that int(T- the Ilaheas ni the niiti- tioii of the Criminal Cmle, to rarliainentary Kefcirni. In no sinj^le stance, wo are jiersunded, can the Ilonse of Lords be shown to have scharged the supjiosed function of a Senate, by revising, in a calmer tiiios]>here and in the light of maturer wisdom, the msli resolutions of e I-ower House. Its nienibers are not older or mory sedate, much ss arc they better informed or wis(;r than those of the House of Com- lons. They are simply mcml»ers of an hereditary aristocracy main- lining the privileges of their order. For that object they readily asscd the most revolutionary measure, in the worst sen.se of the term, corded in the jxilitical history of England — the enfranchisement of le ignorant and invsjionsible ]i(i]iulace (tf the cities, by the Ti»ry IJeform ill of 1807. Vet the belief that they are a sage council of jiolitical evisidu, has given birth to the double-chambered theory, with the mul- ifarious embodiments of which, the liritish colonies and constitutional urope are ovi-rspread. I'nder elective instituti(tns there can be no real jxiwer but that hich rests on the suffrages of the ]ieople. Nominated Senates, such the French Senate under the I»est(jred Monarchy, and our Senate, iTe nullities with a latent iiossibility of mischief, which was manifested ;^he other day by the reiu.sal of the supplies for the jturixtse of a ]'arty up lunging the ccjuntry in ivil war. Kxjiectations that " the Crown " wouhl fill the Senate with men of dillerent class from tlunso who compos<;d the Lower House — men iiperior in any mental or social qualirication.s, less involved in the fac- ion light, better fitted to represent commercial interests or scientific rofession.s — were foredocmied to inevitable disappointment. "The r<»wn " is the Prime i\linister ; and no Prime ^linister who was at the tad of a i)arty cttuld helj) doing what the Prime Ministers on both ides have done — bestowing the nominations as rewards for party ser- I'ires, and making the Senate, what it is, a political infirmary. In England a j>eerage is now and then given for military or naval lerviccs, seldom for ])ublic services of any other kind ; and an extra law [old has sometimes been created when the House, as a CJourt of Law, as been in absolute need of reinforcement. Otherwise, the only r(iad o a jteerage is through laiuled wealth and a long course oi aieady voting 'or the leader of a party. I 08 II. X. A. ACT, 18G7 — SECT. 17, FEDERAL LEGISLATIVE TOWEK. I ■ Not in coni]»lications, rivalries and conflicts, is the necessary Con- servative inJluence to lie found, hut, in the jtrojier constitution of a sin- gle assemhly ; in rc'iiuirin^' such (lualitications (tn the part of its electors, filling it up hy such instaluients, so regulating its legislative ju'oceduro that it may he an orgiin of intelligence, not of jtassion, and give eti'ect to the settled convictions, not to the transient inijiulses, of the jteojile. Then, instead of inakiug the executive authority the prize of a jierjte- tual faction fight, let an executive council he regularly elected hy Parliament. The sejianition of the executive power from the legishi- tive is a dream, though Montesiiuieu has estiihlished the belief that ir is one of the great stn-urities i'oi lilieity. Already I'arliament ajipoints the Government, hut in a way which makes it the government of a jxirty, not of the nation. Of what sort of men is the Tjiper House specially to consist ? We have gone through projects without nundier, and volumes of discussion, yet we have never met with an answer t(» this essential (juestion. Klectoral or nominative machinery of all kinds is constructed, hut nohody seems to know, or think it netes.]<- nlar, remains the more jiowerful, will lie left destitute of its natural guides and citntrollers. From this (luandiiry, we really see n<» escapi'. However, the ]irin(i]ile of two ehiimliers is estahlished, and we take it as it is. The only way of giving tlu' Senate real power, and makiii.' it a living institution, is to introdtice the elective princijile ; and this!. so far as we can see, must he done in one of two ways, either In giving the election of Senators to the Lociil Legislatures, or hy giviii. it to the people of each I'rovince. Much might be said in favour (■: the Local Legislutures, if they were what they ought to be, genuiiii local councils, consisting of the worthies of the districts, and if tlici: niemlK'rs would vote freely. Hut, as it is, to give the election >. . senators to them would In; to jiut it into tiie jiocket of the leader ^ the party in power, which would be very much the reverse of an improvement on open and legal nominati'in by the I'rime i\Hnister <4 i the Dominion. To the ])eople of each I'rovince then, apparently, tli' election must lie given; and we must hope that the largeness of tin constituencies will, to some extent, bailie wirejiuUing, and that, petty local influences being swamped, the feeling which the people always liave for eminent leaders will prevail. The substitution of a term vi OWER. J, jj_ ,v. ACT, 1807 — SKCT. 18, FEPEHAL LEOISIATIVE POWER. 69 [issavy Con- ion of a sin- its electors, . e ])roce(lure (five etVect till' jieojile. ! of a jicrjif- elected Vty the leyisla- lelief that it L'lit a]>i»()ints rmnent of a insist ? We if discussion, ial ([uestion. itnu'ted, hut le, wliat the jiosed of 1)1(1 odious. Of le move ]in]i- I' its natural no escajJi', we take it and niakiu;: and this ■s, either by ir by givin.: in favour d he, «,'enuiiii and if thei; (lection ct th(! leader i : \erse of mi Minister ii larently, tli' eness of tic that, jietty [»j)le always »f a term of 'ears for life-tenure is a matter of course : it is nec(^ssary, both to lecnre a rotation of elections, and as a jiracticid ordinance of super- .nnuation. If the jnesent Senators are allowed to retain their seats, ,he cliiin«'e will be «,'entle, and all fear of revolution, if anybody is so itTvous as to entertain it, will be removed. — " Uystander," Toronto, — lay, ISSO, \K r.4. 18. Tlio Privileges, Iimniinities, and Powers to l)e lield, Ji',:[^"^«,^»-"'' iijovfd, and exercised by the Senate and by the House ol" Joininons and by the members tliereof respectively, sliall be inch as are from Time to Time delined by Act of the Parlia- lent of Canada, but so tbat^/*e same shall never e,rne7) Act we held, enjoyed and exercised by the Coniinoiis Mouse of Parliament, &,c." liy an Imiierial A(!t (28 & 29 Vict. c. (•:!) passed 29th dune, iSCt.j, " to remove doubts as to the validity of Colonial Laws," it was nactcd that "every Ke]»rcsL'nlative Legislature shall, in resptnit to the .'oloiiy undiir its jurisdiction, have, and he deemed at all times to have ad, full power to make Laws respecting the constitution, powers and ruceilure of such Le^'islature ; jirovideil that, such Liws shall have been assed in such manner and form as may from time to time he required lyany Act of I'arlianu'nt, Letters Patent, Order in Council, or Colonial MW, for the time heini^ in force in the said Colony." IJy Imperial Act 38 & 39 Vict. c. 38 (.see 39 Vict. Can. \k iv.), entitled, An Act to remove certain doubts with respect to the powers f the Parliament of Canada, muler Section 18 of the P. N. A. Act, 807 — that .section was repealed without prejuilice to any thing done ihereunder and a new section substituted in its place. The new section iffers from the rejiealed section by the leaving out the words in italii;s, " fhr sdiae skull nrvi'v exceed those nt the passing of this," and he substitution, in their place, of the words, " avy Act of the Porlia- lent of Canada defining nuch Privileges, Iviviunities and Powers \hall not confer any Privileijea, Immunities or Powers exceeding hose at the i>a8sing of such." 70 H. N. A. ACT, 18G7 — SKCT. 18, FEDIOIJAL LEGI^^LATIVR POWKll. 30 ft 31 Vict. c. 3 % It did not cloarly appear in the suppressed clause whether the word " this" referred to tlie Imperial Act of ('onfedenitioii enactint; the sup.! pressed clause, or to the Dominion Act delininij the I'rivileges, &c., of I the Houses of the Dominion Parliament. The text of the Amending,' Act is as follows : 38—39 Victoria, Chap. 38. AN ACT TO REMOVE CERTAIN DOURTS WITH RESPECT TO THE POWERS OF THE PARLIAMENT OK CANADA UNDER SECTION EIGHTEEN OF THE URITISH NORTH AMERICA ACT, 1867. [i9///>/y, 1875.] WIIERP:AS by Section Eiglitoen of The British North] America Act, 1867, it is provided jis follows : " The Privileges, Immunities and Powers to be held, en- " joyed and exercised by the Seiuite and by the House of '• Commons, and by tlie Members thereof respectively, shall " be such asare from time to time deKned bvActof the Parlia- " ment of Canada, but so that tbe same shall never exceed '* those at the passing of this Act held, enjoyed, and exercised "by the (.'ommons House of Parliament of the United King- " dom of Great Britain and Irehuid and by the Member^ " thereof:" And whereas doubts have arisen with regard to the power! of defming by an Act of the Parliament of Canada, in Purj suanet! of the said section, the said Privileges, Powers, orj Innnunities ; and it is expedient to remove such doubts : Be it therefore enacted by the Queen's Most Excellent! Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Pai-j liament assembled, and by the authority of the same, as fol-j lows : — 1, Section Eighteen of the British North America Act] s/h!Tioiuh"'.V;Ji) 18C7, is hereby rei)ealed, without ])reiudice to anvthiiii; ft 31 Vict. t. 3. ' . . . . " "' done under that suction, and the following section shall U'| substituted for the section so repealed. The Privileges, Immunities and Powers to be held! enjoyed and exercised by the Senate and by the House ofj .SiibMitutlon New 8<-ctiuii f" LCt, POWER, iier the word ) iug the. Hn]f] ,ego3, &c., of I 'OWF.RS OF HTEEN >, 1875O tish NorttI e hold, en- i House ofi ively, shall! the Piirlia-I ver exceedl i\ exercised I lited King-; e Members! ) the powerj la, in Pur- 1 Powers, or| loubts : Excelleiitl the Lords! resent Par- Unie, us Ibl-I iierica Act.i anythiiii: a shall bej be held! c House oil B. N. A. ACT, 18G7— SF.CT. 18, FEDERAL LEGISLATIVE POWEI!. 71 ;!oniinons, and by the Members thereof respectively, shall ae such as are IVoin time to time delined by Act of the Par- liament of Canada, but so that any Act of the Parliament ot Canada defining such Privileges,Iminuiiities and Powers shall lot confer any Privileges, Immunities or Powers exceed- ing those at the passing ol" such Act, held, enjoyed ami exer- ;ised by the Commons House of Parliament of the United kingdom of Great Britain and Ireland, and by the Members thereof. 2. The Act of the Parliament of Canada passed in the conHmation \ oJ Aclotl'arlltt- fchirty-lirst year of the Reign of Her present Majesty, t:hapter^j''J^*'^f*^n««'a, twenty-lour, intituled " An Act to provide for oaths to wit-'^*" r iicsses being administered in certain cases for tin* purposes \' of either House of Parliament," shall l)e deemed to be valid, md to have been valid ns from the date at which the royal jissent was given thereto l)y the Governor-General of the )()ininion of Canada. 3. This Act may be cited as " The Parliament of Canada >.,,„rtnfio. Let, 1870." No action has been taken by tlie Dominion Parliament in [nirsuaneo [)f the ]M)\ver conferred by this new section. The corresponding section in the Constitutional Act of Victoria iias received the Judicial coustruclion of tlunr Lordshiiis of the Privy Council, in /)/7^v. Movplitj, (1 Moorii's P. (J., N.S., 4S7). by section 35 of bhe Constitution Act of the Colony of Victoria (18 & 1!» Vict. c. oS) the L,egislature were authorized in language similar to section 18 of the i. N. A. Act "by any Act or Acts to define the Privileges, Innnuiiities, ind Powers, to be held enjoyed and exercised by the Council and As- Benibly, and by the members thereof respectively : Provided, that no buch ]»rivilege8, immunities or jutwers shall exceed those nov^ (i.e. at bhe()assiiig of the Constitution Act) held and enjoyed by tlu; Commons House of Parliament or the members thereof." And in pursuance of that rower enacted that their Privileges, Immunities and Powers should bo phe same as at the passing of the Constitution Act were held, exer- cised and enjoyed by the C(munons House of Parliament, &c. It was eld by their Lordships, that this enactment liad |)roperly defined those brivileges and suiliciently exercised the power delegated to the Local 72 H. N. A. ACT, 1807 — SECT. 18, FEDEUAL LEGISLATIVE POWER. Lo^^ishituns iiinl tli:it tliu privilej^e nf jirit'st for (.(jiiteinpt was rightly exer(!is(!(l iindt'r that Act. Also in The i^peaker of the Leffinlafive Ai*xcinhhj of Victoria v. Glttss (L. R. ;{ P. ( '., 5(54.) It was held liv their LopLships, as to matters connected witli I Miiteniiit, under Section 3.'» of the Constitutional Act of the Colony of Victoria and the Colonial Act definini,' the ]io\v(!rs of the Legislature ; that the Privileges and Powers <»f the Iniperial House of Conunons at the tinu; of the passing of tht* <'onstilutional Act were carricMJ oviir to the Legislative Assenildy of tlu' Colony, inchithng the privilegt^of judging what is (•onteini)t, and the ]K>wer of niuiniittiiig for contempt by a warrant stating generally that a contempt had t.-iken place without setting f(»rth the specific groun«ls of such commitment. In KicUey v. Ciirnon et al. (4 Moore P. C. 7")) it was held that a Colonial House of Assemhly (of the Island of X((wtound!and) docs not possess the jtower of arrest with the view to adjudicatiori uj>on a com- ])laint of contempt, as an incident to its functions; and that it has not the same exclusive" privilegt-s whi<"h the ancitnit Law of Kngland has anni'xed to the Imperial House of Parliamrnt ; and that such jtower must he expressly given l»y the Ini[>erial Statute creating the Colonial Legislature. Mr. IJaron Parke, in delivering th- Judgment remarked : " It is said, liowever, that this j>o\v»t helongs to tin- House of Commons in England, and this, it is eontendetl, affords an autliority for liolijing that it belongs as a legal inciflent, l»y thi» Common Law, to an Assemhly with analogous functions. Hut the reason why tlu; House of Com- mons lias this ])ower is not iK'cause it is a rejiresiMitative body with legislative functir)ns, but by virtue of ancient usage and ju'cscription, the lex cf covouetndo Ptirfoituputi which forms a part of the C(mi- nion Law of the land, and acrordinv' to which the High Court of Parlia- ment before its division, and the Hous(*s of Lords and Commons since, are invested with many p«'euliar privileges, that of punishment for con- tempt being one. And, iM-sides, this argument fntm analogy would prove too much, since it would lie «'iiually available in favor of the assumption, by the (,'ouncil of the Island, of the power of commitment (exercised by the House of lyirds), as well as in supy)ort of the right of impeachment by the Assembly, a claim for whicii there is not any color of foundation. Nor can tlie power be said to l»e incident to the Legislative Assem- bly by analogy to the English Coiirts of Record which possess it. This Assembly is no Court of Record, nor has it any judicial functions I n. N. A. ACT, ISn? — SECT, 18, FEDERAL LE(JI8LATIVE POWEU. 73 wliiiUiver ; and it is to be remarked tliat all those bodies wliich possess the power of adjudieatiou uitoii and punishing in a summary manner, contempts of tlieir authority, have judicial functions; and exercise tliis jiowi-ras incitU^it to tliose functions which they jtossess, except only the House of Commons, whose authority in this respect rests upon ancient usage. The case of Beaumovt v. Barrett (1 Moore's P. C. 59) was over- ruled by this decision, and this decision was followed in Feittou v. l[,inij,loa (II Moore's P. C. ;U7). In Doijlc, (Speaker of the House of Asse.nbly of Dominica) & Fal- coner (L. It., 1 P. C. 328)., their Lordsliips held, following the case of Kit'lly & Carson, that the Legislative Assemblies in the British (Jolo- uies, in the absence of exj)ress grant, have no jiower to jjunish for con- tempts (Committed in their presence or Iniyond their walls, for the reason that tiiis is the exerci.se of a judicial power. Sir .lames W. Colvilh, who delivered the judgment of their Lordships, said : — It must bo conceded that the Common Lt,w sanctions the exercise of the preroga- tive by which the Assembly has been created, and that the principle of the Common Law, which is embodied in tlie maxim " Quando lex aliquuf coHceditf cuncedere videtur et illiid, sine quo res ij)sa, esse ituii f)i)test " api»lies to the body so created. J5ut it is neci'ssary to dislinguisli between a power to punish for a contempt, which is a judicial power, and a power to remove any obstruction ottered to the delil)eration3 or proper action of a Legislative body during its sitting, which last power is necessary for self-preservation. If a member of a Colonial House of Assembly is guilty of disonlerly (jonduct in the House whilst sitting, he may be removed, or excluded for a time, cr even e.\i»elled. In Landers v. Wood worth ('?. Can. S. C, 158) it was hehl, on appeal, atlirming the .Judgment of the Supreme Court of Nova Scoti.a, that the Legislative Assembly of tin; Province of Nova Scotia, in the absence of express gmnt, has no power to remove one of its memlters for contempt unless he is actually obstructing the Ijusiness of the House, following in this resjject the ruling of thoir Lordships of the Privy Council in the cases above cited. In Stockdide v. //aiKHurd, (9 Ad. & Kl., j). 1) : Held — 1. That a Court of Law is competent to determine whether or not the Hduso of Conimons has such privileges, as will support a defence to an action against a [lublisher for libel. 74 I». N. A. ACT, 1867 — SECT. 18, 10, FEDEIJAL LEGISLATIVE POWER. 2. Tlmt till' cstaMislu'd laws of the land cannot be snixTSt'ded by a i Resolution of either Honse alone, and that the House of Commons by ordering,' a rejxtrt to be printed carty should deserve the s(!V(M'est jienalties, yet, his otVence beiiii: committed the day before a proro^^at ion, if the House ordered his imprisonment but for a week, every (Jourt in Westminster I fall, and every judge of all the Courts, would be bound to discharge him on IlahfnH Covinis. In Jinnh'tf v. Ahhutt, 14 Kast l^S, (affirmed in the House of Lords,) where the action was for false imprisonment, it was held that the House of Commons being acom]>etent adjudicating Court to commit for contt'mpts, the adjudication could not be inipiireil into by another Court. Lord EUenlwrough, in delivering judgnu-nt, said : — The power of the Hou.se of Commons to commit for conteinjit, stands upon the grountl of reason and necessity indept-nilent of any p(»sitive authorities on the subject. It is also made out by the evidence of usage and jiractice, by legislative .sanction and recognition, and by the judgment of tlie Courts of Law in a long course of well established precedents and authorities. (Aftirmed, 5 Dow, 199.) It iil.so apptinr) by the following; authorifios tliat evori th« Jmliciary, in the ni] mi II istr.it ion of justice, can only pmiish for contenipts in accordance witli the cstalilishod procedure in thccascorcriiniiial offences. In ro Pollard (L. II., 2 P.O., 10(5), — one of Her .Majesty's Counsel at the Colony of Iloiig KiMiLr, whose ca.se was, on j>etitinn. referred hy the Crown to the.Iiidieial CiiinniiMee — it w.ishelil hy their liorilsliip.s that no pcr.«on .should be pnnislicd feetiv ly, and niakin;? tlic normal number 70, with the possibility of an increase to S2. under seetion 2. with 2 Senators, and British Columbia wns admitted in 1S71, with 3 Senators, the total number uf Senators being now 77. 22. In relation to the constitnti(m of the Senate, Canada K.-prp.piitMmn shall be deemed to consist of Three Divisions : ii. .v.mu. 1 . Ontario ; 2. Quebec ; S. The Maritime Provinces, Nova Scotia and New Briniswick ; which Three Divisions shall (snbject to the Provisions of this Act) be ecjually represented in the Senate as follows ; Ontario by Twenty-four Senators ; Quebec by Twenty-four Senators ; and the Maritime Provinces by Twenty-four Senators, Twelve thereof representing Nova Scotia, and Twelve thereof representing New Brunswick. In the case of Quebec each of the Twenty-four Senators representing that Province shall be appointed for One of the Twenty-four Electoral Divisions of Lower Canada specilii^d in Si'hedide A to Chapter One of the Consolidated Statutes of Canada. It will be remarked that, except in the Province of Quebec, flic Senators represent no particular localities in their Provinces. But clcctor.d divisions are determined, for each Senator in the Province of Quebec, and the consef|uenco8 of that distinction, which cannot be otherwise than detrimental, are dttvolopod in sub sec. 6 of the following section : I. :; I ■■. i 1 (jii«lillc»ttfini> I 7G n. x. A. ACT, 1867 — sect. 23, fedehal lkcjislative poweu. 23. The qualifications of a Soiiiitor .shall bo aH follows: (I.) He Hhall he of the full Age of Thirty years ; (2.) He shall he either a natural-horn Suhject of the Queen, or a Suhject of the Queen natural i/ed hy an Act of the Parliament of (ireat Britain, or of the Parliament of the Unitetl Kingdom of Great Britain niul Ireland, or of the Ler iii Ihf r„<' mill/ he] of liic Tnliie of four thousand dollar) over and above all rents, diifs, drbtj, nii)rtgu|;r9, charge!), and inciimbraticcg, diip or payable out of or charged on or atfectinu the 8unie, and that I have not colliisively or coloiirahly obtained a title to or become puHiteiiHeil of the said lands and tenements, or any part thereof, for the |Mirpoge of enabling nic to tM'come a member of the Senate of Canada (or an tin- riitf mmj hf), anil that my real and personal property are together worth four thousand dollars over and above my debia and liabilities. ».2 the noble Duke HUj^szested the adoption of the same policy for the constitution of the Upjier House of that Island. The basis in Canada of the (jualifications of the members of u Senate, not nomi. nated by the people, could not be other than a property qualification. But tho limited amount required ($4,000) and the dubious character uiven to the pro- perty by s.s .S, and s.s 4, shows how perplexed were theframers of tiiu constitu- tion, when adopting even that low figure. In every other part of tho Dominion except the Province of Quebec, it is a matter of indifference where the possible Senator resides, provided it be in h\ V' ■■!'.' •'1 f <:.i I'l \ \ I I r 78 n. N. A. ACT, 1807 — SECT. 23, i kukiial lkcislative i-owek. tlic Province for which he is np{ioiiiU-d, (x.s 5) and wIkto liin |iro|>«>i-ty is hiliiiitcd. Ill Quebec the Senator niUNt eitlicr li:tvc hit* {iroperty i(U:ililiciitiitn in the rlietiiriil divittion i'or wliicli he Im )i]i]Miinted, or he luunt be a resident in that division. There wonid be some reaMtnahle ground i'or tliis distinction if, on aeenuntola peculiar training', tiie clasH of men from uiium Senators may be ehoKen, were more numerouH in Quebec than unywhere else. Unfortunately the eiinlrary state of thin^H prevailH. There urc Dot to he found, in the I'ru- viitee ol Quebec, the nuuierouH interior cities and towns, which exist in Ontario, und ]ierha|M in otiier provinces, where, nianid'ucturing or coninierciui pursuitH uiid municipal institutions are developiu;; that extended amount of praelioul kno\vled<>e, which is uceetisa'y tu tit men for public and piirliamentary life. 'Die result may not at once be produced of an inferior class of Senators repre- sentinn the Province of Quebec, but it is inevitable in thelulure, because, instead of the wide Held of selection offerred in < ' irovinces, the senators from Quebec will have to be taken out of a very re8tii(^<''lclu.>*H of candidates. in the Debates on Confederation in the Prov. Purl, uf Canada (p.^i)), Mr. George lirown said: — It is olijc'C'tcd Unit in tlu; coii.^titntioii of the rjipiT House, .so fur a.s Lower Uiiiiiulii is concerned, the existing electonil divisions are to be liiiiintained, while, iis legaids I'liper Canada, they are to be abolished; tliat the members from Lower Canada sire to sit as representing the divisions in which they reside or have their jtroperty (Hialilication, while in Upper Canada tliere is no such arrangement. Undou})t(!dly tliis is the fact ; it has Ixjen so arranged to suit the peculiar position of this section of the province. Our Lower Canada friends felt that they had French Canailian interests and liritish interests to be protected, and they conceived that the e.visting system of electoral divisions would give jaotection to the.se separate interests. We, in Upper Canada, on the other hand, were quite conttMit that they should settle that among themselves, and maintain their existing division if they chose. But, so far as we in the west were concerned, we had no stich separate interests to protect, we had no diversities of origin or language to reconcile, and we felt that the true interest of Upi)er Canada, was, that her very Ix'st men should Ix' sent to the Legisla- tive Council,wherever they might happen to reside,or wherever their ]»ro- perty was located. If there is one evil in the American system which in my mind stands out pre-eminently as its greatest defect, except universal suffrage, it is, that under their con.stitution the representatives of the people must reside in the constituencies for which they sit. The result is, that a public nmn, no matter what his talent or what his j)Osition, no matter how necessary it may be for the interest of the country that he should be in public life, unless he happens to belong HuniiiK DKOf 8i'Uiiti'r. n. N. A. ACT, 1807 — SECT. 24, 2;", fkkkral leoislative power. 79 to tho politicul i»iirty l»<"l»iliir for tljc tiiiii' ln-iii;,' in tlu' constituency wluTc ho vt'sitltiH, canjiot possibly fincl n scat in Con^Tcss. And over and over iij,'ain liiive we sei-n the very best men of tliat Ht'|iiiblic', tho most iUiistrioiis nunnts recorded in its ]K)liti(-iil annals, ilrivcii out of the le;,'islalure of their country, simply itecaiise the majority in tho electoral division in which they lived was (»f a dilVercnt political party from them. I do think the lirilish system intiiiitely better than that, securin;», as it does, that public men may Imj trained to public; life, with the assured conviction that, if they prove tliomsel .•> worthy of jiublic couliilence and j,'ain a position in the country, .onstituencies will always Ix* found to avail ihenistdves of their services, whatever be tho politic d party to which tlmy may adhere." 24. The Governor- Geiienil shall IVoni Time to Tiiiic, in tiic (Queen's nainc, hy In.striiineiit under tiie Great Seal of Canada, sutninon (lualKicd jumsoms to tlie Senate; and, subject to the Provisions of this Act, every per.son so siuniuoned shall become and be a Member of the Senate and a Senator. 25. Such i)er8on8 shall be First summoned to the Senate s„;nmoi.. of as the Queen by Warrant umlor Her Majesty's Royal Sij^n oislimt'oH. Manual thinks (it to approve, and their names shall bo inserted in the Queen's Proclamation of Union. Mr. lirinlit, discussing in the Ibaise uf Coniiuons that part of the sclienic wliicli .'^iib'-titutcil a Senate appointed by the Crown for an t-kctive body, flaid : With re<,'ard to this particular case, tho rij,'ht hon. gentleman said, "it is t<» be observed that Canada had had a nominated Council, and had changed it for an elected one, and surely they had a right, if they jileased, to go back from an elected Council to a nominated Council." Well, no body denies that; but ncdiody jjretends, that tho ]te(»ple of Canada prefer a nominated Council to an elected Council. And all the wisdom of the wise men to whom the right hon. gentleman, the Member forO.xford (Mr. Cardwell) has referred in such glowing terms, — unless the exiti^.-ience of present and past times goes for nothing, — is hut folly, if they have come to the conclusion that a nominated Cuuucil on that cf)ntineut must be better than an elected Council. Still, if they wish it, 1 should not interfere and prevent it. 15ut I venture to say that the clause enabling the Governor General and his Cabinet to put seventy -two men in that Council for life, in.serts into the Mhole scheme the genu of a malady which will spread, and which, ! 1 80 II. N. A. ACT, l.Sr.7 — SK<;T. 24, 2r», FKItKIUI. I-F.(JISLATIVE POWKK. lh-fr»if very loiij,', will n'«|iiii(! an iiltcriitiMii of tlii.s Act ami of the ci'iistitiitioii of this new (.'onrcticnilioii. In uiiotlicr pnrt of his speech Mr Bright HuiJ : I n-j^rct very iiiiu-h that they hav(! i.ot a«h)iit<'nty-two st^Teotyped I'rovineial Peers in Canada will cones|Hin(l aii. 2rj."() With a (lovernor (leneral appoijitetl liy the ('rnwfi ; with I^K-al (Jovernors appointed by the (Jrown ; with Le<,'islativ(! ( 'oiincils, in th'- ;^<'neriil Le^'islatiire and in all the I'rovinces n(!l;,'iiini, wlHiVe tlu; (-'((nstitiition is aliiK'st ii fdc-NitnUc, of tliiil (iC Knj,'liiii(I, hut when; tlicii- is uu iiii.st. (>7\.) Il Ihnise of j/»nls i">isl<'d the ]K)pular (h'niand for nd'orni, and how /^ vui dithcnlties were lhreateii(>d. At last, in iHli^i, the a<{itation had lH!(;onie so^rcat tlial the (iuvcrnnient det •rniined to nominate a snlficieiit nninher of peers to Sfciirc the passa;4»( of tlie lieforin liill. The ineinhers of the House of l-urds hail to rhoose hetween allowinj^ the nieasnn* li' herorne law, or see their intliieuee destroyed hy the addition of an indetinite iiundNT of iniiiiliers. They j»referred thi! first alternativ(?, and thereliy (piieted an exeitcinent, which if not checked in time, nii},'ht huvi f'.'^'uted a revolu- titm in Kn^land. ximumniiiii' bvr of Siiim- ton. I < <-iiilc in be a(ly the .\et would apply an adci|uale remedy. That this view was stron^dy contirun-d hy the provisions ol' the JTlli Section, which sintw that the addition to the Senat(! is oidy to Ih; teui- ])oraiy,aiid that the Si-nati; is to lie r*-duc.ed to its usual numhenks soon OM iKHsilde, after the iit-eessity for the exiinMsu of the special |M)Wer hits IMLssed away ; thai, in coiisi-i|uen*;e, In; could not advise liirr Majt-sly to dirtMtt lln; proposed adtlitioii to tin- Senate, (l)uiii. S(;ss. I'apeis ol 1H77, No. <;h.) >r i.iM* 20- A S(MUitor hIiuII, Hiiltjcct to tli<> Provi.s'ioiiH of tliin A(;t, hull! Iiit4 IMiire in tlii' S«'!iiit<; lor Lifo. In the iKihaleH on (*onfed«-ralion in lie; I'rovincial I'.irliuliiiMit of t/'fiiiada, (p. 811 , Mr. (letirm! Ilrown xuid : Thai the liiiiitatioii of the iiumlNfrs in tin; I'pper I louse lies at tin IiBse of the whole .;onipact on which the .scdn-lue re: te frc<|ucnt i-liaii*;*! in the comiiosition of the rp|it;r lloiist;, iitid l\ the last three or four years of their term they would he anlieipat- iii<4 its cxpiriii*^' and anxiously looking to the Administration of (lii^ npiil:ir feelin;^ of the day { JMK A Si'iialor may, l).V Wriliii}^ iimW'r Iiis Iliiiid, addn'.ssiMJ u,*i-„Mi„n„i to tlio iiDVCM'iior (jc'Mcnil, |•l^^l^ll Ins I'laco in tlio iSonato, and thcrciipoii tlio saint! shall Ik; viu^aiit. d \\ 'A !(|, Tlic IMaro of a Senator KJiall hecoinu vacant in any of I In* lol lowing ('uses : 1. If for Two ('onsw.utivo Sessions ol IIim I'ailiaiiicnt lie fails to f^ivt! his AttcmlaiKM' in tin* S«'nat«' : 2. If hit takes an Oath or makes a Declaration or Ackiiow- iedj^iiK'ntol' Allejriiinee, Oheilienctt, or Adhereinu' to a Foreign iNiwer, or does an in't wherehy lie hecoines a Snhjeiit or (Jiti/en, or entitliul to tiie Uij^dits or I'rivi leges ol' a Snhjeetor Citizen of a Kortdgn Power : l>liiiiiialltin«U(>n ofSi'imtoM. I •■,1 .1 . I i 9 1^ 84 II. N. A, A(JT, 1 807 — HKCT. 31-30, FKDKUAL LK(;ISI,ATIVK I'OVVKIt. 3. ll'lio is luljiidf^cd IJiinknipt or In.solvciit, or ajJplicH for tin; IJonclit ofniiy Law rt'liitiiig to liiMolvoiit Disbtors, or l)(!roiiH'S !i pnhlK" DcriUiUci-. 'I. iriio Ih uttiiinti'd ol" Trt'iif'oii, or roiiv'ntteil of Kidoiiy or ofuny inriimoiis (.'linn* : f). iriic cciiHt'S to l)('«jiiiilili('(l ill r('S|KM't of PropiM'ty or of ncsidc'iicc; provided, (luitii S«'niitorn!iall not lu'dcciiu^d to have (!('a.st'd to Uc (|uali(ic'd in r('spe(;tof KcsidtMUM! hy icaMon onlv (d'lTiH rcsidin •; at tin? Scat of tint (iovimmi- nu'iit of ('anai>A wliih' holding an OUic*' ninh'r tluit (jovcriimt'iit ri'(|nirin}r his I'lcsiMiro there. .siimmnnii on *VL When a Viieiiiicy happens in the Senate, hy l{esijrna- Vacancy in S.- . i y . i ,i • ,1 / 1 , ■> 1 1 1 1 1 i«i<.. tion, Death or otiierwise, th(^ dovernor deneral shjill, hy Snininons to a (it and ijiialiried p<>rson, (ill the Vacancy. guiMtinnii iiK to i(i{. If any (Question arises respectinH nil iiii|i liiiiisiMif (/'oin- iiioiiH iiikI tliu Sciiiilor-'. Any pi'i-.siiii filliii<.' .111 nflirc dC ciiioliiinciit iimli!!' Ilit> (inviThiiuMit (<'X ; wliilit u Scii.ttitr is nut imiiii- |)t'llril ((( v.u!,'ilt! Iiis scut oil <'iitciiiiii into a (riiiilirict with tlic (lovrniiiiciit, liiit 8iiii|)l\ iiiiMii's a [Hiiiiilty (if $2011 for ttvitry |.;itA I, MlCISl.ATIVr, |:t\VKI£. 85 Tin; Ifoune (tj iUniiimm^. Ji7. TIk! IIouHt' <»r (JomiijoriH .siiiill, Hiihjcr.t to tlic provi-fonKiiiuiion . Ildiiwof Hioiisol' this Ai't, (M)ii.sist. ol Oin' liiimln'd iuid (!iglity-oiM' iiMMri- *7^u^',j'^'" In-rs, of whom Ki;i:lity-t\vo .slmll Ix? chuitcd lor Ontario, .sixty- live lor Qiu'Ik'C, NiiH't«!('n lor Nova S(U)tiii, and Kil'tccn for New IJrunHwit'k. In |S72, liy till! !)i)iiiiiii<>n Aft, .'{.') V.,(!. lU, tlm n-pn'Mciitaliitii in tlirlloUHe of ('(MiiiiKiiis was i(!ailjiiHli!il im arccimil «'nt,i'ii a.-, follows . I'roviiuiii ol" Out arid KM •*^ C^IK'IXM". (ifl " Novii S(;<)tiii 21 •• New ItriniHwick Id ♦• I'riiice Kdwiiiil Isliiiid (J " nrilisli Coliimliiu " Manitoba 4 206 i{it. T|io Governor (ItMieral shall IVoin time to time, in th(^ Siiniinnnlng Queen's Name, l»v InslrnmtMit nnder thi; j^reat Si^td of"*;."'"""'"' Canai>a. smnmon and call toj^»;ther the I lonse of Commons. I{9. A Senator shall not hi^ ea|)a.l)le of hein'' eh'cited or of Soniitorn mil to Kittin-f or votinj:; as a Memher of the Ilonsu of Commons. ;V." "*"""' ~ ~ of (;ulUIUUIM. 10- I'ntil the Parliament of (Janada otherwise provides, Ontario, Qnehee, Nova Scotia and New Hiiinswiek shall, r(>riii.i-i,nh.i.mr tlie l'in|ioses of the; Mleetion of Memhers to siM've in the House of ('ommons, he divided into ElectorAl Uistriets as follows: — • l.__().\TAHI(). Oiitiirio siiiill Ix' (llviilcil into the OuiinticH, UiiliiiKs or ('ounlics, ('ition, I'lirtH of Oitios, Hiiil Towns ciiiitiiuriilvd in liii! First Scliudiile to tliix Act, uitcli wlitTuof hIiiiII Ih* iiii Klcvt- iiritl DJHlriol, each auch District hh iiuiiiImti-iI in that i:iclu>(liilc \mn\i Kntitlcd lo r«>tiirii Ono .McMllllT. 2.— QIJKBK(^ QiM'liic shall b« diviilci into Hixly-Hvr KUtctonii ni!^tript^, cotnpimtMl of tlii- Sixty-live Kli-i'tiiriil DivisiuiiH into wiiii-li Ijdwit ('nuitilit is hi t|i(> |iiisHliif{ ol' tills Act divided iiii'Iit l-'iiiiptiT Two of till' ('onAolidiilcd Siatiitc!^ ol ('iitiiidii, ('hii|it('r .S'Vcnty-livc of llie ('oiiHoli- ie)>n, (y'hii|it(M- One, or Huy oilier Act Hiiieiidiiii^ the Hunie in Wnn- al tlio Union, so thai oiicli hiicIi Kltcloral DiviHion nhall be fur the i'liriiuaea of this Act liit Ulucl- oral District untitled to return One Member. [8il«^n C*ounli«-fi of Not* Scotia hIihII Ih' imi Klectornl Hislrlct. Tin* (/Oiinly (if llalilitx hIiuII tm «iitiileiinilii-i. t>. l{llKltl!ll. A. EXI.STIX«i KI.K* ToJlAI, DIVISIONS. CUUNTIICII. V,. f'url<'ton. 7. I'ririri' Kihvanl. H lliilton. ;*. Ki.Mcx. !!!■•!<«;» OK <*I>IN1IICH. 10. .Norlli lti-rt Ki'liiiK ol .Noriliiiinti--rUuU' 27. ^^'•v<( KhIiiik of Kl/in 2H. .North CiilinK of Wat<-r!oo. 2U. Soiilli KiiliiiK of Witirritio. :i(). Norili ItiiJihK of Iif4nt. Ml. South l(iif»rii. 'M, KuHt ItKiinx of Mi>t>llr* of Cornwiill thiereto uttacbviJ. H. N. A. ACT, 1«(»7 -MKCT, 40, KKHKIIAI, l.WilHLATlVK I'OWKU. 87 n. NKW KI.KOTOUAI. I>l VISIONS. 4t. Till! I'roviHiiiMiil Jmliciitl l>i)4tri<-l nl' Alifniiiii. Tli<- Oiiiiiity III' jiriiri- ii, Hint llil' II ■|i; Till! Shu 111 lliiliiii; (if Itrnri- In ciiiiMiHl of tin- Tiiwrislii|H of Kiiiriir>liiiiWiii<;|iiiliii|{ till' Villii({i' III Kiii('ikiiliiii-), lirri'ii'irU, Itraiit, lliii'nii, KiiiriiHs, ('iilt'i'Hi iiini ('iirrick. Till' l.'iiiiiily III lliiriiii, iliviili'il into Two llii|iii){.i, in Ih; ciiili'il rvi4|i(fi:livi;l) tlii; North nil'! S'liitli llii|iiiK'< '-- 17. Till' Norili l(iiliii|r lo (■oiiKi'i| of (>iii> rii'li, Tinki'1-iiiilli, Sliiiili-y, llav, l,'.-ii Till' Wi'.il UhIiiii^ In rniHi-il nf till- Tn\Mi'4lii|i'i nl DrlikWiili-, (/'iirruilnr, .\|i;li:iill', MiiHll, ami Kklml, iiiiil tin: Villii^'i- nl .•iitiillirny. (Till' KiiHl Killing In cniiMlHl III' Ihi' 'l'nwii.<(lii|is imw i'iiilirii<;i-i| Ihi'Dun, mill hi* linuinliMl iki it i* III |iri-.<4<'iit;, M Till' (Jniiiily nf Ijiuiiliton In mii-'i'il nf till' Tnwii-lii|is nf ilnHikiii|iict, Wiirwick, I'ly Ill- ton, Siiriiiit, Mnnn*, Kiiiiiskilli-n ami llrnoki', iiri>l ili<; Town nl Siirniii. f..' 'fill- (Innilly iif KiMII tn run nl nl llli' rnVMMlliji.'l nl l/liiklllKlii, DnVrr, KlHl Tllldiry, Uoliiiii'), Itiili-JKli, Hliil lliirwirli, mill llii- Tnwii nl I 'liiklliiilii. .'i ;. Till- l.'niiiii)' III Itnlliwi'll In roii-ii^i nl ilii ThwimIiIii'I -' nl /.niK*, (/aimli-ii Willi lliki (iori- llii'M-nf, Oifonl, mill llnw:tril ( laki-n Irmii llii- (.'niiiily nl Ki-lit) Till Cniiniy nf (ir<-y, iliviilnl inin Two Uiiliiij^.s, to Im: rallL-il ri-ri|i<-(;tivfly tin- Soiilli unit Nnrili iCiiliiiic* '■ .M. Till' Smitli l(ii|iii|{ In i-oii'iit nl llii; Tiiwii'4lii|i'i of lti>iiliiii;k, (il*!lii!l|f, Artoni<-Hin, ()ii|iM-y, .Vnrmaiiliy, Kiririnniil, I'rolo'i iiml Mi-I uirllinn. .'(.'t. Till' Nuith UiiliiiK to ron-iiHt ol tliii Town- lii|iH of <'i|, Kii|iliiitsiii, ilnliaiifl, Hniiit-Vinrrni, Syilinliiiiii, .'Millivaii, hriliy, aiiit K>-|i|ii'l, Sarawak, aii>l liinnki', miiilin|{i4, t.i lie i:all«ii n'S|torlJV(!ly IIid Smith ■nil .Nnrili Itiilinuri : Tlii Till' NnrlTi l(ii|iii|{ tn conxiHt nf lhi> TnWii'ilii|H nf Wallaci-, Kliiia, \,infiiu, Kllimt, MnrniiiKinn, anil Nnrlh l'',ik.<*llio|ii', ami tin- Tiiuii ol Stralfnril :'■■ Till' Sniltli lil'liliK In rn' riil nl lln Tiiwn-. Till' Sniltli idillli^ In cniiMiM nf tin- Tow i nl )i>ii-l|ill, illiI tl|i> TuWIIHllipri of (iiU'llih anil I'li-limli. Till' I'oiiiiiy of Norfolk, illviilix] into T»vo Iliiliiiij.'*, to hn calli-il roH|M'rtiv<'iy tlii! Snnlh »iii| Nnrili Kiilin^-i ; - |>I Till- S'i'itii Kilting; tn cnii'.i.'tt of tin- TowiMhiim of (''hitrlollevlllc, iloii|{lil»ii, VVal- lin(.'lnini, ami WnnillimiKc, with tin- linr nf llaliliiii'iii'l In i-n'HiDt nf the Tnwii-ihipHnr OiKtiila, Hi'iiovu, Vjnyugii Nnrili, Ciiyiiirit Sniilli, Kaynliaiii, \Val|inli' ami Dunn. lil Till- l!oiinly ol Moiirk to rnniisi nf lln- Tnwn-hiii" nl ('aiil>ornii)fh ami Mniillnn, aO'l Slii-rlirnciki-, ami tin- ViIIhkh nl' Duiivilli- CIiiKi'h Iroiii tin' l 'minty ol llall (iiiki-n Irniii tin rminly nf Wt-llaml; •: I Till! 1,'niiiiiy of l.inmlii tni-nii-iisi nf tin- TntviiHlii|iM of ('liiiton, Oriiiilhaiii, OriuiNhy, an'! I, I. Hill, >ni| ihi- Tnw n nf Si. ratliarim-M ' i; Till* I'otiiiiy of Wcllanil tn I'ln-ii t of tin! TiiwimImjih nf Itfriic I'rowlanil, liir'y, biid tliu VillttKi-H of (Jhi|i|icwa, (Jliftnu, Kurt Krii', Tlinrolii, Hinl Wisllitiiil. 88 ». N. A. ACT, 18(»7— 8KCT. 4(», IKKKKAI, LKUISLATIVK I'OWKU. (ST. The (?ouiitjr of I'c^l to cnimi'^i ortli<> TowtHliip!) of (ylilnf(Uiii;oU')]r, Toronto, uiid the (inre uf Toroiiti), niiil the Villnucs of ltrnni|iliiii uinl .Sircclsvillt). tiH. The (y'oiiiitv iirCiinlwi-Tl tn nmitHl nf (lit- Tiiwiirtlii|i.'i ol Albiiiii mill ('alrilnii (liikt'n from till! ('niini)' ol'i'tM-l;, kikI tli)* Towii!ilii|>s of AiijitU uiul Mkiio (taki-ii I'rDiii lli<- I'ltiiiily of MiiiioM*) The (/oiiiilv of SimciM-, ilividol into Two Ki;>. Th<* South Kidiii|{ to ronniiit of thf Tnwinhiin of Wi-.Ht (Jwilliiiihury, Ti'Ciiiiisuh, Inni:' of Itniilford. 7o. The North Hiding; to coii-idt nf the Towinhiiis of NottH\viiHu|;it, •Siiniiiditlf, Vi-.s|irn, Fh)8, Oro, Medoiite, Orilliit, nnd MiilrhediMli, Tiny nnd Tiiy, Itnlaklavn urid iiohin.Hon, and the Towo') of liHrrie and ('ollin({wu .i, Laxtoii, Ijiilterworih, Mucaiiliiy iii:d Draper, SoMierville., and .Morri.Hon, .Mu.4koka, .Moupk nnil Watt (taken from the t'lmniy ol Siincoe), and any oilier Kurveyeil Town^tiip't lyi'it( ti> the North of tlie Hiiid .North Uidiii)(. The (Niunty of l'e(ur>ioruuKli, dindud into Two Kidin^-t, to Ih.- called re.S|M!Ulively tlio WuMt and Kast UidiiiK: — 7.'i. The West KidiiiK t(» con-ii.'it of the Townstliips of Soiilli .MrthiintlM-rland), North Monaglian, Smith, and KntiiBinoru, and llitt Town of I'utcrliorou|{li. 74. The Ka«t Kidint{ to consixt of th<- Town-tliip4 of A'^phmli'l, Itelinont and Methuen, Doiiro, Diiinuier, (inlwar, Ifarrey, .Mir.dcn, Stanho|H- and Dv-iari, Otonaliee, and Snowdon, an The Wi'St Kidnii; to contiit of the Tdwii (.f llelleville, the Township of Sydney and the V.Uaire of Trenion. ?)*. The Kaat Kiding to consist of the Townships of Thurlow, Tyendinaga and Hud- gfrforil. 77. The Nortli Kid'ni; to cmitiiNt of the Townships of Uawdnri, lliiiitin|idon, Mudoc, Klzevir, Tudor, .Marmora ami hnke, and the Village of Slirljnt(, and any otlier NurveyeJ Townsliips lyioK to the Nortli ol the said North ItidinK ~iH. The (.'oiiiily ot Lennox to •oiisisl of the Towu'ihips of Uichmond, Adolliliustown, Nortli Fredi-r cksleirg, South Frudericksliurg, Kni<-st Town, and Amherst Nlami. and tliu Villajfe of .Vapanee. V.>. The l!ounly of Addington to consist of the Townships orCamdi-n, I'ortla id, Shef- field, llinehinhrooke, Kahnlar, Kt'iinebec, Olden, < '.so, AnKh'sen, llarrie, (Mare nlnii, I'almur- ■ton, KlIiiiKhain, Ahiiii^er, Mdler, (Janonto, l>eiilii)(li, Lon, Wolfe Ulaud, I'ittshiirKh ami liowe Island, and Siorrington. The County of Itenlntw, diriilu'l into Two KidinKS, to lie called resjiuvtively the South and Nixih KidiiiKS : - HI. The South Kidinff to consist of the Townships of MrNab, Maf(ot, Klithlield, Hroutjtiiiiu, Morton, Adniastoii, (iration, Malawatchan, (Irrinih, hyndoch, IU){lan, lladclilfe, tirudenell, Sebastopol, and the Villnj^es of Arnprior and Henfrew. Hi. The North KidinK •" consist of th" Townsliips yf II ihs, llromloy, Wcstmeath. Staf- ford, I'embroke, Willierforce, Alice. I'etawnwa, ituchanan, South AlKona, North Alcona, Fraser, McKay, Wylie, Kolph. Head, Maria, (>'lara, llat;K"i''y< Sherwood^ Hums and Kichards, and any other surveyed Towimhips lyin^f North-westerly of the said North Kidin|{- F ro-niijust thu Iiu|iro-toiilulion in lliu lloiiso of Commons. [ A»imnte,l to I4tk Jiiw, I872J WMKItRAH, hy the ('ensus of the yen r one thousand eight hundn-d and seventy-one. and in arconiance with the " Itntith North Amrr>di Art, IHti7," the I'rovinee of Ontario is entitled to six additional meintK-rs in the House of (/'onituon.s, the I'rovincu uf Nova tscoUa to two additiooal uembvrs, aud the i'ruviflce of New Uruuswick to one addi- II. N. A. MIT, 1S()7 — SKCT. JO, !■ KUKKA I, I.K(il.Sl,ATIVK POVVKIl. HU lioniil iiionibrr, tlif riiiiii> b(>iiif{ ,srnlljr in cxcniiit of tin- iiiiiiilii'r of tnt-inhtTst of tlii; llmise iif (.'oiiiiiiiiiH lor viu'U of tlif mihl I'Tovincc-i, im |iriiviili-'.H of ci-riuin ot till- e|i-<;ioriil iliHlriclH ; TIpTcliiri- Hit MiijiMiy, liy iiml willi llic uilvicc itnil coiisriil of llie .SiMi itc ail I lliiiHi* of Ooiniiiitiii of I'liiiuilik, cMurts ii.s follows : - 1 Till- lloiMi! of < 'oiiitiioiis ihitil coii-ii^t of Two liiiiiilnvl int'iiilicrH, <>l wlmiii Ki^hiv- (•i({lii ■iliiill i>c ili'ciril for (diiiirio, Six'jr-livc lor (.^iclicc, Twcniy- for .\i)vu Scoliii, .>ix- li-vii tor N'fMr ili'iiiHWK'k, Koiir for .M;tiiitoli " I'liii.t/i Smlk Amrnr'i An, IMiii, ' oiii'li r>'|i'i-.4oiitfil us it iMiwi.t, exci'jit wlitTu iiltcrol by tliiii Ail, us followt, Ihitt in to tv^y :— ONT.MMO. I Til)' ('oiinly of Huron sliiill lnMliviilni iuiu tlircc Itiili'i^s, to Ix; fiillnl ri'siii'divt'ly the \'irili,llii' ('('iiiir ikiiil tlif South Killing.', ifiirh of which sliitll bu nil KU'ctorui Oiiitricl mill .slmll rrhirii oii>- im-iiilicr ; I'll" Vorlu Ki liiiij; Io c llHi^^ of tin' Tow:i.slii|iH of llowiirk, Ashliflil, Wiot Wu\Taiiosli, K.m VV iwmiipsli, Morris mill Turiibrrry ; Til' t'ciiirc i;iiliii^{ to coiisisi of till- To\viishi|H of (Nilliurnf, llullet, .McKi!lo|i, TiH'k' rsiniili, (Jp'V, tii'' I'owii of (I.iili'ijrli .1 iil tli.- Villiiiiror .Sciif irili ; fill" S'liitli Ui'linj,' to coiisisi of tlu' rii\viislii|in of (ioiirricli, .Sliinl«y, Hay, SlfjilnJii, Uiliiii'iii' iiinl liii- N'illu);' of (JliitoM. i. I'lic <:• iiiily (il'(iri'y slmll In- iliviilnl iniotlinti- Uiiliii^,s to be ciiIIimI n-s|if('iivi-ly thi^ Niirili, till' Kuvviislii|is of llolliinil, •Sullivan, Myilonbuiii, |(«rl)v, .S.iniwiik. I\i'|>(n'l uiii| till' Town of Owi-i .Somiil ; tliu Ka-ii Itilni^r to (Miisist of III" Tiiwii| •■•, .\lrK>'lliir, Mi:i)oiiu'all, KiTjjii-oii, (Iiirliiii^, lla|j;i'riiiaii, t'loft, (!liii|iiiiaii, Ki-nir, Min-kcii/.H', A'ilson, Itrowii, Ulair, M'lWiM. (;iiw|n'r, (-'onii'i', I'.irry Nlaml, I'any .Sounil, .\iiiiiirk l.akr Ti-rriiory, .Mui^nni-iawiin, aiiil :ill oilii'r s irvcyivl towiislii|i-i \\\\\\i .N'orili of ilii' .N'lrtli UhI n^ ol Victoria, anit south of III" \i|iissint{ l)i.islrict-i, to bo piilli-il D'Hiifclivfly W't'st Toi'iiiiio, Kinl Toroniii a 111 (Ii'iilri? Toronio, <'iu;li of which fliall riitiirii unt' iii"inliiT : Wrsi Tiroiiio to oonsiHt of tli<> wariU, as r t pri'.si-iii uonMlliutuil, of St. Anilrew, St. (ii'orKi' aiil Si I'^iirick ; Kisi Toioiito Io <-oii'i8t of tilt! wants, iiii I'.t jircHiint cungtitiitcd, of Si. Daviil iiiiil St. liawri'iici' ; I'riitrc Toronto to cnnaisl uf tlii! warils, as at pp'^Mit cuiiHliliitcii, of St. Juhii uiiU St. Jnini's. "). Till- {!iiy of Hamilton Rhall nitiirn tw > iin'inbrs. •p. Til City iif Oitawa shall i-i'inrn two nii'.nix'rs. 7 Til)! Douiiir of llaliliiioinil shall co isist of ihc Towii!«liipM of Oneiila, HiMii'ca, ('ayiiKii Noiih, I'ayiijrii South, itainlimii aiiil Wal|>olt'. ><. Tliu ('oiiiiiy III Monrk shall consist o' .tin' TowiHhips of l'iiuboi'oii|;h, anil Moiilton Hnil SliiTlirnoK" aiiil Dunn, ami the Villii(;t' o Diiiiiivilli' (takrii Iroin ilio (^lunty of Habii- iiiitiiili, ihi- Towiishi|>s of ( 'aistor ami (iaiMslioroii^h (taken liniii iln- r• an Kh'c'oral District, !Hiil KJmll ri'liirn mu' im'iiibi'r; Tti" N'lrih IJi'liiiu to i^onsi-it of tin' Townships o*' MarvboroiiK'i, Miiilo, .\rlhur, liiitli^r and .V'liiirauth, ami ilic Villages of .Mount Kon-st a'tid .\rlhur; The ('i-nir<" UiiliiiK to coiisi.st 1 f the Towiisliijis of IMkiniflon, Klora, .\ii-liol, FcrKUii OiUTirii..a Wi'si, (iiirrafraxa Kusl, I'ccl miil tin- Villa({<' of Oran^cvilli' ; Til" Siiuili Killing to coiisiHl ol till! TownHhipH of I'ualiiich, (luiilpli, KrainoHa and Erin, ami the town of (iiiclph. Io. Tlic .N' irth Uiili'n^ of the (Joiiniy of Victoria Hliall includi' ami romiisl of thcsamo TiiWiisliips ns it did beforo the passing of this Act, except those included by ihiii .\ctia tli« Klectoral Di-tiirt yf Miiikoku. * 90 n, X. A. ACT, 1867 — sect. 40, KKKKItAr, I,K(iI«I,ATIVK roWKIt. II. TIk- Towimhiiis iirilniriiriy, lti<-liurilii, SIi'I, jliirnrt iiiui Joiip.«, ■hall b« milled to, iiikI iiirliiiii'il in Ihc Soiitli l(ii|iii)f ol' thf t'Diiiity of Iti'iifn-w, QIJKUKC. I. S«i miirli of ■iil)-s<>ftii)rii( tMri't)ly-4iili'o fill' 114 fi lii'cii to I lie t'li'cljiiii iif MciiiIntii nf tin' lloo-'V II III fvt-ry |«Hri i»f IIh> nitiil I'himIi HJiii-li, itl ilii! Ijiiji' "f H"' limrtinK oC llin Act, wr.i4 iiirl kIi-'I ill lii» I'oiiiily lit' I'iirliH lit, sliitil lii> i|i-tiiclifil rrniii (li<' ('uillily ol' I'urtiiciil, itiii| hirill If Ail«('ii«-<1 til the ('•iiiiiiy III' Cjiit'li r, tor tliu i-lfi'torul |iiir|Hi.4f.4 liiTi-iiitifl'oir »t:l lor III. J. TIm* City of Miiiitrciil nliitll Im- ilikMilnl into tliri"i' Kli'ctoriii IH^lricI* to Im- mlU-il n-H|HTtiv«*|y .M.>iitn-Hl Wi-itl, .Moiiircitl C-iitn', ittul .Moiilrvul Kikit,eiii-liiif wliirli liliiill return uiie ini-niluT ; .M»nir>-itl WiMt toconiiut uftliu wnril:i, ih utiiruavut uoiMtitiiti'il,iir.St. Antoinc Mini .St. Lawp-ice ; .Miinirriil IVntn* to roniii'il of ilu) wiinlM, »g at prcipnt ron' |irorl'iin: .<^i. Koniftti-e, Weitt and KaHt, or Noii II and \'l ; \Vlnni|H'i; mid .Saint Jolin, or No. |h ; Kildoiian. ur .\o lii; And ^liall n-iiirn one iih'IiiUt. '1. The Klertoral D.gtrict ol I'rovenclier :. A ine, iinil hIi.iII reltirii one iiieinlier. 3. The Klectoral IHslrirt of lii^Kur mIihII eoiigjit of all the )iettlenieiil.4 on the Ked Itiverand in the ne'ghltorliood iK'twee i the north Liitu of tin; Klertoral Di.'itrict of .Si-lkirk and tiie Dorthera frontier ol the I'ruvincu, including llio^e at lirokuu Head Uiver, and iliall rv-iurn one memlier. 4. The Klectoral Diatrirt of .Miin|iietle, hIiiiII coiihIhI of all the !iett|eiiieiit-i on tb« AuiDibo ne and Lake .Vlitnitoha, and nil other aettleiuunti) to tho wenward uf the we^ttcro line of x'oK Bl ciural UUtrict ol .Selkirk, and shall return one luenilNir. HIUTl.siI COLUMBIA. I. The Electoral DiHtrict of New \Ve-.iininiter shall con.sisi of ".New Wemniinster Dislrirt " and the " t'liaRt l>i>tricl,'' as deliiiod In a iiublic notice ig.nued from the Lnii'li and Wurki (lltire in ihe Kuiit l/ol'>ny, on the I'lth day id' Deeeniher, one thoii.siiiul vi-fH hundred and MXiy nini-, by the de.iire of the Qovernor, and piir|ioriin|j: to iie in acrorduuce with the |iriivisiii'ns uftlte thirty-ninth claiiKo of tho " .Miner.tl Ordinance, IHi<ii«tri<'l <>rVicli>riii hIiiiII (;i>iiKii, IM.'iH," mikI " Mi'tt'ljiiHJn Dirttrii'i (Mticiiil Mitp A. I> \XM," anil rimll rcinrn two ni('nilH-r4. ."> Tln' Klrrloral l>l^t^i(■t of Vancouvi-r tiliall ronsi^t ol ail lIu- D'niHiiiilrr of Vant'onvcr {•lnn cRixt iipon, Truiii, Hnd afliT tliu trrininHtion of tliid pa'si-nt t'xi.-tin^ I'liilianiciit. \\. riitil tlio I'lirriiiiiu'iit of (Jaxai)A othorwist' ijnividcs •'""•'""•neo ..r :ill Laws ill lone in tlif Hfvrrtil l*n)viiu'('s at tlu' Union, ri'- ' ^"riV^n",,""!)' lativf to tlio lollowiiij^ iMattors or any of tlii'in, naincly, — wu"'JlrVviaw' till' QiialilicatiimH iiiid Discjualilications of I'tTsoii.s to he t'lt'ctcd or to Hit or voto as inonihors ol" tlu; House of Assem- Itly or liCj^islative Asseinhly in tiie several Provinces, the Voters at EU'ctions of siicli Meinhers, tlie Oaths to he taken hy Voters, the UMturniiix Ollieers, their Powers and Duties, the Proeei'dings at Klectioiis, the Periotls (luring whieh Kiei'lions inav he eoiitinued, the Trial of (Controverted Hhv'tioiis, and ProcetMlings iiK^ident thereto, the Va<'atin;^ of Seats of Meinhers, and the Execution of new writs ill ease of Seats vacMited otherwisi^ than hy Dissolution, — shall respectively apply to Elections of MeinhcM's to serve ill the House «)f Coininons for the same several provinces. Provided that, until the I'aiTiaineiit ofC'ANAOA otln-rwiso provides, at any Election lor a Meinlu'r of fln^ House t)f(Joni- iiioiis for till' District of Algoina, in addition to Persons (pialilied hy the Law of the Provim-e ofCJANADA to vote, every Male IJritisli Suhject, aj^^ed Twenty-one years or up- wards, heinj^ a Housidiolder shall havt* a Vote. Siv St'cti..iiM 84 & r-'l». 42. For the First Electtion of Meinhers to serve in the xv,,„r„ri,ir,t House (d' (^uninons the (jovenior (Jciu'ral shall cause Writs to '"''''*"""; hi' issued hy such I'erson, in such Form, ami addrcss-d to Mich Keturniiig Ollicers as he thinks (it. The person issuing Writs iiiiiler this Section shall have the like Powers as are possessed a* the Union hy the OHiix'rs charged with the issuing of Writs for the Election of Mem- I IMAGE EVALUATION TEST TARGET (MT-3) ^ / // /. O Za ^ 1.0 I.I 1.25 |50 "^ m in 1^ IM 20 1.8 U IIIIII.6 V] <^ /i ^'^ » '> 7] '/ -^ m 6^ 92 n. N. A. ACT, 1867 — skct. 42-48, federal legislative power. As to Casual Vacancies. As to Election olSpoaker of Hou^'P of Communs. As to filling up Vacancy in Oflice of Speaker. Speaker to preside. Provision in casp of absence of Speaker. QuoTum of House Of CummoDB. bei's to serve in the respective House of Assembly or Legislative Assembly of the Province of Ciiniuhi, Nova Scotia, or New Brunswick; and the Returning Officers to whom Writs are directed under this Section shall have the like Powers as are possessed at the Union, by the Olficers charged with the returning of Writs for the Election of Members to serve in the same respective House of Assembly or Legislative Assembly. 43. In case a Vacancy in the Representation in the House of Commons of any Electoral District hap[)eiis before the Meeting of the Parliament, or after the Meeting of the Parliament before Provision is made by the Parliament in this Behalf, the Provisions of the last foregoing Section of this Act, shall extend and apply to the issuing and returning of a Writ in respect of such vacant District. 44. The House of Commons on its first assembling after a General Election sliall proceed with all practicable Speed to elect One of its Members to be Spetdcer. 45. In case of a Vacancy happening in the Office of Speaker by Death, Resignation, or otherwise, the House of Commons shall with all practicable Speed proceed to elect another of its Members to be Speaker. 40. The Speaker shall preside at all Meetings of the House of Commons. 47. Until the Parliament of Canada otherwise provides, in case of the Absence fcr any Reason of the Speaker from the Chair of the House of Commons, for a Period of Forty- eight consecutive hours, the House may elect another of its Members to act as Speaker, and the Member so elected shall, during the Continuance of such Absence of the Speaker, have and execute all the Powers, Privileges and Duties of Speaker. 48. The Presence of at least Twenty Members of the House of Commons shall be necessary to constitute a Meeting of the House for the Exercise of its Powers ; and for that Purpose the Speaker shall be reckoned as a Member. B. N. A. ACT, 1867 — SECT. 49-51, FEDERAL LEGISLATIVE POWER. 93 49. Questions arisinp; in the House of Commons shall be voting in decided by a Majority of voices other than that of the of Commons. Speaker, and when the voices are equal, but not otherwise, the Speaker shall have a Vote. 50. Every House of Commons shall continue for Five Years Duration of from the Day of the Return of the Writs for choosing the of commons. House (subject to be sooner dissolved by the Governor General) and no longer. 51. On the Completion of the Census in the Year One Docenniai rp- thousand eight hundred and seventy-one, and of each sul)sc- Representation quent Decennial Census, the Representation of the Four Provinces shall be re-adjusted by such authority, in such manner, and from such time, as the Parliament of Canada from time to time provides, subject and according to the following Rules : 1. Quebec shall have the fixed Number of Sixty-five Members : 2. There shall be assigned to each of the other Provinces, such a Number of Members as will bear the same pro- portion to the Number of its Population (ascertained at sucii Census) as the Number sixty-five bears to the Number of the Population of Quebec (so ascertained) : 3. In the Computation of the Number of Members for a Province, a Fractional Part, not exceeding One Half of the whole Number requisite for entitling the Pro- vince to a Member shall be disregarded ; but a Frac- tional Part, exceeding One Half of that Number, shall be equivalent to the Whole Number: 4. On any such Re-adjustment, the Number of Members for a Province shall not be reduced, unless the Pro- portion which the Number of the Population of the Province bore to the Number of the aggregate Popu- lation of Canada at the then last preceding Re-adjust- ment of the Number of Members for the Province, is 94 B. N. A, ACT, 18G7 — SECT. 51-54, FEDERAL LEGISLATIVE POWER. Approprintirn and Tax liillt). i'l ascertiiiiu'd at tlio then latest Census to be diminished by one-twentieth part or upwards : 5. Such Re-ad jiistment shall not take effect until the Termination of the then existing Parliament. See Sect. 37. Increase of 52- The Number of Members of the House of Commons Number in m- i rn- • i i i t-v i • n Of House of may be, irom lime to lime, increased by the Parliament oi Commons. . Canada, provided the proportionate Representation of the Provinces prescribed by this Act is not thereby disturbed. Money Votes ; Royal Assent. (See Sect. 90.) 53. Bills for appropriating any part of the Public Rev- enue, or for imposing any Tax or Impost, shall originate in the House of Commons. iieco-nmonda- 54- It shall uot bc lawful for tlic House of Commons to Money Votes, adopt or pass any Vote, Resolution, Address, or Bill for the appropriation of any part of the Public Hevenue, or of any Tax or Impost, to any purpose that has not first been recom- mended to that House by Message of the Governor General in the Session in which such Vote, Resolution, Address, or Bill is proposed. 'J'lic first clause of the 7th Section of Art. 1 of the Constitution of the Uni- ted States provides that : " All bills for raising revenue sliall originate in the House of Repre- sentatives, but the Senate may proi)ose or concur with aniendnient.s as on other bills." Story says (2 Com. U.S. Coast., .sect. 8?]). This provision, so far as it regards the right to originate, what are technically called vioiiey bills, is, beyond all question, borrowed from the British House of Commons. lUackstone (1 Comm. 169) says : " The true reason for this exclusive privilege of the House of Commons, arising from the spirit of our Constitution, seems to be this : the Lords, being a permanent here- ditary body, created at pleasure by the king, are supposed more liable to be influenced by the Crown, and when once influenced to continue so, than the Commons, who are a temporary elective body, freely nomi- nated by the people. It would therefore be extremely dangerous to give the Lords any power of framing new taxes for the subject ; it is B, N. A, ACT, 18G7 — SECT. 54, FEDERAL LEGISLATIVE POWER. 95 sufficient that they have a power of rejecting, if they think the Com- mons too lavish or improvident in their grants ; but so unreasonably jea- lous are the Commons of this valuable i>rivilege, that herein they will not suffer the other House to exert any power but that of rejecting ; they will not permit the least alteration or amendment to be made by the Lords to the mode of taxing the people by a money bill ; under which appellation are included all bills by which money is directed to be raised upon the subject, for any purpose or in any shape whatever." On the 7Ui of May, 18G8, it was decided by Speuker Cockburn : That the standing order of the House of Commons, England, declar- ing : " That this House will receive no petition for any sum relating to public service, or proceed upon any motion for a grant or charge ujion the Public Revenue, whether payable out of the Consolidated I'uiid or out of the moneys to be provided by Parliament, unless recommend- ed from the Crown," should be held in force in the House of Com- mons, Canada. No. 155, Speaker's Decisions, H. of Com. of Can. On the 19th April, 1869, it was decided by Speaker Cockburn : That a petition for the construction of a public work concluding with the prayer " that Your Honorable House will take such measures as will cause the obstructions to the navigation of the Ottawa River to be removed," is a petition asking simply for legislation, and is not a petition asking for money. No. 157, Speaker's Decisions of H. of Com. of Can. On the 10th April, 1871, it was decided by Speaker Cockburn : That a claim for damages against the Government may be referred to a select Committee ; but if their report should recommend the pay- ment of money, it cannot be concurred in by the House, unless upon the recommendation of the Governor General. No. 189, Speaker's Decisions, H. of Com. of Canada. On 26th February, 1875, it was decided by the Speaker: That an amendment to change the destination of a grant of money recommended by the Crown, was out of order. No. 219, Speaker's Decisions, H. of Com. of Canada. On 27th May, 1875, it was decided by the Speaker : That petitions praying for the passing of an Act authorizing the Commissioner of Customs to grant an exemption froTu duty cannot be received unless recommended by the Crown, as they involve a public charge. No. 225, Speaker's Decisions, H. of Com. of Canada. 9G li. N. A. ACT, 18G7 — SECT. 54-57, federal legislative rowEU. •.^'1 .*«-• Koyal Assent to Bill?, etc. On 5tli Aiiril, 1870, it was decided hy Speaker Cuckbiini, that a bill fioiu the Senate ciintaininjjf clau.se.s respecting public exi)enditure was not open t(j the ol)jection that such provisions could not originate in the Senate, when the last clause jtrovided " that nothing in this Act shall give authority to the Minister to cause expenditure until previously sanctioned by Parliament." (Xo. 172 Speaker's Decisions, House of Commons of Can.) Si'C Todil on Parl.Gov. in Col. (pp. 478-489) for full account of disjiutes over •' Money Bills," betwoiMi flic (Ip[ier and Lower Houses of the ]iel,iturcs of t^ontli Au.'^tralia and Tasmania, and for an intcrc'^ting narration of the " dead lock" iu Victoria, and also of the protracted contest in New Zealand, o\vin<^ to the evenly balanced state of parties in the Legislature. 55. Where a Bill passed by the Houses of the Parliumeiit is piesented to the Governor General lor the Queen's Assent, lie shall declare, according to his Discretion, but subject to the Provisions of this Act and to Her Majesty's Instructions, either that he assents thereto in the Queen's Name, or that he withholds the Queen's Assent, or that he reserves the Bill for the Signification of the Queen's pleasure. Difaiiowance 56. Where the Governor General assents to a Bill in the coiincii of Act Queen's name, he shall by the first convenient Opportunity accented to by ' '' . Generar ^^^^ ^^ autlicntic Copy of tlic Act to ouc of Her Majesty's Principal Secretaries of State, and if the Queen in Council, within Two Years after receipt thereof by the Secretary of State, thinks fit to Disallow the Act, such Disallowance (with a Certificate of the Secretary of State of the Day on which the Act was received by him), being signified by the Gov- ernor General by Speech or Message to each of the Houses of the Parliament or by Proclamation, shall annul the Act from and after the Day of such Signification. signiflcaiion of 57- A Bill rcscrved for the Signification of the Queen's Queen's o -v p'*"/^"^;^^^^^ pleasure shall not have any Force, unless and until, within Two Years from the Day on which it was presented to the Governor General for the Queen's assent, the Governor General signifies, by Speech or Message to each of the Houses of the Parliament, or by Proclamation, that it has received the Assent of the Queen in Council. 15. N. A. ACT, 18G7--SECT. 57-59, PnOVlNCIAL EXECUTIVE POWER. 97 An Entry of every sncli Speech, Message or Procliiniation sliiill I)e made in the Journal of each House, and a Duplicate thereof duly attested shall be delivered to the proper Ollicer to be kept among the Records of Canada. v.— PEOVINCIAL CONSTITUTIONS. Executive Power. 58. For each Province i re shall be an Officer, styled theAirpoinfmf.nf of Lieutenant Governor, appointed by the Governor General in (^"vn'o" of ' I i J Provinces. Council by Instrument under the Great Seal of Canada. 59. A Lieutenant Governor shall hold office during the Tenure of ofiicfi , O of Lieutenant pleasure of the Governor General ; but any Lieutenant Gov- Governor, ernor appointed after the commencement of the first session of the Parliament of Canada shall not be removable within Five years from his appointment, except for Cause assigned, which shall be communicated to him in writing within one month after the order for his removal is made, and shall be communicated by Message to the Senate and to the House of Commons within one week thereafter if the Parliament is then sitting, and if not, then within one week after the com- mencement of the next session of the Parliainent. In Lenoir & Ritcliie, 3 Can. Supremo Court R., p., the following distinction w;is ni;iclc by one of the Judt'os in cnninionting on the respective powers of the Executive of the Dominion Parlinmont and of the Provincial Legislatures. G wyn ne, J., said By the 91st Section it is declared that the Acts of the Dominion Parlianient shall bo made by the Queen, by and with the advice of the Senate and House of Commons, treating the Queen herself as an integral part of the Parliament ; whilst the 92nd Section enacts that the ' Legislatures * of the respective Provinces — that is to say the Lieutenant Governor and the Legislative Assembly in Provinces having but one House, and the Lieutenant Governor and the Legislative Council and Assembly in Provinces having two Houses — shall make laws in relation to matters coming within certain enumerated classes of subjects to which their jurisdiction is limited. Nothing can be plainer, as it seems to me, than that the several Provinces are subordinate to the Dominion Government, and that tiie Queen is no party to the laws made by those Local Legislatures. 98 B. N. A. ACT, 1867 — SECT. 59, PROVINCIAL EXECUTIVE TOWER. ■4 The use of Her Majesty's name by tliose Provincial autliorities is, by the Act, confined to the summoning and calling together the Legis- latures. The head of their Executive Government is not an officer appointed by Her ^lajesty, or holding any Commission from Her or in any manner jiersonally representing Her, but an ofticer of the Doniiaion Government appointed by the Governor General, acting under the advice of a Council whieli ihe Act constitutes the I'rivy Council of the Dominion. The Queen forms no part of the Provincial Legislatures as she does of the Dominion Parliament ; the Provincial Legislatures <:onsist in some Provinces of such subordinate executive officers and of a Legislative Assembly and in others of such executive officers and of a Legislative Council and Assembly. On the 25th July, 1879, the Hon. Luc Letcllierde St. Just, Lieut. Gover- nor oftlie Province of Quebec, was informed by the Dominion Under Secretary of State tliat, by an order of His Excelloncy-in-Council, passed on the same day, he was removed from iiis oflSce, and that the c:iusc assiiriied for .each removal, in conformity with the provisions of the 59th Section of the B.. N. A. Act of 18(j7, was, that after the vote of tlie House of Commons of the last session and that '>f the Senate during tlie preceding session, relative to his conduct asliicutciiant Governor, his usefulness as such had ceased. (See No. 68 of Dominion Sessional Papers of 18G8.) At a meeting of the members of the Royal Colonial Institute held at London, on the 20th January, 1880, His Grace the Duke of Manchester, wlio presided, remarking upon the clauses of the B. N. A. Act, (sec. 58 and 59) whicli provide that the Lieutenant Governors of the Provinces were to be appointed by the Governor General hij the adolce. of his Ministers, but were to be removable by the Governor General lolthout any advice from his Ministers on the subject, said : — " I think that, by the power of removal being limited to the Governor General without the advice of the Constitutional Ministry, it was intended that he should not be governed by political questions on that point or by local political questions of the Dominion, and that it should be a purely judicial function — that the Lieutenant Governors of the Provinces should only be removed for misgovernment or incai)a- city — but that all political questions should be kept clear of the question of the tenure of office by the Lieutenant Governors of Provinces. It seems to me that the object of making this difference was that, although the appointment of a Lieutenant Governor might be a political appointment — when it is made on the advice of the Dominion Ministry, H. N. A. ACT, 18G7 — SKCT. 50, PUOVINCIAL EXKCUTIVE I'OWKI!. 99 tho rcninviil of a Liuutuiirtiit Ciovornor of a Province should not be a political act, but should bo entirely independent of Dominion local pc fjlit les. h.'id be liC!^o views ii.'Ki Docn consiilorcd by the Tmpcrinl Government, jind answorcd in a (U'sputch of the Sccrctiiry of State for the Colonies ofSril July, 1879, in which we read : " It has been noticed that while, under section 58 of the Act, the appointment of a Lieutenant Governor is to be made " by the Govcrnov- Goneral-in-Council by instrument under the great seal of Canada," section 59 provides that " a Lieutenant Governor shall hold ottice during the pleasure of the Governor General," and much stress has been laid upon the supposed intenti(m of the Legislature in thus varying the language of these sections. But it must be remembered that other powers vested in a similar way by the statute in the Gov(!rnor ( icneral were clearly intended to be, and in practice are, exercised by and with the advice of his Ministers ; and, though the position of a Governor General would entitle his views on such a subject as that now under consideration to peculiar weight, yet Her Majesty's Government do not find anything in the circumstances which would justify him in depart- ing in this instance from the general rule, and declining to follow the decided and sustained opi'uon of his Ministers, who are responsible for the peace and good government of the whole Dominion, to the Parlia- ment, to whi^h, according to the 59th section of the statute, the cause assigned for the removal of a Lieutenant Governor, must be communi- cated." * * =K * « It will be clearly borne in mind that it was the inten- tion of the British North America Act, 1867, that the tenure of the high office of Lieutenant Governor should, as a rule, endure for the term of years specially mentioned, and that not only should the power of removal never be exercised except for grave cause, but that, the fact that the political opinions of a Lieutenant Governor had not been (luring his former career, in accordance with those held by any Dominion Ministry who might happen to succeed to power during his term of oilice, would afford no reason for its exercise." Mr. Todd, in his work on Purliamentarij Government in the Britixh Colo- nics, takes the same views as the Imperii! and Dominion Governments as re^iards the duty of the Governor General to act on the advice of his Cabinet in the dismissal of a Lieutenant Governor ; but says (p. 415) : " By the B. N. A. Act of 1867, the Crown transferred to the .iiral l^ominion Government and Parliament the measure of control pre- viously exercised by the Mother Country over the respective provinces ; 100 n. N. A. ACT, 18G7 — skct. 59, pkovincial exkcutive powku. and since their confederation the Imperial Government has declined to interfere directly in (piestions of lond concern in tlu; Provinces. l)..t this concession to the Fedcsral (loveriinient of Imperial rij^hts over the Provinces siinjdy ])]aces that (Joveriuuent in the position towards the Provincial Governments heretofore occupied hy the Crown. It does not increase or diminish the relative powers of either in resjiect to local affairs. This principle has l)een unreservedly established as regards Provincial legislation. It is well understood that each Province retains 'exclusive' rights of legishition witliin its assigned jurisdiction, tliat may not be interfered with by the Dominion Government, save only when Dominion interests or the ])ublic welfare in general might be injuriously aft'ected by such legislation. The same principle a])plies with equal force to acts of administra- tion. The spirit and intent of the B. N. A. Act equally forliid unnecessary interference by the Dominion Executive with Provincial rights in all matters of local self-government. This explains why a restraint is imposed by that Statute upon tlie prerogative right of dismissing a Lieutenant Governor. Such functionaries cannot be removed at pleasure, as freely as the Sovereign is at liberty to remove a colonial Governor. Tlie Act secures them against any such arbitrary exercise of the preroijative. They are oidy removable within five years of their appointment ' for cause assigned, which shall be communicated by message to the Senate and House of Commons ' at the earlie:;t possible period. The object of this proviso is manifestly to guard against a removal for insufficient cause, and to afford a guarantee to the Provinces that their chief Executive officer shall not be removed for any reason that would impair or infringe upon the cherished right of local self-govern- ment. But what, it may be asked, would be a sufficient cause for such a proceeding ? Undoubtedly, if a Lieutenant Governor overstepped his lawful powers he would be properly subject to dismissal. Or if he exercised his lawful powers in an improper and partial manner. But, let the siifficie: it cause be what it may, it is clear that the responsibility for the act of removal devolves upon the Governor General in Council ; and that the initiatory step to that ead should proceed from thence. To permit the initiative in such a momentous proceeding to be :ll M D. N. A. ACT, 1807 — SKCT. 59, PKOVINCIAL EXECUTIVE POWER, 101 unde'itiikeu by either House of I'mliainent would be uii undue inter- ference with Executive responsibility. It would weaken the just authority of the Crown, and produce a result for which noonci could be held actually responsible, Heroin, it is obvious that tlie Dominion Government was at fault in the procodui'e against Governor Letellier. They had abstained, as a {government, from calling M. Letellier to account. And when the two Houses of Parliamtint had passed resolu- tions calling for his removal, the Tremier informed the Governor General that, in the opinion of Ministers, ' it was not at all necessary, in order to justify their advice, to go behind the vote of Parliament: , . . even if their opinion had be(!n adverse to that arrived at by Parliament, it seems clear tliat they are bound to respect that decision, and to act upon it, as they have done, by advising the removal.' This statement involves a complete abnegation of Ministerial respon- sibility, and a surrender of the safeguards over individual rights which Ministerial responsibility is intended to afford. We are therefore compelled to conclude that the action taken for the removal of Lieutenant Governor Letellier was at variance with constitutional law and precedent, as well as contrary to the spirit and intent of the British North America Act ; inasmuch as it was initiated by Parliament and not by the Executive Government, and did not set forth the particular acts of misconduct for which his removal was deemed to be necessary. If we go behind the formal resolutions of Parliaineut, and inquire into the reasons urged by the advocjites of these resolutions for their adoption, we find it alleged, as a primary motive to justify the dismissal of the Lieutenant Governor, that, by his dismissal of his Ministers at a time when they were able to command a majority in Parliament, he had exercised an arbitrary and obsolete power, which was incompatible with the recognition of Responsible Government. The leader of the Opposition in the Commons, in advocating the adoption of the resolu- tion against Governor Letellier, said that, ' in England the power of dismissal of a Government having the confiilence of Parliament is gone forever, and that, if it were gone there, it ought never to have been attempted to be introduced into a colony under the British Crown.' It is scarcely necessary to point out that this rash and ill-considered declaration has no warrant either in the 'y or piactice- . . . The reserved powers of the Crown, which, like all prerogatives, are held in trust for the benefit of the people, clearly include the right i ■ 102 It. N. A. ACT, lS(i7 — SECT. T)',), I'lioVINTlAI, KXEOl'TIVK I'OWKlt. of u])]tL'iiliug, at all times, from a Ministry, stron<^ (it iiiay be) iji the jiossession of tli(3 confidence of the existing rarliamcnt to tlie electorate, who.se decision must nltimatt^ly ]»revail. Meanwhile the Crown is constitutionally competent to onsible for this act of the Crown. To deny to the Sovereign the possession of these reserved powers, however sehlom it may be needful to exercise them, would be, in ell'ect, to destroy tlie strength and vitality of the Monarchy. And this is enan( (jDvernor. the duties of his office, make and subscribe liefore the Gov- ;''''^»""«'»' enior General, or some person authorized by him, Oaths of allegiance and Office similar to those taken by the Governor General. See Sect. 11, 23 and 128. 62, The provisions of this Act referring to the Lieutenant Application ot Governor extend and apply to the Lieutenant Governor for ?pf"''g°t"o '^^" , . . , . Lieutenant- the time being of each Province, or other the chief Execu-^'"^''""'"- live Officer or Administrator for the time being carrying on I?:: ^1 \piioiiitinont of lixpcutivc < tmci turio Quctcc. l(i(; T?. X. A. ACT, 18G7 — Bi;cT. G2-G5, ruoviNciAL executive rowKR. tli(^ Government of the Province, by whatsoever title he is designated. ()3, The Executive Council of Ontario and of Quebec mlJi'I-K for On- ishall be composed of such persons as the Lieutenant (jovernor urio and _ ^ ^ ^ '■ fiom time to time thinks tit, and in the first insttnice of the inllowing officers, namely, — the Attorney General, the 8ecretar\' and Registrar of the Province, the Treasurer of the Province, the Commissioner of Crown Lands, and the Com- missioner of Agriculture and Public Works, with, in Quebec, the Speaker of the Legislative Council and the Solicitor General. Kxecutive Gov- Oi. The Constitution of the Executive authority in each Novascntia of tlic Proviuccs of Nova Scotia and New Brunswick shall, andNew Bruns- . . i • . • • • wick. subject to the provisions of this Act, c;)ntinue as it exists at the Union until altered under tiie authoritv of this Act. See Sect. 92, s.s. 1. Powers to be t'xercised by Lieutenant- Uovernor of 05. All powers, authorities and functions which under any Act of the Parliament of Great Britain, or of the I'arlia- ^e'c^ith'ad^ice"^^"^ of tho United Kingdom of Great Britain and Ireland, oraione. or of the Legislature of Upper Canada, Lower Canada, or Canada, were or are before or at the Union vested in or exercisable by the respective Governors or Lieutenant Gov- ernors of those Provinces, with the advice, (n- with the advice and consent of the respective Executive Councils thereof, or in conjunction with those Councils, or with any number of members thereof, or by those Governors or Lieute- nant Governors individually, shall, as I'ar as the same are capable of being exercised after the Union in relation to the Government of Ontario and Quebec respectively, be vested in and shall or may be exercised by the Lieutenant Gov- ernor of Ontario and Quebec respectively, with the advice, or with the advice and consent of or in conjunction with the res- pective Executive Councils or any members thereof, or by the Lieutenant Governor individually, as the ca^e requires subjcH nevertheless (except with respect to such as exist under Acts B. N. A. ACT, 18(37 — SECT. 65-70, PROVINCIAL LEGISLATIVE POWER. 107 of'tlie Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland) to be abol- ished or altered by the respective Legislatures of Ontario and Quebec. 06- The Provisions of this Act referring 'o the Lioute- Application of nant Governor in Council shall be construed as referring to inmnVto"^ ' tlie Lieutenant Governor of the Province acting bv and Vn,',VT'"'° with the advice of the Executive Council thereof. 07- The Governor General in Council may from time to Admimsf ration time apponit an Administrator to Lxecute the Olrice and ""''•^»"''"""- Functions of Lieutenant Governor during his Absence, Ill- ness, or other Inability. ()8. Unless and until the Executive Government of any scats of Pro- , . - . . , 1 T-k • viiicial Uoveni- Province otherwise directs with respect to that Province, ">«"'«• the seats of Government of the Provinces shall be as follows, namely, — of Ontario, the City of Toronto; of Quebec, the City of Quebec ; of Nova Scotia, the City of Halifax ; and of New Brunswick, the City of Fredericton. Legislative Power. 1.— ONTARIO. 09. There shall be a Legislature for Ontario consisting Legislature tor of the Lieutenant Governor and of one House, styled the Legislative Assembly of Ontario. 70. The Legislative Assembly of Ontario shall be com- Eipctomi Dis- posed of eighty-two members, to be elected to represent the eighty-two Electoral Districts set forth in the first schedule, to this Act. See Sect. 40, p. 86, for Scliedulo. Sir .Tolin A. Macdonald in a report of ord Novi-mbcr, ISHO, uives tlio opinion thai 110 power is conferred by Sec. 18 or other section of the h. N. A. Act, 1867, upon Proviiicitil Leiiislatures to define or establisli their privileires, jind that no g'Tieral powers of leuislation for the i^jod government of the Provinces arc givon to the Provincial LeLiislatnres. Their poN^ers are strietly litiiitoil to those con i'erreil by .Sections 9:i, l>3, 91 and 05. Sessional Papers, 1877, No. 8i), p. 202, 21;]. 1^^ H ,'! 108 B. N. A. ACT, 1867— SECT. 71, 72, PROVINCIAL LEGISLATIVE POWER. Lppislaturo for Quobcc. Constitiiflon of JX'ffislaUvo Couucil. 2.— QUEBEC. 71. There shall be a Legislature for Quebec con.si.sting of the Lieutenant Governor and of two Houses, styled the Legislative Council of Quebec and the Legislative Assembly of Quebec 72. The Legislative Council of Quebec shall be composed of twenty -four members, to be appointed by the Lieutenant Governor in the Queen's, name, by instrument under the Great Seal of Quebec, one being appointed to represent each of the twenty -four Electoral Divisions of Lower Canada- in this Act referred to, and each holding office for the term of his life, unless the Legislature of Quebec otherwise pro- vides under the provisions of this Act. The Legislative Council of Prince Edward Island lias recently been saved from extinction by the casting vote of its President. Tiiis body in that Province is elective, making it substantially diflForent from the Legislative Council of other Provinces that possess such institutions. There was a general ('lection for the Council in the summer of 1879, turning largely upon the question of the cotitinuance of the upper branch of the Legislature. Another election would likely be fatal to the Council, unless a verv inferior Lower House might bo thought by the people to require the other branch to sift its legislation. Indeed, a leading paper of the Province claims that the Legislative Council is the popular branch. Being elective, of course, the only motive the Islanders can have for its abolition is the cost of maintaining the Upper Chamber. In exptirte Danscreau, petitioner for a writ of Habeas corpus, held by the Q. B., appeal side, Montreal, (19 L. C. J. 210) : 1. That the Legislative Assembly of the Province of Quebec has power to comi)el the attendance of witnesses before it, and may order a witness to be taken into custody by the sergeant-at-arms if he refuses to attend Nvhen summoned. 2. The omission to state in the Speaker's warrant of arrest the groimds and reasons therefor is not a fatal defect. 3. The Quebec Statute, 33 Vic, c. 5, viz. : An Act to uphold the authority and dignity of the Houses of the Quebec Legislature and the indeiieudenee of the members thereof, and. to protect persons publish- ing Parliamentary papers, is within the powers of the Local Legis- lature. The 2nd sect, of that Act enacts that each House may com- mand and compel the attendance or production before such House or B. N. A. ACT, 1867 — SECT. 72-80, PROVINCIAL LEGISLATIVE POWER. 109 before any committee thereof of such persons, papers and things as it may deem necessary for any of its proceedings or deliberations. 73. The Qualifications of the Legislative Councillors of QuauHcBtion of '-' l>){ijiliUive Quebec shall be the same as those of the Senators for Quebec, ♦'"""""'o's. See Sect. 23. 74- The Place of a Legislative Councillor of Quebec shall Rosijfnntion, become vacant in the Cases, mutatis miitatidis, in which the&o. Place of Senator becomes vacant. 75. When a Vacancy happens in the Legislative Council vacancies. of Quebec, by Resignation, Death, or otherwise, the Lieute- nant Governor, in the Queen's Name, by Instrument under the Great Feal of Quebec, shall appoint a fit and qualified Person to fill the Vacancy. 76. If any Question arises respecting the Qualificatiwn of Questions as to • /-I • , . Vacancies, &q. a Legislative Councillor of Quebec, or a Vacancy in the Legis- lative Council of Quebec, the same shall be heard and deter- mined by the Legislative Council. 77t The Lieutenant Governor may from Time to Time, by speaker of tiie Instrument under the Great Seal of Quebec, appoint a Mem- t-ouiidi. ber of the Legislative Council of Quebec to be Speaker thereof, and may remove him and appoint another in his Stead. * 78, Until the Legislature of Quebec otherwise provides, Quorum of le- the presence of at least Ten Members of the Legislative cii!*'^^ Council, including the Speaker, shall be necessary to consti- tute a Meeting for the Exercise of its Powers. 70, Questions arising in the Legislative Council of Quebec voting in Leitif. Till 1.T11 •»«-•• I' XT • 11 n 1 latlve Council. shall be decided by a Majority ot Voices, and the Speaker shall in all cases have a Vote, and when the Voices are equal the Decision shall be deemed to be in the Negative. 80, The Legislative Assembly of Quebec shall be com- constitution of posed of Sixty-five Members, to be elected to represent the sembiy of ^ue- Sixty-five Electoral Divisions or Districts of Lower Canada in this Act referred to, subject to Alteration thereof by the Legislature of Quebec : Provided that it shall not be lawful 110 B. N. A. ACT, 18G7 — SFXT. 80-83, PROVINCIAL LKGISLATIVE POWER. ft to present to the Lieutenant Governor of Quebec for assent, any Bill for altering the Limits of any of the Electoral Divisions or Districts mentioned in the Second Schedule to this Act, unless the Second and Third Readings of such Bill have been passed in the Legislative Assembly with the concurrence of the Majority of the Members representing all those Electoral Divisions or Districts, and the Assent shall not be given to such Bill unless an Address has been presented by the Legislative Assembly to the Lieutenant Governor stating that it has been so passed. THE SECOND SCHEDULE. Pontiac. Ottawa. ArgenteiiiL Huntingdon. Missisqwui. Brome. I, Electoral DislricU of Quebec specially fixed. COCNTIES OF Shcflbr,!. Stanstead. (lomiiton. Wolfe and Richmond. Slegantic. Town of Sherbrooke. 3.— ONTARIO AND QUEBEC. First Pession of 81- The Legislatures of Ontario and Quebec respectively Legbiaturcs. ^j^.