UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY 
 
 ^ARSWELL CO., Limited 
 
 IC....L l.i I..I..KV
 
 i 3.
 
 . 
 
 THE LAW 
 
 THE CANADIAN CONSTITUTION 
 
 BY 
 
 W. H. P. CLEMENT, B. A., LL. B. (TOR.) 
 
 OF OSGOODE HALL, BARRISTER-AT-L.AW. 
 
 TORONTO : 
 THE CARS WELL Co. LTD., LAW PUBLISHERS, ETC. 
 
 1892.
 
 Entered according to Act of the Parliament of Canada, in the year 1802, by 
 WILLIAM HENRY POPE CLEMENT, at the Department of Agriculture.
 
 CONTENTS. 
 
 PAGE, 
 
 PREFACE v 
 
 TABLE OF CASES CITED vii 
 
 INDEX TO STATUTES xv 
 
 ADDENDA F.T CORRIGENDA xxii 
 
 PART I. INTRODUCTORY. 
 
 CHAP. I. Our Political System -A Comparative Examination .... 1 
 
 " II. The Pre-Confederation Constitutions 25 
 
 " III. What became of the Pre-Confederation Constitutions ? . . 43 
 
 PART II. THE RESULTS OF OUR COLONIAL STATUS. 
 
 CHAP. IV. What Imperial Acts affect Us ? 55 
 
 " V. The Sources of Our Law 75 
 
 VI. The Prerogatives of the Crown 129 
 
 " VII. Executive Checks on Colonial Legislation 145 
 
 " VIII. The Governor-General 150 
 
 " IX. Colonial Legislative Power 176 
 
 PART III. THE ORIGINAL GROUP. 
 
 CHAP. X. The Division of the Field 199 
 
 XI. Our Judicial System 223 
 
 XII. The B. N. A. Act, 1867 241 
 
 PART IV. SUBSEQUENT GROWTH. 
 
 CHAP. XIII. The North-West Territories 549 
 
 " XIV. Manitoba 585 
 
 XV. British Columbia C04 
 
 " XVI. Prince Edward Island 617 
 
 APPENDICES . . .625 
 
 . 796301
 
 PREFACE. 
 
 In this work, I have endeavored to exhibit, in as com- 
 pact a form as the wide scope of the subject permits, the 
 Law of the Canadian Constitution in reference as well to 
 our position as a Colony of the Empire, as to our self- 
 go vernment under the federal scheme of the B. N. A. Act. 
 
 No work upon the first branch of the subject is in 
 existence. The works of Clark and Merivale upon the 
 Colonies are very antiquated, and since their publication 
 the colonial system of the British Empire has to a very 
 great extent been recast. In collecting the authorities, 
 therefore, upon this branch of English jurisprudence into 
 one book, I shall, at least, have done something to lighten 
 the labor of those who have occasion to deal with questions 
 relating to our connection with the Mother Country. 
 
 Upon the second branch our internal self-government 
 under the B. N. A. Act the need of such a book as this 
 has been felt for some time. Mr. Doutre's work was pre- 
 pai'ed at a time when judicial leaning was very largely 
 toward minimizing the sphere of provincial autonomy, and 
 the decisions since that date have not only been numerous, 
 but those of the Judicial Committee of the Privy Council, 
 particularly, have given a very different aspect to the law 
 governing the relations of the provinces to the federal 
 government.
 
 VI PREFACE. 
 
 
 
 I have also endeavored to exhibit clearly the position of 
 the provinces and territories acquired since 1867, and have 
 referred as freely to the decisions of the Courts in those 
 more recent additions to the Dominion as to the authorities 
 in the older provinces. 
 
 A glance at the Table of Contents will suffice to dis- 
 close the general mode of treatment I have adopted, and 
 further remarks here would serve no good purpose. While, 
 fully sensible of many defects in the execution of this work, 
 I have strong hopes that it may prove useful, not merely to 
 the profession, but to all those who desire information in 
 reference to our rather unique form of government. 
 
 \V. H. P. CLEMENT. 
 
 TORONTO, 
 
 26th Sept., 1892.
 
 TABLE OF CASES CITED. 
 
 A. 
 
 Abraham v. Reg., 312 
 
 Adam, lie, 406 
 
 Adamson, Can. Bank of Comm. v., 
 
 GOO 
 
 Aitcheson v. Mann, 236, 402 
 Allen v. Hanson, 73, 394 
 v. Mnrray, 94 
 Redputh v., 179, 195, 227 
 Amer, Reg. v., 143, 254, 259, 303, 
 
 316 
 
 Anderson v. Dougall, 112 
 v. Dunn, 264 
 v. Kilbourn, 112 
 Keg. v., 185, 187 
 v. Todd, 96, 102, 112, 114, 
 
 120, 248 
 
 Andrew v. White, 39 
 Anders v. Montreal, 351, 373 
 Anglo Can. Mus. Pub. Co. v. Suck- 
 ling, 403 
 
 Apollo Candle Co., Powell v., 183 
 Appleby v. Reg., 93 
 Arbitration between Ontario and 
 
 Quebec, In re, 543 
 Armstrong v. McCutchin, 397 
 Arnold v. Arnold, 185 
 Arthur, Trustees R.C. Sep. Schools 
 
 v., 494 
 Attj.-Gcnl. 1'.. Col. v. Atty.-Genl. 
 
 Can., 307, 530*, 610 
 Can. v. Atty.-Genl. Out. 
 49, 129, 144, 173, 219, 
 223,306,319,321,342, 
 424. 431, 482, 489 
 v. Flint, 231 
 v. Montreal, 531 
 v. Toronto, 532 
 Hong Kong, v. Kwok-a- 
 
 Sing, 186, 189 
 N. S. Wales, McLeodv., 
 
 218 
 
 Out. v. Inter Bridge Co. 
 311 
 v. Mercer, 40, 219, 307, 
 
 525, 528, 529 
 v. Niagara Falls Inter. 
 Bridge Co., 311 
 
 Atty.-Genl. Quebec v. Col. Bldg. 
 Ass., 352, 449, 450, 
 455, 464 
 v. Queen's Ins. Co.. 
 
 214, 432, 446 
 v. Reid. 213, 316. 428, 
 
 433, 438 
 v. Richard, 601 
 v. Stewart, 92, 103, 113, 
 
 114 
 
 v. Radloff, 410 
 Auchterarder Case, 56 
 
 B. 
 
 Baldwin v. Roddy, 100 
 Bank N.S., Reg. v., 136, 151 
 
 Toronto v. Lambe, 22, 142, 
 201, 210, 213, 222, 250, 261, 
 328, 343, 348, 351, 364. 375, 
 376, 386, 401, 425, 430, 433, 
 43o, 454 
 of Upper Can. v. Bethu'ie, 
 
 69, 124 . 
 Barnes v. Reg., 126 
 Barrett, Winnipeg v., 493, 495, 501, 
 
 508 
 
 Barton v. Taylor, 263, 326 
 ; Bate, Mousseau v., 311, 402 
 I Bayley, Ganong v., 238, 315, 471 
 Beacon Ass. Co. Penley v., 57 
 Beard v. Steele, 374, 387 
 Beasley, q.t., v. Cahill, 124 
 Beique, Tarte v.. 481 
 j Belford, Smiles v., 67, 403 
 i Belisle, L'Union St. Jacques v., 
 202, 207, 211, 216, 350, 384, 392, 
 401, 419, 485 
 Bell, Graham v., 91 
 
 Keighley v., 161, 187 
 
 Doyle v", 290, 465 
 
 Reg. v., 117 
 
 Teleph. Co., In re, 230, 236, 
 
 312, 403 
 Bennett v. Pharma. Ass. (Quebec), 
 
 348, 373, 482, 487 
 Reg. v., 471 
 Thompson v., 78 
 Bentinck, Oliver v., 150, 155, 160 
 Bermuda, The, 68
 
 Vlll 
 
 TABLE OF CASES CITKI'. 
 
 Berry v. Berry, 90 
 
 Bertrand, Reg", v., 142 
 
 Bigge, Hill v., 150, 155, 156, 159 
 
 Birkett, Reg., ex. rel., v. McGuire, 
 
 445 
 
 Bittle, Reg. v., 415, 474 
 Black, Dow v., 213, 420, 425, 433, 
 
 452, 486 
 
 Blain, Ex parte, 185 
 Blake, Church v., 529 
 Blankard v. Galdy, 84 
 Bleeker v. Meyers, 122 
 Blouin v. Quebec, 362, 482 
 Boardman, Reg. v., 408, 412, 481 
 Boosev, Jeffreys v., 185, 186 
 Boucher, Re, 228 
 Bourgoin v. M. O. & O. Ry., 454 
 Bowman v. Middleton, 59 
 
 Stuart v., 131 
 
 Bradshaw, Reg. v., 416, 469 
 Brierly, Reg. v'., 191 
 Brituu, Med. &. Genl. Life Ass., 
 
 Re, 346, 401 
 
 Brome, Cooey v., 361, 441 
 Brook v. Brook, 186 
 Bruneau v. Massue, 231 
 Brush, Re Ridsdale and, 492 
 Bullock, Foote v., 124 
 Burah. Reg. v., 177, 182, 441, 481 
 Burdell, Reg. v., 89 
 Burslem, Lopez v., 185 
 Bustin, Ex parie, 94 
 Bush, Reg. v., 238 
 Butland v. Gillespie, 116 
 
 0. 
 
 Cahill, Beasley, </.(., v., 124 
 Calder, Re, 581 
 Caldwell v. Kinsman, 91 
 Cameron v. Kyte, 150, 157, 159, 195 
 Campbell v. Hall, 12, 30, 104, 131, 
 140 
 
 Jackson v., 89 
 Can. Bank of Comm. v. Adamson, 
 
 600 
 
 Canada Cent., Jones v., 459, 462 
 Can. N. W. Land Co., Lynch v., 
 
 386, 389, 425 
 C. P. fi., Re, 602 
 
 v. N. P. & Man, Ry., 454 
 C. S. Ry., Inter. Bridge Co. v., 184 
 
 v. Jackson, 375, 458 
 
 v. Phelps, 121 
 Cape Breton. In re, 27 
 Carson. Kielley v., 263, 326 
 Carr v. Fire Ass Co., 121 
 Carr, Reg. v., 185 
 
 Cent. Vermont Ry. Co. v. St. Johns, 
 351, 384 
 
 Chamberlain, Lawless v., 117 
 I Chandler, Reg. v., 342, 396, 398, 
 476 
 
 Chapleau, Molson v., 312 
 
 Chaveau, Cote v., 473 
 
 Chisholm, Shey v., 90 
 
 Choat, Shea v., 99 
 
 Church v. Blake, 529 
 
 v. Fenton, 404, 531 
 
 Citizens v. Parsons, 96, 105, 206, 
 207, 210, 213, 345, 351, 353, 356, 
 381, 407, 420, 455, 460, 464, 467, 
 511 
 
 Clark, Shoolbred v., 394, 459 
 
 v. Union Fire Ins. Co., 451 
 
 Clarkson v. Ont. Bank, 395, 397 
 v. Ryan, 516 
 Re Claxton, 582 
 
 Cleveland v. Melbourne, 489 
 
 Coll. of Phys., Reg. v., 67 
 
 Col. Bldg. Ass. v. Atty.-Genl. (Que- 
 bec), 353, 450, 455, 464 
 
 Commercial Bank, Moulson v., 108 
 Windsor v.. 387 
 
 Comyn v. Sabine, 152, 159 
 
 Connolly v. Woolrich, 581 
 
 Cooey v. Brome, 361, 441 
 
 Coote, Reg. v., 238, 470 
 
 Cooper, Smith v., 104 
 
 Cope v. Doherty, 185, 186 
 
 Corby v. McDaniel, 125 
 
 Cote v. Chaveau, 473 
 v. Watson, 401 
 
 Cowan v. Wright, 536 
 
 Craw v. Ramsay, 56, 184, 192, 24 5 
 
 Crawford v. Duffield, 434 
 
 C. V. Ry. Co. v. G. W. Ry. Co., 455 
 
 Crombie v. Jackson, 393 
 
 Cronyn v. Widder, 125 
 
 Curtis v. Hutton, 111 
 
 Cushing v. Dupuy, 216, 237. 253, 
 349, 391, 399, 402, 465 
 
 D. 
 
 Danaher v. Peters, 360, 364, 366 
 Dansereau, Ex parte, 327 
 Dart, The, 90 
 Davidson v. Boomer, 112 
 
 Queddy Riv. Driv. Boom 
 
 Co. v., 383, 489, 535 
 De Coste, Reg. v., 416 
 De Grosbois, Willard v. 285 
 i Derbyshire, Gabriel v., 65 
 Despard, Wilkins v., 155 
 De St. Aubyn v. Lafrance, 362
 
 TABLE OF CASES CITED. 
 
 IX 
 
 De Yeber, Re, 398 
 
 Diblee, Whittier v., 476 
 
 Dickson, Uniacke v., 77, 88, 90, 94, 
 
 127 
 
 Dillingham v. Wilson, 98 
 Doane v. McKenney, 90 
 Dobie v. Temporalities Board, 50, 
 
 200, 258, 319, 459, 535 
 Doherty, Cope v., 185, 186 ' 
 Donegani v. Donegani, 406 
 Dougall, Anderson v., 112 
 Dow v. Black, 213, 420, 425, 433, 
 
 452, 486 
 Doyle v. Bell, 290, 465 
 
 Fish v., 98 
 
 Dudman, Kinney v.. 396 
 Duffield, Crawford v., 434 
 Dulmage v. Douglas, 434 
 Duncan, Ex parte, 472 
 Dunn, Anderson v., 264 
 
 v. O'Rielly, 122 
 Dupuy, Cushing v., 216, 237, 253, 
 
 349, 391, 399, 402, 465 
 
 E. 
 
 Eden, Le Caux v., 83 
 
 Eldorado Union Store Co., Re, 394 
 
 Eli, Reg. v. 415 
 
 Ellis, Ex parte, 476 
 
 European & N. A. Ry. Co. v. 
 
 Thomas, 452. 
 Evans v. Hudon, 380 
 Eyre, Phillips v., 59, 140, 178, 195 
 
 Reg. v., 67, 159 
 Exchange Bank v. Reg., 136, 138. 
 
 141, 234, 245 
 
 F. 
 
 Fabrigas v. Mostyn, 152, 153, 155, 
 
 159 
 
 Fama, The, 69 
 Fanning, Meisner v., 87 
 Farewell, The, 231, 250, 384 
 Feuton, Church v., 404, 531 
 Ferguson v. Gibson, 113 
 Fire Ass., Carr v., 121 
 Fish v. Doyle, 98 
 Fisher, Georgian B. Trans. Co. v., 
 
 73 
 
 Flanagan, Gregory v., 100 
 Flint, Atty.-Genl. v., 231 
 ^oote v. Bullock, 124 
 Ford, Stark v., 116 
 Fraser v. Morrow, 69 
 Fredricton v. Reg., 206, 349, 303, 
 
 370, 407, 616 
 
 CAN. CON. B 
 
 Free v. McHugh, 492 
 Freeman v. Harrington, 91 
 
 v. Morton, 91 
 
 Friends Adventure, The, 69 
 Frontenac v. License Com., 436 
 Fuller, Gordon v., 56, 60 
 
 Hambly v., 112 
 Fulton v. James, 126 
 
 G. 
 
 Gabriel v. Derbyshire, 65 
 
 Galdy, Blaukard v., 84 
 
 Gamble & Boulton, Reg. v., 113, 
 
 327 
 
 Ganong v. Bayley, 238, 315, 471 
 Gardiner v. Gardiner, 61 
 Garrett v. Roberts, 122 
 Gaston v. Wald, 121 
 Georgian B. Trans. Co. v. Fisher, 73 
 Gibson, Ferguson v., 113 
 
 v. McDonald, 232, 315 
 Gilbert v. Sayre, 93 
 Gillespie, Butland v., 116 
 
 Mer. Bank v., 395 
 Glynn v. Houston, 155 
 Gold Commrs, Reg. v., 616 
 Goodall, Hall v., 69 
 Goodhue. In re, 59. 181, 189, 193, 
 
 462 
 
 Gordon v. Fuller, 56, 60 
 Gore, Wyatt v., 155 
 G. T. R., Monkhouse v., 375, 457 
 Graham v. Bell, 91 
 Grainger v. School Trustees, 494 
 Grant v. Protection Ins. Co., 91 
 G. W. Ry. Co., C. V. Ry. v., 455 
 Green, Holman v., 530 
 Gregory v. Flanagan, 100 
 Griffith v. Rioux, 370 
 
 Page v., 473 
 
 Paige v.. 482 
 
 Pope v., 472 
 
 H. 
 
 Haldimand, McBeth v., 159 
 Hall, Campbell v., 12, 30, 104, 131, 
 140 
 
 v. Goodall, 69 
 Hallock v. Wilson, 112 
 Hambly v. Fuller, 112 
 
 Ha * Allen v., 73, 394 
 
 Hi . v. McFadden, 90, 92 
 
 H; , v. Mayville, 493 
 
 H -on v. Spencer, 58 
 
 II .s and Hamilton, Re, 372 
 
 Hart v. Missisquoi, 361 
 
 v. Meyers, 122
 
 TABLE OF CASES CITED. 
 
 Harrington, Freeman v., 91 
 Harvey v. Lord Aylmer, 155 
 Hasen v. Rector St. James, 93 
 Hearle v. Boss, 122 
 Heartly v. Hearns, 100 
 Henderson, Scott v., 88, 91 
 Hesketh v. Ward, 93, 120 
 Hewston, Mercer v., 112 
 Hill v. Bigge, 150, 155, 156, 159 
 Hodge v. Beg.. 182, 202, 213, 261, 
 
 324, 358, 363, 364, 370, 425, 474, 
 
 480, 481, 486 
 
 Hodgins v. McNeil, 73, 118 
 Holman v. Green, 530 
 Holmes v. Temple, 350, 379 
 Horner, Beg. v., 470, 538 
 Houston, Glyun v., 155 
 Hudon, Evans v., 380 
 Hughes, McDiarmid v., 456 
 Hume, Whicker v., 114 
 Button, Curtis v., Ill 
 
 I. 
 
 Illidge, Santos v., 57 
 
 Inglis, Beid v., 125 
 
 Int. Bridge Co. v. C. S. By., 184 
 
 Atty.-Genl. v., 311 
 
 J. 
 
 Jackson, C. S. By. v., 375, 458 
 Crombie v., 393 
 v. Campbell, 89 
 James, Fulton v., 126 
 
 v. McLean, 58, 94 
 Jeffreys v. Boosey, 185, 186 
 Johnson v. Poyntz, 398, 476 
 Johnstone v. Parker, 117 
 Jones v. C. Cent. By., 459, 462 
 Kelly v., 93 
 Wilson, v. 94 
 
 K. 
 
 Kavanagh v. Phelon, 93 
 
 Keefe v. McLennan, 360, 361, 443 
 
 Keefe, Beg. v., 582 
 
 Kelly v. Jones, 63 
 
 Keighley v. Bell, 161, 187 
 
 Kennedy, O'Connor v., 119 
 
 v. Toronto, 531 
 Keyn, Beg. v., 57, 186, 187 
 Kielley v. Carson, 263, 326 
 Kilbourne v. Thompson, 264 
 
 Anderson v., 112 
 
 King's, Justices of, Beg. v.,360, 443 
 Kinney v. Dudman, 396 
 
 Kinsman, Caldwell v., 91 
 Kwok-a-Sing, Atty.-Genl. Hong 
 
 Kong v., 186, 189. 
 Kyte, Cameron v., 150, 157, 159, 195 
 
 L. 
 
 Lafrance, De St Aubyn v., 362 
 Lake, Beg. v., 415 
 Lambe, Bank Toronto v., 22, 142, 
 201, 210, 213, 222, 250, 
 261, 328, 313, 372, 383, 
 386, 401, 425, 433, 454 
 Molson v., 364 
 Landers, Woodworth v., 264 
 Landry, Theberge v., 171, 253, 286, 
 
 325, 336, 341, 464 
 Langlois, Valin v., 217, 231, 280, 
 
 287, 445 
 
 Lanty, Miller v.,87 
 Lawless v. Chamberlain, 117 
 Lawrence, Beg. v., 411 
 Law, Sheldon v., 126 
 Le Caux v. Eden, 83 
 Leith v. Willis, 100 
 Lenoir v. Bitchie, 129, 317 
 Leprohon v. Ottawa, 220, 342, 380, 
 
 414, 433, 434, 442 
 License Com. v. Frontenac, 436 
 v. Prince Ed., 436 
 Lindo v. Lord Bodney. 83 
 Liquor License Act, 1883, Re, 359 
 Liscombe, Whitby v., 113, 120 
 Local Option Act, Re, 361, 369, 370, 
 
 414, 440, 442, 446 
 Logan, Winnipeg v., 501 
 Longueuil Navi. Co. v. Montreal, 
 
 383, 431 
 
 Lopez v. Burslem, 185 
 Low, Boutledge v., 57, 73, 186 
 Lucas & McGlashan, Re, 409 
 L' Union St. Jacques v. Belisle, 202, 
 
 207, 211, 213, 216, 350, 352, 384, 
 
 392, 401, 419, 485 
 Lynch v. Can. N. W. Land Co., 
 
 386, 389, 425 
 Lyons, In re, 73 
 
 M. 
 
 M. falsely called S. v. S., 615 
 Machar, McKilligan v., 474 
 Maguire, Tai Sing v., 616 
 Maher v. Portland, 500 
 Mallette v. Montreal, 373 
 Mann, Aitcheson v., 236, 402 
 Marbury v. Madison, 193 
 Maritime Bank v. Beg., 136, 138, 142
 
 TABLE OF CASES CITED. 
 
 XI 
 
 Maritime Bank v. Receiver-Genl. 
 of N. B,, 144, 
 241, 245, 252, 
 255, 261, 301, 
 307, 318, 324, 
 325, 342, 419, 
 443, 529 
 
 Maryland, McCulloch v., 178, 194 
 Massey Manf. Co., Re, 312 
 Massue, Bruneau v,, 231 
 Mayville, Harding v., 493 
 Mayor and Aid. of Norwich, Reg. 
 
 v., 84 
 
 Meisner v. Fanning, 87 
 Melbourne, Cleveland v., 489 
 Mercer v. Atty.-Genl. Ont., 40, 219, 
 
 307,' 525, 528 
 v. Hewston, 112 
 Reg. v. 124 
 Merchants B. v. Smith, 387 
 
 v. Gillespie, 395 
 Meth. Church, Smith v., 116 
 AJeyers, Bleeker v., 122 
 
 Hart v., 122 
 
 Middleton, Bowman v., 59 
 Milford, Reg. v., 126 
 Miller v. Lanty, 87 
 Mississquoi, Hart v., 361 
 Mohr, Reg. v., 351, 449 
 Molson v. Chapleau, 312 
 
 v. Lambe, 364, 430 
 Monkhouse v. G. T. R,, 375, 457 
 Montreal, Longueuil N. Co. v., 383, 
 
 431 
 O. d-O. Ry., Bourgoinv., 
 
 454 
 
 Atty.-Genl. Can. v., 531 
 Angers v., 351, 373 
 Ware. Co., Royal Can. 
 
 Ins. Co. v., 389 
 Moodie, Reg. v., 124 
 Moore v. Moore, 91 
 Morrow, Fraser v., 69 
 Morrison, Wheelock v., 91 
 Morton, Freeman v., 91 
 Mostyn, Fabrigas v., 161, 153, 155, 
 
 159 
 
 Moulson v. Comm. Bank, 108 
 Mount & Morris, Reg. v., 72 
 Mosseau v. Bate, 311, 402 
 Mowat v. McPhee, 73 
 Mulligan, Sinclair v., 581, 598 
 Murdoch v. Windsor & Ann. Ry., 
 
 399 
 
 Murray, Allen v., 94 
 Musgrave v. Pulido, 150, 158 
 Muskoka Mill Co. v. Reg., 312 
 Munn v. McCannell, 399, 537 
 
 Me. 
 
 Macdonell v. Macdonald, 335 
 Macmillan v. S W. Boom Co., 382 
 Macnamara, Wall v., 155 
 McAlmon v. Pine, 397 
 McArthur v. N. & P. June. Ry., 458 
 McBeth v. Haldimand, 159 
 McCannell, Munn v., 399, 537 
 McClanagan v. St. Ann's Mut. Bldg. 
 
 Soc., 401 
 
 McCormick, Reg. v., 122 
 McCulloch v. Maryland, 178, 194 
 McDaniel, Corby v.. 125 
 McDiarmid v. Hughes, 456 
 McDonald, Gibson v., 232, 315 
 
 v. McDougall, 109 
 
 v. Ronan, 89 
 
 Smyth v., 88 
 McDonell v. Smith, 335 
 McDougall, Reg, v., 365 
 
 v. Union Navi. Co., 382 
 McFadden, Hanington v., 90 
 
 Reg v., 89 
 
 McGowan, Smith v., 65 
 McGuire v. Reg., ex rel. Birkett, 445 
 
 Wilson v., 232 
 McHugh, Free v., 492 
 McKenny, Doane v., 90 
 McKeown, Wheelock v., 87 
 McKilligan v. Machar, 474 
 McLaughlin, Rex v., 79, 92 
 McLean, James v., 58, 94 
 McLennan, Keefe v., 360, 361, 443 
 McLeod v. Atty.-Genl. N. S. W 
 
 192, 218 
 McNeil, Hodgins v., 73, 118 
 
 Nan-e-quis-a Ka, Reg. v., 580 
 Natal, In re Lord Bishop of, 30, 135, 
 
 141 
 
 Neville, Union Bank v., 396 
 New B. Receiver Genl., Maritime 
 
 Bank v., 144, 241, 252, 255, 261, 
 
 301, 307, 318, 324, 342, 419, 443, 
 
 529 
 Niagara Falls Inter. Bridge Co., 
 
 Atty.-Genl. v., 311 
 Niboyet v. Niboyet, 57, 186 
 Noel v. Richmond, 362 
 Normand v. St. Lawrence Navi. Co., 
 
 382 
 North Perth, In re, 240, 286, 463, 
 
 465 
 
 North. & Man. Ry., C. P. R. v.,454 
 N. & P. June. Rv., McArthur v., 
 
 458
 
 Xll 
 
 TABLE OF CASES CITED. 
 
 O. 
 
 O'Brien v. Reg., 312 
 O'Connor v. Kennedy, 119 
 Oliver v. Bentinck, 150, 155, 160 
 Ont. Bank, Clarkson v., 395, 397 
 Ordnance H. M. Officers, Tully v., 
 
 184 
 
 O'Regan v. Peters, 366 
 O'Eielly, Dunn v., 122 
 Orillia, Slavin v. 359, 439, 443, 487 
 O'Rourke, Reg. v., 202, 417 
 Ottawa, Leprobon v., 220, 342, 380, 
 
 414, 433, 442 
 
 P. 
 
 Page y. Griffith, 473 
 Paige v. Griffith, 482 
 Papin, Ex parte, 482 
 Parker, Johnstone v., 117 
 Parsons, Citizens v., 96, 105, 206, 
 
 207, 210, 213, 349, 353, 407, 420, 
 
 455, 460, 464, 467, 511 
 Pattee, Reg. v., 402 
 Peake v. Shields, 189. 235, 394 
 Pepley v. Beacon Ass. Co., 57 
 Pennock, Stinson v., 121 
 Perkins, Ex parte, 471 
 Peters, Danahers v., 360. 364, 366 
 
 O'Regan v,, 366 
 Pharma. Ass. Quebec, Bennett v., 
 
 348, 373, 482, 487 
 Phelon, Kavanagh v., 93 
 Phelps, C. S. Ry. v., 121 
 Phillips v. Eyre, 59, 140, 155, 178, 
 
 195 
 Picton, The, 236, 384 
 
 Reg. v., 139 
 Pigeon v. Recorder's Court, 373, 
 
 447 
 
 Pillow, Ex parte, 373, 487 
 Plante, Reg. v., 417 
 Plummer Wagon Co. v. Wilson, 433 
 Pope v. Griffith, 472 
 Porter, Reg. v.,89 
 Portland, Maher v., 500 
 Poulin v. Quebec, :-!62 
 Powell v. Appollo Candle Co., 183 
 Poyntz, Johnson v., 398, 476 
 Prince Ed., License Com. v., 436 
 Protection Ins. Co., Grant v., 91 
 Providence, The, 68 
 Pulido, Musgrave v., 150, 158 
 Purdy, q t., v. Ryder, 124 
 
 Q. 
 
 Quebec, Blouin v., 362, 482 
 
 Queddy Riv. Driving Boom Co. v. 
 Davidson, 383, 459, 535 
 
 Queen's Ins. Co., Atty.-Genl. Que- 
 bec v., 214, 432, 446 ' 
 
 Quirt v. Reg., 354, 392, 464, 531 
 
 R. 
 
 ; Radloff, Atty.-Genl. v., 410 
 | Ramsay, Craw v., 56, 184, 192, 245 
 I Ransom, Richardson v., 471 
 Raphael v. Verelst, 150 
 Recorder's Court, Pigeon v., 373, 447 
 Rector St. James, Hasen v., 93 
 Receiver G. of N, B., Maritime B. 
 v,, 144, 241, 245, 252, 255, 261, 301, 
 307, 318, 324, 325, 342, 419, 443, 
 529 
 
 Redfield v. Wickham Corp., 459 
 Redpath v. Allen, 179, 195, 227 
 Reed v. Atty.-Genl. Quebec, 213, 
 
 316, 428, 433, 438 
 Reg. v. Amer, 143, 254, 259, 303, 
 
 316 
 
 v. Anderson, 57, 185, 187 
 v. Appleby, 93 
 v. Bank N. S., 136, 151, 303 
 v. Barnes, 126 
 v. Bell, 117 
 v. Bennett, 471 
 v. Bertraud, 142 
 v. Bittle, 415, 474 
 v. Boardman, 408, 410, 412, 481 
 v. Bradshaw, 416, 469 
 v. Brierly, 191, 193, 195 
 v. Burah, 177, 182, 441, 481 
 v. Bush, 238 
 v. Carr, 185 
 
 v. Chandler, 342, 396, 398, 476 
 v. Coll. of Phys., 67 
 v. Coote, 238, 470 
 v. De Coste, 416 
 . Eli, 415 
 . Eyre, 67, 159 
 . Foley, 418 
 
 . Gamble & Boulton, 113, 327 
 . Gold Commrs., 616 
 . Homer, 470, 538 
 v. Justices of Kings, 360. 443 
 v. Keefe, 582 
 v. Keyu, 57, 186, 187 
 v. Lake, 415 
 v. Lawrence, 411 
 v. Mayor and Aid. of Nor.vich, 
 84
 
 TABLE OF CASES CITED. 
 
 Xlll 
 
 Reg. v. McCormick, 122 
 
 v. McDougall, 365 
 
 v. McFadden, 89 
 
 v. Mercer, 124, 125 
 
 v. Milford, 126 
 
 v. Mohr, 351, 449 
 
 v. Moodie, 124 
 
 v. Mount & Morris, 72 
 
 v. Nan-e-quis-a Ka, 580 
 
 v. O'Rourke, 202, 417 
 
 v. Pattee, 402 
 
 v. Picton, 139 
 
 v. Plante, 417 
 
 v. Porter, 89 
 
 v. Quirt, 354, 392, 464, 531 
 
 v. Reno, 471, 537 
 
 v. Robertson, 351, 385, 414, 
 474, 480, 488, 531 
 
 v. Roblin, 117 
 
 v. Roddy, 408, 409, 415 
 
 v. Row, 122 
 
 v. Schram & Anderson, 65, 379 
 
 v. Seeker, 117 
 
 v. Severn, 194, 364, 430, 448 
 
 v. Shaw, 161, 412 
 
 v. Sherman, 60 
 
 v. Slavin, 60 
 
 v. Taylor, 67, 214, 229, 374, 432 
 
 v. Toland, 228, 236, 469 
 
 v. Wason, 217, 410, 413, 415, 
 474, 478, 487 
 
 v. Wellington, 354, 388, 531 
 
 v. Wing Chong, 616 
 
 Abraham v., 312 
 
 Exchange B. v., 136, 138, 141 
 
 Fredricton v., 206, 349, 363, 
 370, 407, 616 
 
 Hodge v., 182, 202, 213, 216, 
 324, 358, 363, 364, 370, 425, 
 474, 480, 481, 486 
 
 Maritime B. v., 136, 138, 142 
 
 Muskoka Mill Co. v., 312 
 
 O'Brien v., 312 
 
 Riel v., 183, 347, 555 
 
 Sproule v., 615 
 
 St. Cath. Milling Co. v., 307, 
 
 404, 438, 524, 526 
 Reid v. Inglis, 125 
 Renand, Ex parte, 350, 496, 509 
 Rex. v. McLauglin, 79, 92 
 
 v. Vaughan, 58 
 Reynolds v. Vaughan. 615 
 Richard, Atty.-Genl. v., 601 
 Richmond, Noel v., 362 
 Richardson v. Ransom, 471 
 Ridsdale & Brush, Re, 492 
 Ritchie, Ex parte, 94 
 
 Lenoir v.. 129, 317 
 Roberts, Garrett v., 122 
 
 Roddy, Baldwin v., 100 
 Rodney Ld., Lindo v., 83 
 Ronan, McDonald v., 89 
 Ross, Hearle v., 122 
 
 v. Torrance, 388 
 Routledge v. Low, 57, 73. 186 
 R. C. Sep. Schools, In re, 223, 494 
 Trustees of, v. 
 
 Arthur, 494 
 Royal Can. Ins. Co. v. Mont. Ware. 
 
 Co., 389 
 Russell v. Reg., 202, 210, 213, 216, 
 
 345, 348, 358, 363, 414, 431, 445, 
 
 465, 486 
 
 Ryan, Clarkson v., 516 
 Ryder, Purdy, q.t., v., 124 
 
 s. 
 
 Sabine, Comyn v., 151, 159 
 Santos v. Illidge, 57 
 Sawyer, Tarratt v., 91 
 Say re, Gilbert v., 93 
 Schram & Anderson, Reg. v., 65, 379 
 Schultz v. Winnipeg, 388 
 School Trustees, Board of, v. Grain- 
 ger, 494 
 
 i Scott v. Henderson, 89, 91 
 Seeker, Reg. v., 117 
 ' Sep. Schools, In re R. C., 223, 494 
 i Severn v. Reg., 194,364, 430, 448 
 ; Shaw, Reg. v., 161, 412 
 ! Shea, v. Choate, 99 
 | Sheldon v. Law, 126 
 '. Sherman, Reg. v., 60 
 Shey v. Chisholm, 90 
 Shields, Peak v., 189, 235, 394 
 Shoolbred v. Clark, 394, 459 
 , Simmons & Dalton, In re, 240, 286 
 Sinclair v. Mulligan, 581, 598 
 Slavin v. Orillia, 359, 439, 443, 487 
 
 Reg. v., 60 
 
 Smiles v. Belford, 67, 403 
 Smith, Ex parte, 232, 346 
 v. Cooper, 114 
 McDonell. v. 335 
 v. McGowan, 65 
 v. Meth. Church, 116 
 Merchants B. v , 387 
 Torrance v., 122 
 Smyth v. McDonald, 88 
 S. W. Boom Co., McMillan v., 382 
 Spencer, Harrison, v., 58 
 Sproule v. Reg., 615 
 Squier, Rf , 73, 514 
 St. Catherines Mill Co. v. Reg., 307, 
 
 404, 438, 524, 526 
 Stark v, Ford, 116
 
 XIV 
 
 TABLE OF CASES CITED. 
 
 St. Ann's Mut. Bid. Soc., McClana- 
 
 gan v., 401 
 
 St. Johns, Cen. Ver. Ey. v., 351, 384 
 St. Lawr.Nav. Co., Normand v., 382 
 Steele, Beard v., 374, 387 
 Stewart, Atty.-Genl. v., 94, 103, 111, 
 
 113, 114 
 
 Stinson v. Pennock, 121 
 Stuart v. Bowman, 131 
 Suckling, Anglo Can. Mus. Pub. Co. 
 
 v. 403 
 Suite, Three Rivers v., 362, 364, 439, 
 
 443, 445 
 Sussex Peerage Case, 57, 186 
 
 T. 
 
 Tai Sing v. Maguire, 616 
 Tarratt v. Sawyer, 91 
 Tarte v. Beique, 481 
 Taylor, Barton v., 263, 326 
 
 Reg. v., 67, 214, 229, 374, 432 
 Temple, Holmes v., 350, 379 
 Temporalities Board, Dobie v., 50, 
 
 200, 258, 319, 459, 535 
 Theberge v. Landry, 171, 253, 286, 
 
 289, 325, 336, 341, 464 
 Thomas, European & N. A. Ry. v., 
 
 452 
 Thompson v. Bennett, 73 
 
 Kilbourn v., 264 
 Thrasher Case, 616 
 Three Rivers v. Suite, 362, 364, 439, 
 
 443 
 Todd, Anderson v., 96, 102, 112, 114, 
 
 120, 248 
 
 Toland, Reg. v., 228, 236, 469 
 Toronto, Atty.-Genl. Can. v., 532 
 
 Kennedy v , 531 
 Torrance, Ross v., 388 
 v. Smith, 122 
 Tully v. Officers H. M. S. Ordnance, 
 
 184 
 
 u. 
 
 Uniacke v, Dickson, 77, 88, 90, 94, 
 127 
 
 Union Bank v. Neville, 396 
 
 Fire Ins. Co., Clarke v., 451 
 Nav. Co., McDougall v., 382 
 
 V. 
 
 Valin v. Langlois, 217, 231, 232, 
 
 280, 287, 288, 445 
 Yaughan, Rex v.. 58 
 Yaughan, Reynolds v., 615 
 Verelst, Raphael v., 150 
 
 w. 
 
 Wald, Gaston v., 121 
 Wall v. MacNamara, 155 
 
 Reg. v., 161 
 Wallace-Huestis Grey Stone Co., 
 
 He, 400 
 Ward, Hesketh v., 93, 120 
 
 v. Reid, 416 
 Wason, Reg. v., 217, 410, 474, 478, 
 
 487, 582 
 
 Watson, Cote v., 401 
 Way v. Yally, 152 
 Wellington, Reg. v., 354, 388, 531 
 Western Counties Ry. Co. v. Wind- 
 sor & Ann. Ry., 531 
 Wetherell & Jones, I;i re, 232, 346 
 Wheelock v. Morrison, 91 
 v. McKeown, 87 
 Whicker v. Hnme, 114 
 Whitby v. Liscombe, 113, 120 
 White, Andrew v., 39 
 Whittier v. Diblee, 476 
 Wickham Corp., Redfield v., 459 
 Widder, Cronyn v., 125 
 Wilcox v. Wilcox, 131 
 Wilkins v. Despard, 155 
 Willett v. De Grosbois, 285 
 Williams, In re, 538 
 Williamson, Ex parte, 471 
 Willis, Leithv., 100 
 Wilson, Dillingham v., 98 
 Hallockv.. 112 
 v. Jones, 94 
 v. McGuire, 232 
 Plummer Wagon Co. v., 
 
 433 
 Windsor & Ann. Ry., Murdoch v.. 
 
 399 
 
 Co., Re, 400 
 West. Coun- 
 ties v., 531 
 v. Com. Bank. 387 
 Wing Chong, Reg. v., 616 
 Winnipeg v. Baurett, 493, 495, 501, 
 
 508 
 
 v. Logan, 501 
 Schultz v., 388 
 Woodworth v. Landers, 264 
 Woolrich, Connolly v., 581 
 Worms, Ex parte, 538 
 Wright, Cowan v., 536 
 Wyatt v. Gore, 155 
 
 Y. 
 
 Tally, Way v., 152
 
 TISTDEX TO STATUTES. 
 
 (a) IMPERIAL STATUTES. 
 
 Magna Charta, 87, 90 
 Hen. III. (Charters of), 87 
 13 Ed. I. c. 18 (Elegit), 91 
 
 27 Ed. III. c. 17 (Stat. of Staples), 90 
 
 28 c. 3 ; 89 
 
 1 Kich. II. c. 12 (Escape), 94 
 
 2 Hen. IV. c. 7 (Nonsuit), 91 
 8 Hen. VI. c. 29 ; 69 
 
 7 Hen. VIII. c. 4 (Damages in Replevin), 91 
 
 8 c. 16 ; 87, 88 
 18 c. 6 ; 87, 88 
 
 25 c. 22 (Marriage), 118 
 
 27 c. 10.(Statute of Uses), 00, 92 
 
 28 c. 7 " 118 
 _>.< c. 16 " 118 
 
 31 c. 1 (Partition), 90 
 
 32 c. 9 ; 91, 124 
 
 32 c. ii2 (Partition), 90 
 
 32 c. 38 (Marriage), 118 
 82 c. 39;lf3 
 
 33 c. 23 ; 161 
 
 33 c. 39 ; (Crown Debts), 78 
 
 5-6 Ed. VI. c. 16 (Sale of Offices), 124 
 5 Eliz. c. 4 (Apprenticeship), 98 
 13 c. 4 (Crown Debts), 78 
 
 13 c. 5 (Fraudulent Conveyances), 91, 97 
 
 18 c. 5 (Actions by Informers), 122 
 
 29 c. 4 (Sheriffs' Fees), 93 
 43 c. 6 (Costs), 93, 121 
 
 21 Jac. I. c. 14 ; 88 
 
 16 Car. I. c. 10 (Star Chamber), 116 
 
 12 Car. II. c. 18 (Navigation Act), 68 
 
 13 c. 2 (Costs), 93, 121 
 23 c. 7; 35
 
 Xvi INDEX TO STATUTES. 
 
 1 Wm. & Mary, c. 18 ; 125 
 
 1 st. 2, c. 2 (Bill of Eights), 133, 244 
 
 11-12 Wm. III. c. 12 (Governors), 152, 160 
 12-13 c. 2 (Act of Settlement), 244 
 
 1 Anne, st. 2, c. 6 (Escape), 120 
 
 4 c. 16 (Bail Bonds), 93 
 
 5 c. 9 (Escape), 120 
 
 6 c. 7 (Succession Act), 134, 244 
 
 6 c. 11 (Union Act, Scot.), 212, 357 
 
 2 Geo. IT. c. 23; 58 
 
 5 c. 7; 60-5 
 
 9 c. 5 (Fortune Telling), 126 
 
 9 c. 36 (Mortmain), 93, 101-116 
 
 13 c. 18 (Certiorari), 89, 94 
 
 14 c. 17 (Nonsuit), 93 
 
 14 c. 37 (Bubble Act), 69-72 
 
 20 c. 19 (Apprenticeship), 99 
 22 c. 40 ; 100 
 
 22 c. 46 (Attorneys), 122 
 
 26 c. 33 (Marriage), 116-9, 580 
 
 9 Geo. III. c. 16; 122 
 14 c. 78; 121 
 
 14 c. 83 (Quebec Act, 1774), 34, 65, 69, 70, 95, 96, 104, 105, 
 
 106, 122, 123, 212, 408. 461 
 14 c. 88 (Duty on Hum, etc.), 34, 36, 39 
 
 18 c. 12 (Renunciation Act), 36, 67 
 
 19 c. 70 (Certiorari), 100 
 
 21 c. 49 (Lord's Day Act), 126 
 
 22 c. 75 (Eemoval of Colonial Officers), 73, 514 
 26 c. 86; 122 
 
 28 c. 49; 122 
 
 31 c. 31 (Constitutional Act, 1791f, 28, 34, 39, 60, 61, 66, 94, 
 
 105, 123, 257 
 
 39-40 c. 9 (Thellusson Act), 58 
 
 42 c. 85 (Colonial Officers), 160 
 
 49 c. 123 ; 68 
 
 451 c. 126 (Sale of Offices), 124 
 
 59 c. 69; 65 
 
 59 c. 96 (Apprenticeship) 98 
 
 (> Geo. IV. c. 91 ; 69 
 
 6 c. 114 (Repugnancy), 63, 64, 65 
 11 Geo. IV. & 1 Wm. IV. c. 60 ; 73 
 
 1-2 Wm. IV. c. 23 ; 39, 40 
 5-6 c. 54; 73 
 
 3-4 Vic. c. 35 (Union Act, 1840) 28, 40, 41, 54, 6G, 247, 257, 298, .r_'~> 
 5 c. 11; 81
 
 INDEX TO STATUTES. xvii 
 
 5-6 Vic. c. 
 
 45 (Copyright), 73 
 
 5-6 
 
 c. 
 
 76 
 
 (New South Wales), 54 
 
 5-6 
 
 c. 
 
 120 
 
 (Newfoundland), 54 
 
 6-7 
 
 c. 
 
 29 
 
 ; 40 
 
 7-8 
 
 c. 
 
 74 
 
 (New S. Wales), 54 
 
 9-10 
 
 c. 
 
 94 
 
 ; 40, 56 
 
 10-11 
 
 c. 
 
 44 
 
 (Newfoundland), 54 
 
 10-11 
 
 c. 
 
 71 
 
 (Civil List), 40, 526 
 
 12-13 
 
 c. 
 
 29 
 
 ; 40 
 
 12-13 
 
 c. 
 
 96 
 
 ; 72 
 
 12-13 
 
 c. 
 
 106 
 
 ; 69 
 
 13-14 
 
 c. 
 
 59 
 
 (New South Wales), 54 
 
 15-16 
 
 c. 
 
 39 
 
 ; 40 
 
 17-18 
 
 c. 
 
 104 
 
 (Merchants Shipping), 73, 187 
 
 17-18 
 
 c. 
 
 118 
 
 ; 40, 356, 421, 526 
 
 18-19 
 
 c. 
 
 55 
 
 (Victoria), 54 
 
 18-19 
 
 c. 
 
 67 
 
 (Bills of Exchange), 600 
 
 18-19 
 
 c. 
 
 90 
 
 ; 601 
 
 24-25 
 
 c. 
 
 44 
 
 (Queensland), 54 
 
 26-27 
 
 c. 
 
 84 
 
 (Colonial Constitutions), 421 
 
 28-29 
 
 c. 
 
 63 
 
 (Colonial Laws Validity Act, 1865), 7, 57, 59, 65, 67, 75 
 
 
 
 
 148, 176, 179, 186, 192, 264, 280, 327, 350, 379, 422, 627 
 
 30-31 
 
 c. 
 
 3 
 
 (B. N. A. Act, 1867), 241-546 
 
 31-32 
 
 c. 
 
 105 
 
 (Rupert's Land Act, 1868), 551 
 
 33-34 
 
 c. 
 
 52 
 
 (Extradition), 538 
 
 34-35 
 
 c. 
 
 28 
 
 (B. N. A. Act, 1871), 183, 271, 272, 347, 555, 585 
 
 34-35 
 
 c. 
 
 83 
 
 ; 262 
 
 38-39 
 
 c. 
 
 38 
 
 (Parliament of Canada Act, 1875), 244, 262 
 
 49-50 
 
 c. 
 
 35 
 
 (B. N. A. Act, 1886), 244, 272, 282, 582 
 
 (b) DOMINION OF CANADA. 
 
 31 Vic. c. 17 (Bank of U. C.), 354 
 
 c. 40 (Militia), 379 
 
 c. 58 ; 382 
 
 c. 76 (Evidence on Commission), 232, 34(1 
 31-32 c. 24 ; 202 
 
 32-33 c. 3 (Rupert's Land Act), 552, 555, 580, 597 
 
 c. 23 (Perjury), 189 
 
 c. 31 (Actions against Justices), 416 
 
 c. 39 (Costs in Actions against Justices), 476 
 
 33 c. 3 (Manitoba Act), 500, 508, 5-53, 555, 588, et seq. 
 c. 26 (Perjury), 189 
 
 c. 40 (Bank of U. C.). 354 
 
 34 c. 5 (Banking), 387
 
 XV111 INDEX TO STATUTES. 
 
 34 Vic. c. 16 (N. W. T.), 554 
 
 35 c. 26 (Patent Act), 230, 402 
 
 36 c. 37 (British Columbia), 609 
 36 c. 1; 262 
 
 c. 5 (N. W. T.), 555 
 
 36 c. 28 (Controverted Elections), 232, 289, 290 
 c. 34 (N. W. T.), 556 
 
 c. 35 " 557 
 
 c. 41 ; 531 
 
 37 c. 9 (Elections), 286 
 
 c. 10 (Controverted Elections), 217, 232, 289 
 
 38 c. 11 (Supreme Court Act), 229 
 
 c. 16 (Insolvent Act, 1875), 190, 394 
 c. 49 (N. W. T.), 557, 562 
 40 c. 7 (N. W. T.), 558, 559 
 
 40 c. 6 (Manitoba), 587 
 
 41 c. 16 (Canada Temp. Act), 363, 369, 415, 436, 444, 445, 465, 4 6 
 43 c. 25 (N. W. T.), 561 
 
 43 c. 67 ; 450 
 
 44 c. 14 (Manitoba), 587, 602 
 
 45 c. 28 (N. W. T.), 561 
 
 46 c. 30 (Dom. Liquor License Act, 1883), 359, 366 
 
 47 c. 17 (Evidence), 474 
 47 c. 23 (N. W. T.) 561 
 
 48-49 c. 1 (Deputy Speaker), 293. 
 
 18-49 c. 51 (N. W. T.), 51 
 
 R. S. C. (1886) c. 5 (Electoral Franchise), 230, 240, 285, 286 
 
 c. 8 (Dominion Elections), 170, 285 
 
 c. 9 (Controverted Elections), 285 
 
 c. 10 (Election Enquiry), 285 
 
 c. 11 (Parliament), 264-7, 279, 283, 292 
 
 c. 12 (Manitoba), 589 
 
 cc. 21-41 (Ministers), 167 
 
 cc. 28-29 (Finance), 377 
 
 c. 30 (Currency), 380 
 
 cc. 32-34 (Customs, etc.), 377 
 
 c. 41; 260 
 
 c. 47 (Manitoba), 589, 602 
 
 c. 50 (N. W. T.), 510, 562. et seq. 
 
 c. 53 (Kee%vatin), 563 
 
 c. 70 ; 355 
 
 c. 109 (Railway Act), 458 
 
 c. 120 (Banking), 387 
 
 c. 127 (Interest) , 389 
 
 c. 129 (\Vinding-up), 394 
 
 c. 135 (Supreme Court), 223, 229
 
 INDEX TO STATUTES. xix 
 
 R. S. C. (1886) c. 139 (Evidence), 474 
 
 c. 144 (English Criminal Law), 97, 128, 616 
 c. 158 ; 413 
 c. 161 (Bigamy), 191 
 c. 174 (Grim. Procedure), 417, 473 
 51 c. 19 (N. W. T.), 564, et scq. 
 51 c. 33 (Manitoba), 600-1 
 53 c. 33 (Bills and Notes) 388 
 
 54-55 c. 22 (N. W. T.), 564, et seq. 
 55-56 c. 11 (Redistribution, 1892), 283, 285, 297, 590 
 
 (c) UPPER CANADA (1791-1840). 
 
 32 Geo. III. c. 1 (Introduction of English Law), 61, 62, 63, 69, 96, 
 
 100, 101, 102, 105, 106, 108, 109, 111, 113, 114, 117, 
 118, 119, 121, 125 
 
 33 c. 5 (Marriage), 118 
 38 c. 4 " 118 
 
 40 c. 1 (English Criminal Law), 69, 70, 71, 96, 106, 118, 
 
 123, 125, 126 
 
 2 Geo. IV. c. 11 (Marriage), 118 
 11 c. 36 ; 118 
 
 3 Win. IV. c. 1 ; 101 
 
 3-4 Vic. c. 78 (Church Temporalities Act), 110 
 
 (d) PROVINCE OF CANADA (1840-1867). 
 
 6 Vic. c. 31 ; 40 
 9 c. 114 ; 40 
 
 23 c. 17 (Elections), 285 
 
 26 c. 5 (R. C. Separate Schools), 491 
 
 27-28 c. 18 (Dunkin Act, 1864), 361, 369, 436 
 
 (e) ONTARIO. 
 
 C. S. U. C. c. 14 (Court of Impeachment), 514 
 
 34 Vic. c. 3 (Controverted Elections), 290 
 R. S. O. (1877) c. 42 (Grouping Act), 232-3 
 
 c. 181 (Liquor License Act), 358 
 
 49 Vic. c. 28 (Workmen's Compensation for Injuries), 458 
 R. S. O. (1887) c. 7 (Representation), 329 
 c. 11 (Assembly), 328, 334 
 c. 44; 223 
 c. 61 (Evidence in Prosecutions), 474
 
 XX INDEX TO STATUTES. 
 
 R. S. O. (1887) c. 67 (Arrest for Debt), 190 
 c. 93 (English Law), 97, 127 
 c. 124 ; 395 
 c. 125 ; 225 
 
 53 Vic. c. 13 ; 369 
 
 c. 18 (Trial of Forgery Cases), 236, 469 
 c. 56 (Local Option), 361, 369, 370, 414, 442 
 
 54 c. 46 " " 369 
 
 (f) QUEBEC. 
 
 C. S. L. C. (1859) c. 109 ; 316 
 34 Vic. c. 2 ; 472 
 36 c. 5 (Controverted Elections), 253, 288, 290 
 
 38 c. 64 (Temporalities Fund), 536 
 c. 74 ; 862 
 
 39 c. (Pharmacy Act), 373, 482, 487 
 
 c. (Controverted Elections), 253, 288 
 c. 7 (Insurance Licenses), 429, 446 
 43-44 c. 9 (Stamps), 316 
 
 R. S. Q. (1888) Art. 124 (Assembly), 328 
 
 Art. 136-144 ; 334 
 53 Vic. c. 3 (Representation), 332 
 
 (g) NOVA SCOTIA. 
 
 33 Geo. II. c. 3 ; 26, 77 
 
 1 Geo. III. c. 8; 68 
 12-13 Vic. c. ; 40 
 
 38 c. 25 (Controverted Elections), 290 
 R. S. N. S. c. 139 ; 90 
 
 (1884) c. 3 (Assembly), 328 
 
 (h) NEW BRUNSWICK. 
 
 8 Wm. IV. c. 1 ; 40 
 21 Vic. c. 9 (Parish Schools), 497 
 
 32 c. 32 (Controverted Elections), 290 
 
 33 c. 33 (Assembly), 328. 
 
 34 c. 21 (Common Schools), 4. if, 
 
 36 c. 10; 360 
 
 37 c. 107 ; 382 
 
 50 c. 4 (Liquor License Act), 366
 
 INDEX TO STATUTES. xxi 
 
 (i) PRINCE EDWARD ISLAND. 
 
 26 Vic. c. 15 (Assembly), 328 
 
 37 c. 21 (Controverted Elections), 290 
 
 (j) BRITISH COLUMBIA. 
 
 34 Vic. No. 70 (English Law), 615 
 
 34 No. 147 ; 614 
 
 Con. Stat. B. C. c. 40 (Controverted Elections), 290 
 
 R. S. B. C. (1888) c. 22 (Provincial Constitution) ,' : 615 
 
 fh) MANITOBA. 
 
 34 Vic. c. 2 ; 598-9 
 
 35 c. 3 ; 599 
 
 35 c. 10 (Controverted Elections), 290 
 
 38 c. 12 (Introducing English Law), 599 
 
 39 c. 29 (Leg. Council abolished), 326, 591 
 R. S. M. (1880) c. 5 (Assembly), 328 
 
 49 Vic. c. 11 (Mortmain), C02 
 49 c. 51 (Stamps), 434 
 53 c. 23 (Mortmain), 602 
 
 53 c. 38 (Public Schools), 505 
 
 (1) N011TH-\VEST TERRITORIES. 
 Rev. Ord. (1888) c. 5 (Controverted Elections), 290
 
 ERRATA ET CORRIGENDA. 
 
 Page 40, line 19 for "clearly" read " equally." 
 
 " 126, " 12 " " we have enumerated" read "enunciated." 
 
 " 187, " 32 " "o)i" read " no." 
 
 " 194, What is said in the note (c) is subsequently qualified ; see 
 pp. 348-9. 
 
 " 228, The sentence beginning on line 4, is subsequently qualified. 
 
 " 289, line 18 for " 18?5 " read " 1874." 
 
 " 297, " 5 " "distribution" read "re-distribution." 
 19_ 1892 " read " 1891." 
 
 " 406, Keference should be made to the decisions in British Colum- 
 bia ; see p. 
 
 " 429, head-line for " sec. 91 " read " see. 92." 
 
 " 444, line 18 for "majorities" read "majority." 
 
 " 469, " 18 " "35 Vic." read "53 Vic." 
 
 " 479, line 4 for " milked " read " milk." 
 
 " 538, note (/) supply reference to p. 470.
 
 PAET I.
 
 THE 
 
 Law of the Canadian Constitution, 
 
 CHAPTER I. 
 
 OUR POLITICAL SYSTEM A COMPARATIVE EXAM- 
 INATION. 
 
 By virtue of a certain Act (a ), passed by the Parliament 
 of the United Kingdom, and Her Majesty's proclamation 
 pursuant thereto (6), the Dominion of Canada became "a 
 new thing under the sun" of the first day of .Tnly. 1861. 
 The Imperial Act provides for its own citation as "The 
 British JXorth America A^ IftfiT." but we shall not only 
 save space, but conform also to usage on this side of the 
 Atlantic, by using throughout the shorter title of "The 
 B. X. A. Act" (c). For a quarter of a century our form of 
 political organization has been, under that Act, a "general" 
 government (of which we shall always speak as the 
 "Dominion" government), charged with matters of common 
 interest to the whole country, and "local" governments 
 (to be spoken of as "Provincial" governments), charged 
 with the control of local matters in their respective sections. 
 
 (a) 30 & 31 Vic. c. 3 (Imp). (b) Sec. 3. 
 
 (c) Subsequent amendments are similarly entituled, but whenever it 
 becomes necessary to refer to any one of them, we shall, by way of dis- 
 tinction, add the year. 
 CAN. Cox. 1
 
 2 THE CANADIAN CONSTITUTION. 
 
 The sphere of political activity, assigned to each of these 
 two sorts of government, is carefully mapped out in the 
 B. N. A. Act; taken together, they comprise the most 
 extensive field of colonial self-government in the British 
 Empire to-day. The constitution, too, of each of those 
 governments is provided for, either . expressly, as in the 
 case of the Dominion government, or by the incorporation 
 into the Act of previously existing constitutions, as in the 
 case of some, at least, of the Provincial governments. 
 
 In the preamble to the B. N. A. Act, it is recited that 
 the provinces of Canada, Nova Scotia and Xew Brunswick, 
 had expressed their desire for a federal union into one 
 Dominion, "with a constitution simiktr in j>r! iidjd-e to 
 that of the United Kingdom," and the opinion is ventured 
 that such a union would conduce to the welfare of the 
 provinces, and promote the interests of the British Empire. 
 "Be it therefore enacted," etc. 
 
 A clearer indication that the design of the B. N. A. Act 
 was to establish in Canada such a union with such a con- 
 stitution as was desired by the petitioning provinces, could 
 hardly have been given. The expression of desire to which 
 the Act refers in the recital above quoted, is to be found in 
 the third and fourth of the resolutions passed at the Con- 
 ference, at Quebec, of delegates from the various provinces : 
 
 "III. In framing a Constitution for the General Govern- 
 ment, the Conference, with a view to the perpetuation of our 
 connection with the Mother Country, and the promotion of the 
 best interests of the people of these provinces, desire to follow 
 the model of the British Constitution so far as our circumstances 
 will permit. 
 
 "IV. The Executive authority or Government shall be 
 vested in the Sovereign of the United Kingdom of Great Britain 
 and Ireland, and be administered according to the well-under- 
 stood principles of the British Constitution, by the Sovereign 
 personally, or by the representative of the Sovereign, duly 
 authorized."
 
 OUR POLITICAL SYSTEM. 3 
 
 It should, perhaps, be noticed that these resolutions 
 make reference to the constitution of the "general" 
 government only, and the preamble to the B. N. A. Act is 
 capable of a similarly limited interpretation. The obser- 
 vation applies, too, to the additional recital in the 
 preamble, that "it is expedient not only that the con- 
 stitution of the legislative authority in the Dominion be 
 provided for, but also that the nature of the executive 
 government therein be declared." A perusal of the next 
 chapter, however, and of what is there said in reference to 
 the survival of the pre-Confederation provinces, the con- 
 tinuity (so to speak) of their legislatures and their execu- 
 tive authority, will, as we proceed, suffice to show that our ^ 
 present argument applies a fortiori to the Provincial Con- 
 stitutions. 
 
 Reverting then to the preamble to the B. N. A. Act, 
 one would naturally expect that the design so clearly 
 announced, would be effectually carried out in the enacting 
 clauses of the Act. There have not been wanting, however, 
 those who have contended that the performance has fallen 
 far short of the promise ; that the B. N. A. Act is in its pre- 
 amble a notable instance of " official mendacityjl*441; an< ^ K 
 that the effect of its enactment has Been, the establishment I ~ 
 in Canada of a system of government presenting features | 
 analagous rather to those of the government of the United! 
 States than to those of the British constitution. This view 
 of the Canadian constitution is quite erroneous, founded 
 upon a very superficial observation of the structure of 
 government in this Dominion, and wanting in a proper 
 regard for the underlying principle, in conformity to which 
 
 (d) Dicey (Prof. A. V.) "The Law of the Constitution," 3rd ed., p. 155. 
 As the Professor himself would eay, " it is worth noting " that the criti- 
 cism of this preamble, in which he indulges, is inaccurate. The provinces 
 had expressed their desire for a constitution " similar in principle," etc., 
 as a perusal of the Resolutions, above quoted, will show, and the pre- 
 amble therefore is literally true. We waive, however, this verbal criticism 
 of the Professor's statement, and treat it as indicative merely of his view 
 of the effect of the B. N. A. Act.
 
 4 THE CANADIAN CONSTITUTION. 
 
 the pre-Coiifecleration provinces had been governed, and 
 the Dominion and its federated provinces have since been 
 .governed, the principle, as we shall endeavor to show, 
 which is the chief distinguishing feature of the British 
 form of government, the Empire over, as contrasted with 
 the constitution of the United States. Because the union 
 of the B. N. A. provinces is federal, indicating, ex nec'.-*i- 
 tate, some sort of a division of the field of governmental 
 action, an allotment of some part of that field to a " central 
 government, the conclusion is rashly arrived at, that these 
 matters of outward and superficial resemblance between 
 our system of government and that of the neighboring 
 Republic, are sufficient to stamp thenras essentially alike. 
 A closer examination of the B. N. A. Act itself, coupled 
 with some slight knowledge of the pre-existing provincial 
 constitutions, and their practical working, would have 
 sufficed to show that, in essentials, we have a constitution 
 not like the constitution of the United States, but "similar 
 in principle to that of the United Kingdom." In this 
 instance, at least, the Imperial parliament has not laid 
 itself open to the reproach addressed in Holy Writ to cer- 
 tain unnatural parents. We in Canada labor under the 
 impression that we have got what we asked for; whether 
 it is, or is not, good for us, is not, perhaps, matter for dis- 
 cussion in a work of this kind. 
 
 To arrive at an intelligent conclusion upon this much 
 discussed question to which form of government, the 
 British or the American, does our government in principle 
 conform \ one must necessarily first formulate in his own 
 mind some definite notion of the difference in principle 
 between these two systems, with which in turn we desire 
 to compare or contrast ours. It may, perhaps, turn out 
 that a candid comparison will disclose that the differei set- 
 between them should hardly be characterized a> a differ- 
 ence i a j>r! i'1-ijilc, that in eacli the same motive power is 
 applied to the same end. with only some difference in the 
 mode of application.
 
 OUR POLITICAL SYSTEM. 5 
 
 The British Empire and the American Union consist, 
 each of a central or " national " government, with subor- 
 dinate " local " governments. The central government in 
 each is the only organization entitled to international- 
 recognition as the embodiment of the national will ; but it 
 is, at the same time, the comprehensive organism which 
 overlies and binds together the various " local " govern- 
 ments existing within the borders of the Empire or Union. 
 In the case of the United States, the central or Federal 
 government has always received treatment as a tangible 
 national " government over one compact territory ; but 
 the British Constitution has, as a rule, been looked at 
 as the constitution rather of Great Britain, than as an 
 Imperial constitution. The reason is partly geographical, 
 partly historical. The Imperial constitution, as it to-day 
 exists, is the result of the gradual application to the 
 government of an expanding empire, of those principles 
 of local self-government which were adopted, at the start, 
 us the basis of the federal union of the American colonies 
 but this Imperial phase of the British constitution has 
 been rather overlooked. If we can, in imagination, place 
 ourselves in the world of (say) 1776, and try to appreciate 
 just to what stage the British constitution had arrived, it 
 will be found that the struggle in Great Britain to that 
 date, had been a struggle between "the individual" and "the 
 State." That question had been finally settled, and the 
 individual was protected by, and subject only to, the law 
 of the land, and the despotism of discretionary govern- 
 ment was forever abolished. Next in order came the 
 question of " local " self-government (e). In compact Eng- 
 
 (e) The federal idea is really nothing more than the logical outcome 
 of the " individualistic " idea, which lies at the bottom of self-govern- 
 ment ; and it would ba an interesting task to trace the growth of th3 
 idea from its root in the belief that man has certain " natural rights," and 
 that society controls his exercise of those rights, only to the extent neces- 
 sary to give proper play to the like rights of his fellow-men, up through 
 the growth of municipal self-government to the establishment of a federal 
 system of government, logical from root to topmost branch.
 
 6 THE CANADIAN CONSTITUTION. 
 
 land, the question had not become one of practical politics 
 (the Irish question was not then on the carpet), but as to 
 the government of the colonies, it loomed up larger and 
 larger as the colonies increased in population ; and the loss 
 of the Southern half of this continent is standing proof of 
 the failure of English statesmen of those days, to grapple 
 with the problem. The thirteen colonies, mutually inde- 
 pendent, having joined to destroy the common tie of sub- 
 jection to Great Britain, but desiring still to perpetuate 
 their union of race and common interest, had to face the 
 task of forming a central or union government, in such 
 fashion as to reconcile national unity with those ideas of 
 the right of local self-government which had been the 
 cause of their separation from the Empire. Schooled by 
 the failure of the " Articles of Confederation " to work this 
 result, they formulated the " Constitution of the United 
 States," under which they have lived and thrived for over 
 one hundred years (/). That which, by revolution and a 
 formal written convention, they accomplished, is now 
 working its way out in the colonial system of the British 
 Empire. To-day, the right of local self-government in 
 the British colonies depends on the "conventions, usages 
 and understandings," recognized and acted upon by the 
 statesmen wno, throughout the Empire, are at the head of 
 public affairs. The maintenance of national unity is. 
 legally with the government of the United Kingdom, but 
 there are not wanting signs of a desire for a system of 
 true Federal government, in which, as to matters of 
 Imperial concern, the whole shall govern the parts, and 
 not one of the parts the whole. 
 
 Viewed then as an Imperial system, the British constitu- 
 tion does not differ in principle from the constitution of the 
 
 (/) "I think and believe that it is one of the most skilful works- 
 which human intelligence ever created ; is one of the most perfect organ- 
 izations that ever governed a free people. To say that it has some 
 defects is but to say that it is not the work of Omniscience, but of 
 human intellects." Sir John A. Macdonald, Confed. Deb. p. 32.
 
 OUR POLITICAL SYSTEM. 7 
 
 United States. In the one, by the written law of the consti- 
 tution, in the other by the unwritten " conventions " of the 
 constitution, the field of governmental action is divided, 
 and in each there exists a "national" government, charged 
 with matters of common concern to the whole nation, and 
 " local " governments, charged with matters of local concern 
 to the inhabitants of each of the territorial divisions 
 of which that nation is composed. The fact that the 
 " national " government of the British Empire, is also the 
 " local " government of one of the territorial divisions of 
 the Empire, is an ^a/porn sly which will no doubt disappear, 
 but which makes no difference in principle. Although the 
 parliament of the United Kingdom is the supreme power 
 in government under the British constitution, there is a 
 clear and even legal distinction between the exercise of its 
 authority as an Imperial parliament, and the exercise of 
 its authority as the parliament of the United Kingdom. 
 Prima^facie, itjicts as thejatter, and there must be "express 
 words or necessary intendment" in order to make, its Rpfoj 
 truly imperial it must, in other words, act deliberately^ i 
 and with intent, when it would convert itself (SQ t.r> sp^kj 
 
 intothe legislative organ of the Empire (g). So that if 
 it be said that the parliament of the United Kingdom is 
 supreme throughout the Empire, it can with equal truth 
 be said, that in affairs truly Imperial, that parliament 
 speaks the will, or what it deems to be the will, of the 
 whole body of the people of the Empire. 
 
 The British Empire is scattered over the whole earth, 
 and in the practical work of government, matters of common 
 concern are few and far between much more so in fact 
 than is commonly imagined. Take, for example, all that 
 class of matters dealt with by the British government 
 under the head of Foreign Affairs. The vast majority of these 
 matters cannot be said, in any practical sense, to be Imperial 
 of common concern to the Empire relating largely, as 
 
 (<?) See post, Chap. IV. ; 28 & 29 Vic. c. 63 (Imp.) ; also Chap. IX., post.
 
 THE CANADIAN CONSTITUTION. 
 
 they do, to the intercourse between Great Britain and her 
 European neighbors (h): and, as to these, the British Govern- 
 ment can hardly be said to act as an Imperial government, 
 Their recognition as matters largely of "local" concern to 
 Great Britain, is made apparent in the case, for instance, 
 of man}' British treaties, by the reservation to the colonies, 
 in a number of modern instances, of the right to share, or 
 to decline to share, the benefit and burden of these treaties 
 just as each colony may see fit to determine for itself. 
 Modern constitutional usage in the British Empire is rap- 
 idly approaching the point where, in matters concerning 
 the colonies in their general relations between themselves 
 (i), or the relations of the colonies generally with foreign 
 powers, the will of the colonies concerned is given effect 
 to, unless the will of the Empire as a whole should differ 
 therefrom, and where in matters concerning the relations of 
 the colonies to the Mother Country, those relations are 
 settled by agreement as between independent negotiators. 
 
 In truth, the constitution of the Empire is as truly 
 federal as is the constitution of the United States. Owino- 
 
 o 
 
 to the historical accident that the Empire is but the expan- 
 sion of the population of the United Kingdom, the "local" 
 government of the original parent stem has hitherto con- 
 tinued to be, as we have said, the "national" government of 
 the Empire, but by gradual modification, by conventions 
 and usages, the functions of the British Parliament, so far 
 as it controls the "national" government of the Empire, are 
 performed according to the will of the Empire. The true 
 
 federal idea is clearlv manifest to reconcile national unity 
 
 /" "*' ' " " i ! 
 
 (In The very fact that different parts of the Empire lie contiguous to 
 different foreign powers will, perhaps, necessitate the enlargement of the 
 sphere of local self-government in the units of the British Confedera- 
 tion that is to be ; or, from the other view, the matters of common con- 
 cern will necessarily be fewer, and the sphere of the "central " govern- 
 ment narrower than is the case in a compact territory like that of the 
 United States. 
 
 i (I The B. N. A. Act deals with such matters.
 
 OUR POLITICAL SYSTEM. 9 
 
 with the right of local self-government the very same 
 dea that is stamped on the written constitution agreed 
 upon by the people of the United States. The difference 
 of position historically is quite sufficient to account for 
 the difference of position legally. Given the indepen- 
 dent self-governing communities, which made up the 
 American Commonwealth, the "national" government 
 was super-imposed to secure unity, but upon conditions 
 preservative of local autonomy. With us, on the other 
 hand, the central government stands historically first. 
 but the various communities which grew out of it have, 
 by gradual concession, secured at least as full a measure 
 of the right of local self-government as is enjoyed by the 
 individual States, which together form the neighboring 
 Republic. The sum total of conceded power at any given 
 period, will be found to be commensurate with the opinion 
 prevalent at such period as to the proper line of division 
 between Imperial and local concerns. 
 
 It may, perhaps, be contended that the "national" 
 government of the British Empire, having the power to 
 lav down the line, which is to be the legal line of division 
 between matters of common and matters of local con- 
 cern, at just such a point as to it seems proper, differs in 
 this respect from the "national" government of the United 
 States. The common description of the Federal govern- 
 ment of the United States, as a government possessed of 
 .specially delegated powers only, would seem to support 
 this distinction. But, in truth, this special delegation is, for 
 all practical purposes of government, a delegation of power 
 sufficiently wide to enable the Federal government to be 
 itself the regulator of its own sphere of authority. The 
 subject matters are themselves comprehensive in scope, and 
 the "implied power' which Congress possesses to choose 
 such means as it may deem necessary and proper for 
 carrying out the designed end of the "national" govern- 
 ment, leaves the decision as to the line of division between 
 Federal and State matters very much in Congress' hands: 
 
 I- -i i i <! n ii ^^
 
 10 THE CANADIAN CONSTITUTION. 
 
 and thoughtful American writers are not slow in asserting 
 that Congress is as fully the supreme power in the American 
 political system as is the British Parliament in our Impe- 
 rial system (j). But however this may be, and even if we 
 must go back to "We, the people of the United States" as 
 the supreme power in the American system, we shall find, 
 as might be expected, that the people, as a whole, are 
 legally the rulers of the people in parts, and that the line 
 of division which shall, at any moment, separate the fields 
 of Federal and State action, depends not on the will of the 
 individual States, but on the will of "the people of the 
 United States" the authors of the "Constitution" as it 
 exists to-day who can alter it at any time and make it 
 conform to their will. Cumbersome we may think the 
 machinery provided for effecting any desired amendment ; 
 but it is there; and no one can say that the next amend- 
 ment will not be a simplification of the machinery for 
 amendment. 
 
 Having shown the presence of the Federal principle in 
 the British constitution, it must be admitted that the con- 
 stitution of the United States, century-old as it is, carries 
 that principle into action much more logically than does 
 the British constitution of to-day. Were it not for the 
 fact to which we have alluded, namely, that the matters of 
 common concern, requiring governmental action, are few, 
 the British Empire would not long hang together in its 
 present hap-hazard form of federal government. The 
 want of legal limit to the power of the "national" govern- 
 ment, does not make itself seriously felt, owing to this 
 scarcity of matters of common concern, and to this further 
 fact, that the statesmen at the head of the British govern- 
 ment have, in the main, carefully observed the "conven- 
 
 (j) Prof. Woodrow Wilson, in " Congressional Government " 4th ed. : 
 " For all practical purposes, the National Government is supreme over 
 the State Governments, and Congress predominant over its so-called co- 
 ordinate branches" : p. 52. See, however, a criticism of this work by Mr. 
 A. Lawrence Lowell in his " Essays on Government," p. 46 et seq.
 
 OUR POLITICAL SYSTEM. 11 
 
 tional" limits, and have, in those few matters of common 
 concern, endeavored to carry on the Imperial government 
 in accordance with the wishes of the Empire as a whole, 
 so far as, under our illogical system, those wishes are 
 capable of being ascertained. 
 
 We have spoken of the want of legal limit to the power 
 of- the "national" government under the British Imperial 
 system. The expression is perhaps hardly accurate the 
 want which really exists is the want of legal limit to the 
 legixlatii-i' power of the British parliament. The result 
 is that the -legal line of division between the fields of 
 Imperial and colonial government, is a most uncertain 
 one, although becoming less so. But although one must 
 ransack both British and colonial statutes to ascertain this 
 line, it is, when ascertained, and at any given moment of 
 time, a legal line of division, and governmental action will 
 bgjkept by the courts within its proper sphere. Xo judge 
 withmTneEmpire can legally limit the British Parliament 
 as a legislative body, or treat its enactments as ultra vires ; 
 but the very same thing may be said of that "amended 
 Act" of the supreme legislative authority of the Uni 
 States its present "Constitution" or of any future amend- 
 ment thereof. But under both the British and the United 
 States systems systems of government-according-to-law 
 the courts charged with the enforcement of law must 
 decline to recognize the validity, the lawfulness, of any 
 governmental act, done by any person or body of persons, 
 beyond the limits to which they are legally subject. 
 
 The enforcement by the courts, colonial and British, of 
 the legal limitations upon colonial legislative power, is 
 matter of legal notoriety (&), apart altogether from the 
 cases which have arisen relative to the division of the 
 field of Canadian government between the Dominion and 
 Provincial legislatures; and no less notorious is, or should 
 be, the enforcement by the courts, of the legal limits set. to 
 
 (k See post, Chap. IX.
 
 12 THE CANADIAN CONSTITUTION. 
 
 governmental interference (other than by Imperial law- 
 making) on the part of the " national " authorities with 
 colonial rights of self-government (I). The "sphere of 
 authority "of the British parliament, as a law-making bodiL 
 for the Empire, is legally unlimited, and within that 
 unlimited sphere it may exercise its law-making powers in 
 whatever fashion may appear proper to it. The "sphere 
 of authority" of Congress as a law-making body is not 
 unlimited, but over matters within that sphere (be it wide 
 or narrow), the power of legislation is plenary, and subject 
 to no limitations capable of judicial enforcement. 
 
 We have not therefore discovered yet the difference in 
 principle between the British and the American systems of 
 government. It is not in respect of the federal idea 
 that is common to both; nor in respect of the rule of ln', 
 the enforcement by the courts of the law of the constitution 
 that, too, is common ground. We are driven, therefore, 
 to examine the machinery of government ; and here we 
 shall find a difference which runs through the " national " 
 and " local " governments alike of these two systems. The 
 difference in principle is not in those parts of the body 
 politic which exercise legislative functions, nor in those 
 which are executive, but in the connection between the two 
 \ the connection between the law-making and the law- 
 executing departments of government. 
 
 It must appear clear, upon consideration, that in any 
 country under the rule of law, the body to which by the 
 constitution is entrusted the power to make law, must 
 necessarily be the supreme power in government. The 
 body to which the executive functions of government are 
 entrusted must obey the law, and the extent of its power 
 to exercise its own volition entirely depends on the legisla- 
 tive body. That body may content itself with enacting 
 general laws, laying down broad principles, or giving gen- 
 eral directions in reference to government, and in such case 
 
 (/) Campbell v. Hall, Cowp. 209.
 
 OUR POLITICAL SYSTEM. 13 
 
 the choice of megjia, manner^and timeJeft with the execu- 
 tive, constitutes that executive a power capable of exhibit- 
 ing the imprint of its own discretion in the actual carrying 
 on of public affairs. On the other hand, the legislature 
 may go to such length of legislative detail, may so specifi- 
 cally provide the means, manner, and time, for the perform- 
 ance of any work of government, that the executive may 
 sink to the level of a purely routine office^and the power 
 of any member of the executive staff* to exercise discretion, 
 as to how or when he shall perform his duties, be entirely 
 taken away. The history of constitutional progress in 
 England is the history of the steps by which the Legisla- 
 ture compelled the Executive to recognise the supremacy 
 of law in other words, the supremacy of the Legislature ; 
 and so long as the Executive withheld this full recognition, 
 legislation continued to be more and more specific in its 
 provisions, more of a curb and fetter upon executive dis- 
 cretion. But now that the principle of executive responsi- 
 bility is recognized to the full, the tendency of legislation 
 is, in many matters, rather the other way; and many de- 
 tails of governmental action are left to be provided for by 
 order in council or departmental regulation, or even left to 
 the discretion of the official who has charge of the particu- 
 lar work. 
 
 It must be observed, too, that this supremacy of the 
 legislative department of government is just as clearly 
 apparent under a federal system where the government is 
 a government-according-to-law, as under what has been 
 called a " Unitarian " system-, under the like rule of law. 
 The federal idea has no more necessary relation to the 
 separation of the spheres of authority of the legislative and 
 executive departments than has the " Unitarian" idea. The 
 English constitution (viewed as the constitution of the 
 United Kingdom merely) and the French constitution are 
 manifestations of the " Unitarian " idea in government ; but, 
 in the former, the supremacy of the legislature over the 
 executive is a dominant principle ; while, in the latter, the
 
 14 THE CANADIAN CONSTITUTION. 
 
 executive is, in many respects, recognized as above the law, 
 as having a law peculiar to, and moulded by itself the 
 droit administratif and somewhat the same distinction 
 may be drawn between the two representative federal con- 
 stitutions, that of the United States and that of the Swiss 
 Republic. 
 
 Reasoning, a priori, therefore, one would say, that, in 
 both the British and the American systems, the body which 
 makes the law must necessarily be supreme over the body 
 which simply carries out the law when made; and it is not 
 surprising, therefore, to find that in the British system, not 
 only is this supremacy recognized, but, by a certain arrange- 
 ment of the machinery of government, the will of the law- 
 making body is made to sympathetically affect and control 
 the will of the executive in the administration of public 
 affairs: and the administrative knowledge of the executive 
 is utilized to the full in the work of legislation. The same 
 supremacy necessarily exists in the United States system ; 
 that is, the executive department of the Federal govern- 
 ment, or of any one of the State governments, must 
 administer public affaire according to law. But, in their 
 system, there seems apparent a determined effbrt_t|fl_prcvpn^ 
 co-ogeration and sympathy. 
 
 What then is this arrangement of machinery to which 
 we have referred as existing in the British system ? 
 
 Of late years it has been found necessary to revise some- 
 what our ideas concerning the British constitution. The 
 older authorities dwell upon the division of power between 
 the legislative and executive departments of government, 
 and the subdivision, in turn, of the legislative department 
 into King, Lords, and Commons ; and they (m) dilate with /T 
 quiet enthusiasm upon the "checks and balances" provided 
 in and by such a division and subdivision of power. 
 ( Gradually, however, this "literary theory," safe-guarding 
 the ark pf the constitution with its supposed division of 
 
 (m) e. g. Chitty On the Prerogatives of the Crown, at p. 2.
 
 OUR POLITICAL SYSTEM. 15 
 
 sovereignty into departments, each, as it were, checking 
 whatever of evil there might be in the uncontrolled action 
 of the others, and yet each supposed to be in a sense inde- 
 pendent of the others gradually, we say, this theory came 
 to be seen to be an incomplete, and, in truth, wholly errone- 
 ous explanation of the working of the constitution. The 
 rising spirit of democracy had silently permeated the 
 system of government, without any apparent disintegration 
 of parts, but with a difference in.the practical ^ 
 
 of power, which at length challenged recognition at the 
 hands of those who would expound the constitution and 
 its law. 
 
 Of comparatively recent writers, the late Walter Bage- 
 hot, in his most valuable essays, attacks with vigor this 
 "literary theory," with its supposed checks and balances, 
 and as a result of an interesting study of constitutional 
 dynamics, arrives at this conclusion : 
 
 " The efficient secret of the English constitution may be 
 described as the close union, the nearly complete fusion of the 
 executive and legislative powers. No doubt by the traditional 
 theory, as it exists in all the books, the goodness of our consti- 
 tution consists in the entire separation of the legislative and 
 executive authorities, but in truth its merit consists in their 
 singular approximation. The connecting link is the Cabinet. 
 By that new word we mean a committee of the legislative body 
 selected to be the executive body. The legislature has many 
 committees, but this is its greatest. It chooses for this, its main 
 committee, the men in whom it has most confidence. It does 
 not, it is true, choose them directly ; but it is nearly omnipotent 
 in choosing them indirectly ..... The Cabinet, in a 
 word, is a Board of Control, chosen by the legislature, out of 
 persons whom it trusts and knows, to rule the Nation. 
 A cabinet is a combining committee a hyphen which joins, a 
 buckle which fastens, the legislative part of the State to the 
 executive part of the State. In its origin, it belongs to the one, 
 in its functions, it belongs to the other." 
 
 and he proceeds further to show how, by this practical 
 fusion, this result is clearly attained that the will of the
 
 16 THE CANADIAN CONSTITUTION. 
 
 people constitutionally expressed through their elected 
 representatives in the House of Commons, controls both 
 the law-making and the law-executing power, and is, in 
 very fact, the ultimate power in government. 
 
 Mr. Dicey, in a work to which reference has already 
 been made, treats of 'the law of the constitution/ and 
 insists on this as the legal principle discernible throughout, 
 namely, the supremacy of Parliament. Viewed as a legal 
 question, the solution of the problem stops short at the 
 expression (in Act of Parliament) of the will of Parlia- 
 ment, and from that standpoint we may summarize the 
 result thus: The Imperial Parliament is. supreme over the 
 Executive. By the legal expression of its will in statutory 
 form, it controls the exercise of executive authority ; may 
 add to, or take from, the power of that department of gov- 
 ernment, or may subject the exercise of executive power to 
 such conditions of time, place, or manner of action, as T>> 
 Parliament may seem proper. The law of the constitution 
 does, however, take this cognizance of the "power behind 
 the throne," that the method of electing the House of 
 Commons is provided for by Act of Parliament. 
 
 Viewed in the light of the "conventions of the constitu- 
 tion," the responsibility of the executive to the legislature 
 for the proper performance of its functions, is guaranteed 
 by those usages and precepts, that code of "conventions 
 which provide that, upon losing the confidence of the House 
 of Commons, the Cabinet must resign, and give place to an 
 executive which will command that confidence ( " ). 
 
 This responsibility of the executive to the people, 
 through the House of Commons the elective branch of 
 
 O 
 
 parliament is the principle of the British constitution, 
 
 () The last chapter in Prof. Dicey's book is a very interesting effort 
 to show that, the " conventions" of the British constitution rest upon a 
 basis of legal sancf : .. -that the violation of most, if not all, of those 
 conventions, will s edily place the offender in the position of a law- 
 breaker. This idea could hardly bs worked out in the matter of the 
 "conventions" as to colonial self-government.
 
 OUR POLITICAL SYSTEM. 17 
 
 and is worked out in government somewhat upon the prin- 
 ciple of the endless chain. Travelling in one direction 
 along the links of this chain, we find an executive commit- 
 tee, practically appointed by, and subject to deposition at 
 the hands of the Commons, executing upon and over the 
 governed those laws of the land which are made, or allowed 
 to remain such, by that branch of parliament which is elected 
 by the people through certain executive machinery ap- / 
 pointed by parliament, and put in motion by the executive 
 committee. A reversal of the process leads to the same 
 result the discovery that the motive power in government 
 is the will of the people, and that this power works always 
 and only through parliament, but that, through the con- 
 trolling branch of parliament, the governed make their own 
 laws, and provide the means, and regulate the manner, by 
 and in which they are to be governed by those laws. 
 
 Turning now to the system of government across the 
 border, we find the same principle of ultimate responsibility 
 to the people ; but it is worked out in a very different and 
 much less satisfactory way. We have referred to the 
 " literary theory " of the English constitution. It is not 
 very far from the truth to say that the United States 
 system is an attempt to work out that very theory in actual 
 practice. We may take as our example the " national " 
 government at Washington, for, as we have already said, 
 the t}"pe is persistent throughout both the " national " and 
 the ' local " governments of the American Union, just 
 as the British type is persistent throughout both the 
 " national " and " local " governments of the British Em- 
 pire. How it came about that the " literary theory " of the * 
 English Constitution was embodied in the Constitution of 
 the United States has been the subject of frequent enquiry, 
 and we venture to quote from a recent American work of 
 great merit : 
 
 " The Convention of 1787 was composed of very able men 
 of the English-speaking race. They took the system of govern- 
 ment with which they had been familiar, improved it, adapted it 
 CAN. Cox. 2
 
 18 THE CANADIAN CONSTITUTION. 
 
 to the circumstances with which they had to deal, and put it 
 
 into successful operation It is needful, however, to 
 
 remember in this connection, what has already been alluded to,, 
 that when that Convention was copying the English constitu- 
 tion, that constitution was in a stage of transition, and had by 
 no means fully developed the features which are now recognized 
 as most characteristic of it The English consti- 
 tution of that day had a great many features which did not invite 
 republican imitation. It was suspected, if not known, that the 
 ministers who sat in parliament were little more than the tools 
 of a ministry of Koyal favorites, who were kept out of sight 
 behind the strictest confidences of the Court. It was notorious- 
 *that the subservient parliaments of the day represented the 
 /estates and the money of the peers and the influence of the 
 s King, rather than the intelligence and purpose of the Nation. 
 I .... It was something more than natural that the con- 
 I vention of 1787 should desire to erect a Congress which would 
 | not be subservient, and an executive which could not be despotic ; 
 I and it was equally to have been expected that they should regard 
 an absolute^eparation of these two great branches of the system 
 as the only effectual means for the accomplishment of that much 
 desired end" (o). 
 
 Prof. Wilson, indeed, shows very clearly, as one would 
 expect, that Congress is now supreme over the executive 
 of the federal government, and " subjects even the details 
 of administration to the constant supervision, and all policy 
 to the watchful intervention of the Standing Committees 
 of Congress"; but he laments the lack of executive responsi- 
 bility to Congress. The President and the heads of the 
 PL chief executive departments of government stand apart, 
 isolated from Congress; bound to execute its laws, but 
 \ . v with no greater influence in securing the passage of laws 
 in aid of effective administration, or in preventing the 
 passage of laws which may hamper administration, than is 
 possessed by any other private citizen. By the terms of 
 the " Constitution " itself, they are debarred from seats in 
 
 (o) Wilson's Congressional Government, p. 307.
 
 OUR POLITICAL SYSTEM. 19 
 
 Congress (p), and so have no initiative in legislation. On 
 the other hand, Congress must go to the full extent of law- 
 making in order to exercise its supremacy over the execu- 
 tive : but the trouble may be, not in the law, but in the 
 execution of that law, and no matter to what extent of 
 detail the law may make provision, one may expect that an 
 executive, perhaps completely out of sympathy with the law, 
 will not be a very satisfactory administrator of that law. 
 In short, there is no guarantee of that harmony between 
 the legislative and executive departments, that sympathy 
 and co-operation, without which there must necessarily 
 arise constant friction, lack of continuity in policy, and 
 even a deadlock in the administration of public affaire. 
 Congress and the executive are responsible, each directly 
 to the people ; but the retention of the confidence of Con- 
 gress is in no way a condition to the retention of office 
 Congress has no such power to depose the executive as 
 has the House of Commons in the English constitutional 
 system. Moreover, the constant possibility of party diver- 
 sity between the Executive and Congress, renders it very 
 difficult to fasten responsibility upon either. This difficulty 
 is thus strongly put by Prof. Wilson, in the work from 
 which we have already quoted : 
 
 " Is Congress rated for corrupt, or imperfect, or foolish legis- 
 lation ? . . . . Does administration blunder and run itself 
 into all sorts of straits ? The Secretaries hasten to plead the 
 unreasonable or unwise commands of Congress, and Congress 
 falls to blaming the Secretaries. The Secretaries aver that the 
 whole mischief might have been avoided, if they had only been 
 allowed to suggest the proper measures ; and the men who 
 framed the existing measures, in their turn, avow their despair 
 of good government, so long as they must entrust all their plans 
 
 to the bungling incompetence of rnen/Avho are appointed by, and 
 
 ,/M*- Wu^*vitfc^*i>- 
 responsible to somebody else./ How is tne school-master, the 
 
 nation, to know which boy needs the whipping? " (</). 
 
 (p) Art. I., sec. 6. (q) Congressional Government, p. 283.
 
 20 THE CANADIAN CONSTITUTION*. 
 
 Iii the preface to the same work, the distinction between 
 the British and the American systems of government is 
 shortly stated, in language which we have no hesitation in 
 adopting. 
 
 "It is our legislative and administi'ative machinery which 
 
 makes our government essentially different from all other great 
 governmental systems. The most striking contrast in modern 
 politics is not between Presidential and Monarchial governments, 
 but between Congressional and Parliamentary governments. 
 Congressional government is Coatniittiv government ; Parliamen- 
 tary government is government by a responsible ( 'abinet ministry. 
 
 " These are the two principal types which present them- 
 selves for the instruction of the modern student of the practical 
 in politics : administration by semi-independent executive agents, 
 who obey the dictation of a legislature to which they are not 
 responsible; and administration by executive agents, who are the 
 accredited leaders and accountabie servants of a legislature 
 virtually supreme in all things." 
 
 Neither need we hesitate to give expression to our 
 decided preference for the system of cabinet government 
 which obtains in England, when we find so thoughtful a 
 writer as Prof. Wilson a citizen of the Republic at that 
 doing the like. 
 
 After this comparison of the two leading types of 
 Anglo-Saxon self-government, it is easy to decide to which 
 the Canadian constitution conforms. 
 
 We shall have occasion to again refer to the limits set 
 to our right of self-government, by reason of our colonial 
 subjection to the ultimate supremacy of the Imperial 
 parliament. In this chapter, we have endeavored to show 
 that this subjection is but that subordination of a "local '' 
 to a "national" government, essential in an}* truly federal 
 scheme of government. If, indeed, to estal dish our position, 
 we must show that some one parliamentary body, elected 
 by a Canadian electorate, is possessed of the ultimate 
 sovereignty in Canada over every conceivable subject
 
 OUR POLITICAL SYSTEM. 21 
 
 matter of governmental action, the discussion need go no 
 further ; for, admittedly, we are a colony of Great Britain, 
 and in the ultimate legal analysis our government' j from 
 without. This, however, is not, we take it, the point of 
 distinction. 
 
 If we can show that so far as the right of local self- 
 government the right to make the laws by which Ave are 
 to be governed, and to execute those laws as suits ourselves 
 has been conceded, our power is exercisable, the law- 
 making power with the same efficacy, and the law-execut- 
 ing power, under the same principle of responsibility to 
 parliament, and, through parliament, to the electorate, as in 
 the United Kingdom, we shall have established our propo- 
 sition. 
 
 To any one who has knowledge of the constitutions of 
 the provinces prior to confederation, it is unnecessary to 
 point out, that since the concession of " Responsible Govern- 
 ment," and up to 1867, those constitutions were "similar in 
 principle to that of the United Kingdom," and that all that 
 has been said in reference to the British constitution 
 might be repeated in reference to (old) Canada, Nova 
 Scotia, and New Brunswick. 
 
 Nor will it be contended that, under the B. N. A. Act, 
 the sum total of our rights of self-government has been 
 lessened : in fact, as we shall have occasion to show, that 
 sum total has been largely increased, both legally and by 
 "conventions." And no one who knows the actual work- 
 ing of the machinery of government in Canada, will con- 
 tend that we have, either in the Dominion government, or 
 the government of the various provinces, other than a 
 parliamentary government. 
 
 It has been usual to speak of "the division of power" 
 under a federal system. In truth, this form of expression 
 is most inapt, and very inaccurately describes the division 
 of labor which really exists. Its thoughtless use has been 
 fruitful of much misconception of the true line or principle
 
 22 THE CANADIAN CONSTITUTION. 
 
 of division. Bearing in mind what is involved in the term 
 government law-making and law-executing and the co- 
 extensive and complementary spheres of action of these 
 two chief departments of government, we shall find that 
 there is, in our system, no " division of power " in the sense 
 in which such division was, by the older writers, errone- 
 ously assumed to exist under the British form of govern- 
 ment; and certainly none in the sense in which such 
 division does actually exist in the individual systems of 
 the United States. Our simile of the endless chain may, 
 perhaps, serve to impress the true principle of our form of 
 government upon the reader, and that principle underlies 
 the practical working of each and every of our govern- 
 mental organizations, Dominion and Provincial. 
 
 The true line of division is this: The various subject 
 matters, with which government can be supposed to have 
 anything to do, are divided into two great divisions (r) 
 matters of general and matters of local concern but to 
 each of such divisions, the full equipment of power, legisla- 
 tive and executive, is given. There is no division of function 
 in the sense that as to any given subject matter, legislative 
 power resides in one organization or government, and execu- 
 tive power in another ; as to any given subject matter, the 
 full power of government rests in one and the same govern- 
 mental body. The Dominion government and the Provincial 
 governments are (each within the sphere of its legitimate 
 operation) carried on, on the same principle as the govern- 
 ment of the United Kingdom. Jurisdiction as to subject 
 matter conceded, the will of the legislature, Dominion or 
 Provincial, is supreme over the executive, in the same senn- 
 as the will of the Imperial parliament is supreme over the 
 executive in the United Kingdom. The legal principle, so 
 strongly insisted upon by Mr. Dicey the supremacy of 
 parliament as clearly appears here as in the United 
 Kingdom: while, for the "conventional" aspect of the 
 
 (r) See Bank of Toronto v. Lambe, 12 App. Cas. 587, and post, Chap. X.
 
 OUR POLITICAL SYSTEM. 23 
 
 question, it is only necessary to carry the comparison one 
 step further, and point out that, as in the United Kingdom } 
 so here, the ultimate responsibility of the executive to the 
 electorate, through the elective branch of the legislature, 
 is clearly established, in relation as well to each provincial 
 as to the Dominion government. The elective branch of 
 the legislature (Dominion Parliament or Provincial Legis- 
 lative Assembly) represents, and is directly responsible to, 
 the electorate as in the United Kingdom. The Execu- 
 tive Committee (the cabinet) composed of members of the 
 legislature, holding their positions by virtue of, and con- 
 tingently upon, the retention of the confidence of the 
 elective branch of that Legislature, are therefore, practically 
 directly responsible to that elective branch as in the 
 United Kingdom. The same chain of connected relation, 
 the same source of motive power, and the same method of 
 applying that power to the work of government, exists in 
 each of our governmental bodies, as in the United King- 
 dom. 
 
 In this view of the Canadian constitution, the extent 
 to which the executive department of the Dominion 
 government may exercise, over Acts of the provincial 
 legislative assembly, the power of disallowance, will appeal- 
 quite immaterial when it is borne in mind that this power 
 is, in any given case, exercised under the same responsi- 
 bility (directly to the Dominion parliament, and indirectly, 
 through the elective branch of that parliament, to the elec- 
 torate) as exists in relation to the exercise of any other 
 executive power lodged in the hands of the Dominion 
 government. And so as to any other points of contact, or 
 even conflict, between the Dominion and Provincial govern- 
 ments or, for that matter, between two local governments 
 for its conduct with regard to such matter of contact or 
 conflict, for its action or inaction, each government (execu- 
 tive and legislative department alike) is responsible ulti- 
 matety to the electorate, who condemn or approve in the 
 very same way and with like results as in the case, for
 
 24 THE CANADIAN CONSTITUTION. 
 
 example, of a conflict between Lords and Commons in the 
 United Kingdom. 
 
 Nor would it make the slightest difference, if (as was 
 held in certain quarters, for some years after 1867,) concur- 
 rent power over many subject matters were, by the B. N. A. 
 Act, allotted to both the Dominion and Provincial govern- 
 ments, and if the true construction of that Act were, to 
 subordinate provincial legislation upon such matters, to 
 Dominion legislation thereon. Colonial legislation is com- 
 pletely subordinate to Imperial, and to the extent of its 
 " repugnancy " to such Imperial legislation, is utterly void ; 
 and yet no one, we fancy, would contend that, by reason of 
 such subordination, the constitutions of the pre-Confedera- 
 tion provinces, for example, were other than constitutions 
 similar in principle to that of the United Kingdom. The 
 sphere of their power of government was limited by reason 
 of their colonial status, but so far as they had power, that 
 power was exercised through the same medium of respon- 
 sible parliamentary -government. And so now, under the 
 B. X. A. Act, each government, Dominion or Provincial, 
 has limitations set to its sphere of operation, but each, 
 within its sphere, is a responsible parliamentary govern- 
 ment.
 
 CHAPTER II. 
 
 THE PRE-CONFEDERATION CONSTITUTIONS. 
 
 To properly appreciate the merits or accurately note 
 the defects of any form of government, it must be studied in 
 its actual present working examined, so to speak, in motion 
 and if the B. X. A. Act were the creation of a govern- 
 mental organism, new in all its parts, we might lack justifica- 
 tion for indulging in historical retrospect back of 1867. But, 
 just because the slate was not cleaned, just because many 
 parts of the machinery of government existing in the 
 provinces prior to Confederation were continued in the new 
 plant set up in the various provinces, it will be necessary 
 to examine the earlier constitutions of those provinces. 
 Indeed, it will appear that in at least two of them, New 
 Brunswick and Xova Scotia (), the governmental ma- 
 chinery was left by the B. X. A. Act almost intact, and new 
 plant was provided only for the Dominion government and 
 the provinces of Ontario and Quebec (b). These reasons, 
 here urged in brief, will develop themselves more at length 
 as we progress in our examination of the scheme of govern- 
 ment contained in the B. X. A. Act. To avoid undue 
 repetition, the proof must be somewhat delayed. In any 
 ease, a short historial retrospect would probably not be 
 considered out of order. 
 
 () The same remark applies to British Columbia and Prince Edward 
 Island upon their admission to the Dominion. 
 
 r'/l And afterwards for Manitoba and the North West Territories.
 
 26 THE CANADIAN CONSTITUTION. 
 
 With the view, then, to determine the nature of the con- 
 stitution of government in the various provinces of which 
 the Dominion is composed, we proceed to discuss briefly, 
 and so far only as is necessary to a proper appreciation of 
 our present system, the constitutional history of those 
 provinces. 
 
 To NOVA SCOTIA belongs the distinction of being the 
 oldest of the B. N. A. colonies now forming part of the 
 Dominion. The preamble to one of the earliest Acts (c) of 
 the Nova Scotia Assembly (1759), declares that "this pro- 
 vince of Nova Scotia, or Acadie, and the property thereof, 
 did always of right belong to the Crown of England, both 
 by priority of discovery and ancient possession." The 
 correctness of this declaration, France would probably not 
 admit ; but the contest would be of antiquarian interest 
 merely, for by the treaty of Utrecht, in 1713, "Nova Scotia, 
 or Acadie, with its ancient boundaries," was ceded by 
 France to the Crown of England in the most ample terms 
 of renunciation. Nova Scotia, as thus ceded, included the 
 present provinces of Nova Scotia (excluding Cape Breton) 
 and New Brunswick, and also part of Maine. For many 
 years after its acquisition, Nova Scotia was practically 
 under the military rule of a governor and council, whose 
 authority was defined in the governor's commission. In 
 1749, a colonization scheme was set on foot, and anticipating 
 an influx of settlers into the colony, the commission to 
 Governor Cornwallis, of date 1749, authorized the sum- 
 moning of "general assemblys of the free-holders and 
 planters within your government, according to the usage 
 of the rest of our colonies and plantations in America." 
 After much delay, and the exhibition of much unwilling- 
 ness on the part of the governor and his council to act 
 upon this direction, a scheme of representation was settled, 
 and the first parliament of Nova Scotia met on the second 
 of October, 1758, at Halifax. 
 
 (e) 33 Geo. II. c. 3 (N. S.).
 
 PRE-COXFEDERATIOX COXSTITUTK >xs. 27 
 
 In 17G3, the remaining portions of what are now known 
 as the Maritime Provinces Cape Breton and Prince Edward 
 Island were. by the treaty of Paris, ceded to Great Britain : 
 and, by the proclamation which followed, were annexed 
 "to our government of Nova Scotia." 
 
 Six years later, PRIXCE EDWARD ISLAXD was made a 
 separate province, under a governor of its own, whose 
 commission, also, authorized the calling together of "general 
 assembly's of the free-holders and planters, within your 
 government, in such manner as you in your discretion 
 shall judge most proper," and according to further instruc- 
 tions. The first parliament of Prince Edward Island met 
 in 1773. 
 
 In 1784, NEW BRUXSWICK was made a separate province, 
 with a governor of its own ; and his commission, too, 
 authorized, in somewhat similar phraseology, the summon- 
 ing of a general assembly, which shortly thereafter met. 
 
 Of CAPE BRETOX'S constitutional vicissitudes it is un- 
 necessary to make mention (</). Finally, in 1820, it was 
 re-annexed to the government of Xova Scotia, of which 
 province it has ever since formed, and now forms, part. 
 
 So far as the Maritime Provinces (e) are concerned, the 
 legislatures of to-day, in those provinces, are the lineal 
 descendants of those early "general assemblys." But, as we 
 must show, the sphere of their authority in government, in 
 1867, when Xova Scotia and New Brunswick (/') became 
 part of the Dominion of Canada, was very different from 
 their sphere of authority in 1758, and for many years 
 thereafter. 
 
 QUEBEC not the present province of that name, but 
 practically the now provinces of Quebec and Ontario was 
 
 (d) They are set out at length in 5 Moo. P. C. 259 : In re The Island 
 of Cape Breton. 
 
 (e) The documents relating to the early constitutions of the Maritime 
 Provinces are set out in Return Xo. 70, Can. Sess. Papers, 1883. 
 
 (/) And so as to Prince Edward Inland in 1873. See post.
 
 28 THE CANADIAN CONSTITUTION. 
 
 ceded to Great Britain by the same treaty of Paris, which 
 secured Cape Breton and Prince Edward Island. The 
 proclamation (g), to which we have already referred, which 
 followed upon the cession, simply annexed Cape Breton 
 and Prince Edward Island to the government of Nova 
 Scotia, but erected Quebec into a new province, and made 
 provision for its government. Both by that proclamation, 
 and by the commission to Governor Murray, the institution of 
 a representative assembly was contemplated, but, for reasons 
 upon which it is unnecessary to enlarge, no such assembly 
 ever met thereunder ; and it was not until after the Imperial 
 parliament intervened (for the second time) in the govern- 
 ment of the B. N. A. provinces after the passage of what 
 is known as "The Constitutional Act, 1791" (ft), dividing 
 Quebec into the two provinces of Upper and Lower 
 Canada, and providing for a separate legislature in each 
 province that such assemblies met ; that of Upper Canada, 
 at Niagara, on the 17th of September, 1792, and that of 
 Lower Canada, at Quebec, a few months later. In 1840, the 
 two provinces of Upper and Lower Canada were, by what- 
 is commonly known as "The Union Act" (i), joined together 
 in a legislative union, which lasted until the birth of the 
 Dominion (J). 
 
 We must now retrace our steps, in order to take a com- 
 prehensive view of the nature of the government which was 
 established in the various provinces; and, in taking such a 
 view, it will be, to say the least, convenient to treat of the 
 statutory constitutions of the Upper Provinces separately,, 
 ami to confine our attention, in the first place, to the con- 
 stitutions established (in the exercise of the prerogatives 
 of the Crown) by means of the commissions and proclaina- 
 
 ((/) See Houston, Constitutional Documents of Canada, p. 67. 
 
 (/<) 31 Geo. III. c. 31 (Imp). 
 
 (/) 3 & 4 Vic. c. 35 (Imp). 
 
 (j) We defer consideration of the constitution of British Columbia 
 and of Manitoba and the North West Territories until a later sta<e. See; 
 pott.
 
 PRE-COXFEDERATION CONSTITUTIONS. 29 
 
 tions, to which we have referred. We may say at once 
 that, along both lines, this survey is undertaken in order 
 to show that, prior to the date of Confederation, the 
 Imperial government had, in a tangible way evidenced 
 partly by dispatches, partly by instructions, partly by 
 statutory enactments, partly, perhaps, by long disuse of 
 power along certain lines put upon record their recog- 
 nition of the necessary connection which must exist 
 between the legislative and executive departments of 
 government, as well in the case of a colony as in the case 
 of the United Kingdom. 
 
 As a preliminary to this survey, it is almost indispens- 
 able that we should again refer to what was, in the latter 
 part of the eighteenth and the earlier decades of the nine- 
 teenth century, the accepted explanation of that scheme of 
 government known as the " British Constitution." In 
 those days, the chief commendation bestowed on that con- 
 stitution was on account of the complete separation, as 
 was supposed, of the legislative and executive power 
 legislative supremacy in the parliament, executive supre- 
 macy in the Crown. Opportunity for interference by par- 
 liament to control and regulate executive action, was largely 
 the result of^ the financial necessities of the executive head 
 of the nation ; but, to the extent to which the revenues of 
 the Crown rendered that executive head independent of 
 parliament, the government of the nation was frequently 
 carried on without that body being summoned together. 
 How the change was gradually brought about, until now 
 the supremacy of parliament over the executive, is a clearly 
 established principle of the British constitution, it is 
 beyond the scope of this work to trace (&); but, shortly 
 stated, it would appear to have been effected by the judici- 
 ous use of the power over the purse strings, in order to 
 secure the consent of the Crown to the relinquishment to 
 parliament of the most important, if not the most numer- 
 
 {k) See May's Const. Hist , Vol. ii. p. 39.
 
 30 THE CANADIAN CONSTITUTION. 
 
 ically, of those ' common law ' powers of the executive 
 known, as " the prerogatives of the Crown." But, at the 
 time of which we write, the government of Great Britain 
 was, to an extent very much larger than at present, carried 
 on by the exercise of these prerogatives that is to say, was 
 largely an executive government and of no department 
 \v;vs this more true than of the colonial, " the Board of 
 Trade and Plantations." The very facts to which we have 
 alluded that for very many years after the settlement of 
 Nova Scotia (practically until the B. N. A. Act), no legis- 
 lative interference by the Imperial parliament, in the govern- 
 ment of the Maritime Provinces, took place that provinces 
 were enlarged, divided, joined, all without Act of parlia- 
 ment and that, without Act of parliament, representative 
 assemblies were established therein make manifest the 
 extent to which the government of the early provinces was 
 in the nature of executive government, by prerogative. 
 And yet not entirely so, for in the celebrated case of 
 Campbell v. Hall (I) involving a consideration of the pro- 
 clamation of 1763 (in its relation to Grenada), it was decided 
 by Lord Mansfield, that, although on the acquisition of new 
 territory by conquest or cession, the Crown, without par- 
 liament, may make laws for the government of the con- 
 quered or ceded territory (in), nevertheless, on the grant to 
 the inhabitants of the right to make laws in and by a. 
 representative assembly, the prerogative right of the Crown 
 to make laws in respect of the internal government of the 
 colony is forever gone, and that, thereafter, the Crown 
 stands in the same relation to the representative assembly 
 of the colony as in England to the Imperial parliament; 
 and any withdrawal of the colony's right to make laws can 
 only be effected by the Imperial parliament (n). 
 
 (I) Oowp. 204. 
 
 (m) This was ne of the prerogatives annexed to the Crown as com- 
 niLinder-in-chief a right arising by conquest. 
 
 (n) See post, Chap. VI., In re Lord Bishop of Natal, 3 Moo. P. C. 
 (N.S.) 148.
 
 PRE-COXFEDERATIOX CONSTITUTIONS. 31 
 
 So far, however, as related to the executive functions 
 of government the administration of public affairs, the 
 execution of the laws of the colonies (whether imposed by 
 imperial or colonial legislative authority), the collection and 
 expenditure of the public revenues, and the appointment 
 and control of the executive officials necessary to these 
 ends the theoretical independence of the executive, which r 
 as we have shown, obtained in England, was carried to its 
 practical result in the work of government in the colonies. 
 Theoretically and, indeed, legally, the executive head of 
 the nation, by virtue of its position as a constituent branch 
 of parliament, could prevent encroachment by the legisla- 
 ture upon the prerogatives of the Crown that is, upon the 
 executive department of government but the financial 
 necessities of the executive in England, gradually led, as 
 we have before observed, to the surrender to parliament, 
 or at least to parliamentary control, of the entire executive 
 government of the nation. The Crown occupied, in the 
 colonies, the same position as a constituent branch of the 
 legislature of a colony, but the financial necessities of the 
 executive government were, in these early days of our 
 colonial history, so largely met by the revenues arising 
 from the sale of the Crown lands, fines, tolls, and other 
 royalties of various sorts, and, for the balance, provided 
 for in the Imperial budget, that the executive of a colony 
 was to a large degree independent of the colonial assembly. 
 
 That the early "assemblys " of the provinces were 
 intended to be confined to purely legislative work, and 
 that, in the doing of it, they were not to interfere in the 
 executive government of the colony, is apparent when we 
 corne to study somewhat more closely the commissions 
 of the early governors which were in truth the charters 
 of government in those provinces. 
 
 There is no essential difference in the terms of the com- 
 missions to Governor Cornwallis (Xova Scotia), Governor 
 Patterson (Prince Edward Island), Governor Caiieton (Xew
 
 "32 THE CANADIAN CONSTITUTION. 
 
 * 
 
 Brunswick), and Governor Murray (Quebec): and we there- 
 fore take for comment the first commission which conveyed 
 authority to summon an assembly in the provinces now 
 forming part of the Dominion that to Governor Cornwal- 
 lis (o), of Nova Scotia. " For the better administration of 
 justice, and the management of the public affairs of our 
 said province," the governor was authorized to appoint 
 '' such fitting and discreet persons as you shall either find 
 there, or crry alii</ ->tli you, not exceeding the number 
 of twelve, to be of our council in our said province. As 
 also to nominate and appoint, by warrant under your hand 
 and seal, all such other officers and ministers as you shall 
 judge proper and necessary for our service, and the good of 
 the people whom we shall settle in our said province until 
 our further will and pleasure shall be known." Subse- 
 quent appointments to fill vacancies in the council were to 
 be made by the authorities /'// Ennla ,nl. With the advice 
 and consent of -this council, the governor was empowered 
 to establish courts of justice, and to appoint all the neces- 
 sary ministerial and judicial officers in connection there- 
 with. The public revenue was to be disbursed by the 
 governor's warrant, issued by and with the advice of the 
 council, with this limitation, however, that it was to be 
 disposed of by the governor "for the support of the gov- 
 ernment, and not otherwise." It is hardly to K- wondered 
 at, having in view the mode of appointment, and of filling 
 vacancies in this council, that the executive government of 
 those days came to -be designated by the familiar phrase 
 "the family compact." 
 
 Turning now, to the part played in government by the 
 assemblies, and referring again to the commission to Gover- 
 nor Comwallis, we find him commanded to govern the 
 colony according to his commission, the instructions there- 
 with, or to be^thereafter given (from England, of course i. 
 "and according to such reasonable laws and statutes as 
 
 (o) Houston, Const. Documents, p. 9.
 
 PRE-COXFEDERATIOX CONSTITUTIONS. 33 
 
 hereafter shall be made or agreed upon by you, with the 
 advice and consent of our council and the assembly of our 
 said provinces." 
 
 The legislative power of the governor and assembly, is 
 in terms ample : " To make, constitute, and ordain laws 
 . . . . for the publick peace, welfare and good govern- 
 ment of our said province .... and for the benefit 
 of us, our heirs, and successors ; which said laws are not to 
 be repugnant but, as near as may be, agreeable to the laws 
 and statutes of this our Kingdom of Great Britain." All 
 such laws, however, were subject to disallowance by the 
 Imperial authorities, with no limitation as to the time 
 witlpn which such disallowance should take place. 
 
 We shall have occasion to refer to the position of the 
 Crown as a constituent branch of the Imperial parliament 
 and of colonial assemblies, but the clause providing for this 
 in the commission now under examination, is noteworthy 
 for the frank and undisguised fashion in which it discloses 
 the reason. This clause is as follows : 
 
 " And to the end that nothing may be passed or done by our 
 said council or assembly to the prejudice of us, our heirs and 
 successors, we will and ordain that you, the said Edward Corn- 
 wallis, shall have and enjoy a negative voice in the making and 
 passing of all laws, statutes, and ordinances, as aforesaid." 
 
 The importance of the concession to the early provinces, 
 of the right to frame the laws by which, in local matters, 
 they were to be governed, must not be under- rated. If it 
 cannot be considered as in any fair sense a concession of 
 the right of self-government, it must at least be admitted 
 that it fell short, only because of the theory which then 
 obtained, of the independence of the two departments of 
 government, and because of the inability of the legislative 
 bodies in the colonies to withhold supplies until grievances 
 in the executive department were remedied. ' 
 
 We now proceed to Quebec, in order to examine the 
 changes in the form of government, introduced there by 
 CAN. Cox. 3
 
 34 THE CANADIAN CONSTITUTION. 
 
 Imperial statutes. For eleven years after the Treaty of 
 Paris, the commission to Governor Murray and his succes- 
 sors (read with the proclamation of 1763), was the charter 
 of government ; but, as we have already noticed, no assem- 
 bly ever met in that province, and any legislation which 
 was considered necessary was passed by the governor and 
 his council. Owing to the discontent of the inhabitants, 
 then largely French, at the introduction (which was claimed 
 to have taken place) of English civil law, and owing perhaps 
 to a doubt of the legality of the ordinances of the governor 
 and his council, "The Quebec Act, 1774" (p), was passed by 
 the Imperial parliament. Of this statute, it is necessary 
 to make here only this note, that it revoked the .right 
 to a representative assembly, and lodged both departments 
 of government, legislative and executive, in the hands of 
 the governor and his council ; with this provision, how- 
 ever, that the members of the council were to be appointed 
 from the inhabitants of the province. A perusal of the 
 Act discloses much milder checks on the legislative power 
 than in the case of the earlier commissions ; no doubt 
 because of the union of the legislative and executive powers 
 of government in the same hands (q). 
 
 By "The Constitutional Act, 1791 '" the province of 
 Quebec having been divided by royal proclamation (or 
 rather, the king having signified "his Royal intention to 
 divide his province of Quebec into two separate provinces") 
 provision was made for the establishment, in each of the 
 two provinces, Upper and Lower Canada, of a legislative 
 council and assembly. Beyond giving the assembly so 
 created, the right to legislate as to time, place and manner 
 
 (p> 14 Geo. III. c. 83. 
 
 
 
 (q) By the 13th sec. the Governor and his council were expressly 
 prohibited from " laying" taxes or duties within the province, with the 
 exception of local assessments for municipal purposes. By an Act of 
 the same session (cap. 88) provision was made for raising a revenue by 
 means of duties on ruin, spirits, and molasses, to be disbursed by imperial 
 officers. See the Act ; Houston, Const. Doc. p. 1)7.
 
 PRE-COXFEDERATIOX CONSTITUTIONS. 35 
 
 of holding elections to the assembly, and as to the officers 
 by whom such elections were to be conducted (r), the Act 
 would, upon cursory perusal, appear to give to the legisla- 
 ture no control over the executive, more than had been 
 conferred on the assemblies in the Maritime Provinces; but 
 there is one most important exception, to which particular 
 attention must be given (s). 
 
 We have not, of course, overlooked the rule of law, that 
 the consent of the Crown, by its representative in the 
 colony, to any Act of the colonial legislature curtailing the 
 power of the Crown in the exercise of any prerogative right, 
 is as effective to that end as is an Act of the Imperial par- 
 liament, in similar case ; but by reason of the refusal to 
 concede to the colonies the control of the revenues raised 
 therein, the colonial assemblies were unable to force consent 
 to Acts in curtailment of prerogative. Not being able to 
 starve the executive, they were unable to hold the officers 
 of that department to responsibility for the due perform- 
 ance of their duties ; and whether they had the confidence 
 of the representative branch of the legislature or not, was a 
 matter of perfect indifference to these executive officers. 
 The importance, therefore, of this question of revenue and 
 its expenditure the power to make provision for a revenue 
 and to appropriate it when raised, becomes more and more 
 apparent as we proceed, and the question must now be 
 dealt with. 
 
 The treatment accorded by Great Britain to her colonies, 
 in the matter of taxation, was entirely regulated by the 
 view taken in England of the necessities of Imperial "trade 
 and commerce." At first, of course, the expense of govern- 
 ing the colonies was borne entirely by the home govern- 
 ment, but as early as 1672 (t), the Imperial treasury levied 
 tribute upon the colonies, by the imposition, by Imperial 
 
 (/) A parliament so firm in its claim to exclusive control over elec- 
 tions, as was the British Parliament at that time, could scarcely have 
 done otherwise. 
 
 (s) See_pos, p. 39. (t) 25 Car. IL c. 7.
 
 36 THE CANADIAN CONSTITUTION. 
 
 Act, of export duties on certain articles shipped from the 
 colonies for consumption elsewhere than in England : the 
 proceeds of which duties were, of course, a set-off to the 
 expense of government in those colonies. During the cen- 
 tury which followed, Imperial Acts were from time to time 
 passed, providing for the collection of both export and 
 import duties, but always as part and parcel of the regula- 
 tion of trade and commerce (11). In 1763, permanent pro- 
 vision was made with regard to these colonial duties, and 
 it was provided that the net proceeds thereof should be 
 reserved for the disposition of the Imperial parliament, 
 "towards defraying the necessary expenses of defending, 
 protecting, and securing the British colonies in America" t v >. 
 This, then, was the position of affairs at the time when 
 regular forms of civil government began to be established 
 in Nova Scotia, Prince Edward Island, Xew Brunswick 
 and Quebec. The abandonment by the Imperial parlia- 
 ment, of the principle that these duties were in the nature 
 of regulations of Imperial trade and commerce only, and 
 the extension of the Imperial power of taxation to matters 
 of excise -.to laying tribute, in other words^on internal 
 trade and the consequent loss of the southenihall" of 
 this continent, is a familiar story. During the progress of 
 the struggle, but too late to win back the revolting colonies. 
 the Imperial parliament passed the celebrated Renunciation 
 Act of 1778 (w), by which it was declared and enacted that 
 "the King and parliament of Great Britain will not imp ;>> 
 any duty, tax, or assessment whatever, payable in any of 
 his Majesty's ^plonies^ provinces and plantations in North 
 America or the West Indies: except only such duties as it 
 may be expedient to impose for the regulation of commerce: 
 the net produce of such duties to be always paid and applied 
 
 (M) 14Geo. III. c. 88 (noted above) was a "revenue" Act. See post, p. 39. 
 
 (r) See Todd " Parl. Gov. in Brit. Col .," p. 1G9, et seq. 
 
 (ic) 18 Geo. III. c. 12. This Act is, of course, powerless to bind the 
 Imperial parliament ; but it is a most emphatic expression of a "con- 
 ventional " rule to be thereafter followed.
 
 PRE-CONFEDERATIOX CONSTITUTIONS. 37 
 
 .to and for the use of the colony, province or plantation in 
 which the same shall be respectively levied, in such manner 
 as other duties collected by the authority of the respective 
 general courts or general assemblies of such colony, prov- 
 ince, or plantation, are ordinarily paid and applied," and 
 this principle was followed until the free trade campaign- 
 in England, led to the abandonment of the system of tax- 
 ing trade for the benefit of trade, and, with it, the regula- 
 tion of colonial tariffs by Imperial legislation. 
 
 During this period, however, the practical result of the 
 colonial system was this. With the exception of such sums 
 as the colonial assemblies were minded to raise (usually by 
 the imposition of customs duties), in order to the carrying 
 on of public improvement and promoting settlement, the 
 revenues which came to the hands of the executive were, 
 (1) the proceeds of customs, excise and license duties, 
 levied under Imperial Acts ; and (2) the hereditary, 
 territorial and casual revenues of the Crown, consisting of 
 the proceeds of the sale or lease of the " waste " lands in 
 the colonies, fines, tolls, etc. Over the revenues arising 
 under colonial Acts, the colonial legislatures could, of course, 
 and did insist on retaining power of appropriation, and. 
 so far as these revenues were concerned, could withhold 
 supplies ; but their action in such case made no difference 
 to the executive, however it might do harm to the colony. 
 The cost of the administration of justice, and of civil 
 government (including, as it did, the salaries of tine entire 
 executive staff, administrative and judicial), was paid out 
 of the other two sources of revenue, and over these the 
 colonial assemblies had for many years no power of appro- 
 priation or control. To secure control of the executive 
 to make them feel responsibility-jrit was indispensably 
 necessary to get control of- these revenues and their appro- 
 priation ; and the history of the growth of the principle of 
 " Responsible government " is the history of the gratlual 
 acquisition by the ^ ] ^1 1pi^jHtures of the rightJfcL. 
 
 er source within the
 
 38 THE CANADIAN CONSTITUTION. 
 
 colony arising. The " tenure-of -office " question practically 
 depended upon this question of control over the purse 
 strings. 
 
 In all the provinces, the real issue was somewhat 
 obscured by reason of the fact that, under the then ar- 
 rangement, the legislative council, or second chamber, acted 
 as a shield to the governor and his executive council, and 
 was interposed to bear the brunt of all attacks upon 
 executive methods. In the earlier stages of colonial his- 
 tory, the executive council was really a branch of the 
 legislature, and it always continued potentially so, by 
 reason of its members forming the influential portion of 
 the Crown-appointed legislative council. This position of 
 affairs, however, gave the disputes between the legislature 
 and the executive, the appearance of being disputes 
 between the two branches of the legislature ; and it is 
 
 O ' 
 
 not surprising, therefore, to find that the efforts of Howe, 
 Wilmot, Papineau, and Baldwin, were directly and osten- 
 sibly bent to secure reform in the constitution of the 
 legislative council (x). The real issue, however, was the 
 question of executive responsibility, and, as we have 
 endeavored to point out, that question largely depended 
 upon, and was ultimately solved by, the solution of the 
 more sordid one as to control of expenditure. Perhaps, 
 there was a lack, too, of proper appreciation of the way in 
 which the principle of responsible government was working 
 its way into the fibre of the British constitution through 
 the medium of cabinet government and this may have 
 tended to the adoption of the less direct route to the 
 establishment of responsible government here. It nee<lr<l 
 men like Lord Durham and Charles Buller, who were 
 able to see through tl* intricacies of governmental machin- 
 ery and discern the true principle of the British system, 
 
 (x) J. G. Bourinot, "Responsible Government in Canada" a paper 
 read before the National Club, Toronto, during the winter of 1890-91, 
 and published sub. tit. " Maple Leaves," p. 43.
 
 PKE-COXFEDEUATIOX COXSTITUTIOX.S. 39 
 
 to point out how that same principle could be made effect- 
 tive in the colonial machinery of government. 
 
 The first concession gained, was of the power of appro- 
 priating the proceeds of Imperial tariffs in force in the 
 colonies. As far back as "The Constitutional Act, 1791," this 
 power of appropriation was expressly given to the legisla- 
 tures of Upper and Lower Canada, over the proceeds of all 
 customs duties levied as part of the commercial policy of 
 the Empire ; and this is the point of distinction between 
 the powers of the colonial assemblies under that Act, and 
 under the earlier commissions, to which reference was made 
 a few paragraphs back (y). But the only Imperial tariff 
 Act in force in Canada, was the Act of 1774 a revenue 
 Act (z) ; and because that Act was contended not to come 
 within the terms of "The Constitutional Act, 1791," express 
 legislation was necessary to give the Colonial legislature 
 control over the revenue arising under that Act. This was 
 obtained in 1831 (<i). 
 
 Still, however, in all the provinces, the "hereditary, 
 territorial, and casual revenues" to which we have referred 
 vrere amply sufficient to "pay the piper" ; and so far as 
 the salaries of all the executive "family-compact" staff 
 were concerned, the legislature had power neither to fix 
 nor withold them. Secure in the enjoyment of the emolu- 
 ments of office, the executive were able to thwart the 
 wishes of the popular branch of the legislature, and to 
 decline to recognize its right to control or regulate their 
 mode of conducting public business. 
 
 The history of the struggles, which in the Upper Pro- 
 vinces culminated at one time in open rebellion, and in all 
 resulted in the firm establishment of Responsible Govern- 
 ment, is beyond the scope of this work ; but it is curious to 
 
 (y) Ante, p. 35. (z) See note ante, p. 36. 
 
 (a) 1*2 Wm. IV. c. 23. See Houston 'Const. Doc.' p. 106; Andrew 
 v. White, 18 U. C. Q. B. 170.
 
 40 THE CANADIAN CONSTITUTION. 
 
 note that the contemporary statutory record (b) appears in 
 Acts relating to colonial control of colonial finances, the 
 " tenure of office " question appearing only in the " conven- 
 tional " aspect of despatches, instructions, etc. (c). Not to 
 dwell at undue length upon this point, we may mention 
 shortly, that first to New Brunswick, and afterward to 
 Canada, (1847), and Nova Scotia (1849), full control over 
 the revenues from all sources was conceded ; and having 
 that full control, the Legislative Assemblies slowly, but 
 surely, overcame the stubborn resistance, or active opposi- 
 tion of the governors of the early forties, and the principle 
 of executive responsibility was firmly and permanently 
 established in all the pre-Confederation provinces. 
 
 We are now, perhaps, in a position to define with some 
 accuracy, the nature of the constitutions existing in the 
 provinces immediately prior to the coming into force of the 
 B. N. A. Act. 
 
 What Lieut.-Gov. Archibald has said (d) in reference to 
 the constitution of Nova Scotia is clearly applicable to the 
 other maritime provinces : " No formal charter or constitu- 
 tion ever was conferred, either on the province of Nova 
 Scotia or upon Cape Breton while that island was a sepa- 
 rate province. The constitution of Nova Scotia has always 
 been considered as derived from the terms of the royal 
 commissions to the Governors and Lieutenant-Governors, 
 and from the " instructions " which accompanied the same, 
 moulded from time to time by despatches from Secretaries 
 of State, conveying the will of the Sovereign, and by Acts 
 of the local legislature, assented to by the Crown ; the 
 
 (b) 1 & 2 Wm. IV. c. 23 (Imp.) ; 8 Wm. IV. c. 1 (N.B.) ; 3 & 4 Vic- 
 es. 35 (Imp.) ; 6 & 1 Vic. c. 29 (Imp.) ; 6 Vic. c. 31 (Can.) ; 9 & 10 Vic. 
 c. 94 (Imp.) ; 9 Vic. c. 114 (Can.) ; 10 & 11 Vic. c. 71 (Imp.) ; 12 & 13 Vic. 
 c. (N.S.) ; 12 & 13 Vic. c. 29 (Imp.) ; 15 & 16 Vic. c. 39 (Imp.) ; 17 & 18 
 Vic. c/118 (Imp.) See Mercer v. Atty.-Genl. of Ont., 5 S. C. R. at p. 700, 
 et seq., for an historical statement by Gwynne, J., on this subject. 
 
 (c) Todd, Parl. Govt. Brit. Col., pp. 25-6. 
 ((/) Can. Sess. Papers, LS33, No. 70.
 
 PRE-CON FEDERATION CONSTITUTIONS. 41" 
 
 whole to some extent interpreted by uniform usage and 
 custom in the colony." 
 
 In (old) Canada the form of government was prescribed 
 by the Act of Union (e). But as to all the provinces, it 
 can be truly said that their constitutions were modelled on 
 the pattern of the parent state, both as to their govern- 
 mental machinery and as to the principle on which they 
 were operated. In outward form, there is a close resem- 
 blance between the British constitution and the constitution 
 of those provinces the same single executive, the same 
 legislative machinery (even to a second chamber), with 
 about the same apparent connection between the two de- 
 partments of government. And upon inquiry further into 
 the motive power and the mode of its application, we may 
 say that just as in the case of the Imperial parliament, so 
 here in the case of the pre-Confederation provinces, one 
 will look in vain for any statute laying down the rules 
 which shall govern in the matter of the formation, the 
 continuance in office, or the retirement of the Cabinet. The 
 " conventions of the constitution," whose slow growth had 
 gradually culminated in the full recognition of the principle 
 of executive responsibility to parliament, was by the simple 
 method we have shortly described by instructions to the 
 governors introduced as the working principle of the pro- 
 vincial constitutions. 
 
 Of the causes which led to the adoption by the pro- 
 vinces of the Resolutions of Quebec, upon which the 
 B. X. A. Act is founded, it is for the historian to treat. So 
 far as those causes affected the terms of the union, as to the 
 distribution of the field of governmental action, we shall, of 
 course, have occasion to refer to them hereafter. Here we 
 need only point out, that in agreeing to the establishment 
 of a " general " government, charged with matters of com- 
 
 (e) 3 & 4 Vic. c. 35 (Imp.)
 
 42 THE CANADIAN CONSTITUTION. 
 
 inon concern, the provinces resolved that such general 
 government should be modelled on the British constitution, 
 and that its executive authority should be administered 
 according to the well-understood principles of the British 
 constitution. We may say, therefore, of both the Dominion 
 and the provincial governments : " That great body of 
 unwritten conventions, usages, and understandings, which 
 have in the course of time grown up in the practical 
 working of the English constitution, form as important a 
 part of the political system of Canada as the fundamental 
 law itself which governs the federation " (f). 
 
 (/) Bourinot, ' Maple Leaves, 1 p. 87.
 
 CHAPTER III. 
 
 WHAT BECAME OF THE PRE-CONFEDERATIOX 
 CONSTITUTIONS ? 
 
 As justification for the last chapter, it was asserted that 
 in order to establish the Dominion government, and the 
 federal scheme of the B. N. A. Act, the slate had not been 
 cleaned ; and we shall endeavor to make good that justi- 
 fication. 
 
 In comparing the British and United States systems of 
 government, the really federal character of the former 
 viewed as an Imperial constitution was pointed out : but 
 the gradual working out of the federal idea in the Imperial 
 constitution (through continuous concessions of powers of 
 self-government to the colonies) was contrasted with the 
 studied action of the Fathers of the American Union, in 
 taking this federal idea as the starting point of their 
 departure (). The reason is apparent. Thirteen self- 
 governing communities occupied one compact territory : 
 their inhabitants were of common origin, and had common 
 
 O ' 
 
 interests ; and they deliberately set to work to establish 
 a "national" government, charged with the control of those 
 matters which were deemed of common interest, but, just 
 as deliberately, they insisted upon preserving their right to 
 regulate their local concerns in their local assemblies. And 
 so in relation to the enactment of the B. X. A. Act : there 
 
 (a) See ante, Chap. I., p. 5, et *?q.
 
 44 THE CANADIAN CONSTITUTION. 
 
 was the same fact of pre-existing governments, the same 
 desire for united action on matters of common concern, and 
 the same deliberate refusal (based on the same desire to 
 preserve local autonomy) to establish a legislative union, 
 or what has been styled a " Unitarian " system. 
 
 Opinions may very reasonably vary at different periods 
 as to where the line should be drawn which is to divide 
 matters of common or " national," from matters of " local '' 
 concern ; and this variation in opinion is manifest in 
 the assignment to our Dominion government of several 
 subject matters, which, under the scheme of division 
 adopted by the convention of 1787, were not assigned 
 to their national government for example, criminal law, 
 and the law of " marriage and divorce " (6). When the 
 idea of a Canadian Confederation began to take prac- 
 tical shape, the United States was in the throes of its 
 civil war, and the notion was prevalent that that war 
 had been caused by the weakness of the " national " 
 government, arising from including among "state rights" 
 the "residuum of poiver," as it has been termed. That the 
 war was not caused by any such defect in the division of 
 the field of governmental action was then pointed out (c), 
 and has been since fully demonstrated ; but the prevalence 
 here of that notion led the fathers of confederation to 
 desire a strong central government, and to that end the 
 "residuum of. power" is, under the B. N. A. Act ? with the 
 Dominion government (d). This fact has been much 
 utilized in argument, to" belittle the sphere of authority of 
 the Provincial governments, and because, as it is put, these 
 latter are governments possessing only" enumerated powers," 
 
 (b) That the assignment of these (as matters of common concern re- 
 quiring uniformity of treatment) to the " national " government is 
 more consonant with morlern ideas, is apparent from the numerous ex- 
 pressions of opinion from across the line, in favor of an amendment of 
 the U. S. constitution in these particulars. 
 
 ((.) See the speech of Mr. C. Dunkin Confed. Deb., p. 491. 
 
 (d) See sec. 91.
 
 PREVIOUS CONSTITUTIONS. 45 
 
 the argument is pushed to this length, that the constitutions 
 of the pre-Confederation provinces were, by the B. N. A. 
 Act, completely wiped out, and that the powers, both 
 legislative and executive, of the post-Federation provinces 
 and without regard to any necessary connection between 
 these two departments of government are such only as 
 are to be found expressly set out in the B. X. A. Act. If 
 that is the result of the enactment, never did legislation 
 fail more egregiously in carrying out of the design of its 
 promoters. The Quebec Resolutions convey no hint that 
 the negotiating provinces desired more than to establish a 
 "federal" union on terms which would be just to the 
 provinces, and leave their autonomy, as to matters local, 
 unimpaired. But these Resolutions, if proper to be referred 
 to at all, can perhaps be cited to aid only in the construc- 
 tion of doubtful or ambiguous phraseology in the B. N. A. 
 Act (e), and, therefore, the terms of the Act itself must be 
 looked at carefully on this point. But, first, it is necessary 
 to advert to the inaccuracy of the phrase, "residuum of 
 power." As has already been pointed out, there is not, 
 under a federal system, any necessary division of power, 
 in the proper sense of the term ; the essential division 
 which exists, being a division of the subjects proper for 
 governmental regulation, into two classes of matters 
 matters of "national," and matters of "local" concern. 
 Just what matters belong to the one class, and what to 
 the other, is a question upon which, as we have said, 
 opinion may vary, but whether the matters of "national" 
 concern are enumerated, and the residuum left as of "local" 
 concern (as by the IT. S. constitution), or the matters of 
 "local" concern enumerated, and the residuum left as of 
 "national" concern (as is partially the case with us), is 
 matter of indifference, so lono- as the enumerated class is 
 
 O 
 
 sufficiently comprehensive to satisfy public opinion, at the 
 time, as to the proper line of division. But what is essen- 
 
 (e) See post, Chap. X.
 
 40 THE CANADIAN CONsTriTTK >N. 
 
 tial, is, that to the full limits of the matters entrusted to 
 each government, national or local, the power of govern- 
 mental action should be full and complete. It will be 
 noticed, of course, that the division effected by the B. X. A. 
 Act is a division of matters for legislative action, but this 
 must involve a division along the same line for executive 
 action. Any other arrangement would be a clear departure 
 from that principle of the British constitution, upon which 
 we have dwelt at some length in earlier pages the suprem- 
 acy of the maker of a law over the executor of that law 
 a principle which is dominant in every Anglo-Saxon com- 
 munity, unless, indeed, Canada is now, as is claimed, the 
 exception. 
 
 That principle, as we have pointed out, clearly obtained 
 in the pre-Confederation provinces as the result of the 
 long struggle for " responsible government," and it is im- 
 portant therefore to ascertain whether, under the B. N. A, 
 Act, the provincial constitutions con flu/i <> ; for if so, then 
 the same connection between the legislature and the execu- 
 tive, which existed before confederation^ must still continue, 
 with respect to the subjects of provincial cognizance. 
 
 Any complication which may exist in connection with 
 tl i is c [uestion has arisen from what has been termed " the 
 necessities of the draftsman." One cause of the support 
 given in the two parts of (old) Canada, to the scheme pro- 
 pounded by the Quebec Resolutions, was that it made pro- 
 visi:>n for the severing of the tie of legislative union 
 1) -tween them ; and the carrying out, in one Act of parlia- 
 ment, of this design and the larger federal scheme, neces- 
 sitated first the severance of that tie, and then the creation 
 by the Act of a federal union between the four provinces. 
 But, while on the one hand this necessity, and the mode of 
 meeting it, adopted in the Act, has provided a small peg on 
 which t > hang an argument adverse to the provinces (/), 
 
 (/) As a matter of construction, it would appear that sees. 5, 6 and 7, 
 point merely to the territorial limits to b3 assigned to the different pro- 
 vinces of the Confederation.
 
 PREVIOUS COXSTriUTIoXS. 47 
 
 it has also provided several others, upon which a very 
 strong argument may be heaped, in support of the full 
 autonomy of the provinces in relation to the subjects 
 allotted to them. Old Canada being thus divided into its 
 original divisions, with new names, it became necessary 
 to make provision for the establishment of new govern- 
 mental machinery, legislative and executive, in Ontario 
 and Quebec. Eliminate from the Act all clauses inserted 
 to this end ; consider Ontario and Quebec as having had 
 governmental machinery such as existed in the Maritime 
 Provinces : and the Act would clearly appear as an Act for 
 the establishment of federal machinery only, for drawing 
 the line of division between matters proper for the con- 
 sideration of the " general " government, and those proper 
 for the consideration of the " local " governments, and for 
 the making over to the federal government of certain por- 
 tions of the assets and revenue-producing powers of the 
 provinces. The very use of the form federal in connection 
 \vith the creation of a central government for territory 
 occupied by previously existing governments, mutually 
 independent, would seem to imply the continued existence 
 of the individual governments, parties to the fced-us ; and 
 the fact that no provisions were made for Xova Scotia and 
 New Brunswick, similar to those made for Ontario and 
 Quebec, would appear to point to the conclusion that the 
 _; )\ i-rmuental machinery of those provinces was to continue 
 as before, employed, of course, upon a somewhat smaller 
 range of matte is. 
 
 The type of governmental organization in the pre- \ 
 Confederation provinces was one and the same a single 
 executive head (assisted by an executive council), and a 
 legislature (g) and the principle upon which the whole 
 worked in the actual government of the provinces was the 
 principle of executive responsibility to the electorate 
 
 ((;) The existence or non-existence of a second chamber is in no way 
 material.
 
 4 s -) THE CANADIAN CONSTITUTION. 
 
 ihrouo-h the legislature. The B. X. A. Act makes provision. 
 
 O O *- 
 
 as to all the provinces, for a single executive head in each, 
 but judging from the absence of any provision for the 
 appointment of the Governor-General, it may be doubted if 
 such provision would have been expressly made in regard to 
 the Lieut.-Governors, had it not been intended to alter the 
 mode of appointment, *o as to make each provincial execu- 
 tive head, a link in the chain of federal connection (h). As 
 to the '' powers, authorities, and functions " of that execu- 
 tive head, they are particularly mentioned only as to 
 Ontario and Quebec (i}, and as to those two provinces only 
 so far as they were dependent for their existence ii/>n 
 ,sf( i filter, either of the Imperial parliament or the parlia- 
 ments of (Old) Canada. This latter limitation has been 
 urged as supporting the view that certain of the " powers, 
 authorities, and functions " those depending for their effi- 
 cacy upon the common bur exercisable by the Governors 
 (or Lieutenant-Govemors) of the pre-Confederation pro- 
 vinces, are now, even as to matters within the legislative 
 authority of Ontario and Quebec, exercisable only by the 
 Governor-General 
 
 We shall deal with this contention in a moment, merely 
 I'd i lurking now that such a construction of the Act, would 
 create diversity in the position of the different provinces, 
 and would be a departure from the principle insisted on. as 
 apparent throughout the British constitution the co-ex- 
 tensive and complementary sphere in government, of the 
 executive and legislative departments. The matter material 
 to be now noted is, that these xfufufurt/ powers had been 
 conferred upon the holder of a particular office which was 
 now to be divided, and therefore a statutory re-allotment, 
 so to speak, had to be made. The language of the section 
 to which we are now referring (sec. (io). and of what may 
 be called its companion section (sec. 12). bears out. too, our 
 
 (/<) Compare sees. 10 and 58, B. N. A. Act, 1867. 
 (j) B. N. A. Act, sec. 65.
 
 PREVIOUS CONSTITUTIONS. 49 
 
 criticism of the phrase, "division of power," inasmuch as 
 both sections carefully avoid using any such term as 
 " division." Treating the " powers, authorities, and func- 
 tions" conferred by previous legislation as a sum total, they 
 carefully provide that all these powers, etc., so far as they 
 are capable of being exercised after the union, in relation to 
 the government of the Dominion and the provinces respec- 
 tively, shall be vested in the Governor-General, or in the 
 Lieutenant-Governors, as the case may require. 
 
 To revert now to the argument founded on the limita- 
 tion of sections 12 and 65 to statutory "powers," etc. We 
 have already indicated " the necessities of the draftsman," 
 as the reason for their insertion in the Act. But for that 
 necessity, they would not have appeared, and we should 
 have to look to some other part of the Act in order to 
 ascertain the position of the executive head of the different 
 provinces, as, indeed, we have to do with reference to Nova 
 Scotia and New Brunswick. If there were no express 
 provision, we should still contend that, as executive head 
 of the province, a Lieutenant-Govemor is invested with all 
 the " powers, authorities, and functions " necessary to carry 
 on the government of the province that wherever provin- 
 cial legislation requires, in order to its complete and efficient 
 enforcement, the sanction of executive action, all the "powers, 
 authorities, and functions" (prerogative and otherwise) 
 necessary to such enforcement, reside in, and are exercise- 
 able by, the executive head of the provincial government 
 (j). But we are not limited to this application of legal 
 principles, incontestable though they be. Sec. 129 of the 
 B. N. A. Act is clear upon this matter : 
 
 " Except as otherwise provided by this Act, all laws in force 
 in Canada, Nova Scotia or New Brunswick, at the Union, and 
 all courts of civil and criminal jurisdiction, and all legal commis- 
 sions, powers and authorities, and all officers, judicial, administra- 
 
 (j) See judgment of Burton, J.A., in Atty.-Gen'l (Can.) v. Atty.- 
 Gen'l (Ont.), 19 O. A. B, 38. 
 CAN. Cox. 4
 
 50 THE CANADIAN CONSTITUTION'. 
 
 tive and ministerial, existing therein at the Union, shall continue 
 in Ontario, Quebec, Nova Scotia, and New Brunswick respectively, 
 as if the Union had not been made, subject nevertheless (except 
 with respect to such as are enacted by, or exist under, Acts of the 
 Parliament of Great Britain, or of the Parliament of the United 
 Kingdom of Great Britain and Ireland), to be repealed, abolished 
 or altered by the Parliament of Canada, or by the legislature of 
 the respective province, according to the authority of the par- 
 liament or of that legislature under this Act." 
 
 The language of this section is very comprehensive. It 
 continued the whole body of pre-existing laws and legal 
 institutions, " except as otherwise provided by this Act "; 
 and excepting Imperial Acts and institutions existing 
 under Imperial Acts, it divided the entire Held of law (in 
 its widest sense) between the Dominion and the provinces, 
 " according to the authority of the parliament or of that 
 legislature under this Act." This body of law would in- 
 clude every branch of jurisprudence the lex prerogatives as 
 well as the other branches. Combined with sec. 12, it 
 carries the whole executive power incident to the legislative 
 sphere of authority of the Dominion parliament, to the 
 Dominion ; and, combined with sec. 65, it has precisely the 
 same result in relation to the government of the provinces (/). 
 
 With regard to the executive council in each province 
 in other words, the Cabinet we have to point out that 
 no provision is made for such a council in New Brunswick 
 or Xova Scotia, beyond what maybe gathered from the 
 express enactment that the constitution of the executive 
 authority in those two provinces, should cmttl ,-m<- as before 
 the passing of the B. X. A. Act ; while, in regard to Ontarii > 
 and Quebec, the appointment of the first officers who are to 
 constitute the executive council in those provinces is pro- 
 vided for. There is this difference, too, to be remarked 
 between the section of the Act which provides for the 
 
 (k) Dobie v. Temporalities Board, L. R. 7 App. Ca3. 136; and see 
 notes to B. N. A. Act, sees. 12, 65 and 129, post.
 
 PREVIOUS CONSTITUTIONS. 51 
 
 Privy Council of the Dominion (sec. 11) and the correspond- 
 ing section as to the executive councils of Ontario and 
 
 o 
 
 Quebec (sec. 63), namely, that the latter seems to take it 
 for granted (if we may use the expression), that there is to 
 be an executive council in those two provinces ; while the 
 former distinctly provides that " there shall be " a Privy 
 Council for Canada. It may here be remarked that 
 nowhere in any statute book will be found any Act which 
 lays down that such executive council shall continue to 
 hold office only so long as it commands the confidence of 
 the legislature : but the existence of that " convention of 
 
 ~ y 
 
 the constitution," and its ralson d'etre, have been already 
 dealt with at sufficient length, and no one, we fancy, would 
 argue that any significance attaches to its absence from the 
 B. X. A. Act.. As put by Lord Russell, in his famous dis- 
 patch (I), of September 7th, 1839, conveying to Lord Sy den- 
 ham his "instructions" as to the government of Upper. 
 Canada: "It is evidently impossible to reduce into the] 
 form of a positive enactment, a constitutional principle oi 
 this nature." But not only is the appointment of the first" 
 members of the Cabinet provided for in the case of Ontario 
 and Quebec, but provision is also made as to their " rights, 
 powers, duties, functions, responsibilities or authorities " 
 the draftsman was certainly exhaustive in his phraseology 
 and what has just been said as to the sections dealing 
 with the powers, authorities and functions of the executive 
 head, is equally applicable to sec. 135, which makes this 
 provision as to the executive officers under him. All the 
 "powers, etc.. etc.," which the executive officials named, had 
 in relation to the government of Canada, are to be vested 
 in the officers of the provincial governments, in relation to 
 those governments. There is no division of power, but of 
 sphere of authority only. 
 
 Equally significant of the continued existence of the 
 pre-Confederatioii constitutions, are the clauses of the 
 
 (l) Can. Ass. Jour., 1841, pp. 390-6, App. BB.
 
 52 THE CANADIAN CONSTITUTION. 
 
 B. X. A. Act, dealing with the constitution of the legisla- 
 tive authority in the provinces (in). For Ontario and 
 Quebec, legislatures had to be provided. The constitution 
 of those legislatures is, of course, entirely the creation of 
 the B. N. A. Act; but, so far as the creative clauses are 
 concerned, there is nothing to indicate any difference in 
 principle, between the constitution of those legislatures, 
 and the constitution of other colonial legislatures, beyond 
 the absence in the " constitutional " statutes relating to 
 those other colonies, of any division of the sphere of 
 their legislative authority. But for Nova Scotia and New 
 Brunswick no legislatures were created, it being provided 
 (just as had been provided with regard to the executive) that 
 the constitution of the legislature of each of those provinces 
 should co'iiii iini- as it existed at the Union. The House of 
 Assembly of Nova Scotia, as it happened, had been dis- 
 solved, so that new provincial elections were necessary. 
 and, in order to save expense, it was provided (?i) that 
 such new elections should take place at the same time as 
 the first elections for the House of Commons of the 
 Dominion. But, as to Xew Brunswick, its House of 
 Assembly was still alive, and it was expressly provided that 
 it should continue (unless sooner dissolved) for the period 
 for which it had been elected. As to both Nova Scotia 
 and New Brunswick, the B. N. A. Act contains no provision 
 for the summoning of their Assemblies, for the length of 
 time they should live, for yearly sessions, or as to the 
 conduct of their business: as to all of which matters. 
 minute provision is made as to the legislatures of Ontario 
 and Quebec (o). 
 
 The group of clauses </o of the Act, dealing with the 
 division of the assets of the provinces, between those prov- 
 inces and the Dominion, bears throughout marks of the 
 
 (m) Sees. 69-90. (H) B. N. A. Act, sec. 89. 
 
 (o) Note, however, sec. 9 ', s-s. 1, post, 
 (p) Group VIII , sees. 102-126.
 
 PREVIOUS CONSTITUTIONS. 53 
 
 draftsman's idea that the pre-Confederation provinces con- 
 tinued; they "shall retain all their respective public 
 property not otherwise disposed of in this Act " (q) ; and 
 certain duties and revenues are "reserved to the respective 
 legislatures of the provinces (r)" 
 
 The division of the group of miscellaneous provisions 
 (s) into "general," and "Ontario and ^Quebec" is in itself 
 significant, and the absence of provisions for New Bruns- 
 wick and Xova Scotia, similar to those made to meet the 
 needs of the newly created governments of Ontario and 
 Quebec provisions as to the executive staff; as to the 
 Great Seals to be used ; as to the construction of temporary 
 Acts of the parliament of old Canada, etc. would seem to 
 make it perfectly clear that the constitutions of the pre- 
 Confederation provinces "by the sea," at all events, were not 
 intended to be destroyed, and at most, it can only be said, 
 that the constitution of old Canada was re-cast and made 
 into two, each on the same pattern as the one had previously 
 exhibited. 
 
 Upon consideration, it would appear that the really 
 essential point to be determined in connection with this 
 controversy, is the actual presence in the provincial 
 machinery of government (in their constitutions, in other 
 words,) of the same working principle as was present in 
 the constitution of the pre-Confederation provinces. As to, 
 Xova Scotia and New Brunswick, there can be no doubt, 
 as the B. N. A. Act is distinct, that the constitution of the 
 executive and legislative authority in those provinces and 
 these two departments comprise the whole round of govern- 
 ment shall continue ; and the controversy must therefore 
 be limited to Ontario and Quebec. And as to these two 
 provinces, it has already been remarked that the clauses 
 which create their legislative and executive machinery 
 
 (q) Sec. 117. 
 
 (r) Sec. 102; and see also sec. 126. (s) Group IX.; sees. 127-144.
 
 54 THE CANADIAN CONSTITUTION. 
 
 differ in 110 essential respects from the similar clauses in 
 other Imperial Acts creative of colonial constitutions, the 
 presence in which of the principle of the co-extensive ami 
 complementary nature of the executive and legislative 
 powers in government, cannot be gainsaid. No Act, 
 Imperial or Colonial, has ever expressly so enacted ; but it 
 is the legal principle of the British constitution, and of the 
 colonial constitutions of the Empire as well. And when we 
 find, as a comparison of the various "constitutional Acts" 
 for the colonies will show, that the machinery of govern- 
 ment provided by those Acts is "all of a piece," an argu- 
 ment is afforded in favor of, rather than against, the 
 existence of the same working principle in each. Compare, 
 for instance, the clauses of the B. X. A. Act, creating the 
 executive and legislative machinery of the Dominion gov- 
 ernment, with those creating the like machinery of the 
 governments of Ontario and Quebec, and both sets of 
 clauses with the similar provisions of the Acts relating to 
 (say) the Australasian colonies, and no essential difference 
 can be found (#) nothing to indicate that in one the 
 l;\\\~-iii<ij,-i a'./ power is supreme over the authority which 
 executes that law, and that in another the two are not 
 co-terminous. The fact is, that government is one,, and 
 indivisible. The "sanction" of a law is executive action, 
 and no impossible attempt to create two independent 
 powers in relation to any given subject matter, i- made by 
 any of these "Constitutional Acts." 
 
 (0 Compare B. N. A. Act with the Union Act (3 & 4 Vic. c. 35), and 
 with the Constitutional Acts of New South Wales (5 & G Vic. c. 76: 7 & 8 
 Vic. c. 74 ; 13 A- 14 Vic. c. 59, etc.) ; of Victoria (13 & 14 Vic. c. 59; 18 & 
 I'.i Vic. c. 55, etc.); of Newfoundland (5 A: 6 Vic. c. 120; 10 A- 11 Vic. 
 c. 44), aud of Queensland r21 \- 2~> Vic. c. 44). See Forsyth, Constitu- 
 tional Law. p. '27. for an enumeration of the various " Constitutional 
 Acts" for the colonies.
 
 PART II. 
 
 THE RESULTS OF OUR COLONIAL STATUS.
 
 CHAPTER IV. 
 
 WHAT IMPERIAL ACTS AFFECT US? 
 
 While we have, in the preceding chapters, endeavored 
 to distinguish clearly bstween the law and the " conven- 
 tion*" of the constitution, we have necessarily had to deal 
 with both. In the light of the conventions of the constitu- 
 tion, the parliament of the United Kingdom has been 
 described as a legislature possessed of a dual nature, par- 
 taking of the character both of an " Imperial " parliament 
 and of a "local" parliament for the United Kingdom. It 
 must be again admitted, however, that although, by those 
 usages and precepts of the constitution, the field of govern- 
 mental action properly to ba occupied by the Imperial 
 parliament, is practically though hot yet perhaps very 
 definitely limited, the law of the constitution recognizes 
 110 limit capable of judicial enforcement. 
 
 For the whole British Empire, legislative sovereignty 
 resides in the Imperial parliament, and when that body 
 undertakes to legislate for the colonies generally, or for 
 any one of them in particular, its enactments are a law 
 unto such colony, binding on its inhabitants, and peremp- 
 torily requiring recognition by the judges in its courts (/ ) 
 and no colonial legislature lias power, directly or by a side 
 wind, to alter, in one jot or tittle, any such Imperial enact - 
 
 (a) Letter by Historicus, in London Times, June 1, 1879 ; Dicey, Law 
 of the Const. ; Clark, Colonial Law, 10.
 
 56 THE CANADIAN CONSTITUTION. 
 
 ment (6). That, in certain instances, colonial legislatures 
 have been empowered by Imperial legislation (c) to exclude 
 their particular colony from the operation of some par- 
 ticular Act usually upon terms is the exception which 
 proves the rule. It must be kept clearly in mind, that we 
 are not now discussing the " conventional " limits set to 
 this legislative sovereignty. For the judge and the lawyer, 
 there are no limits ; for them there is, in the performance 
 of their respective duties, no escape from the " literary 
 theory." They have to do with legal rights ; and, for 
 Canada at least, legal rights are, in the ultimate analysis, 
 founded upon Imperial enactment. By Imperial enactment, 
 we enjoy representative government ; by Imperial enact- 
 ment, that enjoyment could be (as once indeed it has been) 
 taken from us; by Imperial enactment, the legislative power 
 conferred upon our parliaments, has been more or less 
 limited ; by Imperial enactment only, can a change be 
 effected in those limits. No power, even its own, can tie 
 the hands of the Imperial parliament (d) ; and the boundaries 
 set to colonial freedom of action in one session of that par- 
 liament may be enlarged in the next, and again restricted 
 in a third. And as in these larger matters, so in any the 
 smallest question (e) involving the legal rights of the 
 
 ' i*"""^*3Lai^^fc. O O _^^__^__^__ 
 
 individual, if she will, she legally may, aiiH every British 
 Judge, m every part of the British Empire, is bound to give 
 effect to the expressed will of the Imperial parliament. 
 So well settled is the paramount legislative authority of 
 the Imperial parliament, that English judges have not 
 hesitated to lay it down that : 
 
 "If the legislature of England in express terms applies 
 its legislation to matters beyond its legislatorial capacity, 
 
 (b) Craw v. Ramsay, Vaagh., 292. See post, Chap. IX. 
 
 (c) E. a. 9 & 10 Vic. c. SH, empowering the colonies to repeal Imp. 
 tariff Acts. 
 
 (d) Auchterarder case, Mac. & R. (H.L.) 238 ; Dicey, Law of the 
 Const., 61. 
 
 (e) Such, for instance, as arose in Gordon v. Fuller, infra.
 
 WHAT IMPERIAL ACTS AFFECT US < 
 
 an English court must obey the English legislature, how- 
 ever contrary to international comity such legislation may, 
 be" (/). 
 
 It may perhaps seem that we have dwelt with undue 
 emphasis on this point, but a glance at some Canadian 
 authorities will make it apparent that, even on the bench, 
 the legislative omnipotence of the Imperial parliament 
 perhaps we should rather say the legislative impotence of 
 our colonial legislatures to alter an Imperial enactment 
 has not been admitted in its entirety without much dis- 
 cussion. Moreover, a clear recognition of this fundamental 
 fact in the structure of the Canadian constitution, should 
 tend to make our statesmen all the more careful that the 
 limits within which this omnipotence is to have "conven- 
 tional" scope, are clearly defined. The ultimate legal 
 power whose mandates must be judicially enforced 
 residing abroad, our right of self-government should not 
 depend on uncertain usages, but on clearly expressed 
 guarantees. 
 
 How are we to know when an Imperial Act extends 
 by its own inherent force to a colony ? It was never con- 
 tended that English statutes were operative beyond the 
 bounds of the United Kingdom, unless, upon a reasonable 
 construction, there appeared the intention that they should 
 so operate (</). For a long time this question of construc- 
 tion was unaffected by any statutory enactment, but at the 
 present time the Imperial Act, 28 & 29 Vic. . 63. pro- 
 vides the canon of construction "An Act of parliament 
 or any provision thereof shall . . be said to extend to 
 any colony, when it is made applicable to such colony by 
 the express words or necessary intendment of any Act of 
 parliament/' 
 
 (/) Niboyet v. Niboyet, L. R. 4 P. D. 20; and see Reg. v. Keyn,. 
 L. R. 2 Ex. D. 152, 160, 207 ; Reg. v. Anderson, L. R. 1 C. C. R. at p. 167. 
 
 (</) 1 Blackstone, 107, et seq. ; Santos v. illidge, 8 C. B. N. S. 869, 887 ;. 
 Routledge v. Low, L. R. 3, E. & I. App. 113; Penley v. Beacon Assce. 
 Co., 10 Grant 428 ; Sussex Peerage Case, 11 Cl. & F. 146. See further 
 on this point, post, Chap. IX. 

 
 58 THE CANADIAN CONSTITUTION*. 
 
 A very different question this, from the question, how 
 far English statutory law, of no expressed colonial applica- 
 tion, has been, by Imperial grant or colonial adoption, 
 embodied in the legal system of a colony. We are now 
 dealing with Acts of the Imperial parliament, which, when 
 passed, were, by "express words or necessary iiitendment," 
 made applicable to our colony. The former question will 
 be found treated in subsequent pages; but it may now be 
 mentioned that, as a general rule, it is limited to a considera- 
 tion of the English statutory law as it existed at the time of 
 the introduction of English law into the colony. Imperial 
 enactments of a general character, passed subsequently 
 to such introduction, are not operative within the colony 
 (k). But it follows from what has already been laid down, 
 that there can be no time limit with regard to the class of 
 Imperial enactments now under discussion. Of course, in 
 the case of statutes passed prior to the acquisition oi' a 
 colony, there must be the " express words or necessary 
 inteiidment " requisite to make such enactment applical >le 
 to colonies to be thereafter acquired : but it is simply a 
 <|Uestion of construction an enquiry as to the intention of 
 the Imperial parliament. 
 
 It also necessarily follows from what we have said, that 
 any colonial enactment inconsistent with an Imperial en- 
 actment on the same subject which is the earlier and 
 which the later, makes no difference is inoperative: and 
 s> far did the English authorities carry this doctrine of 
 " repugnancy ," that colonial enactments inconsistent with 
 the principles of the English common law. as well as those 
 inconsistent with Imperial enactments (of the class we are 
 no\v discussing), were considered inoperative: aiid " repug- 
 nancy," in one portion even, was considered to invalidate 
 
 (li) Harrison v. Spencer, 15 O. R. <>'.I2 the " Thellusson Act." 39 A- 40 
 <5eo. til. c. 9 (Imp.) ; Rex v. Yaughan, 4 Burr, 2500 ; and cases cited in 
 last note; and see Jam 33 v. McLean, 3 Allen, 164 (Nova Scotia), in which 
 "2 Geo. II. c. 23 (Imp.), was held not to apply to a colony settled before 
 tlu- Act was passed.
 
 WHAT IMPERIAL ACTS AFFECT US '. 59 
 
 the whole of a colonial enactment. It cannot be said that 
 the authorities were clear to the extent mentioned, but _ 
 there was a respectable opinion tending in that direction (i). 
 The Act to which we have already referred (commonly 
 know.n as "The Colonial Laws Validity Act, 1865,") was 
 passed to clear away these uncertainties. It recites that 
 doubt had been entertained respecting the validity of divers 
 laws enacted, or purporting to be enacted, b}- colonial legis- 
 latures, and respecting the powers of such legislatures, and 
 after laying down the canon of construction already quoted 
 it enacts : 
 
 "II. Any colonial law, which is or shall be repugnant to the 
 provisions of any Act of parliament extending to the colony to 
 which such law may relate, or repugnant to any order Or regula- 
 tion made under authority of such Act of parliament, or having 
 in the colony the force or effect of such Act, shall be read, sub- 
 ject to such Act, order, or regulation, and shall, to t lie extent of 
 
 such repugnancy, but not otherwise, be and remain absolutely, 
 void an J inoperative! 
 
