Ai .^V^. iMAGE EVALUATION TEST TARGET (MT-3) ^nr%^ 1.0 I.I 11.25 Mi. lis )|2.2 ? «s 110 — A" .8 LI ■1.6 P^ ^' 03 /a ^ 7/A ^' Photographic Sciences Corporation L1>' iV m^ o % .V ^ cr <^* 23 WES'' MAIN STREET WEk> dtR.N.Y. 14580 (716) 873-4503 •^%^ <» .^ £Pn^ ^ CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical MJcroreproductions / Institut canaHiun de microreproductions historiques 1981 Technical and Bibliographic Notes/Notes techniques et bibliographiques The Institute has attempted to obtain the best original copy available for filming. Features of this copy which may be bibliographically unique, which may alter any of the images in the reproduction, or which may significantly change the usual method of filming, are checked below. D □ D □ Coloured covers/ Couverture de couleur □ Covers damaged/ Couverture endommagee □ Covers restored and/or laminated/ Couverture restaur^e et/ou pelliculde □ Cover title missing/ Le titre d& couverture manque □ Coloured maps/ Cartes g^ogiaphiques en couleur Coloured ink (i.e. other than blue or black)/ ere de couleur (i.e. autre que bleue ou noire) □ Coloured plates and/or illustrations/ Planches et/ou illustrations en couleur Bound with other material/ Relie avec d'aulres documents Tight binding may cause shaoows or distortion along interior margin/ La reliure serree peut causer de I'ombre ou de la distortion le long de la marge int6rieure Blank leaves added during restoration may appear within the text. Whenever possible , thasi' have been omitted from filming/ II se peut que certaineb pages blanches ajoutdes lors d'une restauration apparaissent dans le texte, mais, lorsque cela dtalt possible, ces pages n'ont pas 6t6 filmdes. Additional comments:/ Commentaires suppl6mentaires; L'Institut a microfilm^ le meilleur exemplaire qu'il lui a 6t6 possible de se procurer. Les details de cet exemplaire qui sont peut-dtre uniques du point de vue bibliographique, qui peuvent modifier une image reproduite, ou qui peuvent exiger une modification dans la .Ti^thode normale de filmage sont indiqu6s ci-dessous. I I Coloured pages/ Pages de couleur Pages damaged/ Pages endommag^es Pages restored and/oi Pages restaur^es et/ou pellicul^es I I Pages restored and/or laminated/ a Pages discoloured, stained or foxed/ Pages ddcolordes, tachetdes ou piqu6es I I Pages detached/ □ Pages d^tach^es Showthrough/ Transparence Quality of prir Quality inegale tie I'lmpression Includes supplementary materic Comprend du materiel supplementairu r~T Showthrough/ I I Quality of print varies/ I I Includes supplementary material/ Only edition available/ Seule Edition disponible Pages wholly or partially obscured by errata slips, tissues, etc., have been refilmed to ensure the best possible image/ Les pages totalement ou partiellement obscurcies par un feuillet d'errata, une pelure, etc., ont ^t6 film§es d nouveau de fapon d obtenir la meilleure image possible. This item is filmed at the reduction ratio checked below/ Ce document est film6 au taux de reduction indiqu^ ci-dessous. 10X 14X 18X 22X 26X 30X V 12X 16X 20X 24X 28X 32X The oopy fiimed here has been reproduced thanks to the generosity of: National Library of Canada L'exemplaire film6 fut reproduit grSce d la g6n6rosit6 de: Bibliothdque nationale du Canada The images appearing here are the best quality possible considering the condition and legibility of the original copy and in keeping with the filming contract specifications. Les images auivantes ont 6t6 reproduites avec le plus grand soin, compte tenu de la condition et de la nettet^ de l'exemplaire filmd, et en conformity avec les conditions du contrat de filmage. Original copies in printed paper covers are filmed beginning with the front cover and ending on the last page with a printed or tilustrated impres- sion, or the back cover when appropriate. All other original copies are filmed beginning on the first page with a printed or illustrated impres- sion, and ending on the last page with a printed or illustrated impression. Les exempiaires originaux dont la couverture en papier est imprim^e sont film^s en commenpant par le premier plat et an terminant soit par la dernidre page qui comporte une empreinte d'impression ou d'illustration, soit par le second plat, selon le cas. Tous les autres exempiaires orig ^aux sont filmds en commenpant par la premidi9 page qui comporte une empreinte d'impression ou d'illustration et en terminant par la dernidre page qui comporte une telle empreinte. The last recorded frame on each microfiche shall contain the symbol — ^^ (meaning "CON- TINUED "), or the symbol V (meaning "END "), whichever applies. Un des symboles suivants apparaitra sur la dernidre image de cheque microfiche, selon le cas: le symbole —^' signifie "A SUIVRE", le symbole V signifie "FIN". Maps, plates, charts, etc., may be filmed at different reduction ratios. Those too large to be entirety included in one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Les cartes, planches, tableaux, etc., peuvent §tre film^s d des taux de reduction diff^rents. Lorsque le document est trop grand pour etre reproduit en un seul clich6, il est filmd d partir de Tangle sup6rieur gauche, de gauche ^ droite, et de haut en bas, en prenant le nombra d'images ndcessaire. Les diagrammed suivants illustrent la m^thode. 1 2 3 ^~'"i 2 3 A 5 6 I ■( 7 A LAW TREATISE (JN TU^ CONSTITUTIONAL POWERS OF PARLIAMENT, AN'I OF THE LOCAL LEGISLATURES, UNDER THE I British North America Act, 1867; BY J. TEA VIS, Esquire, LL.B.; Of the New Brunswick Bar; Annotator.of Parsons on Partnership ; First Prize Law- Essayist of Harvari? University OF 1866 ; Author, OF Leading Law Editorials in the American Law REoisfiiER, (Phila. a866 and '67 ; Hon. Chief Justice Red- field, Author of "Law of Wills;" "Law of Railways," Ac, Editor), on Origin and History of tije Common Law : Jurisdic- tion OF the United States; Federal Courts; Common Law Criminal Jurisdiction of the State Courts, &c., &c. \ ' ■ " " Nothing extenuate, Nor set down aught in malice !'■' > . Shakspeare. ' " Qfcotirse, recognising as I do that the Bishop possesses a discre- tion in this matter 1 most fully admit that he is vastly more capable of exercising xt well than I am. But the way he does exercise it is subject to criticism, even by those less competent than himself ■ in the same way as the opinion and sentences of this Court, may and ought TO BE, and are, criticised hy laymen:' Per Bramwell, L. J., in Regina v. Bishop of Oxford, 4 Q. B. Div 5J6; IN Court OF Appeal OF England. , ^ €- ^. i^iv., SAINT JOHN. N. B. : " ^^ Printed by the Sun Publishing Co., Canterbury Street. 1884. 55749 f<'f-i ViS -4 tlf( I NTRODUCTION. So ranch confusion and contradiction liave grown up in connection with tlf Constitutional Law of Canada, that it lias become very dcsT.ible that some at^jmpt were made to overcome and remove it. On the one hand, we have tlie extreme views of Mr. Make, Mr. Mowat, Jidge I Ienry, the Supreme Court of New Brunswick, and others, laying down pinciples of construction, which, carried to their logic result, would virtually dtprive Parliament of all legislative power; while, on the other hand, we have jidgments from Justices Stron(4, Tasoiiereau and Gwynne, and from the Si{)rcme Courts of British Columbia anil New Brunswick, which, carried to their utimate consequence, would denude tlie Local Legislatiu'c; of all legislative p|wer. Neither of these sets of views is right. It was to demonstrate this fact, a|d to make an attempt to bring Order out of Chaos, that this treatise has been written. I The Author had previously, for another purpose, made an exhaustive : analysis of all the Constitutional cases in tlie Supreme Court of Canada, and of all decided by the Judicial Committee of the Privy Council, down to tlie Citizens' Insurance Go. v. Parsons, inclusive ; and felt that he was prepared to grapple with I tlie difficulties of construction that were in his way. Witli tliis view, at the I Ijeginning of the treatise, he confronted himself with three cpiestions, covering ! the whole ground, which he proposed making the whole discussion answer. In proceeding with the discussion, at quite an advanced stage of the work, he wiis j astounded to find, in two later cases decided by the Privy Council ; viz, Dobie v. I The Temporalities Board, (the Presbyterian case) ; and Russell v The Queen, 'l^ (The Canada Temperance A.ct case) ; principles of construction laid down, which, as he looked upou them, if logically .applied as sound principles — if, from tlieir peculiar unsoundness, it were not really impossible to practically apply them as governing principles — would swee)) away the whole legislative power of the ' Local Legislatures. As this fact forced itself more and more strongly on his mind, three ■ questions as to his course arose, viz : — - - _ ^ _. ,< :_ , First, — In this new element of confusion being introduced, should the work be abandoned as impracticable ? Second, — Should the original design of the treatise be carried out, and he confined to meeting only the difficulties that were then foreseen ? or ii INTRODUCTION, r/iiVi!,— Should the new (liffuMiltiea be grappled with, and an attempt! made to show that false principles, even when sustained hy high authority, (1 not the less false ? After much hesitation and deliberation, this last course haii been thou the most manly, tlie wisest and the best. A Second Part has, therefore, bei added to this treatise; some necessary modifications and qualifications made| the First Part, to more closely harmonize it with the author's views, as express! in the new and unlooked-for investigation ; and the work launched. J j Some readers will be startled, no doubt, at the boldness with which the new difficulties are met; but the author has the satisfaction of feeling that i meeting palpable error "fearlessly and faithfully," and boldly confronting , whether found in tiie utterance of politicians ; among our own courts and judgi, or even with so august and authorative a body as the Privy Council Board, h has not only performed his duty; but, that, he but anticipates the judgment f his intelligent readern when he entertains the hope that he hiis done so wit success. St. JoirN, N. B, April, 1884. CANADIAN CONSTimiONAL LAf . Incomparably the most interesting and important legal ques- . tions for the consideration of the people, whether lawyers or laymen, of this Dominion, are those in connection with the con- struction of the B. N. A. Act, 18G7, relative to the rights of legislation of Parliament, and of the Local Legislatures, re- spectively. In the speech of the Lieut. Gov. of N. B., in opening the recent session of the N. B. Legislature, is the following : — " The judgment of the Supreme Court of Canada, affirming the right of the Province in the Fisheries, and other judicial decisions recently rendered upon (juestions involving the powers of the Local Legislature, justify the hope that we may rely upon the court of final resort preserving the political autonomy of the Provinces against the dangers which threaten it from Federal en- croachments." Numerous articles, mainly from a political standpoint, have appeared in the leading political i)apers, in whi(!h the subject has been discussed, and in which such language as " Federal usurpa- tion", &c., is common. Recently, out-Heroding-Herod, a pamph- let has been issued from the " Morning Olironide," Quebec press, purporting to be by " The Honorable Mr. Justice T. J. J. Loranger," in which the most extraordinaiy and utterly untenable positions in the matter are taken. In a later portion of this treatise, we may direct attention to some of the crude absurdities in which that pamphlet abounds. In which the author makes the most ludicrous efforts to " darken counsel with words without knowledge." Just now, we propose to make, entirely independent of any political bias whatever, an honest, and we trust, intelligent examination and analysis of a number of the decided casas, with a view of making much clearer than at present is the case, the relative powers of Parliament, and of the Legislatures, (as for convenience we will CANADIAN CONSTITUTIONAL LAW. it designate them), under the B. N. A. Act. We propose with other cases, to examine a number of cjvses that have been decided in the Supreme Court of N. B., not because that Court, since it lost the benefit of the preseuce of its late Ciiief Justice, (tlie present Sir Wm. J. Ritchie), to give shape, with his great higr.l knowledge, to its judgments, is of any very high authority, for it jnust l)e frankly admitted tliat it is not ; but rather because we find a variety of cases there well fitted for examination, in connection with the decisions of the Supreme Court of Canada, and of the Privy Council Board, to enable us to come to an intelligent con^'lusion as to what is the law on the vexed, end confessedly, intricate, questions, involved in the cases decided under the not very clear language of the A(5t. THE DIFFICUI^TIES STATED. ]-*erhap8, except for lawyers already familiar with the leading points in the discussion, it w<>uld be plunging in medias res, to a greater extent than mi;;ht hn judicious, to take up those cases without some preliminary CAplanation, which we will, therefore, first make, as biicHy asj)ossible; reserving a f a! !e.' discussion of the points involved uiitil the cases which we shall cite shall come under examination. The Constitutional difficulties which have arisen, have mainly been under the 91st and 92nd sections of the Act, which are within that division of the Act providing for the " Distribution of Legis- lative Powers." And the difficulties which havearisen havebeenfrom two causes :Jird, that the subjects named in the 92nd section of the Act, as the subjects within the " Exchmve Powers of Provincial Legislatures", are very largely in direct conflict with many of the subjects named in the 91st section, as within the " Powers of Par- liament." Thus, while it is declared in the 92nd section of the Act, under the head too of "Exclusive Powa's of Provincial Legisla- tures,^^ that ** In each Province the legislature may exclvksively make laws in relation to matters coming within the classes of subjects next hereinafter enumerated, that is to say"; — naming sixteen diffiirent " classes" of subjects, among which are, for instance, — " 9. Shop, saloon, tavern, auctioneer, and other licenses, in order to the raising of a revenue for provincial, local, or mukdcipal purposes. " 12. The solemnization of marriage in the Province. " 13. Property and civil rights in the Province;" under the 9l8t section, under the heading of " Powers of the Parliament," are given as among the subjects or matters, within CANADIAN CONSTITUTIONAL tkW. | " the escchtaive legislative authority of the Parliament of Canada," 8uch, for inntanco, as — ' ^ .. ,. -w " 2. The regulation of Trade and Commerce. " 10. Navigation and Shipping. • , • .. ' "12. Sea Coa«t and Inland Fisheries. <. "21. Bankruptcy and luHolvuncy. _ -, j, ,: :; " 26. Marriage and Divorce." Here, clearly, it is obvious, that if Parliament has the exclu- sive right of legislating, for instance, on alt matters connected with the regulation of trade and commerce ; shop, saloon and other licenses, as named, as subjects, would come within the wide field of all matters relating to the regulation of trade. So, again, legis- lation on Trade and Commerce; on Navigation and Shipping; on Sea Coast and Inland Fisheries, and on Bankruptcy and Insol- vency, would be not only virtually, but absolutely, impossible, without interfering with Property and Civil Rights, or one or other of these subjects. And, on the other hand, if the Legislatures could exclusively legislate on all matters within Property and Civil Rights, they would be able to legislate exclusively, on about all matters ; and Parliament would be unable to legislate at all. So, again, if all matters connected with Marriage were within the legislative power of Parliament, that, necessarily, would include the Solemin"zation of Marriage as well. To have left the powers of the two legislative bodies in such an utterly irreconcileable state of antagonism, would have, been quite too absurd; and to obviate this, there were certain provisions made at the beginning and end of the 91st section of the Act. It is in the somewhat involved language used in these prpvisions, and in the failure to give due force to that language that THE SECOND DIFFICULTY in the construction of the Act has arisen. ' , ' It will be necessary now to examine these clauses. ' '" We will first consider the language at the close of the 91st section, and which has been the subject of misapprehension by very many ; among whom, as hereafter will be more specifically shown, may be mentioned, 3Ir. Loranger in his pamphlet ; Judge Fisher in two cases ; Mr. Blake in the Mercer- Escheat case ; and, still more surprising, by the Privy Council ; Sir Montague E. Smith delivering the judgment, in Parsons v. The Citizens Insurance Co., L. R., 7 App. Cas., at p. 108. The language of the clause leferred to, is : — $ UANAi>l IN CUNtiTliUTIONAL LAW. yJ ," Arnl uny inatlor cotniii}^ within uny of tlie classes of subjects onunttTiitcd in this Hci'tiuii shall not ho deonied to u.nu! within the clasM of" inatterH of a U)cal or j)rivat(( natnrc comprised in the enumeration of tlie classes of Hnl))octH by this Act assigned exclu- sively to the LegiHlaturo- of the Provinces." This clause, alone, is very inilefinite, and it is not singular that in many cases, it has been misunderstood. As a matter of relief from an cxeess of heavy discussion, which we will have directly, oue difficulty in it mif:;ht be illustrated by THE SMART BOY'S JOKE. '* llow many legs has a horse?" he asked of his less brilliant cum nan ion. " Four," was the reply. * ' " Suppose you called its tail a leg, how many would it have ?" " Why five, to be sure !" .; i ,-. . . .. ,, / " No, it wouldn't, you goose ! Culling its tail a leg, wouldn't maJce it a leg, would it f" When the clause says then, that matters arising within the classes of subjects in the 91st section, shall not he, deemed to come within the classes of matter in the 92nd ocction, they do so, not- withstanding, whether "deemed" to do so or not. And it is the very fact that they do come within them, that makes all the difficulty. And in what sense, when they actually do so come within those classes, they are not to be deemed to come within them, the clause leaves indefinite, and open to construction, or — misconstruction ! There are two senses in which the language may be taken : one, that they shall not come within the classes of sub- jects named in the 92nd section, so as to interfere with the right of the Legislatures to legislate with reference to the subjects-mat- ter in that section. This is the view taken of it by Mr. Justice FiSHEK in the two cases, Robertson v. Steadman, 3 Pugs., at p. 637, and in Steadman v. Robertson, 2 P. & B., at p. 594. But if this were the meaning, the words " be deemed to " would not have been inserted in the clause at all, and the language then expressly would have been, "shall not come within," &c. And, in fact, Mr. Justice Fisher in quoting the language from the Act in the cases above named, does misquote the language in that way, — " Shall not come within," &c. If this had been the language, and there had been nothing else in the Act to have imodified it, the Act, then, would have been perfectly clear and simple, and the absurdities which now fill up Mr. Loranger's p...iiiphlet, would not V CANADIAN CONSTITUTIONAL LAW. 'i- havo bt't'ii ahsunlitioH ut all ; hut the Ijef^iHlutuiCH would, in v«ry deed, have hoen thi; doiniiiaul lej,'iHlative iKxlies, and the p<)w«>r of Parliament would have been ahnoHl as un.suhHtuiitiaI " an a vision faded !' For, if Parliament could otily lt!;,'iHlato on the regulation of trade and eomraeree ; on navi}j;ati()n and shippinj; ; on haiik- ruptcy and insc Ivencjy, &c. tte., ho as to ho entirely outside and clear of " Property and Civil Rights," it could not legisliite at all ; for not a particle of legislation on the subjects named could be had which would not relate to Property or Civil Llights, or to both of these subjects. , ; , .. v mS <*»•(. ' .; - "%m fl ' r* ' THE OTHER INTKRPUKTATrON. ' ' " But the other and ihe correct interpretation involves no such absurdities. It is this : " Shall not be deemed to come within,'' &c., 80 that" no matter how much it may appear to do so," (to quote in effect, the language of Sir Wiujam lli'RJiirE, C. J ; Tas- CHEREAU and Gvvynne ,],]., &c.,) or, to use our own language, /ioi/> much it may actually do so, it shall not be deemed to do so, so as to interfere with or preventsueh legislation by Parliament. The t(!rm "deemed" too, is always thus used in Acts of Parliament, to provide that when a thing does something particularly named, it shall not be " deemed " to do so ; always implying that it tiuiy do that particular thing without being " deemed" to do it. But, with this undoubt- edly correct construction of the language in the clause we have been considering; and which enables us to avoid he monstrous absurdities in which we would be involved it' the first named con- struction were adopted ; and if Parliament had indeed no greater power and authority than Mr. I,oranger in his pamphlet, and othei-s who are talking so much about " Federal usurpation," &c., try to establish ; there are still THPEE FURTHER POINTS which require to be made much plainer than they at present are. These are : — First, What is the ])ower of the Legislatures to legislate in the first instance, (that is before I'arliament has legislated on any of the .subjects-matter in the 91st section that though not " deemed" to come within those in the 92nd section, actually do so,) on the subjects-matter nanu^d in the 92rid section ? Second, What is the limit of the power of Parliament to legislate with reference to matters named in the 91st section which do come within or interfere with those in the 92nd section ? and 8 CANADIAN CONSTITUTIONAL LAW. Third, Plow are the Acts of the Legislatures, and their powers to legislate, affected by such legislation, as named, by Parliament? It ;8 with the object of making, as intimated, these confessedly difficult questions much clearer than they now are, that we pro- pose grappling with them, and, as far as we can, honestly clearing away " without any political bias whatever," much of the doubt and uncertainty that, mainly through the perversions of political writers, (apropos of which we might say, parenthetically, that Mr. ^oranger's pamphlet is rather a political essay than a legal argu- ment), has been cast about these questions ; confessedly difficult to deal with even as mere questions of law. We would first how- ever, make still clearer, (as so much depends upon efctablishing what some very high authorities think should not, in connection with questions coming up under this Act, be attempted, namely, " a hard and fast" rule of construction), that the construction named, of the clause at the end of the 91st section, is the correct one. And, if correct, is as a rule of construction " a hard and fast" one. This w made much clearer by — following the rule in Coke's Institutes, ^?'sf, p. 381, thus : " It is the most natural and genuine exposition of a statute to constiue one part by another of ihe same statute, for that best expresses-' the meaning of the makers, and such construction is ex visctribus actus," — making, as we now shall do, an examination of THE FIRST CLAUSE OF THE 91ST SECTION, as has already been done by Siu Wm. J. Ritchie, C. J. ; by Justices Taschereau and Gwynne and by others. The clause is as follows : "9i. 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 ma^ters not .coming within the clas.ses of subjects by this act assigned exclusively to the Legislatures of the Provinces ; and for greater certainty, but not so as to restrict fhe generaHy of the foregoing terras of this section, it is hereby declared that (notwithstanding anything in this act) the legislative autiioriiy of the Parliament of Canada extends to all matters coming within the classes of subjects aext hereinafter enumerated, that is to Si.y : — " enumerating, then, twenty-nine classes of subjects. It is astonishing how strangely, and how frequently, this clause has been miscoastrued. In many case* the last portion of it, which is the part that really shows how the conflicting subjects given to Parliament and to the Legislatures are to be treated and reconciled, is entirely omitted, or treated as though it wer^. utterly meaningless. Thus, Mr. Loranger in the pamphlet to CANADIAN CONSTITUTIONAL LAW. which we ht;ve already made reference, on page 16, and again on page 50, quotes the lii'st portion only of the clause, as though that were the whole of It, ending his quotations with the word " Pro- vinces ; " and thus, leaving out of sight the very essence of the clause, " Playing Hamlet with the part of Hamlet omitted ! " So, also, as we shall see, docs Mr. Justice Henry. The first part of the clause is clear. By it, Parliament has the power " to make laws for the peace, order and good govern- ment of Canada in relation to all matters not coming within the classes of subjects by this act assigned exclusively to the Legisla- tures of the Provinces." Her?, then. Parliament is allowed to legislate, only, for the purposes named, on the matters that do not come within the classes of subjects assigned to the Legislatures. So far, uhat is clear. But thrt is by no means as it has so often been, most singularly, treated to be, the whole of it. The next part of the clause provides, that, " for greater cer- tainty, but not so as to restrict the generality of the foregoing terms of this section, it is hereby declared that [noturithstanding anything in thh-^ id) the exclusive legislative authority of the Parliament of Canada extends to all matters coming within the classes of subjects next hereino.fter enuma-ated, that is to say," — enumerating them. The clause in whole, then, simply says that " for the peace order and good goverment of Canada," Parliament may make laws " in relation to all matters" by the Act " not assigned exclusively to the LegMatwes "; and, also, without interfering with the general right of Parliament to legislate as above, on al i matters not so assigned to the Legisiatures ; it shall also have the power, notwith- standing anything in Vie Ad, to exclusively Icgiskde on all mattei*s coming within the enumerated classes of subjects, (naming them;) and, then, by the passage at the close of the section, which we have already e::amined, it is further provided, as in effect we have seen, that no matter how much the classes of subjects enumerated in the 91st section mav come within the class of matters named in the 92nd section, they shall not be deemed to do so, so as to prevent legislation by Parliament, on the subjects enumerated in the 91st section, no matter how much such legislation may appear to inter- fere, or may actually interfere with the subjects named in the 92nd section ; or with the legislation of the Legislatures, or with their right to legislate, with respect to such subjects, so named in the 92nd section. 10 CANADIAN CONSTITUTIONAL LAW. This is the only construction of the language to which it is fairly open ; and, with such construction, the clauses at the begin- ning and end of the 91st section are entirely consistent and intelligible. The effect of this, of course, is altogether different from what it would have been, if the latter part of the opening clause of the Dlst section, (which is so often ignored in th6 niisconstruiJtion of the Act), and the clause at the close of the section, had been omitted. Then, Parliament would have had the right to have legislated only on such matters as were not given to the I^egisla- tures ; and any legislation by Parliament within the subjects assigned to the Legislatures, would have baen ultra vires and invalid. And the Legislatures, as regards these subjects-matters, would have been the superior bodies, and Parliament the inferior body. But now all this is reversed ; and, on all the subjects- matter named in the 9 1st section, all proper and bona fide legislation by Parliament, within the fair scope and effect of such subjects-matter is intra inres and valid, no matter how much it interferes with, overrides, or renders abortive, the legislation of the Legislatures with respect to the subjects- matter named in the 92nd section of the Act. This, we claim, is the only possible construction of the language of the Act ; and it is also claimed that the Act thus gives us what it has been said more than once, by the very high authorities to which we have referred, we should not attempt to get, " a hard and fast" rule of construction in the matter, but that every question as it comes up, should be treated on its own individual facts and merits. We respectfully submit, that in the face of the Act, there is no escape from this " hard and fast" rule of construction, and that we are not to be left entirely at sea in the matter. And further, that carrying this construction to its legitimate result, and the legislation of Parliament being shaped thereby, is not as has been alleged by one of the political writers on the subject : — "A most unjustifiable usuipation of the rights of our Local Legislatures !" The very construction claimed here as the only proper construc- tion, is not either a fanfriml or accidental re.sult. Whether Parlia- ment has too much nower or not, it has only just such powers as the framers of the Canadian Constitution — leading men on both sides of politics — designed to give it. While, we claim, there is no escape from " the hard and fast rule of construction " which the express 'I » s CANADIAN CONSTITUTIONAL LAW. U '-. language of the Act gives us, we would also add that the language of Lord Carnarvon, in introducing the Bill into the House of Lords, shows how thoroughly well considered the whole matter had been by the framers of the Act ; Sir John A. Macdonald, Sir Etienne Cartier, the Hon. George Brown, &c., &c. ; and how deliberately they had concluded with reference to the *' Distribution of Legislative Powers/' as provided by the Act. After comment- ing on the distribution of powers, Lord Carnarvon added : — " In closing ray observations on the distribution of power, I ought to point out that just as f^z authority of the Central Parlia- ment will prevail wherever it may come into conjlict with the Local Legislatures, so the residue of Legislation, if an}', unprovided for in the specific classification, which I have explained, will belong to the Central body." British Col. " Case," in the Supreme Court of Canada, p. 54, line 3,7-37, &c. " JUDGE " LORANGER'S PAMPHLET DISPOSliD OF. As we have made reference already to a very pretentious and utterly absurd pamphlet by " The, Honorable Mr. Justice Lor- anger," in which he fairly runs to de^th the doctrine ti the domi- nant power of the Local Legislatures; and as we do not wish, uselessly, to take up time and space with any further considera- tion of that dreadtully weak production, we would dismiss all consideration of it, with merely this statement. Whether that pamphlet has been written by one who is, or who is not a Judge, if the author knows anything whatever about Law, so that he may be properly designated a Lawyer, he should know, that, as by the language of even that portion of the 91st section of the Act he has three times quoted, all that is retd'ned to the Legislatures is, only, what is expressly, " by this Ad," assigned to them, and, that, there- fore, they possess no other than certain limited and defined powers; even without any consideration whatever, of the manner in which these are liable to be affected and over-ridden by the dominant powers of Parliament, as provided for, as we have shown, by the latter part of that clause, and by the clause at the end of the 91st section. ANOTHER PROVISION. We have seen what the proper construction of the language in the two explanatory clauses of the 91st section, is. Very much the same effect that is produced by those clauses in reference to the subjects named in the 91st and 92nd sections, is also produced by somewhat diflferent language in the 95th section, relative to the CANADIAN CONSTITUTIONAL LAW. 8ubjects of "Agriculture and Immigration." Here it is provided that the Legislatures may legislate on these subjects for the respec- tive Provinces, and that Parliament may do the same, but it is further provided that the legislation of the Legislatures on those subjects " shall have effect in and for the Province so long and so far only as it is not repugnant to any Act of the Parliament of Canada." This, as has been shown, is very much the same effect as ifl designed to be produced, and as is produced by the explana- tory language at the beginning and end of the 91st section. FURTHER CONSIDERATION AS TO CONSTRUCTION, While we have shown, that, under the express language of the Act, I*arl lament is the dominant power ; and that the rule of construction is, that Parliament has the right bona fide to legislate on all the subjects-matter named in the 91st section, no matter how much these may interfere with, or come within, or override the subjects-matter named in the 92nd section, and that this is " a hard and fast rule of construction " ; we would novv state, that, while we think there can be no question (notwithstanding thd numerous discussions on the point that have taken place), of the correctness of this position, there Is another point closely allied to it, that should be made equally as clear. And that is this, that the subjects-matter legislated on by Parliament, must bona fide come within the classes of subjects named in the 91st section, and that it is here that the statement that there can be no " hard and fast rule of construction," tipplies ; and not to those portions of the 91st section, where we get a rule of construction, that, absolutely, admits of no departure from It whatever. But whether certain legislation by Parliament Is, or Is not, fairly and bona fide, within those subjects-matter ; or whether the legis- lation of the Legislatures is within the subjects- matter of the 92nd section ; and, if so, whether such legislation Is, also, within the subjects-matter of the 9ist section, which are exclusively within the powers of Parliament, are nicer questions, tl . have to be dealt with by the Courts as they arise, and with reference to which it is perfectly clear, that " no hard and fast rule of construction," applicable to all cases, can be adopted. But, every such case, so decided, Is a step towards establishing " a hard and fast rule" of Construction, and Is an aid In the construction of other questions, more or less analogous, that thereafter arise. As an instance, we beg to say, although we have never yet seen the point adverted to, that the decision of the Privy Council on r:^ CANADIAN CONSTITUTIONAL LAW. 13 THE CONSTITUTlONATJi'Y OF THE CANADA TEMPERANCE ACT, carries the doctrine of the dominant power of Parliament to legislate, very much fartlicr tlian U has ever been carrieA before; and very much farther, notwithstanding the attacks in the matter made, on that point, on the Supreme Court of Canada, (one of such attacks being contJ^ined in the pamphlet to which we have alluded), than the Supreme Court of Canada, had, previously, in any of its deci- sions, thought of approaching. This, we think we will be able to show, when IN THE EXAMINATION OF THE CASES, which we i;ow propose to make, we shall have reached Russell v. The Queen, L. R., 7 Ap. Cas. 829. THE QUEEN V. CHANDLER, (A. X). 