^^ ^^^ ^^^^^^ toiiether not later than Six Months after the Union. summonipg of 82. Tlic Licutcnant Governor of Ontario and of Quebec serabues. sliall IVom Tiuic to Time, in the Queen's Name, by Instru- ment under the Great Seal of the Provint . summon and call together the Legislative As.sembly of tlij Province. In Lenoir v. liifchie, 15 Can. L. J. N. S. 315, Gwynne, J., said: The use of Her ^Majesty's name by the Provincial Legislature, is, by the Act, confined to the summoning and calling together the Legisla- tures, and singularly, as it seems, this is by Sec. 82, rather by accident I apprehend, than design, confined to the Lieutenant Governors of Ontario and Quebec. Rertriction on 83. Until the Legislature of Ontario or of Quebec other- hoidereof office, ^ise provldes, a Person accepting or holding in Ontario or in Quebec any Office, Commission, or Employment, perma- nent or temporary, at the Nomination of the Lieutenant Governor, to which an annual Salo.ry, or any Fee, Allowance, B. N. A. ACT, 18G7 — SECT. 83, 84, PROVINCIAL LEGISLATIVE POWER. Ill Einoliiiiieiit, or Profit of any Kind or Amount whatever from the Province is attached, shall not he eligihle as a Memher of the Legislative Assemhly of the res})eotive Province, nor shall he sit or vote as such ; but nothing in this Section shall make ineligible any Person being a Mem- ber of the Executive Council of the respective Province, cr holding any of the following Offices, that is to say, the Offices of Attorney General, Secretary and Registrar of the Province, Treasurer of the Province, Commissioner of Crown Lands, and Commissioner of Agriculture and Public Works and in Quebec Solicitor General, or shall disqualify him to sit or vote in the House for which he is elected, provided he is elected while holding such office. 84. Until the Legislatures of Ontario and Quebec ros- contimmncp ot poctively otherwise provide, all Laws which at the Union are t'on laws. " in force in those Provinces respectively, relative to the fol- lowing matters, or any of them, namely, — the Qualifications and Dis(iualifications of Persons to be elected or to sit or vote as Members of the Assembly of Canada, the Qualifications or Disqualifications of Voters, the Oaths to be taken by Voters, the Returning Officers, their Powers and Duties, the Proceedings at Elections, the Periods during which such Elec- tions may be continued, and the Trial of controverted Elec- tions and the Proceedings incident thereto, the vacating of the Seats of Members, and the issuing and execution of new Writs in case of Seats vacated otherwise than by Dissolution — shall respectively apply to Elections of Members to serve in the respective Legislative Assemblies of Ontario jwid Quebec. Provided that, until the Legislature of Ontario otherwise provides, at any Election for a Member of the Legislative Assembly of Ontario for the district of Algoma, in addition to Persons qualified by the Law of the Province of Canada to vote, every Male British Subject, aged Twenty-one Years or upwards, being a Householder, shall have a Vote. In Lacroix v. Delisle (2 R. C. 233), held on demuncr : That Section 84, which refers to the clectiuu laws of the former 112 n. N. A, ACT, 1867 — sect. 84, puovincial legislative power. Province of Canada, not having made mention of the penalties imposed l)y C. S. C, ch. G, against public otKcers voting at Parliamentary elections, these penalties no longer exist according to the maxim t'xpresslo uaiiin exclasio est altcrhis ; and that in any case these penalties would not apply to officers of customs, voting at Provincial delations, as they were appointed by the Federal Government exclusively. Tlio case was afterwards brought before the Court of Pjvicw, in Montreal, inul tiiis juilgment was reversed. Thure wero, however, no further proceedinf^s, tlie c.ise having been settled. Another case, Barthe v. Chcvdlier, was shortly after subtnitted to the Snperior Court, in the District of iiichelieu. The defendant, u Registrar of DeeJs, appointed by the Provincial CTOvernmenl of Quebec, was prosecuted for liMviiii,' voted at an election of a mcinbcr for the Commons of Canada. Mr. ,Tnsti(;e Loranger, following the decision of the Court of Heview, condemned the defendant to pay a penalty of $2,000. Tlio case was brought before the Queen's Bench, sitting at Montreal; but before it came up for hearing; a tiiird case of a similar nature had originated in the District of Gaspe, ILimiUoti vs. Bciuchene, and was decided by the Appellate Court of Queen's Bench, sitting in Quebec. Eeauchenc, being a tide-waiter and searcher in Her Maje.sty's Customs, voted at an election of a member for the Legislative Assembly of the Province of Quebec, He was sued for the penalty of $2,000 imposed by sections I and 2 of ch. (5, C. S.C. The action was dismissed on demurrer, on the sjround that tlie defendant bcinj; an oflScer of the Dominion Government, he was not di.s(jualified from voting at the election of a local member. » In appeal, this judgment was confirmed, on the 8th March, 187.5, the Court holding that there was no penalty imposed by the B. N. A. Act (sect. 84 and 130). In delivering the judgment, C. J. Sir A. A. Dorion cited : — Savage vs. Deacon and Smyfhe & Deacon, (22 U. C, C. P., p. 441.) The judgment was confirmed without altering the reasons contained in it. In Savage v. Deacon (22 U. C, C. P., p. 441), Held:— That a city postmaster in the Province of Ontario was not liable to a penalty for voting at an election for a member of the Dominiou House of Commons. Gait, J., in delivering the Judgment of the Court, said, as the law stood at the time of the passing of the B. N. A. Act 1867, any post- master of any city in Upper Canada divided into wards, was prohibited from voting under a penalty of two thousand dollars. By the Federal Post Ofl&ce Act, 31 Vict. c. 10, all laws in force respecting the Postal Service at the date of Confederation except as to past matters were declared to be repealed. This repeal put an end to the disqualifications of B. N. A. ACT, 1867 — SECT. 84-89, PROVINCIAL LEGISLATIVE POWER. 113 postmasters under the former Act. As to the provibiou in the Dominion Act of 1871 declaring generally that the laws in force in the different Provinces at the Union relative to . . . elections shall continue to ajiply to elections (with certain exceptions), such a provision could not by itdelf revive a highly penal clause in a repealed Statute. 85. Every Le<»islative Assembly of Ontario and every nuratiou of Le- Legislative Assembly of Quebec shall continue for Pour Years ""e". from the Day of the Return of the Writs for choosing the same (subject nevertheless to either the Legislative Assembly of Ontario or the Legislative Assembly of Quebec being sooner dissolved by the Lieutenant Governor of the Province), and no longer. 86. There shall be a session of the Legislature of Ontario Yearly session if«iir»/-\i 1 • TT 1 of liegislature. and 01 that oi Quebec once at least in every Year, so that Twelve Months shall not intervene between the last Sitting of the Legislature in each Province in one Session and its first Sitting in the next Session. 87. The following provisions of this Act respecting the speaker, quo- House of Commons of Canada shall extend and apply to the Legislative Assemblies of Ontario and Quebec, that is to say, — the Provisions relating to the Election of a Speaker originally and on vacancies, the Duties of the Speaker, the Absence of the Speaker, the Quorum, and the Mode of Voting, as if those Provisions were here re-enacted and made appli- cable in Terms to each such Legislative Assembly. 4._N0VA SCOTIA AND NEW BRUNSWICK. 88. The Constitution of the Legislature of each of the consututionsot r\ ' -KT 1 • Legislatures of Provinces of Nova Scotia and New Brunswick shall, subject ^n'djjew Bruns- to the Provisions of this Act, continue as it exists at the Union '^^°^' until altered under the Authori ty of this Act ; and the House of Assembly of New Brunswick existing at the passing of this Act shall, unless sooner dissolved, continue for the Period for which it was elected. 5.— ONTARIO, QUEBEC, AND NOVA SCOTIA. 89. Each of the Lieutenant Governors of Ontario, Quebec,^'"* Eieotioiis. and Nova Scotia shall cause Writs to be issued for the First 114 It. N. A. ACT, 18G7 — SECT. 89-91, DISTRIBUTION OF rOWERS. Election of Members of the Logi.slative Assembly thereof in such Form and by such Person as he thinks fit, and at such time and addressed to such Returning Officer os the Gover- nor Genera] directs, and so that the First Election of Member of Assembly for any Electoral District or any Subdivision thereof shall be held at the same Time and at the same Places as the Election for a Member to serve in the House of Com- mons of Canada for that Electoral District. C— TIIK FOURPllOVINCKS. 00. The following Provisions of this Act respecting the pecti'nTmo'nly Parliament of Canada, namely, — the provisions relating to Appropriation and Tax Bills, the Recommendation of Money Votes, the Assent to Bills, the Disallowance of Acts, and the Signification of Pleasure on Bills reserved, — shall extend and apply to the Legislatures of the several Provinces as if those Provisions were here re-enacted and made applicable in Terms to the respective Provinces and the Legislatures thereof, with the Substitution of the Lieutenant Governor of the Province for the Governor General, of the Governor Gen- eral for the Queen and for a Secretary of State, of One Year for Two Years, and of the Province for Canada. See Suets. 53, 54, 55, 56 & 57. Application to Iief{ialatures uf rrovisions rea- LeglBlativean- thority of Par- liament of Canada. YI. DISTETBUTION OF LEGISLATIVE POWERS. Powers of the Parliament. 01. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces ; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming B. N. A. ACT, 18G7 — SECT. 1)1, FKDKltAL LIXMSLATIVK I'oWKI!. Ho Ithe ms, lent Ithe Ithe Ibut IS of ling fity ling within tlic Cliisse.s of Suhjects jiext hcrein-iifter oniniUM'iitod; that is to say, — 1. The Public Debt and Property. 2. The Regulation of Trade and Commerce. 3. The raising of Money by any Mode or System of Taxa- tion. 4. The borrowing of Money on the Public Credit. 6. Postal Service. C. The Census and Statistics. 7. Militia, Military and Naval Service and Defence. 8. Tlie fixing of and providing for the Salaries and Allow- ances of Civil and other Officers of the Government of Canada. 9. Beacons, Buoys, Lighthouses, arid Sable Island. 10. Navigation and Shipping. 11. Quarantine, and the Establishment and Maintenance of Marine Hospitals. 12. Sea Coast and Inland Fisheries. 13.' Ferries between a Province and any British or Foreign Country or between Two Provinces. 14. Currency and Coinage. 15. Banking, Incorporation of Banks, and the Issue of Paper Money. 16. Savings Banks. 17. Weights and Measures. 18. Bills of Exchange and Promissory Notes. 10. Interest. 20. Legal Tender. 21. Bankruptcy and Insolvency. 22. Patents of Invention and Discovery. 23. Copyrights. 24. Indians and Lands reserved for the Indians. 25. Naturalization and Aliens. 20. Marriage and Divorce. 27. The Criminal Law, except the constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters. 110 It. N. A. ACT, 1807 — SKCT. 01, FKDEUAL LECISLATIVE I'OWEU. 28. The EHtablishment, Maintenance, and Management of Penitentiaries. 20. Such ClaHHes of Subjects as are expressly excepted in the Enumeration of the Chisses of Subjects by this Act assigned exclusively to the Legishitures of the Provinces. And any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or i)rivate Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legisla- tures of the Provinces. The difficulties wliicli, after an experience of a few years, have wliown a work of this iciiid to be useful, if not ncccHHary in some siiape, were foresliadowcd by Lord Carnarvon in the following terms, when the B. N. A. Act came before the House of Lords : " I now pass to that which is, perhaps, the most delicate and the most important part of this measure — the distribution of ])owers be- tween the Central Parliament and the local authorities. In this is, I think, comprised tlie main theory and Constitution of Federal Government ; on this depends the practical working of the new system ; — and here we navigate a sea of difficulties — there are rocks on the right hand and on the left. If, on the one hand, the Central Government be too strong, then there is risk that it may absorb the local action and that wholesome self-government by the provincial bodies, which is a matter of both good faith and practical expediency to maintain ; if, on the other hand, the Central Government is not strong enough, then arises a conflict of State rights and pretensions, cohesion is destroyed, and the effective vigour of the central authorities is encroached upon. The real object which we have in view is to give to the Central Government those high functions and almost sovereign povverw by which general principles and uniformity of legislation may be secured in those questions that are of common import to all the Pro- vinces ; and, at the same time, to retain for each Province so ample a measure of municipal liberty and self-government as will allow, and in- deed compel them, to exercise those local powers which they can exer- cise with great advantage to the community In this Bill the division of powers has been mainly effected by a distinct classifi- cation. That classification is four-fold : 1st, those subjects of legisla- B. N. A. ACT, 1807 — «EOT. 01, FF.DKRAF, LEdlHLATIVE POWKU. 117 • tidii w iiicli aro uttiibiitt'd to the Central Piiiliaiiu'iit exclusively ; 2nd, those which helong to the Provincial L(!^Mslatures exclusively ; 3rd, those which are subjects of concurrent lej^i.slution ; and 4th, u partic- idiir (lucstion which is (hMilt witli excejitionally. To the Central I'arlia- meiit Ix'lonj^'all questions of the j)ubli(! (hiitt or jtioperty, all rc'i^'uiations •with rc';;ar(l to trade or commerce, customs andexcisf, loans, the raising of revenue by any mode or system of taxation, all provisions as to cur- rency, coinage, banking, postal arrangements, the regulation of the census, and the issue and collection of statistics. To the Central Par- liament will also be assigned the enactment of criminal law. The administration of it indrevi is vested in the local authorities ; but the j)()wer of general legislation is very properly reserved for the Central I'arliament. And in this 1 eaimot but note u wise departure fr(»m the system pursued in the United States, where each State is competent to deal as it may please with its Criminal Code, and where an otlcnse may be visited with one penalty in the State of New York, and with au(jtlier in the State of Virginia. The system here proposeil is, I be- lieve, a better and safer one ; and I trust that before long the criminal law of the four Provinces 'nay be assimilated — antl assimilated, 1 will add, u])on the basis of Knglish proceduu. Lastly, the tisheries, the navigation and shipping, the quarantine regulations, the lighting of the coast, and the general question of naval and military defence, will be placed under the exclusive control of the Central Government. " The ])rineipal subjects reserved to the Local Legislatures are the sale and management of the public lands, the control of their lios[)ititls, asylums, charitable and municipal institutions, and the raising of money by means of direct taxation. The several Provinces, which are now free to raise a revenue as they may think fit, surrender to the Central Parliament all powers under this head except that of dh-ect taxation. Lastly, and in conformity with all recent colonial legislation, the Pro- vincial Legislatures are empowered to amend their own constitutions. But there is, as I have said, a concurrent power of legislation to be ex- ercised by the Central and the Local Parliaments. It extends over three separate subjects — immigration, agriculture, public works. Of these the two first will in most cases probably be treated by the prov- incial authorities. They are subjects which, in their ordinary character, are local ; but it is possible that they may have, under the changing circumstances of a young country, a more general bearing, and there- fore a discretionary power of interference is wisely reserved to the Cen- tral Parliament. Public works fall into two classes : first, those which are purely local, such as roads and bridges, and municipal buildings — 118 B. N. A. ACT, 1867 — SECT. 91, FEDERAL LEGISLATIVE TOWER. and these belong, not only as a maft^r of right, but also as a matter of dnty, to the local authorities. Secondly, there are public works which, thougl) possibly situated in a single Province, such as telegraphs and canals, and railways, are yet of common import and value to the entire Confederation, and over these it is clearly right that the Central Gov- ernment should exercise a controlling authority. " In closing my observations upon the distribution of powers, I ought to point out that just as the authority of the Central I'arlianient will prevail whenever it may come into conflict with the Local Legislatures, so the residue of legislation, if any, unprovided for in the specific classi- fication which I have explained, will belong to the central body. It will be seen, under the 91st clause, that the classification is not in- tended ' to restrict the generality ' of the powers previously given to the Central Parliament, and that those powers extend to all laws made 'for the peace, order, and good government' of the Confederation, terms which, according to all precedents, will, I understand, carry with them an ample measure of legislative authority. I will add that, whilst all general Acts will follow the usual conditions of Colonial legis- lation, and will be confirmed, disallowed, or reserved for Her Majesty's pleasure by the Governor General, th Acts passed by the Local Legis- lature will be transmitted only to the Governor General, and be subject to disallowance by him within the space of twelve months." As to the unahcrable cliaractor of the Bill, Lord Carnarvon repeatedly expressed himself: — " Such an undertaking was part of the compact between the several Provinces, and it was an indispensable condition on the part of New Brunswick." In answer to Lord Lyveden, the noble Lord said : " It was, of course, within the competence of Parliament to alter the provisions of the Bill ; but he should be glad for the House to understand that the Bill partook somewhat of the uture of a treaty of union, every single clause of which had been debated over and over again, and had been submitted to the closest scrutiny, and, in ftict, each of them repre- sented a compromise between the ditierent interests involved. No- thing could be more fatal to the Bill than that any of those clauses which were the result of a compromise should be subject to much alteration It would be his duty to resist the alteration of anything which was in the nature of a compromise, and which, if carried, would be fatal to the measure." B. N. A. ACT, 1867 — SECT. 91, FEDERAL LEGISLATIVE TOWER. 119 This was in accordance with this Colonial compact as cxprcsscJ by Sir John A. Macdonald in the LehMients of that class. Tlie Cantons are to provide for tlie primary instruction of children, which slionld be adenunte, and placed exclusively under the directiou of the Civil authority. 120 n. N. A. ACT, 1867 — sect. 91, fedekal legislative power. Primary instruction is obli^rntory, and in the Public Schools gratuitous. Tlie Public Schools to be so ni;iniigod thnt the adherents of every creed should be able to attend them without having their liberty of conscience or of belief in any way interfered with. The Confederation will take sucli measures as may be necessary against tho Cantons that will not comply with these obligations. Arts. 28, 29 and 30. — The imposition and collection of duties on imports and exports belong to the Confederation. Art. 33. — The Cantons can o.xact proof of capacity of those who desire to exercise any of the liberal professions, for whom provision is to be made by Federal legislation to enable them to obtain diplomas of capacity, valid through- out the whole Coniederation. ^ In Re Niagnrn Election Case (29 U. C, C. P. 275), G Wynne, J., distin- guishes between the distribution of powers in the Constitution of the United States and Dominion Governments as follows : — The powers of the General Government are made up of concessions of the several States, — whatever is not exju-essly given to the former the latter expressly reserve.' With ns the very opposite of this is the case. The Dominion Government and the several Provincial Govern- ments emanate from the one Sovereign Power, the Imperial Parliament. The Provincial Legislatures have no jurisdictioii whatever but what is expressl}^ conferred upon them by the Statute which calls them into existence, whereas by that same Statute, upon the Dominion Parliament is conferred the power of making laws not merely in respect of the par- ticular subjects enumerated, but in relation to all matters not coming within the classes of .subjects assigned exclusively to the Legislatures of the Provinces. 1. — The Public Deb t and Property. It is provided by Sect. 108, that the Public Works and Property of each Pro- vince, enumerated in tho following Schedule, shall be the property of Canada. See also Sects. 102 and 107. THE THIUD schedule. Provincial Public Works and Property to be the Property of Canada. 1. Canals, with Lands and Water Power connected therewith. 2. Public Harbours. 3. Lighthouses and Piers, and Sable Island. 4. Steamboats, Dredges, and Public Vessels. 5. Rivers and Lake improvements. 6. Railways and Railway Stocks, Mortgages, and other Debts due by Railway Companies. 7. Military roads. 8. Custom Houses, Post Offices, and all other Public Buildings, except such as the Gov- ernment of Canada appropriate for the Use of the Provmcial Legislatures and Govern- ments. par- miing ■es of Pro- da. )A. apanies- Ihe Qov- iGovera- 1!. N. A, ACT, 1867 — SECT. 91, § 2, FKDEUAL LEGISLATIVE POWER. 121 9. Property transferred by the Imperial Government, and known a3 Ordnance Property. 10. Arinoiirius, Drill Hheds, Military Clothing, and Munitiona of War, and Lands set npart for general Public Purposes. In Roherfsnn v. The Queen, now pcndin;.^ in the Exchequer Court of Can- ada, it is contended oij^Re part of the Suppliant : That the word " Elvers " in clause 5 of Schedule 3 is a typogra- phical error for " River," from the fact that in the original draft Consti- tution adopted at the Quebec Conference (Canadian Pamphlets, 137, in Parliamentary Library, Ottawa) the words used were " Eiver and Lake Iiajirovements," meaning River Tmprovements and Lake Improve- ments, as tlie words in Sect. 91, s.s. 12, " Sea Coast and Inland Fish. cries," mean Sea Coast Fisheries and Inland Fisheries. See Sect. lOS. 2. — The Regulation of Triicle mid Commerce. In licgina v. llie Justices of Kings Co. (2 Pugsley, 535). Held, liy the Sujtreme Court of New Brunswick : — That a Local Legislature has no power under the V>. N. A. Act of 18C7 to pass a law directly or indirectly ]»rohil)iting the manuftxcture or sale of spirituous lifpKirs, — that such law is in direct conilict with the powers of the Dominion rarliament as well over trade and commerce as with their right to raise a revenue by duties of Impost and Excise. liitchie, C. J., in delivering the Judgment of the Court said: To the Doiuinion Parliament of Canada is given the power to legislate exclu- sively on " the regulation of trade and commerce." The regulation of trade aH' commerce must involve full power over the matter to be re- gulated, and must necessarily exclude the interference of all other bodies that would attempt to intermeddle with the same thing. The power thus given to the Dominion is general, without limitation or restriction, and therefore must include tralHc in articles of merchandise, not only in connection with foreign countries, but also that which is internal between diflerent Provinces of the Dominion, as well as that which is carried mi within the limits of an individual Province. As a matter of trade and commerce, the right to sell, is inseparaldy C(ninected with tlie law })ermitting importation. . How can the Local Legislature prohil)it (by arbitrarily refusing to grant any license) the sale of spirituous li(piors of all kinds, without coming in direct conflict with the Dominion Legislature on the suliject of Inland llevenue, involving the right of manufacturing and distilling spirits, &c., as regulated by 31 Vic. chap. 8, and the subseiiuent Acts in amendment thereof, — and the excise duties leviable thereby, and the licenses authorized to be granted thereunder. i % in; n 1 ■ ^ 122 B. N, A. ACT, 1867 — SECT. 91, § 2, FEDERAL LEGISLATIVE POWEll. The Corporation of St. Roch v. David Dion (1 Q.L.R., ]>. 241). This was an action for a penalty incurred for violation of the following by-law of a municipality : — " Every person not an inhabitant of this municipality and who by himself or by other persons may come hither to carry on the trade of delivering, offering for sale or selling broad, wholesale or retail, shall take out a license from the Couii.il of this Municipality, for which license or leave every such person shall pay the sum of 812." Stuart, J., held, that the by-law was in restraint of trade to the op- pression of the su])ject, and absolutely void, and that consequently the action for the penalty under it must be dismissed. Ill Morinv, The Corporation of the Village of St. Gthricl ; HfiLn, b} the Circuit Court, Torrance, J., Montreal, 30th April, 1880. That a municipal by-law, in the words following, was void as being in restraint of trade, viz. : " The traders in general, whatever be the extent and kind of their commerce, who do not reside within the Muni- cipality of the Village of St. Gabriel, and who have not therein a place of business, shall not be allowed to exercise therein their trade or com- merce, without having previously obtained from the Secretary-Trcjiis- urer a license for that object." The plaintiff claimed 820 damages, be- cause the defendants had, by a policeman, coerced him by threats of imprisonment, into paying them SIO for the privilege of plying his trade of pedlar. The evidence showed that plaintiff held a license from the Quebec Government, authorizing him under sect. 54 of the Li- cense Act, 1878, to ply his calling as pedlar, also that the police of St. Gabriel had arrested him on the order of the Council, and that on the 8th A\igust he was fined costs of court, and again on the 25th August he was arrested, when he paid $10 for a license. I think the case of St. Roch V. Dion is exactly in point as to the invalidity of the by-law. The by-law should have exactly followed the authority of the Mun. C. 582. Instead of doing so, the by-law strikes at non-residents, which may be regarded as in restraint of trade. As to the sale of provisions or victuals not being protected by the provincial license, the by-law is clearly not intended for that particular case ; and to operate against it, should have been otherwise framed. I think, therefore, that the ])lain- tiff is entitled to judgment. There is another case, being an ai)peal from the judgment of the Justices condemning him to pay the tax of $10, and praying that the judgment be annulled and tlie by-law be declared to be ultra vires. This case is also decided in favor of the appellant, Morin. B. N. A. ACT, 1867 — SECT. 91, {§ 2, FEDERAL LEGISLATIVE POWER. 123 a place or com- ^.Treas- Lveats of ying liis juse fvotn t\ie lA- ;e of St. ^t on the Angvist ^e case of by-law. Mun- ^• [ts, wbicli )vovision3 |by-law is laainst it, [the plain- lu appeal the tax of ,y.law he ror of the Hart et la Corporation dn ComU de Misaisquol (Cour de Cir- cuit) Caron, J., (2 Q.L.R., 170). Juge :— Que les pouvoirs accordcs aux Conscils de Comtes par I'Acte de Tcinpurance do 1864, ne peuvent etre ni modifies ui abroges par la Ld- gi.slatuvo de la Province de Quebec, puisque ces [)ouvoir3 concernent I'industrie et le commerce, et les rdglements concernant Pindustrie et le commerce et la formation du revenu par le systeme de taxes, sont sous le controle exclusif du Parlement du Canada. liien ne justifie I'autorite ([u'une Legislature Provinoiale s'arrogevait en k'giferant sur le commerce interieur. T.es Legislatures locales peu- vent a la verite faire des lois relatives h I'octroi des licences pour maga- sins, tavernes, etc., mais seulement ilaiis le hutde se former un revenu puur faire face aux depenses de la Province. City of Frederlctou v. The Queen (3 Can. S. C, 506). Held, by the Supreme Court of Canada : 1. That the Dominion Act (41 Vict., c. 16) cited as " The Canada Temperance Act, 1878," which makes provision by conditional legisla- tion for the prohibition of the traffic in intoxicating liquors (in certain localities throughout the Dominion where a majority of the electors decide that the Act shall go into effect) is " a Regulation of Trade and Cuininerce," and within the powers conferred upon the Dominion Par- liament by Sub-Sec. 2 of Sec. 91 of the 13. N. A. Act, 1867. 2. That the power to regulate, carries with it the power to prohibit. 3. That the right to regulate trade and commerce conferred upon the Dominion Parliament cannot be overridden by any local legislation in reference to any subject over which power is given to the Provincial Legislatures. 4 That (affirming tlie ruling in Regina v. The Justices of Kings Co., 2 Pugs., 535) a Provincial Legislature has no power to pass a law pro- hibiting the manufacture or sale of spirituous li(piors ; that such law would be indirect conflict with the powers of the Dominion Parliament over trade and commerce. 5. That the power of a Provincial Legislature to authorize or prohibit a trade or business is repugnant to tlie [tower of regulaticm exclusively given to the Dominion Parliament over the same subject. Jlitchie, C. J., in delivering judgment, said : — (adopting the reasoning in the United States License Tax Cases, 5 Wall. 462) tliat the constitutional power of the Dominion Parliament to regulate trade and commerce can be exercised by means of licenses, and that would give authority to the licensee to do whatever business its terms authorized, but that the power conferred upon the Provincial Legislatures to raise 'H 124 n. N. A. ACT, 18G7 — sect. 91, § 2, federal legislative power. a revenue by <,Taiiting licenses could reach only existine; subjects of taxation, and could not authorize a trade or business within a Province in order to tax it. And that he could not appreciate the force of the objection taken to the constitutionality of the Canada Temperance Act, f»n the ground that the right to ]irohibit the sale of intoxicating li([Uors as a beverage interfered with the right of the local legislatures to raise a revenue by means of shop and tavern licenses. If the Dominion Parliamenl, in the exercise of its right to regulate trade and commerce, adojit such regulations as in their practical operation conflict or inteifere with the beneficial oi)eration of local legislation, then the law of the Local Legislature must yield to the Dominion law, because any matter coming within any of the classes of subjects enu- merated in the 01st section of the British North America Act as con- fided to rarliament, is not to l)e deemed to come within the class of matters of a local nature assigned exclusively to the Local Legislatures. In other words, the right to regulate trade and commerce is not to l)e overridden by any local legislation, in reference to any subject over Avhicli [lower is given to the Federal Legislature. Justices Fournier, Taschereau ami Gwynne concurred with the Chief Justice. Henry, J., dissenting, was of the opinion : — That Sub-sec. 2 of Sec. 91, giving jiower to the Dominion Parlia- ment to regulate trade and commerce, does not override the specific grant of powers in the matter of Licenses, conferred l)y Sect. 92, Sub- sec, 9, upon the Provincial Legislatures; that the subject of licenses for the retail of spirituous liquors in shops, saloons, and taverns is wholly one in the nature of a police regulation, and that it was not intended either by the compact of L'nion, or the Act passed therefor, that the local power should be affected, restrained or controlled by any Domin- ion legislation. In Denton \, Dnhy at tlic Fibrutny term (1880) of tho County Court Digby, Nova Scotia — Snvarj, County Judge, held: — That, under the power to regulate trade and commerce, the power to regulate the retail sale of spirituous drinks was conferred upon the Donnnion Parliament. That, in the absence of a Dominion Statute controlling and regulat- ing tratle, it was ([uite competent for the Local Legislature to ordain local and municipal regulatinns respecting the retail sale of spirituous drinks, but such legislation must give way when the Dominion Parliament intervenes in its paramount authority on any subject specially confer- red upon it by the B. X. A. Act. H. N. A. ACT, 1867 — SECT. 91, § 2, FEDEHAL LEGISLATIVE I'OWEI!. 125 That, tlie power to regulate tlie procedure and practice of the Courts, undur Sub-sec. 14 of Sec. 92, depends upon the power to legishite on the subject in respect to wliich they are invoked, — as hiid down in the judgment of the Supreme Court of Canada in VaUii v. Laiujlolx. In Si-Vfrn v. The Qncut (2 Can. S. C. 77), h(dd :— That, the Legislature of the Province of (Ontario has no authority to raise a revenue from brewers by requiring them to take out licenses to carry on their business and dispose of their beer within the Province. (Overruling Eegina v. Taylor, 36 U. C, Q.P.., p. 201.) The Chief Justice Eichards said : That, under the B. N. A. Act of 1867, the power to regulate Trade and C(^mmerce rests exclusively with the Dominion Parliament, as also the right to raise money l)y the mode of indirect taxation, except so far as the same may be expressly given to the Provincial Legislatures. That, making it necessary to take out and pay for a license to sell, by wholesale or retail, spirituous, fermented or other manufactured liquors, is raising money by the indirect mode of taxation. That, all the authority given to the Provincial Legislatures to exer- cise the power of raising money by the indirect mode of taxation is con- tained in Sec. 92 of the h. N. A. Act, which gives power to legislate on the subject of: § 8. Municip.al institutions in the Province ; §9. Shop, saloon, tavern, a.nctioneGr,avd other licenses in order to the raising of a revenue, for provincial, local or municii)al purposes. That it was not intended by the words " other licenses " to enlarge the powers referred to, beyond shop, saloon, and tavern licenses, in the direc- tion of licenses to aifect the general purposes of trade and commerce and the levying of indirect taxes, but rather to limit them to the licenses which might be reciuired for objects which were purely municipal or local in their character. . . I consider the power, now claimed, to interfere with the paramount authority of the Dominion Parliament in matters of trade and commerce and indirect taxation ; and so pregnant with evil, and so contrary to what appears to me to be the manifest intention of the framers of the B. N. A. Act, that I cannot come to the conclusion that it is conferred by the language cited as giving that power. By the interpretation I give to the words " and other licenses," limiting them to the other licenses which are of a local and municipal character, and giving full force to the words, shop, saloon, tavern and auctioneer li- cense, I think I carry out the intention of the B. N. A. Act and make all the powers harmonize. liitcliie, J., (dissenting) said : — n I m » 126 B. N. A. ACT, 18G7 — SECT. 91, § 2, FEDERAL LEGISLATIVE IVDWEU. ■'J i ' 1 ^'1 |::^ .-'"ti i; li What licenses did the Lej^islature intend to cover by the wovls, " and other licenses " ? Had the licenses specified in this section been cjusdem geuevLs ; had they been confined to those which, throufi,hout the Dominion, previously to Confederation, had been granted only by municipal authorities ; and had the revenue authorized to be raised been for municipal purposes alone, I should have thought there was much force in the contention that the words " and other licenses " should be read in a restricted simse. ... As the case stands, I can see no reason why the golden rule, as it has been often called, by which Judges are to be guided in the construction of Acts of I'ar- lianient, should be departed from, viz. : to read the words of an Act of Parliament in their natural, ordinary and grammatical sense, giving them a meaning to their full extent and capacity, there being nothing to l)e discovered on the face of the Statute to show that they were not intended to bear that construction, nor anything in the Act inconsistent with the declared intention of the Legislature. The licenses named are not ejusdem generis, for certainly auction- eer licenses are not ejusdem generis with tavern licenses, nor always granted by the same authority. . .• Therefore, I think the rule tios- citur a sociis cannot apply in this case. It is said this construction conflicts with the power of the Domin- ion Ciovernment, " to regulate Trade and Commerce," and the raising of money by any mode or system of taxation ; all I can say in answer to that, is, that so for, and so far only as the raising of a revenue for ])ro- vincial, municipal and local purposes is concerned, the B. N. A. Act in my opinion gives to the Local Legislatures, not an inconsistent, but a concurrent power of taxation, and I fail to see any necessary conflict. Strong, J., (dissenting) said : In The Queen v. Taylor (36 U. C, Q. B. 218), the Court of Appeal of Ontario, adjudicating upon the question now before this Court, determined that the words " other licenses," as used in this section, gave pov/er to ini})ose licenses upon persons carrying on the trade of brewers. This conclusion was reached by the consideration that all powers confeired in section 92 were to be read and regarded as exceptions to those enumerated in section 91, and by that section (sec. 91) given to the Dominion Parliament. That section 92 was, therefore, to be construed as if it had been contained in an Act of the Imperial Parliament, separate and apart from section 91, and was, therefore, to be read independently of that section. The rule apjdied in the construction of Statutes, which restrains gen- eral words following specific words to subjects ejusdem generis with B. N. A. ACT, 1867 — SECT. 91, § 2, FEDERAL LEGISLATIVE I'OWEU. 127 those specially mentioned, was thought not to be applicable, inasmuch as the specific words were not ejusdetii generis with each other, and it was, therefore, impossible to say with which class of the specific classes mentioned, the general words should be associated ; in short, it was held to be impossible to apply to this clause the well-known maxim of interi)retation, noscltur a sociis. The words " other licenses " were, therefore, held to be susceptible of only one construction, that which attributed to them the same meaning as if the expression in the Act had been " any licenses," or " all licenses," standing alone, unconnected with any specific words. I was a party to the judgment in The Queen v. Taylor, and a care- ful consideration since, has not only not led me to discover any error in it, but has brought to my notice authorities not quoted to the Court of Appeal, as well as some additional reasons for adhering to the decision. Fournier, J., said : 1st. The law in question is void because it comes in conflict with the power of the Federal Parliament to regulate trade and connnerce under sub-sec. 2 of sec. 91. 2nd. Because the terms " and other licenses " must be read as if they were followed by these words, " not incompatible ivith the power of regulating trade and commerce." 3rd. Because the tax imposed by this Act is an indirect tax which the Local fJovemment has no right to impose. 4th. Because it comes in direct conflict with the 31st Vic. chap. 8, relating to excise, iienry, J., said : The legislative power given to the Dominion Parliament is un- hmited : " To make laws for the peace, order and good government of Can- ada, in relation to all matters not coming within the classes of sulijects by this Act assigned exclusively to the Legislatures of the Provinces," and we need not necessarily consider the provisions of sub-sections 2 and 3 of section 91. Everything in the shape of legislation for the peace, order and good government of Canada is embraced, except as before mentioned. But sub-section twenty-nine goes further, and provides for excep- tions and reservations in regard to matters otherwise included in the power of legislation given to the Local Legislatures, and also provides that : i!J I '■J " Any matter coming within any of the classes of subjects enumerated in this 128 H. N. A. ACT, 1807 — SHUT. 91, § 2, FKDKKAL LEGISLATIVE I'OWEK. section slmll not bo deeined to coino within tlie class of matters of a locul or pri- vate iiiiturc coiiipri.sed in the cnunionitioii of the cl:iss(;s of subjects by this Act assigned exclusively to the Lej^ishitures of the Provinces," " Tlie re<,'iiliitictn of trade uml coininorcL' " ftiid " the raising' of nioiioy liy iiny mode or syateiii of tiixatiou," is,liu\vever, specially iiientioiu'd, and l)(»tli iiudude the ri^dit to make and have carried out all the jirovisions in the Dominion Act The subjects in all their details, of which trade and commerce are composed, and the rej,'ulation of them and raisinj^ of revenue by indirect taxation, must, therefore, be matters referred to and incliuled in the latter clause of sub-section Vjefore mentioned, and if so, shall not be deemed to come within the class of matters of a local or })rivate nature comprised in the enumerati(»n of the classes of subjects by this Act assigned exclusively to the Legisla- tures of the Trovi'-ices. Every constituent, therefore, of trade and commerce, and the sub- ject of indirect taxation, is thus, as I submit, withdrawn from the con- sideration of the Local Legislatures, even if it shoulil otherwise be apiMWcidhj includiid. The Imjterial Act fences in those twenty-eight subjects wholesale and in detail, and the Local Legislatures were intended to be, and are kept out of the inclosure, and when author- ized to deal with the subject of " direct taxation within the I'rovince," in sub-sect. 2 of Sect. 92, and " shop, saloon, tavern, au(;tioneer and other licenses," in ss. 9, they are commanded, by the concluding clause of sub-section 29, section 91, not to interfere by measures for what they may call " direct taxation," or in regard at least to " other licenses," or in reference to " municipal institutions," with the prerogatives of the Dominion Parliament as to the " regulation of trade and commerce," including " Customs and Excise laws," and "the raising of money by any mode or system of taxation." But we are asked to hold that, under snb-seetion 9, " shop, saloon, tavern, auctioneer and other licenses " will include licenses to brewers, in the position occupied by the appellant, to sell by wholesale. Such an application can oidy Ije made by virtue of the concluding words : " and other licenses." The extent and limit to be given to those words have not been stated or referred to ; but some must exist to their application. If applicable to 6re«'evs' and distillers' licenses, which, at the date of the Imjjerial Act, were completely out of reach of any municipal control, why not extend them to other traders ? If uncontrolled, a Local Legis- lature might organize a system of licenses, and indirectly, not only tax, Iloon, ^v('l's, Such mis : h)een If the litrol, legis- tax, B. N. A. ACT, 1867 — SECT. 91, § 2, FKDEUAL LKGISLATIVE POWKK. 129 hut royuliitc ami restrict certain industries, trades and callin<,'s, nrnii^dit iiidcctl, virtually jtnihihit and destroy them. We must reasonahly con- clude the Lef^'islature meant to restrict the ])o\ver at sonu^ point, ;iiid we must deturmino where tliat restriction should he imposed, not only from the words of the suh-section in (|uestion, hut from the tenor and lu-aring of the whole Act, the state of the hiw at the time, the ])eculiar position of the United Provinces and the ohject of their union, with the means for working,' out the Constitution provided. Takin>4' the words themselves, what is the law as to the construction of them ? From a review of all the cases cited, and others, I am forced to conclu(l(! that the words " and other licenses " must be restricted. "We find them preceded hy the words, " shop, saloon, tavern, auction- eer," and I cannot decide that hrewers or distillers are ejundcm (/(nieria with tliem or any of them. That they should he, to inchuh; the rij,dit of legislation claimed, taking the whole (»f the Imperial Act titgether, is a jiosition too clearly estaltlisheil to he douhted. Where it is .admitted that some restraint must be put upon thecou- truction of the word, the rule ntfacheSy that a general words following sped tic ones must he taken to mean something of the same kind. (Citing Reed and Ingham, 3 E. and 15. 88.) A similar constriiction was put npon general words in Sandeman v. Brmrh (7 B. & C. lOU). 129 Car. 2, chap. 7, pi'ovided that : No tradesman, artificer, vork- man, laborer, or other person or persons should work at their ordinary calling upon the Lord's day. Per Lord Tenterden : " It was contended that imder the words 'other person or persons' the drivers of stage coaches are inchided. But where general words follow particular ones, the rule is, to construe them as applicable to persons ejasdeni generis. \Ve think the words ' other person or persons ' cannot have been used in a sense large enough to include the owner and driver of a stage cuacli." 1 feel bound, therefore, on principle, and as the result of all the cases, to construe the words in question as controlled by the other por- tions (if the Act, and, therefore, not to include power to the Legislature of Ontario to legislate for licenses to brewers or distillers to sell by wholesale. Taschereau, J., said : The only question submitted for our decision is, whether the Legis- lature of Ontario had the power to pass the Statute, 37 Victoria, chap. 32, under which the Appellant was condemned, requiring brewers to s I i hi IM; . 130 H. N. A. ACT, 18G7 — SKCT. 91, § 2, FKDEHAL LElUSLATIVK I'OWKU. take, (lilt a liooiiao for scslliii;,' fcnucnted or inalt licniors }»y wliolosalo. . . After loll},' and matiiit) di'liliunitioii I have come to tlu; conclusion that the sections of that ^Vct ajjiilicalile to the defendant aro ultra vires. Tt is evident that in adjudicating,' on the extent of sub-section 9 of section 92, we must read it in connection with the remainder of the Act itself, and more particularly witli sub-sections 'J and 29 of section '.)1, which indiciite the powers of the rarliiimeiit of Canada. Under sub-section 2 of aciction 91 the rarliament of Canada has the exclusive regulation of trade and commerce, and under sub-section 29 of section 91 it is declared that: Any iniitter cnmiiit; witliin any of tlic olusscs of subjects enumorutcd in this section sli.ill not be deemed to coiiio witliin the cliiss of matters of a local or jiri- vatt! nature comprised in tlie enuiiicration of the claj-scs of subjects by this Act assigned exclusively to the iiei;;islatures of the Provinces. From section 122 of the B. N. A. Act we can safely infer that the rarliament of Canada has exclunive jurisdiction as to excise. N(jw, can the Crown justify the Act in (luestion in this cause under sub-section 9 of section 92 of the B. N. A. Act, which grants to Provincial Legisla- tures in the Dominion of Canada the right of making laws about shop, saloon, tavern, auctioneer (ind other licennes ! I think not ; this ])ower would evidently clash with the Dominion })ower of regulating trade and commerce and of imposing duties thereon, and exacting licenses. If this right existed, both Parliament and Trovincial Legislatures would possess an equal right to impose a duty and exact licenses. See cases under Sect. 92, s.s. 9, for other illustrations of the con- struction of the words " and other licenses." Trade Marks. The Supreme Court of the United States in November, 1879, as appears by the following decisions, hcs declared unconstitutional the laws enacted by Con- frress for the protection of Trademarks, by Registration as not included in the power given to Congress to Regulate Commerce, or to Legislate in reference to I nventions and Copyright (the power to regulate trade not having been conferred upon Congress). And the proprietor of a Trade Mark in the United States can now have recourse only to the protection of the Common Law and the Local Statutes in each of the States. United States v. Stcffens ; same v. Witteman ; same v. Johnson (2 Jj. N. 416). The defendants being indicted for violations of the Statute of the United States for the protection of Trade Marks, it was held by the U. S. Supreme Court : que sent cuntn ftl"])ar n'gleii les nif sur k Si les raj i^ttxt a bution 11. N. A. ACT, 18G7 — 8KCT. 01, i) 2, FEDEllAL LEGISLATIVE POWEU. 131 ICC to have Jnited I. Tliiit property •" Tratlc Marks 1ms Ion j,' been rec(»j,'tiiscMl anil jiro- te<'tiM| by tlu! Coninion Law and liy thu Stutiitt! of the Status, and does not owe its existuncu to tho Act of C'on«'it's,s providing' for their IiL'^'istration. '2. That a Trade Mark is neither an invention nor a discovery, nor a literary jirodnet, within the nicaniny of thi! clause of the Conititutiou in re^'ard to seenrin<,' to inventors the exclusive use of their writings and discoveries; as it does not involve the element of originality nor depend upon novelty, hut is sinijdy founded on ])riority of apjiropriation. 3. That as a Itegtdation of Commerce, if 'I'rade Marks can in any case he the subject of Congressional action, that action is limited by the Constitution to their use in commerci; with foreign nations, among the several States, and with the Indian tribes. As the Statute is so framed that it is imjuissible to sejiarate that which has reference to commerce within its control and that which has not, the whole legislation must fall, as being void for want of constitu- tional authority. M. Iti'n.iuh, profcssour agrt^^d a la Fiiculte de Droit, duns un discours dt'V.int la Socioto do Legislation coiiipareo, proiioiicd i la seance du 1-t Janvier 1881), a f'uit les observations suivantessur la question des iMarques du Ftibri({ue aux Etats-l'nis. Je crois pouvoir rendre compte du raisonnement par suite duquel la Cour Snpreme des Etats-l^nis a declare inconstitutionnelle la legis- lation federale sur les manines. 11 s'agit de savoir si cette legislation rentre dans la disposition suivante de la constitution : " Le Congr^s aura le pouvoir de regle- iiienter le commerce avec les nations «5trang6res, entre les divers Etats de r Union, et, en outre, avec les tribus indiennes." (Art. 1, parag. 3, al. 3.) La Cour admet, — bien qu'on ait soulev(5 des difficult'Js sur ce point* que les maniues sont assez etroitement lides au commerce auquel elles sent destinees pour qu'elles doivent, par ceia memo, etre soumises au controle du Congres, quand elles sont appliquees aux marchandises a])iiartenant a la nature du commerce que le Congres a 6t6 autoriser t\ rt'glementer Le Congres pouvait done prendre des dispositions sur les marques, mais seulement dans la mesure oA il pouvait en prendre sur le commerce. Si done la Jt^gislation sur les marques s'appliquait uniquement dans les rapports des Americains avec les (Strangers, ou des Amdricains d'un Etat avec les Americains d'un autre Etat, elle rentrerait dans les attri- butions du Congres. Mais cette k^gislation est plus gi5nerale, elle est 132 B. N. A. ACT, 1867 — SECT. 9], § 2, FEDKHAL LEGISLATIVE POWER. destinee k s'a])pliquev dans les limites dos Etats et dans les vapports des citoyens d'un mr-nie Etat ; en eela. elle est inconstitutionnelle et elle empiete sur les attribntions reservees anx k'j,'islatnres des Etats. The Dominiou Parliainciit con.sulcred the rogultitiiHi of Tradi; Marks as falling' within the scope of its powciM. The principles of law designed to protect an inventor or nianufactuier in the enjoyment of the advaiitajres derivable from his labor, skill or ingenuity, and the reputation he has earned thereby, were recognized by the ('ourts of Law of England and France many years before these principles were endjodiod or carried out, by special iogi^Iation, into statute laws. With the devilnpnuiit of trade and commerce, a public opinion had been formed whieli d( iland it au immoral act for any one to use the results of another's labor, skill or niKitation without giving a remuneration therefor. The public .sentiment and the common law, as a consequence, gave expression to statutory provisions for thf j)rotection of Trade Marks ; and thus the rule of law as to Trade Marks docs not arise frmn, nor depend upon, IStatute laws; and the Courts of Law in England, and France, and in the United States, will act for the protection of Trade Marks solely on the principle of affording protection to property. The first cases that came hefore the Courts of England arose upon actions for damages sustained by fraud and deceit, and a case of this kind oecurnd in England as early as the year 1G8(I, reported in 1 Poj/h(im 43 (J22 Klizabclli), and is cited in Lloyd on Trade .Marks, p. 3. In France the law dealt with the offender, and administered punishments similar to those that were prescribed in cases of forgery. ^1. A'< «e validly given to the master and wardens, why may they not also, a<. prices not agreed upon by the parties, nor accord- ing to the market value, but at rates arbitrarily fixed by law, be authorized exclusively to load and unload ships, to fiynish them with all needful supplies, and to j)erform all the services of consignees, com- mission merchants, and ship-brokers touching incoming and outgoing cargoes ? In expressing these views we have no purpose to impugn anything heretofore said by this Court as to the power of the States to establish inspection, quarantine, health and other regulations, within the sphere of their acknowledged authority. The constitutional validity of such regulations is as clear as the power of Congress to establish regulations of commerce. It is no objec- tion to the former that both operate upon the same subject. In Steamship Company ?. Port Wardens (6 Wall. 31), Held: B. N. A. ACT, 1867 — SECT. 91, § 3, FEDERAL LEGISLATIVE POWER. 139 ican nids inse, four jOV- pula- iecre- lonial hould objec- U. S., or the le Port s iluty utional aw, the articles Act as tmhts of .lued by IS, why accord- |law, be jm with |es, com- )utgoitig inything istablish sphere as the 10 objec- Thsit a Statute of a State enacting that the Master and Wardens of a port shoxild be entitled to demand and receive, in addition to other fees, the sura of five dollars, whether called on to perform service or not, for every vessel arriving in that port, was a regulation of commerce, and was unconstitutional and void. Ill Fcnmicnla Telegraph Co. v. Western Union Telegraph Co, (96 U. S., S. C. 1), Held : That under the powers conferred upon Congress to " regulate com- merce," the Electric Telegraph, as a powerful agency of commerce and inter-communication, comes within the controlling power of Congress as against hostile State legislation, and a Statute of Florida attempting to confer upon a single corporation the exclusive right of transmitting intelligence by telegraph over a certain portion of its territory is inoperative and void as conflicting with these powers. Ill Si'ennott v. Davenport (22 How. 227), and Foster v. Davenport) 22 How. 244), Held : That towboats and steamboats as instruments of commerce, when federally regulated and licensed, are not subject to State legislation. In Gibbons V. Oyden (9 Wheaton, U. S., S. €. 1), Held : That the Acts of the Legislature of the State of New York granting to Kobert R. Livingston and Robert Fulton the exclusive navigation of all the waters within the jurisdiction of that State, with boats moved by fire or steam, for a term of years, are repugnant to that clause of the Constitution of the United States which authorizes Congress to regu- late commerce, so far as the said Acts prohibit vessels licensed, accord- ing to the laws of the United States, for carrying on the coasting trade- from navigating the said waters by means of fire or steam. In Veusie et al v. Moor (14 How. 569), Held : That a license to prosecute the coasting trade procured from the collector of the Port of Bangor conveys no privilege to use free of tolls, or of any condition whatever, the canals constructed by a State, or the water courses partaking of the character of canals exclusively within the interior of a State, and made practicable for navigation by the funds of the State, or by privileges she may have conferred for the accom- plishment of the same end. 3. The raising of Money by any Mode or System of Tax- ation. In Dow V. Black, L. R. 6 P. C. 282, their Lordships held :— That the 3rd Article of Sect. 91 is to be reconciled with the 2nd Arti- cle of Sect. 92 by treating the former as empowering the Supreme 140 B. N. A. ACT, 1867 — SECT. 91, § 5-8, FEDERAL LEGISLATIVE POWER. Legislature to raise revenue by any mode of taxation, whether direct or indirect; and the latter as confining the Provincial Legislature to direct taxation within the provinces for provincial purposes. 5. Postal Service. Tltc Pensacol't Tele.grnpli Company v. Western Union Telegrnph Company, 96 IT. S., S. C. 1 : Tlie Act of Congress of July 24, 1866, entitled "An Act to aid in the construction of Telegraph lines and to secure to the Government the use of the same for postal, military and other purposes, so far as it declares that the erection of telegraph lines shall, as against State inter- ference, be free to all who accept its terms and conditions, and that a Telegraph Company of one State shall not, after accepting them, be excludeil by another State from prosecuting its business within her jurisdiction, is a legitimate regulation of commercial intercourse among the States, and is appropriate legislation to execute the Powers of Congress over the Postal Service. 8. The lixing ot'and providing for the Salaries and Allowances of Civil and other Officers of the Government of Canada. Ill Lijirohon v. City of Ottiuoa (2 Out. App. 522), Held, by a unaiiiniDUS Court, (Present : — Spr.ijrue, C, Hagarty, C. J., C. P., Burton & Patterson, J. J. A.) That a Provincial Legislature has no power under sub-sections 2, 8, lo and 16 of sec. 91 of B. N. A. Act to impose a tax upon the offi- cial income of an officer of the Dominion Government. That the salary of an otHcer of the Dominion Government fixed by the Parliament of Canada is not subject to reduction by the imposition of a tax made directly or indirectly by or through a Provincial Legis- lature. (Reversing 40 U. C, Q. B., 478.) Held, further (atloi)ting the reasoning of the Supreme Court of the United States in McCuUoch v. Maryland, 4 Wheaton, 428), that all subjects over which the Sovereign power of ihe local Provincial Gov- ernment extends, are objects of taxation, those over which it does not exlenil are exempt from taxation ; and that this power does not extend to those means or instruments employed by the Dominion Government to carry into effect the powers conferred upon that body. That all Government officers as public servants of the Dominion Goverinnent are an essential part of the means and instruments by which the Government of the Dominion is carried on, and as such are not objects of taxation by the Local Government. B. N. A. ACT, 1867 — SECT. 91, § 10, FEDERAL LEGISLATIVE POWEK. 141 the at all Gov- ;s not xtend imeut Spraggo, C, said : The powers of the Dominion Legislature and <»f tilt! Provincial Legislature are dii>tril)nted in classes assigned to each. The Provincial Legislature having only the powers sj-ecifically conferred; the Dominion Legislature having, besides those specifically conferred, all [)0wer3 not specifically conferred upon the Local Legisla- ture. In Emvs or al. v. Iludon ct iil., (22 ]a. C. J., p. 2G8 :) Hold, that the L('i];i.Hlatuic of the Frovinct; of Qiiobcc has not the power to d(claro seizable the salaries of employees of the Federal Govcriinieiit and that tlio exemption of the salaries of public employees from .seizure is a matter of public oriler. In McCuUvch v. The Sf'ite of Maryland (4 Wheat. 429). held . That the State Governments have no riglit to tax any of the Constitutional means emjdoyed by the Government of the Union to execute its Constitutional powers. See sect, 92, ss. 13, as to the powers of the Federal and Provincial Govern- ments in the regulation of the busine.ss of Insurance Corporations. 10. Navigation and Shipping. The exclusive power of nuikini: laws relating to the navigation upon the navigable waters throughout tlie Dominion has been confided to the control of the Parli.inient of Canada. Cooley observes (Cons. IJmit. p. 589) : That the term " navigable " at Common Law was only applied to those waters where the tide ebbed and flowed, but all streams which were of sufficient capacity for useful navigation, though not called navigable, were public, and subject to the same general rights which the public exercised in highways by land. There has been a very general disjiosition to consider all streams public, which are useful as channels of commerce, wherever they are found of sufficient cajiacity to float the products of the mines, the forests, or the tillage of the country to market. (p. 593). The State has the same power of regulating the speed and general conduct of ships or other vessels navigating its water high- ways, that it has to regulate the speed and conduct of persons and vehicles ujjon the ordinary highways, subject always to the restriction that its regulations must not come in conflict with any regulations established by Congress. In King v. Russell (6 Barn, and Cress. 593), Sir John Bayley .said : The right of the public upon the waters of a port or navigable river is not confined to the purposes of passage ; trade and commerce are the chief objects, and the right of passage is chiefly subservient thereto. 142 B. N. A. ACT, 1867 — SECT. 91 , § 10, FKDEUAL LEGISLATIVE I'OWEU. Unless there are facilities for loading and unloading, of shij)j)ing and landing, unidx of the public benefit of a i)ort is lost. In the infancy of a port, when it is first ai)j)lied to the puri)oses of trade and eoninierce, unless the water by the shore be deej), the articles must be shipped in shallow water from ihe shore and landed in shallow water on the shore. As trade advances, the inconvenience and mischief of this mode are superseded by the erection of wharves and quays, and, what is perhaps an imjiroved 8])ecies of loading wharf, a staith. Rut, upon what l)rinoi])le can the erection of a wharf or staith be supjjorted ? It nar- rows the right of passage. It occupies a space where boats before had navigated. It turns part of the water way into solid ground ; but it advances some of the purposes of a port — its trade and commerce. Is there any other legal j»rinciple upon which they can be allowed ? — Make an erection for pleasure, for whim, for caprice, and if it interfere in the least degree with the public right of j)assage, it is a nuisance. Erect it for the |)urpo3es of trade and commerce, and keep it applied to the ]>urposes of trade and commerce, and the interests of commerce give it protection, and it is a justifiable erection and not a nuisance. In 3IcBean v. Carlisle et al, (19 L. C. J. 276\ Held : '^I'hat the public are entitled to all the advantages which a river in its natural state can afford for public purposes, and that there is no dif- ference in that respect whether the river is navigable or not, or float- able or not ; that it is the necessary consequence of this right of servi- tude that whoever impedes the natural flow of a river is liable to the damages occasioned thereby, and may be compelled either to remove the obstructions or to provide facilities equal to those the river afforded before the obstructions were made. Doricn, C.J., in delivering the Judgment of the Court, said : In the cases of Oliver and Boissonneault (Stuart's Rep., p. 526) and Chapman & Clarke (8 L. C. K., p. 147) the Courts held that mill- owners coidd not impede the floating of timber by the erection of booms. Proudhon, Uom. Tub., vol. 3, No. 683, cites an arrit of 26th Feb- ruary, 1569, which ordered that slides should be made in every dam to facilitate the passage of floating timber. In Oliva and Boissonneault, Chief Justice Sewell is reported to have said : " In every river which is navigable for boats or large ves- sels, or in every river which is floatable, that is, capable of floating logs or rafts (Nouveau Denizart, Vo. Flottage,) the public, as in England (Hale cle jure Mans, C. 3, p. 309) and in America (3 Kent's Cora., p. 344) have an easement or legal servitude, similar to the right of pas- sage in a public highway. navijral n. N. A. ACT, 18G7 — SECT. 91, § 10, FEDERAL LEGISLATIVE POWER. 143 Normmid et a) v. The St, Lawrence Steam Navigation Co. (4 Q. L. R. 1), Poleltc, J., jufj;u tliose streams, lly a free navipa- tioji must not be understood a navi^'ation free from such jiartial obstaeles and impediments as thc^ best interests of society may renth'r necessary. Ill Sfiife "/ l'rini.v//i'arallv3l of north latitude, and on the shores of the several i.slands thereunto adjacent, and in the bays, htarbours and creeks of the said sea-coasts and shores of the United States and of the said islands, without being n'stricted to any distance from the shore, with permission to land ujion the said coasts of the United States and of the islands aforesaid for the ])urpose of drying their nets and curing their fish ; provided that, in so doing, they do not interfere with the rights of private property, or with the fishermen of the United States, in the peaceable use of any part of the said coasts in their occuj)ancy for the same purpose. "It is understood that the above-mentioned liberty applies solely to the sea fishery, and that salmon and shad fisheries, and all other fisheries in rivers and mouths of rivers, are hereby reserved exclusively for fishermen of the United States. ^ " ARTICLE XX. / " It is agreed that the places designated by the Commissioners ap- pointed under the 1st Article of the Treaty between Great Britain and the United States, concluded at Washington on the 5th of June, 1854, ii^ solely other lisively I?. N. A. ACT, 1867 — SECT. 91, § 12, FEDERAL LEGISLATIVE POWER. 147 iqion the coasts of Her Britannic Majesty's Dominions and tlie United Stiitt'S, as i)laees reserved from tlie common right of tishing under that Treaty, shall be regarded as in like manner reserved from the common right of fishing under the preceding Articles, li case any question shoulvl arise between the Governments of the Unit(;d States and of Her Britannic Majesty us to the connnon right of fishing in places not thus designated as reserved, it is agi-eed that a Commission shall be ap- point'';! to designate such places and shall be constituted in the same nij'.jiner, and have the same jtowers, duties, and authority as the Com- mission appointed under the said 1st Article of the Treaty of the 5th of June, 1854. "ARTICLE XXI. " It is agreed that, for the term of years mentioned in Article XXXIII of this Treaty, fish oil and fish of all kinds (except fish of the inland lakes and of the rivers falling into them, and except fish pre- served in oil), being the produce of the fisheries of the United Slates, or of the Dominion of Canada, or of Trince Edw"i-il's Island, shall be admitted into each country respectively, free of duty. "AKTICLE XXIT. " Inasmuch as it is asserted by the Government of Her Britannic Majesty that the privileges accorded to the citizens of the United States under Article XVIII of this Treaty are of gi-eater value than those accorded by Articles XIX and XXI of this Treaty to the subjects of Her Britannic Majesty, and this assertion is not admitted by the Govern- ment of the United States, it is further agreed that Commissioners shall be ap])ointed to determine, having regard to the privileges accorded by the United States to the subjects of Her Britannic Majesty, as stated in Articles XIX and XXI of this Treaty, the amount of any compensation which, in their opinion, ought to be paid by the Government of ihe United States to the Government of Her Britannic Majesty iij return for the privileges accorded to the citizens of the United States under Article XVIII of this Treaty ; and that any sum of money which the sail! Commissioners may so award shall be paid by the Uniccd States' Government, in a gross sum, within twelve mouths after such award shall have been given. "ARTICLE XXIII. " The Commissioners referred to in the preceding Article shall be apj)oiutcd in the following maimer, that is to say : One Commissioner 148 B. N. A. ACT, 1867 — SKCT. 91, § 12, FEPEKAL LKGISLATIVK I'OAVER. shall be named by Her Britannic Majesty, one l)y the President of the United States, and a third by Her Uritannie Majesty and the President of the United States conjointly ; and in case the third Coniyiissioner shall not have l)een so named within a period of three months from the date when this Article shall take ett'ect, then the third Coniiiiis- sioner shall be named by the Representative at London of His Majesty the Emperor of Austria and King of Hungary. In case of the death, absence, or incapacity of any Commissioner, or in the event of any Commissioner omitting or ceasing to act, the vacancy shall be tilled in the manner hereinbeff)re ])rovided for making the original ajipointment, the period of three months in case of such substitution being calculated from the date of the happt ing of the vacancy. " The Commissioners so named shall meet in the City of Halifax, in the Province of Nova Scotia, at the earliest convenient |)eriod after they have been respectively named, and shall, before proceeding to any business, make and subscribe a solemn declaration that they will impartially and carefully examine and decide the matters referred to them to the best of their judgment, and according to justice and equity ; and such declaration shall be entered on the record of their proceedings. " Each of the High Contracting Parties shall also name one person to attend the Commission as its agent, to represent it generally in all matters connected with the Commission. "ARTICLE XXIV. " The proceedings ishall be conducted in such order as the Commis- sioners appointed under Articles XXII and XXIII of this Treaty shall determine. They shall be bound to receive such oral or written testimony as either Government may present. If either party shall offer oral testimony, the other party shall have the right of cross- examination, under such rules as the Commissioners shall prescribe. " If in the case submitted to the Commissioners either party shall have specified or alluded to any report or document in its own exclusive possession, without ainiexing a copy, such jtarty shall be bound, if the other party thinks proper to apply for it, to furnish that party with a copy thereof; and either party may call upon the other, through the Commissioners, to produce the originals or certified copies of any papers adduced as evidence, giving in each instance such reasonable notice as the Commissioners may require. " The case on either side shall be closed within a period of six months from the date of the organization of the Commission, and the of this tlieni in "f Urea of Print United ■Artinlos at whic ation of have giv of the H the othei Ward." B. N. A, ACT, 1867 — SECT. 91, § 12, FEDERAL LEGISLATIVE TOWER. 149 Commissioners shall be requested to give their award as soon as possible thereafter. The aforesaid period of six months may be extended for three months in case of a vacancy occurring among the Commissiouers under the circumstances contemplated in Article XXIII of this Treaty. "ARTICLE XXV. " The Commissioners shall keep an accurate record and correct minutes or notes of all their proceedings, with the dates thereof, and ma} appoint and employ a Secretary and any other necessary officer or officers to assist them in the transaction of the business which may come before them. " Each of the High Contracting Parties shall pay its own Commis- sioner and Agent or Counsel : all other expenses shall be defrayed by the two Governments in ec^ual moieties, "ARTICLE XXXIL " It is further agreed that the provisions and stipulations of Articles XVI II to XXV of this Treaty, inclusive, shall extend to the Colony of Newfoundland, so far as they are applicable. But if the Imperial Parlia- ment, the Legislature of Newfoundland, or the Congress of the United States, shall not embrace the Colony of Newfoundland in their laws enacted for carrying the foregoing Articles into etfect, then this Article ahull be of no effect; but the omission to make provision by law to give it effect, by either of the Legislative bodies aforesaid, shall not in any way impair any other Articles of this Treaty. "ARTICLE XXXIIl. "Theforgoing Articles XVI IT to XXV, inclusive, and Article XXX, of this Treaty, shall take "fleet as soon as the laws recjuired to carry tlu'm into operation shall have been passed by the Imperial rarliameut of (Ireat Hritain, by the Parliament of ('anada, and by the Legislature of Prince Edward's Island on the one hand, and by the Congress of the United States on the other. Such assent having been given, the snid Articles shall remain in force for the period of ten years from the date at which they may come into operation ; and further until the expir- ation of two years after either of the High Contracting Parties shall have given notice to the other of its wish to terminate the same ; each of the High Contracting Parties being at liberty to give such notice to the other at the end of the said period often years, or at any time after- ward." 150 B. N. A. ACT, 1867 — SECT. 91, § 12, FEDERAL LEGISLATIVE POWER. Tbe Acts necessary to enable these Articles to be carried into eflF.-'ct wore passed by the Imperial Parliiinient of Great Britain on the 6th Auiiiist, 1872 ; by the Parliament of Canada on the 14th June, 1872; by the Leiiislature of Prince Kdward Island (which did not at that time form part of the Dominion) on the 29th June, 1872; and by the United States Conj^ross on tlio 2r)th of February, 1873. A Proclamation, dated Washington, 7th June, 1873, fix«^d the Isl of July of tliat year as the day on which these Articles should come formally into operation. In I he case of Newfoundland, it was not until the 28th of March, 1874, that the necessary Act was passed by that Colony ; and a Proclamation, issued on the 2!»tli of May of the .'■ame year, fixed the 1st day of June, 1874, as the day on wliich the Fishery Articles of the Treaty of Washington, so far as they relate to Newfoundland, should come into efToct. In order to estimate the advantages derived respectively by the fishermen of the United States and of Great Britain, under the terms of the first portion of Article XVIII of the Treaty of Washington, of 1871, the Commission had to determine the value of the privileges granted to each country respectively by Articles XVIII, XIX, and XXI of that Treaty, which were not enjoijid under the Ut Article of the Convention of the 20th October, 1818, Articles XVIII and XXI of the Treaty of Washington superadded to the privileges conferred ujtou the United States' citiecns by the Convention of 1818:— (1.) "The liberty to take fish of every kind except shell fish, on the sea-coasts and shores, and in the bays, harbours, and creeks of tlu; Pro- vinces of Quebec, Nova Scotia, and New Brunswick, and the Colony of Prince Edw.ard Island, and of the several Islands thereunto adjacent, without being restricted to any distance from the shore, with penuission to laud upon the said coasts and shores, and Islands, and also upon the Ma},'dalen Islands, for the purpose of drying their nets or curing their fish ; provided that in so doing, they do not interfere with the rights of private property, or with British fishermen in the peaceable use of any part of the said coasts in their occupancy for the same purpose. " It is understood that the above-mentioned liberty applies solely to the sea fishery, and that the .salmon and shad fisheries, and all other fisheries in rivers and tin; mouths of rivers, are hereby reserved exclu- sively for British fishermen. (2.) " The admission into Canada of ' fish oil and fish of all kinds, (except fish of the i'.dand lakes and of the rivers falling into them, and except fish preserved in oil) being the produce of the Fisheries of the United States,* free of duty. (3.) "The enjoyment of these privileges to continue during a period of 12 years certain. B. N- A. ACT, 1867 — SECT. 91, § 12, FEDERAL LEGISLATIVE POWER. 151 "Similar privileges are granted by Article XXXII in regard to the Colony of Newfoundland." Articles XIX and XXI confer the following; privileges upon British sub. jccts : — (1.) "The liberty to take fish of every kind except shell fish, on the eastern soa-coasts and shores of the United States north of the o9th parallel of north latitude, and on the shores of the several islands there- unto adjacent, and in the bays, harbours, and creeks of the said sea coast and shores of the United States and of the said islands, without being restricted to any distance from the shore, with permission to land ujion the said coasts of the United States and of the islands aforesaid fur the purpose of drying their nets and curing their fish ; provided that in so doing, they do not interfere with the rights of private property or with the fishermen of the United States in the peaceable use of any part of the said coasts in their occupancy for the same purpose. " it is understood that the above-mentioned liberty implies solely to the sea fishery, and that salmon and shad fisheries and all other fisheries in rivers and mouths of rivers are hereby rese'" 'id exclusively for fisher- men of the United States." (2.) The admission into the United States of " fish-oil and fish of all kinds (except fish of the inland lakes and of the rivers falling into them, and except fish preserved in oil) being the produce of the fisheries of the Dominion of Canada, or of Prince Edward Island " free of duty. (3.) The enjoyment of these privileges to continue during a period of 12 years certain. Article XXXII extends the above-mentioned privileges, so far as tlu-y are applicable, to the Colony of Newfoundland. Upon this biisis Great Britain asserted that the privileges specitied in Articlo XVIII of the Treaty of Washington, of 8tli May, 1871, exceeded in value tlie privileges speeiriod in Articles XIX and XXI, and claimed $12,000,000 for tlio IXiuiinion of Canada and $2,880,000 for Newfoundland. A Commission composed of His Excellency Monsieur Maurice Dolfosse, Envoy Extraordinary Hnd Minister Plenipotentiary of His Majesty the King of the Belgians, at Washington, named liy the Anibassador at London of the Empe- ror of Austria-Hungary; the Hon. Ensign H. Kellogg, named by the President of the United States; and Sir Alexander T. Gult, K.C.M.G., named by Her firitannic Majesty, met at Halifax, Nova Fcotia, on the 15th day of June, 1877, and proceeded to hear the evidence and arguments uf Counsel of tlic Coutractiog Parties. At the Meeting of Ist September, 1877, the Counsel and Agent of the United States moved the Commissioners to rule and declare that : — 152 R. N. A. ACT, 18G7 — SECT. 91, § 12, FEDERAL LEGISLATIVE POWER. It ] It is not comiHjteut for this Commission to award any comi)ensation for commercial intercourse Ix'tween the two countries, and the advantages resulting from the practice of purchasing bait, ice, supplies, etc., etc., and from being allowed to tranship cargoes in British waters, do not constitute gooil foundation for an award of ccnnpensation, and shall be wholly excluded from the consideratit n of this tribunal. On the Gth September, 1877, the Commission, li;ivin;i; consiJcrod the motion submitted by the .\gent of the UnitcJ States at the Conference held on the 1st decided unanimously : That it is not within the com{>etence of this Tribunal to award com- " pensation for commercial intercourse between the two countries, nor " for the purchasing of bait, ice, supplies, &c., «&c., nor for the perniis- "sion to tranship cargoes in British waters." After this deci.sion wa.s rendered, Sir Alexander T. Gait, among other things, said : I find that the effect of the motion, and of the argument which has been given uix)n it, is to limit the power of this tribunal to certain spe- cified points. This definition is undoubtedly important in its conse- quences. It eliminates from the consideration of the Commission an important part of the ca.se submitted on behalf of Her Majesty's CJov- ernmeiit, so far as this jiart forms a direct claim for compensation ; but at the same time, it has the further imjiortant effect that it defines and linuts the rights conceded to the citizens of the United States under the Treaty of Washington. 1 confess to a great feeling of disajipointment that such an import- ant part of the question connected with the settlement of the fisheries dispute should apj^arently be removed, or partly removed, from the jios- sible consideration and adjudication of this tribunal, and I am bounil to say that my conviction of the intention of the parties to the Treaty of Washington is that this was not their purpose at the time. IJut I am met by the most authoritative statement, as to what were the intentions of the jtarties to the Treaty. There can be no stronger or better evidence of what the United States proposed to acquire under the A\'a3hiugton Traity, than the authcjritative statement which has been jnade by their Agent before us here, and by their counsel. We are now distinctly told that it was not the intention of the United States, in any way, by that Treaty, to provide for the continuation of these incidental privileges, and that the United States are prepared to take the whole resjxjnsibilit)', and to run all the risk of the re-enact- ment of the vexatious statutes, to A'hich reference has been made. The in the san •nission i award shoi 1?. X. A. ACT, 18()7 — SKCT. 91, §12, FEDERAL LEfilSLATIVE I'OWEU. 153 n le 1-3, lid iioa Ist om- nor 11113- iunj?s, \\ l>a3 conse- J Gov- anvl umleT es m\ lort- ,mul to raty of lit were itrouger 1^ under ich ^»«3 ii. ^Ve United lation of Imred to -enact- The responsibility is accepted by and must rest upon those who rtjipcal to the strict words of the Treaty as their justification. On the 23rd dny of Novoiubor, 1877, llie Coininission closed tlioir proceod- [w^H by rendering tlio fidlowing awurd : Tbe undersigned Cnniinissioners ap]iointc(l under Articles XXII and XX 1 11 of tbe Treaty of Washington of tbe Stb of May, 1871, to deter- mine, liaving regard to the privileges accorded l)y the United States to tbe subjects of Her IJritannic Majesty, as stated in Articles XIX and XXI of said Treaty, the amount of iiiiy coiiipeiisation which in tbeir opinion ought to be i)aid by the Government of the United States to tbe CUtverninent of Iler Ih'itannic Maji'sty, in return for the jirivileges ucconled to the citizens of the I'^nited States under Article XV'III of the said Treaty ; Having carefully and impartially examined the matters referred to them according to justice and equity, in conformity with tbe Solemn Declaration made and subscribed by them on the Fifteenth day of June, One Thousand Eight Hundred and Seventy-seven : Award the sum of Five Millions Five ?Inndred Thousand Dollars, in gold, to be paid by the Government of the United States to tbe Government of Her Britannic IMajesty in accordance with the provi- sions of the said Treaty. Signed at Halifax, this twenty-third day of Xovember, One Thou- sand Ki'dit Hundred and Seveutv-seven. Maurice Delfosse, A. T. Galt. The United States Commissioner is of opinion that the advantages accruing to Great Britain under the Treaty of Washington are greater than the advantages conferred on tbe United States by the said Treaty, and he cannot therefore concur in the conclusions announced by his colleagues. And tbe American Commissioner deems it his duty to state further that it is questionable whether it is competent for the Board to make an award under tbe Treaty, except with the unanimous consent of its members. E. H. Kellogg, Cowjiiisfiloner. The question of a unanimous award would hardly have been put forward, if, in the same Treaty, it had nut been lorinally stated that, as regards the com- mission which would sit at Geneva lor the settlement uf the American el.iims resulting from the destruction of properly by the steamer Alabama, a urgority award should prevail. 154 n. N. A. ACT, 18G7 — sect. 91, § 12, fkkeual LEcasLATivr, I'ower. m The iibstract qui'stion linsbccn viirioiiply trciitcd by writers, and a dif-tiiiction has been raised butweou jtrivati- and international arbitmtions, many holding that in tlit; absence of agrccimnt {^ivinj; the majority jk wer to render an award, arbitratiirR must be unanimous in arbitrations concerninjj; private matters, — but that in pubiic nr ititernational arbitrations a niajurity is ooinfietent to make an award. It is obvious that an arbitration whieh wouid pliee the result in the hands and at the mercy of one oi' the parties would be a mockery, and the American nation were too sensitive of their diunity to adopt sueh a narrow view, and tiity set the question at rest by payin}^ the amount awarded. The precedent is valuable, in interpretini^ Intf'rnalioiial Treaties in tho future; and is more so on account of this peculiar stipulation of the Geneva arbitration, which mij^iit create a strong presumption for insi.stinil&<» li. N. \. ACT, 1807 — si;(T. 01, S 12, i'f,di;i;.\i, i.i'(iisi,\tivk powkij. 155 .led liciin a it 'an., infers psary. I state law, ic, of In the louche drift bning, IntaiD- inp: one lish (a shad). Mowat si-izod both huat and m-ts, an 1 declared tliein fori', itcd to tlie Cmwii, a.s heint; si ized and eonliseated ''on view" under imk- of tlic i)nivihii>nH of tlic Fishery Aet, 1S(!S, Mel''ee (•(mfeiided tliat he had a rijiht to fisli for .salnidu in tlio bay, how and wlien he liiied, |irovi(h'd lie kept more than three niileH from shore, and, as lie had •;onc more than three \mU'.n on the iiiuiit in (|iiestioii, he brouLdit an action af^.dn.st M(twat to recover the vahio of hi> boat iind nets, and (hiinages for beini; previinted from carryiiij; on his business. The jury found tliat tlic fisliiny took phico more than three inile.s lioin >liorc. There was no doubt, however, tliat it was within the bay, as it was ably rever.-\vick hceainc part of tin- |)iiniiiiiiiii of Cimada, tlic whole of tlie Bay of Clialtiirs hiciimc put of tin- |)"iiiiiii(iii. (h) The Bay of Clialours is wliolly within thr jaws of the land, lunl is al\Ay to the Bay of ("lialcurs, and as tlu! nets and Ixtat wow. adinittciUy iK-iiig used for (Iriftiui; for salmon in the I!ay of Chaleiirs, whetluT within or without a limit of three miles from the land or shore of Xew Ihuns- wick or Quebec, makes no dilVereiice, they heaime confiscated to Her Majesty under .section 10, sub-section 4, of that Act. Further than that, the boat and net.s were afterwards, and after duo hearing of tlie matter, adjudired to be confiscated. As to tho jirisdietion of the maj^is- trate, section 18, sub-section 3, of tlie said Act is conclusive. By that sub-.scc- tion it is enacted that " wiierc any otfencc under lliis Act is committed in, "upon, or near any waters forming the boundary between ditfercnt counties, "or districts or fishery districts, such offence may bo prosecuted before any " nmiristrate in either of such counties or distrieis." etc. Tlie questions raised in this ca.so have been the -ubjcct of a very exhaustive review of the international law, in the answer fif tlic Crown'.s Counsel, before the Halifax Fishery Commission, to the Brief of the United States, Item- braces : 1. The three miles limit, as regard, the right of fishing on the high sea, es])ecially the Bay of Chalenrs, and all the P>ays of America, more than six miles wide, — with the inciilental (luestion of the headland controversy. 