THE 
 
 EXECUTIVE POWER CASE. 
 
 THE 
 
 Attorney- General of Canack 
 
 I 
 
 vs. 
 
 The Attorney-General of Ontario. 
 
 ^^ 
 
 PRESS OF THE BUDGET, 27 MEMNDA STREET. 
 
 1892. 
 
PREFATORY NOTE. 
 
 ^£f H I S was an action seeking a declaration that the Ontario Act, 51 Vict. Cap. 
 5, respecting the executive administration of the Laws of Ontario, is ultra 
 vires of the Provincial Legislature. 
 
 A copy of the Act is appended. 
 
 The Chancery Division, composed of Boyd, C. and Ferguson and Robertson, 
 J. J., decided in favor of its validity. 
 
 An appeal, argued before Hagarty, C. J. and Burton, Osier and Maclennan, 
 J. J., by C. Robinson, Q.C., and Lefroy for the Appellant, and Edward Blake, 
 Q.C., and Irving, Q.C., for the Respondent was dismissed. 
 
 This print of the argument in Appeal by Counsel fo: Ontario is from Mr. 
 Nelson R. Butcher's excellent report, which the speaker has revised. 
 
 He regrets that time has not served him to condense it, by eliminating the 
 frequent redundancies of phrase and reiterations of argument, which, however 
 allowable and even essential in oral discussion, become alike needless and tedious 
 in a printed dissertation. 
 
 Though sensible of its many imperfections, he has been encouraged by the 
 interest taken in the prints of The Ontario Lands Case and the Provincial 
 Offences and Procedure Case, to submit to the indulgent consideration of Can- 
 adian jurists and public men this attempt to investigate, from the Provincial 
 point of view, the scheme of our Constitutional Act for the distribution of 
 Executive power. 
 
 HuMEWooo, Toronto, 
 
 January, t8q3. 
 
51 VIC, CAP. 5. ONTARIO. 
 
 A/i Act res/>cctini^ the Executive Administration of Laws of this Province. 
 
 Whereas by Section 65 of The British North America Act, 1867, it was provided 
 (among other things) that all powers, authorities and functions under which any Act of 
 the Parliament of the United Kingdom of dreat Britain and Ireland, or of the 
 Legislature of Upper Canada, Lower Canada or Canada, were before or at the union 
 vested in or exercisable by the respective Governors or Lieuteuant-Ciovernors of those 
 Provinces should, as far as the same were capable of being exercised after the union 
 in relation to the government of Ontario and Quebec respectively, be vested in and 
 exercised !)y the Lieutenant-Covernor of Ontario and Quebec respectively, subject, 
 nevertheless, to be abolished or altered by the respective Legislatures of Ontario and 
 Quebec, except with respect to such as existed under Acts of the Parliament of Creat 
 Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland. 
 
 And AVhkkeas by Section 92 of the said Act, it was provided that in each 
 Province of the Dominion of Canada the legislature may exclusively make laws in 
 relation to matters coming within the classes ot subjects thereinafter mentioned. 
 
 Therefore Her Majesty, by and with the advice and consent of the Legislative 
 Assembly of the Province of Ontario, enacts as follows : — 
 
 1. In matters within the jurisdiction of the Legislature of the Province, all 
 powers, authorities and functions which, in respect of like matters, were vested in or 
 exercisable by the Governors or Lieutenant-Governors of the several Provinces, now 
 forming part of the Dominion of Canada or any of the said Provinces, under 
 commissions, instructions or otherwise at or before the passing of the said Act are, 
 and shall be (so far as this Legislature has power thus to enact) vested in and 
 exercisable by the Lieutenant-Governor or Administrator for the time being of this 
 Province, in the name of Her Majesty or otherwise as the case may require; subject 
 always to the Royal Prerogative as heretofore. 
 
 2. The preceding Section shall be deemed to include the power of commuting 
 and remitting sentences for offences against the laws of this Province, or offences over 
 which the legislative authority of the Province extends. 
 
 3. Nothing in this Act contained shall be construed to imply that the 
 Lieutenant-Governor or Administrator has not had heretofore the powers, authorities 
 and functions in the preceding two Sections mentioned. 
 
Tim I'Xi'CUTivi-: powI'R casf.. 
 
 ARGUMKXT. 
 
 Mk. lii.AKi;. — My I-ords, the Act here complained 
 of is, .'111(1 can be, complained of oidy on the f^'round 
 that it is, in wlioh; or in part, heyond the powers of 
 the legislature which passed it. I quite aj;ree 
 that, if my learned frienils are ahle to demonstrate 
 that it is in some one particilar beyond those pow- 
 ers, the law ^;ives your [.ordsl.ips power to decide 
 that the lej^islation is, so far, bad. I agree further, 
 that if it is beyond those powers in some particul.ir, 
 not separable from the other parts of the Act, whv, 
 of course, tliat \-ice being, c.x liypothcsi, communi- 
 cated to and permeating the whole legislation, the 
 whole is bad. f-tiit, after all, it is only on the 
 ground that the legislation is, in whole or in \r,\n, 
 outside of thelegislative power, that your Lordships 
 can intervene. The law therefore may be wise or 
 foolish ; it may be, in a sense, jirejudicial or bene- 
 ficial to the Dominion t)r tothe I'rovincial interests; 
 it may be vague and uncertain ; it ma)' sin against 
 those canons for the framing of I'rovincial laws 
 which my learned friend has indicated in tlie course 
 of his argument, with the suggestion that they 
 sliould perhaps be even enforced by the Courts, 
 namely, that such l.iws must be vf!ry precise, must 
 be very clearly and ilistinctly within, else they are 
 to be held to be beyond the I'rovinci.il powers ; it 
 may sin against such canons as these ; but still, 
 with these suggestions, I submit, the Court has no 
 concern. The question I repeat is, whether in some 
 one or more particulars Counsel are able toconvince 
 the Court that the law is outside the power of the 
 I'rovince ; and, in answering that (juestion — so far 
 from acting in the spirit in which my learned friend 
 invited the Court to act, of invoking alleged vague- 
 ness, alleged uncertainty, alleged comp-'ehensive- 
 ness, alleged difiicnities in ascertaining how much 
 is embraced in or excluded from the operation of 
 the statue ; and en such grounds declaring it to be 
 outside the power — it is clear that the ("ourt should 
 take oyiposite methods of approaching the subject : 
 that, if there be two feasible constructions, that 
 one should be adopted, which is consistent with 
 the validity of the law ; and that all presumptions 
 and intendments, which can be fairly and reason- 
 ably made in favor of the legislation, should be so 
 made. These rules have been laid down re- 
 peatedly. I refer your Lordships to the very early 
 case of Severn v. the Queen, i Cart., page 41.^, in 
 which Strong J. indicates the general principle: — 
 
 It is. I consider, our fluty to make every possible pre- 
 sumption in favor of such Legislative .Acts, and to endea- 
 vor todiscover aconstniction of theHritisli North .Vmerica 
 Act which would enable us to attribute an impeached 
 statute to a due exercise of constitutional autlioritv, be- 
 fore takingr upon ourselves to declare that, in assumine; to 
 pass it, the Provincial Leejislature usurped powers which 
 did not legally lielonsr to it : and in iloing tliis. we are to 
 bear in mind " that it does not belong to Courts of Justice 
 to interpolate constitutional restricti.ms ; their dutv 
 being to'apply the law, not to make it." It must, there- 
 
 (nr(;, lu-fore we can deteriiiine th.it lli.' I.igisl.itiirc ot 
 tlie I'rijviiue of Ontario had (.'XcvfcliMt tlu'ir |M.ufi« in 
 ii.issiiin tiiis .Act, lie conclusively slmwn th.it it (.uiiiot 
 l)e cl.issed under any ot tlu' subiecls nl knishition i-n- 
 iiniL-rated in section 42 of tlie Hiilisli .N'ortli .\iueric.i 
 .'\ct. wiiicli is to be re.id .is an exception to tiie prccudiiin 
 section. 
 
 .Vnd, in the late case which has been more than 
 once aiherted tt) in this argument, Tiie Qiuin n. 
 Wnsou, your Lordship, Mr. ) ustice 1 liirtou s.iid : — 
 
 I'crhaps there is no rule more clearly and universally 
 acknouledseil in regard to the judicial I'oiistnictioii to lie 
 placrd uiioii statutes wlu-n tlie Ccuirls .uc i.illcd upnii to 
 deride w lielher the siiliji'Ct matter tieall witli is « itiiiii the 
 cniiipi'tence of tlie particular Leijislatiire which passed 
 them, tluiu this -.—that in cases of (liiiil)t, every possible 
 prcsumiitioii .iiid ir dment will be made in favor of the 
 constitutionalitv oi le Act in (luestiun, 
 
 and so on. 
 
 Now, looking at this law from that, which I have 
 just shown is the proper point of view, let usinijuire 
 what tlu; Legislature does purjiort to do. The 
 pre.imble gi\es accurately the elli^ct of the r>5th 
 section of the Hritisii North .America .Act. .\fier 
 that accurate recital, the first cl.uise ])urports, by a 
 general reference, to vtist in the Lieutenant -Covernor 
 certain powers, authorities, and fiuutions. The 
 third clause repudiates any inferenci; that the Lieu- 
 tenant-Ciovernor was not theretofore posst.-ssed of 
 these functions. 'I'herefore the .Vet is, perhaps, by 
 the combined oper.ition of the first and third 
 clauses, turned into a declaratory law, so far as 
 declaration may be useful : as well as an enacting 
 law, so far as enactment may l)e required ; the com- 
 bined operation of those two clauses producing this 
 result. 
 
 I reserve the second clause for separate con- 
 sideration ; and, taking the first, and infpiiring only 
 what extent of power is assumed , I propose to show 
 your Lord ships that by express terms nothing is 
 attempted which is beyond the power of the Legis- 
 lature ; of which proposition there are no less than 
 four distinct indications contained in the statute. 
 
 First, the preamble, as I have stated, accurately 
 recites the si.xty-fifth section of the JJritish North 
 America Act ; and thus shows that the powers 
 which are referred to are such as existed at the 
 Union, and in so far as the same were capable of 
 being exercised after the Union, in relation to the 
 Governments of Ontario and (,)uebec respectively. 
 That is the description which is incorporated, for 
 the whole purposes of the statute, of the class or 
 kind of powers touched ; and if throws, as I contend, 
 a clear light on, and gives a distinct interpretation 
 to any general words in the enacting clauses ; show- 
 ing, as the Court is entitled to conclude, that the 
 powers spoken of therein are powers of the char- 
 acter referred to in the preamble, namely, " those 
 capable of being exercised after the Union in rela- 
 
tion to the (ir)vt:innit!nt of Ontario." Tliat is the 
 first indication. 
 
 Sfcondly : 'I"h(! first claiisr he^iiis l)y this limi- 
 tation of its sul)ji!(ts "111 inatti-rs williiii th<! 
 jurisiiiction of tlu; I.tiKisUuurt! of tht; I'rovincf;." 
 That alone wonid Im- t-nouuli ; for, to any niatttT 
 uliiili is not within tlit- jurisdiction of th(' I. f^isla- 
 tnrt' of tlu! l'ro\incf, the clause, by its terms, has 
 no ,i|)|ilitMtion wh.iifvcr So, having first found 
 the r.uiKi' of purpose by refcirence to tiie preamble, 
 \<)U j,'et the second limitation, " In matters svithin 
 the jmisdiction of the Lej^islature of the I'ro- 
 vi ice." 
 
 Hut, Thirdl)', to itiaUe assurance trebly sure, a 
 further limitation proviiles that the prescribed 
 powers shall be only " so f,ir as this Legislature 
 has power thus to enact." 
 
 What is the effect of that ? It is, clearly, that 
 if any one of the powers which are mentioned in any 
 one (if those Commissions, Instructions, or other 
 documents, which ;ire dealt with by general refer- 
 ence, would be b(!yond the comjietence of the 
 Legislature; to vest in the Lieutenant-Governor, 
 that one is, in terms, excluded. 
 
 Suppose you find a particular Commission which 
 contains twenty powers given to a Lieutenant- 
 Crovernor ; and, of these, nineteen are not such a.s 
 the Legislature could vest in the Licutenant-Ciov- 
 ernor, not such " as had relation to the Govern- 
 ment of the Province of Ontario,"' not such as 
 " the Legislature had power to enact," the nine- 
 teen are not attempted to be embraced ; thev are 
 in terms excluded ; there is no effort to introduce 
 them ; there is a successful effort to omit them ; 
 and it is the single remaining power, that which 
 alone is witiiin the authority of the Legislature, 
 which alone is introduced. Lxcept for the sug- 
 gestion made by the Appellant that this bit of legis- 
 lation cannot be accomplished, save in connection 
 with some particidar act of legislation of another 
 description under Section y2 of the B. N. A. Aci, 
 it is not denied that there are powers which may 
 be vested in the Lieutenant-Governor, powers ne- 
 cessary to carry out, or useful to carry out, or 
 proper in the opinion of the Legislnture to carry 
 out its legislation. It is indeed suggested, and 
 with that I shall deal later, that the Legislature 
 cannot grant these powers, irrespective of or un- 
 connected with some contemporaneous act of 
 legislation of its own, dealing with the topic ; that 
 it is only as incident to such dealing that it can 
 grant these powers. Putting that by for o;ie mo- 
 ment ; assuming that there is, as I think there is, 
 no force whatever in that argument ; it isconceded, 
 that there may be an Act of the Legislature handing 
 over to the P'xecutive of the Province, creating in 
 the I<"xecutive of the Province, an authority to do 
 some things which are necessary or proper in order 
 to carry out some legislation which it is in the 
 power of the Legislature to enact. So that there 
 may be — and that is quite enough for my purpose 
 — there ma*' be powers which the Legislature may 
 vest in the Lieutenant-Governor. It is not at all 
 for my learned friends to say, as they do say. that 
 thev are not to be put to the inconvenience of ran- 
 sacking the Commissions, Instructions, pnd various 
 documents to which general reference is made, in 
 order to ascertain what powers are given to the 
 Lieutenant-Governor. If it were the function of 
 this Court to decide whether the legislation was 
 neat, whether it was in the most convenient shape, 
 whether it was precise, whether it was capable of 
 being improved in form, I could understand my 
 
 learned friends arguing, and arguing with very 
 considerable force, in lavor of a schtrduU-:, in favor 
 of a list of functions, authorities, and powers with 
 which the Legislature proposed to invest the Lieu- 
 tenant-Governor. IJut we are not here to criticize 
 the legislation, ;ind the (!oiirt is not here to ilispose 
 of the ([uestion, on grounds of convenience, neat- 
 ness, form, or precision. It is enougn to say that 
 whatever the Legislature can grant of executive 
 I'ower to the Lieuten.int-C>o\«,'rnor under tin; law 
 and constitution, it does gr;int ; and that it grants 
 no more. It is for my learned friends, who allege 
 that this clause is iilltti vin-s, to show affirmatively 
 that there is no power which the Legislature can 
 constitutionally grant to the Lieutenant-Governor. 
 It may be that if my learned friends had proctied- 
 ed to demonstr.'ite by an exhaustive process that 
 there was nothing in any Ccimmission, in any In- 
 struction, in any document, in ;iny form, underany 
 state of circumstances, nothing whatever which 
 could be vested in the Lieutenant-Governor, there 
 would be some force in their argument that the 
 mere saving clause " so f;ir as the Legislature lias 
 power to enact the same " ought not to protect the 
 statute from a rieclar.-ition of the Court that it is a 
 statute beyond the power. Hut, wheth.er it be con- 
 venient or inconvenient so to guard itself, wlumever 
 the Legislature has chos(>ii so to guard itself, it is for 
 those who attack the statute as beyond the power 
 to show that there is nothing at all in any of the 
 various subjects which are incorporated in the 
 clause, within the power, in order that they may 
 be able to obtain a declaration from the Court that 
 the clause is beyond the power. 
 
 Now, there is yet another limitation. I said there 
 were four. The Fourth is that the legislation is 
 "subject always to the Royal prerogative as hereto- 
 fore " So that if there beany portion of the Royal 
 prerogative which is, at the moment, lawfully in the 
 hands of Her Majesty individually, or in Her hands 
 on the .advice of the Imperial Privy Cc^incil, or in 
 the hands of the Governor-General as Her repres- 
 entative, individually, or on the advice of the 
 (Hieen's Privy Council for Canada, that portion of 
 the prerogative is left intpct ; and capable of con- 
 tinued exercise. There is no assumption f)f exclud- 
 ing the Royal prerogative. There is an assumption 
 of giving powers leaving the Royal prerogative in- 
 tact ; as has been done in fari matcr'ui ; as I shall 
 show your Lordships when I come to deal with the 
 statutes on the subject of pardon, which provide a 
 double or alternative method of action ; which 
 allow of a local dealing with pardons, and which 
 allow alsoof a dealing with pardons by thelmperial 
 authorities, for the same offence. The result 
 then is that the Royal prerogative is saved ; and, 
 being saved, yet some power is assumed to be given 
 to the Lieutenant-Governor. 
 
 Now, an interference to exclude the Royal pre- 
 rogative, an Act not containing that express saving, 
 and which, not containing the saving, had, expressly 
 or impliedly, excluded the Royal prerogative, might 
 or might not have been successful. There is quite 
 enough to treat here without entering into the dis- 
 cussion of that question ; needless here, because 
 it is not here attempted to exclude the Royal pre- 
 rogative. If the Royal prerogative is to any extent 
 affected, it is afiected only by lodging some power 
 to pardon in the Lieutenant-Governor; leaving any 
 right there may be in the Queen or in the Queen's 
 representative, under the constitution, untouched. 
 These, also, may, notwithstanding any words in 
 the Act, pardon if they please. It might be sup- 
 
poseil that tliis would be .i very inconvenient plan ; 
 l)iit there was a reason, as will ajijiear later, a very 
 obvious reason, why, when the powtT of p.irdon 
 was dealt with by lenisl;ition here, somi! power 
 should still be reserved and maintained in the; 
 hands of the Imperial authorities Hut, I ask y<iur 
 Lordships to mark that there is no need here for 
 doinf{ what has betMi frecpiently ilone, implying a 
 saving of the preorogative ; because the saving is 
 express. 
 
 |!pon the general (piestion of the effect of 
 limited legislation, I desire to refer to some observa- 
 tions in tin- case of Munkliotisv v. The (irnitd Trunk 
 Railuny. I take all my citations, in the numerous 
 cases in which that is possible, from Cartwright. 
 I ([note from ^rd Cart., at page 294 ; the language 
 of Patterson, J. : — 
 
 'I'lie Statute in (iiicslion, 44 \'ic., cli. 22, lias l)i rii sixikcn 
 i\\ Ay itlira ; in s (if the ()nl,iiiii I e(^i^lalllrl■. Wlutlu'r it 
 is ^(1 or not ilciieiuls iiikhi tlie interpretatidii wliii '1 is put 
 .ipdii it. It professes, in sec. 2. to apply its provisions to 
 every railway and railw.iy company ni respect of which 
 "the I.eRisl.itnre of Ontario has authority to enact such 
 provisions respertivi'lv." 
 
 Keadint; this literally, no (|iiestion of virfs ran arise. 
 Neither can si;ch a (|iieslion be rea'-<inalilv suggested if the 
 enactment is iiiulerstooil to relate to those railwa'.s <inly 
 to which the leRislative antlioritv ot the I'roviiice is 
 rcstricteil hy the exception conlaineil in the tenth article 
 of section 42 of the It. N. \. .Act, coupled with the 2yth 
 article ol sec. 91. Hiit. if it can he taken to contenijilate 
 all railways in the Province, it may well be asked it juris- 
 diction to pass the Act existed. 1 do not see that the .\ct 
 can be properly read except in one of two ways ; either as 
 intended to ({<ivern all raihvavs in the Province, or as con- 
 fined to those which are not covered by the exception in 
 article 10. To attempt to construe it nn)ro literally, wciuld. 
 in my iud(;ment. lie to treat it as so uncertain as to destroy 
 its value as a piece of practical U'Kislation. \'iolation of 
 its jii.indates or iirohihitions wuiild be punishable by 
 indictment ; and it cannot be .issumcd that the LeRislature 
 inteiuled to throw uiion any company the task and the 
 risk of deciding whether it was, or was not. aimed at as 
 one with respect to which there was authority \o enact all 
 or anv one of the provisions of the .Act. There must be 
 some criterion cajiable of being iirecisely stated, which 
 the Legislature must be supposed to have had in view. 
 The language employed in the second section shows that 
 all railways were not aimed at. while the limited class is 
 not indicated in any other way than by the general reter- 
 encc to the legislative jurisdiction. I think the only way 
 to give a practical construction to this is to understand it 
 as referring to the terms of the B. N. A. Act. and thus as 
 intended to affect onlv those railways over which the 
 Legislature, under the tenth article of section 02, had 
 exclusive jurisdiction, because situated wholly within the 
 Province, and not declared by the Parliament of Canada 
 to be for the general advantage of Canada, or for the ad- 
 vantage of two or more of the Provinces. 
 
 So your Lordships see the learned Judge thinks 
 that a provision, touching every railway ccimpany 
 in respect of which the Legislature has authority 
 to enac* such provision, embraces a definition 
 limiting the provision to one p.-irticular class of 
 railway companies. He gives to the language of a 
 clause, drawn almost word for word as this clause 
 is drawn, that limited interpretation which was 
 needed to make the clause cperative and effective. 
 
 Then Mr. Justice Hurton at the same page, 294, 
 indicates that the Ontario Act 
 
 was intended to apply to those railways only which. under 
 sub-section 10 of section 92 are pl.iced under their jurisdic- 
 tion. namely ; those lying wholly within the Province, and 
 not declared bv the Parliament of Canada to be for the 
 general advantage of Canada, or for the advantage of two 
 or more of the Provinces. That being so, the point which 
 was mainly argued before us docs not necessarily arise for 
 adjudication, and I abstain 'rom offering any opinion upon 
 it. 
 
 Spragge, C.J., at page 291 says : — 
 
 The short Question is. whether the Act of the Legisla- 
 ture of Canada, under which this action is brought. applies 
 to the Grand Trunk Kailway Company. The cjuestion 
 
 assumes this shape because the Act itself, in terms, applies 
 only " to every railway aiul r.iiiway company in respect of 
 which the Legislature of (intaiio has authotity to enact 
 such provisions," ami the iiKpiiry is, whether the Provin- 
 cial Legislature has .iiitliority to apply the provisions ut 
 the .\Lt uiuler which the .iction is brought to thedulend- 
 .mis. I'lie solulion of the question lies iu the intiriiieta- 
 tion proper to be put upon sections m and 92 of the It.N. A. 
 Act. 
 
 The Court at once proceed to eiupiire whether 
 the Legislaturt; had authority to ajiply th.at Act to 
 the Cirand 'I'runk. If it h;id not, the .Act does not 
 ;ipply. Why ? Because the Legisl.iture luis said, 
 we apply this only to the railway coni|)anics in r:;- 
 spect to which we have authority to enact. 
 
 .\ strong indicati<in of tlw effect of a saving of the 
 prerogative is to be found in the construction which 
 lias been finally put u|ion the 71st section of the 
 Sujireme and ICxchequer Courts .\ct as originally 
 ]iassed. Your Lordships will remember that sec- 
 tion ;— 
 
 The judgment of the Supreme Court shall, in all cases, 
 be hn.il and conclusive, and no appeal shall be brought 
 from any iudgnieiit or order ot the Supreme {. onrt to any 
 t'oiirt of .Apiie.il established by the Pailiament of tlreat 
 Irclaiii' 
 
 Cmnu il may lie ordered to lie liearil ; saving 
 any right which Her ,Vlajestv may be graciously pleased 
 
 liritaiu and 
 
 Majesty in Cmnu il ma 
 
 to exercise by virtue of Her Koyal prerogative. 
 
 I'or some lime considerable doubt was expressed 
 whether under this clause, t;iken as a whole, the ap- 
 peal tothel'rivy Council was not barred; and the fate 
 of the .\ct was for a while doubtful. The ultimate 
 decision of the Imperial legaland executiveauthori- 
 ties was,in accordance with the views pressed upon 
 their attention, that the saving of the prerogative 
 was full, entire, and effectual ; that, while the 
 clause interfered with any st.itutory provision 
 which might have been ntade, it left Mer Majesty a 
 f !! di.scretionary right to direct or to allow any 
 appeal to herself to be heard, as before. 
 
 Hi.'RTON, J : — The members of the Judicial Com- 
 mittee said it was rather too late in the day to 
 raise that (juestion. It had granted a number of 
 appeals in the meantime, therefore they said it is 
 not necessary to pronounce any opinion upon that, 
 because after this lapse of time we certainly would 
 not give effect to this objection. 
 
 Coi:nsi;i, — I happen, personally, to know, having 
 been engaged oHicially in that discussion, that the 
 opinion of a very eminent Lord Chancellor, Lord 
 Cairns, expressed and acted on at an early day, 
 was that, under the true construction of the .Act, 
 the rigtit of allowing appeals remained. Indeed 
 upon that (piestion — 1 suppose at this time of day 
 there is no harm in saying so — the fate of the Act 
 appeared to depend. That was the view which, 
 a'ter discussion, was adopted; the view under 
 which the objection which had been supposed to 
 exist to the Act was withdrawn ; and of course that 
 construction must now at any rate be taken to be 
 the settled law. 
 
 I submit that it is perfectly clear that the first 
 clause, speaking as it does only in general terms, 
 and subject to those four limitary provisions to 
 which I have referred, isiiitra fires. It is needless 
 to go into an enquiry — my learned friend has not 
 attempted to enter into an enquiry ; he says it is 
 an enquiry into which he cannot enter, because he 
 does not know what these powers are — but it is 
 needless to go into such an enquiry ; as needless as 
 it would be tedious. It is needless; because the 
 powers which are granted are only such as the 
 Legislature has authority to grant, and only in 
 
8 
 
 matters within tlu! jurisdiction of the l-eK'islaiiirc, 
 and only in matters relatin>{ to the government of 
 tile Province, and only siil)je(:t to the exercise of 
 the Koy.il preroi^.itivt;, as heretofore ; and, ail this 
 liein^' so, the ("ourt will not attempt to i^o hctyond 
 the neL(i->siii(:s of llie case; will not attempt to 
 fraiiit! ,1 sohiniiih', or to draw a line ; hut will say 
 that it c.iiinot pronounce the lirst section of this 
 law to l)(; nittii vires. 
 
 If at any time ;i Lieutenant-Governor of the I'ro- 
 vince assinnes to exercise under this section a pow- 
 er, beyond the le).;islative jurisdiction of the I'ro- 
 vince to confer, he cannot even set up this Act. 
 He can, under this Act, justify only such powers 
 as are within that jurisdiction. No mischief, 
 therefore, can result; no excess of power can he 
 even prima fitiic warranted , and thus noconclusion 
 cm he re.iched s.ive that the judgment below is in 
 this respect correct. 
 
 llAdAii rv, C". J , — .V very excellent ar(»ument in 
 favor of its not being necessary for us to consider 
 that hrs. clause. 
 
 ("oi'NsKL— Certainly my Lord. Th.it is my first 
 position. 
 
 II A(; \i< IV, (,". J.— 1 asked Mr. Robinson, where 
 the subjiict matter was clearly without their juris- 
 diction, yet if they say " if we have power to enact 
 we do enact " so and so, whether that would 
 make the Act bad or good. My view ran in l.ivor 
 of the Court not having to enter into what I would 
 call a mere abstract discussion, fcjilowing what you 
 have s,iid. 
 
 Coii.NSKL — The qu"stion can arise only in the 
 concrete; anil the instant that harm is attempted 
 to be done under the .\ct the attempt fails ; be- 
 cause the power which the Limitenant-Cioxernor 
 assumes to exercise is either given to him by the 
 Act, or it is not. It is not even as^uiined to be 
 given to him, unless the LegisLiture had power to 
 give it to him. They have not assiumed to give 
 anything they had not power to give; therefore no 
 harm can be done under colour of the .\ct. If he 
 trie; t.T do a thing which the Legislature could not 
 assume to give liim power to do, the .\ct does not 
 givj even a prima facie warrant for his attempt. 
 
 HAciAurv, C. J. — I agree in that, with all my 
 heart ; I dread these sort of discussions, 
 
 CouNsici, — Then, my I^ords, I proceed to treat 
 the second clause, primarily, after the same fash- 
 ion, and with the same purpose, for which 1 have 
 been treating the first clause ; namely, just to find 
 out how far it goes. 
 
 How far does this second clan.se go ? It is clear 
 that the same four limitations to which I alluded 
 a moment ago applv to this clause ; that all the 
 limitary provisions which are applicable to the first 
 apply also to the second clause. What is done is 
 to include in the first clause the power mentioned in 
 the second clause. What does it say ? 
 
 The preccdinpr section shall be deemed to inchule tlie 
 power of commuting Jtiul reinittinjj so.itence.s for offences 
 against the laws of this Province, or offences over which 
 the legislative authority of the Province extends. 
 
 Therefore, you read the clause in. You are to 
 include it. You include it just as if it had been 
 expressed, by adding after that general statement, 
 " all powers, authorities, and functions, " including 
 the power," and so forth. Then, it is only, (i), as 
 expounded by the preamble, (2), as limited to mat- 
 ters within the Provincial jurisdiction, (3), so far 
 as the Legislature has power to enact, and (4), 
 subject to the Royal prerogative as heretofore, 
 
 that the power of commuting ,ind remitting sen- 
 tences for ()flt;nces jigainst the laws of this Pro- 
 vince, or offences over which the legislative author- 
 ity of the Province extiMids, is given. 
 
 Osi.Kk, J. -Vou do not read that scidiid clause 
 then as a concretif instance of something that the 
 first clause is intended to apply to .absolutely ' 
 
 CoiJNSKi. -ll.irdly, my I.oid. I submit that is 
 not the better construction. 
 
 Tlie priieclinK Nectioii sh.il! lie deemed to iiicliule the 
 power 111 loniiiiiitiiig .iiid reiiiiMittinu ^elltence^ lor nttiMii es 
 agairl^t the laws <il tlii- Province or citfence> ovei wliii h the 
 legislative authority ot tlie Province cxtentU. 
 
 You cinnot do more than include it. It cannot 
 be nioreethictive th.in its words. If you do iiulude 
 it, it apiilits only, as I contend, to matters within 
 the jurisdiction of the rrovince. 
 
 ( )si.i;i<, J. — Is not the second clause ;i decl.iration 
 that th.'it particular thing is within the jurisdiction ? 
 
 ("ocNSKi.— I admit, my Lord, that it may fairly 
 be held to be ,1 declaration that there is some one 
 instance, at least, of commut.ition or remission of 
 sentence for offences which is within the juris- 
 diction 
 
 HAfiARTV, C. J. — Oh, yes. 
 
 Coi'.ssia, — I think, if your Lordships should hold 
 that there is no one thing in the w,iy of commuta- 
 tion, or remission, which is within the Provincial 
 jurisdiction — this statute is an adirmation of the 
 contrary view, namely, that there is some one such 
 thing within ih.it jurisdiction ; and, if you find that 
 there is nothing on which the law can operate, 
 whether it comes withrn the technical terms of 
 ultra vires ov not, certainly your Lordships are face 
 to face with a practical (piestion ; and I think jj-ou 
 might properly and usefully make the appropriate 
 declaration. My position is not exactly th.it to 
 which your Lordship Mr. justice Osier has pointed; 
 it is rather that the .\ct limits the provision .is to 
 the power of commuting and remitting sentences 
 to those classes of cases, if any such there be, 
 which .lie within the jurisdiction of the Province 
 of Ontario, and operatesonly to the extent, however 
 limited, to which the Legislature has power to 
 enact. 
 
 Hagaktv, C. J. — You meet his objection, that 
 the words are wide. 
 
 CouNSKL — Yes. My learned friend I think ad- 
 mitted, or almost admitted that the Act would 
 fairly operate on the remission of a fine. If you 
 find one subject only upon which it can operate, 
 it operates upon that subject, and upon nothing 
 more ; and therefore, it does not exceed the powers 
 of the Legislature. 
 
 Mk. RoiiiNso.s: — I do not know that I admitted 
 that it included the remission of fines. 
 
 Coi,'nsp:i, — My learned friend is not prone to 
 make admissions. Then take it that my learned 
 friend did not, as I supposed, admit it. He certainly 
 made a distinction on that head ; and I say that if 
 the distinction which he made does exist, and to 
 the extent which I thought he made it, namely, 
 that one case is within and the rest are without the 
 power, it is enough for my purpose to show that 
 one is within, and the statute then applies to 
 that only ; and even attempts no more. But, be it 
 remarked that if there is nothing within the clause, 
 there is still no attempt to go beyond the powers of 
 the Legislature; and the extreme effect of this 
 whole legislation, even as to the second clause, 
 comes to be that there may be nothing upon which, 
 according to its terms, the clause can operate. 
 
O.ii.KU, J. —1 was Koinx to ask what the statute 
 <lifi. 
 
 C()i;nsi;i. — If your Lordsliiiis (iml, alliriuativL'ly, 
 that there is notliit)^' whatt;\iT on which this 
 clause can opt-rate, such a linilinK will, oi course, 
 practically amount to this, that tlu-re has l)i;en an 
 attempt, in some sort, to ^o beyond tin; It^K'islative 
 pow(!r. Hut the practical result ol such a .ledara- 
 tion will he that the clausi; does in terms no(hin>{ 
 whattner, because the LeKis!ature has no power 
 whatever. 
 
 Hut, if we hnilanythiHR whatever upon which the 
 clause cm operate, if there be sotnethiuf,' within, 
 .'ind also someihiuK without, the power, then the 
 claust- operatt!s, ac'CordiiiK to its terms, oidy upon 
 the fornu-r ; it operates, aci:or(linj,' to its terms, on 
 those thiuRsoidy which are within the Icf^islative 
 authorit) ; and, I say conhdently th.at there is 
 much on which it does oper;ite. 
 
 Ost.icR, J. — I'roin the point of view y^iu are now 
 arnuinjj, what is the object of the second section ? 
 Would not the first one be sulhcient ? 
 
 ("ot.'Nsi'.i. -I really do not know the precise 
 object. I'niiuestion.ably, I suppose the first would 
 be sullicient. 1 have not sidficiently studied all 
 the Commissions, .and so fortii, to see whethtn- this 
 pow(!r w.is in them, or in which of them. 1 cannot 
 answer that (pu*stioii positively ; bid I suppose the 
 <)i)ject was distinctly to indicate that the i.efjisla- 
 tur(! conceived th.ii in some one or ntort; classes of 
 cases they had power to f^ive the Lieuten.ant-Gov- 
 ernor authority tocommuteor remit sentences; and 
 that to the extent to which they had such power 
 they wanted it to beexpressly understood that they 
 were exercising; it. That is, ;is I in'.erpret it, the 
 meaning; and object of the second section, 'J'here 
 can be no ipiestion th.at it was the view of the I.eg- 
 islaturo that there was some inst.ance, by them lefi 
 undefined, in which tlu;y could ^;ivethat power to the 
 Lieulen.int-dosernor. \\'hene\er they could, to 
 the extent to which they could, they f,'ave it. 
 
 Now, it is suf^^ested by my le.irned friend that 
 this second cl.iuse may ojier.de on matters with 
 which the I'roviiu es niiKht have dealt, or perh.ips 
 liatl dealt, but which have become " crimes " uii;ier 
 the H. N. A. Act by Dominion leKislation. 
 
 I point out that the limitations to which I have 
 referred completely exclude any daiiRei that the 
 power can be exercised in respect of a crime made 
 such by Dominion leRislation. My learned friend 
 read the second section as if it was to be read bv 
 itself; ;ind argued that it gave a power of " com- 
 muling and remitting sentences for offences against 
 the laws of this Province, or offences over which 
 the legislativ'e authority of the Province extends," 
 without any light to be derived from the former 
 section. I say no ; I say thru the light which we 
 derive from the former section shows that it is only 
 in matters within the authority of the I.egislature 
 of the Province, and only .so far as the Legislature 
 has power to enact that the power is given ; and, 
 when my learned friend asserts that it is given in 
 such sort that a man sentenced to imprisonment or 
 line, in respeci of a crime under a Dominion Act, 
 could be pardoned ; in such sort that he could be 
 relieved in an'- shape or sense from the effect of 
 that sentence ; I say no. I say it is perfectly clear 
 that the limita-y provision^ to which I have refer- 
 red, apart from the language of the second section 
 itself, prevent the possibility of any such conclu- 
 sion ; because the matter would not be within the 
 jurisdiction of the Legislature of the Province, it 
 
 would not be a matter as to whiih the I .egislattiri; 
 had power to enact. My learned friend himself 
 argues ih.it it is not within tin; pouer. ht^ argues 
 that it is bey(Uid the power of the Legishdure. I 
 dare say it is. I am not ( oncerned now to dilter 
 with him. I say only that, if it is, as it probably 
 is, lieyond the power, than this second cl;iu.se, hav- 
 ing reg.ird to its reference to the hrst, does not 
 touch It ; irresjK'ciivi; altogether of its own lan- 
 guage " offences against the laws oi the Province, 
 or ollences over which'tlie legisl.iti\e .authority oi 
 the Proviiui' extends " 
 
 l''.\'en apart .altogether from those importeil limi- 
 t.iry provisions by which the Language is hedged 
 around, I contend that the langil.ige of the clause 
 itself, upon its fair ami reasonable interpretation, 
 and still more u])on siicli favorable iiderpret.ation 
 and inteiulment as the Court is bound to give to it 
 here, is iu)t so wiileas my learned friend suggests. 
 It deals, not with crimes, but with sentences; it 
 deals with the power of commuting and remitting 
 a sentence for an offence ag.iinst the law of the 
 Province. It de.ds, therefore, with the power, in 
 mattt^rs within the jurisdiction ol the Legislature 
 of tin; Province and so f.'.r as the L<tgislature has 
 power to en.ict, of commuting and remitting a 
 sentence for an offence against the lav of the 
 Province. The Lieu ten, ant-' lover nor m.iy commute 
 the sentence, he may remit thesentence. Now, h.ave 
 the Legislature the power to authorize the Lieu- 
 tenant-Ciovernor to commute or remit a sentence 
 awarded, under a Dominion .Act, for an act which 
 is a crime under the law of Canada, .and is also an 
 offence against the law of the Province ? it is not 
 necessary for your Lordships to answer that 
 question ; because if the Legislature have that 
 power they have given it, but if tlitiy have not that 
 power they have not given it ; they ha\e not even 
 pro(esse<l to gi\e it. They have given power only 
 in m.atters within the legislative jurisdiction of the 
 Province. Therefore, my learned friend conjures 
 up difficulties ; he propounds to your Lorflships a 
 construction of this clause far wider than its 
 reasonable meaning, far widerth.an its fair interpre- 
 tation, even standing by itself; and he rejects the 
 limit.ations which apply to it as contained in the 
 first clause ; all in order that he may convince your 
 Lordships that it cont.ains objectionable and ultra 
 vires prcnisions ; and he asks your Lordships, upon 
 such a theory, so to declare. 
 
 I repeat, even ad nauseam, and with reference to 
 the second what I have said with reference to the 
 first clause, that if it can be found th.at there is 
 any one class of sentences which the Legislature 
 has the power to authorize the Lieutenant-Gover- 
 nor to commute or remit, that is enough ; the law 
 is good ; there is something on which it does 
 operate ; and it professes to operate no further 
 and upon no other sentences, than those to which 
 the legislative jurisdiction of the Province extends, 
 and in respect to which the I-egislature has power 
 to enact. 
 
 I submit it to be of the first importance that in 
 disposing of a question of such magnitude as this, 
 whether a Legislature has transcended its powers, 
 due and full effect should be given to the cautionary 
 language and the limiting wcjrds with which that 
 Legislature surrounds its actions ; and that, as the 
 Court would in the concrete, in the particular case, 
 hold that the Act had not the effect of giving the 
 power which was assumed to be exercised by the 
 Lieutenant-Governor, so here in this preliminary 
 
10 
 
 and general proceeding in which, on an abstract 
 case, the Court is asked to give an interpretation 
 to the Act, it will adopt the same wholesome and 
 saving interpretation, that the Act professes to do 
 no more than that which the enacting Legislature 
 had power to do. 
 