 'III. No colonial law shall be, or be deemed to have been- 
 void or inoperative on the ground of repugnancy to the law of 
 Kmil/ni I, unless the same shall be repugnant to the provisions of 
 some such Act of parliament, order, or regulation, as afore- 
 said " (_/). 
 
 Commenting on this Act, Willes, J. (in delivering the 
 unanimous judgment of the seven judges of the Exchequer 
 Chamber, in Phillips v. Eyre, involving a consideration of 
 a certain " Act of Indemnity " passed by the legislature of 
 
 Jamaica), says (/,): 
 
 "It was further argued that the Act in question was contrary 
 to the principles of English law (/), and, therefore, void. This 
 
 (il Bowman v. Middleton, 1 Bay, 252. This limitation has even been 
 suggested as applying to Imperial legislation 12 Rep. 76 ; see Dicey, 
 Law of the Const.. 59, note 1. 
 
 (j) 28 & 29 Vic. c. 63 (Imp.). 
 
 I/,-) L. R. 6 Q. B. at p. 20. 
 
 (/) Because ex post facto legislation. See In re Goodhue, 19 Grant, 
 366 ; and i)o*t. Chap. IX.
 
 60 THE CANADIAN CONSTITUTION. 
 
 is a vague expression, and must mean, either contrary to some 
 positive law of England, or to some principle of natural justice, 
 the violation of which would induce the Court to decline giving 
 effect even to the law of a foreign sovereign state. In the 
 former point of view, it is clear that the repugnancy to English 
 law which avoids a colonial Act means repugnancy to an Im- 
 perial statute, or order made by authority of such statute, 
 applicable to the colony by express words or necessary intend- 
 ment ; and that, so far as such repugnancy extends, and no 
 further, the colonial Act is void. ... To what Act, order, 
 or regulation, then, is the Jamaica Act of Indemnity and oblivion 
 repugnant ? (wi) ... It was further objected that the 
 colonial law was contrary to natural justice, as being retrospec- 
 tive in its character, and taking away a right of action once 
 vested, and that for this reason, like a foreign law against 
 natural justice, it could have no extra-territorial force." 
 
 This objection, too, was overruled : but, as we shall have 
 to touch upon this particular class of objection to colonial 
 legislation at a later stage, we omit further comment here. 
 
 As we have already intimated, it has been seriously 
 contended in the courts of this country that, under what is 
 known as the Constitutional Act, 1791 (n), the Imperial 
 parliament had so far, at least, as concerns Imperial statutes 
 of a date prior to its passage given to the legislatures of 
 Upper and Lower Canada power to annul, by direct repeal 
 or inconsistent enactment. Imperial legislation of express 
 colonial application. 
 
 In 1836, in the case of Gordon v. Fuller (o), it was 
 decided that the first section of the Imperial Act, 5 Geo II., 
 c. 7 (to the fourth section of which we trace our ri. fa, 
 
 (m) See further, as to what constitutes "repugnancy," Reg. v. Sher- 
 man, 17 U. C. C. P. 1(>7. Reg. v. Slavin, ib. 205, seems to lay down bad 
 law (pp. 210-11), that, because a Canadian Act is later than an Imperial 
 Act, "the question as to any contiict between them does not arise." 
 Reg. v. Sherman seems to foreshadow this error. 
 
 (H) 31 Geo. III. c. 31 (Imp.). (o) 5 U. C. Q. B. (O. S.) 174.
 
 WHAT IMPERIAL ACTS AFFECT Us ''. 61 
 
 lands) (_>), respecting affidavits to be made in England for 
 proof of debts sued for in this colony, was not repealed by 
 the provincial Act, (32 Geo. III. c. 1, s. 5), but from the 
 judgment of the court, Mr. Justice afterward Chief Justice 
 Macaulay dissented; and, in order to appreciate the force 
 of the opinion delivered by Chief Justice Robinson in support 
 of the judgment of the court, we quote first from that dissent- 
 ing opinion ; and, as these earlier opinions contain a large 
 amount of clear and instructive historical statement in 
 reference to the early constitutional history of this country, 
 we venture to give them somewhat at length. Mr. Justice 
 Macaulay says : 
 
 "In 1791, the 31 Geo. III. c. 31, in contemplation of a 
 division of the provinces, provided the present constitution, and 
 forms the source from which the powers and authorities of our 
 provincial statutes flow. It authorized the formation of local 
 legislatures, and enacted that his Majesty should have power, 
 with the advice and consent of the legislative council and assem- 
 bly in each province, to make laws for the peace, welfare, and 
 good government thereof, not being repugnant to that Act. All 
 which laws are thereby declared to be, by virtue of and under 
 the authority of that Act, valid and binding to all intents and 
 purposes whatever, within the provinces respectively .... 
 The two principle questions are 1st. Whether the provincial 
 legislature possessed the power to subject suitors in actions for 
 money demands, resident in England, to the lex loci in this 
 respect to the same rules of evidence prescribed for the inhabi- 
 tants of the colony and all others ; in other words, to remove 
 the operation of 5 Geo. II. c. 7, from this province as a rule 
 in such cases, or to introduce incompatible regulations on the 
 same subject. And if so 2ndly, whether by implication (for 
 it is not done in express terms) such effect has been accomplished. 
 The statute o Geo. II. does not include all suitors and witnesses 
 living in England, but extends only to cases of debt or account, and 
 
 (p) See the very interesting case, Gardiner v. Gardiner, 2 U. C. Q. B. 
 (O. S.) 554, in which the right of a creditor to sue out a fi. fa. lands, is 
 exhaustively discussed.
 
 62 ' THE CANADIAN CONSTITUTION. 
 
 perhaps contemplated only those contracted in England. First, 
 as to the power : I consider it imparted by 31 Geo. III. c. 
 31, which is very comprehensive, and almost unlimited in its 
 terms : . . . . Subject to the exceptions therein expressed, I do 
 not see that the powers of the colonial legislatures are otherwise 
 abridged, so far at least as respects the laws in force at the time 
 it was first organized, however liable to control by subsequent 
 Imperial statutes, naming the province, or including it in a more 
 general allusion to the North American possessions .... The 
 King has almost unqualified power to make laws, binding upon 
 and within the province, with the advice and consent of the 
 legislative council and assembly ; not as a mere prerogative 
 right, or under a system of government established by commis- 
 sion as a royal government emanating from the grace and pre- 
 rogative powers of the Crown, but by virtue of a British statute, 
 which says that all laws so made" (if not repugnant thereto) shall, 
 by virtue of that Act, be valid and binding ; and in order not to 
 abridge the superintending control of his Majesty's government, 
 a double negative is granted to his Majesty, who may annul and 
 disallow Acts, although assented too in his name by the'governor 
 or lieutenant-governor representing him in his provincial parlia- 
 ment here. With these and other such qualifications and safe- 
 guards as the Imperial parliament deemed expedient, free scope 
 is given to the action of the colonial legislature in all other 
 respects ; so much so, that I cannot but reijard the provincial statute, 
 when <hilij jHtsseil, of eijnal force within the province with British 
 statutes, when not repugnanl to 1 "81 Geo. 111. c. "51. 'lH"other 
 words, I feel constrained to read the fifth section of our first Act 
 (q) as if it had been incorporated in 31 Geo. III. c. 31, and 
 formed one of its provisions, and conceive it competent to the 
 provincial parliament (as a mere question of power) to exclude 
 the operation of 5 Geo. II. c. 7, in any or in all respects by an 
 Act duly assented to by or on behalf of his Majesty ; and, if so, 
 to produce the same effect by implication arising from the intro- 
 duction of incompatible or other contradictory regulations. . .. 
 . The second inquiry whether this clause of it has been 
 excluded. No provincial Act mentions it by name, and, conse- 
 
 (<l) 32 Geo. III. c. 1 (U. C.), introducing English law into Upper 
 Canada.
 
 WHAT IMPERIAL ACTS AFFECT US \ 63 
 
 quently, if effected, it must be by implication. I have already 
 quoted the clause of our first Act, which, in furtherance of the 
 previous clauses adopting the law of England, prescribes the 
 rule of evidence and the forms thereof. . . . Regarding the 
 whole scope and spirit of our provincial Act, from the first to 
 the last, so far as respects the general adoption of the law of 
 England, it appears to me that 5 Geo. II. c. 7, s. 1, was 
 not repealed, but excluded from operation here by implication, 
 especially by the 5th section introducing inconsistent provisions." 
 
 And he proceeds to intimate his opinion that the Imperial 
 statute, 6 Geo. IV. c. 114, which declares void all laws, 
 by-laws, usages, or customs, repugnant to that or other 
 British Acts, referred only to 'laws, usages, etc., founded 
 upon the old systems of colonial government by charter 
 or otherwise/ and not to laws made by colonial assemblies 
 constituted under an Imperial statute. 
 
 Chief Justice Robinson, in delivering the judgment of 
 the court, says : 
 
 " As a general principle bearing on our introduction of the 
 English law, civil and military, I think . . . that this 
 general adoption (?) of them was not intended to supersede any 
 particular provision that had before been made in respect to a 
 certain matter, by a competent legislative authority, applying 
 itself particularly to the colony. It was an Act to give a general 
 rule in cases not specially provided for. On the other hand, I 
 think this provision of 5 Geo. II. c. 7, does not come within 
 (, the 46th section of 31 Geo. III. c. 81 ; and that if it depended 
 / on the question whether that clause (and that clause only) 
 i disabled our legislature from repealing it, it would not now be 
 in force. To receive such an affidavit in proof of debt at the 
 trial does certainly militate against the rules of evidence as 
 established in England, and, therefore, after the passing of our 
 provincial statute, 82 Geo. III. cap. 1, it cannot be admitted, 
 unless, 1st, it can be held that the repeal of the British statute, 
 5 Geo. II. c. 7, is not within the intention of the statute 32 
 ^Geo. III. cap. 1 ; or, 2nd, wan nut within the power of the colonial 
 legislature." 
 
 (r) i.e. by 32 Geo. III. c. 1, (U. C.)
 
 iU THE CANADIAN CONSTITUTION. 
 
 Then, upon a consideration of the provincial Act, 32 
 Oeo. III. c. 1, he concludes that there is no evidence of 
 intent to repeal ; and proceeds : 
 
 " Secondly. If the legislature intended the repeal, had they 
 the power ? 
 
 "1st. The direct effect of such repeal would be to take from 
 persons resident in Great Britain, conveniences secured by an 
 express British Act of parliament to them, and them only; and 
 I cannot conceive that 31 Geo. III. c. 31, gives to this legis- 
 lature such a power. . . . Nothing can be more repugnant 
 to any Act than an attempted repeal of it, and the consequence 
 of being illegal and void must follow, unless the effect of 31 Geo. 
 III. c. 31, is to make our legislature independent of the pro- 
 visions of the imperial statutes respecting 'repugnancy.' It 
 may be contended that it has that effect 1st; because parliament 
 delegated the power to make laws for the colony to our legislature, 
 having the concurrence of the King ; and that all that is clone 
 by ibis delegated authority (within their scope) is to be regarded 
 as if done by the British parliament on the principle of execution 
 of powers. 2nd. By specifying . . . certain exceptions to 
 this power, which do not embrace such a subject as that in 
 question, we must take it there are to be no other exceptions, 
 and that all laws passed in this province not coming within the 
 exceptions . . . and not repugnant to the constitutional 
 Act which creates the power, must be within the competence of 
 our colonial legislature. But to this, I answer 1st. That the 
 power is to make laws to operate directly only on the peace, 
 welfare, and good government of this province (though indirectly 
 they may affect which is inevitable persons resident out of 
 it), and that it does not reasonably extend to the repeal of an 
 Act of the British parliament expressly passed to afford facilities 
 to British subjects resident in England. . . . 3rd. That 
 the British parliament did not mean to give to this colonial 
 legislature, authority to repeal Acts of parliament prior to 31 
 Geo. III. expressly binding in the colony (and especially such 
 as did not concern the colony merely), is evidenced in the 
 
 strongest manner by Geo. IV. c. 114, s. 49 
 
 for it provides expressly that all laws in force or practice in any
 
 WHAT IMPERIAL ACTS AFFECT US ? ' 65 
 
 of the British possessions of America, which are in any wise 
 repugnant to any Act of parliament made, or ^obe made, in the 
 United Kingdom, so far as such Act shall relateto and naerTtiwn 
 the said possessions, are, and shall be null and void to all intents 
 and purposes whatever (s). 
 
 " It is said that 32 Geo. III. c. 1, repeals the British statute 
 5 Geo. II. c. 7, in this particular. If it does, it must be re- 
 pugnant to it. If it be repugnant to it, then it is an Act in 
 force, or attempted to be put in force, in this British possession, 
 repugnant to an Act of parliament made in the United Kingdom 
 relating to and mentioning the British possessions in America ; 
 and, therefore, as to such Act, so far as it does relate to and 
 mention such possessions, it is null and void under the Imperial 
 statute 6 Geo. IV. c. 114. ... We have ascertained that 
 in Lower Canada the Courts have uniformly held 5 Geo. II. 
 c. 7, to be in force as respects the provisions now in question, 
 notwithstanding that the ancient Canadian law, as the general 
 rule of decision, is given by the British statute 14 Geo. III. 
 c. 83 (t), which would make the argument stronger in favor 
 of the supposed virtual repeal " (;/). 
 
 Another Canadian case, illustrative of the want of full 
 appreciation of our subjection to the supremacy of the 
 Imperial parliament, arose in 1864, the case, of Reg. v.- 
 Schram & Anderson (v). These men were charged, under 
 the Foreign Enlistment Act, 59 Geo. III. c. 69 (Imp.), with 
 having tried to procure inhabitants of this province to 
 enlist in the American arm}'-. Strange as it may seem, it 
 was seriously argued, that in spite of express words 
 making the Act applicable to all parts of the Empire, it 
 was not in force here, because we had, at the time it was 
 passed, a local legislature. And, although the judgment of 
 the Court was that the Imperial Act in question was in 
 force here, the reasons advanced, indicate no clear distinc- 
 
 (*) See now 28 & 29 Vic. c. 63, supra, (t) The Quebec Act, 1774. 
 
 (H) See also Smith v. McGowan, 11 U. C. Q. B. 399, and Gabriel v. 
 Derbyshire, 1 U. C. C. P 422, as showing the judicial dislike of this sec- . 
 tion of 5 Geo. II. c. 7, and its extension by an Act of Wm. IV. 
 
 (v) 14 U. C. C. P. 318. 
 CAN*. Cox. 5
 
 66 THE CANADIAN CONSTITUTION. 
 
 tion between the legal limits (or want of legal limits) to 
 the legislative power of the Imperial parliament, and the 
 " conventional " limits proper to be observed in the exercise 
 of that power. We quote from the judgment of Chief 
 Justice Richards : 
 
 " The only ground on which we can hold that the statute, 
 59 Geo. III. is not in force in this country is because we have, 
 and then had, a local parliament, and that enactments of this 
 kind ought to be made by the authority of that parliament, and 
 if not so made, they ought to be held not to be in force here. 
 
 " By the Constitutional Act, 1791 (31 Geo. III. c. 81), a 
 separate legislature was established in each section of the prov- 
 ince, to make laws for the peace, welfare, and good government 
 thereof, such laws not being repugnant to that Act. By the 
 Union Act (3 & 4 Vic. cap. 35), these provinces were again 
 united, and power given to the local legislature to pass laws for 
 the peace, welfare, and good government of the province of 
 Canada, such laws not being repugnant to that Act, or to such 
 parts of the Constitutional Act, 1791, as were not repealed, or to 
 any Act of the Imperial parliament made, or to be made, and 
 not thereby repealed, which did, or should, by express enactment, 
 or by necessary intendment, extend to the provinces of Upper 
 or Lower Canada, or either of them. The very words of the 
 statute seem to imply that the power to legislate on some 
 matters, was, and is reserved to the Imperial parliament, though 
 this province may be affected by such legislation. 
 
 " As long as it is admitted ihat the Home government, by 
 whom the supreme power of the Empire is exercised, is the 
 proper channel through which all our relations and intercourse 
 with foreign governments are to be carried on, the power to pass 
 laws to bind the whole nation, so far as regards those relations 
 and, as necessarily arising out of them, the peace of the Empire, 
 must rest with the Imperial parliament. 
 
 " Independently of the doctrine that our local legislature 
 can only exercise such powers as are specially conferred upon it 
 under the statutes passed by the Imperial parliament, there are 
 other points of view in which the question may be considered. 
 Though possessing a domestic legislature, we form part of a
 
 WHAT IMPERIAL ACTS AFFECT US ? 67 
 
 vast Empire, having other colonies exercising similar legislative 
 powers to our own. If any one colony, by passing laws, or re- 
 fusing to pass laws, produced a state of things which created 
 difficulty with a foreign state, the whole nation might be in- 
 volved in a calamitous war from the imprudence or recklessness 
 of a jrery unimportant colony. Considered in this light, it 
 appears to me" rhat the statute^which we are discussing relates 
 to the conduct of citizens of the Empire towards foreign states 
 and people, and is on a subject which must be disposed of and 
 legislated upon by the Imperial parliament, as representing the 
 supreme legislative power of the nation, and as to which it is 
 necessary that all the subjects of the Crown should alike be 
 bound. The very preamble of the Act states that the proceed- 
 ings which the statute prohibits may be prejudicial to, and 
 endanger the peace and welfare of the Kingdom." 
 
 And again, in Keg. v. Taylor (w), Chief Justice Draper, 
 in considering the term " exclusive," in the 91st section 
 of the B. N. A. Act, construed it as " intended as a more 
 definite or extended renunciation, on the part of the parlia- 
 ment of Great Britain, of its powers over the internal affairs 
 of the new Dominion than was contained in the Imperial 
 statutes, 18 Geo. III. c. 12 (x), and 28 & 29 Vic. c. 63 (y)," 
 overlooking apparently the fact that such a renunciation 
 would be of no legal effect whatever in restraining future 
 parliaments from legislative interference in the internal 
 affairs of Canada, if so ill-advised as to take such an "uncon- 
 ventional " step. This interpretation of that term " exclu- 
 sive" has, in subsequent cases, and by other judges, been 
 very emphatically dissented from, and the general principle 
 of the legislative supremacy of the Imperial parliament 
 clearly laid down (0). 
 
 (if) 36 U. C. Q. B. at p. 220. 
 
 (x) The celebrated Renunciation Act; see ante, p. 36. As to the 
 legal effect of this renunciation, see charge of Blackburn, J., in Keg. v. 
 Eyre, reported by Finlayson. 
 
 (y) The Colonial Laws Validity Act, 1865. 
 
 (z) Smiles v. Belford, 1 O. A. R. 436 ; Reg. v. Coll. of Phys. 44 U. C. 
 Q. B. 564.
 
 70 THE CANADIAN CONSTITUTION. 
 
 that his views are very clearly expressed, and we venture 
 therefore to quote somewhat at length from his opinion : / 
 
 My opinion is, that the first Bubble Act has not been in 
 force in this province since the repeal of that statute by the 
 Imperial parliament in their Act of 6 Geo. IV. c. 91. While 
 it was in force, I think it derived its obligations in the colonies, 
 first and principally, from the very words of the statute itself. 
 It was passed in order that its provisions might extend, not merely 
 to London and other parts of the Kingdom, but also to Ireland 
 and ' other his Majesty's dominions.' It was in force in the 
 colonies by the same act of legislative authority, and its obliga- 
 tion rested on the same foundation in the colonies as in Eng- 
 land When, therefore, the legislature determined 
 
 it to be expedient that the first Bubble Act, or rather those 
 clauses of it which are now in question, should be repealed, and 
 that the several undertakings, attempts, etc., therein prohibited 
 should be left to be dealt with according to the common law, 
 they did, in my opinion, absolve the application of that statute as 
 plainly and as fully in the colonies as in other parts of the 
 Empire where it had been in force. Of course, that must be 
 the effect, unless some statute passed in England or in this 
 colony since the first Bubble Act prevents it. The second 
 Bubble Act, 14 Geo. II. c. 37, cannot, as I think, have that 
 effect. It was never anything but a mere supplement to the 
 first Bubble Act. Omne acceswriiun scquitur suuin principtde. 
 The latter statute has nothing to stand upon if the former has 
 been withdrawn. Then we must next consider the effect of 
 " The Quebec Act, 1774," introducing the criminal law of 
 England into the province of Quebec, and of our provincial 
 statute, 40 Geo. III. c. 1, declaring that the criminal law of 
 England, as it stood on 17th September, 1792, shall be the 
 criminal law of this province. Neither of those enactments, in 
 my opinion, were intended to affect, or can properly be construed 
 to affect, the question whether the Bubble Acts are now in force 
 in this province. 
 
 " By the Quebec Act, 1774, the British parliament clearly 
 designed to give to Canada the criminal law of England, as to 
 those objects and in those matters for which no special provision
 
 WHAT IMPERIAL ACTS AFFECT US ? 71 
 
 had before been made by parliament. That statute had no 
 intended reference to Acts of parliament which, from their very 
 terms, already were as much in force in the colonies as in 
 England, and which consequently required no introduction at 
 that period. It left those special laws as they stood. Upon any 
 other principle, if there had been particular penal statutes then 
 in force applying solely and exclusively to the colonies, and form- 
 ing no part of the law of England, we must have held such 
 statutes to be virtually repealed by the Quebec Act, 1774, 
 giving us the criminal law of England, though clearly such an 
 effect never could have been intended. The Bubble Acts were 
 not peculiarly the law of England they did not come to us as 
 introduced by The Quebec Act, 1774; they were part of the 
 criminal law of England, and of the other colonies before, and 
 they continued to be so upon the same ground, and no other, 
 after the Quebec Act was passed, as before. 
 
 "Then, as to our statute 40 Geo. III. c. 1, the point is 
 still more clear. Our colonial legislature, when they passed that 
 Act, must be taken to have been using their discretion and 
 choice in introducing the criminal law of England, in the whole or 
 in part, with or without exception, as they judged best. Now, 
 they had, at that time, no discretion to exercise in regard to these 
 Bubble Acts, because they already formed part of our penal law, 
 being expressly made to extend to this and other colonies by a 
 power beyond that of the provincial legislature. If they had 
 desired to except them they could not have done it, and, there- 
 fore, it cannot follow that because they did not except them, they 
 adopted them ; they were not legislating with any view to laws 
 already in force under a power superior to their own. If they had 
 excluded them, the exclusion would have been illegal ; if they 
 had introduced them, their declaration to that effect would have 
 been idle and nugatory. I understand the provincial legislature 
 to have left them as they found them, standing upon their own 
 original foundation, which they had no power to strengthen or 
 weaken; and when the parliament of the Mother Country 
 repealed the original and principal Bubble Act, declaring that it 
 was expedient to laave such practices and schemes to be dealt 
 with according to the common law, they did, in my opinion, undo 
 all that they had done by that statute, and they neither meant
 
 72 THE CANADIAN CONSTITUTION. 
 
 to leave it in force, nor did leave it in force, in any one part of 
 the British dominions more than in any other." 
 
 The principle we are now discussing, namely, the opera- 
 tive force in a colony of an Imperial Act repealing a 
 previous Imperial Act of express application to such colony ; 
 was recognized in a comparatively recent case which came 
 before the Judicial Committee of the Privy Council, Reg. 
 v. Mount & Morris (/). These men were tried before the 
 Supreme Criminal Court of the colony of Victoria, upon 
 the charge of murder, alleged to have been committed on 
 board a British ship on the high seas, and were convicted 
 of manslaughter. The jurisdiction to try persons charged 
 with offences committed on the sea, within the jurisdiction 
 of the admiralty, was for the first time conferred upon 
 colonial courts, in 1849, by the Imperial Act 12 & 13 Vic. 
 c. 96, the second section of which provided that convicted 
 persons should be subject to the same punishment "as by 
 any law now in force " persons convicted of the same 
 offence would be liable to, had the offence been committed 
 and the trial had in England. 
 
 At the time this Act was passed, the punishment for 
 manslaughter in England was transportation for life. 
 Afterwards, by an Imperial Act, punishment by transpor- 
 tation was abolished, penal servitude being substituted 
 therefor. There was nothing in this Act expressly extend- 
 ing it to the colonies; but, notwithstanding this, the Com- 
 mittee held that the previous Act, 12 ^ 13 Vic. c. !><;. 
 which had conferred on colonial criminal courts the juris- 
 diction to try such offences as we have mentioned, must be 
 held to be amended (in respect to the sentence to be 
 imposed) by the Act which ab >lished transportation. 
 Their view is thus expressed : 
 
 "When the Imperial legislature substituted penal servitude 
 for transportation, it is reasonable to suppose that the alteration 
 
 (/) L. R. GP. c.2-
 
 WHAT IMPERIAL ACTS AFFECT US ? 73 
 
 was intended to embrace sentences for offences tried in tbe 
 colonies under the special jurisdiction conferred by 12 & 13 Vic., 
 since tbere is no trace of any intention on tbe part of tbe legis- 
 lature to change the policy of that Act, which orders these sen- 
 tences to be passed according to the law of England. 
 
 " This construction creates no conflict between Imperial and 
 colonial authority, and in no way affects the rights and privileges 
 of the colonial legislatures. It simply affirms that the Imperial 
 statute, which gave the courts of the colonies quoad offences 
 committed upon the seas beyond their territorial limits, a juris- 
 diction which their own legislatures could not confer, was altered 
 by a subsequent Imperial Act." 
 
 This case, as will be seen, is a pretty strong one, as the 
 1 alteration of the previous Act (which alteration was held 
 I to have effect in the colonies) was an alteration by implica- 
 \tion, and not by direct amendment or repeal. 
 
 It is beyond the scope of this work to enumerate even 
 briefly the various Imperial Acts (g) which to-day lay 
 down, on various matters, the law for our guidance and 
 submission. The most that can be done is to indicate, with 
 no pretence of exhaustive treatment, some of the subjects 
 
 (g) For other cases involving an enquiry whether or not some par- 
 ticular Imperial Act extends to Canada, see: - 
 
 Routledge v. Low, L. R. 3 E. and I. App. 100 Copyright Act (5 & 6 
 Tie. c. 45). 
 
 In re Lyons, 6 U. C. Q. B. (O. S.) 627 An Act respecting Declarations 
 in lieu of Oaths. 
 
 Hodgins v. McNeil, 9 Grant, 305 Lord Lyndhurst's Marriage Act 
 (5 & 6 Wm. IV. c. 54). "The colonies are not mentioned in the Act, nor 
 included by any necessary or even strong intenlment." 
 
 Thompson v. Bennett, 22 U. C. C. P. 393 Orders in Lunacy (11 Geo. 
 IV. and 1 Wm. IV. c. 60). 
 
 lie Squier, 46 U. C. Q. B. 474 Removal of Colonial Officers, (22 Geo. 
 III. c. 75). 
 
 Georgian Bay Trans. Co. v. Fisher, 5 O. A. R. 383 Merchant 
 Shipping Acts. 
 
 Mowat v. McPhee, 5 S. C. R. 66. 
 
 Allen v. Hanson, 18 S. C. R. 667, at p. 631 English Joint Stock 
 Companies Acts.
 
 74 THE CANADIAN CONSTITUTION. 
 
 on which the Imperial parliament does legislate for us. We 
 have adverted, to some extent, to the general nature of such 
 subjects in a previous chapter, and have indicated that they 
 are subjects which are'deemed to be of common concern to 
 the whole Empire, but it will be advisable to defer any fur- 
 ther remarks upon this branch until we come to treat of 
 those sections of the B. N. A. Act which divide the field of 
 colonial self-government allotted to Canada between the 
 parliament of Canada on the one hand, and the Legislative 
 Assemblies of the various provinces, on the other (ft). 
 
 (h) The "Chronological Index," published with the English Law 
 Reports, affords a convenient method of tracing the fate of Imperial Acts. 
 See sub. tit. " Colonies " and the various cross-references.
 
 CHAPTER V. 
 
 THE SOURCES OF OUR LAW. 
 
 In the last chapter, we pointed out the necessity for a, 
 cart-fill distinction between Imperial Acts which are in 
 force in any particular colony because "made applicable 
 to such colony by the express words or necessary inteiid- 
 inent ' thereof () and Acts which (as coming within the 
 term English law, or the law of England) have been, by 
 Imperial grant or colonial adoption, made the law of the 
 colony. Aconstant guard must be maintained with refer- 
 ence to this distinction. In the last chapter, the extent to 
 which we are subject to the law enacted in and by the 
 former class of Imperial Acts was discussed. This chapter 
 will deal with those Imperial Acts, and those only, which 
 have no expressed reference to the colonies in general, or 
 to any colony in particular, and the enquiiy is to be To 
 what extent are such Acts to be held in force in Canada ? 
 
 In entering upon this enquiry, it becomes at once 
 apparent that there is a marked variety in the position of 
 the various provinces of which the Dominion of Canada is 
 composed ; and that the extent to which English statutory 
 law, of a general character, is in force in the different 
 provinces, is by no means the same. The reasons for this 
 variety are to be sought in the differences which mark their 
 
 (a) 23 \- 2:i Vic. c. 63, s. 1 (Imp.).
 
 76 
 
 THE CANADIAN CONSTITUTION. 
 
 V 
 
 early history as separate colonies of Great Britain differ- 
 ences as to the mode by which they attained that distinc- 
 tion differences in the methods employed by Imperial 
 authority, in determining what system of jurisprudence 
 should be given to such of them as had that question 
 settled for them by Imperial authority differences in the 
 extent to which English law was adopted by such of them 
 determined the question for themselves differences as 
 e point of time in reference to which the introduction 
 place. 
 
 A question of this kind," said Chief Justice Robinson, 
 5, " arising in any British colony, must depend upon 
 k er in which the law of England has become the 
 particular colony ; whether it has been merely 
 turned to be in force upon common law principles, as in 
 of new and uninhabited lands found and planted 
 itish subjects ; or whether it has been introduced 1 >v 
 nactment of the Mother Country, or of the 
 e d ne i n the. case of a conquered 
 country) iiy the mere act or regulation of the 
 King, in the exercise of his royal prerogative" (6). 
 
 It may be said that in Canada there are, among the 
 provinces, representatives of each of the classes of colonies 
 referred to by* the eminent Chief Justice whose woi 
 have quoted ; and an apology, therefore, is hardly ii 
 for making our inquiry, so to speak, by j>rnt-i ,tccs. 
 
 The reader should, perhaps, be warned that many 
 the English statutes, upon which discussions have taken 
 place and decisions been given to the effect that they must 
 l)e held to be in force here, are not. at 
 force in Canada, ami for the reason that 
 which they deal lias, since they were under judicial 
 scrutiny, received attention at the hands of our parlia- 
 ments. It cannot lv too carefully kept in mind that it is 
 only in the absence of Canadian or provincial legislation 
 
 in 
 
 (/;) See.po.5f, Chap. VI.
 
 THE SOURCES OF OUR LAW. 
 
 \\ 
 
 (as the case may be) on the subject, that any question can 
 arise as to the effect here of an Imperial enactment, passed 
 before the date in reference to which, English law is to be 
 taken as a fixed " body " of law, and as such introduced 
 into the different provinces. The cases are collected and 
 reviewed in order to enable the reader to fully grasp, if 
 possible, the principles on which the decision must rest, 
 which admits or denies any Imperial statute as operative 
 here, rather than as showing what particular Imperial 
 enactments are to-day in force in the different provinces of 
 Canada. 
 
 Seniores ^i-ioi'cs. NOVA SCOTIA, as the oldest of the 
 provinces, is entitled to the first consideration. We have 
 already referred to the claim made by the General Assembly 
 of that province in 1759, that Nova Scotia "did always of 
 right belong to the Crown of England, both by priority of 
 discovery and ancient possession " (c). By the Nova Scotia 
 courts, this claim woulcl appear to have been recognized ; to- 
 this extei^hit all events, that Nova Scotia has always been 
 treated as a colony by settlement as distingtrwned from a 
 jred by conquest or cession. Owing to the 
 reports of the early decisions in that province, 
 Sfble, by direct reference to decided cases, to show 
 hj^^iestion how far English law was 
 seated in the earlier years 
 hoYve^ej^. one decision in that 
 sic upon this ques- 
 tions have praeticai^beeu hut tlie 
 'mmciate'l in t0t ci The 
 refer is that o 
 ise ' if ! "ni; ', 
 rim then 
 
 Colony 
 ftsence 
 
 are, 
 
 eenied 
 
 f its ] 
 
 province win 
 ti' MI. an! sul i.- 
 appiication i a 
 U'cisn >ii t< * w 
 V iva Stv 'tia. 
 
 tlie Supreme Court of 
 
 the C; 
 
 ' Hallil'iirt* >n. v 
 time thi^ i lecisiou \\ 
 '1 a seat ..on tlie be 
 
 i >i' the I
 
 78 THE CANADIAN CONSTITUTION. 
 
 tion contained in the opinions of the Chief Justice aiul Mr. 
 Justice Hill, and because the case is a fitting introduction 
 to our whole subject, we venture to quote somewhat fully 
 from those opinions. 
 
 The action was an action on a mortgage, in which the 
 Attorney-General for the province intervened, claiming a 
 charge in priority to that of the plaintiff, by reason of 
 certain debts which were due to the Crown by the mort- 
 gagor. The claim was based upon Imperial statutes, 33 
 Hen. VIII. c. 39, and 13 Eliz. c. 4, the general tenor of 
 which, is sufficiently indicated in the judgments : 
 
 HALLIBURTON, C.J. 
 
 " To what extent the laws of the 
 
 mother country prevail in the colonies settled by her descend- 
 ants, is a question which has occasioned much discussion without 
 producing any rule approaching to precision for our guidance. 
 
 " The language of elementary writers upon this subject is 
 couched in such general terms and qualified by such numerous 
 exceptions, that they perplex rather than enlighten us. 
 
 " Our excellent Blackstone, for instance, says, in his commen- 
 taries (1st vol. 101), ' it hath been held that if an uninhabited 
 country be discovered and planted by English subjects, all the 
 English laws then in being (which are the birth-right of every 
 subject) are immediately there in force.' Had the learned 
 commentator stopped here, he would indeed have laid down a 
 rule so broad as to embrace every case and remove all difficulty ; 
 no distinction is alluded to between the common and statute 
 law, but all the laws then in force in England are to be at once 
 transplanted into the infant colony. His own good sense, how- 
 ever, at once pointed out to him the absurdity of such a position, 
 and he immediately adds : ' But this must be understood with 
 very many and very great restrictions ; they carry with them 
 -only so much of the English law as is applicable to their own 
 situation and the condition of an infant colony ' ; and among 
 his exceptions, he particularly mentions the laws of police and 
 revenue. 
 
 " Among the colonists themselves there has generally existed 
 a strong disposition to draw a distinction between the common
 
 THE SOURCES OF OUR LAW. 79 
 
 and the statute law. As a code, they have been disposed to 
 adopt the whole of the former, with the exception of such parts 
 only as were obviously inconsistent with their new situations, 
 whilst, far from being inclined to adopt the whole body of the 
 statute law, they thought that such parts of them only were 
 in force among them as were obviously applicable to, and neces- 
 sary for, them. 
 
 "As it respects the common law, any exclusion formed the 
 exception ; whereas, in the statute law, the reception formed the 
 exception. 
 
 " Now, although this view of the subject leads us to nothing 
 very precise, yet, if we adopt it, and I think it wise and safe to 
 do so, we must hold it to be quite clear that an English statute 
 is applicable and necessary for us before we decide that it is in 
 force here. 
 
 "The language of C.J. Chipman, in the case of the King v. 
 McLaughlin (e), might induce us to suppose that he did not 
 recognize this distinction, for he says: 'As to the distinction 
 attempted to be drawn by the counsel for the claimants, between 
 the common law and the statute law extending to the colonies, 
 other statutes than those mentioned by the Solicitor- General are 
 daily acted upon'; but when I turn to the expression of this 
 able judge at the commencement of his opinion, I think he 
 sanctions the distinction. He there says : ' Each colony, at its 
 settlement, takes with it the common law and all the statute law 
 applicable to its colonial condition.' Indeed, the distinction 
 exists in the very nature of things, and is derived from the 
 origin of the two codes. The common law has its foundation ir 
 those general and immutable principles of justice which regu- 
 late the intercourse of men with men, wherever they may 
 reside. The statute law emanates from the wisdom of the 
 legislature of the day, varies with varying circumstances, and 
 consists of enactments which may be beneficial at one time and 
 
 (e) There does not seem to be any printed report of this case, beyond 
 a note of it in Stevens' Dig. (N. B.). It involved the same Imperial Act 
 as was in question in Uniacke v. Dickson ; but, in New Brunswick, the 
 Act was held to be in force. As will be noticed hereafter, the courts of 
 that province have been more liberal in their recognition of the binding 
 force in the province of British Acts ; see post. 
 
 \ 
 
 A
 
 SO THE CAXADIAX CONSTITUTION. 
 
 injurious at another which might advance the interests of one 
 community, and prove ruinous to those who were differently 
 situated. 
 
 "My venerable predecessor, C.J. Blowers, who presided so 
 ably in the Supreme Court for many years, inclined to the 
 opinion, that those statutes only which were in ameliora- 
 tion of the common law, and increased the liberty of the subject 
 were in force here ; and though (as we have no reports of the 
 decisions) my memory does not enable me to mention any par- 
 ticular case which he decided upon that principle, I well recollect 
 that he was invariably influenced by it in all cases to which it 
 was applicable. 
 
 " It has been contended that the 33rd of Henry VIII. is in 
 amendment of the common law, and I observe that Mr. Justice 
 Botsford, in the case I have alluded to (Rex. v. McLaughlin) 
 gave a reluctant assent to the adoption of it in New Brunswick 
 upon that ground. The 74th section, to which he particularly 
 alluded, may, perhaps, be deemed to have that tendency,, 
 although conflicting decisions have been given in cases arising 
 upon it, in Westminster Hall ; but surely, taking the statute 
 as a whole, it never can be considered in that light. But 
 without excluding either statute upon that ground alone, let us 
 inquire upon what ground they are now, for the first time, to be 
 adopted, when we have had a local legislature for nearly a cen- 
 tury, fully empowered to make such laws as the interests of the 
 colony has required 
 
 " In continuing his observations upon the extension of the 
 laws of England to the colonies of the Empire, Blackstone says,. 
 in the same page from which I have already quoted, ' What 
 shall be admitted and what rejected, at what times and under 
 what restrictions, must, in case of dispute, be decided, in the first 
 instance, by their own provincial judicature, subject to the 
 revision and control of the King in Council.' It is not con- 
 tended that either of these statutes has ever received this sanc- 
 tion in Nova Scotia. The attempt to enforce them here is now,, 
 for the first time, made ; and it appears to me to be incumbent 
 upon those who preside in the respective courts of judicature in 
 this province gravely to consider whether the adoption of their
 
 THE SOURCES OF OUR LAW. 81 
 
 provisions, if it be judicious to adopt them, is net now rather 
 the province of the legislature than the courts. 
 
 " In the early settlement of a colony, when the local legisla- 
 ture has just been called into existence, and has its attention 
 engrossed by the immediate wants of the infant community in 
 their new situation, the courts of judicature would naturally 
 look for guidance, in deciding upon the claims of litigants, to 
 the general laws of the mother country, and would exercise 
 greater latitude in the adoption of them than they would be 
 entitled to do as their local legislature, in the gradual develop- 
 ment of its powers, assumed its proper position. Every year 
 should render the courts more cautious in the adoption of laws that 
 hud never been preciously introduced into the colony, for prudent 
 judges would remember that it is the province of the courts to 
 declare what is the law, and of the legislature to decide what it 
 shall be. 
 
 " Impressed with this view of the distinct functions of the 
 legislature and the courts at this period of our colonial exist- 
 ence, it does appear to me that if additional fiscal regulations- 
 are necessary to assure the due collection and payment of our 
 provincial revenue, it would be more proper to apply to the 
 legislature to adopt such as they may deem prudent, than to- 
 require from the courts the adoption of English statutes which" 
 were passed centuries ago, under sovereigns who were sufficiently 
 careful of the preservation of their power, and by parliaments 
 who, to say the least, paid as much attention to the prerogatives 
 of the Crown as they did to the privileges of the people 
 statutes, the rigours of which have been diminished in the 
 mother country during the reign of our present gracious Queen, 
 (5 Victoria, c. 11). 
 
 " Should this course be pursued, our legislature can intro- 
 duce similar ameliorations of these statutes, if they think it right 
 to adopt them. The courts have no such power ; but, if they 
 adopt them at all, must adopt them in all their rigour. 
 
 " The 33rd of Henry VIII., if enforced here as it now stands 
 in the English statute book, would, to a great extent, be destruc- 
 tive of that security to purchasers of real estate which our 
 registry Acts were passed to ensure. 
 
 CAN. Cox. 6
 
 82 THE CANADIAN* CONSTITUTION. 
 
 " The 18th of Elizabeth would partially have that effect 
 also, but not so mischievously, because the officers liable to its 
 provisions would be generally known. But bonds to the Crown, 
 in security for the payment of duties, are given all over the pro- 
 vince by persons engaged in the trade and others, and no one 
 could be sure that he was safe in purchasing real estate if that 
 statute should be now adopted. 
 
 " There is another objection to the adoption of these statutes 
 which I think has some weight. The Supreme Court has 
 generally considered that when the local legislature has legis- 
 lated upon any particular subject, relative to which English 
 statutes had previously existed, the colonial courts are to be 
 guided by the provincial and not the English statutes in deciding 
 questions upon such subjects. Thus, upon a claim of a mother 
 to succeed to the personal estate of her deceased child, to the 
 exclusion of her other children, the Supreme Court of this pro- 
 vince decided that she was entitled to do so, because our legis- 
 lature had re-enacted the provisions of the statutes of Charles 
 II. upon that subject, but had not at that time (although they 
 have since) re-enacted those of 1 James II., which latter statute 
 had passed before we had a local legislature. 
 
 " Now, our legislature have had the subject of the securities 
 necessary to be given for the safe collection of the revenue, 
 under their consideration, and have passed laws upon that sub- 
 ject, which direct that the officers appointed to collect it shall 
 give bonds, in which they shall be joined by sureties, for the 
 faithful discharge of their duties ; and that those who import 
 goods liable to pay duties to the Crown, under the Acts of this 
 province, shall not only give bonds for the payment of those 
 duties as they become due, but shall also give warrants of 
 attorney to confess judgment upon those bonds ; a measure that 
 would have been unnecessary if the statute of Henry VIII. was 
 in force here, for that statute would have made the bonds them- 
 selves debts of record. If these sureties are not sufficient, the 
 legislature, and not the courts, should be applied to, to remedy 
 the evil. 
 
 " For these reasons I am of the opinion that these statutes, on 
 which the Attorney-General has founded the right of the Crown
 
 THE SOURCES OF OUR LAW. *83 
 
 to interpose in this case are not in force here, and consequently 
 that right cannot be sustained by them " 
 
 HILL, J. 
 
 " Then, upon the best consideration I have 
 
 been able to give to the question, I am of opinion that neither 
 the statute 33 Hen. VIII. c. 39, nor that of 13 Elizabeth, c, 4, 
 extend to, or are operative in, this province. There is confess- 
 edly no precise rule, nor can we expect to find any direct decision, 
 as to what Imperial statutes extend to the colonies discovered, 
 settled, and peopled by British subjects. The question seems to 
 be, find imhnl must of necessity bt>, left open to be decided in each 
 ^articular colony and case by the courts established in those colonies. 
 A law that would be very fit, advantageous, and applicable to 
 one colony, might be very inapplicable to, and unfit for another 
 one very requisite in one colony, might not be at all required 
 in another ; nay, might be very unfit for it, and injudicious to be 
 adopted. 
 
 " The general rule on this subject appears to be, that wherever 
 English subjects discover and possess themselves of an unin- 
 habited country, they carry with them such of the English laws 
 then in force as are applicable and necessary to their situation and 
 the condition of the infant colony ; as, for instance, laws for the 
 protection of their persons and property. Wherever an English- 
 man goes, he carries with him as much of the English law and 
 liberty as the nature of his situation will allow. Lord Mansfield, 
 in the case of Lindo v. Lord Rodney, reported in note (/) to the case 
 of Le Caux v. Eden, Doug. 594, says : ' The colonies take all the 
 common and statute law of England applicable to their situation 
 and condition.' Blackstone, in his Commentaries, Vol. I. 106 
 thus lays it down: 'Besides these adjacent islands (the islands 
 of Jersey, Guernsey, and others) our more distant plantations in 
 America and elsewhere are also, in some respects, subject to the 
 English law. Plantations or colonies in distant countries are 
 either such where the lands are claimed by right of occupancy 
 only, finding them desert and uncultivated, and peopling them for 
 the mother country ; or, when already cultivated, they have either 
 been gained by conquest, or ceded to us by treaties ; and both these 
 rights are founded upon the law of nature, or at least, upon that 
 of nations. But there is a difference between these two species
 
 84 THE CANADIAN CONSTITUTION. 
 
 of colonies with respect to the laws by which they are bound ; 
 for it hath been held that if an uninhabited country be discov- 
 ered and planted by English subjects, all the English laws then 
 in being, which are the birth-right of every subject, are immedi- 
 ately there in force. But this ' (that is the doctrine laid down 
 in Salk. 411 and 666, whom Blackstone quotes) 'must be under- 
 stood with very many and very great restrictions. Such 
 colonists carry with them only so much of the English law 
 as is applicable to their own situation and the condition of 
 an infant colony; such, for instance, as the general rules of 
 inheritance and of protection from personal injuries. The arti- 
 ficial refinements and distinctions incident to the property of 
 a great commercial people, the laws of police and revenue (such 
 especially as are inforced by penalties) the mode of maintenance 
 for the established clergy, the jurisdiction of spiritual courts, and 
 a multitude of other provisions, are neither necessary nor con- 
 venient for them, and, therefore, are not in force. What shall be 
 admitted and what rejected, at what times, and under what re- 
 strictions, must, in case of dispute, be decided, in the first 
 instance, by their own provincial judicature, subject to the 
 revision and control of the King in Council.' 
 
 " Blackstone, therefore, dissents from the unrestricted posi- 
 tion in Blankard v. Galdy, Salk. 411. 
 
 "Chitty, on Prerogatives of the Crown, p. 30, appears to adopt 
 the doctrine as modified and restricted by Blackstone. He say?, 
 ' If an uninhabited country be discovered and peopled by Eng- 
 lish subjects, they are supposed to possess themselves of it 
 for their sovereign, and such of the English laws then in force 
 as are applicable and necessary to their situation and the condi- 
 tion of an infant colony as, for instance, laws for the protection 
 of their persons and property are immediately in force. Wher- 
 ever an Englishman goes, he carries with him as much of Eng- 
 lish law and liberty as the nature of his situation will allow.' 
 
 " Chitty refers to an anonymous case, in 2 P. Will. 75, and to 
 the Queen v. Mayor and Aldermen of Norwich, 2 Ld. Raymond, 
 1245, in which last case Lord Holt refers to Blankard v. Galdy. 
 
 " Clarke's Colonial Law, p. 7, is merely a repetition of what 
 Blackstone has already said on this subject, and from whom I 
 have quoted.
 
 THE SOURCES OF OUR LAW. 85 
 
 " The whole tenor and spirit of what all the writers on tbis 
 subject have said, and of all the cases relating to it, in nay mind, 
 leave the question under consideration widely open, and that 
 whether a particular statute does or does not extend to a colon;/ ix to 
 be decided in each particular case by the colonial judicature, subject 
 to an appeal home. 
 
 "When this colony was first settled and possessed by English 
 subjects, were these two statutes applicable and necessary to the 
 condition and state of the first occupiers and possessors ? Did 
 the state of the colony require them to be in force ? I do not 
 conceive the question to be whether the whole or some small 
 part of these Acts might not, as it were, be pressed into the 
 service, but whether they are necessary to our wants and require- 
 ments? Looking then at the matter in this point of view, I 
 cannot say that these statutes were, or are, necessary to the state 
 and condition of Nova Scotia to its wants and requirements. In 
 that great country where these statutes were passed, the rights of 
 the Crown were considered sufficiently protected under the com- 
 mon law until the time of their enactment ; and in an infant 
 colony like this, at its first settlement, and even now, the rights 
 of the Crown will find ample and adequate protection under that 
 same law, without requiring the aid of these stringent statutes. 
 There is no danger, I think, of its being prejudiced in the collec- 
 tions of its revenue, or otherwise. 
 
 " Up to this period I have never heard of any complaint or 
 difficulties upon the subject. In England, where the Crown 
 revenues were so great, and derivable from so many resources, 
 and where its dues necessarily pass through so many hands, it 
 might be very proper to clothe the Crown with greater authority 
 and security to collect its revenues. But how could that be 
 necessary here, on the first settlement of the country, when the 
 Crown may be literally said to have had no revenue from any 
 source, nor any debts due to it ? But how has the colonial 
 legislature silently spoken upon this subject ? If it had been 
 thought that these statutes were wholesome, necessary, and 
 applicable to us, I cannot but think that our legislature would 
 have so said by re-enacting them. The legislature, in its very 
 first session in 1758, did re-enact many provisions of English 
 .statutes which were thought applicable to our situation, and
 
 86 THE CANADIAN CONSTITUTION. 
 
 from time to time such re-enactments have found their way into 
 our statute books, but we find nothing of these statutes being 
 re-enacted. Does not then this fact show in strong colors what 
 the opinion of our legislature was and has been on the matter? 
 for, as I have remarked, if occasion had called for it, there 
 undoubtedly would have been a re-enactment. As far, there- 
 fore, as the opinion of the legislature may be gathered, these 
 statutes do not extend to us ; and I must add, that, on a refer- 
 ence to our statute book, it will be found that very particular 
 attention has been paid to the securing the debts of the Crown 
 under our various revenue Acts, and particularly under those of 
 a later date. The mode of securing and the manner of collect- 
 ing are precisely pointed out, so that it is manifest the subject 
 of the Crown debts has been under the consideration of our own 
 legislature. I allude to this, not as showing that our legislature 
 would abrogate the statutes of Henry and Elizabeth, but as an 
 argument that they did not extend to us. 
 
 " Thus far, then, as to the legislature. What, then, has been 
 the opinion and practice among the profession ? Cases must 
 have arisen in which these statutes, if extending here, might, 
 and probably would, be called into operation ; and yet this is 
 the first occasion on which the attention of any court in the 
 province has been called to them. The contrary has not been 
 asserted ; and, no doubt, the fact is, that the writ of extent never 
 issued in this country. The ordinary process of our courts has 
 invariably been the mode of collecting the Crown debts. Why, 
 then, has this been so ? I apprehend merely because no incon- 
 venience has ever been found to flow from following the ordinary 
 and prevailing practice no detriment to the rights or interests 
 of the Crown. This non-user, if I may so speak, of either of 
 these statutes, this want of any reference to them, convinces me 
 that the profession, at all events, never considered them as 
 having any efficacy with us. 
 
 "Now, the interest in this case is entirely local, it alone con- 
 cerns the province and the support of its government; no 
 portion of this money goes into the private coffers of the 
 sovereign, or into the Imperial treasury; and when circum- 
 stances shall demand it, doubtless we shall pass our statutes of 
 Henry and Elizabeth, as was done in England.
 
 THE SOURCES OF OUR LAW. 87 
 
 But let us suppose that our legislature in 1758 had re -enacted 
 these two statutes, or that portion of them which relates to the 
 matter in hand ; could it be said that they were necessary, or 
 rather, could it be denied that their enactment would have been 
 absurd, inasmuch as there was nothing for them to operate on. 
 
 " The question, therefore, after all, is a narrow one, and may 
 be said to be more addressed to our judgment, as prudent and 
 riyht-judyiny men, than as lawyers and judges. My opinion,, 
 therefore, is based upon this consideration, that neither of these 
 statutes was applicable and necessary to our state and condition 
 when the province was first settled, nor at any time since, and 
 that the rights of the Crown are amply protected and secured by 
 the common law." 
 
 Acts in curtailment of prerogative seem to have been 
 favorably looked on by Nova Scotia judges. Magna Charta 
 and the second and third charters of Henry III. were held 
 (/) to be operative within the province, to prevent the 
 Crown from granting a general right of fishery ; for, as was 
 said, a grant to support that must be as old as the reign of 
 Henry II., and, therefore, beyond legal memory ; for, by 
 Magna Charta and the charters of Henry III., the king is 
 expressly precluded from making fresh grants. Again, it 
 was held (g) that where land had been granted, with a 
 condition that the grant should be void if the land were 
 not settled upon within a certain time, no new grant could 
 be made without inquest taken ; the provisions of the 
 statutes 8 Henry VIII. c. 16, and 18 Henry VIII. c. 6, 
 being held operative within the province, to prevent such 
 new grant from taking effect. The view acted upon by the 
 court is thus expressed : 
 
 " The very grievances intended to be remedied and redressed 
 by this statute, are those under which the subjects of this 
 province might well say they labored, if it were held that land, 
 
 (/) Meisner v. Fanning, 2 Thomp. 97. 
 
 (<7) Wheelock v. McKeown, 1 Thomp. 41 (2nd ed.) ; and see also Miller 
 v. Lanty, ib., 161.
 
 88 THE CANADIAN CONSTITUTION. 
 
 granted with a condition that the grant should be void if the 
 land were not settled on within a certain time, could be subse- 
 quently granted without inquest of office." 
 
 The same view was thus expressed in a later case (h) 
 involving consideration of the same statute : 
 
 " The court has uniformly decided that when there is plena 
 possessio held against the Crown particularly under color of 
 title the Crown must re-invest itself with the possession before 
 it can grant ; and, if it grant while it is out of possession, that 
 grant is void under 8 Henry VIII. c. 16, and 18 Henry VIII. 
 c. 6." 
 
 In a still later case (i), involving consideration of 21 Jac. 
 I. c. 14 an Act in pari materiel- with the statutes of 
 Henry, above referred to Young, C.J., speaking of Uniacke 
 v. Dickson and the statute there in question, says : 
 
 "The statute of James is of a different character. The 
 object of the former was to extend, that of the latter is to limit 
 and restrain, the prerogative of the Crown, and that for a highly 
 beneficial purpose, and for the protection and benefit of the 
 subject. What class of persons is better entitled to the favor of 
 the legislature and the courts than the men who transform a 
 rude country into smiling habitations, and fit it for the use and 
 enjoyment of man? 1 look upon this statute of James as 
 peculiarly suited to our condition and circumstances, and to 
 have the same title to be considered part of our law, and on the 
 same principle on which we have always recognized the Statute 
 of Uses and the statute </< l>unis until the present enactment 
 abolishing estates-tail." 
 
 The view expressed by Halliburton, C.J., in Uniacke v. 
 Dickson, that after a legislature has been duly c> instituted 
 in a colon}-, and has, so to speak, settled down to its work, 
 courts of law should be very cautious in giving effect t<> 
 Imperial Acts which had never been previously acted upon 
 
 (h) Scott v. Henderson, 2 Thomp. 115. 
 (0 Smyth v. McDonald, 1 Olc 1 . -J74.
 
 THE SOURCES OF OUR LAW. 89 
 
 in the colony (j), has evidently had a most powerful effect 
 in subsequent cases. For instance, the court refused to 
 visit upon the sheriff of Halifax penalties to which he 
 would have been liable under English statutes, because the 
 Nova Scotia legislature "have wisely legislated for the 
 
 whole matter The imperative words of the 
 
 English statute throw the responsibility upon the sheriff 
 in England, but these words are not to be found in our 
 statute, and therefore neither law nor justice throw it upon 
 him here" (&). 
 
 And, in like manner, the Imperial statutes 28 Edw. III. 
 c. 13, and 8 Hen. VI. c. 29, giving aliens a right to a 
 jury de mediatate linguae, and the other statutes with that 
 object, were held (I) not to be in force in Nova Scotia, 
 because : 
 
 " In the numerous Jury Acts, extending from 1759 . . 
 down to the Revised Statutes (2nd ser.), not the slightest 
 allusion nor provision for this privilege of aliens . . . is to 
 be found. This long course of legislation, coupled with the fact 
 that it has never before been claimed in our courts, though the 
 idea, and the usage in the mother country, were familiar to every 
 lawyer, is strong evidence of the opinions held by our judges and 
 legislators." 
 
 In a late case (m), the Supreme Court of Nova Scotia 
 had to consider the question whether or not the imperial 
 statute 13 Geo. II. c. 18, requiring notice to a convicting 
 justice, of a motion for a writ of certiorari, and limiting the 
 time for moving for such writ, to six months from convic- 
 tion, was in force in the province. Reference was made by 
 
 (j) See the passage, ante p. 81. 
 
 (k) Jackson v. Campbell, 1 Thomp. 18 (2nd ed ). 
 
 (/) Reg. v. Burdell, 1 Old. 126. 
 
 (m) Reg. v. Porter, 20 N. S. R. Reference is made to the fact that in 
 Upper Canada it had been always treated as in force there. It appears 
 to have been acted on in Nova Scotia. See Reg. v. McFadden, 6 R. & G. 
 426, and McDonald v. lionan, 7 R. & G. '25. As to New Brunswick, see 
 post, p. 94.
 
 90 THE CANADIAN CONSTITUTION. 
 
 Ritchie, J., in delivering the judgment of the court, to 
 Uniacke v. Dickson. After quoting the caution of Halli- 
 burton, C.J., above referred to,- the opinion proceeds: 
 
 " If this caution was necessary forty years ago, there is much 
 more necessity for caution now, in view of the fact that, since 
 then, very many Acts have been passed, regulating the practice 
 and procedure of this court, and the removal of causes from 
 inferior courts. . . . Now, our legislature has passed several 
 
 statutes on the subject. ..... I cannot see that 13 Geo. II. 
 
 c. 18, is obviously applicable and necessary to our condition 
 in this province ; and as our legislature has undertaken to legis- 
 late in the matter of certiorari, and has enacted many of the 
 provisions of the English statutes on that subject, omitting those 
 contained in the Act in question, I have been unable to come to 
 the conclusion that that Act is at present in force here." 
 
 A number of Imperial Acts, passed prior to the settle- 
 ment of Nova Scotia, have been acted upon without ques- 
 tion, as having been introduced into the colony upon its 
 settlement. The Statute of Uses was, without question, 
 treated as being in force within the province (n), while its 
 companion the Statute of Enrolment would appear to 
 have been thought inapplicable, by reason of the lack of 
 facilities for enrolment (o). The Imperial Acts, 31 Hen. 
 VIII. c. 1, and 32 Hen. VIII. c. 32, allowing partition 
 between joint tenants and tenants in common, were held 
 to have been introduced into Xova Scotia as part of the 
 English law ; and the Nova Scotia legislature, in passing 
 R. S. N. S. c. 139, s. 1, was held to have intended to 
 make the remedy thereby provided, concurrent with the 
 remedy under those statutes of Henry VIII. (/>). In the 
 case of "The Dart" (q), the provisions of Magna Charta, 
 and of the Statute of Staples, 27 Edward III. c. 17, 
 which provided that, " In case of war, merchant strangers. 
 
 () Shey v. Chisholm, James, 52. 
 
 (o) Berry v. Berry, 4 R. & G. 66; see the contrary holding in New 
 Brunswick, Doe d. Hanington v. McFadclen, Berton, 153, post, p. 92. 
 (p) Doane v. McKenny, James, 328. (q) Stewart.
 
 THE SOURCES OF OUR LAW. 91 
 
 shall have free liberty to depart the realm with their goods 
 freely," were enforced in favor of an American vessel, seized 
 before the commencement of the American war of 1812. 
 The Act 13 Eliz. c. 5, respecting fraudulent conveyances^ 
 seems to have been acted upon without question (r), as also 
 the Act 32 Henry VIII. c. 9, against the buying of pre- 
 tended titles (). K 
 
 - Upon a review of these Nova Scotia decisions, it would 
 certainly appear that the admission of Imperial statutes, as 
 operative within the province, has been the exception :. 
 those w r hich have been held to be in force, being, in the 
 main, statutes in amelioration of the rigors of the common 
 law, Acts in curtailment of prerogative or in enlargement 
 of the liberty of the subject. To a greater extent than has 
 been the case in either New Brunswick or Ontario, the 
 judges of Nova Scotia have deemed it the office of legisla- 
 tion, rather than of judicial decision, to bring into operation 
 within the province, the provisions of Imperial statutes not 
 < riginally capable of being made operative, but which might 
 be thought suitable to the changed circumstances of the 
 colony. And in the same spirit, it was laid down (t), that 
 where an English Act is held to be in force, the courts "will 
 not give it a further extension than it received in the land 
 of its origin. The operation of an English statute may be 
 confined, I take it, within narrower bounds by the circum- 
 stances and situation of the colony to which it has been 
 brought ; but it can never, as it appeal's to me, become a 
 
 (r) Tarratt v. Sawyer, 1 Thomp. 46 (2nd ed.) ; Moore v. Moore, 1 B. 
 iv G. 525 ; and Graham v. Bell, 5 E. & G. 90. 
 
 (*) Wheelock v. Morrison, 1 N. S. D. 337; Scott v. Henderson, 2 
 Thomp. 115. Other Imperial Acts which have been treated as in force 
 in Nova Scotia, are: 13 Edw. I. c. 18 (elegit), Caldwell v. Kinsman,. 
 James, 398 ; 2 Hen. IV. c. 7 (judgment of nonsuit), Grant v. Protection 
 Ins. Co., 1 Thomp. 12 (2nd ed.); 7 Hen. VIII. c. 4 (damages in replevin); 
 Freeman v. Harrington, 1 Old. 358; and see Congdoa's N. S. Dig., col. 
 1336, et seq. 
 
 (t) Freeman v. Morton, 2 Thomp. 352, per Bliss, J.
 
 "92 THE CANADIAN CONSTITUTION. 
 
 statute of greater effect or more enlarged construction 
 than was given to it in the intention of those by whom it 
 was passed. This is the office of legislation alone." 
 
 NEW BRUNSWICK. In this province, we have the same 
 difficulty to contend with as was noted in the case of Nova 
 Scotia, namely, that there are no reports of the earlier 
 decisions in the province during the time when this question 
 would be most frequently under consideration. The earliest 
 reported case (u) in which we are furnished with the opin* 
 ions of the judges, is Doe dem Hanington v. McFadden ( >}, 
 in which the Supreme Court of that province had to con- 
 sider whether or not the Statute of Uses and its companion 
 the Statute of Enrolment were in force in the province. 
 and that case has had a very large controlling influence in 
 New Brunswick. Chipman, C.J., quotes with approval the 
 language of Sir W. Grant in Attorney-General v. Stewart 
 (w), and takes as his guide, the principle enunciated in that 
 -case "Whether it be a law of local policy, adapted solely 
 to the country in which it was made, or a general regu- 
 lation of property, equally applicable to any country, in 
 which it is by the rules of English law that property 
 is governed." As to the Statute of Uses, no doubt what- 
 ever was expressed ; the fact that that statute had been 
 generally, if not universally, considered to be in force in 
 the old American colonies, was treated as indicative of the 
 general understanding that the statute was carried by 
 emigrating colonists as part of the law of England relating 
 to real property. As to the Statute of Enrolment, more 
 hesitation seems to have been expressed ; but all the 
 judges concurred in treating the two statutes as practically 
 one; and, although the Statute of Enrolment might be 
 s nnewhat difficult of application in Xew Brunswick, 
 it seems in have V-eii considered that tin- machinery 
 of the provincial courts could be utilized in thN respect. 
 
 ('; See note, ante, p. 79, as to Rex. v. McLaughlin. 
 
 (/) Berton, 153. () 2 Mer. at p. 1GO.
 
 THE SOURCES OF OUR LAW. 93 
 
 It was pointed out that the extension to the province, 
 of statutes which are in terms confined to the courts 
 of the mother country, is not, by any means, without 
 precedent, and several of such statutes, regulative of the 
 practice in " Her Majesty's Courts at Westminster," which 
 had always been treated as operative within the province 
 in relation to the superior courts there, were 'cited (x). 
 
 No such clear thread of principle can be discerned in 
 the decisions of the New Brunswick courts as has been 
 noticed in the case of Nova Scotia, and, for that reason., 
 it is somewhat difficult to classify the decisions. 
 
 In an early case (?/), it was held that the Imperial 
 Act, 32 Henry VIII. c. 39, which authorized the Ex- 
 chequer Court in England to give relief to Crown debtors,, 
 was operative to enable the Supreme Court of New Bruns- 
 wick to relieve from an estreated recognizance. 
 
 Following Attorney-General v. Stewart, it was held (z)- 
 that the Statute of Mortmain, 9 Geo. II. c. 36, is not in 
 force in New Brunswick. 
 
 In Kavanagh v. Phelon (), involving a consideration cf 
 the fees proper to be paid to a sheriff, it was held that 29 
 Eliz. c. 4, was not operative in New 7 Brunswick to regu- 
 late the sheriff's fees, in cases not provided for by the pio- 
 vincial ordinance upon the subject. Referring to Doe clem 
 Haniiigton v. McFadden (b), Chipman, C.J., says : 
 
 "For the same reason it seems to me that the statute o 
 Eliz. is entirely inapplicable to this or any other colony, and, 
 therefore, is not in force here. It is difficult to conceive of any 
 
 (x) 4 Anne, c. 16 (assignment of bail-bonds) ; 14 Geo. II. c. 17 (judg- 
 ment of nonsuit) ; and see Kelly v. Jones, 2 Allen, 473 (43 Eliz. c. 6 cer- 
 tificate as to costs), and Gilbert v. Sayre, ib. 512 (13 Car. II. c. 2 double 
 costs on affirmance in error). See Hesketh v. Ward, 17 U. C. C. P. 667, 
 referred to post. 
 
 (y) Reg. v. Appleby, Berton, 397. 
 
 (z) Doe d. Hasen v. Rector of St. James, 2 P. & B. 479 ; see the cases, 
 in Ontario, post. 
 
 (a) 1 Kerr, 472. (b) Ante p. 92.
 
 !>4 THE CAXADIAX COX.STITUTIOX. 
 
 subject that must be dealt with upon considerations more entirely 
 local, than the proper remuneration to be allowed to public 
 officers." 
 
 and he refers to the declaration in the provincial ordin- 
 ance that " there is no law or ordinance now in force regu- 
 lating sheriffs' fees," etc., and the regulation of the matter 
 by that ordinance, as indicative of the view of the legisla- 
 ture (c). 
 
 Although, as we have said, it is very difficult to classify 
 the New Brunswick authorities upon this question, this 
 much does appear: that in eveiy case the judges of the 
 courts there have endeavored to exercise their best judg- 
 ment as to the applicability of the Imperial statute to the 
 circumstances of the colony. If any distinction in principle 
 can be drawn between the decisions in New Brunswick and 
 those in Nova Scotia, it would appear to be along the line 
 indicated in the judgment of Halliburton, C.J., in Uniacke 
 v. Dickson that is to say, Imperial statutes have been 
 denied operative force in Nova Scotia unless clearly appli- 
 cable, while, in New Brunswick, the tendency, at least of 
 the earlier authorities, seems to have been not to reject 
 them unless clearly inapplicable. At the same time, it must 
 be confessed that this distinction cannot be clearly pointed 
 out in every case. 
 
 OXTARIO falls within the class of colonies into whose 
 legal system, English law has been introduced by the will 
 of the colony itself, as expressed in legislative enactment. 
 
 In the year 1791, the parliament of Great Britain 
 passed an Act, 31 Geo. III. c. 31, commonly known in 
 
 (c) For other New Brunswick cases, see Ex parte Ritchie, 2 Kerr, 7-5^ 
 -and Ex parte Bustin, 2 Allen. 211, in which the English statutes as to 
 certiorari proceedings were held not in force ; Wilson v. Jones, 1 Allen 
 658, in which 1 Rich. II. c. 12, giving a creditor an action of debt against 
 a sheriff on an escape, was (following an early unreported decision) held 
 not in force, although it was acted upon in Nova Scotia and the older 
 American colonies ; and see James v. McLean, 3 Allen, 164, and Doe d. 
 Allen v. Murrav, 2 Kerr, 359.
 
 THE SOURCES OF OUR LAW. 95 
 
 Canada as the Constitutional Act, 1791, by which provision 
 was made for the division of the province of Quebec into 
 two provinces, Upper and Lower Canada, and for the estab- 
 lishment therein of separate governments. During the 
 progress of the war of American independence, there had 
 taken place, from the disaffected colonies into what after- 
 wards became Upper Canada, a large influx of loyal subjects, 
 " born and educated in countries where the English laws 
 were established, and . . . unaccustomed to the laws 
 of Canada." And as, in 1774, the parliament of Great 
 Britain, by giving to the inhabitants of Canada, then 
 almost exclusively French, the law in accordance with 
 which they had been accustomed to regulate their daily 
 lives, secured their cordial adherence to British connection, 
 despite the enticing words of Washington and his French 
 allies (d),so, in 1791, they established the new immigration 
 in content in the upper province, by giving them a distinct 
 legislature, with the power to adopt such system of laws 
 as they might deem best calculated to secure and advance 
 their own material and religious welfare. Avoiding all 
 appearance of dictation to either province, the Constitu- 
 tional Act, 1791, simply provided that there should be 
 w r ithin each of the provinces respectively, a Legislative 
 Council and an Assembly, and that in each of the provinces 
 His Majesty should have power, by and with the advice 
 and consent of the Legislative Council and Assembly of 
 such province, to make laws for the peace, welfare, and 
 good government thereof, such laws not being repugnant 
 to the Act. All laws, ordinances, and statutes in force 
 within the provinces, or either of them, at the date of the 
 Act, w r ere to remain and continue as if the Act had not 
 been made, except in so far as not expressly varied by the 
 Act the Act is limited to the making of constitutional 
 changes or except in so far as the same might be there- 
 
 (d) See Confed. Deb. p. 606; Ryerson, "The U. E. Loyalists in 
 America."
 
 96 THE CANADIAN CONSTITUTION. 
 
 after repealed or varied by the Ley il<i fire 
 Assemblies of the respective provinces. The inhabitants of 
 Lower Canada, being content with the law under which 
 they had lived since 1774, made no change ; but, in the 
 very first parliament of Upper Canada, by the first Act 
 of its first session, "that was done which no doubt was 
 anticipated and intended as a consequence of erecting 
 Upper Canada into a separate province. Reciting that the 
 provision made by the Quebec Act, 1774 (before alluded to),, 
 had been manifestly intended for the accommodation of His 
 Majesty's Canadian subjects, and that the territory com- 
 prising Upper Canada had become inhabited principally by 
 British subjects, unaccustomed to the laws of Canada, it 
 repealed the provision in the Quebec Act, 1774, so far as 
 that Act had the effect of introducing the French law into 
 Upper Canada, and enacted, that ' from and after the 
 passing of this Act, in all matters of controversy relative 
 to jirujH/ftt/ ni'xl civil riyhts, resort should be had .to the 
 laws of England, as the rule for the decision of the same'" (e). 
 The criminal law of England had been in force in the 
 old province, and no legislation was deemed necessary by 
 the legislature of Upper Canada, beyond naming a day, in 
 reference to which the English criminal law was to be con- 
 sidered fixed (so far as Upper Canada was concerned), 
 unless altered by the colonial legislature. This date was 
 fixed by 40 Geo. III. c. 1 (U. C.), which enacted: "The 
 criminal law of England, as it stood on the 17th day of 
 September, 1792, shall be, and the same is hereby declared 
 to be, the criminal law of this province," subject to any 
 variations therein, effected by ordinances of the old pro- 
 vince of Quebec passed after the Quebec Act of 1774. 
 The difference in the phraseology in the two Acts of 32 and 
 40 Geo. III. respectively, must be carefully noted, for, as will 
 
 (e) Per Robinson, C.J., in Doe d. Anderson v. Todd, 2 U. C. Q. B. 82 ; 
 note the same expression, "property and civil rights, 1 ' in the B.-N. A. 
 Act, s. 92, ss. 13, and s. 94; and see Citizens v. Parsons, L. R. 7 Ap,x 
 Cas 90.
 
 THE SOURCES OF OUR LAW. 97 
 
 be seen hereafter, a marked difference in effect has been 
 attributed to these two enactments. In the various re- 
 visions of the statute law, which have since taken place, 
 these two Acts have been simply " brought up to date." 
 They now stand as c. 93 of the Revised Statutes of 
 Ontario (1887), and c. 144, s. 1, of the Revised Statutes of 
 Canada (1886), respectively. 
 
 In the province of Ontario, therefore, the whole question 
 turns upon the effect which should be given to these, our 
 own enactments, and so far as concerns the law relative to 
 l>i'operty and civil rights, it will be found that, owing to 
 the construction placed upon 32 Geo. III. c. 1, by the 
 courts in Upper Canada, the same method of enquiry has 
 been followed in that province (now Ontario) as in the 
 older provinces of Nova Scotia and New Brunswick. 
 
 Although the question is, with every session of our 
 parliaments, becoming less and less of vital importance, 
 still cases do even yet, and not infrequently arise, even in 
 these provinces, in which the rights of suitors depend upon 
 English statutes of considerable antiquity, making pro- 
 visions as to various matters upon which our parliaments 
 have omitted to exercise their legislative power. 
 
 Throughout the law reports of Upper Canada (Ontario), 
 numerous cases will be found in which laws passed by the 
 parliament of England, and in force there in 1792, were 
 without question acted upon by our courts as being the 
 law in Upper Canada. In the very first volume of reported 
 cases, by Taylor, several of such instances appear (/), and so 
 on through the reports to the present time. For instance, 
 no question seems to have ever been raised as to the 
 English Statute of Frauds, the Acts of Elizabeth's time 
 as to fraudulent and voluntary conveyances, and a casual 
 glance at our Digests will reveal many others, as to which 
 no doubt has ever found a reporter. As being in affirm- 
 ance of the common law, or in amendment of some defect 
 
 (/) Taylor, 546. 
 CAN. CON. 7
 
 98 THE CANADIAN CONSTITUTION. 
 
 V 
 
 in that law, working general detriment, their position, as 
 practically part and parcel of general English law, was too 
 fully recognized to be questioned. But not to mention 
 many English Acts, whose non-applicability (if that be 
 sound ground for rejection) is debateable many old enact- 
 ments, some regulative of medieval men by medieval 
 methods, some but parliamentary tombstones, marking the 
 graves of local (English) evils of a temporary character, 
 have been invoked in Canadian litigation put forward 
 as having been introduced here by colonial enactment, 32 
 Geo. III. c. 1. 
 
 Somewhat of this sort, was the statute passed in 5 Eliz. 
 (c. 4), making void, in the interests of the guilds, articles 
 of apprenticeship for a less term than seven years. It was 
 the first statute upon which argument seems to have been 
 had, and in three early cases it received consideration. In 
 the first (g) of these cases, Robinson, C.J., said: "The pro- 
 visions of the statute . . are no longer part of the law 
 of England ; they have been repealed (Ji) as impolitic, even 
 in the condition of that populous country. In my opinion, 
 these provisions were never part of the law of this pro- 
 vince." In the second (i), Sherwood, J. (delivering the 
 judgment of the court), says, after referring to the terms of 
 32 Geo. III. c. 1 (U. C.) : * 
 
 " The intention and meaning of the legislature undoubtedly 
 was, that resort should be had to such of the laws of England 
 as are applicable to the state of society in a British colony, 
 which is very different in many respects from the state of society 
 in England. Courts of justice are to decide on the applicability 
 of the law to any particular case, when doubts arise on the sub- 
 ject ; and upon the same principle, they must decide upon the 
 adaptability of any particular law of England to this province, 
 in a general point of view. The statute 5 Eliz. c. 4, is en- 
 titled, " An Act containing divers orders for artificers, laborers, 
 
 (g) Fish v. Doyle, Drap. 328 (1831). 
 
 (h) By 59 Geo. III. c. 96. 
 
 (0 Dillingham v. Wilson, 6 U. C. Q. B. (0. S.) 85 (1841).
 
 THE SOURCES OF OUR LAW. 99 
 
 servants of husbandry, and apprentices"; and the Act itself, 
 from beginning to end, contains internal evidence that no resort 
 can be properly had to it, within the scope and meaning of our 
 Provincial Act already mentioned, as a rule for deciding the 
 manner in which apprentices are to be bound in this province, 
 and the legal effect of such binding. That Act was obsolete in 
 
 England even before the statute which repealed it 
 
 We consider the statute of 5 Eliz. c. 4, as a local Act, which 
 was probably adapted to the state of society in England three 
 hundred years ago, but is not now, and never was, adapted to 
 the population of a colony, and was never in force here." 
 
 In the third case (j), it was broadly contended : " The 
 court can not say, that these statutes are not in force ; 
 it is not a question of their applicability that is to be de- 
 cided, the decision must be on the express words of a 
 statute. When the law is to be given to a colony settled 
 and planted by British subjects, we can understand that 
 only such parts of the English statute law as are applicable 
 shall be declared to be in force ; but when the statute law 
 is introduced by legislative enactment, there can be no 
 question about the applicability of statutes, as the legisla- 
 ture have shown that their determination was to introduce 
 them all, with the exception of those parts which are 
 expressly excepted." In delivering the judgment of the 
 court, Chief Justice Robinson says : 
 
 " It cannot possibly admit of doubt that its 
 
 provisions are inapplicable to any state of things that ever 
 existed here ; a clause here and there might be carried into 
 effect in this colony, or anywhere, from the general nature of 
 their provisions ; but that is not sufficient to make such a 
 statute part of our law, when the main object and tenor of it, is 
 wholly foreign to the nature of our institutions, and it is there- 
 
 (j) Shea v. Choat, 2 U. C. Q. B. 211 (1845). The head-note is mis- 
 leading. In speaking of 20 Geo. II. c. 19, Eobinson, C.J., says: " My 
 inclination at present is that that statute in its present scope and bear- 
 ing is not applicable to this province"; but he decided that, even if in 
 force, the pleading could not be supported, not showing a case within the 
 statute.
 
 100 THE CANADIAN CONSTITUTION. 
 
 fore incapable of being carried, substantially and as a whole, into 
 execution." 
 
 These cases distinctly affirm, that (leaving out of con- 
 sideration the Poor and Bankruptcy laws) (k) not every 
 English statute in force in England in 1792, even though 
 such statute was, in a sense, of general application in 
 England, is in force here under the terms of 32 Geo. III. 
 c. 1 that a recognition must be accorded, so to speak, to- 
 the differences of environment, and that the courts of Upper 
 Canada should consider the question of the adaptability of 
 any English Act " to the nature of our institutions." To 
 some extent, this view of the effect of 32 Geo. III. c. 1, has 
 not met with entire approval by individual judges in subse- 
 quent cases; but, as will be seen, the decided tendency of the 
 authorities has been to support the principle laid down in 
 these three cases. 
 
 Baldwin v. Roddy (I) involved the question as to the 
 English Act "for the removal of causes from inferior 
 courts " (19 Geo. III. c. 70). That Act " seemed designed 
 in England to supply a defect which parliament occasioned 
 when they took away arrest from inferior courts in cases- 
 under 10" the process of those courts could be evaded 
 by the removal of a debtor's effects from the limits of their 
 jurisdiction and it was held by Robinson, C.J., to be intro- 
 duced here. "It is a reasonable and good provision, general 
 in its nature ; not confined as to locality ; not confined to 
 certain courts, or to any amount of judgment, nor incum- 
 bered with any forms or requisitions inapplicable to the 
 nature of our courts." 
 
 In 1836, the question arose (m), whether the British 
 statute (22 Geo. II. c. 40), "for the more effectually 
 
 (k) Expressly excepted by 32 Geo. III. c. 1 (U. C.) s. 6. 
 
 (/) 3 U. C. Q. B. (O. S.) 166; and see Gregory v. Flanagan, 2 U. C. Q. B. 
 (O. S.) 552. 
 
 (m) In Leith v. Willis, 5 U. C. Q. B. (O. S.) 101 ; followed in Heartly 
 v. Hearns, 6 U. C. Q. B. (O. S.) 452.
 
 THE SOURCES OF OUR LAW. 101 
 
 restraining the retailing of distilled spirituous liquors," the 
 12th section of which denied all right of action to any one 
 selling less than 20 shillings worth at one time, was to be 
 considered in force in Upper Canada or not. The Act con- 
 tained 32 clauses, as to all of which (other than the 12th 
 section) Robinson, C.J., said : " Not one with any reason 
 can be considered as applicable to this province"; and as to 
 that section he said: 
 
 " Upon a view of the whole case, though I feel it difficult to 
 rest a decision upon a perfectly clear ground, I am of opinion 
 that the British Act does not prevent the plaintiff recovering. 
 It was passed in England to meet a particular evil, which was 
 stated to be increasing there of late among a particular class of the 
 inhabitants. We cannot say judicially that the circumstances so 
 far correspond in this province, as to make it a reasonable 
 intendment that a statute passed to meet such exigency in 
 England, is to be treated as a part of the general statute law of 
 England, intended to be introduced into this province." 
 
 upon the further ground, too, that the Provincial Act 
 3 William IV. c. 1, made provisions inconsistent with the 
 provisions of the British Act probably the safer ground 
 for decision upon fixed principle the latter was held not 
 in force here. 
 
 The English statute 9 Geo. II. c. 36 commonly 
 classed as one of the Mortmain Acts has been under 
 review in a number of decided cases ; and in the argu- 
 ment of counsel and the opinions of the judges, will be 
 found all the considerations which can be urged in support 
 of the two different views those who would uphold the 
 Act as being introduced here by the Provincial Act 32 
 Geo. III. c. 1, urging that because the English laws 
 relating to the poor and to bankruptcy, were in terms 
 excluded, the maxim " express io unius exclusio est al- 
 ter in*" should be applied, and all other English Acts of 
 general application in England, held to be in force in 
 Upper Canada ; while those who denied the binding force
 
 102 THE CANADIAN CONSTITUTION. 
 
 of the statute here argued for a more limited introduction 
 of the English law. The latter view clearly prevailed, and 
 the various considerations urged in its support, will appear 
 from a review of the cases. In the result, the statute was 
 decided to be in force in Upper Canada, but only on the 
 ground of its implied recognition l>>i ovp colonial legisla- 
 ture; the view of a decided majority being, that it was 
 not introduced by the sole force of 32 Geo. III. c. 1. In 
 deciding in favor of the propriety of making comparison 
 between the different situations, material and social, of the 
 mother country and the colony, as well as in treating 
 colonial recognition as a good ground for holding an 
 Imperial Act in force in a colony, the courts of Upper 
 Canada (Ontario) have practically adopted the view of 
 Robinson, C.J., that the terras of the Act 32 Geo. III. c. 1 
 (U. C.), "do not place the introduction of the English law on 
 a footing materially different from the footing on which 
 the laws of England stand in those colonies in which they 
 are merely assumed to be in force, on the principles of the 
 common law, by reason of such colonies having been first 
 inhabited and planted by British subjects " (n). This is the 
 construction to which reference was a short time ago made. 
 as placing Ontario upon the same line in this matter as 
 the maritime provinces, and (as we shall point out) the 
 more lately acquired provinces of the Dominion of Canada. 
 The leading case, as to this statute of Mortmain, is Doc 
 dem Anderson v. Todd, decided in 1845, from which we 
 have already quoted, and which has been followed in a 
 number of subsequent cases up to 1876, when the Court of 
 Appeal for Ontario, upon a careful consideration of the 
 whole subject, established the decision in the earlier case. 
 To attempt to set forth the views of Robinson, C.J.. in 
 language other than his own, would so weaken their ett'eet, 
 that we feel constrained to quote his opinion somewhat at 
 length : 
 
 i /i) Doe (L Anderson v. Todd, 2 U. C. Q. B. at p. 86.
 
 THE SOURCES OF OUR LAW. 
 
 -The question is then left to be determined whether the 
 devise made by that will to a charitable use is void in this 
 country under the provisions of the statute 9 Geo. II. c. 36 ; 
 that it is of such a nature as to come within the terms of that 
 statute, cannot be doubted, and the only point, therefore, to be 
 determined is, whether the statute is in force in Upper Canada. 
 
 If this had been a colony of that description, and 
 
 not a conquered or ceded country, having already laws of its 
 own, and if the question whether the statute 9 Geo. II. c. 36, 
 could be regarded as in force or not, had turned wholly on the 
 point whether, upon the principles of the common law, without 
 the interposition of any legislative enactment, that statute 
 formed part of the law binding upon all who settled in the 
 colony or plantation, I think we should without difficulty have 
 held that it did not, for the reasons expressed in this passage of 
 the commentaries (o),and which received the sanction of a judicial 
 decision, in the case of The Attorney. General v. Stuart, 2 Mer. 
 144. from a very eminent judge (Sir W. Grant), and in refer- 
 ence to the very statute now under consideration. But it is 
 plain that the question does not rest here on that footing, and 
 though the case of Attorney General v. Stuart may appear very 
 material to its decision, it cannot be so upon the footing that this 
 is a colony planted originally by British subjects, to which all 
 who have come, have brought the law of England as their birth- 
 right, but it may be material as illustrating the extent and 
 effect which should be given to the words of a provincial 
 statute introducing the law of England, which statute, after 
 all considerations are stated, must form the foundation of 
 our decision. The country in which this question rises 
 formed part of the conquered province of Canada, ceded by 
 the French government, by the Treaty of Paris, 10th July, 
 1763. and in which, therefore, after the cession, it was in the 
 power of the Crown, independently of the legislature (p), to 
 have introduced either the laws of England, or any other ; 
 but the laws before enjoyed by the conquered peoplewould 
 
 (o) Of Blackstone, from which full extracts have already been taken ; 
 see ante, p. 78 et seq. 
 
 ip) See Chap. VI. ^j<wf, for a reference to the contention to the con- 
 trary raised in Lower Canada.
 
 104 THE CANADIAN CONSTITUTION. 
 
 prevail until such introduction. These principles are clearly 
 and precisely stated by the Master of the Kolls (2 P. Wins. 75) 
 to have been determined by the Lords of the Privy Council, 
 on an appeal to the king in council from the foreign planta- 
 tions. Lord C. J. Holt assents to them, in emphatic terms, 
 in Smith v. Cooper, 1 Salk. 666, where he says, ' the laws of 
 England do not extend to Virginia ; being a conquered country . 
 their law is what the king pleases.' I do not, however, under- 
 stand in what sense his Lordship speaks of Virginia as a 
 conquered country. In 1 Salk. 44, the principles we are consider- 
 ing are again stated by Lord C. J. Holt, and were elaborately 
 set forth in modern times by Lord Mansfield, in the well-known 
 case of Campbell v. Hall, 1 Cooper, 204. The proclamation 
 of October, 1763, on the effect of which that judgment pro- 
 ceeded, was an act of the Sovereign, introducing the law of 
 England, in general terms, into countries ceded by the Treaty of 
 Paris ; but, by some inadvertence, the territory which was then 
 formed into the Province of Quebec, was so described in that 
 proclamation as to exclude the greater part of Canada, in regard 
 to which no provision was made for its civil government. This 
 omission is noticed in the preamble to the British statute 14 
 Geo. III. c. 83. If the territory which lately formed Upper 
 Canada, and in respect to which the question now before us has 
 arisen, had been included within the limits given by that pro- 
 clamation to the Province of Quebec, and if to this moment we 
 had been left to the effect of that proclamation, which assured 
 to the inhabitants ' the enjoyment of the benefit of the laws of 
 England,' and directed that all causes, criminal and civil, should 
 be determined according to law and equity, and * near <>* nunj 
 In , <i>/n,'iil>le to tin' lairs <>f Enrilaml, then the question would have 
 been, whether in reason we should hold that any other laws 
 were introduced by those general words than such laws as 
 English colonists, planting a newly discovered country, would, 
 on the principles of the common law, have carried with them ; 
 and, in considering that point, the observations of Sir William 
 Grant, in Attorney-General v. Stuart, would have strongly 
 applied, and might, indeed, have been taken as direct authority. 
 Then, how does the question stand on the real facts of 
 the case ? The British statute 14 Geo. III. c. 83, noticing
 
 THE SOURCES OF OUR LAW. 
 
 105 
 
 the defect in the proclamation of the 7th of October, 1763, 
 enlarged the limits there assigned to the Province of Quebec, 
 and made them clearly embrace the country now involved in 
 this question (if not the whole of Upper Canada) ; and parlia- 
 ment, by that Act, for the satisfaction of her Majesty's 
 Canadian subjects, provided that within the whole of the terri- 
 tory thus denned, in all matters of controversy relative to pro- 
 perty and civil rights (</), resort should be had to the laws of 
 Canada (that is, the laws which prevailed in Canada before the 
 conquest), for the decision of the same. This gave a new start- 
 ing point with regard to the question, and puts an end to all 
 doubts which might have arisen under the proclamation, which, 
 in this respect, was wholly abrogated. The statute 31 Geo. III. 
 c. 31, which divided the Province of Quebec, and gave to Upper 
 Canada a distinct legislative body, and did not by anything con- 
 tained in it affect the terms of this question, left the French- 
 Canadian law in force, but it created a legislature, with power to 
 make laws for the peace, welfare, and good government of the 
 province, and which, under the very general terms of that 
 authority, might alter or abrogate the existing law, if it thought 
 proper. In the first statute passed by this legislature, 32 Geo. 
 III. c. 1, that was done which, no doubt, was anticipated and 
 intended as the consequence of erecting Upper Canada into a 
 separate province. Reciting that the provision made by the 
 14 Geo. III. c. 83, had been ' manifestly intended for the 
 accommodation of his Majesty's Canadian subjects,' and that 
 the territory comprising Upper Canada had become inhabited 
 principally by British subjects, unaccustomed to the law of 
 Canada, it repealed the provision in the 14 Geo. III. c. 83, so 
 far as it had the effect of introducing the French law into Upper 
 Canada, and enacted, that ' from and after the passing of that 
 Act, in all matters of controversy relative to property and 
 civil rights, resort should be had to the laws of England, as 
 the rule for the decision for the same. And that all matters 
 relating to testimony and legal proof in the investigation of 
 fact, and the forms thereof, in the several courts of law and 
 equity within this province, shall be regulated by the rules of 
 evidence established in England ' ; with a proviso that the 
 
 (q) See Citizens v. Parsons, L. R. 7 App. Cas. 96.
 
 106 THE CANADIAN COXSTITl'TlnX. 
 
 Act 'should not be construed to interfere with the subsisting 
 provisions respecting ecclesiastical rights or dues within the 
 province, or with the forms of proceedings in civil actions, or 
 the jurisdiction of the courts already established,' or to intro- 
 duce ' any of the laws of England respecting the maintenance of 
 the poor, or respecting bankrupts.' On this foundation rests 
 our right to the enjoyment of the laws of England, except as 
 regards the criminal law, which, having been introduced by the 
 royal proclamation into the province of Quebec as there denned, 
 was afterwards, by the statute 14 Geo. III. c. 83, extended to 
 the whole territory (including Upper Canada), which was by that 
 Act made to constitute the Province of Quebec, and has ever 
 since been allowed to continue in force there; being expressly 
 recognized in Upper Canada by 40 Geo. III. c. 1 (>), and modi- 
 fied by that and many subsequent statutes. Except for the 
 purpose of tracing the history of the introduction of the laws 
 which govern this colony, it was unnecessary to the decision of 
 the point before us, to have gone further back than the statute 
 32 Geo. III. c. 1 ; whatever was done before cannot affect the 
 question, though some things which have been done afterwards 
 may. Then, looking in the first place at the words of this 
 statute, it is my opinion that they do not place the introduction 
 of the English law on a footing materially different, as regards 
 the extent of the introduction, from what would have been, or 
 rather from what was the effect of the proclamation of 7th 
 October, 1763, in those territories to which it extended, or from 
 the footing on which the laws of England stand in those 
 colonies in which they are merely assumed to be in force on the 
 principles of the common law, by reason of such colonies having 
 been first inhabited and planted by British subjects. The 
 restrictions intimated in the passage which I have cited from the 
 commentaries and the reasons of Sir Wrn. Grant, in the case of 
 Attorney- General v. Stuart, apply, I think, in the case of an 
 introduction by express enactment in such general terms, as 
 well as in the other case. It would have been hardly pos- 
 sible for the legislature to have excepted, in special terms, all 
 those British statutes which, being inapplicable to the "con- 
 
 !r) See post, p. 123 et seq.
 
 THE SOURCES OF OUR LAW. 107 
 
 dition of the colony, they might not wish to include as 
 parts of the law of England. And it is impossible to allow 
 that they could have intended, by the words they used, to 
 embrace every provision in the British statute book which 
 they did not specially except. It is true, indeed, that they have 
 made some special exceptions ; in their enactment they have 
 been careful to provide that we are not, under the general words 
 used by them, to take the English poor laws and bankrupt laws 
 with the rest ; these were both of them systems of law framed 
 wholly by English statutes. It cannot be denied to be a maxim 
 that ' mentio unim e.irlusio est (ttterius.' And it may be said 
 that the legislature, in making these two exceptions, evinced 
 their impression, that, if they had not made them, the poor laws 
 and bankrupt laws would, under the words which they had used 
 before in the statute, have been introduced into the province. 
 
 iThe argument, consequently, applies quantum valent; but I am 
 of opinion that we cannot allow it so much force as to admit 
 that every English statute of a general nature, not excepted, 
 is in force because it was not excepted. The legislature, look- 
 ing on the poor laws and bankrupt laws as unsuited to the 
 condition of the colony, were determined to leave no room for 
 doubt as to their exclusion; and, therefore, for greater caution, 
 expressly excepted them ; but if we were, therefore, now to hold 
 that all statutes which they have not excepted, and which could 
 by their nature be enforced here, must, therefore, be binding 
 upon us, we should be making great, and, 1 fear, absurd^ 
 changes in our system of laws, as it has been always hitherto 
 received and acted upon here. The game laws, for instance, are 
 not excepted in the statute ; nor the statutes which disable 
 persons from using a trade who have not served seven years 
 apprenticeship (s), nor any of the multitude of acts relating to / 
 certain trades and manufactures; and, indeed, it would be easy / 
 to enumerate a long list of statutes, all actually capable of being / 
 acted upon in this country, but which, having been passed upon / 
 grounds and for purposes peculiar to England, and either wholly 1 
 or in a great degree foreign to this colony, have never been \ 
 attempted to be enforced here, and have never been taken to \ 
 apply to us. And, indeed, several occasions have arisen in 
 
 (.-I See ante, p. 98.
 
 108 THE CANADIAN CONSTITUTION. 
 
 which this court has determined, with respect to certain British 
 statutes passed before our provincial statute 32 Geo. III. c. 1, 
 that they formed no part of the law of this province, not having 
 provisions in their nature applicable, and such as it could be 
 supposed the legislature intended to introduce under the general 
 words used by them ; these words, too, it must be remarked, 
 are not such as expressly introduce the whole civil law of Eng- 
 land ; they seem rather intended to be more prudently limited 
 to the purpose of giving the principles of English law, modified, 
 of course, as they may have been by statutes, as the rule of 
 decision (t) for settling questions as they might arise relative to 
 property and civil rights. Still it must be confessed that a 
 wide field is opened for disputes by the term civil rights. Among 
 a man's civil rights it may be argued is the right of disposing of 
 his property as he thinks fit. And when he has made a dis- 
 position of it, the legality of which is questioned, that seems to 
 present a point which must be solved, since our statute 32 Geo. 
 III. c. 1, by conceding what a man in the exercise of his civil 
 rights might in such a case do in England, and taking that as 
 the rule for deciding the controversy between the persons claim- 
 ing under the disposition which may be questioned-, and the 
 person who would be entitled to the property as the representa- 
 tive of the deceased, if he had not the power to dispose of it as 
 he has done. To decide these constitutional points, for such 
 they are, upon principles so manifestly clear and consistent as 
 to keep free from all appearance of conflicting decisions, is more, 
 I apprehend, than it can be hoped to attain. That >nix<r<i 
 fii'i-rititK which is said to exist where 'ju* ext ruyum ' is so justly 
 dreaded in these times, that no one can consent to admit that 
 there exists in any tribunal an arbitrary discretion to say what 
 British statutes shall be in force here, and what not ; and yet, on 
 the other hand, in the present state of our jurisprudence, there 
 cannot be said to be any other method of settling all these doubts 
 as they arise, than for courts of justice to determine them, not 
 by coi>/ arbitrary e.i'erciw f their trill, for they can claim n<> 
 
 (t) See Moulson v. Commercial Bank, 2 U. C. Q. B. 338, involving 
 the question how far the English Bankruptcy Act was introduced by the 
 first Canadian Bankruptcy Act, which used much the same form of 
 expression.
 
 THE SOURCES OF OUR LAW. 109 
 
 such riyht, but upon the best rieira which the;/ can take of an/u- 
 inents ichich cannot in their nature lead to any clear and incontestable 
 conclusion (u). To repeat what I have already quoted from Mr. 
 Justice Blackstone, ' What shall be admitted and what rejected, 
 at what times and under what restrictions, must, in case of 
 dispute, be decided, in the first instance by the provincial judica- 
 ture, subject to the revision and control of the King and council,' 
 and we may add, subject also to any express provision which the 
 legislature of the mother country, or of the province, may think 
 fit to make. With regard to this particular statute, 9 Geo. II. 
 c. 36, when I consider the English decisions as to what are 
 charitable uses within the intention of the Act, I cannot persuade 
 myself that there have not been many dispositions made in this 
 province of property, both by deed, and by will which would be 
 held to come within the prohibitions of the statute, but which 
 have nevertheless been acquiesced in and executed without 
 question. In the case of Doe dem McDonald and others v. 
 McDougall in this Court, Trin. Term, 3 & 4 Will. IV., the 
 question whether this statute was in force here was discussed, 
 and as far as I know, for the first time. The point was not 
 determined in that case, for the judgment proceeded on other 
 grounds of objection, which prevailed ; but I recollect that I 
 formed and expressed an opinion upon it, and that, looking to 
 the reason of the thing, and fully concurring in the sentiments 
 which had been delivered by Sir W. Grant, in the case of 
 Attorney-General v. Stuart, I was disposed to look upon the 
 statute as not binding in this province, and that would still be 
 my opinion, if the point were left to depend wholly on the effect 
 of our statute 32 Geo. III. c. 1. I think the reasoning of the 
 Master of the Rolls, as applied to the particular provisions and 
 exceptions in that statute, is obvious and irresistible, and that 
 it should lead us to say, that the legislature, if they had given 
 no other evidence of their intention than is to be found in statute 
 82 Geo. III. c. 1, did not intend by that Act to introduce the 
 statutes erf Mortmain, among which the 9th Geo. II. is usually, 
 though not very accurately, classed. But my opinion is that we 
 cannot properly hold that opinion now, after the legislative 
 
 (M) Compare with this the language of Mr. Justice Hill, in Nova 
 Scotia, ante, p. 87.
 
 110 THE CANADIAN CONSTITUTION. 
 
 exposition which has been afforded, and especially in recent times, 
 of the assumed effect of that statute. The legislature, it is 
 admitted, are the best interpreters of their own laws, and to 
 say nothing of other evidences they have given of their under- 
 standing upon this point, bj r the Church Temporalities Act 
 passed in 3 & 4 Vic. c. 78, they have provided that lands may 
 be conveyed to such uses, for the benefit of the United Church 
 of England and Ireland in this province, as would clearly have 
 been prohibited by the British statute 9 Geo. II., and they have 
 shown it to be their understanding that without such express 
 legislative authority, the English statutes of Mortmain would 
 have restrained parties from making such a disposition, for they 
 have added the words ' the Acts of parliament commonly called 
 the statutes of Mortmain, or other Acts, laws, or usages to the 
 contrary thereof notwithstanding,' 9 Geo. II. c. 86, being 
 commonly regarded as one of these statutes of Mortmain ; but 
 the legislature not being really anxious to relieve parties in this 
 instance entirely from its restrictions, they accompanied the 
 authority given by the Act with limitations in the same spirit, 
 though not to the same extent, as those contained in the 9 Geo. 
 II. c. 86. They only give validity to deeds conveying lands to 
 the use of the church, provided such deeds shall be made and 
 executed six months at least before the death of the person 
 conveying the same, and shall be registered within six months 
 after his decease. The recognitions by the legislature to which 
 I have alluded, are subsequent to the discussion of the question 
 in Doe dew McDonell et al. v. McDougall et al., whether the 
 statute 9 Geo. II. c. 36, was or was not binding in Upper 
 Canada. We can hardly suppose a point more especially within 
 the province of the legislature to decide, than whether a 
 particular part of the statute law of England is or is not so far 
 in its nature applicable to the state of things in this province, 
 that it may in reason be considered to be included within the 
 operation of the statute which they had themselves passed, 
 introducing the law of England relative to property and civil 
 rights. 
 
 "If, after the Church Temporalities Act, which I have 
 particularly referred to, and which certainly is based on the 
 assumption of the statutes of Mortmain being in force here, we
 
 THE SOURCES OF OUR LAW. 
 
 Ill 
 
 were to hold that the statute in question, 9 Geo. II. c. 36, is not 
 in force, then this incongruity would follow, that while people 
 would be restricted from conveying lands to religious and 
 charitable uses connected with the Church of England, in any 
 other manner than by a deed made six months before the death 
 of the grantor, and registered within six months after, they 
 might convey their lands to religious and charitable purposes 
 connected with any other denomination of Christians, without 
 any restrictions whatever, and might devise all their estates to 
 such uses, even upon their death-beds. What is said by the 
 Master of the Eolls, in Curtis v. Hutton (r), very strongly 
 accords with this view of the case. If the legislature had left 
 the subject of Mortmain untouched, making no reference to 
 it in any of their Acts, then I think for the reason given by Sir 
 \V. Grant, in Attorney-General v. Stuart, we should have held 
 that the statutes of Mortmain were not introduced by the pro- 
 vincial statute 32 Geo. III. c. 1 ; but to treat them as inappli- 
 cable to this province, and on that ground to keep them wholly 
 out of view, after what the legislature has done in contemplation 
 of their being in force, would lead to greater inconveniences and 
 inconsistencies than those which Sir William Grant has pointed 
 out as arguments against their being held generally inapplicable 
 to the colonies. We ought, in my opinion, now to take into our 
 view all that the legislature has done bearing on this question ; 
 and doing so, we must hold that the statute 9 Geo. II. c. 36, is 
 part of our laws, and that under it the disposition made by the 
 testator by 'the will in this case is void, and that the estate has 
 consequently devolved on the heir-at-law, the lessor of the 
 plaintiff." 
 
 It should be remarked, however, that Jones and McLean, 
 JJ., appear to have entertained the view that the statute in 
 question was introduced by 32 Geo. III. c. 1, as being a part 
 of English law c<ip<ilil< <>f application to Upper Canada, 
 but both treat the question of applicability as one proper 
 for consideration. McLean, J., puts it thus : 
 
 " It is evident from the words of the statute, that they 'shall 
 form the rule' for such decisions, that the legislature must have 
 
 (v) 14 Ves. 541.
 
 112 THE CANADIAN CONSTITUTION. 
 
 been well aware that in very many other matters, as well as in 
 reference to the Poor and Bankrupt laws, the laws of England 
 were wholly inapplicable to the circumstances of this province, 
 and could not therefore be introduced as a body of laws to be 
 enforced in all cases. They are therefore only to form the rule 
 in all matters in which they can properly and reasonably be 
 brought into operation here. The statutes of Mortmain form a 
 part of the law of England introduced as the rule of decision in 
 all cases coming under their operation, and there is nothing to 
 prevent their application to the circumstances of the country." 
 
 on the effect of subsequent legislative recognition they 
 agreed with the Chief Justice, and the unanimous judgment 
 of the court was that the statute had the force of law 
 in Upper Canada. 
 
 The general tenor of the decisions in the other cases 
 involving a consideration of this statute down to 1876, 
 will sufficiently appear by the following extract from 
 the argument of counsel in the case in appeal about 
 to be noted : " Hallock v. Wilson (ic) follows Doe Anderson 
 v. Todd, and proceeds on the ground that registration is 
 substituted for enrolment, and that the statute 9 Geo. II. 
 c. 36, is in force, because certain provincial statutes have 
 recognized it as being in force. Mercer v. Hewstou (,') 
 expresses a doubt whether the statute is in force. That 
 decision follows Doe Anderson v. Todd, as being the law 
 until otherwise determined by the Court of Appeal. Ander- 
 son v. Dougall (y) and Anderson v. Kilboum (z) do not 
 discuss the question whether the statute is in force or not; 
 and Davidson v. Boomer () concedes that the statute is in 
 force in this province, following Doe Anderson v. Todd: but 
 in Hambly v. Fuller (&) the judgment only states that it 
 must be held that the statute is in force, upon the above 
 authorities, until otherwise decided by the Court of Appeal. 
 
 (if) 7 U. C. C. P. 29. (2) 16. 219. 
 
 (x) 9 U. C. C. P. 349. (a) 15 Grant, 1, 218. 
 
 ((/) 13 Grant, 164. (6) 22 U. C. C. P. 142.
 
 THE SOURCES OF OUR LAW. 113 
 
 Ferguson v. Gibson (c) follows the above authorities 
 
 c? * ' 
 
 without discussing whether the Act is in force or not." 
 
 The whole matter came finally before the Court of 
 Appeal for Ontario in the case of Whitby v. Liscombe (d). 
 The opinions delivered by the eminent judges who decided 
 the case show the same marked difference of opinion as was 
 apparent in the early case a decided difference in principle 
 although the judgment of the court was unanimous that 
 the statute is in force in Ontario, because all agreed in hold- 
 ing that the legislative recognition of its binding force here 
 (particularly since 1845) was sufficient to incorporate it 
 amongst the laws of Ontario (e). Chief Justice Draper 
 expresses a clear opinion that the provincial statute 32 
 Geo. III. c. 1, was sufficient, per se, to introduce the 
 Mortmain Acts, and from his language it might even be 
 argued that he considered the question of applicability not 
 open : " The question before us is whether our legislature 
 have not made it part of our laws ; and but for the case of 
 Attorney-General v. Stewart, I should never have enter- 
 tained a doubt on this point." And again, referring to the 
 English laws as to the poor and to bankruptcy, and another 
 statute subsequently excluded, he says : " The reason given, 
 that the provisions of those Acts were inapplicable to this 
 province, is virtually one of the reasons for Sir W. Grant's 
 judgment in the Attorney-General v. Stewart; but our 
 legislature evidently did not doubt that their first Act had 
 introduced both these British statutes into Upper Canada." 
 On the other hand, Mr. Justice afterwards Chief Justice 
 Moss, agreed fully with the view expressed by Robinson, 
 C.J., in the early case, that by the effect of our provincial 
 Act 32 Geo. III. c. 1, per se, the Act in question was not in 
 force. Reviewing that case, he said : 
 
 (c) 22 Grant, 36. 
 (rf) 23 Grant 1. 
 
 (e) Only on this ground is Reg. v. Gamble and Boulton, 9 U. C. Q. B. 
 54H. supportable. See notes to B. N. A. Act, ss. 18 and 69 post. 
 CAN. Cox. 8
 
 114 THE CANADIAN CONSTITUTION. 
 
 " The question of principal interest in this case is whether 
 the statute commonly called the Mortmain Act is in force in 
 this province. More than thirty years ago the Court of Queen's 
 Bench, upon full consideration, held that it was in force. Since 
 that time, in express deference to that authority, the Courts of 
 Common Law and the Court of Chancery have decided many cases, 
 and many devises and bequests to charitable uses, otherwise 
 unimpeachable, have been adjudged invalid. The point is now for 
 the first time raised in a Court of Appeal. So many estates have 
 been administered and so many titles have been acquired upon 
 the assumption of the correctness of a decision which had been 
 followed so often by courts of co-ordinate jurisdiction, and 
 remained so long unchallenged on appeal, that its reversal would 
 be attended with serious consequences. Under such circum- 
 stances, it would deserve consideration whether the case was not 
 a fitting one for the application of the rule sttire </<r/.s/.s. 
 If the only question was whether Doe Anderson v. Todd was 
 well decided, I should hesitate long before holding in the affir- 
 mative. The points then presented for determination were, 
 whether the provincial statute 32 Geo. III. c. 1, should have 
 been judicially interpreted to have the effect of introducing the 
 Mortmain Act, and, if not, whether subsequent legislation had 
 effected a change in the law. Robinson, C.J., was of opinion 
 that but for subsequent legislative exposition, the true interpre- 
 tation of the statute of Geo. III. excluded the Mortmain Act, 
 while the other members of the court seemed to have enter- 
 tained a different view. The reasoning of the Chief Justice 
 appears to me to be unanswerable at least, if the decision of 
 Sir Wm. Grant, in Attorney-General v. Stewart, is correct, 
 and, apart from its intrinsic force, it would be hopeless to 
 impugn this, after its approval by the House of Lords, in Whicker 
 v. Hume ff). It was attempted in the argument of this appeal 
 to distinguish Doe Anderson v. Todd, and withdraw it from the 
 application of the principles enunciated in the two English 
 cases. I do not think the attempt was attended with success. 
 It proceeded upon the differences in the terms employed in intro- 
 ducing the laws of England into this province, and into Grenada 
 and New South Wales respectively. Our statute enacted that 
 
 (f) 16 Jur. 39.
 
 THE SOURCES OF OUR LAW. 115 
 
 ' iii all matters of controversy relative to property and civil^ 
 rights, resort should be had to the laws of England, as the rule 
 jor the decision ot the same. In Grenada, justice was to be 
 administered, as near as might be, according to the laws of 
 England. In New South Wales, the laws in force in England, 
 ' so far as they can be applied within the said colonies,' were 
 introduced. Sir Win. Grant held that ' the question of whether 
 the statute was in force in Grenada depended upon this consid 
 eration whether it be a law of local policy, adapted solely to the 
 country in which it was made, or a general regulation ot 
 property, equally applicable to any country in which it is by 
 the rules of English law that property is governed ; ' and, 
 having discussed the scope of the statute, he decided it to be 
 local in its character, and not a general regulation of property. 
 In Whicker v. Hume, Lord Cranworth emphatically says: 'With 
 regard to this statute of Mortmain, ordinarily so called, I cannot 
 have the least doubt that that cannot be regarded as applicable 
 to the colonies.' This being the construction placed t npon the 
 statute by such high authorities, the respondents were forced to 
 the broad construction, that nil the laws of England relative to 
 property and civil rights, whatever might be their historical 
 origin, or however political their character, or however clearly 
 they grew out of local circumstances, or were meant to have a 
 local operation, were introduced. The observations of the Chief 
 Justice, in Doe Anderson v. Todd, seem to me to effectually dis- 
 pose of this proposition. As he points out, the language of the 
 statute does not expressly introduce the whole civil law of 
 England, but seems to be limited to the purpose of giving the 
 principles of the English law as the rule of decision for settling 
 questions, as they might arise, relative to property and civil rights. 
 If this be the correct view, I cannot perceive that any substan- 
 tial distinction can be founded upon the differences of language 
 to which I have referred." 
 
 He, however, doubted the propriety of the decision in that 
 ca.se, as founded on too slight a legislative recognition of 
 the Imperial Act as being in force here, and concluded his 
 opinion by saying : " It is upon the ground of this $uJ>- 
 legislative recognition that I wish to place my
 
 116 THE CANADIAN ( '< >N.vni I'TION. 
 
 judgment, that the statute must now be held to be in force 
 in this province " (#). 
 
 Stark v. Ford (h) is the rather amusing record of an 
 unsuccessful attempt to subject a Canadian judge to the 
 penalties provided in the Act " for abolishing the Court of 
 Star Chamber," 16 Car. I. c. 10. Upon examination of the 
 statute, Robinson, C.J., points out that its whole scope was 
 to forever put a stop to the unconstitutional usurpation of 
 judicial functions by the Court of Star Chamber, and 
 ridiculed the idea of extending it to a judge alleged to have 
 acted illegally in the exercise of his assigned duties. 
 
 At the date of the passing of the Provincial Act, 
 32 Geo. III. c. 1, the law of marriage both as to the 
 forms to be observed, and as to the disabilities which would 
 prevent its solemnization in certain cases in force in Great 
 Britain, was regulated by the statute commonly known as 
 Lord Hardwicke's Act, 26 Geo. II. c. 33. Since 1792, many 
 provincial statutes have made provisions on many, if not 
 most, of the matters legislated upon by Lord Hardwicke's 
 Act(/); but, as late as 1887, the latter statute has Kvn 
 expressly recognized as introduced as a whole by our 
 first provincial Act. The reasons given for so considering 
 it in force, constitute the material matter for us in this 
 enquiry, and by way of contrast we may note the reasons 
 given for holding as has in 1889 been finally held that 
 section 11 of the Act was never introduced into our law. 
 
 "That section rendered such marriage by license" i.e., 
 of a minor without consent of parent or guardian " absolutely 
 void, without any sentence of the court ; and length of cohabita- 
 
 (g) See Smith v. Methodist Church, 1H O. R. 199 ; Butland v. 
 Gillespie, 16. 486. 
 
 (h) 11 U. C. Q. B. 3l!3. 
 
 () The whole matter has never been taken up by our legislatures 
 because of the differences in religious view on the question in Upper and 
 Lower Canada respectively ; and note the division of the subject between 
 the Dominion and the provinces under the B. N. A. Act, s. 91, s-s. 2G, 
 and s 92, s-s. 12.
 
 THE SOURCES OF OUR LAW. 117 
 
 tion and birth of children afforded no gi-ound of exemption (./') ; 
 and consent subsequently given would not avail to validate. 
 This rigorous law was soon after repealed in England, and no 
 judge has regarded with favor the proposal to hold it applicable 
 to this country. Judicial opinion as reported is all the other 
 way." Per Boyd, C., in Lawless v. Chamberlain (/.-). " Whether 
 the llth section of the Act containing that provision was ever 
 part of the law of this province, by virtue of our adoption of the 
 Jaw of England, may fairly be questioned. If it ever was, it 
 must be so still, as we have already mentioned, because the 
 English statute repealing it is of too modern a date to be binding 
 upon us by virtue of our statute 32 Geo. III. c. 1, and it has no 
 relation to the colonies ; but it would be difficult to satisfy our- 
 selves, we think, that it ever has been in force in Upper Canada, 
 on account of the impossibility of applying the 12th clause to 
 the condition of things here. We could not therefore have the 
 enactment respecting the consent of parents in its integrity, 
 and as it would work great hardship to have the llth clause in 
 force without the 12th or any other provision as a substitute for 
 it, we shall, perhaps, if we find it necessary in any case to 
 determine the point, find it right to determine that neither of 
 these clauses could be taken to foim part of our law of marriage 
 under our own adoption of the law of England by 32 Geo. III. 
 c. 1." PIT Robinson, C.J., in Reg. v. Roblin (/). 
 
 The reasons given on the other hand for holding the 
 Act, other than the clauses in question, to be introduced 
 here, will appear in the following passages extracted from 
 the opinions of Robinson, C.J., Esten, V.C., and Armour, 
 C.J., in three cases in which those judges had the question 
 under consideration : 
 
 " When by our statute 32 Geo. III. c. 1, the provincial legis- 
 lature adopted the law of England as the rule of decision 
 . . they adopted to the extent mentioned, not merely the 
 common law of England, but also the statute law, with the 
 
 (j) Johnstone v. Parker. 3 Phill. 41. (A-) 18 O. R. at p. 309. 
 
 (?) 21 U. C. Q. B. at p. 35(3. See Reg. v. Seeker. 14 U. C. Q. B. 604, 
 and Reg. v. Bell, 15 U. C. Q. B. 287.
 
 118 THE CANADIAN CONSTITUTION. 
 
 exceptions specified in the Act, and with other exceptions, though 
 not specified, of such laws as are clearly not applicable to the 
 state of things existing in the colony, of which various examples 
 might be cited. 
 
 " We consider that our adoption of the law of England to 
 the extent and with the exceptions just mentioned, included the 
 law generally which related to marriage. The statute 26 Geo. II. 
 c. 33, being in force in England when our statute was passed, 
 was adopted, as well as other statutes, so far as it consisted with 
 our civil institutions, being part of the law of England at that 
 time ' relative to civil rights ' ; that is, to the civil rights which 
 an inhabitant of Upper Canada may claim as a husband or wife, 
 or as lawful issue of a marriage alleged to have been solemnized 
 in Upper Canada. 
 
 " The legislature of Upper Canada have so regarded this 
 matter, as appears by the statute 33 Geo. III. c. 5, sees. 1, 3 and 
 6 ; 38 Geo. III. c. 4, s. 4 ; and 11 Geo. IV. c. 36, in which they 
 have recognized the English Marriage Act, in effect, though not 
 in express terms, as having the force of law here in a general 
 sense, and controlling the manner in which marriage is to be 
 solemnized." Per Robinson, C.J., in Regina v. Roblin (in). 
 
 " No doubt the Act of the 32nd of the late King, introduced 
 all the law of marriage as it existed in England at that date, 
 excepting, perhaps, some clauses of the 26 Geo. II. c. 33. It 
 introduced the Acts 25. Hen. VIII. c. 22 ; 28 Hen. VIII. c. 7 & 
 16 ; and 32 Hen. VIII. c. 38, so far as they remained in force, 
 and so much of the canon law as had been adopted by the law 
 of England." Per Esten, V.C., in Hodgins v. McNeil (n). 
 
 "The legislature of this province has repeatedly recognized 
 that Act as being in force in this province, by from time to 
 time passing laws modifying and qualifying its provisions. See 
 33 Geo. III. c. 5 ; 38 Geo. III. c. 4 ; 2 Geo. IV. c. 11 ; 11 Geo. 
 IV. c. 36. 
 
 " Having regard to the provisions of the Acts 32 Geo. III. 
 c. 1, and 40 Geo. III. c. 1, to the cases above referred to, and to 
 the recognition thereof by the legislature of this province, as 
 above mentioned, I am clearly of opinion that the Act 26 Geo. 
 II. c. 33, was brought into force in this province by the Acts 
 
 (m) 21 U. C. Q. B. at p. 355. (u) 9 Grant, at p. 309.
 
 THE SOURCES OF OUR LAW. 119 
 
 32 Geo. III. c. 1, and 40 Geo. III. c. 1, so far as its provisions 
 were applicable to the circumstances of this province, and were 
 not inconsistent with the civil institutions thereof ; and that, at 
 all events (which is all that I am concerned with in this case), 
 the provision thereof making all marriages which should be 
 solemnized without publication of banns or license of marriage 
 from a person or persons having authority to grant the same, 
 first had and obtained, null and void to all intents and purposes 
 whatsoever, was brought into force. 
 
 Unless this provision was so brought into force in this pro- 
 vince, there is no provision in this province making void a 
 marriage so solemnized, and the fact that the legislature of this 
 province has never deemed it necessary to make any such pro- 
 vision, is cogent evidence that it considered it unnecessary to do 
 so ; because this provision of 26 Geo. II. c. 83, was treated by it 
 as bein^ in force in this province." Per Armour, C. J., in O'Con- 
 nor v. Kennedy (o). 
 
 From the above cases it will be seen that in reference 
 to Lord Hardwicke's Marriage Act the same principles 
 were invoked as in reference to the Mortmain Acts. In 
 each case the court considered : 
 
 1st. Is the British statute one which can be considered 
 a^ so applicable to the circumstances of this colony, that the 
 legislature must have intended to introduce it by the in- 
 trinsic effect of their Act 32 Geo. Til. c. 1 ! This question, 
 in the case of the Mortmain Acts, does not seem to have 
 been unanimously answered by Canadian, judges, but the 
 weight of authority would appear to be for a negative 
 answer in conformity, as will have been noticed, with 
 English decisions. As to the Marriage Act of Lord Hard- 
 wicke, there seems to have been 110 difference of opinion 
 all agreeing in the result arrived at, in favor of an affirma- 
 tive answer, except as to the llth and 12th clauses. 
 
 2nd. Has there been subsequent legislative recognition 
 by the provincial parliament, of the binding force here of 
 the Act in question ? As to both Acts, the answer has been 
 
 (o) 15 O. R. at p. 22.
 
 120 THE CANADIAN CONSTITUTION. 
 
 unanimously in the affirmative. To these consideration* 
 may be added : 
 
 3rd. Have the decisions of provincial courts proceeded 
 so clearly upon one line, and for such a length of time, as 
 to have established a rule of law in regard to dealings with 
 property, or in regard to the status of particular classes of 
 persons ? In the later cases there can be no doubt this 
 consideration operated most powerfully. In Whitby v. 
 Liscombe (p), in 1876, Mr. Justice Burton uses this^ 
 language : " Where solemn determinations which establish 
 a rule of property have been acquiesced in for so long a 
 period, a court even of last resort should require very strong 
 grounds for interfering with them " ; and Mr. Justice 
 Patterson, speaking of Doe Anderson v. Todd, says : " It 
 has been acquiesced in too long, and has for too long a 
 period governed titles to land in this province to be now 
 interfered with by any authority short of legislative enact- 
 ment "; and we have already quoted the opinion of Mr. 
 Justice (afterwards Chief Justice) Moss, in which the same 
 rule of expediency is expressed in those polished periods 1 . y 
 which his written opinions are always characterized. 
 
 The case Hesketh v. Ward (g), brings into prominence 
 another question proper for consideration, in deciding 
 whether or not a particular Imperial Act (we are of course 
 dealing with Acts in force in England on 15th October, 
 1792) is in force in Ontario, namely, the question Is the 
 Act one of general application in England, or is it local, in 
 the sense of being confined to some particular locality or 
 local institution in England ? Upon a review of the eases 
 already mentioned, this consideration will appear to have 
 been always present to some extent, but in Hesketh v. 
 Ward it was the real point for decision. The Acts in 
 question there, were 1 Anne (st. 2) c. 6, and 5 Anne, c. 9, 
 making certain provisions in reference, amongst other 
 matters, to escape warrants. Richards, C.J., after a careful 
 
 (p) 23 Grant, 1. ('/) 17 U. C. C. P. 667. See ante, p. 93.
 
 THE SOURCES OF OUR LAW. 121 
 
 consideration of the first-mentioned statute, decided that 
 it was not part of our law, because " passed with reference 
 to the peculiar position of the officers of the prisons " the 
 Marshalsea and the Fleet " to which it referred, and the 
 evils recited in the preamble, which state of things has not, 
 and is not likely to exist in this country " ; and again 
 because " in terms it is only applicable to the two English 
 prisons named in it ; to remedy evils which the preamble 
 .... refers to as peculiar to persons of the descriptions 
 tl\ere referred to, and as to which no apparent necessity 
 exists in this country." The dissenting opinion of Mr. 
 Justice Wilson (afterwards Chief Justice Sir Adam Wilson) 
 is not a dissent in principle, but a joiner of issue on the 
 facts. After a lengthy historical discussion, showing his 
 usual painstaking research, he points out that, " Although 
 it may have a limited application in England to the two 
 special and peculiar prisons of the courts, it is nevertheless 
 a general law, and a beneficial one, and an amendment of 
 the law, and as there are no special prisons of the courts 
 here, but all the gaols of the province are equally the 
 prisons of the court, the statute, being such general law by 
 the declaration of the statute itself, has an operation 
 here upon all the prisons of the courts " (r). 
 
 In a series of cases it was held that the provisions of 
 14 Geo. III. c. 78, relating to the liability of persons upon 
 whose premises a fire accidently starts, for damages result- 
 ing" from its spreading to the premises of another, are part 
 of our law, because they were part of the general law of 
 England, introduced by 32 Geo. III. c. 1, and were not of 
 local application there in the sense before referred to (.s). 
 
 (>) On this principle, many English statutes referring to, e.g., the 
 courts "at Westminster" have been held to be part of general English law, 
 and as such in force here in relation to our Superior Courts. See 43 Eliz. 
 c. 6, and 13 Car. II. c. 2, as to costs in certain cases, and note the New- 
 Brunswick decisions on this point, ante, p. 93. 
 
 () Gaston v, Wald, 19 U. C. Q. B. 586; Stinson v. Pennock, 14 
 Grant, 604; Carr v. Fire Ass., 14 O. K. 487; C. S R. v. Phelps, 14
 
 122 THE CANADIAN CONSTITUTION. 
 
 The cases heretofore considered have had relation to 
 the effect of 32 Geo. III. c. 1, and the phraseology employed 
 in that Act, has been relied on in support of the contention 
 for a limited introduction of the English statutory law 
 relating to property and civil rights. We now turn to the 
 Provincial Acts, by which the English criminal law was 
 introduced into this province, and the limits of its applica- 
 bility defined. As has been already noticed, the Quebec 
 Act, 1774, (14 Geo. III. c. 83), while re-introducing the law 
 of Canada i.e., the French law in force at the conquest 
 into the Province of Quebec, as described by the Act, pro- 
 vided for a continuation therein of the criminal law of 
 England. 
 
 " XL And whereas the certainty and lenity of the criminal 
 law of England, and the benefits and advantages resulting from 
 the use of it, have been sensibly felt by the inhabitants from an 
 experience of more than nine years, during which it has been 
 uniformly administered ; be it, therefore, further enacted by the 
 authority aforesaid, that the same shall continue to be adminis- 
 tered, and shall be observed as law in the province of Quebec, as 
 well in the description and quality of the offence as in the 
 method of prosecution and trial, and the punishments and forfei- 
 tures thereby inflicted, to the exclusion of every other rule of 
 criminal law or mode of proceeding thereon, which did or might 
 prevail in the said province before the year of our Lord 1764 ; 
 
 S. C. B. 132. For other cases in Upper Canada (Ontario) on this subject, 
 see Torrance v. Smith, 3 U. C. C. P. 411, a?id Hearle v. Hoss, 15 U. C. 
 Q. B. 259, in which 26 Geo. III. c. 86, exempting vessel owners from 
 liability for loss through fire, was held to be part of our law ; Reg. v. Mc- 
 Cormick, 18 U. C. Q. B. 131 Nullum Tempus Act (9 Geo. III. c. 16), in 
 force here ; Dunn v. O'Rielly, 11 U. C. C. P. 404, in which the clauses 
 in 22 Geo. II. c. 4G, relating to attorneys, were held to be in force here, 
 although other parts of the Act inapplicable (a veritable witches' cauldron, 
 this!); Reg. v. Row, 14 U. C. C. P. 307, in which 28 Geo. III. c. 49, s. 4 
 (enabling a magistrate for a county-at-large to sit within a city, itself a 
 county, within the boundaries of the county-at-large), was held not to be 
 in force, being local in its character; Bleeker v. Myers, 6 U. C. Q. B. 
 134; Hart v. Meyers, 7 U. C. Q. B. 416 ; Garrett v. Roberts, 10 O. A. R. 
 050 18 Eliz. c. 5, as to suits by informers, in force here.
 
 THE SOURCES OF OUR LAW. 
 
 123 
 
 everything in this Act to the contrary thereof in any respect 
 notwithstanding ; .subject, nevertheless, to such alterations and 
 amendments as the Governor, Lieutenant-Governor, or (Jom- 
 mander-in-Chief for the time being, by and with the advice and 
 consent of the legislative council of the said province, hereafter 
 to be appointed, shall from time to time cause to be made therein 
 in manner hereinafter directed " 
 
 The Constitutional Act of 1791, while dividing the Pro- 
 vince of Quebec into Upper and Lower Canada, left each 
 province with the law as it stood under the Act of 1774 
 (except of course as altered by provincial ordinances), but 
 gave each province a legislature empowered to make laws 
 for the peace, welfare and good government thereof. What 
 Upper Canada would do, was pretty well understood. As d 
 was anticipated, she annuled the old French law, and 
 adopted the law of England as the rule for decision of all 
 controversies relative to property and civil rights ; and 
 she not merely adhered to the criminal law of England, 
 as introduced by the proclamation of 1763, and continued 
 by the Quebec Act, above quoted, but she went further, 
 and by 40 Geo. III. c. 1, enacted that "the criminal law of 
 England as it stood on the 17th day of September, A.D. 
 1792, shall be, and the same is herebj 1 - declared to be, the 
 criminal law of this province." 
 
 Under this statute, every Act of the British parliament 
 in force as part of the general criminal law of England on 
 the 17th day of September, 1792, was introduced into 
 Upper Canada. The date in reference to which the 
 English criminal law should be considered in force was 
 thus brought forward by 18 years, and under it, as well as 
 under the Quebec Act of 1774, the enquiry proper under 
 the common law as to the applicability of an Imperial Act 
 to the circumstances of a colony was eliminated, and the 
 only enquiry is Is the Imperial statute local in the sense 
 we have mentioned ? If not, it is part of the law of Upper 
 Canada. 
 
 
 
 '
 
 124 THE CANADIAN CONSTITUTION. 
 
 We must, however, again repeat that we are dealing in 
 this chapter with English statutes of no express application 
 to the colonies, and the Provincial Act, 40 Geo. III. c. 1 
 applies only to such statutes (t). Imperial Acts which 
 proprio vigore, apply to us, are treated of elsewhere. With 
 this repeated caution, we proceed to consider some Canadian 
 authorities upon the question of the introduction of English 
 criminal law into Upper Canada (y,). 
 
 In Beasley, qui tarn, v. Cahill (v), it was held that the 
 Imperial statute, 32 Hen. VIII. c. 9, against buying disputed 
 titles, was in force in Upper Canada. It was contended 
 that the statute was obsolete, even in England, and 
 Robinson, C.J., remarked that this seemed to him rather 
 singular, as the reasons assigned in the preamble of the Act 
 for its passing, were reasons sufficient in all times : but 
 notwithstanding that it seemed to have remained so long a 
 dead-letter in England, he held the Act to be in force in 
 Upper Canada, because " it constitutes part of the criminal 
 law of England, which we have adopted by tin express 
 statute, introducing it as it stood in England on the 17th 
 September, 1792" (w). 
 
 In Regina v. Mercer (x), certain English Acts against 
 the buying and selling of offices were considered (5 & 6 
 Edward VI. c. 16, and 49 Geo. III. c. 126). The latter Act 
 it will be noticed, is of a date subsequent to 1792, and does 
 not therefore fall within our present enquiry ; it was how- 
 ever held to be of express colonial application, and there- 
 
 (<) Bank of U. C. v. Bethune, 4 U. C. Q. B. (O. S.) 165 ; see ante, p. 69. 
 
 (M) Since the above was written, the ' Criminal Law " of Canada has 
 been codified, and (it is understood) all necessity for reference to English 
 criminal law obviated. As, however, the " criminal law " over which the 
 Dominion parliament has legislative power, does not cover the whole 
 field of penal legislation, what we have written may still be applicable in 
 a few cases even in Ontario. 
 
 (r) 2 U. C. Q. B. 320. 
 
 (w) And see Purdy q. t. v. Ryder, Tay. 236. 
 
 (x) 17 U. C. Q. B. 602 ; see also Foote v. Bullock, 4 U. C. Q. B. 480, 
 and Reg. v. Moodie, '20 U. C. Q. B. 389.
 
 THE SOURCES OF OUR LAW. 125 
 
 Fore in force here. The Act of Edward VI. was unani- 
 mously held to be part of our law. Robinson, C.J., adverts 
 to the distinction between the two provincial Acts, 32 Geo. 
 III. and 40 Geo. III., in the following language : 
 
 "It is denied that this statute has any force in Upper 
 Canada. If that point depended merely ou the question whether 
 it is included in our adoption of the law of England, under our 
 
 statute 32 Geo. III. c. 1, a good deal might be 
 
 urged against the application of the statute It 
 
 is more to the purpose, I think, to consider whether 5 & 6 
 Edward VI. c. 16, should not be held to be in force here under 
 our adoption of the criminal law of England by 40 Geo. III. 
 c. 1, which enacted that the criminal law of England as it 
 stood on the 17th of September. 1792, shall be, and it was 
 thereby declared to be, the criminal law of Upper Canada. I 
 think it must be held that the statute formed part of the criminal 
 law of England which was thus introduced." 
 
 McLean and Burns, JJ., were equally free from doubt. 
 
 So likewise, in a number of cases, the English Lottery 
 Acts were held to be in force in Upper Canada ; Croiiyn v. 
 Widder (y) being the leading case. Both in this case and 
 Regina v. Mercer, above noted, it was urged that the 
 statutes were not criminal statutes, but with the considera- 
 tion which led the court in each instance to hold these Acts 
 to be part of the criminal law of England, we have here 
 nothing to do. It is more to our purpose to observe that 
 having held them to be part of the English criminal law, 
 the court applied them as part of the criminal law of 
 Upper Canada, without entering upon any inquiry as to 
 their adaptation or want of adaptation to the circumstances 
 of Upper Canada, 
 
 And in Reid v. Inglis (z), Draper, C.J., speaking of the 
 Act 1 Win. &: Mary, c. 18, "against disturbers of religious 
 
 (y) 16 U. C. Q. B. 356, and seeCorby v. McDaniel, ib. 378. In earlier 
 cases referred to in these, the Acts were not questioned. 
 (z) 12 U. C. C. P. 191.
 
 126 THE CANADIAN 0< INSTITUTION. 
 
 meetings," said : "I see no reason for holding that the Act 
 is not in force here:" from which we would infer that, in 
 his opinion, all English criminal statutes in force in Eng- 
 land in 1792, are priiim fucie in force here (.). 
 /' And now even at the risk of a charge of undue repeti- 
 tion we must again point out, that in any case, the ques- 
 tion whether or not any particular British statute of date 
 anterior to 1792, has the force of law in Ontario, will 
 depend, in the first place, upon the absence of colonial 
 legislation Canadian or Provincial, as the case may be 
 on the subject matter involved. If there is none such; then 
 the principles we have enumerated in the cases we have 
 reviewed, will have to be considered, and may be sum- 
 marized shortly by saying : 
 
 A* to the criminal IAIW, no question can arise, save 
 the one question Is the act one of general English appli- 
 cation ? If so, it is, in the absence always of colonial legis- 
 lation, as above specified, part of our law under 40 Geo. 
 III. c. 1. 
 
 A* to property aiul ciril ri'/lttx, the following points 
 must be considered : (1) Is the Act one of general English 
 application in the sense we have mentioned ? (2) If so, is 
 it an Act properly applicable to the circumstances the 
 commercial, religious, and social environments of this pro- 
 vince ? (3) If not so applicable, or if the matter is one of 
 reasonable doubt, has there been a legislative recognition 
 of the Imperial Act, as being in force here ? (4) Have the 
 decisions of the courts proceeded so clearly upon one line, 
 as to have established a rule of property or xhitv.* in the 
 province '. 
 
 It will be seen that, owing to the recognition by Upper 
 Canadian judges of the propriety of making an inquiry as 
 
 (a) See Sheldon v. Law, 3 U. C. Q. B. (O. S.) 85, and Fulton v. James, 
 5 U. C. C. P. 182 (horse-racing) ; Keg. v. Milford, 20 O. R. 306 (9 Geo. 
 II. c. 5, against fortune telling), and Reg. v. Barnes, 45 U. C. Q. B. 276 
 (Lord's Day Act).
 
 THE SOURCES OF OUR LAW. 127 
 
 to the applicability of any Imperial Act to the circum- 
 stances of this province, the principles upon which the 
 decision must rest, in the case of any given statute, are the 
 same (except as to criminal statutes) as those laid down in 
 the decisions of the Nova Scotia and New Brunswick 
 courts, and, as we shall hereafter see, the statutes by which 
 this question is governed in the provinces more lately 
 acquired, expressly make " applicability " the test of their 
 introduction. 
 
 The English authorities upon this subject are suffi- 
 ciently referred to in the extracts taken from the Canadian 
 authorities. As pointed out by Chief Justice Halliburton, 
 in Uniacke v. Dickson (/>), those authorities lay down no 
 very definite principle to guide colonial judges in coming 
 to a decision in this very important matter; and, for this 
 reason, we have gone more elaborately into the authorities 
 hi the older provinces than might seem necessary, so far as 
 those older provinces alone are concerned; but, owing to 
 the comparatively recent dates which have been fixed upon 
 in the lately acquired provinces (c), as the date for the 
 introduction of English law, the questions discussed in 
 this chapter are certain to be of frequent occurrence jn 
 those provinces, and we, therefore, leave this chapter as 
 originally written. 
 
 So far as the province of Ontario is concerned, the 
 matter now stands : 
 
 A* to the law relative to property and civil right* 
 upon R. S. O. (1887) c. 93, in which, after reciting 32 Geo. 
 III. c. 1, the Legislative Assembly of Ontario enacts as 
 follows : 
 
 "1. In all matters of controversy, relative to property and 
 civil rights, resort shall continue to be had to the laws of 
 England, as they stood on the said 15th day of October, 1792, 
 as the rule for decision of the same, and all matters relative to 
 testimony and legal proof in the investigation of fact, and the 
 
 (b) Ante, p. 78. (c) Post, Chap. XIII. et seq.
 
 128 THE CANADIAN CONSTITUTION. 
 
 forms thereof, in the several courts in Ontario, shall continue to 
 be regulated by the rules of evidence established in England, as 
 they existed on the day and year last aforesaid, except so far as 
 the said laws and rules have been since repealed, altered, varied, 
 modified, or affected by any Act of the Imperial parliament still 
 having the force of law in Ontario ; or by any Act of the late 
 province of Upper Canada, or of the province of Canada, or of 
 the province of Ontario, still having the force of law in Ontario, 
 or by these revised statutes. 
 
 " 2. The statutes of Jeofails, of limitations, and for the 
 amendment of the law, excepting those of mere local expediency, 
 which, previous to the 17th day of January, 1822, had been 
 enacted respecting the laws of England, and then continued to 
 be in force, shall be valid and effectual for the same purposes in 
 Ontario, excepting so far as the same have, since the day last 
 aforesaid, been repealed, altered, varied, modified, or affected in 
 the manner mentioned in section 1 of this Act." 
 
 And as to the criminal law upon R. S. C. (1886) 
 c. 144, by section 1 of which it is enacted as follows : 
 
 " The criminal law of England, as it stood o the 17th day 
 of September, in the year 1792, and as the same has since been 
 repealed, altered, varied, modified, or affected by any Act of the 
 parliament of the United Kingdom, having the force of law in 
 the province of Ontario, or by any Act of the parliament of the 
 late province of Upper Canada, or of the province of Canada, 
 still having force of law, or by any Act of the parliament of 
 Canada, shall be the criminal law of the province of Ontario." 
 
 QUEBEC. The position of this province is so entirely 
 unique, that reference to its legal system is of no aid in 
 the other provinces. Its civil law (founded on the "Code 
 Civile" of Napoleon) has since been recast into a provincial 
 code, and no reference to English law is in order in that 
 province in the sense we are now discussing. As to the 
 criminal law, its recent codification obviates any further 
 reference to it.
 
 CHAPTER VI. 
 
 THE PREROGATIVES OF THE CROWN. 
 
 There has been no more fruitful cause of dispute and 
 debate, in reference to the government of the British 
 colonies, than the lack of a proper understanding" of that 
 branch of English law which relates to the " prerogatives 
 of the Crown"; and within a comparatively recent period 
 the same want of appreciation of the essential principles 
 which underlie that law has given rise to notable disputes 
 {) between the executive authorities of the Dominion and 
 of some of the provinces, as to which executive head the 
 Governor-General or Lieutenaiit-Govemor should exercise 
 the prerogatives in certain cases. And, in truth, this lack 
 of a proper grasp of the situation is not much to be won- 
 dered at : and, for this reason, that the authorities on this 
 branch of law (b) so mix statements of law with hymns of 
 praise and ascriptions of attributes almost divine to the 
 wearer for the time being of the Crown of England, that 
 . it is a difficult task to disentangle the thread of legal priu- 
 
 (fl) Atty.-Genl. (Can.) v. Atty.-Genl. (Ont.), 19 O. A. B. 31, affirming 
 20 O. R. 222 ; see Lenoir v. Ritchie, 3 S. C. R. 575. The question about 
 the appointment of Queen's Counsel is now standing for argument 
 before the Court of Appeal for Ontario. 
 
 (h) " A topic that in some former ages was ranked among the arcana 
 imperil : and, like the mysteries of the bona dea, was not suffered to be 
 pried into by any but such as were initiated in its service ; because, per- 
 haps, the exertiojj of the one, like the solemnities of the others, would not 
 bear the inspection of a rational and sober enquiry." Blackstone. 
 C-.x. Cos. 9
 
 130 THE CANADIAN CONSTITUTION. 
 
 ciple which runs through it (c). The old juristic saw. 
 y'a.s cxf niijtini. lit! m t^- I'd wi-i'ttm*, has no more forcible 
 illustration than in the history of the struggles of the 
 English people to free themselves from the despotism of 
 government by prerogatives, unearthed by the industry of 
 servile lawyers, and tortured into legal justification for 
 executive oppression. 
 
 It is absolutely necessary to clear up this vagueness and 
 to assign a definite position in English jurisprudence to- 
 that branch of it which relates to these "prerogatives. 
 
 It would be highly interesting, but altogether beyond 
 the scope of this work, to enter upon a philosophic enquiry 
 into the relative antiquity of the legislative and executive 
 departments of government the law-making and the law- 
 executing power or even upon the more limited enquiry 
 into their relative position, historically considered, in Brit- 
 ish jurisprudence. We can merely say, that from time 
 immemorial there has been a clear distinction drawn by 
 jurists between these two departments. If any theory can 
 be said to have legal validity, it would appear that the 
 legal theory of British jurisprudence is, that further back 
 than any court will look there was a l>ody of law a funda- 
 mental law (so to speak) of the constitution (d) by virtue 
 of which both King and Parliament had their legal being, 
 and by it the relations of King to Parliament, and of each 
 to the government of the kingdom, were regulated. This 
 common law of England recognizes only one executive 
 magistrate as exercising authority without commission 
 from any other, within or without the realm. That execu- 
 tive magistrate is the occupant for the time being of the 
 British throne. All other magistrates act "by commission 
 
 (c) Hagarty, C J., speaks of the " boundless crop of venerable learning 
 as to pardon and prerogative." 19 O. A. R. at p. 36. 
 
 (d) " The original right of the kingdom and the very natural consti- 
 tution of our state and policy," JXT Yelverton, art). 2 St. Tr. 483. And see 
 Hale's Hist, of the Common Law : Broom's Const. Law, 2nd ed.. p. 245, 
 et xeq.
 
 PREROGATIVES OF THE CROWX. 181 
 
 from and in due subordination to him" (c). But the power 
 and duty of this executive head is to execute the laws of 
 the realm. He is not above those laws, but under them, 
 being bound by them equally with the meanest of his 
 subjects. It follows, of course, that no commission from 
 him would carry authority to act otherwise than according 
 to law (/). In order to the due execution of the laws, this 
 " common law of England" has invested the executive head 
 with certain attributes and powers, and these are collect- 
 ively known as the " prerogatives of the Crown. The 
 power to alter the law of the land was no part of these 
 prerogatives (y): that power rested exclusively with parlia- 
 ment, the lex ct cniiHiH'tticdu of which is equally part of the 
 common law. Parliament consisted of the King and the 
 three estates of the realm, Lords spiritual, Lords temporal, 
 and Commons : and its enactments were promulgated as 
 the Acts of the King in parliament. In theory, it would 
 seem that defects in the law were supposed to be discovered 
 by the executive head in the course of the administration 
 of public affairs : whereupon, in the exercise of his pre- 
 rogative right, vested in him by the common law, to sum- 
 mon the three estates of the realm, he would cause parlia- 
 ment to assemble in order that the law might (if all agreed) 
 
 (e) Chitty, " On the Prerogatives of the Crown," 4. 
 
 (/) Ib. 5 : Bracton, L. 1, c. 5. 
 
 (g) The power of the Crown, without parliament, to make such laws 
 as might seem proper, for a conquered territory, was no exception in 
 reality ; its exercise was in the nature of executive action. See 
 Clark, Colonial Law, 6, 8 ; Campbell v. Hall, Cowp. 204 ; and the valu- 
 able note (a) to Leith & Smith's Blackstone, at p. 19. "It has been said 
 that, in case of territory acquired by Great Britain by conquest, inas- 
 much as the government is not absolutely monarchical, but the authority 
 to impose laws is vested in the Sovereign conjointly with the two Houses 
 of Parliament, the King therefore alone can exercise no prerogative right 
 to impose such laws as he pleases, and consequently that the mode . . 
 by which the British laws were introduced into Canada after the Treaty 
 of Paris was of no effect. See the opinion of C. J. Hey, 2 L. C. Jur., 
 appx. in Wilcox v. Wilcox, and L. C. Jur., vol. 1, 2nd part, pp. 38-48. See 
 also the various judgments in Stuart v. Bowman, 2 L. C. R., and in appx. 
 to 2 L. C. Jur." See also Forsyth, 12, ct seq.
 
 132 THE CANADIAN CONSTITUTION. 
 
 be altered and the defect remedied. Parliament, however 
 once assembled, might address itself, not merely to the alter- 
 ation desired, but to the alteration of the law upon other, 
 matters : and the other branches of parliament, or either of 
 them, might bargain for the latter as the price of the 
 former. In any case, any and every alteration in the law 
 agreed upon by the King and the three estates was there- 
 after part of the law, to the execution of which the power 
 and duty of the King was limited. As it is sometimes, but 
 not very intelligibly, expressed, the King's authority, as 
 executive head of the nation, is subordinate to his authority 
 as citnt rfiiri'ix parliamcrtti (h). But while parliament 
 may enact laws has enacted many laws even with refer- 
 ence to the prerogatives of the Crown, their extent, and the 
 mode of exercising them, still, unless parliament goes to 
 the full extent of law-making in any given case, it cannot 
 weaken, in the slightest degree, the legal effect of the 
 exercise by the Sovereign of a prerogative right attributed 
 to him by the common law : and this legal effect is what 
 the older writers particularly notice. 
 
 So careful, indeed the old writers put it is the com- 
 mon law in its provisions for the due execution of the laws 
 of the land : so careful to provide a check against any 
 legislative hindrance to their smooth and expeditious 
 working, that the executive magistrate the Crown is l>y 
 the common law, and for the very purpose of protecting 
 the royal executive authority (i), a constituent branch of 
 parliament: and the consent of the Crown is absolutely 
 essential to the validity of all Acts. This right to give or 
 withhold consent, has been treated as itself one of the pre- 
 rogatives of the Crown the cover and protection to all 
 the other prerogatives and upon its exercise the law recog- 
 
 (h) See Steph. Comm. Vol. II. p. 340, as to the proper meaning of this 
 phrase. 
 
 (i) Chitty, On the Prerog. of the Crown, p. 3 ; see ante, p. 33, for an 
 extract from Gov. Cornwallis' commission, disclosing this reason in frank 
 terms.
 
 PREROGATIVES OF THE CROWN. 133 
 
 nizes no limitations. While from time to time parliament 
 has withdrawn certain prerogative rights from the Crown ; 
 has, in regard to others, required the concurrence of some 
 other person or body of persons in order to their legal 
 exercise; and in many ways has fettered their exercise by\ 
 conditions as to time, place and manner of exercise ; such 
 action has always had the consent of the Crown, no matter 
 how unwillingly, or under what stress of circumstances, 
 given ; and this supreme prerogative -for prerogative it may 
 be called of giving or withholding such consent, no power 
 short of revolution can ever take away (j). This is the 
 aspect of the question which is pre-eminently apparent in 
 the law books, and it is the utter inadequacy of this one- 
 side-of-the-story mode of treatment which makes this 
 branch of the law so unintelligible to the ordinary student. 
 He is haunted by the idea that what he is reading is largely 
 mere antiquarianism ; and yet, the statements made are 
 statements of legal principles which he cannot gainsay. 
 The points of importance to a proper understanding of this 
 branch of jurisprudence, are so slurred over, that it is only 
 by patient spelling out of what appear to be treated as 
 minor subdivisions that we can reach a satisfactory solu- 
 tion of the problem. Asa matter of history, parliament 
 perhaps we should say the House of Commons has always 
 found means to secure the consent of the Crown to the 
 enactment of laws on which its heart was bent ; and, 
 leaving aside for a moment the legal necessity for such con- 
 sent, let us work out the other legal principles to which we 
 have alluded. 
 
 Back of legal memory, stands the common law of Eng- 
 land. " The law makes the King " (/) ; the attributes and 
 powers which attach to his office, as executive head of the 
 
 (j) See notes to sec. 2 of the B. N. A. Act, post, for a reference to the 
 method adopted to get over this difficulty, in the case of the Bill of 
 Rights 1 Wm. & Mary, st. 2, c 2. 
 
 (k) Bracton, L. 1, c. 8; Hale, Hist, of the Common Law; Broom, 
 Const. Law, 248.
 
 184 THE CANADIAN CONSTITUTION. 
 
 nation, are part of that common law ; are defined and 
 limited l>;j that law, and are in aid of the executive~"(). 
 Over against, or at least distinct from the King, stands 
 Parliament. It is the creation of that same common 
 law (in}, and to parliament alone does that common law 
 entrust the power to alter the law of the land, whether 
 common or statutory, upon any and every conceivable 
 subject matter. Parliament, therefore, can alter the lex 
 prerogative* (); *ind it needs no very extensive knowledge 
 of English history to appreciate that the House of Commons 
 never relinquishes what it gains of control over the execu- 
 tive. The history of English legislation is the history of 
 curtailment of prerogatives, and particularly of those pre- 
 rogatives in the exercise of which any large amount of 
 discretion was open to the Crown, as to time, place and 
 manner of exercise. 
 
 At this stage, some attempt should perhaps be made to 
 classify the "prerogatives of the Crown" as they are 
 enumerated in the works of such writers as Hale, Black- 
 stone, and Chitty. One large principle of division appears 
 in the classification of prerogatives into attributes, and 
 prerogatives proper. The attributes of sovereignty, (or 
 pre-eminence), perfection, and perpetuity, find expression 
 in the sayings : " The King is properly the sole executive 
 magistrate" (o); "The King can do no wrong"; and 
 'The King never dies." With these legal principles, and 
 their position in English jurisprudence, we need not now 
 concern ourselves, as they are passive. 
 
 (/) Broom, 316. 
 
 (m) Steph. Comm. (5th ed.) vol. II. p. 335. 
 
 (M) So far, indeed, does the power of parliament over the executive 
 extend, that it can not only deal by legislation, with the lex prerogativa, 
 but it can " make laws and statutes of sufficient force and validity to 
 limit and bind the Crown and the descent, limitation, inheritance, nud 
 government] thereof ," at least the statute. G Anne, c. 7, adjudges traitors, 
 all who affirm the contrary. 
 
 (o) Chitty, p. 4.
 
 PREROGATIVES OF THE CROWN. 135 
 
 The prerogatives proper represented, according to the 
 common law, powers of action in connection with every 
 department of executive government, administrative and 
 judicial. Even those prerogative powers in connection 
 with the assembling, proroguing and dissolving of parlia- 
 ment were in aid of the executive (p). CHITTY divides 
 these prerogatives proper the line of division is not very 
 t;xact into: 
 
 \ 1 . Prerogatives in reference to foreign xtate* and ajfa i /*, 
 such as the sending of ambassadors, the making of treaties, 
 making war and peace, and the various acts of executive 
 government necessary in connection with these various 
 mutters (q). 
 
 \^ 2. Prerogatives arising from the recognized position 
 of the Crown as Head of t1u> Cl/crcli, with which we hi 
 Canada need not perhaps trouble ourselves (r). 
 \ 3. Prerogatives in connection with the assembling, pro- 
 roguing, and dissolving of parliament (). 
 \ 4. Prerogatives annexed to the position of the Crown 
 as the fount (tin of justice (/); such as the creation of 
 courts, the appointment of judges and officers in connection 
 tlierewith : the pardoning of offenders, and the issuing of 
 proclamations. 
 
 ^ 5. Those prerogatives, which flow from the position of 
 the Crown as the fountain of honour, such as the bestow- 
 ing of titles, franchises, etc. (,). 
 ^ (j. The superintendency of commerce (v). 
 
 (p) See ante, p. 131. 
 
 (q) Chitty, 39. These are all matters which, for obvious reasons, are 
 still treated as matters of " Imperial " concern, and over which therefore 
 colonial legislatures have no legislative power. See Chap. IX. post. 
 
 (r) Chitty, 50. See in re Lord Bishop of Natal, 3 Moo. P. C. (N. S.) 
 115 ; Forsyth, 35, et seq. 
 
 (s) Chitty, 67. See Chap. VIII. and notes to sees. 38 and 50, B. N. A. 
 Act, post. 
 
 (t) Chitty, 75. (,) Ib. 107. (r) Ib. 162.
 
 136 THE CANADIAN CONSTITUTION. 
 
 7. The prerogatives in connection with the collection of 
 the revenue (w). 
 
 ' Sergeant STEPHEN in his new Commentaries on the- 
 Laws of England (founded on Blackstone), adopts a some- 
 what different division. According to his arrangement, 
 prerogatives are either direct, or by way of exception. Of 
 the latter he says (x) : 
 
 " Those by way of exception are such as exempt the Crown 
 from some general rules established for the rest of the com- 
 munity as in the case of the maxims that no costs shall be 
 recovered against the Crown ; that the Sovereign can never be a 
 joint-tenant ; and that his debt shall be preferred before a debt 
 to any of his subjects" (/). 
 
 Direct prerogatives he divides into three classes,. 
 according as they regard, (1) the royal character: (2) th& 
 royal authority ; and (3) the royal income (z). Of these 
 divisions, the prerogatives by way of exception, and those 
 regarding the royal authority and the royal income, corres- 
 pond with Chitty's division treating of " prerogativea 
 proper." 
 
 So far as the government of the United Kingdom is- 
 concerned, we may, for reasons about to be stated, abandon 
 any further discussion in detail of these prerogatives. It 
 requires nothing more than a cursory glance at the last 
 edition of Stephen's Commentaries to make clear that par- 
 liament has so taken control of these prerogatives : lias so 
 fettered their exercise by conditions as to the manner, time, 
 and circumstances of putting them into execution: has> 
 indeed, in such a vast majority of cases, indicated the par- 
 
 (w) Ib. 199. 
 
 (x) Steph. Comm. p. 494, vol. II. (5th ed.). 
 
 (y) See Exchange Bank v. Reg., 11 App. Cas. 157, in which it was held 
 that no such prerogative right exists in Quebec ; Reg. v. Bank of Nova 
 Scotia, 11 S. C. R. 1, and Maritime Bank v. Reg., 17 S. C. R. 657 (con- 
 trary holding as to Nova Scotia and New Brunswick). This last case 
 has just been affirmed by the Privy Council. See note (yj'p. 144 pent. 
 
 (z) See Chap. II. ante p. 35, et aeq.
 
 PREROGATIVES OF THE CROWN. 137 
 
 ticular official by whom they are to be exercised, that 
 although exercised in the Sovereign's name all discretion 
 in connection with them has vanished. They have very 
 largely ceased to be " common law " prerogatives, and are 
 now statutory powers. But, before entering upon a con- 
 sideration of the position of the colonies generally, and of 
 Canada in particular, in reference to " prerogative " we must 
 again emphasize the legal principle (<i) that the lex prerog- 
 <i1ir<i \vas part of the law of England, which parliament 
 was able to alter and mould in such way as, in the opinion 
 of parliament, would best conduce to the interests of the 
 people, or to put the same idea into different language 
 the law-making power in England has always been, and 
 still is, supreme over the law-executing power, their sphere 
 of activity being one and the same. We desire, too, to 
 draw attention to the fact that this control by parliament 
 <;\tr the executive, exists by law, and apart altogether from 
 those conventions of the constitution, the observance of 
 which secures harmony and co-operation between the two 
 departments of government, and that this control by 
 parliament is, in truth, the necessary result of the " rule of 
 law. " 
 
 Upon the acquisition of a colony, what is the position of 
 its inhabitants in reference to this lex prerogatives f This 
 broad question finds very scant consideration in the text 
 writers on this branch of law. The two following quota- 
 tions exhaust all that Chitty has to say on the subject : 
 
 " Though allegiance be due from everyone within the terri- 
 tories subject to the British Crown, it is far from being a 
 necessary inference that all the prerogatives which are vested in 
 His Majesty by the English laws are, therefore, exercisable over 
 individuals within those parts of His Majesty's dominions in 
 which the English laws do not, as sucb, prevail. Doubtless 
 those fundamental rights and principles on which tbe King's 
 authority rests, and which are necessary to maintain it, extend 
 even to sucb of His Majesty's dominions as are governed by their 
 
 (<i) See Steph. Comm. (5th ed.) 332. et seq.
 
 13cS THE CAN API AX CONSTITUTION. 
 
 own local and separate laws. The King would be nominally, 
 and not substantially, a sovereign over such of his dominions if 
 this were not the case. But the various prerogatives and rights 
 of the Sovereign, which are merely local to England, and do not 
 fundamentally sustain the existence of the Crown, or form the 
 pillars on which it is supported, are not, it seems, prinnt />/</<>, 
 extensible to the colonies, or other British dominions which 
 possess a local jurisprudence distinct from that prevalent in, and 
 peculiar to England. To illustrate this distinction, the attri- 
 butes of the King, sovereignty, perfection, and perpetuity, which 
 are inherent in, and constitute his Majesty's political capacity, 
 prevail in every part of the territories subject to the English 
 Crown, by whatever peculiar or internal laws they may be 
 governed. The King is the head of the Church ; in JIOHSCSM! of 
 share <>f let/iNltitinn ; and is generalissimo throughout all his 
 dominions ; in every part of them his Majesty is alone entitled 
 to make war and peace ; jjut in c.nnntrip^wbich, though depen- 
 dent on the British Crown, have~chlfefent and local laws for their 
 internal governance, as, for~*nn!tffnce^~ihe plantations or colonies, 
 tEe minor prerogatives and interests' of tEeJJrown nmstbe regu- 
 lated and governed by the peculiarand established law of the 
 place (/>). Though, illsuch law b"e~ silent on the subjectTit would 
 appear that the prerogative, as established by the English law, 
 prevails in every respect; subject, perhaps, to exceptions which 
 the differences between the constitution of this country and that 
 of the dependent dominion may necessarily create in it.- . . 
 . . . In every question, therefore, which arises between the 
 King and his colonies respecting the prerogative, the first con- 
 sideration is the charter granted to the inhabitants (<). If that 
 be silent on the subject, it cannot be doubted that the King's 
 prerogatives in the colonies are precisely those prerogatives 
 which he may exercise in the mother country. The preroga- 
 tives in the colonies, unless where it is abridged by grants, etc. 
 ('), is that power over the subjects, considered either separately 
 or collectively, which, by the common law of England, ab- 
 stracted from Acts of parliament and grants of liberties, etc., 
 
 (>>) See Exchange Bank v. Reg., 11 App. Cas. 157, with which com- 
 pare Maritime Bank v. Reg., 17 S. C. R. 657. 
 
 (c) A fortiori, where the charter is an Imperial Act of Parliament.
 
 PREROGATIVES OF THE CROWN*. 139 
 
 from the Crown to the subject, the King could rightfully exercise 
 in England " (d). 
 
 The statements contained in these passages, are not very 
 definite : but bearing in mind the two methods of acquiring 
 colonies, by conquest (or cession) and by settlement 
 and applying to each type the rules indicated, it may be 
 laid down : (1) That in a conquered or ceded colony which 
 continues to be governed by a foreign law (e), the lex pre- 
 ,'<>(j<t1',r,( of English jurisprudence, is to be no more deemed 
 in force there, than is any other branch of English law (/), 
 subject as Chitty puts it, to the operation therein, of those 
 fundamental rights and principles on which the King's 
 authority rests and which are necessary to maintain it; 
 (2) That in a settled colon}* the lex prerogafwa of English 
 law is carried with them by the settlers, just to the same 
 extent and with the same conditions as to applicability (g), 
 as is the case with the other branches of the common law, 
 and the prerogative rights of the crown are capable of 
 exercise in the execution of the law of a colony not having 
 a legislative body, only to the extent indicated in the 
 commissions of the executive officers who may be sent 
 out (It ). 
 
 The point of supreme importance to us is not however 
 brought? out, (except by inference) but it is a clear and 
 undoubted rule of English law, that upon the establishment, 
 by charter or Imperial Act, of a local legislature within 
 a colony, that legislature is, within the sphere of its 
 authority (be that sphere large or small), possessed of plenary 
 powers of law-making, and may, with of course the consent 
 
 (d) Chitty, 25-32. 
 
 (e) See Forsyth, 12, et seq.; Dicey, Law of the Const., 51, note. 
 
 (/) In some instances this rule has increased the powers of the execu- 
 tive has invested the executive officers with a wide discretionary author- 
 itysimply because the foreign law in force in such colony recognized 
 the existence of such wide discretion in executive government ; see Reg. 
 v. Picton. 30 St. Tr. 225; Forsyth, 87. 
 
 (g) See Chap. V.. ante. ()<) See Chap. VIII. post.
 
 140 THE CANADIAN CONSTITUTION. 
 
 of the Crown as a constituent branch of the legislature,, 
 alter and mould the lex prerogativa as to the colony, to as 
 full an extent as the British parliament can alter and mould 
 it as to the United Kingdom (i). Thereafter the exercise 
 by the Crown, or any officer of the Crown of any preroga- 
 tive right recognised by the law of England, would be in 
 the colony illegal, unless it were also a prerogative right 
 hy t/te law of the colony ; and that would, of course, depend 
 on the will of the colonial legislature as to all matters 
 confided to its authority. The proclamation which followed 
 the Treaty of Paris, made provision (j) for the calling 
 together in Canada, Grenada, and East and West Florida, of 
 " general assemblys," empowered " to make, constitute, and 
 ordain laws. . . for the public peace, welfare, and good 
 government of our said colonies and of the people and 
 inhabitants thereof"; and Lord Mansfield held (/.'), that 
 the effect of this was to prevent the Crown from thereafter 
 exercising legislative authority within the colony. The 
 act of legislative authority questioned in that case, was 
 the imposition by Imperial Order in Council, of an export 
 tax on certain commodities, which strikes one as an act of 
 executive government rather than of legislation ; but how- 
 ever that may be viewed, the reason given for the decision 
 was, that the Crown, (i.e., the executive autl^rity of 
 England), was irrevocably pledged " that the subordinate 
 (I) legislation over the island should be exercised by an 
 Assembly, with the consent of the Governor in Council, in 
 like manner as in the other provinces under the King," and 
 settlers were guaranteed a government by, and according 
 to the laws made by such subordinate assembly. To the 
 
 () Chitty, p. 37. 
 
 (j) Perhaps we should say that it announced that provision had been 
 made, in the commissions to the governors of those provinces, for, etc. 
 See ante, p. 34. 
 
 (fc) Campbell v. Hall, Cowp. 204 ; see Phillips v. Eyre, L. R. 6 Q. B, 
 at p. 19. 
 
 (1) i.e., subordinate to the Imperial Parliament.
 