2. The procedure of seizure, which is assimilated to the Customs forfeitures and seizures on land, — by the law of Knglaud, of the United States, and of Canada, — reversing the rule of the common law, which obliges the plaintiff to j)rove the right he is seeking to enforce, and throwing upon the defendant the burden of proving that his goods, ships, or other property are not liable to seizure. The document referred to is too lengthy for a work of this description, but on all questions of that nature it will be found profitable to consult it. *i 158 D. N. A. ACT, 18G7— SECT. 01, § 12, FEDERAL LEGISLATIVE POWEU. Inland Finhc)''u'M. Tlic I'arliiiinent of Caniula is aUo cnipoworiMl untlor tliis section to pnss tlio nccchKiry Inws for protcctinj» tiic brwd offish, and for ro^ulatin^ the takinirand fuiiii;: » decision that, under this section, the J>oininion Parliament is authorized to u'rant an exclusive license to fish in « iioji-ii(l:il river when the bed of the river is in the Crown, althouMl tliat tho Dominion Parlianiont had tlio rit hy ajiproiiriatc legislation to rcijnlatt! the tislicrios, that is, tho tinu' and manner of fishin<,', hnt contrndtd that it nuild not interfere witli jaivate property — with tiie riyhts of tishing which already existed by law. The ]>laintiff contended that hy the terms of the T^. N. A. Act, sec. 91, ss. 12, Sea Coast and Inland Fisheries (the latter of which must embrace non-tidal rivers) are aasigneil exclusively to the Vedeml I'arlia- raent, and als<» that by section ;"» of the .'hil schedule " Rivers and Lake Improvements " lire declared to be the ]ao))erty of Canada, and that fisheries being given to Canada this necessarily carries with it, as an incident, whatever powers the Federal I'arliament may deem it neces- sary to exercise for the jiroper management and control of the fisheries, whether by granting lease or otherwise. The Jmliiuicnt of the majority of the Court (Alien, C..)., Wcldoii, and Duff, J. J..) was delivered by Allen, C. J. There are numerous other subjects besides the Fisheries over which the exclusive control is given to the Dominion Farliament, and by M'hich either the jtro]>erty or the civil rights, or both, of the people of this Province are affected, such as trade and commerce, navigaticm and shijiping, bankruptcy and insolvency, marriage and divorce ; and yet it has never been contended that the Local Legislature would have any power to legislate upon any of these subjects. Indeed this Court has already decided in the case of Regivti v. Chundlcr, 1 Han. 548, that the Legislature of this Province has no authority, since the riiioii, to pass an Act relating to Insolvent Confined Debtors, because it ridated to insolvency — a matter over which the Dominion Parliament hud the exclusive control under " The British North America Act," though i' was contended in that case that the Act in ([Ucstion merely allecte«l the civil rights of debtors in respect to their discharge from j>risnn. The eflect of that decision is that the Local Legislature has no right to deal with any subject which, even indirectly, relates to a matter over which the Dominion Parliament has the exclusive jiower of legislation. I can- not distinguish this case, in principle, from Ri'rs bi'twren tlx- Federal and rrorincial Uovernmont: but in that case on appeal to the I'rivy Council (I.. H. 6 I*. <'. 272) the construction of the majority of the Couit was disapproved, anil their l.cril.-hips expressly approved of the viewg of Fisher, J., also the dissootin); Judge in that case. (See report of (Jiifen v. Dow, under sect. 92 M. 13).] IGO U. N. A. ACT, 1 807 — SECT. 01, § 12, FEDERAL LEGISLATIVE POWER. It was adinittctl on tlioar<,'nineiit tliat the Doiuininn Parliaiiiciit liad the ri^'lit t(» Ic^^slate r(',sj)i'('tiii<,' llu- lislii'vii's in titlal rivt'is ; anil tliat, so far as ii'latctl t(» tin; tiino nni'orth Anuaica Act, 1. SOT," and the Fisheries' Act ])as.sed by the Tarlianient of Canada, hatl power to grant the license in (juestion. liivers have been divideil into three classes, or rather presented in thrc(! aspects. First, wlusn they are altogether ju'ivate, such as shallow streams ; second, when they are private projM-'rty, but stibject to the jiulijic u.se ; thirdly, when the u.se and pntperty are in the jtublic. The Aliramichi aiVords an illu.stration of the three classes. It is entire- ly ]»rivate property in one part ; private projKjrty, subject to the i)ubhc use, iu another, and altogether [tublic in another. Hale, and all the li"« B. N. A. ACT, 1807 — SECT. 91, § 12, FEDERAL LEGISLATIVE POWER. IGl old writers upon tlie coiniiKin law, define anavij^'altlo river to be one in wliicli tlie tide ebbs aiiassage of the fish or l)y such a iiKide of catching as will lead to their destruction or injury. Ifence the necessity of legislation to secure ihis object. In tidal or navigable rivers, all the Queen's subjects have the common right to tish. Previous to the Union of Canada, Nova Scotia and New Brunswick, the Legislatures of the different Provinces enacted hi ws for the protection and rcgidation of the fisheries. The i»ubli(; interests demand that so valuable an industry should l)e fostered and ])rotected, and such legis- lation wi. < necessary in the interest of the owner of the fishery. To attain this end, each separate Legislature most scrui>ulously abstained fruni any interference with the right of iiroi)erty of the rijtarian pntprie- tors in their fish. Though they were each omni'iotent within their own limits, in no one instance that I can discover did they attempt to deal or interfere with the right of the riparian ])roprietor; simply pro- viding for the protection and growth of the fish. 1G2 II. N. A. ACT, 18G7 — SECT. 91, § 12, FEDEKAL LEGISLATIVE POWER. At llie time "The British North America Act, 1807," passed, tliere were hiws in force in the tlirec; ('onfederated Provinces, for the rcj^nila- tion and jirotection of the lislieries, in each of which the authority to gi"ant any right of fishery was confined to tlie nn<,'ranted jiortions of the res))ective Trovinces. In this state of things the Union was agreed to, and ratified by a Parliamentary declaration of its t(!rms, and of the constitntion of the Legislative authority in the Dominion, which lelined the powers of the Parliament and the Legislatures of the resjiective Provinces. All the powers ]>ossessed hy the Legislature of New Brunswick still exist as ]»otential as ever, but they are distriJMited between the Parliament and Local Legislature, and are exercised in each according to the limitations of the constituting Act The Lcgislature-s of the different Provinces were empowered to make laws exclusively ujion the classes of subjects enumerated in the IGth paragniph of the lt2nro]>rietfjr. In conferiiug upon the I^ocal Legislatures the power to legislate upon jiroperty and civil rights, I am of opinion it was the intention that this ])ower should oidy be trenched ujion to the extent re(|uired to euidile the Parliaiuent to exercise the authority to legislate u]ion the ditlci'eut sultjects assigned to it, and the Parliament, in legislating upon tlie subjects within its competency, can only so far interfere with pro- perty and civil rights as is necessary to work out the legislation upon the [larticnlar subjects si>ecially delegated to it. The authority to deal with the tish, the property of individuals, and to apjtropriate that pro- perty is not necessary to the working out of the powers relating to " Sea Coast and Inland Fisheries." Any otlmr construction brings the two classes into conflict. V)n the other hand, by construing "Sea Coast and Inland Fisheries" as an authority for Parliamentary legi.slation for the protection and regulation of tlie fisheries, there is no interfereiu-e with the rights of ])roperty, and each class preserves its power of legislation in its integrity — there is no conflict. This construction of the Act euiibles both cla.sses to run together, and is consistent with connnon sense, and no Act of Parliament should Ije construed contrary to C(jm- iniiu sen.se. It was not the intention of the B. N. A. Act, 1.S67, to give t(i tlie Parliament of Canada any greater power than had been ineviously exercised by the sei)arate Legi.slatures of the Provinces; that is, the general jiowers for the regulation atid protection of the fisheries ; and the Parliament of Canada appears in the language iiiiployed to apj)reciate their con.stitutional jmsition and author- ity, and to liave conceived the legislation so as not to interfere with 164 n. N. A. ACT, 1807 — sect. 01, § 12, fkdeual legislative power. tlu; ri<:1it of ]tro])orly. Tlic Act iuitlinrizcs tlio issniiit,' of fislicry licenses only where tlie cxdnsive lij^'lit uf lisliin_Lr are in the Crown for the benefit of the ])eoi»le of New Brunswick, and the exclu- sive rif^'ht of fishinroperty of Canada that w Third Schedule readx: 6. Amuliuratlona sur 1m lmo» et let riviere*. OWEU. 15. N. A. ACT, 18G7 — SKCT. 91, § 12, FEDERAL LEGISLATIVE POWER. 105 flslli'Vy alnM'ly ,„. vi;ilit Uhovity ll issiiL'. \\'u:\\ lUu own the ts o|>ora- n'scrved iiii in the le exclu- ,,>t uutlio- . Schetlule lil jiive tlie ; tlu" Vi^'llt. ty of each lall be the That it was ,rive to the lulliU matter," railiaiiuiiit of Canada any greater jjower than had been previously exercised by tlie sejiarate Legi shit u res of tlie I'ruvinces; tliut is, the general power for the regulation and i)roteetion of the fisheries. That the Act of the rarlianient of Canaihi, 31 Vict., c. 6U, recognizea tliat view, and, while it provides for the reguhition and protection of the fisheries, it does not interfere with i)rivate rights, only authorizing the granting of h-ases in fresh water rivers, where such rights have not aheady accrued, and that any hsase granted by the Minister of Marine and Fisheries to fish in fresh water rivers whieli are not the prijperty of the Dominion (»r in which the soil is not in the Dominion is illegal ; that where the exclusive right to fish has been acquired by grunt of the land through which such river fhjws there is no authority given by the Canadian Act to grant a right to fish ; and also that the niigrantedhind being in the Crown for the benefit of the people of New Jhunswick, the exclusive right to fish follows as an incident, and in such case is in the Crown as trustee for the people of the I'lovince, and a license to fish in such stream is illegal. The questions involved in the {irecccling case (Uobertson v. Stcadnian), with annther question as to the construction of the grant, were again raised between the same parties and in tlio same court — but differently composed — Uobertson, the defendant in tlic preceding case, having again attempted to tisli tor salmon with a fly, but from t!ie bank of anntlior part of the stream within tlie limits of the license given to the same licensee, his rod, reel, and line were forcibly taken t'roui him, and this led to the following action of trespass against the licensee. Steadman v. liiibertson et al. (2 Pugs. & Hurbidge, fi80) : The locality where the alleged trespass was committed was witliin the grant to the Nova Scotia and New Brunswick Land Co. After the usual granting clauses, the gruut concluded with: "also further excepting out of the grunt the bed and waters of the Mirumichi River," etc. It was held in this case by the Supreme Court of New Brunswick : — That the general power of regulating and protecting the fisheries iu this Dominion is in the Tarliament of Canada, but a license granted by the Minister of Marine and Fisheries to fish in fresh water rivers which are not the property of the Dominion, or in which the soil is uot iu the Dominion, is illegal. That there is no authority given under the Dominion Act 31 Vict., c. 60, to grant a right to fish in fresh water rivers where the exclusive right to fish has been acquired by grant of the land through A\hich such river flows. That when the lands on fresh water rivers have been grauted, the exclusive right of fishery is in the riparian owner. It is le of the I'ntvince exfliit^iv ly ; and a liceiisi' by the Dominion ^linister of Marine and Fisheries to fish in sn;h stream would be illej.'al. Tliat in a grant of land to the Nova Scotia and New Brunswick Land Co., which excepts the btnl and waters of a fresh water river through which it flows, this exception does not aftect their right to the fishery ; as the right to the waters, and its incidents does not dt'i)end upon and is not aflectetl by, the owuershij) of the bed of the river but of the rijxi — the bank. Fisher, J., in delivering the judgment of the Court, repeated much of his able dissenting opinion and reasoning in the preceding case of Eobertson v, Steadman, and said : — if the authority to legi.slate upon " Sea Coast and Inland Fisheries " erajxtwered the Dominion Parliament to interfere with private rights, and deal with the projierty in the fish, upon the same ]>rincijile by the authority to legislate ujxin " Navigation and Shipping," it would be enabled to the same extent to deal with the property in the ships of ship-owners. The right in the ship is no higher or more sacred for the shii»-(»wner, than the right in the fish for the riparian proprietor. Fisher J.; cited ChaMemore k li'uharth, (7 H. L. Cases, o^'l). Lyon V. Finhiuougers Comjxiny (L. K., Appl. Cases, 673.) In Mr.Creaity v. Virginia (94 U. S., S. C, p. 394), where tlie precise question to be detenuined was whether the Stat^j of Virginia could |>roliibit the citizens of otiier States from planting oysters in a river in that State where the tide ebbed and flowe*!, Mr. Cliii'f Justice Waite, in delivering the opinion of the Court, said : — The principle has long been settled in this Court, that each State owns the Ixids of all tide-waters within its jurisdiction, unless they have l)een granted away. In like manner, the States own the tide- waters themselves, and the fish in them, so far as they are capable of ownership while running, and for this purpose the State represents its Iteojde. In Smith v. Stole of Mle rivers the j)roprietinmcntin<; on tlio provision of llio U. S. Constitution (Art. 1, HOC. S, ss. ■)) wliicii cnnCors tin; oxciusive power on tlie (Jcncral (lovcrnnicnt "to coin nmncy. rc^inliito tliu value tht^cof and of foreign coin," says (tjonini. (J. 8. Const. Mc. ni:{): The (ibje'jt of the power is to produce uniformity of value tln-ougli- oiit the ruion, and tlius preclude its citizens fr(»ni the embarra.ssnieiits of a jierpctually lluclualiiig and variable ciureney. I'llackstone says (I Coinni. '2Ht) : " The power to coin nioney is one of the e.xclusive jirerogatives of sovereignty, and is almost universally exercised in order to preserve a i>roi)er circulation of good coin of a known value in the home market. As money is the medium of Commerce it is the king's prerogative, as the arbiter of domestic conunerce, to give it authority or make it current, that its valiu; may Ite known on inspec- tion. It was by special statute maile High Treason to counterfeit tho king's money as being a crime against the Supreme Kxecutive power for, if every individual were peruntted to make and circulate what coin he should please, there woidd be an o[)ening to the grossest frauds aud impositions on the public." 15. Banking, Incorporation of Ban k.-*, and tlie issue of Paper Money. If Ranking Corporations or private bankers uiight issue and eircnl iie notes, bills of credit, or paper certificates of any kind, as money, the exclusive power conferred upn the Federal Government over tlie currency would be wiiolly ineffect\»al. Macaulay (Hist, of Kng., c. 20) gives the following uccountof the cstablish- uicnt of the Bank of England : lU'fore the end of the reign of Charles the Second, a new mode of pay- ing and receiving money had come into fasliion among the merchants of the r-apital. A class of agents arose whose oilice was to keep the cash of the commercial houses. This new branch of business naturally fell into the haiuls o. the goldsmiths, who were accustomed to traffic largely in the precious metals, and who had vaults iu which great masses of bul- n. N. A. ACT, 180)7 — SECT. 01, § 12, FEDFliAL LEGISLATIVE TOWER. 169 lion coulil be secured from firo and from mbhcrs. It was at the shojis (if thef,'n ; and the people were no more disposed to reUiii|uish those advantages for fear of calamities which occurred at long intervals than to refrain from building houses for fear of fires, or from building ships for fear of hurricanes No sooner had banking become a separate and im))ortant trade, than men began to discuss with earnestness the (picstion whether it would be expedient to erect a national bank. The general opinion seems to have been decidedly in favor of a national bank, nor can we wonder at tliis: for few were then aware that trade is in general carried on to iinuh more advantage by individuals than by great societies ; and bank- ing really is one of those few trades which can be carried on to as much advantage liy a great society as by an indivitbial. Two public banks had long been renitwned throughout Europe, the Hank of St. George at Genoa, and the liank of Amsterdam. The immense wealth which was in the kiepiug of those establishments, the confidence which they ins])ircd, '.he prosperity which they had created, their .stabiHty — tried by panics, by wars, by revolutions, and found proof against all — were favorite topics. After the revolution, a crowd of plans, some of which resemble the fancies of a child or the (b-eanis of a man in a fever, were pressed on the (iovcrnment. In 1691 William Taterson, an ingenious, though not always a judi- cious, speculator submitted to the (iovernment a plan of a national bank ; and his plan was favorably received both by statesmen and by merchants. The jilan was that twelve hundred thousand pojinds should be bor- rowed by the Government on what was then considered as the moder- ate interest of ten per cent. In order to induce capitalists to advance 170 n. N. A. ACT, 18r>7 — SKCT. 01 , ij 1 '.', IKDKUAI, F.KCISI.ATIVK POWFU. tho TiKitiey jtronijiily on terms so fav(irul)le to the imMir, the .mib.Hrri- bers were to l)e inroriMiratcd by the iiaiii" of "The (loveriior aiidCnin- ]iaiiy of the Bunk of Kii^'lainl." The ('(-• poratioii was to have iioexcbi- sive j)rivih'<,'e, and was to bir restricted from trading; in any thing bat bills of exchanj^e, bullion, and forfeited pledp'S. I'lion this basis a Hill (Tt \V. iS: M. e. 20) was ncecordin«:ly jtassed, . . A clause was most jiroperly inserted whicii iidiiltitetl the Hank from advancing' money to tlu; Crown without autliority from I'arliament. Every infraction of this salutary ruK; was to l»e ininished by foit'cit ure of thrci; times tiie sum advanced; ami it was jaovided that the kin^' siiotdd not liave jtower to re' -ny part of the |ie!:alty. Ami thus a Hill which imrported onl , lose a new duty on ton- najje for the security and beiuifit of sucl; persons ns slionld advance money towards carrying,' on a war, was ri-ally a bill creating the great- est commercial institution that the world has ever seen. 17. Weights jiiul Measures. Story nn tin; provi«;inM of tlio U. S. ('(institution (Art. 1, see. H, ss. 5) ^ivinj |i('\v*. sect. 11 17) : " In Kngland the power is said by Mr. Justice l?lackstono to belong to the royal ])rerogative ; but it has been remarked by a learned com- mentator on his Work that the power ciinnot with projiriety be referred to tht^ king's [trerogative, for, from Magna Charta to the present time, there are above twenty .Vets of Parliament to tix and establish the standard and uniforn»ity of weights and measures." Jit i('/:stimc (1 Coniin. 273) snys : "The regulation of weights and measiires for the advantage of the public ought to be universally the same throughout the kingdom; being the general criterions which reduce all things to the same or an equivalent value. Jiut, as weight and measure, are things in their nature arbitrary and uncertain, it is therefore expeilient that they lie reduced to some fi.\(;d rule or standard, and it i.": aocessary to have recourse to some visible, palpable, material standard. 19. Interest. Mr. S; r-roant Stephen remnrks, (2 Comin. p. 94) : That the gradual relaxation of the laws against nsury wag due to the dilfiision of new opinions with respect to the policy on which the former system was founded. Its defence had in modern times always II. N. A. ACT, 18G7 — 8ECT. 91, § 19, FKI»KIIAL LF.C.I8LATIVE POWER. 171 pn- tJU- i'ln- \.ut from ishril vi<\«'d lUy. n Inn- iviince «fr*'at- r5 bfl»»"g •il I'om- , referred \n{ time. llish the ■re of the [iugilora -, le or an I in their , they ^ [to have La due to [liich the Is always i-estcfl on Iho apjtaront necessity of proteetinji the needy and improvi- dent friiiii extortiuii — an ahiisi" manifestly mon; incident to a l)ar<(«in for the loan of money than to any other description of contract; and, thoiij^h the dillieidty of putting,' an entire .stop to the mischief was inKpiestionahU', this was (h;emed no reason for ahstainin<{ from all attempts to check its career. On the other hand, it was insisted that tlie laws against iisnry were so inell'tMlual to deter men from advancing money on illegal interest and, when imt actually violated, were so easily capal)le of being (jvaded, as not to lie worthy of retention. It was said, moreover, that they tended to promote the very evil which they were designed to repress; inasmuch as jiersons who, in (ietiance of the hiw, engaged in advances of this description, found it necessary to compensate themselves for the legal peril, hy insisting on a mole exorliitant return for their money. .And it was further maintained tiiat these laws imposed an incon- venient and impolitic restraint up(»n the pricu; of money, which ought, like other commoditie.s, to he allowed to find its own level in the market. Vnder till- intluenceofthe.se views, the total abandonment of the former policy was at length resolved upon by the Legislature. Tlic •• iJysti.telcr," 18S0, p 238, siiys: Laws limiting the rate of interest are absurd. Their effect wonld he to |>roliibit any one who haay a most exorliitant rate, because the lender would have to protect himself against the risk of illegality, as well as that of bad security. Ill Rnsx ,'t<(l. V. Tkc City of Montrfil (-' L. N., p. 187), Superi.ir Ccurt, May. 187(1 : The Legislature of the Province of Quebec, by 41 Vict., c. 27, author- ised the Corporation of the City of Montreal, l)V a l»y-law, to exact an increase, addition or j.enalty on all arrears of a.s.se.ssment not paid within a certain delay. Held, that the claim by the Corp(»ration of a ten per cenf. increase on overdue assessments is, in elVect, a claim to charge interest at ten per cent. Anil that the Local Legislature, since the B.N.xV. Act, has no power to k'<;islati^ upon the sul)ject of interest. Johnson, .1., in rendering judgment said: By whatever name they call the exaction in question, it is, by law, still interest, and nothing else ; they cannot change its nature by chapi'ing its name. 172 n, N. A. ACT, 1807— SEf'i 01, § 20, fedkkal lkcfslative I'owf.r. 20. Legal Tender. The PXcluHivc power given to the Fc
  • ral (loverti merit to authorise tlicteinler ofoiiiiied or paper money in payment of ilebtA Ih touiiiled upon tho !ne- rul policy, which confided to the ;rener:d Government tlie re^niution of trade and commerce (ss. 2) and all Icginhition ns to currency and coinage (jH'*. 14) and the idcue ofpaiKT money, {hs. 1.').) The pnlicy is to provide and CNtahlinh a fixed ami unil'irni Htamlard of viiluo for money tlironi^hout the Dominion, by which cmnmercial and other dealin)i;8 of the citizetiH, aH well nn all nionied trinfiaetionfl, mi-^ht lie ruirulited, and u nolid foundation laid for the formation and di^char^'e of con(rae(>« and of tho obli<;u- tions creiited thereby. (Si-e Story, Comm. Cons., hcc. 1.10(5). In Wonthiiffv. Trnpvnll, (10 How. 11>(») it was held by the U.S. Supreme Court : That a provisicm of the charier of the Bank of the State of Arkan- sas, to the effect that the bills of the liank " .shall he received in all payments of dehts due to the State of Arkan.sas," constitiitt'(| a conti- nuinfj contract between the State and the bill-hnlders wliii-h ran with the bills; and an Act re])ealinf» this provision was held to be invaliil as to jireviously issued bills, and a tender tn the Slate uf such bills in payment of an indebtedness to the State wa.s hold t(» be a valid tender, althouj^'h the bills came into the po,s8es."jiou of the tenderer after the passa«,'e of the rej)ealing Act." Similar decisions in Furmun v. Nicholl, 8 Wall 44, and State v. Stoll, 17 Wall 425. Phillimorc rcniark<<, < International Law, 4 vol., p. 020) : It is a maxim of universal jurisprudence that if the oblifjee or cre- ditor refuse to receive hi.s due when tendered to him the debtor or obligor is not to suffer by his cajirice . . and if a tender by the dela- tor with refusal to receive by the creditor operates as a discharge by the lex loci contnictux it will be respected as a valid discharge every- where. Todd, (Col. Gov. in Col., p. 151), informs us that: Owing to serious financial emkirrassnients in the Colony of Queensland, ministers had tendered to the Governor their advice that, in order to sustain the j)ublic credit, there should \ie an immediate is.sue of inconvertible paper currency in the shajn; of Legal Tender notes to an amount not exceeding two hundred thousand pounds. The Governor, on Imperial considerations, refused to give the Royal assent to the Bill. On the resignation of th« Ministry, the emergency was met by a new Ministry, by the introduction of a Bill authorizing m 'M. u'Ut and id the 1 R(t\id ujireme Avkan- l in all V coiiti- AU with viiliil as , bills in I tender, ^ftov llie '0 or crc- lilebtor or the deb- jihargc by Le every- I'olony of jvice tliat, Jiiate issue Ir notes to Ithc Royal jmergency IvilUorizing B. N. A. ACT, 18C7 — SECT. 91, § 21, KKKKUAL LKOISLATIVK POWER, 173 tlie issue of treasury hills to the amount of three hun(heil tliou.sniul puuntU. Thia Hill received the assent of the Governor, the Colonial Secretary, Ixrd (.'arnurvon, exjirewsing hia entire aiij^rovul of the Govern(»r'8 conduct. 21. Bankruptcy and Insolvency. Ill the exercise nf the powers cnnrerred by tliiw Hult-seetion tlio Duiiiiiiion Pnrliaiiiciit pii!tt[), wliieli hiiperseded the Insolvent Act of 1S»!4 of the Province of Camiv . nnd ull mjeli le!;i>l.itiitii :i8 existed in llic several IVoviiics anterior to the B. N. A. Act, 1S(J7; and in 187;') it re- phu'cd the Act of 1SGJ>, by 38 Vict., cli. 1(5, wliicii was amended several tiincfl and at lust totally re|>*alul in the i;ri;i', aritMlitiiiy of il .seems not likely to be (Iruwii ill ([iie.stioii. The Hi-ti(>ial ohjiM-l of all hatikr^ipt aii<, whenever the latter are unalili* to >nsii^\tt relieve the niifoit iinati- and meritorious delitor from a .slavery of mind and hody, which cuts him olf from a fair enjoyment t)f the common heneliis of society, and rohs his family of the fruits of liis lahor, and lh<; lieni;fits of his |isiternal su|H-rinlendence. ill liv(jinn V. ('Iiiimtti'r ( I Ilitiiii.-iy 54h^, Ilehl, by tiicSu|trciiio (y'ourt ;li.sivp|y assioned to the I'ailiaiiienl of (.'a!iu :\rk, in wliicli ill.llitV U In ill'- KM, iUl'l lis iilh'd lusiv.'ly If IStlT, ss. i:j): slioiil'l 1,11 it hinl ■^inii V' lie Trivy enunci- titcil ill tliut CH.s*.' Ii)' llif Siijiifinc ('oiiil mI' New iJrunswifk was tli.siip- j.rovtM ill r„/(< V. W'^itsoii (.'! Q. li. |{. l.')7, ('. S.) IM.iiiinii(l..n, .1., Juj,'.' (|.i(': Mil ;iii|i'i-i;iiit nil limit |i.ir rAc.it; ilcs Licc'iisi-s ili- (^iii'-Im!!', ISTO, sur 1(! |ini(|iiit (U- ill vi'iiti! (I(!.s liii'iis cetto Ini, l;i Lt'j^islaliiri^ ilc la I'niviiwc dn (.^in'iiic a aj^'i ,lf ra vires; clli' a ii.siii|ii' iiik' jiirisiiiiiinii in d •liors dcs |iiiii\ Dirs spc X (|iii Ini sunt cdlift'li's par I'Ai-ti- dr r\ini'iii|n(' lirilaiiiiiiiiii! dii oiaii Ni.rd. .'m He lluiriii.in, Mil Iii.Milvi'iit (5 Ci.ii. I.. .1., X. S. 71), lftO!», SIk iwoihI. Co. Jill!;;!;, Hdjii : — Tlif Iiisulvciit. Ac' (if tin: lafi- I'loviliri! of (,'aiiada rcfjiiind tlial all iiiiliri-s n.'idi-i- that. Stat lit i- slinnld In- |iiililislii'd in tln' ( 'aiiada (ii/itli-. . . If till' Act is ti) l)(t I'liiisti iiL'd literally, it, intcili ivs directly wiili tlii; Slat lite (if Canada rcsiicctiii;^ iiisr I«},'islalion on "civil ri},'lils " and procedure in civil suits lielon;,'s to the Local {..ej^islutnre. Legislation aiikiii|itry an. J., N.S. 2i'l), Suv.iry, V.iu .Iu.l;.'c, h-l-l : 'J'lie Jioininion Parliament in legislating on haiikrujttey and insol- vfiK V, may, in carrying out its policy on these suhjeets, override any local enactments, and assert its paramount authority throughout the whole field of the law (tf pntperty and civil rights. Ill I'irliy rt nl. V. liurpfe. (Hutihuiy Klc(!tion I'utitioii), Diiff, J., said: In my opinion, Parliament had ample power to presftrilie the pio- eedure in JJankriiptey any Statute and unknown to the (Jomtnon I,aw. In some respects its policy is opposed to that of the Common Law ; in this esp»!cially, that it takes from the judgment creditor the preference that the (,'oinmon I-aw accorded to him as the reward of his vigilance. It involves a procedure peculiar to itself, without which it cannot be worked out. iJankruptcy and Insolvency are wcdl known legal terms exjiressitig systems of legislation with which the subjects of this country, and proba- bly of most other civilizcMl countries, are |M;rfectly familiar. They (hjHcribe in their known legal sense, provisions madi; by law forlhe administration of the estate of persons who may become iiankruptor insolvent, accord- ing to rules and delinitions prescribed by law, including of course, the conditions and the manner in which that law i.s to Iju brought into oper- ation, and the effect of its operatirui. Jiankruptcy thus has acijuired a legal techni<'al meaning. Ex v'l. termini, 'l impcjrts the necessary procedure f(jr the administration of one estate of the insolvent; the prescribing of the conditiotw and rules n. N. A. ACT, 1807 — SKCT. 'J\, it) L'l, I KDKUAL I.KOISF.ATIVK I'OWKU. 177 nil lir-r which it .shall li*; Itroiiuhl into oiMiiali* 1" on, HUM tl ic inaiinor o f hiiii;,'iii;^' it into operation. I)jinkrii|»t(;y an>lation ndieve timm from a state; of extreme linanttial e'lnhariassment, is williin the le;^islative capacity of that l.e^islatiirt'. That tho Proviticial A«l related expressly to a mall(!r " of a merely local or private; nature in the Province;," which, hy the) *J2nd .se;ction, .siih-8(jc. 10, eif the; P.. N. A. i\e't of IHOT, is assi;,'neil lo the eixclusivej eoniptttiijcy eif the Proviii'ial Le-j^'islatuie;. Tlial the compe;te-ne'y of the; Prratiein in that se.tion is tei mention varieius cate-j^'orie-s eif ^e'tie-ral Huhje'cts whiedi may lie- tie-alt \\itli liy h'^islatieiii. Tlie'ri; is no inelication in any instance; of anythini,' he-in^' ceinte'inplale-el, exi-e'pt what may Im- preiperly elis-rilu'el us ),'e'lieral le'j,'i.slatiem. Nej auch j,'e'neral law covering thifi 178 n. N. A. ACT, 18(i7 — sr.cr. 01, $1 21, i-kukkal m;(;islativk vowvm ](iiitioiilnr assdciatinii is iiIl>'j,'tMl over t«t liav<> liocn jmssi'd by the I >(iiiiiiiiiiii, . . and tu sii},';^'i'st tin; jKissihilily (»!' siicli ;i law as a ii'astiii w liy tlii^ ]m\v« V nl' (he I'liA iiicial I.c-'i^laltirc nvcr this l(«al and ]>i'ivatt' assdciution should he in alit'yiii\(i' (ir altn«,r(tlu'r taken away, is tu niaki,' a su<,'<^('sti(»n wliirh, if folluwcil up to its L'ciusu(jut'nces, wnnld «'i) ve ry far to (li'stroy that ipowir in all casi's. U|M»n the Haiuf |iiiiK'i|ik' hy arti 'Ic 7, which j^ivcs to th<' Pmninion the f'xcliisivf ri^lit nf hMrisIatin;^' jis to all nmltcrs coniinj^' under the head «»!'" Militia, Military anil Naval Service and l)efen( my 1 lartof the lanil in the l'r(»vincu ttf t^uehec nii;,dit ho taken hy the l)(iniiniijn Le;,'islalnre lor tla; |iur|K)se of military defence; and the ar^'iiiuent is, if ])uslied to its conse<|iien('es, that, hei^au-se this \vhi(;h has un\ lieen done as to some ]>artieular land mi^dit |»ossil»ly have been done, therel'nre, it not having been done, all power over that land, and, therefore, ov»>r all the land in the Province, is taken away, so far as relates to le;,'islation eoncerninu matters of a merely local or private nature: that, their Lordships I iiink, is neilhera necessary or reasonable, nor a just and jirojier construction. I.ord Selborne in deliverin;,' the jud^'tneiit of their Lordships, said : "The fa 't lliat this particular society appears upon the face of the I'ro- vincnal Act to have been in a state of eiuliarrassment, and in snch a financial condititai that, unless relieved by le^dslation, it nii^'ht have been likely to come to ruin, does not jaove that it was in any leL;al sense within the cji(e^'(try of insolvtiwy. And, in point of fact, the whole tendency of the Act is to keep it out of that cate;,'ory, ami not to briiif; it into it . . their Lordships are clearly of opinion that this is not un Act relatin;^ t«t bankruptcy and insolvency. In StunjB V. (^r<>ioi)iiii>h!ihh (I Wlifiit. VIW), Hold: That a State has authority to pass a hankru|it law, provided such law does not imjiair the oltlij,'ation of contracts within the meaninjj of th(! Constitution, Art l.s. 10, and provided that there l»e no Act of (,'on- gre.ss in force t(» establish a uniform systeni of bankruptcy contlicling with such law. In Dnmon'ii Appc.nl. Siiprmie Judirinl Court o/ Afntne, it waH eal That a statute m.'iy lie passed to {,'(» into cfiV'ct at a fiitiin; ilatc, and it is ininiatcrial whether the .suspension of its operation he hy its own express provision orhy viiliie of some paramount law, as, r. rovision of Stat. 187S, c. 71, sect. 1 o, anthorizini;: tho 8e(|Uestration of tlu; estate of an insdlvent williciut jirevious notice to him, is not unconstitutional for that cause. On I >eceiiilier Dili, 187 ; Ifixiftlon v. Miunr, o Wheat 21; iJev. Stat., e. 1, .sect. 3; Const. Maine, art. 1, .sects. 1, '.• ; V S. Con.st. 7th Amend., 14th .\mend. ; liairim v. Mi' Jiultitnovc, 7 Pet. 24:i; T,n/lor v. I'^rtn-, 4 Hill. 140. The opinion of the Court was delivered hy AnM.irroN, C..I.— ''"he insolvent law of this state, c. 74 of the Acts of I.S78, was enacted while the hankriipt law of the I'liited States was in full operation. The jirocj-edin^'s in the en';;: Iiefore U8 are under the in.solveiit law of this state, und were conimenceil since the repeal of the haiikrupt law. I. It is object oil that tlie statute of this state is nnconstituti'iml anil Void, U'caii.se enacted while the hankrnpt Act of the I nilt .» Slates Was ill full force. ll is provided hy s(it. 8 of the f.rst article of the Constitution of the I'mled States that " Congress shall have power . . . to establish . , . uniform laws on the subject of bankruptcies throughout the 180 U. N. A. ACT, 18GT — SECT. 91, § 21, FEDERAL LEGISLATIVE POWER. Unilcil States." Here is no prohiliition against the passage of lianknipt or insolvent law.s hy the state.s. As long as the National Government abstains from legislation on this snhject the states may act. " It is sntHcient to say," ol>serves Marshall, C.J., in St iDyes v. Ci'otviii int law iluiing the existence of an Act of Congress on tlie sultject. In other words, wliether the Act tinder discussion \n n force. Its validity is nncpiestioned unless absolutely void in its inception. No constitutional provision has been violated ; for the passage of such a law is not merely not prohibited, but it is iinjiliedly sanctioned by the clause giving Congress jiower over the subject-matter of Bankruptcies. The Legishilure may pass a law to take elfect instantly, or at a future day, or on tlie liajijK'ning of a future event. If the statute had said that it was to take ellect ujion and after the repeal of the bankruj)t law of Congress, there could have been no doubt as to its validity. But such is the ])recis(! effect of the law without the insertion of any such i)rovision. The Act of Congress is th(? paramount law on the subject when called into action. The law of the State is siibordinate to it. The eflicient acti<»n of the State law is su.spended for the time being ])rocisely as in the cases already considered, when a national bankrupt law was jiassed subsequently to a State law on the same subject. The State may pass a law which is sub »rdinate to the jiaramount authority of national leqislation, and is only subitrdinate to that, but which, when that ceases to have force by reason of its repeal, has at once the vigor of law. Whether the law of the State is existent and sujierseded by the subsequent legislation of Congnss, or is in(q)er- ative by reason of precedent congressional action, can make no differ- ence. In either case the efficiency of the State law is alike suspended and in abeyance while the Act of Congress is in force, and when that is repealed the law of the State at once and instantly becomes operative, and action may be had under its provisions. II. It is urged that the law was invalid because it did not go into coiMplete operation after its passage. Rut that is not requisite to its validity. It does go into partial operation on its passage. It was a law valid in all respects, and to be obeyed, except so far as it was in conflict with the statute of the United States. When that conflict ceased, the law went into full operation. It was a law to go into full effect when it cea.sed to Ije in conflict with the Act of Cojjgress, and whetln'r that was inserted in the Act, or left as the legal result from the relation of the State and National Oovernment to each other, can make no difference. Judgment afhru ed. 19 American Law Register N. S. 307. In Rf Denley A Co., (26 W. R. 885 ; 39 L. J. N. S. 53). Hold : ISli ll. N. A. ACT, lSn tlio :ui.ilo'_'ous pownr of le^i-^liilion coiiH in ll li)' thu V. S. Coiistilulinii oii ilie U. S. FimIltuI (ii)Vt'rniiieiit, tlnit: The old} '/oon which could in- otVered to inventors to disclose the secrets of thiiir disc»»veries would he the exclusive rij,'hi and prolit of using them as u monopoly, for a limited period. It was lienelicial to all parlies that the National (iovernimuit shoidd possess this power. The rij,'ht to useful invtuitions seems to helong to tlie inventors as a Common law ri^'ht. />i.ri>ii V. /.nntlon l^'niitll Ann» (\»iipaiiy (1 L. K. Apj'. C.ikos (i3'J ; 25 W. !{. 14-'), ll' tlif Ili.use of lioriln : That the (,'rown has the rij,'ht to the tiso of u patented process or invention without coniiiensation to tin; patentee. Thai this ri;,dit of the Crown is not liecause the ('rown is impliedly excepted from the elVect of the liCltcls Patent, Init hccailse the ])rivilcge ihcrelty granted is granted against the suhjects only, and not against the (.'rown. lUit, held, that in this case the contract lieing a contract of sale hy the defendants to the (.'rown and not a contract of agency, the defendants cannot, not heing agc-nts or .servants of the Crown, set nj) the immunity which the ('rown enjoys, and were liahle in an action l»y the plaintilV (as assignee of the patent) for an iid'ringenient. Ill l'e,ither* v. 77i«; (Jiiepn (12 L. J. N. S., 114) lulil : That un ordinary grant of Letters Patent to a suhjcM't, for an inven- tion do(!s not excludu the Crown from using the invention without the license of tile i'atentee. That the Crown is not rosponsihle for nn infringement of a patent Ity the Lords of the .Admiralty; the remedy is, hy action against the wrong-doeri. 23. Cdpyriglitfl. Hiilliiu, in his introduction totlic; Literiifuro of Kurope, wyn (vol. 1, p, .340), thot the eiirliesl instaiico of protirlioii iifronlu'l to a copyright for printing hook* was ill 1401) hy the Senate of Venice. If H. N. A. ACT, ISOT — SKCT. '.t|,§2:5, FKDKUAl, I.IUJISI.ATiVE PiiWKK. 18.". A (!(>pyii:;Iit WiiH :nliijittO(l to lie a cnmiiicni Lev lii^lit mid luiili r Hrcunvl by th(! Mitiiti! Ill' > Aiiiic, e. ID. Hy a iind U Viul. Iin|>. it wu.|iy- rif{lit xlitili bf tltinu'il iiur.oonal |iin|MT»y. Milt till- Miltji rt. (irciiiiyriuliix !.>. imw mainly ro^ulifed by llio Iinpi'iial Copy- ri^;lit Act (if 1S4'J (.1 ami t; Vict. o. I")), vvliicli rcpealcil H Amic, c. 19 — 41 <«co. ;{, c. Ii»7. ami 51 (Ico. .'{, e, !;"»»; (2 Stcpli.-i.'s ('.nii. |>. U). My r> ami ti Win. 4, c. t)5, it is cxtcmloi) toora/ Iftiircn. Al-o by •Iri^ioiiRof the t 'iiiiilf, /hnmnh'r I'itat ami Miisi-nl I'l r/nnniniiiit arc pntli'clnl by tlic oon- utiii 'liiiii MivcM !<• till- ('iipyii.;lil Act ol'IHl'i, ;il-(>cxtcii(lcil by spi'ci il stafiicH to (■;iyC'/ii'/(iy« ami /irint* ami grii/iliifr^, mnilih aiin.s an* a (Tor led to literary ami iidicr prniliiciiiins tboiiL'li tiisi publislioil in a lortMuii country. 'Hie liiip.riil Statute, ;{,S ami ,','.) \i.t.,c. 5.'<, jzive- lc^i>laliv(! eff.et to tliC Ddii'inion Oiip^rii^lil Act, IJH Vict., c. SH. Ill Uw V. linutUdije ( 10 .lur. N. S., !•."_»), Kimlcrsiey, V. C. sai.l : Kvory ('nityri^hl A<'t liiw for it.s ♦•iid and olijcct tlio oiicotimj^i'in«Mit of Idiiriiiiij;, iiiid jiii)f«'.sst'.s to eiic'otiruf'O K-iiniiii^ by lioldiiij^ out to men of Iciiniiii^ iitid j,'»'iiiii8 some adviiiitaj^n to aiisi- fioni tlin ooiiiposition and |iul)li(!utioii of their works; and iIk; sort of considcrutiuii indffs.scd is llii.s : to j^ive tho author .so <;oiuiMi.siii<,' and inihlishinj,' bis work a uiuiiopoly, liiniti-d in poiiit of duration, but still, iti fact, ii tiionopoly. It i.H it) the nature of a liar^'ain bet ween the jiublie and an author, that i.s, th(! cginjHjser of u work. The public, althou^li ft;elin^' that a monopoly is, per tie, an ovil, coinitlers that that evil is more tliaii cora- pen.sated for, by the inducement h'dd out to men of Icaniin}^ and f,'»'niii.s to produce work.s which may be u.seful for the eiioourugement of learn- in^', and the promotion of literature and science. In Smilei v. liel/orU et rotecti(m which tha Sovereign affords the subject. The oath ril3 the liunilred and his Ihonour ; iinil ii(»t to kiKtw or lioar of any ill or «lainn<,'i' intcmU'd him without lU'lcntliiip liiin tlu'ri-frmu." . But, besiilus this expruss eii},'a},'()nieiit, thu liiw nlso ludda that thiTC is ail iiii|ilieil oiiiiiinal aiitl virtual all»'j,'iaiic«' owiiij,' from every suhji'ct to his Si»vt'M'i<,'ii, aiitiMtMliiitly to any »'X|iiv.ss prniiiisf. The sanction of an oath, it is true, in ease of violation of duty, makes the ^uilt still more nccumiilated, hy su])era(l(lin^' iterjiiry to treason ; hut it does n(»t increase the of the I'liitish Kmpire. The doctrine, however, of the periK-'tual character of natural alle- giance mii.st, nnder the existinj^ law, Ik; taken with some qualification, for, hy the Naturalization Acts of 1870 and 1S72 (33 & 34 Vict., r. 14, ami 3") & 3t» Vict., c. 39) it has been now jiiovided that any Uriiish subject who when in any foreign state, and not under any tlisahiliiy, shall have voluntarily liecome naturali/cd in such stale, shall ihencel'urlh bo deemed to have ceased to be a IJritish subject, and be regarded as an alien ; though provision is at the same time made to enable such a person, on the same condition as other alit-ns, to obtain from the Secretary of State a certificate of re-admission to Jliitish iiatiiiiialily which will re-admit him to the status of a British subject. The Acts also provitle that "any person who, by reason of having Uoii born within the dominions of Her Majesty is a natural-born subject, Init who also at the time of his birth became, under the kw N k^ti IMAGE EVALUATION TEST TARGET (MT-3) Y M Mj. f/ I A A % 1.0 If"- IIM I.I 11.25 1^ 1^ IS li£ IIIIM 1.8 1-4 IIIIII.6 V] c^:m. cpK .^^ 7: / .^ /A %' o / r ., ms =% 1 o^ 186 B. N. A. ACT, 1867 — SECT. 91, § 25, FEDERAL LEGISLATIVE POWER of any foreign state, a subject of such state," or who is born out of Her Majesty's dominions of a father being a British subject — may make a declaration of alienage, and shall thenceforth " cease to be a British subject." The natural-born subject of one prince to whom he owes allegiance may be entangled by subjecting himself absolutely to another ; but it is his own act that brings him into these straits and difliculties, of owing service to two masters. In certain cases he may forfeit his rights as a British subject by adhering to a foreign power, but he remains always liable to his duties : and if, in the course of such employment, he violates the laws of his native country, he will be exposed to punishment when he comes within reach of her tribunals. All persons found within the territories and possessions of the Crown fall within the operation of the laws of England, though in different degrees : British subjects (that is, persons born within any part of the dominions of the Crown, and in some cases their descendants also, though born in foreign parts, and persons naturalized by Act of Parlia- ment), being in a full and absolute sense entitled to the rights confer- red by these laws, and liable to the obligation they impose, but aliens in a limited sense only. Mr. Sergeant Stephen (2 Comm. p. 404) lays it down as established law in England, that if an alien seeking the protection of the Crown, and having a fixmily and effects there, should, during a war with his native country, go thither, and there adhere to the King's enemies for purposes of hostility, he may be dealt with as a traitor. It is provided in England by the Imperial Naturalization Act of 1870, with regard to all titles accruing after that date, that real and personal property of every description may be taken, acquired, held and disposed of by an alien in the same manner in all respects as by a natui-al- born British subject ; and that a title thereto may be derived through, from, or in succession to an alien as if he had been such a subject. But the Act confers no right on an alien to hold property out of the United Kingdom ; nor to hold any municipal, parliamentary or other office or franchise, or to be the owner of a British ship. (1 Com. 134.) In Low V. RoHtledge (11 Jurist N. S., part 1, p.939) it wa8 held by the Court of Appeal ill Chancery, confirming 10 Jur. N. S. 922 (Parke, B., delivering the Judgiutnt of the Court) : That every alien coming into a British colony becomes temporarily a subject of the Crown, bound by, subject to, and entitled to the benefit of the laws which affect all British subjects — that by the laws of Great B. N. A. ACT, 1867 — SECT. 91, § 25, FEDERAL LEGISLATIVE POWER. 187 Act of Ual and ^eld and latui-al- Ihrough, Jet. \t of the pr otber 134.) ke Court lering t^® iporarily le benefit 1 of Great Britain a copyright is personal property, and that an alien friend may, by the common law, have, acquire or get within the realm, by gift, trade or other lawful means, any treasure or goods personal whatsoever as an Englishman, and may maintain any action for the same — that his rights and duties as a subject of the Crown thus acquired and attached cannot be impaired or put aside by colonial legislation. In Corse v. Corse (4 L. C. E., 310) it was held : That by Act 12 Vict. c. 197, passed by the 3rd Provincial Parlia- ment of Canada, which enacts that " every alien shall have the same capacity to take, recover and transmit real estate in all parts of the Pro- vince as natural-born subjects," the disabilities of aliens are removed, and every alien has the same capacity to take, recover and transmit real estate in all parts of the Province as natural-born subjects of Her Majesty. (Tlie above Act continued in force by sec. 120 of B. N. A. Act.) The following Acts were passed by the Parliament of Canada respecting aliens since 1st July, 1867 : An Act respecting aliens and naturalization, (31 Vict. c. 66, assented to 22nd May, 1868), providing that Provincial Naturalization shall be extended to the Dominion. An Act (34 Vict. c. 22) to amend the preceding Act by giving to all aliens who, before the 1st July, 1867, resided in any of the Pro- vinces which now foriu Canada, and now residing in Canada, the pri- vileges of natural!-.ation on taking the oath of allegiance. An Act (36 Vict. c. 36) to extend the preceding Acts to the Pro- vinces of British Columbia, and Manitoba. The Statute 7 & 8 Vict. c. 66 was passed by the Imperial Parlia- ment to enable alien friends to partake of the rights and capacities of British subjects. The statute 10 & 11 Vict. c. 83 was passed by the Imperial Parliament, legalizing within the limits of Her Majesty's Colonies, Acts, Statutes or Ordinances " heretofore made and enacted," and " which shall hereafter be made and enacted by the Legislatures of any of Her Majesty's Colonies," for imparting to any person or persons the privi- leges or any of the privileges of Naturalization. But by the Imperial Naturalization Act of 1870 (33 Vict. c. 14), 7 & 8 Vict. c. 66 and 10 & 11 Vict. c. 83 are wholly repealed. Art. 16 of the Imperial Naturalization Act of 1870 provides, how- ever, that : 188 ]5. N. A. ACT, 18G7 — SECT. 91, § 2G, FEDERAL LEGISLATIVE POWER. IG, All Laws, Statutes and Ordinances which may be duly made by the Legislature of any Ih'itish possession for im])arting to any jjevson the jjrivileges or any of the i)rivileges of naturalization, to be enjoyed by such person within the limits of such j)ossession, shall within such limits have the authority of law, but shall be subject to be confirmed or disallowed by Her Majesty in the same manner, and subject to the same rules in and subject to which Her ^lajesty has power to contirm or disallow any other laws, statutes or ordinances in that possession. See also Rules and Regulations for Her MajcHty's Colonial Service, 11 Heitz- Ict's Com. Treaties, p. 310. 26. Marriage and Divorce. Mr. Serjeant Stephen (Comni., p. 238) says : In England, under the union of the Church and State, when marriage ranked as a sacrament of the Church it naturally, when the Roman Catholic faith was the established religion, fell under the cognizance of Ecclesiastical Courts. But, by Acts of I'arliament, these Courts were stripped of their juris- diction in this respect and in the year 18G0, by Statute 20 & 21 Vict, c. 85, a new Court was erected, under the title of the Court of Divorce and Matrimonial Causes; the jurisdiction over sucli matrimonial matters as usually fell under the cognizance of the Ecclesiastical Courts, was bestowed upon this Court. A still more extended jurisdiction was given to it by 21 & 22 Vict, c. 93, which enacted that parties might apply to this Court for a declaration of their legitimacy or of the validity of the marriages of their fathers and mothers, or of their grandfathers and grandmothers; or for a declaration of their own right to be deemed natural born citizens. Reynolds v. The United States (98 U. S., S. C, 145), Held : That a Statute declaring bigamy committed in the Territories a crime against the United States, and prescribing its punishment, was in all respects constitutional and valid. By an Act (28 and 29 Vict. c. G4) passed " to remove doubts re- specting the validity of certain marriages contracted in Her Majesty's possessions abroad," it was enacted that " every law made or to be made by the Legislature of any such possession as aforesaid for the purj^ose of establishing the validity of any marriage or marriages contracted in such possession shall have and be deemed to have had from the date of the making of such law the same force and effect for the purpose afore- B. N. A. ACT, 1867 — SECT. 91, § 27, FEDERAL LEGISLATIVE POWER. 189 said within all parts of Her Majesty's Dominions, as such law may have had, or may hereafter have, within the Possession for which the same was made." Astill et lir v. IhUee (4 Q. L. R 20), 1877, Court of Review, Quebec (Mereditli, C. J., Casault, J., Caron, J.), Held : That a community of property does not exist between persons who, having been domiciled and married without contract in a place where the law of community did not exist, afterwards established their domicile and aoxiuired real property in a country where the law of community (?/(t exist. See Sect. 92, ss. 12. 27. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters. By this section, the exclusive legislative authority of the Parliament of Canada is extended to all matters relating to " the Criuiinul Law," and " the procedure in Criminal Matters." It will becou)e necessary in many cases for the Courts to determine what constitutes a crime, and to distinguish criminal matters from civil matters. Blackstone says (1 Comm. 268), All offences are either against the king's peace, or his crown and dignity ; and are so laid in every indictment. For though in their conse(ptences they generally seem (except in the case of treason, and a very few others) to be rather offences against the kingdom than the king, yet, as the public, which is an invisible body, has delegated all its power and rights, with regard to the execution of the laws, to one visible magistrate : all affronts to that power, and breaches of those rights, are immediately offences against him, to whom they are so delegated by the public. In Rrgina v. Roddi/ (41 U. C, Q. B. 29G), Held : That a conviction for selling intoxicating liquors in violation of 37 Vic. c. 32, Out., obtained on defendant's evidence, quashed for the reason that, being a charge of a criminal character, the defendant could not be compelled to give evidence against himself. Harrison, C. J., in delivering the judgment of the Court, said : Tt cannot be held that, while the Provincial Legislatures have the incidental power of enacting certain laws of a criminal character when necessary for the enforcement of laws properly passed by them, on matters .mdcr their exclusive jurisdiction, that they have the power, 190 B. N. A. ACT, 1867 — SECT. 91, § 27, FEDERAL LEGISLATIVE TOWER. If; directly or indirectly, of destroying the general rules of evidence appertaining to Criminal Procedure or quasi Criminal procedure throughout the Dominion. The proper definition of the word crime is, an offence for which the law awards punishment : Per Bayley, J., in Mann v. Owen (9 B. & C. 595-599). A crime or misdemeanor is an act omitted or committed in violation of a public law either forbidding or commanding it. This general definition comprehends both crimes and misdemeanors, which, properly speaking, are mere synonymous terms, though in common usage the word crime is made to denote such offences as are of a deener or more atrocious dye, while smaller faults and omissions of less conse- quence are comprised under the general names of misdemeanors only. Butt V. Conant (1 B. & B. 548-575.) In Attorney General v. Bowman (2 B. & P. 532, note), an infor- mation against the defendant for keeping false weights was held by Eyre, C. B., not to disclose a crime. In Huntley v. Luscomhe (2 B. & P. 530) it was made a question whether a commitment in execution for a penalty before a magistrate for an offence against the excise laws is a commitment for " criminal matter " within the provisions of the Habeas Corpus Act. In iJe.r v. Myers (1 T. R. 265) it was held that a person who had been convicted in a penalty under the Lottery Act, 22 Geo. II. ch. 47 and arrested on a Sunday and sent to the house of correction for want of a sufficient distress, was not a criminal ; so that his arrest on Sunday was unlawful. In Easton's Case (12 A. & E. 645) it was held that a person sen- tenced by two justices to imprisonment with hard labor, under the Smuggling Act, 4 & 5 Wm. IV., ch. 13, sec. 2, was in execution for criminal matter under the Habeas Corpus Act, Lord Denman saying : " the party is sentenced to imprisonment at hard labor, which puts the point beyond doubt." In Attorney General v. Radloff (10 Exch. 84) the Court, consist- ing of four Judges, was equally divided on the question whether the trial of an information filed by the Attorney General for the recovery of penalties for smuggling under sections 46 and 82 of 8 »& 9 Vic. ch. 87, was a civil or criminal proceeding. In Parker v. Green (2 B. & S. 299), a proceeding before justices preferred under 9 Geo. IV., ch. 61, against a person licensed to sell exciseable liquors by retail. Crompton, J., in delivering judgment said (p. 311), " When a pro- In ThJ liquor sold th tion of la pTo- B, N, A. ACT, 1867 — S^IICT. 91, § 27, FEDERAL LEGISLATIVE POWER. 191 ceeding is treated by a. statute as imposing a penalty for an offence against the public, the amount of which penalty is to be meted by the justices according to the magnitude of the offence, there can be no doubt tliat the proceeding is a criminal one." And Wightman, J., said (p. 309), " the justices may punish such offender by fine, — thus treating fine as a punishment for an offence against good order and rule." The latter d" ~'«iion was followed in Regina v. Sullivan (L. R. 8 Ir. C. L. 404), where the charge was " for keeping a dog without a license contrary to the Dogs Regulation (Ireland) Act, 1865. Palles, C.B., said, p. 407, " the penalty is imposed by way of punishment and not as compensation to any particular individual." Clemens qui tarn v. Bemer (7 Can. L. J., N.S., 126), Hughes, Co. J., held: That under the B. N. A. Act of 1867, the Dominion Parliament had the exclusive right to legislate upon the subject of the returns of convictions and fines for criminal offences. If it were competent for the Dominion Parliament to legislate con- cerning the summary trial of criminal offences, and lay down the procedure therefor, I apprehend it was also competent for them to deal with the returns of the convictions and its results, to prescribe their legitimate conclusions, and to affix or impose any penalty for non- observance of what was laid down. With that power, as a necessary consequence, must follow the jurisdiction to alter, amend or repeal any existing law affecting the same subject, for the purpose of assimilating the criminal laws of the whole Dominion. I cannot therefore under- stand that the Dominion Legislature has jurisdiction over a given subject up to a certain point, and that the Provincial Legislature has the right to step in and begin legislation where the Dominion Parlia- ment has left off. The jurisdiction to legislate and deal with any given subject must be entirely under the control of the one or the other, and not under the piecemeal authority of both. If it were otherwise, the statute law of the country would assume such a fragmentary character that in a few years we should find it difficult to wend our way through its perplexities. In Retina v. Lake (43 U. C, Q. B., 515) by a unanimous Court, held : That the Local Legislature, by providing by law that a sale of hquor in certain municipalities, of quantities prohibited by law to be sold therein by the Temperance Act of 1864, should be a contraven- tion of 37 Vic. ch. 32, sees. 24 and 25, as a selling by retail without 192 B. N. A. ACT, 18G7— SECT. 91, § 27, FEDEllAL LEGISLATIVE I'OWKB. a license, exceeded tlieir powers. They were, by so doinp;, directly legislating n})on criminal law, and enacting criminal procedure for the punishment of offences against the Temperance Act of 18G4. Ill Rcgina v. Lawrence (43 U. C, Q. B., ICl) : A conviction for selling intoxicating li(^uor in violation of the License Act, oi Vic. c. 32, Out., obtained on defendant's evidence, quashed, for the reason that the defendant could not be compelled to give evidence against himself, under section 4 of 36 Vic, ch. 10, (). Gwynne, J., held that section 57 of that Act was ultra vires of the Local Legislature and an encroachment upon the jurisdiction of the Dominion Parliament, the Provincial Legislature having no direct power to legislate either as to crime or criminal jnocedure, under the Pritish North America Act 1867, sec. 91, sub-sec. 27. That section 57, professing to punish a person for inducing or attempt- ing to induce, by bribery or threats, a witness not to give evidence, or to give false evidence, upon a prosecution for an offence against the Liquor liicense Act, cannot be regarded as a clause within the meaning of tlie ] 5th sub-section of the 92nd sec. of the P. N. A. Act for enforc- ing the Act for regulating the sale of liquors. One of the subjects exclusively assigned to the Provincial Legisla- tures is the r'ght to make laws as to " shop, saloon, tavern, auctioneer and other licenses, in order to the raising of a revenue for provincial, local or municipal purjioses." Where the purpose of the Provincial Statute is not to raise a revenue for any such purpose, but to suppress some public vice, even by the sacrifice of revenue, the Act is not one which can be validly passed under the words which we have quoted, and, uidess held to be the exercise of mere police or municipal })ower, is void. Where the effect of such a Statute is to interfere with the trade and commerce of the Dominion it is a direct encroachment upon the powers which exclusively belong to the Dominion or General Parlia- ment of the Country (sec. 91, sub-sec. 2). Oil iippoal (43 U.C, Q.B., 174) : It was held by a unanimous Court (Harrison, C.J., Hagarty, Wilson, Armour, Cameron, J.J., atlirming the judgment of Gwynne, J.) : That the acts declared to be offences under sec. 57 of the Liquor License Act of Ontario were before the passing of that Act criminal offences at the common law, and so not within the power of a Provincial Legisla- ture either as coming under " Municipal Institutions " or under the Tlie Hn e.'inii Jjuw, or fr finiel,! fill UjKJd '■•'wliil; ;i ^''t. Tri;,l 2i* I!. X. A. .VCT, 18G7 — SECT. 01, ij 27, FEDERAL LEGISLATIVE POWEK. 193 proteiico of luMiifT passed to enforce a law as to "shop, salooT), tavern, auctittnccr, or other licenses, in order to the raising of a revenue for provincial, local, or niunicii)al purposes." Harrison, C. J., delivering the judgment of the Court, said : That, dealing with an offence clearly indictahle at common law, subornation of jjerjury, it was iiltra vires of the Local Legislature ; unless the clause, although dealing with what would be a misderueanor at common law, is brought within the jurisdiction of the Local Legis- lature, by sub-section 15 of section 92 of the Ihitish North America Act ; that is to say, imless clause 57 of cli. 1 81 of the Revised Statutes can be beid to be a clause relating to "the imposition of punishment by line, jienalty, or im}irisonment /o?' enforcing" the law respecting the sale of spirituous lii^nors, and the raising of revenue for provincial, local, or municipal purjjoses, by the granting of licenses authorizing {ind regulating such sale But the provision in the 57th section is made in relation to an offence wholly collateral to the juosecutiou for a violation of the LiqiK)r iacense Act. It is a claase which in fact professes to provide a Court and jiroce- dure, wherein and whereby, in a particular case a person guilty of an offence indic'able at common law, may be tried and convicted contrary to the course of the connuon law or of the criminal statute law in like cases. The whole domain of crime and criminal procedure is the exclu- sive pro]Hnty of the Dominion Parliament, and to allow the Legislature of a Province to declare that an act which, Ijy the general Liw, is a crime, triable and ])unishable as a crime with the ordinary safeguards of the Constitution afl'ecting procedure as to crime, shall be something other tiian or less than a crime, and so trial)le and punishable by magis- trates as if not a crime, would be destructive of the checks provided by the general law for the constitutional liberty of the subject. Proclamations. Tlie King has no prerogative but that which the law of the land allows him. Hncimiiot by his proclamation change any part of the Common Law, Statute Law, or Customs of the realm ; nor can he create any offence by his proliibilion or proclamation, for that would be to alter the law. Bu* 'Proclamations which call upon the subject to perform duties already enjoined , law arc perfoetiy liiwful; and subseciuent disobedience is an aggravation of the offence. 2 llow. ^t. Trials, 723. Coke, Pith part, p. 73. 29. Such Classes of Subjects as are expressly excepted in 194 B. N. A. ACT, 1867 — SECT. 91, § 27, FEDEUAL LEGISLATIVE POWER. the Enumeration of the Chisses of Subjects by twis Act as- Bigned exclusively to the Legislatures of the Provinces. And any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Pro- vinces. (See Sect. 92, § 10, for Classes of Subjects excepted.) A reference luis been already made under sec. 91, ss. 2, to the case of the City of Fredericton and The Queen & Barker (3 Can. S. C, p. 505), as deciding that iu the power to re. N. A. Act, and suViject, of course, to the sovereign authority of the British Parliament it.self, with reference to the ([uestion under consideration, I can find in the B. N. A. Act no limitation, either in terms or by necessary impli- cation, of the general power so conferred, and without which the legis- lative power should not, in my opinion, be limited by judicial inter] »re- tation. In the United States, where frequent discussions have arisen under the written constitutions, Federal and State, by which the legis- lative [towers are limited and restricted, Mr. Cooley, in his work on statutory limitations thus states the doctrine as there understood (1) : But it is not always essential that a legislative act should be a completed statute, which must in any event take effect as law at the time it leaves the bands of the legislative department. A statute may be conditional, and its tak- ing effect may be made to depend upon some subsequent event. It has likewise been urged that this Act affects only particular dis- tricts, that it is not general legislation, and therefore is ultra vires. I (WEB. D. N. \. ACT, 18G7 — SKCT. Dl, SlJ 27, FKDKHAL I.KCISI.VTIVK I'dWI'.U. ]'.»7 las the licjiiora llu' Act lull thu Lo make I by liny has the t (We 1118 — either from the disputed :h<»iity is ul of the therefore il, as was V. Burah of some atiou into liameut of arliament Icir discre- .ject only Act, and 'luliameiit an tiud in lu-y imph- the legis- iuteritre- lave arisen the legis- s work on ,ood (1) : completed leaves the md its tak- licular dis- vires. I (ini ciitirely iiiiahle to appreciate this objection. If tlie subject matter dealt with conies within the class(!S r)f subjects asHiip for S'ih\ or (lir(cfli/. or iudirec/ii/. on ovy pretence or upon any device sell or barter, or in mnsiili nifi'Di of the purchase of ani/ other property, give to any other person any ^piiituous or other intoxicating liijuor, or any mixed liquor capahle of being usud as a beverage, and part of which is spirituous or otherwise intoxicating. Sid)-secti(>n 2 provides that — Neither licenses to distillers or brewers, — nor for retailing on board any stcandjoat or vessel, — nor yet any other description of license whatever, — shall in any wise avail to render legal any act done in violation of this section. Sul)-section 3 provides for the sale of wine for exclusively sacra- mental j'urposes, and sub-section 4 for the sale of intoxicating liquor for exclusively medicinal, or for bond fide use in some trade or manu- facture. Sub-section 5 contains a proviso — That any producer rf cider in the county, or any licensed di.stillcr or brewer, haviiiu; his distillery or brewery within such county or city, may thereat expose and keep for sale such liquor as he .shall have manufactured thereat, and no other ; and may sell th.c same thereat, hut only in quantities not less than ten gallons, or in the case of ale or beer not less than eight gallons at any one time, aad only to druggists and others licensed as aforesaid (chat is to sell for sacra- mental, medicinal and trade purposes), or to such persons as he has good reason 198 «. N. A. ACT, 1867 — SECT. 91, § 27, federal legislative power. to believe will forthwith carry the same beyond the limits of the county or city, nnd of any adjoining county or city in which the second part of this Act is then in force, and to be wholly removed and taken away in quantities not less than ten gallons, or in the case of ale or beer not less than eight gallons at a time. Sub-section 6 contains a proviso of a similar character in favor of — Any incorporated company authorized by law to carry on the business of cultivating and growing vines and of making and selling wine and other liquors produced from grapes, having tlieir manufactory within such county or city. With a further proviso by sub-section 7 — That manufacturers of pure native wines made from grapes grown and pro- duced by tlicm in the Dominion of Canada, may, when authorized to do so by license from the municipal council or other authority having jurisdiction where such uiaiiufacturc is carried on, sell such wines at the place of manufacture in quantities of not less than ten gidlons at one time, except when sold for sacra- mental or medicinal purposes, when any number of gallons from one to ten may bij sold. And by sub-section 8 it is provided also — That any merchant or trader excla-ively in wholesale trade, and duly licensed to sell liquor by wholesale, having his store or place lor sale of goods within such county or city, may thereat keep for sale and sell intoxicating liquor, but only in quantities not less than ten gallons at any onetime, and only to drugi2;ist8 and others licensed as aforesaid, or to such persons as he has good reason to be- lieve will forthwith carry the same beyond the limits of the county or city, and of any ndjoining county or city in which the second part of this Act is then in force, to be wholly removed and taken away in quantities not less tha' ten gal- lons at a time. It is contended that this is strictly a Temperance Act, passed solely for the promotion of temperance, and not an Act dealing with any of the matters within the power of the Dominion Parliament — that the power to deal with the sale of spirituous liquors and the granting of licenses therefor, and laws for the prevention of drunkenness, and of the hke character of preventive means, are within the exclusive power of the Local Legislatures, and tlie recital of the Acts is relied on as indicating conclusively its character. If the Dominion Parlian^snt legislates strictly within the powers conferred in relation to matters over which the British North America Act gives it exclusive legislative control, we have no right to enquire what motive induced Parliament to exercise its powers. The statute declares it shall be lawful for the Queen, by and with the advice and consent of the Senate and House of Commons, to make laws for the POWER. or city, t is then ess than time. iTor of — isincss of jr liquors • city. and pro- do so by iion where facture in for siicra- to ten may ily licensed )ods within liquor, but ito drugii;is*^ jason to be- lity, and of is then in tr ten gal- ^sed solely ^th any of -that the [rranting of 3SS, and of kive power kied on as Ihe powers America Ito enquire The statute Idvice and Iws for the B. N. A. ACT, 1867 — SECT. 91, § 27, FEDERAL LEGISLATIVE POWER. 199 peace, order and good government of Canada, in relation to all matters not coming within the class of subjects by this Act assigned exclusively to Legislatures of the Provinces, and, notwithstanding anything in the Act, the exclusive legislative authority of the Parliament of Canada extends to all matters coming within the classes of subjects enumerated, of which the regulation of trade and commerce is one ; and any matters coming within any of the classes of subjects enumerated shall not be deemed to come within the classes of matters of a local or private nature comprised in the enumeration of the classes of subjects by the Act assigned exclusively to the Legislatures of the Provinces. If, then. Parliament, in its wisdom, deems it expedient for the peace, order rnd good Government of Canada so to regulate trade and commerce as to restrict or prohibit the importation into, or exportation out of, the Dominion, or the trade and traffic in, or dealing with, any articles in respect to which external or internal trade or commerce is carried on, it matters not, so far as we are judicially concerned, nor had we, in my opinion, the right to enquire whether such legislation is prompted by a desire to establish uniformity of legislation with respect to the traffic dealt with, or whether it be to increase or diminish the volume of such traffic, or to encourage native industry, or local manufactures, or with a view to the diminution of crime or the promotion of temperance, or any other object which may, by regulating trade and commerce, or by any other enactments within the scope of the legislative powers con- fided to Parliament, tend to the peace, order and good Government of Canada. The effect of a regulation of trade may be to aid the temper- ance cause, or it may tend to the prevention of crime, but surely this cannot make the legislation ultra vires, if the enactment is, in truth and fact, a regulation of trade and commerce, foreign or domestic. The power to make the law is all we can judge of; and tlie recital in the Act so much relied on ought not, in my opinion, to affect in any way the enacting clauses of the Act, which are in themselves abund- antly plain and explicit, requiring no elucidation from and admitting of no control by the recital, which can only be invoked in explanation of the enacting clauses if they be doubtful. Why it was deemed necessary to insert the self-evident abstract proposition that " it is very desirable to promote temperance in the Dominion," and to enact that this Act may be cited as " The Canada Temperance Act, 1878," does not seem very apparent when the title of the Act itself was "an Act respecting the traffic in intoxicating liquors," and it contained a recital, that it was desirable there should be uniform legislation in all the Pro- vinces respecting such traffic, which shows the legislation on its face t 200 D. N. A. ACT, 1867 — SECT. 91, § 27, FEDERAL LEGISLATIVE POWER. immediately within the power of Parliament. It may be, that all who voted for this Act may have thought it would promote tem])erance, and were influenced in their vote by that consideration ahjue, and desired that idea should prominently api)ear. Still, if the enacting clauses of the Act itself deal with the traffic in such a manner as to bring the legislation within the powers of the Dominion Parliament, no such declaration in the preamble or permissive title can so control the enacting clauses as to make the Act 7iltra vires ; thoiigh it cannot be doubted that the introduction of this temperance element on the face of the Act may have very much stimulated the idea, which has been so much relied on, that the legislation was not a regulation of trade and commerce, but was for the suppression of intemperance, a matter assumed to be within the exclusive power of the Local Legislatures, and so beyond the powers of the Dominion Parliament. If we eliminate from the recital in the Act the abstract proposition and the permissive clause to cite the Act as "The Canada Temperance Act, 1878," there does not appear to be a word in the title, i)reamble or enacting clauses from which the slightest inference could be drawn that Parliament was dealing with a subject-matter, other than simply as a regulation of trade and commerce hi respect to the traffic in those particular articles of intoxicating liquors. It has also been contended that no legislative [lowers to prohil.iit exist in the Dominion. I must respectfully, but most emi)hatically dissent from this proposition. I cannot for one moment doubt, that by the B. N. A. Act plenary power of legislation was vested in the Dominion Parliament and Local Legislatures respectively to deal with all matters relating to the purely internal affairs of the Dominion, unless, indeed, anything could be found in the Act in express terms limiting such power, each, of course, acting within the scope of their respective powers ; and, therefore, where one has not the power so to legislate, it necessarily belongs to the other. If this be so, then the question is, is this legislation within the powers conferred on the Dominion Parliament, or does it encroach on the powers exclusively confided to the Local Legislature ? For, with its expediency, its justice or injustice, its policy or impolicy, we have nothing whatever to do. Much has been said as to the analogy of the Dominion I'arlianient and Local Legislatures with the Congress of the Federal Government and the State Legislatures of the United States. But the constitution of the United States and the constitution of the States as regards the powers which each may exercise, are so different from the relative powers of the Dominion Parliament and Provincial Legislatures, that m '■ B. N. A. ACT, 1867 — SECT. 91, § 29, FEDERAL LEGISLATIVE POWER. 201 the cases to be found in the American books, with regard to the powers of tlic State Legishitures in proliibitiug the sale of intoxicating liquors, afford no guide whatever in the determination of the powers of the Local Legislatures and the Dominion of Canada. The Government of the United States is one of enumerated , lowers, and the Governments of the States possess all the general powers of legislation. Here we have the exact opposite. The powers of the Provincial Governments are enumerated and the Dominion Clovernmeut possesses the general powers of legislation. Therefore we are told by ]\Ir. Cooley that : When a law of" Congress is assailed as void, we look in the National Con- stitution to sec if tlio grant of .specified powers is broad enough to o.iibraco it, but when a State law is attacked on tlie same ground, it is presumably valid in any ciisc, and tiiis presumption is a conclusive one, unless in the Constitution of the United States, or of the State, we arc able to discover that it is prohibited. We look in the Constitution of tb.e United States for grants of legislative power, but in the Constitution of the State to ascertain if any limitations have been imposed upon the complete power witli which the Legislative department of tlie St\te was vested in its creation. Congress can pass no laws but such as the Constitution authorizes, either expressly or by clear implication, while the State Legislature has jurisdiction of all subjects in wliich its legislation is not prohibited. Cooley, Cons. Lim., ITS. With us the Government of the I'rovinces is one of enumerated powers, which are specified in the 13. N. A. Act, and in this respect differo from the Constitution of the Dominion Parliament, which, as has oeen stated, is authorized " to make laws for the peace, order and good government of Canada in relatioii to all matters not coming within the classes of subjects by the Act assigned exclusively to the Legislatures of the Provinces ; " — and that " any matter coming within any of the classes of subjects enumerated shall not be deemed to come within the class of matters of a local or private nature comprised in the enumeration of the classes of subjects assigned exclusively to the Legislatures of the Provinces." Therefore " the regulation t)f trade and connuerce," being one of the classes of subjects enumerated in sec. 91, is not to be deemed to come within any of the classes of a local or private nature assigned to the Legislatures of the Provinces. To my mind, it seems very clear that the general jurisdiction or sovereignty which is thus conferred emphatically negatives the idea that there is not within the Dominion legislature, power or authority to deal with the question of prohibition in respect to the sale or traffic in intoxicating li(juors, or any other articles of trade or commerce. It is said that a power to regulate does not include a power to pro- 202 B. N. A. ACT, 1867 — SECT. 91, § 29, FEDERAL LEGISLATIVE POWER. II hibit. Apart from the general legislative power which, T think, belongs to tlie Dominion Parliament, I do not entertain the sliglitest doubt that the power to prohibit is within tlie power to regulate. It would be strange indeed, that, having the sole legislative power over trade and commerce, the Dominion Parliament could not prohibit the imi)ortation or exportation of any article of trade or commerce, or, having that power, could not prohibit the sale and traffic, if they deemed such prohibition conducive to the peace, order and good government uf Canada. There seems to be no doubt on this ])oint in the United States. Mr. Story on the Constitution of the United States, with reference to the regulation of foreign commerce, which lielongs to the National Govern- ment (as the regulation of both foreign and internal trade and commerce does to the Dominion Government) says : The coinmcrciiil system of tlie United States has also been cm[)liiyeil for the purpose of revenue; sometimes for tlie purpose of proliibitioii ; .sometimes for the purpose of retaliation and coiniiicrcial reciprocity ; soiiietinn;.s to lay embar- goes; sometimes to cncourafre domestic navi;:atioii and the sluppiiij; and mor- cantile interests, by bounties, by discriniinatiiig duties, and by special pivl'crences and privilejies; and sometimes to regulate intercourse with a view to mere poli- tical objects, such as to repel aggressions, increase the pressure of war, or vindi- cate the rights of neutral sovereic-ity. Story, Com., Con. U. S., s. 1 070. So in the case of the United States v. Halliday, 3 Wall. 407, as to the rights of Congress under its power to regulate commerce with the Indian tribes, the Supreme Court of the United States held that that power extended to the regulation of commerce with the Indian tribes and with the individual members of such tribes, though the traffic and the Indian with whom it was carried on were wholly within the territorial limit of the State. The Act made it penal to sell spirituous liquors to an Indian under charge of an Indian agent, although it was sold outside of an Indian reserve and within the limits of a Stale. The Court held the Act constitutional and based upon the pon'er of Con- gress to regulate commerce with the Indians. The contention in this case, as put by the learned Judge who de- livered the judgment of the Court, was, " that so far as the Act was intended to operate as a police regulation to enforce good morals within the limits of a State of the Union, that belongs exclusively to the State, and there is no warrant in the Constitution for its exercise by Congress. If it is an attempt to regulate commerce, then the commerce here regu- lated is a commerce wholly within the State — among its own inhabitants or citizens, and not within the powers conferred on Congress by the ;r. N. A, ACT, 1867 — SECT. 91, § 29, FEDERAL LEGISLATIVE POWER. 203 )ngs that dbe and iition oNver, Ijition k Mv. to the ovevvi- iiinerce \ for the 'nnes for ly on>b;ir- :in<\ »>»=>■' releronces >ierc p"^i- ^ or vuxli- 070. L. 407, as evce with hehl tliat ke Indian (the traffic ^•itliin the kpivituous igh it was ttale. iiie ■r of Con- U who de- L Act was Irals within , the State, r Congvess. here regu- linhabitants Iress by tbe commercial clause." But the Court thus deals with this contention — Mr. Justice Miller says : The Act in question, iiltliouuh it iiKiy partalvC of soino of the qualities of those Acts passed by State Legislatures, which have been referred to the police powers of the Ftnte, is, we think, still more clearly entitled to be called a roiiuhi- tioi) of t.'oininercc. " Commerce," says Cliief Justice ]Mai>hall, in the opinion in Gibbons vs. Oirdcn to which we so often turn with profit when this clause of the Constitution is under consideration, " Commerce undoubtedly is traffic, but it is somethinir more, it is intercourse." The law before us professes to rei!;ulate traffic and intercourse with the Indian tribes. It manifestly does both. It relates to buyinj^ and selling and exchanging commodities, which is the essence of all commeice, and it regulates the intercourse between the citizens of the United States and those tribes, which is another branch of commerce and a very important one. If the Act under consideration is a regulation of commerce, as it undoubtedly is, does it regulate that kind of commerce which is placed within the control of Congress by the Constitution ? The words of that instrument are : *' Con- gress shall have power to regulate commerce witli foreign nations, and among the several States, and with the Indian tribes." Commerce with foreign nations, without doubt, means commerce between citizens of the United States and citi- zens or subjects of foreign Governments, us individuals. And so commerce with the Indian tribes means commerce with the individuals composing those trilies. The Act before us describes this precise kind of traffic or commerce, and there- fore conies within the terms of the con>;tituti(mal provision. Is there anything in the fact that this power is to be exercised within the limits of a State, which renders the Act regulating it unconstitutional? In the same opinion to which we have just before referred. Judge Marshall, in speaking of the power to regulate commerce with foreign States, says : " The power does not stop at the jurisdictional limits of the several States. It would be a very useless power if it could not piss those lines. If Congress has power to regulate it, that power must be exercised wherever the subject exists." It follows from these propositions, which seem to be incontrovertible, that if commerce or traffic, or intercourse, is carried on with an Indian tribe, or with a member of such tribe, it is subject to be regulated by Congress, although within the limits of a State. The locality of the traffic c iti have nothing to do witij tbe power. The right to exercise it in reference to any Indian tribe, or any person who is a member of such tribe, is absolute, without reference to the locality of the traffic, or locality of the tribe, or of the member of the tribe with whom it is carried on. It is not, however, intended by these remarks to imply that this clause of the Constitution authorizes Congress to regulate any other commerce, originated and ended within the limits of a single State, than commerce with the Indian tribes. 204 B. N. A. ACT, 18G7 — SKCT. 91, §29, I'EDEUAL LEGISLATIVE POWER. Ti has been likewise very strongly urged that tlie Dominion Parlia- ment cannot have the right to proliibit the sale of intoxicating liipiors as a beverage, because to do so would interfere with the right of the Local Legislatures to grant licenses and to deal with property and civil rights and matters of a purely local character, and, so with the right of the Local Legislatures to raise a revenue by means of shop and tavern licenses. I fail to appreciate the force of this objection. If substantial, it would prohibit to a great extent the Dominion I'arliament from legis- lating in respect to that large branch of trade and commerce carried r n in intoxicating beverages, and so take away the full right to re;^(iiii,e alike foreign and internal commerce. If they cannot })rohibit the inter- nal tratUc because it prevents the Local Legislatures from raising a revenue by licensing shops and taverns, the same result would be pro- duced if the Dominion Parliament prohibited its importation or manu- facture. For by the same process of reason it must follow that they could not prohibit its inijjortation r.' manufacture, or in any way regu- late the traffic, whereby the sale Oi traffic should l^e injuriously afiect- ed and so the value of licenses be de[treciated or destroyed. In my opinion, if the Dominion I'arliament, in the exercise of and within its legitimate and undoubted right to regulate trade and commerce, adojit such regulations as in their practical operation conflict or interfere with the beneficial operation of Local Legislation, then the law of the Local Legislature must yield to the Dominion law, because matters coming witliin the subjects enumerated as confided to Parliament are not to be deemed to come within the mattei of a local nature comprised in the enumeration of subjects assigned to the Local Legislatures ; in other words, the right to regulate trade and commerce is not to be overridden by any Local Legislation in reference to any subject over which power is given to the Local Legislature. A case, precisely analogous in principle to this, is to be found in the Eejiorts of the United States Supreme Court, License Tax Oases, 5 Wall. -1:G2, where the State Legislature had the control of the internal commerce, and the Federal Government the right to raise a revenue by licenses, while, here the Dominion Government have the control of the internal trade and com- merce, and the Local Legislatures the right of raising a revenue by granting licenses. It was not doubted that where Congress possessed constitutional power to regulate trade and commerce, it might regidate it by means of licenses, and in case of such a regulation a license would give authority to the licensee to do whatever its terms authorized, but that very different considerations applied to the internal commerce or domestic trade of the States, over which Congress had no power to regu- n. N. A. ACT, 18G7 — SECT. 91, § 29, federal legislative rowER. 