 Then, my learned friend says the clause deals 
 with crimes, Dominion matters; and he conjures 
 up a number of difhculties on a supposed state of 
 circumstances hardly conceivable as practically 
 existing. 
 
 Osi.KR, J. — Just make your last statement plain 
 to my mind. "Laws of this Province" in that 
 section mean, according to your argument, " laws 
 which this Province has power to pass, has passed, 
 or may pass ? " 
 
 Counsel— Or may pass ; that is my view of it, 
 my Lord, and I throw upon that the further light 
 given by the phrase " in matters within the juris- 
 diction of the I-egislature of this Province." I 
 add that. Hut, I say that standing alone, if I had 
 not that light, " the laws of this I'rovince," when 
 spoken of by the Legislature of this Province, mean 
 " the laws which have been or may be passed by 
 the Legislature of the Province." I refer to the 
 preamble, also, as throwing some light upon that ;— 
 
 And whereas by section 92 of the said .Xct, it was provid- 
 ed that in each I'rovince ot the Ooiniiiion ot t'aiiada the 
 l.CBislatuie iiiny exclufi-ely make Imts in relation to 
 matters c-fniiiit; witinn tlie classes ot subjects thereinafter 
 mentioned. 
 
 That is recited in the preamble ; and then the 
 laws of the Province are spoken of in the clauses — • 
 meaning therefore, laws wliicli the Legislature may 
 make, has made, or may thereafter make, as referred 
 to in the second part of the preamble. 
 
 Then, as to the " laws and offences over which 
 the legislative authority of the Province extends." 
 The meaning of that is, that there were prior to 
 Confederation, laws in force in the Province 
 whether by the common law, by Imperial legislation 
 introduced into this country by ourselves, by the 
 former Provincial authorities, or by the law of the 
 old I'rovince of Canada, which laws fell within that 
 body of law, that mass of subjects, which became 
 after Confederation Provincial — for instance, of- 
 fences .against municipal by-laws. As to all that 
 body of prior legislation which, upon the passing of 
 the B. N. k. Act, fell within the I'rovincial scope ; 
 which the Province could the ne.\t day, if it pleased, 
 have repealed ; which it could amend at its plea- 
 sure — as to all that body of laws, if by any portion 
 of it there is created an offence, that is an offence 
 over which the legislative authority of the Province 
 extends. So that, if it be found that any par- 
 ticular sentence is a sentence due, not even to post- 
 Confederation Provincial legislation, but to ante- 
 Confederation legislation enacted on a matter and 
 after a fashion in which the Province after Con- 
 federation might itself have dealt at its pleasure, 
 the power, as is reasonable, shall extend to that 
 case, as well as to those in which the Province 
 itself, has after Confederation, passed its own 
 enactments. 
 
 Now, as I was aliout to say, it is by what I must 
 call a very fantastic operation of the mind, that we 
 are asked to adopt the conclusion that great diffi- 
 culty and inconvenience can arise from this clause 
 with reference to Dominion matters. What my 
 learned friend suggests is that the Dominion Legis- 
 lature mav make that a crime which the Provincial 
 Legislature has made or may thereafter make an 
 
 offence. I think a very serious question might arise 
 as to whether in any matter which the iJominion 
 Legislature — acting whether rightly or wrongly, in 
 the sense of propriety, but acting within its consti- 
 tutional power — had mad'3 a crime, the I'rovincial 
 Legislature could thereafter interfere by making it 
 an offence. It is perhaps possible that, if by such 
 valid exercise of the Parliamentary power of Can- 
 ada the matter had been converted into .1 crime, 
 there might be abstracted from the Provincial 
 jurisdiction — not the matter, indeed, but the 
 power of making it a Provincial offence. It is a 
 difficult (piestion, on which one would wish to 
 reserve one's opinion ; because it is needful to see 
 to what extent this would carry the authority of 
 the Dominion parliament ; for, as I observed, in 
 Queen vs. \V<iso)t, it is clear that a too liberal in- 
 terpretation of that authority as to Provincial 
 crimes would make it like Aaron's rod ; and it 
 might swallow up the other powers. Jiut, are we 
 to agree, from such a possibility as is set up, that 
 the two Legislatures would go to work each making 
 different sets of crimes and offences, out of the 
 same act of an individual, and for each such 
 crime or offence providing different punishments, 
 and thus of course providing that a man might be 
 exposed to that which is contrary to a fundamental 
 rule of British jurisprudence ; that for the same 
 thing no man shall be put more than once in peril ? 
 Are we to agree that the Lieutenant-Governor may 
 commute the Provincial sentence, and that the 
 coinmutation of thaf sentence for that offence may 
 have a certain effect upon the Dominion sentence 
 for the Dominion offence ? No. Even if we make 
 all these far-fetched assumptioms, all that is done 
 by the Lieutenant-Governor is to commute or 
 remit the sentence which was passed under the 
 Provincial authority for the Provincial offence ; 
 and he has not commuted or remitted — he cannot 
 apparently commute or remit the Dominion sen- 
 tence for the other offence or crime, the other rind 
 separate offence or crime, legally speaking, which 
 was accomplished indeed by the same transaction, 
 but which was made a crime by the Dominion 
 while it was made an offence by the Province. 
 Therefore, I think there is nothing whatever in 
 that. The dealing is with the Provincial sentence, 
 under the I'rovincial law, for the act, which 
 is made a Provincial offence ; and as I say it 
 includes acts which are made offences by Pro- 
 vincial law, or which have been made offences by 
 ante-Confederation laws, in matters within the 
 range of subjects on which the Provinces had, after 
 Confederation, exclusive Provincial jurisdiction, 
 which they may later on at their option exercise ; 
 but it does not include the sentence for the crime 
 under the Canadian law. 
 
 My learned friend read an article in a periodical 
 with reference to the effect of that very early statute 
 of the Dominion, which made misdemeanors out 
 of such matters, prohibited by Provincial laws, as 
 were not made offences otherwise. Well, if one 
 were discussing the policy or propT'iety, or even 
 the constitutionality of that legirdation, there 
 would be very much to be said aga nst its policy 
 and propriety and even its constitutionality. It may 
 be reasonably urged that if the Provincial Legis- 
 lature chooses to prohibit an act, that Legislature 
 has under the constitution full and ample power of 
 itself enforcing its prohibition by its own legislation. 
 It has power, by imprisonment up to the term ot 
 life, it has power by fine, unlimited, to enforce its 
 
I I 
 
 prohibitions. And if a Provincial l^egislature has, 
 in any particular instance, simply prohibited an act, 
 without providing a penalty lor the breach of its 
 prohibition, any dithculty in '.nforcing its law is 
 due only to its having onrlted to provide a 
 penalty, and is to be renieditd only by its own 
 action. I should say therefore, that a statesman- 
 like consideration of the tlivision of the powers of 
 the constitution would indicate that the l)ominion 
 legislation to which my learned frienil has referred 
 is, not only needless, but improper and unconstitu- 
 tional; tliat the Provincial authorities ouglit to be 
 left to enlorce their own laws by their own penal- 
 ties; aiul that, if they choose to leave a law 
 unenforced by a penalty, it is their own sole concern. 
 Hut the (juestion is of no immediate consetpience ; 
 because it is only the sentence under the l'ro\incial 
 law which is touched by this Act. If more there 
 be, and if your l-ordships hold that more woulil be 
 beyond the jurisiliclion of the Legislature, that 
 more is not included. 
 
 Now, as I have said, some things are, I think, 
 clearly within the Provincial power. For instTnces, 
 penalties payable uniler its laws to an informer, 
 penalties payable to a municipality, penalties 
 pa} able to private individuals, lines payable to the 
 use of the Province. My learnetl friend said he 
 would not admit it ; but I ask your Lordships 
 whether it is arguable that the Legislature, which 
 has unquestionable power to enact that a man 
 shall be liable to pay a penalty to an individual, or 
 to a municipality, or to an informer, or a fine to 
 the Treasurer for the uses of the Province, has not 
 power to remit that penalty, to waive that fine ; 
 has not power to undo its act ; has not power to 
 say that the penalty or fine imposed under its 
 authority shall not, under certain circumstances, 
 be eligible? It seems to me to be impossible to 
 contend, seriously, that such a power does not 
 reside in the Legislature. And indeed, in other 
 parts of his argument, my learned friend, speaking 
 in general terms acknowledged that there were 
 several ways, at any rate more than one way in 
 which the Legislature might have done this very 
 thing. Hut he said that this was not the right way ! 
 If I am to draw a meaning from that ol)ser\ation, 
 the only meaning I can draw is, that the Legislature 
 have the power to provide the machinery in con- 
 nection with the imposition of any particular fine 
 or penalty ; that, when enacting the law providing 
 for the imposition of the fine, or (lenalty, they have 
 the power to provide for its remission ; but they 
 cann(<t e.\ercise that power generally, or as an 
 isolated and detached piece of legislation. 
 
 Now, first of all, have they the powtiT qid) cuiiqin- 
 modo ? The Legislature, for example, enacts that 
 a particular act shall be prohibited, and that the 
 sentence for the non-observance of that law shall 
 be a fine pnvable to the Treasurer of fhe Province 
 for the public uses of the Province, or to the Crown 
 for the public uses of the Province. That is within 
 its power, surelv. If that be within its power, can 
 it not "do what its likes with its own " : with the 
 monev which it orders to be paid to the public 
 uses of the Province, to the Trensurer of the 
 Province, or to the Crown for the Province ; with 
 its own monev ? Can it not give up what it has ? 
 Can it not viekl that which itself has e.cercised a 
 legislative right to fake ? Can it not provide a 
 machinerv for the yielding of it, for the giving of it 
 back, for the remitting of it? Cannot the Legis- 
 lature ivhich directed or authorized the imposition 
 
 of the fine, assuming, if it pleases (however impro- 
 perly, and contrary to sound principles as to the 
 division of powers) assuming the judicial as well 
 as the legislative power, impose the fine itself? 
 Can it not repeal the law wliich imposed the fine ? 
 Can it not by Act of the Legislature relieve the 
 party from the fine ? Can it not by .Vet give up 
 a Crown debt ? Can it not by .\ct inteifere with 
 and abrogate the right of the informer, or other 
 private person interested ? Surely, yes. Well, 
 under the .authorities, nothing is clearer than this, 
 that what the Legislature cm do, it can delegate 
 the power to do ; and that it can provide for the 
 doing of it in whatever way it deems most con- 
 venient and effective. 
 
 '1 hat (juestion was of course, as I will show 
 later, the subject of discussion and of controversy ; 
 but it is now settled : and the principle is cle.'ir, 
 that what the Legislature can do legislatively it 
 can do by delegation ; nor could anything make 
 our constitution more lame and defective than to 
 conclude that matters, which confessedly might be 
 infinitely better disposed of by delegation to a 
 single executive or judicial authority, must yet be 
 disposed of by the direct action of the Legislature 
 itself, because unhappily its power is not wide 
 enough to enable it to provide for their disposition 
 by delegation. 
 
 Ha(;.\rtv, C. J. — Dropping the word " pardon" ; 
 suppose the legislation was that in all cases of 
 penalties directed to be paid to the I'rovincial 
 Treasurer, any person aggrieved might present a 
 petition to the Lieutenant-(iovernor, and that the 
 case might be investigated, and the penalty remit- 
 ted or refunded. Practically, that would be doing 
 the same thing. 
 
 CouNSEi, — It is the same thing. 
 
 H.^GARTY, C, J. — It would avoid the obnoxious 
 word "pardon," and it would deal effectually with 
 the thing. 
 
 CufNSKi, — Hut the obnoxious word "pardon" 
 does not occur. 
 
 Hagartv, C. ]. — Hut, I mean we have heard a 
 good deal about that. It would be arriving at the 
 same result by prescribing the way t() do it ; that 
 any person directed to pay a fine might petition, 
 and the matter might be brought before an ap- 
 pointed man for investigation, and the amount, in 
 the judgment of sav the Lieutenant-Covernor, be 
 remitted. It is doing just the same thing of 
 course. 
 
 CorNSF.r. — It is the same thing. 
 
 MacLfnnan, J. — The power of pardon could be 
 exercised by the Legislature? 
 
 CoiNSET. — It would be in a sense an .\ct of grace. 
 There are certain things which even Parliament 
 cannot do, for instance Parliament cannot dissolve 
 itself. 
 
 MacLennan, J. — I was speaking of the Legisla- 
 ture as distinguished from I'arliament. Could the 
 Canadian Parliament remit a Provincial penalty ? 
 
 CofNSEi. — I'nfpiestionably, no. 
 
 MacLennan, J. — Or a municipal penalty? 
 
 CofNSEi. — Unquestionably, no. The only way 
 in which the Canadian government, as a whole, by 
 the exercise of either legislative or executive power, 
 can affect Provincial laws is, as I understand it, 
 (except in one or ( ,vo cases in which there is con- 
 current legislativt power), by the exercise of the 
 power of veto or disallowance ; hut the law once 
 passing beyond that power, and being efficacious, 
 
12 
 
 there is an end (jf all power to deal with it in any 
 wa >> . 
 
 Hagaktv, C. J. — If Mr. Robinson is right in his 
 argument I suppose the {Jovernor-(ieneral could 
 remit the punishment for the violation of some 
 local Act ? 
 
 Coi;.\si:l — That is hisposition. Mr. Robinson's 
 argument is that the power is there, and is there 
 exclusivel)'. That is the (juestion in the cause. If 
 the power is there, and is there e.\clusi\ely, this 
 second section eflects nothing wiiatever. Hut, it 
 is (juite clear that by this construction the power 
 of the local Legislature, to the extent to which its 
 power depends upon its laws being enforced, is 
 destroyed after the same manner in which, as 1 suc- 
 cessfidly jioinled out to vour Lordships in TlitCJuetii 
 71. Wtisoii, it would be destroyed by the suggestion 
 that procedure was in the hands of the Dominion 
 Legislature. If you are to say of one Legislature, 
 supreme within its own domain, having an extensive 
 power of enacting laws and an extensive power of 
 enforcing those laws, that its power of making its 
 laws effective and securing their observance, its 
 power of seeing that its sentences are executed, is 
 to be subject to the views of any other Legislature ; 
 then any law which is opposed to the views of that 
 other Legislature may be rendered nugatory by 
 the simple process of saying — 
 
 Well, we are wi'iK to parilmi cvcrylnMiy yon have coii- 
 victi'd. Von say tliat a fraiul upon a municipality shall be 
 punished in such ami such a way, but ue liiink it ouKht 
 not; ami tlierotore wlien you ha\c proliihitcd sucli and 
 such a dealing by the Treasurer ot a Provim iai munici- 
 palitv under such and such a penalty, every time there is 
 a conviction uiuler your laws we ino|)ose to pardon your 
 ottender under uur.s. 
 
 Your Lordship sees the seriousness of the whole 
 question. The seriousness of the whole cpieHtion is 
 that the real effectiveness and \alidity and utility 
 of laws are, by the Constitutional .Vet itself, 
 indicated to depend upon their sanctions ; and if, 
 while the I'rovi.icial Legislature is, on that theory, 
 given power to apply sanctions to its laws, the 
 power of remitting those sanctions is to he given 
 to another authority, then the confessedly necessary 
 means of enforcing thu Provincial legislation may 
 practically be withdrawn from it at the will and 
 pleasure of that other authority. That other 
 authority cannot indeed itself make laws tipon 
 these subjects, but it can render nugatory and 
 abortive the laws which the Provincial Legislature 
 alone can make. That is theseriousand important 
 question before your Lordships. 
 
 Burton, J. — And if the Parliament could not do 
 it, of course the tiovernor-General could not do it 
 alone, which appears to indfcate very clearly that 
 the prerogative, which is so much talked of, is di- 
 visible, as the other power? 
 
 Counsel — Yes my Lord, that is my argument ; 
 that that prerogative is divisible; and that we find 
 this part of it just where it ought to be in order to 
 render th.e ('onstitution symmetrical, harmonious, 
 or even w orkable. 
 
 All that I am concerned to do at this time is to 
 show to your Lordships that there is someone thing, 
 authority to do whicli the Provincial Legislature 
 could and did u der ttiis second section confer 
 upon the Provincial I^ieutenant-Ciovernor. If, for 
 example, the Legislature could say, as to any fine 
 payable to the Treasurer for the uses of the Pro- 
 vince, that the sentence to pay that fine might be 
 remitted by the Lieutenant-Governor, the ,\ct is 
 saved, and we have no concern with the (piestions 
 
 conjured u.p by my learned friend. So far as these 
 are questionsofdiiliculty and inconvenience merely, 
 we have nothing to .say t(j thein under any circum- 
 stances — so far as they are diflicidties extending 
 even to the (juestion of jurisdiction, yet, if we have 
 found something on which the Act operates, that is 
 enough; since the very language of the Act limits 
 its operation to that which is within its jurisdic- 
 tion. For, even if niy learned friend's fancied diffi- 
 ctilties go so far as to show that any one of the 
 matters to which he lias referred would be ultra 
 vii;:s, that matter is outside the .Vet ; and the .\ct 
 is good notwithstanding. 
 
 N'ow, before going into the general line of argu- 
 mf^ni I wish to deal with some of the more specific 
 objections. 
 
 One objection is that the Legislature is either 
 interpreting or amending the provisions of the 
 B. N. .-V, .Act, both of which are said to be legisla- 
 tive sins. Hut, your Lordships will observe that 
 the Legislature may, and constantly does, in very 
 many respects alter the provisions of the H. N. .\. 
 Act, as well as the provisions of law imported into 
 the Provincial system under the operation of the 
 B. N. \. .Vet. Why, the very ("onstitution of the 
 Province, is, by the express terms of the B. X. A. 
 Act, amendable, with a single exception. There- 
 fore, the general observation that the B. X. .K. 
 .\ct cannot be amended by Provincial Legislation 
 is of no force whatever ; unless my learned friend 
 co;;ples that observation with proof that, in the 
 particular in which he suggests that the B. N. A. 
 .\ct is being amended, it is not amendal)le. 
 
 .\s to the power of interpretation. Interpretation 
 or declarati'.)n is, I suppose, always harmless, and 
 verv often useful. If, under the pretence of inter- 
 pretation, there is really a change — and we have 
 known legislation of that description — that change 
 is operative or not just according to the decision 
 of the (piestion whether the Legislaturi; had jiower 
 to make the change or no. If a Legislature, having 
 power to change the law, chooses t(j declare that 
 the meaning of the law is thus and so; then, 
 although it ma\- be juilicially determined that that 
 was not theretofore the meaning of the law, and 
 that the law was, in fact changed by the declar- 
 ation, still it is in fact changecl by means of the 
 declaration, always provided the Legislature had 
 power to make the change ; and thus a declaration 
 may be an amendment, and is at any rate a decision, 
 in matters within the legislative competence. 
 
 This law, however, does enact its provisions ; 
 also by its third section enacting that nothing in 
 the law- 
 shall be construed to implv that the Lieuteiiant-Gove.nnr 
 or administrator has not had heretofore the i)owers, 
 authorities and functions in the preceeding two sections 
 mentioned, 
 
 Then, my learned friend objects that this is legis- 
 lation as to the office of the Lieutenant-Ciovernor, 
 and is excluded by the first head of section 92. 
 
 1 may deal further with that later. I point out 
 now, however, that this provision has regard, first 
 of all, to the Constitution. It is a power to amend 
 the Constitution, ex( -^pt as to the office of Lieu- 
 tenant-Governor. You,- Lordships see, therefore, 
 that you must read the whole clause. By it the 
 Legislature can amend the Constitution, can intro- 
 duce a Legislative Council if they like, just as 
 Quebec can abolish, as Manitoba has abolished, 
 its Legislative Council. Yet the Constitution, 
 (while amendable in various extensive ways, while 
 
13 
 
 susceptible of changes making it, to suggest a vio- 
 lently improbable procedure, very much more 
 despotic; greatly limiting popular powers; even 
 providing, in lieu of a representative Legislature, a 
 nominative body as the law-making Assembly,) 
 cannot be so changed as to interfere with the office 
 of Lieutenant-Governor. This means then that 
 those elements of the Constitution which can be 
 properly deemed to be the parts of the Constitu- 
 tion relating to the office of the Lieutenr it-Cov- 
 ernor arenot to be changed ; and that for an obvious 
 reason, because the Lieutenant-Governor is the 
 link between the Federal and the Provincial, aye and 
 between the Imperial and the Provincial authority ; 
 lie is the means of communication, he is the chain 
 and conduit of Imperial as well as Federal connec- 
 tion; and therefore hisofficein the Constitution, his 
 constitutional position as a Federal officer, is not to 
 be affected. Within this limit the details of Exe- 
 cutive power in all local matters must necessarily 
 be changeable; and they may be changed. The 
 64th section expressly gives power of alteration. It 
 is quite impossible to suppose that a Province which 
 has actually the power to alter its Constitution, 
 which has power to deal with a thousand different 
 subjects requiring provision for separate Executive 
 action every day, has not power to deal with those 
 details of the management of the Executive power 
 which are complementary to, and lorm proper in- 
 cidents of that legislative power which it has e\er- 
 cised, is exercising, or may exercise. I must add 
 that it seems an extraordinary thing that the Fed- 
 eral authorities should object to a method of legis- 
 lation as to executive power, which is not merely 
 consonant with the general principle of the British 
 Constitution, under, according to, and on the 
 theory of which principle this Act is in truth 
 framed ; but which actually tends to increase the 
 power and aggrandize the position of the sole link 
 between the Dominion and the Province. 
 
 Your Lordships will at once see how devoid of 
 merit, so to speak, is an objection of this nature. 
 If the Local Legislature is to be told, " you cannot 
 add to the functions of the sole Provincial Officer 
 who is appointed by the Dominion Government, of 
 the sole Provincial Officer who is under the con- 
 trol of the Dominion Government, of the link be- 
 tween the two, of the officer whose Commission 
 says he is to act according to the instructions of 
 the Governor-Cieneral, who holos his ofiice in a 
 certain sort, in a limited sense and tosomedegree at 
 thepilfc.isure.inacertain sort, in a limited sense, and to 
 some degree under the control of the I'ederal author- 
 ities," it seems to me a most extraortiinary preten- 
 sion, which will necessarily lead to most injurious 
 results. To what ? Why, to these, that the Local 
 Legislature will be obliged to .set up some other 
 executive authority. When the\ want to pass a 
 piece of legislation which demands executive action, 
 which demands adinitiisiration, which demands for 
 its working individual power, the exercise of dis- 
 cretion or authority, they will be obliged to set up 
 somebody else, some permanent or temporary 
 officer of their own to carry out their wishes, to do 
 those executive acts which the I'ederal power, ex- 
 traordinarv to say, i.s insisting that the Province 
 cannot vest in the Federal Officer. 
 
 So that I ask y<jur Lordships to consider this 
 proposition with great jealousy. It seems to me 
 most dangerous. I think it would be very unfor- 
 tunate for the good working of the Constitution, 
 and W'juld be most absurd, and indeed suicidal, for 
 
 those who look at it fro' 1 the Dominion point of 
 view, to cast the least doubt not merely upon the 
 power, the abstract power, but upon the propriety 
 of the Local Legislatures, wherever there are ex- 
 ecutive functions to be bestowed, bestowing them, 
 just as they are here bestowed, upon the head of 
 the Executive Ciovernment of the I'rovince, be- 
 stowing them upon that Executive head who is the 
 link, and the only link between them ind the Dom- 
 inion. In truth it might be be better argued that 
 it would be unconstitutional to confer these pow- 
 ers on any other than the Lieutenant-Governor. 
 
 There are some matters in which a course has 
 been pursued in both bodies to some extent difier- 
 ent. Executive powers have been given from time 
 to time to Ministers; to be exercised, of course, 
 under responsibility, but to be exercised directly by 
 and in the names of the Ministers; which were 
 formerly given to the Governor. For instance, the 
 Crown Lands were, if I rightly remember, very 
 shortly after Confederation practically vested in 
 the Commissioner of Crown Lands. So again with 
 reference to extradition. Take the Imperial Legis- 
 lation, and take the Dominion Legislation; certain 
 powers as to Extradition warrants which were 
 given by .\ct to the Secretary of State in England, 
 have been given to the Minister of Justice in Can- 
 ada, instead of being nominally conferred on the 
 Governor-General. There are instances of this 
 nature in which convenience, from time to time, 
 does point out that you shall appoint some other 
 functionary than the head of the Executive to do 
 some executive act ; but, speaking generally, 
 simplicity, efficiency, and the theory of the British 
 Constitution are all furthered by the adoption of 
 the general rule that executive powers shall be 
 vested in the head of the Executive; to l)e dis- 
 charged, of course, under advice ; to be discharged 
 of course, upon the responsibility of some Minister, 
 who is to answer for that advice to the Legislature, 
 and ultimately to the electorate. 
 
 Therefore, to say that, if the Local Legislature 
 thinks it prudent to legislate upon some one of the 
 matters incontestably within its jurisdiction, after 
 a fashion which requires for the execution of its 
 l,iw the exercise of certain administrative powers, 
 upon matters with which it could, if it pleased, 
 deal directly from session to session, but which 
 can be more efficiently and properly performed by 
 an iiidi\ idual ; to say that there is the least objec- 
 tion to nssigning those executi\e functions, which 
 the Legislature properly frcnn time to time creates, 
 to the head of the ExecHitive, to the Lieutenant- 
 Governor, seems to me to be out of the question. 
 It is not merely within their authority, but I say 
 it is the fit and proper way in which they should 
 exercise their authority. 
 
 Well, if that be granted, yet this is, according to 
 my learned friencl's view, legislation within the 
 exception in the B. N. A. Act as to the office of 
 Lieutenant-Governor. I do not think it is, in that 
 sense, legislation as to the office of Lieutenant- 
 Governor. Kather is it legislation expressly giving, 
 when a new executi\e function is created, the 
 aiithoritv to the head of the Executive; or indeed 
 (if, as mv learned friend at one part of his argu- 
 ment insisted, the head of the Executive would 
 have that authority by implication without express 
 legislative grant) then controlling, or limiting, or 
 subordinating to certain parliarnentary checks, the 
 exercise of the authority. Therefore, I see no 
 difficulty at all in the grant to the Lieutenant- 
 
M 
 
 Governor of any powers which are congruous, as 
 the Chancellor phrases it, which are jjerm.'ine to 
 his office, which are (it to be exercised by the head 
 of the Executive, and with which it is wi:hin the 
 legislative jurisdiction of the Province to deal ; 
 notwithstanding the clause that we shall not alter 
 or amend the Constitution as to the ofiice of the 
 Lieutenaut-{i(jvernor. It is not ready an amend- 
 ment of the Constitution, a change of his office or 
 position, an alteration of his tenure. An attempt 
 to alter his tenure would be an attempt to affect 
 his office within the meaning of the Constitutional 
 Act. An attempt to abolish his office would, of 
 course, fall within that Act. But, leaving his office 
 untouched, either to augment his power and 
 enlarge its sphere, by giving to him the perfor- 
 mance of appropriate executive acis ; or (if by 
 implication such performance would vest in him as 
 the head of the Executive) then to regulate the 
 discharge by him of a function which the Legisture 
 certainly can itself accomplish by legislation 
 directed, pro line rice, to each case ; either course I 
 submit is unobjectionable. 
 
 For example, suppose a Pro\incial law provided 
 that the Lieutenant-Ciovernor, which woulil mean 
 of course the Lieutenant-Governor by the advice 
 of his Ministers, could sell Provincial timber limits, 
 up to 8100,000 in value, but limited to that amount 
 his power so to deal with timber limits; there 
 could be no doubt that such legislation would be 
 good. There could be no doubt that, after having 
 ,given the power, the Legislature could remove it, 
 increase it, or reduce it. They might say, " We 
 think the Legislature ought to be consulted before 
 timber limits in excess of $10,000 are sold, 
 and we so limit the power," or " We think 
 it is convenient that the Lieutenant-Governor 
 should have an unlimited power of selling timber 
 limits ; and we vest in him that power." Of 
 course that power would be vested in him, act- 
 ing by the advice of his responsible Ministers ; but, 
 it can be given, increased, reduced, or removed, 
 just at the will of the Legislature; and none of 
 these are constitutional changes affecting the office 
 of the Lieutenant-(iovernor. 
 
 I ask your Lordships to apply those two words 
 "constitution" and "office," in the sentence. 
 " Amendment of ibeCuiisti/utiui " : " with reference 
 to the Office o( the Lieutenan' -(Governor," as each 
 throwing light upon the other, and as showing that 
 it is the Constitution of the Province, which is being 
 dealt with by the clause ; and that it is the Lieu- 
 tenant-Governor's office, as partofthatconstitution, 
 which is lieing dealt with by the exception. There 
 is then a distinction between the office in this sense, 
 and those strictly local powers, the creation of the 
 Legislature, which may be given, taken away, in- 
 creased, reduced or regulated by that Legislatuie. 
 
 Then, I refer to the judgment below as satisfac- 
 torily demonstrating that the express power which 
 is given by the section to abolish and alter does 
 include the power to add. In fact if one thinks of 
 " alteration " in the various, the almost innumer- 
 able senses in which that word is used, of the trans- 
 actions to express which it is employed, it would 
 appear that it is either by addition or subtraction 
 that, in perhaps the majority of cases, " alteration " 
 is effected. I submit that anything which does 
 not create a complete change (although it may in- 
 volve the subtraction of some power, although it 
 may involve the addition of some power, not being 
 within the first sub-head of 92) is included within 
 
 the power to abolish and alter. And on that head 
 I refer to the cognate section, section 129, and to the 
 decisicjn of the Privy Council in Dohic v The Tern- 
 paralities liotird, . Cart .564 ; which points out 
 that the enactmen then under debate is qualified 
 by the provision that all laws in force in Canada at 
 the time of the Union, continuing in Ontario and 
 Ouebec, with the exception of those enacted by the 
 Parliament of Great Hritain, or of the United 
 Kingdom of (}reat Uritain and Ireland, should be 
 subject 
 
 to l)e repealed, .iljolislied or altered by the Parliament of 
 Canada or l)y tlie I^esislature of the respective Provinees 
 according to the authority of tlie I'arlianient or that Legis- 
 lature under this Act. 
 
 Now, what does the Judicial Committee say ? 
 
 The powers conferred by tliis section, upon the Frovin- 
 cia! I.egishitures ot (Mit.uio and (Juebec, to rejjeal and 
 alter tlie statutes of tlie old farlianient of the Province ot 
 Canada are niade-preclsely coextensive with the powers 
 of direct leRislatioii with which tliese bodies are invested 
 by the other clauses ot the Act ot iSb?. In order, there- 
 fore, to ascertain how far the Provincial I.egislature of 
 (Juebec had power to alter and amend the Act of iSsti in- 
 corporating the l5oard for the nianagenient of the Tem- 
 poralities fiiiul, it becomes necessary to revert to sections 
 c)i and 42 of the liritish North America .Act, which enumer- 
 ate ami dehiie the various matters which are within tlie 
 exclusive legislative authority ot the Parliament of Cana- 
 da, as well as tliose in relation to which the Legislatures 
 of tlie respective Provinces have the exclusive right of 
 making laws. It it could be established that, in the absence 
 of all iirevioiis legislation on the subject, the Legislature 
 of Quebec wouhl have been authorized by section 92 to 
 pass an Act in terms identical with 22 Vic. ch. 20, then it 
 would follow that the .Art of the 22nd Vic, has been validly 
 amended by the jSth \'ic. ch. 04. 
 
 'ITiere is a definition of the meaning of the 
 words "repeal, abolish, or alter," u eel in the 
 sam:- statute, as applied to the legislative authority 
 conferred with reference to .Vets of Parliament ; 
 and certainly it gives the widest possible interpre- 
 tation to those terms; it certainly includes the 
 power of addition and subtraction ; and the same 
 interpretation must be given to the same words 
 here. 
 
 Now, my learned friend, Mr. Robinson, suggest- 
 ed that it was hardly necessary to elaborate liere 
 the view which I had ventured 10 press upon the 
 Court below, my general view upon the theory and 
 scheme of the H. N. .\. ,-\ct ; because my learned 
 friend was prepared to concede what he admitted 
 had been established by a chain of decisions as to 
 the general character ot the Provincial Constitu- 
 tion ; he acknowledged that the Provinces were 
 much higher and much greater bodies than had 
 been laid down according to some earlier dicta, 
 some earlier views, some notions adhered to in 
 certain high quarters up to a comparatively late 
 date ; i.nd he suggested that therefore it was need- 
 less longer to pursue that subject. 
 
 I feel, however, my Lords that although my 
 learned friend's stateinent relieves me from the 
 necessity of enlarging so much as I otherwise 
 might have done upon that phase of the question, 
 yet it is absolutely impossible to treat, as it should 
 be treated, the important issue before the Court 
 without some reference to the general theory of 
 the Act. For I may say shortly, that while the 
 attack in earlier days was made upon tlis Legis- 
 lative authority of the Province, upon the charac- 
 ter, the nature, the degree, the (juality of the 
 Legislative authority, as much, or more perhaps, 
 than upon the question whether particular matters 
 were comprised within particularly enumerated 
 
IS 
 
 provisions; yet I find it impossible to dissociate 
 from the consideration of the natnre, extent and 
 qnality of the executive powers and the executive 
 Government of the IVovince, all directly in (jues- 
 tion here, the consideration of its Legislative 
 authority. And this on two grounds :~lMrst, 
 because in reason, as under the language of the 
 Act, I believj tl e Executive and the Legislative 
 authority to bj co-extensive, commensurate, and 
 complementary the one with the other; to be of 
 the same kinil and nature, character and degree, 
 as we would expect to find them one in relation to 
 the other; and Secondly, because the authorities 
 which from time to time have elucidated the 
 positicjn of the Provincial Legislative power contain 
 expressions valuable here; and are themselves, in 
 reason and in argument, inextricably interlaced 
 with the (luestion of the executive authority. 
 Therefore, when we are now called upon to deal in 
 the most plain and direct manner with theiuiestion 
 of the nature of the executive authority in this 
 Province; when ideas of high prerogative are init 
 forward; when notions of the incommur icable 
 character of the prerogative are suggested: when 
 it is argued that prerogative powers are not to be 
 taken as communicated to a Province nrder the 
 B. N. A, Act because of the method prescribed for 
 the appointment of the Lieutenant-Governor, and 
 because of the language which is used about him 
 in the statute ; then it becomes necessary to 
 examine the whole scheme of the Act as to the 
 Provinces; so as to reach, if we may, a conclusion 
 which shall leave the Provinces not lame, not 
 deformed, not reft of any part of those powers, 
 that dignity, that positi(jn, which aie as essential 
 to full and sufticient authority in the Executive as 
 they are to like authority in the Legislative 
 department. 
 
 First of all, I would observe that, in dealing with 
 the nature of the Provincial constitutions, as de- 
 duced from the Act of Parliament and expounded 
 by the decisions, we must remember, as a funda- 
 mental proposition, that the constitutional rights of 
 the people of this country, and the legislative and 
 executive powers already conceded to them and 
 existing in the Provinces, were divided, some being 
 assigned to the Dominion, and others left to the 
 Provinces ; that if the B. N. A. Act effected any- 
 thing in this relation, it was not to abstract, either 
 by omission or otherwise, any of those powers of 
 self-government which existed within the territorial 
 limits to which the Act applies ; but it was rather 
 to increase than to diminish the sum total of those 
 powers of self-government ; and that, whether they 
 were increased or left standing, what was done was 
 to divide them, to divide the suin total, not in any 
 wise ."'Tiinished, between the central and the local 
 organizations. 
 
 That being so, the division might have assumed 
 any form. The division might have assumed a 
 form which would have left the Provinces only 
 " major municipalities," a term which my learned 
 friend now repudiates, but which was not uncom- 
 monly applied to them in some quarters for some 
 time after Confederation— a form which would 
 have left them to a great extent subordinated. But 
 the division did not in truth take that form. The 
 scheme of division was one which gave central, and 
 also local legislative and executive powers ; each 
 of the same quality and nature, though touching 
 different subject matters. The nature of the legis- 
 lative power as distributed has been, as I have said, 
 the subject of repeated controversy ; the nature of 
 
 the executive power has been so far but slightly 
 touched on ; but it has now become the sid)ject of 
 serious dispute. It was (juestioned no doubt by 
 the language of some of the Judges in Liiiair v. 
 Ritchie, and by that of one of the Judges in Merur 
 V. The Atturui-y-Cienernl . it has been touched on 
 some (Hhur occasions ; but it has formed, compara- 
 tively speaking, to a very sUght extent the subject 
 of direct issue, forensic debate, or judicial decision. 
 Still, I say, that by the decisions, dealing though 
 they do primarily with the legislative power, most 
 precious light i.-; thrown upon the nature and 
 (juality of the executive power, I^ach part of the 
 whole body of the ('(jr.stilution does retlect light 
 upon the other ; the e:.c( litive powers bear a close 
 relation to, nay, as I contend, their extent may satis- 
 factorily be deduced from the legislative powers. 
 Thus, the decisions reached on the one are closely 
 relevant to ihe (piestions raised on the other. 
 
 Then, I t.ike ntUe of my learned friend's con- 
 cessions, that the Proviiices are not municipalities, 
 that they are not corporations, that they more 
 nearly approach the position, as he said, of inde- 
 pendent States ; that they are at any rate govern- 
 ments, political entities, possessing powers practi- 
 cally, within their range, independent ; that they 
 are political organizations formed with cc-iistitu- 
 tions, with executive functions, with legislative 
 functions, like, though not the same as, the old Pro- 
 vinces; that they are in fact still, though sub modu, 
 and with alterations, the old Provinces. 
 
 Now, if your Lordships would refer to the 
 preamble of the B. N. A. Act cited by Mr. Lefroy, 
 it reads in part thus: 
 
 \Vlicre:»s flic Provinces of Canada. Nova Scotia, and New 
 lirunswick, have expressed their desire to he federally 
 united in one Dominion under the Crown of the I'nited 
 Kintjdoni of Great liritain and Ireland, with a Constitutron 
 similar in principle to that of the United KiuKdoni. 
 
 .\nd whereas on the establishment of the Union by 
 authority of Parliament it is expedient, not only that 
 the (Constitution of tlie Legislative authority of the Uoin- 
 inion he provided for. hut also that the nature of the Kx- 
 ecutive Government therein be declared. 
 
 You find that it is the accomplishment of a par- 
 ticular description of L'nicm which is attempted by 
 the Act, viz. a Federal Union under the Crown, with 
 a Constitution similar in principle to that of the 
 United Kingdom; you find that on the establish- 
 ment of this Federal Union, it is declared expedi- 
 ent, not only that the Constitution of the Legislative 
 authority of the Dominion be provided for, but 
 also that the nature ot the Executive Government 
 therein be declared. I hold, with my learned 
 friend, that it was intended to -iiclude by the 
 words, " the r)ominion " the different political 
 parts of the Dominion ; the Dominion itself, and 
 also the several Provinces ; both as to the con- 
 stitution of the legislative authority and as to the 
 nature of the executive government. That is what 
 is accomplished by the enacting part ; and that is 
 what is recited in the preamble, in effect, although 
 in brief terms 
 
 Now, the third clause unites the Provinces of 
 Canada, Nova Scotia and New Brunswick into one 
 Dominion. 
 
 The fifth clause divides them into four Provinces. 
 You find, therefore, the <vord " Provinces " used in 
 the same sense in this Act as to the old and as to 
 the new. That is an indication of what the word 
 " Province " means as to the new. The three Pro- 
 vinces of Canada, Nova Scotia, and New Bruns- 
 wick form one Dominion, and Canada is divided 
 
i6 
 
 into four I'rovinciS, using the same word ; it is 
 used in h'; same sense; and therefore it is tlie 
 same sort of body wiiich is bein;,' treated, and the 
 constitution of wtiich is beint; aiijusted in the suli- 
 se<iuent parts of the Act. 'I'iie sixth clause divides 
 the parts of the old I'rovince of Canada into tut) 
 separate Provinces, and I may refer, as I did be- 
 low, to sa\e time, to a portion of my arKunient in 
 iSV. Catlinriuis v. The Qiifiii, which has been 
 printed, for the proof that the effect of these 
 clauses was to continue the old I'rovinces, not to 
 create new ones ; that in truth the language which 
 is used had regard to the necessities of the drafts- 
 man, occasioned by the fact that it w.'is intended to 
 divide Upper and Lower Canada, and to make the 
 Union out of four I'rovinces, while there were Init 
 three before ; but, for all that, they were the old 
 Provinces c(mtinued. And light, leading to that 
 view, is thrown upon the Act, both by certain 
 omissions with reference to N'o\'a Scotia and New 
 Brunswick — as to which it was not necessary to 
 enact sf)me pro\isif)ns, because their bound:, were 
 not altered, and they were in every feature the old 
 Provinces — and also by the amplifications made as 
 to Ontario and (juebec, due to the fact that they 
 were, so to speak resuscitated ; they were old 
 Upper and Lower Canada revived ; and the imme- 
 diately precedim. Province of Canada thus ceased 
 to exist in that precise form. 
 