18G9), 1 Han. (N. B. R.) 556, is the first case for consideration in our attempt to test all the rules of construction applicable to the ques- tions we are discuasing. The question in this case was whether an Act passed in 1868 by the N. B. Legislature, for the relief of Insolvent confined debtors was uftra vires. It was claimed that the Act was of no force or effect, as being an Act relating to Insolv- ency, which the Local Legislature had no right to pass ; that being one of the subjects assigned to the exclusive legislative authority of Parliament. It wa3 claimed in reply, that the B. N. Act makes procedure in civil matters in all Provincial Courts a matter within the exclusive control of the Legislatures; and that the arrest and discharge of debtors were clearly proceedings in civil matters, and controlled by the Courts where the proceedings are had ; neither arrest of a person nor his discharge relating to Insolvency. Ritchje, C. J., in delivering the judgment of a Court, which by his ability, he sustained in the high position of respectability as to the value of its decisions, which it has ever since lacked, in holding that the Act in question was ultra vires, said, inter alia : — "By section 91 it is declared, that, notwWistanding anything in the Act, (the italics are hio own), the exclusive legislative authority of the Parliament of Canada is extended to all matters coming within the classes of subjects next thereinafter enumerated, of which No. 21 is Bankruptcy and Insolvency. And, after enuraer- tion of all classes of subjects thus exclusively assigned to the Parliament of Canada, it is at the end of the enumeration enacted that 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 14 CANADIAN CONSTITUTIONAL LAW. enumeration of the class of subiecta by this Act aasigned exclu- sively lo the Legislatures of the Provinces. Thus, the exclusive right to legislate on the subjects enumerated Is affirmatively vested in general terms, as all matters not coming within the class of sub- jects assigned exclusively to Legislatures of the Provinces," (this is not strictly critically accurate,) "and for greater certainty but not so as to restrict the generality of such terras, the exclusive right is specifically extended in the enumeration of the subjects ; and, finally, by unequivocal words, it is declared that any matter coming within any of the enumerated classes of subjects shall not be deemed to come within the class of matters assigned exclusively to the Legislatures of the Provinces." ■'ft And, again, — " That branch of the Insolvent system which the Local Legislature has attempted to alter is, it is true, exclu- sively applicable to Insolvent confined debtors ; but it is not the less a matter relating to Insolvency, and we are at a loss to under- stand how it can be argued that it is not a matter coming within that class of subjects, viz., Bankruptcy and Insolvency, enumerated in ihe British North America Act as assigned exclusively to the Parliament of Canada." *^ The entire change that the B. N. A. Act has made in the pow- ers of the liCgislatures to legislate, is fully shown in this case. It will be noticed, too, that this decision was on the invalidity of an Act by a Local Legislature passed prior to Parliament having legislated at all on the same subject-matter. TWO RAILWAY CASES. ''*' The next N. B. cases to which we will refer, are the E. & N. A. R. Co., V. Thomas, I Pugs. 42, and the Queen v. Dow, Ibid.y 300. In the former it was held that legislating with reference to a railway in N. B., which was part of a scheme for a continuous railway, extending into the State of Maine, was not ultra mres the Local Legislature, ascoraing within the exception of lines " extending beyond thelimits of the Province" under the 10th sub-section of section 92. In the Queen v. Dow, it was held, Fisher, J. dissenting, that an Act of the N. B. Legislature, providing for the issue of deben- tures to assist in the construction of a railway from the State of Maine into N. B., was vHra vir&s, as being legislation as to a rail- way extending beyond the Province. In the former of these cases, it seems that Judge Fisher was dubitanfe. If so, there would seem to be good ground for his doubts; for if the exception did not apply to the railroad in question, it would be impossible CANADIAN CONSTITUTIONAL LAW. lA to find a road to which it would aj)ply, and the clause would be meaningless. In the latter of these two cases, the dia«ubject- matter ; or, take from the existing Courts the duty of administer- ing the laws of the land ; and that the power of the Local Legia- kUurea vjos to be subjed to the general and special legislative powers of the Domr.don Parliament." The following additional paragraph covers, explicitly, what are supposed to be modifications of the rule, (claimed in this treatise, to be a true, uniform, " hard and fast rule,) as contained in some of the latest cases, but which we claim, are no modifica- oions of the rule whatever; but, rather, simply make clear what the rule is, thus,- — " But while the legislative rights of the Local Legislatures are in this sense subordinate to the right of the Dominion Parliament, I think such latter right m.ust be exercised, so far as may be, consistently with the right of the Local liCgislatures ; and, therefore, the Dominion Parliament would only have the right to interfere with property or civil rights, in so far as such inierfcrence may he necessary for the purpose of legislating generally and effec- tually in relation to matters confided to the Parliament of Canada." That, we allege, will cover all the supposed exceptional cases, such as the Fishery case ; the Parsons Insurance case ; the Mercer- Escheat case, and the Ontario License case. This, we will make clearly appear, when, in detail, we examine these cases. The following brief extracts from the judgment of Mr. Justice Taschereau, in the same case, a'3 apt. The learned Judge says,— " I see in the B. N. A. Act many instances where Parliament can alter the jurisdiction of the Provincial Civil Courts. For instance, I am of opinion, that Parliament can take away from the Provincial Courts all jurisdiction over bankruptcy and insolvency, and give that jurisdiction to Bankruptcy Courts, established by such Parliament. I also think it clear, that Parliament can saj, for instance, that all judicial proceedings on promissory notes and bills of exchange, shall be taken before the Exchequer Court, or before any other Federal Court. This would be certainly inter- fering with the jurisdiction of the Provincial Courts. BiU, 1 hold that it has the power to do so quoad all matters within its authority." And, agait, — " The authority of the Federal power, it seems to me, over the matters lett under its control is exclusive, full and absolute ; ...1. iif ! 26 CANADIAN CONSTITUTIONAL LAW. I 1 1 M f! whilst as regards at least, some of the matters left to the Provincial Legislatures by sect. 92, the authority of these Legislatures cannot be construed to be as full and exclusive, when, by such contsruc- tion the Federal power over matters specially left under its control would be lessened, restrained or impaired. For example, civil rights, by the letter of sub-sect. 13 of sect. 92, are put under the exclusive power of the Local Legislatures, yet this cannot be con- strued to mean all civil rights, hut only thoat. luhich are not put under the Federal authority hy the other parts of the Act." That, intelligently applied, is the principle to this day, governing all the rightly decided cases, down to Hodge v. The Queen, inclusive, noth withstanding all the vapid declamation to the contrr.ry, in Parlianjent, or elsewhere ! THE OTHER EXTREME. In our examination of the absurd dissenting judgment of Wetmore J., in McLeod v. V/right, we exposed the silly reason- ing there, the rationale of which is, followed to its legitimate issue, that Parliament has, virtually, no power to legislate at all.. We come now to a case, which errs in the opposite direction, and, if it were law, would leave the Legislatures denuded of substantially, all their legislative powers. The case to which we allude is the somewhat celebrated case known as " THE THRASHER CASE," decided by the Supreme Court of British Columbia. The judges in this case, — Sir Matthew Begbie, C. J., and Crease and Gray, JJ., in most elaborate judgments, held, entirely mistaking the holding in Valin v. Langlois, just examined, that the Supreme and County Courts of the different Provinces are not the " Pro- vincial Courts" within the meaning of sub-sec. 14, of sec. 92, with reference to the " Procedure in Civil Matters," in which, the Legis- latures have the " exclusive," right to legislate ; and that, therefore such legislation by the Legislature, relating to the Supreme Court of British Columbia, was ultra vires. Their reasoning from the term " exclusive," is very much, in the opposite direction, like the reasoning o' those, who entirely ignoring all the rest of the Act, pait'cularly those governing dances in sect. 91, — because it is provided, in sect. 92, that "In each Pro- vince the Legislature may exclusively make laws in relation to matters coning within the classes of subjects next hereinafter enumerated, that is to say," (enumerating them), — foolishly jump to the conclusion, ignoring as named, because it is stated that the CANADIAN CONSTITUTIONAL LAW. 27 in Provincial Legislatures may "exclusively^' legislate in reference to such matters, that that term "exclusively" excludes Parliament from legislating on such matters aJ: ali ; uotwitiisiauding the sweeping, over-riding nature of the clauses in sect. 91, which we have examined. This explanation covers an immense amount of absurd judicial reasoning in many cases, and a great many very foolish political articles in the Press, and speeches in Parliament, and in the Local Legislatures. Having previously written to some extent, articles on the pro- per construction of the B. N. A. Act; when the judgments in the •'Thrasher Case" were delivered, an early copy was sent the writer by some parties interested in the question, and who were carried away with the judgments, requesting that they should be reviewed; assuming that they were unanswerable, and that this was without question. After a careful reading of the judgments, we wrote the following in reply to such request : — " An honest review of the judgments, would, in the main, be an .attempt, (I think an easy and successful one) to refute the many fallacies the judgments contain. . . . When, entirely mis- taking the holding in Valin v. Lauglois, it is argued that the Supreme Court and County Courts of the Provinces are not the 'I*rovincial Courts* within the scope and etfect of the 14th sub- sec, of the 92nd sec. of the Act; the 'Procedure' of which 'in civil matters,' the Local Legislatures have the ' exclusive ' right to regulate, I think a position is taken that is entirely untenable, and, that, on that point, are against it, the whole Act itself; judicial decisions under it, and the uniform legislation of all the Provinces with reference to those Courts. " Let me, now, within the necessarily limited space of a letter, meet one of the views, put, in the different judgmenfo^ with a considerable apparent logical force, and, with reference to which I marked the word ' exclusive^ above, in italics and quotation marks. The argument in the different judgments, is, that, clearly, by Valin V. Langlois, it is decided that the Dominion Parliament has the right to regulate proceduie in the Supreme Court of one of the Provinces. But, it is claimed, where the Dominion Parliament has the right to legislate at all, it has the 'exclusive' right to do so; therefore, it is insisted, that, having the right to legislate with reference to the Procedure in those Courts, it has the ' exclusive' right to do so ; hence, it is concluded, that the Provincial Legisla- tures cannot legislate with reference to such Procedure, being II i 28 CANADIAN CONSTITUTIONAL LAW. i ii t 'tj ;j y ■'1 it i i i 1 ewluded by the 'exclusive' rights of the Dominion Parliament. That is putting tlie argument fairly. Let us test it, now, for in- stance, by the 13th sub-sec, and see where we would land. By this, the 'exclusive' right to legislate in matters relating to ' Property and Civil Rights in the Province,' is in the Local Legislatures. But, in connection with 'The Regulation of Trade and Commerce,' 'Naviga- tion and Shipping,' ' Sea Coast and Inland Fisheries,' * Bills of Exchange and Promissory Notes,' ' Bankruptcy and Insolvency,' ' Naturalization and Aliens,' 'Marriage and Divorce'; &c., &c., &c. ; the 'exclusive' right to legislate with reference to which is in the Dominion Parliament, Parliament has a right to legislate with refer- ence to Property or Civil Rights, or to both of these subjects. Then, having the right to legislate with reference to Property and Civil Rights, pursuing the same argument as before, it has the 'exclu- sive' right to do so; hence the Local Legislatures have no right to legislate with reference to Property and Civil Rights ; their right to do so being excluded by the 'exclusive' rights of Parliament; and, therefore, the 13th sub-sec. goes with the 14th, and all the rest of the sub-sees, follow suit, and the Local Legislatures have no power at all. " In fact, the terra ' exclusive,' in both sections, does not absolutely mean 'exclusive.' In each section it simplj' means, * exclusive^ subject to, (fee. The right in the Dominion Parliament is to legislate exclusively subject to certain limitations ; and, in the Legislatures, subject to others. " I presume that your reason for wishing me to review the judgments was because you honestly felt that the positions were so strong that they could not be successfully attacked. With equal honesty, I am forced to a different conclusion ; and as I think, that, in fairly reviewing the judgments, I could show the correct- ness of this conclusion, unanswerably, I shall not comply with your request to review them, unless, after your receipt of this, and with a full knowledge of my views in the matter, you should still wish me to do so, as a pure matter of science; iu which case, on hearing from you again to that effect, I will do so, meeting the arguments simply as arguments, utterly irrespective of those who used them, and dealing with the judgments as mere matter for critical examination, exactly as I did with the absurd judgment of our own Court on the Constitutionality of the Canada Temperance Act, and a copy of which review I sent you." The letter was written on the 27th March, 1882. The re- ; CANADIAN CONSTITUTIONAL LAW. 29 quest was not repeated. The CasI'! was submitted to the Supreme Court of Canada, by the Governor-General in Council, under sec. 52 of the Supreme Court Act. and the Court, on the 18th June, 1883, by their answers, held tne judgments unsound, and sustained the construction of the B. N. A. in accordance with the contention in the letter from which we have quoted. GANONG V. BAILEY, 1 P. & B., 324, forms a connecting link between the class of cases we have just been considering, and that, including the ccunis celebrc, the Mercer- Escheat case, which has given birth to two quite elaborate pamphlets, and the simple point decided in which is greatly mis- understood. In Ganong v. Bailey it was decided, by a majority of the Court, that a Local Act to establish Parisn Court.s, the commis- sioners to preside in which wei>- to be appointed by the Lieut. Gov. in Council, was valid. It was claimed by WelJon, Q. C. (M. P.,) that the Act was ultra vires, inasmuch as the Court established by the Act was a Provincial Court within the meaning of the sub-section (14), we have been considering; and, that, therefore, the appointment was in the Dominion Government, under sec. 90 of the B. N. A. Act. The holding of the majority of the Court that these Parish Courts were not within the terms of the 96th section, relfttiug to " Superior, District and County Courts" in the Provinces, the judges of which the Gov. General was to appoint, is too clearly correct for doubt. In the dissenting judgment of Atj.en, C. J. and DuFF J., delivered by the learned Chief Justice, there is a great amount of stilted noniense, as regards the position of the Provinces under the B. N. A. Act, such as is found in the Mercer case, and in some of the other cases, about " The Queen, as the fountain of justice ;" " the undoubted prerogativas of the Crown," &c., &c. The fact really is, that the whole Executive and Legislative power that the Provinces now possess is simply such as by the express language of the B, N. A. Act, or by necessary implication from that language, is, by that Act, conferred on them. The whole of the rest of the power to make " laws for the peace, order and good government of Canada," is vested in Parliament in relation to all maUers not coming within tlie classes of iuhjects BY THE AcT, assigned to the Legislatures of the Provinces. The word " exclu- sively" has tended to mislead; without, to the slightest extent, affecting the proper construction of the Act. Ml ! :] I ''I Ir:-} ii ii i I III 1! 1 30 CANADIAN CONSTITUTIONAL LAW. In tho case of Gnnong v. Bailey there was but a question of the construction of one or two plain and simple passages in the Act, and 11 the mystery that was east about the case goes, literally, for nothing. " THE CROWN," AND THE PROVINCES. In the last case considered, "The Crown" was made an important factor in it. This *' Crown" business is being fairly run to death. In a speech, the other day, by the Attorney General of N. B., in the House of Assembly of that Province, the power of the " Crown" was strongly descanted upon, and it was declared as unquestionable that " The Crown has the right, in itself," to build a bridge across the St. John River, at Fredericton — Act or no Act. This is carrying '' the political autonomy of the Provinces against the dangers which threaten it from Federal encroach- ments," idea, even beyond that in connection with which it was so grandiloquently used in Lieut.-Gov. Wilmot's speech ! What perfect nonsense such utterly unfounded pretensions cover ! This Crown question came up, squarely, in Lenoir v. Ritchie, 8 S. C. R. 576, where the (question was as to the regulation of pre- cedence of Queen's Counsel, in which it was claimed that " In all matters that are under the exclusive jurisdiction of the Local Legislatures, the Lieutenant-Governor represenl the Queen, and all powers enjoyed by him prior to Confederaticm in relation to the organization of the Courts and the administration of justice were confirmed by the B. N. A. Act," and, semhle, that the power to appoint Queen's Coun.sel, or to regulate precedence among them, was vested in the Lieutenant-Governors, either ex officio as repre- senting the Queen, or by virtue of Acts of the Local Legislatures. In reply It was alleged that similar claims of the Lieutenant- Governors to exercise powers as representatives of the Crown had been made ; in one case by the Lieut.-Gov. of N. B., who claimed to exercise the pardoning power ; and, in another, where the ques- tion arose as'to the amnesty claimed to have been promised by the Lieut.-Gov. of Manitoba in the Lepine case. In both cases the pretension was refuted and ignored. In the principal case itself, the Court held that it was simpl}-^ a question of authority under the B. N, A. Act, and that that Act had not given any such power as was claimed ; and that the N. S. Act relating to the matt,er, was ultra vires, and void. Taschereau J., in his very able judgment, pertinently re- marks, — i CANADIAN CONSTITUTIONAL LAW. 81 "Indeed, there is not a single clause, a single word of the B. N. A. Act upon which it can be seriously contended that the Lieut.- Governors are vested with Her Majesty's prerogative rights of conferring such honors aiui dignities." And, after examining the different sections of the Act relating to the powers of Lieut.-Governors, adds further, — " In fact, no where in the Act, can a single expression be found to sustain the contention that the Lieut.-Gov, has such a power. Well, if he has not this power in virtue of the B, N. A. Act, how can the Provincial Legislatures give it to him ? In what clause of the Act can it be found that these Legislatures have such a right? What part of section 92, where the subjectti left under their control and autltority are enumerated, gives them the power to legislate upon Her Majesty's prerogatives ? " The answer to these questions was rather a difficult one, but it were easier to find that, than to find that the Province so far re- presents " The Crown," and, as such, by exercise of the prerogative, simply, without any claim, whatever, to any other power, can build a bridge across a public navigable river ; let the jurisdiction over such be never so much in Parliament! The unreasoning advocates of the " Provincial autonomy " idea, are fairly running mad ! Mr. Justice Gwynne, in the same case, .says, — " As to the appointment of Queen's Counsel, nothing is said, nor is there any subject placed under the exclusive control of the Provincial Executive or Legislative authorities, which, by the most forced construction, can, in my opinion, be said necessarily to involve the right to appoint Queen's Counsel. The result must therefore be, that the right still continues to form, as it ever has formed, part of the Royal Prerogative vested in Her Majesty (who still retains her Supreme Executive authority over the Dominion of Canada equally as over the British Isles), to be exer- cised by her at her pleasure, either under hei sign manual, or through the high officer, the Governor-General of the Dominion, who alone within these Confederate Provinces fills the position of Her Majesty's representative." And, again, — " Now, if it has been and is lawful for the Lieut. -Governor to make Queen's Counsel, it can only he so by the provisions of the B. N. A. Act. If that Act does confer the power upon the Pro- vincial Executive, no doubt the Lieut.-Goveruor has it, and a Provincial Act can add no force to the Imperial Act ; but if the 82 CANADIAN CONSTITUTIONAL LAW. i) I ','■ ! 'f^ Imperial Ad does not confer the power, then the Lientenant- Oovemor has it not, nor can any Act of the Provi7ic'ud Legisla- ture effectually declare that he has, or by enactment pointing to the future, confer it upon him." That is clearly the law. The questions as to whether the Local I^egislatures have certain powers; or whether the Acts of Parliannent are an infringement or not on rights vested in the Pro- vinces, under the Act ; or whether, under the powers in the Act, Parliament can, and to what extent, over- ride the legislation of the Legislatures, are simply questions of construction of the Act itself ; and all else that has l)een dragged into the discussion, is entirely extraneous, and has led to unnecessary confusion and com- plication in connection with many of the questions that have arisen under the Act. One of th'^se cases into which so much superfluous matter has been brought, is the somewhat celebrated, but extremely simple meu(;er-eschkat case. This was a ca.se, — Mercer v. The Attorney General for Ontario, 5 S. C. R. 538, — where the simple question that was in- volved in it, was, as to whether under the B. N. A. Act, where lands escheated for want of heirs, the lands so escheated went to the Pro- vince or to the Dominion. The discussion of this really simple question took a wide range ; the report of the case occupying in the official reports not less than one hundred and seventy-five pages ; and the result of which was that a majority of the Court wrongly held, misconstruing the Act, tliat the lands vested in the Dominion. Sir Wm. Ritchie, C. J., and Stuong J., dissented. The whole matter depended on the proper construction of sections 102 and 109 of the B. N. A. Act ; the first of which pro- vided that " All duties and reveiuies over which the respective Legislatures," &c., " before and at the Union had and have power of appropriation except such portions thereof as are by this Act resetted to the respective Legislatures of the Provinces, t>r are raised by them in accordance with the special powers conferred anthem by this Act," shall, in effect, belong to the Dominion. And section 109, as follows, — " All lands, mines, minerals and royalties belonging to the several Provinces," &c., " at the Union, and all sums then due or payable for such lands," &c., " shall belong to the several Pro- vinces in which the same are situate, or arise," &c. The simple reason of the case is this : The ungranted lands, CANADIAN CONSTITUTIONAL LAW. ^d Parliament. In no other way, that I can .see, can full effect be given to the positive and unambiguous words of the 91st section, and the two sections be made consistent." This is reasoning very much as the British Columbia Judges reasoned in the "Thrasher Case." If the Legislatures were ex- cluded from legislating on matters which "relate to the matters over which the legislative authority has been given to the Dominion Parliament by the 91st section," on some of the subjects in the 92nd section, they could not legislate at all. For instance, legis- lation on the " Solemnization of Marriage" i.s legislation on matters relating to Marriage. Legislating on Trade Licenses is legislating on matters relating to Trade. And legislating on Property and Civil Rights in the Provinces may involve legislation that 40 CANADIAN CONSTITUTIONAL LAW. W: ' ii % " i :'■; i :,■ ! t i 1 " relates" to nearly every subject in the Olst section, and yet be perfectly good legislation within the powers of the Local Legisla- tures. The fallacy, which is by no means an unimportant one ; for it is a fallacy, on one side of the question, which would sweep away, virtually, all the powers of legislation on the part of the Legislatures ; as would have been the case if the British Columbia " Thrasher Case" had bean law ; is still better shown by the next paragraph. Mr. Chief Justice Allen continues, — " There are numerous other subjects besides the fisheries over which the exclusive control is given to the Dominion Parliament, and by which either the property or the civil rights, or both, ol the people cf this Province are affected ; such as trade and commerce ; navigation and shipping; bankruptcy and insolvency; marriage and divorce ; and yet it has never been contended that the Local Legislatures would have any power to legislate upon any of these subjects. Indeed, this Court has already decided in the case of Reg. V. Chandler, (1 Han. 548), that the Legislature of this Pro- vince has no authority, since the union, to pass an Act relating to Insolvent Confined Debtors, because it related to insolvency — a matter over which the Dominion Parliament had the exclusive control under * The British North America Act ' — though it was contended, in that case, that the Act in question merely affected the civil rights of debtors in respect to their discharge from prison. The effect of that decision is, that the Local Legislature lias no right to deal mth any subject which, even indirectly, relates to a mai- ler over which Vie Dominion Parliament 1ms the exclusive power of legislation. I cannot distinguish tliis case, in principle, from Reg. V. Chandler." In one of a series of articles written by the writer in October, 1879, and published in the Globe, (St. John,) where we undertook to show that the unanimous judgment of the Supreme Court of N. B. in Ex parte Grieves, as to the Canada Temperance Act being ultra vires, was wrong, and which view was subsequently sustained, and on the ground we took, by the Supreme Court of Canada ; we then claimed that the positions taken as above, by Mr. Chief Justice Allen, were wrong, and that he then erred, in going too far in an opposite direction, from the views enunciated by the Court on the validity of the Canada Temperance Act. The decisions since, in the Parsons Insurance Case ; the Fishery Case ; the British Columbia Case ; the Mercer Escheat Case, and the Ontario License Case, sustain the view expressed by us, as above, before any of these cases were decided. CANADIAN CONSTITUTIONAL LAW. 41 be sla- ne ; eep the bia lext the In the case of Robertson v. Steadrnan, (ante), Weldon and Duff, JJ., concurred with the judgment of Allen, C. J. Fisher, J., delivered a diss^"*"",-; judgement, in which, making a mistake in the opposite direc*^ion from the rest of the Court, he states, that, in the 91st section it was declared that none of the classes of sub- jects enumerated in it "should come within ' the class of matters of a local or private nature comprised in the enumeration of the clasf^es of subjects assigned to the liocal Legislatures, and especially stated in the last paragraph of the 92rid section.' " This statement is incorrect in two particulars. First, the provision in the section is not that they shall not come withiji, &c. ; as stated ; but that they sliall not be deemed to come loithin, &c. ; the one expression being, as we have seen, the exact opposite of the other ; and, exactly, re- versing the construction of the Act on the points named. The other mistake is, that the worus " and especially stated in the last paragraph of the 92nd section," although treated as part of the clause, and included within the quotation, is an interpolation. Eliminating this from Mr. Justice Fisher's dissenting judgment, and the judgment otherwise, is, in the main correct; altho' it con- tains some other passages too broadly stated. The following are apt quotations in the matter : — " All the power possessed by the Legislature of New Bruns- wick still exists as potential as ever, but it is distributed between the Parliament and the Local Legislature, and it is exercised in each according to the limitations of the constituting Act. . . , Now, what is the meaning of the words ' Sea Coast and Inland Fisheries^ in the 91st section? By the employment of this lan- guage, what power of legislation is conferred on the Parliament ? Looking at the objects sought to be attained by the union of the Provinces, and the state of legislation in the different Provir.ces at the time of the union, I think it must be inferred that the inten- tion was to confer upon the Parliament the same power that the Legislatures had been accustomed to exercise ; that is, the power to provide for the regulation and protection of the Jislieries." And, again, — " If the authority to legislate upon ' Sea Coast and Inland Fisheries,' empowered the Parliament to interfere with private rights, and deal with the property in the fish, upon the same principle, by the authority to legislate upon 'Navigation and Ship- ping,' it would be enabled to deal with the property in the ships of ship-owners." (So, in fact, it can ; for instance, when the ques- ^! 42 CANADIAN CONSTITUTIONAL LAW. m' Hi ii I i' i i tion of ship-ownership, as property, comes, bona fide, within either of the subjects-matter of the 9 1st section; 'Bankruptcy and Insol- vency,' for instance. As a reference, however, by Judge Fisher, to ships, as property, not, in its most extended sense, bona fide coming within the subject of ' Navigation and Shipping,' it is not, at all, an objectionable one). " The right in the ship is no higher or more sacred to the ship-owner than the right in the fish to the riparian proprietor.'' In the following, Mr. «Tustice Fisher, clearly, (as is shown by d liferent portions of his judgment: for instance, by that one corrected by us above, showing that there were distinctions, and qualifications, and extensions, in the matter, that had not entered into his mind), wrote " wiser than he knew ": — " In conferring upon the Local Legislatures the power to legislate upon property and civil rights, I am of opinion it was the intention that their power should only he trenched uport to the extent required to enable Hie Parliament to exercise the authority to legislate upon the different subjects assigned to it, and the Parliament, in legislating upon the suhjects within its competency, can only so far interjere vrith property and c^vil lights as is necessary to work out the legislation upon the, yarticular subjeds specially delegated to it. The authority to deal with the fish, the property of individuals, and to appropriate that property, is not necessary to the working out of the powers relating to Sea Coast and Inland Fisheries." That, on the branch of the subject to which it relates, is the law, well expressed, as established by the well-decided cases bearing on it. And, yet, in the very next sentence of Judge Fish KRS judgment, he reasons as though, under no circumstances, and in no case, has Parliament the right " to trench" upon any of the subjects-matter named in the 92nd section. There, and where he misquotes the closing clause of '^he 91st section, and in other instances, as wrong in the one direction, as Chief Justice Allen, and those concurring with him, were, in the other. A rather uncertain court. Here, now, comes a feature in the case almost unique — except, always, of course, in the same Court, since A. D. 1875. That was the case of Robertson v. Steadman, 3 Fugs. 621 ; the judgment in which was delivered by Allen, C. J. ; Weldon and Duff JJ., concurring ; and Fisher J., delivering a dissenting judgment ; " Wetmore J. taking no part, being related to one of the parties in the cause." Subsequently, the same question, came up before the il CANADIAN CONSTITUTIONAL LAW. 43 same Court, and between some of the same parties, and in Steadraan V. Robertson, 2 P. & B. 580, Ai^len C J., whose judgment, aojented to by Wei.don and Duff, J J., was to be over-ruled, took no part ; and, now, Fisher J.'s judgment, including even the mistakes pointed out, that was the dissenting judgment in Robertson V. Steadman, is re-delivere^, and is the only judgment delivered, in Steadman v. Robertson ; Weldon J., with a new inspiration, — " 1 have ' i the opportunity of reading the able judgment of my brother i Ai^jeh, and I entirely agree with him.'' Wetmore J. concurred. And Duff J. — " I have not been able to consider this matter as fully as I would desire to do. I am not able to concur, })ut I do not wish to be considered as dissenting. I there- fore take no part." It was well that there was another Court where the question could be more authoritatively disposed of. In Steadman v. Robertson the claim of Counsel for the Plain- tiff was substantially established ; — '* That, in non-tidal waters, in the Province, the right of fishing is in the riparian owner where the lands through which the rivers run have been granted, and, where not granted, the right is in the Crown, represented by the Local Government, and exists for the benefit of all the inhabitants of the Province : That the Local Legislature could not regulate the fisheries, but that it could legislate as to the right of property in the fish in non-tidal waters. Clearly the Parliament of Canada may regulate the fisheries, that is, the time and manner of fishing, but they cannot interfere with private property." To which latter clause, to make it correct, we would add : — They cannot do it in the instance named, simply because bona Jide legislation on the fisheries, does not, in the particular case named, involve interfer- ence with the private property of either individuals, or of the Pro- vince. But, holding this doctrine, does not at all interfere with that; that Parliament may legislate upon all the subjects-matter named in the 91st section, no matter how much chese may over-ride, ex- clude or supersede the powers of the Local Legislatures with refer- ence to any of the subjects- matter named in the i)2nd section. This latter is " the hard and fast rule ; " but what does fairly and bona jide come within the classes of subjects named in the 9lst section, is, as in the case of Legislating on the subject of the fish- eries, a question for consideration, as it arises. To decide that, due consideration has to be given to such parts of the Act as relate to the subject-matter ; and it is then a question of construction as to what does, or does not, come within such subject-matter. i* CANADIAN CONSTITUTIONAL LAW. ,11 » ii 11 1 The question next came up in the {Exchequer CJourt, on the petition of Robertson, before Mr. Justice Gwynne. That learned Judge, in Steering dear, as he has been so careful to do, in so many judgments, of the Scilla of entirely ignoring the effect of the con- trolling clauses in section 91, on which the barques of so many judges of little erudition have been wrecked ; gets into the Chary- bdis of giving too much effect to those clauses, by which he would, in all such cases as these Fishery Cases ; the Parsons Insurance Case, and the Mercer Escheat Case, deprive the Local Legislatures of their power, legitimately and bona fide to legislate on different items of the subjects-matter left within their legislative power, by a proper reading of the Act. To avoid, for instance, Mr. Blake'8 blunder, that the power under the 91st section, cannot be exercised 80 as to over-ride, or supersede, or exclude, (which ever, or all, of these it was he really meant), any of the rights of the Local Ivcgislatures to legislate on the subjects-n t^^tter in section 92, the learned Judge falls into the opposite mistake that " nothing is placed under the exclusive control of the I/ocal Legislatures unless it comes within some or one of the subjects specially enu- merated in the 92nd section, and is at the .same time outside of the sevet^al items enumerated in the dlst aedioii, that is to say, does not involve any interference with any of these items." This learned Judge has been consistent throughout in acting on this rule, strictly, as a " hard and fast " one. If the rule were true, he would, of course, be correct in doing so. But, if false; then, neces- sarily, when the cases arise with reference to which the rule is a false one, the learned Judge's unsound rule — as it is claimed that it is — leads him astray ; and, therefore, his judgments in such cases as those named have not been sustained. To mention instances, named before, where, under such a rule, legislation on subjects- matter named in section 92 could not be had at all, reference might be made to the 13th sub-section, — " The Sc^'^mnization of Marriage in the Province," which, of necessity. " involves an interference " with the subject of " Marriage," in the 26th sub-section of section 91. Again, legislating with reference to trade licenses, ("Shop, Saloon, Tavern, Auctioneer and other licenses"), necessarilj'^ in- volves some interference with the subject of " Trade." 