 PREROGATIVES OF THE CROWN. 141 
 
 like effect is the comparatively recent decision (m) of the 
 Judicial Committee of the Privy Council, that "after a 
 colony or settlement has received legislative institutions, 
 the Crown (subject to the special provision of any Act of 
 parliament ( n ,), stands in the same relation to that colony or 
 .settlement as it does to the United Kingdom." The 
 decision in this last case was that the Crown has no power 
 to constitute, by letters patent, a bishopric or appoint a 
 bishop, (with ecclesiastical jurisdiction) in a colony pos- 
 <1 of an independent legislature. And in a still later 
 <;ase (o) the Judicial Committee of the Privy Council held 
 that the Crown is bound by colonial legislation and in 
 Quebec is entitled to no priority over other creditors because 
 "the subject of priorities is exhaustively dealt with by 
 them'' i. c. by the Codes passed by the parliament of 
 (old) Canada, and continued in force in Quebec by the 
 B. N. A. Act, s. 129, "so that the Crown can claim no 
 jirio/'ifi/ i\rrt>2>t vlt.iif is allowed by them." 
 
 The legislatures existing in Canada, both Dominion 
 and provincial, are statutory i.e., they exist under the 
 authority of the B. N. A. Act with the exception, to a 
 partial extent, of the legislatures of New Brunswick and 
 N"ova Scotia, whose sphere of local authority is alone statu- 
 tory: anfl this fact, of course, makes the argument a forticn'i 
 in the case of Canada. Certainly no act of the executive in 
 England can be upheld against the provisions of an Imperial 
 statute. The powers of our Canadian parliaments have 
 been again and again declared to be, within their sphere, 
 plenary powers of legislation. It is unnecessary to labor 
 further upon this point, for a glance through our statute 
 books will disclose that our colonial parliaments have 
 legislated with regard to the exercise of the vast majority 
 of the prerogatives of the Crown down to the smallest 
 
 (in) In re Lord Bishop of Natal, 3 Moo. P. C. (N. S.) 115. 
 
 () ?'.'.. of the Imperial Parliament. 
 
 (o) Exchange Bank v. Rs^., 11 A.pp. Cas. 157.
 
 142 THE CANADIAN < < INSTITUTION. 
 
 detail, and the discretionary power of the executive is 
 reduced to a minimum, as in the United Kingdom. It may, 
 however, be a^ain remarked that now that executive 
 
 O 
 
 responsibility to parliament, and through parliament tx> 
 the electorate, is so thoroughly recognized, and the " con- 
 ventions "of the constitution which ensure such responsi- 
 bility, so universally observed, the tendency of legislation 
 is to increase the amount of discretion allowed to the 
 executive officers in the various departments of the public 
 service : but this is not a matter of prerogative (a common 
 law right) but a statutory discretion. 
 
 A rule frequently laid down in the authorities that a 
 statute is not to be construed to deprive the Crown of any 
 prerogative right unless the intention so to do is expressed 
 in explicit terms, or arises by irresistible inference ( />} 
 should, perhaps, be here adverted to. It applies t<> 
 colonial legislation ((/) as well as to Imperial, and the case 
 of Exchange Bank v. Reg. (r) is a good illustration of the 
 " irresistible inference " which arises in cases where a statute 
 purports to be exhaustive legislation in reference to a par- 
 ticular subject matter : in which case the Crown is limited 
 to the rights and privileges (if any) conferred by the 
 statute. Applying this to the B. X. A. Act. it appears that 
 the executive government of Canada is to K> carried on by 
 the Governor-General (*) and the executive government of 
 the several provinces by the respective Lieutenani-Gover- 
 nors thereof (t). and that the Act taken as a whole "makes 
 an elaborate distribution of the whole Held of legislative 
 
 O 
 
 authority" ("): and it follows irresistibly that the preroga- 
 tives of the Crown, so far as they are exerciseahle in Canada, 
 
 (p) Maxwell "On the Interpretation of Statutes," p. 161. And see, 
 as to appeals from the colonies to her Majesty in her Privy Council. 
 Reg. v. Bertrand, L. R. 1 P. C. 520. 
 
 (q) See Maritime Bank v. Re;}., 17 S. C. R. (557, (affirmed in P. C. 
 see note (y) p. 144 post) and the " Interpretation Acts " of the Dominion, 
 and the various provinces, of Canada. 
 
 (r) Aitt,', p. 141. (*) Sec. 10; and see notes to sec. 1). (t) Sec. 62. 
 
 (u) Bank of Toronto v. Lambf, 12 App. Ca. at p. 587.
 
 PREROGATIVES OF THE CROWN. 1 4-S 
 
 or in any province thereof, must be exercised in her 
 Majesty's name (r) by the officer who by the B. N. A. Act 
 is entrusted with " the carrying on of government," and 
 cannot be exercised by the Queen i.e., through the Im- 
 perial authorities except in matters over which none of 
 our legislatures have legislative power. 
 
 We shall have occasion to refer with considerable fre- 
 quency to the limitations upon colonial legislative power 
 arising from the colonial xhrtutt, and it is to be observed 
 that the prerogatives of the Crown relating to "Foreign 
 Affairs "(?(). including some as to military matters, have 
 not been placed within colonial legislative power, but are 
 under the control of the Imperial parliament for the 
 reasons (which indeed are obvious) indicated in an earlier 
 chapter (x). But we again" repeat if happily repetition 
 may in this instance emphasize the principle which appeal's 
 to us so important that in every case the power which] 
 makes the law upon any given subject matter, must/ 
 
 (r) B. N. A. Act, sec. 9 and notes thereto, post. 
 
 (u-) See note, ante, p. 135. 
 
 (.r) And see notes to sec. 9 of the B. N. A. Act, pout. The prerogatives 
 vested in the Crown as the Fountain of Honor are looked upon as (so to 
 speak) prerogatives at large and not connected with any particular 
 departm^jit of executive government. The dispute as to the position of 
 provincial Q.C.'s would seem to narrow itself down to the question, 
 whether the appointment is one connected with the administration of 
 justice, or simply an honorary title. If the former, then both the 
 Dominion and Provincial executives would appear to have the power 
 each in relation to the courts of Dominion or Provincial creation, as the 
 case might be. If the latter, then neither would appear to have it, any 
 more than either could make a man a knight. If there were no " bound- 
 less crop of venerable learning " to prejudice one's judgment, and if 
 members of the bar are really officers of the courts, it would seem 
 reasonably clear that the prerogative is one relating to the organization 
 of courts, as to which both governments have powers conferred upon 
 them by the B. N. A. Act. See pott. Chap. XI. In Reg. v. Amer, 
 42 U. C. Q. B. 391, the power to issue commissions of Oyer and Terminer 
 seems to have been treated as a prerogative at large ; but it is submitted 
 there are none such in relation to our self-government ; certainly none 
 are conferred on the Governor-General by his commission.
 
 144 THE CANADIAN n >NSTITrTK>N. 
 
 according to English law be the power which controls the 
 execution of that law in every detail. We have tried to 
 make this clear as to the colonies, and where those colonies 
 have what has been termed a " Unitarian " form of govern- 
 ment the rule would seem to be recognized by judicial 
 decision, and the universal practice of the legislatures of 
 such " Unitarian " colonies. A clear appreciation of the 
 principle will make it apparent that it applies to the 
 different governments of Canada ; and that when we find the 
 l.-uislature of the Dominion empowered to make laws upon 
 any given subject matter, any prerogative right capable of 
 exercise in relation to such matter, must, and can only be 
 exercised by the executive of the Dominion, and so of each 
 of the Provincial governments (*/). The division of the 
 field of government between the Dominion and the pro- 
 vinces is therefore a division along the line of subject 
 matters, and the whole power of government, legislative 
 and executive, in relation to any given subject matter* 
 rests in that government to which it is assigned for legis- 
 lative purposes. 
 
 (y) See per Burton, J.A., in Attorney-General (Can.) v. Attorney- 
 General (Out.), 19 O. A. R. at p. 38. Since the above was written, the 
 report of the judgment of the Judicial Committee of the Privy Council 
 in Liquidators of Maritime Bank v. Receiver General of New Brunswick 
 has appeared. It affirms the text. See Times Law Report,-*, ti July, 1892. 
 We shall have occasion to refer to it again.
 
 CHAPTER Vll. 
 
 EXECUTIVE CHECKS ON COLONIAL LEGISLATION. 
 
 Tin- position of the -crown as a branch of the Imperial 
 parliament, and the reason therefor, is very clearly ex- 
 pressed in a work to which frequent reference was made in 
 the last chapter (): 
 
 " The king is, therefore, very properly a constituent part of 
 parliament, in which capacity he possesses the means of preserv- 
 ing inviolate his rights and prerogatives as supremo executive 
 magistrate, by withholding his assent at pleasure, and without 
 stating any reason, to the enactment of provisions tending to 
 their prejudice (b). It is however only for the purjKwe of jtrotect- 
 in;l the royal e.recutire authority, that the constitution lias assigned 
 to the king a share in legislation; this purpose is sufficiently 
 insured by placing in the crown, tha negative vnwor of rejecting 
 suggested laws. The royal legislative right is not of the delib- 
 erative kind ; the crown has no power to propound laws. 
 Important therefore as this prerogative of rejection is as a shield 
 against rebellious encroachments, as a preservative of the royal 
 executive functions, it is in other points of view of a limited and 
 negative nature." 
 
 We have already (c) quoted from the commission to 
 Governor Cornwallis, of Nova Scotia, the clause which so 
 frankly states the same reason for the negative voice given 
 
 (a) Chitty, On the Prerogatives of the Crown," p. 8. 
 
 (b) See Chap. VI. (c) Ante, p. 'A'A. 
 CAN. CON. 10
 
 146 THE CANADIAN CONSTITUTION. 
 
 to the early governors. It must be borne in mind, how- 
 ever, that in those days the " literary theory " prevailed, 
 which assigned to the legislative and executive departments, 
 of government, not only distinct but independent powers. 
 With the growth in England and the colonies, of the prin- 
 ciple of responsible government through the medium of 
 an executive responsible, through parliament, to the elec- 
 torate the negative voice allowed to the governor of a, 
 colony very largely ceased to find utterance in preservation 
 of prerogative, and came to be employed as the up-bolder, 
 rather, of the supremacy of the Imperial parliament. And 
 so with reference to the second negative allowed by the 
 common law to the occupant of the throne, over all acts of 
 subordinate legislative bodies throughout the Empire (</) : 
 that second negative came to be exercised subject to the 
 "conventions of the constitution" which limit the interfer- 
 ence of the Home government with colonial legislation, to 
 interference in relation to matters of Imperial concern to 
 securing unity of national purpose and method throughout 
 the various parts of a world-wide Empire. In other words, 
 the true federal idea the reconciliation of national unity 
 with local self-government (e) dominates this phase of our 
 relationship to the mother country, just as it now deter- 
 mines the extent to which the British parliament shall 
 legislate, as an Imfta-inl parliament, for the colonial por- 
 tions of the Empire. This is the conventional aspect. 
 What is the legal position ? 
 
 In former chapters the paramount legislative authority 
 of the Imperial parliament has been pointed out, and the 
 necessity for a careful distinction between its unlimited 
 extent, legally speaking, and its limited operation, " conven- 
 tionally " considered, insisted upon. And. just as we may 
 have laws enacted for us by an authority entirely external, 
 so we may have the deliberate utterances of what we 
 
 (d) See Chitty, at p. 25 passage quoted ante, p. 138. 
 
 (e) See ante, p. 8.
 
 EXECUTIVE CHECKS ON COLONIAL LEGISLATION. 147 
 
 may call the two colonial branches of our Canadian parlia- 
 ment bills which have passed both Commons and Senate 
 denied legal operation as Acts of parliament, by the 
 refusal of Her Majesty's representative to assent thereto in 
 /jjier name. 
 
 w / By express provision of the B. N. A. Act (/), the Queen 
 is a constituent branch of the parliament of Canada, and 
 Her assent is necessary before a bill can become law. Her 
 representative, the Governor-General of Canada, may refuse 
 such assent ; or he may reserve the bill for the considera- 
 tion of the Queen in Council (that is to say, of the 
 Imperial government), and upon such consideration, assent 
 may be withheld: or, the Governor-General having as- 
 sented and the bill having passed into Act of parliament, 
 it may, within two years from its receipt by the Secretary 
 of State in England, be disallowed, and "such disallow- 
 ance . . . being signified by the Governor-General 
 shall annul the Act from and after the day of 
 such signification." Now, it matters not what may be the] 
 reasons, assigned or uiiassigned, for withholding tht 
 Queen's assent to a bill, or for disallowing an Act of 
 Canadian parliament ; the effect is, that in the former case, 
 the bill is as if it never had been : in the latter, it is 
 repealed by the Imperial government. 
 
 To deal with the different phases of this subject, more 
 in detail, we quote first, section 55 of the B. X. A. Act : 
 
 " Where a bill passed by the houses of the parliament is pre- 
 sented to the Governor-General for the Queen's assent, he saall 
 declare according to his discretion, but subject to the provisions 
 of this Act and to her Majesty's instructions, either that he 
 assents thereto in the Queen's name, or that he withholds the 
 Queen's assent, or that he reserves the bill for the signification 
 of the Queen's pleasure." 
 
 (f) Sec. 17 ; and see also sec. '2. The Crown is also a constituent 
 branch of the provincial legislative assemblies see notes to sees. 58 and 
 69, post.
 
 148 THE CANADIAN < 'ONSTITfTIoN. 
 
 The exercise by the Governor-General of tlii.s discretion- 
 ary power cannot be legally questioned. Doubt having been 
 expressed as to the legal efficacy of colonial enactments 
 when assented to by a Governor, contrary to his instruc- 
 tions, that doubt was set at rest by the Colonial Laws 
 Validity Act, 1805, the fourth section of which enacts: 
 
 "No colonial law, passed with the concurrence of or as- 
 sented to by the governor of any colony, or to be hereafter so 
 passed or assented to, shall be, or be deemed to have been, void 
 or inoperative by reason only of any instructions with reference 
 to such law, or the subject thereof, which may have been given 
 to such governor by or on behalf of Her Majesty, by any instru- 
 ment other than the letters patent or instrument authorizing 
 such Governor to concur in passing, or to assent to laws for 
 the peace, order, and good government of such colony, even 
 though such instructions may be referred to in such letters 
 patent, or hist mentioned instrument." 
 
 So, therefore, while the assent of the Governor-General 
 in the Queen's name, or in the ease of a reserved bill 
 his signification of the Queen's assent, is absolutely essen- 
 tial to the validity of all Acts of the parliament of Canada, 
 that assent once given to any Act, such Act (if within the 
 legislative competence of parliament) becomes law, subject 
 only to the power of disallowance by the Queen in Council. 
 
 This power is recognized, and the mode of its exercise 
 defined by the oOth section of the B. N. A. Act: 
 
 " Whore the Governor-General assents to a bill in the 
 Queen's name, he shall, by the first convenient opportunity, 
 send an authentic copy of the Act to one of Her Majesty's 
 Principal Secretaries of State, and if the Queen in Council, 
 within two years after receipt thereof by the Secretary of State, 
 thinks fit to disallow the Act, such disallowance (with a certifi- 
 cate of the Secretary of State of the day on which the Act was 
 received by him) being signified by the Governor-General, by 
 speech or message to each of the houses of the parliament, or 
 by proclamation, shall annul the Act from and after the day of 
 such signification."
 
 EXE< TTIVE CHECKS OX COLONIAL LEGISLATION. 14!) 
 
 In this section it is material to note the limitation of the 
 time within which the disallowance must take place. At. 
 common law, no such time limit existed, and this is one of 
 those instances (to which reference was made in the last 
 chapter) of the conversion of a common law prerogative 
 into a statutory power. The two years being allowed to 
 pass, without such disallowance by order in council for 
 that is the method prescribed the executive department 
 of the Imperial government can no longer interfere with 
 the operation of the Act; nothing short of "repugnant" 
 Imperial legislation can weaken its validity. 
 
 The Governor-General, however, as has been noticed, 
 may. in the ease of any bill presented to him, exercise his 
 discretion, by neither giving nor withholding the assent of 
 the Crown thereto: a third coui-se is expressly allowed 
 him : namely, to reserve the bill for the signification of the 
 Queen's pleasure ((/) : and by section 57 of the B. N. A. 
 Act, it is enacted : 
 
 " A bill reserved for the signification of the Queen's pleasure 
 shall not have any force unless and until within two years from 
 the day ou which it was presented to the Governor- General for 
 the Queen's assent, the Governor- General signifies by speech 
 or message to each of the houses of the parliament, or by 
 proclamation, that it has received the assent of the Queen in 
 council . . . ." 
 
 As we are now dealing with questions which arise out 
 of our colonial relation to Great Britain, it is perhaps better 
 to defer consideration of the power of the Lieutenant- 
 Go vernor of a province, to withhold the Queen's asspnt 
 from bills passed by the legislative assembly of his province, 
 and of the power of the Governor-General (in Council) to 
 disallow Acts of the provincial legislative assemblies, until 
 we come to discuss the Canadian constitution in its internal 
 aspect (It.). 
 
 (g) Sec. 55. 
 
 (h) See next chapter, where will also be found some further observa,- 
 tions on the " conventional " limits set to the exercise of the Imperial 
 power of disallowance.
 
 CHAPTER VITI. 
 
 THE CONNECTING LINK THE GOVERNOR- 
 GENERAL (a). 
 
 In popular phraseology, the Governor-General is the 
 " Queen's representative " in Canada, and in the popular 
 mind there is an idea, vague no doubt, but still deeply 
 ingrained, that he is clothed with large and vice-regal 
 attributes, standing to us in much the same position as her 
 Majesty occupies towards her subjects within the borders 
 of the United Kingdom. But to the constitutional lawyer, 
 learned in the Dryasdust precedents (as Carlylean laymen 
 would doubtless term them) which define the legal position 
 of a Colonial Governor, he appeal's in the light of an officer 
 clothed with an authority strictly limited (/>), whose rvcry 
 act as governor must be legally justified (c) by the terms of 
 her Majesty's commission appointing him to fill the office, 
 and whose capacity as representative is not general, but 
 
 (a) See Broom, " Const. Law," p. 622, et seq. ; Forsyth, p. 84 et seq.; 
 Todd, " Parl. Gov. in Brit. Col." It would appear that Mr. Todd's work 
 was written in order to inculcate a proper appreciation of the importance 
 of the office ; see p. 584 of his book. See also Art. in Law Mag. for 
 Nov., 1861 (Vol. 12), at p. 182, etseq., quoting with approval the language 
 of '' a very able colonial lawyer " A. Stuart, advocate, Montreal in a 
 work published in 1832, " On the functions and duties of the governor of 
 a British province." 
 
 (b) Cameron v. Kyte, 3 Knapp, P. C. 332 ; Hill v. Bigge, 3 Moo. P. C. 
 465 ; Musgrave v. Pulido, L. R. 5 App. Cas. 102. 
 
 (c) Oliver v. Bentinck, 3 Taunt. 460 ; Raphael v. Verelst. 2 \V. Black. 
 1050; and cases in last note.
 
 THE GOVERNOR-GENERAL. 151 
 
 special, in principle not more general, and not less special, 
 than that of the most unlettered Dogberry on the magis- 
 terial bench of a back township (</), the powers, authorities 
 and functions of each appearing in, and being limited by, 
 the terms of their respective commissions. 
 
 A word of caution should perhaps be written at this 
 stage of our inquiry. In order that the reader may not be 
 led to underrate the importance, from a political stand- 
 point of a governor's position, and the varied and respon- 
 sible duties which are put upon him by her Majesty's com- 
 mission (c>), it may be again observed that we are now 
 looking at his position from the standpoint of the lawyer, 
 and not that of the statesman. In some respects it may 
 indeed be said that the law recognizes as legally effective, 
 various acts of a governor, which constitutional usage 
 would emphatically condemn, and the doing of which would 
 afford ample ground for his recall ; while on the other hand, 
 a governor may by one and the same act incur civil or even 
 criminal liability, and win the approbation of his Imperial 
 superiors. We cannot too rigorously insist on the distinc- 
 tion frequently pointed out in the foregoing pages, between 
 the legal and the conventional, under the British system of 
 government. We shall have occasion to refer more at 
 length hereafter, to the limits within which the legal powers 
 of a governor should find scope for " conventional " exercise ; 
 but, as was pointed out in reference to the exercise by the 
 Imperial parliament of its legal power to enact laws for a 
 colony, a proper recognition of the legal position will greatly 
 tend to strengthen colonial statesmen in their insistence 
 upon the " conventional " limits being accurately defined 
 and observed. 
 
 (d) Finlayson, " Review of the Authorities as to Repression of Riot," 
 110. Compare with this the language of Taschereau, J. (in reference to 
 the position of a Lieut. -Governor) The Queen v. Bank of Nova Scotia, 
 1] S. C. R. at p. 24. 
 
 (?) That commission refers to the B. N. A. Act, under which (see sec. 
 10) he is described as an executive officer "carrying on the government 
 of Canada."
 
 ;<\ 
 
 152 THE CAXADIAX rnXsTnTTIoX. 
 
 IS 
 
 In the early days of colonial history, there s. mis to 
 have been a disposition on the part of governors a] -pointed 
 to distant portions of the Empire, to set themselves above 
 the law (/), and to insist upon the applicability to their 
 case of the maxim, " The King can do no wrong." As in 
 England, the Sovereign cannot be arrested by virtue of any 
 
 lethal process, or be impleaded in any court of justice in 
 
 c -.__ * 
 
 reference to any actTpublic" OT ' private (V/) so these early 
 colonial governors, claiming a delegated sovereignty. 
 attributed to themselves a corresponding sacredness of 
 person, and an equal immunity from the jurisdiction of 
 courts of justice. It is a very interesting study to trace 
 the course of the decisions by which the attributes with 
 which they had in fancy clothed themselves, were one by 
 one stripped from them, until now their position, as legally 
 recognized, is as above stilted. It would appear from the 
 earlier authorities, that the pretentions of the early gover- 
 nors to the immunities of a delegated sovereignty, were 
 not paraded out of the territorial limits of their colonial 
 government, and when proceeded against i~n Kmjln n<l. they 
 defended themselves by pleas in bar, and not in abatement 
 by defences on the merits, justifying their acts under their 
 commissions, and not denying the jurisdiction of the Eng- 
 lish courts to entertain suits brought against them (It). 
 And, when, in 1773, Governor Mostyn did allege, as a 
 plea to the jurisdiction of an English court, that tin- 
 acts complained of in the action, were done by him as 
 
 (/) See preamble to 11 * 12 Wm. III. c. 12, cited post. 
 
 (<j) Steph. Comm. Vol. II. 498; Chitty, " Prerog. of the Crowu." ;;74. 
 
 (h) In Fabrigas v. Mostyn, 1 Sm. Ldg. Cas. (8th. ed.) (>5'2, Lord Mans- 
 field cites three instances of actions brought in England against governors, 
 in respect of acts done in the Colony, during their term of office, in none 
 of which, so far as appears, was there any plea to the jurisdiction 
 Lord Bellamont's case, 2 Salk. 025 ; Comyn v. Sabine (not elsewhere 
 reported); and a third case mentioned by Powell, J., in Way v. Yally, 
 6 Mod. 194.
 
 THE OOVEKXOH-OENEHAL. 153 
 
 Governor of Minorca, Lord Mansfield thus disposes of the 
 plea (?'): 
 
 " The two grounds which are enforced to-day, are, if I take 
 them right, first, that the defendant was governor of Minorca, 
 and therefore for no injury Tvhatsoever that is done by him. 
 right or wrong, can any evidence be heard, and that no action 
 can lie against him; secondly, that the injury was done out of 
 the realm. I think these are the whole amount of the questions 
 that have been laid before the court. Now as to the first, there 
 is nothing so clear as that, in an action of this kind, which is for 
 an assault and false imprisonment, the defendant, if he has any 
 justification, must plead it; and there is nothing more clear than 
 that if the court has not a general jurisdiction of the matter, he 
 must plead to that jurisdiction, and he cannot take advantage of 
 it upon the general issue. 
 
 " The point that I shall begin with, is the sacredness of the 
 person of the Governor. Why, if that was true, and if the law 
 was so, he must plead it. This is an action of false imprison- 
 ment ; priimi facie, the court has jurisdiction. If he was guilty 
 of the fact, he must show a special matter that he did this by a 
 proper authority. What is his proper authority ? The King's 
 commission to make him governor. Why, then, he certainly 
 must plead it ; but, however, 1 will not rest the answer upon 
 that. It has been singled out that in a colony that is beyond 
 the seas, but part of the dominions of the Crown of England, 
 though actions would lie for injuries committed by other persons, 
 yet it shall not lie against the governor. Now I say for many 
 reasons, if it did not lie against any other man, it shall most 
 emphatically lie against the governor. In every plea to th^ 
 jurisdiction, you must state a jurisdiction ; for if there is no 
 other method of trial, that alone will give the King's Courts 
 jurisdiction. Now in this case no other jurisdiction is shown, 
 even by way of argument ; and it is most certain that if the 
 King's courts cannot hold plea in such a case, there is no other 
 court upon earth that can do it ; for it is truly said that a gover- 
 
 (/) Fabrigas v. Mostyn, Cowp. 161. It will be noticed that the C.J. 
 animadverts upon the indefinite n iture of the plea in this case, but 
 treats it as a plea to the jurisdiction.
 
 154 THE CANADIAN CONSTITUTION. 
 
 nor is in the nature of a Viceroy (./'), and of necessity part of the 
 privileges of the King are communicated to him during the time 
 of his government. No criminal prosecution lies against him, 
 and no civil action will lie against him, because what would the 
 consequence be ? Why, if a civiKaction lies against him, and a 
 judgment is obtained for damages, he might be taken up and 
 put in prison on a ca]>inx. And therefore locally during the 
 time of his government, the courts in the island cannot hold 
 plea against him. If he is out of the government, he leaves it ; 
 he comes and lives in England, and he has no effects there to 
 be attached ; then there is no remedy whatsoever if it is not in 
 
 the King's Courts There may be some cases arising 
 
 abroad, which may not be fit to be tried here, but that cannot 
 be the case of a governor injuring a man contrary to the duty of 
 his office, and in violation of the trust reposed in him by the 
 King's commission. And therefore in every light in which I see 
 this matter, it holds emphatically in the case of a governor if it 
 did not hold with respect to any other man within the colony, 
 province, or garrison. But to make question upon matters of 
 settled law, where there have been a number of actions 
 determined which it never entered into man's head to dispute 
 to lay down in an English court of justice such monstrous pro- 
 positions as that a governor acting by virtue of letters patent, 
 under the Great Seal, can do what he pleases ; that he is account- 
 able only to God and his own conscience, and to maintain here 
 that every governor in every place, can act absolutely ; that he 
 may spoil, plunder, affect their bodies and their liberty, and is 
 accountable to nobody is a doctrine not to be maintained. . . . 
 How can the argument be supported that in an Empire so 
 extended as this, every governor in every colony, and every 
 province belonging to the Crown of Great Britain, shall be 
 absolutely despotic, and can no more be called in question than 
 the King of France ? And this after there have been multitudes 
 of actions in all our memories against governors, and nobody 
 has been ingenious enough to whisper them that they were not 
 amenable." 
 
 From that day to the present, no plea to t/tf jn i-ixifii-timi 
 lui-; ever again been raised to an action brought in England, 
 
 (j) This proposition is untenable ; see }>.< t.
 
 THE 60VERNOR-GEXERAL. 155 
 
 and many governors have been mulcted in damages by 
 English juries, for acts done within the limits of their 
 colonial governments (k). 
 
 It will be noticed however that in his celebrated judg- 
 ment in Fabrigas v. Mostyn, Lord Mansfield lent the weight 
 of his high authority to certain propositions, which if 
 correct, would on the one hand largely increase the powers, 
 and on the other hand largely lessen the liability of a 
 governor lx>th propositions however being really depen- 
 dant upon the first. Adopting the proposition that a 
 Governor is a " Viceroy " with a certain measure of dele- 
 (futftl sovereignty, he draws from it the further proposition 
 (not necessary for the decision of the case) (I), that he is 
 not amenable, civilly or criminally, to the courts of the 
 colony over which he presides, during the term of his 
 government. Practically considered, the position of parties 
 having claims upon the governor, would in this view be 
 one of much hardship, and in many cases would work a 
 complete denial of justice. So no doubt Lord Aylmer's 
 house-keeper thought, when the Court of King's Bench 
 in Lower Canada, adopting Lord Mansfield's dictum 
 declined to entertain her action for wages due from His 
 
 O 
 
 Excellency (m). 
 
 It is now however clearly settled that a governor is 
 liable to civil action in the courts of the colony over which 
 he presides, not merely (1) in respect of claims upon con- 
 tracts entered into, and torts committed by him in his 
 
 (fc) Wall v. MacNamara, 1 T. R. 536; Wilkins v. Despard, 5 T. R. 
 112 ; Glynn v. Houston, 2 M. & G. 337; Oliver v. Bentinck. 3 Taunt, 456 ; 
 Wyatt v. Gore, Holt N. P. 299 (defendant was Lieut. -Gov. of Upper 
 Canada, and had to pay 300 for libelling plaintiff in the colony). It is 
 to be observed that the commissions of some of these Governors con" 
 ferred military authority, and the first three cases were in respect of 
 military excesses, but the principle of the cases is throughout the same. 
 See too Phillips v. Eyre, L. R. 4 Q. B. -2-2.5 ; 6 Q. B. 1 
 
 (/) See Hill v. Bigge, 3 Moo. P. C. 465. 
 
 (HI) Harvey v. Lord Ayhner, I Stuart 542.
 
 156 THE CANADIAN ct \s'l ITFTION. 
 
 private capacity, but also (~2) in respect of any claim 
 against him for acts done in the supposed exercise of his 
 p :>wers us governor. Of the former class, we may instance 
 the case of the Governor of Trinidad, who was informed by 
 the Judicial Committee 1 of her Majesty s Privy Council (on 
 appeal from the colonial court) that he must submit t > the 
 indignity of defending an action brought in the court of his 
 own colony by certain vindictive jewellers whose bill he 
 had omitted to pay before leaving England (/>) Since 
 that time the proposition may be considered settled, that 
 for a cause of action wholly unconnected with his official 
 capacity, the governor of a colony may be sued in the 
 courts of that colony. ^ 
 
 11 They who maintain the exemption of any person from the 
 law by which all the King's subjects are bound, or what is tha 
 same thing, from the jurisdiction of the courts which administer 
 that law to all besides, are bound to show some reason or author- 
 ity leaving no doubt upon the point. The reference to analogies,, 
 or the supposition of inconvenient consequences, must be much 
 more pregnant than any that can be urge a in this case, to sup- 
 port or even to countenance such a claim. If it be said that the 
 governor of a colony is I/HUHI sovereign, the answer is that he 
 does not even represent the sovereign generally, having onlj 
 the functions delegated to him by the terms of his commission 
 and being only the officer to execute the specific powers with 
 which that commission clothes him." /V/- Lord Brougham in 
 Hill v. Bigge. 
 
 And speaking of Fabrigas v. Mostyn, Lord Brougham 
 says : 
 
 "It is only a decision that he was liable to be sued in 
 England for personal wrongs done by him, while Governor of 
 Minorca. Nor does the decision thus given, rest upon any doc- 
 trine denying his liability to be sued in the island. There is no 
 doubt a dictum of Lord Mansfield's in giving the judgment 
 ' that the governor is in the nature of a viceroy, and that there- 
 fore locally during his government, no civil or criminal action 
 
 (n) Hill v. Bigj?e, 3 Moo. P. C. 405.
 
 THE (JOVEHXOH-CEXERAL. 157 
 
 will lie against him.' And the reason and the only reason given 
 for this position is, because upon process lie would be subject to 
 imprisonment. With the most profound respect for the author- 
 ity of that illustrious judge, it must be observed that as has been 
 shown, the- governor being liable to process during his govern- 
 ment won id not of any necessity follow from his being liable to 
 action, ai:d that the same argument might be used to show that an 
 action lies not against persons enjoying undoubted freedom from 
 arrest by reason of privilege. But the decision in the case does 
 not rest on this dictum. . . . The consequences imagined 
 to follow from holding the governors liable to action like their 
 fellow-subjects, are incorrectly stated, and if true would not 
 decide the question/' 
 
 Since the decision in Hill v. Bigge, the notion that the 
 governor of a colony is in the nature of a viceroy, may be 
 considered as forever exploded. The extent of a gover- 
 nor's powers had previously been passed upon in'the case of 
 -Cameron v. Kyte (<>), to which, it is true, the governor was 
 not a party, but the governor's order in council being set 
 up as a defence to the action, its validity was properly as 
 the Judicial Committee of the Privy Council held 
 inquired into by the courts of the colony. In giving 
 judgment, Parke, B., says : 
 
 " If a governor had by virtue of that appointment, the whole 
 sovereignty of the colony delegated to him as a viceroy, and 
 represented the king in the government of that colony, there 
 would be good reason to contend that an act of sovereignty done 
 by him would be valid and obligatory upon the subject living 
 within his government, provided the act would be valid if done 
 by the sovereign himself, though such act might not be in con- 
 formity with the instructions which the governor had received 
 for the regulation of his own conduct. The breach of those 
 instructions might well be contended on this supposition to be 
 matter resting between the sovereign and his deputy, rendering 
 the latter liable to censure or punishment, but not affecting the 
 validity of the act done. But if the governor be an officer 
 merely with a limited authority from the crown, his assumption 
 
 (o) 8 Knapp. P. C. 33'2.
 
 158 THE CANADIAN CONSTITUTION. 
 
 of an act of sovereign power, out of the limits of the power so 
 given to him, would be finally void, and the court* of the colony 
 in-cr irhich he ^resided could not yice it an;/ leijal effect. We think 
 the office of governor is of the latter description, for no authority 
 or dictum has been cited before us to show that a governor can 
 be considered as having the delegation of the whole royal power 
 in any colony, as between him and the subject, when it is not 
 expressly given him by his commission. And we are not aware 
 that any commission to colonial governors conveys such an 
 extensive authority." 
 
 Finally so far as concerns civil liability the question 
 of a governor's amenability to the courts of his colony in 
 respect of acts done /<// him in the supposed exercise of h i * 
 powers cm governor, came before the Judicial Committee of 
 the Pi-ivy Council, on an appeal (/>) from the colonial court 
 in which the action had been brought ; and in the judg- 
 ment of the Committee, the authorities are reviewed and a 
 clear decision reached, that the colonial courts have as 
 complete jurisdiction to entertain an action against a 
 governor as against any other inhabitant of the colony. 
 After reviewing the previous authorities, the judgment of 
 the Committee proceeds as follows : 
 
 "It is apparent from these authorities that the governor of a 
 colony (in ordinary cases) cannot be regarded as a Viceroy ; nor 
 can it be assumed that he possesses general sovereign power. 
 His authority is derived from_his commission, and limited _ to 
 the powers~T!taOTfeby expressly or impliedly entrusted to him. 
 Let nT T)egranted thaTtbTnartS^oT power done by a governor 
 under and within the limits of his commission he is protected, 
 because in doing them he is the servant of the crown, and is 
 exercising its sovereign authority ; the like protection cannot be 
 extended to acts which are wholly beyond the authority confided 
 to him. Such acts, though the governor may assume to do 
 them as governor, cannot be considered as done on behalf of the 
 crown, nor to be in any sense, proper acts of state. When 
 questions of this kind arise, it must necessarily be within the 
 province of municipal courts to determine the true character of 
 
 (p) Musgrave v. Pulido, L. R. 5 App. Cas. 10'2.
 
 THE GOVERNOR-GENERAL. 159 
 
 the acts done by a governor, though it may be that when it is 
 established that the particular act in question is really an act of 
 state policy done under the authority of the crown, the defence 
 is complete, and the courts can take no further cognizance of it." 
 
 From these authorities, therefore, we may draw the 
 following conclusions : 
 
 1. The powers, authorities and functions of colonial 
 governors are such, and such only as are contained 
 expressly or impliedly in the commission under which 
 the office is held by him (q) : for any act done qua 
 governor and within his authority as such, he incurs no 
 liability, either ex con tract a (/) or in tort (). 
 
 2. For any act done in his private capacity, or done 
 qua governor, but beyond his powers as such, a colonial 
 governor is amenable to the civil jurisdiction of Her 
 11 Y^Majesty's courts, to the same extent as any other iiidivi- 
 +J \py/dual ; and no distinction can be drawn between the courts 
 / in England and the colonial courts in respect to their juris- 
 diction to entertain an action against a governor (). 
 
 3. To any action brought against him, he cannot plead 
 a plea of personal privilege of immunity from being im- 
 pleaded except as part of the larger plea that the acts 
 complained of were done qua governor and as " acts of 
 State," in which case the only remedy of the party 
 aggrieved is by petition of right against the crown (ii\ 
 
 4. A governor must plead specially his justification ; 
 in other words, when a governor justifies any act as being 
 within the powers vested in him by his commission, he 
 
 (q) Cameron v. Kyte, Hill v. Bigge, Musgrave v. Pulido, ubi supra. 
 
 (r) Macbeath v. Haldimand, 1 T. R. 172 unless, indeed, he pledges 
 his personal credit. 
 
 (s) Reg. v. Eyre, L. R. 3 Q. B. 487, and the charge of Blackburn, J., 
 in the same case, reported by Fiulayson sub. tit., " The proceedings in 
 the Jamaica case" ; Comyn v. Sabine, cited by Lord Mansfield in Fabri- 
 gas v. Mostyn, Cowp. 161. 
 
 (t) Hill v. Bigge, Musgrave v. Pulido, ubi supra. 
 
 (u) Musgrave v. Pulido, supra.
 
 UK) THE CANADIAN CONSTITUTION. 
 
 must plead the commission, his powers thereunder, and 
 show by proper averments that the acts complained of 
 were clone in the proper exercise of those powers (?') 
 
 We have hitherto considered the position of a governor 
 in respect to his liability to civil action ; how stands the 
 law as to his criminal liability for crimes committed by 
 him while governor? Lord Mansfield's dictum, it will be 
 seen, lays down his immunity from criminal prosecution as 
 well as from civil suit in the courts of the colony, but the 
 very same course of reasoning which resulted in the decis- 
 ions in Hill v. Bigge, and Musgrave v. Pulido, would seem 
 equally to lead to the conclusion that a governor is amen- 
 able criminally to the courts of the colony, for crimes com- 
 mitted in the colony, whether such crimes are connected 
 with his official position or entirely aside from it. 
 
 Let us consider this question a little more fully. The 
 preamble to the statute 11 & 12 Will. III. c. 12 "An 
 Act to punish governors of plantations, in this Kingdom 
 for crimes by them committed in the plantations" charac- 
 terizes the governors of those days as " not deeming them- 
 selves punishable for the same here (w), nor accountable 
 for such their crimes and offences to any person within 
 their respective governments " ; for remedy whereof, pro- 
 vision was made by the statute for the -trial of any offend- 
 ing governors /'// England. This statute was extended so 
 as to apply to other persons holding colonial appointments, 
 by 42 Geo. III. c. 85, and both statutes are. to-day in force. 
 How far do they apply ? And do they, so far as they do 
 apply, negative the jurisdiction of the colonial courts ? 
 Apart from these statutes, and adopting the doctrine of 
 Hill v. Bigge, and Musgrave v. Pulido, the jurisdiction of 
 the colonial courts would seem beyond question-, and it is 
 .submitted that these statutes are, so far as they do apply, 
 
 (v) Oliver v. Bontinck, 3 Taunt. 400; and ca<?cs cited xitpra, p. 150. 
 (IP) Crimes being local, and triable and punishable locally. See post, 
 -Chap. IX.
 
 THE (iOVEHNOR-GEXERAL. 161 
 
 cumulative and not exclusive. Owing to the rigid rules of 
 the common law as to venue in criminal prosecutions, it 
 required statutes to render legal the trial in one county of 
 an offence committed in another: fortiori, the trial in 
 England of offences committed on or beyond seas (x). An 
 early statute, 33 Henry VIII. c. 23, provided for the 
 appointment of a special commission for the tiial of 
 pel-sons charged with murder 011 or beyond the seas, and it 
 was under this statute that Governor Wall was tried, con- 
 demned, and executed (y). A governor, therefore, once 
 departed from his colony would be entirely free from 
 danger, unless, indeed, he could be sent back to stand his 
 trial. The more practical remedy, however, would seem to 
 have been adopted, and under the statute of William III., 
 the objection in respect to venue was taken away. The 
 preamble, moreover, speaks of the governors as " deeming 
 themselves not accountable " to the colonial courts, and the 
 statute is in no sense declaratory that such is the law. So 
 we conclude that even in those cases in which, under this 
 statute, a governor may be tried in England for offences 
 committed in the colony, he is equally amenable to the 
 courts of the colony. 
 
 But these statutes have been held not to apply to 
 felonies, and only to misconduct in office. Ellenborough, 
 C. J., thus characterizes (z) the later statute : 
 
 "The object of this Act was in the same spirit with the Act 
 of 11 & 12 William III., to protect His Majesty's subjects 
 against the criminal and fraudulent acts committed by persons 
 in public employment abroad, in the exercise of their employments; 
 to reach a class of public servants which that statute did not 
 reach and to place them in jmri tli-Iicto with governors. It has 
 no reference in spirit or letter to the commission of felonies. . . 
 The reason of the thing, a priori, would lead us to conclude that 
 
 (x) See note to Keighley v. Bell, 4 F. & F. at p. 490, and post, Chap. IX. 
 (y) Reg. v. Wall, 28 St. Ir. 51 ; see Broom, " Const. Law," 652. 
 (i) Reg. v. Shaw, 5 M. & S. 403, the only reported authority on it. 
 CAN. CON. 11
 
 162 THE CANADIAN CONSTITUTION. 
 
 the jurisdiction as to trial of felonies should / restrained to tlu 
 \ local courts." 
 
 Although the prisoner in that case was not a governor 
 but a subordinate officer in the civil service, the reasoning 
 would (in the light of the decisions as to a governor's civil 
 liability) seem to lead to a clear conclusion that the juris- 
 diction of the courts of a colony to try a governor for 
 felonies committed within the colony, or misdemeanors 
 unconnected with his office, there committed, is beyond 
 question. And for the reasons before given, it is submitted 
 that there is like jurisdiction in respect of offences falling 
 within the statute of William III. 
 
 It is beyond the province of this work to discuss the 
 question, what is necessary to affix criminal character to 
 acts of a governor done in the supposed exercise of his 
 powers. We are merely interested in showing that the 
 same criminal and civil liability exists in the case of a 
 governor as in the case of any other officer of the crown 
 acting under a limited authority, leaving the student who 
 desires to pursue this subject further to consult writers 
 who deal with this larger subject (</). 
 
 / Having now pointed out that for the powers and duties 
 Jof a colonial governor, we must look to the terms of his 
 /commission, we must follow the course indicated, and for 
 the powers and duties of the Governor-General of Canada. 
 look to the terms of the commission under which that 
 office is held. We shall hereafter have to point out certain 
 changes which have from time to time been made in the 
 trrms of the commission, but for our present purpose an 
 inquiry into the legal powers, as now existing, of the 
 Governor-General it will suffice to say that in 1878, 
 Letters Patent under the Great Seal of the United King- 
 
 (n) Broom, "Const. Law," 649, et *eq., 656, et xeq. It may be noted that 
 the cases in which governors have been prosecuted, have involved the 
 question of their liability as military officers in command abroad 
 rather than as civil servants. The Letters Patent constituting the office 
 of Governor-General of Canada convey no military powers. See _/>>.<>.
 
 THE GOVERNOR-GENERAL. 163 
 
 dom, were issued, and are still in force, "making effectual and 
 permanent provision for the office of Governor-General " of 
 Canada, providing for the appointment, from time to time, 
 by Commission under the Sign Manual and Signet, "of 
 the person who shall fill the said office," and enumerating 
 the powers and duties which should devolve upon such 
 pei-son (6). He is authorized and commanded to do and 
 execute in due manner all things that belong to his com- 
 mand and trust, according : 
 
 ^1. To the several powers and authorities granted or 
 appointed him by virtue of : 
 
 (a) The British North America Act, 1867. ~ 
 
 (b) The letters patent (now being recited).^ f ^, 
 
 (c) His Commission. 
 
 ' v - II. To such instructions as may from time to time be 
 given to him, 
 
 (a) Under the Sign Manual and Signet. 
 
 (b) By order of her Majesty's Privy Council. 
 
 (c) Through one of the Secretaries of State. 
 
 III. 'To such laws as are, or shall hereafter be in force 
 in Canada. 
 
 Now although in the last analysis, the powers of the 
 Governor-General are derived from Imperial authority, it 
 will nevertheless much facilitate our inquiry, if we divide 
 these powers (as the Letters Patent practically divide 
 tin-in) namely, with reference to their immediate source, 
 thus : 
 
 1. Powers conferred from without the Dominion i.e., 
 by Imperial authority. 
 
 2. Powers conferred by Canadian enactments. 
 
 And with respect to this division we may say that the 
 powers directly conferred by Imperial authority, are with 
 certain few exceptions, to be hereafter discussed powers 
 not requiring for their exercise, their legally-effective ex- 
 ercise, the concurrence of any other person or body ; while, 
 
 (b) See the Letters Patent printed in Appendix.
 
 THE CANADIAN CONSTITUTION. 
 
 as a rule (the exceptions to which must also be adverted to 
 hereafter) the powers conferred by Canadian enactment 
 require the concurrence of the Queeji^sPrivyCouncilJor/ 
 Canada, in order to their effec^ve^exercise7~or ^lii^other \s 
 words can only be legally exercised by Order in Council. 
 In considering these same powers from a " conventional " 
 standpoint, an entirely different principle of division must 
 be adopted, if indeed there is any division so far as regards 
 their " conventional " exercise. Following then the line of 
 division adopted, as likely to afford assistance in arriving 
 at a correct view of the Governor-General's powers from 
 the standpoint of the legal efficacy of their exercise we 
 proceed to discuss shortly, the prerogative rights and 
 powers with which the Governor-General is entrusted /<// 
 ilii'ccf I /,i/"'/-in! authority. 
 
 We have already discussed the question of the extent 
 to which the Crown's prerogative rights are exercisible in 
 the colonial possessions of the Empire, but we may here 
 again observe that those rights are in every portion of the 
 Empire to be exercised according to law, that by express 
 words or necessary intendment, an Act of the Imperial par- 
 liament may either entirely take away from the Crown 
 (if., the executive) a prerogative right theretofore exercise- 
 able by and under the common law without the concurrence 
 of parliament, or may fetter its exercise with any terms or 
 conditions which parliament may derm necessary in the 
 public interest, and that a "confirmed" Act of a colonial 
 legislature is equally effective to those ends so far as con- 
 cerns the exercise of the prerogative right in the colony (<). 
 It will be noticed that the language employed in the Letters 
 Patent, constituting the office of GoVernor-General, recog- 
 ni/es the existence of legal limits to the exercise (even by 
 the sovereign in person) of the prerogative rights therein 
 mentioned. With this perhaps unnecessary caution we 
 proceed to enumerate the prerogatives of the Crown, the 
 
 (') See Chap. VI., antf, p. 13'.t, <( .-<</.
 
 THE GOVERNOR-GENERAL. 165 
 
 power to exercise which in Canada is 1></ <1< r<-<1 
 authority entrusted to the Governor-General. 
 
 I. BY THE LETTERS PATENT, constituting the office of 
 Governor-General, he is authorized and empowered : 
 
 (a) "III ..... To constitute and appoint in our name, 
 and on our behalf, all such judges, commissioners, justices of 
 the peace, and other necessary officers and ministers of our said 
 Dominion, a* /"// I"' lawfully constituted or appointed b>j us. 
 
 "IV ..... So far as ice lawfully may, upon suffi- 
 cient cause to him appearing, to remove from his office or to 
 suspend from the exercise of the same, any person exercising 
 any office ...... " 
 
 The exercise of the prerogative right of the Crown 
 (as the fountain of justice) in the appointment to and 
 removal from office in (7 ;/"/". is now with the exception 
 of this one office of Governor-General entirely regulated 
 by statutes ('.?), Imperial and Colonial, so that it will be 
 necessary to relegate to a future stage the consideration of 
 this branch of a governor's general powers. 
 
 (b) "V ..... To exercise all powers, lawfully bdomjinti 
 to UN, in respect of the summoning, proroguing or dissolving of 
 the parliament of our said Dominion." 
 
 Of these powers in relation to the parliament of Canada, 
 it may be observed that the exercise of the power of ,iam- 
 ,," ml it;/ has been the subject of legislative regulation (e) ; 
 the other two of proroguing and dissolving exist as at 
 common law. The " conventional " limitations are many, 
 the legal right is absolute. For whatever reason, or with 
 whatever want of reason, parliament is prorogued or dis- 
 solved, such prorogation or dissolution puts an end to the 
 session, or the parliament, as the case may be ; and the 
 assembling of the members without new summons would 
 
 (<?) See the opinion of Sir James Scarlett (Lord Abinger) and Sir 
 N. C. Tindal (C.J., C.P.), on the power of the Crown to create the office 
 of Master of the Rolls in Canada (1827) Forsyth, 172. 
 
 ie) B. N. A. Act, 1867, ss. 20 and 38.
 
 166 THE CANADIAN CONSTITUTION. 
 
 be but as the gathering of a mob, and their Acts but as 
 waste paper. 
 
 II. BY HIS "INSTRUCTIONS" (/). 
 
 We need only draw attention to the 5th clause, making 
 provision as to the exercise of the prerogative of j><n'</<>n. 
 The Governor-General is debarred from exercising this pre- 
 rogative without first receiving the advice, in capital cases, 
 of the Privy Council for Canada ; in other cases, of one at 
 least of his ministers ; except in cases where the interests 
 of the Empire, or of some country other than Canada might 
 be directly affected ; in which exceptional cases, the Gover- 
 nor-General shall "take those interests specially into his 
 own personal consideration,. in conjunction with such advice 
 as aforesaid." In other words, in those exceptional cases, 
 he may disregard the advice offered (y): in all other cases 
 he must follow it. 
 
 III. BY THE B. N. A. ACT, 1867. the Governor-General 
 is entrusted with the following prerogatives, and the man- 
 ner of their exercise is to some extent defined. 
 
 A. Appointments to office. 
 
 The vast majority of offices in connection with the 
 government of Canada are filled by persons appointed, 
 under statutory authority, by the Governor-General in 
 Council; but there are still a few offices to which the 
 Governor may legally make appointments without, or even 
 contrary to, the advice of the Queen's Privy Council for 
 Canada, although, of course, the making of such appoint- 
 ments mi' i-o ifix'tn* nn>t<>, would be a flagrant breach of 
 " conventional " usage, a complete subversion of the right 
 of local self-government, long since fully accorded to Can- 
 ada. To give anything like a full enumeration of the 
 
 (/) i.e., the general "instructions" which accompany the Letters 
 Patent ; see appendix. 
 
 ('/) That is to say, he acts in such case as an Impsrial officer, and is 
 supposed to act upon Imperial considerations.
 
 THE GOVERNOR-GENERAL. 167 
 
 former class of offices would necessitate a survey of the 
 entire Civil Service of Canada, But confining our atten- 
 tion to the B. X. A. Act, the only officer therein mentioned 
 in whose appointment the Governor-General and the Privy 
 Council must concur is the Lieutenant-Governor of a Pro- 
 vince. Of his position when appointed much must be here- 
 after said (It), but as to the appointment itself it suffices 
 now to say that it must be made by Order in Council (i). 
 Of the few officers whose appointment, under the B. N. 
 
 A. Act, is in the hands of the Governor-General personally, 
 the following is a complete list : 
 
 1. Members of the Queen's Privy Council for Canada. 
 
 B. N. A. Act, s. 11. In various Acts of the parliament of 
 Canada, provisions are contained as to the appointment of 
 the ministers (or other officers) who shall preside over the 
 various departments of state (j) ; but in all, the appoint- 
 ment is left in the hands of the Governor-General person- 
 ally. This is ex n> <-'-s!t(ite, in the case of a change in the 
 entire administration, but the position is the same in every 
 ca^e the appointment is, l^(/</llf/ rr///x/W, /v//. the act of the 
 Governor-General alone. But there may be, and usually 
 are, members of the Privy Council who hold no portfolio, 
 
 (/<) See notes to sec. 58, B. N. A. Act, post. 
 
 (/') See R. S. C. (1886) c. 19, as to the use of the Great Seal of Canada 
 in the appointment to certain offices. 
 
 (j) Minister of Justice R. S. C. c. 21, s. 1. 
 
 the Interior " c. 22, s. 1. 
 
 Agriculture " c. 24, s. 1. 
 
 " Marine and Fisheries " c. 25, s. 1. 
 
 Secretary of State " c. 26, s. 1. 
 
 Minister of Finance " c. 28, s. 2. 
 
 Auditor General " c. 29, s. 21. 
 
 Minister of Customs " c. 32, s. 3. 
 
 " Inland Revenue " c. 34, s. 2. 
 
 Post-Master General " c. 35, s. 5. 
 
 Minister of Railways and Canals " c. 37, s. 2. 
 
 Public Works " c. 36, s. 3. 
 
 " Militia and Defence " c. 41. s. 4.
 
 168 THE CANADIAN CONSTITUTION. 
 
 and it may be said, therefore, that the power of appointing 
 members of the Privy Council, .simply as such, is fettered 
 by no statutory limitations. 
 
 2. Senators. B. N. A. Act, s. 24. 
 
 3. Speaker of the Senate. B. N. A. Act, s. 34. 
 
 4. Judges. As enumerated in B. N. A. Act, s. 96. 
 
 5. Deputy Governor-General. B. N. A. Act, s. 14, and 
 Letters Patent, clause VI. 
 
 B. The summoning of parliament. 
 
 Reference has already (k) been made to the clause in 
 the Letters Patent constituting the office of Governor- 
 General of Canada, by which the person filling that office 
 is empowered to exercise the prerogatives of the Crown in 
 reference to the summoning, proroguing, and dissolving of 
 parliament ; and it has been pointed out that the only 
 statutory regulation as to the exercise of this prerogative 
 is in reference to the summoning of parliament. Treating 
 the parliament of Canada as one body, the B. X. A. Act 
 provides (I) : 
 
 " There shall be a session of the parliament of Canada once 
 at least in every year, so that twelve months shall not intervene 
 between the last sitting of the parliament in one session, and its 
 first sitting in the next session." 
 
 and there can be no doubt that a Governor-General who- 
 should disregard this imperative provision, even upon the 
 advice of her Majesty's Privy Council for Canada I.e., his 
 Ministers would be guilty of a plain violation of his. 
 duty ; and if it can be imagined that legal damage could 
 be suffered by any individual by reason of such violation of 
 duty, such individual would have a right of action in 
 respect of such damage, in accordance with the principles 
 heretofore laid down (m). The similar provision (>?) 
 necessitating annual sessions of the legislative assemblies 
 
 (k) Ante, p. 165. (I) Sec. 20. 
 
 (m) Ante, p. 158, et seq. (H) B. N. A. Act, sec. 83.
 
 THE GOVERNOR-GENERAL, 
 
 of the provinces of Ontario and Quebec, has, as we write, 
 been disregarded by the Lieutenant-Governor of the latter 
 province, but the bitterness there of contending factions is 
 such that it is hardly possible to discuss this matter 
 further now, without appearing to advocate a party's 
 cause. 
 
 Treating now the parliament of Canada as composed of 
 three branches the Crown, the Senate, and the House of 
 Commons (o) attention must be drawn to the difference 
 in the duration of the life of the respective branches. 
 The Crown and the Senate are immortal branches, while 
 the House of Commons might be more aptly termed the 
 foliage of parliament, appearing and disappearing, some- 
 times in quick revolving se'asons (as in the Antipodean 
 Colonies), but, at the longest, in quinquennial recur- 
 rences (y>). The analogy holds even more fully, for as a, 
 tree grows and does effective work only when clothed with 
 foliage, so parliament requires for the effective exercise of 
 its functions the magic call of gubernatorial spring, sum- 
 moning the murmuring leaves of the Commons into legis- 
 lative being. 
 
 Analogies aside, the result of this marked distinction in 
 the constitution of the various branches of parliament is 
 apparent in the B. N. A. Act, in the absence of any provi- 
 sion for the calling together of the members of the Senate, 
 while it is expressly enacted : 
 
 " 38. The Governor-General shall from time to time in the 
 Queen's name, by instrument under the Great Seal of Canada, 
 summon and call together the House of Commons." 
 
 This section however would seem to carry the governor's 
 powers 110 further than the Letters Patent alone would 
 have carried them, and therefore, as said by Dr. Bourinot : 
 " The summoning, prorogation, and dissolution of parlia- 
 ment in Canada, are governed by English constitutional 
 usage. Parliament can only be legally summoned by 
 
 (o) B. N. A. Act, sec. 17. (p) B. N. A. Act sec. 50.
 
 170 THE CAXADIAX CONSTITUTION. 
 
 authority of the Crown." After the expiry of the House 
 of Commons by lapse of time or dissolution, there must be 
 a new House elected by the people according to law, before 
 there can be an effective exercise of the prerogative right 
 to summon parliament ; and we may here note that in con- 
 nection with such election certain powers are vested in the 
 Governor-General and certain duties imposed upon him by 
 Canadian legislation, in the exercise of which he, in con- 
 templation of law, acts personally. Upon him devolves 
 the duty of fixing the date for the holding of such election 
 the rule is the same as to bye-elections and by him the 
 returning officer for each electoral district is appointed (q). 
 This however by the way. The House of Commons being 
 so elected, parliament can meet together for the despatch of 
 business only upon the summons of the Governor-General. 
 It is worthy of note that this word, " summon," is used in 
 the B. N. A. Act, in reference to the appointment of sen- 
 atoi-s (r), and that, as has been said, there is no legislative 
 
 \ / ' O 
 
 regulation of the method by which the Senate is called 
 together for the despatch of business ; while in relation to 
 the House of Commons the word is used to indicate the 
 annual calling together of the elected members of the 
 House for the exercise of their functions. As a matter of 
 usage (in conformity with the English practice) the instru- 
 ment by which the Governor-General summons the House 
 of Commons, viz., a proclamation under the Great Seal, is 
 addressed to both senators, and members of the House of 
 Commons. 
 
 C. Tin- exercise f fl" />i-fi'i>i/<itive right* <>f flic Crown 
 
 <lx ,l rnnxf'itto-iit !>/<!, irli of tin P<i A'nl ,, ,i f nf 
 
 This matter has been fully dealt with in the last chap- 
 ter, and we need not therefore dwell further upon it here. 
 
 (q) R. S. C. c. 8, s. 3. (r) a. 24.
 
 THE GOVERNOR-GENERAL. 171 
 
 D. The disallowance of Provincial Acts. 
 
 No prerogative right of the Crown is more firmly estab- 
 lished than the right to supervise the legislative enactments 
 of all minor legislative bodies the right is indeed but the 
 logical result of the rule that the Crown is a constituent 
 
 CT 
 
 part of every legislative body throughout the Empire (s). 
 Even should a Governor " thereunto lawfully authorized" 
 assent in the Queen's name to an Act of a colonial legisla- 
 ture, there is by the common law of England a reserved 
 power in the Crown to repudiate the action of the Crown's 
 officer in the colony and to disallow such Act. In the case 
 of Canada, the exercise of this prerogative must, to be 
 legally effective, take place within two years after the 
 receipt of the Act by the Secretary of State for the 
 colonies (t ): but the right once exercised in the method 
 pointed out by the statute, and such exercise being duly 
 signified " here, the Act, so disallowed, is absolutely an- 
 nulled " from and after the day of -such signification." Itj 
 is to be noticed, however, that this power of disallowance! 
 cannot be legally exercised by the Queen personally, but] 
 only by and with the advice of her Privy Council. 
 
 With regard, however, to Acts of the legislative assem- 
 blies of the different provinces of the Dominion, the right 
 to exercise this prerogative has been taken away from the 
 Queen in Council, and is by the B. N. A. Act (n) conferred 
 on the Governor in Council a matter frequently adverted 
 to. as indicating the very extended rights of self-govern- 
 ment accorded to Canada. Much must be said hereafter 
 with reference to this power, and the proper "conventional" 
 limits within which it should be exercised ; but viewing it 
 from the standpoint of the legal efficacy of its exercise, it 
 would appear clear that, the Governor-General and the 
 
 (s) Chitty, p. 25; see. Chap. VI. ante, p. 138; Theberge v. Landry, 
 2 App. Cas. 102 ; see notes to s. 69 B. N. A. Act, post, 
 (t) B. N. A. Act, s. 56. 
 () Sec. 90, read in connection with ss. 55, 56, and 57.
 
 172 THE CANADIAN CONSTITUTION. 
 
 Privy Council concurring in such disallowance and exer- 
 cising their power in the manner and within the time indi- 
 cated in the statute, no provincial Act is legally exempt 
 from the operation of this prerogative of disallowance. 
 
 This is, perhaps, the proper place to advert to a glaring 
 error glaring to us in Canada at least into which Prof- 
 Dicey has fallen in the work to which we have frequently 
 referred (r) a work which, in its elucidation of the prin- 
 ciple of the xuprenuicy ofhiw,as the fundamental principle 
 of Anglo-Saxon government the world over, stands to-day 
 ftn-'ili' i>i'i iirt'ftx; but which, in its references to the colonies 
 generally and to Canada in particular, displays a strange 
 lack of appreciation of the true position of affairs (w). To 
 confine our attention, however, to this particular error 
 Prof. Dicey is completely astray in laying it down, that the 
 lodging of this veto power in the hands of the Governor- 
 General in Council 'i.e., with the Dominion Government, 
 
 
 was intended to obviate the necessity for resort to the 
 courts, for the decision of "constitutional" cases involving 
 the determination of the line of division between the sphere 
 of authority of the Dominion parliament and that of a pro- 
 vincial assembly. 
 
 "The futility of a hope grounded on a misconception of 
 the nature of federalism,'' is a pretty strong expression, and 
 contains a very direct charge that the Fathers of Confedera- 
 tion did not know what they were about in this matte] 1 . 
 One who, like Prof. Dicey, speaks with authority, should 
 not have penned such a grave charge without first consult- 
 ing the debates which took place in the various legislatures 
 upon the "Confederation Resolutions." Had he done so, he 
 would have found that a vrry sharp line of distinction was 
 drawn between the exercise by the Dominion government, 
 us a nttiHi'i- <>f jut/if ten! c rfirillt /"//, of the power of dis- 
 allowance of provincial Acts, and the exercise by the courts 
 
 (v) " The Law of the Constitution." 
 
 (ic) See note at end of this chapter. And see Chap. I. tint?.
 
 THE OOYEHXOH-UEXERAL. 173 
 
 of tin jmlirnil function of declaring an Act ttr<i vires. 
 As expressed by the Chancellor of Ontario, in a recent 
 cast- ( /). the supervision, touching; provincial legislation, 
 entrusted to the Dominion government, works in the plane 
 of political expediency as well as that of jural capacitj*, 
 while the question for the courts is as to the latter merely. 
 The IVaining of the Quebec Resolutions, upon which the B. 
 X. A. Act is founded, was the work of the most eminent 
 legal minds of that day in Canada: and a glance at the 
 debates upon those Resolutions will show that they 
 thoroughly appreciated the distinction, pointed out in these 
 later days by the Chancellor. Throughout the debates, it 
 was clearly recognized that the exercise by the Dominion 
 government of the power of disallowance, was to be exer- 
 cised in support of federal unity, r.fj., to preserve the 
 minorities in different parts of the confederated provinces, 
 from oppression at the hands of the majorities. That it 
 was not intended to obviate the necessity for resort to the 
 courts, is apparent from the following extract. Complaint 
 was made that while the Dominion government was 
 invested with this rrfu power, no authority was provided 
 to supervise its exercise : and the question was further 
 asked, what check will there be upon Dominion legisla- 
 tion ? The speaker (y) presumed, for the purpose of his 
 argument, that in each of these cases, the only check 
 would be through the Imperial government. 
 
 " Hox. ATTORNEY-GENERAL CARTIER. The delegates under- 
 stood the matter better than that. Neither the Imperial govern- 
 ment nor the general government will interfere, but the courts 
 of justice will decide all questions in relation to which there 
 may be differences between the two powers. 
 
 " A VOICE. The Commissioner's courts ! 
 
 " HON. MR. DORION. Undoubtedly. One magistrate will 
 decide that the law passed by the federal legislature is not law, 
 
 I j-l Atty.-Genl. (Can.) v. Atty.-Genl. (Ont.),20 O. R. at p. 245. 
 
 (//) Hon. A. A. Porion ; afterwards Sir A. A. Dorion, Chief Justice of 
 Quebec. See Confed. Deb. p. 690.
 
 174 THE CANADIAN CONSTITUTION. 
 
 whilst another will decide that it is law, and thus the difference, 
 instead of being between the legislatures, will be between the 
 several courts of justice. 
 
 " HON. ATTORNEY-GENERAL CARTIER. Should the general 
 legislature pass a law beyond the limits of its functions, it will 
 be null and void, i>len jtir,'. 
 
 " HON. MR. DORION. Yes, I understand that ; and it is 
 doubtless to decide questions of this kind that it is proposed to 
 establish federal courts." 
 
 The fact is that the power of disallowance vested in 
 the Governor-General in Council, is precisely analagous to 
 the power of disallowance vested in the Queen in Council 
 over Dominion legislation. The power in each case is 
 subject to the limitations presented by those " conventions 
 of the constitution " to which Prof. Dicey so frequently 
 refers. An act of the Dominion parliament may run the 
 gauntlet of the home government, and yet be afterwards 
 declared by the courts to be invalid. As is well known, 
 the supervision exercised by the law officers of the Crown 
 in England, is directed to seeing that any colonial Act, 
 submitted for their consideration, is not repugnant to any 
 Imperial legislation : and they do not pretend to examine 
 Dominion Acts in order to determine the question of their 
 validity, as being within the range of subject matters con- 
 tided to the parliament of Canada by section 91 of the 
 B. X. A. Act. And with regard to the disallowance by 
 the governor in council of provincial Acts, the exercise of 
 this power by reason of the provincial Act being thought 
 ultra vires, has almost entirely ceased, and the supervision 
 now works almost exclusively "in the plane of political 
 expediency." 
 
 Note to p. 172 ante. The first chapter of Prof. Dicey 's book " On the 
 Nature of Parliamentary Sovereignty" contains nothing which might 
 not be, with equal truth, said of the legislative bodies throughout 
 Canada. What he writes at p. 58 in disproof of " the alleged legal 
 limitations on the legislative sovereignty of parliament," namely, 
 limitations arising out of the precepts of the moral law. the prerogatives 
 of the Crown, and the binding effect upon parliament of preceding Acts
 
 THE GOVERNOR-GENERAL. 175 
 
 of parliament is all equally applicable to the position of Canadian 
 legislatures. And with reference to them, too, it may be said, that there 
 is no competing legislative power either in the Crown, in either branch 
 of the legislature (where the legislature happens to be bicameral), in the 
 constituencies, or in the law courts. 
 
 The second chapter "is to illustrate the characteristics of such 
 sovereignty, by comparing the essential features of a sovereign parlia- 
 ment like that of England, with the traits that mark non-sovereign law- 
 making bodies," among which he classes colonial legislatures. Yet, on 
 a later page (105) he lays it down : 
 
 " When English statesmen gave parliamentary government to the 
 colonies, they almost, as a matter of course, bestowed upon colonial 
 legislatures, authority to deal with every law, whether constitutional or 
 not, which affected the colony, subject, of course, to the proviso, rather 
 implied than expressed, that this power should not be used in a way 
 inconsistent with the supremacy of the British parliament. The 
 colonial legislatures in short are, within their own sphere, copies of the 
 Imperial parliament. They are, within their own sphere, sovereign 
 bodies, but their freedom of action is controlled by their subordination 
 to the parliament of the United Kingdom." 
 
 To charge the men who had in hand the framing of the scheme 
 of confederation, with " misconception of the nature of federalism " 
 comes with rather bad grace from Prof. Dicey. He speaks (p. 133) 
 of a federal state as " a political contrivance intended to reconcile 
 national unity and power with the maintenance of ' state rights.' " The 
 end aimed at," he says, "fixes the essential character of federalism." A 
 very clear statement this ; and yet, the Professor apparently fails to 
 note that ' state rights ' may be paraphrased and generalized as ' local 
 self-government,' and that his definition of federalism is clearly appli- 
 cable to those " conventions " of the British constitution which regulate 
 the relations between Great Britain and her colonies. We might refer, 
 too, to another passage in which he is historically inaccurate. He treats 
 (page 144) the division of power between the legislative and executive 
 departments of government, under the American system, and the 
 restrictions, which appear in their " Constitution," upon interference 
 with individual rights, as being part and parcel of " connected with "- 
 the same federal idea of division. In this he is clearly astray. Several 
 of the constitutions which existed in the individual states prior to the 
 adoption of "the Constitution of the United States," exhibit both these 
 characteristics the first, because that was thought to be the English 
 principle, and the second, because of the prevalence then of the doctrines 
 of Rousseau and Montesquieu.
 
 CHAPTER IX. 
 
 COLONIAL LEGISLATIVE POWER. 
 
 We have now pointed out that, in common with other 
 British colonies, legislative power in Canada is subject to 
 certain limitations, arising from the colonial relationship. 
 Not only must the assent of the Crown as a constituent 
 branch of the legislature be given (): the Act so assented 
 to must run the gauntlet of the Home Government (</); 
 having done so, it ma}' still, by judicial decision, be declared 
 absolutely void and inoperative by reason, and to the ex- 
 tent, of its " repugnancy " to Imperial legislation having 
 the force of law in Canada (/>). 
 
 Much must be hereafter said in reference to the division, 
 in Canada, of the subject matters proper for legislative 
 action, between the parliament of Canada on the one hand, 
 and the legislative assemblies of the respective provinces 
 on the other: but for the purpose of the enquiry to which 
 this chapter is to be devoted, this division of the field may 
 lie disregarded. We desire to treat of the power of legisla- 
 tion as a totality, and to ascertain what, if any, further 
 bounds are set to that power in this British colony. 
 
 It may lie argued that this question is settled by the 
 Colonial Laws Validity Act, l<S(io (/), and that as any 
 colonial law is to be held inoperative to the extent of its 
 
 I") See Chap. VII. ante, p. 147. (b) See Chap. IV. ante, p. 58, et sen. 
 (c) 28 & 29 Vic. c. 63 (Imp.).
 
 COLONIAL LEGISLATIVE POWER. 177 
 
 repugnancy, bat not oili<'i' <!>-<', it impliedly follows that all; 
 colonial laws not open to the charge of repugnancy must 
 be held operative, and that therefore the power of legisla- 
 tion is subject only to the limitations already adverted to 
 as full as that of the Imperial parliament, and that 
 colonial laws are equally obligatory on courts of justice. 
 But a proposition formerly (d) laid down must not be over- 
 looked ; namely, that in the last analysis our rights, legally 
 speaking, are held under Imperial grant, and to our right 
 to legislate this proposition is particularly applicable. In 
 other words, we must always refer to the colonial "Charter" 
 proclamation, commission, or Imperial Act containing 
 the grant of legislative power, to ascertain its extent ; and 
 beyond the limits therein laid down, the power cannot 
 extend. For us, this Charter is the B. X. A. Act, and the 
 terms of the grant are of the widest possible description 
 (saving always Imperial sovereignty), and subject to the 
 division of the Held between the Dominion and the pro- 
 vinces and subject always to the checks to which we have 
 referred the power of legislation is supreme in relation to 
 all matters within the limits of colonial legislative power. 
 This principle is fully recognized in the judgment of the 
 Judicial Committee of the Privy Council in a case involving 
 consideration of the position of the Legislature in India 
 Queen v. Burah (e). Lord Selbome, delivering the unani- 
 mous opinion of the Committee, referred to the judgment of 
 the court below, as in effect treating the Indian Legislature 
 as an agent or delegate, acting under a mandate from the 
 Imperial parliament, and dissented from that judgment in 
 the following forcible language : 
 
 " But their Lordships are of opinion that the doctrine of the 
 majority of the court is erroneous, and that it rests upon a 
 mistaken view of the powers of the Indian Legislature, and 
 indeed of the nature and principles of legislation. The Indian 
 Legislature has powers expressly limited by the Act of the Im- 
 perial parliament which created it, and it can, of course, do 
 
 (rf) Chap. IV. ante, p. 56. (e) L. R. 3 App. Gas. <I04. 
 
 CAN. CON. 12 

 
 178 THE CANADIAN CONSTITUTION. 
 
 uotliing beyond the limits which circumscribe these powers. 
 But when acting within those limits, it is not in any sense an 
 agent or delegate of the Imperial parliament, but has, and was 
 intended to have, plenary powers of legislation, as large, and. of 
 the same nature, as those of Parliament itself. The established 
 courts of justice when a question arises whether the prescribed 
 limits have been exceeded, must of necessity determine that_^ 
 question ; and the only way in which they can properly do so, is 
 by looking to the terms of the instrument by which, affirma- 
 tively, the legislative powers were created, and by which, 
 negatively, they are restricted. If what has been done is legis- 
 lation within the general scope of the affirmative words which 
 give the power, and if it violates no express condition or restric- 
 i ion by which that power is limited (in which category would of 
 course be included any act of the Imperial parliament at variance 
 with it) it is not for any court of justice to inquire further, or 
 to enlarge constructively those conditions and restrictions" (/). v 
 
 In an earlier case in the Court of Queen's Bench, and 
 afterwards, on appeal, in the Exchequer Chamber the 
 -.UK*.- r,-///>;v of Phillips v. Eyre (ry) the judges of those 
 courts had to consider the position and powers of a colonial 
 legislature, and the extent of the operation of colonial 
 enactments. As a defence to the action, which was brought 
 in England, for trespasses alleged to have been committed 
 in Jamaica, the defendant, governor of the island, pleaded 
 an Act of Indemnity passed by the Jamaica Legislative 
 Assembly. The plea was demurred to. and the question 
 was thus raised, (1) as to the power of the colonial assembly 
 to i-a-v- aii Act of Indemnity, and (2) as to the extra terri- 
 torial operation of that Act. For the defendant it was 
 argued that by the law of England the legislature of a 
 colony is supreme within the boundary of the colony : that 
 the courts in this country are bound to recognize the laws 
 
 ( f) Compare the language of Marshall, C.J., in McCulloch v. Mary- 
 land, 4 Wheat. 421 (United States S. C. Rep.), quoted at p. 92 of the 
 Mich. University Lectures of 1880, published -'<'/ tit. "Const. Hist, as 
 seen in American La\v." 
 
 (/) L. E. in. B. -225: > Q. B. 1.
 
 COLONIAL LEGISLATIVE POWER. 179 
 
 which the colonial legislature make as part of the English 
 law : that the Crown may refuse its consent to a colonial 
 Act ; the Imperial parliament may interfere, and the laws 
 which the colonial legislature make must not be " repug- 
 nant " to the law of England, as that word is explained in 
 2<s ,v 29 Vic. c. 63 ; but, subject to those qualifications, the 
 laws passed by the colonial legislature and made with 
 reference to acts committed within their jurisdiction, are as 
 binding as the laws of the Imperial parliament ; that Eng- 
 lish courts recognize them, not through international 
 courtesy, "but because they must be taken to be part of the 
 law of England (h) ; and that it may well be, that the 
 colonial legislature have no power to take away a remedy 
 from a British subject, but they may discharge a cause of 
 action which has accrued within the limits of their terri- 
 tory. 
 
 In delivering the unanimous judgment of the Court of 
 Queen's Bench, Chief Justice Cockburn says: 
 
 " It cannot be disputed that the Jamaica 
 
 Legislature, having full legislative authority within the limits of 
 the colony, subject only to the assent of the Crown, had full 
 power to pass the statute in question, so far as to take away the 
 right of action before the local tribunals .... but it is 
 contended on the part of the plaintiff, that a right of action 
 being given before the courts here, in respect of personal 
 wrongs committed in a colony, this right cannot be taken away 
 by an Act 'having no legislative effect beyond the limits of the 
 
 local authority It may be useful to consider what 
 
 would have been the effect if, instead of legislating ex post facto, 
 the Legislature of Jamaica in anticipation of future events, Lad 
 passed a statute authorizing the acts which have given rise to this 
 action. We cannot doubt that in such a case, no right of action 
 
 would arise here It remains to be seen how far 
 
 this principle will apply where an act, admitted to have been 
 unlawful when done, is legalized and divested of its tortious 
 character, and immunity is afforded to the wrongdoer in respect 
 
 (li) See Redpath v. Allen, cited post.
 
 180 THE CANADIAN CONSTITUTION. 
 
 of it, by e.r j>oxtf<irtn legislation We are, however, 
 
 of opinion that the same principle which we have stated to be 
 applicable to an act made lawful by former legislation, is equally 
 applicable to an act originally wrongful, but legalized by ai> 
 e.v pout facto law. Local Legislatures having been established iu 
 our colonies with plenary powers of legislation, the same comity 
 which obtains between nations, should be extended to them by 
 the tribunals of this country, when their law conflicts with ours, 
 in respect of acts done within their jurisdiction. . . . Plenary 
 power to make laws having been conferred on the local legis- 
 lature, subject to the assent of the sovereign, it cannot be 
 disputed that it was within its competence to pass the law 
 referred to in the plea, and the only question is, whether the 
 effect of it is to deprive the plaintiff of the right which he would 
 otherwise have had, of maintaining an action in this country. 
 For the reasons we have given, we are of opinion that such is its 
 effect, and consequently that on the demurrer to the plea, our 
 judgment must be for the defendant." 
 
 In the Exchequer Chamber (i), the court was a^ain 
 unanimous, and Mr. Justice Willes, in delivering the judg- 
 ment of the seven judges of which the court was compos* <!_ 
 says: 
 
 " It seems to be plainly within the competence of the legis- 
 lature, which could have authorized by antecedent legislation the 
 acts done as necessary or proper for preserving the public peace, 
 upon due consideration of the circumstances to adopt and ratify 
 like acts when done, or in the language of the law under 
 consideration, to enact that ttiey shall be ' made and declared 
 lawful and confirmed.' Such is the effect of the Act of Indem- 
 nity in question, which follows the example of similar legislation 
 in the mother country, and the other dominions and colonies of 
 
 the Crown The Crown has in numerous instances 
 
 granted charters under which houses of assembly, and legislative 
 councils, have been established for the government of colonies, 
 whether conquered or settled ; and such councils and assemblies 
 have from time to time made laws suited to the ' emergencies 
 
 (;, L. R. Q. B. 1. Counsel for the plaintiff referred to the B. N. A. 
 Act as conferring supreme powers.
 
 COLONIAL LEGISLATIVE POWER. 181 
 
 of the colony,' which, of course, include all measures necessary 
 for the conservation of peace, order and allegiance therein. . 
 subject to the approval of the Crown, and the control of the 
 
 Imperial legislature We are satisfied that a \ 
 
 confirmed Act of the local legislature lawfully constituted, 
 whether in a settled or conquered colony, has as to matters 
 within its competence, and the limits of its jurisdiction, the 
 operation and force"fcf sovereign legislation, though subject to 
 be controlled by the Imperial parliament." 
 
 The subsequent passages in the judgment distinctly 
 affirm that colonial legislation will be given effect to by 
 English Courts on the same principle of comity as induces 
 those courts to recognize foreign law. 
 
 The same views are expressed in the opinions of the 
 judges of the Court of Appeal for Ontario in a case which 
 came before them in 1872 (j). It may be observed that 
 their remarks, although made in reference to an Act of the 
 Legislative Assembly of Ontario, are at" least equally 
 applicable to legislation by the parliament of Canada upon 
 .subjects within its legislative competence. The question 
 which arose for decision was as to the power of the Ontario 
 legislature to pass an Act confirming and validating, as 
 against infants, a deed of settlement made by trustees under 
 a will, the contention being that such legislation had the 
 effect of depriving one man of his property and giving it to 
 another. Draper, C.J.,uses very clear and emphatic language 
 > to the right of the Local legislature to pass private Acts : 
 
 "As in Englaud, it is a settled principle that the legislature 
 is the supreme power, so in this province, I apprehend that within 
 the limits marked out by the authority which gave us our pre- 
 sent constitution, the legislature is the supreme power. It is on 
 this principle that private Acts of parliament are upheld as 
 common modes of assurance, being founded upon the actual or 
 
 implied assent of those whose interests are affected 
 
 I think nothing is to be gained by a theoretical distinction, which 
 has been suggested, between the authority of the legislature to 
 
 U) Re Goodhne, 19 Grant, 306.
 
 182 THE CANADIAN CONSTITUTION. 
 
 pass laws upon certain subjects, and the right to exercise that- 
 power as they may deem fitting. Whether it be called a power 
 or a right, it comes to the same thing; since though our legis- 
 lature is limited by the Constitutional Act to certain defined sub- 
 jects, the Act imposes no limit to the exercise of the power on 
 those subjects. ... If the new law be within the class of 
 subjects committed to the provincial legislature, I know of no 
 authority in provincial tribunals to refuse to give it effect, apply- 
 ing to its language the same rules of construction that are appli- 
 cable to any other statute passed by competent authority." 
 
 The same question and again in reference to the legisla- 
 tive power of a Provincial Assembly came before the 
 Judicial Committee of the Privy Council in the celebrated 
 case of Hodge v. The Queen (k\ The Committee very 
 emphatically re-affirmed the doctrine laid down in Queen v. 
 Burah (I), and held that the provincial legislature was 
 within its powers, in entrusting to a Board of License 
 Commissioners, authority to enact regulations in reference 
 to taverns and billiard-rooms in connection therewith, and 
 thereby to create offences and annex penalties. The ques- 
 tion was thus disposed of : 
 
 It appears to their lordships, however, that the objection 
 raised by the appellants, is founded on an entire misconception 
 of the true character and position of the provincial legislatures. 
 They are in no sense delegates of, or acting under any mandate 
 from the Imperial parliament. . ; . The B. N. A. Act con- 
 ferred powers not in any sense to be exercised by delegation from, 
 or as agents of, the Imperial parliament, but authority as 
 plenary and as ample within the limits prescribed by section 92,. 
 as the Imperial parliament in the plenitude of its power possessed 
 and could bestow. Within these limits of subjects and area, the 
 local legislature is supreme, and has the same authority as the 
 Imperial parliament, or the parliament of the Dominion would 
 have had under like circumstances to confide to a municipal 
 institution or body of its own creation, authority to make by-laws 
 | or resolutions as to subjects specified in the enactment, and with 
 ' the object of carrying the enactment into operation and effect. It 
 
 (*) 9 App. Gas. 117. (/) ante, p. 177.
 
 COLONIAL LEGISLATIVE POWER. 183 
 
 is obvious that such an authority is ancillary to legislation, and 
 without it an attempt to provide for varying details, and 
 machinery to cany them out, might become oppressive or abso- 
 lutely fail It was argued at the bar, that a legis- 
 lature committing important regulations to agents or delegates, 
 effaces itself. That is not so. It retains its powers intact, and 
 can, whenever it pleases, destroy the agency it has created, and 
 set up another, or take the matter directly into its own hands. 
 How far it shall seek the aid of subordinate agencies, and how 
 long it shall continue them, are matters for each legislature and 
 not for courts of law to decide." 
 
 In the still more recent case of Powell v. Apollo Candle 
 Co. (m), the Judicial Committee of the Privy Council ex- 
 pressed their continued adherence to the opinions laid down 
 in the earlier cases to which we have referred. 
 
 The power of the Dominion parliament to legislate for 
 the peace, order, and good government of the North-West 
 Territories (conferred by 34 & 35 Vic. c. 28, Imp.), was held 
 to be the same plenary power of legislation as is possessed 
 by the Imperial parliament (n). 
 
 Applying, then, the rule so clearly laid down by Lord 
 Sel borne in the earlier case (o), we have to look to those 
 terms of the B. X. A. Act : 
 
 1. By which, affirmatively, the legislative powers are 
 created. 
 
 2. By which, negatively, they are restricted ; 
 
 and we have to note that affirmatively the legislative 
 power is of very wide range, namely, to "make laws in 
 relation to " the various matters enumerated in the Act, 
 and that of express negative restriction there is no sign 
 within the four corners of the Act. 
 
 But as we are a Dominion "under the Crown of the 
 United Kingdom " (p), there must be in any Canadian 
 
 (m) 10 App. Cas. 282. 
 
 (n) Kiel v. Reg., 10 App. Cas. G75 ; see p)st. (o) ante, p. 178. 
 
 (/>) See preamble to B. N. A. Act and n^tes thereto, put.
 
 1S4 THE CANADIAN 0'. INSTITUTION'. 
 
 legislation a saving of the sovereignt}' of England. In the 
 Quebec Resolutions, upon which the B. N. A. Act is found -.1. 
 this restriction is express (q} : but in the Act itself it was 
 no doubt deemed unnecessary to insert any words of exj 
 restriction upon this point, as it is an implied restriction 
 upon all colonial legislation (r). In a very early case (s), 
 Chief Justice Vaughan, under the heading " What the par- 
 liament of Ireland cannot do," says : 
 
 1. It cannot alien itself, or any part of itself, from b ing 
 under the dominion of England ; nor change its subjection* 
 
 2. It cannot make itself not subject to the laws of and 
 subordinate to the parliament of England (t). 
 
 3. It cannot change the law of having judgments there 
 given, reversed for error in England ; and others might be 
 named (u). 
 
 4. It cannot dispose the Crown of Ireland t > the King 
 of England's second son, or any other but to the King of 
 England. 
 
 And in a Canadian case it is laid down, that legislation 
 inconsistent with its relation to the Empire of which it 
 forms a part, would be " unconstitutional " and void (>). 
 
 The second and third propositions laid dowii by Chief 
 Justice Vaughan, have been already discussed, with the 
 exception of the question as to the prerogative right of the 
 Crown to hear, in the Privy Council appeals from Colonial 
 judgments : this must be dealt with hereafter. Prop >-iti >ns 
 1 and 4 relate no doubt to extreme cases, which can hardly 
 arise in this age, but there are many matters in respect to 
 
 (q) Resolution No. _'.'. () Dicey ' Law of the Const.' in.".. 
 
 (s) Cra\v v. Ramsay, Vau<;h. '2'.'<'2. (t) See Chap. IV. ant- 1 . 
 
 () i.e., it cannot legislate in reference to the prerogative right of the 
 Crown to hear and determine appeals from colonial courts ; or change 
 a law of express colonial application. 
 
 (r) International Bridge Co. v. Can. Southern Ry., '2s Grant, at 
 p. 134; see also Tally v. Principal Officers of H. M. Ordnance, o T'. (.'. 
 Q. B. 6.
 
 COLONIAL LEGISLATIVE POWER. 185 
 
 which we possess no legislative power because its exercise 
 would be a usurpation of sovereignty in its international 
 sense (iv). 
 
 There is a further implied restriction upon our legisla- 
 tive power, viz., that by the very terms of the grant that 
 power is territorially limited (x): and this branch of our 
 subject is of so much importance that we must give it 
 careful attention (?/). It will help to a solution of our 
 problem if we consider, first, the legislative powers, - 
 territorially considered of the Imperial parliament. That 
 body is the authorized exponent of the will of the nation 
 in its international sense, and so far as other nations 
 are concerned, its enactments are of course inoperative 
 beyond the borders of the Empire, including within 
 those borders, the " floating islands " of the British 
 navy and mercantile marine (z). In a work of recog- 
 nized authority (((), certain canons of construction are laid 
 down as applicable to Imperial statutes, which may be 
 .shortly stated. Pr'i'mo facie, enactments of the parliament 
 of the United Kingdom are operative only within the 
 United Kingdom, and do not extend to the colonies (b), 
 nor to British .subjects (nor, a fortiori, to foreigners) out 
 of the United Kingdom (c) : unless there is the intention 
 " clearly expressed or to be inferred either from its 
 
 () Sae B. N. A. Act, ss. 9 and 132. 
 
 (x) See 9 App. Cas. 117, passage quoted ante, p. 182. 
 
 ((/) No text writer gives this matter more than a passing notice. See 
 Dicey. '-Law of the Const." p. 97, note (3). 
 
 (z) Reg. v. Anderson, L. R. 1 C. C. R. 161 ; Reg. v. Carr, L. R. 10 
 Q. B. D. 76. 
 
 (a) Maxwell, " The Interpretation of Statutes," Chap. VI. 
 
 (b) See Chap. IV. ante, p. 57, et seq. 
 
 (c) Arnold v. Arnold, 2 Myl. & Cr. at p. 270; Jeffreys v. Boosey, 4 
 H. L. Cas. 815; Cope v. Doherty, 2 DeG. & J. 614; ex parte Blain, L.R 
 12 Chy. D. 522. Laws as to \ rocednre in actions, including the limita- 
 tion of a time within which proceedings are to be taken leges fort are 
 of course binding on all litigants, subjects or foreigners; Lopez v Burs- 
 Jem, 4 Moo. P. C. 405.
 
 186 THE CANADIAN CONSTITUTION. 
 
 language or from the object or subject matter or history of 
 the enactment " (//) The Colonial Laws Validity Act, LS<>.~>. 
 gives the canon of construction in reference to Imperial 
 enactments which are to be held to extend to a colony 
 there must be the " express words or necessary intendment " 
 of the Act. But in any case, if the language of an Imperial 
 Act of parliament, unambiguously and without reasonably 
 admitting of any other meaning, applies to foreign' 'is 
 abroad, courts of justice, the Empire over, must obey and 
 administer it as it stands, for they cannot question the 
 authority of the Imperial parliament or assign any limits s~ 
 to its powers (e). The entire ground would seem to be 
 covered by the language of Brett, J., in delivering judgment 
 in a late English case (/) : 
 
 " General words in a statute, have never, so far as I am 
 aware, been interpreted so as to extend the action of the statute 
 beyond the territorial authority of the legislature. All criminal 
 statutes are in their terms general ; but they apply only to 
 offences committed within the territory, or by British subjects. 
 When the legislature intends the statute to apply beyond the 
 ordinary territorial authority of the country, it so states expressly 
 in the statute, as in the Merchant Shipping Act, and in some of 
 the Admiralty Acts. If the Legislature of England, in express 
 terms, applies its legislation to matters beyond its legislatorial 
 capacity, an English court must obey the English legislature, 
 however contrary to international comity such legislation may 
 be. Bat unless there be definite express terms to the contrary,* 
 the statute is to be interpreted as applicable, and as intended to/ 1 
 apply only to matters within the jurisdiction of the legislature b)| | 
 which it is enacted." 
 
 but we may be allowed to quote also fi.'om the, opinions of 
 
 (d) Maxwell, 169-70; The Sussex Peerage Case, 11 Cl. & F. at p. 146; 
 Jeffreys v. Boosey, 4 H. L. Cas. 815 ; Brook v. Brook. 9 H. L. Gas. 193 ; 
 Cope v. Doherty, 2 DeG. & J. 614. And see R3._'. v. Keyn, L. R. 2 Ex. 
 D. 63 ; Routledge v. Low, L. R. 1 Cliy App. 4'2, HE. cV I. App. 113 : Atty.- 
 Genl. of Hong-Kong v. Kwok-a-Sin, L. R. 5 P. C. 108. 
 
 If) Maxwell, 179-^0. 
 
 (/) Nibayet v. Niboyet, L. R. 4 P. D. at pp. 19-20.
 
 COLONIAL LEGISLATIVE POWER. 187 
 
 two very eminent English Judges, who in succession, 
 occupied the position of Lord Chief Justice of England 
 in a very celebrated case arising out of the sinking of the 
 English steamer " Strathclyde " by the German steamer 
 " Franconia," off Dover, in 1876 (</). Chief Justice Cole- 
 ridge says : 
 
 ; ' I do not of course forged that it is freely admitted to be 
 within the competency of parliament to extend the realm how 
 far so ever it pleases to extend it by enactments, at least so as 
 to bind the tribunals of the country." 
 
 Chief Justice Cockburn says : 
 
 Now no proposition of law can be more incontestable, or 
 more universally admitted, than that, according to the general 
 law of nations, a foreigner though criminally responsible to the 
 law of a nation not his own, for acts done by him while within 
 the limits of its territory, cannot be made responsible to its law 
 for acts done beyond such limits. ... This rule must \ 
 however be taken subject to this qualification, namely, that if / 
 the legislature of a particular country should think fit, by express ; 
 enactment, to render foreigners subject to its law, with reference 
 to offences committed beyond the limits of its territory, it 
 would be incumbent on the courts of such country to give effect 
 to such enactment, leaving it to the state to settle the question 
 of international law with the governments of other nations." 
 
 From these authorities, we may conclude that if the 
 Imperial parliament should enact that any person, British 
 subject or foreigner, committing such-and-such an act 
 abroad, should, if found within British territory, suffer, 
 upon conviction, a certain punishment (A); or that, in decid- 
 ing a civil action in respect to contracts made abroad, to 
 be performed abroad, English law should govern ; there is 
 on doubt, every British court of justice would be obliged to 
 
 (0) Reg. v. Keyn, L. R. 2 Ex. D. 63, at p. 152 and p. 160. 
 
 (/i) See sec. 267 of the Merchant Shipping Act, 185-t ; Reg. v. Ander- 
 son, L. R. 1 C. C. R. 161. It required statutes to authorize a trial in 
 one county of England for an offence committed in another county. See 
 the valuable note to Keighley v. Bell, 4 F. cV F. at p. 790.
 
 188 THE CANADIAN CONSTITUTION. 
 
 give effect to the enactment. Ma}' we lay down the same 
 rule__inregard to a " confirmed ' ^^.ct ot a colonial le'tylsTa"^ 
 ture ? \Ve think not. Until very recently, there was^no 
 judicial decision directly upon this question, but there was 
 high authority in support of the view here adopted- that 
 a colonial legislature cannot affix a criminal character to 
 acts committed beyond the territorial limits of the colony ] 
 and there would appear to be no argument in favor of this 
 view, which would not be equally applicable to the case of 
 colonial legislation affecting civil rights "accrued" abroad (i) 
 (if we may use the expression). The high authority to 
 which we refer as to criminal legislation, is that of the law 
 officers of the Crown in England. In 1861, the parliament 
 of (Old) Canada passed an Act to give jurisdiction to 
 Canadian magistrates in reference to certain offences com- 
 mitted in New Brunswick. This Act was disallowed by 
 order of the Queen in Council upon the report of the law 
 officers of the Crown, who advised that " such a chaniiv 
 
 o 
 
 cannot be legally effected by an Act of the colonial legisla- 
 ture, the jurisdiction of which is confined within the limits 
 of the colony " (j). 
 
 And again, the Dominion parliament, in 1869, passed 
 " An Act respecting perjury," the third section of which 
 
 " 3. Any person who wilfully and corruptly makes any false 
 affidavit, affirmation, or declaration out of Canada, or out of any 
 Province of Canada, before any functionary authorized to take 
 the same for the purpose of being used in Canada, or in such 
 Province, shall be deemed guilty of perjury, in like manner as if 
 such false affidavit, affirmation or declaration had been made in 
 Canada, or in such Province, before competent authority ; and 
 such re. 'son may be dealt with, indicted, tried and if convicted, 
 b^> sentenced, and the offence in \\ be laid and charged to have 
 
 (/) The legal rights arising out of a contract, are governed by the 
 li.r loci coiilractui ; the lex j'ori governs as to the nature extent and 
 character of the remedy, Forsyth, 239, 24'J. 
 
 (j) Jour. Leg. Ass. Can 1862, p 101.
 
 COLONIAL LEGISLATIVE POWER. 189 
 
 been committed, in that district, county or place where he has 
 been apprehended or is in custody." 
 
 In a despatch (k) to the Governor-General, the Colonial 
 Secretary adverts to this section as assuming "to affix 
 criminal character to acts committed beyond the limits of the 
 Dominion of Canada," and " as such a provision is beyond 
 the legislative power of the Canadian parliament," he 
 suggested amendment. The Act was not disallowed, but 
 the actjuiescence of the Minister of Justice in the correct- 
 ness of the law laid down by the Colonial Secretary, is 
 evidenced by the fact that the Act was amended in the 
 very next session, so as to limit the operation of the third 
 section to affidavits made in one province of the Dominion 
 for use in another province (I). 
 
 Forsyth (m), in his collection of opinions 011 constitu- 
 tional law, cites an opinion given by the law officers of the 
 Crown (/?), in England, in 1855 : 
 
 " We conceive that the Colonial Legislature cannot \ 
 legally exercise its jurisdiction beyond its territorial limits | 
 three miles from shore or, at the utmost, can only do 
 this over persons domiciled (o) in the colony, who may 
 offend against its ordinances even beyond those limits, but 
 not over other persons " ( />). 
 
 In the case of Peak v. Shields (q) the question was 
 discussed in our courts, but owing to the divergence of 
 view on the part of the judges (particularly in the 
 
 (k) Can. Sess. Papers, 1870, No. 39; see Todd, " Parl. Govt, in Brit. 
 Col." 150. 
 
 (I) 33 Vic c. 26, amending 32-33 Vic. c. 23, s. 3. 
 
 (HI) p. 24 ; see also p. 238. 
 
 (H) Sir J. Harding, Queen's Advocate; Sir A. E. Cockburn, A.G. 
 (afterwards Lord Chief Justice of England) ; and Sir R. Bethell, S.G. 
 (afterwards Lord Chancellor Westbury). 
 
 (o) See pout, p. 193. 
 
 (p) See also Atty.-Gen. of Hong Kong v. Kwok-a Sing, L. R. 5 P. C. 
 179, and re Goodhue, 19 Grant 38'3, at pp. 404 and 452. 
 
 (q) 31 U. C. C. P. 112; 6 O. A. R. 639; 8 S. C. R, 579.
 
 190 THE CANADIAN C( iNSTITCTK >N. 
 
 Supreme Court) the case can hardly be considered an 
 authority (r). The plaintiffs invoked against the defen- 
 dants a clause in the Insolvent Act of 1875, which, shortly 
 stated, provided that when it was found on the trial of an 
 action against an insolvent, that the debt sued for, had 
 been contracted by him when, to his knowledge, he was 
 unable to meet his engagements, he might be imprisoned 
 for two years unless the debt and costs were sooner paid. 
 In the case in question, the debt had been contracted in 
 England. A majority of the judges, who rendered opin- 
 ions in the case, held that the statute did not affix a crim- 
 inal character to an act committed abroad ; that the law 
 enacted by the section, was a law_gs_^ the remedy avail- 
 able in_ our courts* and therefore valid (ft). Of the 
 Supreme Court, the majority who expressed an opinion 
 on this constitutional point, decided against the applica- 
 bility of the section, invoking the rules of interpretation to 
 which we have before referred, as limiting the section to 
 debts contracted in Canada; but at the same time serious 
 doubt was expressed by each of these judges as to the 
 validity of the enactment, in case its unambiguous mean- 
 ing had admitted none but the wider interpretation. The 
 position is thus clearly put by Mr. Justice Strong (/) : 
 
 " By the 91st section of the B. N. A. Act, the parliament 
 of Canada is empowered to make laws for the peace order 
 and good government of Canada. Does this warrant the 
 enactment of statutes binding British subjects in respect of 
 
 (r) As to the questions arising in this case, which involved considera- 
 tion of the B. N. A. Act, see post, notes to s. 91, s-s. 21, etc. 
 
 (*) Somewhat analogous questions arise under the " Act respecting 
 Arrest and Imprisonment for Debt" (R. S. O. c. 67). It is submitted 
 that so far as these statutes make provision as to the remedy to secure the 
 performance of the obligation created by the contract sued on, they apply to 
 the case of proceedings for a debt contracted abroad ; but that so far as 
 they are punitive whether technically "criminal" or not they do not 
 (as a matter of interpretation) so apply, and could not (as a matter of 
 jurisdiction to enact them) be made so to apply. 
 
 (0 8 S. C. R.at p. 500-7.
 
 (OLOXIAL LEGISLATIVE PO\VEIt. 191 
 
 acts done without the territory of the Dominion, merely because 
 they happen at the time to have a domicile in the Dominion ? 
 Or are not such persons, like all other subjects of the Queen, 
 liable to be affected by no legislation regulating their personal 
 conduct without the limits of the Dominion, save such as may 
 be enacted by the Imperial legislature, the parliament of the 
 United Kingdom ? I think these weighty and important 
 questions would arise and have to be determined in the present 
 case, if we found in the enactment under consideration, either 
 from express words or necessary implication, that it was the 
 intention of the legislature to apply it to traders, domiciled 
 inhabitants of Canada, making purchases without the Dominion. 
 But as there is not the slightest indication of such a design, as 
 respects this 186th section, we are relieved from the obligation 
 of determining such a grave question of constitutional law." 
 
 The only other case in our courts, is Regina v. Brierly ( /' ) 
 involving the validity of section 4 of the "Act respecting 
 offences relating to the Law of Marriage " (R. S. C. c. 161) : 
 
 " IV. Every one who being married, marries any other per- 
 son during the life of the former husband or w T ife, whether the 
 second marriage takes place in Canada or elsewhere, is guilty 
 of felony and liable to seven years' imprisonment : 
 
 "2. Nothing in this section contained shall extend to : 
 (a) Any second marriage contracted elsewhere than in Canada 
 by any other than a subject of Her Majesty, resident in Canada, 
 leaving the same with intent to commit the offence ; . . 
 
 This section was held valid by the Divisional Court of 
 the Chancery Divison, but in view of the decision about to 
 1 >e referred to, it would appear that this judgment can only 
 be supported as to foreign marriages, upon the view that. 
 the offence dealt with by the seoi.inn.is the leaving Canada, 
 with intent The opinion of the Chancellor in that case, is 
 if to say so be permissible a clear marshalling of all that 
 can be urged in support of the jurisdiction of a colonial 
 legislature to pass such an enactment : and were it not that 
 Regina v. Brierly must be considered overruled by the 
 
 (M) 14 0. R. 52.".
 
 192 THE CANADIAN CONSTITUTION. 
 
 decision of the Judicial Committee of the Privy Council in 
 the case about to be noted, it might be deemed an act of 
 presumption to question the correctness of the principles 
 enunciated. With all deference, it is submitted that the 
 limitation of the lines of judicial investigation open to a 
 Canadian judge, to a consideration of the express pro- 
 visions of the B. N. A. Act on the one hand, and of the 
 Colonial Laws Validity Act on the other, is to leave 
 untouched those implied restrictions to which reference 
 lias been made in an earlier part of this chapter such, c. y., 
 as those indicated in Craw v. Ramsay (>.'). The meaning 
 given to the phrase, " extra territorial legislation'' seems 
 also unduly limited; in the books it is constantly used to 
 describe the attempt by the legislature of one state, to 
 determine the legal relation to arise, in that state, from 
 acts done and contracts entered into in another. 
 
 Very opportunely, the report of the case, McLeod v. 
 Attorney-General for New South Wales ( //), l>efore the 
 Judicial Committee of the Privy Council, comes to hand. 
 The legislature of that colony had upon its statute book 
 the following enactment : 
 
 " Whosoever being married, marries another person during 
 the life of the former husband or wife, wheresoever such second 
 marriage takes place, shall be liable to penal servitude for seven 
 years." 
 
 By applying to this enactment the rules of interpreta- 
 tion already discussed, the Committee construed the word 
 " wheresoever.' as meaning "wheresoever in this colony." 
 The question of jurisdiction is thus dealt with: 
 
 " Their Lordships think it right to add, that they are of 
 opinion that if the wider construction had been applied to the 
 statute, and it was supposed that it was intended thereby to 
 comprehend cases so wide as those insisted on at the bar, it 
 would have been beyond the jurisdiction of the colony to enact 
 such a law Their Lordships are far from suggesting 
 
 (r) See ante, p. 184, et seq. App. Gas. (1891) 455.
 
 COLONIAL LEGISLATIVE POWER. 193 
 
 \ 
 
 tli at the legislature of the colony did mean to give to themselves 
 so wile a jurisdiction. The more reasonable theory to adopt is, 
 that the language was used subject to the well-known and well- 
 considered limitation, that they were only legislating for those 
 who were actually within their jurisdiction, and within the limits 
 of the colony." 
 
 It will be noticed, perhaps, that the report of this case 
 does not disclose whether or not the appellant was a 
 British subject, or whether he was, or was not, a resident 
 of the colony. His first marriage took place in New South 
 Wales, and it would appear that in the United States, 
 where the second marriage was celebrated, he had in some 
 way procured a divorce from his first wife. As to his 
 nationality, the name is perhaps suggestive. It may there- 
 fore be thought that there is still room for argument as to 
 the power of a colonial legislature to affix criminal character 
 to acts done abroad by a British subject, whose domicile is 
 in the colony, but there is nothing in the judgment of the 
 Committee to support such a view. 
 
 In this connection it may be remarked that in regard 
 to Imperial Acts, the question is one of construction 
 merely ; with us, it is a question of jurisdiction, or of 
 construction to save jurisdiction. If the jurisdiction be 
 wanting, the legislation is void is not law and would 
 have to be judicially so held (x). Such an Act would be 
 unconstitutional, in the proper sense of that term i.e., con- 
 trary to our constitution and the very same doctrine 
 which lays down, that it is the right and duty of a 
 Canadian judge to declare void an Act of a provincial 
 legislative assembly, trenching upon ground sacred to the 
 parliament of Canada, lays down with equal force, that it 
 is also his right and duty to declare void as ultra vires 
 any Act, provincial or Dominion, which in its territorial 
 scope exceeds the power of a colonial legislature (?/). 
 
 (x) See Eeg. v. Brierly, 14 O. R. 525. 
 
 (y) See the judgment of Marshall, C.J., in Marbury v. Madison, 1 
 Cranch, 137 ; Political Science Lectures, 1889, University of Michigan, 
 p. 77, et seq. ; re Goodhue, 19 Grant, at p. 452. 
 CAN. CON. 13
 
 194 THE CANADIAN CONSTITUTION. 
 
 All the limitations upon our legislative power (always 
 considered as to its sum total) have now probably been 
 adverted to, and we may again refer to the position for- 
 merly taken (z), and may summarize by saying : Within 
 the limits laid down, expressly or impliedly, by our charter 
 the B. N. A. Act and subject always to Imperial con- 
 .trol as before indicated (), the powers of legislation pos- 
 sessed by the various legislative bodies existing in Canada, 
 are plenary powers, and that, "jurisdiction conceded, the 
 will of the legislature is omnipotent according to British 
 theory, and knows no superior " (b). Paraphrasing the lan- 
 guage of Chief Justice Marshall in a very celebrated case 
 which came before the Supreme Court of the United States 
 (c), we admit, as all must admit, that the powers of a colonial 
 government are limited, and that its limits are not to be 
 transcended ; but the sound construction of the B. N. A. 
 Act, must allow to the legislatures, that discretion with 
 respect to the means by which these powers, conferred by 
 it, are to be carried into execution, which will enable those 
 bodies to perform the high duties assigned to them in the 
 manner deemed most beneficial to the people. Let the end 
 be legitimate, let it be within the scope of the constitution, 
 and all means which are not prohibited but consistent with 
 the letter and spirit of the constitution, are legal. Where 
 the law is not prohibited, to undertake to enquire into the 
 
 (z) Ante, p. 177. (a) Ante, Chap. VII. 
 
 (b) Per Mowat, A.G., arguendo, Reg. v. Severn, 2 S. C. R. at p. 81. 
 The theory is not exclusively British, for, jurisdiction conceded, the 
 same rule applies to Acts of Congress and of the State Legislatures in 
 the adjoining Republic. 
 
 (c) McCulloch v. Maryland, 4 Wheat, 421. Note that Congress is 
 .given certain "enumerated powers" and also power ' to make all laws 
 which shall be necessary and proper for carrying into execution " those 
 powers, etc. The B. N. A. Act gives to each legislature power to make 
 laws " in relation to " the various matters as distributed between the 
 various legislative boiies. If there is any distinction, ours is the wider 
 phrase, and the principle of the decisions of the U. S. Supreme Court on 
 this subject of " implied powers " is applicable a fortiori to the powers of 
 our legislatures.
 
 COLONIAL LEGISLATIVE POWER. 195 
 
 degree of its necessity, would be to pass the line which 
 circumscribes the judicial department, and to tread on 
 legislative ground. 
 
 In courts of justice in England and other British colonies, 
 our law (statutory and common) is entitled to at least as 
 full recognition and effect as the laws of any foreign nation 
 in accordance with the principles of comity (d). On 
 appeals to Her Majesty in Her Privy Council, judicial 
 > recognition is, of course, accorded them (e) ; in other cases, 
 \ they must be proved as fact, but it should be observed that 
 I in regard to the proof of our law, as embodied in legislative 
 [enactment, the 6th section (/) of the Colonial Laws Validity 
 JAct, 1865, provides for a simple method of proof, viz., a 
 copy of the Act, certified as such by the proper officer of 
 
 the legislature whose enactment it is. 
 
 V 
 
 In a late case (g) before the Judicial Committee of the 
 
 Privy Council, it was very broadly laid down by Sir -R. 
 Philliinore, in delivering the judgment of the Committee, 
 that the law contained in an Act of the legislature of a 
 colony, and ratified by the express sanction of her Majesty, 
 is, in every case to which it is applicable, of binding 
 authority, equally in the Queen's High Courts in England, 
 and in Vice- Admiralty Courts in the colonies. We are safe 
 therefore in saying that in an action in an English court, 
 or the court of another colony, the law of Canada, statutory 
 or common law, would, 011 proof in the manner before 
 indicated, be given effect to, either on the doctrine of 
 comity, or on the stronger doctrine enunciated in Redpath 
 v. Allen. 
 
 (d) Phillips v. Eyre, L. R. 4 Q. B. at p. 241 ; Reg. v. Brierly, 14 O. R. 
 at p. 534. 
 
 (c) Cameron v. Kyte, 3 Knapp, P. C. at p. 345. 
 
 (/) 28 & 29 Vic. c. 63 (Imp.). Is this section in force in the colonies ? 
 or does it merely affect the method of proof in the English courts ? 
 (.'/) Redpath v. Allen, L. R. 4 P. C. 511.
 
 PART III. 
 
 THE ORIGINAL GROUP.
 
 CHAPTER X. 
 
 THE DIVISION OF THE FIELD. 
 
 In the earlier chapters of this book, the practical 
 oneness of the spheres of authority of the legislative and 
 executive departments of government has been insisted 
 upon, and the legal supremacy of the former over the latter 
 pointed out (a). Expressed in another way and in refer- 
 ence to a government of limited authority, it may be said / 
 that to fix the sphere of authority of the legislative depart- 
 ment of such a government, is to fix at the same time the 
 sphere of authority of the executive department of that 
 government. Applying that principle to the Canadian 
 constitution, it will be at once seen how important it is to 
 fix, if possible, the exact line which is to divide, for legis- 
 lative purposes, the field of colonial authority between the 
 Dominion parliament and the Provincial legislative assem- 
 blies. For, that line found, we have likewise established 
 the line of division between the Dominion and the Pro- 
 vinces for the purposes of executive government. 
 
 Before entering upon an examination in detail of the 
 sections of the B. N. A. Act which provide for the distribu- 
 tion of legislative power, we may shortly advert to the 
 laws and legal institutions existing in the different prov- 
 inces at the time the B. N. A. Act took effect, and to some 
 general principles which have been authoritatively estab- 
 lished in reference to the nature of the division effected by 
 the Act. 
 
 (a) See ante, p. 12, p. 22, et seq., p. 46, ct teq., and Chap. VI.
 
 200 THE CANADIAN CONSTITUTION. 
 
 I. When the Union took effect, there was in existence 
 in each of the individual provinces, a legal system a 
 "body" of laws and legal institutions. By sec. 129 of the 
 B. N. A. Act, it was provided that all laws, etc., in existence 
 in the different provinces at the time of the Union, " shall 
 continue .... as if the Union had not been made, 
 subject nevertheless (except with respect to such as are 
 enacted by or exist under Acts of the parliament of Great 
 Britain, or of the parliament of the United Kingdom of 
 Great Britain and Ireland) to be repealed, abolished or 
 altered by the parliament of Canada, or by the Legislature 
 of the respective province, according to the authority of 
 the parliament or of that h"j't*l<iturr c ml",- /A/'.s Act'' 
 
 This mass of laws and legal institutions may be con- 
 sidered the raw material, so to speak, upon which the legis- 
 latures of the Dominion and the respective provinces were 
 to operate, each according to its aiif/toi-ifi/ vn<lt<,' the 
 B. N. A. Act; and it must be borne in mind that we have 
 laws (common law and statutory enactments) on many 
 subjects which have come down to us from pre-Confedera- 
 tion days, and these can be repealed or altered only by that 
 legislative body which could now, were they non-existent, 
 enact them (b). The division, therefore, effected by the 
 B. N. A. Act, was a present division of the whole body of 
 existing !">r (in its widest sense), as well as a division of 
 the field for future exercise of authority (c). Of course, 
 the body of law in existence when the B. N. A. Act came 
 into force was of provincial creation, but at once upon that 
 Act taking effect, that portion of existing laws, etc., which 
 fell within the sphere of authority of the Dominion par- 
 liament, became what we may call a body <>f Dominion 
 law, while the remainder might, not inaptly, be designated 
 a body of provincial laws. 
 
 (b) Dobie v. Temporalities Board, 7 App. Ca;. IHi'.. 
 
 (c) See ante, pp. 40, 50.
 
 THE DIVISION <>F THE FIELD. 201 
 
 II. The <1 ' ' !<>)> en'ectetl ly the B. N. A. Ad is ex- 
 The limitations upon our powers of self-govern- 
 ment, arising from our colonial status, have been already 
 dealt with (W). The power to legislate along certain lines 
 and in reference to certain matters, deemed to be matters 
 of Imperial concern, has been expressly or is impliedly 
 withheld: but of all the matters in respect to which we 
 have power i.e., of the entire field of self-government 
 alloted to us the B. N. A. Act effects a division, assigning 
 certain classes of those matters to the Provincial assem- 
 blies, and the balance to the parliament of Canada. 
 
 The following passage from a recent judgment of the 
 Judicial Committee of the Privy Council discloses the con- 
 tention to the contrary which had been raised, and finally 
 disposes of it : (e) 
 
 " It only remains to refer to some of the grounds taken by 
 the learned judges of the Lower Courts which have been strongly 
 
 objected to at the Bar It has been suggested 
 
 that the provincial legislatures possess powers of legislation 
 either inherent in them, or dating from a time anterior to the 
 Federation Act, and not taken away by that Act. Their Lord- 
 ships have not thought it necessary to call on the respondent's 
 counsel, and therefore possibly have not heard all that may be 
 said in support of such views. But the judgments below are so 
 carefully reasoned, and the citation and discussion of them here 
 has been so full and elaborate, that their Lordships feel justified 
 in expressing their present dissent. . . They adhere to the 
 view which has always been taken by this Committee, that the 
 
 Federation Act exhausts the whole ran^e of legislative power, 
 
 and that whatever is not thereby given to the provincial 
 
 tures, rests with the Parliament (/)." 
 
 III. The parliament of Canada and the provincial I 
 assemblies possess, each within the sphere assigned to it, | 
 
 (d) Se Chap. IX. 
 
 (e) Bank of Toronto v. Lambe, 12 App. Cas. at p. 587. 
 
 (/) See further upon this .-point, the notes to the opening clause of 
 
 sec.
 
 202 THE CANADIAN CONSTITUTION. 
 
 plenary powers of legislation. This attribute of colonial 
 legislatures has oeerf examined at some length in the last 
 chapter, and we need here only emphasize this fact, that 
 there is no distinction whatever, in this regard, between 
 the Dominion parliament and the assemblies of the different 
 provinces. The principle has been applied alike to the 
 legislative power of each to uphold, for example, the 
 " local option " clauses of the Canada Temperance Act (</), 
 and the delegation of power to license commissioners, under 
 the Ontario Liquor License Acts (h). 
 
 IV. In a country under the rule of law, it necessarily 
 devolves upon the courts which administer law, to enquire 
 and determine, in any given case, whether an Act of a 
 legislature having authority over a limited range of sub- 
 ject matters, is within or without its powers, is or is not 
 /"". As we have already pointed out (i), long before the 
 passage of the B. N. A. Act, English and Colonial judges had 
 been called on to consider colonial Acts, and to determine 
 the question of their legal validity ; and the duty of the 
 courts to determine like questions under the B. N. A. 
 Act, was no new jurisdiction, although full appreciation of 
 the extent of their judicial authority in this regard, seems 
 to have dawned on Canadian judges with something like 
 surprise. It serves to indicate how small is the range of 
 matters with which colonial legislatures are unable to deal, 
 that we find colonial judges almost forgetting that any 
 limits exist (j). After twenty-five years of experience 
 
 (</) Russell v. Reg., 7 App. Gas. 829. 
 
 (h) Hodge v. Reg., 9 App. Gas. 117. See also Reg. v. O'Rourke, 1 
 O. R. 4G5, 32 TJ. C. C. P. 388, as to the adoption by the Dominion Parlia- 
 ment, for purposes of criminal procedure, of Provincial Acts respecting 
 jurors. 
 
 (/) See Chap. IV. and Chap. IX., ante. 
 
 (j) In this connection we may point out that in L'Union St. Jacques 
 v. Belisle, L. R. 6 P. C. 31, the reporter states the question involved to- 
 be whether the Act there impugned was or was not repugnant to the 
 B. N. A. Act a strictly accurate way of pitting it, but in these days not 
 followed.
 
 THE DIVISION OF THE FIELD. 203 
 
 under our federal system, the exercise by the courts of 
 this function, excites 110 remark, and the cases on this branch 
 of Canadian jurisprudence now fill many volumes. Under 
 the legal system of the British Empire, the " last word " 
 upon these questions rests with the Judicial Committee of 
 the Privy Council, and so far as that tribunal has spokem 
 and so far as the principles enunciated in its judgments 
 extend, its decisions are binding upon our courts. In a 
 number of cases they have determined the position of the 
 line of division in regard to the subject matters immediately 
 involved in those cases, and they have likewise enunciated 
 certain principles which must hereafter guide us in deter- 
 mining the line of division as to many subject matters with 
 which they have not directly dealt. Our first duty there- 
 fore is to examine their judgments. Next in order of 
 authority will come the judgments of the Supreme Court 
 of Canada ; then, for each province, the provincial Court 
 of final resort in the province, and so on through the whole 
 range of the judiciary. 
 
 Apart from certain sections which confer legislative 
 powers in reference to the conduct of business in the dif- 
 ferent legislatures (&), and in reference to elections (I), the 
 distribution of legislative power is provided for, in sections 
 91-95 of the B. X. A. Act. We deal in this place with 
 sections 91 and 92 only, and have, for convenience of 
 reference and comparison, placed them side by side. 
 
 (k) See sees. 18, 35, 47, 78, 87, etc.; see also 28 & 29 Vic. c. 63, s. 
 (Imp.), and particularly notes to sec. 35. 
 
 (0 See notes to sees. 40, 41, 51, 80, 83, and 84, post.
 
 204 THE CANADIAN CONSTITUTION. 
 
 POWERS OF THE PARLIAMENT. 
 
 91. It shall lie lawful for the Queen, by and with the advice and consent of 
 the Senate and House of Commons, to make Laws for the peace, order, and 
 good government of Canada, in relation to all matters not coming within the 
 classes of subjects by this Act assigned exclusively to the Legislatures of the 
 Provinces ; and for greater certainty, but not so as to restrict the generality 
 of the foregoing terms of this section, it is hereby declared that (notwith- 
 standing anything in this Act) the exclusive Legislative Authority of the 
 Parliament of Canada extends to all matters coming within the classes of 
 subjects next hereinafter enumerated ; that is to say : 
 
 ^ 1. The public debt and property. 
 
 ^ 2. The regulation of trade and commerce. 
 
 3. The raising of money by any mode or system of taxation. 
 
 4. The borrowing of money on the public credit. 
 
 5. Postal service. 
 
 6. The census and statistics. 
 
 7. Militia, military and naval service, and defence. 
 
 8. The fixing of and providing for the salaries and allowances of civil and 
 
 other officers of the Government of Canada. 
 
 9. Beacons, buoys, lighthouses, and Sable Island. 
 Navigation and shipping. 
 
 11. Quarantine and the establishment and maintenance of Marine Hos- 
 
 pitals. 
 
 12. Sea Coast and inland fisheries. 
 
 13. Ferries between a Province and any British or Foreign Country, or 
 
 between two Provinces. 
 
 14. Currency and coinage. 
 
 15. Banking, incorporation of banks, and the issue of paper money. 
 
 16. Savings Banks. 
 
 17. Weights and measures. 
 
 18. Bills of exchange and promissory notes. 
 
 19. Interest. 
 
 20. Legal tender. 
 
 21. Bankruptcy and Insolvency. 
 
 '2'-. Patents of invention and discovery. 
 
 23. Copyrights. 
 
 24. Indians and lands reserved for the Indians. 
 
 25. Naturalization and alien.-. 
 
 26. Marriage and Divo"rce. 
 
 27. The Criminal Law, except the Constitution of Courts of Criminal Jur- 
 
 isdiction, but including the procedure in criminal matters. 
 
 28. The establishment, maintenance, and management of penitentiaries. 
 Such Classes of subjects as are expressly excepted in the enumeration 
 
 of the dae> of subjects by this Act assigned exclusively to the 
 
 Legislatures of the Provinces. 
 
 And any matter coming within any of the classes of subjects enumerated in 
 this section shall not be deemed to cvme within the class of matters of a local 
 <>r private nature comprised in the enumeration of the classes of subject* \>y 
 this Act assigned exclusively to the Legislatures of the Provinces.
 
 THE DIVISION OF THE FIELD. 205 
 
 EXCLUSIVE POWERS OF PROVINCIAL LEGISLATURES. 
 
 92. In each Province the Legislature may exclusively make laws in relation 
 to matters coming within the classes of subjects next hereinafter enumerated, 
 that is to say : 
 
 1. The amendment from time to time, notwithstanding anything in this 
 Act, of the Constitution of the Province, except as regards the 
 office of Lieutenant-Governor. 
 
 ^ 2. Direct taxation within the Province in order to the raising of a revenue 
 for Provincial purposes. 
 
 3. The borrowing of money on the sole credit of the Province. 
 
 4. The establishment and tenure of Provincial offices, and the appoint- 
 
 ment and payment of Provincial officers. 
 
 ^5. The management and sale of the public lands belonging to the Province 
 and the timber and wood thereon. 
 
 ^ 6. The establishment, maintenance and management of Public and Re- 
 formatory Prisons in and for the Province. 
 
 ?7. The establishment, maintenance, and management of Hospitals, 
 Asylums, Charities, and Eleemosynary Institutions in and for the 
 Province, other than Marine Hospitals. 
 
 - 8. Municipal Institutions in the Province. 
 
 j9. Shop, saloon, tavern, auctioneer, and other licenses in order to the 
 raising of a Revenue for Provincial, Local, or Municipal purposes. 
 
 10. Local works and undertakings other than such as are of the following 
 
 classes, 
 
 . Lines of steam or other ships, railways, canals, telegraphs, 
 and other works and undertakings connecting the 
 Province with any other or others of the Provinces, or 
 extending beyond the limits of the Province ; 
 
 b. Lines of steamships between the Province and any British 
 
 or foreign country ; 
 
 c . Such works as, although wholly situate within the Province, 
 
 are before or after their execution declared by the Parlia- 
 ment of Canada to be for the general advantage of 
 Canada, or for the advantage of two or more of the 
 Provinces. 
 
 11. The incorporation of Companies with Provincial objects. 
 
 12. The solemnization of marriage in the Province. 
 ^ 13. Property and civil rights in the Province. 
 
 14. The administration of justice in the Province, including the constitu- 
 tion, maintenance and organization of Provincial Courts, both of 
 civil and of criminal jurisdiction, and including procedure in civil 
 ^ matters in those Courts. 
 
 , 15. The imposition of punishment by fine, penalty, or imprisonment for 
 enforcing any law of the Province made in relation to any matter 
 coming within any of the classes of subjects enumerated in this 
 section. 
 
 16. Generally all matters of a merely local or private nature in the 
 Province.
 
 -206 
 
 THE CANADIAN CONSTITUTION. 
 
 A perusal, the most cursory, of the classes enumerated 
 in the various sub-sections (m) of these two sections, reveals 
 
 J 
 
 that if, in every case, the full natural meaning is to be given 
 to the words employed, the classes must inevitably over- 
 lap. But the Act is clear that the jurisdiction in each 
 case is exclusive (ri), and, therefore, in the case of one of 
 the sections, or of the other, or of both, that full natural 
 meaning cannot be given. If either one of the sections is 
 to be so read as to give to the language used in every one 
 of its sub-sections its full natural meaning, the other section 
 must necessarily be read as a subordinate section, and the 
 meaning of its various sub-sections so limited as to exclude 
 those subject matters monopolized by the various sub-sec- 
 tions of the favored section. If neither section is to be 
 set up as a favorite, by what rule or rules are we to be 
 guided in reconciling them ? For, reconcile them we must, 
 if the jurisdiction in each case is exclusive. The first 
 method was favored by the earlier decisions of our Supreme 
 Court. Section 91 was set up as the predominant section, 
 and this formula was suggested, and practically adopted 
 by the majority of the court, as an unerring guide to the 
 determination of the line of division as to any given sub- 
 ject matter : 
 
 " All subjects of whatever nature not exclusively assigned to 
 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 at the same titm- dors not 
 invoice any interference u-ith any of the subjects enumerated in 
 section 91 " (o). 
 
 (m) Strictly speaking, they are not sub-sections, but it is convenient 
 to speak of them as such. 
 
 (n) See ante, p. 67, for a suggested interpretation of this word. In 
 addition to the authorities there referred to, see Todd, " Parl. Gov. Brit. 
 Col." p. 189, et seq. 
 
 (6) Per Gwynne, J., in City of Frederickton v. Reg. 3 S. C. R. at p. 
 -568; and see Citizens v. Parsons, 4 S. C. R. at p. 330.
 
 THE DIVISION OF THE FIELD. 207 
 
 Had this rigid formula been finally adopted, the posi- 
 tion of a province would have been that of a very minor 
 municipality, and the union of the provinces legislative 
 rather than federal. Its adoption by the Supreme Court 
 was largely owing to a misconstruction of the closing words 
 of section 91. "The class of matters of a local or private 
 nature " was held to refer to and embrace the whole of the 
 sub-sections of section 92, although the singular number is 
 used in immediate contradistinction to the plural " the 
 class . . . comprised in the enumeration of the classes" 
 and although this grammatical reference to sub-section 
 16 only of section 92, had been clearly recognized in an 
 earlier judgment of the Judicial Committee of the Privy 
 Council (p). The labors of the courts would certainly 
 have been materially lightened, had that Committee ac- 
 cepted this formula. Wh,ile. in, a_sense. it reconciled sections] 
 91 and 92, it did away with any necessity loi 1 an a'flemplj 
 to reconcile their respective sub-sections. Fortunately for 
 the provinces, the Committee has decisively rejected this 
 formula, while at the same time (as we shall see) adopting 
 it up to a certain point as a method of inquiry. The view 
 of the Committee is set out in a case (g) which must now 
 be considered classic on this vital question, in the following 
 language : 
 
 " The scheme of this legislation, as expressed in the first 
 branch of section 91, is to give to the Dominion parliament, 
 authority to make laws for the good government of Canada in all 
 matters not coming within the classes of subjects assigned 
 exclusively to the provincial legislature. If the 91st section had 
 stopped here, and if the classes of subjects enumerated in section 
 92, had been altogether distinct and different from those in sec- 
 tion 91, no conflict of legislative authority could have arisen. 
 The provincial legislatures would have had exclusive legislative 
 
 (p) L'Union St. Jacques v. Belisle, L. R. 6 P. C. at p. 35. See the 
 reporter's way of putting it at p. 33 ; and see notes to the final clause of 
 ,aec. 91, post. 
 
 (q) Citizens v. Parsons, 7 App. Cas. 96, at p. 107, et seq.
 
 208 
 
 THE CANADIAN CONSTITUTION. 
 
 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 this sharp and definite distinction had not 
 been and could not be attained, and that some of the classes of 
 subjects assigned to the provincial legislatures unavoidably ran 
 into, and were embraced by some of the enumerated classes of 
 subjects in section 91 ; hence an endeavor appears to have been 
 made to provide for 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 (notwith- 
 standing 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 section 
 91 was introduced, though it may be observed that this para- 
 graph applies in its grammatical construction only to No. 16 of 
 section 92. 
 
 " Notwithstanding this endeavor to give pre-eminence to the 
 Dominion parliament in cases of a conflict of powers, it is obvious 
 that in some cases where this apparent conflict exists, the legis- 
 lature could not have intended that the powers exclusively as- 
 signed to the provincial legislature, should be absorbed in those 
 given to the Dominion parliament. Take as one instance, the sub- 
 ject ' marriage and divorce,' contained in the enumeration of 
 subjects in section 91 ; it is evident that solemnization of mar- 
 riage would -come within this general description ; yet ' solemni- 
 zation of marriage in the province ' is enumerated among the 
 classes of subjects in section 92, and no one can doubt, notwith- 
 standing the general language of section 91, that this subject is 
 still within the exclusive authority of the legislatures of the 
 provinces (>). So ' the raising of money by any mode or system of 
 taxation ' is enumerated among the classes of subjects in section 
 91 ; but, though the description is sufficiently large and general 
 \ to include ' direct taxation within the province, in order to the 
 raising of a revenue for provincial purposes,' assigned to the 
 
 (r) See 3 S. C. R. at pp. 5153-9, where Mr. Justice Gwynne seeks to fit 
 the formula above quoted to these two sub-sections.
 
 THE DIVISION OF THE FIELD. 209 
 
 provincial legislatures by section 92, it obviously could not have 
 been intended that in this instance also, the general power should 
 override the particular one (s). With regard to certain classes 
 of subjects, therefore, generally described in section 91, legisla- 
 tive power may reside as to some matters falling within the 
 general description of these subjects, in the legislatures of the 
 provinces. In these cases it is the duty of the courts, however 
 difficult it may be, to ascertain in what degree, and to what ex- 
 tent, authority to deal with matters falling within these classes 
 of subjects exists in each legislature, and to define in the partic- 
 ular case before them, the limits of their respective powers. It 
 could not have been the intention that a conflict should exist ; 
 and in order to prevent such a result, the two sectiom must be read 
 to/tether, ami the lant/ua;/e of one interpreted and, irhere necessary, 
 iiiodiried !>y that of the other. In this way it may, in most cases, 
 be found possible to arrive at a reasonable and practical construc- 
 tion of the language of the sections, so as to reconcile the res- 
 pective powers they contain, and give effect to all of them. 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 aii interpretation of the 
 statute than is necessary for a decision of the particular question 
 in hand. 
 
 The first question to be decided is, whether the Act impeached 
 in the present appeal (t) falls within any of the classes of sub- 
 jects enumerated in section 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 primtt fade 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 
 Isection 91 v anil irliether the poicer of the provincial Itr/islature is, or 
 ' nut. therein/ orerborne. ~~ ~ - "~~~~ 
 
 -U. 
 
 The part italicized constitutes the essential distinction 
 between the formula already quoted, and the method of 
 enquiry adopted by the Judicial Committee of the Privy 
 
 (*) See notes to sec. 91, s-s. 3, post. (t) A provincial Act. 
 
 CAN. CON. 14
 
 210 THE CANADIAN* CoXSTlTUTK >X. 
 
 Council. The formula did away with all necessity for the 
 third enquiry, and, by consequence, with, as we have said, 
 all necessity for a reconciliation of the various sub-sections 
 of sections 91 and 92. 
 
 The statute impugned in the case from which we have 
 quoted, was a provincial Act, but in another case in the 
 same volume (u), the very same method of enquiry was 
 adopted in reference to a Dominion Act, and has since been 
 reaffirmed by the same tribunal as proper in regard to both 
 Dominion and Provincial legislation. The propriety of this 
 method of enquiry was finally established when the 
 exhaustive character of the division effected by the B. N. A. 
 Act was definitely enunciated (>). 
 
 Although the Judicial Committee of the Privy Council 
 has frequently reiterated the caution against " entering 
 more largely upon an interpretation of the statute than is 
 necessary for the decision of the particular question in 
 hand," and in a late case (v ) has laid down, that courts of law 
 " must treat the provisions of the Act in question by the 
 same methods of construction and exposition which they 
 apply to other statutes," their judgments do lay down a 
 number of rules of construction applicable to the elucidation 
 of these two sections of the B. X. A. Act, which, even if not 
 -exclusively applicable to this statute, are certainly peculiarly 
 helpful in interpreting its meaning. 
 
 (a) The sections mn*t 1>< read together, and il< In ni/nat/t 
 nf tl,<- n,n ;///v/-///vW n ,rd , ivhere necessary, modi ti'-<l 1> ; / 
 flu it of the other (x). 
 
 This rule is not to be limited to a comparison and 
 reconciliation of one sub-section of section 91, with an 
 apparently conflicting sub-section of section 92. In order 
 
 (M) Russell v. Reg., 7 App. Cas. 829 ; at p. 836. 
 
 (v) See ante, p. 201. 
 
 (jc) Bank of Toronto v. Lambe, 12 App. Cas. at p. 579. 
 
 (ar) Citizens v. Parsons, 7 App. Cas. 96 ; see the entire passage quoted, 
 ante, p. 207, ct seq.
 
 THE DIVISION OF THE FIELD. 211 
 
 Co arrive at the meaning of any sub-section of (say) section 
 91, the other sub-sections of that same section must be 
 examined. As a result of such examination, there has been 
 suggested what may be called a sub-rule of construction 
 which has been applied in a number of cases to limit the 
 scope of some, at least, of the sub-sections of section 91. 
 In one of the earliest cases (y) which came before the 
 Judicial Committee of the Privy Council, involving con- 
 sideration of sub-section 21, of section 91, " bankruptcy 
 and insolvency " the Committee speaking generally of 
 section 91 say : 
 
 " Their Lordships observe that the scheme of enumeration 
 in that section is to mention various categories of general 
 subjects which may be dealt with by legislation. There is no \ 
 indication in any instance of any thing being contemplated, except \ 
 what may be properly described as general legislation ; such ' 
 legislation as is well expressed by Mr. Justice Caron, when he 
 speaks of the general laws governing Faillite, bankruptcy and 
 insolvency, all which are well-known legal terms .expressing 
 systems of legislation, with which the subjects of this country 
 and probably of most other civilized countries are perfectly 
 familiar. 
 
 This language was used, as we have said, in reference 
 to section 91 generally, and has never been adversely 
 criticized in subsequent judgments of the Committee. The 
 principle has been applied to a number of the other sub- 
 sections of section 91. In the very case from which the 
 rule is quoted, the meaning of the terms, " regulation of 
 trade and commerce" (z) was restricted: (1) because their 
 collocation with classes of subjects of national and general 
 concern, affords an indication that regulations relating to 
 general trade and commerce were in the mind of the legis- 
 lature when conferring this power on the Dominion par- 
 liament: and (2) because unless intended to have a limited 
 meaning they would have rendered unnecessary the sub- 
 
 ((/) L'Union St. Jacques v. Belisle, L. R. 6 P. C. 31 at p. 36. 
 
 (z) s-s. 2; see the notes to this s-s.
 
 212 
 
 THE CANADIAN CONSTITUTION. 
 
 sections dealing with, e.<j., banking, weights and measures, 
 negotiable instruments, etc. (a). So in reference to legisla- 
 tion relating to navigation and shipping (7>); but just how 
 far this rule of construction is to be applied to each one of 
 the various sub-sections of section 91, is matter of doubt,, 
 as a reference to the various cases which have arisen and 
 been decided under those various sub-sections will disclose. 
 
 Reverting however to the rule above laid down, so far 
 as it enjoins a comparison of the various sub-sections of 
 section 91 with apparently conflicting sub-sections of 
 section 92, and vice ver*, we may point out that the 
 passage we have quoted from Citizens v. Parsons affords 
 two instances of its application, and we need not in this 
 place enlarge upon the rule, as very few cases arise which 
 do not call for its application. 
 
 (b) In order to arrive at the proper meaning <>f t/>c 
 various sub-sections of these tivo sections, other /><ui* of the 
 B. N. A. Act, and of other Imperial Acts, in puri nmta-ni 
 may be looked at (c). 
 
 For example, in construing sub-section 2 of section 91, 
 the meaning proper to be given to the terms, "regulation of 
 trade and commerce," was to a certain extent determined 
 by the meaning given to a somewhat similar phrase in the 
 Union Act which joined Scotland to England in legislative 
 union (d), and the meaning to be given to the 13th sub- 
 section of section 92, "property and civil rights in the pro- 
 vince," was elucidated by reference to the same phrase in 
 section 94 of the B. N. A. Act, and in section 8 of the 
 Quebec Act, 1774(4 
 
 (c) The true nature and character of the lc<iixl<ition in 
 the particular instance under discussion, ntnf (dir<if/H hr 
 
 (a) 7 App. Gas. at p. 112. 
 
 (b) See notes to sec. 01, s-s. 10, post. 
 
 (c) Citizens v. Parsons, 7 App. Cas. 96. 
 
 (d) Seethe passage quoted in the notes to sec. 91, s-s. 2, post. 
 
 (e) Ses note (e) ante, p. 96 ; and notes to sec. 92, s-s. 13, post.
 
 THE DIVISION 1 OF THE FIELD. 
 
 213 
 
 in order to ascertain the class of subject to 
 it'/, ic/t it really belongs, or, in other words, what is the 
 primary matter dealt ivith? (/). 
 
 Applying this rule of construction, the Judicial Com- 
 mittee of the Privy Council held (</) that the Canada Tem- 
 perance Act was not legislation on the subject of licenses 
 or relating to civil rights in a province, but general legisla- 
 
 tion for the order and good government of the Dominion; 
 
 that the Act respecting uniform conditions in nre ins uraliee- 
 policies, was legislation respecting "property and civil 
 rights in the province," and not respecting "the regulation 
 of trade and commerce " in the proper sense of the latter 
 Mill-section (It): that the imposition of a stamp duty on 
 policies of insurance was not a license Act, although so 
 called in the impugned statute (i); that an Act for levy- 
 ing a rate to pa}' a bonus to an existing railway, was 'not 
 an Act respecting "local works and undertakings," and 
 therefore was not subject to the exceptions mentioned in 
 the sub-section dealing with those matters (j) that an Act 
 in regulation of the internal affairs of a particular corpora- 
 tion was not a bankruptcy or insolvency Act (A 1 ). 
 
 (d) If, on the doe ft instruct ion of the Act, a legislative 
 power b,-- fun ,id t<> full ii-ifl,;,, citlif'i' section, it would be 
 quite wrong to deny its existence because by some possibi- 
 
 ity %l inay be abused, or may limit the range which 
 <->t/irr>i-ixc would be open to the other legislature (I). 
 
 (e) Subject* ir/,ic/, ',-,, one aspect and for one purpose 
 ir/-/Y///// section 93, may, in another aspect and for 
 
 /n!fpose,f<dl within section 91 (m). 
 
 (/) Russell v. Reg., 7 App. Cas. 829; at p. 839. 
 
 ,(#) Russell v. Reg., ubi mtpra. 
 
 ,(/i) Citizens v. Parsons, 7 App. Cas. 96. 
 
 .(/) Reed v. Atty.-Genl. of Quebec, 10 App. Cas. 141. 
 
 ,(j) Dow v. Black, L. R. 6 P. C. 272 ; see notes to sac. 92, s-s. 2. 
 
 (k) L'Union St. Jacques v. Belisle, L. R. 6 P. C. 31. 
 
 <(l) Bank of Toronto v. Lambe, 12 App. Cas. at p. 587. 
 
 ^m) Hodge v. Reg., 9 App. Cas. at p. 130.
 
 214 THE CANADIAN CONSTITUTION. 
 
 We deal with these two rules together, because they 
 both suggest the existence of possibly concurrent powers ( // ) 
 probably the most perplexing question which arises under 
 these sections of the B. N. A. Act. In order to deal intel- 
 ligently with this question, we must endeavor to get a clear 
 idea of the meaning of the phrases " convict of /"cx and 
 "concurrent powers." Any case which comes up for 
 judicial decision involves the application of law to facts- 
 The law applicable may be unquestioned, and the dispute 
 be as to the facts, or, the facts being determined, the dis- 
 pute may be as to the law applicable thereto. This latter 
 aspect is the one with which we have to deal. As Von 
 Savigny puts it, out of any given state of facts arise 
 " legal relations," one or more, capable presumedly of a 
 definite, absolutely correct determination. As to any one 
 of these legal relations there cannot be a conflict of law- 
 Of any number of laws put forward as determining the 
 " legal relation," one only is the law which governs. The 
 views of advocates, and even judges, may conflict, but the 
 law, though it may be, from time to time, varied at the will 
 of the law-making body in the state, is, at any given moment 
 of time, a thing certain. It follows that there cannot be 
 two statutes determining, in different ways, any one of the 
 legal relations which is to arise from any given state of 
 facts. If there be two statutes purporting so to do, <>n<- of 
 them must be of no legal effect, either because repealed by 
 the other (o), or by some rule of law made subordinate 
 thereto as to the particular legal relation. It follows, too, 
 that, unless "chaos" has come again," there cannot be in 
 two legislative bodies concurrent powers of legislation in 
 reference to the same legal relation, in the sense, that in 
 the same moment of time the enactment of each is law ( />). 
 
 (n) Jessel, M.R., had suggested this, in Atty.-Gen. of Quebec v. Queen 
 Ins. Co., 3 App. Cas. at p. 1097. 
 
 (o) This is sometimes discussed as a conflict in time ; the other as a- 
 conflict in space. 
 
 (p) See however per Wilson, J., in Reg, v. Taylor, 30 TJ. C. Q. B. afc 
 p. 206.
 
 THE DIVISION OF THE FIELD. 
 
 215 
 
 ( Tliis is recognized in the B. X. A. Act, for in section 95, V^v^o 
 ^ ,where powers of legislation are given, over the same subect 
 
 , powers 
 
 matter, to b.th the Dominion 
 
 ubject 
 
 ami the Provincial legisla- 
 
 tures, there is the express provision that the legislation is 
 not to be concurrent : that the enactment of a Provincial 
 legislature is to be law only in the absence of Dominion leg- 
 islation upon the subject matter. The first of the two rules 
 at the head of this paragraph, would seem to indicate that 
 in the view of the Judicial Committee of the Pi-ivy Coun- 
 cil, the absence of legislation by one legislature, Dominion or 
 provincial, upon the particular subject matter may increase 
 the range open to the other. This view has to be reconcile* I 
 with the use of the term " exclusive power," in reference to 
 each enumeration of classes of subjects ; or, if there is no 
 ] i. >ssible mode of reconciliation, the view of the Privy Council 
 must be an unsound ol>'tt"i: The way of escape seems to be 
 suggested by the second of the rules at the head of this 
 paragraph. The different aspects any given subject may 
 present, have reference to the different 'legal relations' that 
 may arise, or (from a legislative standpoint) be created in 
 connection with that subject. Now, these two sections of 
 the B. X. A. Act, deal with the various enumerated classes 
 of subjects, not as divisions of facts, but as divisions of legal 
 relations. 
 
 Insolvency, for example, is not a i'act 
 arenot tacts both are legal relations arising" 
 out of a certain juxtaposition and co-relation of i'acts 
 Without unduly enlarging upon this theme it seems to us 
 that a correct appreciation of this principle of division will 
 help to make clear just in what sense legislation by one 
 legislature (Dominion or Provincial) may lessen the range 
 open to the other : in what sense the legislation of one may 
 interfere with the legislation of the other. In the case from 
 which the first of the rules now being discussed is quoted^ 
 that rule was applied to uphold the taxation of banks by 
 provincial legislation (under section 92, s-s. 2), notwithstand- 
 ing that "banking, the incorporation of banks, and the issue 
 of paper money," is one of the classes of subjects assigned
 
 216 THE CANADIAN' COXSTITUTIOX. 
 
 to the exclusive ken of the Dominion parliament. Should 
 the Dominion parliament repeal all existing laws upon this 
 head, the legal relation a bank would be non-existent, 
 could not be created by provincial legislation, and could 
 not be seized upon, therefore, in order to attach to it the 
 further legal relation of liability to pay taxes to the pro- 
 vincial treasury. And on the other hand, an excessive tax 
 upon banks might possibly operate to prevent the co- 
 relation of facts arising in any particular instance, upon 
 which Dominion legislation might attach. No subject 
 matter has been more fruitful in producing cases for 
 decision under the B. .N. A. Act, than the liquor traffic (q), 
 The Judicial Committee of the Privy Council has. in 
 effect held (r) that the Dominion parliament may create 
 such legal relations out of the facts of the liquor traffic, as 
 to prevent the creation by provincial legislation of other 
 legal relations out of the same facts ; or perhaps we should 
 rather say, the Dominion parliament has power to prevent 
 the facts themselves from having any existence capable of 
 legislative recognition by a provincial legislature. 
 
 In an earlier case the extent of the power of the Do- 
 minion parliament along the line of bankruptcy and insol- 
 vency was authoritatively enunciated by the same tribunal 
 i ud the power of the provincial legislatures along the 
 same line, (now that we have no Dominion law upon this 
 subject) has taeii frequently discussed. It is submitted 
 that in the absence of legislation by the Dominion parlia- 
 ment, creative of any such legal relation as bankruptcy 
 or insolvency, the provincial legislatures have full power 
 (under section 92, sub-section 13 "property and civil rights 
 in the province ") to create such legal relations out of the 
 tacts of commercial life as to ensure, if deemed expedient, 
 
 (q) See notes to sec. 91, s s. 2, and sec. 92, s-s. 8 and 9. 
 
 (r) Russell v. Reg., 7 App. Cas. 829. 
 
 () Cashing v. Dupuy, 5 App. Cas. 409, at p. 415 ; and see L'Uuion 
 St. Jacques v. Belisle, L. R. 6 P. C. 31, at p. 36 ; and notes to sec. 91 
 s-s. 21, post.
 
 THE DIVISION OF THE FIELD. 217 
 
 the equitable distribution of the estate of a man whose 
 assets do not cover his liabilities, and to ensure also the dis- 
 -charg-e of the debtor from the balance of such liabilities- 
 In the absence of legislation by the Dominion, no set of 
 facts can constitute a legal relation to be known as bank- 
 ruptcy or insolvency (t). By creating such a legal relation, 
 to arise from such co-relation of facts as to the Dominion 
 parliament might seem meet, the power of the provincial 
 legislatures would be curtailed. Any attempt to state the 
 (essential elements of bankruptcy and insolvency legislation 
 <outside of a legislative definition of those terms, leaves one 
 .about as much in the dark as does Milton's description of 
 Death. 
 
 (f) The presumption, in any given case, is in favor of 
 il>< mlnliiy of a n impugned Act. 
 
 In the celebrated case (u) involving the validity of the 
 Dominion Controverted Elections Act, 1874, the Judicial 
 Committee of the Privy Council laid down the rule in this 
 language : 
 
 "It is not to be presumed that the legislature of the Dominion \ 
 has exceeded its powers unless upon grounds really of a serious j 
 character." 
 
 In numerous subsequent cases the principle has been 
 invoked. One of the latest expressions of the rule is that 
 " in cases of doubt every possible presumption and intend- \ 
 merit will be made in favor of the constitutionality of the / 
 Act" (r). It does not apply to an Act, the language of 
 which is unambiguous, and the effect (if the Act be held 
 valid) clearly beyond the competence of the legislature by 
 which the Act was passed. It indicates, rather, a principle 
 of interpretation, and may be put thus : If possible such 
 A meaning will be given to a statute as to uphold its validity, 
 
 (t) " Persons who may become bankrupt or insolvent, according to 
 rules and definitions prescribed by law " L. H. 6 P. C. at p. 36. 
 (H) Valin v. Langlois, 5 App. Cas. 115. 
 (v) Reg. v. Wason, 17 O. A. R. 221 ; per Burton, J.A , at p. 235.
 
 "9 
 
 * 
 
 218 THE CANADIAN CONSTITUTION. 
 
 for a legislative body must be held to intend to keep within 
 its powei-s. No stronger instance of the application of this 
 principle of interpretation could be cited than that afforded 
 by the very recent case which came before the Judicial 
 Committee of the Privy Council, from New South Wales 
 (w). The legislature of that colony had enacted : 
 
 " Whosoever being married, marries another person during 
 the life of the former husband or wife, wheresoever such second 
 marriage takes place, shall be liable to penal servitude for seven 
 years." 
 
 The Lord Chancellor (Lord Halsbury), in delivering the 
 judgment of the Committee, says : 
 
 In the first place it is necessary to construe the word 'whoso- 
 ever' ; and in its proper meaning it comprehends all persons all 
 over the world, natives of whatever country. The next word which 
 is to be construed is ' wheresoever.' There is no limit of person 
 according to one construction of ' whosoever,' and the word 
 ' wheresoever,' is equally universal in its application. Therefore, 
 if their Lordships construe the statute as it stands, and upon the 
 bare words, any person married to any other person, who marries 
 a second time anywhere in the habitable globe, is amenable to 
 the criminal jurisdiction of New South Wales, il he can be 
 caught in tbatcpknv. That seems to their Lordships to be an 
 impossible construction of the statute ; the colony can ha\e no 
 such jurisdiction, and their Lordships do not desire to attribute 
 to the colonial legislature an effort to enlarge their jurisdiction 
 to such an extent as would be inconsistent with the powers com- 
 mitted to a colony, and, indeed, inconsistent with the most 
 familiar principles of international law. It therefore becomes 
 necessary to search for limitations to see what would be the 
 reasonable limitation to apply to words so general ; and their 
 Lordships take it, that the words, 'whosoever being married,' 
 mean, ' whosoever being married, and who is amenable, at the 
 time of the offence committed, to the jurisdiction of the colony of 
 New South Wales.' ....... ' Wheresoever ' may 
 
 be read, ' wheresoever in this colony ' ..... It appears 
 
 to their Lordships that the effect of giving the wider interpretation 
 
 (ic) Macleod v. Atty.-Genl. of N. S. W., A. C. (1891) 455.
 
 THE DIVISION OF THE FIELD. 219 
 
 to this statute would ba . . . . that the statute was ultra 
 vires of the colonial legislature to pass. Their Lordships are tar 
 from suggesting tuat tiie legislature of the colony did mean to 
 give to themselves so wide a jurisdiction." 
 a neat way of " letting them down easy ! " What 
 the colonial legislature did really intend can hardly 
 be matter of doubt, but, in favor of validity, it was held 
 that they could not be even supposed to have intended to 
 go beyond the limits of their legislative competence (x). 
 
 The B. X. A. Act, a.s we all know, is largely founded 
 on the resolutions of the Quebec Conference, and the 
 question naturally arises, how far may these resolutions be 
 looked at in interpreting the B. N. A. Act ? Canadian 
 judges have frequently quoted from the resolutions, and 
 have utilized them tojaid in the_constructioji.jof ^doubtful 
 passages iii the Act: but it is worthy of note that the 
 tribunal of last resort the Judicial Committee of the 
 Privy Council has never made reference to them in its 
 judgments. In the decision of questions strictly legal 
 such as would come before the courts rather than before 
 the legislatures these resolutions can afford, at all events 
 at this date, very little assistance, and at the most only in" 
 the absence or all light from other parts of the statute, 67* 
 in cases perhaps where these resolutions might clearly sup- 
 port or negative one of two possible interpretations. The 
 fact that the B. N. A. Act must be Judicially interpreted as 
 expressing the will of the Imperial parlianient,~~rather~than 
 of the federating provinces, tends to make it very doubtful 
 
 (.r) See, also, Atty. Genl. for Canada v. Atty. Genl. of Ontario. 20 
 O. R. at pp. 245-6, and 19 O. A. R. at p. 33. Many other canons of con- 
 struction will be found throughout the cases which have involved con- 
 sideration of the B. N. A. Act. See notes to the various sections, pout. 
 In this plac3 W3 have endeavjra:! to gather int:> one chapter the most 
 important of those rules which aid in the determination of the line of 
 division between the Dominion and t'.ie Provinces. It should perhaps be 
 noticed here that the Judicial Committee of the Privy Council have not 
 been unmindful of _the large political character of the B. N. A. Act. 
 See Atty. Genl. of Ont. v. fiercer, 8 App. Cas. at p. 778.
 
 220 THE .CANADIAN CONSTITUTION. 
 
 how far, if at all, it is proper to refer to these resolutions. 
 The fact, too, that they were subjected to revision by the 
 delegates from the various provinces, at London, renders 
 them still more unreliable as legal guides to the interpre- 
 tation of the B. N. A. Act. 
 
 There is another matter which merits mention in this 
 place, the extent, namely, to which we may avail ourselves 
 of the judicial decisions of the American Courts particu- 
 larly of the Supreme Court of the United States upon 
 cases involving inquiry as to the powers of Congress and 
 the State legislatures respectively. They are not, of 
 course, authorities binding upon our courts, but under 
 proper safeguards, are very valuable aids to the study of 
 our Act (?/). The real difficulty, the risk even, in utilizing 
 them for purposes of illustration, arises from the difference 
 not only in the principle, but also in the method of division. 
 There are certain matters on which neither the Dominion 
 parliament, nor a provincial legislature can legislate (z); 
 and so, under the American system, there are certain laws 
 which neither Congress nor a State legislature can pass. 
 But there is not the slightest ground for comparison as to 
 the nature and character of the subjects which are with- 
 held from the legislative competency of our legislatures 
 and theirs, respectively. We are debarred from legislating 
 upon certain matters, because those matters are deemed 
 to be of Imperial concern, while, on the contrary, the legis- 
 lative power of both Congress and the State legislatures is 
 circumscribed in favor of individual liberty ()', ail d in 
 some of the State constitutions, more lately adopted, the 
 limitations on the legislative power of the State legislature 
 certainly go to very extreme lengths (/>). It cannot be 
 said, therefore, in reference to the American system, that 
 
 ((/) See the remarks of Hagarty, C.J., in Leprohon v. Ottawa, 2 
 O. A. R. at p. 533. 
 
 (z) See Chap. IX. ante. (a) See Art. I. sees. 9 and 10. 
 
 (/>) Bryce's " Amorican Commonwealth," Appx.
 
 THE DIVISION OF THE FIELD. 221 
 
 if power over a certain subject matter is not with Congress 
 it must be with the State Iegislature8.for it may be with 
 neither ThIP 7 people of the United States," as a grand 
 aggregate, have limited the power of Congress, and the 
 people of the individual states, viewed as smaller aggre- 
 gates, have likewise limited the sphere of authority of the 
 different State legislatures. The matters allotted 
 Congress are, in a sense, specially enumerated, the unenu- 
 merated residuum being reserved (subject to certain 
 prohibitions set out in the Constitution of the United 
 States) (c) to the States or to the people ; but the State 
 legislatures again may be, and in many cases are, under the 
 State constitutions, bodies with specially enumerated 
 powers. In short, in the American system there are 
 matters over which no body has legislative power, matters 
 held in reserve, as it were* by the people of the United 
 States, or by the people of the respective States. Confm- 
 ing our attention to Congress, we have to point out, what 
 has been before referred to (W), that after the enumeration 
 of the special matters (themselves described in very com- 
 prehensive terms) over which Congress is to have legisla- 
 tive power, there follows this clause (e) : 
 
 " To make all laws which shall be necessary and proper for 
 carrying into execution the foregoing powers, and all other 
 powers vested by this Constitution in the government of the 
 United States, or in any department or officer thereof " : 
 and under this clause, as construed by Marshall and his 
 successors, the powers of Congress in relation to the 
 National government of the United States can hardly be 
 sai<l to be specially enumerated powers only. 
 
 Nothing short of the most thorough mastery of the 
 United States constitutional system would warrant one in 
 drawing analogies between the line of division they have 
 adopted and that drawn by the B. N. A. Act. The Judicial 
 Committee of the Privy Council, while not slow to express 
 
 (c) Art. I., sec. 10. (d) Ante, p. 9. (e) Art. I., sec. 8.
 
 222 THE CANADIAN CONSTITUTION. 
 
 'their admiration for the Supreme Court of the United 
 States, and the eminent jurists who from time to time have 
 occupied seats in that tribunal, have always deprecated 
 any attempt to draw analogies between the Canadian and 
 the American systems. The view of the Committee is thus 
 expressed in a late case (/) : 
 
 " Their Lordships have been invited to apply 
 
 .to the construction of the Federation Act the principles laid 
 (down for the United States by Chief Justice Marshall. Every 
 <one would gladly accept the guidance of that great judge in a 
 parallel case. But he was dealing with the constitution of the 
 United States. Under that constitution, as their Lordships 
 understand, each State may make laws for itself, uncontrolled 
 by the Federal power, and subject only to the limits placed by 
 law on the range of subjects within its jurisdiction. In such a 
 constitution, Chief Justice Marshall found one of those limits at 
 the point at which the action of the state legislature came into 
 conflict with the power vested in Congress. The appellant 
 invokes that principle to support the conclusion that the Feder- 
 ation Act, must be so construed as to allow no power to the 
 provincial legislatures, under section 92, which may by possi- 
 bility, and if exercised in some extravagant way, interfere with 
 the objects of the Dominion in exercising their powers under 
 section 91. It is quite impossible to argue from the one case to 
 the other." 
 
 This passage suggests that, in the view of the Com- 
 mittee, the absence of the power of disallowing State 
 legislation may have led the United States courts to 
 scrutinize that legislation more closely, and ma}' have 
 caused the adoption of the wide interpretation of the 
 .article of the " Constitution " above quoted. 
 
 (/) Bank of Toronto v. Lambe, 12 App. Gas. at p. 587.
 
 CHAPTER XI. 
 
 OUR JUDICIAL SYSTEM 
 
 We have thus far treated of government as divisible 
 into two chief departments law-making and law-executing 
 and have not deemed it expedient to complicate the dis- 
 cussion by reference to any further sub-divisions of these 
 two departments. There is however a very distinct division 
 of the executive department into branches, administrative 
 and judicial ; the former concerned with what we may call 
 the ordinary administration of public affairs, while upon 
 the latter devolves the duty of expounding, applying and 
 enforcing law between litigants (). 
 
 Tribunals for the administration of justice are an indis- 
 pensable adjunct of any system of civilized government, 
 and if there can be degrees of importance in connection 
 with such a matter, we would say that in every country 
 where government is a government-according-to-law, due 
 recognition of the authority of the courts is of vital im- 
 portance to good government ; and particularly is this the 
 case where the field for the exercise of the functions of 
 government, both legislative and executive, is divided, and 
 
 (a) Of late years there is apparent a tendency to clothe the judiciary 
 with what may be termed " advisory " functions, in aid of the Executive. 
 See R. S. C. c. 135, ss. 37 and 38, and cases noted in Cassel's Dig.; R. S. O. 
 c. 44, s. 52, s-s. 2 ; Attorney-General for Canada v. Attorney-General for 
 Ontario, 20 O. R. 222 ; 19 0. R. 31. Also see R. S. O. c. 225 ; I re R. C. 
 Separate Schools, 18 O. R. 606. The policy of this innovation is ques- 
 tionable. The Courts of the United States have steadily declined to 
 -exercise any such functions. See Mich. Univ. Law Lectures, 1839.
 
 224 THE CANADIAN CONSTITUTION. 
 
 where, in consequence, the courts have necessarily to decide 
 on the validity or invalidity of legislative enactments, and 
 >f executive action founded thereon (b). \/ 
 
 The decision of any case which may come before a court 
 >f law, involves the application of law to the facts as they 
 jmay be admitted, or judicially determined, to exist. Out 
 )f every fact, or set of facts there arise " legal relations," 
 ind, as was pointed on\ in the last chapter (c), there can 
 
 no conflict of law in reference to any given legal rela- 
 ftion, for the law applicable to any given . circumstances 
 to any stated f acts-^is presumedly capable of definite 
 exposition. It may happen, therefore, tlmfr-in a case arising 
 in a Canadian court, the law which governs tlie legal rela- 
 tions which arise out of the facts of the case may be, not 
 the law laid down in either Dominion or Provincial statutes ; 
 not, strictly speakly (d), the law of Canada at all ; not even 
 Imperial law; but the law of a foreign country. In 
 accordance with that comity between nations, which is now 
 recognized by the tribunals of all civilized countries, those 
 tribunals do not, where the facts out of which the litigation 
 arose occurred in a foreign country, limit the enquiry to 
 what is the law which would govern in case those facts 
 had occured within its own territory. Indeed, inci'imi iil 
 matters, that is to say, where a person is being prosecuted 
 for acts committed abroad, English courts have laid down 
 the rule that such prosecution can only be had in the 
 country where the crime was committed. The administra- 
 tion of international justice, if we may use the expression. 
 is secured in such a case, by handing over the alleged 
 offender to the officers of the country in which the offence 
 is alleged to have been committed ; and the jurisdiction of 
 English tribunals has been limited to a preliminary enquiry 
 as to the existence of a /ii-inm fucie case. With regard to 
 matters, the tribunals of most civilized states do not 
 
 (b) See ante, p. 172. (c) See ante, p. 214. 
 
 (d) In a sense, the rules of international law are part of the jurispru- 
 dence of nearly every civilixerl state.
 
 OUR JUDICIAL SYSTEM. 225 
 
 recognize any such local venue for their trial. It is beyond 
 the scope of this work to enumerate the various conditions 
 precedent to jurisdiction, laid down in the jurisprudence of 
 the different civilized states, but in all such actions as the 
 courts do entertain, they give effect to legal rights and 
 obligations which may arise out of transactions occurring 
 abroad ; and it may happen, therefore, that any modern 
 tribunal may be called upon, at times, to determine, and 
 practically to administer, the law of a foreign country (e). 
 
 Every tribunal is, in a sense, subject to territorial limits 
 of jurisdiction. It would be inconsistent with the sover- 
 eignty of the different states into which this world is/ 
 divided, were the judgments of the courts of any one state) 
 enforcible, proprlu ;<)< >,>>', in the others. But, even within, 
 the saiiic stale, the .territorial jurisdiction oT courts of law 
 may be limited. Their jurisdiction, too, may be in many 
 other ways limited and defined, by reason of the subject 
 matter in litigation. Some courts may have jurisdiction 
 over all classes of matters, and throughout the entire 
 territory of the state; others again may have the same 
 wide territorial jurisdiction, but may be restricted to 
 matters of minor importance, or involving smaller amounts. \ 
 But, however their jurisdiction may be limited, territorially 
 or otherwise, there may arise for determination by them, 
 cases in which the law to be applied is not law laid down 
 by the power t< > which they owe their creation. 
 