 Now, the continuance of the old I'rovinces, 
 which is, I think, demonstrated by several passages 
 quoted in the argument to which I refer, and which 
 was practically affirmed in some phrases used in 
 the judgment of the Privy Council— the continued 
 existence of the old Provinces colors; other clauses 
 also. Vou will find a passage in a judgment of 
 Gwynne J., where he speaks of an executive 
 authority to summon the Legislatures of the 
 Provinces of Ontario and (Juebec being given, but 
 being omitted, as he supposes by accident, in the 
 cases of Nova Scotia and New Brunswick. But I 
 submit the contrary view ; I submit that it was 
 not omitted by accident ; it was omitted as 
 unnecessary. In Nova Scotia and New Brunswick 
 the Lieutenant-Governor had the authority just be- 
 cause they were identically the old Provincen. It 
 was not necessarv to give the executive power in 
 thosecases. Itexisted; and continued; and therefore 
 it was not given. It was necessary to gi\e tliat 
 executive power in the cases of Ontario and 
 Quebec, just because of the division; and, there- 
 fore, in order to set the machinery in motion, the 
 Lieutenant-( Governors were authorized to do this 
 thing ; and I repeat that the proposition which 1 
 advance of the continuance of the old Provinces is 
 supported by this and others of the subseqi.ent 
 clauses. 
 
 Hacarty, C. J. — You do not admit the tabula 
 rasa argument ? 
 
 Co!jNsi;i. — No my LonL You will find in this 
 Act, applied t(.) the Provinces, the words " continu- 
 ed " and " reserved." Certain revenues are re- 
 served to the Provinces , certain powers are con- 
 tinued to them ; and it is on the whole perfectly 
 plain that if it had not been for the circumstance 
 that Ontario and Quebec had to be divided, that 
 old Canada had to be carved into two, *he words 
 on which the argument of tabula rasa rest would 
 have been entirely unnecessary ; and it is to this 
 limited end that those words must be applied. 
 
 Now, much light is thrown upon ihe nature and 
 character of the Provincial legislative and executive 
 
 authorit,' by a comparison of the language which 
 is used in the B. N. .A. .\ct with regard to the Pro- 
 vinces and with regard to the I)ominif)n. As f(jr 
 example, take the thiril cli\ision of the Aci, that 
 preceding the ninth siclion. Take the heading 
 " 'I'he executive power." There is the heading 
 " executive power " ; and the section gives a defini- 
 tion of the executive power in the cise of Canada, 
 " the executive (iovernment and authority of and 
 over Canada." Of course it is judicially decided 
 that the heading is to be lookefl at as really a part 
 of the Act itself. I'inding then hiTi; the phrase 
 " executive power," 1 shall ask your Lordships to 
 say what is the character and f|ualily of this ex- 
 ecutive power; and to look with me, \>'nen I come 
 later on to the provinces, and find >vn,it is the de- 
 scription of their authority. If I fintl " execiuive 
 power " there too, I shall ask your Lordships to 
 conclude that the things are of the same quality ; 
 they may noi be of the same extent, but they are of 
 the same (pialitv. 
 
 Now then, this clause is: — 
 
 Tlieexncutivc Government and authority of and over 
 Canada is hereby declared to continue and lie vested in 
 the Queen. 
 
 I think that the same obstTvation which my 
 learned friends ha\e made with ref(>rence to the 
 us(! of the word Canatla in the preamble \ery 
 probably may apply to the use of the word Canada 
 here, namely, that this is a general statement with 
 reference to the executive Oovernment and 
 authority, wide enough to apply to the Provinces 
 as well as to the Dominion in its federal element. 
 The executive Cr nernment and authority of and 
 over Canada continues and is vested in tht; Queen; 
 to be exercised as regards the federal element, the 
 Dominion, through the Go\ernor-Ciener;il, as 
 appears in subsequent clauses; and to be exercised 
 as regards the Provinces in the methods which are 
 prescribed with reference to the Provinces. That 
 construction is conf (rmable to the general principle 
 of Monarchical Constitutions, and of the British 
 Constitution as one example of that class of Con- 
 stitutions ; a principle which makes, as I under- 
 stand, of the Regal power a unit, exercised in 
 the name of the Sovereign, not always by that 
 personage immedia'ely, but in a great many 
 instances through delegates, through appointees, 
 thrfiugh officers, who themselves may have the 
 power of appointing deputies, which deputies even 
 exercise, within the limits of the authority conf(;rred 
 upon them, portions of the Kegal power. ,\nd, 
 therefore, I apprehend that this clause may fairly 
 be read in the wav I state, and may thus give us 
 to understand that it was intended that the 
 authority and power of the Queen — the e\ecuti\e 
 authority and ]"iower of the Queen, constitutionally 
 granted — should remain and be exercised o\er the 
 whole countrv in its different parts and divisions, 
 territorial and political. 
 
 Now, we turn to the twelfth clause. That clause 
 is also an indication that the executive power is 
 of the same character throughout. We find by 
 it that :— 
 
'7 
 
 or witli ai'v nuiiibiT o! iiieml)i'r> tlicnof. or liy those 
 (lovcriior^ ur l.ii'iilunantCiuvei nois iiuliviiliiallv, ^liall. .is 
 tar as tin- same cmitijiue in existem c and i apalile nt beitiK 
 fxcrrisi-d .illi-r the I'tiioii in iilaiion tu the (Waei iinie.it 
 (It I'.in.iila, l)e vesleil in and cxcn i-ahh: hy the tiovernor- 
 (ieneial. with the .idvKe and so un, subject to he abolish- 
 ed or altereil. 
 
 So that, lia\in>' (Icclared tliat tin; ttxe'Clitive power 
 ami aiitlicirity cniuiiiiie ami aie \cste(i in thi:; niiccn, 
 lia\inK i)ii)\ i(li;(i lor ri (io\urnor-( IciuTai, lia\iiij; 
 provided for a (,UiL'eirs I'rivy Council f<ir Canada, 
 wlnii you look tor tlieoxuciitix e po\vt;rs, authorities 
 a'ld ttiiictioiis which are to l)e transferred, you timl 
 that all that share or portion cjI the whole mass of 
 executive poueis, authorities and functions in exist- 
 ence under the aiitlxjrity ot the hiw, which remains 
 capable of lieinj,' exercised after the I'nion in rela- 
 tion to the (lovernnient of Canada, is vested in the 
 (iovernor-Cieneral. That shows that there is ;i 
 division of the executive authority. The whole 
 mass of the statutory executive authority is referred 
 to, and it is divided. Thit portion of it which is 
 capable of hein;,' exercised with relation to the (Jov- 
 ernment of the Dominion is set ti) one side atid is 
 placed in the hands of the (iovernor-deneral ; and 
 1 need hardly say to your Lordships that later on 
 that portion which is capable of bein.i^ exercised 
 with relation to the governments of the Provinces 
 is vested in the Lieutenant-CK)vernors (jf the Pro- 
 vinces. So that the whole mass of executive 
 authority is di\ ided into two parts ; one part goes 
 to one, and the other part to the other; ami the 
 executive power and authority which goes to that 
 other is of the same (|uality, of the saine nature, of 
 the same origin, of the same or even higher an- 
 ti<iuity, because it is jiractically continued. ;is I shall 
 show to your Lorilships when 1 come to the clause. 
 The Provincial executive authority has not thervj- 
 fore any subordinate, or inferior nature or (piality ; 
 but of just the same nature as that possessed l)y 
 the Oueen's direct representative, acting in Her 
 name lor Can.ifla. is the executive authority poss- 
 essed by the Lieiittnant-(jo-.ernor of the Province, 
 
 Then, the fourteenth clause, my learned friend 
 has rightly said, authorize^s the Queen to empower 
 the Governor-Cieneral from time to time to make 
 any person his deputy to exercise any of the pow- 
 ers, authorities and fimctions which he deems 
 necessary to assign to such deputy, subject to any 
 limitations or directions expressed or given by the 
 yueen ; but the appointment of such deputy or 
 deputies is not to altect the exercise by the (}over- 
 nor-Geiieral himself of any power, atithority or 
 function. So that the Act C(jnteniplates what at 
 one stage of this argument my learned friends 
 thought to be an almost inconceivable view, namely 
 that there may he two persons with power to exer- 
 cise the one function. This clause expressly pro- 
 vides that the Governor-(ieneral may appoint a 
 deputy ; and may at the same time reserve the 
 power of himself exercising the deputed functions. 
 
 Then, we come to the ne.xt division " Legislative 
 Power " ; and that legislative power is thus given 
 for Canada : — 
 
 There shall be one Parliament for Canada, consisting of 
 the Queen, an Upper House, styled the Senate, and the 
 House ot Commons. 
 
 You see the phrase adopted when it was intended 
 to give the power of legislation ; that part of the 
 Constittition is described as " Legislative Power." 
 I shall ask your Lordships to look at the Provincial 
 Constitutions, and see whether a different or the 
 same phrase is used. If the same phrase is used, I 
 
 maintain it is an indication of the existence in the 
 sul)sei|iient case of the sairie <pi;dity of legiskitive 
 power, to be exercised in the same way, and with 
 the same degree of Latitude as to methods and 
 means and facilities for carrying out such h^gislative 
 powers as in the prior case, sidiject ot course, to any 
 expressed rt'strictions 
 
 Then the fifth division of the .\ct is headed 
 " Provincial Constitutions ' So that we find here 
 " (Constitutions," the same phr.ise which is used in 
 the ]ireand)le \\ith relereiue t<j the constitution 
 of the I'nited Kingdom, .and to the Constitution of 
 the legisl.itive .luthority of the I )oniinion of Can.ula. 
 It is not, therefori?, the incoi poratioii of .i company, 
 or the charter of a municipality , or any h;sser or 
 other thing, so far as tins title shows, th.'in the Con- 
 stitution of a State. Y'oii have got the Constitution 
 of the Cnited Kingdom ; you h.ive got the Consti- 
 tution of Canada ; and you have got Provincial 
 Constitutions ; and this litter it is which is elabor- 
 ated in the subsecpient parts of this division. The 
 name endir.ices thercd'ore the ideas of Sovereignty 
 and of political org.-uiiz.ition. 
 
 The first sub-head is " I'Lxecutive Power," the 
 same phrase which was used for Canada, and 
 therefore haviiig the same meaning ; and then the 
 5.Sth section provides : — 
 
 h'or each Province tliere shall lie an oflicer styled the 
 I.ieidenant-Governor appointetl by the (lovernor-Cicneral 
 in CuiMicil by Instrument under the Clreat Seal of Canada. 
 
 Then, what, to judge by his name, is a Lieti- 
 tenant-Ciovernor ? He is" the holder of the pl.ice " 
 of or for the person in whose name and in whose 
 stead he holds it. Me exercises the authority, to 
 the extent to v>.hich his Commission or statutory 
 powers give it, of his chief. The f.ict that thi.^ 
 officer is a " Lieutenant," is, to my mind, extieniely 
 impiirtant as coinlj.iting the position, which you 
 find statcfl so strongly in Leuuii- r. Rilchir by certain 
 of the .(udges, that there is no d(;scent or transmis- 
 sion (jf the Koyal prerog.'itive. The (iovernor-f len- 
 eral is admittedly, on the face of the Act, the Queen's 
 representative ; he is to go, n Canada in the name 
 of the Queen ; and the (.iovernors of the Provinces 
 are his Lieutenants ; the Lieutenants of the officer 
 who is acting in the naine of the Queen. There- 
 fore I see nothing in the .\ct inconsistent with, and 
 much to f.ivor the view that all that portion of the 
 Kegal power, prerogative power, executive power, 
 which is essential to carry out the objects of the 
 Act, in order to make effectual and complete the 
 exercise of those powers of self-government 
 which were being given to the Province, may 
 be held to be appropriately transmitted to the 
 Prov incial authority bv a clause which makes the 
 head of the Kxecutiv t; in the Province th(^ Lieuten- 
 ant of the Gf)vernor-C,eneral who himself rules in 
 the name and as the representative of the Queen. 
 Besides, that xvas the oUi phrase for the P.xecutive 
 heads of two of the Provinces, "The Lieutenant- 
 Governor of New Brunswick," " The Lieutenant- 
 Governor of Nova Scotia," as they were styled just 
 before Confederation ; and for the others in earlier 
 years. These were, in their day, the heads o the 
 Kxecutive ; they were, it is true, appointed by the 
 Queen directly ; but still the phrase was " Lieuten- 
 ant-Governor." 
 
 Now, there is no doubt whatever, that even 
 though the Queen may be unable of her own motion 
 without the action of Parliament to accomplish it, 
 yet Parliament can directly distribute, and can also 
 vest in the Queer the power of distributing her 
 
i8 
 
 prerogative, of placing it in whom shi; pleases. 
 Tiien whiMi you liiul r.iiliameiit providing that th<^ 
 (>ovi!rnor-(niu;ral who is to niit; in hi^r name may 
 appoint Liuutcnant-Ciovcrnors, then; si'cnis to be a 
 clear indication of an intention that tluire shoiikl 
 be, to tlie t!xtent necessary to carry nut convenitMitly 
 all tht objects of the Act, a delegation of the Kegal 
 power. 
 
 The method of appointinj;, also is important. 
 It is " by instruini'iu under the dreat Seal of Can- 
 ada." The (lrt:at Seal is the recognized instrument 
 of Royal authority. It is the most solemn way in 
 which the Sovereign speaks her will. .\ (ireat 
 Seal is said to be the mark of a Sovereign state. 
 Now not merely ha\e the Provinces their own 
 (Ireat Seals ; a fact upon which observation.; are 
 to be made cognate to those which I am now mak- 
 ing ; but this clause itself provide-s that the I.ieu- 
 tenant-Oovernor shall be appointed by the ('.o\er- 
 nor-General in t'ouncil by instrument under the 
 Great Seal of Canada. Ag.iin you have in the 
 book before you the instrument of appointment, 
 which shows that the Governor-General acts in 
 this regard, as he ought to act, and could ahme 
 rightly art, in the name of the Queen ; ;md that it 
 is therefore, the (,hieen herself through this instru- 
 mentality, authorized by the Act of I'arliament, 
 who appoints the Lieutenant-Governor of (Ontario. 
 The Commission runs in those express words. It 
 is Victoria, Queen, who appoints the Lieutenant- 
 Governor, and appoinis him under the Great 
 Seal. IJeing a Queen's oflicer in name, as his 
 patent shows, he is a Queen's officer also in nature 
 for the reasons that I have mentiunccl 
 
 Hai;.\ktv, C. J. — Is that the way it reads ? Ap- 
 pointment under the Great Seal in the name of the 
 Queen ? 
 
 Counsel— Yes, my Lord. Your Lordships have 
 it so before you in the Commission. 
 
 Hagartv, C. J.— Is that prescribed, or merely 
 adopted ? 
 
 Counsel — It is, I apprehend, prescribed by the 
 Act, and to that I attach some importance. 
 
 The Executive Government of Canada is carried 
 on in the name of the Queen ; and this act is done 
 by the Governor-Cleneral under the Great Seal ; 
 and under the authority of this Act it is done in 
 the name of the Queen. 
 
 riie Executive Government and authority of and over 
 Canada is hereby declared to continue and be vested in 
 the Queen. 
 
 There shall be a Council to aid and advise in the Gov- 
 ernment of Canada to be styled tlie (jueen's Privy Council 
 'or Canada. 
 
 Not the Governor-General's Council ; they are 
 the Queen's Privy Council for Canada ; and it is 
 the " Governor-General in Council " it is there- 
 fore, the Governor-General of Caiada, as the 
 Queen's representative, acting for her and in her 
 name, on the advice of the Queen's I'rivy Council 
 of Canada, and under the Great Seal of Canada, 
 who, by the Statute, is to appoint this oflicer, who 
 thus becomes the Lieutenant of the representative 
 of the Queen ; and so may be fairly said to be an 
 appropriate holder of such prerogative power as, in 
 order to make the Constitution efficient, should be 
 exercised by the Executive Head of the Province. 
 
 Then the Oist section makes him take and sub- 
 scribe oaths of allegiance, and oaths similar to 
 those taken by the Governor-General. 
 
 The 62nd section shows that he is " carrying on 
 the government of the Province." 
 
 The provisions of this Act referrinc to the Lieutenant- 
 fJoveiiior extend and aliply to the r.ieutcn.iiit('.c)Vi:riU)r 
 lor the tin\e beinn nt imlIi Province or (Jther tin- chief 
 ex( cutive i^tti. er or administrator for the the time beuij' 
 iiiiryiiiir ,,,i ///,• t;,<i,riiin'iit 0/ the I'rovince, by whatever 
 title he is ilesign.iled 
 
 So tnat it is cpiite cleav that tin; Lieutenant- 
 Governor is ;i person "carrying on the government 
 ef the Provinci; " .\nd, what is "government" in 
 a monarchy ''. I)o<,-s not the word necessarily 
 iinolve the delegation of som<! portion of the 
 Regal power to the officer " carrying on the govern- 
 ment," and being the chief exccuti\e officer or 
 Lieutenant-Governor of the Province.^ I conclude 
 then that the Lieutenant-Governor, who is a 
 Queen's ofhcer. appointed by the Queen through 
 the Governor-General, in the Queen's name, under 
 the Great Seal, who is styled the " Lieutenant- 
 (iovernor," and the "chief executive officer of the 
 Province" who is "carrying on the government of 
 the Provi.ice " is, in his measure, a representative 
 and delegate of Royal authority. 
 
 Then sections ()^ ,ind 64 are sections which show 
 very pointedly the strength of the arguinent in 
 favor of tile continuance of t!ie okl Provinces and 
 of the high nature of the government. Section 63 
 speaks of the " Executive Council of Ontario and 
 Quebec." After providing a Lieutenant-Governor, 
 you find an l':.\eciitive ("ouncil : and you find that 
 those of Ontario and Quebec are to composed of 
 the following persons : — 
 
 The Attorncy-GeMcral. the Secretary, and Kcgistrar of 
 the Province, the I'reasiirer of the Province, tlie Com- 
 missioner of Crown Lands, and the Commissioner of 
 Acri' ullureand Public Worlis within (Jiiebec. the Siieaker 
 of the Legislative Council, and tlie Soficitor-General. 
 
 You find, therefore, as was necessary, a definition 
 of those who, in the first instance, should compose 
 the Executive Coiincils of the two Provinces carved 
 out of the old Province of Canada, and whose 
 machinery had to be set in motion. You find 
 officers mentioned, whose offices contain in them- 
 selves indications of this being in its ext cutive as 
 well as in its legislative character, n governineut. 
 You find an Attorney-Gei.eral, an officer well 
 known under the luiglish C2onstitution. The 
 Attorney-General is the person serving and acting 
 for the Crown in the capacity of legal adviser. 
 You find a Commissioner of Crown Lands. The 
 pulilic lands are spoken of as Crown lands ; and 
 you find amongst the fir.it Executive Council there 
 is to be a person who is to be Commissioner of 
 Crown Lands ; thus indicating; that the Crown 
 Lands were to be dealt with by the Lieutenant- 
 Governor under the advice of his Executive 
 Council. 
 
 Then what do you find in clause 64 ? For the 
 other two Provinces, Nova Scotia and New Bruns- 
 wick, in respect of which the necessity to which I 
 have adverted did not arise, the Act says ; — 
 
 The Constitution of the executive autliorityin each of 
 the Provinces of Nova Scotia and New Brunswick, shall, 
 subject to the provisions of tliis ."Vet, continue as tt exists 
 at the Union until altered under tlie authority of this Act. 
 
 They were the old Provinces ; and the C'onstitu- 
 tion ot their executive authority coniinued. It is 
 not said that Nova Scotia and New Brunswick 
 under this Act shall have the same powers and 
 authorities as the old Provinces of that name had ; 
 which would in one sense be tpiite enough for me ; 
 but it is said that the constitution of the executive 
 authority of those existing Provinces is to " con- 
 
»9 
 
 tinue as it exists at iht; l.'nion;" it is kept alive 
 the whole time There was no necessity to define 
 nioie particularly ; the executive authority con- 
 tinued as it was. So that my learned friend lias 
 t(j show to your l^ordshii^s sonK-tliinn else in the 
 Act wiiich lias taken away that share of Regal 
 power, tli.it delej^ation of l<t'j,'al power applicable 
 to local alfairs which under the Act still remains 
 and continues in the constitution of the executive 
 authority of Nova Scotia and New Urnnswick, 
 before he can establish that that authority is 
 shorn of any part of that power. And all that 
 was continueel to Nova Scotia and New Hrunswick 
 was vesteil in Ontario and (,Hiebec. 
 
 I ask your 1-ordsliips then to decide that it is 
 perfectly plain that all the executive power which 
 existed before the I'nion, and was required for the 
 doing of the things which after the Union remained 
 within the legislative power of Nova Scotia and 
 New Hrunswick, continued, after the Union, ot th^ 
 same nature, of the same (luality, of the same 
 character, under this Act ; was, notwithstanding 
 the passing of the Act, and even by the terms of it, 
 preserved, and maintained, in its original vigour. 
 And I ask your I.ortlsliips, determining thus, to 
 determine also that the nature of the executive 
 authority in Ontario and Quebec is the same as 
 the nature of that in Nova Scotia and New- 
 Brunswick. Not that these Provinces had pre- 
 cisely the same powers and authorities. That I 
 know not ; about that I care not. Its nature is 
 the same ; it was not of a new or diflerent nature, 
 like a delegation to a municipality; but it is of 
 that old nature, which lUKiuestionably included 
 the existence in the hands of the Executive of a 
 portion of the Kegal power. It is that old 
 executive authority in nature, in the one case ; it 
 is that old executive authority in nature, in the 
 other case. 
 
 Then I come to section 65, which is the par- 
 allel of section 12 to which I have referred, dealing 
 with the powers, authorities and functions. The 
 same words are used as to the powers, authorities 
 and functions vested in the Lieutenant-Governors, 
 as were used with reference to those vested in the 
 {.hieen's immediate representative, the Governor- 
 General. The division of power is accomplished 
 by the use of the same langnage — save of course 
 that which describes the division— the same 
 language in the one case as in the other; the 
 power is of the same quality, of the same nature, 
 in the one case as in the other; the executive 
 authority as well as the Legislative authority is of 
 the same nature ; and not merely is it of the same 
 nature as that of the old Provinces; but I ask 
 your Lordships to determine that the executive 
 authority of the Provinces is of the same na. jre as 
 the executive authority of the Dominion ; that the 
 whole body of executive authority was divided ; 
 and that the portion assigned to the Provinces 
 came from the same source, was of the same 
 nature, and was of an even higher antiquity, in 
 the case of the Provinces to which it was in sub- 
 stance continued, than it was in the ca.se of the 
 Dominion to which it was, necessarily for the first 
 time, by the .Xct ascribed. 
 
 Then clause 66 places the Lieutenant-Governor 
 exactly in the same position as that in which the 
 Governor-General is placed, under clause 10, in 
 relation to his Council. 
 
 Clause 68 speaks of the "seats of government " 
 of the Provinces, just as clause 16 speaks of the 
 
 " seats of government " of Canada, \N'e finvl the 
 "seat of the government " of the one, and the "seat 
 of the govi!inment " of the other. 
 
 So much with reference to Executive Power. 
 Then, we come to the " Legislative Power," the 
 next liea<iing ; being the same phrase, as I pointed 
 out, which is used with reference to Canatla. 
 
 We lind section (x) giving a Legislature tor the 
 two Provinces, Ontario and (Quebec, — i\Lij<tiUttnre; 
 a body entrusted with the pcjwcr ot making 
 Laws; not Hy laws or Ordinances, but Ltnfs ; 
 and in the course of the provisions as to the Legis- 
 lature there is some reference to theOuien's name. 
 Section 72, for example, provides that " The Leg- 
 islative ("ouncil of Ouebec shall be composed of 
 24 members, to be appointed by the Lieutenant- 
 Governor in the Oueen's name, by Instrument 
 under the (ireat Seal " ; thus showing that the ap- 
 pointments are to he in the Oueen's name, and 
 that the Great Seal is the evidence of that Koyal 
 act. It may be dilticult lo account for, I do not 
 myself apprehend the precise reason for, a special 
 pro.'ision in that case; but it certainly cannot be 
 understood to mean that nothing else was done in 
 the yueen's name. Sectiorv 75 provides for filling 
 the vacancies in the same way. 
 
 Section 82 provides that the Lieutenant-Govern- 
 ors of Ouebec and Ontario may from time to time 
 by instrument in the Oueen's name call together 
 the Legi ilatures. 'J'hat was a mere starting mac- 
 hinery to get them into the same position in which 
 New Brunswick and Nova Scotia were already, 
 tl.rough the continuance of their executive author- 
 ity; into the same position as the Province of 
 ("anada occupied in the old times. But those 
 Legislatures are, for all that, Oueen-summond — 
 they are to be summoned in the (,)ueen's name ; 
 and of course their prorogation and their dissolu- 
 tion must occur in the like mode. 
 
 MacLenxan, ,I. — If she came here she could do 
 it herself. 
 
 ('ouNSEi. — Po.ssibly ; unless this Act of Parlia- 
 ment might be deemed to be exclusive ; perhaps 
 she might do it, though not without advice ; 
 whether she could, and on whose advice, would 
 require consideration. But prorogation and dis- 
 solution are not mentioned, and yet nobody im- 
 agines for a moment that prorogation and dissolu- 
 tion were not to be accomplished in the same mode 
 as convocation. 
 
 Again, as evidencing that executive powers and 
 powers to act in the Queen's name are implied, I 
 may mention that the first Commission ind In- 
 structions from the Queen to the Governor-General 
 of Canada comprised a clause giving authority to 
 the Lieutenant-Governors, to prorogue and dissolve 
 the Provincial Legislatures ; but on a reconsidera- 
 tion of the whole Commission and Instructions, 
 and upon suggestion made by those then entrusted 
 with the conduct of affairs in Canada that this 
 provision was unnecessary, and that these powers 
 must be held to have been vested in the Lieutenant- 
 Governors of the Provinces by the implications of 
 the B. N. A. .\ct, the provision was struck out ot 
 the laier Commissions and Instructions. The 
 force of that suggestion commended it to the Im- 
 perial authorities ; they no longer attempt to con- 
 fer that autliority, because they feel it to be need- 
 less ; and the Lieutenant Governors, therefore, in 
 now proroguing and dissolving in the Queen's 
 name, act upon the view, which I maintain, with 
 confidence, is the sound view, that all executive 
 
30 
 
 auUioiiiies ie(iuireil to carry out tlic provisiDiis of 
 the Act are iiiiplii'dly vested in the Lieuteiiant- 
 (iovernnrs ol the I'rovinces. 
 
 Now, if the consiitiitioiis of Canada ami ol the 
 I'rovinces are ol tlie same nature-ami I think 1 
 have shown that tlie ccmslitution of Canada is nf 
 tile same nature as that ol the I'rovinces, and that 
 the consiitmion of llu; I'rovinces is of the same 
 natiirir as that of tht; old I'rovinces helore (Unled- 
 eration if these' \>v the facts, the next iin>'stion is, 
 what is tiiat common n.iturtt ' As stattul in the 
 |)reamble, it is "similar in principle to that ol the 
 United Kingdom," It is the creation of such 
 a Constiiuiion tli.it was beinj; effected. You have 
 a declaration showing the character of the Ct)nsli- 
 tutioii which the Imperial Parliament conceived it 
 was creatin,^; ; and if you hnd these Constitutions 
 to he of the same n.iture, then the one as well as 
 the otlnu' is " similar in principle to that of the 
 Huited Kingdom" My learned friend, althouKh 
 he did not repeat tin; <|Uot.ition here, f;a\e helow, 
 and \hc learned Ch.incellor in his jud^jment 
 referred to the somewhat bniscp.e observation of 
 Mr. l)icey that this plirase was an example of 
 " ofticial mendacity "; because accoriliiiK to his 
 view the Canadian Constitution (io(!s not accord 
 with the principle of that of the Ctiited Kinf{dom, 
 but is directly opposed to what he conceives to be 
 its vital element. My le.irned friends rest much 
 upon Mr. I)icey ; and, looking at it Irom a lawyer's 
 
 Eoint of view, there are many observations in his 
 ooU which are of great value, pertinent to this 
 question ; but it must not be forgotten that its main 
 purpose was to deal with what he calls "the law 
 of the constitution " Although he touches also on 
 what he calls " the conventions of the const it tit ion," 
 yet he deals mainlv with that portion of the Con- 
 stitution which is embodied in rules capablt! of 
 being enforced bv law; and many of his ]ihrases, 
 unless th.it guiding principle of action on his part 
 be regarded, would be extremely misleading. 
 
 To lawyers, jurists and judges it is not per- 
 mitted to deal with Acts of Parliament after the 
 fashion used by Mr. Dicey in the passage to 
 which I have just referred. Our business is, as J 
 understand it, rather to find reconciling interpre- 
 tations ; to find, rather, meanings tor tin; language 
 of the l-egislature which will accomplish its pur- 
 pose and avowed intent ; and curicuisly enough, if 
 I rightly remember Mr. Hicey's phrase, he omits 
 that very word which creates the distinction. He 
 says that Parliament indicated a desire on the part 
 of the Provinces to be united into one Dominion, 
 omitting the word " fcdt'ntlly .'' Thephrase is "to 
 be fi-tfenilly united into one r>ominion " under a 
 Constitution according U) the principle of the 
 British Constitution. 
 
 Well, of course if the principle of the Hriti:;li 
 Constitution is so emphatically, so entirelv, so ex- 
 clusively one Sovereign r.egislature,asdistingtiished 
 from that division of the legislafi\e powers which, 
 wdiatever the details, is an essential element of 
 every federal constitutitm. it might perhaps be an 
 example of "oflici.al mendacity" to say that a federal 
 union could be formed according to the principle of 
 the I^ritish Constitution. I')oubtless, as Mr. Dicev 
 observes, no federal union can consist with absol- 
 ute Sovereignfv in any one central Parliament ; 
 because the security of the federal element of the 
 union depends upon tlie division of the powers, 
 anil a central Legislature, which can do as it 
 pleases with the powers, can destroy, alter, and 
 
 re-make, as it pleases, the federal char.'icter of the 
 constitution. J<ut, as 1 say, lawyers and jurists 
 aiul judges must look for some other nu'aning in 
 this claust,', and some meaning which sh.all not 
 m.ike it an example of "oflicial mendacity," but 
 which shall m.iki; it true, and give to it a force, and 
 power, and interpretation which shall btu'fleciual ; 
 and this I venture to say we can find Ironi Mr, 
 Dicey's own book. No doubt the prirciple to 
 whiili he adverts as the essential element of the 
 liiitish Constitution, n.amely that there exists, not 
 merely practically, but te( hniciUy and legally, 
 one Sovereign l.i'gisl.ilure, the principle of an 
 entire and undivided P.irliamentarv Sovereignty, 
 is one of the characteristics ol the British form of 
 constitutional government ; but yet that obviously 
 is not the principle to which Parliament was in 
 this phr.ise adverting; because the Union is here 
 spoken of as a " feileral Union." We must turn to 
 anothtT, and ;>s 1 submit to the central and vital 
 lirinciple of the Pritish C!onstitutiou, to one well 
 known to us, and exemplKied in the earlier as in 
 tlu^ later history of the constitutional struggles on 
 this Continent, to tin- principle to which the 
 learned Chancellor looks, to a principle which Mr. 
 Dicey himstdf acknowledges may exist in a consti- 
 tution not b.isedonone Parliamentary so\('reignty. 
 In no less than two passages of the same learned 
 author's book you will hnd allusions to the Bel- 
 gian Constitution, in which he declares that it, a 
 written constitution, not alterable by the Parlia- 
 ment itself, and therefore not possessing this 
 element of Parliamentary sovereignty, is a very 
 close transcript of the liritish Constitution put 
 into writing. That great diflerence exists ; but iu)t- 
 withstanding that difference, it is, he agrees, a close 
 transcript of the British Constitution. 
 
 I ask your Lordships them to find that the 
 principle of the liritish Constitution here reftnred 
 to, the principle which I ifi\c)ke as giving the 
 powers for which I contend, is that of free and 
 representative and responsible Government, 
 embracing an I'.xeciitive, invested doubtless with 
 great powers, but exercising those powers always 
 upon advice; the givers of which advice are 
 responsible to a free and representative Parlia- 
 ment ; which I'arliament is responsible to the 
 electors, of whom we speak as tlie people. That 
 the laws are to be made, the taxation to be imposed, 
 the executive to be controlled by the popular 
 assembly, always the chief, is fiy degrees becoming 
 more and more absoliitelv the essential element. 
 The princif'le is respomihli- dorennm iil. That is the 
 principle. We have been familiar with it here 
 from verv early days, anterior to and during the 
 revolutionary struggle in the southern portion of this 
 Continent, as bearing on the condition of the old 
 colonists of North America. One of the greatest 
 speeches of Edmund I-iurke, delivered during the 
 crisis of that struggle, depicted the condition and 
 the reasonable desires of those colonists He 
 pointed out that up to that time t)ie main point on 
 which, in England itself, the attention of the 
 masses had been concentrated, round which the 
 battle for freedom had raged, and which had 
 npturallv enlisted the attention of the newer 
 haigland, as drawing light from the lessons of old 
 England, was the point of taxation. He pointed 
 out that England at the time he spoke was binding 
 her Colonies commerciallv in the straitest bonds; 
 but that, while used to, and through habit bearing 
 those commeroial bonds, those fetters on trade and 
 
21 
 
 manufactures, liey foiinil ilieir cotupensaliuii in 
 the allowance, in all other respects, ot the form 
 and the substance ot the Uritisii Constitution, in 
 the possession of practical heeiloni, ol pi.ntical 
 self-«overninent, of the exclusive power ol hjcal 
 taxation. lUit, he said, if you aid to your 
 monopoly in hindiiif,' their trade a claim to tax 
 them too, you make their condition slavery. 
 They are prepared, lor the compen^^aiions. to con- 
 tinue to hear the one; they wdl not endure the 
 addition ol tlu; otluT. 'I'luis, that ^reat man de- 
 scrihed the existinR powers (jf local free sell-govern- 
 ment ; and thus he pointed to the weaksp(j;,to 
 that which easiest roused their attention, ami 
 stirred tlieir jealousy, their aversion to the notion 
 that taxation shoukl he laid upon luiKlish subjects, 
 on either side of the Atlantic, by any others than 
 themselves. That, as he arKue<l, li.id been the 
 centre around wliii h the constitutional struggles of 
 KiiKland liersell had been fouf,dit ; that hail been 
 the fortress of I'.nnlish liberties, to deny it to their 
 I'.n^jlish fellow subjects ill .America would be alike 
 futile and dangerous; and he asked that tlu; cl.iim 
 should bt! renounied 'J'he claim was in the end 
 ren(jimced, althouKli too late for the immediate 
 object ; and Mr. Dicey, K'ving an example ol 
 fundamental laws (which yet, as he says, the 
 rarliament of Creat Uritain h.is, of course, the 
 technic.il power if it pleases to repeal) cites, as 
 the most coK^nt and illustrative example of !,iws 
 whicli are after all practic.diy irrepe.al.able, the law 
 declaring the renunciation of that powerof taxation. 
 
 Well, in those olil days, when the Kej,'al jjower 
 was so much more imposiuf; in form, and indeed 
 so much greater in substance, than it has in these 
 later days became — in tho.se old ilays, esen as to 
 colonies of inferior and different natures, ;is to 
 the constitution of tlieir executive authority, from 
 ours — in those old days, with resjiect even to 
 colonies, whose charters were so democratic that 
 their inhabitants had the power to elect their own 
 Ciovernors, this prerogative of pardon appertained 
 to the locality, belonged to the colony, was exer- 
 cised liy the liead of the I'L.xecutive. A (iovernor, 
 though elected under a democratic charter l>y the 
 people, was entitled to exercise the preiogative of 
 jiardon, The Deputy of the I'rojirietor of a colon\-, 
 as in the case of William ['enn's colony, now the 
 great State of Pennsylvania. exercised that preroga- 
 tive. So far was it from being incommunicable; 
 so far was it from being an (.'xclusi\e or peculiar 
 prerogative of the Crown ; so far was it from being 
 a power to be exercised only by someone specially 
 chosen by and having the sjiecial cfmfidenre f)f the 
 Monarch, that a man elected by the locality, or a 
 man nominated by the subject Proprietor of the 
 soil, the man, however chosen, who possessed the 
 executive power, was, even in tho.-se old days, com- 
 petent to exercise the prerogative of pardon. 
 
 After the Revolution, our own country, so far as 
 it was not occupied by the old subjects of France, 
 was settled very largely, in the first instance, by 
 those who had opposed the Revolution, had ad- 
 hered to the liritish Crown, and preserved, under 
 very difficult circumstances, their attachment to 
 Monarchical institutions. For a considerable time, 
 and reasonably at first, having regard to the ex- 
 tremely rudimentary character of the settlement, 
 to the enormous area of territory, and to the 
 sparseness and poverty of the population, a kincfof 
 semi-paternal government was exercised ; all the 
 more readily borne by reason of these views of the 
 
 IJnited lunpire I.oyrdists. Hut from time to time, 
 as we know, there came demaiuls for greater 
 Ireedom of action . ;ind the form of our struggle 
 heri! was tht! light f.>r wli.it was popul.irly known 
 as Responsible ( loveriimeiit It did not turn, of 
 course, upon that which had been reiKmnced, ;ind 
 renouiued lorevt^r, the (pinsiion of tax.itioii . but it 
 turned upon the other elt-meius ol Responsible 
 (ioveiiiment Matters there wen; doubtless which 
 came near to the money (piestion. What the 
 people oi the northern portion cf the continent 
 dem.'iial in these as in other matters, w;is the ap- 
 plicati<m u( the great principle tluit the executive 
 authoritv, while continuing to be exercised in the 
 name of the ('rown, should, in local alfairs, be 
 exercised upon the same principles, under the 
 s.ime responsibility, with the same rights, and 
 subject to the same securities to the people 
 governed, as witliin (Jreat Britain herself with 
 regard to the Hritish subjects inhabiting the 
 Hritish Isles. 'I'hat, shortly, was the demand ; 
 an<l what were the answers "■' Two mainly. First 
 it was said that the step would endanger the con- 
 nection of the countrv with the mother land , next 
 it was said tli.it the peop.le of the Colonies were 
 not wise enough to govern themselves. Well, the 
 answers were liisputed ; sometimes by argument 
 and agitation ; sonuuimes by insurrection ; and in 
 the end it was seen that the only way to carry tm 
 affairs was to recogni/e the principle of Responsible 
 (iovernment in rdl things which did not directly 
 concern the Imperial power, or Impcrird interests; 
 to concede in the fullest and largest degree local 
 government in local aflairs. Thus R,:i/^on.<iih!e 
 (iuvernment, which wit lu^re had during these 
 struggles consecrated as the vital principle of the 
 of the Hritish Constitution, wris introduced among 
 us. Thus that principle, which you will lind 
 expounded by Mr. Dicey when becomes to deal, 
 as in various parts of his work he do(!s deal with 
 the other part, the extra legal part, the unwritten 
 or conventiop.'d part of the Constitution, that part 
 which is not embodied in laws capable of being 
 enforced in the C'ourts, was recognized here, —the 
 principle, namely, that it is the people at large 
 who govern themselves, who are self-governing, 
 through the medium of their elected representative 
 .Assemblies, which .Asseinblies substantially choose 
 their executive councillors, which councillors 
 advine the Head of the Governnient, which Head 
 acts upon that advice. Thus a chain is formed 
 between the people and the Crown : a link is created 
 between the governing and the governed ; and the 
 whole (|uestion is so solved. It is then upon that 
 great and central principle of the Hritish Constitu- 
 tion, applied to the locality with reference to all 
 matters which concern the locality, that we arc, as 
 I maintain, to interpret this Constitution ; and that, 
 of course, not nierelv as to the Dominion of Canada, 
 but also as to the Provinces of Canada. 
 