1 To show that we are not at all mis-stating the positions of the learned Judge, we quote from The Queen v. Robertson, 6 S. C. R. 52, at page 64, where, in the judgment delivered in Ex- chequer, the learned J udge says, — M |i ;| CANADIAN CONSTITUTIONAL LAW. 40 i " To secure an uniformly consistent construction of this our Constitutional Charter, it is necessary that some certain and suf- ficient canon of construction shouLl be laid down and adopted, by which all Acts passed as well by the Parliament as by tlie Local Legislatures may be effectually tested upon a question arising, as to their being or not being intra vires of the legislating bofly pass- ing them. Such a canon appeared to me to be that formulated by me in the City of Fredericton v. The Queen, 3 S. C. R., 506, and it still appears to me to be a good and sufficient rule for the required purpose, namely, — ' All subjects of legislation of every description whatever are within the jurisdiction and control of the Dominion Parliament to legislate upon, except such as are placed by the British North America Act under the exclusive control of the Local Legislatures, and nothing is placed under the exclusive control of the Local Legislatures, unless it comes within some or one of the subjects specially enumerated in the 92nd section, and is at the same time outside of the several items enume^'ated in the 91 st sec- tion, that is to say, does not involve any interference with any of those items." It Licems, also, clear to us, that the first part of this rule is not accurate. The exception seems to us to he too large. According to that rule there is either nothing placed within the power of the Local Legislatures, at all events as regards some of the sub-sections of sec. 92, under the latter part of the rule; or, else, under the first part of the rule, with reference to the same sub-sections, there are powers in the 92nd section that Parliament cannot over-ride. Both of these positions, we claim, are wrong. The Local Legisla- tures may legislate on the subject of licences, so as bona fide, on that subject, to affect trade, or " to involve an interference" with trade. And, against the first part of the rule, then, Parliament can legislate on tra-- 50 CANADIAN CONSTITUTIONAL LAW. '«. ]'•> \l ■ it I matter named in sec. 92 ; so is the same statement equally true as regards the right in Parliament to legislate as regards the Fisheries ; no matter how much puch bona jide legislation, on that subject- matter, may affect property and civil rights, or any other of the matters in the different clauses of sec. 92. In each case, the bona fide legislation of Parliament, on eacli of those subjects-matter — Shipping and the Fisheries — will over-ride, or exclude, or super- sede the legislation of the Provinces on any of the subjects- matter of sec. 92, to the extent to which, under the Act, they have been so legitimately affected by such bona fide Parliamentary legislation. Thus, notwithstanding the correct decision of the Supreme Court of Canada, that the riparian rights, as an incident of the land, go to the owners of the land, whether these are private individuals or Provinces, and carry with them the right in the Local Legislatures to legislate as to land and its incidents, within the terms " properly and civil rights," outside of what is contained bona fide in the subject-mattur of the Fisheries ; so, under the hard and fast rule in the 91st sec, Parliament in legislating, bona fide on the Fisheries, can interfere with both property and civil rights ; and over-ride, and supersede, and exclude the Provincial right to legislate on these subjects-matter, so far as they come within or are affected by, legitimate, bona fide legislation, by Parliament on the Fisheries. Thus, Parliament, as all admit, in legislating on the Fisheries, can interfere with civil rights, in legislating as to the time of fishing ; and, equally so, with any other civil right that may bona fide come within legislation on the Fisheries. Equally so, too, as regards affecting ])roperty. Thus, clearly. Parliament, in legislating on the Fisheries, can legislate with reference to mill-dams, so as to require them to be built with fish-ways ; and in legislating, legitimately, on the Fisheries, can declare that the property in all nets wholly across streams, or that have meshes below a certain size, shall be forfeited. So far, then, it is again suggested, as our examination has yet extended, not a case has presented itself outside of the hard and fast rule, which, we submit, is the clear and unquestionable rule under the Act; that, when the legislation of the two bodies under sections 91 and 92 — both being legitimately followed — comes in conflict, the dominant power is in Parliament ; the subordinate in tht Local Legislatures. We now propose taking up other cases for examination, the most of which, including the Parsons Insurance Case ; the Canada 1 jt CANADIAN OONSTITUTIONAL LAW. 61 in in Temperance Act Case, and the case of Hodge v. The Queen, will rank themselves under the general heading of THE LICENSE CASES. Ex parte Fairbairn, 2. P. & B. 4. In this case it was held that a Local Act, applicable to Commercial Travellers, authorizing the Mayor of Fredericton to g^'ant to any persons w'shing to engage in any trade, protbssion, &c., in the City, a license to en- gage therein, is not vltra vires, as being an interference with Trade and Commerce. Allen, C. J., in delivering the judgment said, — " It was contended that the Act was ultra vires, as interfering with Trade and Commerce, the regulation of which is assigned ex- clusively to the Parliament of Canada, by the Olst section of the B. N. A. Act. We think, however, that the right to require licenses for the purposes mentioned in the several Acts referred to is clearly within the power of the Provincial Legislature, under the 92nd section of the B. N. A. Act, which gives the Provincial Legislature the exclusive power to make laws in relation to various matters enumerated ; and, among others, (sub-section 9), Shop, Saloon, Tavern, Auctioneer, and ether licenses, in order to the raising of a revenue for Provincial, local or municipal purposes. " The object of requiring Commercial Travellers, (so called), tc take out licenses to enable them to carry on their business, is that they shall contribute to the local revenues in like manner as the residents of the place contribute to *^he revenues by the payment of taxes. We cannot see how this i^ any greater interference with Trade or Commerce than the requiring a person to take out a license to sell liquors, or a license to sell goods as an auctioneer. In either case the statute says the person shall not carry on that particular business unless he obtains a license to do so ; and, there- fore, it may be s*iid that indirectly such an Act interferes with trade; but if so, it is just such an interference as the 92nd section of the B. N. A. Act allows." In Severn v. The Queen, 2 S. C R. 70, a variety of questions came up, but the case really turned upon the question whether Brewers' licen.'^^ies were included in the words *' and other licenses," in section 92, sub-sec. 9 of the Act, and it was held that they were not ; and, that, therefore, an Ontario Act requiring a Brewer to take out a license, who had been licensed under a Dominion Act, was ultra vires, as in conflict with a Dominion Act regulating Trade. ,• ■1 i t i B! ni-r 62? CA-NADIAN CONSTITUTIONAL LAW. ■ k k RiTOHiE and SxRONa JJ.) ilissented, on the ground that the term " Brewers" came fairly within '* other lioenses" in the sub- section. The latter learned Judge, however, went a good deal farther than this, in meeting the objection that, holding that the allowance of such legislation would conflict with the right of Parliament to legislate ; and laying down what we think is another incorrect rule in the construction of sections 91 and 92, said, — "The objection, that the wider construction which I have attributed to sub-section 9 brings that provision into collision with sub-section 2 of sec. 91, which confers the power of regulating trade and commerce on the Parliament of the Dominion, is, I think, fully answered by reading (lie subjeata enumerated in section d2 a8 excepted from aeciion dl. It is, I conceive, the duty of the Court so to construe the B. N. A. Act as to make its several; enactments harmonize with each other, and this may be effected, without doing any violence to the Act, by reading tJie enumerated ppwera in section 92 in tlie manner suggested, as exceptions from these given to the Dominion by section 91. Read in this way, sub-see. 2 must be co)istrued to mean the regulation of trade and commerce save in so far as powo' to iiderfere with it is, by sec. 92, conferred upon the Provinces. . . . The words ' other licenses' must cither be silencedj altogether, or else, whatever they may mean in conjunc- tion with the preceding specific words, they must be read as an exception to subsection 2 and every other enumeration of section 91, witli vjhich they would conflict if otherwise construed." s-, While it might have been held in this case that the term " Brewers" came witiiin the words " other licenses," without, as between, merely, sections 91 and 92, coming any more in conflict with sub-section 2 of section 91, than it would in xhe case of any of the licenses named ; or than it did in the previous case to which we have referred, {Ex parte Fairbairn), in sustaining the right of licenses to Commercial Travellers ; the learned Judge (Mr. Justice Strong), going beyond that in laying down the rule he did, not only contravenes the express language of the Act and the rule of construction there given, but furnishes a rule as bad as are those of Mr. Loranger in the Mercer Case, or either of the numerous rules that are offered in lieu of that which the Act itself expressly supplies. For, if, reading the clauses in section 92, as "exceptions from,.' the right of legislation in Parliament, under section 91, while, clearly, all difficulty is got over, very easily, as to the right and power of the Legis- CANADIAN CONSTITUTIONAL LAW. 53 1'^ V latures to legislate, what becomes, in their turn, of the rights and powers of Parliament? If Parliament ear, on that rule, only legislate on the Regulation of Trade and Commerce ; the raising of Money by any mode or system of Taxation; Navigation and Shipping; Sea Coast and Inland Fisheries; Bills of Exchange and Promisisory Notes; Bankrnptcy and Insolvency; Copyrights; Naturalization and Aliens; Marriage and Divorce, and even the Criminal Law, excepting from all these the matters of Property, and Civil Rights; it is difficult to see what kind of legislation on those different subjects there could be; ali ble only on the terras of makii-g Property and Civil Rights exceptions from such legislation. In fact, the rule, like those that have been examined which have been offered in connection with the "Provincial au- tonomy" idea, is so utterly and palpably unsound that it was only with some difficulty, that we were able to come to the conclusion that we had not mistaken the meaning of the learned Judge. But the idea is too plain, and too often repeated, (four times, as italicised by us), to allow us any such aperture for escape. So, it is oidy left for us to point this out as another impracticable rule introduced in lieu of that which the Imperial Parliament has given us in the Act. The same contestation, in another shape, was made by counsel in the case, Mr. Mowat, (Ibid. 81), and it is to-day the claim made by naany pol'Mcians; but, as we have seen, it is utterly unsound. 'Mr. Mowat stnted his claim, and that of many others with him, thus broadly, — '^ ' ■ >' ijoi.-" Section 92 of the B. N. A. Act, 1867, confers upon the legis- lature of each Province the jurisdictii of making laws so as to ex- clude the authority of the ParliaTnent of Canada in relation to matters coming witfmi the clasaes of subjects enumerated in that section." This is open to the same criticism as Mr. Justice Strong's rule, as it, in effect, expresses but the saiue thing in a somewhat different way. "Exclude the authority of the Parliament of Canada in relation to all matters. coming within" section 92; and not only do you controvert the rule of construction in section 91 ; but the whole force of the section itself is destroyed, AND parliament GANNOT LEGISLATE AT ALL ! The " Provincial autonomy" would Bfwadlow up everything ! Mr. Oroiiks, if possible, holds still stronger views. According to him, — assuming that he was really ir earnest — "In each Pro- \ \: i:* 111-' (-1 CANADIAN CONSTITUTIONAL LAW. viiice a plenum, imperium wuh constituted and not a subordinate authority, or one with only such powers as were specially conferred. Once jurisdiction is given over a subject-matter, the power is absolute." Ibid. 84. This is reasoning very much, in the opposite direction, like the British Columbia Court reasoned in the " Thrasher Case ;" and, in the opposite direction, leads to about the same absurd result. And, it is such views as these, that, it is claimed, the Mercer- Escheat case ; the Fisheries case ; the Parsons Insurance case, and Hodge v. The Queen, sustain ! " The force of folly can no farther go !" In Regina v. McMillan, 2 Pugs. 110, it was held that an Act of the Local Legislature passed since Confederation, imposing fines and penalties for selling liquor without license, was not ultra vireSf as within the right to make laws relating to licen^os and to impose penalties for enforcing such a law, Hodge v. Tue Queen, in principle, goes not one step further than this properly decided case. The case of Eegina v. The Justices of Kings, 2 Pugs. 535, is quite an important case in the matter. It was an application for a mandamus to compel the sessions for the County to grant a license for the sale of spirituous liquors, the Justices having refused to grant licenses on the ground that a local act vested a discretion in them whether to do so or not. Ritchie, C. J. thus lays down the law, — " To the Dominion Parliament of Canada is given the power to legislate exclusively on ' the regulation of trade and commerce, and the power of raising money by any mode or system of taxation.' The regulation of trade and commerce must involve full power over the matter to be regulated, 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 Parliament is general without limitation or restriction" (it is questionable if Sir Wm. Ritchie would use just these terms now ; and, if he would, whether in some senses, he would be strictly accurate), " and therefore must include traffic in articles of mer- chandise, not only in connection with foreign countries, but that also which is internal between different Provinces of the Dominion, as well as that which iscarried on within the limits of an individual Province. . . If, then, the Dominion Parliament authorize the importation of any article of merchandise into the Dominion, and place no restriction on its being dealt with in the due course of CANADIAN CONSTITUTIONAL LAW. 65 > trade and commerce, or on its own consumption, but exacts and receives duties thereon on such importation, it would be in direct conflict with such legislation and with the right to raise money by any mode or system of taxation if the Local Legislature of the Province, into which the article was so legally imported and on which a revenue was sought to be raised, could so legislate as to prohibit its being bought or sold, and to prevent trade or traffic therein, and thus destroy its commercial value, and with it all trade and commerce in the article so prohibited, and thus render it practically valueless as an article of commerce on which a revenue could be levied." And the learned Chief Justice discusses the matter, in the same judgment, from another point of view, thus, — ' : . <' . I i# " Under the B. N. A. Act, 1867, the Local Lerjidatures have no power except those expressly given to them, and with respect to the granting of licenses affecting trade they are expressly confined to ' shop, vsaloon, tavern, auctioneer and other licenses, in order to the raising of a revenue, for Provincial, l/ooal or Municipal purposes,' a provision under which a revenue may be derived from the sale and traffic, but which the prohibiticjn of the sale or traffic would entirely destroy, and which would be in direct antagonism with the privilege thereby conceded. C; x; -■ ■■'-■' " We by no means wish to be understood that the Local Legislatures hav^ not the power of making such regulations for the government of Saloons, Licensed Taverns, &c., and the sale of spirituous 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, matters 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 referred to, in order to raise a revenue for the purposes mentioned, the Legislature undertakes directly or in- directly, to prohibit the manufacture or sale, or limit the use of } * This is exactly the doctrine which is established by the Privy Council in Hodge V. The Queen; the holding in which case has been entirely misunderstood. It is a mistaken idea to suppose, as many seem to do, thcit Hedge v. The Queen, has introduced a new principle in the construction of the B. N A. Act. The leading point established by it accords, exactly, with the law as above laid down by Ritchie, C. J. 56 CANADIAN CONSTITUTIONAL LAW. if, 1 any article of trade and commerce, whether it be spirituous liquors, flour, or other articles of merchandise, so as actually and absolutely to interfere with the traffic in such articles, and thereby prevent trade and commerce being (tarried on with respect to them, we are clearly of opinion they assume to erercise a legislative power which pertains exclusively to the Parliament of Canada, and in our opinion the Act of the Local Legislature declaring 'that no license for the sale of spirituous liquors shall be granted or issued within any Parish or Municipality in the Province when a majority of the ratepayers, residents in each Parish or Municipality, shall petition the Sessions or Municipal Council against issuing any license within such Parish or Municipality,' is ultra vires the Local Legislature." This case was followed by Kx parte Mansfield, in the same Court, 2 P. & B. 56, when it was again held by the whole Court, that the Loca-l Legislatures have no [)()wer, directly or indirectly, to prohibit the sale of spirituous liquors, " suoh power belonging ex- clunively to the Parliament of Canada." Allen, C. J., delivering the judgment of the full Court, constituted, then^ of himself, and Weldon, Fisheu, Wetmore and Duff, JJ., said,— "This case cannot be distinguished from that of the Queen v. The Justices of King's County, where, under precisely similar circumstances, the sessions of King's County refused to grant a tavern license to one McManus, and this Court granted a man- damus, on the ground that the Local Legislature had no power, directly or indirectly, to prohibit the sale of spirituous liquors, such power belonging exclusively to the Parliament of Canada. We adiiere to Viat decision, and, to the reasons on which it was founded, which may be considered as incorporated in this judgment, and, therefore, we shall make the rule absolute for a mandamus, as ap- plied for." And, yet, this very Court, constituted exactly as above, which had, unanimously, held, — ** adhering to the decision and the rea- sons on which it was founded," in Regiua v. The Justices of Kings, — that, "directly or indirectly to prohibit the sale of spiritvous liquors " belonged " exclusively to the Parliament of Canada," held in JiJx parte Grieves, (not, in that name, reported on this point), that— THE CANADA TEMPERANCE ACT, OF 1878, was ultra vires. The judgments, particularly of Weldon, Fisher, and Wetmore JJ., were, probably, the most ridiculous of all the it CANADIAN CONSTITUTIONAL LAW. 57 f judgments that have yet been delivered on this ultra virea question, and we notice, that, in Regina v. Taylor, 36 U. C, Q. B., 183, the deduction is there stated, from the holding in that case, that the exclusive power given in the 91st section to the Dominion Parlia- ment is not exclusive as against the Fiocal Ijegislatures, hut as against the Imperial Farliammt ! That was rather an extraordin- ary provision in the" Distribution of Legislative Power"" cer- tainly ! but even that pales before the ibsunlities in the judgments which we shall now examine, in Ex i irtc Grieves. Thus, while on the one hand, stating the law exactly as it is, they say, — "Under the B. N. A. Act, 1867, section 91, sub-section 2, the powers of Parliament extend to the regulation of Trade and Com- merce ; and if this Ad is within the powei-s of tJiis section, N ) objec- tion AS TO ITS CONSTITUTIONALITY CAN BE SUSTAIN Et."' And, again, — " If the provisions of this section (the 99th section of the C. T. Act), are necessary for the regulation of the trade in intoxicating liquors in the different Provinces, then though they may appear to trench upon property or civil rights, or to limit the power of the Local Legislature to raise a revenue from saloon, tavern, or other licenses, they must fee deemed to be within the power of Par- liament ; if they are not necessary they are ultra vires." Right in the very teeth of these thoroughly correct statements of the law, then, as though they had not the slightest idea in the world of the meaning or effect of what they had just been saying, as quoted above, they go on with such nonsense as the following : — "The power to legislate b}' this section (the 91st of the B. N. A. Act,) is expressly confined to matters not coming within the classes of subjects assigned exclusively to the Legislatures of the Provinces ; so that, however plausible an argument might be raised upon the previous part of the section, vihere the matter comes loilhin the classes of subjects assigned exclusively to the Local Legislatures, Dominion legislation must be stayed. . . What right has the Dominion Parliament to declare what shall be the law, and what a breach of it, in reference to the very class of subjects so withheld from the Dominion Parliament, and exclusively given to the Pro- vincial Legislature, and to impose a penalty for the violation ? . . The Provinces had the right to the making and enforcement of municipal regulations for the purposes mentioned in sec. 92, and the Dominion Parliament had no power to interfere with sv^h Provincial rights." 68 CANADIAN CONSTITUTIONAL LAW. 1.^ ] 1 And the climax of absurdity is fairly reached in the following quotation from Mr. Justice Wetmore's jud<^ment : — " Thc7i as to property and civil rights these are exclusively under the control of the Local Lex/islaiures. The law authorises the im- portation and manufacture of liquors on payment of certain duties. When legally imported or mamifa(!tured, liquor is the subject of property as much so as a horse or any other description of personal property. The owner has just the same right in and to it, as he can have to or in any other personalty, 6nd he has a right to use it and dispose of it at his own will, and pleasure, siibject to any local enactment or regulation, and the Dominion Parliament has no right or power to inter fei'e in the slightest degree with it, simply because the Impeita^ Act has declared that in reference to property AND CIVIL RIOHTS IN EACH PROVINCE, THE LEGISLATURE MAY EXCLUSIVELY MAKE LAWS IN RELATION THERETO." If Parliament had " no right or power to interfere in the slight- est degree,'' with property or civil rights, how in the world it was going to legislate in reference to Bankruptcy and Insolvency, or to the numerous other subjects in sec. 91 that had property or civil rights for their very essence, never occurred to those sapient judges ; who, really, until the utter absurdity of their judgments was pub- licly exposed, actually were priding themselves on their judgments as wonderful achievements ; and wonderful achievements they really are! but in a sense entirely different from their views of them when they were first delivered. Of course with such reasoning, and ignoring all that was stated in their judgments as io the dominant power of Parliament in case of conflict arising as between the subjects-matter in the 91st and 92nd sections, they declared that the Canada Temperance Act was ultra vires, on the ground of its interference with the subjects-matter in Nos. 9, 13, and 16 of the clauses of sec. 92. And, really, aside of their absurd self-contradictions, and utter ignoring of the powers of Parliament on the subjects-matter enu- mi^'^ated in section 91 , if the question simply were as to whether the Canada Temperance Act did interfere with the Provincial right to legislate as to Licenses; to Property and Civil Rights in the Province, or to matters of a local or private nature in the Province, it would be very dinioult, and we see no escape from it, very absurd, to hold, (notwithstanding all that there may be in the Privy Council case of Russell v. The Queen, 7 App. Cas. 829, yet to be examined), that the Canada Temperance Act did not I' $ CANADIAN CONSTITUTIONAL LAW. 69 interfere with all those things ; and, if that of itself were sufficient to make the Act ultra vires, that it, unquestionably, was so. But, inasmuch, as it ha(, been very clearly decided by, as we have seen, the Supreme Court of N. B. itself, over and over again ; by the Supreme Court of Canada, and by the Privy Council Board, that legislation by Parliament, within the legitimate scope and meaning of the various subjects-matter in section 91, is perfectly valid ; then it l)ecame clear, that, if the Canada Temperance Act were within the regulation of Trade and Commerce or any other of the subjects-matter enumerated in section 91, it was valid, tho' it did interfere with Property and Civil Rights; the granting of Licenses, or matters of a local or private nature in the Province. Mr. Chief Justice Alx.en, though not less wrong in his judgment, (with which Duff J. concurred), than his brother judges, was, at least, much more consistent in his judgment than they. Thus, while we see him laying down the law, properly, very much as did his brother judges at the outset of their judgments, thus, — " If the Act was a regulation of Trade and Commerce within the words of the 91st section, the fact that it affected Property and Civil Rights would not be sufficient to establish its unconstitution- ality. No doubt this Act does affect Property and Civil Rights ; but there are many subjects over which the Dominion Parliament has undoubtedly the exclusive right of legislation, which also af- fect Property and Civil Rights in the Province, e. g. Bankruptcy and Insolvency ; Navigation and Shipping ; the Fisheries and others. In these cases where the exclusive power is given to the Dominion Parliament, the general powers given to the Local Legis- lature by section 92 must yield, Robertson v. Steadman, 3 Pugs. 621. " In cases where the Dominion Parliament has the exclusive right to legislate its power is supreme and it would be no valid objedion to an Ad so passed, that it interfered with private rights ; and if the Act in question related to a subject-matter which was within the pro- visions of section 91 of the B. N. A. Act, it could not be objected that the effect of it was to prevent persons from selling as they thought proper, property which they had acquired before the Act passed ; " — he took, at least, the more consistent, if equally unsound posi- tion, that the Canada Temperance Act, which is an Act regulat- ing the traffic in intoxicating liquors, is not, within the meaning of ('if* - r 60 CANADIAN CONSTITUTIONAL LAW. I' f the 9lHt HWition, an Act regulating Trade; and joined with hiH brother judj^es in holdinji^ the Act ultra viren as being an inter- ferenee with the right of" the Loeal IjeglHlntures to legislate on the subjecjts-nmtter named in ciauseH 'J, 13 and 1(5 of'weotion 92. Those judgments seemetl to us ho utterly absurd, that, in a lengthy review of them, published in St. John, N. B., in Oct., 1H79, we pointed out, very plainly, the transparent fallaciies with which they abounded ; and, after a very exhaustive examination of the authorities in that Proviueo bearing on the ([uestions involved, we claimed to have established the following propositions : — '* First, — That the Dominion Parliament and the Lo(!al Legis- latures, have not, as has been claimed, concurrent powers, but that Parliament has the dominant, and the Local Legislatures, the subordinate power. we other vitsw of it. The Supreme (Jourt of Canada rest their judgnu^nt on the At!t being within the Regulation of Trade and '^Jommerce, and pla(!e no stroHS on the position taken by Judge Palmj^K. The Privy Council, while not ,, Two propositions by Mr. Lash, Counse' for the Appellants, read together, are not, in themselves, in one sense, unsound. Thus, — " That the Provincial Legislatures have only such legisla- tive powers as have been specially conferred on them by the B. N. A. Act, and that the whole balance of the legislative power over the internal affairs of Canada and the Provinces composing it, rests with the Parliament of Canada;" and, that, "When the powers specially conferred upon the Dominion Parliament clash with the powers of the Provincial Legislatures, the latter must give way." Yet, at the same time, the first of these propositions, as an in- dependent one, is open to the criticism that the B. N. A. Act assumes, in its " Distribution of Legislative Powers," to speo'fy the powers given to each ; and the description of the powers given to Parliament is quite as special as it is in relation to the powers given to the Legislatures. The position, therefore, taken by the learned Counsel in the first of these propositions, does not, except in one sense to which we shall hereafter advert, assist UB in the I i. l>! 11 'If m< m 'K . I- 62 CANADIAN CONSTITUTIONAL LAW. construction of tlie Act. Even the (jeneral language used, whether as to Parlianient or the Ijegislatures, is npedal as to the powers of the one relatively with, or as a{ the plural word "claaaes" instead of the singular word '• class. " In so using the word, there ii a marked disagree- ment with Sib Montauue E Smith, who. in the Parsons Insurance Ca«e, mis- construed the closing clause of the 91st section, where the language occurs ; as will be hereafter shown. ) -i (m CANADIAN CONSTITUTIONAL LAW'. private subjects enumerated in the 92nd section. Beyond this- principle laid down, so clearly, by the learned Chief Justice, there i^? still another correct principle of construction to which we: shall require to direct attention in connection with the -xaniinatloa' of the case we are now considering ; which, from the Privy Council's vicw, assuming it to be right, may, possibly, still further enlarge the power of Parliament under the Act, an against the right of the Local Legislatures to legislate as to mere local or private matters- in the Proviiice. That other rule of construction we will consider when we reach the case in the Privy Council. .-i'tni-ai vxi The following additional paragraph from the judgment of the learned Chief Justice, on the point, is ec^nally clear, and we> submit, equally indisputable : — >". ?« i " It has been likewise very strongly urged that the Dominiorit Parliament cannot have the right to prohibit the sale of intoxi^ eating liquors, 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 char- acter, and so interfere 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 pro- hibit to a great extent the Dominion Parliament from legislating in respect to that large branch of trade and commerce carried on in intoxicating beverages, and so take away the full right to regulate ^ alike foreign and internal commerce. If they cannot prohibit the internal traffic because it prevents the Local Legislatures from raising a revenue by licensing shops and taverns, the same result would be produced if the Dominion Parliament prohibited its im- portation or manufacture. For, by the same process oi" reasoning, it mujt follow, that they could not prohibit its importation on" manufacture, or in atiy way regulate the traffic, whereby the sale or traffic should be injuriously affected, and so the value of licenses be depreciated or destroyed. In my opinion, if tbs Dominion Parlictment, in the exercise of aiul within its legitimate and< undoubted right to regulate trade and commerce, adopt such regulations as in their praciioal operation, conflict or interfere xuith the hensflciai cperation of local legislation, then the law of the Local L"gislature must yield to the Dominion Law, because matters coming within the subjects enumerated as confided to Par- liament, are not to be deemed to come within the matters of a local nature,' (this, .".s we shall see, h not the way Sir Montague \) •. 1 CANADIAN CONSTITUTIONAL LAW. 66 I w E. Smith and the Privy Council would ernoneously put it), " com- prised in the enumeration of subjects assigned to the Local Legislatures. In other words, the right to regulate trade and commerce is not to beovei -ridden by any local legislatioi. in refer- ence to any subject over which power is given to the Local Legislature." Mi'. Justice Tabchereau, also, puts the matter very clearly, and very correctly, in the latter part of the following paragraph ; which paragraph covers another important ground in addition to the position taken by the learned Chief Justice; as shown \r the extracts we have mtde above. The additional point nan? . i H^' the learned Judge is the one to which we intend referring moio particularly when examining the judgment of the Privy ( >. ' • jil in the case. We make the following important extract from the judgment of Mr. Justice Taschereau : — ?' " Section 91 of the Imperial Act is clear on this : It expressly authorizes the Federal Parliament to make laws in relation to all matters not exclusively assigned to the Provincial Legislatures, and enacts in express terms, that the enumeration given of the class&s of subjects fulling under the control liomntif tf given for greater certainty, but not so as to "istrict the rights of the Federal Parliament generally over all matters not expreasly delegated to the Provincial Legislatures. If this Temperance Act would be ultra vires of the Provincial Legislatures, because the B. N. A. Act does not give them the power to enact it, I fail to see why it is not intra vires of the Dominion Parliament. Then, it seems to me, that under the words * regulation of trade and conjinerce,' t'ue B. N. A. Act expressly gives the Dominion Par- liament the right to this legislation. It may, it is true, interfere with some of the powers of the Provincial Legislatures, but sec. 91 clearly enacts that, notwithstanding anything in this Act; not- withstanding that the control over local matters, over property and civil rights, over tavern licenses for the purposes of raising a revenue, is given to the Provincial Legislatures, the excliisive legislative authority of the Dominion extends to the regulation of trade and commerce, and this Court has repeatedly held, that the Dominion Parliament has the right to legislate on all the matters left under its control by the Constitution, though, in doing so, it may interfere with some of the poM^ers left to the Local Legislatures." We would, resi)ectfully, submit, that the latter part of this paragraph, is a clear, honest statement of the law as the statute £ ^ Jj a II f M ; Rd CANADIAN CONSTITUTIONAL LAW. itself gives it to us. It is a difficulty inseparable from written Constitutions, as with codes, that, in their practical operation, conflicts and difficulties arise not previously anticipated, involving construction, and very often leading to misconstruction ; very much of which latter has already, in different decisions of the Provincial Courts, accumulated about the B. N. A. Act, 1867. The first part of the paragraph we will examine more fully at a later stage of this investigation, as already intimated. It is also respectfully submitted that the following paragraphs from the judgment of that able and usually accurate Judge, Mr, Justice G WYNNE, {Ibid., 564), do not furnish a reliable rule of construction in the matter. Thus, says the learned Judge, — "All that is necessary, therefore, in order to determine whether any particular enactment is infra or ultra vires of the Parliament, is to enquire : does or does not the enactment in question deal with, or legislate upon, any of the subjects assigned exclusively to the Provincial Legislatures ? If it does, it is ultra, if it does not, it is intTa vires of the Dominion Parliament." If this were law, then, as Parliament, in passing the Canada Temperance Act, " dealt with," or *' legislated upon," — as was net down to this stage of the case seriously and intelligently questioned at all — Property and Civil Rights and Licenses, then, according to that rather singular statement of Mr. Justice Gwynne, such legislation was ultra vires. But if so, so also was all the legislation of Parliament with reference to trade and commerce, bankruptcy and insolvency, and hosts of other subjects, the legislation in refer- ence to which, ex necessitate rei, involved dealing ivith or legislat- ing upon some one, or other, or others, of the subjects- matter assigned " exclusively to the Provincial Legislatures." U: It is difficult to conceive that Mr. Justice Gwynne could have laid down so unsound a proposition as the above. But he has not only done so, but repeats the error. After setting forth the opening and closing clauses of section 91, the learned JuDQE again erroneously repeats the unreliable, and, really, unsound " test ;" thus, (p. 505),— "Here, then, to dispel all doubts, if any .should perchance arise in certain cases, and to remove all excuse for any encroach- ment by the Dominion Parliament upon the jurisdiction of the Local Legislatures, or for any assumption by the latter of the sovereign power and authority of the former, two tests are given by our clmrter for the ready determination in every case of the ques- * CANADIAN Constitution^ AL law. 8? tion, 'vhether a particular enactment is or is not ultra vires of the Dominion Parlianoent, or of the Local Legislatures; namely:—***'* " First, — if to the question ' does the particular enactment deal with any of the particular suhjects, assigned exclusively to the Local Legislatures ? ' a plain answer in the affirmative or negative can be given free from any doubt, that settles the point. If the answer be in the affirmative, the enactment in question is beyond the jurisdiction ; if in the negative, it is within the jurisdiction of the Dominion Parliament." *" M i: « This is open to the same observations as were made with reference to the first quotation from Judge Gwynne's judgment. It is unsound, as has been shown. And, not only is it unsound, but it is directly opposed to what the learned Judge calls "the second test," which, unlike the other, is a real test in the matter; and agrees with the statements in the valuable extracts from the judgments of the Chief Justice and Mr. Justice Taschereau. Judge GwYNNE says,— 'ii'! ■'-■'(^ ^'^v •■-' ■ - ^i.