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Bull, of the City of Victoria, Province of British Columbia, sheweth — 1. That on the 18th day of February, A.D. 1884, the Legislature of the Province of British Columbia passed an Act intituled "An Act to Regulate the Chinese Population of British Columbia," a copy of which is hereunto annexed. The said Act hereinafter referred to as "The Chinese Regulation Act, 1884," was not disallowed by the Governor-General of Canada in Council, and came into force on the 18th February. 1885. 2. That on the 4th day of June, A.D. 1885, Edwin Johnson, Esquire, one of Her Majesty's Justices of the Peace for the said Province and Police Magistrate of the City of Victoria, on the information of your petitioner, a Chinese collector duly appointed under the said Act, con- victed one Wing Chong, alius Chu Lay, the above-named respondent, for that he, the said Wing Chong, alias Chu Lay, on the 21st day of May, 1886, at Victoria, in the said Province, being a Chinese within the meaning of the " Chinese Regulation Act, 1 884," was found not having in his possession a license issued under the provisions of the said Act, lawfully issued to him, and fined the said Wing Chong, alias Chu Lay, for his said offence the sum of twenty dollars. 8. That on the third day of July, A.I). 1885, at the instance of the .respondent, a writ of certiorari issued out of the Supreme Court of British Columbia, commanding the said Edwin Johnson to return into the said Supreme Court of British Columbia all and singular the informations, examinations and depositions taken by the said Edwiu Johnson in the said case against Wing Chong, alibis Chu Lay. (fkJ'-ir^toKiSjj. IP^ 4. That on the return of the said writ of certdmari, the Honourable Mr. Justice Crease, one of the Judges of the Supreme Court of British Columbia, quashed the conviction, on the grounds, inter (ilia, that the said " Chinese Regulation Act, 1884," was ultra vires the Legislative Assembly of the Province of British Columbia. The reasons given by His Lordship are more fully set out in his judgment, a transcript of which is hereunto annexed. 5. The order quashing the said conviction was not drawn up or served by the respondent until the 13th day of January, A. D. 1886. 6. Your petitioner is advised, and verily believes, that there is no appeal from the decision of the said the Hon. Mr. Justice Crease to the Supreme Court of British Columbia, fitting jis a Full Court. 7. That although the amount of the fine imposed by the conviction is small, the question in issue is of great public importance, involving, as it does, the power of the Provincial Legislature, under the " British North America Act 1867," to discriminate in the imposition of direct taxation for purposes of Provincial revenue and police. 8. The proceedings against the respondent, and this appeal, have been undertaken by your petitioner at the instance and by direction of the Government of the Province of British Columbia. !). That a transcript of all the proceedings in this matter is herewith transmitted to Your Majesty in Council. Your petitioner, therefore, most humbly pi-ays: That Your Majesty in Council will be pleased to order that your petitioner shall have special leave to appeal from the said order of the Hon. Mr. Justice Crease, of the 21st August, 1885, And that Your Majesty will be pleased to take his said appeal into Your Majesty's most gracious consideration, and to grant him Your Majesty's Order of Summons upon the said respondent to appear and put in his answer thereto, and that .service of the said Order of Summons upon the agent of the said respondent may be deemed good service, and that the said order of the Hon. Mr. Justice Crea.se of the 21. st August, 1885, may be reveraed, or that your petitioner may have such further and other relief as to your wisdom shall seem meet. And your petitioner will ever pray. Dated the 19th day of January, A. D. 1886. W. K. BULL. Alex. E. B. Davie, H. M. Attorney-Oeneral for British Coluvibia. » « t \ •f!?5s'!iwr- IN APPEAL 3» « i \ FROM THE SUPREME COURT OF BRITISH COLUMBIA. Between WILLIAM K. BULL, Appellant, AND WING CHONG, alias CHU LAY, Respondent. I, Henry Pering Pellew Crease, one of the Judges of the Supreme Court of British Columbia, herewith transmit all proceedings, exam- inations and depositions in the matter of a conviction of one Wing Chong, alias Chu Lay, under the "Chinese Regulation Act, 1884,'' by Edwin Johnson, Esq., Police Magistrate in and for the City of Victoria, B. C, — the writ of Certiorari — the order quashing the said conviction, and my judgment on making the order. Henry P. Pellew Crease, J. [L.S.] Affidavit of Service of Notice of Application for Writ of Certim'o/ri In the Supreme Court of British Columbia. In the matter of Wing Chong, alias Chu Lay, on application for writ of Certiorari. I, Chartres C. Pemberton of Victoria, clerk to Messrs. Drake^ Jackson & Helmcken, make oath and say: — That I did on the 5th of June, instant, personally serve Edwin Johnson with a copy of the_ notice hereto annexed, marked A, by delivering the same to him. . The said Edwin Johnson is the Police Magistrate mentioned in the said notice, and he was the only Magistrate who tried the complaint against Wing Chong, otherwise Chu Lay, and the only Magistrate present by and before whom the conviction was made. (Signed) C. C. Pemberton. Sworn before me at the City of Victoria, British Columbia, this 12th day of June, A.D. 1885. (Signed) D. M. Eberts, A Commissioner authorized to administer oaths, Supreme Court of British Columbia, 100804 !iiP<^^ mmm In the Supreme Court of British Columbia. [L. S.] On il ^ application of Wing Chong, otherwise Chu Lay, for a writ of