 Now a line of demarcation, howe\er vague, must 
 bs stated ; and the only tangible line is that be- 
 tween Local and Imperial interests. .And it will be 
 found not uninteresting to remark that, in this very 
 (piestion of the power of pardtm. Imperial inierests 
 mav. to some extent, intervene ; that their possible 
 existence has been recognized ; and that they fur- 
 nish an admitted possible ground for Imperial in- 
 tervention, by the exercise of the power of pardtm 
 i.i certain instances, however rare, in which per- 
 haps the Local authorities might not be disposed 
 to exercise it. 
 
22 
 
 Turning again to the claiisi-s i)f tlio Act, tho view 
 lliiU ours IS a jjoverniiu'iit (uiindfil on that priiui- 
 pie of thu Hiiiisli Consiitiitiiin which 1 have de- 
 c;riheil, is (Milorceil oiu c more l)y liic suKneslion as 
 to the oUl I'rovinces. Sei-'ion HS continues the 
 constitution of tiu! I.enishiiure of eacii of tlie I'lo- 
 vinces of Nova Scotia and New Hriinswici< as it 
 exists at tile Union, 'I'liey are not re-inade, they 
 are not created, they are continued. 
 
 I'lause i)o a[>plies to each of tin- four Provinces 
 very important provisions, maile in the constitution 
 of Canada all of a political and constitutional 
 u.itiire— provisions as to appropriation and lax 
 hills, recommendation of money votes, assent to 
 hills, disallowance of Acts, and so on, showing 
 once again the identity in nature of the two con- 
 stitutions, th.it they are not dillerent. one lieing of 
 inferior order or character to the other, hut that 
 they are the sauK; in n;itiire ; and in truth it is hy 
 reference to the one that these most important 
 constitutional elements are imported into the 
 others. 
 
 Then, under head (> you find the distribution of 
 the legislative powers, I call your Lordships' 
 .itteiuion to that, hccaiise, as I have said, I read 
 the whole constitution together, in order to find 
 from the nature of the legislative, a clue to the 
 nature of the executive authority. Here it is pro- 
 poseil to deal with the Icj^iislative powers of Can- 
 ada and the Provinces. What plirase is used ? 
 " Distribution of legislative powers." One mass 
 of legislative powers ; the same powers ; powers of 
 the same nature; powers of the same character, 
 are dealt with together ; and of these cjiie portion is 
 assigned to the Parli.iment of Cinada, and another 
 portion to the Legislatures of the Provinces. 
 "Distribution of the legislative powers" The 
 nuss is divided. You cannot say th.-it that portion 
 of the mass which is handed over to the Provincial 
 Legislature is handed over as of any dilterent 
 essence, of any inferior kind, of any lower nature 
 than that wliich is handed over to the Canadian 
 P.irliament. " Pnvers of the Parliament " is the 
 sub-heatl for Canada; and when you come to the 
 portion of the [legislature, wiiile you find the mass 
 divided between the two. the only difference you 
 see is this, that no less than three times there is 
 jealously repeated a reference to the ^'exclusive 
 powers of the Provincial Legislatures" as dis- 
 tinguished from the powers of I'arliament ; so that 
 any distinction is in favor rather of the Legislature 
 than of the Parliament. 
 
 Then when you come to 92 : — " Exclusive powers 
 of Provincial [legislatures," you find " the amend- 
 ment of the Constitution." a power of the very 
 highest and most sovereign character. The 
 [5. N. .\. Act, therefore, may be amended by the 
 ['rovincial Legislature in this most vital point, a 
 power which the Canadian ['arliament does not 
 enjoy as to its constitution, a power which indeed 
 could not there subsist without certain safe-guards, 
 checks and limitations, else the federal form of 
 the constitution and the compact on which it was 
 based would be imperilled. The Canadian Parlia- 
 ment has at present no power of amending the 
 constitution of Canadr. ; while the Provincial 
 [legislatures have power to amend their consti- 
 tutions, except with regard to the l^ieutenant- 
 C.overnor. But for that limitation, as already 
 explained, they might break the link altogether; 
 they might forbid his communicating with the 
 Governor-General ; they might alter the tenure of 
 
 his ottice; they niight abolish it altoj^ether. To 
 avoid such possibilities was the jiiirpose of the 
 exception. |-liit inasmuch as they ha\»' power to 
 amend the Constitution, exct'pt as regards the 
 Lieutettinaiit -Governor's oflice ; and also, by the 
 ().(tli section, to which [ have rtderrcd. ha\e power 
 to abolish or alter his functions .iiid .lutliorilies ; 
 it is cle.ir tli.it in all things, with the exception of 
 a constitutional ;iiiK!n(lment allccting his office, 
 they hiue power to ch.'al (!vtMi with the Lieittenant- 
 (jovernor. 
 
 It is as I have said the Conslitutinn itself which 
 is in this respect, not amendable, "'['he amc:nd- 
 ment of the Constitution of the Province " There 
 is no limit as to the amendability or repeal of 
 Acts existent at the; date of. or which might be 
 p.assi^d thereafter under the Constitution. And, as 
 I h.ive tried to jioint out to your Lordships, the 
 unity of the executive .authority would be imper- 
 illed, and the \(;ry object which was contemplated 
 by th(; rc!servation ini]iaired by any (5ther view. I 
 submit that the Province can ;idd to the (executive 
 powers of the Lieutenant-Governor in ['rovincial 
 affairs, when necessary in order to render more 
 efficient the administration of those affairs; 
 when recpiired in order to effectuate legislative 
 provisions; and in all respects, germane to his 
 office, in which further grants of executive power 
 may be usefully gi\en to that officer. And [ point 
 out that it is impossible that by such action the 
 [)omini<)n authority or his position can beaffected; 
 on the contrary the l'ro\inc»; thus magnifies his 
 place, [t can then gi\e tlu^se powers, [f not the 
 only alternati\e is tli.it it must set up some; other 
 officer. [<iit 1 do not understand the position that 
 such additions as [ suggest can be made to l)e 
 seriously conirovertcHl. 
 
 (.Vdjourned 5 p.m. until 11 a.m. October 2nd.) 
 
 ^[u. [^i.AKK resuming — I had finished my re- 
 marks with reference to the first article of clause 
 c)2 of the .\ct. and was about to point out to your 
 [^ordships that there is in that clause a whole 
 series of what may he called Sovertngn powers in 
 the matter cjf law making; but [ wish to call your 
 [.ordships' attention to the fact that the power of 
 law making is verv wide as defined at the com- 
 mencement of clause 92. 
 
 Tlip Le^islatiiro m:iv ('X(■Ill^ivelv m ike laws in relation 
 to matters comiImc: witliiii the classes of subjects next 
 lierein itter enumerateil. 
 
 [-aws which are " /// relation to matters coming 
 within Ihf cniiiiiern ed classes of suh/ects" are laws 
 within the exclusive power of the Legislature. 
 The phrase is one the terms of which are perhaps 
 impossible of enlargement, and are certainlv much 
 opposed to the narrow construction which my 
 learned friend suggests as to the legislative power, 
 [t seems to me that a [.egislature which may make 
 laws " in relation to matters coming within the 
 classes of enumerated subjects " may make a law 
 to supply any defect, and to grant power to deal 
 with any phase of any matter involving adminis- 
 trative action, for the inore perfect operation of ex- 
 isting laws, or the more complete execution of the 
 will of the [legislature, as defined in any existing 
 law, as well as in connection with contemporaneous 
 or future legislation. 
 
 The articles to which I particularly call your 
 Lordships' attention, as indicating a sovereign law- 
 making, and as of course a complementary 
 sovereign executive power, are : — Taxation ; [^ais- 
 
23 
 
 itiR money on tlie credit of the Province; Tiie 
 (■st,il)li>.limi'tit of l'ro\ im iai odiiers , 'I'lie niaiia^c- 
 nu'iit and ^ale ot puljlic lands (wliicli are tilt- 
 (ruwn lands), Prisons. Miinici[)al inslitntions, 
 (which wt! can make and iininakf, and theMtforc 
 are not onrselvcs) , Licenses; I'nlilic works; I'he 
 iiicorpor.ition of companies, I'rcjperty anil civd 
 riKlUs ; Thf administration of justii(% with certain 
 e.\i epiion>, hnt includinj{ the imposition of pnn- 
 ishnients to the extent necessary to render eltective 
 our lenislali(jii on any snbject. If it were not that 
 the making of the criminal laws, and the appoini- 
 miMil ot the Sn]ierior and County Court Jud^'es, 
 ari! ahsiiact<;d from the Local ancl pl.-icnl within 
 the I'eileral jurisdiction, the whole aiiminstration of 
 justice woidd he l'ro\iiu'ial. 
 
 l''ven as to jiidiiatnre, while the Superior and 
 County '."ourt .lud^t's are rt^noved, the MaKistracy 
 and the (Courts of inferior jurisdiction are left. As 
 It is, as i pointed out in J'lif Quffii v. Wtiuni, thf; 
 main part of the soverei^jn l.e^;islative pijwep is 
 I'rovincial. 
 
 I defer a reference to the specialties of Pardon, 
 which might naturally arise upim this ijuestion of 
 the administration ol justice ; thinking 1 can more 
 clearly deal with it by concentrating my positions 
 in a later part of my argument. 
 
 It is clause iO() tiiat de.ils with the (!rown lands, 
 Mines and t<oyalties; and, upon that, very per- 
 tinent observations with reference to mines and 
 royalties are to be found, as I will show your 
 Lordships presently, in cases decided by the 
 highest tribunal. 
 
 1 he 1 17th clause shows that the Provinces rc/(i/« 
 their property ; another phrase, in addition to 
 those which I hive already pointed out, indicating 
 the continued existence of the old Provinces; it is 
 not a granting of the property, but a retaining of 
 the property that is effected ; and upon this I 
 would also refer, for the sake of l)revity, to my 
 printeil argument in St. CiUhtitines v. the Qiii-cit, 
 the (Jntario Lands Case, which deals with that 
 phase of the construction of the J^ N. A. .Act. 
 
 Clause i2() deals with that portion of th(^ duties 
 and revenues reserved to the Provincial Ciovern- 
 ments and Legislatures-- not granted, but rcsfrved 
 to the Governments and Legislatures; and forms 
 of them a consolidated revenue fimd for the 
 Province, just as clause 102 does for Canada ; 
 another example of the identity in nature of the 
 constitution and the constitutional powers of the 
 Dominion and of the Provinces. 
 
 Clause 120 continues all commissions, powers, 
 authorities, laws, and so forth, subject to be re- 
 pealed or altered by Parliament or the Legislature 
 according to the authority of Parliament, or of the 
 Legislature, under the Act. I^ach is thus continued 
 for each jurisdiction, subject to repeal or alteration 
 by the appropriate body, according as the division 
 of powers throws the subject matter within the 
 jurisdiction of the local or the federal authority. 
 
 Clause 134 authorizes the Lieutenant-Governors 
 of Ontario and Quebec, under the Great Seal, 
 to appoint political officers, ministers, including 
 the Attorney-General, and the Commissioner of 
 Crown Lands ; the Great Seal being, as I said, the 
 recognized instrument of the manifestation of the 
 Royal will. 
 
 Clause 135 vests in the members of the Govern- 
 ment to be appointed by the Lieutei^ant -Governor, 
 until the provisions are changed by the Legislature, 
 all authorities and functions of the old members of 
 
 the old (^lovernment ; once more shewing that it 
 was the old constitution whic h vv.is ccitiiuii'd and 
 kiipt in force; save to the extent to v^liich it was 
 nece-.sary to provide new macliiiiei y , in order, lirst, 
 to the re-divisi<.n of th»! Provinct; of Canad;i into 
 its (lid parts, Upper and Lower Canada, and 
 secoiKJly. to the establishment of the limit.itions 
 reipiired by the iidoptioii of a federal constitution. 
 
 (.Clause 13') provides that the Great Seals of 
 Ontario and Quebec shall be, until altered by the 
 Lieiiten.int-Governor, ihe s.ime as those of old 
 I'jjperand Lower Cmad.i. Thert- you find once 
 again an evidence of the restor.ition, or re-creation, 
 or revival, or resurreclion of I'pper and Lower 
 Can.id.i, S'ou lind that tlnir (ire.it Seals are pro- 
 vided, and that till! Liriiteiiant-Guvernor is indi- 
 cated as the power to alter their ( Ire.it Sirals. Put 
 you hnd nothing wh.itever about the Great Seals of 
 Nov.'iScotiaand New Hrunswick. Why ? Hecaiisein 
 their c.ises, where tin; existing entity was not being 
 changed, there was no need so to pros ide The con- 
 stitutions in both the executive and legislative 
 branches of Nova Scotia and New Hrunswick 
 were contiiui<;d, subject to certain changes. There- 
 fore, there was no necessity to deal with their 
 Cireat Seals, and their Great Se.'ils wi;re, without 
 provision, the same old Great Seals. ,\s a fact, it 
 may be observed that subseipiently, shortly after 
 C^onfeder.'iticm, the Qut^eii c.iused Seals to be 
 designed and provided for all four of the Pro- 
 vinces, and for Canada, and that a combination of 
 those Seals which were suggested to and .accepted 
 by the Provinces formed the Se.'il for Canada. 
 
 (Mause 140 provides that : - 
 
 .\ny prncl.Tnialiiin wliich is .TulliDfized hv .iny .Act ot 
 the I.ORislature of the I'rnvinct- ot Canada to lie issncil 
 iiiuler the (Ire.it Seal of the Hrovinre of Ciiuuia whether 
 relating to that F'rovince or to CpinT ("aiiad.t or to Lower 
 C.iiiada, and which is not isMied hclore Ihe I'nioii, mav he 
 issued by the I.ientenaiit-(i(ivernor of ( liitaiio and yiiehec, 
 as its suhject matter lequires, nnilcr the Great Seal 
 thereof; and from and .itter the issue of siirli Procla- 
 mation tlie same and the several matters and thiiiKS 
 therein proclaimed shall lie and continue of the like force 
 and ettect in Ontario or Quebec as if tlie Union had not 
 been made. 
 
 Now, before passing to some of the ■authorities 
 which illustrate the meaning to l)e given to the 
 relevant provisions of the B. N. .\. Act, I wish to 
 refer to a few definitions of some of the phrases 
 already quoted. 
 
 Worcester's definition of the words "Great 
 Seaf:— 
 
 "The principal Seal of a Sovereign or of the 
 chief executive officer of a Government for the 
 sealing of Charters, Commissions, etc." 
 
 Worcester — " Lieutenant ; one who supplies 
 the place of a superior in his absence, a deputy." 
 
 " Lieiiteuant-Guvermir ; An officer next below the 
 Governor, and who acts as chief magistrate in case 
 of the Governor's death or resignation ; a Deputy- 
 Governor. In some luiglish Colonies jointly 
 under a Governor-General, the chief magistrate of 
 a single colony." 
 
 Webster — "Lieutenant ; an officer either civil 
 or military, who supplies the place of his superior 
 in his absence." 
 
 Webster— " £.r('fH/ivf ; (The noun) The chief 
 officer, whether King, President, or other chief 
 magistrate, who superintends the execution of the 
 laws, the person or persons who administer the 
 Government ; executive power or authority in 
 Government." ..• - 
 
24 
 
 WehMer—"E.vecHliTc; (the adjective) In Gov- 
 ermiiunt, Executive is distinf^'iiishcil from legisla- 
 tive and judicial ; (legislative being applieil to the 
 organ or organs ol Government whicli make the 
 laws ; |iidicial, lo that which interprets and ap- 
 plies the laws ; Kxecutive, to that which carries 
 them into eltect." 
 
 Imperial Dictionary — Executive; (the noun) is 
 defined just as 1 have already read it frcjm Webster. 
 
 Imperial Dictionary — •'Executive ; (adjective) 
 Ha\ing a (juality of executing or performing ; as, 
 executive power or authority ; an executive ollicer ; 
 hence, in (Government, Executive is used in dis- 
 tinction from Legislative and Judicial. 'I'he 
 body that deliberates and enacts laws, is Legis- 
 lative ; the body that judges or applies the laws 
 to particular cases is Judicial ; the body or perst)n 
 who carries the laws into effect, or superintends 
 the enforcement of them, is Kxecutive.'' 
 
 Worcester — -'Executive ; (noun) The executive 
 pow-er ; the person or the power that administers 
 the Government ; an executive oliicer. 
 
 " The word is sometimes so used in luigland, 
 but this use of it was first introduced into this 
 country ; and it is now commonly applied to the 
 President of the Unif^d States. The Constitution 
 of the LInitetl States has the phrase ' Kxecutive 
 power,' but nol simply the 'Kxecutive.' " 
 
 Turning to the authorities, I have tried, although 
 they are perliaps inextricably interlaced, to draw 
 some distinction between those which touch more 
 directly on the legislative and those which touch 
 moie diectly on the e.xecutive power; and I 
 trouble your Lordships first with a reference to 
 those which ileal more directly with the legislative 
 power, tiirowing, as they do, clear light upon tliat 
 executive power, which is, as I maintain, co-ex- 
 tensive with the other. 
 
 (jueen vs. Fiawley, 2 Cart., p. 376. At p. 591, 
 Spragge, C. J. (juotes Chief Justice Marshall's 
 statement of the powers of Sovereignty as divided 
 between the Government of the Union and the 
 Governments of the States, pointing out that 
 
 They arc eacli sDvereiBii witli respect to the objects com- 
 mitted to it. and neither sovereign with respect to the 
 objects comiiiitteil to the other. 
 
 He 'juotes further : — 
 
 It may, with ereat reason, be contended that a Govern- 
 ment entru-itetl witii sucli ample powers, on the (hie 
 execution ot which the hapi)iness and piosiierity of the 
 nation so vit.dly depends must also be entrusted witli 
 ample means tor their execution. The power being (jiven, 
 it is the interest of tlie nation 10 facilitate its execution. 
 It can never be their interest, and cannot be presumed to 
 have been their intention, to clog and eud)arrass its ex- 
 ecution by witliholding tlie most appropriate nieau^. 
 
 Then Spragge, C. J. proceeds to observe ; — ■ 
 
 The powers assigned by the ("onfederatlon .Vet to the 
 Provincial I.ejrislatures are large and various ; and it is 
 not too nuicli to say th.it it is a reasotiable contention that 
 Lesislatures entrusted with sucli powers, on the due 
 execution of wdiicli the happiness and prosperity of the 
 Provinces so largely depends must also be entrusted with 
 ample means for their execution. The learned Cliief 
 Justice had to meet this dilficiilty, that the Constitution of 
 the United .states does not confer ujion Congress 
 power, as the Confederation .Act conters upon tlie Pro- 
 vinces power, to make laws " In relation to " the enumer- 
 ated classes of subjects ; but onlv such powers as may be 
 " necessary and proper " for carrying them into execution. 
 After cominenting upon and interpreting the language 
 used, the Chief Justice proceeds : " so with respect to tlie 
 wli.de penal code ot the United States. Whence arises the 
 powt r to punish in cases nut prescribed by the Constitu- 
 tion 'i .All admit that the Government may legitimately 
 punish any violation of its laws ; and yet this is not among 
 the enumerated powers of Congress " The good sense 
 
 of the public has pronounced without hesitation that the 
 |)ower of iiunishment aiiperlaius to sovereignty, and may 
 be exercised whenever the .Sovereign h.is a liKht to act. as 
 incident. d to his constitutional powers. It is a means tor 
 carrying into execntum all sovereign powers, and may be 
 usetl, altliougli not indespensibly neces.sary. It is a right 
 incidental to the power, and conducive to its beneficial 
 exercise." 
 
 J'hen after another quotation Spragge, C. J. 
 
 s;iys : — 
 
 It enunciates clearly and forcibly, constitutional doc- 
 trines which, from the nature of the Constitution of the 
 Uuiteii States, have been necessarily presented to the 
 Consideration of tlie Judges ol lh.it country more than has 
 been thec.ise in l''.ni;l.iiul. and which, since Confetler.itiou, 
 have an important bearing 11(1011 the jiowers of the 
 Uoiiiiuion and Provincial Legi^latuI■e. 
 
 Severn v. The Queen, i Cart., -(14. At page 453 
 Strong, J. says : — 
 
 I think everything indicates that co-equal and coordinate 
 lefiisi.iiive powers in every particular were conlerred by the 
 .Act on the Provinces, and 1 know of no principle of inter- 
 pretation which would authorize such a re.idiug of the li. .N. 
 .\. Aci, as tliat proposed. H.id .sm:li been the design of the 
 fraiuers of ilie .Act. the ineunirif; cjf which I can only dis- 
 cov(u' from the words in which it is expressed, we should 
 have t'oiiiid the ease provided for. 
 
 Hoiifre v. The Queen, 3 Cart., 144. Spragge, C 
 I . at page 167 says : — 
 
 I.ooliing at tlie classes of subjects legislation upon which 
 is coininilted exclu'-ively to th<^ Provinces, it is very appar- 
 ent that it was iiitendCd th.it tlieir Leyislaturi'S slioiild 
 posse>s very lar^e and aiiiiije powers in relation to all sul>- 
 jects of a local and domestic nature. They liad possessed 
 plenary powers upon these subjecis before Confederation; 
 and tlie general seheuie of Confederation appears to liave 
 been to leave to ilieui the plen.iry control of iliese siilijects. 
 They were, under llr' .Act, Legisl.itures in reyani to itiese 
 siibjeet.s in the true and hill sense of the term. This is tlie 
 more apparent from ihe use of tlie words "exclusive" and 
 "exclusively," (and they are used repeatedly) in the Im- 
 perial .Act. Other legislation upon these classes of sulijeels 
 is excluded. No .alteration, no amendiuent, no perfecting of 
 any measure, falling within tliese classes of snhjecls. can be 
 made by auv autiiority outside of the Provincial l.enislature. 
 It is llierefore necessary tli.it thi' I'ldvinci.il I.egisl.iture 
 slioiild possess plenary power in relation 10 all these sub- 
 jects, to change, anienii. repeal, re-enact, .lud in short to deal 
 with them as ch.inge of circumstances or oilier exigencies 
 might leiuier pro|ier ; the propriety of changes in any sh.ipe 
 lu.iife. not to III; eiialleiiged by any other legislative authority, 
 ami die powi^r to iiiaKe them being limited only by the rule, 
 wlietlu^r the law making the rhange is within the class of 
 subjects legislation ujion which is assigned to Provincial 
 Legislatures. 
 
 At page 181 Burton J. says : — 
 
 livery Governmrnt which is supreme must have the capa- 
 ciiy to make its own commands ohcved. The Provincial 
 I.egisl.itiires, as I have shewn, within their respective 
 spheres, .ire al).;oliitely suprrmc. It follows that wluuever 
 the Provincial I.egisl.itures have power to enact any parti- 
 cular measure, wliether tlicv may require anything to he 
 (lone or forborne in curving out the powers granted tn tlitnii 
 by the [luperial Parliament, lliey must li.ive of necessity tlie 
 power to enforce, and we should not look for any express 
 power but for the fact that the' criminal law generally is 
 given to the noniiuion. Heiiri' it became neccssarv to 
 give express and exclusive power to the Provincial Legisla- 
 tures to declare arts of disobedience; or aeis which have a 
 tendency to interfere with the iiroposcd measures to be 
 crimes, and affix such punishments as it deemed pioper. 
 
 .And at page 182 ; — 
 
 It would seem almost a misapplication of terms to refer to 
 the Provincial Legislature as exercising a delegated authority 
 in Ihe seii^^e of being an agent of the Iniperi.il Parliament. 
 The Imperial P.irli.iment his the po" er, no doubt, to pass 
 l.iws such as those passed by the .or.il Li;gislatme and 
 affecting all Her Majesty's siibit, i> m the Province, but it is 
 equallv clear thit it is a power existing in name only, and 
 one which it would never attempt to exercise, and therefore 
 the P.irliameut of the Province cannot in that sense be 
 spoken of as exercising a delegated authority. 
 
 It is true that Parliament gave both to the Dominion and 
 to the Provinces the constii,.*'ons under which we live; 
 both limited in extent, but both giving representative iiisti- 
 
25 
 
 tmions, aiiil wivinn to llio I.fnislauiics elcctrd in llic iiiaiiiur 
 ilirrciu pciiiitcd (iiii, plenary piiwfrs of linisl.aioii willihi 
 thpir rcspcrtiM-' splicics as lainu ami aiiipli' as iliosi' iil the 
 Imperial I'ariiaTiiiiu itself. The Legislatures so electeil 
 have a (ieletjaled authority il is true, but it is of the same 
 charaeter as that of the [iiiperi.il I'arliaineiit, who are collect- 
 ively the (ii-lenalns of the whole people. 
 
 Qnccn v. Buruli At pa);t; iSS of ^rd (!nrt., lliere 
 i.s a passage cited from Lord Selborne's judg- 
 ment : — 
 
 The [ndian I.enislatiire has i)owers expressely limited hy 
 tile .\et of the Iiiipirial l\'.rliameii' uhich created it. and it 
 can, of course, do nothinu heyond tin,' limits which circum- 
 scribe these powers. Hut, when actin;; within those limits, 
 it is I It ill any seiist; an anent or delegate of tlu^ Impiri.il 
 ParliaaiiMit, but has, and was intended to have, plenary 
 powers of le>;islatinn, a>, lar^e, and of the s.inu! nature, as 
 those of Parliament itself. 
 
 Queen v. Hii(li;-e, ^rd Cart. At page 162, I'rivy 
 Council judgment, is to l)e found the well-known 
 passage, speaking of the misconception as to the 
 true character and position of the Provincial Legis- 
 latures ; stating that they are in no sense delegates 
 of or acting under any mandate trom the Imperial 
 Parliament ; that the ;iuthority is as plenary and 
 as ample within the limits prescribed by section 
 92 as tlie l.nperial Parliament possessed itself and 
 could bestow ; that within those limits 
 
 the Local [.es;islatnre is supreme, and li. is tli<> same authority 
 as the Im|)erial Parli,inieiit, or the Parliament of the 
 Dominion, wonid have had under like circumstances to con- 
 fide to a municipal institution or body of its own creation 
 authority to make by-laws or resolutions as to subjects 
 specifieil in the enactment, and with the object of carrying 
 the en.ictmeut into operation and effect. It is obvious that 
 such authority is ancillary to let,'islation ; and without it an 
 attempt to provide for v.oyinn details and macliim ry to 
 carry them out mi^lit become oppressive, or absolutely fail. 
 The very full and very elaborate jiidKnient of the Court of 
 Appeal contains .ibundance of precedtMits for this legis- 
 lation, entrustiui; .1 limited discretionary authority to others, 
 and has many illnstraiious of its necessity ami con- 
 venience. It was arRiied ,at the b,ir that a Legislature com- 
 mitting important rennlations to ayents or delegates effaces 
 itself. That is not so. It retains its powers intact ; andean, 
 whenever it pleases, destroy tlii^ a^;eucy it has created, and 
 set lip another, or t.iko the matter directlv into its own hands. 
 How far it shall seek the aid of subiirdiiiate aKcncies, and 
 how loiiH it shall contiiuu^ them, are matters for each Lef;is- 
 lature,aiid not for courts of law, to dc^terniine. 
 
 ♦ ♦ * * 
 
 The Provincial Lenislatiire, having thus the authority to 
 impose imprisonment with or without hard labour, li.as also 
 power to (iele«,ilc similar authority to tlu^ mnnicip.d body 
 which it created, called the License Coumissioners. 
 
 Blink of Toronto ~>. Lnmhe ; — My reference is to 
 L. R,; 12 App. Cas,, p. 586 : — 
 
 Theiiit issuRKcsted that the Le(>islatnre may lay on taxes so 
 heavy as to crush a bank out of existence, and so to nullify 
 the power of P.trli.iment to erect b.iiiks. Hut their Lordships 
 cannot conceive th.it when the lmi)eii.il Parli,iinent con- 
 ferred wide powers of local self->;overniuent on Kreat countries 
 such as (.juebec, it intended to limit them on the speculation 
 that they would be used in an injurious manner. People who 
 are trusted with the great power of ni.ikinn laws for piopertv 
 and civil rlt;bts may well bi' trusted to hvy taxes. There are 
 obvious reasons for conliuiiiti their power to direct taxes and 
 licenses, because tlii' pow( r of indirect taxation would be 
 felt all over the Iloniinion. Hut, whatever power falls within 
 the legitimate meaning; of classes two and nine, is, in their 
 Lordships' juilnment. what thi! Imperial Parliament intended 
 to nivt^ ; and to place a limit oil il liecause tlu^ power may be 
 used unwi'iely, as all powers may, would be an error, and 
 would lead to insuperable difficulties, in the conslrnction of 
 the Federation .\ct. 
 
 The Alty-denl. a/ Ihilish Columbia r. Atty-CnnI, 
 of CduaiUi ; 14 .\pp Cas. 2135; Arguendo by 
 Coimsel for the .\tty-C.enI. of Canada ; at p. 2i).S 
 and at p. ^oi there are phrases which are import- 
 ant as indicating the view of the Counsel for the 
 Dominion. 
 
 At page ^o2 there is a discussion by the Court 
 in which they point out that, according to the law 
 
 of luiglanii, goki ind silver mines, until they have 
 been acttially severed from t)ie title of the Crown, 
 and vested in a subject, are not regarded ;\^ p lies 
 soli or as incidtiuts of the land in which they are 
 found. Not only so, but the right of tlie Crown to 
 land and the iiaser metals which it cont.iins stands 
 upon a different title from that to which its right 
 to the precious metal must be ascribed, and they 
 show that 
 
 mines of ;^old and silver within the realm, win liier they be 
 in the lancl^ of the (.Ineeii or of subjects, belong; to the (Jiieen 
 by prerogative, with liberty to diy and carry away the ores 
 tlu reof. and with other sucli iucidiMits thereto as are neces- 
 sary to be used for tlii' >;ettiiiK of the ort.'. 
 
 After that statement of the nature and ciiar- 
 acter of the title to the precious metals, 
 
 In British Columbi.i, says the Court, the right to |)ublic 
 binds, and the right to precious metals in all Provincial lauds 
 whether imblic or ])iiv,ite still rest upon titles .is distinct as 
 if the Crown h,id never jLirted with its beuehci.il interest ; 
 and th(' Crown assigned these beneficial interests to the 
 Ciovernmeiu of the Province, in order th.it they might he 
 appropriated to the same State purposes to which they 
 would have been applicable if they had riinained in the 
 possession of the Crown. Although the Provincial Govern- 
 ment has now the dispos.il of all revenues derived from pre- 
 rogative rights connected with l.ind or minerals in British 
 Columbia, these revenues differ in legal quality from 
 the ordinary territori.il revenues of the Crown. It 
 therefori? a|)peais to theit Lordships that a con- 
 veyance by the Province of "Public Lands" which is, 
 in substance, an assignment of its rights to ap|)ropriaie the 
 territorial revenue-, arising from such lands (l(jes not imply 
 any transfer of its interest in revenues arising from the pre- 
 rogative rights of the Crown. 
 
 So it happened that a transfer by the Provincial 
 Government of British Columbia to the (Jueen as 
 representing the l)o!ninion of C'anada of a large 
 block of the Crown lands was held to transfer the 
 soil only of Crown lands, not including the prerog- 
 ative rights with reference to the precious metals, 
 but on the contrary excluding those prerogative 
 rights, which remained in the Crinerntnent of 
 l?ritish Columliia. So thorough and full was the 
 transfer of prerogative right to the I'rovince, and 
 so narrow was the construction to be given of the 
 grant which the Pro\inci;il (jovernment inade of 
 the C'rown lands, that the Court held fust that the 
 Province obtained, and secondly that it did not, by 
 its conveyance of the land to the Crown in the in- 
 terests of Canada, part with, the prerogative rights 
 to the precious metals. 
 
 Hi.'HToN, J. — I tmderstand you to say that was 
 without any exception in the grant ? 
 
 (.'oiNsKi. Without any e.xception in the grant. 
 It w;is held to be .-mother and ditterent title, a pre- 
 rogative right which the (!rown was not to be as- 
 sunu'd to be granting, of which the Crown in l^ritish 
 Columbia was not, even by its transfer to the 
 Crown in Can.ifla, disposing; but which itretaineil ; 
 thus throwing, I think, a very strong light upon the 
 sovereign character of the powers and upon the 
 high position of the Provinces 
 
 I refer also, without reading the (jiiot.ititm, to the 
 judgment of the Chief Justice of this Court in 17 
 Ontario, 2ji, Jueeu ;<. \Vtison, and to the judgment 
 of Osier. J. at page 2.}3. 
 
 Eudlich on the Interpietiilion of Sttitutcs, section 
 
 5-55. iw«e 753- — 
 
 Whatever is indispensable to render effective any prnvision 
 of a constitution, whether the same be a proliibitinn or 
 restriction, or the grant of a power, must bi: deemeil implied 
 and intended in the provision itself, so tliat, wherever a 
 general power is given or dutv enjoined, every particular 
 power necessary lor the exercise of the one and the per- 
 formance of the other is given by implication." 
 
Coolry's Coiialiliilioiuil Liiiiilatinns, .(tli i- iitinn. 
 cliapter 4, page 77 ; — 
 
 Tlip iriiplirailoiis from tlit^ provisions of a roiisiiiiuioii arc 
 soinciiiMi's I'xcridinnly iiiiportaiu. and li.ivc lari^c iMthunn- 
 upon its consirni'iion. In regard to ilii- consiitnilon oftlic 
 United Slates tlic rnlc has lirin laid down that wlnrc a 
 Hcnoral power is cotderred or a (hay enioined, every par- 
 ticular power necessary for the exercise of ijie oni', or the 
 peiforni.ince of tli<j other, is also eonferreii. 'I'lie same rnle 
 has lieen applied to tlie State constitntion, with an important 
 modification, liy tlie SiipuMne Court of Illinois. 
 
 It quotes the rule ns stated, 'I'lie rule applies t<> 
 the exercise of power by all ] V'p.utmeiits ami all 
 oliicers. 
 
 Po7i'i'l! V. ApolUt Caiitllf Caiitpiny, < Cart., page 
 442. After citing two passages in (,Jiieen v. lUirah 
 and Hodge \'. The Hiieen, to which 1 have already 
 referred : 
 
 These two cases have put an end to the doctrine which 
 appears at one time to iiavi' had some cmrency, tliat a 
 Coloiii.il l.e^islailire is a delenale of the Inijierial Legisla- 
 ture. It is a I.e}.;islatnre restricted in the air.i of its jiowi'is, 
 Init within that ana nnrestricted, and not acting .is an a^ent 
 or delf.'Hate. 
 
 And in the report of the same case in I.. R. 10 
 App. C"a., page 2i)i : — 
 
 It "S arKne<l that the tax in question has heen imposed liy 
 the Government, and ?iot by the I.t'nislatnre, wlio alone haii 
 power to imiKisi^ it. lini tlie duties levied tnider tlu; Order- 
 in-("oiMicil are really U'vied by the authority of llu'.\ci mukr 
 wliich the order is issued. 
 
 There the contention was that the ("(institutional 
 Act authorized the Legislature to levy duties ; but 
 that it tlid not authorize the Legislature to empower 
 the Oovernor to levy duties, a power which they 
 had assumed to give. LUit the judgment says: — 
 
 Hut the duties levied under the ()rder-in-Council are really 
 leviinl by the aiuliority of the .\ct under which the order is 
 issued. 
 
 The l.e^iislatme has not parti'd witli its perfect control 
 over tlu! flovmnor. and has the power, of ctnnsp, at any 
 moment, of withdr.iwiui; or altering thi' power which they 
 have entrusted to him. 
 
 So that the method of handing ovtu' the legisla- 
 tive function to the lixecutive was expressly recog- 
 nized as competent ; and that even with reference 
 to the important and peculiar iiuestion of taxation. 
 
 Now, with reference to the authorities, which, 
 dealing more or less with the same subject, touch a 
 little more nearly or expressly, upon the executive 
 power. I may refer your Lorclshiiis in the tirst 
 place to a siatemen" made in " Tudil's Parliumcnt- 
 ary Guverumcnt i)i /he British Cnhiuii's," jiages ^()S 
 to 40;j, with all of which 1 do not find m\ self able 
 to agree, but the general statement of which is, 
 I think, fairly accurate, and at any rate, worth 
 perusal. It deals with the positi m claimed for 
 the Lieutenant-Governors of the Provinces oft.'an- 
 ada, concluding with the statement ; — 
 
 It is evident, therefore, that, in a modified but most real 
 sense, the I.iriiteiiant-Governors of the C.iiiadiaii Provinces 
 are representatives of the Crown. 
 
 I also, in the same connection, refer to an article 
 in Rose-Helford's Cuiiiidiiiii Monthly, of which I 
 happen to have a separate print which 1 w ill hand 
 in for the convenii;nce of the ('ourt, calleil " A 
 sketch of the jirerogative of the Crown in Colonial 
 legislation." It is by Mr. Modgins, the present 
 Master of the Court of t^hancery. It contains a 
 very large number of references to the authorities, 
 and to the methods in which the prerogative was 
 exercised in the early Colonies, and will, therefore, 
 enable me to omit the detailed statement which I 
 might otherwise have felt it my duty to make of 
 
 tlu; position in tlu; old Colonies before ihe Kevolu 
 lion, a point to which I have already brieHy ad- 
 verted 
 
 I'he case of ThchcrL^c v. Laudiy, in 1 Cart , page 
 9, is not wholly unimportant. Ihere the I'rivy 
 Council had to deal with the question whether 
 there exisled a right to appeal from a decisit^n of a 
 Tril)iinal empowered by the Legislatiue of (Juebec 
 to (li;al with matters of election to the Assembly of 
 that Province. 'Ihe Court says ; — 
 
 These are considerations which lead their I.ordship.s not 
 ill any way to infrinne, which they would be far from doing, 
 upon the general principle that the preiogative of the Crowr, 
 once established, cannot be taken away, except by express 
 words : 
 
 for that was the suggestion there, not that it coidd 
 not be taken away at all, but that it coukl not be 
 taken away except by express words — 
 
 but, to consider with anxiety whether in the scheme of this 
 let;islation it ever was inteinleil to cie.iie .1 ti ibimal which 
 should havt% as one of its incidents, the li.ibiliiy to be re- 
 viewed by tlu^ Crown under its prerogative;. In other words, 
 their Lordships have to coiisid(;r, not whether there arc 
 exi>ress words here, taking; away the preroj^ative, but 
 whether then; ever was the iiu<;iition of creating this tribu- 
 11. il with the ordinary incident of an appeal to tin; Crown. 
 
 I need hardly say that that seems to be another 
 mode of .arriving at the same c inclusion. It it be 
 indicated !))■ the .\ct, or by the circimistances, that 
 the trihiuird is intended by the Legislature to be 
 created, without the incident of an appeal to the 
 Crown — whether that indication be effected by 
 some other means, or by an express statement that 
 there should be no appeal, .seems to me to be in- 
 different. 
 
 In tlie opinion of their Lordships, adverting to these con- 
 sitlerations, the ootli s(;ctioii. which says that the jud>;nient 
 shali not bi; susceiuibli; of appe.il, is an enactineni which 
 indie, ites clearly the intention of the Let;islature under this 
 Act — an Act wliicli is assented to on the part of the Crown, 
 and to which the Crown, therefore, is ,i party— to i reate this 
 trilnmal for the purpose of tryint; election petitions in a 
 inaniK r which should make its decision tiii.il to .ill purposes, 
 and should not .iiiiiex lo it the incident of its ]iidKnient being 
 rt;viewi(i by the t'lciwii undt;r its pruroyative. 
 