 There is hardly any line of division founded upon the 
 nature of the subject matter in litigation, which may not 
 be, or has not . been, adopted in some one country or an- 
 other: but it is not of importance here to pursue this 
 general inquiry further. It is of importance to note that, 
 both in the United States and in Canada, the jurisdiction 
 of a court may be, and in many cases in the former is, 
 
 (e) What is the foreign law in such cases is, in British jurisprudence, 
 enquired into as a matter of fact, and must be proved by the evidence of 
 experts versed in such foreign law. 
 CAN. Con. 15
 
 226 THE CANADIAN CONSTITUTION. 
 
 limited to the adjudication of causes arising out of matters 
 within the exclusive competence of one or other of the 
 different legislative bodies existing therein. A.S a question 
 of jurisdiction, therefore, in such case, it may be necessary 
 to determine just where the line of division between the 
 different legislatures, should be drawn. In this connection, 
 we may note too, that it may though not of course as a 
 question of jurisdiction devolve upon Canadian courts to 
 determine like questions, as to the line of division between 
 the federal and state legislatures in the adjoining Republic. 
 It is, however, only in exceptional cases that the jurisdic- 
 tion of a Canadian court of law will depend upon the 
 determination of the line of division between the different 
 Canadian legislative bodies (/). We have dwelt upon these 
 lifferent considerations in order to make clear that every 
 ourt, by whatever authority created, or whatever its juris- 
 diction, territorially or otherwise may be, may be called upon 
 ;o determine, and practically to administer, Imperial law, 
 Dominion law, Provincial law, or even foreign law, in order 
 ;o determine the rights of litigants. 
 
 Putting it broadly, a court of law may be said to be 
 I an organization created with a view to the determination 
 \ of facts, and the exposition and enforcement of the law 
 \ applicable to those facts, between parties who are at 
 I variance upon these points. In the performance of its 
 duty, certain procedure has to be adopted, and a certain 
 administrative staff has to be made part of this organiza- 
 tion in order to secure the enforcement of the judgments 
 of the court. Over these again may be established appel- 
 late courts. But whatever the details of the organization 
 3 nay be, and aside altogether from the question what 
 government should create courts, or whether both Dominion 
 I s and Provincial governments should have such power, it 
 \ would seem expedient, to say the least, that the whole 
 i matter of the constitution of an}' given court should be in 
 
 (/) See pout, p. 22K.
 
 OUR JUDICIAL SYSTEM. 227 
 
 the hands of one and the same government (</). If differ- 
 ent parts of the machinery of any court are supplied to it 
 by different authorities, it must necessarily be a very 
 difficult matter to fix responsibility for a miscarriage of 
 justice in any given case, unless the cause of such mis- 
 carriage can be definitely located, and be decisively assigned 
 to some particular part of the machinery of the court. 
 
 The Imperial parliament, as the supreme power in 
 government throughout the British Empire (h), may 
 establish courts within the limits of any one of the colonies 
 of Great Britain, and, as a matter of fact, we have, in 
 Canada, Vice-Admiralty courts of Imperial creation, the 
 "jurisdiction of which is defined by Imperial statutes. What 
 we must note is that in administering law within the sphere 
 of their jurisdiction, these Vice- Admiralty courts are not 
 limited to the enforcement of Imperial law, but must, 
 should occasion arise (as it ma}* in any court of law), 
 expound and practical!}* administer Canadian law (i). 
 But, with the exception of the special class of cases which 
 come before those courts, the administration of justice, 
 usino- that term in its widest sense, in Canada, is left to 
 
 O 
 
 courts of Canadian creation. 
 
 At the date of Confederation, there were in existence, in 
 the different provinces, a large number of courts of law ; 
 and, for some years thereafter, the administration of justice 
 throughout Canada was in the hands of these provincial 
 courts, sec. 129 of the B. N. A. Act expressly providing, that 
 all laws <i,nl nil coi.i.rt* of <; i ) II and criminal jurisdiction, 
 and all legal commissions, powers, and authorities, and 
 all officers, judicial, administrative and ministerial, existing 
 in the different provinces at the Union, should continue as 
 if the Union had not been made. Except, therefore, as 
 
 (g) See pout, p. 234 and notes to B. N. A. Act, sec. 91, s-s. 27, and sec. 
 52, 3.3. 14. and sec. 96, et seq. 
 (h) See Chap. IV., ante. 
 (/) Redpath v. Allen, L. R. 4 P.C. 511 ; see ante, p. 19-5
 
 228 THE CANADIAN CONSTITUTION. 
 
 otherwise provided in the Act ( j), and subject to any 
 changes which have since been made in the organization of 
 these courts, the limits of their jurisdiction are, in principle, 
 in no wise altered. Any alteration in the jti >!*<( let lo,i of 
 these pro-Confederation provincial courts over matters 
 within the legislative competence of the Parliament of 
 Canada can, it is submitted, be effected only by Dominion 
 legislation (/.;). Until so altered their jurisdiction co ntinuea 
 '' subject nevertheless ... to be .. altered by the 
 Parliament of Canada or by the legislature of the respective 
 province, accor<li n;j to the authority of the ParliaTnent or of 
 that legislature under this Act." It would unduly swell this 
 volume if we were to attempt to enumerate these different 
 courts, or to indicate their different jurisdictions. We 
 may say, however, that there were in all the provinces, 
 'courts modelled upon the principle of the Superior Courts 
 of law in England, whose jurisdiction territorially was 
 limited only by the boundaries of the respective provinces 
 in which they were established, and* under these, and as a 
 rule subordinate to them, were various other courts whose 
 jurisdiction was limited as to the class of matters which 
 might be entertained by them (without territorial limita- 
 jjon) (),or was subject to limitations along both lines (m);J?ut, 
 it is almost unnecessary to say, there was no limitation t' 
 jurisdiction in any provincial court, along any line identical 
 with, or in any sense analogous to, the line of division n< >w 
 existing between matters within the legislative competence 
 of the Dominion parliament, and the provincial legislative 
 assemblies, respectively. // 
 
 If it be permissible to express an opinion as to what 
 was anticipated by the framers of the B. N. A. Act, we 
 
 (j) See sec. 101 of the B. N. A. Act and notes thereto; also pott, p. 229. 
 (k) See re Boucher, noted in Cassel'a Dig. S. C. p. 181, and referred 
 to in the judgment of MacMahon, J., in Reg. v. Toland, noted post, p. 236. 
 (I) e.a., County Courts in Upper Canada. 
 (TO) t'.</., Division Courts.
 
 OUR JUDICIAL SYSTEM. 229 
 
 should s&y that it was intended that, in the main, the 
 administration of justice, throughout Canada, should be 
 through the medium of these provincial courts, thus con- 
 tinued. This is clearly evidenced by the assignment to the 
 provinces of the power to exclusively make laws in rela- 
 tion to "the administration of justice in the province, in- 
 cluding the constitution, maintenance and organization of 
 provincial courts, both of civil and criminal jurisdiction" (??). 
 As, however, cases would inevitably arise, involving con- 
 sideration of the powers of the Dominion and Provin- 
 cial legislatures respectively, and with a view, perhaps, to 
 securing uniformity of decision on such important ques- 
 tions throughout the whole Dominion, the B. N. A. Act 
 provides (section 101), that "the parliauiP"* ^ f ^ Qi mda 
 may, notwithstanding anything in this Act, from time to 
 time, provide for the constitution, maintenance and orp'am- 
 ^ation, of a general Court of Appeal for Canada (o), and 
 for theestablishment of any additional ._ courts for the 
 better administration of the laws of Canada." The phrase- 
 ology of the last clause oi' this section is a clear recognition 
 of the fact that the provincial courts would necessarily be 
 called upon to administer the laws of Canada (j>) (as dis- 
 tinguished from the laws of the various provinces), and 
 the provision was inserted with a view to the better admin- 
 istration of those Dominion laws through the medium of 
 additional courts established by the Dominion government, 
 should occasion arise. The jurisdiction of such additional 
 
 *j 
 
 courts, established by the Dominion government, must be 
 a special jurisdiction, limited to cases arising out of those 
 matters only which are within the competence of the 
 Dominion parliament. This is the only case in Canadian 
 jurisprudence where the jurisdictional line, if we may use 
 
 (n) B. N. A. Act, s. 92, s-s. 14. 
 
 (o) See R. S. C. c. 135. The Supreme Court of Canada was es- 
 tablished by 38 Vic. c. 11 (Dom.), and became a court on January 11, 
 1876; see Reg. v. Taylor, 1 S. C. R. 65. 
 
 (p) See Resolutions Nos. 31 and 32, printed in Appx.
 
 230 THE CANADIAN CONSTITUTION. 
 
 that expression, is co-incident with the line which divides 
 the legislative powers of the Dominion and the provinces (q). 
 The provinces, in establishing courts, may, but are not 
 bound to adopt any such jurisdictional line. The Dominion 
 is so limited except in the case of its "general Court of 
 Appeal" the Supreme Court of Canada, 
 
 What has taken place since Confederation, serves to' 
 support the view we have expressed as to what was an- 
 ticipated by the Fathers of Confederation. The only 
 additional courts which have been established by the 
 Dominion government, are the Exchequer Court of Canada. 
 and the Maritime Court of Ontario, each with a specially 
 limited jurisdiction, sufficiently indicated by its name (r). 
 But any duly created court, no matter by what authority 
 created, or by what authority the different parts of its. 
 machinery may be supplied, may be called on to determine 
 cases involving the application of either Dominion or Pro- 
 vincial law; and this observation applies even to the special 
 courts of Dominion creation, for, although of limited juris- 
 diction as above indicated, incidental legal relations, depend- 
 ing upon provincial laws, may have to be determined in 
 order to a decision in any given case. 
 
 Any government may take advantage of the actual 
 existence within its territorial limits of an organized court 
 of law, to impose on its judges and administrative staff' 
 duties (in relation to matters within its "sphere of author- 
 ity") other than those imposed upon them by the power 
 which created the court, and whether this action is to be 
 
 (q) See ante, p. 225-6. 
 
 (r) Note, however, in re The Bell Telephone Co., 7, O. R. 605 ; in- 
 which it was held by Osier, J.A., that a court or judicial tribunal was 
 established by sec. 28 of the Patent Act of 1872, which provided that 
 in case disputes should arise as to the validity of patents (in certain 
 cases), such disputes should be sett lid by the Minister of Agriculture or 
 his deputy, whose decision should be tinal ; and that the constitution of 
 such a court was infra virei of the Dominion parliament. See B. N. A. 
 Act, sec. 91, s-s. 22. See, however, 9 O. R. 331. We should, perhaps, 
 refer also to the Revising Officars.' Courts under " The Electoral Franchise 
 Act " as to which see post, p. 240.
 
 OUR JUDICIAL SYSTEM. 231 
 
 considered as the creation of a new court, with the machin- 
 ery of the old, or as the conferring of a new jurisdiction 
 upon the old, seems to be considered by the Judicial Com- 
 mittee of the Privy Council, a matter of indifference (s}. 
 The question has come up in various ways, and the 
 principle must now be considered as authoritatively estab- 
 lished. As an extreme instance of its application, we 
 may cite the case of Attorney-General v. Flint (t), in 
 which it was held by the Supreme Court of Canada, that 
 it was competent for the Dominion parliament to confer 
 upon tlie Vice-Admiralty Court, existing in Nova Scotia 
 under Imperial authority, jurisdiction to entertain pro- 
 ceedings for enforcing payment of penalties"*for breaches of 
 the Inland Revenue Act. It appears to have been the 
 opinion of some at least of the Judges of the Supreme 
 Court, that a judge of a Vice-Admiralty court might 
 decline to take upon himself the burden of such cases, but 
 the jurisdiction so to do, they held to be beyond question. 
 It cannot of course be doubted that if the Imperial 
 parliament, in the exercise of its legislative supremacy, 
 were expressly to prohibit such court from entertaining- 
 other than matters arising under Imperial legislation, such 
 prohibition would be operative, but in the absence of such 
 prohibition, it is difficult to see how, as Canadian citizens, 
 the judges and staff of the court could lawfully decline to 
 perform the duties imposed upon them by Canadian 
 law (ti>. 
 
 Prior to Confederation, the decision, of controverted 
 election cases had been entirely in the hands of the differ- 
 ent Provincial legislatures, and after Confederation the 
 Dominion parliament exercised the same jurisdiction over 
 
 (s) Valin v. Langlois, 5 App. Cas. 115, passage quoted post, p. 232. 
 
 (t) 16 S. C. R. 707. See also " The Farewell," 7 Q. L. K, 380. 
 
 () " Judges as citizens were bound to perform all the duties which 
 are imposed upon them by either the Dominion or Local Legislature " 
 per Dorion, C.J., in Urunsau v. M -issue, '26 L. C. Jur. CO.
 
 232 THE CANADIAN CONSTITUTION. 
 
 elections to the Dominion House of Commons ; but in 
 1873-4, the Dominion parliament decided to transfer this 
 jurisdiction to the provincial courts. Their power so to do 
 was distinctly upheld by the Judicial Committee of the 
 Privy Council, (affirming the decision of the Supreme 
 Court of Canada) in the well-known case of Valin v. Lan- 
 glois (v}, in which Lord Selborne in delivering the 
 judgment of the Committee says : 
 
 " There is therefore nothing here to raise a doubt about the 
 power of the Dominion parliament to impose new duties upon the 
 existing provincial courts, or to give them new powers as to 
 matters which do not come within the classes of subjects assigned 
 exclusively to tb,e legislatures of the provinces." 
 and he afterwards characterizes the distinction which 
 was endeavored to be drawn between the Act of 1873, 
 which entrusted the trial of election petitions to the judges 
 of the Supreme Court, and the Act of 1874, which 
 entrusted this jurisdiction to the provincial com ts. as " but 
 a nominal, a verbal, and an unsubstantial distinction." 
 
 The validity of the Act, 31 Vic. c. 76 (Dom.), which pro- 
 vided for utilizing the machinery of the provincial courts 
 for the taking of evidence for use before foreign tribunals. 
 has been affirmed by the courts of both Ontario and 
 Quebec (?/) 
 
 Somewhat the same question arose in Ontario in the 
 cases of Wilson v. McGuiiv (.">. and Gibson v. McDonald (y)- 
 Count}' Court judges in that province are appointed by the 
 Dominion government (z). Division Courts existed in the 
 various counties of that province prior to Confederation- 
 and had always been presided over by the judge of the 
 County Court of the particular county. By an Act of the 
 
 (v) 5 App. Cas. 115, affirming 3 S. C. R. 1. 
 
 (ic) In re Wetherell & Jones, 4 O. R. 713 ; A'.r^irfe Smith, 16 L. C. 
 Jur. 140; and see notes to the opening clause of sec. 91 of the B. N. A. 
 Act, post. 
 
 (.r) 2O. R. 118. (y) 7 O. R. 401. 
 
 (z) B. N. A. Act, sec. W.
 
 OUR JUDICIAL SYSTEM. 233 
 
 Provincial Assembly (a), it was provided, in effect, that 
 two or more counties might be grouped together for the 
 purpose of facilitating the conduct of business in the Divi- 
 sion courts of the grouped counties, and that the judges of 
 the County courts of those counties might arrange for 
 taking the work in rotation throughout the entire group. 
 The validity of this Act was upheld in Wilson v. 
 McGuire (b). In Gibson v. McDonald, it was held that 
 a somewhat similar arrangement as to the General Sessions 
 of the Peace in the different counties of Ontario, was 
 invalid, and there is no doubt that the correctness of the 
 earlier decision must be deemed somewhat impugned by 
 this case. The point on which the latter decision rests, 
 however, is the very narrow one, that the judge of the 
 County Court of one county was sitting as Chairman of 
 the General Sessions in another, "and not otherwise tin in 
 by virtue of }>i* office "* j '.'<'! ye of the Count;/ Court of ///* 
 own run at, /" and that this he had, under his commission, 
 110 right to do. Armour, C.J., expressly reserved the ques- 
 tion as to the power of the provincial assembly to provide 
 that the judge of the County Court of one county shall be 
 Chairman at the General Sessions of the Peace in another, 
 and the decision therefore Only goes to this length, that a 
 County Court judge can act as such only in the county for 
 which he is appointed, by the Governor-General in Coun- 
 cil, under section 96 of the B. N. A. Act. Taken together, 
 these two cases support our proposition. A Provincial 
 government can impose upon the individual who is County 
 O >urt judge, duties (falling of course within the range of 
 matters of provincial cognizance) other than those covered 
 by his commission from the Governor-General, care being 
 necessary perhaps in defining that those super-added duties 
 
 (a) R. S. O. (1877) c. 42. 
 
 (?) 2 O. R. 118, Armour, J., dissenting. It is to b3 noted that the 
 majority of the Court expressly limited their judgment to affirming the 
 validity of the Act, in its bearing on Division Courts.
 
 234 THE CANADIAN CONSTITUTION. 
 
 are when exercisable otherwise than in his own Count v 
 Court to be exercised by him, not qua County Court 
 judge, but qua provincial officer. 
 
 With regard to the creation of courts by the Dominion 
 Government, the scheme of the B. X. A. Act is logical, 
 while as to those Provincial courts mentioned in section 96 
 of the B. X. A. Act, the scheme is quite the reverse. We 
 do not rely upon any possible complication which may 
 arise from the way in which " procedure ' is treated by the 
 Act (c). It is difficult, in many cases, to distinguish be- 
 tween law and "procedure." In its narrow sense "pro- 
 cedure" relates simply to the organic working of a court. 
 and is not supposed to affect rights, or to alter the legal 
 relations arising out of any given facts ; while in a wider 
 sense it may have a most potent effect along both lines (d\ 
 Of this, however, more anon. The method of organizing 
 those provincial courts mentioned in section 96 is illogical 
 in this, that the machinery of those courts is supplied 
 partly by the Dominion government and partly by the 
 Provincial, with the resultant difficulty in fixing responsi- 
 bility to which reference has already been made (e). The 
 power to appoint, necessarily carries with it the power to 
 determine the tenure of office (subject, as to the Superior 
 Court judges, to section 99), and therefore the power to 
 dismiss. This power of appointment and dismissal rests 
 with one government; another government defines the 
 duties of the office an arrangement certainly unique under 
 a British constitution. But, except in so far as this peculiar 
 arrangement affects the law of our constitution, further 
 comment upon it is, perhaps, out of place here. 
 
 However constituted, the Provincial courts have, we 
 a-ain repeat, to administer Dominion as well as Provincial 
 law, and this is perhaps the proper place to advert more 
 
 (c) Compare s. 91, s-s. 27, and s. 92, s-s. 14. 
 
 (d) See Exchange Bank v. Reg., 11 App. Cas. at p. 169. 
 
 (e) See ante, p. 227.
 
 OUR JUDICIAL .SYSTEM. 235 
 
 fully to the question of "procedure" alluded to in the last 
 paragraph. On this question considerable divergence of 
 view is apparent in the cases (/), arising largely from the 
 differing constructions placed upon the words " procedure in 
 civil matters in those courts " in section 92, sub-section 14. 
 Taking that sub-section alone, and noting the sharp distinc- 
 tion drawn between criminal and civil jurisdiction, and 
 that together they are exhaustive of the whole field, the 
 plain meaning is, that " procedure," in all matters other 
 than criminal, is subject to the exclusive legislative power 
 of the provincial legislatures, and there would appear to 
 be no warrant therefore for the opinion that " procedure in 
 civil matters " in this sub-section must be read as limited to 
 proceedings in relation to matters over which the provin- 
 cial legislatures have exclusive legislative power (g). But 
 what is "procedure" \ We have already noted that the 
 word is capable of two very different interpretations. It 
 is only used once in section 91, and once in section 92, and 
 a comparison of the two sub-sections in which it occurs 
 will suffice to show that in sub-section 27 of section 91, it 
 has the wide, and in sub-section 14 of section 92, the nar- % 
 rower meaning. " The criminal law . . including the 
 procedure in criminal matters," would indicate the view of 
 the framers of the B. X. A. Act, that " procedure in 
 criminal matters " is an essential and necessary part of 
 criminal law ; while " the constitution, maintenance, and 
 organization of provincial courts, iiida<lin<j procedure in 
 civil matters," would appear to point to the " procedure " 
 incident to the organic working of the courts. In a sense, 
 statutory regulation of procedure in any, the most im- 
 material, step of a cause may affect rights and obligations,. 
 
 (/) See notes to B. N. A. Act, s. 92, s-s. 14, where the cases are col- 
 lected. 
 
 (g) See Peak v. Shields, 8 S. C. R. at p. 591. " Matters " is here used 
 in two very different senses. " Civil matters,'' we take it, is but another 
 way of saying civil actions, suits, or other judicial proceedings ; while 
 "matters over which, etc.," refers to subject matters for legislative 
 action.
 
 236 THE CANADIAN CONSTITUTION. 
 
 but only in a very secondary sense. No idea of altering 
 those legal relations which arise from any facts irrespec- 
 tive of any litigation in reference thereto, is present to the 
 mind of the legislature in laying down such statutory 
 regulations, and it is this sort of " procedure " that is re- 
 ferred to in sub-section 14 of section 92: while as to criminal 
 matters, " procedure," from the laying of the information 
 to the infliction of the penalty, is carefully treated as a 
 component part of criminal law, the various safeguards 
 thereby created forming part of the " rights " of persons 
 accused of crime (k). So far as procedure is of this sort 
 a necessary and practically component part of legislation 
 relative to any of the classes of matters within the com- 
 petence of the Dominion parliament it is an acvrss. >ry 
 which follows its principal. 
 
 The cases under the B. N. A. Act bear us out, we think, 
 in this distinction. As to criminal law, section 91, sub- 
 section 27, is a clear indication that " procedure in criminal 
 matters" is such component part of that law, although, as 
 will appear later, the term "criminal law" in Canadian 
 jurisprudence is a term of limited scope : but as to laws 
 relating to matters other than crimes, a perusal of the 
 various sub-sections of section 91 discloses many matters. 
 any legislation on which must involve procedure, of which 
 matters, procedure is a component part. Maritime law is a 
 branch of jurisprudence which falls within "Navigation 
 and Shipping "(?'), and its peculiarly peremptory /'// rem 
 procedure is an essential part of any such law, practically 
 creative of rights and obligations. And so of divorce law, 
 ] latent law ( /'). insolvency law, and election law: and 
 
 (/i) Since the above was written Mr. Justice McMahon has handed 
 out his judgment in Reg. v. Toland, holding that 53 Vic. c. 18, s. 2 (Out.), 
 giving to a police magistrate rower to try certain offences under R. S. C. 
 c. 1C5, " An Act respecting Forgery," is ultra rire* of a provincial legis- 
 lature. (/) Sec. '.)!, s-s. 10; see " The Picton," 4 S. C. R. til*. 
 
 (j) See In re The Tell Te'ephone Co., 7 O. R. 60-3, cited in foot note 
 suite, p. 230. Aitche>on v. Mann, 9 P. R. 253, 473.
 
 OUR JUDICIAL SYSTEM. 237 
 
 perhaps other branches of jurisprudence may be found 
 wrapped up in the various sub-sections of section 91. The 
 leading- cases on the subject are those involving consider- 
 ation of insolvency law and election law. The extent to 
 which the Dominion parliament, by legislation under sub- 
 section 21 of section 91, "bankruptcy and insolvency," is 
 empowered to interfere with "procedure in civil matters 
 in the province," came up for consideration before the 
 Judicial Committee of the Privy Council, in the case of 
 Gushing v. Dupuy (k), and was disposed of in the judgment 
 of that tribunal in these words : 
 
 "It was strongly contended that the parliament of Canada 
 could not take away the right of appeal to the Queen from final 
 judgments of the Court of Queen's Bench, which, it was said, 
 was part of the procedure in civil matters exclusively assigned to 
 the legislature of the province. The answer to this objection is 
 obvious. It would be impossible to advance a step in the con- 
 struction of a scheme for the administration of insolvent estates, 
 without interfering with and modifying some of the original 
 rights of property, and other civil rights, nor without providing 
 some mode of special procedure for the vesting, realization, and 
 distribution of the estate, and the settlement of the liabilities of 
 the insolvent. Procedure must necessarily form <tn essential jxntnf 
 nni/ laic dealing irit/i insolvency. It is therefore to be presumed, 
 indeed it is a necessary implication, that the Imperial statute, in 
 assigning to the Dominion parliament the subjects of bankruptcy 
 and insolvency, intended to confer on it legislative power to 
 interfere with property, civil rights and procedure within the 
 provinces, so far as a general law relating to those subjects might 
 affect them." 
 
 The power of the Dominion parliament to regulate the 
 procedure in connection with the trial, by provincial 
 courts, of controverted election cases, arising out of 
 elections to the House of Commons, has scarcely been 
 questioned. The language of the Judicial Committee of 
 the Privy Council, in Gushing v. Dupuy, applies 
 
 (k) 5 App. Cas. 409.
 
 238 THE CANADIAN CONSTITUTION. 
 
 to legislation upon this subject, which by section 
 41 of the B. N. A. Act, is clearly with the Dominion parlia- 
 ment (I). The controversy which has arisen as to the 
 ] K wer of the Dominion parliament to refer such cases for 
 determination by provincial courts, has been settled in 
 affirmance of the power (971). 
 
 So- far as provincial courts are concerned, the provin- 
 cial legislatures have full control of them, subject only to 
 the appointing power of the Dominion government in 
 reference to those mentioned in section 96 of the B. N. A. 
 Act the Superior, District, and County Courts in each 
 province, excepting the Probate Courts of Nova Scotia and 
 New Brunswick and to the power of the Dominion parlia- 
 ment to regulate the procedure in the sense above 
 explained. This jurisdiction over provincial courts is not 
 limited to those which were in existence at the Union, but 
 extends to the creation of such new provincial courts (/>), 
 with such jurisdiction, and with such judicial and adminis- 
 trative staff, as to the provincial legislature may seem 
 proper for " the administration of justice in the province," 
 which phrase is used in its widest sense. It covers the 
 appointment of all office rs connected with the administra- 
 tion of justice (o), with the exceptions noted. The question 
 has been much discussed in connection with the appoint- 
 ment of police magistrates and justices of the peace, and 
 has been complicated somewhat by considerations as to the 
 prerogatives of the Crown in this connection. With this 
 phase of the question we have already dealt (j>). It is 
 now settled, subject to review by our Supreme Court, and 
 the Judicial Committee of the Privy Council, that the 
 
 (I) See notes to that section, post. 
 
 (m) See ante, pp. 231-2, and notes to s. 41 of the B. N. A. Act, post. 
 
 (n) Reg. v. Coote, L. R. 4 P. C. 599 ; .Ganong v. Bayley, 1 Pug. A: 
 Burb. 324. 
 
 (o) Reg. v. Bush, 15 O. R. 398, per Street, J. See passage quoted 
 pott. (p) See Chap. VI., and Chap. VIII. ante, p. 165.
 
 OUR JUDICIAL SYSTEM. 239 
 
 appointment of justices of the peace and police magistrates, 
 relates to "the administration of justice " (which term is to 
 1 >e read in its broad sense, and qualified only by the power of 
 the Dominion parliament under sections 96 and 101), and 
 rests therefore with the provinces. The situation is thus 
 summed up by Armour, C.J., in Reg. v. Bush (q) : 
 
 " Laws providing for the appointment of justices of the peace 
 are, it is contended, and I think rightly, laws in relation. to the 
 administration of justice, for the appointment of justices ot the 
 peace is a primary requisite to the administration of justice ; and 
 if this contention be correct the passing of such laws is exclu- 
 sively within the power of the provincial legislatures. 
 
 l There is a considerable weight of judicial opinion in favor 
 of this contention, and although not binding upon us, yet in a 
 matter of construction such as this, it ought not to be lightly 
 dissented from." 
 
 And he refers to a number of authorities, which will be 
 found collected in the notes to section 92, sub-section 14. 
 Mr. Justice Street says, referring to the language .of sub- 
 section 14 : 
 
 " Now, these words, standing alone and without any interpre- 
 tation or context, appear to me to be sufficient, had no other 
 clause in the Act limited them, to confer upon the provincial 
 legislatures the right to regulate and provide for the whole 
 machinery connected with the administration of justice in the 
 provinces, including the appointment of all the judges and 
 officers requisite for the proper administration of justice in its 
 widest sense, reserving only the procedure in criminal matters." 
 
 And he refers to sections 96, 100, and 101 as the only 
 sections in any waj- limiting the meaning to be given to 
 sub-section 14, and then proceeds: 
 
 "Everything coming within the ordinary meaning of the 
 expression, " the administration of justice," not covered by the 
 sections which I have referred to, therefore, remains, in my 
 opinion, to be dealt with by the provincial legislatures, in pur- 
 suance of the powers conferred upon them by paragraph 14 of 
 section 92." 
 
 (q) 15 O. R. 398.
 
 240 THE CANADIAN CONSTITUTION. 
 
 In re Simmons and Dalton (r), it was held by Mr. Justice 
 Proudfoot that the High Court of Justice for Ontario the 
 " Superior Court " of that province has jurisdiction to 
 supervise the exercise of judicial functions by a " federal 
 Court e.fj., the Revising Officers Court under " The Elec- 
 toral Franchise Act" (R. S. C. c. 5) but this decision has 
 been overruled by the Divisional Court of the Chancery 
 Division (.s). 
 
 " The Chancery Division has, in common with the other 
 divisions of the High Court of Justice, plenary jurisdiction to 
 deal with matters of prohibition which concern the administration 
 <>f jiixtirf wit/tin Ontario as a pmrinrial unit. This (inherent) 
 power is circumscribed by the requirements of the province, and 
 operates, I think, only as to /"/r.s enacted by or in force in Ontario 
 l>ertainimi to matters of provincial coipu-nnce under the Ji. X. A. 
 Art." Per Boyd, C. 
 
 Courts, or judicial tribunals, established under Dominion 
 legislation limited as their functions must be to adminis- 
 tering Dominion law (t) are entirely outside of "the 
 administration of justice in the Province," and "are not 
 subordinate judicial Courts qaontl the Province." (c)- 
 
 (r) 12 O. R. 505. (>) re North Perth, '21 O. R. 538. 
 
 (t) See ante, p. 229. 
 
 (u) 21 O. R. at p. 543 ; se3 further on this subject, notes to s. 41 of 
 the B. N. A. Act, post.
 
 CHAPTER XII. 
 
 THE B. N. A. ACT, 1867, 
 
 30-31 Vic. CAP. 3. 
 
 An Act for the Union of Canada, Nova Scotia, and 
 New Brunswick, and the Government thereof ; 
 and for Purposes connected therewith. 
 
 [29th March, 1867.] 
 
 WHEREAS the Provinces of Canada, 
 Nova Scotia, and New Brunswick have 
 expressed their desire (i) to be feder- 
 ally (ii) united into one Dominion under 
 the Crown of the United Kingdom (iii) 
 of Great Britain and Ireland, with a Con- 
 stitution similar in principle to that of 
 the United Kingdom (iv) : 
 
 (i) " Have expressed their desire." This expression of 
 desire is to be found in the Quebec Resolutions, which will 
 be found printed in full in the appendix. See ante, p. 2. 
 
 (ii) " Federally." The use of this term would seem to 
 imply the continued existence of the parties to the fiedu*. 
 See chapter III., ante, p. 47 ; and see also the judgment of 
 the Privy Council in Liquidators of Maritime Bank v. 
 Receiver-General of Xew Brunswick (a). 
 
 (a) At present only reported in Times Law Reports for week ending 
 6th July, 1892 (Vol. VIII., p. 677). 
 CAN. CON. 16
 
 242 THE B. X. A. ACT PREAMBLE. 
 
 (iii) " Under the Crown of the United Kingdom." See 
 notes to section 2, post ; and see also, as to the necessary 
 saving of Imperial sovereignty in colonial legislation, chap- 
 ter IX., ante, p. 183, et seq. 
 
 (iv) " A constitution similar in principle, etc." For a 
 comparison and contrast of our system of government, with 
 those of the United Kingdom and the United States, see 
 chapter I. As to the limitation of this preamble to the 
 Dominion government only, and the harmlessness of such 
 limitation, see ante, p. 3, and chapter III. It is submitted, 
 however, that read in connection with clause 3 of this 
 preamble, it should be treated as a general reference to 
 the type of governmental machinery, and its working- 
 principle throughout both the Dominion and the various 
 provinces. 
 
 And whereas such a Union would 
 conduce to the welfare of the Provinces 
 and promote the interests of the British 
 Empire : 
 
 And whereas on the establishment 
 of the Union by authority of Parlia- 
 ment (i) it is expedient, not only that the 
 Constitution of the Legislative authority 
 (ii) in the Dominion be provided for, but 
 also that the nature of the Executive 
 Government (iii) therein be declared : 
 
 (i) " By authority of parliament." As to the legisla- 
 tive supremacy of the Imperial parliament over Canada, in 
 common with all other parts of the British Empire, see 
 chapter IV. In the early days of our colonial history 
 provinces were divided, and again joined together by the 
 Crown in the exercise of " prerogative," but as representa- 
 tive legislatures were in existence in the pre-Confederation 
 provinces, an}- attempt to effect their union otherwise than 
 by Act of the Imperial parliament would have been illegal.
 
 THE B. N. A. ACT SEC. 1. 243 
 
 See ante, p. 30, and chapter VI. ante, p. 140 ; and see also 
 notes to section 3, post . 
 
 (ii) " The legislative authority in the Dominion" As 
 to the control exercised by the executive department of the 
 Imperial government over Dominion legislation, see chap- 
 ier VII. ante-, p. 145, where will be found a full discussion 
 of sections 55, 56 and 57 of the B. N. A. Act. As to 
 colonial legislative authority and the limitations thereon, 
 see chapter IX. 
 
 (iii) " The nature of the executive government." As to 
 the necessary co-extension and practical oneness of the 
 spheres of authority of the legislative and executive 
 departments of government, see ante, p. 12 et seq., 22 et seq., 
 45 et seq., and chapter VI. See also notes to section 9, 
 pout. 
 
 And whereas it is expedient that pro- 
 vision be made for the eventual admission 
 into the Union of other parts of British 
 North America (i) : 
 
 (i) " The eventual admission of other parts of British 
 North Amerim." See sections 146 and 147, post, and Part 
 IV. of this book. 
 
 Be it therefore enacted and declared 
 by the Queen's Most Excellent Majesty, 
 by and with the advice and consent of 
 the Lords Spiritual and Temporal, and 
 Commons, in this present Parliament 
 assembled, and by the authority of the 
 same, as follows: 
 
 I. PRELIMINARY. 
 
 1. This Act may be cited as " The Short Title - 
 British North America Act, 1867 " (i).
 
 244 THE 13. X. A. ACT SEC. 2. 
 
 (i) Throughout this work we have adopted the shorter 
 mode of citation, "the B. X. A. Act." It should be pointed 
 out, however, that there are two other Acts similarly entitled, 
 namely, the B. X. A. Act, 1871 (b), and the B. X. A. Act, 
 1886 (c). By section 3 of the last-named Act, these three 
 statutes are to be construed together, and may be cited as 
 "The British North America Acts, 1867 to 1886." We 
 draw attention, too, to " The Parliament of Canada Act, 
 1875 (d), as to which, see notes to section 18, post. 
 
 2- The provisions of this Act refer- 
 o Her Ma j esty the Q U een extend 
 
 also to the heirs and successors of Her 
 Majesty, Kings and Queens of the United 
 Kingdom of Great Britain and Ireland (i). 
 
 (i) "Kings and Queens of the United Kingdom." - 
 The succession to the Crown of England is now regulated 
 by the Act of Settlement, 12 & 13 Wm. III. c. 2. By the 
 common law of England, upon the abdication of a sovereign, 
 parliament might re-settle the succession, and in compar- 
 atively modern times we have the precedent of the Bill of 
 Rights, 1 Wm. & Mary (st. 2), c. 2, by which it was de- 
 clared that, by his flight from the kingdom, James II. had 
 abdicated the throne, and the crown was settled upon Wil- 
 liam and Mary. Then came the Act of Settlement, to which 
 we have referred, settling the succession upon the Electress 
 Sophia, of Hanover, and her heirs, being Protestants. The 
 power of parliament to alter the succession is distinctly 
 affirmed in 6 Anne, c. 7, which adjudges traitors all who 
 affirm " that the kings or queens of this realm, with and by 
 the authority of parliament, are unable to make laws and 
 statutes of sufficient force and validity to limit and bind 
 the Crown and the descent, limitation, inheritance, <> ml 
 government thereof" While, as we have frequently pointed 
 
 (b) 34 & 35 Vic. c. 28 (Imp.); see pout. 
 
 (c) 49 & 50 Vic. c. 35 (Imp.); see post. 
 (</) 38 & 39 Vic. c. 38 (Imp.).
 
 THE B. X. A. ACT SEC. 3. 245 
 
 out, colonial legislatures have full power to curtail the pre- I 
 n>"utives of the Crown in connection with the executive 
 
 C? 
 
 government of a colony (e), this does not extend to enable 
 a colonial legislature to pass an Act affecting the position 
 of the occupant of the throne of England as Executive 
 Head throughout the Empire ; see Craw v. Ramsay, cite d 
 /////'. p. lcS4. See s. 9, post, and notes thereto. 
 
 II. UNION. 
 
 3- It shall be lawful (i) for the Queen, S e S n tion 
 by and with the advice of Her Majesty's 
 Most Honourable Privy Council, to de- 
 clare b}' Proclamation (ii) that on and after 
 a day therein appointed, not being more 
 than six months after the passing of this 
 Act, the Provinces of Canada, Nova Scotia, 
 and Xew Brunswick shall form and be one 
 Dominion under the name of Canada ; 
 and on and after that day those three 
 Provinces shall form and be one Do- 
 minion (hi) under that name accordingly. 
 
 (i) " It shall be lawful" See note (i) ante, p. 242 ; the 
 Proclamation of Union rests upon the express " authority 
 of Parliament," as intimated in the preamble. 
 
 (ii) Her Majesty's Proclamation bore date 22nd May, 
 1867, and provided that the Union should take effect on 
 July 1st of that }'ear. 
 
 (iii) " One Dominion." i.e., for all purposes of govern- 
 ment, legislative and executive, in relation to matters of 
 -common concern, leaving the component provinces their 
 full rounded autonomy in all other matters. " The object 
 of the Act was neither to weld the Provinces into one, nor 
 
 (e) See ante, p. 140 ; Exchange Bank v. Reg., 11 App. Gas. 157 ; 
 Liquidators of Maritime Bank v. Receiver-General of New Brunswick, 
 Times Law Rep., Vol. VIII., p. 677.
 
 246 THE B. N. A. ACT SECS. 4, 5. 
 
 to subordinate provincial governments to a central author- 
 ity, but to create a federal government in which they should 
 all be represented, intrusted with the exclusive administra- 
 tion of affairs in which they had a common interest, each 
 province retaining its independence and autonomy." Per 
 Lord Watson, in Maritime Bank v. Receiver General of 
 New Brunswick, Times L. R., Vol. VIII. p. 677. See the. 
 judgment quoted more at length in notes to section 58, post. 
 
 4- The subsequent provisions of this 
 Act vls f Act shall, unless it is otherwise expressed 
 or implied, commence and have effect on 
 and after the Union, that is to say, on and 
 after the day appointed for the Union 
 taking effect in the Queen's Proclamation;: 
 and in the same provisions, unless it is 
 otherwise expressed or implied, the name 
 Canada shall be taken to mean Canada 
 as constituted under this Act (i). 
 
 (i) " Canada as constituted under this Act." This- 
 Act must now be read in connection with the various Im- 
 perial " Orders in Council," passed under section 146, /><W, 
 and having, under that section, the force of Imperial statutes; 
 and with the Acts in amendment of this Act. See note to- 
 section 1, ante. . 
 
 Fn c*s Prov " 5- Canada shall be divided into four 
 
 Provinces (i), named Ontario, Quebec, 
 Nova Scotia, and New Brunswick. 
 
 (i) "Four Provinces." For the boundaries of the 
 Dominion, and of each of the different provinces of which it 
 is now composed, see Houston, "Constitutional Documents of 
 Canada," appendix B, p. 271. At the date of Confederation, 
 there were in existence in British North America three 
 other provinces, namely, Newfoundland, Prince Edward 
 Island, and British Columbia,; the balance of the territory
 
 THE B. X. A. ACT SEC. 6. 247 
 
 being unorganized, except in so far as the government of 
 the Hudson's Bay Company in Rupert's Land might be 
 deemed an organized government. Newfoundland has so 
 far declined all invitations to unite her fortunes with the 
 Dominion, although she was one of the provinces repre- 
 sented at the Quebec Conference. Prince Edward Island 
 and British Columbia have since joined, and the remainder 
 of British North America has been annexed to Canada, and 
 the province of Manitoba erected therein, so that there are 
 now seven "provinces" in the Dominion, exclusive of the 
 North West Territories. See Part IV. of this book. 
 
 6- The parts of the Province of Can- SKo?n? 
 ada (as it exists at the passing of this Que 
 Act) which formerly constituted respec- 
 tively the Provinces of Upper Canada and 
 Lower Canada shall be deemed to be 
 severed, and shall form two separate Pro- 
 vinces (i). The part which formerly con- 
 stituted the Province of Upper Canada 
 shall constitute the Province of Ontario; 
 and the part which formerly constituted 
 the Province of Lower Canada shall con- 
 stitute the Province of Quebec (ii). 
 
 (i) "Two separate provinces" See Quebec Resolu- 
 tions, No. 2. Although joined in legislative union under 
 Imperial Act, 3 & 4 Vic. c. 35 (" The Union Act"), the 
 difference in race, language, and legal systems justified the 
 popular description of the two parts of old Canada as "the 
 two Canadas." For an interesting sketch of the devices 
 resorted to, in order to work out the federal idea in the 
 government of these two parts of Canada, see Bourinot, 
 " Parliamentary Procedure and Practice," 2nd ed. p. 39, et seq. 
 The necessity, created by this severance of the two Canadas, 
 for the establishment of new governmental machinery in 
 each of them, and the argument founded on the clauses of
 
 248 THE B. X. A. ACT SECS. 7-9. 
 
 the Act which make provision therefor, will be found dis 
 cussed in chapter III. ante, p. 46. 
 
 (ii) See the judgment of Robinson, C.J., in Doe tf. 
 Anderson v. Todd (quoted ante, p. 104) for a statement in 
 reference to the boundaries of (old) Quebec. 
 
 7- The Provinces of Nova Scotia and 
 New Brunswick shall have the same 
 limits as at the passing of this Act (i). 
 
 (i) See foot-note ante, p. 46. 
 
 ?en c s e us nial 8- In the general census of the popu- 
 
 lation of Canada which is hereby required 
 to be taken in the year one thousand 
 eight hundred and sevemVr-one, and in 
 every tenth year thereafter, the respective 
 populations of the four Provinces shall 
 be distinguished (i). 
 
 (i) " Shall be distinguished." In order to a re-adjust- 
 ment of the representation, in the parliament of Canada, of 
 the respective provinces. See section 51, post, and notes 
 thereto. 
 
 III. EXECUTIVE POWER (i). 
 
 ix c ec a uve uof 9- The Executive Government and 
 Qu^n m 3 authority of and over Canada is hereby 
 
 declared to continue and be vested in the 
 
 Queen (ii). 
 
 (i) "Executive power." As to the necessary subordi- 
 nation of the executive to the legislative department of 
 government, see ante, p. 12. In reference to the govern- 
 ment of Canada as part of the Briti*/i Empire, the Queen's 
 authority as executive head of that Empire is subordinate 
 to the parliament of the United Kingdom, the supreme 
 Imperial legislative power: and her authority as executive
 
 THE B. X. A. ACT SEC. 9. 249 
 
 head of Canada (tJmf /'* in /(</<> reiice to our self-govern- 
 ment) is subordinate to the authority of Canadian 
 parliaments. In other words, in so far as the Imperial 
 parliament has reserved to itself, control over certain 
 subject matters, as being matters of Imperial concern (such 
 reservation being evidenced, either by express or implied 
 limitation upon the powers of the colonial legislature over 
 certain subject matters (/), or by the existence of Imperial 
 legislation upon these matters) (</), the executive authority of 
 the Queen is exercised subject to the control of the Imperial 
 parliament, i.e., by and with the advice of the executive 
 committee or Cabinet of the Empire ; while, on the other 
 hand, in so far as legislative power has been conceded to a 
 colonial legislature, the executive authority of the Queen is 
 exercised, through her representative, subject to the control 
 of the colonial legislature, i.e., by and with the advice of the 
 executive committee or Cabinet, Dominion or Provincial, 
 us the case ma}' be. We may here notice one particular 
 subject matter, which for obvious reasons is treated as \ 
 matter of Imperial concern, and in respect to which, 
 therefore, no legislative power is conceded to Canadian 
 parliaments ; the constitution, namely, of the connecting 
 links in the chain of executive government, from the 
 Imperial, through the Dominion, to the Provincial. The 
 executive government of the British Empire is, in truth, 
 in its Imperial, as well as its English aspect, a unit ; and 
 for the purpose of securing unity of national purpose and 
 method throughout the Empire, the appointment of the 
 local executive heads is so arranged that the execu- 
 tive department of that government which is pos- 
 sessed of the widest territorial jurisdiction, appoints the 
 executive head of the government next in extent, and 
 exercises executive supervision over its legislation; and so 
 on. We may here note that the Imperial government can 
 also exercise a legislative supervising nvp.r colonial legisla- 
 tion : the Dominion government is limited to the exercise 
 
 (/) See Chap. IX. (g) See Chap. IV.
 
 250 THE B. N. A. ACT SEC. 9. 
 
 of executive supervision to wit, the power of disallowance 
 over provincial legislation. Leaving out of consideration,, 
 however, the legislative supremacy of the Imperial parlia- 
 ment, what the Judicial Committee has said (h) in reference 
 to the relation between the Dominion and the Provinces, 
 in Canada : " No one of the parts can pass laws for itself 
 except under the control of the whole, acting through 
 the Governor-General : " is equally applicable substituting 
 the Queen for the Governor-General to the relation of the 
 colonies generally to the Empire. 
 
 Under existing arrangements, the Queen occupies a dual 
 position, being executive head of the Empire and, at the 
 same time, local executive head of the United Kingdom ;. 
 but the union, in one legislative body with one executive 
 committee or cabinet, of the power to legislate for the 
 whole Empire as well as specially for one of its territorial 
 divisions, leaves the line of division a purely "conven- 
 tional " one in this sense, at least ; that the power of the 
 Imperial parliament to alter the position of the line, is 
 restrained only by the " conventions," and not by the law 
 of the constitution ; but at any given moment of time the 
 line of division is a legal one. See ante, p. 11. 
 
 The Governor-General of Canada again occupies a dual 
 \position. He is one of the Imperial executive staff as well 
 Vis executive head of the Dominion. In the former capacity, 
 he is subject to Imperial executive authority, which, as we 
 have said, extends to all those subject matters, which, at 
 any given moment of time, are within the category of 
 matters of Imperial concern, controlled by Imperial legis- 
 lation, or from the other point of view uncontrollable 
 by colonial legislation. In regard to such matters his 
 actions are regulated by instructions, general or specific, 
 received from his official superior at home or by Imperial 
 statutes. In his capacity as executive head of the Domin- 
 ion, he acts by and with the advice of the Queen's Privy 
 Council for Canada, and is, in the exercise of his executive 
 
 (/*) Bank of Toronto v. Lanibe, 12 App. Gas. at p. 5S7.
 
 THE B. X. A. ACT SEC. 9. 251 
 
 authority in relation to matters within the legislative com- 
 petence of the Dominion parliament, subject to the control 
 of that body. His position with reference to the Lieuten- 
 ant-Governors of the several provinces, illustrates the dis- 
 tinction we have been trying to point out. The Dominion 
 parliament cannot provide any method for the appointment 
 of a Lieutenant-Governor, or for his removal, other than 
 that provided in the B. N. A. Act. It is deemed matter of 
 Imperial concern that there should be a single executive 
 head for each of the provinces ; that the Dominion execu- 
 tive committee or cabinet should appoint him ; and that, 
 once appointed, he should not be removed except for cause. 
 Any departure from the mode provided in the B. N. A. 
 Act would be illegal and nugatory, and in performance of 
 his duties in this connection, the Governor-General must* 
 as an Imperial officer, follow the Imperial statute, as that 
 statute may be authoritatively interpreted by his official 
 superior in England. As to the mode of appointment, the 
 B. X. A. Act is explicit the appointment must be by order 
 in council so that the question, who shall fill the position, 
 is left as a matter of local Canadian concern, to the deter- 
 mination of the Dominion Cabinet ; while as to the 
 removal of a Lieuteiiaiit-Governor, the B. N. A. Act is 
 equally clear in giving that power to the Governor-General 
 alone. That is to say, the Governor-General cannot, alone 
 legally appoint, but he can, alone, legally remove for cause. 
 This question is perhaps not of much practical importance, 
 because, in the Letellier case, the Imperial authorities laid 
 down the " conventional " rule for the guidance of the 
 Governor-General, that he should, in this matter of removal, 
 act by and with the advice of the Dominion cabinet ; but 
 should he at any time undertake to act upon his own 
 judgment a Lieiiteiiaiit-Govemor removed would legally 
 cease to be Lieutenant-Governor. The laying down of 
 this conventional rule has certainly very largely increased 
 the power possessed by the Dominion executive to interfere 
 in tlie affairs of the provinces ; but it was necessary, per-
 
 252 THE B. N. A. ACT SEC. 9. 
 
 haps, to the logical uniformity of the federal scheme. It is 
 perhaps more consonant with British notions to have the 
 real power coupled with real responsibility to the whole 
 electorate of the Dominion, in whose interests presumably 
 the power will be exercised in any given case. A political 
 cynic may perhaps think not mal apropos the remark of 
 Mr. Bumble when informed that a husband is, in law, pre- 
 sumed to control his wife : " If the law presumes anything 
 of the sort, the law 's a fool a natural fool." It is indeed 
 a serious question whether it would not be conducive to 
 the impartiality of the provincial executive heads to 
 make them entirely independent of Dominion executive 
 authority ; or whether any gain along this line would not 
 be more than counterbalanced by the loss of one item of 
 colonial self-government See notes to section 58, post. 
 
 (ii) " In the Queen." This section is declaratory 
 merely, and was inserted simply by way of abundant 
 caution, for, according to- Chitt}^, " the king of England is 
 not only the chief, but property the sole magistrate of the 
 nation, all others acting by commission from, and in due 
 subordination to him " (Mi). In an earlier chapter we have 
 treated at some length of the prerogatives of the Crown in 
 their relation to colonial government, see chapter VI.; and 
 we have endeavored to emphasize this legal principle that 
 these prerogatives of the Crown are nothing more than 
 powers vested by the common law of England in the execu- 
 tive head of the nation in aid of the execution of the laws 
 of the realm, and that, by Act of parliament, these prerog- 
 ative rights may be, and in a great many instances have 
 been modified turned into statutory powers or entirely 
 withdrawn. The question has been mooted, although per- 
 haps not of such practical importance, whether Her 
 Majesty could, in person, carry on the government of 
 Canada, or of one of the provinces ; it is submitted that 
 
 (Jili) See the judgment of the P. C. in Liquidators of the Maritime 
 Bank v. Receiver-General of New Brunswick, as yet reported only in 
 Times L. R., Vol. VIII. p. 677.
 
 THE B. N. A. ACT SEC. 10. 253 
 
 without repeal of the B. X. A. Act, she could not legally 
 do so. All the powers, authorities and functions necessary I 
 to " carrying on the government " of the Dominion and of 
 the respective provinces are, by the express terms of the 
 B. X. A. Act, vested in the Governor-General, or the Lieu- 
 tenant-Govemor, as the case may require (i) ; and by no 
 Act of Imperial executive authority could these express 
 provisions of this Imperial statute be overridden. In the 
 absence, therefore, of further Imperial legislation, we 
 must put up with Her Majesty's representatives. 
 
 , The power (1) to disallow colonial legislation ; (2) to 
 appoint the Governor-General ; (3) to appoint a Com- 
 mander over the military and naval forces of Canada ; (4) 
 to make international arrangements which will bind 
 Canada ; and (5) to hear appeals from Canadian courts in 
 her Privy Council (j); would seem to be about all the 
 common law prerogatives of the Crown in connection with 
 colonial affairs, over which colonial legislatures have no 
 legislative power. As a matter of fact, some of these \ 
 powers can hardly be designated prerogatives of the Crown, 
 as their exercise is entirely controlled by Imperial statutes. 
 As one example, we may note the power to disallow Do- 
 minion legislation, which under section 56 of the B. X. A. 
 Act, can only be exercised within two years from the 
 receipt of the Act by the secretary of state, and by order 
 in council. 
 
 10. The provisionsof this Act referring 
 to the Governor-General (i) extend and Governor- 
 apply to the Governor- General for the 
 time being of Canada, or other the chief 
 executive Officer or Administrator, for 
 the time being carrying on the govern- 
 
 (j) See notes to as. 10 and 62, post. 
 
 (j) Gushing v. Dupuy, 5, App. Gas. 409, and cases there cited ; and 
 see Theberge v. Landry, 2 App. Gas. 102 (as to appeals in election cases 
 under the Quebec Acts of 1872 and 1875), noted post, under s. 41.
 
 254 THE B. N. A. ACT SEC. 10. 
 
 ment (ii) of Canada on behalf and in the 
 name of the Queen (iii) by whatever title 
 he is designated. 
 
 (i) "The Governor-General." We have already de- 
 voted one chapter of this book to a consideration of the 
 position of the Governor-General, and need not therefore 
 make further reference to that office here. As was pointed 
 -out, the B. N. A. Act contains no express provision for his 
 appointment. By R. S. C. c. 3, he is a "corporation sole." 
 
 (ii) "Carrying on the government." Compare with 
 this section, the language of section 62 in reference to the 
 carrying on of the government of the respective provinces 
 by the Lieutenant-Govemors. The use of this phrase in 
 reference alike to the Dominion and the Provincial govern- 
 ments, has been much utilized in argument in support of 
 the contention that the Lieutenant-Governor is within his 
 sphere, an officer clothed with authority as complete as 
 that of the Governor-General; but as we shall have to deal 
 with this matter more at length when we come to deal 
 with the office of Lieutenant-Governor, we need not stay to 
 .consider it at length here. See notes to section 58, post. 
 
 (iii) "On behalf and in the name of the Queen." The 
 absence of this phrase from section 62, has been utilized in 
 the opposite direction in Regina v. Amer (k), and other sub- 
 sequent cases. It was laid down by Harrison, C.J., that 
 the Governor-General is the only executive officer provided 
 for by the B. N. A. Act, who answers the description of 
 "representative of the Queen," but it is submitted that the 
 difference in the wording of this section and of section 62, 
 does not warrant any such distinction. Any person carry- 
 ing on government within the British Empire must do so 
 on behalf of, and in the name of, the executive head of the 
 British Empire, as all other executive magistrates act 
 under commission from, and in due subordination to, that 
 executive head. If reliance is placed upon the fact that 
 
 (*) 42 U. C. Q. B. 391.
 
 THE B. N. A. ACT SEC. 11. 255 
 
 the Lieutenant-Governor is described as an " officer," it will 
 be seen that this section uses the very same word in de- 
 scribing the position of the Governor-General, and a refer- 
 ence to chapter VIII. and the cases there collected, will 
 show that the Governor-General occupies, in this respect, a 
 position in no way different from, or superior to, that of the 
 Lieutenant-Governor of a province. Very opportunely, there 
 comes to hand the report of the judgment of the Judicial 
 Committee of the Privy Council in Liquidators of the 
 Maritime Bank v. Receiver General of New Brunswick 
 (Times L. R., Vol. VIII. p. 677), which authoritatively 
 establishes the doctrine that the position of the Governor- 
 General and the various Lieutenant-Govemors is, in prin- 
 ciple, precisely analogous. " A Lieutenant-Governor when 
 appointed is as much the representative of her Majesty 
 J'or all purposes of provincial government as the Governor- 
 General himself is for all purposes of Dominion govern- 
 ment!' See further on this subject, section 58, et seq. and 
 notes. 
 
 11. There shall be a Council (i) to f Triv y ution 
 
 -i -i -i , i ^ e Council for 
 
 aid and advise in the Government of Canada. 
 Canada, to be styled the Queen's Privy 
 Council for Canada (ii) ; and the persons 
 who are to be members of that Council 
 shall be from time to time chosen and 
 summoned by the Governor- General and 
 sworn in as Privy Councillors, and mem- 
 bers thereof may be from time to time 
 removed by the Governor-General. 
 
 (i) " There shall be a council." Compare with this, 
 the language of section 63. This latter section seems to 
 " take it for granted " that an executive council would be 
 called into existence in Ontario and Quebec, while as to the 
 Dominion it was necessary to make express provision there- 
 for. See ante, p. 50-1.
 
 256 THE B. N. A. ACT SEC. 12. 
 
 (ii) " The Queens Privy Council for Canada." Fol- 
 lowing the English practice, members of the Canadian 
 Privy Council, are not removed from their position upon 
 the resignation of the "ministry" of which they may happen 
 to be members ; but, of course, those members only who are 
 of the cabinet are summoned to meetings of the Privy 
 Council. See Bourinot, "Parl. Proc. and Pract.," 2nd 
 ed. p. 54 and Todd, " Parl. Gov. Brit. Col.," p. 42. 
 
 undents to 12- (i) All powers, authorities, and 
 S Governor- functions (if) which under any Act (iii) of 
 
 General with . V ' . J . 
 
 advice or the Parliament 01 Great Britain, or of the 
 
 Privy Council 
 
 Parliament of the United Kingdom of 
 Great Britain and Ireland, or of the 
 Legislature of Upper Canada, Lower 
 Canada, Canada, Nova Scotia, or New 
 Brunswick, are at the Union vested in or 
 exerciseable by the respective Governors 
 or Lieutenant -Governors of those Pro- 
 vinces, with the advice, or with the advice 
 and consent, of the respective Executive 
 Councils thereof, or in conjunction with 
 those Councils, or with any number of 
 members thereof, or by those Governors, 
 or Lieutenant-Governors individually, 
 shall, as far as the same continue in exist- 
 ence and capable of being exercised after 
 the Union in relation to the Government 
 of Canada, be vested in and exerciseable 
 by the Governor-General, with the.advice 
 or with the advice and consent of or in 
 conjunction with the Queen's Privy Coun- 
 cil for Canada, or any members thereof, or 
 by the Governor-General individually, as 
 the case requires, subject nevertheless
 
 THE B. X. A. ACT SEC. 12. 257 
 
 (except with respect to such as exist 
 under Acts of the Parliament of Great 
 Britain or of the Parliament of the United 
 Kingdom of Great Britain and Ireland) 
 (iv) to be abolished or altered by the Par- 
 liament of Canada (v). 
 
 (i) We have already had occasion to treat with some 
 fullness of this section and its companion section (65) ; see 
 chapter III.., pp. 48, et seq. 
 
 (ii) " All powers, etc." Compare the language of sec- 
 tion 65, which vests these same " powers, etc.," so far as 
 they are capable of being exercised in relation to the gov- 
 ernment of Ontario and Quebec, in the Lieutenant-Gover- > 
 nors of those provinces respectively. The B. N. A. Act 
 affects no division of these powers, but of the field for their 
 exercise merely. 
 
 (iii) " Under any Act." This section 12, refers only to 
 statutory powers and does not touch the common law " pre- 
 rogatives of the crown." The vast majority of the powers 
 exerciseable by the Governor-General are statutory powers, 
 that is to say, are vested in him under Canadian legislation. 
 See chapter VIII. ante, p. 163, et seq., where this question is 
 fully discussed. 
 
 (iv) " Except with respect, etc" There are no Imperial 
 Acts conferring powers, authorities, and functions on 
 colonial governors generally : as to Canada, see the Consti- 
 tutional Act, 1791, and the Union Act, 1840. All the 
 powers, etc., conferred by those Acts and more are included 
 in the B. X. A. Act, which at the present time is the only 
 Imperial statute which in any way defines the duties of the 
 Governor-General or of the Lieutenaiit-Govemors of the 
 various provinces. 
 
 (v) " To be altul'iKlu'il or <ilt<'i'i></ hy the parliament of 
 ( '</ mid, i" This of course is limited to the abolition or alter- 
 ation of these powers, etc., so far as they are exerciseable in 
 CAN. CON. 17
 
 258 THE B. X. A. ACT SECS. 13. 14. 
 
 relation to the government of Canada. See section 65, which 
 confers like power on the provincial legislative assemblies, so 
 far as these powers are exerciseable in relation to the govern- 
 ment of the provinces of Ontario and Quebec. See also 
 notes to section 129, iwst, with particular reference to 
 Dobie v. Temporalities Board, L. R. 7 App. Cas. 136. 
 
 13. The provisions of this Act refer- 
 ring to the Governor-General in Council 
 
 ral in Council. ' 
 
 shall be construed as referring to the 
 Governor-General acting by and with the 
 advice of the Queen's Privy Council for 
 Canada (i). 
 
 (i) Compare section 66, and see chapter VIII. ante, 
 p. 167, et seq., for a reference to those matters in respect of 
 which the Governor-General, in contemplation of law, acts 
 alone. 
 
 MaTes r tJt?a e u- 14. It shall be lawful for the Queen, 
 emor-Generai if Her Majesty thinks fit, to authorize the 
 
 to appoint 
 
 Deputies. Governor-General from time to time to 
 appoint any person or any persons jointly 
 or severally to be his Deputy or Deputies 
 within any part or parts of Canada, and 
 in that capacity to exercise during the 
 pleasure of the Governor-General such 
 of the powers authorities, and functions 
 of the Governor-General, as the Governor- 
 General deems it necessary or expedient 
 to assign to him or them, subject to any 
 limitations or directions expressed or 
 given by the Queen ; but the appoint- 
 ment of such a Deputy or Deputies shall 
 not affect the exercise by the Governor- 
 General himself of any power, authority 
 or function (i).
 
 THE B. X. A. ACT SEC. 15. 259 
 
 (i) The commission to Lord Monck (clause 8), and the 
 Letters Patent of 1878 (clause 6), expressly authorize the 
 appointment, by the Governor-General, of a deputy. See 
 chapter VIII. (rate, p. 168. In the case of Regina v. 
 Amer (I), which came before the court upon a case stated, 
 -a commission to hold an assize, attested in the name of 
 
 "' , Deputy of the Governor-General of Canada," was 
 
 referred to in the " case," and Harrison, C.J., assumed : 
 
 " That the Queen authorized the appointment of a Deputy 
 Governor, and that the prerogative power in question was con- 
 ferred by the Governor- General upon the Deputy Governor, 
 without any limitation or direction on the part of the Queen, 
 and so that it has been exercised by the proper authority," 
 
 there being no statement to the contrary in the case. In 
 that case, commissions had been issued both by the Gover- 
 nor-General, and by the Lientenant-Governor, and the 
 judgment of the Court affirmed the authority of the 
 Governor-General to issue such commission ; but it is sub- 
 mitted that the power to exercise this prerogative is 
 properly with the Lieutenant-Govemor, and not with the 
 the Governor-General so far at least as provincial courts 
 are concerned as it is a prerogative directly connected 
 with "the administration of justice in the province," 
 and therefore falls within the class of matters over which 
 a provincial legislature is exclusively entitled to exercise 
 legislative authority See B. N. A. Act, s. 92, s-s. 14. 
 
 As to the appointment of a Deputy Lieutenant-Gover- 
 nor, see notes to section 67, post. 
 
 15. The Command-in-Chief of the 
 
 to continue to 
 
 Land and Xaval Militia, and of all Xaval be vested in 
 
 tbe Queen. 
 
 and Military Forces, of and in Canada, is 
 hereby declared to continue and be vested 
 in the Queen (i). 
 
 (i) This is one of those matters in respect of which 
 colonial legislative power is subject to many restrictions 
 
 (0 42 U. C. Q. B. 391.
 
 260 THE 15. X. A. ACT SECS. 16, 17. 
 
 arising from the existence of Imperial legislation of express 
 colonial application. See chapter IX. ante. So far as such 
 legislation does not extend, the subject is, as between the 
 Dominion and the provinces, exclusively with the for- 
 mer: see B. N. A. Act, section 91, sub-section 7, and notes 
 thereto. Our legislation upon the subject is contained in 
 R, S. C. c. 41, to which the reader is referred, as the subject 
 is beyond the scope of this work political rather than 
 leal. 
 
 16. Until the Queen otherwise di- 
 rects, the seat of Government (i) of Can- 
 ada shall be Ottawa (ii). 
 
 (i) " The seat of yovenrment" Compare section 68, 
 where the same form of expression is used in reference to 
 the provincial capitals. This fact, too, strongly supports 
 the view that the position of the provinces is the same, in 
 principle, as that of the Dominion. 
 
 (ii) " Ottawa*," This city is wholly within the boun- 
 daries of the province of Ontario. See the powerful 
 speech of Mr. C. Dunkin, in favor of placing the Federal 
 capital entirely under the jurisdiction of the Federal gov- 
 ernment, just as the District of Columbia (within which is 
 situated the city of Washington) is under the control of 
 the Federal government of the United States. Con fed. 
 Deb. p. 507. 
 
 IV. LEGISLATIVE POWER, (i). 
 
 SpSuXt 17. There shall be one Parliament (ii) 
 
 for Canada, consisting of the Queen (in), 
 
 an Upper House, styled the Senate (iv), 
 
 and the House of Commons (v). 
 
 (i) " Leylfldti'-r power." See chapter IX., <iute, for a 
 
 full discussion of the extent of the legislative power of a 
 
 British colony.
 
 THE 1-5. X. A. ACT - SEC. 18. 261 
 
 (ii) " Piii'lin',,;, -lit." The use of this term, in reference 
 to the legislative body of the Dominion only, has been 
 much utilized in argument to belittle the' position of the 
 provincial legislative assemblies ; but their co-ordinate rank 
 with the Dominion parliament (each supreme within its 
 sphere of legislative authority) is now finally established : 
 Hodge v. Reg. 9 App. Cas. 117 ; Bank of Toronto v. Lambe, 
 12 App. Cas. 575 : Liquidators of the Maritime Bank v. 
 Receiver-General of New Brunswick, Times L. R. Vol. 
 VIII. p. 677. The appellation bestowed upon any of these 
 bodies is immaterial. The question is, have they legislative 
 powers in the proper sense of that term ? 
 
 (iii) "The Queen." The position of the Queen as a 
 constituent branch of parliament will be found discussed 
 in chapter VI. ante, p. 132, et seq., where we have also 
 pointed out that the Crown is also a constituent branch of 
 very colonial legislature. As to the position, in this regard, 
 of the legislative assemblies of the province, see notes to 
 section 69, po*t. 
 
 (iv) " The Senate." See section 21, et seq. 
 
 (v) " The House of Commons." See section 37, et seq. 
 
 18. The privileges, (ii), immunities, 
 and powers (iii), to be held, enjoyed and 
 exercised by the Senate and by the House 
 of Commons and by the members thereof 
 respectively shall be such as are from time 
 to time defined by Act of the Parliament 
 of Canada (iv), but so that any Act of the 
 Parliament of Canada denning such privi- 
 leges, immunities and powers shall not 
 confer any privileges, immunities or 
 powers exceeding those at the passing of 
 such Act held, enjoyed, and exercised by 
 the Commons House (v) of Parliament of
 
 262 THE B. X. A. ACT SEC. 18. 
 
 the United Kingdom of Great Britain and? 
 Ireland and by the members thereof. 
 
 (i) The section, as it originally stood, limited the power 
 of the Parliament of Canada to defining its privileges, etc.,, 
 by its own enactment, " but so that the same shall never 
 exceed those at the passing of this Act, held, enjoyed, etc/' 
 
 In 1873, the parliament of Canada passed an Act, 36 Vic. 
 c. 1, " To provide for the examination of witnesses on oath 
 by committees of the Senate and House of Commons; 
 in certain cases." At the date of the passage of the B. X. A. 
 Act, the committees of the Imperial " Commons House " 
 had no power to examine witnesses upon oath (although 
 they had been given (in) that power prior to 1873), and for 
 this reason the Dominion statute was disallowed by the 
 Imperial Privy Council. The Act had been passed in order 
 to facilitate enqiries into what is popularly known as the 
 " Pacific Scandal," and its disallowance created some excite- 
 ment. The result of negotiations with the Imperial author- 
 ities (n) was the passage of " The Parliament of Canada 
 Act, 1875," 38 & 39 Vic. c. 38 (Imp.), which substituted tin- 
 section, as above printed, for the original section 18 of the 
 B. N. A. Act, 1867. It also expressly validated 31 ,v: 32 
 Vic. c. 24 (Dom.), "An Act to provide for oaths to witn 
 being administered in certain cases for the purpose of either 
 House of parliament," as to the validity of which doubts 
 had been expressed. "The Parliament of Canada Act, 
 1875," contains no further legislation than as alxive noted, 
 and it is therefore not thought necessary to reprint it in 
 full. 
 
 (ii.) "7V/o7/-'/r.v, etc." The law which defines the 
 "privileges, immunities, and powers" of the British parlia- 
 ment, and of the members thereof, is almost altogether part 
 of the ancient law of England. The branch of English 
 
 (m) See 34 & 35 Vic. c. 83 (Imp.). 
 
 (n) See Can. Comm. Jour., 1873 (Oct. Sess.), p. 5; Ssss. Pap. (1877)% 
 No. 89.
 
 THE B. X. A. ACT SEC. 18- 263 
 
 common law which deals with this subject is known as the 
 lex et (xmsuetudo partianienti, and the Judicial Committee 
 of the Privy Council, on appeals from the colonies, have 
 uniformly held that this branch of English common law 
 was strictly local in its application, and referred, not to a 
 supreme legislature in the abstract, but to the Parliament 
 of Great Britain in the concrete, and that therefore it was 
 a branch of the common law which emigrating colonists 
 would not carry with them. The grant, therefore, *of a 
 legislature to a colony did not, without more, invest such 
 body and its members with those privileges, immunities, 
 and powers which were by the lex et consuetudo parlia- 
 iii'- nt i annexed to the British parliament and its members. 
 The powers, other than legislative, of a colonial legislature 
 (unless expressly extended by the terms of the charter, 
 commission, or Imperial Act constituting such legislature), 
 are such only as are incident to or inherent in such an 
 assembly, viz., " such as are necessary to the existence of 
 such a body, and the proper exercise of the functions which 
 it is intended to execute." Kielley v. Carson, 4 Moo. 
 P. C. 88. 
 
 " Whatever, in a reasonable sense, is necessary for these pur- 
 poses, is impliedly granted whenever any such legislative body 
 is established by competent authority. For this purpose, pro- 
 tective and self-defensive powers only are necessary, and not 
 punitive. If the question is to be elucidated by analogy, that 
 analogy is rather to be derived from other assemblies not legis- 
 lative, whose incidental powers of self-protection are implied by 
 the common law (although of inferior importance and dignity to 
 bodies constituted for purposes of public legislation), than from 
 the British parliament, which has its own peculiar law and 
 custom, or from courts of record, which have also their special 
 authorities and privileges recognized by law." Barton v. Taylor, 
 11 App. Cas. at p. 203. 
 
 The existence of these limitations upon the powers, 
 privileges, and immunities of a colonial legislature was the 
 reason, presumably, for the enactment of the above section
 
 2(i4 THE B. X. A. ACT SEC. 18. 
 
 of the B. N. A. Act: and that enactment, and the subse- 
 quent enactments of the Dominion parliament, have had 
 the effect so far as the Dominion parliament is concerned 
 of releo-atino- the numerous authorities which deal with the 
 
 O O 
 
 position, in this regard, of colonial legislatures to the realm 
 of the constitutional historian. But because of the conten- 
 tion advanced in certain quarters that the provincial legis- 
 latures are subject to the law as laid down in those author- 
 ities* we may say that in Barton v. Taylor, 11 App. Cas. 
 197, the result of the authorities is clearly stated, and in 
 Wood worth v. Landers, 2 S. C. R. 158 (o), will be found a 
 compendium of the law on this subject (j>). 
 
 This clause of the B. N. A. Act has, on the other hand, 
 had the effect of limiting the wide power of the Dominion 
 parliament to define by its own legislation the privileges; 
 etc., of itself and its members, conferred by section 5 of the 
 Colonial Laws Validity Act, 1865, as to which see note (i) 
 to section 35, and note (iii) to section 69,j>o*t. It can never 
 go further than the Imperial parliament in this direction. 
 See further, on this aspect of the case, the notes to section 
 
 As to the nature and extent of these privileges, etc.. 
 reference ma}- be made to May, Hatsell, and Bourinot. 
 I (iii) ' Powers." The reference is, of course, to powers 
 I other than legislative, as for example, the power to commit 
 for contempt, to jcompel the attendance of witnesses, and 
 ; to compel the production of papers, etc., etc., which may b t - 
 described as inquisitorial and punitive powers, in aid of 
 nntelligeiit legislation. As to the trial of election petitions, 
 ee notes to section 41, p<i*t. 
 
 (iv) "Dcfini'<l hi/ AH of tic liar/ HI meat of Canada"- 
 Dominion legislation upon this subject is contained in 
 R. S. C. (1886), c. 11, ss. 3-S, 20-2:J : 
 
 (o) The " apology " branch of this case is, in view of Barton v. Taylor, 
 of doubtful authority. 
 
 (p) See Anderson v. Dunn, <> Wheat. '104, an.l Kilbourn v. Thompson, 
 103 U.S. ins, as to the position of Congress.
 
 THE B. X. A. ACT SEC. 18. 265 
 
 "PRIVILEGES AND IMMUNITIES OF MEMBERS AND 
 OFFICERS. 
 
 3. The Senate and the House of Commons respectively, and 
 the members thereof respectively, shall hold, enjoy and exercise 
 such and the like privileges, immunities and powers as, at the 
 time of the passing of " The British Xorth America Act, 1867," 
 were held, enjoyed and exercised by the Commons House of 
 Parliament of the United Kingdom, and by the members thereof, 
 so far as the same are consistent with and not repugnant to the 
 said Act, and also such privileges, immunities and powers as are 
 from time to time defined by Act of the Parliament of Canada, 
 not exceeding those at the time of the passing of such Act held, 
 enjoyed and exercised by the Commons House of Parliament of 
 the United Kingdom and by the members thereof respectively. 
 
 4. Such privileges, immunities and powers shall be part of 
 the general and public law of Canada, and it shall not be 
 necessary to plead the same, but the same shall, in all courts 
 in Canada and by and before all judges, be taken notice of 
 judicially. 
 
 5. Upon any inquiry touching the privileges, immunities 
 and powers of the Senate and of the House of Commons or of 
 any member thereof respectively, any copy of the journals of the 
 Senate or House of Commons, printed or purporting to be 
 printed by the order of the Senate or House of Commons, shall 
 be admitted as evidence of such journals by all courts, justices 
 and others, without any proof being given that such copies were 
 so printed. 
 
 tt. Any person who is a defendant in any civil or criminal 
 proceedings commenced or prosecuted in any manner for or on 
 account of or in respect of the publication of any report, paper, 
 votes or proceedings, by such person or by his servant, by or 
 under the authority of the Senate or House of Commons, may 
 bring before the court in which such proceedings are so com- 
 menced or prosecuted or before any judge of the same, first 
 giving twenty-four hours' notice of his intention so to do to the 
 prosecutor or plaintiff in such proceedings or to his attorney or 
 solicitor, a certificate under the hand of the Speaker or Clerk of 
 the Senate or House of Commons, as the case may be, stating
 
 266 THE B. N. A. ACT SEC. 18. 
 
 that the report, paper, votes or proceedings, as the case may be r 
 in respect whereof such civil or criminal proceedings have been 
 commenced or prosecuted, was or were published by such person 
 or by his servant, by order or under the authority of the Senate 
 or House of Commons, as the case may be, together with an 
 affidavit verifying such certificate ; and such court or judge shall 
 thereupon immediately stay such civil or criminal proceedings, 
 and the same and every writ or process issued therein shall be 
 and shall be deemed and taken to be finally put an end to, 
 determined and superseded by virtue of this Act. 
 
 7. If any civil or criminal proceedings are commenced or 
 prosecuted for or on account or in respect of the publication of 
 any copy of such report, paper, votes or proceedings, the defen- 
 dant at any stage of the proceedings may lay before the court or 
 judge, such report, paper, votes or proceedings, and such copy 
 with an affidavit verifying such report, paper, votes or proceed- 
 ings, and the correctness of such copy; and the court or judge 
 shall immediately stay such civil or criminal proceedings, and 
 the same and every writ and process issued therein, shall be and 
 shall be deemed to be finally put an end to, determined and 
 superseded by virtue of this Act. 
 
 8. In any civil or criminal proceeding commenced or prose- 
 cuted for printing any extract from or abstract of any such 
 report, paper, votes or proceedings, such report, paper, votes or 
 proceedings, may be given in evidence, and it may be shown 
 that such extract or abstract was published lona fl<le and with- 
 out malice, and if such is the opinion of the jury, a verdict of 
 not guilty shall be entered for the defendant. 
 
 ****# 
 
 EXAMINATION OF WITNESSES. 
 
 !2O. Witnesses may be examined upon oath or upon affir- 
 mation, if affirmation is allowed by law, at the bar of the Senate, 
 and for that purpose the Clerk of the Senate may administer 
 such oath or affirmation to any such witness. 
 
 21. Any select committee of the Senate or House of Com- 
 mons to which any private Bill has been referred, by either 
 House, respectively, may examine witnesses upon oath or affir- 
 mation, if affirmation is allowed by law, upon matters relating
 
 THE B. X. A. ACT SECS. 19, 20. 267 
 
 to such Bill, and for that purpose the chairman or any member 
 of such committee may administer such oath or affirmation, ta 
 any such witness. 
 
 22. Whenever any wifcuess or witnesses is or are to be 
 examined by any other committee of the Senate or House of 
 Commons, and the Senate or House of Commons has resolved 
 that it is desirable that such witness or witnesses shall be 
 examined upon oath, such witness or witnesses shall be exam- 
 ined upon oath or affirmation, if affirmation is allowed by law - T 
 and such oath or affirmation shall be administered by the chair- 
 man or any member of any such committee as aforesaid. 
 
 23. Every such oath or affirmation shall be in the forms A 
 and B respectively, in the schedule to this Act. 
 
 (v) "Commons House." The House of Lords in Eng- 
 land has certain judicial and other functions which our 
 Senate does not possess. See notes to section 21, jiost. 
 
 19. The Parliament of Canada shall 
 be called together not later than six u 
 
 uient of Ca- 
 
 iaier man six 
 months after the Union. 
 
 20. There shall be a Session of the e ^|f r ! iou 
 Parliament of Canada once at least inca^a e d n a. 
 every year, so that twelve months shall 
 not intervene between the last sitting of 
 the Parliament in one Session and its 
 first sitting in the next Session (i). 
 
 (i) See chapter VIII. ante, p. 168, for some observa- 
 tions as to the duty of a governor to insist upon the 
 < >1 iservaiice of this section. In the case of the Dominion 
 government no question has ever arisen, the provisions of 
 the section having- been uniformly observed. The object- of 
 the section, it is almost unnecessary to observe, is to pre- 
 serve the English rule of annual grants for the public 
 service. In England, the rule is guarded by the passing of 
 the Mutiny Act for one year only.
 
 268 THE B. X. A. ACT SEC. 21. 
 
 THE SENATE (i). 
 
 Sufrs of 2L The Senate shall, subject to the 
 provisions of this Act (ii), consist of 
 seventy-two members, who shall he styled 
 Senators. 
 
 (i) " Tin N- inife." Strange as it may appear, a perusal 
 of the debates on the Confederation Resolutions discloses 
 that 110 question was raised as to the usefulness or use 
 ness of an Upper House. The bi-cameral system would 
 seem to have been at that time universally favored, so far 
 at least as the constitution of the Dominion government 
 was concerned. To the delegates to the Quebec Conference 
 of 1864, two examples of an Upper House presented them- 
 selves the English House of Lords, and the United States 
 Senate. The position of the former in the English consti- 
 tutional system is very clearly defined by Bagehot : 
 
 " Since the Reform Act, the House of Lords has become a 
 
 revising and suspending House Their veto is a 
 
 sort of hypothetical veto. They say, we reject your bill this 
 once, or these twice, or even these thrice, but if you keep on 
 sending it up, at last we won't reject it." 
 
 The House of Lords, too, is pi .-.- -. -d of judicial functions 
 of a certain sort, but it is manifest that, both historically 
 and in actual practice, the House of Lords is in no sense a 
 federal element in the Imperial scheme of government, that 
 in no way does it stand out as the guardian of colonial 
 rights. The T. S. Senate on the other hand was instituted 
 as a part of the federal scheme, for the very purpose of 
 protecting " state rights.' 7 and to that end, each state, lai'-v 
 or small, is entitled to two senators and no more. By tlie 
 Fathers of our Confederation, the Senate of Canada was 
 announced as answering both purposes :' as atibrdii 
 check on hastv or ill-digested legislation, and also as pro- 
 tecting local interests and the autonomy of the provinces. 
 The attainment of the former purpose was supposed to be
 
 THE B. N. A. ACT SEC. 21. :>()!) 
 
 made secure by the mode of appointment, the life tenure of 
 the senators being held out as a guarantee for independence / 
 in the exercise of their legislative duties; while the eqtu.tl I 
 representation, in the Senate, of each of the distinctly I 
 differentiated portions of the Dominion would make that I 
 body the guardian of " provincial rights," or at least of local, 
 as distinct from general, interests. 
 
 " In order to protect local interests, and to prevent sectional 
 jealousies, it was found requisite that the three great divisions 
 into which British North America is separated, should be repre- 
 sented in the Upper House on the principle of equality. There 
 are three great sections, having different interests, in this pro- 
 posed Confederation. We have Western Canada, an agricultural 
 country far away from the sea, and having the largest population 
 who have agricultural interests principally to guard. We have 
 Lower Canada with other and separate interests, and especially 
 with institutions and laws which she jealously guards against 
 absorption by any larger, more numerous, or stronger power. 
 And we have the Maritime Provinces, having also different sec- 
 tional interests of their own ; having, from their position, 
 classes and interests which we do not know in Western Canada. 
 Accordingly in the Upper House the controlling and regulating, 
 but not the initiating branch (for we know that here, as in Eng- 
 land, to the Lower House will practically belong the initiation 
 of matters of great public interest) in the House which has the 
 sober second- thought in legislation it is provided that each of 
 those great sections shall be represented equally by twenty-four 
 members. . . . The provision that each of the great sections 
 shall appoint twenty-four members and no more, will prevent 
 the Upper House from being swamped from time to time by the 
 ministry of the day, for the purpose of carrying out their own 
 schemes or pleasing their partizans. The fact of the govern- 
 ment being prevented from exceeding a limited number, will 
 preserve the independence of the Upper House, and make it, in 
 reality, a separate and distinct chamber, having a legitimate and 
 
 controlling interest in the legislation of the country 
 
 There is this additional advantage to be expected from the limi- 
 tation. To the Upper House is to be confided the protection of 
 sectional interests ; therefore it is that the three great divisions
 
 270 THE B. N. A. ACT SEC. 21. 
 
 are there equally represented for the purpose of defending such 
 interests against the combination of majorities in the Assembly. 
 It will, therefore, become the interest of each section to be 
 represented by its very best men, and the members of the 
 administration who belong to each section will see that such men 
 are chosen, in case of a vacancy in their section. For the same 
 reason, each State of the American Union sends its two best 
 men to represent its interests in the Senate." Per Sir John A. 
 Macdonald, in Confed. Deb. p. 35, et seq. 
 
 The Senate of Canada exercises no judicial functions 
 akin to those exercised by the House of Lords and, to a 
 smaller extent, by the U. S. Senate ; nor has it any execu- 
 tive functions like those exercised by the U. S. Senate in 
 "" executive session," in relation to treaties and appointments 
 to office. Its functions are purely legislative. 
 
 In the light of subsequent developments, the criticism of 
 Mr. Dunkin, upon this part of the scheme of Confederation, 
 reads like a prophecy. Wanting in the characteristics 
 which, to some extent, uphold the exercise of authority by 
 the House of Lords as a " dignified " part of the constitu- 
 tion (g), the revising and suspending functions of our Senate 
 are a myth and, in practice, are limited to rejecting bills 
 Which the government desire to see defeated but do not like 
 to oppose in the popular chamber; and, wanting as its 
 members are in any distinctly different character, aims, and 
 interests from those of the members of the popular chamber, 
 and appointed, too, as they are, not by the provincial legis- 
 latures, but by the Dominion government, they are as 
 strongly and continuously party men as are the members 
 of the House of Commons, and they divide on party, not on 
 provincial or sectional, lines. Such federal element as ex- 
 ists at all in the constitution of the Dominion government, 
 is in the distribution of portfolios in the cabinet, as Mr. 
 Dunkin predicted it would be. With the entry of Mani- 
 toba, British Columbia and the North West Territories into 
 
 (q) See Bagehot, p. 89, et seq.
 
 THE B. N. A. ACT SEC. 21. 271 
 
 the Dominion, all attempt to continue the principle of equal 
 representation was abandoned in favor, practically, of re- 
 presentation by population, so far at all events as the new 
 territories were concerned. Upon the passage of an Act 
 forming a new province, such Act at once passes beyond the 
 competence of the Dominion parliament, and the representa- 
 tion allowed such new province in the JSenafcTis thereafter 
 incapable of increase ^oT^ecreaae except byTmpeiial leaggP' 
 lationi (r). The representation of the province of Manitoba 
 in the Senate is now three, with a maximum limit of four. 
 Upon the admission of Prince Edward Island, the pro- 
 visions .of section 147, post, took effect; and that province 
 is now represented by four Senators. Upon the admission 
 of British Columbia, the representation of that province in 
 the Senate was fixed at three. By the B. N. A. Act, 1886, 
 the Dominion parliament is empowered to make provision 
 for the representation, in the Senate, of any territories which 
 for the time being form part of the Dominion and are not 
 included in any province thereof ; and, pursuant to the 
 power granted by that statute, the North West Territories 
 have been given two Senators. There is this peculiarity 
 about the position of the North West Territories that the 
 number of Senators, who may be appointed to represent 
 that district, is a matter entirely for the Dominion parlia- 
 ment, so that it is in the power of the Dominion govern- 
 ment to swamp the Senate, so long as the additional 
 members are appointed to represent the North West Terri- 
 tories. The original design has, however, left this mark 
 upon our system, namely, that Ontario, Quebec, and the 
 Maritime Provinces are still tied down to equality of repre- 
 sentation in the Senate, irrespective of differences in popu- 
 lation, and any alteration of our constitution in this 
 particular must be by Imperial Act. But it only requires 
 an enumeration of the number of Senators to which each 
 province is entitled, to show that the position of the Senate 
 as a guardian of local interests has entirely vanished. 
 (r) B. N. A. Act, 187J, sec. f>; see post, Part IV.
 
 272 THE B. X. A. ACT SEC. 21 
 
 (ii) " Subject to thej_n't-'i*',,nix of t/< t* Act." See sections 
 26 and 27, post, and notes thereto. This Act must in tu- 
 be construed as one with the B. N. A. Acts, 1871 and 1886. 
 See section 3 of the latter statute. We have referred in 
 the last note to the provisions of these statutes, both of 
 which will be found printed in full and further discussed in 
 Part IV. of this work. 
 
 tiou r of s p n ro ft " 22- In relation to the constitution of 
 seu c a e te m the Senate, Canada shall be deemed to 
 consist of three divisions (i) 
 1. Ontario ; 
 '2. Quebec ; 
 
 3. The Maritime Provinces, Nova 
 Scotia and New Brunswick ; which three 
 divisions shall (subject to the provisions 
 of this Act) be equally represented in the 
 Senate as follows : Ontario by twenty- 
 four Senators ; Quebec by twenty-four 
 Senators ; and the Maritime Provinces by 
 twenty-four Senators, twelve thereof rep- 
 resenting Nova Scotia, and twelve thereof 
 representing New Brunswick. 
 
 In the case of Quebec (ii) each of the 
 twenty-four Senators representating that 
 Province shall be appointed for one of the 
 twenty-four Electoral Divisions of Lower 
 Canada specified in Schedule A. to chap- 
 ter one of the Consolidated Statutes of 
 Canada. 
 
 (i) " Tltrci' (I i !;*;<, a*." See note (i) to section 21 
 a ute, p. 269 et seq. 
 
 (ii) " I a tltf c<ix<> of Quebec." This sub-section reveals 
 a federal scheme within a federal sdu'iiK'. See also section
 
 THE B. N. A. ACT SEC. 23. 273 
 
 23 sub-section 6. The reason for these provisions is dis- 
 closed in the Confederation Debates : 
 
 " It has been so arranged to suit'the peculiar position 
 of this section of the province (s). Our Lower Canada 
 friends felt that they had French Canadian interests and 
 British interests to be protected and they conceived that 
 the existing system of electoral divisions would give 
 protection to these separate interests. We in Upper 
 Canada, on the other hand, were quite content that they 
 should settle that among themselves, and maintain their 
 existing divisions if they chose." per Hon. George Brown, 
 Confed. Deb. 90. 
 
 " Lower Canada is in a different position from Upper 
 
 Canada and there are two nationalities 
 
 in it, occupying certain portions of the country. Well, 
 these divisions have been made so as to secure to both 
 nationalities their respective rights, and these, in our 
 opinion, are good reasons for the provision that has been 
 made." ^r Sir E. P. Tache, ib. 210. 
 
 23- The qualification of a Senator ? f ua sena?ol ons 
 shall be as follows : 
 
 (1) He shall he of the full age of 
 thirty years : 
 
 (2) He shall be either a natural-born 
 subject of the Queen, or a subject 
 of the Queen naturalized by an 
 Act of the Parliament of Great 
 Britain, or of the Parliament of the 
 United Kingdom of Great Britain 
 and Ireland, or of the Legislature 
 of one of the Provinces of Upper 
 Canada, Lower Canada, Canada, 
 Nova Scotia, or New Brunswick, 
 
 <) i.e., of (old) Canada. 
 CAN. CON. 18
 
 274 THE B. N. A. ACT SEC. 24. 
 
 before the Union, or of the Parlia- 
 ment of Canada after the Union. 
 
 (3) He shall be legally or equitably 
 seised as of freehold for his own 
 use and benefit of lands or tene- 
 ments held in free and common 
 socage, or seised or possessed for 
 his own use and benefit of lands or 
 tenements held in franc-aleu or in 
 roture, within the Province for 
 which he is appointed, of the value 
 of four thousand dollars, over and 
 above all rents, dues, debts, charges, 
 mortgages, and incumbrances due 
 or payable out of or charged on or 
 affecting the same : 
 
 (4) His real and personal property 
 shall be together worth four thou- 
 sand dollars over and above his 
 debts and liabilities : 
 
 (5) He shall be resident in the Pro- 
 vince for which he is appointed : 
 
 (6) In the case of Quebec he shall 
 have his real property qualification 
 in the Electoral Division for which 
 he is appointed, or shall be resident 
 in that Division. 
 
 24- The Governor-General (i) shall 
 from time to time, in the Queen's name, by 
 instrument under the Great Seal of Can- 
 ada, summon qualified persons to the 
 Senate ; and, subject to the provisions of
 
 THE B. X. A. ACT SECS. 25, 26. 275 
 
 this Act, every person so surnnioned shall 
 become and be a member of the Senate 
 and a Senator. 
 
 (i) " The Governor-General." The duties of the Gover- 
 nor-General under this section have been already discussed. 
 See chapter VIII. ante, p. 169, where will also be found 
 noted, the different meaning given to the word " summon " 
 in this section, and in section 38. 
 
 25- Such persons shall be first smn- 
 moned (i) to the Senate as the Queen by 
 warrant under Her Majesty's Koyal Sign 
 Manual thinks fit to approve, and their 
 names shall be inserted in the Queen's 
 Proclamation of Union. 
 
 (i) " Such persons shall be first summoned." See the 
 Queen's Proclamation of Union in the Canada Gazette. 
 
 26- If at any time on the recommen- 
 dation of the Governor-General the Queen clses! D (i) 
 thinks fit to direct that three or six mem- 
 bers be added to the Senate, the Gover- 
 nor-General may by summons to three or 
 six qualified persons (as the case may be), 
 representing equally the three divisions 
 of Canada, add to the Senate accordingly. 
 
 (i) " Addition of Senators." The Quebec Resolutions 
 made no provisions for any alteration in the number of 
 Senators, and the absence of such provision was commented 
 on in a despatch of the then Secretary of State for the 
 Colonies in these terms : 
 
 . " The second point which Her Majesty's government desire 
 should be reconsidered, is the constitution of the Legislative 
 Council. They appreciate the considerations which Lave 
 influenced the Conference in determining the mode in which
 
 276 THE B. X. A. ACT SECS. 27, 23. 
 
 this body, so important to the constitution of the legislature, 
 should be composed. But it appears to them to require further 
 consideration, whether, if the members be appointed for life, 
 und their number be /?.m/, there will be any sufficent means of 
 restoring harmony between the Legislative Council and the 
 popular assembly, if it shall ever unfortunately happen that a 
 decided difference of opinion shall arise between them." 
 
 The above section was inserted in the Act to meet the 
 views of the Imperial authorities' as expressed in the above 
 despatch, but it has never been acted upon. In the only 
 case in which an addition to the membership of the 
 Senate was sought under this section, it was refused by the 
 Imperial authorities (). In view of the position to which 
 we have before adverted, namely, the power of the 
 Dominion parliament to regulate the number of Senators 
 from those parts of Canada not erected into provinces. 
 this and the next section may be said to be practically 
 effete. It is certainly somewhat anomalous to place in the 
 hands of the Imperial Cabinet the power to grant or refuse 
 the request of the Dominion government, in a matter so 
 entirely one for local consideration. 
 
 I?n d ate!S nof 27 In case of such addition being at 
 any time made the Governor-General 
 shall not summon any person to the 
 Senate, except on a further like direction 
 by the Queen on the like recommendation, 
 until each of the three divisions of Canada 
 is represented by twenty-four Senators 
 and no more. 
 
 mfmb^roi 28. The number of Senators shall 
 
 not at any time exceed seventy-eight (i). 
 
 (i) "Seventy-eight." This is the legal limit at present, 
 so far as regards Ontario,Quebec and the Maritime Provinces ; 
 
 (f) See Todd, " Parl. Govt. in Brit. Col.," p. 164
 
 THE B. X. A. ACT SECS. 29-31. 277 
 
 namely, seventy-two under section 21, with a possible addi- 
 tion of six under section 26. In note (i) to section 21, we 
 have referred to the additions which have been made to the 
 membership of the Senate on the admission of the different 
 provinces and territories which, since Confederation, have 
 become part of the Dominion. See also Part IV. There is 
 now no " maximum number " as indicated in the side-note. 
 
 29. A Senator shall, subject to the ^f u of 
 provisions of this Act (i), hold his place 
 
 in the Senate for life (ii). 
 
 (i) " Subject to the provisions of this Act." See the two 
 following sections, 30 and 31. 
 
 (ii) " For life." See note (i) to section 21, ante, p. 268. 
 
 30. A Senator may by writing under ^S 11 
 Iris hand addressed to the Governor-Gene- 
 
 ral resign his place in the Senate, and 
 thereupon the same shall be vacant. 
 
 31. The place of a Senator shall be- gj^of flca ' 
 
 p 1 1 f 1 1 Senators. 
 
 come vacant in any oi the following 
 
 cases : 
 
 (1) If for two consecutive Sessions 
 of the Parliament he fails to give 
 his attendance in the Senate : 
 
 (2) If he takes an oath or makes a 
 declaration or acknowledgment of 
 allegiance, obedience or adherence 
 to a foreign power, or does an act 
 whereby he becomes a subject or 
 citizen, or entitled to the rights or 
 privileges of a subject or citizen of 
 a foreign power :
 
 278 THE B. N. A. ACT SECS. 32, 33. 
 
 (3) If he is adjudged bankrupt or in- 
 solvent, or applies for the benefit 
 of any law relating to insolvent 
 debtors, or becomes a public de- 
 faulter : 
 
 (4) If he is attainted of treason or con- 
 victed of felony or of any infamous 
 crime : 
 
 (5) If he ceases to be qualified in re- 
 spect of property or of residence; 
 provided, that a Senator shall not 
 be deemed to have ceased to be 
 qualified in respect of residence by 
 reason only of his residing at the 
 seat of the Government of Canada 
 while holding an office under that 
 Government requiring his presence 
 there. 
 
 fac^cy^n 011 32. When a vacancy happens in the 
 Senate by resignation, death, or other- 
 wise, the Governor-General shall, by 
 summons (i) to a fit and qualified person 
 fill the vacancy. 
 
 (i) "By summons" See note (i) to section 24, and 
 also chapter VIII. ante, p. 170. 
 
 ?o u quauflca- s 33- If any question arises respecting 
 vaeanaittin the qualification of a Senator or a vacancy 
 
 Senate 
 
 in the Senate the same shall be heard and 
 determined by the Senate (i). 
 
 (i) " Determined by tie ftcv<itc" Up to the date of Con- 
 federation, the legislatures of the various provinces had
 
 THE B. X. A. ACT SECS. 34, 35. 279 
 
 retained in their own hands the jurisdiction to determine all 
 questions relating to the stoti's of their members, and for 
 some years after Confederation, the parliament of the Do- 
 minion exercised like jurisdiction. Section 41, however, of 
 the E.X. A. Act (see post] impliedly empowers the Dominion 
 parliament to provide otherwise as to the House of Com- 
 mons, and as the notes to that section will show, this 
 power has been acted upon. No similar power is given by 
 the B. X. A. Act to alter the provisions of this section 33, as 
 to determining the status of members of the Senate. As 
 they are not elected by popular vote, question can hardly 
 ;arise as to the mode of appointment, unless indeed appoint- 
 ments were made in excess of those allowed by the Act. As 
 the various matters which work disqualification, are, with 
 the exception of the failure to give attendance in the 
 Senate (see section 31, sub-section 1), matters as to which 
 questions of disputed fact might arise, it may be worth 
 consideration whether the determination of these matters 
 should not be left to the courts. Up to the present time 
 however, none of the sub-sections of section 31 have been 
 invoked, with the exception of sub-section 1, and upon that 
 head, the proof of disqualification would appear in the 
 Senate's journals. 
 
 34- The Governor-General may from 
 time to time, bj T instrument under the 
 Great Seal of Canada, appoint a Senator 
 to be Speaker of the Senate (i), and may 
 remove him and appoint another in his 
 stead. 
 
 (i) See R. S. C. (1886), chapter 11, section 24 (a), which 
 provides for a salary of 84,000 per annum for the Speaker 
 of the Senate. See note to section 44, post. 
 
 35 Until the Parliament of Canada 
 otherwise provides (i), the presence of
 
 280 THE B. N. A. ACT SEC. 35. 
 
 at least fifteen Senators, including the 
 Speaker, shall be necessary to constitute 
 a meeting of the Senate for the exercise 
 of its powers. 
 
 (i) " Until the parliament of Canada otherwise pro- 
 vides." See Valin v. Langlois (5 App. Cas. 115), in which it 
 was held that under these same words, in section 41, the 
 Dominion parliament has full power to pass laws in 
 relation to the various matters enumerated in that section. 
 It follows, therefore, that (apart altogether from the pro- 
 visions of the Colonial Laws Validity Act, 1865, about to 
 be noted) the " quorum " of the Senate may be altered by 
 the Dominion parliament. Compare section 48, post, as to- 
 the " quorum " of the House of Commons. This latter 
 cannot so far as the B. N. A. Act affects the question 
 be altered by anything short of Imperial legislation. But, 
 in reference to the constitution of all colonial legislative 
 bodies, the provisions of the Colonial Laws Validity Act, 
 1865, must not be overlooked. By the fifth section of that 
 Imperial Statute, it is enacted : 
 
 " 5. .... Every representative legislature shall , 
 in respect to the colony under its jurisdiction, have, and be 
 deemed at all times to have had, full power to make laws 
 respecting the constitution, powers and procedure of tttch legislature ; 
 provided that such laws shall have been passed in such manner 
 and form as may from*time to time be required by any Act of 
 parliament, letters patent, Order in Council or colonial law, for 
 the time being in force in the colony." 
 
 It may perhaps be contended that this section cannot 
 apply to Canada, as the B. N. A. Act, 1867, is of a later 
 date ; and, certainly, so far as the latter statute contains 
 express provision in reference to the matters referred to in 
 the section quoted, its provisions would govern. 
 
 No colonial legislature, it is submitted, can under this 
 section enlarge the sphere of its legislative jurisdiction, and,. 
 a fortiori, no such authority is conveyed by this section to
 
 THE B. N. A. ACT SEC. 36. 281 
 
 any legislative body in Canada, where the field for the 
 exercise of colonial legislative power is divided in such 
 express terms by the B. N. A. Act. The section relates to 
 the organization of the legislative bodies throughout the 
 colonies, their powers other than legislative, and the mode 
 in which their functions are to be performed, and has no' 
 relation to their sphere of authority. It is submitted, 
 therefore, that the Dominion parliament has full power to- 
 alter these various provisions of the B. N. A. Act, relating 
 to poivers and procedure, except where express or implied 
 limitation upon such power (as, for instance, by section 18, 
 ante) is imposed by the Act. 
 
 So far as the provincial legislatures are concerned, 
 express power to amend the provincial " constitutions " 
 (except as regards the office of Lieutenant-Governor) is 
 conferred by section 92 (sub-section 1), of the B. N. A. Act, 
 and the maxim Expressio unius exclusio est alterius may 
 perhaps be invoked in denial of the power of the Dominion 
 parliament along this line. The argument cannot apply to 
 the question of parliamentary " procedure," but it does very 
 strongly negative any power in the Dominion parliament to 
 alter its "constitution," that being a matter fixed by the 
 agreement of the federating provinces and exhaustively dealt 
 with by the B. N. A. Act. The difficulty is, perhaps, ix> 
 define what provisions of the B. N. A. Act relate to the 
 " constitution " and what to the " procedure " of the 
 Dominion parliament. See further upon this question, 
 sections 69 and 92 (sub-section 1), post, and notes thereto. 
 
 36- Questions arising in the Senate senlSI. 1 ?!) 
 shall be decided by a majority of voices, 
 and the Speaker shall in all cases have a 
 vote, and when the voices are equal the 
 decision shall be deemed to be in the 
 negative. 
 
 (i) " Voting in the Senate." Compare sections 49, 79, 
 and 87, and see note to last section.
 
 282 THE B. X. A. ACT SEC. 37. 
 
 The House of Commons. 
 
 37- The House of Commons shall, 
 subject to the provisions of this Act (i), 
 consist of one hundred and eighty-one (ii) 
 members, of whom eighty-two shall be 
 elected for Ontario, sixty-five for Quebec, 
 nineteen for Nova Scotia, and fifteen for 
 New Brunswick. 
 
 (i) " Subject to the provisions of this Act." See section 
 51, post, providing for a re-distribution of the representa- 
 tion, as between the various provinces, after each decennial 
 census. See also section 52, which provides that the 
 number of members of the House of Commons may be, 
 from time to time, increased, provided the proportionate 
 representation is not thereby affected. Upon the admission 
 of Prince Edward Island and British Columbia, and upon 
 the formation of the Province of Manitoba, the representa- 
 tion in the House of Commons from those provinces was 
 determined, but subject in each case to re-distribution 
 under section 51. See Part IV.,^>osf. The North West Terri- 
 tories would seem to be in a peculiar position with regard 
 to their representation in the House of Commons as well as 
 in the Senate. As to the former, see note (i) to section 21, 
 ante p. 271. As to the latter, see the B. N. A. Act, 1886, 
 which apparently does not limit the power of the Dominion 
 parliament by any reference to section 51 unless, indeed, 
 the provision (section 3) that the B. N. A. Acts of 1867. 
 1871, and 1886, are to be construed together, would have 
 the effect of making applicable to the representation of the 
 territories, the provisions of section 51. This can hardly 
 be, however, as section 51 is distinctly limited to the distri- 
 bution of representation as between the " provinces." 
 
 (ii) " 181 Tn' //-//' /x" There has just been passed by the 
 Dominion parliament a re-distribution bill, consequent upon
 
 THE B. N. A. ACT SECS. 38-40. 283 
 
 the census of 1891, which apportions the membership as 
 
 follows: (55-56 Vic. c. 11). 
 
 Ontario 92 
 
 Quebec 65 
 
 New Brunswick ....... 14 
 
 Nova Scotia 20 
 
 Prince Edward Island 5 
 
 Manitoba 7 
 
 British Columbia 6 
 
 Total 209 
 
 To which add the representation to 
 which the N. W. Territories are 
 entitled under R. S. C. c. 7 . 4 
 
 Grand total 213 
 
 38. The Governor-General shall from 
 
 i i i i_i /-\ 5 i Commons. 
 
 time to time, in the Queen s name, by in- 
 strument under the Great Seal of Canada, 
 summon and call together the House of 
 Commons (i). 
 
 (i) See chapter VIIL, ante, p. 168, as to the exercise by 
 the Governor-General of the prerogatives of the Crown, in 
 connection with the summoning, proroguing and dissolving 
 of parliament , where will also be found noted the difference 
 in the meaning of the word "summon" as applied to the 
 members of the House and of the Senate respectively. 
 
 39. A Senator shall not he capable t s e tm rs House 
 
 PI- i -i r'lj.' j_- of Commons. 
 
 of being elected or or sitting or voting as 
 a member of the House of Commons. 
 
 40. Until the Parliament of Canada gS^S" 
 otherwise provides, Ontario, Quebec, Nova ' 
 Scotia, and New Brunswick, shall, for 
 
 the purposes of the election of mem-
 
 THE B. X. A. ACT SEC. 41. 
 
 bers to serve in the House of Commons^ 
 be divided into Electoral Districts as fol- 
 lows : [Here follows an enumeration 
 (with reference to schedules) of the elect- 
 oral districts in tlie provinces named. In 
 view of what appears in note (i) to section 
 41, it -appears needless to reprint this 
 enumeration.] 
 
 41. Until the Parliament of Canada 
 otherwise provides (i), all laws in force in 
 
 rneut of Cana- . 
 
 da otherwise the several Provinces at the Union rela- 
 
 provides. 
 
 tive to the following matters or any of 
 them, namely, the qualifications and dis- 
 qualifications of persons to be elected or 
 to sit or vote as members of the House 
 of Assembly or Legislative Assembly in 
 the several Provinces, the voters at elec- 
 tions (ii) of such members, the oaths to be 
 taken by voters, the Returning Officers, 
 their powers and duties, the proceedings 
 at elections, the periods during which 
 elections may be continued, the trial of 
 controverted elections (iii), and proceed- 
 ings incident thereto, the vacating of 
 seats of members, and the execution of 
 new writs in case of seats vacated other- 
 wise than by dissolution, shall respec- 
 tively apply to elections of members to 
 serve in the House of Commons for the 
 same several Provinces. 
 
 Provided that, until the Parliament of 
 Canada otherwise provides, at any elec-
 
 THE B. X. A. ACT SEC. 41. 285 
 
 tion for a Member of the House of Com- 
 mons for the District of Algoina, in 
 addition to persons qualified by the law 
 of the Province of Canada to vote, every 
 male British subject aged twenty-one 
 years or upwards, being a householder, 
 shall have a vote. 
 
 (i) " Until the parliament of Oanada otherwise pro- 
 vides." The parliament of Canada has long since otherwise 
 provided, and these four sections (40-43) are now therefore 
 practically effete, except in so far as they confer power to 
 legislate upon the various matters referred to in them. See 
 note (iii) to this section. The electoral districts in the 
 various provinces and territories of the Dominion will be 
 found defined in the Act (55-56 Vic. c. 11) which has just 
 passed the Dominion parliament. The law upon the 
 various matters referred to in section 41 will be found in : 
 R. S. C. (1886), c. 5." The Electoral Franchise Act." 
 
 c. 8. " The Dominion Elections Act." 
 
 c. 9. " The Dominion Controverted Elec- 
 tions Act." 
 
 c. 10. Providing for commissions of enquiry 
 in certain cases. 
 
 c. 11. See sections 9 to 19, sub. tit. " inde- 
 pendence of parliament " ; 
 and the various amendments to these Acts. 
 
 In Willett v. De Grosbois (u), certain pre-Confederatioii 
 laws of the old province of Canada in respect to election 
 matters were held to be still in force in Quebec. The Act, 
 23 Vic. c. 17 (1860), made void any contract referring to or 
 arising out of a parliamentary election, even for payment 
 of lawful expenses. The Dominion parliament, after Con- 
 federation, passed an Act respecting Dominion elections, 
 but not containing this or any like provision, and it was 
 
 (M) 2 Cart. 332 ; 17 L. C. Jur. 293.
 
 286 THE B. X. A. ACT SEC. 41. 
 
 held that this provision, never having been repealed, was in- 
 force in Quebec as respects Dominion elections, under this- 
 section 41, and section 129, jiost, and that therefore a pro- 
 missory note given as a contribution to the expenses of a, 
 subsequent Dominion election, was void. In 1874, however,, 
 this old statute was repealed so far as it affected Dominion 
 elections (37 Vic. c. 9, s. 133), and it was expressly enacted 
 that thereafter pre-Confederation provincial laws touching 
 elections should not apply to elections to the House of 
 Commons. 
 
 (ii) " The voters at elections." The law upon this sub- 
 ject, so far as relates to elections to the House of Commons 
 of the Dominion parliament, will be found in " The Electoral 
 Franchise Act" (R. S. C. c. 5). Compare with this section 
 41, the provisions of section 84, post, relating to elections to 
 the legislative assemblies of the provinces. In reference to 
 provincial "voters' lists" the municipal machinery is utilized. 
 but " the unity in federal and provincial electoral matters 
 has been completely dissevered " (v), and for the Dominion 
 an entirely distinct and independent system has l>vn 
 adopted. The work of preparing the lists is committed to 
 revising officers, sitting in " federal courts." In connection 
 with these courts arose (iv) the question of the jurisdiction 
 of provincial " superior " courts to supervise the exercise of 
 judicial functions by federal courts ; this question will be 
 found discussed in chapter XL, ante, p. 240, and in the notes 
 to section 101,_pos. We may here note, however, that the de- 
 cision in Re Simmons and Dalton was put upon the ground 
 that the right to vote at an election, Dominion or Provincial, 
 is a " civil right " within the meaning of section 92, sub-sec- 
 tion 13, and that therefore a provincial superior court may, by 
 prohibition, restrain a revising officer from improperly inter- 
 fering with such " civil right." The point is referred to in 
 The'berge v. Lanclry, referred to in the next note. In 
 Re North Perth it is thus dealt with : 
 
 (r) Per Meredith, J., in Re North Perth, 21 O.K. at p. 546. 
 
 (w) Re Simmons and Dalton, 12 O.R, 505: Re North Perth, 21 O.K. 538.
 
 THE B. N. A. ACT SEC. 41. 287 
 
 "Now, the group of statutes relating to the election of 
 members to the House of Commons .... are all of the 
 proper competence of the Dominion. In particular, Ontario has 
 no legislative power over the electoral franchise of the Dominion. 
 That subject has been regulated by the Parliament of Canada t 
 and a new jurisdiction conferred for the ascertainment of duly 
 qualified voters in and for the Dominion. 
 
 " This legislation does not trench upon 'property and civil 
 rights in the province,' as was intimated in Ee Simmons and 
 Dalton, 12 0. R. 505. On the contrary, this class of legislation 
 is contemplated and sanctioned by the 41st section of the B. N. A. 
 Act. 
 
 " Ontario has her own like sphere of the electoral legislation 
 provided for in section 84 of the same Act. Neither interferes 
 with the other, because they occupy different planes of political 
 territory, but both are essential for the efficient working of the 
 Canadian system of dual government. 
 
 "The subjects of this class of legislation are of apolitical 
 character, dealing with the citizen as related to the Common- 
 weath (whether province or dominion), and they are kept distinct 
 in the Federal Constitutional Act from matters of civil rights in 
 the provinces, which regard mainly the mewn and tuum as 
 between citizens. It is, in iny view, rather confusing to speak 
 of the right of voting as comprehended under the ' civil rights,' 
 mentioned in section 92, sub-section 13 of the B. N. A. Act. 
 This franchise is not an ordinary civil right ; it is historically 
 and truly a statutory privilege of a political nature, being the 
 chief means whereby the people, organized for political purposes, 
 have their share in the functions of government. The question 
 in hand, therefore, falls within the category not of ' civil rights 
 in the province,' but of electoral rights in Canada." Per 
 Boyd, C. 
 
 We may also refer to Valin v. Langlois (5 App. Cas. 
 115), in which it was intimated that, apart even from this 
 section 41, " the administration of justice in the province " 
 could not properly be construed as covering the trial of 
 controverted election cases, arising out of elections to the 
 House of Commons of Canada. See also the next note.
 
 288 THE B. N. A. ACT SEC. 41. 
 
 It is, we may say, entirely beyond the scope of this 
 work to discuss the general law and practice in reference 
 to elections and election trials. We simply desire to assign 
 these subjects their proper place in our constitutional 
 system. 
 
 (iii) " The trial of controverted elections and proceedings 
 incident thereto" Prior to confederation, the legislatures 
 of the various provinces followed the example of the British 
 parliament, and retained in their own hands the right to 
 decide all questions as to the status of their members, and 
 for some years after Confederation, both the Dominion and 
 provincial legislatures retained this jurisdiction. 
 
 " As the House of Commons in England exercised sole 
 jurisdiction over all matters connected with controverted elections 
 except so far as they may have restrained themselves by statutory 
 restrictions, the several Houses of Assembly always claimed and 
 exercised in like manner the exclusive right to deal with, and be 
 the sole judges of election matters, unless restrained in like 
 manner, and this claim, and the exercise of it, I have never 
 heard disputed ; on the contrary it is expressly recognized as 
 existing in the Legislative Assembly by the Judicial Committee 
 of the Privy Council in Theberge v. Landry," per Ritchie, C.J., 
 in Valin v. Langlois (8 S. C. R. at p. 10). 
 
 See also his short historical sketch of English practice 
 and legislation on this subject, (pp. 12 and 13). In the 
 judgment of the Judicial Committee of the Privy Council (x), 
 to which the learned Chief Justice refers, Lord Cairns 
 (p. 106), speaks of the Quebec Controverted Elections Acts 
 of 1872 and 1875, as " peculiar in their character " : 
 
 " They are not Acts constituting or providing for the decision 
 of mere ordinary civil rights ; they are Acts creating an entirely 
 new, and up to that time unknown, jurisdiction in the particular 
 court of the colony for the purpose of taking out, with its own 
 . consent, of the legislative Assembly, and vesting in that Court, 
 that very peculiar jurisdiction, which, up to that time, had existed 
 in the Legislative Assembly, of deciding election petitions, and 
 
 (x) Theberge v. Landry, 2 App. Cas. 102.
 
 THE B. N. A. ACT SEC. 41. 289 
 
 determining the status of those who claimed to be members of the 
 
 Legislative Assembly." 
 
 and the Committee held, in that case, that those Acts did 
 
 not annex to the decisions of the tribunals constituted by 
 
 them, the ordinary incident of being reviewed by the Crown 
 
 under its prerogative right to hear appeals from colonial 
 
 courts. 
 
 Were there any question of the right of a colonial 
 legislature to set up and exercise such a claim (see notes to 
 section 18, ante, p. 262, and section 69, post), the above sec- 
 tion 41, and the cqrresponding section (section 84), as to the 
 legislatures of Ontario and Quebec, would seem sufficient 
 statutory acknowledgment of it, and, as noted by Ritchie, 
 C.J., Theberge v. Landry is a distinct recognition of its ex- 
 istence. The particular point involved in Valin v. Langlois 
 was as to the power of the Dominion parliament to confer 
 upon provincial courts, jurisdiction to try petitions under the 
 Dominion Controverted Elections Act, 1875, and this will be 
 found discussed in chapter XI, ante, p. 231, et seq. and in 
 the notes to section 92, sub-section 14, post. It was 
 held that the statute was intra vires (3 S. C. R. 1, and 5 
 App. Cas. 115), and we need here only note that, in the view 
 of the Judicial Committee of the Privy Council, the opening 
 clause of section 41 : " Until the paaiiament of Ca~nml<i 
 otherwise provides": impliedly conferred upon the Dominion 
 parliament full power to make laws in relation to the 
 matters enumerated in the remainder of the section, al- 
 though not enumerated in any of the various sub-sections 
 of section 91 and this, irrespective of the construction to 
 be put upon the general words of the opening clause of 
 section 91. 
 
 " That other clause, the 41st, expressly says that the old 
 mode of determining this class of questions was to continue 
 until the parliament of Canada should otherwise provide. It 
 w/tx, therefore, the parliament of Canada which was otherwise to 
 I',* i'ide. It did otherwise provide by the Act of 1873, which 
 Act it afterwards altered and then passed the Act now in question. 
 CAN. Cox. 19
 
 290 THE B. X. A. ACT SEC. 42. 
 
 So far, it would appear to their Lordships very difficult to 
 suggest any ground upon which the competency of the parlia- 
 ment of Canada so to legislate could be called in question. "- 
 per Lord Selborne, 5 App. Gas. at p. 119. See also per Ritchie, 
 C.J., 8S. C. R. at p. 11. 
 
 The legislative jurisdiction of the Dominion parliament 
 with respect to the election of members of that body lias 
 been said by the Court of Appeal for Ontario to be 
 " beyond dispute." See Doyle v. Bell, 11 O. A. R. 32l> (affirm- 
 ing 32 U. C. C. P. 632), in which the provisions of the 
 Dominion Controverted Elections Act, for the prevention of 
 corrupt practices at elections, and for their punishment, 
 either criminally or by the forfeiture of money to be sued 
 for and recovered by an informer, were upheld as the 
 exercise of power necessarily "incident to the power to 
 regulate the mode of election of members of parliament, 
 The contention of the defendant was, that the giving- of a 
 right of action to an informer was legislation as to " civil 
 rights in the province," and therefore nlfr<i vires. See 
 notes to section 92, sub-section 13, y><W. 
 
 The trial of controverted elections was transferred t the 
 courts, in England in iSb'S ; in Ontario in INTO (34 Vic. c. 3) : 
 in Quebec in 1872 (36 Vic. c. o) ; by the Dominion parliament 
 in 1873. See also 35 Vic. c. 10 (Manitoba) : Con. Stat. c. 40 
 (British Columbia): R, O. 1888, c. ."> X \V. Territori.-) : 
 32 Vic. c. 32 (New Brunswick): 37 Vic. c. 21 (P. E. Island): 
 and 3S Vic. c. 25 (Nova Scotia). 
 
 Son rfirst 42- For the lirst election of members 
 to serve in the House of Commons the 
 Governor-General shall cause writs to be 
 issued by such person, in such form, and 
 addressed to such Returning Officers as 
 he thinks fit. 
 
 The person issuing writs under this 
 section shall have the like powers as are
 
 THE B. N. A. ACT SEC. 43-45. 291 
 
 possessed at the Union by the officers 
 charged with the issuing of writs for the 
 election of members to serve in the re- 
 spective House of Assembly or Legislative 
 Assembly of the Province of Canada, 
 Nova Scotia, or New Brunswick ; and the 
 Returning Officers to whom writs are 
 directed under this section shall have the 
 like powers as are possessed at the Union 
 by the officers charged with the returning 
 of writs for the election of members to 
 serve in the same respective House of 
 Assembly or Legislative Assembly. 
 
 As to casual 
 vacancies. 
 
 43- In case a vacancy in the repre- 
 sentation in the House of Commons of 
 any Electoral District happens before the 
 meeting of the Parliament, or after the 
 meeting of the Parliament before provision 
 is made by the Parliament in this behalf, 
 the provisions of the last foregoing section 
 of this Act shall extend and apply to the 
 issuing and returning of a writ in respect 
 of such vacant District. 
 
 44- The House of Commons on its ^g, e a 
 first assembling after a general election commons. 
 shall proceed with all practicable speed to 
 
 elect one of its members to be Speaker. 
 
 45- In case of a vacancy happening ^ll 
 in the office of Spepker by death, resigna- 
 tion or otherwise, the House of Commons 
 shall with all practicable speed proceed
 
 292 THE B. N. A. ACT SECS. 46, 47. 
 
 to elect another of its members to be 
 Speaker. 
 
 Sdl rto 46- The Speaker (i) shall preside at 
 
 all meetings of the House of Commons. 
 
 (i) " The Speaker." See R. S. C. (1886), c. 11, s. 24, 
 which provides that the salary of the Speaker of the House 
 of Commons shall be $4,000 per annum. The duties of the 
 Speaker are not defined in the B. N. A. Act, otherwise than 
 by section 46, but his position (the same is true of the posi- 
 tion of the Speakers of the various Legislative Assemblies) 
 is practically the same as that of the Speaker of the House 
 of Commons in England. His functions are to a certain 
 extent of a semi-judicial nature,'and he is supposed to have 
 thrown aside all party bias upon his elevation to the chair. 
 See Bourinot " Parl. Proc. and Prac." (2nd ed.) p. 202, et seq., 
 where will be found a succinct statement of his position and 
 duties. By way of contrast, see Prof. Wilson's " Congres- 
 sional Government " for a clear statement as to the position 
 of the Speaker of the House of Representatives at Washing- 
 ton. There he is supposed to exercise the powers of his 
 office in furtherance of the aims of his political party, and 
 is practically the leader of that party in the House ; the 
 chairmen of the various standing committees of Con- 
 gress are appointed by him, and by exercising judicious 
 selection in this respect he is able to ensure that his views 
 upon public matters will find practical expression in the 
 work of Congress. 
 
 ra r s e v b- in 47. Until the Parliament of Canada 
 speaker. otherwise provides (i), in case of the ab- 
 sence for any reason of the Speaker from 
 the chair of the House of Commons for a 
 period of forty-eight consecutive hours, 
 the House may elect another of its mem- 
 bers to act as Speaker, and the member
 
 THE B. X. A. ACT SECS. 48-50. 293 
 
 so elected shall during the continuance 
 of such absence of the Speaker have and 
 execute all the powers, privileges, and 
 duties of Speaker. 
 
 (i) "Until the Pini'm,,,-,^ <>f ('<i,,<t<l otherwise pro- 
 ,-,'fiW See note (iii) to section 41, ante. By 48 & 49 Vic. 
 c. 1, there was created the office of Deputy Speaker, with 
 powers as by that statute defined. 
 
 48. The presence of at least twenty g f of . 
 members of the House of Commons shall u 
 be necessary to constitute a meeting of 
 the House for the exercise of its powers, 
 and for that purpose the Speaker shall be 
 reckoned as a member. 
 
 49. Questions arising in the House of 
 Commons shall be decided by a majority 
 of voices other than that of the Speaker 
 and when the voices are equal, but not 
 otherwise, the Speaker shall have a vote. 
 
 (i) " Quorum' "voting." Compare sections 35 and 36, 
 and see notes to those sections. See also section 87, and 
 notes thereto, po*t. 
 
 50. Every House of Commons shall gSSS? f 
 continue for five years (i) from the day of c 
 
 the return of the writs for choosing the 
 House (subject to be sooner dissolved (ii) 
 by the Governor-General), and no longer. 
 
 (i) "Mull cor>ti IKK- for HI-;' years." This is one of those 
 matters which, it is submitted, the Dominion parliament 
 has no power to alter see note (i) to section 35, ante 
 while provincial legislatures may lengthen or shorten the 
 period of their own duration. See section 92, sub-section 1.
 
 294 THE B. N. A. ACT SEC. 51. 
 
 (ii) "Dissolved by the Governor-General" See chapter 
 VIII., ante, p. 165, for a full discussion of the powers of the 
 Governor-General in connection with the summoning, pro- 
 roguing, and dissolving of parliament. 
 
 fof 51- On the 'completion of the census 
 tlSn res in the year one thousand eight hundred 
 and seventy-one, and of each subsequent 
 decennial census, the representation of 
 the four Provinces shall be readjusted by 
 such authority (i), in such manner and 
 from such time as the Parliament of Can- 
 ada from time to time provides, subject 
 and according to the following rules : 
 
 (1) Quebec shall have the fixed num- 
 ber of sixty-five members. 
 
 (2) There shall be assigned to each 
 of the other Provinces such a 
 
 >i <o ' number of members as will bear 
 
 the same proportion to the number 
 of its population (ascertained at 
 such census) as the number sixty- 
 five bears to the number of the 
 population of Quebec (so ascer- 
 tained). 
 
 (3) In the computation of the num- 
 ber of members for a Province a 
 fractional part not exceeding one- 
 half of the whole number requisite 
 for entitling the Province to a 
 member shall be disregarded ; but 
 a fractional part exceeding one- 
 half of that number shall be equiv- 
 alent to the whole number.
 
 THE B. N. A. ACT SEC. 51. 295 
 
 (4) On any such re-adjustment the 
 number of members for a Province 
 shall not be reduced unless the 
 proportion which the number of 
 the population of the Province bore 
 to the number of the aggregate 
 population of Canada at the then 
 last preceding re -adjustment of 
 the number of members for the 
 Province is ascertained at the then 
 latest census to be diminished by 
 one- twentieth part or upwards. 
 
 (5) Such re-adjustment shall not take 
 effect until the termination of the 
 then existing Parliament. 
 
 (i) " By suck authority." From the debates on the 
 Quebec Resolutions in the parliament of (old) Canada, it 
 would appear that some uncertainty existed as to the terms 
 of the 24th resolution. As printed in the volume of Debates 
 011 Confederation (published by authority), resolutions Nos. 
 23 and 24, read as follows : 
 
 "23. The legislature of each province shall divide such pro- 
 vince into the proper number of constituencies and define the 
 boundaries of each of them. 
 
 " 24. The local legislature of each province may, from time to 
 time, alter the electoral districts for the purpose of representation 
 in *nch local legislature, and distribute the representation to which 
 the province is entitled in such local legislature, in any manner 
 such legislature may see fit." 
 
 In Gray's " Confederation " Mr. Gray was a delegate 
 to the Conference, from New Brunswick the 24th resolu- 
 tion is given thus : 
 
 " The local legislature of each province may, from time to 
 time, alter the electoral districts for the purposes of representation 
 in the Home of Commons, and distribute the representation to
 
 296 THE B. N. A. ACT SEC. 51. 
 
 which the province is entitled in any manner such legislature 
 may see fit." 
 
 In moving the resolutions in the House, the Attornry- 
 General-West (Sir John A. Macdonald) said : 
 
 " A good deal of misrepresentation has arisen from the acci- 
 dental omission of some words from the 24th resolution. It was 
 thought that by it the local legislatures were to have the power 
 of arranging hereafter, and, from time to time, of re-adjusting 
 the different constituencies, and settling the size and boundaries 
 of the various electoral districts. The meaning of the resolution 
 is simply this : that for thejrst General Parliament, the arrange- 
 ment of constituencies shall be made by the existing local legis- 
 latures ; that in Canada, for instance, the present Canadian 
 parliament shall arrange what are to be the constituencies of 
 Upper Canada, and to make such changes as may be necessary 
 in arranging for the 17 additional members given to it by the 
 constitution ; and that it may also, if it sees fit, alter the 
 boundaries of the existing constituencies in Lower Canada. In 
 short, this parliament shall settle what shall be the different 
 constituencies electing members to the first Federal Parliament. 
 And so the other provinces, the legislatures of each will fix the 
 limits of their several constituencies in the session in which they 
 adopt the new constitution. Afterwards the local legislatures 
 may alter their own electoral limits as they please, for their own 
 local elections. But it would evidently be improper to leave to 
 the local legislatures the power to alter the constituencies send- 
 ing members to the General Legislature, after the General 
 Legislature shall have been called into -existence. . . . No; 
 after the General Parliament meets, in order that it may have 
 full control of its own legislation, and be assured of its position, 
 it must have the full power of arranging, and re-arranging the 
 electoral limits of its constituencies as it pleases, such being one 
 of the powers essentially necessary to such a legislature." 
 Confed. Deb. p. 39. 
 
 Both of these resolutions were struck out at the con- 
 ference, in London, of the delegates from those provinces 
 which had agreed to the Quebec Resolutions, probably 
 because the limits of the various constituencies had been
 
 THE B. X. A. ACT SEC. 51. 297 
 
 settled by the local legislatures in the manner pointed out 
 by Sir John Macdonald, and such arrangement was put 
 into' statutory form, in section 41. Nothing appears in these 
 resolutions, or in the debates thereon, in reference to the 
 question of delegating the power of " distribution " to an 
 authority independent of parliament ; but, as we write, the 
 question has been raised in the Dominion parliament, and 
 two of the Fathers of Confederation are reported to have 
 stated that the above section 51, was deliberately framed as 
 it is, in order to take from parliament this dangerous power 
 dangerous in the hands of any majority and to secure 
 its exercise by an independent authority. If such was the 
 intention, it has been persistently ignored, and the re-dis- 
 tribution after both the census of 1871 and of 1881, was 
 effected by an Act of the Dominion parliament in the exer- 
 cise of its ordinary legislative functions ; and an Act (55-56 
 Vic. c. 11) has just been passed by the Dominion parliament 
 providing for the re-distribution consequent upon the census 
 of 1892. As a legal proposition, the power of the Dominion 
 parliament to constitute itself the authority by which the 
 re-adjustment is to be effected, cannot be doubted what- 
 ever may be said of the impropriety of so doing. Under 
 section 40, ante, p. 283, the power of the Dominion 
 parliament to alter electoral districts is clearly estab- 
 lished. See note (i) to section 41. This section 51 
 applies only to the re-adjustment of the representation 
 of the provinces as between themselves, and has no refer- 
 ence to the boundaries of the electoral districts in each 
 province, and it would appear therefore that the re- 
 adjustment, under this section, is a matter merely of 
 mathematics. The wording of section 52 bears out this 
 construction, indicating as it does that the "fixed quantity" 
 in the scheme of representation, is the proportionate repre- 
 sentation of the provinces. The electoral districts may be 
 altered at any time (section 40), and the total number of 
 members increased (section 52), by the parliament of Canada,
 
 298 THE B. N. A. ACT SECS. 52-54. 
 
 " provided the proportionate representation of the provides 
 prescribed by this Act is not thereby disturbed." 
 
 numb a e s r e of f 52- The number of members of the 
 
 commons. House of Commons may be from time to 
 time increased by the Parliament of Can- 
 ada, provided the proportionate represen- 
 tation (i) of the Provinces prescribed by 
 this Act is not thereby disturbed. 
 
 (i) " The proportionate repreo&ntatwn" See note (i) 
 to section 37, ante. 
 
 MONEY VOTES (i), ROYAL ASSENT. 
 
 53. Bills for appropriating any part 
 
 ,. , i ii- P 
 
 ot the public revenue, or for imposing any 
 tax or impost, shall originate in the 
 House of Commons. 
 
 (i) " Money vote*." The subject of money votes relates 
 more particularly to parliamentary procedure and practice, 
 and the subject will be found fully discussed in Dr. Bouri- 
 not's work upon that subject (2nd ed., chapter XVII). The 
 restriction provided for by section 54 was first introduced 
 into Canada by the Union Act, 3 & 4 Vic. c. 35, 
 s. 57. See Lord Durham's report, p. 34. The restric- 
 tion is enforced by the Speaker upon a point of order 
 taken. 
 
 Soni?uioney 54. It shall not be lawful for the 
 House of Commons to adopt or pass any 
 vote, resolution, address, or bill for the 
 appropriation of any part of the public 
 revenue, or of any tax or impost, to any 
 purpose that has not been first recom- 
 mended to that House by message of the 
 Governor-General in the Session in which
 
 THE B. X. A. ACT SECS. 55, 56. 299 
 
 such vote, resolution, address, or bill is 
 proposed. 
 
 55. Where a bill passed by the ffffi/SSU. 
 Houses of Parliament is presented to the 
 Governor-General for the Queen's assent, 
 
 he shall declare, according to his discre- 
 tion, but subject to the provisions of this 
 Act and to Her Majesty's instructions, 
 either that he assents thereto in the 
 Queen's name, or that he withholds the 
 Queen's assent, or that he reserves the 
 bill for the signification of the Queen's 
 pleasure. 
 
 (i) " Royal assent." The provisions of this and the 
 two following sections have been already fully discussed ; 
 see ante, chapter VII., p. 147, et teg. 
 
 56. Where the Governor-General as- g s a ^S ce 
 
 i -11 ,1 /~v , 1 Council of Act 
 
 sents to a bill in the Queens name, he assented to by 
 shall by the first convenient opportunity General, 
 send an authentic copy of the Act to one 
 of Her Majesty's Principal Secretaries of 
 State; and if the Queen in Council within 
 two years after the receipt thereof by the 
 Secretary of State thinks fit to disallow 
 the Act, such disallowance (with a certifi- 
 cate of the Secretary of State of the day 
 on which the Act was received by him) 
 being signified by the Governor-General, 
 by speech or message to each of the 
 Houses of the Parliament, or by proclama- 
 tion, shall annul the Act from and after 
 the day of such signification.
 
 300 THE B. N. A. ACT SECS. 57, 58. 
 
 57. A bill reserved for the significa- 
 tion of the Queen's pleasure shall not 
 have any force unless and until within two 
 years from the day on which it was pre- 
 sented to the Governor-General for the 
 Queen's assent, the Governor-General sig- 
 nifies, by speech or message, to each of the 
 Houses of the Parliament or by proclama- 
 tion, that it has received the assent of the 
 Queen in Council. 
 
 An entry of every such speech, mes- 
 sage, or proclamation shall be made in the 
 Journal of each House, and a duplicate 
 thereof duly attested shall be delivered to 
 the proper officer to be kept among the 
 Records of Canada. 
 
 V. PROVINCIAL CONSTITUTIONS (i). 
 Executive Power (ii). 
 
 o/St 1 ^ 58- For each Province there shall be 
 
 norso? e) an officer (iii), styled the Lieutenant- 
 provinces. \ . 
 
 Governor (iv), appointed by the Governor- 
 General in Council by instrument under 
 tbe Great Seal of Canada (v). 
 
 (i) " Pro'-i Hi-mi ruiiffitiifniiiH." 1 In chapter III. will !>e 
 found a discussion of the question how far the pre-C<>n- 
 t'ederation provincial constitutions are continued l>y the 
 B. N. A. Act, That chapter was written in order to show 
 that the working principle of those earlier constitutions 
 was evidently intended to he continued in the constitutions 
 of the provinces as defined in the B. N. A. Act. Ever since 
 the passage of that Act, there has been in progress a peace- 
 ful warfare as to the position of the provinces under our
 
 THE B. X. A. ACT SEC. 53. 301 
 
 constitutional system, a conflict not yet perhaps ended 
 but now become hopeless to those who would deny the 
 full autonomy of the provinces in relation to all those 
 matters which, by the B. X. A. Act, are committed to the 
 legislative authority of the provincial assemblies. In the 
 earlier, stages, the attack was directed toward narrowing 
 the range of the legislative power of the provinces, and this 
 phase of the conflict has been already dealt with in chapter 
 X. At the present time the debateable ground is that 
 relating to the exercise of executive power in connection 
 with the government of the provinces, the contention of 
 those who would belittle the executive " sphere of 
 authority " of the provinces being, in effect, that under the 
 B. X. A. Act, there has been a severance of the functions 
 of government in relation to some, at least, of those subject 
 matters which, for purposes of legislative action, have 
 been committed to the provinces. In the earlier pages 
 of this book we have not hesitated to attack this 
 position, and further reference to the question will be found 
 in the following notes. We should mention, however, that 
 the first three chapters of this book were already in press 
 before the report of the judgment of the Judicial Committee, 
 in Liquidators of Maritime Bank v. Receiver General of 
 X/w Brunswick (Times L. R. Vol. VIII., p. 677) reached us, 
 and this fact will account for the lack of reference to this 
 important decision as supporting the views expressed in 
 those chapters- upon this question of the position of the 
 provinces. The particular point for decision was as to the 
 right of the provincial executive of Xew Brunswick to 
 claim the benefit of the prerogative right of the Crown to 
 priority over other creditors, in the winding up of the 
 affairs of the Bank, but the judgment of the Committee 
 deals with the general question, and, as we have already 
 intimated, affirms, with final authority, the full autonomy 
 of the provinces. 
 
 "The appellants conceded that, until the passage of the 
 B. N. A. Act, 1867, there was precisely the same relation between
 
 302 THE B. N. A. ACT SEC. 58. 
 
 the Crown and the province which now subsists between the 
 Crown and the Dominion ; but they maintained that the effect of 
 the statute had been to sever all connection between the Crown 
 and the provinces, to make the government of the Dominion the 
 only government of Her Majesty in North America, and to reduce 
 the provinces to the rank of independent nranicipal institutions. 
 For these propositions their Lordships have been unable to find 
 either principle or authority. Their Lordships do not think it 
 necessary to examine in minute detail the provisions of the Act 
 of 1867, which nowhere professed to curtail in any respect the 
 rights and privileges of the Crown, or to disturb the relations 
 then subsisting between the Sovereign and the provinces. The 
 object of the Act was neither to weld the provinces into one, nor 
 to subordinate provincial governments to a central authority, 
 but to create a^federal government in which they should all be 
 represented, intrusted with the exclusive administration of affdirs 
 in which they had a common interest, each province retaining 
 its independence and autonomy. That object was accomplished 
 by distributing between the Dominion and the provinces all 
 powers, e.i-ecutiff and h-<iixl<ttin>, and all public property and 
 revenues which had previously belonged to the provinces, so that 
 the Dominion government should be vested with such of those 
 powers, property, and revenue as were necessary for the due per- 
 formance of its constitutional functions, and that the remainder 
 should be retained by the provinces for the purposes of provincial 
 government." 
 
 (ii) " Executive power," In arriving at a proper under- 
 standing., of the position of the provincial executive, nothing- 
 is more essential than to have a definite idea of the netvs- 
 sary connection which, in any country where the govern- 
 ment is a government-according-to-law, must exist between 
 the legislative and executive powers in government: and 
 various phases of this question will be found discussed in 
 chapter I. (ante, p. 12, et xeq.), chapter III. (tintc, p. 4o. 
 ' > *'''/.), arid chapter VI. (ante, 142, et seq.), and in the noti-s 
 to section 9, ante, and the other notes to this section os. 
 
 (iii) " TJu'i'c xlmll hf <i a 0/77 ((>>" Compare section 10
 
 THE B. X. A. ACT SEC. 58. 303 
 
 a life, and see notes thereto. See also chapter III., fiiite, p. 
 48, and notes to section 59, post. 
 
 (iv) " The Lieutenant-Governor." The Lieutenant- 
 Governor of a province is the chief executive officer " carry- 
 ing on the government of the province " see section 62, 
 jitoxt. In some of the cases will be found discussed the 
 question whether or not a Lieutenant-Governor is to be 
 considered a representative of the Queen. In Regina v. 
 Amer (?/), Harrison, C.J., laid it down that the Governor- 
 General is the only officer named in the B. X. A. Act who 
 answers that description see notes to section 10, trnte; and 
 in Regina v. Bank of Xova Scotia, in our Supreme Court, 
 Mr. Justice Taschereau says (z) : " The Lieutenant-Gover- 
 n< rs, no doubt, in the performance of certain of their duties 
 as such, under the B. N. A. Act, may be said to represent Her 
 Majesty in the same sense, and as fully, perhaps, as Her 
 Majesty is represented, for instance, by justices of the peace, 
 constables, and bailiffs, in the execution of their duties." A 
 reference to chapter VIII., ///c, and to the cases which 
 define the position of the Governor of a colony, will show 
 that this description of a Lieuteiiant-Govemor is equally 
 applicable to the Governor-General. Both are "officers," 
 with powers, authorities, and functions distinctly limited. 
 and they can be said to represent Her Majesty, not in the 
 sense of being Viceroys, but only to the extent to which 
 powers are delegated to them, by virtue of their commis- 
 sions, or under the B. X. A. Act. In the very case to which 
 we have last referred The Queen v. Bank of Xova Scotia 
 Mr. Justice Strong points out that the Queen is at the head 
 of the government of Canada see section 9 and notes 
 thereto. This section, as was pointed out, is declaratory, 
 and, so considered, it entirely agrees with what is laid 
 down by the older writers as to the necessary unity of 
 executive government throughout the Empire. " The King 
 of England is therefore not only the chief, but properly 
 
 ((/) 42 U. C. Q. B. 391. (z) 11 S. C. B. at p. 24. 
 
 4
 
 304 THE B. X. A. ACT SEC. 58. 
 
 the sole magistrate of the nation ; all others acting by com- 
 mission from, and in due subordination to him" (</). 
 Anything therefore which may be said in the way of 
 belittling the office of Lieutenant-Governor, is equally 
 applicable to the position of the Governor-General with 
 this difference, of course, that the territorial sphere of 
 authority of the latter is larger, and the range of matters 
 in connection with which his powers may be exercised quite 
 di tie rent from that of a Lieutenant-Governor. But each of 
 these officers is characterized by the B. N. A. Act see sec- 
 tions 10 and 62 as the chief executive officer " carrying on 
 the government " of the Dominion and the provinces re- 
 spectively. Any officer, exercising executive functions 
 anywhere in the British Empire, must act under commis- 
 sion from the Queen, and, to the extent indicated by his 
 commission and any Imperial statute in that behalf, does 
 represent, n ml net on behalf of o.i"! > n t/ i<ine of, the 
 executive head of the Empire. We pointed out in the 
 notes to section 9, ante, that the Governor-General of 
 Canada occupies a dual position, and the same may be said 
 of the Lieutenant-Governor of a province. In a sense, he 
 is a member of the executive staff of the Dominion govern- 
 ment, as well as executive head of the province. But there 
 is this difference to be noted between his position, and that 
 of the Governor-General, namely, that while, on the one 
 hand, the Imperial parliament has legally unlimited power 
 over the Dominion in respect of every conceivable subject 
 matter, and may therefore increase or diminish the power 
 of a Governor-General, the parliament of Canada, on the 
 other hand, cannot invade the legislative sphere of a pro- 
 vincial assembly, or interfere in relation to its executive 
 head. This practical result therefore ensues that a Lieuteu- 
 ant-Govemor, once appointed, is subject to the "instruc- 
 tions" of the Governor-General only upon, at most, those 
 matters in respect to which the executive of the Dominion 
 
 i./ 1 Chitty, p. 4.
 
 THE B. N. A. ACT SEC. 58. 305 
 
 is entitled to exercise supervision over provincial legisla- 
 tion. As executive head of a province, the Lieutenant 
 Governor is commissioned, by the B. N. A. Act, to " carry 
 on the government of the province"; and any attempt t( 
 instruct him as to how he should exercise the powers 
 authorities, and functions of his office in relation to matter 
 within the sphere of provincial authority, would be in 
 direct subversion of the principle of provincial autonomy 
 as now authoritatively declared. 
 
 The division of subject matters affected by that Act 
 being exhaustive (i. e., exhaustive of all matters over which 
 colonial legislatures have power) and exclusive as well (b), 
 the same principle must be acknowledged in reference to 
 the division of those matters for executive action. Most of 
 the cases which have arisen under the B. N. A. Act have 
 involved enquiry as to the position of the dividing line, 
 for legislative purposes, between Dominion and Provincial 
 jurisdiction ; but, as we have always insisted, the ascertain- 
 ment of such line is at the same time the ascertainment of 
 the line of division for executive action. In more recent 
 times the question has arisen directly in reference to the 
 exercise of^executive power, and the courts of Ontario have 
 distinctly recognized the principle for which we have been 
 contending. Reference has been made to the limitation of 
 sections 12 and 65 to statutory "powers," etc.; and as to 
 these, the provisions of the B. N. A. Act seem to be per- 
 fectly clear. See chapter III., ante, p. 50. The dispute 
 has been in reference to what may be called prerogative^ 
 proper, viz., those powers connected with executive govern- 
 ment which depend for their efficacy upon the common law. 
 
 In 1887, the Legislative Assembly of Ontario passed 
 
 an Act respecting the executive administration of the laws 
 
 of this province," making provision as to the exercise of 
 
 executive authority in connection with these common law 
 
 prerogatives. The question of the validity of this Act was 
 
 (6) See Chapter X. 
 CAN. Cox. 20 
 
 :
 
 306 THE B. N. A. ACT SEC. 58. 
 
 submitted to the Divisional Court of the Chancery Division, 
 which decided in favor of its validity, and an appeal to the 
 Court of jj Appeal for Ontario was dismissed. The Act was 
 distinctly limited to executive action in connection with 
 those subject matters over which the provincial legislative 
 assembly has jurisdiction, and (construing the Act as so 
 limited) .the courts decided that, although possibly the Act 
 was unnecessary, it could not be said to be ultra vires. 
 The position may be summed up in the language of Mr. 
 Justice Burton (c): 
 
 " I bave always been of opinion that the legislative and 
 executive powers granted to the x province were intended to be 
 co-extensive, and that the Lieutenant-Governor became entitled, 
 rirt'ite ufficii, and without express statutory enactment, to exer- 
 cise all prerogatives incident to executive authority in matters in 
 which provincial legislatures have jurisdiction ; that he had in 
 fact delegated to him the administration of the royal prerogatives 
 as far as they are capable of being exercised in relation to the 
 government of the provinces, as fully as the Governor- General 
 has the administration of them in relation to the government of 
 
 the Dominion In my view, no legislation was 
 
 necessary, but, to remove doubts, such an Act seems desirable 
 and free from objection." 
 
 Reference should no.v be added to the passage from the 
 judgment of the Privy Council quoted in note (i). "///r. 
 p. 302, and to the further passage quoted in the next note. 
 See, also, notes to section (i!), />o*t, as to the position of the 
 Lieutenant-Governor in relation to the provincial assem- 
 blies, where we have endeavored to make clear that tin- 
 Queen is a .[constituent branch of such assemblies, being 
 represented therein by the Lieutenant-Governor, just as sin- 
 is represented in the Dominion parliament by the (Jovernor- 
 ( Jeneral. 
 
 (v) "Af>jtu! nfi'il />>/ tin- Cfovernof-Oenerai, etc" Much 
 stress has been laid up;->n this clause in support of the con- 
 
 (c) Atty.-Genl. for Canada v. Atty.-Genl. of Ont., 1 ( J O. A. R. at 
 p. 38.
 
 THE B. N. A. ACT SEC. 58. 307 
 
 tention that a Lieuteiiant-Govemor is not a representative 
 of the Crown, but of the Governor-General. The following- 
 extract from the judgment of the Judicial Committee of the 
 Privy Council in Liquidators, &c. v. Receiver-General of 
 New Brunswick, will show how the question has been 
 finally disposed of : 
 
 " The appellants .... relied upon the fact that, 
 whereas the Governor-General of Canada is directly appointed by 
 the Queen, the Lieutenant-Governor of a Province is appointed, 
 not by Her Majesty, but by the Governor-General, who has also 
 the power of dismissal. If the Act had not committed to the 
 Governor-General the power of appointing and removing Lieu- 
 tenant-Governors, there would have been no room for the argu- 
 ment, which, if pushed to its logical conclusion, would prove that 
 the Governor-General, and not the Queen, whose viceroy he is, 
 became the sovereign authority of the province whenever the 
 Act of 1867 came into operation. But the argument ignores the 
 fact that by section 58 the appointment of a provincial Governor 
 is made by the 'Governor-General in Council, by instrument 
 under the Great SeaTVf Canada,' or, Tin oilier words, by the 
 executive government of the Dominion Avhich is by section :) 
 
 7 11 i i- " a- i i. i '" ' i /^> > 
 
 expressly declared ' to continue and be vested in the Queen. 
 There is no constitutional anomaly in an executive oilic-jr of the 
 Crown receiving his appointment at the hands of a governing 
 body if /^ i hare n jmn-er und n<> function.* t'.wpt as representatives oj 
 tht> ('num. The Act of the Governor-General and his council 
 in making the appointment was, within the statute, the Act of 
 the Crown ; and a Lieutenant-Governor, when appointed, wa 
 as much the representative of Her Majesty for all purposes oi 
 provincial government, as the Governor-General himself was for 
 all purposes of Dominion government .... 
 and the decisions in Mercer v. Attorney-General of Ontario 
 (8 App. Cas. 767), St. Catherines Milling Co. v. The Queen 
 (14 App. Cas. 4(j), and Attorney-General of British Colum- 
 bia v. Attorney-General for Canada (14 App. Cas. 295). art- 
 referred to by the Committee as " based upon the general 
 recognition of Her Majesty's co'ntiuacd sovereignty under 
 the Act of 1S(57."
 
 308 THE B. N. A. ACT SEC. 59. 
 
 The view expressed in the italicized portion of the above 
 extract affirms what we had ventured to lay down (mite, 
 p. 304), that a Lieutenant-Governor, once appointed, is sub- 
 ject to " instructions " from the Governor-General only upon 
 those matters connected with the exercise, by the executive 
 of the Dominion, of supervision over provincial legislation. 
 1 See section 90, post. 
 
 offl n ce r o e f of 59- A Lieutenant - Governor shall 
 
 Governor, hold office during the pleasure of the 
 Governor-General ; hut any Lieutenant- 
 Governor appointed after the commence- 
 ment of the first Session of the Parlia- 
 ment of Canada shall not be removable (i) 
 within five years from his appointment, 
 except for cause assigned, which shall be 
 communicated, to him in writing within 
 one month after the order for his removal 
 is made, and shall be communicated by 
 message to the Senate and to the House 
 of Commons within one week thereafter 
 if the Parliament is then sitting, and if 
 not then within one week after the com- 
 mencement of the next Session of the 
 Parliament. 
 
 (i) " Shall not be removable .... except for 
 caused The position of the Governor-General in reference 
 to the removal of a Lieutenant-Governor has been already 
 referred to see notes to section 9, ante, p. 251. The only 
 instance of such removal which has so far occurred under 
 the B. N. A. Act, is that of Lieutenant-Governor Letellier, 
 and it was in connection with his removal that the Im- 
 perial authorities laid down the " conventional " rule that 
 the Governor-General should act, under this section 59, 6^ 
 ivitk t1i< advice of flit- Qt.i<-"i>'* 2'riri/ Council for
 
 THE B. X. A. ACT SEC. 59. 309 
 
 C<I,HH!<I. But, as has been already pointed out, the power 
 of removal (subject to the observance of the formalities 
 prescribed by the section) is, legally, with the Govemor- 
 General alone. The cause assigned in the Order for the 
 removal of Lieutenaiit-Governor Letellier was that, after 
 the vote of the two Houses of the Dominion parliament 
 censuring him for the dismissal of his ministers, his useful- 
 ness as a lieutenant-Governor was gone. Had Lieutenant- 
 Governor Letellier declined to recognize the validity of the 
 Order in Council, a very nice question would have been 
 raised as to the meaning of the phrase "for cause assigned," 
 for it is very doubtful if the facts alleged constituted 
 " cause " within the meaning of this section. Is the Do- 
 minion government for, under the terms of the despatch 
 to the Governor-General in this case, it is left with that 
 government the sole judge of what constitutes " cause "? 
 If so, a Lieutenant-Governor holds his office subject possibly 
 to partisan caprice, not to law. Is the vote of the Houses 
 of the Dominion parliament an element of " cause "? If so, 
 a Lieutenant-Governor is subject to the vote of a parlia- 
 ment which cannot enact a single law to govern his conduct 
 in the administration of the affairs of the province over 
 which he presides. On the other hand, it may be argued 
 that as the Lieutenant-Govemor is a link in the chain of 
 federal government (now practically operative throughout 
 the Empire), appointed by the executive of the Dominion, 
 who are responsible to the electorate of Canada t// /'"iit/li thr 
 Dominion ]>(/ r/iiiuK'iit, the decision of that parliament, ex- 
 pressive of the will of the people of Canada as a whole, 
 should govern in regard to all matters entrusted to the 
 executive of the Dominion. The difficulty is that the ex- 
 ecutive power, in this regard, of the Dominion government 
 is entirely divorced from all legislative power. That 
 g< ivernment " has no powers and no functions except as re- 
 presentatives of the Crown " in this matter of the removal 
 of a Lieutenant-Govemor (see <rnte, p. 307. It strikes one
 
 310 
 
 THE B. N. A. ACT SECS. 60-63. 
 
 
 
 Governor. 
 
 that it may perhaps be advisable for the Imperial authori- 
 ties to reconsider the " instructions " above referred to. 
 
 60- The salaries of the Lieutenant- 
 Governors shall be fixed and provided by 
 the Parliament of Canada. 
 
 61- Every Lieutenant - Governor, 
 shall, before assuming the duties of his 
 office, make and subscribe before the 
 Governor- General or some person author- 
 ized by him, oaths of allegiance and office 
 similar to those taken by the Governor- 
 General. 
 
 62- The provisions of this Act refer- 
 ring to the Lieutenant-Governor extend 
 and apply to the Lieutenant- Governor for 
 the time being of each Province or other 
 the chief executive officer or administrator 
 for the time being carrying on the govern- 
 ment (i) of the Province, by whatever 
 title he is designated. 
 
 (i) "Carry in;/ <>n tin- <j<> m- /////<-/// of tltc provinc . 
 See notes to section 10, <o>fe, p. 254, and to section 58, ante, 
 p. 303. The word " government," in its widest sense, com- 
 prises the exercise of both the law-making and the law- 
 executing power, but here it has more particular reference 
 to the exercise of the executive powers of government, the 
 legislative powers of a Lieutenant-Governor being exercis- 
 able only in connection with the legislative assembly. See 
 section 69, po*t. 
 
 63- The Executive Council (i) of On- 
 tario and of Quebec shall be composed of 
 such persons as the Lieutenant-Governor 
 
 ouurioau 
 
 Q-iebec.
 
 THE B. X. A. ACT SEC. 63. 311 
 
 from time to time thinks fit, and in the 
 first instance of the following officers, 
 namely: the Attorney-General (ii), the 
 Secretary and Registrar of the Province, 
 the Treasurer of the Province, the Com- 
 missioner of Crown Lands, and the Com- 
 missioner of Agriculture and Public 
 Works, with, in Quebec, the Speaker of 
 the Legislative Council and the Solicitor- 
 General. 
 
 (i) " Executive Council" Compare section 11, and see 
 notes thereto, ante, p. 255. Since 1867, the Executive 
 Council of Ontario has been increased by the addition of a 
 Minister of Education and a Minister of Agriculture. See 
 section 92, sub-section 1, and notes thereto. 
 
 (ii) " The Attorney-General." The position of a pro- 
 vincial Attorney-General will be found discussed in Attor- 
 ney-General v. Niagara Falls International Bridge Co., 20 
 Kraut, 34: Attorney-General v. International Bridge Co., 
 28 Grant, 65, 6 O. A. R. 537: and in Mousseau v. Bate, 27 
 L. C. Jurist, 153. In the first case, it was held by Mr. 
 Justice Strong, that the Attorney-General of a province is 
 the officer of the Crown who is considered as present in 
 the courts of the province to assert the rights of the 
 Crown, and of those who are under its protection, and that 
 the provincial Attorney-General, and not the Attorney - 
 General for the Dominion, is the proper party to tile an 
 information when the complaint is, not of an injury to 
 property vested in the Crown as representing the govern- 
 ment of the Dominion, but of a violation of the rights of 
 the public of a province. The information, in that case, 
 was in respect of a nuisance caused by the defendant 
 company's interference with a railway incorporated prior to 
 LS67. In the second case it was held by the Court of 
 Appeal, reversing the judgment of Spragge, C., that the
 
 312 THE B. N. A. ACT SEC. 63. 
 
 non-compliance by a company, incorporated by an Act of 
 the Dominion parliament, with the terms of such Act, such 
 non-compliance operating, as was alleged, to the detri- 
 ment of the locality in which the work was being carried 
 on, could not be the subject matter of an information at 
 the instance of the provincial Attorney-General. In Mous- 
 seau v. Bate, decided in Quebec (1883), it was held that 
 proceedings in the nature of a sci. fa. to set aside letters 
 patent of invention, issued under the Dominion Patent Act, 
 cannot be instituted in the name of the Provincial Attorney- 
 General, but can only be legally taken by the Attorney- 
 General for the Dominion. See further, upon this last 
 subject, the notes to sub-section 22 of section 91, /tout. 
 It has been practically conceded by the Dominion govern- 
 ment that a provincial Attorney-General properly repre- 
 sents the Crown in criminal prosecutions before provincial 
 courts, but so far as we are aware there has been no 
 judicial determination of the point. It seems difficult to 
 appreciate the distinction between proceedings in respect 
 of a breach of criminal law, and proceedings founded 
 upon a breach of " patent " law. Dominion statutes, how- 
 ever, expressly recognize the intervention of a provincial 
 Attorney-General in the former class of cases. See Abraham 
 v. The Queen, 6 S. C. R. 10. 
 
 As to the liability of members of the Executive Coun- 
 cil for acts done by them in the performance of their duties 
 as such, see Molson v. Chapleau (3 Cart. 360), where their 
 non-liability is distinctly affirmed. This latter subject is, 
 however, while no doubt a question of constitutional law, 
 so fully treated of by other writers, that it is not 
 deemed advisable to enter upon it here. See Broom's 
 Constitutional Law, p. 521, et seq.; Forsyth's Opinions on 
 Constitutional Law, p. 85 ; and see also the Muskoka Mill 
 Co. v. The Queen, 28 Grant, 563 ; O'Brien v. The Queen, 
 4 S. C. R, 529; re The Massey Manufacturing Co., 13 
 O. A. R. 446 ; and re Bell Telephone Co., 9 O. R. 339.
 
 THE B. X. A. ACT SECS. 64-65. 313 
 
 64. The Constitution of the Execu- i t e ent 
 tive Authority in each of the Provinces of *nayw 
 
 Brunswick (i). 
 
 Nova Scotia and .New Brunswick shall, 
 subject to the provisions of this Act (ii), 
 continue as it exists at the Union until 
 altered under the authority of this Act 
 (Hi), 
 
 (i) The early constitutions of the Maritime Provinces 
 will be found treated of in chapter II., ante. In chapter 
 III. we have pointed out the importance of this section, 
 taken in connection with section 88, as showing that in the 
 Maritime Provinces at least, the old provincial constitutions 
 are continued; the sphere of their authority being, of 
 course, under the B. X. A. Act, limited to a smaller range 
 of matters. See also notes to section 58, ante. 
 
 (ii) " Subject to the provisions of this Act." That is to 
 say. subject to the change in the mode of appointment of 
 the executive head of the province, and subject also to 
 those provisions of the B. N. A. Act, which limit the pro- 
 vincial sphere of authority. These are the only provisions 
 of the Act which in any way limit the full operation of 
 this section, unless perhaps the group of clauses which deal 
 with the division of assets see section 102, et seq, post, 
 may be said to be provision relating to the provincial 
 constitutions. See particularly the notes to the word 
 royalties " in section 109. 
 
 (iii) " Until iilti.'i-cil under the aatli.'n->ff/ of thl* Act."- 
 That is to say, until altered by the provincial legislative 
 assemblies, under section 92, sub-section 1. See notes 
 thereto. 
 
 65- All powers, authorities, and tune- 
 tions which under any Act of the Parlia- 
 
 , 
 
 nient of Great Britain, or of the Parha- 
 nient of the United Kingdom of Great alone(i) - 
 
 Ontario or
 
 314 THE B. N. A. ACT SEC. 65 
 
 Britain and Ireland, or of the Legislature 
 of Upper Canada, Lower Canada, or Can- 
 ada, were or are before or at the Union 
 vested in or exerciseable b.y the respective 
 Governors or Lieutenant-Governors of 
 those Provinces, with the advice, or with 
 the advice and consent, of the respective 
 Executive Councils thereof, or in con- 
 junction with those Councils, or with any 
 number of members thereof, or by those 
 Governors or Lieutenant -Governors in- 
 dividually, shall, as far as the same are 
 capable of being exercised after the Union 
 in relation to the Government of Ontario 
 and Quebec respectively, be vested in and 
 shall or may be exercised by the Lieuten- 
 ant-Governor of Ontario and Quebec 
 respectively, with the advice or with the 
 advice and consent of or in conjunction 
 with the respective Executive Councils, 
 or any members thereof, or by the Lieu- 
 tenant-Governor individually, as the case 
 requires, subject neverthless (except with 
 respect to such as exist under Acts of the 
 Parliament of Great Britain, or of the 
 Parliament of the United Kingdom of 
 Great Britain and Ireland), to be abolished 
 or altered by the respective Legislatures 
 of Ontario and Quebec (ii). 
 
 (i) See notes to section 12. ante. p. 256; and see also chap- 
 ter III., p. 4S, ft seq. The powers here referred to are 
 statutory powers. No such provision is made in reference 
 to Nova Scotia and New Brunswick, nor in the Orders in
 
 THE H. X. A. ACT SEC. f,o. 315 
 
 Council admitting Prince Edward Island and British 
 Columbia to the Dominion. Owing to the division of (Old) 
 Canada into Ontario and Quebec, it was necessary to pro- 
 vide for the exercise of the powers, etc., which had thereto- 
 fore been exercised by the Governor or Lieutenant- 
 Governor of the old provinces; and by section 12, all 
 such powers are vested in the Governor-General, so far 
 as the same are capable of being exercised in relation to 
 the government of Canada, while, by this section, the 
 very same powers, in their entirety, are vested in the 
 Lieutenant-Governors of Ontario and Quebec respectively. 
 The two sections, taken together, effect no division of power 
 but provide simply for the exercise of the same powers in 
 the different spheres of authority created by the B. N. A. 
 Act. In Gibson v. McDonald (d), Mr. Justice O'Connor, 
 referred to a slight difference in the wording of this section, 
 as compared with section 12, the words "as far as the 
 same continue in existence," which appear in the 12th 
 section, being omitted from this 65th section indicating, 
 in his opinion, that some powers continued to exist in 
 relation t> the Dominion, and were vested therein, which 
 did not continue to exist in relation to the provinces. It 
 is difficult to imagine what idea in the mind of the drafts- 
 man led to this difference in phraseology. The governments 
 of the Dominion and of the provinces of Ontario and Quebec 
 wt- re all. in a sense, new creations. The exercise of these 
 powers, etc., in relation to the government of the Dominion 
 cannot be said to be a c" />//'// m't'nm of them, while, in a sense 
 it may be so spoken of in relation to the governments set 
 up by the B. X. A. Act, in Ontario and Quebec. It is 
 impossible to assign any difference in meaning to the two 
 sections, owing to this difference in phraseology Their 
 effect is sufficiently clear, that all these powers, etc., are to 
 be vested in the executive head of the Dominion and of 
 each provincial government, so far as they are capable of 
 
 (/) 7 O. R. 401.
 
 316 THE R N. A. ACT SEC. 65. 
 
 being exercised in relation to those governments resjuc- 
 tively. 
 
 The fact that the B. N. A. Act does effect a clear division 
 of the " sphere of authority," seems not to have been appre- 
 ciated in Regina v. Amer (</</), where Mr. Justice Wilson 
 treats these two sections as vesting' the same power in the 
 Governor-General and a Lieutenant-Governor in reference 
 t<> the. wci'it'.' *al \jnct indite i'. In view of the subsequent 
 discussions which have taken place in reference to the 
 scheme of the B. X. A. Act, the words which we have 
 italicized, would seem to be an incorrect construction of 
 these two sections. 
 