Certiorari. Monday, 15th June, 1886. Upon application of Mr. Richards, Q. C, and upon reading the affidavit of C. C. Pemberton, with the exhibit thereto filed this day, it is ordered that Monday, the 22nd day of June, be given to Edwin Johnson, Esq., Police Magistrate and Justice of the Peace in and for the City of Victoria, in the Province of B. C, to shew cause why a writ of Certiorari should not issue to remove into this Court a certain record of conviction made under the hand and seal of the said Edwin Johnson, as such Police Magistrate as aforesaid, and dated the 4th day of June, 1885, whereby Wing Chong, otherwise Chu Lay, was con- victed of not having in his possession a licence under the " Chinese Regulation Act, 1884," and was fined $20, upon the grounds, amongst others : — 1. That the Act under which the said conviction purports to have been made is ultra vires the local legislature as being an interference with the rights of Aliens. 2. That it is an interference with trade and commerce. 3. An infraction of the existing treaties between the Imperial Government and China. 4. That the taxation imposed by the said Act is unconstitutional aa being unequal. And why, in case the said rule is made absolute, the said conviction should not be quashed without the issuing of the writ. By the Court. (Signed) James C. Prevost, R., per Harvey Combe, D. R. S. C. Affidavit of Service for Rule Nisi for Writ. In the Supreme Court of British Columbia. On the application of Wing Chong, otherwise Chu Lay, for a writ of Certiorari. I, Chartres C. Pemberton of Victoria, British Columbia, clerk to Messrs. Drake, Jackson & Helmcken, make oath and say: — That I did on Monday, the 15th day of June, 'nstant, personally serve Edwin Johnson, Esq., Police Magistrate for the City of Victoria, with a true copy of the paper writing hereunto annexed, marked A, t I mm mmmm m 8 by delivering said copy to and leaving the same with the said Edwin Johnson at the City of Victoria aforesaid. (Signed) C. C. Pemberton. Sworn at Victoria this 16th day of June, A.D. 1886, before me. (Signed) D. M. Eberts, A Commissioner for taking affidavits in Supi-eme Court of British Columbia. Enter within rule for argument. Dated June 20th, 1886. (Signed) Drake, Jackson & Helmcken, Solicitors for WiNO CHONa. D 1 Return to Writ of Certiorari, The execution of this Writ appears in a certain Schedule hereunto annexed. The answer of Edwin Johnson, Esquire, the Justice and Police Magistrate within mentioned. The Schedule above referred to. 1. Information. 2. Deposition of Witness. 3. Conviction. 4. Reasons for conviction. 6. Notice of application for Writ. 6. Writ. 7. Recognizance. (Signed) Edwin Johnson, P.M. Please enter within writ for argument before the Honourable Mr. Justice Crease for Friday, 10th day of July instant, at 11 A.M. Dated 7th July, 1886. (Signed) Drake, Jackson & Helmcken, Solicitors for Wing Chono. I. Information CANADA, City of Victoria, Province of British Columbia. The Information of William K. Bull, of the City of Victoria, in the Province aforesaid, taken before me the undersigned, one of Her 1 Majesty's Justices of the Peace in and for the said Province, at Victoria, in the said Province, this 21st day of May, in the year of Our Lord one thousand eight hundred and eighty-five, who saith that Wing Chong, alias Chu Lay, is a Chinese within tlie meaning of the " Chinese Regulation Act, 1884," and that the said Wing Chong, aliaa Chu Lay, is now within the Province, and found therein, to wit, at the City of Victoria, not having in his possession a licence issued under the provisions of the said Act lawfully issued to him the said Wing Chong, alias Chu Lay, contrary to the form of Statute in such case made and provided (Signed) W. K. Bull. Takbn before me the day and year, and at the place above mentioned. (Signed) Edwin Johnson, P.M. M II. Deposition of Witness. CANADA, City of Victoria, Province of British Columbia. } The examination of William K. Bull, of Victoria, in the Province aforesaid, taken on this 1st day of June, in the year of Our Lord one thoi'oand eight hundred and eighty -five, at Victoria, in the Province aforesaid, before the undersigned, one of Her Majesty's Justices of the Peace for the said Province, in the pnjsence and hearing of Wing Chong, alias Chu Lay, who is this day charged before me, for that he, the said Wing Chong, alias Chu Lay, is a Chinese within the meaning of the " Chinese Regulation Act, 1884," and that the said Wing Chong, alia,8 Chu Lay, is now within the Province and found therein, to wit, at the City of Victoria, not having in his possession a licence issued under the provisions of the said Act lawfully issued to him the said Wing Chong, alias Chu Lay. This deponent, William K. Bull, upon his oath deposeth and saith as follows: — I have heard my information read and it is trae. I am Collector imder the " Chinese Regulation Act, 1884." I know the defendant. He is a Chinese over the age of 14 years. I applied to him on the 20th May for payment of $10 for a licence under the Act He refused to pay. He had no licence under the Act ; he refused to take one out. To Mr. Helmcken — Wing Chong is a general merchant. I have known the defendant about ten years. He is doing a large business. I believe there are about 2,000 Chinese in this City. (Signed) W. K. Bull. (Signed) J. D. Robinson, a P.O. ni ri i ■■} III. CONVICTIc City of Victoria, Provinck of British Columbia, To Wit: Be it remembered that on the 4th day of June, in the year of Our Lord one thousand eight hundred and eighty-five, at Victoria, in the said Province of British Columbia, Wing Chong, alias Chu Lay, is convicted before the undersigned, Edwin Johnson, Police Magistrate of the said city, and one