 Well, ih;it statement is also important as indicat- 
 ing the viewof the judicial Committee, that the 
 Provincial Acts were assented to on the part of 
 the Crown, and that the Ciown was to thern a 
 party. Of course, we know that is the form in 
 which the Pro\ iiuial .\cts were, whether acciinilely 
 or inaccurately, framed from the time of Confed- 
 eration onward, in at any rate both Ontario and 
 Ouebec, wliich followed in that respect the course 
 pursued in the old Province of Canatla. 
 
 1 may say I regard it as utterly immaterial, with 
 reference to any of the (piestions now in hand, 
 whether that form be of be not the accurate form 
 under the B. N. A. Act. It was not the form in 
 Nova Scoti.i and New Prunswick. In neither of 
 them as I think was the (,)iieen's name used before 
 Confederatitui. So, in several of the old Colonies; 
 as your Lordships will find by the pamphlet to 
 which I have referred, the power of legislation 
 granted was not exercised in the name of the 
 Oiieen, But the etfect of the Acts in all their as- 
 pects, the r.'inge of the powers of the Legisl.iture 
 ,'iiid of the Lxec;;tive, in every respect, remained 
 unaftected by the circumstance that the (,)ueen's 
 name was not used. 
 
 The Queen v. Amer, i Cart. The judgment of 
 Wilson, j. at p. 7^5, dealswith the exclusive power 
 of the Legislature of Ontario to make laws in 
 relation to "the administration of justice" and 
 points out that there has been no legislation by 
 
Clntario declaring that the Lieutenant-Governur 
 may issue commissions for holding Courts of 
 Assize ; but shows that by section 65 of the Act the 
 power was exercisable as an (^k! power, vested in the 
 (jld lyieiitenant-( Governor of Upjier C'anada before 
 the legislative Union ot Upper and Lower Canada, 
 and by the (i()Vf;rnor-Cieneral after tli.'it I'nion ; 
 and that therecould be little doubt th;it the Lieuten- 
 ani-(io\ ernor of ( )niario h;is the power to issue the 
 commissions. 
 
 The Qiii-iit V. Biiiiiitt, 2. Cart., p. 6jS. The 
 judgment of Cameron, J. : — • 
 
 The only rLiii.iiiiiiii; question is, tlie st.itiis of the poHce 
 m.igisUate. This involves the iMiport^iiit Constiiiitioiial 
 i]iieslijii, ill whioli Goveriiiiieiu aiul Le^ishiliire tests the 
 power of appointing or inakiiit; l.uvs for tiie appoiiitinetit of 
 police niamsti.ites and other jnstires of the jieace. The' lirst 
 Act of tlie Le'>;ishitiH<' respertiiin the apiiointnieni of iuslires 
 of the pciee since llie ere.itioii of the new I'onsliiinion of llie 
 Uoininion .uid Provinces under tlie Hritisli Not th Aiiierira 
 Act, 1S67, was passed at the tirst session of the Local Let;is- 
 lature on the .(th March, iSfiS. I w.is then a nieinher of the 
 K.xecntive ('onncil of this l'rovinc<\ \> hicli was responsihle 
 for the introduction of the liill th.ii at\>rw,irds p.issed into an 
 Act of the I.enislature. The British North .Anu'iica ,\ct made 
 lUJ express provisioti on the sidjject of the appoiutnient ot 
 justices of the pi'ace, or any officer connecied with the ad- 
 ininistr.ition ot justice inferior or sidiordinate to the Judges 
 of the Superior snil County Courts, h'rom the' incre.ise in 
 the po]iuhitiou in the old, and tlie settlement of new iiortions 
 of the country, it w.is necess.n y that provision should lie made 
 for the ,ij)pointmeut of justices of t,it^ peace, as it w.ts con- 
 ceived th, it without k'fjislation there w.is no (lower of ap- 
 ]iointuu'nl resliut; in the Ueutenanl-Ciovernor or the 
 (fOveruor-Geiieral. l^'iom the ahsence of express provision 
 in the British North .America .\ci, ami the vestiiiy in the 
 LoCiil I,,'f;isl,itiire of the I'rovince the exclusivi' power to 
 make laws in relation to the administration ot justice in thi^ 
 Province, including' the constitution, mainten.ince. and 
 ors,'anizatiou of Provincial Conns, both of civil and rrimiu,il 
 jurisdiction, it Wiis com'ei\f'd the jiower to p;iss such a law 
 Iiiiist rest exclusively with the I.oc.il I.e^islature. The view 
 that the I'^xiHMitive Onincil as a whoh'. or any individual 
 liieniher of it, luitertaiued, le.idini; to the introduction of the 
 enactment, is of no conseipieuce if the .\rt is in f,ict iiltni 
 I'hrs, anil I merely n^fer to th.it view as indicaliiii,' the ijues- 
 tion now raised, was present to tlie mind of the fr.iiners of 
 the .\ct, and it is only reasonalile to assume it was present to 
 the C.overnor-(;eiiei,il of the nomiiiioii when the .Act was 
 cominiinicateii to him, and no' disallowed under the powir 
 of disallowance vested in him ii.ider section <)o of tlie H. N. .\. 
 Act. I assume there is no doubt that the .ippoiiument of 
 Justices of till! Pe, ice w,is a pieroijalive of the Crown, lint the 
 I.efiislatiire of I'pper Canaihi ,iiid the P,ii li.inieiit of the 
 Province of Canada have assnined, without the power so to 
 do h.ivitiK heretofore been questioned, to legislate in 
 reference to tlioir jurisdiction and qii.ililication. 
 
 The learned Judge proceeds to distinguish the 
 case of Lenoir v. Ritchie, and the view of the 
 Supreme Court, from the case in hand. " The 
 oftice of the Police Magistrate," he then goes on to 
 say, 
 
 is the simple cre.ition of ,111 .\ct of the Legislature, and in 
 creatiiit,' the oliice it hiid, when not in contlict with the 
 express or iniplifd powers nf such Lenislatiire, or in excess 
 thereof the ii'_;lil to deterniiiie how tlie appoiiitnieiil should 
 be made. The power of .iiipoinlmi lit iiiider the .\ct in 
 question is ;;ivi"n to the Lieuten.inl-Ciovernor in Council, as 
 the power w.is liiven under ch.iiuer tot of tauisolidati d 
 Statutes of Canada to the Cioveriior-Geiieral in (■oiincil, 10 
 appoint M,iiiistrates or Justices of the Peace under the .\ct. 
 
 Then at page C\\z he proceeds: — 
 
 Hut in mv oninion Justices of tlie Peace are part of the 
 Rvsli'iii of the adiiiinistralion of Justice in the I'rovince. and 
 tlifrefore under sub section 14 of section 1)2 of the B. N. A. 
 Act, the ritiht to le^;isl,ile as to their ai>poiiitnient is exiiressly 
 conferred upon the Leiiislatnre of the Province; and there- 
 fore Mr. YoiiiiK was duly appointed Police Mai;islr,ite for tlie 
 Cnuii'v of Haltoii. This view is supported bv the iirovision 
 coiit.iiiied ill section i^n, L'iviniJ the ,it)pointtiient o{ |udi,'es in 
 the Superior Distrii t and ("oiiiiiy Courts to the Ciovernor- 
 General, and no provision Ijcini; made for the appointment 
 of anv subordin:ite officer or authority in connection with the 
 adininistr.uion. indicatim; that the intentiou of the Imperial 
 Parliament, under the .issiiinment of the power Jo make laws 
 
 relating 10 tlie adniiiiislralion of Justice to the Local Legis- 
 lature w.is to yive such I.esiisl.iture full power to legislate as 
 to the appointineiu of all oflicers connected with the adniin- 
 isir,itioii, except the JmUis, in respect to whose appointment 
 the .ippoiiiting power W.IS expressly indie. ited. 
 
 I repeat, without enlarging upon it, the argument 
 which I made in Oueen v. Wason before your 
 Lordships, to this etiect, that, but for the circum- 
 stance that it was intended t.. divorce from the 
 general subject of administration the appointment 
 of Surierior and ('oiinty Court Judges, )our Lord- 
 ships would have found no reference at all to the 
 appointment of any ludges in the B. N. A. Act. 
 The legislative power to constitute the (Courts, to 
 effect their organi/.ttion, would have implied the 
 f.ower to make them comjilete by the :ippointment 
 of the Judges. Hut it was because it was intended 
 to assign the power of .-ippointing Judges to another 
 politic.il entity ih.it this p.irticul.ir grant was 
 necessaril) specilied in the Act. To the extent to 
 which appointing powers, necessary to complete 
 the legislatise .\cts of the Local Legisl.'iture, were 
 left with the local authority, no express mention 
 was necessary, because they were a part of the 
 whole ; they tjelonged to it ; they were a portion 
 of the executive powers, complementary and 
 essential to the completion of the legisl.itive pow- 
 ers expressly granted ; and according to the general 
 schenu! of the .\ct they are therefore not specified, 
 but implied. 
 
 Thus in Wilson \ . McCmiri:, z Cart., page 671, the 
 judgmiMit of your Lordship the Chief Justice 
 points out that 
 
 The Le>;is!altire of Oiit.iri.) lias complete power over the 
 Division Courts .is to their existence, constitution, re- 
 arr,iiit;i:nient. 
 
 ;in(l so on. 
 
 In the case of the Superior and County Courts the general 
 Covernnient interposed in the power of appoieting the 
 JmUes. 
 
 The Couiitv Judties appointed l)v tlie Crown li.'.ve presided 
 over these Ilivision Courts from their establishment. 
 
 The I'rovincial Li^wisl.itnre, since its establishment, has 
 iiMile many chan>;es in these Courts, cnlarfiins,' tliinr juris- 
 diction, ,ind m.ikiiiK' provisions for enforcint; their progress 
 over propertv and p', isoiis outside their ordinar\' boundaries, 
 but hive never interfered with the principle of having them 
 presided over by .i County Judge, and, as already noticed, 
 even liefore Confederation the Judge of another County 
 could act in the case of ilhies; or imavoidalile absence. 
 
 .\s thev li.ive power to abolish such Cniiris ami to establish 
 others for the dis]ios,il of the lik( or other classes of busi- 
 ness. I assume their right to appoint oflicers to preside over 
 them 
 
 confirming the view I have just ventured to state 
 that the right to appoint, the right to perform the 
 executive act, or to vest in another the performance 
 of the e\ecuti\e act of appointment of a Judge, is 
 in\()lved or implied in the Irgislative power of 
 creating a Court. 
 
 Then, when this grouping .\cl was i)asscd, regarding it 
 solelv in its bciiiiig on I)ivisii)n Courts I can see no valid 
 objection to the Legislature directing that the Judges, senior 
 and imiior, of the grouped Counties, should arrange among 
 theinsi Ives that the duty of presiding should bi' taken rota- 
 tion. 
 
 Mercer V. AttoritfyGiucral fo/- Ontario. I wish 
 to refer your Lordships, for the s;ike of brevity, to 
 the argument which was reported in 5 S. C. Re- 
 ports, page 577. The jiosition which, as one of the 
 Counsel in the cause, I then took as to the condi- 
 tion of the different Provinces, and the construc- 
 tion of the Cfinfederation Act, is in part germane 
 to this argument. 
 
 I refer also, at page 398, to some observations ol 
 Mr Bethume, argueudo ; and at page 603, to cer- 
 
a8 
 
 tain are[uments of M r.nranger as Counsel for 
 yuebec. 
 
 In the same case I refer to ^ni Cart\vri},'lu, paue 
 26: — Kitchie, t". J., after ciuii}^ tlie Acts, I'roclriin- 
 ations, etc., points out tiiat the [provisions whicti 
 were plainly niaile witii reference to certain proc- 
 l.ain.itions and powers, and so on, as to Ontario 
 and yuebec, were not necessary for the other 
 i'rovinces. 
 
 As llic Kxnniiivo Govcniinrnts of Nova Sccuia and Nmv 
 Hniii>wic;k wcic cuiiiiiun il lliisc pnivisioiis were not iicccs- 
 s.ii')' .IS lo tho^t' l'io\iiu'c'., 1)111 ilu'sc various t-iLiciiiicni^ .im! 
 tile ninliiiiMiici,' of tlic cxciiitivt; ('lOViMMiiii'Iilsor Nov.i Scoli.i 
 and N( \v Hi iiiiswick verv licaily show that tht' I'roviiii-ial 
 exL'Cutivc power and aiuhorily was to be piccisuly the saiiiu 
 after as before Coiifedei.iiioii ; that whatever executive 
 powi^rs roiUd be exerciseil or .idniiMisirati ve acts done ill 
 rehilioii to the ("lovei iinient of .in' I'i'oviiires respeclivily by 
 ihi! Lieiiteiiaiit-tioveiMor of a I'loviiice before Confeder.ition 
 can lie exercised or done by Lieuteii.int-Clovernors since 
 Confederation, snliject, of course, 10 the provisions of the 
 Act, as it is s.iid. in refeii^nce to Nova Scnii.i and New 
 Brunswick, and is exjiressed in reference to Oiil.uio and 
 Quebec, "as far as tlie same are cip.dile of beiiii4 exercised 
 after the Uition." 
 
 That is to say, tli.it the executive Govi'rninent of the 
 Province as exercisi'd by the I.ieuteii.ini-Ciovernors and ex- 
 ecutive Councils, until altered by the 1 especiive l,e|,i datiires, 
 continues as before Coiif.'tler.iiion. exci-pi so lar as tlur 
 executive powers of the (ioviMiior-Cieiier.d over the I)o- 
 niinioii of Canad.i may iiiKrfere. 
 
 Therefore, when it IS claiineii that a (,ieut( nant-(.;ovenior 
 and Council are not competent tode.dwitli ,1 111. liter or do 
 an executive ad[ninisirativ<< Act that was within their ciun- 
 petency befori- Confeder.ition. the bmtheii is cast on those 
 )iuttiiit; tbrw.ird such a claim to shew cle.iily from the- H. N. 
 .\. \c,l that by express l.in^iia^ie or liy iiecess.iry iinplicatioii 
 the local governments have been denuded of that authority, 
 and the power has been placed in the executive authority of 
 the Dominion. Special pains .appear to me to li.ive been 
 taken to preserve the .lutonomy.of the l'rovinc(;s, so far as it 
 could be consistently with the Federal Union. 
 
 To say then that tlu! Lieutenant-Governors, because ap- 
 ptiintetl l)v the Governor-General, do not in any sense repre- 
 sent the (Jueen in the Government of their I'ltivinces, is, in 
 my opinion, a fallacy ; they reijresent the (Jui'en as Lieuten- 
 ant-Governors did before Confederation, in the performance 
 of all executive or administrative Acts now left to be per- 
 formed by Lieiitenant-Clovernors in the I'rovinces in the 
 name of the (jueen. and this is notably maiie app.ireiit in 
 section H:, which enacts th.it "the Lieiiten.tnt-Governor of 
 Ontario and (Quebec shitll fnuii time to time, in tin; (,}ueen's 
 name, by ! ,truuieiit iiiuier the Great .Seal of the Province, 
 summon a. id c.ill tof;etli(M- the Le^iskitive Assembly of the 
 Province," and with reference to which matter, nothing; is 
 said with respect to Nova Scoti.i and New Hrunswick, the 
 reason for which is obvious, the executive authority at Con- 
 federation continuing to exist, the Lieutenant-Governors of 
 those I'rovinces were clothed with authority lo represent the 
 (.jueen, and in Her name called toye her the Legislatures — 
 .ind .also in tin; section retainint; the use of the (i'lreat Seals, 
 for the Gicat Sial is never .ittaclied to a document excejn to 
 authentic. ite an Act done in the (Jc.een's name, such as 
 proclamations snmmoninn the Legislatures, conimissions ap- 
 pointing the lii^ili executivi^ otficers of the Province, grants 
 of public lands, which >;r.uus are alw.r.v; issueii in the name 
 of the IJ'ieen, under tin; Provinci.il Great Seals. 
 
 These beinn the direct enactinents in the matter of tlie 
 executive powers of the Ilominion and tlii' I'rovinces re- 
 spectively, it is well to look at the distribiuion of U'Kislativr 
 powers; and as to all matters cnniint; within the classes of 
 siibjects enunierated over which the exclusive le>;islative 
 authority of the Parliament of C.inada is declared to extend, 
 then; is not to be foiinil one word expressiii),' or imiilvinj; the 
 ri>;lit to interfere with Piovincial executive autliority, or 
 property, or its incidents, whereas, in the eiiunieration of 
 the matters coming within the classes of subjects in rel.ition 
 to which the Proviiici.il Legislatures may exclusively m.ike 
 laws, we tiiid ninnber 1 :— The amei'.dnient from time to time, 
 notwithstanding anythiiiK in this .Vet, ol the consiiiiuion of 
 the Province, except as ret'ards the office of LientenaiU- 
 Governor. and from this I think a fair inference may be 
 drawn, that as the Litnitenaiu-Govi^rnor under certain cir- 
 ciiristances and in certain in.itieis h.ivim; refenuice to I'ro- 
 vin ial administration represents the Crown, the Provincial 
 I,e|i;. statures are not permitted to interfere with this office. 
 
 At page 33 the same learned Judge says : — 
 
 It is at the same tiint^ equally the duty of all Courts, 
 especially this app(niate tribunal, to recoKiii/e and preserve 
 
 to the executive Governments and local Leeislatures of th« 
 
 Provinces their just ii>;hl-). whether pulitic.il 01 piopriet.in , 
 anil not to |iei mil the Provinces to be deprived ol their loc.ii 
 and territorial ritilits on the plea that Lieiiteii.int-G.ivernors 
 in no sense represent the Crown, and therefore all seinilol ial 
 or preroii.iti ve ii^:lits. or ri^:lits eiifoict-'able as sei^norial 
 or |Meio>^,ilive ri^jhls. of necessity belong lo the Dominion. 
 
 While I do not think it can be for a moment contended 
 that the Lieiiteiianl-Goveniors iiiidei Confederation repre- 
 sent the Crown as the Lieiiteiiant-t.'iovernors before Con- 
 feder.ition did. 1 ^hink it must be conceded that Lieutenant- 
 Governors, since C'onfedei.ition, do represent the Crown, 
 thoiiKh doubtless in a modihed niaiiner. 
 
 In my opinion it w.is not intended by the H. N. A. Act to 
 deprive the Piovinces'of the executive and legislative con- 
 trol over the iniblic property of the Province, or the incidents 
 of such properly, or other m.itteis of a pu.ely local natiiic. 
 exce|)t such ,is .ire specific. illy taken from them, and that 
 within the scope of the executive and legislative powers 
 confided to the Doiiiinion and Provinces respectively, they 
 are separate .ind independent, neither haviii)^ any rijjlit to 
 interfere with or intrude on those of the other. 
 
 HAc.Airrv, C. J.- 
 was unanimous ? 
 
 CoiiNsKL— Oh, no 
 the Supreme Court 
 con:;titutional cases 
 
 Do you say th;il the Court 
 
 my Lord, i'hat happened in 
 which is not uncommon in 
 the Court was divided ; the 
 Supreme Court held, by a majority, adversely to 
 the ri).;lu of the l'ro\inct!s ; but the Judicial Com- 
 mittee agreed in the conclu.sion of the t^hief )tistice. 
 In jrd Cart., is the judf^tiient of the Judicial 
 Cotnmittee. Page 77S : — 
 
 It ajipe.irs. however, to their Lordships to be a fallacy to 
 .issume ili.it bicause the word " Royalties" in this context 
 would not be inofficious or insensible, if it were refiarded as 
 liavinti lelennce lo mines and minerals, it ouKht. therefore. 
 to be limiied to those subjects. They see no re.ison why it 
 should not have its iiriniary and appropriate sense, as to lal 
 all evenisl all ihe subjects with which it is lieri' found 
 .associated, lands .is well as mines ,ind minerals; (!veii as to 
 mines and minerals it here necessarily siniiities rights belong- 
 iiiK to the Ctoviw jiiie ccroiiir. The (general subject of the 
 whole seciicin isot .1 liinh political nature; it is the attribution 
 of Royal territorial ri>;liis, for purposes of revenue and 
 Government, to the I'rovinces in which they are situate, or 
 arise. It is a sound maxim of law. that every word ought, 
 frima facie, to be construed in its primary and natural sense, 
 unless a secoiiilary or more limited sense is required by the 
 subject or the context. 
 
 The judgment points out the meaning of 
 "Royalties," "regalities," "jura regalia," "jura 
 regia," and the argutnent in a case which their 
 Lordships consider to correctly state the law. 
 They hold in the end 
 
 that till larger interiiretation. which they regard as in itself 
 the more proper and n.itnral. also seems to b<! that most con- 
 sistent wiih the nature and (iemral olijects of this p.irticular 
 enactint-ni, which certainly includes all other territorial 
 revenues of the Crown arisiiif," within the ri^spective Pro- 
 vinci s. 
 
 Then I refer to the case of The Queen v. St. 
 Catluiriiit-s Milliiiq; Co., in this Court, ij App. Re- 
 ports ; and the judgment of your Lordship, Mr. 
 Justice Burton, at page id.j, which adverts, first to 
 the case of Lenoir v. Rilcliie. and points out that 
 the case in hand is not on all fours with that ; and 
 then discusses at some length the powers of the 
 Provinces; and the method of interpretation of the 
 1). N. A. .\ct is thusdetined, it is " to be interpreted 
 in a broad, liberal, and (juasi political sense." 
 
 The judgmimt of Patterson, [. is also material. 
 
 Then I refer to the Privy Council report of tiie 
 same case, 14 App. Ca. 4^, page 55, which points 
 out what was done in 1840 with reference to the 
 produce of the territorial and other revenues at 
 the disposal of the Crown, placed in the Consoli- 
 dated Pund of the new Province then created ; and 
 adds : — 
 
 There was no transfer to the Province of any le(<al estate 
 in the Ci 1 Lands, which continued to be vested in the 
 
ig 
 
 Sovereign ; but all moneys realized by sales or in any other 
 inaiiMtr btcamt' tin.' prtipi-iiy uf tli(t Fiovincc. In other 
 wuids, all Ix-ntlirial iiiii'rcst in Mioh lands within the pro- 
 vinci.il boMiiilarii?, lulcm^iMU lu ihr ijnci'ii, and I'itlicr pro- 
 dnciji'4 or capable ol pin(iiii'inn levcniic, pas^,L•d to ihi' 
 l^iovincc, thi^ title still reniainin^; in thi' I'rown. Th.it con- 
 tinned to be the ri>;lit ol the I'rciviiicc until the p.issiiit,' of 
 the liritibh North Anieiica Aet, i.Sd;. 
 
 The Act of iSii-, which rn-.iied the Federal Goveiinnent, 
 repealed the Act of 1S40, and restored the Uppei and Lower 
 Canadas to the londiiion of separate I'rovinces. 
 
 There is the phrase which the Privy ("otiiicil 
 itself uses, after listening to tlie armiinent which 
 was acklressed to them as to the meaninj^ of tlu^ 
 Confederation Act ; " Ristored thf L'ppir diul Lott'er 
 Canadas," under tht; title of Ontario ami (Jiiehec. 
 
 In constrninti thesi- liiiactinents, it innst alw.iys be kept in 
 view, that, wIuk ver |>nl)lic land with its incidents i> 
 described as "the property of" or as ■■ hilontiiny to'' tin: 
 Dominion or a Province, th 'siy expressiotis merely import 
 that the rinlit to its beneficial use, or to its proceeds, have 
 been .ippropriateil to tin; Dominion or the I'rovince, as the 
 case may be, and is subject to tlie control of its l.eyislatiire, 
 the land itself beinn vested in the Crowti. 
 
 There, your Lordships see the tjround distinctly 
 taken by the Privy Council ; that the land was 
 originally vested in the Crown, and always con- 
 tinued to be vested in the Crown; that the titlti 
 was not transferred to the Province, but always 
 remained in Her Majesty ; that the beneficial en- 
 joyment of the land and its proceeds became the 
 property of the Province ; that the Province 
 became entitled to legislate in reference to the 
 land. There then is Crown land, vested in Her 
 Majesty ; and, because the beneficial enjoyment of 
 it becomes the property of the l^rovince, it is en- 
 titled to legislate ; and that in such a way as to 
 divest the title of the Crown ; wliich the (Ontario 
 Legislature did, as I said yesterday, by an Act 
 passed very early after Confederation, making the 
 Commis; iioner of Crown lands the person entitled 
 to deal with the land. 
 
 The enactments of sec. log, are, in the opinion of their 
 Lordships, sufficient to (>ive to e.ich Province, subject to the 
 administration an<l control of its own Lcyislatnre, the entire 
 beneficial interest of the Crown in all lands within its 
 bonndaries, which at the time of the Union were vesttid in 
 the Crown, 
 
 So strongly did the Court hold that the Crown 
 subsisted in Cntario in reference to lands in the 
 Province for Provincial purposes — that there was 
 a Crown in righ' of Ontario, as a Crown in right of 
 the Dominion — that they construed the instru- 
 ment which had been prepared by the (iovernment 
 of Canada between it and the Indians concerned, 
 a document ceding and releasing 
 
 the territory in <lispnte, in order that it might be opened np 
 for settlement imnii>;ration. ,'ind sm h other purposes as to Her 
 Majesty mitht seem fit, to the Ciovernineiu of the Dominion 
 of (Canada, for the Ijueen and Her successors forever, 
 
 as ceding it to the Queen in the interest and right 
 of the Province of Ontario; not to the Queen in 
 the interest and right of the Dominion. 
 
 Hagartv, t". J. — But was not ti-at the time the 
 territory was supposetl to belong to the Dominion ? 
 
 CotJSSKi, — Which would make the argument, a 
 fortiori, stronger for the other construction. It 
 was disputed. At the time that document was 
 prepared it was unknown on which side the right 
 was; but the stronger the belief that the property 
 was within the territorial limits of the Dominion, 
 the clearer would be the argument in favor of the 
 surrender being a grant to the Crown in right of 
 the Dominion. 
 
 It was ar|.;ned that a cession of these lands was in effect 
 a conveyance to the Dominion Government of the whol*' 
 
 rights of the Indians, with consent of the Crown. That is 
 not the n.itural impoit of the lati^ju.iMe of the Treaty, which 
 purports to be from betiiimiim to end a transaction lietween 
 the Indians and the Crown; ,ind the surreinler is in snb- 
 stanci' made to the Crown. Ivseii if its lan^^na^e had Inieii 
 more lavor.ihle to th>' argument of the Donnnion upon this 
 point, it is ihnnd.intly clear that the C'onnnls.^ioners who 
 represented Her Majesty, whilst they haii full autlurity to 
 accept a surreniU r to ihi: Crowi\, had neither authority or 
 power to lake away from Ontario the interest which had 
 Ijeeii assigned to that I'rovince by the Imperial Statute ol 
 iSf.-. 
 
 And they say that 
 
 the Treaty leaves th<' Inili.tns no ri^jht whatever to the tindier 
 KiowiiiH upon the lands which they ^ave up, which is now 
 Inlly vested ill the Crown, all revenue^ derivable Ironi the 
 sale of such portions of it as are situate within the bounda- 
 ries of Dnt.u io beinn the property of that I'rovince. 
 
 Thus it is made perfectly clear that the Pro- 
 vincial Legislature Ims the right to interfere by 
 legislation to divest the Crown of (Town property 
 held in the name of the Crown; and this because 
 it has full legislative powers over, and the bene- 
 ficial interest in that property. 
 
 Now, I do not intend to discuss here the passages 
 to wliich my learned friend alluded in the reasons 
 given by certain of the Judges in the case of 
 Lenoir t. Ritcliic. Suffice it to say that, as my 
 friend concedeii, there was no decision which in 
 this case concludes the Court ; and to add to that 
 observation, iliat these dicta, being uliitvr, are also 
 diita which have special reference to another kind 
 (jf prerogati\ e ; which, itself, as I have stated in 
 the Court below, it is intended very shortly to 
 bring directly under the tliscussion of the tribu- 
 nals, -and were based on an argument into which 
 I am not now going to enter, that the position of 
 Queen's Counsel is not an office at all, but a title 
 of dignity or honor; that the Crown is fans 
 honoris ; and that no right or power exists, or can 
 be by the Legislature conferred upon the Lieuten- 
 ant-Governor to grant that dignity or honor. I may 
 point out, in the course of my argument, positions 
 which have been taken as to the legislative right, 
 even in that respect; but, as I have said, I have 
 no tlesire to ask your Lordships to indicate at this 
 time any opinion with reference to the particular 
 ijuestion of Queen's Clounsel, because that sub- 
 ject is about to come expressly before the Court ; 
 when the distinctions which are suggested, and 
 the special grounds which are conteiuled to be 
 applicable to the exercise of legislative or executive 
 power as to that office can be more fully discussed 
 and more accurately appreciated. 
 
 Now, I submit that the general result is 
 that the Provincial Legislature is, within its 
 domain, sovereign. Strange to say, I shall shew 
 your Lordships pr,sentlv that Mr. Dicey himself 
 uses that very word with reference to Colonial 
 Legislatures; though in other parts of his work 
 strongly combating the view that even a Legis- 
 lature such as that of France or Helgium can lie 
 called a sovereign Legislature. 'Ihe word is 
 susceptible, therefore, according to his view, of 
 diverse interpretatiims ; and is capable of being 
 both applied and rejected with reference to the 
 same constitution. 
 
 I submit that it is as my learned friend has put 
 it ; the Provinces, within their domain, practically 
 approach nearest of all to the position of inde- 
 pendent States; conditioned by two elements, one 
 as to their own law making power, which is sub- 
 ject to the exercise of the right of disallowance, 
 and the other as to Imperial legislation, in which 
 respect they are technically exposed, like all other 
 
3<5 
 
 colonies of Britain, to tlu: existing; power-- thoiif^li it 
 1)1' practically less anil less ilreained ot as bfinj^ an 
 actual and practical power -the existing power of 
 the rarliaiiient of the Ihiiteil Kingdom to [lass 
 legislation liinding their interests, or interfi;ring 
 with their views, or even repealing the Charters 
 lit their liberties. Subject to these two incidents 
 the rro\inces may be taken to apjiroach as nearly 
 as possible, with reference to those subject m.itttMs 
 on which they jinssess any legislatiNc powtr, the 
 position iif independent States. 
 
 Now, the le^islati\e and e.\ecuti\ e authorities are, 
 and must be, ci)-e\tensi\(' and complementary : it 
 is esential to eilicienm- tliat tin; Legislature sliould 
 be ,able to make, .and it does in f.ict possess express 
 and implied powers to make the l-lxecutixe efficient 
 for the discharge of all administrative duties; to 
 vest in the Executive many of those functions 
 which the Legisl.iture might, if it pleased, itself 
 perforin, l)ut which may i)e discharged, according 
 to our general notions of g(j\ernment, and of the 
 counlry'sgood, more litly by <!X(;cutive;iclion, th.in 
 by legislative \ote ; as for example, appointments 
 to office ; .'uul, as I contend, remissions of sentence. 
 It is obvious that a sovereign Legislature must 
 have sovereign power. It is cle.'ir liere that tiie 
 Mxecuti\e is itself a part of the Legisl.iture. It is 
 needful that the Legislature should ]i()ssess all the 
 essential elements of such a political institution ;is 
 a Province of Canada : that no other power should 
 be able to disappoint its action, or in effect to 
 nullify or impair its laws, by altering or abros^at- 
 ing decisions and steps taken under those laws, and 
 which are essential to give those laws their force. 
 If you decide that there rests, outside of that body 
 of the people wliich is permitted to make laws, 
 enforceable by such sanctions as within very wide 
 limitations it may chose to adopt- -if ytni decide, I 
 say, that there rests in some other community a 
 power to determine when, how, or by whom tho.se 
 sanctions shall be niodifu'd or waived ; then you 
 determine that they hav? in this p.irticular less than 
 that condition of independence, less than that 
 condition of eflicieiicy, less than that condition of 
 completeness in their political organization which 
 was intended by, and which is needed for the work- 
 ing of the Constitution. 
 
 My observation applies to all such prerogative 
 powers as belong or are germane to anv subjects 
 within the legislative competence of the I'rovince ; 
 not to one more than another ; not to one less than 
 another, 'rher<i is no doubt whatever that any 
 prerogati\e jiowercan be moulded bv the Imperi.d 
 Parliament ; and to the extent to which preroga- 
 tive powers are cognate to, or .affect those elements 
 of government and of legislation which .are vested 
 in the sole and exclusive power of this particular 
 portion of the Hritish people, to that extent the 
 power of regulating, the [)ower of abolishing, the 
 power of moidding the prerogative, also inheres in 
 this same portion of the people. 
 
 Before turning to some few further observations 
 on the specialties with reference to the prerogative 
 of pardon, I wish to advert very brieflv tf) one or 
 two of the points raised yesterday upon which I 
 have not yet touched. 
 
 One of my learned friend's suggestions was that 
 the Act gave in reference to prerogative only the 
 statutory powers. Those it gives expressly, just 
 because they were statutory. It was just because 
 such powers as had been expressly vested in the 
 Executive by statute might not be held to vest by 
 implication in the Executive of the Province under 
 
 the new organization, that express statutory pro- 
 vision was made indicating that all, even those 
 powers which had been gi\en to the head of the 
 Executive by statute, should so vest. liut, instead 
 of that beiiig an argument .against the transfer or 
 vesting of the ordinary prerogati\e powers, im- 
 pliedly belonging to anti customaril) exercised, in- 
 dependent of .any statutory grant, by the iCxecu- 
 tive, it is an argument tlu^ other way. While the 
 gener.d gr.int of legislative jiower invohed the 
 right to create and vest in appropriate otiicers all 
 proper executive power, the general grant of 
 executive power iiuolved the gr.ant ol .ill pt)wers 
 which had customarily ,ind impliedly p.i.ised as 
 part of the executive power. Thesi; then it was 
 not necessary to grant expressly. They were 
 implied. Those therefore that were gr.anted ex- 
 pressly were not all. They were aiidition.il. And 
 so, at another part of my learned friend's argu- 
 ment he almost seemeil to agree; because he said 
 that the Lieutenant-(iovernors had, under the H. N. 
 .\. .\ct, all such powers as were necessary to carry 
 out the ;uithori/e(l legislati(.)n of the Province. 
 I largely agree with him. Tiiey have, either 
 under the actual opiT.iiion of, or through legisla- 
 tion .authorized by the .\ct, all such powers. But 
 then if the Legisl.iture of the Province thinks that 
 any law alrt:,i(ly passed, the execution of which 
 would invoke action b)' the I'"xeciltive, is a bad 
 law, they have the right to re[)eal that law ; and 
 on the re])eal of that law, the Executive power of 
 the Lieutenant-Governor will be /yro tanto dimin- 
 ished ; he can no longer operate upon that subject 
 matter, because the Legislature has abolished it ; 
 therefore it can be administered no longer; and 
 thus the powers of the Executive are lessened. So 
 also they m.'iy be increased. There is no con- 
 sistent, there is no fe.isible iiUerpri;tation of the 
 .\ct, which shall refuse to the Legislature the same 
 power of moulding the prerogative, of gi\'ing ad- 
 dition.al st.itiitory prerogatives, and of diminishing 
 existing i xpress or implied prerogatives, as the 
 Imperial P.arliament has with reference to the pre- 
 rogativeof the Sf)vereign to-day ; alw.ays oliserving 
 th(^ limitations that it is of conrse such portion 
 only of the prerogative power as is germane to, as 
 belongs to, as is convenient in order to form and 
 complete the total mass of power, executive and 
 legislative, administrative and parliamentary, that 
 is placed under legislative control in the Province; 
 and that the power of .amending the Constitution 
 as to theofficeof Lieut(Miant-Cio\'ernor is withheld. 
 Then, mv learned friend said that this which has 
 been done here mav be done, not this wav, but in 
 some other an.l round.-ibout way. Me did not de- 
 fine exactly wh.it th(! circuit was, b\- what process 
 the Legislature might do the thing which he savs 
 they can do in sonn; other way, but cannot Ao in 
 this way ; but I take note of that acknowleMlgement. 
 I understand that the view of my learned friend is 
 that it can be done by creating in the same Act 
 which gives power to impose the sentence, some 
 power to remit or modifv it. The argument is 
 that the power to remit maj' be set up as part of 
 the provisions for punishment, but that it cannot 
 be done by a distinct .\ct. That is to say, that the 
 Legislature, if it passes an .Act creating a proper 
 prohibition, providing for the imposition, bv a 
 proper authority, of a particular maximum sen- 
 tence, and at the same time providing that all 
 should he subject to some modification of the 
 sentence imposed, to be made under certain 
 circumstances, after certain investigations, or at 
 
V 
 
 tluMliscri'lijii ul sonii; doliind autliorily -will !"• 
 acting wiihiii its rif,'ht : l)iit tint the Lcjjishituic, 
 alter liaviiiR ])assi:a its pi-oliinitory law, aiul pics- 
 cribuil iisseiuuncc, caniiDtby a st:p,ir,iie subsL-cpieiil 
 Act pro\ ide for lliai reinishioii, or coiiimiiiatiuii, 
 wliicli it could have arraiigv^d as part ot the Act 
 creating; liic prohihiiioii and prcscrihing the 
 seiitiinjc. 1 must say I cannot runiersiatul the 
 iorce ot tl)at view. It si;enis to niiuiniize the 
 power of the Lef^islature in an extraordinary way, 
 to suggest that, while they may, if they clioose, 
 repeal all their la^.s, re'-enac tlieni wiUi certain 
 conditions, or suljject to certain nunlitications, and 
 so produce this result, they cannot do it in the 
 plain, simple, and direct way. I sulmiit that is 
 by no means the spirit in which the legislati\c 
 powers of the Province are to be construetl. On 
 the contr.iry, the recognized spirit of intcrpret.i- 
 tion is just the opposite. 
 
 My learned friend acknowledged lairly that, in 
 the correspondence; and discuss.'oiis which have 
 from time to linn: taken place, in the first place, 
 n(jthing occurred which shoidd bind the C"ourt, 
 and, in the second place, no distinction w.is at- 
 tempted lo be drawn, such as is now brought for- 
 ward, between the two subjects of I'rovinci.il 
 offences, and ("anadian Criminal Law. On the 
 other hand, 1 think the fair inference to be drawn 
 from all this correspondence, as 1 shall shew your 
 Lordships very plainly in respect to some of the 
 later passages, is that what wasexclusi\ely present 
 to the minds of those engagi-d in the discussions 
 was Canadian Criminal Law. Although the lan- 
 guage used may be large, yet it was ("anadi.in 
 Criminal Law, and I'.irdons for crimes under 
 Canadian ('rimiu.il Law, w Inch alone were really in 
 debate. 
 
 Then my h^arned friend acknowledged that by a 
 report of the L,iw Magazine of Out^ljec it appeart;d 
 that the Local (ioverment there had been, from 
 time to time or hrd)itually, exercising some power 
 of commutation or remission ; but he said that he 
 thought it had been generally acquiesced in 
 here that there was no such power. I am not 
 instructed to make any such admission ; on the 
 contrary I believe that instances can be produced, 
 perhaps rare, but instances can be produced in 
 Ontario in which similar action has been taken, as 
 was taken in (.hiebec. But, as my learned friend 
 frankly agreed, neither action nor inaction can affect 
 the decision of this ipiestion, which comes free 
 from anything that could hamper the judgment of 
 the Court in a judicial derision now for the lirst 
 time invoked. 
 