 In Attorney-General for Quebec v. Reed (8 S. C. R. 4(KS, 
 affirmed on appeal, 10 App. Cas. 141 >, it was contended that 
 the Quebec Act, 43 M 44 Vic. c. 9, which imposed a duty, 
 to be paid in stamps, upon every " exhibit " filed in court in 
 any action depending therein, might be supported under 
 C. S. L. C., c. 109, section 32, which gave to the government 
 of (Old) Canada, power to impose by Order in Council such 
 a duty on exhibits. This contention is thus disposed of in 
 the judgment of the Judicial Committee of the Privy 
 Council : 
 
 " With regard to the third argument, which was founded 
 upon the 65th section of the Act, it was one not easy to follow, 
 but their Lordshios are clearly of opinion that it cannot prevail. 
 The Goth section preserves the pre-existing powers of the Gover- 
 nors or Lieutenant-Governors in Council to do certain things 
 not there specified. That however was subject to a power of 
 abolition or alteration by the respective legislatures of Ontario 
 and Quebec, with the exception of course of what depended on 
 Imperial legislation. Whatever powers of that kind existed, the 
 Act with which their Lordships have to deal neither abolishes 
 nor alters them. It does not refer to them in any manner what- 
 ever. It is said that among those powers, there was a power, 
 not taken away, to lay taxes of this very kind upon legal pro- 
 ceedings in the courts, not for the general revenue purpose of the 
 
 (ild) 42 U. C. Q. B. 3111.
 
 THE B. X. A. ACT SEC. 6-5. 317 
 
 province, but for the purpose of forming a special fund called 
 'The Building and Jury Fund," which was appropriated for 
 purposes connected with the administration of justice. What 
 has been done here is quite a different thing. It is not in aid of 
 the Building and Jury Fund. It is a legislative Act, without 
 any reference whatever to those powers ; if they still exist, 
 <}uit3 collateral to them; and, if they still exist, it is capable 
 of being exercised concurrently with them." 
 
 See further as to this case, section 92, sub-section 2. 
 The power of the Lieutenant-Governor to impose, by Order 
 in Council, such tax as was in question in Attorney-General 
 v. Reed, has been entirely abrogated by the limitation of 
 provincial powers of taxation to direct taxation ; a limita- 
 tion which, it is submitted, applies to all the revenue pro- 
 ducing powers of provincial governments. This point is 
 referred to, 'but not decided in Attorney-General v. Reed ; 
 s : -e 10 App. Cas. at p. 145. A reference to the judgment of 
 (! wynne. J., in the Supreme Court see 8 S. C. R., at p. 
 482 will show that, in his view, this limitation does so 
 apply. See, also, the decisions of the Manitoba Courts 
 referred to in the notes to sub-section 2 of section 92,>os. 
 
 In Lenoir v. Ritchie (3 S. C. R. 575) the question of the 
 pow r er of the Nova Scotia Provincial Assembly to author- 
 ize the Lieutenant-Goveriior to appoint Queen's Counsel, 
 ami to assign precedence, as between those Queen's Coun- 
 sel and those appointed by the Dominion Government, was 
 under consideration. Before Confederation, the question 
 was not regulated by any statutory enactment, but the 
 ( Governors and Lieutenant-Govemors of the various prov- 
 inces had been in the habit of exercising the prerogative of 
 the Crown in this regard. After Confederation, the gov- 
 ernment of the Dominion claimed that the Governor- 
 v tf neral. as representative of Her Majesty in Canada, was 
 alone entitled to exercise this prerogative. It was treated 
 as tailing within the class of prerogatives vested in the 
 Crown as the fountain of honour treated so to speak as a 
 prerogative-at-large, not connected with any particular
 
 31 8 THE B. \. A. ACT SEC. 65. 
 
 department of executive government. If this be its proper 
 position, it is hard to see how any colonial officer can exer- 
 cise such prerogative. All the other prerogatives which fall 
 within this category are treated as prerogatives pertaining 
 to matters of Iiii/><-rl<// concern, such as, for instance, the 
 appointment of knights, baronets, etc., etc. If, on the 
 other hand, the prerogative is one connected with the ad- 
 ministration of justice, it would appear that it is one 
 proper to be exercised both by the Governor-General and 
 the Lieutenant-Governors of the various provinces by the 
 former in relation to courts of Dominion creation, by the 
 latter in connection with provincial courts. It is laid down 
 in all the books that members of the Bar are " officers " of 
 the courts, and the assignment of precedence to certain of 
 those members,. would seem to be a matter relating either 
 to the organization of the courts or to procedure therein. 
 In Lenoir v. Ritchie, it was not necessary to the determina- 
 tion of that case to decide whether or not a Lieutenant- 
 Go vernor is entitled to exercise this prerogative the 
 question there involved being as to the precedence given to 
 provincial over Dominion Queen's Counsel. At the same 
 time, some of the judges, both in the Nova Scotia courts and 
 in the Supreme Court of Canada, expressed very decided 
 views against the right of the Lieutenant-Governor to exer- 
 cise the prerogative in any case. The question is now 
 standing for argnni.-nt before the Court of Appeal for 
 Ontario. Subject to the assignment of this prerogative to 
 its proper place in connection with executive government 
 to defining the subject matter within which it properly 
 falls the general principle which must govern in regard t<> 
 all these questions of "prerogative" would now seem to U- 
 authoritatively stated in the judgment of the Privy t'oun- 
 
 kcil in Liquidators of Maritime Bank v. Receiver-General of 
 New Brunswick. See notes to section o.s. ante. 
 
 (ii) " Kubjvcf t<> IK- <il>[ iIit'<l <n- <i/fr,->'</ !/ tin- respective 
 I, >/;l<ttiii-(>s of Ontario n i'iJ Qtichrc." See notes to section 
 12, (ri)te, p. 257: also to section 12!>. i>o*t. The decision
 
 THE B. N. A. ACT SEC. 66. 319 
 
 in Dobie v. Temporalities Board, 7 App. Cas. 13(5, is 
 directly applicable to the interpretation of these two sec- 
 tions, 1 2 and 65. All the various subject matters in respect 
 to which, before Confederation, these "powers, authorities, 
 and functions " could be exercised, are, by the effect of 
 these sections, divided, and, in relation to each division, "// 
 these powers, etc., are vested in the executive head of the 
 Dominion and of each province respectively. But in 
 respect to each division, the Dominion parliament or the 
 provincial legislative assembly may abolish or alter these 
 powers in such fashion, and to such extent, as may lie 
 thought necessary to the proper government of the Domin- 
 ion or the province, as the case may be. The holding in 
 Dobie v. Temporalities Board is thus expressed in the 
 head-note : 
 
 " The powers conferred by the B. N. A. Act, 1807, section 
 129, upon the provincial legislatures of Ontario and Quebec to 
 repeal and alter the statutes of the old parliament of Canada, are 
 precisely co-extensive with the powers of direct legislation, with 
 which those hodies are invested by the other clauses of the Act 
 of 1867." 
 
 See further as to this section, Attorney-General 
 (Canada) v. Attorney-General (Ontario), 20 O. R. 222: 
 affirmed in appeal. 19 O. A. R. 31. 
 
 66- The provisions of this Act refer- oY^slous 
 ring to the Lieu tenant -Governor in Conn- Lle e utTnfut- 
 
 i e i Governor in 
 
 oil shall be construed as referring to the council. 
 Lieutenant- Governor of the Province act- 
 ing by and with the advice of the Execu- 
 tive Council thereof (i). 
 
 (i) Compare section 13, ante, p. 25<S. A reference to 
 section (Jo, suggests that there may possibly be powers 
 vested in the Lieutenant-Governor of a province which he 
 may exercise individually ; that is to say, that his exercise 
 of such powers, even contrary to the advice of the Execu-
 
 320 THE B. X. A. ACT SEC. 66. 
 
 tive Council, would be legally valid. So far as the B. N. A. 
 Act itself is concerned, the only powers which a Lieutenant- 
 Govemor may exercise otherwise than by Order in Council, 
 are : those conferred by section 63, in reference to the ap- 
 pointment of members of the Executive Councils of Ontario 
 and Quebec ; by section 72, in reference to the appointment 
 of Legislative Councillors in Quebec ; by sections 82 and 85, 
 in reference to the summoning and dissolving of the pro- 
 vincial Legislative Assembly ; and by section 90, the giving 
 or withholding of the assent of the Crown to bills passed 
 by the Legislative Assembly. But, with regard to all of 
 these, with the exception of the last named, the " conven- 
 tions of the constitution " which, as we have shown, are as 
 fully operative within Canada, in relation to the various 
 governments here existing, as in relation to the parliament 
 of the United Kingdom, require that all such acts must be 
 done upon the advice of ministers having the confidence of 
 the legislature of the province. As to the appointment 
 of menibers of the Executive Council, the Lieutenant- 
 Governor must ex necessitate, so far as the legal position is 
 concerned, appoint, without advice, the new members upon 
 the defeat and resignation of an entire administration, but 
 even in such cases, the in-coming ministry or Executive 
 Council must accept entire responsibility for the acts of the 
 Lieutenant-Governor in connection with the formation of 
 the new Executive Council. With regard to the giving or 
 withholding of the assent of the Crown to bills passed by the 
 Legislative Assembly of a province, a Lieutenant-Governor 
 acts as a member of the Dominion executive staff, or, at all 
 events, is supposed to be subject to " instructions " from the 
 Governor-General, although, in practice, the supervision of 
 provincial legislation entrusted to the Dominion executive 
 is exercised after the event, by " disallowance, rather than 
 before the event, by "instructions" to withhold the 
 Crown's assent. See notes to section 58, ante, for some 
 further observations as to the position of a Lieutenant- 
 Governor in relation to the federal executive.
 
 THE B. X. A. ACT SEC. 67. 321 
 
 67- The Governor-General in Conn- 
 cil may from time to time appoint an 
 
 . TV, Governor. 
 
 administrator to execute the omce and 
 functions of Lieutenant- Governor during 
 his absence, illness, or other inability (i). 
 
 (i) With this section compare section 14, ante, which 
 (coupled with the Letters Patent) empowers the Governor- 
 General to appoint a Deputy Governor-General. This 
 section, it will be noticed, conveys no such power to a 
 Lieutenant-Governor, and as to him, therefore, the maxim 
 <li'J>-;/<itas nan potest J.elegari applies. We do not over- 
 look the rule of law that a colonial legislature has as full 
 power to alter and mould the lex prerogativa in the colony 
 as has the Imperial parliament in Great Britain ; but, on 
 the other hand, the provisions of section 92, sub-section 1, 
 must not be overlooked. See notes to that sub-section, which 
 expressly prohibits a provincial legislature from amend- 
 ing the provincial constitution " as regards the office of 
 Lieutenant-Governor." 
 
 Reference has already been made to Attorney-Genera! 
 (Can.) v. Attorney-General (Ont.) (e), in which there arosj 
 for discussion the question of the power of a provincial 
 assembly to vest in the Lieutenant-Governor po wers in con - 
 iiection with the Executive government of the province 
 other than those expressly vested in him by section 65 of the 
 B. X. A. Act. See ante, p. 305. The language of the various 
 judges who delivered opinions in that case supports the 
 view that there is the power in a provincial assembly 1< > 
 use the phrase of Boyd, C. to impose upon a Lieutenant- 
 Governor any executive functions " germane to the office." 
 In view of the recent decision of the Privy Council already 
 noted, the legislation impugned in this case would appear 
 to have been, as Mr. Justice Burton considered it, unneces- 
 sary. A somewhat different question is suggested by this 
 
 (e) 20 O. R. 322 ; 19 O. A. R. 31. 
 CAX. CON. 21
 
 322 THE B. X. A. ACT SEC. 67. 
 
 section 67, taken in connection with sub-section 1 of section 
 M2. conferring upon provincial legislatures power to amend 
 the provincial constitution "except as regards the office of 
 Lieuteuant-Governor." 
 
 During the last illness of the late Lieutenant-Governor 
 Campbell, an Order in Council was passed appointing a 
 Deputy Lieutenant-Govemor, and this action on the part of 
 the provincial government gave rise to considerable discus- 
 sion. It is understood that the Attorney-General of 
 Ontario prepared a " state paper " in support of this action 
 of his government, but this we have not seen. A Lieuten- 
 ant-Governor standing as he does in the same relation to 
 the government of a province as the Governor-General does 
 in relation to the government of the Dominion has vested 
 in him the appointment of all subordinate executive < >fficers 
 throughout the province, but we do not see how this could 
 extend to authorize the appointment of a deputy. Under the 
 B. X. A. Act this would seem to be clear, that the executive 
 head the person carrying mi the government of a prov- 
 ince is to be one link in the chain of federal connection 
 1 >etweeii the provinces and the Imperial government, and his 
 tenure of office is (section 5H) during the pleasure of the 
 Governor-General, subject to certain restrictions upon the 
 exercise of the power of removal, already adverted t'-- 
 This would seem to be one of those essentials in connection 
 with the office of a Lieutenant-Governor which a provincial 
 legislature cannot alter, under section 1)2. suit-section 1. 
 By section 62 (ante, p. 310) the provisions of the B. X. A 
 Act relating to a Lieutenant-Govemor apply also to "other 
 the chief executive officer or administrator for the time 
 being carrying on the government of the province, l>;i "7/"'- 
 ever title lie i- </'-x/V///r//W." and the express provision of 
 this section 67 was hardly needed to negative the power of 
 a Lieutenant-Govemor to appoint a deputy to "carry on 
 the government" of the province during the absence, etc.. of 
 the Lientenant-Governor.
 
 ei 
 
 THE B. N. A. ACT SEC. 68. 323 
 
 We have not seen the commission to the Deputy Lieu- 
 tenant-Governor, and it may possibly be that it is nothing 
 more than the appointment of a subordinate officer to per- 
 form certain of the executive functions of the Lieutenant- 
 Go vernor (such, for instance, as to perform the ceremony of 
 opening the session, and others which might be named), and 
 is not in truth the appointment of a deputy in the proper 
 sense of that term. There are, however, some of the duties 
 of a Lieutenant-Govemor which the B. N. A. Act expressly 
 provides are to be performed by him, and any general dele- 
 gation of the duties of his office to a deputy, would seem 
 contrary to both the spirit and the terms of the B. N. A. 
 Act. 
 
 68- Unless and until the Executive 
 Government (i) of any Province otherwise 
 directs with respect to that Province, the 
 seats of Government (ii) of the Provinces 
 shall be as follows, namely, of Ontario, 
 the City of Toronto ; of Quebec, the City 
 of Quebec ; of Nova Scotia, the City of 
 Halifax ; and of New Brunswick, the City 
 of Fredericton. 
 
 (i) " The executive government." This is a somewhat 
 peculiar provision. The idea probably was to provide for 
 a change of the seat of government upon a sudden emer- 
 gency which might not allow of the calling together of the 
 legislature. There is no doubt, however, that this is one 
 of those clauses relating to the provincial constitution 
 which may be altered by the legislature of a province, 
 under section 92, sub-section 1. A provincial assembly, 
 therefore, may, if so minded, take from the executive this 
 power. 
 
 The seats of government of the provinces and territories 
 acquired since Confederation are as follows :
 
 324 THE B. N. A. ACT SEC. 69. 
 
 Of Manitoba, Winnipeg ; of the North West Territories, 
 Regina ; of Prince Edward Island, Charlottetown : and of 
 British Columbia, Victoria. 
 
 , (ii) " The seats of government" See notes to section 
 16, ante, p. 260. 
 
 Legislative Poiver (i). 
 1. ONTARIO. 
 
 ^onurlo. 69- There shall be a Legislature for 
 Ontario consisting of the Lieutenant - 
 Governor (i) and of one House (ii), styled 
 the Legislative Assembly of Ontario. 
 
 (i) "Legislative poiver." The nature of the legislative 
 power which resides in provincial legislative assemblies 
 has been fully discussed in previous pages, and we need 
 here only summarise the position shortly. The limitations 
 upon that power are : First, in respect of the subject mat- 
 ters ; Second, the territorial limitation ; Third, those general 
 and implied limitations (such as the necessary saving of 
 Imperial sovereignty) before referred to. But, as expressed 
 by Lord Selborne in Hodge v. Queen (/), "within //"- 
 I'ni'tts of subjects and area the local legislature is supreme, 
 and has the same authority as the Imperial parliament or 
 the parliament of the Dominion." See chapter IX., "/</'. 
 p. 182. To the cases there collected there should now be 
 added a reference to Liquidators of Maritime Bank v. Re- 
 ceiver-General of New Brunswick (</), in which the above 
 passage is quoted with approval, and the Committee lay it 
 down that " in so far as regards those matters which by 
 section 92 were specially reserved for provincial legislation, 
 the legislature of each province c<>t>t> '/".' 7 to be free from 
 the control of the Dominion, and as supreme as it was 
 before the passing of the Act." See also notes to section 
 58, 
 
 (/) 9 App. Gas. 116. (g) Times L. R. Vol. VIII., p. (577.
 
 THE B. X. A. ACT SEC. 69. 325 
 
 (ii) " TheLievit'iKi itt-Governor." Compare the language 
 of section 17. Owing to the difference in the phraseology 
 employed, it has been contended that the Queen does not 
 form a constituent part of the provincial legislatures, but 
 in the present state of the authorities, this view can hardly 
 be said to be tenable. It is laid down by Chitty, that the 
 Crown has a part in legislation throughout the Empire, and 
 we have already (k) quoted the passage from that writer in 
 which it is laid down, that all executive officers act under 
 commission from, and in due subordination to, the executive 
 head of the Empire. The Lieutenant-Governor acts under 
 Her Majesty's commission in carrying on the government 
 of the province over which he presides, and is as fully Her 
 -Majesty's representative as is the Governor-General in re- 
 ference to the Dominion at large. The assent, therefore, 
 given by the Lieutenant-Governor to Acts of the legislative 
 assembly, is the assent of the Crown. This is distinctly 
 recognized in Theberge v. Landry, where an Act of the 
 Quebec legislature is described by Lord Chancellor Cairns 
 as " an Act which is assented to on the part of the Crown, 
 and to which the Crown therefore is a party." For a 
 further reference to this case see notes to section 41, ante, 
 p. 288. Whether, therefore, Acts of a legislative assembly 
 are promulgated as the Acts of the Lieutenaiit-Governor, 
 by and with the advice and consent, etc., or as the Acts of 
 the Queen, by and with such consent, would seem matter of 
 indifference. Again we are able to quote, from the latest 
 deliverance of the Judicial Committee of the Privy Council, 
 language authoritatively enunciating the views above ex- 
 pressed : 
 
 "It would require very express language, such as is not to 
 be found in the Act of 1867, to warrant the inference that the 
 Imperial legislature meant to vest in the provinces of Canada, 
 the right of exercising supreme legislative powers in which the 
 British Sovereign was to have no share " (t). 
 
 (h) Ante p. 252. 
 
 (() Liquidators, etc. v. Rec.-Gen. of New Brunswick, Times L. R .Vol. 
 VIII., p. 677. This passage immediately precedes that quoted ante, p. 307.
 
 326 THE B. N. A. ACT SEC. 69. 
 
 (iii) " One house." This form of a legislature was the 
 deliberate choice of the Upper Canada representatives in 
 the old parliament of Canada. Lower Canada (now Quebec) 
 chose the bi-cameral form: see section 71, post. Nova 
 Scotia and New Brunswick prior to Confederation had that 
 form, and the constitution of the legislatures in those pro- 
 vinces was continued by the B. N. A. Act see notes to 
 section 88, post. Prince Edward Island was in like position 
 upon its admission in 1873 ! Upon the formation of the 
 province of Manitoba, a second chamber was established, 
 but was afterwards abolished by an Act of the Manitoba 
 legislature, 39 Vic. c. 29, under the powers conferred by 
 section 92, sub-section 1. At the time of its admission to 
 the Union, British Columbia had a legislature somewhat 
 similar to that of Ontario, consisting of one house only. 
 
 It may here be noticed that no section of the B. N. A- 
 Act makes any express provision (such as is made in refer- 
 ence to the Dominion parliament, see notes to section 18, 
 cute, p. 261) as to the " privileges, immunities, and powers " 
 of the provincial legislative assemblies and the members 
 thereof, respectively. In common with all legislative bodies 
 they have certain incidental and inherent powers, -" such 
 .is are necessary to the existence of such a body, and the 
 proper exercise of the functions which it is intended to 
 execute " (j). "Whatever in a reasonable sense is necessary 
 for those purposes, is impliedly granted whenever any such 
 legislative body is established by competent authority ; 
 for these purposes, protective and self-defensive powers 
 only and not punitive are necessary "(/). This question 
 however arises, can they, as law-making bodies, ^ivr 
 themselves, and their members, other and greater powers, 
 etc., than these >. It is submitted that according to the 
 weight of authority they can do so. Indeed, some sanction 
 i- uiven by Kielley v. Carson (a case from Newfoundland), 
 
 (j) Kielley v. Carson, 4 Moo., P. C. 88. 
 
 (k) Barton v. Taylor, 11 App. Cas. at p. 203.
 
 THE B. X. A. ACT SEC. 69. 327 
 
 to the contention that usage in a colony, judicially sanctioned 
 there, might raise a presumption that the power (e.g., of 
 committal for contempt of the colonial assembly) had been, 
 as Forsyth puts it, duly communicated by law, or, as we 
 would prefer to put it, had been recognized as part of the 
 law introduced into the colony upon its settlement. But 
 however that may be (1), the authorities do lay it down 
 although no doubt obiter dicta that the power to make 
 laws for a colony carries witli it the power to make laws as to 
 the privileges and immunities of the law-making body and 
 its members (m). We have already quoted the fifth section 
 of the Colonial Laws Validity Act, 1865, see notes to 
 section 35, ante, p. 280, and have discussed its bearing 
 upon Dominion legislation. It is not, however, necesary 
 to rely upon this Act, so far as concerns the position of the 
 provincial legislative assemblies ; in fact, this section of the 
 Colonial Laws Validity Act, was passed "to remove doubt," and 
 as we have said, the weight of judicial authority was in favour 
 of the view, that colonial legislatures have power to define 
 their own privileges and immunities. The same rule would 
 apply to a provincial legislature. It cannot, it is true, 
 enlarge its sphere of legislative activity, but it can make 
 laws as to how and under what safe-guards it shall do its 
 work within the sphere assigned. Such a law would be 
 " in relation to the classes of matters " coming within section 
 !)2 of the B. X. A. Act, treating those classes as a whole. 
 Moreover, sub-section 1 of section 92, giving provincial 
 assemblies power to amend the provincial constitutions, 
 would seem to be sufficiently wide to embrace legislation 
 
 (1) Only on such ground is Reg. v. Gamble. 9 U. C. Q. B. 54G, support- 
 able. This view is very strongly combatted by Mr. Justice Ramsay, in 
 K.r parte Dansereau, 2 Cart. 165, 19 L. C. Jur. 210. His judgment was 
 overruled by the majority of the Court, but upon the ground that an 
 Act of the Quebec Legislative Assembly which purported to confer powers, 
 etc., other than those annexed by the common law to a legislature, 
 such as that of Quebec, was (contrary to his view) intra rires, sup- 
 porting the view expressed in the text. 
 
 (') See Barton v. Taylor, uli supra, and cases there noted.
 
 328 THE B. N. A. ACT SEC. 70. 
 
 as to the privileges, etc., of the provincial assemblies and 
 the members thereof. Such legislation could in no sense 
 be said to effect an enlargement of their sphere of legisla- 
 tive activity. We do not overlook what was'laid down in 
 Bank of Toronto v. Lam be (n), that provincial legislatures 
 have no inherent or reserved rights of legislation dating 
 from a time anterior to the B. N. A. Act, that by that 
 Act the whole range of colonial legislative power is 
 exhausted ; our argument is based on the language of the 
 B. N. A. Act itself, and on what, we submit, is a reasonable 
 construction of that language. 
 
 The following provincial acts, defining the privileges, 
 etc., of the legislative assemblies in the respective provinces, 
 and of their members, are therefore, it is submitted, rnfi-u 
 vires : 
 
 Ontario. R. S. O. (1887), c. 11, s. 37, et seq. 
 
 Quebec. R. S. Q. (1888), Art. 124, et seq. 
 
 Nova Scotia. R. S. N. S. (1884), c. 3, s. 20, et seq. 
 
 New Brunswick. 33 Vic. c. 33. 
 
 P. E. Island. 26 Vic. c. 15 (1863). 
 
 Manitoba. R. S. M: (1880), c. 5, s. 36, et seq. 
 
 British Columbia, R, S. B. C. (1888), c. 22, s. 76, et wq. 
 The position of the N. W. Territories will be found 
 treated in Part IV., post. 
 
 tetrSi). 70- The Legislative Assembly of 
 
 Ontario shall be composed of eighty-two 
 members, to be elected to represent the 
 eighty-two Electoral Districts set forth in 
 the first Schedule to this Act. 
 
 (i) The representation in the different provincial legisla- 
 tures has from time to time since 1867 been altered, under 
 the power granted to the provincial legislatures by section 
 92, sub-section 1. Owing to the frequent revision of tin- 
 statutes in the various provinces, it is not thought desirable 
 
 (H) 12 App. Cas. 575.
 
 THE B. N. A. ACT SECS. 71, 72. 329 
 
 to encumber this work with a list of the various electoral 
 districts for provincial purposes. So far as Ontario is con- 
 cerned, they will be found set out in R. S. O. c. 7, and sub- 
 sequent amendments. The number of members is now 91. 
 
 2. QUEBEC. 
 
 71. There shall be a Legislature for f L f g,^ 
 Quebec consisting of the Lieutenant- 
 Go vernor and of two Houses (i), styled 
 the Legislative Council of Quebec and the 
 Legislative Assembly of Quebec. 
 
 (i) " Tivo houses." See notes to section 69, where will 
 be found a statement of the position of the various pro- 
 vinces, in regard to this matter. See also the notes to sec- 
 tion 21, ante, p. 268. 
 
 72- The Legislative Council of Que- f Sg!? P 
 bee shall be composed of twenty-four c< 
 members, to be appointed by the Lieu- 
 tenant-Governor in the Queen's name (i), 
 by instrument under the Great Seal of 
 Quebec, one being appointed to represent 
 each of the twenty-four Electoral Divi- 
 sions (ii) of Lower Canada in this Act 
 referred to, and each holding office for 
 the term of his life, unless the Legisla- 
 ture of Quebec otherwise provides under 
 the provisions of this Act (iii). 
 
 (i) " In the Queen's name." See note (ii) to section 69, 
 ante, p. 325. 
 
 (ii) "Each of the twenty-four electoral a v:'i*'t'jnx." See 
 notes to section 22, sub-section 3, ante, p. 272. 
 
 (iii) " Unless the legislature of Quebec otherw i *< jn-<>- 
 ." Up to the present time no change has been made
 
 830 THE B. X. A. ACT SECS. 73-77. 
 
 in the constitution of the legislative council of that pro- 
 vince. 
 
 S u LetiS?tive 73- The qualifications of the Legisla- 
 tive Councillors of Quebec shall be the 
 same as those of the Senators for Quebec 
 
 (i)- 
 (i) See section 23, ante, p. 273. 
 
 SSuaiifica: 74. The place of a Legislative Coun- 
 cillor of Quebec shall become vacant in 
 the cases mutatis mutandis, in which the 
 place of Senator becomes vacant (i). 
 (i) See sections 30 and 31, ante, p. 277. 
 
 vacancies,!,. rj 5 when a vacancy happens in the 
 Legislative Council of Quebec, by resig- 
 nation, death, or otherwise, the Lieuten- 
 ant-Governor, in the Queen's name (ii) 
 by instrument under the Great Seal of 
 Quebec, shall appoint a fit and qualified 
 person to fill the vacancy, 
 (i) See notes to section 32, ante, p. 278. 
 (ii) - /// tltf Queen'* name." See section 72, above, and 
 
 sec also notes to section (59, ante, p. 325. 
 
 tovlcancies, 76- If anj r question arises respecting 
 the qualificatioD of a Legislative Council- 
 lor of Quebec, or a vacancy in the Legis- 
 lative Council of Quebec, the same shall 
 be heard and determined by the Legisla- 
 tive Council (i). 
 (i) See notes to section 33, ante, p. 278. 
 
 ffisutivi 77- The Lieutenant-Governor may 
 
 from time to time, by instrument under
 
 THE B. X. A. ACT SECS. 78-80. 331 
 
 the Great Seal of Quebec, appoint a 
 member of the Legislative Council of 
 Quebec to be Speaker thereof, and may 
 remove him and appoint another in his 
 
 stead (i). 
 
 / 
 (i) See section 34, ante, p. 279. 
 
 78- Until the Legislature of Quebec SKe 
 otherwise provides, the presence of at c 
 least ten members of the Legislative 
 Council, including the Speaker, shall be 
 necessary to constitute a meeting for the 
 exercise of its powers (i). 
 
 (i) See notes to section 35, "///<", p. 280. 
 
 79- Questions arising in the Legisla- LeSsiltfve 
 tive Council of Quebec shall be decided C( 
 
 by a majority of voices, and the Speaker 
 shall in all cases have a vote, and when 
 the voices are equal the decision shall be 
 deemed to be in the negative (i). 
 
 (i) See notes to section 36, mite, p. 281. It will be noted 
 that in the Senate of Canada, and the Legislative Council 
 of Quebec, the Speaker is entitled to vote as an ordinary 
 member, and has no casting vote : while in the House of 
 Commons, and the Legislative Assemblies of the various 
 provinces the Speaker has only a casting vote in case of a 
 tie. See sections 49 and 90. 
 
 80- The Legislative Assembly of g^ffi, 
 Quebec shall be composed of sixty-five Quebe^ 5 
 members, to be elected to represent the 
 sixty-five electoral divisions or districts 
 
 of Lower Canada in this Act referred to, 
 subject to alteration (i) thereof by the
 
 332 THE H. X. A. ACT SEC. 81. 
 
 Legislature of Quebec : Provided that it 
 shall not be lawful (ii) to present to the 
 Lieutenant-Governor of Quebec for assent 
 any bill for altering the limits of any of 
 the Electoral Divisions or Districts men- 
 tioned in the second Schedule to this Act, 
 unless the second and third readings of 
 such bill have been passed in the Legis- 
 lative Assembly with the concurrence of 
 the majority of the members representing 
 all those Electoral Divisions or Districts, 
 and the assent shall not be given to such 
 bill unless an address has been presented 
 by the Legislative Assembly to the Lieu- 
 tenant- Governor stating that it has been 
 so passed. 
 
 (i) "Subject to alteration." See 53 Vic., c. 3 (Quebec), 
 by which the membership of the legislative assembl}* of 
 that province is fixed at 72. 
 
 (ii) " It shall not be lawful, etc." See notes to section 
 22, ante, where the considerations which led to this par- 
 ticular arrangement in the case of Quebec are adverted to. 
 The electoral districts set out in the second schedule, are, 
 < >r were at the date of Confederation, inhabited largely 1 >y 
 protestant English, and are familiarly known as the " east- 
 ern townships." 
 
 3. ONTARIO AND QUEBEC. 
 
 o/ g S on 81. The Legislatures of Ontario and 
 Quebec respectively shall be called to- 
 gether not later than six months after the 
 Union (i). 
 
 (i) This section is now effete. The first sessions of the 
 legislatures of Ontario and Quebec respectively were held
 
 THE B. N. A. ACT SECS. 82, 83. 833 
 
 on the 27th of December, 1867, just in time to comply with 
 the provisions of this section. 
 
 82. The Lieuteiiant-G-overnor of On- I^SVe 
 tario and of Quebec shall from time, to 
 time, in the Queen's name (i), by instru- 
 ment under the Great Seal of the Prov- 
 ince, summon and call together (ii) the 
 Legislative Assembly of the Province. 
 
 (i) " In the Queens name." See note (ii) to section 69, 
 ntc. A clearer indication than this section 82 affords 
 could hardly have been given, that the Lieutenant-Gov- 
 ernor of a province, in his relations to the legislative 
 assembly of such province, represents the Queen. And see 
 also notes to section 90, post. 
 
 (ii) " Summoned and called together." See notes to 
 section 38, ante, p. 283. What is laid down in chapter 
 VIII., as to the exercise, by the Governor-General, of the 
 prerogatives of the Crown in connection with the sum- 
 moning, proroguing, and dissolving of parliament, is equally 
 applicable to the case of the Lieutenant-Governor of a 
 province. See notes to section 58, ante, p. 303. 
 
 83- Until the Legislature of Ontario *fSZt on 
 or of Quebec otherwise provides (i), a per- otBces rs 
 son accepting or holding in Ontario or in 
 Quebec any office, commission, or em- 
 ployment permanent or temporary, at the 
 nomination of the Lieutenant-Governor, 
 to which an annual salary, or any fee, 
 allowance, emolument, or profit of any 
 kind or amount whatever from the Prov- 
 ince is attached, shall not be eligible as 
 a member of the Legislative Assembly of 
 the respective Province, nor shall he sit
 
 334 THE B. X. A. ACT SEC. 83. 
 
 or vote as such; but nothing in this sec- 
 tion shall make ineligible (ii) any person 
 being a member of the Executive Council 
 of the respective Province, or holding 
 any of the following offices, that is to say, 
 the offices of Attorney- General, Secretary 
 and Kegistrar of the Province, Treasurer 
 of the Province, Commissioner of Crown 
 Lands, and Commissioner of Agriculture 
 and Public Works, and in Quebec Solici- 
 tor-General, or shall disqualify him to sit 
 or vote in the House for which he is 
 elected, provided he is elected while hold- 
 ing such office (iii). 
 
 (i) " Until the l<'<jixltn i-< j ofOiilnt'io or of Qwfoec other- 
 wise j >i'r '/<'*." See notes to section 41, ante, p. 285. It 
 is to be noticed that there is no corresponding provision 
 with regard to the Dominion government, except so far as 
 it may In- embodied in section 41. It is difficult, in view of 
 section 84, to see the necessity for this section S3 in the case 
 of these provinces, except, perhaps, in connection with the 
 first elections after Confederation. The matters referred to 
 in the section have V>een the subject of legislation in all the 
 provinces. The law. as to Ontario, will be found in R. S. ().. 
 c. 11, and, as to Quebec, in R. S. Q., articles 136 to 144. 
 
 (ii) "Xolhiinj in thin Ki-rtinri Chilli. in<i/,-< unli<i'il>l, . 
 
 etc" Prior to Confederation, this was the law in the vari- 
 ous provinces, and upon its existence hinges the difference 
 I K 'tween the British constitutional system, and that of the 
 United States: see chapter I., <mte, p. 14, et seq. As to the 
 Dominion, the law in this respect was continued by section 
 41. ante, p. 2s4. and as to Nova Scotia and New Brunswick 
 by sections 64 and SS. See also section 129. Upon the 
 admission of the other portions of British North America
 
 THE B. X. A. ACT SEC'. 84. 335 
 
 care was taken to establish therein the same .system of re- 
 presentative parliamentary government as exists in the 
 United Kingdom, and as existed in the various pre-Confed- 
 eration provinces. See Pail IV., post. 
 
 (iii) " Provided he is elected while holding such ojfice."- 
 This provision is a reminder of the days when " the King's 
 party " was accustomed to recruit its ranks by a lavish dis- 
 tribution of office. It applies even to the acceptance of 
 office by members of a new administration after a general 
 election. See McDonell v. Smith, 17 U. C. Q. B. 310, and 
 Macdonell v. Macdonald, 8 U. C. C. P. 479, which upheld 
 as legal what is popularly known in Canadian history as 
 the " double shuffle " of 1858. 
 
 84- Until the Legislatures of Ontario 
 
 -i /-\ i j i ji election laws. 
 
 and Quebec respectively otherwise pro- 
 vide (i) all laws which at the Union are 
 in force in those Provinces respectively, 
 relative to the following matters, or any 
 of them, namely, the qualification and 
 disqualifications of persons to be elected 
 or to sit or vote as members of the 
 Assembly of Canada, the qualifications or 
 disqualifications of voters (ii), the oaths 
 to be taken by voters, the Eeturning 
 Officers, their powers and duties, the pro- 
 ceedings at elections, the periods during 
 which such elections may be continued, 
 and the trial of controverted elections 
 (iii) and the proceedings incident thereto, 
 the vacating of the seats of members and 
 the issuing and execution of new writs in 
 case of seats vacated otherwise than by 
 dissolution, shall respectively apply to 
 elections of members to serve in the
 
 THE B. N. A. ACT SEC. 8c. 
 
 respective Legislative Assemblies of On- 
 tario and Quebec. 
 
 Provided that until the Legislature of 
 Ontario otherwise provides, at any elec- 
 tion for a member of the Legislative 
 Assembly of Ontario for the District of 
 Algorna, in addition to persons qualified 
 by the law of the Province of Canada to 
 vote, every male British subject, aged 
 twenty-one years or upwards, being a 
 . householder, shall have a vote. 
 
 (i) " Until, etc." See notes to section 41, ante, p. 2>>4. 
 Were it not that the power of the provincial legislatures to 
 deal with the various matters referred to in this section 
 may perhaps depend thereon, it might be said to be effete, 
 as the legislatures of all the provinces have long since 
 otherwise provided. 
 
 (ii) " Voters." See note (ii) to section 41, ante, p. 286. 
 
 (iii) " The trial of controverted elections" See Theberuv 
 v. Landry, referred to in the notes to section 41, ante, p. 288. 
 All that is laid down in the notes to that section, applies, 
 n,nt<iflx niiitinnlis, to the case of the provincial election 
 laws. 
 
 Eegi a siauve f 85- Every Legislative 'Assembly of 
 Ontario and every Legislative Assembly 
 of Quebec shall continue for four years (i) 
 from the day of the return of the writs 
 for choosing the same (subject neverthe- 
 less to either the Legislative Assembly of 
 Ontario or the Legislative Assembly of 
 Quebec being sooner dissolved (ii) by the 
 Lieutenant- Governor of the Province), 
 and no longer.
 
 THE B. X. A. ACT SECS. 86, 87. 337 
 
 (i) " Four years." See notes to section 50, ante, p. 293, 
 where this difference is noted in the position of the Do- 
 minion parliament and the legislatures of the different pro 1 
 vinces, namely, that the former cannot alter the provisions 
 of the B. N. A. Act in regard to this matter, while the latter 
 (under section 92, sub-section 1), can do so. 
 
 (ii) " Sooner dissolved." See notes to section 50, ante, 
 p. 293. and note (ii) to section 82, ante, p. 333. 
 
 86- There shall be a Session of the 5~ r g^ s . 
 Legislature of Ontario and of that of Que- Ia 
 
 bee once at least in every year, so that 
 twelve months shall not intervene between 
 the last sitting of the Legislature in each 
 Province in one Session and its first sit- 
 ting in the next Session. 
 
 (i) " Yearly Session." See notes to section 20, ante, 
 p. 267, and see also chapter VIII., ante, p. 168. What is there 
 laid down as to the duty of the Governor-General to insist 
 upon the observance of the provisions of section 20, is 
 equally applicable to the case of a Lieutenant-Governor 
 under this section. There is no similar provision in the 
 B. X. A. Act as to Nova Scotia and New Brunswick, and, 
 so far as we have been able to find, no such provision exists 
 by law in those provinces. 
 
 As to Manitoba, British Columbia, Prince Edward Island, 
 and the North West Territories, see post. 
 
 87- The following provisions (i) of g^; &c . 
 this Act respecting the House of Commons 
 
 of Canada shall extend and apply to the 
 Legislative Assemblies of Ontario and 
 Quebec, that is to say, the provisions re- 
 lating to the election of a Speaker (ii) 
 originally and on vacancies, the duties of 
 
 CAN. Cox. 22
 
 338 THE 13. X. A. ACT SEC. 88. 
 
 the Speaker (iii), the absence of the 
 Speaker (iv), the quorum and the mode of 
 voting (v), as if those provisions were 
 here re-enacted and made applicable in 
 terms to each such Legislative Assembly. 
 
 (i) " The following provisions." The provisions re- 
 ferred to are contained in sections 44 to 49 (both inclusive). 
 Upon nearly, if not quite, all of these matters, the assemblies 
 of the various provinces have exercised the legislative 
 power given by section 92, sub-section 1. See notes to 
 section 35, ante, p. 280, for some observations as to the 
 powers, in this regard, of the Dominion parliament. 
 
 (ii) " The election of a Speaker." See sections 44 and 
 45. 
 
 (iii) " The duties of <i Speaker." See section 4(5, and 
 the notes thereto, where we have pointed out that the 
 B. N. A. Act contains no further definition of the duties of 
 a Speaker, and where a contrast is drawn between the 
 position of a Speaker in a Canadian legislature. and that 
 of a Speaker under the American system. 
 
 (iv) " Tlir iiIwiK-i' of flic X/rW.vr" See section 47. and 
 notes. 
 
 (v) "The Q-aornni ir! f/tc moilc <>f rfiit<j." See 
 sections 48 and 4!) : with which compare sections 35 
 and 36, relating to the Senate, and sections 7<S and 7!), as 
 to the Legislative Council of Quebec. 
 
 4. NOVA SCOTIA AND NEW BKUNSWICK. 
 ofTeS- ons 88- The constitution of the Legisla- 
 
 tures of Nova , e i c LI ^ XT 
 
 scotia and ture or each or the provinces 01 JNova 
 
 New Bruns- 
 
 wick - Scotia and New Brunswick shall, subject 
 
 to the provisions of this Act (i), continue 
 (ii) as it exists at the Union until altered 
 under the authority of this Act ; and the
 
 THE B. N. A. ACT SEC. 89. 839 
 
 House of Assembly of New Brunswick (iii) 
 existing at the passing of this Act shall, 
 unless sooner dissolved, continue for the 
 period for which it was elected. 
 
 (i) "Subject to tb<' jn-<"'tsions of this Act." That is to 
 say, subject to the limitation of the " sphere of authority " 
 of the legislatures in these provinces under the B. N. A. 
 Act, and subject also to the difference in the mode of 
 appointment of the Lieutenant-Governor. In all other 
 respects, the constitutions of these provinces may be, from 
 time to time, altered by the provincial legislatures, under 
 the terms of section 92, sub-section 1. 
 
 (ii) "Shall continue." See chapter III., <mte, p. 52, et 
 xeq.; also section 64 and notes thereto. 
 
 (iii) The Hoivse of Assembly of New Brunswick." See 
 a ute, p. 52, where the difference in the provisions made for 
 New Brunswick, and for Nova Scotia see section 89 is 
 referred to. 
 
 5. ONTARIO, QUEBEC, AND NOVA 
 
 SCOTIA. 
 
 89- Each of the Lieutenant-Govern- 
 ors of Ontario, Quebec, and Nova Scotia 
 shall cause writs to be issued for the first 
 election of members of the Legislative 
 Assembly thereof in such form and by 
 such person as he thinks fit, and at such 
 time and addressed to such Returning Offi- 
 cer as the Governor- General directs* and 
 so that the first election of member of 
 Assembly for any Electoral District or 
 any subdivision thereof shall be held at 
 the same time and at the same places as 
 the election for a member to serve in the
 
 340 THE B. N. A. ACT SEC. 90. 
 
 House of Commons of Canada for that 
 Electoral District. 
 
 (i) " First elections." This section is now effete. See 
 notes to last section. 
 
 6. THE FOUR PEOYIXCES. 
 
 ^Eegfsik 071 90- The following provisions of this 
 provisions Act respecting the Parliament of Canada, 
 
 respecting . . 
 
 & c OI (f) y votes> name v r > * ne provisions relating to ap- 
 propriation and tax bills, the recommen- 
 dation of money votes, the assent to bills, 
 the disallowance of Acts, and the signifi- 
 cation of pleasure on bills reserved, shall 
 extend and apply to the Legislatures of 
 the several Provinces as if those provi- 
 sions were here re-enacted and made ap- 
 plicable in terms to the respective Pro- 
 vinces and the Legislatures thereof, with 
 the substitution of the Lieutenant-Gov- 
 ernor of the Province for the Governor- 
 General, of the Governor-General for the 
 Queen and for a Secretary of State, of 
 one year (ii) for two years, and of the 
 Province for Canada. 
 
 (i) a The following provisions." In reference to some 
 of the sections of the B. N. A. Act those making provision 
 for the constitution, both legislative an<l executive, of 
 Ontario and Quebec we have spoken of the "necessities t.f 
 the draftsman," as the reason for their introduction. See 
 "///'', p. 40. The insertion of this clause in the Act in its 
 present shape might more properly be said to have l>een 
 caused by the laziness of the draftsman. Applying its pro- 
 visions, literally, certainly makes some of the provisions to
 
 THE B. X. A. ACT SEC. 90. 341 
 
 which it refers read very peculiarly, and affords an argu- 
 ment in support of the view which would belittle the posi- 
 tion of provincial legislatures, and of the Lieutenant- 
 Governors of the provinces. Let us take them in their 
 order : 
 
 (1) " The provisions relating to appropriation andta.r 
 Ita/x." See section 53. This section can only be made to 
 affect those provinces in which a bi-cameral legislature ex- 
 ists. Should any of the provinces which now have one 
 house decide to alter their constitution in this respect, it 
 might perhaps be difficult to say which one of the two 
 houses would answer to the House of Commons, for both 
 houses might possibly be elective. 
 
 (2) " The recommendation of money votes." See section 
 54, ante. What has been said as to section 53 applies with 
 equal force to any attempt to paraphrase section 54. 
 
 (3) " Assent to bills." See section 55. To paraphrase 
 this section in accordance with the literal provisions of 
 section 90, would indicate that, in the view of the f miners 
 of the B. N. A. Act, the Lieutenant-Governor's assent to 
 Acts of a provincial legislature is not the assent of the 
 Queen but of the Governor-General. The case of Theberge 
 v. Landry (o), before the Judicial Committee of the Privy 
 Council, in which it was held that the Lieuteiiant-Gover- 
 nor's assent was the assent of the Crown, has been already 
 referred to ; see also the provisions as to the summoning of 
 the provincial legislature of Ontario and Quebec (section 82, 
 ante, p. 333), and the provisions in reference to the appoint- 
 ment of members of the Legislative Council of Quebec, 
 (section 72, ante, p. 329). As has been frequently pointed 
 out, all executive officers throughout the Empire act under 
 commission direct from the executive head of the Empire, 
 although their appointment may be through the medium 
 of certain other executive officers. The dispute has now 
 been given its quietus by the recent judgment of the 
 
 (o) 2 App. Cas. 102.
 
 THE H. X. A. ACT SEC. 90. 
 
 Judicial Committee of the Privy Council in Liquidators, 
 etc. v. Receiver General of Xew Brunswick, Times L. R., 
 Vol. VIII., p. 677. See the passages quoted in note (v) to 
 section 58, and note (ii) to section 69. 
 
 (4) " Tin- il'ixttUuu'unce of Act*." This matter has been 
 already fully dealt with. In chapter VIII, ante, p. 172, 
 will be found a criticism of Professor Dicey 's statement 
 that the veto power was lodged with the Dominion Govern- 
 ment in order to obviate the necessity for resort to the 
 courts for the determination of these . constitutional ques- 
 tions ; and by reference to the debates upon the Quel tec 
 Resolutions, we endeavoured to point out that the framei-s 
 of those resolutions knew perfectly well what the position 
 of affairs would be, upon the carrying out of the scheme 
 therein contained. The views of judges since Confederate >n, 
 cannot of course be cited against Professor Dicey 's state- 
 ment. We may refer however to Leprohon v. Ottawa (/>), 
 in which the judges of the Court of Appeal for Ontario, 
 laid down without hesitation, that the fact that a pro- 
 vincial law had not been disallowed by the Dominion 
 authorities, could in no way affect the question as t<> its 
 legal validity. Hag-arty, C.J., says : " I do not see how the 
 existence of such power can affect the constitutionality of 
 the enactment ' : and Mr. Justice Burton uses this language : 
 Whether allowed or not, to the extent that provincial 
 Acts transcend the competence of the provincial legislature, 
 they are void." To lefer again to the language of the 
 Chancellor of Ontario, in Attorney-General (Canada) v. 
 Attorney-General (Ontario) (</), the power of disallowance 
 is one which may operate both in the plane of p. lineal 
 expediency, and in that of jural capacity. Its exercise in 
 these days is largely confined to the former. The result is 
 very fairly summed up by Lord Hobhouse, in delivering the 
 
 (p) 2 O. A. R. 522. Sae also Reg. v. Chandler, referred to in the 
 notes to sec. 91, s-3. '21, post. 
 (?) 20 O. R. at p. '245.
 
 THE B. X. A. ACT SEC. 91. 
 
 843 
 
 judgment of the Judicial Committee of the Privy Council, 
 in Bank of Toronto v. Lambe (/) : 
 
 " Their Lordships have to construe the express words of an 
 Act of parliament which makes an elaborate distribution of the 
 whole field of legislative authority between two legislative bodies, 
 and at the same time provides for the confederated provinces a 
 carefully balanced constitution under which no one of the parts 
 can pass laws for itself, except under the control of the whole 
 acting through the Governor-General." 
 
 (5) " The signification of pleasure on bills reserved. "- 
 Si-c section 57 ; also chapter VII, ante, p. 149. 
 
 (ii) " One year." In chapter VII. (ante, p. 149), we 
 have pointed out that upon the expiration of the two years\ 
 allowed by section 56 for the disallowance by the Queen in 
 Council of Dominion legislation, 110 act of Imperial execu- 
 tive authority can thereafter weaken its effect ; that 
 nothing' short of " repugnant " Imperial legislation can 
 override it. The first proposition is equally applicable to the 
 position of the Dominion executive in reference to provin- 
 cial legislation after the expiration of the one year allowed 
 by this section 90 for its disallowance. The second propo- 
 sition lias no application, except in the case of section 95. 
 Upon the expiration of the year, no power short of Imperial 
 legislation can interfere with the operation of a provincial 
 Act, passed in relation to a matter within its legislative 
 competence. The Dominion legislature cannot interfere 
 because the legislative powers of the Dominion and of the 
 provinces are exclusive, each of the other. See chapter X., 
 ante, p. 206. 
 
 VI. DISTRIBUTION OF LEGISLATIVE POWERS (i). 
 Powers of the Parliament (ii). 
 
 91. It shall be lawful for the Queen Sffiyot 
 (iii), by and with the advice and consent " 
 of the Senate (iv) and House of Commons 
 
 ()) 12 App. Cas. at p. 587. 
 
 .
 
 344 THE B. N. A. ACT SEC. 91. 
 
 (v) to make laws for the peace, order, and 
 good government (vi) of Canada, in rela- 
 tion to (vii) all matters not coming (viii) 
 within the classes of subjects by this Act 
 assigned exclusively to the Legislatures 
 of the Provinces ; and for greater cer- 
 tainty (ix) but not so as to restrict the 
 generality of the foregoing terms of this 
 section, it is hereby declared that (not- 
 withstanding anything in this Act) the 
 exclusive (x) Legislative Authority of the 
 Parliament of Canada extends to all mat- 
 ters coming within the classes of subjects 
 next hereinafter enumerated (xi) ; that is 
 to say : 
 
 (i) " Distribution of legislative power*." As a prelim- 
 inary to the study of this and the following section, chap- 
 ters X. and XI. (particularly the former) should be carefully 
 read. In chapter X. we have endeavored to collect from 
 the cases particularly those which have been decided by 
 the Judicial Committee of the Privy Council what has 
 been authoritatively laid down as to the nature of the 
 division effected by the B. N. A. Act, and have noted also 
 certain general rules of construction applicable to the in- 
 terpretation of these two very difficult sections of the Act. 
 
 (ii) "Poivers of tit c parliament" These powers are not 
 exhausted by the various sub-sections. See notes to section 
 41, ante, p. 289, and section 132, po*t. Other sections, too, 
 have been noted in which power has been expressly given 
 to the parliament of Canada (the same is true of the pro- 
 vincial legislatures as well) to alter certain provisions 
 of the B. N. A. Act in reference to the conduct of 
 its business, But, apart altogether from these various 
 sections dealing with special matters, the opening words of
 
 THE B. N. A. ACT SEC. 91. 345 
 
 section 91 clearly assign the unemimerated "residuum" of 
 subject matters, proper to be legislatively treated by a 
 colonial legislature, to the parliament of Canada, and various 
 Acts of the Dominion parliament have been upheld although 
 it was not possible to classify their provisions as falling 
 within any of the various sub-sections of section 91. 
 
 For instance, in Russell v. The Queen (s), the Judicial 
 Committee of the Privy Council upheld the provisions of 
 the Canada Temperance Act upon this ground : 
 
 "If the Act does not fall within any of the classes of subjects 
 in section 92, no further question will remain, for it cannot be 
 contended . . that, if the Act does 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 
 legislative authority to pass it." 
 
 In Citizens v. Parsons (t), the power of the Dominion 
 parliament to incorporate companies with powers extending 
 over the whole Dominion, or over more than one province, 
 was clearly recognized as existing under the general words 
 of this section. The following passage is taken from the 
 judgment of Sir Montague Smith, in delivering the judg- 
 ment of the Privy Council : 
 
 " Taschereau, J., in the course of his vigorous judgment, seeks 
 to place the plaintiff in the action against the Citizens Company 
 in a dilemma. He thinks that the assertion of the right of the 
 province to legislate with regard to the contracts of insurance 
 companies amounts to a denial of the right of the Dominion 
 parliament to do so, and that this is, in effect, to deny the right 
 of that parliament to incorporate the Citizens Company, so that 
 the plaintiff was suing a non-existent defendant. Their Lord- 
 ships cannot think that this dilemma is established. The 
 learned judge assumes that the power of the Dominion govern- 
 ment to incorporate Companies to carry on business iu the 
 Dominion is derived from one of the enumerated classes of subjects, 
 viz., 'the regulation of trade and commerce,' end then argues 
 
 () 7 App. Cas. 829. (t) 1 App. Ca?. 96.
 
 :U() THE H. X. A. ACT SEC. 91. 
 
 that if the authority to incorporate companies is given by this 
 clause, the exclusive power of regulating them must also be 
 given by it, so that the denial of one power involves the denial 
 of the other. But, in the first place, it is not necessary to rest 
 the authority of the Dominion parliament to incorporate com- 
 panies on this specific and enumerated power. The authority 
 would belong to it by its general power over all matters not 
 coming within the classes of subjects assigned exclusively to the 
 legislatures of the provinces ; and the only subject on this head 
 assigned to the provincial legislature being ' the incorporation 
 of companies with provincial objects,' it follows that the incor- 
 poration of companies with objects other than provincial falls 
 within the general powers of the parliament of Canada." 
 
 In Re Briton Medical and General Life Association (/'), 
 it was held that the Dominion Acts which require a deposit 
 with the Minister of Finance by foreign corporations seek- 
 ing to do business within Canada, were iiifi'o >''n'es. 
 
 In Re Wetherell and Jones (r\ the power of the Dominion 
 parliament to pass an Act in reference to the taking of 
 evidence in the various provinces for use before foreign 
 tribunals, was upheld, as coming within the general wi>rds 
 of this section 91. The provincial legislatures, it was held, 
 have no power to pass such Acts, as in their operation. 
 they are of extra-provincial pertinence, and do not relate to 
 the administration of justice, or to property and civil rights 
 in the province. It may be noted, too, that such laws in 
 no way oM'end against the rules which have been laid down 
 as to the territorial limitation upon the legislative po\\vr 
 of a colony. The extra-territorial effect to be given to 
 proceedings taken under such Acts depends upon the la\v 
 of the country in which the evidence is to be used. Mr. 
 Justice Torrance, of the Quebec Superior Court, had arrived 
 at the same conclusion in E>- i><> rtc Smith (w), which came 
 
 (H) 12 O. R. 441. See further, on this subject of the incorporation, 
 etc., of companies, the notes to s. 92, s-s. 10 and 11. 
 (r) 4 0. R. 713. 
 () 1G L. C. Jur. 140; 2 Cart. 330.
 
 THE B. X. A. ACT SEC. 91. 
 
 before him in 1872. He speaks of the Dominion Act in 
 question, as an Act in relation to " a matter of international 
 comity." 
 
 (iii) " The Queen." See notes to sections 9, 58 and 69, 
 ante. 
 
 (iv) " The Senate." See section 21, et seq. 
 . (v) " House of Commons" See section 37, et seq. 
 
 (vi) " The peace, order, and <j<><><! government." This is 
 an expression very frequently used in Imperial Acts creative 
 of colonial constitutions (#), and it also occurs in many of 
 the commissions to the early governors. The same words 
 are used in 34 & 35 Vic., c. 28, giving the Dominion parlia- 
 ment legislative power over the territories. Their very wide 
 scope is thus referred to in Kiel v. Regina (y) by Lord 
 Chancellor Halsbury, in delivering the judgment of the 
 Judicial Committee of the Privy Council : 
 
 " It is not denied that the place in question was one in les- 
 pect of which the parliament of Canada was authorized to make 
 such provision, but it appears to be suggested that any provision 
 differing from the provisions which in this country have been 
 made for administration, peace, order and good government, can- 
 not, as matters of law, be provisions for peace, order and good 
 government in the territories to which the statute relates, and 
 further that, if a court of law should come to the conclusion that 
 a particular enactment was not calculated as matter of fact and 
 policy to secure peace, order and good government, they 
 would be entitled to regard any statute directed to those objects, 
 but which the court should think likely to fail of that effect, as 
 ultra rirea, and beyond the competency of the Dominion parlia- 
 ment to enact. Their Lordships are of opinion that there is not 
 the least colour for such a contention. The words of the statute 
 are apt to authorize the utmost discretion of enactment for the 
 attainment of the objects pointed to. They are words under 
 which the widest departure from criminal procedure as it is 
 known and practised in this country, have been authorized in Her 
 Majesty's Indian Empire. Forms of procedure unknown to the 
 
 :.r) See note (t) p. 54, ante. (y) 10 App. Gas. 675.
 
 348 THE B. N. A. ACT SEC. 01. 
 
 English common law have there bsen established and acted upon, 
 and to throw the least doubt upon the validity of powers con- 
 veyed by these words would be of widely mischievous conse- 
 quence." 
 
 (vii) "Laws in relation to." See ' chapter IX.. ante, 
 p. 194, note (c\ where reference is made to the wording of 
 the Constitution of the United States in those sections of 
 it which confer legislative power upon Congress. As is 
 there pointed out, the words of our statute are, if compari- 
 son be in order, wider than the words of the American 
 ".Constitution," and the various American authorities sup- 
 porting the doctrine of "implied cowers" may, therefore, 
 appear applicable, a fortiori, to the powers of Canadian 
 legislatures. 
 
 In Bennett v. Pharmaceutical Association of Quebec (z\ 
 Dorion, C.J., lays it down : 
 
 " We consider, as a proper rule of interpretation in all these 
 cases, that when a power is given, either to the Dominion or to 
 the provincial legislatures, to legislate on certain subject-? coming 
 clearly within the class of subjects which either legislature has 
 a right to deal with, such power includes all the incidental sub- 
 jects of legislation which are necessary to carry on the object 
 which the B. N. A. Act declared should be carried on by that 
 legislature." 
 
 The application, however, of this doctrine brings us face 
 to face with the question as to the existence of "conciuvent 
 powers" and, in every case, calls for a careful consideration of 
 th- ise rules of interpretation (laid down by the Judicial Com- 
 mittee of the Privy Council in Russell v. Reg. (a] and Bank 
 of Toronto v. Lam be (6)), which we have already discussed 
 in chapter- X. see <ti)tf, pp. 212, 213, cf *<']. In truth, as 
 a distinct, independent rule of i nf- i-jtrcfufion. this doctrine 
 of " implied powers " is scarcely applicable to a federal 
 systt-m such as ours. It is really nothing more than a 
 
 (*) 1 Dor. 336; 2 Cart. 250. Se3 also notes to section 91. sub-section 
 2, and section 92, sub-section 16. 
 
 (ti) 7 App. Cas 82X >!>) J2 App. Cas. 575.
 
 THE 15. X. A. ACT SEC. 91. 349 
 
 short form of expression embodying the doctrine of the 
 supremacy of the legislature (c) in relation to those matters 
 which, upon a reasonable and proper interpretation, can 
 fairly be said to fall within one of the classes of subjects 
 committed to such legislature ; but, as will bs at once per- 
 ceived, this still leaves the question open for the application 
 of those other rules rules of interpretation proper appli- 
 cable for the reconciliation of apparent!}' conflicting sub- 
 sections of sections 91 and 92. Legislative jurisdiction 
 must first be conceded before the doctrine of "implied 
 powers " can apply. A reference to the various cases, in 
 which this doctrine has teen applied in terms will, we think, 
 disclose that as a preliminary to its application, jurisdiction 
 over the subject matter in dispute was determined. It is 
 noteworthy that the Judicial Committee of the Privy 
 Council have never used the phrase " implied powers," pre- 
 ferring the other form " plenary powers." Gushing v. 
 Dupuy (<7) in reference to the scope of " bankruptcy and 
 insolvency " legislation, is frequently referred to as illustra- 
 tive of the application of this doctrine of " implied powers," 
 but a perusal of the judgment of the Committee in that 
 case discloses that no such doctrine is referred to, the point 
 decided being that procedure is an essential part of insol- 
 vency legislation a decision as to the scope of certain 
 words in the B. N. A. Act, not as to the nature of the legis- 
 lative power of the Dominion parliament. 
 
 (viii) "Not coining within." See note (ii) to this 
 section. 
 
 (ix) "For greater cerfa i nt;/." See the passage, from 
 the judgment in Citizens v. Parsons, quoted ante, p. 207, 
 et *?</., with which may be compared the language of the 
 judges of the Supreme Court of Canada in the same case (e) 
 and in City of Fredericton v. Keg. (/). 
 
 (c} See ante, p. 177, et seq., 194, et seq. (e) 4 S. C. B. 215. 
 
 (d) 5 App. Gas. 409. ff) 3 S. C. E. -505.
 
 350 THE B. X. A. ACT. SEC. 91. 
 
 (x) "E.>-<-l n xi *<'." It is now settled beyond controversv 
 that this word refers to the extent to which the legislative 
 power of the Dominion parliament may be exercised to the 
 exclusion of legislation by the provincial assemblies, and 
 was in no way intended as a limitation upon the supreme 
 legislative authority of the Imperial parliament. We have 
 already referred to this question in chapter IV. see <n't<'. 
 p. 67 and need here merely add a reference to some other 
 Canadian cases in which the legislative supremacy of the 
 Imperial parliament has in view of this phrase in the 
 B. N. A. Act been questioned. 
 
 In the case of " The Farewell ) * w (see notes to sub-section 
 10 of section 91, post), Mr. Justice Stuart, of the Quebec 
 Vice- Admiralty Court, distinctly recognizes the continued 
 supremacy of the Imperial parliament. He held that upon 
 the proper construction of the Colonial Laws Validity Act, 
 1865, effect should be given to an Act of the parliament of 
 of Canada, even though in part repugnant to an Imperial 
 statute, so far as its provisions do not conflict with those of 
 such Imperial enactment (</). 
 
 See also the case of Holmes v. Temple (A), referred to 
 more fully in the notes to section 91, sub-section 7, j><>*t. 
 and we may also note upon this question as to the continued 
 supremacy of the Imperial parliament, since the B. N. A. 
 Act, the language of Ritchie, C.J., in delivering the judg- 
 ment of the majority of the New Brunswick Supreme 
 Court, in e;<; parte Renaud (/), a case which will be found 
 more fully discussed in the notes to section 93, /><>*{. 
 
 (xi) " The classe* of *nhj<><-fx next hereinafter enumer- 
 ated." In chapter X. see ante, p. 211 will be found 
 quoted the language of the Judicial Committee of the Privy 
 Council in L'Union St. Jacques v. Belisle (//), in which that 
 tribunal lays down that, in this section 91, "there is no in- 
 to) 2 Cart. 378; 7 Q. L. R. 380. (/) 2 Cart, 445 ; 1 Pug. 273. 
 
 (h) 2 Cart, 396; 8 Q. L. R. 351. (ii) L. R. 6 P. C. 31.
 
 THE I?. X. A. ACT SEC. 91. 351 
 
 dication /'// "/<// int<i ,,<<; of anything being* contemplated 
 except what may be properly described as general legisla- 
 tion." We there ventured to say that just how far this rule 
 can be or should be applied in determining the scope of each 
 and every one of the various sub-sections of this section 91, 
 is matter of doubt. Before venturing anything further 
 upon this question, we shall refer to certain other cases in 
 which the general scope of the various sub-sections of sec- 
 tion 91 has been discussed. 
 
 In Regina v. Mohr (j), the late Chief Justice Dorion in- 
 timated that, in his opinion, section 91 deals with subjects 
 which from their nature affect the interests of the whole 
 Dominion, and that all matters of a local nature, affecting 
 but one of the provinces, or a portion of a province, are 
 within the control of the legislature of the province affected 
 thereby, unless excepted from this general rule by a special 
 enactment, such for instance as sub-section 29 of section 91. 
 and the exceptions particularly mentioned in section 92, 
 sub-section 10. 
 
 . In Angei-s v. City of Montreal (k), Mr. Justice Johnson 
 n-tVrs to the words c of Canada " as indicating the intention 
 of the Imperial parliament, that legislation by the Dominion 
 parliament should be legislation for the yen (-rot purpose* of 1 
 ///' Doni in ion. Reference may also be had to the cases \ 
 collected in the notes to section 91, sub-sections 10 and 12. 
 See particularly Central Vermont Railway Co. v. St. 
 John's, and The Queen v. Robertson. In the notes to sec- 
 tion 91, sub-section 2, will be found quotations from 
 Citizens v. Parsons, ani Bank of Toronto v. Lambe, in 
 which the Judicial Committee of the Privy Council have 
 intimated their view, that " the regulation of trade and 
 commerce," has reference only to general legislation 
 " political arrangements in regard to trade, requiring the 
 sanction of parliament ; regulations of trade in matters of 
 
 (j) 2 Cart. -257 ; 7 Q. L. R. 183. 
 (k) 2 Cart. 335; 24 L. C. Jtir. 259.
 
 352 THE B. N. A. ACT SEC. 91. 
 
 interprovinc'al C3iicern, and it may be that they would in- 
 clude genera! regulations of trade, (iffectiny tJte ivkole Do- 
 minion. In Citizens v. Parsons, the Committee referred to 
 the collocation of sub-section 2 with "subjects of national and 
 general concern," but there is nothing to indicate whether 
 this was intended as a reference to all the sub-sections of 
 section 91 or merely to those immediately preceding and 
 following sub-section 2. In a recent case before the 
 Supreme Court of Canada, involving the consideration of 
 sub-section 19, of section 91, " interest," Mr. Justice Patter- 
 son refers to its collocation with sub-sections numbered 
 from 14 to 21, both inclusive, "all of which relate to the 
 regulation of the general commercial and financial system 
 of the country." 
 
 Taking the language of the Judicial Committee of the 
 Privy Council in L'Union St. Jacques v. Belisle (I) literally 
 it would entirely preclude the Dominion parliament from 
 what is known as " private bills " legislation ; but against 
 such a construction, the later case of Colonial Building 
 Association v. Attorney-General of Quebec (m), in which 
 an Act of the Dominion parliament incorporating the ap- 
 pellant company was upheld, must not be over-looked. The 
 power of the Dominion parliament to pass Acts for the in- 
 corporation of companies with objects other than provincial 
 was in Citizens v. Parsons put expressly upon the general 
 words of the opening clause of this section 91, and it may 
 be contended, therefore, that the private bills legislation of 
 the Dominion parliament must be limited to this residuary 
 clause, as it has been termed, of section 91. In thisconnec- 
 < tion, however, we must not overlook the concluding clause 
 i of section 91, which expressly provides that any matter 
 coming within any of the sub-sections of section 91, is not 
 to be deemed to come within section 92, sub-section l(i. 
 " matters of a merely local or private nature in the pro- 
 vince "; a provision which would seem to indicate that in 
 
 (I) L. K. 6 P. C. 31. (m) 9 App. Cas. 157.
 
 THE B. X. A. ACT SEC. 91. 353 
 
 the opinion of the Imperial parliament, matters for legisla- 
 tive action would come before the Dominion parliament, 
 which upon their face, so to speak, might appear to be of a 
 merely local or private nature in one province. Again, too, 
 we must notice the exceptions to section 92, sub-section 10. 
 The works and undertakings there referred to, which, by 
 force of the exception read in connection with section 91, 
 sub-section 29, are without doubt within the legislative 
 competence of the Dominion parliament, are matters in 
 respect of which it is difficult to imagine any general legis- 
 latii ni capable of application to all alike. They are subjects 
 which naturally call for what is known as private bills 
 legislation. 
 
 "With reference to the incorporation of companies, and 
 Acts respecting works and undertakings within the 
 legislative ken of the Dominion parliament, the question 
 lias arisen how far the Dominion parliament can confer upon 
 such corporations immunity from provincial law. See par- 
 ticularly the cases collected in the notes to sub-section 13 
 of section 92, post. In Citizens v. Parsons (n\, the Committee 
 distinctly held that an insurance company, incorporated 
 under Dominion legislation, is subject, as to the contracts 
 of insurance entered into by it, to the laws of the province 
 in relation to such contracts generally, as being a matter of 
 property and civil rights in the province. By way of illus- 
 tration obiter, the question of the applicability of the 
 statutes of Mortmain to such a company was touched upon, 
 and the view expressed that a company incorporated under 
 Dominion legislation would be subject to the law of the 
 province in this regard. In Colonial Building Association 
 v. Attorney-General of Quebec (o), this view was again dis- 
 tinctly enunciated. Carrying these decisions to their logical 
 conclusion, it would appear that the Dominion parliament 
 cannot confer, upon any body incorporated by it, any gower 
 in relation to matte re falling within the legislative cbm- 
 
 () 7 App. Cas. 96. (o) 9 App. Gas. 157. 
 
 CAN. Cox. 23
 
 354 THE B. N. A. ACT SEC. 91. 
 
 petence of a provincial legislature cannot confer, in other 
 words, any power which it could not itself directly exercise. 
 There is nothing in any of the other judgments of that 
 tribunal to throw doubt upon this as being a correct enunci- 
 ation of the law in regard to this very perplexing matter. 
 A precisely similar question arises in connection with the 
 subject of " municipal institutions" and will be found dis- 
 cussed in the notes to sub-section 8 of section 92. 
 
 The subject of special legislation has been lately 
 brought again to the front by the judgment of the 
 Supreme Court of Canada in a case ( p] which arose out of 
 the winding up of the defunct Bank of Upper Canada. 
 Piior to Confederation the bank had become insolvent 
 and had assigned all its property and assets to trustees. 
 By 31 Vic. c. 17, the Dominion parliament incorporated 
 the trustees and gave them authority to carry on the 
 business of the bank so far as was necessary for winding 
 up the same. By 33 Vic. c. 40, all the property of 
 the bank vested in the trustees was transferred to the 
 Dominion government, who became thereby seised of all 
 the powers of the trustees. In the Court of Appeal for 
 Ontario, the court was equally divided as to the validity 
 of this Dominion legislation. Hagarty, C.J.O., and Osier, 
 J.A., upheld the Acts as being within the legislative power 
 of the Dominion parliament over "banking, the incorpora- 
 tion of banks," and also over "bankruptcy and insolvency"; 
 while Burton and Maclennan, JJ.A., held that the Acts 
 were in relation to " property and civil rights in the pro- 
 vince," and could only have been validly passed by a 
 provincial legislature. In the Supreme Court the judgment 
 was unanimous, upholding the validity of the impugned 
 Acts. Ritchie, C. J., held that the legislative authority >f 
 parliament over banking and the incorporation of banks, 
 and over bankruptcy and insolvency, empowered it to puss 
 
 (p) Quirt v. Reg., 19 S. C. R. 510, affirming 17 O. A. R. 421 (Reg. v. 
 Wellington).
 
 THE B. N. A. ACT SEC. 91, S.-S. 1. 355 
 
 such Acts, while of the other members of the court, Strong 
 ;ui(l Patterson, JJ., founded their judgment upon the latter 
 power only, the three other judges not intimating the 
 ground of their concurrence. 
 
 This legislation was undoubtedly private bills legislation 
 and the judgment of the Supreme Court must be taken as 
 conclusive upon all Canadian courts, that the power of the 
 Dominion parliament under the various sub-sections of sec- 
 tion 91 does extend to private bills legislation so long as 
 the subject matter legislated upon can be fairly said to fall 
 within any of those sub-sections. There is one of the sub- 
 sections of this section 91 which upon its face would seem 
 to indicate that it was intended to confer power to pass 
 private and special Acts, namely, sub-section 7, referring 
 to "Sable Island." No argument, however, can be founded 
 upon this sub-section, as it must evidently be read in con- 
 nection with sub-section 10, and, in fact, the only legislation 
 in reference to it is in connection with light-houses and 
 other safeguards to navigation. See R. S. C. (1886), c. 70. 
 
 It is hardly necessary to say that in considering this 
 question those other rules of interpretation which have 
 been laid down as applicable for the reconciliation of appar- 
 ently conflicting powers, must not be lost sight of ; but the 
 question now being discussed has reference, rather, to the 
 possibility of laying down a general rule of construction 
 applicable to section 91 and its various sub-sections, irre- 
 spective, in a sense, of section 92 and its sub-sections. We 
 shall have occasion to again touch upon certain aspects of 
 this question, but we may say that we make no pretence 
 to an exhaustive treatment of it, and any views we may 
 venture upon moot points are advanced with much mistrust. 
 
 1. The Public Debt and Property. 
 
 This has reference, of course, to the public debt of the 
 Dominion, as a unit, assumed upon Confederation or since 
 incurred, and to the public property held by the Dominion 
 Government in trust for Canada as a whole.
 
 356 THE B. X. A. ACT SEC. 91, S.-8. 2. 
 
 In section 102, post, and the following sections, will l>e 
 found the provisions of this Act as to the division of assets, 
 and the distribution of revenue producing powers between 
 the Dominion and the provinces, and any extended reference 
 to this question will be more in order when we come to con- 
 sider those provisions of the Act. We may say, however, 
 in reference to the legislative power of the Dominion ami 
 the provinces over their respective property, and in connec- 
 tion with their revenue producing powers, that the absence 
 of any provision in the various sub-sections of section 92, 
 similar to the provision made by this sub-section 1 of sec- 
 tion 91, does not in any way afford an argument against 
 the full legislative authority of a provincial legislature in 
 reference to provincial assets. The B. N. A. Act simply 
 affects a division of the beneficial interest in the various 
 provincial assets as they existed at the time of Confedera- 
 tion, but, in reference to the revenue therefrom, cannot be 
 deemed to weaken in any way the effect of the Imperial 
 Act, 17 & 18 Vic. c. 118, and the other Imperial Acts, 
 giving Canadian legislatures full power of appropriation 
 over all revenues from whatever source within the colony 
 arising. See notes to section 126. 
 
 2. The regulation of Trade and Com- 
 merce. 
 
 In the leading case of Citizens v. Parsons, the meaning 
 proper to be attributed to the language of this sub-section 
 w.-is discussed. In that case, the Act impugned was the 
 Ontario Act providing for uniform conditions in fire insur- 
 ance contracts. Without deciding whether or not fire 
 insurance is a trade, the Judicial Committee of the Privy 
 Council decided 'that this sub-section does not extend to 
 the regulation of the contracts of a particular business or 
 trade in a single province. What, in the view of their 
 Lordships, may properly be held to come within this sub- 
 section will be best shown by the. following extract from 
 the judgment in that case (q) : 
 
 (q) 7 App. Cas. 96.
 
 THE B. X. A. ACT SEC. 91, S.-S. 2. 357 
 
 " The words ' regulation of trade and commerce ' in their 
 unlimited sense are sufficiently wide, if uncontrolled by the 
 context and other parts of the Act, to include every regulation 
 of trade, ranging from political arrangements in regard to 
 trade with foreign governments, requiring the sanction of 
 parliament, down to minute rules for regulating particular 
 trades. But a consideration of the Act shows that the words 
 are not used in this unlimited sense. In the first place the 
 collocation of No. 2 with classes of subjects of national and 
 general concern, affords an indication that regulations relating 
 to general trade and commerce were in the mind of the legis- 
 lature, when conferring this power on the Dominion parlia- 
 ment. If the words had been intended to have the full scope 
 of which, in their literal meaning, they are susceptible, the 
 specific mention of several of the other classes of subjects 
 enumerated in section 91, would have been unnecessary ; as, 15, 
 banking ; 17, weights and measures ; 18, bills of exchange and 
 promissory notes ; 19, interest, and even 21, bankruptcy and 
 insolvency. 
 
 " ' Regulation of trade and commerce ' may have been used 
 in some such sense as the words ' regulations of trade,' in the 
 Act of Union between England and Scotland (6 Ann., c. 11), 
 and as these words have been used in Acts of State relating to 
 trade and commerce. Article V. of the Act of Union enacted, 
 that all the subjects of the United Kingdom should have ' full 
 freedom and intercourse of trade and navigation ' to and from 
 all places in the United Kingdom and the colonies ; and Article 
 VI. enacted, that all parts of the United Kingdom, from and after 
 the Union, should be under the same ' prohibitions, restrictions, 
 and regulations of trade.' Parliament has at various times since 
 the Union passed laws affecting and regulating specific trades in 
 one part of the United Kingdom only, without it being supposed 
 that it thereby infringed the Articles of Union. Thus, the Acts 
 for regulating the sale of intoxicating liquors notoriously vary in 
 the two kingdoms. So with regard to Acts relating to bank- 
 ruptcy, arid various other matters. 
 
 "Construing, therefore, the words 'regulation of trade and 
 commerce ' by the various aids to their interpretation above 
 suggested, they would include political arrangements in regard
 
 358 THE B. N. A. ACT SEC. 91, S.-S. 2. 
 
 to trade requiring the sanction of parliament, regulations of 
 trade in matters of inter-provincial concern, and it may be that 
 they would include general regulations of trade afectin<i t)ie trhoie 
 Dominion. Their Lordships abstain on the present occasion from 
 any attempt to define the limits of the authority of the Dominion 
 parliament in this direction. It is enough for the decision of 
 the present case to say that, in their view, its authority to legis- 
 late for the regulation of trade and commerce does not compre- 
 hend the power to regulate by legislation the contract of a 
 particular business or trade, such as the business of fire insur- 
 ance, in a single province, and, therefore, that its legislative 
 authority does not in the present case conflict or compete with 
 the power over property and civil rights assigned to the legisla- 
 ture of Ontario by No. 13 of section 92." 
 
 In Russell v. The Queen, in the same volume (r), involv- 
 ing the validity of the Canada Temperance Act, 1878, Sir 
 Montague E. Smith, in delivering the judgment of the 
 Judicial Committee of the Privy Council, intimated that 
 their Lordships 
 
 " Must not be understood as intimating any dissent from the 
 opinion of the Chief Justice of the Supreme Court of Canada and 
 the other judges who held that the Act as a general regulation of 
 the traffic in intoxicating liquors throughout the Dominion, fell 
 within the class of subjects, ' the regulation of trade and com- 
 merce ' enumerated in that section, and was on that ground a 
 valid exercise of the legislative power of the parliament of 
 Canada." 
 
 As has been already noted (*), the judgment of the 
 Privy Council proceeds upon the ground that the subject 
 was one not falling within any of the sub-sections of sec- 
 tion 92, and was therefore within the power of the 
 Dominion parliament as a matter pertaining to " the peace, 
 order, and good government of Canada," but in Hodgr v. 
 The Queen, involving the question of the validity of the 
 Ontario Liquor License Act, 1877, the earlier decision is 
 discussed and again put clearly upon the opening language 
 
 (r) 7 App. Cas. 829. (.-,) Ante, p. 345.
 
 THE B. X. A. ACT SEC. 91, S.-S. 2. 359 
 
 of section 91. The Liquor License Act was held not to be 
 an interference with the general regulation of trade and 
 commerce, which belongs to the Dominion parliament, and 
 it was also held not to conflict with the Canada Temper- 
 ance Act, which had not been locally adopted. 
 
 This is perhaps the proper place to notice the various 
 eases which have arisen in reference to the liquor traffic, 
 for the attacks which have from time to time been made 
 iip Hi pro vincial legislation in connection with this subject 
 have practically ranged themselves under this sub-section. 
 At this date, however, there is only one matter which is 
 open to argument, the power, namely, of a provincial legis- 
 lature to pass a prohibitory law for the province. 
 
 ( )wing to the emphatic pronouncement of the Privy 
 Council in Hodge v. The Queen (t), in support of the 
 power of provincial legislatures to reyuhite the sale of 
 intoxicating liquor, and to their equally emphatic affirm- 
 ance of the invalidity of the Dominion Liquor License Act, 
 1 ^ v> (11). it will not be necessary to discuss at any length 
 the earlier decisions in the various provinces. 
 
 In Ontario, the power of a provincial legislature to 
 empower a municipality to limit the number of tavern 
 licenses, and to entirely prohibit the sale of liquor in places 
 other than houses of public entertainment, was affirmed 
 (1875) by the Court of Queen's Bench in Slaviii v. Orillia 
 and the decision in this case may be said to embody 
 the law upon this point as judicially recognized in the 
 courts of that province until Hodge v. The Queen became 
 the leading case. Such power was held not to infringe 
 upon the tiekl allotted to the Dominion parliament by the 
 term " the regulation of trade and commerce," but to fall 
 properly within the field covered by "municipal institu- 
 tions and ' property and civil rights in the province." As 
 
 (t) 9 App. Cas. 117. (u) Cassels, Sup. Ct. Dig. 543. 
 
 (v) 1 Cart. 688 ; 36 U. C. Q. B. 159.
 
 360 THE B. X. A. ACT SEC. 91, S.-S. '2. 
 
 to this last point which sub-section of section 92 supports 
 such legislation ? we shall have to speak later. 
 
 The question came before the Supreme Court of the 
 province of New Brunswick, in 1875, in Reg. v. The 
 Justices of King's (w), and although the decision of the 
 court was against the validity of the statute there impugned 
 (36 Vic. c. 10), it was upon the ground that the Act was 
 prohibitory in its character, allowing, as it did, a majority of 
 the ratepayers in a municipality to entirely prevent the 
 issue of any licenses for the sale of intoxicating liquor 
 within such municipality. Power to make regulations for 
 the good government of saloons, taverns, etc., such as 
 would tend to the preservation of good order in the 
 locality " matters of municipal police, and not of com- 
 merce " was conceded by Chief Justice Ritchie to pro- 
 vincial legislatures, but " if , outside of this, and beyond 
 the granting of the licenses referred to in order to raise 
 a revenue for the purposes mentioned, the legislature 
 undertakes directly or indirectly to prohibit the manu- 
 facture or sale, or limit the use of an;/ urtli'lf <~>f tr<nl<' 
 [or commerce, whether it be spirituous liquors, flour, or 
 jother articles of merchandize, so as actually and absolutely 
 
 interfere with the traffic in such articles, and thereby 
 )revent trade and commerce being carried on with respect 
 Ito them . . they assume to exercise a legislative power 
 rhich pertains exclusively to the parliament of Canada." 
 ^his represented the law of that province, as recognized 
 at least until Hodge v. Reg. In fact, it is still a question 
 about which opinions conflict, whether a local legislature 
 can empower a majority of the ratepayers of a municipality 
 to absolutely prevent the issue of ci.nij licenses to sell 
 intoxicating liquor therein. As we shall see, the judgment 
 of the Supreme Court in Danaher v. Peters (x), does not u<> 
 the full length of upholding such a provincial enactment. 
 
 In Nova Scotia, the question was pronounced upon by 
 the Supreme Court of that province, in 1877, in Keefe v. 
 
 (:) 2 Cart. 499 ; 2 Pug. 535. (x) 17 B. C. R. 44.
 
 THE B. X. A. ACT SEC. 91, S.-S. 2. 361 
 
 McLennan (y), and it was broadly held that a provincial 
 legislature " is entitled to legislate with a view to regulate 
 within the province the sale of whatever may injuriously 
 affect the lives, health, morals, or well-being of the com- 
 munity, whether it be intoxicating liquors, poisons, or un- 
 wholesome provisions, if such legislation is made bona fide 
 with that object alone, even though to a certain limited 
 extent it should affect trade and commerce." 
 
 In Quebec, the question did not come squarely before 
 any appellate court until very shortly before the decision 
 in Hodge v. The Queen (0) was pronounced by the Judicial 
 Committee of the Privy Council. The Canada Temperance 
 Act of 1864 was in force in many of the counties of that 
 province, and the earlier decisions in connection with this 
 subject dealt, rather, with the question as to the position 
 of that Act after Confederation. 
 
 In Hart v. Mississquoi (a), however, Mr. Justice Caron 
 held that a provincial legislature cannot repeal or modify 
 those sections of the Canada Temperance Act, 1864 (the 
 Duaikin Act), which conferred on municipal councils the 
 power to pass by-laws for prohibiting the sale of intoxica- 
 ting liquors. The ground upon which this decision is put, 
 namely, that such legislation would conflict with the powers 
 of the Dominion government under this sub-section 2, is the 
 debatable ground to-day. See this question also discussed 
 in Re Local Option Act (6), in the Court of Appeal for 
 Ontario. To the same effect is the decision of Mr. Justice 
 Dunkin, in Cooey v. Brome (c), in which, after reviewing 
 municipal legislation prior to 1867, he refers to section 129 
 of the B. N. A. Act as leaving the law as it then existed, 
 subject to repeal or amendment by that legislature, which 
 if the law were non-existent, would now have authority 
 to enact it. He considered that the Dunkin Act in its 
 
 (//) 2 Cart. 400 ; 2 Kuss. & Ches. 5. (!>) 18 O. A. K. 572 ; see post. 
 
 (z) 9 App. Cas. 117. (c) 2 Cart. 385 ; 21 L. C. JUT. 182. 
 
 (a) 2 Cart. 3g2 ; 3 Q. L. R. 170.
 
 362 THE B. X. A. ACT SEC. 91, S.-S. 2. 
 
 general scope and effect was an Act respecting trade and 
 commerce and that, therefore, none of its provisions could 
 be altered by provincial legislation. Noel v. Richmond, 
 (1 Dor. 333; 2 Cart. 246) deals only with the question 
 arising under section 129. 
 
 In Blouiii v. Quebec ((/), it was held by Chief Justice 
 Meredith that the provision of the Quebec statute (38 Vic- 
 c. 74), fixing the hours during which taverns, etc., should be 
 kept open, was within the competence of the provincial 
 legislature : that the provincial legislatures may make 
 reasonable regulations for the preservation of good order in 
 the municipalities under their control, and may for this 
 purpose restrict the sale of spirituous liquors. The Chief 
 Justice holds that provincial legislation, such as above in- 
 dicated, falls within the provisions of section 92, sub-sect i<>n 
 8, " municipal institutions," such laws being in the nature 
 of police regulations. 
 
 It was held by Mr. Justice Alleyn, in De St. Aubyn v. 
 Laf ranee (<?), that while provincial legislatures may make 
 laws regulating the sale of liquors in taverns and public 
 places, in order the better to maintain peace and good omer, 
 they cannot directly or indirectly jn-<>li!hit the manufacture 
 or sale of spirituous liquors, or other articles of commerce 
 or confer authority for that purpose upon municipal 
 councils. Such legislation it was held would be in direct 
 conflict with the powers of the Dominion parliament under 
 this sub-section. 
 
 Finally, just prior to the decision in Hodge v. Reg., the 
 general question of the power of a provincial legislature in 
 connection with the liquor traffic came before the Quebec 
 Court of Queen's Bench (appeal side), in Three Rivers v. 
 Suite (/). It was held broadly that a provincial legisla- 
 
 (</) 2 Cart. 368 ; 7 Q. L. R. 18 (1880). 
 (e) 2 Cart, 392 ; 8 Q. L. R. 190 (1882). 
 
 (/) 5 Legal News, 330; 2 Cart. 280. Affirmed 11 S. C. R. 25. See 
 also Poulin v. Quebec, 9 S. C. R. 185.
 
 THE B. X. A. ACT SEC. 91, S.-8. 2. 363 
 
 ture has the power under " municipal institutions " to pass 
 a prohibitory liquor law, or a liquor law which is prohibi- 
 tory except under certain conditions. Reference was made 
 to the condition of affairs in the provinces prior to Confed- 
 eration, and it was held that the powers then possessed by 
 municipal bodies in, at any rate, " two great provinces of 
 Confederation and one of the smaller ones " (Nova Scotia), 
 are the powers which a provincial legislature can now 
 bestow upon such bodies. The affirmance of the decision 
 in this case in the Supreme Court cannot be taken as an 
 affirmance of the ground upon which the decision was 
 based. The judgment of the Supreme Court is avowedly 
 put as following Hodge v. Reg. 
 
 We have already quoted, see ante, p. 358, the passage 
 from the judgment of the Judicial Committee of the Privy 
 Council in Russell v. The Queen (</), in which that tribunal 
 intimated that although its judgment upholding the 
 validity of the Canada Temperance Act, 1878, was based 
 upon the residuary clause, as it has been termed, of section 
 
 91, they nevertheless did not desire to be.understood as dis- 
 senting from the position taken by the Supreme Court of 
 Canada in Fredricton v. The Queen (/<.), in which the Act 
 was upheld as a matter relating to the regulation of trade 
 and commerce. In many quarters this was taken to mean 
 that the Dominion parliament alone has power to legislate 
 in connection with the liquor traffic. This view however 
 was very decisively negatived in the judgment of the Privy 
 Council in Hodge v. The Queen ( /), upholding the validity 
 of the Ontario Liquor License Act. While, as we shall have 
 to point out, a good deal of uncertainty exists upon the ques- 
 tion upon which one of the various sub-sections of section, 
 
 92. the legislative power of a provincial legislature over 
 certain phases of the liquor traffic is to be rested, it is now 
 clearly settled that, so long as provincial legislation stops 
 
 (0) 1 App. Cas. 829. (h) 3 S. C. R. 505. 
 
 (/) 9 App. Cas. 117.
 
 3(14 THE B. X. A. ACT SEC. 91, S-.S. >. 
 
 short of absolute prohibition, it cannot be taken to infringe 
 upon the regulation of trade and commerce. 
 
 Following Hodge v. The Queen, the Supreme Court of 
 Canada has since affirmed the validity of the Liquor License 
 Acts of Quebec and New Brunswick respectively. Ser 
 Suite v. Three Rivers (j), and Danaher v. Peters (k\. 
 
 We should, perhaps, mention here that in Severn v. 'Flu- 
 Queen (I), the Supreme Court of Canada held that a pro- 
 vincial legislature has no power to pass an Act requiring a 
 brewer to take out a license to sell liquor manufactured by 
 him. The judgment of the court was founded on the view 
 (1) that such legislation was an interference with trade and 
 commerce; and (2) that a brewer's license is not eju&lrm 
 generis with the licenses particularly mentioned in section 
 92, sub-section 9. So far as the first ground is concerned, 
 Hodge v. The Queen (m), must be considered to deprive 
 Severn v. The Queen of its support ; and as to the second, 
 the judgment of the Privy Council in Bank of Toronto v. 
 Lambe (n) must be taken as an affirmance of the power of 
 a local legislature to levy such a license fee as being a 
 "direct" tax within the province under sub-section '2 of 
 section 92. 
 
 The removal of the first ground of support is nrogni/ed 
 by the judgment of the Supreme Court in Molson v. Lambe 
 (o), although that case is complicated somewhat by reason 
 of the question as to the propriety of the issue of a writ of 
 prohibition under the peculiar circumstances of the case. 
 The majority of the court, however, were of opinion that 
 the question of the validity of the Quebec License Act had 
 been settled by the judgments of the Judicial Committee 
 of the Privy Council. Ritchie, C.J., expresses himself thus : 
 
 " In view of the cases determined by the Privy Council since 
 the case of Severn v. The Queen was decided in this court, which 
 
 (j) 11 S. C. R. 25. (m) *J App. Cas 117. 
 
 (k) 17 8. C. R. 44. (n) 12 App. Ca*. 575. 
 
 (I) 2 S. C. K. 70. (o) 16 S. C. R. 2, r >3.
 
 THE B. X. A. ACT SEC. 91, S.-S. 2. 365 
 
 appear to nie to have established conclusively that the right and 
 power to legislate in relation to the issue of licenses for the sale 
 of intoxicating liquors by wholesale and retail belong to the local 
 legislature, we are bound to hold that the Quebec License Act, 
 1878, and its amendments are valid and constitutional." 
 
 Mr. Justice Gwymie expresses the view that Severn v. 
 The Queen is still an authority binding upon Canadian 
 courts, but rests his dissent from the view of the majority 
 upon the ground that upon a proper construction of the 
 Quebec License Act, it imposed no obligation upon a brewer, 
 manufacturing under Dominion license, to take out a pro- 
 vincial license. 
 
 A further distinction will be found noted in the cases 
 between the issue of a license to sell b}~ retail and to sell by 
 wholesale. The point is practically covered by Molson v. 
 Lambe, but, as indicative of the difference of opinion which 
 may still honestly exist as to certain matters in connection 
 with the liquor traffic, we may refer to the case of Queen v 
 McDougall (p), in which the Supreme Court of Nova 
 Scotia had to consider, the question of the validity of the 
 X<>va Scotia Liquor License Act. The defendant was con- 
 victed of rive separate offences, each dealing with a distinct 
 phase of the question. Three out of five judges intimated 
 their opinion that Severn v. The Queen (q), must be taken to 
 be overruled, and that a provincial legislature may not 
 merely regulate the retail traffic in intoxicating liquor, but 
 may also pass laws in relation to wholesale licenses, and 
 licenses for brewing and distilling. Mr. Justice Weatherbe, 
 however, expressed the view that the restriction, requiring a 
 petition from a certain number or proportion of the rate- 
 payers in order to obtain a license, was ultra >! res; but, as we 
 shall see, this view cannot now be considered law. The Chief 
 Justice and Mr. Justice Ritchie considered Sevem v. The 
 Queen to be still an authority binding upon them, and that 
 therefore the conviction of the defendant as a brewer and 
 
 (p) 20 N. S. R. 462. (q) 2 S. C. R 70.
 
 366 THE B. X. A. ACT SEC. 91, S.-8. 2. 
 
 distiller must, upon the authority of that case, be quashed : 
 and the other convictions on the ground that the regulation 
 of the wholesale trade is ultra vires of a provincial legisla- 
 ture. Mr. Justice Ritchie intimated that although there is 
 a difficulty in drawing the line between wholesale and 
 retail, yet as the Act itself defined " wholesale," all restric- 
 tions as to the sales of the quantities so defined, are vitro 
 vires. The discussion of the authorities in that case is very 
 voluminous, but in view of the subsequent decision of the 
 Supreme Court of Canada in Danaher v. Peters (r\ uphold- 
 ing the Liquor License Act of New Brunswick, it is 
 unnecessary to discuss this case further, beyond noting that 
 Mr. Justice Weatherbe refers to the Dominion License Act 
 of 1883, as being substantially identical as respects its 
 wholesale and retail clauses, with the Nova Scotia Act. 
 Referring to the judgment of the Judicial Committee of the 
 Privy Council, declaring the Dominion Act uUr vires, he 
 treats that decision as conclusive in favor of the validity of 
 a provincial Act. 
 
 In the two cases about to be noted, involving the qur^- 
 tion of the validity of the New Brunswick Liquor License 
 Act, 1887, appeals were lodged by appellants who had been 
 applicants for each of these classes of licenses respectively. 
 Both appeals, however, were dismissed, thus upholding the 
 validity of provincial legislation upon both branches of tin- 
 traffic. 
 
 The question still remains, however, as we have said, 
 as to the power of a local legislature to prohibit absolutely 
 the sale of intoxicating liquors in the province. In the 
 cases to which we have just referred Danaher v. Peters, 
 and O'Regan v. Peters (.y) it was contended that the New 
 Brunswick Liquor License Act of 1887, could be utilized as 
 a means for effecting prohibition. The Act provides that 
 applications for licenses under the Act must be endorsed by 
 the certificate of one-third of the rate-payers of the district 
 
 (r) 17 S. C. K. 44. (.) 17 S. C. R. 44.
 
 THE B. N. A. ACT SEC. 91, S.-S. 2. 367 
 
 in which the license is asked ; and it was urged, therefore, 
 that a majority of more than two-thirds could in any 
 locality within the province, effect complete prohibition. 
 As being the last deliverance of the Supreme Court upon 
 this question, we venture to quote somewhat fully from the 
 judgments. Mr. Justice Taschereau says : 
 
 " As to the constitutionality of the Act there can be no doubt, i 
 This is not a statute to prohibit, it is a statute to regulate ; to i 
 permit under certain conditions. If these conditions are not ful- 
 filled, it may be that the consequences are that the sale of liquor 
 is virtually prohibited ; but that consequence cannot render the 
 Act unconstitutional." 
 
 Mr. Justice G wynne says : 
 
 " It was contended that, in effect, the Act operates as a total 
 prohibition of the sale of liquor in the City of St. John, and that 
 
 it was therefore ultra rirex and void The argument 
 
 based upon this section" that is, the section requiring the cer- 
 tificate of one-third of the rate-payers " was, that it shewed 
 clearly the intention of the legislature to be, that any number of 
 rate payers in a polling sub-division, exceeding two-thirds, should 
 have the power of totally prohibiting the sale of liquor, by refus- 
 ing to sign the certificates for applicants for licenses. Then it 
 was contended that section 31 authorizes the majority of the rate- 
 payers in a city or incorporated town, to prohibit the sale of 
 liquor by petitioning against the granting of licenses ; and for 
 those reasons it was contended that the Act was, in effect, an Act 
 for the total prohibition of the sale of liquor in the City of St. 
 John, and therefore ultra i-ires, and void ; but there is nothing in 
 the language of the Act which would justify us in pronouncing 
 the intention of the legislature to have been to enact a prohibi- 
 tion of the sale of liquors in a municipality, or in any part there- 
 of, under color of passing an Act on the subject of municipal 
 regulations relating to the sale of liquors, which is a subject 
 clearly within the jurisdiction of a local legislature. The objec- 
 tions which alone the Act authorizes to be urged by petition 
 against the granting of a license to a particular person, or for a 
 particular house, enumerated in section 15, seem to be very 
 reasonable grounds of objection as affecting the person and place
 
 368 THE B. X. A. ACT SEC. 91, S.-S. 2. 
 
 sought to be licensed, as regards the retail trade in liquors ; and 
 although these objections may seem to be unreasonable if applied 
 to a person or shop for which a license to sell liquors by whole- 
 sale is sought to be obtained, we cannot for that reason hold the 
 object of the legislature to have been to effect prohibition of the 
 trade of dealing in the sale of liquors, under color of an Act 
 establishing municipal regulations affecting that trade. 
 Defects or imperfections in the Act, or provisions therein which 
 may be, or may appear to some to ba, unreasonable, will not 
 justify us in pronouncing the tnt/> object f the Art t<> hurt- been ]in>- 
 hibition, total or partial, of the trade of dealing in the sale of 
 liquors, under pretence of establishing municipal regulations 
 upon that subject." 
 
 Mr. Justice Patterson say.- : 
 
 " The power of the local legislatures to provide for the 
 issuing of licenses for the sale of spirituous liquors, either in 
 large or small quantities, to limit the number of licenses, and 
 to prohibit, under penalties, the sale of such liquors without 
 license, cannot now be treated as an open question. The con- 
 tention for the present appellants is, that the New Brunswick 
 Liquor License Act, 1887, while professing merely to deal with 
 the subject of licenses, contains provisions which, from their 
 inherent tendency or from the way in which they may be acted 
 on, give the measure the effect of a prohibitory law, either as to 
 the whole province and for all time, or as to particular localities 
 and particular calendar years. The larger question of the 
 power of the province to prohibit the sale of intoxicating liquors 
 within its own borders, is not presented for discussion, and we 
 have to deal only with questions which concede that total 
 prohibition can be decreed only by the Dominion parliament. 
 
 The objections are too fanciful and far-fetched 
 
 to be seriously discussed without denying to the local legislature 
 the right to prescribe the conditions on which licenses can be 
 obtained. They assume a right in every man to demand a 
 license, ignoring the right of the legislature to limit the 
 number." 
 
 A perusal of these passages discloses that, in the opinion 
 of the members of the Supreme Court, the question of the 
 ]>o\verof a provincial legislature to enact a prohibitory law
 
 THE B. X. A. ACT SEC. 91, S.-S. 2. 369 
 
 for the province is still an open one. In the province of 
 Ontario, the matter has been under the consideration of the 
 Court of Appeal for that province in Re Local Option Act 
 (). The case is complicated somewhat by the fact that in 
 that province at the time of Confederation there was in 
 existence a law which distinctly empowered municipal 
 bodies to pass by-laws for the total prohibition of the retail 
 liquor traffic within the municipality. These provisions had 
 never been repealed by provincial legislation, but, in sub- 
 sequent consolidations of provincial statutes, had been 
 omitted owing to the existence of somewhat similar clauses 
 as to local option in the Canada Temperance Acts of 1864 and 
 1878. The particular Act which came under the considera- 
 tion of the court was 53 Vic. c. 56. As explained by 54 Vic. 
 c. 46, s. 1, that enactment purported to be simply a revival 
 of the provisions which had existed in the laws in force in 
 the province prior to Confederation. It appears, however, 
 that these pre-Confederation provisions had been repealed 
 by Dominion legislation (u), so that it became necessary for 
 the court to determine which legislature, Dominion or pro- 
 vincial, had power to pass such an enactment. The case was 
 submitted for the consideration of the court under the pro- 
 visions of 53 Vic. c. 13 (Ont.) "An Act for expediting the 
 decision of constitutional and other provincial questions," 
 and Mr. Justice Osier declined to give any opinion upon 
 the questions submitted. The other members of the court 
 Hagarty, C.J.O., Burton and Maclennan, JJ.A. upheld 
 the power of the provincial legislature to pass such " local 
 option " laws^. basing their judgment upon the view that 
 such legislation falls within sub-section 8 of section 92, 
 " municipal institutions in the province." So far as Ontario 
 is concerned, therefore, it must be taken as settled that a 
 local legislature can empower a municipality to pass a pro- 
 hibitory by-law, so far, at all events, as relates to the retail 
 trade in intoxicating liquors, it being held that, upon a 
 
 (<) 18 O. A. R. 572. (u) See E. S. C. (1886), p. 2255. 
 
 CAN. CON. 24
 
 370 THE B. N. A. ACT SEC. 91, S.-S. 2. 
 
 proper construction of the statutes in question, they do not 
 cover the wholesale trade. With regard to the construction 
 placed upon sub-section 8 of section 92, we shall have to 
 refer to this subject again in the notes to that sub-section. 
 It is material, however, to note here that the decision of 
 the Court of Appeal in no way affirms the right of a local 
 legislature to pass a prohibitory law of general application 
 / throughout the province. In fact, Mr. Justice Burton, 
 while intimating his own view that such power does exist, 
 expresses the opinion that the matter is concluded against 
 the provinces by the judgment of the Privy Council in 
 Russell v. The Queen (v), affirming the judgment of the 
 Supreme Court of Canada in Fredericton v. The Queen (w), 
 (in which the power to prohibit was distinctly classified us 
 coming under sub-section 2 of section 91), without intimat- 
 ing any dissent from the view upon which that decision 
 was based. To the like effect, in Griffith v. Rioux (.?), it 
 was held by Brooks, J., sitting in the Quebec Superior 
 Court, that a provincial legislature cannot repeal those 
 sections of the Dunkin Act which relate to the prohibition 
 of the sale of intoxicating liquors ; the matter of prohibition 
 being, in his opinion, covered by the decision of the Supreme 
 Court in Fredericton v. The Queen, as affirmed in Russell 
 v. The Queen. 
 
 The decision of the Court of Appeal for Ontario, in Re 
 Local Option Act (y), leaves the matter in this peculiar 
 position ; that, by united action on the part of the various 
 municipalities throughout the province, the total prohibi- 
 tion of the retail liquor traffic may possibjy be effected, 
 but that a provincial legislature has no power to do directly 
 what it may empower a municipality to do. In Hodge v. 
 The Queen (z), the Judicial Committee of the Privy Council 
 expressed the view that the power of a provincial legislature 
 
 (v) 1 App. Gas. 829; see ante, p. 358 
 
 (w) 3 S. C. K. 505. (y) 18 O. A. R. 572. 
 
 (x) 3 Cart. 348. (z) 9 App. Gas. 117.
 
 THE B. X. A. ACT SEC. 91, S.-S. 2. 
 
 to pass Acts in regulation of the traffic in particular com- 
 modities, exists under section 92, sub-section 8 " municipal 
 institutions " ; 15" the imposition of punishment by line, 
 etc." ; and 16 " matters of a merely local or private nature 
 in the province." Further than this general statement, the 
 judgment of that tribunal throws very little light upon the 
 subject we are now discussing. It does not indicate clearly 
 whether any one of these sub-sections alone supports the 
 power, or whether the combined force of all is required 
 to uphold such legislation. They speak of license regula- 
 tions as seeming to be matters of a merely local nature 
 in the province, and to be similar to, though not identical 
 in all respects with, the power that belongs to municipal 
 institutions under previously existing laws passed by the 
 local parliaments. 
 
 " Their Lordships consider that the powers intended to be 
 conferred by the Act in question, when properly understood, 
 are to make regulations in the nature of police or municipal 
 regulations, of a merely local character for the good government 
 of taverns, etc., licensed for the sale of liquors by retail, and 
 such as are calculated to preserve, in the municipality, peace 
 and public decency, and repress drunkenness and disorderly and- 
 riotous conduct. As such they cannot be said to interfere with 
 the general regulation of trade and commerce which belongs to 
 the Dominion parliament." 
 
 No attempt, it will be seen, is made to distinguish 
 between sub-sections 8 and 16, of section 92. There is 
 however the distinct expression of opinion that such 
 matters do not fall within this sub-section of section 91. 
 
 The conclusion appears to us unavoidable that if a local 
 legislature has power, under " municipal institutions," to 
 authorize a municipal body of its own creation to prohibit 
 the traffic in any commodity, the use or abuse of which may 
 tend to the disturbance of the peace of the community, or 
 to prejudicially affect its health or morals, the legislature 
 itself must necessarily have the power to pass a general 
 law prohibiting the traffic in such commodity throughout
 
 372 THE B. X. A. ACT SEC. 91, S.-S. 2. 
 
 all the municipalities of the province. If the conclusion 
 be unsound the premises must go, and then we must fall 
 back upon some class enumerated in section 92, other than 
 " municipal institutions," as supporting the power to regu- 
 late, to the extent of prohibition, the traffic in particular 
 commodities within a province. If regulation, conditionally 
 prohibitive, be not an infringement of the power of the 
 Dominion parliament to regulate trade and commerce. 
 as those words have been construed by the various judg- 
 ments, above cited, of the Judicial Committee of the Privy 
 Council, it seems difficult to appreciate how the absolute 
 prohibition of traffic in such commodities as above indicated 
 can be such infringement. It cannot be by reason of the 
 extent of interference with " trade and commerce " for a 
 "regulation" of the traffic in one commodity may cause 
 greater interference than a total prohibition of the traffic 
 in several others. 
 
 Turning now to the traffic in commodities other than 
 intoxicating liquor, no distinction in principle can be sug- 
 gested. The fact that the Dominion Inland Revenue and 
 Excise Acts utilize this latter traffic for purposes of taxation 
 cannot make any difference, as is now settled by the 
 principle of the decision of the Privy Council in Bank of 
 Toronto v. Lambe, applied e converso. This case will be 
 referred to more at length hereafter. We proceed now to 
 a short review of the cases dealing with the power of a 
 provincial legislature to legislate in relation to the traffic 
 in other commodities. 
 
 In a number of cases, regulations as to the carry in- ><\\ 
 of certain classes of business in markets, have been held to 
 be no infringement of the power of the Dominion parliament 
 under this sub-section. 
 
 In Re Harris and Hamilton (), the provision in the 
 Municipal Act of Ontario empowering Municipal Councils 
 to pass by-laws "for preventing criers and venders of small 
 
 (a) 44 U. C. Q. B. 641.
 
 THE B. X. A. ACT SEC. 91, S.-S. 2. 373 
 
 ware from practising their calling in the market, public 
 streets and vacant lots adjacent thereto " was upheld as 
 i nl rn r/'/v-x l>y Mr. Justice Armour now Chief Justice of 
 the Q. B. D. ; and this decision represents the law as it has 
 ever since been recognized in that province. 
 
 In Angers v. Montreal (6) and Mallette v. Montreal (c), 
 an Act of the Quebec legislature, authorizing the imposition 
 of a license fee on butchers exercising their calling in places 
 other than the public markets of a municipality, was held 
 valid ; and in Ex parte Pillow (d) it was held that a pro- 
 vincial legislature may authorize municipal bodies to pass 
 by-laws in restraint of nuisances hurtful to public health. 
 The attack in this last case it should perhaps be remarked 
 was upon the ground that such legislation conflicts with 
 the power of the Dominion parliament over " criminal law " 
 rather than with the power to regulate trade and commerce, 
 but the general principle of the case is the same as that in- 
 volved in the others. 
 
 The question has lately come before the Supreme Court 
 of Canada in Pigeon v. Recorder's Court (e), and the opinion 
 of the court is contained in a sentence taken from the judg- 
 ment of Mr. Justice Taschereau: "As to the constitutionality 
 of the sections . . there is no room for controversy." 
 
 In Bennett v. Pharmaceutical Association (/), it was held 
 by the Court of Queen's Bench of Quebec, that the Quebec 
 Pharmacy Act of 1875, requiring certain qualifications on 
 the part of persons engaged in the business of selling drugs 
 and medicines, was valid. Treating of this question, Chief 
 Justice Dorion says : 
 
 " In the present case there is no prohibition to sell drugs or 
 meclichias in any part of the province of Quebac ; the provision 
 is merely that drags and medicines shall only be sold by persons 
 having the qualifications provided for by the Act. 
 
 (6) 24 L. C. Jur. 259 ; 2 Cart. 335. 
 
 (c) 24 L. C. Jur. 263 ; 2 Cart 340. 
 
 (d) 27 L. C. Jur. 216 ; 3 Cart. 357. 
 
 () 17 S. C. K. 495. (/) 1 Dor. 336 ; 2 Cart. 250.
 
 374 THE B. N. A. ACT SEC. 91, S.-S. 2. 
 
 " It is true that incidentally this may be considered as interfer- 
 ing in some degree with the sale of drugs and medicines in the 
 province of Quebec, since it limits the number of persons who 
 can do that business." 
 
 In Beard v. Steele (g), the provisions of the Mercantile 
 Amendment Act, as to the rights and liabilities of con- 
 signees and indorsees of bills-of-lading, were held to be 
 provisions as to property and civil rights in the province, 
 and therefore within the power of a provincial legislature. 
 They were held not to be regulations of commerce within 
 the meaning of this sub-section 2. In Regina v. Taylor (h), 
 Mr. Justice Wilson afterwards Chief Justice Sir Adam 
 Wilson gives more at length the considerations which had 
 induced the court to uphold these provisions on the ground 
 mentioned : 
 
 "It did not seem to me, at the time, to be a regulation of 
 trade, and it does not seem to me to be so now. It does however 
 affect trade and commerce. But what enactment will not, in 
 some way or other, affect it ? If an Act were passed requiring 
 every person who instituted a suit to give security for costs, or 
 still further limiting the time within which to bring an action, 
 .or enacting that no execution should be issued on a judgment 
 until a demand was first made of the sum recovered on the 
 person liable to pay it, or giving to the holder of a bill of ex- 
 -change, or promissory note, a lien for the amount due upon it 
 on the goods of the acceptor or maker, all these provisions, and 
 many other cases which might be put, would very much affect 
 trade and commerce, but could they be said to be a regulation of 
 it? I certainly think they could not. They would do so only 
 incidentally ; but not more so in principle than by shutting up a 
 trader in gaol for debt or for contempt of court, or by closing all 
 shops at eight o'clock at night, or by the exercise of mere police 
 powers, or by giving a public holiday. All these are lawful 
 objects, and if they can be properly adopted they do not become 
 unlawful, because they cannot be wholly separated from every 
 other matter, and because they are attended with inevitable 
 Consequences. I think the provincial legislature have the power 
 
 (O) 34 U. C. Q. B. -13. (//) 3(5 U. C. Q. B. 21-2.
 
 THE B. X. A. ACT SEC. 91, S.-S. 2. 375 
 
 to annex the right of contract to the right of property in the 
 goods mentioned in a bill of lading although it does affect 
 trade and commerce." 
 
 It should be noted, perhaps, that in the same judgment 
 the view is expressed that the Dominion parliament would 
 have power to pass a similar law, if it did so " as a neces- 
 sary and convenient matter to be dealt with in the regula- 
 tion of trade and commerce." This question of concurrent 
 power, however, has been already touched upon (i) and we 
 need not discuss this point of the case further here. 
 
 The principles enunciated in the above cases e.g., Ex 
 jHirti- Pillow, Bennett v. Pharmaceutical Association, and 
 Beard v. Steele support the validity of provincial Acts 
 such as the Employers Liability Acts and Factory Acts, 
 which, no doubt, in a sense affect trade and commerce, but 
 which in their intended scope relate to the civil rights of 
 employers and employees (j) to matters of a merely local 
 or private nature in the province and cannot be deemed 
 regulations of general trade and commerce within the mean- 
 ing of this sub-section as defined in the deliverances of the 
 Privy Council. 
 
 The latest authoritative deliverance as to the meaning 
 to be attached to this sub-section, is to be found in Bank of 
 Toronto v. Lainbe (k}, in which it was urged that the power 
 of the Dominion parliament to regulate trade and commerce 
 operates to prevent a provincial legislature from levying 
 taxes upon a bank. The Judicial Committee of the Privy 
 Council negatived this contention in the following language: 
 
 " The words regulation of trade and commerce are indeed very 
 wide, and in Set-em's L'axe (I), it was the view of the Supreme 
 Court that they operated to invalidate the license duty which 
 was there in question. But, since that case was decided, the 
 
 (0 Chapter X. ante, p. 214, et seq. 
 
 (j) See Monkhouse v. G. T. R., 8 0. A. R. 637, and Can. Southern Ry. 
 v. Jackson, 17 S. C. R. 316, both noted under sub-section 10 of section 92, 
 post. 
 
 (A I 12 App. Cas. 575. (?) Severn v. Reg., 2 S. C. R. 70.
 
 376 THE B. N. A. ACT SEC. 91, S.-S. 3, 4. 
 
 question has been more completely sifted before the Committee, 
 in {'arson's (.'use (m) and it was found absolutely necessary that 
 the literal meaning of the words should be restricted in order to 
 afford scope for powers which are given exclusively to the pro- 
 vincial legislatures. It was there thrown out that the power of 
 regulation given to the parliament meant some general or inter- 
 provincial regulations. No further attempt to define the subject 
 need now be made, because their Lordships are clear that if they 
 were to hold that this power of regulation prohibited any pro- 
 vincial taxation on the persons or things regulated, so far from 
 restricting the expressions, as was found necessary in I * man's 
 Case, they would be straining them to their widest conceivable 
 estent." 
 
 f "f" 3. The raising of money by any mode 
 or system of taxation. 
 
 4. The borrowing of money on the 
 public credit. 
 
 Compare with this sub-section 3, sub-section 2 of section 
 92 which assigns to provincial legislatures the exclusive 
 power to make laws relating to " direct taxation within tin- 
 province." In Bank of Toronto v. Lainbe (n\ it is snM 1>y 
 the Judicial Committee of the Privy Council, commenting 
 upon this provincial power, that the above sub-section 3 
 
 " certainly is in literal conflict with it. It is 
 impossible to give exclusively to the Dominion the whole subject 
 of raising money by any mode of taxation, and at the same time 
 to give to the provincial legislature exclusively or at all, the 
 power of direct taxation for provincial or any other purpose. 
 This very conflict between the two sections was noticed by way of 
 illustration in the case of Parsons. Their Lordships there >ai<l, 
 ' So, the raising of money by any mode or system of taxation is 
 enumerated among the classes of subjects in section 91 ; but 
 though the description is sufficiently large and general to include 
 direct taxation within the province in order to the raising of a 
 
 (m) Citizens v. Parsons, 7 App. Gas. 96. 
 (H) 12 App. Gas. 575.
 
 THE B. X. A. ACT SEC. 91, S.-S. 5. 377 
 
 revenue for provincial purposes, assigned to the provincial legis- 
 latures by section 92, it obviously could not have been intended 
 that, in this instance also, the general power should override the 
 particular power.' Their Lordships adhere to that view, and 
 hold that as regards direct taxation within the province to raise 
 revenue for provincial purposes, that subject falls wholly within 
 the jurisdiction of the provincial legislatures." 
 
 Miifnfi* uti.ifii iiili.*, the views expressed in the above 
 extract apply to a comparison of the above sub-section 4 
 with sub-section 3 of section 92 "the borrowing of money 
 on the sole credit of the province." 
 
 Conceding the entire correctness of the view of the 
 Judicial Committee, this further view deserves considera- 
 tion, namely, that these apparently over-lapping powers do 
 not in fact conflict at all that the power of either govern- 
 ment in this connection is limited to raising money for 
 purposes connected with its sphere of authority ; the choice 
 of method allowed to the Dominion government being of 
 tlu- widest possible character ; that of the provincial gov- 
 ernments being limited to direct taxation within the 
 province, because, as it is put in this very case, the power 
 of indirect taxation would be felt all over the Dominion. 
 Perhaps this should not be advanced as a further view : it 
 probably represents what was in the mind of the Commit- 
 tee in using the expression " obviously." 
 
 Under these sub-sections have been passed our various 
 Acts relating to Customs and Excise duties see R. S. C. 
 c. 32, 33 and 34 : and Acts in relation to Finance see 
 R. S. C. c. 28 and 29. Note also chapter II., ante, p. 35 ; 
 ' t -'(/.. for an account of the practical surrender to colonial 
 legislatures of full control over their own revenues and 
 tariffs. 
 
 See also the cases collected under section 92, sub-section 
 
 2. /W. 
 
 5. Postal service.
 
 378 THE B. N. A. ACT SEC. 91, S.-S. 6, 7. 
 
 6. The Census and Statistics. 
 
 We have not found any expression of judicial opinion 
 as to the scope of this sub-section 6, although a number of 
 questions suggest themselves. It must be construed so as 
 to exclude provincial legislation upon whatever matters are 
 properly included in it ; and it seems to us that any con- 
 struction other than " the Census, and Statistics in relation 
 thereto" would land us in difficulties. So construed, it lias 
 reference to the census required to be taken every ten years 
 by section 8 of the B. N. A. Act, and to the compilation of 
 statistics in reference to nationality and creed, the increase 
 <r decrease of population, and kindred matters. In the 
 Quebec Resolutions the words " and statistics " do not 
 appear. No wider interpretation is needed to enable the 
 Dominion parliament to institute enquiries and compile 
 statistics as to any matters upon which information is 
 desired in order to intelligent legislation upon the various 
 subjects committed to its legislative care. Ajcts authorizing 
 such proceedings would be laws " relating to " such subjects. 
 Any wider interpretation would have the absurd effect of 
 condemning provincial legislatures to legislate in the dark 
 upon many very important matteiv 
 
 7. Militia, Militan and Xaval Service, 
 and Defence. 
 
 See notes to section 15, ante, p. 259. This is perhaps 
 the matter in which, above all others, the Imperial authori- 
 ties continue to exercise supervision over colonial legisla- 
 tion, and in respect to which, also, the British parliament 
 passes Acts of express colonial application. The Com- 
 mander-in-Chief of the Canadian forces is appointed by the 
 Imperial authorities. At the same time, the laws relating 
 to the volunteer forces of Canada are largely of Canadian 
 t-nactment, but, as we have said, they are very carefully 
 scrutinized by the Imperial authorities: the idea being
 
 THE B. N. A. ACT SEC. 91, S.-S. 7. 879 
 
 to have a uniform system of defence throughout the 
 Empire. 
 
 In Holmes v. Temple (o), it was held (in Quebec) that 
 the provisions of the Imperial "Army Act, 1881," do not 
 apply to Canada, so as to make persons not connected with 
 the active Militia of the Dominion liable in respect of acts 
 which are offences under the Imperial Act but not under 
 the Militia Act of Canada. The whole subject of Imperial 
 defence is of such a complicated nature, and so many of the 
 provisions of Imperial Acts are in force in all portions of 
 the Empire, that it is not thought desirable to discuss the 
 matter at any length here (p). We simply note the only 
 case which has been decided in Canada since Confederation 
 (q) in reference to the subject, and in reference to this case 
 it should be remarked that, apparently, Mr. Justice Chauv- 
 eau held the view that the legislative authority of the 
 Dominion parliament under this sub-section is " exclusive " 
 as between that parliament and the parliament of the 
 United Kingdom a view which cannot of course be main- 
 tained. He treats the English Army Act of 1881 as appli- 
 cable in Canada only to the extent to which it is expressly 
 made so by the Canadian Militia Act (31 Vic. c. 40). The 
 proper position is clearly this : so far as Imperial legislation 
 upon this subject is, within the meaning of the Colonial 
 Laws Validity Act, 1865, made applicable to the colonies 
 generally, or to Canada in particular, any Canadian legis- 
 lation repugnant thereto, in whole or in part, must be held 
 to be void and inoperative to the extent of such repug- 
 nancy, but not otherwise that is to say, in so far as 
 Canadian legislation is supplementary to and not inconsis- 
 tent with Imperial legislation upon the subject, this sub- 
 section 7 distinctly affirms the authority of the Dominion 
 parliament, as distinguished from provincial assemblies, to 
 pass such legislation. 
 
 CM 8 Q. L. R. 351 ; 2 Cart. 396. 
 
 (p) See Todd " Parl. Govt. Brit. Col." 274, et seq. 
 
 iq) See Reg. v. Schrarn, 14 II C. C. P. 318 (1864), noted ante, p. 65.
 
 380 THE B. N. A. ACT SEC. 91, S.-S. 8. 
 
 8. The fixing of and providing for the 
 salaries and allowances of civil and other 
 officers of the Government of Canada. 
 
 Compare section 92, sub-section 4. 
 
 In Evans v. Hudon (r), in the Superior Court of Quebec, 
 it was held that a provincial legislature has no power to 
 declare liable to seizure the salaries of employees of the 
 Federal government, the exemption of such salaries being 
 " a matter of public order." 
 
 Much the same question came before the courts in 
 Ontario in the case of Leprohon v. Ottawa (.s), in which it 
 was held by the Court of Appeal, reversing the decision of 
 the Court of Queen's Bench, that provincial powers of tax- 
 ation do not extend over the salaries of the executive staff 
 of the Dominion. The decision is based, not so much 011 
 the limited effect of sub-section 2 of section 92, as upon the 
 broader ground that the provincial legislature has no power 
 to impose a burden upon any of the instruments by which 
 the Dominion government is carried on, and cannot invest 
 a municipal corporation of its own creation with a power 
 which it cannot itself directly exercise. The arguments in 
 support of the contrary view will be found in the opinions 
 delivered in support of the judgment of the Court of 
 Queen's Bench. The question has never been further 
 litigated. This case is noteworthy for the free use, made 
 by the judges, of the decisions of the Supreme Court of the 
 United States upon similar questions which have arisen 
 there. The whole matter is one of much interest as indi- 
 cative of the distinct separation of the governmental organ- 
 ization of the Dominion and of the provinces respectively) 
 and of their mutual independence. 
 
 So far as the Dominion government is concerned, the 
 severance of the tie of territorial connection with one pro- 
 vince and the creation of a distinct, exclusively federal, 
 territory as the seat of the Dominion government, would. 
 
 (;) 22 L. C. Jur. 268 ; 2 Cart. 346. (s) 2 O. A. R. 522.
 
 THE K. X. A. ACT SEC. 91, S.-S. 9-11. 381 
 
 to some extent, do away with this difficulty. As the law / 
 now stands, in, at least, Ontario and Quebec, federal officials / 
 are exempt from provincial burdens, while for provincial/ 
 officers there is no escape from the burden of federal tariffs. 
 As dealing with a somewhat kindred topic, see the 
 notes to section 125. post. 
 
 9. Beacons, Buoys, Lighthouses, and 
 Sable Island. 
 
 10. Navigation and Shipping (i). 
 
 11. Quarantine and the establishment 
 and maintenance of Marine Hospitals. 
 
 (i) " Navigation and Shipping." This is one of those 
 subjects in respect of which colonial legislative power is 
 limited by reason of the existence of Imperial legislation 
 upon the subject applicable to, and in force in, the different 
 colonies of the Empire. It is beyond the scope of this 
 work to attempt any treatment of this large branch of 
 English jurisprudence ; we must simply note the line of 
 division between the Dominion parliament and the provin- 
 cial legislature in respect of the various matters which 
 may appear in some aspects to fall within this sub-section, 
 and, in other aspects, within some one or more of the 
 various sub-sections of section 92. 
 
 The line of argument which led the Judicial Committee [ 
 of the Privy Council in Citizens v. Parsons (t), to limit sub- 
 section 2, " the regulation of trade and commerce," to regu- 
 lations relating to general trade and commerce, would 
 appear to be equally applicable to limit this sub-section 10. 
 See sub-sections 9, 11, and 13, all of which would be un- 
 necessary if the wider meaning were intended to be given 
 to this sub- section 10. See also section 92, sub-section 10, 
 and section 108, and the various cases there noted. 
 
 (0 7 App. Cas. 96.
 
 3&2 THE B. X. A. ACT SEC. 91, S.-S. 9-11. 
 
 Iii MacMillan v. The South-West Boom Company ( c ), it 
 was held by the Supreme Court of New Brunswick that, a 
 provincial enactment (37 Vic. c. 107) authorizing the erec- 
 tion of booms in a navigable river, does not conflict with 
 the power of the parliament of Canada with respect to 
 " navigation and shipping " ; those words being used in the 
 sense in which they are used in the several Acts of the 
 Imperial parliament, relating to navigation and shipping, 
 in the Act of the Dominion parliament, 31 Vic. c. 58, 
 namely, as giving the right to prescribe rules and regula- 
 tions for vessels navigating the waters of the Dominion, 
 and not excluding, for all purposes, provincial jurisdiction 
 over navigable waters. Allan, C. J., says : 
 
 " A local legislature, therefore, clearly, has a right to incor- 
 porate a Boom Company, where its objects, as in this case, are 
 entirely provincial, and the erection of the booms, piers, etc., 
 necessary for giving effect to such Act of incorporation, are 
 undoubtedly local works, necessary and useful only for this 
 lumbering business in one section of the province the river 
 Miramichi. The Acts then are entirely within the powers given 
 to the provincial legislature unless the construction of the word, 
 " navigation," is as has been contended for the plaintiff's 
 counsel ; for, in that case, the general power over local works 
 and undertakings must yield to the particular power given to 
 the Dominion parliament over the subject matter of navigation. 
 But- 1 think that it is not the proper construction of the term, 
 and therefore the Acts in question are not ultra r/yv.s." 
 
 It was held in McDougall v. Union Navigation Co. (>), 
 that the power to incorporate navigation companies, the 
 operations of which are limited to a particular province, 
 belongs exclusively to the legislature of such province. 
 
 In Normand v. St. Lawrence Navigation Co. (ic), the 
 grant, by the province of Quebec, of a water lot extending 
 
 (u) 1 Pug. & Burb. 715 ; 2 Cart. 542. Such an enactment however 
 cannot authorize any obtmction to navigation. See pn*t. 
 (v) 21 L. C. Jur. 63 ; 2 Cart. 223. 
 (ir) 5 Q. L. K. 215 ; 2 Cart. 231.
 
 THE B. X. A. ACT SEC. 91, S.-S. 9-11. 383 
 
 into deep water at the mouth of the River St. Maurice was 
 held to be valid, subject to the implied restriction that the 
 grantee should not use his powers in such a way as to 
 interfere with the requirements of navigation. 
 
 In Queddy River Driving Boom Co. v. Davidson (x), 
 it was held by the Supreme Court of Canada affirming the 
 judgment of the Supreme Court of New Brunswick, that a 
 provifleial legislature cannot authorize such an obstruction 
 of a navigable stream as would create a public nuisance. 
 In that case there was no Dominion legislation upon the 
 subject to alter the law as it existed in New Brunswick at 
 the date of the Union, and the true effect of the decision 
 would seem to be contained in an observation of Mr. 
 Justice Strong : 
 
 "The Queddy river is shown to be a navigable tidal river, 
 and the appellants have obstructed the navigation and thus 
 committed an act which is prinui fade a public nuisance, and 
 which the respondent shows to be especially injurious to him 
 as a riparian proprietor. The respondent was therefore entitled 
 to an injunction to restrain the continuance of the obstruction, 
 unless the appellants were able to show some legal justification 
 for the interference with the navigation of the river caused by 
 the construction and maintenance of these booms ; they, how 
 ever, show nothing but an Act of the provincial legislature 
 of New Brunswick." 
 
 Following Bank of Toronto v. Lambe (y), the Supreme 
 Court of Canada has held in Longueuil Navigation Co. v. 
 Montreal (z), that a provincial legislature can impose direct 
 taxation e.g., a fixed annual tax of 8200.00 upon ferry 
 men and ferry companies. Ferries plying entirely within one 
 province would, in any case, fall' within sub-section 10 of 
 section 92, although no doubt they would have to conform 
 to the provisions of any Act respecting " navigation and 
 shipping " passed by the Dominion parliament within the 
 proper scope of this sub-section. 
 
 (x) 10 S. C. R. 222 ; see notes to section 129, post, and also ante, 
 p. 200. 
 
 (y) 12 App. Gas. 575. (z) 15 S. C. R. 566.
 
 384 THE B. X. A. ACT SEC. 91, S.-S. 12. 
 
 In Central Vermont Railway Co. v. St. John (a), the 
 Supreme Court of Canada treated as almost beneath notice 
 the contention that the boundaries of a municipality can 
 not be extended by provincial legislation so as to include 
 therein part of a navigable river. 
 
 "If it is beyond controversy that navigable rivers are for 
 jiurjiuxi'x of ndci<i<ttion under the control of the parliament of 
 Canada, it is not less clearly established that the provinces have, 
 upon these same rivers, the right to exercise all municipal and 
 police powers, so long as their legislation creates no hindrance to 
 navigation." Per Fournier, J., at p. 297. 
 
 In " The Picton " (b), it was held by the Supreme 
 Court of Canada that, under section 101 (see post) and this 
 sub-section 10, the Dominion government was within its 
 powers in creating the Maritime Court of Ontario, having 
 jurisdiction over certain matters relating to navigation and 
 shipping. 
 
 In the case of " The Farewell " (c), before the Vice- 
 Admiralty Court of Quebec, it was held by Stuart, J., that 
 the Dominion parliament can confer upon Vice-Admiralty 
 Courts existing in Canada under Imperial legislation, juris- 
 diction in any matter relating to navigation and shipping 
 within the territorial limits of the Dominion, and that any 
 such Act is to be given full effect so far as its provisions 
 are not repugnant to Imperial legislation (d). 
 
 Compare the cases which have arisen under this sub- 
 section with those under sub-section 1 2 ; and see also note 
 (xi) to the opening clause of section 91, ante, p. 350. 
 
 12. Sea coast and inland Fisheries. 
 Note the curious error into which Lord Chancellor Sel- 
 borne fell, in L'Union St. Jacques v. Belisle (e), in not apply- 
 
 () 14 S. C. K. 288. 
 
 (b) 4 S. C. R. 648. 
 
 (c) 7 Q. L. R. 380 ; 2 Cart. 378. 
 
 (d) See Chapter XI. ante, p. 230 ; also Todd, " Parl. Govt. Brit. Col./' 
 p. 149, et seq. 
 
 (e) L. R. 6 P. C. 31.
 
 THE B. X. A. ACT SEC. 91, S.-S. 12. 385 
 
 ing the word " fisheries " to " sea coast." He speaks of the 
 whole of the sea coast being put within the exclusive cog- 
 nizance of the Dominion legislature. 
 
 See notes to section 108, and cases there cited. 
 
 The different views that may be taken of the scope of 
 the various sub-sections of sections 91 and 92 are nowhere 
 better illustrated than in the litigation (/) which arose out 
 of the grant of a lease of a salmon fishery by the Minister 
 of Marine and Fisheries under authority of a Dominion Act. 
 The locus in quo included part of the Miramichi river, in 
 New Brunswick, above the ebb and flow of the tide, and 
 the lease in question purported to give ah exclusive right 
 to fish in that part of the river, regardless of the rights of 
 the riparian proprietor. After much litigation, the inva- 
 lidity of the lease, and of the clause of the Dominion Act 
 under which it was made, was finally declared by the Su- 
 preme Court of Canada. On the subject of the rights of 
 riparian proprietors generally, the opinions expressed by 
 the different judges are interesting and instructive ; but, 
 confining our attention to the constitutional point involved, 
 the Supreme Court held that the scope of this sub-section 
 1 2 is properly limited to 
 
 "subjects affecting the fisheries generally, tending to their regu- 
 lation, protection, and preservation; matters of a national and 
 general concern and important to the public, such as the forbid- 
 ding fish to be taken at improper seasons in an improper manner, 
 or with destructive instruments, laws with reference to the im- 
 provement and the increase of the fisheries ; in other words, all 
 such general laws as enure as well to the benefit of the owners 
 of the fisheries as to the public at large, who are interested in 
 the fisheries as a source of national or provincial wealth ; " 
 that the Dominion parliament could not interfere with 
 the rights of property (with all its incidents) vested in the 
 riparian proprietors whether the province, or individual 
 owners further than laws within the above limits might 
 
 (/) Terminating in The Queen v. Eobertson, 6 S. C. R. 5'2. 
 CAN. CON. 25
 
 386 THE B. X. A. ACT SEC. 91, S.-S. 13-15. 
 
 curtail their exercise: and that, having no power to inter- 
 fere directly, the Dominion parliament could not authorize 
 others to interfere with those rights. Such legislation 
 would be confiscation, not regulation. 
 
 13. Ferries between a Province and 
 any British or Foreign country or between 
 two provinces. 
 
 Such undertakings, as being of extra-provincial opera- 
 tion, fall naturally into the classes of matters confided to 
 tin- parliament of Canada, We need not, however, discuss 
 the sub-section at length here, as the whole subject will. 
 come up for consideration under sub-section 10 of 
 section 92. 
 
 14. Currency and Coinage. 
 
 See R. S. C. (1886) c. 30, which contains our legislation 
 upon this subject. In Lynch v. Canada X. W. Land 
 Co. ((/), Patterson, J. refers to this and the six following 
 classes as relating " to the regulation of the general com- 
 mercial and financial system of the country at large. 
 
 15. Banking, incorporation of banks, 
 and the issue of paper money. 
 
 The scope of this sub-section has Uvn under considera- 
 tion by the Judicial Committee of the Privy Council in Bank 
 of Toronto v. Lambe (k). It was there "earnestly contended" 
 that this sub-section operates to prevent a province from 
 levying, direct taxation (under section 92, sub-section 2i 
 upon a bank; but this view was negatived : 
 
 " Their Lordships think that this contention gives far too 
 wide an extent to the classes in question ; they cannot see how 
 the power of making banks contribute to the public objects of the 
 province where they carry on business can interfere at all with 
 
 (g) 19 S. C. R. 204; see notes to s-s. 19, post. 
 
 (!i) 12 App. Cas. 575; see Chapter X.. antf, p. '213.
 
 THE B. X. A. ACT SEC. *91, S.-S. 15. 887 
 
 the power of making laws on the subject of banking, or with the 
 
 power of incorporating banks Then it is suggested 
 
 that the legislature may lay on taxes so heavy as to crush a bank 
 out of existence, and so to nullify the power of parliament to 
 erect banks. But their Lordships cannot conceive that when 
 the Imperial parliament conferred wide powers of local self- 
 government on great countries such as Quebec, it intended to 
 limit them on the speculation that they would be used in an in- 
 jurious manner. People who are trusted with the great power 
 of making laws for property and civil rights may well be trusted 
 to levy taxes. There are obvious reasons for confining their 
 powers to direct taxes and licenses, because the power of indirect 
 taxation would be felt all over the Dominion ; but whatever 
 power falls within the meaning of class 2 is, in their Lordships' 
 judgment, what the Imperial parliament intended to give ; and 
 to place a limit on it, because the power may be used unwisely, 
 as all powers may, would be an error and would lead to insuper- 
 able difficulties in the construction of the Federation Act." 
 
 The provisions of the Dominion Banking Act (34 Vic. 
 c. 5 : R. S. C. c. 120), empowering banks to hold warehouse 
 receipts as collateral security for the re-payment of monies 
 advanced to the holders of such receipts, was held to be 
 /////// i- ires, and no interference with " property and civil 
 rights " further than the fair requirements of a banking 
 Act would warrant Merchants Bank v. Smith (i) ; with 
 which compare Beard v. Steele (j), cited in the notes to sub- 
 section -2. nnt?, p. 374. 
 
 In Windsor v. Commercial Bank (k), it was held in Xew 
 Brunswick that a provincial legislature has authority to 
 enact a law to impose a tax on the Dominion notes* held by 
 a bairk. as portion of its cash reserve, under the Dominion 
 Act relating to banks and 1 milking. The correctness of this 
 decision would seem to be settled by the judgment of the 
 Judicial Committee of the Privy Council in Bank of 
 Toronto v. Lanibe. 
 
 (!) 8 S C. R. 5L-2. (;') 34 U.' C. Q. B. 43. 
 
 (k) 3 Cart. 377 ; 3 Russ. & Geld. 420.
 
 388 THE B. N. A, ACT SEC. 91, S.-S. 1(5-20. 
 
 Regina v. County of Wellington (I), exhibits the ditt'rr- 
 ence in view which is still possible as to the scope of this 
 sub-section, the Court of Appeal for Ontario being equally 
 divided in opinion on the constitutional point involved 
 the validity of a Dominion Act providing for certain 
 matters in connection with the winding up of the defunct 
 Bank of Upper Canada. The facts are sufficiently^et forth 
 in note (xi), ante, p. 354, and see also notes to section 92, 
 sub-section 13. In the Supreme Court, Chief Justice 
 Ritchie was alone in upholding the legislation under this 
 sub-section. 
 
 16. Savings' Banks. 
 
 17. Weights and Measures. 
 
 18. Bills of Exchange and Promissory 
 Notes (i). 
 
 19. Interest (ii). 
 
 20. Legal tender. 
 
 (i) " Bills of exchange and promissory notes." This 
 sub-section is very frequently noted as limiting the other- 
 wise wide scope of sub-section 13 of section 92 " property 
 and civil rights in the province." The law upon this sub- 
 ject has recently been codified. See 53 Vic. c. 33. 
 
 (ii) " Interest." In Ross v. Torrance (m), it was held 
 that a provincial legislature has no power to authorize a 
 municipal corporation to charge a percentage increase on 
 over-due taxes, the so-called increase being but another 
 name for interest. The same question came before the 
 courts of Manitoba in the case of Sclmltz v. Winnipeg (ri), 
 where a similar provincial Act was also held invalid. It is 
 difficult, however, to agree with these decisi* >ns, as there is 
 
 (I) 17 O. A. R. 421; and in Sup.JCt. (sub nom. Quirt v. Reg.) 1!) 
 B.C. R. 510. 
 
 (m) 2 Cart. 352; 2 Legal News, 18(5. (n) 6 Man. L. R. 35
 
 THE B. X. A. ACT SEC. 91, S.-S. 19. 389 
 
 no necessary connection between interest and percentage, 
 and the power to impose a penalty (by whatever name it 
 may be called) to enforce prompt payment of municipal 
 taxes would seem to be clearly within the power of the 
 provincial legislature under section 92, sub-section 15. 
 
 See Royal Canadian Insurance Co. v. Montreal "NYa re- 
 housing^ Co. (o), in which it was held that a provincial 
 legislature may give a local corporation authority to borrow 
 money at any rate of interest already legalized as to other 
 persons who have the right to IKHTOW. Having reference 
 to the views of the Privy Council as expressed in Citizens 
 v. Parsons (p), it is submitted that this sub-section is lim- 
 ited to the regulation of the legal rate of interest through- 
 out the Dominion in the absence of special contract, or to the 
 passing of what are known as usury laws, in case, in the 
 general interests of the Dominion, it is deemed advisable 
 to put such laws upon the statute book. The question, 
 however, is one of some difficulty. Dominion legislation 
 upon the question is contained in R. S. C. c. 127. 
 
 Since the above was written, the report of the judgment 
 of the Supreme Court of Canada in Lynch v. The Canada 
 North- West Land Co. (q) has appeared. The cases above 
 noted are distinctly overruled and local legislation in 
 reference to the imposition of an additional percentage on 
 over-due taxes held not to fall within the scope of this sub- 
 section. 
 
 In reference to the general scope of the section Chief 
 Justice Ritchie says : 
 
 " It is obvious that the matter of interest which was intended 
 to be dealt with by the Dominion parliament was in connection 
 with debts originating in contract, and that it was never intended 
 in any way to conflict with the right of the local legislature to 
 deal with municipal institutions in the matter of assessments or 
 taxation, either in the manner or extent to which the local legis- 
 
 (o) 2 Cart. 361; 3 Lejjal News. 155. (p) 7 App.Cas. 96. 
 
 (q) 19 S. C. R. 204.
 
 390 THE B. X. A. ACT SEC. 91, S.-S. 19. 
 
 lature should authorize such assessments to be made ; but the 
 intention was to prevent individuals under certain circumstances 
 from contracting for more than a certain rate of interest and fix- 
 ing a certain rate when interest was payable by law without a rate 
 having been named." 
 
 Following a number of American authorities, quoted in 
 the judgment, the Chief Justice points out that municipal 
 taxes are not, per se, debts or contractual obligations, and 
 then proceeds : 
 
 "Does not the collocation of No. 19 with the classes of sub- 
 jects as numbered 18 and 20 afford a strong indication that the 
 interest referred to was connected in the mind of the legislature 
 with regulations as to the rate of interest in mercantile transac- 
 tions and other dealings and contracts between individuals, and 
 not with taxation under municipal institutions and matters 
 incident thereto ? The present case does not deal directly or 
 indirectly with matters of contract. The Dominion Act expressly 
 deals with interest on contracts and agreements as the first sec- 
 tion conclusively shows." 
 
 Referring to the rule that the true nature and character 
 of the legislation in the particular instance under discussion 
 must be considered (?), he points out that the Act there in 
 controversy had for its " primary matter " municipal taxa- 
 tion and not " interest." It' will be seen that the Chief 
 Justice founds the jurisdiction of a provincial legislature to 
 pass the Act in question upon section 92, sub-section 8. He 
 speaks of municipal matters as " necessarily" embracing the 
 levying of taxes for municipal purposes. We shall have t< > 
 refer to this again when dealing with that sub-section. 
 Here we have to note that the Chief Justice clearly points 
 out that the percentage increase is in reality an extra tax 
 and not " interest." Mr. Justice Tascherean characterizes 
 the addition as a "penalty," and Mr. Justice Patterson 
 says: 
 
 " We find that article associated with others numbered from 
 14 to 21, all of which relate to the regulation of the general com- 
 
 (;) See ante, p. '212.
 
 THE B. X. A. ACT SEC. 91, S.-S. 21. 391 
 
 naercial and financial system of the country at large 
 
 We must see what the thing really is. It is clearly something 
 which the Manitoba tax-payer who does not pay his taxes when 
 due is made liable to pay as an addition to the amount originally 
 assessed against him or his property. It is a direct tax within 
 the province in order to raise a revenue for provincial purposes, 
 and as such is indisputably within the legislative authority of 
 
 the province 
 
 " The imposition may, not improperly, be regarded as a 
 penalty for enforcing the law relative to municipal taxation, and 
 in that character it comes directly under article 15 of section 92." 
 
 The question whether such an imposition can in any 
 sense be properly called interest is referred to and it is 
 pointed out that under the impugned Act the addition is of 
 an arbitrary percentage not accruing de die in diem ; but, 
 without expressing a decisive opinion upon this point, the 
 opinion of the court, Mr. Justice Gwynne dissenting, was, 
 that such an imposition does not, at all events, fall within 
 the scope of this sub-section 19. 
 
 21. Bankruptcy and Insolvency. 
 
 The extent to which the Dominion parliament, by legis- 
 lation under this sub-section, is empowered to interfere with 
 " property and civil rights in the province," or with " pro- 
 cedure " in the courts of a province, came up for considera- 
 tion before the Judicial Committee of the Privy Council, 
 in the case of Gushing v. Dupuy (s), and was disposed of in 
 the judgment of that tribunal in these words : 
 
 " It was contended for the appellant that the provisions of 
 the Insolvency Act interfered with property and civil rights, and 
 was therefore ultra rirex. This objection was very faintly urged, 
 but it was strongly contended that the parliament of Canada 
 could not take away the right of appeal to the Queen from final 
 judgments of the Court of Queen's Bench, which, it was said, 
 was part of the procedure in civil matters exclusively assigned to 
 the legislature of the province. The answer to these objections 
 
 (.<) 5 App. Cas. 409.
 
 392 THE B. N. A. ACT SEC. 91, S.-S. 21. 
 
 is obvious. It would be impossible to advance a step in the 
 construction of a scheme for the administration of insolvent 
 estates without interfering with aaid modifying some of the 
 ordinary rights of property, and other civil rights, nor without 
 providing some special mode of procedure for the vesting, realiza- 
 tion, and distribution of the estate, and the settlement of the 
 liabilities of the insolvent. Procedure must necessarily form an 
 essential part of any law dealing with insolvency. It is there- 
 fore to be presumed, indeed it is a necessary implication, that the 
 Imperial statute, in assigning to the Dominion parliament the 
 subjects of bankruptcy and insolvency, intended to confer on it 
 legislative power to interfere with property, civil rights, and pro- 
 cedure within the provinces, so far a* <t ijcnend Ian- lyJutiui/ t<> 
 those subjects might affect tliem." 
 
 The words italicised are important as indicating the view 
 of the Committee as to the scope of the sub-section, as 
 authorizing, namely, a general insolvency or bankruptcy law. 
 There is now no such law in existence in Canada, and the 
 power of a provincial legislature, in the absence of Dominion 
 legislation, to pass laws for the equitable distribution of the 
 estate of a man whose assets are insufficient to meet his 
 liabilities, has necessarily arisen, and with this question has 
 also arisen the larger one as to the existence of " concur- 
 rent " powers of legislation in the Dominion parliament 
 and provincial legislatures; as to which see chapter X., n iitc, 
 p. 216, and note (xi) to section 91, ante, p. 350. Quirt v. 
 Reg. (0, in which a .^ftccial Act in reference to the winding 
 up of the affairs of a particular bank was upheld by the 
 Supreme Court of Canada as within the scope of this .sub- 
 section, is sufficiently referred to in the note last mentioned. 
 
 The Privy Council had had occasion to consider this 
 sub-section in an earlier case L'Union St. Jacques v 
 Be'lisle (u) which came before them in 1874. The scope of 
 the sub-section is clearly indicated in the judgment, where, 
 speaking of the various sub-sections of section 91, and of 
 
 (/) 19 S. C. R. 510. (n) L. R. 6 P. C. 31.
 
 THE B. N. A. ACT SEC. 91, S.-S. 21. 393 
 
 this nub-section in particular, the following language 
 occurs : 
 
 " There is no indication in any instance of anything being 
 contemplated, except what may be properly described as general 
 legislation ; such legislation as is well expressed by Mr. Justice 
 Caron when he speaks of the general laws governing Faillite, 
 bankruptcy and insolvency, all which are well known legal terms 
 expressing systems of legislation with which the subjects of this 
 country, and probably of most other civilized countries, are per- 
 fectly familiar. The words describe in their known legal sense 
 provisions made by law for the administration of the estates of 
 persons who may become bankrupt or insolvent, according to mlrs 
 and definitions inscribed lj law, including of coui'33 the conditions 
 on which that law is to be brought into operation, the manner 
 in which it is to be brought into operation, and the effect of its 
 operation." 
 
 The latter part of this extract supports what has been 
 said in an earlier chapter (v) in reference to bankruptcy 
 and insolvency being legal relations, the creation of which 
 out of any given combination of circumstances, is alone in 
 the power of the Dominion parliament. In the absence of 
 any such legislation, it is difficult in view of the scope at- 
 tributed to sub-section 13 of section 92 (w), " property and 
 civil rights in the province " to see on what ground pro- 
 vincial legislation, making provision for the distribution of 
 a man's estate among his creditors, and for his discharge 
 from liability upon his contractual obligations, can be im- 
 pugned. In view, however, of the difference of opinion 
 among the judges who have had to consider this question > 
 this view, we need hardly say, is put forward with much 
 diffidence. 
 
 In Crombie v. Jackson (x), that was held to be a valid 
 provision, in the Insolvent Act in force at that date (1874), 
 which obliged a person, making claim to any part of the 
 property of an insolvent transferred to the possession of his 
 
 (c) See ante, p. 215. () See the notes to that sub-section. 
 
 (x} 34 U. C. Q. B. 57;".
 
 394 THE B. N. A. ACT SEC. 91, S.-S. 21. 
 
 assignee under the -Act, to proceed, under the Act, by sum- 
 mary proceedings before a county judge. In our view, 
 these cases involving enquiry as to the validity of indi- 
 vidual sections of former Insovent Acts are not of much 
 practical importance ; they would assist of course in the 
 framing of a new Act ; but the important cases are those in 
 which provincial Acts or clauses of provincial Acts have 
 been impugned on the ground that their provisions are in 
 the nature of insolvency legislation. At the same time, in 
 the face of the divergence of view which exists upon the 
 subject, we should hardly be justified in overlooking the 
 former class of cases. 
 
 In Peak v. Shields (y), was involved the question of the 
 validity of the 136th section of the Insolvent Act of 1875, 
 which provided that a debtor, afterwards becoming an in- 
 solvent under the Act, who had fraudulently obtained goods 
 on credit knowing himself unable to meet his engagements, 
 might be subjected to imprisonment for two years unless 
 the debt arid costs were sooner paid. The opinions delivered 
 were very conflicting, some of the judges expressing the 
 view that the clause was legislation regarding procedure in 
 civil matters, others that it was properly described as in- 
 solvency legislation, and others again that it might be up- 
 held as criminal legislation. The broader question involved 
 in the case, namely, the power of a colonial legislature to 
 legislate respecting wrongs committed abroad, was treated 
 of in chapter IX., ante, p. 189. 
 
 In Re Eldorado Union Tstore Company (z), it was held 
 in Nova Scotia, and again in Shoolbred v. Clark (a), it was 
 \unaniinously held by the Supreme Court of Canada, that 
 \the Dominion Winding-up Acts are insolvency legislating 
 and are properly made applicable to companies incorporated 
 fender provincial Acts. In Allen v. Hanson (b), it was held 
 
 (y) 8 S. C. R. 579; 6 O. A. R. 63!) ; 31 U. C. C. P. 11 2. 
 (z) 6 Uuss. t t Geld., o!4. 
 () 17 S. C. R. -21;:-,. 
 (ft) IS S. C. R. 667.
 
 THE B. X. A. ACT SEC. 91, S.-S. 21. 395 
 
 that these Winding-up Acts also apply to companies incor- 
 porated under Imperial Acts, the power in such case being 
 limited, of course, to dealing with the realization and dis- 
 tribution of the assets in Canada. See the earlier case of 
 Merchants Bank v. Gillespie (c), in which it was held that 
 the Winding-up Act then in force, did not, upon the proper 
 interpretation of it, apply to such an Imperial Company. 
 
 In Clarkson v. Ontario Bank (d) and other cases re- 
 ported with it, the validity of certain legislation by the 
 Ontario legislature (R. S. O. c. 124 "an Act respecting as- 
 signments and preferences by insolvent persons ") was in 
 question. The court was equally divided. The opinions of 
 Hagarty, C.J.O., and Osier, J.A., who held the Act ultra 
 vires, proceed upon the broad ground thus expressed by the 
 Chief Justice : 
 
 'It is to all intents a law for the Judicial administration of 
 an insolvent's estate by means unknown to the common law, 
 and conferring rights on an assignee in addition to, and beyond 
 all rights assigned to him by the debtor." 
 
 On the other hand, Burton and Patterson, JJ.A., who 
 upheld its validity, support their opinions by pointing 
 out that the various clauses, examined in detail, deal with 
 matters within the legislative competence of a provincial 
 legislature under sub-section 13 of section 92. propert}' and 
 civil rights. In view of this difference of opinion it can be 
 easily understood, therefore, that the view we have 
 attempted to express in an earlier chapter is advanced 
 with much mistrust. In all these cases there will 
 have to be a pronouncement by the Judicial Committee 
 of the Pi-ivy Council or an amendment to the B. N. A. Act, 
 before the position of impecunious debtors is satisfactorily 
 settled. 
 
 In Clarkson v. Ontario Bank, Burton and Patterson, 
 JJ.A., both expressed some doubt as to section 9 of the Act 
 then in question, which section did not itself come im- 
 
 (c) 10 S. C. R. 812. (d) 15 O. A. R. 1C6.
 
 396 
 
 THE B. X. A. ACT SEC. 91, S.-S. 21. 
 
 
 mediately in question in the case. It provided that an 
 assignment, under the Act, for the general benefit of 
 creditors, should take precedence of all judgments and 
 executions not completely executed by payment : and 
 afterwards, in Union Bank v. Xeville (e), it was held by 
 Chief Justice Sir Thomas Gait, to be v.Uru vires, as bein<-- 
 
 O 
 
 insolvency legislation. 
 
 " The question now is whether or not the assignee is entitled 
 to take these goods out of the possession of the sheriff. It is 
 manifest that the assignor himself has no such authority, and 
 it appears to me that, that being the case, he could confer no 
 such right on his assignee. By the words of the statute itself, 
 it is plain that the provisions are to have effect only in cases of 
 insolvent debtors or persons on the verge of insolvency ; con- 
 sequently, to attribute to an assignment under the statute a 
 power to remove goods in the hands of the sheriff under execu- 
 tion against an insolvent, must, in my opinion, be considered as 
 an Act relating to "bankruptcy and insolvency." 
 
 To the same effect from the other standpoint we 
 may note the case of Kinney v. Dudman (/'), decided by 
 the Nova Scotia Supreme Court, upholding the validity of 
 section 59 of the Insolvent Act of 1869, which provided 
 that a judgment not completely executed, should as against 
 an assignment under that Act, create no lien or privilege 
 upon the property of the insolvent. 
 
 In The Queen v. Chandler (//), it was held by the 
 Supreme Court of New Brunswick, that those provisions, 
 in what are commonly known as Indigent Debtors Art-- 
 providing for the examination of a confined debtor and for 
 his discharge from imprisonment upon proof of indigence, 
 and of the absence of fraudulent dealings with his property. 
 cannot be passed by provincial legislatures. This 
 arose in 1st IS, and the judgment of the court was founded 
 upon views, as to the wide scope of this sub-section, which 
 cannot in view of the later authorities be now considered 
 
 (?) 21 O. K. Iv2. (/) 2 Russ. & Ches. 19 ; 2 Cart. 412. 
 
 () 2 Cart. 421 : 1 Hannay oof..
 
 THE B. N. A. ACT SEC. 91, S.-S. 21. 397 
 
 a correct exposition of the law. The words " bankruptcy 
 and insolvency " were interpreted as covering all legisla- 
 tion as to impecunious debtors even entirely apart from 
 any system of bankruptcy and insolvency legislation, 
 and, in this .view, the Act in question was held to be 
 an insolvent Act (h). In another aspect, however, the 
 case may well be referred to, as being one of the earliest 
 decisions emphatically enunciating the doctrine that, 
 under the B. N. A. Act, it necessarily devolves upon 
 courts of justice to inquire into the validity of post-Con- 
 federation Canadian legislation. The fact that the, 
 Oovernor-General had not disallowed the provincial Act in 
 question, was decisively held by the court to be immaterial, 
 upon'an inquiry as to its legal validity^ 
 
 Upon the question as to the scope of this sub-section 
 21, The Queen v. Chandler has never been overruled, but, in 
 subsequent cases in New Brunswick, the wide view upon 
 which the decision in the early case proceeded has evidently 
 and necessarily been modified. Prior to the Union, the 
 Xew Brunswick legislature had passed an Act extending 
 the gaol limits an Act affecting confined debtors. This 
 Act was not to come into operation until April 1st, 1868, 
 but before that date, and after Confederation, it was 
 repealed by a subsequent enactment. The Xew Brunswick 
 Supreme Court intimated that there was nothing in the 
 point that the Act was one relating to insolvency, and that 
 therefore the provincial legislature was within its powers 
 in repealing it (i). And, again, in Armstrong v. McCutchin 
 ( j), the Supreme Court of New Brunswick held that an 
 Act of the legislature of that province abolishing imprison- 
 ment for debt was not ultra vires, as respects a party not 
 shown to be a trader, subject to the Dominion Insolvent 
 Act. Ritchie C.J., says : 
 
 (/() See the remarks of Mr. Justice Burton in Clarkson v. Ontario 
 Bank, ubi supra ; and see also notes to sec. 92, s.-s. 14, post, 
 (i) McAlmon v. Pine, 2 Cart. 487 ; 2 Pug 44. 
 ( j) 2 Cart. 494 ; 2 Pug. 381.
 
 398 THE B. X. A. ACT. SEC. 91, S.-s. 21. 
 
 " But while legislation on the subject of imprisonment for 
 debt may be, under some circumstances, involved in legislati'-n 
 on bankruptcy and insolvency, and therefore fit matter to be 
 dealt with by the Dominion parliament, it by no means follows 
 that in no circumstances can a local legislature legislate with 
 reference thereto. On the contrary, there may be many cases 
 where the abolition or regulation of imprisonment for debt is in 
 no way mixed up with or depending on insolvency. In this case, 
 in which application has been made for discharge under a local 
 Act, the party does not appear by the affidavits to be in anywise 
 amenable to the Insolvent Act of 1869, nor a party who could 
 be brought within the operation of that Act ; nor, so far as he is 
 concerned, or as applicable to his case, are the clauses of the 
 local Act under which he seeks the discharge, in any way in conflict 
 with that Act. The defendant simply appears in the position of 
 a person not subject to the Insolvent Act of 1869, and whom 
 the legislature has declared shall not be proceeded against for 
 recovery of a debt by imprisonment, without reference to any 
 question of solvency or insolvency ; therefore there is no reason 
 why he should not receive the benefit of an Act passed by the 
 local legislature for regulating the procedure in civil suits in 
 relation to the civil rights of parties in the recovery of debts. 
 So far therefore as the defendant is concerned and we limit 
 our decision to the particular circumstances of this individual 
 case there is no reason why the Act should not have full force 
 and effect. Regina v. Chandler, which was so much pressed on 
 us, is, we think, entirely distinguishable from the present case." 
 
 See also, Re De Yeber (k), in which an Act of the Xe\v 
 Brunswick legislature, providing that as against an assignee 
 of the grantor under any law relating to insolvency, a l>ili 
 of sale should only take effect from the date of its tiling. 
 \vas held to be inh-n o'/rx. The provinces down ly the 
 -MM are not at one upon this question. In Johnson v. 
 I'oyntz (I), it was held by the Nova Scotia Courts that a 
 provincial legislature could confer upon a newly created 
 provincial court, jurisdiction to entertain an application for 
 
 (k) 21 N. B. R. 401 ; 2 Cart. 552. 
 (I) 2 Cart. 410; 2 Russ. A- Geld. 1J3.
 
 THE B. N. A. ACT SEC. 91, S.-S. 21. 399 
 
 the discharge of an insolvent debtor under a provincial Act 
 passed prior to Confederation, such legislation, it was held, 
 not coming within this sub-section ; while, on the other 
 hand, in the case of Munn v. McCannell (m), the Supreme 
 Court of Prince Edward Island held to be ultra vires, a 
 provision in the Indigent Debtors Act of that province, 
 providing for the discharge of an insolvent debtor. 
 
 The language above quoted of Sir Montague Smith in 
 delivering the judgment of the Privy Council in Gushing v. 
 Dupuy 00 would seem to cover the various matters dis- 
 cussed in the above cases. As relating to " civil rights in 
 the province " a provincial legislature has full power to 
 legislate thereon, subject to the operation of any general 
 insolvency legislation passed by the Dominion parliament. 
 
 In Murdoch v. Windsor & Annapolis Railway Co. (o), 
 Mr. Justice Ritchie, sitting as Equity Judge, held invalid, 
 as an infringement upon the powers of the Dominion par- 
 liament under this sub-section, an Act of the Nova Scotia 
 legislature, entitled "An Act to facilitate arrangements 
 between Railway Companies and their creditors." The Act 
 provided that the company might propose a scheme of 
 arrangement between the company and its creditors, and 
 tile the same in court, and that thereupon the court might, 
 on application by the company, restrain any action against 
 the company, upon such terms as such court might see fit. 
 The Act also provided that notice of filing the scheme 
 should be published, and that thereupon no process should 
 1 H.' enforced against the company without leave of the court. 
 Mr. Justice Ritchie considered the Act as one which could 
 have reference only to a company which was insolvent. 
 That a company, having become insolvent, should have the 
 power, in order to settle with all its creditors alike, of de- 
 claring itself such, and that on such declaration the remedies 
 of creditors should be suspended, would not be unreason- 
 
 (m) 2 P. E. K. (>,) 5 App. Gas. 409. 
 
 \0j 3 Cart. 368; Russ. Eq. Rep. 137.
 
 400 THE B. X/A. ACT SEC. 91, S.-S. 21. 
 
 able ; but that the legislature should give to a company, 
 solvent and able to meet all its liabilities, the power of 
 staying all proceedings on the part of their creditors, by 
 merely presenting and filing a scheme of arrangement with 
 them, would be incomprehensible. The legislation, in his 
 view, must have been passed on the assumption of the in- 
 solvency of the company. And, upon this view of the Act, 
 he held it ultra vires. The same judge held in Re The 
 Wallace-Heustis Grey Stone Company (p), that the Nova 
 Scotia Winding-up Act, was infra vires. It made provision 
 for the winding-up of any company where a resolution to 
 that effect was passed by the company, or where the court 
 so ordered at the instance of a contributor, on it being made 
 to appear that such order was just and equitable. The Act 
 could be enforced, although no debts were due by the com- 
 pany, but could not be called into operation by a creditor. 
 Such an Act, it was held, had no necessary relation to 
 bankruptcy and insolvency, but was an Act respecting pro- 
 perty and civil rights in the province. 
 