of Her Majesty's Justices of the Peace in and for the said Province, for that he the said Wing Chong, alias Chu Lay, on the 21st day of May, in the year of Our Lord one thousand eight hundred and eighty-five, at Victoria, in the Province aforesaid, being a Chinese within the meaning of the " Chinese Kegulation Act, 1884," was found not having in his possession a licence issued under the pro- visions of the said Act lawfully issued to him, contrary to the Statute in such case made and provided; and I adjudge the said Wing Chong, alias Chu Lay, for his said offence to forfeit and pay the sum of twenty dollars to be paid and applied, and in default of immediate payment recovered, according to law. f '— *^ 1 Given under my hand and seal the day and year first j L. S. >■ above mentioned, at Victoria, in the Province of "-v— ' ^ British Columbia aforesaid. (Signed) Edwin Johnson, P.M. Ill IV. Reasons for Conviction. Tai Chong Yuen and Wing Chong, each chai^edlhal being a Chinese he was found in the Province not having in his possession a license under the "Chinese Regulation Act, 1884." In this case I have had the great advantage of hearing the Attorney-General in support of the charge and Mr. Richards, Q.C., for the defence. The charge is proved, and indeed the facts alleged in it are not denied; but Mr. Richards claims that the Act is unconstitutional and void. So far as I know a defence of this character was never before raised in a Police Court. The Act was passed more than a year ago, and received the assent of the Lieutenant-Governor, acting under the advice of his responsible Ministers, in Her Majesty's name. It has not been disallowed, and the time for disallowing it has expired. It would obviously be absurd for a Police Magistrate, on his own responsibility, to declare this or any other Act duly passed to be unconstitutional and refuse to act upon it; and I feel sure Mr. Richards recognizes this, although he was kind enough, in the course of his argument, to give me credit for perhaps more legal knowledge than I can fairly claim; but he says I am bound by the judgment of Mr. Justice Gray in 1878 declaring a somewhat similar Act void. {Sing v. Maguire, (S.C. B. C, September, tC mmmmm 1878). There is no Judge in Brit'jh Columbia whose decisions are entitled to more weight than Mr. justice Gray's; but, in the first place, his judgment was not upon the Act now in question, nor upon one strictly identical with it; and in the next place, since 1878, the decisions of still higher Courts than the Supreme Court of British Columbia have, as the Attorney-General has pointed out, thrown new light on the construction of the "British North America Act," and it is possible that after reading those decisions, and particularly the case of Hodge V. Reg. (9 App. Ca. 117), the learned Judge might now come to a different conclusion. It is my duty to administer the law as I find it, not as as I may think it ought to be, leaving the grave questions that have been raised by Mr. Richards to be disposed of by a higher Court. I therefore convict each of the defendants of the offence charged, and fine him $20, to be recovered, paid, and applied according to law. (Signed) Edwin Johnson, P.M. City Police Court, 4th Juue, 1885. V. Notice of Application for Writ of Certiorari. In the Supreme Court of Bi 'tiah Coluvibia. In the matter of the " Chinese Regu.ation Act, 1884," and in the matter of Wing Chong, alias Chu Lay. To Edwin Johnson, Esq., one of Her Majesty's Justices of the Peace and Police Magistrate in and for the City of Victoria and Province of British Columbia : — Whereas you did on the fourth day of June, in the year of Our Lord one thousand eight hundred and eighty-five, take the examina- tion of William K. Bull, and upon such examination as aforesaid did convict Wing Chong, alias Chu Lay, and sentence him to pay a fine of 820. And whereas it appears that the Act, or part of the Act, under which the said conviction was made is unconstitutional and beyond the powers of the Provincial Assembly to enact, and moreover that the said conviction was irregular and illegal ; wherefore the said Wing Chong, alias Chu Lay, being resolved to seek a remedy for the injury which he has received and sustained by means of the said conviction, I do hereby, on behalf of the said Wing Chong, according to the form of Statute in that case made and provided, give you notice that the Supreme Court, or a Judge thereof, will in six days from the time of your being served with this notice, or as soon thereafter as counsel can be heard, be moved on behalf of the said Wing Chong for a writ of Certiorari to issue out of the said Court and be directed to Edwin Johnson, Esq., for the removal of the said record into the said Supreme Court. Dated 5th day of June, A.D. 1885. (Signed) Drake, Jackson & Helmcken, Solicitors for Wing Chono. VI. Writ. Victoria, by tho grace of God, of the Unitod Kingilom of Great Britain and Ireland, Queen, Dtsfendor of the Faith, to Edwin Johnson, Esfjuire, one of Our Justit'e.s assigned to keep tlie Peace in and for tlie City of Victoria, and the Police Magistrate thereof, and also to hear and determine divers felonies, trespasses, and other nusdeinconors committed within Our said City, GuKETING, — We being willing, for certain reasons, that all and singuh : '■ ifor- mations, examinations, and depositi(Jiis taken by and remaining ith you in a certain cose charged against Wing Chong, aliaa Chu I.ny, for being without a licence under the provisions of the " Chi • -o R< ju- lation Act, 1884," and for which you have convicted the said W^ing Chong, alluH Cl.u uay, in t)ie sum of 820 as it is said, be sent by you before '^s, do command you, that you .send Us immediately aiUn the