 My learned friend then s;nd that in Lngland the 
 notion that pardon is a higli [irerogative is shown 
 to be still preserved, because its exercise is still 
 kept vested in one person, the Home Secretary. 
 I do not think that ob.servation is of force. The 
 Home Secretary is the appropriate responsible 
 ofiicer. It is clear that, in a country of moderate; 
 territorial dimensions, of very easy and rapid 
 communication by mail and telegraph between iis 
 different parts, ruled by one set of laws, where 
 neither distance nor circumstances create diHicidiy 
 in disposing, .almost at a moment's notice, of such 
 questions, it is clcnr that there is no ground of 
 convenience for a distribution of this prerogative, 
 for the creation of divers officers to be entrusted 
 with this power, to be exercised in diflerent 
 parts of P2ngland. It is clear on the contrary 
 that, for laws which are passed by and which 
 
 allect the \\hole boily of the Ijigli.sli people, lor 
 the administration of whiidi laws responsible 
 ollicirs are to be appointed, there ate coiueni- 
 eiices in tinity of .iduiinistration It would 
 be incoiivenieiit that 'here; should be one per- 
 son with (jue tu)tion as to remissions for Wales, 
 ■inoiher pers(jn with perh.ips anotlier notion :is to 
 remissions lor the south, and yet another for the 
 north ol Lngland ; and th.ii the executive action 
 of each, in a m.itter in which discietion cert.ainly 
 pl.iys a great part, should be criticized not merely 
 as the exercise of this prerogative is now criticized, 
 but criticizeil with the adilitional embarrassment 
 produced by contra;. ts between the action of the 
 different ollictns. Unity in that respect is also 
 important, because )ou have unity in all other 
 reipufcts ; you have one jiolitical entity, one set of 
 laws .itlecling .ill, and } ^u have, ;ind ought to have 
 the rcsponsibibiy of one man tor the exercise of 
 ot.e preiog.itixe to tht: people who make .iiul who 
 live under the laws in respect of which th.it prero- 
 gative is to be exercised. As for Irel.ind, tluiugh 
 the laws ;iie said to be the same, )-et their admin- 
 istr.ition, including that of the prerogative of 
 Ii.udou, is vested not in the Home but in the Irish 
 (illice. With us all these .irguments work just the 
 other way. 
 
 Then my learned friend, Mr. Lefroy, referred to 
 Mr. Dicey as to the nature of the prerogative ; and 
 while I acknowledge that he has made the obser- 
 vations (pioted by my learned frieiul, yet I do not 
 need to go beyond Mr. Hicey's own wurk for the 
 est;iblishment of the fund;imeiit;il principle which 
 I in\ ite your Lordships to lay down, and by which 
 the decision of this case is, as I submit, governed. 
 .And perh;i]is, as ni)' learned friends lay so great 
 stress on Mr. Oicey, it may be well to quote him 
 more lully ai'd exclusively th.'in else I might be 
 disjiosed to do. 
 
 Without touching .it this moment upon his 
 comments upon Blackstone's view, I wish to refer 
 to a few pages in which material observations are 
 m;ide 
 
 I refer to pages 59 and 60 ; — 
 
 DoniiiiL's have at times been inaiiitaiiicd wliirh wciit very 
 lU'ai" to (It'iiyinn the liglil of I'arli.uia'iit kj toucli tlio pre- 
 lotj.ilivr' ; 
 
 and he points out that at this day (no niafter how- 
 great the powers, as for example those connected 
 with the right of making treaties, and the right 
 of making war .and declaring peace, which he 
 specifies as being left, by the law, in the hands of 
 the Crown, and as being exercised, in fact, by the 
 executive Cxovernment) 
 
 No luodcrii lauycr would maintain ill. U tlusc powers. or any 
 oiliir liiaiirh of Royal aiuhoriiy, cannot bu regulated or 
 abnlislii'<l by .\ct of I'arlianicnl. 
 
 That is the present constitutional and legal 
 doctrine upon even the most precious and the 
 highest prerogatives. 
 
 Then, with reference to his distinction between 
 the constitution of a country like that of Canada, 
 and the British constitution, we have to deal, not 
 with the legal view which at one stage and mainly 
 he expounds, but with the political view which 
 the Court here, as the interpreter of a ])olitical 
 constitution, has necessarily to adopt. I refer to 
 page 66, in which he points out th;it the word 
 "Sovereignty " is sometimes employed in a politi- 
 cal, rather than in a strictly legal sense. 
 
 Tbat body is " politirally " sovereign or supreme in a State 
 the will of which is ultimately obeyed by the citizens of the 
 
32 
 
 Slilliv 111 lliis siMisr iif the wmd tlic ilcilnrs (if I'.iimi Hiii;iiii 
 ni:iy l)c s.iiil 1(1 lie, iii>;cili( I wall ilu- iKuvii .lud I.dKK, (H 
 pcrhaiis in slri<'t iicnii.icy imlipi ndcnlly nf the Kini; arid ilii! 
 I't'i rs, tlio liody in wlii( h sdvciiiwn powi'T is vistt-d. I'di . as 
 tilings now Mand, llic will dl tlic i IccKiraK; and cirtainly iil 
 the clorlDr.Uf in r.ondiinalinn willi llic I.nrds and tlic Ckiwii 
 is snic nllini.itcly In picvail (in dl snli|(i'ls to be dctcrnipi'd 
 by till- IJiitisii (lovcrnincnl. 'llic niallir indiiii in.iy lie 
 lanicd a little fill tlicr, and we may assert that the ai iaii^;e- 
 iiii^iits of llie ((institiilion .ire now sncli as to ensure tliai the 
 will of tlie electors shall, liy regular .ind coiistitiilion.il means, 
 alw.ivs in the end assert itself as the predominant iiillmiice 
 ill the country. 
 
 Then, at pa^e 77 lie indicates liis vinw of the 
 system of representative (Jovernnu'iit, and ils 
 effect. 
 
 All that it is here noctissary to insist on is that the essential 
 property of representative tlovi riMnent is to prodiuc co- 
 incidence between the wishes of tlu; Sovereign and the 
 wishes of the subjects ; to lllak(^ in short, the two liiiiit.ilions 
 on the exi^rcise of Sovereimiiy absolutely co-iiicideiit. I'his, 
 which is true in its iiie.isiire of all re,il repi i-,ent,itive dov- 
 er.iineiit, applies with special truth to the ICnulish House of 
 Comiiions, 
 
 At pages S3 and S.j he refers to the possibility 
 of framing tiie law of the I'liiKlish ccmstitiition in 
 writing, enacted in the form of a constitutional 
 code, and speaks of the Helgian constitution in 
 the terms to which 1 referred yesterday. 
 
 I'age 103 ; — 
 
 The Colonial I.e>;islatures. in short, are within their own 
 spheres copies of the Imperial I'.irli.inunt. I'hey are within 
 thtdr own spheres S(ivereit;n Imdies; liut their fri < liom of 
 action is controlled by their snliordiiialion to the Parliament 
 of Great Britain. 
 
 At page 108 he discusses 
 
 The nature and extent of the control exerted by tireat Hi itain 
 over Colonial legislation, 
 
 and indicates that 
 
 the tendency, in the tirsl place, of the Imperial Ciovt^rnment 
 is. as a matter of policy, to interfere less and less with the 
 action of the Colonies, whether in the w.iy of law-m.ikinn or 
 otherwise. 
 
 Then at page 131, he gives Ids dt;finition of a 
 Federal State ; — 
 
 .■\ I-'ederal State is a polilic.il contrivance intended to 
 reconcile national unity .iiid powci with the maiiiienanci^ of 
 "State rights," The end .liiiied at fix<■^^ the essenli.d 
 character of I''eder<ilisiii, bcir llie method by which I-'edei 
 alisin attempts to reccncile the .ipp.irenily incoiisistenlclaimr 
 of national sovereinnty and of State sovereignty consists of 
 the forniation of a ( onslitntion under which the ordinary 
 powers of Sovereignty are el.diorately divided betweiMi the 
 common or national (Government and the sep.ii.ite Slates, 
 
 The details of this division v.iiv iiii(kr every difterent 
 Federal constitution, but the general principle on which it 
 should rest is obvious, Wliatever concerns ihe nation as a 
 whole should be placed under the control of the nation.il 
 Government. .Ml matteis which are not primarily of coiii- 
 iiion interest should remain in the hands of the several 
 States. 
 
 At page 160 he refers to a most important 
 element of Federalism : — 
 
 Kederalism, lastly, means legalism— the iiredoininance of 
 the judiciary in the consiitiition -the prevalence of a spirit 
 of legality among the peolli(^ 
 
 That in a confc'deration like thi^ I'nited S'.'Ues the Conns 
 become the pivot on which the coiistitu' angements 
 
 of the country turn is obvious, Soverei,. , lodged in a 
 body which rarely exerts its authority, and has iso to speak 1 
 only a potential existenci' ; no Legislature througbout the 
 land is more than a subordinate law making body capable in 
 strictness of enacting nothing but by-laws; tbopoweis of the 
 executive are again limited by the consli'Ution ; the inter- 
 preters of the constitution are the Judges. The bench, there- 
 fore, can and ninst determine the limits to the autheritv both 
 of the Government and of the Legislature ; their decision is 
 without appeal ; the coiise(pience follows that the Bench of 
 Judges is not only the guardian but also the master of the 
 constitution. Nothing imts in a stronger light the inevitable 
 connection between Lederalism and the prominent position 
 of the judicial body than the history of modern Switzerland, 
 
 wliich history he sketches. Then he comments 
 upon its records. 
 
 I have re.id the last pass.ige, ln^caiise il sPiMlls to 
 nie th.it we must rc.ili/i!, tii.tt tlie discussion of this 
 case forces us to re,iii/e, the peculiar character o| 
 that juristliction, which tiie Court is now called 
 upon to e,\ert. We musL rcili/e the view tli.'it it is 
 not by an ,-ippeal to l.iws only, it is not by an ap- 
 peal to wii.it is set down in codes, it is not by an 
 appeal to judicial decisions, it is not by ;in appeal 
 to that portion of our constitution which is em- 
 Ijoilied in formal and statute l.f ■, but it is by a 
 reference to the whole consiitution, to the conven- 
 tions of the constitution, to the principles of the 
 constitution, to those jiolitical elements which 1 am 
 endeavoring to m.ike clear, it is thus oidy that we 
 can place ourselves in a position to dt-termine the 
 true meaning of the consiitution, and the range of 
 powers of the one, and of the other, of the several 
 law-making bodii's, or political organizations which 
 exist under that ccinsiitution. This is the reason 
 why this argument jiroceeds in ways unaccustomed 
 to the ("ouris : it is on this account th.at I am 
 obliged to ask \oiir Lordships to look into the 
 principle of the British Constitution, and to settle 
 the interpretation of that phrase as applied \o 
 Canada and the Provinces in the .Vet, and therefore 
 to enter into a dom.iin which is more (jrdinarily 
 that of the statesman and the politician th.ui of 
 the law\er, the jurist, or the judge. J5iit still so 
 must it be. Our constitution is not wholly writ- 
 ten ; it is one which incorpor.'ites, by a phrase or 
 two, that vast aggregate of unwritten conventiins, 
 codes, ethics, views, understandings, customs 
 which are embodied in tlu; phrase, "The Hritish 
 Cfjnstitiition " ; and these we must consider; the 
 essential principle we must ascertain ; by that 
 essemi.d principle we must be gtnerned, when we 
 come to settle this question of the extent ot the 
 executive and of the legislative powers which are 
 vested in any one of the political bodies existent 
 under the Act. 
 
 Then at page 329 Dicey speaks of "The respon- 
 sibility of .Ministers," and points out how much 
 it means, and the extent to which it affects the 
 prerogative of the Crown 
 
 .\t page 347 he speaks of " The di.scretionary 
 powers of the Ctovernment," and shows that the 
 doing of numerous most important acts, as for 
 instance, the dissolution and con\'ocation of Tar- 
 liament, the making of peace or war, tfie creating 
 of Peers, th<' dismissal of a Minister from office, 
 or the nppointmtMit of his successor, lies, leg;illy, 
 at any rate, within the discretion of the Crown. 
 
 They belong, therefore, to the discrelienary anthoriiy of 
 the Government. This authoritv may no doubt origiiiaie in 
 I'arliamentary enactments, and in .1 limited nnmb'jr of cases 
 actually does so originate. 
 
 And he gives the case of the Naturalization Act. 
 
 With the exiTcise, however, of such discretion as is con- 
 ferred on the Crown or its scrv.ints by Parli,inieiitarv eii.ici- 
 ments we need hardiv conctM'ii onrsidves. The nuxie in 
 which such discrmion is 10 be exercised is (or may be) more 
 or less clearly definrd by the .Act itself, and is often so closeK 
 limited as in reality to become the subject 'if legal decision, 
 and thus pass from the domain of consiitutioiial moralitv into 
 th.it of law properly so calle<i. The discietionarv authority 
 of the Crown originates generallv. not in .Act of Parliament, 
 but in ihe " prerogative," a term which b.as caused more per- 
 plexity to students than any other expression referring to the 
 constitution. The " prerogative " appears to be both 
 historically, and as a matter of actii.d fact, nothing else than 
 the residue of discretionarv or arbitrarv authority, which at 
 any given time is legally left in the hands of the Crown. The 
 King was originally in truth what he still is in name, " the 
 
^^ 
 
 Sdvciiinii." or ifiiiK sliirily (In " mivitimkii, ' ill tlif snisc in 
 which luiists iisr ihai Wdid, at any i.ili' by tar ilic most 
 powci fill part of till' soviMi'iKii power. 
 
 ile refers to the trial, in ly^ji, nt Mr. l<c■(;v^^-i, 
 under the order ol tlic House of Commons and 
 states ; — 
 
 The pcuvci of llir I'lovn w.i-. aiilri ior to th.it of ilic lloiisf 
 of Coiiiinnii^. I'liiMi ilic liiiir of the Not man C'oiii|iic>t ilowii 
 to tlic Kcvojiiiion of iiiNS. tlic down po^scs-aMl In rr.iliiy 
 III. my of the .iltiiluiti'S of Soviiiinnty. I'lie jMiioij.iiivi' i-i 
 the II. mil' for the rrin.iinin>; poitioii of ihr Crown's ori);in,il 
 authority, .mil is tlii-icforc, .is .ilrr.idy pointed out. tlii' n.iiiie 
 for the lesidiie of ili ,ireiion.irv power left at .my nioiniiit in 
 the li. mils of tile Crown, wlieihei such power hi' ill f.iil ex- 
 ercised liy the niieeii herself or liv llc'r Ministers. lAcry 
 .\et which the exei'iiiivc ("lovei niiu nt c.iii l.iwfillly do with- 
 out the authority of .ui .\ci of I'.irli.mient is done in virtue ol 
 this preioi.;,iiivi'. If, therefore, we omit frmii view las we 
 I'onveiiieiitlv in.iy ilo) powers confiMred on tile Crown or its 
 serv.mts liy I'.iili.iment.ii v en.ictnients, .is for e\.iinpli- under 
 an alien Aei, we iii.iy use the term. " pri'roi;.ilive " .is e.piiv.e 
 lent to the <lisrretion.iry antliority of the ICxi'Ciitive, .md then 
 lay down tliit the convetitidiis of the <-oiistitiition are in the 
 main preri'|)is for deterininini; the mode and spirit in which 
 the preroij.itive is lo he e-ii'irised. or wli.u is re. illy the saim; 
 thmi;. for lixiiis; the ni.inni r in which ,iiiy ir.iii^aciioii which 
 can le^;.lllv be ilono in virtue of tlie Koy.il pr<'rot;.iiive isiich 
 as the ni.ikiii)' of war or the declar.itioii of pe.icei onuht to be 
 carried on!. This statement holds >;ood. it shnnld he noted, 
 of all the discieiion.il y powers exercised hv the I'^xeciitive, 
 otherwisi! ill. in iiiidii sl.itiitoiy .inthoril v ; it applies to .\cts 
 really doi.e by tli>' niieeii herself in accordance with Her 
 personal wishes, to trans.ictions (which ,iri' of more freipieiit 
 ornirrcnce than model n constitntioiialists are disposed to 
 adinill in wliii'h both the (.Jiieen and Her MinistL'rs take a 
 H'al part, and also to that larije ,ind const, mily increasinn 
 nnniher of proceediinjs which, tlioii;;h c.uried out in the 
 yneen's name, :ire in triitli wholly arts of the Ministry. The 
 ronveiilions of the constitution are in short, rules inlimded to 
 rennlale tlii^ exercise of the whole of the rem. lining <liscre- 
 tionary jioweis of the Crown, whether these powers are 
 exercised by the Queen h'Tself or by the Ministry. 
 
 Then he f,'ives a number of instances, and pro- 
 ceeds : — 
 
 The result follows, that the conventions of the ronslittilion 
 looked at as a whole are ciistoms. or iiiidi rstaiidiiiKs as to 
 the mode in which the sever, il members of the sov(Meinii 
 lesjislalive boiiy, which, as yon will reinemher. is the '• KiiiK 
 in I'arliaiiKMit." should eacli exercise their discri'tionary 
 authority, whether it he termed the preroy.itive of the Crown 
 or the privileges of I'.irli.imcnt. Since, however, by far the 
 most nnmeroiis and important of oiir constitutional imder- 
 sUndiii^js refer at bottom to the exercise of the prero^jativiN 
 it will conduce to brevitv and clearness if vmi treat the con- 
 ventions of the constitution, as I shall do for the rest of this 
 lecture, as rules or customs deteriniiiiiiB; the mode in which 
 the discretionary power of the ICxe' ntive. or in teclmic.il 
 lant'naKe the prerogative, oiii;ht (/.<•., is t'spected by the 
 nation) lo be employed. 
 
 Haviiit; ascertained that the conventions of the constitu- 
 tion are (in the main), rules for deterinir.inj; the exercise of 
 the prerogative, we iii.iv carry onr .malysis of their ch.iracter 
 a stop further. Tliev have all one nllimale objiM't. Their 
 end is to secure that P.irliament or the Cahiiu". which is 
 indirectly appointed by I'.irlianient, shall in the Iom; rim jjive 
 effect to t'.ui will of that power which in modern Knuland is 
 tlie true political sovereiuii of the Staie — the ina|ority of the 
 electors, or (to use popular tlnnmli not quite accurate laii- 
 BiiaKei the nation. .\t this point comes into view the full 
 importance of tlu^ distinction insisteil upon in a former lec- 
 ture between ' le^al " soveieignty and "political" sove- 
 reignty. 
 
 He points out the le^al sovereignty of Parlia- 
 ment and goes on : — 
 
 But, if I'.iiliament be in the eye of tlii! law a supreme 
 LeKislatiire. the essence of representative Ciovernnient is, 
 that the I-cKislature should represent or t;ive effect to the 
 will ot the political sovereign, I mean of the electoral body, 
 or of the n.ition. 
 
 At page 355 :— 
 
 The conventions of the constitution now consist of customs 
 which (whatever their historical origin) are at the present 
 day maintained for the sake of tnsnrim; the supremacy of 
 the House of Commons, and ultimately, thrnngh the elective 
 House of Commons, of the nation. CHw modern code of con- 
 stitutional morality secures, though in a louiul-about way. 
 
 what is c.illcd .ibio.iil the " soveiei^jiity of the people " Th.it 
 this is so becomes .ipp.innt if we ex.imine into the i-llect of 
 one or two anions the le.iijint; .irticles of this code. Thi' rule 
 tli.it the powers of the Crown must be exercised throiiuh 
 Ministers who ,iic meinheis of oni' or other Mouse of I'arli.i- 
 liieiit .mil who I onim.ind ll;e conli.leiice ol the House of 
 (lommons re, illy me. ins ih.ii the eleciive poi lion of the I.e^is- 
 l.iliire ill etfecl, thoiinh by an indirect process, appoints thi^ 
 exeeniive Ciovernment ; ,ind. fmtlier. lli.it the Crown, or the 
 Ministry, imisl iiltiin.uely c.irry out, or at anv r. He not con- 
 tr.iveiie. the wishes of the Hoiis" of Commons, lint as the 
 process of representation is noiliin>; else di.in a mode liy 
 which the will of tlw represent. itive body or House of Com- 
 mons is made to coincide with the will of the n.ition, it follows 
 that a rule which ^;ives the uppoinimeiii .mil control of the 
 ( >o\'rrninent m.iinlv lo (he Honsi- of Commons is ,it bottom .1 
 rule which ^ives the clecijon .md iiltim.ite control of the 
 executive lo the n.ition. 
 
 .\t page yi() :- 
 
 Neither the Crown nor any serv.mt of the Caowii ever 
 refuses obedience to ihr i;r.ind piincipli 
 
 l)o you want tlio principle of ihc Hrilish con- 
 stiution ? Here is where 1 think Mr. Dicey 
 states it :- 
 
 the i^raud ininciple which, as we liavi' seen, underlies all 
 the conveniioiMl precepts of the constitution, namely, that 
 government innst be cirried on in accord.ince with the will 
 of the House of Coininons and nltini.ilely with I he will of the 
 n.ition .is expressed throiii^h that House. This principle is 
 not a l.iw ; it is not to be found in the st.itute book ; nor is it 
 a maxim of common law; it will not be enforced by any 
 ordinarv jiulici.il body. Why then has the jirinciple itself, 
 as ,ilso have ei rtain eonventicns or iinderstandinns which 
 are closely connected with it, the force of law' 
 
 .Vnd he proceeds to state wiiy it has the force of 
 law : but there is the principle. 
 
 .\t page j8i he discusses a very interesting 
 (piestion, of which marked examples are to be 
 found in late davs, some in ]"".ngland, and some in 
 Canada, both in Provincial and in IV)minion 
 affairs : — 
 
 What is the reason why no one can describe with pre- 
 cision the limits to the influence on the conduct of public 
 attairs which may riyhtlv be exercised bv the reikjiiint; 
 monarch, and how does it happen th.it ('ieori;e the Third 
 and even Cieorf,'e the l''oiirth each made his personal will or 
 caprice tell on the policy of the nation in a very difloreiU 
 way and det;riM; from that in which Uiieen \'ictoria has ever 
 attempted to exercise personal influence over matters of 
 static ? 
 
 The answer in ^.'oneral terms to these anil the like enquiries 
 is, that the one es.^enii.il principle of the constitnlion is 
 obedience by all persons lo the deliberately expressed will 
 of the I louse of Commons in the lirst instance. ,ind ultimately 
 to the will of the nation as expressed throntih Parliament. 
 The conventional coile of political morality is, as already 
 poiiueii out, merely a l)ody of maxims meaiU to secure 
 respect for this principle. 
 
 Then he goes on to discuss it. 
 
 \l page ^(Sj he gi\es a very interesting di.scussion 
 of what the revelations of political memoirs and 
 the obser\ation of modern public life make clear 
 as to our constitution : — 
 
 The first is, that while every Act of State is done in the 
 name of the Crown, the real executive noyernment of Eng- 
 land is the Cabinet. The second is, that though the Crown 
 has no real concern in a vast number of the transactions 
 which take place under the Koyal name, no one of yueen 
 Victoria's predecessors, nor it may be presumed yiiemi Vic- 
 toria herself, has ever acted upon or allected to act upon the 
 maxim originated by Thiers, that "the King reigns but does 
 not govern." 
 
 And he proceeds to discuss ail that : and he 
 points out that the degree of influence which, suh 
 rosa, 30 to speak, without publicity at any rate, 
 the reigning monarch, under our constitution, may 
 e.xercise, is a vague, fluctuating, and unknown 
 quantity ; partly, 1 sujipose, because it is exer- 
 cised " under the rose," partly because no man 
 can tell the actual extent to which in any case the 
 
.14 
 
 nation wisli(!s ili.'ii liu! personal inflntMU'- of \\u' 
 Sovereign slionid wcIkIi lint, he jioinis out tli.it 
 in old timen personal views much niort^ prevailed ; 
 and he cites, as showing the rharacters and cus- 
 toms of thf! country, a lu-,iilions incident which 
 pertains to this very prerojjative of I'ardon: 
 
 In small things as much as In great oik- cm discern a 
 tendency to transfer t(i the Cahniet prnvers onee aetiiallv 
 exercised hv llie Kiiii;. Tlii! -ciMu- lielweeii Ji.Uiir Deans 
 and (JuecMi ( .iliiline is a true picture nl a srene wliieli 
 nii(jlit liave taken pl.iee niidcr ' li'iirtfetlie Second, 'ionrue 
 tlie Thnd's tirniiiess secured !lie exeeiitimi of Dr. Dodd. 
 At tlu- pri'sei't day llie riniit u' pardon lpe|oM^;s in l.ict to 
 the Home Seiretarv. Ainoilein je.iiiie Deans would lie 
 rclerred to the Home ' mice ; the ipie>lion whether a 
 popular preaeher shonld pay the penalty ot hi?, crune 
 w(ndd now, with no ureal .idvantaKc to tiic country, lie 
 answereil liy the fabinel. 
 
 Then nt page .^oo he asks: — 
 
 What, again, is the real eltect produced by I he >urvival 
 of prerogative powers .' 
 
 And .ifter i^ointinf,' nut that a very considerable 
 amount of intlnence is f^iven to, or rein,-iins with 
 the monarch, in ccnisequenco of acts being done in 
 the name oi ilu^ monarch, he yet shows th.it it is far 
 more important to notice the way in which the 
 survival of the prerogative affects the position of the 
 Cabinat. 
 
 It leaves in the hands ot the I'renner amt his colleaKUCs. 
 large powers which can lie exercised and eonstantly 
 are exercised tree from parliamentary control. This 
 is specially the '"ase in all toreiuii affairs. r.irliament 
 may censuiea Minister for nnsconduct in regard to the 
 foreign policy of the country. lUU a treaty made bv the 
 Crown, or in fact by the Cabinet, is valid without the 
 authority or sanction of Parliament : and it is even open 
 to ([uestion whether the treaty making power of the 
 Executive might not in <ome cases over-ride th.e law of 
 the lami. It is not Parliament, hut the Ministry, who 
 direct the diplomacy ut the n.itiun. 
 
 He refers to the restrictions placed, in the 
 United States, upon the power, and adds: — 
 
 The survival of the prerogative, conferring, as it does, 
 wide di-icretionary authority upon the Cabinet, involves a 
 couscouence which constantly escapes attention. It im- 
 mensely iucre.ises the .luthoritv ot the House of Com- 
 mons, and ultimately ot the constituencies by which that 
 House is returned. 
 
 At page 30,^ he cites the well-known instai ce in 
 which Mr. Gladstone, after the House of Lords had 
 declined to agree to the legislation which had 
 been carrietl through the House of Commons with 
 reference to the reorganization of the Hritish army, 
 accomplished his measure, f)r enforced their assent, 
 through the Royal Warrant al)olishing purchase. 
 But, that, of course, was done in the name of the 
 Crown, by the Cabinet. 
 
 If government by Parliament is over transformed into 
 government by the House of Connnons. the transtorma- 
 tion will, it may bo conjectured, be effected by use of 
 the prerogatives ot the Crown. 
 
 At page 3oC>, again, he speaks of the two guiding 
 principles of the law of the constitution, which he 
 distinguishes from the conventions of the consti- 
 tution. The first is the sovereignty of T'nrliament, 
 
 which means in effect the gradual transfer of power from 
 the Crown to a body which has come more and more to 
 represent the nation. This curious process, by which the 
 personal authority of the King lias been turned into the 
 the Sovereignty of the King in Parliament, has had two 
 effects ; it has put an end to the arbitrary powers of the 
 monarch ; it has preserved intact and undiminished the 
 supreme authority of the State. 
 
 And the second principle is the authority of law. 
 
 I have read your Lordships these extracts in 
 
 order to remove, even by the use of my learned 
 
 fi lead's own weapon, the mystery and the magic in 
 which, when one deals with this iinestion of pre- 
 rcgativf, it is attempted to enshroud it. I f we are 
 to he go\-erned in this I'rovini-e, acconiing to the 
 principle of the iiritisli ('onslitutioii, if we are hero 
 to exercise those powers of representativt! govern- 
 uuMit, which, 1 thiid^ 1 li.ive shown from ni) le.irncd 
 fri(;n(rs,iuthorily,end)ody lhetundaulenl;llplincil)l(• 
 of the Hritish Constitution, as interpreted in our 
 d,i\ , tluni the application of th.it rule necessarily, I 
 suiimit, destroys the argument of my learned 
 friend upon prerog.itive in the general, as well as 
 in the particnl.ir point on which the mr'" part of 
 this discussion turns, that of pardon. 
 
 .\s 1 ol).ser\f(l yesterd.iy, had this statute been 
 differently framed, a very grave ([in-stion might 
 h,i\e arisen as to the powt^r of pardon for crimes 
 .igiinst C,,inadi.iu law; because tln^'e is, with 
 rctference to those departim^nts of legislati\'e power 
 which include this subject, a p.irtilion of powers ; 
 and it woidd b(^ necessary to determine on which 
 side of the line the subject lidl, in view of that par- 
 tition. Vini find the legislative power as to 
 laws .illecting property and civil rights, and the 
 enlorcemeut thereof by penal sanctions, given to 
 the local Legislatures; and that as to criminal law- 
 given to the central Legislature ; you find also that 
 curious and illogicd division of "the adminis- 
 tr.ition of justii (■ " which was fully discussed in the 
 Oiieen w W'.ison. 
 
 If the administration of justice in its entirety, in 
 its largest sense, including the m.iking of tlu^ laws 
 which indicate what the justice of the country 
 shall be, as w(dl as the carrying out of those laws, 
 if the whole subject in that largest sense, had 
 been in tl)e h.inds of one or other of the Legisl.a- 
 tiirt!s, this pow<'r, lieing a part of it, woidd have 
 bcdonged in its entirety to that Legislature 
 There being a partition, and a partition not logi- 
 cally defensible, a question e.xists, and may, some 
 day perhaps, arise, as to the side on which the 
 power falls with reference to the Canadian ("rimi- 
 nal Law. Much is to be said in favor of the 
 Dominion, as the maker of Criininal laws ; mort;, 
 I dare say, in favor of the l)omini:)n, than in 
 favor of the Province ; but something also might 
 be said in favor of the Province. We have no 
 concern with that here and now. This .\ct, as I 
 h;i\e shown, has nothing to do with pardon for a 
 Canadian sentence, l(n' a sentence imposed under 
 any Act which might be validly passed by the 
 Canadian Parliament. This Act has to do only 
 with sentences which are passed under the 
 authority, either of a Provincial law, or of legis- 
 lation which the Provincial Legislature can repeal 
 or amend, and which is, therefore, practically 
 Provincial legislation ; in respect of which it may 
 be said that the Province has created, or per- 
 mitted the continuance of the law creating the 
 offence; in which the Province has created or 
 permitted the continuance of the law creating the 
 penalty: in which the Province can abolish or 
 alter tlie law creating the offence or the penalty ; 
 in which the Province can pass an Act of Cirace, 
 or an Act making the law inapplicable to any 
 particidar offender, either before or after convic- 
 tion ; in which therefore, as I contend, the Pro- 
 vince can legislatively either remit or commute, 
 or authorize the executive remission or commuta- 
 tion of what I may call its own sentence. 
 
 This is a local and private matter ; it is a mat- 
 ter, c,v coiicr.sis, affecting I^rovincial, as distin- 
 
35 
 
 guisheil fniin ('aiuulian or Iiniierial iritf rests: it 
 cuiict'rns only the Kimctioii, file iiuicluiicry crfiitcu 
 by th(! I'rovincf, tor stfcuriiin the ellicitMit oliserv- 
 ance ut laws rroviiicial Id their nature, extending 
 only to the hounds of the I'rosince, aftei-.tinK oidy 
 the intt^rests ol the I 'ro\ iiu e, made lor the jieoplc 
 uithin the Province, made to lurtherihe views ol 
 the I'ruvinee, and mixlilii'd, ri'jiealed, changed, en- 
 forted, or on occasion remitted, in the interests 
 (jl tlie people- of the l'ro\inte It is that body of 
 Her Majest\s subjects utinposing the peoph; ot 
 Ontario which c.i caiues.'tls, is alone iiitircsted in 
 these laws ; in their enforcement ; and in their 
 remission. That beinj^ so, 1 say, tirst of all, that it 
 is natural and reasonable that the administration 
 and execution of these laws, in all their respects 
 (including the very important (piestion, whether in 
 any particular case subsi.intial justice demaiuls 
 that a sentence should be enforced to the end, or 
 will be best served by its being remitted or 
 commuted), being exclusively I'rovincial, slioidd 
 be dealt with exclusively by I'rovincial authorit\ . 
 Not merely is that reasonable, but it is essential , 
 it is vital ; because, if we admit, as we must admit, 
 that laws require sanctions in ortler that they may 
 beconu! more than forms ;ind shams , if we admit, 
 as we must ailmit, that that view is noi merely 
 well foundetl, but is exjiressly recognized by the 
 Constitutional .\ct ; if we adtuit, as we must .admit, 
 that the power of absolving from the sentence of 
 the law may, if improperly or too freely exercised, 
 and will, in proportion to the extent to which it is 
 so exercised, destroy or mmish the eliicacy of the 
 law, then we must agree that it is not merely con- 
 venient, not merely appr(jpriate, not merely 
 natnrrd and reasonable that the power should 
 belong to that political entity w hich has exclusive 
 control over all other aspects of the l.iw, but th.at 
 it is vital and essential that it should so belong. 
 
 Suppose a state of things in which the opiuion 
 of the larger community, reiiresented in the I'arlia- 
 ment of Canada, differs from the opinion of that 
 smaller community which is represented in a 
 Provincial Legislature. Take a small Province, 
 take Prince P'dward Island ; take e\eii a large one, 
 this Province of Ontario; suppose that different 
 ■otions, rightly or wrongly, prevail at Ottawa, from 
 tiiose prevailing at Charlottetown orToronto.as to 
 making a particular ac;t an offence at all, or as to 
 punishing that offence to a particular degree. 
 Suppose thai the Canadian P.irliament. contrrilling 
 the Canadian Ministr\' and directing the Govern- 
 ment of Canada, is of the opinion that a loc.d law- 
 is a bad law, or that a local sentence prescribed 
 under that law is a barbarous sentence ; that there 
 should be no such prohibition as the local law 
 makes, nor any such sentenci' as the local law 
 allows ; or that in any particular case the sentence 
 awarded is too severe. Under these conceivable 
 conditions you are asked toalistract from the local 
 authorities the power of practically deciding whet her 
 their law shall remain in force, and to give that 
 power to that other and different government of 
 that other and different entity, the Dominion of 
 Canada, whose public opinion differs from the 
 public opinion of the I'rovince concerned. You 
 are therefore asked to interfere in a most serious 
 degree with the principle of local r.elf-government 
 in those subjecis which have been assigned as 
 solely and exclusively within the competence of 
 the Provincial Legislature. 
 
 Now what is pardon ? I think it may be properly 
 stated that pardon is a part of that whole 
 
 ct)mprised in "the uriininistration of justice " 
 1 have sai J that, in the large sense in which I here 
 use that term, 1 include legislation with reference 
 to the criminal law , and 1 therelore include a 
 divided subject I'ardon is an .\ct which is de- 
 signeti to " make the piini-.hment (it the crime"; 
 that is the subsianti.'d ground for tlit! commutation, 
 or remission of a sentence It is not in the slight- 
 est lU'gree the exerci.ie of caprice. It is not to be 
 Used according to the ipiatitity or quality of the 
 milk of human kindness, to which one of my 
 learned (rieiuls reierrecl, which may be existing in 
 the wielder for the moment ol the power, lie is 
 bound to consider, and he ceriainK has oftentimes, 
 as some of us know, a most p.iinlul t.isk in weighing 
 the general effect of his decision. What is mis- 
 called mercy to the individual may be gross 
 injustice to the State lie must consider the eflect 
 of interfert:nc(! with the sentencit of the C?ourt ; he 
 must ascertain the general principles upon which 
 he should act ; and apply them to each jiarticular 
 case. He must, as far as possible, do those things 
 with reference to the (piestion which comes before 
 him, which tin; ollicers of the law would have done, 
 had they, when they acted, been possessed of all 
 th(! circumstances. 
 
 It is just bt'cause it is impossible to meet, in 
 advance, ,dl tlilliculties, to foresee all contingencies, 
 to ensure that all the iiateri.ds shall be produced 
 before sentence, to avoid all possibility of mistake ; 
 and also because it is needful to consider subse- 
 cjuent events which may in practice alter and affect 
 the severity of the sentence, and which may, 
 therefore, call for a nominal alteration in the 
 sentence in order to preserve its real eharacter ; it 
 is because and on account of all these considera- 
 tions, that the power of commutation or remission 
 is set up ; and it is on these accounts only that it 
 is at all defensible. It is in truth justice, not 
 mercy. Instances of that truth have deen shown 
 in the course of this argiime'iit The case is put 
 of conviction for a crime, I care not whether 
 serious or (jtherwise, as to which it has been 
 demonstrated, perhaps next day, perhaps after 
 long years, that there was a mistake; perhaps there 
 was perjury, perhaps a mistaken identity ; some- 
 thing at any rate has turned up showing plainly 
 that the wrong man had been convicted, that an 
 innocent man had been convicted. What iloes he 
 get ' He gets what is called a " pardon." A 
 " p.irdon " for the ciime of which lie has been 
 found innocent I Hut we perfectly underst.'ind that 
 h in cxdihitu justitia' : th.it it is the acknowledge- 
 ment, although in the form of pardon, that the 
 convict was not guilty oi the offence ; and in late 
 years, in some cases remarkable for their hardship, 
 a slight, though inadecpiate, compensation has been 
 given for the wrong and suffering inflicted ; in such 
 cases as have strongly .attracted pulilic attention 
 and excittd sufficient commiseration to press 
 action on the I-'xecutive, there has been some 
 recognition of the wrong done by the State to the 
 individual, in the way of some poor comtiensa*ion 
 to those who had been con^'icted and had suffered 
 in mistake. 
 
 Then, yon find instances where certain character- 
 istics of the particular offence were not brought 
 to the attention of the Court : or you find the case 
 of ill health subsequent to conviction, which my 
 learned friend put, and which I tried to answer at 
 the moment. Such cases are not all infrequent. 
 Take the case of a man sentenced for five years to 
 the penitentiary ; he developes illness; sometimes. 
 
.\(^ 
 
 no (li)ut>l, illness is hIkiiihiu'iI , lint snmi-iimcs it i-> 
 si-riitns. It IS fstaldislitil tli.it lonliiifnirnl in the 
 pcnitiMitijiry lor li\«' years will iiu-.m death, or 
 perin.incTU ill health . uill kill or wreck the man. 
 That was not the sentence of the law ; the law did 
 not inlt-nd to inllict permanent loss of health, still 
 less tit inflict loss of life, wiien it ^jave a sentriK e of 
 five years. 'I'he Jiid^e did not intend tliese other 
 results. The senience would not have lieen 
 awarded had it been foreseen that such a rttsult 
 would i.ike place, and that without remedy. The 
 practii al seiiteiH'e,soaltered,has become in.ippro|iri 
 ate to theodtMice; .ind justiit' ii'(piires a i l•mi^;sioM , 
 and so remission takes place , but ;dl j^oes under 
 the n.ime of p.irdon It is the s.ime kind of pro- 
 cedure as was introduced in e.irl) da\s, in the 
 original Court of l^<piity, to tenijiir the rigour, ;is it 
 was i:alled, of the common l.iw ; when, in the 
 complication of hum:in allairs, things had so turned 
 out th.it injustice mif>ht be done, which the ri^id 
 common law was not c.ip.ible of recojjni/injj. 
 which in fact it was obliged to enforce. So its 
 rigour was tempered ; but it was tempered, not by 
 tile measure oi "the length of the Chancellor's 
 foot," but on principles settled to i)e equitable. 
 Such, I submit, are tlie principles applicable to ilie 
 exercise ol the prero(,'ati\e of jiardon. 
 
 Now, Heniham has iieen relerred to; and, of 
 course, Keiuham discusses the subject more at 
 large, ami sometimes with leference more to what 
 ought to be than to what is. Still, 1 think, he 
 throws some light upon it. In Vol. l.pages^.s, 
 in the .\ppendix, on dt;ath punishments. Henth.im 
 is du.iling with the evil properties of the death 
 punishment, of which he was an inveterate oppon- 
 ent. He enumerates those evil properties, and, as 
 a fourth, he points out that it enhances the evil 
 effects of undue pardon. He speaks of pardon 
 being, as yet, on .in unapt fooling; and, touching 
 on this inaptitude, he speaks of punishment as 
 everywhere necessary, and the application of it as 
 everywhere a necessary part of judicial procedure, 
 
 Uiit, he says, of that saiur iircpi;<'(Uirc\ power iif p.udiin 
 is inoriMjVL'r a ictiuisiu- [i.irt : ixiuer (jI imhIoii, that is to 
 say, as al)ove, power ot arrestinij tlie liaiuls ot the jiuiue, 
 ami |)reveiitiii>j liiiii fidin ajipU inji pinusluiieiit. luitwith- 
 staniiiiiii that ileiii.iiicl tor it. whicli the lonviitioii ot the 
 accuseii has proveil to h.ive taken phue. KiMiiiisite, I say, 
 — not necessary ; tor, without tlie existence oi any such 
 jiower. governiiient niinht be .uiywhere carried on. lint, 
 in this case, evils of no small maKiiitiule woiikl iinavoitl- 
 ably have place -evils, whi h, by apt application ot par- 
 don-power, may lie e.xchulecl; and. by such application 
 as is actually made of them— are. in .i <fe(iree more or less 
 considerable, everywhere excluded. 
 