205 ivrlia- Huors )f the I civil \A\t of tavern iiutial, I li'!^i«- viod < n (."•aiii.e le iutor- aising a be l>vo- • manu- lat they ay VI 'gu- [y al'l'ect- In my yitliin its i-ce, adopt vfere Nvith the Local fs coming not to be sod in the in other )ven'idden ich po^ver vh)gous in ted States the State lie Tedeval here the and com- [evenue by possessed ^i i-egvdate ■nse AvouW (orized, but immerce or ■er to regu- late, nor any direct control, btit the power belonged exclusively to the States. There tlie power to authorize a bu.siness within the State was lield plainly repugnant to the exclusive power of the State over tlie same subject. So here^ over trade and commerce the Local Legislature liave no power of regulation nor any direct control, and tlierefore the jKAver of the Local Legislature to authorize a business is e([ually re])Ug- nant to the powder of the Dominion Parliament over the same subject; and therefore, while Congress had the ])ower to tax, it was held to reach only existing snbjects, and could not authorize a trade or business within a State, in order to tax it ; that if the licenses were to be regard- ed as giving authority to carry on the branches of business which they license, it would be difficult, if not im])ossib]e, to reconcile the granting of them with the constitution. But it was held that it was not neces- sary to regard the laws as giving such authority, that, so far as they related to trade within State limits, they gave none and could give none. If this same principle is ajiplied here, the right of the Local Legis- latures to tax by means of licenses gave the licensees no authority to exercise trade or carry on business prohibited by the Dominion Parlia- ment which has the control of trade and commerce. I think it et[ually clear that the Local Legislatures have not the ])ower to prohibit ; the i>ominion Parliament having not only the general powers of legisla- tion, but also the sole power of regulating as well internal as external trade and commerce, and of imposing duties of customs and excise; and having by law autbjrized the importation and manufacture of alcoholic li([uors, and exacted such duties thereon, and so far legalized the trade and traffic therein, to allow the Local Legislatures — under pretence of police regulation, on general grounds of public policy and utility — by proliibitory laws to annihilate such trade and trattic, and practically deprive the Dominion Parliament of a branch of trade and commerce from which so large a part of the public revenue was at the time of confederation raised in all the Provinces — and has since been in the Dominion — never could have been contemplated by the framers of the B. X. A. Act. It is, in my opinion, in direct conflict with the powers of Parliament, as well over trade and commerce, as with their right to raise a revenue by duties of import and excise. When I had the honor to be Chief Justice of New Brunswick, the question of the right of the Local Legislatures to pass laws prohibiting the sale or traffic in intoxicating liquors came squarely before the Su- preme Court of that Province, and that Court, in the case of Regina v. 200 B. N. A. ACT, 18C7 — SECT. 92, TROVINCIAL LEGISLATIVE POWER. Justices of King's County, 2 Pugs. 535, unanimously held that under the B. N. A. Act, the Local Legislature had no power or authority to i)ro- hibit the sale of intoxicating liquors, and declared the Act passed with that intent ultra vires, ond therefore unconstitutional. I have care- fully reconsidered the judgment then pronounced, and I have not had the least doubt raised in my mind as to the soundness of the conclusion at which the Court arrived on that occasion. I then thought the Local Legislature had not the i)ower to prohibit. I think the same now. I then thought the power belonged to the Dominion Parliament, I think so still, and therefore am constrained to allovv this appeal. Exclusive Poivers of Provincial Legidatures. Subjects of ex- 02. In GacU Provliice the Legislature may exclusively aiaiiogisutioii. iiijii^e Law.s 111 relation to Matters coming within the Classes of Subjects next herein-after enumerated ; that is to say, — 1. The Amendment from time to time, notwithstanding anything in this Act, of the Constitution of the Province, except as regards tlie Office of Lieutenant Governor. 2. Direct Taxation within the Province in order to the raising of a Revenue for Provincial purposes. 3. The Borrowing of Money on the sole credit of the Pro- vince. 4. The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers. 5. The Management and Sale of the Public Lands belong- ing to the Province, and of the Timber and Wood thereon. <■). The Establishment, Maintenance, and Management of Public and Keformatory Prisons in and for the Province. 7. The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Listitutious in and for the Province, other than Marine Hospitals. 8. Municipal Institutions in the Province. 9. Shop, Saloon, Tavern, Auctioneer, and other Licenses in order to the raising of a Revenue for Provincial, Local, or Municipal purposes. klong- B. N. A. ACT, 18G7 — BECT. 92, § 1-2, rUOVINCIAL LEGISLATIVE POWER. 207 10. Local Works and Undertakings other than such as are of the following Classes: — a. Lines of Steam or other Ships, Railways, Canals, Tel- egraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, jr ex- tending heyond the limits of the Province : h. Lines of Steam Ships between the Province and any British or Foreign Country : f. Such Works as, although wholly situate within the Province, are before or aftor tlieir Execution declared by the Parliament of Canada to be for the general Advantage of Canada, or for the Advantage of Two or more of the Pro- vinces. 11. The Incorporation of Companies with Provincial Ob- jects. 12. The Solemnization of Marriage in the Province. 13. Property and Civil Rights in the Province 14. The Administration of Justice in the Province, inclu- ding the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal jurisdiction, and including Procedure in Civil Matters in those Courts. 15. The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section. 16. Generally all Matters of a merely Local or Private Nature in the Province. § 1. The Amendment, &c., of the Constitution, &c. The Legislatures of the Provinces of Manitoba and British Columbia now consist of only one House, the Upper House having been abolished in each Province under the powers conferred by this section. § 2. Direct taxation within the Province in order to, &c. Angers, jiro Regina and The Queen Insurance Co., Held, by Superior Court, Montreal, Torrance, J., aflirmed by Queen's Bench, Montreal, and confiruicd by the Jud. Com. of the Privy Council (21 L. C. J. 77 ; 22 L. C. J. 307 ; 16 C. L. J. 198; 3 L. R. App. Cases 1090) : II ■ J ■ 208 It. N. A. ACT, 18G7 — SECT. 92, § 2, puovincial legislativ?: power. That 39 Vic. c. 7, Quebec, entitled " An Act to com])el assurers to take out a License," ol)li<,'inj,' every assurer in the Province, otlusr than a marine assurer exclusively, to take out a license every year, thejtrice of such license to consist in the. ])aynient of three i)er cent, as to assurance ajjiainst fire, and of one per cent, as to other assurances, for each lunidrcd dollars or fraction thereof on all ])reiniunis or rcncfwals of ])re- niiunis received, was ?'/'/vt ('/?v>', as hein«^ an indirect mode of taxation and an attem]>t to regulate trade. In the Q. J>., — Sir A. A. Dorion, C. J., said ; I concur in the judg- ment on the following grounds : The Local Legislature has the right to impose direct taxes and to grant licenses as a means of raising revenue for Provincial and muni- cijjal pin'poses. Now the charge imposed is clearly an indirect tax. Tt is not im- posed on the Insunince Co. itself, but ujton the business which it is doing — that is, the insurer is obliged to])lace a stamp on every policy issued, according to the amount of such policy. It is as much an indirect tax as the taxes of excise or of customs. They are not intended to be paid by the insurer, but to be paid by the insured, whoever they may be. 1'liis case must be brought under the provisions allowing the Local Legislatures to grant licenses. I am not prepared to state that the Local Legislatures have not the right to grant licenses to insurance comi»aiiies, to bauks, &c. ; but if the Legislatures have that right they must do it in such form as not to violate one of the restrictions of the Confederation Act, which does not authorize them to impose indirect taxes. The Local Legislatures are authorized to grant licenses and to raise revenue on such licenses as were usually granted. Now, there was not, at the time the Confederation Act wag passed, a single license granted on which the payment or fee was laid on the amount of business done. All licenses granted were for a fixed sum. This view was carried so far that in the Act to regulate the busi- ness of auctioneers, each auctioneer had to pay a fixed sum, which represented the price of the license, and another sum of 1 per cent, on the price of the goods sold, this last sum to be added to the price of the goods sold. The duty imposed by the Local Legislature is not therefore a license fee, such as was known in this country at the time of the Confederation Act. I therefore find that although in form a license appears to have been granted, in substance, it is an indirect tax which has been imposed. B. N. A. ACT, 1807 — SF.CT. 92, § 2, I'UOVINflAI, LKGISLATIVK I'OWKU. 209 It is an evasion of Mie Act from wliiclj tlio Local Lcfiisliiture derives its flowers. The Looal r.c^Mslaturo niiiinit, no more tlmn i)riviite iiidividuiils, act ns it wen- in fro ml of tlo- lov, that is, do l>y iiiartie3. In Kn^dand, Piulianient is omtiipotent. Its j)owL'r is absolute and suprtnic, and Ilalhun (Const. Hist., vol. I>, i>. IIKI) has not hesitated to .say that " the absolute power of the Le},'islature, in strictm-ss, is as arbitrary in Knj,dand as in Persia." In this country it is very iliffercnt. Since Confederation, both the Federal Tarliauieut and the Looal Le},Mslatures have limited powers. It is true that the Federal I'arliaiuent has a quasi soverei<,'nty. Its jurisdiction is far <,'rcater than that of the L((Cal Lt';,nslaturcs, but there are subject matters over which it has no jurisdiction. They arc those niatter.s, which, by the British North America Act, are left, without any concurrent jurisdiction in the Federal I'arliament, to the jurisdiction of the Local Legislatures. The latter have only such powers as are si)ecially assigned to them, and which are by exception taken from the Federal and given to the Local Legislatures. Let ns examine, therefore, whether, under the distribution of the legislative jiowers made by tlie Im[)erial Statute, the Legislature of Quel)ec could pass this Statute, imposing a tax on assurance companies and compelling them to take out a license ? The 91.st .section of the Imperial Act enacts that " It .shall be law- ful for the Queen, by and with the advice and consent of the Senate and lIoii.se of Commons, to make laws for the peace, order and good government of Canada, in relation to all matters W)t coming within the classes of subjects, l)y this Act, exclusively assigned to the Legislatures of the Provinces ; and for greater certainty, but not so as to restrict the generality of the foregoing terms of this section, it is hereby declared that (notwithstanding anything in this Act), the exclusive Legislative authority of the Parliament of Canada extends to all matters coming within the classes of subjects next hereinafter enumerated, that is to say " (inter alia) : § 2. The regulation of trade and commerce. § 3. The raising of money by any system of taxation, " and any matter coming within any of the classes of subjects enumerated in this section shall not be deemed to come within the class of matters of a local or private nature com- prised in the enumeration of the classes of subjects by this Act assigned H. N. A. ACT, LSlu — SKCT. 92, JlJ 2, IMtdVINt'IAI. LK(1ISI,ATIVK I'OWKl!. 211 exL'linivi'ly to thu Loj^isliitiirns of tlio I'roviiicos." This refttrs to the Fcilcral I'arliiiincnt. In tlt'aliii;,' with tlio jiovvurs (jf tho Lt';,'islatun'.s()f the I'ntviiiccs, the '.I2ii(l si'ctioii (Kuilarus that " In each I'loviiicu the Lcj,'ishituri' may exi;lu.sivt'ly maki; hiw.s in relation to matters coming within the classes of snhjects next hereinifter uuumeiutod, that is to say {'tiitvr alia) : § 2. hirect taxation within the I'rovince in ordiT to the rai-^ing of a revcniu' lor Trov-ciai purposes. 55 0. simp and saloon, tavern, auctioneer and other licenses in order to the laisin^' of a revenue for provincial, local or municipal purposes." The other parts of these sections have no Ix^aring upon the present case. The determination of this question depends entirely on the con- struction to be put on sub-sections 2 and 9 of the above 92nd section of the Imperial Statute. The Federal Tarliament has the general } tower to make laws in rela- tion to all matters, excepting only such matters as are by the 92nd sec. specially put under the control of the Local Legislatures. The Local Li'gislatures, on the contrary, have power to make laws only in relation to matters specifically and nominally ])ut under their control by section 92. In order to ascertain whether any given subject matter is under the jurisdiction of one of the legislative bodies, created by the Imperial Statute, it is sufficient to refer to the 92nd section and see if by that section the subject matter is or is not put uiuler the control of the Trovincial power. If not it comes within the legislative authority of the Federal Parliament, even if not one of the classes of subjects specially enunu'rated as being specially reserved for that Parliament by the 91st section of the Act. This proposiiion was not contested by the learned counsel whose duty it has been to contend in favor of the constitutionality of this Act, ])ut it is on the 92nd section that he relies to prove that the Legis- lature of Quebec had the legislative authority to pass this Statute, lie contended that it might be possible to consider the taxes imposed by 39 \kt. c. 7, as a direct tax. Then, under the 2nd sub-section of sec- tion 92, which gives the power of direct taxation to the Legislatures of the Provinces, this Act is unimpeachable. But should it be declared that the duties imposed were not a direct tax, then, he says, the Act is nevertheless constitutional, because it is authorized by the 9th sub- ' ii! 212 B. N. A. ACT, 1867 — SECT. 92, § 2, PllOVINCIAL LEGISLATIVE POWER. section, which gives t(» Local Legi^ilatures the control of "Shop, saloon, auctioneer, tavern, and other licenses." As to whether tlie duties imposed on these Companies constitute a uirect or an indirect tax. I ct)nsider tliey constitute an indirect tax. It is a stamp duty, which has been imposed by the Legislature on policies of assurance and renewal receijtts rospecting such i)olicies and nothing else. That it ought to be considered a stamp duty or a license does not make any difference as it is in both cases an indirect tax. " On pent ranger sous deux chefs ])rincipaux (says J. B. Say, an author of great rei)ute on Political Economy) les difterentes manieres qu'on emploie pour atteindre les revenus des contribuables. On bieu on leur demande directement une portion du revenu qu'on leur suppose, c'est I'objet des contributionfi diredes ; ou bien on leur fait ])ayer une somme quelconque sur certaines consommations qu'ils font aveo leur revenu ; c'est I'objet de ce qu'on nomme en France les confrlhntions indirect es." After stating what are direct taxes, the same author says : " Pour asseoir les contriljutions indirectes et celles dont on veut frapper les consommations, on ne s'informe pas du nom du redevable, on ne s'atta- che qu'au produit. Tantot, des I'origine de ce produit, on reclame une part quelconque de sa valeur, comme on foit en France pour le sel. Tantot cette demande est faite au moment ou le produit franchit les frontieres (les droits de douanes). Tantot c'est au moment ou le pro- duit jmsse de la main du deriiier producteur dans celle du consomma- teur qu'on fait contribuer celui-ci (en Angleterre par le stamp duty, en France par I'impot sur les billets de spectacles). Tantot le gouverne- ment exige que la marchandise porte une marque particuliere, ou'il fait payer, comme le controle de I'argent, les timbres des journaux. Tantot 11 frappe non la marchandise elle-meme mais I'actiuittement de son prix, comme '^ le fiiit i)ar le timbre des quittances et des effets de com- merce. Toutes ces manieres de lever les contributions se rangent dans la classe des contributions indirectes parce que la demande n'en est addressee i\ personne directement, mais au produit ou h la marchandise frapp(5e de I'impot." [Say, Economic Politique, pp. 521, 523.] AU our text writers and jurists agree in giving the definition of indirect taxes in the same language as that I have just cited. I will only add two others — Favard de Langlade et Merlin. The former says : " On appelle contributions indirectes les contributions t^tablies par la loi sur les choses dont I'usage est ordinaire dans les habitudes de la vie. EUes sont indirectes en ce qu'elles ne portent nominativement ■[ i B. N, A. ACT, 1867 — SECT. 92, i§ 2, PROVINCIAL LEGISLATIVE POWER. 213 lo pvo- isonnna- ntij, en )uverne- u'il fait Tantot de son cle coin- nt dans n'en est handise t^'tablies tudes de livenient sur aucnn contribuable, qu'elles ne sont acquittees que par le consom- mateur, quel qu'il soit, ou celui qui veut user et qu'il suffit de ne pa3 coTisnmmer ou user pour n'y etre pas assujetti. Ainsi, par exemple, celui qui ne se sert pas de papier timbre et n'use pas de tabac est sftr de ne payer aucune partie des droits (^tablis pour le timbre et sur les tabacs. II en est de meme pour toutes les branches des contributions indirectes." [Favard de Langlade, Repert. V. Contributions Indirectes.] And Merlin, Piepert. V. Contributions Indirectes, says : " On dis- tingue deux sortes de contributions, les contributions directes et le;:; contriljutious indirectes. Les contributions directes sont etablies direc- tement sur les })er3onnes. Les contributions indirectes sont, suivant la definition qu'en ilonne la loi en forme d'instruction du 8 Janvier, 1790, tons les impots assis sur la fabrication, la vente, le transport et rintro- duct' n de plusieurs objets de commerce et de consommation, impots dont le produit, ordinairement avance par le fiibricant, le marchand, ou le voituricr, est supporto et indirectement paye par le consommateur. C'est aussi a cette classe qu'appartiennent les droits sur les tabacs, sur les cartes a jouer, sur le sel, sur hs boissons," &c., &c. See also De- ineunier, Economie Politique, vol. 3, V. Impots. There cannot be a shadow of a doubt that the duties imposed on the Assurance Companies by the Legislature of Quebec, let them be called licenses or stamp duties, come distinctly within the definition given by the French authors, and should be classed in the category of indirect taxes. If we now examine the English authors, it is impossible to declare that these duties on the Assurance Companies fall into the category of direct taxes. " Taxes are either direct or indirect," says Mill. " A direct tax is one which is demanded from the very person who it is intended or desired should pay it. Indirect taxes are those which are demanded from one person in the expectation and intention that he shall indem- nify himself at the expense of another, such as the excise or customs. . . . Most taxes on expenditures are indirect, but some are direct, being imposed not on the producer or seller of an article, but imme- diately on the consumer." (2 Mill, Pol. Econ. p. 415.) See also same volume, pp. 432, 458, 4G5, 466. " A direct tax operates and takes effect independently of consump- tion or expenditure ; while indirect taxes affect expenses or consumption, and the revenue arising from them is dependent thereon." 3 Smith's Wealth of Nations, pp. 3, 11 (10th Ed.). Taxes on operation, and those 214 B. N. A. ACT, 1867 — SECT. 92, § 2, PROVINCIAL LEGISLATIVE POWER. on commodities, are put in the same category. See Macilonnell — A Survey of Political Economy, p. 34G. See also 2 Smith's Wealtli of Nations, hy llogers, pp. 413, 466, and McCulloch's Principles and Prac- tical Influence of Taxation and the Funding System, pp. 1 and 242. In the United States the distinction between direct and indirect taxes is made upon the same principles, as those, upon which the French and Englisli authors above cited make it. Milliard — Law of Taxation, par. 60 — says, a license on particular pursuits is an indirect tax. In the case of Loughborough v. Blake (5 Wheat. 317), Chief Justice Marshall, cpeaking of the celebrated duties which were the immediate cause of the American rebellion, says, " Neither the Stamp Act nor the duty on tea were direct taxes." In the Veazie Bank v. Fenno (8 Wall. 533), " A direct tax w^as held to be solely a tax upon land or its appurtenances, or iipon polls." In Pacific Ins. Co. v. Soule (7 Wall. 433), an income tax on the premiums assessment, and dividends of an Insurance Company were held not to be a direct tax, but a duty of excise. The duties imposed by the Legislature of Quebec on the Assurance Companies seem very much to be an indirect tax on the premiums. Moreover, cannot these duties be said to be excise ? What is excise ? " Excise is the name given to the duties or taxes laid on certain articles produced and consumed at home ; but exclusive of the duties on licenses, auctioneers and post horses, &c., &c., are in- cluded in the excise duties." (Wharton Law. Lex. V. Excise.) McCulloch's Diet, of Com., V. Excise, gives its definition in very much the same terms — "As a part of excise, the rates of duties on licenses are included, as upon auctioneers, brewers," &c., &c. (McCulloch on the Principles and Practical Influence of Taxation and the Funding System, p. 242.) And at page 321, "The licensing of lotteries is also a mode of raising a revenue by indirect taxation." In fact, all authors agree in placing excise duties in the category of indirect taxes. Another author in the L^nited States says : " Taxes are usually divided into direct and indirect. The former include assessments made upon the real and personal estate of the tax-payer, upon his income, or upon his head. The latter comjirise duties upon imports and exi)orts, excises, licenses, stamp duties, and the like." (Ilipley's Anier. Cyclopedia, V. Taxes.) It would seem that even in the British North America Act, the legislator did not consider that licenses were a direct tax. Had it been the intention to consider licenses as a direct tax, it r M )WER. B. N. A. ACT, 1867 — SECT, 92, § 2, rROVINCIAL LEGISLATIVE POV ,..1. 215 11-A Itll of Trac- >42. idirect french would not have been necessary, after having given to the Local Legis- lature, by sub-sec 2, the power to impose direct taxes, to have rc])eated in the 9th sub-sec. that the right to impose licenses on certain subjects was also within the legislative authority of the Provincial Legisla- tures. Does not the Act in so many words declare that the Local Legis- lature will have power to impose direct taxation, but as to indirect taxation, its power is limited to " shop, saloon, tavern, auctioneer, and other licenses." In the case of Reginav. Tuylor (36 U. C. Q. B. 217), .ill the Judges composing the Court of Queen's Bench, as well as those of the Court of Error and Ap])eal, to wit : C. J. Draper and Eichards, and Justices Morrison and Wilson, Strong, Burton, and I'atterson, were of o])inion that a license to be paid for by a brewer, or by a person to sell by wholesale, was an indirect tax. In the present case the character of the tax seems still more clearly established to be an indirect tax. For all these reasons, the tax imposed on the Insurance Companies is not a direct tax, and, therefore, under sub-section 2 of the 92nd section of the British Xorth America Act, the Local Legislature had no power to impose it. On this point there is no difference of opinion amongst us. ]\loreover, it was not on the 2nd sub-section that the Legislature relied in order to pass this Statute in reference to Insurance Companies, or that they supposed that they were for the first time, thereby im- posing, a direct tax in the Province of Quebec. The 9th paragraph of the 92nd section is alone relied on, as giving the Legislature author- ity to pass this Statute. This is the sub-section which gives to the Local Legislatures control over " shop, saloon, tavern, auctioneer, and other licenses, in order to the raising of a revenue for provincial, local, or municijial puri)oses." And it is principally in the words "and other licenses " that the power to impose this tax on Insurance Companies is said to exist. Let us see if by the words " and other licenses " the legislative pro- vincial authority is thereby so very much enlarged. It is clear, on the simple reading of the Quebec Act, that the for- mality of taking out the license was thought of, in order, that the intended legislation would come within the authority of this 9th sub-sect, of the 92nd section of the Imperial Statute. Nevertheless it is a "stamp duty " that has, in reality, been created. For, although there is a penalty of SoO imposed in case of policies, or renewal receipts, issued without the required stamps affixed, yet we do not find any penalty imposed if an Insurance Company does not take out the license. i 5' In I '■'.%l ■■a 216 B, N. A. ACT, 1867 — SECT. 92, § 2, PROVINCIAL LEGISLATIVE POWER. If the Company defendant in tlie case, The Queen's Insurance Co., had afiixed stamps on its insurance policies, it would not have been subjected l.»y the Statute to any penalty for having refused or neglected to take out a license from the revenue officer. The Act, it is true, enacts that eachcompaii shall take out a license, but this license is not for the purpose " of the raising of a revenue for provincial, local, or municipal purposes." The dollar which is charged, as the cost of, or price of the license, is a fee which is paid personally to the revenue officer. Now, by tlie express terms of the Imperial Statute, it can only be for "the raising of a revenue, for provincial, local, or municipal purposes," that a license may be imposed. If, as in the present case, the license does not raise any money for any of these purposes, the Legislature of the Province has no power to impose it, and the Statute imposing it must be declared iiltra vires. An Insurance Company need not take out any license, and thereby will not be subject to any penalty under this Statute — provided the policies and renewal receipts have stamps afiixed, the object of the legislation has been attained. How can it be said that in such a case the license has produced a revenue when it is not even in existence ? Now, by the express terms of the Imperial Statute a license can be imposed only in order to raise a revenue, while, on tlie face of the Statute under consideration, the license wliich the companies are to take out cannot and could not produce a revenue. Tlie result is that this legislation is not authorized by the Imperial Statute. Let us consider this case in its most fiivorable light for the Pro- vincial Legislature — by admitting that the duties imposed are really license duties payable in stamps, on the transactions of the Insurance Companies. Let us see whether the Legislature of Quebec had authority to pass such a law. First, can insurance companies be comprised in the words " and other licenses " which follow the words " shop, saloon, tavern, auctioneer," in sub-section 9 of section 92 of the Imperial Act. That is the question. A well-known rule of construction of Statutes will solve this question. It is the rule which declares that " general words will be restrained to things of the same kind with those particularized." Undei' this rule it cannot be contended that Insurance Coni[)anies are comprised in the three words "and other licenses " of the Imperial Statute, for it cannot be said that they are ejusdem generis as " shop, saloon, tavern, auctioneer," which precede the words " and other licenses." This rule has been adopted in the United States as well as WEB. J Co., been Lected cense, aie for larged, onally ipevial 1, local, ney for ower to Ires. tliereby ided the t of the 1 a case istence ? I license face of ies are to It is that the Tro- ire really Itisurance to pass |hc words tavern, It. That lutes will [•al words lilarized." vnics are llmperial Is " shop, lul other well as B. N. A. ACT, 1867— SECT. 92, § 2, PROVINCIAL LEGISLATIVE POWER. 217 in England, and it ha8 been held that a Statute which speaks of auc- tioneers, &c., and all other trades, avocations, or professions, whatever, does not include lawyers : Sedgwick Cons, of Stat, and Cons. Law. This rule is based on common sense, which naturally leads one's mind to think first of the most important subjects comprised in a subject matter with which it may be occupied. Is it reasonable to think that the legislator would have enumerated specially " shop, tavern," &c., and would have left Insurance Companies as being comprised in the words " and other hcenses." If it had been intended to give to the Provincial Legislature no authority to license insurance companies, would they not have been specially mentioned ? There is no doubt they would have been named the first of all. And what would naturally have struck the mind of the Legislature at the time, in order that they might not be unintentionally omitted, is that Insurance Companies by law were then obliged to take out licenses : 23 Vict. ch. 33, 1860 ; 26 Vict. ch. -43, 1863. (See also 38 Vict. ch. 20, and 40 Vict. ch. 42.) They are much more important than " shop, tavern, &c.," which have been particularly mentioned, and the Legislature cannot have intended, by adding the words " and other licenses," to have included in these words the power to tax institutions or industrial concerns which are so much superior to those mentioned immediately preceding these words. This was the view taken in the case of The Archbishop of Canter- bury (2 Coke's Rep. 46). "A Statute treating of persons or things of an inferior rank cannot by general words be extended to those of a superior." This rule is applicable to every section of an Act, unless the contrary appears from the context of the whole Act. Now, by referring to the Imperial Statute I find, in reading the whole Act, that, far from being unable to make the application of this rule to this section, it is evident, more especially so by referring to the 91st section, which regulates the legislative powers of the Federal Parliament (a clause to which I will more particularly refer hereafter) that the words "and other licenses " mean and are intended to include " and other licenses " of the same kind, ejusdem generis. In the case of Sandiman v. Breach (7 B. & C. 96) it was held, " where general words follow parti- cular words, the rule is to construe the former as applicable to the things or j)ersons particularly mentioned." See also Dwarris, 656, and Maxwell on Statutes, 297. Another consideration which strikes my mind, is, that if Insurance Com- A •ii f, X : 218 B. N. A. ACT, 1867 — SECT. 92, § 2, PROVINCIAL LEGISLATIVE POWER. panics are comprised in the words " and other licenses," then the banks, railroad companies, and express companies, are also comprised in these words, and if all these large companies conld be comi)elled to take out licenses, then the Provincial Legislature would have i)ower to imi)ose stamp duties on promissory notes, bank shares, cheques, and on every ticket issued by a railroad company, and on bills of lading signed by express companies. The Legislature would also have the power to compel notaries to take out licenses, and to imjjose a stamp duty on each and every deed they would pass. In fact, the power to tax indirectly would be unlimited. With the words "and other licenses," a stamp duty could bo imposed on all things that might be made sub- ject to the taking out of a license. The revenues of the Local Governments could therel)y be largely increased,' and direct taxation would, no doubt, be avoided for a long time. Can the Constitution have intended this ? I do not think so, and in support of my opinion 1 will take the liberty of referring to the history of our Constitution, and of citing two or three extracts from the discussion which took place in our Parliament at the time of the debates on Confederation. It is well known that, although the British North America Act is an Lnperial Statute, it was on the Quebec resolu- tions previously adoi)ted that the Act was founded, and that the important debates on this project took place in Canada. It is true that numerons alterations were made in England to the resolutions passed by the Canadia;i Legislature ; but when I compare the resolutions with the Imperial Statutes, I find that the clauses having reference to the distribution of legislative powers between the Parliament of the Dominion and the Local Legislatures, were not materially altered. So that what was said in the Canadian Parliament on these clauses may be considered as ajjplicable to the sections of the Imperial Act now under consideration. At page 94 of the Debates on Confederation, one of the speakers, after having spoken in reference to the sulisidy to be given by the Federal Government to the Local Governments, adds : " If this, from any cause, does not sufhce, the Local Governments must supply all deficiencies from direct tax on their own localities." And at pp. 384, 385 another speaker seems also to be clearly of opinion that the sources of revenue for the Province of Quebec were to be under Confederation those which existed at that time, and previously, and that the only mode of increasing the revenues would be by direct taxation. At pp. (37, iWER. B. K. A. ACT, 18^7 — SKCT. 92, § 2, PHOVINCIAL LEGIi5LATIVE POWER. 219 these :e out inpose every led by wer to uty on to tax ;enses," de svib- largely r a long so, and la to the from the e of the le British ec resolu- that- the true that ns passed ions with Lce to the It of the pered. So .uses may Act now speakers, ren by the I this, from supply all pp. 384, Ihe sources lifederatiou I only mode Lt pp. ^'' 68, 69, a tliird speaker, uses very clear and unanibif,Mions language on this point. Tlie fact that this person was at tlietinie Minister of Finance for Canada adds very much weight to his remarks, when the question under consirloration was to provide for thn financial position of the Pro- vinces under the proposed scheme. I will give the following extracts : " T now pro]iose, sir, to refer to the means which will he at the dis- ]iosal of the several Local Governments to enable them to administer the various matters of public policy which it is proposed to entrust to them." " It will be observed that in the plan ]>ropo3ed there are certain sources of local revenue reserved to the Local Governments, arising from territorial domain, lands, mines, &c., &c. In the case of Canada^ a large sum will l)e received from these resources; but it may be that some of them, such as the Municipal Loan Fund, will become exhausted in the course of time. We may, however, ]>lace just confidence in the development of our resources, and re])ose in the belief that we shall find in our territorial domain, our valuable mines, and our fertile lands, additional sources of revenue far beyond the requirements of public service. If, nevertheless, the local revenues become inadequate, it will he ni'cessary for the Local Governments to have resort to direct taxa- tion." It is evident the speaker was not of opinion that Local Legis- latures woidd be able to dispense witii direct taxation by means of license duties. Further on he says, "Tiie House must now, sir, con- sider the means whereby these local expenditures have to be met. I have already explained that in the case of Canada, and also in that of the Lower Provinces, certain sources of revenue are set aside as being of a purely local character, and available to meet the local expenditure, but I have been obliged in my explanations with regard to Canada to advert to the fact that it is contemplated to give a subsidy of eighty cents per head to each of tlie Provinces. In transferring to the General Government all the large sources of revenue, and in placing in their hands, with a single exception — that of direct taxation — all the means whereby the industry of the people may be made to contribute to the wants of the state, it must be evident to every one that some portion of the resources thus placed at the disposal of the General Government must, in some form or other, be available to supply the hiatus that would otherwise take place between the sources of local revenue and the demands of local expenditure." By stating that " all the large sources of revenue, with the excep- tion of direct taxation, were to be trtinsferred to the General Govern- 220 B. N. A. ACT, 18G7 — SECT. 92, § 2, PROVINCIAL LEGISLATIVE POWKIt. S mcnt," the speaker could not have had the intention of giving to the Local Legislatures the large powers of licensing which the Cjuebec Legis- lature claims to have in the j)resent case. No doubt, the Imperial Statute must, as any other statute, be con- strued by itself, and the opinions I have referred to are not legal author- ities. ]5ut can we not look at them in order to interpret this statute ? And it is to be borne in mind, in referring to the history of our Consti- tution, that these persons whose opinic^ns I have cited formed part of the preliminary conference where the resolutions on Confederation were framed. Can it be said that a commentary of a law by the author of that law should have no weight ? In France, do we not continually see commentators and text writers, in order to construe the text of the Code Napoleon, refer to the speeches made by Cambaceres, Freduard, Bigot de I'reameneu, Comte de Por- tales, and others made during tlie discussion of the subject in the Coun- cil of State, at the Tribune, and in the Legislative Assembly. I, therefore, come to the conclusion that the Local Legislatures, binder the Imperial Statute, have only authority to impose an indirect tax ou shop, saloon, tavern, auctioneer and other licenses ejusdem genevis, and that Insurance Companies, not being ejusdern generis, as shop, &c., cannot be subjected to an indirect tax imposed by Local Legislatures. So far 1 have not taken into account the commercial character of Insurance Companies. I have tried to find in the Imperial Act a powei' given to the Local Legislatures, by way of exception, to impose indirect taxes by license duties on any industry (commercial or non- commercial), occupation, trade, profession, other than on " shop, saloon, tavern, anctioneers," and others of the same kind, ejiisdem generis, but I have not found such a power. It would not be necessary for me to add anything, for, as I have already remarked, I am of opinion, that as the power has not been given to the Local Legislatures, it comes with- in the legislative authority of the Federal I'arliament, although, by section 91, it may not have been particularly and specially given. But I will go one step further, and taking into consideration that the res- pondents' company (and all similar companies) is a commercial com- pany, and that its contracts are entirely of a commercial character ; (C. C. 24, 70), I find that by the Imperial Statute these companies and such companies, in express and clear terms, are subject to the legislative authority and are under the exclusive control, of the Federal Parha- ment. Sub-sec. 2 of the 91st section enacts, that the Federal Parlia- m OWKTl. to the 1 Legis- be coii- author- statute ? Consti- 1 part of ion were luthor of t writers, ! speeches > dc Yor- the Coun- sislatures, n indirect 1 ejusdem generis, as d by Local haracter of ,rial Act a to impose al or non- lop, saloon, eneris, but y for me to ion, that as omes witli- though, by oiven. But at the res- lercial corn- character ; ipanies and legislative jral ParUa- Leral Parlia- 1!. N. A. ACT, 18G7 — SKCT. 92, § 2, PROVINCIAL LEGISLATIVE POWER. 221 ment will have power to make laws relating to" the regulation of trade and comnierco." Tlu; Insurance Conii)anies being oonmiercial compa- nies are therefore under the power of the Federal Parliament. It has not been contended by the Attorney-General of the Province of Quebec tliat the Federal Parliament had not h'gislative authority over these c()in|ianies, but it was a])])arently urged that the Local Legislatures had a concurrent power, or rather, if I am wot mistaken, it was admitted that the Local Legislatures could not regulate these companies, but that they had the power to oblige them to take out a license for the purpose of raising a re\enue, and this was not to regulate them ; and that in the present case it had not been the intention to reguhite. the trade of these companies, but the intentitmof the Legislature of Quebec was to raise a revenue. I am ready to admit that the intention of the Legislature was to raise a revenue, but is not this legislation virtually " a regulation of trade and commerce," and in one of its most extensive and largest branches ? First, a duty is inij)osed on the companies to take out a license, and to be continually doing business under license. What is a license ? It is a ])ermit, — leave granted. What is the origin of the word ? Undoubtedly Licet, licere, to grant leave. Now, in order to grant leave, you must have power to prohibit. He who can grant leave, must first of all have authority to prohibit. Now, I am certain the Legislature of Quebec will not contend they have power to prohibit or prevent Insurance Companies from doing business in the Province. It is true this legislation does not prohibit them, but it has imposed upon them certain conditions. The law says, " Before you can do any business in our Province you must first obtain our leave." Can it be said this is not regulating? The law also says, "If you do not comply with certain formalities, your policies and your receipts will be null and void." Is this not regulating them, in fact, is it not assum- ing the power to prevent them from doing business ? The defendant company has obtained from the Federal Government the license — the leave — to do business in the Province of Quebec. In order to get the license, they have deposited $15,000, and they have paid, and pay jointly with other companies, an annual tax to the Domi- nion of S8,000, and have complied with all the provisions of the Domi- nion Statute, 38 Vict. c. 20. But it is contended that all this does not even give it authority to issue a single policy. The Province of Quebec steps in and says, " If under your license from Ottawa, you issue a single policy, or receipt, we enact they shall be null unless you submit to the conditions we impose upon you." They say, " We might, not- 222 B. N. A. ACT, 18G7 — SKCT. 92, § 2, PUOVINCIAL LEfJISLATlVE POWKR. ti U witlistaiuliiij,' your license from Ottawa, expol you from tlio Province of (Quebec, and jn-event you from carrying on your triidc, hut wo will permit you, but on these contlitidiis." I do not think the Trovince of Quebec has sucli ])Owers, first, because they are not given by the '^'^nd section of tlie Imjerial Statute, and cons(Mjuently belong to the Feci-.a! rarliament; and secondly, because they are given sitecifically, by the Dlst section, under the words "regulation of trade and commerce," to the central power. No doubt, as it has been very properly remarked by the counsel representing the Attorney-General, a literal interpreta- tion (if these two sections would make them contradictory on some jujints. The 01st section declares that the Federal Government shall have ]iower to tax in every possible mode — and this includes direct taxation. The 92nd section declares that the Local Legislature has exclusively the power of direct taxation. A literal interprntation of thriso two soctidiis woul I make them contradictory. It has been stated some- Avhere that in order to reconcile these two sections, the word " exclu- sively " must be construed as referring to the Imperial power. I do not concur in this view, the word was taken from the resolutions on Con- federation sent from Canada, and it was certainly not the intention of referring them to the Imperial power. I prefer to admit that there is a contradiction in the letter of the Statute, and construe the sections as giving the power of direct taxation both to the central and local ].ower, and this is in accordance with the well-known rule " where a general intention is expressed in a Statute and the Act also expresses a particular intention incomi)atible with the general intention, the jiarticular intention shall be considered as an exception:" Per Best C. J. in Clnirchiil v. Crease, 5 Bing. 480-492. It is true that by the 91st section the Federal Parliammt has, exclusively, the power to tax in every mode, but sec. 92 gives specifically to the Local Legislatures the power of direct taxation. Then according to the above rule, direct taxation, must be considered by section 92 as being excepted from the monopoly given in general terms by the 91st section.to the Federal Parliament. The same rule is applicable to the construction of the other paragraphs of these two sections. Thus, although by the 91st section the Federal Parliament has the exclusive power of taxing in every mode, and of regulating trade and commerce — shop, saloon, tavern, auctioneer licenses and other licenses of the same kind come within the jurisdiction of the Local Legislatures, and that, because the power is given specifically by the 92ud section, and vice versa. Although the «. N. A. ACT, 18G7 — SECT. 92, § 2, PROVINCIAL LECJISLATIVE POWER. 223 02n(l section j^'ivcsilie itowfr of direct tiixatioii and of indinn't taxation by moans of tlu; licenses just mentioned, the Federal rarliament lias also the power of direct taxation and indirect taxation, by means of said licenses, l>ecanse the 9 1st suction gives them the power specitically of inii>osinp all kinds of taxes, which is one ui' the essential elements of sovereignty, and at the same time giving an exclusive control over the regidation of trade and commerce. The concurrent l(>gishitive authority over these subject matters, by the Federal Tarliament and the Local Legislatures, can only exist as to direct taxation and the granting of " shop, saloon, tavern, auctioneer and other licenses," ejunJeiu (joii'ris. It is not, however, necessary for me to consider in this cause the different qnestions which may arise from the concurrent powers given to these legislative bodies, as I am of opinion, for the reasons I have before given, that the licenses imposed on the insurance companies cannot be said to be a direct tax, and are not comprised in the words " shop, saloon, tavern, auctioneer, and other licenses." It w.is stated on the argument that municipal taxes are in a some- what similar position to these. Without wishing to express an opinion in one sense or the other, as to the constitutionality of any legislatiini relating to the municipal system, I will say that it is quite possible that such legislation would come within a diffi;rent class of subject matters and within certain other sections of the Imperial Statute, which I have had occasion to refer to. I allude to the 129th section, which declares that the existing laws before Confederation in each rrovince shall continue to remain in force, and gives power to the Dominion Parliament and to the Local Legislatures to repeal, alter or modify them according to their respective jurisdiction, as well as by paragraph 8 of the 92nd section, which puts the municipal system under the control of the Local Legislatuies. 13atit is not necessary for us to express any opinion on this portion of the Imperial Statute. By this suit, the Attorney-General for the Province of Quebec, pro Rcyina, claims from the defendant's company a penalty of one hundred and fifty dollars for issuing three insurance policies without having affixed to them the stamps required by the Statute passed by the Legislature of the Province of Quebec. The Superior Court has decided that this Act passed by the Legislature of Quebec is uncon- stitutional, and has dismissed the plaintiffs action. This judgment ought to be confirmed, and is confirmed. On appeal to the Privy Council, their Lordships held, that a License Act by which a licensee is neither compelled to take out nor to pay for a hcense, but which merely provides : — 1' 1^ 1 .ft- t 3, 224 B. N. A. ACT, 18G7 — SECT. 92, § 2, provincial LEfllSl.ATIVK POWER. That the price of n license shall consist of an adhesive stainjt, to be paid in rcsjHJct of each transaction, without (leclarin;,' \vln'th(!r it shall be i«aid by the licensee or the person who deals witli him — is virtnally ii Stamp Act and not a License Act. That, as a Stamp Act, tlu) imjK»sition by a Provincial I-«gislature of a stamp duty on policies, nniewals, and receipts, with provisions for avoiding' tlie policy, renewal, or receipt in a Court of law if the stamp is not atiixod, is not warranted under sect. 92, ss. 2 of the B. X. A. Act of 1867, which authorizes tiie imposition of direct taxation only. In the Privy Council their Lordships siiid : — It was alleged, on behalf of the appellants, that, thonj^'h at first sight it might appear that this was not a license, and that this was not the jirice paid for a license, yet, that it could be shown by the existing legislation in Enjjlaiid and America that licenses were constantly granted on similar tcrtns, and that therefore in construing the Dominion Act we ought to construe it with reference to this other subsisting legis- lation. Their Lordships think that a very fair argument. But the question is, is it true in ftxct ? When the instances which were pro- duced were examined, it was found that they were of a totally differ- ent character. They might be described as licenses granted to traders on payment of a sum of money ; but the price to be paid by tiie trader was estimated either according to the amount of business done by the trader in the year previous to the granting of the license, or with refer- ence to the value of the house in which the trader carried on business, or with reference to the nature of the goods, as regards quantity especi- ally, sold by the trader in the previous year. They were all cases in Avhich the f)rice actually paid by the trader for the license at the time of granting it was ascertained by these considerations; it was a license paid for by the trader, and the actual price of the license was ascer- tained by the amount of trade he did. But this, is not a payment depending in that sense ou the amount of trade previously done by the trader ; it is a payment on every transaction occuning in the year for which the license is taken out, and is not really u price paid for a license, but, as has been said before, a mere stamp on the policy, renewal, or receipt. That being so, it is not necessary, it appears to their Lordships, for them to consider the scientific definition of direct or indirect taxation. All that it is necessary for them to say is, that, finding these words in an Act of Parliament, and finding that all their known definitions, "whether technical or general, would exclude this kind of taxation from iWER. B. N. A. ACT, 1867 — SECT. 02, § 2, ntOVINCIAL LEOISLATIVK POWER. 225 to be shall ally a are of us for stamp K. Act at first vas not xisting istantly )ininion ig lej^is- But the ire pro- y differ- ) traders ^e trader by the Lh refer- )usines3, especi- cases in the time license IS ascer- )ayment le by the i^ear for tid for a policy, jears to )f direct se words initions, ion froio the cato<,'ory o{ direct taxation, they must consider it was not the inten- tion of the Lej^islature of Kn<,dand to incliidt' it in the term, direct tax- ation, and therefore that the iiniiositinn of the stanjp dnty is not war- ranted by the terms of the'Jnd sub-section 92 of the Dominion Act. That hcin<^ so, it appears to their Lordsliips that tlie appeal fails, and they will, therefori", lnind)ly advise Her Majesty to aftirm the decision of the Court below, anil ilisndss the aiipeal. Ex parte Bj/ntif (2 Push. 125), Held by the S. C. of Now Riunswick : That an agent or manager of a Foreign Telegraph Company or Cor- poration doing business in the Provinre was liable under a Pntvincial Act, to assessment (m the anu»unt of tolls or income received by him. That, while the Local Legislature could not incorporate companies for suth ])urposes, there is nothing in the B. N. A. Act to prevent them bearing their share of the burdens of the County. In Lawlers v. SulUvmi (2 Can. P. C. 117), Held : That under the Acts of the Provincial Legislature relating to the assessing of rates an I taxes in the City of Saint John, iind providing that foreign banking corporations doing business in Saint John are to be assessed " upon the amount of income received," that such corpora- tions are liable to be taxed on the gross income received by them during the fiscal year. Hon, E. Ii'n'iie, Pror. Gcii. om])any. The city set np as a de- fence that tliiM-e was no le,<,Ms]ative authority, for the levy of such a tax. The petitioner demurred to this answer, but the Circuit Court over- ruled the demuirer and denied the writ, whereuiion the petitioner took this appeal. The Court below proceeded on the ])rinciple that the ])Ower of taxation belongs exclusively to the legislative branch of the Govern- ment, and that the judiciary cannot direct a tax to be levi(;d when none is authorized by the Legislature. Justice Fifl'l, who dilivcied tlie Judgiin-'nt of the Court, said : When the Legislature grants to a city the power to create a debt, it intends that the city shall })ay it, and that its ]»ayment shall not be left to its capricii or jilcasure. Wlumever a ])0\ver to contract a debt is conferr(;d, it must be held that a corresponding power of ja-ovidingfor its payment is also conferred. The latter is implied in the grant of the former, and such implication cannot be overcome except by express words of limitation. Jn the present case the indebtedness of the city of Xew Orleans is conc^lusively established by the judgments recovered. Owing tlie debt, the city had the ])ower to levy a tax for its ])ayment, and it was clearly its duty so to do. The paynumt was not a matter resting on its pleasure, but a duty to the creditor, and having neglected that duty, a mandamus should have becm issued to enforce its obser- va!ice. The judgment of the lower court must tlierefore be revfTsed, and the cause remanded, with directions to issue the writ in compliance with the petition. § 8. Municipiil Institutions in the Pi'ovince. In Lonn Association v. Topckti (20 \V..ll. 55), Ik'M : That a Statute which authorizes a town to issue bonds in aid of manufacturing enterprises of individuals, is void, because the taxes necessary to pay the bonds would, if collected, be a transfer of the i>ro- lierty of individuals to aid in the projects of gain and profit of others, ami not for the public use, in the proper sense of that term. §0. Shop, Saloon, Tavern, Auctioneer, and other Licenses &c. In Lfvcsque and The City of Montreal (2 L. N. SOU). L('vcs(|U(' wns Hentenci'd to pay a fine of ^40 for Ciirrying on his truilcof a butcher in violation of certain By-luws of the Lity prohibiting ihc sale of fresh meat (and other .■i \ i I I m 228 B. N. A. ACT, 1867— SECT. 92, § 9, provincial legislative power. articles usually sold on the markets) vritliin 500 yards of a public maikot established by the City, and without a license. The City Council claimed the power to pa«s the by-laws under an Act of the Provincial Le<;isl.iture (37 Vict. c. 51). On the part of Leve.. I 230 B, N. A. ACT, 18G7 — SECT. 92, § 9, PROVINCIAL LEGISLATIVE TOWER. of the place contribute to the revenues, liy the payment of taxes. We cannot see how tliis is any greater interference with trade or commerce tlian the requiring a person to take out a license to sell liquors, or a license to sell goods as an auctioneer. Ill Ward V. State of Mnryland (12 Willi, 418), Held : That a license tax imposed under a State Statute exacting a larger amount from persons not permanent residents of that State before sel- ling or offering for sale within the limits of the city of Baltimore, cer- tain goods, wares and merchandise, was repugnant to the United States Federal Constitution. In Rtgina v. The Justices of King's (2 Puji-!. 535), Eifcliio, C. J., in dflivoiiiiji tlie jiu]j:Tnfiit ol' tlio Court, said : — We by no means wish to be understood that the Local Legislature have not the power of making such regulations for the government of saloons, licensed taverns, &c., and the sale of liquors in public places, as would tend to the preservation of good order and prevention of disorderly conduct, rioting, or breaches of the peace. In such cases, and possibly others of a similar character, the regulations would have nothing to do with trade or commerce, but with good order and local government, mutters of municipal police and not of commerce, and which municipal institutions are peculiarly competent to manage and regulate ; but if, outside of this, and beyond the granting of the licenses before referieil to, in order to raise a revenue for the purposes mentioned, the Legislature undertakes directly or indirectly to prohibit the manufacture or sale, or limit the use of, any article of trade or commerce — whether it be spirituous liquors, flour, or other articles of merchandize — so as actually and absolutely to interfere with the traffic in such articles, and thereby prevent trade and commerce being carried on with respect to them, we are clearly of ojiinion they assun)e to exercise a Icghhitive power which pertains exclusively to the Parlia- ment of Canada. As to the construction of the ivords "and other licenses." lu JJroir,, V. Tliv Vin;t., p. 3G— L. R. (i 1'. C. 1»]!)— 20 L. C. J. 228), tlieir Lordships of the I'rivy Council hoid : That the force of the woi'ds et cetera must be confined to cases ejusdtm generis as those sjiecified. And in this case, on giving their decision in favor of the widow of Joseph Guibord, on the question of the right of Guibord to interment taxes, ide or „o sell , larger )re sel- re, cer- l States :. J., in islature meut of • places, ution of ;U cases, Lild have ind local ,rce, and page and of the urposes )rohibit trade or tides of le traffic a carried sunte to Pa ilia- to cases iwidovv of bterment IJ. N. A. ACT, 1867 — SECT. 92, §9, PKOVIXCIAL LfX.If^LATlVK TOWKR. 231 in the ordinary way in the cemetery of his Parisli, their Tiorrlships declared that they would \w. governed l)y tlie ]irinci]iles enunciated in the case of Long v. l^he BiNhop of Cape Tovm (1 ^loore N. S. 460), and that they were therefore bound to incjuire whether the act of the Bishop in refusing ecclesiastical burial, was in accordance with the law and rules of discipline of the Itonian Catholic Church, which obtain in Canada, and they tlien proceeded to say : " It seems, however, to be admitted on both sides that the law upon the point in dispute is to be found in the Quebec ritual . . and that the cause of refusal finally insisted u])on was that Guibord was im li^cheiir public within the moaning of the 8th rule." The portion ol' tliis rule referred to as nptilicnble reads as follows : 8. Aux pc'cheurs publics qui seraient morts dans Timpcnitence ; tels sont los concubinaires, les filles on femmes prostituees, les sorciers et les farceurs, usuriers, etc. Tiieir Lordsliips then proceeded to iiif|uire fis to tlie force of the term " etc." or it rttcni, and said : What is this category of " pecheurs publics " to include ? Is the cate- gory capable of indefinite extension by means of the use of an et ccefera in the Quebec llitual I Or if the force of an et ccefera is to be allowed to bring a man within the category of ])ersons liable to what, in eccle- siastical law, is a criminal penalty, must it not be confined to otVonces ejiiKiJem generis as those specified ? (luibord's case did not come with- in any of the enumerated classes. Some argument was raised as to the ell'ect of the words, " quand 11 y aura quelqve doute sur ces sortes de choses les Curds nous consul- teronf on nos grands Vlcaires," but their Lordships are of opinion that these words can at most imjdy a duty on the part of the Cure to consult the ordinary as to the application of the law, in doulttful cases, not a ]iower on the part of the ordinary to enlarge the law in giving those directions, or to croate a new category of ofienders. To allow a iliscrotionary addition to, or an eidargement of, the cate- gories sjiecified in the Ivitual, would be fraught with the most startling consequences. For instance, the et ccefera, might be, according to the su)iposed exigency of the particular case, expanded so as to include within its bann, any person being in habits of intimacy or conversing with a member of a literary society containing a prohibitt'd liook ; any person visiting a friend who possessed such a book ; any person sending bis son to a school in the library of which there was such a book ; going 13; >'% II ;l 232 B. N. A. ACT, 1867 — SECT. 92, § 9, provincial legislative power. to a shop where such books were sohl ; and many other instances might be added. Moreover, the Index, which already forbids Grotius, Pascal, Pothier, Thuanus and Sisraondi, might be made to include all the writ- ings of jurists and all legal reports of judgments supposed to be hostile to the Church of Eome ; and the Roman Catholic lawyer might find it difficult to pursue the studies of his profession. Their Lordships are satisfied that such a discretionary enlargement of the categories in the Ritual, would not have been deemed to be with- in the authority, by the law of the Gallican Church as it existed in Canada before the cession ; and, in their opinion, it is not established that there has been such an alteration in the status or law of that Church founded on the consent of its members, as would warrant such an inter- pretation of the Ritual, and that the true and just conclusion of law on this point, is, that the fact of being a member of this Institute, does not bring a man within the category of a public sinner to whom Christian burial can be legally refused. Gouinlork v. Manufacturers and Merchmts Mutual Fire Ins. Co, of Canada (15 U. C, L. J., N. S., 27): To the question contained in an application for insurance, " For what purpose are tlie premises occupied ? " the answer was, " dwelling, &c," Held, that this meant " dwelling et cetera," and that the applicant thereby gave notice that the premises were otherwise occupied for another purpose also — w hich it appeared was as a drinking saloon. United States Decisions. In MuHH V. State of Illinois (9i U. S., S. C, 113), Held : That a State Legislature has power to fix the maximum rates to he charged for the storage of grain in elevators, notwithstanding they are used as instruments of commerce, by those engaged in inter-State as well as in State commerce. Such regulations can be enforced until Congress enacts conflicting regulations. Waite, C. J., in delivering the opinion of the Court, said : Under the powers inherent in every Sovereignty, a Government may regulate the conduct of its citizens towards each other, and, when neces- sary for the public good, the manner in which each shall use his own property. It has in the exercise of these powers been customary in England from time innnemorial to regulate ferries, con^mon carriers, hackmeu, bakers, millers, wharfingers, innkeepers, &c., and in so doing to fix a 1 ii OWER. B. N. A. ACT, 1867 — SECT. 92, § 9, PROVIXCIAL LEGISLATIVE POWER. 233 niigbt Pascal, e writ- hostile find it •sement le with- isted iu Liblislied , Church an iuter- if law on does not Christian )/ Canada For what LUg, ^C. applicant upied for iloon. ates to be they are ■State as •ced until meat may len neces- his own England I hack men, to fix a maxirmini of cliarge to be made for services rendered, accommodations furnislied, and articles sold. Ill Clu'ciaji), Burlington & Qaincfi/ R. R. Co. v. State of Iowa (94 U. S., S. 0.. 155), ilcld : That a State Legislature has power to fix the maximum rates to be chaiged for tiie carriage of passengers and goods by a Comi)any whose railruud is located within the limits of the State, and that until Congress acts a State must be permitted to adopt such rules and regulations as may be necessary for the promotion of the general welfare of the people within its own jurisdiction. Tltnrhnr v. Missuc/ntsett*, — Flrtdur v. State of Rhode Island, — Fierce V. Stdti' if Ni:w Jlmnpshiie (Ijiceiisu Cases), 5 IIow., 504, Held: That the Laws of Massachusetts foruidding the sale of sitirituous liquors in a less (quantity than 28 gallons are not inconsistent with any of the provisions of the Constitution of the United States. Same decisions as to Laws of Rhode Island and New Hampshire imposing similar restrictions. In Doyle v. ( ■ontinent.al Insurance Co. (94 U. S., S. C, 535), Held : That a foreign corporation has no constitutional right to transact business in a State as .against State legislation prohibiting it, and as the State has the right to exclude it, the means by which she causes such exclusion, or the motives of her action, are not the subject of judicial iu(iuiry, and that, therefore, a State may compel a foreign Corporation to take out a license. Mr. Justice iiradley, Mr. Justice Swayne and Mr. Justice Miller dissented. Mr. Justice Bradley, who delivered the dissenting opinion, said : Thougli a State may have the power, if it sees fit, to subject its citizens to the inconvenience of prohibiting all foreign corporations from transacting business within its jurisdiction, it has no power to impose unconstitutional conditions upon their doing so. The conditions of society and tlie modes of doing business in this country are such, that a large part of its transactions is conducted through the agency of corporations. Tiiis is especially true witli regard to the business of banking, insurance and transportation. Individuals cannot safely engage in enterprises of this sort requiring large cai)ital. They can only be successfully carried on by corporations, iu which individuals may safely join their small contributions without endangering their entire fortunes. To shut these institutions out of neighboring States Would not only cripple their energies, but would deprive the people of m 1 !i ■J .11 234 B. N. A. ACT, 18G7 — SECT. 92, § 10, PROVINCIAL LEGISLATIVE POWER. those States of the benefits of their enterprise. The business of insur- ance, particularly, can only be carried on with entire safety by scatter- ing the risks over large areas of territory, so as t(j secure the Iwneiits of the most extended average, and the needs of the country recjuire that corporations — at least those of a coniuiercial or financial character — should be able to transact business in diiferent States. In Berty seized, alleging the tran- saction of the IGth November, 1875, and the conliruiatory Act 39 V. c. 2, as their title to part of the property seized. This opposition was contested on the ground that the Coini»aiiy b'jing a creature of the ;, I 230 D. N. A. ACT, 1867— SECT. 92, § 10, IMIOVINCIAL LKCl.SLATIVK I'OWKIt. Dominion rarliiiinent, and the transaction not having heen anthori/eil hy that railianient, the, transaction as well as the Trovincial Act 31* V. c. 2 were inoperative and invalid. TIk; Suiierior Court dismissed the contestation and maintained the opposition of the Attorney General, holding that the nullity of the transaction and of the Act o9 V. c. 2 not having l)een demanded, the Court could not pronounce these oper- ations null and void. Ill the Quul'ii'm IkiK'li tills jiuljiiiiont w;ts coiifiriiud. But, on Appeal to llio I'livy Council, ilio ju giiient ofliie Courts below was reformed. Their Lordshii)s on the 2Gth February, 1880, after reciting the facts, and especially that part of the Dominion Statute which had made that railway a Dominion enterprise, and disclosing of an intervention made by the Attorney tJeneral on the same grounds, and of the opjiosition, said : "These provisions, taken in connection with, and read by the light of those of the Imi)erial Statute, 'the British >«'orth America Act, IBtiT,' which are contained in section 01, and aub-section lO c of section 02, estaljlish to their Lordships' satisfaction, that the transaction between tlie Conipany and the Liovernment of Quebec could not be validated to all intents and purposes by an Act of I'roviucial Legis- lature, but that an Act of the I'arliaiiunit of Canada was essential in order to give it full force and elfect. This proposition was tiually hardly disputed by the learned Counsel for the respondent, but they relied u[ion the Hih clause of the deed, and the -ilith section of the Quebec Act, as showing that recourse to the I'arliament of Canada for its sanction was within the contemplation of the parties, and contended that, before that sanction was obtained, the transaction was valid for some purposes, antl gave certain inchoate rights which were capable of being asserted. In su}»port of their argument they cited the Great Western llaihvay Company v. The Birmingham and Oxford Junction llaihvay, 2 Bhill. o07, and what was said by Lord Cottenham in that case. It is to be observed, however, that Lord Cottenham, when rul- ing that the contract, which could not be fully carried out without I'arliamentary sanction, was not, in the absence of such sanction, to be treated as a nullity, and that some of its provisions might nevertheless be binding, was dealing with the rights of the parties to the contract i/iUtr se. Here the public, and the creditors of the Company, in which category the appellaiits fell since the i^uestious raised by these two appeals must be considered as if the award were valid, were no parties to the transaction, and could not be affected by it until it was fully \ iWF.U. )rizcd .ct 3'.> uissutl iiusral, . c. 2 oper- pe-iil to xi facts, do that 11 iiuidc n, said : he light ca Ai't, LO c of usactiou 1 uot bo il Legis- eiitial in ts tiually but they ill of the iiada for )uteuded valid for ,pable of |he Great J unction in that [vhen rul- without [on, to be ertheUiSS contract lu which ,he3e two 10 parties [was fully A. ACT, 1867 — SECT. 92, § 11, I'HOVINCIAL LFCISI.ATIVE POWER. 237 •ted by nn Act of the rarlinnicnt of Cnnada, to obtain wliich no t soenis over to have been made. in (heir Lonlsliips' opinion, therefore, the trnnsartion, considered as a whole, was of no force or valiir y as aj^ainst tlie ri<;hts of the a]>]>el- lants wlicn tlie decisions of the Canadian Conrt.s njion tlie intervention and the o])])osition were ))assed." In 77if Wiixon ]\finnifiirt}trhit) (^o. v. Lr Cluuihi • Ft r <1r Lfrtx, etc. (5 Q. L. II. 10:{), (0. S.) Cnsault, J. :_ Tl n'est jamais venu k I'esprit de qui que ce soit qu'une ( 'oinpaf;iiii> incorporee de Chemin de Fer ]iuisse vendre son cheniin de gre a gre, sans una autorisation expresse de la Legislature. In Crrth't VuNei/ Rinlway Co. v. Great Weslcni Rnihray Co. (25 Gnuit's Clvinc. 509), Iloldi That when it is necessary for a Provincial IJailwav to cross a l)oni- iuion Railway, the Company must first get the approval of the llailway Committee of the Privy Council. H. E. Tasclioroiiu, J., in the dtizvuH Inmrunce. Co. & Pursons (3 Cm. 8. C 121), rcinarkinsi upon the business of telci^niplilnir, s.iid : Sending a message by telegrapli is not a transaction of commerce, yet, telegraph comi)anies, and the riglit to regulate tliL'in, are held in the United States to be under the Federal Power as a part of commerce and this, though a very large proportion of the tele^ra[ihic messages have nothing to do with commerce at all. {Wvstevii Unioti Teli'(jr(ij>h Ci>. V. Atlantic and Pdclfic States Telecjraph Co., 5 Nee. 102 ; Penna- cola Teleyvaph Co. v. Western Union Telegraph Co., 96 U. S., S. C.) With us, on the same principle, telegraph business would also be exclu- sively under Federal control, if the British North America Act did not ex]iressly vest in the Local Legislatures the control over local and pro- vincial lines, as lonj; as the Federal Parliament does not declare them to be for the general advantage of Canada. § 11. The Incorporation of Companies with Provincial Objects. An Act pjisscd by the Lcgishiturc of Nova Scotia, in 1874, intituled : An Act to incorporate tlic Hiilif'ax ('oinpany " limited," giving rights ttcr to tlic Luw OfliurrH of tlic Crown : 1. WhotliiT the authority to issuo Mania<,'e Licenses vested in the (Jovenior CJeneml under Her Majesty's (Joinniission or in the Lieut- enant Governors of the several Provinces. 2. Whether the power of legislation resi)eftin«,' the jiuhlinition of lianns, or the issue of licenses, rests with the General or Local Lcgisla- tun-s. In answer to the above, an opinion was uivon in the following words by the L.iW Officers of tho Cr< wn, transmitted by the Secretary of State lor tlic Cohmies, on the l.'jth J anu;iry, 1870 : It appears to them that tht^ juiwer of legislating upon this suhjcct is coiift-rred on the I'roviiu'iiil Legislatures, Ity 30 Vic. chap, .S, sej. 02, nniler the words " the soleinni/ation of niarriagi; in the Province." The phrase " the laws respecting the solenniization (»f nuirriages in Knglaud " occurs in the preamble of the Marriage Act (4th Geo. IV. C. 76), an Act which is very largely concerned with matters relating to banns and licenses, and this is, therefore, a strong authority to show that the same words used in the British North America Act, 1807, were intended to have the .same meaning. "Marriage and Divorce," which, by the Olst section of the same Act, are reserved to the Parliament of the domin- ion, signify, in their opinion, all matters relating to the ufatus of mar- riage, lietween what persons and under what circumstances it shall be created and (if at all) destroyed. There a' r reasons of convenience and sense why one law as to the > ' iiarriage should exist throughout the Dominion, which have .iCHtion as regards the uniformity of the procedure whereby that *» /.« is created or evidenced. Convenience, indeed, and reason would seem alike in favor of a difference of procedure being allowable in Provinces differitjg so widely in external and internal circumstances as those of which the Dominion is composed, and of permitting the Provinces to settle their own proce- dure for themsel ves, and they are of opinion that this permission has been granted to the Provinces by the Imperial Parliament, and that the New IJrunswick Legislature was competent to pass the bill in question. (Dom. Sess. Papers, 1877, No. 89, p. 340.) .vhereby B. N. A. ACT, 18G7— SECT. 92, § 13, niOVINCIAL LEOISLATIVE POWER. 239 § 13. Property and Civil Rights in the Province. Tlie power of nnikiiii; laws ivlutiii;; to tlio (K'soi'tit iiml acquisition of proporty, «nd till! ro}.'ul;ition and protection of the '" civil riulits " of its* ciiizciiM by proper leiii>l.ition, is incident to every separate Sovcrcinnty. This p«iwer is cons<-<|iient- ly assij:iied hy this siil>-seclioii (and iiidiieetly hy suh-cetion IH ns iteinj^ anions; the m.ittcrs purely local) exclusively to tlio Provincial < Jovernnients. On this head, it must he remarked that ii\ no part of the H. N, A. Act do we find a iindtation to the power of the liCpiislatures, wliethc!- Federal or Pro- vineial, such as is contained in art. 1, sect. 10, 1st clause, of the American Federal Constitution, in tlio ('oIliiwin'„' words :" No state . . . sliali pas^any bill of attainder, *.r jxist/nct'i law,(// imo impniriiHj the nbligatiov nf contracts." In the case of Union St. Jacqinn A- liil!nh', the constitutionality of the Queboc statute was attacked on the Ltround that the Union St. Jurijucx havin*^ ncknowled'.;ed that they were unable to meet tluiir liabiliiies, and Inviif.,' de- manded a compulsory composition with their creditors, the Piovin<'ial statute >rraiifinart of it to the Parliament, liut the laws to b«; made by the Provincial Legislatures are confined to i)ro])erty, civil rights, and matters of a local and private nature in, the Province, so that, although no limitation is imjtosed as regards the extent to which the Legislature may in their discretion affect j)rivate rights within their jurisdiction, tliey are limited to dealing with rights and jiroperty within the Province. Tliat the Legislature have that power in all cases where the pro- perty and rights sought to be affected are " in the Province " to the same unlimited extent that the Imi)erial Parliament has in the United Kingdom, I have not ♦he slightest doubt. The Queen v. Dmr rf tif. (I Pu^wlcy 300), Held by the Supreme Court of New Bruiiswiek : That the Provincial Act 33 Vict. c. 47, authorizing the issue of debentures to the Houlton Branch Railway Company to aid in the construction of a railway from Houlton in the State of Maine to the New ]?runswick and Canada Railway in this Province, was beyond the powers of the Local Legislature imder the " B. N. A. Act, 1867." This case came before the Court on an ap{)lication to quash an assessment made on the town of St. Stephen for the purpose of paying the interest on the debentures. Allen, J., in delivering the judgment of the Court, said : In the case of Regina v. Chandler (1 Ilannay 548) this Court very clearly enunciated the princii»les by which it should be governed in determining questions where local legislation was attempted on B. N. A. ACT, 18G7 — SECT. 92, § 13, PROVINCIAL LEGISx..VTIVE POWER. 241 matters ex])i'essly witlulrawn from the Provincial Legislatures, and vest('(l exclusively in tlio Parliament of Canada, and in the case of The Exropean and North Americaii Riuhvuy ComjHuiy v. Tliomas, (1 Pugsley 42) we examined those portions of the Ulst and 02ud section of the H. N. A. Act, 18G7 by which the question now under discussion must be determined. In that case we decided, that where the railway, the immediate subject of legislation, was to be constructed clearly within the limits of the Province, and not connecting the Province with any other or others of the Provinces, and no power was attempted to be giv ;n co extend beyond, it was projierly the subject of legislation by tht Pro- vincial Assembly. Fisher, J. (dissenting), held, that the Legislature was clearly authorized to enable the ])eopie of St. Stephen to contribute towards tlie construction of that ])ortion of the line within the Province. If there was any thing in the Act 30 Vic. c. 54 which would come within the exclusive powers of the Parliuinent it is saved by tlie 129th section of the P>. N. A. Act, 1867, and never having been repealed, altered or amended in any way is still in force. It also appears to me that the Act 33 Vic. c. 47 comes within the category of powers provided for in the 16th clause of the 92nd S(-ction of the B. N. A. Act, 1867, lieing ])urely a matter of a local nature. It cannot be contended that the li. N. A. Act is to be so construed as to prevent localities from granting aid to some local object, or receive some advantage ])urely IdCid. Nothing can be more local than the Act 33 Vic. c. 47, for its euuctment is made contingent upon a favorable vote of the rate-payers of the locality desiring the railway. On iippeal to tlic Privy Council from the S. C. of New Brunswick (6 L. W. P. C, 272), their Lordshijis licld : That the Act of the Provincial Legislature of New Brunswick (33 Vic c. 47), which enabled the majority of the inha.jitants of the Parish of St. Stephen to raise by local taxation a subsidy designed to promote a Work which they considered for the benetit of their town, and to place tlir inhabitants in a position to bargain and to act for their common leuelit in the same numner as a private per.son might have thought it for his l)enefit to do, does not conflict with sub-section 3 of section 91 of the B. N. A. Act of 1867. Sir James W. Colville in delivering the judgment of their Lord- sliips said: It was contended that sub. sec. 2 of sec. 92 authorizes iliiect taxation only for the purpose of raising a revenue for general 242 B. N, A.ACT,1867 — SECT. 92, § 13, provincial legislative power. ll Provincial jnirposes, that is, taxation incident on the whole Province for tlie <,'('iu>rrtl ])ur[)oses of the whole Province. Their I.or(l,shi[)s see no ground for giving so limited a construction to this clause of the Statute. They think it must be taken to enable the Provincial Legislature, whenever it shall see fit, to impose diiect taxation for a local purpose upon a particular locality within the Pro- vince. They conceive that the 3rd article of sect. 91 is to be reconciled with the 2nd article of sect. 92, by treating the former as emj)()wering the Su])reme Legislature to raise revenue by any mode of taxation, whether direv.. or indirect, and the latter as confining the Provincial Legislature to direct taxation within the Province for Provincial pur- poses. Their Lordships are further of opinion, with Mr. Justice Fisher, the dissentient judge in the Su])reme Court, that the Act in ([uestion, even if it did not fall witliin the 2nd article, would clearly be a law relating to a matter of a merely local or private nature within the meaning of the 16th article of section 92 of the Imperial Statute; and therefore one which the Provincial Legislature was competent to pass unless its subject matter could be distinctly shown t(j fall within one or other of the classes of subjects s]x;cially enumerated in the 91st section. This view is in accordance with the ruling of this tribunal in the recent case of L' Union St. Jacnues de Montreal v. Dame Julie Belisle. McClfinagan, appellant, S theSt. Ann's Mittual Buihlinf/ Society of Montreal (3 L. N. 61). On the 15th May, 1879, the Dominion ParlianuMit passed an Act to provide for and to authorize the liquida- tion of the affairs of Building Societies in the Province of Quebec. Held, by the Court of Queen's Bench, Montreal, that this Act was clearly unconstitutional. Sir A. A. Dorion, C. J., in delivering the judgment of the Court, said : This Act is not in the nature of an insolvent law, for it is in- tended to a])ply to all building societies whether solvent or not. It is therefore essentially an Act affecting civil rights, which, under the provision of the B. N. A. Act, 1867, comes within the exclusive jurisdiction of the local or Provincial Legislatures. The case of L'Union St. Jacijues and Belisle (20 L. C. J. 29) is in point. In that cj.se the Lords of the Privy Council decided that a law authorizing a Benevolent Association, in financial difficulty, to compel POWER, rovince ruction enable direct iie Pro- conciled lowering taxation, rovincial cial pur- e "Fishev, ijvtestion, be a law ithin the Statute ; ]>etent to all within 1 the 91st tribunal uue Julie \iff Society iDominion ii> liquida- Itibec. Act was )urt, said ; it is in- not. It I under the exclusive 29) is in Ihat a law to compel It. N. A. ACT, 1867 — SECT. 92, § 13, PROVINCIAL LEGISLATIVE POWER. 243 ])!irti('.s to accept a fixed iiidcinnity in lieu of the annuities to which tliey woi'o entitled under the rides of the Society, was within the legislative powers ttf the Le<,nslature of the Province of Quebec, as nftcctinj^' civil rights only. We cannot, therefore, ccmsider the jmtceed- ings in liquidation adoi)ted by the Scjciety as legal. But, these proceed- ings having since been rendered valid by the Quebec Legislature, there is now no ground to restrain the Society from i>roceeding to the li(|uidation of their affairs, and there was none when the judgmcMit of the Court below was rendered and when this a])i»eal was instituted. Federal U. S. Decisions. In licer Compuny v. .S'^/^■ of Mussuchiisetts (97 U. S., S. C, 25), Hold : That all rights are held subject to the police power of a State : and, if the public safety or the public morals require the discontinuance of any nianufiieture or tratUc, the Legislature may provide for its dis- continuance, notwithstanding individuals or corjtorations may thereby suffer inconvenience. That as a measure of jiolice regulation, lo(jking to the preservation of puldic morals, a State law prohibiting the manufacture and sale of intoxicating liquors within the State is not repugnant to any clause of the Constitution of the United States. Mr. Justice Bradley, in delivering the o])inion of the Court, said : Of course;, we do not mean to lay down any rule at variance with what this Court has diu-ided with regard to the ])aramount authority of the Constitution and laws of the United States relating to the regula- tion of Commerce with foreign nations and among the several States. The iJaintift" in error was incorporated for the purpose of manufac- turing nuvlt 1.' /lors in all their varieties, it is true, and the right to manufacture undoubtedly, as the plaintiff's counsel contends, included the incidental right to dispose of the liijuors manufactured. But if the public safety or the public morals reiiuire the di.scontinu- ance of any manufacture or traffic, the hand of the Legislature caiujot be stayed from providing for its discontinuance by any incidental incon- venience which individuals or corporations may suffer. All rights are held subject to the police power of the State. We do not say that property actujiUy in existence, and in which the right of the owner has become vested, may be taken for the public good without due compensation. But we infer that the liipior in this case, as in the case of Bartemeyer v. Iowa (18 Wall. 129), was not in exist- ence when the liquor law of Massachusetts was })a33ed. 244 B. N. A. ACT, 18G7 — SECT. 92, § 13, TKOVINCIAL LFXilSLATIVE POWER. i 1. ' •> il 1, > Whatever differences of opinion may exist as to the extent and bonnd.aries of the ))olice power, and however dillicult it may lie to ren- der a satisfactory definition of it, there seems to he no douht that it does extend to the [jrotection of the lives, health and property of the citizens, and to the preservation of good order and the piihlic morals. Tlie Legislature cannot by any contract divest itself of the power to provide for those objects. They belong emphatically to that class of ob- jects which demand the application of the maxim salus popall nuprema lex, and they are to be attained and provided for ])y such ap[)r()i)riate means as the legislative discretion may devise. That diacretiijn can no more be bargained away than the power itself. (Citing — Boyd v. Ala- bama, 94 U. S., 645.) In .Winm v. Jlllnois (94 U. S., S. C, 125), held : That under the police powers inherent in every Sovereignty the Government may regulate the conduct of its citizens, one towards an- other, and the maimer in wliich each shall use his own })roperty, when such regulation becomes necessary for the public good ; and where '"are- houses are situated, and their Inisiness is carried on exclusively within a State, she may, as a matter of domestic concern, prescribe regulations for them, notwithstanding the}' are used as instruments by those engaged in inter-State, as well as in State, commerce ; and may limit the rates to be charged for the storage and handling of grain, and require a license to be taken out and a bond to be given, and until Congress acts in reference to their inter-State relations, such regulatif)ns can be enforced even though they may indirectly operate upon commerce beyond her immediate jurisdiction. Mr. Chief Justice Waite, in delivering the ojiinion of the Court, said : The exercise of these ])ower.s does not conflict with that part of the 14th Amendment to the C(jnstitution which ordains that " no State shall deprive any i>erson of life, liberty, or property without due process of law." While this provision of the amendment is new in the Constitution of the United States as a limitation ui)on the powers of the States, it is old as a princij)le of civilized government. It is found in Magna Charta. . . When one becomes a member of society he necessarily parts with some rights or privileges which, as an individual not affected by his relation to others, he might retain. . . . This is in the very essence of government, and has found expression in the maxim sic utere tuo ut alienum non Itjediis. From this source come the police powers OWER. B. X. A. ACT, 18G7 — SECT. 92, § 13, PKOVINCIAL LEGISLATIVE POWEH. 