*■.'''^'^ .. .; .'--iM! h'y>iv>^ h, " But to remove all doubts, in case the enactment under con- sideration should be of a nature to raise a doubt, whether it does or not deal with one or other of the matters particularly enumerated in the 92nd section, the second test may be applied, namely : 'does the enactment deal or interfere with any of the subjects particularly and for greater certainty enumerated in the 91st section?' If it does, then, (notwithstanding that it otherwise might come within the class of subjects enumerated in the 92nd section), it is within the jurisdiction of the Dominion Parlia ^ent, for the plain meaning of the closing paragraph of the 91st section is, that, iiotwithstand- iais anything in the Act, any matter coming within any of the sub- jects enumerated in the 91st section shall not be deemed to come within the class of subjects enumerated in the 92nd section, how- ever much they may appear to do so." This is so well, and so accurately stated, that it makes the pre- vious incorrect paragraphs appear the more remarkable. Follow- ing this, the general reasoning of the learned Judge agrees with his position in the paragraph just quoted. But, as he proceeds, carrying his argument ir. this new direction rather far, the learned Judge, it is submitted, limits to too great an extent the power of legislation in the J^ocal Legislatures, and deprives them of powers that legitimately belong to them ; at least as regards some of the subjects -matter in section 92. The following is the parage, — " All subjects of whatever nature, not exclusively .issigned to 08 CANADIAN CONSTITUTIONAL LAW. ! i the Local Legislatures, are placed 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 enumerated in section 92 and is at the same time outside of all of the items enumerated in section 91, by which term ' outside of ' I mean does not involve any interference with any of the subjects com- prehended in any such items." Right in the very teeth of this rule, stands the fact that the solemnization of marriage, (one of the subjects in sec. 92), is not " outside of," but is right inside of, and does involve an interfer- ence with the subject of marriage— one of the subjects of sec. 91. So, too, is the legislating on Trade licenses right inside of, and involves an interference with, to a certain extent, the subject of Trade. The learned Judge evidently saw the difficulty as regards his last named rule, (which, again, is not a sound one), as regards the first named subject, (solemnization of marriage), and has fought hard, (p. 566, &c.), to get over the difficulty in his way; but is not successful. After we u'ct throui»;h with the examination of the cases, and we come to answer the (piestions stated at the commencement of this treatise, we will see, if, on this last named point, (i. e. as to the rights of the Local Legislatures to legislate), we cannot furnish a more correct rule. The same question of solemnization of marriage, to which we have referred, has, more than once, been thought to present a difficulty in the way of our accepting, as the rule of construction in all cases, the plain, simple rule that the statute itself gives us. We may as well deal with that now. Take the rule laid down in the statute, and as a test, apply it specially to tiie two subjects- matter, and see what is the clear, legal effect ; which is that, carry us where it will, which we are seeking in the matter. If the provision is an unwise or injurious one ; the remedy is by its legal repeid by the necessary legislation ; not by construing away that which is the express law in the matter. The Act gives the " Exclusive Power" for the Provincial Legislatures to legi' late on the subject of " The Solemnization of Marriage in the Province," but it provides, that, " for the peace, order and good government of Canada," Parliament — notwithstand- ing that it is provided in the Act that the Local Legislatures may exclusively legislate on the subject of the solemnization of marriage in the Province — shall have the exclusive legislative authority to legislate on the subject of marriage, and any matter ■> a CANADIAN CONSTITUTIONAL LAW. 69 > 'i'-- ' corning within the subject of marriage, shall not be deemed to come within the subject of solemnization of marriage, no matter how much it may appear to do so, or how much it may actually do so, so as to prevent or interfere with Parliament legislating effectually and bona Jide on the subject of marriage. This, as we have seen, over and over again, is the only construction that the language in sections 91 and 92 is fairly open to. It is, alike, the constructiou of the Privy Council in all their well decided cases ; of the Supreme Court of Canada, and of all the well decided cases in the matter, in the Provincial Courts. This, then, in this most extreme case, is the result, that legis- lation by Parliament on marriage is good, no matter how much it may interfere with the subject of solemnization of marriage in the Province. It may be said that this is begging the cjuestion. Not by any means. It is simply making a clear, plain, honest applica- tion of the Statute within its express language. It is but another ap- plication of the Privy Council Case, which, under precisely the same inexorable rule in the Act, holds tliat legislation by Parliament on Insolvency, is good, no matter how much it interferes with the so- called *' exclusive" legislative power of the Legislatures on Pro- perty and Civil Rights ; procedure in the Provincial Courts, or with any other of the "exclusive" power of the Local Legislatures. As an instance, perhaps not inapt, of the power of Parliament to legislate on marriage so as to effect solemnization of marriage in the Province. Suppose Parliament passed a general act legal- izing marriage with a deceased wife's sister ; but, with the provision that it woidd require, before the marriage could be .solemnized, that a special license should be obtained from the Gov- ernor of the particular Province, and, (to meet the objections of some (jlei'gymen), that it be solemnized Itefore a Justice of the Peace. This would be legislating on marriage, and, at the same time, with reference to the solemnization of marriage in the Pro- vince; and, not only would it be good within the express terms of the Act; but, unless good, then, on neither the ground on which the Canada Temperance Act has been sustained in the Supreme Court of Canada, nor, on the very different, and much stronger ground, as we shall see, on which it was sustained by the Judicial Com- mittee of the Privy Council, could that Act have been held intra vii^es. We name these questions of marriage and solemnization of marriage, because they have been steered clear of so often ; or else have been met by the most fanciful treatment in the attempts to i ? 70 CANADIAN CONSTITUTIONAL LAW. Ml get clear of the dittiimlties that they seetnod to preseut to any '• hard aud fast rule or canon (^f construction." For an extremely fantastic way of treating this subject, see, in the case we are con- siderijig, per Mr. Justice Gwynne, 3 S. C. R. 568. The most satisfactory way to test the correctness of *' hard and fast rules " is with extreme cases. It is respectfully submitted that the learned Judge, (Mr. Justice GwYNNEj, is again wrong when Ik lys, (p. 571), — " The unerring tent to determine wh '.er the power to pass the Act is, or is not, vested in the Dominion Parliament is to en- quire, under the application of the rule, as I have stated it, is, does it, or does it not, deal with a snl)ject jurisdiction over which is given exclusively to the Local liCgislatures ? for, if not, it is vested in Parliament." As before intimated, that is no test at all ; as there are many things that would come within property and civil rights, (classes of subjects declared to be within the " exclusive " jurisdiction of the hoed Legislatures), that, as being within trade and commerce; insolvency ; the fisheries, and many others of the subjects named in section 91, would not be within the jurisdiction of the Local Legislatures at all. A better rule — at least to test the powers of the Local Legis- latures — is one furnished by the Privy Council, Sir Montague E. Smith delivering the judgment, in the Citizens Insurance Co. V. Parsons, 7 App. Cas. 109, thus, — " The first question to be decided is, whether the Act impeached falls within any of the classes of subjects enumerated in sect. 92, and assigned exclusively to the Legislatures of the Provinces ;/or if it doea not, it can be of no vididity, and no other question would then arise. It is only tulien an Act of the Provincial Leyistatiire priina facie falls within one of these classes of sub- jects " that the next question arises ; viz., whether, notwithstanding this is so, the subject of the Act does not also fall within one of the enumerated classes of subjects in sec. 91, and whetlwr or not, (the ratio decidendi of the case), it so falls within the class insect. 91 as to be thereby " over-borne" (mi equivalent for " over-ridden"), by the poiver of the Dominion Parliament'? We will further, hereafter, consider the point with the case from which we take the rule. Mr. Justice HiiNRv's dia^enting judgment, on the validity of the Canada Temperance Act, in which he differs with all the rest T P; CANADIAN CONSTITUTIONAL LAW. 71 r of his brothers of the Supreme Court of Canada, was as fallacious as the judgments of Weldon, Fisher and Wetmore, JJ., in the Supreme Court of N. B. It is observable in Valin v. Langlois, 3 S. C. R. 63, that Mr. Justice Henry in quoting the first clause of sec. 91, entirely omits the important and over-riding closing portion of that clause, and reasons as though it were not there. That, however, in Valin v. Langlois was not important, as the question sis to the right of Parliament arose there, rather under sec. 41, than under the whole of the first clause of sec. 91. In the City of Fredericton v. The Queen, {Ibid., 505), the question was quite otherwise. There the important clause was the opening clause of the 91st section, and, yet, that is absolutely ignored by the learned Judge, and he reasons, ^?'s^, as though that clause had no existence ; and, second, ignoring the first clause, he entirely misstates the efli'ect of the closing clause of sec, 91 . Thus, p. 551, — " We are bound I think, to conclude that in using the general term, (i. e. trade and commerce), it was not intended to reach the subject specifically provided for in sub-section 9 of 92. It was clearly intended to give the licensing power to the Local Legisla- tures, because the section .so plainly and unequivocally so provides; but then it is contended the concluding clause of 91 over-rides the specific provision in sub-section 9 of 92, and virtually ignores it, if the general term as employed in regard to trade and commerce includes the subject-matter." The learned Judge does not assent to the correctness of that view; and, yet, in Valin v. Langlois, without considering at all the "over-bearing," "over-riding,'' "over-ruling" effect of the closing part of the first clause of section 91, particularly in connection with the closing clause of that section, Mr. Justice Henry laid down the principle more correctly, (p. 62), and so as to include the point involved in the Canada Temperance Act Case; thus, — " There is but a small minority of the subjects given ex- pressly to the Dominion Parliament that do not affect 'civil rights within the Province,' and its ivhole legislation in respect of them is clearly an autliorized invadon of the poioers 'jf local legislation con- ferred by the general term, ' civil rights in the Province.' The whole purview of the Act, with a proper consideration of the subjects, is evidence of the policy to limit load legislation to those ' dml rights in the Province' not included specially or oilierwise in the powers given to the Dominion Parliament." 72 CANADIAN CONSTITUTIONAT. LAW. 11 But, in the applimtion of the above, within its fair meaning, it is submitted that the learned Judge went too far in limiting tlie legi^Uiiive jwwer of the Provinces, with respect to a subject-matter that may oome within one of the more general, or larger, Hubjeots- matter given to I\'irliameiit. For as, as has Vjeen shown, it may be within the power of the Local Legislatures to legislate with respect to subjects- matter in the 92nd section, that may be perfectly good ; and yet such legislation may bo " over-borne " or '* over-ridden " by the subse(|Uent legislation of Parliament on the wider subject-matter. The learned Judge indeed .^eems to have discovered his mistake in too f/reatly limilinf/ the legir^lative power of the Local Legis- latures, and not seeing his way out of it otherwise, came to another wrong conclusion ; thus, (p. 547), — " If there be not concurrent legislative powers, and the Act, (i> c. the Canada Temperan(!e Act), is intra vires, then the necessary conclusion is, tliat all the local legislation on the subject of shop, saloon, tavern, and auctioneers' licenses since the 1st of July, 1867, has been ultra vires.'' Thus, jumping from extreme error to extreme error, on the princii)le that "extremes produce extremes," the learned JUDQE involves himself in another absurdity in suggesting the following fancied difficulty : — " Under such circumstances," he adds, " it would be interest- ing to enquire, where there is any law in force restraining the sale of spirituous liquors in counties or cities which have not adopted the Canada Temperance Act, 1878." See this point, incidently considered by Loud Selborne, in L'Union St. Jacques de Montreal v. Belisle, and by Ai.LEN, C. J., Ex parte Ellis, cited supra. It is matter, also, that is covered by the Hrst of the questions we stated, at the outset of this discussion, and which we propose to make the cases we are citing, and the reasoning from them, answer, with the other questions proposed. We will then show, clearly, how Mr. Justice Henry has again erred. We have now to consider the Canada Temperance Act Case before the JUIHCIAL COMMITTEE OF THE PRIVY COUNCIIi, where it appears nom. Russell v. The Queen, 7 App. Casj 829. The judgment of the Supreme Court was affirmed, holding that the Act was " within the legislative competency of the Dominion Parliament.'' The Privy Council also held ''That the objects and scojje of the Act are general, viz. to promote temperance by means CANADIAN CONBTITaTIONAL LAW. 7» of a uniform law throughout the Dominion, and relate to the peace, order and good, government of Canada, and not to the class of subjects ' property and civil rights.' " > Mr. Benjamin, in this case, (claimed that the Local Legisla- tures had exclusive power to raise money by licenses, and that the Dominion could not interfere therewith by legislating with regard to the commodities which an; the subject of licenses. That it was a local matter. That it was also within sec. 13 as to property and civil rights in the Province. The respondent's counsel were, — from the view taken by their Ldruships, — beard only in reference to sub-section 16, " Matters of a local or private nature in the Province." The respondent's counsel contended that " If a matter can only affect the particular locality, directly or indirectly, then it is left to local legislation." That, " If, on the other hand, such private or local matter falls within any of the subjects enumerated in sect. 91, proviiKsial legislation cannot deal with it." The learned counsel also took the position that the case came within the words " regulation of trade and commerce" and also within "Criminal Law." The position was also taken, as was held by the Supreme Court of Canada, that if it came within either of the clauses in sec. 91, it was immaterial if it did come also within one or more of the clauses in sec. 92 ; as these were " over-borne ;" but, as from the view taken by the Privy Council, this did not become material, the counsel were not reportei>ii5 "-H^ \'-^\Vj'i-- _.,^ Next, the question came before the Supreme Court of Canada j ! and there it was again virtually con(;eded all around that the Act was— as, in fact, cainiot seriously be denied — a direct interference with the different sub-sections named ; but, it was there held, Henry J., only, dissenting, that this was immaterial, inasmuch as CANADIAN OONSTTTUTIONAL LAW. 75 the Act, coming jilso within the second (ilaiise of the OIhI sec., " over-rode," or " over-bore" tlie h)cal right in the LegiHiatures. *■ But, before the Judicial (/ommittee of the Privy Council, the matter is made, by that eminent body, to aHuumean entirely difller- ent aspect. And to make the doctrine, which, in thin case — and the very imi)ortant doctrine, too, that it is, — sufficiently clear; and to show the transparent noiiHense in which political writers and speakers, have, recently, been indulging in the matter, who have failed to appreciate recent IVivy Council decisions, we will now give a new reading to a portion of the first clause of section 91 of the Act. This, then, without any reference to the important clos- ing part of the clause, which we have previously examine " The effect of the Act when brought into force in any county or town within the ]Joniinion, is, describing it generally, to prohibit the sale of intoxicating liquors, except in wholesale quantitiea, or for certain specified purposes, to regulate the traffic! in the excepted cases, and to make sales of liquor in violation of the prohibition and regulations contained in the Act, criminal offences, punishable by fine, and for the third or subsequent otfence by imprisonment." Here, then, it is clearly shown, that if this Act, resulting in such conse(juences, as named, is sustained, then is established the right of Parliament to pass such an Act, the consecpiences of which, as above shown, will be to interfere with property and civil rights, in, and connected with, spirituou.-j li(iuors and their sale, in the Provinces ; with the granting of shop, saloon and tavern licenses for the sale of spirituous liquors; and with all such local, private, or municipal rights and powers as are connected with spirituous licpiors and their sale in the Provinces. So detOaring such Act valid, then, shows a right and power to legislate by Parliament in that and in all analog, s cases, so as to interfere with, ** over-ride," " over-bear," and " exclude" the legislation of the Provinces in respect to the subjects-matter of the Act as far as they are there legislated upon; notwithstanding the subordinate powers given to the I^ocal Legislatures in respect to the matters named in the dif- ferent classes of sec. 92 ; — these all, as far as they are involved in the fair construction of the Act, being over-ridden, over-borne, and excluded by such Parliamentary Act, affecting them. .imw-.> The principles upon which this important result is reached — • a result by the w^ay, of which a large portion of the iijtelligent public of C'anada, seem not to have at all apprehended — are just as in our introductory remarks to this case, we have stated them ; applied there, though, observe, as in the Parsons Case, to test the validity of an Act of the Local Legislature. His Lordship, refeiring to the rules, (which, in order to meet and dispose of some CANADIAN CONHTITirrroNAI. LAW. n vioiona rules of onr .Iudgkh, relative to ihe validity of Acta of the Local Ji»'giHlaturo8, we have, somewhat in untioipution of our examination of the cawe, already stated), laid down in tho ParHoiia InHuranoe Case, savH, — '« " According to the principle of (Kinstruction then pointed out, the firHt (jueHtion to l)e determiiKid in, wkctkcr the Act now in quention falls within any of the cla.sHe!s of subjecitH enumerated in section 92, and assigned exclusively to the Legislatures of the Provinces. Ip it does, then the kitrthkii (jukstion would ARISE, viz. WHETHER I'HK 81JH.IK(;T OF THE ACT DOEH NOT FALL WITHIN ONE OP THP KNUMERATED (JLAaSES OF filTll.lK<'rs IN SECT. 91, AND 80 DOES NOT STIM, BKF.ONO TO THE Df)MINION PARLIA- MENT. But, if the Act dom not fdll toitkin any of the daHne» of mhjcctH in sect. 92, no fuhtheu qitkhtion will remain, for it cannot be contenfhd, and indeed tuaa not contended at their LordHhipa' bar, that, if the Act dom not comf. within one of the cla8Hen of sUjbjeot» ansi(jned, to the- Provincial LegidatiireH, the Parliament of Ca^iada had not, bij itn general power ' to 'make laws, for tlie 'peace, order and (food gouern/ment of Canada,^ PULL LEGISLATIVK AUTHORITY to PASS IT.'' ' "' \j-*%V>-' M His Lordship, then, after thus laying down these important doctrines, names the three different classes of subjects in the 92nd section of the Act, in conse((uence of the exi.stence of which it has been so strongly claimed in this Dominion that the Act was ultra virea, as being an interference with the right of (lie Legittlatures to leg- islate with respect to the Hubjecls-rnaMer named in those classes; namely the 9th, L'Jth and 16th; and then proceeds to show — nol tlmt the Act is not an interferenoe with those suljjects-matter, for the ver'y contrary is shown — but that the Act in question does not " fall within" either of those sub-sections ; i. e., is not such an Ad as would be ivithin the competency of the Local Legislature to pass tinder eitJicr of the said sub-sections. It is then shown that it does not come within, {it interferes with, p'dty clearly, and breaks it down and " over rides " it), the clause re- lating to licenses, as follows, — " The Act in question is not a fiscal law ; it is not a law for raising revenue ;' (the 9th class is " licenses in order to the raising of a revenue") ; on the contrary, the efed of it rriay be to destroy or diminish remnue; indeed it was a main objection to the Act that in the City of Frederiction it did in fad diminish the' sources of municipal revenue. It is evident, therefore, that the matter of the 78 CANADIAN CONSTITUTIONAL LAW. I Ad is not within the clems of subject No, 9, and consequently tliat it could not have been passed by the Provincial Legislature by virtue of any authority conferred upon it by iliaJt svJ)-section." Attention is also directed to the fact that the power of grant- ing licenses is not assigned to the Provincial Legislatures for the purpose of regulating trade, a*?, it is thus conceded, the Canada Temperance Act is such an Act, (contrary to the very strong contesta- tion of Judge Henry, and of all the Judges of the Supreme Court of N. B. in Ex parte Grieves), but, " in order to the raising of a revenue for provincial, local or muncipal purpose?." The next paragraph, so fully deals with the question, and lays down such important principles, that we insert it entire ; thus, — " It appears that by statutes of the Province of New Bruns- wick, authority has been conferred upon the municipality of Fredericton to raise money for municipal purposes by granting licenses of the nature of those described in No. 9 of Sect. 92, and that licenses granted to taverns for the sale of intoxicating liquors were a profitable source of revenue to the municipality. It was contended by the appellant's counsel, and it was tfieir main argu- ment on this part of the case, that tlie, Temperance, Act interfered prejudicially with the traffic from vihich this revenue was derived, and thus invaded a subject assigned exclusively to the Provincial Legisla- ture. But, supposing the effect of the Act to be prejudicial to the revenue derived by the municipality from license, it does not fol- low that the Dominion Parliament, might not pass it by virtue of the general authority to make laws for the peace, order and good government of Canada. Assuming that the matter of tlie Act does fall within tlie class of subject described in No. 9, tliai sub-section cnn in no way interfere with the general authority of the Parliament U- deal with Vmt matter. If the argument of the appellant that the power given to the Provincial Legislatures to raise a revenue by licenses prevents the Dominion from legislating with regard to any article or commodity which was or might be covered by such licenses, were to prevail, the consequence would be that laws which might be necessary for the public good or the public safety would not be enacted at all. Suppose it were deemed to be necessary or expedient for the national safety, or for political reasons, to pro- hibit the sale of arms, or the carrying of arms, it could not be con- tended . hat a Provincial Legislature would have authority, by virtue of sub-section 9, (which alone is now under disctissiou), to pass any such law, uor, if the appellant's argument wes-e to prevail. t >^. l ¥ ;*,< u CANADIAN CONSTITUTIONAL LAW. n would th6 Dominion Parliament be competent to pass it, since such a law would interfere prejudically with the revenue derived from licenses granted under the authority of the Provincial Legislatures for tho sale or the carrying of arms. Their Lordships think that the right construction of the enactments does not lead to any such inconvenient consequences. It appears to them tluit legislation of the kind refeiTed to, though it miglU interfere with the sale or use of an article included in a license granted under suh-sedion 9, is not in iiself legislation upon or within the subject of that sub-secUon, and consequently is not by reasmi of it taken out of the general power of the Parliament of the Dominion. It is to be observed that the ex- press provision of the Act in question that no license shall avail to rendei i gal any act done in violation of it, is only the expression, inserted probably from abundant caution, of luhat loould be ne- cessarily implied from the legislation itself, a.ssuraing it to be valid." '!(' Their Lordships next show that no matter how much the Act may interfere with property and civil rights, inasmutih as the Act in question could not have been passed by the Local Legis- latures within the proper meanin<^ of those terms, as used in sub- section 13. the Act is within the jurisdiction of Parliament ; concluding tneir argument on this point, thus, — "Few, if any, laws could be made by Parliament for the peace, order and good government of Canada, which did not in some incidental vi ay, affect property and civil rights ; and it could not have been intended, when assuring to the Provinces exclusive legislative authority on the subjects of property and civil rights, to exclude the Parliament from the exercise of this general power whenever any such incidental interference would result from it. The true nature and character of the legislation in the particular instance under consideration, must always be determined, in 01'der to ascertain the class of subject to which it really belongs.^' The last sentence of the above has a direct bearing on the correct judgment of the Supreme Court of Canada in the Fisheries Case ; which, like the Mercer Escheat Case, as we have shown, has been entirely misapprehended ; the principles on which these cases were decided being simple in the extreme ; and in no way, whatever, breaking down and affecting the rule given in the latter part of the first clause of .sect. 91, that, in cases of conflict between the powers of Parliament and of the Local Legislatures, respecting the bona Jide legislating upon the subjects enumerated in sees. 91 80 CANADIAN CONSTITUTIONAL LAW. and 92, respectively, the powers of Parliament over-ride ; and, as far as may be neoeasary in the particular case, break down the powers of the Local Legislatures with respect to the matters named in sec. 92, that may be aftiscted by the legislation of Parliament, bona fide, within the classes of subjects enumerated in sec. 91. Russell V. The Queen establishes the additional doctrine that, unlesp the Act of Parliament, in question, for the peace, order and good government of Canada, comes within one or other of the sub- sections of section 92, so that the Act could be p'lssed by the Local Legislatures, by virtue thereof, the Act in question is i7itra vires Parliament, no matter how much it may interfere with or destroy the powers of the Local Legislatures to legislate with respect lo the subjects- matter named in such sub-sections ; just as the (Janada Temperance Aci, as " would be necessarily implied fiom the legislation ilwi'lf," even without it having been expressed in the Act, was he^l, in the ca.se we are examining, to render all the licenses within the purview of the C; lada Temperance Act invalid. In dealing with the question as to whether the A':!t " fdl within," (not interfered with or over-rode), sub-section IG, relative to *' matters of a merely local or private natuio in the Province," and deciding that it did not, it is observed, that, — " It was not, of course, contended for the appellant that the I^egislature of New Brunswick could have passed the Act in question, whicii embraces in its enaotiuents all the Provinces ; nor was it w'mied, with respect to this last contention, that the Par- liament of Canada might have -passed an Act of the natare of tliat under discussion to take effect at the same time throughouU the whole Dominion." :> • liut it wtis, " of course," as we have seen, very strongly con- tended in this Dominion, that Purliament could not pa.ss " an Act of the nature of that under discussion to take effect at the same time throughout the whole Dominion ;" and one of the grounds upon which this .strong contention was based, was, that such an Act would interfere with the right of the Local Legislatures with respect to matters of a merely local or private nature in the Pro^ vintses. A good deal has been made of tl>e statement by the Judicial Committee of the Privy Council, that the case of Russell v. The Queen has been misunderstood. It is quite obvious, that, in one direction, it has been egregiously misunderstood. Why, to this very day, it is argued, just as was held by the majority of the Judges in the Supreme Court of New Brunswick, on this same CANADIAN CONSTITUTIONAL LAW. 81 (juestioi), and as was urged by counsel in the Supreme Court of Canada, that the Parliament of tiie Dominion cannot pass an Act the effect of which is to interfere with ; to " over-ride," or to " exclude" the legislation of the Local Legislatures ; notwithstand- ing the clear, unequivocal, most extreme holding, on that point, in this same case of Russell v. The Queen. Their Lordshii'S were so entirely unprepared seriously to consider such an absurd position, thi\t it is not surprising that they were a little mystifiedy (we are not now taking the positicm that that whole judgment is unmiti- gatinl nonsense), as to what the contestation really was, of those, VVho, to-day, still claim that the Local Legislatures have an absolutely exclusive power to legislate with respect to all the subjects-matter in section 92 ; and that Parliament has no right or power to interfere, in its legislation, with any of such su^)jects- matter. Why, the opening speech of the Lieut. Gov. of N. 11, and the closing speech of the Lieut. Ocv. of Ontario, at the opening and closing, respectively, of the last session of the Legislatures of those Provinces, were conspicuous for claiming that recent (;ases went to preserve " tJie political autonomy of the Provinces against the dangers ivhich threaten it from Federal encroachments ;" mean- ing thereby, that those cases had established some very different doctrine from that which is embodied in the latter part of the first clause, and in the closing clause of section 91 ; and which now, by the first part of such first clause, is shown, by this case of Russell V. 'The Queen, to be established by it as well. To show in what a very different way their Lordships supposed the contention to be, we give it as stated by themselves. They simply understood the contention to be — " That, at least in the absence of a general law of the Parlia- ment of Canada, the Provinces might have passese really meant, and to be candid, made it somewhat difficult to tell what their Lordships themselves meant. B-it meeting the very moderate view of the contention, as their Lordships viewed it, even that is summarily disposed of in the following observations, — " Their liORDSHlPS cannot concur in this view. The declared object of Parliament in pa.ssing the Act is that there should be uniform legislation in all the Provinces respecting tha traffic in intoxicating liquors, with a view to promote temperance in the Domini(m. Parliament does not treat the promotion of temperance a.s desirable in one Province more than in another, but as desirable everywhere throughout the Dominion. The Act, as soon as it was passed, became a law for the whole Dominion, and the enactments of the first part, relating to the machinery for bringing the second part into force, took effect and might be put in motion at once and everywhere within it. It is true that the prohibitory and penal parts of the Act, arc only to come into force in any county or city upon the adoption cf a petition to that effect by a majority of electors, but this conditional application of these parts of the Act does not convert the Act itself into legislation in relation to a merely local matter. The objects and scope of the legislation are still general, viz., to promote temperance by means of a uniform law throughout the Dominion." Their Lordships conclude as follows, — " Parliament deals with the subject as one of general concern to the Dominion, upon which uniformity of legislation is desirable, and the Parliament alone can so deal ivith it. Th^re is no ground or pretence for saying that the evil or vice struck at by the Act in question is local or exists only in one Province, and that Parliament, under color of general legislation, is dealing with a Provincial matter only. Jt is, therefore, unnecessary to discuss the oonsiderationf: wi:ich a state of circumstances of this kind might present. The present legislation is l.u !_;, .r« . :*^t to apply a remedy to an evil which ic assumed to (''K'i--i 'l.i.,a^:'i '.s he Dominion, and the local option, as it is c;M , nc ;r > i- 'c yI*. (•jecls-raatter enumerated in sec. 91, was v\.