receipt of this Our Writ, all and singular the sa'd informations, examinations, and depositions, with all things touching the same, as fully and perfectly as they have been taken before you, and now remaining in your custody, by whatsoever name the said Wing Chong is called in the same, together with this Writ, that We may further cause to be done therein what of right and according to the law and custom of England We shall see fit to be done. At Victoria the 3rd day of July, in the forty-ninth year of Our Reign. By the Court. (Signed) James C. Prevost, Witness. [L. S.] VII. Recognizance. Be it remembered that on the day of , in the year of Our Lord one thousand eight hundred and eighty-five. Wing Chong, of Victoria, British Columbia, and Tai Chong, of Victoria, aforesaid, personally came before me, the undersigned, one of Her Majesty's Justices of the Peace for the said City of Victoria, and severally acknowledged themselves to owe to our Lady he Queen the several sums following, that is to say: the said Wing Chong the sum of S250 and the said Tai Chong the sum of S250, of good and lawful money of Canada, to be made and levied of their goods and chattels, lands and tenements respectively, to the use of our said Lady tho Queen, her heirs and successors, if he the said Wing Chong shall fail in the condition indorsed. Taken and acknowledged the day and year first above mentioned, at Vr'choria before me, Victoria, July 2nd, 1885. (Signed) A. J. Langley, J.P. (Signed) Tax Chono, (Signed) "WiNG Chono. - '-"" """■"irwvTi ■ The condition of the within written recognizance is such that if he the said Wing Chong shall prosecute with eflfect, without any wilful or affected delay, at his own proper costs and charges, a writ of Certiorari, issued out of the Supreme Court of our said Lady the Queen, at Victoria, British Columbia, to remove into the said Court all and singular records of conviction of whatever trespasses and contempts against the form of the Statute of the forty-seventh year of Her Majesty, intituled the "Chinese Regulation Act, 1884," made by Edwin Johnson, one of the keepers of the Peace and Justices in and for the said Province of British Columbia, and shall pay Edwin Johnson, within one month next after the said record of conviction shall be confirmed in the said Court, all his full costs and charges, to be taxed according to the course of the said Court, then the said recognizance to be void, or else to stand in full force and virtue. Order Quashing Conmction. In the Supreme Court of British Columbia. In the matter of Wing Chong, convicted at the City of Victoria, British Columbia, on the 4th day of June, 18b5, by and before Edwin Johnson, Esquire, one of Her Majesty's Justices of the Peace in and for the Province aforesaid, and Police Magistrate in and for the said City of Victoria, for not having in his possession a licence issued imder the "Chinese Regulation Act, 1884." Friday, the 21st day of August, A. D. 1885. Upon hearing on the 14th and 15th days of July, 1885, the Attorney- General for the Province of British Columbia, of Counsel for the said Edwin Johnson, Esquire, and upon hearing Mr. Drake, Q. C, Mr. Richards, Q. C, and Mr. Eberts, as of Counsel for the above named Wing Chong, and upon reading the rule N'isi made herein on the 15th day of June, 1885, this Co irt did order that the said matter should stand for judgment. And this matter coming on this day for judgment in presence of Counsel for all parties, this Court doth order that the conviction of the said Wing Chong, on the 4th day of June, 188:, by and before the said Edwin Johnson, Esquire, one of Her Majesty's Justices of the Peace in and for the Province of British Columbia, and Police Magis- trate for the said City of Victoria, at Victoria, for the alleged offence of not having in his possession a licence issued under the "Chinese Regulation Act, 1884," be quashed. And this Court doth further order that the said Edwin Johnson do forthwith pay to the said Wing Chong, or his solicitor, the sum of e $20, paid by the said Wing Chong under the said conviction, togeither with the costs of and incidental to this application to be taxed. Henry P. Pellew Crease, J. Entered and issued this 13th day of January, A. D., 1886. James C. Prevost, Registrar. [L. S.] Judgment of Mr. Justice Crease. 21st August, 1885 — Crease, J.:— In order to deal satisfactorily with the questions raised by this appeal, it is necessary to see what is the scope and purport of the Act. It is called "An Act to regulate the Chinese population of British Columbia." It starts with a recital, in itself a petitio principii — not apparently the result of any public enquiry — which charges them with being not law-abiding, dissimilar in habits and occupation to the whites — useless in emergencies, habitual desecrators of grave-yards, unsuiced to our laws, and of habits subversive of the community. From that premises concluding that special laws are required for their government, it proceeds to enact : — 1. The title. 