245 it and f) veu- ;hat it ity of public )\ver to »of ob- iprenia io])riate L can no V. Ala- rnty the artls au- y, when >re '"are- y within iriiUitious . engaged the rates a license s acts in enforced yond her le Court, [vt part of no State [e process listitution 1 States, it Maj^na tccssarily It affected . the very sic rtt<;»*e je powers under which it has become customary in England from time immemo- rial, and in this country from its first colonization, to regulate ferries, coumion carriers, hackmen, bakers, millers, wharfingers, innkeei)ers, &c., and in so doing to fix a maximum of charge to be made for services rendered, accommodations furnished, and articles sold. Looking then to the common law, from whence came the right which the Constitution protects, we find that when private jn-opeity is " affected with a public interest it ceases to be juris privati only." This was said by Lord Chief Justice Hale more than two hundred years ago in his treatise De Portilms Marls (I Harg. Law Tracts 78), ami has been acce})ted without objection as an essential element in the law of pro- perty ever since. I'roperty becomes clothed with a public interest when used in a manner to make it of public consecjuence and atfect the conununity at large. When therefore one devotes his property to a use in which the public has an interest, he in eft' l grants to the public an interest in that use, and must submit to be ctjutrolled by the public for the common good to the extent of *''ie interest he has thus created. . This statement of Lord Hale was cited with approbation, and acted upon by Lord Kenyon in Dolt v. Stennett (8 T. K. (JUG). And the same has been held as to warehouses and warehousemen in Aldnutt v. Inglis(12East, 527). In later times the same principle came under consideration in the Supreme Court in Alabama. That Court was called u[ion in 18-41 to decide whether the power granted to the City of ilobile to regulate the weight and price of bread was unconstitutional, and it was Contended that it would interfere with the right of the citizen to pursue his lawful trade or calling in the niotle his judgment might dictate, but the Court said : " There is no motive for this interference on the part of the Legislature with the lawful actions of individuals or the mode in which private property shall be enjoyed, unless such ciiUing affects the public interest, or private property is employed in a manner which directly affects the body of the i)eople. Upon this principle in this State tavern-keepers are licensed, . . and the County Court is required, at least once a year, to settle the rates of innkeepers." Ill City of Neio York v. Mlhi (11 Peters 102), Held: That a State may lawfully re([uire from the master of every vessel arriving in her ports information of the character of the passengers, and that a law passed by the Stiite of New York to this effect was a mere i>olice regulation, and not in conflict with the provision of the 246 «. N. A. ACT, 18G7 — SECT. 92, § 13, provincial legislative rowEU. Constitution of th.. United States conferring the exclusive jjower on Congress to regulate commerce. Held, also, that all those powers which relate to merely municipal regulation or which may more properly be called internal police, are not surrendered or restrained ; and conseciuently in relation to tliese the authority of a State is complete, unijualitied and exclusive. Ill Rnih'oad Company v. Richmond (1)6 U. S., S. C, 529), Held: That an Ordinance of the Council of the City of Richmond, i)rohibit- ing the use l)y a llailroad corporation of its locomotives in certain streets of the city, does not infringe upon its constitutional rights, by depriving the Company of its property without due ja'Dcess of law. That all property in a city is sulyect to the legitimate control of government unless protected by contract rights. Appropriate regula- tion of the use of property is not " taking " property, within the mean- ing of the Constitutional prohibition. Mr. Chief Justice Waite, in delivering the opinion of the Court, said : " The power to govern im- plies the power to onlain and establish suitable police regulations ; and that, it has often been decided, authorizes municipal corporations to prohibit the use of locomotives in the public streets, when such action does not interfere with vested rights. Such prohibitions clearly rest upon the maxim sic utere tuo ut ali- enum non Icadas, which lies at the foundation of the police power. In Xcw Orleans v. United iStatts (10 Peters U. S., S. C, 0G2), Held : That the Federal Government has no power to exercise police con- trol over the quays and public places within the State of Louisiana formerly belonging to the Crown of France or Spain, — that the Treaty of cession of Louisiana to the United States could not enlarge the powers of the Federal Government, the State of Louisiana having been admitted into the Union on the same terms as the original States. In re Utavin and Corporation of Orillia QiG U. C, Q. ii., 159), Held by a unanimous Court (Richards, C. J., Morrison and VVilson, J. J. A.) : That it was within tlie authority of the Legislature of the Pro- vince of Ontario to grant to a Municipal Corjioration a power of limit- ing the number of taverns in a municipality, or prohibiting the sale by retail of spirituous li(|Uors by shopkeepers in such municipality, — that this is a power which may be properly exercised by the Local Legis- lature as a matter chiefly of police, of a merely local and private nature, when it does not interfere with the sale of imported or manufactured liquors otherwise than by retail. roWER. wev on luicipal ice, are lese the »v()hibit- ccrtain gilts, by law. outrul of > rogula- le mean- -Vaite, in )vern im- ons; and rations to ich action ao ut ali- )0\VCV. Held: lice con- Lonisiana he Treaty ilarge the been Iving tates. Id Wilson, If the Tio- |v of liniit- |iu sale by lity,— that jcal Legis- ite nature, lunfactured H. N. A. ACT, 18G7 — SECT. 92, § 13, PROVINCIAL LEGISLATIVE TOWEU. 247 1» Pierre V. Biirtrum (1 Cow>T*?r 270) it was held: That a by-law of a city prohibiting the slanglitering of cattle by butchers within the city limits was not in restraint of trade, but only a reasonable regulation of it by tlie Local (.lovernuient. Story (Com. on Cons. sec. 10U6-1014,) !*ays : The acknowledged powers of the States, over certain subjects having a connection with cunnnerce, are entirely distinct in their nature from that to regulate commerce. Among these are inspection laws, health laws, and laws regulating turnpike roads, and ferries, all of which, when exer- cised by alState, are legitiniale — arising from the general j)owers belong- ing to it — unless so far as they contlict with the powers delegated to Congress. They are not so much regulations of commerce as of police, and may truly be said to belong, if at all to commerce, to that which is purely internal, though they niay be controlled by Congress when they interfere with their acknowledged powers. In Voioan V. Wr'ujht (23 Grant Ch. GI6^ lJl:ikc, V. C, said : That exclusive power is conferred upon the Local Legislatures by the 1). N. A. Act, 1867, to deal with property and civil rights in the Provinces. The true principle ,i.s, adopting the language of the Court in re Uuvilhae, that under the Confederation there has been a Federal, not a Legislative Union; that to the Provincial Legislatures are com- nutleil the powers to legislate upon a range of subjects which is indeed limited, but that within the limits prescribed the right of legisla- tion is absolute. ^Vnd th^t the Local Legislatures have that power in all cases, where the property and rights sought to be affected are in the I'rovince, to the same unlimited extent that the Imperial Parlia- ment has in the United Kingdom. Dithie orulitics Fund of the Presbyterian Church if (,'uiiadt ill connect ion with the Church of iScotland (3 L.N. 244^ Hold, i)oc., 167'.), by tliu Superior Court, Montreal, and contiriiiud by tlie Q. B., appeal .side, IDth June, 18oU: That under sec. 92, §13, of B. N. A. Act, the Provincial Legislatures are competent, to the exclusion of the Federal Parliament, to deal with property and civil rights in the Provinces ; that in the exercise 01 ihiit power they may validily legislate over the itroiierty of the Presbyterian Church, and to do so they may resjiectively alter the settle- ment of that property, made by Acts of the heretofore United Provinces ^^ m 248 u, N. A. ACT, 1867 — sect. 92, § 13, puovincial legislative powek. of I'pper Cuiuida and Lower Canada, and that, therefovo, the Quebec rrovincial Act o8 Vic. c. 04 is not ultra circff. In the Superior Court, Jette, J., decided as follows : Having heard the parties hy their counsel respectively upon tlie merits of this aiuse, examined the procedure, papers fyled, and the evidence, seen the admissions I'yled by the parties, and deliberated : Considering that the petitioner alleges in his demand that the Corporation, defendants, was created, under the name of " The Board for the management of the Temi)oralities Fund of the Presbyterian Cluircli of Canada in connection with the Church of Scotland," for the possession and administration of a certain fund belonging to the .said Church, and previously created by resolution of the Synod of the said Church, in January, lSi>o, and that by the statute creating and incor- porating the said Board, it was, among other things, provided and warranted that the property of the said fund should belong exclusively to the said Church; that the income of the .said fund should be subject to divers annual charges laid upon it at the time of its creation in favor of the ministers of the said Church, and finally, that the members of the said Board should always be ministers or members of the said churcli, in full communion therewith and that four of them should go out and be replaced every year ; Considering that the saitl petitioner alleges besides, that when the said fund was createil he was one of the ministers entitled to a charge or annual allowance of $45U, to l^e taken out of the revenue of the said fund ; that it was then covenanted and admittetlas a fundamental prin- ciple of the creation of the said fund, that, in order to be entitled to any revenue derived from it, it should be retjuisite to be a minister of the saiil Church ; and that the petitioner is still at this day in full possession of his rights and privileges in this respect, having remained a minister of the said Church, and in full communion therewith ; con- sidering that the petitioner alleges moreover, that by an Act of the Legislature of the Province of Quebec passed in 1875, being 38 Vic. c. 64, the condition of administration of the said fund has been changed in a manner to continue in olUce the members of the said Board for the time being, and to provide for replacing them only in the case of va- cancy by death, resignation or absence, and by persons other than mem- bers of the said Presbyterian Church of Canada in connection with the Church of Scotland, and that the said Act authorizes, moreover, the said Board to take from the principal of the said fund, — but that, the said II. N. A. ACT, 18G7 — SKCT. ••2, § ll^, PKoVINCIAL LEG SI,ATIVF. POWKIt. 249 Provinoial Statute is uncoiistitutioniil and in excess i>f the powers of the saiil Legislature of Qufbec ; Cdusidoring that tlie petitioner alleges also, that t'le present Tn<'m- hers of the said Hoard have ille«,fally leniainiMl in office, as sucii, l>y virtue of the unconstitutional Act above mentioned, that they have no right to till the said ollice, and that they have, moreover, acted illegally by jiaying divers sums to ministers who were no longer members of tiie said Church, and the p(ititi(»ner demands in conseiiuence, that the said Provincial Statute, 3H Vic. c. 64, be declared unconstitutional, null and (if no effect, that the defendants be declared not legally elected mem- bers of the said Hoard, and that they be ordered to cease from occujiy- ing the said otlice and administering the said property, and finally, that it be declared that the Temporalities Fuiul in question is the exclusive property of the said Church, and cannot be employed otherwiso than for the objects provided for in the first place, and, moreover, that the Keverends John Cook, James C. Muir, George Bell, John Pairlie, David W. Morrison and Charles A. Tanner be declartid not to be any more ministers of the said (Jhurch, anil to have no right to the revenue of the said fund ; Considering that the defendants — with the exception of the Rev. Gavin Lang and Sir Hugh Allan — have contested this demand, contend- ing among other things that the Statute attacked by the petitioner is constitutional and that their acts are legal ; Considering that by sec. 92 of the B. N. A. Act, 1807, it is declared that itro]ierty and civil rights are of the exclusive jurisdiction of the I'mvincial Legislatures, and that the rights involved in the said Act, 38 Vic. c. 64, of which the petitioner demands the nullity, formally fall within the radius of the said section 92 of the Constitutional Act, and are therefore under the jurisdiction and power of the Provin- cial Legislature, and that in conseiiuence the said Provincial Statute is valid and legal, and has full Hn'ce and effect ; Considering that though the jietitioner is not residing in the Prov- ince of (^uelu'c, the laws of the Legislature of tiie Province nectissarily allect the rights which he may ])(issess or claim in the said Province, and that therefore tiie rights whieli he invokes in this cause are inevi- tably subject to the jirovisions of the said Provincial Act, 38 Vict. c. 64 ; Considering that, according to the provisions of the said Act, the defendants are legally in ottice as members of the Corporation, and that they have the right to continue to atlminister the property which has been entrusted to them as such ; R 2rj() H. N. A. ACT, 1807 — SECT. 92, § l;}, PROVINCIAL LKdI.SLATIVK I'OWKH. Considering,' that us well uiuka' the tunn.s of tht; siii() has l)t;en completely protected and <^uaranleed ; Con.sidi'rinj,' nevertheless, that, hy the two Statutes last inenti(»ned, the ownershij) of the said fund is no more exclusively attribut»'d to the said I'reshyterian Church of Canada in connection with the Church of Scotland, hut that after the extinction of all anterior rij^lits "guaranteed hy the said fund, it is tninsferred to the rnisliyterian Church in (Jaii- ada, formed of the; said rre,sl)yterian ("hurch of Canada in connection with the Ciiurch of Scotlanil and of three other churciies, the union of wdiich has been authorized hy the said Statute 38 Vic. c. 02; and that, l)y virtue of the dispositions of said Statutes, the said Jievds. .Iidiii Cook, .lames C. Miiir, Ceorge liell, .John Fairlic, David W. Morrison and C'hurles A. Tanner had the right to receive, and the defendants had the ri},dit to ])ay to them, the sums received by them out of the incfjmo administered by the defendants; ('(Misidering in conse(pience that the demand of the petitioner ia unfounded anil cannot be maintained, and that the defendaiits (the iiev. Gavin Lang and Sir Hugh Allan excepted) are well fountled in their pleas : ^Maintain the pleas ofthe said defendants (with the above exception), and di.jiniss in consecjuence the demand of the said i)etitioner, and quash and annul to all intents and purposes the writ of injunction issued in this cause and give »ta///-/t'i'^reseiit I'esjiondents. Tills Act being still in furce, in 1874, numerous clergymen and others, mendjers of dill'ereiit Tresbyterian Churches in Canada, deemed it desirable to unite their ecidesiastical fortunes and hencefor- ward to form (jue body, to be called "The Tresbyterian Church in Canada." Nothing could be more lawful or more ]>raiseworthy than the attempt to sink niiiitir dilferences of opinion in ordctr to attain greater elliciency, but we liavt; not to di'cide as to motives anuebec for authority to give etfect to this determination, and to enable the new Ixuly to deal with the propy suction 4, ctTtaiii K'<,'i.slation in Ontario respoot- inj^ the jtiojHTty (»f itdi^ioiis institiUiotH, is made ftppliiMble to tli<; various ooiij,Mt'j.'ation.s in Ontario in communion with thf Pri'sliyt«>rian Church in Canada. Scctioii a, doclaros that all tin? jtrojK-rty real nnd personal, ludtnij^'inj^ to or Indd in trust fur the use of any rollej^e or eihn'ational or olIitT institution, or for any trust in fonni'<'tinn with any of the said churches or reli^fious bodies, cither {generally or for any sp'cial purpose or object, .shall, from the time the .sjiiective Churches." The legislation in the Province of Quelnjc took the form of two Acta, 38 Vie. cap. 02 and 04, the former re.si>ecting the union of cer- tain Presbyterian Churches; the latter is styled " An Act to amend the Act intituled ' An Act to incorporate the Board of Management of the Temponilitics Fund of the Presbyterian Church of Canada in connection with the Chuich uf ScuLlaud.' " Cap. 02 of the 38 Vic, Quebec, with the exception of the section relating to the Temporalities Fund, is substantially the same as the Ontario Act, 38 Vic. cap. 74. One or two differences, it may, however, be well at once to note. The Ontario Act bestows all the above men- tioued privileges on " The Presbyterian Church in Canada ; " while the Quebec Act (c. 02) bestows them on the body so named, "or any other B. N. A. ACT, 18r>7 — SECT. 02, {ij 13, PUOVINCIAL LK(;iSLATIVK POWKU, 253 irchcs tL'iiivn ,f oer- to th« ,-t«>rian •ill au<\ U'j^e or ilh iviiy for any vust fov, "aiiaila. lul witU II S deals 'rtuada in Uoanl in- Sc'i'tinn '.t jsbytovian lion Nvitl' ly 10 take Itiiat "the loon as tlio rVUluVS of im of two |i.»n of cer- laniend the lent of the Icounection Ihe section Ime as the }, however, libove nu-n- while the Ir any other nanie the paid Clmrch may adopt." This Quidjcc Act dfchires, thiit the union of ihi! four (;huri-h(>.s is to take place from tiie jiuhlit-ation of a not ire; in the Qurlm' (inzrffc, to the eflect, that the articles of union have Im'cu signed hy till! Moderators of the s;iid respective Churelies. Tliis (^U(il>ec Act has also a sciotion which, harndess in itself, i.s sugges- tive of the utmost confusion (»f ideas, 't is as follows : " In so I'lr iH if li;i-» iiiithi>rity to di hh, tlio Ln.dil.iluro * Hueli laws .s will reeo/nizi- and approvo of Hucli union throiiuhoiit and witliin tlieir r 'sp<-(!Mve juri^^dietions." The other of the Queliee .Acts (c. G4) can hardly he called i\n amond- ment of tlie former Act of the old Province of (!iinaila, f(»r it transfers almost the whole of the Temporalities Fund over t(t tlie new Chiinh, and confides its manapMuent to a Hoard constituted in a manner entirely different from the lioard under the old Act. The condition of tmion in (Ontario was accomplished, und the notice has ajijieared in the Qu'hec Officiid G'lzefte. The Appellant, a minister of the Presbyterian Church in Canada in connection with tlie Clmrch of Scotland, refused to concur in this fusion, and hi! jietitioiied for an injuncti(»n to i)rohil)it the Hoard as now con- stituted to deal with the Temporalities Fund. The Court below has diss(dved the injunction : hence this a]»peal. The statement in Kesitondent's factum, " that the petitioner and the seven ministers who continue with him outside the .said union have no right to continue the said Presbyterian Church of Canada iu connection with tiie Church of Scotland, and that in fact they are dis- sentients, V(duntarily separated from the said chargt;," is calculated to mislead. Whatever the lethal effect of the proceedings may l)e, whde congregations have voluntarily se])arated themselves from the s lid ('li'irch, if the eight ministers have not. liut whether the non-con- formists be 8 or 8,000 is of no importance, except for the purpose of sensation. The rights of the few are as sacred in the eye of the law as the rights of the many. As a fact, it is admitted that all the projx'rty and money of the Temporalities Fund is situated or invested in the Province of Quebec. The Respondents, relying on sub-section 13 of section 92 B. N. A. Act which gives legislative power to the Provincial Legislatures over " pro- perty and civil rights in the Province," contend that having full con- trol over all property, the Legislature of Quebec has full power to deal with all property which may exist in the Province of Quebec, and con- \% i 1' 254 B. N. A. ACT, 1 867 — SECT. 92, § 13, provincial lecislative power. sequeutly tliat it has the power to confiscate tlie funds of tlie Tres- byterian Itody .situate in the I'rovinoe ni' Quclu'c, and jncsent them to some oneelse, and tliat thi.s lias heen done. On the otlier hand, Apjud- lant contends that the Local i-t'^islature has no ri«>ht to incorporate any companies but those hiviuLj pr iviniual ol)jects (lb. sul)-s(!etion 11); that this is tantamount to sayiuij; tiiat the ri^'ht to inenrpdrate com- panies with other than local objects is exclusively reserved to the Dom- inion Parliament (sect. Dl, li. N. A. Act) ; that the Hoard of Manage- ment was an incorpt»ration for other than ])rovincial objects, and there- fore that it could imt have l)een created a corjxirate body by a local Act, and coiise(|uently that its act of incor[)oration cannot be altenid or amended by any Local Le<,nslature. I must confess that the .sections upon which the contendincr jiarties rely appear to me to be irreconcilable by themselves. If the local power to U'jUMslate over jmiperty and civil rights in the Province is to be interpreted to mean over " all" property, &c., then the power of Parlia- ment to incorporate is illn.sory. In jiractice it never has bcfui con- tended that pro])erty means all projterty. Railway companies incorpo- rated by Parliament, for instance, hold and maniij,'e their jtroperty under Dominion laws, and siu'h companies evict j)eople from their ])rivate property in each Province under Dominion laws. No one will venture to allirm that a loc.d .\ct could confiscate the property of a railway company incor|iorated by Parliament, or transfer it to another c(»m]»any ;.r i)erson. Ami so it has lieen decided in the case of Bouvgoinnnd The Q. M. 0. d' 0. linilwii/ Co. by the Privy Council (3rd Legal News, p. 18.')), that a railway with all its a|»purtenances, and all the property, liabilities, rights and ]towers of the e.\isting company, could not be con- veyed to the Qucdiec (Inveinmeut, and, through it, to a company M'ith a new title and a dilVercnt organization, without legislative authority, and that if the railway was a Federal railway, the Act authorizing the transfer must Ix; an .Vet of the Parliament of Canada. Nor, by ])arity of reasoning, could the L(»cal Legislature confiscate the sur[)lns funils of a bank on the pretext that it was property in the Province. It is im- possible to conceive more (»bvious limitations to the right to legislate as to projH'rty, than these. Again, we have had two decisions limiting the sub-section in ([uestion. In the case of EvatiH v. Ifiulon and Brovne, T. S., iMr. Justice Kainville held that a local Act was unconstitutional whi(di authorized the seizure by process of law of the salaries of federal officers (22 L. C. .L, p. 26H) and tlu; Court of Apjjcal in Ontario, in the case of Leprohon and The Corporation of Ottawa (2 Tupper, p. 522), n. N. A. ACT, 18G7— SECT. 92, § 13, provincial legislative rov»ER, 255 holtl, reversing; tho. judfjment of tlie Queen's Bench (40 U. C. R. 478), tliat nnilei- tlio B. N. A. Act, 1867, a rrnvinciiil Lofjislnture has no power to impose a tax n]»f)n the official income of an olHcer of the Pominion (iovernment, or to confer such a power on the municipali- ties. The.se decisions can only l)e ,sustaine(l nn the <,'roun(l that jiro- ])erty, in the sub-.section in f[ue.stion, does not include such property and civil rijijhts as are nece.s.sary to the existence of a Dominion object, to copy the i)hraseolo<,'y of the H. N. A. Act. It may, perhaps, be said that sec. 91, ss. 8, H. N. A. Act, s]iecially j^ives to the Federal Parlia- ment the power of fixin<^ the saliries ; but this does not seem to me to affect the question. After tlie salary has been fixed and is iHw.sessed by the individual, it becomes property in the Province. We arc, tliere- fore, obliged to sustain the jud<,nnent on .some other general principle which limits the effect of ss. 13, sec. 92 B. N. A. Act. On the other hand, we have a decision of Vice-Chancellor Blake, in the case of Cmuaa ami Wrhjld (23 Grant, Ch. Rep, p. Gl()), upholding the constitutionality of the Outario Act 38 Vic. cap. 75, exce|)t in so far as it attempted to deal with ])rf)perty in the Province of Quebec. This is, of course, a decision of tlu; ]>reci.se |)oint before us, and tliere- fore it becomes important to examine the grounds upon wliich it was rendered. It a[)pear3 to me that it is undeniable that the Local Legis- lature acting within the scope of its powers, has a right to legislate, as absolute as the Dominion Parliament legislating within the .scope of its powers. Indeed this doctrine as to the respedive ])owers of the Domi- nion and Local Legislatures seems to me to bs almost the only one on which there has l>een entire unanimity of opinion. But when, from this it is sought to glide to the conclusion that tie words of section 92 ore alone to be consiilered as defining the exclusive rights of the Local Legislatures, 1 think we arrive at a doctrine, opposed to positive law and to the authority not only of the Courts, but to the authority of l)iii(tiee. There is a sort of ffoating notio-., that, by the conjoint action of dif- ferent Legislatures, the incapacity of a Local Legislature to pass an Act may be in some sort extenuated. Section 15 of the 38 Vic, cap. (12 (Quebec), seems to have In^en added under the influence of such an idea. By it, the Dominion and Local Legislatures are permitted to recogni/e and approve. I cannot understand " ything more clear than this — that the Local Legi.slatures by corresjtoniling legislation cannot in any degree eidiirge the scope of their powers. When the question, is, between the authority of Parliament and that of a Local Legislature, the forbearing to 256 n. N. A. ACT, 18G7 — sect, 92, § 13, provincial legislative power. let^islate in a particular direction by Parlianient, may leave the field of local le}:;islation more unlimited. Thi.s is tlu* only l>earin<,' 1 can con- ceive the case of the Union St. Jacques and Bclide (20 L. C J. 29 ; 6 P. C. 81) can have on this cas(!. What the Privy Council held in that case, was, that a special Act for the relief of a corporate body did not fall within the nieaninj,' of " Hankruptcy ami Insolvency " (IJ. N. A. Act, sect. 91, ss. 21), anil this more particularly as there was no Dominion Act with which it interfered. It i.s, therefore, dead n<,Minst the ))reten- .sion of Kesjtondents in this case, for the levo- A. Act, HlfiMltT- rer buen livilway, y Dollli- Oiitario tUunc »m This is, riven free foniiiil lli.'Mi tlie exco]>tic)n from inc()r|»oratioii by local Act, of c()m]iaiiies haviii",' otlitM- than jtrovincial objects. I therefore think that the Act ptu'iiortin},' to create the body to be benefited by the transfer of the teniiioralities fund, is ultra virei^, in whole. I would therefore reverse, and Mr. Justice Tessier, I understand, concurs in the c(uiclusion at which I have arrived. McConl, J. It is unnecessary for nie to state the facts of this case ; they are fully set forth in the jirinted remarks of the learned .Judge who rendered the jtulj^Muent ajijieaied from. As t; the law of the case resulting,' from those facts, I am of opinion that the (Quebec Act, 38 Vie. chajt. 04, in so far as it alters the constitution, comjxtsition, and succession of the Uoaril for the management of the Temiuiralities Fimd is ilfra vii'cs. The Board in (juestion is a C-orporation created by the statute of the late Province of Canada (now the Provinces of Quebec and Ontario), 22 Vic. chaj). 66. It was created for the managenu'iit of a fund derived from, and exi.sting in, both Ontario and (Quebec, and belonging to a Church the territorial limits of which embraced both Provinces, and the government or synodical management of which, was not carried on in one Province only, but in both. This Corjtoration was not created for a "provincial (Quebec or Ontario) object," nor has it a pntvincial character. On the contrary, it was created in the interest and U>T the advantage of both I'roviiux'S. Being created for two Pro- vinces, and ajiplicable to them both, it can only be altered by a Parlia- ment having power to legislate for these two Provinces. The character or scope of this Corporation could not cease or change by reason of tilt' fund hapj)ening at any time to be inve.sted wholly in one of the I'rovincea, and of the place of busimsss of the Corporation being at tliat time within that Province. The Hoard could at any time remove its investments and its place of business to the other Province, and its powors (»f management were in i\o wise confined to either I'rovince. Tin; Corporation is not a nun-e accessory of the pro]>erty which it has to adiiiini-ster, and though the Provincial Legislature may control the " pru]ierty " within its linjits, and even the " rights " of the Corporation ill I'oiinection with that property, yet it cannctt alter the Corporation iistir. If the legislative control of the proj)erty carried with it the power t(» alter the Corpomtion, the conseijuence would be, that if, as may Ih^ the ease at any future time, one portion of the fund was iiivt'sted in Ontario and the other in Quebec, one Provincial Legislature I'ould enact that the (Jorporation should be composed of one set of .1 i ..I 258 B. N. A. ACT, 1807— SECT. 92, § 13, PROVINCIAL LEi;iSLATIVE POWER. persons and tlic otlier Legislaturo could ordain that it slioidd consist of anotlier set of nuMnbers, and tlio alwnvd conclusion would be, that there could he two lioards of Maiiajfcnicnt. It sctans to nic, thereforo, that the provisions of the Act, 22 Vie. chaji. GG, respoetinji; the composition and formation of the Hoard, havo not bt'on set aside by the (Quebec Act, ;'i8 Vie. clmp. (14, and are still in force ; for it is evident that they could not be set aside by the mere action of the Synod. Sir A. A. Dorion, C J. : — This is an extremely important case in which th(( A])p(dlant, by means of a writ of injunction, contests the ri<^ht of the Respondents to the management of a larj^e amount of pro))erty. It involves one of the most intricate questions arisiiifj out of the distribution untler "The British North America Act, 1867 " (commonly called The Confedera- tion Act) of the Legislative powers attril>uted to the Domini»m Tarlia- ment iiiid to the Local or Provincial Legislatures respectively. It is not sur]irising that diiliculties (tf this kind are reclining very frequently under (mrConstitutiitnal Act — I consider, however, that the Act is as clear as it could be made, to embrace so many (piestions in a small comjiass. The principal question presented in this case resolves itself into this. A certain society was incorporated under an Act of the (-Id nnited Province of Canada (22 Vict. cap. GG), and this society merged itself into a body embracing several churches of like doctrine — the mportaut inquiry is, whether it was the Legislature of the Dominion, ior of Quebec, that had authority to legislate on this question. The society was incorporated by an Act of the united Legislature of Upper and Lower Canada, and the (juestion submitted to the Court, is, as to whether the Legislature of the Province of Quebec has the power to amend, as regards that Province, an Act ])assed by the Parliament <>{ the late Province of Catiada — that is, of the then united Province <>f L'^pper and Lower Canada — entitled, "An Act to incor[torate the Board " of Management of the Temjioralities Fund of the Presbyterian Church " of Canada in connection with the Church of Scotland." It is strictly a (jnestion of law to be determined by the provisions of the British North America Act of 1867. I'he purpose of the amended Act, as its title indicates, was to incor- porate a religious body for the management of the tempor.alities of their Church, and that of the amending Acts 38 Vict. eh. 62 and 64, was to sanction the union, effected by the body so incorporated, with three POWKU. H. N. A. AfT, 1807 — SKfT. 92, § 13, PKOVINC'IAL LKGISLATIVE POWER. 259 t)nsist of lilt tlicre 22 Vic. ir»l, liiuo. 1 are si ill the im;xc ('ll:uit, l)y )n(lonts to res one of nUn "The Jonfedera- on ravlia- vt'ly. irving very er, that the ■stions in a itself iul(» of the old ety mev<^»'il ctrine — the l)(»minion, tion. The e of UvF' irt, is, as to u; power to rliaiaent "t rrovince of |e the Uoiinl iau C.'huTch prov isious las to incor- ties of their 64^ was to with three fitlicr n'lijfjoiis liodics, jiiitl to nicr^o into one fuml, the |iri»|KM'ty which hfliiiijit'tl to them rcsppclivcly at tlic liiiic (tf their iiiiiim or wliich th»'y iiiny iuM-ciifter aciiuiro; ami to in;ina;^ti it in liirlhenincc of the olij(;i-t of their institution. It is contended on liehalf of tlic Apiiellant, that the orii,'inal Act (if Incorjioration havin<,' heen juissed hy the I'arliaineiit ol' the late ridvince of Canada — now constituting' the rnniiices of Ontario and (ihiehec, — and its provisions extcndiiiLj to the two Provinces, this orij^'inal Act is heyond the control of the Legislatures of these Provinces acting' sejmrately; that the Lej,'islature of Quehcc could not touch an Act of the old Lej^'islature adectinji hofh Provinces, that is to say, that an Act not Provincial in its rdtject passed hefore Ciiurcdcration, cannot he touched, except, liy an Act of the Moini- niou Parliament. Put, was it ii(»t the fact that every day the Local Le<(islatur(^ was rejiealinjj whole liodies of laws, atl'ectinjj; hoth Provinces, which had been passed hefure the division of the old Province into (Quebec and Ontario ? To go n<» further th;in a case in this Court in February last, Mc('loliation. Tliat question, was decided by the Privy Council, in the case of Union Sf. Jiirijiit'H and Hrllsle. The I'nion was unable to ]>ay the stipulated annuities to nuMubers, and it got authority fnuu the Local Legislature to coniniute the payments for a fixed sum. The question was raised, wJH'ther the Province of Quebec could interfere with vested rights, and the Privy Council maintained the validity of the local Act. Here, the b'fiislature merely said to Mr. I)obie, if yon don't wish to do as the others have done, your rights shall not be interfered with. If you don't jiiin iheni, you .shall not be deprived of any right. The Legislatme of 200 It. N. A. ACT, 1807 — SKCT. 92, § 13, I'HUVINCIAL LKfilSLATlVF. I'OWEK. Quebec dill not touch any riglils whicli Mr. l)()l)io initilit liavo in the Provijice of Ontario ; if tlicy had done sn it would liuve been a dead letter, hut they expressly limited themselves to the jjroperty within this rrovinee. ]\y section 02 of the British North America Act of 1807, the le^n's- lative jiowers conferred exclusively ujton the Local Lej^'islatures are delined, and anion;^' them, are to he found at suh-section eleven (11), " 'i'he incoriMiiation of companies with Trovincial ohjects;" at suh-sec- tion thirteen (1 :>), " Property and Civil lli^'hts in the Province," and at suli-section sixteen (10), " Generally all nuitters of a merely local or ]irivate nature in the Province." An A(!t incorjtoratinji a reliji,'i(uis body for the ])ur)tose of ac(|uirii)j; property, and (»f mana^ini: it for the su]»])ort of their ministers, and of ediu-atiui,' youii<,' men for the nunistry, is umloubtedly, an Act confer- rin}^ a civil ri;j;ht, by givin*,' to the body so incorporated a civil sliifiu* vhich it had not before. When the powers imparted by such incor- poration a]>]ily to one Province only, the incor])orution is for Provin- cial ])ur]»oses, and its franchises can only be conferred, by the Le«fixla- ture of the Province where those franchises are to be exercised, and not by the Dominion Parliament. As regards the otiier Provinces of the Dominion, such a Corjioration has no rights in such other Provinces other than those which, according to the laws ni force in Ciuh Province, may be exercised by any Foreign Corporation. A religittus body so incorporated in one Province nn'ght, h(»wever, wish to extend its operations and seek to obtain the sanu; corporate rights in one or more of the other Provinces ; and, it can haidly be con- tested, each Local Legislature would have the same jiowcr t(t grant to a body already incorjiorated in one Province, the same franchises to be exercised within the limits of its own jurisdiction — and all the Local Legislatures might successively do the same. These corjiorate lights Would not cease to be civil rights, nor to have Provincial objects, for having been successively granted in more than one of the Provinces of the Dominion ; and the Dominion Parliament could not, therefore, claim to interfere and grant to a society incor]»orated in Quebi;c the same corjtorate rights iu Ontario, undei- the })retence that the society being already incorporated in tinebec, its operations would extend to more than one Province by the new Act of incorporation ; nor could the Dominion Parliament assume on the same ground to repeal or aiiu-nd an Act incorporating a society in one Province, with a view to extend its repealed or amended provisions to two or more of the Provinces. n. N. A. A( T, 18(i7 — SKCT. 92, § l:i, l'UOVIN .' i I 2G2 n. N. A. ACT, 18G7 — sect. 92, § 13, provincial lecislative power. But it is coiitoiuled that the Iiiiperial I'ailiaiiKMit havinj,' expressly exiluded by sub-sectiun ten, of section ninety-two (U2) of the Confeder- ation Act, from the jurisdiciion of tlie Local Legislatures, all " lines of " sleani or other ships, railways, canals, telegrajthsand other works and " undertakings connecting the I'roviiMte with any other or others of the " I'rovinces, or extending beyond the limits of the I'rovince," has shown its intention of conferring on the I'arliament of the J)ominiou powers of legislation on all matters alfeoting more than one I'rovincu. The inference 1 draw from this enactment is ([uite dilferent and adverse to the i)retensions of the Appellant. This sub-section ten (10) contains an exceptional disposition affecting Works and Undertakings — wliich could h.irdly create any irreconcilable s-ectional feeling and con- troversy — and which it was thought necessary, on account of their general importance, to submit to the contn^l of the D(tminion I'arlia- ment. The incorporati). There is therefore no more reason for saying that the Dominion Parliament can incorporate a religious society be- cause the promoters of the measure wish to extend its operations to two or more Provinces, than there would be for saying that it could declare that a corj»oration alreaily existing in one of the Provinces is for the advantage of two or more Provinces, and therefore subject to its legislative control. It is said, the Statutes now under consideration are not to create a new Corporation, but to alter the character and the conditions of an POWKR. I!. N. A. ACT, 1807 — SKCT. 92, § 13, I'UOVINCIAL LECISLATIVK I'UWKU. J 03 nit'cilor- liues of nks luul •3 of the ce," has )oiniiii<)" jvincu. ri'iit iiml U'U (10) ukin^'s— ami con- of tluiir ,11 railiiv- id in tliis i>n. xnd ol\n\r nmk'V tlie ■ouKl have III cunti'(»l. d to i>lace at foctling ub-scctioii oikrt ; that natii willi- liula, I'illiev 4c of Can- No svali ion falling ly i^xci'l"- innialtu in or saying lociety de- rations to it it coulil irovinces is jbject to its |to create a luma of an •'xistiiij^ Coriioratiou under a Statute passed l)y the Parliament of the lale rrovincc of Cainida, the provisions of wliicli applied iMpuiUy to the j'n.vinct's of Upper and of Lower Canada, and it is further arj^ued, that, the Local Legislature of the Province of tju(!l»ec havin;^ no right to repeal or alt(fr an Act alVeetinj,' the late I'ntvinei! of I'pper Canada, now constituting tlui Province (»f Ontario, the ajn(;ndnients jjassed by the Le;,'islature of (Quebec would have this ellet-t — that, a Corporation oriiiinally established for the two Provinces, under the sann; Act and the same rcf^ulations, would now be governed by dilTerent rules and even by diilerent I'>f)ards in each Province. Although this dilliculty catmot now arise, since we know that the Legislature of the Province of Ontario has also legislated to the same cfl'ect as that of the Province of Queboe, yet it must be admitted tliat such might have been the result of the amending At^ts, and we must l)e ]>re]iared to meet this apparent dilliculty. It will hardly he eonteutled that the Local Legislatures of the Pro- vinces (jf <)ntario and Quebec have not the ])ow('r to amenulished or altered by the Parliament of Canatla, or by tlm Legis- "laiureof the resju'ctive Pr(»vince, according to the authority ol' the " I'iiiliament or of that Legislature under this (the Confederation^ Act." We have seen that the authority to pass laws ndating to civil rights is in the Local Legislature. This section (129) therefore expre.ssly authorizes the Local Legislatures to repeal, abolish, or alter any Statute of the Province of Canada relating to civil rights in the Province to which these Legislatures respectively appertain. Tln! altering or repealing of such an Act by one Legislattire only, Wduld not alVectits operation in the other I'rovince, and taking the case of a Corporation like that of St. Andrew's Church, such a (,'orporatioii might continue to subsist in one Province ami cease in the other. Thi.s, luiwover, is a necessary conscjpience of the authority given to each Wal Legi.sli:.ture to deal exclusively with certain matters in relati(jn to their internal aflairs. If inconveniences should result from such an interpretation of the British North America Act, 1867, they are not to be compared to the anarchy which would be created by giving to the Local Legislatures the 2G4 n. N. A. ACT, 1807 — sect [\2, § 13, rnoviNciAt, i.fcislativk powek. ex(^liiHiv(^ luitliDiity t()l('«,'i.sliiti! ^(Micriilly "M nil ([ucstious nf (-ivil rij^lits, uiui liy n>tniuiiioiiiiiiioii to tlic siiiiic laws, or oxIcikI a Statute alnaily in lorcu in one I'lovince, to aiiotluT or to tliu wliolc Dominion. This would L>nal)l(> tliu dominion railiament to intort'yro in almost every subject matter of li'<,'islalion coiniiij,' witliiii the scope of the lejfislative jxiwers eonferred on the Local or Trovincial L«'<,'islatuivs. T' dominion Parliament would only have to declare that it was ex lo have the same laws in more than one of the I'ldvinces of tin? ])< -.loon, to «j;ive itsidf exclusive jurisdic- tion in such matters. There would, in that case, be two codes of laws relating,' to civil ri<,dits. The Provincial I.e;,'islature mi^dit for instance pass laws to prevent the a(^cumiilation of pro]ieity in the hands of jtrivate (.'orponuions as being contrary to jmlilic poIi(;y, and at the same time the railiament (tf Canada niiylit create new Corporations for civil ])urpos(!s, or amend the charters of existinj,' Corjxirations, and confer upon them the riyht to ac(|iiire and hold projcrty \n inortmahi to an unlimited extent. The residt being the most inextricaide confusion. After the most careful consideration I have been aide to give to this inip(»rlant cjise, 1 have come to the c(»nclusion that the Act, 'M Vict. ch. (54, to ameml the Art intituled, " An Act to incorjjorate the Board of Management of the Temporalities Fund of the Presbyterian Church in Canatla in connection with the Church of Scotland," is an Act aflecting the sfntiix, the projierty, and the civil rights of the corpora- tion, within tlu! Province of (^uciliec, and that, under sub-.sections 1 1 and I'A of .secti(»n 02 of the lirilish North America Act of 1807, these were within the scope of the legislative authority conferred on the Local Legislature of that Province ; that the fact that the Board was incorpo- rated by an Act passed by the Parliament of the late Province of Canada, or that the amended Act applied to the two Provinces of Upper and Lower Canada when the British North America Act was j)ass(!d, did not alter its charactt'r, nor subject the corporation to the control of the Parliament of Canada. I am therefore of opinion, with Mr. Justice Monk, of confirming the judgment rendered by the Court below, and as Mr. Justice McCord is also of opinion of confirming the judgment, although ou other grounds, the judgment will be confirmed. Ill n.wKU. li. N. A. \CT, lS(i7 — SK( r. 'J'2,^ l:i, I'ltuVlNCI.VL LEGISLATIVK POWKR. 265 1 linUts, li^lit to •milatt'tl r it WHS liiiidU to vince, to loiiiiiiion .rialiiliou lu! Local ultl only jnvistlio coilus of ) |ivt'V(nit latioii.s as liiiinont of inifiul U>« ,. viyht to cut. The to <;ivi' to le Act, ;w IK.mte the tcshytiiviiiu is an Act 10 coriioia- .i\s 1 1 and hi'se were the Local lis incoi'po- liovince of sof Ul '!'»!>■ [an i»a.ss('tl, ,he control |irniin<.' the iMcCorcl is Ir fjrounils, I may horo adii that the llonoraltlf Mr. Hlakc, wIumi Minister of .Tnstice, held, in a report to the I'rivy Uonncil that the two statutes |iass(Ml l>y tii(! I<('<;islatiir(^ of the Province (»f Ontario to make similar |)rovisions to tlmse citiitained in the A(;t now nnder consideration, were not innies. Cliimlit'ijiiin, on Insuinnt'c CirpKiiitiitiis i'l Cnitcil .Stales, gays (p. 2'M) : No national legislation has yet heen had regulating the right of insurance companies existing under the laws of one of the States to do luisiness in the other States, and no ease in which this precise (juestion was raised has heen carried to the Supreme Court (»f the I'nitjMl States. in the matter of Insuramte Cor{»orations, we find the State of .Vrk- iuisas a few years since i»assing a law which burdens State companies and extMujits those of England antl (lermany. If insurance comes fairly within the designation of the general word "rommt'rce," then it is clear that Congress would have the right to ivgulate the terms upon which insurance corporations may transact luisiness in a State other than that in which they are h)cated. As the ciiiiiiuerce of the world is carrieil on at this day, it cannot exist without insurance, and to render insurance safe, and (layment of losses prompt iiiul certain to the insured, it must be widely scattereil, and to secure a siillicii'iilly broad average to render the business safe to the insuring niipiiration, risks must bo scattered over a large extent of country. If this l)e true, and if the States .shall unwisely refuse to exercise a liberal roniity to these corporations, it may become imiM)rtant to their exist- ence and prospiu'ity that (.'ongress shall i)ass a general regulating law. By Art. 2470 of the Civil Code of the Province of t^uebcc, Marine Insurance is always a commercial contract ; other insurances are not l>y their nature commercial, but th^v are so when made for a premium ^ ■ 260 n. X. A. APT, 1807 — sect. !)2, § 1:?, pkovixcial f.eoisi.ativf, powkr. by j>ersoiiH ciirryiii^' dii tlui hiniiit'ss of insurers, sultjeot to the excep- tion contained in the next folli)\viiii,jh V. I!»i/<,1 Miitit il Ftn Int. Co. (44 V. C. Q. B , ^^S). Armour J., nu'ul: iV'forf the passin;,' of tlie Act, K. S. Ont., cli. ll'.L', insurance cnni- IKinies couM endorse just such conditions as tht-y jdeased upon their |xilifics, whetlier such conditions were rensonalile or unreasMnalilc, and some insurance coin])anies carried their power in this resnect to such an extent that they en(h»rsed conditidus upnn tlieir jtolicies of such a character that no |H'rson insiin-d c 'Id comply with them ; and whether they wouM pay a just chiiin or not was a matter entindy ;it tlicir option, for it couM not he recovered if they resisted it. 'I'hcivupon every j»erson Jiepin to call iijion tlie I.«';,'ishiture to interfer*' to put a stop to such injustice, and no one called so loinlly as the judj^i's, Tht! I>'^islature, yicddini^ to this very jinipcr appcil niadr to tlieiii, passed thi.s Act, entilliu}^ it " An Act to secure uniform conditions in policies of fire insuranc(!," and provided that certain eoiiditinns therein set forth, and railed statutory conditions, should he printed on every policy, antl gave the insurers power to vary, omit, or add to such cttn iiliuus, Init only in the mode prescrihed i»y the Act. In Dxir V. WvKhni AnKKnuirr (\>. (41 I'. C, Q.H.. 5«;2) : r>y a Statute of the I'rovinoe of Ontario CM Vic. ch. t)5) it is jiro- vided that, where in certain cast's " the conditions of any contract of fire insurance on pruperty in this Province, as to the proof to he <,'ivcii to the insurani'c company after the occurrenc«' of a fire have not heen strictly complied with," no ohjection to the sutliciency of such jiroof .shall in any of such cases he allowed as a dischar e of the liability uf the ci'Uipany on such contract. Held: That this enactment was not lieyond the |iower of the rrovincial Legislature, and ajiplied to the Company, defendant, although incor- porated under a Dominion Statute. That such le,L,'islation was not an encroachment on the powers of the Dominion TarlianKMit, as it was a matter relating to" property and civil rights in the I'rovince," aiul also a niatterof a hjcal and private nature, I Inch V. Tin' Aotiomil Jiisiirana- Co. (42 U. C, Q. B., 159), Was an action on a fire insurance ]M»licy in which the Company, defendant, pleadeil the breach of certain conditions of the jolicy. The plaintitf, for replication alleged that the said conditions were I >*^ rowKR. 3 exoop- Ainiour in-e rnin- .nti their able, iillil ■( tn such of nUl'll 'A \ wlirilicr V lit their rhfV.'Hi»)i» ■H to l'>'' 'I ^'I'S. Til.'. ■ Ill, jnissiid ill |i(»lifii'« I set forth, |...h<'y, ami liti.ius, l»iit ) it is i>ro- ciiiitriicl (if I) he ^'iven e not ht't'ii [such I'roi'f liaViihty of rroviiu'ial luMi incor- kvers of the ly iiutl civil lite nature. Comiiany, licy. litions were n X. A. ACT, 1S('i7--si:(;t. •.•!', 5$ i:5, i-uovincia?, lkcislativk powku. 2G7 not ill coiifitriiiity with iiiiy of the Stutiitoiy enmlitiniis provitlcil for in llie Ontario Statute .'VJ \'ie.t. c. 24. Tlie h('atioii. Held, tliat the defendants, iiut\vitlistandiii<^' tlieir iiieor|M)ratioii hy the L('j,'ishUure of the 1 inminioii, are, wlieii tloinj,' hiisiiiess in the I'rnviiife of Ontario, suhjeet us r(^;,'rtrds hw\\ husiness to tlie I*roviiicial Statute, .'19 Vict. eh. 24, |. d for the iiiirpose of settlin*,' hy h';,'ishitive dri'liiratioii the eondilioits '^vhicii "shall as against tiie insurers he (Itrined to In; part of every jwdiey of fire iiisuianee hereafter entered into or renewed, or otherwise in force in ( hitario with i\'S|>ect to any liro|terty therein." /'iii'HiniH \'. Till' t'itizniH Iiisiiniiiff Cii., 4'.\ n. ('., t^. B., 2G1, Ilar:i>'>ii, ('. J., mill Ariiioiir. J., ( itlii il 4 Out A|ip. 9'!). Hehl, following riiirh v. Xufhnnil Iiim. Co. (42 U. ('., Q. B., 2»)1) and Firy v. WeU'nnjtmi ('oinitif Muhiiil liisin'nuce Co. (4li IT. C, (^. !>., l'.>2) : That a i>oliey of insurance issued hy the defendant (in- cori'oiated niicU'r a I)oniininn Aet) to the plaintilT, not containini: the cdiuliiions iei|uired l»y the Ontario Act, ;>'.• Vict. e. 24, is to he (k'enied as aj^aiiist the insurer as a jioliry issued without conditions, conse- quences which tlie Statuti^ itself ini[i()ses for u non-coinidiance with its jiiovisioii.s. Hiiirisnn, Ch. J., in ilelivpriii'^ llie julfimt'iit (il'tlit' Conrt ol' Q. B., said : Now, the iini>ortant (luestioii is, whether the Le^'islature of Ontario had jiower to i»a.s.s an Act .so <,'eneral and so coin|»rehen.sive in its terms as the :i9 Vic. cli. 24. For the powers of the 11oniinidies, this, undcrsuch a. scu-tion, excludes the other from the exercise; of the power. in liohcrfsoii v. Sh'<(il imi ii (.'i I'u^'s. OlM), '.he Supreme ("durt of X. II, a|tpar'.'ntly nsad section \)'l as folliiws : " In each l'rovinatie)n eif the; <'or|Miration there' .shoulel be; eietlaii.i US to the form eif the eemti'acts which the cre-ated body may uml.J. The; pe)wer ofan artifie-ial beidy to e-onfract, must, on well unelorstooel ))riiu;i|iles ejf law as re-garels the; form ol' the evintract, like the; pe»we;r of a natural pe'rse)n to e-onlract, be sultje;ct te» the; laws of the country, pro- vince, or place where the cemtract is made )WKB. to bo iliirod ,f the l»jl'('tS class joii of .tw«u'.n ;clutU'H til until' Lion 92 \iihjerJx rrhf to usivcly juhjiicts a Hiiti«- ^tidll 'Jl 111(1 it is Iwhilt' ill i(i)/«'.s of ^isliitivc LTiiion JUT Sir Itli ollnv l)M fitlltT Irislatmc. ir Lc^'is- ■> slioiiM Itly limy IdorstotJtl |)(»wi',r of try, pro- B. N. A. ACT, 1HG7 — SECT. 02, § 13, I'UUVINCIAL LKOISLATIVK I'OWKU. 209 A Coriioiatidii am exist only williiii the limits of the sovereignty which eiciileil it, but it may aet elsewhere thi'oiij,'h at,'ents, if tlu; laws of other comitrics |iermit. (I'ank «»f Augusta v. Karle, l.*{ Peters ol',).) 'J'he Natiuiiiil Insurance ( 'oinpany, as a ( 'or]»oratii»iiowes its being to th(! Legislature o'lhe dominion. That Lt^gislature, when giving it l)eing, not only gave it |ii!r|tetual succession, hut power to conlracit for insur- ance against Imss or damage iiy lire; but, the furm of the contract, and the rights i»f the parlies thereiiinh!!, must, we think, depend upon the laws of the country or jtidvinc(! in which the business is d(»ne. In this res])eet the defendants are in no l)(ftter or worse condition than a foreign Corporation doing business in the Province of Ontario. {HowcMavMue Co. v. Walker, 3r> V^A)., Q. li., 37) Farmiks V. The i^urin hmininct Co. (43 U. C, Q. B., 271), affirinwl 4 Out. Ay\u 109. Tliis case arose ujton a contract of insurance similar to the jmiced- ing one of PavHonn v. The, (fitizeux InHuranee To., the Ontario Court of Apjteal allirming the judgment of the Qiujen's I?(Mi(^h, and holding that the (leftMidants could not re.sort to their own cctiiditions nor to the statu- tory ('conditions, as tlu^y W(>re not printed on th(^ p(»licv as recjuired by the Ontario Statute; that the Ontario Statute was not nlfrti I'lrrn, as the Legislature of Ontario had ])ower to deal with an Insurance Coinjiany incorporated by the Dominion Parliament in reference to insiiranijes elfected in Ontario; and holding that jxdicies of insurance are not transactions coming within the words "Trade and (Commerce," and so within tlu! exclusive jurisdiction of the Dominion Parliament. That policies of insurance, lieing mere c<»ntra(rts of indemnity against loss by firi!, an; like any other personal ccfiitracts l)etween ]>arties governed by tlut Local <»r Provincial law. That th(! Provincial Legislature has the powijr to regulate the legal incidents of c<. tracts to Im enfonied within its Courts, and to prescribe the terms iijion whuih corporations, either foreigner domestic, KJiall be pitrmitted to transact insurance business within the limits of the Province (adopti!:g the reasoning in Paul v. Virgin id, H Wall, KiS). The juilgiiKMits ill \]u'Ha cam'H of T/ie Qui r a In»iiraiici- (%t. und /*'//•«««« .iiid Thf ('tti-'.eni Intiirnnrc ('o. and Parmtut, on Appual, were coiifiniiod by the i^uprcme Court rCuii.) 2Lst Juiic, IHhO. Fournicr, J., concurring In the dismissal of the appeals, .stated the facts as follow."? : The ])rinci])al (piestion to l>o decided in these cases is w lether the Ontario Act, 39 Vic. ch. 24 (now ch. 1G2 of the KevLsed Statutes of 270 It. N. A. ACT, lHr.7 — HKtrr. WL', § \'^, PUOVINCIAI, LKCISI.ATIVK IMiWKIt. ' mS 1^ i- (Intui'ii),) "an Act to st'i-iiii' iiiiirnriii coinlitiiiiis in |.ulifi(-s of lir*> iiisiir- aurt'," '\H iiifni rirrn of tli*> (Mit^irio I,c;^i.sliitiirc. Its cfdisliliitiuualily is (|ii<>stiiiiicil nti till! ^roiiixl lliiit tin; |t«i\V(!r of I(';,'isliitiii;,' in n-ftTfUius to (III- siiliii-ct iii!itt«^r of insiiniiicu Itrlon^s to tin' iMMlt'i'.il l'iirliain<-iit, as tho iKTcssat-y H<'(|iiciir(i of its cxcliiMivu powitr to rc;riilatu tratli; and ruiiiiiM'iTi'. (Sci't. !>2, § li). In Older to ascnlain wlniiicr tlu-rc is a funllict of powers, the lirst Kte|i, no (IomI)I, is to examine the cliaracler of the law in t|iiestion. As may lio HiiiMi from its title, (he olijiM-t of the Aet is to He(;iii'L> nnifoi'in coiulitioiis in policies ol tire insiiranee. Tlir stteonil section enacts, that if the coiKlitioiis of (he coiidacl of iiisiiran(M- have not heeii s(rii;(ly eoiiiplieil widi, it shall not he a siillicieiit reason to annul the contract. First, where, hy reason of necessity, acciileiil or iiii.^taUe, tli(f eoiiilitioiis have not he«'n complied with; secondly, where, after proof of loss has been ;,'iven in accordance with the coiitlitioiis of the contract, the ( 'oiii- jiaiiy olijects (o the loss upon other ^^roiinds than for imperfect coiiipli- iiiice will, such loiidilions ; thirdly, where, after liaviii;^' receivtMl this proof, the ( 'iiiiipiiiiy docs imt iiolijy in writing,' to the assured, within ft I'easoiiahle time, the reason for wlinh the ('oinpaiiy considers I In- proof defective ; fourthly, when the Court or .liid^'i- for any otlnr r-a- Kon (-oiisiders it iiiei|iiitali|e that (he instirainc shoiihl he deemed void hy reason of imperfect (-oinpliaiice with siich conditions. The ihiid section de(-lares ilml tlir voilil'illnns Nit f'ni'lk ill till' Hrliiiliili! In flir Ail uliiill, UK iiijiii iisl IIh' iiiHiiiTrM, ln> ili'iiiii'l III In' jiiirt o/rrrfif luil'ii'ii nj fi I'r I ii'^ii I'liiii'i', ii'illi ri's/ti-il In II II If jH'iiiiri'lif siliiiili' in llii' I'mi'mn: ii/Diiliii'in. These conditions must also he printed on the policy of insiir- mice, with (he lieadin«,' "Sla(ii(ory ( 'ondi(ioiH." The foiirdi st-dioii indii-ii(es (he maimer in which (he condi(ions may he varied or oinided, or new conditions added hy heiii;,' printed in a parlii-nlar way. Tho tiflli Hci-tion declares that the variations shall not he hiiidiiiL; on the jiMsiired nnh'ss they have hi-en made in conformity with the fourth Hci-lion. If (he (-oiidary is ilone, the policy shall, as against the assurers, lir xnhjii'l In llie Mliihilui'if finnlilloiiH oiifif. \\\ the six(h section, it is declareil (hat if any other i-onditions than tin* statutory i-oiidilions arc iiiserh-d ill the poli(-y, and that the .Iiid^e of llie ( 'oiiit declares (hat they are no( iiis( and reasoiiaiile, (hat siidi i-ondi(ioiis shall he null and Void. The seventh siu-tioii iiUou.s an ap|H'al from iiiiy ducittiuii givuii under (he A(^t. Ta.schereau, .1., iliMHt'nlipnte, said: I do not coiicr in tliu jiKl^ineiit of tliu (7ourt in thusu chhoh, und I jtroi-eiid to stale the grounds upon which I ilissent ; — WKH. insnr- iiii lllUin, It; iliul II. '^^ miruvin is, lluit stri<-l'y Mlltlllfl. ii'litiniis loss Ims 1,,' r.mi- )1U1'11- V»'i \, williiii (ill. r r- ii- iiii'il viiiil riif tlii"! „ Ihr A'l .,.»/(■'■// ",/ /'I'OI'MM''' ui'insiir- III scftinll • t»inilt<"l, |). I -I, lKr»rij, iis llic ( !iiiiiiil;i .Miiriiir 1 iisuriiiiiic < "itin|tiiny, liiliT, iiiitlur L'7 iinil lis \"u'.. ciip. \)H, iSiU, ;is 111' (Jilizt'in' liminuiri' ami liivfst- nxMil < 'uiii|i:inv, iiini now, iiiidnr iis |ii't>.s"iii niiii", liv an Act, of t.lii> Dominion I'arliuincnl, 'M Vic. v;i\\. '>'> (IS7<);, Ims olitaintMl frotii llii! F(!ilt'ral uiilliorily, liy lliis last, statiii'', IIp- ii'.;lit lo inaku ami <'n'i'('t, non- trai'ts of insiiraiici' ii|toii sin-Ji roiidil ions, and iind r such nKKJiticatioiis and ifstiicliuiis, as iiiiL;lil In- Itar^'iiii'd or a.i,MiM'i| upon Ity and Im'Iwci'Ii till' ('oiii|iaiiy and iIm; |HTsons conliai-.liiig with tlitMii I'oi- .siicli insnr- iUlccs. Hy flia|it»ir 1«'»L' of its l!>'visi'd Statutes, tin- ( >iilario L(';^»islat iirf lias virtually revoked this power which tliis ( 'iiin|taiiy held IVoiii the l-'ederal anlhorily, and repealed the enu<:tnient, of the I >niiiiiiiiin .\ct under wliicli the said <'oin|)any hehl this power, — (or a law repii;,'nant to another as entirely repeals that other, as if expn^ss teriiH of repeal were used. Had the (hitario I!) \'ic. cap, o.*), under which the ( 'omp.iny .Appellant claims i]w ri^lit to issue it policies under such, iniidil ions as they please.' For it must, he ad:ii;t!e(I that, under the Ihiiish North Aiiieriea Act, there can he no cuiiciirrent jurisdiction in the matter hetweeii the Federal and the Local l,e-;islativ">'.) \'ic. cap. 0."), the Local Le^'islat lire had not llic power to revnkr this anlhori/.ation or to repeal the said .\i I. It woiilil Im! II stnin;,'o .stuto of thing's if the Local Le^^fislalnres could repeal an .\cl passeil hy thi' Dominion rarliainetit. They cannot, do it eithi>r expressly or impliedly. Tlury cannot hy their leoislatioii render nu^'a- tiiiy the enactments of the Federal Lej,'islative power oii siilijeils lift miller the control of the same Feileial Le;^isiative power liy the British North Aniericii Act. .\ie th(!Hn Mtatiites — tins Fetlerul Act, creiitin^' the (loinpaiiy Appel- lunt, and thn Ontario Act itn|Hisin^ conditions on its iiolicics of insur- ance — regulations of trade iiiul coniinerei! ? If they are, the Fed«'ral Act is constitutional ami the Ontario Act iinconslitulioniil. l>oth thest; Hlatiites lire reoulations of commercial corporations and coninierciul operations, and the wi lids "reoiilation of trade and coinnierc(; " in section '.»! of the IJritish North Aineriiui Act mean — all iv'Milation.s of Hi •:(• 't* .P •. \ 272 H. N. A. ACT, 1HC7 — SECT. 92, (J 1 !{, PROVINCIAL LKCMSLATIVK FOWKK. all tlu! bniiK'lics of trade! aniii|iaiii('s dciiii^' IIk; buHJiifss oi' iiiMiraiici;, ant (■iiiiiiiM'ii-ial ('niii|ianic.M, and tla-ir ii|M-iati<)ns \i\v. of a cniiiiiificial natui't*. In (iix^ of tlitt I'roviiircs (Qnclii-c) so far Itack as lS4r», loii;^ Itclnn! tin* < 'i\ il Codi-, tin; Odiiit of t^iuinii's Hciicli, ill Moiidt'id, ('(iiii|tiist'd oT N'iillit'iv, jinllaiid and l)ay, .1. .1 , in a cast; of Siiiilh V. Inliir, rf|i(iH('d at |»aj^(i 47 of tin; fir.Ht v«)luimj of tin- limie ilv Li'iiisliiliiiii, Ill-Id lliat till! insiirin<^ iif^ainst liit! l>y an Iiisniana; ('oni|iany is a •■fiinnu'K'ial tninsardon — so it is lndd to Im! in Kran<'«5. J{oiidoiisi|iii<', Traitt' dc rAssmaiKM', No. 70 and 'M\ ; I)alloz, Actes do Coinnu'n'o, No. 2K1; 2 rardcssiis l)roit (Joni!ii(>n;iaI, No fiKH ; Dalioz Diction. V(i. .As.siirancc Tcrntstrc, Nos. Ill, 20 and 22. In Prussia, iMlo a ('(tniiiM'nial contract. Why should it Ik; considcfrcd otherwise in Kn|,danllnfli'n ('oituftiei'tr'uii Dii'lion- ai\i/, thesi! (roiii panics and their contracts are treated of, as falling' under the coniniercial operations and tin; coniniercial law of Kn;^land. In Stephens' (y'oninientaries. Vol. 2, p. 127, an insurer is spoken of as a jiarty " carryinj^ on " a ^eiii'ial frwie or " hnsiness of insurance." In Leris' Mfiniiiil >>/ Mi'irnnfile Liiii', para<^rapli !?0, .loint Stotik C'oinpanit's an* said to he under tlu; (>oninier<;ial Law of Kn<.,dand, and al8U lit jiara^niph 2M(i, these Insurant; ('oinpanies are said to )><; with- in the iMercNinlile Law. So in Siiilth's Mn'aiiifih- Ar/vaiid in Chit- ty's doiuiiierrial ami (li'in-rnl Ltni'i/rr. And Lord Maiistield, in (Jarter vs. I'oehni, .") Iiurr, I, '.)()"», .says that *' Insurance is a contract upon speciilatinii." This case it must he remarked was tried hefore a special jury of incri;haiifs,y{>i it was not a ca.se of niaritina; insuran<« '. I really mnnot .si'e on what {^rounds under the Kurdish Law, a Kirc Insurance donipan}' can he .said to he a non-commenMal corporation. It is comiiKtrcial, it seitms to inu, for tho same reasons that make it ao in FraiKic and in tlat rest of Kiirope, that is to say, hecau.so it is a (.'om- ])any doin<{ the hiisinttss of s|)(M'.ulalion on risks and ha/.ards, U'cau-ic it trades on its contrads of indemnity — heciiu.se it does tho hiisin(!ss of selling that indemnity. It is as commercial as the contract of mari- II. N. A. Arr, iHO?— sKcr. 9L', § IM, i-kovixciai. i.kcihi.ativi; i-owKit. 273 n-tation (•rations i;) MO lav I casr of .• Hrriie Kraiice. A(t«'s cliaractt'r of wliirli aati(in, <-nii>loynM'nt or Inisincss carriMl on lor ;;aiii or prolit. (AhlmU's Lair hiiliiiiniri/, I ST'.', v. Ti'inlv. Also, I IfiiliiH's, ;{().) In i\u> rnili-il Slatfs, as in Kn^land, this seems uneon- trovcrteil. Ill AiK/i'll ,t- A iiirs on, dor/nn'alions^ insurane.(- e(»iii|ianies are classefl ani(tn«,' <;oniin(tr<;iul eorporalioiis. In J'tirxnn's Sh'rniiillle L and liri/n nl i(: Sti'ittfmi'H (\tmineir'ntl Law, tin; insurant-)^ is treat- ed of, as foriiiin},' part of tli(! coinniercial law. In llie (.'ivilCode of Louisiana, iIh! eonlract of insnranee was entirely left out, to form |iart of liie ( 'dde (tf (Jniumere.e, wliieii it was then intended to |iromnl;,'ate. Hut <,'reat stress is laid on the deeision of the Su|ireme Court of tlu; I'nitiMl States in /'(hJ V. Vlr;/inia(H Wnllare, lOHj, where Kield, .1., said, tiiat issuin;^ a |)oliey nf insurunci; is not u transadion of eominenu'. This ease is not hindin;^' on this Court ; and a referencM; to the report shews that this is an ohUf.r tlU'tiiin of Mr. .lustiet; Kield, and that the j^ist of the decision in tliat ease, is, merely, that insurance liusiness done hy a New York Company, in the State of Vir^dnia, d(»es not fall witliin Uh' nieanin;^' of the (dausti of the constitution, which declares tlint Con- gress shall have power to re^'ulate (tommer ■• with forei<;n nations, and aiuon^ the several Stales. Mr. .lust ice i'lidd him.self, in Piiinmuda Trh-i/ra/ili Cn. v. \Vrst«-ni Trlfifnijih O'. C'.tfi l/\ H. *J), explained what lie saiti in J^tiiil v. Viri/iiila, as follows : — " In other v»'ords, tin; ('oiirt held that the power of Conjrress to re^^ulate commerce was not allected iiy the fact that such cnninudcc! was caiiied on l>y corporations, hut that a contra(*t of insurance niad); hy a Corporation of one State upon propetty in another Slate was not a Iransactioii of inter-statt; (com- merce. I'l Would liav(! l»een outside of the caxe for lliu (Joint to hav« (i.xpressed nil opinion as to the power of ('oii;,'ress to aulhori/e a fi)rei|.ii Corporation to do iiusiiies.s in a State, U|Hin the assiimption (hut issuin„' a policy of insurance was a c<»mmercial tiiin,sa«'li"n." So the casi; of I'o.ul v. Virifi n in, hi\H no appli(!atioii whatever here. The relative positions of the Parliament of the hoini ion of Canada, and the l,f;^'islatures of the various Provinces, are »o entirely dilferent from tliiise of Con)rres.s and the L'f,'islatiireH of the several SUites, llmt (ill decisions from the I'nitecl States Snpreiiie Court, tlioiij^h certainly always entitled to j^reat consideration, mii.st lie referred to here with great i-aution. There, the right to regulate ajmuierce in the State is 274 II. N. A. ACT, 1807 — SKCT. ill', {|j i;>, ntOVINCIAI, LEGISLATIVE roVVKR. tf ■'«?, *i! S:J| V given to tho 8tatf, n(»t fn tlic KiMioral power. Here, as said Ity ^fr. Justic(( Struni,', in Sfirrii v. (lie Qiit't-n ('2 ('hd. Si(i)r. dxtrf lii-porfu, 2^('tjf ln4) : " Tliiif (li(^ leu'iiliitinii (»r timli' mill cuiuiiieret! ni the I'ro- viiiccs, (luiiiestic iinil internal, as well as fuieinn and external, is liy tlio liritisii Niirlli Anii'ricii Act eon (erred nimii tin; Tarlianient nl' tiie l)oni- iuiiin, calls for un denionstrati(»n, lor tlu; lan<,'na«,'e <»f .he Act is explicit. " In til" I'nited States Const itntion, the word "conunerco" oidy if. used ; onrs has the words " (nule and coninn>ree." Some law diction- aries j,'ive the word " trade" us nieaninj,' "internal commerce," whilst the word commerce woidd rel'er to foreij,'!! interconrse. iWit thi.s appears to 1»(^ a raiicilnl distinction, not recoe;iii/ed either in common jiarlance or in leu'id lan^'iiaj,'e. In either one or the other, the expressions: "the trade with the West Indies, with the I'nited Stattjs . . . the for- ei;.r!i trade," S'r., are of every- !uy u.se, and, therefore, in the interpreta- tion of the Imperial Act, we coidd not hold, it siu^ms to tm;, that the Word "trade" has lieen added to the word " commerce " aimjily to jnean " inti'rnal commerce." Leav.nj; it ont of the Act, the internal com- nu-rce of the l>onnnion wonld remain as it is; nnder the control of the Federal power. Kv»'ry word of the Act must have its due force and a]>|>ropriale meanin*.', and tlu^ Imperial I'arliament, which, no doid)t, whilst crciUinji a Federal union amone; its North America?! possessions, had before its eyes the Con.stittition of the I'nited Slates, mnst have intended liy addiiij^ this word " trade " to the word "commerce " to j,'ive to our Feileral anthority supreme power, not otdy, over the c(»mmerce, interna! as well as external, but also over the tradt; of the whole I)om- inioii, internal as well as external. To revi-rt to the case of J'tinl V. \"n'i/i iiiii, {\h' iiliifci' diet II III i>i' Mr. .Inslice Kitdd '' that issuini,' a policy of insurance is not iv transaction of commerce," seems nothinjj Itni a truism. In the same sense, making a contract of .sale is not a transaction of commtirce. It is the fact of a jierson or corporation niakin;^' a hnsiness of s(dlinti and Itnyimr, or of issninliii' iiicssaj,'<'s have iiotliiiij^ to ilu with (•(ii.iiiii'icc at till. {Western L'liinn Tiln/nijih Co. v. At- tn nlir II ml I'lirlfii' SI(iti'KTclci/riii»h Co., •'» AVr. ll)"_' ; I'riisitmlit Tcle- ijiii/'li Co. V. ]\'i'shrn Un'wii Tt'h'ijru i>h C<>., '.'«• I'. S. 1.) With iis, nil the saiiu' |(ri!ic.i|il(>, t('l»'<,na|»li lnisiii('.«<.s wciultl (il.so lu' exclusively under Federal eniitntl, if the Ui'iti>h North Ameri-n Act did not e.\- jiiessly Vest ill the Local Leifislaliiii's the eoiitrul over Ictcal and pro- vincial liii's — so lnn;4 as the Ivder.il r.irlianient does not declare them to he for the j^eneral advantai^e of Canada. A«.jaiiist the decision of rnnl v. Vivif'mia, in tlu; Tnited Stales, a decision in oiir own Courts can Iki citi'd ; Atforney (rfiiirnl v T/ie Qiiirii l/isiinnin- Co. (21 L. C.d. 77; 22 L. C. .1. 'M)l), in which Mr. Justice Torranct! in the Sniierior Covrt in Montreal, and the live .jiid]i,'e.s of the Court of Appeal, inianinioiisly ;:ehl, that a licen.se ta.\ on i>iiliflt:s (»f insiiiance was a rei^iilation «if tral Inuli? ])revi()usly done l»y the tranr- Illi'lll of :iiiit the le. In- [ on the :;i Vic. lid it has I theit'on 54 & 55. lice Coin- Vic. eh. on rarha- nil innur- lUrtint'HS, lliirty-nue jf roll ml M 1 S79, 8ec- I Railway tfiiiinlians, ct anil still II property »>lvo years onal. I»- lifrht 1)0 in he United ita juriailio- II. N. A. At r, laCiT — SKCT. 92, § lo, I'UOVINl'UL LKGIHLATIVK I'OWKU. 277 lion ovur .;ivil ri^'lits nn»l contracts. It luivin^j Iuumi scltlcil, for instance, liv jtidicial construction, that naviijititin was umler Fctlcial contnd, Congress lias enacted laws rcf^'iilatin^ the form uniir|iort('il to iiicoipoiatc a coiiiiiiiiiy of tt-aclii'i's for lln! 1 )omi- niou. aiitl «'oiis»'(Hi('iitly, as such, iiifriiij,'iMl on tli«? powtTs of the I'ro- viiicial li<';,'islatnr«'s, in wliich is vostod, hy section Uli of the British North America Art, llin I'xrlnsivu control over Kiliicalion, aii Provincial Legislatures couM thus have it in their power to imjiede, impair, ohstruut, and even ilefeat the enactments of the Federal authority. The laws pntinulgated hy thu Dominion — hy the F'edenil I'arlia- nient — under the provisions of tlm Imperial Act, must have their full 8way from the Atlantic! to the? Pacific, unrestraine(| hy any other legidalive IhmIv ; free from provincial control, without hindrance fniiii ])rovinciaI legislation. On the appli«Mtioii of this rule rests entirely for oiir country the safe-guarils against clashing legislation ; against concurrent jurisdiction; against interf(!ring jiowiu-s ; against the repugnancy hetween the right in one ( Joverninent to pull down what there is an acknowledged right in another to build up; against the incompatihility of the right in one Uovernment to destroy what it is 'OWKU. of tlio I l)(»mi- Uritisli iin.l ll>« iTiiiiin'Ht II. Ami i-nt (•••»ii''l»'. |„. Ve«l»'vnl L\ r.ivlm- 1. tbiiiv t'liU liny «'>li^'>' Inmcti tVoiu Is I'Utirj'ly In ; a-iiiii'^^- Ifiiin-^l '"^ bown wliiit Imiinst the wbat it is II. N. A. ACT, IM('(7 — SECT. !•:!, 55 l;{, I'UoVISCIAL I,»}ISI,ATIVK I'dWKU. L'71) ihf ri^lit in iiiiothfr to im'si-rvt! {Mi'i'nlUn'U v. Mxriflii mf ). Tlio I'uiirt of ApiMMl of Ontario pics so I'ar us to say tliat an insnnnuu) company, cicatcil und antbori/rd by tlif Dominion of <'anao entirely usidcss and uiisiisceptibh^ of any practical elfect f '1 he Coiistitntional Act does Hot bear an interpretation leadin;{ to such anomalous eonHei|nence8 ; the powers of the Pedt'ial authority cannot, to such an extent, it« dependent upon lint eoiisentand piod-wdl of the Provincial authorities. It is of lh(! Very e.sseiict! of supreiuai'y, lo remove all obstacles to its ai'tioii within its own sphere, and so to modify every powt-r vested in >uiMirdinate ;,'overnnients as to exempt its own operations from their iiilluence, and it cannot be, that the Iramers of our constitiitinn who ileteriniiied lo ^dve to the Central power of this Dominion the supremacy and .sliHuij^lh, which, in the hour of trial were found to Im' Mil much wanlin},' in the Federal power of the United States, have thus ^ivcii to a Province, or to all the Provinces uniting in a common K'j,'i.>laliou, thir power to aiiuihilatt! — either directly or indirectly — the corpiiration which the central power is authoriztMl by the A(a to cicite ; it cannot I; , that they have thus reudi-red iiievitalde in this Dom- inion, that conllicl of powers under which u fcdemtiuii niudt always, sooner or later, crumble and break down. These companies cannot be controlled and governed by as many /A *^ 3' ^ V' '^i y V V 5> ^ I ip u;, ^ k 280 B. N. A. ACT, 18G7 — SECT. 92, § 13, PROVINCIAL LEGISLATIVE POWER. merce were tiot uniform all through the Doiuinion- -if the Provincial Legislatures had the jjower to tamper with the grants and privileges conferred by the Federal authority on the trading and commercial bodies authorized to do business in this country. I have not lost sight of certain enactments of the Federal Parlia- ment, in which it seems to be admitted that the Provincial Legislatures have the right to incorporate insurance companies. But the Federal Parliament cannot amend the British North America Act, nor give, either expressly or impliedly, to the Local Legislatures, a power which the Imperial Act does lot give them. This is clear, and has always been held in this Court to be the law. I have also not failed, as it was my duty to do, to give due consideration to the fact that the respondent appears to have in his favor the weight and authority of the opinions of the learned judges of the Province of Ontario, though I may here remark that the judges of the Court of Queen's Bench, in one of these cases (Western Assurance Co. v. Johnston)^ distinctly stated that they did not express their individual opinions on this constitutional (question, but yielded to the judgments already given. GwYNNE, J., also dissenting : It is contended that the Act under consideration is ultra vires of the Provincial Legislature of Ontario which passed it, as interfering with the regulation of a branch of trade and commerce — control over which, is, by the 2nd item of Sec. 91 of B. N. A. Act, vested exclusively in the Dominion Parliament. The question thus raised is, undoubtedly, one of a very grave character, as became developed in the argu- ment of the several cases now before us wherein this point was raised ; one of which, namely, The Western Assurance Co. v. Johnston, was argued by the Attorney-General, who is also tlie Premier of the Pro- vince of Ontario, in support of the constitutionality of the Act. The question before us is not one merely affecting the particular Act in question, but, our judgment in this case, although the Dominion Parliament is not represented, and has not been heard in the matter, will logically atfect some thirty Acts of the Dominion Parliament — whose constitutionality has not heretofore been questioned — and wliich must be ultra vires of the Parliament, if the Act now before us be ultra vires of the Provincial Legishiture ; and, on the contrary, if this Act be ultra vires of the Provincial Legislature, a number of Acts passed by the Legislature of the Province of Ontario must be equally 80. It is clear, that the subject matter of the Act in question is not one over which jurisdiction is by the B. N. A. Act given concurrently >OWER. 1!. N. A. ACT, 18G7 — SECT. 92, § 13, PROVIXCIAL LEGISLATIVE POWhR. 281 vincial A-Uege3 mercial Pavlia- islatures Federal Aor give, 31- wlui'li s always lied, as it that the ihovity of o, though Bench, in distinctly IS on this ' given. to the rrovincial Legislatures and to the rarliament. If it were, no doubt the Act would he valid " r the one or the other. The(iue:stion, therefor(% is determin- abh; by the liule which I adojited in the ('if>/ of Fin/cricfoii v. The Queen, as a]i]iearing to me to ihniish an unerring guide in determining whether any given subject of legislation is within the jurisdiction of the Provincial Legislatures, or of th'^ Parliament ; namely : " All " subjects of whatever nature, not exclusively assigned to the Local " Legislatures, are jilaced under the supreme control of the Dominion " Parliament, and no matter is exclusively assigned to the Local '• Legislatures unless it be within one of the subjects expressly enu- " merated in sec. 92, aiuJ af the s of sec. It2 of the 15. N. A. Act ; namely " Pro- perty and (Ji\il IJights in the Province." 1 have already, in Cif'j of Fveilerivton v. Tlie Queen, expressed iny oi>iiuoi), that the plain meaning of the closing sentence of sec. 91 is that (notwithstanding anything in the Act), any matter coming witliin any of the subjects t aimerated in the 91st section shall not be deemed to come within the class of sul)jects enumerated in the 92nd section, however much they nuiy appear to do so. Jurisdiction, there- fore, "over Property and Civil llights in the Province" is not vested (ihsiihitelt/, but only quaJlfjedly, in the Local Legislatures. Ill so far as jurisdiction over " Pro])erty and Civil Rights," in every I'ldviiice, may be deemed necessary for the perfect exercise of the e\'cliisivi> jurisdiction given to the Domiidon Parliament over the several subjects enumerated in sec. 91, it is vested in the Parliament, and what is vested in the Local Legislatures by item 1.'.! of sec. 92, is only jurisdiction over so much of Property and Civil Pights as may I'eniain, after deducting so much of jurisdiction over those subjects as may be deemed necessary for securing to the Parliauient exclusive control over every one of the subjects enumerated in sec. 91 — the residuum, in fact, not so absorbed by the juri.sdiction conferred on the Parliament. The only question therefore before us substantially, is : are or are / 9\ 282 B. N. A, ACT, 18G7 — SECT, 92, § 13, TKOVINCIAL LIxaSLATIVE POWER. not joint stock companies, whicli are incorporated for the purpose of carrying on the business of Fire Insurance, traders ? and is the business whicli they carry on — a trade ? If this question must be answered in the aflirmative, the Act under considerati(jn must be idtra vires of the Provin('ial Legishiture as much as was the Act which in Severn v. the Queen was pronounced so to be, and, as tlie Act under consideration in City of Frederlcton V. the Queen would have been, if passed by a Local Legislature ; indeed, it seems to me to bo diHicult to conceive what greater assertion of jurisdiction to Regulate Trade anadatobefor [o or more of (^^ H. N. A. ACT, 1867 — SECT. 92, § 13, PllOVINCIAL LEGISLATIVE POWER. 283 All these excepted su])jeets are, by item 29 of sec. 91, placed under the exclusive legislative authority of the Parliament of Canada, and so, by this closing paragraph of .sec. ^U, are, in effect, pronounced not to be Local or rrt)vincial works or undertakings. Works and undertakings within each Province, other than these so excepted, are all, therefore, which can come within the description of "local works and undertak- ings" comprehended in item 10. It is to b3 observad, also, that when power to incorporate Companies is given, no mention is made of trading companies. The power is exi)re3sly limited by item No. 11, sec. 92, to "The Incorporation of Companies ivith Provincial ohjecU." It is, perhaps, easier to say what the term does not comprehend, than to define it precisely. Such local works and undertakings as are by item 10 placed under the Local Legislatures may properly be termed Local or Provincial objects. So may the subjects enumerated in item No. 7, viz. : " 'I'he establishment, maintenance and management of hospitals, asylums, charities and eleemosynary institutions in and for the Province, other than marine hospitals," and so likewise the item specified in sec. 93, namely, " Education," and beyond these, I cannot say that I see any other. But, when we regard the whole scope and object of the IJ. N. A. Act, and bear in mind that the scheme of Con- stitutional Government, which it was designed to create, was to vest in the Dominion Parliament — consisting of Her Majesty herself (the Supreme Executive authority) as one member, and a Senate and House of Commons, as the other members of the Legislative body — the Supreme Sovereign Jurisdiction to legislate upon all subjects whatsoever, ex- cepting only certain specific matters, particularli/ enumerated, purely of a local, domestic and private nature, which were assigned to the Provinces ; and, when we find that for greater certainty, to expel douljt as it were, the exclusive legislative jurisdiction of Parliameiit is ex- pressly declared to extend to all matters coming within " the regulation of trade and commerce ; " (words which, iu perfect character with the general supreme jurisdiction, intended to be conferred upon the Parlia- ment — excepting only the purtic^darhj excepted subjects — are compre- hensive enough to include and must be construed to include every trade and every thing relating to every trade, and to all branches of eommerce and to the persons by whom, and to the manner in which, the same in every bianch thereof, may be carried on) we can, I think, with great confidence, assert that no jurisdiction to incorporate any Trading Company, or to restrain or control any Trading Company in the 284 li. N. A. ACT, 1867 — SECT. 92, § 1 3, rUOVINCLVL LEGISLATIVE POWER. way it slionkl carry on its trade, is given to the Local Lei^islatures ; unless it be in respect of coinjtanies for the construction, maintenance and management of siicli works, as by item No. 10 are ]»laced under the control of the Local Legishitnres under tlie designation " h>oal woi ks and undertakings." From the frame of item No. 11, it is ])lain that what was intended by annexing flie qualification " with Provincial objects," was not the jiower of incorporating companies for all i)urposes, but a limited power; for, inasmuch as, wholly irresi)ective of these words, the Local Legislatures could give no powers beyond their respec- tive I'lovinccs to companies incerial Parlianunit for tin; passage of the P. N. A. Act, was not ignorant that by the Civil Code of Lower Canada (which was enacted into law by an Act of the Parliament of Old Canada) the contract, of fire insurance, when made for a premium by ])ersons carrying on the business of insurers, is a commercial contract. It was, therefore, upon the same basis as marine insurance, Avhich, by the same article 2,470, of this Code, is declared to be always a commercial contract; and this is given not as a new, but as an old law. Now, it is impossible to conceive that the B. N. A. Act contemplated dealing with the same subject, as a branch of trade and commerce in one Province of the Dominion, and in another, as not — in one, as subject to the Dominion Parliament, in another, to the Local Legislature. In England, fire insurance has always been regarded to be a trade eqiuiUy with viarine insurance, and to have emanated from the latter, and to be governed by the same ])rinci[)les and the same mercantile law as governed marine insurance. There can, therefore, be no doubt that in the contem])lation of the B. N. A, Act, all insurance, whether of lives, or of real or personal property, and, whether against risk by lire on land or sea, or by storm on land or sea, or by any otber casualty, must be ecpially regarded as branches of trade and commerce, and must, all alike, be under the jurisdiction of the Dominion Parliament. There can be no doubt that the object of the B. N. A. Act, in placing ''any ruattev coming ivithin " the term " regidation of trade and com- merce," under the exclusive control of the Dominion Parliament, was, to secure a perfect uniformity in all the Provinces of the Dominion as to all matters whatsoever affecting all trades, as an essential condition to the prosperous carrying on of trade, and, to prevent all possible inter- POWER- enco of ;o some in the ViiUace, la Tele- all that as •• A by the !\ coMtnct 1 luiotlior iory now ng to the was not ,s enacted Dutract. of n.i^ on the fore, upon de 2,470, ; and this possible to the same |nce of the Dojnuiiou |,)e a trade I the hitter, pantile hwv loubt that whether of ksk by iii-e casnalty, and must, ent. There ^cing " cirti/ and com- ^ment, was, nninion as vl condition ssible intcr- B. N. A. ACT, 1SG7 — SECT. 92, § 13, PROVINCIAL LEGISLATIVE POWER. 