^r 84 CANADIAN CONSTITUTIONAL LAW. valid, no matter how much such .'rjislation interfered with, or in- fringed upon, the subjects-matter uained in sec. 92 ; that very re- markable case of Russell v. the Queen, before the Judicial Com- mittee of the Privy Council, establishes the additional doctrine, that, if the subject-matter of the Act do&s not, hoTia fide, coPiie within any of the clauses of section 92, so that the I I ■v ;\ mai"' ) ..hicl 'ec'- ^t^o in ' examine the cases we have not yet 'leicer Escheat case, and the Fisheries caaC, T ch we hr ji'Qined, it is claimed introduce a new rule, or . ; Ae modification o^" he rules under which all the cases we have yet examined, rank themselves ; at least as regards the validity of Acts of the Local Legislatures within the rules we have stated : the one important point established by Russell v. The Queen being that, because such an Act of Parliament, as was there considered, interferes with, or over-rides, or excludes the power of the Local Legislatures with respect to any of the subjects-matter named in sec. 92, it does not thereby come within such section 92, so as to render it even necessary to enquire whether it does not also come within section 91, and still be intra vires Parliament ; unless it be an Act which not only interferes with some of the sub-sections of 92, but which, also, under such sub-sections, might have been enacted by the Local Legislatures. We are done with that Privy Council case for riie present ; but we will return to it again. During the campaign of February, 1882, in St. John, N. B., connected with the Canada Temperance Act, a leading opponent of that Act, the Editor of one of the leading political journals of Canada, published an editorial, prior to the argument of Russell v. The Queon before the Privy Council, in which he asserted that " the tendency of the recent decisions in the Privy Council is adverse to flie constitutionality of the Canada Temperance Act." ft CANADIAN CONSTITUTIONAL LAW. 86 The writer was interviewed by a leading representative of the St. John Sun, as to the correctness of this assertion ; in answer to which he furnished the Sun with an analysis of the cases reported in the L. R's, down to that time, and showed that the assertion was not well founded. About a week after this, under the inspi- ration of the leading counsel in N. B., opposed to the C. T. Act, and quoting liberally from an editorial in the Toronto Olohe, in which it was alleged, that, " in view of what the Privy Council have said, (in the Citizens' Insurance Co. v. Parsons), about Pro- vincial jurisdiction in matters of trade, the fate of the Scott Act, now before them on appeal, is, to say the least of it, rendered somewhat doubtful ; " claimed that the views that the writer had expressed, in the interview named, were not law. In reply to this, the writer furnished the Sun with a strictly accurate analysis of the case of THE citizens' INSURANCE CO. V. PARSONS, and called attention to the fact that that case, in the Privy Council, was but an affirmation of the holding of Sir Wm. Ritchie, in the Supreme Court of Canada, whose generally correct views, in that Court, on matters relating to Constitutional questions, under the B. N. A. Act, it was claimed could not be impugned. Quoting the language of Mr. Justice Tasciiereau in that case, as to the hold- ing of the Privy Council, in Cushing v. Dupuy, as follows, — '•'In that case it was contended by the appellant that the provisions of the Dominion Insolvency Act were ultra vires, because they interfered with property and civil rights, as well as with the pro- cedure in civil matters, all of which aiv. assigned exchisivcily to the Provincial Legislatures by the B. N. A. Act. Bid that conten- tion was disapproved by their Lordshiim ; " — it was cluiiued that, unless the Privy Council reversed their own prpvious judgnjents, the constitutionality of the Canada Temperance Aofc must bo sus- tained ; and to hold otherwise would be to "strike at the root of the groat mass of Dominion legislation and judicial decision since Confederation." In fact, if the views about the "political au- tonomy of the Provinces," that were then fore-shadowed, and which are being so strongly pressed now, were sound, the Parliament, for legislative purposes, vvould be utterly useless. The anticipa- tions of the Toronto Globe, and its contemporary, relative to the rcHult in the Privy Council, as to the validity of the C. T. Act, were, happily, not sustained. if 86 CANADIAN CONSTITUTIONAL LAW. We prcK^ed now to examine this case of The Citizens' Insur- ance Co. V. Parsons, in the Supreme Court of Canada ; 4 S. C. R. 216. There are two other Insurance cases treated with it, both in the Supreme Court of Canada, and in the Privy Council, to all of which we shall refer so far as may be necessary for the purposes of this examination. ' ' The questions decided in these cases were — "n; First, That an Ontario " Fire Insurance Policy Act," passed since Confederation, was not ultra vires, and was applicable to Insurance Companies, (whether foreign or incorporated by the Dominion), licensed to carry on the insurance business throughout Canada, and taking risks on property, situate within the Province of Ontario ; and second, that the legislation on questions, prescrib- ing conditions incidental to insurance contracts, passed in Ontario, relating to property situate in Ontario, was not a regulation of Trade and Commerce within the meaning of these words in sub- sec, 2, sec. 91, B. N. A. Act. From this holding Taschereau and GwYNNE, JJ. dissented. In both of the Courts below — Queen's Bcsnch, and the Court of Appeal — the Ontario Act, in ([uestion, was hold intra vires the Local liOgislature. As the judgment of the Supreme Court of Canada wao sustained by the Privy Council, (thus, the whole four Courts lidding the Act was not ultra vires), with such decisions on the question involved, as we have seen have been so repeatedly delivered by the Supreme Court of Canada and by the Privy Council, it would be a surprise if this case went contra to those decisions; more particularly, as we have seen, the case in the Privy Council of Russell v. The Queen, subsequent to the Parsons Insurance case, in extending the power of Parliament to legislate, and in correspondingly limiting the power of the Legislatures, went farther in opposition to the doctrine that was supposed to have been established in the Insurance cases, than any other case that has preceded it. This last remark is peculiarly correct as applicable to the decisions of the Supreme Court of Canada. If, in this last named Court, the decision had been given on the grounds taken in the case by the Appellants' counsel, (Mr. Mowat, Mr. Bethunc, Mr. Rohinson and Mr. Small), the Toronto Globe would have been ([uitc justified in its expectations that the Canada Temperance Act would have been declared ultra vires ; and not (»nly would that Act have been so declared, but nearly every other Act of Parliament since Confederation would have CANADIAN CONSTITUTIONAL LAW. 87 sliared the same fate ; and Parliament would have been virtually powerlcHS for evil or for good. It must certainly be so apparent to our readers by this time, that the extravagant claims that have been recently ho loudly and conspicuously made in favor of a jurisdiction in the Legislatures which they do not possess, are entirely unfounded, that it seems almost like fighting a shadow to pursue the subject further ; but, as we wish to get at proper, unquestionable answers to the whole of the questions, with which, at the outset of this examination, wo confronted ourselves; we shall make the examination of the questions thoroughly exhaustive, so as to leave no aperture for escape from the conclusions to which we shall simply let the decided cases, and a straight-forward examination of them, bri.ig us; wherever that may be. Certainly, it will not be to sustain any such nonsensical views as were urged for the Respondents in the Supreme Court of Canada, in the cases now before us. It is not, at all, mythical, that such a contention was there made as that to which we have adverted. Thus, the position was distinctly taken by those very promi- nent counsel for the Respondents, that, (p. 2'29), — " The Provincial Legislatures are not in any accurate sense sxihordimde to the Parliament of Canada : each body is independent and sup'enie within the limits of its own jurisdiction; so that even if contracts are considered a kind of commerce, they arc still governed by section 92, t/ie powers in tohich should be read as exceptions to tlu)se conferred upoii Parliament by section 91 P. N. A. Aciy We have, so often, pointed out the utter absurdity of this con- tention,— persisted in, most pertinaciously, to this very day — and the destructive result that it would have upon, virtually, all the powers of Parliament, if the powers on the subjects-matter in sec- tion 92 were " exceptions " to the powers of ParlianK;nt in section 91, that it is unnecessary to go over the same thing here again. They emphasize their altogether absurd position, to make it still more distinct and positive, and say, — " If the Local Legislature has jurisdiction respecting the suhject-watter of InHurancc contracts at all, it has the most fall and ample jurisdiction — plenum imperium — it has sovereign power within its own limits.^' This, in the other direction, is the exact converse of the ecj^ually fallacious holding of the Supreme Court of British Col- umbia, in the Thrasher Case. That the broad and destructive is if I ■.¥, 88 CANAPTAN CONSTITUTIONAL LAW. doctrine that they lay down has not Ijeen better »«tabli.shed than it has been, they simply attribute to the following reason, evidently using the word " Parliament " instead of " Exeeutive : " (p. 230), — '•". " The fact that certain powers have been assumed by Parlia- ment hitherto proves little, for tlie Provinces have not power to disallow those Acts, and can only look to the Courts for defence against the encroachments of the Federal power, whereas Acts passed by the Local Lei^lslatures might be disallowed by the Dominion Parliament." " Looking to the Courts for defence against " Federal enact- ments, would seem to be a very reasonable course to pursue. Looking, as we are doing, " to the Courts," to ascertain whether the legislation named is " encroachment," though, seems to settle the matter, very plainly, in the other direction. It is very certain that the cases we are now examining do not help Mr. 3Iowat and his confreres in establishing their extreme, and extremely unsound, positions. The question in this case, simply was, as affects the matter we are investigating, whether there was any subject-matter under which the legislation of the Parliament came, that would oust the jurisdiction of the Legislatures with reference to the legisla- tion by them, making certain regulations about policies of insur- ance. It was claimed that there was, and that such legislation came within the " Regulation of Trade and Commerce." But the decision simply was that the legislation in question did not come within that subject-matter, and that, being properly within the jurisdiction of the Legislature, there was, therefore, nothing what- ever to oust the jurisdiction. There is not a single well decided authority anywhere that holds any different doctrine. The two well decided cases of Reg. v. McMillan and ex parte Fairbairn, which we have examined, decided years ago in the Supreme Court of New Brunswick, go even farther than those cases we are con- sidering ; because, in those cases, there was no doubt, whatever, that the subjects-matter legislated upon by the N. Ji. Legislature were within a subject-matter that Parliament might have legislated upon. The rule, which we will see, will show what the law is in all such cases, and which we shall evolve from the decideii cases and the reasoning thereon ; will, we trust, when we state it, in due course, accurately "define' the powers of the Legislatures in all such cases. As we have seen in the Fisheries case, that Parliament recog- nized, by the Fishery Act, legal outstanding rights which the Act CANADIAN CONSTITUTIONAL LAW. 89 was not to affoct ; so, Siu Wm. RiT(!HrE show h, in these cases, situilar "recognition and affirmation," by Parliament, "of the powers of the Local Legiwlatures," with respect to the matters disputed iti the oases. The following is one of the sections quoted by the learned Chief Justice, from an Act of Parliament passed as long ago as 18f:8; 31 Vic, ch. 8, sec. 25, thus, (p. 2.35),— ; . i " That the provisions of this Act as to the deposit and Issue of licenses shall not apply to any Insurance Company incorporated by any Act of the Ligislature of the late Province of Canada, or incor|)orated, or to he incorporated, under any Act of any of the Provinces of Ontario, Qiuibec, Nova Seofia or New Brunswick'' (the italics are by Sir Wiujam), "so long as it shall not carry on business in the Dominion beyond the limit h of that Province by the Legislature or Government of which it was incorporated, but it shall be lawful for any such (Jompany tv avail itnelf of the pro- visions of this Act." , Sir Wm. Ritchie, in his judgment, very accurately describes the powers of the two legislative bodies. To show there are powers in the Local Legislatures which Parliament has no right to touch, except in so far as legitimate owt fide legislation within the subjects-matter of section 91, enables them to do so; taking a strictly analogous position in these cases to that wliich the same learn(!d and accomplished I^awyer took in the Fisheries Case, and in the Mercer Escheat. Cusa, referring to sub-sec. 10 of sec. 92, he showed, that, clearly, there were subjects-matter there in the Local Legislatures that Parliament had no right to touch, except so far as might be done by legitinute bona fide legislation on some one or other of the subjects-matter in sec. 91. As, we submit, it is a perfectly accurate statement of the law as it is ; avoiding both the absurd extremes that would either render Parliament utterly incapable of legislating, or else, would deprive the Local Legisla- tures of all power, (" from Scylla to Charybdis"), we give the paragraph entire : — " If the power to legislate on navigation and shipping and trade and commerce, vested in the Dominion Parliament, neces- sarily excluded from Local Legislatures all legislation in connection with the same matters, and that nothing in relation thereto could be held to come under local works and undertakings, or property or civil rights, or generally all matters of a merely local or private nature in the Province, or the incorporation of companies with Provincial objects, what possible necessity could there be for inserting the exception ' other than such as are of the following IMAGE EVALUATION TEST TARGET (MT-3) fe ^ ^ '^ J^t^ ^ . w .v^^ .<$• MP. V t-.^ •^ 1.0 l.f 1.25 If I4£ 1.4 15 Itt 1.6 Photographic Sciences Corporation 33 WEST MA!N STREET WEBSTER, N.Y 14580 (716) 677-4503 ^ ^^ 'O, <^ \\ ^^\. <*f^.> x^ ^ 4s ^ V ' ^ ^ o V 90 CANADIAN CONSTITUTIONAL LAW. smm I 1 f 1 classes as above, (ct. 6. c) ? On the contrary, does not this excep- tion show beyond all doubt, by irresistible inference, that there are matters connected with navigation and shipping, and with trade and commerce, that the Local Legislatures may deal with and not encroach on the general powers belonging to the Dominion Par- liament for the regulation of trade and commerce, and navigation and shipping, as well as ra^ ■ ays, canals and telegraphs ? Can it be successfully contended il . this is not a clear intimation chat the Local Legislatures were to have, and have, power to legislate in reference to lines of steamers and other ships, railways, canals, and other works and undertakings wholly within the Province, subject, NO DO^JBT, to the general power d cf Parliament over shipping and trade and comraerce, and the Dominion lawa enacted under such poLvers, as, for instance, the 31 Vic, ch. G5 (1868), ' An Act respecting the inspection of steamboats, and for the greater safety ot. passengers by them', or the Act 46 Vic, ch. 128, 'An Act relating to Shipping;. ' " There, again, is the law clearly and correctly state learned Chief Justice makes the fol- lowing correct distinctiony applicable to the causes then befoi*e the Court. He adds, — " I do not u^iderstand by the Act now assailed," (the Ontario Insurance Act), " any supreme sovereign legislative power to regu- late and control the business of insurance in Ontario, is claimed. As I read the Act, it deals only with this contract of indemnity; it does not profess to deal with trade and commerce in the sense in which tliese words are used in the British North America Act. It is simply an exercise of the power of the Local Legislature for the protection of property in Ontario, and the civil right of the pro- nrietors thereof in connection therewith, by securing a reasonable and just contract in favor of parties insuring property, real or per- sonal, in Ontario, and deals therefore only with a matter of a looal and private nature." ds CANADIAN CONSTITUTIONAL LAW. f,wii It was really, then, not a case of conflicting legislation at all ; but a clear case of proper legislation by the Local Legislature of Ontario within its unquestionable power, and not in antagonism with any act of Parliament whatever. There is, however, another point alluded to is this judgment; and an extract containing 't will be made in a more suitable place, when we refer to the point of error by Mr. Justice Henry in the City of Fredericton v, Earr ker, and to which we have already made a passing reference, a A '^ , H&4 Mr. Justice Fournier, too, in some parls of the following, is most admirable, while in other parts ^e comes very closely to the law, narticularly as applicable to the facts in the case he was con- sidering. He says, (p. 272), — " In exercising its power, the Federal Parliament, no doubt, has the right to incidently entertain these matters which are under the jurisdiction of the Provinces, but this power cannot extend any further than to what is just and reasonable and necessary in order to legislate for commercial purposes only. The Federal Parliament could not, therefore, under the pretence of legislating on csommerce, entirely control a subject-matter which comes under the jurisdiction of the Provinces. Any legisldion having reference to the regvlation of commerce must he complete, but it need not n£ces8arily destroy the jurisdiction of the Provinces over that part of the subject- matter WHICH IS NOT AFFECTED BY SUCH LEGISLATION. If this was 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 civil rights, it would follow that all legislation over the subject-matter would belong exclusively to the Federal Parliament, and the legislative power of the Provinces over the same matter would cease to exist." The further we go in the investigation of the subject the more surprised we are at the continuance, to this day, of such absurd pasitions as were taken by Mr. Mowat, Mr. Bethune, &c., in this case. If the evidence were not so overwhelming, as a continuous series of such claims shows it to be, that, on the one hand, one set of men are claiming that Parliament has, virtually, no legislative power at all ; while, on the other, there are those of the opposite view, who Vv'ould adopt such rules of construction as would utterly deprive the Legislatures of all their legislative power, we could scarcely credit it that men of high political, and others of equally high judicial, standing, should continuously disseminate views that partake of the character of puerility itself. We will endeavour to CANADIAN CONSTITUTIONAL LAW. It hold the scales of justice, even-handed, between them, and, weigh- ing all ihe different claims, arrive at a correct decision ; and, renaov- ing all of error about those opposing claims, as far as we are able to do 80, no matter by whom made ; set forth, honestly and faith- fully. The Truth ! The learned Judge, (Fournier), proceeding further, has this admirable passage, — " In order to reconcile the exercise of these powers, I have arrived at 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 competent to exercise it, and that the Province can still exercise its povjer over that portion of the svhject-matter over which it has jurisdiction, provided the Provincial legislation does not directly conflict ivith the Federal legislation." And, seeing, as did the learned Chief Justice, (as is also observable in the legislation of Parliament with reference to the Fisheries), that, in this case, also, there is an express recognition and acknowledgment by Parliament, of the right of the Local Legislatures to legislate on the subject-matter of this case, the learned Judge comes to the following conclusion : — i,v«--^ , *' " We find, therefore, that the Federal legislation does not in anywise affect the nature of the contract of insurance, nor the. conditions forming part of such contract, and that the legislation of Ontario, now under consideration, deals exclusively with that subject, — both legislations deriving their respective powers from different sources, the first from the power of regulating trade and commerce, and the other from their power of legislating over property and civil rights. Why, if the provisions of these laws are neither conflicting nor antagonistic to one another, can we not hold that both are constitutiortal ? / must confess that I see between them no conflict, and I see no obstacle to their being carried into operation." Thus, holding that the subject-matter — the legislating as to the conditions of insurance policies by companies doing business in Ontario— did not properly come within the regulation of trade and commerce, as one of the subjects-matter controlled by Parlia- ment, it was obvious that the regulations were simply local in reference to a matter in the Province ; and, thus, expressly, the subject-matter was within the jurisdiction of the Local Legislature. So, thus, applying the rule laid down in this case in the Privy m CANADIAN CONSTITUTIONAL LAW. Council, and repeated by ic, and acted on most effectually and moat radically, in Russell v. The Queen, in reply to the first question, " Is this Act one within the competency of the Local Legislature, under any of the subjects-matter in sec. 9S ?" the answer is, — *' It is." And, then, putting the second question, — " Does it also come within either of the clauses of sec. 91, so as to over-bear or over- ride the power of the Local Legislature to pass it ? " and the reply is, " It does not." The case, under the discussion, is, clearly, found to be rightly decided under the tests furnished by the Judicial Committee of the Privy Council. More of these " tests " again, under a somewhat different view, and under what might be called a new inspiration. Mr. Justice Henry agrees with the learned Chief Justice and Mr, Justice Fouknier in the result to which they arrive, that the A'jt in question was intra vires the Ontario Legislature. But, having previously, incorrectly, held — standing alone in the Court in so doing — that the Canada Temperance Act was uUra vires Par- liament, while, as a necessary consequence to such holding, there would be no escape for him from holding that the converse was, from his point of view, equally true; and that he would, therefore, necessarily hold that the Ontario Act was intra vires the Local Legislature ; but, even in holding right, as he does so only as , the result of an error in reasoning, we cannot expect to find his reasoning in this case, even, sound. Nor do we so. Take the fol- lowing. After stating, — "As I have before said, we must construe the whole Act together, and so to give effect, if possible, to every part of it, and reconcile, and ascertain what seeming contradictions the British Act contains ; " the learned Judge argues thus errone- ously : — *' From the peculiar distribution of the legislative powers," he proceeds to sa}'^, "and the mode adopted, it was a difiScult under- taking to legislate so as to prevent difficulties arising, but they are to be properly resolved only by keeping prominently in view the leading objects intended to be provided for. Looking only at number 26 in the list contained in section 92, we find ' The sol- emnization of marriage in the Province ' is expressly given to the Local Legislatures. No doubt can be entertained that, consider- ing both provisions," (the italics are his own), "notwithstanding any other provision of the Act, the intention was to give the solemni- zation of marriage to the Local Legislatures. I admit that the two cases are not exactly alike, but still it shows that no one part of the Act should alone be looked at." CANADIAN CONSTITUTIONAL LAW. 95 " marriage," ■^•An-^hAB intimated by us before, these two subjects of and "solemnization of marriage in the Province," contained, re- spectively, in the 91st and 92nd sections of the Act, have been a great stumbling block in the way of learne CANADIAN CONSTITUTIONAL LAW. 97 y lation of the Local Legislatures, with respect lo Property and Civil Aiglits ; or to Property or Civil Rights ; or to matters of a merely local or private nature iu the Province ; or to any other of the subordinate, inferior, subjects-matter enumerated in section 92. Now, next, apply to the case we have assumed, the very much stronger answers to the tests in favor of the dominant legislative power of Parliament, as furnished by the Judicial Committee of the Privy Council in the case we are now examining, and com- menting on ; and as applied by thet)i in the case of Russell v. The Queen, as we have seen was done ; and ask the same question with reference to the supposed Act on marriage, for the Dominion, with, as an incident in it, legislation on the ''solemnization of marriage," such as we have named; as was asked by the Judicial Committee of the Privy Council with respect to the Canada Temperance Act. Thus, using the very language of the Privy Council, — "does the act now in question fall WITHIN any of the classes of subjects enumerated in section 92, aad assigned exclusively to the Legislatures of the Pro- vinces ?" Answering the question, then, as was answered by the Privy Council, In Russell »', The Queen, where an Act regulating Trade and Commerce in the Dominion, in spirituous liquors, which directly interfered with property and civil rights in the Provinces ; with the right to grant licenses for local purposes ; and with local and private matters in the Province, was, notwithstanding all this, decided not to be an Act which "fell within any of the classes of subjects enumerated in section 92, and assigned exclusively to the Legislatures of the Provinces ;" the answer, in the assumeil case of legislation by Parliament on marriage, which has, as an incident, legislation on the solemnization of marriage, is, that it is not an Act that "falls within any of the classes of subjects enumerated in section 92, and assigned exclusively to the Legislatures of the Provinces." Then, the language, further, by the Privy Council, is as applicable to the assumed case as to the other, and to all otiier cases on the question ; for the rules or canons of construction which they lay down, are "hard and fast rules or canons," whether right or wrong, which are generally applicable, and which, on such high authority, are the tests which are to be applied to the cases as they arise. Such language is as follows, — " If it does, then the further question would arise, viz, whether the subject of the Act does not fall within one of the eiMmerated classes of subjects in sec. 91, and so does not still belong to the Dominion • a r>rl# CANADIAN CONSTITUTIONAL LAW. Parliament But, if the Act does not fall v/ithin any of tfie classes of subjects in sec. 92, no further question will remain, for it cannot be contended, and iudeed was not contended at their Lordships' bar, that, if the Act doeH not come within one of the classes of subjects assigned to the Provincial Legislatures, the Parliament of Canada had not, by its general power ' to make laws for the peace, order and good government of Canada,' full legis- lative authority to pass it," (Supra). iiysiw »'T/j^iti««'rT'i» Passing on, we find, that, as Mr. Justice Henry has entirely misapprehended the meaning of the B. N. A. Act, the whole of his argument is bad. And, although his vicious reasoning, from the Act, does not, necessarily, in this case, prevent him from agreeing with the decision, correctly arrived at by his learned colleagues, the Chief Justice and Mr. Justice Fournier; as it caused him to differ with the judgment correctly arrived at, of all his colleagues, in The City of Fredericton v. Barker, yet his judgment is no better in this case, than in that, rw^n, .«^» Miifj wir Simply wishing to deal, fearlessly and faithfully, with the questions we are examining, with the view of getting at the truth, and the whole truth, whether the effect be to exalt the judgments o{ Sir Wm. Ritchie, delivered in the Supreme Court of Canada, with the almost total exemption which they present to fairly hostile criticism ; or, relatively, to put some other Judges, who have dabbled in a question so far beyond their power as analysts, in a perfectly fair position, is no affair of ours. Claiming the right of fair criticism, and unhesitatingly exercising that right, we shall simply treat the arguments of those with whom we come in contact in our examination of this question, as though we were fairly criticising a book without the remotest conception in the world as to who might be its author : — " Nothing extenuating, nor setting down aught in malice !" We will, thus, give one short clause more, from the judgment of the same learned Judge, Mr. Justice Henry: (p. 287), — " I have no doubt," says the learned Judge, " that the Dominion Parliament has power to enact general regulations in regard to trade and commerce, but not to interfere with the powers of the Local Legislatures in the matter of local contracts, amongst which is properly included policies of insurance against loss by fire on property in the same Province." The only ground upon which Mr. Justice Henry would con- tend that the Dominion Parliament, in enacting " general regula- CANADIAN CONSTITUTIONAL LAW. i<» M iv'tions in regard to trade and commerce," cannot "interfere with the ..powers of the Local Legislatures" as above, is because such local V powers aro included in either the civil rights or heal or private J mattera reserved to the Local Legislatures — " exclusively," if, in '> tlie sense in which the word is used, you chcose to call it so, — by ^ the 92nd section of the B. N. A. Act. This, as the whole Dominion ' knows, has so often been contende nection with which consists in legislating upon property and civil k' rights; or, on property or civil rights. There we leave, in all ^' courtesy, Mr. Justice Henry and that other quite large class of ^'Judges, whose "reasoning" has been like his; with the class of 9 errors of which they have been the unhappy exponents in connection ->with this question. Turning now to the dissenting judgments of the learned ^ Judges Taschereau and Gwynne, who, with Sir Wm. Ritchie, have a much clearer apprehension of the meaning of the B. N. A. Act than Mr. Justice Henry; but, yet, who, unlike the learned 5 Chief Justice, run their comparatively correct view of the Act to too great an extreme ; and, in consequence thereof, whil6 giving ^ correct decisions in all such cases as the Canada Temperance Act case; in all such cases as the case we are considering ; the Mercer Escheat case, &c., the tendency of their view.* is to lead them to a wrong decision. It is our design honestly to sift their views, so as to get clear of the chaff of error, and leave us the grain of truth. For, 100 CANADIAN 00N8TITUTI0NAL LAW. in another senw, there w a grain of truth even in the worst judg- ment of the worst Judge of the worst Court. 4 Nearly the whole of the judgments of these learned Judges, in this case, are fairly over-flowing with error. Take one or two ex- rficts from the judgment of Mr. Justice TASf'HEREAU, which we, preserving the spirit of the judgment, make as short as possible : — " For it must be admitted," says the learned Judge, " that under the B. N. A. Act, there can he no concurrent jtii-iadidion in the matter between the Federal and the local legislative authori- ties." P. 294. i f'j;. V And again, p. 306, — "Either the Federal Parliament hoA no control at all over Tnmranee Companies, or it has it supreme, entire and ixcliisive." The meaning running through all this, is, that with respect to the same subject? matter, there cannot be legislation by both legis- lative bodies ; each, it is claimed, having the " exclusive " right to legislate with respect to the subjecte-matter committed to it ; each, with respect to those, being " supreme, entire and exclusive." If, therefore, the one body can legislate with reference to Insurance Companies; the other cannot. This is a fair summary of Mr. Justice Taschereau's judgment, outside of those portions of it in which the le^-'ned Judge shows, correctly, — as he really does show it in parts of his judgment — the nature ard extent of the power of Parliament to legislate ; and in other portions, as on page 210, he too greatly limits the Federal power. But, aside of these, his idea that on subjects-matter over which either has legislative power, there can be no "concurrent jurisdiction," as he terms it; meaning that the two bodies cannot legislate eifectually on the same subject-mat- ter, is an obvious error, which we have pointed out, over and over again. Parliament, legislating within its power in reference to the subject of shipping, can affect ships. The Local Legislature, not interfering with such legislation as Parliament has effectually had on the same subject-matter, ships ; can, within its power, legislate on Property; and, in such legislation, can, within its power, affect the same subject-matter, ships. 80, as we have shown, &r, regards the subjects of trade and commerce and licenses. These instances show that the grounds taken by the learned Judge, against each of the legislative bodies being able to legislate, for the reasons alleged, on matters connected with Insurance Com- panies, was, then, clearly wrong. And the express recognition ' Parliament in its Act, of the existence of a kind of concurrent r' *-. CANADIAN OONHTITUTIONAt LAW.' 101 1 kgislation existing betwoeu both legislative bodies, an also, as w« have seen, was the case with the Fisheries Act of Parliament, was penectly correct ; notwithstanding the very strong denial of Mr. Justice Taschereau of the possibility of any such legislative power being in both bodies, and his view of the wortlilessne* of such Parliamentary admissions. See Ibid,, p. 317. The learned Judge, Mr, Justice Gwynne, argues, in his judg- ment, in the same way that Mr. Justice Taschgbeau bae argu^ in some parts of his. Thus, (p. 329), — " It it clear that the subject-matter of the Act in question is not one over which jurisdiction is by the B. N. A. Act giveri cor.- currently to the Provincial Legislatures and to the A^arliament. If it were, no doubt the Act would be valid as long and so far only, as it is not repugnant to any Act of the Parliament of Canada. The subject not being one over which jurisdiction is given to the Provincial Legislatures and to the Parliament, must be placed exclusively either under the one or the other." Here, again, is the too greatly straining of the rule that the exclusive power is in Parliament to legifclate on all the subjects- matter named in sec. 91. While it is pei'fectlv true in a qualified sense that the " exclusive" power is given to Parliament to legislate on the subjects-matter named in that section ; yet, it is equally true, that, in its broadest sense, several of the subjects- matter named in sec. 92, on which the Local Legislatures can legislate, are directly, within subjects-matter in sec. 91 ; as instance, as before named, solemnization of marriage as within the wide subject oi marriage ; and the granting of shop, saloon, tavern, auctioneer ao^ other licenses, as within the wide subject of trade. This, neces- aariiy, — and therefore it is not at all singular that it should do BO, — involves a conflict between the two legislative bodies ; and such conflict, when it does occur, is expressly provided for in the Act Thus, the Local Legislatures can, under the Act, bona fide legislate as to licenses, and, although, in one sense, that is legislat- ing on a trade matter ; y3t, to that extent, bona fide, they can do so. So, also, in reference to solemnization of marriage in the Province, though that is a subject clearly within the wider subject of marriage. But, while the Local Legislatures can legislate on all the subjects-matter in section 92, within the legitimate scope of those subjects-matter, and not farther within the subjects-matter in sec. 91 than is necessarily involved in legislating alone on the subjects-matter in sec. 92 ; as for instance in legislating as to 102 CANADIAN CONSTITUTIONAL LAW; a' i: solemnization of marriage, yet no farther than that on the snbject of marriage ; on licenses; >. Parsons can be recon- ciled. From the point of view of the learned Jqdge in the matter it would be as difficult for him to rect;nf' THE PRIVY COUNCIL BOARD. The case containing the same question that was so largely discussed in the Court below, and with reference to which, as we have seen,' the Court stood three to two, came before the Judicial Conimittvee of the Privy Council, and is reported in 7 App. Cas. 96. That learned body hold, with the learned Chief Justice and Justices FouRNiER and Henry, that the Ontario Act was' aot ultra vires the Local Legislature, ou, substantially, the same lead- ing ground upon which it was decided in the Court below, namely :-^ That the legislation in question was within the clause in secti>)n 92, covering property and civil rights ; and, therefore, was within thb power of the Local Legislature ; and the Act in question that was passed with reference to conditions in policies issued by Insurancj Companies, was not within the meaning of the terms, " regulation t04 CANADIAN CONSTITUTIONAL LAW. ■i: •£■' of trade and conmerce," in the 9l8t section ; and, therefore, the legislation was not ousted by any power given to Parliament, nnder the clauses of the 91st section of the Act ; and that there was no conflict between the Act in question, and the Insurance Act of Parliament, which expressly recognised in the Local Jjcgisla- tures the power of legislating with reference to Insurance Com- panies. In both of these points there is a perfect analogy between this case, and that of Robertson v. The Queen, (The Fisheries case), that was decided in the Supreme Court of Canada. So, this case in the Privy Council is an affirmation of the holding of the Supreme Court of Canada, not only in this case, but in the Fish- eries case as v.ell ; the point in each case being that it is always a question of construction, the same as in numerous other statutes, as to whether a subject-matter is within certain language or not. The same point, exactly, was involved in several of the earlier cases we have examined ; some of which were decided in the Supreme Court of N. B. ; and some by the Privy Council. The question in this class of cases is not, then, what shall be done when there is a contlict in the legislation between the two bodies, by the legislation being in respect to, or affecting a matter with reference to which each of the bodies has legislative power ; as was the case in Russell v. The Queen ; Cushing v. Dupuy, and in a number of other cases ; but, rather, whether the subject-matter comes within one or the other of certain clauses, or not. Hence, reasoning in a case, — where the question involved was not one of legislation in which conflicting rights clearly existed, as between insolvency and procedure in courts ; between trade and commerce and the right to grant licenses ; to legislate as to property and civil rights, or as to matters of a merely local or private nature in the Province j but, only on the question, for instance, whether the right in the pro- perty of a fishery was vested in the Dominion by virtue of its right to legislate on the subject of the "Fisheries;" or whether l^islation on the narrow subject as to the contents of conditions in Insurance Policies in the particular Province legislating, was within the proper meaning of the terra "the regulation of trade I 1 CANADIAN CONSTITUTIONAL LAW. 105 i i y very able lawyer, Lord Selborne, (formerly Sir Roundell Palmer), delivered the judgmert, as he did in some of the earlier cases that we examined, — that led writers for political papers, and others of a similar line of thought, improperly to come to the con- clusion that the ratio decidendi of The Citizens' Insurance Co. v. Parsons warranted them in coming to the conclusion that in Russell V. The Queen, it would be decided that the Canada Temperance Act was ultra vires Parliament. That it was not so decided, but a really more extreme rule being there adopted than had been appHed by the Supreme Court of Canada in any case ther^ decided, showed that the reasoning from the Insurance case, that led to the predic- tions we have named, was wrong. It is perfectly correct in the class of cases that we are now examining, as we have claimed from the outset, that, when such questions arise, they have to be considered