2. Defines Chinese to mean " any native of the Chinese empire or " its dependencies not bom of British parents, and shall include any " person of the Chinese race." Section 3 — with which we are immediately concerned — says : — " Fx-om and after the passage of this Act there shall be payable and " paid by every Chinese in British Columbia, above the age of fourteen " years, unto and for the use of Her Majesty, her heirs and successors, " the sum of ten dollars, and thereafter on the 1st day of June in each " and every yoav there shall be likewise payable and paid by such " Chinese person a further sum of ten dollars." Sec. 4 provide- for the appointment and payment of special collec- tors, " to be called Chinese collectors, to collect and receive such " payments from Chinese; and such collector or collectors, immediately " upon such payment, shall issue and deliver to the person paying the " same a license in the form contained in the schedule hereto." By Sec. 5 "Any Chinese who shall bo found within the Province not " having in his possession a license isr^ued under the provisions of this " Act, lawfully issued to him, shall, on conviction thereof, forfeit and " pay a sum not exceeding forty dollars." By Sec. 6 "Any collector or Government servant wilfi'lly disobeying " any of the provisions of this Act shall forfeit and pay a sum not " exceeding one hundred dollars." By Sec. 7 "Every collector shall collect the tax from each Chinese, " and shall as soon afterwards aa may be pay over the amount to the \ Is .C fll f I to 10 " oflBcer in charge of the Treasury, or to such other person as the " Lieutenant-Governor in Council may from time to time direct." By Sec. 8 " Every employer of Chinese shall furnish to the collector, " when requested by him so to do, from time to time, a list of all " Chinese in his employ, or indirectly employed by him ; but no such " statement shall bind the collector, nor shall excuse him from making " due enquiry to ascertain its correctness." Section 9. " In case any employer of Chinese fails to deliver to the " collector the list mentioned in the preceding section, when required " so to do, or knowingly states anything falsely therein, such " employer shall, on complaint of the collector and upon conviction " before a Justice of the Peace having jurisdiction within the " district wherein such employer carries on his business, forfeit " and pay a fine not exceeding one hundred dollars for every Chinese " in his employ, to be recovei'ed by distress of the goods and chattels " of such employer failing to pay the same, or in lieu thereof slmll be " liable to imprisonment for a period not less than one month and not " exceeding two calendar months." Section 10 gives the collector power to " levy the amount of the " license from any Chinese not being in lawful possession of a license " with costs, by distress of his goods and chattels, or of any goods and " chattels which may be in the possession of the delinquent, or which " may be upon or in any premises (whether the goods of the delin- " quent or not) for the time being in the possession or occupation of " such delinquent Chinese," and declares that " for the purposes of this " section premises shall be deemed to be in the possession or occupa- " tion of any Chinese when it can be shown to the satisfaction of the " tribunal having cognizance of the matter (a) that such Chinese " habitually frequents such premises with the assent of the owner " (6) that he is the owner or one of the owners of the premises, or has " control, either alone or jointly, with another or others, of such prem- " ises or some part thereof ; (c) that he has passed the night or slept '' upon such premises at any time within a week of the levy, it shall " be sufficient authority for the collector to levy as aforesaid on the " non-production of the license. Proof of the lawful possession of " such receipt shall lie on the person whose goods are restrained." By section 11 every license must be demanded by the employer and retained during the Chinaman's service. By section 12 tax collectors are not to allow Chinese to pass unless a license is produced. Section 13 imposes a penalty of $50 on any person guilty of employing any Chineso not having a license. Sec. 14. P\>e for frae miner's certificate to a Chinese to be SI 5, instead of the white man's $5. Sec. 15. Penalty not exceeding $80 for every Chinaman mining without a license. I 11 Section 16 amends the License Orduiance of 1867, whereby the pursuit of various callings is sanctioned by the ominous words, " but no license shall be issued to any Chinese." Sections 17 and 18 prevent the exhumation of dead bodies without permission, and prohibit the use of opium except for medical purposes. Section 19 provides for the recovery of any pecuniary penalty thereunder in a summaiy manner before a J. P., and in default of immediate payment sanctions a distress, and failing that, imprison- jient for not exceeding three months. Section 20 (amended by Act of 1885) declares that "convictions are not to be quashed for want of form." Section 21. "Any Chinese who shall lend his license or free miner's " certificate to another Chinese, and any Chinese who shall utter or "pass ofi" upon any collector or other person any license or free " miner's certificate other than his own, with intent himself to avoid " payment of the license fee payable under this Act (and the onus of "proving that such was not his intent shall rest upon the person " charged), shall forfeit and pay a penalty of not less than twenty " dollars nor more than one hundred dollars." Section 22 enacts that the tribunal applied to may decide " on its own view and judgment" whether any person is a Chinese or 14 years old. Sections 23, 24 and 25 contain sanitary provisions affecting build- ings let to Chinese. Section 26 provides a means whereby persons imprisoned for an infraction of the Act may be put to hard labour by an Order in Coun- cil, and the same executive authority is empowered to make rules and regulations for carrying out the Act. Section 27 places in the hand of the local executive the construction from time to time of further rules and regulations to enforce the Act, and a fitting summary to such a premiss in section 28 reverses all the old law of England and one of the most cherished and priceless safe- guards of the freedom from oppi'ession won for us by our forefathers — that no one shall be deemed guilty until he has been proved so — throws on the defendant, white or yellow, the burden of proving that he is exempt from the operation of its arbitrary provisions — and in a tax Act which is in restraint of personal liberty, and opposed to the common law rights of the citizen — for if appiJcable to aliens it is a fortiori to the temporary inhabitants of the Province — abi'ogates the hitherto invariable rule in criminal matters and makes it unnecessary in any information, summons or conviction to " state or negative any " exception in or exemption under this Act, or in conteinplation of " law ! " Taught by experience of former efforts in the same direc- tion, section 29 es one year's notice of the coming into operation of the Act — a time which has now expired. And section 30 terms it merely " The Chinese Regulation Act, 1884." 