 The decision in Murdoch v. Windsor & Annapolis Rail- 
 way Co. must be considered overruled by the judgment in Re 
 Windsor & Annapolis Railway (pp), in the Nova Scotia 
 Supreme Court, in which the same Act was upheld so far 
 as it provided for the confirmation of a scheme, propounded 
 by the company under the Act, for cancelling certain 
 debentures, and for the allotment of new stock in lieu 
 thereof bearing a low rate of interest. The decision, how- 
 ever, it should be noted, is placed upon the ground that the 
 Windsor & Annapolis Railway Company was a local work 
 or undertaking within the meaning of section 92, sub-sec- 
 tion 10, and that so far as any such local undertaking is 
 concerned, the impugned Act was within the legislative 
 competence of the provincial legislature, that the scheme 
 propounded by the company had no relation whatever to 
 
 (p) 3 Cart. 374 ; Russ. Eq. Rep. 461. 
 (pp) 3 Cart. 387 ; 4 Russ. & Geld. 312.
 
 THE B. X. A. ACT SEC. 91, S.-S. 22. 401 
 
 the insolvency of the company, and was simply a scheme 
 for changing the form of the stock. In this view of the 
 case, reliance was placed upon L'Union St. Jacques v. Be- 
 lisle (q), and the Act in its relation to local undertakings 
 upheld upon the authority of that case. 
 
 We may also refer to Re Briton Medical and General 
 Life Association (r\ cited in notes to section 91, ante, p. 
 o-ki as the Act there referred to might, perhaps, be said to 
 fall within this sub-section 21. The deposit required by 
 that Act to be made by all corporations desiring to do 
 business in Canada, was held to be, upon the true construc- 
 tion of the Act, a special fund applicable in case of insol- 
 vency for the benefit of Canadian policy holders only. 
 
 In McClanaghan v. St. Ann's Mutual Building So- 
 ciety (*), it was held that the Dominion parliament has no 
 power to pass aji Act providing for the liquidation of all 
 building societies, whether solvent or not, in the province of 
 Quebec. 
 
 In Cote" v. Watson (t), it was held by the Superior Court 
 of Quebec that a provincial legislature has no power to 
 impose a tax on the sum realized from the sale of an insol- 
 vent s effects, or to impose upon an assignee under that 
 Act, or his agent, any penalty for not taking out a license 
 to sell by auction the goods of the bankrupt. In view of 
 Bank of Toronto v. Lambe, this case cannot be considered 
 law. 
 
 22. Patents of invention and dis- 
 covery. 
 
 We have already had occasion to point out that this 
 sub-section embraces what may now be considered almost 
 
 (q) L. R. 6 P. C. 31. See notes to s. 92, s-s. 16. 
 (r) 12 O. R. 441. 
 
 (s) 2 Cart. 237; 24 L. C. Jur. 162. 
 (t) 2 Cart. 343 ; 3 Q. L. R. 157. 
 CAN. CON. 26
 
 402 THE B. X. A. ACT SEC. 91, S.-S. 22. 
 
 a distinct branch of jurisprudence patent law (,). The 
 language of the Judicial Committee in Gushing v. Dupuy i O, 
 as to the necessity for regulating "procedure" in connec- 
 tion with the handling of estates under bankruptcy and 
 insolvency^legislation, applies with almost equal force to 
 legislation under this sub-section 22. At the same time \\c 
 
 o 
 
 have to note that comparatively few cases have arisen 
 calling for a decision as to the line of division which 
 properly marks out the sphere of provincial legislative 
 authorityjin connection with patent litigation, but so far as 
 the decisions go they uphold the authority of the Dominion 
 parliament to regulate procedure in such cases. 
 
 In Aitcheson v. Mann (w), the Queen's Bench Divisional 
 Court held, affirming the decision of Boyd, C., that section 24 
 of the Patent Act of 1872, which requires that^the trial of an 
 action for the infringement of a patent must be tried in the 
 court nearest the defendant's residence or place of business, 
 was intra vires. 
 
 In Mousseau v. Bate (x), it was held that proceedings in 
 the nature of a Sci. Fa. to set aside letters patent of inven- 
 tion issued under a Dominion statute, cannot be instituted 
 in the name of a provincial Attorney-General, but can 
 only legally be brought by the Attorney-General for Canada. 
 In connection with this case, reference should also be had to 
 Regina v. Pattee (y), in which the late Master in Chambers 
 (Mr. Dalton, Q.C.), held that the Attorney-General of 
 Ontario was the proper officer to grant a fiat for the issue 
 of a writ of Sci. Fa. In another view, the case is note- 
 worthy as containing one of the earliest expressions of 
 opinion in reference to the necessary co-extension of tin- 
 executive and legislative functions of a provincial govern- 
 ment. So far as concerns this sub-section, however, the 
 judgment is expressly limited to the case of a subject domi- 
 
 (u) Ante, p. 236. (./) -27 L. C. Jur. 153 ; 3 Cart. 341. 
 
 (v) 5 App. Cas. 409. (</) 5 P. R. (Ont.) 2!i'2. 
 
 (ic) 9 P. R. (Ont.) 473.
 
 THE B. N. A. ACT SEC. 91, S.-S. 23. 403 
 
 ciled in the province, seeking to avail himself of the peculiar 
 privileges of the Crown, in order to the assertion of his own 
 private interests, and the Master in Chambers desired that 
 he should not be understood as speaking of a case where 
 the Crown itself seeks to avoid a patent. 
 
 In Re The Bell Telephone Co. (z), it was held to be a 
 proper exercise of the powers of the Dominion parliament 
 under this Act, to provide that in case of dispute arising 
 as to the validity of a patent, such dispute should be settled 
 by the Minister of Agriculture, or his Deputy, whose 
 decision should be final. It was held that by the Act a 
 court or judicial tribunal was constituted, and that the Do- 
 minion parliament had power to constitute such a court, 
 under section 101 (see post). This question has been already 
 discussed to some extent in chapter XL, ante, p. 230, and 
 further reference to it will be found in the notes to section 
 101. 
 
 23. Copyrights. 
 
 This is hardly the place to discuss the somewhat peculiar 
 position in which, under the combined operation of Imperial 
 and Canadian legislation, Canada is placed in relation to 
 this question of copyright. Our power along this line 
 is subject to limitations owing to the existence of Imperial 
 legislation in force in Canada. Smiles v. Belford (), in 
 which the situation is graphically described by Moss, J.A. 
 (afterwards C.J.O.), is of importance to our subject in 
 another aspect, namely, as affirming the legal supremacy of 
 the Imperial parliament, even over colonies possessed of legis- 
 latures of their own, and as limiting the term " exclusive " 
 in this section 91 of the B. N. A. Act, as referable merely 
 to tlic power of the Dominion parliament as distinguished 
 from that of the provincial legislatures (6).. It is hardly 
 
 (2) 7 O. R. 605. 
 
 (a) 1 O. A. K. 436 ; see also Anglo Canadian Music Publishers v. 
 Suckling, 17 O. R. 239. 
 
 (6) See ante, p. 67, and note (x) to sec. 91, ante, p. 350.
 
 404 THE B. X. A. ACT SEC. 91, S.-S. 24. 
 
 conceivable that any question can arise as between the 
 Dominion and the provinces upon this subject, except, 
 perhaps, in relation to " procedure " in copyright litigation, 
 should the Dominion parliament legislate along this line. 
 See note to the last sub-section (22). 
 
 24. Indians and lands reserved for the 
 Indians. 
 
 The proclamation ((/) which followed upon the Treaty 
 of Paris contained provisions designed to protect the al>- 
 rigines "in the possession of such parts of our dominions 
 and territories as, not having been ceded to us. arc reserved 
 to them, or any of them, as their hunting gr< muds." In the 
 celebrated case of the St. Catharines Milling Co. v. The 
 Queen (b), it was held by the Judicial Committee of the 
 Privy Council, that the interest of the Indians under this 
 \ proclamation was " a personal and usufructuary right, 
 
 dependent upon the good will of the sovereign 
 
 There has been all along vested in the Crown a substantial 
 and paramount estate underlying the Indian title, which 
 became a jpfenum dominium whenever that title was sur- 
 rendered or otherwise extinguished." From time to time 
 Indian tribes had surrendered their title to portions of this 
 reserved territory, usually upon terms which secured to 
 them a more definite right of occupation of some small sub- 
 division of it. These smaller tracts were known as "Indian 
 reserves." In Church v. Fenton (c), it was held by all our 
 courts that the above sub-section 24 applied only to these 
 and not to the larger indefinite areas covered by the 
 proclamation of 17(33: but this view is distinctly i 
 tived by the Committee in the case above referred to. 
 Under the holding of that tribunal, the power of the 
 Dominion government is a power of legislation and admin- 
 
 (o) See Houston, " Const. Doc. of Canada," p. 67. 
 
 (b) 14 App. Gas. 46. 
 
 (c) 5 S. C. R. 239 ; 4 O. A. R. 159 ; 28 U. C. C. P. 384.
 
 THE B. X. A. ACT SEC. 91, S.-S. 24. 405 
 
 istration in respect of Indians, and the lands reserved for 
 them over both these larger areas and the more restricted 
 areas of the " Indian reserves " (so called) until the surren- 
 der and extinguishment of the Indian title. The chief 
 matter in dispute in the case was as to the beneficial interest 
 in these lands after such surrender and extinguishment. 
 The Committee gave effect to the contention put forward 
 on behalf of the province of Ontario, that to the provinces 
 accrued the right to " a beneficial interest in these lands, 
 available to them as a source of revenue whenever the 
 estate of the Crown is disencumbered of the Indian title." 
 Upon such surrender they fall into the category of " public 
 lands belonging to the province," mentioned in sub-section 
 5 of section 92. It would appear, however, that where, 
 upon a surrender, certain rights of hunting and fishing 
 throughout the surrendered territory were still reserved to 
 the Indians, "with the exception of those portions of it which 
 may, from time to time, be required or taken up for pur- 
 poses of settlement, mining, lumbering, or other purposes," 
 the question of " the right to determine to what extent, and 
 at what periods, the disputed territory, over which the 
 Indians still exercise their avocations of hunting and fishing, 
 is to be taken up for settlement or other purposes," is still 
 an open one. In that case, there was no pretence of a 
 reservation to the Indians of any right to timber in the 
 territory surrendered, and a permit to cut timber issued 
 by the Dominion government was held invalid. It 
 ocelli's to one, however, that it would be an easy 
 matter to arrange such terms of conditional surrender, 
 with such reservations of beneficial interest to the Indians, 
 as would practically prevent the provinces from dealing 
 with the land ; but whatever is surrendered accrues to the 
 benefit of the province in which the territory is situated. 
 Subject to the burden of the Indian title (with whatever 
 legislative and administrative powers exist in the Dominion 
 government by reason of the existence of that Indian title) 
 the beneficial interest in these lands passed on Confedera-
 
 406 THE B. N. A. ACT SEC. 91, S.-S. 25. 
 
 tion to the provinces, the fee, of course, remaining in the 
 Crown. See further notes to section 102. et seq. 
 
 25. Naturalization and aliens. 
 
 By the Imperial Naturalization Act, 1870, it is enacted 
 that " all laws, statutes, and ordinances which may be duly 
 made by the legislature of any British possession for im- 
 parting to any person the privileges or any of the privileges 
 of naturalization to be enjoyed by such person within the 
 limits of such possession, shall within such limits have the 
 authority of law. . 
 
 While, therefore, as between the Dominion and the 
 provinces, this subject is, by this sub-section, exclusively 
 with the former, no legislation by the parliament of Canada 
 can make an alien a British subject quoad the Empire : it 
 can do no more than give him, within the confines of the 
 Dominion, the privileges or some of the privileges of natu- 
 ralization. Where any question arises as to the national 
 status of a person domiciled in a colony, such question 
 must be determined by the law of England, whilst the 
 rights and liabilities incident to that xhitu* must, in 
 Canada, be determined by laws passed by the parliament 
 of Canada (d). The power of a provincial legislature to 
 make laws relative to " property and civil rights in the 
 province " must obviously be read subject to Dominion 
 legislation under this sub-section. It is for the Dominion 
 government to say whether or not, within Canada, an alien 
 is to lie under any disability and that government can 
 insist that throughout the Dominion an alien may, upon 
 conforming to the provisions of any Act in that behalf 
 passed by the parliament of Canada, become, qinmil 
 Canada, a naturalized British subject and enjoy all the 
 privileges accorded by the laws of the provinces to British 
 subjects. 
 
 (d) Donegani v. Donegani, 3 Knapp, P. C. C. 63 ; re Adam, 1 Moo. 
 P. C. C. 460.
 
 THE B. N. A. ACT SEC. 91, S.-S. 26, 27. 407 
 
 Connected with this subject is the question of the terri- 
 torial operation of Canadian legislation discussed in 
 chapter IX., ante, p. 185, et seq. Just as Canadian legisla- 
 tion cannot invest an alien with the character of a British 
 subject outside Canada, so it cannot visit upon natural born 
 British subjects resident in Canada any penalty for acts 
 committed without the Dominion ; for, without the 
 Dominion, they are quoad Canada British subjects only 
 and their status as citizens of Canada is nought. A for- 
 t'nn't, legislation in reference to the acts of aliens abroad 
 would be invalid. 
 
 26. Marriage and Divorce. 
 
 Compare section 92, sub-section 12. No case has arisen 
 in our courts in reference to the line of division between 
 the Dominion parliament and the local legislatures on this 
 subject of marriage ; but this sub-section and sub-section 
 12 of section 92, will be found frequently compared and 
 contrasted, and inferences drawn therefrom as to the pro- 
 per principles of interpretation to be applied to the various 
 other sub-sections of sections 91 and 92 (e). Judging from 
 provincial legislation since Confederation, it would appear 
 to be conceded that the scope of the first branch of this sub- 
 section is limited to legislation as to the status merely of 
 husband, wife, and issue. So far, the scope of the second 
 branch has been limited in practice to private bills legisla- 
 tion. No court for the trial of matrimonial causes has yet 
 been established. 
 
 27. The Crimiual Law, except the 
 Constitution of Courts of Criminal Juris- 
 diction, but including the Procedure in 
 Criminal Matters. 
 
 It will be advisable to defer consideration of the excep- 
 tion the constitution of courts of criminal jurisdiction 
 
 (e) See Citizens v. Parsons, 7 App. Cas. 96 ; City of Fredericton v. 
 The Queen, 3 S. C. R. 505.
 
 408 THE B. X. A. ACT SEC. 91, S.-S. -27. 
 
 until we reach sub-section 14 of section 92, and to con tine 
 our remarks upon this sub-section to "criminal law" and 
 "procedure in criminal matters." The subject has been 
 already adverted to in chapter XL, ante, p. 235, et seq., to 
 which reference should be had. 
 
 In its widest and strictly legal sense (f) the term 
 "criminal law" would include all that class of matters 
 offences against the provisions of provincial law covered 
 by sub-section 15 of section 92, and, the jurisdiction being 
 in each case exclusive, the meaning of the term must be 
 here limited. 
 
 It will facilitate our enquiry if we refer shortly to the 
 sources of our criminal law using that term in its widest 
 sense and to the position at the time the Union took effect. 
 As the basis we take the common law of England. In 
 chapter V. we have endeavored to point out to what extent 
 English common and statutory law was' deemed to be in- 
 troduced into the various provinces of British North 
 America, As to the common law of England relating t<> 
 crimes, their trial and punishment, no discussion was 1 1 
 sary. That law was undoubtedly in force in the maritime 
 provinces and in Quebec as then constituted. By the 
 Quebec Act, 1774 (g), the criminal law of England was t- 
 continue to be administered in the province, and lie "ob- 
 served as law as well in the description and quality of the 
 offence as in the method of prosecution and trial, and the 
 punishments and forfeitures thereby inflicted." As was 
 pointed out, in Upper Canada the question of applicability 
 seems not to have been considered open in determining 
 the operation within that province of English criminal law 
 (h\ but in the maritime provinces this question had to be 
 considered in all cases, criminal as well as civil. 
 
 But, the "criminal law of England " had become in those 
 'lays largely statutory, and no distinction in principle can 
 
 (j) See Reg. v. Boanlnvvu and Rag. v. Roddy, post. 
 (g) 14 Geo. III. c. 83. 
 (h) See ante, p. 123.
 
 THE B. X. A. ACT SEC. 91, S.-S. 27. 409 
 
 be pointed out as separating statutory criminal law from 
 the old common law upon the subject of crimes, their trial 
 and punishment. All sorts of regulations were laid down 
 to guide the daily conduct of men, and their observance 
 was enforced by penalties, inflicted in personam or in rem> 
 until the severity of English law became notorious. As Sir 
 Thomas May points out U), the criminal code down to the 
 reform era of the 'thirties was largely protective of the 
 rights of property, regardless, in such case, of any question 
 of moral turpitude. Such was the law introduced into the 
 colonies of British North America, and down to Confedera- 
 tion there existed no necessity for distinguishing the various 
 parts of the criminal code, whether as passed for the put- 
 ting down of public wrongs or as directed toward the 
 upholding of private rights. " Crimes" was a most com- 
 prehensive term, and its definition by Richards, C.J., in 
 18U8 (j) may be taken as a correct exposition of the law 
 as it stood at the date of Confederation : 
 
 " When a party may be punished for an ofi'ence against a 
 public Act of a public nature, for which he may be tried sum- 
 marily and a penalty imposed, the proceeding to recover such a 
 penalty is a criminal proceeding, . . . then the offence for 
 which the penalty was imposed must be a crime.'" 
 
 This, as we have said, covers enactments such as those 
 which, by the express provision of sub-section 15 of section 
 !2. a provincial legislature may pass "for enforcing any 
 law of the province made in relation to any matter coming 
 within any of the classes of subjects enumerated in this 
 section." So far as concerns legislation since Confedera- 
 tion, it may be now taken as clearly established that pro- 
 vincial penal laws within the limits defined are not 
 "criminal law," nor is the procedure for their enforcement 
 "procedure in criminal matters" within the meaning of 
 this sub-section 27. As to the " common law " upon the 
 
 10 May's " Const. Hist, of Eii^." Vol. III. p. 393, ct seq. 
 (j) In Re Lucas & M'Glashan, 27 U. C. Q. B. 81 ; see also Reg. v. 
 Roddy, 41 U. C. Q. B. 291.
 
 410 THE B. X. A. ACT SEC. 91, S.-S. 27. 
 
 subject of crimes, their trial and punishment, there seems 
 to be a consensus of judicial opinion that, under this sul >- 
 section this became so far as still extant in the different 
 provinces a body of Dominion law. But how about the 
 great body of provincial statutory " criminal " law as it 
 would then be properly termed in force in the different 
 provinces at Confederation ? Upon this question there is 
 no expression of judicial opinion, so far as we have been 
 able to find, and yet it seems to us clear that section 129 of 
 the B. N A. Act (see post), makes a definite division of 
 that whole body of existing " criminal " law, and that, 
 without doubt, whatever enactments prior to Confederation 
 could now, were they non-existent, be passed by a pro- 
 vincial legislature must, since the Union, be deemed to be 
 a body of " provincial " law, and the procedure for their 
 enforcement must be regulated by provincial statutes 
 applicable, generally, to prosecutions under post-Con- 
 federation provincial Acts. We may say, also, that much 
 may be advanced in favor of the view that even the com- 
 mon law of England upon this subject so far as still 
 extant in Canada is capable of division along a similar 
 line (A*), but judicial opinion is, as we have said, in favor of 
 the view that this is by the B. N. A. Act assigned in its 
 entirety to the parliament of Canada. We now proceed to 
 examine the cases which have involved consideration of 
 this sub-section, first, however, remarking that the notes 
 to sub-section 15 of section 92 should be read in connection 
 with what is here laid down, for nearly every case lias 
 involved a comparison between that sub-section and this. 
 
 In Reg. v. Boardman (I), Chief Justice Richards, 
 delivering the judgment of the court, refers to a passage 
 from t'.ie judgment of Martin, B., in Attorney-General v. 
 Radloff (//('), in which that judge, speaking of " the intrin- 
 
 l/.i Seeder Osier, J.A., in Retf. v. Wason, 17 O. A. R. '221, at p. '241. 
 (/i 30 IT. C. Q. B. 553. 
 (m) 10 Exch. !I6.
 
 THE B. X. A. ACT SEC. 91, S.-S. 27. 411 
 
 sic and essential nature of the act itself " smuggling 
 says " that it cannot be denominated a ' crime ' according 
 to the ordinary and common usage of language, and the 
 understanding of mankind." Chief Justice Richards says : 
 
 " I refer to this language ... as indicating the popular 
 idea of criminal law, in which view it may have been used in the 
 statute." 
 
 but, without enlarging further upon this suggestion, he 
 held that, at all events, whatever comes properly within 
 sub-section 15 of section 92 must be excluded from the 
 " criminal law " confided to the parliament of Canada by 
 this sub-section 27. A clause in the Liquor License Act of 
 Ontario directed against any person who, having violated 
 the Act, should compromise the offence, and against any per- 
 .son who should be a party to such compromise, was upheld. 
 But in Regina v. Lawrence (n) it was held that a provision 
 of the same Act, that any person who, in a prosecution 
 under the Act, tampers with a witness, should be guilty of 
 an offence under the Act, and liable to a penalty, and regu- 
 lating the mode of enforcing such penalty, was ultra vires } 
 of a provincial legislature, because the offences dealt with 
 are offences at common law. Harrison, C.J., says : 
 
 " There are many acts, not being crimes, which are triable 
 before, and punishable by, magistrates, which, although called 
 offences, are not crimes, and which by the proper legislative 
 authority may be made the subject of summary magisterial 
 jurisdiction, either with or without appeal, but these are not to 
 be mistaken for a^ts in themselves crimes, and the subject of 
 indictment, and of conviction under indictment, either at the 
 common law or by statute. Such acts as these may by the pro- 
 vincial legislature be made the subject of punishment by fine, 
 penalty or imprisonment, when this is done for the purpose of 
 enforcing any law of the province made in relation to any matter 
 coming within any of the classes of subjects exclusively assigned 
 to the provincial legislatures. . . . The constitutionality 
 of this clause is called in question because it is affirmed that the 
 
 () 43 U. C. Q. B. 164, affirming judgment of Gwynne, J-
 
 412 THE B. X. A. ACT SEC. 91, S.-S. 27. 
 
 acts with which it deals are, and each of them is, the subject of 
 an indictment by the criminal (sic j law, and so not the subject 
 of the exercise of power by the provincial legislature. If this 
 contention be well founde 1 in fact we are of opinion that it is 
 a good contention in law." 
 
 Upon a review of the authorities it was held that the 
 offence legislated against by the Act in question, was an 
 offence which might be the subject of an indictment at 
 common law, and was therefore beyond the power of a 
 provincial legislature. Regina v. Boardman, and Regina 
 v. Lawrence are hard to reconcile. The former can be 
 upheld only on the view that the compounding of a misde- 
 meanor is not an offence by the common law, and can,, 
 therefore, for the purpose of securing proper enforcement 
 of a provincial law, be made punishable by provincial 
 legislation. 
 
 To the like effect, in Regina v. Shaw (o) it was held by 
 the Court of Queen's Bench in Manitoba, that keeping a 
 gambling-house is an offence against the common law. and 
 that consequently it can only be dealt with by the parlia- 
 ment of Canada, and cannot be made an offence by a 
 provincial Municipal Act or by a by-law passed under the 
 authority of such Act. Mr. Justice Killam says : 
 
 "It was an offence at common law to keep a gambling 
 house. ' This offence, it appears to me, comes within the subject 
 of criminal law referred to in section 91, sub-section 27 of the 
 15. N. A. Act. That term must, in my opinion, include erer;/ 
 <t<-t <>r tiinixxion irliii It ir/ix rt'i/nnlcil //.s crintinnl In/ the Iturx of tin' 
 {irorim-fH irlien tin- Ininn Ad ir/is //.vW, and which was not 
 merely an offence against a by-law of a local authority. If 
 this were not to be the rule of construction, more difficulty 
 than ever would arise in drawing the line between the jurisdic- 
 tion of the Dominion and the provincial legislatures. This 
 gives us one clear line of demarcation which it would be 
 dangerous to obliterate. I think it must be deemed to be one 
 line which was intended to exist. How far parliament can ex- 
 Man. L. R, 518.
 
 THE B. N. A. ACT SEC. 91, S.-8. 27. 413 
 
 elude provincial or municipal legislation by creating new crimes 
 is a question. 
 
 " This being the \iew which I take, I think that the act of 
 keeping a common gaming liouse cannot be made an offence by 
 provincial statute or by municipal by-law, but that it can be 
 punished only as an offence against the general criminal law 
 by indictment or such other procedure as the parliament of 
 Canada may provide." 
 
 It will be noticed that the language of this judgment 
 goes beyond what was necessary to the decision of the 
 case, and the part italicised conflicts with sec. 129 of the 
 B. N. A. Act. See ante, p. 410. On appeal, however, to 
 the full Court, Taylor, C.J., intimates his entire con- 
 currence with the view expressed by Killam, J. He 
 s] icaks of the offence as one which might have been 
 dealt with under the Dominion statute R. S. C. c. 158. 
 Referring to Regina v. Wason (p}, before the Court of 
 Appeal for Ontario, he points out that the offence created 
 by the provincial Act there impugned formed no pal't of 
 the criminal law previously existing, and that the apparent 
 object of the Act was to protect private rights rather than 
 punish public wrongs. Mr. Justice Bain, referring to the 
 same case, says : 
 
 " The remarks of all the judges clearly imply that had the 
 Act in question been one that was punishable as a crime under 
 the general criminal law of the Dominion, the matter would have 
 been ultra r/>v.v of the legislature." 
 
 Mr. Justice Dubucdidnot dissent from the judgment of 
 the court, but expressed his doubts in these words : 
 
 "It is objected that keeping a gambling house is a criminal 
 offence over which the Dominion parliament has exclusive juris- 
 diction. It is, undoubtedly, a criminal offence ; but I am in- 
 clined to think that such houses might also be regarded as 
 centres of disorder and immorality in the community, which 
 municipal corporations have a right and even a duty to suppress." 
 
 We might remark, in reference to this case, that the 
 (p) 17 O. A. E. 221.
 
 414 THE B. X. A. ACT SEC. 91, S.-S. 27. 
 
 ultimate decision of the point raised by Mr. Justice Dubuc 
 will depend somewhat upon the scope given to section !2, 
 sub-section 8 " municipal institutions in the province." 
 If the views expressed by the Court of Appeal for Ontario 
 in Re Local Option Act (q), receive final sanction, and the 
 term " municipal institutions " be held to cover, in the 
 newly acquired provinces, what the Court of Appeal has 
 held it to cover in the province of Ontario, then the view 
 to which Mr. Justice Dubuc inclined would be supported 
 by the fact that prior to Confederation, the power to put 
 down such establishments was vested in municipal bodies, 
 in Upper Canada at least. If, however, the powers of a 
 municipal body cannot, so far as those powers are conferred 
 by a provincial legislature, extend beyond the limits of the 
 powers directly exerciseable by such legislature (r) under 
 the other sub-sections of section 92, it will have to be con- 
 sidered whether any sub-section does support the grant to a 
 municipal body of what have been called police powers. 
 This must be discussed later, but, in either view, the point 
 raised by Mr. Justice Dubuc would necessitate consideration 
 of what was said by the Privy Council in Russell v. Reg., 
 that, in one aspect, a subject may fall within section 91, 
 and, in another, within section 92, and of how far that prin- 
 ciple can apply to the determination of the scope of this 
 sub-section 27 and sub-section 15 of section 92. 
 
 Provincial statutes regulating the killing and possession 
 of game at certain seasons of the year, were held by the 
 Court of Queen's Bench in Manitoba, not to fall within this 
 sub-section (s). At common law, no prohibition whatrver 
 exists in regard to the taking of game at any season of tin- 
 year; no public general statute of the Dominion purports 
 
 
 
 (q) IS O. A. R. 572 ; see notes to s. 91, s-s. 2, ant,-, p. 3i59 and to s. 92, 
 s-8. 8, post. 
 
 (r) See Leprohon v. Ottawa, 2 O. A. R. 522, referred to in the notes to 
 s-s. 8 of s. 92, post. 
 
 (s) Reg. v. Robertson, 3 Man. L. R. 613; see also notes to s-s. 16 of 
 s. 92, post.
 
 THE B. N. A. ACT SEC. 91, S.-S. 27. 415 
 
 to make criminal interference with wild animals ; and 
 therefore the matter is under the B. N. A. Act, left to be 
 dealt with by each province as a matter of a merely local 
 or private nature. This view is suggested by the judgment 
 of the court in that case ; that, if by reason of inter-pro- 
 vincial migration of birds and other game, the subject should 
 become one of the Dominion or quasi-national importance, 
 it would then be in order for the Dominion government, if 
 deemed advisable, to enact laws, making acts, which might 
 tend to the extermination or undue decrease of game, 
 criminal. 
 
 That provincial legislatures have exclusive authority to 
 regulate the procedure in prosecutions for offences against 
 provincial statutes is now recognized as the law in all the 
 provinces. 
 
 In Regina v. Roddy (f), it was held that a provincial 
 statute could so far create a crime as to make applicable to 
 the prosecution therefor the rules of evidence, procedure, 
 etc., laid down by Dominion legislation, to the exclusion of 
 any provincial law ; but this decision has been clearly over- 
 ruled by Regina v. Wasori (M*. This case will be found 
 referred to more at length in the notes to sub-section 15 of 
 section 92. It is a clear authority that the provincial legis- 
 latures have full power to regulate procedure in all prose- 
 cutions arising under provincial Acts. As will be seen, the 
 authorities in the other provinces are to the same effect. 
 
 On the other hand, in Regina v. Lake (v), it was held 
 that a provincial legislature has -no power to enact that an 
 offence against a Dominion Act (in that case the Canada 
 Temperance Act), may be treated as, and be proceeded upon, 
 under a provincial statute ; and in Regina v. Eli (w), also a 
 prosecution under the Canada Temperance Act, it was held 
 
 (0 41 U. C. Q. B. 291 ; see Keg. v. Bittle, 21 O. R. 605. 
 () 17 O. A. R. 221. 
 (r) 43 U.C, Q.B. 515. 
 (ic) 13 O. A. R. 526.
 
 416 THE B. X. A. ACT SEC. 91, S.-S. 27. 
 
 that all procedure connected with the infliction of punish- 
 ment for offences against that Act must be fixed by the 
 Dominion parliament, and that no appeal lay to the Court 
 of Appeal under the procedure as to appeals laid down by 
 provincial statutes. To the same effect are many dicta of 
 judges in the other provinces in cases involving the other 
 aspect of this question of procedure. The latest enuncia- 
 tion of the rule is in The Queen v. De Coste (x), in which the 
 Supreme Court of Nova Scotia held that a provincial legis- 
 lature has no power to authorize the removal by cei'tiorni-! 
 of a conviction under the Canada Temperance Act. This 
 agrees with the decision in all the provinces. 
 
 We should note, also, that in Ward v. Reid (y), it was 
 held by the Supreme Court of New Brunswick, that the 
 Dominion Act, 32 & 33 Vic. c. 31, s. 78, which provided 
 that penalties against justices of the peace for the non- 
 return of convictions, may be recovered in an action of 
 debt by any person suing for the same in any court of 
 record, was within the competence of the Dominion parlia- 
 ment, and that a provincial enactment declaring that 
 county courts should not have jurisdiction in such cases, 
 was thereby overborne. * It is submitted that the Dominion 
 Act can only be' held to apply to convictions for offences- 
 under Dominion legislation, and can have no application to 
 convictions for offences against provincial laws. 
 
 Although we defer consideration of the excepted matter 
 of the constitution of courts of criminal jurisdiction, we 
 should here make reference to some cases in which ques- 
 tion has arisen as to the nature of the "legislation impugned, 
 whether relative to the "constitution' of the court or to 
 procedure. 
 
 In Regina v. Bradshaw (0), it was held that trial with 
 or without jury is a question of procedure, and is not 
 
 (x) 21 N. S. K. 210. 
 
 (y) 22 N. B. Rep. 279 ; 3 Cart. 405. 
 
 (z) 38 U. C. Q. B. 504.
 
 THE B. X. A. ACT SEC. 91, S.-S. 27. 417 
 
 a matter relating to the " organization " of courts. The 
 validity of Dominion legislation adopting, for purposes of 
 criminal trials, provincial law in reference to the selection 
 of jurors was upheld in Reg. v. O'Rourke (a), a case suffi- 
 ciently referred to in Reg. v. Plante, about to be noted. 
 
 In reference to the provision in the Dominion Criminal 
 Procedure Act (see R. S. C., c. 174, s. 160), adopting the 
 provincial jury law, this saving clause is inserted : " sub- 
 ject always to any provision in any Act of the parliament 
 of Canada, and in so far as such laws are not inconsistent 
 with any such Act." Section 166 of the same statute 
 makes provision for a mixed jury, when duly demanded in 
 the province of Quebec, and section 167 makes a somewhat 
 similar provision for the province of Manitoba. In the 
 latter province, prior to 1890, the jury laws were adapted 
 and conformed to the requirements of the Criminal Pro- 
 cedure Act. There were provisions for the selecting, sum- 
 moning and impanelling of French-speaking jurors in case 
 a mixed jury was required, but in 1890 these provisions 
 were repealed. In Queen v. Plante (b), the defendant 
 demanded a mixed jury, or a jury composed of at least six 
 persons skilled in the language of the defence, as pre- 
 scribed for in section 167 of the Criminal Procedure Act, 
 but such a jury could not be obtained. Upon a case, 
 reserved, the majority of the court gave judgment, quash- 
 ing the case, upon the ground that, as judgment had been 
 given on demurrer at the trial upon the point raised, it had 
 Income matter of record and could not therefore be 
 reserved, a writ of error being the only remedy. Mr. 
 Justice Dubuc dissented from this view, and therefore 
 found it necessary to consider the constitutional question 
 involved. After referring to Regina v. O'Rourke and the 
 views of Wilson; C.J., and Hagarty, C.J., therein expressed, 
 his judgment proceeds : 
 
 (a) 1 O. R. 465 ; 32 U. C. C. P. 388 ; see note (h) ante, p. 202. 
 
 (b) 1 Man. L. R. 537. 
 CAN. Cox. 27
 
 418 THE B. X. A. ACT SEC. 91, S.-S. 28, 29. 
 
 " I perfectly agree with those views. I think that the jury, 
 when empanelled and sworn, became part of the constitution of 
 the court ; but, at the same time, I am of opinion that the 
 selecting and summoning of jurors are matters of criminal 
 procedure over which the Dominion parliament has exclusive 
 jurisdiction. It being so, section 169 of the Criminal Procedure 
 Act, by which the power to select and summon jurors is 
 delegated to the province, must be held to be intra vires. As, 
 therefore, the provinces exercise the power of selecting and 
 summoning jurors only by delegation of the Dominion parlia- 
 ment, and as, by section 160, the delegation is made ' subject 
 always to any provision in any Act of the parliament of Canada, 
 and in so far as such laws are not inconsistent with any such 
 Act,' it follows that section 167 of the Criminal Procedure Act, 
 by which, in Manitoba, that power, delegated to the province, 
 of selecting and summoning jurors is qualified in providing for 
 a mixed jury when duly demanded, is also intra vires. 
 
 " The authority to delegate implies the authority to qualify 
 and restrict the power delegated. By section 160, in delegating 
 to the provinces the power of selecting and summoning jurors, 
 the parliament of Canada reserved to itself the right to make 
 provisions in regard to the same. . . . The parliament of 
 Canada, by said section 167, has prescribed and determined 
 what kind- of jury shall, in certain cases, be required for criminal 
 assize. It follows that any jury summoned to serve at a 
 criminal assize, and different in its composition from the jury 
 required by the provisions of section 167, may be, by any 
 prisoner entitled to the benefit of such provisions, challenged as 
 not properly and duly summoned " (c). 
 
 28. The Establishment, Maintenance, 
 and Management of Penitentiaries. 
 
 29. Such classes of subjects as are 
 expressly excepted in the enumeration of 
 the classes of subjects by this Act as- 
 signed exclusively to the Legislatures of 
 the Provinces. 
 
 (f) See also Reg. v. Foley, 2 Cart. 053 (n).
 
 THE B. N. A. ACT SEC. 91, S.-S. 29. 419 
 
 deferring to the various sub-sections of section 92, the 
 -only express exceptions are those mentioned in sub-sections 
 1 and 10. With reference to the latter we need say noth- 
 ing here, as the notes to that sub-section discuss the matter 
 with sufficient fullness. As to the former, it is submitted 
 that this sub-section 29 does not apply to warrant the 
 Dominion parliament in amending the provincial constitu- 
 tions " as regards the office of Lieutenant-Governor." Any 
 such legislation would be repugnant to the spirit, if not the 
 express terms, of the B. N. A. Act. The office of the Lieu- 
 tenant-Governor is, as we have frequently remarked, a 
 link in the chain of connection between the provinces and 
 the Empire, and the whole spirit of the B. N. A. Act is that 
 this is one of those fundamental matters in connection with 
 the scheme of Canadian political organization, which is 
 matter of Imperial concern. This, is recognized in that 
 passage of the judgment of the Privy Council in Liquida- 
 tors of Maritime Bank v. Receiver-General of New Bruns- 
 wick ((/), in which their Lordships say that the Dominion 
 government is, in relation to a Lieutenant-Go vernor, "a 
 governing body, who have no powers and no functions 
 except as representatives of the Crown." 
 
 And any matter coming within any of 
 the classes of subjects enumerated in this 
 section shall not be deemed to come 
 within the class of matters of a local or 
 private nature comprised in the. enumera- 
 tion of the classes of subjects by this Act 
 assigned exclusively to the Legislatures 
 of the Provinces. 
 
 As to the wide effect given to this concluding clause in 
 the earlier decisions in our courts, see chapter X., ante, p. 
 207. Its reference to sub-section 16 of section 92 is now 
 clearly settled by authority. In L'Union St. Jacques v. 
 
 (d) Times L. K. Vol. VIII. 677 ; see ante, p. 307.
 
 420 THE B. N. A. ACT SEC. 92, S.-S. 1. 
 
 Belisle (e), Lord Selborne lays it down that the onus is on 
 the party who contends that any matter, " being of a private 
 nature," does also come within the class of subjects specially 
 enumerated in the 91st section. Note, too, the way in 
 which the reporter quotes this clause, putting " matters of 
 a local or private nature " in inverted commas as a quota- 
 tion from section 92, sub-section 16. See also Dow v. 
 Black (/), and Citizens v. Parsons (g) where the grammat- 
 ical connection with sub-section 16 of section 92 is clearly 
 pointed out. In note (xi) to section 91, ante, p. 352, we 
 have pointed out the bearing of this clause on the question 
 as to the power of the Dominion parliament to pass 
 "private Acts," and the notes to sub-section 16 of section 
 92 contain further reference to it. 
 
 Exclusive Powers of Provincial Legis- 
 latures. 
 
 SWepro- 92. In each Province the Legislature 
 iaSo! L J ' may exclusively make laws in relation to 
 matters coming within the classes of sub- 
 jects next hereinafter enumerated, that 
 is to say : 
 
 As to the powers, other than legislative, and the privi- 
 leges and immunities of provincial legislatures, see the 
 notes to section 69, ante, p. 326. The notes to the opening 
 clause of section 91 should be read preparatory to the con- 
 sideration of the various sub-sections of this section 92. 
 
 1. The Amendment from time to time, 
 notwithstanding anything in this Act, of 
 the Constitution of the Province, except 
 as regards the office of Lieutenant-Gov- 
 ernor. 
 
 (e) L. R. 6 P. C. 31. c') L. R. 6 P. C. 272, at p. 282. 
 
 (g) 7 App. Gas. 96, at p. 108.
 
 THE B. N. A. ACT SEC. 92, S.-S. 1. 421 
 
 When, in the early 'fifties, it was considered desirable to 
 make the Legislative Council of (Old) Canada elective, it 
 was thought that nothing short of Imperial legislation 
 could effect the change : that any colonial legislation to that 
 end would be " repugnant " to the provisions of the Union 
 Act. 1840, which prescribed the form of political organiza- 
 tion in the province. Accordingly, an Imperial Act (17 & 
 1 > Vic. c. 118) was passed (h) authorizing the parliament of 
 Canada to make the desired change. The Act authorized 
 further alteration, from time to time, but with the proviso 
 that any Bill for such purpose should be reserved for the 
 signincation of Her Majesty's pleasure thereon ; and it also 
 repealed certain clauses of the Union Act limiting the 
 power of the Canadian parliament in the matter of making 
 alteration in the membership of the Legislative Assembly 
 of the Province. 
 
 When, in the early 'sixties, the legislature of South 
 Australia desired to alter the constitution of the Legislative 
 Council and House of Assembly of that colony, Imperial 
 intervention was not sought. Doubts were, inconsequence, 
 raised as to the validity of the colonial Acts by which the 
 desired change had been enacted, and, to set at rest these 
 doubts, 26 & 27 Vic. c. 84 (Imp.) was passed, by which it 
 was enacted : 
 
 " All laws heretofore passed or purporting to have been passed ' 
 by any colonial legislature with the object of declaring or alter- 
 ing the constitution of such legislature, or of any branch thereof, 
 or the mode of appointing or electing the members of the same, 
 shall have, and be deemed to have had, from the date at which 
 the same shall have received the assent of Her Majesty, or of the 
 Governor of the colony on behalf of Her Majesty, the same force 
 and effect for all purposes whatever as if the said legislature had 
 possessed full powers of enacting laws for the objects aforesaid, 
 and as if all formalities and conditions by Act of parliament or 
 otherwise prescribed in respect of the passing of such laws had 
 been duly observed." 
 
 (h] See it printed in full in Houston's " Const. Doc. of Can." at p. 177.
 
 422 THE B. X. A. ACT SEC. 92, S.-S. 1. 
 
 but this Act though applicable to all the colonies of the 
 Empire was retrospective, merely, in its operation. 
 
 In the next year, however, was passed the Colonial Laws 
 Validity Act, 1865, to many of the provisions of which we 
 have already referred. The Act is one of such importance, 
 that, although we have quoted nearly every section of it in 
 various parts of this book, we have given it a place in the 
 appendix, in order that it may be studied in its entirety. 
 Upon our present subject, the important clause is the 5th v 
 enacting that 
 
 " Every representative legislature shall, in respect to the 
 
 j colony under its jurisdiction, have, and be deemed at all times 
 / to have had, full power to make laws respecting the constitution, 
 powers, and procedure of such legislature ; provided that such laws 
 shall have been passed in such manner and form as may from 
 time to time be required by any Act of parliament, letters patent, 
 order in council, or colonial law for the time being in force in the 
 colony." 
 
 Such was the position of affairs at the time the B. X. A. 
 Act, 1867, was passed. What is the effect of this later 
 Imperial Act, in respect of the applicability, to the legisla- 
 tive bodies now existing, under it, in Canada, of this clause 
 of the Colonial Laws Validity Act, 1865. We have already 
 discussed this question, to a slight extent, in reference to 
 the power of the Dominion parliament see ante, p. 280 
 and have pointed out that under the words "to make laws 
 respecting the constitution" no power is conferred by the 
 clause upon any colonial legislative body to enlarge the 
 sphere of its legislative authority. A fortiori, the fact that 
 by the B. N. A. Act, the field for the exercise, in Canada, of 
 colonial legislative power is exhaustively divided, into divi- 
 sions exclusive each of the other, clearly prevents any such 
 enlargement, by any one of our legislatures, of the sphere of 
 its authority. The word "constitution," therefore, must be 
 limited to the defining how, within its allotted sphere, the 
 work of government, legislative and executive, is to be 
 carried on what is to be the machinery of government.
 
 THE B. N. A. ACT SEC. 92, S.-S. 1. 423 
 
 Of "powers" and " procedure" we have already said (i) that, 
 as to the Dominion parliament and provincial legislatures, 
 this clause of the Colonial Laws Validity Act, 1865, is still in 
 force to enable them (save where, as by section 18, the B.N. A. 
 Act expressly limits its force) to define their powers, other 
 than legislative, and to regulate their procedure. 
 
 It has at length been authoritatively enunciated by the 
 highest tribunal in the -Empire that the form of political 
 organization in Canada is truly federal ; that the B. N. A. 
 Act had for its object " neither to weld the provinces into 
 one, nor to subordinate provincial governments to a central 
 authority, but to create a federal government in which they 
 should all be represented, intrusted with the exclusive ad- 
 ministration of affaire in which they had a common interest, 
 each province retaining its independence and autonomy." 
 The word "federal" can have significance only as between 
 the parties to the federal union, and in no way can it have 
 any bearing upon our relations to the government of the 
 United Kingdom, although the agreement entered into by 
 the provinces required, for its legal validity, to be clothed 
 in the garb of an Imperial Act. While, however, the "con- 
 stitution" of the federal government was thus matter of 
 agreement between the provinces, and while the B. N. A, 
 Act confers no general power ( j) upon the parliament of 
 Canada to make alteration therein, no limitation would 
 have been proper in regard to the " constitutions " of the 
 provincial governments no restriction upon the manner in 
 which the work of government should be carried on in rela- 
 tion to those matters in respect of which they retained their 
 "independence and autonomy" other than in regard to the 
 position of the executive head, designed to be the connect- 
 ing link, binding the provinces, through the Dominion 
 executive, to the home government and the Empire. Apart 
 from this new feature, the provincial " constitutions ' were 
 
 (/I See notes to ss. 85 and 69, ante. 
 
 (j) Special power '.s given, for obvious reasons, in relation to elections, 
 etc. See s. 40. et scq.
 
 424 THE B. N. A. ACT SEC. 92, S.-S. 2. 
 
 to continue as before the Union employed, of course, upon 
 a small range of matters and no withdrawal of the powers 
 which had been conferred by the Colonial Laws Validity 
 Act was contemplated. By way of abundant caution, how- 
 ever, it was deemed advisable to enact that " notwithstand- 
 ing anything in this Act" the provincial legislatures should 
 have still the power to amend the provincial constitutions, 
 save, for the reasons above indicated, " as regards the office 
 of Lieutenant-Governor." 
 
 We have, from time to time, in the notes to the various 
 sections relating to the provinces and their form of govern- 
 ment, pointed out alterations and amendments which have 
 been made under the authority of this sub-section. Under 
 it Manitoba has abolished her second chamber, and there are 
 signs of a disposition on the part of some of the other pro- 
 vinces to follow suit to this lead on the part of our youngest 
 province. There is no limit, however, to the extent to 
 which the "amendment" may proceed, save in so far as it 
 may be restrained by the exercise of the power of disallow- 
 ance. No particular form of provincial government is 
 "guaranteed" by our charter of government beyond this, 
 that its executive head must be the Queen, represented in 
 each province by a Lieutenant-Governor, appointed by the 
 federal executive, and through this representative she is 
 entitled to share in all provincial legislation. 
 
 An Act of the Ontario legislature conferring upon the 
 Lieutenant-Governor power to remit, by order in council, 
 any fine or penalty, to which any person might have become 
 liable through breach of any provincial law, was held (/') 
 not to offend against the exception not being an amend- 
 ment of the constitution "as regards the office of Lieutenant- 
 Governor. 
 
 2. Direct Taxation within the Pro- 
 vince in order to the raising of a Revenue 
 for Provincial purposes. 
 
 (A-) Atty.-Genl. for Canada v. Atty.-Genl. (Ont.), 20 O. R. 222 ; 19 
 O. A. B. 31. Bee notes to s. 53, nute, p. 305.
 
 THE B. X. A. ACT SEC. 92, S.-S. 2, 3. 425 
 
 3. The borrowing of money on the 
 sole credit of the Province. 
 
 As to the other source of provincial revenue, see sub- 
 sections 5, 9 and 15 of this section 92, and section 102 et seq., 
 and notes thereto. See also notes to sub-sections 3 and 
 4 of section 91, ante, p. 376. 
 
 The operation of the power conveyed by sub-section 2 
 is limited " in order to the raising of a revenue for pro- 
 vincial purposes" but, in Dow v. Black (I), it was held 
 that this sub-section authorizes the imposition of ' ; direct 
 taxation for a local purpose upon a particular locality 
 within the province," and is not to be limited to direct 
 taxation, " only for the purpose of raising revenue for 
 general provincial purposes, that is, taxation incident on 
 the whole province for the general purposes of the whole 
 province." In that case the tax necessary to pay a local 
 Jtuiuix was directly imposed by the Act impugned, but, 
 bearing in mind the principle of Hodge v. The Queen, as to 
 the delegation of power (see ante, p. 202), the decision in 
 Dow v. Black is sufficient warrant TOT the wKole system of 
 municipal taxation now operative throughout Canada. 
 Had the construction contended for prevailed, the taxing 
 powers of a municipality would have been cut down to 
 license fees under sub-section 9 ; and direct subsidies from 
 the provincial governments must have been resorted to (m), 
 if indeed that method could have been upheld as being for 
 the. general benefit and purposes of the whole province. 
 
 What is direct taxation ? This question has been under 
 consideration by the Judicial Committee of the Privy 
 Council in several cases, the last being Bank of Toronto v. 
 Lamhe (/>), in which it was held that a tax imposed upon 
 
 (I) L. R. 6 P. C. -272. 
 
 (m) See, however, Lynch v. Canada N. W. Land Co.. 19 S. C. R. 204, 
 in which Chief Justice Ritchie speaks- of the pDvrer of taxation as being 
 essential to il municipal institutions." !>ee the notes to s. 92, s-s. 8, 
 it. 
 
 () 12 App. Cas. 575. 
 
 '
 
 426 THE B. N. A. ACT SEC. 92, S.-S. 2, 3. 
 
 banks which carry on business within the province, vary- 
 ing in amount with the paid-up capital, and with the num- 
 ber of its offices, is direct taxation. 
 
 "First, is the tax a direct tax? For the argument of this 
 question, the opinions of a great many writers on political 
 economy have been cited. . ' . . . But it must not be for- 
 gotten that the question is a legal one, namely, what the words 
 mean as used in this statute ; whereas the economists are always 
 seeking to trace the effects of taxation throughout the com- 
 munity, and are apt to use the words ' direct ' and ' indirect ' 
 according as they find the burden of a tax abides more or less 
 with the person who first pays it. This distinction is illustrated 
 very clearly by the quotations from a very able and clear thinker, 
 the late Mr. Fawcett, who after giving his tests of direct and 
 indirect taxation, makes remarks to the effect that a tax may be 
 made direct or indirect by the position of the tax-payers or by 
 private bargains about its payment. Doubtless such remarks 
 have their value in an economical discussion. Probably it is true 
 of every indirect tax that some persons are both the first and 
 the final payers of it ; and of every direct tax that it affects- 
 persons other than the first payers ; and the excellence of an 
 economist's definition will be measured by the accuracy with 
 which it contemplates and embraces every incident of the thing 
 defined. But that very excellence impairs its value for the pur- 
 poses of the lawyer. The legislature cannot possibly have meant 
 to give a power of taxation valid or invalid according to its 
 actual results in particular cases. It must have contemplated 
 some tangible dividing line referable to and ascertainable by the 
 general tendencies of the tax and the common understanding of 
 men as to those tendencies. 
 
 "After some consideration, Mi\ Kerr chose the definition of 
 John Stuart Mill as the one he would prefer to abide by. The 
 definition is as follows : 
 
 " ' Taxes are either direct or indirect. A direct tax is one 
 which is demanded from the very persons who it is intended or 
 desired should pay it. Indirect taxes are those which are de- 
 manded from one person in the expectation and intention that 
 he shall indemnify himself at the expense of another. Such are 
 the excise or customs. The producer or importer of a commod-
 
 THE B. X. A. ACT SEC. 92, S.-S. 2, 3. 
 
 427 
 
 ity is called upon to pay a tax on it, not with the intention to 
 levy a contribution upon him, but to tax through him the con- 
 sumers of the commodity, from whom it is supposed he will 
 recover the amount by means of an advance in price.' 
 
 " It is said that Mill adds a term, that, to be strictly direct, a 
 tax must be general, and this condition was much pressed at the 
 bar. Their Lordships have not thought it necessary to examine 
 Mill's works for the purpose of ascertaining precisely what he 
 does say on this point, nor would they presume to say whether, 
 for economical purposes, such a condition is sound or unsound, 
 but they have no hesitation in rejecting it for legal purposes. 
 It would deny the character of a direct tax to the income tax of 
 this country, which is always spoken of as such, and is generally 
 looked upon as a direct tax of the most obvious kind ; and it 
 would run counter to the common understanding of men on this 
 subject, which is one main clue to the meaning of the legisla- 
 ture. 
 
 " Their Lordships, then, take Mill's definition, above quoted, 
 as a fair basis for testing the character of the tax in question, 
 not only because it is chosen by the appellants' counsel, nor 
 only because it is that of an eminent writer, nor with the inten- 
 tion that it should be considered a binding legal definition, but 
 because it seems to them to embody with sufficient accuracy for 
 this purpose an understanding of the most obvious indicia of 
 direct and indirect taxation, which is a common understanding, 
 and is likely to have been present to the minds of those who 
 passed the Federation Act. 
 
 " Now, whether the probabilities of the case or the frame of 
 the Quebec Act are considered, it appears to their Lordships that 
 the Quebec Legislature must have intended and desired that the 
 very corporations from whom the tax is demanded should pay 
 and finally bear it. It is carefully designed for that purpose. 
 It is not like a customs' duty, which enters at once into the price 
 of the taxed commodity. There the tax is demanded of the 
 importer, while nobody expects or intends that he shall finally 
 bear it. All scientific economists teach that it is paid, and 
 scientific financiers intend that it shall be paid, by the consumer ; 
 and even those who do not accept the conclusions of the econom- 
 ists maintain that it is paid and intended to be paid by the
 
 428 THE B. N. A. ACT SEC. 92, S.-S. 2, 3. 
 
 foreign producer. Nobody thinks that it is, or intends that it 
 shall be, paid by the importer from whom it is demanded. But 
 the tax now in question is demanded directly of the bank, appar- 
 ently for the reasonable purpose of getting contributions for 
 provincial purposes from those who are making profits by pro- 
 vincial business. It is not a tax on any commodity which the 
 bank deals in and can sell at an enhanced price to its customers. 
 It is not a tax on its profits, nor on its several transactions. It 
 is a direct lump sum to be assessed by simple reference to its 
 paid-up capital and its places of business. It may possibly 
 happen that in the intricacies of mercantile dealings the bank 
 may find a way. to recoup itself out of the pockets of its Quebec 
 customers. But the way must be an obscure and circuitous 
 one. The amount of recoupment cannot bear any direct relation 
 to the amount of tax paid, and, if the bank does manage it, the 
 result will not improbably disappoint the intention and desire of 
 the Quebec government. For these reasons, their Lordships 
 hold the tax to be ' direct taxation.' ' 
 
 With this description of direct taxation may l>e com- 
 pared that given by the same Committee in Attorney- 
 General (Quebec) v. Reed (o), where Mill's definition was 
 also relied on in support of the holding that a stamp duty 
 on " exhibits/'^filed in the course of judicial proceedings, is 
 not " direct " taxation, and that the Act imposing such a 
 duty was therefore ultra vires of the Quebec legislature : 
 
 " Can it be said that a tax of this nature, a stamp duty in 
 the nature of a fee payable upon a step of a proceeding in the 
 administration of justice, is one which is demanded from the 
 very persons who it is intended or desired should pay it ? It 
 must be paid in the course of the legal proceeding, whether that 
 is of a friendly or of a litigious nature. It must, unless in the 
 case of the last and final proceeding after judgment, be paid 
 when the ultimate termination of those proceedings is uncertain ; 
 and from the very nature of such proceedings until they termi- 
 nate, as a rule, and speaking generally, the ultimate incidence of 
 such a payment cannot be ascertained. In many proceedings of 
 a friendly character, the person who pays it may be a trustee, an 
 
 H 10 App. Cas. 141.
 
 THE 15. X. A. ACT SEC. 91, S.-S. 2, 3. 429 
 
 administrator, a person who will have to be indemnified by some- 
 body else afterwards. In most proceedings of a contentious 
 character, the person who pays it is a litigant, expecting or 
 hoping for success in the suit, and whether he or his adversary 
 will have to pay it in the end must depend on the ultimate 
 termination of the controversy between them. The legislature 
 in imposing the tax cannot have in contemplation, one way or 
 the other, the ultimate determination of the suit, or the final 
 incidence of the burden, whether upon the person who had to 
 pay it at the moment when it was exigible, or upon anyone else. 
 Therefore it cannot be a tax demanded * from the very person's 
 who~it is intended or desired should pay it '; for, in truth, that is" 
 a matter of absolute indifference to i the intention of the legisla 7 " 
 ture. And, on the oilier hand, so far as relates to the knowledge 
 which it is possible to have in a general way of the position of 
 things at such a moment of time, it may be assumed that the 
 person who pays it is in the expectation and intention that he 
 may be indemnified ; and the law wh'ch exacts it cannot assume 
 that that expectation and intention may not be realized. As in 
 all other cases of indirect taxation, in particular instances, by 
 particular bargains and arrangements of individuals, that which 
 is the generally presumable incidence may be altered. An im- 
 porter may Le himself a consumer. Where a stamp duty upon 
 transactions of purchase and sale is payable,' there may be 
 special arrangements betsveen the parties determining who shall 
 bear it. The question whether it is a direct or indirect tax can- 
 not depend upon those special events which may vary in par- 
 ticular cases ; but the best general rule is to look to the time of 
 payment ; and if at the time the ultimate incidence is uncertainA 
 then, as it appears to their Lordships, it cannot, in this view, 
 be called direct taxation within the meaning of the second sec- 
 tion of the ninety-second clause of the Act in question." 
 
 The legislature of Quebec passed, in 1875, an Act (39 
 Vic. c. 7) providing for the issue of licenses to insurance 
 companies doing business in the province. Nothing was to 
 be paid on the issue of the license, but, on the issue of any 
 policy by an insurance company, stamps were to be affixed 
 to an amount varying with the amount of the premium. 
 This was held by the Judicial Committee of the Privy
 
 430 THE B. N. A. ACT SEC. 92, S.-S. 2, 3. 
 
 Council in Attorney-General v. The Queen Insurance 
 Company (p), to be not a license, but a stamp duty on 
 policies. In the latter view it was held to be indirect taxa- 
 tion. In arriving at the meaning to be attributed to the 
 words " direct taxation " the Committee point out that 
 they may have a technical (economical or legal) or popular 
 meaning. No attempt is made to decide this question, 
 because it was held that, by whichever key interpreted, a 
 stamp duty, such as was imposed by the Act, was not direct 
 taxation. 
 
 The decision of the Supreme Court of Canada, in Sev- 
 ern v. The Queen (q), must upon this point be considered 
 overruled. It was held in that case that a license fee 
 required to be paid by brewers, under an Act of the legis- 
 lative assembly of Ontario, was indirect taxation; applying, 
 however, the considerations dwelt upon by the Privy 
 Council, particularly in Bank of Toronto v. Lambe (r), such 
 a license fee must be held to be direct taxation. It is 
 intended to be paid by the very person on whom it is 
 imposed, and if that person manages to recoup himself, it 
 must be by some circuitous method, the amount of recoup- 
 ment on each sale of beer bearing no relation whatever to 
 the tax imposed. Even before Bank of Toronto v. Lambe 
 was decided the Judges of the Supreme Court seem to have 
 recognized that the authority of Severn v. The Queen had 
 been seriously impugned. See, however, the observations 
 of Gwynne, J., in Molson v. Lambe (s); but, so far as 
 appeal's from the report of this case, Bank of Toronto v t 
 Lambe was not referred to. The holding, too, of the 
 Supreme Court that such a license fee upon brewers was a 
 regulation of trade and commerce" cannot be supported, 
 for reasons also set out in Bank of Toronto v. Lambe, as well 
 as in earlier cases to which reference has already been 
 made in the notes to sub-section 2 of section 91. 
 
 ( p) 3 App. Gas. 1090. (r) 12 App. Gas. 575. 
 
 (q) 2 >, C. R. 70. (,i 15 S. C. R. at pp. 288-9.
 
 THE B. X. A. ACT SEC. 92 r H.-S. 2,3. 481 
 
 In Longueuil Navigation Co. v. Montreal (t), an Act of 
 the Quebec legislature authorizing the city of Montreal to 
 impose an annual tax on ferrymen and ferry companies, 
 was held to be infra vires. See notes to section 91, sub- 
 section 10, ortfe, p. 383. 
 
 Referring to the other sources of provincial revenue, 
 and to the various institutions which a province has to 
 maintain, the question arises, are the powers of provincial 
 legislatures under those sub-sections limited to " direct " 
 taxation \ In Attorney-General (Quebec) v. Reed (u), 
 above referred to, the Judicial Committee of the Privy 
 Council declined to determine " whether, if a special fund 
 had been created by a provincial Act for the maintenance 
 of the administration of justice in the provincial courts, 
 raised for that purpose, and not available as general 
 revenue for general provincial purposes, in that case the 
 limitation to direct taxation would still have been applic- 
 able." The point was considered by Mr. Justice Gwynne in 
 the same case when before the Supreme Court of Canada 
 (v). The contention was, that under sub-section 15 of 
 section 92, "the constitution, maintenance and organiza- 
 tion of provincial courts " indirect taxation might be re- 
 sorted to, and that, therefore, a stamp duty on " exhibits " 
 might be imposed under the authority of a provincial Act. 
 
 Mr. Justice Gwynne says : 
 
 " The express precision made by item 2, which, while it 
 authorizes t-ie legislatures to make laws iu order to the raising 
 of a revenue for provincial purposes by taxation, limits the ex- 
 ercise of the authority thus conferred to direct taxation, very 
 clearly excludes, in my judgment, the power of raising a revenue 
 by any species of taxation other than by direct. . . . That 
 the maintenance of provincial courts and the administration of 
 justice are provincial purposes, there can be no doubt. They are 
 therefore comprehended within the purview of item 2 of section 
 92, which in express terms prescribes direct taxation as the mode 
 
 (t) 15 S. C. R. 566. () 10 App. Cas. 141. 
 
 (r) 8 S. C. R. 408; at p. 431.
 
 432 THE B. N. A. ACT SEC. 92, S.-S. 2, 3. 
 
 of taxation to be adopted for raising revenue for provincial pur- 
 poses, so that upon the principle of expressrmtfacitcestaretacitvm, 
 there can be no such implied power involved in this item 14, as 
 is insisted upon ; moreover, if the contention were sound, then 
 upon the same principle they could equally pass an Act imposing 
 a special tax of an indirect character for the payment of provincial 
 officers under a power implied under item 4 of this 92nd section, 
 and another Act imposing another special tax, also of an indirect 
 character, to defray the expense attending the establishment, 
 maintenance, and management of public and reformatory prisons, 
 under the powers conferred by item 6, and another to defray the 
 expense attending the establishment, maintenance, and manage- 
 ment of hospitals, asylums, etc., under the powers conferred by 
 item 7; and so the effect would be that this im- 
 plied power of raising revenue by indirect taxation, which, it is 
 contended, the legislatures have, being exercised, as it might be 
 if they have the power, to raise sufficient revenue to defray all 
 the expenses of the government and legislatures in respect of all 
 the several matters under their contrpl and jurisdiction, it would 
 be quite unnecessary for them to exercise the power conferred by 
 item 2, raising by direct taxation the revenue for provincial pur- 
 poses, or to draw upon the revenue created by the subsidy paid 
 by the Dominion, or by sale of the public property, or other in- 
 come arising therefrom, or from the assets assigned to each 
 province. Such a contention appears to me to involve so 
 palpable a reductio ad absurdum, as to carry with it its own refu- 
 tation ; and indeed the judgment of the Privy Council in 
 Attorney-General (Quebec) v. The Queen Insurance Company, 
 in effect, decides that the provincial legislatures cannot, by any 
 Act of theirs, authorize the raising a revenue by any mode of 
 taxation other than direct." 
 
 That the Privy Council did not consider the question 
 determined by any previous decision of their own is 
 apparent from the language of the judgment of that tribunal 
 when the case came before them. The question is touched 
 upon in other Canadian authorities for example, in Regina 
 v. Taylor (w), where Mr. Justice Wilson afterwards Chief 
 Justice Sir Adam Wilson says : 
 (w) 36 U. C. Q. B. 183, at p. 201.
 
 THE B. X. A. ACT SEC. 92, S.-S. 2, 3. 433 
 
 " The power which is vested in Ontario to raise money by 
 direct taxation excludes, of course, as a general rule, the right 
 to raise it by indirect taxation. But, by means of the powers, 
 numbers 8 and 9, relating to licenses and to municipal institu- 
 tions, it is plain that Ontario may, and does, by virtue of these 
 powers, raise very large sums of money by indirect taxation. 
 Power No. 2 must be read as qualified in its absoluteness, there- 1 
 
 fore, by powers No. 8 and 9." 
 
 / 
 In Leprohon v. Ottawa (x\ the late Chancellor Spragge 
 
 expressed the opinion that a provincial legislature cannot 
 confer upon a municipality of its own creation power to do 
 what it cannot itself do ; and if this be sound law, the 
 powers of municipal corporations in the matter of taxation 
 must be limited to direct taxation, if the powers of the 
 province are so limited. 
 
 As to the powers under sub-section 9 of section 92, it 
 may be said that the judgment of the Privy Council in 
 Bank of Toronto v. Lambe establishes that license fees are 
 " direct " taxation : so that the controversy would appear 
 to be limited to those sub-sections of section 92 (?/), which 
 give provincial legislatures power to provide for the main- 
 tfit'inceof certain institutions, and as to these it is sub- 
 mitted, the same limitations exist. The raising of money 
 to maintain these institutions courts, prisons, hospitals, 
 etc. would be for " provincial purposes," as interpreted in 
 Dow v. Black (0). 
 
 Following Atty.-Genl. v. Reed, the Court of Queen's 
 Bench in Manitoba held in Plummer Wagon Co. v. Wilson 
 (((}, that the then existing provincial statutes requiring 
 payment of fees by means of law stamps on proceedings in 
 that court were ultra vires. Thereupon, acting upon the 
 distinction suggested by the Committee, the Manitoba legis- 
 
 (j-) 2 O. A. R. 522 ; at p. 520. 
 (y) s-ss. 6, 7 and 14. 
 (z) L. R. 6 P. C. 272; see ante, p. 425. 
 (a) 3 Man. L. R. 68. 
 CAN. CON. 28
 
 434 THE B. N. A. ACT SEC. 92, S.-S. 2, 3. 
 
 lature passed an Act creating a special fund "solely for the 
 maintenance of the administration of justice in the courts 
 of this province," to which fund the fees payable in stamps 
 upon legal proceedings were appropriated. This Act was 
 impugned, and in Dulmage v. Douglas (6), was upheld by 
 Mr. Justice Dubuc, but, on appeal to the full court, this 
 decision was reversed and the statute pronounced ultra 
 vires. In the opinion of the court, the only exception to 
 the limitation laid down in this sub-section 2 is that 
 expressed in sub-section 9, but as the judgment of the 
 Privy Council in Bank of Toronto v. Lambe (c), in effect 
 holds that license fees are " direct taxation," no doubt the 
 Manitoba Court would agree with the view we have ven- 
 tured to express, that there is no exception to the rule laid 
 down in this sub-section 2. The Manitoba legislature sur- 
 mounted the difficulty by 49 Vic. c. 51, declaring law stamps 
 to be a direct tax, and making good this declaration by en- 
 acting that such fees, so payable in stamps, are not to form 
 any part of the costs of an action taxable between party 
 and party, but are, in fact, to be borne once for all by the 
 party actually paying them in the first instance. This Act 
 
 \ was declared intra vires by the full court in Crawford v. 
 
 1 Duffield (d). 
 
 We have already referred to that part of the judgment 
 in Bank of Toronto v. Lambe which lays it down that the 
 powers of taxation vested in the provincial legislatures by 
 this sub-section are not to be curtailed, because possibly 
 they may be abused or so exercised as to prejudicially affect 
 corporations and institutions existing under Dominion 
 laws (e). See also notes to section 91, sub-section 8, for a 
 further reference to the case of Leprohon v. Ottawa (/), in 
 
 (b) 3 Man. L. R. 562 ; 4 ib. 495. 
 
 (c) 12 App. Gas. 575. 
 
 (d) 5 Man. L. R. 121. 
 
 (e) See notes to s. 91, s-s. 15. 
 
 (f) 2 O. A. R. 522 ; see also the note to the next sub-section.
 
 THE B. X. A. ACT SEC. 92, S.-S. 4. 435 
 
 which it was held that provincial legislatures have no 
 power to tax the salaries of members of the executive staff 
 of the Dominion. 
 
 With regard to the meaning of the expression, " within 
 the province," we may again refer to Bank of Toronto v. 
 Lambe, which decides that it is not necessary that the 
 persons to be taxed under a provincial law be domiciled, or 
 even resident, in the province. It was urged in that case 
 that the Bank of Toronto was an Ontario corporation, 
 having its domicile in Toronto, and that the taxation must 
 therefore fall on persons not within the province of 
 Quebec ; but to this it was answered : " Any person found 
 within the province may be legally taxed there. This 
 Bank is found to be carrying on business there, and on 
 that ground alone it is taxed." 
 
 4. The establishment and tenure of 
 Provincial offices and the appointment 
 and payment of Provincial officers. 
 
 This sub-section is the guarantee for the continuance of 
 " responsible government." It covers the entire executive 
 department of provincial government with the sole excep- 
 tion of the Lieutenant-Governor, and of those judges 
 mentioned in section 96 of the B. N. A. Act and ensures 
 that the people of the province, through the provincial 
 assembly, shall always be able to make the members high 
 and low of the provincial executive staff feel responsi- 
 bility. In the third chapter of this book we have 
 endeavored to make clear ,the intimate connection which 
 exists between " tenure of office " and the power to " with- 
 hold supplies," and have there pointed out that the grant to 
 colonial legislatures of the latter power necessarily carried 
 with it that the tenure of office in the colony should be at 
 their " pleasure." 
 
 With reference, however, to the existence of dual gov- 
 ernment in Canada, it has been laid down (g) that the 
 
 (g) 2 O. A. B. 522.
 
 436 THE B. X. A. ACT SEC. 92, S.-S. 4. 
 
 provincial legislatures cannot impose burdens e.g., a muni- 
 cipal income tax upon the " instruments " by which the 
 Dominion government is carried on. Whether this judg- 
 ment can stand in the face of Bank of Toronto v. Lam be (h) 
 is, perhaps, questionable. The impossibility of applying 
 the principle, conversely, to relieve provincial officers from 
 the burden of federal tariffs rather tends to weaken the c/> 
 inconvenienti argument. 
 
 It has been held that a provincial legislature is within 
 its powers in appointing officers entrusted with the enforce- 
 ment of The Canada Temperance Acts of 1864 (i) and 18~S 
 (j} in municipalities where either of them had been 
 adopted. In the last case the ground for the decision is 
 thus put by the present Chancellor of Ontario : 
 
 " The general law as to prohibition respecting all Canada, 
 which can only be enacted by the Dominion, being localized by 
 municipal suffrages, its enforcement becomes also a matter of 
 local importance in the province within the meaning of the 
 B. N. A. Act, section 92, item 16. The enforcement of the Act 
 in the adopting municipalities involves questions of local police 
 regulation. For the purpose of ensuring uniformity and efficiency 
 of action, the prosecution of offenders may be properly relegated 
 to the hands of provincial officers, for the appointment and pay- 
 ment and governance of whom laws may be made under the 
 B. N. A. Act, section 92, item 4. The expense of carrying the 
 Act into effect within the adopting county is a burden to be 
 borne by the ratepayers of that locality. So that the legislation 
 now questioned may also fall within the scope of the B. X. A. 
 Act, section 92, item 8, as pertaining to municipal institutions 
 within the province." 
 
 With much misgiving, we venture to question the cor- 
 rectness of these decisions. The " local option " character 
 
 (h) 12 App. Cas. 575. 
 
 (i) License Commissioners v. Prince Edward, 26 Gr. 452 per Sprage, 
 C., (1879). 
 
 (j) License Commissioners v. Frontenac, 14 O. R. 741 per Boyd, C. t 
 (1887).
 
 THE B. N. A. ACT SEC. 92, S.-S. 5. 437 
 
 of the Canada Temperance Act its localization by muni- 
 cipal suffrages was much pressed in argument in Russell 
 v. The Queen, as shewing the subject matter of that Act to 
 be within the legislative competence of a provincial legis- 
 lature only. The argument was rejected by the Pri\y 
 Council, and it appears to us that, so long as that decision 
 stands, the enactment of laws for the enforcement of the 
 provisions of that Act cannot be said to be a matter of 
 a merely local' or private nature in the province. Laws 
 "in relation to" any subject matter must come in their 
 entirety from that legislature to which the subject matter 
 is committed. It is the question over again of the necessary 
 connection between legislature and executive. It is, of 
 course, open to the Dominion parliament to utilize existing 
 provincial machinery (&), or to confer upon "boards" or 
 bodies of provincial creation powers and authorities in 
 relation to the enforcement of Dominion laws, but, quoad 
 the duties imposed by Dominion legislation, the members 
 of the municipal bodies or "boards" are not provincial 
 officers. The above cases, however, did not involve con- 
 sideration of the power of the Dominion legislature to 
 delegate its authority or to adopt existing institutions, but 
 of the power of a provincial legislature to supplement 
 Dominion legislation upon a matter admittedly within the 
 exclusive ken of the latter, by the appointment of an 
 executive staff to cany it out. 
 
 5. The Management and Sale of the 
 Public Lands belonging to the Province 
 and of the timber and wood thereon. 
 
 " It must always be kept iu view that, wherever public land 
 with its incidents is described as ' the property of ' or as ' belong- 
 ing to' the Dominion or a province, these expressions merely 
 import that the right to its beneficial use, or to its proceeds, has 
 
 (k) See ante, p. 417, as to their adoption of provincial laws as to 
 jurors ; and ante, p. 23'2, as to the trial of (Dominion) election petitions 
 by provincial courts.
 
 438 THE B. X. A. ACT. SEC. 92, S.-S. 6, 7. 
 
 been appropriated to the Dominion or the province, as the case 
 may be, and is subject to the control of its legislature, the land 
 itself being vested in the Crown. Per Lord Watson in St. 
 Catherines Milling Co. v. The Queen (/). 
 
 The case from which the above extract is quoted is a 
 decision that the " lands reserved for the Indians " men- 
 tioned in sub-section 24 of section 91, become, when dis- 
 encumbered of the Indian usuf ructuary interest, " public 
 lands belonging to the province," or, perhaps we should 
 say, that they are always such, subject to the encum- 
 brance of that Indian interest. 
 
 The matter, however, of public assets, revenue pro- 
 ducing and otherwise, will be fully considered in the notes 
 to the group of clauses of this Act, which deal more fully 
 therewith 102, et seq. 
 
 As to the position of Manitoba and the North-West 
 Territories in reference to the public lands within those 
 areas we shall have to speak in Part IV. of this book. 
 
 6. The Establishment, Maintenance 
 (i) and Management of Public and Re- 
 formatory Prisons in and for the Pro- 
 vince. 
 
 7. The Establishment, Maintenance 
 and Management of Hospitals, Asylums, 
 Charities and Eleemosynary Institutions 
 in and for the Province, other than Marine 
 Hospitals. 
 
 (i) "Maintenance." See note to sub-section 2 of sec- 
 tion 92, where reference is made to the query suggested 
 by the Privy Council in Attorney-General of Quebec v. 
 Reed (in) as to the power of a province to maintain 
 prisons, hospitals, etc., and courts by " indirect taxation." 
 
 (I) 14 App. Cas. 46. (m) 10 App. Cas. 141.
 
 THE B. X. A. ACT SEC. 92, S.-S. 8. 439 
 
 8. Municipal Institutions in the Pro- 
 vince. 
 
 It must be admitted that the authorities are in a very 
 unsatisfactory state as to the precise scope of this sub-sec- 
 tion, and as to the powers intended to be thereby conferred 
 upon provincial legislatures. The main question is one that 
 goes to the very root, and it has been brought prominently 
 into discussion in connection with that most prolific cause 
 of litigation the traffic in intoxicating liquor. In one of 
 the earliest cases (7?) which arose in Ontario in reference to 
 the power of a provincial legislature to authorize municipal 
 bodies to restrict the traffic, the late Chief Justice Richards 
 intimated his opinion that the Imperial parliament, in 
 passing the B. N. A. Act, "on the suggestion of, and on 
 conference with the delegates from the various provinces " 
 must have intended to empower those provinces to establish 
 municipalities which " would possess the same powers as 
 those which were then in existence, under the same name, 
 in the province " i.e., in that part of (old) Canada, formerly 
 known as Upper Canada, and now forming the province of 
 Ontario. To the like effect, the court of final resort in 
 Quebec held (o), in 1883, that the state of things existing* 
 in the provinces at the time of Confederation, and more ; 
 particularly that which was recognized by law in all or 
 most of the provinces, is a useful guide in the interpreta- 
 tion of the meaning attached by the Imperial parliament to 
 indefinite expressions employed in the B. N. A. Act. At 
 the time of Confederation, the right to prohibit the sale of 
 intoxicating liquors was possessed by municipal authorities 
 under the laws in force respecting municipal institutions in 
 both parts of the province of Canada, and in Nova Scotia ; 
 and the court held that in consequence it should be deemed 
 to be included within the term " municipal institutions " in 
 
 (n) Slavin v. Orillia, 36 U. C. Q. B. 159 ; see ante, p. 359. 
 
 (o) Suite v. Three Rivers, 5 Leg. News, 330 ; 2 Cart. 280 ; see ante, 
 p. 362.
 
 THE B. N. A. ACT SEC. 92, S.-S. 8. 
 
 this sub-section. In the opinion of the Court, the provin- 
 cial legislatures have the power for the purposes of 
 " municipal institutions " to pass a prohibitory liquor law, 
 applicable to all municipalities within the province. In 
 delivering the judgment of the court Mr. Justice Ramsay 
 thus deals with the question of the meaning to be given to 
 the term " municipal institutions " : 
 
 " It may be at once conceded that the power to pass pro- 
 hibitory liquor laws is not essential to the existence of municipal 
 institutions, and that consequently in a very restricted reading 
 of sub-section 8, it would not justify the local legislature in pass- 
 ing a prohibitory liquor law. But, it may fairly be asked, 
 whether it was the intention of the Imperial parliament in an 
 enumeration of this sort to confine ' municipal institutions ' to 
 those matters only which are of the essence of municipal insti- 
 tutions ? If such was the intention of parliament, a wide field 
 for speculation was left open, or it was contemplated to restrict 
 municipal institutions witbin very narrow limits. It would 
 seem, however, we have not to determine what institutions are 
 essential to municipal existence in tbe abstract, but the meaning 
 of the term at tbe time of Confederation." 
 
 Reference is made in the judgment to the fact that in 
 New Brunswick, prior to Confederation, no statute con- 
 ferred any such powers upon municipal corporations, but 
 their existence in " the two great provinces of Confedera- 
 tion and one of the small ones " was, in the opinion of the 
 court, sufficient to include them within the powers intended 
 to be conferred under the expression " municipal institu- 
 tions " in this sub-section 8. 
 
 The Court of Appeal for Ontario has lately had 
 occasion to review the earlier decision of Chief Justice 
 Richards, and, as we have before intimated, it was held ( p) ; 
 that a provincial legislature can empower a municipal 
 body to pass a prohibitory by-law, because, at the date of 
 Confederation, municipalities had that power in Upper 
 
 (p) Re Local Option Act, 18 O. A. R. 572: see per Maclennan, J.A., 
 at p. 596.
 
 THE B. N. A. ACT SEC. 92, S.-S. 8. 441 
 
 Canada, now Ontario, thus confirming the opinion ex- 
 pressed in the earlier case. 
 
 In both Ontario and Quebec, therefore, this must be 
 taken as law, that whatever powers municipal bodies had 
 been invested with prior to the Union, those powers can 
 now be conferred upon them by a provincial legislature 
 that the term " municipal institutions " must be taken to 
 cover all such powers. 
 
 In the case to which we have last referred, an admis- 
 sion is made to much the same effect as that made by Mr. 
 Justice Ramsay in the Quebec case "that there is no 
 inherent connection between the liquor traffic and muni- 
 cipal institutions " ; but this is qualified by the statement 
 that there is as to Ontario at least a constitutional con- 
 nection, and that, in fact, in all the provinces there was the 
 power to regulate the traffic, in some to even prohibit it, 
 within" the bounds of the municipality. 
 
 It must not be forgotten, however, that the pre-Con-. x 
 federation provinces had all the powers of colonial self- 
 government ; their legislatures could make laws in relation 
 to all matters not of Imperial concern, or governed by 
 Imperial legislation ; there was then no sub-division of the 
 field between co-ordinate legislative bodies within the 
 colony, and upon the principle of The Queen v. Burah, a'nd 
 su i isequent cases (q), these pre-Conf ederation legislatures 
 could, from time to time, invest municipal bodies with such 
 of their own powers as to them seemed fit. 
 
 The late Mr. Justice Dunkiii adverts to this in Cooey v. ' 
 Brome (?) in the following terms : 
 
 " Nor is there wanting a sense of the words ' municipal 
 institutions in the province ' which would extend them also over 
 ground assigned exclusively to parliament, and notably would 
 limit its trade and commerce powers. Under legislation not 
 federally limited in that behalf, all sorts of powers are of course 
 
 (q) See ante, p. 177, et seq. 
 
 (/) 21 L. C. Jur. 182, 2 Cart. 385 ; see ante, p. 361.
 
 442 THE B. N. A. ACT SEC. 92, S.-S. 8. 
 
 more or less delegated to municipal bodies whenever convenience 
 tnay seem so to require. But for a legislature of strictly limited 
 nurisdiction, nothing is clearer than that it can delegate no 
 mowers beyond those it can directly exercise. Our legislature 
 can delegate no power of regulation of trade and commerce, nor 
 over fisheries, nor weights and measures, nor anything else 
 / matter of merely parliamentary legislation. Each provincial 
 legislature alone can create municipalities properly so-called ; 
 establish their functionaries, and assign them their proper duties 
 and their powers but always within the limits of its own. 
 Whether or not it can render them incapable of other duties and 
 powers, to be delegated by parliament, is a question that need 
 not here be considered. Our legislature, as will presently be 
 seen, has been careful to declare them not so. And as to all 
 powers not of provincial competency, so to speak, which they 
 may hold under antecedent delegation of the unlimited legisla- 
 ture of the late province of Canada, these can be resumed or 
 altered by parliament alone. As being exercised by municipali- 
 ties, they may be styled in a certain sense municipal. But such 
 sense is not that of the Union Act ; nor even as mere matter of 
 presumption, prima facie, is it that of provincial legislation under 
 authority of the Union Act." 
 
 and the same view is very clearly put by Mr. Justice Bur- 
 ton in Re Local Option Act (s) ; 
 
 " It does not suggest itself to my mind as at all conclusive 
 in favor of the power of the Local Legislature to deal with the 
 subject of prohibition under the words ' municipal institutions ' 
 that provisions in reference to that subject were, at the time of 
 the passing of the Confederation Act, to be found in our own 
 municipal Acts, and had been so for many years. It must not 
 be forgotten that the legislature of the old province of Canada, 
 which passed those Acts, had plenary powers of legislation, 
 . . . in fact, all the powers which are now distributed be- 
 tween the parliament of the Dominion and the legislatures of 
 the provinces. Having that power, it was clearly competent to 
 the legislature to confide to a municipal council or any other 
 
 (x) 18 O. A. R. at p. 585. See also per Spragge, C. in Leprohon v. 
 Ottawa, 2 O. A. R., 522, ante, p. 3SU.
 
 THE B. X. A. ACT SEC. 92, S.-S. 8. 
 
 body of its own creation, or to individuals of its selection, 
 authority to make by-laws or resolutions as to subjects specified 
 in the enactment with the object of carrying it into effect "; 
 but, nevertheless, by reason of the constitutional connec- 
 tion above referred to, he gave the term "municipal insti- 
 tutions " the wide scope we have mentioned. 
 
 As indicated in the above cases in Ontario and Quebec, 
 the municipal institutions in the various pre-Confederation 
 provinces were widely dissimilar (t), ranging from the (for 
 those days) very complete system of Upper Canada to the 
 very incomplete and primitive methods of local government 
 in vogue in New Brunswick. In fact, the maritime pro- 
 vinces can hardly be said to have had any system of muni- 
 cipal government, and the systems of Upper and Lower 
 Canada were by no means identical. Now, admitting, for 
 the sake of the argument, that the term " municipal institu- 
 tions" is to be construed according fc> the meaning attached 
 to it in the minds, not of - those by whom but of those for 
 whom it was passed, it is not conceivable that this Imperial 
 Act is to receive a construction geographically variable (u). 
 The decisions above noted, therefore, put the Imperial par- 
 liament in the peculiar position of having used, as to all the 
 provinces, a phrase winch, at .the date of Confederation, had 
 a different meaning in the different provinces, intending, 
 without expressly saying so, that the phrase should bear 
 the meaning attached to it in one particular province, with- 
 out indicating \vhich. 
 
 It seems to us that such an interpretation must be put 
 upon this sub-section as will obviate these difficulties. 
 "Municipal institutions" is but another form of expression \ 
 
 (t) See Slavin v. Orillia (Ontario), Suite v. Three Rivers (Quebec), 
 Keefe v. McLennan (Nova Scotia), and Reg. v. Justices of Kings (Xe%v 
 Brunswick). 
 
 (ti) " The Act placed the constitutions of all the provinces on the same 
 level, and what was true with respect to the legislature of Ontario had 
 equal application to the legislature of New Brunswick." Per Lord Wat- 
 son, in Liquidators v. Receiver-General, Times L.R. Vol. VIII., p. 677.
 
 444 THE B. N. A. ACT SEC. 92, S.-S. 5. 
 
 for local self-government by boards or corporate bodies, 
 entrusted with powers of administration and, to some 
 extent, of legislation but delegated powers merely. Irre- 
 spective of detail this was a familiar phase of political 
 organization. The essentials of a municipality would appear 
 to be, first, territorial limitation ; and, secondly, the organi- 
 zation therein of the executive and legislative machinery 
 and staff for the administration of local affairs. Under a 
 "unitarian" form of government power all flows from the 
 one source, but under a dual government power over 
 any given subject matter must come from, and the mode of 
 its exercise be regulated by, that legislature which lias 
 itself power over the particular subject matter. Given the 
 municipalities "instituted" under provincial legislation, the 
 Dominion parliament as well as the provincial legislatures 
 can confer on such municipalities powers of local self-gov- 
 ernment, each in relatioji to matters within its own com- 
 petence (v). The vast majorities of the powers exercisable 
 by municipal bodies throughout Canada are conferred by 
 the provincial legislatures, because nearly all those matters 
 which touch the daily life of a man, and regulate his rights 
 and duties as a citizen of a municipality, are comprehended 
 within some one or other of the various sub-sections of sec- 
 tion 92. Very few, if any, of the cases which have arist/n 
 under the B. N. A. Act, touching the powers of municipal 
 bodies, depend upon a wider scope being given to this sub- 
 section 8, than we have given it. Sub-sections 2, 7, 9, 10, 13, 
 14, 15 and 16 of section 92, suffice to sustain the exercise of 
 municipal powers in all cases in which it has been ques- 
 tioned (w) ; but that a provincial legislature cannot deleuat- 
 to a municipal or other body created by it, power over any 
 subject matter not, by the B. N. A. Act allotted to such 
 provincial legislature, is a view which seems to be forced 
 
 () The Canada Temperance Act is an example of power conferred 
 and duties imposed by Dominion legislation. 
 
 (w) These cases have all been noted under these various sub-sections.
 
 THE B. N. A. ACT SEC. 92, S.-S. 9. 
 
 upon us by the exhaustive character of the division effected 
 by that Act, and the exclusive character of the jurisdiction 
 conferred upon our legislative bodies, Dominion and pro- 
 provincial. 
 
 Under this sub-section we should, perhaps, note the case 
 of Reg. ex rel McGuire v. Birkett (x), in which it has lately 
 been held that a provincial legislature has the exclusive 
 right to designate the judicial officer by whom controverted 
 municipal election cases are to be determined. This is a 
 matter clearly relating to municipal organization, and has 
 no relation to the nature of the powers to be exercised by 
 municipal bodies or officers thereof. We note it here rather 
 than under sub-section 14, because of the expression of 
 opinion by the Privy Council in Valin v. Langlois (y) that 
 the trial of election cases does not "quite plainly" come 
 within " the administration of justice in the province." 
 
 9. Shop, Saloon, Tavern, Auctioneer, 
 and other Licenses in order to the raising 
 of a Revenue for Provincial, local, or 
 municipal purposes. 
 
 The scope of this sub-section is limited by the last 
 clause, in order to the raising, etc. (z), and in Russell v. 
 The Queen (a), it was held that the Canada Temperance 
 Act, is not an infringement on the powers of the provincial 
 legislatures under this sub-section : 
 
 " The Act in question is not a fiscal law ; it is not a law for 
 raising revenue ; on the contrary, the effect of it may be to 
 destroy or diminish revenue ; indeed, it was a main objection to 
 the Act, that in the city of Fredericton it did, in point of fact, 
 
 (.r) 21 O. R. 162. 
 
 (y) 5 App. Gas. at p. 119. 
 
 (z) Sae Three Rivers v. Suite, 5 Leg. News 330, 2 Cart. 280. This 
 does not conflict with the views expressed in earlier cases in Ontario that 
 this sub-section does not exhaust the powers of a provincial legislature in 
 relation to the liquor traffic. 
 
 (a) 7 App. Cas. 829.
 
 THE B. N. A. ACT SEC. 92, S.-S. 9. 
 
 diminish the sources of municipal revenue. It is evident, there- 
 fore, that the matter of the Act is not within the class of sub- 
 jects No. 9, and consequently that it could not have been passed 
 by the provincial legislature by virtue of any authority conferred 
 upon it by that sub-section." 
 
 Referring to what we have said in the notes to sub- 
 section 8, it is to be noticed that in Russell v. The Queen 
 the effect of sub-section 8 upon the questions there under 
 consideration is not in any way touched upon (b). The 
 previous legislation of New Brunswick on the subject of 
 tavern licenses was looked at merely as the exercise of 
 power under this sub-section 9 ; and it was held that the 
 mere fact that Dominion legislation upon any matter 
 within its legislative competence might prejudicially affect 
 the revenue derivable from license fees imposed under this 
 sub-section 9, would in no way invalidate such Dominion 
 legislation (c). 
 
 In the notes to sub-section 2 of section 92 reference 
 was made to the case of Attorney-General (Quebec) v. The 
 Queen Insurance Co. (d), in which a license tax (so called) 
 imposed upon insurance companies, payable not upon the 
 taking out of the license, but upon the issue of policies, 
 and to an amount depending upon the amount of premium 
 payable upon a policy, was held not to be a license tax at 
 all, but a stamp duty : 
 
 " Now, the first point which .strikes their Lordships, and will 
 strike every one as regards this Licensing Act, is that it is a com- 
 plete novelty. No such Licensing Act has ever been seen before. 
 It purports to be a Licensing Act, but the licensee is not com- 
 pelled to pay anything for the license, and, what is more singular, 
 is not compelled to take out the license because there is no penalty 
 at all upon the licensee for not taking it up ; and, further than 
 that, if the policies are issued with the stamp, they appear to be 
 valid, although no license has been taken out at all. The result, 
 
 (b) See Re Local Option Act, 18 O. A. R. 572. 
 
 (c) See ante, p. 213, et seq. 
 
 (d) 3 App. Gas. 1090.
 
 THE B. X. A. ACT SEC. 92, S.-S. 9. 447 
 
 therefore, is, that a license is granted which there are no means 
 of compelling the licensee to take, and which he pays nothing 
 for if he does take; which is certainly a singular thing to be 
 stated of a license. They say on the face of the statute, " the price 
 of each license shall consist," and so on. But it is not a price 
 to be paid by the licensee. It is a price to be paid by anybody 
 who wants a policy, because, without that, no policy can be ob- 
 tained, It may be that the company buys the adhesive stamps, 
 and affixes them ; or it may be that the assured buys the adhesive 
 stamps and affixes them, or pays an officer of the company the 
 money necessary to purchase them and affix them ; but whoever 
 does it complies with the Act. 
 
 Another observation which may be made upon the Act is 
 this : that, if you leave out the clauses about the license, 
 the effect of the Act remains the same. It is really nothing 
 more nor less than a stamp Act if you leave out these clauses. 
 If you leave out every direction for taking out a license, and 
 everything said about the price of a license, and merely leave 
 the rest of the Act in, the government of the province of 
 Quebec obtains exactly the same amount by virtue of the statute 
 as it does with the license clauses remaining in the statute. The 
 penalty is on the issuing of the policy, receipt or renewal ; it is 
 not a penalty for not taking out the license. The result there- 
 fore is this, that it is not in substance a license Act at all. It 
 is nothing more or less than a simple stamp Act on policies 
 with provisions referring to a license, because it must be pre- 
 sumed, the frarners of the statute thought it was necessary in 
 order to cover the kind of tax in question with legal sanction, 
 that it should be made in the shape of the price paid for a 
 license." 
 
 In the notes to sub-section 2 (ante, p. 430) will also 
 be found a reference to the cases involving the question 
 whether these license fees are to be considered direct or in- 
 direct taxation. See Pigeon v. The Recorder's Court (e), 
 where the effect of the decision in Bank of Toronto v. 
 Lambe (/), seems to have been considered to be, in effect, 
 that all these license fees are direct taxation. It is to be 
 
 (e) 17 S. C. R. 495. (/) 12 App. Cas. 587.
 
 448 THE B. N. A. ACT SEC. 92, S.-S. 10. 
 
 noted, however, that in Bank of Toronto v. Lambe, the 
 Committee speak of " direct taxation and licenses." The 
 difference of opinion, therefore, which may very reasonably 
 exist upon the point would be sufficient warrant for the 
 insertion, by the framers of the B. N. A. Act, of this sub- 
 section " by way of abundant caution." 
 
 If the decision in Severn v. Reg. (g\ that a brewer's 
 license cannot be imposed by a province, is still law, it can 
 only be upon the ground that it is " indirect " taxation and 
 not ejusdem generis with the licenses particularly men- 
 tioned in this sub-section. If it is " direct " taxation, it 
 does not matter whether it is or is not ejusdem generis, for 
 Bank of Toronto v. Lambe would distinctly uphold it. 
 
 10. Local Works and Undertakings, 
 other than such as are of the following 
 classes, 
 
 a. Lines of Steam or other Ships, 
 
 Eailways, Canals, Telegraphs, 
 and other works and under- 
 takings connecting the Pro- 
 vince with any other or others 
 of the Provinces, or extending 
 beyond the limits of the Pro- 
 vince : 
 
 b. Lines of Steam Ships between the 
 
 Province and any British or 
 Foreign Country : 
 
 c. Such works as, although wholly 
 
 situate within the Province, are 
 before or after their execution 
 declared by the Parliament of 
 Canada to be for the general 
 advantage of Canada or for the 
 
 (g) 2 S. C. R. 70 ; see ante, p. 364.
 
 THE B. X. A. AC" 11 SEC. 92, S.-S. 10, 11. 449 
 
 advantage of two or more of the 
 Provinces. 
 
 11. The Incorporation of Companies 
 with Provincial objects. 
 
 The authorities upon these two sub-sections so ran into 
 each other that it will simplify matters if we discuss them 
 together. Their connection is obvious, the " provincial 
 objects " for which incorporation is sought under sub-sec- 
 tion 1 1 being, in probably the majority of cases, " local 
 works and undertakings " falling within sub-section 10. 
 The power lodged by exception (c) in the hands of the 
 Dominion government gives that government the anoma- I 
 lous privilege of defining its own sphere of authority, in/ 
 reference to these matters, as against the provinces. Muchi 
 the same power is vested in Congress in reference to 
 " internal improvements," and this has been the subject of 
 much adverse comment from those who view with alarm 
 the encroachment of the central authority. With this 
 phase of the question, however, we should not perhaps 
 concern ourselves in this place, for, at any given moment of 
 time, the line of division is a legal one, though subject to 
 be thereafter shifted at the will of the parliament of 
 Canada. 
 
 It has been held by the Court of Queen's Bench of 
 Quebec (h) that all works which are wholly within one 
 province, whether the undertaking to which they belong be 
 for a commercial purpose or otherwise, are within the con- 
 trol, and subject to the legislation of the province in which 
 they are situate, unless they are by the parliament of 
 Canada declared to be for the general advantage of Canada, 
 or for the advantage of two or more of the provinces. The 
 Dominion parliament cannot, it was held, without such 
 declaration, authorize a company to establish in two or 
 
 (h) Reg. v. Mohr, 7 Q. L. R. 183, 2 Cart. 257. 
 CAN. CON. 29
 
 450 THE B. X. A. ACT SEC. 92, S.-S. 10, 11. 
 
 more provinces, works needing special legislative authority, 
 and which are in their nature local in each province, the 
 jurisdiction in such case to give the needed authority being 
 determined by the location and object of the works, and not 
 by the circumstance that the company is authorized to make 
 them in several provinces. 
 
 Applying the law so laid down, the Dominion Act (43 
 Vic. c. 67), incorporating the Bell Telephone Company, and 
 authorizing the establishment by that company of telephone 
 lines in the several provinces of the Dominion, but which 
 contained no provision as to utilizing their powers for the 
 purpose of connecting two or more provinces, was declared 
 ultra vires. Dorion, C.J., says: 
 
 "If the Dominion cannot incorporate separate companies 
 for the purpose of establishing separate lines of telegraph in one, 
 or two, or more of the provinces, unless such lines are to con- 
 nect two or more provinces, or extend beyond the limits of one 
 province, or are expressly declared to be for the advantage of 
 the Dominion, or of two or more provinces, it. is because by 
 their nature these separate telegraph lines are local works and 
 undertakings, subject to the exclusive control of the provincial 
 legislatures. 
 
 "And if the Dominion cannot authorize separate companies 
 to establish such separate lines of telegraph, whence could it 
 derive its authority to incorporate one company to establish 
 those several works ? It is evident that the nature and charac- 
 ter of such undertakings cannot be altered from being local 
 undertakings to become general by the mere fact that they are 
 to be established by one company instead of several companies. 
 Their character is determined by their location and object, or 
 by an express declaration of the Dominion parliament, and not 
 by the accident that the same company is authorized to make 
 them all." 
 
 In view, however, of the judgment of the Judicial Com- 
 mittee of the Privy Council, in the case about to be noted 
 ( ' '). Regina v. Mohr can no longer be considered a binding 
 
 (i) Colonial Bldg. Ass. v. Atty.-Genl. of Quebec, 9 App. Gas. 1")7.
 
 THE B. X. A. ACT SEC. 92, S.-S. 10, 11. 451 
 
 authority even in Quebec so far, at least, as it declared 
 the entire invalidity of the Act of incorporation. The larger 
 question as to the subjection of such a company to pro- 
 vincial law^-just how far the Dominion parliament can go, 
 beyond merely conferring corporate capacity is not touched 
 upon in the judgment. It should be pointed out, perhaps, 
 that no doubt was expressed by the court as to the power of 
 the Dominion parliament to authorize the incorporation of 
 a company, with power to establish general telephone com- 
 munication throughout the various provinces of the Do- 
 minion, or between any two of them. The judgment pro- 
 ceeded solely upon the ground that the Act in question gave 
 the company no power to establish such a system, or to make 
 such connection between two provinces. The work which 
 was actually being carried on, under this statute, was held to 
 be a local work falling within sub-section 10, and being- 
 such, it could only be authorized by a provincial Act. The 
 judgment of the Privy Council, however, distinctly enunci- 
 ates that the territorial extensibility of the power, and not 
 the extent to which it is actually exercised, is to decide 
 the question as to which legislature should grant a charter 
 of incorporation. 
 
 The power to incorporate companies with powers extend- 
 ing beyond one province, is clearly with the parliament 
 of Canada, and the fact that a company, so incorporated, 
 may not see fit to extend its operations beyond one pro- 
 vince, does not affect its status as a duly incorporated com- 
 pany, or render its Act of incorporation (if incorporated 
 by Act of parliament) ultra vires. The difference between 
 a Dominion and a provincial company is in the territorial 
 sphere within which the company's powers may be, not 
 within which they are actually, exercised. 
 
 In Clarke v. Union Fire Insurance Co. (j), it was held 
 by the Master in Ordinary (Mr. Hodgins, Q.C.), that an in- 
 
 (j) 10 P. R. (Ont.) 313. The affirmance of this judgment on appeal 
 does not touch the constitutional point ; see 6 O. R. 223.
 
 452 THE B. X. A. ACT SEC. 92, S.-S. 10, 11. 
 
 surance company incorporated under a provincial statute 
 can enter into insurance contracts abroad, i.e., insuring 1 pro- 
 perty situated out of the province. Sed quwre. No doubt 
 it can validly contract in matters collateral to the objects 
 for which it was incorporated, but (apart from the view 
 which might be taken in foreign courts if such contract 
 were sued upon there) it is submitted that, in respect of 
 such insurance contracts, the company must be treated by 
 the courts of these provinces as an unincorporated associa- 
 tion of individuals. 
 
 In European and X. A. Railway Company v. Thomas 
 (k), a provincial legislature was held by the Xew Bruns- 
 wick Supreme Court to be entitled to legislate with respect 
 to a provincial railway running only to the boundaries of the 
 province, such railway being a local work and undertaking 
 within sub-section 10, although, as appeared by the facts of 
 that case, legislation had been procured in the State of 
 Maine incorporating an American company to build a rail- 
 way in that State to connect with the provincial railway 
 in question. 
 
 This sub-section 10 was considered by the Privy Council 
 in Dow v. Black (I), in which a provincial Act authorizing 
 a municipality to grant a bonus to a railway company 
 extending beyond the province, was held to fall within 
 sub-section 2 of section 92, ante, or, if not under that sub- 
 section, then under sub-section 16, as to which see post. It 
 was held not to be touched by sub-section 10 at all. A 
 question, however, was raised in that case which the Com- 
 mittee abstained from deciding, namely does exception (a) 
 apply to a railway extending from one province, not into 
 another, but into a foreign country ? The limitation of 
 exception (b) to steamship lines was urged in support of 
 the view that a provincial legislature has power to enact 
 laws as to railways extending from one province into a 
 
 (k) 1 Pug. 42, 2 Cart. 439. 
 (1) L. R. 6 P. C. 272.
 
 THE B. X. A. ACT SEC. 92, S.-S. 10, 11. 453 
 
 foreign country. For reasons which will be found dis- 
 cussed in chapter IX., ante, p. 185, et seq., it is submitted 
 that a provincial legislature has no such power, nor indeed 
 has the Dominion parliament, so far as the operation of the 
 road without Canada is concerned. So far as the incorpo- 
 ration of any such company is concerned, sub-section 11 
 would appear to prevent a provincial legislature from 
 passing any laws in reference thereto. The question of 
 the status and rights of a corporation without the limits of 
 the country under whose laws it is incorporated is not 
 within the scope of this work, being a matter of inter- 
 national, rather than of colonial, law. 
 
 A number of very interesting cases have arisen involv- 
 ing consideration of the position occupied by federal 
 " works and undertakings " and federal companies in refer- 
 ence to provincial law upon matters within the legisla- 
 tive competence of a provincial legislature and vice versa. 
 In reference to the incorporation of companies with objects 
 other than provincial and other than those covered by the 
 exceptions to sub-section 10, no difficulty perhaps should 
 arise. For the very same reasons which led us to limit the 
 scope of the term " municipal institutions," we submit that 
 a company incorporated under Dominion legislation can 
 exercise no power which its creator could not directly exer- 
 cise ; its Act of incorporation can confer corporate capacity 
 merely and powers in relation to matters within the legis- 
 lative competence of that creator. We have already 
 touched upon this question (in} and shall refer in a moment 
 to certain cases which, we think, bear out the view we have 
 ventured to express. As to works and undertakings falling 
 within the exceptions to sub-section 10 whether carried 
 on by a company or by individuals a somewhat different 
 question arises, namely what is covered by the term 
 " works and undertakings " ? but this question must, it 
 seems to us, be ultimately decided upon the very same prin- 
 
 (m) See ante, p. 353.
 
 454 THE B. N. A. ACT SEC. 92, S.-S. 10, 11. 
 
 ciple. The difficulty arises from the fact that a work or 
 undertaking may to-day be provincial and to-morrow 
 federal, and, it may be asked, how can the subject matter of 
 such work or undertaking be as a matter of law within 
 the legislative competence of a provincial legislature, one 
 day, and within that of the parliament of Canada the 
 next. Without attempting any elaborate discussion we 
 may venture the opinion that the solution of these ques- 
 tions will require a freer application of the rule laid down 
 in Bank of Toronto v. Lambe that legislation by one legis- 
 lature may limit the range open to the other (71) than has 
 yet been attempted. We now proceed to examine the 
 cases. 
 
 A railway incorporated under a provincial Act was 
 declared to be a federal railway under clause (c) of sub- 
 section 10, by an Act of the parliament of Canada. An 
 Act of the legislative assembly of Quebec amalgamating the 
 company at its own request with another provincial rail- 
 way, was held ultra vires by the Judicial Committee of the 
 Privy Council (o). 
 
 Mr. Justice Killam in Manitoba held in Canadian 
 Pacific Ry. v. North Pacific & Man. Ry. (p), that it is 
 within the competence of the Dominion parliament to 
 enact that no provincial railway shall cross a Dominion 
 railway without the approval of the Railway Committee of 
 the Privy Council. He treats the power to legislate in re- 
 ference to " crossings " as incidental to the power of the 
 Dominion parliament in relation to general undertakings 
 as well as to the power of the local legislatures in relation 
 to local undertakings within this sub-section. It would 
 seem therefore to depend upon the question which occu- 
 pied the ground first ? Unless this is to be the rule -for de- 
 termining these disputes, it must be conceded that, in this 
 
 (K; See ante, p. 213, and notes to sub-section 16, post, 
 (o) Bourgoin v. M. O. and O. Ry., 5 App. Gas. 381. 
 (p) Man. L. R.
 
 THE B. X. A. ACT SEC. 92, S.-S. 10, 11. 455 
 
 Instance at least, provincial legislation must be subordinate 
 to Dominion legislation. 
 
 Where it is necessary for a provincial railway in 
 Ontario to cross a Dominion railway, the company desiring 
 to effect such crossing, must procure the approval of the 
 Minister of Public Works for Ontario, as well as the 
 approval of the Railway Committee of the Privy Council 
 for the Dominion, and the railway companies concerned 
 cannot waive this provision (q). 
 
 The power of a provincial legislature to pass laws as to 
 insurance contracts entered into within the province by a 
 Dominion or a foreign corporation, was considered in Par- 
 sous v. Citizens (r), and the view of the Judicial Committee 
 of the Privy Council is thus expressed : 
 
 " It was contended, in the case of the Citizens Insurance 
 Company of Canada, that the company having been originally in- 
 corporated by the parliament of the late province of Canada, and 
 having had its incorporation and corporate rights confirmed by 
 the Dominion parliament, could not be affected by an Act of the 
 Ontario legislature. But the latter Act does not assume to in- 
 terfere with the constitution or status of corporations. It deals 
 with all insurers alike, including corporations and companies, 
 whatever may be their origin, whether incorporated by British 
 authority, as in the case of the Queen Insurance Company, or by 
 foreign or colonial authority, and without touching their status, 
 requires that if they choose to make contracts of insurance in 
 Ontario, relating to property in that province, such contract shall 
 be subject to certain conditions." 
 
 and this, it was held, a provincial legislature had full 
 power to do, under section 92, sub-section 13. 
 
 In Colonial Building and Investment Association v. 
 Attorney-General of Quebec (s), the Judicial Committee of 
 the Privy Council, referred to the hypothetical case, put by 
 way of illustration in Citizens v. Parsons, as to the applica- 
 
 (q) Credit Valley R. R. Co. v. Great Western Ry. Co., 25 Grant, 507. 
 (r) 1 App. Gas, 96. 
 (*) 9 App. Cas. 157.
 
 456 THE B. X. A. ACT SEC. 92, S.-S. 10, 11. 
 
 bility, to a Dominion company, of a provincial mortmain 
 law, and expressed their continued adherence to the view 
 then entertained as to the respective powers of the Do- 
 minion and provincial legislatures in regard to incorporated 
 companies. The two cases lay down very clearly that a 
 Dominion company can only exercise its powers subject to 
 the law of the particular province in which any of its 
 transactions may be carried on. In the first named case 
 the matter was merely put by way of illustration in refer- 
 ence, as we have said, to the operation of provincial mort- 
 main laws : 
 
 "Suppose the Dominion parliament were to incorporate a com- 
 pany with power, among other things, to purchase and hold lands 
 throughout Canada in mortmain, it could scarcely be contended 
 if such a company were to carry on business in a province where 
 a law against holding land in mortmain prevailed (each province 
 having exclusive legislative power over 'property and civil rights 
 in the province') that it could hold land in that province in con- 
 travention of the provincial legislation ; and, if a company were 
 incorporated for the sole purpose of purchasing and holding land 
 in the Dominion, it might happen that it could do no business 
 in any part of it, by reason of all the provinces having passed 
 mortmain Acts, though the corporation would still exist and pre- 
 serve its status as a corporate body." 
 
 This the Committee explain in the later case by saying 
 that they had not in view the special law of any one pro- 
 vince, nor the question whether the prohibition was absolute, 
 or only in the absence of the Crown's consent ; that their 
 object had merely been to point out that a corporation 
 could only exercise its powers, subject to the law of the 
 province, whatever that may be, in this regard. 
 
 In this connection "may be mentioned the case of Mc- 
 Diarmid v. Hughes (t), in which the Divisional Court of 
 the Queen's Bench Division (Armour, C.J., and Street, J.), 
 held that the Dominion parliament has power to enact 
 that a license from the Crown shall not be necessary 
 
 (t) 16 O. K. 570.
 
 THE B. X. A. ACT SEC. 92, S.-S. 10, 11. 457 
 
 to enable corporations to hold lands within the Dominion ; 
 and that a Dominion Act enabling a Quebec corporation to 
 hold lands in Ontario, would operate as a license ; a view 
 difficult to reconcile with the above cases. No doubt, as 
 put by the Chief Justice, an Imperial Act might be passed, 
 extending to all Her' Majesty's possessions, providing that 
 thereafter a license from the Crown should not be neces- 
 sary to enable any corporation to hold lands therein, but it 
 seems to us a non sequitur to say that an Act of the 
 Dominion parliament would have effect throughout the 
 Dominion in relation to matters over which, as between 
 the Dominion parliament and the provincial legislatures, 
 the latter have exclusive jurisdiction. The power of a 
 corporation to hold land is part of the law relating to real 
 property, and governed therefore by the l#x loci, and the 
 grant of a license from the Crown to hold lands, non 
 obstante the Mortmain Acts, must be made by the execu- 
 tive head of that government whose legislature has power 
 to pass laws in relation to real property within its terri- 
 torial limits. 
 
 In Monkhouse v. Grand Trunk R. R. (u). it was held 
 that a provincial statute which made provision as to 
 " frog-packing " applicable only " to every railway and 
 railway company in respect to which the legislature of 
 Ontario has authority to enact such provisions," did not 
 apply to the Grand Trunk R. R. Company, which falls 
 within exception (a) to this sub-section 10. Just what is 
 the scope of legislation relating to a work or undertaking 
 such as a railway connecting one province with another, 
 is left by this case still uncertain. Mr. Justice Patterson 
 puts his decision on the ground that the statute, there in 
 question, " which relates to the management and in some 
 respects to the construction of railways, and deals only 
 with railways as such " did not apply to the defendant 
 company ; and he expressly reserves the question how far 
 
 (w) 8 O. A. R. 637.
 
 458 THE B. N. A. ACT SEC. 92, S.-S. 10, 11. 
 
 such an undertaking may be affected by provincial legisla- 
 tion touching property and civil rights or other subjects 
 within the jurisdiction of the provincial legislatures. In 
 Canada Southern Railway v. Jackson (v), before the 
 Supreme Court of Canada, it was held that the Workmen's 
 Compensation for Injuries Act of Ontario (49 Vic. c. 28), 
 applied to the appellant company, notwithstanding that it 
 had been brought under the operation of the Government 
 Railways Act of the Dominion. Mr. Justice Patterson 
 says : 
 
 " It is not legislation respecting such local works and under- 
 takings as are excepted from the legislative jurisdiction of the 
 province by article 10 of section 92 of the B. N. A. Act. It 
 touches civil rights in the province. The rule of law which it 
 alters was a rule of common law in no way depending on or 
 arising out of Dominion legislation, and the measure is strictly 
 of the same class as Lord Campbell's Act, which, as adopted by 
 provincial legislation, has been applied without question to all 
 our railways." 
 
 The difference in opinion which is still possible upon 
 this question is made manifest in McArthur v. N. and P. 
 Junction Ry. Co. (17 O. A. R. 86) in which the Court of 
 Appeal was evenly divided upon the question of the 
 validity of the clause in the Dominion Railway Act limit- 
 ing the time within which an action may be brought for 
 injury sustained " by reason of the railway. R. S. C. 
 c. 109, s. 27. Hagarty, C.J.O. and Osier, J.A. upheld the 
 enactment as being an almost essential part of railway 
 legislation, while Burton and Maclennan, JJ.A. considered 
 it an unnecessary interference with " property and civil 
 rights in the province." The injury complained of, we 
 should perhaps state, was trespass to timber in connection 
 with the construction and operation of the road. 
 
 As to the applicability of the Dominion Winding-up 
 Acts to companies incorporated under provincial legislation, 
 
 (v) 17 S. C. R. 316.
 
 THE B. N. A. ACT SEC. 92, S.-S. 12. 459 
 
 see Shoolbrecl v. Clarke (w) and other cases under section 
 91, sub-section 21, ante, p. 394. 
 
 In like manner, companies incorporated under provincial 
 legislation, for the purpose of carrying on these " local 
 works and undertakings," have without hesitation been held 
 to be subject to the provisions of Dominion law and legisla- 
 tion upon the subject of "navigation and shipping." See 
 Qujddy River Boom Co. v. Davidson (x) and other cases 
 noted under section 91, sub-section 10. 
 
 As to the power of a provincial legislature over a cor- 
 poration existing prior to Confederation, see Dobie v. Tem- 
 poralities Board (y) cited in the notes to section 129, post. 
 
 In Jones v. Canada Central (z) it was held that provin- 
 cial legislation in reference to the bonds of a railway 
 company falling within this sub-section 10 is operative to 
 govern bonds held out of the province. Mr. Justice Osier 
 says : 
 
 " I am of opinion that where debts and other obligations 
 arise out of, or are authorized to be contracted under, a local Act 
 which is passed in relation to a matter within the powers of the 
 local legislature, such debts or obligations may be dealt with or 
 affected by subsequent Acts of the same legislature in relation to 
 the same matter, and this notwithstanding that by a fiction of 
 law such debts may be domiciled out of the province." 
 
 12. The Solemnization of Marriage in 
 the Province. 
 
 This sub-section will be found noted, so far as is neces- 
 sary, in the notes to sub-section 26 of section 91. We may 
 also refer to chapter V., ante, page 116, et seq., as to the ex- 
 
 (w) 17 S. C. E 265. 
 
 (x) 10 S. C. R. 222. 
 
 (y) 1 App. Cas. 135 ; see ante, p. 200. 
 
 (z) 46 U. C. Q. 15. 250. See Kedfield v. Corporation of Wickham, 13 
 App. Cas. 467, as to the right of an execution creditor to sell under 
 ji.fa., a Canadian railway as a whole, and the difference, in this respect, 
 between English and Canadian law.
 
 460 THE B. X. A. ACT SEC. 92, S.-S. 13. 
 
 tent to which English marriage law is in force in Upper 
 Canada. Owing to the decided religious convictions of 
 \ Roman Catholics upon this question, there has been no 
 general legislation by the Dominion parliament upon the 
 subject of marriage and divorce ; and its jurisdiction under 
 sub-section 26 of section 91, has been limited to the passage 
 \of private Divorce Acts. 
 
 13. Property and Civil Eights iu the 
 Province. 
 
 In what may be termed the leading case as to the mean- 
 ing to be attached to this sub-section, and the range of. 
 matters embraced therein Citizens v. Parsons (a) it was 
 contended that "civil rights" should be limited to such rights 
 only as flowed from the law, e.g., the status of persons, and 
 should not be interpreted to cover rights arising from con- 
 tract. Had this contention prevailed, the provinces would 
 have been driven out of the larger part of the field of 
 activity, which now, by the authoritative deliverance of the 
 Judicial Committee of the Privy Council in that case, they 
 are undoubtedly entitled to occupy. 
 
 " Their Lordships cannot think that the latter construction 
 is the correct one. They find no sufficient reason in the 
 language itself, nor in the other parts of the Act, for giving so 
 narrow an interpretation to the words 'civil rights.' The words 
 are sufficiently large to embrace, in their fair and ordinary mean- 
 ing, rights arising from contract; and such rights are not included 
 in express terms in any of the enumerated classes of subjects in 
 section 91. 
 
 " It becomes obvious, as soon as an attempt is made to con- 
 strue the general terms in which the classes of subjects in sec- 
 tions 91 and 92 are described, that both sections and the other 
 parts of the Act must be looked at to ascertain whether language 
 of a general nature must not by necessary implication or reason- 
 able intendment be modified and limited. In looking at section 
 91, it will be found not only that there is no class including, 
 
 (a) 7 App. Cas. 96.
 
 THE B. X. A. ACT SEC; 32. S.-S. 13. 
 
 generally, contracts and the rights arising from them, but that 
 one class of contracts is mentioned and enumerated, viz : ' 18. 
 bills of exchange, and promissory notes,' which it would have 
 been unnecessary to specify, if authority over all contracts, and 
 the rights arising from them, had belonged to the Dominion 
 parliament. 
 
 " The provision found in section 94 of the Act, which is one \ 
 of the sections relating to the distribution of legislative powers, 
 was referred to by the learned counsel on both sides, as throwing 
 light upon the sense in which the words 'property and civil 
 rights' are used. By that section, the parliament of Canada is 
 empowered to make provision for the uniformity of any laws 
 relative to 'property and civil rights' in Ontario, Nova Scotia 
 and New Brunswick, and to the procedure of the courts in these 
 three provinces, if the provincial legislatures choose to adopt the 
 provisions so made. The province of Quebec is omitted from 
 this section for the obvious reason that the law which governs 
 property and civil rights in Quebec is, hi the main, the French 
 law as it existed at the time of the session of Canada, and not' 
 the English law which prevails in the other provinces. The 
 words ' property and civil rights ' are, obviously, used in the same; 
 sense in this section as in No. 13 of section 92, and there seerns\ 
 no reason for presuming that contracts, and the rights arising 
 from them, were not intended to be included in this provision for 
 uniformity. If, however, the narrow construction of the words, 
 ' civil rights ' contended for by the appellants were to prevail, the 
 Dominion parliament could, under its general power, legislate in 
 regard to contracts in all and each of the provinces, and, as a 
 consequence of this, the province of Quebec, though now 
 governed by its own Civil Code, founded on the French law, as 
 regards contracts and their incidents, would be subject to have 
 its law on that subject altered by the Dominion legislature, and 
 brought into uniformity with the English law prevailing in the 
 other three provinces, notwithstanding that Quebec had been 
 carefully left out of the uniformity section of the Act. 
 
 "It is to be observed that the same words 'civil rights' are 
 employed in the Act of 14 Geo. Ill, chapter 83, which made 
 provision for the government of the province of Quebec. Section 
 8 of that Act enacted ' that His Majesty's Canadian subjects,
 
 462 THE B. N. A. ACT SEC. 92, S.-S. 13. 
 
 within the province of Quebec, should enjoy their property, usages, 
 and other civil rights as they had before done, and that in all 
 matters of controversy relative to propeity and ciril n't/lit*, resort 
 should be had to the laws of Canada, and be determined agree- 
 ably to the said laws.' In this statute, the words, 'property and 
 civil rights ' are plainly used in their largest sense ; and there 
 is no reason for holding that in the statute under discussion, 
 they are used in a different or narrower one." 
 
 The Quebec Act, 1774, referred to in the last paragraph 
 of this quotation, draws a sharp distinction between the 
 criminal and the civil law (6), the two branches together 
 being treated as inclusive of the whole field ; and the Com- 
 mittee, in holding that the same wide meaning must be 
 given to the term "property and civil rights" in this sub- 
 section, have, it may be thought, decided that the various 
 other sub-sections of section 92 are to be treated as 
 unnecessary surplusage. A reference, however, to those 
 other sub-sections will show that with one or two excep- 
 tions, they treat, not of civil rights as between subject and 
 subject, but of what may be called political rights, as 
 between the subject, on the one hand, and the provincial 
 government and bodies organized for the purposes of local 
 ' self-government throughout the various sections of the prov- 
 ince, on the other. The judgment of the Committee does. 
 however, indicate a very wide range of subjects as included 
 within this sub-section a range subject only to the terri- 
 torial limitation indicated by the words " in the province,'* 
 and subject also, as the. cases show, to be cut down to the 
 extent necessary to give proper play to the powers of the 
 Dominion parliament under the various sub-sections of 
 section 91. It would seem as if this sub-section really 
 throws the largest " residuum " to the provinces. 
 
 As to the first limitation, reference may be had to Re 
 Goodhue (c), in which it was held by some of the judges 
 
 (6) See ante, p. 105. 
 
 (c) 19 Gr. 366. See Jones v. Canada Central, 46 U. C. Q. B. 250, for 
 some observations by Osier, J. (now J.A.), upon lie Goodhue.
 
 THE B. X. A. ACT SEC. 92, S.-S. 13. 463 
 
 that a provincial statute cannot prejudicially affect the 
 rights of a person living out of the province in respect to 
 personal property within. If, however, this is to be taken 
 as more than a decision as to the proper interpretation to 
 be given to the language of the provincial Act there in 
 question, we find it very difficult to agree with it. Al- 
 though, in a sense, that the law of the domicile governs 
 as to personal property is a rule of private international 
 law which has been admitted into the jurisprudence 
 of many modern states, it is only so in the absence of 
 express legislation in the country in which it is sought to 
 be enforced, and, viewing the matter as a question of 
 power, it seems to us that provincial legislation altering the 
 law in this respect would fall within sub-section 16 of sec- 
 tion 92. It may be thought that this view is inconsistent 
 with what has been laid down in chapter IX., ante. The 
 question is certainly one of considerable difficulty, but it 
 seems to us that there is a clear distinction between rights 
 arising from contract accrued abroad irrespective altogether 
 of the locality of the property covered by the contract, 
 and rights to be enjoyed by foreigners in respect to 
 property situate in the province. There is no doubt a well 
 recognized distinction between land and movables, but a 
 reference to Von Savigny and other writers on this question 
 of international law, will show that the rule is not by any 
 means universal ; and that, in the jurisprudence of many 
 modern states, the lex loci governs as well in reference to 
 movables as to land and other immovable property. 
 
 We may also refer to the language of the Chancellor of 
 Ontario, in Re North Perth (d). The particular passage to 
 which we refer will be found quoted at length, ante, p. 287. 
 What is there said although spoken in reference to rights 
 enjoyed by voters as citizens of Canada accords with the 
 view above expressed, that this sub-section is not to be 
 taken as dealing with a man's rights in relation to the 
 
 (d) 21 O. E. 538.
 
 464 THE B. X. A. ACT SEC. 92, S.-S. 13. 
 
 organized political institutions of a province, but, as the 
 Chancellor puts it, " regards mainly the meum and taum 
 as between citizens." See also the language of the Judi- 
 cial Committee of the Privy Council in Theberge v. 
 Landry (e). 
 
 In reference to the second limitation above noted, that 
 while this sub-section is to be read in the very wide sense 
 indicated by the Committee in Citizens v. Parsons, it is 
 subject always to be cut down and limited by Dominion 
 laws passed in relation to matters falling fairly within any 
 of the sub-sections of section 91, it may, as we have inti- 
 mated in the notes to the opening clause of section 91 (/'), 
 be deemed questionable whether this sub-section 13 can be 
 limited in its scope by anything short of general legisla- 
 tion by the Dominion parliament in reference to the 
 various matters comprised in the several sub-sections of 
 section 91. That question has been fully discussed in 
 those notes ; but we may here mention that, in the various 
 decisions in which Dominion legislation has been upheld 
 notwithstanding the provisions of this sub-section, such 
 legislation has been general legislation. The decision of 
 the Supreme Court in Quirt v. The Queen (g), is we think 
 the only exception. The decision of the Privy Council in 
 Colonial Building Association v. Attorney-General (Quebec) 
 (A,), while it, in effect, upheld the validity of a Dominion 
 Act incorporating the appellant company, lays down that 
 the company, so incorporated, is subject to the local laws 
 of the province in which its business may be carried on 
 such, for instance, as laws limiting the right of a corpora- 
 tion to hold land. The case of Citizens v. Parsons (i), 
 affords another instance the appellant company in that 
 case being held to be subject to provincial laws as to the 
 form and effect of contracts entered into by it within the 
 
 {e) 2 App. Gas. 102 ; see ante, p. 288. (h) 9 App. Cas. 157. 
 
 (/) Ante, p. 350, et seq. (i) 7 App. Cas. 96; see ante, p. 353. 
 
 (g) 19 S. C. R. 510.
 
 THE B. N. A. ACT SEC. 92, S.-S. 13. 465 
 
 province. Upon this question further reference may be 
 had to the notes to sub-sections 10 and 16 of this sec- 
 tion 92. 
 
 Reverting, now, to the question of the extent to which 
 Dominion legislation of a general character, in reference to 
 matters falling within any of the sub-sections of section 91, 
 may override provincial law as to property and civil 
 rights, we uiay refer to Gushing v. Dupuy (j ), in which the 
 Judicial Committee of the Privy Council determined the 
 scope proper to be given to the terms " bankruptcy and 
 insolvency," in sub-section 21 of section 91. The passage 
 will be found quoted in the notes to that sub-section. We 
 may refer also to Doyle v. Bell (k), in which it was held by 
 the Court of Appeal for Ontario that Dominion legislation 
 in reference to the conduct of elections of members of the 
 House of Commons of Canada, does not infringe upon the 
 powers of a provincial legislature under this sub-section or, 
 perhaps we should rather say, that this sub-section must be 
 read subject to the provisions of any Dominion Act dealing 
 with that subject. It should be noticed, however, that the 
 language of the judges in that case recognizes the distinction, 
 afterwards so clearly pointed out by the Chancellor in Re 
 North Perth, that the rights of an inhabitant of Ontario in 
 connection with Dominion elections, is one of his political 
 rights in Canada, rather than a civil right in any one 
 province. Hagarty, C.J.O., however, refers to a number of 
 the sub-sections of section 91 : any legislation upon which 
 must necessarily deal with rights of property and civil 
 rights in the different provinces, and to a certain extent 
 control and modify the provincial law which ordinarily 
 governs them. 
 
 In Russell v. The Queen (I), the Judicial Committee of 
 the Privy Council held that the Canada Temperance Act is 
 not an Act in relation to " property and civil rights in the 
 province " : 
 
 (j) 5 App. Cas. 409. (/fr) 11 O. A. R. 326. 
 
 (1) 7 App. Cas. 829. 
 CAN. Cos. 30
 
 466 THE B. N. A. ACT SEC. 92, S.-S. 13. 
 
 " Their Lordships cannot think that the Temperance Act in 
 question properly belongs to the class of subjects, ' property and 
 civil rights.' It has, in its legal aspect, an obvious and close 
 similarity to laws which place restriction on the sale or custody 
 of poisonous drugs, or of dangerously explosive substances. 
 These things, as well as intoxicating liquors, can, of course, be 
 held as property, but a law placing restrictions on their sale, 
 custody, or removal, on the ground that the free sale or use of 
 them is dangerous to public safety, n<l inakin// t criminal 
 offence punishable by fine or imprisonment to violate these 
 restrictions cannot properly be deemed a law in relation to 
 property in the sense in which those words are used in the 91st 
 section. What parliament is dealing with, in legislation of this 
 kind, is not a matter in relation to property and its rights, but 
 one relating to public order and safety. That is the primary 
 matter dealt with, and though incidentally the free use of things 
 in which men may have property is interfered with, that inci- 
 dental interference does not alter the character of the law. 
 Upon the same considerations, the Act in question cannot be 
 regarded as legislation in regard to civil rights. In however 
 large a sense these words are used it could not have been 
 intended to prevent the parliament of Canada from declaring 
 and enacting certain uses of property, and certain acts in 
 relation to property, to be criminal and wrongful. Laws which 
 make it a criminal offence for a man wilfully to set fire to his 
 own house on the ground that such an act endangers the public 
 safety, or to overwork his horse on the ground of cruelty to 
 the animal, though affecting, in some sense, property, and the 
 right of a man to do as he pleases with his own, cannot properly 
 be regarded as being legislation in relation to property or to civil 
 rights. Nor could a law which restricted the sale or exposure of 
 cattle having a contagious disease, be so regarded. Laws of 
 this nature, designed for the promotion of public order, safety, 
 or morals, and which subject those who contravene them 
 to criiiiinul prosecution and punishment, belong to the subject of 
 public wrongs rather than to that of civil rights. They are of a 
 nature which fall within the general authority of parliament to 
 make laws for the order and good government of Canada, und 
 hurt' ilirert relation tn m' in inn I line, which is one of the enumer-
 
 THE B. N. A. ACT SEC. 92, S.-S. 13. 467 
 
 ated classes of subjects assigned exclusively to the parliament of 
 Canada. It was said in the course of the judgment of this Board 
 in the case of the Citizens v. Parsons, that the two sections- 
 must be read together and the language of one interpreted, and, 
 where necessary, modified by that of the other. 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 province exclusive legislative 
 authority on the subject 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 discussion must always be determined in order to ascer- 
 tain the class of subject to which it really belongs." 
 
 There is much in this language which supports what we 
 have said in regard to Dominion legislation being limited to 
 general legislation upon the matters entrusted to it, as being 
 matters of common concern to the whole country. 
 
 It would seem, therefore, upon review of these authori-\ 
 ties that the words of this sub-section are to be inter- 
 preted in their largest sense, subject only to the territorial 
 limit to which we have referred ; and subject, also, to the 
 abstraction therefrom of so much of the field naturally 
 covered by them as is necessary to afford scope for the 
 operation of the powers bestowed upon the Dominion par- 
 liament by the various sub-sections of section 91. Just to 
 what extent such withdrawal from provincial jurisdiction, 
 may take place, depends upon the construction to be given 
 to section 91 and its various sub-sections. We may refer 
 in this connection to what was said in chapter X., ante, p.. 
 213, et seq., as to the possibility of legislation by one legis- 
 lature, Dominion or provincial, limiting the range open to> 
 the other. In this view it would appear that this sub- 
 section 13, is one, the scope of which will, from time to 
 time, grow narrower as the necessity for general legisla- 
 tion by the Dominion parliament, upon matters covered by 
 the various sub-sections of section 91, increases.
 
 THE B. N. A. ACT SEC. 92, S.-S. 14. 
 
 In the notes to other sections and sub-sections we have 
 cited the various cases in which this sub-section 13 of sec- 
 tion 92 has been invoked, and need here, therefore, merely 
 indicate the cases and the various sub-sections under which 
 they will be found noted (m). 
 
 14. The Administration of Justice in 
 the Province, including the Constitution, 
 Maintenance, and Organization of Pro- 
 vincial Courts, both of Civil and of Crim- 
 inal Jurisdiction, and including Procedure 
 in Civil Matters in those Courts. 
 
 Our judicial system has already received attention to 
 the extent of an entire chapter (n), and in the notes to sub- 
 section 27 of section 91 we have necessarily had to deal 
 with some phases of the criminal law, for which reasons we 
 need here deal merely with certain other details of the 
 general subject and collect those authorities which have not 
 yet been cited. As, however, we refrained, in commenting 
 upon sub-section 27 of section 91, from discussing "the con- 
 stitution of courts of criminal jurisdiction," there excluded, 
 here included, we may here refer to the difficulties which 
 have arisen in connection with the administration of 
 criminal justice, using the word "criminal" in the restricted 
 sense which, as has been pointed out, it bears in Canadian 
 jurisprudence. The constitution of courts of criminal juris- 
 diction is subject to the provisions of section 101, of which 
 more anon with the provincial governments ; the pro- 
 
 (m) Be Simmons and Dalton, 12 O. K. 505, ante, p. 286; Slavin v. 
 Orillia, 36 U. C. Q. B. 159, ante, p. 359 ; Beard v. Steele, 34 U. C. Q. B. 
 43, ante, p. 374 ; Reg. v. Robertson, 6 S. C. R. 52, ante, p. 385 ; Mer- 
 chants Bank v. Smith, 8 S. C. R. 512, ante, p. 387 ; Clarkson v. Ontario 
 Bank, 15 O. A. R. 166, ante, p. 395 ; Ee Wallace-Heustis Co., 3 Cart. 
 374, ante, p. 400 ; McDiarmid v. Hughes, 16 O. R. 570, ante, p. 456 ; 
 Monkhouse v. G. T. R. 8 O. A. R. 637, ante, p. 457 ; C. S, Ry. v. Jackson, 
 17 S. C. R. 316, ante, p. 458 ; McArthur v. N. & P. June. Ry. 17 O. A. R. 
 86, ante, p. 458 ; Reg. v. Wason, 17 O. A. R. 221, post, p. 478 ; Reg. v. 
 Robertson, 3 Man. L. R. 613, post, p. 480. 
 
 (n) Chapter XI., ante, p. 223.
 
 THE B. N. A. ACT SEC. 92, S.-S. 14. 469 
 
 cedure in criminal matters is exclusively with the Domin- 
 ion government; and already it is apparent that it is, in 
 many, if not most, instances, almost impossible to decide 
 with any reasonable certainty whether a law relates to 
 "constitution" or "procedure." In this sub-section, it should 
 be pointed out, the full rounded phrase is used "constitu- 
 tion, maintenance, and organization" and the difficulty 
 perhaps is rather to decide between "organization" and 
 "procedure." The authorities which deal with the question 
 of jurors and the position of the jury in relation to the 
 organization of a court have already been cited (o). A jury, 
 empanelled and sworn, is part of the "organization" of the 
 court; the selecting and summoning of the members of the 
 jury is "procedure" ! Whether a man accused of crime is 
 to be tried with or without a jury is question of " procedure " 
 and can only be determined by the parliament of Canada 
 (p). Consequently, in Reg. v. Toland (q)*it has just been 
 held that an Ontario Statute (35 Vic. c. 18, sec. 2) purport- 
 ing to give to a police magistrate power to try offences 
 under the Dominion Act respecting forgery is ultra vires, 
 there being no jury in connection with that tribunal, It 
 would appear that there is here occasion for "remedial" 
 legislation by the parliament of Canada; otherwise the 
 power to constitute courts of criminal jurisdiction is seri- 
 ously circumscribed. In its organization of those courts, a 
 province may rind it difficult to keep pace with the require- 
 ments of Dominion laws as to "procedure," unless the par- 
 liament of Canada delegates to the provinces the regulation 
 of all procedure in criminal matters, just as it has practically 
 done in the matter of the selecting and summoning of 
 jurors. Another course is open to the Dominion govern-' 
 ment, for by section 101 (see post) the parliament of Canada 
 may, "notwithstanding anything in this Act," constitute 
 additional courts for the better administration of the laws 
 of Canada, and whether the jurisdiction of such "additional" 
 
 (o) ante, p. 416, et seq. (p) Reg. v. Bradshaw, 38 U. C. Q. B. 564. 
 
 (q) Not yet reported ; July, 1892.
 
 470 THE B. N. A. ACT SEC. 92, S.-S. 14. 
 
 courts would be, or could be made to be, exclusive, would 
 not be of much practical moment, as by attention to " pro- 
 cedure" the provincial guns could be effectually spiked. 
 1 In treating of the question of the jurisdiction of courts, 
 /Dominion and provincial, we ventured to lay it down that 
 / the jurisdictional line in the case of the former is the line 
 which divides those subject matters over which the Do- 
 minion parliament has jurisdiction from those committed 
 to provincial legislatures, while as to provincial courts, 
 whether old or new, no such jurisdictional line exists. 
 Herein lies the anomaly of our system. The legislative 
 and executive departments of the federal government are, 
 so far as regards the judicial branch of the latter, and in the 
 absence of resort to section 101, divorced, and the enforce- 
 ment of the laws of Canada i.?., Dominion laws through 
 the courts is in the hands of the provincial governments. 
 To counterbalance one anomaly by another the appoint - 
 ' ment of part of the organization of the provincial courts is 
 with the Dominion government ! 
 
 In Regina v. Horner (r), the Court of Queen's Bench 
 (Quebec), upheld the Act of that province respecting dis- 
 trict magistrates and magistrates' courts, and the power of 
 the provincial executive to appoint such magistrates. Refer- 
 ence is made by Mr. Justice Ramsay, in delivering the 
 judgment of the court, to Regina v. Coote (*), decided in 
 the Privy Council, as expressly recognizing the power of 
 provincial legislatures to create new courts for the execu- 
 tion of the criminal law, as also to nominate the magistrates 
 to sit in such courts. "So much being established almost 
 all difficulty disappears. The Privy Council recognizes the 
 general principle that the executive power is derived from 
 the legislative power unless there be some restraining enact- 
 ment." It appeal's, we should perhaps say, from the report 
 of the case, that the Act in question expressly provided for 
 the appointment of "'such magistrates by the Lieutenant- 
 Govemor in Council. 
 
 (r) 2 Stepb. Dig. 450 ; 2 Cart. 317. () L. R. 4 P. C. 599.
 
 THE B. N. A. ACT SEC. 92, S.-S. 14. 
 
 471 
 
 To speak now of courts of civil jurisdiction, we may 
 note that in Ganong v. Bayley (t), in the New Brunswick 
 Supreme Court, it was held by the majority of the court 
 that an Act of the New Brunswick legislature establishing 
 commissioners' courts in that province, and for the appoint- 
 ment by the Lieutenant-Governer in Council of commis- 
 sioners to preside therein, was valid. The power of the 
 local legislature to establish courts seems to have been 
 treated as beyond question, the point more fully discussed ) 
 being as to the validity of the Act in so far as it con- 
 ferred on the Lieutenant-Governor of the province power i 
 to appoint the judges who should prpsid^ip sn^ Courts. 
 and the case, therefore, should perha^be noted rather as 
 
 an affirmance of the doctrine that an Act of provincial 
 legislation in reference to the exercise of the prerogatives 
 of the Crown in relation to matters falling within the 
 legislative competence of such legislature, is a proper 
 exercise of its legislative power.^ The opinions of Chief 
 Justice Allen and Mr. Justice Thiff, who dissented from the 
 judgment of the majority of the court, are placed upon the 
 ground that the exercise of this prerogative is, by the 
 B. N. A. Act, vested exclusively in the Governor-General 
 as Her Majesty's only representative in Canada. But, in 
 view of the authorities noted under section 58, ante, this 
 view is untenable. 
 
 As to the appointment of judges and officers connected 
 with the administration of justice reference may be had to 
 chapter XL (ante, p. 238, et seq.), and to the cases in the 
 foot note (u). 
 
 The question of the power of a provincial legislature 
 to regulate procedure affecting penal laws which such 
 legislature is authorized to enact (v), came before the Que- 
 
 (0 1 Pug. & Burb. 324 ; 2 Cart. 509. 
 
 (11) Reg. v. Reno, 4 P. R. (Ont.) 281 ; Reg. v. Bennett, 1 O. R. 445; 
 Richardson v. Ransom, 10 O. R. 387 ; Ex parte Williamson, 24 N. B. 64 ; 
 and E.r p.irle Perkins, ib. 66. 
 
 (r) See s-s. 15, post.
 
 472 THE B. N. A. ACT SEC. 92, S.-S. 14. 
 
 
 
 bee Courts in three early cases, and was very emphatically 
 affirmed. In Pope v. Griffith (w), a case arising under the 
 Quebec License Act, Mr. Justice Ramsay says : 
 
 M Appellant at once admits that the local legislature have the 
 power to attach a fine, penalty, or imprisonment, to the sale or 
 keeping of spirituous liquors without a license ; but that having 
 done that, a crime was created, and that all the procedure con- 
 nected with the infliction of punishment for this crime must 
 necessarily be fixed by parliament, and could not be fixed by the 
 legislature of the province. In support of this pretension appel- 
 lant maintains that every infraction of a public law to which any 
 penalty is attached is a crime. . . . Whatever may be the 
 definition of a crime, I would remind those who lean too much 
 upon definitions, of their danger ; it will not be denied that, in one 
 sense of the word, the act of which the appellant is accused, is a 
 crime ; but it is equally plain that it is not a crime in the acme of 
 .sub-section 27, section 91 of the B. N. A. Act. Now, if the signifi- 
 cation attached to the word " criminal " is restricted when re- 
 ferring to law in this sub-section, why should it be used in a 
 different sense when applied to procedure? It cannot be pre- 
 sumed that in one short paragraph, particularly a paragraph of 
 an enumeration of powers, the legislature should have intended 
 to apply two different meanings to the same word, especially 
 when by doing so they would be transferring the legisla- 
 tion with regard to a purely local matter to parliament. The 
 rule is all the other way." 
 
 In Ex parte Duncan (x), Mr. Justice Dunkin held that 
 34 Vic. c. 2 (Quebec) taking away the right to certioi-n /', 
 to remove proceedings in civil matters before a district 
 magistrate, was valid, and that under the term " civil 
 matters," a proceeding before a district magistrate for the 
 enforcement of penalties under a license law of the pro- 
 vince would be included. 
 
 " These words ' civil ' and ' criminal ' are used in a sense which 
 excludes from the idea conveyed by the latter and includes 
 within that conveyed by the former this matter of ' punishment 
 
 (w) 16 L. C. Jur. 169 ; 2 Cart. 291. 
 (x) 16 L. C. Jar. 188 ; 2 Cart. 297.
 
 THE B. N. A. ACT SEC. 92, S.-S. 14. 
 
 473 
 
 by fine, penalty, or imprisonment, for enforcing any law ' 
 which, under this 92nd section, a province alone can legally 
 enact. Jurisdiction is characterized simply as being civil or else 
 criminal. Crime of whatever kind or degree can be created, 
 its punishment assigned, and procedure relative to it laid down x 
 by parliament alone. No enactment of a local legislature can 
 give to any Act that quality, or subject it to that punishment, or 
 bring it within the purview of that procedure. But every local 
 legislature without let or hindrance from parliament and 
 therefore without need of aid from parliament can impose pun- 
 ishment by fine, penalty, or imprisonment, for enforcing certain 
 laws, which it alone can make. . . . 
 
 " Whatever infractions of law, whether as to matters of 
 Dominion or provincial (//) legislation, parliament sees fit to 
 designate as crimes, it and it alone can so declare, and as such 
 punish, and to that eridlregulate procedure. Whatever infrac- 
 tions of any provincial law coming within tlie~purview of This 
 92nd section, parliament may not see fit thus to deal with, the 
 interested province may punish by fine, penalty, or imprison- 
 ment ; but its so doing does not make the offence to be thus 
 punished a crime, nor the procedure laid down in order to its 
 punishment procedure in a criminal matter. On the contrary, 
 such whole matter must remain a civil matter, within what is here 
 the true meanin;/ of these respective terms. 
 
 In Page v. Griffith (z), Mr. Justice Sanborn expresses 
 the same opinion, intimating that, in his view, the power 
 to prescribe procedure in criminal matters refers to " the 
 general public criminal law comprised in the criminal 
 statutes of the Dominion and in the common law. This 
 view is confirmed by the Criminal Procedure Act, which 
 has no reference whatever to local penal laws, but to laws 
 in force throughout the Dominion," and in Cote v. Chaveau 
 (a), the law is laid down to the same effect by Mr. Justice 
 Casault. 
 
 ((/) See ante, p. 414. 
 
 (2) 17 L. C. Jur. 302 ; 2 Cart. 308. 
 
 (a) 7 Q. L, R. '258 ; 2 Cart. 311.
 
 474 THE B. N, A. ACT SEC. 92, S.-S. 14. 
 
 Having held valid the provincial game laws, the full 
 Court of Queen's Bench of Manitoba, in 1886 (b), adopted 
 the view which was then practically recognized in all the 
 other provinces, that procedure in connection with prose- 
 cutions under such laws is matter of exclusively provincial 
 jurisdiction. We say practically recognized, although the 
 question was only in 1890 authoritatively passed upon in 
 Ontario by the Court of Appeal for that province in Reg. v. 
 Wason (c), a case which will call for more extended notice 
 in the notes to sub-section 15, post. 
 
 In Reg. v. Bittle (d), the Divisional Court of the Common 
 Pleas Division, reviewed the decisions upon this question. 
 MacMahon, J., delivering the judgment of the court, uphold- 
 ing the validity of R. S. O. c. 61, s. 9, which provides 
 that, in proceedings under provincial Acts, the defendant 
 is neither a competent nor compellable witness, refers to 
 the diversity of nomenclature applied to provincial 1,-isvs 
 falling within this sub-section "provincial criminal laws" 
 (7 App. Cas. 840); "penal laws" (2 Cart. 291); "a dv# 
 matter within the true meaning of these respective terms" 
 (2 Cart. 297) adopts the language of Hodge v. Reg., that, 
 however styled, such laws are " not in conflict with No. 
 27 of section 91," and concludes: 
 
 " It is manifestly clear from the authorities that the pro- 
 cedure by the tribunals intrusted with adjudicating on the 
 offences so created cannot be prescribed by the Dominion parlia- 
 ment." 
 
 It was held in Manitoba, by Mr. Justice Killam (e ), that 
 the provisions of the Dominon Act (46 Vic. c. 17) (f), for 
 the reception in evidence of certified copies of documents 
 
 (/<) Reg. v. Robertson, 3 Man. L R. 613 ; see notes to s-s. 15, pout. 
 
 (c) 17 O. A. R. 221. 
 
 (</) 21 O. R. 605. 
 
 (e) McKilligan v. Machar, 3 Man. L. R. 418. 
 
 (/) See R. S. C. c. 139 ; see particularly section 10, which makes 
 applicable to proceedings under Dominion law, provincial la%vs of evi- 
 denco " subject to the provisions of this and other Acts of the parliament 
 of Canada."
 
 THE B. X. A. ACT SEC. 92, S.-S. U. 475 
 
 and records in the Dominion Lands Office, were vZtra vires, 
 so far as they might be taken to apply to suits merely for 
 the cancellation, as clouds upon title, of conveyances regis- 
 tered under the Lands Registration Act of Manitoba. As 
 the point is of some importance, and, so far as we are 
 aware, has not been touched upon in any other case, we 
 quote somewhat at length from his judgment : 
 
 "It does not appear to me that the Dominion parliament 
 could make any binding provision as to the nature of the evi- 
 dence to be received in a case like the present. The suit is one to 
 determine the right to, or property in, certain lands in this prov- 
 ince. The decision of the question may involve to a certain 
 extent the interpretation of statutes of the parliament of Canada, 
 and of orders of the Governor- General in Council ; but the suit 
 is not instituted under any authority of the Dominion parlia- 
 ment. Whether there had been, at a certain date, a grant from 
 the Crown, represented by the Governor-General, of lands held 
 for the benefit of the Dominion, must be determined by a consid- 
 eration of certain statutes and Orders in Council, as well as of 
 evidence of acts done under them. This court, in interpreting 
 those statutes and Orders in Council, has to apply the ordinary 
 rules of interpretation. In so far as the Dominion parliament lays 
 down rules to show the meaning of its own statutes they will be 
 used for the purpose, just as any statement in any document of the 
 meaning of certain phrases or words therein, will be used in the 
 interpretation of the document. This, however, in no way shows 
 that the Dominion parliament could lay down rules as to the 
 method of proving acts done under its statutes, or Orders of the 
 Governor-General in Council. Whether the registration of an 
 instrument appearing to show a claim adverse to that of the real 
 owner of land, forms a cloud upon the title of the owner which 
 should be removed by a decree of this court, is a matter upon 
 which the provincial legislature alone could legislate ; though in 
 such a suit, title may be deduced from the Crown, holding origin- 
 ally for the Dominion. The provincial legislature has the 
 authority to regulate the administration of justice in the province, 
 including procedure in civil matters in the courts ; though it 
 has in some cases been held that the Dominion parliament could 
 establish courts for the determination of matters arising under
 
 476 THE B. N. A. ACT SEC. 92, S.-S. 14. 
 
 statutes within its powers, or, perhaps, regulate to some extent, 
 procedure in the ordinary courts, in suits upon subjects within 
 its legislative authority." 
 
 Whittier v. Diblee (y), is simply a qucere whether the 
 Dominion Act, 32 & 33 Vic. c. 39, relating to costs 
 against justices is not ultra vires of the federal parliament 
 as relating to procedure in a civil matter. It is difficult to 
 suggest any principle in denial of the right of the Dominion 
 parliament, as part of general legislation in regard to a 
 criminal law, to pass an Act protecting magistrates in the 
 exercise of their criminal jurisdiction in the proper sense 
 of that term. 
 
 We have already noted some cases which deal with the 
 question of the position of imprisoned debtors, and may 
 here refer to some others dealing with the same topic. 
 Prior to Confederation, there were no county courts in 
 Nova Scotia. By an Act in force in the Province of Nova 
 Scotia at the Union, every debtor imprisoned under process 
 in any court, was entitled to apply for and, on certain con- 
 ditions, to obtain his discharge. Doubts having been 
 expressed as to the jurisdiction of the county courts estab- 
 lished after Confederation to entertain such application, an 
 Act of the provincial legislature was passed making the 
 above provisions applicable to persons imprisoned by county 
 courts ; and this Act was held (/<,) to be valid, as being a 
 matter relating to procedure in " civil " matters in provin- 
 cial courts. With this case should be compared the Queen 
 v. Chandler (i), an earlier decision of the New Brunswick 
 Supreme Court, which with other cases will be found noted 
 more fully in sub-section 21 of section 91. 
 
 The Supreme Court of New Brunswick, in Ex /><///<' 
 Ellis (j), upheld the validity of a provincial Act for the 
 
 (<n 2 Pug. 243; 2 Cart. 492. 
 
 (h) Johnston v. Poyntz, 2 Hiss. & Geld. 195 ; 2 Cart 416. 
 
 (/) 1 Hannay, 556; 2 Cart. 421. 
 
 (j) 1 Pug. and Burb. 593 ; 2 Cart. 527.
 
 THE B. X. A. ACT SEC. 92, S.-S. 14. 
 
 imprisonment of a person making default in payment of a 
 sum of money due on a judgment in certain cases as being 
 a matter relating to proceeding in " civil " matters and 
 not falling within the criminal law, or the law relating to 
 bankruptcy and insolvency. Allen, C.J., says : 
 
 " Now surely the enforcing the payment of a judgment is a 
 civil right, and the mode of enforcing it a part of the adminis- 
 tration of justice, and procedure in civil matters in the province; 
 all of which are expressly within the jurisdiction of the provin- 
 cial legislature. Having therefore the right to legislate on these 
 subjects, the 15th sub-section gives them power to enforce any 
 such laws by imposing imprisonment. It would seem, therefore, 
 that the powers conferred by this Act are directly within the 
 92nd section of the B. N. A. Act." 
 
 Mr. Justice Weldon dissented from the judgment of the 
 majority of the court, the legislation impugned being, in 
 his opinion, legislation relating to the criminal law. 
 
 Other cases in which reference has been made to this 
 sub-section will be found in the foot note (k). Those sub- 
 sections of section 91 which involve " procedure " as an 
 essential part of any legislation thereon are treated of 
 generally in chapter XI, ante, p. 236, and more particularly 
 in the notes to the sub-sections themselves. 
 
 (k) Wilson v. McGuire, 2 O. R. 118, ante, p. 232 ; Peak v. Shields, 
 8 S. C. R. 591, ante, p. 235 ; Reg. v. Bush, 15 O. R. 398, ante, p. 239; Re 
 N. Perth, 21 O. R. 538, ante, p. 240 ; Valin v. Langlois, 5 App. Gas. 115, 
 ante, p. 287 ; Re WethereU and Jones, 4 O. R. 713, ante, p. 346 ; Gushing 
 v. Dupuy, 5 App. Gas. 409, ante, p. 391 ; Crombie v. Jackson, 34 U. C. 
 Q. B. 575, ante, p. 393 ; Armstrong v. McCutchin, 2 Cart. 494, ante, 
 p. 397 ; Reg. v. Boardman, 30 U. C. Q. B. 553, ante, p. 410 ; Reg. v. 
 Lawrence, 43 U. C. Q. B. 164, ante, p. 411 ; Reg. v. Roddy, 41 U. C.Q. B. 
 291, ante, p. 415; Ward v. Reid, 3 Cart. 405, ante, p. 416; Atty.-Genl. 
 of Quebec v. Reed, 10 App. Cas. 141, ante, p. 431 ; Plummer Wagon Co. 
 v. Wilson, 3 Man. L. R. 68, ante, p. 433 ; Dulmage v. Douglas, 3 Man. 
 L. R. 562, ante, p. 434 ; Crawford v. Duffield, 5 Man. L. R. 121, ante, 
 p. 434 ; Reg. ex rel. McGuire v. Birkett, 21 O. R. 162, ante, p. 445 ; 
 McArthur v. N. & P. June. Ry. 17 O. A. R. 86, ante, p. 458; Reg. v. 
 Amer, 42 U. C. Q. B. 391, ante, p. 259 ; Lenoir v. Ritchie, 3 S. C. R. 575, 
 ante, p. 317 ; Re Squier, 46 U. C. Q. B. 474 ; see notes to section 96, 
 post.
 
 478 THE B. N. A. ACT SEC. 92, S.-S. 15. 
 
 15. The imposition of punishment by 
 fine, penalty, or imprisonment for enforc- 
 ing any law of the Province made in 
 relation to any matter coming within any 
 of the classes of subjects enumerated in 
 this section. 
 
 This sub-section was required in order to round up the 
 sphere of authority of the provinces and make the legis- 
 lative and executive departments, beyond doubt, co- 
 terminous. By it, moreover, that power to " sanction " its 
 enactments without which law is but a brutum fulmei), is 
 placed within the hands of provincial legislatures. Subject 
 to the anomaly perpetrated by section 96, the provinces 
 have control to the farthest bounds over the execution >t' 
 provincial laws. 
 
 In the notes to the last sub-section (14), the authorities 
 were collected which have now clearly established that the 
 matters covered by this sub-section are not " criminal " in 
 the sense of sub-section 27 of section 91, but " must remain 
 civil matters within what is here the true meaning of 
 these respective terms"; and the procedure necessary to 
 enforce punishment for breach of any provincial law is 
 procedure in a " civil " matter. 
 
 But, by whatever name called, the body of laws passed 
 under the authority of this sub-section must necessarily 
 present features closely resembling the ordinary criminal 
 law as it is to be found in the Dominion statute books, and 
 because this fact is the one most prominent in Reg. v. 
 Wason (I), we have left that case to be noted here, rather 
 than under sub-section 13, although, as will appear, the 
 decision of the Court of Appeal for Ontario was unani- 
 mously to the effect that the provincial legislation there 
 impugned was legislation as to "property and civil right>." 
 The statute in question was entitled " An Act to protect 
 
 (I) 17 O. A. R. 221.
 
 THE B. X. A. ACT SEC. 92, S.-S. 15. 479 
 
 against frauds in the supplying of milk to cheese or butter 
 manufactories," and by its first section it provided that 
 " no person shall knowingly and wilfully " supply diluted, 
 adulterated, or skimmed milked to a cheese or butter 
 manufactory without notifying the owner or manager of 
 such dilution, etc., under a penalty as provided in the Act. 
 The Divisional Court of the Queen's Bench Division de- 
 clared the Act ultra vires, on the ground, as put by 
 Armour, C.J., that " the primary object of the Act is to 
 create new offences and to punish them by fine, and, in de- 
 fault of payment, by imprisonment, and this is its true 
 nature and character." Mr. Justice Street dissented, and 
 his view was adopted by the Court of Appeal. He says in 
 his judgment : 
 
 " Is it an Act constituting a new crime for the purpose of 
 punishing that crime in the interest of public morality / Or is it an 
 Act for the regulation of the dealings and rights of cheesemakers 
 and their patrons, with punishments imposed for the protection 
 of the former ? If it is found to come under the former head, I 
 think it is bad as dealing with criminal law ; if under the latter, 
 I think it is good as an exercise of the rights conferred on the 
 province by the 92nd section of the B. N. A. Act. An examina- 
 tion of the Act satisfies me that the latter is its true object, in- 
 tention and character." 
 
 It may now, therefore, be taken, so far as the courts of 
 Ontario are concerned, that the criterion here suggested is to 
 be our guide in determining this question in any given 
 case. As will have been noticed, the difference in opinion 
 which existed in the Queen's Bench was as to the primary 
 object of the Act there impugned, the majority of the 
 court answering Mr. Justice Street's questions in the 
 reverse way. It would appear, therefore, that, as Mr. 
 Justice Osier puts it, " Thou shalt not " is not necessarily 
 " criminal " legislation within the meaning of the B. N. A. 
 Act, 
 
 " The legislature when really dealing with property and civil 
 rights must have power to say ' thou shalt ' or ' thou shalt not,*
 
 480 THE B. X. A. ACT SEC. 92, S.-S. 15. 
 
 and, as the breach of the legislative command is always, in one 
 sense, an offence, the line between what may, and what may not 
 be lawfully prescribed without touching upon ' criminal ' law is 
 sometimes difficult to ascertain, and may shift according to cir- 
 cumstances The criminal law, so far as regards 
 
 human legislation, in its ultimate object, even when dealing 
 with public order, safety, or morals, is chiefly concerned with 
 preventing and punishing the violation of personal rights and 
 rights respecting property, and hence, in a very wide sense, with 
 property and civil rights. But while in this sense, and in making 
 provisions applicable to the community at large, whether we 
 speak of all the confederated provinces or of one, the right to 
 legislate rests with parliament, I do not see how the right can be 
 denied to the provincial assemblies to legislate for the better pro- 
 tection of the rights of property by preventing fraud in relation 
 to contracts or dealings in a particular business or trade, or upon 
 other subjects coming within section 92, and to punish the infrac- 
 tion of the law in a suitable manner, so_lppg, at flll events, as 
 parliament has not occupied the precise field ; for I suppose it 
 will not be denied that the latter may draw into the domain of 
 criminal law an act which has hitherto been punishable only 
 under a provincial statute : Hodge v. The Queen, 9 App. Gas. at 
 p. 181. But if a particular species of fraud has not been con- 
 verged into a crime py uomimon U^isiattuii, lUn^K that. t,h<^ 
 local legislature ruusfbe at "liberty to deal withjt_ for the_better 
 protection of the class of persons nnnieiTiaTely jjjected by_iL" 
 
 We have quoted this passage at length, because it ex- 
 presses views in relation to the question of "concurrent" 
 powers which go far to support what we have ventured to 
 lay down in chapter X. (ante, p. 213, et seq.) upon this vexed 
 question. 
 
 Having held the Act i ntr<i r/'/vx, the Court of Appeal 
 decided without hesitation that the procedure laid down for 
 its enforcement was procedure in a civil matter within the 
 meaning of sub-section 14 of section 92. 
 
 To the like effect, the full Court of Queen's Bench,in Man- 
 itoba, in Queen v. Robertson (m), held that laws relating to 
 
 (m) 3 Man. L. E. 613. This case is noted more fully under the next 
 s-s. 16.
 
 THE B, N. A. ACT SEC. 92, S.-S. 15. 481 
 
 the killing and possession of game at certain seasons of the 
 year, are laws relating to property and civil rights. Re- 
 ference is made to the works of Blackstone and other old 
 writers as showing that the .taking of animals ferce naturce 
 is an ordinary right which, in the absence of legislation, 
 any citizen possesses ; and therefore that laws curtailing- 
 such rights are laws relating to civil rights in the province, 
 within the meaning of this sub-section. 
 
 The query in Regina v. Boardman (n), as to the power 
 of a provincial assembly to pass a general law in reference 
 to the punishment to be meted out for violation of pro- 
 vincial laws, is now answered in favor of the power so 
 far at all events as the authority of the Court of Appeal 
 for Ontario extends by the decision of that tribunal in 
 Attorney-General (Canada) v. Attorney-General (Ont.) (o).. 
 It would seem also to be covered by the principle of Hodge 
 v. The Queen (p\ applied a fortiori. 
 
 However, as late as July, 1890, Mr. Justice Wurtele, of 
 the Quebec Superior Court, held, in Tarte v. Beique (q), 
 that a provincial legislature, for enforcing a law made by 
 it, must enact a special fine or imprisonment, and cannot 
 confer the power on any person or body of persons to 
 determine what penalty shall be incurred by a violation of 
 such law. But this seems to be qualified by a remark* 
 made later, that the legislature has no power to decree that 
 the punishment of an offender shall be at the discretion of 
 the court before which he may be tried. No reference is 
 made in the judgment to the doctrine enunciated in Queen 
 v. Burah, and the other cases, particularly Hodge v. The 
 
 (n) 30 U. C. Q. B. 553 ; see ante, p. 410. 
 
 (o) 19 O. A. E.31. 
 
 (p) 9 App. Gas. 117. 
 
 (q) 6 Mont. L. R. 289. It was also held in this case that a commis- 
 sion of inquiry issued by a Lieutenant-Governor in Council, under a 
 provincial statute, is not a judicial tribunal, and does not possess any in- 
 herent power to commit for contempt. 
 CAN. CON. 31
 
 482 THE B. N. A. ACT SEC. 92, S.-S. 15. 
 
 Queen (r), which support the doctrine of "plenary powers" ; 
 and it is difficult in view of these authorities to acquiesce 
 in the correctness of this decision. 
 
 In Bennett v. The Pharmaceutical Association (s), it was 
 held by Chief Justice Dorion, that the provisions of the 
 Quebec Pharmacy Act, 1875, appropriating fines imposed 
 for breaches of that Act to the respondent corporation, was 
 intra vires : 
 
 11 It can direct that a portion or the whole of it shall be for 
 the benefit of the prosecutor, or of a municipal or other corpora- 
 tion, just as it distributes the provincial revenue, in any manner 
 it may choose to direct. It had the same power to enact that 
 the fines levied under the Act should be for the benefit of the 
 society respondent as it would have, after receiving the fines as 
 part of the provincial revenue, to order that the amount should 
 be paid back to the society for the objects of its incorporation." 
 
 a decision which is in agreement with the later decision 
 of the Court of Appeal for Ontario in the case above noted 
 (t), in which general legislation authorizing the Lieutenant- 
 Governor in Council to remit fines, etc., if thought proper, 
 was upheld. 
 
 In the province of Quebec conflicting decisions were 
 given in certain cases which came before the Courts of that 
 province in 1871-3. Mr. Justice Drummond held (u) that 
 the local legislature could not authorize punishment by both 
 fine and imprisonment, and in this view he was followed 
 by Mr. Justice Torrance (v). In Paige v. Griffith (w), Mr. 
 Justice Sanborn declined to follow the earlier cases, and 
 construed the word "or" as being cumulative. In Blouin v. 
 Quebec (x), Chief Justice Meredith intimated his agree- 
 
 (r) See ante, p. 177, et seq. 
 