on their individual merits ; and, that, giving a proper construction to the words " trade and commerce," as has been done in this class of cases, is not, by any means, to hold, as we have seen some of the learned Judges have done repeatedly, because, in case of conflict between the subjects-matter bona fide within the clauses in sec. 91 being so legitimately legislated upon by Parliament, though coming in con- tact with subjects-matter in sec. 92, that, in such case, these latter must yield, so far as they are included in, or are covered or affected by such legitimate legislation within the scope of the subjects-mat ter in sec. 91 ; that, thersfore, every Act that the Local Legislature may pass must necessarily come within one or the other of the powers of Parliament. In simple fairness, and not, by any means, either as an invidious distinction, or servilely, we would suggest, that, in a thoroughly honest study we have made of the cases during the in- vestigation into which we have gone, we have found, as far as we have been capable of judging, that the learned Chief Justice of the Supreme Court of Canada, has, in all his judgments in that Court, on the two different classes of cases named, down to the Cacada Temperance Act case, inclusive, invariably drawn the right distinction ; and, we think, that, in all of such cases as have gone to the Privy Council, down to that case inclusive, the judgments of that very able lawyer have never been over-ruled ; whether, in the Court below, he was with the minority or the majority. Unless, in the study of this case, as decided in the Privy Council, the point on which we have laid so much stress is con- stantly kept in view; viz., the particular class of cases within which 106 CANADIAN CONSTITUTION AI. LAW. I ! this case falls, the reasoning is well calculated to mislead. And, it is not at all surprising, applying the reasoning used with reference to one of the classes of cases we have named, to the other entirely different class to which the reasoning was not intended to apply, that the Toronto Globe and its confreres were led to the incorrect conclu- sions, as to its far reaching consequences, which they had formed. It is like the case, for instance, of taking Sir Wm. Ritchie's reason- ing in such cases as the Canada Temperance Act case, against what we can only truthfully designate as the " absurdities" of the majority of the Judges of the Supreme Court of N. B., and of Mr. Justice Henry; and, then, taking his judgments in such cases, as, — from these learned Judges going too far in depriving the Local Legislatures of power, where there is really no conflict, — he is re- sisting the reasoning of the learned Justices Taschereau and GwYNNE; and, fancying, as did these learned Judges, that the one course was antagonistic to the other. They were entirely different cases, and involved, necessarily, different, but not antagonistic, treat- ment ; because there was a difference, but no antagonism, between the cases. Had the Insurance case followed, instead of having preceded the Canada Temperance Act case, many not bad lawyers, as the phrase goes, would have thought the latter was over-ruled. •*-*. To bring out the points as we have named them, as involved : in the case, would necessitate our setting out nearly the whole , judgment, and that might be found tiresome. One paragraph we will give, for two reasons ; one for the purpose of showing that the next very lengthy paragraph, while containing perfectly sound reasoning as applicable to the case itself; would be entirely wrong, if applied, — as it was not intended to be applied — to the very different class of cases covered by Regina v. The Justices of Kings, in the Supreme Court of N. B., under Ritchie, C. J. ; by Cushing v. Dupuy, in thePrivy Council ; ■ and by the Canada Temperance Act case, in the Supreme Court '^^ Canada, and before our highest Appellate Court as well. ^e other reason, is to show, by a very palpable inaccuracy at the close of the paragraph, that the judgment was not as carefully delivered as it would have been had it been delivered, by, &U instance, Lord Selborne. *. >- The paragraph, in whole, is as follows, (p. 107) :— - " The scheme of this legislation, as expressed in the first branch of sect. 91, is to give ro the Dominion Parliament authority to make laws for the good government of Canada in all matters CANADIAN CONSTITUTIONAL LAW. 107 not ooming within the class of subjects assigned exclusively to the Provincial Legislature. If the Olst section had stopped here, and if the classes of subjects enumerated in section 92 had been altogether distinct and different from those in sect. 91, no contiict of legislative authority could have arisen. The Provincial Legis- latures would have had exclusive legislative power over the sixteen classes of subjects assigned to them, and the Dominion Parliament exclusive power over all other matters relating to the good government of Canada. But it must have been foreseen," (that it was " foreseen," we have seen by the statement we have quoted, from Lord Carnarvon's remarks in the House of Lords), " that this sharp and definite distinction had not been and could not be attained, and that some of the classes assigned to *he Provincial Legislatures unavoidably ran into and were embraced by some of the enumerated classes of subjects in sect. 91 ; hence an endeavor appears to have been made to provide for the cases of apparent conflict ; and it would seem that with this object it was declared in the second branch of the 91st section, 'for greater certainty, but not so as to restrict the generality of the foregoing terms of this section,' that, (notwithstanding anything in the Act), the exclusive legislative authority of the Parliament of Canada should extend to all matters coming within the classes of subjects enumerated in that section. With the same object, apparently, the paragraph at the end of sect. 91 was introduced, though it may be observed that this paragraph applies in its grammatical construction only to No. 16 of sect. 92." -f^^M That, except the mistake in the criticism, in the italicised part of the paragraph, is a correct statement of the design and eflPect of the language of the Act ; that is, by the first clause, repeated, (we apprehend, with a much fuller grammatical effect than is attributed to it in the above), in the final clause of the section ; that, in cases of conflict between Parliament and the Legislatures with reference to the subjects-matter in the 91st and 92nd sections, Parliament is the dominant power, and all bona fide legislation by Parliament, within the subjects-matter of section 91, is intra vires Parliament; no matter ho\v much it may "over-rido," "overyear," " exclude," or " supersede " the power of the Local Legislatures with refer- ence to any of the subordinate classes in section 92 ; the so-called "exclusive" legislative authority in reference to which is given to the Local Legislatures ; for, not only is this expressly provided for in the first clause of section 91 ; but, by the closing clause it is ;i 108 CANADIAN CONSTITUTIONAL LAW. also, as we have seen, in effect declared, that uo matter how mnch the subjects-ruatter in section 91 may come within those in section 92, they shall not be deemed to do so : so, that, notwithstanding anything in the Act, Parliament, legislating bona fide on any sub- ject-matter in seel".3n 91, shaU have the /idlest power and authority to do so, " notwithstanding anything in " section 92 ; and notwith- standing that some, at least, of the subjects-matter in section 92, are within the very language of some of those in section 91 ; yet, bona fide legislation by Parliament on subjects-matter in section 91, is not prevented, so far as may be found necessary by Parliament for effective legislation on the subjects- matter in section 91; though such legislation "over-rides," "over- bears," or entirely des- troys, (as by the Canada Temperance Act ; or by a Prohibitory Liquor Act, for instance), the legislative power of the Local Legis- latures with respect to the subjects- matter in section 92, that have bona fide fallen within the purview of the effectual legislation of Parliament on the subjects-matter in section 91. ' '#*' That is the law of the passage we have quoted from the Insur- ance Case, in the Privy Council. ■• • Now comes the next paragraph to which we have referred, which has no bearing at all upon the law as we have above stated it ; and has no applicability whatever to the law in such cases as Regina v. The Justices of King's; Russell v. The Queen; or Cashing r. Dupuy. It assumes that all M-e have alleged, as above, is the clear meaning of the Act, to meet the conflict that the framers of the Act had " foreseen ;" and had, to meet it, made the provisions they did : stating their meaning in dear terms in the closing part of the first clause of the 91st section of the Act, and rendering it more emphatic by stating it again in the closing clause of that section. All that, then, being conceded in the case we are consideringi which was not a question as to whether certain legislation of Par- liament was good or not, as to being an interference with local powers, as it was in the cases above name ?M*i5 Following the passage we have quoted, the Privy Council > » pontinue thus, — • ^i:iy^\.^j}im\ .it.\i\, " Take as one instance the subject 'marriage and divorce' con- tained in the enumeration of subjects in sect. 91; it is evident that solemnization of marriage would come within this general description ; yet 'solemnization of marriage in the Province' is enumerated among the classes of subjects in sec. 92, and no one can doubt, notwithstanding tJte general language of sect. 91, that this subject is still within the exclusive authority of the Legisla- tures of the Provinces." ^>.^ rHJ ^i; ■J^it ^»,>tA ,A1?>^ ,c .jiv;. This, the intelligent reader will not fail to notice, connected with its immediately preceding context, is simply to show, that, because the general language of the term " marriage," in sec. 91, over which Parliament has the " exclusive" power to legislate, is wide enough to include the subject of " solemnization of marriage," a subject-matter within the " exclusive" legislative power of the Local Legislatures — the reader must keep in mind that this siumbling-block "exclusive" is rendered in each case, by the governing language of sees. 91 and 92, a word of limited, qualified meaning — " that it could not have been intended that the powers exclusively assigned to the Provincial Legislatures should be absorbed," (" swallowed uiJ as a vortex ; destroyed." Wore.), " in those given to the Dominion Parliament." That is, that because \ \ Parliament has the exclusive, dominating, over-riding power, on the general subject of " marriage," which is wide enough to include solemnization of marriage, it must not be supposed that, therefore, the Local Legislature cannot legislate at all, with reference to this subject. This is no answer to the claim, admitted to be well- founded, that Parliament has the over-riding power ; but is, in effect, a claim, that, that being the case, does not, necessarily, destroy the subordinate power. It may do so, wholly or partially, after effectual legislation by Parliament, as in the clear case of so destroying the power to license, by the Canada Temperanoe Act ; CANADIAN CONSTITUTIONAL LAW. Ill IS, m ■ 11'' but that is only the result of legislation by Parliament, actually and eBTtictually had within a subject matter within its superior U cognizance. But,* until Parliament has so legislated, the Local Legislature can go on and legislate on the subject, for instance, of solemnization of marriage, but no farther within the subject of >j(.marriage than that. It can go on and legislate within the subject *v.of such licenses as fall within sub-sec. 9 of sec. 92 " in order to the raising of a revenue for Provincial, Local or Municipal pur- poses;" but, no further within the subject of "Regulation ot Trade and Commerce," than that. It is on one side of the truth involved ,in this, that Mr. Justice Henr' errs ; and on the other side of it. Justices Taschekeau and G Wynne : the learned Chief Justice, and Mr. Justice Fournier with him, in the case below, having been the only Judges there who followed, between the two wrong seta of views, — one on the one side, and the other on the other side, — .|jb4*i*^^^'>'> the happy medium line of the truth. -MuH: But all that is there, distorted and misunderstood as it has been, is as far as the poles are asunder from holding that Parlia- ment is not the dominant power, and that when the legislation of the two bodies, under the 9lst and 92nd sections, conflicts, the legislation of the Local Legislatures must not give way. The dominant power of Parliament is conceded ; but that concession does not amount to the admission, as Mr. Justice Henry, from his ^i, wrong point of view, and Justices Taschereau and Gwynne, from theirs, would make it out to be, that thereby the power of the Local Legislatures, was ab initio, " absorbed " — " swallowed up as in a vortex ; destroyed!" -i-?,U'r We might pursue the matter from this case a little further. In continuance, recollect, of the same line of argument, which we — not as a politician, but simply as a legal analyst — have fairly placed before our readers, in our honest, and, say, patriotic, effort to re- move the ignorance and uncertainty in which many of the states- men, politicians, judges and lawyers of this Dominion have been so apparently hopeletisly involved, in connection with the questions we are considering ; the learned Judicial Committee go on, — " So, ' the raising of money by any mode or system of taxa- tion' is enumerated among the classes of subjects in section 91 ; but though the description is sufficiently large and general to in- clude ' direct taxation within the Province, in order to the raising of a revenue for Provincial purposes,' assigned to the Provincial Legislatures by section 92, it, obviously, could not have been in- 112 OANADIAN^CONOTITCTTIONAL LAW. It tended that, in this instance also, the general power should over- ride the [>articular one." This is an admirable instance, selected by the Privy Council, to sustain their argument against Justices Tascuereau and GwYNNE, True, the power in Parliament " to raise money by any mode or system of taxation " is large enough not only to in- clude direct taxation for general Dominion purposes, but also, as their Lordships of the Privy Council put it, " for Provincial pur- poses " as well ; but is that reasonable ? True, by straining the words you can include that, but isn't it contrary to the very spirit of the Act that that power should, ab initio, or at all — as re- gards that particular subject-niatter, — be taken away from the Local Ijcgislatures ? . ..^: f.W There is no allegation at all that Parliament if it saw fit, for " the peace " of the Dominion, to abrogate the National Policy ; and, following England in her so-called " Free Trade " system, obtained the revenue of Canada largely by direct taxation; imposing, as England does, an income tax ; that Parliament could not do so. But, that, even in that case, the Local Legislatures could still ex- ercise their right of direct taxation, without at all conflicting with the exercise of a similar right in Parliament. In the dissenting judgment of Sir Wm. Ritchie, (then Mr. Justice Ritchie), in Severn v. The Queen, 2 S. C. R. 101, this very point is considered. In answer to his learned colleagues, who differed with him in that case, he says, on the very point the Privy Council in the case we are examining, were considering. — " It is said this construction conflicts with the power of the Dominion Government 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 far, and so far only, as the raising of a revenue for provincial, municipal and local purposes is con- cerned, the British North America 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 ; certainly, no other or gr«2ater than would necessarily arise from the exercise of the power of direct taxation and the granting of shop and auctioneer licenses specially vested in the Local Legislatures. It cannot be doubted, I apprehend, that both the Local Legislatures and Dominion Parliament may raise a revenue by direct taxa- tion, and, if so, why may n^t both a revenue by means of licenses ? There need be no more conflict in the one case than in the other." CANADIAN CONSTITUTIONAL LAW. 118 f TW«», too, is the view taken of the same matter by the Privy Council, in Dow v. Black, L. R., 6 P. C, 282, referring to clause 2 of section 92, relatively with clause 3 of section 91. Their LiORDBHiPB say — '" \'if n They think it must be taken to enable the Provincial Legis- lature whenever it shall see fit, to impose direct taxation for a local purjjose upon a particular locality within the Province. They conceive that the 3rd article of sect. 91 is to be reconciled with the 2nd article o^ section 92, by treating the former as emjwwering THE SUPREME t.egt3IjATURE to rawe revenue by any mode of taosat/ion, whether direct or indirect ; and the latter as con- fining the Provincial Legislature to direct taxation within the Province for Provincial purposes." ' =' The reasoning in, and the rationale of the Citizens' Insurance Co. V. Parsons, in the Privy Council, are not then, — agreeing precisely with the views of Sir Wm. Ritohie, in the Court below, both in the case itself, and, as quoted above, in Severn v. The Queen, — at all as they have been mistakingly supposed to have been. It was obvious to us, as we pointed out in February, 1882, before the Canada Temperance Act case was decided in the Privy Council, that the Toronto Globe, nnd those of the same line of thought, were wrong, and utterly misunderstood the holding in the case we are considering; and that there was nothing whatever in that case, " the tendency" of which was to show that the Canada Temperance Act was ulti'a vires ; and that that Act must, and neceasarily would be sustained, unless the Privy Council ignored their reasoning, and reversed their holding, in Valin v. Langlois, and in Cnshingv. Ddpuy. This, they were very far from doing in the Citizens' Insurance Co. v. Parsons ; the holding in which, as the sequel showed, they affirmed, and established, and extended, (as we shall see, very much extended), in Russell v. The Queen. So, whether the Citizens' Insurance Co. v. Parsons had preceded or succeeded Russell v. The Queen, the one did not over-rule the other; but the latter case carried the law even still farther than the former. But, taking the reasoning in the one case, (and, that, not as a whole, but in isolated and distorted passages), used as regards one class of cases, where, on a perfectly correct principle, as we have seen from the start, the power of the Local Legislatures to the legislation in question was sustained ; and, applying those isolated and distorted passages to a case, where, in an entirely different H lU CANADIAN CONSTITUTIONAL LAW. m lit- ^ olaaa, the legislation of Parliament was sustained, and where the power of the Local Legislatures was " over-borne," " over-ridden," " excluded," and " superseded" — as Mr. Blah' said could not be done — was not wise ; and those political writers, who undertook to be exponents of the Law, succeetled in doing nothing but deceiving their readers and themselves. It was, then, in the case we are considering, laid down as follows, (p. 109),— " The first question to be decided is, whether the Act impeach- ed in the present appeals falls within any of the classes of subjects enumerated in sect. 92, and assigned exclusively to the Legislatures of the Provinces ; for if it does not, it can be of no validity, and no other question would then arise. It is only when an Act of the Provincial Legislature prhna facie falls within one of these classes of subjects that the further questions arise, viz., whether, notwithstanding this is so, the subject of the Act does not also fall within one of the enumerated classes of subjects in sect. 91, and whether the imwer of the Provincial Legidatare is or ia not thereby over-borne." */^i'*» Ther'^,. as has been contended throughout this treatise, is the rule, " a hard and fast one ;" given, as the statute furnishes it, as we pointed out at the very outset of this treatise. But, as we have also intimated, in applying this rule, * it is ([uite another matter ; and, there, case after case, as it arises, has to be considered with proper judicial knowledge, and decided on the principles of con- struction applicable to any similar case — and there are many such cases — arising under any statute, deed or other instrument. «.^. vthu So applied, that is, under "the hard and fast rule" which the Act gives us, the following is perfectly correct. But if misapplied, (as it has been), to affect the force or validity of the rule given, expressly, by the statute itself, it is no wonder that it produces nothing but confusion. The following, properly applied, is exceedingly wise : misapplied, as it has been, it results in confusion and nonsense; so much of which elements abound in many of the foolish arguments and judgments on the intricate questions con- * It will be noticed throughout this treatise how persistently this rule, has, in case after case, been denied or misunderstood ; by lawyers who seem to have been utterly unable to grapple with the questions involved j and by Judges, who, though over-flowing with pretension, are so ignorant of law, that, of one of the most ignorant and pretentious of them, it is said, (on the authority of one of hia almost tqually ignorant, and still more pretentious brother-Judges), that he made the humiiiatini^ confession, that /le had never read but one law honk in his life, — Selwyn's Nisi Prius I Fine judgments, certainly, must be expected from a state of facts like that ! 1 CANADIAN CONSTITUTIONAL LA>\. 116 tained in the aasoH wo have examined. Their liORDHHfPM aay, very judiciouHly, — " lu thcHo caHes it is the duty of the (,'oiirtrt, howover difficult it tnay be, to ascertain in what degree, and to wliat extent, authority to deal with matters Jallinfj within these classes of suhjects eicints in each Legislature, and to define in the ^)articuhir ciwe hiifore them the limits of their respective poyers. It could not have been the in- tention that a conflict should exist; and in order to prevenu "noh a result, the two sections nnist be read together, and the hmguage of one interpreted, and, where necessary, modiHod by that of the other." (Just, for instance, as was done by the Supreme Court of Canada in the Fisheries case, where, altho' the word " Fisheries," wa«, in an extreme sense, large enough to include the fisheries, — cw property, the riparian rights in ilie land, — yet it was held thai a fair construction of the different parts of the Act involved no such ex- treme reading of the word "Fisheries;" and, that, therefore, the riparian rights in the laud, were not, by the use of such word, separated from the land itself; of which they were an incident). "In this way it may, in most cases, be found possible to arrive at a reasonable and practicable construction of the language of the sections, so as to reconcile the respective powers they contain, and give effect to them all." (As in the word, " Fisheries," on the one hand ; and the word " I^ands," on the othor, in the case named above in parenthesis ; or, in the word " Lands " or " Royalties,'' on the one hand ; and the word " Revenue," on the other, as was done in the Mercer Escheat case). " In performing this difficult duty, it will be a wise course for those on whom it is thrown, to decide each case which arises as best they can, without entering more largely upon an interpretation of the statute than is necessary for the decision of the particular question in hand." And, after the magnificent reasoning, (as a general thing), of Sir Montague E. Smith, in Omt case, as applicable to the par- ticular matter for adjudication, their Lordships uttered the exceed- ingly careful and well-guarded sentence following. They say, — " Construing, therefore, the words * regulation of Trade and Commerce,' by the various aids to their interpretation as above suggested, they would include political arrangements in regard to trade requiring the sanction of ParliameiU ; regulation of trade in matters of inter-Provincial concern, and it may be that they would include general regulation op trade affecting the whole DOMINION." (This " may be,'' was, as we have seen, authoritatively 116 CANADIAN CONSTITUTIONAL LAW. 1 1 estebiishedi as no longer a possibility, or a probability, but an absolute certainty, in Russell v. The Queen — the Canada Tem- J^erande Act case, — before the Judicial Committee of the Privy Council). " Their Lordships ahstain on the present occasion from miy attempt to define the niiiTS of the authority of the DOMiNroN PARLIAMENT IN THIS DxRECTiON. It is enough for the decision of the present case to say, that, in their view, ih authority to legislate for the regulation of trade and ccmmerne does not oom- preheml the power to regulate by legislation the contracts of a par- Hdular business or trade, such (!) AS the business of fire INSURANCE IN A SINGLE PROVINCE ; (! !),* and, therefore, that its Ifegifilative authority does not, in the present case, conflict or com- pete 'vith the power over Property and Civil Rights assigned to the Legislature of Ontario by No. 13 of section 92." and-that-ts-all ! And yet it was of this case that one of the great (perhaps, the greatest of the) political Canadian organs waiieu out the following false notes, — " In view of what they, (the Privy Council), have said about Provincial jurisdiction, in matters of trade, the fate of the Scott Act, now before them on appeal, is, to say the least OF IT, rendered aomeiuhat doubtful :" and, away off in the distance^ one of the lesser Canadian organs, grinding out its notes, echoes forih, or seems to do so : — '" The tendency of the decision in The Citizens' Insurance Company v. Parsons, in the Pri^y Council, is against the validity of the Canada Temperance Act I" And the'r readers, — many of them at least, — swallowed this whole. And if the Insurance case had succeeded the Canada Temperance Act case, instead of having preceded it, in the dreadful ignorance and utter inaoility of those pretentious writers to analize a simple, legal case, there is no doubt that " the great leaders of public thought" would have proclaimed that the decision in the Canada Temperance Act case had been reversed ; as they, in effect, nave declared has been done by the later case, in the Privy Council , of the Queen v. Hodge- the Ontario License Act case, — -yet re- maining to be *' honestly, and, we trust, intelligently, examined." Reverting now to an extract we ftsade from the case, and particularly to the part which we put in italics, {ante, p. 114), — as to whether, when ihe subject-matter comes within sect. 92, and is also * See, in the Second Port of this treatise, our criticism on this holding o{ the Privy Council, in our examination of the pi-inciples of construction laid down by them in Dobie v The Temporalties Board and Russell v. The Queeti. U CANADIAN CONSTITUTIONAL LAW. H7 t> I foiin(^ to come within sec. 91, " the power of Uie Provincial Jjegis- laturea is or is not tJierehy over-borne^ — the " over-ridden," '' ex- eluded," or " superseded" of Mr. Blaki — we will direct attention to the raiio decidendi of the eases, and of the reasoning in them, on this point. For instance, the Canada Temperance Act, and, still more plainly, a Prohibitory Law, would absolutely " exclude" the Pro- vincial Legislatures from legislating with reference to "shop, saloon or tavern licenses," for the sale of spirituous liquors in order to the raising of a revenue for provincial, local, or municipal pur- poses. The riglit to legislate on the subject of Fisheries, wouW only exclude the right to legislate, by the Legislatures, on matters within the sense in which that term " Fisheries" is used in the lot ; and would not vest the title in the riparian, right* of tije land in the Dominion ; altho' Parliament could legislate on the '* property and civil rights" in the land, as far as such legislation was legitimate legislation within the subject of the Fisheries ; and, to that extent, the legislation of the Legislatures relative to the property and civil rights in the land would be ove '-borne and ex- cluded ; the balance of the legislation on the laud and its incidents, under property and civil rights, remaining in the Local Legis- latures. The right to legislate, by Parliament, on Insolvency, would sweep away, as to property and civil rights ; procedure in the courts ; local matters, and any other of the subjects-matter affected by Insolvency legislation, the right to legislate on these subjectstr matter by the Local Legislatures, as far as they were affected by bona fide legislation on the subject of Insolvency ; the remainder of legisla^on, as between those subjects-matter, outside of Insol- vency, remaining in the Legislatures. The right in Parliament to legislate for the purpose of raising a revenue by direct taxation, would still leave intact the right of the Local Legislatures to legis- I'^te as to the same subject *' within the Province in order to the raising of a revenue for Provincial purposes." The right to legis- late in Parliament, effectually, on the subject of marriage, so far as such legislation might affect the subject of "solemniza*^* of marriage," would leave the remainder of legislation on sucu .i% named subject-matter in the Legislatures. These, for instances, in the consideration of the question, "whether the power of the Pro- vincial Legislature is or is not thereby over-borne," \k'hen the S'lb- ject-matter in sect. 92 also comes within the subject-matter of sect. 91, so that Parliament, in legitimately legislating on the subjects' i 118 CANADIAN CONSTITUTIONAL LAW. i !' f" matter in sect. 9i, includes also legislation on more or less of the subjects-matter in sect. 92. THE PRIVY council's CRITICISM CRITICISED. We have already stated that among the many mistakes and misread ings of one of" the governing clauses in sect. 91 ; viz., that at the latter end of the section, one such very palpable mistake was made by the Judicial Committee of the Privy Council, — His Lordship, Sir Montague E. Smith, delivering the judgment, — in the case we have been examining. After considering, correctly, the eiFect of the opening clause, as quoted by us, (ante, p. 107), they say, in the words, which, in that quotation made by us, we have italicised ; thus, — " With the same object, apparently, the paragraph at the end of sect. 91 was introduced, though it may be observed that this paragraph applies in its gramwAjdical construction only to No. 16 of sect. ^2." In reply, it may, with due deference, " be observed," that this is entirely incorrect. The 16th clause of section 92, referred to, is as follows, — " 16. Generally all matters of a merely local or private nature in the Jrrovmce. The clause at the end of section 91, is, — *' And any matter coming within any of the classes of sub- jects enumerated in this section shall hot 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 to the Legislatures of the Provinces." We have already directed attention, en passant, to the man- ner in which the learned Chief Justice of the Supreme Court of Canada has dealt with this passage, (see ante pp. 63, 64 & 96), using the plural "classes," evidently inadvertenly, but, actually, in the sense of it, correctly, instead of the singular "class," in the phrase "the class of matters ;" thus treating the enumerated subjects in the 92ad sec- tion, as they, in fact, are, as classes of subjects of a local or private nature, &c. The whole first fifteen subjects relate to local or private matters " in the Province,"' or " to the Province," or " of the Province," or "for the Province," &g. Then by the 16th clause, after having named all of these different " classes " of local and private matters in, to, of or for, &c., the Provime, there is the more general language as above. But, if this last clause had never been inserted at all, the closing clause of the 91st section, would. 