12 The only schedule is the form of license, which runs as follows : "No. ' Received of from the "'Chinese Regulation Act, 1884.' District of "Date 18 . , the stun of dollars, being the yearly license, day of to the day i , 18 . "Collector." The question now raised on the construction of this Act affects not only British Columbia, but, as she occupies the only Pacific seaboard of the Dominion, indirectly more or less the very many other Prov- inces under the flag of confederation. Taking for convenience the five pointf of objection to the conviction in the c^der in which the]' are made — 1. That it interfered with the Dominion powers under the B. N. A. Act over aliens and naturalization. 2. Trade and commerce. H. Treaty obligations. 4. That the tax was unequal. 5. That it was indirect taxation and therefore illegal, and should be quashed. On the first point, I would observe that it is now well settled law that British Columbia, as a part of the Dominion, possesses all, but possesses only, the powers which are strictly defined by the B. N. A. Act of 1 867, which is, indeed, the constitution of Canada. Neither she nor any other of the Provinces possess any other powers of legislation than are conferred by that Act. If British Columbia, or any other Province, in its legislation, goes beyond that Act and in excess of its provisions, that moment, and to the extent of such transgression, it ceases to be law. Therefore, in dealing with this question, our constitutional Act must be kept in view throughout, as the measure by which we must continually gauge the legality or illegality of the provisions of the local statute under consideration. The Act of Federation was passed in order to be an irrefragable, permanent standard by which to presei"ve and i-egiilate all the relative rights of the Provinces, as among themselves and as regards the Dominion. The exclusive powers of that Act given to the Dominion over par- ticular subjects are contained in tlie 91st section. The exclusive powers of the Province are particularized in section 92. It is natural that in the working out of such a constitution in a new and gi'owing country, questions should be continiially cropping up, and call upon the Courts to define gradually and with greater exactness, as time progresses and population expands, the relative powers given by the Act to the Dominion and Provinces respectively. Sub-section 2 of section 91 gives to the Dominion Parliament exclusively the regulation of "trade and commeree," and by sub- 18 section 25 that of " naturalization and aliens," and everything relating to those subjects as aflFecting the whole Dominion is within the Dominion powers, and no local Legislature can make any statute interfering with either of those subjects. If it does, so far as such interference extends it is illegal and void, and when brought before t\'ist it may be exercised upon all foreigners residing in the " State, and may be so exercised as to bar the door of foreign com- "merce as effectually as the Government could do by issuing its " mandate and closing it* ports." And again " to determine whether there is a conflict or not," *. e., of jurisdictions, "the power must be considered with reference to its " consequences, for its effect when carried out is the only criterion by " which a judgment can be formed." In another place he says — " It would be an empty sound to say that " the several States cannot pass any law to prevent foreigners from " coming here if they may pass laws which will compel such foreigners " to depart as soon as they arrive." And again, " A tax imposed by the law on these persons for the " mere right to reside here, is an appropriate and effective means to " discourage the immigi-ation of the Chinese into the State." During the argument on the case before me, the Attorney-General claimed that this was direct taxation, and a direct tax within the Province, to raise revenue for Provincial purposes, and, therefore, intra virea ; but the question is not one of name but of fact. Does it interfere with trade or commerce? Can it be legally imposed on foreigners as foreigners, for even a legal tax in other respects becomes illegal when it goes beyond its proper limits, and interferes with powers exclusively given to the Dominion for 1,1 le benefit of all? In another California case, In re Tiburcio Parrott, it is laid down that if the apparent object of a statute is under a pretense of the exercise of constitutional powers to drive Chinese away, the end sought to be obtained being unlawful, the statute is void. In Russell v. Reg. it is decided that the true nature and character of legislation must be determined in order to aseei-tain its legality. 