 (s) I Dor. 336 ; 2 Cart. 250. 
 
 (t) Atty.-Gen. (Can.) v. Atty.-Gen. (Ont.), 19 O. A. R. 31. 
 
 (u) Ex parte Papin, 15 L. C. Jur. 331 ; 2 Cart. 320. 
 
 (v) Ex parte Papin, 16 L. C. Jur. 319 ; 2 Cart. 322. 
 
 (w) 18 L. C. Jur. 119 ; 2 Cart. 324. 
 
 (x) 7 Q. L. R. 18 ; 2 Cart. 368.
 
 THE B. X. A. ACT SEC. 92, S.-S. 16. 483 
 
 Tnent with the view which had also been expressed in 
 earlier cases in that province that a local legislature has no 
 power to impose hard labor as a term of imprisonment 
 under this sub-section 15 ; but the contrary has now been 
 distinctly held by the Judicial Committee of the Privy 
 Council in Hodge v. The Queen, which also supports the 
 cumulative reading of the word "or" (xx). 
 
 16. Generally all matters of a merely 
 local or private nature in the Province. 
 
 This sub-section must be read in connection with per- 
 haps we should say, subject to the concluding paragraph 
 of section 91 : 
 
 " And any matter coming within any of the classes of sub- 
 jects enumerated in this section shall not be deemed to come 
 within the class of matters of a local or private nature comprised 
 in the enumeration of the classes of subjects by this Act assigned 
 ^exclusively to the legislatures of the provinces." 
 
 As has been pointed out, the grammatical connection of 
 this concluding paragraph of section 91 with this sub-section 
 16 is now clearly established by authority. In note (xi) to 
 the opening paragraph of section 91 we referred to the con- 
 cluding paragraph of that section as weakening somewhat 
 the argument that the legislative power conferred on the 
 Dominion parliament should be limited to the passing of 
 general laws, to operate throughout Canada or for the 
 general benefit of Canada as a whole ; because it would 
 seem to be implied that matters would come before the 
 Dominion parliament for legislative action which upon 
 
 (xx) For other cases in which this sub-section has received attention, 
 see : 
 
 Reg. v. Lawrence, 43 U. C. Q. B. 164, ante, p. 411 ; 
 Reg. v. Shaw, 7 Man. L. R. 518, ante, p. 412 ; 
 Reg. v. Roddy, 41 U. C. Q. B. 291, ante, p. 415 ; 
 Reg. v. Lake, 43 U. C. Q. B. 515, ante, p. 415 ; 
 Pope v. Griffith, 2 Cart. 291, ante, p. 472 ; 
 Ex parte Duncan, 2 Cart. 297, ante, p. 472 ; 
 -Page v. Griffith, 2 Cart. 308, ante, p. 473.
 
 484 THE B. X. A. ACT SEC. 92, S.-S. 16. 
 
 their face, so to speak, would appear to be matters of a- 
 merely local or private concern in one province. It may be 
 aimied, however, that what is meant by the concludino- 
 
 O * / o 
 
 paragraph of section 91 is simply this : that if a Dominion 
 law, ex hypothesi of a general character, should affect 
 local and private interests in one province in a particular 
 manner, or to a degree peculiar to such province, such law 
 must not on that account be deemed to be a law relating 1 to a 
 
 O 
 
 matter of a merely local or private nature in such province, 
 and therefore invalid. For example, a general law in rela- 
 tion to sea-coast fisheries might peculiarly or even exclu- 
 sively affect one province and so as to the establishment 
 of lighthouses, inter-provincial or international ferries, and 
 other matters which might be named. We have already 
 discussed Various aspects of this question (y). It is 
 involved in the larger question as to " concurrent " powers 
 (so-called), and as to the difference in the range of matters 
 open to one legislature in the absence or presence of legis- 
 lation enacted by the other. If the powers of the parlia- 
 ment of Canada are, in every instance, powers of genera] 
 legislation only, it would appear that all laws for the peace. 
 order, and good government of a province as a self-govern- 
 ing unit, passed in relation to matters not covered by 
 general legislation by the parliament of Canada upon those 
 matters of common concern committed to it, would be laws 
 of a " merely local or private nature in the province." In 
 this view no difficulty would arise from the limitation upon 
 the scope of the term "municipal institutions"; for as a 
 province could itself pass, so it could delegate to a muni- 
 cipal body power to pass, any laws in relation to local self- 
 government not overborne by general laws passed by the 
 parliament of Canada in the interests of the Dominion as 
 a whole. In this connection we may refer to what was 
 laid down by Lord Selbome in L' Union St. Jacques v. 
 Belisle (0): 
 
 (y) See ante, p. 213, et seq.; and note (xi) to sec. 91, ante, p. 350. 
 (z) L. R. 6 P. C. 31.
 
 THE B. X. A. ACT SEC. 92, S.-S. 16. 485 
 
 "The onus 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 
 section." 
 
 a passage which is immediately followed by that other 
 which we have already quoted, to the effect that, in the 
 various sub-sections of section 91, there is no indication in 
 any instance of anything being contemplated beyond what 
 may be properly described as general legislation. 
 
 The main difficulty about the whole matter is that the 
 " residuum " of subject matters is assigned to the parlia- 
 ment of Canada. But here again it may be argued that 
 the legislation must be general, for the peace, order and 
 good government of Canada as a federal Dominion, and 
 that, in truth, the ' residuum," at any given moment, must 
 be with the provinces, the matters comprised in such " resi- 
 duum " being deemed matters of a local or private nature 
 in each province as would be evidenced by the absence of 
 general federal legislation thereon. 
 
 The whole subject is one upon which much may be 
 said, but, confining our attention now to this sub-section 
 16, we proceed to indicate what particular provincial legis- 
 lative Acts have been held to fall within it. 
 
 In L'Union St. Jacques v. Belisle, above referred to, an 
 Act of the Quebec legislature, passed m aid of a society 
 which was in financial straits, forcing commutation upon 
 certain annuitants, was held to be an Act relating to a 
 matter of a merely local or private concern in the pro- 
 vince. It was contended held in the judgment appealed 
 from that the legislation was insolvency legislation, and 
 the Judicial Committee intimated that if a Dominion Act 
 had been in existence making such acts on the part of the 
 society as were authorized by the statute in question, acts 
 of insolvency rendering all societies who committed them 
 liable to be wound up under insolvency proceedings, it 
 might be that the statute in question would have been
 
 486 THE B. N. A, ACT SEC. 92, S.-S. 16. 
 
 ultra vires; but that, as no such general Dominion legis- 
 lation was in existence, the Quebec statute was intm 
 as relating to a matter which, as the law stood, must be 
 taken to be a matter of local concern in Quebec. 
 
 In Dow v. Black (a), an Act of the New Brunswick 
 legislature authorizing a levy to pay a " bonus " to a rail- 
 way extending beyond the boundaries of the province was 
 upheld under this sub-section. 
 
 In Hodge v. The Queen (6), the regulation of taverns, 
 etc., was held to fall within this sub-section, although in 
 the earlier case of Russell v. The Queen (<?), the " local 
 option " character of the Canada Temperance Act did not,, 
 in the opinion of the Committee, make that Act other than 
 one for the peace, order and good government of Canada, 
 falling within the residuary clause of section 91 : 
 
 " The Act as soon as it was passed became a law for the whole 
 Dominion, and the enactment 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. 
 The manner of bringing the prohibitions and penalties into force, 
 which parliament has thought fit to adopt, does not alter its 
 general and uniform character. Parliament deals with the sub- 
 ject as one of general concern to the Dominion, upon whicli 
 uniformity of legislation is desirable, and the parliament alone 
 can so deal with it.'! 
 
 In Hodge v. The Queen the regulations there supported 
 were said not to conflict with the Canada Temperance Act, 
 "which was not locally adopted." In a number of the 
 cases which dealt with the question of the power of a pro- 
 vincial legislature to deal with certain phases of the liquor 
 traffic, dicta are to be found to the effect that the exercise 
 of regulative power falls within this sub-section as a. 
 
 (a) L. E. 6 P. C. 272. 
 
 (b) 9 App. Gas. 117. 
 
 (c) 7 App. Cas. 829.
 
 THE B. X. A. ACT SEC. 92, S.-S. 16. 487 
 
 matter of "police" (d), for the repression of disorderly and 
 riotous conduct such as would injuriously affect local 
 morals and local good government ; but there can be no 
 doubt that upon the adoption of the Canada Temperance 
 Act all such provincial powers in relation to that traffic 
 would be overborne. 
 
 And so as to "nuisances," it was held in Ex parte 
 Pillow (e), that the power of a provincial legislature to 
 pass, or to authorize a municipal body to pass, laws for 
 their abatement as being injurious to the public health of 
 the community, was not in conflict with the power of the 
 parliament of Canada to pass, as part of the criminal law 
 of the Dominion, a general law as to nuisances. 
 
 In Bennett v. The Pharmaceutical Association (/), it 
 was held by Chief Justice Dorion : 
 
 " The determining of the age or other qualifications, required 
 by those residing in the province of Quebec, to manage their own 
 business, or to exercise certain professions or certain branches of 
 business attended with danger or risk for the public, are local 
 subjects in the nature of internal police regulations ; and in pass- 
 ing laws upon those subjects, even if those laws incidentally 
 affect trade and commerce, it must be held that this incidental 
 power is included in the right to deal with the subjects placed 
 especially under their control, the exercise of which can not be 
 considered to be unconstitutional. The Pharmacy Act of 1875, 
 in so far as this case is concerned, does not regulate trade and 
 commerce. It merely determined the status of persons exercising 
 the business of chemist and druggist. This is a civil right 
 coming clearly within the powers of the local legislature." 
 
 (d) See the cases collected in the notes to s. 91, s-s. 2, ante, p. 359, 
 et seq. In Slavin v. Orillia, the late Sir Win. Richards collects a num- 
 ber of American authorities as to "police " powers. 
 
 (e) 27 L. C. Jur. 216 ; 3 Cart. 357. See also Reg. v. Wason, noted: 
 under s-s. 15 ; it would support laws as to " nuisances " as being for the 
 protection of property and civil rights. 
 
 (/) 1 Dor. 336 ; 2 Cart. 250.
 
 488 THE B. N. A. ACT SEC. 92, S.-S. 16. 
 
 It has been held (g), by the full Court of Queen's Bench 
 of Manitoba that provincial Acts, regulating the killing and 
 possession of game at certain seasons of the year, are 
 intra vires. Mr. Justice Killam, in delivering the judg- 
 ment of the court, refers to the action of the Dominion 
 parliament in not assuming to pass any such laws, and to 
 their action in placing among the subjects of legislation by 
 the Council of the North- West Territories the subject 
 *' Game and wild animals, and the protection thereof " ; 
 venturing the opinion that the Dominion parliament would 
 not be likely to give to the North- West Council powers of 
 legislation more extended than those possessed by pro- 
 vincial legislatures. Apart from this consideration, the 
 statutes were held to fall within both sub-sections 13 and 
 16 of section 92. The object of such Acts is said to be 
 " essentially local." " It is to secure the increase, or to pre- 
 vent at any rate as far as possible the decrease of the 
 supply of game within the province." Hodge v. The 
 Queen is spoken of as showing that a law is considered 
 to be local within the meaning of this sub-section, 
 \ although having operation throughout the whole of the 
 '*/ province, and although the subject with which it deals 
 may be an important subject of legislation in other pro- 
 vinces also ; and further, that the sub-section cannot be 
 confined in its operation to local and private, as dis- 
 tinguished from public Acts. The judgment discusses these 
 various matters in a most instructive and interesting way. 
 The difficulty we have to contend with in all these cases is 
 that formerly noted in reference to Hodge v. The Queen, 
 namely, that in scarcely any of them is the legislation up- 
 held under this sub-section alone. This is, of course, to be 
 expected, but at the same time it increases the difficulty 
 
 (;}) Reg. v. Robertson, 3 Man. L. R. 613. "See also, ante, p. 414 and 
 p. 480.
 
 THE B. X. A. ACT SEC. 93. 489 
 
 one finds in attempting to assign a limit to the scope of 
 the sub-section (gg). 
 
 Education. 
 93. In and for each Province the JgJSS? 1 
 
 T i i i 1 11 education. 
 
 Legislature may exclusively make laws 
 in relation to Education, subject and 
 according to the following provisions : 
 
 (1) Nothing in any such law shall 
 
 prejudicially affect any right 
 or privilege with respect to 
 denominational schools which 
 any class of persons have by 
 law in the Province at the 
 Union : 
 
 (2) All the powers, privileges, and 
 
 duties at the Union by law 
 conferred and imposed in Upper 
 Canada on the separate schools 
 and school trustees of the 
 Queen's Roman Catholic sub- 
 jects shall be and the same are 
 hereby extended to the dis- 
 
 (gg) For other cases, see Cleveland v. Melbourne, 4 Legal News, 2 Cart. 
 241, in which an Act of the Quebec Legislature authorizing the Lieut- 
 Oovernor in Council to revoke the right to exact tolls on a toll-bridge 
 (for default in making repairs) and to transfer the bridge to others, was 
 upheld. Note this case in connection with Atty.-Gen. of Can. v. Atty.- 
 Gen. of Ont., 19 O. A. R. 31. See also : 
 
 Reg. v. Mohr, 2 Cart. 257, ante, p. 351; 
 
 Quirt v. Reg., 19 S. C. R. 510, ante, p. 354 ; 
 
 lit Windsor and Annapolis Ry. 3 Cart. 387, ante. p. 400 ; 
 
 And see also the cases under section 92, sub- sections 8, 10 and 11, 
 ante.
 
 490 THE B. N. A. ACT. SEC. 93. 
 
 sentient schools of the Queen's 
 Protestant and Eoman Catho- 
 lic subjects in Quebec: 
 
 (3) Where in any Province a sys- 
 
 tem of separate or dissentient 
 schools exists by law at the 
 Union, or is thereafter estab- 
 lished by the Legislature of 
 the Province, an appeal shall 
 lie to the Governor-General in 
 Council from any Act or de- 
 cision of any Provincial author- 
 ity affecting any right or privi- 
 lege of the Protestant or Roman 
 Catholic minority of the Queen's 
 subjects in relation to Edu- 
 cation. 
 
 (4) In case any such Provincial law 
 
 as from time to time seems to 
 the Governor-General in Coun- 
 cil requisite for the due execu- 
 tion of the provisions of this 
 section is not made, or in case 
 any decision of the Governor- 
 General in Council on any ap- 
 peal under this section is not 
 duly executed by the proper 
 Provincial authority in that 
 behalf, then and in every snk- 
 case, and as far only as the 
 circumstances of each case re- 
 quire, the Parliament of Canada
 
 THE B. X. A. ACT SEC. 93. 491 
 
 may make remedial laws, for 
 the due execution of the pro- 
 visions of this section and of 
 any decision of the Governor- 
 General in Council under this 
 section. 
 
 In reference to the position of what are known as 
 " separate " or denominational schools, it will be advisable 
 to treat the entire subject in one place, for although the 
 position of the provinces and territories acquired since 
 Confederation is somewhat different from that of the pro- 
 vinces, original parties to the Union, there is so much 
 ground common to all the provinces in connection with 
 this question that it might lead to undue repetition were 
 we to divide the discussion. 
 
 This section 92 with its sub-sections, was somewhat 
 modified in the case of Manitoba, but, as we shall have 
 occasion to show, upon the admission of Prince Edward 
 Island and British Columbia, this section as it stands was, 
 with other parts of the B. X. A. Act, made applicable to 
 those provinces as if they had been originally parties to- 
 the Union. The North- West Territories are in a somewhat 
 peculiar position with regard to this question, owing to- 
 the legislative supremacy exercised over these territories 
 by the Dominion parliament. Although, therefore, we 
 deem it advisable to treat the whole subject in this place,, 
 it will be equally advisable to consider the matter by 
 provinces. 
 
 Ontario and Quebec. 
 
 At the date of Confederation that part of the then 
 province of Canada known as Upper Canada had a Roman 
 Catholic separate school system established by law 26 
 Vic. c. 5: ''An Act to restore to Roman Catholics in Upper
 
 492 THE B. X. A. ACT SEC. 93. 
 
 Canada certain rights in respect to separate schools." 
 With the political agitation which resulted in the passage 
 of this Act, and the subsequent agitations for its repeal, 
 we have of course nothing to do here. There was also 
 upon the statute book of (old) Canada an Act conf erring- 
 rights and privileges upon Protestants and " coloured 
 people " in regard to the establishment of separate schools. 
 The separate schools of the " coloured people," not being 
 denominational, are not protected by the B. N. A. Act. Im- 
 mediately prior to Confederation it was in contemplation 
 to pass an Act placing the denominational minorities of 
 what is now the province of Quebec in the same position 
 as the Roman Catholic minority of the Upper Province, but 
 no Canadian legislation took place upon the subject, the 
 end aimed at being secured by sub-section 2 of this section 
 93, which sub-section, as it is applicable to only the one 
 province of Quebec, we need not further consider, beyond 
 noting that it puts the two provinces of Quebec and 
 Ontario upon so much the same footing that we are 
 justified in dealing with these two provinces together. 
 
 Prior to Confederation the position of the Roman 
 Catholic minority in Upper Canada, under the Roman 
 Catholic Separate School Act, had been considered in the 
 courts of that part of the province, and the view taken 
 by those courts is summed up in the following extract 
 from the judgment of Hagarty, C.J., in Free v. 31c- 
 Hugh (h) : 
 
 " As Burns, J., remarked in 7u> Ridsdale & Brush, 22 U. C. 
 Q. B. 124 : ' The legislature intended the provisions creating the 
 common school system, and for working and carrying that out, 
 were to be the rule, and that all the provisions for the separate 
 schools were only exceptions to the rule, and carved out of it for 
 the convenience of such separatists as availed themselves of the 
 provisions in their favor' ; and my brother Gwynne, commenting 
 
 (ft) 24 U. C. C. P. at p. 20.
 
 THE B. X. A. ACT SEC. 93. 493 
 
 on these words in Harding v. Mayville, says, at p. 511 of 21 
 CJ. C. C. P., that ' it lies on the plaintiff claiming exemption as 
 a separatist to aver and prove all those exceptional matters, 
 taking him out of the general rule.' " 
 
 These exceptional and special rights privileges enjoyed 
 by religious minorities in the different districts of the pro- 
 vinces over and above those rights enjoyed at common law 
 or under statutory enactment by the inhabitants of the 
 province at large are the rights and privileges protected 
 by this 93rd section, and we may conclude our remarks as 
 to the provinces of Ontario and Quebec, so far as the posi- 
 tion of those provinces requires separate treatment, by 
 saying that, having in view what is laid down by the 
 Judicial Committee of the Privy Council in Winnipeg \\ 
 Barrett (i), the rights and privileges referred to, and pro- 
 tected by the various sub-sections of section 93, may be 
 shortly stated as follows: 
 
 1. The right to establish denominational schools; 
 
 2. The right to invoke state aid in the collection of taxes 
 necessary for the support of such schools from the sup- 
 porters thereof ; 
 
 3. The privilege of exemption from taxation for the 
 support of the public schools of the province ; 
 
 . 4. The privilege of having taught in such separate 
 schools the religious tenets of their denomination; 
 
 to which we should perhaps add the right or privilege which 
 any member of any denomination has to choose, as between 
 the separate schools of his denomination and the public 
 schools of the province, which he will support. Any legisla- 
 tion of a compulsory character would be unconstitutional as 
 prejudicially affecting the right or privilege which such per- 
 sons had by law at the date of Confederation. 
 
 (i) See post.
 
 494 THE B. N. A. ACT SEC. 93. 
 
 In Board of School Trustees v. Grainger (j), Vice- 
 chancellor Blake had to consider the general effect of this 
 section 93 and its various sub-sections. Shortly stated, his 
 decision was that provincial legislatures have full power of 
 legislation in relation to education and educational systems 
 in the province, including the separate school system there- 
 in, so long as such legislation does not offend against the 
 provisions of sub-section 1, that is to say, does not prejudi- 
 cially affect any right or privilege thereby protected ; and 
 he refers to sub-sections 3 and 4 as indicative of the expect- 
 ations of the framers of the B. N. A. Act that there would 
 be legislation by provincial legislatures in relation to 
 denominational schools. The validity of such legislation is, 
 in a sense, recognized by the deliverance by the Divisional 
 Court of the Chancery Division of an opinion (k) on certain 
 questions submitted to that tribunal as to the effect to be 
 given to certain clauses of the Assessment Act of Ontario 
 
 O 
 
 working amendment of the separate school law as it 
 existed at the Union by making more elaborate pro- 
 vision for classifying ratepayers into two classes : supporters 
 of public, and supporters of separate, schools ; although, we 
 should note, no discussion seems to have taken place, and 
 no expression of opinion is to be found in the judgment, 
 upon this constitutional question. The matter however 
 appears so clearly upon the construction of the statute that, 
 so far as we are aware, no doubt has ever been expressed as 
 to the correctness of the views enunciated by Vice-Chan- 
 cellor Blake. As put by him in the case we have cited: 
 
 "It would be a most unfortunate result of this enactment, if it 
 were found that it precluded the remedying defects in, or im- 
 proving the machinery for, working out the separate school 
 system. ... It is therefore clear that the provincial legis- 
 
 (j) 25 Grant, 570. 
 
 (fc) In re R. C. Sep. Schools, 18 O. R. 606. See also Trustees of R. C. 
 Sep. School v. Arthur, 21 O. R. 60.
 
 THE B. X. A. ACT SEC. 93. 495 
 
 lature has some power to legislate as to denominational schools ; 
 and it is scarcely possible to conceive a case in which it could, 
 and should, more properly interfere than where, as here, it is 
 asked to remove an ambiguity in the working of the Act, and to 
 give to separate schools the same class of machinery for carrying 
 on its work, as is given to the public schools a machinery 
 which, after much thought and many years experience, is found 
 to be the best and simplest we have yet had." 
 
 It has been contended that owing to the appeal provided 
 for by sub-section 3, and the power given to the parliament 
 of Canada to pass remedial laws in certain cases, under 
 sub-section 4, the question of the validity of separate school 
 legislation has been entirely withdrawn from the courts^ 
 but this has been decisively negatived by the judgment of 
 the Judicial Committee of the Privy Council in Winnipeg 
 v. Barrett (1), which we shall have occasion to note more 
 at length when we come to deal with the position of 
 Manitoba in reference to this matter of separate schools. 
 In reference to this question of appeal, and its effect upon 
 the jurisdiction of the ordinary tribunals, Lord Macnagh- 
 ten in delivering the judgment of the Committee, says: 
 
 " At the commencement of the argument a doubt was sug- 
 gested as to the competency of the present appeal in consequence 
 of the so-called appeal to the Governor-General in Council pro- 
 vided by the Act. But their Lordships are satisfied that the 
 provisions of sub-sections 2 and 3 (m) do not operate to with- 
 draw such a question as that involved in the present case from 
 the jurisdiction of the ordinary tribunals of the country." 
 
 It devolves upon the courts, therefore, in any given case, 
 to decide whether or not any provincial legislation regarding 
 denominational schools does, or does not, "prejudicially 
 affect any right or privilege with respect to denominational 
 schools which any class of persons have by law in the pro- 
 vinces at the Union." 
 
 (I) Q Times L. E. 745. 
 
 (m) Sections 3 and 4 of the B. N. A. Act.
 
 496 THE B. N. A. ACT SEC. 93. 
 
 Nova Scotia, New Brunswick, Prince Edward Island, 
 and British Columbia. 
 
 The affirmance by the Privy Council (n) of the judg- 
 ment of the Supreme Court of New Brunswick, in Ex parte 
 Renand (o), places the provinces above named in the same 
 position upon this question. All are governed by the pro- 
 visions of section 93 and its sub-sections, and only in the 
 event of the future establishment of a system of separate 
 or dissentient schools by any one of these provinces, can 
 their full autonomy in relation to educational matters be 
 interfered with by the parliament of Canada. In none 
 of these provinces other than New Brunswick could the 
 claim to a " right or privilege " existing at the time of 
 the Union be as strongly supported as it was in the last- 
 named province ; and the position of affairs there is so- 
 clearly disclosed and the legal question so exhaustively 
 treated by the judgment of Chief Justice Ritchie now Sir 
 Wm. Ritchie, Chief Justice of the Supreme Court of Canada 
 that we venture to quote somewhat fully from it : 
 
 "It is contended that the rights and privileges of the Roman 
 ^Catholic inhabitants of this province, as a class of persons, have 
 been prejudicially affected by the Common Schools Act, 1871, 
 contrary to the provisions of sub-section 1 of section 93 of the 
 B. N. A. Act. We have now to determine whether any class of 
 persons had, by law in this province, any right or privilege 
 with respect to denominational schools at the Union, which are 
 prejudicially affected by the Common Schools Act of 1871. This 
 renders it necessary that we should, with accuracy and precision, 
 ascertain exactly what the state of the law was with reference to 
 denominational schools, and the rights of classes of persons in 
 respect thereto, at the Union. At that time, what may fairly 
 and legitimately be called the common school system of the 
 province was carried on under an Act passed in 21 Vic. (c. 9) 
 
 (n) See post. 
 
 (o) 1 Pug. 273; 2 Cart. 445. For the political turmoil raised by this, 
 decision, see Dom. Sess. Pap., 1877, No. 89.
 
 THE B. X. A. ACT SEC. 93. 497 
 
 entitled " An Act relating to Parish Schools." There were, no 
 doubt, at the same time in existence, in addition to the schools 
 established under the Parish School Act, schools of an unques- 
 tionably denominational character, belonging to and under the 
 immediate government and control of particular denominations, 
 and in which there can be no doubt, or it may reasonably be 
 inferred, the peculiar doctrines and tenets of the denominations 
 to which they respectively belonged were exclusively taught, and 
 therefore had, what may rightly be esteemed, all the characteris- 
 tics of denominational schools, pure and simple It 
 
 is obvious that there were in existence at the time of the Union, 
 and have been ever since in this province, apart from schools 
 established under the Parish School Act, denominational schools, 
 recognized by the legislature, and aided from the public revenues. 
 " But as it is not contended that the Common Schools Act 
 prejudicially affects any right or privilege with respect to tliese 
 schools which any class of persons had by law at the Union, it 
 will be necessary to examine minutely and critically the Parish 
 School Act of 1858, under which, it is contended, 'rights and 
 privileges ' existed, which, it is alleged, have been so affected. . . 
 The Parish School Act, 1858, clearly contemplated the estab- 
 lishment throughout the province of public common schools for 
 the benefit of the inhabitants of the province generally ; and it 
 cannot, we think, be disputed that the governing bodies under 
 that Act were not, in any one respect or particular, ' denomina- 
 tional.' . . . The schools established under this Act were, 
 then, public parish or district schools, not belonging to or under 
 the control of any particular denomination ; neither had any class 
 of persons, nor any one denomination whether Protestant or 
 Catholic any rights or privileges in the government or control 
 of the schools, that did not belong to every other class or denom- 
 ination, in fact, to every other inhabitant of the parish or dis- 
 trict; neither had any one class of persons or denomination, nor 
 any individual, any right or privilege to have any peculiar 
 religious doctrines or tenets exclusively taught or taught at all, 
 in any such school. What is there, then, in this Act to make a 
 school established under it a denominational school, or to give it 
 a denominational character ? ... It has been said that 
 
 CAN. CON. 32
 
 498 THE B. X. A. ACT SEC. 93. 
 
 under the Parish School Act, schools were in fact established in 
 certain localities where all, or a large majority, of the ratepayers 
 happened to belong to one particular persuasion in which the 
 catechisms of particular churches were taught, prayers peculiar 
 to a particular religious body were used, and books inculcating 
 the doctrines, views, and practices of a particular denomination 
 were used as class-books ; and that these schools were therefore 
 denominational, and consequently the class of persons belonging 
 to any such denomination had a legal right or privilege with 
 respect to denominational schools. Assuming what has been 
 alleged to have been the case though on this point we have no 
 information before us of which we can take judicial notice surely 
 it is begging the whole question. How can the mere fact that, 
 in exceptional cases, certain schools under the Parish School 
 Act, drawing provincial aid, may have been made, for the time 
 being, with or without the knowledge or sanction of the Board of 
 Education, denominational, by reason of the teacher instructing 
 the children exclusively in doctrines of a particular denomination, 
 or using the prayers or books, or daily teaching the catechism 
 peculiar to such denomination, confer any legal right or privilege 
 on any class of persons with respect to denominational schools, 
 or give the denomination whose tenets may have been so taught 
 in any such schools, rights and privileges other than those pos- 
 sessed by all and every the humblest inhabitant of the parish in 
 which such schools existed free and independent of all denomina- 
 tional connection ? It is not by what the Board of Education, 
 Superintendent, Inspectors, or Trustees may have done, or 
 allowed to be done under the Act, nor is it from the mode in 
 which the principles of Chistianity may have been actually 
 taught in one or a hundred schools which may have drawn pub- 
 lic money under the Parish School Act, that the question in a 
 legal view must be determined ; we must look to the law as it 
 was at the time of the Union, and by that, and that alone, be 
 governed. Where, then, do we find any legal exclusive right or 
 privilege conferred on any denomination to any school estab- 
 lished, or that might be established under that Act ; or any right 
 or privilege conferred on any class of persons to deal with such a 
 school as belonging to such persons as a class or denomination ; 
 or as being under their control as such ; or that, as a class, they
 
 THE B. N. A. ACT SEC. 93. 499 
 
 Lad any right to have taught therein the peculiar doctrines of 
 their denomination ? . . . If, then, the establishment of 
 denominational schools, or the teaching of denominational doc- 
 trines, was not recognized or provided for by the Act, and the 
 Roman Catholics had therefore no legal rights, as a class, to 
 claim any control over, or to insist that the doctrines of their 
 church should be taught in all or any schools under the Parish 
 School Act, how can it be said (though, as a matter of fact, such 
 doctrines may have been taught in numbers of such schools) that 
 as a class of persons they have been prejudicially affected in any 
 legal right or privilege with 'respect to ' denominational schools,' 
 construing those words in their ordinary meaning because under 
 the Common Schools Act, 1871, it is provided that the schools 
 :shall be non-sectarian. . . . But it is contended that the 
 section declaring ' that all schools conducted under the provisions 
 of this Act shall be non- sectarian,' prejudicially affects the 
 rights and privileges which the Roman Catholics, as a class, had 
 in the parish schools at the time of the Union. It cannot be 
 denied that to the provincial legislatures is confided the exclusive 
 right of making laws in relation to education ; and that they, 
 and they only, have the right to establish a general system of 
 education applicable to the whole province and all classes and 
 denominations, provided always they have due regard to the 
 rights and privileges protected by section 93 of the B. N. A. Act. 
 Now, what, in this case, is the right or privilege claimed to have 
 been prejudicially affected ? Is it a legal right or privilege that 
 could have been put forward and enforced by the Eoman Catho- 
 lics, as a class, under all circumstances, and in every parish or 
 common school ; or is it a legal right confined to the Roman 
 Catholics as a body ; or does it belong equally to all and every 
 of the other denominations of Christians in this province, and 
 capable by them of enforcement ; or, on the contrary, was it not 
 the mere possible chance of having religious denominational 
 teaching in certain schools, depending entirely upon accidental 
 circumstances ; as, on what might happen to be the religious 
 views of the majority in a parish, and then on the accidental 
 result of the election of trustees and school committees, and on 
 the views of the parties so elected as to religious denominational 
 .teaching, and their willingness to permit it in the schools
 
 500 THE B. N. A. ACT SEC. 93. 
 
 (admitting that the trustees or committee had any discretion in 
 the matter, which is more than doubtful) ; was it not also 
 dependent on the Board of Education who had the general con- 
 trolling power ? If depending on circumstances such as these, 
 how can it be considered such a legal right as could have been 
 contemplated by the Imperial parliament in passing the 93rd 
 section of the B. N. A. Act ? Where is there anything that can, 
 with any propriety, be termed a legal right 9 Surely the legisla- 
 ture must have intended to deal with legal rights and privileges. 
 How is it to be defined ? How enforced ? " 
 
 It should be noted that all the members of the court 
 concurred in upholding the constitutionality of the Act, 
 and this judgment was upheld (in another case) upon 
 appeal to the Judicial Committee of the Privy Council 
 Maher v. Portland (p) the judgment of the Committee 
 being delivered without calling upon the respondents. It 
 simply expressed concurrence in the views of the New 
 Brunswick Supreme Court. 
 
 Manitoba. 
 
 This province became part of the Dominion in 1870, 
 and by what is popularly known as the Manitoba Act 
 (33 Vic. c. 3, Dom.), the power of the provincial legislature 
 in reference to education is defined : 
 
 to1?chin tion 22. In and for the Province, the said Legislature 
 
 schools sub- mav exclusively make Laws in relation to Education, 
 
 ject to certain J J 
 
 provisions subject and according to the following provisions : 
 
 (1) Nothing in any such Law shall prejudicially 
 affect any right or privilege with respect to Denomi- 
 national Schools which any class of persons have by 
 Law or practice in the Province at the Union : 
 
 (2) An appeal shall lie to the Governor-General 
 in Council from any Act or decision of the Legisla- 
 ture of the Province, or of any Provincial Authority, 
 affecting any right or privilege of the Protestant or 
 Eoman Catholic minority of the Queen's subjects in 
 relation to Education : 
 
 (l>) 2 Cart. 486 (n).
 
 THE B. N. A. ACT SEC. 93. 501 
 
 (3) In case any such Provincial Law, as from esed to 
 time to time seems to the Governor- General in Coun- Parliament. 
 cil requisite for the due execution of the provisions 
 of this section, is not made, or in case any decision 
 of the Governor- General in Council on any appeal 
 under this section is not duly executed by the 
 proper Provincial Authority in that behalf, then, and 
 in every such case, and as far only as the circum- 
 stances of each case require, the Parliament of Can- 
 ada may make remedial Laws for the due execution 
 of the provisions of this section, and of any decision 
 of the Governor-General in Council under this 
 section. 
 
 So far as affects the general question, we need here only 
 point out that one important distinction (q) to be drawn 
 between this section and section 93 of the B. N. A. Act, and 
 its sub-sections, is in the insertion of the words " or practice," 
 after the word "law" in sub-section 1. The insertion of 
 these words rendered necessary an inquiry into the nature 
 of the school system existing in the province of Manitoba 
 at the time when that province became part of the Domin- 
 ion. The whole matter is thus dilcussed, and disposed of 
 by the Judicial Committee of the Privy Council in the two 
 cases of Winnipeg v. Barrett, and Winnipeg v. Logan, before 
 referred to : 
 
 " These two appeals were heard together. In the one case 
 the City of Winnipeg appeals from a judgment of the Supreme 
 Court of Canada (>), reversing a judgment of the Court of Queen's 
 Bench for Manitoba, and in the other from a subsequent judg- 
 ment of the Court of Queen's Bench for Manitoba, following the 
 judgment of the Supreme Court. The judgments under appeal 
 quashed certain by-laws of the City of Winnipeg, which author- 
 ized assessments for school purposes in pursuance of the Public 
 Schools Act, 1890; a statute of Manitoba to which Roman 
 Catholics and members of the Church of England alike take 
 -exception. 
 
 (q) Another equally important one will be found noted post. 
 (r) 19 S. C. R. 374.
 
 502 THE B. N. A. ACT SEC. 93. 
 
 " Sub-sections 1, 2 and 3 of section 22 of the Manitoba Act, 
 1870, differ but slightly from the corresponding sub-sections of 
 section 93 of the British North America Act, 1867. The only 
 important difference is that in the Manitoba Act, in sub-section 
 1, the words 'by law' are followed by the words 'or practice,' 
 which do not occur in the corresponding passage in the British 
 North America Act, 1867. These words were no doubt intro- 
 duced to meet the special case of a country which had not as yet 
 enjoyed the security of laws properly so called. It is not, per- 
 haps, very easy to define precisely the meaning of such an expres- 
 sion as ' having a right or privilege by practice.' But the object of 
 the enactment is tolerably clear. Evidently the word ' practice ' 
 is not to be construed as equivalent to ' custom having the force 
 of law.' Their Lordships are convinced that it must have been 
 the intention of the legislature to preserve every legal right or 
 privilege and every benefit or advantage in the nature of a right 
 or privilege, with respect to denominational schools which any- 
 class of persons practically enjoyed at the time of the Union. 
 
 " What, then, was the state of things when Manitoba was 
 admitted to the Union ? On this point there is no dispute. It 
 is agreed that there was no law or regulation or ordinance with 
 respect to education in force at the time. There were therefore 
 no rights or privileges wim respect to denominational schools 
 existing by law. The practice which prevailed in Manitoba 
 before the Union is also a matter on which all parties are agreed. 
 The statement on the subject by Archbishop Tache, the Roman 
 Catholic archbishop of St. Boniface, who has given evidence iu 
 Barrett's case, has been accepted as accurate and complete. 
 ' There existed,' he says, 'in the territory now constituting the 
 province of Manitoba a number of effective schools for children. 
 These schools were denominational schools, some of them being 
 regulated and controlled by the Roman Catholic Church, and. 
 others by various Protestant denominations. The means neces- 
 sary for the support of Roman Catholic schools were supplied, to- 
 some extent, by school fees, paid by some of the parents of the 
 children who attended the schools, and the rest were paid out of 
 the funds of the church contributed by its members. During 
 the period referred to Roman Catholics had no interest in or 
 control over the schools of the Protestant denominations, and
 
 THE B. X. A. ACT SEC. 93. 503 
 
 the members of the Protestant denominations had no interest in 
 or control over the schools of the Eoman Catholics. There were 
 no public schools in the sense of state schools. The members of 
 the Eoman Catholic Church supported the schools of their own 
 Church for the benefit of the Roman Catholic children and were 
 not under obligation to and did not contribute to the support of 
 any other schools.' Now, if the state of things which the arch- 
 bishop describes as existing before the Union had been a system 
 established by law, what would have been the rights and privi- 
 leges of the Eoman Catholics with respect to denominational 
 schools ? They would have had by law the right to establish 
 schools at their own expense, to maintain their schools by school 
 fees or voluntary contributions, and to conduct them in accord- 
 ance with their own religious tenets. Every other religious 
 body which was engaged in a similar work at the time of the 
 Union would have had precisely the same right with respect to 
 their denominational schools. Possibly this right, if it had 
 been denned or recognized by positive enactment, might have 
 had attached to it, as a necessary or appropriate incident, the 
 right of exemption from any contribution under -any circum- 
 stances to schools of a different denomination. But, in their 
 Lordships' opinion, it would be going much too far to hold that 
 the establishment of a national system of education upon an 
 unsectarian basis is so inconsistent with the right to set up and 
 maintain denominational schools that the two things cannot 
 exist together, or that the existence of the one necessarily 
 implies or involves immunity from taxation for the purpose of 
 the other. It has been objected that if the rights of Eoman 
 Catholics, and of other religious bodies, in respect of their de- 
 nominational schools, are to be so strictly measured and limited 
 by the practice which actually prevailed at the time of the Union, 
 they will be reduced to the condition of a 'natural right' which 
 'does not want any legislation to protect it.' Such a right, it 
 was said, cannot be called a privilege in any proper sense of the 
 word. If that be so, the only result is that the protection which 
 the Act purports to extend to rights and privileges existing ' by 
 practice' has no more operation than the protection which it 
 purports to afford to rights and privileges existing ' by 
 law.' It can hardly be contended that, in order to give a sub-
 
 504 THE B. X. A. ACT SEC. 93. 
 
 stantial operation and effect to a saving clause expressed in 
 general terms, it is incumbent upon the court to discover privi- 
 leges which are not apparent of themselves, or to ascribe dis- 
 tinctive and peculiar features to rights \vhich seem to be of such 
 a common type as not to deserve special notice or require 
 special protection. 
 
 "Manitoba having been constituted a province of the Dominion 
 in 1870, the provincial legislature lost no time in dealing with 
 the question of education. In 1871 a law was passed which 
 established a system of denominational education in the common 
 schools, as they were then called. A board of education was 
 formed, which was to be divided into two sections, Protestant 
 and Eoman Catholic. Each section was to have under its con- 
 trol and management the discipline of the schools of the section. 
 Under the Manitoba Act the province had been divided into 
 twenty-four electoral divisions, for the purpose of electing mem- 
 bers to serve in the Legislative Assembly. By the Act of 1871 
 each electoral division was constituted a school district, in the 
 first instance. Twelve electoral divisions, ' comprising mainly 
 a Protestant population,' were to be considered Protestant school 
 districts ; twelve, ' comprising mainly a Roman Catholic popu- 
 lation,' were to be considered Eoman Catholic school districts. 
 Without the special sanction of the section there was not to be 
 more than one school in any school district. The male inhabi- 
 tants of each school district, assembled at an annual meeting, 
 were to decide in what manner they should raise their contribu- 
 tions towards the support of the school, in addition to what was 
 derived from public funds. It is, perhaps, not out of place to 
 observe that one of the modes prescribed was ' assessment on 
 the property of the school district,' which must have involved, 
 in some cases at any rate, an assessment on Roman Catholics 
 for the support of a Protestant school, and an assessment on Pro- 
 testants for the support of a Roman Catholic school. In the 
 event of an assessment there was no provision for exception, 
 except in the case of the father or guardian of a school child a 
 Protestant in a Roman Catholic school district or a Roman 
 Catholic in a Protestant school district who might escape by 
 sending the child to the school of the nearest district of the other 
 section and contributing to it an amount equal to what he would
 
 THE B. X. A. ACT SEC. 93. 505 
 
 liave paid if be had belonged to that district. The laws relating 
 to education were modified from time to time, but the system of 
 denominational education was maintained in full vigor until 
 1890. An Act passed in 1881, following an Act of 1875, pro- 
 vided among other things that the establishment of a school 
 district of one denomination should not prevent the establish- 
 ment of a school district of the other denomination in the same 
 place, and that a Protestant and a Roman Catholic district might 
 include the same territory in whole or in part. From the year 
 1876 until 1890 enactments were in force declaring that in no 
 case should a Protestant ratepayer be obliged to pay for a Roman 
 Catholic school or a Roman Catholic ratepayer for a Protestant 
 school. In 1890 the policy of the last nineteen years was re- 
 versed, and the denominational system of public education was 
 entirely swept away. Two Acts in relation to education were 
 passed. The first (53 Vic. c. 37^r established a department of 
 education and a board consisting of seven members, known as 
 the 'Advisory Board.' /"Four members of the board were to be 
 appointed by the department of education, two were to be elected 
 by the public and high school teachers, and the seventh member 
 was to be appointed by the University Council. One of the 
 powers of the Advisory Board was to prescribe the forms of 
 religious exercises to be used in the schools. The Public Schools 
 Act, 1890 (53 Vic. c. 38), enacted that all Protestant and Roman 
 Catholic school districts should be subjected to the provisions of 
 the Act, and that all public schools should be free schools. The 
 provisions of the Act with regard to religious exercises are as 
 follows : ' (6) Religious exercises in the public schools shall be 
 conducted according to the regulations of the Advisory Board. 
 The time for such religious exercises shall be just before the 
 closing hour in the afternoon. In case the parent or guardian 
 of any pupil notifies the teacher that he does not wish such pupil 
 to attend such religious exercises, then such pupil shall be dis- 
 missed before such religious exercises shall take place. (7) Re- 
 ligious exercises shall be held in a public school entirely at the 
 option of the school trustees for the district, and, upon receiving 
 authority from the trustees, it shall be the duty of the teachers 
 to hold such religious exercises. (8) The public schools shall 
 be entirely non-sectarian, and no religious exercises shall be
 
 506 THE B. X. A. ACT SEC. 93. 
 
 allowed therein except as above provided.' The Act then pro- 
 vides for the formation, alteration, and union of school districts, 
 for the election of school trustees, and for levying a rate on the 
 taxable property in each school district for school purposes. In 
 cities the municipal council is required to levy and collect upon 
 the taxable property within the municipality such sums as the 
 school trustees may require for school purposes. A portion of 
 the legislative grant for educational purposes is allotted to public 
 schools ; but it is provided that any school not conducted accord- 
 ing to all the provisions of the Act, or any Act in force for the 
 time being, or the regulations of the Department of Education, or 
 the Advisory Board, shall not be deemed a public school within 
 the meaning of the law and shall not participate in the legisla- 
 tive grant. Section 141 provides that no teacher shall use or 
 permit to be used as text books any books except such as are 
 authorised by the Advisory Board, and that no portion of the 
 legislative grant shall be paid to any school in which unauthor- 
 ised books are used. Then there are two sections (178 and 179) 
 which call for a passing notice, because, owing apparently to 
 some misapprehension, they are spoken of in one of the judg- 
 ments under appeal as if their effect was to confiscate Roman 
 Catholic property. They apply to cases where the same territory 
 was covered by a Protestant school district and by a Roman 
 Catholic school district. In such a case Roman Catholics were 
 really placed in a better position than Protestants. Certain ex- 
 emptions were to be made in their favor if the assets of their 
 district exceeded its liabilities, or if the liabilities of the Pro- 
 testant school district exceeded its assets. But no corresponding 
 exemptions were to be made in the case of Protestants. 
 
 " Such being the main provisions of the Public Schools Act, 
 1890, their Lordships have to determine whether that Act pre- 
 judicially affects any right or privilege Avith respect to denomi- 
 national schools which any class of persons had by law or prac- 
 tice in the province at the Union. Notwithstanding the Public 
 Sf/iintls Act, 1890, Hainan Catholics and members of every other 
 religious body in Manitoba are free to establish sellout* throughout the 
 l>rorince ; they are free to maintain their si-hook by school fees or 
 voluntary subscriptions ; they are free to conduct their schools aecord- 
 imj to their own reliaionx tenets without molestation or interference*
 
 THE B. X. A. ACT SEC. 93. 50T 
 
 Xo child is compelled t<> attend a public school. No special advan- 
 tage other than the advantage of a free education in schools con- 
 ducted under public management is held out to those who do 
 attend. But then it is said that it is impossible for Eomaii 
 Catholics or for members of the Church of England (if their 
 views are correctly represented by the bishop of Rupert's Land, 
 who has given evidence in Logan's case) to send their children 
 to public schools where the education is not superintended and 
 directed by the authorities of their church, and that therefore 
 Roman Catholics and members of the Church of England who 
 are taxed for public schools, and at the same time feel themselves 
 compelled to support their own schools, are in a less favourable 
 position than those who can take advantrge of the free education 
 provided by the Act of 1890. That may be so. But what right 
 or privilege is violated or prejudicially affected by the law ? It 
 is not the law that is in fault; it is owing to religious convictions, 
 which everybody must respect, and to the teaching of their 
 church, that Roman Catholics and the members of the Church 
 of England find themselves unable to partake of advantages 
 which the law offers to all alike. 
 
 " Their Lordships are sensible of the weight which must 
 attach to the unanimous decision of the Supreme Court. They 
 have anxiously considered the able and elaborate judgments by 
 which that decision has been supported. But they are unable to 
 agree with the opinion which the learned Judges of the Supreme 
 Court have expressed as to the rights and privileges of Roman 
 Catholics in Manitoba at the time of the Union. They doubt 
 whether it is- permissible to refer to the course of legislation 
 between 1871 and 1890, as a means of throwing light on the 
 previous practice or on the construction of the saving clause in 
 the Manitoba Act. They cannot assent to the view, which 
 seems to be indicated by one of the members of the Supreme 
 Court, that public schools under the Act of 1890 are in reality 
 Protestant schools. The legislature has declared in so many 
 words that the public schools shall be entirely unsectarian, and 
 that is carried out throughout the Act." 
 
 In a sense this decision has no reference to the other 
 provinces or to the North-West Territories. So far as Man- 
 itoba alone is concerned, it decisively disposes of the ques-
 
 508 
 
 THE B. X. A. ACT SEC. 93. 
 
 
 tion. The Manitoba Act, 1870, was afterwards confirmed 
 by Imperial legislation, and put beyond the legislative com- 
 petence of the Dominion parliament to alter it in any 
 particular; and the time within which the Manitoba School 
 Act might have been disallowed by the Governor-General 
 in Council has long since expired. 
 
 In view, however, of this decision much discussion has 
 taken place in reference to the powers of the Governor- 
 General in Council under sub-section 3, and of the parlia- 
 ment of Canada under sub-section 4. So far as the province 
 of Manitoba is concerned, it is to be noticed, that the open- 
 ing clause of sub-section 3 of section 93 of the B. N. A. Act 
 is not contained in the corresponding sub-section of the 
 Manitoba Act, 1870, and, therefore, the fact that, since its 
 admission to the Dominion, there has been legislation in 
 that province which might be contended to have established 
 a system of separate schools there, can have no bearing 
 upon this question. As to that province the pronounce- 
 ment of the Privy Council is decisive, that the Manitoba 
 Public Schools Act does not affect, prejudicially or other- 
 wise, any right or privilege protected by section 22 of the 
 Manitoba Act, 1870. 
 
 It may not, however, be out of place to consider the 
 position of all the provinces in reference to this matter of 
 an appeal to the Governor-General in Council, and of the 
 power of the Dominion parliament to pass "remedial" laws. 
 The provision as to an appeal to the Governor-General in 
 Council is a very peculiar one, because no provision 
 whatever is made for the enforcement of the decision of the 
 Dominion executive, otherwise than by legislation by the 
 Dominion parliament under sub-section 4. The language 
 of the Committee, in Barrett v. Winnipeg, leads one to infer 
 that, in their opinion, the functions of the Governor-General 
 in Council are not of a judicial character, that is to say, 
 that it does not properly devolve upon the Dominion execu- 
 tive to consider the constitutionality of provincial enact-
 
 THE B. X. A. ACT SEC. 93. 509' 
 
 ments, or of the decision of the "provincial authority" 
 (whatever that may be taken to mean) mentioned in the sub- 
 section. The appeal, therefore, would seem to be limited 
 to supervising and suggesting alterations to provincial 
 enactments, "affecting any riffht or privilege of the Pro- 
 testant or Roman Catholic minority of the Queen's subjects.. 
 in relation to education. ]T.n the event of the ruling, 
 decision, or whatever it may be called, of the Dominion 
 executive not being duly executed by the provincial 
 authorities, the provisions of sub-section 4, may be invoked. 
 But as a condition precedent to any right to interfere with 
 provincial legislation, one must be able to predicate that in 
 the province concerned there exists any "right or privilege '' 
 enjoyed by the Protestant or Roman Catholic minority in 
 such province, and that the provincial legislation com- 
 plained of affects such right or privilege. It is to be noted 
 that the word ' prejudicially ' does not occur in this sub- 
 section, and this bears out the view for which we have 
 been contending, that interference on the part of the 
 Dominion authorities can properly take place only in con- 
 nection with valid provincial legislation. Legislation iQr\ 
 l_>ri-ji'<li<--H(lly affecting such right or privilege is void. -^jv 
 Legislation affecting it otherwise than prejudicially is valid, 
 but may be clumsy and unworkable. Such defects the 
 parliament of Canada can remedy. 
 
 We have attempted in a former place to summarize the 
 rights and privileges enjoyed by the religious minorities of 
 Ontario and Quebec, and, as to the other provinces, the posi- 
 tion would seem to be, at best from the separatist stand- 
 point that indicated in the judgment of the Privy Council 
 in Winnipeg v. Barrett, although, perhaps, it is matter of 
 doubt whether the rights and privileges there enumerated 
 as to Manitoba, exist to their full extent in the other pro- 
 vinces. In fact, the judgment in Ex parte Renaud 
 (affirmed, as we have seen, in the Privy Council) seems to 
 indicate that in the provinces other than Ontario, Quebec, 
 and Manitoba, religious denominations have no "right or
 
 510 THE B. X. A. ACT SEC. 93. 
 
 privilege" by law in respect to education, within the mean- 
 ing of, and requiring the protection of, the various sub- 
 sections of section 93. The question which suggests itself 
 as doubtful is as to the power to entirely prohibit denom- 
 inational schools, or, in other words, to compel universal 
 attendance at state schools. 
 
 The North- West Territories. 
 
 The parliament of Canada having power (subject always 
 to the paramount legislative supremacy of the Imperial 
 parliament) to pass laws for the "peace, order and good 
 government" of these territories, not as yet elevated to pro- 
 vincial dignity (s), the position of affairs there is as yet 
 embryonic. In respect to educational matters, the powers 
 of the Legislative Assembly are at present circumscribed, 
 as will appear from the following section of the North-West 
 Territories Act R. S. C., c. 50. 
 
 14. The Lieutenant-Governor in Council (t) shall pass all 
 necessary ordinances in respect to education ; but it shall 
 therein always be provided, that a majority of the ratepayers of 
 any district or portion of the Territories, or of any less portion 
 or sub-division thereof, by whatever name the same is known, 
 may establish such schools therein as they think fit, and make 
 the necessary assessment and collection of rates therefor ; and 
 also that the minority of the ratepayers therein, whether Protes- 
 tant or Eoman Catholic, may establish separate schools therein 
 and in such case, the ratepayers establishing such Protestant 
 or Roman Catholic separate schools shall be liable only to 
 assessments of such rates as they impose upon themselves in 
 respect thereof : 
 
 2. The power to pass ordinances, conferred upon the Lieu- 
 tenant-Governor by this section is hereby declared to have been 
 vested in him from the seventh day of May, 1880. 
 
 (s) See ante, p. 347. The position of these Territories will be dealt 
 with more at length in Part IV. 
 
 (t) Now the Legislative Assembly. See j)ost.
 
 THE B. N. A. ACT SEC. 94. 511 
 
 It is much to be hoped that when (as will doubtless 
 soon be the case) new provinces are erected in these Terri- 
 tories, they will be given full control of educational 
 matters. In expressing this hope we perhaps " travel 
 beyond the record." 
 
 Uniformity of Laivs in Ontario, Nova 
 Scotia and New Brunswick. 
 
 94. Notwithstanding anything in this SJifo?Si- 
 Act, the Parliament of Canada may make th y reepro- slE 
 provision for the uniformity of all or any. 
 of the laws relative to property and civil 
 rights in Ontario, Nova Scotia and New 
 Brunswick, and of the procedure of all 
 or any of the Courts in those three Pro- 
 vinces ; and from and after the passing 
 of any Act in that behalf the power of 
 the Parliament of Canada to make laws 
 in relation to any matter comprised in 
 any such Act shall, notwithstanding any- 
 thing in this Act, be unrestricted ; Jbut_ay 
 Act of the Parliament of Canada making 
 provision for such uniformity shall not 
 have effect in any Province unless and 
 until it is adopted and enacted as law 
 by the Legislature thereof. 
 
 Nothing has ever been done toward carrying out this 
 idea. The only use to which the section has been put has 
 been in utilizing the expression "property and civil rights" 
 which occurs in it as a key to the interpretation of the 
 same term in sub-section 13 of section 92. The passage in 
 Citizens v. Parsons is quoted at length in the notes to that 
 sub-section.
 
 512 
 
 THE B. X. A. ACT SECS. 95-7. 
 
 Concurrent 
 
 Eowers of 
 egislation 
 respecting 
 Agriculture, 
 &c. 
 
 Agriculture and Immigration. 
 
 95. In each Province the Legislature 
 may make laws in relation to Agriculture 
 in the Province, and to Immigration into 
 the Province ; and it is hereby declared 
 that the Parliament of Canada may from 
 time to time make laws in relation to 
 Agriculture in all or any of the Provinces, 
 and to Immigration into all or any of the 
 Provinces; and any law of the Legislature 
 of a Province relative to Agriculture or to 
 Immigration shall have effect in and for 
 the Province as long and as far only as it 
 is not repugnant to any Act of the Parlia- 
 ment of Canada. 
 
 See ante, p. 215, as to the bearing of this section on the 
 general question of " concurrent " powers. 
 
 Appointment 
 of Judges. 
 
 VII . JUDICATURE . 
 
 96. The Governor- General shall ap- 
 point the Judges of the Superior, District, 
 and County Courts in each Province, ex- 
 cept those of the Courts of Probate in 
 Nova Scotia and New Brunswick. 
 
 97. Until the laws relative to pro- 
 perty and civil rights in Ontario, Nova 
 Scotia, and New Brunswick, and the pro- 
 cedure of the Courts in those Provinces, 
 are made uniform, the Judges of the 
 Courts of those Provinces appointed by 
 the Governor-General shall be selected 
 
 Selection of 
 Judges in
 
 THE B. X. A. ACT SECS. 98-100. 513 
 
 from the respective Bars of those Pro- 
 vinces. 
 
 98. The Judges of the Courts of !$*? of 
 Quebec shall be selected from the Bar of Que 
 that Province. 
 
 99. The Judges of the Superior 
 Courts shall hold office during good 
 behaviour, but shall be removable by the 
 Governor-General on address of the Sen- 
 ate and House of Commons. 
 
 100. The salaries, allowances, and 
 pensions of the Judges of the Superior, 
 District, and County Courts (except the 
 Courts of Probate in Nova Scotia and 
 New Brunswick), and of the Admiralty 
 Courts in cases where the Judges thereof 
 are for the time being paid by salary, 
 shall be fixed and provided by the Parlia- 
 ment of Canada. 
 
 " Judicature." We have already devoted a chapter to 
 a discussion of our judicial system (u], and it remains now 
 merely to refer to the question of the " tenure of office " of 
 those judges whose appointment under the 96th section is 
 with the Dominion government. The B. N. A. Act con- 
 tains no express provision beyond section 99, which applies 
 only to the Superior Court judges, and beyond what may 
 be inferred from the provision in section 100 that the 
 salaries of all these judges are to be " fixed and provided " 
 by the parliament of Canada. 
 
 Does the power to appoint carry with it the power to 
 remove 1 It is submitted that it does, and that, notwith- 
 
 (u) See chapter XI. and notes to s. 92, s-s. 14. 
 CAN. CON. 33
 
 514 THE B. N. A. ACT SEC. 101. 
 
 standing sub-section 14 of section 92 by which "the 
 administration of justice in the province" is assigned to 
 provincial legislatures, the parliament of Canada alone can 
 legislate (subject, as to Superior Court judges, to section 99) 
 as to the qualifications and nature of tenure (including, of 
 course, provisions as to removal from office) of the judges 
 mentioned in section 96. In Re Squier (v) the validity of 
 a commission of enquiry issued by the Governor-General 
 purporting to be under the Imperial Act (22 Geo. III. c. 75) 
 relating to the removal of colonial officers, was in question. 
 It seems to have been admitted on the argument and held 
 by the court that the legislative assembly of Ontario, 
 had no power to abolish the old Court of Impeachment 
 established before Confederation by the parliament of (old) 
 Canada for trying complaints against County Court 
 judges C. S. U. C. c. 14. The precise ground is not stated, 
 but as a proceeding under the Consolidated Statute is 
 enumerated as one of the methods of attack then open, the 
 decision could not have been based on the ground of the 
 "repugnancy" of such provincial legislation to Imperial 
 enactment. Such ground would equally affirm the inval- 
 idity of the original Act, and the decision therefore must 
 be taken to be that legislation in reference to the removal 
 of those judges mentioned in section 96 must come from 
 the Dominion parliament. 
 
 ^SSJuE 101- The Parliament of Canada may, 
 notwithstanding anything in this Act, 
 from time to time, provide for the con- 
 stitution, maintenance, and organization 
 of a general Court of Appeal for Canada, 
 and for the establishment of any addi- 
 tional Courts for the better administra- 
 tion of the Laws of Canada. 
 
 (v) 46 U. C. Q. B. 474.
 
 THE B. X. A. ACT SEC. 101. 
 
 415 
 
 This section, too, has already been fully discussed. In 
 chapter XL we have endeavored to make clear that the 
 jurisdiction of any " additional courts " established by the 
 Dominion parliament under this section must be limited to 
 the administration of laws passed by that parliament, or 
 in relation to matters falling within the purview of its 
 powers. 
 
 The particular line of division adopted to secure the 
 administration of justice throughout Canada is a very 
 illogical one, so far as relates to provincial courts. While 
 power to constitute courts, with such jurisdiction, civil or 
 criminal, as may be deemed expedient, is with the provin- 
 cial . legislatures, the judges in the most important of them 
 must be appointed by the Dominion government, and the 
 "' procedure " in criminal matters in any of them which 
 have jurisdiction over such matters as well as procedure 
 in all those branches of jurisprudence which are wrapped 
 up in the various sub-sections of section 91 (w) is matter 
 to be regulated exclusively, by the parliament of Canada. 
 As to any additional courts to be established by the 
 Dominion parliament under this section, the position is 
 entirely different. The provinces should, on any logical 
 division, have been given full control of provincial courts. 
 Then if Dominion laws were found to be unsatisfactorily 
 administered in those courts, the reserve power- of this 
 isection 101 could be invoked. As has been before inti- 
 mated, a duly constituted court of law, no matter by what 
 authority constituted, must give effect to the law which 
 governs the "legal relations" arising out of the facts in 
 question in any litigation, by whatsoever duly constituted 
 authority those legal relations are determined ; and there- 
 fore the appointment of the judges by the Dominion gov- 
 ernment was in no way necessary for the administration of 
 Dominion law ; if appointed by the provincial governments, 
 they would be equally bound by their oaths of office to 
 
 / tc ) See ante, p. 235, et seq.
 
 516 THE B. N. A. ACT SECS. 102, 103. 
 
 administer that law when applicable to the facts of the 
 case. In any event, this section 101 would sufficiently pro- 
 tect the federal government in the administration of federal 
 law. 
 
 Under the authority conferred by this sectiop was 
 established the Supreme Court of Canada as a general 
 court of appeal for the Dominion. What its jurisdiction 
 shall be is of course for the parliament of Canada to deter- 
 mine. In Clarkson v. Ryan (x) it was held that a provin- 
 cial legislature has no power to affix conditions or 
 limitations upon appeals to the Supreme Court. That is 
 entirely for the federal parliament. 
 
 VIII. EEVENUES; DEBTS; ASSETS; TAX- 
 ATION (?/). 
 
 con a soHaated 102. All duties and revenues over 
 Id which the respective Legislatures of Can- 
 ada, Nova Scotia, and New Brunswick 
 before and at the Union had and have 
 power of appropriation, except such por- 
 tions thereof as are by this Act reserved 
 to the respective Legislatures of the Pro- 
 vinces, or are raised by them in accord- 
 ance with the special powers conferred on 
 them by this Act, shall form one Consoli- 
 dated Eevenue Fund, to be appropriated 
 for the public service of Canada in the 
 manner and subject to the charges in this 
 Act provided. 
 
 ^oXS.&c. 103 The Consolidated Eevenue Fund 
 of Canada shall be permanently charged 
 
 (x) 17 S. C. E. 251. 
 
 (y) It is thought advisable to note this group together. See the 
 general discussion in note (i) following section 126. The matter of the 
 other notes sufficiently appears in their italicized head-lines.
 
 THE B. X. A. ACT SECS. 104-107. 517 
 
 with the costs, charges, and expenses 
 incident to the collection, management, 
 and receipt thereof, and the same shall 
 form the first charge thereon, subject to 
 be reviewed and audited in such manner 
 as shall be ordered by the Governor- 
 General in Council, until the Parliament 
 otherwise provides. 
 
 104. The annual interest of the public ^2 
 debts of the several Provinces of Canada, P ublicdebts - 
 Nova Scotia, and New Brunswick at the 
 Union shall form the second charge on 
 the Consolidated Eevenue Fund of Can- 
 ada. 
 
 105. Unless altered by the Parlia- 
 ment of Canada, the salary of the Gover- G 
 nor-General shall be ten thousand pounds 
 Stirling money of the United Kingdom of 
 Great Britain and Ireland, payable out of 
 the Consolidated Eevenue Fund of Can- 
 ada, and the same shall form the third 
 charge thereon. 
 
 106- Subject to the several payments $ 
 by this Act charged on the Consolidated * 
 Kevenue Fund of Canada, the same shall 
 be appropriated by the Parliament of 
 Canada for the public service. 
 
 107- All stocks, cash, banker's bal- S 7 a c f & r c of 
 ances, and securities for money belonging 
 
 to each Province at the time of the 
 Union, except as in this Act mentioned,
 
 518 THE B. X. A. ACT SECS. 108, 109. 
 
 shall be the property of Canada, and shall 
 be taken in reduction of the amount of 
 the respective debts of the Provinces at 
 the Union. 
 
 SSSjfn 108. The public works and property 
 
 of each Province, enumerated in the third 
 Schedule to this Act, shall be the pro- 
 perty of Canada. 
 
 THE THIRD SCHEDULE. 
 Provincial Public Works and Property to be the Property of Canada. 
 
 1. Canals, with Laud and Water Power connected there- 
 
 with. 
 
 2. Public Harbours (2). 
 
 3. Lighthouses and Piers, and Sable Island. 
 
 4. Steamboats, Dredges, and public Vessels. 
 
 5. Kivers and Lake Improvements (a). 
 
 6. Railways and Railway Stocks, Mortgages, and other 
 
 Debts due by Railway Companies (b). 
 
 7. Military Roads. 
 
 8. Custom Houses, Post Offices and all other Public Build- 
 
 ings, except such as the Government of Canada appro- 
 priate for the use of the Provincial Legislatures and 
 Governments. 
 
 9. Property transferred by the Imperial Government, and 
 
 known as Ordnance Property (c). 
 
 10. Armouries, Drill Sheds, Military Clothing, and Muni- 
 tions of War, and Lands set apart for general public 
 purposes. 
 
 SSK'miSU, 109. All lands, mines, minerals, and 
 royalties belonging to the several Pro- 
 vinces of Canada, Nova Scotia and New 
 
 (z) See note (ii) following sec. 126, post. 
 
 (a) " (iii) ' 
 
 (b) " (iv) ' ' 
 
 (c) " (v) "
 
 THE B. N. A. ACT SECS. 110-113. 519 
 
 Brunswick at the Union, and all sums 
 then due or payable for such lands, mines, 
 minerals, or royalties, shall belong to the 
 several Provinces of Ontario, Quebec, 
 Nova Scotia, and New Brunswick in 
 which the same are situate or arise, sub- 
 ject to any trusts existing in respect 
 thereof, and to any interest other than 
 that of the Province in the same. 
 
 110. All assets connected with such Twithp n iE~ 
 portions of the public debt of each Prov- V1 
 
 ince as are assumed by that Province 
 shall belong to that Province. 
 
 111. Canada shall be liable for the ffl^* be 
 debts and liabilities of each Province debts mci 
 existing at the Union. 
 
 112. Ontario and Quebec conjointly t D a e r ^ 8 a f a n - 
 shall be liable to Canada for the amount Que 
 
 (if any) by which the debt of the Province 
 of Canada exceeds at the Union sixty-two 
 million five hundred thousand dollars, and 
 shall be charged with interest at the rate 
 of five per centum per annum thereon. 
 
 113. The assets enumerated in the oS5Soa 
 
 fourth Schedule to this Act belonging at Que 
 the Union to the Province of Canada 
 shall be the property of Ontario and Que- 
 bec conjointly. 
 
 THE FOURTH SCHEDULE. 
 
 Assets to be the Property of Ontario and Quebec conjointly. 
 Upper Canada Building Fund. 
 Lunatic Asvlums.
 
 520 THE B. X. A. ACT SECS. 114, 115. 
 
 Normal School. 
 Court Houses, ^ 
 in 
 
 Aylmer. 
 
 >Lower Canada. 
 
 Montreal. 
 
 Kamouraska. 
 
 Law Society, Upper Canada. 
 
 Montreal Turnpike Trust. 
 
 University Permanent Fund. 
 
 Royal Institution. 
 
 Consolidated Municipal Loan Fund, Upper Canada. 
 
 Consolidated Municipal Loan Fund, Lower Canada. 
 
 Agricultural Society, Upper Canada. 
 
 Lower Canada Legislative Grant. 
 
 Quebec Fire Loan. 
 
 Tamiscouata Advance Account. 
 
 Quebec Turnpike Trust. 
 
 Education East. 
 
 Building and Jury Fund, Lower Canada. 
 
 Municipalities Fund. 
 
 Lower Canada Superior Education Income Fund. 
 
 Ic e o b tia 0fNova 114. Nova Scotia shall be liable to 
 Canada for the amount (if any) by which 
 its public debt exceeds at the Union eight 
 million dollars, and shall be charged with 
 interest at the rate of five per centum per 
 annum thereon. 
 
 Er e unswick ew 115. New Brunswick shall be liable 
 to Canada for the amount (if any) by 
 which its public debt exceeds at the 
 Union seven million dollars, and shall be 
 charged with interest at the rate of five 
 per centum per annum thereon.
 
 THE B. X. A. ACT SECS. 116-118. 521 
 
 116. In case the public debts of Nova F u a 
 Scotia and New Brunswick do not at the 
 
 ... Brunswick 
 
 Union amount to eight million and seven 
 million dollars respectively, they shall 
 respectively receive by half-yearly pay- 
 ments in advance from the Government 
 of Canada interest at five per centum per 
 annum on the difference between the 
 actual amounts of their respective debts 
 and such stipulated amounts. 
 
 117. The several Provinces shall re- 
 tain all their respective public property p< 
 not otherwise disposed of in this Act, sub- 
 ject to the right of Canada to assume any 
 lands or public property required for for- 
 tifications or for the defence of the coun- 
 try. 
 
 118- The following sums shall be 
 paid yearly by Canada to the several Pro- 
 vinces for the support of their Govern- 
 ments and Legislatures : 
 
 Dollars. 
 
 Ontario - - - - Eighty thousand. 
 Quebec - - - - Seventy thousand. 
 Nova Scotia - - - Sixty thousand. 
 New Brunswick - - Fifty thousand. 
 
 Two hundred and sixty thousand ; 
 and an annual grant in aid of each Pro- 
 vince shall be made, equal to eighty cents 
 per head of the population as ascertained 
 by the Census of one thousand eight him-
 
 522 
 
 THE B. N. A. ACT SECS. 119, 120. 
 
 Further grant 
 to New 
 Brunswick. 
 
 Form of 
 payments. 
 
 dred and sixty-one, and in the case of 
 Nova Scotia and New Brunswick, by each 
 subsequent decennial Census until the 
 population of each of those two Provinces 
 amounts to four hundred thousand souls, 
 at which rate such grant shall thereafter 
 remain. Such grants shall be in full 
 settlement of all future demands on Can- 
 ada, and shall be paid half-yearly in 
 advance to each Province ; but the Gov- 
 ernment of Canada shall deduct from such 
 grants, as against any Province, all sums 
 chargeable as interest on the Public Debt 
 of that Province in excess of the several 
 amounts stipulated in this Act. 
 
 119. New Brunswick shall receive 
 by half-yearly payments in advance from 
 Canada for the period of ten years from 
 the Union an additional allowance of 
 sixty-three thousand dollars per annum ; 
 but as long as the Public Debt of that 
 Province remains under seven million 
 dollars, a deduction equal to the interest 
 at five per centum per annum on such 
 deficiency shall be made from that allow- 
 ance of sixty-three thousand dollars. 
 
 120- All payments to be made under 
 this Act, or in discharge of liabilities 
 created under any Act of the Provinces of 
 Canada, Nova Scotia, and New Bruns- 
 wick respectively, and assumed by Can- 
 ada, shall, until the Parliament of Can-
 
 THE B. X. A. ACT SECS. 121-124. 52$ 
 
 ada otherwise directs, be made in such 
 form and manner as may from time to 
 time be ordered by the Governor-General 
 in Council. 
 
 121- All articles of the growth, pro- a a a u ures , 
 duce, or manufacture of any one of the 
 Provinces shall, from and after the Union, 
 be admitted free into each of the other 
 Provinces. 
 
 122- The Customs and Excise Laws 
 
 of each Province shall, subject to the Laws. xc 
 provisions of this Act^ continue in force 
 until altered by the Parliament of Canada. 
 
 123- Where Customs duties are, at ?!? 
 the Union, leviable on any goods, wares, tl 
 
 or merchandises in any two Provinces, 
 those goods, wares, and merchandises 
 may, from and after the Union, be im- 
 ported from one of those Provinces into 
 the other of them on proof of payment of 
 the Customs duty leviable thereon in 
 the Province of exportation, and on pay- 
 ment of such further amount (if any) of 
 Customs duty as is leviable thereon in the 
 Province of importation. 
 
 124- Nothing in this Act shall affect k u e b r ' dues 
 the right of New Brunswick to levy the B un ^ wlc 
 lumber dues provided in chapter fifteen of 
 title three of the Eevised Statutes of Xew 
 Brunswick, or in any Act amending that 
 
 (d) See note (vi) following section 126, post.
 
 THE B. X. A. ACT SECS. 125, 126. 
 
 Act before or after the Union, and not 
 increasing the amount of such dues ; but 
 the lumber of any of the Provinces other 
 than New Brunswick shall not be subject 
 to such dues. 
 
 125- No lands or property belonging 
 to Canada or any Province shall be liable 
 to taxation (e). 
 
 126- Such portions of the duties and 
 revenues over which the respective Legis- 
 latures of Canada, Nova Scotia, and New 
 Brunswick had before the Union power of 
 appropriation as are by this Act reserved 
 to the respective Governments or Legis- 
 latures of the Provinces, and all duties 
 and revenues raised by them in accord- 
 ance with the special powers conferred 
 upon them by this Act, shall in each Pro- 
 vince form one Consolidated Revenue 
 Fund to be appropriated for the public 
 service of the Province. 
 
 (i) " Revenues, etc" In arriving at a determination of 
 the line of division of revenues, etc., effected by this group 
 of clauses we must bear in mind what is said by Lord 
 Watson in delivering the judgment of the Judicial Com- 
 mittee of the Privy Council in a case to which we have 
 already had occasion to refer St. Catharines' Milling Co. 
 v. The % Queen (/) : 
 
 " There can be no a priori probability that the British Legis- 
 lature, in a branch of the statute which professes to deal only 
 
 (e) See note (vii) following section 126, post. 
 
 (f) 14 App. Gas. 46, at p. 59. See notes to sec. 91, s-s. 24, ante.
 
 THE B. X. A. ACT SEC. 126. 525- 
 
 with the distribution of legislative power, intended to deprive the 
 
 provinces of rights which are expressly given them in that 
 
 branch of it which relates to the distribution of revenues and 
 
 assets." 
 
 by way of application of which rule to the case then in 
 
 hand, he says : 
 
 " The fact that the power of legislating for Indians, and for 
 lands which are reserved to their use, has been entrusted to the 
 parliament of the Dominion is not in the least degree inconsistent 
 with the right of the provinces to a beneficial interest in those 
 lands, available to them as a source of revenue whenever the 
 estate of the Crown is disencumbered of the Indian title." 
 
 It is matter for remark, too, that in construing these 
 sections, the Committee has taken into consideration the 
 " high political nature " of the B. N. A. Act. In Attorney- 
 General of Ontario v. Mercer (g), they speak of " the attri- 
 bution of royal territorial rights for purposes of revenue 
 and government." Their reference in the later case to a 
 priori probabilities indicates the use of aids to the inter- 
 pretation of these sections somewhat wider than those 
 which they have felt free to use in construing the various 
 sub-sections of sections 91 and 92, which provide for the 
 division of the field of subject matters proper for legisla- 
 tive action between the Dominion and the provinces. 
 
 Owing to the reference made in these sections to the 
 power of appropriation over the duties and revenues arising 
 in the pre-Confederation provinces we may refer to what 
 has been alreadjr said in chapter II. (h\ Taking up the 
 thread at the date of the Union Act, 1840, the Committee 
 thus characterize its provisions upon this head (i) : 
 
 " By an Imperial statute passed in the year 1840 (3 & 4 Vic. 
 c. 35) the provinces of Ontario and Quebec, then known as Upper 
 and Lower Canada, were united under the name of the Province 
 of Canada, and it was, inter alia, enacted that in consideration 
 of certain annual payments which Her Majesty had agreed to 
 
 (g) 8 App. Gas. 767. (h) Ante, p. 35, et seq. 
 
 (i) 14 App. Cas. at p. 55.
 
 526 THE B. X. A. ACT SEC. 126. 
 
 accept by way of 'civil list,' the produce of all territorial and 
 other revenues at the disposal of the Crown arising in either of 
 the united provinces should be paid into the Consolidated 
 Revenue Fund of the said province. There was no transfer to 
 the province of any legal estate in the Crown lands, which con- 
 tinued to be vested in the Sovereign ; but all monies realized by 
 sales or in any other manner became the property of the 
 province. In other -words, all beneficial interest in such lands 
 within the provincial boundaries belonging to the Queen, and 
 either producing or capable of producing revenue, passed to the 
 province, the title still remaining in the Crown. That continued 
 to be the right of the province until the passing of the British 
 North America Act, 1867." 
 
 The Consolidated Revenue Fund created by this Act 
 was to be appropriated subject to the payment of the 
 " civil list " charges by the Canadian parliament " for the 
 public service in such manner as they shall think proper." 
 We should, perhaps, point out that the 42nd section of the 
 Union Act, 1840, limited the right of the then province to 
 dispose of the " waste lands of the Crown," but this section 
 was repealed by 17 & 18 Vic. c. 118, s. 6. We may 
 refer also to the Imperial Act, 10 & 11 Vic. c. 71, which 
 handed over to the province the control of the civil list. 
 Prior to Confederation, therefore, the parliament of (old) 
 Canada had the fullest power of appropriation over these 
 territorial and other revenues, as had also the assemblies 
 of the Maritime Provinces over the revenues therein 
 arising (j). 
 
 The scheme of division of assets, etc., effected by the 
 B. N. A. Act has been the subject of exhaustive examination 
 by the Judicial Committee of the Privy Council in the two 
 cases to which we have above referred. We quote from 
 the judgment in the later case (k) : 
 
 et seq 
 
 See note (b), ante, p. 40. 
 (k) St. Catharines' Milling Go. v. The Queen, 14 App. Gas. at p. 56 
 
 \Pfl
 
 THE B. X. A. ACT SEC. 126. 527 
 
 " The Act also contains careful provisions for the distribu- 
 tion of legislative powers and of revenues and assets between 
 the respective provinces included in the Union, on the one hand, 
 and the Dominion on the other. The conflicting claims to the 
 ceded territory maintained by the Dominion and the province of 
 Ontario are wholly dependent upon these statutory provisions. 
 In construing these enactments it must be always kept in view 
 that, wherever public land with its incidents is described as 
 ' the property of ' or as ' belonging to ' the Dominion or a pro- 
 vince, these expressions merely import that the right to its 
 beneficial use, or to its proceeds, has been appropriated to the 
 Dominion or the province, as the case may be, and is subject to 
 the control of its legislature, the land itself being vested in the 
 Crown. 
 
 " Section 108 enacts that the public works and undertakings 
 enumerated in Schedule 3 shall be the property of Canada. As 
 specified in the Schedule, these consist of public undertakings 
 which might be fairly considered to exist for the benefit of all 
 the provinces federally united, of lands and buildings necessary 
 for carrying on the customs or postal service of the Dominion, 
 or required for the purpose of national defence, and of ' lands 
 set apart for general public purposes.' It is obvious that the 
 enumeration cannot be reasonably held to include Crown lands 
 which are reserved for Indian use. The only other clause in the 
 Act by which a share of what previously constituted pro vincial 
 revenues and assets is directly assigned to the Dominion is sec- 
 tion 102. It enacts that all ' duties and revenues ' over which 
 the respective legislatures of the united provinces had and have 
 power of appropriation, ' except such portions thereof as are by 
 this Act reserved to the respective legislatures of the provinces, 
 or are raised by them in accordance with the special powers con- 
 ferred upon them by this Act,' shall form one consolidated 
 fund, to be appropriated for the public service of Canada. The 
 extent to which duties and revenues arising within the limits of 
 Ontario, and over which the legislature of the old province of 
 Canada possessed the power of appropriation before the passing 
 of the Act, have been transferred to the Dominion by this 
 clause, can only be ascertained by reference to the two excep- 
 tions which it makes in favor of the new provincial legislatures.
 
 528 THE B. N. A. ACT SEC. 126. 
 
 ""Tl 
 the pre 
 
 The second of these exceptions has really no hearing on 
 present case, because it comprises nothing heyond the 
 revenues which provincial legislatures are empowered to raise by 
 roeans of direct taxation for provincial purposes in terms of sec- 
 tion 9 $T[2j) The first of them, irhich appears to comprehend th> 
 whole sources of revenue reserved t<> the provinces by section tOO) is? ^ 
 of material consequence." After quoting this section at length, 
 the judgment proceeds : " In connection with this clause it 
 may be observed that by section 117 it is declared that the pro- 
 vinces shall retain their respective public property not otherwise 
 disposed of in the Act, subject to the right of Canada to assume 
 any lands or public property required for fortifications or for the 
 defence of the country. A different form of expression is used 
 to define the subject matter of the first exception, and the pro- 
 perty which is directly appropriated to the provinces ; but it 
 hardly admits of doubt that the interests in land, mi nets, mini 'nils, 
 nd royalties, irhich by section 109 are declared to Mont/ to the pro- 
 vinces, include, if they are not identical with, the ' duties and 
 revenues ' first excepted in section(l02J) 
 
 " The enactments of section 109 are, in the opinion of their 
 Lordships, sufficient to give to each province, subject to the 
 administration and control of its own legislature, the entire bene- 
 ficial interest of the Crown in all lands ivitJdn its boundaries, which 
 at the time of the Union were vested in the Crown, with the ex- 
 ception of such lands as the Dominion acquired right to under 
 section 108, or might assume for the purposes specified in section 
 117. Its legal effect is to exclude from the 'duties and reve- 
 nues ' appropriated to the Dominion all the ordinary territorial 
 revenues of the Crown arising within the provinces. That con- 
 struction of the statute was accepted by this Board in deciding 
 Attorney-General of Ontario v. Mercer, where the controversy 
 related to land granted in fee simple to a subject before 1867, 
 which became escheat to the Crown in 1871. The Lord Chan- 
 cellor (Earl Selborne) in delivering judgment in that case said : 
 ' It was not disputed in the argument for the Dominion at the 
 bar, that all territorial revenues arising within each province 
 from lands (in which term must be comprehended all estates in 
 land) which at the time of the Union belonged to the Crown, 
 were reserved to the respective provinces by section 109; and it
 
 THE B. X. A. ACT SEC. 126. 529 
 
 was admitted that no distinction could, in that respect, be made 
 between lands then ungranted, and lands which had previously 
 reverted to the Crown by escheat. But it was insisted that a 
 line was drawn at the date of the Union, and that the words were 
 not sufficient to reserve any lauds afterwards escheated which at 
 the time of the Union were in private hands, and did not then 
 belong to the Crown.' Their Lordships indicated an opinion to 
 the effect that the escheat would not, in the special circumstances 
 of that case, have passed to the province as ' lands ' ; but they 
 lield that it fell within the class of rights reserved to the prov- 
 ince as 'royalties' by section 109. 
 
 " . . . The ceded territory was at the time of the Union 
 land vested in the Crown, subject to 'an interest other than that 
 of the province in the same,' within the meaning of section 109 ; 
 and must now belong to Ontario in terms of that clause, unless 
 its rights have been taken away by some provision of the Act 
 of 1867 other than those already noticed." 
 
 Any controlling effect which might be claimed in respect 
 of " lands reserved for the Indians " by reason of the legis- 
 lative power of the Dominion in respect thereof is 
 negatived in the passage already quoted (I). 
 
 In Attorney-General of Ontario v. Mercer (771) the 
 meaning of the word " royalties " was discussed and without 
 deciding whether it does or does not cover royal rights 
 other than those connected with lands, mines, and minerals, 
 it was held that it does cover all royal rights jura regalia 
 omnia ad fiscum spectantia connected with those three 
 subjects, and escheats within a province were adjudged to 
 belong to such province and not to the Dominion. 
 
 In the case of The Liquidators of the Maritime Bank v. 
 The Receiver-General of New Brunswick (?i) it has just 
 been held that the prerogative right of the Crown to claim 
 priority for debts due the Crown over the claims of private 
 
 (I) Ante, p. 525. 
 
 (m) 8 App. Gas. 767. See Church v. Blake, 2 Q. L. B. 236. 
 
 () 8 Times L. R. 677. 
 
 CAN. Cox. 34
 
 530 THE B. N. A. ACT SEC. 126. 
 
 creditors, is a prerogative right vested in the Lieutenant- 
 Governor of a province so far as relates to debts due the 
 Crown as representing such province a decision which 
 would appear to show that it was not necessary to rely 
 solely upon the word " royalties " as vesting in the provinces 
 (or in the Lieutenant-Governors as chief executive officers 
 thereof) the Crown's prerogative rights in connection with 
 lands escheated for want of heirs. See, however, Attorney- 
 General of British Columbia v. Attorney-General of Can- 
 ada (o), in which the Committee held that a conveyance by 
 the province to the Dominion of "public lands" was, in sub- 
 stance, an assignment merely of its right to appropriate the 
 territorial revenues arising therefrom, and could not with- 
 out express evidence of intention in that behalf, be con- 
 strued as a transfer of the precious metals in, upon and 
 under such lands, the revenues derivable therefrom not. 
 being incident to the land (as are mines of baser metal),. 
 but arising from the prerogative rights of the Crown, 
 which, under the word " royalties," passed to the provinces 
 by force of section 109. 
 
 In reference to those sections of this group VIII. which 
 deal with the financial arrangements agreed upon by the 
 provinces as the basis of the federal Union, we deem it 
 unnecessary to say anything here. " Better terms " have 
 been sought and granted in the case of a number of the 
 provinces (p). The whole policy of provincial " subsidies " 
 has been the subject of much adverse comment, but, in any 
 case, these financial arrangements are hardly matter for 
 discussion in a work of this kind. The same may be said 
 of the " interprovincial free trade," section (121). 
 
 (ii) "Public Harbours." It was held in Holman v. 
 Green (q) by the Supreme Court of Canada that this in- 
 
 (o) 14 App. Cas. 295. See post, Part IV, Chap. XV. 
 Ip) See a short resumd of them in Houston, " Const. Doc. of Canada," 
 p, 237. 
 
 (q) 6 S. 0. B. 707.
 
 THE B. X. A. ACT SEC. 126. 531 
 
 eludes all harbours, together with the bed and soil thereof, 
 which the public have the right to use, and is not limited 
 to such as at the date of the Union had been artificially 
 constructed or improved at the public expense; and where 
 a grant of the foreshore of a natural harbour used as such 
 by the public was made by a provincial government, the 
 grant was held invalid. 
 
 (iii) "Rivers and Lake Improvements." " Rivers" is a 
 mistake. River improvements are clearly intended. See 
 per Gwynne, J., in Reg. v. Robertson (r). In the Quebec 
 Resolutions it appears as "River and Lake Improvements." 
 
 (iv) "Railways, etc." In Western Counties Ry. Co. v. 
 Windsor & Annapolis Ry. Co. (s) it was held by the Judicial 
 Committee of the Privy Council that the Dominion govern- 
 ment acquired provincial railways i.e., government rail- 
 ways subject to all claims against them, or, in other words, 
 for no larger interest than the province had in them. It was 
 a qucere with the Committee whether the parliament of 
 Canada could afterwards legislate in derogation of claims 
 against, or obligations incurred by, the province in respect 
 of such railways. 
 
 (v) " Ordnance property" See Kennedy v. Toronto (). 
 
 (vi) "Lumber Dues in New Brunswick." The right to 
 levy these duties was surrendered in 1871, upon certain 
 terms as set out in 36 Vic. c. 41 (Dom.). 
 
 (vii) "Exemption of public lands, etc." See Church v. 
 Fenton (u), and Reg. v. Wellington (v). In Attorney- 
 General of Canada v. Montreal (w) it was held by the 
 Supreme Court of Canada that lands under lease to the Do- 
 
 fr) 6 S. C. R. at pp. 98-99. 
 
 (s) 1 App. Cas. 178. 
 
 (0 12 O. R. 201. 
 
 () 5 S. C. R. 239; see notes to sec. 91, s-s. 24. 
 
 (v) 17 O. A. R. 421 ; sub nom. Quirt v. Reg. 19 S. C. R. 510. 
 
 (jc) 13 S. C. R. 352.
 
 532 THE B. N. A. ACT SECS. 127, 128. 
 
 minion government for military purposes cannot be taxed 
 for municipal purposes ; on the other hand, in Attorney- 
 General of Canada v. Toronto (x) the Dominion govern- 
 ment was held liable to pay water rates as being the price 
 charged for a commodity furnished. 
 
 IX. MISCELLANEOUS PROVISIONS. 
 General. 
 
 &&00&. 127- If any person being at the pass- 
 vinces becom- ing of this Act a Member of the Leedsla- 
 
 ing Senators. . 
 
 tive Council 01 Canada, Nova Scotia, or 
 New Brunswick, to whom a place in the 
 Senate is offered, does not within thirty 
 days thereafter, by writing under his hand 
 addressed to the Governor-General of the 
 Province of Canada or to the Lieutenant - 
 Governor of Nova Scotia or New Bruns- 
 wick (as the case may be), accept the 
 same, he shall be deemed to have declined 
 the same; and any person who, being at 
 the passing of this Act a member of the 
 Legislative Council of Nova Scotia or 
 New Brunswick, accepts a place in the 
 Senate shall thereby vacate his seat in 
 such Legislative Council. 
 
 ? 6 " 128- Every member of the Senate or 
 House of Commons of Canada shall be- 
 fore taking his seat therein take and sub- 
 scribe before the Governor- General or 
 some person authorized by him, and every 
 member of a Legislative Council or Legis- 
 
 (x) 18 O. A. E. 622.
 
 THE B. N. A. ACT SEC. 128. 533 
 
 lative Assembly of any Province shall 
 before taking his seat therein take and 
 subscribe before the Lieutenant-Governor 
 of the Province or some person authorized 
 by him, the oath of allegiance contained 
 in the fifth Schedule to this Act ; and 
 every member of the Senate of Canada 
 and every member of the Legislative 
 Council of Quebec shall also, before taking 
 his seat therein, take and subscribe be- 
 fore the Governor-General, or some person 
 authorized by him, the declaration of 
 qualification contained in the same 
 Schedule. 
 
 THE FIFTH SCHEDULE. 
 
 OATH OF ALLEGIANCE. 
 
 I, A. B. do swear, That I will be faithful and bear true Alle- 
 giance to Her Majesty Queen Victoria. 
 
 Xote. The name of the King or Queen of the United Kingdom 
 of Great Britain ami Ireland fur the time being is to be substituted 
 from time to time, with proper terms of reference thereto. 
 
 DECLARATION OF QUALIFICATION. 
 
 I, A. B. do declare and testify, That I am by law duly quali- 
 fied to be appointed a member of the Senate of Canada [or as the 
 case may be] , and that I am legally or equitably seised as of free- 
 hold for my own use and benefit of lands and tenements held in 
 free and common socage [or seised or possessed for my own use 
 and benefit of lands or tenements held in franc-alleu or in roture
 
 534 THE B. N. A. ACT SEC. 129. 
 
 (or as the case may be),] in the province of Nova Scotia [or as tin- 
 case may be] of the value of four thousand dollars over and above 
 all rents, dues, debts, mortgages, charges, and incumbrances due or 
 payable out of or charged on or affecting the same, and that I have 
 not collusively or colourably obtained a title to or become possessed 
 of the said lands and tenements or any part thereof for ihe pur- 
 pose of enabling me to become a member of the Senate of Canada 
 (or 05 ihe case may be], and that my real and personal property 
 are together worth four thousand dollars over and above my 
 debts and liabilities. 
 
 ing 06 129- Except as otherwise provided 
 offlSrJ&c rts ' by this Act, all laws in force in Canada, 
 Nova Scotia, or New Brunswick at the 
 Union, and all Courts of civil and criminal 
 jurisdiction, and all legal commissions, 
 powers and authorities, and all officers, 
 judicial, administrative and ministerial, 
 existing therein at the Union, shall con- 
 tinue in Ontario, Quebec, Nova Scotia, 
 and New Brunswick respectively, as if 
 the Union had not been made; subject 
 nevertheless (except with respect to such 
 as are enacted by or exist under Acts of 
 the Parliament of Great Britain or of the 
 Parliament of the United Kingdom of 
 Great Britain and Ireland), to be repealed, 
 abolished, or altered by the Parliament of 
 Canada, or by the Legislature of the re- 
 spective Province, according to the 
 authority of the Parliament or of that 
 Legislature under this Act. 
 
 We have already had such frequent occasion to refer to 
 tliis section (y), that we need here only sum up what has 
 
 (y) See particularly p. 49, et seq, and p. 200.
 
 THE B. X. A. ACT SEC. 129. 535 
 
 been already said and refer to some of the more important 
 decisions which deal with the question of its construction 
 and effect. 
 
 The legislative bodies which were, after the Union, to 
 make law for the Dominion and for the respective pro- 
 vinces have their " constitution " and powers provided for 
 in other sections of the Act. The different spheres of 
 authority are defined. But, apart from these necessary 
 provisions, account had to be taken of the body of laws 
 and legal institutions the executive staff, administrative 
 and judicial existing in the provinces at the Union, and 
 this is. done by the section in question. 
 
 The whole body of laws common law and statutory 
 enactments was continued, but with a clear line of divi- 
 sion drawn through it by this section. Any alteration of 
 that law, any Act in amendment of it, can now be enacted 
 only by that legislature which, if the law which it is 
 desired to repeal or alter were non-existent, could now 
 enact it. As an example of the application of this rule to 
 provisions of the common law in force in any province at 
 the date of Confederation we may refer to the decision of 
 the Supreme Court of Canada in Queddy River Boom 
 Co. v. Davidson (z), in which a provincial Act was held 
 inoperative to authorize the obstruction of a navigable 
 river. The cases in reference to the amendment or repeal 
 of provincial Acts of date prior to 1867 are numerous. 
 We have from time to time referred to many of them. 
 Dobie v. Temporalities Board (a), is the leading case. 
 Upon the secularization of the " Clergy Reserves," a 
 statutory commutation of the claims of the then Presby- 
 terian clergy upon the revenues derivable from these 
 " Reserves " was effected, and by an Act of the province of 
 Canada a Board was incorporated for the management of 
 the fund so created. After Confederation, in contempla- 
 
 (z) 10 S. C. E. 222 ; see ante, p. 383. 
 {a) 7 App. Cas. 136 ; see ante, p. 319.
 
 536 THE B. N. A. ACT SEC. 129. 
 
 tion of the union of the various Presbyterian bodies 
 throughout Canada, the Quebec legislature passed an Act 
 (38 Vic. c. 64), providing for the future disposal of this 
 fund in the event of the union taking place. Somewhat 
 similar legislation had taken place in Ontario (6). In the 
 view of the Committee, the corporation and the corporate 
 funds were not capable of division according to the limits 
 of provincial authority, and the Quebec Act was therefore 
 held invalid : 
 
 " The Act of the parliament of the province of Canada was, 
 after the passing of the B. N. A. Act, 1867, continued in fore 6 
 within the provinces of Ontario and Quebec by virtue of section 
 129 of the latter statute. . . . The powers conferred by 
 this section upon the provincial legislatures of Ontario and 
 Quebec to repeal and alter the statutes of the old parliament of 
 the province of Canada, are made precisely co-extensive with 
 the powers of direct legislation with which these bodies are in- 
 vested by the other clauses of the Act of 1867. In order, 
 therefore, to ascertain how far 'the provincial legislature of 
 Quebec had power to alter and amend the Act of 1858, incor- 
 porating the Board for the management of the Temporalities 
 Fund, it becomes necessary to revert to sections 91 and 92 of the 
 B. N. A. Act, which enumerate and define the various matters 
 which are within the exclusive legislative authority of the par- 
 liament of Canada, as well as those in relation to which the 
 legislatures of the respective provinces have the exclusive right 
 of making laws. If it could be established 'that, in the absence 
 of all previous legislation on the r ' subject, the legislature of Que- 
 /bec would have been authorized by section 92 to pass an Act 
 /identical in its terms with the Act of 1858, then it would follow 
 that that Act has been validly amended by the 38 Vic. c. 64. 
 On the other hand, if the legislature of Quebec has not derived 
 such power of enactment from section 92, the necessary infer- 
 ence is that the legislative authority required in terms of section 
 129 to sustain its right to repeal or alter an old law of the par- 
 liament of the province of Canada is in this case wanting." 
 
 (b) See Cowan v. Wright, 23 Grant 616.
 
 THE B. X. A. ACT SEC. 130. 537 
 
 Upon an examination of the Act of 1858, the Committee 
 was of opinion that it could not have been validly 
 passed by the Quebec legislature and could not therefore 
 after the Union be altered or amended by provincial legis- 
 lation (c). 
 
 In reference to the continuation of existing courts we 
 need add nothing to what was said in chapter XL (d), 
 beyond drawing attention to the fact that the determina- 
 tion of the line between " the authority of the parliament 
 or of that legislature under this Act " in relation to courts* 
 their organization and procedure, is one of the most difficult 
 tasks set by the B. X. A. Act. 
 
 In reference to the executive staff, this section should 
 be read in connection with sections 130 and 131, and (as to 
 Ontario and Quebec) 134 and 135. We need here do no. 
 more than refer to previous pages on which the question is- 
 discussed (e). 
 
 130. Until the Parliament of Canada r *Ssto 
 otherwise provides, all officers of the Cj 
 several Provinces having duties to dis- 
 charge in relation to matters other than 
 those coming within the classes of sub- 
 jects by this Act assigned exclusively to 
 the Legislatures of the Provinces shall 
 be officers of Canada, and shall continue 
 to discharge the duties of their respective 
 offices under the same liabilities, respon- 
 
 (c) See also Willett v. DeGrosbois (ante, p. 285) ; Noel v. Richmond 
 (ante, p. 362) ; Cooey v. Brome (ante, p. 361) ; Hart v. Mississquoi (ante, 
 p. 361) ; Munn v. McCannell, 2 P. E. R. 148 ; Keefe v. McLennan, 2 Russ. 
 & Ches. 5 ; 2 Cart. 400 ; Reed v. Mousseau, 8 S. (J. R. 408 ; Peak v. Shields, 
 6 O. A. R. 639. Note also s. 137, post. 
 
 (d) Ante, p. 227, et seq. See also notes to s. 91, s-s. 27, s. 92, s-s. 14,. 
 and s. 101. 
 
 (e) Ante, p. 49, et seq.; Reg. v. Reno, 4 P. R. (Ont.) 294.
 
 538 THE B. N. A. ACT SEC. 131, 132. 
 
 sibilities, and penalties as if the Union 
 had not been made. 
 
 In Regina v. Horner (/), Mr. Justice Ramsay, delivering 
 the judgment of the Court of Queen's Bench of Quebec, 
 says : 
 
 " In saying they are federal officers, the statute must be 
 understood quoad their federal duties, for the parliament of 
 Canada could not legislate for their local duties." 
 
 or p new n offlc e er 8 131. Until the Parliament of Canada 
 otherwise provides, the Governor- General 
 in Council may from time to time appoint 
 such officers as the Governor- General in 
 Council deemsnecessary or proper for the 
 effectual execution of this Act. 
 
 Treaty obiiga- 132.' The Parliament and Govern- 
 ment of Canada shall have all powers 
 necessary or proper for performing the 
 obligations of Canada or of any Province 
 thereof, as part of the British Empire, 
 towards foreign countries, arising under 
 treaties between the Empire and such 
 foreign countries. 
 
 In Ex parte Worms, before Chief. Justice Dorion (z), it 
 was argued that the Imperial Extradition Act of 1870 
 could not apply to Canada, because of the express power 
 conveyed by this section. The Chief Justice however held 
 that the two provisions are in no way inconsistent, and 
 that, if they were, the Extradition Act, being an Imperial 
 Act of later date, must govern in all matters relating to the 
 extradition of fugitive criminals. The overruling legisla- 
 
 (/) 2 Steph. Dig. 450; 2 Cart. 317. See ante, p. 
 
 (z) 22 L. C. Jur. 109 ; 2 Cart. 315. See also In re Williams, 7 P. R. 
 <0nt.) 275.
 
 THE B. N. A. ACT SECS. 133, 134. 539 
 
 tion of the Imperial parliament prevents us from utilizing 
 the power conferred by this section. 
 
 While we may legislate in aid of British treaties affect- 
 ing us, we have as yet no power to make treaties with for- 
 eign countries (a). 
 
 133. Either the English or the L s d Sh sb 
 French language may be used by any la 
 person in the debates of the Houses of 
 the Parliament of Canada and of the 
 Houses of the Legislature of Quebec ; andn 
 both those languages shall be used in th4 1 
 respective Eecords and Journals of those 1 
 Houses; and either of those languages 1 
 may be used by any person or in any 
 pleading or process in or issuing from any 
 Court of Canada established under this 
 Act, and in or from all or any of the 
 Courts of Quebec. 
 
 The Acts of the Parliament of Canada 
 and of the Legislature of Quebec shall be 
 printed and published in both those 
 languages. 
 
 Ontario and Quebec. 
 
 134- Until the Legislature of Ontario ^Txecu^ve 4 
 or of Quebec otherwise provides, the Lieu- orSo an r a 
 tenant-Governors of Ontario and Quebec 
 may each appoint under the Great Seal 
 of the Province the following officers, to 
 hold office during pleasure, that is to say 
 the Attorney-General, the Secretary 
 
 (a) See Todd, " Parl. Govt. Brit. Col.," 192.
 
 540 THE B. N. A. ACT SEC. 135. 
 
 and Eegistrar of the Province, the Trea- 
 surer of the Province, the Commissioner 
 of Crown Lands, and the Commissioner 
 of Agriculture and Public Works, and in 
 the case of Quebec the Solicitor-General; 
 and may, by order of the Lieutenant- 
 Governor in Council, from time to time 
 prescribe the duties of those officers and 
 of the several departments over which 
 they shall preside, or to which they shall 
 belong, and of the officers and clerks 
 thereof ; and may also appoint other and 
 additional officers to hold office during 
 pleasure, and may from time to time pre- 
 scribe the duties of those officers, and of 
 the several departments over which they 
 shall preside or to which they shall be- 
 long, and of the officers and clerks 
 thereof. 
 
 135. Until the Legislature of Ontario 
 or Quebec otherwise provides, all rights^ 
 powers, duties, functions, responsibilities, 
 or authorities at the passing of this Act 
 vested in or imposed on the Attorney- 
 General, Solicitor-General, Secretary and 
 Eegistrar of the Province of Canada, 
 Minister of Finance, Commissioner of 
 Crown Lands, Commissioner of Public 
 Works, and Minister of Agriculture and 
 Eeceiver-General, by any law, statute or 
 ordinance of Upper Canada, Lower Can- 
 ada, or Canada, and not repugnant to
 
 THE B. N. A. ACT SECS. 136, 137. 541 
 
 this Act, shall be vested in or imposed on 
 any officer to be appointed by the Lieu- 
 tenant- Governor for the discharge of the 
 same or any of them; and the Commis- 
 sioner of Agriculture and Public Works 
 shall perform the duties and functions of 
 the office of Minister of Agriculture at the 
 passing of this Act imposed by the law 
 of the Province of Canada, as well as 
 those of the Commissioner of Public 
 Works. 
 
 136- Until altered by the Lieutenant- Great Seal - 
 Governor in Council, the Great Seals of 
 Ontario and Quebec respectively shall be 
 the same/ or of the same design, as those 
 used in the Provinces of Upper Canada 
 and Lower Canada respectively before 
 their Union as the Province of Canada. 
 
 137. The words " and from thence to 
 the end of the then next ensuing Session 
 of the Legislature," or words to the same 
 effect, used in any temporary Act of the 
 Province of Canada not expired before 
 the Union, shall be construed to extend 
 and apply to the next Session of the 
 Parliament of Canada, if the subject 
 matter of the Act is within the powers of 
 the same, as denned by this Act, or to 
 the next Sessions of the Legislatures of 
 Ontario and Quebec respectively, if the 
 subject matter of the Act is within the
 
 542 THE B. N. A. ACT SEC. 138-140. 
 
 powers of the same as defined by this 
 Act. 
 
 As to errors 
 iu names. 
 
 138. From and after the Union, the 
 use of the words "Upper Canada" 
 instead of " Ontario," or " Lower Can- 
 ada " instead of " Quebec," in any deed, 
 writ, process, pleading, document, matter, 
 or thing, shall not invalidate the same. 
 
 139. Any Proclamation under the 
 un?on to com- Great Seal of the Province of Canada 
 
 mence after . . n . 
 
 union. issued before the Union to take effect at 
 a time which is subsequent to the Union, 
 whether relating to that Province, or to 
 Upper Canada, or to Lower Canada, and 
 the several matters and things therein 
 proclaimed shall be and continue of like 
 force and effect as if the Union had not 
 been made. 
 
 prociama- 01 140. Any Proclamation which is au- 
 unk>n. tei thorized by any Act of the Legislature of 
 the Province of Canada to be issued under 
 the Great Seal of the Province of Canada, 
 whether relating to that Province, or to 
 Upper Canada, or to Lower Canada, and 
 which is now issued before the Union, 
 may be issued by the Lieutenant-Governor 
 of Ontario, or of Quebec, as its subject 
 matter requires, under the Great Seal 
 thereof ; and from and after the issue of 
 such Proclamation the same and the 
 several matters and things therein pro-
 
 THE B. N. A. ACT SECS. 141-143. 543 
 
 claimed shall be and continue of the like 
 force and effect in Ontario or Quebec as if 
 the Union had not been made. 
 
 141. The Penitentiary of the Pro- Penitentiary.. 
 vince of Canada shall, until the Parlia- 
 ment of Canada otherwise provides, be 
 and continue the Penitentiary of Ontario 
 and Quebec. 
 
 142. The division and adjustment of 
 the debts, credits, liabilities, properties de 
 and assets of Upper Canada and Lower 
 Canada shall be referred to the arbitra- 
 ment of three arbitrators, one chosen by 
 the Government of Ontario, one by the 
 Government of Quebec, and one by the 
 Government of Canada; and the selection 
 of the arbitrators shall not be made until 
 the Parliament of Canada and the Legis- 
 latures of Ontario and Quebec have met ; 
 and the arbitrator chosen by the Govern- 
 ment of Canada shall not be a resident 
 either in Ontario or in Quebec. 
 
 (i) See In re Arbitration between Ontario and Quebec (&) 
 
 143- The Governor-General in Cotm- ? e Srd 8 nof 
 cil may from time to time order that such 
 and so many of the records, books, and 
 documents of the Province of Canada as 
 he thinks fit shall be appropriated and 
 delivered either to Ontario or to Quebec, 
 and the same shall thenceforth be the 
 
 (b) 6 L. J. N. S. 212 ; 4 Cart. 712.
 
 THE B. N. A. ACT SECS. 144, 145. 
 
 property of that Province ; and any copy 
 thereof or extract therefrom, duly certi- 
 fied by the officer having charge of the 
 original thereof shall be admitted as 
 evidence. 
 
 :ofto s wnshf p n s 144- The Lieutenant-Governor of 
 )ec ' Quebec may from time to time, by Pro- 
 clamation under the Great Seal of the 
 Province, to take effect from a day to be 
 appointed therein, constitute townships 
 in those parts of the Province of Quebec 
 in which townships are not then already 
 constituted, and fix the metes and bounds 
 thereof. 
 
 X. INTEECOLONIAL EAILWAY. 
 
 mmmund 145- Inasmuch as the Provinces of 
 Canada, Nova Scotia, and New Brims- 
 
 make railway . .. . . . -. 1 . 
 
 herein de- wick have loined in a declaration tnat 
 
 scribed. * 
 
 the construction of the Intercolonial Rail- 
 way is essential to the consolidation of 
 the Union of British North America, and 
 to the assent thereto of Nova Scotia and 
 New Brunswick, and have consequently 
 agreed that provision should be 'made for 
 its immediate construction by the Gov- 
 ernment of Canada : Therefore, in order 
 to give effect to that agreement, it shall 
 be the duty of the Government and Par- 
 liament of Canada to provide for the com- 
 mencement within six months after the
 
 THE B. N. A. ACT SEC. 146. 545 
 
 Union, of a railway connecting the Eiver 
 St. Lawrence with City of Halifax in 
 Nova Scotia, and for the construction 
 thereof without intermission, and the 
 completion thereof with all practicable 
 speed. 
 
 XI. ADMISSION OF OTHEE COLONIES (i). 
 
 146- It shall be lawful for the Queen, 
 by and with the advice of Her Majesty's 
 Most Honourable Privy Council, on Ad- 
 dresses from the Houses of Parliament of 
 Canada, and from the Houses of the 
 respective Legislatures of the Colonies 
 or Provinces of Newfoundland, Prince 
 Edward Island, and British Columbia, to 
 admit those Colonies or Provinces, or any 
 of them, into the Union, and on Address 
 from the Houses of the Parliament in 
 Canada to admit Kupert's Land and the 
 North-western Territory, or either of 
 them, into the Union, on such terms and 
 conditions in each case as are in the Ad- 
 dresses expressed and as the Queen thinks 
 fit to approve, subject to the provisions 
 of this Act; and the provisions of any 
 Order in Council in that behalf shall 
 have effect as if they had been enacted by 
 the Parliament of the United Kingdom of 
 Great Britain and Ireland. 
 
 (i) See Part IV, post. 
 CAN. CON. 35
 
 546 
 
 THE B. X. A. ACT SEC. 147. 
 
 As to repre- 
 sentation of 
 Newfound- 
 laud and 
 Prince Ed- 
 ward Island 
 in Senate. 
 
 147- I 11 case of the admission of 
 Newfoundland and Prince Edward Island, 
 or either of them, each shall be entitled 
 to a representation in the Senate of Can- 
 ada of four members, and (notwithstand- 
 ing anything in this Act) in case of the 
 admission of Newfoundland the normal 
 number of Senators shall be seventy-six 
 and their maximum number shall be 
 eighty-two ; but Prince Edward Island 
 when admitted shall be deemed to be 
 comprised in the third of the three 
 divisions into which Canada is, in rela- 
 tion to the constitution of the Senate, 
 divided by this Act, and accordingly, after 
 the admission of Prince Edward Island, 
 whether Newfoundland is admitted or 
 not, the representation of Nova Scotia 
 and New Brunswick in the Senate shall, 
 as vacancies occur, be reduced from 
 twelve to ten members respectively, and 
 the representation of each of those Pro- 
 vinces shall not be increased at any time 
 beyond ten, except under the provisions of 
 this Act for the appointment of three or 
 six additional Senators under the direc- 
 tion of the Queen.
 
 PART IV. 
 
 SUBSEQUENT GROWTH.
 
 CHAPTER XIII. 
 
 THE NORTH-WEST TERRITORIES. 
 
 The future extension of the Dominion of Canada, so as 
 ultimately to embrace the whole of British North America 
 from ocean to ocean, was anticipated, as appears by sections 
 146 and 147 of the B. N. A. Act, 1867. -We need here draw 
 attention to the former section only (a), by which pro vision 
 was made for the admission of the other British territories, 
 organized and unorganized. The important point to be 
 noted is that by virtue of the last clause of this section, the 
 various orders in council subsequently promulgated effect- 
 ing the admission to* the Union of Rupert's Land and the 
 North-western Territory, and of British Columbia and 
 Prince Edward Island are, in effect, Imperial Acts, and are, 
 to those new portions of the Dominion, their constitutional 
 charters, amended, however, in certain particulars by subse- 
 quent Imperial legislation. 
 
 The Dominion government lost no time in setting to 
 work to secure control of the vast territories lying between 
 Ontario and British Columbia. At the very first session of 
 the parliament of Canada, an address (6) was passed by both 
 Houses representing the expediency, both from a Canadian 
 and an Imperial point of view, of an early extension of the 
 Dominion to the shores of the Pacific. This address pointed 
 out the necessity for a "stable government" and the estab- 
 
 (a) See ante, p. 545. 
 
 (b) See Dom. Stat. 1872, p. Ixiii., et seq.
 
 550 THE CANADIAN CONSTITUTION. 
 
 lishment of institutions analogous to those of the older pro- 
 vinces, in order to the development of the agricultural, 
 mineral, and commercial resources of the Great Lone Land, 
 and prayed that Her Majesty might be pleased (pursuant 
 to section 146 of the B. N. A. Act) " to unite Rupert's Land 
 and the North- Western Territory with this Dominion, and 
 to grant to the parliament of Canada authority to legislate 
 for their future welfare and good government." 
 
 That part of these territories (c) known as Rupert's Land 
 had been under the control of the Hudson's Bay Company 
 ever since, in 1670, King Charles II. granted his charter to 
 those "adventurers trading into Hudson's Bay," and as lords- 
 proprietors they had full right of government and adminis- 
 tration therein subject to the sovereignty of England. The 
 boundaries of Rupert's Land were never accurately deter- 
 mined. Speaking roughly, the country known by that 
 name comprised the territory watered by streams flowing 
 into Hudson's Bay; but the company had extended their 
 operations and assumed jurisdiction (d) over other parts of 
 the North-Western Territory. We note this distinction 
 between the North-Western Territory proper and Rupert's 
 Land, because, as we shall see, the authority of the Domin- 
 ion parliament to legislate for these two portions respect- 
 ively of this great country flowed, in the first instance, from 
 different Imperial Acts. 
 
 The existence of the Hudson Bay Company's charter 
 rendered it necessary, in the view of the home government, 
 that terms should first be settled with that company for a- 
 surrender of "all the rights of government" and other 
 rights, privileges, etc., in Rupert's Land enjoyed by the 
 company under their charter, other than their trading and 
 commercial privileges. To this end, the Rupert's Land Act, 
 
 (c) See a very interesting article in Western Law Times, Vol. L, June, 
 1890, which contains in brief an account of the early organization of these 
 territories under the H. B. Co. 
 
 (d) See post.
 
 THE NORTH-WEST TERRITORIES. 551 
 
 4* 
 
 1868, was passed by the Imperial parliament, empowering 
 Her Majesty to accept such surrender on terms to be agreed 
 upon " subject to the approval of Her Majesty in council 
 of the terms and conditions to be proposed by the Domin- 
 ion parliament for the admission of Rupert's Land and 
 embodied in an address." The 5th section of this Act pro- 
 vides : 
 
 " 5. It shall be competent to Her Majesty by any such order 
 or orders in council as aforesaid on address from the Houses of 
 the parliament of Canada to declare that Rupert's Land shall 
 from a date to be therein mentioned, be admitted into and be- 
 come part of the Dominion of Canada ; and thereupon it shall be 
 lawful for the parliament of Canada from the date aforesaid to 
 make, ordain, and establish within the land and territory so ad- 
 mitted as aforesaid all such laws, institutions, and ordinances, 
 and to constitute such courts and officers as may be necessary 
 for the peace, order and good government of Her Majesty's sub- 
 jects and others therein ; provided that until otherwise enacted 
 by the said parliament of Canada all the powers, authorities and 
 jurisdiction of the several courts of justice now established in 
 Rupert's Land and of the several officers thereof and of all 
 magistrates and justices now acting within the said limits shall 
 continue in full force and effect therein." 
 
 This Act, it will be noticed, is confined to Rupert's Land, 
 but, under the terms agreed upon by the Hudson Bay Com- 
 pany and the Canadian delegates, the company surrendered 
 all their rights of government and other rights, privileges, 
 etc., etc., not only in Rupert's Land but also in any other 
 part of British North America (other than Canada and 
 British Columbia) and all lands and territories therein, save 
 some 50,000 acres reserved to them by the agreement. We 
 need not refer further to the terms of surrender as embodied 
 in the Imperial order in council finally passed, because those 
 terms were simply the price paid by the Dominion for the 
 surrender, and do not in any way touch our subject. The 
 order in council 23rd June, 1870 which finally admitted 
 Rupert's Land and the Xorth-Westem Territory to the
 
 552 THE CANADIAN CONSTITUTION. 
 
 Union provided that from and after the 15th day of Ju\y, 
 1870, those vast areas should form part of Canada, and that 
 as to the North- Western Territory "the parliament of 
 Canada shall from the day aforesaid have full power and 
 authority to legislate for the future welfare and good gov- 
 ernment " thereof ; but it made no further provision as to 
 legislation for Rupert's Land, because that was provided for 
 by the section of the Rupert's Land Act, 1868, which we 
 have already quoted. As to the North- Western Territory 
 proper, therefore, the legislative power was conferred by 
 the order in council operating as an Imperial Act by virtue 
 of section 146 of the B. N. A. Act; while as to Rupert's Land 
 the legislative power was conferred by the Rupert's Land Act, 
 1868. Nothing, however, turns upon this distinction, for, as 
 we shall see, after the province of Manitoba was formed, 
 full legislative power was given to the parliament of Canada 
 over all territories not included within the boundaries of 
 any province, so that any possible distinction which might 
 have been urged as arising from the difference in the 
 phraseology of the two earlier enactments is entirely oblit- 
 erated. 
 
 Anticipating the admission of these territories, the 
 Dominion parliament in 1869 passed " An Act for the tem- 
 porary government of Rupert's Land and the North - 
 Western Territory, when united with Canada " (32-33 Vic. 
 c. 3), providing for the appointment of a Lieutenaiit-Gov- 
 emor to administer the government of these territories 
 under instructions from the Governor-General in Council 
 and that by Order in Council the Lieutenant-Governor 
 might be empowered (subject to such conditions and restric- 
 tions as might be imposed by such Order in Council), "to 
 make provision for the administration of justice therein, 
 and generally to make, ordain, and establish all such laws, 
 institutions, and ordinances as may be necessary for the 
 peace, order, and good government of Her Majesty's sub- 
 jects and others therein." The Lieutenant-Governor was to
 
 THE NORTH-WEST TERRITORIES. 553 
 
 be aided by a Council, not exceeding- fifteen, nor less than 
 seven persons, to be appointed by the Governor-General 
 in Council. The powers of this Council were to be from 
 time to time as defined by Order in Council, i.e., by the 
 Dominion government. By the 5th and 6th sections of 
 this Act it was provided : 
 
 "5. All the laws in force in Rupert's Land and the North- 
 Western Territory at the time of their admission to the Union 
 shall so far as they are consistent with "the British North 
 America Act, 1867," with the terms and conditions of such ad- 
 mission approved of by the Queen under the 146th section 
 thereof and with this Act remain in force until altered by the 
 parliament of Canada, or by the Lieutenant-Governor under the 
 authority of this Act. 
 
 "6. All public officers and functionaries holding office in 
 Rupert's Land and the North-Western Territory at the time of 
 their admission into the Union, excepting the public officer or 
 functionary at the head of the administration of affairs, shall 
 continue to be public officers and functionaries of the North- 
 W T est Territories with the same duties and powers as before, 
 until otherwise ordered by the Lieutenant-Governor under the 
 authority of this Act." 
 
 to which clauses we shall shortly have occasion again to 
 refer. 
 
 Again, in 1870 (the admission not having yet taken 
 place) the parliament of Canada passed " An Act to amend 
 and continue the Act 32-33 Vic. c. 3 ; and to establish and 
 provide for the government of the province of Manitoba " 
 33 Vic. c. 3. The provisions of this Act as to Manitoba 
 will be dealt with later. As to the remaining portions of 
 the territories about to become part of the Dominion, the 
 only amendment of the Act of the previous session was 
 in the provision that the Lieuteuant-Governor of Manitoba 
 should also be commissioned as Lieutenant-Governor of 
 the North-West Territories- as such remaining portions 
 were now to be called. With this amendment the Act of 
 1869 was continued to the end of the session of 1871.
 
 554 THE CANADIAN CONSTITUTION. 
 
 Confining our attention, then, to the North- West Terri- 
 tories ; when next the parliament of Canada met, these 
 territories were part of the Dominion, and much of the 
 legislation of that session applied to them equally with the 
 other parts of Canada. From that time to the present the 
 Dominion parliament has had the power to legislate for the 
 North-West Territories in reference to all matters within 
 the ken of a colonial legislature (e): and although large 
 powers of local self-government have been conceded to the 
 inhabitants of these Territories they are held at the will of 
 the parliament of Canada. To what extent that parliament 
 will interpose in reference to matters over which legislative 
 power has been conferred on the North- West assembly, 
 depends on "conventions" not capable of accurate definition. 
 No doubt before very long a new province or provinces 
 will be formed out of these territories. The position, 
 therefore, is so evidently temporary that we feel some diffi- 
 culty in deciding to what extent of detail we should go in 
 discussing the present position of the North-West Terri- 
 tories. What we write will in all probability be in a very 
 short time of historical interest merely. Present useful- 
 ness therefore must be our guide, leaving the future to 
 take care of itself. Because, however, cases may arise in 
 which the rights of litigants will depend on the law as it 
 stood at some particular time since 1870, we deem it advis- 
 able before discussing the Acts which are to-day the 
 constitutional charters of the North-West Territories, to 
 state shortly the changes which have been made from time 
 to time up to the present, in order that the proper sources 
 of legislation at any given period, and in relation to any 
 given matter, may be consulted. 
 
 On the 15th of July, 18-70, these Territories became part 
 of Canada. The Acts of the two previous sessions expiring 
 at the end of the session of 1871, a permanent Act was 
 passed (34 Vic. c. 16), containing the same provisions as had 
 
 (e) See chapter IX., ante.
 
 THE NORTH-WEST TERRITORIES. 555 
 
 been made by those Acts. We should note here the B. N. A. 
 Act, 1871 (34-35 Vic. c. 28), which will be printed in full 
 when we come to deal with Manitoba. So far as concerns 
 the North-West Territories, it merely validated the pre- 
 vious Canadian legislation (32-33 Vic. c. 3, and 33 Vic. c. 3), 
 and made the general provision above noted that "the par- 
 liament of Canada may from time to time make provision 
 for the administration, peace, order, and good govern- 
 ment (/) of any territory not for the time being included 
 in any territory." 
 
 Period from 15 July, 1870, to 1 November, 1873. 
 
 During this period, then, legislative authority over the 
 North- West Territories was exercised or exerciseable in 
 the order of efficacy 
 ^** (a) By the Imperial Parliament : 
 
 (b) By the Parliament of Canada : 
 
 (c) By the Lieutenant-Governor of Manitoba in relation 
 only to such matters as werKsrlesignated by order of the 
 Governor-General in Council. By 36 Vic. c. 5, the number 
 of the council of the North- West Territories was increased 
 to a maximum of 21, instead of 15, the minimum remaining 
 at 7. Nothing, however, was done toward the government, 
 by local authority, of the North-West Territories until 
 December, 1872, when Lieutenant-Governor Morris of Mani- 
 toba was commissioned to act as Lieutenant-Governor of 
 these Territories, with a council of eleven members to aid 
 him in the administration of affairs there. By Order in 
 Council of date 12th February, 1873, it was ordered: 
 
 " 1. That the Lieutenant-Governor of the North-West Terri- 
 tories, bij and with the advice of the said Council shall be, and he is 
 hereby authorized to mate provision for the administration of jus- 
 tice in the said territories, and generally to make and establish such 
 ordinances as may be necessary for the peace, order, and good 
 government of the said North-West Territories and of Her 
 
 f/J Sea Eiel v. Regina, 10 App. Cas. 675, fully notid, ante, p. 347.
 
 
 556 THE CANADIAN CONSTITUTION. 
 
 Majesty's subjects and others therein. Provided, first, that no 
 such ordinance shall deal with or affect any subjects which are 
 beyond the jurisdiction of a provincial legislature, under the 
 * British North America Act, 1867,' and provided, second, that 
 all such ordinances shall be made to come into force only after 
 they have been approved by the Governor-General in Council, 
 unless in case of urgency, and in that case the urgency shall be 
 stated on the face of the ordinance." 
 
 with further provision for the transmission of all ordi- 
 nances to the Governor-General, who should be at liberty 
 to disallow .any of them. at any tyaie within two years from 
 their passage. 
 
 Period from 1 November, 1873. to 7 October, 1876. 
 
 On the 1st of November, 1873, the Act 36 Vic. c. 34, 
 came into force. It provided probably to remove doubts 
 that the local legislation on the various subjects which 
 by Order in Council to that date had been committed 
 to the legislative ken of the Lieutenant-Governor and his 
 Council, should thereafter be passed by the Lieutenant- 
 Governor, by and with the advice and, consent of the 
 Council. In relation to all matters not so committed, 
 legislative power was by the Act conferred on the Gov- 
 ernor-General in Council. The legislative power of both 
 the Dominion cabinet and the Lieutenant-Governor in 
 Council each within its respective sphere might be ex- 
 ercised in the way of extending to the Territories general 
 Acts of the parliament of Canada with such modification 
 as might be thought desirable, or in the way of repealing 
 such general Acts so far as they might apply to the terri- 
 tories ; with this proviso, however, that no law to be 
 passed by either of these bodies should (1) be inconsistent 
 with any Act of the parliament of Canada of express ap- 
 plication to the Territories ; (2) alter the punishment pro- 
 vided for any crime or the legal description or character of 
 the crime itself ; (3) impose any tax or any duty of 
 customs or excise or any penalty exceeding one hundred
 
 THE NORTH-WEST TERRITORIES. 55 T 
 
 dollars ; or (4) appropriate any monies or property of the 
 Dominion without the authority of the Dominion parlia- 
 ment. All local legislation was to be subject to disallow- 
 ance within two years after its passage. 
 
 During this period, therefore, legislative power was 
 exercisable in the order of its efficacy 
 
 (a) By the Imperial Parliament : 
 
 (b) By the Parliament of Canada : 
 
 (c) By the Governor-General in Council in relation to 
 all matters not committed to the Lieutenant-Governor and 
 his Council ; which in reality placed the entire legislative 
 power (subject to the foregoing) in the hands of the 
 Dominion government, if it had chosen to exercise it, for 
 the powers of the Lieutenant-Governor were themselves 
 defined by the Order in Council to which we have 
 referred, and could of course be at any time curtailed : 
 
 (d) By the Lieutenant-Governor in Council in relation 
 to all matters from time to time committed to them for 
 legislative action. 
 
 During this period, however, no further Orders in 
 Council were passed relative to the powers of the Lieuten- 
 ant-Governor in Council, nor was the legislative power of 
 the Governor-General in Council exercised, so that this and 
 the earlier period are practically one. Dominion legisla- 
 tion of a general character passed during this period would 
 prima facie apply to the North- West Territories, and in 
 addition we may note 36 Vic. c. 35, which made special 
 provision for the administration of justice therein. 
 
 Period from 7 October, 1876, to 28 April, 1877. 
 
 In 1875 was passed " The North- West Territories Act, 
 1875," which came into force, however, only on the 7th 
 of October, 1876. It amended and consolidated previous 
 legislation, and under it the first resident Lieutenant-Gov- 
 ernor was appointed, and the first legislative session took
 
 558 THE CANADIAN CONSTITUTION. 
 
 place in the Territories. The Council was reduced in num- 
 ber so far as appointed members were concerned to five 
 persons, with powers as defined in the Act, and with such 
 further powers not inconsistent therewith as might from 
 time to time be conferred by Order in Council. As, how- 
 ever, the section of the Act defining the legislative powers 
 of the Lieutenant-Govemor in Council (g), was in force for 
 only some six months, and as a reference to the ordinances 
 passed at the session held while it was so in force discloses 
 that nothing was done in the way of legislation which was 
 not fully justified by the powers conferred by the Act, we 
 have not thought it necessary to quote the section. By 
 the 6th section of this Act all laws and ordinances then in 
 force in the Territories were to continue until altered or re- 
 pealed by competent authority. The Governor-General in 
 "Council was empowered (h) to apply any Act, or part of 
 any Act of the Dominion parliament to the Territories 
 generally or to any part thereof. The Lieutenant-Governor 
 was empowered to establish, as population increased, elec- 
 toral districts, and it was provided that so soon as the 
 number of elected members of the Council should reach 
 21, the Council should cease to exist and a Legislative 
 Assembly take its place. In the electoral djstrio.fo thp. 
 Lieutenant-Governor in Council might impose direct tajj^. 
 ation and license fees for raising a revenue for the local and 
 municipal purposes of each jJistrictT Power was also given 
 tn establish municipalities in the electoral districts, with 
 powers of municipal taxation to be prescribed by ordinance 
 of the Lieutenant-Governor in Council. In reference to 
 education, it was provided that any legislation upon the 
 subject should be subject to the right of the minority in 
 any district, whether Protestant or Roman Catholic, to es- 
 tablish separate schools, the supporters of which should be 
 exempt from taxation for the support of the schools estab- 
 
 (g) 38 Vic. c. 49, a. 7 ; repealed by 40 Vic. c. 7. 
 (h) Sec. 8.
 
 THE NORTH-WEST TERRITORIES. 559 
 
 lished by the majority. The Act also contained much 
 legislation upon such general topics as real estate and its 
 -descent, wills, married women, registration of deeds, etc. 
 Provision was made for the administration of justice 
 through the medium of local courts presided over by 
 stipendiary magistrates, who in more serious criminal cases 
 were to be associated with the chief justice or one of the 
 judges of the Court of Queen's Bench of Manitoba. In 
 capital cases an appeal lay to the full Court of Queen's 
 Bench of that province. 
 
 Period from 28 April, 1877, to R. 8. C. (1886). 
 
 The North-West Territories Act, 1875, was, as we have 
 intimated, amended in a most important particular by 
 40 Vic. c. 7, passed about six months after the Act of 1875 
 came into operation. The section defining the legislative 
 powers of the Lieutenant-Governor in Council was, repealed 
 and the following section substituted therefor : 
 
 " 7. The Lieutenant-Governor in Council, or the Lieutenant- 
 Governor by and with the advice and consent of the Legislative 
 Assembly, as the case may be, shall have such powers to make 
 ordinances for the Government of the North- West Territories as 
 the Governor in Council may, from time to time confer upon 
 him ; Provided always that such powers shall not at any time 
 be in excess of those conferred by the ninety-second section of 
 ' The British North America Act, 1867,' upon the Legislatures 
 of the several Provinces of the Dominion : 
 
 " 2. Provided that no ordinance to be so made shall, (1) be 
 inconsistent with or alter or repeal any provision of any Act 
 of the Parliament of Canada in Schedule B. of this Act, or of 
 any Act of the parliament of Canada, which may now, or at any 
 time hereafter, expressly refer to the said Territories or which or 
 any part of which may be at any time made by the Governor in 
 Council, applicable to or declared to be in force, in the said Ter- 
 ritories, or, (2) impose any fine or penalty exceeding one 
 hundred dollars : 
 
 " 3. And provided that a copy of every such ordinance shall 
 be mailed for transmission to the Secretary of State, within ten
 
 560 THE CANADIAX CONSTITUTION. 
 
 days after its passing, and it may be disallowed by the Governor 
 in Council at any time within two years after its receipt by the 
 Secretary of State ; Provided, also, that all ordinances so made, 
 and all Orders in Council disallowing any ordinances so made, 
 shall be laid before both Houses of Parliament, as soon as con- 
 veniently may be after the making and enactment thereof 
 respectively." 
 
 On the llth of May, 1877, an Order in Council was 
 passed which, after reciting the statutes of 1875 and 1877, 
 ran thus : 
 
 Now, in pursuance of the powers by the said statute 
 conferred, his Excellency, by and with the advice of the 
 Privy Council, has been pleased .further to order, and it is 
 hereby ordered, that the Lieutenant-Governor in Council 
 shall be and he is hereby empowered to make ordinances in 
 relation to the following subjects, that is to say : 
 
 1. The establishment and tenure of territorial offices, 
 and the appointment and payment of territorial officers ; 
 
 2. The establishment, maintenance and management of 
 prisons in and for the North- West Territories ; 
 
 3. The establishment of municipal institutions in the 
 Territories, in accordance with the provisions of the 
 " North- West Territories Acts, 1875 and 1877 " (i) ; 
 
 4. The issue of shop, auctioneer and other licenses, in 
 order to the raising of a revenue for territorial or munici- 
 pal purposes (i) ; 
 
 5. The solemnization of marriage in the Territories ; 
 
 6. The administration of justice, including the consti- 
 tution, organization and maintenance of territorial courts 
 of civil jurisdiction ; 
 
 7. The imposition of punishment by fine, penalty or 
 imprisonment for enforcing any territorial ordinance ; 
 
 8. Property and civil rights in the Territories, subject 
 to any legislation by the parliament of Canada upon these 
 subjects, and 
 
 (i) Somewhat amended in 1883 ; see post.
 
 THE NORTH- WEST TERRITORIES. 561 
 
 9. Generally on matters of a merely local or private 
 nature in the Territories. 
 
 These Acts were from time to time amended, consoli- 
 dated and revised, as we shall indicate, but, substantially, 
 the legislative power of the Lieutenant-Governor in 
 Council continued to be governed by the above section and 
 the Order in Council we have quoted until 1888 indeed, 
 we may say, until 1891, for, upon the establishment of a 
 legislative assembly in the former year, its powers of legis- 
 lation were not increased beyond those exerciseable before 
 its creation by the Lieutenant-Governor in Council. 
 
 In 1880, by 43 Tic. c. 25, previous Acts were amended 
 and consolidated. The time for disallowing territorial 
 ordinances was shortened to one year, and the clauses of the 
 Act of 1875 relating to municipalities eliminated, being- 
 deemed, no doubt, to be covered by the Order in Council 
 above quoted (j). The participation of Manitoba judges in 
 the administration of justice in the Territories was 
 abolished except in the matter of appeals in capital cases. 
 
 We may mention also 47 Vic. c. 23, and 48-49 Vic. c. 51, 
 making amendments of details not material to be further 
 noted here. 
 
 On June 26th, 1883, a new Order in Council was 
 promulgated defining the powers of the Lieutenant-Gov- 
 ernor, whether acting in Council or by and with the ad- 
 vice and consent of the legislative assembly (k) ; the only 
 amendment, however, of the Order in Council of 1877 
 above quoted being jn items 3 and 4, which were made to 
 read as follows : 
 
 " 3. Municipal Institutions in the Territories, subject to any 
 legislation by the Parliament of Canada heretofore or hereafter 
 enacted : 
 
 " 4. The issue of shop, auctioneer, and other licenses, except 
 
 (j) See 45 Vic. c. 28, and 47 Vic. c. 23, s. 10. 
 (A-) No assembly was constituted until 1888 ; see post. 
 CAN. Co.v. 36
 
 562 THE CANADIAN CONSTITUTION. 
 
 licenses fur the sale of intoxicating liquors, in order to the 
 raising of a revenue for territorial or municipal purposes." 
 
 In 1886, important legislation was enacted (49 Vic. c. 25), 
 but as it was -carried at once into the Revised Statutes of 
 that year we need not stay to consider its provisions (I). 
 
 At the present time the position of these territories is. 
 defined by "The North- West Territories Act" (R. S. C- 
 c. 50), and amendments thereto as follows : 
 
 A. D. less. An Act respecting the North-West Ter- 
 
 ritories. 
 
 TTER Majesty, by and with the advice and 
 -*--*- consent of the Senate and House of Com- 
 mons of Canada enacts as follows: 
 
 SHORT TITLE. 
 
 short title. ] . This Act may be cited as " The North- 
 
 West Territories Act" 
 
 INTERPRETATION. 
 
 2. In this Act, unless the context otherwise 
 requires, 
 interpretation ( a \ The expression " Territories " means the 
 
 " Terntoned." 
 
 ' North- West Territories, as defined in this Act; 
 "Lieutenant- (M The expression "The Lieutenant-Gover- 
 
 Governor. 
 
 , nor" means the Lieutenant-Governor of the 
 North- West Territories ; 
 
 Govlrnor^n* ^ ^e expression " Lieutenant-Governor in 
 council." Council " means the Lieutenant-Governor of the 
 Territories in Council, or the Lieutenant-Gover- 
 nor by and with the advice and consent of the 
 Legislative Assembly of the Territories, as the 
 case may be; 
 
 (I) It was proclaimed 18th February, 1887 ; the B. S. O. took effect 
 1st March, 1887.
 
 THE NORTH-WEST TERRITORIES. 563 
 
 (d) The expression " Supreme Court " means ^P? reme 
 the Supreme Court of the North- West Terri- 
 tories. 
 
 [(e) and (/) define "intoxicating liquor" 
 and " intoxicant." It is not thought necessary 
 to print the sections dealing with that subject. 
 Only those parts of the Act which may be rea- 
 sonably considered of constitutional impor- 
 tance are here inserted.'} 
 
 GOVERNMENT AND LEGISLATION. 
 
 3. The Territories formerly known as " Ru- Territories. 
 
 * defined. 
 
 pert's Land " and the North-West Territory 
 shall, with the exception of such portions thereof 
 as form the Province of Manitoba and the Dis- 
 trict of Keewatin (m), continue to be called and 
 known as the North-West Territories. 
 
 4. There shall be for the Territories, an offi- Lieutenant- 
 cer called the Lieutenant-Governor, appointed by 
 
 , the Governor in Council, by instrument under 
 the Great Seal of Canada, who shall hold office 
 during pleasure : 
 
 2. The Lieutenant-Governor shall administer Kis powers 
 the Government, under instructions, from time to 
 time, given him by the Governor in Council, or 
 by the Secretary of State of Canada. 
 
 5. The Governor in Council may, from time Administrator 
 to time, appoint an Administrator to execute the 
 
 office and functions of the Lieutenant-Governor 
 during his absence, illness or other inability. 
 
 6. Every Lieutenant-Governor or Adminis- ^^ to be 
 trator so appointed shall, before assuming the 
 
 \ duties of his office, take and subscribe, before the 
 Governor-General, or before some person duly 
 
 () Keewatin is in a still more embryonic state, and it is not thought 
 necessary to deal with it here. See B. S. C. c. 53.
 
 564 
 
 THE CANADIAN CONSTITUTION. 
 
 Legislative 
 Assembly. 
 
 Electoral 
 districts, 
 
 Duration of 
 the Assembly. 
 
 Limit of time 
 for session. 
 
 Proceedings 
 on bills. 
 
 authorized to administer such oaths, an oath of 
 allegiance and an oath of office similar to those 
 required to be taken by a Lieutenant-Governor 
 under " The British North America Act, 1867." 
 [Sections 7 and 8 were repealed by 51 Vic. 
 c. 19, s. 1, and provision made for a Legislative 
 Assembly (section -2). This latter section was 
 itself repealed by 54-55 Vic, c. 22, the provision 
 now standing : 
 
 2. There shall be a Legislative Assembly for 
 the Territories, which shall be composed of 
 twenty-six members elected to represent the 
 electoral districts set forth in the schedule (n) to 
 this Act. 
 
 2. The Assembly shall have power to alter 
 the boundaries of the electoral districts from 
 time to time. 54-55 Vic. c. 22, s. 2. 
 
 3. Every Legislative Assembly shall con- 
 tinue for three years from the date of the 
 return of the writs for choosing the same ; but 
 the Lieutenant-Governor may, at any time, dis- 
 solve the Assembly and cause a new one to be 
 chosen. 54-55 Vic. c. 22, s. 3. 
 
 4. There shall be a session of the Legislative 
 Assembly convened by the Lieutenant-Governor 
 at least once in every year, so that twelve 
 months shall not intervene between the last 
 sitting of the Assembly in one session and its 
 first sitting in another session; and such Assem- 
 bly shall sit separately from the Lieutenant- 
 Governor, and shall present Bills passed by it to 
 the Lieutenant-Governor for his assent, who may 
 approve or reserve the same for the assent of 
 the Governor-General. 54-55 Vic. c. 22, s. 4.] 
 
 (n) Not printed.
 
 THE NORTH-WEST TERRITORIES. 565 
 
 [With respect to elections provision is made 
 by 51 Vic. c. 19, amended to some extent by 
 54-55 Vic. c. 2-2. We indicate after each section 
 by what Act enacted : 
 
 5. Until the Legislature of the North- West Jf^^g^ 
 Territories otherwise provides, as it may do, the 
 law in force therein at the time of the passing of 
 this Act relating to the election of members of 
 the Council of the North- West Territories shall, 
 subject to the provisions of this Act, apply to 
 the election of members of the Legislative As- 
 sembly. 51 Vic. c. 19, s. 5. 
 
 G. Whenever it is necessary to call a new issue of writs 
 
 T . , . . , n for elections. 
 
 Legislative Assembly, or whenever a vacancy 
 occurs by reason of death, resignation, or other- 
 wise, of an elected member, the Lieutenant-Gov- 
 ernor shall cause a writ or writs of election, as 
 the case may be, to be issued by the Clerk of the 
 Legislative Assembly, in such form and ad- 
 dressed to such returning officer or officers as he 
 approves of until otherwise provided by the 
 Assembly : 
 
 2. Until the Legislative Assembly otherwise Rules for 
 provides, the Lieutenant-Governor shall, by pro- 
 clamation, prescribe and declare, for use at all or 
 any elections, rules for 
 
 (a) The mode of providing voters' lists; 
 
 (b) The oaths to be taken by voters ; 
 
 (c) The appointment, powers and duties of 
 returning and deputy returning officers, election 
 and poll clerks and their oaths of office ; 
 
 (d) The proceedings to be observed at elec- 
 tions ; 
 
 (e) The periods during which such elections 
 may be continued ;
 
 566 THE CANADIAN CONSTITUTION. 
 
 (f) Such other provisions with respect to 
 such elections as he thinks fit. 54-55 Vic. c. 22, 
 s. 5. 
 
 who may 7". The persons qualified to vote at an elec- 
 
 tion for the Legislative Assembly shall be the 
 male British subjects by birth or naturalization 
 (other than unenfranchised Indians), who have 
 attained the full age of twenty-one years, who 
 have resided in the North- West Territories for 
 at least the twelve months, and in the electoral 
 district for at least the three months respec- 
 tively, immediately preceding the time of voting. 
 51 Vic. c. 19, s. 7. 
 
 who eligible $. Any British subject by birth or natural - 
 
 for election. J J 
 
 ization shall be eligible tor nomination and 
 election. 
 
 Deposit at 2. No nomination at any election shall be 
 
 nomination. y 
 
 valid and acted upon unless at or before the 
 time of nomination a sum of one hundred dollars 
 is deposited in the hands of the returning 
 officer ; and the receipt of the returning officer 
 shall in every case be sufficient evidence of the 
 payment herein mentioned : 
 
 HOW applied. 3. The sum so deposited shall be returned to 
 the person by whom the deposit was made in 
 the event of the candidate, by or on whose 
 behalf it was so deposited, being elected, or of 
 his obtaining a number of votes at least equal to 
 one-half the number of votes polled in favor of 
 the candidate elected, otherwise it shall belong to 
 Her Majesty for the public uses of the Terri- 
 tories ; and the sum so paid and not returned as 
 herein provided shall be applied by the return- 
 ing officer towards the payment of the election 
 expenses, and an account thereof shall be ren-
 
 THE NORTH-WEST TERRITORIES. 567 
 
 dered by him to the Lieutenant-Governor. 
 51 Vic. c. 19, s. 8. 
 
 9. Elected members of the Legislative As- ^^bJ* 3 
 sernbly shall take and subscribe before the members - 
 Lieutenant-Governor or before such person as is 
 designated by the Governor in Council, the fol- 
 lowing oath of allegiance : 
 
 " I, A. B., do swear that I will be faithful and 
 "bear true allegiance to Her Majesty, her heirs 
 and successors." 51 Vic. c. 19, s. 9. 
 
 10. A majority of the members of the Legis- Quorum 
 lative Assembly, including the members ap- 
 pointed by the Governor in Council, shall form 
 
 -a quorum for the transaction of business. 51 
 Vic. c. 19, s. 10. 
 
 1 1 . The Legislative Assembly, on its first Election of 
 assembling after a general election, shall proceed 
 
 with all practicable speed to elect one of its 
 elected members to be Speaker: 
 
 2. In case of a vacanc} 7 happening in the vacancy m 
 office of Speaker by death, resignation or other- speaker, 
 wise, the Legislative Assembly shall proceed 
 
 with all practicable speed to elect another of its 
 elected members to be Speaker : 
 
 3. The Speaker shall preside at all meetings speaker to 
 of the Legislative Assembly : 
 
 4. Until the Legislative Assembly otherwise case of at>- 
 provides, in case of the absence for any reason vided for. 
 of the Speaker from the chair of the Assembly 
 
 for forty-eight consecutive hours, the Assembly 
 may elect another of its members to act as 
 Speaker, and the member so elected shall, during 
 the continuance of such absence of the Speaker, 
 have and execute all the powers, privileges and 
 duties of Speaker. 51 Vic. c. 19, s. 11.
 
 568 
 
 THE CANADIAN CONSTITUTION. 
 
 Advisory 
 Council to be 
 appointed. 
 
 Money votes 
 to be first 
 
 declde ityt ^~- Questions arising in the Legislative As- 
 
 sembly shall be decided by a majority of voices 
 other than that of the Speaker, and when the 
 voices are equal, but not otherwise, the Speaker 
 shall have a vote. 51 Vic. c. 19, s. 12. 
 
 13. The Lieutenant-Governor shall select 
 from among the elected members of the Legisla- 
 tive Assembly four persons to act as an advisory 
 council on matters of finance, who shall severally 
 hold office during pleasure; and the Lieutenant- 
 Governor shall preside at all sittings of such 
 advisory council and have a right to vote as a 
 member thereof, and shall also have a casting 
 vote in case of a tie. 51 Vic. c. 19, s. 13. 
 
 14. The Legislative Assembly shall not adopt 
 recommended or p asg an y vo ^ e> resolution, address, or bill for 
 
 the appropriation of any part of the public 
 revenue, or of any tax or impost to any purpose 
 that has not been first recommended to the 
 Assembly by message of the Lieutenant-Gover- 
 nor in the session in which such vote, resolution 
 address or bill is proposed. 51 Vic. c. 19, s. 14. 
 
 15. The Speaker of the Legislative Assembly 
 shall receive a salary of five hundred dollars per 
 annum, payable out of the Consolidated Revenue 
 Fund of Canada. 51 Vic. c. 19, s. 15. 
 
 1 6. The Govemor-in-Council may appoint a 
 clerk of the Legislative Assembly, who shall act 
 as, and perform the duties of secretary to the 
 Lieutenant-Governor, and who shall take before 
 the Lieutenant-Governor the oath of allegiance> 
 and such oath of office as the Govemor-in-Coun- 
 cil prescribes, and who shall receive a salary of 
 two thousand dollars per annum, and such salary 
 shall be paid out of the Consolidated Revenue 
 Fund of Canada. 51 Vic. c. 19, s. 16.] 
 
 Salary of 
 Speaker. 
 
 Clerk of As- 
 sembly, his 
 duties and 
 salary.
 
 THE NORTH-WEST TERRITORIES. 569 
 
 9. The seat of Government of the Territories 
 shall be fixed, and may, from time to time, be 
 changed by the Governor in Council. 
 
 [Section 10 made provision for the Lieut- 
 Governor presiding over and voting at 'meetings 
 of the Council. See now 51 Vic. c. 19, s. 13 ; 
 and 54-55 Vic. c. 22, s. 4, supra.] 
 
 11. Subject to the provisions of this Act, the 
 laws of England relating to civil and criminal 
 matters, as the same existed on the fifteenth day 
 
 of July, in the year of our Lord one thousand exceptic 
 eight hundred and seventy, shall be in force in 
 the Territories, in so far as the same are appli- 
 cable to the Territories, and in so far as the same 
 have not been, or are not hereafter repealed, 
 altered, varied, modified, or affected by any Act 
 of the Parliament of the United Kingdom appli- 
 cable to the Territories, or of the Parliament of 
 Canada, or by any ordinance of the Lieutenant- 
 Governor in Council. 
 
 12. All laws and ordinances in force in the ^tfnued 01 (of 
 Territories, and not repealed by or inconsistent 
 
 with this Act, shall remain in force until it is 
 otherwise ordered by the Parliament of Canada, 
 by the Governor in Council, or by the Lieuten- 
 ant-Govemor in Council, under the authority of 
 this Act. 
 
 [Section 13, defining the powers of the Lieut.- 
 Goiernor in Council u'as repealed by 54-55 Vic. 
 
 (o) For convenience we have collected the authorities upon the mat- 
 ters referred to in sections 11 and 12. and they will be found, post. In the 
 Revised Statutes of Canada are a number of Acts specially dealing with 
 different subjects of legislation as to the North-West Territories, e. g., 
 ' The X. W. T. Representation Act," " The Territories Real Property 
 Act," " The Homestead Exemption Act," "The Dominion Lands Act," 
 etc., etc.
 
 570 THE CANADIAN CONSTITUTION. 
 
 c. 22, s. 6, which substitutes therefor the follow- 
 ing : 
 
 Assembly 1 IS The Legislative Assembly shall, subject 
 
 to the provisions of this Act, or of any other Act 
 of the Parliament of Canada, at any time in force 
 in the Territories, have power to make ordi- 
 nances for the government of the Territories in 
 relation to the classes of subjects next herein- 
 after mentioned, that is to say : 
 
 (1) The mode of providing voters' lists, the 
 oaths to be taken by voters, -the appointment, 
 powers and duties of returning officers and 
 deputy returning officers, election and poll clerks, 
 and their oaths of office, the proceedings to be 
 observed at elections, the periods during which 
 such elections may be continued, and such other 
 provisions with respect to such elections as ma} r 
 be thought fit ; 
 
 (2) Direct taxation within the Territories in 
 order to raise a revenue for territorial or muni- 
 cipal or local purposes ; 
 
 (3) The establishment and tenure of terri- 
 torial offices, and the appointment and payment 
 of territorial officers out of territorial revenues : 
 
 (4) The establishment, maintenance, and 
 management of prisons in and for the Terri- 
 tories, the expense thereof being payable out 
 of territorial revenues ; 
 
 (5) Municipal institutions in the Territories ; 
 
 (6) Shop, saloon, tavern, auctioneer and 
 other licenses, in order to raise a revenue for 
 territorial or municipal purposes ; 
 
 (7) The incorporation of companies with ter- 
 ritorial objects, with the following exceptions:
 
 THE NORTH-WEST TERRITORIES. 571 
 
 (a) Such companies as cannot be incorpor- 
 ated by a provincial legislature ; 
 
 (b) Railway, steamboat, canal, transportation, 
 telegraph and irrigation companies ; 
 
 (c) Insurance companies ; 
 
 (8) The solemnization of marriage in the 
 Territories ; 
 
 (9) Property and civil rights in the Terri- 
 tories ; 
 
 (10) The administration of justice in the 
 Territories, including the constitution, organi- 
 zation, and maintenance of territorial courts of 
 civil jurisdiction, including procedure therein; 
 but not including the power of appointing any 
 judicial officers; 
 
 (11) The imposition of punishment by fine, 
 penalty, or imprisonment, for enforcing any ter- 
 ritorial ordinances ; 
 
 (12) The expenditure of territorial funds and 
 such portion of any moneys appropriated by 
 Parliament for the Territories as the Lieutenant- 
 Governor is authorized to expend by and with 
 the advice of the Legislative Assembly or of any 
 Committee thereof ; 
 
 (13) Generally, all matters of a merely local 
 or private nature in the Territories : 
 
 2. Nothing in this section contained gives, or Limitation, 
 shall be construed to give to the Legislative 
 Assembly any greater powers with respect to 
 the subjects therein mentioned than are given to 
 Provincial Legislatures under the provisions of 
 section 92 of " The British North America Act, 
 1867," with respect to the similar objects therein 
 mentioned.]
 
 572 
 
 THE CANADIAN CONSTITUTION. 
 
 Ordinances 
 
 respecting 
 
 education. 
 
 Majority 
 schools, (p) 
 
 Minority 
 schools. 
 
 Declaratory 
 as to ordinan- 
 ces. 
 
 Ordinances 
 respecting 
 administra- 
 tion of justice 
 (9) 
 
 14. The Lieutenant- Governor in Council 
 shall pass all necessary ordinances in respect to 
 education; but it shall therein always be pro- 
 vided, that a majority of the ratepayers of any 
 district or portion of the Territories, or of any 
 less portion or subdivision thereof, by whatever 
 name the same is known, may establish such 
 schools therein as they think fit, and make the 
 necessary assessment and collection of rates 
 therefor ; and also that the minority of the rate- 
 payers therein, whether Protestant or Roman 
 Catholic, may establish separate schools therein, 
 and in such case, the ratepayers establishing 
 such Protestant or Roman Catholic separate 
 schools shall be liable only to assessments of such 
 rates as they impose upon themselves in respect 
 thereof : 
 
 2. The power to pass ordinances, conferred 
 upon the Lieutenant-Govemor by this section is 
 hereby declared to have been vested in him from 
 the seventh day of May, one thousand eight 
 hundred and eighty. 
 
 15. The Lieutenant-Governor in Council 
 may, from time to time, but subject to the pro- 
 visions of this Act, make ordinances in relation 
 to the administration of justice in the Territories, 
 and to the constitution, maintenance and organ- 
 ization of the Supreme Court, including proce- 
 dure therein in civil matters, in as full and ample 
 a manner as the Legislature of any Province of 
 
 (p) See ante, p. 489 and p. 510. 
 
 (q) See, however, 54-55 Vic. c. 22, s. 6, enacting a new section 13 to the 
 main Act and giving to the Legislative Assembly the powers defined 
 as above. By some oversight, probably, this section was not repealed, 
 and it would appear that the Lieutenant-Governor in Council has con- 
 current power, in this connection, with the Assembly.
 
 THE NORTH-WEST TERRITORIES. 
 
 573 
 
 Canada could, under the fourteenth paragraph of 
 the ninety-second section of " The British North 
 America Act, 1867," or otherwise, make laws in 
 relation to the administration of justice in the 
 Province, and to the constitution, maintenance 
 and organization of a provincial court, both of 
 civil and criminal jurisdiction, including proce- 
 dure in civil matters in such court. 
 
 1 6. 
 
 may 
 
 The Lieutenant-Governor in Council ordinances 
 
 respecting 
 
 from time to time, make ordinances in juries. 
 
 respect to the mode of caUing juries, other than 
 grand juries, in criminal as well as civil cases, 
 and when and by whom and the manner in 
 which they may be summoned or taken, and in 
 respect to all matters relating to the same. 
 
 17. An authentic copy of every ordinance Disallowance 
 
 rj ol ordinances. 
 
 shall be transmitted by mail to the Secretary of 
 State within thirty days after its passing ; and 
 if the Governor in Council, at any time within 
 one year after its receipt by the Secretary of 
 State, thinks fit to disallow the ordinance, such 
 disallowance, w r hen signified by the Secretary of 
 State to the Lieutenant-Governor, shall annul 
 the ordinance from and after the date of such 
 signification ; and all ordinances so made, and all 
 Orders in Council disallowing any ordinances so 
 made, shall be laid before both Houses of Parlia- 
 ment as soon as conveniently may be after 
 the making and enactment thereof respectively. 
 
 [Sections 18 to 25, both inclusive, were re- 
 pealed by 51 Vic. c. 19. Sections 26 to 40, both 
 inclusive, relate to "ivills" and "married wo- 
 men" and by 54-55 Vic. c. 22, the Assembly of 
 the Territories is empowered to repeal theman<] 
 make othe-r provision.}
 
 574 
 
 THE CANADIAN CONSTITUTION. 
 
 ADMINISTRATION OF JUSTICE. 
 
 Supreme 41. The Supreme Court of record of original 
 
 court contmu- t f 
 
 ed - and appellate jurisdiction now existing under the 
 
 name of "The Supreme Court of the North- West 
 Territories" is hereby continued under the name 
 aforesaid. 
 
 constitution 40 The Supreme Court shall consist of five 
 
 of court. r 
 
 puisne' judges, who shall be appointed by the 
 ; Governor in Council by letters patent under the 
 Great Seal. 
 
 who may 
 
 be appointed 
 
 judge. 
 
 to be held. 
 
 Residence. 
 
 ak t en t be 
 
 43. Any person may be appointed a judge 
 
 F * * . J 8 
 
 or the court who is or has been a judge or a 
 Superior Court of any Province of Canada, a 
 stipendiary magistrate of the Territories, or a 
 barrister or advocate of at least ten years' stand- 
 ing at the bar of any such Province, or of the 
 Territories. 
 
 44 No Judge of the court shall hold any 
 o t, ner o ffi C e of emolument under the Government 
 of Canada, or of any Proviace thereof, or of the 
 Territories. 
 
 43. Each judge of the court shall reside at 
 such place in the Territories as the Governor in 
 Council, in the commission to such judge, or by 
 Order in Council, directs. 
 
 46 ' The J ud S es * the court sna11 nold office 
 during good behavior, but shall be removable by 
 
 the Governor-General, on address of the Senate 
 and House of Commons of Canada. 
 
 ^' Every judge shall, previously to enter- 
 ing upon the duties of his office as such judge, 
 take an oath in the form following :
 
 THE NORTH-WEST TERRITORIES. 575 
 
 " I, , do solemnly and sincerely Form of oath - 
 
 " promise and swear that I will duly and faith- 
 " fully, and to the best of my skill and know- 
 " ledge, execute the powers and trusts reposed in 
 " me as one of the judges of the Supreme Court 
 " of the North- West Territories. So help me 
 "God." 
 
 2. Such oaths shall be administered by the HOW adminis- 
 
 * tered. 
 
 Lieutenant-Governor or by a judge of the court. 
 
 48. The court shall, within the Territories, 
 and for the administration of the laws for the 
 time being in force within the Territories, pos- maL 
 sess all such powers and authorities as by the 
 law of England are incident to a superior 
 court of civil and criminal jurisdiction ; and shall 
 have, use and exercise all the rights, incidents 
 and privileges of a court of record and all other 
 rights, incidents and privileges, as fully to all 
 intents and purposes as the same were on the 
 fifteenth day of July, one thousand eight hun- 
 dred and seventy, used, exercised and enjoyed 
 by any of Her Majesty's superior courts of com- 
 mon law, or by the Court of Chancery, or by the 
 Court of Probate in England, and shall hold 
 pleas in all and all manner of actions, causes and 
 suits as well criminal as civil, real, personal 
 and mixed, and shall proceed in such actions, 
 causes and suits by such process and course as 
 are provided by law, and as tend with justice 
 and despatch to determine the same, and shall 
 hear and determine all issues of law, and shall 
 also hear and (with or without a jury as pro- 
 vided by law) determine all issues of fact joined 
 in any such action, cause or suit, and give judg- 
 ment thereon and award execution thereof in as 
 full and as ample a manner as might at the said
 
 576 
 
 THE CANADIAN CONSTITUTION. 
 
 date be done in Her Majesty's Court of Queen's 
 Bench, Common Bench, or in matters which 
 regard the Queen's revenue (including the con- 
 demnation of contraband or smuggled goods) by 
 the Court of Exchequer, or by the Court of 
 Chancery or the Court of Probate in England. 
 
 4t>. The court shall sit in bane at the seat of 
 government of the Territories at such time as the 
 Lieutenaiit-Governor in Council appoints : the 
 senior judge present shall preside and any three 
 judges of the court shall constitute a quorum. 
 
 50. The court sitting in bane shall hear and 
 determine all applications for new trials, all 
 questions or issues f law, all questions or points 
 in civil or criminal cases reserved for the opinion 
 of the court, all appeals or motions in the nature 
 of appeals, all petitions and all other motions, 
 matters or things whatsoever which are lawfully 
 brought before it. 
 
 51. The Governor in Council may, at any 
 time, by proclamation divide the Territories into 
 
 , judicial districts, and give to each such district 
 an appropriate name, and in like manner, from 
 time to time, alter the limits and extent of such 
 districts. 
 
 [Section 52 was repealed by 54-55 Vic. c. .' .'. 
 s. 7, and the following substituted: 
 
 Territorial 52. Every Judge of the Court shall have 
 
 jurisdiction of 
 
 Judges. jurisdiction throughout the Territories, but shall 
 
 usually exercise the same within the judicial 
 district to which he is assigned by the Governor 
 ) in Council, and in all causes, matters, and pro- 
 ceedings, other than such as are usually cogniz- 
 able by a court sitting in bane, and not by a 
 single judge of the said court, shall have and 
 
 Sittings in 
 bane. 
 
 Quorum. 
 
 Jurisdiction 
 in bane. 
 
 Appeals. 
 
 Judicial 
 districts.
 
 THE XORTH-WEST TERRITORIES. 577 
 
 exercise all the powers, authorities and jurisdic- 
 tion of the court : 
 
 2. Subject to any statute prohibiting or re- Wri . ts f . 
 
 J * _^ certioran. 
 
 stricting proceedings by way of certiorari, a 
 single judge shall, in addition to his other 
 powers, have all the powers of the court as to 
 proceedings by way of certiorari over the pro- 
 ceedings, orders, convictions, and adjudications 
 had, taken, and made by justices of the peace? 
 and in addition thereto shall have the power of 
 revising, amending, modifying, or otherwise 
 dealing with the same; and writs of certiorari 
 may, upon the order of a judge, be issued by the 
 clerk of the court mentioned in such order 
 returnable as therein directed. 54-55 Vic. c. 22, 
 s.7.] 
 
 53. Whenever, under any Act in force in the Powers of 
 
 * single judge. 
 
 Territories, any power or authority is to be exer- 
 cised, or anything is to be done by a judge of a 
 court, such power or authority shall, in the Ter- 
 ritories, be exercised or such thing shall be done 
 by a judge of the Supreme Court, unless any 
 other provision is made in that behalf by such 
 Act. 
 
 54. The judges of the Supreme Court shall Judges to 
 
 1 replace 
 
 have all the powers, authority and jurisdiction ^ former 
 
 " stipendiary 
 
 vested in the stipendiary magistrates of the Ter- magistrates, 
 ritories on the second day of June, one thousand 
 eight hundred and eighty-six: and wherever in 
 any Act of the Parliament of Canada relating to 
 the Territories the words "stipendiary magis- 
 trate "or "stipendiary magistrates " are used, the 
 same shall mean a judge or the judges of the 
 Supreme Court, as the case may be. 
 
 55. Sittings of the Supreme Court, which Bi 1 ttin 6s, 
 
 where held. 
 
 shall be presided over by a judge of the court, 
 CAX. Cox. 37
 
 578 THE CANADIAN CONSTITUTION. 
 
 shall be held in each judicial district at such 
 times and places as the Lieutenant-Governor of 
 the Territories appoints. 
 
 [Sections 56 to 62, both inclusive, relate to 
 sheriffs and clerks, their duties, etc.] 
 
 Disposal of O3. The Lieutenant-Governor may, subject. 
 
 North- West . J . J 
 
 Mounted to any orders made in that behalf, from time to 
 
 Police Force. 
 
 ( r ) time, by the Governor in Council, issue orders to- 
 
 the North- West Mounted Police force, in aid of 
 the administration of civil and criminal justice^ 
 and for the general peace, order and good govern- 
 ment of the Territories. 
 
 Justicesofthe O-A. The Lieutenant-Governor may appoint 
 
 peace. r ^ 
 
 justices of the peace for the Territories, who shall 
 have jurisdiction as such throughout the same.. 
 