287 ference or iiit(n'med(llin<^ with any trade ; whieh, diverse local views entertained in the ditlerent Provinces of the Dominion, might be dis- posed to att(!nii)t if the subject were ]daced under local jurisdiction — whether by prescribing a particular form of contract and [irohibitiiig any other being used; or by prescribing a jiarticular mode of execution of the contract ; or l)y assuming to dictate in any other manner, as to the manner in wliich, or the terms subject U) which, trading companies or other persons engaged in any particular trade, should be permitted to carry on such trade. The inconveniences which would attend the carrying on fire insur- ance business, nuiy well be conceived to be highly injurious to the inter- ests of persons engaged in that trade, if they sliould bo restrained from entering into contracts in the tertns in whicli persons desirous of having their ])roperty insured might be willing to contract with them ; and if tliey sliould be compelled to give up business, unless they adopted a particular ft)rm of contract, executed in a particular manner and subject to parti- cular conditions totally ditlerent in each Province ; and if they should be subjected to different penalties, forfeitures, and conse(|uences, if each of the forms prescribed in eacli should not be followed. So, likewise, how inconvenient it >vould be if companies eni])owered, as many are to carry on marine as ^''ell as fire insurance, should, as to one contract, be subject to the Dominion Parliament, and, as to the other, to a Local Legislature. Now, that the Act under consideration, which assumes to prohibit all fire insurance companies — whether com[)osed of foreigners or of British subjects, and whether incorjjorated by foreign States, or by the Imperial Parliament — from carrying on their trade in the manner authorized by their respective charters of incorporation; and from enter- ing into such contracts as persons willing to deal with them may agree upon ; or from entering into any contract in the way of their trade sub- ject to any other conditions or in any other form than i)rescribed by the Statute and provides ; that in default of adopting the prescribed form, the parties contracting with them (although violating all the conditions upon which alone the companies entered into the contracts) sliall recover against the companies, notwithstanding that, in the con- tracts in fact entered into, they had consented that, in the "it which has happened, the companies sliould incur no liability — tlu,: such an Act is one which assumes to regulate and control, and, in a ver}'' marked manner, to interfere with the trade of fire insurance, does not admit of a doubt 288 B. N. A. ACT, 18G7 — SKCT. 1)2, §1.S, ritOVIXCIAL LKGISLATIVK I'OWKR. m The mischief of tliis Icj^'isliition lies ch^epor than appears iii)on Cie surfiico. Till' ^erni of tliat mischief appears in the Jud^niicnts of some of the learne(l .Iiid^vs of the (,'oiirt of Appeal in Ontario, ami was more fully developed l»y the Attoniey-(ii neral of ( )iilario in his argument before ns, in Johiistoit v. TJic ]Vcstcr)i AssKiuttirc ('(nnpdiiif ; thc^ loL;is- latnre <^rantin Icarn- "(illowing a Coin- iiak(^ ef)n- •incy iiiiiy je) may, if into con- y security iontraets." .(1 to make the TiO;4is- i,se Prorlnce of Ontario. The. L ])ass iin Act to regulate or control the terms under which a trade may be carried on, than they have to pr(»hibit it altogether from being carried on within the limits of the I'rovince. The former ])ower is indeed but tlu! exercise of, and is conijirehended in, the latter ; for an Act to regu- late and control a trade, is in effect, to jn'ohibit the carrying on of the trade at all, otiicnrisc than u])on and subject to the prescribed regula- tions ; but the right to exclude, for example, foreign traders, be tluiy corporations or individuals, from carrying on their trade in a country, can only be asserted in virtue of, anil as incident to, Supreme Xational Sovereignty. An Act of exclusion, e(iually with an Act to control and rcgidate the manner in which a trade shall be carried on, can only be vindicated uyxm the principles governing what is called the Coniitij of X(ilio)is, the administration of which, belongs exclusively to Sii2)r<-ni(' Xdtional Sovercifcivr» v. The Queen, I relied on the definition given by C. .1. JIarshall (jf the words " Kegulation of Commerce" (which are in the Constitution of the United States) as follows : " That is, the power to regulate — that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself; may be exercised to its utmost extent, and acknow- ledges no limitations, other than those which are })rescribed by the Constitution." I still adhere to the correctness of this definition. If we take it in its entirety, it is ajiplicable to the question now under consideration, and will help ns to solve it. We must, above all, not lose sight of the last words, "and acknowledges no limitations other than those which are prescribed by the Constitution." This restriction indicates that it is in the Constitution alone that the limitations of the ])ower to regulate commerce will be found. After giving this power to the Federal Parliament l)y Paragraph 2, Section 91, the Statute gives to the Provinces, legislative control over property, civil rights, and matters of a merely local and private nature. This special power, exclusively assigned to the Provinces, caimot, by the terms of the Constitution itself be considered as coming under the power of regulating connnerce. The regulation of trade and commerce must necessarily mean something else than legislation on property and civil rights, suV)jects, which belong exclusively to the Local Legislature. In exercising its power, the Federal Parliament no doubt has the right to incidentally entertain those matten^ which are under the iurisdiction of the Provinces, but E POWKR. If this il I'ov this i.wer, llui )i3f'()m(! of xtcMuls to •hiinj^e tie tnuc de la Lional Act and Com- l)Ut, on the liole of the , conclusion 11 its pvovi- nition given ' (which are That is, the conuuevce is Congress, is uid acknow- )ed by the inition. 1^ 11 iK.w uni'er ,nVL' all, not tations other ^is restriction at ions of the his power to tute gives to and matters , exclusively itution itself it commerce. Ian s(jniething iwhich belong power, the Jly entertaiu i-ovinces, but B. N. A. ACT, 18G7 — SECT. 92, § 13, PROVINCIAL LEGISLATIVE POWER. 293 this power cannot extend any iuither than to what is just and reasonahlo and necessary, in order to legislate for conimercial purjjoses only. The Federal Parliament couUl not, tliei'efore, under the pretence of legisla- ting on commerce, entirely control a subject matter which comes under tlie juris(Hction of the Provinces. Any legishxtion having reference to the regulation of commerce must })e complete, but it need not necessarily destroy tlie jurisdiction of tlie Provinces over that part of the subject matter which is not affected l)y sucli legislation. If this were not the case, whenever the Federal power, in exercise of its authority over commerce, should legislate in such a manner as to indirectly affect property and ci\il rights, it would follow, that all legis- lation over the subject matter would belong exclusively to the Federal Parliament, and the legislative ])Ower of the Provinces over the same matter would cease to exist. The decision of the Privv Council, in the case of L' Union St. JiU'queH v. Belisle {L. R. (», P. C. 3i)), has enunciated a principle which, a})plied to this case, enables us to recon- cile the exercise of their respective powers, by the Federal Parliament and Provincial Legislatures. If this constructi(m is not the jjroper one, what would be the consequence of legislation on the subject of marriage ? The Federal (Jovernment lias jurisdiction ov( v mavi'iago and divorce ; the jurisdiction of the Provinces is limited to tlie solemnization of marriage, which means the formalities required previous to marriage. Xow the general expression, " niari'iage and divorce," literally inter- preted, is susceptible of a very extensive meaning. Could the Federal Parliament, in such a case, on the ground that the legislation over marriage is assigned to it, extend its jurisdiction so as to regulate the civil conditions of the contract, such as dower, community of goods, and thus exclude the jurisdiction of the Provinces over that jiortion of the civil law. On the contrary, is it not evident that the Federal Parliament should confine its legislation strictly to the conditions which have reference to the capacity or inca])acity of contracting marriage, and to reasons for prohibition, and to other conditions relating to the character of that contract, without interfering with the civil rights appertaining thereto. This general expression, in i)aragraph 2G, section 91, " Marriage and Divorce," gives us another example of the use made in the Constitutional Act of expressions which must have a limited meaning by the other provisions of the same Act. Cannot the same process of reasoning apply in construing the power of regulating trade and commerce ? In order to reconcile the exercise of these powers, I have arrived at 294 u. N. A. ACT, 18G7 — sect 92, § 13, provincial legislativk powkii. the conclusion, in a case such as the one now under consideration, that the Provincial jurisdiction is only limited by the exercise by the Federal Parliament of its power, in so far as the latter is coin[)etent to exercise it, and that, the Province can still exercise its power over tiiat portion of tlie subject matter over wliicli it has juris(Uctioti, provided the Provincial Legislation does not directly conflict with the Federal Legislation. This interpretation seems to be supported by the foUow- ing authority— AS7or^ l.s^ Vol. Sfat. .t Const. Law, Sec. 1,067 : " A grant of power to regulate, necessarily excludes the action of all others who would perform the same operation on the same thitig." The (jues- tion therefore is, — is there any Federal legislation on the same subject — save operation oil the mine things. It istpiite true that the Parliament of Canada has passed s(!veral statutes relating to insurance companies, prior and subsequent to the law now under consideration. Without wishing to enter into a minute examination of this legislation, I w 11, however, refer to some of its principal provisions, in order to shew that there is no conflict between the Federal laws and the Statute passed by the Legislature of Ontario. The Statute 40 Vic. Ch. 42, which amends, consolidates and repeals the previous legislation (the first Act being 31 Vic. Ch. 48), passed by the Federal Parliament, in ref rence to the sul\j('ct matter of insurance, enacts several provisions, the ol)ject of which is clearly to protect the public against any loss which might result from companies being irresponsible. The companies to which this legislation ap[)lies are first obliged to take out a license, without which they cannot transact any business. They must afterwards deposit in the hands of the Minister of Finance the sam of $100,000 as secur- ity for the holders of their policies of insurance. They must also file in the Department of Finance, and also in the offices of the Sujierior Courts having jurisdiction where they transact business, a copy of their charter of incorporation, as well as a power of attorney on the part of the Company to its principal manager in the form prescribed, with a declaration that the service of any writ or proceeding against the Com- pany can be made at the oHice of such agent or manager. They must as well furnish complete and detailed statistics of their business, and notify any change with respect to their head oftice, give notice that they have obtained a license, and also notify when they cease to do business. Special provisions are enacted, with a view of winding up such companies in case of their insolvency. Lastly, they are subject to the inspection and supervision of an inspector, who is given sufficient authority for the carrying out of the provisions of the Act. ; row EH. B. N. A. ACT, 1867 — SECT. 92, § 13, PROVINCIAL LEGISLATIVE POWEU. 295 ion, that i> by the [)etent to over that provided e Federal lie foUow- •all otliers The tivies- . siilijeet — L'arhauient companies, Without ion, 1 w 11: J shew that e passed l)y ich amends, ^.ct being 31 rence to the he ol\ie('t of which mi'^ht es to wlucU ivse, without iirds deposit too as secur- ust also file the Superior copy of their in the part of icribed, with nst the Com- They m"''^ jusiness, and ■e notice that cease to do [f winding "P |y are subject ven sufficient These provisions, it is clear, have notliing wliatever to do with res- pect to the contract of insurdncfi, but are only f(jr the purpose of sub- jecting the insurer, in the exercise of his trade as such, to certain regu- lations established for the protection of the ])ul»lic. This legislation does not impose any conditions which necessarily form part of the contract. We find, therefore, that th'» Federal legislation d )es not in anywise affect the nature of the contract of insurance, nor tlia conditions form- ing part of such contract, and that the legislation of Ontario, now undtn- consideration, deals exclusively with that sul)j 'ct, — both legis- lations deriving their respective powers from dillerent sources —the first from the power of regulating trade and commerce, and tlie other from the power of legislating over civil rights and property. Why, if the provisions of these laws are neither conHicting nor antagonistic to one another, can we not hold that b(jth are coustitutional ? I see hot ween them, no conflict, no obstacle, to their being carried into oi)eration. This view of the case is supported by the following authority, Pomennj on CouHtUutional Law, page 218, " So, if a State, in passing laws on subjects acknowledged to be within its control, and with a view to those subjects, shall adopt a measure of the same cliaracter with one which Congress may adopt, it does not derive its autliority from the particular power which has been granted, but from the other which remains with the State, and may l)e executed by the same means. All experience shews that the same measures, or measures scarcely dis- tinguishable from each other, may How from distinct powers ; but tliis does not prove that the powers themselves are identical. Although the means in their execution may sometimes approach each other so nearly as to be confounded, there are other situations in which they are sulticiently distinct to establish their individuality." Although it is possible to thus reconcile these legislations, is it not evident, however, that the Act passed by the Legislature of Ontario, relatinsi exclusively to the proof to be made in case of loss, and to the nature of the conditions of contracts of insurance etfected in the Pro- vmce of Ontario, is iutni vires! for the issuing of a policy of insurance is not necessarily a commercial transaction ; it is certainly not one, on the i)art of the assured, although, by the Civil Code of the Province of Quebec, it is a commercial transaction on the part of the assurer. Pardessus, Droit Commercial, says : — " Elles (les conventions d'assr- rance) ne sont pas, par leur nature, des actes de commerce de la part de ceux qui se font assurer — mais comme presijue toujours de la part de ceux (|ui assurent elles sont de veritables speculations, c'est sous ce 296 I!. N. A.AdT, 1807 — SECT. 92, § 13, provincial legislative power. point de vue (jue nous les consiilerons comnieactes de conunerce et que nous avons cru devoir en fuire connaitre les principes." It is the same in England ; insurance is a connuercial transaction, although the con- tract of insurance itself forms j)art of the civil law. In our Constitu- tional Act 1 cannot Hud anywlK-re, that commercial law is under the jurisdicliou of the Dominion ; it seems to me, on the contrary, that the Act, by assigning si)eciHcally to the Dominion, legislative control over a ])iirt of the commercial law, such as any law on Navigation, J-anking, Bills of Exchange, Promissory Notes, and Insolvency, has left the resiilue to the jurisdiction of the several Provinces as coming under the head " civil law." In this view of the case, the Act now under consideration would derive its authority froui the power of the Provinces to legislate on civil rights. It is on this i)rinciple that the case of Paul v. Virginia (8 Wallace 1G8) was decided. A law i)assed by the State of Virginia enacted that Insurance Companies, not having been incorjjorated under the laws of the State, could not transact any business within the limits ot the State without ])reviously taking out a license and depositing a certain sum ns security for the rights of the assr.red. The iilaintiif con- tended that the law was unconstitutional, because it was contrary to the jiower of Congress to regulate trad*' 'ind commerce. JMr. Justice Field, who delivered the judgment oi the Court, makes use of the following language : Issuing' a policy of insuranco is not a trans anion of conunerce. The policiLS aio siniply cimtnicts of indcnmity ;.<:.iiiist io^s by fire, entered into between tlu; Corp(ir;itioii iiuil the as>ure(l for a con>iileratiou piid by tiie latter. According to this decision, the Legislature of Ontario had power to pass the law in question as l»einga part of civil law. But there is also another argument which I consider conclusive ; it is, as will be seen hereafter, the recognition by the Federal Parlia- ment of the right of the Local Legislatures to legislate on this sultject. Although, by paragraph 11 of section 92, power is given to the Provinces io incorporate comp,inies for provincial objects, it has, however, bjcn contended that these words are not sutHcient to com- prise the power to incorporate Insurance Companies. The terms, however, are suiliciently comi»rehensive to include Insurance Companies. If it is objected that the object of an Insurance Company is not Provincial, in the sense that its object has not an interest for the whole Province, that is to say, a public interest ; I answer, by saying that the object is to transact business throughout the Province. This ,A.T1VE I'OWEU. uiuerce et que It is the same migU the cou- our Coustitu- V is under the itrary, that the ;e control over atiou, ]".aukiug, ,,, has left Llie iiiiug under the jideration would legislate on civil V. Virginia {S itate of Virginia icorporated under within the limits and depositing a The iilaintitl' con- , was contrary to roe. ^Iv. Justice uakes use of the ,„evce. The p'.hc'us k'd into betwcou the latter. :ario had power to lisider conclusive ; Ihe Federal Parlia- ]te on this siihject, I- is in\'^''i'^ to the U ohjed>^, it has, Isullieient to coni- liies. The terms, lurance Companies. Company is not In interest for the 1 answer, by saying lie Trovince. This li. N. A. ACT, 1867 — SECT. 92, § 13, ntOVINCIAL LEGISLATIVE POWER. 297 mtist be the interpretation to be given to these words, if they are to have any signifi(!ation whatever. They certainly would have no meaning whatever, if they were interpreted as giving the power only of inc()r])orating companies having a public Provincial interest. Such an interpretation would be equivalent to saying that the Government could delegate its functions to corporations, and have them exercised by them, and that they have no power to incorjiorate companies f(n' the purpose of commerce, industry, trade, &c,, &c. They certaiidy have, in my opinion, that jjower. ])rovided the companies tlius incor])orated, confine their ojierations within the limits of such Province. If tliey desire to go outside of tlie Province, tliey come under the pro- visions of the Federal law, to which they must conforui, and wliich contains special provisions for such event. This power of incorporating com[)anies, exercised by the Legisla- ture of Ontario, has been recognized by Federal legislation, as belong- ing to Provincial Legislatures. Sec. 28 of 40 Vic. Ch. 42, enacts : " This Act shall not apply to any ct)mpany within the exclusive contr(.)l of any one of the Provinces of Canada, unless such company so desires, and it shall be lawful for any such conqiany to avail itself of the jirovisions of this Act, and if it do so avail itself, such company shall have the power of transactitig its business of insurance throughout Canada." The first section of this Act makes the laws respecting insolvency applicable to insurance companies incorporated by the Parliament of Canada, as well as to those incorporat'jd prior to and after Confedera- tion, by the Legislature of any Province now constituting Canada. We also find in the 30th section of the same Act another recogniti^ui of the power of the Provinces to legislate on the subject of insurance. Poubts having been raised as to the validity of a certain Ontario Statute relating to mutual insurance comj)anies, this section of the Fedend Act declares that only such provisions as are within the jurisdiction of the Federal Parliament are repealed. In this section there is not onl}' the formal recognition of this j)ower in the Province, bat there is also this important declaration, that the Act repeals oidy that part of its provisions involving a conllict of power. It is a formal admission tliat this stil)ject matter, when treated in its com- mercial aspect, is within the control of the Federal Parliament, whilst, wlieu regarded as relating to civil rights, such as involving the form and nature of the conditions of insurance, it remains under the conti'ol of the Provincial Legislature. This also confirms the opinion above u -tw. 298 B. N. A. ACT, 1867 — SFXT. 92, § 13, provin'cial legislative roWRK. stated, as to the restriction^? wliich the Federal and the rroviiicial Governments must iinimse iijuin tliemselves in the exorcise of tlieir res]-ective powers, in order to keep within the limits of their jurisdiction. It is true that tlie exercise of a ]io\ver would not be a sutticient reason, in many cases, for declaring? that it legally exists, but in a case such as the one now under consideration, wliere there are cogent reasons for exercising this jtower in a limited manner — as it has been 1>y 40 Vic, (,'h. 42, rec(»gnizing the power of the Provinces — which seem etjually well founded, we may fairly presume that the accord of both Legislatures to keep themselves within the limit of their respective ]»ower9, was for the purpose of exercising such jjowers as ])roperly l)elonged to thenjrespectively. The most im])ortant jjublic Dejiartments, such as the I'ej.artment of .lustice, the Dciiartment of Finance, have for some years past addjited this view of the law, by seeing that the recpiirements of the several Federal laws relating to insurance were strictly comj.lied with. Such an interpretation could iKjt prevail, no doubt, against a judicial decisio... but, in the absence of the latter, the interpretation given by the Departments must have great weight. Story thus speaks of the value of the same {Constitvtion of the Uh'deO Sfofes, Vol. /., lYo. 408) : "And, after all, tlie most unexceptional source of collateral inter})retation is from the practical expositiftns of the Government itself and of its various Departments, upon particular que.stions di.scus3ed and settled ujion their own single merits. The.se approach the nearest in their own nature to judicial exposition, and have the same general recommendation that belongs to the latter." This departmental interpretation has been acted upon for several years ; the licen.se fees have been collected, and statistics have been fur- nished, without any contention on the part of the Provinces ; and the power exercised in virtue of the law of Ontario was not contested l)y the Federal Government, who had the authority to disallow the Act had they considered it ultra vires. When both Governments are in accord, and in order to dispel any doubts, specially legislate, would it not be unwise to substitute another interj^retation to theirs ? If there were any doubt on the matter, it seems to me, to have been setllcil by legislative interpretation, and all the tribunals have to do, is to conform themselves thereto. Thus, besides the reasons I have given aliove in favor of the law of Ontario, there is also in its favor, administrative interpretation and legislative interpretation. If I do not add, judicial exposition of the Ontario Courts, it is because their decisions are being I POWKR. 1). N. A. ACT, 18G7 — SECT. 92, § 1,3, PROVINCIAL LEGISLATIVE POWER. 299 ■ovincial of their [)f their not be a cists, but there are ler— as it oviuces — that the e limit of ic\i powers :aBt pubHc ,artinent of ;, by seeing 1) insurance couhl not sence of the have great ■retended that thoy could set themselves above the laws of the Provinces or countries in which they carry on business, and claim, that they should be subji'ct oidy to the laws in force at their princii)al place of business. Whatever may be the inconvenience, are they not obliged in all their contracts to conform themselves to the laws of the country where they carry on business ? It would, no dtiubt, be much simpler and more advantageous fnr insur- ance comi)anies, to have the power of themselves determining their con- ilitions, and of inqjosing them in all countries where they nnght open otlices. Would n;)t this be putting them above the lav,' ? Far from rei'ogniinng that they have such privileges, numerous authoiities and judicial decisions agree to the contrary. This point has already been ducided in the case of Paul v. Viryinia already cited, in whirh Mr. Justice Field says : — " A recognition of its existence (corporation) even hy the other States, and the enforcement of its contracts made therein, dejiend greatly on the comity of those States, a comity which is never , extended when the existence of the corporation or the exercise of its I power is prejudicial to their interest, or repugnant to their interest. 300 B. N. A. ACT, 18G7 — SKCT. 92, § 13, rnoviNciAL legislative rOWER. They may exohule this foreign corpomtion, they may restrict its htisi- ness to particular kicalitie.s, or they may exact security for the perform- ance of its contracts with their citizens, as in theii judgment will best promote the public interest." It is hardly necessary to cite authorities on this point, as it is ( uly the ap]ilication of the elementary rule " lurus regit actuiii." 1 will cite, however, the following, as it contains the opinion of the author of the " Traite du droit de la nature et des gens," Alaiizet, Vol. 1, No. 194, page 361 : — " Lorsque la justice estapi)lical)le k des navires amicus et t'ipiipes en France quoique etrangers, les dispositions de la loi I'lan- qaise doivent etre suivies. La cour de Cassation a eu occasion d'exam- iner cette question et I'a resolue dans ce sens." Merlin (pii rapi)orte cet arret Tapprouve. "Sur cette question, disait Mr. Daniel, organe du ministere public, rien n'est jdus constant (pie le jirincipo invo(iue ]iar les demandeurs et dt'veloppd par I'uftendorf — quiconque passo mi con- trat dans les terres d'un souverain, se sonmet aux lois dii jjays et devient en quelqne mani^re, sujet jiassager de cet t'tat." The Company appellant also contends, that their conditions being in substance similar to the statutory conditions, they may avail themselves of the statutory conditions, and yet, not comply with the rei[uirenients imposed by the Statute ; that is to say, in my o])inion, because tliey have evaded the law, they should have the same right as though thi^y had complied with it. It seems clear that when a company does not have the .statutory conditions printed, as ])rescribed by Section 4, tlie third section provides that they may form part of the policy "as agaiu.st the insurers," leaving it optional to the insured to take advantage of them or not, the insurance, then, being subject to such conditions which result from the law bearing on the subject of contracts of insurance. I do not presume h'jre to r in a Local Legislature to regulate, by onactmont, the rights of insurers and those they insure against loss or diiuiage by iire. Jt is also contended that, if it ])e not .so, the Local Legislature might, by the imposition of conditions and restrictions, frustrate the oltjeet of a Comi)any chartered or incorjuirated, by, or under, an Jmjierial Act, as is the ca.se with the appellant's Comi)any, or by or rnider an Act of the Parliament of Canada. The contention may or may not be well founded, and besides, the settlement either way, camiot all't'ct the main question. P>ut local legislation has not yet reached that ]i(iint, if it ever dues, it will be time enf)Ugh to deal with that ])osition mIk n it arises. If the ])ower to reg\ilate the matters in question be with the Local Legislature, it is not easy to find the authority to question, Cfintrol, or limit its exercise. We must construe the words of section 91 which I have quoted, h)j the whole Act and the several important ol»jeets in view, and be g'lverned by what is intended by it. The regulation of trade and commerce is a ■''ery comprehensive, but, at the same time, a very inde- finite and vague term, and, if construed in its com])rehensivc meaning. Would include a great variety of subjects which we find si»ecifically added in the list of subjects given to the Parliament of (Janada, such as, for exanqJe, " Beacons, liuoys. Lighthouses," " Navigation and Shipping," " (^hiarantine and the Establishment of Marine Hospitals," "Currency cand Coinage," " Banking, incorporation of BaidvS, and the issue of Paper Honey," " Bills of Exchange and Promissory Notes," " Interest," " Legal Tender," " Bankrujjtcy and Instdvency," and others. From this it n)ay li(> fairly assumed the term was used in some generic, but, at the same time, (pialified sense, and not intended to apply to the regulatit)n of trade and commerce in regard to all subjects that may be found to con- tribute to the one or the other. The operations of manufacturers, the hiring of their operatives, the providing and erection of machinery, pro- curing the raw materials used by them, with the necessary contracts and ngreements, and expenditure of labor emph)yed, and the interests of all parties engaged, from the owner of the soil through all the train of persons engaged in j)roducing and supplying lumber, iron, or other materials for manufacturing purposes, may all be said to be intimately connected with trade and commerce, and to be included in the general term used ; and if they were not shown by the whole Act and its objects to be excepted, we might possibly conclude them to have been inten- tionally included. The matters just referred to, all tend to contribute w 1- , t:' 1, ■'■"9^ i f : '^ 302 n. N. A. ACT, 18G7— SECT. 92, § 13, provincial legislative power. to, and create trade and connncvce; but Fire Insurance CV)ni])anios may o])erate, as they do in some cases, only in res))ect to af,'ri(;ultuvid build- ings, which but very remotely have any efU'ct on the trade and com- merce of the country. If organized f(jr local operation, we lind, by nund)er eleven of the list of subjects given to the Local Legislatiiics, the charters are to be granted by them. "The Incoriioration of Com- l)ani(;s with I'rovincial objects " are the words used, liut aj)art from these considerations, " Property and civil rights in the Province" being within the ])()\\er of the Local Legislatures, we must determine the extent to which, if any, the power to deal with them is necessarily restrained, and what limitation of them the liritish Parliament intended to ])rovide in reference to the exercise of this j'ower by giving to I'ar- liament •' The Pegulation of Trade and Commerce." From the jieculiardistributionof the legislative j)o\vers, and the mode adopted, it was a ditVicult undertak'ng to legislate so as to ])revent uitH- culties arising, but they are to be jiroperly I'esolved, only, by keeping prominently in \ui\y the leading objects intended to be ]a'ovideil f(ir. Looking oidy at number 20 in thi^ list contained in Section 91, find finding the words " Marriiige and Divoi'ce," we would at once conclude that those W(.>rds included everything with resjicct to those subjects; but in number 12 of Section 92 we iind "The solemnization of Miii- riage in the Province" is expressly given to the Local Legislatures. Xn doubt can be entertained, that, considering both provisions, notwiiii- standing any other jirovision of the Act, the intention was |)robably tu give the power to regulate the Solemnization of ]\Larriage, to the Local Legislatures. The two cases are not exactly alike, but still it shows nn one part of the Act should be alone looked at. The incor])oration of Fire Insurance Companies with Provincial oltjects being given to the Local Legislatnres, they can, as to them, ]ii('- scribe conditions and terms for the conduct of the business, antl regu- late the rights of the Companies and those dealing with them. With the power to deal with the whole subject of jirojiert}-, real and piersonal, and civil rights, and the right to prescribe and regulate, as just stated, in respect to the incorjioration of Companies with Provincial objects, it would be unreasonable to conclude they were intended to have no power to apply the same or similar conditions to the dealings of otiier Companies chartered outside. It would be, I think, im])roper to con- clude that the Imperial Parliament, in the use of the words " the regu- lation of trade and commerce," in the peculiar connection in which we find them, could have intended them to apply, not only to the regula- •IV E POWKU. ipanios may tuviil builil- and coin- wc; tin:l, I'V ion of Cuin- ; apart fi'mu viiice" bt'i"!-^ .I'UTiuiue the 9 necessarily iK'ut intontleil ;iving to I'av- and the mode 1 prevent uiffi- ly, \.y keepin-,' 3 provided fnv. -ction «J1, i>ii(l once conclmle liose subjects; zation of Mai- e;4islaturcs. Ni' Isinns, notwiili- as probably In re, to the Local ilill it shows no 'ith Provhicirtl U to them, yn'- hess, and re:.;u- ju them. ^Vltll lal and persoual, ]. as jnst stat(jfl, lincial objects, it led to have no jalings of other iliroper to con- lords " the regu- lon in which we to the regida- II. N. A. ACT, 1\ renewed, or o(K .wise in force, in Ontario, with respect to any protKitv tlicicin, and sliall be printed on every such policy, witii the In ;idinj^ "Statutory Conditions," and if a (Company (or other insurer) desire to vary the snid conditions, or to omit any of them, or to add new conditio ns, there sluill bo added, in conspicuous type, nnd in ink of different color, words to the followini; ffffCt : — Variations in eimditions — " This policy is issued on the above statutory "conditions, with the following variations and con lit ions : — Tlie.sc variations " Cor as the cise may be) are, by virtue of the Ontario Statute in that bi-half, " ill force so fiir as, by the Court or Jiid<^c before whom a question is tried " relating thereto, they shall be held to be just and reasonable to be exacted by " the Ciunpany." 2. Unless the same is distinctly indicated and set forth in the luunncr or to the effect aforesaid, no such variation, addition or omission shall be legal or bind- ing on the insured ; and no fpicstion shall be considered as to whether any such variation, addition or omission is, under the circumstances, just and reason, djJe, and, on the contrary, the p(dicy shall, as aguinst the insurers, be subject to the .statutory conditions only, unless the variations, additions or omissions, are distinctly indicated and set forth in the manner or to the effect aforesaid. Tlu,s Act was never disallowed, but has since its passage been acted on ; and the Ontario Reports sliow that questions as to its construction have been before the Courts oi Oiitario, without its validity having been impugned by either Bench or Bar; and, when the point was raised, its valitlity was affirmed by the unanimous ojiinion of the Court tj whom the question was fir.st submitted; it was so held and acquiesced in, in two cases unappealed from, and, when again raised in the present cases, the Court of Queen's Bench unanimously re-atlirmed its former decision and, on appeal, the Appeal Court of Ontario unanimously affirmed that decision. But this is not all ; we have tue Dominion Parliament recog- nizing, by ex])ressed statutory terms, the right of the Local Legislature to incorporate Insurance Companies and to deal with insurance matters. So far back as the 31 Vic. ch. 48 (1868) — when the intention of the Pailiament of Great Britain, in enacting the British North America Act must liave been fresh in the minds of the leading men who first sat in 30G 13. N. A. ACT, 1867 — SECT. 92, § 13, PROVINCIAL LEGISLATIVE rOWER, ■1 U ' W' the Dominion ravliament, and who had taken the most prominent part in dis('iissinj,' and agreeing on the terms of Confed .ration and tlic yirovi- siuns if the Britisli North America Act, and who, we historically know, wotchea its ;)assage throngh the Parliament of (Ireat Britain, — we find the Donuninn Parliament in that year (18lJ8) passing "An Act resjiect- ing Insurance Companies," and in that Act, by Section 4, thus clearly afhrming the right of the Local legislature to incorporate Insurance Companies — after fixing the amount to be dejiosited by Life, Fire, In- land Marine, Guarantee and Accident Insurance Compani(>s, certain Companies are excepted in these words : — Exoejit only in the case of Conipanios iricurporateil l)i'f'ofe tlio pissinir of tliis Act, by Act of the Parliament of Canada, or of the Legislature of any of the late Pruvinces of Canada, or Lower Canada or Upper C mala, or of Nova Scotia or New Brunswick, or whicli may liave been or may hernnftir in' incur- pnv(ttt / l)y the Parliament of Canada, or by the Leglslnture of any J-ruviiice of the Dominion, ami carrying on the business of Life or Fire Insurance. And, as if to place this beyond all doubt, and to show that Companies which might be so incorporated by the Local Legislature were local in corporations, and their l)usniess should l»e confined within the Province incorporating them, we find it enacted in Section 25 : TliMt tlie provisions of tliis Act as to deposit and issue of liccn>e sliall not iiy^ply to any Insurance Company incorporated by any Act of tiie Legislature of thu late Province of Canada, or incorporated, or to be incorporated, under miy Act of any one of the Provinces of Ontario, Quebec, yof<{ Scotia, or AV;/' Brnnsu-icI:, so long as it shall not carry on business in the Dominion beyond the hniiis of that Provitice by the Legislature or Government nf whieli it was iiicm- poratcd, but it sliall be lawful for any such Company to avail itsdfo^ the provi- sions of tiiis Act. Could words or provisions, in recognition and affirmance of the powers of the Local Legislatures, be stronger ? and in 38 Vic, Cap. 20 (1875), "An Act to an end and consolidate the several Acts respecting insurance, in so far as regards Fire and Inland JIarine business," we find, by Section 2, a distinct recognition of Companies incorporated under any Act of the Legislature of any Province of the Dominion of Canada. Section 2. — Tin's Act shall apply only to Compmies heretofore incorporated. 38 Vic. Chap. 20; Sec. 1. Sub-Sec. 1. 1. "Canadian Company" means a Company incorporated in Canada, for purpo.ses of Fire or Inland Marine Insurance business, or both, in Canada, and having its head oflScc therein, and entitled, under the second section of this Act, to receive a licenge as such. ^.TIVE rOWEK. B. N. A. ACT, 1867 — SECT. 92, § 13, PROVINCIAL LEGISLATIVE POWER. 307 are iucorpoiMteJ. 2. " Foreign Company " means a Company incorporated, or duly established, according; to the laws of any foreign country (includins;; the United Kingdom), for the purposes of Fire or Inland Marine Insurance buniness, or both, and entitled, under the second section of this Act, to receive a licenHC as such in the Dominion of Canada. Section 2. — This Act shall apply only to Companies heretofore incorporated by any Act of the (.e.i;i«laturc of the late Province of Canada, or h^ any Act of the Legishtture of ivnj of the Provinces of Canada, and which, upon the day of tlie pa.■^^iinl; of t!.is Act, were also licensed, under Act of the Parliament of C:iuada, to transact business of insurance in Canada, and also to any Company heretofore or which may hereafter he incorporated by Act of Parliament of (J niaila, and to any foreign insurance Company as hereinbefore defined (viz. : u Company incorporated in Canada) ; and it shall not be lawful for the Minister of Finance to license any other Company tlian tliose in this section above men- tioned ; and no ther Company than thoi^e above mentioned shall do any business of Firt or Inland Marine Insurance thoughout the Dominion of Canada ; but nothing herein contained shall prevent any Insurance Company incorporated by, or under, any Act of tho Legislature of the late Provinoo of Canada, or of any I'r ninceof the Dominion of Canada, from carrying on any business of insurance \vi bin the limits of the late Province of Canada, or of such Province only, iucniding to the powers granted to such Insurance Company within sucli limitB as aforesaid, without such license as hereinafter mentioned. But the Dominion Statutory recognition of the rights of the Local Legislation, strong as it is, does not rest here. As late as 1877, by the 40 Vic. Cap. 42, " An Act to amend and consolidate certain Acts respecting insurance," we find it thus enacted by section 28 : — " Tills Act shall not apply to any Company icithin the exclusive Legishifive control of any one of the Provinces of Canada rtnless such Company so desirr-a, and it shall be laufnl for any such Company to avail itself of the provisionar and I3ench of Ontario without its validity being questioned by either. When at last questioned, we find its validity sustained by all Courts and Judges of original jurisdiction who have been called on to adjudicate on this point, and, finally, by the unanimous opinion of the Court of Appeal ; and last, but not least, we have the express legislation of the Parlia- ment of Canada expressly recognizing that the Local Legislatures have power to deal with matters of Insurance. I do not put forward these considerations as conclusive of tlie ques- tions in this Court of Appeal, because, if we were clearly of opinion that under the B. N. A. Act the Legislature of Ontario had not the power to pass the law, we would be bound to say so and to over-rule the decisions of the Couits below and disregard the legislation of the Dominion Parliament; for, if not within the B. N. A. Act, neither the affirmance of the power by the Local Legislature nor the legislative recognition of it by the Dominion Parliament could confer it. Is such legislation as this with respect to the contract of Insurance beyond the power of Local Legislation ? The B. N. A. Act recognizes in the Dominion Constitution and in the Provincial Constitutions, a legislative sovereignty, if that is a proper expression to use, as imlepen- dent and as exclusive in the one as in the other, over the nifitters respectively confided to them ; and the power of each must be ecjually resjiected by the other, or ultra vires legislation will necessarily be the resuU. It is contended that the Local Legislature not only cannot incor- porate a local insurance company, but cannot }»ass any Act in reference to insurance, inasmuch as, it is contended, such legislation belongs exclusively to the Dominion Parliament, under the power given that Parliament to legislate in relation to " the regulation of trade and com- merce." As to the incorporation of insurance companies, this point is not E POWER. B. N. A. ACT, 18(37 — SECT. 92, § 13, PUOVINCIAL LEGISLATIVE I'OWElt. o09 jported to which, in Province, 1, policy of eveiii, and re to omit i si at live of es and lu- We find md Ikuoh When at ,nd Jndges ate on this >f Appeal ; the I'avlia- itures have if tlie qne3- of opinion ad not the o over-vule tion of the neither the legislative Insurance recognizes ttitutions, a 13 indepen- the matters J be eipially larily be the kmot iucor- |n reference 3n belongs I given that and com- Uint is not directly, though it is perhaps indirectly, involved in the questions raised in these cases. It may be remarked tliat, in the enumeration of the powers of Parliament, the only express reference to the power of incor- poration is under § 15, " Incorjioration of Banks," though it cannot be doubted that, under its general power of legislation, it has the power to incorporate companies with Dominion olijects. But it is said that insurance companies are trading or commercial companies, and, there- fore, within the terms " trade and commerce ; " but we have matters connected with trade and commerce, such as Navigation and kShipj)ing, Banking incorporations. Weights and Measures, and Insolvency, "and such classes of subjects as are expressly exce}>ted in the enuiueration of the classes of subjects by the Act assigned exclusively to the Legis- latures of the Provinces," and these and the other enumerated " classes of subjects shall not be deemed to come within the class of matters of a local or private nature, comprised in the einimeration of the classes of the subjects by this Act assigned exclusively to the Legislatures of the Provinces." This shows inferentially that there may be matters of a local and private nature with which the Local Legislatures may deal, and which, bat for the exclusive power conferred on the Local Legislatures, might be comprised under some of the general heads set forth in Section 91, as Indonging to tlie Dominion Parliament. This is made very apparent in respect to Navigation and 8hipi»ing. By Section 91 the exclusive legislative authority of the Parliament of Canada is declared to extend " to all matters coming within the classes of subjects next hereinafter enumerated," of which " Navigation and Shipping" is one. When we turn to the enumeration of the exclusive powers of the Provincial Legislatures, we tind: "Locil works and uiiduriiikin) lines of steani- slii[)S between the Province smd nny Britisli or foreign eountr) ; (c) such works as, althoni;h wholly situate within the Province, are, belore or after their execution, (kselareil by the Parli mient of C.madu to be for the general a(lvanta;j:e ofCanaila, or for tlie advantage of two or more of the Provinces." And then follows "The Incorporation of Companies with Provincial objects." Here then are matters immediately connected with navigation and ship[»ing, trade and commerce. If the power to legislate on navigation and shipping and trade and 310 U. N. A. ACT, 18G7 — SECT. 92, § 13, rKOYINCIAL LKGISLATIVE POWER. m commerce vested in the Duininiim r.irliaineTit, necessarily excluded from Local Legislatures all legislation in connection with the same matters, so that nothing in relation thereto could be ludd to come under " local works and undertakings," or " i-roj-erty and civil rights," i)r under " all matters of a merely local or iirivate nature in the Province," or " the Incorporation of Companies willi I'ruvincial objects," what possible necessity could there be for inserting the excei^tion " other than such as are of the following classes " (as above — a, h, c.) On tlie con- trary, does not this exception show beyond all doubt, by irrcsistiijle inference, that there are nuitters connected with navigatinn and shijipiiig, and with trade and cimuuerce, that the Local Legislatures may deal with, and not encroach on the general powers belonging to the Domin- ion Parliament for the regulation of trade and commerce, and navigation and shi])ping, as well as railways, canals and telegraphs. Can it be successfully contended that this is not a clear intiniaticiu that the Local Legislatures were to have, and have, power to legislate in reference to lines of steamers and other shijis, railways, canals, and other W(jiks and undertakings wh(jlly wiihin the Province — sul)j(.'.ct, no doubt, to the general })owers of Parliament over shipping and trade and commerce, and the Dominion laws enacted under such i>owers ; as, for iuivtance, the 31st Vie. Caj). (Jo (18G8), "An Act respecting the inspection of steamljoats, and for the greater safety of passengers by them," or the Act 3G Vic. Cap. 128, " An Act relating to shipping." With reference to Insurance Companies, and the business of insur- ance in general, it is contended these Companies are trading Coni])anies, and therefore the lousiness they transact is purely a mallei' of trade and commerce, and therefore. Local Legislatures cannot in any way legislate either in reference to Insurance Companies or Insurance business. As to such a Company being a trading Com})any, Jessell, JI. P., in the case of in re Gripith (L. P. 12, Ch. 65o), did not seem to tliii/i-: the question so abundantly clear as is supposed ; he says : — " 1 come now to the next point, which is, what is this Company ? Is it a trading or other public Company ? " So that we have it, that it must be a public Company, whether it is a trading or other Company ; therefore it seems immaterial to consi- der wliether a pnrticular Comi>any is or is not a trading Company, and I ani glad of it, because, though I think an Insurance Company might be called a trading Comjiany, many people miglit take the opposite view of the word " trade." I take the larger view, and think it would be called a trading Company, but it is immaterial. If it is a public ; POWER. ixclmled he sivine to collie iolits,' vV roviiieo," s," what thev thuu 1 the coii- rresistiblc shipiing, may deal le Doiuin- lavigatiou Can it Vie i the Local iforcnce to woiks and ibt, to the coimnerce, )!• instance, .spectiun of m," ov the 13 of insui'- Jonii)anies, It trade and y legislate iiiiess. M. IJ., ill i, think tiie come iiiiW trading or kvhcthcr it 111 to consi- lipany, and Lauy might le opposite Ik it would L a public B. N. A. ACT, 18C7 — SECT. 92, § 13, PUOVINCIAL LEGISLATIVK FOWKK. 311 Company at all, and not a trading C(jinpany, it comes under tlie term '• other public Company." I am willing to assume that Insurance Companies may be considered trading Compiinies, and yet it by uo means follows that the legislation comiilained of is beyond the powers of the Local Legislatures. With reference to section 91, and the classes of subjects therein enumerated, Lord Selborne, VUnioti St. Jacques de Montreal and Bdlslc (L. ]{. 6 P. C. 36), says:— " Tlu'ir Liinisliips obs.jrvi; t!i:it (lio sohcmn of onuii)or;iti')n in tluit sPctioii is to mention vnrions citef^dvics of general subjects which nniy be dealt with by legisl.itinn. There is no inlictitiim in any instance of anytiiin;^ being contein- pliitetl, cxco|.t wh it may pi'uperly he described a.s j^eneral legisl.itii)ii." No one can dispute the general power of Parliament to legislate as to " trade and commerce," nnd that where L(.)cal legislation over matters with which Local Legislatures have power to deal, conflicts with an Act i)assed by the Dominion rarliainent in the exercise of any of the geni.-ral powers conhded to it, the legislation of the Local, must yield to the supremacy of the Dominion I'arlianient ; in other words, that the Provincial legislation in such a case must be subject to such regulatiijns, for instance, as to trade and commerce of a commercial character, as tiie Dominion Parliament may jjrescribe. I adhere to what I said in ]uilin, v. LaiiyJois (3 Can. Supreme t\ ] ) — that, while the pro})erty and civil rights referred to were not all pro- perty and all civil rights, but that the terms " jiroperty and civil I'iglits " must necessarily be read in a restricted and limited sense, because many matters involving projierty and civil rights are expressly reserved to the Dominion Parliament, and the power of the Local Legislatures was to be subject to the general and special legislative powers of the Dominion Parliament — and to whitt I there added (p. 15) : " lint while the legislative riglits (jf tlie Loi^al Legislatures are in this sense subordinate to the right of the Dominion Parliament, I thi'.ik sticli latter right must be exercised, so far as may be, o^nsistently with the right of the Local Legislatures ; iind, therefore, the Dominion Parlia- ment would only have the right to interfere with property or civil rights so far as such interference mtiy be necessary for the purpose of legislat- ing generally and elYectually in relation to matters coufided to tl;e Parliament of Canada." The power of the Dominion Parliament to regulate trade and com- merce ought not to be held to be necessarily inconsistent with that of the Local Legislatures, to regulate property and civil rights in respect /I fi 312 B. N. A. ACT, 1867 — SECT. 92, § 13, PROVINCIAL LEGISLATIVE POWER. to all matters of a merely local and private nature ; such as mutters con- nected with the enjoyment and preservation of property in the Trovince, or matters of contract between parties in relation to their property or dealings. Although the exercise by the Local Legislatures of such powers may be said remotely to affect matters connected with trade and commerce — unless indeed the laws of the Provincial Legislatures should conflict with those of the Dominion rarliament passed for the general regulation of trade and commerce, — I do not think the Local Legisla- tures are to be dejaived of all jwwer to deal with property and civil rights, Ijecause rarliament, in the plenary exercise of its power to regu- late trade and commerce, may possibly pass laws inconsistent with the exercise by the Local Legislatures of their powers; the exercise of the powers of the Local Legislatures being in such a case subject to such regulations as the L)ominion may lawfully prescribe. The Act, now under consideration, is not, in my opinion, a regulation of trade and connnerce ; it deals with the contract of fire insurance, as between the insurer and the insured. That contract, is simply a con- tract of indemnity against loss or damage by fire, whereby, one party, in consideration of an immediate fixed payment, undertakes to pay or make gootl to the other, any loss or damage by tire, which may happen during a fixed period to specified property, not exceeding the sum uajued as the limit of insurance But by the Act now a.ssailed, I do not understand that any supreme sovereign legislative jiower to regulate and control the business of in- surance in Ontario is claimed. The Act deals only with this contract of indenniity ; it does not jn'ofess to deal with trade or commerce, or to make any regulati(m in reference thereto. It is simply an exercise of the power of the Local Legislature for the protection of property in Ontario, by securing a reasonable and just contract in favor of parties insuring property, real or jiersonal, in Ontario, and deals therefore only with a matter of a loc^il and])rivate nature, — in order to protect parties from being imitosed upon by the insertion of conditions and stipula- tions in such a way as not to be brougiit to the immediate notice of the insured. As the case of Smith v. Commercial Union Insurance Company (33 U. C, Q. B., 69) shows, that the judicial tribunals found that legis- lative protection was required in Ontario against unreasonable and unjust conditions imposed on the assured by the assurers, so, should expe- rience show, that over-insurance were of frecpient occurrence, and led to fraudulent burning, — whereby not only fraud was encouraged, but the JE row Ell. ittevs (!on- Troviuce, (vopevty or 3 of such L trade and ives should the general zn\ Legisla- ,y and civil fex to regu- ut with the rcise of the ject to such a regulation us u ranee, as niply i^' con- y, one party, es to pay or may happen ing the sum jiy supreme isiness of iu- this contract luuerce, or to u exercise of property in or of \)artie3 Hierefore only •dtect parties and stipnla- notice of the ice Company lid that legis- le and unjust Ihouhl expe- le, and led to Led, but the B. N. A. ACT, 18G7 — SECT. 92, § 13, PUOVINCIAL LEGISLATIVE TOWER. 313 neighboring properties of innocent parties wholly unconnected with the insurance were jeopardized — could it be said that it would be ultra viven for the Legislature of a I'rovince, with a view to stop such ])ractice3, to enact that in every case of over-insurance, whether intentional or unintentional, tbe ]iolicy should be void, or to make any other provisions in reference to the contract of insurance, as to value, as would in the opinion of the Local Legislature, prevent frauds and protect property ? Could such legislation be held to be ultra vires, as being an interfer- ence with trade and commerce, because it dealt with the subject of insurance; or, for ]»reventing frauds and perjuries, would it be iiltiu vives for the Local Legislature to enact, that, as to all contracts of insur- ance entered into in Ontario, no insurance on any building or property in Ontario should be binding, or valid, in law or equity, rmless in writing. If the legislative power of the Provincial Legislatures is to be restricted and limited, as it is claimed it should be, and the doctrine contended for in this case is carried to its legitimate logical conclusion, the idea of the power of the Local Legislature to deal with the local works and undertakings, property and civil rights, and matters of a merely local and private nature in the Province, is, to a very great extent, illusory. I scarcely know how one could better illustrate the exercise of the power of the Local Legislatures to legislate with reference to property and civil rights, and matters of a merely local and private nature, tlian by a local Act of incorjwration, whereby, is granted a right to hold or deal with real or personal jjrojierty in a Province, and the civil right to contract, and to sue and to be sued as an individuaJ in reference thereto; and, if a Legislature possesses this power, as a necessary sequence, it must have the right, to limit and control the manner in which the property may be so dealt with, and, as to the contracts in reference thereto, the terms and conditions on whicli they may be entered into — whether they may be verbal, or shall be in writing or whether they shall contain conditions for the protection or security of one or other or both the parties — or to declare tliat the contracting parties may be free to deal, as may be agreed on by them, without limit or restriction. Inasmuch, then, as this Act relates to property in Ontario, and the subject matter dealt with, is therefore local ; and as the contract between tbe parties is of a strictly private nature ; and as the matters thus dealt with, therefore, in the words of the British North America Act, are " of a merely local or private nature in the Province " ; and as contracts are V 314 n. N. A. ACT, 18G7 — sect. 92, § 13, provincial legislative power. matters of civil rights, and breaches thereof are civil wrongs ; ."^nd as only the pro])erty and civil rights in the Province are dealt with by the Act ; and as " property and civil rights in the Province " are in the enumeration of the " exclusive powers of Provincial Legislatures ; " I am of opinion that the Legislature of Ontario, in dealing with tli(;se matters in the Act in fjuestion, did not exceed their legislative powers. In Fuul V. Virgluii (8 Wall. U. S., S. C, 168), Hold : That a State Statute compelling a foreign Insurance Comjiany to take out a license and make a deposit of bonds with tlie State Treas- urer according to the amount of its capital, preliminary to transacting business in the State, is not in conflict with the clause of the Constitu- tion of the United States which declares that Congress shall have power to " regulate commerce " with foreign nations and among the several States. That Corporations are not citizens within the meaning t)f the clause which dechires that " the citizen of each State shall be entitled to all the privileges and immunities of citizens in the several States," and that cor{)orations created in one State have not even an absolute right of recognition in other States, but depend for the enforcement of their contracts upon the assent of those States. jVlr. Justice Field, in delivering the Judi^nicnt of the Court, said : The Corporation being the mere creation of local law, can have no legal existence beyond the limits of the Sovereignty where created. As said by this Court in Bank of Augusta v. Earlc, " It must dwell in the place of its creation, and cannot migrate to another sovereignty." The recognition of its existence even by other States, and the enforcement of its contracts made therein, depend purely upon the comity of those States. Having no absolute right of recognition in other States, but depending for such recognition and enforcement of its contracts upon their assent, it follows, as a matter of course, that such assent may be granted upon such terras and conditions as those States may think pro- per to impose. They may exclude the foreign corporation entirely, they may res- trict its business to particular localities, or they may exact such secu- rity for the performance of its contracts with their citizens as in their judgment will best promote the public interest. The whole matter rests in their discretion. In Ducat v. Chicago (10 Wall. U. S., S. C, 415), Held : That a license granted by a State to a foreign Insurance Company, ,'E POWKIl. ,iid as only ith by tUe ave iu the ituves -, 1^ witli tluise ive \)ONVcvs. Company to State Treas- , transacting ,he Constitn- s shall have d among the r of the clause entitled to all 1 States," and absolute right ement of their ,, suid : [v, can have no ■vc created. As ,st dwell in the :eignty." '^^^^ he enforcement jomity of those ,er States, but icontracts upon assent may be |may think pro- they may res- iact such secu- lens as in their whole matter mce Company, B. N. A. ACT, 18G7— SECT. 92, § 13, PROVINCIAL LEGISLATIVE POWER. 315 on condition of the Company paying a tax of two per cent, on its pre- miums or gross receipts, was not in conflict with the Constitution of the United States. Mr. Justice Nelson, in delivering the opinion of the Court, said ; " The i)ower of the State to discriminate between her own domestic corj)orations and those of other States desirous of transacting Ijusiness within her jurisdiction is clearly establislied ; as to tlie nature or degree of discrimination, it belongs to tlie State to determine, subject only to such limitations on her sovereignty as may be found in the fundamen- tal law of the Union." (Following the decision in I^aul v. Vhyinia, 8 WaU. U. S., S. C, 168.) In liailro'idC'impaiii/ v. Murylnnd (21 Wall. 45G), Held : That a stipulation in the charter of a Kiiilroad C(jmpany, that the Comi)any shall pay to the State a portion of its earnings, is not repug- nant to the United States Constitution, it being, a contract by tlie Com- pany, and different in principle from the imposition of a tax on tlie movement or transportation of goods or persons from one State to anotlier. Ii) Howe Machine Co. v. Walker (35 U. C, Q. B., 39), Hekl : That a foreign corporation has a right to make contracts and carry on business in the Province of Ontario. (Richards, C. J., in delivering the Judgment of the Court,*gave an elaborate review of the English and United States authorities.) In Allison v. Robinson (3 Pugs. 103), the Supreme Court of New Brunswick held : That a business transaction of a foreign Insurance Company was illegal and void, on the ground that it violated the Provincial Act (19 Vic. c. 45), which prohibits any foreign Insurance Company from doing business in the Province without first filing a certificate giving certain iiifonnation, required by the Statute, as to their business affairs. Clunidii're Gold Mining Company & Dtsharats et al. (17 L. C J. 275), Held : That by the laws of the Province of Quebec all corporations are disqualified from acquiring Real Property without first obtaining the Royal or Legislative permission. In Beard v. Steele (34 U. C, Q. B., 55), Held : That the Ontario Statute, 33 Vict. c. 19, amending the law relating I to bills of lading, and declaring the rights and liabilities of parties 316 B. N. A. ACT, 1807 — SECT. 92, § 13, PROVINCIAL LEGISLATIVE POWER. under those instruments of trnflic, was not an invasion of the jurisdic- tion of the Federal I'arhament, vrhich alone has the j)ower to re«,'ulate trade and commerce. In Attorney General v. The Niagara Falls Bridge Co. (20 Gr. Ch. 35), Held: That the Provincial Attorney General, and not the Attorney General of the Duminiun, is the })roper party to file an information, when the complaint is not of an injury to property vested in the Crown, hut relates to a violation of the rights of the public of Ontario, even if those rights are created by an Act of the Dominion rarliament. That in the case of a public nuisance caused by an illegal obstruction of a railway, the Provincial Attorney General is the proper officer to ])rosecute in a Court of law. In Kirtland v. Uotchkiss (100 U. S., S.C. 401), Held: That the U. S. Constitution does not prohibit a State from taxing a resident citizen for debts held by him against a non-resident, evidenced by his bunds, ])ayment whereof is secured by deeds of trust or mort- gages upon real estate in another State. The debt, although a species of iutangil)le property, if not for all other purposes, may for the purposes of taxation be regarded as situated at the domicile of the creditor. In Taylor v. Porter et al. (4 Hill 140), Held: That the Legislature of the State of New York has no power to take private property for private uses. It has no power to take the projierty of A. and give it to B. either with or without making compen- sation. Tlie Peoj)le v. Supervisors of Westchester (4 Barb. G4), Held : That vested rights in property acquired by virtue of an Act of the Legislature of the State of New York, cannot be divested or destroyed by such Legislature, by a repeal or modification of the Act. In The Lottawanna (21 Wall. 558), Held: That the Congress of the United States, under the power to regulate commerce, has authority to establish a lien on vessels of the United States uniform throughout the whole country, in favor of persons fur- nishing supplies to vessels, but that the States, until Congress acts, may continue to legislate on the subject, though the contract to furnish | the supplies, is a maritime contract, which can only be enforced by pro- ceedings in rem in the District Courts of the United States. TIVK rOWEU. the jvniHtlic- r to reyulate I Gr. Ch, 35), the Attorney i infoTiuiition, vesteil in the lie of Ontario, i,n Vailiiuncnt. by an illegal ,1 is the proper ,te from taxing ident, evidenced trust or niort- by, if not for all rded as situated lias no power to ,Nver to take the uiaking compen- leld : of an Act of the ted or destroyed } Act. Ls lower to regulate of the United ir of persons fur- Congress acts, ntracttofurnislil enforced by pro- tates« B. N. A. ACT, 18G7 — SECT. 92, § 13, rUOVINX'IAL LEGISLATIVE POWER. 317 In Church and Mhldhmla (21 L. C. J. 310), S. C, Moutrenl, it was held : That tlie members of the Executive Council are notijersoiially liablo in warranty, to a purchaser, for having advised tlie execution of a deed of sale by tlie Crown of certain real jjroperty which the Crown had no riglit to transfi'r. In theory of law, the jud<,Miieut and decision upon every matter of State, is tliat of the Sovereign, though every minister is directly responsible to Parliament for liis conduct in office, and for the advice he tenders to his Sovereign. In Normmul and La Compagnic de Navigation da St. Laurent, Held by the Q. B. on Ttli MiU'cli, 187D, revcising decision of the Superior Court, 4 Q. L. R., niited ante p. 143: That the I'rovincial Governments have the rij^ht to grant letters patent for the use of riparian lots, provided tliat the use of such lots does not interfere with the navigation of the river, which is controlled by the Dominion authorities exclusively. Tlie text of the judgment is as follows : Considering that among the powers conferred on the Governments of the several Provinces, by sect. 92 of B. N. A. Act, 18G7, is that of administering and selling the public lands belonging to the Province, and that this right includes that of selling and disposing of the ripa- rian lots of land which form part of the territorial domain of the Provinces ; And Considering that the Government of the Province of Quebec has not exceeded its powers in granting to the appellant (Xormand) the letters patent of the 1st September, 1873, and that there is error in the judgment rendered by the Superior Court at Three llivers on the ICth February, 1878, which annulled and set aside the said letters patent ; ]jut Considering that the said letters patent conferred no right of a nature to diminish the advantages of using the River St. Maurice for the ends of navigation, the control of which navigation belongs to the Dominion Government exclusively ; And Considering that the appellant has no right to claim an indem- nity from the Company respondent for the wintering of their vessels in that part of the River St. Maurice comprised in said letters patent ; Considering, moreover, that the said letters patent could not be set aside on the issue raised ; that the appellant has not proved having suffered damages from the acts of the respondents, and that there is 5 CT m 318 11. N. A. ACT, 18G7— SKCT. 92, § 14, I'UOVINCIAL LWaSI.ATIVE I'OWFUl. no error in that i)art of tho jiulgnuMit aiii'oaUul froni, tlio Court, reform- ing the said judgiiK-nt, (flashes and annuls that i)art of tho saitl judg- ment wliioli sets aside the said hitters patent, and confirms the judg- ment as to tlic remainder. In roinul V. Tiirc/c (05 U.S., S. C, TO.'}), wlicrc it waw hcIJ tliiit in Uie nbsciict! of Fcilcral li'^islition boaiin-^ on thi; case, a Statute of a Stitc which iiutliorizi's tlie eicetion of a daiii acnws a navifjable river, wliieh is wholly witliin her limits, is noi unuoiistitutiunal, Mr. Justice Miller, in delivering the opiuioa of the Court, said : The princijde established by the decisions to which we liave refer- red, is, that in regaid to the powers conferred by the Commerce chaise of the Constitution, there are some, which from their essential nature are exclusive in Congress, and which the States can exercise under no circumstances, while there are others, which from their nature may be exercised by the States until Congress shall see proper to cover the same ground by such legislation as that body may deem appropriate to the subject. 14. The Adininistratioii of Justice in the Pro . Ijice, including the Constitution, iVliiintenaiico, and Organization of Provincial Courts, botli of Civil and of Criminal Jurisdic- tion, and including Procedure in Civil Matters in those Courts. In LniKjhns v. Valln (3 Can. S. C, p. 1), it was held by the Supreme Court of Canada : That the exclusive power of legislation given to Provincial Legisla- tures by sub-sec. 14 of sec. 92 B. N. A. Act over procedure in civil matters, means procedure in civil matters within the powers of the Provincial Legislatures, and does not extend to the regulation of the procedure in controverted elections or bankruptcy, which belongs to the Federal Parliament. In Re Niagara Election case (29 U. C, Q. B., 279), Gwynne, J., in delivering judgment, said : " These words (jyrocedure in Civil matters in those Courts) plainly apply, as it appears to me, to the procedure in those civil matters over which the preceding paragraph (the 13th) gave to the Provincial Legislature exclusive control, namely, ' property and civil rights in the Province,' and do not affect the procedure in the case before us, which, being a matter over which the Provincial Legislature has no jurisdic- tion, it could not assume to prescribe a procedure relating thereto." VK roWKR. n. N. A. ACT, 1807 — SECT. 92, § 14, PKOVIXCIAL LKOISLATIVK I'uWKU. 319 It, reforra- siiiil jiitlg- s the jmlg- tliiit in ilie StiU; wliich liolly within ; the opinion have refer- iicrcc cl:iU3e uliiil Uiiture ,se uiuler no ture may be to cover the [)propiiate to Pro. iiice, L-ganization \\ Jurisdic- '8 in those the Supreme iicial Legisla- 1 1 lire in civil )0wers of the ilation of the belongs to the }wynne, J., in ourts) plainly matters over le Troviucial rights in the (ore us, which, Is no jiirisdio thereto." In The Qurrn v. Cmtr, L. \l \, V. C. 509 (1S"2), th.'ir Lonlshipft, Bustiiiiiiu',', in tlii.s rcspiict, llio Court ol' Quclu'h Beiicli lor tlic I'roviucc of Qiu'hcc ; Hi'ld, that tlie con«titution of the Court of the Fire Marslial, by th(^ (^ii(!b('c Statutes, 31 Vict. c. 31 and 32 Vict. c. 29, wiili the powers ^'iveii to it, was witliin the coinpeteiicy of the rroviiicial Legislature. In ex parte Diincmi (16 L. C. J. 190), Dunkin, J., held: Tliat the Pctllar clauses of the (Quebec License Act (34 Vict. eh. 21) taking away the right of coiiorrri, do not conflict with the I'.ritish North America Act of 1807, which assigns to the rarliiinicnt of Canada the exclusive right of legislation in reference to all matters coming within the criminal law, including the procedure in criminal matters. In l*mfc V. Shiehh, Coniwnii Pleas, Ontario (\6 Can. Law. J. 212), lu-ld : That the acts referred to in sec. 136 of the Insolvent Act, arc not by that section constituted crimes, punishable as such under that and the following sections. That the right of the Provincial Legislature to direct the civil }iro- cednre in the Provincial Courts has reference to the procedure over which the Legislature has power to give those Courts juris-diction, ami does not in any way interfere with or restrict the right or p(jwer of tlie Parliaiuent of Canada to direct the procedure to be adopted in cases over which Parliament has jurisdiction. In re Centre Wellington Election (44 U. C, Q. B., 132), held (by a ununi- niou-i Court). That the Court of Queen's Bench, Out., has no jurisdiction to issue a mandamus to the Junior Judge of the County of Welhngton to proceed with the recount of votes (under 14 \ic. c. G, sec. 14) at ail election of a member for the House of Commons of Canada ; that the right to deal with all such matters belongs to the House of Commons, except so far only as the Parliament of Canada has expressly devolved on the Courts certain express duties and powers respecting elections ; and this proposed interposition by mandamus is not one of those so devolved. The House of Commons retains all powers that it has not expressly given up. In rx parte James Smith et at. & Hempstead (16 L. C J. 140; S. C, 1872), Held: That under the Act of the Dominion Legislature, 31 Vic. cap. 76, 320 B. N. A. ACT, 1867 — SECT. 92, § 15, PROVINCIAL LEGISLATIVE POWER. tlie Superior Court is authorized to order the attendance of a witness to be examined under a commission rogatoire issued out of a Foreign Court. Torrance, J., said : "This is a matter of international comity, and the Act is one which the Dominion Parliament might very properly pass. ^Matters of international comity are more under its control than under the control of tlie Legislature of Quebec." §15. The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section. Poitras and The Corporation of the City of Quebec, held by Superior Court, Quebec, Caron, J. (9 R. L. 531) : That the Quebec Legislature, with a view of executing its own laws, has no authority to order imprisonment at hard labor, its power being limited to inflict punishment by fine, penalty or imprisonment only, and not by hard labor. This was a writ of prohibition ordering the Corporation of Quebec to abstain from executing a conviction of the Itecorder, condemning the petitioner to pay a fine of S-iO and costs, and in defiiult of payment to be imprisoned during three months at hard labor, for having kept his tavern open u^'On a Sunday. The conviction was set aside on the ground above mentioned. But the Court went frrther — one of the reasons given, being in the following terms : " Coiisidering that the Quebec Legislature has not the power either to prohibit or limit the sale of intoxicating liquors, in any manner whatever, but is only author- ised to impose licenses, for the purpose of raising a revenue for Pro- vincial or municipal objects, the Court grants the demand of the peti- tioner. The reporter, in a note, mentions a case of Collopy and the same Cor]ioration, where the same views have been expressed in a judgment by Justices Stuart and jMcCord, but not formally recorded, the case being still pending. R>g!n>i V. Bnardman (30 U. C, Q. B. 553). The Ontario Le<»inlature passed an Act, 'i2 V. c. 32, declaring (s. 39), " that any person, who, having violated any of tlie provisions of this Act, shall compromise, compound or settle, &o., &c., the offence, with the view of preventing a complaint or conviction, shall be guilty of an offence under this Act, and bo imprisoned at hard labor in the common three months. The defendaal being convicted of com- gaol ity ;VE POWER. ' a witness ' a Foreign omity, and perly pass. ihan under ;nalty, or nee made le Classes 3erior Court, ng its own r, its power iprisouuient I of Quebec lemning the payment to ing kept his side on the one of the g that tlie )r limit the nly author- ue for Pro- )f the peti- d the same a judgment id, the case lature passed vin;j; violated tile, &c., &c., all be guilty the coiiinioa ted of cora- B. N. A. ACT, 1867 — SECT. 92, § 15, PROVINCIAL LEGISLATIVE POWER. 321 poundin<; .ouch an oflFence, and sentenced to three months imprisonment in the common gaol, was brousiht up by Tlabens Corpiix, and his discharge was movod, on the LTOund that the Local Le!i;;islature of Ontario had no power to enact such a provision, which amounted to creatine; an offence punishable as above, a sub- ject exclusively a«si:vi laws affecting all matters of a merely local or }irivate nature in the Province. It is not a fpiestion of clashing, the powers of the Local Legislature and of the Dominion Parliament are perfectly distinct. Each of the Legislatures makes the laws of procedure affecting the criminal laws which they enact respectively. § 16. Generally all Matters of a merely local or private Nature in the Province. See ante, cases under sub-sections 13, 14, 15 and 16. The peculiar institutions of each Province are preserved from Federal in- terference by this Section. On the 2nd Ptcading of the B. N. A. Bill in the House of Lords (19th February, 1867), the Karl of Carnarvon said: A Legislative L^nion, is, under existing circumstances impracticable. The jMaritime Provinces are ill-disposed to surrender their separate life, and to merge their individuality in the political organization of the general body. It is in their case, impossible, even if it were desirable, by a stroke of the pen to bring about a complete assimilation of their institutions to those of their neighbors. Lower Canada, too, is jealous, as she is deservedly proud, of her ancestral customs and traditions ; she is wedded to her peculiar institu- tions, and will enter this Union only upon the distinct understanding that she retains them. The 42nd Article of the Treaty of Capitulation in 17C0, Avhen Can- ada was ceded by the Marquis de Yaudreuil to General Amherst, runs thus : Les Franjais et Canadiens continueront d'etre gouvern«5s suivunt la Coutume do Paris et les lois et usages <5tablis {xjur ce pays. 324 B. N. A. ACT, 1867 — SECT. 93, PROVINCIAL LEGISLATIVE POWER. Lpprislation res- pecting Kduca- tion. I The Coufiime de Paris is still the accepted basis of their Civil Code, and their national institutions have been alike respected by their fellow-subjects and cherished by themselves. And it is with these feelings and on these terras that Lower Canada now consents to enter tliis Confederation. Educaiio?i. 93. In and for each Province the Legislature may exclu- sively make Laws in relation to Education, subject and according to the following Provisions: — § 1. Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union : § 2. All the PowerSjPrivileges, and Duties at the Union by Law conferred and imposed in Upper Canada on the Separate Schools and School Trustees of the Queen's Roman Catholic Subjects, shall be and the same are hereby extended to the Dissentient Schools of the Queen's Protestant and Roman Catholic Subjects in Quebec: § 3. Where in any Province a System of Separate or Dis- sentient Schools exists by Law at the Union, or is thereafter established by the Legislature of the Province, an Appeal shall lie to the Governor General in Council from any Act or Decision of any Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of the Queen's Subjects in relation to Education : § 4. In case any such Provincial Law as from Time to Time seems to the Governor General in Council requisite for the due Execution of the Provisions of this Section is not made, or in case any Decision of the Governor General in Council on any Appeal under this Section is not duly executed by the proper Provincial Authority in that Behalf, then and in every such Case, and as fjir only as the Circumstances of each Case require, the Parliament of Canada may make remedial Laws for the due Execution of the Provisions of this Section, B. N. A. ACT, 1867— SECT. 93, PROVINCIAL LEGISLATIVE POWER. 325 and of any Decision of the Governor General in Council under this Section. Ex parte Renaud et ah (1 Pugs. 2*73 j 3 R. C. 117.) The litigation in this case arose upon petition to set aside an assess- ment, on the gi'ound that the New Brunswick Legislature had no power to enact the Common Schools Act of 1871, under which the assessment was levied. Tlie Legislature of the Province of New Brunswick, in 1871, passed the Act entitled "The Common Schools Act, 1871," which rei)ealed the School Act of 1858 (21 Yic. c. 9), entitled an " Act relating to Parish Schools," under which the Common School system of the I'ro- vince of New Brunswick was carried on at the time of Coufedtsration. It was contended on the part of the petitioner that the Common Schools Act of 1871 by repealing the School Act of 1858, and enacting that all Schools conducted under the Act of 1871 shall be non-sectarian thereby dei)rived Homan Catholics not only of the right which the Act of 1858 had secured to them, of having the Louay Bible read by their children in the mixed schools, but also of the privilege which they had under that Act, of creating schools of a character exclusively lioman, Catholic in districts where the population was entirely Boman Catholic. Also, that the Board of Education under the Act of 1871 promul- gated a Eegulation, that " Symbols or emblems distinctive of any national or other society, political party or religious organization, shall not be exhibited or employed in the school room, either in its general arrangement or exercises, or on the person of any teacher or pupil." And therefore, that the Common Schools Act of 1871 does "prejudi- cially affect " rights and privileges which were secured to Roman Catholics as a class in respect to Denominational Schools, and is there- fore unconstitutional, as being in conflict with ss. 1 of sec. 93 of B. N. A. Act. And also that the omission in the Common Schools Act of 1871 to secure to all children — whose parents do not object — the reading of the Bible ; and that when read by Roman Catholic children, if recjuired by their parents, it shall be the Douay version without note or com- ment, prejudicially affects rights and privileges under ss. 1 of sec. 93, B. N. A. Act. It was held by the Court : That, neither the School Act of 1871, nor the School Act of 1858, 326 B. N. A. ACT, 1867 — SECT. 93, PROVINCUL LEGISLATIVE POWER. iiii w which it repealed, provided for the establishment of Denominational Schools, and that neither of those Acts conferred any legal rights or privileges upon any class of persons or upon any one Denomination of Clrristiaus, in the government or control of the schools organized thereunder ; and that the schools established in pursuance of the Act of 1858 were not Denominational, and therefore that the School Act of 1871, which declares that the schools conducted under its provisions shall be non-denominational, is not ultra vires of the Legislature of New Brunswick as prejudicially affecting any legal right or privilege with respect to Denomimitional Schools which any class of persons had at the Union, or as being in conflict with any of the provisions of sect. 93 of the B. X. A. Act of 18G7. That if the right does exist of creating schools of a character exclusively Roman Catholic, and of using religious or national emblems in the exercises of the school, or upon the person of the teacher or pupil, and of having their own translation of the Bible read iu mixed schools by the children of Eoman Catholic parents, that this right is not taken away by any provisions of the Act of 1871, as it may still exist, if it is a right which legitimately comes under sec. 93 of the B. N. A. Act ; for, if such a right did exist under the Scliool Act of 1858, it would then become the duty of the Board of Education, i nder the Common Schools Act of 1871, to secure, by regulation, just what the Board of Education were bound to secure under the School Act of 1858. That if this right did exist under the School Act of 1858, and was protected by the B. X. A. Act of 1867, and the Board of Education neglected to secure this right by proper regulations, or if any improper regulations were made under their authority, this could not afl'ect the constitutionality of the Common Schools Act of 1871, althougli it might then be a case coming within sec. 4 of sect. 93, providing for remedial legislation by the Parliament of Canada. In delivering the jud^^mcnt of the Court, Cliief Justice Ritchin said : The Regulations are not before us in such a way that we can deal with them, and we are not called upon to express any decided opinion as to their validity, because the constitutionality of the School Act of 1871 cannot in our opinion be affected by any regulations made under it — there being nothing unconstitutional in the Act itself. As in this case there was no legal right under the School Act of 1858 to have Denominational schools or teachings, there is no injury in legal contemplation committed by the Legislature dealing with the ■^4 ;. : POWER. iminational il rights or nomination organized of the Act hool Act of provisions gislature of )r privilege persona had .ons of sect. \ character al emblems teacher or ,d in mixed t this right , as it may 3. 93 of the Act of 1858, 1, I nder the st what the hool Act of 1 8, and was Education ly improper )t affect the lalthough it )viding for said : /Q can deal led opinion pool Act of lade under lool Act of injury in with the B. N. A. ACT, 1867 — SECT. 93, PIIOVINCIAL LEGISLATIVE POWER. 