17 ■■ In Citizens Insurance Co. v. Parsons, we have to look at the legislation for the same purpose. If the legislation here be to drive people from the country, have the local legislature the power? Legislation as to aliens is reserved to the Dominion. And as to trade and commerce, if the Chinese be driven out an annual loss to the revenue, it appears by the tables in the Chinese Commission Report, of SI 10,000 will take place; and more than $1,500,000 of property and business be lost to us, besides an injury to trade to an incalculable extent. The amount of business transacted by Chinamen in British Columbia, as revealed by the tables in that Chinese Report, is something which a casual observer could have no idea of. The treaties between Great Britain and China, which bind us, have been quoted. The treaty of 25th August, 1842, Hertslet, Vol. 6, ratified 26th June, 1843, p. 221, and Lord Elgin's treaty of October, 1860, authenticated copies of which were produced in Court, secure to Chinese coming into British dominions the same " full security for " persons and property as subjects of Her Majesty." Vattel, cap. 8, referring to our obligations to foreigners, observes: — " As soon as the lord of the territory admits strangers into it he engages " to protect them as his own subjects, and to afford them perfect security " as far as depends on him." Reg. V. Severn and Reg. v. Russell are important authorities in guiding our enquiry as to the nature and effect of local legislation in determining whether and how far the Act under review exceeds the limits within which the local legislature is supreme. And as to the equality of taxation, besides Cooley, who has been quoted freely on both sides, in Kent's Commentaries (8th Ed.), 2iid Vol., 388, it is in- sisted — " That every person is entitled to be protected in the enjoyment " of his property, not only from invasions of it by individuals, but " from all unequal and undue assessments on the part of the Govem- " ment. It is not sufficient that no tax or imposition can be imposed " upon the citizens, but by their representatives in the legislature the " citizens are entitled to require that the legislature itself shall cause " all public taxation to be fair and equal in proportion to the value of "'property'" (and that is what Cooley means by apportionment of taxation), " so that no class of individuals, and no species of property " shall be unduly assessed." The treaties I have quoted betweer Great Britain and China, binding on the Dominion and on us in British Columbia, secure to the Chinese, just as the treaties between Great Britain and other foreign countries secure to other foreigners, the same rights in regard to the equality of taxation which I have described as being enjoyed by citizens of this country. These treaties have the force of international law, and are construed most strongly against the party for whose benefit they are introduced. 18 In the case of the Chinese treaties, they were forced by us at the point of the bayonet on China, to obtain a right for us to enter Cliina, and in return for a similar permission to us, full permission was given for the Chinese to ti'ade and reside in British dominions everywhere. In the treaties of 1858 and 1860, made at the solicitation of Great Britain, the Emperor of China was induced to give permission to his subjects to go and trade and reside " in British Colonies," and to enter into "engagements with British subjects for that purpose." These obligations are binding here and in other parts of the Dominion, under section 132 of the British North America Act, and no Province, or the Dominion itself, can lawfully pass laws interfering with that right without a previous revision of the treaties by the high contracting parties to them for that pui-pose. Treaties with foreign nations are above all ordinary municipal law, for obvious international reasons, for without such a provision there can be no permanent security, which is the life of all commercial intercourse. The same provisions that apply to Chinese may be made to apply also to Americans, Frenchmen, Germans, or any other foreigners. Such treaties are the especial care of the Dominion, and where local legislation clashes with that especial province of the Dominion, the legislation of the Province must give way, as laid down in Leprohon v. the City of Ottawa, 40. Q. B., Ont., 478; Reg. v. Chandler, Hannay's New Brunswick Reports, 548; Dmv V. Black, L. R. 6 P. C. 272; L' Union St. Jaquea v. Belisle, L. R. 6 P. C. 31, and numerous other Canadian authorities, besides the British North America Act itself. Now applying the principles and tests I have described to the Act before us, what do we find ? The Act is found associated with another Act now disallowed, the express object of which is to prevent the Chinese altogether from coming to this country, and the principle " noscitur a mciis" is kept up by the preamble of the present Act, which descri1)es the Cliineso in terms which, I ventiu'c to think, have nt'ver before in any other country found a place in an Act of Parliament. In the derinition of the persons affected by the Act no distinction is made of ambassadors, merchants, consuls, artists, pi-ofessoi-s or travel- lers, or sex, whether under disability or not, or at such a distance from a collector as to make it difficult or impossible to obtain a license. Every person of Chinese origin, whether naturalized in Hong Kong or America, or any other State with which we are at amity, so long as they are of Chinese origin, 14 years of age, — every one without distinction — must take out a license. For the purpose of argument I have treated the license fee as a tax; but it is in fact a license — a license to remain in British Columbia unmolested for a year. Wlien the legislatui-c Avanted to create a tax, they knew what words to use for the puj-post;, for in the si-ster Act passed on the same day, which was