 [Sections 65 to 81, both inclusive, relate to 
 the administration of criminal justice ; 83 to 
 87 to coroners and inquests ; 88 to 91 to the ad- 
 ministration of civil justice ; 92 to 100 to in- 
 toxicants, and 101 to 108 contain miscellaneous 
 provisions which we need not further notice. 
 Amendments have been made to some of the sec- 
 tions by 51 Vic. c. 19, and 54-55 Vic. c. 22. By 
 section 19 of the latter, power to repeal and 
 alter the law as to intoxicants is given to the 
 Assembly so far as relates to territory covered 
 by electoral districts.] 
 
 GENERAL PROVISIONS. 
 
 Provision 1OO. Whenever in any Act of the Parlia- 
 
 when there 
 
 officers^kre men ^ ^ Canada in force in the Territories, any 
 
 Icfof "parVa on< i cer i g designated for carrying on any duty 
 
 therein mentioned, and there is no such officer in 
 
 (r) See K. S. C. c. 45, as to this Force.
 
 THE NORTH-WEST TERRITORIES. 579* 
 
 the Territories, the Lieutenant-Governor in 
 Council may order by what other person or 
 officer such duty shall be performed, and any- 
 thing done by such person or officer, under such 
 order, shall be valid and lawful in the premises ; 
 or if it is in any such Act ordered that any docu- 
 ment or thing shall be transmitted to any officer, 
 court, territorial division or place, and there is 
 then in the Territories no such officer, court or 
 territorial division or place, the Lieutenant-Gov- 
 ernor in Council may order to what officer, court 
 or place such transmission shall be made, or may 
 dispense with the transmission thereof. 
 
 [Section- 110 relates to the use of the English 
 or French language in the debates of the Assem- 
 }>!;/. By oJf-55 Vic. c. 22, s. 19, the Legislative 
 Assembly has now full control of the question.] 
 
 111. Any copy of any proclamation or order c ^^^ co ies 
 made by the Governor in Council, or ordinance, ^ ife'evi* '' 
 proclamation or order made by the Lieutenant- dence - 
 Governor in Council, or by the Lieutenant-Gov- 
 ernor by and with the advice and consent of the 
 Legislative Assembly of the North-West Terri- 
 tories, as the case may be, printed in the Cano.<l<! 
 Gazette, or purporting to be printed by the 
 Queen's Printer for Canada, or by the printer to 
 the Government of Manitoba at Winnipeg, or by 
 the printer to the Government of the North- West 
 Territories, shall be prima facie evidence of such 
 proclamation or order, and of the fact that it is 
 in force. 
 
 APPLICATION OF ACTS TO TERRITORIES. 
 
 11. Every Act of the Parliament of Can- Jfg^? 11 
 ada, except in so far as otherwise provided in any Cauada 
 such Act, and except in so far as the same is, by
 
 580 THE CANADIAN CONSTITUTION. 
 
 its terms, applicable only to one or more of the 
 Provinces of Canada, or in so far as any such Act 
 is, for any reason, inapplicable to the Territories, 
 shall, subject to the provisions of this Act, apply 
 and be in force in the Territories : 
 Governor in 2. The Governor in Council may, by procla- 
 
 Council may * 
 
 extend Acts mation, from time to time, direct that any Act of 
 
 to the Tern- 
 
 tories. ^ ne Parliament of Canada, or any part or parts 
 
 thereof, or any one or more of the sections of any 
 one or more of any such Acts not then in force in 
 the Terri tories, shall be in force in the Terri- 
 tories generally, or in any part or parts thereof 
 mentioned in such proclamation. 
 
 Introduction of English L<:i: 
 
 As we have already noted (s), the first Act of the par- 
 liament of Canada relating to Rupert's Land and the 
 North- Western Territory 32-33 Vic. c. 3 continued all 
 the laws then in existence therein, and this provision runs 
 through all the legislation until the passage of 49 Vic. c. 2.">. 
 which came into operation on the 18th day of February, 
 1887 (t). By this Act see R. S. C. c. 50, s. 11 the Eng- 
 lish law, civil and criminal, in force on the 15th July, 1870, 
 was introduced into the North-West Territories, subject, of 
 course, to any amendment by Imperial, Dominion, or terri- 
 torial legislation since that date. We need not elaborate 
 this question here. Applicability is made the test of intro- 
 duction, and the authorities we have collected and reviewed 
 in chapter V. of this work should be of much assistance to 
 those who have now, in the North- West Territories, to 
 decide similar questions. 
 
 The only reported decision of the Supreme Court of the 
 Territories is Reg. v. Nan-e-quis-a Ka (u), in which doubt 
 was expressed as to the applicability of the English Mar- 
 ls) Ante, p. 553. (t) Dom. Stat., 1887, p. clvi. 
 'w) 1 N. W. T. Rep. 21. 

 
 THE NORTH-WEST TERRITORIES. 581 
 
 Acts (v) to the Territories. It was held that at all 
 events they are not in force quoad Indians. Reference is 
 made to the decision of Mr. Justice Monk in Connolly v. 
 Woolrich (w), in which a marriage according to Indian 
 custom, which had taken place in the Athabasca region, 
 was held valid. 
 
 But this question remains : What was the law in force 
 in these Territories down to February, 1887 ? Upon this 
 question we may refer to Re Calder (#), in which the late 
 Recorder Adam Thorn gave at length his reasons for hold- 
 ing that the Court of the Governor and Council of Assini- 
 boia had jurisdiction to try a person for homicide com~ 
 mitted on Peace River beyond Great Slave Lake. In his 
 view the territory over which the Hudson Bay Co. had, 
 under its charter, powers of government (y), and into which 
 therefore the law of England was carried by that charter, 
 comprised even more than all the country now known as 
 the North- West Territories. Against this view of the 
 Recorder may be cited the judgment, above referred to, of 
 Mr. Justice Monk in Connolly v. Woolrich, in which it was 
 held that the jurisdiction of the Hudson's Bay Co. under 
 its charter did not extend westward beyond the navig- 
 able waters of the streams flowing into Hudson's Bay ; 
 that in these territories tha-JajgL in force was thftJEnglish 
 common laiV- of date 1670; and that no alteration in this 
 respect had been made since the acquisition of these terri- 
 tories down to 1867. The view, however, of Recorder 
 Thorn is the one recognized in the Territories. According 
 to the construction put upon the ordinance of the Council 
 of Assiniboia, of date 1862, by the Court of Queen's Bench 
 of Manitoba in Sinclair v. Mulligan (z), the law in force in 
 the Territories prior to February, 1887, was English law of 
 date 1670 so far as applicable, and so far as unaltered by 
 Dominion and territorial legislation prior to 1887. 
 
 (v) See ante, p. 110. (y) See ante, p. 550. 
 
 (ir) 11 L. C. Jur. 197 ; see post. (z) 5 Man. L. R. 17 ; see post. 
 
 (x) 2 Western Law Times 1.
 
 582 THE CANADIAN CONSTITUTION. 
 
 We should also note that in Re Claxton (a), one of the 
 Revised Ordinances' (1888) exempting 160 acres of land- 
 from seizure under" execution- was held invalid as repug- 
 nant to the Dominion "Homestead Exemption Act": and 
 this question is one which, as matters now stand, will fre- 
 quently arise, and what is said in chapter V., ante, may l>e 
 of assistance in determining the general principles upon 
 which this question must be solved. 
 
 In Reg. v. Keefe (6) another ordinance was held invalid 
 as being essentially a criminal enactment, the view of the 
 Court of Appeal for Ontario in Reg. v. Wason (c} being 
 avowedly adopted. It is thus put by the Supreme Court 
 of the Territories : 
 
 '* There is no doubt in our minds that the real object and the 
 true nature and character of this legislation . . was in the 
 interest of public morals to create an offence, and not for the 
 protection of private rights." 
 
 Federal Connect ion. 
 
 POWER TO GIVE THE TERRITORIES PART IX THE DETERMINATION OF 
 FEDERAL AFFAIRS IS CONFERRED BY THE FOLLOWING : 
 
 49-50 VICTORIA (!MP.), CHAPTER 35. 
 
 A.D. 1886. An Act respecting the Representation in the 
 Parliament of Canada of Territories which 
 for the time being form part of the Dominion 
 of Canada, but are not included in any 
 Province. 
 
 Jvme, 1886.] 
 
 WHEREAS it is expedient to empower the 
 Parliament of Canada to provide for the 
 representation in the Senate and House of Com- 
 mons of Canada, or either of them, of any 
 
 (a) 1 N. W. T. Hep. 88. (b) Ib. 86. 
 
 (c) See ante, p. 479.
 
 THE NORTH-WEST TERRITORIES. 583 
 
 territory which for the time being forms part of 
 the Dominion of Canada, but is not included in 
 any Province : 
 
 Be it therefore enacted by the Queen's most 
 Excellent Majesty, by and with the advice and 
 consent of the Lords Spiritual and Temporal, 
 and Commons, in this present Parliament assem- 
 bled, and by the authority of the same, as 
 follows : 
 
 1. The Parliament of Canada may, f rom 
 time to time, make provision for the representa- 
 
 tion in the Senate and House of Commons of t ?es. f terri ' 
 Canada, or in either of them, of any territories 
 which for the time being form part of the 
 Dominion of Canada, but are not included in 
 any province thereof. 
 
 2. Any Act passed by the Parliament of Effect of Acts 
 
 <* of Parliament 
 
 Canada before the passing of this Act for the of Canada, 
 purpose mentioned in this Act shall, if not dis- 
 allowed by the Queen, be, and shall be deemed 
 to have been, valid and effectual from the date 
 at which it received the assent, in Her Majesty's 
 name, of the Governor-General of Canada. 
 
 It is hereby declared that any Act passed by 
 the Parliament of Canada, whether before or 
 after the passing of this Act, for the purpose 
 mentioned in this Act or in the British North 
 America Act, 1871, has effect, notwithstanding 
 anything in the British North America Act, 
 1867, and the number of Senators or the number 
 of Members of the House of Commons specified 
 in the last-mentioned Act is increased by the 
 number of Senators or of Members, as the case 
 may be, provided by any such Act of the Par-
 
 584 THE CANADIAN CONSTITUTION. 
 
 liament of Canada for the representation of any 
 provinces or territories of Canada (d). 
 
 short title 3. This Act may be cited as the British 
 
 and construe- . 
 
 tion. North America Act, 1886. 
 
 This Act and the British North America 
 Act, 1867, and the British North America Act, 
 1871, shall be construed together, and may be 
 cited together as the British North America 
 Acts, 1867 to 1886. 
 
 (d) The general effect of this section is discussed, ante, p. 271 (as to 
 the Senate), and ante, p. 282 (as to the House of Commons).
 
 CHAPTER XIV. 
 
 MANITOBA. 
 
 The events leading up to the admission of Rupert's-- 
 Land and the North- Western Territory to the Dominion of 
 Canada have been shortly sketched in the preceding- 
 chapter. Taking up the thread now in reference to Mani- 
 toba, we have to point out that the Act 33 Vic. c. 3, by 
 which that province was established, was validated by 
 Imperial legislation : 
 
 34-35 Vic., CAP. 28. 
 
 An Act respecting the establishment of Provinces in 
 the Dominion of Canada. 
 
 [29th June, 1871.] 
 
 WHEREAS doubts have been entertained 
 respecting the powers of the Parliament 
 of Canada to establish Provinces in Territories 
 admitted, or which may hereafter be admitted 
 into the Dominion of Canada, and to provide 
 for the representation of such Provinces in the 
 said Parliament, and it is expedient to remove 
 such doubts, and to vest such powers in the said 
 Parliament : 
 
 Be it enacted by the Queen's most excellent 
 Majesty, by and with the advice and consent of
 
 586 THE CANADIAN CONSTITUTION*. 
 
 the Lords Spiritual and Temporal, and Com- 
 mons, in this present Parliament assembled, and 
 by the authority of the same, as follows : 
 
 short title. l_. This Act may be cited for all purposes as 
 
 " The British North America Act, 1871." 
 Parliament of *5 . The Parliament of Canada may from 
 
 Canada may 
 
 establish new time to time establish new Provinces in any 
 
 Provinces and * 
 
 the^nstfui- territories forming for the time being part of the 
 thereof' 1 Dominion of Canada, but not included iri any 
 Province thereof, and may, at the time of such 
 establishment, make provision for the .constitu- 
 tion and administration of any such Province, 
 and for the passing of laws for the peace, order, 
 and good government of such Province, and for 
 its representation in the said Parliament. 
 
 Aiterationof 3. 1'he Parliament of Canada may from 
 
 limits of Pro- 
 
 viuces. time to time, with the consent of the Legislature 
 
 of any Province of the said Dominion, increase, 
 diminish, or otherwise alter the limits of such 
 Province, upon such terms and conditions as 
 may be agreed to by the said Legislature, and 
 may, with the like consent, make provision 
 respecting the effect and operation of any such 
 increase or diminution or alteration of territory 
 in relation to any Province affected thereby. 
 
 Parliament of ^. The Parliament of Canada may from 
 
 Canada may / 
 
 a1f is territory time to time make provision for the administra- 
 te, 'provhuL ^ion, peace, order and good government of any 
 
 territory not for the time being included in any 
 
 Province. 
 
 confirmation .5. The following- Acts passed by the said 
 
 of Acts of Par- / 
 
 iiament of Parliament 01 Canada, and intituled respec- 
 
 Canada, 32 & 
 
 33 Viet., (Can), tively : "An Act for the temporary government 
 
 cap. 3, 33 Viet. 
 
 Can), cap. 3. o f Rupert's Land and the North- Western Terri- 
 tory when united with Canada," and "An Act to
 
 MANITOBA. 587 
 
 amend and continue the Act thirty-two and 
 thirty-three Victoria, chapter three, and to 
 establish and provide for the 'government of 
 the Province of Manitoba,"' shall be and be 
 deemed to have been valid and effectual for all 
 purposes whatsoever from the date at which 
 they respectively received the assent, in the 
 Queen's mmie, of the Governor-General of the 
 said Dominion of Canada. 
 
 O. Except as provided by the third section j^J^JSp^J. 
 of this Act, it shall not be competent for the ^Sto'ieg- 
 Parliament of Canada to alter the provisions ^wished 1 
 of the last mentioned Act of the said Parlia- province 
 ment, in so far as it relates to the Province of 
 Manitoba, or of any other Act hereafter estab- 
 lishing new Provinces in the said Dominion, 
 subject always to the right of the Legislature of 
 the Province of Manitoba to alter from time to 
 time the provisions of any law respecting the 
 qualification of electors and members of the 
 Legislative Assembly, and to make laws respect- 
 ing elections in the said Province. 
 
 Under the 3rd section of this Act, the limits of Mani- 
 toba were in 1877- (), and again in 1881 (b), altered and 
 its territory considerably increased. The 6th section is 
 the all-important one, not merely to Manitoba but to any 
 province to be hereafter created. It will tend to retard 
 the creation of new provinces until the Territories are so 
 well settled and organized as to be entitled to the same 
 powers of self-government as are now enjoyed by the older 
 provinces. It would be unfortunate to give the name of a 
 province to any division of the Territories, unless at the 
 same time full provincial autonomy were given. In fact it 
 
 (a) See 40 Vic. c. 6 (Dom.). 
 (1) See 44 Vic. c. 14 (Dom.).
 
 588 THE CANADIAN CONSTITUTION. 
 
 may be doubted if, under the above Act, a province could 
 be created with less power than the provinces named in 
 the B. N. A. Act. However this may be, any Act of the 
 parliament of Canada creative of a new province becomes 
 at once, in effect, an Imperial Act at all events an Act 
 which can be altered by nothing short of Imperial legisla- 
 tion. Such is the position of Manitoba to-day. Her 
 charter is : 
 
 33 Vic., CAP. 3. 
 
 An Act to amend and continue the Act 32 and 33 Victoria, 
 chapter 3 ; and to establish and provide for the Govern- 
 ment of the Province of Manitoba. 
 
 [Assented to 12th May, 1870.} 
 
 Preamble. TTTHEREAS it is probable that Her Majesty 
 The Queen may, pursuant to the British 
 North America Act, 1867, be pleased to admit 
 Rupert's Land and the North-Western Territory 
 into the Union or Dominion of Canada, before 
 the next Session of the Parliament of Canada : 
 
 And Whereas it is expedient to prepare for 
 the transfer of the said Territories to the Gov- 
 ernment of Canada at the time appointed by the 
 Queen for such admission : 
 
 And Whereas it is expedient also to provide 
 for the organization of part of the said Terri- 
 tories as a Province, and for the establishment 
 of a Government therefor, and to make provision 
 for the Civil Government of the remaining part 
 of the said Territories not included within the 
 limits of th6 Province : 
 
 Therefore Her Majesty, by and with the 
 advice and consent of the Senate and House of 
 Commons of Canada, enacts as follows :
 
 MANITOBA. 589 
 
 1. On, from and after the day upon which g f j^ d to 
 the Queen by and with the advice and consent ten-itoin-' W 
 of Her Majesty's Most Honorable Privy Council, 
 
 under the authority of the 146th section of the 
 British North America Act, 1867, shall, by 
 Order in Council in that behalf (c), admit Ru- 
 pert's Land and the North- Western Territory 
 into the Union or Dominion of Canada, there 
 shall be formed out of the same a Province, 
 which shall be one of the Provinces of the Do- 
 minion of Canada, and which shall be called the 
 Province of Manitoba, and be bounded as 
 follows : 
 
 [The boundaries as here defined were after- 
 wards altered, and the area of the Province en- 
 larged. See ante, p. 587 ; also R. 8. C. c. ^7.] 
 
 2. On, from and after the said day on which certain pro- 
 the Order of the Queen in Council shall take B.N.A. Aet, 
 
 & i f 1 .LI xi -D -j.- i 1867. toapply 
 
 enect as aforesaid, the provisions or the .British to Manitoba. 
 North America Act, 1867, shall, except those 
 parts thereof which are in terms made, or by 
 reasonable intendment, may be held to be 
 specially applicable to, or only to affect one or 
 more, but not the whole of the Provinces now 
 composing the Dominion, and except so far as the 
 same may be varied by this Act, be applicable 
 to the Province of Manitoba, in the same way, 
 and to the like extent as they apply to the sev- 
 eral Provinces of Canada, and as if the Province 
 of Manitoba had been one of the Provinces 
 originally united by the said Act. 
 
 3. The said Province shall be represented in f^fn^he* 
 the Senate of Canada by two Members, until Senate - (d - 
 
 (c) The Order in Council bears date 23 June, 1870, and provides for 
 admission on 15 July, 1870. 
 
 (d) Now 3. See R. S. C. c. 12; also ante, p. 268, et seq.
 
 590 
 
 THE CANADIAN CONSTITUTION. 
 
 Bepresenta- 
 tion in the 
 House of 
 Commons (e). 
 
 it shall have, according to decennial census, a 
 population of fifty thousand sou*ls, and from 
 thenceforth it shall be represented therein by 
 three Members, until it shall have, according to- 
 decennial census, a population of seventy-five 
 thousand souls, and from thenceforth it shall 
 be represented therein by four Members. 
 
 4. The said Province shall be represented, in 
 the first instance, in the House of Commons of 
 Canada, by four Members, and for that purpose 
 shall be divided by proclamation of the Gover- 
 nor-General, into four Electoral Districts, each 
 of which shall be represented by one Member : 
 Provided that on the completion of the census in 
 the year 1881, and of each decennial census 
 afterwards, the representation of the said Prov- 
 ince shall be re-adjusted according to the pro- 
 visions of the fifty-first section of the British 
 North Amercia Act, 1867. 
 
 Qualification 5. Until the Parliament of Canada otherwise 
 
 of voters and 
 
 members (/). provides, the qualification of voters at Elections- 
 of Members of the House of Commons shall be 
 the same as for the Legislative Assembly here- 
 inafter mentioned : And no person shall be 
 qualified to be elected, or to sit and vote as a 
 Member for any Electoral District, unless he is 
 a duly qualified voter within the said Province. 
 
 tt. For the said Province there shall be an 
 i tfficer styled the Lieutenant-Governor, appointed 
 by the Governor-General in Council by instru- 
 ment under the Great Seal of Canada. 
 
 Lieutenant- 
 Governor (</). 
 
 (e) Now 7. See 55-56 Vio. c. 11 (Dom.) ; also ante, p. 282, et seq. 
 (/) See ante, p. 285, et seq. The restriction imposed by the latter part 
 of the section has been removed. 
 (g) See ante, p. 300, et seq.
 
 MANITOBA. 591 
 
 7. The Executive Council of the Province 
 shall be composed of such persons, and under 
 such designations, as the Lieutenant-Governor 
 shall, from time to time, think fit ; and, in the 
 first instance, of not more than five persons. 
 
 &. Unless and until the Executive Govern- 
 ment of the Province otherwise directs, the seat ment (l) - 
 of Government of the same shall be at Fort 
 Garry, or within one mile thereof. 
 
 9. There shall be a Legislature for the Prov- Legislature., 
 ince, consisting of the Lieutenant-Governor, 
 and of two Houses (j), styled respectively, the 
 Legislative Council of Manitoba, and the Legis- 
 lative Assembly of Manitoba. 
 
 [Sections 10-13 relate to the defunct Legisla- 
 tive Council.] 
 
 14. The Legislative Assembly shall be com- Legislative 
 
 3 Assembly. 
 
 posed of twenty-four Members, to be elected to 
 represent the Electoral Divisions into which the 
 said Province may be divided by the Lieutenant- 
 Governor, as hereinafter mentioned. 
 
 1*>. The presence of a majority of the Mem- Quorum, 
 bers of the Legislative Assembly shall be neces- 
 sary to constitute a meeting of the House for 
 the exercise of its powers ; and for that purpose 
 the Speaker shall be reckoned as a Member. 
 
 (h) The provisions of this and the following sections, relating to the 
 provincial constitution, have all been the subject of provincial legislation. 
 See R, S. Man. (1888) ; and see also notes to B. N. A. Act, 1867, s. 92, s-s. 1, . 
 antt, p. 420, et seq. 
 
 (i) Now " Winnipeg." 
 
 (j) Now only one. The Legislative Council was abolished by 39 Vic_. 
 c. 29 (Man.); see ante, p. 326.
 
 592 
 
 THE CANADIAN CONSTITUTION. 
 
 Duration of 
 Legislative 
 Assembly (k). 
 
 [Sections 16 to 18 relate to first election*. 
 electoral r//V/vV/.s-. *//// qualijicatwna of voters. 
 They are long since effete.] 
 
 19. Every Legislative Assembly shall con- 
 tinue for four years from the date of the return 
 of the writs for returning the same (subject 
 nevertheless to being sooner dissolved by the 
 Lieutenant-Go vernor), and no longer; and the 
 first Session thereof shall be called at such time 
 as the Lieutenant-Governor shall appoint. 
 
 20. There shall be a Session of the Legisla- 
 ture once at least in every year, so that twelve 
 months shall not intervene between the last 
 sitting of the Legislature in one Session and its 
 first sitting in the next Session. 
 
 21. The following provisions of the British 
 North America Act, 1867, respecting the House 
 of Commons of Canada, shall extend and apply 
 to the Legislative Assembly, that is to say : 
 Provisions relating to the election of a Speaker, 
 originally, and on vacancies, the duties of the 
 Speaker, the absence of the Speaker and the 
 mode of voting, as if those provisions were here 
 re-enacted and made applicable in terms to the 
 Legislative Assembly. 
 
 22. In and for the Province, the said Legis- 
 lature may exclusively make Laws in relation 
 to Education, subject and according to the fol- 
 lowing provisions : 
 
 (1) Nothing in any such law shall prejudi- 
 cially affect any right or privilege with respect 
 
 (A-) See ante, p. 336. 
 
 (1) See ante, p. 337. 
 
 (ro) Compare B. N. A. Act, 1867, s. 87, ante, p. 337. 
 
 (n) This matter is fully dealt with ; ante, p. 489, et seq. 
 
 Sessions at 
 least once a 
 year (I). 
 
 Certain pro- 
 visions of 
 B. N. A. Act, 
 1867, to 
 apply (m). 
 
 Legislation 
 touching 
 schools sub- 
 ject to certain 
 provisions (n).
 
 MANITOBA. 593 
 
 to Denominational Schools which any class of 
 persons have by Law or practice in the Province 
 .at the Union : 
 
 (2) An appeal shall lie to the Governor- 
 general in Council from any Act or decision of 
 the Legislature of the Province, or of any Pro- 
 vincial Authority affecting any right or privilege 
 of the Protestant or Roman Catholic minorit}' of 
 the Queen's subjects in relation to Education : 
 
 (3) In case any such Provincial Law, as from Power 
 
 reserved to 
 
 time to time seems to the Governor-General in Pariiameutr 
 Council requisite for the due execution of the 
 provisions of this section, is not made, or in case 
 any decision of the Governor-General in Council 
 on any appeal under this section is not duly 
 executed by the proper Provincial Authorit}^ in 
 that behalf, then, and in every such case, and as 
 far only as the circumstances of each case 
 require, the Parliament of Canada may make 
 remedial Laws for the due execution of the pro- 
 visions of this section, and of any decision of the 
 Governor-General in Council under this section. 
 
 23. Either the English or the French Ian- English and 
 
 French 
 
 guage may be used by any person in the debates languages to 
 of the Houses of the Legislature, and both those 
 languages shall be used in the respective Records 
 and Journals of those Houses; and either of 
 those languages may be used by any person, or 
 in any Pleading or Process, in or issuing from 
 any Court of Canada established under the 
 British North America Act, 1867, or in or from 
 all or any of the Courts of the Province. The 
 Acts of the Legislature shall be printed and pub- 
 lished in both those languages. 
 
 CAN. Cox. 38
 
 594 THE CANADIAN CONSTITUTION. 
 
 interest 24. Inasmuch as the Province is not in debt.. 
 
 allowed to 
 
 the Province ^he g^ Province shall be entitled to be paid. 
 
 on a certain 
 
 debtof* f the an d to re c e i ve from the Government of Canada^ 
 
 Canada. ^y half-yearly payments in advance, interest at 
 
 the rate of. five per centum per annum on the sum 
 
 of four hundred and seventy-two thousand and 
 
 ninety dollars. 
 
 subsidy to 25. The sum of thirty thousand dollars shall 
 
 the Province 
 
 for support of b e p a id yearly by Canada to the Province, for 
 
 Government, * . 
 
 and in pro- the support of its Government and Legislature. 
 
 portion to its 
 
 population. an( j an annua l grant, in aid of the said Province, 
 shall be made, equal to eighty cents per head of 
 the population, estimated at seventeen thousand 
 souls ; and such grant of eighty cents per head 
 shall be augmented in proportion to the increase 
 of population, as may be shown by the census 
 that shall be taken thereof in the year one thou- 
 sand eight hundred and eighty-one, and by each 
 subsequent decennial census, until its population 
 amounts to four hundred thousand souls, at 
 which amount such grant shall remain there- 
 after, and such sum shall be in full settlement of 
 all future demands on Canada, and shall be paid 
 half-yearly, in advance, to the said Province. 
 
 Canada 26. Canada will assume and defray the 
 
 assumes cer- * 
 
 tain expenses, charges for the following services : 
 
 1. Salary of the Lieutenant-Governor. 
 
 2. Salaries and allowances of the Judges of 
 the Superior and District or County Courts. 
 
 3. Charges in respect of the Department of 
 the Customs. 
 
 4. Postal Department. 
 
 5. Protection of Fisheries. 
 
 6. Militia. 
 
 7. Geological Survey.
 
 MANITOBA. 595 
 
 8. The Penitentiary. 
 
 9. And such further charges as may be 
 incident to, and connected with the services 
 which, by the British North America Act, 1867, 
 appertain to the General Government, and as 
 are or may be allowed to the other Provinces. 
 
 [Sections 27-29 relate to custom sand inland 
 rewnue and are effete.'} 
 
 SO. All ungranted or waste lands in the unwanted 
 
 lauds vested 
 
 Province shall be, from and after the date [^Dominion 
 of the said transfer, vested in the Crown, and Proses >). 
 administered by the Government of Canada for 
 the purposes of the Dominion, subject to, and 
 except and so far as the same may be affected 
 by, the conditions and stipulations contained in 
 the agreement for the surrender of Rupert's 
 Land by the Hudson's Bay Company to Her 
 Majesty. 
 
 3 1 . And whereas, it is expedient, towards Provisions as 
 
 to Indian 
 
 the extinguishment of the Indian Title to the title - 
 lands in the Province, to appropriate a portion 
 of such ungranted lands, to the extent of one 
 million four hundred thousand acres thereof, for 
 the benefit of the families of the half-breed Qrant f 0r half 
 residents, it is hereby enacted, that, under regu- b 
 lations to be from time to time made by the 
 Governor-General in Council, the Lieutenant- 
 Govemor shall select such lots or tracts in such 
 parts of the Province as he may deem expedient, 
 to the extent aforesaid, and divide the same 
 among the children of the half-breed heads of 
 
 (o) See post, for some observations on the position of Manitoba in 
 relation to lands within her borders. 
 
 (p) There has been much legislation by the parliament of Canada in 
 reference to the adjustment of the claims of half-breeds and squatters,, 
 but the subject is hardly within our range.
 
 596 
 
 THE CANADIAN CONSTITUTION. 
 
 Quieting 
 
 titles. 
 
 Grants by 
 H. B. Com- 
 pany. 
 
 The same. 
 
 Titles being 
 occupancy 
 with per- 
 Jiiission; 
 
 By peaceable 
 possession. 
 
 families residing in the Province at the time of 
 the said transfer to Canada, and the same shall 
 be granted to the said children respectively, in 
 such mode and on such conditions as to settle- 
 ment and otherwise, as the Governor-General in 
 Council may from time to time determine. 
 
 32. For the quieting of titles, and assuring 
 to the settlers in the Province the peaceable 
 possession of the lands now held by them, it is 
 enacted as follows : 
 
 1. All grants of land in freehold made by the 
 Hudson's Bay Company up to the eighth day of 
 March, in the year 1869, shall, if required by the 
 owner, be confirmed by grant from the Crown. 
 
 2. All grants of estates less than freehold in 
 land made by the Hudson's Bay Company up to 
 the eighth day of March, aforesaid, shall, if 
 required by the owner, be converted into an 
 estate in freehold by grant from the Crown. 
 
 3. All titles by occupancy with the sanction 
 and under the license and authority of the Hud- 
 son's Bay Company up to the eighth day of 
 March, aforesaid, of land in that part of the 
 Province in which the Indian Title has been 
 extinguished, shall, if required by the owner, be 
 converted into an estate in freehold by grant 
 from the Crown. 
 
 4. All persons in peaceable possession of 
 tracts of land at the time of the transfer to 
 Canada, in those parts of the Province in which 
 the Indian Title has not been extinguished, shall 
 have the right of pre-emption of the same, on 
 such terms and conditions as may be determined 
 by the Governor in Council.
 
 MANITOBA. 597 
 
 5. The Lieutenant-Governor is hereby author- 
 
 Governor to 
 
 ized, under regulations to be made from time to ^ons P unde 
 time by the Governor-General in Council, to council* 
 make all such provisions for ascertaining and 
 adjusting, on fair and equitable terms, the rights 
 of cutting Hay held and enjoyed by the settlers 
 in the Province, and for the commutation of the 
 same by grants of land from the Crown. 
 
 33. The Governor-General in Council shall 
 from time to time settle and appoint the mode 
 and form of Grants of Land from the Crown, 
 and any Order in Council for that purpose when 
 published in the Canada Gazette, shall have the 
 same force and effect as if it were a portion of 
 this Act. 
 
 34. Nothing; in this Act shall in any way Bights' of 
 
 J J H. B. Com- 
 
 preiudice or affect the rights or properties of the pany not 
 
 r J affected. 
 
 Hudson's Bay Company, as contained in the con- 
 ditions under which that Company surrendered 
 Rupert's Land to Her Majesty. 
 
 [Sections So and 36 are long since effete.] 
 
 Enylish Law in Manitoba. 
 
 We have already (q) had occasion to refer to the pro- 
 vision of the first Dominion Statute (32-33 Vic. c. 3), deal- 
 ing with Rupert's Land and the North- Western Territory, 
 which continued in force in that country the laws then in 
 force there. We have also referred (r) to the question as. 
 to what those laws then in force were. This question has-, 
 been much discussed in Manitoba. Its position in this; 
 
 (q) Ante, p. 553. (r) Ante, p. 581,
 
 598 THE CANADIAN CONSTITUTION. 
 
 matter both (1) as to the date upon which such introduc- 
 tion took place, (2) the extent of such introduction, (3) the 
 effect to be given to that ordinance of the old Assiniboia 
 Council, to which we shall have to refer, as well as (4) 
 the extent of the introduction subsequently effected by 
 provincial Acts was considered by the Court of Queen's 
 Bench (s) upon an appeal from the judgment of Killam, J. 
 (t), in Sinclair v. Mulligan. The first three questions are 
 exhaustively discussed in the latter judgment, and the 
 opinions expressed therein were adopted by the full Court, 
 Mr. Justice Dubuc, however, expressing some doubt as t<> 
 the correctness of the construction placed by the other 
 judges upon the Assiniboia ordinance. The holding of the 
 Court may be summed up in the language of Taylor, C.J. : 
 "Until 1870, the law of England, at the date of the Hudson's 
 Bay Company's charter, 1670, was the law in force here, and 
 indeed, except as to matters which have been dealt with by the 
 Dominion parliament, <-. n-Jii<-li are u-ithin tin' juri^Uctinn <>f th< 
 Provincial IfnMature and have Iccn <h*alt with by it, that is the law 
 oi this province at the present day." 
 
 In his judgment, Mr. Justice Killam adopts the view, 
 upon which enough has been said in chapter V., ante, that 
 the question of applicability is one proper for consideration. 
 The ordinance of 1862 (M) he construed as a law regulative 
 of practice and procedure merely, and not as a law bringing 
 forward the date as of which English law, in the general 
 sense of that term, was to be deemed to be introduced into 
 those Territories a question as to which the doubt ex- 
 pressed by Mr. Justice Dubuc seems to have much to sup- 
 port it. In the result, the Statute of Uses was held to be in 
 force, the Statute of Enrolment was held inapplicable, and 
 the Statute of Frauds not to be in force because of date 
 
 (s) 5 Man. L. R. 17. 
 (t) 3 Man. L. R. 481. 
 
 (u) The language of this ordinance was very much the same as that 
 of s. 38 of 34 Vic. c. 2 (Man.), quoted post.
 
 MANITOBA. 599 
 
 subsequent to the H. B. Co.'s charter ; and a verbal bargain 
 as to land was given effect to under the Statute of Uses. 
 
 One of the first Acts of the Manitoba Legislature 
 (34 Vic. c. 2), was to establish a Supreme Court for the 
 province, haying the jurisdiction distributed in England 
 between the Superior Courts of Law and Equity and of 
 Probate. By sections 38, 51 and 52 of this Act it was 
 provided : 
 
 "38. As far as possible consistently with the circumstances 
 of the country the laws of evidence and the principles which 
 govern the administration of justice in England shall obtain in 
 the Supreme Court of Manitoba. 
 
 " 51. So much of the laws of the Governor and Council of 
 Assiniboia as may be inconsistent with this Act, is hereby 
 repealed. 
 
 " 52. So much of the laws of the Governor and Council of 
 Assiniboia as are not repealed by the preceding section, or are 
 not inconsistent with this Act, or with any other Act to be 
 passed during this session, shall be extended to the whole of the 
 province of Manitoba." 
 
 Section 38 would no doubt receive the same construc- 
 tion as the ordinance of 1862 afterwards received in Sin- 
 clair v. Mulligan (see ante}, and be limited to the regulation 
 of practice and procedure, and this statute therefore is of 
 importance upon this question only as putting aside any 
 doubt as to the extent of the territorial operation of the 
 laws of the Assiniboia Council. 
 
 In 1874, by 38 Vic. c. 12 (see Con. Stat. Man., 1880, 
 c. 31), it was enacted : 
 
 " The Court of Queen's Bench (r) shall decide and determine 
 all matters of controversy relative to property and civil rights 
 according to the laws existing, or established and being in 
 England, as such were, existed and stood on the 15th day of 
 July, 1870, so far as the same can be made applicable to matters 
 relating to property and civil rights in this province. . . ." 
 
 (v) "The Supreme Court of Manitoba" was given this name by 35 
 Vic. c. 3.
 
 600 THE CANADIAN CONSTITUTION. 
 
 with a clause as to evidence, and practice and procedure, to* 
 the same effect. Were it not for the sharp distinction 
 drawn between law and practice in this enactment, it- 
 might be contended that, so far as the general adoption of 
 English law is concerned, it should receive the same con- 
 struction as the Assiniboia ordinance of 1862, and be 
 limited to the introduction of English practice and 
 procedure. It has, however, been uniformly treated as 
 introducing general English law as it stood on the 15th of 
 July, 1870, and there can be little doubt that such is its 
 proper construction. 
 
 In reference to the limited operation of any provincial 
 statute introducing English law, it seems impossible to 
 escape from the result indicated by Taylor, C.J., in the 
 passage of his judgment which \ve have italicized (w), 
 From time to time the parliament of Canada has passed 
 statutes introducing certain portions of the statute law of 
 the Dominion, passed prior to 1870, into Manitoba. Statutes 
 since 1870 are of course in force there unless expressly 
 excepted. But there had been no general provision made 
 as to those matters which are within the legislative 
 competence of the Dominion parliament, so that the law in 
 Manitoba as. to all such matters was, until 1888, the 
 English law of 1670. As to matters within the legislative 
 competence of the provincial legislature there has been, as 
 we have seen, such general legislation not, indeed, in 
 terms so confined, but judicially determined to be so 
 limited. In Canadian Bank of Commerce v. Adamsoii (.>') 
 it had been held that the English Bill of Exchange Act 
 (18 & 19 Vic. c. 67), was in force in Manitoba, but this 
 decision was based upon a construction of the ordinance of 
 1862, which was not followed in Sinclair v. Mulligan. 
 However, by 51 Vic. c. 33 (Dom.) for the removal of 
 doubts the difficulty suggested in reference to the intro- 
 duction of English law in relation to matters other than 
 
 (if) Ante, p. 598. (x) 1 Man. L. K. 3.
 
 MANITOBA. 601 
 
 those within the legislative competence of a provincial 
 legislature was removed, and it was enacted that : 
 
 " The laws of England relating to matters within the juris- 
 diction of the parliament of Canada, as the same existed on the 
 loth July, 1870, were from the said day and are in force in the 
 province of Manitoba, in'so far as the same are applicable to the 
 said province, and in so far as the same have not been and are 
 not hereafter repealed, altered, varied, modified, or affected by 
 any Act of the parliament of the United Kingdom applicable to 
 the said province, or of the parliament of Canada." 
 the legal rate of interest, however, being placed at six per 
 cent., as in the other provinces. 
 
 The same principle in reference to the introduction of 
 English statutory law of local application in England has 
 been invoked in Manitoba, as in the older provinces (y\ 
 In Attorney-General v. Richard (z), it was held by Chief 
 Justice Wallbridge, that the Imperial statute 18 & W 
 Vic. c. 90, under which costs may be ordered against the 
 Crown in England, was not introduced into Manitoba by 
 the provincial Act to which we have above referred : 
 
 " That Act is local as to England, and required a special 
 Act to make it applicable to the Isle of Man ; besides, the manner 
 of obtaining costs pointed out under it could not apply here. 
 We have not the officers, or the means territorially of enforcing 
 a demand for costs, and the court will not make a decree which 
 it cannot enforce." 
 
 PuMic Lan<l* in Manitoba. 
 
 Upon the formation of the province of Manitoba (a), 
 provision was made for the administration by the Governor 
 in Council of the public lands of that province as a federal 
 asset. Statutes have from time to time been passed 
 making provision for the issue of Letters Patent granting 
 such lands to purchasers from the Hudson's Bay- Co., ta 
 
 (j/) Ante, p. 120. (z) 4 Man. L. R. 336. 
 
 (a) See 33 Vic. c. 3, s. 80, ante, p. 595.
 
 602 THE CANADIAN CONSTITUTION. 
 
 half-breeds, squatters, and subsequent settlers (6). A lar-v 
 portion has been granted to the Canadian Pacific Railway 
 Co., under the terms of its charter, and up to the present 
 time the only concession to the province is that contained 
 in R. S. C. c. 47, under which swamp lands are to be trans- 
 ferred to the province, and an endowment of 150.000 acres 
 is provided for the University of Manitoba. The addi- 
 tional territory since annexed to the province is in the 
 same position, being subject moreover to interests acquired 
 therein, prior to such annexation, under Dominion legis- 
 lation. 
 
 A very interesting question came before the Court of 
 Queen's Bench in Manitoba, in 1891, in reference to the 
 power of the Canadian Pacific Railway Co. to hold land in 
 that province without taking out the license required b}- 
 provincial statutes (c). In delivering the judgment of the 
 Court, Mr. Justice Killam says : 
 
 "By the Act, 49 Vic. c. 11, s. 4 (Man.), 'No company, 
 corporation, or other institution not incorporated under the 
 provisions of the statutes of this province, shall be capable of 
 taking, holding, or acquiring any real estate within tins province 
 unless under license from the Lieutenant-Governor in Council, 
 under any statute of this province.' Several statutes have, from 
 time to time, been passed by the provincial legislature, author- 
 izing the issue of licenses to corporations, permitting them to 
 take and hold lands or securities upon lauds in Manitoba. These 
 have been repealed and consolidated and to some extent 
 amended by the Act, 53 Vic. c. 23, s. 15 (Man.). The C. P. R. 
 <Co. has taken out no license under any of these statutes. 
 By the Act, 44 Vic. c. 14 (Dom.), provision was made for the 
 extension of Manitoba by including within it certain territory, 
 formerly a portion of the North-West Territories. One term of 
 this extension was, as provided by section 2, sub-section (1) : 
 * The said increased limit and territory thereby added to the 
 province of Manitoba shall be subject to all such provisions as 
 
 (b) See R. S. C c. 48. 
 
 (c) 7 Man. L. R. 389 Re C. P. R. Co.
 
 MANITOBA. 603 
 
 may have been, or shall hereafter be enacted respecting the 
 C. P. R., and the lands to be granted in aid thereof.' The 
 assent of the Legislature of Manitoba to this extension and its 
 terms was given by the Acts 44 Vic. (3rd session) c. 1 and 6, 
 assented to respectively the 4th March and 21st May, 1881. The 
 extension took effect the 1st July, 1881. . . . Before the 
 territory in question was included in Manitoba, and when the 
 Act 44 Vic. c. 1 (Dom.) was passed, that territory was not in- 
 cluded in any province, and was subject fully to the legislative 
 authority of the parliament of Canada in all matters. What- 
 ever, then, might be the position in the provinces, that parlia- 
 ment could authorize any corporation to take and hold lands in 
 the North-West Territories. It is difficult to conceive any more 
 effectual mode of conferring such a power than is exhibited in 
 the statute 44 Vic. c. 1 (Dom.), the contract and the charter. 
 And, to wind up the transaction, the lands are to be granted to 
 the Company by the letters patent of the Crown." 
 
 As an indemnity, however, for the want of public lands, 
 the province receives, in addition to other subsidy, a sub- 
 sidy of 8100,000 per annum from the federal government.
 
 CHAPTER XV. 
 
 BRITISH COLUMBIA. 
 
 The proceedings which culminated in the admission of 
 British Columbia to the Union sufficiently appear in the 
 following : 
 
 ORDEK IN COUNCIL 
 
 RESPECTING 
 
 THE PROVINCE OF BRITISH COLUMBIA (</). 
 
 A 
 
 T the Court at Windsor, the 16th day of May, 1871. 
 
 PRESENT. 
 
 The QUEEN'S MOST Excellent Majesty. 
 His Royal Highness Prince ARTHUR. 
 
 Lord Pi-ivy Seal. Lord Chamberlain, 
 
 Earl Cowper. Mr. Secretary Card well. 
 
 Earl of Kimberley. Mr. Ayrton. 
 
 WHEREAS by the " British North America Act, *867/> 
 provision was made for the Union of the Provinces 
 of Canada, Nova Scotia and New Brunswick into the 
 
 (d) See Com. Stat., 1872, p. Ixxxiv. See also B. N. A. Act, s. 146.
 
 BRITISH COLUMBIA. 605 
 
 Dominion of Canada, and it was (amongst other things) 
 enacted that it should be lawful for the Queen, by and with 
 the advice of Her Majesty's Most Honourable Privy Coun- 
 cil, on Addresses from the Houses of Parliament of Canada, 
 and of the Legislature of the Colony of British Columbia, 
 to admit that Colony into the said Union, on such terms 
 and conditions as should be in the Addresses expressed, and 
 as the Queen should think fit to approve, subject to the 
 provisions of the said Act ; And it was further enacted 
 that the provisions of any Order in Council in that behalf 
 should have effect as if they had been enacted by the Par- 
 liament of the United Kingdom of Great Britain and 
 Ireland : 
 
 And whereas by Addresses from the Houses of the Par- 
 liament of Canada, and from the Legislative Council of 
 British Columbia respectively, of which Addresses copies 
 are contained in the Schedule to this Order annexed, Her 
 Majesty was prayed, by and with the advice of Her Most 
 Honourable Privy Council, under the one hundred and 
 forty-sixth section of the hereinbefore recited Act, to admit 
 British Columbia into the Dominion of Canada, on the 
 terms and conditions set forth in the said Addresses : 
 
 And whereas Her Majesty has thought fit to approve of 
 the said terms and conditions, it is hereby declared by Her 
 Majesty, by and with the advice of Her Privy Council, in 
 pursuance and exercise of the powers vested in Her 
 Majesty by the said Act of Parliament, that from and 
 after the twentieth day of July, one thousand, eight 
 hundred and seventy-one, the said Colony of British 
 Columbia shall be admitted into and become pari of the 
 Dominion of Canada, upon the terms and conditions set 
 forth in the hereinbefore recited Addresses. And, in 
 accordance with the terms of the said Addresses relating 
 to the Electoral Districts of British Columbia, for which 
 the first election of members to serve in the House of Com- 
 mons of the said Dominion shall take place, it is hereby
 
 606 THE CANADIAN CONSTITUTION. 
 
 further ordered and declared that such electoral districts 
 
 shall be as follows : 
 
 [Here follows cm enumeration of these electoral < 1 istrictSi] 
 And the Right Honorable Earl of Kimberley, one of 
 
 Her Majesty's Principal Secretaries of State, is to give the 
 
 necessary directions therein accordingly. 
 
 ARTHUR HELPS. 
 
 Address of the Senate of Canada (e). 
 To the Queen's Most Excellent Majesty. 
 Most Gracious Sor<>n'i</n, 
 
 We, Your Majesty's most dutiful and loyal subjects, the 
 Senate of Canada in Parliament assembled, humbly 
 approach Your Majesty for the purpose of representing : 
 
 That by a despatch from the Governor of British 
 Columbia, dated 23rd January, 1871, with other papers 
 laid before this House, by message from His Excellency 
 the Governor-General, of the 27th February last, this 
 House learns that the Legislative Council of that colony, 
 in council assembled, adopted, in January last, an Address 
 representing to Your Majesty that British Columbia was 
 prepared to enter into Union with the Dominion of 
 Canada, upon the terms and conditions mentioned in the 
 said Address, which is as follows : 
 
 To the Queen's Most Excellent Majesty. 
 
 .\hixt (T radon* ^ 
 
 We, Your Majesty's most dutiful and loyal subjects, the 
 .Members of the Legislative Council of British Columbia, 
 (e) The address of the House of Commons is identical in its terms.
 
 BRITISH COLUMBIA. 607 
 
 in council assembled, humbly approach Your Majesty for 
 the purpose of representing : 
 
 That, during the last session of the late Legislative 
 Council, the subject of the admission of the Colony of 
 British Columbia into the Union or Dominion of Canada 
 was taken into consideration, and a resolution on the 
 subject was agreed to, embodying the terms upon which it 
 was proposed that this colony should enter the Union ; 
 
 That after the close of the session, Delegates were 
 sent by the Government of this Colony to Canada to 
 confer with the Government of the Dominion with respect 
 to the admission of British Columbia* into the Union upon 
 the terms proposed ; 
 
 That after considerable discussion by the Delegates 
 with the Members of the Government of the Dominion of 
 Canada, the terms and conditions hereinafter specified 
 were adopted by a Committee of the Privy Council of 
 Canada, and were by them reported to the Governor- 
 General for his approval ; 
 
 That such terms were communicated to the Govern- 
 ment of this Colony by the Governor-General of Canada, 
 in a despatch dated July 7th, 1870, and are as follows : 
 
 1. Canada shall be liable for the debts and liabilities of 
 British Columbia existing at the time of the Union. 
 
 2. British Columbia not having incurred debts equal to 
 those of the other Provinces now constituting the Dominion, 
 shall be entitled to receive, by half-yearly payments in 
 advance, from the General Government, interest at the rate 
 of live per cent, per annum on the difference between the 
 actual amount of its indebtedness at the date of the 
 Union, and the indebtedness per head of the population of 
 Xova Scotia and New Brunswick (27.77 dollars), the popu- 
 lation of British Columbia being taken at 60,000. 
 
 3. The following sums shall be paid by Canada to 
 British Columbia for the support of its Government and
 
 '608 THE CANADIAN CONSTITUTION. 
 
 Legislature, to wit, an annual subsidy of 35,000 dollars, 
 and an annual grant equal to 80 cents per head of the said 
 population of 60,000, both half-yearly in advance, such 
 grant of 80 cents per head to be augmented in proportion 
 to the increase of population, as may be shown by each 
 subsequent decennial census, until the population amounts 
 to 400,000, at which rate such grant shall thereafter 
 remain, it being understood that the first census be taken 
 in the year 1881. 
 
 4. The Dominion will provide an efficient mail service, 
 fortnightly, by steam communication between Victoria and 
 
 o */ ' v 
 
 San Francisco, and Uvice a week between Victoria and 
 Olympia ; the vessels to be adapted for the conveyance of 
 freight and passengers. 
 
 5. Canada will assume and defray the charges for the 
 following services : 
 
 A. Salary of the Lieutenant-Governor ; 
 
 B. Salaries and allowances of the Judges of the Supe- 
 
 rior Courts and the County or District Courts : 
 
 C. The charges in respect to the Department of 
 
 Customs ; 
 
 D. The Postal and Telegraph Services ; 
 
 E. Protection and encouragement of Fisheri< 
 
 F. Provision for the Militia ; 
 
 G. Lighthouses, Buoys and Beacons, Shipwrecked Crews, 
 
 Quarantine and Marine Hospitals, including a 
 Marine Hospital at Victoria ; 
 H. The Geological Survey ; 
 I. The Penitentiary ; 
 
 And such further charges as may be incident to and con- 
 nected with the services which by the "British North 
 America Act, 1867," appertain to the General Government, 
 and as are or may be allowed to the other Provinces. 
 
 6. Suitable pensions, such as shall be approved of by 
 Her Majesty's Government, shall be provided by the Gov-
 
 BRITISH COLUMBIA. 609 
 
 ernment of the Dominion for those of Her Majesty's 
 servants in the Colony whose position and emoluments 
 derived therefrom would be affected by political changes 
 on the admission of British Columbia into the Dominion of 
 Canada. 
 
 7. It is agreed that the existing Customs tariff and 
 Excise duties shall continue in force in British Columbia 
 until the railway from the Pacific coast and the system of 
 railways in Canada are connected, unless the Legislature of 
 British Columbia should sooner decide to accept the Tariff 
 and Excise Laws of Canada (/). When Customs and 
 Excise duties are, at the time of the union of British 
 Columbia with Canada, leviable on any goods, wares or 
 merchandise in British Columbia, or in the other Provinces 
 of the Dominion, those goods, wares and merchandise may, 
 from and after the Union, be imported into British Colum- 
 bia from the Provinces now composing the Dominion, or 
 into either of those Provinces from British Columbia on 
 proof of payment of the Customs or Excise duties leviable 
 thereon in the Province of exportation and on payment of 
 such further amount (if any) of Customs or Excise duties 
 as are leviable thereon in the Province of importation. 
 This arrangement to have no force or effect after the assim- 
 ilation of the Tariff and Excise duties of British Columbia 
 with those of the Dominion. 
 
 8. British Columbia shall be entitled to be represented 
 in the Senate by three members, and by six members in the 
 House of Commons. The representation to be increased 
 under the provisions of " British North America Act, 
 1867." 
 
 9. The influence of the Dominion Government will be 
 used to secure the continued maintenance of the naval 
 station at Esquimalt. 
 
 (/) See 35 V. c. 37. On 27th March, 1872, British Columbia decided 
 to accept the Canadian tariff, hence the enactment. 
 CAN. Cox. 39
 
 610 THE CANADIAN CONSTITUTION. 
 
 10. The provisions of the "British North America Act, 
 1867" shall (except those parts thereof which are in />'/</<. 
 made, or by reasonable intendment may be held to be 
 specially applicable to and only effect one and not the 
 whole of the Provinces comprising the Dominion, a ml 
 except so far as the same may be varied by this Minute) 
 be applicable to British Columbia in the same way an<l to 
 the like extent as they apply to the other Provinces of the 
 Dominion, and as if the Colony of British Columbia //"</ 
 been one of the Provinces originally united by the *<"</ 
 Act. 
 
 11. The Government of the Dominion undertake to 
 secure the commencement simultaneously, within two years 
 from the date of the Union, of the construction of a railway 
 from the Pacific towards the Kocky Mountains, and from 
 such point as may be selected east of the Rocky Mountains, 
 towards the Pacific, to connect the seaboard of British 
 Columbia with the railway system of Canada ; and further, 
 to secure the completion of such railway within ten years 
 from the date of the Union. 
 
 And the Government of British Columbia agree to 
 convey to the Dominion Government in trust, to be appro- 
 priated in such manner as the Dominion Government may 
 deem advisable in furtherance of the construction of the 
 said railway, a similar extent of public lands (g) along the 
 line of railway throughout its entire length in British 
 Columbia (not to exceed, however, twenty (20) miles on 
 each side of said line,) as may be appropriated for the same 
 purpose by the Dominion Government from the public 
 lands of the North-West Territories and the Province of 
 Manitoba : Provided that the quantity of land which may 
 be held under pre-emption right or by Crown grant 
 within the limits of the tract of land in British Columbia 
 to be so conveyed to the Dominion Government shall be 
 
 (g) See Attorney-General of British Columbia v. Attorney-General 
 of Canada, 14 App. Gas. 295 ; noted, ante, p. 530.
 
 BRITISH COLUMBIA. 611 
 
 made good to the Dominion from contiguous public lands; 
 and provided further, that until the commencement, within 
 two years, as aforesaid, from the date of the Union, of the 
 construction of the said railway, the Government of British 
 Columbia shall not sell or alienate any further portions of 
 the public lands of British Columbia in any other way than 
 under right of pre-emption requiring actual residence of the 
 pre-emptor on the land claimed by him. In consideration of 
 the land to be so conveyed in aid of the construction of the 
 said railway, the Dominion Government agree to pay 
 to British Columbia from the date of the Union, the sum 
 of 100,000 dollars per annum, in half-yearly payments in 
 advance. 
 
 12. The Dominion Government shall guarantee the 
 interest for ten years from the date of the completion of 
 the works, at the rate of five per centum per annum, on 
 such sum, not exceeding 100,000 sterling, as may be 
 required for the construction of a first-class graving dock 
 at Esquimalt. 
 
 13. The charge of the Indians, and the trusteeship and 
 management of the lands reserved for their use and benefit, 
 shall be assumed by the Dominion Government, and a 
 policy as liberal as that hitherto pursued by the British 
 Columbia Government shall be contiuued by the Dominion 
 Government after the Union. 
 
 To carry out such policy, tracts of land of such extent 
 as it has hitherto been the practice of the British Columbia 
 Government to appropriate for that purpose, shall from 
 time to time be conveyed by the Local Government to the 
 Dominion Government in trust for the use and benefit of 
 the Indians on application of the Dominion Government ; 
 and in case of disagreement between the two Govern- 
 ments respecting the quantity of such tracts of land to be 
 so granted, the matter shall be referred for the decision of 
 the Secretary of State for the Colonies.
 
 612 THE CANADIAN CONSTITUTION. 
 
 14. The Constitution of the Executive Authority and 
 of the Legislature of British Columbia shall, subject to the 
 provisions of the " British North America Act, 1867," con- 
 tinue as existing at the time of the Union until altered 
 under the authority of the said Act, it being at the same 
 time understood that the Government of the Dominion 
 will readily consent to the introduction of responsible 
 government when desired by the inhabitants of British 
 Columbia, and it being likewise understood that it is the 
 intention of the Governor of British Columbia, under the 
 authority of the Secretary of State for the Colonies, to 
 amend the existing Constitution of the Legislature by 
 providing that a majority of its Members shall be elective. 
 
 The Union shall take effect according to the foregoing 
 terms and conditions on such day as Her Majesty by and 
 with the advice of Her Most Honorable Privy Council 
 may appoint (on addresses from the Legislature of the 
 Colony of British Columbia and of the Houses of Parlia- 
 ment of Canada in the terms of the 146th section of the 
 " British North America Act, 1867,") and British Columbia 
 may in its address specify the electoral districts for which 
 the first election of Members to serve in the House of 
 Commons shall take place. 
 
 That such terms have proved generally acceptable to 
 the people of this Colony. 
 
 That this Council is, therefore, willing to enter into 
 Union with the Dominion of Canada upon such terms, and 
 humbly submit that, under the circumstances, it is expedient 
 that the admission of this Colony into such Union, as 
 aforesaid, should be effected at as early a date as may be 
 found practicable under the provisions of the 146th section 
 of the " British North America Act, 1867. 
 
 We, therefore, humbly pray that Your Majesty will be 
 graciously pleased, by and with the advice of Your 
 Majesty's Most Honorable Privy Council, under the pro- 
 visions of the 146th section of " British North America
 
 BRITISH COLUMBIA. 613 
 
 Act, 1867," to admit British Columbia into the Union or 
 Dominion of Canada, on the basis of the terms and condi- 
 tions offered to this Colony by the Government of the 
 Dominion of Canada, hereinbefore set forth; and inasmuch 
 as by the said terms British Columbia is empowered in its 
 address to specify the electoral districts for which the first 
 election of members to serve in the House of Commons 
 shall take place, we humbly pray that such electoral 
 districts may be declared, under the Order in Council, to be 
 as follows : (Here folloivs an enumeration of such districts. 
 See now R. S. C. c. 6). 
 
 We further humbly represent, that the proposed terms 
 and conditions of Union of British Columbia with Canada, 
 as stated in the said Address, are in conformity with those 
 preliminarily agreed upon between delegates from British 
 Columbia and the Members of the Government of the 
 Dominion of Canada, and embodied in a Report of a Com- 
 mittee of the Privy Council, approved by His Excellency 
 the Governor-General in Council, on the 1st July, 1870, 
 which approved Report is as follows : 
 
 Copy of a Report of a Committee of the Honorable the 
 *& Privy Council, approved by His Excellency the 
 
 Governor-General in Council, on the 1st of July, 
 
 1870. 
 
 The Committee of the Privy Council have had under 
 consideration a Despatch, dated the 7th May, 1870, from 
 the Governor of British Columbia, together with certain 
 Resolutions submitted by the Government of that colony 
 to the Legislative Council thereof both hereunto annexed 
 on the subject of the proposed Union of British 
 Columbia with the Dominion of Canada; and after several 
 interviews between them and the Honorable Messrs. 
 Trutch, Helmcken and Can-all, the Delegates from British 
 Columbia, and full discussion with them of the various 
 questions connected with that important subject, the Com- 
 mittee now respectfully submit for Your Excellency's
 
 614 THE CANADIAN CONSTITUTION. 
 
 approval, the following terms and conditions to form the 
 basis of a political union between British Columbia and 
 the Dominion of Canada: (Setting out such terms as- 
 before). 
 
 (Certified.) WM. H. LEE, 
 
 Clerk Privy Council. 
 
 We further humbly represent that we concur in the 
 terms and conditions of Union set forth in the said 
 Address, and approved Report of the Committee of the 
 Privy Council above mentioned; and most respectfully 
 pray that your Majesty will be graciously pleased, by and 
 with the advice of your Majesty's most Honorable Privy 
 Council, under the 146th clause of "The British North 
 America Act, 1867," to unite British Columbia with the 
 Dominion of Canada, on the terms and conditions above 
 set forth. 
 
 The Senate, Wednesday, April 5th, 1871. 
 
 (Signed.) JOSEPH CAUCHON, Speaker. 
 
 Provincial Constitution. 
 
 Before the Union took effect, British Columbia Tiad 
 made the intended alteration referred to in item 14, above 
 by Act of the colonial legislature (No. 147 of 34 Vic.) This 
 statute recites an Imperial Order in Council of 9th August, 
 1870, which established in the colony a legislative council, 
 consisting of nine elective and six non-elective members,, 
 and which gave power to the Governor of the colony, with 
 the advice and consent of the legislative council, to make 
 laws for the peace, order, and good government of the 
 colony; it recites also the Colonial Laws Validity Act, 
 1865 (/<-), as sufficient warrant for the contemplated change 
 in the colonial constitution ; and then proceeds to abolish 
 the legislative council and to establish in its stead a legis- 
 
 (h) See ante, p. 422. See the Act in Appendix.
 
 BRITISH COLUMBIA. 615 
 
 lative assembly of wholly elective members. The present 
 provincial constitution can be studied in the Consolidated 
 Statutes of the province (1888) chapter 22. 
 
 Introduction of English Law. 
 
 In the same session (by Act ^o. 70 of 34 Vic.) it was 
 provided that 
 
 "The civil and criminal laws of England, as the same existed 
 on the 19th day of November, 1858, and so far as the same are 
 not from local circumstances inapplicable, are and shall be in 
 force in all parts of the colony of British Columbia." 
 
 This statute was held (i) to introduce the English 
 Matrimonial Causes Act, 1857," Chief Justice Begbie, 
 however, dissenting from the judgment of the majority, 
 the local circumstances of the colony precluding, in his 
 opinion, its operation therein. 
 
 In Reynolds v. Vaughan (j), it was held that under this 
 statute Imperial Orders in Council, even though passed 
 pursuant to Imperial statutes which were themselves in 
 force in the colony, would not operate therein, unless made 
 specially applicable by subsequent Imperial or colonial 
 enactment. 
 
 We may note also the case of Sproule v. Reg. (k), in 
 which is discussed the question as to the operation of pro- 
 vincial jury laws in criminal cases. It includes in " organi- 
 zation " some matters in reference to the procurement of a 
 jury, which in Ontario were deemed matters of " procedure," 
 and in this view upholds provincial legislation even apart 
 from the Dominion Criminal Procedure Act. 
 
 Reference to the decisions of the British Columbia 
 courts particularly those of date closely following the 
 admission of the province discloses that very extreme 
 
 (i) M. falsely called S. v. S., 1 B. C. Eep. 25. 
 
 (j) 1 B. C. Rep. 3. 
 
 (/;) 2 B. C. Eep. 219 ; see ante, p. 417.
 
 616 THE CANADIAN CONSTITUTION. 
 
 views were entertained as to the predominancy of the 
 parliament of Canada over the provincial legislatures. The 
 formula (I) enunciated in Fredericton v. Reg. was adopted, 
 and in the " Thrasher " Case (m) carried to lengths which 
 in view of the later decisions cannot be maintained. We 
 should, however, note that in British Columbia have arisgn 
 the only cases in reference to the power of a provincial 
 legislature to legislate in regard to aliens. The " Chinese 
 Tax Act, 1878," was held () ultra vires as an infringement 
 upon the power of the Dominion parliament over trade and 
 commerce and over aliens, and as inconsistent with the 
 provisions of section 132 of the B. N. A. Act, vesting in 
 that parliament power to pass laws in aid of the treaty 
 obligations of the Empire so far as they affect Canada. 
 In two later cases (o) the same principle was applied, and a 
 provincial Act imposing a differential tax upon Chinese 
 miners was also held invalid. 
 
 By R. S. C. c. 144, s. 2, it is provided : 
 
 2. The criminal law of England as it stood on the 19th day 
 of November, in the year 1858. and as the same has since been 
 repealed, altered, varied, modified or affected by any ordinance 
 or Act (still having the force of law) of the colony of British 
 Columbia, or of the colony of Vancouver Island before the Union 
 of such colonies, or of the colony of British Columbia passed 
 since such Union, or by any Act of the parliament of Canada, 
 shall be the criminal law of the province of British Columbia. 
 
 In view of the recent codification of our criminal law. it 
 is not worth while to discuss the effect of this enactment 
 on the Colonial Act which made "applicability" the test (p), 
 of the introduction into the colony of English law. 
 
 (I) See ante, p. 206. 
 (m) 1 B. C. Rep. 153. 
 
 (H) Tai Sing v. Maguire, 1 B. C. Rep. 101 Mr. Justice Gray. 
 (o) Reg. v. Wing Chong, 2 B. C. Rep. 150; Reg. v. Gold Commis- 
 sioners of Victoria, ib. 260 Sup. Ct. B. C.; see also notes to s. 91, s-s. 25. 
 ( p) See ante, p. 615 ; see also chapter V. upon the general question.
 
 CHAPTER XVI. 
 
 PRINCE EDWARD ISLAND. 
 
 The admission of Prince Edward Island to the Dominion 
 was effected by the following Order in Council : 
 
 At the Court at Windsor, the 26th day of June, 1873. 
 
 PRESENT : 
 
 The QUEEN'S Most Excellent Majesty. 
 
 Lord President. Earl of Kimberley. 
 
 Earl Granville. Lord Chamberlain. 
 
 Mr. Gladstone. 
 
 TT/HEREAS by the "British North America Act, 1867," 
 ' * provision was made for the Union of the Provinces 
 of Canada, Nova Scotia and New Brunswick into the 
 Dominion of Canada, and it was (amongst other things) 
 enacted that it should be lawful for the Queen, by and 
 with the advice of Her Majesty's Most Honorable Privy 
 Council, on Addresses from the Houses of the Parliament 
 of Canada, and of the Legislature of the Colony of Prince 
 Edward Island, to admit that Colony into the said Union 
 on such terms and conditions as should be in the Addresses 
 expressed, and as the Queen should think fit to approve, 
 subject to the provisions of the said Act; and it was 
 further enacted that the provisions of any Order in
 
 618 THE CANADIAN CONSTITUTION. 
 
 Council in that behalf, should have effect as if they had 
 been enacted by the Parliament of the United Kingdom of 
 Great Britain and Ireland. 
 
 And whereas by Addresses from the Houses of the 
 Parliament of Canada, and from the Legislative Council 
 and House of Assembly of Prince Edward Island respec- 
 tively, of which Addresses, copies are contained in the 
 Schedule to this Order annexed, Her Majesty was prayed, 
 by and with the advice of Her Most Honorable Privy 
 Council, under the one hundred and forty-sixth section of 
 the hereinbefore recited Act, to admit Prince Edward 
 Island into the Dominion of Canada, on the terms and 
 conditions set forth in the said Addresses. 
 
 And whereas Her Majesty has thought fit to approve of 
 the said terms and conditions, it is hereby ordered and 
 declared by Her Majesty, by and with the advice of Her 
 Privy Council, in pursuance and exercise of the powers 
 vested in Her Majesty, by the said Act of Parliament, that 
 from and after the first day of July, one thousand eight 
 hundred and seventy-three, the said Colony of Prince 
 Edward Island shall be admitted into and become part of 
 the Dominion of Canada, upon the terms and conditions 
 set forth in the hereinbefore cited Addresses. 
 
 And in accordance with the terms of the said Addresses 
 relating to the Electoral Districts for which, the time 
 within which, and the laws and provisions under which 
 the first election of members to serve in the House of 
 Commons of Canada, for such Electoral Districts shall be 
 held, it is hereby further ordered and declared that 
 " Prince County " shall constitute one district, to be 
 designated " Prince County District," and return two 
 members ; that " Queen's County " shall constitute one 
 district, to be designated " Queen's County District," and 
 return two members ; that " King's County " shall consti- 
 tute one district, to be designated "King's County District," 
 and return two members ; that the election of members to
 
 PRINCE EDWARD ISLAND. 61 & 
 
 serve in the House of Commons of Canada, for such Elec- 
 toral Districts shall be held within three calendar months 
 from the day of the admission of the said Island into the 
 Union or Dominion of Canada ; that all laws which at the 
 date of this Order in Council relating to the qualification 
 of any person to be elected or sit or vote as a member of 
 the House of Assembly of the said Island, and relating to 
 the qualifications or disqualifications of voters, and to the 
 oaths to be taken by voters, and to Returning Officers and 
 Poll Clerks, and their powers and duties, and relating to 
 Polling Divisions within the said Island, and relating to 
 the proceedings at elections, and to the period during 
 which such elections may be continued, and relating to 
 the trial of controverted elections, and the proceedings 
 incidental thereto, and relating to the vacating of seats of 
 the members, and to the execution of new writs, in case of 
 any seat being vacated otherwise than by a dissolution, 
 and to all other matters connected with or incidental to 
 elections of members to serve in the House of Assembly of 
 the said Island, shall apply to elections of members to 
 serve in the House of Commons for the Electoral Districts 
 situate in the said Island of Prince Edward. 
 
 And the Right Honorable Earl of Kimberley, one of 
 Her Majesty's Principal Secretaries of State, is to give the 
 necessary directions herein, accordingly. 
 
 ARTHUR HELPS. 
 
 SCHEDULE. 
 
 To the QUEEN'S Most Excellent Majesty. 
 Most Gracious Sorereiyn, 
 
 We, Your Majesty's most dutiful and loyal subjects, 
 the Commons of the Dominion of Canada in Parliament 
 assembled, humbly approach Your Majesty for the purpose 
 of representing :
 
 620 THE CANADIAN CONSTITUTION. 
 
 That during the present Session of Parliament we have 
 taken into consideration the subject of the admission of 
 the Colony of Prince Edward Island into the Union or 
 Dominion of Canada, and have resolved that it is expedient 
 that such admission should be effected at as early a date as 
 may be found practicable, under the one hundred* ami 
 forty-sixth section of the "British North America Act, 
 1867," on the conditions hereinafter set forth, which 
 having been agreed upon with the Delegates from the said 
 Colony ; that is to say : 
 
 That Canada shall be liable for the debts and liabilities 
 of Prince Edward Island at the time of the Union ; 
 
 That in consideration of the large expenditure author- 
 ized by the Parliament of Canada for the construction of 
 railways and canals, and in view of a possibility of a re-ad- 
 justrnent of the financial arrangements between Canada and 
 the several Provinces now embraced in the Dominion, as 
 well as the isolated and exceptional condition of Prince 
 Edward Island, that Colony shall, on entering the Union, 
 be entitled to incur a debt equal to fifty dollars per head 
 of its population, as shewn by the Census Returns of 1871, 
 that is to say : four millions seven hundred and one thou- 
 sand and fifty dollars ; 
 
 That Prince Edward Island not having incurred debts 
 equal to the sum mentioned in the next preceding Resolu- 
 tion, shall be entitled to receive, by half-yearly payments, 
 in advance, from the General Government, interest at the 
 rate of five per cent, per annum on the difference, from 
 time to time, between the actual amount of its indebted- 
 ness and the amount of indebtedness authorized as aforesaid, 
 viz., four millions seven hundred and one thousand and 
 fifty dollars ; 
 
 That Prince Edward Island shall be liable to Canada for 
 the amount (if any) by which its public debt and liabilities 
 at the date of the Union, may exceed four millions seven 
 hundred and one thousand and fifty dollars and shall be
 
 PRINCE EDWARD ISLAND. 621 
 
 chargeable with interest at the rate of five per cent, per 
 annum on such excess ; 
 
 That as the Government of Prince Edward Island holds 
 no land from the Crown, and consequently enjoys no 
 revenue from that source for the construction and main- 
 tenance of local works, the Dominion Government shall pay 
 by half-yearly instalments, in advance, to the Government 
 of Prince Edward Island, forty-five thousand dollars per 
 annum, less interest at five per cent, per annum, upon any 
 sum not exceeding eight hundred thousand dollars which 
 the Dominion Government may advance to the Prince 
 Edward Island Government for the purchase of lands now 
 held by large proprietors ; 
 
 That in consideration of the transfer to the Parliament 
 of Canada of the powers of taxation, the following sums 
 shall be paid yearly by Canada to Prince Edward Island, for 
 the support of its Government and Legislature, that is to 
 say, thirty thousand dollars and an annual grant equal to 
 eighty cents per head of the population, as shown by the 
 Census returns of 1871, viz., 94,021, both by half-yearly 
 payments in advance, such grant of eighty cents per head 
 to be augmented in proportion to the increase of population 
 of the Island as may be shown by each subsequent decen- 
 nial Census, until the population amounts to four hundred 
 thousand, at which rate such grant shall thereafter remain 
 it being understood that the next Census shall be taken in 
 the year 1881 ; 
 
 That the Dominion Government shall assume and defray 
 all the charges for the following services, viz.: 
 
 The salary of the Lieutenant Governor ; 
 
 The salaries of the Judges of the Superior Court and 
 of the District or County Courts when established; 
 
 The charges in respect of the Department of Customs ; 
 
 The Postal Department ; 
 
 The protection of Fisheries ;
 
 22 THE CANADIAN CONSTITUTION. 
 
 The provision for the Militia ; 
 
 The Lighthouses, Shipwrecked Crews, Quarantine, and 
 Marine Hospitals ; 
 
 The Geological Survey ; 
 
 The Penitentiary ; 
 
 Efficient Steam Service for the conveyance of mails and 
 passengers, to be established and maintained between the 
 Island and the mainland of the Dominion, Winter and 
 Summer, thus placing the Island in continuous communi- 
 cation with the Intercolonial Railway and the railway 
 system of the Dominion ; 
 
 The maintenance of telegraphic communication between 
 the Island and the mainland of the Dominion ; 
 
 And such other charges as may be incident to, and 
 connected with, the services which by the " British North 
 America Act, 1867," appertain to the General Government, 
 and as are or may be allowed to the other Provinces ; 
 
 That the railways under contract and in course of con- 
 struction for the Governmant of the Island, shall be the 
 property of Canada ; 
 
 That the new building in which are held the Law 
 Courts, Registry Office, etc., shall be transferred to Canada, 
 on the payment of sixty-nine thousand dollars. The pur- 
 chase to include the land on which the building stands, and 
 a suitable space of ground in addition, for yard room, &c. ; 
 
 That the Steam Dredge Boat in course of construction, 
 shall be taken by the Dominion, at a cost not exceeding 
 twenty-two thousand dollars ; 
 
 That the Steam Ferry Boat owned by the Goverment 
 of the Island, and used as such, shall remain the property 
 of the Island ; 
 
 That the population of Prince Edward Island having 
 been increased by fifteen thousand or upwards since the 
 year 1861, the Island shall be represented in the House of 
 Commons of Canada by six Members ; the representation
 
 PRINCE EDWARD ISLAXD. 623 
 
 to be re-adjusted, from time to time, under the provisions 
 of the " British North America Act, 1867 "; 
 
 That the constitution of the Executive Authority o'n<l 
 of the Legislature of Prince Edward Island, shall, subject 
 to the provisions of the " British North America Act, 1867" 
 continue, as at the time of the Union, until altered under 
 the authority of the said Act, and the House of Assembly 
 of Prince Edward Island existing at the date of the Union 
 shall, unless sooner dissolved, continue for the period for 
 which it was elected ; 
 
 That the Provisions in the " British North America 
 Act, 1867" shall, except those parts thereof ^vhich are /'// 
 thrills made, or by reasonable intendment, may be held to 
 be especially applicable to, and only to affect one and not 
 the whole of the Provinces now composing the Dominion, 
 and except so far as the same may be varied by these reso- 
 1 at ions, be applicable to Prince Edward Island, in the 
 same way and to the same extent as they apply to the other 
 Provinces of the Dominion,and as if the Colony of Prim-'' 
 Edward Island had been one of the Provinces originally 
 united by the said Act. 
 
 That the Union shall take place on such day as Her 
 Majesty may direct by Order in Council, on Addresses to 
 that effect from the Houses of Parliament of Canada and 
 of the Legislature of the Colony of Prince Edward Island, 
 under the one hundred and forty-sixth section of the 
 " British North America Act, 1867," and that the Electoral 
 Districts for which, the time within which, and the laws 
 and provisions under which, the first Election of Members 
 to serve in the House of Commons of Canada for such 
 Electoral Districts shall be held, shall be such as the said 
 Houses of the Legislature of the said Colony of Prince 
 Edward Island may specify in their said Addresses. 
 
 "We, therefore, humbly pray that Your Majesty will be 
 graciously pleased, by and with the advice of Your Majesty's 
 Most Honourable Privy Council, under the provisions of the
 
 624 THE CANADIAN CONSTITUTION. 
 
 one hundred and forty-sixth section of the " British North 
 America Act, 1867," to admit Prince Edward Island into 
 the Union or Dominion of Canada, on the terms and condi- 
 tions hereinbefore set forth. 
 
 (Signed) JAMES COCKBURN, 
 
 Speaker. 
 
 House of Commons, 
 
 20th May, 1873. 
 
 A similar address was voted by the Senate of the 
 Dominion, and by the two Houses of the Prince Edward 
 Island Legislatures the latter specifying the electoral dis- 
 tricts as set out in the Order in Council.
 
 APPENDICES. 
 
 1. COLONIAL LAWS VALIDITY ACT, 1865. 
 
 2. LETTEES PATENT CONSTITUTING THE OFFICE OF 
 
 GOVERNOR GENERAL OF CANADA. 
 
 3 INSTRUCTIONS TO ACCOMPANY SAME 
 4. QUEBEC RESOLUTIONS. 
 
 CAN. Cos. 40
 
 APPENDIX I. 
 
 COLONIAL LAWS VALIDITY ACT, 1865. 
 28-29 Vic., CAP. 63, (!MP.) 
 
 An Act to remove Doubts as to the Validity of Colonial Laws. 
 
 [29TH JUNE, 1865. 
 
 WHEREAS doubts have been entertained respecting the 
 -validity of divers laws enacted, or purporting to be enacted 
 by the Legislatures of certain of Her Majesty's Colonies, 
 and respecting the powers of such Legislatures ; and it is 
 expedient that such doubts should be removed : 
 
 Be it hereby enacted by the Queen's Most Excellent 
 Majesty, by and with the advice and consent of the Lords 
 Spiritual and Temporal, and Commons, in this present 
 Parliament assembled, and by the authority of the same, as 
 follows : 
 
 1. The term "colony" shall in this Act include all of Definitions 
 Her Majesty's Possessions abroad, in which there shall ( 
 exist a legislature as hereinafter defined, except the Channel 
 Islands, the Isle of Man, and such territories as may for the 
 time being be vested in Her Majesty, under or by virtue of 
 any Act of Parliament for the government of India ; 
 
 The terms "Legislature" and "Colonial Legislature" "Legislat- 
 shall severally signify the authority (other than the Imperial ^^1 Legisla- 
 Parliament or Her Majesty in Council), competent to make ture " > 
 laws for any colony ; 
 
 The term "Representative Legislature" shall signify " Kepresenta- 
 any Colonial Legislature which shall comprise a, legislativ 6 tm-e"; 
 body of which one-half are elected by inhabitants of the 
 colony ; 
 
 The term " Colonial Law" shall include laws made for "Colonial 
 any colony, either by such Legislature as aforesaid or by aw ' 
 Her Majesty in Council ;
 
 Governor 
 
 628 APPENDIX. 
 
 Act of Parlia-ij An Act of Parliament, or any provision thereof, shall, in-. 
 when' to ex- 'Construing this Act, be said to extend to any colony when it 
 tend to j j s ma de applicable to such colony by the express words or 
 
 necessary intendment of any Act of Parliament ; 
 
 The term "Governor" shall mean the officer lawfully 
 administering the Government of any colony ; 
 
 "Letters Pa- The term "Letters Patent" shall mean letters patent 
 under the Great Seal of the United Kingdom of Great Britain 
 and Ireland. 
 
 Colonial Law 2. Any colonial law, which is or shall be repugnant to 
 repugnancy * the P rovisions of an y Act of Parliament extending to the 
 colony to which such law may relate, or repugnant to any 
 order or regulation made under authority of such Act of 
 Parliament, or having in the colony the force or effect of 
 such Act, shall be read subject to such Act, order, or_ 
 regulation, and shall, to the extent of such repugnancy, 
 but not otherwise, be and remain absolutely void and in- 
 operative. 
 
 Colonial Law 3. No colonial law shall be, or be deemed to have been, 
 
 for^pug- V id vo ^ or i n P era ti ve on t ne ground of repugnancy to the law 
 
 nancy. of England, unless the same shall be repugnant to the pro- 
 
 visions of some such Act of Parliament, order, or regula- 
 
 tion, as aforesaid. 
 
 Colonial Law 4. No colonial law, passed with the concurrence of or 
 inconsisterfcy assented to by the Governor of any colony, or to be here- 
 
 with iustruc- after so passed or assented to, shall be, or be deemed to 
 tions. 
 
 have been, void or inoperative by reason only of any in- 
 
 structions with reference to such law, or the subject thereof, 
 which may have been given to such Governor, by or on 
 behalf of Her Majesty, by any instrument other than the 
 letters patent or instrument authorizing such Governor to 
 concur in passing or to assent to laws for the peace, order, 
 and good government of such colony, even though such in- 
 structions may be referred to in such letters patent, or last- 
 mentioned instrument. 
 
 Colonial Leg- 5. Every colonial Legislature shall have, and be deemed 
 establish, 1 *;** at a11 times to have had, full power within its jurisdiction 
 Courts of law. to establish courts of judicature, and to abolish and re- 
 
 constitute the same, and to alter the constitution thereof. 
 
 and to make provision for the administration of justice 
 
 Representa- therein ; and every representative Legislature shall, in re- 
 
 tive Legisla- 
 
 ture may al- spect to the colony under its jurisdiction, have, and be 
 
 deemed at a11 times to have had, full power to make laws 
 respecting the constitution, powers, and procedure of such 
 Legislature; provided that such laws shall have been
 
 APPENDIX. 629 
 
 passed in such manner and form as may from time to time 
 be required, by any Act of Parliament, letters patent, Order 
 in Council, or colonial law for the time being in force in 
 the colony. 
 
 6. The certificate of the clerk or other proper officer of a Certified co- 
 legislative body in any colony to the effect that the docu- Ecfevidemse 
 
 ment to which it is attached is a true copy of any colonial that they are 
 
 properly pas- 
 law assented to by the Governor of such colony, or of any sed. 
 
 bill reserved for the signification of Her Majesty's pleasure 
 by the said Governor, shall be prima facie evidence that the 
 document so certified is a true copy of such law or bill, and, 
 *s the case may be, that such law has been duly and 
 properly passed and assented to, or that such bill has been 
 duly and properly passed and presented to the Governor ; 
 and any proclamation, purporting to be published by ^ O r ?, cl tf tion 
 authority of the Governor, in any newspaper in the colony dence of as- 
 to which such law or bill shall relate, and signifying Her allowance. 
 Majesty's disallowance of any such colonial law, or Her 
 Majesty's assent to any such reserved bill as aforesaid, 
 shall be prima facie evidence of such disallowance or assent. 
 And whereas doubts are entertained respecting the vali- 
 dity of certain Acts enacted, or reputed to be enacted, by 
 the Legislature of South Australia : Be it further enacted 
 as follows : 
 
 7. All laws or reputed laws enacted or purporting to Certain Acts 
 have been enacted by the said Legislature, or by persons or f sout 
 
 bodies of persons for the time being acting as such Legis- tralia to be 
 lature, which have received the assent of Her Majesty in 
 Council, or which have received the assent of the Governor 
 of the said Colony in the name and on behalf of Her 
 Majesty, shall be and be deemed to have been valid and 
 effectual from the date of such assent for all purposes what- 
 ever ; provided that nothing herein contained shall be 
 deemed to give effect to any law or reputed law which has 
 been disallowed by Her Majesty, or has expired, or has been 
 lawfully repealed, or to prevent the lawful disallowance or 
 repeal of any law.
 
 APPENDIX II. 
 
 DRAFT OF LETTERS-PATENT | PASSED UNDER 
 THE GREAT SEAL OF THE UNITED KINGDOM. 
 
 * 
 
 Constituting the Office of Governor-General of the Dominion of 
 
 Canada. 
 
 Letters-Patent, } 
 
 Dated 5th October, 1878. j 
 
 VICTORIA, by the Grace of God, of the United Kingdom of Great Britain 
 and Ireland, Queen, Defender of the Faith, Empress of India ; 
 To all to whom these Presents shall come, Greeting : 
 
 WHEREAS We did, by certain Letters-Patent under the Great Seal of 
 Our United Kingdom of Great Britain and Ireland, bearing date at 
 Westminster the Twenty-second day of May, 1872, in the Thirty-fifth 
 Year of Our Reign, constitute and appoint Our Right Trusty and Right 
 Well-beloved Cousin and Councillor, Frederick Temple, Earl of Dufferin, 
 Knight of Our Most Illustrious Order of Saint Patrick, Knight Com- 
 mander of Our Most Honorable Order of the Bath (now Knight Grand 
 Cross of Our Most Distinguished Order of Saint Michael and Saint 
 George), to be Our Governor-General in and over Our Dominion of 
 Canada for and during Our will and pleasure : 
 
 And whereas by the 12th section of " The British North America Act,. 
 1867," certain powers, authorities, and functions were declared to be 
 vested in the Governor-General : 
 
 And whereas .We are desirous of making effectual and permanent 
 provision for the office of Governor-General in and over Our said 
 Dominion of Canada, without making new Letters-Patent on each demise 
 of the said Office : 
 
 Now know ye that We have revoked and determined, and by these 
 presents do revoke and determine, the said recited Letters-Patent of 
 the Twenty-second day of May, 1872, and every clause, article and thing 
 therein contained : 
 
 And further know ye that We, of our special grace, certain know- 
 ledge, and mere motion, have thought fit to constitute, order, and
 
 APPENDIX. 631 
 
 declare, and do by these presents constitute, order, and declare that 
 there shall be a Governor- General (hereinafter called Our said Gover- 
 nor-General) in and over Our Dominion of Canada (hereinafter called 
 Our said Dominion), and that the person who shall fill the said 
 Office of the Governor-General shall be from time to time appointed 
 by Commission under our Sign-Manual and Signet. And we do hereby 
 authorize and command Our said Governor-General to do and execute, 
 in due manner, all things that shall belong to his said command, and to 
 the trust We have reposed in him, according to the several powers and 
 authorities granted or appointed him by virtue of " The British North 
 America Act, 1867," and of these present Letters-Patent, and of such Com- 
 mission as may be issued to him under Our Sign-Manual and Signet, 
 and according to such Instructions as may from time to time be given to 
 him, under Our Sign-Manual and Signet, or by Our Order in Our Privy 
 Council, or by us through one of Our Principal Secretaries of State, and 
 to such Laws as are or shall hereafter be in force in Our said Dominion. 
 
 II. And We do hereby authorize and empower Our said Governor- 
 General to keep and use the Great Seal of Our said Dominion for sealing 
 all things whatsoever that shall pass the said Great Seal. 
 
 III. And We do further authorize and empower Our said Governor- 
 General to constitute and appoint, in Our name and on Our behalf, all 
 such Judges, Commissioners, Justices of the Peace, and other necessary 
 Officers and Ministers of Our said Dominion, as may be lawfully con- 
 stituted or appointed by Us. 
 
 IV. And We do further authorize and empower Our said Governor- 
 General, so far as we lawfully may, upon sufficient cause to him appear- 
 ing, to remove from his office, or to suspend from the exercise of the 
 same, any person exercising any office within Our said Dominion, under 
 or by virtue of any Commission or Warrant granted, or which may be 
 granted, by Us in Our name or under Our authority. 
 
 V. And We do further authorize and empower Our said Governor- 
 General to exercise all powers lawfully belonging to Us in respect of the 
 summoning, proroguing, or dissolving the Parliament of Our said Do- 
 minion. 
 
 VI. And whereas by " The British North America Act, 1867," it is 
 amongst other things enacted, that it shall be lawful for Us, if We think 
 fit, to authorize the Governor-General of Our Dominion of Canada to- 
 appoint any person or persons, jointly cr severally, to be his Deputy or 
 Deputies within any part or parts of Our said Dominion, and in that 
 capacity to exercise, during the pleasure of Our said Governor-General, 
 such of the powers, authorities, and functions of Our said Governor- 
 General as he may deem it necessary or expedient to assign to such 
 Deputy or Deputies, subject to any limitations or directions from time to 
 time expressed or given by Us : Now We do hereby authorize and em-
 
 632 APPENDIX. 
 
 power Our said Governor-General, subject to such limitations and direc- 
 tions as aforesaid, to appoint any person or persons, jointly or severally, 
 to be his Deputy or Deputies within any part or parts of Our said 
 Dominion of Canada, and in that capacity to exercise, during his pleasure, 
 such of his powers, functions, and authorities as he may deem it neces- 
 sary or expedient to assign to him or them : Provided always, that the 
 appointment of such a Deputy or Deputies shall not affect the exercise 
 of any such power, authority or function by Our said Governor-General 
 in person. 
 
 VII. And We do hereby declare Our pleasure to be that, in the event 
 of the death, incapacity, removal, or absence of Our said Governor- 
 General out of Our said Dominion, all and every the powers and 
 authorities herein granted to him shall, until our further pleasure is 
 signified therein, be vested in such person as may be appointed by Us 
 under our Sign-Manual and Signet to be Our Lieutenant-Governor of 
 Our said Dominion ; or if there shall be no such Lieutenant-Governor in 
 Our said Dominion, then in such person or persons as may be appointed 
 by Us under our Sign-Manual and Signet to administer the Government 
 of the same ; and in case there shall be no person or persons within Our 
 said Dominion so appointed by Us, then in the Senior Officer for the time 
 being in command of our regular troops in our said Dominion : Pro- 
 vided that no such powers or authorities shall vest in such Lieutenant- 
 Governor, or such other person or persons, until he or they shall have 
 taken the oaths appointed to be taken by the Governor-General of Our 
 said Dominion, and in the manner provided by the Instructions accom- 
 panying these Our Letters-Patent. 
 
 VIII. And We do hereby require and command all Our Officers and 
 Ministers, Civil and Military, and all other the inhabitants of Our said 
 Dominion, to be obedient, aiding and assisting unto our said Governor- 
 General, or, in the event of his death, incapacity, or absence, to such 
 person or persons as may, from time to time, under the provisions of 
 these, Our Letters-Patent, administer the Government of Our said 
 Dominion. 
 
 IX. And We do hereby reserve to Ourselves, Our heirs and successors, 
 full power and authority from time to time to revoke, alter or amend 
 these Our Letters- Patent as to Us or them shall seem meet. 
 
 X. And We do further direct and enjoin that these Our Letters-Patent 
 shall be read and proclaimed at such place or places as Our said Gov- 
 ernor-General shall think fit within Our said Dominion of Canada. 
 
 In Witness whereof We have caused these our Letters to be made 
 Patent. Witness Ourself at Westminster, the Fifth day of October, in 
 the Forty-second Year of Our Keign. 
 
 By Warrant under the Queen's Sign-Manual. 
 
 C. ROMILLY.
 
 APPENDIX III. 
 
 DRAFT OF INSTRUCTIONS 
 
 under the Royal Sign-Manual and Signet to the Governor- 
 General of the Dominion of Canada. 
 
 Dated 5th October, 187S. 
 VICTORIA E. 
 
 Instructions to Our Governor-General in and over Our Dominion of 
 Canada, or, in his absence, to Our Lieutenant-Governor or the Officer 
 for the time being administering the Government of Our said 
 Dominion. 
 
 Given at our Court at Balmoral, this Fifth day of October, 1878, in 
 the Forty-second year of Our Reign. 
 
 WHEREAS by certain Letters-Patent bearing even date herewith, We 
 have constituted, ordered, and declared that there shall be a Governor- 
 General (hereinafter called Our said Governor-General) in and over Our 
 Dominion of Canada (hereinafter called Our said Dominion), and W 7 e 
 have thereby authorized and commanded Our said Governor-General to 
 do and execute in due manner all things that shall belong to his said 
 command, and to the trust W T e have reposed in him, according to the 
 several powers and authorities granted or appointed him by virtue of the 
 said Letters-Patent, and of such Commission as may be issued to him 
 under Our Sign-Manual and Signet, and according to such Instructions 
 as may from time to time be given to him, under Our Sign-Manual and 
 Signet, or by Our Order in Our Privy Council, or by Us through One of 
 Our Principal Secretaries of State, and to such Laws as are or shall 
 hereafter be in force in Our said Dominion : 
 
 Now, therefore, We do, by these, Our Instructions, under Our Sign- 
 Manual and Signet, declare Our pleasure to be that Our said Governor- 
 General for the time being shall, with all due solemnity, cause Our 
 Commission, under Our Sign-Manual and Signet, appointing Our said 
 Governor-General for the time being, to be read and published in the 
 presence of the Chief Justice for the time being, or other Judge of the 
 Supreme Court of Our said Dominion, and of the members of the Privy 
 Council in Our said Dominion:
 
 034 APPENDIX. 
 
 And We do further declare Our pleasure to be that Our said Governor- 
 General, and every other Officer appointed to administer the Government 
 of Our said Dominion, shall take the Oath of Allegiance in the form 
 provided by an Act passed in the Session holden in the thirty-first and 
 thirty-second years of Our Reign, intituled : " An Act to Amend the Law 
 relating to Promissory Oaths ;" and likewise that he or they shall take the 
 usual Oath for the due execution of the Office of Our Governor-General in 
 and over Our said Dominion, and for the due and impartial administration 
 of justice ; which Oaths the said Chief Justice for the time being, of Our 
 said Dominion, or, in his absence, or in the event of his being otherwise 
 incapacitated, any Judge of the Supreme Court of Our said Dominion 
 shall, and he is hereby required to tender and administer unto him or 
 them. 
 
 II. And We do authorize and require Our said Governor-General 
 from time to time, by himself or by any other person to be authorized by 
 him in that behalf, to administer to all and to every persons or person 
 as he shall think fit, who shall hold any office or place of trust or profit 
 in Our said Dominion, the said Oath of Allegiance, together with such 
 other Oath or Oaths as may from time to time, be prescribed by any 
 Laws or Statutes in that behalf made and provided. 
 
 III. And We do require Our said Governor-General to communicate 
 forthwith to the Privy Council for Our said Dominion these Our Instruc- 
 tions, and likewise all such others from time to time as he shall find con- 
 venient for Our service to be imparted to them. 
 
 IV. Our said Governor-General is to take care that all laws assented 
 to by him in Our name, or reserved for the signification of Our pleasure 
 thereon, shall, when transmitted by him, be fairly abstracted in the 
 margins, and be accompanied, in such cases as may seem to him neces- 
 sary, with such explanatory observations as may be required to exhibit 
 the reasons and occasions for proposing such Laws ; and he shall also 
 transmit fair copies of the Journals and Minutes of the proceedings of 
 the Parliament of Our said Dominion, which he is to require from the 
 clerks, or other proper officers in that behalf, of the said Parliament. 
 
 V. And We do further authorize and empower Our said Governor- 
 General, as he shall see occasion, in Our name and on Our behalf, when 
 any crime has been committed for which the offender may be tried 
 within Our said Dominion, to grant a pardon to any accomplice not being 
 the actual perpetrator of such crime, who shall give such information as 
 shall lead to the conviction of the principal offender ; and further, to grant 
 to any offender convicted of any crime in any Court, or before any Judge, 
 Justice, or Magistrate, within Our said Dominion, a pardon, either free 
 or subject to lawful conditions, or any respite of the execution of the 
 sentence of any such offender, for such period as to Our said Governor- 
 General may seem fit, and to remit any fines, penalties, or forfeitures.
 
 APPENDIX. 635 
 
 which may become due aud payable to Us. Provided always, that Our 
 said Governor-General shall not in any case, except where the offence has 
 been of a political nature, make it a condition of any pardon or re- 
 mission of sentence that the offender shall be banished from or shall 
 absent himself from Our said Dominion. And We do hereby direct and 
 enjoin that Our said Governor-General shall not pardon or reprieve any 
 such offender without first receiving in capital cases the advice of the 
 Privy Council for Our said Dominion, and in other cases the advice of 
 one, at least, of his Ministers ; and in any case in which such pardon or 
 reprieve might directly affect the interests of Our Empire, or of any 
 country or place beyond the jurisdiction of the Government of Our said 
 Dominion, Our said Governor-General shall, before deciding as to either 
 pardon or reprieve, take those interests specially into his own personal 
 consideration in conjunction with such advice as aforesaid. 
 
 VI. And whereas great prejudice may happen to Our service and to 
 the security of Our said Dominion by the absence of Our said Governor- 
 General, he shall not, upon any pretence whatever, quit Our said 
 Dominion without having first obtained leave from Us for so doing under 
 Our Sign-Manual and Signet, or through one of Our Principal Secretaries, 
 of State. 
 
 V.R.
 
 APPENDIX IV. 
 QUEBEC CONFERENCE RESOLUTIONS, 1864. 
 
 1. The best interests and present and future prosperity of British 
 North America will be promoted by a federal union, under the Crown of 
 Great Britain, provided such union can be effected on principles just to 
 the several Provinces. 
 
 2. In the federation of the British North American Provinces, the 
 system of Government best adapted under existing circumstances to pro- 
 tect the diversified interests in the several Provinces, and secure efficiency, 
 harmony and permanency in the working of the union, would be a general 
 Government, charged with matters of common interest to the whole 
 country ; and Local Governments for each of the Canadas, and for the 
 Provinces of Nova Scotia, New Brunswick, and Prince Edward Island, 
 changed with the control of local matters in their respective sections ; 
 provision being made for the admission into the union, on equitable 
 terms, of Newfoundland, the North -West Territory, British Columbia, 
 and Vancouver. 
 
 3. In framing a constitution for the general Government, the Confer- 
 ence, with a view to the perpetuation of our connection with the mother 
 country, and to the promotion of the best interests of the people of these 
 Provinces, desire to follow the model of the British constitution so far 
 as our circumstances will permit. 
 
 4. The Executive authority or government shall be vested in the 
 Sovereign of the United Kingdom of Great Britain and Ireland, and be 
 administered according to the well-understood principles of the British 
 constitution, by the Sovereign personally, or by the representative of the 
 Sovereign duly authorized. 
 
 5. The Sovereign or Representative of the Sovereign shall be Com- 
 mander in Chief -of the land and naval militia forces. 
 
 6. There shall be a General Legislature or Parliament for the 
 federated Provinces, composed of a Legislative Council and a House of 
 
 ' Commons. 
 
 7. For the purpose of forming the Legislative Council, the federated 
 Provinces shall be considered as consisting of three divisions: 1st, Upper
 
 APPENDIX. 63T 
 
 Canada, 2nd, Lower Canada, 3rd, Nova Scotia, New Brunswick, and 
 Prince Edward Island ; each division with an equal representation in 
 the Legislative Council. 
 
 8. Upper Canada shall be represented in the Legislative Council by 
 24 members, Lower Canada by 24 members, and the three maritime- 
 Provinces by 24 members, of which Nova Scotia shall have 10, New 
 Brunswick 10, and Prince Edward Island 4 members. 
 
 9. The Colony of Newfoundland shall be entitled to enter the pro- 
 posed union, with a representation in the Legislative Council of 4 
 members. 
 
 10. The North-West Territory, British Columbia and Vancouver 
 shall be admitted into the union on such terms and conditions as the 
 Parliament of the federated Provinces shall deem equitable, and as shall 
 receive the assent of Her Majesty ; and, in the case of the Province of 
 British Columbia or Vancouver, as shall be agreed to by the Legislature 
 of such Province. 
 
 11. The members of the Legislative Council shall be appointed by the 
 Crown under the great seal of the general government, and shall hold 
 office during life ; if any Legislative Councillor shall, for two consecutive 
 sessions of Parliament, fail to give his attendance in the said Council, 
 his seat shall thereby become vacant. 
 
 12. The members of the Legislative Council shall be British subjects 
 by birth or naturalization, of the full age of thirty years, shall possess a 
 continuous real property qualification of four thousand dollars over and 
 above all incumbrances, and shall be and continue worth that sum over 
 and above their debts and liabilities, but in the case of Newfoundland 
 and Prince Edward Island the property may be either real or personal. 
 
 13. If any question shall arise as to the qualification of a Legislative 
 Councillor, the same shall be determined by the Council. 
 
 14. The first selection of the members of the Legislative Council shall 
 be made, except as regards Prince Edward Island, from the Legislative 
 Councils of the various Provinces, so far as a sufficient number be 
 found qualified and willing to serve ; such members shall be appointed 
 by the Crown at the recommendation of the general executive Govern- 
 ment, upon the nomination of the respective local Governments, and in 
 such nomination due regard shall be had to the claims of the members of 
 the Legislative Council of the opposition in each Province, so that all 
 political parties maj as nearly as possible be fairly represented. 
 
 15. The Speaker of the Legislative Council (unless otherwise provided 
 by Parliament) shall be appointed by the Crown from among the menf- "* 
 bers of the Legislative Council, and shall hold office during pleasure, and 
 shall only be entitled to a casting vote on an equality of votes.
 
 638 APPENDIX. 
 
 16. Each of the twenty-four Legislative Councillors representing 
 Lower Canada in the Legislative Council of the general Legislature, 
 shall be appointed to represent one of the twenty-four electoral divisions 
 mentioned in Schedule A of chapter first of the Consolidated Statutes of 
 Canada, and such Councillor shall reside or possess his qualification in 
 the division he is appointed to represent. 
 
 17. The basis of representation in the House of Commons shall be 
 population, as determined by the official census every ten years ; and the 
 number of members at first shall be 194, distributed as follows : 
 
 Upper Canada 82 
 
 Lower Canada 65 
 
 Nova Scotia 19 
 
 New Brunswick 15 
 
 Newfoundland 8 
 
 Prince Edward Island 5 
 
 18. Until the official census of 1871 has been made up, there shall be 
 no change in the number of representatives from the several sections. 
 
 19. Immediately after the completion of the census of 1871, and im- 
 mediately after every decennial census thereafter, the representation 
 from each section in the House of Commons shall be readjusted on the 
 basis of population. 
 
 20. For the purpose of such re-adjustments, Lower Canada shall 
 always be assigned sixty-five members, and each of the other sections 
 shall at each re-adjustment receive, for the ten years then next succeed- 
 ing, the number of members to which it will be entitled on the same 
 ratio of representation to population as Lower Canada will enjoy accord- 
 ing to the census last taken by having sixty-five members. 
 
 21. No reduction shall be made in the number of members returned 
 "by any section, unless its population shall have decreased, relatively to 
 the population of the whole Union, to the extent of five per centum. 
 
 22. In computing at each decennial period the number of members 
 to which each section is entitled, no fractional parts shall be considered, 
 unless when exceeding one-half the number entitling to a member, in 
 which case a member shall be given for each such fractional part. 
 
 23. The Legislature of each Province shall divide such Province into 
 the proper number of constituencies, and define the boundaries of each 
 of them. 
 
 24. The local Legislature of each Province may, from time to time, 
 alter the electoral districts for the purposes of representation in such 
 local Legislature, and distribute' the representatives to which the Prov- 
 ince is entitled in such local Legislature, in any manner such Legislature 
 may see fit.
 
 APPENDIX. 639 
 
 25. The number of members may at any time be increased by the 
 general Parliament, regard being had to the proportionate rights then 
 existing. 
 
 26. Until provisions are made by the General Parliament, all the laws 
 which, at the date of the proclamation constituting the Union, are in 
 force in the Provinces respectively, relating to the qualification and dis- 
 qualification of any person to be elected, or to sit or vote as a member 
 of the Assembly in the said Provinces respectively ; and relating to the 
 qualification or disqualification of voters and to the oaths to be taken 
 by voters, and to returning officers and their powers and duties, and 
 relating to the proceedings at elections, and to the period during which 
 such elections may be continued, and relating to the trial of controverted 
 elections, and the proceedings incident thereto, and relating to the 
 vacating of seats of members, and to the issuing and execution of new 
 writs, in case of any seat being vacated otherwise than by a dissolution, 
 shall respectively apply to elections of members to serve in the House 
 of Commons, for places situate in those Provinces respectively. 
 
 27. Every House of Commons shall continue for five years from the 
 day of the return of the writs choosing the same, and no longer ; subject, 
 nevertheless, to be sooner prorogued or dissolved by the Governor. 
 
 28. There shall be a session of the general Parliament once, at least, 
 in every year, so that a period of twelve calendar months shall not inter- 
 vene between the last sitting of the general Parliament in one session, 
 and the first sitting thereof in the next session. 
 
 29. The general Parliament shall have power to make laws for the 
 peace, welfare, and good government of the federated provinces (saving 
 the sovereignty of England), and especially laws respecting the following 
 subjects : 
 
 (1) The public debt and property. 
 
 (2) The regulation of trade and commerce. 
 
 (3) The imposition or regulation of duties of customs on imports and 
 
 exports, except on exports of timber, logs, masts, spars, deals 
 and sawn lumber from New Brunswick, and of coal and other 
 minerals from Nova Scotia. 
 
 (4) The imposition or regulation of excise duties. 
 
 (5) The raising of money by all or any other modes or systems of 
 
 taxation. 
 
 (6) The borrowing of money on the public credit. 
 {7) Postal service. 
 
 (8) Lines of steam or other ships, railways, canals and other works, 
 connecting any two or more of the Provinces together or ex- 
 tending beyond the limits of any Province.
 
 640 APPENDIX. 
 
 (9) Lines of steamships between the federated provinces and other 
 countries. 
 
 (10) Telegraphic communication and the incorporation of telegraphic 
 
 companies. 
 
 (11) All such works as shall, although lying wholly within any Pro- 
 
 vince be specially declared by the Acts authorizing them to be 
 for the general advantage. 
 
 (12) The census. 
 
 (13) Militia military and naval service and defence. 
 
 (14) Beacons, buoys and light houses. 
 
 (15) Navigation and shipping. 
 
 (16) Quarantine. 
 
 (17) Sea-coast and island fisheries. 
 
 (18) Ferries between any province and a foreign country, or between 
 
 any two provinces. 
 
 (19) Currency and coinage. 
 
 (20) Banking incorporation of banks, and the issue of paper money. 
 
 (21) Savings banks. 
 
 (22) Weights and measures. 
 
 (23) Bills of exchange and promissory notes. 
 
 (24) Interest. 
 
 (25) Legal tender. 
 
 (26) Bankruptcy and insolvency. 
 
 (27) Patents of invention and discovery. 
 
 (28) Copyrights. 
 
 (29) Indians and lands reserved for the Indians. 
 
 (30) Naturalization and aliens. 
 
 (31) Marriage and divorce. 
 
 (32) The criminal law, excepting the constitution of courts of criminal 
 
 jurisdiction, but including the procedure in criminal matters. 
 
 (33) Rendering uniform all or any of the laws relative to property and 
 
 civil rights in Upper Canada, Nova Scotia, New Brunswick, 
 Newfoundland, and Prince Edward Island, and rendering 
 uniform the procedure of all or any of the courts in these Pro- 
 vinces ; but any statute for this purpose shall have no force or 
 authority in any Province until sanctioned by the Legislature 
 thereof. 
 
 (34) The establishment of a general Court of Appeal for the federated 
 
 Provinces. 
 
 (35) Immigration. 
 
 (36) Agriculture.
 
 APPENDIX. 641 
 
 (37) And generally respecting all matters of a general character, not 
 specially and exclusively reserved for the local Governments 
 
 and Legislatures. 
 
 
 
 30. The general Government and Parliament shall have all powers 
 necessary or proper for performing the obligations of the federated Pro- 
 vinces, as part of the British Empire, to foreign countries arising under 
 treaties between Great Britain and such countries. 
 
 31. The general Parliament may also, from time to time, establish 
 additional courts, and the general Government may appoint judges and 
 officers thereof, when the same shall appear necessary or for the public 
 advantage, in order to the due execution of the laws of Parliament. 
 
 32. All courts, judges and officers of the several Provinces shall aid, 
 assist and obey the general Government in the exercise of its rights and 
 powers, and for such purposes shall be held to be courts, judges and 
 officers of the general Government. 
 
 33. The general Government shall appoint and pay the judges of the 
 Superior Courts in each Province, and of the County Courts in Upper 
 Canada, and Parliament shall fix their salaries. 
 
 34. Until the consolidation of the laws of Upper Canada, New Bruns- 
 wick, Nova Scotia, Newfoundland and Prince Edward Island, the 
 judges of these Provinces appointed by the general Government shall be 
 selected from their respective bars. 
 
 35. The judges of the courts of Lower Canada shall be selected from 
 the bar of Lower Canada. 
 
 36. The judges of the Court of Admiralty now receiving salaries 
 shall be paid by the general Government. 
 
 37. The judges of the Superior Courts shall hold their offices during 
 .good behaviour, and shall be removable only on the address of both 
 
 Houses of Parliament. 
 
 LOCAL GOVERNMENT. 
 
 38. For each of the Provinces there shall be an executive officer, 
 styled the Lieutenant-Governor, who shall be appointed by the Governor- 
 General in Council, under the Great Seal of the federated Provinces, 
 during pleasure ; such pleasure not to be exercised before the expiration 
 of the first five years, except for cause ; such cause to be communicated 
 in writing to the Lieutenant-Governor immediately after the exercise of 
 the pleasure as aforesaid, and also by message to both Houses of Parlia- 
 ment, within the first week of the first session afterwards. 
 
 39. The Lieutenant-Governor of each Province shall be paid by the 
 general Government. 
 
 CAN. Cox. 41
 
 (i42 APPENDIX. 
 
 40. In undertaking to pay the salaries of the Lieutenant-Governors^ 
 the Conference does not desire to prejudice the claim of Prince Edward" 
 Island upon the Imperial Government for the amount now paid for the 
 salary of the Lieutenant-Governor thereof. 
 
 41. The local Government and Legislature of each Province shall be 
 constructed in such manner as the existing Legislature of such Province 
 shall provide. 
 
 42. The local Legislatures shall have power to alter or amend their 
 constitution from time to time. 
 
 43. The local Legislatures shall have power to make laws respecting 
 the following subjects : 
 
 (1) Direct taxation, and in New Brunswick the imposition of duties 
 
 on the export of timber, logs, masts, spars, deals and sawn 
 lumber ; and in Nova Scotia, on coals and other minerals. 
 
 (2) Borrowing money on the credit of the Province. 
 
 (3) The establishment and tenure of local offices, and the appoint- 
 
 ment and payment of local officers. 
 
 (4) Agriculture. 
 
 (5) Immigration. 
 
 (6) Education ; saving the rights and privileges which the Protestant 
 
 or Catholic minority in both Canadas may possess as to their 
 denominational schools, at the time when the union goes into 
 operation. 
 
 (7) The sale and management of public lands excepting lands belong- 
 
 ing to the general Government. 
 
 (8) Sea-coast and inland fisheries. 
 
 (9) The establishment, maintenance and management of peniten- 
 
 tiaries, and of public and reformatory prisons. 
 
 (10) The establishment, maintenance and management of hospitals, 
 
 asylums, charities and eleemosynary institutions. 
 
 (11) Municipal institutions. 
 
 (12) Shop, saloon, tavern, auctioneer and other licenses. 
 
 (13) Local works. 
 
 (14) The incorporation of private or local companies, except such as 
 
 relate to matters assigned to the general Parliament. 
 
 (15) Property and civil rights, excepting those portions thereof 
 
 assigned to the general Parliament. 
 
 (16) Inflicting punishment by fine, penalties, imprisonment or other- 
 
 wise, for the breach of laws passed in relation to any subject 
 within their jurisdiction.
 
 APPENDIX. 643 
 
 (17) The administration of justice, includingjthe constitution, main- 
 
 tenance [and organization of the courts, both of civil and 
 criminal jurisdiction, and including also the procedure in civil 
 matters. 
 
 (18) And generally all matters "of a private or local nature, not 
 
 assigned to the general Parliament. 
 
 44. The power of respiting, reprieving, and pardoning prisoners con- 
 victed of crimes, and of commuting and remitting of sentences in whole or 
 in part which belongs of right to the Crown, shall be administered by 
 the Lieutenant-Governor of each Province in Council, subject to any in- 
 structions he may, from time to time, receive from the general Govern- 
 ment, and subject to any provisions that may be made in this behalf by 
 the general Parliament. 
 
 MISCELLANEOUS. 
 
 45. In regard to all subjects over which jurisdiction belongs to both 
 the general and local Legislatures, the laws of the general Parliament 
 shall control and supersede those made by the local Legislature, and the 
 latter shall be void so far as they are repugnant to or inconsistent with, 
 the former. 
 
 46. Both the English and French languages may ba employed in the 
 general Parliament and in its proceedings, and in the local Legislature of 
 Lower Canada, and also in the Federal courts, and in the courts of 
 Lower Canada. 
 
 47. No lands or property belonging to the general or local Govern- 
 ments shall be liable to taxation. 
 
 48. All bills for appropriating any part of the public revenue, or for 
 imposing any new tax or impost, shall originate in the House of Com- 
 mons or House of Assembly, as the case may be. 
 
 49. The House of Commons or House of Assembly shall not originate 
 or pass any vote, resolution, address or bill for the appropriation of any 
 part of the public revenue, or of any tax or impost to any purpose, not 
 first recommended by message of the Governor-General or the Lieuten- 
 ant-Governor, as the case may be, during the session in which such vote, 
 resolution, address or bill is passed. 
 
 50. Any bill of the general Parliament may be reserved in the usual 
 manner for Her Majesty's assent, and any bill of the local Legislatures 
 may, in like manner, be reserved for the consideration of the Governor- 
 General. 
 
 51. Any bill passed by the general Parliament shall be subject to dis- 
 allowance by Her Majesty within two years, as in the case of bills passed 
 by the Legislatures of the said Provinces hitherto ; and, in like manner,
 
 644 APPENDIX. 
 
 any bill passed by a local Legislature shall be subject to disallowance by 
 the Governor-General within one year after the passing thereof. 
 
 52. The seat of Government of the federated Provinces shall be 
 Ottawa, subject to the Royal prerogative. 
 
 53. Subject to any future action of the respective local Governments, 
 the seat of the local Government in Upper Canada shall be Toronto ; of 
 Lower Canada, Quebec ; and the seats of the local Governments in the 
 other Provinces shall be as at present. 
 
 PROPEBTY AND LIABILITIES. 
 
 54. All stocks, cash, bankers' balances and securities for money be- 
 longing to each Province at the time of the Union, except as hereinafter 
 mentioned, shall belong to the general Government. 
 
 55. The following public works and property of each Province shall 
 belong to the general Government, to wit : 
 
 (1) Canals. 
 
 (2) Public harbours. 
 
 (3) Light houses and piers. 
 
 (4) Steamboats, dredges and public vessels. 
 {5) River and lake improvements. 
 
 (6) Railway and railway stocks, mortgages and other debts due by 
 
 railway companies. 
 
 (7) Military roads. 
 
 (8) Custom houses, post offices and other public buildings, except 
 
 such as may be set aside by the general Government for the use 
 of the local Legislatures and Governments. 
 
 (9) Property transferred by the Imperial Government and known as 
 
 ordnance property. 
 (10) Armories, drill sheds, military clothing and munitions of war ; 
 
 and 
 ((11) Lands set apart for public purposes. 
 
 56. All lands, mines, minerals and royalties vested in Her Majesty in 
 'the Provinces of Upper Canada, Lower Canada, Nova Scotia, New 
 Brunswick and Prince Edward Island, for the use of such Provinces, 
 :shall belong to the local Government of the territory in which the same 
 are so situate ; subject to any trusts that may exist in respect to any 
 of such lands or to any interest of other persons in respect of the same. 
 
 57. All sums due from purchasers or lessees of such lands, mines or 
 minerals at the time of the Union, shall also belong to the local Govern- 
 ments. 

 
 APPENDIX. 645 
 
 58. All assets connected with such portions of the public debt of any 
 Province as are assumed by the local Governments shall also belong 
 to those Governments respectively. 
 
 59. The several Provinces shall retain all other public property 
 therein, subject to the right of the general Government to assume any 
 lands or public property required for fortifications or the defence of the 
 country. 
 
 60. The general Government shall assume all the debts and liabilities 
 of each Province. 
 
 61. The debt of Canada, not specially assumed by Upper and Lower 
 Canada respectively, shall not exceed, at the time of the Union, $62,500,- 
 000 ; Nova Scotia shall enter the Union with a debt not exceeding 
 8,000,000 ; and New Brunswick with a debt not exceeding $7,000,000. 
 
 62. In case Nova Scotia or New Brunswick do not incur liabilities 
 beyond those for which their Governments are now bound, and which 
 shall make their debts at the date of union less than $8,000,000 and 
 ?7,000,000 respectively, they shall be entitled to interest at five per cent, 
 on the amount not so incurred, in like manner as is hereinafter pro- 
 vided for Newfoundland and Prince Edward Island ; the foregoing 
 resolution being in no respect intended to limit the powers given to the 
 respective Governments of those Provinces, by Legislative authority, 
 but only to limit the maximum amount of charge to be assumed br the 
 general Government ; provided always, that the powers so conferred by the 
 respective Legislatures shall be exercised within five years from this 
 date, or the same shall then lapse. 
 
 63. Newfoundland and Prince Edward Island, not having incurred 
 debts equal to those of the other Provinces, shall be entitled to receive, 
 by half-yearly payments, in advance, from the general Government, the 
 interest at five per cent, on the difference between the actual amount of 
 their respective debts at the time of the Union, and the average amount 
 of indebtedness per head^of the population of Canada, Nova Scotia and 
 New Brunswick. 
 
 64. In consideration of the trasfer to the general Parliament of the 
 powers of taxation, an annual grant in aid of each Province shall be, 
 made, equal to eighty cents per head of the population, as established by: 
 the census of 1861 ; the population of Newfoundland being estimated at. 
 130,000. Such aid shall be in full settlement of all future demands upon, 
 the general Government for local purposes, and shall be paid half-yearly 
 in advance to each Province. 
 
 65. The position of New Brunswick being such as to entail large im- 
 mediate charges upon her local revenues, it is agreed that for the period 
 of ten years, from the time when the Union takes effect, an additional;
 
 646 APPENDIX. 
 
 allowance of $63,000 per annum shall be made to that Province. But 
 that so long as the liability of that Province remains under 17,000,000, a 
 deduction equal to the interest of such deficiency shall be made from the 
 $63,000. 
 
 66. In consideration of the surrender to the general Government, by 
 Newfoundland, of all its rights in mines and minerals, and of all the un- 
 granted and unoccupied lands of the Crown, it is agreed that the sum of 
 $150,000 shall each year be paid to that Province, by semi-annual pay- 
 ments ; provided that that Colony shall retain the right of opening, con- 
 structing and controlling roads and bridges through any of the said 
 lands, subject to any laws which the general Parliament may pass i 
 respect of the same. 
 
 67. All engagements that may, before the Union, be entered into with 
 the Imperial Government for the defence of the country, shall be assumed 
 by the general Government. 
 
 68. The general Government shall secure, without delay, the com- 
 pletion of the Intercolonial Railway from Riviere du Loup, through New 
 Brunswick, to Truro in Nova Scotia. 
 
 69. The communications with the North-Western Territory, and the 
 improvements required for the development of the trade of the great west 
 with the seaboard, are regarded by this conference as subjects of the 
 highest importance to the federated Provinces, and shall be prosecuted 
 at the earliest possible period that the state of the finances will permit. 
 
 70. The sanction of the Imperial and local Parliaments shall be 
 sought for the union of the Provinces, on the principles adopted by the 
 Conference. 
 
 71. That Her Majesty the Queen be solicited to determine the rank 
 and name of the federated Provinces. 
 
 72. The proceedings of the Conference shall be authenticated by the 
 signatures of the delegates, and submitted by each delegation to its own 
 Government ; and the Chairman is authorized to submit a copy to the 
 Governor-General for transmission to the Secretary of State for the 
 Colonies. 

 
 INDEX.
 
 GENERAL INDEX. 
 
 (NOTE. On pp. 204 and 205, we have placed side by side, for con- 
 venience of reference and comparison, sections 91 and 92 of 
 the B. N. A. Act, containing an enumeration of the various 
 subjects committed to the parliament of Canada and the 
 provincial legislatures, respectively. By reference to the 
 head lines adopted throughout chapter XII. any given sub- 
 section of section 91 or 92 can be quickly found.) 
 
 A. 
 
 ADMINISTRATION OF JUSTICE See JUDICIAL SYSTEM 
 
 ADMINISTRATOR 
 
 of Dominion government, in absence, etc., of Governor-General, 258 
 
 (see Letters Patent in Appendix) 
 
 of Provincial government in absence, etc., of Lieut. -Governor, 321 
 (See DEPUTY.) 
 
 ADMISSION OF OTHER COLONIES OF B. N. A., 545-6 
 (See Part IV.) 
 
 AGRICULTURE. 512 
 
 ALIENS See NATURALIZATION AND ALIENS 
 
 APPOINTMENT TO OFFICE 
 
 powers of Governor- General in relation to, 165, 166-8 
 federal officers See OFFICES AND OFFICERS 
 provincial " " " 
 
 (See also the various offices.) 
 
 APPROPRIATION AND TAX BILLS 
 
 must originate in Commons, 298 
 " on recommendation of Crown, 298 
 provincial legislatures, 341
 
 650 INDEX. 
 
 APPROPRIATION, POWER OF 
 
 importance of, in securing responsible government, 35, 37 
 
 results of colonial system, 37 
 
 concession of, to pre-Confederation provinces, 39, 40, 356, 525 
 
 " tenure-of -office " question thereby solved, 38, 40, 435 
 
 of parliament of Canada over Cons. Rev. Fund, 517 
 
 of provincial legislatures over provincial, 524 
 
 ASSEMBLYS, EARLY See FEE-CONFEDERATION PROVINCES 
 
 ASSENT TO BILLS 
 
 of Parliament of Canada, 147, 299 
 of provincial legislatures, 341 
 contrary to instructions, 148 
 
 (See COLONIAL LAWS VALIDITY ACT) 
 
 ATTORNEY-GENERAL 
 
 position of provincial, 311, 402 
 
 B. 
 
 15. X. A. ACT, 1867 See pp. 241-546 
 
 limitation of preamble to " general '' government only, 3, 242 
 
 Dicey's criticism of, 3, 172 
 
 constructive clauses compared with " Constitutional Acts " for other 
 
 colonies same type, 52, 54 
 
 scheme of, could not have been effected, except by Act of Parlia- 
 ment, 242 
 
 truly federal, 43, 47, 245, 423 
 Division of the Field See chapter X. 
 
 for legislative purposes, fixes division for executive, 199 
 
 body of pre-existing laws divided, 200, 410, 535 
 
 exhaustive, 201, 345 
 
 line of division enforced by courts, 11, 193, 202 
 
 principles enunciated in earlier decisions of Supreme Court, 206 
 
 rejected by Privy Council, 207 
 certain general rules discussed, 210, 219 
 
 sections 91 and 92 to be read together, 210 
 
 other Imperial Acts in pari materia, 212, 357, 461 
 
 true nature of enactment to be considered, 212 
 
 possibility of power being abused, no reason for denying its 
 
 existence, 213, 386, 434 
 subjects in one aspect may fall within section 91, in another 
 
 within section 92 ; 213, 467, 484-5 
 concurrent po%vers, 214 See CONCURRENT POWERS. 
 presumption for validity, 21
 
 INDEX. 651 
 
 B. N. A. ACT, 1867 Contin u-.-d. 
 
 Quebec Resolutions how far to be utilized, 219 
 United States decisions how far useful, 220 
 
 (See PRE-CONFEDERATION PROVINCES, PROVINCIAL CONSTITUTIONS, 
 
 PARLIAMENT OF CANADA, etc., etc.) 
 
 BAGEHOT 
 
 on the fusion of legislative and executive departments in England, 15 
 on the House of Lords, 268 
 
 BICAMERAL FORM OF LEGISLATURE, 326 
 
 (See SENATE) 
 
 BILLS See ASSENT TO BILLS, RESERVED BILLS 
 BREWERS See LIQUOR TRAFFIC 
 
 BRITISH CONSTITUTION 
 
 compared with that of United States, 5, et seq. 
 federal idea, in Imperial aspect of, 5, 8, 250 
 upheld by " Conventions," 7 
 common to both United States and, 12 
 supremacy of late " " " 12, 14 
 
 " literary theory " of division of power in, 14, 29 
 Bagehot combats, 15 
 embodied in United States system, 17 
 executive responsibility to parliament the essential feature of, 16 
 
 in Canada, 22 
 difference, in this respect in United States system, 12, 20 
 
 (See CABINET, DIVISION OF POWEK, CONVENTIONS OF THE CONSTITU- 
 TION, FEDERALISM, RULE OF LAW, etc.) 
 
 BRITISH COLONY See COLONY 
 
 BRITISH COLUMBIA 
 
 order in Council admitting to Union, 604 
 provincial constitution, 612, 614, 
 English law in See ENGLAND. LAW OF 
 
 BRITISH GOVERNMENT See IMPERIAL EXECUTIVE AUTHORITY 
 
 BRITISH LAW See ENGLAND 
 
 BRITISH PARLIAMENT See IMPERIAL PARLIAMENT 
 
 c. 
 
 CABINET 
 
 in England, 15 
 
 connects legislative and executive departments, 15, 334 
 
 United States system, 12, 20
 
 652 INDEX. 
 
 CABINET Continued. 
 
 British system in Canada, 23, 334 
 
 in the provinces, 50, 51, 334 
 in the pre-Confederation provinces, 41 
 
 (See PRIVY COUNCIL FOR CANADA, EXECUTIVE COUNCIL) 
 
 CANADA 
 
 constitution of, compared with British and United States, 2, 20 
 general view, 1 
 truly federal, 43, 47, 245, 423 
 
 similar in principle to that of.United Kingdom, 2, 21 
 (See B. N. A. ACT) 
 
 CANADA (Old) 
 
 severed by B. N. A. Act, 247 
 argument founded on clauses relating to, 46 
 legislative power of parliament of, 60, et seq, 
 
 statutory powers of governors, etc., vested in both Governor- 
 General and Lieut. -Governors of Ontario and Quebec, 256, 315 
 (See PRE-CONFEDERATION PROVINCES) 
 
 CAPE BRETON, 27 
 
 CAPITALS See SEATS OF GOVERNMENT 
 
 CENSUS, 248 
 
 CHINESE See NATURALIZATION AND ALIENS 
 
 COLONY 
 
 federalism in colonial system. 5, 8, 250 
 
 primrf facie British statutes not operative in, 7, 57, 185 
 
 (See COLONIAL LAWS VALIDITY ACT) 
 
 comparison of Constitutional Acts for the colonies, 52, 54 
 results of our status as a, Part II., 54, et seq. 
 legislative power in a See COLONIAL LEGISLATIVE POWER 
 
 COLONIAL LAWS VALIDITY ACT, 1865 (28 & 29 Vic. c. 63 See- 
 Act in Appendix) 
 canon as to extension of Acts of British Parliament to colonies, 7,. 
 
 57, 186 
 
 "repugnancy" clauses, 59, 379 
 assent to Bills contrary to "instructions," 148 
 power of colonial legislatures to alter constitution of legislature* 
 
 280, 327, 422, 614 
 legislate as to procedure, etc., ib. 
 proof of colonial laws, 195 
 earlier Acts along same line, 63, 64, 421 

 
 INDEX. 653 
 
 COLONIAL LEGISLATIVE POWER 
 
 supreme within limits of subjects and area, 177, et seq., 194 
 * principle applicable to both Dominion and Provincial legisla- 
 
 tures, 181-3, 194, 201-2, 324 
 
 of parliament of Canada over N. W. Territories, 183, 347, 554-5 
 subject to sovereignty of England, 183-5, 192, 245 
 limitations in respect of subject-matter, 7, 74 
 military matters, 378-9 
 navigation, 381 
 copyright, 403 
 aliens, 406 
 
 territorial limits, 185, et seq. 
 Canadian authorities, 188 
 a question of jurisdiction, 193 
 
 for the determination of courts of law, 11, 193, 202 
 division of the field in Canada See B. N. A. ACT 
 in reference to " prerogatives " See PREROGATIVES 
 
 (See PARLIAMENT OF CANADA, PROVINCIAL LEGISLATURES) 
 
 COLONIAL SYSTEM See PRE-CONFEDEBATION PROVINCES, TAXATION 
 COMMONS See HOCSE OF COMMONS 
 
 COMPANY 
 
 power of parliament of Canada in reference to incorporation of, 
 353, 449 
 
 (See NOTES TO B. N. A. ACT, s. 92, ss. 10 AND 11) 
 Dominion, how far subject to provincial law, 353, 453, et eq., 464 
 
 CONCURRENT POWERS 
 
 question discussed, 214-7, 467, 480, 484 
 
 in relation to insolvency legislation, 216, 392 
 liquor traffic, 216 
 banks, etc., 215 
 bills of lading, 375 
 agriculture and immigration, 512 
 
 CONTINUATION OF LAWS, ETC., EXISTING AT UNION, 200, 
 534, 553 See B. N. A. ACT 
 
 CONVENTIONS OF THE CONSTITUTION 
 federalism in colonial system, upheld by, 7 
 in relation to legislation by Imperial parliament for Canada, 66 
 
 executive responsibility to parliament of United King- 
 dom, 16 
 same principle in pre-Coufederated provinces, 41 
 
 applies to Dominion executive, 42, 320 
 and to provincial executive, 51, 320 
 how far based on legal sanction, 16 (?i)
 
 654 INDEX. 
 
 COURTS OF LAW 
 
 enforcement by, of legal limitations upon both legislative and 
 
 executive action, 11, 223 
 legal limitations upon Imperial executive 
 
 authority, 11 
 legal limitations upon colonial legislative 
 
 authority, 11, 193, 202 
 
 international comity as recognized by, 224-5 
 jurisdiction of, territorially and otherwise, 225 
 (See JUDICIAL SYSTEM OF CANADA) 
 
 CRIMINAL LAW, 407, 418 
 
 meaning of term in Canadian jurisprudence limited, 403, 478, i't *< [ 
 common law crimes assigned to Dominion parliament, 410 
 pre-Confederation laws, how divided. 410 
 procedure," 235, 415 
 
 difficult to distinguish from "organization," 41(5-8, 468 
 constitution of courts, 468 
 
 \See PENAL LAWS OF PROVINCES, JUDICIAL SYSTEM) 
 
 CROWN 
 
 of England, succession to, 244 
 
 power of Imperial parliament over, 134, 214 
 colonial legislature no power over, 184, 245 
 (See PREROGATIVES OF THE CROWN) 
 
 D. 
 
 DENOMINATIONAL SCHOOLS See SEPARATE SCHOOLS 
 
 DEPUTY GOVERNOR-GENERAL, 258 
 Lieut. -Governor, power to appoint, 321 
 DICEY (Prof. A. V.) 
 
 his criticism of B. N. A. Act, 3 
 on the supremacy of parliament, 16 
 power of disallowance, 172 
 position of Colonial legislatures, 174 (n) 
 on federalism, 175 
 
 DIRECT TAXATION See B. N. A. Act, sec. 92, s-s. 2 
 What is? 425, et seq. 
 
 provincial powers of taxation limited to, 431 
 (See LICENSES.) 
 
 DISALLOWANCE 
 
 of Acts of parliament of Canada, 146, et seq. 
 " conventional " limits, 146, 174 
 provisions of B. N. A. Act, 147-9, 299 
 

 
 INDEX. ().").") 
 
 DISALLOWANCE CoRtifnftfd. 
 
 of Acts of provincial legislatures, 171, 342 
 
 after lapse of year, nothing but Imp. Act can affect, 343 
 
 responsibility for, to Parliament 23 
 
 power of, not intended to obviate necessity for resort to 
 
 courts, 172, 342. 397 
 no bearing on question of validity, il>. 
 
 DIVISION OF POWER 
 
 between legislative and executive departments, 14, et seq. 
 " literary theory " as to, in England, 14, 29 
 Bagehot on, 15 
 
 embodied in United States system, 17 
 carried out in early government of colonies, 31 
 (See BRITISH CONSTITUTION, UNITED STATES CONSTITUTION) 
 under a federal system 
 
 expression criticized, 21, 45, 51, 257 
 
 DIVISION OF THE FIELD (chapter IX.) 
 in Canada 
 
 (See B. N. A. ACT, PARLIAMENT OF CANADA, PROVINCIAL LEGISLA- 
 TURES. 
 
 DEOIT ADMINISTRATE- - 
 in France and Switzerland, 14 
 
 DOMINION EXECUTIVE 248, et teq. 
 
 responsibility to parliament for disallowance of provincial Acts, 23 
 appointment and removal of Lieut. -Governors See LIEUT. -GOVERNOR 
 relations to Lieut. -Governors, 307-8, 309, 320 ' " 
 
 (See CABINET, GOVERNOR-GENERAL. PRIVY COUNCIL FOR CANADA) 
 
 E. 
 
 EDUCATION 489, et seq. 
 
 ELECTIONS 
 
 pre-Confederation laws as to, continued, 284, 335, 619 
 to House of Commons, 283, 291 
 
 power of Dominion parliament to legislate respecting, 289 
 Dominion and provincial systems dissevered, 286 
 voters at, 286 
 
 Revising officers, 286 
 
 not subject to supervision of provincial courts, 240, 286 
 
 (See JUDICIAL SYSTEM.) 
 
 right to vote, not a civil right within B. N. A. Act, s. 92 (s-s. 
 13), 286-7
 
 '656 INDEX. 
 
 ELECTIONS Continued. 
 
 controverted elections, trial of, 288 
 not part of "the administration of justice," 287 
 transferred to courts, 288-290 
 not subject to review in P. C., 289 
 to provincial assemblies, 385 
 voters, 286 
 
 controverted elections, 288 
 to municipal councils, 445 
 
 controverted elections, provincial legislature may legislate as to, 
 445 
 
 EMPLOYEES' LIABILITY ACTS 
 
 power of provincial legislature to pass, 375 
 
 ENGLAND, LAW OF 
 
 how far introduced into provinces, 75-128 
 
 N. W. Territories, 580-2 
 Manitoba, 597-601 
 British Columbia, 615-6 
 
 operative only in absence of Canadian legislation, 77 
 Nova Scotia decisions, 77-92 
 
 statutes creating charge in favor of Crown, 78 
 
 in curtailment of prerogative, 87 
 how colonial legislation affects the question, 88 
 certain statutes recognized without question, 90 
 Statute of Uses, but not of Enrolment, 90 
 Magna Charta, 90 
 Statute of Staples, 90 
 Partition Acts of Henry VIII., 90 
 Fraudulent Conveyances, 90 
 review of, 91 
 New Brunswick decisions, 92-94 
 
 Statute of Uses and Enrolment, 92 
 
 Mortmain, 93 
 other statutes, 93 
 review, 94 
 Ontario, 94-128 
 
 English law introduced by Canadian Enactment, 95, 96, 127, 128 
 difference between " civil " and " criminal " law, 96-7, 122 
 certain Acts recognized without question, 97 
 statutes as to apprentices, 98 
 
 review, 100 
 certiorari, 100 
 
 Mortmain Acts, 101, et seq. 
 Marriage Acts, ] 16 
 review, 119
 
 INDEX. 657 
 
 ENGLAND, LAW OF Continued. 
 
 Acts of local application in Eng. not introduced, 120 
 criminal laws, 122, et seq. 
 
 general review of Ontario cases, 126 
 as to prerogatives, 139 
 
 (See TABLE OF IMPERIAL STATUTES) 
 
 ESCHEATS, 528 
 
 EVIDENCE 
 
 taking of, for use before foreign courts, 346 
 
 powers of Dominion and provincial legislatures, 474-5 
 
 " EXCLUSIVE " 
 
 term in section 91 B. N. A. Act, not intended as a renunciation by 
 
 Imperial parliament of its legislative supremacy, 67, 379 
 refers to relations between Dominion and provinces, 67, 350, 379 
 (See IMPERIAL PARLIAMENT) 
 
 EXECUTIVE AUTHORITY 
 
 subordinate to legislature, 12, 46, 137, 144 
 and legislative, co-extensive, ib., 199, 302, 437 
 
 contention to the contrary noticed, 45, 301 
 limitations upon, enforced by courts, 11, 202 
 in provinces, 45, 49-51, 301 
 
 (See LIEUT. -GOVERNOR) 
 unity of, throughout the Empire, 249, 303 
 in Canada vested in the Queen, 248 
 in reference to our judicial system, anomalous position of, 470 
 
 (See IMPERIAL EXECUTIVE AUTHORITY, DOMINION EXECUTIVE) 
 
 EXECUTIVE COUNCIL 
 Ontario and Quebec, 310 
 Xova Scotia and New Brunswick, 313 
 North-West Territories, 568 
 Manitoba, 591 
 British Columbia, 612, 614 
 Prince Edward Island, 623 
 liability of members of, 312 
 
 EXECUTIVE RESPONSIBILITY 
 
 to electorate through parliament, the British principle, 16 
 " " Canadian " 22 
 
 directly, the United States principle, 17 
 lack of, to congress, of United States executive, 18 
 growth of principles, of in pre-confederated provinces, 29-40 
 CAN. Cox. 42
 
 658 INDEX. 
 
 EXECUTIVE RESPONSIBILITY Continued. 
 
 secured by concession of control of revenue, 35, 40, 356, 525 
 statutes relating to, 40 
 " tenure-of -office," despatches, etc., 40, 41 
 
 (See APPROPRIATION, BRITISH CONSTITUTION, CABINET, CONVENTIONS) 
 
 F. 
 
 FACTOKY ACTS 
 
 power of provincial legislature to pass, 375 
 
 FEDERALISM 
 
 common to both British and United States systems, 12 
 in British Imperial system, 5, et seq. 
 
 rests on " conventions," 7, 10, 250 
 
 growth of, 8 
 in United States syste.ni. the basis, 8, 43. 
 
 upheld by law, 7 
 in Canadian system, the basis, 43, 47, 245, 281, 423 
 
 involves continuation of parties tofadits, 47, '241, 123 
 
 v. legislative union, 44 (.-<>' UXITAUIAN) 
 opinion may vary as to position of dividing line, 44 
 full governmental power necessary for each division, 45-6 
 
 (See B. N. A. ACT) 
 
 FEDERAL OFFICERS .See OFFICES AND OFFICERS 
 
 FEDERAL COURTS See JUDICIAL SYSTEM 
 
 FINANCIAL ARRANGEMENTS, 519, et seq., 530, 594, 607, 6:0 
 
 FRANCE - 
 
 droit administratif in, 14 
 
 FRANCHISE See BISECTIONS 
 
 FREE TRADE 
 
 interprovincia), 523, 530 
 
 FRENCH LANGUAGE 
 
 in debates, etc., of parliament of Canada, 539 
 
 Quebec legislature, 539 
 in courts, 539 
 in Manitoba, 593 
 in N.-W. Territories, 579
 
 INDEX. 659 
 
 G. 
 
 GAME LAWS 
 
 power of a provincial legislature to pass, 414, 480, 488 
 
 GOVERNOR-GEN ERAL chapter VIII. 
 
 powers of, defined and limited by commission, 150 
 no immunity from being impleaded, 152, 162 
 in English courts, 152-5, 160 
 in courts of his colony, 155, 162 
 civilly, 155-9 
 criminally, 160-2 
 
 letters patent constituting office, 162, et seq. (see Appendix) 
 powers in relation to appointments to office, 165-6 
 parliament, 165-168 
 pardon, 166 
 disallowance of provincial Acts, 342 
 
 (See DisfGT** WINCE) 
 dual position of, 250 
 Acts under advice of Dominion cabinet in matters committed to 
 
 parliament of Canada, 250 
 
 powers in relation to Lieutenant-Governors, 251, 308, 320 
 not sole representative of the Queen in Canada, 254-5 (see LIKUTE- 
 
 NANT-GOVEKNOR) 
 
 invested with all statutory powers of governors, etc., in pre-con- 
 federated provinces, so far as exerciseable in federal govern- 
 ment, 48, 256, 315 
 
 power of Dominion parliament to alter, etc., 257 
 salary of, 517 
 
 (See ADMINISTRATOR, DEPUTY, PREROGATIVES) 
 
 GREAT BRITAIN See BRITISH CONSTITUTION, ENGLAND, IMPERIAL 
 PARLIAMENT 
 
 H. 
 
 HARBOURS, 530 
 
 HOUSE OF COMMONS OF CANADA 
 constitution of, 282-300 
 membership, 282 
 
 representation of provinces in, 28'2, 294 
 redistribution, 294 
 electoral districts in each urovince, 297
 
 660 INDEX. 
 
 HOUSE OF COMMONS OF CANADA Continued. 
 
 elections See ELECTIONS 
 
 speaker, 291 SPEAKER 
 
 quorum, 293 QUORUM 
 
 voting, 293 VOTING 
 
 duration of, 293 
 
 cannot be altered by Dominion parliament, 293 
 money votes must originate in, 298 See APPROPRIATION AND TAX 
 
 BILLS 
 (See PARLIAMENT OF CANADA) 
 
 HOUSE OF LORDS 
 functions of, 258 
 
 compared with United States senate, 258 
 senate of Canada, 268-271 
 (See SENATE) 
 
 I. 
 
 IMMIGRATION, 512 
 
 IMPERIAL EXECUTIVE AUTHORITY 
 in relation to Canada, limited, 11, 141-3, 253 
 
 disallowance of Dominion legislation, 145-9, 174 
 (See PREROGATIVES) 
 
 IMPERIAL PARLIAMENT 
 
 its dual nature, 7, 55 
 
 legislates, primd facie, for United Kingdom only, 7, 185 
 Acts of, do not primd facie extend to colonies, 7, 185 
 no legal limits to legislative power of, 11, 55, 186 See EXCLUSIVE 
 "conventional " limits as to colonies, 7-9, 66, 74 
 
 (See COLONIAL LEGISLATIVE POWER) 
 colonial legislature cannot affect Acts of, of express application to 
 
 colony, 60, et seq. 
 
 repeal of Act by, repeals in colony, 69, et seq. 
 
 general legislation by, how far introduced into Canada See E.NO- 
 LAND, LAW OF 
 
 distinction between, and Acts of express application, 58, 75 
 time limit, 58 
 when do Acts of, extend to a colony See COLONIAL LAWS VALIDITY 
 
 ACT 
 (See PREROGATIVES, PRIVILEGES) 
 
 IMPERIAL STATUTES See ENGLAND (LAW OF), IMPERIAL PARLIAMENT 

 
 INDEX. 661 
 
 IMPLIED POWEKS, 9, 221, 348 
 
 doctrine of, how far applicable in Canada, 348-9 
 
 IMPRISONMENT FOR DEBT, 394, 476 
 
 INDIGENT DEBTORS, 396, 476 See BANKRUPTCY AND INSOLVENCY, 
 B. N. A. Act, s. 91, s-s. 21 
 
 J. 
 
 JUDGES 
 
 appointment of, etc., 512, et seq. See JUDICIAL SYSTEM 
 
 JUDICIAL SYSTEM OF CANADA See also COURTS 
 
 Canadian Courts, at times, practically administer foreign law, 224-5 
 courts enforce observance of dividing line between Dominion Par- 
 liament and provincial legislatures, 172, 223, 342 
 federal courts administer provincial law, and rice versd, 227, 230 
 
 power of Dominion parliament to establish, 229, 230, 
 
 384, 514 
 
 jurisdiction determined by line of division between 
 Dominion parliament and provincial legislatures, 
 229, 515 
 
 provincial courts no power to supervise, 240 
 provincial courts, pre-Confederatiou, continued, 227-9 
 
 jurisdiction of, does not depend on line of division 
 between Dominion parliament and provincial 
 legislatures, 230, 238, 470 
 power of provincial legislature to establish new, 
 
 238, 470 
 power of provincial legislature to appoint judicial 
 
 officers, 238-9, 470-1 
 
 territorial jurisdiction of courts, 225, et seq. 
 vice admiralty courts, 227 
 duties may be imposed on courts, etc., in Canada by authority other 
 
 than that which created the court, 230 
 by Dominion parliament on vice-admiralty courts, 231, 384 
 
 on provincial courts, 232 
 
 by provincial legislature on federal judges, 232-4 
 scheme of B. N. A. Act illogical, 234, 468, 515 
 procedure an essential part of certain legislation, 235-7 
 maritime law, 236 
 patent law, 402 
 insolvency law, 237 
 election law, 237-8, 290 
 different meanings of term, '234-7 
 
 (See CRIMINAL LAW, PE.N'AL LAWS OF PROVINCES. EVIDENCE) 
 JUSTICES OF THE PEACK .Sec JUDICIAL SYSTEM
 
 662 IN'DEX. 
 
 LANDS See PUBLIC LANDS 
 LAW See RULE OF LAW 
 
 LEGISLATIVE POWER 
 
 supreme over executive, 12, 137, 144' 
 
 through financial necessities of executive, 29 See APPROPRIATION 
 both in British and United States systems, 14 
 and executive co-extensive, 12, 46, 137, 144, 437. 
 close connection in England, 15 See CABINET. 
 lack of sympathetic connection in United States, 14, 17, 334 
 limitations upon, enforced by courts, 11, 202 See COURTS OF LAW 
 
 in colonies, part of federal idea, 20 
 
 (See B. N. A. ACT, COLONIAL LEGISLATIVE POWER, EXECUTIVK) 
 AUTHORITY, PARLIAMENT OF CANADA, PROVINCIAL LEGISLATURES 
 
 LEGISLATIVE UNION See UNITARIAN, FEDERALISM 
 
 LEX ET CONSUETODO PARLIAMENTI See PRIVILEGES 
 not carried into colonies, 203 
 
 LIEUT.-GOVERNOR 
 
 a link in the chain of federal connection, 48 
 appointment of, 48. 300, 306 
 tenure of office, 251, 308 
 removal of, 251, 308-9 
 
 ' ; conventional " rule in Letellier case, i>>. 
 what constitutes '-cause." 309 
 deputy, power to appoint. 321 See ADMINISTRATOR 
 invested with all statutory powers of governors, etc., prior to Con- 
 federation so far as exerciseable in provincial government, 
 48, 313-9 
 
 invested with all powers necessary to executive government of pro- 
 vince. 49. 303 
 represents the Queen, 303-0, '->'2~> 
 
 for purposes of executive government, 303-4 
 
 legislation, 300. 325 
 how far he may act without ' advice." 319-20 
 
 subject to "instructions " of Goyernor-General, 304- 5. 
 relations of Dominion executive to, 307-8, 309, 320 
 Dominion parliament no power to legislate as to, 309, 419 
 his position compared with that of Governor-General, 303-5 
 
 LICENSES, 44.5 See Liyixm TRAFFIC 
 direct or indirect taxation ? 430, 447
 
 INDEX. 663 
 
 LIQUOR TRAFFIC 
 
 cases reviewed, 359, et seq. 
 
 power of provincial legislature to prohibit, 366-72 
 
 " LITERARY THEORY " See DIVISION OF POWER 
 
 LOWER CANADA See QUEBEC, PRE-CONFEDERATION PROVINCES 
 
 M. 
 
 MANITOBA 
 
 historical sketch as to admission, 549-53 
 
 MARRIAGE, 407, 459 (see ENGLAND, LAW OF) 
 
 MILITARY MATTERS See COLONIAL LEGISLATIVE POWER 
 supreme command of militia in the Queen, 259 
 committed to Dominion parliament, 378-9 
 
 MONEY VOTES See APPROPRIATION- AND TAX BILLS 
 MORTMAIN ACTS See ENGLAND, LAW OF COMPANIES 
 MUNICIPAL INSTITUTIONS, 439-45 
 
 N. 
 
 NATURALIZATION AND ALIENS, 406 
 cases in British Columbia, 616 
 
 NEW BRUNSWICK 
 
 legislative and executive authority in, continued by B. N. A. Act 
 
 50, 52, 313, 388 
 
 early constitution of, 27 See PRE-CONFEDERATION PROVINCES 
 introduction of English law into, 92-4 See ENGLAND, LAW OF 
 
 NORTH-WEST TERRITORIES 
 
 admission of, to Canada, historical sketch, 549, et seq. 
 
 constitutional changes, 555 
 
 present constitution, 562, et seq. 
 
 representation in parliament of Canada, 271, 283 
 
 legislative supremacy of parliament of Canada ov3r, 183, 347, 551-5 
 
 introduction of English law into, 581 See ENGLAND, LAW OF
 
 664 INDEX. 
 
 NOVA SCOTIA 
 
 early constitution of, '26, 40 See PRE-CONFEDEBATION PROVINCES 
 introduction of English law into, 77-92 See ENGLAND, LAW OF 
 legislative and executive authority in, continued by B. N. A. Act, 
 50, 52, 313, 338 
 
 NUISANCES 
 
 power of provincial legislature to prohibit, etc., 361, 373, 487 
 
 o. 
 
 OATHS 
 
 to be taken by senators, etc., 532 
 
 OFFICES AND OFFICERS 
 
 federal, power of Dominion parliament over, 380 
 
 Governor-General in relation to, 165, 166, et seq. 
 provincial legislature to tax, 380, 436 
 provincial, power of provincial legislatures over, 435 
 
 can provincial officers be appointed to execute Dominion 
 legislation ? 436 
 
 ONTARIO 
 
 l3gislature, 324-329 
 
 constitution, 324 
 
 membership, 328 
 executive council, 310 
 introduction of English law into, 94-128 See ENGLAND, LAW OF 
 
 (See PRE-CONFEDERATION PROVINCES) 
 
 P. 
 
 PARLIAMENT 
 
 no special significance attached to term, 261 
 
 PARLIAMENT, SUPREMACY OF 
 Dicey on the, 16 
 
 principle fully operative in Canada, 22, 174 (n) 
 (See LEGISLATIVE POWER) 
 
 PARLIAMENT OF CANADA (See note at beginning of this Index) 
 constitution of, 260, et seq. 
 
 cannot alter its own, 281, 422-3 
 summoning of, etc., 165, 168-70 
 
 (See HOCSE'OF COMMONS, SENATE)
 
 INDEX. 665 
 
 PARLIAMENT OF CANADA Continued. 
 
 legislative power of, 204, 343, 420 (See note at beginning of Index) 
 may legislate as parliamentary procedure, 280 See COLONIAL 
 
 LAWS VALIDITY ACT 
 
 limited power of legislation as to "privileges," 264 See PRIVI- 
 LEGES 
 
 limited to general legislation, 211, 351, 392, 464, 483 
 private bills, 352 See COMPANIES 
 residuum with, 344-5, 462, 485 
 " peace, order and good government," 347, 484 
 over N. W. Territories, 183, 347, 554-5 
 disallowance of Acts of See DISALLOWANCE 
 
 PARLIAMENT OF UNITED KINGDOM See IMPERIAL PARLIAMENT 
 
 PARLIAMENTARY PROCEDURE See COLONIAL LAWS VALIDITY ACT, 
 PRIVILEGES 
 
 PENAL LAWS OF PROVINCES, 478, et seq. 
 diversity of nomenclature, 474 
 
 provincial legislature full power over procedure, 471-4 
 how distinguished from "criminal" law, 479 
 power to pass a general law, 481 
 appropriation of fines, 482 
 remission of penalties, etc., 482 
 
 POLICE MAGISTRATES 
 
 power to appoint, 238 See JUDICIAL SYSTEM 
 
 11 POLICE " POWERS, 487 
 
 POWER OF APPROPRIATION See APPROPMATION 
 
 POWER, DIVISION OF See DIVISION OF POWER 
 
 PRE-CONFEDERATION PROVINCES 
 Maritime provinces, 
 
 Nova Scotia, 26, 40 
 
 Prince Edward Island, 27 
 
 New Brunswick, 27 
 
 Cape Breton, 27 
 
 general treatment, 28, et $?q., 40 
 Quebec, 27 
 (Old) Canada, 28, 34 
 
 general treatment, 34, 41 
 commissions of early governors, 2P-32 
 government by prerogative in, 30 See PREROGATIVES 
 assemblies in, 26, et seq. 
 
 their functions, legislative, 30
 
 ()li() INDEX. 
 
 PRE-CONFEDEEATION PROVINCES Continued. 
 " responsible government " in, growth of, 29-40 
 
 (See APPBOPUIATION, POWER OF EXECUTIVE RESPONSIBILITY) 
 type of organization in, 47 
 what became of their constitutions, 43, et *eq. 
 
 continuation of executive authority, 48-51, 318 
 
 legislative authority, 52, 338 
 division of assets, etc., 52-3, 516, et seq. 
 laws of England in See ENGLAND, LAWS OF 
 
 PREROGATIVES OF THE CROWN See chapter VI. 
 in connection with early government of colonies, 30 
 extent of operation in colonies, 137, et seq. 
 
 same rule applies to lex prerogative as to other branches of 
 
 English law, 139 
 effect of establishment of representative assembly in colonies, 30, 
 
 140, 242 
 power of colonial legislature over, 35, 139, 253 
 
 no power over certain, 253 
 one executive magistrate, the British idea, 130 
 
 invested by the common law with " prerogatives," 131, 134 
 
 limited by the common law, 134 
 
 no power to alter law, 131 
 
 protected in exercise of, by being a branch of parliament, 31, 
 
 132, 145 
 parliament may legislate as to, 132, 134, 135, 137, 253 
 
 secured control of, through power over finances, 31 
 express words or irresistible inference required to take away, 142 
 classification of, 134-6 
 in Canada, under B. N. A. Act, 142, 253 
 disallowance of colonial Acts, 14-5-9 See DISALLOWANCE 
 commissions of Oyer and Terminer, 259 
 Queen's Counsel case, 143 (n), 317 
 escheats, 528 
 royalties, 529-30 
 
 PRESUMPTION 
 
 in favor of validity, 217 
 
 (Sec LEGISLATIVE POWER, EXECUTIVE RESPONSIBILITY) 
 
 PRINCE EDWARD ISLAND 
 
 early constitution, 27 See PRE-CONFEDERATIOX PROVINCES 
 admission of, to Union, 617 
 
 PRIVATE BILLS .See PARLIAMENT OF CANADA 
 PRIVILEGES 
 
 of parliament of Canada, 261, et seq. 
 B. N. A. Act amended, 262
 
 INDEX. 667 
 
 PRIVILEGES Continued. 
 
 legislative power in relation to, limited, 264 
 
 (See PARLIAMENT OF CANADA) 
 of provincial legislatures, 326, et seq. 
 
 legislative power in relation to, plenary, 326-7 
 (See COLONIAL LAWB.VALIDITY ACT) 
 
 PRIVY COUNCIL FOR CANADA 
 
 constitution of, 50-1, 255 
 appointment of members, 167, 255 
 
 PROCEDURE See JUDICIAL SYSTEM, CRIMINAL LAW, PENAL LAW, etc. 
 PROHIBITION See LIQDOR TRAFFIC 
 
 PROVINCIAL CONSTITUTIONS, 300-343 
 
 executive power, 300-324 See EXECUTIVE AUTHORITY 
 
 Lieutenant-Governors See LIEUTENANT-GOVERNOR 
 
 Executive Council -See EXECUTIVE COUNCIL, CABINET 
 
 "executive power case" (Ont.), 305-6 
 legislative power See PROVINCIAL LEGISLATURES 
 
 range of, determines range of executive, 199, 305 See LEGISLA- 
 TIVE POWER 
 provincial autonomy, 301 
 
 (See ONTARIO, QUEBEC, etc.) 
 
 PROVINCIAL LEGISLATURES See note at beginning of this Index 
 disallowance of Acts of See DISALLOWANCE 
 powers of, 205, 420-512 See B. N. A. ACT, COLONIAL LEGISLATIVE 
 
 POWER 
 
 as to prerogatives See PREROGATIVES 
 as to " privileges," etc. See PRIVILEGES, COLONIAL LAWS VALIDITY 
 
 ACT 
 
 to alter constitution, 420, et seq. 
 as to elections See ELECTIONS 
 duration of, 336 
 
 speaker, quorum, voting See these titles 
 (See ONTARIO, QUEBEC, ETC.) 
 
 PROVINCIAL OFFICES See OFFICES AND OFFICERS 
 PUBLIC HARBOURS, 530 
 
 PUBLIC LANDS 
 Indian reserves, 404 
 provincial legislative power, 437 
 assigned to provinces, 518, 528 
 
 Manitoba, 595, 601 
 
 British Columbia, 610 
 
 Prince Edward Island, 621 
 exempt from taxation, 524, 531
 
 668 INDEX. 
 
 PUBLIC WORKS AND PROPERTY 
 certain, assigned to Dominion, 518, 530-1 
 remainder reserved to provinces, 521 
 exempt from taxation, 524, 531 
 
 Q. 
 
 QUALIFICATION See the various offices 
 
 QUEBEC 
 
 legislature, 329, et seq. 
 legislative council 
 constitution of, 329 
 qualification, vacancies, etc., 330-1 
 legislative assembly, 331 
 executive council, 310 
 
 QUEBEC RESOLUTIONS, 1864 See Appendix 
 indicate a federal union. 45 
 how far may they be utilized, 45, 219 
 as to re-distribution, 295 
 
 QUEEN, THE 
 
 executive head throughout the Empire, 130, 252. H04 
 
 in Canada, 248, 252, 304 
 dual position occupied by, 250 
 Commander-in-chief, 289 
 a branch of the parliament of Canada, 261 
 
 provincial legislatures, 306, 325, 341 
 
 QUEEN'S COUNSEL-143 (/), 317 
 
 QUORUM 
 
 Senate of Canada, 279 
 
 House of Commons, 293 
 
 Quebec legislative council, 331 
 
 Ontario and Quebec legislative assemblies, 337 
 
 RAILWAYS See COMPANY 
 
 RE-DISTRIBUTION 
 
 of representation in parliament of Canada, 294 
 Quebec resolutions, 295
 
 INDEX. 669 
 
 RE-DISTRIBUTION Continued. 
 
 different from defining electoral districts, 297 
 parliament of Canada full control of both, 297-8 
 
 RESERVED BILLS, 149, 298, 300 
 
 REPUGNANCY 
 
 of colonial Acts to Imperial, 58, 379 
 
 (See COLONIAL LAWS VALIDITY ACT) 
 of ordinances of North-West assembly to Dominion legislation, 
 
 570, 582 
 
 RESIDUUM OF POWER See also DIVISION OF Po\\j*tC 
 Canadian and United States systems contrasted, 44 
 expression criticized, 45 
 
 (See PARLIAMENT OF CANADA) 
 
 RESPONSIBLE GOVERNMENT See EXECUTIVE RESPONSIBILITY 
 
 REVENUE 
 
 power to appropriate See APPROPRIATION 
 provisions of B. N. A. Act, 516, et seq. 
 
 ROYALTIES, 518, 529-30 
 
 RULE OF LAW 
 
 common to both British and United States systems, 12, 14 
 (See PARLIAMENT, SUPREMACY OF) 
 
 s. 
 
 SEATS OF GOVERNMENT 
 of Dominion, 260 
 of provinces, 323 
 
 SENATE OF CANADA, 268-81 
 
 compared with House of Lords and United States, 268-70 
 no judicial functions, 270 
 
 except as to status of senators, 278 
 no executive functions, 270 
 
 has failed to answer the end of its creation, 270-1 
 principle of equal representation in, abandoned, 271 
 
 Ontario, Quebec and Maritime provinces, 272, 
 
 peculiar provision as to Quebec, 271 
 qualification of senators, 273 
 summons to senators, 274
 
 670 INDEX. 
 
 SENATE OF CANADA-C'oHfinMZ. 
 
 possible addition to, ef six members, 275 
 
 provision practically effete, 276 
 number of senators, 276 
 
 no maximum, 277 
 tenure of office, 239, 277 
 vacating of seat in, 277 
 
 question determined by senate, 278 
 speaker, quorum, voting See these titles 
 senators ineligible for election to Commons, 283 
 
 SEPARATE SCHOOLS, 489, et geq. 
 
 remedial legislation by parliament of Canada, 495, 508 
 
 SOVEREIGN See QUEEN, CROWN, PREROGATIVES 
 
 SPEAKER 
 
 of senate of Canada, 279 
 
 of Quebec executive council, 330 
 
 of House of Commons, 291 
 
 position compared with that of, in England and United States. 
 
 292 
 
 deputy speaker, 293 
 of provincial assemblies, 337 
 
 STATUTES See Index to Statutes, p. xv 
 SUPREMACY OF LAW See RULE OF LAW 
 
 SUPREME COURT OF CANADA, 514, 516 
 
 provincial legislature no power to limit appeals to, 510 
 
 SWITZERLAND 
 
 droit admimstratif in, 14 
 
 T. 
 
 TAXATION - 
 
 colonial system, 35, et seq. 
 result of, 37 
 
 (See APPROPRIATION.) 
 powers of Dominion and provincial legislatures limited to purpo-es 
 
 of those governments respectively, 377 
 parliament of Canada, 376 
 provincial legislatures, 424 
 
 public lands and property exempt from, 524, 531 
 * (See DIRECT TAXATION.)
 
 INDEX. 671 
 
 TENURE OF OFFICE See APPROPRIATION, POWER OF, OFFICES 
 
 TERRITORIAL OPERATION OF STATUTES - 
 
 of Imperial parliament, 7, 185 
 
 of colonial legislatures, 185, et e</. 
 
 TERRITORIAL REVENUES 
 assigned to provinces, 518. 528 
 
 TREATY OBLIGATIONS 
 
 parliament of Canada may legislate for performing, 538 
 power limited by reason of Imperial legislation, 538-9 
 
 IT. 
 
 UNIFORMITY 
 
 provision for future, in laws of Ontario, Nova Scotia and New 
 Brunswick, 511 
 
 UNITED STATES 
 
 constitution of, compared with British and Canadian, 5, 20 
 distribution of legislative power in, as compared with Canada, 44- t ~' 
 
 220-1 
 
 power of congress to determine line of division, 9 
 how far decisions in courts of, may be utilized. 220-2 
 (See BRITISH CONSTITUTION, FEDERALISM) 
 
 UNITARIAN FORM OF GOVERNMENT, 13 
 v. federal, 44, 444 
 
 V. 
 
 VALIDITY 
 
 presumption in favor of, 217 
 
 a principle of interpretation, 217 
 
 VOTERS See ELECTIONS 
 
 VOTING 
 
 in senate of Canada, 281 
 in House of Commons, 293 
 Quebec legislative council, 331 
 provincial assemblies, 337 
 
 VETO Sec DISALLOWANCE 

 
 672 INDEX. 
 
 w. 
 
 WOKKMEN'S COMPENSATION FOR INJURIESJACT- 
 how far federal railway subject to provisions of, 458 
 
 Y. 
 
 YEARLY SESSIONS 
 
 parliament of Canada, 267 
 
 Ontario and Quabec, 337 
 
 New Brunswick and Nova Scotia, 337 

 
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