327 question in such a manner as to prevent that possibility from arising ; and consequently there is no right to have the action of the Legislature abrogated. The inability of a class of persons to have under the Common Schools Act, 1871, that which, possibly they might under certain exceptional an;' accidental circumstances have had, under the School Act of 1858, but which, they had no right to insist on having, is a damage not occasioned by anything which the law esteems an injury — it is a kind of damage termed in law damnum absque injuria, and for which there is no remedy. S<'c,To(M on Parliamentary Government in Col. (pp. 346-352) and Dominion Sessional Papers of ]877, No. 89, for a history of the controversy on the questions involved in this case, and of the action of the Doaiiniou Govornuient in reference thereto. Discusf'on in the Imperial Parliament on this section. On the 19th F<:bruary, 18()7, when tlie B.N, A. Bill was under discussion in the Hnuse of Lords, the Earl of Carnarvon ixi)ressed himself on the question of Kducation as follows : — Lastly, in the 9ord clause, which contains the exceptional provi- sions to which I referred, your Lordships will observe some rather complicated arrangements in reference to education. I need hardly say that that great (piestion gave rise to nearly as much earnestness and division of opinion, on that, as on this side of the Atlantic. This clause has been framed after long and anxious controversy, in which all parties have been re])resented, anil on conditions, to which all have given their consent. It is an understanding, which, as it only concerns the local interests affected, is not one that Parliament would be willing to disturb, even if, in the opinion of Parliament, it were susceptible of amendment ; but I am bound to add, as the expres- sion of my own opinion, that the terms of the agreement appear to me to be equitable and judicious. For the object of the clause is to secure to the religious minority of one Province the same rights, privileges and protection which the religious minority of another Province may enjoy. The Eoman Catholic minority of Upper Canada, the Pro- testant minority of Lower Canada, and the Koman Catholic minority of the Maritime Provinces, will thus stand on a footing of entire equality. But, in the event of any wrong at the hand of the local majority, the minority have a right to appeal to the Governor General in Council, and may claim the application of any remedial laws that may be necessary from the Central Parliament of the Confederation. 328 B. N. A. ACT, 18G7 — SECT. 93, PROVINCIAL LEGISLATIVE POWER. On the 22nd of February, 1867, the Earl of Shaftesbury presented to tlie House of Lords, petitions, from the Governors, Princip-il, and Fellows of the McGill College, Montreal, from the Provincial Associiition of Protestant Teach- ers of Lower Canada and others, directing attention to several provisions of the Bill, and especially to the 9Hrd clause, which, in their operation they feared would have the effect of subjecting them to the will of those possessing the mujo- rity of tlie representation, and they desired the introduction of a clause for their security. The Earl of Carnarvon in answering these petitions, while showing that the fear expressed had been attended to by the 80tii clause, which provided that no change should be made in the districts which returned the Protestant minority without the consent of the members returned by those districts, stated : To introduce the clause asked for, would violate one of the princi- ples upon which the Bill was baseil — namely, that the Local Legisla- tures should have the power of amending their own Constitutions. . . . He could only say further that if he were to accept an amend- ment based on the petitions, it woidd be dithcult to resist other amend- ments of an analogous character put forward by opposing interests. In fact, only a few minutes before he entered the House, that day, he had received a paper setting forth the views of a strong and very respectable Roman Catholic minority, who feared that the 93rd clause would not extend to them the protection which they conceived to be their due. His answer to them, as to his noble friend, must be, that to comply with their wishes would be to depart from a compact entered into by the representatives of all shades of religious and political opi- nions. If the compromise were departed from in favor of one party, it must inevitably be departed from in favor of another. In Board of School Trustees v. Grainger et ah (25 Gr, Ch. 579), Held : That Local Legislatures may legislate as to separate schools pro- vided that the legislation is not such as prejudicially affects the rights or privileges theretofore possessed by such schools, and may pass laws interfering with the position or mode of election, of trustees of separate schools as settled by Statute prior to Confederation. Blake, V. C, in delivering the Judgment of the Court, said : I cannot attach any weight to the argument that, under the words, "an appeal shall lie to the Governor-General in Council from any Act or decision of any Provincial authority " (sub-section 4), the persons interested in separate schools have the right to present such a difficulty as the present, to the Governor General in Council ; the mean- ing to be attributed to the word " decision " is explained by the wordg E POWER. lentcd to the 3II0WS of the 3Stant Teach- asions of the I they feared ing the m:vjo- ause for their iwinp; that tlie I'ided that no itant minority tated : if the pvinci- ,ocal Le^'isla- stitutions. pt an amend- other amend- insz interests. that day, he ng and very e 93rd clause )nceived to be ist be, that to ipact entered political opi- one party, it 579), Held : schools pro- [cts the rights liay pass laws les of separate Lt, under the 1 Council from action 4), the Iresent such a lil ; the mean- Iby the wordg B. N. A. ACT, 18G7 — SECT. 94, UNIFORMITY OF LAWS, &C. 329 which surround it. The word " Act" which precedes the word "deci- sion," and the words " of any Provincial authority," which follow it, shew that the matters contemi)lated as those which should be presented to the sujtreme authority are such as are Acts, or theii eijuivalents and not the every-day detail of the working of a school. Rigina v. Colh'fjc of P/ii/.sicuins ami Sitrrironii (44 U. C, Q. B., 5G4), held by a unanimous Court : That a medical practitioner registered in England under the Medical Act (21 and 22 Vict. c. 90, and 31 Vict. c. 29) which j.rovides that every ])erson so registered should l>e entitled to i»ractice ^Medicine and Surgery " in any part of Her Majesty's Dominions," is entitled without examination to practice in the Province of Ontario on payment of the })roi)i.'r fees. That the Imperial Parliament can legislate for the Provinces not- withstanding any ])reviou,s enactment or alleged surrender of the power of exclusive legislation on any subject. That the exclusive right of legislation upon education granted by the B. N. A. Act to the Provincial Legislatures means exclusive as op[)osed to any attemjjt to legislate by the Dominion Parliament. A Bill to incorporate the Christian Brothers as a Coinpuny of Teaehors for the Dominidn, wliieh was jnesontcd to the Fede'Val P.iiiiainent in 187'!, was prc- i'erroil by tlie yoiiato to tin; Su[)reiiR' (^mrt of Caiiad;!. [t wiis reported by the Supreme Court to bo uneoustitutioniil and iiltni ///vn of the Foileril Paili;tnu'nt as infringing upon the powers of the Provineial Legislatures, in wiioiu by tliis i^ection is vested the exclusive control over education. (Senate Journal of 187t), p. 155.) Umform'dif of Laivs in Ontario, Xotvt Scotia, and New Bvunsu'ick. 94. Notwitli.staudiiig anything in this x\ct, tlio Parlia- Lopisiation tnr ment oi I^anada nitiy niako Provision lov tlio unitovnuty ot i.iusin i'i,r,.f all or any of the Laws relative to Property and Civil Rights in Ontario, Nova Scotia, and New IJrnnswick, and of the Procedure of all or any of the Courts in those Three Pro- vinces, and from and after tlie passing of any Act in that Behiilf the Power of the Parliament of Canada to make Laws in relation to any Matter comprised in any such Act, shall, notwithstanding anything in this Act, be unrestricted ; but any Act of the Parliament of Canada making Provision for such Uniformity shall not have effect in any Province unless w 330 n. N. A. ACT, 18G7 — sect. 95, A(iI!rcULTUKE — 90, JUDICATUHE, Concurrpnt I'owcrs of Lcgisliition roipoctinj? ARricultur:', Appointment udges. and until it is adoptud and enuctcd us Law by the Logisla- tiire tliorool". Jn I'lihi/ ft ill. V. Iiin/)rr (Sunbiny Kicction Petition, Supremo Court of N. B., not yet reported,), Duff, J. rttuiiirked : liy (■(illiiting section 92, sub-soctictu 13, witli section 94, we will be un'ordcd fuiotlior illustnition of the niiuincr in which piissuges seeniin<,'ly invconcilablu at first sight, will he foniul ])erfectly consistent on a closer examination. I?y the former, tin; exclusive authority to legislate on the sul»jects of " I'roperty and ('ivil liights in the Pro- vince " is given to the Provincial Legislatures, liy the hitter, the Parliament of Canada isanthorized to make provision for the uniformity of the laws relative to Property and Civil Rights in Ontario, Nova Scotia, and New lirunswick. Such legislation, however, would manifestly conflict with the power given to the Provincial Legisla- tures by sub-section 13, were it not that section 94 jn-ovidcs that no law making provision for such uniformity shall go into elVect, in any Province, until it is adopted and enacted as a law by the Legislature thereof. Therefore, it was, that in the Petition of Ivight Act (38 Vic. cap. 12) it was expressly provided that none of the Provincial Courts should have cognizance of any matter under that Act, " unless the Legislature of the Province of which the same is a court shall have empowered the said court to administer the rights by this Act conferred in accordance with the procedure herein detined." Ayriculttire and hiiviitjratwn, 05i In each Province the LogislatLire may make Laws in relation to Agriculture in the Province, and to Immigration into the Province ; and it is hereby declared that the Parlia- ment of Canada may from Time to Time make Laws in relation to Agriculture in all or any of the Provinces, and to Immigration into all or any of the Provinces ; and any Law of the Legislature of a Province relative to Agricul- ture or to Immigration shall have efiect in and for the Province as long and as far only as it is not repugnant to any Act of the Parliament of Canada. See aji^e Sect. 91, p. 114. VIL— JUDICATURE. 96. The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, TUUE. D. N. A. ACT, 1807 — SECT. 96, JUniCATURR. 331 ,0 Court of )4, Nvc will y cousistont ,uih«)vity to in llie Tro- j lattor, the e uuit'ovmity itiivio, Nova ivev, would icial lA'i^isla- ailc^ that no ciVect, in any le Legislature , Act (38 Vic. lie I'voviucial Act, "uuless a court shall Its by this Act d." Lke T.aws in llinmigration ,t tUo Parlia- ke Laws in lovinces, and [es ; and any to Agricul- land for the •epugnant to Ibe Judges of icli Province, exc{'[)t those of the Courts of Probate in Nova Scotia and Now Brunswick. Ki'iit ill Ills ComiucntJirifis (vol. 1, p. 453) quotes ns follows from Uk; decision (if tiic II. S. Supr. Court in Murbury v. Midison (1 Criuich 177) as finally .setiliiis; tlic (|iicMii>n as to the coinpotency of the Courts to pas.s upon the constitution- aliiy of tlu! Act.s of the Stiite LeiiisLiturcs : — 'riie powers of the L(!<,M.slaturc are defined and liinitiid by a written Constitution. liiit to what purpose is that limitation, if these limits may at any time be passed ? The distinction between a CJovernment with limited and unlimited powers, is abolished, if tho,se limitations do not confine the persons on whom they are imposed, and if acts pro- hibited and acts allowed, are of equal obli^'ation ; if the Constitution does not contr(d any legislative Act repugnant to it, then the Legis- latme may alter the C(justitution by an ordinary Act. The theory of every (iovernment with a written Constitution, forming the funda- mental and paramount Law of the nation, must be, that an Act of the Legi.slature repugnant to the Constitution, is void ; if void, it cannot bind the Courts, and oblige them to give it effect ; for, this wouhl lie to overthrow, in fact, what was established, in theory, and to make that oi)erative in law which i.s not law. It is the province and the duty of the Judicial Department to say what the law is, and, if two laws conflict with each other to decide on the oi)eration of each ; so, if the law be in opposition to the Constitu- tion, and both apply to a particular case, the Court must either decide the case conformably to the law, disregarding the Constitution, or con^ formably to the Constitution, disregarding the law. If the Constitu- tion be superior to an Act of the Legislature, the Courts must decide between these conHicting rules ; and how can they close their eyes ou the Constitution, and see only the law ? In lie Hiidiml (13 Jur. p. 1, p. 6-il), held by their Lordships of the I'rivy Council : That the Crown can by Letters Patent give to one Judge precedence over other Judges in the Court of Queen's Bench, Montreal. Although a majority of the Judges of the Court of Queens Bench for the District of Montreal were of opinion, that the rank of a Judge being an incident of his office, it was not in the power of the Crown to deprive him of that, — Tho Ontario Acts 32 Vict. c. 22 respecting County Courts, and 32 Viet, c. 1 (passed in 1869), as fur as it affects the salary of the Jud-jes of the Superior Courts providing for the tenure of oflBco, increase of salary, and removal of 332 U. N, A. ACT, 18G7 — SHUT. U7-1U1, JUIUCATUKE. Solt'Ctlon of .liiilK''!' t, an Act to make further provision in regard to these two Courts, and also the amendinir Act 42, V. c. 39. Previous to the passinj; of these Acts, the same Parliament had passed tiie 34 and 35 Vict. c. 10, an Act intituled : '• An Act to make better provision for the tri;d of controverted elections of Members of the House of Coiiiiuons, and respecting m itters connected therewith ; " the effect of which was to trans- n. N. A. ACT, 1807— SECT. 101, JUmCATUUE. 333 the opinion iiiciti).'i!«tcMit altni iin» vil KvM^ \ the I'lo- e unilorMU itod by tl»o .'ctivc liars be selected bold OiVice y the Gover- orCoiiunons. iiou« of tlu' >uvts Cexcei)t Brunswick), the JiKkes mil be tixe>l vitbstanding ovide lor the I' a General blislinient of ration ol tb^^ J L»aiVi:imciU p:i8-"'("l [t uiul ii Curt of an Act to make luendiii;4 Act 4-, [t li;id passed the better provision ise of Coiii'.non?, lich was to trans- fer tlie trial of Hiich controvcrteil clictions, from the npii()r ('mirts of law exi.»tiii^ in the K-vcral I'roviiiceN, from wliieli ('diiit-', ail Apjieal was uraiited to tlie Supreme Court, by hect. 48 of the SiiprciiH! Cdurt Aet, ;{8 V^ict. c. 2. Tin- ciMi^titittioii (lily of that Act ha.^ been fully sustained by the Supremo C"Uit of (!aiiada in Vulin v. Lninjloi* (3 Can. S. C. l.'i). liiteliie, C. •/., in the course of his judgment in that case, remarked : Tiiiit in England, bi^foiv 1770, controverted elections were tried and di'teriuined by the whole House of Connnons, or, for a time, by special Coniiiiitlees. . . . This was succeeded by the (Ireuville Act, the |irinciple of which was, to select by lot, Committees for the trial of Election Petitions. This Act in 1773 was made perpetual. . . In l.S3'.t, an Act was passed (Sir Robert Peel's Act) establishing,' a new system upon ditt'erent principles, and it was not till 1868, after Con- federation, that the jurisdiction of the House of Connnons in the trial of controverted elections was transferred by statute to the Courts of law. In nc/>,rrecbule their Lordsliijjs from considering whether it was ever intended by the Imperial Parliament, in the scheme of their legislation, to create a tribunal which should have as one of its incidents, the liability to be reviewed by the Crown under its Prerogative ... In the opinion of their Lordships, adverting to these considerations, the 90lh section, which says that the judgment shall not be susceptible of Appeal, is an enactment which indicates clearly the intention of the Legislature under this Act — an Act wliich i« assented to on the part of the Crown, and to which the Crown therefore is a party — to create this tribunal for the purpose of trying election petitions in a manner whicli should 334 B. N. A. ACT, 1867 — SECT. 101, JUDICATUHE. 11 make its decisions final to all purposes, and should not annex to it the incident of its judgment being reviewed by the Crown under its Irt'erogative. The 89th Section of the Act of 1875 provides that the Superior Court sitting in review shall determine, first, whether the member whose election or return is con)plained of has been duly elected or def^lured elected; second, whether any other person, and who, has been duly elected ; thiid, wliether the election was void ; and fourth, all other matters arising out of the petition, or reijuiring its determiniition. Then the 90th section enacts "such judgment shall not be suscej)til)le of Appeal." These two Acts of I'arliament, the Acts of 1872 and 1875, are Acts peculiar in their .aracter. * They are not Acts constituting or ])roviding for the decision of mere ordinary civil rights ; they are Acts creating an entirely new and \\\) to that time unknown jurisdiction in a particular-Court of tlio Colony, for the purpose of taking out (with its own rfmsent) of the Legislative Assembly, and vesting in that Court, thiit very ]»eculiar jurisdiction, wliich, up to that time had existe«l iijt the Legishitive Assenildy, of deciding election ])etiti(>ns, and determining the status of those who claimed to be members of the Legislative Assembly. .V jurisdiction of that kind is extremely sjiecial, anossible become conclusive, and enable the constitution of the Legislative Assembly to be distinctly and speedily known. As to the rights and the privileges of the electors, and of the Legislative Assembly to which they elect members, those rights and privileges have always in every colony, following the example of the mother country, been jealously maintained and guarded by the Legis- hitive Assembly. Above all, they have been looked upon as rights and ]irivileges whicl^ pertain to the Legislative Assembly in complete independence of the Crown. In VaUn v. Langloh ,5 Q. L. R. ]\ 1—3 L. Ii. 38), Mcreditli, C. .!., lieUl : That, the Dominion Controverted Elections Act, 1874, is not ultra virefi of the Dominion Parliament. That, the Dominion Parliament may assign the duty of the trial of an Election Petition to any subjects of the Dominion, whether they he ofticials of Provincial Courts or other officials or private citizc^ns. That, although it may l»e true that the Dominion Purlianieiit wnuot extend the jurisdiction of any Provincial Court, it does not B, N. A. ACT, ISHT — SECT. 101, JUDICATUUE. 335 annex to it 'n utuli'i" its les that the whether the duly elected \n\ who, has aid fourth, all etennination. le suscei»til)le of 1872 and e 'decision of tjntirely new -Court of the )nsent) of the very peculiar 16 Lej^islative f the .s^a^u.s of \sseml)ly. A )f the obvious t be, that the tbe exercised nclusive, and be distinctly rs, and of the ose rights and xanijde of the by the Le«,'is- ipon as ritjhts y in comijlete litl., C.J..l>eld: 4, is not ultra I of the trial of Ihether they he citizens. I)n rarlianient It, it does not follow, and is not true, that the Dominion Parliament cannot legally assign to judges of the Provincial Courts any judicial duties that can be discharged by such judges out of Court, consistently with their duties as judges of the Provincial Courts. T!\at, as, under section 101 of the B. X. A. xVc.t, of ISGT, "the Parliiunent of Canada may, notwithstanding anything in this Act, from time to time provide, &c., for the establishment of any additional Courts for the better administration of the laws of C maila." And, as, under sections l;? and 48 of the Dominion Controverted Elections Act of 1874 a trial Court is estaldished by the Dominion Parliament for the trial of Election Petitions, and this trial Court made a Court of Ilecord, the Court of Kecoril so established, must be held, to be a Dominion Court, separate and distinct from any Provincial Court. That, as the election trial does not tako place before a Pvovincial Court, but before a Dominion Court, the Dominion Parliament has the legal right to declare what shall be the civil ]»rocedure in the matter. The ja-ovisions of the B. N. A. Act of 1807, giving the Provincial Legislature exclusive powers to make laws respecting the "procedure in civil matters" in Provincial Courts, may, from the nature of the subject, be understood as meaning " civil matters," within the poimr of those Leyiftlatures ; and jiot as giving to the Pro- vincial Legislatures power to establish the procedure, in civil matters utterly beyond their power and completely under the control of the Dominion Parliament. On Appeal to the .Supreme Court of Caiiadn tlic judj^mcnt of Mr. Chief Justice Meredith was affirmed (3 Can. S.C., p. 1—2 L. N. 364—15 Can. L. J., N. 8., 31 1 ), the Court holding : That the Dominion Parliament, has not, in enacting the Dominion Controverted Elections Act, 1874, exceeded the ex})ress power conferred upon them to provide for the trial of Controverted Elections. That the Dominion Parliament has a i)erfect right to c '.legate to the Judges of the several Provinces individually or collectively, or both (in any way not being inconsistent or in conflict with their duties as Judges of their respective Courts) the })t)\ver to determine Controverted Elections. That the Dominion Parliament has the right to interfere with civil rights, when necessary for the purpose of legislating in relation to matters cijiitideil to them. That the exclusive power of legislation given to Provit)cial Legis- latures by sub-sections 13 and 14 of sec. i)2, means, the power of 336 B. N. A. ACT, 18G7 — SKCT. 101, JUDICATUKE. legislating for the athiiinislration of Justice in regard to the subjects confided to such Legislatures by the IJ. N. A. Act, and to that extent only, including the jirocedure necessary for the Administration of Justice, in reference to those subjects. Kitchie, 0. J., Henry, J., Gwyniic, J., and Taschcrcnu, J., nlsolield : Tliat the Doniiui(ju Parliament has the right either to create new Courts or to use the Provincial tribunals already established for the administration of its laws. Cliief Jiisticn Ititihie, in deliverinnnj Co. nnd The Nort](crii fiddirai/ Co., Held by II. ¥,. Taschoreau, J., SupremcCourt of Canada: That sect. G of 42 V. Can., ch. 30, which reads as follows ; " An Appeal shall lie to the Supreme Court, by L'ave of the said last mentioned Court or a Judge thereof, from any decree, decretal order, or order made or pronounced by a Su})erior Court of Ei|uity, or made or pronounced by any Equity Judge, or by any Sujierior Court, in any actitm, cause, matter or other judicial j»roceeding in the nature of a suit or proceeding in etiuity, and from the final judgment of any Superior Court of any Province, other than the Province of Quebec, in any action, suit, cause, matter or other judicial proceeding originally conunenced insueliSui)er- ior Court, without any ii\termediate Ajipeal being had to any interme- diate Court of Api)eal in the Province," is ultra vires of the Dominion Parliament. H. E. Taschereau, J., in rendering judgment, said : On the 7tli January, 1880, the Court of Chancery, at Toronto, ordered an injunction to issue against the Credit Valley Railway Co., restraining them from *^'iking possession of a portion of the 100 feet strip between Queen street and the Diamond crossing, to which the Credit Valley Railway Co. claimed a right under the authority of a license of occupation, granted to them in July, 1879, by the Minister of the Interior. An apjilicatitm was made by the Credit Valley Railway Co., under sect. of the Act 42 V. Can., c. 31*, fur leave to Appeal from the said judgment to tlie Su])reme Court of Cansida, without any intermediate Ajtpeal being had to the Ontario Court of Appeal. The Orand Trunk ]{ailway Co. op})osed the application, on the ground inter alia, that the said section 0, is ultra vires of the Dominion Parliament. I am with the j)laintills, in this contention. I am of opinion, that under sect. 101 of the R. N. A. Act, 1867, the Federal authority has power 338 H. N. A. ACT, 18G7 — SECT. 101, JUDICATURE. to },'vaiit un A|)])eal from the rroviuoial Courts of lust resort only. A difliTcnt C(»ustruction would interfere to such iin extent witli tlie power over the administration of justice in the Prwyince, wliich is so exclusive- ly <eal from the Court of original juristliction, without an A]»peal being Imd to the Provincial Court of Ai)peal, is to contend that a Provincial Statute on the administration of justice, and the con- stitution, maintenance and org-anization of a Provincial Court of Ap]»eal, can be repealed by the Federal legislative authority. For instance, in this case, if, in the Ontario Court of Ap])eal, the judgment of the Court of Chancery were reversed, the (Jmnd Trunk Pailway Co., under ch. 13, sect. 57 and 58, of the C. S. for Upper Canada (ch. 38, s. 49 of the P. S. O.), would have an ajtpeal to the Privy Council. Now, the Dominion Parliament has dej)rived them of that right, or has assumed the power to authorize me to deprive them of it. Had I the right to do so, I would hesitate and jiause before giving such an order. But I do not think that the Dominion Parliament has such a power. Keference has been made to sect. 27 of the Supreme Court Act, under which the parties can, by consent, a]ipeal directly to the Super- ior Court from the Court of original jin-isdiction. 1 always thought that this clause was imjdiedly repealed by the Statute of 1880, sect. 5 and 6. However, whether it is or not, I do not hesitate to say that this clause 27 is unconstitutional. The consent of the j)arties does not make any difference, and cannot give jurisdiction where it does not exist. Of course, under sect. 101 of the IJ. N. A. Act, which gi-ants to the Dominion Parliament the power to establish a general Court of Appeal notuithstavding anyfhiug in the Act, that Parliament, must have the right to interfere more or less with what should otherwise be comprised within the administration of Justice in the Provinces. But in my opinion such a construction must be put upon this clause of the Constitutional Act as must the least interfere with the exercise of the powers so expressly given to tlie Provincial Legislatures in the other parts of the Act. By the interpretation I give to this clause 101, the B. N. A. ACT, 1867 — SECT. 101, JUDICATUKE. 339 t only. A h the i)0\ver t'xclusive- icial liiorar- bo entirely e contended lis cliiuse, it 1 the Ontario J Court, and To contend mthori/e the :ion, without 3 to contend and the con- irt of Ai)])oal, For instance, i^mient of the uy Co., under I. 38, s. 49 of il. Mow, the ■ has assumed I the right to ,rder. Uut I l»\ver. |e (Jourt Act, ,0 the Super- |vays thought 1 880, sect. 5 |te to say that ]iarties does ire it does not which grants lioral Com-t of [lianient, must otherwise be ivinces. B"t clause of the erciso of the in the other use 101, the Federal Parliament has tlie right to create a Court of Apfieal from the Courts of last resort in each Province. In this way the words of this clause and each of them have their effect ; whilst by giving to the Dom- inion Parliament the right to interfere with the degrees of jurisdiction of the established Courts of the Provinces, the administration of justice in the Province, and the constitution, maintenance and organization of Provincial Courts are left to the Provinces, as the British North Amer- ica Act enacts that they should be left. I hold therefore that section 6 of 42 V. Can. c. 39, is unconstitutional, and the application is refused. The Jndiclul Committee nf the Privj/ Council. Tlie Sovereijin, by virtue of the Royal Prerogative alonn, has tlie ri;:ht and authority to revise the decisions of the Colonial ('ourts and grant leave to Appeal. (1 Bi. Com. 108 and 109, Chalin. Opinions 490, Cowp. 1G9 ^ The Parliament of Canada was empowered by this section to provide for the maintenance and organization of a *^' Mieral Court of A])peal for Canada, and in the Act (38 Vie. c. 2) constituting and organizing the Supreme Court of Canada, the Dominion Parliament sought to con- stitute such Court of last resort and of final Appeal, and it was provided by section 47 of that Act, that the judgment of the Su])reme Court shall in all cases be final and conclusive, and no Appeal shall be brought from any judgment or order of the Supreme Court to any Court of Ap])eal established by the Parliament of Great Britain and Ireland, by which Ap])eals or Petitions to Her Majesty in C(juncil may be ordered to be heard ; saving any right which Her Ma jt'sty may be graciously pleased to exercise by virtue of Her Iloyal prerogative. Duff, J., in Dow v. Blnck (3 Pugs. 439), remarked, that: As the fountain of justice, but not as a court of justice, an Appeal has always lain to the Sovereign from the Colonial Courts ; a privilege which the colonists have never been slow to avail themselves of. And this, like almost every other prerogative right exercised l)y the Sovereign in |)erson, in modern times, has been exercised under the advice of the Privy Council. As the Colonial Empire extended and increased in popidation and in wealth, and came to embrace, as it did, a great variety of systems of jurisprudence, Appeals not only multiplied, but they assumed such a character as to require for their decision great learning and sjjecial legal attaiiunents. To provide additional facilities f(jr disposing of the increased amount of business, and to secure, as advisers of the Sovereign in the disposal of it, the services of men so 340 B. X. A. ACT, 18G7 — SECT. lOl, Jl'DICATURE, eminent alike in personal ch^iracter, in learning and in le<,'iil ucqnire- nients, as to eonimaml the contidence and respect of the vuri :)us races and iieojdes conipo.sing the Colonial Knipire of Great Britain, the aid of Parliament was invoked; and by the o & 4 W. 4 c. 41, the Judicial Committee of the Privy Conneil was estaWisIied. Hy 34 and 35 Vict. c. 01, 1871, entitled An Act to ni iko further provision for tlic despatch of ba^incAS by the Judicial Coiuniittoo of the Privy Council, it was enacted : That Her Majesty might, "by warrant, under Her Sign Manual, appoint four additional iMjrsons to act as members of the .ludicial Com- mittee of the Privy Council," who must be specially ([ualified as follows, that is to say, must at the date of their appointment be, or have been judges of one of He" ^lajesty's Supc.'rior Courts at West- minster, or a Chief Justice of the High Court of Judicature at Fort William, in Bengal, or Madras, or Bombay, or of the late Supreme Court of Juilicatnre at Fort William, in Bengal, — to act as members of the Judicial Committee ; the Judges so appointed to hold office during good Ijehaviour, and notwithstanding the demise of the Crown (tliough removable upon the joint action of both Houses of Parliament), and each to be imid a salary of £5,UU0 a year. By the '• Supreme Court of Judicature Act, 1873," (30 and 37 Viet. c. (16) provision w:is made by the Imperial Parliament for the transfer by Her Majesty, by an Order in Council, to the Court creatcvl by that Act, of the Juris- diction of the Judicial Committee of the Privy Council. In Johnston v. Minister and Trustees of St. Andrew's Church, Montreal (L. R. 3 App. P. C. 159; 26 W. R. 350; 1 L. N. 13), their Lordships held: That Her Majesty's prerogative to allow an Appeal if so advised to do, is left untouched by section 47 of the Canada Act (38 Vict. c. 11), establishing the Supreme Court of the Dominion. The Lord Chan- cellor, who delivered the judgment of their Lordships, said : As to that part of section 47 of the Supreme Court Act which reads, " Xo Apf)eal shall be brought from any judgment or order of the Supreme Court to any Court of Appeal established by the Parliament of Great Britain and Ireland, by which Appeals or Petitions to Hor Majesty in Council may be ordered to be heard," these words refer to what may be ciilled the hypothetical establishment of a Court, by the Parliament of Great Britain and Ireland, by which Court, Appeals from the Colo- nies are supi)osed to be onlered to be heard, and, inasmuch as, no Court of that kind has been established, that part of the section may be omitted from our consideration. B. N. A. ACT, 1867 — SECT. 101, JUDICATURE. 341 l1 iicqnire- rious viices the aiil of le Judicial iiir provision ivy Oouticil, ;u Manual, liciiil Com- ualiticd as m-Mit be, or ts at West- ire at Fort ,Q Supreme lueinbers of jftice during »\vn (though ianieut), and J Viet. c. fi6) or by Her of the Juris- •h, Montreal lips hold: advised to Vict. c. 11), ,ord Chan- vhich reads, the Supreme nt of Great ]Maie3ty in what may Parliament n the Colo- uich as, no ion may be It U enacted by 31 Viot. Imp. c. 1, s. 7, ss. 33, tliat " no provision or cnactnioiit in any Act ."^liall affiict in any manner or way whatsoever the riglits of Her Majesty, Her lieirs or snecessors, unles." it be expressly stated tliat Her Majesty shall be bound thereby." See hire Iliuliy d- ("o. (2G W. K. S85 ; 39 h. T. N. S. 5:J). noted under sec. 91, s.s. 21 —p. 181. In the case o( Laiflcss an, payable in ten equal yearly instalments, and the land was hypothecated to s(!cure the amount. In a suii to (Miforce payment of cctrtain instaliiicnts, the Court of Queen's liench for Lower Canada granted K-ave to Appeal to Her iMnjesty in Council : lli'ld by their Lonlships, that the ease did not fall within this pro- vision of thtf ('ode of Procedure, and that the Court of (^. 1>. had no power to all(»w the Apjieal. Sir Janu's W. Colville, in jn'onouncing the judgment of their Lord- ship, said : " Their Lordships have not the means of knowing whether the title to those other cliosct* in action would stand upon precisely the sauH! ground as the title to that in (juestion in this suit. Some of them may have been realized, and as to some of them, notice may have been given long before the iusolv, :;t'y. 1'heir Lonlship.s ciaimot assunu; that the fiiets touching these other debts were before the Judges in Canada ; iind even if they were, their Lordships, considering the mode in whieli this litigation arose, are n bound, until a con- trary determination is arrived at by the House of Lords. Til S/mitnn V. Tlie Ifoim- Iintiirnncc Co. {'1 L. N. 314), — Q. B., Province of Qucltce. Sir A. A. Dorion, C. J., said : This is an application on the part of the ai»])ellant to be permitted to Appeal to the Privy CounciL The action was for 82,150, a sum less than £500 sterling, hut the case has been pending eight years, and the interest and principal united 346 n. N. A. ACT, 1807 — RKCT. 101, JUDICATURE. amounts to consMlcraMy more tliaii XTtOO sterling. In the case of Voyer & Richer, the I'rivy (Joiuu^il allowed an Appeal (though this (.'ourt had refused it), on the ground that, by aiKling interest ami costs, the amount in ilispute was over £500 sterling. That was contrary to the whole course of decisions in this country, and the decisions in this country were in confarty an undue advantage. In the jiresent case, their Lordshijis felt constrained to refuse to luok at notes, so irregularly communicated. Ijonl Carnarvon, Siicrotury of State for tli« Colonies, on the 2Sth November, 1874, transmitted a circuliir de^^{):ltcl) to the Governor General of Canada, of wliicit the following is a copy : Sir, — The Administrator of a Colonial Government has recently for- warded to me a Petition to the Queen in (Jcjuncil, from one of the parties in a private suit, for leave to appeal to Her Majesty in Council from a judgment of the Supreme Court of the Colony. 2. — I take this opportunity to inform you that it is no part of the duty of th(! Governor of a Colony to forward such Petitions, but that thev should be brou^iht before the Lords of the Judicial C(jmmittee of the Privy Council by a professional agent of the petitioner, in the usual uiunner. 3. — I have further to inform you, that it is not the practice of the Judicial Committee to return any answer to such Petitions until an apin-arance has been entered on behalf of the petitioner. 4. — If, therefore, application should be made to you by a party in » private suit to transmit a Petition of this nature to the Secretary of I State, you will decline to do so ; and you will inform the petitioner 348 n. N. A. ACT, 1807 — SECT. 101, JUDIC.VTUUK. what arc the proper steps to he taken in the matter. (:{9. Vict. Can. p. Ix.xiii). Aw attempt on tho put of tin? Dixiiiiiion (Tovemnu'iit to briiij; bofore the considor.ition of tlie .Tmhc'ril (yomiiiittceof tlie Privy C 'Uiiiiil ((ueftioiisiointiiii? to the cor).«titutioniility of the Coiiiiii')ii Seliools Act, pis-io«l in H71 l)y thi! Pio- viiiciiil I.OL'ishitiiro of N«nv nrunswick, provoil uii:iv.tiliii;;, for the loxsons st.iloJ ill a letter ihrnx the Privy (Joii'icil offiee, as follows: Sir. — I have siiltinitteil to the I»rtl President (»f the Couneil your letter of the Dth inst., tiMnsuiittin,!^ a eopy of a ilesiiateh frjin tlu Governor (Jeneral of Canada with enolosui-e.s, respeetinj,' an Act passed l»y tlif J'rovineial Legislature of New Rrnnswiek with reference to Common Schools, and retpiesting to know whether the opinion of the Lords of the Judicial Committee of the Privy Council on this (lu^^stion can ]iro))erly he olitained. It a]tpeais to His Lordship that as the ])o\ver of eonlirmiiit; or dis- allov.ing provincial Acts is vested hy the Statute in the (1 tveruor (Jen- eral of the Dominion of Canada, actinj; under the advice of his cousti- ttitional advisers, there is iiothin;^ in this case which ^'ives to lL:r Majesty in Council any Jurisdiction over this (luestion ; thou,L,'h it is conceivable that the etVect and validity of this Act may at some future time lie l»roUi,'lit before Her Majesty on an appeal from the Canailian Couils of .histice. This being tiie fact, His Lor«lship is of opinion that lliM' .M ijesty cannot, .vith propriety, be advised to refer to a Committee of Council in i'.n^lantl a (piestion which Her Majesty in (Jouncil has at present no authority to di'lermine, and on which the opinion of the Privy Council would not be binding on the parties in the iJominiiin of Canada. (Dom. Sess. Papers, 1877, So. 80, p. 407.) Hy 40 Viet. c. 21 (IH77) tiio l>)iiiiiiioii PiiriiiiUMit orentod a Court of Miiiiliuie .lurisijietion extiMnliiii^ to the inlami w itersoi' liu" Pntvinee of Oiilario, and uTiintiii,' the rein"dies ail'tnleil by any British Court of Vice Aduiiralty, ;h if "lie |]roeess ol the litter Uourf exteuJeJ to tin? smiJ I'roviiice. Ill Iiisiirmiff Coinj}inii/ v. Marse (20 Wall. 245), llelil: That an agreement in all eases to abstain from resorting to the Courts of the LIniteil States is void as against public policy, and tliit a Slate Statute retiniring .such an agreement is in conflict with the Con- stitution of the United States, .seciiiing to citizens of another State the absoluti^ right to remove their ciises into the Federal Court. This de(;ision re-anirmed in Doyle v. Continental Insurance Co. (94 U. S., S. C, 535) mK)n the principle that every man is entitled U. N. \. ACT, 18('>7 — SECT. 102, UEVENL'KS, &C., TAXATION'. ;U9 ct. Can. p- boloro tlio l)y till! I'lO- iHSiUlS StlllCU I iVdii thi Act piissetl reft'vent't^ to inioii ttf till) his tiiu,.slioii ■ming or clis- )vernor Uen- „f his CDiHti- ^rives to llt'r thoii;.;!! it is t souv". fiUiire the CiuuuUiUi It'i- M.i,ji!sty i i(f Council U jiiosoiit no livy Council iiuiula. CO (I'd ii Cmii't of iiici! of Oiii;o-i", 10 AJ»ii'i>l'i> •'■' >8ovtinR lo the tlicy, ai»il th.it with the Con- Hitlhcr State the urt. Insurance Co. man is entitled to resort to all the Courts of the country to invoke the protectiou which all the laws and all the Courts may atlord him, and that he cannot harti'r away his life, his fri-cdom, or his Constitutional riglits. Ill Murray v. Ch<(rh>ih»i (90 U. S., S. C, -4:J2). Hold : That wherever rij^hts, a(;ki>Mwled,m'd antl i)r(ttected by the Constitu- tion (if the United States, are denied or invaded by State legishition wliicli is sustained liy the jud^nuent uf a State Court, the U. S. Su- j.reme Court is authorized to interfere. Its jurisdiction, therefore, to re-examine such judgment cannot be defeated by showing that the record does not in direct terms refer to some constitutional jirovision, nor exjiressly state that a Federal ([ues- tion was jiresented. The true jurisdictional test is, whether it appears tlial such a (luestiou was decided adversely to tlie Feileral riglit. VII I. — Jteccnucs ; Debts; Ansets ; Taxation. 102. — All Duties and Reveiiues over which the respect- crMUon of ive Lcjrislatiires ot ( anaua, iSova hcotia, and New Urunswick, uovulukFiu:.!. hi'tore iind at tlio Union, had and have power of Appropria- tion, except snch portion.-* the reot' as are by this Act reserved to the respective Legislatures ofthe Provinces, or are raised by tiieni in accordance with the special Powers conferred on themhy this Act, shall form one Consolidated Revenue Fund, to be a})pro})riated for the Public Service of Canada in the Manner and subject to the Charges in this Act provided. Tlie Karl of Carnurvon on tlie 2iid Ucadiii},' of tlie B. N. A. Bill in the IIonsi> of Lords on the 19th February, 18lJ7, in statiiij: the understand inj; of the s(j)arate Provinces an to this part of tlie conijiaot, said : Clauses 102 to 126 regulate the conditions, pecuniary and commer- cial, upon which the Trovinces enter into Union. They are so entirely matter of local detail and agreement, that 1 need not weary the House with any minute statement of them. It is enough to say, that under them a Consolidated Fund is created, and that whilst lands and miner- als are reserved to the several Provinces, the assets, jn-ojierty, debts and liabilities of each, will be transferred to the (Jentral body. r>y this agreement, the }iubiic creditor who exchanges the security of eadi separate Frovvu'e for the joint security i the four Provinces confetlerated, will lint, his position improved rather than deteriorated. As between the Provinces, it is proposed that the Local Legisla- tures should surrender to the Central Parliament all powers of raising 350 D. N. A. ACT, 1867 — SECT, 102-105, REVENUE FUND, INTEUF.ST, &C. K^ppii^en of Ujliuction, lie. IntPfo^t of Pro- vincial rubllo revenue except by direct taxation ; in return for this concession, the Central Government will remit to the Local Legislatures certain fixed sums and a proportionate capitation payment, in order to enable them more conveniently to defray the costs of local administration. The debt of each Province has been fixed at a certain sum calculat- ed ; but if, in the interval between the present time and the Proclama- tion of Union, that debt shoul I be increased, the I'rovince so exceeding, will pay interest on the excess, and that interest, will be deducted from the (piota which they would otherwise receive from the Central author- ity. 103. The Consolidated Revenue Fund of Canada shall be permanently charged with the Costs, Charges, and Expenses incident to the Collection, Management, and Receipt thereof, and the same shall form the First Charge thereon, subject to be reviewed and audited in such Manner as shall be ordered bv the Governor General in Council until the Parliament otherwise provides. 104. The annual Interest of the Public Debts of the sev- eral Provinces of Canada, Nova Scotia, and New Brunswick at the Union, shall form the Second Charge on the Consoli- dated Revenue Fund of Canada. Salary of Gov- ^05, Uuless altered by the Parliament of Canada, the ernoro-ner.1. g.^|.^ . ^f ^j^^ Qovemor General shall be Ten thousand Pounds Sterling Money of the United Kingdom of Great Britain and Ireland, payable out of the Consolidated Reve- nue Fund of Canada, and the same shall form the Third Charge thereon. On 22nd M:iy, 18fiS, an Act wiis piisacil by the Senato and IIouRe of Com- mons of Canada redncinjr tlio salary of tlie Governor tJenoral from £10,000 (at wiiich rate it had bi-en lixo. 120 (Sect. 91, ss. 1,) for Third Schedule. In Stcadmtin v. Knbertton (2 Pue rather an extraordinary thing to call a public work, whilst the improvements on the St. John, and the St. I^wrence, as well as on the lakes, are really public works, and have been constructed with money that created the debt. Canada assumes the debt, and receives in return the public works and property that it has constructed. 352 n. N. A. ACT, 1867 — 109, provincial assets. ^ Tlio Copy of the Quebec Ki-solutions wliicli :iccoiiipanio(I the Address to Iler Mfijcsty, aiioptod by tlie 8th Provincial Piirliiimciit of Canad.i, [iskiin; for C'on- fediTation on that basis— roads at i*cc». ; 5, «». 5, " Uiv' r and Lake Improve- uicnts." (Can. Pari. Deb. on Confed., p., 1031.) S«'0, also ante p. 121 under sect, yi, ss. 1. In Altornvif dttirr'i! v. T-oifhir (2^ W. R. 873), the Court of Appeal (on ,\[ipeal from Chaneery Div.) held : That where land is vested in the Crown, subject to public uses, the grantee of tiie Crown intist take it, subject to all the obligations to which the land was subject when in the hands of the Crown. The Crown holds the bed of a navigable river, or the shore of the sea between high and low water mark, stibject to the right of navigation, and the grantee of the Crown can never do anything to interfere with the navi- gation. And if thert! is land vested in the Crown which is a natural barrier ngninst the sea, the duty and i.blig-ation of the Crown is t(t protect the land f mm the incursions of the sea; and a grantee of the Crown can stand in no better position than the Crown itself would do, and takes the land subject to the same obligation. 109. All Ltiiids. Miue."^, .Minerals, uiid Rovaltios, belong- iToportv, In ing; to the Several l'n»vinces of Canada, Nova Scotia, and New I^andH, Mine.', ^ ^ ' *«• Brnnswick at the Union, and all Stuns then due or payable for such Lands, Mines, Mineral.s, or Royalties, shtill belong to the several Provincesof Ontario, Qn bee. Nova Seotia, and New Brunswick in which the same are sitiuite or arise, sub- ject to any Trtists existing in respect thereof, and to any Interest other than that of the Province in the same. Property of Kscheat — Afforncif Genenil of thr Province of Qiiibir. v. The Attornei/ Gcneml of the Ui„nni'3 ol" British Columbia, nor accoricd tlioin any rij^hts or jirivile^cs in res- I't'ct to lands or reserves or settlements, was disallDWcd by the Governor (reneral MS being in violation of the 40th Article of the Stipulations of the Treaty of Capitulation of 8th September, 17*»0. The Governor General holdiiii^ that under this secti(m the lands be!oui;ing to the several Proviiiofs belong to them " t>ub- joct to any trusts exi^^tillg in respect thereof, and to any interest other than that of the Province in the same." (Dom. Sess. Papers, 1877, No. 80, p. 2.) I n Woolri/ it af. V. The Attorney Gtnenil of Victoria (46 L. J., N. S., p. 99) held by thtir Lordships : That a Colonial grant made under a Statute authorizing a con- veyance in fee simjile, to a purchaser of any waste land of the Crown in such Colony, did not transfer the rights of the Crown to golil which might be found in such land; and that it is settled law in England that the jircrogative right of the Crown to gold and silver found in mines will not pass tinder a grant of land from the Crown, unless, by apt and I>recise words the intcution of the Crown be expressed that it shall pass ; and that this law has Itcen introduced into the Colony of Victoria as part of the common law of England. Htdd, also, that it is a recognized principle of the construction of Statutes that the prerogative rights of the Crown can be aifected only by express words or necessary implication. 354 B. s. A. ACT, 1867 — sect. 109-112, provincial assets and debts. Attorney General t. O'Rfilly (15 Can. L. J., N. S., p. 34 — 187D), Proud- foot, V. C, held, on demurrer : That the doctrine of escheats applies to lands held in Ontario, and that the Attorney General of Ontario is the proper party to represent the Crown, and to appropriate the escheat to the uses of the Trovince. A(>»i>t- cnnect- ed witti Tro- viucUJ DfbU. < 'anada to be liable lor I'ro- vincial DebU. Debt* of On- tarin and c Union, Provinces of [nd chargeable Idepend on the llnion, shall be \ section of the dollars to the B. X. A. ACT, 1867 — SECT. 112-115, ASSETS OF ONTARIO & QUEBEC. 355 sum of $7;i,00G,0SS d(tllar.s and 84 cents, and as if the amounts fixed as aforesiiid as res])e(!ts the Provinces of Nova Scotia and New Brunswick hy the "B. N. A. Act, 1807," and as respects the Provinces of British C'olumhia and Manitoba by the terms and conditions on wliich they were admitted into the Dominion, were increased in the same projKjrtion. 113. The A»set.s enumerated in the Fourth Schedule toA,iv.t,„ron this Act belonging at the Union to the Province of Canada QueUc'"' shall be the Property of Ontario and Quebec conjointly. THE FOURTH SCHEDULE. Astetg to be the Projterty of Ontario and Quebec conjointly . Upper Canada Building Fund. Liinittic Asylums. Normal School. Court Houses \ in J Aylmer, s. Lower Canada. M ontreal, i Kamouraska. / Law Socielj, Upper Canada. Montreal Turnpike Trust. University Permanent Fund. Royal Institution. Consolidated Municipal LoHn Fund, Upp(. Canada. Consolidated Municipal Loan Fund, Lower Canada. Agricultural Society, Up|>er Canada. Lower Canada Legislative Grant, Quebec Fire Loan. Tamiscouata .\dvance Account. Quebec Turnpike Trust. Education — East. Building and Jury Fund, Lower C.mada. Municipalities Fund. Lower Canada Superior Education Income Fund. 114. Nova Scotia shall be liable to Canada for the. ., „ Amount (if any) by which its Public Debt exceeds at the^«"*'»- Union Eight million Dollars, and shall be charged with Interest at the Rate of Five^)S., where they were landed anil iunuediutely exported to St. John, N.I3., where they arrived after the 15. N. A. Act of Ist .July, 18G7, came in f(ace. Held, That hy passing through the I'nited States they did not become foreign goods, and were entitled to he adnutted free of duty into New Brunswick under the liilst section of the Ji. N. A. Act. Jimtni V. Miinihiud (12 Wlie:it, 410),IIcl.l : That an Act of a State Legislature reipiiring all importers of foreign goods, and other persons selling the same hy wholesale, to take out a license is repugnant to that jirovision of the United States Constitution which declares that no State shall without the consent of Congress lay 3.')8 n. N. A. ACT, 1867 — sect. 121, fukk tk.vdk bktwken pkoviscks. any iiujMwt or duty on exports or iiuiJortsoxiM^pt what niiiy ho iibsoliitc- ly iiecos*iry for exocutinj^ its ina poet ion liiw.s. Tlmt tlit-ro is no dilTerence Itotween ii power to impose a licenso tax that would amount to a prohibition of the salu of such artii'lus, and a power to ])rohil)ittho intnxhu-tion of surh lUtioUvs int) in 1S7:', in j.ur^ii inotM.f an Act piisscil by tin* Piirii.iiiiciit of I'linmli (.'{»• Vict. c. 41) t<) cirry into t-ffect Artiolf.s .JO, SI, uiiii ;13 nftlio 'I'lcily ol' \Vit.-liiiij.'t(in. TlicHo Articles |iriivulirta- tiun i.*4 uiudc ihrouu'h the Dominion of Ctinada liy land unriap; and in bond. liy Ariicli'Hl oi's.iidTriat), it in diclMrcd that llcr liiiiannic M.ijoty inrthcr cng.ip'A tu ur^'c upon tlie I'iirlianicnt of Canada and tin- Lci;i>ated down that Uiver to tiie >ea, when the same i.s shipped to the United Slates from the I'roviuee of Ntw Brunswick. The Dominion Act, 3l» Vict. c. 41, provided thit the Province of Nrt :iwr«'i>ce tlic phice witliri li ti:m'«|Hiita- l in kxiiiil. ;,j,..>ty lUltlllT iturc ol' Ncw on lumber or \j III the St lie tt,i;it.r tlio ;i»C'iiillicil- eniher ol the Le;risiative Council ol Canada, Nova hcotia,'""«>nToviii- ^ ' ' I'lH h«>ciiiiilii,( or New Brunswick, to wlioin a "•!•«•" in the Senate is o He red, **""■"*"" docs iH)t witiiin Thirty IJavs th. eafter, hy Writiiijr inuh'r his JIand athlresst-d to the (Governor General of the Province of Canada or t») the Fiieutenant Governor of Nova Scotia or New Hrunswick (as the Cast; may be), accept the same, he shall be deemed to have declined the same; and anv Person who, being at the passingof this Act a Member of the Legis- lative (Jonneil of Nova Scotia or New Brunswick, accepts a Place in the Senate, shall thereby vaciitu hiji Seat in such Legislative Council. 12ft. Every Member of the Senate or House of Commons oath of aii.- of Canada, shall, before taking his Seat therein, take and subscribe before the Governor (ieneral or .some Person authorized by him, and every Member of a Legislative C«)uncil or Legislative Assembly of any Pn)vince, .shall, before taking his Seat therein take and subscribe before the Lieute- nant Governor ol the Province or some Per.son authorized by him, the Oath of Allegiance contained in the Fifth Schedule to this Act; and every Member of the Senate of Canada and every Member of the Legislative Council of Quebec, shall also, l)efore taking his Scat therein, take and subscribe before the Governor General, or some Person autlKH'ized by him, the Declaration of Qualification containetl in the sanse Scliedule. Si!c anti, p-i^'o 76, (sccti'Mi 28,) for The Fifth Svhahde. 129, Except as otherwise provided by this Act, all Lawscomimitncflof m lorce in Camula, Nova Scotia, and New Brunswick at thoi» (.3 Can. S. C. 1), Ritchie, C J., in delivcrin;^ the judgment of the C'durt, 8aid : Tlui elTciot of this s(!ction, to which the Courts owe their very exi.st- euee, is evidinitly, to phice thein under the lef^islutive power of the Fedenil (lovenuiiciit as well us, it is true, under that of tin? liucid (iov«'nian'iit, iiiitl to luiike them, in fiut, eonunon to both tliescf ;,'(ivern- nicnts for tlie lulniinistnition of llie laws iulopted by them witliin iho liuiits of their resj)ective j)ower.s. In tlie rccont case of I'lrlvi/ rl at. v. li'ir/ne (Sunbuiy l'ilt'Cti<»n Petitinn), in tlic Suprcnii; Court of N. H. ; I>uff, J . siid : Tlie constitution and eontinuiinee of the Local ('o\u'ts nr«5 secured by section 12'.t; which enncts, that, except as otherwise jtrovided by the Act . . . all courts of civil and criniiniil jurisdiction, and all lei,Ml commissions, etc., etc., existing,' therein, ut the time of the Tnion shall continue in Ontario, (^ueltcc, Xova Scotia and New Hrunswiek, reMpi'Ciively, as if the I'nictn ha 1 not Iwen made; suhjtict ncvertlieles.s to he reiM-aled, al)olishetl or altere«l by the I'arliament of CJanada or hy the Lc^'islatures of the r(^spective Provijices, according' to the authority of rarbament or of tMat be«(islatiue, under the Act. The various Provincial Courts are to remain just "as if tl"! Union had not been madi'." Ncitlu-r the Legislature, nor any power in tiie Lominion, is pi-rmittcd to interfcrt^ with them, unh-ss, authctrity is giv<-n to it to do so, l>y that Act. And inasnuich as, prior to tlie I'niou, the aihuinistration of justice in the L»cal CoiuLs was undoul>t(;dly regulated hy the I'rovincial Leoislatures, the hurtlatn is upon tliose who assert that I'arliament pos.sesses that power, now to sIkjw, whc^rc it is ^'iven to I'arliament. In r.r p'irtf Ciiofif, jr., nnd The \knnici^illly i>f ihf County of liniim (21 L. C. .1. 1S.J), Diinkin, J., held: That th'j 129th section of the B. X. A. Act, 1807, maintained iu f' JED. 18 if the 30 pt with jta t)t' the nt of the [I) to be ,t' Canada, acooriling ,egishiUire delivering the • VCTV OXHt- owijr of tUu )f till! liOi-al hesc j^'dvern- u within lUo tion Pctiti"iO, ,rovitl<''l I'Y i.tu, iintl all ,r the. Tnion ,• Uiunswick, nt'Verllit'lt'Hi '.in;itlii or by Iho autlmvity I' if tl"i I'liion .owiT in tlio <, iiutUority is I,) till- Vnioa, (Uitl(tnl)t«'4), IIi-M : That "The Corrupt Practices Prevention Act, IHCO" (23 Vict. c. 17), applicable to the hiU'. Provinc«'S of (^uebt-c and Ontario, by sections 12'.( iind 41, art! still in force — there havin;,' \)w.n no incompatible legis- lation thereupon by the Dominion Parliament. IJJO, Until tii'» Pjirlianient of Canada otherwise providesxrM.f.Tnfon,. all OIlicerM of the several Provinces havinj!; Duties to dis-''"'' (diar^^i; in relation to Matters otIuM* than those coiuin«^ within till' (Jlas.ses of Sid)je(!ts hy this Act assi;^ned exclusive';; to the Lej^islutiiresof the Provinces, sliall he OHicers ol" Canada, and shall continue to di.schar^e the Duties of their res[)ective Ollices under the same Liahilities, Responsibilities, aiiid Penalties, as iftlie Union had not been tnado. 131. Until the Parlianieut of Canada otherwise pi'ovides, ^ ,,,,^^,„„f the Governor (leneral in Conncil nniy from Tinu> to Time "•*'■*•=""*• appoint sn' ii OHicers as the (iov rnor (leneral in ('oiincil deems necessary or proper for the elVectual K.vecntion of this Act. lJi2. The Parliament and Government of ('amtda sliMll.rrp„,j, i,,,,,^,,,. liave all Powers necessary or proper lor performinu; the *"*' Obi i;ji;at ions of (Janada ;»r of any Province thereof, as part of the British Kmpire, towards Forei;^n (yonntries, arising nnder Treaties between the Empire and riucli Foreign Conntries. A tho Coiiiiucrciid Troatius tnudc by tliu liup<'rial (iovcrniiicnt do not citond to their ''^JlulUOH it is uiinucuii.sury tu rufur to uny but Kxtrudition TreutioH. 3«4 H. N, A. ACT. 18(17 — SKCT. 132. TKKATIKS — KXTKADITKtN, Tlu! Trontics 'ii(Mitionoiiblic of Swil/.rrl'd. •Jii Mmv, IH7"; 'j:i July, 1H77. 41 V. 0. p. XIV. II M 18712. ih7:». :tl Mt»rrli, 1«7:». " II June, 1H72. '• IHMiirch, IH7:t. '/)! J mil-, lH7:i. Itljlllll-, IH7.t. I J II III-, IM7.H. Uritzil Ilityti " lluiiiliiriiM " :tl Mitrrh, ;h7I. Aliiivr |ir(>l(iii|;*' Jim., i;t Nov. lH7,t. " |(> .Mnrch, IH74. 38 V. (.'. p. XXlll. " 2t; April, |H7:« " 28 Aiij{iHt, IH73 :m V. r,nn. \>. V. " n Jiiijr, 1874. :w V. t; p X\V. " '.il N..»., 1878.42 V C. p XVIII. " :ii ih'c, 1874. :i8 V c.p. XXXI. " 22 l»io., I8H0. 43 V. Chii. p XV. " 2S.'pt., i87."..:nt V. Chii. p i.v. " 12 Oft., 187.^. .lit V. Can. p l,X. " 28 August, lH7:i 38 V. Ciiii. p. XI. 1871. 1874. 1872, 'I'lie ItiipcTinl Kxlriuiition Aclii of I87() iinil 1873 mailo npplicnbit- lo ilu-se trfutipit Hy n Dcerce of tlie (^net-ii of S|'!iin of liic I7tli NovciiilK^r, IS.VJ, it w.-m (U'cr«-<-il that : "Tin- rtM|iii.sil(iiiiil h'tlcrs of forci;^Mi .Fii(I;^<'m will Im* <-(iiii|iliril with in all tliiit can ah ennii'H and uiihi iiliiincanor.s eiiitnieraUHl in tlieso ireaties nol beiui' uiiiliinii, it will he n<'Hsiiry to reifr to the text of tii(! treity with the ('•■niilry from wliifli tl Ifcnder it a ru<;itive, lor the seiwijiiU; of extr.i> off ihvn. .\s the I'liileil St itos :niil I'Vanei; are the (wo countries with whieh, I'roin (heir inteieour^s; with the Dominion, oimcs of extruliiion mon; frei|iii>nlly ari^e, ex(rii!t>« .x|iowiii'4 "lo extraditiiltie otfeiiecs ami the proeeilure will i»e j^iven her,;. A Tri'n(y w.m siirned heiwiMiii (Ireat liril.tiii unl the (Itiiteil Stales on the !)(h Aii'4iist, ISI'J, tos«aile ami tlelinc! (he hoiunl.iries lietween the jMisscssioii-, of Her Itritaniiie .MiijeHty in North Anierie:i an I tint lirrritories of the Uniteil States; for the final mippre.sHion of the Afi'iean slave tr.ide ; ami for ilie ^ivin^ up of erimimil fugitives In im jitstiot!, in eertaiii ua.su.H. 'f he tenth artiele of the Treaty, in reforenee lo the riiirremler of fugitives from justice, reads as follows: — " It is nf^rciMl that Her IJrituniiie Maje.sty ami tin; rnitcMl StaU-s MJiall, upon mutual rei|uisiLions liy tlium or iheir niiiiisier.s, otUmtrs, or uutlioriticH, i'«>s|K!elivtily iiiadt!, thdiver up lo justice, all per.soii.s who, luiiiii^' ehar^eil with thu criiim of luunlor, or a.s.saiilt with intent to coiiimil muitler, or piracy, or ar.son, or rohhery, or foi-oci-y, or the ntteiaiee of forf,'e(| paper, eommilted wiijiin the jiirisdietiuii of either, »hall s(M-k an asylitni, or shall he found wilhiii tlut territories of the other: provided that this slu;U only l>u dune upon Hiich evidence uf ON. ,N1> 1. (Mrn.Hff. 'in. «'»" j-^- .C|. xxxiii. v.c.|. xxui. V.Can. 1..V. V c \> xw. V «M. XVIII. V r.V xxxi. V. Chii I' •^^,- V. *'»" 1' ''^,- I V. «;i»" I' ':^- I V. «;'<" I' ^'■ r, lHr»2, It Wi'H n. N. A. A(vr, 1807 — sk(.t. 132, tukatiks— KXTUAiirrroN, •Mr, '() ,iiii'Uf" »*"' ill,' iUhtmusny ;,U.!S not l>tMii4 ;,i,\.> ..IV. lie-''- |»i«h,rr..intl>'''"" •,v.ju,Mitly '»n>*o, I i„. ^ivn h.T •. ,1 St:ito» «•» *' of ih.^ l!i, 1 Willi inli^nt to |t..r«;t'iy, «•»' <-^>" l.lion of i^itliiT, Initmu'H i)t" the Inch i!vi«lcni;« of crimiiiiility, as, acconliiij; to tlio law.s of tlio |»liic,ii wIktu tlui fii^ilivt^ or ixu'.soti so char.rud sitiill It*) fitiuid, wmiiM justify his ii|i|>n!lu!ii.sioii aiul CDiiiiiiitiiiiuit for trial if tin; oriiait or oirtMi.;.; hail there, Imon coiiiiuittt;i| : ami tin; n'spcM-.tivo jiul^'cs ami other iiia;,'islrat(!H of tho two (Joveni- iiK'iits shall liavt! power, jiirisili.^tion an 1 aiithority, upon (vxiiplaiiit iiiaije iiiidcr oath, to issue a warrant f.tr tin; apprehension of the fn;^itiv(i r.r p(;r.son so charj^'ed, that he may Ik; hron^dit hefon; siu'h jiidj^es or other ma^istrat(;s respi;{;tiv.dy, to tin; end that the evid(;n(H! of (;riniinality may ht; he.ard and consid«;red ; and if, on sueh lu;arin^, tho evidence h(;d(;(;m(;d sulHeient to susUiin the eliar;r(;, it shall Ix; tlio riiiitl*>(l s(i(;h na nhn-n: of (li<' law a.s nIiowii in i.r /mrtf rjiiiiir'iii L. T., N. S., I HO, H»»o a nuiiMiiary of this K-.mn in Tudd'H Pari. (i.v. in {)<>\. "ill), who w:(s iniliiwi'iilly Hiirromlored whilo ii p(;titi onaotcd that : 2. Wluiro an arran^'ement hivs lH;on made with any foreij^'ii State Willi rosp(;ct to the surrender to such StaUj of any fuj,'itive criminals, Her Majesty may, hy Order in (J«>uncil, direct that this Act shall apply ill the case of such foreign SUite :?(;(; II. N. A. ACT, 1807 — SK*T. ]'^2, TUKATIKH — KXTUADITION. 3. 'I'ln! rollowiiij^f n'.stii(;lii»n.s sluill Ik: uhsorvcd witli rtiupcut to tho HUiTtiiKlfr (if fn^itivn rriiiiinuls : (Ij A rii<^Mtivu ci'iiiiiiiiil shiill not In; siUTi:ii(l if the itiVriKM! in r(;s|M!cL of wliicli liis siirnMnlcr is ihrtiiainliMl is out; of u |i()lit,i(;iil cliiinuitt'r ; or, if he provo thiit the t'(;i|uisitioti for his suirtunlur liiis ill fiu-t. liiMtti iiiaile will) ii vi*;\v t/t try or |iiiriish liim for iiri ollein;*) of ii |tohliriil <"hiinul(!r : (lJj a rii;^il,iv"- siirreiithtniil to a forci^^u Stutu unless provision is mule hy ihif Liw of tliat State, or hy iirrangtMnent, that the rii;.ritiv(! criminal shall not, until he. has Ixieti restored or hail an opjiortiinity of n^tnrnin^^ ti> Her Majesty's dotninions, lie i|(;tain(! think tit, ridiise to send any such ordi^r ; and may also at any time ord(*r a fuj^ilivc rriminal accusiid or (XJitvicted of such oilence to h(! discharged from cu slody. 10. In the ciLse f»f ft fujolive (l(;t.aiiii^ri-d out of oustfMly unh'ss suHicient cuu.so is shown to the contniry 27. The A(;ts specified in the third scdieduh; to this .Act (Act^H for j,'ivin},' ellect to Kxtradition trcatiifs with Krance, the I'nited States and Denmark^ an; lutndty repealed as to tin; whole of ll(;r Majesty's hominioiis ; and this Ar;t (with the (exception of any thing contained in it which is iiicfuisistent with the, tniati(!s rejerr(!d 1 1 in tin; Ads so repealed; shall apply fas re;4ards crimes (^tnimitUed (uiIku' bteforo or after IIk; passing (tf this Act) in the eji.se of the Foreign Slalen with which tlnmo trcuties are made, in the same mainiiir as if an Ord(;r in Council referring to su(th tneatiies had been mad(! in ]iursuance of thi.s A(;t, and, us if such order had dintcted that (;v(!ry law and (trdinaiuH; which is in fonu; in any Itrilish |)os.s(!.ssi<>n with resp(u;t t(» such tr(>ali(;s should have (df(!(;t as part of that Act. FlKHT ScilKIHILK. — I.lsr OK ('KIMKS. Ill KxtriHlitidii Auluf 1K70 (:t:t and M Viat. Imp. o. 52.) Till) fnljitwiii); liHt (ifurinitM ii t(t bo (sonHtriiod BiMsordiii;^ to tlio law cxi-din^ OUSti ill Kii^duiid, ur in u i^ .UhIi |MiHXOH»i 'I all<'<.v(l criiiK-, itIioiImt bj omnioii law or l>y Htatiitc iuimIu boforc or af'tiir the jkiKsiii'^ of llii.s Act : Miinlcr, aii«l :itt<-iii)tt aii ]»riN-iired, eomnianded, aidt.'il, or aiN-tted the e^tinmissioii of any extradi- tion erinie, or of U-in;» actf.ssory U-fore or after the fact to any extradi- tion erinie, shall In- deenic committed sikJi crime, and .shall lur liable to In? apprehended and surrendered accord- ingly 8* The princi|iiil Aet shall Ix; construed as if there were included in tite First Schetlule to that Act the li.st of crimes oontaineti in the Schedule to this Act. S< iiKnrLK. — Li.sr ok (.'kimrs in Kxtr»ordin^ to the law existing in Kn^^Iand or in u Itritish |M(sse.sMion (as the case may be) ut the date of the allefjwl crime, vhi-ther by common law or by atututo made liefore or after the i>aiuiiu{{ of this Act. )N. or afi'jr the llll'^llt'T- — Lor iiltt-nul H wliJit is luKcny. — ly II lKiiI<^«, ililic olliccit ii(» ill I'oice. Idciikiii^? — iwisu witli itstroyiii},' u Is on iMKinl lio urit'VnIIH |ifrs«iii.s oil iiusUT. itiuli A<'.t, uunst'llf'l' y fxliiuli- y cxtliiili- i(i|iiil Ai'.t ttctl such v(l iKM'onl- III iticliidfd in ic ScIumIuK; to the liiw nmy l'<') «it. »y Hlaluto H. N. A. ACT, 1807 — HKCT. 132, TKKATIKH — KXTIIAIHTION. 'M9 Kidnapiiiii"^ and falso iniprisonnKMit — IV^rjiiry, nml HulM»riiation of p'rjiiiy, wliftiicr under i-oinnion (»r slalute law. Any int.i«;tal»li! ollcnn', under llu! Lanteny Act, IHOI (24 and 25 Vict. c. IMI), or any Act ainendin;,' or sulisliluhnl for tlie sanu!, whicli \H nol includtMi in tin; first schedule to the principal Act. Any indictaltle ol1'enc(t, undcip the Act of lluf .session (»f the tw-nty- fourth and twenty-lifth years of the rei^n of Her present Majesty, chapter ninety-seven, "To consolidati! and amend th indictahle olfences hy forj^ery," or any Act aiuendin;^ or suhstituted for tlu; saints which is not int-luded in llii^ lir.st schedill*; to the principal Act. Any indictahle olVeiici!, under the Act of th(! session of tlu; twenty- fourth ami twenty-lifth years of tlio w.U^n (»f Her prcisent Majesty, cha|iter ninety-n.iK! lO C( uisolidate Hnd KUiend the Statute law of the I'nited Kinj^ilom a;^'ainst olfences ndatin^' to the coin," or any Act amendin;; or suhstituted for tin; .sann^ whi(;h is not included in the First scliedide to «!m' principal Act. Any indictahle s.siiin tor tlitt siirn-iuli;!- of fu;^ritiv(; criiniiiuls sliall liiivt; fllcct ill siirli I'ritiMli iMHst'ssioii, willi or without iiioilillriilioii, us if il wt-H! pjirt of tln! Ai:t, ol Ifi7<>. It wjiM, tlitiii'lon;, (•,oiii|)t!l,<*iit lor HtT MaJHsty to diiiict liy iiii itnU'V in (joiiiu.il tluit tlm Act of 1K70 woiiM ii|t|ily t,o (tiiHcs of fii^itivn criiiiiiiiilM in ('iiiiiuiii, uiuliir th»uirriiii;^(!- inciit iiiiui)! with til*'. lliiit<;(l SUittts, and that th*'. laws alntady ]iasHci| in Oanaila, iiiidcr thu ai-ran^^fiiittiit with tim Uniti!*! Status, should havt; th(! saiiin nlViMjt as if tlmy foniMMl part of that Act. What coil' ' liiivi! Iii!(!n don*; hy an onli^r in ('oitncil is dl'cctiially (lone, as rc;,'arii, it ]»rovid*'s that tln' Aitt rv law in lor*:*! in any I'.rilish possessi«in,with rcsjMMjt t*).siiohTrcati*)s, shoiihl liav«! (!ll*!*!t as part of that Acrt. As the Tntaty with the Unit*!*! .Stat*!S as regards th*i (;xtra*litioii of fnj^itiv*! *-,riiiiiiials, *'\ist*Ml wIkmi tli*i Act *)f 1H7U was passeil, s«'c. L'7 niaktis tlm Act appliejilile t*i that Tr*'aty — *fX- iii|iiiriii;^ :i (.fii rii^,'itiv(! «rvi — SKCr. l.'{2, lltlvMIKS — KXTUAIHTImN. :{7l incoiisistriil w it li section llili of tlm l». N. A. Act, lH<>7,uinl if il wen-, llic last Act would |iri;vail. In tli<; (!:»*• of liit.xtri(litii»ii w.is iipii|i(!(l for, ill Miiitr-'iil, in Ki-liiii iry, IS71, liy tin! Iliiiti'd Stalm (Jovuniinrnt, lor llii! criiiH- of AiHoii, llani^iiy, iJ , llrl<| : 1. That siil>-s)*clion '1 of suction 3, of the !iii|)crial Act of 1K7<>, is inconsistiMit willi tin* siilisistino Extradition Treaty Ixttween (ireat Brit- ain and the IJ. S., and is, therefore, not in fitiVA; quoad .my apiilicatioii under such Treaty. 2. That a (;o|iy of a Itill of TndictiiKtnt found a;{ainst the ]irisoner in the I'liit^Ml Stales raiiiiot lie received as eviileiice. o. That the evidence adduced was sullic.ittnt to sustain the ajiplica- tion. AI'liM- tilt! |i:iHM,'i<4i! (if till' liii|i<-rial Kxtrailitinn Aot nf 1K7U, lli<- |{riti>li (jov- crninciit in tin; \Viiisli,w cai^i; iliiiliniil, iiniKu- llic |iriivisi! HlionM iJLMridi' wli» of !S70 fiinl IH7."1 not liiiviiii; Ihhmi !^us|)cndc(l um i-ct;iir(l.s ('unaili, tliu Doniiiiioii Act of 1877 rciiiuinH ino|i(>rativ(<. In Jfe RoHoiW (42 L. J., N. S., 17, (inocn's Bench, Nov. 21. 1H72). The accused was claimed in En;,'hind, under the Kxtrnditinn Treaty of l;Uh February, 1H43, (rephiced, sinct; this decision, hy the Treaty of 187(i) between France and Great Britain, and arrested on a warrant issued under the Kxtradition Act, 1870. Section 3, suit-sec. 2 of tliat Act provided that a fu^^ilive criminal shall not be surrendered to a Foreij^n State uidess provision is ma(h) hy the law of that Statt;, or by nrrangeinent, that the fu^^itive criminal shall not be tried for any other crime. The Court (tf Q. H. upon the Atli(hivit of the otlicially appoint- ed Counsel to the French Knibassy in London, and the text books, found, that under tlie existing' hiw of Fiiinee such a provision is made, and iherefort! that the accused was not entitled to be discharj^ed. And held: That the Kxtradition Treaties are kejtt in full force by the Act of 1870, althou;,di the Acts jtassed to give them etfect are thereby repealed. Cockhurn, C. J., in delivering juiignicnt, snid : 1 rather hesitate to express any decided opinion as to the construc- tion to be put upon the 27th section, although I see plainly what was the intention of the Legislature ; that is to say, it vas intended, while getting rid of the Statutes by which tlu; treaties were continnod, to save the existing treaties in their full integrity and force. This has l)een probably ell'ected, but is cortaiidy not very clearly expressed. Nothing Would have been more simple than to enact, tliat, although it was expedient to repeal the Statutes, yet that the treaties sIkjuUI have fidl force and effect, insteaen adopted. In AliX'inder Termz (27 W. R., 170— L. U., 4 Kx. D. 63). A native of Switzerland was apprehended under the Extradition Act of 1870 (33 and 34 Vict. c. 52) on a warrant charging him with " Crimes against Bankruptcy laws." On a rule n'wi for a llalmtM Corpus, obtained on the ground that the offence charging the accused with " crimes against Bankruptcy laws " was not sutiiciently alleged in the warrant, a fresh warrant was lodged charging the offence more specifically. N. ill (Jutuula 1 187:J not 77 rciiiiiiiiH <72). ion Treaty I Treaty of II warrimt 2 of that lereil to a tate, or l)y any other ly apiMtint- ext books, )U is niude, •«e(l. 11 force by elVect are con.Htrnc- whiit was idftl, wliile u(l, to save has been Nothinii j^h it was uive full obscure ^Extradition him with ouml that iinkruptcy irrant was n. N. A. ACT, 1807 — SKOT. 1:32-134, USK OK ENOLISU AND FUKNCII, 373 Held, that the tirst warnitit coiitiiined a sutlicient description of the olTence. Kelly, C. H., said : I do not think wo can legitimately, lawfully or C(tnsistently refer to the second warrant on the arj,'ument of this ruh;. Ill r>' Wllnnii (tlu*) (3 L R , (I » , Uiv. 42—13 Cox'h Criiii. CuHOH. 3»i(») llie Kxtr.nliti',,11 I'liMty nl' 1H74 willi Swilzcrliml, |>riivi(li'il thut : No Swiss shall bt; delivered up by the Swiss (iovernment to the Oovernment of the I'liited Kin^'dom, and no subject of the Tnited Kinj,'doni shall l>e delivered up by the Government of tlie United Kingdom. In 1H75, by nn ()r •i)* A. ^>\^ IMAGE EVALUATION TEST TARGET (MT-3) 7 // /. /' 7] y /^ ' o^ A 374 B. N. A, ACT, 1867 — SECT. 134-136, provincial great seals. vince, the following Officers, to hold the office during plea- sure, that is to say, — the Attorney General, the Secretary and Registrar of the Province, the Treasurer of the Province, the Commissioner of Crown Lands, and the Commissioner of Agriculture and Public Works, and, in the Case of Quebec, the Solicitor General ; and may, by order of the Lieutenant Governor in Council, from Time to Time prescribe the Duties of those Officers, and of the several Departments over which they shall preside or to which they shall belong, and of the Officers and Clerks thereof; and may also appoint other and additional Officers to hold Office during Pleasure, and mny from Time to Time prescribe the Duties of those Officers, and of the t^everal Departments over which they shall preside or to which they shall belong, and of the Offi- cers and Clerks thereof. Powers Duties, 135- Until the Legislature of Ontario or Quebec other- tiveofficers. wise providcs, all Rights, Powers, Duties, Functions, Res- ponsibilities, or Authorities at the passing of this Act vested in or imposed on the Attorney General, Solicitor General, Secretary and Registrar of the Province of Canada, Minister of Finance, Commissioner of Crown Lands, Commissioner of Pul)lic Works, and Minister of Agriculture and Receiver General, by an Law, Statute, or Ordinance of Upper Canada, Lower Canada and Canada, and not repugnant to this Act, shall be vested in or imposed on any Officer to be appointed by the Lieutenant Governor for the Discharge of the same or any of them ; and the Commissioner of Agriculture and Public Works shall perform the Duties and Functions of the Office of Minister of Agriculture at the passing of this Act imposed hy the Law of the Province of Canada, as well as those of the Commissioner of Public Works. 136. Until altered by the Lieutenant Governor in Coun- Great Seals, cil. the Great Seals of Ontario and Quebec respectively shall be the same, or of the same design, as those used in the Pro- vinces of Upper Canada and Lower Canada respectively before their Union as the Province of Canada, SEALS. B. N. A. ACT, 1867— SECT, 136, PROVINCIAL GREAT SEALS. 375 ring plea- Secretary ! Province, issioner of jf Quebec, jieutenant jcribe the ipartments all belong, iso appoint r Pleasure, 3s of those irhich they )f the Offi- 3bec other- ctions, Res- Act vested or General, , Minister ssioner of Receiver )er Canada, this Act, appointed the same ulture and ions of the if this Act as well as )r in Coun- ively shall in the Pro- jspectively In a despatch of 27th Miirch, 1877, from the Eiirl of Carnarvon to the E;irl of Dufferin (Dom. Sess. Papers, 1877, Ho. 86, p. 47) we read : 3. No such clause as the foregoing appeared to have been considered necessary at the time of the Union iu the case of Nova Scotia and New Brunswick, but in 1869 it was thought desirable that new Seals should be prepared for the Dominion of Canada, and for the four Provinces then included in the Dominion. New Seals were accordingly prepared, and on the 7th of May a Warrant was passed under the Queen's Sign Manual and Signet, addressed to the Governor General of the Dominion, authorizing and directing that the said Seals should, respectively, be used for the sealing of all things whatsoever, which should pass the Great Seals of the Dominion of Canada and Provinces of Ontario, Quebec, Nova Scotia and New Brunswick, and requiring and connnand- ing the return of the old Seals. This Warrant does not appear to have been obeyed in the case of Nova Scotia, where the use of the old Seal has been continued, notwithstanding Her Majesty's instructions ; and I learn that it has lately been contended in Nova Scotia, that, in conse- quence of such use of the old Seal, all documents which have passed the Great Seal since the receipt of the new Seal, are invalid. The reason why no provision was mudo for other Provinces than Ontario and Quebec, was, that those other Provinces had already a Seal of their own, and that tlie B, N. A. Act liaving put an end to tlic Union then existing between Upper and Lower Canada, during whieli Union, they had the Couimon Seal of the Province of Canada, it was necessary to declare wl)at should bo the Seal of each (Ontario and Quebec^ after Confederation. The validity of the Great Seal of the Province of Nova Scotia which iiad been in use for more than a century was first called in question before the Courts of Nova Scotia in Ritchie v. Lenoir et al., Quite p. 61), as preliminary to the main issues in that case. Its validity was, however, held to have been settled (when that case came on Appeal, before the Supreme ('ourt of Canada) by subsequent legislation in tiie Doniitiion and Provincial Legislatures, made at the suggestion of the Eul of Carnarvon, confirming and sanctioning all acts done under the old Seid. and ilso authorizing tlie Lieutenant Governor of Nova Scotia to alter the Seal of that Province. The plaintiff objected, that the old Seal of the Province used in issuing the Letters Patent appointing Lenoir et al., Queen's Counsel, and giving them precedence over him in the Courts of the Province, was not the valid Seal of the Province; that the old Seal had been superseded by the warrant of Her Majesty directing the use of a new Seal, and commanding the return of the old Soal, and that sucli warrant was imperative and could not be disregarded, and consequently that the Letters Patent issued under the old Seal were invalid. 376 B. N. A. ACT, 1867 — SECT. 136, PROVINCIAL GREAT SEALS. In the arpuinent before the Supreme Court it was contended by Mr. Haliburton, Q.C., onbchiilf of defendants: That as the old Seal purported to be the Great Seal, no question as to its validity could be raised before the Court ; that all documents under the Great Seal must be received without further proof, as being matters of record; and that in this case the Seal was proved to have come from the keeper of the Great Seal, and to be the recognized Seal, as to which no question had ever been raised before. That the new Seal could not come into use until adopted and pro- claimed as such by the Governor in Council. It Avas objected to the legislation of the Dominion Parliament since the decision of the Courts below, that, as this matter concerned " the administration of Justice in the Province," and was one of the " matters of a merely local or private nature in the Province," the action of the Dominion Parliament in sanctioning all acts done under the old Seal, and authorizing the Lieutenant Governor of Nova Scotia to alter the Seal of that Province, was an interference with the exclusive powers conferred upon the Provincial Legislatures by Sect. 92 of the Confederation Act, and ultra vires ; and, moreover, — That as the question of altering the Great Seal was one affecting the prerogative, the Dominion Parliament was not authorized to vest this power in the Provincial Legislature ; that it was competent for Her Majesty alone, by Letters Patent or order in Council, to validate the past use of the old Seal. Mr. Haliburton, Q.C., remarked : — That all this difficulty as to the Great Seal arose from a singular blunder oi the Herald's College ; that they had probably been ignorant that Nova Scotia had had arms assigned to it by Charles I. when it was a Scottish Colony. That, from inquiries made at the office at Edinbuigli of the Lyon-King-at-Arms, it was found, that in the reign of Charles I. arms were granted to Nova Scotia of a highly honorable character, being the arms of Scotland counter-charged with the Eoyal arms of Scotland for an inescutcheou ; and as a further mark of honor, one of the Royal supporters, the Unicorn, was granted to Nova Scotia, the other supporter being " a naked savage with a club." These arms are still used by the Baronets of Nova Scotia, and were registered early in the present century in the Lyon office. It is evident that the Herald's College never thought of the fact that Nova Scotia was originally a Scottish Colony, and they therefore made no search for its arms in the Lyon Office. That the arms granted were lLS. icd by Mr. lestion as to lents under ing matters Q come from as to which ted and pro- Parliament this matter ;e," and was e Province," ill acts done rnor of Nova Slice with the ares by Sect. ^'er, — one affecting orized to vest competent for il, to validate )m a singular pen ignorant when it was lat Edinburgh of Charles I. i-acter, being of Scotland of the Royal a, the other Ltia, and were I office. It is jict that Nova (fore made no 1 granted were B. N. A. ACT, 1867 — SECT. 136, PROVINCIAL GREAT SEALS. 377 what is called in Heraldry an " abasement," being of inferior dignity, and without supporters. The Seal intended for Nova Scotia was sent to the Provincial Secretary of Nova Scotia with instructions to the Lieutenant Governor to take tlie necessary steps to cause the same to be adopted, which were not complied with. The following authorities were cited on behalf of the Appellant. "Absolute faith is universially given to every doeuinent purpDi'ting to be under the Great Seal, as having been duly sealed witii the authority of the Sovereign." (^IjoriiCdmphcWH Lives of the Lord Chuiicellors', Litr.) " lloyul grants are matters of public record" (Stevens' Coniui., B. II, pt. l,o. 21), and as such, "import truth upon their face," per all the Justices in Judford vs. Green, cited in 17 Viner, 456; also, ib 71-8; 2 Inst. 555, G, c. b. Bro. Abr. Tit. plii|).s in to lime, bj' Proclamation under the Great oeal oi the Pro- Quebec, vince, to take effect from a day to be appointed therein, con- stitute Townships in those Parts of the Province of Quebec in which Townships are not then already constituted, and fix the Metes and Bounds thereof. 380 B. N. A. ACT, 18G7 — SKCT. 145-14G, admission of other colonies. X.— INTERCOLONIAL EAILWAY. Oiity of GoV' (•iiiment and liitilway herein ac.turibed. 145. Inasmuch as the Provinces of Canada, Nova Scotia, (wiatomaL''^" -^^^^ Bininswick have joined in a Dechiration that tlie Construction of the Intercolonial Railway is essential to the Consolidation of the Union of Britisii North America, and to the Assent thereto of Nova Scotia and New Brunswick, and have consequently agreed that Provision should he made for its immediate Construction by the Government of Canada: Therefore, in order to give effect to that Agreement, it shall be the duty of the Government and Parliament of Canada to provide lor the Commencement, within Six Months after the Union, of a Railway connecting the River St. Lawrence with the City of Halifax in Nova Scotia, and for the Construction thereof without intermission, and the Completion thereof ■with all practicable Speed. In rorerotice to tliin sub-wction the Earl of Carnarvon, on the 2nd Reading of the B. N. A. Bill before the House of Lords, remarked that: Such an imdertaking was part of the compact between the. several Provinces, and it was an indispensable condition on the part of New Brunswick. Successive Governments at home have entertained the scheme, and have pledged themselves to the promise of more or less assistance. XL— ADMISSION OF OTHER COLONIES. 140. It shall be lawful for the Queen, by and with the Advice of Her Majesty's Most Honourable Privy Council, on Addresses from the Houses of the Parliament of Canada, and from the Houses of the respective Legislatures of the Colo- nies or Provinces of Newfoundland, Prince Edward Island and British Columbia, to admit those Colonies or Provinces, or any of them, into the Union, and on Address from the Houses of the Parliament of Canada to admit Rupert's Land and the North-Western Territory, or either of them, into the Union, on such Terms and Conditions in each Case as are in the Addresses expressed and as the Queen thinks fit to approve, subject to the Provisions of this Act; and the Pro- visions of any Order in Council in that Behalf shall have COLONIES. a Scotia, that the Lai to the 3a, and to vick, and made for Canada: it, it shall Canada to ! after the -ence with ustructioa m thereof nd Reading of 1 ths. several I part of New ertaiued the more or less d with the Council, on anada, and ■ the Colo- ard Island Provinces, s from the )ert's Land m,into the ic as are in links fit to id the Pro- 1 shall have B. N. A. ACT, 1867 — SECT. 146, ADMISSION OF OTHER COLONIES. 381 effect as if they had been enacted by the Parliament of the United Kingdom of Great Britain and Ireland. On the Second ftojidinyjof the B. N. A. Bill in the House of Lords on 19th Ffbrnary, 18G7, the Karl of Carnarvon reiuarked : There is, indeed, a question of great importance and intimately con- nected with the future fortunes of the Confederated Provinces, and 1 may perhaps be asked why it finds no place in tliis measure. My Lords, I am fully alive to the urgent importance of coming to some settlement of the Hudson Bay Company's claims. The ])rogress of American colonization on the West, the Confederation of the Provinces on the East, render an early decision necessary. But till this Union is completed it would be a waste of time to discuss the relations of the Hudson Bay Company's territories to the Provinces. When once this Bill becomes law, it will be the duty of Her Majesty's Government not to lose one day unnecessarily in dealing with this great subject. Hudson Bay Company. On the .Slst July, 18G8, an Act was passed by the Imperial Parliament (31 & 32 Vict. c. 105) entitled, " An Act for cnablinj^ Ilor Majesty to accept a surre ider upon terms" of the lands, privileges and rijihts of " The Governor and Company of Adventurers of England trading iut) Hudson Bay," and for adm tting the same into the Dominion of Canada. And in pursuance of this Act — under the pressure exercised over the Hudson Bay Company by the Colonial Secretary during the Civil War in the United States — Canada acquired all the privileges and rights of the Company in a tract of country 1,200 miles long and 500 miles broad for the sum of £300,- 000 sterling. And an Imperial Act was passed (32 and 33 Vict. c. 101) to provide f >r the Guarantee of the loan for the payment of the Hudson Bay Company for Rupert's land. Manitoba. On the 22nd June, 1869, an Act was passed by the Parliament of Canada (32 and 33 Vict. c. 3) to provide for the temporary Government of Rupert's Laud and the North -Western Territory when united with Canada ; and on the 12th May, 1870, an Amending Act was passed to provide (under the authority of the 146th section of the B. N. A. Act, 1867) for the formation, establishment and government of the Province of Manitoba, and for its admission into the Union, on and from, the day appointed by Her > y for the admission into the Union of the North-Western Territory and Rupert's Land. This Act also pro- vided for the Civil Government of the remaining part of said Territories (not included within the limits of the said Province) on and from the day appointed by HvT Majesty for their admission into the Unlcri. 382 B. N. A. ACT, 18G7 — SECT. 14G, NEWFOUNDLAND AND P. E. ISLAND. A'orth-Western Terrilonj and Jiiijieit's J. and. By Imjioiial Oidor in CduiicU of tlio 23d June. 1870 (see 35 Vict. Ciin., p. Ixiii). it Wiis ordered and dcelarcil by ller Mjijesty, by and with the advice of tlie I'rivy Council in pursuance and exercise of the powers vested in Her j\I;ijesty by Farliainont, that from and after tlie 15tli July, 1870, the Nortli- Woteni Territory and Rupert's Lund shall be admitted into and become part of the Dominion of Canada. British Volumhia. On addresses from the Houses of the Parliament of Canada and of the Colony of British Columbia, under 140 section of B. N. A. Act, 1807, this Colony was aihnittcd into the Confederation by Imperial Order in Council of Kith May, 1871 (sie 35 Vict., Can., p. Ixxx), doclarinj; that from and after the 20th .7 uiy, 1871, the Colony of British Columbia shall be admitted into and become jiart of the Dominion of Canada. I'rince Edward Island. By Act of the Parliament of Canada of 23d May, 1873 (36 Vict. c. 40), the terms ami conditions of the admission into the Union of the Colony of Prince Edward Island were declared, in anticipation of its admission ; and by an Im- perial Order in Council of the 26th June, 1873 (see 36 Vict., Can., p. ix), tliis Colony was admitted us u Province of the Dominion of Canada from and after the 1st July, 1873, upon the terms and conditions set forth in the addresses of the Hon. -c of Cononions and Senate of Canada, and of the Legislative Council and House of Assembly of Prince Edward Island. 