 Then he goes on to discuss all the evils produced 
 by the unapt application of the pardon-power; 
 and the restrictions on its exeriise ; and he speaks 
 of its being in the hands of a functionary, who is 
 the monarch, and discusses difficulties which 
 arose according to the then existing theory of 
 government. 
 
 ' In Vol. 2, page 579, after referring to certain 
 legislation upon the subject of partlon, he goes on 
 to say : — 
 
 What is tailed mercy, let it be remenibereil. is in many 
 cases no more than justice ; in all cases where the grounil 
 of pardon is the persuasion of innocence, entertaineii 
 either notwithstaiuliUK the vertlict. or in consequence of 
 evidence brought to light after the verdict. 
 
 Then in Vol. g, page 36 : — 
 
 To the vocabulary of tyranny belongs the word mercy. 
 The idea expressed by this word is a sort of appendage 
 to, and antagonizes with, the idea designated tiy the word 
 justice. 
 
 The woril iustice, as but too commonly eiiiployeil, 
 III, iti Ills with the Wdid irserwd, a>> applied to punish' 
 mint In this Mn>c, peii.il iu .tue is excniied b> the up 
 pliialioii ot piiiiishiiii III oil liii- 01 1 .iMoii oil wliii li, anil 
 the ipi.iiitily in whuli. It is desersed. In lliis 1 .ise. It 
 mercy be exerciseil it is in oppositiuii to. and at the ex 
 Jieiise of justice; in so tar as meuy is exercised, pistice Is 
 not done. W li,il in lliis. .is in eveiy case, the jj'c.itest 
 li.lppilless of 'he gre.ili'st liilliibri nijllires, is th.it it, on 
 the 01 1 .isioii III (piestion, the applicitioli ot the punish' 
 iiieiit iu (|ui!sli(ui would beioiiilucive to that happiness, 
 the punishmeiil should be .ipplied : it not. not; If, in 
 either 1 ,ise. justice is .ulministered. no such thiiiu ,is men y 
 Is exeuised in either c.ise. I'mler .1 xovernmnil wliich 
 li.is. lor Its ac tii.il eiiil. tin uri'.itesl h.ippiness ol Ihe great- 
 est iiuiiibei. thus it Is ihal men y is unknown. Mercy un- 
 known and why.' (iidv bei .luse tvr.iniiv is unknown. 
 I'nder a repiescnlative ilemoci.uy- under the govern- 
 liieiil of the .\1114lo .\iii"ncaii Ciiited St.ites, lor instance, 
 nieicy is uiikiiowii, or .i> least might be so with griMt ail- 
 v;iiil.iue. .111(1 ihrit'lnie oii^lit to be unknown. I'nder that 
 government, loi .1 turn lion;iry as such to st.iiid ii|> on any 
 occ;i'.iiui. and s.iv. I will, on this occ.isioii, show mercy, 
 would be asnuuhasto say the power ol a tyrant is in 
 my h.inds but on this 01 c.i^ion I will not exercise it. 
 
 So again, he speaks ol tlieiiuantity of punishment, 
 :ind tlu? ijuantity of mercy under a limited mon- 
 • irchy, and refiirs to the etlect, and the method by 
 which it was in liis day carried out in Mnglancl, 
 
 Keniission ot punisliment, yes ; for tluit, there ni.iy be 
 Kood re;ison on v;irious occasions ; but they .ire all ot them 
 I .ip.ihle ot lieiiig, ;iiid all ot lliem ought lo be, specitieil. 
 
 In one wold, mercy iiiid justice are incompatible. In a 
 govci iiment where tlieie is room loi mercy, it is because 
 justice is o\er-ruled by cruelty. .As mercy is ;i suliject of 
 |)r;iise, the more cruel the tyranny, the gre;iter is the 
 room m;i(le tor praise. 
 
 Then I ivfei to Hlackstone's Coinmentaries, 
 which, even with due regard to those re.serves 
 which Mr. Dicey properly says are to be made in 
 his case, are still lit to be considereil in this 
 connection. 
 
 Vol. 1, page a 31) : — 
 
 .Ml ollences are theoretic;dly ;ig;iinst either the peace of 
 the ."Sovereign or his t'rown .iiui dignity. Kor though in 
 their ccjiisetiueuces they gener;illy seem, except in the 
 case ol treason, .iiid ,1 \ el \ lew others, to be r;itlier ottences 
 against Ihe Kinjjilom than the Crown ; yet. as the public, 
 which is ;in invisible body, liiis delegated ;ill its powers 
 and rights, with reg;iril to the execution ot the laws, to 
 one visible magistrate, :ill iiltroiits to th;it [lower, and 
 breaches ot those rights, iire imnieili.itely otieiucs ;igainst 
 him, to whom they are so ilelegiited by the public, lie is 
 therefori' the proiier person to prosecute lor all public 
 ottences aiut bre;iches ot the pe;ice, being the jierson in- 
 jured ill the eye of the law. .And this notion w;is carried 
 so tar in the old (iotliic Constitutioii.w herein iheSovereinii 
 was bound by his coronatiuii 0.1th to conserve the pe.ice. 
 that in case of ;iiiy (orcilile iniury ottered to the person of 
 a fellow subject, theolteiuler was .iccusedot a kiiul o! jier- 
 jury. in luiving violated the coronation o.ith ; did/'aliir 
 'frci[issf jiixiiiit nlinii xais JKriitiim. And hence also arises 
 anotlier hraiicli ot the iirerogative, th.it of pariloning 
 ottences ; tor it is re;isoii;ilile thiit he only who is iiijureil 
 should li:ive the. [lowei ol loigiving. lit prosecutions and 
 partlons I sliall treat more at huge liereafter; and only 
 meiition them here, in this cursory manner, to shew the 
 constitutional grounds ot this power ol the Crown, and 
 how regularly connected ;ill the links are in this vast chiiin 
 of prerogative. 
 
 At page 231J the note gives this extract from 
 Hargr.ive :— - 
 
 The iirerog;itive of mercy would seem to lie lodged in 
 the ("rown. not so much from the hction that the Sovereign 
 is the injured jiarty, as Irom the necessity ot placing it 
 where it may be promptly and judiciously exercised. The 
 I'^xeciitive luis. theretore. in alt countries, naturally and 
 necess;irily been invested with the prerogative. 
 
 In Vol. 4, page 404, there is a further discussion, 
 in which the monarchic:il view is repeatedly put 
 forward and \ery strongly held up ; and upon that 
 and Hlackstone's general notions of prerogative, I 
 ask your Lordships to consider the views of Mr. 
 nicey. 
 
37 
 
 Hicey, page 8 : — 
 
 Its true ilelci.t (Hl.n kstntii-'s ('iiiniiiiMilarietl i-t the.hopr- 
 \e^i^^ ciiiitiisiuii Ixilli ot I.iiixii.ik>' .iikI ciI tlii>ii|;lit. intro 
 liurc'il iritii till' wlioK' Mil>|c'it >i| i (nistitiit luii.il l.nv liv 
 Hiack-'tdlit'''' lialiit iiiiniiinti t<i .ill (In- l.iNVMts cil lll^ 
 tunc III ,i|<|'In iiiK old aiiil iii.i|i|>liialili' tl'llll^t(l luw in 
 stitlitlniis, .iiiil i:>|i('ilallN lit ascnIiiiiK ill wiiiiK tii a niml 
 t'tti and (niiitltiiihiii.il KiiiK. tlu' svliiilr ,iiid |ivrlia|is lumt' 
 tliaii tliL' wIiiiIl- lit tliu piiMCrs aitiially |iii>M'sst'd ami 
 exerclied by William tlic l-^iiitiiieror 
 
 Ami then lie prucceds tn i|iinte Klackstoiifs j^t-ii- 
 eral Nt.ttfiiicnt im tht? pri'iomiliM-. ;iiul tlie l.mnu.it^f 
 of his criiiiism is piiiiK'i'iit - 
 
 It stands curtail) d. Imt in Milistaiuc iinaltrrnl, in tlic 
 last filltiiiiMil Mi'iilirn\ I oiiiMiciit.il u». It lias Imt mir 
 laiilt ; tlie sl.ili'iin'iils it Lniit.iiiis an' tlic ilirurt oppositr 
 ol the tiiitli. 
 
 Mr. IJicev, i.s, perhaps, aliltle ailtlii tcil to strcjiin 
 langiiaKe ; liiit tliat is what, with urent reason, hu 
 says here. 
 
 The Kxeciitlvf ut luiKlaiul is in fact placed in the hand-t 
 of a cDiniiiittic c.ilh'il tlif CaliiiiiM. It tluTC be any one 
 [iflsoli in vvliusc sinKlc liaild tlir piiwiT ol tile St.itc is 
 placed, that one person is not llie (.Uieeii. Imt the chnirni.in 
 of the coniniiltee. known as the rrinie Minister. Nor cm 
 it lie iifKril that Ul.ickstone's ilescrii)tion of the Koy.d 
 aiithoritv «as a true accoiiiit of tlie powers of the KinK .it 
 Ilie tiiiir HJicii Itl.ickstone wrote, (loor^ie the Tliiril en 
 jiiyed lar iiiore real authority than h.is lalleii to the sli.iu- 
 of any of his descend.ints. lint it would he absurd to 
 maintain that the l.iiiKuaKe I have cited painted his true 
 position. Till' terms used by the C'oiiimeiitator were, 
 when he used them, unreal and known to be so. They 
 have become (inly a little more unre.il dining the century 
 and mure which has since elapsed. 
 
 Anil he cites aK^in the suKKestioii that the Kin^,' 
 is the fnuntain ut justice anil conservator of the 
 peace of tin; Kinj^iloni. 
 
 Here we are in the midst of unrealities or of fictions. 
 Neither the (jiieeii nor the IC.xeciitive have anythini; to du 
 with erectinij I'oiirls ol Justice. We should rightly c un- 
 elude that the whole t'.ibinet had Kune nuid it lo-morrow's 
 Ciazettc cont. lined an ( irdrr-inlduncil not authorized liy 
 statute erectint! a new Court of Appe.il. It is worth 
 while here to note wliat is the true injury to tlie stiulv of 
 li'w [irodiiced by the tendency of Hlackstone, and other 
 less famous constitutionalists, to adhere to unreal expres- 
 sions. The evil is not merely or mainly that these e.xpies- 
 sioiis exaRuera'c' the power of the Crown. l'"or such con- 
 ventiona! exautjeration a reader could make allowance, as 
 easily as we do, for ceremunious terms of respect or of 
 social courtesy. The haim wrouRht is. that unreal lan- 
 KuaRe obscures or conceals the true extent of the powers, 
 both ot the (Jueen and ot the Kovernnieiit. .No one in- 
 deed, but a child, fancies that tlic Oiieen sits crowned on 
 her throne at Westminster, and in ner own person aiimiii- 
 isters justice to her subjects. Hut the idea entertained by 
 many educated men that an Knulish KiiiR orUiieiui reiKiis 
 witliout takinti any part in the Kovernment ol the country, 
 is nut less far from the truth than the notion that (Jueen 
 Victoria ever exercises judicial powers in what are called 
 her Courts. The odility of the tliinn is that to most 
 EiiKlishmen the extent of the authunty actually exercised 
 by the Crown, and the same remark applies (in a great 
 measuiefto the authority exerciseit by the I'rinn; Minister, 
 and other high otticials, is a matter ol conjecture ; 
 
 and he points out reasons and circumstances. 
 
 So you finii that the l.inguaKe of Blackstone — 
 where he uses phrases to which my learned friends 
 adverted wiien they talked of the milk of human 
 kindness, and of this beinj; practically an arbitrary 
 and personal prerogative, comprises obviously 
 phrases which have, for a very long time, had no 
 proper application even to this prerogative. On 
 the contrary, more and mote has the exercise ol 
 this prerogative by the person who, in the name 
 the Sovereign, does exercise it, the Home Secre- 
 tary — more and more, 1 say, has the actual conduct 
 of that official in the exercise of the prerogative 
 come under general, and public, and even parlia- 
 mentary discussion. In a statement which was 
 inade in connection with the Kiel case, and which 
 
 will be handed in to your Lordships, will be found 
 a collection ol remarks by numerous lliuup 
 Secretaries during the last thirty ur torty years, 
 showing the method of the exercise of the preio- 
 g.itive, and making it [u^rlectly clear, iiut merely 
 that as a matter id fact the (irerogaiiye is exercised 
 by the Home Sei letary , iindi'r his responsibility 
 to parliament, but that this l.ii t has, it last become 
 public and common kiinwledge , that everyone 
 understands it : and, we know very well that Mr. 
 Secretary Matthews, the person who at presiiit 
 fills that ulfiie, has undfrgnnc trei|iient and scv>;r« 
 criticism in respect ol iiis ollu ial action. Nobody 
 has ;iny imagin.itiun that the (.Miei'u. persdu.illy, 
 li.is .lught to do with it 'Ihc ipiestion then which 
 we ,ire now called iiimn to discuss is not whtiiher 
 this prerogative sh.ill be e.xercisetl by the (Jueen, 
 but whether it sihall be e.xercised by Home Secre- 
 tary Matthews, or t'ulonial Secretary Lord 
 Kniitslord, or Minister of [iistice Sir John 
 Thompson, or by .\ttorney -Cieneral Mowat. 
 The i|uestion simply is- it being conceded on all 
 li.mds that tht! |iiiwer is to be exercised by some 
 person who is resjionsible for its exercise to those 
 concerned in its exercise who is the lit person ? 
 And, who cati the lit person be, according to thost- 
 principles of tlie British ctitistitiition to which i 
 liave r(!ferred '' Who can the lit person be, save 
 that person who is responsible to that portion of 
 till- peoplt! which is conccrncil in the niatter, to th.'it 
 jiortion of the people which makes the l;iw, that 
 portion of the people which is governed by the law, 
 th.'it portion of the ptuiple which siillers or bent^fits 
 bv the administration of the law, that portion of 
 the people which c;an retain or dismiss the ollicer 
 who ;icts under the law? Klse, to the extent to 
 which this prerogative is administered by an 
 ollicer of some other govt'rnment, whom the people 
 of the Province do not ri]i|Hiint and cannot dismiss 
 — to that t^xtent they arc deprived of the Ixmetit of 
 the great and uiidt'rlying principle of the Hritish 
 constitution, the power of governing themselves 
 according to their own will. 
 
 The tletinition of pardon given in .Anderson's 
 Dictionary of the Law is that it is 
 
 an act of cracc proceeding from the power entrusted with 
 the execution of the law. which exempts tlie imiividual on 
 whom it is bestuwtd tioii. the puiiishnient the laws inflii ts 
 for ,1 crime he has conimitted. It is in tru'li a part of the 
 administration of justice. This liij»h prerottative the 
 King is entrusted with on a special confidence iTiat lie will 
 sjiare those only whose case, could it have been foreseen, 
 the law itself may be presumed willing to have excepteci 
 out of its general rules, which tlie wisdom of man cannot 
 possibly make so perfect as to suit every particular case. 
 
 There is an interesting account at page 513, 
 American Law Register, of the power of pardon, 
 directed more particularly to its exercise in the 
 United States, but also giving an account of the 
 I'^nglish constitutional law as to the power of 
 jiardon, and shewing the interventions which had 
 from time to time, and even in early days, taken 
 place by I'arliament. 
 
 Page 526 : — 
 
 It was never doubted that the exercise of the Kine's pre- 
 rogative of pardon might be restrained or controTletf by 
 .•\ct of Parliament and several .-Xcts have been passed for 
 this purpose. Thus, the transporting and committing any 
 man to prison without the Realm is made by the Habeas 
 Corpus Act. .•^i Car. 2. a crime unpardonable by the King. 
 
 By 12 and i.t William the 'I bird. C. 2. it is declared that 
 no pardtm under the Great Seal shall be pleadable to an 
 impeachment by the Conimones in Parliament. 
 
 Bv 2 Edward the Third. Ch. 2, and 14 Kdward the Third, 
 Ch. 15. it is provided that no pardon of homicide shall be 
 
38 
 
 granted, only where tlie King may do it by the oath ol his 
 Crown, i.f., wlure a man ^laveth another in liis own 
 defence or by niislurlune. 
 
 Then the Koyal power, in tliis respect, was en- 
 hirged by i j Kicliard the Second C, i ; so that 
 at so early a time as that of Kdward the Third the 
 King's power of pardon was limited ; and it 
 became a statutory prerogative in the reign of 
 Richard the Second. 
 
 The sixth volume of " The Criminal Law Mag- 
 azine," page 457, contains an interesting historical 
 statement, including an indication of the powers 
 that existed at one time, in the Lords of the 
 Marches, in Wales, and I think ;dso in the district 
 between England and Scotland. 
 
 Hagaktv, C J. -The King sometimes exercised 
 the power with the aid and consent of Parliament ? 
 
 Counsel — Certainly, my Lord It was a special 
 form of Act of Parliament, but the power was 
 sometimes exercised in that way. 
 
 Hagartv, C. J. — It shews that the Crown shared 
 with the Legislature upon those occasions the 
 pardoning power. 
 
 Counsel — The Act of Grace is a well-known 
 Parliamentary form of exercising the pardoning 
 power. It has its specialties of procetiure ; it is 
 not presented or prosecuted in the ordinary way. 
 
 .\gain referring to the old powers oi the Lords 
 of the Marches ; the power of pardon was by ■Z'j 
 Henry the Eighth, vested solely in the King, in 
 those regions, that is to say, in the Marches, and 
 in Wales. And why ? Because in that country as 
 well as in the other parts of the Kealm the King 
 was the prosecutor of all offenders against the 
 criminal laws of the Realm, and in His name all 
 actions for fines and penalties were brought. It 
 was perfectly consistent, in theory, that the King 
 should, by means of a pardon, remit any punish- 
 ment due to the public justice of which he was the 
 embodiment ; and any fine or forfeiture, which he 
 would himself otherwise receive. 
 
 Hawkins' Pleas of the Crown, chap. 37, p. 529, 
 sec. I, deals with the case of the Lords Marchers, 
 and other, who had jura rcj^alia, rights by ancient 
 grant, or by prescription, and cites the Act, 27, 
 Henry the Eighth, vesting these powers in the 
 Crown. 
 
 King V. Parsons, Holt's Reports 519: — 
 
 The power of pardoiiinj; all ottenccs is an inseparable 
 incident to tlie frown ; and it is eciually for tlie g(iod of 
 the people tliat tlie King sliouUi pardon as tliat lie slionld 
 punish. Tlie KiiiR. by Ids coronation oath, is to shew 
 mercy as well as to do justice. 
 
 Vattel's Law of Nations, book i, ch. i j, sec. 
 
 173:— 
 
 The very nature of Governiiieiit re(|nires tliat the ex- 
 ecutor of tlie laws should have tlie power of dis|iciisinK 
 with them when this may be done without injury to any 
 person, and in certain particular cases where the welfare 
 of the State requires an exception. Hence the right of 
 granting pardons is one of the attributes of Sovereignty. 
 But. in his whole conduct, in his severity as well as his 
 mercy, the Sovereign ought to have no other object in view 
 than the greater advantage of society. A wise prince 
 knows how to reconcile justice with clemency - the care ol 
 tlie public safety with that pity which is due to the un- 
 fortunate. 
 
 Maine's Ancient Law, p. 380 : — 
 
 The modern administrator of justice has confessedly 
 one of his hartlest tasks before him when he undertakes 
 to discriminate between the degrees of criminality which 
 belong to offences falling within the same technical de- 
 scription. It is always easy to say that a man is guilty of 
 manslaughter, larceny, or bigamy, but it is often niost 
 difficult to pronounce wliat extent of moral guilt he has 
 incurred, and consequently what measure of punishment 
 
 he has deserved. Theie is hardly any perplexity in casu- 
 istry, or in the analysis of motive, which we may not be 
 called upon to coiilront, if we attempt to settle such a 
 point Willi pre( isioii ; .ind accordingly the law ot our day 
 shews an increasing tendency to abstain as much as pos- 
 sible from laying down positive rules on the subject. In 
 France, the jury is left to decitle whether the otfeiice 
 which it finds committed has been attended by extenu- 
 ating i.ircimist.ince> : in Kiiglaiid. a nearly unbcniiuied 
 latitude in the selection ot puni^hiueiils is now allowed to 
 the Judge ; while all States have in reserve an ultimate 
 remedy for the miscarriages ol law in the pierugative of 
 pardon, universally lodged with the Chief Magistiate. 
 
 Xow, my Lords, I must observe that, with 
 reference to the exercise of this particular prero- 
 gative, there are some things which have in past 
 days confused the ideas of the general public mind. 
 The very circumstance, commented upon by Dicey, 
 of the existence of notions widely spread, regarding 
 the Sovereign's personal authority as still sub- 
 sisting, and touching the personal character of 
 prerogative, has had special weight with regard to 
 this prerogative of so-called " mercy " and " par- 
 don;' and the very name "pardon," the very name 
 " mercy," has served to maintain in the popular 
 mind, longer than in other matters of a cognate 
 character, notions as to the exercise of an 
 indiv idual or personal prerogative of the Crown. 
 
 Many other prerogatives are of such a character, 
 and are exercised under such circumstances that 
 they do not strike the popular mind, or impress 
 the general thought so forcibly as is the case in 
 respect of convictions after interesting public trials. 
 The incidents of the cause; the feelings which 
 must always animate the breast of man, moved liy 
 the condition of the wretch who is to suffer the 
 great penalty of the law ; the dramatic, even tragic, 
 character of the events ; the shortness of the 
 interv.'il within which the punishment is to follow 
 the finding of the jury -all these things have made 
 the exercise of this particular prerogative the 
 subject of popular thought and interest, and of 
 popular misconception too, more, perhaps, than 
 the exercise of any other such power. This mis- 
 conception has been seriously enh.inced by the 
 still fresh memory retained of notorious historical 
 instances, in which, under the guise of a consti- 
 tutional exercise of the prerogative, at times when 
 prerogative notions stood much higher than they 
 stand to-day, the monarch himself has been put 
 forward as the granter or refuser of the prero- 
 gative of mercy. You have the instance which the 
 great master of the art of the novelist, the great 
 exhibitor of the thoughts antl fancies, habits and 
 customs of the people, to whom reference is made 
 by Dicey, has made familiar by the affecting 
 episode of the journey ;ind appeal of Jeanie Deans. 
 You have the incident in i7i3of the Countess of 
 Nithisdale, and Lady Cairns ; growing out of 
 circumstances in which it would be naturally 
 supposed, that for some reasons, the monarch was 
 specially the person concerned, because they h.'id 
 regaril to attempts against his power and, no 
 doubt, against his safety. Those ladies appealed 
 personally to their Sovereign for their husbands, 
 then lying under sentence of death. Not meta- 
 phorically but literally. Lady Nithisdale laid herself 
 at his feet, clinging to his robes, praying for his 
 mercy. Those tears ;ind entreaties, of course, pro- 
 duced no eflect ; the decision even then was in 
 other hands. Still, that was what the public saw ; 
 it was that by which the public was impressed. 
 So, take the remarkable episode in which James, 
 exhibiting a callousness which outraged common 
 decency, and the ordinary feelings of humanity. 
 
.^0 
 
 R.ive an inierviow to liis own m^pliew, Moniiioiitli, 
 and allowed ilu; unhappy man to kneel, imploiiuf;, 
 at his feet ; althou^'h he was all the time deter- 
 mined to resist the supplications he allowed, and, 
 so far as he was concerned, to consiuuniate the 
 execution. 
 
 All these thiuj^'s Idled the mind of the public, 
 mcjre uv less, with the idea of a continuing personal 
 prerogative of pardon, liui that notion, in a Court 
 of Justice, in a parliament, amongst constitution- 
 alists, amongst jurists, is as utterly exploded as 
 the notion of the personal exercise of any other 
 prerogative that can be named. While there may 
 bo some specialties perhaps even yet attending the 
 exercise of such prerogatives, for example, as that 
 oi dissolution, or that of the choice of a (irst 
 minister, or the ennobling of a retiring first minis- 
 ter ; yet as to the vast mass of prerogative powers 
 it is common knowledge to-day, and it is becom- 
 ing common knowledge to-day with reference 
 to the exercise of the prerogative of mercy, 
 that the personal wishes, the personal views, 
 the personal influence, or the initiative of the 
 Sovereigti have no more to do with the exer- 
 cise of these prerogative acts than they have to do 
 with any other act of Government . In this par- 
 ticular instance, as in all others, if the Sovereign 
 decides to take issue with the Minister of the day, 
 and not to follow ad\ice to which that Minister 
 adheres, she must find someone else who will ad- 
 vise her as she wishes, she must act on the advice 
 of some Minister responsible to her people. The 
 principle of the Hritish Constitution applies to this 
 just as much as it applies to an\- other preroga- 
 tive ; and therefore this, in common with all otlier 
 prerogatives, is to be exercised with responsibility 
 to that British community which is affected by the 
 act. 
 
 I have pointed out to your Lordships some 
 reasons why, in the general sentiment, this prero- 
 gative has been, up to a later date than others, 
 loosely considered as more personal to the 
 Sovereign, throughout the Hritish Dominions, 
 within the British Isles, as well as elsewhere. 
 
 There is, perhaps, an additional reason why it for 
 a time appeared in our ow n Ci^lonies to he one more 
 personal to the Sovereign ; and to be exercisable 
 by her representative, independently, or otherwise in 
 communication with Her Colonial Secretary. In 
 truth, the general notion as to local action on this 
 subject, may be said to have rather retrograded 
 than ad\anced after the .\tnerican devolution. As 
 I said yesterday, the old Colonies exercised the 
 prerogative before the Revolution It may be 
 suggested that at that time the necessity of the 
 case demanded it. In that age the cominunication 
 between the old and the new world was very 
 infre(]uent : and the time occupied in transmitting 
 intelligence was very long and very uncertain. 
 With the facilities for speed in communication, 
 that difliculty was, if not altogether dissipated, at 
 anv rate diminished. So again, after the Revolu- 
 tion, although the particular point upon which the 
 Rebellion m.iinly turned, that, namclv. of taxation, 
 was at once and forever abandoned, still our own re- 
 maining Colonie;,, so far as their Rnglish-speaking 
 population was concerned, were composed, as I 
 have said, very largely of Ihiited TCmpire Loyalists, 
 imbued with the very strongest sentiment of 
 loyalty to the Sovereign, with the very strongest 
 feelings of abhorrence for rebellious action ; and 
 naturally disinclined to complain of, if not rather 
 inclined to welcome any exercise of prerogative 
 
 power which did not greatly and prejudicially 
 affect their tangible interests. .\s to that portion 
 of our Colonies whose,' pipulation mainly consisted 
 of the con(piered subjects of I'rance, those people 
 were few in number, and isolated in position; and 
 thev had been accustomed to a much less measure 
 ol liberty than the I*"nglish : so that the character- 
 istics of the population of the colonies, the small- 
 ness of their numbers, the rudimentary nature 
 of their institutions, and all the elements which 
 surrounded the Queen's empire in this northern 
 part of the continent, conduced toignoratice of and 
 indifference to the growth of changed popular 
 views as to the exercise of this prerogative else- 
 where. And, so far as Kngland, in her relationship 
 to the.se Colonies, was conc(;rned, there was, of 
 course, the natural feeling, which perhaps is not 
 wholl)- extinct to-day, that, if we would only 
 allow them, they could govern us much better than 
 we could gcnern ourselves ; that we were not lit to 
 exercise all the arts of government. .\nd besides 
 there was a natural clinging to the form of power, 
 a natural clinging which, in the case of Kngland, 
 has been intensified by pecidiar circumstances 
 affecting her dealings with her numerous ("olonial 
 possessions. She has had one Imperial office, and 
 one set of permanent ofticers, with one political 
 head, administering that portion of control and 
 power which the Hritish Constitution, fluctuating as 
 it does from time to time, confers over a very large 
 number of dependencies : w hich dependencies are 
 themselves in various conditions of forwardness 
 with reference to self-government. Some are gov- 
 erned as purely Crown colonies ; in some there is 
 an Executive Council in which the Crown predom- 
 inates ; while in others there are representative 
 institutions more popular than these, but still 
 with a more limited range of power than exists 
 with us. It was natural then that the Colonial 
 office, dealing with these various kinds of depend- 
 encies, and exercising great and real power over 
 some, should cling to the notion that the exercise 
 of such power was an object as to all ; and was to 
 be guarded to the uttermost. 
 
 Bi'RTON, I — I do not exactly remember how- the 
 thing stood before 1.S40. There was a Lieutenant- 
 Governor for this Province, but I was under the 
 impression that there was, under the constitution 
 of that day, a Governor-General. 
 
 CoiNsEi, — I think there was the Governor of 
 the Province of Canada, who was the Governor of 
 Quebec, and Lieutenant-Governor for the Upper 
 Province. 
 
 Burton, J — And how was the pardoning power 
 at that time ? Did the Lieutenant-(Jovernor at 
 that time exercise the pardoning power ? 
 
 CoiiNsiii, — My researches were from the .\ct 01 
 Union down ; I did not pursue my enquiry further 
 back. 
 
 Burton, J. — Of course, he was appointed by the 
 Crown, but he was only Lieutenant-Governor. 
 
 Mr. Irvinc; — The last was Lord Sydenham, and 
 he was Governor-General of Upper and Lower 
 Canada, and he being here opened this Parliament 
 as Governor-General. 
 
 Hag.\rtv, C. J. — Yes, I regret to say I can re- 
 member it very well. 
 
 Mr. Robinson — There was no statutory provi- 
 sion. 
 
 Counsel — Before I close I will give your Lord- 
 ships a reference to such statutory provisions as I 
 have been able to find. 
 
4° 
 
 As 1 lia\e said, all those cotulitions which 
 clouded a clear perception of the character ot this 
 prerogative, and of the method in which it should 
 be exercised, are now chant;ed, and all is now 
 plain i but with reference to certain remote 
 eventualities as to Canada, and tcj some even more 
 remote as to the Provinces, there may remain to- 
 day the possibility of the existence of Imperial 
 considerations ; theoretically, at any rate, Imperial 
 interests may at some time i)e concerned ; and 1 
 think the only exception which can now be held 
 to exist, the only modification which can now be 
 held to apply to the exclusively local exercise of 
 the prerogative is in the possible case of an Im- 
 perial interest, arising from the execution of some 
 local law against some sul)ject of a Foreign Power 
 in a manner which gives, in the view of that 
 Power, concurred in by the Imperial authority, 
 just cause of offence. In that view, theoretically 
 speaking, technically speaking, speaking of pos- 
 sibilities, it may be said that there is an Imperial 
 interest, which perhaps may not necessitate, but 
 which perhaps may after all be served by the reser- 
 vation of a right to exercis;- iit such cases the pre- 
 rogative of the remission of sentence. )t is this, 
 and this only, as I will shew your Lordships moreat 
 large in a moment, which confessedly now remains 
 as a subject of possible consideration ; and from 
 an early period the fact that Imperial interests 
 might arise, while, as a general rule, local interests 
 alone existed, was recognized in custom, and also 
 by Statutes. This circumstance it is, which ex- 
 plains certain specialties of former legislation ; and 
 which rendered it perhaps not unfitting, that, 
 carrying into all its elements the very great caution 
 which has pervaded the mind of the framer of this 
 particnlar statute, he should have saved the Royal 
 Prerogative even here and now. 
 
 Hut, it is needful to reinark that, with reference 
 even to this exercise of this prerogative, the 
 general proposition that the prerogatives of the 
 Crown are held in trust for the people, and that 
 the people's interests must be secured by the appli- 
 cation, to all existing and active prerogatives of 
 the Crown, of the principle of responsible govern- 
 ment, ,'ipplies ; and that in this case, as in other 
 cases, the diminution or extinction of the personal 
 authority of the Crown may take place without 
 any positive action; by mere inaction; by simple 
 disuse. There is nothing more remarkable, and 
 nothing more instructive, than that circumstance. 
 You inay turn to the greatest prerog itive, perhaps, 
 which the Crown ever had; and you will lir.d that, 
 according to the concurrent judgment of all con- 
 stitutionalists, it has disappeared ; and that by no 
 Act of Parliament, but by simple disuse ; and that 
 too by disuse which, having regard to the nature 
 of the rights of the Crown, and the historic cir- 
 cumstances of the case, has been of no very long 
 durE.';>..i. I refer to the prerogative of exen^i ing 
 an adverse judgment on Bills presented for the 
 koyal assent. It is now held that that prenjgative, 
 which was actually used by the monarch of the 
 Revolution, has become for all practical purposes, 
 non-existent, simply by reason of its disuse ; and 
 in its place was substituted a great ainelioration. 
 If the Sovereign thought that he ought not, with- 
 out exerting the reserved powers of the Constitu- 
 tion, to agree to any proposed measure of legisla- 
 tion, then instead of waiting until that measure 
 had passed-all its stages, and was presented to him 
 for his assent, and thus coming early and perhaps 
 
 net:dless!y into collision with the settled and final 
 judgment of both the law-making Houses, he 
 might invite his Ministers to oppose the Hill. If 
 they did not choose to take the responsiiiility of 
 resisting, he might, if it pleased him to go further 
 and take graver steps, seek other Ministers, who 
 would assume the responsibility of resistance; 
 ;ind he might thus obtain, by the means of respon- 
 sible Ministers who were answerable for their 
 course, a defence against what he conceived to be 
 erroneous legislation. If that defence seemed 
 about to fail ; if he saw that the judgment of the 
 popular House was after all in favor of the mea- 
 sure ; and if he thcjught, advised by his new Min- 
 isters, that the judgment of the House did n<Jt 
 represent the real feeling of the natiim, and that 
 the issue was important enough to render proper a 
 recurrence to the sense of his people (to use the 
 well-worn phrase), then he might, on advice, dis- 
 solve ; and ultimatelv the settled will of the peo- 
 ple as expressed at the polls would decide the 
 (|uestion, and the l;iw, if passed by the new House, 
 would be assented to. Thus collisions were as 
 far as possible to be averted or postponed ; the 
 monarcli was thus to take all possible precautions, 
 consistentl}' with his constitutional position, for 
 the final settlement and ascertainment of the 
 popular will ; that being ascertained, to that he 
 was to yield. So you see that by a .u'r lual pro- 
 cess, not embodied in any .\ct of Parliament, not 
 formulated in any resolution, but by disuse on the 
 one hand and the growth of new customs upon the 
 other, the greatest prerogative of all actually 
 perished. .\nd indeed a like process has been 
 rapidly limiting, or has already destroyed, the 
 powers of the monarch to press even to the nar- 
 rower extent and l)y the more constitutional means 
 I have sketched out — to press to the extent of 
 dismissal or dissolution, thcuigh under the shelter 
 of advice, his personal opinions. Similar modi- 
 fications are traceable throughout the body of the 
 constitution ; sometimes by limitations on the 
 practical exercise of the power; generally through 
 a recognition of the fact that the prerogative has 
 become so largely the property vf the party for 
 the time being in power ; and uni\ersally by the 
 application of the general principle of the con- 
 stitution, namely, that the prerogative however 
 active can be exerci.sed only under advice. 
 
 Well, the notions 1 have mentioned as to pardon 
 lingered here for some time ; and the Iinperial 
 interests to which 1 have referred were, of course, 
 deemed to bo of greater consequence, and the 
 danger of their neglect thought to lie more serious 
 in earlier than in later days ; but they came down 
 to our time ; and there has been considerable dis- 
 cussion and controversy upon the subject of 
 prerogative generally, and upon the subject of this 
 prerogative in particular. 
 
 To glance at it historically with reference to our 
 own Cf)nstilution. so far were those who framed 
 the constitution from supposing that there was 
 any difficulty in the exclusive exercise by the 
 Provinces of the prerogative of pardon in all cases, 
 including crime, that, as my learned friend has 
 said, the Quebec resolutions proposed that it 
 should, on grounds of convenience, be dealt with 
 exclusively by the Lieutenant-Covernors of the 
 Provinces. In the th'.'u state ot sentiment as to 
 this prerogative, that proposition did not wholly 
 commend itself to the Colonial Secretary of that 
 day ; and the .\ct of Parliament was framed, not 
 
4t 
 
 vesting the prerogative in express terms one way 
 or the other, but omitting the proposed article, 
 and leaving the matter to be settled under the 
 geneial terms of the statute. 
 
 Then came, at a later day, the question of the 
 principle upon which this prerogative should bf 
 exercised by Canada ; and the old clause was for 
 some time continued in the commission or instruc- 
 tions to the Governor-General, directing him in 
 capital cases not to act necessarily upon the advice 
 of his council ; to obtain their advice, but not 
 necessarily to act upon it. 
 
 Then arose an animated and protracted discussion 
 in and with some of the Australian Colonies, as to 
 the prinr- le upon which this prerogative should 
 Ije exercised ; whether it was to be exercised by the 
 Governor of the Colony independently of or, at 
 any rate, not necessarily following the advice of 
 his Ministers ; or whether it was to be exercised 
 according to the principles of responsible go\ern- 
 ment. There was a long correspondence ; the 
 views of the Home authorities were invoked ; and 
 they sent certain despatches. Meantime there 
 came up, here in Canada, a question as to another 
 prerogative power of our Governor-General, the 
 power of disallowance ; and it appearing that in a 
 particular case the Home Secretary had sent a 
 despatch to the Governor of the day, intimating 
 his opinion that the power of disallowance was a 
 prerogative which he was to exercise personally, 
 not following the advice of his Ministers.thecjuestion 
 was raised in the Canadian I'arliament ; and a res- 
 olution was proposed afiirming, as applicable to the 
 exercise of that prerogative po.ver, the principle of 
 the Constitution ; namely that it could be exercised 
 only under advice. That resolution, though with- 
 drawn for the moment at the instance of the Go\- 
 ernment of the day, was .so withdrawn after an 
 expression of entire concurrence in its \ievvs by 
 Sir John Macdonald, then in Opposition ; and after 
 1 practically unanimous e.xpression of opinion in its 
 favor, withdrawn only upon the representation 
 that the government was in communication with 
 the Imperial authorities upon the subject of that 
 despatch. That correspondence after some time 
 reached a point at which the Colonial Secretary 
 transmitted the Australian correspondence on the 
 prerogative of pardon, as indicating the grounds 
 which bethought applicable to the exercise of the 
 prerogative of disallowance. Lord Carnarvon 
 thought that the prerogative should be exercised 
 afttr advice, but not necessarily upon advice ; and 
 he thought there were very good reasons, which he 
 had given in his despatches about the prerogative 
 of pardon, why it would be to the advantage of 
 the Colony if a little " Dcus ex Miicliinn " were set 
 up in the shape of the Governor of the day, 
 who should personally dispose of these matters, no 
 one being really responsible to the Canadian 
 people for such disposition ; that was his sugges- 
 tion. To it the Canadian authorities made answer, 
 opposing that view; and I refer now to the print 
 of official correspondence put in, as showing your 
 Lordships the way in which the suggestion was 
 met, and the practical results. 
 
 The earliest paper is the report approved by 
 Council, and transmitted to Lord Carnarvon, in- 
 dicating the view of the Canadian Government 
 upon the exercises of the prerogative ; and at page 
 .\ your I^ordships will find the view expressed as to 
 the vital necessity of Ministers concurring in, and 
 being responsible for whatever was done, or not 
 done, upon the matter. Page 5 points out 
 
 that t'.ie question involves simply the application to a 
 plain statute uf the well-settled rules ot construction, and 
 the applicatiuu to a plain case of the fundamental principle 
 of the constitution, 
 
 viz., that of responsible Government ; and, it takes 
 certain distinctions which had been raised as to the 
 prerogative of pardon ; and which, therefore, ren- 
 dered discussion of t'lP' subject in its details 
 irrelevant to the discussion of the subject in hand ; 
 but it adds that 
 
 it is not possible to deal with this power on principles dif- 
 ferent from those which apply to the exercise of the other 
 powers of Government conferred in like terms by the 
 statute. Thus the discussion involves the whole question 
 of responsible government, and if the rule proposed by 
 Lord Carnarvon is conceded, it would be impossible to 
 resist its application to our entire system. 
 