disallowed, they called the impost there enacted a " tax," not a license. However difficult or impossible for any Chinese to find a district collector, if such Chinese 14 :•( ■ JiiiiJiiJJiiiiiiiiippiiipiiiiPiiiiii I .uni|i 19 is "found without a license ho is liable to a fine of S40.'" At every turn he is confronted with an exceptional duty, and an exceptional penalty, and the loss of his goods and chattels, and of personal liberty. j§ YW It is impossible but that such an imposition so enforced, in addition A ^^ ^^ ^^^ the general taxes to Avhich he is suliject, should make this country too hot for him to live in ; and just in proportion as he is so persecuted out of the country, in that degree does this enactment interfere with trade and commerce and that control over aliens exclusively given to the Dominion. And not only is he thus attacked, but unheard of provisions are introduced. Every employe of Chinese labour, whether English, American, or what not, is made liable to severe and incessant liability of a penal kind, for what ? Some act, a default of his own ? No ; an act or default of a stranger, a man whose language he knows not, and for every infraction of the Act by the 1 Chinese under his employ. The palpable object of such a provision, or set of provisions, is to render the employment of Chinese so distasteful and annoying to the employei- that he must cease to employ them. Now, to pass a law providing that employment shall not be given to a special class of men, except it be productive of so nmch danger, annoyance, and loss to the employer, is just another way of saying that no intercourse shall be had with that class. With penalties and prosecutions always before you, far in excess of any advantage to be derived from that intercourse or trade, what is that but equivalent to saying that such intercourse or trade or labour must cease altogether ? What is that but interfering with aliens, trade, and commerce ? If a man employ a Chinaman who should happen to be delinquent in his tax, and he happens to occupy a cottage or room of his employer, with his master's goods in it, imder section 10 they are liable to seizure and side. In every prosecution under the Act the legal pre- sumption of innocence until conviction is reversed; in every case the o)^t^'^■ / people, or French, Italians, Americfins, or Gennans, under equally the same law. That certainly is interfering with aliens. The proposition that it is a Provincial tax for revenue purposes, supposing it to be so intended under the provisions of the Act, is so manifestly calculated to defeat that object, by diminishing the numbers of the mendiers of the persons to be affected by it, that it is difficult to regard it in that light, or in any other light than an indi- O i ■rflfmmim'mf 20 rect mode of getting rid of persons whom it affects out of the country. Tlie vvliole Act teems with special provisions which affect not only Chinese, but their employers, with obligations and lialiilities as to the conduct of the Chinese in their employ, that no reasonable num would encounter, and run the risk of the penal cijnsequences which the Act hangs over him. For instance, by section in any pecuniary penalty imposed may be suniiiuirily recovered (and applies to employtMs), and in default of immediate payment the same uuiy be recovj-ed by distress of the goods and chattels of the offender, and in ilefault of sutHcient distress by a liability to imprisonment for three calendar months, and the employers would necessarily bo white men. In fact, the Act so bristles with these arbitrary, exceptional and penal conse(juences, that it is invidious to single out particular (tnes for comment. It is eiKJUgh to add that " any person," no matto' whether white or Chinese, imprisoned in respect of any infraction of the provisions of the Act, may be at the will of the executive, subjected even to hard labour. The Act is so full of provisions that interfere directly with aliens, with trade, ami with commerce, that 1 have no hesitation in pronoun- cing all such provisions, and among them those under which the appellant in this case has been convicted, to be ultra vires the local legislature, and conseciuently illegal and void. So far, I have dealt with the Act on its own meiita; but if wo consider it in juxtaposition to the Dominion Act recently pas.sed restricting the Chinese throughout all Canada, its illegality becomes transparent; for in passing that Act against the Chinese the Dominion has spoken by the highest authority which it possesses — its own Par- liament. By the Constitutional Act the subject of aliens, we have seen, is specially reserved to the Dominion, and it is now an a.xiom, in the interpretation of that Act, that when that authority deals with a subject expressly iiiehidod in its juriscliction by the !)Jst section, it has possession of that suljcct exclusively, and the I'rovinee has to give way. It i.- a great assumption of power on the part of a Province to pass laws, the effect of which must be piactically to expel a j)ar- ticulur eluss of aliens from that Province, to say in effect that it will liy its legislation inipeile or prevent that class from l>eing employed ui ari(jtlier Province — say the N(jrth-west Tenitoiy or Manitoba — where railway works may lie languishing for want of that very class of labourers, British Columbia lieing the only sea-lioard of Canada on the Pacitie through which (in face of the ivstrietive laws of the United States) that class of labourers can enter and pass tbi-ough; that is, in fact, legislating on all inter-provincial immigration ; in other words, such legislation is ultra, vires, and so I pronounce it; ai\d adjudge accordingly, and (luash the conviction, with costs. »^«j*g^Jj