1 CANADIAN CONSTITUTIONAL LAW. 119 then, just as it does now — for, emplmtically it does ! — refer to the whole of the fifteen clauses now standing prior to the 16th. And, grammatically, this is very clear. It is not — " the class of mat- ters of a local or private nature contained in the IQth dame ••" but it is " the class of matters of a local or private nature, comprised in the enumei'ation of the classes of auhjecta, by this Act assigned to the Legislatures of the Provinces," The class of matters, &c., com- prised in the enumeration of tlie classes ; that is, in the whole sixteen classes of subjects of a local or pnvate nature enumerated in that section. This criticism of the criticism is not h3fper-criticism ! The passage is a most important one in the construction of the two sec- tions ; and if, as alleged by the Privy Council, " in its grammatical construction " — for that is the construction which would govern us in the matter — the clause applies "only to Nc. 16 of section 92," its force would, in that case, be most materially weakened in itself; and, with such a clause, so interpreted, at the end of the section, the clause at the beginning of the section might be materially weakened ; if, in its effect on the first fifteen classes of section 92, not be altogether neutralized and destroyed. T'le mistake evi- dently arose, fii'st, from carelessness ; and second, from the words " local or private nature," used in the closing clause of section 91, having been repeated in sub-section 16 of section 92; and thus the sight and sense of the careless — not to say, stupid — reader, were mislead. As we shall claim in the Second Fart of this treatise, that the Privy Council have made another gross, and in that instance, a most serious and far reaching mistake in their construction of the fi^rst clause of the 91st section ; in order that some of our readers who may possibly have more awe of "authority" than v,e have, may not be too much shocked when they find us there attacking and exposing the fallacies of the highest Appellate Court of Canada — the Judicial Committee of the Privy Council of England — in two most important C'anadian Constitutional cases ; to prepare the way for that, we will strengthen ourselves by showing still further than we have done, that they have very grossly erred in respect to the last clause of the 91st section, wh.en they so limited such clause " in its grammatical construction" (which is the only construction in the matter with which we have to do), " only to No. 16 of sect 92." Meeting a somewhat vider contention than as above made by 120 CANADIAN CONSTITUTIONAL LAW. the Privy Council, but including that as well, that very able and talented Judge, (as, differing with some of his views, tho' we have had to do, we must designate him), Mr. Justice Gwynne, in City of Fredericton v. The Queen, 3 S. C. R., at p. 566, says ; as though it were designed to meet the V3ry absurdity in the Privy Council's judgment to which we have directed attention ; — " The plain meaning of the closing paragraph of the 9l8t section is, that, notwithstanding anything in the Act, any matter coming within any of the subjects enumerated in the 91st section shall not be deemed to come within tlie classes oj subjects enume- rated in the 92nd section, however much they may appear to do so." " It was argued that what was intended by this clause, was, to exclude the subjects enumerated in the 91st section from a portici onl} of the subjects enumerated in the 92nd section, namely, those only of a * local or private nature ;' the contention being that the 92nd section comprehends other subjects than those which come under the description of ' local or private,' and so that, in effect, the intention was merely to declare, that none of the items enumerated in section 91 shall be deemed to come within item 16 of sec. 92. If this were the true construction of the clause, it would make no difference in the result, nor would it affect anythirig in aid of the contention in support of which the argument was used, for the previous part of the 91st section in the most precise and imperative terms, declares, that, notv/ithstanding anything in the Act ; notwithstanding therefore, anything, whether of a local or private nature, or of any other character, if there be anything of any other character enumerated in the d27id section, the ex- clusive legislative authority of the Parliament of Canada extends to all matters coming within the classes of subjects enumerated in the 91st section ; but in truth, all the items enumerated in THE 92nd section aue of a provincial and domestic, that IS TO SAY, OF A ' LOCAL OR PRIVATE' NATURE." And it is, by that last clause, expressly, — " the class of MATTERS of A LOCAL OR PRIVATE NATURE COMPRISED IN THE ENUMERATION OF THE CLASSES OF SUBJECTS," enumerated in section 92, — to which the last clause of section 91 does apply ; Sir Montague E. Smith and the Privy Council, to the contrary, notwithstanding. Says Mr. Justice Gwynne further, (Ibid., 567), — " The 92nd section, therefore, instead of dealing with the sub- jects to be assigned to the Local Legislatures in the same general CANADIAN CONSTITUTIONAL LAW. 191 teriDH as had been used in the 91st section, by placing under the jurisdiction of these Legislatures all matters of a merely local or private nature within the ProvirK^s, (a mode of expression which would naturally lead to doubt and confusion, and would be likely to bring about that conflict which it was desirable to avoid), enwaeratea, under items numherinn from 1 ^eu had been misunder- stood ; we might reasonably have expected that a fair examination of this latter case, would have shown the adoption in that case of some rule or test that would have established such enlarged rights of legislation in the Local Legislatures; as, it was assumed, it had been decided in that case that they possessed. But, on a fair exam- ination of that case, we confess our surprise to find the adoption of a test there, originally applied in another case for a very dif- ferent purpose ; the effect of which seems to be to have increased the legislative power of Parliament far beyond what was estab- lished in any of the decisions in the Supreme Court of Canada ; maligned, as that Court has been, for its wrongly alleged extreme holdings in the matter, in favor of the legislative power of Parlia- ment as against that of the Local Legislatures. As we have seen, from the statement made in Hodge v. The Queen itself, all that was there meant, was, that when it was fancied that because that case of Russell v. The Queen decided that the Canada Temperance Act was valid, that that implied, even where such Act had not been adopted at all, that the power of the Local Legislatures with respect to licenses for the sale of spiritnoas liquors was taken away ; was a mistake, not at all justified by any holding in th«t case. The tests named, which we are about fairly to examine, were stated and applied in the Citizens' Insurance Co. v. Parsons. Again, as we have seen, in Dobie v. The Temporalities Board; and, h ,i h Sf <:i !l! H lit I 136 CANADIAN CONSTITUTIONAL LAW. still ftgain, in Russell v. The Queen. As the rules or tests laid down by our highest Appellate Court, are, of course, authoritatively to govern all other Courts in the construction of the B. N. A. Act, and as we cannot dispel doubts that we havfe as to the accuracy of the teste, and as to the soundness of the rules, as they have been recently applied, with which we are supplied by the Judicial Com- mittee of the Privy Council, we propose to consider the rules or tests pretty fully, with a view of ascertaining the meaning that is to be attached to them, and the effect that their adoption must have upon the legislation of Parliament and of the Local Legislatures 5 and, for this purpose, we shall freely re-quote much, which, in another connection, we have already quoted. In the examination of these tests we quote from Russell v. The C^ijeeu, 7 App. Cas., at p. 836, as follows, — " The general scheme of the British North America Act with regard to the distribution of legislative powers, and the general scope and effect of sections 91 and 9.2, and their relation to each other, were fully considered and commented on by this Board in the case of the Citizens' Insurance Co. v. Parsons. According to the principle of construction there pointed ouc, the first qjiestion to be determined is, whether the Act falls within any of the classes of subjects enumerated in section 92, and assigned exclusively to the Legislatures of the Provinces. If it does, then tlie further ques- tion would arijie,viz., whether the subject of the Act does not also fall within one of the enumerated classes of subjects in section 91, and so does not still belong to the Dominion Parliament. But if the Act does not fall within any of the classes of subjects in section 92, no further question \\\\\ remain, for it cannot be contended, and indeed was not contended at their Lordships' bar, that, if the Act doe.s not come within one of the classes of subjects assigned to the Provincial Legislatures, the Parliament of Canada bid not, by its general power ' to make laws for the peace, order and good govern- ment of Canada,' full legislative authority to pass it." It will be noticed, that, in this case, the tests are proposed to determine the validity of an Act passed by tJie Parliament of tlie Dominion. This, it can be easily seen, is a very different matter from applying precisely the sau-e tests to determine as to the validity of an Act passed by the Local Legislature. In this latter case, it will be seen from our entire examination of the question, that, as the Legislatures obtain their power to legislate by the 92nd section, subject to their having such power over-ridden ) -i CANADIAN CONSTITUTIONAL LAW. 137 by the effectual bona jide legislation on any of the subjects- matter in section 91, by Parliament; it is quite clear, in such case — i. e. as logards all legislation by the I^ocal Ijcgislatures — that the question jirst, "whether the Act in question falls within any of the classes of subjects, enumerated in section 92," if answered in the negative, ends the matter. For, as they get all their powers of legislation by virtue of that section, " if the Act in question do not fall within any of ^' , classes of subjects enumerated in section 92," clearly they have uu power to pass such an Act. And, scconc/, if it do fall within one of the classes of subjects enumerated in section 92, then the second question would arise ; viz., whether the subject of the Act does not also fall within one of the enu- merated classes of subjects in section 91, and so does not still belong to the Dominion Parliament. If, then, notwithstanding it may have fallen within one of the classes of subjects enumerated in section 92, if it also falls within one of the enumerated cla.sses in section 91, so as to belong to Parliament; again, clearly, as we have seen, the Local Legislatures would be ousted of such legislation. But, applying the same tests to determine whether the legis- lation of Parliament is valid or not, is quite another thing ; and pre-supposes the existence of another element which is not con- tained in connection with the question as to the legislative powers of the Local Legislatures. If it is *rue, as is expressly stated in the quotation we have made, that " It the Act does not fall within any of the clas.ses of subjects in section 92, no further question will remain ; " and, that, " It cannot be contended that, if the Act does not come within one of the classes of subjects assigned to the Pro- vincial Legislatures, the Parliament of Canada had not, by its general power ' to make laws for the peace, order and good govern- ment of Canada' full legislative authority to pass it;'* then we have an exceedingly simple rule; and all that will bo necessary, in order that we may be able intelligently to apply it, will be, simply, to ascertain what their Lordships mean by the language, " If the Act does not come within one of the classes of subjects assigned to the Provincial Legislatures ; " and, that, we are able to do by their holding in the two cases of Dobie v. The Temporalities Board, and Russell v. The Queen ; where such tests were applied. The deduction from those cases, on the point, is, then, thi**^ the meaning of the words, " If the Act does not come within one of the classes of subjects assigned to the Provincial Legislatures," is, 138 CANADIAN CONSTITUTIONAL LAW. ! i ' n ! ■I! I I % simply, — " If the Act is not such an one, as hy virtue of one of the classes in section 92, might be passed by the Local Legislature." That, then, would leave the statement even more simple and un- raistakeable, and open to less possibility of being " misunderstood," than even the comparatively clear way that their Lordships have put it. Extended then, as regards the power of Parliament to pass an Act, according to that rule, it would stand thus, — "Parliament, for the peace, order and good government of Canada, can pass all Acts except those which the Legislatures, by virtue of the clauses in sec- tion 92, can pass." This, of course, is thp deduction, from the application of the first test, without any reference to the further enlarged powers of Parliament, and the relatively circumscribed powers of the Local Legislatures by the application of the second test If so simple a test as that named, is the true one ; that all Acts that the Local Legislatures cannot pass. Parliament can pass ; it, certainly, does appear singular that a Court under tbi, able leadership of the present Chief Justice of the Supreme Court of Canada has never acted on that rule ; nor even discovered its existence. True, there are expressions in the City of Fredericton v. The Queen, 2 S. C. R., 557, which we have already quoted, precisely similar to the language contained in the Privy Council's first test ; but the rationale of that case, really is, that the Act was intra vires Parliament, not because the Local Legislatures could not pass such an Act ; but, because it was within the power of Parliament to pass it, as a legislation on trade and commerce ; and, therefore, it was immaterial how much the subject-matter of the Act might come within, interfere with, or over-ride any of the subjects- matter enumerated in sect. 92 ; as Parliament, by virtue of its over-riding power, could still pass it. The language of Judge Taschereau, — similar to what we have seen is the effect of the Privy Council's first test, as applicable to the legislation of Parliament — is, ad follows, — " It is clear that the Canada Temperance Act, 1878, could not be enacted by the Provincial Legislatures, for the simple reason, that they have only the powers that are expressly given to them by the B. N. A. Act, and that the said B. N. A. Act, does not give them the power to effect such legislation. This . . seems to be admitted by all the learned Judges of the Court below who have held this Act to be ultra vires of the Dominion Parliament. Well, it seems to me, the admission that the Local Legislatures could CANADIAN CONSTITUTIONAL LAW. 139 not pass /mch an Act implies an admission that the Dominion Parliament can do so. Once the power of legislation over a certain matter is found not to vest in the Provincial Legislatures, the question is solved, and that power necessarily fdls under tfie control of the Dominion Parliament, subject, of couj*se, to the exigencies of our Colonial status." That clearly states the result of the application of the Privy Council's first test, as to whether the Act in question is one within the power of Parliament to pass it ; — " // it is an Act that the Local Legislatures cannot pass, then, subject to the exigencies of our Colonial status, Parliament can pass it." That is the clear effect of the language of Mr. Justice Taschfreau; and, we submit. It is the equally clear holding of the Judicial Committee of the Privy Council. If it can possibly be stated more distinctly, Mr. Justice Taschereau repeats, — " If this Temperance Act would be ultra vires of the Pro- vincial Legislatures, because the B. N. A. Act does not give them the power to enact it, I fail to see ivhy it is not intra vires of the Dominion Parliament." But, then, the ^earned Judge goes on to argue in the case, as we have before seen, precisely as did the learned Chief Justice, (who, as a significant fact, we might observe, neither in this case nor in any other, has laid down the principle as laid down, unmis- takeably, by the Privy Council, in the cases named j, that "under the words, * regulation of trade and commerce,' the B. N. A. Act expressly gives the Dominion Parliament the right to this legisla- tion," though " it may, it is true, interfere with some of the powers of the Provincial Legislatures;" for, says the learned Judge, further, — " Sect. 91 of the Imperial Act clearly enacts that not- withstanding anything in this Act ; notwithstanding that the control over local matters ; over property and civil rights ; over tavern licenses for the purpose of raising a revenue, is given to the Provincial Legislatures, the exclusive legislative authority of the Dominion extends to the regulation of trade and commerce, and this Court has repeatedly held that the Dominion Parliament has the right to legislate on all matters left under its control by the Constitution, though, in doing so, it may interfere with some of the powers left to the Local Legislatures." And, as we have seen, the whole strength of that case in the Supreme Court of Canada is the emphatic holding, that, being legislation on the regulation of trade and commerce, it was good no J. 140 CANADIAN CONSTITUTIONAL LAW. i-. i I 1 matter how much it might interfere with property and civil rights in the Province ; with the riglit to legislate as to licenses, and with local and private matters in the Province. Mr. Justice Gwynne, too, after discussing the question as to its relation to an Act within the regulation of trade and commerce ; and, therefore, good, no matter how much it may interfere with the local and private matters enumerated in the clauses of the 92nd section, also takes the same position as did Mr. Justice Taschebeau, and as covered by the Privy Council's first test. Thus, the learned Judge says, (p. 573), — "The Act, then, being ultra vires of the Provincial Legisla- tures, as dealing with a suhjoct not exclusively assigned to the Pro- vincial Legislatures, cadlt questio, for that point being so determined, it follows, by the express provision of the B. N. A. Act, that it is within tJie jurisdiction of the Dominion Parliament!' But, what we allege has never yet been held by the Supreme Court of Cani',da, is, that, with reference to an Act of Parliament, it is necessarily intra vires Parliament, because it is an Act that the Local Legislature of a Province cannot pass. That they have never yet held that a simple answer of " No," to the question, " Is that such an Act as the Local Legislature can pass ? '' is equivalent to the answer of " Yes," to the question, — " Is it such an Act as Parliament can pass? " Unless the language of the Privy Council is unintelligible, we think that is what they hold in the two cases named ; Dobie u. The Temporalities Board, and Ruasell v. The Queen. We do not think we have mis-stated the Privy Council in the matter any more than wc have mis-stated Justices Tascher- EAU and GwYNNE, whose express language we have quoted as above. And yet, with the fullest deliberation, and the greatest deference, we cannot bring our reasoning to the assent that the test named, as to the powers of Parliament to legislate, is the correct one. And, because we think the rule is corrupt, in order to thoroughly test '* . we now propose to follow it, historically, FEOM ITS INCEPTION IN THE PRIVY COUNCIL. In L'Union St. Jacques de Montreal v. Belisle, L. R., 6 P. C, 35, there is an informal statement of the principle from which the tests are derived. In that case, to which we have before referred in tracing out the law on the main point of this investigation, there was a claim made that an Act of the Legislature of Quebec, relative to the appellants — a building society — was an Act relating to insolvency, and therefore, was vUra vires the Local Legislature. CANADIAN CONSTITUTIONAL lj\.W. Ul It was deckled otherwise ; their Lordships in the jndgment, deliveied by Lord Seijiornk, saying, — " Clearly this matter is private ; clearly it is local, so far as locality is to be considered, because it is in the Province, and in the City of Montreal." That, then, brought it within one of the clauses of sect. 92; and it is then declared that the Ad of the Local Legislature is valid unless it is qualified by something in sec, 91 ; which section, it is stated, "qualifies it undoubtedly, if it be within any one of the different classes of subjects there specially enumerated" And, after (quoting the closing clause of sec. 91 as eslablishing that point, their IjORD- 8HIPS add, — " But the onuH is on the respondent to show that this, being of itself of a local or private nature, does also come within one or more of the classes of subjects specially enumerated in the 91st sect." It was, then, as we have before seen, held, that it did not come within either of the classes of subjects enumerated in sect. 91 ; and, hence, was intra virea the Local Legislature, Here, then, are the tests in embryo ; but thej are tests not as to the validity of an Act of the Dominion Paiiiamcnt ; but, as we have .seen, — a very different thing, — as to the validity of an Act of the liocal Legislature. The tests clearly applicable to that case where they were so applied, were, then ; first, Does it come within sec. 92 ? If not, there is an end of it, for the Local Legislatures only have power to legislate with respect to matters enumerated in sect. 92. But, if it does come within sect. &2, does it also come within sect. 91 ? If not, then it remains. If it do come within one of the clauses in sect. 91, — unless, indeed, we might add, it is one of the classes of subjects, which, expressly, by its nature, is brought to a certain, limited, defined extent, within one of the clauses in such section, — then it is qualified by section 91 ; the manner and extent of the (qualification varying with the circum- stances of the case, as we have before pointed out. In Dow-y. Black, Ibid., 282, where it was claimed, in the Privy Council, after having been so held in the Court below, (the Su- preme Court of New Brunswick), that the Act in (piestion, enacted by the IjOCoI Legislature of the Province, was lUtra vires, m being legislation on a subject-matte: —that of a railway extending beyond the Province — out of the jurisdiction of the Local Legislature, it was held that the Act in question was intra vires the Legislature as being legislation on the subject of direct taxation in the Pro- vince; but, if not within that subject-mattt , it was .still good as relating to a merely local or private matter in the Province within 142 CANADIAN CONSTITUTIUNAL LAW. « the 9th article (projierly the 10th) of the 92n(l Hcct. Here, again, the teats, which are clearly appliuble, nu we have seen, to a statute enacted by the Local Leg iddt ares, were applictl, and more diotinot- ly so than in the previous case ; although not then regularly for- mulated as they have since been. However, in efft'ct, they were applied when their Loudsiiiph held that the Act in (|uestion was "a law relating to a matter of a merely local or private nature within the meaning of the 9th article of nect. 92, of the Imperial statute; and, therefore, one which the Provincial L'^gislature was competent to pass," (the first test); "unless" (the second test) " its subject-matter could be distinctly shown to fall within one or other of the classes of subjects specially enumerated in the 91st section." " This view," their Lordships add, " is in accordance with the ruling of this tribunal in the recent case of the L'Union St. Jacques de Montreal v. Belisle, decided on the 8th of July, 1884." In neither of the cases, so far, it will be observed, where the tests were introduced and established, is the slightest intimation given that the tests are also applicable to the decision as to the validity of an Act of Parliament; involving, as that does, as we have >een, additional and very difibrent considerations In the next case ; Attorney-General for Quebec t . Queen Insurance Co., L. R., .S App. Cas., 1097, which was the case where an Act of the Quebec Legislature, providing that stamps should be affixed to certain insurance policies, was in question ; and where it was held, by the Judicial Conimittee of the Privj' Council, that such Act was ultra vires, as being neither legislation for direct taxation, nor as to licenses under the 9th clause of sect. 92 ; but a Stamp Act. As this, too, was an Act of the Local Legislature ; to decide that, only involved an application of the first test ; — Does this come within either of the clauses of sect. 92 ? If not, it is clearly ultra vires, and the next test i? unnecessary. The Master op the Rolls, in delivering the judgment, said, — " The sole question their LoRCSHiPS intend to consider is whether or not the powers conferred by the 92nd section of the Act in question are sufficient to authorize the statute which is under consideration ? " Then, they add, noticing a distinction we have previously pointed out, with reference to the powers of the Local Legislatures being qualified ; over-ridden, or left undisturbed, by their coming within the classes of subjects enumerated in sect. 91 ; just according, CANADIAN CONSTITUTIONAL LAW. 149 80, from the nature of the subjects-matter of the clauses in sect. 92, and the nature of the legishuion by Parliament, i\uiy may bo affected, — " It is not absolutely necessary to decide in this case how far, if at all, the express enactments of the 92nd section of the Act are controlled by the provisions of the 91st section, because it may well be that so far as regards the two provisions wiiich their Lordships have to consider, nan^.ely, the sub-sections 2 and 9 of the 92nd section, those powers may co-exist with the powers con- ferred on the Legislature of the Dominion by the 9 1st section. Assumivg that to be 8o, the question is, whether what has been done is authorize \ud private matters in the Province ; no matter how much :t may appear to do so, noi how much it may actually do so, so as to interfere with or prevent Parliament from bona fide pass- ing an Act regulating the trade or traffic in intoxicating liquors. It is with no desire to indulge in mere captious criticism that we pursue this matter further. We have proposed to discuss the questions in connection with our subject fairly and honestly, and with our utmost intelligence ; and, if, in so carrying out the design, we find — as we do find — a series of decisions by our very highest Appellate Court, the Judicial Committee of the Privy Council, which we think are unsound ; and, followed to their logical sequence, most pernicious, and calculated to destroy — not the pow- ers of Parliament to legislate ; but to greatly increase those powers in a manner in which we believe the framers of the Act never for one moment contemplated would be the result of the Act ; — but 152 CANADIAN CONSTITUTIONAL LAW. . t^i i fi' r very much of the legislative power of the Act, exclusively given to and vested in the Local Legislatures. So, it seems to us, that while such men as Messrs. Blake, Mowat, Judge Henry, &c., have been pressing utterly unsound arguments, the effect of which would be, as we have shown, virtually to strip Parliament of any power of effective legislation ; and while the political papers have been exulting over the result of such cases as the Mercer Escheat case ; the Fisheries case ; the Ontario License case, and even the Parsons Insurance case, with the questions of mere detail under the Act, which the decisions in these cases, and in the Ontario Streams case as well, (as far as we can tell, from the news- papers' reports, of what is inx'olved in it; the report of the case, neither in the Supreme Court ox Canada, nor in the Privy Coun- cil, being yet to hand),* involve, they have entirely lost sight of, or failed to appreciate, the fact, that, in the Parsons' Insurance case, itself, coupled with the holding of the same learned Board that decided that case, in Dobie v. The Temporalities Board, and in Russell V. The Queen, the law has been carried — if it be law, which we very much doubt — far, far beyond any holding in the Supreme Court of Canada relative to the legislative powers of Parliament under the 91st section of the Act Coupled with the point we have been considering, — which has reached its ultima Thule in Russell v. The Queen, where, as we have seen, it has been directly held, that, if m reference to an Act of Parliament, the question be asked. Could the Local Legislature pass the Act ? the reply be in the negative, the matter is settled ; for that it cannot then be contended, that Parliament could not pass the Act v/hich was without the competency of the Local Legislature, — there is another question running closely into it, but which we M'ill endeavour to keep apart from it, until we have more fully discussed the question we are now considering. The principle, then, as we have intimated, in an earlier part of this treati.se, which I i power of Parliament ; (that as to their right of legislating as to the great sweeping subject in commercial communities, ** the regu- lation of trade and commerce ;" were, in their anxiety not to trench, improperly, on the rights of the Local Ijegislatures to exercise their full powers of legislation, careful to lay down the doctrine that those wide, sweeping words, must be construed simply to mean-^ " Political arrangeraerUa in regartl to trade requiring the sanction of Parliament ; regulation of trade in matters of inter-provincial" (t. c. meaning between the Provinces, generally, of the Dominion) " concern, and it may be that they would include general regulation of trade q^ec^in^r the whole Dominion;'^ the only limitation, however, which their Lordships would, as a matter of abundant caution, then authoratively attach to the power of Parliament to legislate on that subject, was to hold, merely, that " its authority to legislate for the regulation of trade and commerce does not comprehend the power to regulate by legislation the contracts of a particular business or trade, such aa the ,bimneaii of fire insurance in a single Province." For the purposes of that ease all that was necessary to decide was that the legislation of the Local Legislature as to the con- ditions of a fire insurance policy, did not fairly come within the words " regulation of trade and commerce ;" and, therefore, there was p^^ actual necessity for their Lordships then going beyond that. Otherwise, doubtless, had it been necessary to have acted on the rules iuey subsequently adopted, as we have seen, and they had then reasoned from the principles established in Russell v. The Queen, instead of defining the powers of Parliament to legislate on the regulation of trade and commerce, with the limitation on such powers, as named ; the doctrine would then have been established, as acted on in Dobie v. The Temporalities Board, and as plainly declared in Russell v. The Queen, that it is only ouch Acts on any subject-matter, whatever, as are actually within the power of the Local Legislatures, (subject, too, to the over-riding power of Par- liament where these come within the subjects-matter of the 91st section), that Parliament is precluded from passing. And, hence, any Acts, without any further question, aiFecting property and civil rights in the Provinces ; the granting of licenses ; local and private matters generally; or, in fact, any of the classes of local and private matters, whatever, enumerated in the 92nd section, that the Legislatures of the Provinces, either alone, or conjointly, cannot pass; Parliament, by virtue of the power in the first portion of the 1S6 CANADIAN CONSTITUTIONAL LAW. \i opening clause of the Olst section "to mui! \\ I I m full power to legislate upon all matters strictly within its jurisdic- tion no mailer what effect it may have on classes of mailers comprised in tlwse assigned by sec. 92 to the Legislatures of the Provinces ; and I base my contention on the concluding lines of sect. 91. TFAer-s there is an apparent cmflid, in so far as it is a bona fide regulation of trade and commerce, the local interest must give way." All this shows, very clearly, the admission, on the part of the Appellants that there is a conflict in authority : that the subject- matter or the Act does come within different classes of the matters of a local and private nature enumerated in sect. 92. Then, too, the very foundation of the contention for the Res- pondent was, that the Act was a legislation in relation to matters coming within different classes of sect. 92, which, as will be observed, was, in effect conceded ; and, it was further contended, that, bona fide, the Act did not come within the term ''regulation of trade and commerce ;" and, therefore, it was claimed, being, as was virtually conceded on all sides, an Act relating to matters coming within different classes of the subjects enumerated in sect. 91, that it was ultra vires Parliament. So, too, the learned Chief Justice of the Supreme Court of Canada, in his able judgment, admits the vdiole contention, that, on the point, was conceded by the Counsel for the Appellants ; that the subject-matter of the Act did come within the subjects- matter of sect. 92, and that the Act did conflict and interfere with the local rights of legislation in reference to such matters. The following shows that his judgment v/as to cover that very point of concession. Thus, says the Chief Justice ; (p. 640), — " In my opinion, if the Dominion Parliament, in the exercise of and within its legitimate and undoubted right to regulate trade and commerce, adopt such regulations as in their practical opera- tion conflict or interfere with the beneficial operation of local legis- lation, then the law of the Local Legislature must yield to the Dominion law, BECAUSE MATTERS COMING WITHIN THE SUBJECTS ENUMERATED AS CONFIDED TO PARLIAMENT ARE NOT TO BE DEEMED TO COME WITHIN THE MATTERS OF A LOCAL NATURE COMPRISED IN THE ENUMERATION OF SUBJECTS ASSIGNED TO THE LOCAI LEGISLATURES. In other words, the right to regulate trade and commerce is not to be over-ridden by any local legisla- lation in reference to any subject over which power is given to the Local Legislature." Here were the clear claim and concession : — that the subject- CANADIAN CONSTITUTIONAL LAW. 159 matter of this Act was the regulation of trade and corjmerce, and that it did "come within" classes of matters of a local nature enumerated in sect. 92. It was, very plainly, never dreamt by that astute lawyer, SiR Wm. J. Ritchi'j:, that the Act would have been good merely because the Local Legislatures could not pass it, as a whole ; nor, on any other ground than that though the Act was "in conflict and interfered with the beneficial operation of the local legislation," it came within the prevision that being legislation, bonajide, on a subject-matter within section 91, it was good, *' not- withstanding anything in the Aot ;" under the latter part of the first clause, and the last clause, of that section. Mr. Justice Fournier agreed with this judgment. So, too, the dissenting judgment of Mr. Justice Henry was based not only on the contention, that the Act was not within the regulation of trade and commerce, but that if declared valid it would be over-riding the powers of the Local Legislatures as to their right of legislation on the subjects-matter of sec. 92. We make the following extract on the point from the judgmejit of that learned Judge ; (p. 556), — "If it be finally decided that the provision for the 'ijgulation of trade and commerce ' over-rides the power of the Local Legisla- tures in the matter of licenses, I see no impediment in the way of legislation, in regard to matters affecting in the remotest way trade and commerce, that would not merely restrain and control, but completely nullify, the Local Legislative power in respect of 'civil rights and property' and other important interests." That learned Judge evidently thought that if the Act were sustained it would be sustaining the " making laws," by Parlia- ment, " in relation to matters coming within the classes of subjects by the Act assigned exclusively to the Legislatures of the Pro- vinces ; " quite unaffected by the consideration that the Act was one, which, of course, could not be passed by the Local Legislatures. And, Mr. Justice Taschereau, although giving expression to the views as quoted by us ; still, admitting that the Act is an in- terference with the legislative powers of the Local Legislatures, under section 92, falls back upon the same position, taken, as we have seen, by the learned Chief Justice, that, notwithstanding that, the Act being a regulation of trade and commerce within the meaning of section 91, the legislation by Parliament is still good under the latter part of the first clause of the section. Thus; (p. 558),- 160 CANADIAN CONSTITUTIONAL LAW. ' I. it it- " Then, it seems to me, that under the words * regulation of trade and commerce,' the B. N. A. Act expressly gives the Domin- ion Parliament the riglit to this legislation. It may, it is true, interfere with some of the poioers of the Provincial Legislatures, but section 91 clearly enacts, that, notwithstanding anything in the Act, notwithstanding that the control over local matters, over property and civil rights, ovei' tavern licenses, for the purpose of raising a revenue, is given to the Local Legislatures, the exclusive legislative authority of the Dominion extends to the regulation of trade and commerce, AND THIS COURT HAS REPEATEDLY HELD, that the Dominion Parlia- ment has the tight to legislate on all the matters left under its control by the Constitution, though, in doing so, it may interfere WITH some of the POWERS LEFT TO THE LOCAL LEGISLATDRFiS." And the whole of the five Judges in the Supreme Court of New Brunswick, who, in Ex parte Grieves, (supra), held that the Act was ult7'a vires Parliament, — not to trouble the reader with any further quotations from their judgments, — all took the position, which, then, no one seriously questioned, that the Act was a legislation with reference to various subjects or matters within the CLASSES of local and private matters enumerated in section 92, (that advisedly, Sir Montague E. Smith, and the Privy Council, to the contrary notwithstanding), and assigned to the Local Legisla- tures. As we have seen in our examination of the Privy Council cases, (once more to repeat it), in all the cases preceding Dobie v. The Temporalities Board, where the rules of construction were laid down, they Ivere cases where the question arose as to the validity of the Acts of the Local Legislatures; and the tests there, quite properly proposed, were, first, Does the subject-matter legis- lated upon come within any of the clauses of sec. 92 ? If not, that ended the enquiry, as the Local Legislatures received all their powers under that section ; and, therefore, if the subject-matter were not included in that section, obviously the Act was ulfra vire.'i the Local Legislature. But, if the answer were in the affirmative, then the next question arose as to whether the Act did not come within tho 91st sect, and, if so, whether it was or was not thereby over-borne? That was the .state of affairs down to the Citizens' Insurance Co. v. Parsons, where, as we have seen, the question was still as to the validity of an Act of the Local Legislatures; for which these tests were adapted. To make the first of these tests appli- cable to the almost opposite case of an Act of Parliament ; the test, OANADI'VN CONSTITUTIONAL LAW. 161 as we have seen, is utterly worthless, unless we assume, if the reply to the question as to whether the Act in question comes within the 92nd section, be in the negative, that the power then exists in Parliament to pass the Act, be it on what subject it inay, and without any enquii-y as lo ivhat subject it is on. But, in order to make that test of any value as to an Act of Parliament, we must assume that, in its entirety ; without any limitation or qualification. And this, we find, was actually the result of the holding in Dobie v. The Temporalities Board. There, acting on this, as it appears to us (because, the assumption, we take it — and that, without any doubt ; or, otherwise we would not presume to do, as we now very strongly do ; question, as a matter of principle, the correctness of such holding by a Court of such high authority — is an utterly unsound one) utterly unsound assumption, in holding that as to two Provinces, because, they neither separately^ nor con- jointly, could pass an Act relating to property and civil rights in these Provinces,* therefore Parliament could do so. And in Russell v. The Queen, the principle established, — though, really, extra judically so, in Dobie v. The Temporalities Board, — is affirmed ; and assumed, without being demonstrated, as beyond the possibility of contention. " Law is the very reason of the thing," and that which is not reason is not law, no matter from whom the declaration of what is law, proceeds ! We give, again, the statement of their Lordships in Russell v. The Queen, (p. 836), showing clearly, in this connection, that that old, and as we respectfully submit, utterly inapplicable test to this entirely diiferent ase from that in which that test was a legitimate out was actually applied and established. After a reference to the case the Citizens' Insurance Company v. Parsons, in which it will b remembered the test was as to the validity of an Act of the Lo( 1 I^gi ,lature, their Lordships say, — " According to the principle of construction there pointed out, the first question to be determined is, ivhether the Act now in question falls within any of the classes of subjects enumerated in sect 92, and assigned exclusively to the Legislatures of the Pro- * It will he observed that we have raised no question on the points decided by the Privy Council, as to the competency of the Legislatures, alone or oonjointly, to pass such Acts as that in (luestion, in Dobie v. The TemporalitiejB Board ; although we think their holding on those points, is open to the gravest doubt. For the present, however, we prefer confining ourselves to the contention, that, even adinitting the correctness of their holding on those points, the test they have proposed as to the validity of Acts of Parliament is, still, an unsound one. 162 CANADIAN CONSTITUTIONAL LAW. ii'. ¥ vinces. If it does, then the further question would arise, viz. whether the subject of the Act does not also fall within one of the enumerated classes of subjects in sect. 91, and so does not still belong to the Dominion Parliament. But if the act does not fall within any of the classes of subjects in sect. 92, no further question will remain, for it cannot he contended, and indeed was not contended at their Lordships' bar, that if the act does not come within one of the classes of subjects assigned to the Provin- cial Legislatures, the Parliament of Canada had not, by its general power ' to make laws for the peace, order and good government of Canada,' fu)! legislative authority to pass it." Surely, no language can be more distinct ; positive, and unmia- takeahle than that !' Then, after stating the three subjects-matter under which it was contended the " legislation fell," viz., the 9th, 13th and 16th sub-sections ; as to licenses ; property and civil rights, and local and private matters generally, their Lordships go on to show that "the Act," or " tJie matter of the Ad," as they convertibly call it, is not within either of those classes of subjects ; so, that, under either of them, the Local Legislature could pass the Act. Thus, (p. 837),- -^ _ " The Act in question is not a fiscal law. It is not a law for raising revenue. Indeed, it was a main objection to the Act that in the City of Fredericton it did in point of fact diminish the sources of municipal revenue. It is evident, therefore, that the matter of the Act is not within the class of subject No. 9, and con- sequently that it could not have been passed by the Provincial Legislature by virtue of any authority conferred upon it by that section." Again, — " It was contended by the appellant's counsel, and it was their main argument on this part of the case, that the Temperance Act interfered prejudically with the traffic from which this revenue w«s derived, and thus invaded a subject assigned exclusively to the Provincial Legislature. But, supposing the effect of the Act to be prejudicial to the revenue derived by the munici- pality from licenses, it does not follow that the Dominion Parlia- ment might not pass it by virtue of its general authority to make laws for the peace, order and good government of Canada. As- suming that the matter of the Act does not fall within the class of subjects described in No. 9, that sub-secti jn can in no way interfere with the general authority of the Parliament to deal with the matter." CANADIAN CONSTITUTIONAL LAW. 163 Their Lordships also go on to show that the Act in question did not " fall within" either of the other classes of subjects enu- merated in sec. 92. We make a few additional extracts from their Lordships' judgment. Having shown, as above, that the Act directly aifected the matter of licenses and reduced the revenue therefrom, their Lordships, on that point, further say, — " It is to be observed that the express provision of the Act in question that no licenses shall avail to render legal any act done in violation of it, is only the expression, inserted probably from abun- dant caution, of what would be necessarily implied from the legis- lation itself, assuming it to be valid." Here, then, is the clear admission of the fact, as is apparent from the Act itself, that the Act is a direct interference with and over- riding ; a total destroying, of the power to legislate as to the grant- ing of licenses for the sale of liquor. Is this not a legislation " relating to matters coming within " the 9th clause of section 92 ? What, in the world, else, is it? Is it not, being an Act prevent- ing the sale of liquor, an Act relating to matters of property in liquors? If not, what in the world is it? Being an Act to make licenses nugatory, and to prevent the sale of liquoi ., is not that legislating in reference to the civil rights of citizens to get licenses, and, under them, to sell liquor ? If not, what in the world is it ? " In however large a sense these words," (property and civil rights), their Lordships go on to say, " are used, it could not have been intended to prevent the Parliament of Canada from declaring and enacting certain uses (civil rights) of property, and certain acts (civil rights), in relation to property, to be criminal and wrongful." Certainly not ; and, therefore, the Act provides, under the 91st section, 27th clause, that " The Criminal Laid" is within the jurisdiction of Parliament; and, ''notwithstanding anything in the Act," the exclusive authority of Parliament extends to all mat- ters coming within the criminal law ; and, " any matter coming within criminal law shall not be deemed to come within property and civil rights," to prevent effective legislation by Parliament on the criminal law. Just so the Statute ! Just so, the holding, in principle, of the Supreme Court of Canada ! But, the very opposite is the mani- festly incorrect holding of the Judicial Committee of the Privy Council ! With all deference ! 