 After discussing Lord Carnarvon s proposed rule, 
 it shows that 
 
 Ministers are in truth responsible, not merely for the 
 advice given, but for the action taken ; that the Canadian 
 Parliament Ins ihe right to call them to account, not 
 merely for what is proposed, but for what is done ; in a 
 word, that what is done is practically their doing. The 
 importance to the people of the advice given by Ministers 
 is in precise proportion to its effectiveness. So long as 
 the course pursued is dependent on the advice given, re- 
 sponsibility for the advice is responsibility for the action, 
 and is therefore valuable; but it is the action which is 
 really material ; and to concede that there may be action 
 contrary to advice, would be to destroy the value of 
 responsibility for the advice— to deprive the people of their 
 constitutional security for the administration, according to 
 their wishes, of their own affairs— to yield up the substance, 
 retaining only the shadow of responsible government. 
 
 And the conclusion was that the Colonial 
 Secretary should be informed that 
 
 in the opinion of the government, no action could be 
 taken on the question, save by and with the advice of 
 Ministers who are responsible to Parliament tor such 
 action. 
 
 Further correspondence ensued ; but the end 
 was that the Colonial Secretary, without saying so, 
 yielded ; and since then it has been the common 
 understanding of all parties, including the Home 
 authorities, that this power of disallowance, vested 
 in the (lovernor-General, is a power and preroga- 
 tive to be exercised upon advice, and only upon 
 ad\ice. 
 
 Now, as I said, the principles of action which 
 Lord Carnarvon had propounded for the assent of 
 the Canadian authorities, principles which would 
 have subverted responsible Government, were by 
 him originally propounded with reference to the 
 case of the prerogative of pardon, though he was 
 at the moment applying them to the prerogative 
 power of disallowance ; and shortly afterwards that 
 (juestion of pardon itself came up directly, because 
 a draft general form of Commission and of In- 
 structions, proposed to be applied to the future 
 fiovernors-General of Canada, was sent out for the 
 consideration and observations of the Government ; 
 and subseciuently the Minister of Justice of that 
 day was authorized to communicate with Lord 
 Carnarvon upon this very question. 
 
 At page 9 your I^ordships will find a statement 
 of the grounds which, with the authority of the 
 then Government of Canada, were laid before I^ord 
 Carnarvon, in the general, and in the special view. 
 That statement indicates that not merely the 
 forms which were proposed, but even those at that 
 date existing were felt to be unsuitable; and it 
 states the proposition, which I have already 
 advanced to your Lordships, that therf^ were 
 differences in the constitutions and circumstances 
 of the different dependencies of the Empire, en- 
 
42 
 
 titling some of them to ,i fuller measure of freedom 
 than others, and entitling the Dominion of Canada 
 prominently, principally, most of all to ask special 
 consideration, and a more free and full application 
 of the principles of responsible government even 
 the fullest measure of freedom in local political 
 government. 
 
 Well, after that general ohsetvation, the tenth 
 to the fourteenth pages deal with the cpiesiion of 
 the Commission and Instructions on the subject 
 of pardon ; and it is there suggested that the sub- 
 ject of pardon is, in effect, a branch of Criminal 
 Justice ; that it has been rightly assumed to be 
 within the legislative powers of the I'arliament of 
 Canada ; and various statutes are referred to. 
 After some details, not necessary to be now con- 
 sidered, on page II the chief question is brought 
 forward, tliat arising on the instruction given to 
 the Governor that he is, in capital casts, to extenil 
 or, withhold a pardon or reprieve according to his 
 own deliberate judgment, whether the members 
 of the Council concur in it or otherwise. It is 
 pointed out that there is no ground of reason upon 
 which this distinction can be applied to capital 
 cases; and that the only ground of reason, the 
 only tenable distinction, is between cases, whether 
 capital or net, which may involve Imperial inter- 
 ests, and those which, not involving such interests, 
 concern solely the internal administration of the 
 affairs of the Dominion. After a discussion of 
 the method of dealing with the cases which may 
 involve Imperial interests, it is argued that (saving 
 and providing for those cases in what m.Miiur may 
 be thought fit), they are after all infinitesimal in 
 number; and that the general bidk come within 
 the ordinary rule. A contest is then entered upon 
 as to the reasons alleged lor tne non-application to 
 the Governor-General, in his exercise of this prero- 
 gative, of the limitary rule that it must beexercised 
 under .advice. These reasons are repeated, nainel)-, 
 first, that this is a personal delegation to the Gov- 
 ernor, who cannot in any way be relieved from the 
 duty of judging for himself in every case in which 
 the prerogative is to be exercised, and so forth. 
 Reference is then made to the report, from which 
 an extract is made, upon the question of disallow- 
 ance ; and then additional arguments are advanced. 
 It is pointed out that 
 
 tlie prerogative of pardon Mas been rightly vested in the Sov- 
 ereign l)y statute, siiicl criminal offences are against her 
 peace o. her Crown and ilitjnity. and it is reasonalile thai th(.' 
 person injured should have the powi'r to forgive ; tun ncltlier 
 the punislinieut of tliese injinies nor (lieir forgiveness (l)oth 
 beiuK matters which aOect tlie penpU') is arl)itrarv ; tlie one 
 can hv, and arcordiiinly is, reKulated principally liy law, 
 though a wide discretion as to the piniishment is >;iven In 
 many cases to the Judge ; the other beiiiR niaiidv hi^yond the 
 province of law, is yet, like the remaining prerof;ativ<'s of the 
 British Sovereign, held in trust for the welfare of the people, 
 and so far as it is beyond the province of the law, isrunulated 
 by the general principle of the Constitution. 
 
 There may in this, as in other instances, be some difficulty 
 in ruiming out an exact analogy between the position in 
 Canada and in England ; but I venture to suggest that the 
 application to this subject of the fundamental rule of the 
 Constitution, as expoimded in the report referred to, affords 
 the true solution of the question, and would fuinish the 
 nearest possible analogy between the practice to be pursued 
 in each country. 
 
 In the United Kingdom, while the British Parliament 
 makes laws for the punishment of crimes connnitted l)y the 
 inhabitants, the Sovereign exercises her prerogative of 
 mercy towards such criminals, under the advice of her 
 Minister there, who is chosen as other Ministers are chosen, 
 and is responsible to the British Parliament for his advice. 
 Therefore, in the United Kingdom, this power is exercised 
 under the same restraints and with the same securities to 
 fhe people concerned as the o;lier powers of government. 
 
 This, it seems to me, is the practical result which should 
 
 be i>biained in Canada. 
 
 Tliire, while the Cmailian Parliauient makes laws for tlie 
 liuiii^hnu;iu of crimes eoinmitted by the inhabitants of 
 Canad.i. the Sovereign "hould exercise the prerogative of 
 m<'rcy towards such criminals imder the advice of her Privy 
 (Council for Canada, or of lur .Minister there, chosen as her 
 •ihcr Canadi.m Ministers ari' chosen, and responsible to the 
 Canadian P.nliament for his advice; nor, having regard to 
 the re.isons given m the report already referred to. can it be 
 coiKH'ded that the suggested responsibility of the Governor 
 to the ("olonial Office for the exercise of this |)Ower, indepen- 
 dent of, though alter, advice, would l)e a satisfactory sub- 
 stitute for t.u: responsibility to the Canadian people of a 
 Minister charged with the usual powers and duties in this 
 respect. 
 
 The second argument of Lord Carnarvon, which 
 was that of political expediency, the general argu- 
 ment that we are unetpial to the position and func- 
 tions of government, that pressure would be brought 
 to bear on the I*-.\ectitive,and that it would be very 
 much for the better, ;ind greatly to our .advantage, 
 if we would allow other people to manage our busi- 
 ness for us ;it their pleasure, is then discussed. 
 
 Now, your Lordships will observe the p.inciple 
 here laid down on behalf of Canada, a position to 
 which 1 attach importance, because it has been 
 accepted ; because it has been agreed to ; because 
 the Commission and Instructions have been altered 
 in accordance with it ; because it has become there- 
 fore the .settled rule, and that after a more definite 
 and satisfactory fashion than many rules of the 
 British Constitution; because the attempt to deal 
 with any ordinary cases, to deal with any case ex- 
 cept where Imperial interests may be involved, was, 
 upon these remonstrances, abandoned ; and because 
 it is now practically, I may say formally, conceded 
 that the prerogative is to be exercised according to 
 the rule we then propounded. What is that rule ? 
 It is the precise rule I ask your Lordships to lay 
 down to-day. It is the ride that settles this case 
 now before you. There, it was ctmtended that the 
 (Canadian I'arliament made the criminal laws; 
 that they were made by the Canadian I'arliament 
 for the Canadian people ; that they were to be ad- 
 ministered by an ICxecutive responsible to the 
 Canadian people; that of them the prerogative of 
 pardon for crimes was part ; that it was a branch 
 of criminal justice ; and that as such it was to be 
 administered by persons responsible to the people 
 concerned. vSo— exactly so, here ! With reference 
 to the Provincial laws, providing I'rovincial sen- 
 tences for Provincial offences, precisely the same 
 anal igy .applies ; and precisely the same result 
 should ensue ; and thus that body politic, that com- 
 munity which, in each case, makes the law, creates 
 the prohibition anrl defines the punishment, which 
 administers, which enforces the Law, is the body 
 politic to which the Ministers advisingthe exercise 
 of the prerogative .as a branch of the .administration 
 of justice must be responsible. 
 
 I also advert to the part of the report which 
 refers to the proposed "Royal Instructions" at 
 p.age 14, dealing with a somewhat astonishing at- 
 tempt to authorize the Governor to act in certain 
 cases in opposition to the advice of his cabinet. 
 Here, once again, a statement of the constitutional 
 rule was attempted, a statement which derives, I 
 am quite ready to admit, its main value from the 
 fact that it was accepted by the other side to the 
 controversy, the Home authorities, has been ac- 
 cepted without demur by all parties on this side of 
 the Atlantic, and therefore, niay perhaps be taken 
 accurately to express the re.ading of the constitu- 
 tion. Your Lordships will find at page 17 the 
 
43 
 
 proof of my last statement, iv. the remark made as 
 to the framingof the draiis which were transmitted, 
 and whicii are, with some siignt changes, made at 
 the suggestion of the Canadian Government, in the 
 direction of self-government, the drafts adopted : — 
 
 In fraiiiiiiK ihcsi; diafis c\i:ry eiuiiMVor lias been made to 
 meet the views i:xpresse(l in the nieni»i'.:MiluiM drawn up by 
 Mr. Ulake and tlie siib-ronnnittee ot tlic I )oiniriiijii, which w.is 
 enclosed in yom despaKli of the fitli April last, and in the 
 furilier nieniorandinii received from Mr.lilake in thiscounti y. 
 
 So that the question was settled upon the line 
 which these ptapers shew to your Lordships, and 
 therefore, we have a satislactory exposition, con- 
 curred in by the political department of the 
 country immediately concernetl, and by the 
 Imperial Government, in favor of the existence 
 and applicability of the fundamental principle of 
 the constitution, not merely as to the prerogative 
 of disallowance, but also as to the prerogative 
 of pardon ; and all that now remains for us to do 
 is to run out the analogy in the case of the 
 Province, and to deal out to the Province just the 
 same measure of political liberty, in this regard, 
 which it is entitled to in all other regards. 
 
 The next important document which is to be 
 found in this paper is the despatch of the Colonial 
 Secretary at page nj, with reference to the 
 Letellier case: and I allude to that also as markedly 
 indicative of the growth and present establishment 
 of the constitutional principle. You hnd in the 
 fifth paragraph a statement of the position of a 
 Lieutenant-Go\ernor, according to the view 
 of the Home authorities; and in the sixth 
 paragraph a statement as to the position and 
 functions of the Governor-General ; and you find 
 also a statement of the position and functions of 
 the Home authorities, as to the action of the 
 Governor-(jeneral. You lind it stated that the 
 Lieutenant-Governor has a plain right, if he feels 
 it incumbent upon him to do so, a constitutional 
 right to dismiss his Provincial Ministers; you find 
 it stated that the Governor-General is bound to 
 act upon the sustained advice of his own Ministers, 
 although it may be opposed to his own opinion, 
 as to whether a Lieutenant-Governor should be 
 dismissed or not. You find it further stated that 
 with that matter the Home authorities have vo 
 concern whatever ; that, although they offer their 
 answer to Lord Lome in an abstract case because 
 he asks it, yet they do not interfere at all, because 
 the matter must be worked out by ourselves under 
 our constitution, the Colonial odice formally 
 abandoning all intervention in internal matters. 
 
 The Canadian (iovernment and Parliament 
 adhered to their view that a Governor had no 
 longer, under the development of t)ie British consti- 
 tution, the right to dismiss Ministers who retained 
 the confidence of the f^egislature, and that his act, 
 although endorsed by the people, involved his own 
 dismissal from office. Until very lately this pre- 
 cedent was supposed to have settled that question 
 for Canadians ; but it has just recurred in an unex- 
 pected form, and on the issue so joined some com- 
 batants have changed sides. 
 
 The Letellier case, however, marked an important 
 advance. It declared and emphasized the exist- 
 ence of constitutional conditions under which the 
 independent action of a constitutional Governor 
 was brought within very narrow^ limits, and his 
 obligation to give his entire confidence to, and 
 cheerfully follow and second the advice of his 
 Ministers, so long as they were sustained in 
 
 Parliament, was manifested, and the full responsi- 
 bility of those Ministers for all acts of government 
 was, of course, in the same degree accentuated. 
 
 That was the condition of things made plain by 
 the Letellier case. 
 
 And that condition of things was reached after 
 experiences which were perhaps rather painful and 
 humiliating ; because, not very long before, there 
 had been an attempt to evoke the " God out of the 
 machine," in this very matter of pardon, with 
 reference to a crime wliich had in it some of the 
 elements of a political crime, the murder of Scott. 
 Lord i_)uflerin had assumed that the matter had 
 passed beyond the pro\ince, as he expressed it, of 
 l")epart mental administration, and had himself 
 given a direction to his Minister toprepare and pass 
 an instrument, commuting the sentence of death 
 passed upon Lepine on certain terms which he 
 thought satisfactory. Lord Dufferin's conduct 
 was approved by the Colonial Secretary ; and 
 there was a very animated debate upon it in the 
 House of Lords. Several Peers who liad formerly 
 been Governors of Colonies, and one or two for- 
 mer Colonial Secretaries, took part in that discus- 
 sion ; and there was a chorus of applause as to the 
 wisdom of Lord Dufferin's course, and much sage 
 remark on the high value and importance to a 
 colony of this independent action of a Governor, 
 showing how greatly the local politicians were 
 relieved by it, and how very much better it was 
 that tilings should be so managed for, instead of 
 hy the Colony. Lord Dufferin, himself, sent, early 
 in the business, despatches, which are to be found 
 amongst the papers, containing newspaper extracts 
 indicating that the results had justified his action. 
 But, what happened ? Why, within three months 
 of that day it was found that it was too late to 
 evoke in our affairs " the (iod out of the machine;" 
 it was found absolutely necessary for the states- 
 men who were responsible to the people of Canada 
 to assume the responsibility of the government of 
 Canada in that very particular. It was found 
 necessary for them to take up that responsibility 
 themselves, hampered and complicated as the 
 question had become by the events to which I 
 have referred ; to take the responsibility of actually 
 effecting a different disposition of the case from 
 that which had been under such favorable auspices 
 made bv Lord Dufferin. The mode they adopted 
 was, in substance, though not in form, that of the 
 Act of Grace; they proposed, upon their own 
 responsibility as Ministers, and they invited the 
 House of ("omnions to assent to, an Address to the 
 Crown stating reasons why in their opinitMi a 
 particular course should be pursued in the case of 
 the persons concernetl in the Scott affair, and 
 retpiesting that that course should be adopted. 
 And it was adopted ; we disposed of that matter 
 in our own way. 
 
 Well, that settled the question as to Pardon ; 
 it settled it forever ; for a few years later a like 
 matter came up, in which one of the actors in the 
 earlier affair had been concerned ; and which 
 created a degree of political excitement very 
 much higher than the earlier— I refer to the 
 question of Kiel. And then, as your Lordships 
 will remember, so conclusively had the former 
 transaction demonstrated the truth of the pro- 
 position that the Canadian people would and must 
 have their own affairs settled solely by persons 
 responsible to themselves, that, embarrassing as 
 the question was, there was not the slightest sug- 
 
44 
 
 gestion on the part of a single individual, from the 
 highest to the lowest, that it should or could be 
 settled otherwise than on the responsibility of the 
 Canadian Ministers, they giving their advice to 
 the Governor-tJeneral, and he acting on that 
 advice. In all the course of that agitating discus- 
 sion, conducted in the press, through the country, 
 and in Parliament, there was not the remotest 
 hint that it was possible to repeat the earlier 
 phase of the Lepine operation, or to get rid of the 
 difficulty i)y the patent plan which had then so 
 lamentably failed. 
 
 Hagakiv, C. J. — How did the difficulty arise 
 there ? It was merely a question whether the sen- 
 tence of law should be carried out. There was no 
 intervention of the pardoning question at all, w.is 
 there ? 
 
 CouNsKL — Yes, my Lord. 
 
 Hagarty, C. J. — The sentence was the sentence 
 of death. Well, if nothing had been done it would 
 have been carried out. 
 
 Counsel — Surely. 
 
 Hagarty, C. J. — How did the question arise ? 
 
 Counsel — The question whether the Executive 
 ought to e.xercise the prerogative of commuting or 
 remitting a capital sentence always arises ; and as 
 to the North-West, the law made special provision. 
 Your I^ordship is aware, no doubt, that rather less 
 than one-half of all capital sentences are executed. 
 
 Hagarty, C. J. — Oh, you may say one-third. 
 
 Counsel — Unless things have changed since the 
 time of Kiel, I have stated it accurately. 
 
 Hagarty, C. J. — I was a great many years a 
 Judge in criminal matters, I tried an immense 
 number of capital cases ; only very few sentences 
 were ever carried out. 
 
 Counsel — Statistics of them are in a paper 
 which will be handed in. It is enough to say that, 
 in at any rate the majority of cases, the capital 
 sentence is not carried out. And, as that paper 
 shows, the reason is plain ; namely, because in 
 capital cases, and in those cases only, the sentence 
 which the Judge is obliged to give is the maximum 
 sentence for the crime. In all oth". cases he is 
 allowed a discretion, and he attempts to fit the 
 punishment to the crime. But, where he comes to 
 the capital sentence, there he must give the maxi- 
 mum sentence of the law ; and it is consequently 
 well understood to be the duty of the Executive to 
 consider and to moderate ; to do that which in 
 other cases the Judge does ; to moderate and to fit 
 the punishment to the crime; and it .so happens 
 that capita', punishment does not, m the view of 
 the country at large, fit the crime in the majority 
 of instances. It is the same in England ; about 
 one-half of the capital sentences are executed. 
 
 What I say is this, that with reference to Lepine 
 first, and to Riel later, each of whom stood under 
 sentence of death, the question came up in the 
 most formal manner, as to whether the sentence 
 should be commuted ; and by whom ; and how ; 
 and under what circumstances ; and we have a 
 most vivid illustration of the rapid growth and 
 development of sound constitutional principles, 
 when we look at the attempt that was made in 
 Lepine's case ; the failure of that attempt ; and 
 the unanimous adoption, in the later and greater 
 and more difficult case, of the view that the affair 
 should be settled on the responsibility, and the 
 sole responsibility of the Ministers of the people 
 concerned. 
 
 Thus I claim to have shown clearly that the 
 
 fundamental principle of the British Constitution 
 is responsible government ; that the principle 
 extends and applies to the exercise of prerogative 
 powers ; that its application includes the preroga- 
 tive of pardon ; that this principle, thus extended 
 and inclusive, applies to the constitutions of Canada 
 and the Provinces, each in its own domain ; and 
 that its enforcement recpiires that the Province 
 which makes the law and provides the sanction 
 shou'd also, through its responsible Ministers, de- 
 cide to what extent the sentence of the l;iw shall 
 in any given case be executed or remitted ; and 
 forbids that any otiier power should be .lilowed to 
 meddle with the law, impair its effectiveness or 
 control its administration, by altering the sentence 
 it provides. 
 
 I now ask your Lordships, without reading it, to 
 be permitted to make part of my argument, the 
 paper commencing at page 23 of this print, being 
 the desp;itch of the Lieutenant-CWnernor of Ont- 
 ario to the Secretary of State, with reference to 
 the yueen's Counsel case, to which my learned 
 friend referred. A large portion of this state paper 
 has regard to the specialties of the (,)ueen's Coun- 
 sel case, and with that I do not ask or propose at 
 all to trouble your Lordships A part refers to the 
 circumstances under which the decision in 
 Lenoir ?'. Ritchie was reached, and the dicta in 
 Lenoir v. Ritchie were uttered, and to that I ask 
 your Lordships Hi refer in order te) save the time I 
 should have to take in stating those circumstances. 
 (Jn the 32nd page commences a general argument 
 upon the question of Provincial rights, in matters 
 of prerogative, of the highest value, containing 
 historical statements, and chains of reasoning to 
 which I desire to attract your Lordships' attention, 
 and which in order to save time I ask your Lord- 
 ships to permit me to make a part of my argument. 
 
 In the result the remote but possible case of 
 Imperial interests is fully met by the saving of 
 Her Majesty's prerogative, which enables her to 
 act in any case in which she thinks that the peace 
 and the foreign relations of the Empire might be 
 imperilled by the execution to the full of an undue 
 sentence .against some subject of a foreign power. 
 In the result therefore you have here to deal with 
 domestic and internal concerns alone; and that 
 which is domestic and internal, ex coiicessis, con- 
 cerns only the people of the Province of Ontario. 
 It is their law, their power of self-government, 
 ^/ic(> plan for effectuating their laws, ///f(> method 
 of tempering justice with mercy, (if that be the 
 proper phrase, but I prefer to say of accurately 
 carrying out the intent and spirit of their laws) ; 
 it is their concern and theirs alone, which this 
 power touches. To whom then, and to whom 
 alone should this power be committed ? To whom, 
 under constitutional principles? To whom, ac- 
 cording to the light of reason ? Whichever way 
 you look at it, from whatever point of view, the 
 answer is the same ; to the people of Ontario. It 
 is a branch of the administration of justice ; it is a 
 part of the imposition of punishment ; it is a con- 
 dition, without which the imposition of punish- 
 ment may itself involve injustice ; it is an essential 
 element in the operation of the law ; it is the 
 completion, to its full extent, of the work of the 
 Local Legislature, dealing with a local offence, in 
 which a local public is interested, the prohibition 
 for which is created by a Local Legislature, the 
 punishment for which is provided bv a Local 
 Legislature, the modifications of which punish- 
 
45 
 
 ment are, therefore, also to be proviiled under the 
 authority of the same Legislature. 
 
 Besides, there are other ways of dealing with 
 this matter, confessedly, even as to crimes, within 
 the local power. There is the ho//** />r'>sf(/H(. Who 
 directs a nolle prosequi? The Attorney-Cieneral 
 of Ontario, There is the right and custom that 
 the local law officer of the Crown, if he deems the 
 interests of justice will be best so served, may ab- 
 stain from offering evidence upon a trial, and thus 
 secure a verdict of not guilty. Hy whose author- 
 ity ? That of the Attorney-Cieneral of Ontario. 
 All that may and must be done by the local auth- 
 ority. Hut, if those methods of practically exon- 
 erating fnmi the consequences of the Provincial 
 law have not been adopted, and if the (juestion is 
 whether the sentence has been excessive, or 
 whether the convicti )n has been mistaken, or 
 whether the condition of the prisoner is such as 
 to render commutation necessary to justice — if any 
 of these ipiestions arise, then 1 say that with 
 regard to them, as with regard to the others, the 
 local authority alone can clival. 
 
 1 told your Lordships that I would refer to some 
 statutes which seem to me to throw some light on 
 them-.tter, and which should be stated before the 
 argument is closed. 
 
 The .\ct of Union, 3 and 4 Vic, Imperial, 
 Ch. 35, the Act reuniting the Provinces provided 
 that :— 
 
 notwitlistanding anyttiini; in the Act contaitied it should be 
 lawful for tlui QucL-n 10 autliorize the I.ieuteuant-Govoriior 
 of Canada lo cxccutf wiiliiii any pans of the Province, not- 
 wilhstaiidinj; the picsi^nce of the (loveiiuir. such of the 
 powers, functions, and .luthorities, as well judicial as other, 
 which before, and at the time of passin^^ this Act, vested in 
 the Governor, Kit lUiMiant-Governor, or person administer- 
 inj! the GovernnuMit of the Province of I'pper Canada and 
 Lower Canada respectively, or of either of them, and which, 
 from and after the said reunion of the said two Pro- 
 vinces, shall become vested in the Governor of the said Pro- 
 vince of Canada ; and to authorize the Governor of the Pro- 
 vince of Canada to assitjn, depute, substitute, and appoint 
 any person or persons jointly and severally to be his deputy 
 or deputies, within any part or parts of^ the I'rovince of 
 Canada, to perform ami execute such of the powers, func- 
 tions and autlioril' s, as he pleases. 
 
 The statute of Canada, 4 and 5 Vic, 1841, ch. 24, 
 Sec. 4S :— 
 
 And be it declared and enacted that where the Queen's 
 Majesty, or the Governor, I.ieutenant-Governor, or person 
 administeriii); the government ot this Province for the time 
 being, shall be pleaseil to i^xtend the Royal mercy to any 
 offender convicted of any felony punishable with death or 
 otherwise, and by warrant un<ler the Royal Sign Manuel, 
 counter-signed by one of tlu^ principal Secretaries of State, 
 or by warrant mnier the hand and seal at arms of such 
 Governor, I.ieutenant-Governor, or person administering 
 the government as aforesaid, shall grant to such offender 
 either a free or a conditional pardon, the discharge of such 
 otlender out of custody in case of a free pardon, and the per- 
 formance of the <oudition in the case of a condition of par- 
 don, shall have the effect of a pardon under the Great Seal. 
 
 There your Lordships find what I said I would 
 shew. I said 1 would shew you the e,\istence of the 
 notion that convenience miglit be served by a con- 
 current exercise of this prerogative, by the possi- 
 bility, at any rate, of a concurrent exercise. There 
 you find preserved that concurrent power in the 
 Queen, presumably on account of the possible 
 Imperial interests to which I have referred. Take 
 our relations with the United States. On more 
 than one occasion it has happened that Imperial 
 intervention has taken place, intervention which 
 may be called in a sense diplomatic, with reference 
 to sentences imposed upon persons who had invaded 
 the peace of the country ; notably in the case of the 
 
 Fenian Raid, after which a very large number of 
 persons, citizens of the United States, were con- 
 victed, and severely sentenced; but on y^ry strong 
 representations made by the Inif)erial authorities, 
 their sentences were, within a brief sp.ice, com- 
 muted by our Ministers, not perhaps very much to 
 the taste of the people of Canada. 
 
 Your Lordships recollect the comnitinioations 
 which passed at an earlier period, iS3;-i.S38, with 
 reference to the political crimes of those days. The 
 Imperial prerogative, tlierefore, was maintained ; 
 but not exclusively. The scheme, as I ask your 
 Lordships to determine, wasthis. It may beimpor- 
 tant to preserve the Imperial right to act where 
 Imperial interests are concerned ; but in nine hun- 
 dred and ninety-nine cases out of a thousand, no 
 such interests can exist ; and wherever they do not 
 exist, then the right is exclusively in the local 
 authority ; and that authority is the Governor, 
 Lieutenant-(k)vernor, or person administering the 
 government of the I'rovince. 
 
 Thus, you (ind an Act of Parliament at this early 
 date of '41, recognizing tlie existence, in the Lieu- 
 tenant-Governor of the Province, of the power to 
 p-irdon, and providing that his action shotild have 
 the effect of a pardon under the (ireat Seal, 
 
 In the same year, ch. 35, sec. 6i : — 
 
 And be it enacted that it shall be lawful for the yueen's 
 Majc^sly, and for the Governor, I.i(nittfnant-Governor, or per- 
 son administering the Goverinnent of the Province, to extend 
 the Royal mercy to any person imprisoned by virtue of this 
 Act, although he shall be imprisoned for imn-payment of 
 money to some person other than the Crown. 
 
 The Royal prerogative did not extend to taking 
 away a private right ; but here is an Act which ex- 
 tends to that case ; and how is the power given ? 
 To the Queen's Majesty ; and also to the Governor, 
 Lieutenant-( Governor, or person administering the 
 Government. 
 
 H.'\GARTv, C. J. — They kept up the same \f.ords 
 down to the last Criminal Act of the Dominion. 
 
 Cou.NSKL. — Yes, my Lord ; your Lordship sees 
 you get the "Queen," and you get also the 
 " Governor." 
 
 Then comes the Consolidated Statute of Canada, 
 1859, ch. gg, sees. 112 and 113 : — 
 
 The Queen's Majesty, or the Governor, may extend the 
 Royal mercy to any person sentenced to imprisonment by 
 virtue of any of the foregoing Criminal Acts, ahhongh he may 
 be imprisoned for non-payiiu'nt of money to some party other 
 than the Crown. ♦ * * 
 
 When the Queen's Majesty, or the Governor, is pleased to 
 extend the royal mercy to any offender convicted of a felony, 
 
 then it goes on in the words of the section to which 
 I have already referred. 
 
 Then, the statute of the Dominion, 32 and 33 
 Vic, ch. 29 deals with it as the act of the Crown : — 
 
 The Crown may extend the Royal nu^rcy to any person. 
 When the Crown is pleased to extend the Royal mercy to any 
 ofti'uder punishable with death, 
 
 and so on. 
 
 Then so late as 1887, ch. 181 : — 
 
 When the Crown is pleased to extend the Royal mercy, 
 
 and so on, 
 
 and grant to such offender either a free or a conditional par- 
 don, by warrant under the Royal Sign Manuel, counter-signed 
 by one of the principal Secretaries of State, or by warrant 
 under the hand and seal at arms of the Governor-General. 
 
 Then again, ch. 181, sec. 40, Revised Statute of 
 Canada : — 
 
 The Crown may commute the sentence of death passed 
 upon any person convictedof a capital crime to imprisonment 
 
46 
 
 in the penitfintiary for life or for any term of years not less 
 than two years, or to irnprisoiiiiuint in any otiii r jail or i)lac(! 
 of ('(irilinctiM'iit for any iiiMicid not Uiss than two years, wiili or 
 witlioiit li.ird labor, .'iiiil an inslrninciil niulrr ilic hand and 
 seal at arms of the Governor (ieneial, dirlariiit; sncli roiri- 
 nnitation of sentence of St.ite, i r of the imder Secretary of 
 Slate, sh.ill Ini siifticiiMit authority, 
 
 and so on ; and 
 
 nothinj! in till' Act sliall in any manner limit or affect Her 
 Majesty's Royal [irerojjativc! of mercy. 
 
 There, yc: still get the notion of a double power. 
 Then, of the Provincial Statutes I refer your 
 Lordships to the Revised, ch. i, sec. 30 : — 
 
 Where a peniiiiary penalty or a forfeiture is imposed for a 
 controveiition of any Art. tneii if no other mode is prescribed 
 for the recovery thereof the penalty or forfeiture shall he re- 
 coverable with costs by civil action or proceeding at the suit 
 of the Crown only, or of a |)riv.ite party sniim as wi^ll for the 
 Crown as for himself, in any form alloweil in such case by 
 the law of this Province, Ixfore a Court liavinji jurisdiction 
 to the amount of the penalty in cases of civil contract, upon 
 the evidence of one ciedible witness otli'r than the plaintift 
 or party interested. If no other provision is made for tin; 
 aiipropriation of tin- penalty or forfeiture, one-half theieof 
 shall biMont; loihe Crown and the otlu'r half sli.ill bi^lom; to 
 tlii^ private plaintift, if any then; he, and if there is none, 
 the whole shill helont; to the Crown. 
 
 Sec. 31 prescribes that there may be recovery 
 upon indictment. 
 Sec. 32 : — 
 
 Any duty, penalty or sum of money, or the proceeds of any 
 forfeiture which is by any. Act ^iven to the Crown, shall, if no 
 oiher provision be made respecting it. lorm part of the con- 
 solidated revenue fund of this Province and be accounted 
 for and otherwise dealt with accordint;ly. 
 
 Is that law ? Have we the right to do that ? 
 Here is a penalty inflicted in pursiinnce of our so- 
 called I'rovincial criminal jurisdiction; and it is 
 provided that the fine shall form part of our con- 
 solidated revenue fund. That is surely within 
 our power. Then cannot we do what we will 
 with our own money, which is part of our own 
 consolidated revenue fund ? C'annot we decide to 
 give back the money, or a part of it ; or to remit a 
 portion which ought to be but has not yet been 
 paid in to our consolidated revenue fund ? If the 
 Legislature can do that, can it not authorize the 
 Executive to do it ? Is not that clear ? And yet, 
 that is just what this Act proposes, 
 
 Sec. 33:— 
 
 If any sum of the public money is l)y an Act appropriated 
 for any service, or directed to he p.iid by the Lieutenant- 
 Governor — then if no other provision is made respitctinn it, 
 such sum shall he p.iyable under warrant of the I.ii'Utenant- 
 Governor directed to the Treasurer of the I'rovince, out of 
 the consolidatiul revtuiue fund. 
 
 That surely is within our power. Yet my 
 learned friends may perhaps complain that we are 
 giving additional fimctions to the Lieutenant- 
 (iovernor ! 
 
 R, S. O. ch. 20, sees. 25 to 27 : — 
 
 Whereas it is expedient that the li.teciitive Government 
 should be empowered to relax the strictness of the laws 
 relative to the collection of the revenue in cases where with- 
 out such relaxation ureal inconvenience or Kreat hardship or 
 injustice to individuals could not be avoided. 
 
 Therefore, the Lieutenant-Governor, whenever he deems 
 it right, and conducive to the public good, may remit any 
 duty or toll payable to Her Majestv, imposed or authorized 
 to be imposed by anv such Act, for any contravention of 
 the laws relating to the collection of the revenue, or to the 
 management of any public work producing tolls or revenue 
 although any part of such forfeiture or penalty be given by 
 law to the informer or prosecutor, or to any other person ; 
 and such remission may be made by any general regulation 
 or by any special order in any particular case, and may be 
 total or partial, conditional or unconditional; and if con- 
 ditional and the condition be not performed, the order made 
 in the case shall be null and void, and all proceedings may be 
 had and made. 
 
 If tlie Lieiitcnani-Governor diret^ts that the whole or any 
 part of any penalty impiised by any law riOating 10 the ri^venue 
 be remitted or returned tcj the oficiider, such remission or 
 return shall have the same effect ,ts a p.irdon has in tin: case 
 of a criminal ofleuce,aiiit the oKeiice for which the penalty is 
 incurred shall therc'aft.r have no legal etiect prejudicial to 
 the party to whom the remission is granted. 
 
 Her Majesty's .Altorni'y-Gener.il for Ontario, or other law 
 officer, may sue for .iiid recovir in Her M.ijesiy's nanu' any 
 penalty or forfeiture impc>s<rt by any l.iw ri^lating to the 
 revenue before any Court or othiM' jiidlciil anihority before 
 such penalty or forfeiture? is ri^cover.dile imdi r such l.iw, or 
 m.iy iliryct the discontinnanci' of any anion for such penalty, 
 by whom or in whose name soevei' the s.mu? has been 
 brought, anil in such case tlii: whoh? of the penalty or for- 
 feinire shall belong to Her Majesty for the pulilic use of the 
 Province, unless the Lieutenant-Governor in ("oiincil allows, 
 as he may if he sees fit, any portion thereof to the seizing 
 officer, 
 
 and so on. 
 
 Then Revised Statute, ch. (jo, an Act respecting 
 the remission of certain penalties ; sec. go : — 
 
 Where ,1 pecuniary jieiLilty or forfeiture is iinposi'd by any 
 Act of this Province, or by any lUher Act now enforced in 
 this Province' within tin? legislative authority of this Pro- 
 vince, the Court or Judgt? h.iving cognizanci! of the procc^ed- 
 ings may at any time after the commeiK emi'iit thereof, remit 
 in whole or in p.irt any sum of money by such .'\ct imposed 
 as a penally or forfeiture on a convicted officer. 
 
 There is a case in which it was thought fit to 
 give the power o( remission to another than the 
 l<I.\ecutive. 
 
 HAc..\urv, C. J,— There was a singular process 
 as regards escheats. The Court could reinit. 
 
 C3oi;nsel — Yes, my Lord. Here you find the 
 procedure for the attainment of justice perfected 
 after the fashion the Legislature thought most 
 appropriate to the purpose. Here they thought it 
 was expedient to give to the judicial authority 
 which had lieen concerned in applying the fine, and 
 which, therefore, would be cognizant of all the cir- 
 cumstances, and would act in a judicial spirit, the 
 power of remitting and in effect of modifying the 
 sentence. Have the Legislature that power ? Is 
 not that exercising the prerogative of pardon ? 
 What else is it but remission or commutation ? 
 The Legislature surely could do that. If they 
 could do that, then this Act is valid. 
 
 Then the .\ct provides: — 
 
 This Act shall not be held to give to a iiolice magistrate or 
 justice of the peace the authority Ikmimii mentioned. 
 
 The Lieuten.int-Ciovernor in (Council shall also have pow- 
 er at any lime to remit any such piMialty or forfeiture in 
 whole or in part, unless the same is imposec'. by the Act re- 
 spiicting tilt! Legislative .\ssembly, (>r by some Act respeciing 
 election of members of Legisl.itivi' Assembly, or is recover- 
 able in respi^ct of any offence coimnitted in connection with 
 an election of a member of the s.iid Assembly, 
 
 Vor obvious political reasons it was not thought 
 fit that an l"^\ecutive formed of one political party, 
 and controlling the councils of the (iovernment, 
 should be permitted to remit sentences in respect 
 of political offences; and so the power as to that 
 is not granted. 
 
 That series of Provincial Legislation at once 
 illustrates and corroborates the theory which I 
 advance as applicable to the case. Here, we are a 
 Province with large powers, a political organiza- 
 tion, possessing in many respects the characteris- 
 tics of an independent State, and exercising sover- 
 eign power over a large portion of those subjects 
 on which depend the happiness, the peace, the 
 prosperity of the inhabitants. Amongst these is the 
 subject of making and eiiforcing by fine, penalty or 
 imprisonment laws on a vast range of matters. A 
 part of the machinery for enforcing and dealing 
 with such laws, is that providing for the remission 
 of the sentence, in cases in which justice or expedi- 
 
47 
 
 ency may require such remission. That part of the 
 whole power, therefore, appertains to the Province 
 and must i)e aihninislered hy tin; Ministers of the 
 Province, under those responsibilities lo its people, 
 which are the fundamental safeguarils of liberty 
 under the ISritish Constitution. 
 
 And now, my Lords, I close the arguments which 
 have occurred to me upon ;i case, which has led us 
 into paths somewhat imwonted in a Court of Law ; 
 yet are they paths which we must traverse when 
 the judiciary is called to the arduous and exalted 
 oflice of interpreting the constitution of the country. 
 
 I am glad to believe that the relevant principles 
 of interpretation are pl.iin and clear; and that 
 they are such as have been stated, with th(! terse- 
 uesa and lucidity of which lie is a master, by the 
 
 learned Chancellor in the judj;ment below. I trust 
 that your Lordships will be able to concur in that 
 judgment ; to aj'ree th.it its reasoning applies to 
 and governs the disposition of tlie cause ; and 
 thus to close, so far as the highest Court of this 
 I'rovince can close it, the controversy which has 
 been waged for so many years on the relative 
 positi(m of the Provinces and the Dominion of 
 Canada, by alfirming that the terms of the H. N. A. 
 Act grant, and its effective operation involves, 
 the same ample, adequate and sovereign measure 
 of authority in the executive as has, under the 
 decisions of our highest Imperial Court, been ac- 
 corded in the legislative department of the Pro- 
 vincial Constitution.