147- 111 case of the Admission of Newfoundland and io'iinaiiutrt'and' Prince Edward Island, or either of them, each shall he i'riiico Edward /-< > t-i entitled to a Representation in the Senate of Canada ot Four Members, and (notwithstanding anything in this Act) in case of the Admission of Newfoundland the Normal Number of Senators shall be Seventy-six and their maximum Num- ber shall be Eighty-two ; but Prince Edward Island when admitted shall be deemed to be comprised in the Third of the Three Divisions into which Canada is, in relation to the Constitution of the Senate, divided by this Act, and accord- ingly, after the Admission of Prince Edward Island, whether Newfoundland is admitted or not, the Representation of Nova Scotia and New Brunswick in the Senate shall, as Vacan- cies occur, be reduced from Twelve to Ten Members respec- tivelj', and the Representation of each of those Provinces shall not be increased at any time beyond Ten, except under the Provisions of this Act for the Appointment of Three or Six additional Senators under the Direction of the Queen. Aj to Rpprpppn- tatioii of New- I' 1 Isl.ind iu Senate, E. ISLAND. 5 Vict. Can., the advice of ostcd ill H^-i" 1), the North- [ become part la and of the ,ct, 18U7, tliis in Council of 1 iiiul after the itted into and iet. c. -40), the )lony of I'rince [ind by an Ini- in., p. ix), this from and al"ter lie addresses of islative Council iidlaiicl and ill sliall be ADA of Four lis Act) in nal Number mumNuin- sland when le Third of lation to the and aecord- id, whether entation of ^11, as Vacan- bers respec- le Provinces cept under lof Three or ue Queen. B. X. A. ACT, 1871. 383 By the Statute 34 and 3.") Vict. Imp. c. 28 (35 Viet. Can., p. li.), the power to OHtablisli Provinces in Territories adui'tted, or wliieli may lier'.il'ier ho admitted, into the Dominion of Canada was more certainly v.^tcd in tiie Parlia- ment of Canada by Imperial lej^islatiou. Tiio following; is a copy of the IStatuto : The British Nortli America Act, 1871. AX ACT (34 and 35 Victoria, Chap. 28) RESrECTlNG THE ESTABLISHMENT OF PROVINCES IN THE DO.^HN10N OF CANADA. \2Q)th June, 187 1.] WHEREAS doubts have been entertained respecting the powers of the Parliament of Canada to establish Pro- vinces in Territories admitted, or which may hereafter be admitted, into the Dominion of Canada, and to provide for the representation of such Provinces in the said Ptirliainent, and it is expedient to remove such doubts, and to vest such powers in the said Parliament : Be it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords, Spiritual and Temporal, and Commons, in this present Piirlitiment assembled, and, by the authority of the same, as follows: — 1. This Act may be cited for all purposes as '• The British North America Act, 1871." 2. The Parliament of Canada may from time to time establish new Provinces in any Territories forming for the time being partof the Dominion of Canada, but not included in any Province thereof, and may, at the time of such establish- ment, make provision for the constitution and administration of any such Province and for the passing of laws for the peace, order and good government of such Province, and for its representation in the said Parliament. 3. The Parliament of Canada ma^'^ from time to time, with the consent of the Legislature of any Province of the 384 n. N. A. ACT, 1871. said Dominion, increase, diminish, or otherwise alter the limits of such Province upon such terms and conditions as may he agreed to by the said Le^ishiture, and may, Avith the like consent, maive provision respecting the eflV'ct and operation of any such increase or diminution or alteration ol" Territory in relation to any Province alVected thereby. 4. The Parliament of Canada may from time to time make provision for the administration, peace, order and good Government of any Territory not for the time being included in any Province. 5. Tlie following Act. [)assed by the said Parliament of Canada and intituled respectively : '' An Act for the Temporary Government of Rupert's Land and the North Western Territory when united with Canada," and " An Act to Amend and continue the ActThirty-twoand Thirty-three Victoria, chapter three, and to establish ami provide for the Government of the Province of Manitoba," Shall be and be deemed to have been valid and effectual for all purposes whatsoever from the date nt which they respectively received the assent, in the Queen's name, of the Governor General of the said Dominion of Canada. [Confirmation of Acts of Parliament of Canada, 32 and 33 Vict. cap. 3. Assented to 22nd June, 1869 & 33 Vict. cap. 3. Assented to 12th May, 1870.] 0. Except as provided by the third section of this Act, it shall not be competent for the Parliament of Canada to alter the provisions of the last-mentioned Act of the said Parliament, in so far as it relates to the Province of Manitoba, or of any other Act hereafter establishing new Provinces in the said Dominion, subject always to the right of the Legis- lature of the Province of Manitoba to alter from time to time the provisions of any law respecting the qualification of elec- tors and members of the Legislative Assembly, and to make laws respecting elections in the said Province. niter the ditioiiH as liny, with ellV'ct and altenitioii iiereby. 13 to time order suid ime being liament of »f Rupert's tilted with •ty-two and [abliish and Manitoba," id effectual vhicli they ame, of the da. } Vict. Clip. 3. h May, 1870.] 3f this Act, Canada to of the said If Manitoba, rovincea in the Legis- me to time ion of elec- d to make QUKBEC RESOLUTIONS. Eesoltttion.s adopted at Qi kheo, in Oclohpr 18C-4, Jit ft Confeionco of Dolcnjates, from Upjier and Lower Canudu, ^e\v BrunH'vick, Nova Scotia, Prince Edward Iwland and Nowfoundland. 1. The best interests und present and future pr()9|)crity of liritish N'orth America will bo promoted by a Federal tfnion under the Crown of Great Britain, provided such union can beetfecled on principles just to the several Provinces. 2. In the P'ederation of the British \orth American Provinces, the system of Govern- ment be$t adapted under existing circum- stances to i)rotect the diversified interests of the several Provinces, and secure efficiency, harmony and permanency in the working of the Union, would be a General Government charged with matters of common interest to the whole country, and Local Governments for each of the Canadas, and for the Provinces of Nova Scotia, New Brunswick and Prince Edward Island, charged with the control of local matters in their respective sections, — provision being made for the admission iLto the Union, on equitable terms, of N'ewfound- land, the North-West Territory, British Columbia and Vancouver. 3. In framing a Constitution for the Genera! Government, the Conference, with a view to the perpetuation of our connection with the Mother Country, and the promotion of the best interests of the people of these Provinces, desire to follow the model of the British Con-titution, so far as our circum- stances will permit. 4. The Executive Authority or Govern- ment shall be vested in the Sovereign of the United Kingdom of Great Britain and Ireland, and be administered according to the well-understood principles of the British Constitution, by the Sovereign i»er30ually, or by the Representative of the Sovereign duly authorize .. 5. The Sovereign or Representative of the Sovereign shall be Commander-in-Chief of the Land and Naval .Militia Forces. 6. There shall be a General Legislature or Parliament for the Federated Provinces, composed of a Legislative Council and a House of Commons. 7. For the purpose of forming the Legisla- tive Council, the Federated Provinces shall be considered as consisting of three divi- sions: 1st, Upper ('anada; 2rul, Lower Canada ; .'ird, .Vova Scotia, New Brunswick and Prince Kdward l.'^land ; each division with an equal representation in the Legisla- tive Council. 8. Uppolitical jiarties may, as nearly as 22. In computing at each decennial period possible, be fairly rei)re^ented. the number of Members to which each section 15. The Speakerof the Legislative Council is entitled, no fractional parts shall be con- (unless otherwise provided by Parliament) sidered, unless when exceeding one-half the shall be a|>pointed by the Crown from number entitling to a Member, in which case among the Members of the Legislative Coun- a Member shall be given for each such frac- cil, and shall hold othce during pleasure, tional part. and shall only be entitled to a casting vote 23. The Legislature of each Province shall on an equality of votes. divide such Province into the proper number 11). Each of the twenty-four Legislative of constituencies, and define the boundaries Councillors representing Lower Canada in of each of them. the Legislative Council of the General Legis- 24. The Local Legislature of each Province lature shall be apjiointed to represent one of may, from time to time, alter the Electoral the twenty-four Electoral Divisions men- Districts for the purposes of Rei)reEentation tioned in Schedule A of Chapt<'r first of the in such Local Legislature, and distribute the Consolidated Statutes of Canada, and such Representatives to which the Province is Councillor shall reside or possess his qualifi- entitled in such Local Legislature, in any cation in the Division he is appointed to manner such Legislature may see fit. represent. 25. The number of Members may at any 17. Tlie basis of Representation in the time be increased by the General Parliament, House of ''ommons shall be Population, as — regard being had to tl.j proportionate determined by the Official Census every ten rights then existing. years ; and the number of Members at first 26. Until ])rovisions are made by the shall be 194, distributed as follows: General Parliament, all the laws which, at Upper Canada 82 the date of the Proclamation constituting the Lower Canada 65 Union, pre in force in the Provinces respec- Nova Scotia 19 tively, relating to the qualification and New Brunswick 15 disqualification of any person to be elected, Newfoundland 8 or to sit or vote as aMember of the Assembly- Prince Edward Island 5 in the said Provinces respectively, and 18. Until the Official Census of 1871 has relating to the qualification or disqualifica- been made up, there shall be no change in tion of voters, and to the oaths to l)e taken the number of Representatives from the by voters, and to Returning Officers and several sections. their powers and duties, — and relating to If). Immediately after the cmpletion of the proceedings at Elections, and to the the Census of 1871, and immediatelv after period during which such elections maybe every decennial census thereafter, the Repre- continued, — and relating to tiie Trial of sentation from each section in the House of Controverted Elections, and the proceedings Commons shall be readjusted on the basis of incident thereto, — and relating to the va- Population. eating of seats of Members, and to the issuing 20. For the purpose of such readjustments, and execution of new Writs, in case of any Lower Canada shall always be assigned seat being vacated otherwise than by a disso- 1 of tlie other tment, recoivei iiccecdinsr, the ich it will be Rplircsoiitation adii will enjoy last taken, by made in the by any section, lave decreased. I of the whole er centum, leceuninl period ich eiich sectioa ts shall be con- ng one-half the r, in which case each such frac- h Province shall e proper number B the boundaries of each Province er the Electoral f Representation m\ distribute the the Province is islatnre, in any see tit. rs may at any lal Parliament, proportionate made by the laws which, at constituting the rovinces respec- iialification and n to be elected, of the A sserably ■spectively, and or disqualifica- iths to be taken g Officers and ,nd relating to ns, anil to the ilections may be to the Trial of the proceedings ting to the va- ,nd to the issuing s, in ca.se of any than by a disso- QUEBKC llESOLUTIONS. 387 V lulinn— shall respec'ively apply to elections of Members to servo in tiie House of Com- mons, for places situate in those Provinces resi)ectively. 27. Every House of Commons shall con- tinue for five years from the day of the return of the writs choosing tlie same, and no longer; subject, noverlheloss, to be sooner prorogue 1 or dissolved by the Governor. '28. There siiall be a Session of the General Parliament once, at least, in every year, so tliat a period of twelve calendar months shall not intervene between the last sitting of tlie General Parliament in one Session) and the first sitting thereof in the next Session. 29. The General Parliament shall have power to make Laws for the peace, welfare and good government of the Federated Provinces (saving the Sovereignty of E.igland), and especially laws resjjecting the following subjects: — 1. The Public Debt and Property. 2. The regulation of Trade and Com- merce. 3. The imposition or regulation of Duties of Customs on Imoorts and Exports, — e.\cept on Exports of Timber, Logs, .Masts, Spars, Deals and Sawn Luinber from New Hrunswick, and of Coal and other Minerals from .Vova Scotia. 4. The im|ii>sition or regulation of Excise Diitie?. 5. The riiismg of money by all or jiny other modes or systems of Ta,\a- tion. C. The borrowing of money on the Public (h-edit. 7. Postal Service. 8. Lines of Steam or other Ships, Rail- ways, Canals and other works, connecting any two or more of the Provinces together, or extending beyond the limits of any Province. 9. Lines of Steamships between the Federated Provinces and other Countries. 10. Telegraph Communication and the IncorporaLiim of Telegraph Com- panies, 11. All such works as shall, although lying wholly within any Province, be specially declared by the Acts authorizing them to be for the general advantage. 12. The Census. 13. .Militia— Military and Naval Service and Defence. 14. Beacons. Buoys and Light Houses. ir>. .Vavlgalton and Shipping. I'J. Quarantine. i 7. Seiv Coast and Inland Fisheries. 18 21. 22. 23. 24. 25. 2(). 29, 30 31, 32 Ferries between any Provinces and a Foreign country, or between any two Provinces. 19. (/urrency and (linage. 20. Banking— Incorporation of Ikuks, aid the is.siie of Paper .Money. Savings B;>nks. Weights and Measures. Bills jf Exchange and Promissory Notes. Interest Legal Tender. Bankrui)tcy and Insolvcncv. 27. Patents of Invention and Discovery. 28. Cojiy Rights. Indians and Lands reserved for the Indiuns. Naturalization and Aliens. Marriage ami Divorce. The Criminal Law. excepting the Constitution of Courts of Cri- minal Jurisdiction, but including the procedure in (h-imlnal malterg. 33. Rendering uniform all or any of the laws relative to propertv and civil rights in Upper Canada, Nova Scotia, New Brunswick, Newfoundland and Prince Edward island, and rendering uniform the procedure of all or any of the Courts in these Provinces ; but any statute for this purpose shall liave no foice or authority in any Province until sanctioned by the Legislature thereof. 34. The establishment of a General Court of Appeal for the Federated Provinces. 35. Immigration. 36 Agriculture. 37. And generally respecting all matters of a general character, not specially and exclusively reserved for the Local Governmenta and Legislatures. 30. The General GoTernment and Parlia- ment shall have all powers necessary or proper for performing the obligations of the Federated Provinces, as part of the British Empire, to foreign countries, arising under Treaties between Great Britain and such countries. 31. Tiie General Parliament may also, from time to time, establish additional Courts, and the General Government ma}' appoint Judges and officers thereof, when the same shall appear necessary or for the public advantage, in order to the due execu- tion of the laws of Parliament. 32. All Courts, Judges, and officers of the several Provinces shall aid, assist and obey the General Government in the exercise of its riglits and powers, and for such purposes 388 QUEBEC RESOLUTIONS, i t shall be held to be Courts, Judges and officers of the General Government. 33. The General Government shall appoint and pay the Judges of the Superior Courts in each Province, and of the County Courts in Up]>er Canada, and Parliament shall fix their salaries. 34. Until the consolidation of the Laws of Upper Canada, New Brunswick, Nova Scotia Newfoundland and Prince Edward Island, the Judges of these Provinces, appointed by the General Government, shall be selected from their respective Bars. 35. The Judges of the Courts of Lower Canada shall be selected from the Bar of Lower Canada. 36. The Judges of the Court of Admiralty now receiving salaries, shall be paid by the General Government. 37. The Judges of the Superior Courts shall hold their ofiSces during good be- haviour, and shall be removable only on the Address of both Houses of Parliament. 38. For each of the Provinces there shall be an Executive Officer, styled the Lieu- tenant-Governor, who shall be appointed by the Governor General in Cfiuncil, under the Great Seal of the Federated Provinces, during pleasure ; such pleasure not to be exercised before the expiration of the first five years, except for cause : such cause to be communicated in writing to the Lieu- tenant-Governor immediately after the exer- cise of the pleasure as aforesaid, and also by Message to both Houses of Parliament, within the first week of the first session afterwards. 39. The Lieutenant-Governor of each Province shall be paid by the General Government. 40. In undertaking to pay the salaries of the Lieutenant-Governors, the Conference does not desire to prejudice the claim of Prince Edward Island upon the Imperial Government for the amount now paid for the salary ot the Lieutenant-Governor thereof. 41. The Local Government and Legisla- ture of each Province shall be constructed in such manner as the existing Legislature of each such Province shall provide. 42. The Local Legislature shall have power to alter or amend their Constitution from time to time. 43. The Local Legislatures shall have power to make laws respecting the following subjects : 1. Direct taxation, and in New Bruns* wick the imposition of duties on the export of Timber, Logs, Masts, Spars, Deals and Sawn Lumber : and in Nova Scotia, of Coals and other .Minerals. 2. Borrowing money on the credit of the Province. 3. The establishment and tenure of local offices, and the appointment and payment of local officers. 4. Agriculture. 5. Immijrration. 6. Educiition ; saving the rights and privileges which the Protestant or Catholic minority in both Can- adas may possess as to their deno- minational schools, at the time ■when the union goes into opera- tion. 7. The sale and management of Public Lauds, excepting laud^ belonging to the Genpral Government. 8. Sea Coast and Inland Fisheries. 9. The establishment, maintenance and management of Penitentiaries,and Public and Reformatory Prisons. 10. The establishment, maintenance and management of Hospitals, Asy- lums, Charities and Eleemosynary Institutions. 11. Municipal Institutions. 12. Shop, Saloon, Tavern, Auctioneer and other Licenses. 13. Local Works. 14. The incorporation of Private or Local Companies, except such as relate to matters assigned to the General Parliament. 15. Property and Civil Rights, excepting those portions thereof assigned to the General Parliament. 16. Inflicting punishment by fine, penal- ties, imprison ent or otherwise, for the breach of laws passed in relation to any subject within their jurisdiction. 17. The Administration of Justice, includ- ing the constitution, maintenance and organization ot the Courts, both ot Civil and Criminal juris- diction, and including also the procedure in civil matters. 18. And generally all matters of a private or local nature, not assigned to the General Parliament. 44. The power of respiting, reprieving, and pardoning prisoners convicted of crimes, and of commuting and remitting of sentences in whole or in part, which belongs of right to the Crown, shall be administered by the Lieutenant-Governor of each Province in Council, subject to any instructions he may, from time to time, receive from the General I the following n New Hriin8- ion of duties Timber, Logs, \\3 and Sawa fova Scotia, of inerals. 16 credit of the tenure of local pointnient and fiBcers. ae rights and le Protestant or f in both Can- \s to I heir deno- Is, at the time oes into opera- jment of Public lauds belonging ivernment. I Fislieries. liiintenance and ;nitentiaries,and •matory Prisons, laiuteuance and Hospitals, Asy- id Eleemosynary , Auctioneer and Private or Local t such as relate d to the General ights, excepting reof assigned to lament. t by fine, penal- t or otherwise, laws passed in subject within F Justice, includ- 3n, maintenance ot the Courts, Criminal juris- luding also the [matters. ^ters of a private lot assigned to iment. ling, reprieving, Ivicted of crimes, ling of sentences fongs of right to listered by the 3h Province in luctions he mayi }om the General QUEBEC RESOLUTIONS. 389 Government, and subject to any provisions that may be made in this behalf by the General Parliament. 45. In regard to all subjects over which jurisdiction belongs to both the General and Local Legislatures, the iaws of the General Pa.'liament shall control and supersede those made by the Local Legislature, and the latter shall be void so far as tlieyare repugnant to, or inconsistent with, the former. 4(5. Both the English and French languages may be employed in the General Parliament and in its prodeedings, and in the Local Legislature of Lower Canada, and also in the Federal Courts and in the Courts of Lower Canada. 47. No lands or property belonging to the General or Local Governments shall be liable to taxation. 48. All Bills for appropriating any part of the Public Revenue, or for imposing any new Tax or Impost, shall originate in the House of Commons or House of Assembly, as the case may be. 49. The House of Commons or House of Assembly shall not originate or jjass any Vote, Resolution, Address or Bill for the appropriation of any part of the Public Revenue, or of any Tax or Impost to any purpose, not first recommended by .Message of the Governor General or the Lii.'Utenant- Governor, as the case may be, during the Session in which such Vote, Resolution, Address or Bill is passed. 50. Any Bill of the General Parliament may be reserved in the usual manner for Her Majesty's assent, and any Bill of the liocal Legislatures may, in like manner, be reserved for the consideration of the Governor General. 51. Any Bill passed by the General Par- liament shall be subject to disallowance by Her Majesty within two years, as in the cnse of Bills passed by the Legislatures of the said Provinces hitherto ; and, in like manner, any Bill passed by a Local Legislature shall be subject to disallowance by the Governor General within one year after the passing thereof. 52. The Seat of Government of the Fede- rated Provinces shall be Ottawa, subject to the Royal Prerogative. 53. Subject to any future action of the respective Local Governments, the Seat of the Local Government in Upper Canada shall be Toronto ; of Lower Canada, Quebec ; and the Seats of the Local Governments in the other Provinces shall be as at present. 54. All Stocks, Cash, Bankers' Balances and Securities for money belonging to each Province at the time of the Union, except as hereinafter mentioned, shall belong to the General Government. 55. The following Public Works and Pro- perly of each Province shall belong to the General Government, to wit : — 1. Canals. 2. Public Harbours. 3. Ligiit Houses and Piers. 4. Steamboats, Dredges and Public Vessels. 5. River and Lake Improvements. 6. Railway and Railway Stocks, Mort- gages and other debts due by Railway Companies. L Military Roads. 8. Custom Houses.Post Offices and other Public Buildings, except .=ucli as may be set aside by the General Government for the use of tlie Local Legislatures and Govern- ments. 9. Property transferred by the Imperial Government and known as Ord- nance Property. 10. Armories, Drill Sheds, Military Cloth- ing and Munitionsot War; and il. Lands bet apart for public purposes. 56. All Lands, Mines, Minerals and Royal- ties vested in Her .Majesty in the Provinces of Upper Canada, Lower Canada, Nova Scotia, New Brunswick and Prince Edward Island, for the use of such Provinces, shall belong to the Local (Jovernment of the territory in which the same are so situate ; subject to any trusts that may exist in respect to any of such lands or to any interest of other persons in respect of the same. 57. AH sums due from purchasers or lessees of such lands, mines or minerals at the time of the Union, shall also belong to the Local Governments. 58. All Assets connected with such por- tions of the Public Debt of any Province as are assumed by the Local Governments, shall also belong to those Governments respec- tively. 59. The several Provinces shall retain all other Public Property therein, subject to the right of the General Government to assume any Lands or Public Property required for Fortifications or the Defence of the Country. 60. The General Government shall assume all the Debts and Liabilities of each Pro- vince. 390 QUEBEC RESOLUTIONS. 61. The Debt of Canada, not specially assumed by Upper and Lower Canada respectively, shall not exceed, at the time of the Union, $02,50(1,000 ; Nova Scotia shall enter the Union with a debt not exceeding $8,000,000 ; and New Brunswick with a debt not exceeding $7,000,000. 62. lu case Nova Scoiia or New Brunswick do not incur liabilities beyond those for which their Governments are now bound,and which shall make tlieir debts, at the date of Union, less than $8,000,000 and $7,000,000 respectively, they shall be entitled to interest at live per cent, on the amount not so incurred, in like manner a-s is hereinafter provided for Newfoundland and Prince Edward Island ; the foregro tempore, in the absence of the vice-president, or when he shall exercise the office of i)re3ident of the United States. 6. Tiie Senate shall have the sole power to try all impeachments. When sitting for that purpose, lliey shall be on oath or affirmation. When tlie president of the United States is tried, the chief justice shall preside; and no person shall be convicted without the con- currence of two-thirds of the members present. 7. Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of lionor, trust, or profit, under the United States ; but the party convicted shall nevertheless be liable and subject to iudict- ment, trial, judgment and punishment, according to law. SECTION 4. 1. The times, places, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof; but the Congress may, at any time, by law, make or alter such regulations, except as to the places of choosing senators. 2. The Congress shall assemble at least once in every yiar, and such meeting shall be on the first Monday in December, unless they shall by law appoint a dillerent day. SECTION 5. 1. Each house shall be judge of the elections, returns and qualifications of its own mem- bers ; and a majority of each shall c- nstitute a quorum to do business ; but a smaller num- ber may adjourn from day to da^ . -id may be authorized to compel the attendance of absent members, in such manner and under such penalties as each house may provide. 2. Each house may determine the rules of its proceedings, punish its members for dis- orderly behaviour, and with the concurrence of two-thirds, expel a member. 3. Each house shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy; and the yeas and nays of the memtjers of either house on any question, shall, at the desire of one-fifth of those present, be entered on the journal. 4. iNeiiher house, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place thau that in which the two houses shall be sitting. SECTION 6. 1. The senators and representativi - shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall, in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to or returning from the same ; and for any speech or debate in either house, they shall not be questioned in any other place. 2. No senator or representative shall, during the time for which he was elected, be appointed to any civil office uuder the authority of the United States, which shall havi; been created, or the emoluments whereof shall have been increased during such lime ; and no person iiolding any office under the United States shall be a member of either house during his continuance in office. SECTION 7. 1. All bills for raisinjr revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other bills. 2. Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the president of the United States; if he approve, he shall sign it; but if not, he shall return it, with his objections, to that house in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If, after such reconsideration, two-thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall CONSTITUTION 01" Till". UNITED STATES. 39: te, but shall npore, in the jf the United ■n sitting for United States lOut the con- removal from (fit, under the jecl to iudict- epresentatives 3 may, at any jsing senators, eeting shall be X day. f its own mem- a smaller num- attendance of ay provide, lembers for dis- time publish the d the yeas and )ne-tiftb of those snl of the other, the two houses |ir services, to be lu'y shall, in all [est during their .urning from the lestioued in any Ivvas elected, be shall have been 111 lime i and no ler house during Itatives ; but the le Senate, shall, If he approve, he louse in which it lial, and proceed \l\ agree to pass U which it shall likpwiae be reconsidered, and if approved by i wo-tliinls of t Imt liouHe, it simll become a law. But in ail cases, the voles of both houses shall be ddteriiiini'd i>y yeas aud nays, and the names of the persons voting for and against the bill siuill be entered on the journal of each house respectively. If any bill shall not be returned by the president within ten diiys (Simdays excepted) after it shall have been prese ited to iiiui, the same sliitll be a law in like iiiaiiiier us if he had signed it, unless the (Joiigress by tlieir ailjournment prevent its return, in which case it shall not, be a law. 3. Every order, resolution or vote, to which the concurr ■ace of the Senate and House of Ueprcsenlatives may be necessary (except on a quest ion of a'lj lurnmciit), shall hi' prcsoiited to the president of ilie United States; and before the same shall tak(! ellVct, shall bo approved by him, or being disapproved by him, shall he repassdl by two-thirds of the .Senate and liouae of liepresentalivcs, according to the rules and liinitaiions prescribed in the case of a hill. SKCTIO.V 8. The Congress shall have jiower, — 1. To lay and collect taxt^s, duties, imposts and excises ; to pay the debts and provide for the conmion did'enci.' and genenil welfare of the Uiu'ed .States ; but all iiitiis, imposts and excises shall be uniform Ihroiisihout the United Stitcs : 2. To borrow money on tlic credit of the United Slates : ;i. To regidate commerce with foreign naiions, and among the several states, and with the ludiiin tribes : 4. To establish an uniform rule of naturalization, and uniform laws on the sidiject of baiikriiptcies throughout the United States : 5. To coin money, regulate the value thereof, and of foreign coin, and lix the standard of Weights aud measures : To provide for the punishment of counterfeiting the securities and current coin of the United Slates: 7. To estahli^ih jiost-oflices and post-roads : 8. To promote the progress of science and useful arts, bv securing, for limited times to auiliors a;id inventors, the exclusive right to their re lective writings and discoveries: 9. To constitute tribunals interior to the su'reme court : Todeline and punish ]>ir:icies and felonies committed on the high seas, and offences against the law of nations : 111. To declare war, grait letters of nianpie and reprisal, and make rules concerning captures on land and water : 11. To raise and support armies ; but no api)ropriatiou of money to thatuse sh.iU be for a longer term than two years : 12. To ])roviile and maintain a navy ; 13. To make rules for the government and regulation of the land and naval forces : 14. To [irovide for calling forth tlie militia to e.xecuie the laws of the Uuion, suppress insurrections, and repel invasions ; 15. To provide for organizing, arming and disciplining the militia, and for governing such part ot them as may be employed in the service of the United States, reserving lo the States respectively, the appointment of the officers, aud the authority of training the militia according to the discipline prescribed by (Jongress: KJ. To exercise exclusive legislation iu all cases whatso.iver, over such di.strict (not exce cliiig ten miles square) as may, by C(!ssion of particular states, and the acce|)tance of Congress, become the seat of government of the United Stales, and to exercise like authority, over all (dices purchased by the consent of the legislature of the slate in which the same shall be, for tlietreciion of tons, magazines, arsenals, dock-yards and other useful buildings : and, 17. To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution iu the government of the United States, or in any department or ollicer thereof. SECTION 9. 1. The migration or Importation of such persoQS as any of the states now ex'sting shall 394 CONSTITUTION OF THE UNITED STATES. tliiiik proiMT to admit, almll not bo proliil)ited by the Coiij^ress jirior to the your ont' thon- -■'MUcl ciijlil lniiiilnd mid oiglil, but a tux or duty iiiiiy l)e iiiii)osiHl on .siicli innportntioii, not excoi'diiij,' ton dollars tor oiioh person. 2. Tliu [irivilogo u( llio writ of /ni/ini.t rorjnm sliidl not be suspended, unless whou, in cases of rebellion (~r invasion, tlio jiiiblic safety may require it. :i. No bill (if alt.iiiidor, or ix imxl hirtu law, shall bi; passed. 4. No tiipilatiou or oilior direct la.x shall be laid, unless in proportion to li.e census or eniimeniiion herein before directed to be taken. 5. No lax or duly shall bo laid on articles exported from any state. No iireforence shall be ({iven by any regulation of coinmerco or revenue to the ports of (jiie state over those of a.iotiier: nor .-hall vessels buund to or from oire stale be obliged to enter, clear or pay duties in another. i;. No money shall be drawn from the treasury, but in consequence of apiiropriations made by law : and a regular statement and account of the receipts and ex|ieuditures of all ]]ublic money shall be published from time to time. 7 No tiile of nobiliiy .--hall be granted by the United States, and no person ImMing any oflice of prolii or trust iiiuler them shall, without the eoiisent of the Congress, accept of any iireseut, emolument, otlice, (U- title of any kind whatever, from any king, prince or for- eign stale. SECTION 10. 1. No stale shall outer into nny treaty, iiUiance or confederation ; grant letters of nuuipie a;id reprisal ; coin moui'y ; emit bills of cudit : make any thing but gold and silver eoiii a tender in jiayuient of debts ; [luss any iiill of attainder, > x /lo.'il Juclu law, or law iuiiiair- iug the obligation of contracts ; or grunt any title of nobility. 2. No staie shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary tor execiiiiug its inspection laws ; and tiie net produce of all duties aiul imposts laid by any state on ini|iorts or exports shall be for the use of the treasuiy of the United .Slates, and all such laws shall be suliject to the revision and cwuuol of the Congress. No state shall, without the consent ol Con- gress, lay any duty of tonnage, keoii troops or ships of war in time of peace, enter into any agreement or comiiact witli aiiolhor state, or with a foreign power, or engage in war, un- k-.-s actually invaded, or in sucli imminent danger as will not adm.t of delay. ARTICLE II. T/ie Extculiie J'ouri; SKCriO.N I. 1. The executive power shall be vested in a presiileut of the Uiiiteil States of America. He shall hold his office during the term of four years, and. together wiih the vice-iiresipoiuted; ami if till re be inori' than one wiio liave such m ijority, and have au eipial number of votes, then the House of Upresentatives shall immediately clioo-e, by ballot, one of them for president: nii'i it no "or^on have a majority, then from the live hiresideut, the votes ) year one thon- niportation, not unless when, in to I'.e census or ) ]irefr eacli ; of the government |idenl of the Senate nil the certitieale-i, ..iber of voles siniU [clectoiS ajipointed; ;il number of voles, [)t, one of them for ] on the list, the said presiJcut, the votes rON-STITrTIOX OF TilK UNITKO STATKS. '.)'.).> simll he taken by stales, tiie represcntatinn from cu'li stutp haviiii; one vote ; a qiiornni for tills purpose sliall eou-dsf of ii member or meiabrrs from two-thirds of the Slates, and a majority of all the Hiates siiall he neccssui • to a <'hoiee. in every case, after the choice of tliu president, liie persou liaviiip tiio jjreutejt, nninbi'r i)f voles of tlie ilectors shall bo the viee-presideiil. I! it if ilu'i'p should remain two or more who have equal votes, tlie Senate slmll choose from them, by ballot, the vice-presiilent.] (Til" preciMlin;; siili-soctlon '4 wa* iiiiieniliMl in IH 'i by Artjclo 12 of tho Amendmontc) 4. The (louj^ress mav determine lliu time of clioosinjif tlie electors, iiid the dnyon whicli they shall f^ive their votes ; wiiieli day shall be the same tliniii;'lioiit tlio United Slates. ,'). N'o )iers(iii, exci'pt a imliiral-born citizen, or a citizen of the United Stales at tlie time or the adoption of this coiisiitulioii, sliall hi' elii^ible to theotliceof President ; neitlier sliall any person be elijjible to tliat office, who sliall not hav attained to the age of thirty-five years, aiicl been fourteen years a resident within the United States. G. In case of the removal o'" the ['resident from oiliee, or of his death, rpsigaation or inability to discharge tiie powers and duties of the said office, the same shall devolve on the vice-president, and the (yoni^re-is may, by law, proviih' for the cas(> of removal, death, rcsidnaiion or inability, both of the Pre-^iilent and V^lce-I'rcsideiil, deidariiig what olhcer siiall tlii'ii act as i'resideiit, and such ollicer sliall act accordingly, until the disability be removed, or a President shall be elected. 7. The President shall, at stated times, receive for his services a compensat'on which shall iieitlier be increased nor ilimiiiished during the period for which lie shall have been elected, and he shall not receive within that period any other emolument from the United States, or any of them. 8. Before he enter on the execution of his office, he shall take the following oath or affirmation : " I do solemnly sw^ar (or affirm) that I will faithfully execute the office of President of the United States, and will, to the best of my ability, preserve, protect and defend the Con- stitution of the United States," SPICTION 2. 1. The President shall be commander-in-chief of the army and navy of the United States, and of the militia of tlie several states, when called into the actual service of the United States ; he may require the opinion, in writing, of the principal officer in each of the executive departments, ujion any subject relating to the duties of their respective offices ; and he shall have power to grant reprieves and pardons forolfences against the United States, except in cases of impeachment. 2. lie shall have jiower, by and with the advice and consent of lh>> Senate, to make treaties, provided two-thirds of the senators present concur : and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other othcers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law. But tlie (Congress may, by law, vest the appointment of such infe- rior officers as they think proper, in the president alone, in the courts of law, or in the heads of the departments. 3. The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session. SECTION 3. 1. He shall from time to time give the Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expe- dient ; he may, on extraordinarj' occasions, convene both houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may ad- journ them to such time as he shall think proper ; he shall receive ambassadors and otlier public ministers ; he shall take care that the laws be faithfully executed ; and shall com- mission all the officers of the United States. 80 G (;onstiti:tion of the unitkd statks. t'i SECTION 4. 1. Tlip Picsidpnt, Vicc-Presiilont and all civil offlpcrs of tlic United States, shall he ri'iiiovcd Croiii dtlico on linin-HeliimMit for, and conviction of, treason, Uribery or oIIkt liigli ci'iuR'd and niisdcmeunurs. ARTICLE III. Judicial Power. 8KCTI0N 1. 1. Till' judiciiil power of the United State.'! shall be vested in one supreme court, and in such inferior courts as the Congress may, from time to time, ordain and estalilish. The judges, both of the supreme and inferior courts, shall hold their offices during good bfliaviour; and shall, at stated times, receive for their services a compeusation which shall not bo diminished during their contintumeu in ollicx'. SECTION 2. 1. The judicial jjower shall extend to all cases in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority ; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jiirisdiciion ; to controversies to which the United States shall l)e a )iarty ; to controversies between two or more states, between a state and citizens of another state, between citizens ot dillerent slates, between citizens of the same state claiming lands under grants of dilferent states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. 2. In all cases alTecting ambassadors, other public ministers and consuls, and those in which a state shall be [larty, the supivme court shall have original jurisdictio.i. In all the other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make. 3. The trial of all criuM-s, except in cases of impeachment, shall be by jury, and such trial shall be held in the state where the said crimes shall have been committed ; but when not committed witiiiu any state, the trial shall be at such place or places as the Congress may by law have directed. SECTION 3. 1. Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be con- victed of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. 2. The Congress shall have power to declare the punishment of treason; but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted. ARTICLE IV. SECTION 1. 1. Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state. And the Congress may, by genera! laws, pre- scribe the manner in which such acts, records and proceedings shall be proved, and the efiect thereof. SECTION 2. 1. The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. 2. A person charged in any state with treason, felony or other crime, who shall flee from justice, and Ixj found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdic- tion of the crime. Hates, shall bo r or otliir high CONSTITl'TIOX OF TlIK rNITKI) STATUS. 307 rcme court, and o-ital>lish. The .'S during pood ion which shall sing under thia shiill tx" made, ministers and rersies to which states, between )etwecn citizens letween a state, Is, and those in idictioa. In all ate jurisdiction, as the Congress • jury, and such committed; but ar places as the against them, shall be con- overt act, or on but no attainder the life of the cts, records and eneral laws, pre- proved, and the i immunities of e, who shall flee cutiTC authority having jurisdio- .1. No person hold to serviec or labour In one state under the laws thereof, esciijiing into another, sluill, in consequence of any law or regulation therein, be diHrliiirtred from sueli servire (tr labour: but shall be delivered up on claim of the party to wlioin such service or labour may be due. SECTIOM 3. 1. New states may Ik- admitletl by ihe t'ongress into this Union; but no new state shall be formed or erected within the jurisdiction of any other state, uor any slate bo formed by the junction of two or more sKites, or parts of states, without the consent of the legi'ilatiires of the states concerned, as well as of the Congress. 1!. The Congress slmll have power to di?i«>so of, and make all needful rules and regula- tions rc3])ecting the territory or other pro|»erty belonging to the United States ; and nothing in tl\is constitution shall be so conslrue-(bui'tlis of tlio States jnirMiiiiil to tlic Fitlli Ailiclo oltlio t'oiiHtitiitioii. ARTICLE I. Conprt'ss slmM niiikc no law ri'Sic'-tiii^' uii I'Stnltlisliiiii'nt of ri'li;,'ion, or jirDliiliitinj,' tlio free exercise thereof; or uliridjtinjr the freedom of speech, or of the \iiv-tA ; or the riglit of tlic jicoiilc pcucuubly to nssumbli', unci to petition tiie governnieiii for ii rt'tlreas of (;riev- aiices. AliTM'LE II. A woll-rcpiiliited niililia l)einp ncce.-i.siiry to tlie security of ii free st»ite, the riglit of the l)Coiile to lieeii iiiid bear arms shall not be infringed. AKTICLK III. No soldier sliiiU, in time of pence, he (inartered in any house without the consent of the owner ; nor in time of war, l)Ut in a manner to bo piescribed by law. Altm'LK IV. The right of tlie people to be secure in their persons, houses, papers and ed'ects, against unreasonable searches and seizures, shall not be violated; nud no warrants shall issue, but upon probable cause, supported by oath or allirination, and particularly describing the place to be searched, and the persons or things to be seized. ARTICLE V. No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or ])Mblic danger ; nor shall any jierson be subject for the same oll'ence to be twice put in jeopardy of life or limb : nor shall be compelled, in any criminal case, to be a witness against himself, nor be deprived of life, liberty or proi)erty, without due process of law; nor shall private property be taken for public use without just compensation. ARTICLE VI. In all criminal prosecutions, the accu.sed shall enjoy the right to a speedy and public trial, by an impartial jury of the stiite and district wherein the crime shall have been com- mitted, which district shall have been previously ascertained l)y law, and to be informed of the nature and cause of tlie accusation ; to be confronted with the witnesses against him ; to have compulsory process for obtaining witnesses in his favour; and to have the assistance of counsel for his defence. ARTICLE VIL In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved ; and no fact tried by a jury shall be otherwise re- examined in any court of the United States, than according to the rules of the common law ARTICLE VIII. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. ARTICLE IX. The enumeration, in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. ARTICLE X. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. (The 10 preceding Amendments were ratitiod iu 1791.) COXSTITrTloX OK TIIK rNITKI) MTATKS, :m llu> States imiliiliitiiiK the Of tin- riglit of divas of nik'V- tlie v\g\il of llic • consent of the 1 eirocts, iigiiinst ^ iUaW issui', but i;ribiug llif [ilace crime, unless on lu land til- iiiiviil linger ; nor shall lift' or limb ; nor nor be deprived roperty be taken eedy and public have been com- |l to be informed se3 against him ; ve the assistance •enty dollars, the 1 be otherwise re- of the commoa \\iel and unusual Ustrued to deny prohibited by it AUTICLE XL Thi' jii lii'iiil |ii)Wer of t'lc l'nileis liii- |( 'I'sou vmcd for m I'ri'^ide i', ami in dis- tinei billots Ihe piTSon vo:i-d for as Vief-rresident ; and they -^hali make ilisiiucl lists of all persons voted forns I'resiili'ii;, and of all persons voted for as Vice-l'ri'sidem,and of the iiunihcr >',f „tcs lor i^ach, nliieh lists ilicy Hliall sign aiiil certify, and Uansinit seah d to tiio scat of the giivi-rnnient nf thi- L'niled States, ilin-cted to ihe I'l-esidi'iit of the Seiiate;— the I'resiil rit of the Senate shall, in lli<' presc lee of Ihe Senate and ILnne of iv"presi'iii.ilives, ojieii all the eerlilicatcs, and Ihe voU-s shall t!i 'U he coniiled ;--tlK! prson having llx- greatest MUliil) r cjf votes for President, sliitll be the President, it siieh iiiiiiiher h' a majority of the whoU- niinilier of idect;irs appoinifd ; and if no person have such iiiajuriiy, llieii IVoiii the ])er.-oiis liiiviiig the hi;.'liest :iiin>li<-rs, luil exceeding three, on the list of those .oied for as Pre-iilent, the House of Kepn-seniatives shall choose immediaiely, by ballot, tiie President. IJiit, in choosing the President, the votes shall be taken by Slates, the repteseiitation from eac!i Slate having one vole: a'|iint nas rutiliiil in I'^ei.) AirrirLK xin. SECri i.N 1. XiMiher slavery nor inv.iluatary servitude, except as a p .nisluiient for crime whereof the party shall have bee i iliily convicteil, rhalle.si-t wilhin •ih;.' United Stales, or iiny place subject 10 their jiiriadiciiou. »::ciio\ 'i. Congress shrill havi- power to enforce this urtiele by appropriate legislation. (Ihf Ilili Aineiii'uieiit was ratitieU in IRS.) ARTICLE XIV. si;criox 1. All persons born or nitnralizcd in liie United States, and subject to llie jnrisdiciont thereof, are citizens of the United Slates and of the Stale wherein they reside. .\o Stale shall niMke or enforce any 'aw which shall abridge tlie jirivileges or immunities of ciiizeiia of the United Slates ; nor shall lii'y .State deprive any person of life, liberty, or ]>ro|)irty, without due process jflaw: nor deny to any person witliin its jurisdiction the equal pro- tection of the laws. 400 CONSTITUTION OF THE UNITED STATES. m •4! m SECTION 2. Representatives shall be iiiiportiont'(i ainoiig tlie several States according to their res- pective numbers, counting the whole number of persons in each State, excluding Indians, not taxi (1. But when the right to vole at any election for the choice of electors for Presideni- and Vice-President of the riiited States, llei)resentatives in Congress, thti Executive audf Judicial olficcrs of a Slate, or tiie members of tiie Legislature thereof, is denied to any of the male inhabitants of such Slate, being twenty-one years of age and citizens of the United States, or in any way abridged, except for participation in rebellion or other crime, the basis of representation therein shall l)e reduced in the proportion which the number of such male citizens shall bear to the whole ninnber of male citi/.cus twenty-one years of age in siich State. SKCTION 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any SUte, wlio, having previously taken an oath, as a member of Congress or as an ollicer of the United States, or as a member of any Slate Legislature, or as an Executive or Judicial officer (if any St^ite, to sup|oil the Coustilutii>n ot the United Slates, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies there- of, liut Congress may, by a vote of two-thirds of each House, remove such disability. SECTION 4. The validity of the i)ublic debt of the United States, authorised bylaw, including debts incurred for payment of pensions and bounties for services in sujjpressing insurrection or rebellion, shall not be questioned. Hut neither the United States liorany Stale shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against ilie United States, or any claim for the loss or emancipation of any slave ; but all such debts, obliga- tions, and claims, shall be held illegal and void. SECTIO.N 5. The Congress shall have power to enforce, b; appropriate legislation, the jirovisioiis o! this .\rticle. (TKu mil Aincndmeiit was ratified in 1868,) ARTICLE XV. SKCTIO.N 1. The right of citizens of the United .States to vote shall not be denied or abridged by the United States or by any Slate, ou account of race, color, or previous condition of servitude. SKCTIO.N 2. Tlie Congress shall have power to enforce this Article by appropriate legislation. (The 15! Ii Amendment was ratilieil in 1S70.) to llieir res- liug IntUans, for l^re^i'U'nt ;ecuuve amlf ied to any of iti/ens of the r other Clime, lie uuinher of -one yeftr3 of CASES NOTED OR DIGESTED IN THIS WOEK. Pi-esi'U-.it and or under any .3 an otUcer of ve or Judicial have engaged ; enemies there- 1 disability. including debts ■ insurrection or ;iie shall assume rainst the United Bh debts, obliga- l,e jti-ovisions of or abridp-xl '•>■ ous coudiuou ft LHrisUUiun. PAOK Abbott V. Macdonald .'Ud Adainsoii c. Cleiiiontson 1H4 Allison v. Robinson JUS Alniy (1. California 358 Arbitration l)etween Out. and Quo.. 151 Annstronjr c. McCutohin 175 AHtill V. Hallee IHl) Atty. Gen. i'. Bowman 190 — i). Hallett 5:5 — 0. Hailing et al 5.'J — V. Nia'^ara Falls Bridj^e Co 31<> — V. O'Reilly S.H — V. Radlolt 190 — V. Queen Ins. Co 207> 275 — of Quebec r. Atty.Gen, of Canada .'i52 — V. Tom line 352 Ballagh r. Royal Mutual Fire Ins.. . 2GG Bankers Case 52 Barleniever o. Iowa 2.'U Barthe (•■■. Clievaiier 112 Beard v. Steele 315 Bedanl , hi re 3.{ I Beer Co. r. Ma-^siu:iiusetts 234, 243 Bell «. Cor|ioration de Quebec 143 Bi.sliop of Natal 2fi, 52 Bdurgoin V. La Cie dti Cli. de F. M. O.&O 235 Bouvier, in re 372 Brown r. Curate, Ac, of Montreal. 230 Brown V. Maryland 134, .357 Bryne, ex purle !-» BuVdett I'. Al)lK)tt 74 Buron i'. Den mail 50 Cameron r. Kvte 47 Campliell r. ftall 2G, 52 Canterbury r. Queen 4H Carter r. Miircot 1()7 Centre Welliiijiton Election 319 Cliaudiere Gold Mining Co. & DesbaratH 315 Chicago, B. and Q. R. R. Co. v. Iowa 233 Church v. Middleiniss 317 Churchward r. The Queen 48 Chy Lnnir !!. Freeman et al \'.',1 Citizens Ins. Co. it Parsons 237, 2(i9, 288 City ot Fredericton r. Queen. .. 123, 281 City of Montreiil & Devlni 347 City of New York d. Miln 245 PAGE Clemens v. Bemer 191 Col. )}ank of Australasia v, Willan.. 346 Commonwealth r. Hawes 373 Cooey & Municipality ot Brome. . . . 362 Cook V. Pennsylvania .134, 137 Corp. of St . Roch v. Dion 122 Corse i\ Corse 187 Cote r. Watson 175 Cowan r. W right 247 Crandall r. Nevada Credit Foncier of England v. Elec. Amy 343 Credit Valley R. R. Co. v. Great Western R". R. Co 237 Cushingi'. Dupuy 177, 342 Cuvillier r. Aylwin 342 Cuvillicrr. Dupuy 342 Damon's Appeal 178 Diinsereau, ex parte 108 i )avenport r. Regina 52 Dawkins r. Paiilet 50 Dear r. Western Assurance Co 2()6 Denton r. Daley 51, 124 Dn-ect r. S. Cable Co. r. Aniilo Am. Tel. Co lo(>, 157 Dixon f London Small Arms Co. . . 182 Dixon et al. r. Snetsinger 167 Doliie& Board of Temporalities Fund, Ac 247 Dow r. Blajk 139, 339 Doyle V. Falconer 73 Doyle V. Continental Ins. ('o 2.'i3 Ducat r. Chicago . 314 Duiii'an, e.r />«/•/(; 319 Ea-ton's (^ase 1 90 Eduljee Byramjee, ex parte 344 Eliza Keith r. The Lansjrsliaw 144 European and N. A. R. R. Co. i\ Thomas 241 Evans e< «/. r. Hudon ci al 141 Fabrigas (\ Mo-^tyn 43, 46 Fairbain, ex parte 229 Falkland Islands Co. r. The Queen.. 343 Fe It hers r. The Queen 49, 182 Fenton c. Hampton 73 Fletcher r. Rli(«le Island 233 Foster V. Davenport 1.39 Foster w. Wardens of New Orleans. . 138 402 CASES NOTED OR DIGESTED IN THIS WORK. Ill ''it «-: i'Af;p: Gage V. Biites 1(17 (jiiy V. Baltiinoiv Xi^ Gforge I'. Tlie Queen iH2 Gil)l)uii.s c. Uj;.ieii l.'M, V.i'J Giiiiey V. Ltirti I'tilinerstuii lis (ioodliui', in re 2.11) Guiuiilui'k f. Muni', uiiil Mer. .M. F. Ins. Co 2;i2 Giund i'lMink K\ . Co., and Credit Valley Rv . Co.", «kc 'MM Giiiiiih, //( re 'MO Hall r. J)e Ciur I;i7 llainiltwh ('. Heuucliene 112 iiai t el Corp. Missisciuoi 12;{ Harvey r. J^onl Aylnier 42 Hender.-on et at. i\ Mayor of N. Y. l'M> Henley it Co., lit re l.Sl Heh^on r. Lott 22(> Heriierl c. I'lirclias ;{42 Hill le Ill Laiiibkm c. Suuili I'-a-tern U. U. Co. 344 Liimiranile, ex parte otio Laniier.> r. \Vouil>\vortli . . . . .. ...... 7.1 Liiiijiun, ex parte 1415 Langloi.-^ c. \'ulin ;U.S Lav\ie.-.s (". Sullivan 22.') L< acli ('. M'jiiey oU Leiioir f. itiiciiie .jJS, (jl, '.IT, 110, 375 J^i prolion i: City ol Uuauu 140 Leiellier's Case iis Levet-ijue . c. Soul'' 214 Packet Co. r. St. Louis 358 Paige r. GiilHili 322 I'apiii, ex piirtc 322 Parker c. Green l".)0 Parsons r. Citizens Ins. Co 267 Parsons c. Queen Ins. Co 269 Paul r. Virg.nia 27.3, 275 2.S6 " 21)6 " :i04 314 Siiield- 31 'J 226 Wlieeling, &c.. Bridge C 144 Peiisacola Tel. Co. r. Western Uii. ■ Tel. Co 130, 142, 2V.., 286 People c. Rcn^. and Sar. R. R 143 I Pei pie r. Slip! rv i.~o)s ol Wcslcliesler 316 PerUy et al. r. IJiirpee 176, 330, 362 I Pliillipsr. Fyre 47,51, 65 \ Pieici- r. I>ui tiam 226 Pierce r. Niw ll.iiiip-liire 2.33 Poiti-as A: Corp. ol (.iueliec 320 Pollard /;( re 74 Pope»k Giillitli 323 Pound r. Turek 318 Propeller Genesee Cliiel & Filzliugli. 144 Queen r C ol Sierra Leone. . 74 Rainey v. 'i'ru-tees ol Sierra Leone.. 343 Ramsay, T. \\.,iure 74, 341 Reguia V. .\iner 51 — V. Black 322 — V. Boardman 320 Peak r. Peete c. Morgan . PennsvK aiiia / PACE .. . lt'>6 ,141 ,27'J, ;5'iO ... \M v ^■>i ... lil (Jiiii m-i.. rr-i .... it;7 '. 22(1 •':)2, 214 ... :ii'J . 45 ales re.. ... 246 '..120, :'.lS .L. Sli'ii'ii ..14:5, :U7 . :;7'J ... :i.'«d lii.l lerra Leoiie lerra Leone I'AfiK Rcj^ina r. Biirch 51 — '('. Coile^'e of I'iivs. & Surj,'s 321) — r. Clianiller.....'., 174, 240 — ('. LaHTCiice 1 92 — i\ Lake 1!U — V. Peters I 13 — r. Rucldv IHD — r. .Iii-tieesofKiiig.sCo..l21, 12.!, 230 — r. Tavior 125, 215 Ke.x i\ .Mveis 190 Ri'vnulils'c. Tlie Uniteil States ]tr, Provi;ions"r:&ng to Gov. Gen. and Lt.-Gov «.PPly to Chief Executive uthcer or ^■>^ >/., -'"Place of LiW-Gov------ '^'^^^ pointed bv (Jov . certain cases Admiralty Courts, Salary of Judj, Admission r,rnt]L',.'n\'\'..['.\ '^^2 Appeal, Court of, for Canada. . . . ''f^o -to Gov Gen. in School Matt;;; •Appeal'SS"."'"'"""'^""'''^^''----^^^^ • Appeals to Pri vv Coiincii ' .' ." fl Appointment by Gov. Gen. of DtV,,',,"; 37 _ _ _J- of Lieiit.-Gov. r A J ■ • Cases .... of Administrator in place atLieut.-Gov. ... , ~ l.y Gov Gen of New Omce",;:".'. L, ot; Members of Senate . 70 ~ 7^- r^i ^.P^a'^^''- «f the Senate .'.'. 4s - of Atty. Gen. and other Executi;; Ofhcer.. of 0. and Q. bv J-.ieut..Gov 1,1/; t-i Appropriation Bills to origi'mUe in Hou.«e of Commons:... r.o - Bills to originate in ProvinJial l^egislutiires 1,. Arbitrators respecting debts, &c.V of '-'Ppf''' and Lower Canal-i Q7Q Assent to Bills of Pari, by Govern^; -toBiir''Ty''''^l'>'''-Q^'«^'^^^^ - to Bills of Prov I.ei'islaturps A«.emblv, Legislative.' 0? a „„a Lieut.-Gov., constitute a J ture ^egisla- 96 96 11 to be Gen. ap- in 107 ges !!'.":"*i",'^^9!''e'' Colon ie,. 8 Priv\ ic Works, Coml Advice of the Queen's Privy Council AgricultureandPublic Works ' 37 374 --and Council of Q. wVti/Go;' ^^"."; constitute a Legislature - (see Legislative Assembly) - of'Lrr""' ^''■^" ^'rov. debts.. 354 "'ate Province of Canada. . 355 -of Ontario & Q„ebec OSW^e.?,, ;i) Ht Asy u„,«,Cha,.|tie..,&c., i„ Province 20 ^'?;^-.,t':-^'.«,:--'y-'-ppo."ted hy Lieut.-GovH. to be members ofExVcuViv; Council .... 374 106 niissioner of.. - and Immigration. ciiVcuVreiVt Povvers of Pari, and Prov Legislatures ' 00, Aliens a^d Naturalization.". '.'.'.'./' "* Alteration of iectord Di.SicTs by Legislature of Q " inn Amendment of Prov. Constitutions.. 206 Auctioneer and other Liceii's'e's ■.".■.■.■; 306 jgANKRUPTCYandlnsolven in 115 184 ^ — Cases I5ankingandIi,corporationofBan"kf •'aiiiis, havinijs. ., iic Bank of Ensland .■.■.".";; |i^ 173 115 Beacons ami Buoys ,,? B. s of Exclmn.e ami Prom". "No't;; {5 BillsofParl.,A...«entbyGoy.Gen.to 96 406 INDFA'. [.Hiitters not marked * 'I Bill", Assent of'Qiiocii to IJosprvod . . 'M> nisallowiiiH'i' of, liy Qnccii.... '.•(• Siiriiiliciition of DiHiiUowaiici' . IM! lli'MiTvi'il, liou- uiiinilli'd !»(> wlicii t«j lit' ill force 'Jtj Moiicv iiiiii Tax, to lie rccoiii- ■ iiciidi'il \\y Gov. Oeii 'Ji — of Pi'oviiicial Lcfrislatiires 114 — , Moiifv, to lip re<;oiiiiiR'ii(ii'ii liv l.it'iit.-(Jov ■. DQ J3oiro\viii<; of !Mi>ih'v liy Provincial Jjcjrislatiircs 'IOC * — — — Cas(s -j-ji; Iiv railiaint'iit of Caiiailrt. . 115 British Cohunhia :i-'0 — wlit'M admitteil into the Uiiioii... .'582 " Briiish N'oi'tli AiiH'rica Act, ISiiT " Short Tilk' 27 British North America Act, 1871 . . . 383 •/-^ABIN'F.T Council, origin of. ... .34 Canada, Dominion of, constituted.. -8 con-litutcil fniiii lale I'rov. of Can., X. S., aiidX. B 2S — di'clared to lie the nanio of the new Dominion 2H — divided into tour Provinces 28 liaide for Provincial Delits li.Vt — Transler of existiii;^ Ottii'ers to. . . 'M'^ Canadian Manul'actiires andl'rodiu'c 357 Candidates for Senate, Resliictions in ca.sp of Q as to re.sidence and pro- perly 7lJ Ca'-iing vote, SpeaUer of House of Commons to have only a 03 Sjieaker of fx'gis. Assenililies ol O. and Q. to have only a. 113 Canal.=i connecting Provinces, A'.; . . . 207 Cen-iis anil Statistics 115 — of [lopnlation of Canada (1871). . 2'J — D'Cennial Re-adjustment of 1)3 Cliaiities, Hospitals, Asylums, &(.'.. 20() Civil Procedure ill Prov. Courts 207 *_ — — — Cases.... 318 Civil Rights and Property in Pro- vinces 207 — — — Ca.ses.... 23i> * — — — U.S. Decisions 243 Coinage and Currency 115 * —,—.—. Cases.... I(i8 Classes of Suliject.s as.«igne(i to Pari.. 114 to Provincial Legi>latures.. 207 Colonies, Admission oftitlier 380 Command-in-chief of Militia, ttc... (54 Commerce, Regulation of. 115 — — — Cases.... 121 * Commission Royal to Governor 37 Coinmissioiier of Agricul. and Pub. Works of U. and Q .373 — of Crown Lands of 0. and Q 373 , Appointment of (see Execu- tive Otficers) 106 PAfJK Commons, Cidistitution of House of.. 85 — (see House of Commons), — , Privileges it Powers of House of. 09 Companies, with Pro\incial olijec^s. 207 — with olijccts declared hy Parlia- ment to lie liir general ad- vantage of Canada 207 (Toiicnrrent powers of Le>_'islation as to Agriciillnre and rniiiii;j:iation . . 330 Consolidated Revenue Fund of Can. ,"'49 * Lord Carnarvon iqion .... 3(9 of Provinces , 3()0 Coiistitiition ol' H. of Commons 85 ot Senate 75 * Constitution of U.S 3'Jl CoiiMlruclion of words and provisiijiis. — "Governor (jleneral in Council".....^ 37 — • "Lieutenant (Jovernor ". . . 105 '• Lienienanl (rovernor in Council " 107 in 'rem|Kirarv Ai-ts of late Province of ('aiiada •>78 * Controverted Elections .\rl .3.','^ — — — Cases.... .333 (\)pvrights 1 15 * " — — — Cases.... 182 Council (see Legislative Council). * Councils, Nominated and Elected Legislative 80 * (^onncil, Origin ot' Cabinet .'i-l — Kxecutive. of O. cV Q 106 NovaScotia& N. I! 10t> — Privy Council for Canada.... .'i3, 37 Councillors, Le;iislative, Qual 3()1 of Q., Qualilication 3(11 * Corporations, Rights of Religious . 247 * — Insurance 2ii5 * Counsel, Appointment of Queen's. 59 Court of Ajipeal for (^uiada 3:i2 Court, Supreme, tlir ('anada 3.'>2 * and Privy Council Apjieals 337 Courts, Con-^titntiou ot' Provincial, . . 207 * — Authorities on Jurisdiction. .. . ."ilS — Continuance ol Existing 3G1 * — , Provincial, Appeals from, to Privy Council 337 Civil P'roceduie in 207 — , Establishment of l'\'ileral 332 Courts of Canada and Quebec, French or lOiiirlisii inav be used in. 37.3 — of 0., N. S. & X. JL, Provisions for unifonuity of Proce- dure in 329 Criminal Law anil Procedure 115 * — Jurisdiction, Cases on 189 * Crown, Actions against Represen- tatives of the 42 * — Prerogatives of the 54, 193 Currency ami Coinage 115 * — — — Cases 168 Cu.-toius and Excise Laws of Pro- vinces 359 rs not marked * I'.KC.K [on.si" of.. y5 House of. 09 1 olijfotH. 207 ,y Parlia- •ni'Viil »'!- 207 -liitidii as i. rial ion. . -5^0 ,1 of Can. ;;»9 upon ...• •''•' , ; -.m nons i^** 75 ,V.' ',..... :5'J1 n'ovisions. ■nenil in ernor ". . • ^Oo veriior in 107 ■in of latf -la •■"« A.'i :»:53 Cases 'y>'-^ 115 'cases.... 182 '(Uiiu'it). u„i Elfotcd 80 IK't '4 . 100 \ 10t> ;,la.... :»:^:^J Qiuil :5(il _ :i()i ki'ligioiis . 247 2t)5 li-'QuVen's. 59 ,1,, :«2 la H;52 cil App^'al^ '^'-^^ oviiicial... 207 liclion •>1^ in- ^itil Is from, to .... ;w7 *" ' .... 207 'i^v^'. :«2 \ii' ust'il in. 373 Provisions uf I'ruce- 329 hirV. 115 n l«i> t Represen- ... 42 ".'."."..54, 193 ; 115 Cases.... 1C8 laws ol' Pi'O- 359 re/tr to Text of Act.] INDEX. 4U7 PA(JIO "1\ATE of Union, 1 July, lSi;7... 2H iJclits ami As-fts of I'pptM- ami L'pwcr Canaila MTU lo lie ailJMsti'cl liy Arliiliatiun.. .'iTl* — Act to rc-aojust Provincial I!."i4 — Prov. lialiility to Can. fur excess of .'>").") J)eliH, Interest on Provincial ."'jO — of I'loviiHies assMineij l)y CaiiaiJa. '.<')l — -Moile of Paynienl of Provincial . . 357 Delit, Piililic, ami Propei-iy 115 — of late Province of ("iiuaila .'!.") I — O. anil Q., lialilc to Can. liirexcess. 351 — New lir'wick., lialile lor excess uf 355 — Nova Scotia, lialilc for excess of. . .')55 Decennial Census 8!) Decision is in nejralive in Leu'l-lative Cdiin. oi' Q., when Voices are epial lO'J Declaration of Qiiahlicaticiii liy .Mtin- liers of Senaie 3(11 — liy Lejrislative Councillors of Qiielie(! .'idl — Sn> Sill Schedule 7(1 — of Union 2s Defence, Military ami Naval 115 — uf the Country, ri}>hL ol Canada t) a^simie lands lor .'i5() Deiioininational Schools 'A'H * Ca-es 325 Deputy, may be ap))0inled liy (iov.- (leii 37 Direct 'J'axatiuii liy Prov. Lej^isla- 1 11 res 2(l() Disalhiwance tiiig. continued until Parliament otherwise pro- vides 91 former, shall apply to (). & Q. Ill ' Ca--es a- to revival ol penal- ties under 112 — ol Speaker of H. uf Commons.. . . '.'i I'ilectioiis Acl, Controverted, Ca:-e<. ^I 13 Electoral Disiricts of Que. speciallv lixed (Sri,,': I II lei) ". 110 in the Pidvini'fs H)r the elec- tion of niemhers to the II. of Commons 85 for the election of Mcmher- to LcL'. Assem. of Q. same a-^ lor II. of C 109 ill Schedule 2, Uestriclioli iijion altering 110 — District of Algoma, Qiialillcation of Voters in Ill Emigration from other countries.. . . :i,!0 English or French m(l, Tlie Pro- viiiccx (Proainlik-) 21 * I'\'ileriil Compact, Lord Curnarvuii on tlie 118 • Provincial Deliiitcn on the.. . . 22 • Sir John A. Macdonalil on the IC, 11!» • Sir A. A. Dorioii on tiic 22 • Sir E. P. Tuscho on the I" * Atty. Gen. Carlicr on tiie 21 • .loiin Macdonald ('l\>roiito)on. 2li — (jrovernnient, Jurisdiction over certain Classes of Snhjects. 114 , Jiirisdiclion oC, over certain local \Vorks& rtniertukinjrs 207 , Concurrent .luri^diclion, over Ajrricultiire and Ininii<;ra- tion :!;!0 — — to provide lor nnil'orniilv of laws ill O , N. S. k N. H .. .'120 to carry out Treaty Obliiiations lid,'! may appropriate Prov. Properly (or del'enee ot the ("ciiiiitry . . .'!.)(1 — — lialile lor the Dehts di' eacii Province at tlie L'nion .",.i4 what to he the Property of. . . . '.\\A Property of", not liahle to taxa- tion .'iOO Federal Union, Nature oC the (Pieamhie) 21 * Diike of Manchester on an liii|K>rial 2i) • L^rd Durham's Scheme ofa. lii Felony, a conviction of Felony dis- ipialitie.s a Senator 84 Ferries hetween Provinces, A'c llii Filth Schedule, Oath of Al]ej!;laiice, and Declaration ofQiial Tt! Fine, Penally, &c., Piinishmeiit l>v . . 207 *— — — — — Cases ;!20 Firt^t election of Memhers of II ofC. 01 First Schedule— Elect. Districts o( O 8G Re adjustment of 88 Fisheries, Seacoa.-t and inland 115 • — Seacoast Fislieries Caces. 144 • Award ajjaiiist Americans for. IJIJ • — Inland, Federal authority over IfjS • CVes 158 Fortifications, Canada may assume land tor 35G Fourth Schedule— Property of 0. & Q H55 Free, Canadian Manufacturers and Produce to he admitted into other Provinces Cases. H57 French or English may he used in Pari, of Can. and in Leg. of Qiiehec French and English shall he used in Acts and Records of I'arl. of Can. and of Legislature of Q 373 Functions and Powers vested in Governor General 37 Fund, Provincial Revenue 360 PAOK GOVERNMENT (Jeneral (see Federal (iovernmeiit). Jurisdiction over Classes of Sllhjects 114 — Federal E.vecntive 30 — Federal, may approjiriate Prov. Property 35(5 — Pi\)vincial Executive 07 • Cases 31 — Ollicers of Prov. Executive ..... 07 •— _ _ — Cases. 31 — Federal Legislative (>G — Provincial liCgislative 107 J urisdictioii over enumerated Classes of Siihjects 20G Governor, and lit. -Gov. I'rovision.s rclerriiiLr to, applicahle to other Chief E.xec. Ollicer ;!1,105 — Royal Commission and Jiistruc- tions to 37. 40 — Powers vested in 30 — Pardoning Power.'t (if. G3 (i()vernor (Jeneral in Council .■'7 — Duty of, in case ofa reliellion.. .. G5 — Duty of, as to Hills of Pari OG — A.-seiits to Rills in Queen's name. OG — withholds the Queen's a«isent or Reserves Rills 9G — Signifies Queen's liisallowance. . . OG — appoints Lieutenant(jovernors. . . 07 — apiHMiits Deputy Lieutenant Gov. 1(>7 — may remove Lieut. Gov 97 * — (jpinions as to dutv of removing. 08 — Salary of. .' 350 — may appoint new officers 3G.3 — may appoint Executive Othcers.. 3i').'5 a Deputy, if so authori/eil . . 37 — may sumiiKni persons to Senate.. 70 additional Senators, if. «o au- thorised 81 — to fill vacancy in Senate 84 — to apfioint a Speaker to Senate... 84 — mav dissolve House of Commons. 03 — Money vt)tes to he first recom- mended hy 94 •— — — — -- Cases. 94 — to appoint Judges 9G — When Judges may he removed liy 332 — to direct tlie mode of payment of Federal Debts 357 Grants l>v Canada yearlv to tlie P'rovinces '. 3.5(5 Great Seals of Out. and Que 374 * — — of Nova Scotia ami N. ]}.... 375 * Great Seal case of Nova Scotia 375 •riEADING of Laws in various JLI Provinces .30 Heirs and Successors of Her Majesty. 27 Hospitals, e'-tahlishnient of Marine.. 115 — Estahlishment of Provincial 206 House of Commons, constituted 66 Representation of Provinces in. 85 nnt marked • I'AUK il (see issert of 114 :!0 I' Prov. .... 3r)<> ... i>7 ■".... :u ;e' !>7 Canes. Si . . . tiG ■/. 107 iincrated 206 rovixioii^ Iculili' to ) nicer iU.lOf) liistnu-- ;n. to .... '^C> ... g:? ■ilV.:.... :ii icllioii.. .. ''•'> 'iirl. ..-. •»>; nV miine. DO ii-iscnt or 9C) )\v!nu;e. . . -"' lernors... !'7 >naiit Gov. 107 V 'J7 renioviiit:. ''^^ ... SoO VV. 3t;:i Ollieers.. SiiS tlioii/.eil. . S7 (jSeiuitf.. 79 •s, il'soau- ... 81 V.V..' 8-t 1 Senate... 8-1 Conmions. i).{ st reconi- 94 -- Cii>e.-. 94 96 [finoved l)y 332 )avinei)t of .•; 357 V to the .... 3.56 ne'..".' 374 [1 N. H...- 375 Scotia.... 375 [in various 30 cr Majesty. 27 t Marine.. 115 Dcial 206 itnteil 66 •oviiices in. 85 refer to Text qf Act,] INDEX. 409 PAf! K House of Common, Duration of.... 9.S DecM'nniai re-aiiji'stnient of . . . 93 Privileges and Powers of 69 •— — — — Cases... 71 Number of Members of 85 Gov. Gen. to Summon 85 Senators discjualitied from sit tini; in 85 Fir^^t Election of Members of. . 91 ('asual vacancies in 92 Election of Speaker of 92 Quorum of 92 — — Voting in \)'A Increase of Men)bers ol' 94 Money vites (o originate in ... 94 Uatii of Alleg. bv Members... 361 * Houses, Nominated tipper 67 •— Elected Upper 68 * — Tlie system of two (!6 * Hudson liay Co., Lands acquired.. 381 IMMIGRATION and Agriculture, Concurrent powers of Legislat'n 330 Impost ]}ills to originate in H. ofC. 94 to originate in Legis. Assem- blies. ..^ 114 Imprisonment, Entbrcement of Prov. Laws bv 207 •— — — — Cases.. ;i20 Incorporation ot lines of SteamsliipH. 207 •— — — — Cases.. 2:i4 — of Railway Companies 207 *— — — — Cases... 235 ■ — of Companies with Prov. objects. 207 — — — — Cases.... 2.'i7 Indians and Indian Lands 115 Indian Lands, held subject to trusts. 352 •— — — — Cases... 353 * Insolvency and Bankruptcy 115 •— — — — Cases.. 173 disqualifies a Senator 84 * Instructions, Royal, to Gov, Gen. . 40 •Insurance Tax Case 208 * Insurance Corix)rations, Rights of 265 Intercolonial Railway 380 Interest, Legislation upon Usurv and 115 •— — — — Cases 170 — of Provincial Public Debts .350 — Payable to Nova Scotia and N. IJ. 356 TUDICATURE. VII 330 to 349 Judge8,App'd. by Gov. Gen. except of Courts of Probate in N. S. and N. IL 330 — of the Superior Courts, tenure of office and how removed .... 332 — of County and District Courts... 332 Judges to be selected from Bars of Respective Provinces 332 — Salaries of, fixed and provided for by Parliament 332 •- Precedence of, given bv Crown.. 331 * Judicial Committee of tlie P. C. . . 339 PArjE •Judiciary Depart, of Government.. 32 * has Power to decide upon Constitutionality of Acts... 331 * Justices of the Peace, App't. of 54 see Courts. K INO— See Crown. LANDS, Exemption from taxation of Public .360 — reserved (or Indians, and Indians. 115 Laws, Continuance of existing 3(!1 — Uniformity of, provided for 329 •— — — — Cases.... .330 — Administration of Federal 3.'t2 — Enforcement of Provincial 207 Legal lender, Legislation on 115 *— — — — Cases.... 172 Legis. Assemblies, Powers of. . 107, 108 ofO. &Q., how composed, 107, 108 of (). and Q., how summoned. 110 of O & Q. , Qiiorntn of 113 of O. &, Q., Moile of voting for mendiers of 113 ofO.& Q., Eligibility to Ill of 0. & Q., Former election laws aj)nlicable Ill of O. & Q., Ineligibility of certain ofiice holders to. . . . 110 of 0. & Q., As to qual. of vo- ters and members of Ill of 0. & Q., to continue for four years 113 of O. & Q., may be dissolved by Lieut. Governors 113 of 0. & Q., Election of Speaker of 113 of 0. & Q., Duties of Speaker 113 of O. & Q., Absence of a Speaker to 113 Legislative Council of P . E. I 108 -of Q., vacancy in. How it oc- curs 109 of Q., Speaker to have a vote.. 109 of Q., Decision in negative when voices are equal 109 of Q., how composed 109 — Councillors not to become Sen- ators 361 ofQ., Qualifications of 109 of Q. , Declaration of Qual 361 • — Department of Gov't, Checks upon 32 Legislative Power, Federal 66 to 97 Legislative Power, Provincial. 206to329 — Powers, Distribution of. See Powers. Legislative Powers of Parliament. . . 114 of tiie Provincial Legislatures 206 • in U. S. and Switzerland 119 •— Union, Provincial, Debates on.. 28 410 INDEX. IMatlem twi marked • Ti Loirisliifurcs, Appropriation & Tux iJilis of I'rov Ill — may amend Prov. Constitiilinns. 2(Mi •— ' — — — Cases... . 207 — ofO. A- Q., First Session of 110 to pniviilc as ti> eli;jiliilily tu liCjiis. Asseml)lie8 Ill Yearly Si'-si(Piis oC Il.'J — ot'N. S. iV 5J. 15.. liuw constitiitrd li:{ — Money Votes unci I!ill< of ill — Assent to Mills of hy Lieut. -(juv. Ill — Uisallowaiiee ot Hills of Ill — Reserved Hills of Ill Le^iislature tiir C, liow eoMi|io~ei| .. Id" lA'iiislatiire lor Q., liow eunii)o>^eil. . . lOH •Licenses to sell hi,|Uor. . . , 12:!, 1H9, I'.M — tu rui-'e a Uevejiiie lor I'rov. Purposes 2fl(> • — Rliop, SalociU, Tavern ami other, 227 • — Construction of words " and other Licaitnes " 125, 2.'!0 •LicenPO 'J'a.x, V. S. Decisions l.">-t Lijriitliouses IKO Lieut. (Jov. uf & Q., to appoint Ivxecutive Ollieers .'i7li appoints Kxecuiive Councillors lOG apiioinls additional otlicern and clerks 37.'^ prescribes duties of Otlicers. . . .'IT.'i sunmions I.eL'ishuive A»em.. 110 J'owers and Funetiiiis vested in lOG of O., and one Hoii-eto lie the Lej;islaiure for O 107 of Q., and two Houses to lie the Lej;islatnre tl.r Q 10>< anponits Le^zis. Councillors... IilS tills vac^ancies in Lei^is. Council lO'J — — appoints Hud reincjves Speaker of Prov. Lcirislalure lO'.t • lli^'hts and duties ot 102 , Pari, to tix and provide Sala- rie-iof 10.') — Appointment of. 07 Oath of OlHce of 10.') Tenure of OlH>;e of 97 Duty of (Jov. on lieiuovin;^ .. 97 Opinions on Ilemoval of 98 niav ajipoint a Deputy 107 •Local Matters in the Provinces 207 — — — — Cases.... :{23 Lower Canada, Former Province of, consiiiutes Province, of Ont 28 Name of, may he used 378 •Lumher Dues of N. B 859 abolition of 3G0 M ANITOBA, Admission of 381 Marine Hospitals and Quarantine. .. 115 Maritime Provinces with, O. lieal Property Qiial. in ea-^e of Q. 7*) — of Pari. tV of l,e;,'i:'^latnres 114 Municipal Institutions in Provinces. 20t; 'Municipal Taxation — Cases 227 NAMES of Upper Canada and Lower Canada may still be used 378 Naturalization and Aliens 115 •_ ._ _ _ Ca:. . . 70 North-Western Territory, admis.-ion 382 Notes, Promi.-sory, and Bills of Ex- chaiiL'e .■ 115 Nova Scotia, N.B. and P.E.I, cons- titute 3^1 Senate Division. 382 • Nova Scotia, (Jreat Seal case of. . . 375 Number, Normal, of Senators, 72. 75,81 Additional in certain case.s. 81 not to e.xceed 78 81 OATH of Allegiance (Fifth Sche- • lule) 76 bv mem Iters of Parliament (5th ■ Schedule) 361 ■fii >( marked • n/er to Ttxt of Acl.] IX I 'EX, 411 PAtiB n on . 11 •'» 8.... 1-^^ ... "-^''T .1.... •■!:«>< ... ll'' s5 WW i>i "<• o tttkc :uu jtQnul :?<»l 81 e8 nmi !'.'..... 115 It'll •'* rxin-rtv) :?'>2 llif . . . • :54 uviiicial . . .. 206 CnfP!* • • • 2-'' ifiit.... 115 'uxutioii. 11^ neiil !'•' cs ''■* Cii^i'j'.-- 'J5 .Gov... 1>4 iisUiiiireH 11* loviiice:^. '20t> liivla ami U5 ill CJiK'eii. t> 1 ... 11>» eiiUiil ill \ 84 wiinct'lo. :<57 , :io9 r,u-s or.. :iOO ,r ailiiii^- :wo, 3S2 lutiiij:... 'iO iiilinisr-ion 382 Us O.EX- ^^^ |E.l. cons- Division. 382 aseof. ..375 rs, 72. 75,81 ill caset*. ^1 81 ftl, Sohe- 7o ;.;;nt(5ti. ^^^ p.*i;i; Out!i (if .MIc;:. liy Mi'hiliers r.rProv. I.('!:iili Sclit'iliile). .V>1 ' li\ (i.iviriiur (Uoyal Iri^lriic- lioll«) • — of o(li( (• l.v Ciuvcrnor (Hoyul Iii- •"inii'lidii.-) '. uiiJ i)t .Mlt'>;iancf l>v Lii-iitt-iiant (inv ■ liy iiiciiilicrs nfl'rivy Council. Oailis to Witnesses, liiiirt-rial .\i-lcon- li rill itiL' Tail. .Vei Ollieer-^, (.'(111 till nance ofe.xi-tihir. ... — 'I'niiislir til CaiiaJa ofei-rtaiii... . — A|i]Hiiiitnieiil liy (iov. ol new. ... — Kxeciitiv(',a|i|ioiiile.| ll.rO.an.i Q. W'?, — • — 1)1' O. A: >'li^linii-ht mill 'reniiie of Ontario, .\|i|iiiiiiiinent of Ally. (Jen.. Sec. mill Itf^istrar... ." Coninii-sidner t.s witii respect to Section Isi . Act oli (leliniiifr privileiies. ie. to |)erl(irni Treaty ol>li<:ations. Patents of Invention and Discovery. — — — Lases _ Payment of Provincial dehts. ;{j7 Penitentiaries, Estalilisiinient of n»; Peniieniiary ol late I'rovince of Can. to remain property of O. and Q * J'etition of kiijlit — Cases. • I'etition ol U-lit Act Place of Senator, when vacant Popiilatidii of Canada in 1871 29 Po.-lai Service 115 Ca.ses 140 60 ly 91 6V by 70 69 36:{ 111 IS2 .•?7y 42 S3 Power, Federal E.xecntive — Provincial E.xecntive ... — Federal Le^^islative — i'roVKicial Le^rislative ... Powers, Federal Le«,'islative. Provincial Legislative. — DisTKiHiniox OF Legislative... 114 • — ixird Carnarvon on 116 • — Other uuthuritiea on IPJ 30 to 66 97 to 107 ♦it) to 97 107 to 114 114 to 2m; 206 to 329 I'AriK Powers of Parliament over matters within the Ci,assi-:s ok siii- JKCTS ('(i||i(wili'^. Pnlilic Delit anil i'roperl \ . . . . 115 Ii(i.'iiiation of 'I'mile and C'liii. 115 Itaisiii'.' ol Money hy any i le ol 'i'lixatioii 115 Piorrowiii;: of Money 115 Postal Service .' 1 15 Census and Sliiti^tics 115 Military and \iiviil Service. . . 115 Salaries ol Federal Ollicers. ... 1 15 DeHcoiis and IJiiovs 115 — — Liiihlhouses and Salde Island. 115 Xaviira lion and Slii|i|jmr j 15 Qmirantiiie and .Marine IIos. piials 115 Seacoa-t and Inliind I'isherii's. 115 Ferries lietween I'roviiu'c-. . . . 115 Cnrrency and ('ninairc 1 15 — — Hanking and liutorporalion of Hanks 115 I-siie of i'aper .Money 115 Suvin'.:s Hanks ] ;5 Weitrhts and Measures 115 Kills of Exidian;^c and Prom. Notes 115 Interest 115 Ix-j:al Tender 115 Hunkrnptcy and Insolvencv .. 115 Patents of Invention and Dis- coverv 115 Copyri-hts 115 Indians and Indians Lands .. . 115 X;ituralizati(in and Aliens.... 115 .^Iarria^'e and Divorce 115 Criminal Law and Procedure. 115 Estalilishmenl of Penitentiaries 1 16 Matters not assijjned to Prov . Leirislatnres 116 Powers of Prov. Legis!atiii('8 over matters within the Ci.asskh OK SilUKCTs liillowiii;;. .\meiidment of Constitution 20R Direct Ta.xation 206 *— — — — Cases... 207 Burrowing of Moiiev 206 *— — — — Cases... 226 E^tahlishment of Provin- cial Ollioes .. ..206 Mana:;emeiit and sale of Pulilic Lands 206 of Timber on Puhlic Lands 206 Estalilish'nt, itc, of Prisons 206 llo-pitals, Charities, &c. 206 Municipal Institutions 206 Shop, Saloon, Tavern, and other iicen-fes 206 *— — — — Cases... 227 Local Works (with cer- tain exceptions) 207 412 INDKX, [Mallerg not marked • n Powers of Prov. I,oj;isluturcs. Casoo. — Ini'orporutiun ropriated l>y Can. — and Civil Right.s in Provinces. . .. • _ _ ._ Cases.. 2;{!), — of Escheat • — — — Cases.... — of Out. and Que. (4th Schedule) Province of Upper Canada to puiilic be th( — Exemption from ta.xat ion of public rovince of U] Province of — of Lower Can. to be that of Q Provinces, yearly grant.s to — of N. S. & N. B. to have same limits — Exports and Imports between.. .. Provincial Legislative Powers, see Po\ver.s. * — Legislatures have no power to define privileges — Legislatures, Money Bills of Assent to Bilia of TM 207 2;n 207 2:iH 207 2:ti> 207 .•ilS 207 :»20 207 :v2:j 37 CO i;i) 70 71 .M ;fs2 20(i 207 :U4 t;<) 71 33 33!) IIT) ISi) 207 318 28 1"J3 i;»o 114 120 .■if)! 351 207 314 352 352 355 3G0 28 28 356 28 359 107 114 114 I'Acii: Prov. Legislatures. Recommendation of Money Hills of 114 Disallowance o\' Acts of. 114 Signilication of pleasure on Hills Reserv.'d of 114 ProviiKMal, Consol, l-'uml 3(10 — Companies, Incorporation of 207 _ _ — Cases... 237 — Great Seals 374 — Laws, Enforced by Punishment,. 207 « _ _ _- Cases 320 — Govern't", .\nnuilies by Can. to. 3a(i — Di'lits. Camilla liable for 354 , Provinces of ()., Q., X. S., & N. B. liable lo Can. for e.xeessof fixed amounts 354, 35,') Re adjustment of 354 Pavmenis of 3.)7 Interest of 350 Provincial Public Works, Transfer of, to Can 351 Properly, Rights of Can. in. . . .356 Property, Transfer of, to Can . 351 • — — " — — Cases... 351 — in Lands, Mines, Sec 352 Lands, Managem<'nlan Halifax .... 107 ofN. B.,tobe Fredericton.. 107 Provisions referring to the Queen exteiiil lo hc" Heirs and Successors 27 Public Debt and Property 115 • — _ _ Cases 120 Public Prov. Lands, Management andSa'.e of 206 — Works of Out., Commissioner of. 374 of Que., (Commissioner of 374 • Punishment, Enlbrcing Prov. Laws bv r 207 _ " — — Cases.... 320 QUALIFICATION, Reasons for and against a Pro|)erty 77 — of Voters for Legis. Assen>bly of O. ii' Electoral District of Algoma Ill — Legis. Councillors of Q. to make Declaration of. 361 — Senators to make Declaration of.. 361 — of Senators 76 Senate to determine as to. . 84 — of a Senator for (Juebec 76 — of a Legis. Councillor of Quebec. . 76 — of Voters and of those elected to the H. of Commons 91 to Prov. Assemblies 91 — of Voters in the District of Algoma 91 o« marHr«rf • rtftrto Ttzt(\f Act.\ INDKX. 413 I'ACB lutioi- ... IH !'..... U'l re on .... 114 ,»•;;... 'i07 .... :<74 mei.t.. '207 •H :v20 an. to. 3i>t} .... :554 J. s., & iin. for ,t« 351, 3'>5 ... S.U * '" ... 3.-)7 ....... 350 L'rftiist'er 3.51 II. in. .. 35*» to Can . 351 jasef".'. 3^)1 < .... 3.53 VSftleof. '206 Sale of jn 206 ■ect art to ,t 106 .. 107 ntv:;.. i"7 U.C . ... 107 itax .... 107 erii;ton.. 107 e Qui't'n icct'ssora 27 .... 115 se.s 120 ui},'enient ^^^ loner of. 374 rof 374 rov. Laws .... 207 Jasea . . • • 320 .sons for tv ''' ;t'"nil)ly of istrict of to make 361 iilion of.. 30 1 leasto.. 84 76 Quebec. 76 elected to , 91 8 91 fAlgonia 91 VKV.V. Qnurantino and Marino IIoipicalM. . . il5 Qi KitKC Kksoi.i TlOSrt OK iH'ii Mli Qnclx'c, AppMntnieiit kiK Kxeciitive OlIii'tTrt lor 373 — .Xpirt of Ali'v (SfiuTal of ;(73 Secntarv it Uf^inirar of. . . 37.3 • Trfa-urer of — ('oiniiii-'Hionfr of Crown Land-.... :n3 — t)r .\|;riuiilturf ii I'ultiic \york« 373 S.)|iiiior General of ;{73 — Executive Ufticern, to U- ve^teil with Power.'* ami FiHictioiiM of I lie laie I'rov. Kxt-culive OllicerH 374 *— I)iHa>lvuiitu;»e-< of renlriclion* as to qnaiilicatioiiH ot .Senators for 78 Queen, Ute Crown and Successors. . 27 • tjiii-enV Conn-el, Ai>|>oititiiietit of. ft"J Qnirn'f I'rivv Council lor Cana.\ILWAY, Intercolonial 380 Kiiilivuy.f connecting Provinces and the se lor tlie Advantage of Can.. 207 R<'-uiiju>liiient of Provincial I>ebtr<.. 354 Kelii'llion, Duty ol a Governor in ca-e.'j of fi5 Ki't'oinniendatKiii of Money Bdls and VotfH III 11. ol C..' ... 94 in Provincial Legifilatiires.. HI Records of the Province ol Cana-ia.. 37'J Reduction of niinilier of Senators.... bl Reliinnatory Pn^'ons in Provinces.. 206 Rt'gulalion ol TraiJe and Commerce. 115 •— — — — Ca:-en.... 121 — of Weights and Measures 115 *— — — — Ca-e.s... 170 — of Interest 115 Removal and A|)|>oiiitment ol i'riv^' Coniicillors 33 ol .liidgfs 330, 332 Repre., yearly, of Parliament 75 cl' l.'e.::i>latiires of O. and Q. . . 1 i;J Slii|i|iin'_' aiiil Navij^ation 115 Sigiolijiiliiiii liy Gov (!eii. of Queen's Disiil'luvvancei.f Aet^.^f I'arl. 9G (if Queen's I'lea-ure on Ke- serv.d Hills 96 — by LifUt. (lov. of Disallowance liv (iiiv. (Jen. ol Act-J of Leifisl. 114 ^olCiov. General's Pleasure on Reserved IJills 114 Solemnization of Morriaye 207 •— — — — Case .<.... Speaker of Senate entitliil to a vote. 84 til lie ain^oinled and removed liy (J. V. Gen 84 — of 11 . ciV C. , Klection of ifJ — in east^ uf ali-ence iA' '.•2 — vaeai.: y in nfiioe of 112 — vi'Ie ot^ in H. ol C '.).{ — of I..'^'is. As>emlilies of O. cy a';'.' mode uf 115 — _- _ _ Cases 207 — Prov. Legislatures to raise money by direct 206 — — — — Ca-es 1.39 — Exemption of Public Lund- Iroio :{iiO • — ol Salaries of Federal Utficers . . 140 • Ta.\es, Municipal 227 Telegraphs connecting Provinces — 207 — declared by Pari, to be tor the advantage of Canada 207 — — — — Ca.ses.... 237 • Temperance Act of li<78 bustaisied 190 9327 4 ^^^ PACE 'Tavern Licenses, see Licenses.... 2116 Teniler, Loizal 115 Tenure otUtHce of Senator 82 Third Schedule (VV/e I'rnp. of Can.) 120 Timberand Wond ot' Provinces 2()(> Title of H. N. A. Act, 1867.. 27 Township-- in Q., how constituted. . 379 Traliin.:toii, Fisheries under 145 — Obli;^at;oiis, Pari, to carry out.. . 363 • J'reaties, E.xtradition 364 • — — — — Cases .. 364 Treasiuvrs of Provinces 106, 374 UND)X, Declaration of (22iid May, H67) : 23 Wm-n to take ell'ect 28 L'niled, I'roviiices Federally 21 L'nil'ormilv of Laws in (>., N. S. «fe X. 15., Provided for 329 — — Ho'v ,liid;^es to be selected until 332 rniled Slates Constitution 391 Upper Canada, use of n;iiiie allowed. 28 Upper ILiiise constitiiteil, see .Senate. M • I'pperHou-e-:, nominated ik elected sO Usurv and Interest Laws 115 *— " — — — Cases ... 170 Undertakintrs and Works 207 V ACAXCIES, in H. of Com.. 91, 92 — m Senate 83 to be tilled by Gov. Gen.... 84 Que-tioiis as to, to be settled i'y Senate 84 — inotiiceol Speaker ot Senate In^w tilled 92 of Legis. Assemb of O. & Q. 113 — in Legislative Council of Q 109 Voices III Senate, a majority of. to decide 84 when etpiaiity of, the decision to be ne;iati ve 84 Voters liir Members of II. of C, Qiuiiilications of 91 Voting in Senate 84 — Ill Legislative Council olQ 109 Assemblies of O. and Q 113 w EIGHTS and Measures 115 * authorities 170 Wood and Timber of Provinces 206 Works and Undertakirfgs, Local .... 207 Yearly Sessions of Pari, of Canada. . 75 of Legislatures ofO. & Q.... 113 to Text qfAct.] PAfiE ises.... 2i)(> 115 H2 )/ Can.) 120 ;es 20() 27 itutcil.. :i7!> iitiuii ol'. Ho se-< 121 i;iO pcrtv to . ..".... 'MA Caiiivilii 3.')l .1-...,.. «t ''islifries 145 V out. . . 'M'i ' :^i;4: Cases . . :ii)4 ....IOC, ;{T't ZiidMav, '. 28 28 21 N. S. & 329 ;ed until 'X.Vl ;!'Jl iillowtil. 28 ' Senate. litJ k elected 80 115 'iiseti ... 170 207 :om.. 91, 92 83 .Gen.... 84 le setlk'il 84 iiaie liow 92 10. &Q. 113 Q lOi) ti' of, tu 84 decision 84 [. of C, 91 84 Q 109 Q 113 es 1)5 170 ces 206 lOcal.... 207 Canada.. 75 & Q.... 113