164 CANADIAN CONSTITUTIONAL LAW. ir' 1 r-^ W ''■' \ v ■< 1 1 1 1 1 ;" : :; And, yet, then, they do admit, after all, it is a legislation as to property and civil rights ? But, being so, on their own test, that is not to he justified by its being legislation on criminal law; but, as regards their theory, it must stand or fall, on the single ground, that, because it is an Act dehors the power of the Local Legislatures to pass, therefore it is a perfectly i^ood Act within the power of Parliament. Their Lordships, even, must not be allowed to abandon their ground in that way, and when driven to the admission that the Act is a legislation on property and civil rights, to escape by show- ing that it is also legislation on a criminal law. If they rely on the test above named, that the Act is to be decided to be good be- cause the Local Legislature cannot pass it; they must not be allowed, when they find that ground falling beneath their feet, to sustain themselves on ground the soundness of which cannot suc- cessfully be questioned ; and, to uphold their newly manufactured, destructive, and utterly unsound test, to fall back on the other that the Statute gives, and which is one as unquestionable as it should always have been unquestioned ! True, again, it is, that, as their LoRDSHiir^. observed, — "Few, if any, laws could be made by Parliament for the peace, order and good government of Canada which did not in some incidental way affect property and civil rights; and it could not have been intended, when assuring to the Provinces exclusive legislative authority on the subjects of property and civil rights, to exclude the Parliament froTn this general power, (that is, of passing Acts in relation to matters of property and civil rights), whenever any such inciden- tal interference would result from it." No! — with all courtesy and respect — Certainly not! And, therefore, the Imperial Parliament, while giving to the Local Legislatures general "exclusive legislative authority on the subjects of property and civil rights," made the express provision in the Act, that, notwithstanding such exclusive power was given, generally, to the Local Legislatures, " exclusively to legislate on property and civil rights ;" with respect to twenty-nine classes of large and general subjects, Parliament should have the right to legislate with respect to them, even though they did come within property and civil rights; and no matter how much such legisla- tion, on such twenty-nine large and general specified subjects- matter, should come within property and civil rights, "it shall not be deemed to do so ;" leaving all other powers, (except where affected by other parts of the Act, as by the 41st sect, as to Election Courts, CANADIAN CONSTITUTIONAL LAW. 165 under the decision of Valin v. Langlois), subject, under the express phraseology of the Act, to the " exclusive" power of the Local Legislatures to make laws as to property and civil rights, as well as to the others of the subjects-matter enumerated in sect. 92, But, that clause from their Lordships' judgment is very far from estab- lishing the disputed doctrine, held by them to be indisputable, thati if, in reply to the question as to any Act of Parliament, — Can the Local Legislatures pass it, either alone, or conjointly ? — the answer be in the negative, then. Parliament can pass it. Their Lordships continue, with this extraordinary state- inent, — " It was not, of course, contended for the Appellant that the Legislature of New Brunswick could have passed the Act in ques- tion, which embraces in its enactments all the Provinces ; nor was it denied, with respect to this last contention, that the ParliaTnent of Canada might have -passed an Act of the nature under discus- sion to taJce effect at the same time throughout the whole Do- minion" Well, if this latter clause is not a surprise to our intelligent Canadian readers, then the extraordinary doctrine established by the Judicial Committee of the Privy Council, in Dobie v. The Temporalities Board, and in Russell v. The Queen, has not been astounding to ourselves ;* and, on this latter point we are neither doubtful nor reticent. Why, if their Lordships read, at all, (which they assume to have done), the judgments delivered in the Supreme Courts of New Brunswick, and of Canada, they surely could not avoid knowing that the great contention was that Parlia- ment could not pass that Act ; because it was an interference with, •When we had the truth forced upon us in this investigation, so, that, do what we could, we could not escape it, that a Court which we have always looked upon with such deference, almost amounting to awe ; certainly, a Court looked upon by us so as to cause us to receive their judgments as unquestionably correct, — hid delivered such judgments as they have delivered, in Dobie v. The Temporali- ties Board, and in Russell v. The Queen, tee twre astounded I For a time we were undecided what course to take. This treatise was well under way, b.-iore, in investigating the cases exhaustively, the truth waa forced upon us, so that we could not resist it, that the judgment of the Judicial Committee of the Privy Council on the validity of the Canada Temperance Act, was even worse than the judgment which we had previously thought was the worst judgment we had ever examined, (and we have critically analized many thousands of judgments — over three thousand in one treatise alone, we once wrote), i e, the judgment, on the same question, of the Supreme Court of New Brunswick. We thought we would have to stop the work and abandon it, so monstrous were these governing decisions from our Appellate Court. But, after much thought, we decided other- wise. We resolved "to take the bull by the horns," (even though that were Jo'.m Bull himself), and wrestle with it to the death! We have done so; and, we apprehend, the death is not with us. " Palmam gci mekuit ferat I " !«■*. 166 CANADIAN CONSTITUTIONAL LAW. (i 1 1 1 ■ and a legislation upon, (and the Privy Council expressly admit, as- we have shown, that it was so, to some extent, and in some way, at least), " matters coming within the classes of subjects by the Act assigned exclusively to the Legislatures of the Provinces" — the very words of the Act, as we shall see more particularly, directly. And, as we have shown, herein, very plainly, it was admitted on all sides, with scarcely an exception, that the Act was a legislation on those local and private matters ; property and civil rights, &o., x merely local nature!' And to make less excusable the ignorance of their Lordships of what was really involved in the case, they had before them, in the argument of Mr. Benjamin, on that point, the following; {Ibid., p. 831),— "Even if the Dominion Parliament possessed the powers which it assumed to exercise by this Act, it had no power to dele- gate them and to give local authorities the right to say whether tJie provisions of the Act should be operative or not." This was simply the argument in the Supreme Courts of New Brunswick and Canada, from the maxim " JDelegatv^a non potest m CANADIAN CONSTITUTIONAL LAW. 171 delegare i'' and, it is quite obvious, from the brief ptate men t of Mr. Benjamin^ argument, and the references to clauses 9, 13 and "16, made by him that he took all the positions l)cfore the Privy Council, that were taken in the Courts below ; but, the reporter of the Privy Council, evidently puzzled with the nonsense of their Lordships' judgment, makes Mr. Benjamin 8 position to harmo- nize with it ; and, right in the teeth of what that able man claimed, as quoted above, makes him, also, give away his whole case, by this simple statement, that no counsel employed in the case in tluise Provinces will credit that he was simple enough to have made, as follows : — "Ifit (the Act) applied to tlie whole Dominion without local option it would then be in itie power of the Dominion Parliament." Mr. Benjamin, having thus been got to have made such a fool of himself, as such a statement would — contrary to the fact — show him to have been ; Mr. Chief Justice Allen, of the Supreme Court of New Brunswick, is operated on by their Loudships, and by the distortion of an isolated passage from his judgment, is made responsible for similar nonsense. {Ibid., p. 840.) The statement quoted from the judgment of Allen C. J., as the explanation of their Lordslips having derived their extra- ordinary view of what was contended in the ease, against the validity of the Act, is as follows ; (p. 841j, — " Had this Act prohibited tJie sale of liquors, instead of m^'ely restricting and regulating U, I should have had no doubt about the power of Parliament to pass such an Act ; but I think an Act, which in effect authorises tlie inhabitants of f,ach town or paiish to regulate the sale of liquor and to direct for whom, for what purposes, and under what conditions spirituous liquors may be sold therein, DEALS WITH MATTERS OF A MERELY LOCAL NATURE, which, by the terms of the 16th sub-section of sect. 92, of the British North America Act, ARE WITHIN THE EXCLUSIVE CONTROL OF THE LOCAL LEGISLATURE." This is quoted, by their Lordships, from The Queen v. The City of Fredericton, 3 P. & B. 188, for the purpose of showing, as they have stated, that it was admitted that Parliament could have passed such an Act as the Canada Temperance Act, " to take effect at the same time throughout the whole Dominion :" but that such legislation was bad because of the " local option" clause which it contained. The very extract they give for that purpose, shows Allen C. J. took no such nonsensical position at all. It showB, '■"TT '^ :ii ! il 1 1- 172 CANADIAN CONSTITUTIONAL LAW. on the contrary, that he admitted that had the law been an abso- lutely prohibitory law, it would then have been intra vires Par- liament ; but, he claimed, that merely restricting and regul^'-ting the sale of liquor was without the competency of Parliament ; that ftn Act " authorizing the inhabitants of the toM'ns and parishes to regulate the sale of liquors ;" and an Act directing " by whom," {for whom, they quote it, but that is a mis-quotation), " for v)hat pur- poses, and under what conditions, spirituous liquors may be sold therein, deals with matters CF A merely local nature, which, within the 16th sub-section of sect. 92, of the B. N. A. Act, ARE WITHIN the exclusive CONTROL OF THE LOCAL LEGISLA- TURES!" And that plain contention, which, as we have previously seen, was a part of Chief Justice Allen's general contention, — which, again summarized, was, that if the Act were a bona fide regulation of trade and commerce, within the meaning of class 2 of section 91, the Act was valid ; but, the learned Chief Justice claimed, that, for the reasons he gave, the Act was not a bona fide regula- tion of trade and commerce, within that sub-section ; and, there- fore, as he claimed, in the very paragraph v/hich their Lordships have quoted, and which is undeniably correct, that the Act, then, was legislating ipon ]ocal and private matters in the Provinces, within the meaning of sub-section 16 of section 92 ; and, that, therefore, Allen, C. J., claimed, the Act was ultra vires Parlia- ment. And it is quite obvious, that, if we admit, as Allen, C. J., claimed, that an Act regulating the trajjic in intoxicating liquor i was not, on the grounds he put it, or on any other grounds, an Act regulating the trade in intoxicating liquors ; then, there is no escape from the fact, that the Act being a legislation on matters " coming within the classes of matters by this Act (the B. N. A. Act) assigned exclusively to the Legislatures of the Provinces," was ultra vires Parliament, and void. But, as we have shown, almost ad nauseam, because it did come within the regulation of trade and commerce, it was intra vires Parliament, " notwith- standing anything in the Act," though it did come within various classes of subjects enumerated in section 92 ; because, "any matters coming within any )f the classes of siii)jects enumerated in section 91, ahall not be deemed to come within " the local and private mat- ters enuiiicrated in section 92, &c. Their Lordships singularly omit the very next words from the judgment of Chief Justice Allen ; which, if they had quoted CANADIAN CONSTITUTIONAL LAW. 173 them, would have made more apparent their strange perversion of his language and position, than is done by the passage which they did quote. That language is as follows; (3 P. & B. 188), — " I admit that these provisions of the 99th sectioti* of the Canada Temperance Act may be said to be regulations for the trade in liquors ; but looking at the declared object of the Act and the manner in which it is intended to be put in operation, I can- not think that it is such a regulation of trade and commerce as is con- templated by Uie British North America Ad. If THESE ARE NOT MATTERS OF A MERE LOCAL NATURE IN THE PROVINCE, I AM UNABLE TO SAY WHAT WOULD BE SO, IN RESPECT TO THE SALE OF LIQUOR.' There is the whole contention of Allen.. C. J., in a nut-shell. And, yet, it was that clearly-stated contention that has been so greatly distorted by their Lordships, that that was an admission — to quoto again their very language — "that the Parliament of Canada might have passed an Act of the nature of that under dis- cussion to take effect at the same time throughout the whole Dominion;" but that that, in the case in question, could not be done because of the " local option " clause in the Act. It is wonderful that .such nonsense has escaped exposure until now ! To show what a mere phantom they thought they were fight- ing, we give an extract from their LoRDSlllPS' judgment, next succeeding the passage they quoted "rom the judgment of ALLEN, C. J., as above quoted. Their LORDSHIPS say ; (p. 841), — " Their Lordships cannot concur in this view. The declared object of Parliament in passing the Act is that there should be uniform legislation in all the Provinces respecting the traffic in intoxicating liquors, with a view to promote temperance in the Dominion. Parliament does not treat the promotion of temperance as desirable in one Province more than in another, but as desirable everywhere throughout the Dominion. The Act, as soon as it passed, became a law for the whole Dominion, and the enactments of the first part, relating to the machinery for bringing the second part into force, took effect and might be put in motion at once and *Thi8 section, (pp. 10.5-107, Dominion Acts, 1878), has no relation, whatever, to the " Local Option " clause in the Act ; which is contained in the "Firnt Part " cif the Act, extending from Ibid , pp. 82 to 104 inclusive. Section 99, is the whole of the "Second Part' of the Act, which makes all the mim'te prov'-ions o/a local nature to be in force where the Act is adopted, regulating tlie sale for medicinal purposes, &c. ; which Mr. Chief Justice Ali,kn claimed rendered the Act tiltra vires Parliament, on his assumption that the Act was not within *\ie clauses in the 9l8t section; the regulation of trade, or the criminal law. 174 CANADIAN CONSTITUTIONAL LAW. .i,'- everywhere withri it. It is true that the prohibitory >>nd penal parts of the Act are only to come into force in any county or city upon the adoption of a petition to that eiFect by a majority of electors, hut this conditionaZ application of these parts of the Act does not convert the Ad itself into legislation in relation to a merely local mattei:^' And, having effectually battled with the mere myth — a crea- ture of their own imagination — that was the only difficulty wl ich stood in their way ; their LORDSHIPS added, that " The objects and scope of the legislation are still general, viz., to promote tem- perance by means of a uniform law throughout the Dominion." And, that is the case, which, as we have clearly shown, (we apprehend so clearly that no reader of any intelligence can mis- understand it), establishes a principle of construction, foreshadowed, and in effect acted on, ia Do' ie v. The Temporalities Board ; which, logically applied, if in its peculiar kind of absurdity ' were capable of being so applied, would sweep away, virtually, all the legisla- tive power which the B. N. A. Act confers on the Local Legisla- tures ! We have already intimated, that, in the exercise of our right cfitjfJHfn, we will treat all matters coming before us as though we were honestly, and impartiaUv, criticising a mere literary work, the author of which to us was entirely unknown ; and, though vre have told the truth plainly, and expressed our honest views unmis- takeably ; that is exactly what we have done in our examination of those judgments of the Judicial Committee of the Privy Council of England ; the ultimate Appellate Court of the Dominion of Canada. But, in domg so, we are constrained now to say, on de- liberation, that, were not the proofs on the face of the judgment to the contrary, we should huve thought that that judgment could not have been prepared by that Board at all, or by any of the Judicial members of it ; but, that, more probably, it was prepared by some ignorant secretary of the Board, without its having come under their Lordships' subsequent examination at all. In charity to such a high Appellate Court as that, we should have constrained ourselves ^o have come to that conclusion. But, the report itself, deprives us of even that charitable view. But, even on that charitable view of the judgment, had it been open to us, their LoRDSHlPS must, at least, have fixed the basis on which the judgment was to be framed ; which basis, as we have seen, they obtained by the misapplication of the tests in the earlier ' Ji^jUdi-^M^kJ.^ '-MU'-r CANADIAN CONSTITUTIONAL LAW. 175 .<:e Privy Council cases, (where such men as LORD Selborne were to be found acting), that were applied to determine as to the validity of Acts of the Local Legislatures, to those Acts of a very different character, and involving very different tests; viz., Acts of the Parliament of the Dominion. Xhus, as we have shown, from a quotation, which we re-quoted to make their wholo position and contention clearer, their LoRD- SHirs lay down the principle that " IF THE ACT " of Parliament " DOES NOT FALL WITHIN any of the classes of subjects in sect. 92, no further question will remain, for" (they add, to prove this), " IP THE ACT do: j NOT COME WITHIN one of the classes of subjects assigned to the Provincial Legislatures" "it cannot be cmiicndcd, and indeed was not contended at their Lordships' bar, that the Parliament of Canada had not, by its general power" (merely thai, notice !) " ' to make laws for the peace, order and good govern- ment of Canada,' pull legislative authority to pass it.** . That is the rock on which they have split I The blunder which they have committed ; which has led them hopelessly astray ! THE reserved POINT NOW CONSIDERED. , Now let us see how it happened. This is the matter so closely connected with that which we have been considering, which we desired to keep apart from it until we had disposed of that, (sec ante, pp. 152 and 157); and which we have so kept apart. We will now make this other additional point clear. We have seen how very grossly the Judicial Committee have fai]ed in their criticism of the last clause of the 91st section, in its grammatical application to the classes of local and private matters enumerated in section 92 ; quoting, as we did, on that point, the Privy Council against themselves. We have also seen how they have mis-applied, to Acts of Parliament, tests, which, in all the cases preceding Dobie v. The Temporalities Board, had been pro- perly applied to Acts of the Local Legislatures; and have fully pointed out the differences existing in the two cases. Now, we will make their blunder, in such a mis-r.pplication of those tests, more apparent; which blunder arises froai their equally as gross miscon- struction oi" the first clause of section 91. They say, — If the Act (of Parliament) does not fall within any of the classes of subjects in section 92, no further qviestion need be asked." "If tlic Act of Paniame^U, does not corns within one of the classes of subjects assigned to the. Provincial Legislatures, the Parliament of Cauada had . . full legislative -. 'i-^^^-li'liiJjL'ill'iiiii^'^tLiS^- 1 1 I I ' 1 ui 176 CANADIAN 'CONSTITUTIONAL LAW. authority to pass it," That, observe, is what they say. The result of such an absurd position we have already fully shown. We now say, that, when their Lordships make those assertions, in the paragraph quoted, they make them without the slightest authority in the world ! True, they are the Appellate Court of the Dorainion of Canada, under some circumstances. For, the appeal from the Supreme Court of Canada is taken, not as a matter of right, hut merely exists in the Privy Council as a matter o^ favor. But they are our Ai<7Ae«< Appellate Court. Then, for us, from their judgments, their is no appeal. But, if they do as they have done in Dobie v. The Temporalities Board, and in Russell v. The Queen, establish principles which are utterly nonsensical ; and, which, from the peculiar kinds of absurdity attaching to them, render them, as principles, valueless, and incapable of being applied ; notwith- standing even their decision, such judgments are not Law, never- theless. If they twenty times over decreed that, if they chose to call a horse's tail a leg, it would make it a leg ; it would not make it a leg, nevertheless ! If, for a hundred years, the highest Appellate Courts of England wandered off from the correct tests as to what constitutes a partnership ; and only came back to the truth a few years ago, when the House of Lords, in Cox v. Hickman, brought back the law to the point from which, a hundred years before, it had wandered away from the principle laid down in the Civil Law, that " The contract of partnership is nothing otherwise than the contract of agency ;" during the whole of that hundred years, the cases which we had on the subject of partnership tuere not LAW. And, so, again, if the Appellate Court of Canada — the Judicial Committee of the Privy Council of England — choose, authoritatively, to say two-and-two are eight ;" " two-an i-two" remain four, still, notwithstanding ! Precisely so, when they made the not true statements as quoted above, on which we have betn animadverting. " If the Act of Parliament does not fall within one of Vie classes of subjeoft* tissujned to the Provincial Legislatures, then Parliament ha," thefuii legislative avihmniy to pass it" is not law, in the sense in whi:h the Judicial Committee of thf; Privy Council use that language, and apply it, in Dobie «, The Tempova)i.iv..s li yajC. and in Russell v. The Queen. This we say advisr.f'v Whero do thoy get that language? TI. pi hi {<■ f nd '. r\ the Brifith Norfclj Anjerioa Act; but finU jt thero li/ r.'>bf cer- -^, .^- fV i In CANADIAN CONSTITUTIONAL LAW. 177 .« .{. tainly do uot. It is an utter perversion by them, of the language there, to claim anything of the kind, j ^, r • ; j V; If the British North America Act provided that if an Act of Parliament did not fall within one of the classes of subjects assigned to the Local Legislatures, Parliament had the power to pass it; then, assu.-edly, the Privy Council's law in Dobie v. The Temporalities Board, and in Russell v. The Queen, would have been perfectly good law. But, if that had been the provision, as the Privy Council claim, that, by the first portion of the first clause of the 91st section, it is ; then, all the machinery provided in the Act for disposing of cases of conflict when they arise, would have been unnecessary ; for no such conflict could ever have arisen. The Local Legislatures, then, would have been, expressly, limited and confined to the paasage of such Acts, (literally such Acts, as the Privy Council treat it), as come within those classes of subjects in section 92 ; so, that, under that section, they could pass such Acts; and all other Acts would have been within the competency of Parliament. Then, with that simple provision, the closing part of the first clause of section 91, and the last clause of that section, and all the enumerated subjects-matter in section 91 would have been unnecessary ; because the simple test would then have been, just as the Privy Council have now made it ; that, all Acts, with the exception only of just such Acts as th. Local Legislatures could pass under section 92, whatever they might be, greater or less, would have gone to Parliament. True, that, while simplifying the mat- ter in one way, would have greatly complicated it in another, con- sidering the nature of some of the subjects given to the Local Legislatures by that section ; but, with the very elastic rules of construction that the Privy Council have applied to the present Act, applied to that, and the difficulties that would have existed in the imaginary Act, (which, however, is the Act as created by the Privy Council, and not l^y the Imperial Parliament), would have been easily surmounted. In sober seriousness, then, the British North America Act makes no such provision aE that if the Act of Parliament does not fall within one of the classes of subjects named in section 92, it is within the Legislative competevet/ of Parliament, What, in tlie clause named, it does provide, is. that it shall be lawful for Parliament "to make laws in relation to TO ALL MAT- TERS not condntj within Uie CLASSES OF SUBJECTS by this Act, (the ^nemss'ssmb 178 CANADIAN CONSTITUTIONAL ' \W. ili i J5. N". A. Act), assigned exclusively to the Legislatures of the PrO' vinces"* That is a very different thing from the Privy Council's state- ment of it. That, (we are treating now, mark, as they have done, only of the first part of the first clause of the 91st section, relied on by the Privy Council), excludes Parliament from legislating on all matters coming within the classes of subjects assigned to the Legislatures, (the plural, mark!), of the Provinces. Assigned "exclu- sively," 80, too, is the language of the Act. Then, that excludes Parliament from legislating on property and civil rights ; on local and private matters ; on licenses for revenue purposes, and en all the rest of the subjects named in sect. 92. Hence, as Parliament and civil rights ; as =1 * subjects assii^ned ex- i,■'.>:■■ yihia)- io subjects," &c., viz., ^,nu^rij a.uu v-.v.' ri ts, as we have shown ; to say nothing oi th atter cap . - also, as is too clear for question, a legislat y relating to local nd private matters in the Provinces, these cases are wrongly decided, AND ARE NOT JAW ! It remains now, from the Act itself, where it is much better stated, than is done in the horrid perversion of it, by the Privy Council, to state what the law is. ^ The Act then provides: — First, — That it shall be lawful for Parliament 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 the Act assigned exclusively to the Legislatures of the Provinces ; and Second, — Without restricting the right of Parliament to make laws for the peace, order and good government of Canada, as above named, in relation to all matters not coming within the classes of subjects by the Act assigned exclusively to the Legislatures of the *See ante, p. 9, el seq., for our construction of this clause, entirely irrespective and indepenaent of the holding of the Privy (^nuncil in the cascf: under exami- nation. " Tiie first part of the clause is clear. By it, Parliament has thf powet ' to make laws for the peace, oider and good government of Canada in relation to all matters not coming within the classes of subjects assigned exclusively to the Legislatures of the Provinces,' Here, then, Parliament is allowed to legislate, only, for the purposes named, cf 'he matter» that do not conie within thk classes OF SUBJECTS assigned to the Leg ilatures;" &c., Stv. - :vl. t)^ # 'S'l CANADIAN CONSTITUTIONAL lAW. 179 as »>^ Provinces ; Parliament may, notwithstanding anything in the Act, exclusively make laws in relation to all matters enumerated in section 91, whether these come within the subjects-matter enu- merated in sect. 92, or not ; and if any matters enumerated in sect. 91 do come within those enumerated in section 92, they shall not be deemed to do so, so as to prevent the eifectual, bona fide, legisla- tion by Parliament, on the subjects-matter enumerated In section 91. Then, it now remains, merely, for us, — summarizing from our entire discussion, — cat »gorically to answer the questions we placed before us at the beginning of this treatise, (see ante, p. 7); and, making the answers as much of the nature of definitions as the natare of the case will admit of, we say, as the law under the Act, all the badly decided cases in the Privy Council, or elsewhere, to the contrary, notwithstanding : — 1. The Local Legislatures have the right and power, in the first instance, (i. e., before Parliament has effectually legislated so as to affect the particular subject-matter in section 92), to legislate on all subjects-matter enumerated in the 92nd section, within these subjects-matter, not farther on them within the subjects-matter enumerated in section 91. For example, the Local Legislatures can legislate on the solemnization of marriage, but no farther than that within the subject of marriage ; on licenses, &c., under the 9th sub-section ; but no farther than that, on that subject, within the subject of regulation of trade and commerce ; on the subject of pro- perty and civil rights, but no farther than that to make it a legisla- tion on trade and commerce ; on bankruptcy and insolvency, or on any of the other subjects- matter enumerated in section 91 ; &c., &c, 2. Parliament has the right and power to legislate for the peace, order and good government of Canada, on all matters not coming within the classes of matters enumerated in section 91 ; and effectually and bona fide on all subjects-matter enumerated in section 91, no matter how much such effectual and bona fide legis- lation on such subjects-matter in section 91, may come within, interfere with, over-ride, over-bear, destroy, supersede or exclude the right and power of the Local Legislatures to legislate on the subjects -matter enunieratei^l in section 92. 3. After Pa'"liument has so effectually and bona fide legislated on the subjects-matter in section 91, as to have affbtJted the sub- jects-matter in section 92, the Ijoca] Legislatures have the right and power to legiHlate on tlK- subjects-matter enumerated in section 180 CANADIAN CONSTITUTIONAL LAW. I );' ■■' ^'f ilil f a 92, (not farther within the subjects-matter enumerated in section 91, as aforesaid), so far as such subjects-matter in section 92 remain unaffected, or not over-ridden and superseded by the effectual and bona fide legislation of Parliament on the subjects-matter in section 91 . For instanr what we have declined to say ! "In unrolling the scroll of public wickedness J jvn^t find inconopctency for offi,ce. If a ')/ tn struggle for an ojjidid position for which fie has no qualijication, and win tftat position, he cora- mits A CRIME against God and against society ! It is no sin for me to be ignorant of medical H(;ience, but if, ignorant of medical science, I set myself up among prof'ssional men .lud trifle with the lives of people, then the charlatanism becomes po^sitive knavery. It is no sin for me to be ignorant of machinery, but i knowing nothing about it, I attempt to take a steamer across to Southampton, and through darkness ami storm 1 hold the lives of hundreds of passengers, then all who are slain by that shipwreck may hold me accountable. .......... " We have had judges of courts who have given sentence to criminals in such inaccuracy of phraseology that the criminal at the bar has been more amused at the stupidity of the bench than alarmed at the prospect of his own punisl/ioent. "I ARRAIGN INCOMPETENCV FOR OFFICE AS ONE OF THE GREAT CRIMES OF THIS DAY IN PUBLIC PLACES." POSTSCRIPT. From the intimations I have received as to the demand for this work, I have felt myself warranted in having an edition issued very much larger than is usual, in this Dominion, for works of this class. If, notwithstanding this fact, the present edition should be soon exhausted, as it now seems probable that it will be, and the issuing of a second edition should become advisable, I propose, in addition to discussing all further Canadian Constitu- tional cases that may have been decided in the Supreme Court of IMAGE EVALUATION TEST TARGET (MT-3) /(9 A ^ f/- 1.0 I.I :^ 1^ 12.0 1.8 m I "1 116 y . ^ ^i 'T.^ w *><:»*■ '> ''# O W Photogiaphic Sciences Corporation 4 Ai"^ '^,i\ <> 23 WEST MAIN STREC^ WEBSTER, N.Y. )4SeO (716) 872-4S03 C^' 184 CANADIAN CONSTITUTIONAL LAW. Canada, and by the Judicial Committee of the Privy Council, to take up all the remaining cases in the different Province? of the Dominion, (Ontario, Quebec, Nova Scotia, P. E, Island, &c.), decided under the B. N. A. Act, 1867 ; and, subjecting them to the same course of impartial and* independent criticism that I have applied to the eases I have examinea,.by means of the crucible of criticism, separate the gold from the dross ; as I have striven to do in the present edition ; I trust not altogether without success. J.TRAVIS. Saint John, N. i3., June, 1884. Nil « 1 il >-> I i ttcil, to of the I, &c.), I to the I have cible of n to do ss. VIS. ^